Twynam Pastoral Company Ptd Ltd v Bennett [2002] NSWCA 319 (23 September 2002)

Last Updated: 24 September 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Twynam Pastoral Company Ptd Ltd v Bennett [2002] NSWCA 319

FILE NUMBER(S):

40997/01

HEARING DATE(S): 29 July 2002

JUDGMENT DATE: 23/09/2002

PARTIES:

Twynam Pastoral Company Pty Ltd (Appellant)

Donald Bennett (First Respondent)

Hay Rural Services Pty Ltd (Second Respondent)

National Grazing Services Pty Ltd (Third Respondent)

JUDGMENT OF: Sheller JA Beazley JA Heydon JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 41/99

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:

Mr J D Hislop QC/Mr J Roberts (Appellant)

Mr D R Conti (First Respondent)

Mr C R R Hoeben SC/Mr B D Dooley (Second Respondent)

Mr J W Dodd (Third Respondent)

SOLICITORS:

Landerer & Company (Appellant)

Robb & Associates (First Respondent)

Leitch Hasson Dent (Second Respondent)

Dibbs Barker Gosling (Third Respondent)

CATCHWORDS:

Tort - negligence - duty of care - occupier's liability - duty to provide safe workplace - whether duty fulfilled - whether conduct of plaintiff reasonably foreseeable

Tort - negligence - duty of care - employer's liability - knowledge of employer - whether sufficient to raise duty of care - ND

LEGISLATION CITED:

DECISION:

The appeal and cross-appeal are dismissed. The appellant is to pay the costs of the respondents (including the costs of the cross-appellant's cross-appeal).

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40997/01

DC 41/99

SHELLER JA

BEAZLEY JA

HEYDON JA

23 September 2002

TWYNAM PASTORAL COMPANY PTY LTD v BENNETT

Tort - negligence - duty of care - occupier's liability - duty to provide safe workplace - whether duty fulfilled - whether conduct of plaintiff reasonably foreseeable

Tort - negligence - duty of care - employer's liability - knowledge of employer - whether sufficient to raise duty of care

The plaintiff was a shearing overseer employed by the second and third defendants, who were shearing contractors. The first defendant, a pastoral company which owned and managed grazing properties, engaged the second and third defendants to carry out a shearing operation. The second and third defendants asked the plaintiff to attend the first defendant's property to oversee that operation.

In the course of preparations, the first defendant's "head jackeroo" asked the plaintiff to repair a faulty hydraulic wool press located in the defendant's shearing shed. The plaintiff required elevation above the press to complete the repairs. Where the press stood, elevation could be achieved by use of a ladder or by standing upon a greasy monkey which was part of the press. Alternatively, elevation could be achieved by moving the press to a nearby platform. A request by the plaintiff to the jackeroo for supply of a suitable ladder was not complied with. The plaintiff was unable to move the press independently and no workmen were supplied to move it. The plaintiff sustained personal injury when he engaged in examination of the machine from the greasy monkey and fell. He sued in negligence alleging that: (1) the first defendant had failed to provide a safe workplace; and (2) the second and third defendants had failed to provide him with equipment necessary for the plaintiff to carry out his work. He succeeded at trial against the first defendant but failed as against the second and third defendants.

The first defendant appealed as to liability and quantum. It also argued that the second and third defendants should have been found liable. The plaintiff defended the decision of the trial judge, but in the event that the first defendant's appeal succeeded the plaintiff cross-appealed, alleging that the second and third defendants should have been found liable. The second and third defendants defended the whole of the trial decision.

Held (Heydon JA, Sheller and Beazley JJA agreeing), dismissing the appeal:

1. As to the first defendant's liability:

a. It was reasonably foreseeable that the plaintiff would engage in the conduct which led to his injury: [61].

b. Different possible courses of action which the plaintiff might have taken were not clearly more effective and likely than what the plaintiff actually did as to make what he did not reasonably foreseeable: [49]-[60].

c. It was reasonably foreseeable that a man with the capacity to work alone without direction which the plaintiff had would have been likely to have become lost in concentration on the difficulties and rhythms of the task without paying an entirely self-interested regard to the dangers involved in one particular aspect of it: [60]-[61].

2. As employers, the second and third defendants owed a duty of care to the plaintiff, but their failure to provide the plaintiff with a suitable ladder did not breach that duty. In an ordinary case where it is alleged that an employer breached a duty of care to an employee, the employer is in a position of superior knowledge and power and is in a better position to assess by inspection and other preliminary consideration what risks may affect the employees, and a better position of power to take reasonable precautions against those risks. The head jackeroo's request to repair the wool press was not expected by the plaintiff or the second and third defendants. The employers did not have knowledge sufficient to raise a duty to supply the plaintiff with a suitable ladder: [81]-[82].

Sullivan v Moody [2001] HCA 59; (2001) 75 ALJR 1570, considered.

O R D E R S

1. The appeal and cross-appeal are dismissed.

2. The appellant is to pay the costs of the respondents (including the costs of the cross-appellant's cross-appeal).

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40997/01

DC 41/99

SHELLER JA

BEAZLEY JA

HEYDON JA

23 September 2002

TWYNAM PASTORAL COMPANY PTY LTD v BENNETT

Judgment

1 SHELLER JA: I agree with Heydon JA.

2 BEAZLEY JA: I agree with Heydon JA.

3 HEYDON JA: This is an appeal against orders made by Williams DCJ on 14 November 2001 after a trial which took place on 5-7 November 2001 and after reasons for judgment were delivered on 12 December 2001.

4 On Monday 6 January 1997 the plaintiff, then aged 56, was rung up by Mr Clarke, managing director of National Grazing Services Pty Ltd (the third defendant) and asked to go to a property called Toganmain in order to check that the shearing equipment was operational. It was intended that many thousands of sheep would be shorn in the 21 stand shed on Toganmain commencing on Monday 13 January 1997. National Grazing Services Pty Ltd was the shearing contractor engaged by the proprietor and occupier of Toganmain, Twynam Pastoral Co Pty Ltd (the first defendant), to carry out that shearing operation.

5 On Tuesday 7 January 1997 the plaintiff arrived at Toganmain, having driven from his home at Junee two and a half or three hours away. He there found two jackeroos and Mr McGillivray, the livestock overseer and the person in charge of the jackeroos. Mr McGillivray was an employee of the first defendant. Mr McGillivray told the plaintiff to fix a wool press, known as the MacLodge press, and said that he did not know what was wrong with it. The plaintiff told Mr McGillivray in effect that if he were to fix the wool press, either he would need a ladder or the wool press would have to be rolled over to a landing. Since the wool press weighed about half a ton, and since the floor of the shearing shed was uneven, this operation would require several men, even though the press had wheels. The wool press in question was owned by the first defendant. Mr McGillivray and the jackeroos then departed, leaving the plaintiff alone.

6 After doing some work on the shearing equipment, but not completing it, the plaintiff slept the night at Toganmain. On the morning of Wednesday 8 January 1997, after doing some work on a Sunbeam wool press, the plaintiff began to work on the MacLodge press. He worked for about three hours. The trial judge made the following findings about an accident which then happened. After lunch the plaintiff carried out work on a particular mechanism of the press.

