Foufoulas v F G Strang Pty Ltd

[1970] HCA 26

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ.

FOUFOULAS v. F.G. STRANG PTY. LTD.

(1970) 123 CLR 168

7 August 1970

Negligence

Negligence—Master and servant—Duty of care—Standard of care—Stevedore and wharf labourer—Injury sustained unloading goods on wharf—Universal custom for wharf labourers to equip themselves with special hooks—Less risk of injury if another kind of hook used—Whether stevedore in breach of duty—Safe system of work—Modus operandi—Whether system inherently so dangerous that labourer should not have been employed.

Decisions

September 7.
The following written judgments were delivered : -
BARWICK C.J. This is an appeal from a decision of the Full Court of the Supreme Court of Victoria setting aside the verdict returned by a jury in favour of the appellant in an action in which he sued the respondent, his employer, for breach of the employer's duty to take reasonable care for an employee's safety. (at p170)

2. The appellant was a casual waterside worker registered under the Stevedoring Industry Act 1956-1966 (Cth) engaged by the respondent, a stevedore, as a member of a gang of waterside workers assigned to the respondent to do the particular task for which the respondent required labour, namely, the unloading of bales of wool from lorries to the floor of a shed on a wharf in the port of Melbourne. As is the custom at that port, and apparently at all Australian ports, the wharf labourers provide themselves with a hook to assist them in handling cargo. The respondent did not require the use of a hook in the performance of the work required to be done but doubtless it was aware that it was the practice of the wharf labourers, and perhaps that in some situations it was necessary, to use a hook to assist in moving wool bales when unloading them from a lorry as in the instant case. Wharf labourers at Australian ports universally furnish themselves with a single-pronged hook. Not all these hooks are identical with each other. The wharf labourer not merely chooses his own hook but determines its dimension and configuration. In some cases he has it specially made to his own order. (at p170)

3. When using a hook in the handling of wool bales on a lorry, the hook is inserted into the bale of wool, thus effecting a grip against which the wharf labourer can apply pressure to assist in altering the position of the bale so as to facilitate pushing or rolling it to the floor. The risk, if risk is really the right description of the possibility, that a hook, if used, may come out of the bale of wool was an obvious incident inherent in the uncomplicated task of moving bales of wool loosely stacked on a lorry. That a wharf labourer might fall to the floor from the top of the load of wool bales was an equally obvious and inherent incident. (at p170)

4. The appellant on the day in question was working on the top of the load on a lorry rolling or pushing the bales of wool from the lorry to the ground. Other members of the gang of wharf labourers of which he was a member were engaged in stacking the bales in the shed on the wharf after they had come off the lorry. The appellant, using his own single-pronged hook, inserted it into a bale of wool with a view to moving the bale into a position from which he could project the bale to the floor of the shed. For some reason the hook became disengaged from the bale at a time when the appellant was applying upward force to the handle of the hook. As a result of the hook becoming free, the appellant lost his balance and fell to the floor with consequential personal injury. (at p171)

5. The appellant submitted that it was a breach of the respondent's duty as his employer to take reasonable care for his safety (i) to allow him to use a single-pronged hook ; (ii) to fail to give him, or cause him to obtain, a double-pronged hook ; (iii) not to employ a mechanical form of unloading the lorry. (at p171)

6. It is said on behalf of the appellant that the risk of a single-pronged hook coming out of a wool bale and the risk of a wharf labourer falling off the top of wool bales loosely loaded in several tiers on a lorry were risks against which, in performance of an employer's duty of reasonable care for the workmen's safety, the appellant ought to have been protected ; then it is said that, upon the evidence it could be reasonably found that the use of a double-pronged hook would have minimized those risks : lastly, it is claimed that it could be held on the evidence that the respondent, acting reasonably, ought to have insisted upon the use by the appellant of a double-pronged hook. (at p171)

7. In my opinion, the possibility of a hook pulling out of a bale and the possibility of falling from the loaded lorry were each "risks" with which a registered wharf labourer as part of the essential skill of his occupation could reasonably be expected to cope. As to registration of wharf labourers, see s. 29 (1) (b) of the Stevedoring Industry Act. The employer, in my opinion, was reasonably entitled to rely on the exercise by the wharf labourer of such essential skills ; and the more so because the wharf labourer provided himself with a hook which was itself designed to minimize these possibilities. (at p171)

