Ivan Fortescue (Junior) v Neville Morrasey

[2000] NSWCA 193

Reported Decision: [2000] Aust Torts Reports 81-575

New South Wales

Court of Appeal

CITATION:	Ivan Fortescue (Junior) v Neville Morrasey [2000] NSWCA 193
FILE NUMBER(S):	CA 40969/99
HEARING DATE(S):	8 May 2000
JUDGMENT DATE:	31 July 2000
PARTIES :	Ivan Fortescue (Junior) (Appellant) Neville Morrasey (Respondent)
JUDGMENT OF:	Handley JA at 1; Powell JA at 18; Stein JA at 22

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC MAL 72/97
LOWER COURT JUDICIAL OFFICER :	Sidis DCJ

COUNSEL:	R V Letherbarrow SC/D M Wilson (Appellant) P H Greenwood SC (Respondent)
SOLICITORS:	Stacks - The Law Firm (Appellant) Pieterse & Pieterse (Respondent)
CATCHWORDS:	NEGLIGENCE - vicarious liability - employee or independent contractor - deemed employee - logging operations - supervision - control - instruction - safe system of work - commonly used system of work - experienced employees - non-delegable duty of care - breach of duty
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Ex parte Walton re Levy (1881) 17 Ch D 746 Muller v Dalgety & Co Ltd (1909) 9 CLR 693 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
DECISION:	See para 17 for orders

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40969/99
DC MAL 72/97
HANDLEY JA
POWELL JA
STEIN JA

Monday, 31 July 2000

Ivan FORTESCUE (Junior) v Neville MORRASEY

Facts:

Ivan Fortescue (the appellant) sued Neville Morrasey (the respondent) for damages for negligence arising out of an accident he suffered in 1993 near Kempsey. The appellant appeals the decision of her Honour Sidis DCJ entering a verdict for the respondent. At the time of the accident the appellant was picking up a load of logs to deliver to the respondent’s mill. An employee of the respondent, Mr Elton, was present and operated a skidder for the appellant. The appellant parked his truck beside a mound of compacted earth. To load the truck Mr Elton pushed the logs up the mound and onto two saplings placed one end on the mound and the other on the truck bolster. Mr Elton was loading a log onto the truck when one of the sapling skids slipped. The appellant directed Mr Elton to lift up the log so that the skid could be repositioned. While the appellant was adjusting the skid, Mr Elton lost control of the log which rolled towards the appellant causing the injury.

At first instance:

The appellant put his case in three ways at trial: the failure of Mr Elton to hold the log; the inadequacy of the system of work; and the absence of any supervision. Her Honour found that the accident was foreseeable but that given the experience of Mr Elton and the appellant, the defendant (Mr Morrasey) was not obliged to provide direct supervision of the loading process. Her Honour found that although a duty of care existed, it had not been breached.

Held (Handley and Stein JJA agreeing):

The respondent was clearly negligent. Mr Elton was negligent and the respondent is vicariously liable for the negligence of his employee. There was a breach of duty by Mr Elton, who failed to take reasonable care and protect the appellant from a foreseeable risk of injury.

Held (Handley and Powell JJA agreeing):

Both the appellant and Mr Elton were responsible for the accident, however the appellant was in overall charge and had a higher degree of responsibility. The percentage of the appellant’s contributory negligence is assessed at 60%.

Stein JA (contrary):

The appellant’s conduct was more than a mere misjudgment. The percentage of his contributory negligence is assessed at 40%.

Orders:

(1) Appeal allowed with costs;

(2) Set aside the judgment of the District Court in favour of the second defendant;

(3) In lieu thereof enter judgment for the plaintiff against the second defendant for $69,682 and costs with effect from 3 December 1999;

(4) Liberty for either party to apply on two days’ notice to Handley JA to vary the judgment to reflect any amounts which should be deducted for workers’ compensation payments made to the appellant;

(5) The respondent to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40969/99
DC MAL 72/97
HANDLEY JA
POWELL JA
STEIN JA

