Housden v Boral Australian Gypsum Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0071

PAUL RAYMOND HOUSDEN	Appellant
v
BORAL AUSTRALIAN GYPSUM LIMITED (ACN 004 231 976)	First Respondent
- and-
BORAL PLASTER FIXING PTY LIMITED (ACN 004 111 479)	Second Respondent

S APCI 2014 0076

BORAL AUSTRALIAN GYPSUM LIMITED (ACN 004 231 976)	First Appellant
- and -
BORAL PLASTER FIXING PTY LIMITED (ACN 004 111 479)	Second Appellant
v
VICTORIAN WORKCOVER AUTHORITY	First Respondent
- and -
PAUL RAYMOND HOUSDEN	Second Respondent

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JUDGES:	TATE, SANTAMARIA & McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 April 2015
DATE OF JUDGMENT:	25 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 162
JUDGMENT APPEALED FROM:	[2014] VCC 850 (Judge Misso)

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ACCIDENT COMPENSATION – Appeal – Workplace injury – Decisive issue – Whether dominant manner of cutting plasterboard horizontal or vertical – Method of work found not to be as plaintiff described – No error demonstrated – Appeal dismissed.

APPEAL – Rehearing – Nature of rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings of fact glaringly improbable or contrary to compelling inferences – Fox v Percy (2003) 214 CLR 118 and Transport Accident Commission v Cuthbertson [2013] VSCA 29 considered.

COURTS AND JUDICIAL SYSTEM – Appeal – Whether new point or issue raised on appeal which was not taken at trial – Consideration of conduct of trial to determine whether new point raised on appeal – Whether new point taken on appeal could have been met by further evidence at trial – Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 applied.

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S APCI 2014 0071

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Uren QC with Mr A Ingram	Melbourne Injury Lawyers Pty Ltd
For the Respondents	Mr J Noonan QC with Mr D McWilliams	Meridian Lawyers Limited

S APCI 2014 0076

APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr J Noonan QC with Mr D McWilliams	Meridian Lawyers Limited
For the First Respondent	Mr R Gorton QC with Mr M Hooper	Thomson Geer

TATE JA:

I have had the advantage of reading, in draft form, the reasons of Santamaria JA. I agree, for the reasons his Honour gives, that the appeal should be dismissed.
I wish to make one observation of my own.
As his Honour makes clear, the judge below disposed of the proceeding by concluding that the dominant method by which the plaintiff undertook the cutting of plasterboard sheets was the vertical method.[1] He found that there had been only marginal use of the method described by the plaintiff in his evidence in chief, the horizontal method.[2] The plaintiff had alleged that it was the dominant use of the horizontal method that had placed undue strain upon his lumbar spine causing injury. He also alleged that Boral had required him to use the horizontal method after the change to the delivery arrangements. The judge’s finding, that it was the vertical method that was dominant, permitted him, appropriately, to reject the plaintiff’s case.[3]
[1]Housden v Boral Australian Gypsum Limited & Ors; Victorian WorkCover Authority v Boral Australian Gypsum Limited & Anor [2014] VCC 850 (‘Reasons’), [118]. I adopt the definitions used in the judgment of Santamaria JA and assume familiarity with those reasons.
[2]Ibid.
[3]With respect to the alternative case for the plaintiff, namely, that Boral was negligent or in breach of statutory duty by allowing even a marginal use of the horizontal method which was sufficient to trigger the injury to his lumbar spine, I agree with Santamaria JA that the plaintiff did not run the alternative case at trial and he should not be permitted to develop it on appeal when it cannot now be said that it could not possibly have been met by further evidence at trial: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51]–[52].
The judge approached the key issue of the method of cutting by saying:
The primary issue which I must firstly decide is whether Housden undertook the cutting of sheets in the way he described in his evidence or not. A finding in his favour will then require me to determine a number of other issues.[4]
[4]Reasons [23].
So much is unexceptionable. However he went on to say:
A finding unfavourable to him will not require me to consider any other issues raised in the two proceedings.[5]
[5]Ibid.
In my view the judge was wrong to fail to decide any of the other issues arising in the case. Santamaria JA has set out the numerous other issues that fell for decision, but were not decided by the judge, including whether the plaintiff was an employee of Boral or of Stebec or was an independent contractor, whether there was a breach by Boral or by Stebec of any common law or statutory duty to the plaintiff and whether there was any contributory negligence on the part of the plaintiff. The inevitable consequence of these issues not being decided at trial meant that, had it been shown on appeal that the judge’s finding with respect to the dominant method of cutting had been made in error, the proceeding would have had to have been remitted to the County Court.[6] On the remittal it may have been necessary for a further trial to be conducted and appropriate findings made. This would have led to the parties incurring unnecessary further expense. It would also have led to judicial time and resources being expended on a proceeding which had already occupied about 18 days of court time.
[6]It was accepted by Boral and VWA that, if the plaintiff’s appeal was successful, the matter would need to be remitted for the remaining issues to be determined.
In Kheirs Financial Services Pty Ltd v Aussie Home Loans Pty Ltd,[7] this Court, relying on observations of the High Court in Kuru v New South Wales,[8] said:
[7](2010) 31 VR 46 (‘Kheirs’).
[8](2008) 236 CLR 1, 6 [12].
Whether in any given case a trial judge should proceed to decide issues which, strictly speaking, do not fall for decision is a matter of assessment in the circumstances of the case. But it is an assessment which trial judges should be astute to carry out. This is consistent with the observation made by the High Court, with respect to intermediate appellate courts:
[A]lthough there can be no universal rule, it is important for intermediate courts of appeal to consider whether to deal with all grounds of appeal, not just with what is identified as the decisive ground. If the intermediate court of appeal has dealt with all grounds argued and an appeal to this Court succeeds, this Court will be able to consider all the issues between the parties and will not have to remit

the matter to the intermediate court for consideration of grounds of appeal not dealt with below.[9]
[9]Kheirs (2010) 31 VR 46, 70–71 [103] (citations omitted).

As emphasised in Kheirs, the question of whether to determine more than the decisive issue in a case will be a matter for the trial judge to resolve in the individual circumstances of the case. There can be no hard and fast rule of universal application. The judge here correctly identified the decisive issue. He also correctly determined the decisive issue. Nevertheless, in the circumstances of a lengthy trial, as occurred here, where evidence was called from multiple witnesses and the factual matrix was fully explored, in my view the judge should have proceeded to have decided the remaining issues beyond that which was decisive. He should have considered what conclusions he would draw if he were wrong on the decisive issue. This is especially so because what was in contest included questions of the basic legal relationships between the parties.

SANTAMARIA JA:

Proceedings and Issues

Paul Raymond Housden (the appellant, who was the plaintiff below) (‘plaintiff’) was a plasterer. The respondents, Boral Australian Gypsum Limited and Boral Plaster Fixing Pty Limited (‘Boral’), delivered sheets of plasterboard to building sites. The plaintiff would cut the sheets of plasterboard to the size required and, then, affix them to walls and ceilings. At various building sites, Boral would deliver sheets of plasterboard for him to work on. Originally, Boral would deliver sheets of plasterboard in such a way that they were stacked in a vertical position. The plaintiff would cut from a sheet the portion necessary to complete some job in a building under construction. To do that, he would use a set square to mark the necessary dimensions. Then, he would use a knife to score and, then, cut from the

sheet the portion he needed. When the sheets were stacked in a vertical manner, the cutting was relatively simple, and placed no strain on his back. However, from October 2004, Boral changed the way in which it delivered sheets of plasterboard: it left them at building sites stacked horizontal to the ground. The plaintiff said that Boral then required him to change the way in which he cut the sheets to the size required. He would remove the top sheets from the stack and lean them up against a wall and score and cut them as before. Cutting the remaining horizontal sheets required him to bend his back across the sheet on top of the stack: he would score the line to be cut with a Stanley knife. Then, he would put his left hand under the sheet to lift it in order to be able to cut and separate from the sheet the portion he needed, using the knife held in his right hand. He said that, as a result of these activities, undue strain was placed upon his spine, in particular causing injury to his lumbar spine resulting in a fusion procedure being undertaken on it.

The plaintiff received a serious injury certificate pursuant to s 134AB of the Accident Compensation Act1985 (‘ACA’) which entitled him to bring proceedings against Boral for the recovery of pain and suffering and pecuniary loss damages as a result of the injury alleged by him to have been sustained in the period on and from 17 August 2004, and more particularly on 22 January 2007.[10] On 21 October 2010, the plaintiff brought proceedings (‘the plaintiff’s proceedings’) alleging that Boral had been negligent and/or had breached statutory duty since 8 October 2004 when he undertook repeated heavy manual handling work, and, more particularly, on 22 January 2007, whilst working on a site at Narre Warren when he said he was required to manually handle, manoeuvre and cut sheets of plasterboard.[11]
[10]The plaintiff sent a copy of the certificate to the Court on 30 April 2015.
[11]Summary for Court of Appeal [2].

Boral instituted third party proceedings in which they sought contribution and/or indemnity from the Victorian WorkCover Authority (‘VWA’) in respect of any damages and legal costs recovered from them by the plaintiff (‘the third party proceedings’). Boral’s claim had two bases: (a) they said that the plaintiff’s plastering services were supplied to them pursuant to an agreement between them and Stebec Pty Ltd (‘Stebec’), which employed the plaintiff, and that Stebec had agreed to indemnify them in respect of any liability which they may have to the plaintiff; (b) they relied on the Wrongs Act 1958 contending that, if the plaintiff had sustained injury as he alleged, that injury had been caused and/or contributed to by the negligence and/or breach of statutory duty of Stebec. As Stebec had been deregistered, Boral alleged that they were entitled to an indemnity from the VWA, as Stebec’s insurer, pursuant to s 601AG of the Corporations Act2001 (Cth).[12]
[12]The plaintiff had previously made a claim against Stebec submitting that it was his employer for the purposes of payment of ‘no fault’ benefits under the Accident Compensation Act 1985. He also had commenced a ‘serious injury’ application against Housden Plastering Pty Ltd.

Pursuant to s 138 of the ACA, the VWA instituted proceedings against Boral (‘the recovery proceedings’) seeking indemnity with respect to the compensation paid to or in respect of the plaintiff under the Act, as an employee of Stebec.

On 5 May 2014, the plaintiff was given leave to amend his statement of claim.

