Aurosseau, Allan James v Commonwealth of Australia

[1998] FCA 1724

FEDERAL COURT OF AUSTRALIA

NEGLIGENCE – personal injury – liability of employer – standard of care – plaintiff injured back after backrest on swivel chair collapsed – whether defendant knew or ought to have known of the risk of backrest slipping – whether lack of reasonable care by defendant – whether contributory negligence by plaintiff.

VICARIOUS LIABILITY – negligence – personal injury – liability of employer – plaintiff further injured back while lifting furniture at work – colleague assisting plaintiff suddenly removed assistance – whether act of colleague negligent – whether contributory negligence by plaintiff.

NEGLIGENCE – evidence of – relevance and admissibility – whether evidence properly assessed at trial – whether trial judge erred in rejecting opinion evidence – Evidence Act 1995 (Cth), ss 76, 79, 135(b).

Evidence Act 1995 (Cth), ss 76, 79, 135(b)

Warren v Coombes (1979) 142 CLR 531, applied
John William Dowse v Concrete Holland Joint Venture & Another (Supreme Court of the Australian Capital Territory, Higgins J, 31 August 1993, unreported), considered

ALLAN JAMES AUROUSSEAU v COMMONWEALTH OF AUSTRALIA
AG 31 of 1998

HIGGINS, LEHANE AND WEINBERG JJ
CANBERRA
18 DECEMBER 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA          )
  )  AG 31 of 1998
AUSTRALIAN CAPITAL TERRITORY                   )
  )
DISTRICT REGISTRY  )

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:          ALLAN JAMES AUROUSSEAU
  APPELLANT

AND:  COMMONWEALTH OF AUSTRALIA
  RESPONDENT

JUDGES:  HIGGINS, LEHANE AND WEINBERG JJ
DATE OF ORDER:            18 DECEMBER 1998
WHERE MADE:                CANBERRA

THE COURT ORDERS THAT:

1. The orders of the Supreme Court made on 19 March 1998 are set aside.

1. Judgment is to be entered for the appellant for damages to be assessed consistently with the reasons for judgment of this Court.

1. The action is remitted to the Supreme Court for assessment of damages.

1. The respondent pay the appellant’s costs of the appeal.

1. The respondent pay one half of the appellant’s costs of the proceeding up to and including entry of orders dated 19 March 1998.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA          )
  )  AG 31 of 1998
AUSTRALIAN CAPITAL TERRITORY                   )
  )
DISTRICT REGISTRY  )

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:          ALLAN JAMES AUROUSSEAU

Appellant

AND:  COMMONWEALTH OF AUSTRALIA

Respondent

JUDGES:                  HIGGINS, LEHANE AND WEINBERG JJ
DATE:  18 DECEMBER 1998
PLACE:  CANBERRA

REASONS FOR JUDGMENT

HIGGINS J:

This is an appeal from a decision of Gallop J made on 19 March 1998.  The appellant had brought proceedings claiming damages for personal injuries allegedly sustained by him in the course of his employment by the respondent.  It was necessary for the appellant to prove that the injuries were suffered as a result of the negligence of the respondent.  His Honour, the trial judge, was not so satisfied and entered judgment for the respondent accordingly.

The primary facts were not contested.  As his Honour noted, there were two accidents at work in which the appellant suffered injury.  The first was on 18 September 1986, the second on 12 May 1988.  The appellant was employed in the Department of Housing and Construction (subsequently Works Australia) as an engineering draftsman.

He commenced employment with the respondent in May 1986.  He was assigned to a work station.  It included an old-fashioned drafter’s swivel chair.  The feature of it which is relevant to the first accident was the backrest.  It was of a kind that had two posts passing through a bracket, held in place by a clamp which could be tightened or loosened by a screw attached to a knob on the outer side of the backrest.

The plaintiff explained, without contradiction, that he had, when first assigned the chair, adjusted the backrest and tightened it so as to secure it in place.  He did have a habit of leaning back and stretching.  That was not suggested to be an unreasonable action on his part.  He had between May and 18 September 1986 performed this activity several times daily.

As the learned trial judge found, on 18 September 1986 the appellant stretched his upper body as usual, leaning back onto the backrest.  Instead of supporting him as it had previously done, the backrest “collapsed” causing the appellant to flex his back violently.  That caused injury to the plaintiff’s back.

