Glover v Australian Ultra Concrete Pty Ltd - [2010] NSWSC 1006

No judgment structure available for this case.

CITATION: Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006

HEARING DATE(S): 29 June 2009 to 10 July 2009, 18 March 2010, 28 April 2010, 14 May 2010

JUDGMENT DATE :
10 September 2010

JUDGMENT OF: Harrison J

DECISION: Direct the parties within 14 days to bring in short minutes of order to give effect to my findings and conclusions.

CATCHWORDS: NEGLIGENCE – industrial accident – personal injuries – slip and fall sustained by factory manager - where slurry created as by-product of concrete cutting in factory – slurry deposited on floor where workers required to stand and work – slip hazard not avoided by institution of a safe system of work – unsafe system of work - breach of duty to provide a safe place to work

LEGISLATION CITED: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1967-68) 122 CLR 649
Occupational Health and Safety Act 1983
Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990
Shops and Industries Act 1962
Workers' Compensation Act 1987

CATEGORY: Principal judgment

CASES CITED: Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80
Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183
Kallouf v Middis [2008] NSWCA 61
Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249

PARTIES: David John Glover (Plaintiff)
Australian Ultra Concrete Pty Ltd (Defendant)

FILE NUMBER(S): SC 1995/32519

COUNSEL: P N Khandhar (Plaintiff)
D J Russell SC (Defendant)

SOLICITORS: Willis Lawyers (Plaintiff)
Sparke Helmore (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

10 September 2010

1995/32519 David John Glover v Australian Ultra Concrete Pty Ltd
JUDGMENT

1 HIS HONOUR: David Glover alleges that on 1 May 1994 he was injured during the course of his employment with the defendant at its factory at Rutherford. He brought proceedings in 1995 claiming damages for the injuries he had sustained. The hearing commenced before Newman J in Newcastle on 21 August 2000. Mr Glover was then legally represented. His Honour found a verdict for the defendant. Mr Glover successfully appealed to the Court of Appeal: see Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. Mr Glover appeared for himself on the appeal. The Court of Appeal set aside the verdict below and ordered a new trial.

Introductory remarks

2 Mr Glover was born in the United Kingdom in January 1945 and is accordingly now 65 years of age. He is a citizen of the United Kingdom currently domiciled in Australia. He has no legal training and professes no legal expertise. His new trial commenced before me on 29 June 2009 and he once again appeared for himself. It originally proceeded in that way for nine days until 9 July 2009. Things then started to change.

3 As the transcript will reveal, I had on several occasions encouraged Mr Glover to seek legal advice concerning his case. This was most significantly and obviously for the reason that the manner in which he was attempting to conduct the proceedings was by any objective measure confused and confusing, ill directed and rapidly became unnecessarily pedantic and time consuming. Mr Glover risked doing himself and his cause a considerable disservice by his steadfast insistence that he should continue to appear for himself and I regularly told him so in as many words. For example, on more than one occasion Mr Glover sought to prove, contrary to an admission by the defendant that it had been his employer when his accident occurred, that a different party had employed him. Having regard to the fact that he sued the defendant alleging that it had breached the duty it owed him as its employee, and in particular that there was no other defendant to his claim, the danger of adopting this course should have been obvious.

4 There are other examples of this as well. During the hearing Mr Glover became almost obsessional about impugning the credit of witnesses, even in circumstances where at the point of attack their evidence was arguably favourable to his case. A portion of the transcript during Mr Glover's cross-examination of Mr Higgins on the sixth day of the hearing demonstrates this tendency:

"HIS HONOUR: Mr Glover, it is not inconceivable that you could put forward an argument that the complaints by Mr Higgins - if I accept them - that the product produced by the factory after your accident was the reason for your dismissal, supports your contention that you were unable to attend to your work as a result of your injury… [couldn't you]?

PLAINTIFF: It is character again, your Honour.

HIS HONOUR: I don't know how you make your case out. All I am suggesting to you is that there is available to you on one view of the evidence an argument that the deterioration in the product was related to the injuries you had suffered, thereby enhancing the relationship that may have existed between your ability to work as a result of your injury or your inability to work as a result of your injury. In other words, it has nothing to do with Mr Higgins believability or his character, but is wholly supportive of your case. You have had this case for a long time, have you thought it through completely?

PLAINTIFF: Yes, your Honour.

5 Mr Glover's determination to remain unrepresented was to some extent understandable having regard to the fact that his previous experience with the legal profession and the legal process had undoubtedly, at least from his point of view, been most unsatisfactory. His only success of note had been when he appeared for himself. He also said that he could not afford a lawyer, although I am unaware whether he had sought representation on a no win, no fee basis. Unfortunately, before this position altered, Mr Glover had managed to tender a very considerable amount of material, much of which was of little, if any, relevance, which he had obviously accumulated over the 15 years since the events giving rise to these proceedings. Mr Glover gave me regular, if mostly inaccurate, assurances about the importance of this material. I intend by these remarks to express no criticism of Mr Glover at all. However, disposition of this case has been made to some extent more difficult and time consuming than it should have been.

6 By the tenth day of the hearing, which was 10 July 2009, it appeared that the evidence had been completed and that the parties were about to commence final submissions. Indeed, Mr Russell of senior counsel, who appeared for the defendant, had prepared and provided Mr Glover with the defendant's written outlines of submissions on damages dated 8 July 2009 and on liability dated 9 July 2009. However, before matters proceeded very far on that day, Mr Glover announced that he had seen a solicitor the day before and that he also had an appointment to confer with counsel the following week. Mr Glover sought an adjournment for the purpose of taking legal advice, which at that stage appeared to be limited to obtaining assistance with the preparation of written submissions and an oral presentation in support of them at some date convenient to the parties. In the circumstances I directed that Mr Glover prepare and serve his own written outline of submissions on all issues by no later than 30 July 2009. I adjourned the proceedings to 31 July 2009 for mention. The defendant did not strongly oppose this course. (The comments made by me on the ninth day of the hearing between transcript pages 309.33 and 311.44 should be noted as possibly informing, at least to some extent, the course that the proceedings took on the tenth day of the hearing).

7 In the events that occurred, Mr Glover had been unable by that adjourned date to arrange legal representation as anticipated or to furnish written submissions as directed. I therefore adjourned the proceedings again until 4 September 2009, by which time Mr Glover was still without legal representation. Accordingly, and somewhat optimistically, I adjourned the proceedings until 26 October 2009 "for continuation of the hearing", and directed Mr Glover to file his written submissions by 2 October 2009. The defendant was directed to respond in writing to those submissions by 16 October 2009. The defendant did not oppose this course.

8 For reasons that are not important to record, these directions were in due course overtaken by events. However, significantly, in the intervening period Mr Glover had instructed a solicitor, and Mr Khandhar of counsel had been retained to appear. Moreover, Mr Khandhar had also been able helpfully to prepare written submissions for Mr Glover, which were filed on 16 October 2009. The matter ultimately came back before me on 2 November 2009, at which time Mr Khandhar, with the benefit of further instructions from Mr Glover, sought leave to reopen his case, which I granted. I therefore directed that Mr Glover serve a further amended statement of particulars and any proposed addendum to the 16 October 2009 submissions by 13 November 2009. The matter was adjourned until 16 November 2009 for further directions. On that day the proceedings were at last listed for hearing of the foreshadowed further evidence and final submissions, on 18 March 2010. That is what happened. The matter was then adjourned part-heard until 28 April 2010 for consideration of some outstanding, but relatively minor, matters. On that day it was adjourned until 14 May 2010 for mention, on which date I reserved my decision.

9 I have related these facts at this time in order to emphasise in context the considerable assistance that I have received from the parties' respective legal representatives. At times when Mr Glover was unrepresented and floundering, and in circumstances where he was labouring under considerable personal, procedural and forensic distress, the defendant on no occasion sought to take advantage of these things but on the contrary cooperated and assisted Mr Glover and the Court in a most commendable fashion and smoothed the way for an efficient trial whenever and wherever possible. Although these things should go without saying, some reference to them in this case is important in my opinion. Also, when Mr Glover finally appreciated his need for professional legal representation, which resulted in Mr Khandhar being retained to appear for him, the manner of presentation of his case immediately changed. It became efficient and structured. This has obviously been of considerable assistance to me, as well no doubt to Mr Glover.

Background

10 Ipp JA at [4] in the judgment of the Court of Appeal in 2003 described Mr Glover's case in these terms:

"[4] … The appellant asserted that on 1 May 1994 he was injured in an accident that occurred while he was at work. He alleged that he slipped and fell on the concrete floor of the respondent's factory while assisting in the manufacture of concrete beams. He contended that his injuries were caused by the respondent's negligence or breach of statutory duty."

11 His Honour later described Mr Glover's version of what occurred, with the assistance of some reference to the original judgment of Newman J, in these terms:

"[8] The respondent manufactured pre-stressed reinforced concrete floor beams. The appellant was employed by the respondent as its factory manager.

[9] At the trial, the appellant testified that he was injured while working on a machine called a slide former. The slide former was mounted on rails along which it moved while producing concrete floor joists. Cement mix passed through the machine and was extruded underneath in such a way as to form concrete beams.

'9. The machine moves along an area which is some 110 to 120 metres long taking 2 to 2 ½ hours to complete its journey. Having completed its journey and having extruded concrete so beams are formed, is then lifted by a crane on to a parallel bed and the process is repeated as the machine travels in the opposite direction.

10. Between the two parallel beds exists an area which was variously described in the evidence some times as a channel but in fact appears to be merely a concrete divide. The beams which are created by the process are cut into required sizes which cause the concrete slurry to enter the divided area. As the machine moves along it is necessary for a person to clean the beams as they are created by using a steel trowel.

[11] It was the appellant's case at trial that on 1 May 1994 a Mr Scott Thompson was driving the slide former and he, the appellant, was standing in the divided area between the two beds, cleaning the freshly made concrete beams and covering them with plastic covers. At the time, there was concrete slurry on the floor of the divide. The appellant slipped and fell backwards as he turned to pull a plastic cover over some beams. He asserted that the divide had been made slippery by the concrete slurry.

12 Even though Mr Glover's case before me was not different to that just described, it is important to indicate the way in which I saw the case unfold. My own description of what occurred is as follows.

13 The defendant utilised a large machine known as a "slide former", which was a mobile device that produced extruded concrete beams in large production beds in its factory. The device was mounted on wheels that travelled upon steel rails. The rails were themselves set onto low preformed concrete structures or divides that extended almost the length of the factory. They were configured so that the rails ran along the top edges of each divide. These divides were also the physical structures that separated a series of production beds thus formed between them. The raised rail on each edge of these divides had the effect of creating a so-called channel or trough that extended along the length of the divide and between each rail. The evidence is ambiguous on the point but rails were either at 600mm or 770mm centres on the channel where Mr Glover slipped: compare in this respect exhibit "A" with exhibit "AE", which is the drawings annexed to the 24 March 2004 report of Mr Ward.

14 The slide former was loaded with premixed concrete through an integrated hopper mounted on top of it, which was then fed down through the machine at a predetermined rate onto carefully positioned groups of pre-tensioned steel reinforcing cables spanning the length of the production beds. The slide former started at one end of a production bed and travelled over these cables to the other end. The system anticipated that the machine would then be transferred to an adjacent bed so that the process could be repeated. The final product of these passes was a series of prestressed steel reinforced concrete beams, designed for use as floor joists, that were then left to dry or cure where they lay.

15 This technology was relatively new to Australia in the early 1990s. The process was and is for present purposes uncontroversial in general terms and is not criticised by Mr Glover as unsafe or dangerous as such. Indeed, the actual manufacturing process as so far described did not by itself cause the injury sustained by Mr Glover, even if on one view of the matter there were certain aspects of the defendant's system of using it at the time that were arguably or potentially dangerous and unsafe.

16 Mr Glover's complaints are effectively limited to certain events that sometimes occurred after fabrication of the beams. These complaints arise in the following way. At the time of Mr Glover's injuries, the factory in which the beams were manufactured had not been in operation for very long and it had only a limited capacity to produce beams of varying lengths. Until that situation was rectified, when further beds were subsequently constructed or completed, it was at times necessary to alter these longer or standard size beams to create smaller beams to accommodate specific customer requirements. The method that was used for this purpose was to cut the beams with a water-cooled concrete cutter or saw while the beams remained in situ on the beds where they had originally been formed. One consequence of this process was the production of slurry created by the admixture of concrete dust liberated in the cutting process and the water used to cool the saw as it did so. Part of the evidence in this case included very clear and helpful video recordings demonstrating the manufacturing and cutting processes to which I have referred, as well as a large number of still photographs. Having viewed the video I suggested the following summary of it to Mr Glover during his evidence in chief on the first day:

"HIS HONOUR: Why don't we have a look at the video silently. If we need to go back to portions of it for explanation, we will do that. I understand there's briefly a moving hopper on the top of a casting mechanism that passes slowly over reinforced steel placed in various configurations, depending upon the particular beams that were cast or proposed to be cast. They are of different sizes and the intensity and configuration of the reo, I assume, will differ according to the nature of the beam or beams being cast. These beams are of some considerable length but are cast in one length in anticipation of cutting when they have cured or set, and … the channels you have referred to, where I assume the slurry gathered, are channels between these particular runs of beam castings. Is that right?

17 Mr Glover's case proceeded upon the basis that the channels between the rails in which the slurry accumulated were also used as walkways or working platforms upon and from which workers in the factory, including him, were required to walk or stand in the course of their work. The evidence of Mrs Glover, who also used to work in the factory at the time and which is referred to below, makes it clear that the system then in operation employed the channel both as a walkway or platform for use by workmen as well as a drain for the collection and disposal of the accumulated slurry. As such, on Mr Glover's case, the system was definitively unsafe. He contended that the slurry was slippery and therefore dangerous and yet it was, or became, collected on the very structure from which he was required to work, and accordingly had to be removed from it.

18 The method adopted for removing the slurry was sweeping. However, Mrs Glover's evidence also makes it clear that even though the rails on either side of the channel operated as de facto edges or lips to retain the accumulated slurry, they were insufficiently high to permit safe - meaning immediate or contemporaneous - sweeping of the slurry to remove it whilst a production run was in operation. This was because doing so caused the slurry to wash over the rails and spill back onto the formed or forming beams, thereby potentially degrading the manufacturing process and hence the beams themselves.

19 Mr Glover alleged that nothing was done to rectify this problem, despite his complaints to management that there should be a system for draining the slurry between the production beds. Moreover, the slurry was, or tended to be, the same colour as the channels, making it hard to detect and more dangerous as a result. Work in the area of the extruded beams also had to be done quickly, having regard to the time it took for the concrete to go off, which Mr Glover argued added to the dangers. He also contended that the factory was extremely busy at that time and that as a consequence the defendant was understaffed. This meant that removal of the accumulated slurry was either not performed at all or was not performed in a timely way.

20 The defendant admitted that it employed Mr Glover but denied that it was liable to him for his injuries, either as a consequence of negligence or breach of statutory duty. It pleaded contributory negligence, effectively contending that the cleanliness of the factory and the removal of the slurry were matters that fell to Mr Glover to perform or arrange in his managerial capacity, which he failed to do. The defendant also contended that Mr Glover failed to keep a proper lookout or take adequate care for his own safety. An allegation of fraud, relying upon a suggestion that Mr Glover had not slipped as he alleged, but had been pushed over by his wife, was specifically withdrawn. Quantification of Mr Glover's damages remains in issue.

The plaintiff's oral evidence - liability

David Glover

21 Mr Glover commenced work with the defendant in November 1991, having been recruited to commission the Rutherford factory. By the start of 1992 the business appeared to be going well and orders began to increase. This meant a lot more recutting of beams. However, the defendant did not by then have in place what Mr Glover described as an incremental beam size system, where beams are in effect manufactured, in the sense of being almost immediately cut, to the correct size on the bed before being loaded into the yard, rather than being returned to the bed from the yard for cutting at some later stage. That is what happened in the present case because the yard was not big enough to take the number of beams they had to produce. Mr Glover's case was that the cutting of beams just after their production causes minimum slurry: see the report of Dr B N Emerson dated 17 November 2003 (Exhibit "AD") referred to below.

22 Mr Glover said this:

sic

23 Mr Glover said he proposed how the slurry could be disposed of by an appropriate drainage system but none of his suggestions was implemented. He said Mr Frost, a shareholder in the defendant and the brother of one of its directors, told him that the drainage could not be installed because it was too costly at that time. Mr Glover gave the following evidence:

24 By this time the factory was so busy that it was operating seven days a week. He asked for more labour but he was told that the company could not afford it. However, in the end production got up to such a point that Mr Glover was able to persuade the company to start a seven day roster system. That was in the February before his accident the following May. After the new roster system had been working for about two weeks, Mr Glover was directed to stop it because it was costing the company money. He said that the defendant realised it would have to pay penalty rates for the men working weekends, even though they had had two days off in the week. Mr Glover then described what happened:

"At the end of that month I was told I would have to use men from another company, which was Saddingtons, part-time, weekends. None of these men were experienced in the work we had to do. Normally we would have between eight and 14 men at the factory, experienced men. On the particular day of my accident I had only two experienced people out of six and I was rushing around doing about four jobs at the same time. I was having to assist the batch plant operator because the company had not purchased a water meter for the batch plant. I had to do the lab test cubes, I had to assist the machine operator because he was inexperienced at the time. I also then had to clean off the back of the beams that the machine was producing and pull off the plastic. That would normally take about four people to do this work and I was there doing it on my own."

25 Mr Glover then referred to the specific circumstances of his accident:

26 The operator referred to was Scott Thompson.

27 Mr Glover then tendered without objection the transcript of his evidence in chief given before Newman J on 21 August 2000. That transcript described the circumstances of Mr Glover's accident in some more detail than it was given before me. Some of that transcript, commencing at page 9, was as follows:

"Q. At the time of the accident what were you doing? …
A. I was cleaning of the back of the beams and pulling the plastic up. I was also controlling the batch plant as well.

*****

Q. What, then, did you do? We have got you at the back of the machine, you have got a steel float; what did you do?
A. When I cleaned the beams off I turned to pull the plastic, and that is when I slipped.

*****

Q. Now, if you had had additional men would you have had to do the job of cleaning the beams and also pulling the plastic up?
A. No.

Q. You have said that there was – I think you answered this question; I just forget – there was slurry in this channel?
A. Yes.