Paragraphs 5 and 6 of the amended statement of claim pleaded the conduct on the part of Boral which the plaintiff said resulted in his suffering injury as a result of Boral’s negligence and breach of regulations. It said:

5.The Plaintiff sustained injury when sub-contracted to perform work for the Firstnamed Defendant and/or Secondnamed Defendant using products of the Firstnamed Defendant and/or Secondnamed Defendant in the Period on and from 8 October 2004 when he was required to undertake repeated heavy manual work and more particularly on 22 January 2007 whilst working on a site at Narre Warren when he was required to manually handle and manoeuvre sheets of plaster board, as a result of which activities, undue strain was placed upon his spine (which injuries are hereinafter referred to as ‘the injuries’).
6.The injuries were caused by the negligence of the Firstnamed Defendant and/or the Secondnamed Defendant, their servants and agents (which injuries are hereinafter referred to as ‘the injuries’).

PARTICULARS OF NEGLIGENCE OF THE DEFENDANTS
…
(i)Requiring and/or permitting the Plaintiff to repeatedly manually handle heavy plaster board sheet;
(j)Failing to ensure that plaster board sheets were stacked vertically so that they could be more easily manually handled by the Plaintiff;
(k)Permitting plaster board sheets to be stacked horizontally thereby requiring the Plaintiff to lift such sheets whilst bending;
…[13]

[13]The original statement of claim was endorsed on the writ. The date does not appear in the appeal book. However, on 5 May 2014, the trial judge gave the plaintiff leave to amend his statement of claim. The only amendment has been underlined above.

The proceeding was tried in the County Court over 18 days in the period April – May 2014. On 16 June 2014, judgment was delivered and the plaintiff’s claim was dismissed.

Reasons of the trial judge

It was not in dispute that Boral had changed its method of delivering plasterboard sheets. Moreover, Boral had conducted a Manual Handling Risk Assessment that addressed the risks associated with cutting plasterboard that was stacked on the ground. It was in dispute whether Boral required the plaintiff to cut plasterboard as it lay on the ground. It was also in dispute whether the plaintiff did cut the plasterboard as it lay on the ground or whether he first took a sheet off the horizontal stack and placed it in a vertical position before he cut the necessary portion.

A major issue dealt with in the proceeding below was whether Boral had been negligent or in breach of the duties imposed by the Occupational Health & Safety (Manual Handling) Regulations 1999 in requiring the plaintiff to cut sheets of plasterboard whilst they were laid horizontally on a stack, or in providing a system of work which required him to do so, or in not instructing him not to do so.

The trial judge said that his first task was to determine whether the plaintiff undertook the cutting of plasterboard sheets in the manner he had described as ‘a finding in his favour will then require me to determine a number of other issues. A finding unfavourable to him will not require me to consider any other issues raised in the two proceedings’.[14]
[14]Reasons [23].

The plaintiff gave evidence as to the manner in which he said he was required to cut the plasterboard and how in fact he did so. In the relevant period, he worked in a team with Brett Hayes (‘Hayes’). In summary, Hayes gave a different account of the manner in which he and the plaintiff cut plasterboard. During the relevant period, Boral had appointed Adrian Dale (‘Dale’) to act as its contract coordinator at the sites at which its plasterboard was being used in construction. There was a dispute about the nature of Dale’s responsibilities and, in particular, whether he directed the plaintiff as to how he should cut plasterboard and as to his opportunities to observe how the plaintiff cut plasterboard sheets. While Dale said he never gave instructions to the plaintiff to cut plasterboard while it was laying horizontally, he had observed contractors (which would include the plaintiff) cutting plasterboard as it lay on the horizontal stack. Andrew Chard (‘Chard’) was a contracts manager with Boral. He said that, while it was permissible for plasterers to cut sheets while they remained stacked horizontally, he could not recall having seen any plasterer do so. David Tunne (‘Tunne’) was a labourer who worked with the plaintiff and Hayes. He gave evidence of his observations of the way in which the plaintiff cut plasterboard. He said that, as a rule, the plaintiff took sheets of plasterboard off the horizontal stack and cut them vertically. Finally, Peter Matthews (‘Matthews’) gave evidence. He worked with the plaintiff and Hayes as a

‘stopper’: that is he applied plaster in the joins between the sheets of plasterboard to give a smooth finish. He also gave evidence that, in his observation, the plaintiff would drag sheets off the top of the horizontal stack, place them in a vertical position and then cut them. The evidence of these witnesses will be described in detail later in these reasons.[15]
[15]Dale [84]–[88]; Chard [89]; Hayes [105]–[113]; Matthews [125]–[134]; Tunne [136]–[138].

The trial judge found that the cutting of plasterboard sheets vertically, and not horizontally, was the ‘dominant method’ or ‘dominant manner’ by which the plaintiff performed his work.[16] He said that the extent to which the plaintiff cut plasterboard while it was stacked horizontally was ‘marginal’.[17] He did not accept that the plaintiff cut the sheets of plasterboard in the manner he described in his evidence-in-chief.[18] In reaching that conclusion, the trial judge referred to:
[16]Reasons [106]–[107], [109] (though plainly the reference in the fourth line of [109] to ‘horizontal’ should be ‘vertical’), [116] and [118].
[17]Reasons [118].
[18]Reasons [121].

(a) the way in which the case was originally pleaded which appeared to contemplate a case ‘quite [different] than the one which was opened’;[19]

(b) the fact that the plaintiff had made a prior inconsistent statement in the affidavits filed by him in two of his serious injury applications pursuant to s 134AB of the ACA; and

(c) the fact that he preferred the evidence of Hayes, Tunne and Matthews to that of the plaintiff and Dale.

[19]Reasons [119].

In dismissing the plaintiff’s proceeding, the trial judge summarised his reasons as follows:

While Dale was a reasonably impressive witness in that he was composed, and gave answers in evidence-in-chief and cross-examination very fairly and without any hint of favouring one party over the other, his evidence is dramatically at odds with Hayes and Tunne, who I think were in the best position to observe precisely how Housden went about cutting sheets of plasterboard. I am less inclined to accept his evidence because of the infrequency of the occasions when he observed Housden at work, and again, because I prefer the evidence of Hayes, Tunne and Matthews, whose observations struck me as being clear, reasonably precise and absent much doubt as to how Housden went about his work.
In the end, the aggregate impact of the initial pleading of Housden’s case, the prior inconsistent statement comprising Housden’s affidavits, and the fact that I prefer the evidence of Hayes, Tunne and Matthews has led me to conclude that I do not accept that Housden cut the sheets of plasterboard in the manner he described in his evidence-in-chief. Therefore, Housden’s proceeding must be dismissed.[20]

[20]Reasons [120]–[121].

Issues not decided by trial judge

Because of his finding as to how the plaintiff cut the plasterboard sheets, the trial judge did not deal with other issues that were raised at the trial which included:

(a) the nature of the relationship between the plaintiff and Boral, and whether the plaintiff was an employee of Boral or of Stebec or was an independent contractor;

(b) the scope of any common law duty of care and statutory duty owed to the plaintiff pursuant to the Occupational Health & Safety (Manual Handling) Regulations whether by Boral or by Stebec;

(c) whether there was breach by Boral or by Stebec of any common law or statutory duty owed to the plaintiff;[21]
[21]Evidence was given of various procedures implemented by Boral to address worker safety.

(d) whether there was contributory negligence on the part of the plaintiff which was a cause of the alleged injuries sustained by him;[22]

(e) the causation of injury allegedly sustained by the plaintiff;[23] and

(f) quantification of any damages entitlement of the plaintiff.

[22]Boral denied that it required the plaintiff to work in the manner he alleged caused him to suffer injury.

[23]Evidence was given that the plaintiff had had back complaints before the period relevant to the present case.

Orders of Court

On 16 June 2014, the Court:

(a) dismissed the plaintiff’s proceeding and entered judgment for the respondents. The Court ordered the plaintiff to pay Boral’s costs of the proceeding;

(b) dismissed the third party proceeding against the VWA. The Court also ordered Boral to pay the costs of the VWA of the third party proceeding; and

(c) entered judgment in favour of Boral in the recovery proceeding and ordered the VWA to pay costs of that proceeding.

Notice of appeal

On 3 July 2014, the plaintiff filed a notice of appeal in his proceeding against Boral (Proceeding No. S APCI 2014 0071). It contained the following grounds:

1.The trial judge should have found that when the Appellant cut sheets of plasterboard he did so when they were horizontal on a stack of sheets, as described by him, or that he did so predominantly, and he should have found that on that basis that the Respondents each owed a duty of care to or had statutory duties under the Occupational Health & Safety Regulations 1999 to the Appellant, and had been negligent or in breach of those statutory duties having regard to the use by the Appellant of that method, that the Respondents' negligence and breach of statutory duties was a cause of the Appellant's claimed injuries, and should have assessed the Appellant's damages.
2.The trial judge was wrong in holding that if in fact the Appellant had cut a majority of the sheets of plasterboard whilst they were vertical, then he would have failed to establish negligence or a breach of statutory duty.
3.The trial judge was wrong in holding that the Appellant's case must fail if the method of cutting sheets of plasterboard whilst they were horizontal was not the dominant method which he used.
4.Having found that the cutting of plasterboard sheets by the Appellant whilst they were horizontal was the non-dominant method used by him in the cutting of plasterboard sheets the trial Judge should have found that on that basis that the Respondents each owed a duty of care to or had statutory duties under the Occupational Health & Safety Regulations 1999 to the Appellant, and had been negligent or in breach of those statutory duties having regard to the use by the Appellant of that method, that the Respondents' negligence and breach of statutory duties was a cause of the Appellant's claimed injuries, and should have assessed the Appellant's damages.
5.The trial judge was wrong in holding that the Appellant's evidence of how he cut sheets of plaster was far less likely to be the case.
6.The trial judge ought to have held that on the balance of probabilities the account given by the Appellant of how he cut sheets of plasterboard at relevant times was correct.
7.The trial judge was wrong in holding that the extent to which the Appellant cut sheets of plasterboard whilst they were horizontal was marginal, or was not the dominant method which he used for that purpose.
8.The trial judge was wrong in holding that the Appellant's pleadings contemplated a case put quite differently from that which was opened, or in putting any weight on that consideration, if it was correct.
9.The trial judge should have referred to, and preferred the evidence of, the witness Adrian Dale, who gave evidence supporting the Appellant's evidence as to how he cut sheets of plasterboard, as:
a)he gave evidence that since 2000 he had supervised two gangs of plasterers for the Respondents, including a gang of which the Appellant was a member, and for that purpose he visited each site on which they worked once before the plasterers had arrived to see if the site was ready and again on the same day after they had commenced work to see if they were doing what they were supposed to,
b)he gave evidence as to having actually seen how the Appellant cut sheets of plasterboard, after the Respondents had in 2004 commenced leaving plasterboard on sites in flat horizontal stacks, instead of vertical,
c)the trial judge was wrong in holding that he had given evidence that the only occasion on which he attended a site where the Appellant was working was on one occasion to have a chat,
d)he was not asked, and did not say, that the Appellant did not do cutting work on site during his attendance on sites where the Appellant was engaged, or that he only there to have a chat [sic].
e)he was called to give evidence by the Respondents, and was not examined in chief as to his observations as to how the Appellant cut plasterboard,
f)his evidence in that regard was given in cross examination on behalf of the Appellant,
g)the Respondents did not re-examine him as to his observations as to how the Appellant cut plasterboard, or ask that permission be given to cross examine him, and appear to have accepted his evidence at T638.