The appellant, his Honour accepted, had complained about the chair previously.  He had not, however, had cause previously to doubt the security of the backrest mechanism.  His complaint was that the chair was “ancient”, indeed, outmoded.  Newer hydraulic chairs were available which, incidentally, did not rely on a clamp mechanism for securing the backrest.

There was an issue as to whether the defendant knew or ought to have known of the risk of the backrest slipping.  An injury report by Mr N A Wheaton, a supervisor of the plaintiff, notes that the injury suffered by the appellant was, in his view, a result of “a defect in departmental materials or appliances”.  However, he added the comment:

“Please refer to attached report on PD Structural Accommodation to RM (P) on 14 July 1986 in which the unsatisfactory condition of the chairs used by both engineers and draftsmen is identified.  I hope some action will ensue from this accident.”

PD = Projects Division

The attached report was dated 14 July 1986.  It referred to concerns as to chairs in the following terms, requesting new equipment:

(a)Hydraulic chair

The structural engineer (sic) spend prolonged hours preparing written documents (specifications, calculations, sketches and reports) and it is equally as important that they have proper seating as it is for typists and computer operators.  The antiquated chairs currently on issue are not satisfactory.”

It may be that Mr Wheaton had concerns as to the safety of the “antiquated” chairs but, if he did, it was not, as counsel for the respondent noted, expressed in either of those documents.

There was some evidence also from Mr Gary Robert Wilson, an officer who worked in the same general area as the appellant.  He was familiar with the type of chair used by the appellant.  He was asked by counsel for the appellant:

“Did you notice anything about the mechanism which enabled the back to be raised and lowered?…You could loosen it and tighten it and that’s how it operated.

Yes.  And did that system enable the back to remain in a fixed position?…Most of the time.  They sometimes did slip if you leant sometimes.

HIS HONOUR: Let me hear that answer again?…Most of the time it worked all right, but sometimes it could slip if you leant on it.”

A report from Dr Neil Adams, a person who described his area of specialised knowledge as “Analytic Product and Legal Liability Evaluation”, was tendered to his Honour.  The tender was rejected.  However, a diagram of the backrest mechanism prepared by Dr Adams was admitted in evidence.

Evidence also was given by Mr Dennis George Field.  He had been an officer of the Department of Housing and Construction and worked with the appellant.  He had used the same kind of chair which had caused the plaintiff’s injury.

He told of his experiences using such chairs.

He was asked:

“Now during the time that you were using the chairs did you notice anything about the way in which the backrest behaved while it was in use?…Well, it wasn’t uncommon for the back rest to fall down by itself, especially after moving the chair because the main method of moving the chair for me was just to pull the chair by the backrest out of the way to get towards the – well, to get it out of the way and quite often it would just start slipping down.”

He would frequently tighten the knurled nut at the back of the chair to try to prevent the backrest dropping.  He was then asked:

“And once you’d done that, what did you observe about the behaviour of the backrest on the chair?

…Well, I had to do it on (sic) frequently anyway, so obviously it never held securely.”

In his judgment, his Honour, correctly in my view, pointed out that Mr Wheaton’s report did not identify any relevant defect in the kind of chair used by the appellant.  His Honour concluded:

“There is simply no evidence that failing to maintain the chair caused the accident and in my assessment there is nothing about the defendant’s conduct which exposed the plaintiff to a risk of injury of which it knew or ought to have known.”

Counsel for the appellant submitted that in so finding his Honour appeared to have overlooked the evidence of Messrs Wilson and Field.  They identified, if their evidence was accepted, a characteristic of the kind of chair given to the plaintiff to use; that its backrest would drop unexpectedly from time to time if leaned on, and possibly, even spontaneously.  The mere fact it might not happen frequently does not mean that the risk of such an event occurring could be lightly discounted.  The plaintiff was neither given a replacement chair nor warned not to place pressure of the kind he habitually did upon the back of his chair.

Dr Adams’ report was to similar effect, though it may be that it does no more than state the obvious.

