25 July 2007
Giles JA; McColl JA and Handley AJA
In Brief
- In this short and succinct decision the Court of Appeal refused to overturn the trial judge's findings in favour of the plaintiff, who suffered injury after having to push a loaded trolley up a ramp to a cellar door at a hotel.
Background Circumstances
- After the plaintiff had completed seven deliveries to the cellar without mishap, he emerged from the cellar door at a walking pace to return to his truck for the next load when he slipped at the top of the ramp and fell heavily on his buttocks.
- The plywood had not been painted or treated with an abrasive coating. It had been raining for about 24 hours immediately prior to the accident and there was lay evidence, accepted by the trial judge, that the ramp was slippery when wet.
- The plaintiff's expert stated in his report that timber which had been wet for 24 hours or more had a tendency to develop a surface slime and, once the timber was saturated, further rain would create a film on its surface. He concluded that after 24 hours of rain the ramp would be slippery for a person wearing the footwear worn by the plaintiff (hiking boots with rubber soles).
- The defendant's expert did not challenge these opinions and conceded in cross-examination that plywood exposed to wet weather for some time could develop a slimy surface and become slippery.
District Court Decision
Court of Appeal Decision
- In summarily rejecting this submission, Handley AJA found that this evidence, although undisputed, could not in itself be decisive, particularly in view of the evidence that it had been raining for 24 hours before the accident, and the absence of any evidence as to the conditions on earlier occasions when the ramp was used without incident.
- His Honour also dismissed a further challenge by the defendant that the trial judge's admission of certain aspects of the plaintiff's expert reports was in error as they contained unsubstantiated assertions. His Honour supported the trial judge's conclusions, finding that the statements were not unsubstantiated assertions but were in fact supported by reasoning in the expert’s report.
- His Honour concluded that the trial judge's judgment was supported by both lay and expert evidence which she was entitled to accept.
- For the above reasons, the appeal was dismissed with costs.
Implications
"Where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion."
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