Q. Did that play any part in your having this accident?
A. Yes.

28 Mr Glover said, as the video of events in the factory depicting the cutting of beams was played in Court, that it "was the problems I was facing at the time". He said that "[i]n normal factories you don't recut beams". He confirmed that a part of the factory where he was shown to be standing in the video equated to the area he says he was standing, covered in slurry, when the accident occurred. The water was the result of the beam cutting process. He confirmed that the channel that separated the beds "was for walking on". It had a raised lip or flange created by the rails upon which the slide former travelled. There was no objection to this evidence given by Mr Glover as a commentary upon the video as it was being shown.

29 Mr Glover agreed in cross-examination that when he came to Australia he had an understanding that he would be in charge of the business of producing concrete beams. He agreed that it was part of his job to teach or instruct new employees how to operate the slide former and to perform the various tasks associated with its operation. He reaffirmed that the plastic cover over the formed beams was to slow the drying process in an open factory where wind or draughts might otherwise lead to the formation of cracks in the beams.

30 Mr Glover agreed that pulling the plastic over the beams was not a difficult or skilled task although he later said, "[n]ormally two people would do that". On the day that he slipped, however, he was doing it alone. On that day there were two beds in operation and his accident occurred between them. Both his feet were in the channel at the time. He said he "fell backwards onto the beams that were on the bed for recutting". He hit his buttocks, his back and his left shoulder. Mr Glover agreed that the channel between the two production beds did not get slurry on it from the actual movement and process of the slide former, but from the later cutting process. He also agreed that it was the slurry that came from Mrs Glover's first cutting operation that morning that he eventually slipped on. He said that he knew from his experience both that the cutting operation would produce slurry and that it would come to rest upon the channel between the two production beds.

31 Mr Glover explained that the sweeping process involved the use of a broom along the concrete channel, not a squeegee or similar as was suggested to him. He said that when cutting was taking place "there's always someone sweeping up at the same time, which on this day there was not". He said "[t]here was not labour to do it". He gave this evidence:

"Q. So it is not a difficult operation to clean the channel, is it?
A. No.

32 He then gave the following important evidence:

"Q. Had you looked at the channel, do you agree you would have been able to see the concrete slurry from Ronnie's cutting operation earlier in the morning; correct?
A. As I said, if the sun shines in the top end of that factory you can see it at times. Sometimes you don't see it.

Q. Did you think to yourself before you stepped on to this channel to do your work Ronnie was cutting here earlier this morning, there might be slurry here?
A. I was busy doing other jobs and I assumed that it had been cleaned up.

Q. Well, did you think to yourself there might be slurry here?
A. No, because normally if the experienced men are there it would have been removed.

33 Mr Glover agreed with the proposition that he was the person in charge of all six people working at the factory on that morning. He was the person who could direct them to do one job or another. However, he said that he could not get one of his wife's assistants "to come down and broom the channel clean" because if he "had done that and taken them off the job they were doing [he] wouldn't have got this urgent job out that day". He said it was that he "just … didn't have the staff to do it".

34 The following passage of evidence should also be noted:

"Q. So you were the person who decided to do this operation in a manner which, in hindsight, was an unsafe manner of work; correct?
A. No, I don't think so. I just didn't have the staff. Normally we would have 12 to 14 men. That particular day I only had six.

Q. So you knew that day that you didn't have a person available to do the brooming of the channel, didn't you?
A. I didn't have enough people period for the whole operation.

Q. So knowing that, I take it you were aware that slurry would still be sitting on the channel when you came to work there later in the morning; correct?
A. I didn't know, no. I didn't know if it had been cleaned up or not because I was busy doing other jobs, jobs that I shouldn't have been doing.

Q. You say you didn't know whether it was there or not; correct?
A. No, that's correct.

Q. You can't tell me now whether you saw it or not; is that correct?
A. No.

35 Mr Glover said he was wearing safety boots at the time, not trainers. He said he "had never gone into a work place without safety boots" and that he "was brought up in a very strict safety regime and [he had] never, ever worn trainers".

36 Mr Glover was also cross-examined on the issue of the number of personnel at work on the day in question, and upon his role in, and responsibility for, organising that as follows:

"Q. You've told me earlier that you didn't have enough men to do the job on this particular day; correct?
A. Yes.

Q. You were the person who had arranged for all these people to come to the factory in the first place, hadn't you?
A. I asked Mr Saddington and Egans to supply me with some men. I also asked another company, All Terrain, if I could have men, I required more men that particular day, but I couldn't get them, and I was also told the job had to be done at all cost.

Q. It was part of your practice, wasn't it, to ring men direct at home on the weekend and ask them would they be able to come into work?
A. Not normally. Normally I would have enough men.

Q. But when you didn't have enough men was it part of the way you operated that you would directly ring people at home and say, "Can you come in and help out"?
A. If someone didn't turn up, yes, I would.

Q. Well, on this particular day, the Sunday, did you ring around your contacts to see whether you could get more people to come to the job?
A. I did that on the Saturday. On the Sunday I couldn't get anyone because I tried everyone on the Saturday.

Q. You were the person in charge of everybody's safety on that Sunday morning, weren't you?
A. I was there to run the factory, yes.

Q. While people have to look out for themselves, you were the person who had the responsibility to see that the industrial operation being conducted was conducted safely; correct?
A. To the best of my ability, yes.

Q. Did you make an assessment that day that you had sufficient personnel to safely carry out these two operations of making new beams and cutting old beams?
A. I had the men I worked with and that's all I had. Whether I--

Q. I didn't ask you that. I asked you whether you made an assessment on that day that you had sufficient personnel to safely run your processes at the factory?
A. I knew I didn't have sufficient men to run the factory, but I was told the job must be done.

37 After his fall he stood up. He said, "I got up fairly quickly, and it was not until I almost got up that I realised that I had really hurt myself". He said, "I felt the pain but I got up and I tried to go forward again and that's when I had the severe pain in my back and leg." His wife drove him home. They are now divorced. Mr Glover agreed that he had threatened his wife with some sort of financial penalty if she did not give evidence to assist him in his case. He said, "I have had to, yeah, yes". He sought to explain this by saying, "Well, she expects to receive something from this, which the British court says she's entitled to, but she's not prepared to help". Mr Glover agreed that he had an arrangement with his former wife that she would receive 30 per cent "of any proceeds from this case".

Craig Carter

38 Mr Carter worked at the defendant's factory. He was not at work on the day of Mr Glover's fall. He did observe him at work on the following day. He said this:

39 Mr Carter was not cross-examined.

Julian White

40 Mr White said that he sometimes supplied labour to the defendant. He recalls being asked to do so for the day when Mr Glover was injured but all of his workers were employed doing work for his organisation on that day, so that none of them was available for hire to the defendant.

41 Mr White gave no other evidence of value or relevance. He was not cross-examined.

Aaron Clay

42 Mr Clay gave evidence that he saw Mr Glover on the day of his accident. He said he was fine in the morning but he later noticed that he was limping. His precise evidence on the topic was as follows:

43 Mr Clay was very briefly cross-examined in terms to which it is unnecessary to refer.

Allen Swan

44 Mr Swan was a forklift driver for the defendant. He was not present and did not see Mr Glover's accident on 1 May 1994. He was unsurprisingly also not cross-examined.

Andrew Leadham

45 Mr Leadham was a general hand employed by the defendant. He was not present at the factory on the day of Mr Glover's accident. He continued to work for the defendant until November 2008. He was asked and answered the following question without objection:

46 Mr Leadham was not cross-examined.

Ross Giddins

47 Between 1971 and August 1994 Mr Giddins was the general manager of Haxton's Haulage. He was in charge of running that company. It had approximately 70 employees and 40 vehicles in its fleet. It was contracted to the defendant to carry its products throughout New South Wales. He agreed that the yard of the factory was kept neat and clean.

48 Mr Giddins was not cross-examined.

Paul Cormick

49 Mr Cormick was employed by the defendant between about 1991 and 1994. He described his role there as follows:

50 Mr Cormick was not cross-examined.

Stephen Fitzsimmons

51 Mr Fitzsimmons worked for PW Saddington and Sons between approximately 1990 and 2004 and was occasionally seconded to work for the defendant at the Rutherford factory. He was never contacted either by his employer or the defendant about Mr Glover's accident.

52 Mr Fitzsimmons was not cross-examined.

Rudy Kress

53 Mr Kress is dead. His affidavit sworn 7 June 2002 was read, significantly without objection. Its only present relevance is that Mr Kress said that at no time had it ever been suggested to him that Mr Glover's accident did not occur at work. He said that the proposition that Mr Glover was injured at work "was a fact well known to everyone".

54 At the close of the evidence on the third day of the hearing I also made the following inquiry of Mr Glover:

"HIS HONOUR: Just remind me, who do you say were, if anybody was, a witness to what happened, who actually saw what happened? Is there anybody?

PLAINTIFF: The nearest one is Mr Clay.

HIS HONOUR: He said he looked up.

PLAINTIFF: Yes, looked up and saw me getting up.

HIS HONOUR: But we don't have a witness who saw what happened.

Stephen Reece Frost

55 Mr Frost was a qualified engineer, a director of Quarry Products Pty Ltd, which company was itself a shareholder in the defendant. He was involved with Mr Glover originally in setting up the factory at Rutherford and the production processes to which I have referred. He agreed that the beds were steel trowel finished and had no fall for liquids to flow or drain away. Although he could not be certain of the reason, Mr Frost also agreed that in 1993 and 1994, no system for drainage had been installed.

56 Mr Frost was not cross-examined.

Alan John Morrison

57 Mr Morrison is the general manager of the defendant. He joined the defendant in 1996. He was asked no question that was relevant to any issue I am required to determine and he was understandably not cross-examined.

Veronica Gladys Glover

58 Mrs Glover was employed as a despatch clerk by the defendant between 1991 and 1994. She performed many tasks in that role. She gave uncontradicted evidence that producing prestressed concrete beams was a dangerous trade requiring skilled and experienced people. She agreed that the defendant's method of taking on labourers in 1994 meant that Mr Glover might not know who would turn up for work or what skills they possessed each day. She agreed that Mr Glover attempted to overcome the inexperienced staff problems by introducing a seven-day roster system. However, Mr Saddington discarded this system after only one month of its operation.

59 She said that she believed that Stephen Frost and Mr Glover attempted to introduce a drainage system for slurry on the production beds. She agreed that it took the defendant over two years to obtain the water meter that Mr Glover requested for the batch plant and over four years to set up the incremental beam stock system. She said that re-cutting beams was a dangerous work practice. She agreed with the general proposition that the work that was being carried out on the day of Mr Glover's accident was urgent.

60 Mrs Glover then gave this evidence:

"Q. At around 9.30am did you see me slip and fall, injuring my back while working at the rear of the slide former?
A. No.

Q. Could you please tell the court how you became aware of my accident?
A. I looked up, because I was lifting five tonne of concrete beams, to see where I was going to place these beams and you were walking up the factory bed.

Q. Did I approach you and say that I had slipped over and hurt my back?
A. Yes.

*****

61 Mrs Glover gave this evidence in cross-examination:

"Q. To recut the beams one of the things you had to do was operate a crane which would be used to grab the beams and lift them up; is that correct?
A. That's correct.

Q. And were the beams lifted up and put on a production bed that wasn't being used so they could be cut?
A. When you're lifting beams from a bed it means that I have cut them specifically to size for orders. They then are lifted off of the beds, put on to the factory floor waiting for the forklift driver to lift them and take them out into the yard for storage.

Q. To cut the beams while they are sitting on the bed you have to use a large industrial saw; is that right?
A. That's right.

Q. You were a person who had done that job on many occasions prior to this particular weekend; is that right?
A. That's correct.

Q. That saw had a spray of water to cool the blade as the blade spun and bit into the concrete and the reinforcing; is that correct?
A. That's correct.

Q. Am I right that when the blade cut the concrete beams that cement dust was produced which mixed in with that spray of water?
A. That's correct.

Q. Did the mixture of cement dust and water produce a cement slurry?
A. That's correct.

*****

Q. Am I right that when the cement slurry was produced by the cutting process that it was deposited not on the production beds but on a channel which was a level strip of concrete which separated two production beds?
A. That's correct.

62 Mrs Glover agreed that it was not necessary to stand on the channel or on the floor of the factory to do this cutting operation. She gave the following evidence about what happened next:

63 Mrs Glover then gave what I consider to be crucial evidence in Mr Glover's case. It was as follows:

"Q. Well, there were two separate clean-ups, weren't there, in this sense, that after you make beams on the production bed, cut them and lift them off, you need to scrupulously clean the production bed before you can do the next run. Is that a correct way of putting it?
A. That's correct, yes.

Q. Then on the channel itself which is adjacent to the production bed, you also need to clean that up, don't you?
A. Yes, but that's very difficult to do because you can't clean that slurry while the bed is being run on the next bed because of making a mess and creating rubbish for the new beams.

Q. So if you try and clean the channel with a broom while production is going on on the adjacent bed you might cause problems, am I right, because you might push some of the slurry on to the adjacent bed which is being used for production?
A. That's correct, yes.

Q. So was the practice to wait until the adjacent production bed had ceased production before you cleaned up the channel by brooming the slurry away?
A. That's right.

64 She said that slurry could be very slippery but that it eventually dries to a thick paste. She agreed that she had done the cutting operation many times before and that she had had to walk on the channel which had slurry on it to do cutting of beams on prior occasions. With respect to the slipperiness of the slurry she said "[y]ou get adjusted to it and you know how to walk so that you don't slip". She added, "[h]opefully you don't slip".

65 Mrs Glover was taken to the day of Mr Glover's accident. She gave this evidence:

"Q. What was the first job that you started working on that morning?
A. Cutting the bed number 2, I believe it was.

Q. Now, was that a bed of beams which had been manufactured the previous day, the Saturday?
A. That's correct.

Q. So they had dried and cured and they were ready to be cut, is that right?
A. Yes.

Q. You used the saw which runs on the rails either side of the production bed to do your cutting, is that right?
A. That's correct.

Q. And in doing that, you created concrete slurry which then came to rest on the channel, is that correct?
A. That's correct.

66 She gave more, important evidence as follows:

"Q. Scott Thompson was operating the slide form on that morning, wasn't he?
A. Yes.

Q. Mr Glover was doing a number of jobs but one of them involved being at the back of the moving slide former, is that right?
A. That's correct.

Q. At the back of the slide former, he was doing two jobs there, one was de-dagging the beams and the other job was pulling the roll of plastic over the freshly formed beams, is that correct?
A. That's correct, yes.

Q. And to do both those jobs, he had to stand on the channel which I presume was between bed 3 and bed 4, is that right?
A. That's correct.

Q. The slurry that you had created was still there at that time, is that right?
A. That's correct.

Q. You hadn't been able to broom it away because on the bed adjacent to your cutting operation, this operation of the slide former was going on, is that right?
A. That's correct.

Q. So you couldn't broom the slurry away from the channel between beds 3 and 4 because there was a risk that you might have broomed some of it into bed number 4 and that would cause production problems, is that right?
A. That's correct, yes.

67 Mrs Glover was then directed to the issue of Mr Glover's footwear. She gave this evidence:

"Q. Can I just ask you about Mr Glover that morning. He came to work fit and well, is that right?
A. Yes.

Q. Is it correct that he was not wearing safety boots that morning but rather he was wearing trainers?
A. That's correct.

Q. And when he said to you, "I slipped over on the bed and hurt my back", did you say something to him about it not being surprising because he had been wearing trainers?
A. That's correct.

68 Mrs Glover did not see what happened, but from what she saw and heard after she understood it to have occurred she said she was convinced that Mr Glover had had an accident. He was bent to one side and was holding his back.

69 Mrs Glover was also asked about the allegation that Mr Glover had said that she had pushed him over. She said that she had never heard that until 2000, or at least six years after the incident, when it was suggested to her in a solicitor's letter that she received "from the last court hearing". She was asked directly whether or not she had pushed her husband over and injured his back. She replied, "No, I did not". That answer was never challenged. This evidence was effectively the death knell of the fraud allegation, which was quite properly withdrawn the following day: see transcript 297.27.

70 I then asked Mrs Glover some questions. They were as follows:

"Q. You have referred to structures in the factory that you have referred to as channels?
A. Yes.

Q. We have heard of those in evidence given earlier in these proceedings by other witnesses, you can accept that?
A. Yes.

Q. And I think when we talk of channels, we are talking of raised concrete structures that run the length of the factory and separate the production beds, is that correct?
A. They're not raised. They are a dip between the rail lines where the slurry sits.

Q. I understand. We have some photographs that have been tendered in evidence and the photographs appear to me to show that the channels have a raised edge or lip running down each side of them. Do you agree with that?
A. I'm not quite sure what you are saying, a lip. The only thing I can remember is the railway line, the rails that the machinery sat on.

Q. Yes. The railway lines or the rails appear from the photographs to be raised above the flat surface of the top of the channel. Do you agree with that?
A. Yes, yes.

Q. And when the slurry was deposited upon the channel did it lie between the raised rail on either side of it?
A. That's correct.

Q. And as far as you can recall, was the system to sweep the slurry along the length of the channel retained on either side by the raised rail at each edge?
A. That's correct.

Q. During the time you worked at the factory were the channels used as a walkway?
A. Yes.

*****

Q. Let me ask you this. For the purpose of carrying out dedagging work on freshly formed beams, would the channels be used as an access or walkway for the workmen to stand on for that purpose?
A. That's correct.

71 Mrs Glover reaffirmed in re-examination her recollection that Mr Glover was wearing trainers at the time of his accident. This led to an application by Mr Glover to give further evidence himself on the issue of his footwear. Considerable debate about this occurred on the ninth day of the hearing. Mr Russell acknowledged that in the absence of any other evidence on the issue, my decision about Mr Glover's footwear came down to a contest between the evidence he gave about it and the evidence given by Mrs Glover. The issue was relevant to the question of contributory negligence in the first instance and Mr Russell bore the onus of proof on that issue.

72 Mr Glover also sought to recall Mr Clay to give evidence about this topic, even though he was not, but arguably could and should have been, asked to do so when he gave his evidence. Ultimately the heat went out of the issue, if it did not completely evaporate. Mr Clay was contacted by telephone and it became an agreed fact in the proceedings that if recalled he would have given evidence in or to the effect of the following. First, he could not remember what Mr Glover was wearing on 1 May 1994. Secondly, he could not recall Mr Glover wearing any footwear in the factory except safety boots. Thirdly, he could not recall anyone wearing any footwear in the factory except safety boots.

73 The defendant's final submissions on the issue of contributory negligence continued to rely upon Mr Glover's alleged failure to wear safety boots as an example of his own negligence. This approach necessarily included a contention that I should find as a fact that Mr Glover was wearing trainers and implicitly included as a condition of success a recognition of the fact that I would need to prefer Mrs Glover's evidence on the issue on the one hand over the agreed effect of the evidence of Mr Clay in combination with the vehement evidence of Mr Glover himself on the other hand. This issue is considered in detail later in these reasons.

The defendant's oral evidence - liability

Scott William Thompson

74 Mr Thompson is a fitter by trade and commenced work for the defendant as such in 1991. He did not see Mr Glover's accident and had no recollection of being told about it. He did recall Mr Glover coming to work on occasion when he was "sort of hunched over". He gave the following evidence about the operation involving the use of a roll of plastic to cover the drying beams:

"Q. Do you remember in the early days of working on the slide former there was plastic which was pulled over the beams shortly after they'd been formed?
A. Yes.

Q. Did you ever do that job?
A. Yes.

Q. In the early days, was that role of plastic attached to the machine or was it separate?
A. Separate.

Q. Did the roll just sit on the bed?
A. It did.

Q. Were you required to push or pull the roll over the newly formed beams to cover them?
A. That's correct.

Q. When a bed was in its initial stages, that is, the slide form was just starting up one end of the bed, was the roll of plastic very large?
A. It was.

Q. How many people did it take to put the plastic over the bed at that stage?
A. Two.

75 He also gave the following evidence about the need to cut beams:

"Q. Can I just take you back to your early time there. Was there a need from time to time to cut concrete beams to particular sizes?
A. That's correct.

Q. Was that done using a diamond saw?
A. Yes.

Q. And was that diamond saw water-cooled or was there water involved?
A. Yes.

Q. Where was the cutting done?
A. In the early days it was done on the bed beside the one we were casting on.

*****

Q. You have mentioned water being involved. What used to happen so far as that water was concerned when you did some cutting of beams that were sitting on a production bed?
A. There would be a lot of slurry in the alleyways between the beds and you were required to sweep it.

Q. Did you?
A. Most of the times, yes.

Q. Who had required you to sweep it?
A. It was a directive from management.

Q. How many beams were cut from time to time on the beds?
A. Could be anywhere up to a hundred beams or more.

Q. How long would an operation take which involved cutting a hundred beams?
A. Could take from 30 minutes to a couple of hours, depending on what odd sizes there were.

Q. Did that sort of operation produce a fair bit of slurry?
A. It did, yes.

Q. How many sweep-ups of the slurry would there be if you were cutting a hundred beams?
A. You would probably just do it after you cut the hundred beams.

Q. Where did you sweep the slurry to?
A. Just to the ends of the bed into a drainage system.

Q. What happened to it then?
A. It went through some recycle pits.

Q. So there was no drainage or grate on this channel in between the beds?
A. No.

Q. It was smooth?
A. Yes.

Q. The slurry would be broomed down to the end of that channel and the end of the beds?
A. Yes.

76 Mr Thompson was cross-examined by Mr Glover in terms to which it is generally unnecessary to refer. He was, however, directed to some portions of a transcript of his evidence given before Newman J at the original trial. In re-examination, Mr Russell also directed his attention to the following further portions of that transcript to which Mr Glover had not taken him when giving evidence before me:

"Q. Can you look, please, at page 81 of that transcript?
A. (Witness complied).

Q. Do you remember you were asked to read the first half of that page to yourself?
A. Yes.

Q. And do you remember you were then asked to say whether you accepted that that evidence was true and correct?
A. Yes.

A. That's correct.

Q. Does that suit your memory today?
A. Yeah, that's what I recollect.

'Q. Do you ever allow slurry to build up over a period of a couple of days?
A. Never.

Spencer George Higgins

77 Mr Higgins became a director of the defendant in 1991. He recalled that Mr Glover was engaged from overseas to become the factory manager. Mr Higgins took no part in the actual running of the industrial process in the factory. He understood Mr Glover's role "was to train Australians to run the factory and also to help to commission the factory and to run the factory and he was also responsible as a manager for safety". Mr Higgins was not present at the factory when Mr Glover had his accident. However, he later saw him limping.

78 At the time that Mr Higgins gave his evidence before me, the defendant's allegation of fraud, based on the proposition that the real cause of Mr Glover's fall was that his wife had pushed him over, had not yet been withdrawn. Accordingly, Mr Higgins gave evidence (which was then relevant to a fact in issue) of a conversation with Mr Glover when Mr Glover is alleged to have related such a version of what happened to Mr Higgins. Simply as a matter of record, that evidence was as follows:

"Q. So you said something to him, did you?
A. I said, "What happened to you, David?"

Q. What did he say to you?
A. He said, "Ronnie pushed me over."

Q. Who did you understand Ronnie to be?
A. Ronnie was his partner.

79 In the circumstances referred to earlier, the allegation of fraud based upon proof of that version was withdrawn by the defendant and is no longer part of this case. It is, therefore, unnecessary to consider further any of Mr Higgins' evidence that dealt with it.

80 Mr Higgins said that in March 2008, Mr Glover visited him at his home in England. The visit lasted for about half an hour. Mr Higgins said that Mr Glover told him on that occasion that if he "turned up in Australia" he would have his passport taken away.

81 In cross-examination by Mr Glover on a relevant issue, Mr Higgins gave the following evidence:

"Q. … Is it true that you placed orders for cutting beams at lunch time most days ordering that the beams be cut that day, loaded that evening and delivered to site the next morning?
A. I expect I did occasionally, not all the time. I would give you as much notice as possible. That I don't always control. I would ring you and say, "Is it possible, David, to get this out by this time?" Then I would adjust the site programme accordingly.

Q. Mr Higgins, I put it to you you would say these beams have to be on site at this time?
A. Not always. Sometimes I probably did, yes.

Q. Even though you knew we were short-staffed?
A. Yes.

82 Mr Higgins was also cross-examined by reference to diaries that are in evidence to suggest that beams needed to be cut or re-cut quite regularly in the period leading up to and including the date of Mr Glover's accident. It does not seem to me to be an overstatement of the effect of Mr Higgins' responses to this line of questioning to say that he did not disagree with it.

83 Finally, Mr Higgins gave this evidence:

William Birkenhead Saddington

84 Mr Saddington is a director of the defendant. His role "was primarily to manage the office procedures, the accounting, the quotations, tendering, and just general directorship". When Mr Glover arrived in Australia to take up his job, the factory was still in the course of being completed. The building was there but the production beds for producing the concrete beams were still being set up. He said Mr Glover's "duties were to work with getting the factory together, making sure that the equipment and the plant was in order, working and operational, and employing staff to run the factory". Mr Glover got the business to the stage of the beam production becoming operational and then continued on in a role as production manager.

85 He said that once the factory was operational and making product, Mr Glover's duties "were to run the factory, to organise the production of the beams, the maintenance of the machinery, the dispatch of the product, the storage of the product, just everything to do with the factory operation". He was also engaged to employ staff as and when necessary. He gave the following evidence:

"Q. You were at the factory every day?
A. Yes.

Q. Did you have much contact with Mr Glover?
A. Yes.

Q. When decisions had to be made about staffing or about production, did you play a part in those decisions?
A. We had discussions from time to time about what was necessary. If there were things that needed to be discussed on a company basis or production basis, he would run it past me, yes.

Q. In the early years of production, were there permanent staff who worked in the factory?
A. There were some permanent, but there were also some casuals.

Q. Where did the casuals come from?
A. They either came from labour hire or, if one of our other companies had labour staff, they would come from there to work.
Q. Was that a Saddington company?
A. Yes.

86 Mr Saddington confirmed that after his accident, Mr Glover appeared to be a little slow to move around. He gave this evidence:

"Q. Was there any conversation about how he had suffered this disability?
A. The discussions I heard from Dave was that he fell over in the factory, stepping off a bed, I think he said.

87 The defendant called no other evidence on the question of liability and did not tender any documents on that issue either.

Liability - consideration

88 On the third day of the hearing I enquired of senior counsel for the defendant about the extent of the remaining dispute between the respective liability experts, being Dr Emerson and Mr Ward for Mr Glover, and Mr Dohrmann for the defendant. The following discussion is instructive:

"HIS HONOUR: What's the status of the difference or differences between the safety experts in this case? I know Mr Glover's case is that he slipped while standing on the channel. There are several very good pictures of the channel. It's clearly steel trowelled or equivalent and the allegation is, apart from the statutory counts, the significant allegation is, I suspect, there should have been rubber mats of the sort that we are usually familiar with that would have made it safer or something similar. What's the status of the differences between the experts on the issue of the safety of the surface of the channel?

RUSSELL: There is not a great difference. Our expert says, well, it's a wet process and you have to expect water to be there from time to time but he also acknowledges that slurry is dangerous and slippery and oughtn't to be there. So there is not a great difference between them.

HIS HONOUR: Again without binding you, on the basis of that frank statement of the differences and subject to the fraud issue there may be no difference between you.

RUSSELL: In practical terms I think that's probably right. I would need to review Mr Dohrmann, but I think that's right.

HIS HONOUR: I haven't a view about this and I haven't read the experts' reports, but I might ask you to see if you can seek some instructions about whether there's likely to be any review of the defence denial of the breach of duty, putting it as neutrally as I can.

RUSSELL: I will have a look at that, your Honour. There's an ultimate problem with that in that accepting that water and slurry is potentially dangerous and shouldn't be there and should be broomed out of the way, that leaves the question of, well, whose job was it to do that, and our answer to that is Mr Glover.

HIS HONOUR: That goes to contributory negligence, doesn't it?

89 Mr Russell indicated on the fourth day of the hearing that he no longer required Mr Ward to attend for cross-examination. Dr Emerson was not cross-examined either.

90 Both Mr Glover himself and Mr Khandhar in his written submissions either accepted or embraced as accurate the following general description of the way he put his case:

"HIS HONOUR: … My present understanding of your case is that it was unsafe for the defendant to maintain a channel or channels adjacent to the beds, which channels were ungraded or otherwise configured to facilitate the removal of excess or unwanted liquids; that they were excessively smooth, steel trowelled; that the ambient dust created by the cutting operation when mixed with the cooling water from the cutting machine created a slurry that was projected directly on to that slippery channel; as well I suppose as a matter of common sense that the apparently raised lips of the channel facilitated a retention of that slurry, rather than its dispersal; and in the context that that channel provided a person doing the de-dagging or covering with plastic, the only access to that work, that in combination, was a dangerous system. Is that roughly your case?

PLAINTIFF: Yes, your Honour.

The liability experts

Dr B N Emerson

91 Mr Glover tendered Dr Emerson's report dated 17 November 2003. He inspected the defendant's premises on 21 October 2003. His report focussed primarily on the significance of slurry causing the surface of the channels to become slippery. It was his conclusion that the underfoot surface upon which Mr Glover was standing when he had his accident failed to meet minimum requirements and that it caused him to slip. He said it was "clear . . . that a hazard of a slippery underfoot surface existed at material times and a person stepping onto such a surface is in my opinion at significant and foreseeable risk of injury". Dr Emerson was not cross-examined.

Mr R Ward

92 Mr Glover tendered Mr Ward's reports dated 24 March 2004, 4 April 2004 and 30 May 2009. Mr Ward was of the opinion that the defendant did not provide safe working conditions or safe methods of working in that they failed to meet the requirements of the Shops and Industries Act 1962 or of the Regulations under the Occupational Health and Safety Act1983, ensuring safe working conditions or safe methods of working, because there were floor areas that were not drained clear and were therefore slippery. Mr Ward was not cross-examined.

Mr Dohrmann

93 Although Mr Dohrmann was referred to in discussions about whether or not he would be required for cross-examination by Mr Glover, the issue wholly receded in significance, as the defendant did not ultimately tender Mr Dohrmann's report.

The defendant's submissions - liability

94 The defendant's written submissions were divided into three categories – common law negligence, breach of statutory duty and contributory negligence. The defendant's submissions with respect to the first category were to the following effect.

95 Mr Glover was recruited from overseas to start up the defendant's factory. He was experienced in the concrete industry and was experienced in the use of slide formers. The directors of the defendant on the contrary had little or no such experience and relied upon Mr Glover to commission and run the factory. Mr Glover had the power to hire and fire staff and was responsible, presumably in the practical sense, for the safe operation of the factory.

96 Mr Glover knew that the process of cutting beams that were resting on the beds used a saw that was water-cooled and that the operation created slurry that became deposited on the channel between the two production beds. Mr Glover had a practice of keeping the factory clean and this included a worker pushing a broom down the channel on a regular basis to remove the accumulated water and slurry. Mr Glover's accident happened on a Sunday when the defendant had to make do with a limited workforce, including Mr Glover and his wife. Mr Glover attempted to obtain other workers for that day but was unable to do so, or was at least unable to get workers who would work past about lunchtime on Sunday.

97 Mr Glover and Scott Thompson were engaged in operating the slide former. Mr Thompson operated the machine and Mr Glover was de-dagging the formed beams and pulling up the roll of plastic over them. As well, Mr Glover was carrying out other duties including assisting Mr Clay with the batching operation and testing the concrete. Mrs Glover was at the far end of the factory cutting beams when the accident happened. She had, however, earlier been down at Mr Glover's end of the factory cutting beams and that operation had created the slurry that had settled on the channel.

98 Mrs Glover had to stand on the channel and on the slurry to use the saw. She had no problems doing so as she took care. Further, on her version, the channel could not be swept while production was occurring on an adjacent bed. The slurry was thus a usual feature of the production process, known to all who worked in the factory, including Mr Glover.

99 Mr Glover answered to Mr Saddington and the board. However, on the day in question Mr Glover was said to be "in charge" of safety in the factory. He knew or ought to have known that slurry had been created by the beam cutting operation and that it would need to be broomed away or that care would have to be taken until it was. The defendant contended that it was simply a matter for Mr Glover to direct one of the workers to spend a very short time to broom the slurry away. He did not do this. There were two other workers to whom that task could have been assigned.

100 The defendant submitted in such circumstances that it had not been negligent. It left the safety in the factory to its most experienced employee, who had the power to direct people as to how they performed their duties. Even though there were time pressures to finish the job that day, it could not be suggested that it was impossible to find someone to do the sweeping, which would only have taken a short time.

101 With respect to the second category the defendant submitted that none of the statutory provisions upon which Mr Glover purported to rely provided him with a cause of action. For example, s 22(1)(a) of the Occupational Health and Safety Act provides that nothing in Division 1 of that Act shall be construed as conferring a right of action in any civil proceedings in respect of a contravention of any provision of the Division, which includes s 15 upon which Mr Glover sought to rely.

102 Mr Glover also sought to rely upon certain provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990. The regulation is a regulation of the type referred to in s 22(2) of the Act, so that a breach of such a regulation does not give rise to a civil action.

103 He also sought to rely upon s 19, s 22 and s 34 of the Shops and Industries Act. The defendant submitted that s 19(1) had to do with cleaning factories generally, rather than the imposition of a specific requirement to remove any waste product from an industrial process while it is being carried on.

104 Subsections 22(2)(a) and (b) provide that where a wet process is carried on in a factory, the floor of every part of the factory where persons are employed shall be grated and drained so that liquids can easily run off. The defendant contended that using the saw to cut beams involved water-cooling of the blade, which is a wet process. That process was carried on on the spare casting bed, not on the channel between casting beds. Water then flowed from that place of work onto the adjacent channel. That wet process was carried on by people standing on the factory floor itself, rather than on the channel, to do the cutting. Section 22(2) requires drainage on the floor of that part of the factory where persons are employed in such process. That would require drainage on the factory floor, rather than in or for the channel. In any event, the defendant contended that Mr Glover was neither engaged in a wet process nor standing on the factory floor when he slipped so that s 22 has no application. Water that runs from the area where a wet process is carried out onto some other part of the factory floor, does not result in a breach of s 22(2): see Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 at 192E.

105 Section 22(4) of the Act requires that all floors be maintained in good order, condition and repair. In this case there is no suggestion that the channel was a "floor", or that it was otherwise than in good order, condition and repair.

106 Section 34 of the Act requires all floors to be of sound construction and properly maintained. The defendant submitted that the section had in terms nothing at all to do with the circumstances of this case. It contended that a failure to sweep slurry off an otherwise unexceptionable floor was not a breach of a section predicated upon notions of sound construction and proper maintenance of that floor.

107 With respect to the third category, the defendant emphasised that Mr Glover was the experienced person in the factory on the day that he was injured and had the power to direct how work was to be done. It contended that he should have been aware that the beam cutting operation had created slurry and that it had not been removed. Furthermore, when Mr Glover stood in the channel to do the de-dagging and the rolling of the plastic, he would have been standing in the slurry, which could not have escaped his notice.

108 The defendant submitted that I should find that Mr Glover was not, but should have been, wearing safety boots, rather than trainers as the evidence of Mrs Glover taken alone would suggest he was wearing. As a matter going to the question of any contribution in fact to the occurrence of the damage Mr Glover may have sustained because he was not wearing safety boots, Mrs Glover gave evidence that she had never experienced any problems working in slurry if such boots were worn.

109 With the exception of Godden, the defendant did not refer me to any authority in aid of any of its submissions in any of these categories.

Mr Glover's submissions - liability

110 Mr Glover's submissions emphasised the inadequate staffing levels as being at the heart of his case on liability. In short, Mr Glover was required to attend to an urgent order that necessitated working on a Sunday, but in circumstances where no workers who were available that day were prepared to work for the whole of the day. He submitted that Mr Higgins, for one, was well aware that he had directed that urgent work be done when he knew full well that insufficient staff were available, particularly in circumstances where a high percentage of the work involved re-cutting of beams and hence the production of slurry. Mr Thompson gave evidence that the slurry was not always swept out of the channels because there were not always enough workers to do it. The day that Mr Glover was injured was such a day. Mr Glover had asked Mr Saddington to employ extra labour on a number of occasions, but his requests were denied. The proposed seven-day roster system devised by Mr Glover and briefly implemented by the defendant was not maintained. Furthermore, an end product of this attitude was that there was a high turnover of workers and retention of suitably experienced workers became a problem.

111 All of the experts agreed that slurry was slippery and that it was dangerous to walk on. In these circumstances Mr Glover submitted that the casting bed gullies or channels should have been drained or swept so as to obviate the possibility that workers, including him, would be required to work on or walk over slurry at any time.

112 Mr Glover conceded that the provisions of the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 referred to by the defendant did not give rise to an independent cause of action. However, he maintained a submission limited to the proposition that establishment of the criteria with which the various sections deal amounted to prima facie evidence of negligence on the part of the defendant, which Mr Glover could call in aid in his case to establish a breach of his employer's duty at common law. The proposition is uncontroversial in general terms. He submitted that s 22(2)(a) of the Shops and Industries Act was "clearly breached".

190 The defendant also emphasised the following portions of the transcript of Mr Glover's cross-examination on this area:

"Q. Are you telling me that at night you cannot wash up two plates without getting pain?
A. When you cook there's more involved than just washing up plates.

Q. What is the answer to my question, Mr Glover. Do you tell me that at night you cannot wash up two plates without getting pain?
A. I could do, like I said cups, I could do two plates and that would be it.

Q. And you can do cutlery as well, can't you?
A. No, by the time you get down to cutlery and cooking utensils, no I can't.

Q. I didn't ask you about cooking utensils. You would be able to wash the two knives and the two forks and the two spoons from the evening meal, wouldn't you?
A. I would just about be able to do that, yes.

Q. And you don't try at the moment, do you?
A. I have tried many times.

Q. So you do the washing up at night, do you?
A. I said I have tried many times, not now.

Q. But have you done it?
A. Not lately, no.

*****

Q. How do you get to the shops?
A. I drive because it's only two minutes up the road.

Q. So you drive there?
A. To the shops, yes.

Q. Why did you feel the need to add to your answer "only two minutes up the road"?
A. Because it's close.

191 The defendant submitted that Mr Glover adopted an advocate's role in giving this evidence. It also drew attention to the following portion of Mr Glover's cross-examination:

"Q. I need to take you to a different matter. You told us that before the accident many of the domestic activities, particularly cooking, were shared 50:50 between yourself and your ex-wife, correct?
A. Yes.

Q. But isn't it the case that before the accident your ex-wife used to do much more of the cooking than you did?
A. I would say she most probably did more of it, yes.

Q. Not 50:50 she did more?
A. It was near enough 50:50.

Q. You remember, don't you, that from time to time you've provided particulars of your claim not just by filing documents in court but by sending faxes to Spark Helmore the lawyers for the insurer, correct?
A. Yes.

Q. Can I read to you from one of 2 July 2004, one of your faxes under the heading "particulars of claim for domestic assistance" you wrote this "cooking depends on what was cooked approximately 1 hour per day when on my own and approximately 15 minutes per day when with my wife, there were no children involved in our marriage". That's what is in your particulars back in July 2004. Is that accurate?
A. I'd say yes.

Q. Wasn't it the case that she did more of the domestic duties than you did?
A. I wouldn't say more. We did 50:50.

Q. But in relation to cooking when you were with your ex-wife you did cooking of about 15 minutes per day, is that right?
A. Maybe yes, maybe.

Q. That's what you said in the particulars. Were they right or wrong?
A. We would only have one meal in the day, in the evening and that was it.

Q. What I've read to you is from your particulars of July 2004. Is that right or wrong?
A. It could be more because like I said in those times I didn't take it exact times and minutes of what we did. I know we did it more or less 50:50.

Q. Does that mean your particulars you supplied in July 2004 in relation to the need for assistance with cooking were wrong?
A. I wouldn't say it was wrong. It's what I thought at the time because I know we did everything 50:50.

Q. But your particulars in relation to cooking rather suggest that you did 25% and your ex-wife did 75%. Isn't that what the particulars say?
A. Well, I know it was more or less like 50:50.

Q. But the particulars say something else, don't they?
A. Yes.

Q. And they were done now 6 years ago?
A. Yes.

Q. Is it also the case that when you were with your ex-wife she did more of the housework in terms of minutes or hours spent than you did?
A. I imagine she may have done a little bit more but as far as I know we did 50:50 because we were both working at the same time. I would do bits of the cooking, she would do bits. I would normally do the washing up at those times.

192 The defendant submitted that the evidence given by Mr Glover was exaggerated and was aimed at giving an impression of the need for domestic and related assistance that was far greater than the true position.

193 Mr Glover's partner Ms Lisowski gave evidence that she thought she could only continue to care for him for two more years at most. She has arthritis. She gave evidence that she spends ten minutes each day helping him shower and get dried, 20 minutes for each meal, or one hour per day, and 45 minutes per day ironing and washing. In cross-examination she conceded the following matters. First, that even if she lived in the house by herself, without Mr Glover, she would still have to clean her whole house. Secondly, the only extra cleaning of the house that she does is sometimes when Mr Glover has a flare-up of pain and sleeps in the second bedroom. Thirdly, when Mr Glover has a simple breakfast or lunch, he makes it himself. Fourthly, she spends 20 minutes each evening making his evening meal. Fifthly, the time estimates given by her were to clean the whole house occupied by her and Mr Glover.

194 In his report dated 17 August 2009 Professor Ghabrial said this:

"I believe that you [Mr Glover] require domestic assistance for two hours per day for cleaning, bed making, washing dishes, washing and hanging clothes and dealing with garden and yard activities."

195 Mr Glover gave evidence that he could do some cleaning, some bed making, some dishwashing and some washing and hanging out clothes. The defendant therefore contended that Professor Ghabrial's assessment was unduly generous, and an overstatement of Mr Glover's true needs.

196 The difficulty with any realistic assessment of claims such as the present, is that experts who proffer opinions are largely dependent upon reports of capacity provided by the claimant. In the case of treating doctors there is a not unusual and expected inclination to treat complaints and reports of the need for care and assistance at face value as genuine. Similarly, experts who are retained to assess the domestic and living conditions of a claimant are themselves reliant upon what they are told and make recommendations for care regimes that reflect the information that they receive. Even Dr Matheson for the defendant accepted Mr Glover as "a man of some disability", but said that it would not prevent him from doing some light reasonable work. Dr Matheson assessed Mr Glover's domestic needs as limited to help with heavy tasks.

197 In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1967-68) 122 CLR 649 at 662, Barwick CJ said this:

"The matter is somewhat different in the case of disbursements which are decided to be reasonably necessary for the continued life and health of the respondent and which flow from the injury inflicted upon him. In connexion with these, it can properly be said that they must be regularly and continuously disbursed and that the respondent must have the ready cash to disburse them. Yet the sum to be awarded in compensation is not calculable by any mathematical process. At best, it is and must remain a matter of judgment. First, the range of the recurrent amount likely to be reasonably required must be considered. The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent. The jury must be warned, in my opinion, against blindly accepting the views of the medical practitioners. What is reasonably required is a matter for the jury - or for the judge if sitting alone."

198 I have to assess Mr Glover's needs in the light of all of the evidence, including the evidence given by Mr Glover in the course of his cross-examination. I formed the distinct impression that Mr Glover's protestations of disability were exaggerated. I compared the evidence that he gave, of almost functional invalidity in the kitchen and the laundry, with his ability to conduct his own case in Court before me, where I observed him to stand for lengthy periods, moving and bending and dealing with heavy files and lever arch folders with little or no sign of restriction or discomfort. I am not legitimately able to substitute these observations for considered medical opinion and I do not propose to do so. However, it is well within my scope to compare the effort and the time that it takes to prepare a meal or to load dry clothes into a washing machine with the type of activities that I observed in Court. I have little doubt that Mr Glover's capacities, and his ability to attend to domestic and personal hygiene tasks in his home as part of his daily routine of living, were considerably understated by him in these proceedings. I feel in the circumstances inclined to reject as unpersuasive Mr Glover's answers to these questions given in cross-examination:

"Q. Can I suggest this to you, that you are capable of doing a lot more around the house than you presently do. Do you agree or disagree?
A. No, I disagree with you.

Q. I suggest to you that you could make some contribution each day to the housework but that you chose not to. Do you agree or disagree?
A. I disagree.

Q. And I suggest to you that you are doing little or no housework because Miss Lisowski simply gets in and does it rather than waiting for you to do it. Is that right or wrong?
A. That's not right.

Q. If you were on your own if you weren't with Miss Lisowski you'd have to fend for yourself, wouldn't you?
A. No, it's probably that if it wasn't for her I wouldn't be here I would most probably be in the UK most probably and members of my family would be doing it.

Q. If you were on your own for any untoward reason you would have to fend for yourself?
A. Yes, but I don't know how I would manage.

Q. But you could manage all these domestic duties by yourself if you took your time and were careful about the way you did them?
A. I don't think so.

Q. Don't you think if on your own nowadays you could probably manage with a cleaner coming in 2 days a week to do all the heavy work?
A. No.

199 Ms Gracey, an occupational therapist retained by the defendant, in a report dated 8 March 2010, considered that Mr Glover's needs did not exceed the six-hour threshold in s 151K(4). Mr Maddock, an occupational therapist retained by Mr Glover, said this:

"Q. In his home did you see any equipment of the kind that OT's prescribe?
A. No I didn't.

Q. But the home needs modification, doesn't it, particularly in the bathroom area?
A. Not extensive, standard sort of modification, things like rails, safety in the shower and things like that.

Q. But once he gets some of those modifications in the bathroom the rails and the shower stool and things like that he will be better to manage his own hygiene and showering for a start?
A. In most circumstances as long as he doesn't have a severe exacerbation of his symptoms and needs someone to actually assist him in those things.

*****

200 In my opinion, much of the assistance Ms Lisowski provided to Mr Glover would have been provided by her even if he had not been injured. I acquired the very distinct impression during the course of the evidence about this that Mr Glover's enduring attitudes to domestic tasks were not originally formulated in a social atmosphere of gender equality, and that his current views about who should bear the burden of them were still similarly influenced. Mr Glover gave me the impression that he wanted to convince me that he was so disabled that he could do almost nothing for himself around the house, and that he was prepared to allow others to believe the same thing so that his needs were met. I am not satisfied, however, that his domestic restrictions are as great as he portrays them.

201 Doing the best I can, I consider that Mr Glover's needs for domestic assistance in the past have been no greater than an average of 14 hours per week made up of two hours for garden and home maintenance, two hours for shopping assistance, seven hours for domestic assistance and meal preparation and three hours for personal care. This assessment also takes account of those services and assistance that would have been provided even if Mr Glover had not been injured. The claim is made from March 2001 until the present time at the agreed rate of $19 per hour for gratuitous care. The first six hours are not recoverable. The sum to which Mr Glover is entitled under this head is therefore arrived at as follows:

$19 x 8 hours x 9.5 years (494 weeks) = $75,088.

202 I award Mr Glover $75,088 for past domestic assistance.

Future domestic assistance

203 In my opinion on the balance of probabilities Ms Lisowski will continue to provide gratuitous domestic care and assistance for Mr Glover into the future. This is so notwithstanding the arthritis from which she suffers and its apparently deteriorating progressive state. However, this problem has existed for approximately 10 years already and Ms Lisowski has been able to provide assistance to Mr Glover notwithstanding. She has been able to complete a TAFE course in aged care and perform 120 hours practical experience for that purpose. She is relatively young and the level of her disability is not particularly great. The nature of the tasks that she has performed, and will continue to perform, are also not particularly arduous or strenuous, and do not involve heavy work as normally understood. I consider that Ms Lisowski will continue to perform these tasks, so that the need for commercially provided care and domestic services is in my opinion unlikely to arise.

204 Mr Glover is now 65 years old. He will require some level of care as the result of the normal ageing process. The defendant contended that his normal life expectancy must be taken to be reduced as the result of his Chronic Obstructive Pulmonary Disease as discussed by Associate Professor McKenzie in his 18 June 2009 report. At the age of 65, Mr Glover has a medium life expectancy of 20.68 years. The seven-year reduction posited by Associate Professor McKenzie, which is not otherwise contradicted in evidence before me, reduces that period to approximately 14 years. The five per cent multiplier for 14 years is 523.9. The defendant submitted that that should be further reduced to 10 years having regard to the combined effect of all these considerations. However, I consider that a life expectancy of 14 years is the appropriate one to adopt.

205 The weekly rate is $19 by eight hours per week or $152. That produces a sum for future gratuitous domestic assistance of $152 multiplied by 523.9 giving $79,633. In arriving at that figure I have also taken into account as best I can the expectation that many of the services for which Mr Glover claims damages under this head would have been provided to him even if he had not been injured and so are excluded by the force of s 151K(3). I have also taken account of the evidence that Mr Glover has what he describes as "flare ups" from time to time, about four times a year, when his levels of disability, and the consequent need for care and domestic assistance, temporarily increase. Account must be taken of the "give and take of domestic arrangements": see Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249.

206 I award Mr Glover the sum of $79,633 for future domestic assistance.

Past out-of-pocket expenses

207 It is unusual and regrettable that these amounts were not capable of either agreement or limitation. I am satisfied that the parties' respective legal representatives have commendably exhausted both their efforts and their influence in this regard.

208 Mr Glover's claim for out of pocket expenses is set out in a letter dated 30 April 2010, which became exhibit "AW". The claim for past expenses is as follows:

(a) Past pharmaceutical expenses: $25,020

(b) Past medical consultations: $8,861.75

(c) Costs of attending defendant's medicals: $12,448.40

209 The claim for pharmaceuticals was based on printouts from two pharmacies between 21 April 2007 and 29 April 2010 and 1 June 2009 and 30 April 2010. The defendant did not dispute that the cost of prescriptions for Oxycontin, Panadeine Forte, Tramal, Brufen, Codeine and Paracetamol were compensable. All other medicine dispensed was for unrelated conditions such as blood pressure or gout. The defendant was prepared to allow $20 per month for the claimed period or $3,850. There was no other evidence on this part of the claim.

210 The defendant accepts that it is liable to pay $7,915.50 for this part of the claim. The difference is accounted for by the exchange rate applied to sums in pounds sterling. I consider that $8,000.00 is a proper sum to allow.

211 There is no evidence to support a claim for travelling expenses to the defendant's medicals, assuming such a claim were otherwise viable. It should be rejected. Similarly, travelling expenses would fall to be considered as a cost in the proceedings and assessed as such. I reject that claim.

212 I am not, therefore, in a position to assess Mr Glover's claim for past out-of-pocket expenses beyond a total allowance in his favour of $11,850. There is no evidence that would permit me to conclude otherwise.

Future out of pocket and medical expenses

213 Any award under this head must be limited by reference to Mr Glover's life expectancy of 14 years. The defendant disputes the claim for future surgery.

214 In his 29 October 2009 report Dr Ghabrial said this:

"I discussed with [Mr Glover] the pros and cons of surgery in the form of disc excision and spinal fusion including instrumentation however we both agreed to leave things alone as there is no guarantee that will clear his symptoms".

215 The defendant accepts that the amount of $44,000 allocated to the cost of such surgery is otherwise reasonable.

216 The medical opinion discussed earlier was to the effect that Mr Glover should eventually come to further surgery in the form of decompression and a multilevel spinal fusion but the chances of success were not rated at anything better than 50:50. I have not had the benefit of adamant or convincing evidence from Mr Glover that he intends to submit to such surgery and in the light of the fact that Dr Ghabrial has not endorsed it as a likely source of improvement, I do not consider that Mr Glover is ever likely to have it performed.

217 I am prepared to allow pharmaceutical expenses in to the future at the rate of $20 per week, which equates to a discounted sum over 14 years of near enough to $2,500. I also allow one general practitioner visit per month, based on historical trends, at the rate of $55 per visit over the same period. This produces a calculation of $12.69 per week multiplied by 529.3 giving a total sum of approximately $2,500. There is a claim for psychiatric counselling but the evidence does not support such a claim.

218 Mr Glover also claims for aids and equipment and home modifications. This claim amounts to approximately $20,000. The details of these claims have been provided to the defendant. Having regard to the fact that the defendant has received the benefit of my conclusion that Mr Glover will not undergo a further operation, it does not seem to be unreasonable that it should bear the burden of the cost of aids and equipment designed to ameliorate Mr Glover's ongoing condition. There is little detailed evidence concerning these items although the occupational therapeutic opinion seems to provide a sufficient basis for my conclusions. I allow $20,000 under this part of the claim.

219 I am not prepared to allow any of the claimed sum of $20,570 for car washing. Even notorious motoring enthusiasts can live with a far less rigorous regime than weekly car washes at $30 per wash. The claim should in any event be subsumed in the allowance for garden and home maintenance or is otherwise de minimus and can be wholly disregarded.

Costs and interest

220 Senior counsel for the defendant has indicated that the question of costs should be deferred until each of the parties has had an opportunity to consider these reasons. That is particularly so in light of the fact that the Court of Appeal has delegated the task of who should pay the costs of the first trial to me, and I have not yet received any submissions concerning that question. I will consider the parties' submissions on any question of Mr Glover's entitlement to, and the calculation of, interest on any aspect of the damages that I have awarded that may arise at that time as well.

Orders

221 I shall do no more at this stage than to list the matter before me for further submissions on costs and interest, and any arithmetical matters that are thought to arise, at a time within the next fortnight suitable to the Court and to the parties, to be arranged in consultation with my Associate. My formal order in the circumstances will therefore be limited to the following:

1. I direct the parties within 14 days to bring in short minutes of order to give effect to my findings and conclusions.

**********

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Citations

Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006

Most Recent Citation

Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284

Cases Citing This Decision

1

Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284

Cases Cited

4

Statutory Material Cited

5

Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80

Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9

Roads and Traffic Authority of NSW v Lolomanaia [2001] NSWCA 268

CITATION:	Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1006
HEARING DATE(S):	29 June 2009 to 10 July 2009, 18 March 2010, 28 April 2010, 14 May 2010
JUDGMENT DATE :	10 September 2010
JUDGMENT OF:	Harrison J
DECISION:	Direct the parties within 14 days to bring in short minutes of order to give effect to my findings and conclusions.
CATCHWORDS:	NEGLIGENCE – industrial accident – personal injuries – slip and fall sustained by factory manager - where slurry created as by-product of concrete cutting in factory – slurry deposited on floor where workers required to stand and work – slip hazard not avoided by institution of a safe system of work – unsafe system of work - breach of duty to provide a safe place to work
LEGISLATION CITED:	Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1967-68) 122 CLR 649 Occupational Health and Safety Act 1983 Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 Shops and Industries Act 1962 Workers' Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Glover v Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80 Godden v Metropolitan Meat Industry Board [1972] 2 NSWLR 183 Kallouf v Middis [2008] NSWCA 61 Roads and Traffic Authority (NSW) v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249
PARTIES:	David John Glover (Plaintiff) Australian Ultra Concrete Pty Ltd (Defendant)
FILE NUMBER(S):	SC 1995/32519
COUNSEL:	P N Khandhar (Plaintiff) D J Russell SC (Defendant)
SOLICITORS:	Willis Lawyers (Plaintiff) Sparke Helmore (Defendant)