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Written by Peter Carter

March 22, 2022

What happens if after years of preparation for a trial – a judge fails to give reasonable consideration to a party’s evidence and then provides hopeless reasons for the decision he made?

Consider the case of Anthony Cavanagh who sued his employer for an over period of time repetitive strain injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence –the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

who sued his employer for an over period of time injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence – the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Leeming JA Simpson AJA N Adams J, 15 March 2021 Read case

Categories: Farm worker injury

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