The evidence of Messrs Wilson and Field was not challenged.  Mr Wheaton’s evidence shows that the need to replace the “antiquated” chairs was drawn to the attention of responsible officers of the respondent.  It seems apparent that his Honour did not advert to the evidence as to the propensity for the chairs in question to perform as the plaintiff’s chair did.

The duty of care owed by the defendant was not challenged.  The hazard posed by the chairs, given the accustomed behaviour of the plaintiff in leaning back upon the backrest, even forcefully, was obvious.  The means for eliminating or minimising the risk inherent in sudden collapse of the height of the backrest were easily implemented.  Even changing the chairs for those designed not to perform as this chair did was not shown to be, nor does it appear to have been, impracticable.  Mr Wheaton clearly did not think it was impracticable to replace the chairs.

It is not correct to assert, as the respondent’s submissions did, that the appellant did not complain of inadequate instruction or warning as to the use and maintenance of the chair.  The appellant said there was none given.  He was corroborated in that respect by the evidence of his work colleagues.

In my view, those matters establish a lack of reasonable care on the part of the respondent.  His Honour’s conclusion to the contrary is not based on the credibility of witnesses or any discretionary judgment.  Thus, if this Court is satisfied that it is in error, it must so find – see Warren v Coombes (1979) 142 CLR 531. Error does, in my view, appear, in that, whilst endeavouring to expedite the finalisation of the matter by giving an ex tempore decision, his Honour appears to have overlooked the evidence of the plaintiff’s work colleagues which indicated that the defect in the chairs of the kind used by the plaintiff was or ought to have been known to the respondent.

In my view, his Honour’s judgment should be set aside.  It is unnecessary to determine whether, as to this cause of action, Dr Adams’ report should have been wholly rejected.  Liability should be found in favour of the appellant for damages to be assessed in relation to the accident of 18 September 1986.

Contributory Negligence

Although he found that the respondent had not been guilty of negligence his Honour also expressed the view that:

“…the plaintiff was guilty of contributory negligence in failing to ensure that the clamp on the back of the seat was secure when placing his weight against the top of the back.”

Whilst it is true that Mr Field had found it necessary frequently to tighten the clamp on the backrest of his chair, the plaintiff had not previously found it necessary to do so, though he had tightened it, he said, possibly three times.  He recalled one occasion only with any certainty.

It does not seem to me that there was any occasion for the appellant to have realised that there was a risk of injury inherent in what he did.  So far as more frequent tightening of the clamp is concerned, it was something his employer and, indeed Mr Field, a fellow employee, could have drawn to his attention.  No one did.

I do not believe that it was open to his Honour to have found contributory negligence in relation to this accident.  I would not so find.

The lifting accident

On 12 May 1988 the appellant took part in the reorganisation of furniture within his office.  It was, it seems, necessary to move, inter alia, some filing cabinets which contained plans.

His Honour found that each cabinet weighed about 100kg in weight.  They were 600-700mm in height and were placed in a stack, one on top of the other.  Four officers including the appellant lifted and transported each cabinet.  The first was successfully placed in position.  The second was similarly transported.  However, at the point where it was to be lifted onto the top of the other, the two officers at the end opposite the appellant appeared to be experiencing difficulties.

The officer sharing the burden with the appellant, Mr George Diamond, observing this, said that he had to “go and help Gary”, a reference to Mr Gary Wilson, a fellow officer holding up one of the opposite ends.

On his own account, which his Honour was entitled to accept, he thus left the appellant to bear unaided half of the weight of the cabinet.  The weight would be greater than that if, as seems likely, the other end was being elevated relative to the end supported by the plaintiff.

The appellant said that he was not warned that Mr Diamond was leaving him to take the full load at his end.  His Honour did not doubt the honesty of the appellant’s evidence but he was, nevertheless, persuaded that Mr Diamond had spoken as he said he did.

Taking that weight did cause further injury to the plaintiff’s back.  He yelled out to Mr Diamond to come back, which the latter then did.  However, the plaintiff could do no further lifting.

If taking approximately half the weight of the cabinet was more than an adult male could reasonably be expected to bear, then Mr Diamond was guilty of a casual act of negligence for which the employer is vicariously liable.  His Honour, however, treated it as a situation in which such injury was likely only if weight was suddenly and unexpectedly transferred.