Monday, 31 July 2000

Ivan FORTESCUE (Junior) v Neville MORRASEY
JUDGMENT

1 HANDLEY JA: In this appeal I have had the benefit of reading the reasons for judgment of Stein JA in draft form. I agree that the appeal should succeed but respectfully differ as to the result. I need not restate the basic facts as they are set out in his Honour’s reasons, and my reasons must be read accordingly. 2 The appeal was conducted on the basis of what, in my opinion, was a fiction, namely that the respondent’s common law liability to the appellant was to be determined on the basis that the appellant was an employee. He was in fact an independent contractor being the owner/driver of a timber jinker and the owner of a bulldozer operated by an employee. He even claimed in evidence to be an independent contractor. 3 The trial Judge accepted a submission by counsel for the plaintiff, which does not appear to have been challenged by counsel for this defendant, that s 5 of the Workers Compensation Act 1987, read with Schedule 1 cl 3, applied to the plaintiff as contractor for this defendant as principal so that “the contractor … shall for the purposes of this Act, be deemed to be [a] worker employed by the principal”. The operation of a deeming provision was explained by James LJ in Ex parte Walton re Levy (1881) 17 Ch D 746, 756:

“When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to”.

4    See also Muller v Dalgety & Co Ltd (1909) 9 CLR 693, 696 per Griffith CJ. Clause 3 of the First Schedule does not leave the operation of this fiction to implication because it states that it operates “for the purposes of this Act”. Section 151 provides that the Act does not affect “any liability in respect of an injury to a worker that exists independently of this Act, except to the extent that this Act otherwise expressly provides”. The Act contains many provisions which expressly affect the liability of employers independently of the Act, such as the election provisions, and the caps and thresholds which modify the employer’s liability to pay damages, but I am not aware of any provision which expressly provides that the First Schedule affects an employer’s liability at common law. In my view the words “for the purposes of this Act” in cl 3 of that Schedule are too clear to be ignored. 5 The trial was conducted on a different basis and the respondent represented in this Court by senior counsel did not seek to argue that the appellant should not be treated as an employee. The Court has no alternative but to decide this appeal on the conventional basis adopted by the parties. 6 However Mr Elton, the driver of the skidder, was a true employee of the respondent, who owned and provided both the skidder and the forklift that Mr Elton could use to load logs. 7 The plaintiff, as he and others acknowledged, as the driver of the timber jinker, was responsible for the loading operation, and gave directions to Mr Elton accordingly (AB15, 49, 51, 71, 81). When the fifth log became jammed by the movement of one of the skids, the appellant instructed Mr Elton to move it on top of the fourth log (14-5). He said in evidence that the skidder blade “didn’t stay behind the log, it ended up on top of the log” (15), was on top of the log “instead of still being cut behind it” (16), and he could see this (51). The appellant started to withdraw the skid, but in his own words “I slid it back off the bolster and just as it came off the bolster, the log was coming back off from underneath the blade back” (16). He added in cross-examination (51-2):

“Q. And you physically moved that skid is that right?
A. Yes it was heavy and I couldn’t lift it and I just slid it backwards.
Q. And in doing so you were physically trying to make space into which the fifth log would drop, is that right?
A. Yes.
Q. And as you did that the fifth log did move?
A. Yes.
Q. But rather than going down it came towards you is that right?
A. Yes it came back further and I don’t know if it actually hit the end of the bolster or not but it came back off it.
Q. So the proposition I am putting to you is this, that it was your actions in attempting to carry out that manoeuvre in moving the fifth log into position by you taking hold of the skid that caused this accident wasn’t it?
A. Well who else was going to do it?
…
Q. What I am suggesting to you is that in you taking hold of the skid in attempting to move the skid so as to have the fifth log drop into position?
A. It still had to be done yes.
Q. Yes, but that was your decision to do that?
A. Well it was my job because the skidder driver doesn’t get on and off the skidder.
Q. That’s right it was your job in relation to your position as a truck driver?
A. Yeah.
Q. And hence you were entirely responsible, not Mr Elton, you were responsible for that action, weren’t you?
A. For that action yes”.