8. Also, whilst there was evidence which the jury were entitled to accept that the use of a double-pronged hook could have reduced the possibility of a hook coming out of a bale, it was apparent that the Waterside Workers' Federation, the organization of employees to which the appellant belonged, had resisted an attempt by the appellant to secure a change in the practice of using hooks in the handling of bales of wool. Indeed, an attempt by the appellant to cause a strike because of such use of hooks failed. The appellant's evidence of his union's reaction to his proposal was eloquent of the attitude of the Waterside Workers' Federation. He said "I suggested that" (i.e. a strike for the said cause) "to the Union but they said, you have a job, and if you don't like it, well leave it". There was no evidence to suggest that the respondent could have prevented the use by wharf labourers of hooks or of any particular form of hook : or that in the condition prevailing on the waterfront, it could have insisted on the use of a hook of a kind provided by it. This is not, in my opinion, a case where the employer was called upon to provide equipment for the performance of the task for which he engaged the appellant. The system of engagement of labour to do stevedoring work which was then current in the ports of Australia was that the Stevedoring Authority set up under the Stevedoring Industry Act, having called for and obtained labour at the pick-up point, assigned to the stevedore wharf labourers customarily equipped for their task in numbers and at times dictated by the nature of the stevedoring work to be done, see s. 17 (1) (b) of the Stevedoring Industry Act. General statements as to the employer's duty to provide equipment for the performance of the required work such as are to be found in General Cleaning Contractors Ltd. v. Christmas (1953) AC 180 are, in my opinion, of no present relevance. In saying that I would not wish to deny that there may be circumstances in which the employer, not having any obligation to supply tools or equipment, but becoming aware of the use by the employee of tools or equipment which it can reasonably be foreseen will subject the employee to a risk of injury avoidable by the taking of steps which may reasonably be required, becomes obliged to take such available and reasonable steps to protect the employee against such risk. The degree of the risk, and the nature and extent of the step suggested to be taken will be elements in considering whether the employer failing to take the same is in breach of a duty to take reasonable care. However, in my opinion, bearing in mind the circumstances to which I have adverted, this is not such a case. (at p172)

9. My conclusion is that it could not reasonably be held that it was unreasonable for the respondent to allow the appellant, as an experienced waterside worker, to perform the required work - namely, the unloading of the wool bales from the lorry - in his own way, including the moving of the bales of wool by the use of an implement of his own choosing. The risks of the performance of the work in that fashion were not, in my opinion, risks either in their nature or degree such as called for the intervention of the employer : nor could it be held reasonably that the respondent ought to have furnished the appellant with an implement to aid him in the performance of the required work and, in particular, with a double-pronged hook. (at p172)

10. Thus, in my opinion, neither the possibility that a hook might tear itself out of a wool bale nor the possibility that a wharf labourer might fall from the load upon a lorry to the ground could be held in the circumstances of the case to be unnecessary risks. (at p173)

11. The second ground of negligence can be disposed of quite simply. Assuming that the evidence went so far as to permit the conclusion that the unloading of bales of wool by a specially-equipped front end loader would involve less risk of injury to workmen employed in such an operation, (a matter on which I express no opinion), had that method been employed by the respondent the appellant would not have been working for the respondent on the day in question unloading wool. He was not a driver of such mechanical equipment: and the suggested method did not require a wharf labourer on the load. The proposition of the appellant therefore is in substance that it was a breach of the employer's duty of care towards his employee to have employed him at all. But, in my opinion, it just cannot be a breach of a duty of care to an employee to have employed him. cf. Withers v. Perry Chain Co. Ltd. (1961) 3 All ER 676, at p 680 , per Devlin L.J. It is the existence of the relationship of employer and employee which gives rise to the duty of care. It is a failure to take care for the safety of a person who has become an employee and during his employment which constitutes the relevant negligence. It is not a question whether it was unreasonable for the respondent to seek to have the wool bales manually unloaded or whether it was unreasonable not to have adopted a mechanical means of doing so. The question is whether in the employment which existed the employer failed in his duty to the appellant. Subject to statutory provisions, the employer is entitled to decide his own method of achieving the result he desires. If that method involves unnecessary risks, i.e. risks avoidable by the exercise of reasonable care, the employer must take reasonable care to avoid them and their consequences. Of course, there may possibly be cases in which the risk is so considerable, the consequences so drastic and in which there exists no available method of avoiding or minimizing the apparent risk that the only reasonable step to be taken in performance of the employer's duty of care is not to send a workman in his employ to do the particular thing which attracts such a risk: but such a situation does not arise here. (at p173)

