Colin Cheshire v Borrform Constructions Pty Ltd and Baulderstone Pty Ltd No. 4197 Judgment No. SCGRG 93/215 Number of Pages 12 Negligence

[1993] SASC 4197

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Negligence - liability of master for injury to servant occupier's liability - carpenter employed by subcontractor on site occupied by head contractor required to cross gap in decking on a building site - plywood 'bridge' put down for use in crossing the gap - carpenter did not use the 'bridge' - slipped and his leg went into the gap - badly cut - finding the employer and occupier had each discharged its duty to the carpenter upheld.

HRNG ADELAIDE, 6 September 1993 #DATE 29:9:1993
Counsel for appellant:     Mr G A Britton
Solicitors for appellant:    Duncan and Hannon
Counsel for respondent:     Mr A V L Possingham
Solicitors for respondent: Gun and Davey

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by an unsuccessful plaintiff in the District Court. 2. It was an action in negligence seeking damages for injuries sustained at work. The second respondent is a builder. It, as head contractor, was building a block of apartments at the site of the former West End Brewery. The first defendant is a manufacturer, supplier and installer of formwork. It was a subcontractor to the second defendant to provide and install formwork to the building. 3. The appellant is a carpenter. He was employed by the first defendant to work on the building to set up decks for the first stage of the building. That employment began about one week before the accident. But the appellant had had much prior experience on other sites as a "construction carpenter". 4. At all times it is essential to keep in mind that he was an experienced worker in the type of work which he was doing on the day of the accident. 5. At about 9.30 am on 25th May 1990 the appellant was injured at work. 6. He brought this action against each respondent in negligence. Each respondent denied liability. The respondents exchanged Contribution Notices. Each denied any obligation to contribute to or indemnify the other. 7. The action came on in the District Court. The learned trial Judge found in favour of each respondent. He dismissed the action against each. 8. There is no doubt but that each respondent owed a duty to the appellant to take reasonable steps to safeguard him from injury on the site. The first respondent owed the duty of a master to a servant. I do not expatiate on that duty. The second respondent owed the duty to the appellant it being an occupier which knew that persons such as the appellant were on site moving about. Nor will I expatiate on this duty. 9. The learned trial Judge found that neither defendant had been shown to have failed to discharge the duty imposed on it. 10. The appellant appeals. I think it unnecessary to set either the grounds of appeal or the particulars of negligence alleged in the Statement of Claim. 11. The learned trial Judge accurately described the happening of accident thus:-
    "The plaintiff's task included setting up the decks for
    the first stage of the building. In the course of his work he
    had to go across a metal 'Bondeck' surface which would
    eventually have been covered by concrete. Running across the
    surface were holes about 600 mm wide and about 800 mm deep, into
    which concrete beams were to be placed. That concrete was to be
    reinforced by prefabricated metal rods which had, I think, at
    the time of the accident already been formed into a hollow
    square (shown on Exhibit 2D1) which was to be inserted into the
    beam hole. The surface of the bondeck is uneven, being made up
    of horizontal ribs which rise above the flat metal sheets which
    form the rest of the bondeck. They protruded 25 to 50 mm over
    the pits into which the beams were intended later to go and
    would therefore become embedded in the structure.    During his
    work the plaintiff was obliged to cross the bondeck very
    frequently in order, inter alia, to cut strips of plywood for
    fitting on another part of the decking. The bondeck sheets were
    said by the plaintiff to have a fine sheen of oil on them when
    unpacked, which he thought was intended to preserve them from
    rust. He said that they were sometimes slippery, and that on
    other jobs on which he had worked a path of plywood sheets would
    be laid out, but that there was no such path in this case. The
    plaintiff said that he was carrying two strips of plywood. To
    use his own words, he said 'Then I started walking back to the
    area I was walking (semble "working") and then I could see the
    beam coming up and I was getting ready to cross it and then I
    felt my left leg slip and then I slipped into the beam and then
    I looked down at my leg and I saw what I'd done and I called out
    for help'. (By 'beam' the plaintiff clearly meant the cavity
    into which concrete was later to be poured to form a beam.) The
    plaintiff is a tall man but would I think have had to take a
    longer pace than he used in ordinary walking in order to cross
    the hole.    The plaintiff was taken to the Royal Adelaide
    Hospital where he stayed for 4 days. He was then put into a
    splint from thigh to ankle which he wore for 6 to 8 weeks. He
    had physiotherapy for a good year, very frequently at the
    beginning. He said that while in hospital he was visited by Mr.
