GEORGE v THE BROKEN HILL PROPRIETARY COMPANY LIMITED & 1 ORS [2003] NSWCA 365

GEORGE v THE BROKEN HILL PROPRIETARY COMPANY LIMITED & 1 ORS [2003] NSWCA 365

Leave to appeal was warranted because BHP's safety documents were capable, in the absence of explanation from BHP, of supporting an inference that BHP breached its duty to keep the Sinter Plant safe, and the trial judge failed to consider that evidentiary significance. Leave was also warranted against Convatech because the trial judge failed to address the alleged non-delegable duty owed by Convatech as employer. Registrar Schell's extension of time and dismissal of the appeal as incompetent could not stand because the extension relied on irrelevant or abandoned matters and the claimant had an arguable case that damages could exceed $100,000.

Jurisdiction
Australia
Judgment Date
15 December 2003
Procedural Posture
Application for Leave to Appeal and Review of Registrar's Decision in Personal Injury Negligence Proceedings / Court of Appeal Leave Application and Review of Dismissal of Appeal as Incompetent
Outcome
Leave to appeal granted; opponents' motions to dismiss the appeal as incompetent dismissed.
Legal Topics
['leave to Appeal' 'incompetent Appeal' 'extension of Time' 'burden of Proof' 'adverse Inference' 'non Delegable Duty of Employer' 'breach of Duty of Care' 'damages Threshold']
['practice and Procedure' 'negligence' "occupiers' Liability" 'employment Law' 'personal Injury'] ['leave to Appeal' 'incompetent Appeal' 'extension of Time' 'burden of Proof' 'adverse Inference' 'non Delegable Duty of Employer' 'breach of Duty of Care' 'damages Threshold']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Review of Registrar's Decision in Personal Injury Negligence Proceedings / Court of Appeal Leave Application and Review of Dismissal of Appeal as Incompetent

Legal Issues

  1. 1 ["Whether the claimant's proposed appeal from Phegan DCJ's dismissal of his negligence claim was sufficiently arguable to warrant leave to appeal." 'Whether documentary evidence was capable of founding an inference that BHP breached its duty of care despite no direct evidence of how the dunnage fell.' "Whether the trial judge erred by failing to address Convatech's alleged non-delegable duty as employer." 'Whether Registrar Schell erred in granting the opponents an extension of time to bring motions dismissing the appeal as incompetent.' 'Whether the claimant had an arguable case that he could recover damages in excess of $100,000.']

Ratio Decidendi

Leave to appeal was warranted because BHP's safety documents were capable, in the absence of explanation from BHP, of supporting an inference that BHP breached its duty to keep the Sinter Plant safe, and the trial judge failed to consider that evidentiary significance. Leave was also warranted against Convatech because the trial judge failed to address the alleged non-delegable duty owed by Convatech as employer. Registrar Schell's extension of time and dismissal of the appeal as incompetent could not stand because the extension relied on irrelevant or abandoned matters and the claimant had an arguable case that damages could exceed $100,000.

Court Disposition

Leave to appeal granted; opponents' motions to dismiss the appeal as incompetent dismissed.

Orders

  • ['Grant leave to appeal.' 'Claimant to file his Notice of Appeal within 21 days of these orders.' "Opponents' motions dated 4 December 2002 dismissed." "Opponents to pay the claimant's costs of the motions before Registrar Schell." 'Costs of the leave application to be costs in the appeal.']