10.The reasons given by the trial judge for not accepting the evidence of Adrian Dale, who gave evidence of actual observations by him of how the Appellant cut sheets of plasterboard, were inadequate.
11.The reasons given by the trial judge for not accepting the evidence of Adrian Dale, who gave evidence of actual observations by him, were wrong, or omitted relevant matters, in that they depended on an acceptance of the evidence of the witnesses Brett Hayes, David Tunne and Peter Matthews as to which:
a)the evidence of Brett Hayes was, and should have been found to be unreliable, having been contradicted by previous statements made by him, and as having materially changed during his evidence as to where the sheets of plasterboard were when cut vertically, as he alleged they were, but that in any event he said that the Appellant did cut on the horizontal, although not in the exact fashion as described by the Appellant, approximately 5 times per house,
b)David Tunne, was a labourer, not a plasterer, and had not worked with the Appellant after March 2005, agreed that he was often not in a position to see what the Appellant was doing, but in any event said that he had seen the Appellant cut plasterboard sheets on the horizontal when a short piece was required, that this would happen at times for the first one or two sheets on a stack,
c)as to the witness Peter Matthews, he had done and still did stopping work for Boral. Stopping work was done after the plaster had been hung. His evidence as to how he was able to see how the Appellant did his work was unconvincing and in any event was only for about 15 minutes twice a month, and he gave unconvincing evidence as to a conversation with the Appellant as to how he did his work.

The first ground of appeal canvasses almost every issue that was in dispute between the parties. But, because of the way in which he approached the resolution of the issues before him, the trial judge himself resolved none of those issues save the question of what the plaintiff actually did when he cut portions of sheets of plasterboard from the pile that Boral had stacked horizontally. For that reason, consideration of the first ground may be deferred for the present. Grounds 2–4 raise a different issue, namely that, even if the plaintiff only cut the sheets occasionally when they were resting in a horizontal position, the judge erred in holding that there had been no breach of any duty owed to him by Boral. As his counsel said at the hearing of the appeal: if Boral was not in breach of duty for permitting him to cut on the horizontal stack ‘all of the time’, it was nonetheless in breach of duty for allowing him to cut that way ‘part of the time’. The respondents protested that that had never been his case at trial and, had it been, they would have conducted their cases differently. Grounds of appeal 5–7 directly impeach the one finding that the trial judge made: that the plaintiff’s method of cutting sheets largely involved taking them off the horizontal stack, placing them upright in a vertical position and, then, cutting them. The remaining grounds impeach the particular reasons that the judge gave for not accepting the plaintiff’s evidence of what he did. Ground 8 says that the judge was wrong to detect any difference of significance between the way in which the plaintiff’s case was pleaded and the evidence that he gave. Grounds 9 and 10 complain about the manner in which the trial judge dealt with the evidence of Dale, a senior employee of Boral who gave evidence favourable to the plaintiff. Ground 11 says that the evidence of Hayes, Tunne and Matthew was unreliable and criticizes the trial judge for preferring their evidence to that of Dale.

The alternative case

On the hearing of the appeal, the plaintiff ran his case in the alternative. He said: (a) the trial judge had erred in failing to accept his evidence with respect to the manner in which he performed cutting of plasterboard on the horizontal especially as that evidence had been corroborated by Dale and (b) alternatively, in so far as the trial judge had accepted that he had cut plasterboard on the horizontal at least in some cases, he erred in holding that there was no negligence or breach of duty on the part of Boral.[24]
[24]Grounds 2–4 in the notice of appeal raise the alternative case. See [24] above.

For the reasons that follow, both the principal way in which the plaintiff ran his case, and his alternative case, should be rejected and the appeal dismissed.

Boral’s notice of contention

On 18 August 2014, Boral filed a notice of contention in which they said that the judgment and orders of the County Court should be affirmed on grounds which were not decided at first instance.[25]
[25]Generally speaking, the grounds relied upon in the notice of contention have been identified in [22] above.

It has proved unnecessary for the grounds relied on in the notice of contention to be determined.

Boral’s appeal from the third party proceedings (S APCI 2014 0076)

On 23 July 2014, Boral filed an amended notice of appeal seeking orders that, if any of the plaintiff’s grounds of appeal were substantiated, then such error should be taken to demonstrate error on the part of the trial judge in ordering the dismissal of the third party proceedings.

In its amended notice of appeal, Boral said that, in the event that the plaintiff succeeded in his appeal, the trial judge erred in ordering that the third party proceeding against the VWA be dismissed. Boral said that, if the plaintiff was successful on any of the grounds in his appeal as a result of which this Court would disturb the order made by the trial judge dismissing his claim against Boral, ‘the appropriate disposition of this appeal and also appeal No. S APCI 2014-0071 is that both the proceedings brought by the second respondent and the appellants be remitted for retrial to the County Court.’ Boral conceded that, in the event that the plaintiff’s appeal was unsuccessful, Boral’s appeal against the VWA must also fail.

The VWA also accepted that, if the plaintiff is successful in his appeal, the Boral appeal must also succeed. It said that ‘[t]he result would be that the third party proceedings brought against the VWA must also be remitted to the County Court.’

As I am of the view that the appeal should be dismissed, it is unnecessary to consider further the appeal from the third party proceedings, as the order made by the trial judge dismissing the third party proceeding will be undisturbed.

Contentions of the plaintiff on the appeal

The first issue was whether the plaintiff had injured his back as a result of cutting sheets of plasterboard while they were lying horizontally on top of a horizontal stack of such sheets. The major factual dispute was whether the plaintiff cut the sheets in the way he described or whether he cut them after they had been taken off the stack and rested vertically against the stack itself or against a nearby wall.

The finding that the plaintiff had cut the plasterboard dominantly when it was resting vertically was consistent with his case that he also cut it when it was lying horizontally. However, the plaintiff contended that evidence indicated the ‘main method of cutting sheets of plaster was “on the stack”, ie whilst flat on a horizontal stack.’

Dale corroborated the plaintiff’s evidence as to how the sheets of plasterboard were cut; his credit had not been impeached. Dale had seen plasterers (which would have included the plaintiff) cut sheets of plaster in this fashion.

The plaintiff said that documents produced by Boral in relation to risk assessment supported (a) his evidence as to the manner in which plasterboard was cut; (b) Dale’s evidence that all plasterers cut plasterboard in the manner he described; and (c) an inference that Boral had required all its plasterers to cut plasterboard in the manner described by both the plaintiff and Dale.

As early as October 2004, Boral had identified the risks associated with the handling of sheets of plasterboard when they were delivered in a horizontal stack.[26] They produced a ‘Manual Handling Risk Assessments: (Cutting plasterboard sheets from a horizontal stack)’ that contained the following:
[26]Occupational Health and Safety (Manual Handling) Regulations1999 S.R. No. 84/1999. Regulation 13 is entitled ‘Duty of employer to identify tasks involving hazardous manual handling’. Regulation 13 provided:
(1)An employer must ensure that any task undertaken, or to be undertaken, by an employee involving hazardous manual handling is identified.
(2)In these Regulations, ‘hazardous manual handling’ means-
(a)        manual handling having any of the following characteristics-
(i)         repetitive or sustained application of force;
(ii)        repetitive or sustained awkward posture;
(iii)       repetitive or sustained movement;
(iv)       application of high force;
(v)        exposure to sustained vibration;
(b)        manual handling of live persons or animals;
(c)manual handling of unstable or unbalanced loads or loads which are difficult to grasp or hold.
(3)Without affecting the generality of sub-regulation (1), an employer must ensure that any task involving hazardous manual handling is identified-
(a)before any task involving manual handling is undertaken for the first time in a workplace;
(b)before any alteration is made to objects used in a workplace or to systems of work which include a task involving manual handling, including a change in the place where that task is carried out;
(c)before an object is used for another purpose than for which it was designed if that other purpose may result in the person carrying out hazardous manual handling;
(d)if new or additional information about hazardous manual handling being associated with a task becomes available to the employer;
(e)if an occurrence of a musculoskeletal disorder in a workplace is reported by or on behalf of an employee.

Step 1a — Does the task involve repetitive or sustained postures, movements or forces?

Bending the back towards or sideways more than 20 degrees

Yes

Comments

Reaching over the width of plasterboard

Reaching forwards or sideways more than 30cm from the body

Yes

Reaching over the width of plasterboard

…
Step 2 — Does the task involve high force?

Pain or significant discomfort during or after the task

Yes

Comments

Reports of back pain received from plasterers

Step 3 — Is there a risk?

Does the task involve repetitive or sustained posture movements or forces and long duration? (Did you tick Yes in Step 1a and Step 1b?)

If Yes, the task is a risk. Risk control is required.

Yes

Risk Controls (Yes)

Contractors are required to utilise correct manual handling techniques.

The plaintiff contended that the fact that Boral had prepared this risk assessment was evidence that Boral knew that sheets of plasterboard were handled manually as they lay on the horizontal stack and that there were risks associated with the manual handling of them.

In June 2004, Boral had produced a booklet entitled ‘Interior Linings: Think First … Think Safe. Safe Work Procedures for Australian Plasterers’. That booklet contained the following:

Step 2: Prepare Plasterboard
Procedure
1. Measure the walls for the sheet sizes.
2.Measure, mark and score the top sheet on the stack. Move to the edge or end of the stack and snap the sheet. (Prepare sheets for ceilings and wet areas first, and the walls later.)
3.Move the cut sheets into rooms ready to be hung.
NOTE:

Larger quantities of plasterboard MUST be stored flat. Leaning against the frame can cause damage and introduces the hazard of sheets falling.
HAZARDS:
Manual handling:
·Bending over to pick up a large horizontal sheet can cause back injury. (The risk increases as the stack gets smaller.)
·Overusing the same side of the body to carry sheets.
·Carrying sheets at their ends allows sheets to ‘flap’, putting more stress on your back.
·Supporting the full weight of sheet/s with one hand.
·Cutting a sheet while it’s flat involves more stretching than cutting a sheet when it’s leaning up against the wall.

Thereafter, the booklet described certain ‘controls’ such as a stretching and warm up activity and team lifting.

