King v JMK Constructions Pty Ltd
[1989] TASSC 41
•1 September 1989
Serial No 38/1989
List "A"
CITATION: King v JMK Constructions Pty Ltd [1989] TASSC 41; A38/1989
PARTIES: KING
v
JMK CONSTRUCTIONS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 154/1988
DELIVERED ON: 1 September 1989
DELIVERED AT: Hobart
JUDGMENT OF: Nettlefold, Underwood and Crawford JJ
Judgment Number: A38/1989
Number of paragraphs: 22
Serial No 38/1989
List "A"
File No FCA 154/1988
KING v JMK CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
UNDERWOOD J
CRAWFORD J
1 September 1989
Order of the Court:
Appeal dismissed.
Serial No 38/1989
List "A"
File No FCA 154/1988
KING v JMK CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
NETTLEFOLD J
1 September 1989
I agree with the reasons for judgment of Crawford J. The appeal should be dismissed.
File No FCA 154/1988
KING v JMK CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
1 September 1989
I agree with the reasons for judgment of Crawford J. I would dismiss the appeal.
File No FCA 154/1988
KING v JMK CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
1 September 1989
The appellant's argument is that his injuries were caused by the respondent's negligence in failing to ensure that two "trimmer" joists were securely fixed into position and that such failure was a substantial cause of his fall to the concrete floor below. The learned trial judge held that the appellant had not discharged the onus of proving, on the balance of probabilities, that such was the case.
The trimmer joists were 1200 millimetres long and, mixing the systems of measurement, 4 x 3 inches respectively in height and width. At one end they were supported by a timber bearer and attached to it by skew nailing one 2 inch nail. That bearer was flush across the face of a concrete column. The other support was provided by another timber bearer referred to in the evidence as the main bearer, at right angles to and about two thirds of the way towards the other ends of the trimmer joists, with the result that about 450 millimetres of their length overhung and protruded out from the main bearer. The trimmer joists were each attached to that main bearer by one 2 inch nail which was also skew nailed. There was a gap between the two trimmer joists of about 300 millimetres and there was a similar gap on the other side of each of them between them and two other trimmer joists, each of which abutted longer joists.
Having tacked a piece of plywood while facing away from the column at an angle of about 45 degrees, the appellant stood and went to turn to his left towards the column. He thought that he had his left foot on one of the first two trimmer joists referred to above, and his right foot on one of the other trimmer joists parallel to it 300 millimetres away and abutting one of the longer joists. He was at an angle of about 45 degrees to the column, half facing it. His back was therefore at an angle of 45 degrees to the main bearer. There was a distance of only about 750 millimetres between the column and the outside edge of the main bearer within which he needed to confine his movements. On the other side of that main bearer were the 450 millimetre long ends of the trimmer joists. Because those trimmer joists had only been secured by skew nailing, there was a substantial risk that if a person put his weight on the parts of them which protruded out past the main bearer, the nails would pull out and the trimmer joists would fall, with the person, 7 feet to the concrete floor below. It was the appellant's case that his injuries were caused in precisely that way, and that an alternative method of construction, referred to as the module method, would have caused the trimmer joists to be stable and thereby to prevent his fall.
The only witness to his falling was the appellant himself. His evidence–in–chief was as follows:–
"Right. ....I just tacked that corner. I was kneeling across the short joists, reaching out tacking that. When I stood up I lost me balance. I tried to reach the reinforcing coming out of the column and I couldn't reach it and tipped backwards, causing these – I stepped on that outside edge of the main bearer and they tipped up.
HIS HONOUR: Mr Read would you get your witness to go over that again and relate it in such a way that will be apparent from the transcript?
..................................................
Right. And you were tacking the corner of that sheet of ply closest to the short joists which you'd recently put in place? .....Yeah, this point here.
Is that correct? ......Yes.
Right. When tacking that corner, what were you standing or kneeling on? .....I was kneeling on – across the short joists on an angle towards the corner.
With your back angled towards the cement column?....Yes.
When you stood up having completed the tacking, in which direction did you stand? ....I stood facing that way –
Facing with your left hand side towards the cement column? .....Yes. Yes.
In which way then did you over balance? ...Well I was in the process of turning and I lost my balance so when I –
You were in the process of turning towards the cement column? ...Yes.
Yes....I lost my balance and started to go backwards.
Towards the over–hanging piece? ....Yes.
Of the short joists? .....Hmm.
You tried to grab some reinforcement? ...Yes.
Coming out of the cement column, you missed? ....Hmm.
And what happened? ...I fell further backwards, placing me foot on the outside of the short joists, they tipped up causing me – threw me further backwards.
Are you able to identify which short joist or short joists were the ones from which you stood? ...I think it was the first one in and the one against the long joist – I'm not positive on that.
Those are the two closest to the piece of ply which are just tacked into place? ....Yes.
Now what did you land on? ...On the next level below, on my head, my shoulder and my back."