12. The question for this Court is whether there was any evidence on which reasonable minds could draw the conclusion that the respondent was in breach of his duty. Care must be taken that in purporting to decide that question the Court does not merely substitute its own opinion as to what is reasonable for that of the jury where there is material on which either view could reasonably be taken. But, having given myself that caution, I am clear in my opinion that there was in this case no material upon which it could reasonably be concluded that the respondent was in breach of its duty to the appellant to take reasonable care for his safety. The circumstances of the case are of a kind for which the Workers' Compensation Acts were intended to provide. I would dismiss the appeal. (at p174)

MCTIERNAN J. I would allow this appeal on the ground that there was evidence of negligence. In my opinion the learned trial judge reached a right conclusion at the close of the case in holding that there was a case that must be left to the jury. The decision of the Full Court of the Supreme Court of Victoria, as I understand it, was to the effect that the defendant conformed with a practice of long standing in the unloading of the semi-trailer, and it was not therefore reasonable for the jury to decide that the defendant was negligent. The fact, however, was that the defendant took no precaution for the safety of the plaintiff. The Court expressed their view of the case in these words: "The evidence, in our opinion, disclosed no more than that the respondent met with an unfortunate accident made possible by the nature of his work, and not caused by any want of reasonable care on the part of the appellant." (at p174)

2. A summary of facts which the jury may have found on the evidence of the plaintiff appears at the beginning of the judgment of the Full Court(1970) VR 652, at pp 653-654 (at p174)

3. "The respondent", the plaintiff, "who was aged about 43 years at the time of the accident, came to Australia in 1955 as a migrant from Greece. He thereupon entered into employment as a wharf labourer, and had been in that employment for approximately twelve years prior to the accident. (at p174)

4. The appellant is a company carrying on business as a stevedore. (at p174)

5. On 15th February 1967, the respondent was one of a gang of five wharf labourers engaged in unloading bales of wool from a large semi-trailer in a shed at Appleton Dock, Melbourne. The respondent and his companions in the gang were allotted to the appellant for work on that day. The bales of wool were stacked in three tiers on the trailer. There was a large number of bales, weighing on an average about 300 lbs but some up to 500 lbs. The respondent was working on the trailer, as also was the driver of the semi-trailer, whilst the other four members of the gang were operating on the floor of the shed. The respondent was working at the rear of the trailer, and the driver at the front. (at p175)

6. The method in use was for the respondent to push the bales over the near side of the trailer on to the floor of the shed. The respondent was equipped with a single-pronged hook to assist in the manipulation of the bales. The driver of the semi-trailer was equipped with a double-pronged hook, and he was operating independently of the respondent at the forward end of the trailer. The hooks were used by sticking them into the bales whilst moving the bales across the trailer, and whilst the bales were being toppled over the side of the trailer. The top layer of bales had been removed, and five of the bales on the second layer had been taken from the rear end of the trailer. The next bale to be moved was on the off-side. The respondent was standing on top of the lower layer of the bales and was in the process of moving the sixth bale from the off-side of the trailer towards the near-side. He had moved the bale to the centre of the trailer. He placed his hook into the off-side of the bale with a view to turning it over and toppling it off the near-side of the semi-trailer when, apparently, the hook came out and the handle struck him on the head. He lost his balance and fell over the rear of the trailer on to the concrete floor of the shed. At the time he fell, he was standing about eight feet above the floor. He sustained a serious dislocation of the left hip which kept him from work for about twelve months, and left him with quite substantial residual injuries." (at p175)