    Pretty, the second defendant's safety officer, who took a
    statement from him. The plaintiff said that he said to Pretty
    'What's being done about the beams and that there', to which, he
    said, Pretty replied 'They've laid plywood bridges down and
    people are walking across the bridges now'. He said that at the
    time and scene of his accident he had told Pretty to 'Make sure
    you put some ply down so nobody else falls down and nearly cuts
    their leg open'." 12. There was a dispute about exactly what the appellant said to Pretty. "Beam", "beam-hole", "hole" and "gap" were words used to describe the same thing. There were gaps or holes in the surface of the "Bondeck". They were gaps (I will say) over which the appellant was required to step, possibly by lengthening his step. The gaps were visible. A particular gap with which we are concerned was visible. The appellant knew where the gaps were. In particular, he knew where the relevant one was. He had worked many days on the site. But he had seen the gap. He had crossed and stepped over that gap about twenty times on the day of the accident, prior to the accident, without mishap. 13. The surface of the Bondeck was wet at the time. But the appellant said that the surface was no more slippery than when there had been no rain. The plaintiff thought the surface had a sheen on it which was sometimes slippery. 14. The edge of the surface of the gap must have been very sharp. The plaintiff cut his leg below the knee very badly indeed. 15. Anyone could slip on this surface, wet or dry. A slipping might cause a leg to go into the gap. That danger was clear. It was something which the respondents should have realised and guarded against. Their case is that they did. The learned trial Judge agreed. 16. As counsel for the respondents said, the case developed rather differently than expected and than "really" pleaded. I say "really" pleaded because the pleadings were adequate to raise a case of "danger from a gap with a sharp edge on a surface where a man might slip". But the "real" pleading raised merely a case of "slippery surface". At least, the pleadings could be so taken. But this does not matter. Counsel adjusted to what happened. The case was fought as a "dangerous gap in this surface" case. That is how the appeal was argued and that is how it will be decided. 17. The case of the respondents is that one of them laid a plywood bridge over the gap for workers, including the appellant, to walk on to get safely across that gap. The respondents contended that that the placing of that bridge there was a sufficient act for the discharge of the duty which each owed to the appellant. 18. I note that there were no instructions given to the appellant that he should use the bridge. 19. I should mention that the appellant was walking from west to east when his leg went into the gap. 20. If the bridge was there then, clearly, the respondents did something, at least, in an attempt to safeguard the appellant. They or one of them (and the one passive may in the circumstances take the benefit of the work of the one who was active) had provided a walkway over the gap. The first issue, therefore, is: "Was it proved that the bridge of plywood was there?". 21. No person other than the plaintiff, assuming he saw it, saw the accident. The appellant firmly denied in examination and in cross-examination that the bridge was there. He was never shaken from his confident assertion that there was no bridge laid across the gap. 22. The learned trial Judge rejected the evidence of the appellant. He said:-
    "I think, however, that there was a bridge no more than a
    very few paces to the north of the place where he attempted to
    cross the beam hole." And -
    "But I am satisfied that there was a plywood 'bridge' across
    the gap quite a short distance to the plaintiff's right." And -
"As to the question whether the bridge shown on Exhibit 2D1
    was in the position shown on Exhibit 2D1 I repeat that the
    plaintiff's evidence that the whole beamhole was completely open
    is contradicted by Mr. Pretty, who attended the plaintiff as he
    was lying down on the bondeck awaiting treatment. I have no
    reason to doubt his evidence, and I find that one bridge was in
    the position shown on Exhibit 2D1 at the time the plaintiff
    fell. The plaintiff, it will be recalled, had at the time
    spoken of the need for more (my emphasis) bridges over the beam
    holes. I think that the bridge was already there when the steel
    work intended for the beam hole was placed to the west of it
    and that it was the practice on the site to provide such
    crossing plans." 23. The photograph D2.1 was taken, as the learned trial Judge must have found, by Mr Pretty (safety officer employed by the second respondent) about ten minutes after the happening of the accident. Pretty came to the plaintiff at that time. Pretty gave this evidence:-
"Q. Do you remember that Mr Cheshire had an accident on
    25 May 1990 - you may not remember the date, but do you remember
    a couple of years ago.