That finding is not supported by the evidence of the plaintiff that the end was “just too heavy for me”.  Further, he was in fact injured.  That was not suggested to be because of some inherent weakness in his back, though there had been the injury in 1986.  He did not claim that there was a sudden transfer of weight such as might arise if Mr Diamond had suddenly lost his grip.

The decision to move the cabinets was that of the four officers concerned.  The appellant was not in charge.  Nor, indeed, were any of the other three.  If it was an unwarranted risk for the cabinet to be moved as it was, then all shared equally in creating that risk.  However, the risk of injury arose, apparently, only if one officer was to let go of his corner of the cabinet, leaving one officer to bear half the weight of it alone at that end or more than that if the cabinet was tilted.

The plaintiff also agreed that the drawers of the cabinet were removable.  There were six or eight drawers, he thought.  The photographs in evidence showed six drawer cabinets.  He was asked by counsel for the defendant whether it was practicable to remove the drawers.

“And I take it that there was no reason prior to carrying this cabinet why you couldn’t remove the drawers of the cabinet?…No reason apart from the fact that the plans are in a pretty big mess and its very awkward to reorganise them all, very time consuming.”

From that it would be assumed that drawers had not been removed to lighten the load.  If so, it may be that that was a reasonable judgment in the circumstances.  The plaintiff was not challenged on that question.

There was, however, further evidence on the matter.  It came from Mr Wilson.  It was suggested to him by counsel for the defendant in cross-examination:

“The one that you lifted with Mr Aurousseau, did it have two or three of the drawers out of it?…We used to move the drawers out, as a matter of course, because there was a fair bit of weight so we moved them out to lighten the whole cabinet.”

And are you able to make any estimate of the weight of the cabinet you were lifting with Mr Aurousseau?…I’d be guessing, they’d be rough, maybe 150kgs.

Was that with or without the drawers?…I’d say without, it’s a fair while ago now but we couldn’t lift them with the drawers but I think four of us without the drawers it may be a rough weight.”

Mr Field, due to a prior back injury, had not participated in the movement of the cabinets.  He observed the incident in question.  He said:

“Well, I basically remember.  What I remember of it, seeing it was such a long time ago, was that when they were trying to put it up instead of it keeping on going up it was starting to slide back down off the unit that it was on with people pushing and saying that there was problems but I obviously wasn’t assisting at the time because of my condition but I felt that I had to go over and do something.

From my sort of general recollection of it at the moment is that one of the persons, and I think I remember but I don’t know exactly if I’m right, but one of them was not able to continue holding one end of the cabinet and it started to slide so therefore if it was allowed to slide any further it would have actually gained some momentum which would have been catastrophic.”

This version of events was not referred to by his Honour in his judgment.  It is consistent with the plaintiff being left with an unsustainable load.

The only other account came from Mr George Diamond.

He recalled moving the second cabinet.  He was on the same end as the appellant.  Mr Wilson and another officer were on the other end.  He noticed Mr Wilson having trouble positioning the end he was carrying:

“…when we were about to put it on top of a similar item, Gary Wilson, who was on the other end, was having difficulty because he was the first one up against the object.  He needed some assistance.”

When you noticed that Mr Wilson was having trouble, what did you do?…I said to them, “Look, I’ll have to help Gary” because he had to position his end first on top of the existing cabinet.

So what did you do?…So, I went to his end to help him.”

He was aware, he said, that there was no one able to replace him at the appellant’s end.  He was not asked about the dimensions or weight of the cabinet nor if the drawers were in or out.

Mr Wheaton reported also on this incident.  He noted “can’t avoid shifting our own furniture on occasions”.

His Honour, whilst accepting that Mr Diamond spoke as he stated he did before leaving to assist Mr Wilson, also accepted that the plaintiff had found the burden too great and called for Mr Diamond to come back.  He then did so.

His Honour referred to the filing cabinet in question as weighing “about 100 kilograms in weight”.  That was alleged in the Statement of Claim.

There had been a report from Dr Neil Adams.  Only page eight of it was received in evidence concerning the map/plan cabinets.  It was accepted as indicative of the dimensions of the kind of cabinet used.  There is a reference to an estimate made of the weight of such a cabinet at page ten of that report. He would have given evidence that:

“…the lifting effort required to raise or support one end of a cabinet such as that [being that identified by the appellant and photographed by Dr Adams] would have been at least 100kg.”

