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[2003] NSWCA 268
respondent. Appeal dismissed with costs. The District Court judgment for the respondent remained undisturbed.
The Court of Appeal upheld the trial judge's liability finding even though nobody saw the worker fall. It held that a judge can draw conclusions from circumstantial evidence where those conclusions go beyond speculation. Evidence about the truck's platform, the nearby trees and the freshly broken branch supported the findings of negligence. The Court did not accept that the evidence established the truck was travelling above 20 kilometres per hour, but that unsupported inference was not necessary to uphold the result.
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2,251 words · generated 30/09/2026
Progressive Recycling Pty Ltd appealed a District Court judgment awarding Craig Eversham $958,341.96 for personal injuries. The appeal was limited to liability, and the central question was whether the trial judge had sufficient evidence to draw the inferences of negligence he made ([1], [6]).
No linked legislation citations have been extracted yet.
Eversham was part of a three-person crew collecting recyclable material from roadside bins along the Great Western Highway at St Marys. He worked as a runner, riding on a platform at the rear of the truck. On 10 April 1997, the truck was proceeding west along the highway. The driver, Mr Coughlan, and the other worker, Mr Kaleti, were in the cabin when Eversham fell from the rear platform. Neither saw the fall, and Eversham had no memory of the accident ([2]–[3]).
The circumstances were pieced together after the event. According to the police report recounted by the trial judge, the truck stopped at a bin, Eversham emptied it and called for the driver to continue. At the next collection point, the crew realised he was missing. He was found unconscious on the road about 200 metres behind the truck. A freshly broken branch was found in the gutter 17 metres east of him ([4]).
The trial judge inferred that Eversham probably fell because a tree branch struck him, because the truck's platform provided an unsafe foothold, or through a combination of circumstances. The judge also inferred that a movement or jerk could have caused him to fall and that the truck was probably travelling faster than 20 kilometres per hour. The Court of Appeal accepted that there was insufficient material for the last of those inferences, but held it was not critical to the liability finding ([5], [12]).
The appeal was dismissed with costs. Young CJ in Eq gave the substantive reasons. Ipp JA and Davies AJA agreed ([25]–[28]).
The Court began with the evidentiary problem: the accident had no eyewitness, so the trial judge had to reason from surrounding circumstances. It stated that a tribunal of fact may draw inferences from even “slim circumstantial facts”, so long as the inference goes beyond speculation ([7]). The Court referred to Incorporated Nominal Defendant v Knowles [1987] VR 138 as an example of a verdict upheld on inferences drawn from the presence of a piece of timber on a highway ([7]). The judgment uses that authority to illustrate the circumstantial-evidence principle; it does not set out a broader analysis of Knowles.
The Court considered several strands of evidence. First, there was evidence of the platform's condition. Senior Constable Miller said that during his first inspection it was loose and moved up and down and sideways. At the depot the following day, he described the steps as lower, with fresh welding and grinding, and as sturdy and rigid ([14]–[16]). The appellant contested whether this was the same platform and argued that the evidence did not establish a repair or concealment. The judgment records that platforms could be removed when truck contents were tipped, and that the same platform might or might not be put back on the same truck ([17]–[18]).
The Court nevertheless held that the trial judge was entitled to use the platform evidence. It took account of the officer's apparent understanding that he was inspecting the same platform, the fact that no one corrected that understanding, the failure to call the depot manager who could have clarified matters, and evidence that the company's representatives were reluctant to assist police ([19]–[22]). The Court did not treat any one of these matters as conclusive in isolation. Its reasoning was that the trial judge could assess their combined evidentiary effect and draw the inferences he did ([22]).
Second, the Court considered the evidence about the roadside environment. Trees were close to the left side of the road, the truck was travelling near the gutter, and a freshly broken branch was found near where Eversham lay ([23]). The appellant argued that a branch striking Eversham would probably have been found closer to him. The Court accepted that this was a fair comment but considered the exact resting place of the branch to be of little significance. It regarded the branch's presence as strongly suggestive of a connection with the accident and that it had been removed from a tree by the truck ([23]–[24]).