    A. I remember it, yes.
    Q. Do you remember that it was on the morning of a particular
    workday.
    A. Yes, it was early in the morning.
    Q. Were you on-site at the time you understood the accident
    to happen.
    A. Yes.
    Q. Did you hear about the fact that he had hurt his leg.
    A. I didn't know it was his leg. I was told that there had
    been an accident on the formwork on the slab.
    Q. What did you do when you heard that.
    A. Well the message I got was -
    Q. Don't worry, just tell us what you did as a result of the
    message that you got.
    A. I went to the project manager and told him that there had
    been an accident and we wanted an ambulance.
    Q. Then what did you do.
    A. I went to get the trauma kit out of the first aid room and
    went up to see what was going on.
    Q. Where did you go.
    A. Up onto the plaza slab, up onto the deck.
    Q. Was that deck comprising of a bondeck sheeting on the
    plaza level of the construction.
    A. It was bondeck sheeting and plywood beams.
    Q. The plywood beams, were they running north and south,
    north/south.
    A. Yes.
    Q. Were they beams into which, in the normal course, steel
    fittings, steel beams tied together would be dropped to form the
    reinforcement before the concrete slab is poured.
    A. Yes, that's right.
    Q. When you got to that deck was Mr Cheshire there.
    A. On the morning of the accident?
    Q. Yes.
    A. Yes.
    Q. Do you know how long after the accident you got to the
    site.
    A. Into the work area where Colin was working?
    Q. Yes.
    A. Almost immediately.
    Q. Can you remember where he was in relation to the slab, or
    to the deck, the whole of the deck.
    A. Well they were working in the northeast corner of the slab
    and Colin was, he was laid on the bondeck between two beams, on
    the section between.
    Q. Between two beams.
    A. Yes.
    Q. Did you speak to him.
    A. I would have done.
    Q. Can you remember what you said between the two of you.
    A. Well I think at that stage it wasn't a great deal of
    conversation because we had an ambulance coming and our concern
    then was to get Colin to the hospital and get him patched up
    properly.
    Q. Did you ultimately or later take any photographs of that
    area.
    A. After we put Colin in the ambulance I went to get a
    camera.
    Q. Did you take some photographs of the area.
    A. Yes, I took a few.
    Q. Do you remember how long that was after the fall.
    A. Maybe 10 minutes.
    Q. Looking at the three photographs D1.1, D1.2 and D1.3 I ask
    you whether you can say whether they are exposures of the
    photographs you took that morning.
    A. Yes, they are the ones, yes.
    Q. Looking at the one which is less of a close up than the
    others, which shows the beamhole, the bondeck on both sides of
    it, and some steelwork in the background.
    A. Yes, steel reinforcing beams, yes.
    Q. Within that photograph can you indicate where Colin was
    when you first got up there.
    A. Colin would have been in the foreground.
    Q. And at about where in relation to the two sides of the
    photograph.
    A. I don't understand.
    Q. Sorry, was he on end of what the photographs show, up the
    right-hand side, left-hand side, in the middle or at some other
    point.
    A. I would say central.
    Q. Did you understand from him where it was that he had
    fallen.
    A. You couldn't actually see where Colin went in. There
    wasn't any blood or nothing like that. The safety supervisor
    and myself we had a look there and we couldn't really.
    Q. Did Colin give you any indication.
    A. Not at that stage, well Colin had gone, he was into
    hospital and he wasn't really in a - he was a bit shook up I
    suppose.
    Q. Why is it that you took photograph number one, the one you
    are looking at.
    A. I took quite a few photographs of the area around, well I
    knew were Colin was.
    Q. So did you take a photograph of the area that you
    understood, the general area, that he had fallen in.
    A. Yes, that would be this photograph, the first one.
    Q. Just looking to the far right of that photograph, can you
    describe what is there depicted in the photograph, on the far
    right-hand side.
    A. That is plywood over a beam, a sheet of plywood.
    Q. Can you tell us what purpose that would serve on a
    construction site such as this.
    A. I would say that would be a walkway.
    Q. A walkway for what.
    A. To cross over the beam.
    Q. Can you remember something that looked like that, and what
    you would describe as a walkway, at any other area in the work
    area, or can't you recall.