"The mechanism in question was on the very top of the press and required the plaintiff to be able to bend over the top of the press and exercise some downward force to extract a burred shaft. In order to access the top of the press, he raised the monkey almost to the top and stood on its upward side which was greasy and dirty from oil leaking from the hydraulic ram.

Whilst striking at the shaft he slipped and fell to the ground."

7 After the accident the plaintiff called out, but unavailingly, since there was no-one within three miles. After some time the plaintiff managed to crawl to his utility. He then drove to Junee in "agony". He spent Thursday in pain and in bed, but gave directions to his son about the manufacture of a part for the press to replace a defective part. On Friday the son drove to Toganmain with his father, who was in "shocking" pain and "in agony", and fitted the part pursuant to his father's instructions.

8 The trial judge found that at the time of the accident both the second defendant and the third defendant were employers of the plaintiff. He found that the plaintiff was asked by a responsible employee of the first defendant, namely Mr McGillivray, to fix the MacLodge press. He found that the work on the press could not be done safely unless a better ladder was provided than a stepladder which was in the shed or unless men were provided to move the press to the platform. It was unrealistic to expect the plaintiff to institute a search for a satisfactory ladder or sufficient men to move the press or to drive to his home in Junee and return with a ladder. The trial judge found that the first defendant owed the plaintiff a duty of care and was in breach of it. He found that there had been no contributory negligence on the part of the plaintiff. He also found that it was not established that the plaintiff's employers had been negligent. He ordered the first defendant to pay the plaintiff's costs; ordered the plaintiff to pay the costs of the second and third defendants; and made a Bullock order that the first defendant pay the costs which the plaintiff had been ordered to pay to the second and third defendants.

The structure of the appeal

9 The first defendant attacked the trial judge's findings in favour of the plaintiff and against it on liability, and attacked the trial judge's calculation of economic loss. The first defendant also contended that the second and third defendants should have been found liable to the plaintiff.

10 The plaintiff defended the trial judge's findings so far as they supported the trial judge's verdict in his favour against the first defendant. But the plaintiff also argued, in support of a cross-appeal, that if the first defendant's appeal on liability succeeded, the trial judge had erred in not finding that the second and third defendants were liable. To this extent the plaintiff joined forces with the first defendant.

11 The second defendant defended the totality of the trial judge's reasoning, particularly so far as it was favourable to the second defendant's interests. So did the third defendant.

The first defendant's appeal on liability

The trial judge's reasoning on liability

12 The core of the trial judge's reasoning on liability was as follows:

"The plaintiff knew what was required for him to be able to safely work on the press if that work was located at the top of the press. He needed either a ladder or for the press to be moved next to the landing. The plaintiff having informed the first defendant of those requirements, it wasn't for the plaintiff to have to be spending time tracking people down on a 200,000 acre property to see if they would assist him or if a ladder could be located.

The first defendant, Twynam, is a very substantial client of NGS. Mr Clarke gave evidence that NGS's margins on the shearing contract were tight so that it was in NGS's interest to have a smooth operation. It was also in the first defendant's interests to start the clip on time and have it continue smoothly.

The plaintiff could have decided not to do anything in regard to the wool press until the shearers arrived on 13 January but that would have meant that the shearing could not have properly started until several days later. The first defendant should have been aware that, if it requested the plaintiff to repair the press and then failed to provide the plaintiff with safe access to that part of the press that needed repair, then the plaintiff would have to use unsafe means of access in order to complete the work with the attendant risk of an incident occurring.

The first defendant should have realised that if work was required to be done on top of the press, there was no safe way of the plaintiff working at that height unless an appropriate ladder was supplied or the press was moved. That did not occur and there is no evidence to suggest that the process to achieve either was even commenced in the time that the plaintiff was there. I disagree that there is no nexus between that failure and the incident because the obligation on the defendant, the first defendant, was a continuing one until the job was finished. A person cannot just turn their back on a situation and then rely on the passage of time as absolving them from liability. That might be the case if the time involved was substantial but, where a person sets another a task to complete and then makes no further enquiry as to the successful completion of the task within a reasonable time frame, then that would seem to me to be an abrogation of the duty of care, particularly where the worker had asked the other party to carry out certain activities associated with the proposed works.

There is no evidence that even up to and including Friday 10 January 1997 that any of the first defendant's personnel sought to ascertain if the wool press had been fixed as requested. A party that institutes an unsafe work environment does not render itself immune to action merely because time passes. If a person is injured within that unsafe environment and because of it, then generally speaking the first party would still remain liable.

...

In my view in the circumstances applying here it was unrealistic and impractical to have expected the plaintiff to institute in effect a search for a ladder or for sufficient personnel to move the press just as it was ineffectual for the plaintiff to return to Junee and return with a ladder, a round trip of some five to six hours.

In any event I note that Mr Clarke who has considerable experience in the industry and with the Toganmain shed was of the view that a ladder would not necessarily solve the problem because of the unevenness of the floor surface it would be required to be placed upon. The plaintiff had in fact assisted with repairs to this wool press some eighteen months before when it was pushed over to the landing and he held a metal piece in place while this was welded by an employee of the first defendant. Clearly on that occasion it was considered necessary and advisable that the press be moved to the landing for that work to be safely carried out.

In my view the first defendant had a primary liability to the plaintiff. It had a duty of care which it breached and that breach was causative of the plaintiff's injuring himself."

13 The first defendant did not attack the trial judge's conclusion that the stepladder in the wool shed was unsuitable for working on top of the MacLodge press; that it was feasible to move the press close to a landing "which would allow easy access to the top of the press from the steady and non-slippery wooden floor of the landing"; and that Mr McGillivray "could easily have responded to the plaintiff's request for the ladder". Each of these conclusions was soundly based on the evidence.

What did Mr McGillivray say?

14 One issue raised related to the correctness of the trial judge's finding about the conversation between the plaintiff and Mr McGillivray. The trial judge found that the conversation was along the following lines:

"Plaintiff: I am here to fix the shed shearing machinery.

McGillivray: Well, fix the press too.

Plaintiff: What's the matter with the press?

McGillivray: I don't know.

Plaintiff: I will need a ladder or you will have to roll it (that is the press) over to the landing like you did last time. I also need a gallon of diesel to clean the shearing equipment.

McGillivray: Righto."

15 The trial judge delivered judgment on circuit without access to a transcript. The first defendant contended that this caused the trial judge to err in that finding. It was submitted that the trial judge had failed "to recall that essentially the ladder was asked for in relation to something to do with the electric motors that drive the overhead gear for the shearing and not in respect of the press itself".

16 The evidence of the plaintiff about the conversation in chief was:

"I said I was there to fix the shearing machinery and he said: `Well, fix the press too' and that was it. I said: Well, I wanted a ladder, I said, because the electric, the belts on the electric motor that drive the overhead gear for the shearing were loose and I wanted the ladder to tighten them and I had needed to fix the wool press. I said either that or roll it over against the landing like you did last time and that was - and I asked for a gallon of diesel to wash the shearing machinery in."