Third, the Court addressed the claimed speed of the truck. The driver's statement put his speed at about 10 kilometres per hour, while Kaleti said the truck was not travelling above 20 kilometres per hour. Eversham had given evidence about speeds he had experienced on other occasions, but the Court considered that evidence insufficient to infer the truck's speed on this occasion ([10]–[12]). It expressly separated that unsupported inference from the rest of the case: excessive speed was not necessary to sustain the trial judge's decision ([12], [25]).
The core reasoning was therefore cumulative. The Court did not require direct proof of the precise mechanics of the fall. It held that the platform evidence and the circumstances involving the trees and branch gave the trial judge enough material to infer negligence without relying on excessive speed ([22]–[25]).
This judgment does not announce a new statutory test or a comprehensive framework for circumstantial evidence. Its stated evidentiary principle is that a fact-finder may draw inferences from circumstantial facts, even if the evidence is slim, provided the inference goes beyond speculation ([7]). The decision applies that principle to an accident where neither the injured worker nor any other witness could describe the fall.
The judgment's discussion of Incorporated Nominal Defendant v Knowles [1987] VR 138 is limited. Young CJ in Eq described it as an example in which a verdict was upheld on inferences drawn basically from a piece of timber on a highway ([7]). The judgment does not provide the facts or reasoning of Knowles in detail, and its mention should not be expanded into propositions not stated in this decision.
The practical contribution of Progressive Recycling is its application of the inference principle to multiple, imperfect evidentiary strands. The Court considered evidence about the platform's condition, the events after the accident, the nearby trees, the broken branch and the truck's position together. It also demonstrated that one unsupported inference need not invalidate a finding where other evidence is sufficient. Here, the speed inference was rejected, but the remaining evidence was held sufficient for the negligence finding ([12], [22]–[25]).
The judgment does not describe a formal “before and after” change in doctrine. On the material available, the cautious account is that the Court applied an existing circumstantial-evidence approach, illustrated by Knowles, to the facts before it. It does not hold that every accident with a nearby broken branch or a disputed vehicle platform will support a negligence finding. The result turned on the full evidentiary picture and the trial judge's assessment of it.
At [7], Young CJ in Eq said a tribunal of fact may draw inferences from “even slim circumstantial facts” if the inference “goes beyond speculation.” In plain English, a case does not fail merely because no one saw the event happen. A judge may use surrounding facts to decide what probably occurred, but cannot substitute guesswork for evidence.
At [12], the Court said there was “insufficient material” to infer that the truck was travelling faster than 20 kilometres per hour, but that this was “not critical” to the finding. In plain English, the trial judge was not entitled to rely on that particular speed conclusion, but the appeal could still fail if other evidence supported negligence.
At [22], the Court held that the judge “was entitled to use the evidentiary material about the steps and to form the inferences that he did.” In plain English, the Court accepted that the platform inspection evidence, considered with the surrounding circumstances, could be used in the factual assessment. This does not mean that the judgment established that the platform had certainly been altered to hide a defect. The Court addressed the dispute about whether the same platform had been inspected and decided that the judge could draw the relevant inferences on the evidence presented ([17]–[22]).
At [23], the Court accepted the appellant's point that the branch might have been expected to be found closer to Eversham, but said the precise place where it came to rest was of little significance. In plain English, the location argument did not outweigh the significance the Court attributed to the branch's presence in the broader circumstances.
At [24]–[25], the Court treated the branch as strongly suggestive of a connection with the accident and concluded that there was sufficient material for the negligence inferences, apart from excessive speed. These passages show the Court's focus on the combined circumstantial evidence rather than proof of one exact sequence of events.
The decision is relevant to reasoning about accidents where the event itself was not directly observed, but surrounding physical or documentary evidence may support a factual inference. In this case, neither the worker nor the other crew members could explain the fall from direct observation. The issue was whether the remaining evidence was enough to support the trial judge's conclusion ([3], [6]).