The plaintiff submitted that the ‘controls’ did not deal with the hazard that confronted him. The document identified procedures to be followed ‘when the stack is high’ and ‘when the stack is low’. Under the latter heading, the following advice was given:

WHEN THE STACK IS LOW:
1.Stand in the middle of the long side of the stack, with palms facing the ceiling.
2.Insert fingers between sheets to separate them.
3.When done, grab the sheet, by leaving palms facing up and pull upwards, and lift the sheet’s edge, closest to the body, up from the stack, away from the torso.
4.When board is high enough on its edge, bend knees and turn side on.
5.Put the hand you want to hold the lower half with, under the sheet, so the sheet goes vertical. At the same time, raise the other hand to meet and hold the top edge.
6.Turn your body side on to the sheet and face the direction you want to go.
7.Keep your back straight and head up, straighten knees and walk.[27]

[27]It is to be noted that the method of cutting when horizontal identified in the booklet is a different method from that that the plaintiff said he used.

Boral also had produced a document entitled ‘Boral Interior Linings: Health, Safety & Environment Management System’. The document contained the following:

5.10.2 MEASURING PLASTERBOARD
Hazard:
Manual Handling: Repetitive movement, reaching/stretching and minor loading measuring plasterboard stack. Bending over a horizontal plasterboard stack, holding sheets and scoring/marking causes static loading.
Controls:
· When measuring a plasterboard sheet, slide a single sheet from stack and rest vertically on frame.
· Using a Tee square mark the sheet with a pencil ready to score and cut.

5.10.3 CUTTING PLASTERBOARD
Hazard:
Manual Handling: Repetitive movement and static loading when bending over horizontal plasterboard stack, holding sheets and cutting board.
Controls:
·Slide single board from stack and rest vertically on frame.
·Using retractable knife, score and then break the plasterboard.

In December 2005, Boral published a second edition of the ‘Interior Linings: Think First … Think Safe. Safe Work Procedures for Australian Plasterers’ booklet described in [40]–[41] above. That booklet similarly, distinguished handling sheets of plasterboard ‘when the stack is high’ from ‘when the stack is low’. Its text was identical to the 2004 document.

From time to time, Boral inducted the plaintiff into its practices and procedures. The evidence included Boral’s ‘HSE Induction Assessment’ dated 14 June 2006. The plaintiff said that no part of the induction process referred to cutting plasterboard while it remained on the horizontal stack, and that no part of the induction process reflected the hazards and controls identified in the above mentioned documents.

The plaintiff said that the present case did not involve ‘credibility’; it was not a case which was based at all on the demeanour of any witness. The trial judge had said:

It is the aggregate impact of the evidence of Hayes, Tunne and Matthews which I find more persuasive, in that it was more likely than not that the dominant method of cutting sheets of plaster during the relevant period was as I have described in the preceding paragraph.[28]

The plaintiff referred to Victorian WorkCover Authority v Carrier Air Conditioning Pty Ltd.[29]He said that this Court was in as good a position as the trial judge to decide what method he had used when sheets of plasterboard were delivered stacked horizontally; the case did not involve questions of degree or value judgment.

[28]Reasons [107].

[29][2006] VSCA 63. In that case, Ashley JA (with whom Chernov JA and Mandie AJA agreed) said (at [12]): ‘… a right of appeal in respect of a civil matter which has culminated in an order or judgment of a judge of the County Court is conferred by s 74(1) of the County Court Act 1958. The powers of this Court in such a case are specified by s 74(3). It is unnecessary, for present purposes, to consider the place of s 14 of the Supreme Court Act 1986 in the regime thus established. Nor is it necessary to refer to Chapter 1 of the Rules, or the corresponding Order of the County Court Rules of Procedure in Civil Proceedings. It is enough to say that an appeal brought under s 74(1) of the County Court Act is in the nature of a re-hearing. The content of that task has been the subject of fresh pronouncements by the High Court in recent times — in Fox v Percy, Pledge v Roads & Traffic Authority, and CSR Ltd v Della Maddalena. The task is, of course, different where a discretionary decision is the subject of the appeal. But although the question whether a person was guilty of negligence does involve elements of degree, and value judgment, nonetheless a judge’s answer to the question is not a discretionary determination; just as it is not to be equated with the verdict of a jury. On the other hand, where the resolution of a question involves elements of fact, degree and value judgment, it may be said that it will be more difficult to persuade an appellate court of error than in the case of findings of fact where questions of degree and value judgment do not arise.’ (citations omitted).

The plaintiff said that he had given consistent evidence as to the method he used in cutting plasterboard. His account had not been controverted in cross-examination.[30]
[30]This proved to be a controversial submission. Boral contended that, by reason of the pleadings and some other documents, they had not been put on notice as to the evidence that the plaintiff would be giving.

The judge erred in preferring the evidence of other witnesses to that of the plaintiff and of Dale. Dale had been called by Boral to give evidence about the induction processes that it used for its plasterers. He was himself an experienced plasterer. During his cross-examination, he gave evidence that he attended each building site twice a week and that his role was to coordinate two gangs of plasterers. He gave evidence of his observations as to the methods plasterers used for cutting sheets of plasterboard. He said that he had observed plasterers cutting it in the way the plaintiff said that he cut it. The plaintiff submitted that the trial judge had erred in giving such little weight to Dale’s evidence given the nature of his observations and his ability to make them. Even Hayes had conceded that Dale was in a position to observe the way in which the plaintiff worked. The plaintiff said that the judge’s reasons for rejecting the evidence of Dale were unsatisfactory. He had found that Dale had had limited opportunities to observe the plaintiff and, even then, had spent his time chatting with the plaintiff rather than watching him work.[31] Further, it was not put to Dale in re-examination that he had not seen what he said he observed: Dale’s evidence was un-contradicted.
[31]Reasons [105].

Hayes had an axe to grind. He had worked for the plaintiff for a considerable period of time and had not been paid his superannuation entitlements. Moreover, his evidence was unsatisfactory. He denied that plasterboard was cut on the horizontal stack. That evidence was inconsistent with Boral’s own material. In its own documents, Boral had itself anticipated that plasterboard would be cut as it lay on the horizontal by describing that method of cutting. Further, Chard was a contracts manager with Boral. His task involved liaising with builders and contract co-ordinators. His work involved visiting building sites and talking to plasterers. He had given evidence that it was permissible for Boral plasterers to cut sheets of plasterboard while they remained stacked horizontally.

Further, Hayes had given two earlier statements that were inconsistent with his oral evidence: (1) a statement to VWA dated 10 September 2009[32] and (2) a statement dated 10 August 2013 to Katherine Wilson (‘Wilson’), a solicitor retained on behalf of the plaintiff.[33] In them, Hayes had made statements that indicated that the plasterboard sheets had been cut on the horizontal. Although Hayes equivocated about what he meant by the term ‘on the stack’, his efforts to suggest it included cutting plasterboard in a vertical position were unconvincing.
[32]This statement was signed by Hayes.
[33]This statement was unsigned. It had been prepared by Wilson after a phone conversation she had with Hayes.

Tunne gave evidence that he had seen the plaintiff cut plasterboard when it remained stacked horizontally. He could not say how often he had seen the plaintiff employ that method. Moreover, he was present only for a short period after the horizontal delivery method was introduced.

Matthews gave evidence that he had seen the plaintiff cutting plasterboard when it was resting vertically. However, his opportunities to make observations were very limited. He was not himself a plasterer and would have seen the plaintiff at work for no more than 30 minutes a month on average.

For these reasons, the judge erred in not finding that the plaintiff cut pieces from plasterboard sheets by the methods he described.

As mentioned above, the plaintiff also relied upon the alternative case reflected in grounds 2–4 of the notice of appeal. He said that the judge should have decided the case on the basis of all the evidence; it should not have turned on the pleadings. Even if the judge was right to find that cutting plasterboard on the horizontal was not his dominant method of cutting, he did find that he cut it that way some of the time. He erred in holding that there was no negligence or breach of statutory duty on the part of Boral.

The plaintiff said that Boral owed him duties ‘as an employer under the provisions of the Occupational Health and Safety (Manual Handling) Regulations 1999’. The plaintiff’s activities constituted ‘manual handling’ and ‘hazardous manual handling’ within the meaning of those regulations. Boral had conducted a Manual Handling Risk Assessment of the task of cutting plasterboard from a horizontal stack.[34] That assessment had demonstrated that there were risks to health and reports of back pain received from plasterers and that ‘risk control’ was required.
[34]See [38] above.

The regulations required Boral either to eliminate the risk or to reduce it. Boral had done neither. Despite the fact that its officers knew (a) that the plaintiff engaged in the horizontal cutting method and (b) of the risk involved in horizontal cutting, it did nothing to stop him from using that method. Its officers never inspected his work practices ‘to see if they involved any risk of musculoskeletal disorder’. Thus, Boral was in breach of its duties to the plaintiff imposed by the regulations.

Statements made by plaintiff before trial

The plaintiff made various statements about his injuries and the cause of them before he gave his evidence. These statements were put to him during his cross-examination.

He spoke to Dr Cubitt. Dr Cubitt made a report in which he recounted his instructions. He said:

A sheet was slid off the horizontal stack and leant against the stack and cut where necessary. The sheet was then carried by two people, Mr Housden and another person, to the trestle.[35]

[35]During his cross-examination, it was put to the plaintiff that his description of his work involved sliding all sheets off the horizontal stack, and not just the top ones. The plaintiff said that he could not remember seeing Dr Cubitt.

The plaintiff met Ms Kikas, an expert retained by his solicitors. Ms Kikas was a qualified and registered physiotherapist and a professional ergonomist. She specialised in the assessment, treatment and prevention of musculoskeletal injuries.[36] In her report, Ms Kikas said:
[36]The report dated 6 August 2013.

5.26Mr Housden described how the flat-stacks plasterboard sheets compared to the edge stacks (resting on their long edge) of sheets resulted in the introduction of four additional steps which made the job more strenuous and time-consuming:
1.Pulling and sliding the top plasterboard horizontally across the stack (only when the stack height was between 1400 mm and 1000 mm);
2.Lowering the top sheet of plasterboard to the floor to rest it on its long edge against the stack in order to be able to cut it;
3.Awkward forward reaching postures adopted while cutting sheets in a horizontal orientation when stacked on top of each other from a height of 1000 mm down to floor level. Mr Housden chose to cut sheets in a horizontal orientation on the stack in order to reduce the weight of the lift by reducing the length of the sheet he then had to lift and carry; and
4.Additional awkward bending in order to cut and pick up sheets from the floor as the stack got lower.