17 The plaintiff was cross-examined about the conversation by counsel for the first defendant. In the first passage of cross-examination on this subject the plaintiff was not cross-examined in such a way as to suggest that the only purpose for which the ladder was sought was to carry out work on the electric motors driving the overhead shearing gear as distinct from the press. The second passage on this subject was as follows:

"Q. After the head jackeroo said he didn't know what was wrong with it, you told him you needed [a] ladder because the belts were loose and you needed to fix the wool press? [emphasis added]

A. Yeah.

Q. Is that right?

A. Yes.

Q. Do you remember what if anything he said after that?

A. I asked him for diesel because you bend the elbow up on the -

Q. Yeah, I am sorry, do you remember what if anything the head jackeroo said after you said that to him about needing a ladder for the - because the belts were loose and you would need the ladder to do the wool press as well? [emphasis added]

A. Well, I think he said: `Righto'.

Q. Right. And then you said to him: `Can I have some diesel'?

A. Have some diesel because you wash the cogs with it.

Q. Right?

A. And either that or push the wool press over near the landing."

18 Counsel for the second defendant also cross-examined about the conversation and elicited the following evidence:

"Q. Now, the jackeroo told you that a press was broken, is that correct?

A. That's correct.

Q. And you asked him for a ladder, is that right?

A. That's right.

Q. What sort of ladder did you have in mind?

A. Just a ladder. I didn't care what it was.

Q. And what did you need the ladder for? Why did you think you needed one?

A. To reach the top of the wool press."

19 Mr McGillivray in his evidence in chief recalled that he had had a discussion with the plaintiff, but he could remember no more about the detail of it than that he asked the plaintiff to fix the press. He did not recall being asked for a ladder or being asked to move the press to a landing. In cross-examination he said he did not deny that he had been asked for a ladder.

20 In these circumstances it was not surprising that the trial judge, who found the plaintiff, despite memory difficulties caused by subsequent heart surgery, to be an "extremely credible" witness, made the finding about the conversation which he did.

21 The first defendant's submission was that the plaintiff's evidence in chief on its true construction was that he wanted the ladder in connection with the shearing gear, not the press. The first defendant did concede, however, that "one possible construction" of the plaintiff's evidence in chief was that he said he wanted the ladder both to tighten the belts driving the overhead shearing gear and to fix the press. In my opinion it is not only a possible construction, but the correct construction. Nothing in the first part of the cross-examination conducted on behalf of the first defendant weakened that construction, and the content of both the second part of that cross-examination, and the cross-examination conducted on behalf of the second defendant, supported it.

22 Accordingly the challenge to the trial judge's finding about the conversation fails.

Would the plaintiff have taken "orders from the jackeroo"?

23 The first defendant contended that it could not be liable in consequence of anything Mr McGillivray said because "the evidence from the plaintiff was that he wouldn't take orders from the jackeroo anyway so it was completely up to him whether he did carry out that work or not."

24 The following factual weaknesses exist in relation to this argument.

25 First, though Mr McGillivray was only about 22, the plaintiff did not see Mr McGillivray as a mere jackeroo. He thought "he was the head jackeroo" - "the boss bloke". He also described earlier dealings between himself and Mr McGillivray in which the latter carried out responsible pastoral activities.

26 Secondly, when the first defendant called Mr McGillivray to give evidence, he said in answer to several leading questions that at the relevant time he was employed as livestock overseer, and that though there was no head jackeroo, insofar as anyone was in charge of the jackaroos it was him.

27 Thirdly, the evidence about the plaintiff's attitude to orders from jackeroos was as follows:

"Q. Now, you were spoken to by a jackeroo, is that right?

A. That's right.

Q. Do you ordinarily take orders from jackeroos on properties?

A. It all depends what the orders are.

Q. Well, by that do I take it you make a decision whether you are going to comply with any request from jackeroos?

A. That's right.

Q. If it suits you, you comply; if it doesn't suit you, you don't comply?

A. Well, if I think it's reasonable I might but if I think it's unreasonable I wouldn't."

The cross-examination did not establish that the plaintiff did not regard the request from Mr McGillivray as unreasonable. Indeed, his determined attempts to comply with it, and the importance which Mr Clarke saw in his complying with it, indicated that he regarded it as something which it was important to comply with.

The unavailability of twenty men to move the press

28 The first defendant submitted that the plaintiff's request for the press to be moved to the landing was incapable of being complied with until shearing commenced on Monday 13 January, when twenty-one shearers employed by the second and third defendants would be present. The first defendant based this submission on the proposition that on an earlier occasion it had taken twenty men to move the press. The first defendant only employed seven men. It must thus have been beyond the contemplation of both the plaintiff and the first defendant (through Mr McGillivray) that the press would have been moved before 13 January.

29 This submission rested on the erroneous assumption that on the previous occasion referred to in the conversation between the plaintiff and Mr McGillivray as many as twenty men had been needed. It is true that in describing how the press had been repaired eighteen months earlier, the plaintiff said in chief: "We had a team of shearers, I think there was twenty shearers and we repaired it as quickly as possible. They pushed it over against the landing and I think the station hand welded the top on and I held it. And that was it. Pushed it back and they got into action again." The trial judge referred to that evidence, but only in support of the finding that the press was "a heavy and cumbersome machine". In fact only a few of the shearers can have done the pushing, because under cross-examination conducted on behalf of the second defendant, the plaintiff said:

Q. And can the press be moved around?

A. Yeah, if you're strong enough, you have got a wheel you pull down and roll it about.

Q. It's on wheels?

A. Yeah.

Q. But it requires a few people to push it around?

A. It takes some - well, it weighs about half a tonne so it takes some pushing about, especially on an uneven pine floor. I can't - couldn't shift it."

30 In short, the first defendant did have sufficient employees to move the press in the manner indicated by the plaintiff before 13 January 1997 if it had chosen to make them available. That conclusion is not altered by the fact that after Mr McGillivray and the two jackeroos left on the morning of Tuesday 7 January, the plaintiff saw no employees of the first defendant on that day or the next; and he and his son saw none when they came to complete the repairs to the press on Friday 10 January. The first defendant had simply failed to make the employees available.

The adequacy, or perceived adequacy, of the ladder in the shed

31 The first defendant submitted that there was a stepladder in the shearing shed which was over a metre in height. The top of the press was 2.3 metres above the floor. The plaintiff, a man of 180 centimetres in height, could thus stand on the top of the stepladder to get at the top of the press. On being reminded of the finding by the trial judge that the stepladder was unsuitable for doing any work on top of the press, the first defendant indicated that it did not wish to challenge that finding, but merely to contend that there was no reason why Mr McGillivray would believe that the materials to hand were inadequate. "He wasn't asked to provide a ladder of a certain dimension or the like to do the work on the press". The first defendant thereafter referred to the stepladder as being "prima facie" adequate, or as a ladder whose inadequacy only became apparent as the plaintiff worked on the press the following day.