The particular features the Court relied on included an allegedly unsafe or loose work platform, a discrepancy in its reported condition between inspections, an evidentiary gap about whether the same platform was inspected, the absence of testimony from a person who could have clarified that issue, trees beside the route, the truck's position near the gutter, and a freshly broken branch nearby ([14]–[24]). The case therefore provides an example of a fact-finder assessing a set of interrelated circumstances rather than relying on one isolated fact.
It may also be relevant where an appeal challenges a trial judge's factual inferences and one inference is said to be unsupported. The decision illustrates that an unsupported inference may be severable from other findings: the speed inference was rejected, but the remaining evidence was held sufficient in this case ([12], [25]).
The judgment should not be read as establishing that the same factors necessarily produce the same result in other cases. It does not give a checklist, a presumption that a nearby branch caused an accident, or a rule that a later change in equipment proves an earlier defect. The Court's reasoning was specific to the evidence before it and its conclusion that the cumulative circumstances went beyond speculation ([7], [22]–[25]).
The supplied judgment contains no discussion of subsequent decisions and does not identify any later court treatment of Progressive Recycling Pty Ltd v Eversham. Accordingly, this judgment alone does not establish whether later courts have followed, distinguished, limited or otherwise treated it.
The only earlier authority identified in the judgment is Incorporated Nominal Defendant v Knowles [1987] VR 138. Young CJ in Eq cited it at [7] as an illustration of a verdict based on circumstantial inferences. The decision itself was from 2003, and the supplied text does not provide a later-cases history. Any account of subsequent treatment would require sources beyond this judgment, which are not available here.
For research purposes, the point established by this text is narrow: the Court of Appeal relied on the proposition that circumstantial evidence can support an inference if the inference goes beyond speculation, and it applied that proposition to the evidence in this appeal ([7], [22]–[25]). No claim about later precedential weight or treatment can be grounded in the supplied decision.
The judgment leaves several factual matters unresolved in its reasons. The Court said the photographs showed foliage close to the highway but did not establish the condition of the trees on the accident date or whether loose or projecting branches existed at truck level. The police officer had not observed damage to the truck when he attended the scene ([9]). The Court later treated the branch as strongly suggestive of a connection with the accident, but the text does not provide a direct observation of the branch striking Eversham ([23]–[24]).
There was also uncertainty about the platform. The evidence suggested platforms could be removed to allow the contents of a truck to be tipped, and it was not established whether the same platform was returned to the same truck ([17]–[18]). The Court held that the trial judge could nevertheless use the evidence, having regard to the officer's understanding, the lack of correction, the uncalled depot manager and the reported reluctance to cooperate ([19]–[22]). The judgment does not resolve, as a general evidentiary rule, how such circumstances should be assessed in other cases.
The precise mechanism of the fall also remained unknown. The Court upheld the liability finding without choosing between every possible explanation for the accident. In particular, it did not need to determine that excessive speed caused the fall, because it found the speed inference unsupported and unnecessary to the result ([12], [25]).
Finally, this decision does not specify the later treatment of its reasoning or define a threshold for when circumstantial evidence becomes speculation. It states the general principle at [7] and illustrates its application through the facts before it. Those boundaries would need to be assessed from additional authorities and the evidence in any later case.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
CITATION : Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 HEARING DATE(S) : 12 September 2003 JUDGMENT DATE : 12 September 2003
JUDGMENT OF : Ipp JA at 26, 28; Young CJ in Eq at 1-25; Davies AJA at 27 DECISION : Appeal dismissed with costs.