In that passage of evidence the appellant said that he placed his foot (singular) on the outside of the short joists (plural). He was not sure as to which two short joists he stood on, nor am I sure whether his answer to the question concerning that aspect referred to where he was standing before he lost his balance or where he placed his feet after that event.
In the course of his cross–examination two prior statements, apparently made by him, were admitted into evidence. One was a statement made to a safety officer, Mr Williams, on the day of the accident when the appellant was in hospital. The exhibit purported to be a typed and unsigned copy of a statement, not the original. It appears that the original may have been lost. The appellant was asked whether he accepted it as an accurate record of the statement he made to Mr Williams, to which he responded "I think so". The statement occupied about 25 lines of typing of which only 5 lines described his fall in the following terms:–
"I turned around and lost my balance; in attempting to regain my balance I must have put my feet on the cantilevered section of the trimmer joists, they gave way under my weight, pulling out the skew nails and I fell to the level below".
That statement referred to both feet being placed on the trimmer joists. His attention was not drawn to the fact that the passage "I must have put my feet on the cantilevered section of the trimmer joists" indicated that that was an assumption he had made and not something he in fact recalled.
The other prior statement was a brief one made to an officer from the Department of Labour and Industry on 29 January 1986, which was 3 weeks after the accident. It was signed by the appellant and it described the accident in the following terms:–
"I was making safe a sheet of form ply, when I stood up. I lost my balance placing my foot on the outside of the short joist, causing the timber to cantilever making me fall to the next level below, landing on my head and back".
This statement referred to the placing of a foot (singular) on the outside of a joist and not to the placing of both feet on the outside of joists. When being cross–examined the appellant's attention was not drawn to that aspect of the statement. He simply acknowledged that the exhibit was the statement he had made and signed. The evidence in fact established that two trimmer joists fell to the floor with him.
During cross–examination of the appellant the following passage occurred:–
"HIS HONOUR: You had your back to the column at that stage did you?
WITNESS: No, I was sort of more facing it than because I was –
HIS HONOUR: More facing what?
WITNESS: I was facing the column and the piece of ply that I'd just tacked into position.
MR JACKSON: So your right foot, I suppose, would have been on the joist up against the long joist and your left foot on the next one along? ....Yes, I think so.
Yes, and you're facing more in towards the column? .....Yes.
Than away from it? .... Yes.
Now, nothing in particular caused you to lose your balance, you just started to lose your balance? ...Yes, I think so.
MR JACKSON: Did you start to topple one way or the other? ......Just backwards.
What were you doing at the time? .....Well standing up.
Still getting up or had you stood up? .... I wasn't quite erect, no.
When you lost your balance or when you started to lose your balance, what was the next thing that you did? What was the first thing that you did? ..... I tried to reach for the reinforcing coming out of the column.
Yes, did you manage to reach it? .... No.
And what happened then? .....I was on the ground.
Did you have anything in your hands? ....I may have had a hammer in my hand, I can't remember.
What did you do with your feet when you lost your balance? ....I don't know.
You don't know, you don't know where your feet went? ....Well I was – imagine in my attempt to regain balance I stepped backwards.
You imagine, but you don't know do you? .... Well, no.
And you never have known? .... No.
Precisely what happened? ..... No.
–––standing before you lost your balance, your right foot on the joist up against the long joist, your left foot was inside the long bearer wasn't it? .....Yes.
Now that means that your right foot was on the part of the joist supported between the back bearer, flush against the column? ....Yes.
And the bearer some distance out from the column? ....Yes.
That was an entirely stable situation? ....Yes.
Yes. Both of the short joists that were free standing, if I can put it that way, the middle two joists? ....Hmm.
Fell to the ground with you, didn't they? .....I don't remember, no.
Did you land on one of them? ... I don't remember.
Don't remember Mr Carroll removing one of the short joists from underneath you? .....No.
Do you remember him removing your nail belt? ....I remember someone I thought it was the labourer.
You wouldn't dispute it was Mr Carroll? ...Well I don't know.
You can't? ...No.
You don't know. Well you've no idea how the two short joists are put to you that they did both come down together, if that was so you'd have no idea how it occurred? .....No.
You of course had nailed them in place hadn't you?....Yes.
............................................
If you did tread on the outside ends of one of those joists, that was – or if you did kick it with your foot as you fell, that was only by pure chance wasn't it, wasn't a deliberate act on your part? .....I don't think so, no."
I have underlined significant parts of his evidence.
Analysis of his evidence reveals that in examination–in–chief he said that he placed one of his feet on the outside of the short joists, which tipped up causing him to be thrown further backwards, but in cross–examination he admitted that he did not know what he did with his feet, that he imagined he stepped backwards but did not in fact know that nor had he ever known it, that he could not remember whether the trimmer joists fell to the ground with him and that if he did tread on or kick them it was not a deliberate act on his part. The evidence he gave under cross–examination destroyed the impression that what he had said in examination–in–chief was within his recollection. For this reason I concur with the findings of the learned trial judge expressed in the following passage from his judgment:
"I accept that the plaintiff does not know what happened after he lost balance and failed to reach the column. No other witnesses were called as to how the accident occurred.