7. In the learned judge's charge to the jury, which the State Full Court remarked was not challenged and was careful and comprehensive, he said: ". . .you have to consider here whether in the circumstances here the risks if you find them were risks which the plaintiff undertook by being a wharf labourer handling wool were risks reasonably attendant upon his employment and such as any person engaged in that particular type of employment might reasonably be expected to take. The risk of being injured in the circumstances in which the plaintiff was." His Honour rightly left it to the jury to decide whether the risk of falling from the second tier of the load to the ground was a risk of employment the plaintiff had to face or a risk which the defendant by taking reasonable thought and by taking reasonable care could significantly limit or eliminate. I do not think that the Full Court gave sufficient weight to the fact that they were setting aside a finding of negligence by a jury and not reviewing the decision of a judge sitting alone. The top of the row of bales from which the plaintiff fell was some eight or nine feet above the floor of the shed. He fell to the floor and sustained serious injuries. In my opinion a prudent employer would reasonably foresee that a fall from such a height could cause serious injury. (at p176)

8. Apart from the evidence as to practice, there was in my opinion evidence of negligence fit to go to the jury. As regards the evidence of practice, the learned trial judge, on his charge to the jury said:

"Where there is a long-established practice in the trade or business such a circumstance as that of course has been said by the courts to weigh heavily on the side of the employer, and it is strong evidence of the reasonableness of the system which is in use and of the actions or failure to take action of the employer, but of course, the fact that a system has been in force for a long time, does not necessarily by any means mean that therefore the employer has taken reasonable care. All I am saying is it is a strong point in favour of the employer if it is a system that has been long-established and is recognized as an established system, but it is not conclusive by any means. There may be circumstances where an employer, where he is following a system which has been in use in the trade for many years, may be negligent because it is a bad system, and you cannot excuse an employer by saying he is not negligent because other people are doing the wrong thing. You cannot say that it is not a bad system even though others may be using it as well." (at p176)

9. The Full Court, without referring to this passage, decided in effect that the evidence as to practice was to all intents and purposes decisive and in the defendant's favour and it was therefore unreasonable for the jury to decide that the defendant company had not fulfilled their duty to take reasonable care for the safety of the plaintiff. The jury saw and heard the witnesses and were entitled to take their own view of the evidence as to practice and whether the defendant had taken reasonable care for the safety of the plaintiff in the particular circumstances of this case. In Winter v. Cardiff Rural District Council (1950) 1 All ER 819, at p 822 , Lord Porter said :

"The duty cast on the master is, of course, not absolute, but only to do his best to fulfil the obligation placed on him, though, indeed, a high standard is exacted. As the law stands, that duty must be considered in relation to the circumstances of each particular case."

In Paris v. Stepney Borough Council (1951) AC 367, at p 388 Lord MacDermott said:

"It is no less clear that the duty is owed to the workman as an individual and that it must be considered in relation to the facts of each particular case." (at p176)

10. The learned trial judge stated in his judgment on the submission that there was no case to go to the jury, what he thought the jury might, if the case were left to them, consider the salient features of the evidence. I quote from his judgment:

". . . an established system may well be the primary guide but it is not the absolute guide if there is a proved danger. There is room here, in my view at all events, for the jury saying - though I am not necessarily saying that I would say it - but there is room for the jury here to say that there are proved dangers. One of those proved dangers, or they could find rather, is the uneven - I can't call it a platform, because it is not a platform - but the uneven deck, if we may call it that, on which the worker was working, and a deck on which he is required to work. By the deck I mean the uncertain, and the uneven, and the insecure, and the moving top of the three bales transversely across the truck. They apparently move back and forth, and the plaintiff may be thought to be walking, so the jury could think, on the top of two or three moving bales, bales which are rounded at the end or if the top end particularly, rounded ends were not upright. The sides of the bales are somewhat curved and one would imagine if they are not pressed closely together would be liable to be rocking whenever they were stepped upon. So that it could be said by the jury that there was a proved danger and that the employer may have had an obligation to provide some sort of a platform across the top of the bags. These are only thoughts which are in my mind, and they may think otherwise about it, but it is open to them to think along these lines, I would imagine. Added to that insecure platform, and I am using that word because there is no other word suitable to my mind, that the man is working on, if indeed the platform moves, as it seems it does, and in this case may well have moved, if it moves and he loses his balance there is no railing or other means to prevent him falling a substantial distance to the ground. Now, it could be they never put rails up, and it may be that they need not put rails up, but that is a question for the jury to determine in the circumstances. One does not take an isolated circumstance and say the bales moved, as one circumstance, and treat that in vacuo, or say was there a rail, and treat that in vacuo, or was there a blunt hook and treat that in vacuo, was there a suitable hook being used and treat that in vacuo. One has to look at the whole of the circumstances, and it is in what Lord Somervell said in Cavanagh v. Ulster Weaving Co. Ltd. (1960) AC 145 What he said was, in effect, that an employer does not warrant the safety of the working conditions, nor is at common law an insurer of an employee's safety. His duty is to take reasonable care in all the circumstances, plural, all the circumstances, whatever the circumstances. I think you have got to look at the whole of the circumstances here as a composite situation, and just see what happens, and that is the way in which the jury would be entitled to look at it. They would be entitled, though they may not, of course, they would be entitled to find on a consideration of all the circumstances here, that the employer may well have been failing in his duty. Now, I am not saying that they will, or that they should, but if indeed they could, I feel I should not usurp their function, and I propose therefore for it to go to the jury."

