Small v K & R Fabrications (W'gong) Pty Ltd

The appeal concerned a workplace injury sustained by the appellant, Mr. Small, against his employer, K & R Fabrications (W'gong) Pty Ltd. Mr. Small alleged negligence on the part of his employer, but the trial judge found no liability. The appeal was heard by McColl, Basten, and Simpson JJA in the Court of Appeal.

The central legal issues before the Court of Appeal were whether the trial judge erred in finding no liability, particularly concerning the appellant's failure to prove the mechanism by which his injury was suffered. The court also considered the function of an appellate court in reviewing a trial judge's findings, the onus of proof resting on the appellant, and whether the trial judge's reasons for decision were adequate and properly considered. The applicability of the *Jones v Dunkel* inference was also a point of contention.

The Court of Appeal affirmed the principle of judicial restraint, stating that appellate courts are generally reluctant to disturb a trial judge's findings on credibility and reliability, especially where the trial judge has declined to make a finding of fact in favour of the party bearing the onus of proof. The court emphasised that the reasons for a decision must be read as a whole and not subjected to minute scrutiny for perceived error. Crucially, without a finding as to the specific mechanism of the injury, it was not possible for the trial judge to conclude that the respondent had breached its duty of care. The court also found that the *Jones v Dunkel* inference was not applicable in this instance, as there was no reason to believe the absent witnesses would have been able to recall the relevant events or conversations.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.