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

[2016] NSWCA 70

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Civil appeal
3. › Function of appellate court
4. › Challenge to findings of fact
5. › Whether open to appellate court to disturb trial judge's findings on credibility and reliability
6. › Appellate court more reluctant to intervene where trial judge declined to make finding in favour of party bearing onus
7. › Supreme Court Act 1970 (NSW), s 75A
1. Appeal
2. › Civil appeal
3. › Adequacy of reasons
4. › Whether reasoning process compartmentalised
5. › Reasons to be read as a whole
6. › Reasons not to be construed minutely and finely with an eye keenly attuned to the perception of error
1. Torts
2. › Negligence
3. › Workplace injury
4. › Plaintiff failed to prove mechanism of injury
5. › Whether breach of duty could be established absent finding as to how injury occurred
1. Evidence
2. › Jones v Dunkel inference
3. › Failure to call witnesses
4. › Whether inference valid where no reason to believe witnesses in camp of party or would recall events

Quick Take

An appellate court is more willing to intervene where a trial judge has made a positive finding of fact in favour of the party bearing the onus than where the trial judge has declined to make such a finding. A Jones v Dunkel inference is not available where there is no basis for thinking uncalled witnesses would have actual recollection of events, or where it is unclear that the witnesses were in the camp of the party that failed to call them. Where a plaintiff fails to prove the mechanism of a workplace injury, no breach of duty can be established regardless of whether the injury itself is conceded.