I think that the jury may have considered that the evidence of the practice was sketchy; and that a prudent stevedore would have used some method other than the manual labour of a man equipped with a hook in a case where the bales he would have to use as a foothold were not tightly packed or were not reasonably safe to walk on. There was evidence that there was available mechanical means which were used in woolstores for unloading bales of wool from semi-trailers. The unloading of the bales was being carried out in the presence of the defendant's foreman. The charge of the learned trial judge contains this passage:

"Of course it may be that if it is known that in transporting wool, the bags tend to become loose although they may earlier have been packed tightly, and that is a common enough condition to experience, you may consider whether or not the employer should have warned the plaintiff and other workmen about the danger of loose bags being unsafe or an insecure platform to work on but, on the other hand, you may say the plaintiff and other men working on the wharf, they are experienced wharf labourers. They know what problems, what perils like this are readily experienced and how far to guard against these things happening in the sense that knowing that they will happen, they take care to see they do not come to grief because of it. What the plaintiff then says is that he was unloading this load. He was standing on an insecure platform with wobbly bales under his feet, and he was using a hook which was different from what the 'truckie' at the other end of the load was using, and different from what 'truckies' generally used. It was a hook, however, which he had been using and if not that hook, then a similar hook to it which he had been using all the time he had been on the wharf, and it was the usual hook used by wharf labourers in unloading bales but, he says, it was not the right sort of hook to be used. It was the sort of hook which allowed this sort of thing to happen, and he says that the employer was negligent in not issuing him and his workmates, I suppose, with a two-pronged hook. That is, at all events, what he says there."

The jury may have considered that the foreman should have given a warning, of the kind mentioned by the judge. The jury may have considered that the unloading was being done in accordance with the foreman's orders to the plaintiff, rather than in a manner demanded by a practice of employers, if they attached importance to a passage in the cross examination of the plaintiff which contains the question, why he did not throw the bale of wool over the offside of the vehicle instead of moving it over the top of the second tier to the near-side to throw it over that side, and the answer of the plaintiff, that he was ordered to throw all bales of wool over the near-side of the vehicle. It would have been obvious to the jury, if they did attach importance to this piece of the cross examination as well they might have, that the foreman's order increased the peril of the task of unloading the wool, allotted by the foreman to the plaintiff. (at p179)

11. As regards the hook which the plaintiff was using, there was evidence which the jury may have accepted that a hook with a single prong does not give a grip of a bale of wool as firm and reliable as a hook with two prongs does. There was evidence that a hook of the latter kind was universally used by storemen employed in wool stores when loading or unloading bales of wool on or off semi-trailers. In such circumstances I am at a loss to see why the jury should not find the defendant company lacking in their duty to take reasonable care for the safety of the plaintiff, on the ground that they failed to take the reasonable precaution of supplying to the plaintiff a hook with two prongs to move the bales of wool across the top of any tier in the load, having regard to the height, and the serious harm which a fall would cause to him. (at p179)

12. The plaintiff was not a jobber or any sort of independent contractor. The relationship of master and servant between the defendant and the plaintiff existed when the plaintiff was allotted to engage in carrying out the unloading of the wool from the semitrailer. The general nature of the relevant obligation of the defendant to the plaintiff is clear. The duty of an employer is "to take reasonable care for the safety of his workmen": per Lord Wright in Wilsons &Clyde Coal Co. Ltd. v. English (1938) AC 57, at p 84 In reference to the duty Parker L.J. said in Wilson v. Tyneside Window Cleaning Co.(1958) 2 QB 110, at p 124:

". . . the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary."