5.27Mr Housden confirmed that he would slide and lower sheets from a maximum stacking height of 1400 mm down to approximately 1000 mm, in order to be able to cut the sheet when it was resting along its long edge against the stack. From a flat stacked height of 1000 mm or below he would cut the sheet as it lay on the stack, horizontally as he was able to reach across its width (i.e. 1200 mm or 1350 mm) and use a Stanley knife to cut it to its required length. He would then slide and lower the sheet which he'd cut to size in order to pick it up in a vertical orientation which made it easier to carry to the room in which he was required to hang the sheet.
5.28Mr Housden confirmed that the introduction of flat stacked 6000 mm long plasterboard sheets introduced the need for him to slide and lower each sheet (above a stacked height of 1000 mm), to a vertical position in order to cut the sheet to the desired length. This in turn increased the difficulty and effort required to conduct his work.
5.29Mr Housden confirmed that he would handle approximately 85 to 90, 6000 mm length sheets on an average day. When a job was more urgent he estimated handling up to 120 sheets per day. Sheets were handled either as entire lengths with a 2-person lift, involving Mr Housden and his subcontractor, or as single lift when the 6000 mm lengths were cut down to the required length for hanging.[37]

[37]Eventually, the plaintiff conceded that he would handle an average of 85-90 sheets of plaster a day. He was not prepared to concede that ‘hanging plaster’ was a more onerous job than ‘stopping plaster’. Ms Kikas gave evidence. During her examination-in-chief, she was asked about the instructions which the plaintiff gave her. Paragraph 5.27 of her report was read to her. In addition, counsel for the plaintiff read to her the description given by the plaintiff in evidence-in-chief as to how he cut the plasterboard. Ms Kikas was asked whether there was anything in the description given by the plaintiff that differed from her understanding of the method of work he was adopting. She said: ‘He didn't describe to me, or I didn't understand, that he was lifting the sheet the 10 mil in order to clear it. My understanding was that he was just scoring and cutting it and then pulling off whatever length he was to work with.’ Later, she was asked to consider paragraph 5.32 of her report and to compare it with the evidence given by the plaintiff. She said: ‘The difference is that he has taken the full weight through his left hand. My understanding was that it was whilst he went to lift two-handed the sheet that he had actually cut. So my analysis in that final - I will just give you the number - so my analysis in section 7.2 figure 3 is basically sharing the weight of that two-metre sheet that he has cut through with two hands. You are now telling me that he was lifting that just with his left hand when it occurred.’

The plaintiff’s GP was Dr Manton. He prepared a report dated 14 March 2008.[38] In his report, Dr Manton said:

The injury occurred at work while he was lifting heavy plasterboards.[39]

[38]This report is not in the appeal book. It was at page 147A of the court book.

[39]The plaintiff said he could not recall saying that to Dr Manton.

The plaintiff was operated upon by Mr D’Urso. In his report, Mr D’Urso said:

On 22 January 2007 Paul was plastering. He picked up a plasterboard and felt his back develop acute pain.[40]

[40]It was pointed out to the plaintiff that no reference was made to his ‘cutting plasterboard at the time of this incident’. The plaintiff could not remember the consultation with Mr D’Urso.

The plaintiff consulted Dr Heffernan. His report is dated 1 August 2009. He said:

Mr Housden previously worked as a plasterer. He sustained a back injury in January 2007 whilst lifting plasterboards off the floor at work and has experienced back pain and right-sided sciatic pain since then.[41]

[41]Similarly, the plaintiff was asked why no mention was made to Dr Heffernan of his being injured while cutting plasterboard. He said that he did not recall the consultation.

The plaintiff had consulted a physiotherapist at Langwarrin Sports Medical Centre whose notes were in evidence. Those notes showed that the plaintiff had visited the medical centre a number of times, since at least May 1999, complaining of lower back pain.[42] The plaintiff consulted the physiotherapist on 22 January 2007, the date on which he said he suffered acute back pain.[43]
[42]The plaintiff said that he could not recall complaining of suffering back pain either in (a) 6 May 1999, (b) 10 January 2001, or (c) 28 May 2005.
[43]The plaintiff was asked why he had not said that he had injured his back at work. He said (repeatedly) ‘I can’t recall’.

The plaintiff made a ‘Workcover Worker’s Claim Form’ dated 1 June 2007.[44] In that form, he had reported that he suffered his original injury on 22 January 2007. He reported that on 22 May 2007, the condition had worsened.[45] In that claim form, he had said:

Bent over to lift plaster sheets, pain in lower back immediately. Went to physiotherapy, had 7 treatments …[46]

[44]In cross-examination, the plaintiff was asked whether, when he signed this document, he had any belief ‘that the horizontal stacking of plasterboards’ had anything to do with his injury. He said that he could no longer answer the question: ‘I can’t answer that now’.

[45]The plaintiff could not recall what had happened to cause his condition to worsen in May 2007; in fact, he could not recall whether it had worsened on that day.

[46]It was pointed out to the plaintiff that his complaint made no entry to his having suffered an injury while cutting sheets of plasterboard.

The plaintiff swore two affidavits in support of his application for leave to commence common law proceedings.[47] In each of those affidavits he deposed as follows:

I was working at a site in Narre Warren on 22^nd January, 2007. Plaster sheets had been delivered to this site by Boral Interior Linings Pty Ltd using a driver and jockey and brought into the house and piled in the biggest room. The plaster boards would then be prepared for use on the walls and ceilings. The sheets were 6m in length and would be slid off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings (sic). On this particular occasion I went to grab the sheet which was at the top of the pile, although the pile had by that stage shrunk somewhat and the sheet was close to the ground. I believe this particular sheet which I was lifting was approximately 2m in length and 1200mm in width. As I lifted this sheet I felt something go in my back.[48]
[47]The affidavits were sworn on 6 October 2008 and 10 March 2009. The plaintiff commenced two ‘serious injury’ applications under the Accident Compensation Act 1985 in the County Court. It seems that the first application was commenced against Stebec and the second was commenced against Housden Plastering Pty Ltd. The first application was continued; the second discontinued.
[48](emphasis added). When she gave evidence, Wilson was asked about the ‘serious injury’ affidavits. She said that the affidavits were prepared by somebody else but she had settled them and had attended to their being sworn. She agreed that they made no reference to the plaintiff ‘being in the act of cutting the board when he [experienced] the pain in his back’.

Statements made by other witnesses before trial

Hayes made two statements before trial: the first was to the VWA; the second was to the plaintiff’s solicitor.

On 10 September 2009, Hayes made a signed statement to the VWA. In that statement, he said:

[The plaintiff] and I carried them one at each end and we had to be careful how we handled to avoid damage. It is also correct that they were stacked in piles on the floor of the house. We would cut them to size on the stack, and then carry the piece we were going to fix to the wall, apply glue and then nail it into place.

On 10 August 2013, Hayes spoke by telephone to the plaintiff’s solicitor, Wilson. Her note of the conversation was as follows:

Plaster would be delivered. We provided other stuff. Size: six-metre sheets. Used to be mainly stood up, then it changed. Someone died – electrical contractor. Started laying sheets down towards end of period by law. Hard for [truckies] to deliver that way. Electrical pulled them away from wall to get to wall. Now always laid down. Still plasterer, self-employed … Preferable to stand them. Hard to cut. If I had a choice, stand them up and cut them. Lifting off ground more difficult. Get to bottom of stack would sometimes stand them up.[49]

[49]Wilson gave evidence during the trial. During her cross-examination, she was asked why she did not go into details with Hayes ‘as to how to cut’ the sheets of plasterboard. She agreed that she had not asked Hayes about the cutting of the boards. She said that she hadn’t turned her mind to that point at that stage although she ‘probably should have.’

The plaintiff said that the use by Hayes of the words ‘on the stack’ meant that the sheets were being cut as they lay on the horizontal; the phrase implied that they were not first taken off the stack so they could be cut on the horizontal. In the statement to Wilson, she recorded Hayes as having said:

In my view as a plasterer it is preferable for the sheets to be stacked vertically. They are harder to cut when horizontal on the floor and they are harder to lift off the ground. If I had a choice I would have been vertical. At the sites I perform plastering work for GSR Plaster, the sheets are delivered and stacked horizontally.
When we get towards the bottom of the stacks we sometimes stand them up.

Plaintiff’s evidence

The plaintiff was born 23 March 1959 and was 55 years of age as at the date of trial. He had completed his schooling to Year 8 level and part of Year 9 when, at 15 years of age, he left school to work with his father who was a plasterer. He spent his working life in that capacity. He ran a company on his own behalf known as Housden Plastering Pty Ltd. He then worked for a number of different employers always carrying out plastering work.

In approximately 2000, he commenced employment with Derite Plastering Pty Ltd (‘Derite’) which was bought out by Boral in approximately 2004. Whilst working for Derite, he met Dale, who subsequently went on to undertake the role of contract coordinator employed by Boral.

In giving his evidence, the plaintiff confirmed the change to the manner of delivery and the method of cutting described above. Up until 2004, the plasterboard sheets which the plaintiff was required to cut and to handle had been delivered and stacked vertically on site: the sheets ‘used to be stood against the walls’. From approximately October 2004, the system was changed; the sheets were delivered to the site horizontally stacked: they were delivered ‘on the floor’. The plaintiff said that, once the horizontal deliveries started, he cut sheets whilst they remained on the stack.

The plaintiff described his manner of cutting sheets of plasterboard when they had been stacked horizontally as follows:

Q:Just in relation to the method of scoring and cutting plasterboard that was on a horizontal plane, I have explained to his Honour how that was done. Can you just explain in your own words how that was done if you were cutting on a horizontal plane?
A: Yes. All the sheets are stacked in one stack and we measure up what we need to measure up in the house.
Q:So you might need a two-metre section from a six-metre sheet, for example?
A:Yes, if it's a two-metre piece of sheet, I will measure two metres and I have a T-square which I reach across to put onto the sheets. I have a Stanley knife which I score the front of the sheet.

Q: So the T-square gets the line in the exact right position?
A:It gives a straight line. Then I proceed by putting my hand underneath on the left-hand side, because I'm a right hand with the knife. The second cut I cut through and the sheet has come apart.

Q: Let's just go over that slowly. You score it at the two-metre point?
A: Yes.
Q:Which means you have got two metres on the left, four metres on the right of the sheet?

A: I’m right-handed.
Q:Yes, but when you put the score in at the two-metre point, there is two metres on this point and there’s four metres on the other side of the sheet?

A:       That's right.
Q:       Where do you put your left hand at that point?
A:       Under the four-metre part of the sheet.
Q:       What do you do with your left hand at that point in time?
A:       Lift that sheet up off the other sheet.
Q:       How high do you have to lift it?
A:       At about 10 mil, or 10 whatever it is.

Q:       At that time the sheet is still the entire sheet still in a single sheet?
A:       Yes.
Q:       That's the 48 to 50 kilograms that I mentioned previously?
A:       Yes.
Q:That's with your left hand because your right hand does the second cut?

A: Yes.
Q:At any time whilst you were working for Boral did anyone come and assess the forces that were involved in your performing that particular action? So lifting with your left hand the entire weight of the sheet before you cut with the second cut using your right hand. Was that assessed by anyone?

A: No, not ever.
Q:To the best of your knowledge, when performing that task did anyone come to examine the posture in which you were working?

A: No.
Q:What was the precise posture in which you were working as you performed that manoeuvre?
A:You were always bent over and when the sheets got lower and lower you were on your hands and knees.

Q:       The sheets could be stacked to a height of how many sheets?
A:       It depends on how big the job is.
Q:       Just clarify this for me. I said the full weight of the sheet.
A:      Yes.
Q:      Is the sheet a flat sheet still at that point in time?
A:       Yes.
Q:       Before you put the second cut?
A:       Yes.
Q:So it is the full six metres of the sheet that is being lifted using your left hand, preparatory to the second cut. Have I understood that correctly?

A: Yes.
Q:Did anyone come to assess the posture that you were performing that work in at any time that you performed that work?

A: No.

The plaintiff described how Boral changed from the delivery of stacking sheets of plasterboard vertically to their delivery in horizontal fashion. He complained about it to Dale, his contract coordinator. He said that Dale said to him: ‘Along the lines of, “I’ve just been told that you’ve got to cut the – the sheets of being laying – they’re going to labour (sic) sheets down horizontally. You must measure and cut them off the stack.” He said “Don’t shoot the messenger,” or something along those sides (sic). So we just kept doing what we were doing’. The plaintiff said that he made other complaints to Dale about the difficulties associated with working on the horizontal plane. He said that he said to Dale several times: ‘This is slowing the job down and it’s making it very hard on the body’.[50]
[50]Later in his cross-examination, the plaintiff said that his memory was very poor: ‘It’s disgusting’. See [97]–[99] below.

In re-examination, the plaintiff said that, after Dale had given him instructions about the cutting of sheets, from what he could recall, he did not receive any instructions which differed in relation to the cutting of sheets on a horizontal plane. He said that Dale told him not to lift down each sheet and put it on a vertical plane to cut it. He told Dale that that process was going to be slower, harder and heavier. Dale told him: ‘That’s what has to be done, cut off the stack’. The plaintiff said that the system of cutting did not change from the commencement of delivery of horizontal stacks. He said that, ‘if he could remember’, he had no reason to doubt that Dale had been present on some of the occasions in the period 2004-2007 to witness him cutting plasterboard sheet in the manner in which he described. He said that ‘without a doubt’ he would have complained about the horizontal stacks but that Dale’s response was ‘just do it’.

For reasons which will be explained below, it was not suggested to the plaintiff in cross-examination that his evidence as to how he cut plasterboard was false. However, he accepted that, as at 2004, (a) he was expert in the field of hanging plasterboard (b) where and when he worked was a matter for him (c) Dale was his coordinator but Dale did not tell him how to go about his work (d) he decided what sheets were to be cut, and how they were to be cut (e) he had attended inductions with Boral in relation to how the sheet was to be delivered horizontally (f) he was assisted by Hayes and was in a position to ask Hayes to help him if he felt that the work he was performing was placing too much strain on his back (g) his paramount concern was doing things safely and (h) he knew the correct procedures for manual handling and lifting and that it was his duty to apply those procedures.

However, the plaintiff said that Dale had instructed him to measure and cut all sheets ‘off the stack’.[51] While no one was present telling him how to do things or preventing him from taking sheets of plasterboard from the horizontal stack and cutting them as they were in a vertical position, he maintained that he had been told to cut the sheets as they lay on the stack as it had been delivered.[52]
[51]As to the use of this expression, see [116]–[117] and [123] below.
[52]This summary of his evidence has been adapted from the agreed summary filed by the parties to the appeal.

During cross-examination, the plaintiff gave the following evidence:

Q:One way in which you could have done this job is pull the sheet off with your offsider, lay it down next to the horizontal stack and cut it in the vertical fashion as you had always done?

A:       It would be nice to do that, but we were told not to.
Q:       Do you say you never did it that way at all?
A:       You had to do it occasionally because the sheets were too high.
Q:       So you say that there is a different way of doing it. Is that correct?
A:Having the sheets vertical, delivered vertical, that is the correct way, I believe.
Q:So even though this instruction was apparently given to you to always cut it off the horizontal stack, you disobeyed that instruction, did you?
A:No. You're saying every sheet; I just said the sheets that you couldn't reach above, you had to pull off to use them.
Q:Okay. So you understood, didn't you, that there was a different way of cutting, didn't you?

A: I knew there was an easier way of cutting.
Q: Right. And yet that was a way that you didn't employ?
A:We were told not to do it that way; we were told to cut them off the stack.
Q:Mr Housden, your evidence earlier was that you are responsible for the way in which things are done on site. You agree with that?

A: Yes.
Q:Therefore, if there is an easier way of doing things, a safer way of doing things, then that is your call as to whether or not to do it, isn't it?
A:I wasn't allowed to stand the sheets up and that is an easier way of doing it, yes.
Q:Mr Housden, you say that you're not allowed to, no one was standing over your shoulder stopping you doing it, were they?

A: No, they were not.
Q:And no one ever saw you do the cutting in a vertical manner and stopped you doing it, did they?

A: No, they didn't.
Q:Right. Therefore, there was nothing to stop you doing it that way, was there?

A: No, there wasn't.
Q:Yet, you chose yourself to cut the board in the fashion you describe by leaning over. That's correct?

A:       Yes.
Q:       And scoring it down this way?
A:       Yes.
Q:       And then putting your hand underneath the larger part of the sheet?
A:       Yes.
Q:       And snapping it off?
A:       Then cutting it again.
Q:       Then cutting it again?
A:       Yes.
Q:       So that was a system that you chose to adopt. Is that right?
A:       That is a system we were told to do.
Q:That was a system that you chose to adopt even when you knew there was a safer way to do it. That's right, isn't it?

A: I was told to cut them off the stacks that were laying down horizontal.
Q:And despite that fact, despite that direct instruction, you still chose to do it differently for the top couple of sheets, didn't you?

A: When you could not reach them.
Q:All right. So you understood, did you not, that there was a different way of doing it?

A: There was an easy way to do it, but we were told not to.
Q:Mr Housden, how you went about your work was your business on site, wasn't it?

A: It is.
Q:Therefore you could have made the call that: this is how I'm going to cut the boards because it's easier physically to do it?
A:If someone else was previously hurt because the sheets were stood up, and I stood them up and someone came on site and they fell on, it would be on me, wouldn't it?
Q:Mr Housden, do you understand — you understand, don't you, that there were injuries sustained when a large number of sheets fell on people?

A: I was told that.
Q:So the understanding that you had was that vertical stacking is dangerous when there are a large number of sheets because if you've got, say, for example, five sheets weighing 50 kilograms each, that's 250 kilograms, isn't it?

A:       Yes.
Q:       And if that came down, it would cause you some harm?
A:       I would imagine so.
Q:       Right. We're not talking about that here, are we, though?
A:       No.
Q:       What we're talking about is you holding one sheet, aren't you?
A:       Yes.
Q:       One sheet weighing around 50 kilograms or thereabouts?
A:       Yes.
Q:There's not much risk, is there, that that is going to fall on anybody and causing serious harm, is it?

A:       Laying down, they won't, no, of course.
Q:       I'm saying vertically?
A:       Vertically, no.
Q:That's right. Because that's the way in which you used to cut it years ago, isn't it?

A: That is correct.
Q:It's not likely at all that anyone would have been injured by you taking one sheet down, resting against your stack, scoring it and cutting the piece of?
A:That's what were told to do, cut them off the stack, so that's all we did, was cut them off the stack.
Q:Please answer my question, Mr Housden. If you took one sheet of plasterboard off, rested it vertically and cut it in the fashion as you always used to do when they were stacked vertically, that would not likely — would not be likely to cause any injury to someone by you doing that?

A: Correct.

Plaintiff’s ‘serious injury’ affidavits

The plaintiff was challenged with respect to what were alleged to be prior inconsistent statements in the affidavits filed by him in two serious injury applications.[53] The plaintiff accepted that he swore an affidavit on 6 October 2008 dealing with the circumstances in which he sustained injury in January 2007. He accepted that the affidavit (at paragraph 14) indicated that the practice adopted in cutting the sheets was, first, to slide the sheets off the top of the pile.[54] The plaintiff accepted that his affidavit did not say that he ‘cut the sheets on the pile’. In the affidavit, he said that he slid the sheets ‘off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings’. In his cross-examination he said: ‘The sheets might have been high, that I had to take the top ones off … I didn’t say I did it for the whole sheets either, all the sheets’. He said that the reason he didn’t cut all the sheets after first removing them from the pile was: ‘We were told not to.’ The plaintiff accepted that, if he had chosen to, he could have slid the plasterboard sheets off first and then cut them. However, he maintained that he did not do this because he had been told not to. It was also pointed out to the plaintiff that in his affidavit he said that he felt pain in his back when he was lifting a piece of plasterboard; he had not said that the pain occurred when he was cutting a sheet of plasterboard. In cross-examination, he said ‘I was cutting the board and lifting it and in that time I did my back in’.[55]
[53]See [64] above.
[54]The text of the paragraph 14 is at [64] above.
[55]The cross-examination of the plaintiff as to what he was doing at the time of the incident on 22 January 2007 is set out at [99] below.

In re-examination, the plaintiff was taken back to paragraph 14 in his affidavits sworn 6 October 2008 and 10 March 2009. With reference to the sentence ‘this particular sheet which I was lifting was approximately 2m in length by 1200mm in width’, the plaintiff again described the method by which a two metre sheet was created from a six metre sheet: ‘… it was measured with a T-square, which (sic) I was down on my left knee, scored the front piece, lifted the second part of the sheet on the left, re-cut it, and then pick the piece up so I could go into the place where it was measured to fit’. He said that was what he was doing at the time of injury on 22 January 2007.

In the course of cross-examination regarding whether the plaintiff told Dale that he had been experiencing difficulty with the plasterboard sheeting when it was stacked horizontally, he gave the following evidence:

Q:What I suggest to you is that you did not tell Adrian Dale that you were experiencing difficulty with plasterboards being stacked horizontally?
A:I would have mentioned it but I can't tell you right here and now; I don't know.
Q:You would have mentioned it. You can't say definitely whether or not you did mention it, can you?

A: I cannot.

When cross-examined by counsel for the VWA, the plaintiff accepted that, when he lifted the plasterboard sheet from the horizontal stack, the far end of the sheet from where he was cutting would still be resting on the stack so that when one got the sheet up, one end was still resting on the stack.

22 January 2007

The plaintiff gave evidence of working on site at Narre Warren on 22 January 2007. He said that the plasterboard sheets had been delivered and stacked horizontally. He said that he was down to the last couple of sheets and, as he was performing the second cut, he felt ‘three cracks in [his] back’ and ‘horrific pain’.[56] From that time on, the plaintiff was referred to a number of medical practitioners before Mr D’Urso, a neurosurgeon, performed an L5-S1 fusion on 10 October 2012.
[56]The plaintiff gave several accounts of what occurred on 22 January 2007. See [99] below.

Working with Hayes

When giving evidence, the plaintiff also described how he worked with Hayes, an employee. He said the ‘standard manner of operation for a two man team’ was that he would measure and cut the a sheet, while Hayes was nailing the previously cut sheet up, although on occasions it would take two people to get a sheet into position for hanging. In cross-examination, he agreed that Hayes was his offsider and further the plaintiff determined the method by which sheets were cut.

The plaintiff was asked about the difficulties in cutting on the stack and further ‘why didn’t you get Mr Hayes to assist you?’ to which he replied: ‘If that happened, the job would never get finished’.

Evidence adduced by Boral
Adrian Dale

Dale was a contract coordinator whose duties involved attending the sites and determining whether they were ready to receive the plasterboard sheets. Once the plasterboard sheets had been delivered, his duty was then to organise the hangers.

Sometimes, Matthews would see the plaintiff every day for a week. But, on average, he indicated he would see him twice a month. He would see him for approximately 30 minutes a month on average. He denied that he was not in a position to give an accurate description of the way in which the plaintiff worked based on the infrequency of his contact with him on site. He had never seen the plaintiff cutting on the stack.

Dale’s evidence was put to Matthews. It was suggested to him that the reason that he failed to observe what was seen by Dale was because of the infrequency with which he observed the plaintiff. He denied this proposition, though he accepted that Dale had more access to the plaintiff than he did by a great deal.

In re-examination, Matthews estimated that the plaintiff was with him on site for 15 minutes whilst he was doing his work approximately three times per week. He said that it was easy for him to observe the plaintiff perform his work given the estates on which his work was performed. One could see him next door through the house frames. The transcript is as follows:

Q:You were asked, Mr Matthews, about your observations of Mr Housden on the work site. Are you able to tell His Honour, in those observations did you observe — what did you observe about the plasterboards on site? Were they stacked horizontally, or did you observe them stacked vertically at any stages?
A:The sheets came stacked horizontally. They were stacked horizontally.
Q:When Mr Housden was on site, what did you observe about Mr Housden and what he did with those horizontal sheets throughout the course of the work that you saw?

A: Stood vertically to cut them.

First, the plaintiff said that Matthews’s evidence was not put to the plaintiff in cross-examination or to Dale in re-examination; Browne v Dunn.[83]
[83](1893) 6 R 67; see [146]–[147] below.

Second, the plaintiff said that Matthews had limited opportunities to observe the plaintiff cutting plasterboard: he would only see him 30 minutes a month on average. However, this submission understates the ability of Matthews to make his observations and their frequency. Matthews was a stopper, working closely with the plaintiff and Hayes. He was in a position to give an accurate description. He worked with the plaintiff on ‘estates, single houses’. He found it very easy to observe the plaintiff when working on estates ‘[b]ecause we would be working next door to each other and be able to see through the houses’. He said that the frequency of his observations varied: ‘because sometimes we’d be working on the same — sometimes I’d see him every day for a week but I’ve said “average twice a month”’.

Observations about Matthews

There was no attack upon Matthews’s credit. His evidence was directly contrary to that of the plaintiff; he saw him often and had a good chance to observe the plaintiff’s method of work. In my opinion, the judge was justified in giving weight to his observations.

David Tunne

In his examination-in-chief, Tunne said that he did labouring work for the plaintiff over a 12 month period commencing March 2004, working full time. Tunne was instructed in relation to what he was to do on site by the plaintiff and Hayes. He confirmed that the sheets were originally delivered ‘stacked against the wall’ but were subsequently delivered ‘flat on the ground’. Tunne described the cutting of the sheet in a vertical manner. He personally cut the plasterboard sheeting once or twice whilst working for the plaintiff. Tunne said he observed plasterboards being taken off the horizontal stack and cut vertically. The transcript is as follows:

Q:Just stop for a moment, can you listen to my question. I asked you when the boards were delivered horizontally did you observe how they were cut when they’d been delivered horizontally?

A: Yes.
Q:You’ve observed them being cut once they’re delivered horizontally. What did you observe? How were they cut?
A:The top sheet was taken off the pack, stood vertically against the stack and then cut until a point in time it got down to the last couple of boards and the board that you’d pull off wouldn’t hold itself when you’d go to store it, it’d slide out, so that you’d have to stack the rest of them up against the wall and you would continue just cutting vertically.
Q:From the start of the stack, as I understand it, your evidence is that they were pulled down. Is that correct?

A:       Yes.
Q:       They were rested against the stack?
A:       Yes.
Q:In that fashion how many people used to lift those boards off the top of the stack? Was it a one man, two man job, three man job?
A:Paul was doing it by himself, but we’d try and – no, Paul was doing — the first part of the stack was done by Paul, yes, or Brett (indistinct)
Q:You described once the boards get to a certain level then if they’re standing up the stack won't support them. Is that correct?

A: That's correct, yes.
Q: What was the process of cutting once the boards got to a certain level?
A:You would stop cutting and stand them up, it was just easier and quicker. Then stop work and then stand them all up and then continue cutting vertically.

Q: So what would you stand them up against?
A: The kitchen wall.
Q:Would it be the process that down to a certain level they would be lifted up one at a time and stacked vertically, or would they all be lifted up off the stack?
A:Yes, one at a time, two guys would move them across. Paul would slide the sheet off to us, Brett and I would pull it up and then we would walk across to the wall and drop it and then stand them up, and repeat that process until all the sheets were stacked.
Q:When you say "repeat that process until the sheets were stacked", do you do mean they were stacked horizontally or vertically?

A: They were stacked vertically against the wall.
Q:Once they were stacked vertically as you have described, how was it that they were then cut?
A:They were then cut in the same way with a set square, scored downwards and brought to them.
Q:So in the fashion you described as when they were delivered vertically. Is that correct?

A: That's right.
Q:Mr Tunne, are you able to tell His Honour please that fashion in which you have described the boards were cut, I am talking about after they're delivered horizontally?

A: Yes.
Q:That fashion you have described where they are lifted off, placed vertically and then cut, are you able to state what percentage of the time that system of cutting was employed? Was it 100 per cent or was it some period or some percentage less than that?

A: 99 per cent of the time, it was always cut like that, yes.
Q:For the remaining 1 per cent are you able to tell His Honour, again after they have been delivered horizontally, for that remaining 1 per cent how was it they were cut?
A:If there was a short section, a very thin section that needed to be cut then, yes, they would run the knife down the board horizontally and just fold it underneath itself and then cut the back, cut the rest of the sheet and take it away.
Q:You have described a system where the board is laying horizontal on the stack. Is that correct?

A: Yes.
Q:Under what circumstances would it be that it would be cut in that fashion?
A:Only if it was a short piece, it was easier just to cut a shorter piece off the board than to stand it up.
Q:This is around 1 per cent of the time that you described. Is that correct?

A: Yes.
Q:You have described a system where the board is cut or scored from the top of the stack. Is that correct?

A: Yes.
Q:Are you able to tell His Honour where it is the person doing the cutting would stand? Would they stand behind the boards or would they stand to the end? How would they stand?
A:Yes, the cut would be at the end of the stack and he would cut from one side and then walk around the other side and cut the rest of it and fold it under.
Q:You have used the motion of your hand by lifting upwards and folding under, at what point would you lift up? In reference to the score mark, at what point would you lift up?

A: At the score mark.
Q:Are you able to tell His Honour why it is you would lift it at the score mark?
A:So when you put your knife through that you wouldn't cut the sheet underneath, and you also need to lift it to break the plasterboard as well.

Counsel for Boral described to Tunne the plaintiff’s evidence as to horizontal cutting of boards on the stack. Tunne said that he had observed the plaintiff cut boards in that way but not with the frequency described. He confirmed his earlier evidence which was that, for 99 per cent of the time, the boards were cut by resting them up vertically. When asked to estimate the percentage of time that the plaintiff cut the boards in the fashion which had been described to him, he said that did not know and ‘I can’t say how often he would have cut them horizontally. You’re making me doubt how many times they did it vertically. No, I don’t know how many times [the plaintiff] cut it horizontally’.

In cross-examination, Tunne said that he spent much of his time working with Hayes in hanging plasterboard sheets, most of which had been cut by the plaintiff, and that his attention was primarily diverted to attending to what was going on in the room in which he was working. He agreed that he had given evidence that the plaintiff cut sheets that were laid out horizontally and that, whilst the plaintiff was cutting sheets, his attention was in large part devoted to the hanging of the sheets in walls and ceilings of other rooms. Tunne further said ‘the first board on top of the stack would be cut horizontally to quickly get a few of those blocks off at times. I don’t know the frequency of how he cut it horizontally’. Tunne said that he had also observed Hayes cut plasterboard sheets horizontally to prepare smaller sections of sheets. Tunne said he did not know ‘how many times [the plaintiff] cut it flat. I believe that it was always easier to stand on edge. It just makes sense to stand the sheet on edge, with a set square’. Dale’s observations of the plaintiff was put to Tunne who said that he did not know the frequency with which the plaintiff was cutting horizontally because he was not closely watching him and was primarily concerned with tasks in other rooms.

In re-examination, Tunne said one could see through the whole house because it was at framework stage; the ceilings were up but the walls were not. He indicated that the majority of the cutting was done by the plaintiff and that he would carry out cutting every day. The cutting of the sheets whilst in a vertical position ‘was done way more’ than cutting them horizontally.

Observations about Tunne

There was similarly no attack on Tunne’s credit. As is plain, his description of the method employed by the plaintiff accords with that of Matthews. Asked about the frequency with which the plaintiff employed this method, Tunne said: ’99 per cent of the time, it was always cut like that, yes.’ Tunne was asked about the remaining one per cent. He said: ‘If there was a short section, a very thin section that needed to be cut then, yes, they would run the knife down the board horizontally and just fold it underneath itself and then cut the back, cut the rest of the sheet and take it away’. It is true that Tunne could not exactly specify how often the plaintiff cut the plasterboard as it was lying horizontally on the stack; but, the plain substance of his evidence is that the cutting was overwhelmingly done when the boards had been placed into a vertical position.