32 The problem is, however, that the plaintiff asked for a ladder. Mr McGillivray did not reply "there is a stepladder". Nor did he ask what sort of ladder was needed. It cannot be said that Mr McGillivray produced a ladder of any kind in response to the plaintiff's request beyond leaving it to the plaintiff to find the inadequate stepladder. Even if Mr McGillivray may have thought the stepladder would do, it was not a subject which could profitably be explored with him: on being shown a photograph, he remembered it, but could not remember whether it was there in January 1997. Contrary to a submission of the first defendant, Mr McGillivray did not say that the stepladder would be adequate to reach the overhead belt on the shearing machinery (being about the height of the press): he said "[I] couldn't tell you. I couldn't be sure." The first defendant also submitted to this Court that Mr Wragge, the first defendant's livestock manager, believed the work on the press could have been carried out from the stepladder. That is how his evidence began, but not how it finished. He said:

"Q. Mr Wragge, there were certain parts of both the shearing machinery and as well as the wool press that couldn't be gained access to by the four-step ladder which has been shown to you, that's correct, isn't it?

A. I haven't actually myself seen but I believe it should have been accessed by that ladder.

Q. You haven't actually seen it but you believe it?

A I believe it, I haven't actually tried it myself.

Q. Well, you haven't tested it yourself, have you?

A. That's right.

Q. And I want to suggest to you that the overhead drive which was shown to you a few moments ago by Mr Roberts, that was part of the shearing machinery that any mechanic or anyone working on the machinery couldn't gain access to by the four-step ladder?

A. I believe they could.

Q. They couldn't?

A. They could; I believe they could.

Q. You believe they could but you have actually never seen it happen?

A. I have never seen it happen, no.

Q. I also want to suggest to you that there were certain parts of the MacLodge wool press that anyone working on carrying out repairs to it, couldn't gain access to it by the use of the four-step ladder?

A. Again, I must answer that I haven't seen it myself but I believe it possibly could be.

Q. And, if work had been carried out to the top part of the shaft near the guide and return post, can you say from your experience whether that could be gained access to by the four-step ladder?

A. Obviously it couldn't.

Q. It couldn't?

Q. Obviously you couldn't."

In any event that evidence casts no real light on what Mr McGillivray perceived or ought reasonably to have perceived about the adequacy of the stepladder. The plaintiff did not use the stepladder to gain access to the press: rather he simply climbed up the press. The stepladder was plainly unsuitable as a working platform; failing the ladder requested by the plaintiff or the platform requested by the plaintiff, he had nowhere to work but on the oily surface of the "monkey" on top of the press.

Did Mr McGillivray agree to the plaintiff's request? Did Mr McGillivray have authority to agree to it?

33 The first defendant attempted to characterise the conversation between the plaintiff and Mr McGillivray as a means by which the plaintiff was put on notice of a defect which was entirely within his choice to fix or not; that the plaintiff did not request a ladder; and that Mr McGillivray's "righto" was not an agreement with that request or a promise to comply with it.

34 This characterisation is wholly unrealistic.

35 If Mr McGillivray, knowing that there was something defective - "a bit dodgy" - about the press, had failed to draw it to the plaintiff's attention and get it fixed before 13 January 1997, his superiors within the first defendant would have been justifiably annoyed. It would have been very unlikely that a single press could have coped for long with the wool shorn by twenty-one shearers from the start of work on 13 January 1997. It is no doubt for this reason among other reasons that the trial judge said "the plaintiff was asked by a responsible employee of the first defendant to fix the MacLodge press". If Mr McGillivray had authority to make the request of the plaintiff, he had the authority to assent to the conditions which the plaintiff imposed in relation to his mode of complying with the request.

36 In short, though the conversation was brief, it was likely to be understood at least by the plaintiff as being a serious one. The event must have appeared to him to be, and was in fact, a request by him to which the first defendant through its most senior available employee agreed.

Was it reasonably foreseeable that the plaintiff would begin working on the top of the press on an oily surface?

37 The first defendant submitted that even if all its other arguments against the trial judge's finding of duty and breach of duty failed, there was one obstacle to the plaintiff's success: it was not reasonably foreseeable that if a suitable ladder was not produced (no time having been specified) and if the press was not rolled up to the platform, the plaintiff would climb onto an oily and slippery part of the press and begin working on that dangerous surface.

38 First, it was submitted that the plaintiff was a very experienced man. He had carried out the work of preparing sheds for shearing, including work on machinery, for years.

39 Secondly, he knew before he went to Toganmain that the overhead shearing gear needed work and that it could not be done from the ground. He went there without an adequate ladder for that work.

40 Thirdly, on the day of the accident the plaintiff had worked on the press for about three hours; he knew the monkey was greasy; he knew it posed a risk of injury.

41 Fourthly, it was submitted that the plaintiff was not pressed for time. He said he "went out for the week", and arrived on Tuesday 7 January. Had he not been injured, the work to fix the press would have taken four or five hours. He had done as much work as he was proposing to do on the overhead equipment powering the shearers' hand pieces; he had finished with the Sunbeam press; a gate he had expected to have to repair had already been repaired; and the MacLodge press was the last job.

42 The plaintiff had open to him several options: he could drive back to his home at Junee two and a half hours away and return with the ladder which he had in his shed; he could drive to Hay or Narrandera three quarters of an hour away and buy a ladder; he could ring the superior officers of his employers and tell them of his problem (having rung Mr Cane, the overseer of the shearing operations just after speaking to Mr McGillivray, and he rang Mr Clarke as he drove himself home after the accident); he could travel five kilometres from the shearing shed to a farm owned by the first defendant which Mr McGillivray believed contained a ladder; or he could wait until enough people arrived to move the press next to the platform, since there was evidence that before Monday 13 January employees of the first defendant would arrive to get the premises ready for occupation by the shearers.

43 The first defendant laid stress on these possibilities as negating the impression which it said the trial judge was apparently under, namely that the plaintiff was in a position of total isolation and inability to contact others. The first defendant submitted that not only did the existence of these options render it not reasonably foreseeable that a delay in providing a ladder or moving the press would cause injury, but they demonstrated either that the true cause of the plaintiff's injury was his own failure to take one of those options, or that the plaintiff was responsible for a significant degree of contributory negligence.

44 It was common ground between all parties that the trial judge was correct in concluding that it was undesirable for the plaintiff to have commenced work on the oily top of the MacLodge press until it was moved or until a ladder was provided. By some point in the middle of Wednesday 8 January, after the plaintiff had finished all the work except the repair of the MacLodge press, he must have realised that the top of the press would involve risk in view of the oily surface. As he stood in the shearing shed, surrounded by the heat and silence of Toganmain with no other human being of whom he was aware within three miles, he had the following possibilities available to him. Some were raised by the first defendant in address, some others were raised on the evidence, but they all illuminate the problem before him. In evaluating the problem and in evaluating how a reasonable man would have solved it, four matters must be remembered.

45 The first matter to be remembered is that it was imperative that both wool presses be operational by Monday 13 January 1997. The evidence is all one way that that is so. If there were any doubt about it, it is removed by the fact that despite the plaintiff having been in agony from Wednesday afternoon onwards notwithstanding receiving injections from his doctor and taking pills, and despite having been in bed for most of Thursday, he was forced to undergo a five or six hour return trip from Junee to Toganmain on Friday. "That Friday is a complete haze to me. But Mr Clarke insisted that I go and fix it because they had to shear on Monday."