Even within the so–called stable area between the main bearer and the bearer adjacent to the column there were gaps of about 300 millimetres between joists and the possibility exists that the plaintiff missed his footing and fell backwards over the main bearer, his body dislodging the two joists which fell with him. In the same way he may have placed a foot in the gap between them on the outer side of the main bearer falling with the same consequence. I think it unlikely that he stepped backward placing all his weight on the overhanging end of one short joist, for that one would think would be likely to dislodge only the joist he stepped on and not the one next to it as well. Even more unlikely is the possibility that he stepped backwards in such a way that both feet were on the unstable overhanging end of both the joists which fell. One thing is quite clear; he did not deliberately step onto the overhanging sections, but lost his balance at some stage before any part of his body touched them. It is possible that the loss of balance was such that no matter how stable the overhanging section was he would have fallen to the ground in any event.
Of all the possibilities open in the circumstances I find I am unable to be satisfied on a balance of probabilities that but for the instability of the overhanging section of short joists he would not have fallen and injured himself. It was submitted that even if I were not satisfied the plaintiff stepped on the outer end of the joist and fell as a result of that, but that the joists were dislodged because he fell upon them, then I should find that had the module method been used he would have fallen no further and would not have been injured. However, I am unable to accept this proposition either for I do not know the manner in which he was falling or what part of the joists he might have hit and to what extent if any the fact that they were so solidly fixed as to prevent their dislodgement might have arrested his further fall.
The onus of proving that the injuries resulted from some negligence on the part of the defendant lies on the plaintiff. Even were the defendant company careless in failing to insist that he should adopt the method of pre–fabricating the section in question, the plaintiff has not discharged the onus of proving that he would not have been injured but for the fact that that method was not used."
I do not accept the argument of the appellant's counsel that regard should be had to the settled belief of the applicant, evidenced by his prior statements and evidence–in–chief, as to the manner in which he fell. His belief must, on the evidence, have been based on inference, assumption or both, and not on any recollection of stepping on the end of a trimmer joist nor it would seem of a joist giving way underneath him.
Counsel referred to the rule in Browne v Dunn (1894) 6 R 67, in which at pp70 and 71 Lord Herschell LC said:
"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross–examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."
Lord Halsbury said at pp76 and 77:
"My lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross–examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to."
I am satisfied that the rule established in that case, as explained in subsequent cases, was not breached by the respondent's counsel at the trial.
By its defence the respondent did not admit the appellant's version of his fall involving him placing his foot on the end of a trimmer joist, thereby putting that version in issue. It was a critical part of his case which he needed to establish. He carried the burden of establishing the cause of his fall, but he did not succeed in doing so. The effect of cross–examination was, on the face of it, to reveal that his version was not in fact drawn from his memory of the events. He did not remember what he had done with his feet. If the two trimmer joists fell to the floor he had no idea how that occurred. If he did tread on them, it was not a deliberate act. If the effect of his answers was contrary to his actual recollection it could have been explained by him in re–examination, but that opportunity was not taken.
The appellant's counsel criticised the cross–examination for not going far enough. He argued that it should have been expressly put to the appellant that his evidence–in–chief was based on a wrong assumption or inference, and that neither of his feet were in fact placed on the outside of a trimmer joist. He submitted that the appellant should have been asked a question to the effect that "if you do not know where you put your feet, why did you say that you placed your foot on the outside of the short joists?" Certainly such questions would have assisted to clarify what he could remember, but I do not accept that it was more incumbent on the respondent's counsel to ask them than it was on the appellant's counsel to clarify the situation in re–examination. There is no rule that what a witness says in examination–in–chief has more weight than what he says in cross–examination. Once all of his evidence has been elicited each part of it must be analysed in the context of it all.
This is not a case where the version of the appellant was left unchallenged, or of him not being given an opportunity to explain himself. Nor is it a case of "two important bodies of evidence which are inherently opposed in substance which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another by like two trains in the night"; per Wells J in Reid v Kerr (1974) 9 SASR 367 at p374. The same judge referred to the unfairness of "questions that half hinted at some imputation, and yet that imputation was never followed up, was never carried through, and was never put fairly and squarely to a witness so as to enable him to cope with it" (supra at p374). No such unfairness exists here. No imputation was half hinted at, or vaguely raised. The appellant was fairly and squarely asked what he had done with his feet and it was put directly to him that he did not know and had never known, and that he had no idea how the two trimmer joists might have come to fall.
One of the grounds of appeal was that the learned trial judge wrongly applied the "but for test" in the circumstances of the case. This was not made out. No matter how he expressed himself, the issue determined by his Honour was whether some negligence on the part of the respondent caused the appellant's injuries. The finding, with which I agree, was that such was not proven to be the case.
For the reasons I have given I would dismiss the appeal. I find it unnecessary to determine whether there was negligence on the part of the respondent in failing to ensure that the trimmer joists were securely fixed, as even if that was the case I agree with the learned trial judge that it was not proved to be causative of the appellant's injuries.
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