    A. When I went up there my main concern was Colin and that
    was all that was in my mind at the time.
    Q. So you can't recall.
    A. Yes, that's right." 24. As I have said the learned trial Judge must have accepted the evidence of Pretty. That follows from his finding that the plywood bridge was there and where shown in the photograph Exhibit D2.1. 25. I may say that I ignore the suggested use of the word "more" by the appellant. I think he must have used it but the evidence of the context in which he used it is not at all clear. He may have been referring to something other than more bridges. 26. Pretty was not there when the accident happened. He could not, therefore, say whether a bridge was there at the time of the accident from his own observation. But his evidence of the taking of the photograph Exhibit D2.1 taken so soon after the accident provides cogent evidence supporting the finding of the learned trial Judge that the bridge was there as shown in that photograph. Pretty could not remember that he saw the bridge. But if the photo does show part of the bridge there at the time of the taking of the photograph, I think it was reasonable to find that the bridge was there at the time of the accident, only ten minutes or so prior to the taking of the photograph. 27. Boris Ivan Devcic was the manager of the first respondent. He heard of the accident. He was not on site. But he went there quickly. He was at the scene in about thirty minutes from having heard of the accident. Mr Britton, for the appellant, submitted that no notice should be taken of the evidence of Devcic because his English was poor and his answers often confused. The learned trial Judge said that it was "not easy to understand some of his evidence". But I doubt that it can have been so bad that his evidence should have been rejected altogether or disregarded altogether. He did say this:-
"A. Well I could see a patch of blood on the Bondeck that
    Mr Cheshire apparently cut his leg and I seen a sheet of
    plywood across the beam.
    Q. How far from the blood was the sheet of plywood.
    A. Probably a foot or two, judging, about a foot or two.
    Q. How many sheets of plywood were there along that length
    of beam back one foot.
    A. There was a sheet of plywood and there was a couple of
    pieces of wood as well.
    Q. When you say a couple of pieces of wood, were they next to
    the plywood.
    A. Next to the plywood, 4 x 3.
    Q. So there was ones across all over the beam spaces.
    A. Yes." 28. From this the learned trial Judge was entitled to say of Devcic, "He saw some plywood over the hole in question when he went to the site shortly after the accident". The learned trial Judge must, despite imperfections of expression on the part of Devcic, have accepted this evidence. He was entitled to do so. 29. But over and above the spoken word there is the photograph Exhibit D2.1. The viewer of the photograph looks from west to east, looking "up" the photo. That is the way the appellant went. To the right, or to the north, there can be seen a dark brown "something" lying over the gap. Without explanation one would not, I think, realise, or at least readily realise, that this is part of a plywood bridge. Some evidence explained that it is darker than we would expect of plywood because it had been stained. And it is probably two strips of plywood, one of top of the other. 30. The evidence of the existence and position of the bridge is not as clear as one could wish. Pretty, who got to the scene of the accident so soon after it had happened, was much taken up with attending to the injured plaintiff. It is a pity he could not give more precise evidence about the bridge and its position. Devcic was a witness whose expressions were confusing.But he said enough in conjunction with the photograph to justify the finding of the learned trial Judge. So did Pretty by the very fact that he deposed to taking the photo when he did. I emphasise that it is the photograph which is the telling evidence. I do not think we should interfere with the finding of the learned trial Judge about the existence and position of the bridge. The photograph with the admittedly rather sparse oral evidence supports that finding. 31. Was the provision of the bridge an adequate discharge of duty to take care towards the plaintiff? As I have said, no-one disputes the existence of the duty. The learned trial Judge said:-
    "If no alternative means of crossing the beam hole other
    than by stepping over it had been provided I think that neither
    defendant would have discharged its duty of care. The risk was
    in my view a small one, but it could have been removed by the
    provision of sufficient bridging." 32. I think that this comment is sound in fact and law. The risk was small. After all the appellant crossed the gap by stepping over it about twenty times that day prior to the accident. He was an experienced man. The gap was clearly visible. The bridge was clearly visible. He chose not to use the bridge. Although the risk was small it was not far fetched or fanciful. It was a risk which the reasonable employer or occupier could have foreseen. And, indeed, they did because the bridge was put there. The respondents were called upon to take some steps to deal with the small risk owed to an experienced man. The learned trial Judge said:-

    "In summary, I think that it may have been the fact that