46 The second matter to be remembered is that the plaintiff's task in relation to the press was capable of having at least the following phases. It could have had more, but as events fell out it in fact had the following:

(a) to carry out sufficient work to reach the conclusion that if the fault were to be located it would be necessary to work on top of the press;

(b) on seeing the oily nature of the surface on the top of the press, to be given, or otherwise to procure a ladder; or to be given assistance in moving the press to the platform;

(c) to use the ladder or the platform to do sufficient work to diagnose the fault and discover that a damaged part had to be replaced;

(d) to find materials with which to repair the defective part and make the replacement for it; as it happened, that was a task which, the trial judge found, involved "the machining of a part which couldn't be done on site", and necessarily entailed a journey to Junee to do this;

(e) to return to Toganmain in order to complete the carrying out of the repairs.

47 The third matter to be borne in mind is that the plaintiff was not examined or cross-examined on what his actual thought processes at the time were, and what they were would depend to some degree on inference. The plaintiff was questioned to a slightly greater extent about his opinions of a few of the possibilities open to him with the benefit of hindsight, but even this type of factual explication was quite incomplete. It is apparent that while the parties who were adverse in interest to the plaintiff fought the trial in particular ways, no doubt selected as part of a sound exercise of professional judgment, a somewhat different approach to the case has been taken on appeal. That latter approach is in certain respects not well underpinned by testimony, particularly testimony which it was for the defendants to elicit from the plaintiff if they wanted to rely on it.

48 The fourth matter to be remembered is that when the plaintiff arrived on Tuesday 7 January, his plan was to stay at Toganmain until he completed his work, sleeping there for as many nights as necessary; and then to go to his home at Junee before returning for shearing on Monday 13 January 1997. He in fact slept at Toganmain on Tuesday night. Slight though the attractions of the shearers' accommodation at Toganmain may have been, they evidently exceeded those of a five or six hour drive from Junee to Toganmain and back each day in mid summer.

49 The first possibility open to the plaintiff was to wait for Mr McGillivray to fulfil one of his promises. This is not an option which even the first defendant suggested should have been followed. There was no evidence that Mr McGillivray ever fulfilled, or attempted to fulfil, either of them. To have waited for Mr McGillivray might have meant waiting until Monday. The plaintiff was briefly questioned by counsel for the second defendant about why he did not undertake this option:

"Q. Well, you knew when the jackeroo left after you told him what you needed, your understanding was he was either going to give you a - he was going to give you a ladder, some diesel or come back and push it against the wall. But that was your understanding, wasn't it?

A. That was my understanding.

Q. That was the deal --

A. Yes.

Q. - you had struck when you got to the stage of work - deciding to work on the press, you made the decision to go ahead without those things, didn't you?

A. Well, what was I to do? It's a million miles from nowhere.

Q. Well, you had - you could not do the job at all?

A. And what happens then on Monday when they can't shear?

Q. You come back on Friday and do it. Isn't that possible?

A. I suppose it was possible, but unlikely."

The matter was not taken further. Further, it does seem onerous on the plaintiff to have to drive three hours back to Junee on Wednesday, and make a six hour return journey on Friday, when there was no guarantee that Mr McGillivray would have performed his promise by that day. And there would not have been time to finish the job on Friday in view of the fact that the defect which eventually manifested itself required the fashioning of a new part away from Toganmain and the insertion of it at Toganmain.

50 The second possibility was for the plaintiff to drive back to his home at Junee and return with a ladder. On the day of the accident the plaintiff did not get home until 5pm. If he had decided to get the ladder instead of climbing the press, no doubt he would have left Toganmain earlier and driven faster, but it is unlikely that he would have been able to have returned to Toganmain until just before dark, and it seems it would not have been possible for him to do anything on his return in view of the fact that visibility was a problem in the wool shed outside daylight hours. If he left Junee with the ladder early on Thursday morning, it would have taken him three hours to get back to Toganmain, and a further period of time locating the fault. He would then have had to have returned to Junee to manufacture the part which needed to be replaced - there was no evidence that that operation was possible at Toganmain, and a finding of the trial judge against it. He would not have got back to Junee until midday Thursday at the earliest. It took his son most of a day to manufacture the replacement part under his instructions while he was in bed, and no doubt the plaintiff himself could have done it much faster had he been doing it himself while well, but it still would have made it unlikely that he could have got back to Toganmain on Thursday with sufficient daylight to install the part. That meant a further journey on Friday for that purpose.

51 The first defendant submitted that even if these "scenarios" were not exaggerated, there was still ample time to do the work on Friday or Saturday. The plaintiff, however, was not asked about his attitude to Saturday work. In any event the first defendant submitted that the time involved in these "scenarios" was exaggerated, because, it was said, the plaintiff estimated that the whole job would only have taken four or five hours. But that was only an estimate. In view of the difficulties that emerged when the plaintiff began to work on the press and the lack of evidence that the materials with which to make the new part were available at Toganmain, in my opinion the times set out above are not exaggerated. There was in truth only just time to do the work by Friday. Had the plaintiff turned his mind to the question - and he was not asked whether he did, or what the feasibilities of going to Junee for the ladder were - it could not be said to have been an unreasonable decision on his part to move on with the work on the press in the hope of getting it done without inconvenience. Since Mr McGillivray had not been able to tell the plaintiff what the fault was, the plaintiff began the task in ignorance. It might have turned out to be even more serious than it in fact turned out to be. The proposition that the plaintiff should have commenced by incurring the delay involved in getting a ladder from Junee, which in turn added a five or six hour round trip in summer heat to the burdens of a man in late middle age, is not necessarily a reasonable one. A decision on the plaintiff's part to seek to avoid the risks of delay and to avoid that experience would have been understandable if the plaintiff had turned his mind to the possibilities. Though there is no direct evidence on the point, no doubt the reason why the plaintiff planned to sleep at Toganmain was to avoid round trip journeys from Junee to Toganmain in mid summer each day.

52 A further possibility was for the plaintiff to go looking for Mr McGillivray. This was raised by the second defendant in cross-examination of the plaintiff:

"Q. Why didn't you go to find the jackeroo to get the ladder?

A. Like looking for a needle in a haystack. There's about 200,000 acres there. How was I to know where the jackeroo was?

Q. You couldn't have - could you have not just gone down the road to the house - the worker's house just a couple of kilometres down the road?

HIS HONOUR: Station hands' house.

DOOLEY: Station hand's house, thank you, your Honour.

WITNESS: All right, I go down there and I get his wife. He's away at work. She doesn't know a thing so what do I - I am finished up with nothing again, haven't I?

DOOLEY: Q. Well, you could ask whether she had a ladder?

A. They told me righto, so what was I to do."

This possibility was not one advanced by the first defendant. The prospects of it succeeding do not appear to have been sufficient to have made it unreasonable for the plaintiff not to have pursued it.

53 Another possibility was for the plaintiff to have gone home and waited until Monday before returning to work on the press, or alternatively to have returned to work on it on Sunday. The second defendant put these possibilities to the plaintiff:

"Q. Isn't it possible that you could have arrived there with the shearing on the Monday and carried out the repairs?

