Nelson v John Lysaght (Australia) Ltd [1975] HCA 9; (1975) 132 CLR 201 (28 February 1975)

HIGH COURT OF AUSTRALIA

NELSON v. JOHN LYSAGHT (AUSTRALIA) LTD. [1975] HCA 9; (1975) 132 CLR 201

Negligence

High Court of Australia
McTiernan A.C.J.(1), Menzies, Gibbs(2), Stephen(3) and Mason(4) JJ.
(The Right Honourable MR. JUSTICE MENZIES died before the delivery of judgment of this case.)

CATCHWORDS

Negligence - Safe system of work - Installation of new system shortly after accident - No evidence that new system inordinately expensive or otherwise disadvantageous or cross-examination on such matters - Whether open to jury to find old system defective.

HEARING

Sydney, 1974, October 23,24;
Melbourne, 1975, February 28. 28:2:1975
APPEAL from the Supreme Court of New South Wales.

DECISION

1975, February 28.
The following written judgments were delivered:-
McTIERNAN A.C.J. In November 1968, Kerry Allan Nelson, the appellant, met respondent, Mr. Nelson's employer, was operating. (at p202)

2. In June 1971 Mr. Nelson commenced an action in the Supreme Court of New South Wales against the company. He alleged that the injuries he suffered in the accident resulted from negligence for which the company was answerable. The action was tried by Samuels J. and a jury. The plaintiff and a fellow workman gave evidence of facts relied upon to establish the allegation of negligence. The company produced no evidence. Their counsel moved for a verdict and judgment for the defendant. Samuels J., while holding there was substance in the submission that there was no evidence fit to be left to the jury, decided there was evidence which justified leaving the case to the jury. The jury returned a verdict awarding Mr. Nelson $24,000 damages. The company appealed to the Court of Appeal of the Supreme Court of New South Wales. The judges of the Court, Reynolds, Hutley and Bowen JJ.A., who heard the appeal decided, in effect, that there was not any evidence of negligence which justified allowing the case to go to the jury. But they rejected the contention put forward on behalf of the company that the damages found were excessive and unreasonable. In the present appeal by Mr. Nelson this Court is asked to hold that there is evidence to support a finding that the injuries of which the plaintiff complained were caused through negligence for which the company is answerable. The company did not here, by a cross-appeal or otherwise, challenge the jury's assessment of damages. (at p203)

3. The pleadings in the action are a declaration, a plea of not guilty and a replication joining issue upon the plea. The plaintiff, in the declaration, made these averments: First, that at all material times he was employed by the company as a feeder at the mill where the accident happened. It is described as the "4-HI Mill of the Commonwealth Rolling Mills". Secondly, that "as part of his duties the plaintiff was required to walk from time to time upon a ramp which is known as the Coil Entry Ramp being a loading ramp of the Mill upon which steel coils are deposited AND in the course of his duties the plaintiff was required to walk across the tail end of a certain steel coil then upon the said entry ramp which steel coil had been previously oiled". Six allegations of negligence follow the averments. Numerous particulars of negligence are given. (at p203)

4. One of the allegations of negligence on the part of the company is that it required the plaintiff to walk upon the entry ramp and the steel coil on it "when the same were not safe to walk upon by reason of being slippery and oiled". The result of the negligence, which the plaintiff alleges, is pleaded in these words: the plaintiff's foot slipped when he was walking on the steel coil on the ramp in the course of the performance of his duties as a feeder. The evidence which Mr. Nelson gave at the trial shows that in order to get on the ramp he took a step "about eight inches high"; the ramp, at the hoist end was eight inches high and at the other end three feet high. Asked about the surface of the ramp the plaintiff answered as follows: "It is a steel ramp, very smooth and slippery and on this occasion there was a lot of oil because the oil runs out of the cold reduction coils and it runs out as the coils roll down." Asked the question: "Is there anything that can be done to stop that", the plaintiff's answer was "No". It seems from the evidence that the coil in question was a cold reduction coil. There was no evidence that the surface of the length of coil on the entry ramp, on the occasion in question, was "very smooth and slippery". All the oil with which the coil had been covered or soaked before the plaintiff rolled it from stop to stop down the ramp, would not have been retained by it when it was at a standstill. There is no evidence that it was not oily. But there is no evidence that it was hard for the plaintiff to walk, stand or work on the coil without losing his footing or balance. The following passages in the examination-in-chief of the plaintiff describe the facts and circumstances of the accident:

"Q. How did the accident happen? A. After I rolled the coil
from the first stop on to the hoist the tail end was lying on the
ramp and I proceeded to walk across the ramp to get the heavy
end bar. That is the bar we use to pull across with and fix so that
we can straighten the end of the coil out. If this is not done the
coil automatically wraps up again and you have no chance of
feeding it through the pinch rolls. They are the rolls that take
the end of the coil into the mill for reduction.
Q. I think you drew a little sketch just now, did you not?
A. Yes . . .
Q. What does it actually show? A. It shows the coil sitting on
the hoist with the tail lying on the ramp and the heavy end bar in
an upright position . . .
Q. Is this heavy end bar a cylinder? A. A steel cylinder, yes.
Q. Has it got anything on the bottom? A. Yes, a heavy weight.
Q. How wide are these coils generally? A. They can vary in
width. It is an eighteen inch reversing mill, but the coils vary
from 72 inches wide down to 24 inches wide . . .
Q. . . . the whole length of the bar bears across the full width of
the coil? A. Yes . . .
Q. You said you walked across the hoist. (sic) How did you
get on to the hoist? A. It is just a step about eight inches high.
Q. Would it be possible for you to walk round the hoist to the
other side and operate the lever from there? A. It is possible to
walk there, but it is not possible to work that lever from the
other side of the ramp . . .
Q. You are on the ramp and are walking towards the lever.
What happened? A. I grabbed the heavy end bar in my left hand
and proceeded to walk backwards with it, watching the tail of
the coil to see it did not slip off the chain, and as I took one step
I felt myself slip off balance and there was just nothing I could
do to save myself. I hit the end of the coil and cut my hand.
Q. Do you know what part of the coil you struck? A. The end
of the coil on the furthest side from the auxiliary desk about half
way up.
Q. That is the opposite side from where your desk was? A. Yes.
Q. Can you tell us something about the coil itself, about the
edges of it? A. They are of heavy gauge material, they are very
sharp. It is not uncommon for people to get cut down there with
them or cut through your gloves.
Q. Would it be closely rolled up? A. No, it was loose coil.
When it gets on to the ramp it unwinds, it loosens itself up as it
rolls from one stop to the next.
Q. Why do you have to walk holding the lever across the ramp?
A. In order to get it to the other side of the coil so I can clamp it
down.
Q. Where is the clamp? A. On the opposite side nearest the
auxiliary desk.
Q. The side you started from? A. Yes . . .
Q. Would it have been possible for you to have pushed the
lever down and then walked around without going on the ramp?
A. No, because if I push it down by the time I walk around the
other side of the ramp the lever would be back in an upright
position. There is nobody there to clamp it down again.
Q. Had you employed that method before? A. Yes, walking
across it was the common practice.
Q. Had you ever been instructed in any other or different
practice? A. No . . .
Q. What sort of clothing were you wearing at the time? A. I
was wearing work safety shoes, gloves and helmet.
Q. Could you describe the shoes? A. Leather type, steel toe
caps and rubber soles.
Q. Where did you get those? A. From the work's store.
Q. What about the gloves? A. They were supplied by the
foreman on shift . . . "

In cross-examination -

"Q. Is this ramp high above the ground? A. It is approximately
three to four ft high at one end and down the entry end it is
approximately eight to ten inches high.
Q. You mean at the hoist end? A. Yes.
Q. So it runs from about three ft down? A. Yes.
Q. The practice always adopted was for the men in your
position who wanted to lower the metal bar to walk across the

ramp

and lower the bar in the method that you were intending to do
on this day? A. Yes.
Q. That is the way you had always done it? A. Yes.
Q. And that is the way your fellow workmen had done it when
they were doing the same job. Is that correct? A. Yes.
Q. When these coils come on to the ramp you say they exude
oil? A. Yes.
Q. That cannot be avoided, can it? A. If there was not so much
oil applied to the coils this would not happen.
Q. The necessity is to apply a fair amount of oil to the coil?
A. No, not great.
Q. At all events, there has always been a great deal of oil?
A. No.
Q. You say it differed from time to time? A. Yes.
Q. You were provided with safety boots? A. Yes.
Q. You had them on on this day? A. Yes.
Q. They are rubber soled? A. Yes.
Q. Are they corrugated? A. No, they have got an imprint.
Q. A gripping imprint? A. Yes.
Q. And those were the boots provided to you by the company?
A. Yes.
Q. As I understand what you are saying you went across to
lower the bar? A. Yes.
Q. And as you went to move back towards the camera on the
sketch, if I might put it that way, your foot slipped? A. Yes.
Q. And that is when you injured yourself? A. Yes. . . "

