Gannon v Gannon [1971] HCA 76; (1971) 125 CLR 629 (17 December 1971)

HIGH COURT OF AUSTRALIA

GANNON v. GANNON [1971] HCA 76; (1971) 125 CLR 629

Practice

High Court of Australia
Barwick C.J.(1), McTiernan(2), Menzies(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Practice - Discovery - Interrogatories - Insurer defendant by election - Answers to interrogatories sworn by defendant before action taken over - Evidence - Admissions - Whether defendant by election bound by defendant's answers - Whether inconsistent evidence can be adduced - The Workers' Compensation Acts, 1916 to 1965 (Q.), s. 9A.

HEARING

Brisbane, 1971, May 27, 28.
Sydney, 1971, December 17. 17:12:1971
APPEAL from the Supreme Court of Queensland.

DECISION

December 17.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons it has not been shown that the learned trial judge was wrong in not being satisfied "that the defendant departed from his duty to take reasonable care for the safety of the plaintiff as his employee". I agree that the appeal should be dismissed. (at p630)

McTIERNAN J. In my opinion, this appeal should be allowed, the judgment for the defendant set aside, and judgment given for the plaintiff for the amount of damages which the trial judge assessed should be paid to the plaintiff if, on appeal, it was decided that the defendant was liable in negligence for the injuries sustained by the plaintiff. The injury was very serious and the amount of the assessment was $28,108. (at p630)

2. The plaintiff's case was that on 25th October 1965 the defendant employed the plaintiff to drive a tractor, which was used to draw a machine called a forager, on his farm and while this machine was working a piece of wire was thrown out from within the machine and struck the plaintiff's right eye. The eye was destroyed and his brain was damaged. Shortly before the date of the accident the plaintiff, who is a son of the defendant, entered into an agreement with the defendant constituting the relationship of master and servant. The plaintiff had been assisting the defendant to carry on the farm for some years but not as a servant. The forager was bought by the defendant in 1953 and both he and the plaintiff had regularly used the forager by driving the tractor with the forager attached to it. The cause of the accident was that the blades of the machine were not completely enclosed and as a result there was an opening across the front of the forager. The piece of wire was ejected through this opening and ricocheted in the direction of the plaintiff. At the instant the piece of wire was ejected the plaintiff had his head turned towards the forager. There was no suggestion that there was anything wrong in what he did or the way he did it. (at p631)

3. The question at issue is whether, after the relationship of master and servant between the defendant and plaintiff arose, the duty of the defendant to take reasonable care for the safety of the plaintiff extended to installing on the forager a safety device to protect the plaintiff from risk of harm when driving the tractor with the forager attached to it, for the purpose of operating the forager to cut a crop on the defendant's farm. (at p631)

4. The learned judge made a finding about the mowing device which pointed out that it was "protected but not entirely enclosed by a guard". As regards the ejection of the piece of wire, he made this finding: "It seems clear that the object which struck the plaintiff was ejected in some way by the operation of the forager." (at p631)

5. The technical testimony proved that because the mowing device was not fenced the forager was liable in the ordinary course of its operation in a crop to eject pieces of foreign material occurring in the produce being fed into the blades; and that by reason of the fast speed at which the blades were rotating there was a risk that pieces of such material, for example, stones and fragments of wire, would be liable to hit a member of the forager linking it to the tractor with such force that they would ricochet with considerable velocity upwards and forwards in the direction of the driver of the tractor. The technical evidence upholds a theory that the piece of wire that injured the plaintiff took such a course. (at p631)

6. The case for the defence was that the opening through which objects could be ejected was too limited to allow any such object to fly high enough to hit the driver; that in normal use of the machine he would not be exposed to risk of harm; and that the ejection of the object which hit the plaintiff was accounted for by describing it as a "freak" accident. But it is clear that the forager was being put to a normal use and was operating normally when the plaintiff was injured. The accident was no less an incident of the ordinary operation of the machine in a crop of the kind being cut than the ejection of a stone or a piece of wire which flies forward in a trajectory not as high as the seat of the tractor. (at p632)