    the plaintiff would have had to prepare to lengthen his normal
    stride somewhat in order to step across the beam hole which
    caused him to lose purchase with his left foot on the Bondeck
    which was, I think, a little slippery either because of dampness
    or because of the way in which it had been packed. The
    plaintiff had, however, safely crossed the damp Bondeck surface
    about 20 times that morning. On this occasion, he said, he felt
    his left leg slip as he was getting ready to cross the beam
    hole. I think that there was a risk that a workman might
    inadvertently slip or step into a beam hole and injure himself
    and I think that although the risk was a slight one the
    defendants should have been aware of it and should have guarded
    against it. The plaintiff, too, ought in my view to have taken
    more care than he did, and, if the defendant or one of them is
    liable to him might also be held to have been at fault.    But
    in my opinion the defendants were aware of the beam hole being a
    possible danger and that they, or one of them, had taken steps
    to avoid that danger by providing a safe means of crossing the
    beam hole by bridging it with plywood. The plywood bridge was
    in what was, I think, a well-chosen place by reason of the
    obstacle presented by the steel ligatures which, I think
    probably, blocked the plaintiff's route except at the most
    northerly part of the site. The plaintiff was attempting to
    cross the beam hole at a point which was, I think, close to the
    bridge. He would, if he had safely stepped over the beam hole,
    have had then to move north in order to get round the end of the
    steel ligatures, which were, I think, at the time in the same
    position shown in Exhibit 2D1, though they might well at an
    earlier stage of their construction have been in sections which
    would not have formed a continuous ligature. According to the
    plaintiff there was no one in the vicinity when he fell, so it
    would seem that no one was working on the ligatures at that
    time.
     But whether or not there was a gap between portions of
    ligature as shown on Exhibit 2D1. the plaintiff failed to use
    what was a safe and equally convenient way of crossing the beam
    hole. What he chose to do was to step over the hole. It is in
    respect of his having chosen that method of crossing the beam
    hole that the defendants plead contributory negligence. Such a
    plea, of course, presupposes a defendant's fault. The
    defendants, however, deny that they were at fault. I do not
    think that either failed to take reasonable care by reason of
    their not having placed a continuous cover over the beam hole.
    In that respect I rely on the evidence of Mr. Harrison. A
    defendant's duty is to take reasonable care, and in my view the
    defendants in this case have not been shown to have failed to do
    so." 33. It will be seen that counsel had suggested to the learned trial Judge that a continuous cover should have been put over the beam hole. The learned trial Judge held that that was not necessary to guard against the small risk which existed. And he relied on "practice in the trade" (my expression). For that he had the evidence of John Harrison. John Harrison was a safety superintendent, employed by the second respondent. He had held that job since 23rd April 1988. He had been a government inspector of construction work for some thirteen years prior to 23rd April 1988. He went to the scene of the accident about lunch time on the day that it happened. He could not, of course, say that the bridge had been there at the time of the accident or not. But he gave some evidence which is of some use in determining whether the bridge was there or not. He said:-
    "Q. Did you, when you arrived on the scene, observe whether
     there was any sheeting or any substance which was bridging that
     length of hole.
     A. There was bridging pieces across in various areas, not
     completely covering all, but there was a number of sheets across
     sections of the beams, yes.
     Q. Can you see any of what you have just described in that
     photograph.
     A. Just to the very right of the photograph is the edge of
     the sheet of plywood across the beam, visible." 34. This only makes a modest contribution to the question of the existence and position of the bridge but it was of some slight value. I should mention that elsewhere in evidence (under cross-examination) Harrison appeared to say that the plywood was "not a bridge in the sense we have said this morning". The passage of evidence in which this evidence was given is -
    "Q. These pieces of ply, the two pieces of ply in the
    photograph we have been looking at, are you able to say how long
    they were.
    A. Not specifically, no.
    Q. Do you remember if they were of the same length.
    A. I would think so, yes.
    Q. Were there only two of them or was there some other ply
    placed on top of the two sheets that we can see in the
    photograph but to the right of the photograph.
    A. There were sheets of ply on the site. Where they were
    placed, I can't remember.
    Q. I am just asking you about this specific spot here where
    we can see the two bits of plywood. I am saying to the right of
    that, was there any other timber on top of that.