The ramp where the plaintiff was working was slippery, so it may be presumed because oil oozed from the coil on to it. There was no suggestion that the company's scheme of work should have provided for a non-slippery ramp. According to the plaintiff's evidence the operation of pulling the bar across the end of the coil on the ramp was done to straighten it out, otherwise it could not be fed through the pinch roll rods that take the end of a coil into the mill for reduction. Presumably it would not be a tenable suggestion - of course it was not made by the plaintiff - that the company should have provided for draining the oil from the length of coil on the ramp before he stepped on to it. There was no evidence that the safety boots which the company supplied to the plaintiff and which he was wearing were defective or the provision of handholds or footholds - a matter mentioned in the particulars of negligence - were practicable without interfering with the utility of the ramp. (at p206)

5. The action was for a breach of the obligation under the common law of the employer to take reasonable care for the safety of his workmen. There was no allegation of a breach of statutory duty. There is no proof that the bar was not a proper appliance, or that it was dangerous to walk on the ramp for the reason it was constructed of steel - this is alleged in the particulars. The duty of the company was no higher than to provide proper plant and appliances for carrying on the operation of feeding the whole of the coil of steel to the mill and so to carry on the operation as not to subject the plaintiff or any other workman employed with him to unnecessary risk: Smith v. Baker & Sons, per Lord Herschell [1891] UKHL 2; (1891) AC 325 ; Davie v. New Merton Board Mills Ltd. (1959) AC 604, at p 624 . The proper performance of the duty requires the employer to exercise a high standard of care, but the duty is not absolute: Winter v. Cardiff Rural District Council, per Lord Porter (1950) 1 All ER 819, at p 822 . The burden of proving negligence is on the plaintiff workman, as in the case of a plaintiff who alleges negligence against a defendant who is not the plaintiff's employer. In a case in which the plaintiff sues in negligence, where the trial is by a jury, the presiding judge has to decide "whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from those facts, when submitted to them, negligence ought to be inferred": Metropolitan Railway Co. v. Jackson (1877) 3 App Cas 193, 197 . If the judge rules against the plaintiff, the defendant may apply that a verdict and judgment be entered for him. (at p207)

6. The central issue is whether the company in carrying on the operation of feeding the coil of steel in the way in which the plaintiff was doing it and wearing the "safety shoes" with which the company supplied him subjected him to unnecessary risk of sustaining injury. The plaintiff in his declaration in the present case said that he slipped when walking on the end of the steel coil on the ramp, which he was feeding to the mill. Mr. Rainer Belz, the workman whom the plaintiff called gave the following evidence:

"Q. Can you tell us what you remember seeing? A. I saw Mr.
Nelson walking across the entry ramp which had the coil end of
the coil already on the metal hoist rolled out. He walked across
the coil end to pull the bar down. In the process he slipped and
sort of lost his balance and hung on to the bar, the only thing he
could hang on to, and as he fell he hit the edge of the coil with
his left hand . . . "
Q. Are you still working there to-day? A. Yes.
Q. Is that bar there to-day? No, it is a different one. It is a
heavier bar, and is hydraulically operated. The hydraulic winch
activates it by a lever pulled on the feeder's desk.
Q. Had you seen Mr. Nelson walk on the ramp on any other
occasion before the accident? A. Yes, you always had to go up
there to pull the bar down.
Q. Do they do that to-day? A. They still have to go on the
ramp, but do not have to walk across the coil any more."