7. The evidence of the expert witnesses called by the plaintiff and the evidence of the expert witness called by the State Government Insurance Office about the construction and working of the forager did not differ. But the plaintiff's witnesses were both of the opinion the forager was dangerous because the mowing device was not entirely enclosed. The expert witness called by the Insurance Office was of the opinion that the forager was not dangerous, despite the fact that the mowing device was not entirely enclosed, because the opening was such that it limited the flight of objects forced out through the opening to a trajectory lower than the seat of the tractor. But the latter expert admitted that it was possible that an object forced through the opening might ricochet and fly upwards and forwards in any direction and this was a possible cause of the accident. (at p632)

8. The evidence of the plaintiff proves that the defendant knew that some time before the accident the plaintiff had been hit by a stone while driving the tractor with the forager attached to it on the farm. On the technical evidence explaining the present accident it is open to say that the piece of wire hit the plaintiff in the manner of a ricochet. (at p632)

9. The plaintiff's evidence proves that the risk of stones and pieces of foreign material flying out of the forager was likely to occur in the course of its ordinary working on the defendant's farm. The flying out of the machine of a stone or of a piece of foreign material upwards in the direction of the driver of the tractor drawing the forager behind it was an accident which the defendant with his experience of the working of the machine and knowledge of conditions affecting the operation of the forager on his farm might have anticipated. In the case of a prudent farmer with such experience and knowledge the opening across the mowing part of the forager was a reasonably foreseeable cause of danger to a man employed by him to operate the forager on the driver's seat of the tractor, exposed as he was to the danger of the ejection of objects forward from within the forager. (at p632)

10. The Insurance Office having taken over from the defendant the conduct of the defence, pursuant to s. 9A of The Workers' Compensation Acts, 1916 to 1965 (Q.), he did not appear in person or by counsel. He was not called as a witness. (at p633)

11. As the experts differed on the question whether the forager was dangerous while working to the driver of the tractor, the learned judge said that issue was not an easy matter to decide. In the end he decided the issue of negligence against the plaintiff on the evidence of four witnesses called by the Insurance Office to whom he referred as "practical farmers". His Honour summarized their evidence as follows:

"Each had made regular use of a forager of the relevant type
for varying periods of time; none regarded it as dangerous;
none had made any modification to it; none had had any
trouble with it; all except one had used it with the flails set
lower than they had been set when the plaintiff was injured.
One had heard small stones rattling as they went up the chute,
and had seen stones flying out in front along the ground; on
one or two occasions another had seen stones projected out
to the side; none had ever been hit by an object ejected from
the machine."

Indeed it is open to say that this evidence proved instances of ricochets. This evidence is not proof of a general or approved practice of employers not to install any safety devices on foragers to protect drivers of the tractors drawing the foragers from objects ejected by the foragers. The farmers were not employers. The question is whether the defendant, as employer, performed the duty of a master at common law to provide a reasonably safe appliance for the plaintiff's use on the defendant's farm. Viscount Simonds said in Davie v. New Merton Board Mills Ltd. (1959) AC 604, at p 620 of such a duty "that the taking of reasonable care may fall little short of absolute obligation". It is said in Salmond on Torts, 15th ed. (1969), at p. 636 that: "Though the duty is not absolute 'a high standard is exacted': Winter v. Cardiff Rural District Council (1950) 1 All ER 819, at p 822 , per Lord Porter." (at p633)

12. In my opinion the evidence of the farmers, if it proves anything about the care they took of themselves in harvesting with a forager, is but of little weight, if any, in determining whether the defendant discharged the duty of care which he owed as employer to the plaintiff. In my opinion it was not relevant to the issue that none of the farmers called as witnesses regarded the machine as dangerous without installing a guard or a shield for protection against objects thrown out of it. In my opinion the test is "objective and impersonal"; further, frequency of accidents was not necessary to prove the machine was dangerous: see Mitchell v. North British Rubber Co. (1945) SC (J) 69, at pp 73-74 , per Lord Cooper L.J.-C. This decision was approved in John Summers & Sons Ltd. v. Frost (1955) AC 740 . A passage entitled "Unlikely hazards" in Salmond on Torts, 15th ed. (1969), at pp. 290-291 reads:

"On the other hand, it is not necessary that the chances that
damage will result should be greater than the chances that no
damage will occur. So the fire in The Wagon Mound (No. 2)
[1966] UKPC 1; (1967) 1 AC 617
was 'extremely unlikely' but yet a real danger which
should have been reasonably foreseeable. An occurrence may
be unusual in the sense of infrequent and yet not unlikely.
Or a danger may be likely to arise and yet an accident unlikely
to happen. So the fact that the injury which has occurred
is unique in character, or has happened previously on a minimal
number of occasions, or to a very few people, does not necessarily
prove that the defendant is under no duty to take precautions
against it."

