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Evidence, inference

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B v U [2012] NSWSC 1416. Pembroke J.

[In 9] Where an inference is open and the defendant elects not to give evidence "the court is entitled to be bold": SS Pharmaceuticals v Qantas [1991] 1 Lloyd's Rep 289 at 293 (Gleeson CJ and Handley J).

Shao Wen Zheng v Guo Yong Yang & Ors [ULIS] [2008] NSWWCCPD 144. Roche DP. 16.12.08.

[In 81+] "It is possible that Mr Yang performed the work under a contract with the Third Respondents. It is equally possible that Mr Yang performed the work as part of an arrangement with Ms L Lu. There is no direct evidence.

"Where direct proof is not available it is possible to draw an inference from known facts.

"However, those facts must do more than 'give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture' (per Dixon, Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans PL (unrep, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480-481.

"The law 'does not authorise a court to choose between guesses': per Dixon CJ in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305.

"The evidence does not support a finding, inferentially or otherwise, of a contract between Mr Yang and the Third Respondents.

"The evidence does not, however, establish that they conducted a trade or business, or that the work being performed by Mr Yang was part of any work or business undertaken by them.

"I note that the expression 'work undertaken by the principal' is not limited to work that the principal has contracted to do for someone else, but also covers any work that is part and parcel of the business undertaking of the principal: per Dixon CJ in Frauenfelder v Reid [1963] HCA 3; (1963) 109 CLR 42 at 50.

"The mere fact that a person owns and rents a residential property does not establish that he or she conducts the business of a boarding house."

A: Mr R Taylor, inst Keddies. R: Mr A Baker, inst Sparke Helmore


Suresh v Jacon Industries P/L [2005] NSWCA 202. Basten JA, Mason P & Santow JA agreeing. 22.06.05.

The appellant’s lathe operator husband was killed in late 1997 when struck by a metal rod at work. O’Reilly DCJ had found for the employer on liability.

In his leading judgment, Basten JA said: “There was no finding by the trial judge that the deceased was or should have been aware of the relevant hazards. Nor was there any evidence as to the nature of the training or expectations of machinists in that regard. Accordingly, once the hazard was admitted by Mr Varga, it was a matter for the respondent company to establish that it took all reasonable steps to draw the nature of the hazard to the deceased’s attention and ensure that he understood the means of reducing such hazards to a reasonable level. The company called no evidence at all. The proper inference from the evidence of Mr Rutten and Mr Varga . . . is that the deceased was given no warning at all in this regard.

“No doubt partly in response to the allegation that the deceased was not qualified to work the CNC lathe or work it without supervision, supported in part by [expert engineer] Mr Burn’s reports, which the trial judge clearly rejected, the respondent company relied upon the statements of Mr Rutten and Mr Varga as to the competence, experience and care which the employer was satisfied the deceased exhibited.

“That evidence was, however, potentially double-edged for the employer. Once it was accepted that the deceased did have such qualities, and if it be accepted (as I would accept) that the deceased nevertheless proceeded to use the machine with a less than ideal bush, with too long an extrusion of bar stock and at the speed established, there is an inference that he simply had no understanding of the nature of the hazard he faced. That conclusion is given some further, if limited, support by the fact that when something drew his attention to the area of the headstock, he clearly had no immediate apprehension as to what might be occurring.

“In these circumstances, I would accept the appellant’s assertion that the employer unreasonably failed to give the deceased sufficient instruction to allow him to appreciate the extent and nature of the hazards involved in machining bar stock with a significant degree of extrusion from the headstock and the means of avoiding them. As a result, the employer failed to take reasonable steps to provide a safe system of work.”

Basten JA rejected contention of contributory negligence. “However, once it is accepted that the hazard about which the employer should have given a warning was precisely that which the employee did not anticipate, it is not logical to expect the employee to anticipate and avoid the very danger which has been created. Something else must be added to the equation in order to say that the deceased failed to take reasonable care for his own safety.”

Appeal allowed with costs, matter remitted for assessment.

Smith v Sydney West AHS [2008] NSWCA 267. Court: Beazley, Giles, Macfarlan JJA. 22.10.08. 

Then [17]: "In our opinion, the risk of injury to the appellant was reasonably foreseeable. The patient had difficulties with mobility and was frail and doddery. His physical condition was such that he needed assistance to come to a standing position from being seated in the shower chair. He also needed assistance to be walked to the easy chair to which he was to be transferred ...

"In circumstances where the appellant was constant in her evidence that the transfer of the patient could have been managed with two people,

"it can be inferred that there was a foreseeable risk that unless that is how the transfer was performed there was a risk that some such incident as happened here might have occurred.[in 18]

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