There is no evidence of the width of the ramp or of the coil being fed to the mill. If the coil was not as wide as the ramp the plaintiff would have been on the surface of the ramp when he took hold of the bar. He did not slip until he took a step backwards putting one of his feet on the surface of the coil. There is no evidence that the coil was flat on the ramp. It could be a moot point on the plaintiff's evidence whether he did not trip on the edge of the coil. The evidence of Mr. Rainer Belz is that the plaintiff walked "across the coil end to pull the bar down". There is evidence, quoted above, that the ramp is "very smooth" and "slippery", and, besides, "on this occasion there was a lot of oil because the oil runs out of the cold reduction coils and it runs out as the coils roll down". This evidence does not say anything about the surface of the coil on the ramp on the occasion in question. It proves of course that a lot of oil is applied to cold reduction coils and "it runs out as the coils roll down". The evidence does not establish any fact about the surface of the coil on which the plaintiff slipped. The cross-examination of the plaintiff elicited an answer that coils would not exude oil on to the ramp if so much oil was not applied to them. The cross-examination includes the following questions and answers:

"Q. The necessity is to apply a fair amount of oil to the coil?
A. No, not great.
Q. At all events, there has always been a great deal of oil?
A. No.
Q. You say it differed from time to time? A. Yes."

The evidence throws no light on the question whether the ramp or the coil would be rendered a dangerously slippery place for the plaintiff to walk upon when wearing the rubber-soled safety boots with a gripping imprint supplied by the company to him. (at p208)

7. The method of "straightening out" the end of a coil remaining on the ramp when the body of the coil was "sitting" on the hoist had been the practice at the mill for at least seven years before the accident happened. There was no evidence of any previous accident. The plaintiff was according to his evidence employed at the mill for a period of three years ending in 1964. He returned to the employment in February 1967. When the accident happened he was twenty-nine years of age. No evidence was given of the method of doing, at any other mill, the same kind of thing as the plaintiff was doing when he was injured. The evidence of long use at this mill of the system of work in question and the absence of evidence of a previous accident are, of course, not a conclusive answer to the plaintiff's allegation of negligence. (at p208)

8. The third paragraph of the particulars of negligence reads thus: "It is alleged that any system of work which required persons such as the plaintiff to go upon the said ramp and to exert substantial manual pressure in 'barring' the ends of coils down or which involved entering upon the said ramp or standing upon the tail ends of the said coils which were oily for any reason was an unsafe system of work or unsafe practice and should have been avoided by the defendant." There is no evidence that the plaintiff had any disability which rendered the plaintiff incapable of carrying out the work mentioned in the paragraph without incurring danger to himself. The plaintiff was, on the evidence, fully experienced in the performance of the work and accustomed to walking on the ramp and a coil on it, where the ramp or the coil was "oily". The company was entitled to rely on his using the degree of care which an ordinary prudent workman experienced in the work would have used. They took the precaution of providing him with "safety shoes" to wear when doing the work. What the plaintiff alleges is in substance that "he was injured at work, he slipped where it was slippery and where it could not but be slippery, something ought to have been done to prevent his hurting himself by slipping and it was for the jury to say what" (Neill v. N.S.W. Fresh Food and Ice Pty. Ltd., per Dixon C.J. [1963] HCA 4; (1963) 108 CLR 362, at p 364 ). A suggestion of what the company ought to have done was provided by evidence, given by himself and his witness Mr. Rainer Belz. (at p209)

9. The following is the plaintiff's evidence:

"Q. Is there a change to-day? A. Yes, there is a complete new
system. You don't have to go anywhere near the ramp now, it is
all worked by hydraulic bars and pistons.
Q. What about the lever you told us about? A. That was taken
away shortly after the accident.
Q. What sort of system have you there now? A. A hydraulic
arm that works on a piston that comes from the opposite side of
the auxiliary desk that shoots across running parallel to the
ramp."

In cross-examination:

"Q. What you have just said is that the operation to-day is a
different one to the one you were working on? A. Yes.
Q. And indeed the whole process has been remodelled, hasn't
it? A. That is right.
Q. There is new plant in part installed there? A. Yes.
Q. You were there in 1964? A. Yes.
Q. And working as a feeder? A. Yes.
Q. Were you working on this particular mill where you
sustained your injury? A. Yes.
Q. Before you left in 1964 you were quite familiar with the
process? A. Yes.
Q. And the process that was operative in the period you were
working there in 1964, before you left was precisely the same
process as when you came back in 1967? A. Yes.
Q. So at least from 1964 to the time you were injured the same
method of operation was in force. Is that so? A. Yes.
Q. Do you know when the remodelling took place? A. The
exact date I am not sure, but I would say about a month after
the accident.
Q. And a whole new plant was put in? A. Yes.
Q. When you were operating under the system which obtained
when you were there you had a desk on the camera side of the
sketch which you have drawn? A. Yes.
Q. And that was the point from which you operated the
various controls? A. Yes.
Q. That too was part of the system that had been in operation
at least from the time when you first went there? A. Yes."