A. No, it's not.

Q. Why not?

A. For one thing you wouldn't have time.

Q. Why not?

A. Are you going to start at bloody 4 o'clock in the morning to repair the wool press in the dark?

Q. It was operative, wasn't it, the wool press?

A. No, it wasn't operative.

Q. Didn't it work except it wouldn't go back up unless manually operated?

A. Well, you have got twenty shearers there, every time they drop three sheep you have a bale of wool. Three sheep each for twenty shearers you get a bale of wool. You would not have time to fix the wool press. You would have to stop the men.

Q. You could go back on the Sunday, couldn't you, before shearing started?

A. I suppose I could but do you like to work on Sunday?"

By this stage the plaintiff, who, it was noticed by counsel for the first defendant for one, was experiencing pain in the witness box, and who gave evidence over parts of three days, had evidently had enough of barristers. But whether he was irritated or not and whether he was right to be irritated or not, his answers were convincing answers to the criticisms made.

54 Another possibility, suggested by the first defendant, was to drive to Hay or Narrandera and buy a ladder. This Court was told that those towns were three quarters of an hour away. There was no actual evidence that a ladder was available for ready purchase in either place, and the matter was not raised with the plaintiff.

55 Yet another possibility suggested by the first defendant was that the plaintiff should have rung his superiors for their advice. His superiors were based in Dubbo. They were much too far away to be able to provide the plaintiff with any equipment or assistance. This possibility was put by counsel for the second defendant to Mr Clarke, who said that the plaintiff's employers would have been incapable of providing a ladder because of the distance from Dubbo: "all we could tell him to do was to try and get one somewhere". This possibility was not put to the plaintiff.

56 Another possibility was that the plaintiff should have telephoned a representative of the first defendant to require performance by Mr McGillivray of his promises. The plaintiff was not asked about this possibility. There was no evidence that he knew the telephone number of any representative of the first defendant and hence there was no evidence that it was within his power to make an appropriate call.

57 Another possibility, one advanced by the first defendant, was that the plaintiff should have driven about five kilometres from the shearing shed to the building where Mr McGillivray believed there was a ladder. It is not clear that the plaintiff knew of the existence of the building five kilometres away, or whether he shared Mr McGillivray's belief that it contained a ladder. He was not asked about these things.

58 Finally, the first defendant suggested that if the plaintiff had waited sufficient people would have arrived to move the press to the platform, whether they had been brought there by Mr McGillivray or not. It is true that Mr Wragge, livestock manager of the first defendant, gave evidence supportive of the view that in the days before shearing was to begin on Monday 13 January 1997, there might well have been employees of the first defendant near the shearing shed. He gave the following evidence to the trial judge:

"HIS HONOUR: Q. Before the shearing actually starts at Toganmain in particular - like, say, the week leading up to the shearing starting, are there a lot of - are there likely to be a lot of Toganmain employees around the shearing shed area?

A. We only actually employ seven people ourselves full-time. There was a group of young jackeroos floating around. There is a lot of activity leading up to sharing with sheep movements and things like that. Cleaning up around the shed. Getting ready for shearers to move in and the quarters, making beds, et cetera. Yes, there could have been people floating around at that time, in and out, sort of, during the day possibly.

Q. They were likely to be sort of casual jackeroos more than --

A. They were jackeroos employed by the company but they were what we called the mobile squad. They would travel round from property to property doing jobs if we were busy."

59 In re-examination he said:

"Q. His Honour asked you whether there would be people around the wool shed prior to shearing. And I think you said that people, there would be stock movements and maybe jackeroos in and out as it were?

A. Yes, that's right, there could have been.

Q. There could be people making up beds in the shearing quarters?

A. Yes.

Q. Would that be done a week or five days before shearing started?

A. A lot depends on our programme. We have other things obviously happening at the time or could be happening at the time with cattle and things like that or whatever."

This evidence is vague as to the quantity of people, vague as to the time when they were likely to be there, and vague as to the possibility of their being there in the period 8-12 January 1997. Mr Wragge couched his evidence in the language of possibility only. Further, though the plaintiff was not asked why he did not implement this possibility, a reasonable answer would have been that he could not have gambled by waiting until the last moment. For example, if he had waited until Friday, there would have been no time to return to Junee to manufacture the new part before the weekend.

60 If all these possibilities had been put to the trial judge, a key question would have been whether it would have been right to treat any of them as being so clearly more effective and likely than what the plaintiff actually did as to make what he did not reasonably foreseeable. The trial judge was obviously of the view that the possibilities of searching for assistance, or driving to Junee or waiting until 13 January were not more effective and likely than what he actually did. In my opinion the other possibilities were not more effective and likely either. The plaintiff was a man whose character and conduct made a deep and favourable impression on the trial judge. He had worked hard all his life. The trial judge said: "The plaintiff is ... a very simple, straightforward, honest man of great integrity and an excellent worker who would not like to see his employer or the client let down in any way. He would see it as his duty to complete a requested task if humanly possible without regard to personal inconvenience and perhaps without regard to his own welfare. He was still experiencing the aftermath of his 1995 severe back injury. The plaintiff was well-known to all the defendants." He attempted to carry out what his employers requested of him in the days after he had suffered his painful injury at great cost to his own comfort. He was a man who had given society much more than it had given him. Even while he was incapacitated from work, he and his wife cared for five foster children at home (three thirteen year olds, a nine year old and an eighteen month old). A man with this stoical and conscientious concern with advancing the interests of others was very likely to move straight onto the task of detecting and repairing whatever the fault was in the press despite Mr McGillivray's failure to give him the assistance requested. It was reasonably foreseeable that a man with the capacity to work alone without direction which the plaintiff had would have been likely to have become lost in concentration on the difficulties and rhythms of the task without paying an entirely self-interested regard to the dangers involved in one particular aspect of it.

61 In my opinion it was reasonably foreseeable that the plaintiff would engage in the conduct which led to his injury.

The Sunbeam press

62 The first defendant also argued that if the plaintiff had injured himself while repairing the Sunbeam press, which Mr McGillivray had not asked him to repair, he would not have recovered against the first defendant, and that position could not be altered in relation to an injury suffered while repairing the MacLodge press merely by reason of the fact that Mr McGillivray had mentioned that it had a problem, though not one whose nature he knew. It is unnecessary to consider what the plaintiff's rights would have been in relation to the hypothesis of an injury suffered on the Sunbeam press, which was apparently of a quite different kind from the MacLodge press. The only relevant question is what the plaintiff's rights were in the precise circumstances surrounding his actual injury.

The second defendant's arguments on appeal

63 It was perceived by the second defendant to be indirectly in its interest, while denying that it was liable as one of the employers, to ensure that the trial judge's conclusions adverse to the first defendant remained without successful challenge. The second defendant advanced arguments which were in some respects different from those advanced by the plaintiff and those accepted by the trial judge. They offer a useful cross-check against those arguments and the arguments set out above.

64 The arguments centred on the notions of proximity, control, knowledge and vulnerability.

65 First, the second defendant contended that there was proximity between the plaintiff and the first defendant. In Sullivan v Moody [2001] HCA 59; (2001) 75 ALJR 1570 at [48], Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said that no-one had ever succeeded in capturing in a precise formula:

"a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of a kind necessary for actionable negligence. The formula is not `proximity'. Notwithstanding the centrality of that concept, for more than a century, in this area of discourse, and despite some later decisions in this Court which emphasised that centrality, it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established. It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited."

However, the second defendant here gave focus to the inquiry by pointing to the fact that the first defendant was an owner and occupier of the land, and an owner and controller of the machinery; the plaintiff was a lawful entrant on the land on the first defendant's business; the plaintiff was expressly requested to remedy a fault, he expressly requested particular assistance in that regard, the first defendant expressly agreed to provide it and the plaintiff endeavoured to remedy the fault.

66 Secondly, the first defendant had control - of the shed, of the press, of a suitable ladder five kilometres away, and of sufficient employees to move the press as requested in a short period of time.

67 Thirdly, the first defendant had knowledge of the fault in the press, knowledge of the need for it to be fixed, knowledge that the plaintiff was going to try to fix it, knowledge that the press was slippery and dangerous, and knowledge of the need either for a ladder or for the press to be moved: and none of this knowledge was merely constructive, it was all actual.

68 Fourthly, the plaintiff was vulnerable to the dangers of the particular task. The first defendant knew about the dangers and knew about the plaintiff's vulnerability. The plaintiff told the first defendant what he needed. He was alone. He had no authority over the first defendant's employees and no means of locating or contacting them. His employers could not assist him. He had to perform the task or run the risk of delays to shearing which would be damaging both to the first defendant and to his employers. The first defendant knew, but he did not, that there was a suitable ladder five kilometres away. The first defendant knew, but he did not, how to mobilise sufficient workers to move the press.

69 In selecting "proximity", "control", "knowledge" and "vulnerability" as organising ideas, the second defendant was appealing to ideas which in the case of "proximity" have had significance for past High Court justices, and in the case of the other three ideas have significance for some present High Court justices. The analysis offered by the second defendant does suggest that it was not erroneous for the trial judge to find that the first defendant owed the plaintiff a duty of care and breached it.

Duty of occupier to specialist independent contractor

70 In the course of the argument there was some discussion of the extent to which an occupier like the first defendant could be liable to a specialist independent contractor. Is a householder liable to an electrician who is injured while repairing some wires? This case is to be decided on its own facts. It did not concern a householder. It concerned a shearing overseer sent by a shearing contractor to remedy the shearing equipment in the shed for shearing. When the shearing overseer arrived, the senior employee of the occupier, who ran very large pastoral properties and was about to present very large numbers of sheep for shearing, asked him to fix the press. He told the employee what he needed, and the employee agreed to provide what he said he needed. All these circumstances make the case very remote from the position of householder-contractor.

71 The first defendant's appeal in relation to liability fails.

Causation

72 The first defendant's argument that the plaintiff failed to establish causation because it was not reasonably foreseeable that he would do what he did is invalid for reasons already given.

Contributory negligence

73 The first defendant's appeal in relation to contributory negligence should be dismissed. There was no lack of regard on the part of the plaintiff for his own safety in some aspects of the work he did on the MacLodge press. The only unsafe aspect of the work he did was to work on the oily monkey. Given his conscientiousness, the time pressures he was under, and his dedication to the interests of his employers and to the first defendant, it was inevitable that he would have started work on the press. Once he began work on the press it was understandable that he became absorbed in the detailed difficulties of attempting to solve the problem. His conduct in deciding to climb up the press and work on the oily roof was momentary inattention of a type that falls outside the doctrine of contributory negligence.

The liability of the employers

74 The employers conceded that they owed the plaintiff a duty of care, but denied that they were in breach of it.

75 The plaintiff submitted that the only tools which he had were those he had taken with him, and that the employers had provided no equipment. He had never taken a ladder to a shearing shed, whether Toganmain or any other shed before. Because he had no ladder he had not finished work on the overhead belts driving the shearers' hand pieces. The first defendant criticised the trial judge for saying that there was a qualitative difference between that work and work on the press, making the stepladder suitable for the former but not the latter. The first defendant submitted that the second and third defendants should have supplied the plaintiff with a ladder to work on the shearing gear. They expected the plaintiff to do any work necessary to get the shearing equipment and the wool presses fully operational before shearing. They were experts at what was necessary to be done if the shed were to be ready for shearing; the first defendant was not. It was in their interest to ensure that the shearing ran smoothly, because delays would cost them money.

76 Attention came to be focused on the state of knowledge of Mr Clarke, managing director of the third defendant, and the plaintiff. Mr Clarke was aware that the overhead shearing gear needed repairs and said he told the plaintiff to check the shearing gear, but he could not recall telling the plaintiff to check the wool presses, though he suspected that the plaintiff would check everything.

77 The plaintiff did not give evidence that he had been told to fix the wool presses. He said it was not normally part of his duties to do so.

78 The trial judge found that Mr Clarke and the employees of the first defendant expected the plaintiff to have the skills necessary to repair both shearing equipment and wool presses.

79 However, the evidence is against the proposition that the employers had notice of the need to repair the wool press and in particular the need for a long ladder. Mr McGillivray's request to the plaintiff was thus one which was not expected either by the plaintiff or by his employers.

80 The plaintiff was a man of great experience in overseeing and preparing for shearing operations. He had been at Toganmain before. Mr Clarke said that the plaintiff's abilities were equal or superior to his own in those fields. Though the plaintiff had a lot of experience on machinery, and worked on preparing presses in the past, he did not regularly do so (for example, he had not done so in the previous shearing at that shed in November 1996) and he did not expect to do so on this occasion until requested to. He worked on the Sunbeam press without instructions to do so, but it did not require additional equipment, and his initiative was characteristic of his desire to advance the interests of the employers and the first defendant by fixing whatever deficiencies he noticed.

81 In an ordinary case where it is alleged that an employer breached a duty of care to an employee, the employer is in a position of superior knowledge and power and is in a better position to assess by inspection and other preliminary consideration what risks may affect the employees, and a better position of power to take reasonable precautions against those risks. Here, however, neither the employers nor the plaintiff were aware before he arrived that he would be asked to face the risk of repairing the press. It was not open to the employers to have inspected the shed in advance. The relevant superior, Mr Clarke, was in Dubbo, many hours' drive away. And if the employers had desired to inspect the shed, the person who would have done so would have been the plaintiff.

82 Since both the plaintiff and the employers were focused on the need to repair the shearing gear, since the plaintiff was the key representative of the employers, and since he had appropriate skills and length of experience to grasp the dimensions of any particular problem he encountered, the employers were not in breach of duty in permitting him to work without sending out any other employee to ensure that conditions were reasonably safe. An inspection by Mr Clarke, even leaving aside his geographical remoteness from the shed, would have been pointless in view of the equal or superior knowledge which the plaintiff possessed. In all the circumstances the plaintiff and the first defendant did not demonstrate that the employers should and could have done more than they did.

The first defendant's attack on quantum of damages

83 The first defendant submitted that in 1995 the plaintiff had suffered a severe back injury which caused him to undergo a laminectomy. He was off work for about seven months. Despite a good initial recovery, his condition began to deteriorate and he suffered bad pain in his back and leg. The first defendant pointed to the fact that on 17 April 1996 Dr Isbister had concluded that the plaintiff was no longer fit for shearing nor fit for any job requiring him to drive long distances. The trial judge allowed the plaintiff full recovery of wage loss for the period between the accident and the trial (less a six month period in which the plaintiff had heart surgery following a myocardial infarction). He allowed full recovery for the future to the age of sixty-five less twenty-five percent for contingencies (as distinct from the conventional fifteen percent). The first defendant submitted that a fifty percent or sixty percent deduction would have been appropriate. The first defendant did not dispute that the plaintiff was now unfit for work, and did not dispute the sincerity of his complaints.

84 The trial judge said that of all the doctors he preferred Dr Nicholls, who had been the plaintiff's treating doctor since 9 March 1995. The first defendant did not advance any reasons why that preference was erroneous.

85 On 30 January 1996 Dr Nicholls concluded:

"The patient has been treated for a major lumbar disc prolapse, the development of the problem being consistent with the history as given. Satisfactory relief of his symptoms were achieved with surgical treatment and to the best of my knowledge the patient has continued with his normal work since September 1995.

In the longer term the patient is at risk of recurrent attacks of back pain often with minor trauma and it would be unwise for him to attempt to carry out any heavy work or to attempt shearing. However with this proviso I think he would be regarded as fit to continue with his normal work in the long term. It is unlikely that further surgical treatment will be required though there is a definite possibility of some increase in his degree of back pain over a period of years.

I would assess the percentage loss of back function as a result of this injury at about 20%. There is not significant loss of function in the left leg."

86 On 23 November 1999 Dr Nicholls said:

"The patient subsequently consulted me on 29 April, 1996 because of some progressive deterioration in the degree of back pain and particularly in his left leg pain but at that stage he was still carrying out light work, wool-classing and doing maintenance on shearing shed equipment. It was considered that his ongoing symptoms were those of degenerative spinal disease and nerve root fibrosis.

The patient subsequently was referred to me again on 28 January 1997. He told me that the leg pain in particular had become more troublesome during 1996 but that earlier that month (probably on 8 January 1997) he sustained a significant aggravation of both the back and leg pain when he slipped from a wool press he was servicing."

He concluded that the January 1997 accident had occasioned "a significant aggravation" and that the plaintiff was permanently unfit for work.

87 On 10 April 2001 Dr Nicholls repeated his opinions, save for saying that the plaintiff had achieved a good result from his heart surgery.

88 The trial judge said:

"Having regard to the specialist opinions referred to above and the plaintiff's evidence, I am satisfied that the incident of 8 January 1997 caused a substantial increase in the plaintiff's symptomatology. I am satisfied that that symptomatology has continued to the present day and the plaintiff appeared to me to be in obvious and significant pain during the course of his evidence. That situation is unlikely to improve and more likely to deteriorate further although it has remained substantially the same for the last twelve months or so.

The plaintiff's heart condition has provided a complicating factor. He says that, apart from certain memory loss as a result of his bypass operation, his heart situation has returned to normal and he feels that his heart condition would not prevent him returning to work. There is no evidence from his heart specialist and only passing comment is made as to the situation by Dr Nichols and Dr Perrott. The plaintiff was incapacitated for six months as a result of his heart condition and operation.

I am also satisfied that, although the plaintiff had some continuing symptoms as a result of the 1995 incident, they were of a lesser degree than those he now experiences and were not preventing him from returning to work.

Physically he was not as incapacitated for any form of work although I am satisfied that he avoided certain activities such as penning sheep and extensive bending over tables which were productive of back pain. I feel that Dr Nield accurately described his complaints certainly as at May 1996 and I accept the plaintiff's evidence that his left leg symptoms of numbness et cetera pre-January 1997 were a nuisance rather than incapacitating.

It is also apparent that he did continue to experience low level back pain. Whilst the plaintiff's condition pre-1997 may have deteriorated to some degree and may have resulted in restrictions on heavy activities, having regard to Dr Nichols and White I see no reason why the plaintiff, having regard to his qualifications and experience would not have been able to keep working generally within his existing environment at least until he reached the age of 65.

In my view the plaintiff is now, having regard to the preponderance of medical opinion, unfit for work because of his back injury. That unfitness relates solely to the injury sustained by the plaintiff on 8 January 1997. The plaintiff, however, also now has a heart condition which kept him out of the potential work force for six months at least.

There is no evidence before me to suggest that his bypass surgery or its consequences would have restricted his working activities any more than his back did. Clearly the fact of this illness occurring is a factor to be considered for the future but I have nothing before me that would justifiably allow me to consider his heart condition as incapacitating and it's not appropriate for me to operate on the basis of what I might speculate the situation to be."

89 It is not clear that the first defendant argued that the plaintiff's heart trouble should have been given more weight than it correctly was given in relation to pre trial economic loss. The risk of a man in late middle age having heart trouble is a risk which the conventional fifteen percent figure for vicissitudes is intended to allow for.

90 There is no doubt that after the 1995 accident the plaintiff ceased to be able to shear. But there was a range of work which he had been doing and which the evidence in this case shows to have been available for him, a capable and long-serving employee of a trusting employer. Moving from the most stressful work to the least stressful, there was shearing, penning sheep, wool classing, and "organising shearing teams" and other shed activities. Before the 1997 accident, Dr Nicholls thought that shearing should not be attempted; in any event the plaintiff had not been personally engaged in shearing for some time. Dr Nicholls also thought "heavy work" should not be attempted, but that otherwise the plaintiff was fit "to continue with his normal work in the long term". The plaintiff was by that stage not doing much penning work. He worked only as a wool classer and as a overseer, running the teams - "that meant you had to gather up the men for a start. You were responsible for the whole operation of the shearers". This organising work did not necessarily call for heavy physical work. The plaintiff under cross-examination by the second defendant described his position just before the January 1997 accident thus:

"Q. You see what I am suggesting to you is that you had quite significant back and left leg problems before this accident in January of '97?

A. They weren't significant enough to stop me working.

Q. No, but they were fairly close to stopping you working, I suggest to you?

A. Well, I think your suggestion's wrong.

Q. What I am suggesting is they have taken you from a position of just being able to manage your work to not being able to manage your work?

A. I could still manage me work all right.

Q. Well --

A. I was still working very hard actually then."

91 In all the circumstances it has not been shown that the trial judge erred in failing to allow a greater figure for vicissitudes than twenty-five percent.

Orders

92 The consequence of the above reasoning is that the appeal should be dismissed. The first respondent (plaintiff) filed a cross-appeal: it was defensive in the sense that it only operated if the appeal were allowed, and its goal was to obtain judgment against the employers in substitution for the judgment against the first defendant. No time was taken up additional to that taken up by the appellant in its unsuccessful arguments that the employers should have been held liable. It is not appropriate to make any costs order adverse to the plaintiff in relation to it.

93 The following orders are proposed:

1. The appeal and cross-appeal are dismissed.

2. The appellant is to pay the costs of the respondents (including the costs of the cross-appellant's cross-appeal).

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LAST UPDATED: 23/09/2002