I am at a loss to see why the jury should not find the defendant company lacking in their duty to take reasonable care for the safety of the plaintiff because he used the hook which he brought with him and it was not supplied to him by the company. Indeed the plaintiff said in answer to a question in cross examination that he made a protest to the foreman against using the hook he brought with him in the unloading of the semi-trailer but the foreman threatened to send him away if he did not use it. The foreman was not called as a witness. A point was made out of his admission that the plaintiff used a hook with one prong to handle bales of wool when he returned to work. It appears from the evidence that he would not be physically capable by reason of the serious injuries he sustained of climbing on a load of bales of wool and unloading them. He was indeed after the accident carrying out duties suitable only for a man with limited physical capacity. (at p180)

13. A question as to the admissibility of evidence was raised by the defendant's notice of appeal filed in the Supreme Court. The Full Court did not give a concluded opinion on it but presumed that it was admissible for the purposes of deciding on the sufficiency of evidence. It is unnecessary for me to deal with the question. The objection to it was only that it was hearsay. The fact stated was not contradicted by the defendant. (at p180)

14. Having regard to the question of principle on which the case should have been decided by the State Full Court I am unable to reconcile the decision of that Court with Morris v. West Hartlepool Steam Navigation Co. Ltd. (1956) AC 552; Cavanagh v Ulster Weaving Co Ltd (1960) AC 145; and General Cleaning Contractors Ltd v Christmas (1953) AC 180 (at p180)

15. The jury found both negligence and contributory negligence, the latter to the extent of ten per cent only. On the evidence available to the jury, in my judgment, a jury of six reasonable men might so find: Metropolitan Railway Company v. Wright (1886) 11 AC 152, at p 156; Mercer v. The Commissioner for Road Transport and Tramways (N.S.W.) (1936) 56 CLR 580, at pp 591, 592 ; Cavanagh v. Ulster Weaving Co. Ltd. (sub nom. Ulster Farmers' Mart Co. Ltd. v. Scottish Co-operative Wholesale Society Ltd.) (1958) NI 78, at p 115, per Lord MacDermott LCJ (at p180)

MENZIES J. I have had the advantage of reading the reasons for judgment of the other members of the Court and for the reasons given by those who would dismiss the appeal I agree that this appeal should be dismissed. (at p181)

OWEN J. I agree that the appeal should be dismissed for the reasons given by the Chief Justice. It is impossible, in my opinion, to hold that the evidence could justify the conclusion that the respondent had failed to take reasonable care to protect the appellant against unnecessary risk either by employing him to unload the truck by tumbling the bales of wool off it rather than employing someone else to do the work by using some mechanical device in the nature of a fork lift or by forbidding him to use the tool of trade, a cargo hook, of the kind customarily used by wharf labourers on such a task, a tool which they themselves provide. I would only add a reference to a passage in the speech of Lord Reid in General Cleaning Contractors Ltd. v. Christmas (1953) AC 180, at p 192 His Lordship there said:

"A plaintiff who seeks to have condemned as unsafe a system of work which has been generally used for a long time in an important trade undertakes a heavy onus: if he is right it seems that all, or practically all, the numerous employers in the trade have been habitually neglecting their duty to their men." (at p181)

2. This was what the appellant in the present case sought to establish and the evidence was, in my opinion, incapable of supporting a finding in his favour. (at p181)

WALSH J. The appellant brought an action against the respondent in the Supreme Court of Victoria for damages for personal injuries sustained by the appellant when he and others were engaged in unloading bales of wool from a semi-trailer to the floor of a shed on a wharf. The respondent carries on business as a stevedore and the appellant was a wharf labourer who was one of a gang assigned to the respondent on the day on which the accident occurred. The appellant alleged that his injuries had been caused by the negligence of his employer, the respondent. At the trial of the action the jury returned a verdict in favour of the appellant. Upon an appeal brought by the present respondent to the Full Court of the Supreme Court of Victoria, that Court set aside the verdict and judgment and ordered that judgment should be entered in the action for the present respondent(1970) VR 652 This is an appeal from that decision of the Full Court. (at p181)