CATCHWORDS : The respondent worked as a runner on a recycling truck. Whilst working an accident occurred and the respondent was found on the highway unconscious. Although no one saw exactly what happened, and the respondent could not remember what happened, the trial judge inferred that a tree branch was likely to have knocked the respondent off the truck, which was travelling too fast. EVIDENCE- No direct evidence- Whether sufficient evidentiary basis for inferences drawn- Grounds on which tribunal of fact entitled to draw inference. CASES CITED : Incorporated Nominal Defendant v Knowles [1987] VR 138 PARTIES : Progressive Recycling Pty Limited (Appellant) Craig Eversham (Respondent) FILE NUMBER(S) : CA 40015/03 COUNSEL : J D Hislop QC and D Ronzani (Appellant) P Hennessy SC and P Frame (Respondent) SOLICITORS : Blake Dawson Waldron (Appellant) W D Hunt & Associates (Respondent)
LOWER COURT District Court JURISDICTION : LOWER COURT 9026/01 FILE NUMBER(S) : LOWER COURT Certoma ADCJ JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40015/03
IPP JA YOUNG CJ in EQ DAVIES AJA
Friday 12 September 2003
PROGRESSIVE RECYCLING PTY LTD v CRAIG EVERSHAM
Judgment
1 YOUNG CJ in EQ: This is an appeal from Certoma ADCJ who gave a verdict for the plaintiff/respondent for $958,341.96 for damages for personal injuries.
2 Shortly before receiving the injury the respondent was one of a team of three working on a recycling truck similar to a garbage truck picking up waste from bins along the Great Western Highway at St Marys. At the relevant time the truck was proceeding west along that highway. The accident happened on 10 April 1997.
3 Apart from the respondent there was on board the truck the driver Mr Coughlan and another observer Mr Kaleti both of whom when the accident happened were in the cabin and did not observe how the plaintiff, as he undoubtedly did, came off the platform at the rear of the truck, fell on to the road and was rendered unconscious. The plaintiff himself has no recollection of the accident.
4 The learned judge said relying on the police report compiled by Senior Constable James Miller that,
"The driver stopped at a recycling bin along the highway, the plaintiff got off the truck, emptied the bin into the truck and on hearing, the plaintiff call out, Go' (a runner on the rear platform being out of the driver's vision) the driver continued on. When the driver reached the next bin along the highway the driver stopped and waited a while, and on not hearing the plaintiff call out, Go', Kaleti got off the truck to investigate and the plaintiff was not there. The plaintiff was found about 200m behind the truck along the highway unconscious on the roadway.
"Senior Constable Miller observed that there were a number of trees along the side of the road (as was also evident from the photographic evidence) and 17m east of the plaintiff there was a tree branch in the gutter that appeared to be freshly broken from a tree next to the roadway."
5 His Honour had relatively little material to work on because no one had witnessed the accident and he needed to make inferences from the surrounding circumstances. He said:
"It can be inferred from the facts that the plaintiff probably fell from the platform at the rear of the truck for either or both of two reasons: firstly, that the truck which was travelling close to the gutter without keeping any or a proper lookout, collided with a roadside tree whose branch which was found close to the plaintiff, struck the plaintiff causing him to fall to the ground; and, secondly, that the platform at the rear of the vehicle was not maintained in a safe and proper manner, the diminished foothold causing the plaintiff to fall. Although unnecessary to the second conclusion given the defective condition of the platform, it can, moreover be inferred that, as a result of the diminished foothold, a slight movement or jerk in the truck's progress would have caused the plaintiff to fall. Though the driver in his statement to the police claimed to be driving at 10 kph, and Kaleti in his statement said that the driver was not doing more than 20 kph (the speed that the driver stated he was not permitted to exceed under Workcover requirements) the plaintiff gave evidence of his experience that the drivers (in similar road conditions as on the day of the accident) often travelled at 40 to 50 kph. In the present case where the truck was travelling along the highway and (according to the evidence of Miller and the police reports) had travelled about 370m from the previous pick-up point, it is probable that the truck was travelling in accordance with the plaintiff's past experience at a speed in excess of 20 kph. This was a dangerous speed especially where there was an unsafe foothold because of the faulty platform."
6 On this appeal Mr J D Hislop QC and Mr D Ronzani appeared for the appellant and Mr P Hennessy SC and Mr P Frame appeared for the respondent. The basic question on this appeal which is only on the question of liability is whether there was sufficient evidentiary basis for the inferences which his Honour drew.
7 It should be noted that authority is clear that particularly in a case where there is no direct evidence a tribunal of fact is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation. A prime example is Incorporated Nominal Defendant v Knowles [1987] VR 138 where the Victorian Full Court upheld a verdict based basically on inferences drawn merely from the presence of a piece of timber on the Princes Highway near Traralgon.
8 The photograph of the platform of the truck on which the respondent had been standing which occurs at various places in the appeal papers particularly Black p 97 shows that it leans slightly backward, that is, towards the road at the back of the truck and that although there are two platforms the one with which we are concerned is that which is on the left hand side of the truck. The photograph shows a larger man than the plaintiff (the plaintiff was described as a short, jockey-type man) holding onto the truck with his hand partially along the rear left hand side of the truck. Even taking account of the difference in stature between the man in the photograph and the plaintiff it can easily be seen that one only has to lean slightly to the left to project past the left hand side of the vehicle.
9 The appeal papers contain photographs of the trees along the relevant stretch of road taken two months after the accident. They show foliage right up to the near side of the highway, but projecting over the highway only above the height of the truck. We do not know just what was the state of these trees as at the date of the accident, whether there were any loose or projecting branches at truck level or otherwise. However, Senior Constable Miller did not observe any damage to the truck when he attended the scene of the accident.
10 So far as the speed of the truck is concerned Mr Hislop said in his written submissions that:
"The only evidence as to speed was that of the driver Mr Coughlan who said that he was driving along the lane closest to the gutter at about ten kph and the other runner Mr Kaleti who said Mr Coughlan did not drive over twenty kph and that the truck was proceeding slowly to the next pick up."
11 Mr Hislop then noted that although there has been some criticism of the fact that these two witnesses were not called their evidence by statement was actually adduced by the respondent as part of his case. Mr Hislop says that his Honour was not entitled on that evidence to conclude that just because the respondent's previous experience of the truck at the relevant time was travelling at a speed in excess of twenty kilometres per hour when it was going along a highway that it did so on this particular occasion.
12 It seems to me that there was indeed insufficient material from which his Honour could have inferred that the truck was travelling in excess of twenty kilometres per hour. However, this is not critical to his Honour's finding and there are other circumstances which to my mind justify the general inferences that his Honour drew. The basic point is of course whether the driver kept a proper lookout for obstructions such as projecting parts of a tree which might affect the runner whom he knew was holding onto the rear of the truck as it traversed the highway.
13 Mr Kaleti in his statement said that on that day Mr Coughlan was driving and the respondent and he himself were collecting recyclable material from the kerbsides. At the relevant time the witness was in the cabin and the respondent was riding on the rear of the truck:
"We had just about finished the run and we thought we would only have a couple of more stops to make and we turned into the Great Western Highway from Marsden Street and we stopped for a pick up about 30 metres along from Marsden Street. Craig [the respondent] hopped off the back and threw the glass into the truck and hopped back on again and we proceeded slowly to the next pick up. There are a lot of trees along the roadway there and at one point I heard a bang which I thought was probably a branch hitting the truck. When we reached the next pick up between Fleming and Monfarville Street David stopped the truck and we waited for Craig to get off and pick up the collection. We waited a little while but did not see Craig so I got out and went to the back of the truck. As I recall the top part of one of the back doors was open and latched to the side of the truck while the other door on the bottom of the passenger side rear door was closed."
14 As I said, Senior Constable Miller called at the scene of the accident and made inspections of the vehicle. He called at the appellant's depot the next day. He there saw Mr Vitticker who was the son-in-law of Mr and Mrs Gregory who appear to be the proprietors of the shares in the appellant company. Mr Vitticker was not called to give evidence. Senior Constable Miller said that when he inspected the truck at the depot the next day he noticed that the state of the platform was significantly different to that which he had observed the previous day, the previous day it was loose, now it was tight. He also found that the people he spoke to at the depot were reluctant to help the police with their inquiries. His Honour said:
"The evidence of Constable Miller was that the subject platform was loose and moved up and down, and sideways, and sloped downward away from the truck. He stated the next day, when he attended the defendant's yard to inspect the truck, not only was the defendant reluctant to show him the truck but he observed that the subject platform was freshly welded and was sturdy and rigid. Although the police officer was not an expert on the design of such platforms, the fact remains that the platform was repaired by the next day and there was no evidence from the defendant's plant supervisor, who was Mr Gregory's stepson and who had accompanied the police officer at the time of the latter's inspection of the truck."
15 The evidence of Senior Constable Miller appears at Black pp 132 and following. I will not go over the matters that I have already mentioned from his Honour's judgment but it is necessary to dwell for a moment on what the officer said at pp 136-137. He was asked in chief:
"Q. And you say you noticed the steps had been changed? A. Yes, I noticed that the steps had been changed. They were - the steps were lower, they had been rusty but they were now silver on the bottom. They were also - I noticed some fresh welding on them and some grinding and I shook them and they were now sturdy and rigid and solid."
16 The senior constable then related a conversation he had with Mr Vitticker and he was asked after that:
"Q. ... now was it abundantly clear to you that in fact the steps had been changed? A. Yes."
17 Mr Hislop says that the judge's view with respect to this evidence was in error. He particularly challenges his Honour's statement that the subject platform was freshly welded when the officer inspected it on the day after the accident. It would seem that the appellant had sixty-seven trucks in its fleet. It would also seem that when one had to remove the material for recycling from the truck one had to remove the platforms so that the contents could be tipped out from the truck. The evidence suggested that it may be the same platform would go back onto the same truck or may be not. However, as the trucks would doubtless visit the tip at different times the odds of this happening were not explored. Furthermore, the evidence from Mr Basil Gregory showed that the practice was routinely to repair damaged platforms though he did retreat a little from this statement in cross-examination.
18 Mr Hislop indicated that it may well have been and a fair reading of the evidence on pp 136-137 was that when the officer saw the platform the next day it was in fact a different platform and there was no inference that could be drawn that there had been some clandestine repair to make everything appear in perfect order when the officer inspected it.
19 However, the police officer seems to me to have conducted himself on the basis that on the day following the accident the platform he was looking at was the same that he had seen the previous day.
20 Certainly no one pointed out to the officer that there had been any change of steps and as I said the depot manager, Mr Vitticker, who could have made any misunderstanding perfectly clear was not called by the appellant at the trial.
21 Furthermore, there is the police officer's evidence of the great reluctance of the appellant's people to cooperate with the police in this regard which would be very strange if there was a perfectly logical and innocent explanation as to why the officer was seeing something that was different to what he had seen the day before and which it must have been obvious at the trial was being given great significance.
22 Accordingly, in my view the judge was entitled to use the evidentiary material about the steps and to form the inferences that he did.
23 However, in addition to the repairs to the steps we have the clear fact that there were trees close to the left hand side of the road, the truck was driving close to the gutter and there was a freshly broken off branch of a tree found seventeen metres east of where the respondent lay on the road. Mr Hislop said that if the respondent was struck by a branch one would have expected the branch to be found much closer to where the respondent lay. This is a fair comment, but life often produces unexpected results like this and whilst it is very significant that the branch was there it is to my mind of little significance exactly where it came to rest.
24 In my view the presence of the branch is strongly suggestive that it had to do with the accident, that the branch had been removed from the tree by the truck.
25 We have then in addition to the evidence of the platform that shortly afterwards or at about the same time as the branch was detached from its tree, the respondent left the truck and ended up unconscious on the road and in my view there was sufficient material there for the learned trial judge to draw the inferences of negligence which he did draw apart from the inference of excessive speed. Accordingly, in my view the appeal should be dismissed with costs.
26 IPP JA: I agree.
27 DAVIES AJA: I agree.
28 IPP JA: The order of the Court will be that the appeal is dismissed with costs.
Last Modified: 09/19/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Progressive Recycling Pty Ltd
Eversham
Appeal dismissed with costs. The District Court judgment for the respondent remained undisturbed.