8    He did say at one point that his log (skid) had not moved when the fifth log started moving (30), but this is contrary to his evidence-in-chief, and his detailed evidence in cross-examination that has been referred to. The trial Judge found that Mr Elton “lost control of the fifth log”, but did not find that this occurred because he moved the skidder or its blade and the plaintiff did not suggest this. The proper conclusion on all this evidence is that the fifth log moved when, as the plaintiff said in two places, he started to withdraw the skid. The log could move because Mr Elton was attempting to keep it in place with the blade back on top of the log, rather than having the blade “cut behind it”. 9    Mr Elton was not called as a witness and the Court should therefore find that he was negligent in attempting to hold the fifth log by the blade back on top of it instead of having the blade “cut behind it”. It may have been necessary to have the blade in this position so that the skid could be withdrawn, but no one said this, and this possibility must be ignored. 10    Mr Letherbarrow SC for the appellant argued that the respondent, as the deemed employer, owed a non-delegable duty of care to the appellant to establish and enforce a safe system of work. The evidence in support of this case was given by Mr O’Neill an “expert”. His report was admitted without objection and he was not cross-examined but he did little more than point to alternatives and state that the system used was not the safest available. There was no evidence from the appellant or anyone else who worked in the industry that there was any practicable alternative system. The trial Judge dismissed the suggestion that these two experienced employees needed supervision. 11    This was the normal system for loading logs in the experience of the appellant, Mr Elton, and the respondent. The trial Judge found that the appellant and Mr Elton were very familiar with it (76). The appellant had been working as a timber truck driver since 1980 (5). An alternative identified by Mr O’Neill involved the construction of an earth ramp, it seems, on the mound. The nature of such a ramp was not explored in evidence, and the appellant himself did not suggest that this should have been done or explain how it differed from the earth mound that was used. There were only three loads to be taken from this site (combined 235) and it was reasonable to use the existing mound for this purpose, and the appellant told Mr O’Neill that this is what he would have done in Mr Elton’s position (235). 12    Neither the appellant nor Mr O’Neill claimed that the forklift should have been used and the trial Judge found that Mr Elton’s decision to use the skidder was not negligent. In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 the majority had no difficulty in rejecting the suggestion, in that case, that a forklift truck should have been used (ibid 31, 46, 48). Significantly the injury in that case occurred while loading logs with a bulldozer which pushed them up a ramp and over skids onto a truck. Mason J said at 32:

“… Gray and Stevens both had considerable experience. The loading operation was dangerous but ‘anything in the bush is dangerous’ and if the work was to be performed at all, Gray and Stevens were ideally suited to perform it”.

13    The final suggestion from Mr O’Neill was that the fifth log should have been allowed to roll between the third and fourth logs enabling the skid to be moved back with complete safety. However the appellant was in charge (49, 71) and he decided that the fifth log would be held on top of the fourth, and not rolled between the other logs. He said that “there was no other way” (50), but even if there were he made the choice and gave the instruction on which Mr Elton was acting when the accident occurred. 14    The instruction to hold the fifth log on top of the fourth was not part of the system being used at the time. It reflected a decision taken on the spot to deal with an unexpected difficulty. It may have been negligent but it was no part of the system. The appellant said that he had struck this problem before, and had previously stacked the fourth log on top of the fifth to reposition the skid and had no problem (16). 15    In my judgment the appellant failed to establish that there was a reasonably practicable alternative to the loading system that was being used when the accident occurred. It is significant that in Stevens v Brodribb Sawmilling Co Pty Ltd (above) the High Court held that the sawmiller had not breached a general duty of care to his contractors by allowing them to use the same loading system. Although an employer may well owe a higher duty than that found to exist in that case, and an employer’s duty cannot be performed through a delegate, the instruction to hold the fifth log on top of the fourth was at most a casual act of negligence on the part of the appellant. However I have not been persuaded that this instruction was negligent. The appellant repudiated such a suggestion when he said there was no other way of dealing with the situation. Mr O’Neill did not suggest that the decision to leave the fifth log on top of the fourth was negligent. He merely stated that it could have been rolled forward to rest between the logs already on the truck. 16    The appellant has established that Mr Elton was negligent in placing the skidder blade on top of the fifth log “instead of being cut behind it”. However he was aware of the position of the blade (51). There is no evidence that the log moved because Mr Elton moved the skidder or its blade. The proper conclusion from the appellant’s own evidence, as I have held, is that the log moved and Mr Elton lost control of it when the appellant started to slide the skid away from the truck. The appellant and Mr Elton were both to blame for the accident, but the appellant was in overall charge and was aware of the position of the fifth log, the skid, and Mr Elton’s use of the back of the blade to restrain the log, and he disturbed the situation by starting to withdraw the skid. In these circumstances I am unable to see any basis on which Mr Elton could be thought to be more responsible for the accident than the appellant. On the contrary it seems that the appellant who was in overall charge had a higher degree of responsibility than Mr Elton. I would therefore apportion responsibility to the extent of 60% to the appellant and 40% to Mr Elton. 17    In my opinion the following orders should be made:

(1) Appeal allowed with costs;

(2) Set aside the judgment of the District Court in favour of the second defendant;

(3) In lieu thereof enter judgment for the plaintiff against the second defendant for $69,682 and costs with effect from 3 December 1999;

(4) Liberty for either party to apply on two days’ notice to Handley JA to vary the judgment to reflect any amounts which should be deducted for workers’ compensation payments made to the appellant;

(5) The respondent to have a certificate under the Suitors Fund Act.

18    POWELL JA: Quite apart from the fact that, as Handley JA has noted in his Judgment, which I have read in draft, the proceedings, at first instance, and on appeal, were conducted upon a basis which I regard as being, in law, a fiction, the Court, in seeking to resolve the questions involved in the appeal was faced with the task of endeavouring to make some sort of sense of the evidence as to the accident which, at trial, had been left in a complete and utter shambles, an endeavour in which the Court received no real assistance from counsel for the Appellant despite the fact that he had appeared for the Appellant at the trial. 19    Despite the fact that each of Handley JA and Stein JA in their respective judgments appear to have adopted a version of the events which led to the Appellant sustaining his injuries, which version, at least in general terms, accords with that adopted by Sidis DCJ in the Judgment she delivered, I am far from satisfied that that version truly records what happened. On the contrary, my understanding of the evidence suggests to me that, being aware that the fifth log was being held in a position of unstable equilibrium, the Appellant straddled the front skid, leant forward, placed his hands under the skid and started to slide the skid backward (Combined AB 16). To undertake such a manoeuvre in such circumstances was, in my view, foolhardy in the extreme, for it must have been obvious that if - as, indeed, occurred - the fifth log slipped from under the skidder blade, it would drop onto the front skid and cause it to rear up and injure anyone who was straddling it. 20    However, in view of the version of events adopted by Handley JA and Stein JA, my understanding of the evidence is of no relevance except in relation to the question of contributory negligence. That understanding would lead me to apportion to the Appellant a higher degree of responsibility than proposed by either Handley JA or Stein JA. However, so as to produce an order of the Court, I am prepared to adopt the 60% proposed by Handley JA. 21    In the result, I agree with the orders proposed by Handley JA. 22    STEIN JA:

Introduction

23    The appellant, Ivan Fortescue Junior, appeals a decision of Sidis DCJ entering a verdict for the defendant, Neville Morrasey (the respondent to the appeal). The appellant had sued the defendant for damages for negligence arising out of an accident he suffered on 12 August 1993 at Mungay Creek, near Kempsey. At the time of the accident an employee of the defendant, one Phillip Elton, was loading logs onto the plaintiff’s truck, a timber jinker. The appellant/plaintiff was to transport the logs to the defendant’s mill. In brief, the appellant’s case at trial was that in carrying out the loading operation, Mr Elton lost control of one of the logs, which rolled towards the appellant causing him injury. 24    The case was conducted on the basis that there was a relationship of deemed employment between the appellant and the defendant. It seems that although the appellant was a contractor to the defendant, the parties were content for her Honour to determine the case on the basis of a relationship of employer/employee between the parties. This may explain why no reference was made by the parties, or her Honour, to the relevance of Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16. That being so, this Court should approach the case on the same basis as the District Court.

The judgment at first instance

25    Her Honour noted that the appellant put his case in three ways. First, the failure of Mr Elton to hold the fifth log in place. Secondly, the inadequacy of the system of work. Last, the absence of any supervision. 26    Her Honour found that the accident was foreseeable. She found that, bearing in mind the experience of both Mr Elton and the appellant, the defendant was not obliged to provide direct supervision of the loading process. While there was an alternative procedure available, a fork lift, it was slower. Movement of the sapling ‘skid’ during loading was a common occurrence. The system of loading used was a common one and both Mr Elton and the appellant were experienced workers. 27    Her Honour said that it was unrealistic that the defendant should have directed the appellant not to use the system in question. It was reasonable for the defendant to have allowed the appellant to select the method of loading. Her Honour found that there was no breach of the duty of care, which she found existed. While it was not necessary to determine the question of contributory negligence, her Honour said that it ‘would have been substantial’. Her Honour assessed damages, which are not in dispute on the appeal.