The evidence of Mr. Belz on the "change" referred to in the plaintiff's evidence is as follows:

"Q. Are you still working there to-day? A. Yes.
Q. Is that bar there to-day? A. No, it is a different one. It is a
heavier bar, and is hydraulically operated. The hydraulic winch
activates it by a lever pulled on the feeder's desk.
Q. Had you seen Mr. Nelson walk on the ramp on any other
occasion before the accident? A. Yes, you always had to go up
there to pull the bar down.
Q. Do they do that to-day? A. They still have to go on the
ramp, but do not have to walk across the coil any more." (at p210)

10. No accident similar to the accident which gave rise to this action occurred before. There is no evidence to support an allegation that it was negligence on the part of the company not to adopt the new "system" described by the plaintiff's evidence quoted above. According to Mr. Belz's evidence the new "system" has not dispensed a feeder employed at the mill in question from the obligation of going on to the ramp. If in fact the method of barring down the end of a coil followed at the mill at the time of the accident was not as safe as the mechanised system adopted afterwards, this is not a sufficient reason in itself to entitle the jury to find the company guilty of negligence. (at p210)

11. Neither by direct evidence nor reasonable inference did it appear that at the time the accident happened it was the duty of the company towards the plaintiff to have had at the mill "A hydraulic arm that works on a piston that comes from the opposite side of the auxiliary desk that shoots across running parallel to the ramp" (supra). (at p210)

12. In my opinion it was not open to the jury to find without expert evidence that the mere substitution of a system involving a mechanical rather than the existing manual operation was a possible or practical alteration for the company to make in the plant at the mill (See Munkman, Employer's Liability at Common Law, 7th ed., at p. 41). I think there is substance in the observation made by Hutley J.A. in the Court of Appeal in this case which is as follows: "It would be quite wrong to allow juries or Judges to rely upon their common knowledge to supplement deficiencies of evidence where alterations to a large and sophisticated plant are under consideration". (at p210)

13. According to the evidence I have quoted the new system involved removing the bar that the plaintiff was pulling down when he stumbled and using a heavier level mechanically operated. It is possible on the evidence that that was a more efficient appliance but too heavy to pull down manually. The jury returned a general verdict. It does not appear what is the allegation of negligence in the declaration they found proven. The evidence does not in my opinion establish any fact from which any item of negligence alleged in the declaration and particulars of negligence may reasonably be inferred. (at p210)

14. The conclusion of the judges of the Court of Appeal is in my opinion right. I would dismiss the appeal. (at p211)

GIBBS J. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales setting aside a verdict given by a jury in favour of the appellant in an action brought against the respondent for damages for personal injuries sustained by the appellant in an accident suffered while in the employment of the respondent on 27th November 1968. On that date the appellant was employed in the respondent's mills at Port Kembla. As part of his duties he was required to assist in moving coils of steel down a ramp and on to a hoist from which they were fed into rollers. The coils were from four to sixteen tons in weight and from two to six feet in width. The ramp down which they were moved, past a series of stops operated hydraulically, was made of steel; its length does not appear but it sloped from a height of three or four feet at one end down to a height of eight or ten inches at the lower end near the hoist. When a coil had been placed on the hoist its tail would remain lying on the ramp and it was then necessary to hold the tail straight, for if this were not done the coil would roll up and could not be fed into the mill. At the date of the accident the means provided for holding the tails of the coils in position was a heavy bar, weighted at one end so that it normally remained vertical and which had to be lowered by hand. To lower the bar an employee had to step up on to the ramp at its lower end, walk across it, take hold of the bar, and, still holding the bar and pulling it down as he went, walk backwards across the ramp to the side from which he had come, where he would clamp the bar in position. While the appellant was walking backwards across the ramp with the bar held in one hand he slipped and fell. He cut his hand on the edge of the coil and suffered injuries whose consequences were quite serious. (at p211)

2. The ramp was made of steel and had a smooth surface. The coils were impregnated with oil which tended to run out on to the ramp and make it slippery. The appellant said in evidence that he walked across the ramp but it is apparent, both from a consideration of what was necessarily involved and from the direct evidence of another witness, Belz, that he had to walk both on the ramp and on the coil itself. The appellant described the ramp as "very smooth and slippery", and although he did not expressly apply that description to the coil it was open to the jury to infer that the oil on the surface of the metal coil made that slippery as well. The appellant was provided with protective clothing - safety shoes, which had rubber soles with a gripping imprint, gloves and a helmet. He was wearing these at the time. However, the shoes, although apparently designed to stop him from slipping, did not achieve that result. The appellant said that the edges of the coil were very sharp; he added: "It is not uncommon for people to get cut down there with them or to cut through your gloves". (at p212)

3. The system of work which was in force at the date of the accident, involving the use of a bar lowered by hand, had been employed at least since 1964. It was submitted by the respondent that there was no evidence that there had been any other similar accidents while this system was in use but in fact, although there was no clear evidence one way or the other, the appellant's statement that it was not uncommon for people to get cut suggests that accidents had previously occurred. However, I would not base any conclusion in favour of the appellant on uncertain evidence of that kind. About a month after the accident there was installed what the appellant called "a complete new system"; the tails of the coils are now held in place by a bar which is operated hydraulically and worked by a lever, so that a workman can lower it without walking across the ramp. The appellant said that it is now not necessary to go near the ramp but the other witness who gave evidence on this matter, Belz, said that the workmen "still have to go on the ramp but do not have to walk across the coil any more". Notwithstanding this conflict of evidence it is clear that the new system does away with the need for a workman to walk backwards across the slippery surface of the ramp and the coil for the purpose of lowering the bar. At the trial counsel for the respondent directed only a few questions to the appellant in relation to his evidence as to the new system of work. His cross-examination of the appellant on this issue was as follows:

"What you have just said is that the operation today is a
different one to the one you were working on? - Yes.
And indeed the whole process has been remodelled, hasn't it? -
That is right.
There is new plant in part installed there? - Yes.
. . .
Do you know when the remodelling took place? - The exact
date I am not sure, but I would say about a month after the
accident.
And a whole new plant was put in? - Yes."

Belz, in chief, was asked, "Is that bar there today?", and he answered, "No, it is a different one. It is a heavier bar, and is hydraulically operated. The hydraulic winch activates it by a lever pulled on the feeder's desk". Belz was not cross-examined at all. (at p212)

4. The burden of course lay upon the appellant to establish that his injuries were caused by the negligence of the respondent. The appellant was required to perform part of his work by walking backwards across a slippery surface near to the coil whose edges were very sharp. It was obvious in these circumstances that there was a risk that the appellant might fall and suffer injury of a serious kind. The respondent therefore had a duty to take reasonable care to protect the appellant from this real and obvious danger. It appears to have recognized this duty by providing the appellant with protective clothing. However, the question is whether it would have been reasonable for the respondent to take further precautions to eliminate or minimize the risk of injury to which the existing practice exposed its employees. (at p213)

5. The appellant did not attempt to submit that this is the sort of case in which common knowledge or common sense might enable one to say what precautions might reasonably have been taken by the employer to avoid the risk. The appellant's case was that the evidence had revealed the existence of a practicable system the adoption of which would have avoided or reduced the risk, namely, the use of hydraulic power to move the bar. The Court of Appeal rejected this contention. Their Honours took the view that the evidence showed that the subsequent installation of a bar operated by hydraulic power was only part of a completely new system designed to carry out the whole operation and that there was nothing to show that it would have been feasible to install such a bar by itself. Hutley J.A. said:

"The only evidence is that as part of the remodelling of the
whole process in the cold reduction mill there had been installed
an hydraulically operated bar, and there is no evidence that it
was reasonable or indeed possible to install an hydraulically
operated bar as a single separate operation." (at p213)

6. With great respect to their Honours, this view of the effect of the evidence is not one which the jury was bound to adopt. The descriptive phrases "a complete new system" and "a whole new plant" were used in relation to the operation in question - the use of a bar to hold down the tail of the coil - and in that context might well have been regarded by the jury as referring only to the system and plant used in place of a bar lowered by hand. Further, counsel for the respondent, having obtained the assent of the appellant to the suggestion that the whole process had been remodelled - which, taken alone, might have lent support to the view taken by the Court of Appeal - immediately went on to speak of the installation of "new plant in part" which strongly suggests that the installation did not extend to the whole process. The evidence of Belz, to which I have referred, seems to support the conclusion that the only innovation was in relation to the bar. There is nothing in his evidence to suggest that there was anything new except the bar and the plant used to operate it. The fact that counsel for the respondent in cross-examination did not make any explicit suggestion that the installation of the hydraulically operated bar was part of a much wider operation is most significant in weighing the effect of the evidence given by the witnesses. If one inquires what was the remodelling or new system or new plant, if it extended beyond the provision of a hydraulically operated bar, there is nothing in the evidence or in counsel's questions that enables any answer to be given to the inquiry. The evidence as a whole may have been susceptible of two interpretations but in that case it was for the jury to decide upon its effect. (at p214)

7. The learned trial judge seems to have shared the view of the Court of Appeal that the evidence meant that the new hydraulic bar had been installed as part of a remodelling of the whole plant used in the cold reduction process. In giving his judgment on the respondent's application for a verdict by direction he said that counsel for the respondent had rightly pointed out that after the accident when the system of lowering the bar was altered to a remote control hydraulic method, a whole new plant was installed. As I have indicated, this seems to be a statement too favourable to the respondent. He went on to say:

"I think I am entitled to infer, and so would the jury, that it
would have been practicable without the installation of any new
plant to have re-designed the bar so as to enable it to be
operated by hydraulic means, thus rendering it unnecessary for the
operator to cross the ramp."

Hutley J.A. in the Court of Appeal said that he considered that this passage contained an error in law. In my opinion, however, the conclusion reached by the learned trial judge that the appellant had made out a case fit to be submitted to the jury was correct, even if it be assumed that the bar was installed as part of a much wider remodelling of the plant. Even on that assumption the appellant has shown that it was practicable to provide a new method of doing the work that would eliminate or minimize the risk, because such a new method has in fact been put into operation. In determining whether a reasonable employer would have provided such a new system it would be necessary to consider not only the degree of risk of accident and injury likely to result if no such provision were made, but also the disadvantages, if any, of taking the suggested precaution - cf. Hamilton v. Nuroof (W.A.) Pty. Ltd. [1956] HCA 42; (1956) 96 CLR 18, at p 26 . The onus of proving that it was unreasonable not to take the precaution, of course, lay on the appellant. However, when the respondent, which must have had full knowledge of the nature, cost and practical consequences of the new installation, gave no evidence, and by its counsel asked no questions, to suggest that it was inordinately expensive or in any other way disadvantageous, the jury was entitled to infer at the very least that the advantages of the method which the respondent has since adopted were not outweighed by any disadvantages. (at p215)

8. The evidence was such as to entitle the jury to reach the conclusion that the respondent's system of work in force at the time of the accident, notwithstanding that it involved the provision of protective clothing, was such as to expose the appellant to a clear risk of serious injury, that it was practicable to eliminate or minimize that risk by the adoption of a different method, namely, that which has in fact since been adopted, and that it was unreasonable of the respondent not to have adopted that method before the accident occurred. The Court of Appeal was therefore in error in holding that the case was not properly left to the jury. (at p215)

9. We were pressed in argument with Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1963] HCA 4; (1963) 108 CLR 362 , a case which superficially resembles the present in that in both a worker who was obliged to work on a slippery surface fell and sustained injury. However, the circumstances of the two cases are quite dissimilar; in particular in the earlier case there was no evidence as to what steps the employer could have taken to protect his employees from the danger and for that reason alone that decision is distinguishable from the present. (at p215)

10. I would allow the appeal and restore the verdict given in favour of the appellant at the trial. (at p215)

STEPHEN J. I agree that this appeal should be allowed and that the verdict of the jury should be restored; there is nothing that I wish to add to the reasons for so deciding which appear in the judgment of Gibbs J. (at p215)

MASON J. For the reasons given by Gibbs J. I would allow the appeal and restore the verdict given in favour of the appellant at the trial. (at p215)

ORDER

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the verdict and judgment given in favour of the appellant at the trial be restored.