MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD [1988] NSWCA 93

MATTHEWS v RILEY MARINE CONSTRUCTIONS PTY LTD [1988] NSWCA 93

By majority, the appeal was dismissed because the appellant could not rely on a ground of negligence not put to the defendant's witnesses or made the basis of his case at trial. The trial judge's preference for the respondent's account was not based on witness demeanour, permitting the appellate court to review probabilities. However, the issue regarding inadequate instructions for ascent was not fully litigated, and it is possible further evidence could have been called. Therefore, the trial judge was not shown to be in error and the appeal failed.

Parties
Appellant: Christopher Frances Matthews; Respondent: Riley Marine Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
24 November 1988
Procedural Posture
Appeal / Appeal Judgment
Outcome
Appeal dismissed by majority (McHugh JA and Clarke JA). Kirby P dissenting would have allowed the appeal and apportioned 20% contributory negligence to the appellant.
Legal Topics
Negligence, Safe System of Work, Industrial Safety, Employer's Duty of Care, Appeal Procedure, Judges' Reasons, Credibility of Witnesses
Tort Law Employment Law Negligence Safe System of Work Industrial Safety Employer's Duty of Care Appeal Procedure Judges' Reasons +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Christopher Frances Matthews

Appellant

Riley Marine Constructions Pty Ltd

Respondent

Procedural Posture

Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred in accepting the respondent's evidence over the appellant's regarding the instructions given for the ascent and the cause of injury;
  2. 2 Whether failure to give specific instructions constituted negligence by the employer;
  3. 3 Whether the appellant can rely on grounds of negligence not fully litigated at trial;

Ratio Decidendi

By majority, the appeal was dismissed because the appellant could not rely on a ground of negligence not put to the defendant's witnesses or made the basis of his case at trial. The trial judge's preference for the respondent's account was not based on witness demeanour, permitting the appellate court to review probabilities. However, the issue regarding inadequate instructions for ascent was not fully litigated, and it is possible further evidence could have been called. Therefore, the trial judge was not shown to be in error and the appeal failed.

Court Disposition

Appeal dismissed by majority (McHugh JA and Clarke JA). Kirby P dissenting would have allowed the appeal and apportioned 20% contributory negligence to the appellant.

Orders

  • Appeal dismissed with costs by majority.
  • Kirby P (dissenting): would have set aside the judgment for the defendant and entered judgment for the appellant, remitted matter for assessment of damages, with 20% reduction for contributory negligence.