Compare the observations of du Parcq J. (as he then was) in Walker v. Bletchley Flettons Ltd. (1937) 1 All ER 170, at p 177 . (at p634)

13. In my opinion the plaintiff made out his case and the evidence produced by the Insurance Office did not answer it. (at p634)

MENZIES J. The appellant sued his father, the respondent, for damages for negligence as an employer, in that he failed to take reasonable precautions to protect the plaintiff, who was working for him as a tractor driver, from risk of eye injury from flying articles thrown up by a forage harvester which the tractor, driven by the plaintiff, was both pulling and operating in harvesting a crop of oats and lucerne. (at p634)

2. The flails of the forage harvester rotated in the direction of its forward movement at 1500-2000 revolutions per minute, producing a speed at the tip of a flail of about 120 miles per hour. There is a ground clearance which does in places permit the ejection at high velocity of stones and other matter at a trajectory of up to 16 degrees from the horizontal. (at p634)

3. The plaintiff, while driving the tractor with the flails set to operate at 6 inches above the ground, was looking back over his shoulder to check the operation of the plant when he received a blow in the eye from what has since been ascertained was a small piece of wire which passed through his eye and remains embedded in his head. The eye has been surgically removed and the appellant suffers from epilepsy. (at p634)

4. The piece of wire could not have travelled directly from the flail to the appellant's head; the trajectory was too low for that. It must, in some way, such as contact with some part of the plant, have been deflected upwards in the course of its flight from the flail to the eye. (at p635)

5. The equipment, which was of Massey-Ferguson manufacture, was used as supplied without the addition of any safety device to protect the driver. The plaintiff did not wear goggles. (at p635)

6. The negligence alleged was as follows:

"(a) failing to provide safety goggles for use by the plaintiff
when working as aforesaid;
(b) failing to install a guard or shield on the tractor or on
the forage harvester so as to protect the plaintiff from
objects thrown up by the said flails;
(c) failing to provide the plaintiff with safe and efficient
plant and equipment for the said work;
(d) failing to take any or any adequate precautions to make
the plaintiff's said work safe." (at p635)

7. The defendant admitted that, while the plaintiff was driving the tractor pulling the forage harvester, "his right eye was injured by a piece of wire". The State Government Insurance Office, Queensland, exercising the power conferred upon it as the insurer of the defendant under The Workers' Compensation Acts, 1916 to 1965 by s. 9A of that Act elected "to be joined with the employer" in the action with the result that the office became "entitled to the conduct on behalf of the employer of all proceedings had or taken to enforce the claim". (at p635)

8. In deciding for the defendant the learned trial judge said:

"The onus is on the plaintiff, and the evidence does not
satisfy me that the risks associated with the operation of the
machine were such as to make it unreasonable for the defendant
not to provide the goggles, or the guard or shield, mentioned
in the statement of claim. I am reluctant to have to reach
this decision, because one cannot fail to have great sympathy
with the plaintiff. However, I am not satisfied that the
defendant departed from his duty to take reasonable care for
the safety of the plaintiff as his employee.
There will therefore be judgment for the defendant, but in
case another court should take a different view, I go on to the
assessment of damages." (at p635)

9. His Honour then assessed damages at $28,108, including agreed special damages of $1,108. (at p635)

10. It is against the judgment for the defendant that the appellant now appeals. (at p635)

11. The plaintiff himself gave evidence, and two expert witnesses were called on his behalf who gave evidence of the risks associated with the operation of the forage harvester. They also described various additions to it, which could, as they thought, be made and which would, if made, reduce the risk of harm to the tractor driver from matter thrown out by the flails. Their evidence was to the effect that the plant, as the plaintiff operated it, was dangerous to him but that the dangers could have easily been mitigated. In addition, the plaintiff put in answers to interrogatories sworn by the defendant father and delivered to the plaintiff by the solicitors acting for the State Government Insurance Office. The interrogatories had been delivered before that office made the election referred to earlier. The answers to interrogatories were as follows:

"1. In answer to the first interrogatory I say that prior
to 25th October 1965 I had been in possession of the forage
harvester referred to in the pleadings for about two years and
three months.
2. In answer to the second interrogatory I say that I had
operated the said forage harvester prior to 25th October 1965.
3. In answer to the third interrogatory I say that I had
noticed, prior to the plaintiff being injured on the occasion
referred to in the pleadings, an object or objects being thrown
up from the said forage harvester in the general direction of
its operator when it was being used.
4. In answer to the fourth interrogatory I say that during
the periods when I was in possession of the said forage harvester
I often noticed objects being thrown up from the said forage
harvester in the general direction of its operator when it was
being used prior to the plaintiff being injured on the occasion
referred to in the pleadings.
5. In answer to the fifth interrogatory I say that I was
made aware that on some occasions such objects struck the
operator.
6. In answer to the sixth interrogatory I say that I had
often noticed during the period when I was in possession of
the said forage harvester that objects thrown up from the said
forage harvester, mainly stones, struck the operator.
7. In answer to the seventh interrogatory I say that I
gave the plaintiff no warning prior to him being injured on
the occasion referred to in the pleadings in order to safeguard
him against the risk of being struck by an object or objects
thrown up from the said forage harvestor when he was operating
it and I further say that I refrained from doing so as he had
used the machine previously and I thought he would have
been aware that objects were thrown up by it.
8. In answer to the eighth interrogatory I say that the
plaintiff was employed by me on 25th October 1965.
9. In answer to the ninth interrogatory I say that the
plaintiff was employed by me and working in the course of
his employment when he was injured on the occasion referred
to in the pleadings." (at p636)

12. The defendant called an expert witness who gave evidence that the operation of the forage harvester was not dangerous and who questioned the feasibility of the safety devices suggested by the plaintiff's experts. It also called four farmers who had extensively used the same kind of forage harvester and had not found it to be dangerous. One said:

"Have you ever been struck by any object? - No.
What about a piece of stick, or something like that? - No.
Have you ever encountered loose wire in the field? - Yes.
What happens to that? - Wrapped around the hoes, and that.
Have you put a guard on that machine? - No.
Why not? - We never had the experience of any trouble, so
we never bothered.
Have you been under any danger from the machine itself? -
Well, apart from stones flying out in the front along the
ground, that is the only thing, like.
How many have you found go along the ground? - You
might see a couple every time you forage harvest it. You can
see them go along the ground ahead of you.
Have any of these ever come up near you? - No."

Another said:

"Have you ever been struck by an object thrown up by the
forage harvester? - No.
I do not necessarily mean a big object - any object at all? -
I haven't been hit by anything from the forager."

The third said:

"Have you ever been hit by an object from the -?
- No, never.
Have you ever seen stones being projected along the ground
or anywhere else? - I think on two or three occasions since we
have had it I have seen a stone projected out to the side;
that's about all.
If you saw it, I take it it must have gone forward as well?
- Yes.
Have you ever been the slightest bit concerned about this
harvester? - No.
Just taking the effect of what you say, it does seem you
have used it something between 1,000 and 2,000 times? -
That would be right."

The other witness said:

"And at any time have you experienced trouble by being hit
by objects being thrown at you by the machine? - No.
Do you set it high or low? - We have it at different heights.
The height we use it mostly would be three or four inches -
have had it up to six.
Have you made any modifications to the machine? - No.
When you say you use it eight months of the year, how many
times a week would you be using it? - Twice a day seven days
a week.
This is over a period of four years? - Yes.
Have you seen these forager harvesters around in other
places of this type? - Yes, not a lot but I have seen them.
Have you ever seen one with a guard on it on the front? - No.
Have you ever heard of a guard on one? - No." (at p638)

13. The cross-examination of the foregoing witnesses was directed to show, and did show, that the farms upon which they worked their forage harvesters were not the same as the defendant's farm. The farm of the defendant was, I think it is correct to say, steeper, rougher and more stony than the farm of any of the witnesses. (at p638)

14. The learned trial judge was greatly impressed by the evidence of the farmers. (at p638)

15. The plaintiff himself gave evidence to the effect that, while operating the forage harvester, he had been hit by a stone thrown up by it on only one occasions, and the was in the leg. He did, however, give evidence as follows:

"Had you, in using the machine prior to this, seen or felt
objects thrown up by the forager? - I have seen and felt them.
Tell his Honour about it? - Once I have seen an object
thrown past me that fast I would say - on a clear pitch -
this would easily go 100 yards before it pulled up. The lesser
ones that I had been hit with hit the back of the leg. I didn't
know what it was, I didn't see it, and it didn't break the
skin but it left a white blemish mark, if you can follow that;
and I have been hit around the waist and a bit higher with
bits of heavy wood or come across a bit of depression in the
ground and the wheels and flails hit it and tip up clods of
root and this sort of thing and they are thrown or ricocheted
through, but I would say the one I was struck with was the
one on the back of the leg - it certainly didn't draw blood
but it hit fair and square on but if it had been a glancing blow
it might have been a different story.
What was it that hit you? - Here again I think it was a
stone. I'm pretty certain it would have been a stone. Had
it been a metal object, it would nearly have cut the mark
it made." (at p638)

16. His Honour said of the plaintiff's evidence:

"...in general I found him a truthful and convincing
witness. I think, however, that he has exaggerated somewhat
in his account of the number of times he was struck by objects
ejected by the machine." (at p638)

17. His Honour was, however, critical of the defendant's admissions in the answers to interrogatories. As to this he said:

"There is thus a very wide conflict of evidence between
the witnesses who have actually used the machine. The
answers to interrogatories of the defendant give the most
extreme account. No doubt the interrogatories were skilfully
drwn so as to achieve this result, but the impression which
the answers convey, of the operator being under a continual
and dangerous bombardment, is so much at variance with
the account given by the other witnesses, even that given by
the plaintiff, that they must be scrutinised with extreme care.
I have no reason to think that the farmers called by the
defendant
by election were not independent witnesses, and if their
accounts are correct that contained in the answers is clearly
wrong. Evidence does not, I think, take on a special quality
because it is contained in answers to interrogatories. A person
can lie on oath in an affidavit just as easily as in the
witness-box.
The defendant has no interest in this case adverse to
that of the plaintiff; they are father and son. In the
circumstances
I attach very little importance to the answers. I
strongly suspect that if the parties had in truth been at arms'
length the answers would have been substantially different." (at p639)

18. In dealing with the evidence of the plaintiff's expert witnesses his Honour said:

"What of the plaintiff's experts? As I have said, their
knowledge of the machine is purely theoretical. McDonald
cannot remember ever having seen one working, and Grigg
has never seen one working in a crop. Their criticism,
therefore,
is based purely on the design of the machine, and I do
not think that I should accept their evidence against that of
the practical farmers." (at p639)

19. My study of his Honour's judgment satisfied me that the plaintiff failed principally because his Honour accepted the evidence of the four farmers called by the defendant that, in their experience, the forage harvester, without additional guards, was not in operation a machine dangerous to the driver. Believing this evidence, he did not accept as truthful the answers to interrogatories, and he was not prepared to accept the evidence of the plaintiff's experts that operating the forage harvestor without additional safeguards was foreseeably dangerous to the tractor driver. He regarded the injury which the plaintiff suffered as the consequence of a freak accident. (at p639)

20. The appellant, necessarily I think, sought to dispose of the farmers' evidence, and attempted, in two ways, to do so. In the first place it is contended that the evidence, to the extent to which it was in conflict with the defendant's answers to interrogatories, was inadmissible; secondly, objection was taken to its relevance on the ground that the land upon which the farmers operated their machines was not shown to be like the defendant's farm. I cannot accept either contention. (at p639)

21. Answers to interrogatories are no more than admissions of fact and I have found no sound basis for excluding evidence by a witness called for a party because the evidence to be given would be at variance with answers to interrogatories made by that party which have been put in evidence. It may perhaps happen that a case is so conducted that it would be wrong to admit evidence to impeach answers to interrogatories. This is not such a case and it is not to the point to suggest that, in some cases, the Court, in the interests of justice, would not allow evidence to be called to contradict answers to interrogatories. Here, if the evidence of the farmers cannot be relied upon, simply because it is at variance with the defendant's answers, it must be because those answers had taken the matters to which they relate outside the area of conflict at the trial. There are, of course, statutory provisions relating to the extent to which a party may go to discredit his own witness. Such a provision is s. 16 of The Evidence and Discovery Acts, 1867 to 1962 (Q.), but it is not suggested that this section rendered the farmers' evidence inadmissible in this case. Assuming that the farmers' evidence was relevant, I am satisfied that it was not inadmissible to the extent to which it was in conflict with the defendant's answers to interrogatories. That an admission does not, of itself, prevent the bringing of evidence to the contrary is plain enough but it is said (1) that the rule is different as to "formal admissions", and (2) that answers to interrogatories fall into this special category. In support of these submissions counsel for the appellant cited several text books: Phipson on Evidence, 11th ed. (1970), p. 21; Cross on Evidence, Australian ed. (1970), pp. 175-176; and Wigmore on Evidence, 3rd ed. (1940), vol. 4, par. 1058. Reference was also made to a case of Clarke v. Clarke (1899) WN 130 . For my part I am not prepared to put an admission in an answer to interrogatories on the same footing as an admission in a pleading. A pleading may be amended, but an answer to an interrogatory, once delivered, cannot be withdrawn, although, in a proper case, it may perhaps be possible to obtain leave to answer further. Furthermore, however, and more fundamentally, pleadings determine what is in issue; answers to interrogatories do not. An answer could not do so at the time of its delivery and, in my opinion, it does not do so when it is put in evidence. It is no more than evidence of a fact in issue; that is why it is admitted. I see no reason why it should be regarded as exclusive and exhaustive evidence of that fact. It would, I think, be contrary to principle to permit the plaintiff to call witnesses to prove that the plant was dangerous and deny the defendant the right to call evidence that the plant was not dangerous on the ground that the defendant had, in answers to interrogatories, made admissions supporting the contention that the plant was dangerous. (at p640)

22. Moreover, with respect, I do not share the view taken by Lucas J. about the answers to interrogatories. He described them as creating the impression "of the operator being under a continual and dangerous bombardment". They do not create that impression in my mind. I do not think that the sixth answer is at variance with the plaintiff's own evidence but that, of itself, hardly justifies the criticism of the learned trial judge. In short, I would take the same view as was, no doubt, taken by the plaintiff's counsel, viz. that the answers, although helpful, could not, of themselves, make the plaintiff's case. They did not put outside the issues to be tried upon relevant evidence the central issue in the case, i.e. whether the operation of the forage harvester was dangerous to the operator in the sense that it should have been foreseen that he was at risk of suffering the kind of injury that the plaintiff in fact suffered. (at p641)

23. Nor do I accept the other ground for the exclusion of the evidence of the farmers. One issue at the trial was whether the machine was a dangerous machine which could have reasonably been expected to put the operator at risk of the kind of injury which happened here. Expert evidence was called by the plaintiff to say that it was such a dangerous machine. What better evidence to the contrary could there be than that of users of the machine saying that they had not found it dangerous and that it did no more than sometimes throw stones along the ground in a forward direction. The weight of their evidence could, no doubt, be affected by saying that the defendant's land was rougher and more stony than the farms of the witnesses but that circumstance did not affect its relevance, and, therefore, its admissibility. The weight of their evidence was peculiarly a matter for the judge who heard their evidence and that of the other witnesses. (at p641)

24. Accordingly, I think this case must be considered as his Honour the learned trial judge considered it, i.e. as one where there was conflicting evidence on the issue whether the machine was relevantly dangerous in its operation. (at p641)

25. Having reached this conclusion I have not been satisfied that the learned trial judge was wrong in the decision which he reached upon conflicting evidence. Whether I think that I would, or would not, have come to the same conclusion, is not the question. The question is whether his Honour's decision was wrong or was based upon some misapprehension. Notwithstanding my reservations about his Honour's criticism of the answers to interrogatories, I am not so satisfied. (at p641)

26. Accordingly, I would dismiss this appeal. (at p642)

WINDEYER J. I agree that this appeal should be dismissed. The facts that are related in the judgment of my brother Menzies, which I have had the advantage of reading, lead I consider inevitably to that conclusion. I do not think that Lucas J., the learned trial judge, took into consideration anything that he ought not to have done. On the evidence that was before him it seems to me that it cannot be said that his decision was wrong. The accident sued upon occurred when the harvester, with its flails operating at six inches above the ground, somehow caught a piece of wire and threw it forward: it apparently hit some part of the undercarriage of the tractor and was deflected upwards: this occurred when the plaintiff's head was momentarily turned and he was looking backwards: the fragment of wire struck and penetrated his eye. He sued his father, as his employer, claiming that he was negligent in allowing him as his servant to use a machine that was inherently dangerous: in that it was likely when in use to throw small stones or clods of earth forward and that stones or other foreign objects thrown forward might glance off some part of the tractor, rebound upwards and strike the driver. It was claimed that the possibility of this required that an employer, exercising proper care for the safety of his workman, would provide him with goggles to protect his eyes or would not require him to use the machine unless it were in some way modified. Whether or not a reasonable man would consider such precautions necessary, so that the failure to take them would amount to negligence, was the question for his Honour the trial judge. It was for him to judge the weight of the evidence. Unless it appeared clearly that his decision was wrong and insupportable on the evidence, it would not be for this Court to interfere. Far from thinking that his Honour could not reasonably have reached the conclusion that he did on what was a matter for him, I think that there was ample evidence to support his conclusion. Indeed I would have been surprised had he taken a different view. Let it be assumed that the machine might sometimes throw stones forward, the risk of anyone on the tractor being hurt thereby seems to have been at most slight. The plaintiff's father, who had had the harvester and seen it in use for over two years before the accident, said in his answers to interrogatories that he was aware that objects thrown up by it on occasions struck the operator. But there was no evidence that anyone using a machine of this type had been hurt. The plaintiff's father was, we may assume, a reasonable man, reasonably solicitous for the welfare of his son: yet he had not thought it necessary to take measures which it is now said that no reasonable man would have neglected to take for the safety of a servant. This is an eloquent fact. The natural inference from it, and from the evidence as a whole, seems to me to be that before this accident no one would have foreseen it or the happening of any other event of a like kind as within the range of possibilities against which it would be reasonable to guard. The risk, if foreseen at all, might well have seemed so slight that it could be brushed aside. I shall not enlarge on this, as if I did I would be only repeating what I wrote last year in Mount Isa Mines Ltd. v. Pusey [1970] HCA 60; (1970) 125 CLR 383, at pp 396-400 , concerning risks called "remote". (at p643)

2. However, it was argued for the appellant that the answers to interrogatories that the defendant the father gave made inadmissible the testimony of witnesses who deposed that they had used machines of the same type without mishap and that they had never experienced their machines throwing up stones. His Honour accepted the evidence of these witnesses; and he used it to discount the answers to interrogatories on which the plaintiff's case mainly rested. The challenge to the admissibility of this evidence and criticisms of the use that his Honour made of it thus became the essential grounds of the argument for the appellant. I turn therefore to the question of law that was raised. (at p643)

3. It was said that admissions of fact made by a party in answer to interrogatories, being formal admissions in the proceedings, cannot be contradicted by him at the trial. As a general proposition, that may be accepted - although it is always open to a court to allow a party to withdraw an admission made in a sworn defence or in answer to an interrogatory if he shews that it was made by mistake: Hollis v. Burton (1892) 3 Ch 226 . As a party cannot himself contradict his own formal admissions, it may be that, generally speaking, he ought not to be allowed to call evidence for the purpose of categorically denying what he has asserted, unless in the circumstances he be given leave to withdraw his assertion. But that is not what happened in this case. The plaintiff sued his father as the defendant. His father was insured with the State Government Insurance Office (Queensland) against liability under The Workers' Compensation Acts, 1916 to 1965 (Q). The plaintiff was indisputably entitled to compensation under that Act. His claim to damages in respect of his injury meant that, pursuant to s. 9A(2) of the Act, the State Government Insurance Office could elect to be joined with the employer. It did so and became, using the current Queensland terminology, a "defendant by election". It was, as such, "entitled to the conduct on behalf of the employer of all proceedings had or taken to enforce the claim" - unless it by writing permitted the employer to conduct such proceedings, which it did not. The original defendant, the father, was thus in effect displaced. He did not appear on the trial of the action. The Insurance Office became the real defendant. It fought the action, nominally on behalf of the father, with a view to shewing that negligence on his part was not established and that therefore damages were not recoverable from the State Accident Insurance Fund. (at p644)

4. Two matters, which affect the admissibility of the answers to interrogatories and their weight if admissible, then arise. First, did the evidence called for the defence contradict the answer the defendant father gave to the interrogatories? If it did not, cadit quaestio. If it did, then was the Insurance Office as defendant by election precluded from relying on it? (at p644)

5. As to the first: one object, and a main object, of interrogatories is of course to obtain admissions of fact. And the answers given in this case were statements of facts relevant to the plaintiff's case. But, even if accepted, they did not fully establish that the defendant the father was negligent. And they were not directly contradicted by the evidence called for the defence. The defendant father said that he had often seen stones thrown up. The other witnesses said that they, using the same kind of machine in other places, had not seen this. There is no absolute contradiction there. The answers to the interrogatories put in evidence were thus merely part of the evidence which the Court had to consider. As Bowen L.J. said in Davey v. The London and South Western Railway Co. (1883) 12 QBD 70, at p 76 :

"If the facts which are admitted are capable of two equally
possible views, which reasonable people may take, and one of
them is more consistent with the case for one party than for
the other, it is the duty of the judge to let the jury decide
between such conflicting views."

If the case is heard by a judge without a jury he must so decide: and he must do so in the light of the whole of the evidence. Evidence does not become inadmissible merely because on one view it may seem to lessen the weight of other evidence for the same party: and this is so although that other evidence was a formal admission except in the case of a straightout contradiction of it. I am therefore unable to accept the proposition that the learned trial judge ought not to have received the evidence of the other users of the same kind of machine as that which the plaintiff was using. He was not to ignore the answers to interrogatories. He had to consider them and give them such weight as he thought fit along with the other evidence in the case. He was not precluded from being sceptical about them or from refusing to draw from them an inference of negligence. I think that, without any scepticism or discounting, they fell short of establishing that. (at p645)

6. There is a still more fundamental objection to the application in this case of the rule that formal admissions cannot be contradicted by the person who makes them. The evidence of the witnesses that it is said contradicted the answers that the plaintiff's father made to the interrogatories was tendered by counsel for the Insurance Office, the defendant by election. It had undertaken the whole conduct of the defence. This was a recognition of the reality of the position. Whatever one thinks of it, the established doctrine of our law alterable only by Parliament is that liability for damages for personal injuries depends upon fault: and it is for the injured person as plaintiff to prove both the defendant's fault and his damage. Insurance is ordinarily against legal liability to third parties. It is a matter of common knowledge that in claims for personal injuries, based upon allegations of negligence, the defendant is often not unwilling that negligence be proved, thereby enabling the plaintiff to recover at the expense of an insurance company. To this end a defendant may be prepared to make admissions, to answer without objection interrogatories not properly allowable, to go quietly at the trial, and otherwise to facilitate the plaintiff's case. This may go so far as dishonest collusion. The provisions of the Queensland Act enabling the Insurance Office to be joined as a defendant and to take over the conduct of the defence are, it would appear, designed to prevent this by ensuring that the issue of the liability of the alleged tortfeasor is fully contested. That object would be frustrated if the Insurance Office is to be held bound by admissions, formal or otherwise, made by the alleged tortfeasor. The Act provides that the Insurance Office is entitled to conduct the proceedings "on behalf of the employer": but this in my opinion does not make it, the defendant by election, in privity with the original defendant in the relevant sense so that it is bound by his admissions. Professor Cross in his work on Evidence has said "it must be frankly recognized that there is no single rational basis for the reception of vicarious admissions as the subject is one in relation to which it is difficult to distinguish rules of substantive law from rules of evidence". The rationale of admitting in evidence a defendant's answers to interrogatories, but refusing to recognize them as binding upon the Insurance Office as defendant by election, lies in the policy of the statute as I see it. I would refer to passages in the judgments in Nominal Defendant v. Hook (1962) 113 CLR 641 dealing with a not dissimilar position in the case of informal admissions. I do not doubt that the defendant by election, in conducting the defence on behalf of an original defendant, could make admissions binding upon both of them: but that does not mean that the original defendant's admissions bind the defendant by election. The latter is by statute the irremovable agent of the former. It is not to be treated as if the positions were reversed, so that the original defendant is its agent to make admissions. (at p646)

7. I would dismiss the appeal. (at p646)

OWEN J. I am in general agreement with the judgment of my brother Menzies. I would therefore dismiss the appeal. (at p646)

ORDER

Appeal dismissed with costs.