The judge’s findings should be upheld

In my opinion, there was no error in the judge’s finding that, after Boral commenced delivering plasterboard sheets in a horizontal stack, the plaintiff did not cut it in the way in which he said he did in his evidence-in-chief.

The plaintiff’s evidence was contradicted by the three men with whom he worked in the relevant period. Hayes, in particular, worked as the plaintiff’s assistant throughout. Whereas the credit of Hayes was impeached, the criticism of Matthews and Tunne was that they had insufficient opportunity to observe how the plaintiff worked. I can see no error in the judge’s rejection of the attack on Hayes’s credit. The notion that he carried a grudge against the plaintiff such as to give false evidence was barely pursued and certainly not established. Moreover, the transcript of his evidence suggests that he was genuinely puzzled by the plaintiff’s account of how he cut plasterboard; it ‘would tear the face of the sheet’. Similarly, the accusation that Hayes was lying was based on the content of his statement to the VWA and his other statement to Wilson. There was an ambiguity in the phrase ‘cutting off the stack’. Hayes explained what he meant and, any ambiguity may have been due to the fact that the plaintiff had not given a clear account either to the VWA or to his own solicitors of what eventually proved to be his case. There was no attack on the credit of Matthews and Tunne. They also refuted the plaintiff’s account of how he cut sheets of plasterboard.

In addition, the plaintiff was an unreliable witness. His earlier affidavits were inconsistent with his oral evidence. The particulars of Boral’s negligence in his statement of claim gave no real indication of what he said in his evidence. Despite what the plaintiff said, the evidence of Dale that he did not require the plaintiff to cut sheets of plasterboard in a particular way provided a proper basis for the judge to find that the dominant method was not as the plaintiff described. And, despite the plaintiff’s evidence that he had never attended any induction by Boral, there was clear evidence that he had.

It is true that Dale said that he had seen plasterers cutting plasterboard as it lay on the horizontal stack; and, Boral conceded that an inference could be drawn that his general observations included the plaintiff. But, the evidence was of a very general nature and was barely explored in cross-examination.

Where the issue in a case is what exactly a party did or said, the trial judge is in the best possible position to make the relevant findings of fact. In the present case, where the witnesses gave directly contradictory evidence, the advantages of that position cannot be underestimated. The judge can make close observations of witnesses as they give their evidence. On the hearing of an appeal, the judge’s findings are not unassailable; they can be set aside.[84] Findings of fact can be set aside where an intermediate appellate court considers, after a review of the whole of the evidence, as conducted here, that an incorrect inference has been drawn from undisputed facts or where a finding of credit is inconsistent with facts incontrovertibly established or is glaring improbable. In the present case, it has not been established that the judge drew an incorrect inference from the facts as found and nor has it been established that the trial judge’s findings on credibility were glaringly improbable. On the contrary, in my view the findings made by the judge as to the manner in which the plaintiff cut sheets of plasterboard were correct findings on the whole of the evidence.
[84]See Transport Accident Commission v Cuthbertson [2013] VSCA 29 at [91] above.

It will be recalled that the plaintiff asked the trial judge to draw inferences from the content of the various documents produced by Boral as to the manner in which plasterers, including the plaintiff, cut plasterboard after the commencement of deliveries in a horizontal stack.[85] In my opinion, the trial judge was right to rely upon the direct oral evidence of the various witnesses as to how the plasterboard was cut. The relevant inference could not be drawn in the presence of that evidence.

Browne v Dunn[86]

[85]See [38]–[43] above.

[86](1893) 6 R 67. See also Bulstrode v Trimble [1970] VR 840, 846 (Newton J); Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, 22 (Hunt J); Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478, 488 (Ashley and Redlich JJA and Coghlan AJA); Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, [13]–[14], [50] (Redlich JA and Beach AJA); A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189, 202 (Redlich JA and Beach AJA); Baulch v Lyndoch Warnambool Inc (2010) 27 VR 1, 6 (Bongiorno JA and Byrne AJA, with whom Neave JA agreed); Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362, 371 (Gibbs J, with whom Stephen and Murphy JJ agreed); Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509, 531–532 [79] (Nettle and Redlich JJA and Beach AJA); Lord Buddha Pty Ltd v Harpur [2013] VSCA 101, [208] (Vickery AJA, with whom Weinberg and Tate JJA agreed).

During oral argument at trial, the plaintiff contended that his evidence as to the manner in which he cut sheets of plasterboard should be accepted in so far as (a) he was not cross-examined about his evidence and (b) Dale was not re-examined after he had given evidence that supported his account.

The amended notice of appeal contains allegations that the rule in Browne v Dunn was infringed. The contention must be rejected. As Boral said, the generalities in the statement of claim together with what had been said in the ‘serious injury’ affidavits had not alerted it to the case that was opened or to the nature of the evidence that the plaintiff eventually gave as to the method in which he cut plasterboard on the horizontal stack.[87] Having heard the way the case was opened and the evidence of the plaintiff and the cross-examination of Dale, Boral sought out other witnesses to the manner in which the plaintiff performed his work. It located Hayes, Matthews and Tunne and took instructions from them. It was recognised that, in so far as their evidence contradicted that of the plaintiff and Dale, it needed to be put to those two witnesses. The trial judge invited the plaintiff to seek leave to re-open his own evidence and to recall Dale in order that they could comment on the evidence of Hayes, Matthews and Tunne. Notwithstanding that the Court had thereby provided the representatives of the plaintiff with the opportunity to recall him so that he could address the evidence of the new witnesses, that opportunity was not taken up.[88] In the circumstances, there was no breach of the rule in Browne v Dunn.
[87]At trial, counsel for Boral said: ‘… the criticism is what was opened was that this awkward manner of cutting boards on the horizontal stack was a factor which loomed large in the plaintiff’s case, and that has never been pleaded. That has never been telegraphed, never foreshadowed.’
[88]See n 82 above.

The alternative case

The plaintiff did not advance the alternative case before the trial judge.[89] The amended statement of claim is extracted in [14] above. During the opening, it was made plain that the plaintiff’s complaint was about a system of work that Boral required the plaintiff to perform since it commenced the delivery of sheets of plasterboard in a horizontal stack since 2004. As a result of that system of work, it was contended that the plaintiff suffered degeneration to his spine, the injury to which was manifested in the incident which occurred on 22 January 2007. The plaintiff made a forensic decision not to rely solely upon the injury that he suffered on that day. In opening, his counsel said: ‘What's clearly known is that there is a risk from repetitive movement and static loading of the body due to the need to lift sheets from the horizontal plasterboard stack; that that's what caused my client's injuries. It's a clearly defined risk within the defendant's own documentation.’ Further, ‘[o]ur case that is that Mr Housden complied throughout the time that he was working with Boral in the system of work for the cutting and manual handling by him of sheets delivered on a horizontal plane. We say that if he is complying with a designated system of work which was not his to design or implement, but solely Boral's to design and implement, he cannot be liable in contributory negligence.’[90]
[89]See [26] above.
[90]Towards the end of the opening, senior counsel for the VWA required further specification. He said: ‘The pleadings by the plaintiff allege injury from October 1999 until 2007, at least implying a degenerative process affected over time. It has not been made clear whether there is a degenerative process being relied on, or whether what is being relied on is a particular incident of injury happening in February 2007. We would seek to have clarification of what the precise event of injury that is being relied on is before the case proceeds further …’. Counsel for the plaintiff responded: ‘I think the transcript will disclose, Your Honour, that I did indicate that our case was confined to the period commencing in October 2004, but particularly the emergence of symptoms in January 2007 and more particularly on 22 January 2007. I think I said that.’

In Whisprun Pty Ltd v Dixon,[91] Gleeson CJ, McHugh and Gummow JJ said:

It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
As Water Board v Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is ‘necessary to look to the actual conduct of the proceedings’. Thus in Water Board, the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal.[92]

[91](2003) 200 ALR 447.

[92]Ibid 461 [51]–[52] (citations omitted).

This Court is not prevented by any rule from allowing a party to develop a new case on the hearing of an appeal. Whether it should permit a party to do so depends upon a variety of factors including whether, if the new case had been run at trial, any other evidence would have been adduced. In the present case, the plaintiff should not be permitted to run his alternative case. It simply cannot be said of the alternative case that ‘it could not possibly have been met by further evidence at the trial’. The evidence below would have been quite different. Even though there was evidence that the plaintiff was permitted to cut sheets of plasterboard in the horizontal position, there was no evidence of the frequency with which he did so when it was in a vertical position.[93] He gave evidence of the number of sheets of plasterboard that he handled each day. His case was that he cut each of those sheets (apart from those at the top) while it rested on the horizontal stack. It was one thing for that case to be assessed (and met) in terms of the strain it placed on his back and the effect of that strain in causing degeneration to his spine. It would be a different case to assess what strain would be placed and what degeneration caused if his case was that he was cutting significantly fewer sheets in the method he described. The

Court did not hear any evidence on precisely how often the horizontal method was used for it to be able to evaluate whether it was used with sufficient frequency to cause injury. That is why the judge’s finding, with which I agree, that cutting in the vertical position was the ‘dominant’ method, was dispositive of the case that was argued.

[93]Tunne did say that, for 99 per cent of the time, the boards were cut by resting them up vertically: see [136] above. However, Tunne’s reference to ’99 per cent of the time’ seemed intended by way of emphasis rather than intended to convey any real precision.

The plaintiff did not run the alternative case. It was not addressed either in opening or in closing. He chose to advance his case on one factual premise and no other. Had the alternative case been advanced at trial, there would have been real issues of causation. It was not in doubt that the plaintiff already had a degenerative spine. Further, the nature of the activity informs the application of the relevant regulations. Those regulations were never addressed to the alternative case.

In my opinion the appeal should be dismissed.

McLEISH JA:

I agree, for the reasons given by Santamaria JA, that this appeal should be dismissed.

I have also had the advantage of reading in draft form the additional reasons of Tate JA. I wish only to add that, when assessing whether it is desirable to decide issues not strictly necessary to determine,[94] a trial judge should consider in particular whether the court should make findings of fact in relation to those issues. Even if not all issues are to be finally dealt with, it may often still be efficient to make such findings of fact as would be required for the ultimate disposition of all issues in the trial, should their resolution become necessary upon any appeal.
[94]Kheirs (2010) 31 VR 46, 70–71 [103].

That is not to suggest any universal rule. For example, the findings of fact that have been made may dispose of the case in a way that makes further factual

inquiry or legal examination as to particular points meaningless or artificial. I express no opinion as to whether the judge in the present case ought to have determined any or all of the remaining issues in the trial.

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[2015] VSCA 162

25 June 2015