2. The Full Court upheld the submission that, on the evidence, it was not open to the jury to find negligence on the part of the present respondent. In that Court it was submitted, on behalf of the present appellant, that a finding was open that there had been a breach of the employer's duty (1) in not providing for use in the unloading of the bales of wool a mechanical grab of the fork-lift type; (2) in not providing to the appellant, or ensuring that he used, a double-pronged hook instead of a single-pronged hook; and (3) in not providing an additional worker to assist him in pushing the bales of wool from the semi-trailer. In this Court counsel for the appellant did not seek to support the third of those heads of negligence but relied upon the first and second of them. (at p182)

3. In the course of the submissions made on behalf of the appellant to this Court reference was made to the duty of an employer to adopt a safe system of work. But, in my opinion, in this appeal no question arises whether the respondent did or did not take reasonable care in respect of devising and maintaining a safe system of work. The complaints which are made cannot be regarded as being complaints that a defective system was adopted or permitted by the employer for the carrying out of the task which had to be performed. (at p182)

4. The first complaint is that the appellant should not have been allowed to enter upon the task of pushing or rolling the bales of wool from the semi-trailer to the floor of the shed. It was that task which he was employed to perform. The first complaint is not that some different system should have been used for performing it, but that he should not have been permitted to perform it at all, for the reason that the employer could have achieved its purpose of getting the bales of wool off the semi-trailer by employing someone to operate a mechanical grab. But the appellant was not in general employment with the respondent to carry out such duties as might be assigned to him from time to time. He was a wharf labourer assigned to the employment of the respondent for the specific purpose of unloading wool, as a member of a team of wharf labourers, in the manner in which the unloading of goods on the wharves was regularly carried out by wharf labourers at the Port of Melbourne and other Australian ports. In those circumstances, I agree entirely with the reasons given by the Chief Justice, whose judgment I have had the benefit of reading, for concluding that it could not be found that in so employing the appellant the respondent was in breach of a duty of care owed to him. (at p182)

5. The second ground upon which it is asserted that the respondent was negligent is that it allowed the appellant to use a single-pronged hook, whereas there was evidence that there would have been a smaller risk of the hook coming out of a bale and of consequent injury to the worker, if he had used a double-pronged hook. As to this ground the critical feature is, in my opinion, that it was the appellant who provided himself with a hook chosen by him. It is clear, of course, that in general an employer, in the course of carrying out the obligation to take reasonable care for the safety of an employee, has the responsibility of selecting or supervising the tools and equipment which are used by the employee and of taking any such steps as may be reasonably required to prevent the use of tools and equipment which expose the employee to avoidable risks. But for the special circumstances and conditions governing the employment in this case of the appellant by the respondent, I should have been of the opinion that there was sufficient evidence to enable the jury to find that the risk of injury to the employee would have been reduced by the use of a double-pronged hook and to find that the respondent was negligent in not providing a double-pronged hook or in not insisting upon its use or, at least, advising that it should be used. But, in my opinion, the special circumstances were such that the general rule that the provision of suitable equipment and tools is the responsibility of the employer and not of the employee cannot have any application in the determination of the question whether or not a finding was open in this case that the respondent had failed in this respect to exercise reasonable care for the safety of the appellant. The question is one of the reasonableness of the respondent's conduct and this cannot be considered as an abstract question but must be considered in relation to the circumstances which were present. It had long been the practice for the wharf labourers to provide themselves with hooks selected by them. This is what the appellant did. On the day on which the accident occurred he did not bring with him to the wharf some implement of an unusual or peculiar kind which might have been expected to invite the scrutiny of a prudent employer and an investigation of its suitability for the task in hand. On the contrary he brought a hook of a kind which was regularly used by the wharf labourers in such work. In the circumstances, even if a finding were open that it was practicable for the respondent to insist upon the use by the appellant of a double-pronged hook, a finding was not open, in my opinion, that the respondent was reasonably required to do this in order to fulfil its duty to take reasonable care for the appellant's safety. (at p183)

6. I am of the opinion that the Full Court of the Supreme Court decided correctly that a finding of negligence was not open on the evidence and I would dismiss the appeal. (at p184)

Orders

Appeal dismissed with costs.