The facts of the accident

28    Central to the case on appeal is a consideration of the facts of the accident. While her Honour apparently had no difficulty with them, the Court spent considerable time at the hearing of the appeal in endeavouring to understand them. 29    Her Honour said:

There is little dispute concerning the facts of the accident. They have been provided consistently by the plaintiff since the date of the accident. He stated that he was in the process of loading his timber jinker with Mr Elton who drove the unregistered John Deer skidder. The skidder he described as, ‘like a tractor with a blade on its front which was used to push logs up a ramp and onto the truck’. The ramp was constructed of two saplings which rested on the side of the truck in bolsters and on a mound of dirt on the ground adjacent to the truck.
I have photographs of the John Deer skidder and diagrams of the mound in evidence. It is apparent that the mound of dirt was semi-circular in shape so that the wheels of the truck could be parked adjacent to the base of the mound but there was a gap between the top of the mound and the tray of the truck which needed to be bridged by the two saplings or skids.
After Mr Elton had pushed four of the logs onto the truck to form the base upon which other logs would be loaded he was in the process of loading the fifth. As he pushed the fifth log onto the jinker one of the saplings slipped up inside the bolster. The plaintiff directed Mr Elton to lift the fifth log onto the top of the fourth log, and to hold it in that position whilst he slipped the sapling back into place in the bolster.
Whilst the plaintiff was doing this, Mr Elton lost control of the fifth log and it rolled down towards the plaintiff striking the sapling causing it to rise up and catapult the plaintiff into the air. He landed, he said, beneath the truck close to the petrol tank at the front of the vehicle. At the time that he was struck by the sapling he was straddled, that is he was standing with one leg on each side of the sapling.

30    Before examining the evidence given before her Honour, it may be noted that the only eye witness to the appellant’s accident, Mr Elton, did not give evidence. Moreover, the trial judge accepted the credit of the appellant. Another employee of the defendant, a Mr Cooper, gave evidence, but this added little to the case. The defendant gave evidence which, on the issues before the Court, was of marginal significance. A report of an expert, Mr O’Neill, was tendered in evidence although he was not called to attend for cross-examination. His report concluded that the system of work was unsafe and proffered reasonably available alternatives. 31    What follows is a summary of the evidence of the appellant, the only direct evidence of the accident. The appellant was an experienced timber jinker driver. Two days before the accident he attended the subject site, at the request of the defendant, to pick up logs to deliver to the defendant’s mill. He did one load and returned on 12 August 1993 to remove some more loads of logs. Mr Elton, who he knew, was present and operated a skidder for the defendant. A photograph of the skidder was in evidence, as well as a diagram of how it was used to load timber onto the jinker. The skidder is like a dozer with a movable blade in the front. 32    The appellant drove his jinker to the dump site on private land and parked it as close to the dump as possible and alongside it. The dump was a mound of compacted earth which had, according to the defendant, been in place for 10 to 12 years. It appears that the mound was of a reasonable size to accommodate the skidder loading 12m logs. 33    After parking alongside the dump, there was still a gap between it and the trailer of the truck. In order to load the trailer Mr Elton would push the logs (one at a time) up the mound and onto two bloodwood saplings, which were placed over the gap, one end on the mound and the other on the bolster of the truck. These were called ‘skids’ and were (in Imperial measure) 8 to 10 feet long and 8 to 10 inches in diameter. 34    The truck did not have a tray top but had what was described in evidence as two very large metal Us between the axles. This is what the logs rest upon. The procedure is that five 12m logs are placed side by side on the trailer to form a bed or base. Further logs are then placed on top in the form of a pyramid, which are then chained together. 35    There was some doubt on the evidence as to whether the skids fitted into grooves on the side of the truck or rested on the edge. There was also doubt as to what part of the trailer constituted the bolster. As to the first, it seems that the skids did not fit into any apertures but rested on the edge of the side of the truck. According to the Shorter Oxford English Dictionary, the bolster is the transverse bar over the axle of a wagon. This definition is consistent with the appellant’s description of the very large metal Us between the axles. 36    Mr Elton had loaded four logs on the trailer. One more was necessary to complete the bed logs. The appellant then described what occurred when Mr Elton rolled the fifth log onto the truck.

He [Elton] proceeded to roll the fifth one up and as he pushed it up the skid at the front of the end of the truck, on the front bolster, it slipped up to the fourth log and he lifted it up on top of the other four so as I could shift the skid back, so he could let it come back onto the bolster.

37    The appellant said that at that point of time the skid closest to the front of the trailer moved and came to rest up against the base of the fourth log. The appellant told Mr Elton to lift the fifth log up so he could pull the skid back. Mr Elton lifted it on top of the fourth log and held it there. The appellant then stood over the skid to slide it out. 38    The appellant then said:

A. … I slid it back off the bolster and just as it came off the bolster, the log was coming back off from underneath the blade back.
Q. And coming back towards where?
A. Back towards me.
Q. What happened then?
A. Well I went to jump off the skid, but before I had time to, the log come back off the end of the bolster and hit the skid down between that bit of dirt there and the truck. And the skid come up between me legs and catapulted me.

39    As a result the appellant fell off the mound onto the ground fracturing his left femur. 40    The appellant’s evidence was that he had not before experienced the particular problem which occurred. He acknowledged in cross-examination that the skid logs often moved, but he had not experienced a situation where the skidder had not been able to hold a log in place. 41    In cross-examination the appellant explained that it was necessary to move the skid back because it was in the way of placing the fifth log in its correct position on the trailer cradle. He confirmed that Mr Elton had log five sitting on top of log four and that he told Mr Elton to hold it there while he shifted the skid. However, Mr Elton lost control of the log. 42    The appellant was asked if he physically moved the skid. He responded in the affirmative that he ‘slid it backwards’. As he did this, the fifth log started to move. 43    Two aspects of the evidence require closer attention. When the appellant described how the accident occurred he twice referred to the blade of the skidder not staying behind the fifth log, but resting on top of it. 44    In examination-in-chief he said:

Q. And how did he hold it there?

A. Oh well, as he lifted it, I don’t know how, but the blade didn’t stay behind the log , it ended up up on top of the log. [Emphasis added]

45    In cross-examination the following questions and answers took place:

Q. Right, now the fifth log was sitting above the fourth log was it?
A. Yeah.
Q. It was, in effect, jammed?
A. Yeah.
Q. Is that right?
A. It was sitting up there and the blade was sitting on top of it instead of still being cut behind it. [Emphasis added]

46    My understanding of the appellant’s evidence is that if Mr Elton had kept the skidder blade behind the fifth log, it could not have rolled off the fourth log towards him. 47    The second aspect of the evidence is whether the action of the appellant in moving the skid caused the fifth log to come off the fourth log and roll towards him. On a consideration of the whole of the evidence, I do not see that it can be so concluded. 48    The other observation which may be made about the appellant’s evidence is that, as her Honour found, he was generally consistent in his explanations of how the accident occurred. This is so whether one examines his oral evidence, the history given to doctors or insurance reporting. 49    Notwithstanding a careful reading of the evidence it is still difficult to understand precisely how the skidder and the appellant fitted on the top of the mound. In particular, their respective positions at the precise time of the accident is unclear. It is not easy to understand exactly where the appellant was crouched on the mound when he was straddling the skid immediately prior to the accident occurring. Notwithstanding the imponderables, in the end I have concluded that, for the purposes of determining the issue of liability, they do not matter. 50    The balance of the evidence on liability did not take the appellant’s account much further. The defendant said that the mound had been there for 10 or 12 years. He had visited the site about two or three weeks before the accident. The purpose of the mound was to provide elevation to load the logs onto the trailer. Mr Morrasey said that the mound should have a straight edge so that the truck could ‘fit in’. He was unaware that the mound in question was semi-circular in shape. The defendant also said that he supplied a fork lift but the skidder was quicker especially for pushing big logs. He left it to Mr Elton to decide which to use. Mr Elton was one of the best skidders on the North Coast with many years experience. The defendant gave no instruction as to how the operation at the dump should take place. He looked after the mill and his employees looked after the bush. 51    Mr O’Neill’s report is useful to understand the loading procedure. The accident is described in his report in terms not very different from that of the appellant in his evidence. There are inconsistencies, highlighted by counsel for the respondent, but I do not think that they matter. The description is generally consistent with that of the appellant, but in any event he was not cross-examined on the passage in the report. 52    Mr O’Neill found the system of work adopted to be unsafe. The danger could have been avoided if an excavator with a log grab had been used or a loading ramp had been built into the side of the dump. Bearing in mind the small size of the job, an excavator may not have been warranted. Constructing a ramp was a possibility, instead of having two loose skids resting on the mound and the bolster. 53    Another option was suggested by Mr O’Neill which did not involve any different plant or ramp construction. The fifth log could have been pushed onto the four other bed logs already in place. It would then have been away from the appellant and would have allowed him to safely move the skid.

Negligence

54    Her Honour did not specifically find that Mr Elton was not negligent, although it may be possible to infer this from what she said. However, it seems to me that, on an examination of the evidence, Mr Elton was negligent. He failed to hold the fifth log in position over the fourth log. He lost control of it. The reason this occurred may be inferred from the uncontradicted evidence of the appellant (Mr Elton did not give evidence) that Mr Elton failed to keep the blade behind the fifth log to prevent it rolling towards the appellant. The defendant is liable for the negligence of his employee. Her Honour found that the defendant owed a non-delegable duty of care to the appellant. In my opinion, there was clear evidence of a breach of duty by Mr Elton to protect the appellant from a foreseeable risk of injury. He failed to take reasonable care and his act was the material cause of the injury. The defendant is vicariously liable for Mr Elton’s negligence. 55    This is enough for a finding on liability. However, I am also of the view that the respondent failed to provide a safe system of work. The respondent provided no supervision at all, preferring to leave his employees and the appellant to ‘their own devices’ since they were experienced workers. 56    Her Honour found that the duty to provide a safe system of work was not breached for three reasons. First, the system was one commonly used. In my opinion, this does not alleviate the respondent from his non-delegable duty to ensure the safety of the system. Secondly, that Mr Elton and the appellant were experienced. That this was so does not relieve the respondent from his duty. The duty is not simply discharged by employing experienced workers. Thirdly, it was reasonable for the respondent to permit the employee to select the method of loading. I do not see that it can be reasonable for an employer to allow employees to determine the means of work when the duty owed is non-delegable. 57    Moreover, the means of avoiding the risk of injury, which was high, were minimal. The construction of a simple ramp of saplings fitting into the side of the dump should not have presented any real expense or difficulty. Even more obvious is Mr O’Neill’s suggestion of pushing the fifth log onto the other logs on the load so that it couldn’t roll back towards the appellant. This would have allowed the appellant to safely replace the skid. 58    In my opinion, and on the basis of the way the parties chose to run the case before her Honour, the defendant was clearly negligent. 59    Although her Honour did not determine contributory negligence, she found that the appellant was negligent and, if assessed, that the percentage ‘would have been substantial’. Counsel for the respondent has submitted that if the appeal is upheld, the issue of contributory negligence should be returned to her Honour for a new trial. I can see no good reason to do this. Ultimately, no issue of the credit of the appellant arose and this Court is in as good a position as the trial judge to assess the issue. It would be inconvenient and costly to remit the issue, especially since damages are not in dispute. 60    In my opinion, the negligence of the appellant is significant. He directed Mr Elton what to do. He then placed himself in a position involving a high degree of danger should Mr Elton be unable to hold the fifth log in position over the fourth. The appellant was experienced in the loading of timber onto jinkers and was aware that it was common for the skids to move and have to be replaced. His conduct was much more than a mere misjudgment. I would assess the percentage of his contributory negligence at 40%. In arriving at this proportion I have not included any allowance for the suggestion that the appellant’s action dislodged the fifth log because I do not accept that such a finding is open on the evidence. 61    Her Honour assessed the appellant’s damages at $174,204.70. Accordingly, I would enter a verdict in the appellant’s favour for that amount reduced by 40%, viz. $104,522.82.

Orders

62    I would propose the following Orders.

1. Appeal allowed with costs.

2. The respondent to receive a certificate under the Suitors’ Fund Act if
otherwise entitled.

3. Her Honour’s verdict for the respondent on the appellant’s claim against him
be set aside.

4. Her Honour’s order that the appellant pay the respondent’s costs be set aside.

5. Verdict for the appellant in his claim against the respondent.

6. Judgment for the appellant in the sum of $104,522.82 against the respondent.

7. The respondent be ordered to pay the appellant’s costs of the trial.

oOo