In my view, that evidence was relevant and admissible.  It is not clear, however, whether his Honour’s attention was ever drawn to such portions of Dr Adams’ report which were properly admissible other than exhibits nine (diagram of chair clamp) and ten (photograph of cabinets).

The only evidence his Honour did have of the weight the plaintiff had to bear was, therefore, to be deduced from Mr Wilson’s evidence.  It is not clear whether his Honour accepted or rejected that evidence or what was otherwise the basis upon which he found the weight of the cabinet - which he apparently assumed included the drawers - to have been about 100kg.

That evidence would have supported a conclusion that the plaintiff had to bear about 75kg by himself.  That weight would self-evidently be excessive for an adult male of ordinary strength to bear, even if the load had not been transferred suddenly.

However, there was also evidence, with which his Honour did not deal, from Mr Field.  That indicates an even more stressful situation from the plaintiff’s perspective.  His description is of the load slipping back towards the appellant.  His Honour expressly accepted that Mr Field did intervene, despite his own physical condition, to avoid a “catastrophic” event.  That was evidence that a “catastrophic event” was otherwise imminent.  The cause and consequence of that potentially “catastrophic event” was not a matter with which his Honour dealt.

Even apart from the rejection of Dr Adams’ report, part of which I consider to have been admissible, the remaining evidence did support the view that the plaintiff had been faced with the assumption of an excessive load in physically stressful circumstances.

It is true he was not ordered to take part in the move.  However, the employer does not avoid liability merely because the employee had volunteered to assist in furthering the employer’s interests.  John William Dowse v Concrete Holland Joint Venture & Another (Supreme Court of the Australian Capital Territory, Higgins J, 31 August 1993, unreported) is an example of that.

It follows that his Honour’s conclusion that there was no negligence cannot be supported without further findings being made as to the weight of the cabinet and the circumstances existing at the time Mr Diamond let go of it until the time he resumed his former position.  His Honour did not make findings on those issues.  The evidence of Dr Adams as to the weight of the cabinet should also have been admitted.  Even absent that evidence, the finding that the total weight of the cabinet was 100kgs only is not in accordance with the undisputed evidence.

I would set aside the finding that the respondent was not negligent but would refer the issue back to the Supreme Court for re-trial as of that issue.

Contributory negligence

His Honour was of the view that the plaintiff had been contributorily negligent in not lightening the load to be carried by removing the drawers.  However, the evidence as to removal of drawers was by no means clear.

Mr Wilson recollected that drawers had been removed.  His Honour did not indicate that he rejected that evidence.  Had Mr Adams’ estimate of weight of one end of the cabinet been accepted, it would imply that a full cabinet would weigh more than 200kg.  If the weight of the cabinet being actually moved was as Mr Wilson estimated it, then it would be consistent with some drawers at least having been removed.

In any event, even if it was open to find contributory negligence, it was a joint decision to move the cabinets.  It was Mr Diamond’s change of plan that caused the injury.  I would not have thought that the degree of contribution, if any was to be found, would be substantial.

However, as the issue of liability will be the subject of a new trial, I will express no concluded view on this issue.

I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 31  of   1998

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALLAN JAMES AUROUSSEAU APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGES:		HIGGINS, LEHANE AND WEINBERG JJ
DATE OF ORDER:		18 DECEMBER 1998
WHERE MADE:		CANBERRA

THE COURT ORDERS THAT:

1. The orders of the Supreme Court made on 19 March 1998 are set aside.

1. Judgment is to be entered for the appellant for damages to be assessed consistently with the reasons for judgment of this Court.