    A. I can't recall.
    Q. And the way that it appears with the two pieces of ply not
    being flush, does that suggest to you that some technique has
    been followed to build a bridge or aren't you able to say.
    A. No.
    Q. Could you put forward any explanation as to why they are
    not flush.
    A. People walking a across them - they could have moved.
    Q. They could have moved.
    A. They could have if they had been placed like that
    originally.
    Q. Is there any direction, though, as to the construction, if
    I can use that term, of bridges.
    A. Usually it's a single sheet. Those particular sheets
    there I don't believe were a bridging piece. I believe from my
    recollection they were alongside the work area and they were
    being used to form the beam to be cut up. That's my belief.
    Q. And weren't then a bridge in the sense we have said this
    morning.
    A. Exactly.
    Q. So, really, in these photographs, the three photographs we
    are looking at, you can't see any bridges in any of them.
    A. Not in that particular section, no." 35. Although part of this evidence seems to deny that the plywood was there as a bridge in other parts he suggests that people walked across them. Of course, much of his evidence amounts to an offering of opinion. The inconsistency may be that he was suggesting that the plywood was there although not put there as a bridge. Be all that as it may, I think that other evidence does, as I have said, establish the presence of the bridge. Harrison, on the whole, gives modest support to that evidence. 36. More importantly, of practice in the trade, Harrison said:-
    "Q. In your experience as an inspector and as the safety
    superintendent of Baulderstones, is it consistent with your
    experience that where there is an open beam hole of the type
    depicted in that photograph, that there are bridges made at
    various intervals along the beam hole.
    A. Usually safe access is provided across at various
    intervals, yes.
    Q. Is there any reason why the whole of the hole is not
    covered.
    A. Well it is not practicable to cover the whole, because
    immediately the formwork is erected the steel immediately
    follows, and it is not industry practice to cover the hole
    completely." And -
"Q. Do you still say that it wouldn't be practicable to lay
    down sheets like that plywood either in six feet or eight feet
    lengths so that the whole of the formwork or the trench is
    covered. Is that your evidence.
    A. Yes.
    Q. And, again, why is it impracticable, I think was the word
    you used before.
    A. It's impracticable because the progress of work, the
    follow of trades immediately the formwork is completed starts to
    take place. The steel and the electrical contractor places his
    conduit in the steel and so on. The plumber comes. He puts his
    penetrations in for the services and then the concrete is
    poured, so it's a continuous operation." 37. He said that the plywood would be "adequate to be able to walk across". That is useful evidence. When one speaks of plywood one is perhaps inclined to wonder whether it would be strong enough to support a man's weight. 38. The learned trial Judge found that there had been no fault in failing to put a continuous cover over the gap. As I have said, Harrison's evidence of the practice of the trade and of the nature of the work, entitled the learned trial Judge so to find. I agree with His Honour's finding. 39. During the hearing I wondered whether more should have been done by the respondents. A rope barrier with flags, a sign saying "Use Bridge" with an arm pointing to it with another sign with an arrow pointing to the bridge, firm instructions given to the appellant to use the bridge whenever crossing the gap. All occurred to me. But in the end I am persuaded by the arguments of counsel for the respondents that reasonable care did not require more than the provision of the bridge. I repeat that the appellant was an experienced and intelligent worker on sites like this one. The gap was obvious. The bridge was obvious, clearly placed where it could be seen. And there, obviously, for use. 40. I need not stay to recite authority or to quote from authority for the proposition that both employer and occupier owed the appellant a duty only to take reasonable steps to safeguard him. Perfection was not required. Having regard to the nature of the site, the nature of the work, the experience of the appellant and the provision of the bridge, I repeat that I think the respondents exercised reasonable care towards safeguarding the appellant. Of course, I remember that employers are required to take reasonable care towards foolish as well as wise employees. But it all depends on the circumstances. And in view of the fact that he was able to go successfully across the gap so often I do not know that it can be said that the appellant took a step which was so very foolish in not using the bridge. I think that both employer and occupier were entitled to expect that a man of the appellant's intelligence and experience would have used the bridge. 41. I would dismiss the appeal.

JUDGE2 DUGGAN J In my view this appeal should be dismissed for the reasons given by Bollen J.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed for the reasons expressed by Bollen J.