1. The action is remitted to the Supreme Court for assessment of damages.

1. The respondent pay the appellant’s costs of the appeal.

1. The respondent pay one half of the appellant’s costs of the proceeding up to and including entry of orders dated 19 March 1998.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

AG 31  of   1998

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALLAN JAMES AUROUSSEAU APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGES:		HIGGINS, LEHANE AND WEINBERG JJ
DATE:		18 DECEMBER 1998
PLACE:		CANBERRA

REASONS FOR JUDGMENT

LEHANE J:

I have had the advantage of reading, in draft, the judgment of Higgins J.  I need not restate the facts.  I agree with his Honour’s conclusion that the first accident was caused by a breach by the respondent of its duty of care to the appellant; the medical evidence (particularly that of Dr BC Ashman) establishes that the accident caused injury to the appellant.  I agree also that we can and should find that the appellant was not guilty of contributory negligence.  I respectfully agree with the reasons given by Higgins J for those conclusions and it follows that on that footing the case must be remitted to the Supreme Court for assessment of damages.

In my view, however, the trial judge’s conclusion about the second accident should not be disturbed.  It may well be that, apart from the avoidance of a general new trial (including on contributory negligence) as to the second accident, the appellant’s ultimate position will be little different, having succeeded on the first accident, whether or not he succeeds on the second: the medical evidence, particularly that of Dr Ashman, attributes the injuries and disabilities suffered by the appellant to the first accident, rather than the second.  It might be that the appellant, if successful as to the second accident, would be entitled to some general damages and to the recovery of particular medical expenses, but in each case, I should think, the amounts involved are likely, on the evidence which was before the trial judge, to be relatively slight.

The principal difficulty with the appellant’s case on the second accident is the paucity of the evidence at the trial as to the weight of the cabinet which the appellant and his three colleagues lifted.  The only evidence which the appellant sought to lead on that aspect of the matter was that of Dr Adams, which the trial judge rejected.  Although his Honour referred to Dr Adams’ inspection of filing cabinets similar to the one which was lifted, it is by no means clear that in deciding to reject the evidence he directed his attention particularly to the passage in Dr Adams’ report which includes what he describes as his conservative estimate of the lifting effort required to support one end of “a cabinet such as that visible behind Mr Aurousseau” in a photograph included in his report.  Nevertheless, in my view, the trial judge correctly rejected the evidence.

No doubt it may be accepted that Dr Adams’ evidence is properly to be described, in the terms of s 76 of the Evidence Act 1995 (Cth), as evidence of an opinion about the existence of a fact in issue (the weight of the cabinet or the effort required to lift it). But there are a number of difficulties with the evidence. One is that it is not by any means obvious that the training, study or experience described by Dr Adams equipped him with specialised knowledge to conduct the experiment to which he referred or to derive from it the conclusion which he stated. Secondly, the experiment itself is described in the most vague and general of terms:

“Although I was unable to lift and weigh an entire cabinet, I was able, using appropriate leverage, to lift one corner of a cabinet, and on the basis of that lift, I conservatively estimated that the lifting effort required to raise or support one end of a cabinet such as that visible behind Mr Aurousseau in Photograph 5 would have been at least 100 kg.”

Thirdly, Mr Aurousseau’s evidence, as to the filing cabinets, included the following questions and answers:

“The cabinet that you were carrying had removable drawers, did it not?  ‑ Yes.

How many such drawers do you recall it having?  ‑  There was a couple of different types that had, I think, between six and eight drawers.  I can’t recall how many drawers the cabinet was that we were carrying.”

Dr Adams does not say how many drawers the cabinet upon which he performed his experiment had.

Because of the first difficulty to which I have referred, in my view the evidence was excluded by s 76, not being saved by s 79. But even if that were not so, its other deficiencies would have led me to the conclusion that it was appropriate to reject it under s 135(b).

Once Dr Adams’ evidence is eliminated from the picture, the only evidence of the weight of the cabinet was that given, in cross‑examination, by Mr Wilson (one of the appellant’s colleagues who had participated in the lifting operation).  He was asked the following questions and gave the following answers (in a context, it should be noted, where the appellant himself had given evidence that the drawers of the cabinet had not been removed before it was lifted):

“Are you able to make any estimate of the weight of the cabinet you were lifting with Mr Aurousseau?  ‑  I’d been guessing, they’d be rough, maybe 150 kilograms.

Was that with or without the drawers?  ‑  I’d say without, it’s a fair while ago now but we couldn’t lift them with the drawers but I think four of us without the drawers it may be a rough weight.”

That could hardly be described as reliable evidence of the weight of the cabinet which the appellant and his colleagues lifted.  The appellant bore the burden of establishing each element of his case.  In this significant respect, in my view, he failed to do so.  On that footing, in my view, the trial judge’s conclusion, that negligence was not established, should be upheld.  I confess to reaching that conclusion the more readily because, given the medical evidence, I see little advantage to be gained from a further full trial of a case about an accident which occurred ten years ago in which there are substantial evidentiary questions both as to negligence and as to contributory negligence.

In the result, the orders which I favour are these:

1. The orders of the Supreme Court made on 19 March 1998 are set aside.

1. Judgment is to be entered for the appellant for damages to be assessed consistently with the reasons for judgment of this Court.

1. The action is remitted to the Supreme Court for assessment of damages.

Because the appellant has enjoyed substantial success on the appeal, bearing in mind the practical considerations to which I have referred, I would not apportion the costs of the appeal but would order that the respondent pay the appellant’s costs of the appeal.  In the circumstances, I think little is to be gained by deferring or remitting the question of the costs of the trial.  The appellant succeeds on liability as to one accident but fails as to the other.  Having regard both to the amount of time which appears to have been devoted at trial to each of the questions and also to the considerations about damages to which I have referred, I think the appropriate order is that the respondent pay one half of the appellant’s costs of the proceeding up to and including entry of the orders dated 19 March 1998.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:             18 December 1998

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 31 of 1998

ON APPEAL FROM THE SUPREME COURT OF
THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	ALLAN JAMES AUROUSSEAU APPELLANT
AND:	COMMONWEALTH OF AUSTRALIA RESPONDENT

JUDGES:	HIGGINS, LEHANE AND WEINBERG JJ
DATE:	18 DECEMBER 1998
PLACE:	CANBERRA

REASONS FOR JUDGMENT

WEINBERG J:

I have had the advantage of reading, in draft, both the judgments of Higgins and Lehane JJ.  I agree with each of their Honours’ conclusion that the accident involving the chair, which occurred on 18 September 1986, resulted from the respondent’s breach of its duty of care to the appellant. 

The “collapse” of the backrest in the circumstances outlined by the appellant (whose account was accepted by the trial judge) was, in my view, a paradigm example of the operation of the maxim res ipsa loquitur.  The fact of the accident itself, in the absence of any explanation as to how it occurred, was sufficient to give rise to an inference that the respondent was negligent in having failed to maintain or replace the chair which the respondent had provided to the appellant for his use.  This alone might justify the conclusion that the appellant’s injury resulted from the respondent’s negligence.  When one has regard also to the evidence given by the appellant’s workmates, Mr Gary Wilson, and Mr Dennis Field (to which the trial judge did not refer in his reasons for judgment) there was, in my opinion, ample evidence to warrant a finding that, on the balance of probabilities, the appellant had established that the respondent was liable in negligence. 

I would also regard the injury report prepared by Mr Wheaton on 22 September 1986 as a vicarious admission of liability on the part of the respondent.  Mr Wheaton expressed the opinion in that report that the accident had occurred as a result of:

“A DEFECT IN DEPARTMENTAL MATERIALS OR APPLIANCES.”

The trial judge did not refer to that particular statement in Mr Wheaton’s report when he summarised the effect of that report, and rejected it as amounting to an admission of liability.  The fact that the report did not identify the nature of the defect to which it referred undoubtedly affects the weight to be accorded to that statement as support for the appellant’s case.  It does not, however, detract from the fact that the statement represents an admission of liability.  If his Honour overlooked that particular part of the report, he was in error in doing so.  If he gave it no weight, he was, in my view, equally in error in doing so. 

I agree with Higgins J that there was no basis for the trial judge’s finding that the appellant was, in any event, contributorily negligent in relation to the incident involving the chair.  There was nothing to suggest that the appellant should have been alerted to the risk that the backrest would collapse if he leaned against it, and nothing to suggest that he should have tightened the clamp on the back of the seat to ensure that it was secure before placing his weight against it.

As regards the lifting incident of 12 May 1988, I agree with Lehane J, for the reasons set out in his Honour’s judgment, that the trial judge’s conclusion in relation to this incident should not be disturbed.  I also agree with the orders proposed by Lehane J.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg

Associate:

Dated: