Laybutt v Glover Gibbs Pty Ltd

[2005] HCATrans 415

[2005] HCATrans 415

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S47 of 2005

B e t w e e n -

ROBYN VANESSA LAYBUTT

Appellant

and

GLOVER GIBBS PTY LIMITED T/AS BALFOURS NSW PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 JUNE 2005, AT 10.05 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:   May it please the Court, I appear with my learned friend, MR R.I. GOODRIDGE, for the appellant.  (instructed by Firths – The Compensation Lawyers)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR R.C. BEASLEY, for the respondent.  (instructed by Leigh Virtue & Associates)

GLEESON CJ:   Yes, Mr Neil.

MR NEIL:   Your Honours, the Court of Appeal in a passage in the judgment which appears in volume 2 of the appeal book in this Court at the end of page 801, line 55 in the judgment of Justice Meagher stated:

In other words, at the end of the day, his Honour left to the jury to decide –

four matters which are set out at the top of page 802 -

(a)      whether the defendant should have given the plaintiff instructions –

and (b), (c) and (d).  Your Honours, we of course rely on our written submissions.  As far as what we submit is the error of the Court of Appeal is concerned, (a) is dealt with, not entirely but in part, by the evidence of, we would submit, the supervisor, Mrs Brown, who gave evidence which appears in the appeal book at 412 and which is cited in our written submissions.  She was the production manager.  The team leader or supervisor, Mr Spackman, was not called but Mrs Brown had worked on the assembly line but not assembling the machines and she gave evidence at appeal book volume 1, 412 at line 33:

Q.       If you assume that when Mrs Laybutt said to the supervisor “I don’t know how to assemble the doughnut machine”, the response was words “just try and work it out for yourself”, you wouldn’t consider that as proper or appropriate induction - proper appropriate task specific training, would you?
A.       Definitely not.

Q.       Definitely not?
A.       I was not aware of that.

As we put in our written submissions the words were something like, “Just give it a go”, but there is no substantial difference.  In our submission, that was direct evidence of wrongful and improper instructions being given.  As far as points (b), (c) and (d) are concerned, in our submission, in broad, those matters can be dealt with by looking, amongst other things, at the trial judge’s directions to the jury at page 659 of volume 2 of this appeal book.  The instructions were very detailed but a portion, appearing at 659, line 20 is:

Now, if you accept that evidence and you put it into the broader context of the process of assembly and what was required of someone putting this together, what I would suggest to you, and please listen very carefully – what I would suggest to you is that there is evidence from which you might formulate in your own judgment a conclusion that:  a person in the position of employer with the knowledge that it had about this machinery immediately before the incident, should have recognised that it needed to be the subject of an instruction and that if that instruction had been given, the injury would have been averted.

McHUGH J:   Where are the photographs of the exhibits of the machinery?

MR NEIL:    Well, your Honours, the photographs in the appeal book reproduced in black and white are not very good and the original photographs that were exhibits have been brought down here to the Registry and the Registry has been good enough to make some colour photocopies which I understand are available to your Honours.  These are not the entirety of the photographs.  They are in the control of the court officers, but these are much easier to discern than the black and white reproductions in the appeal book.  If I could ask your Honours if your Honours have in front of you five photographs, these are colour photocopies produced in the office. 

The photograph A shows at the right-hand side the machine in its upright position in some place in Queensland, not in, as I understand it, still normal use seemed to be the evidence.  The five sets of cylinders are shown in the centre part of the machine and if one turns that photograph then upside down to go to the left side, one sees a close-up of the five cylinders.  Generally speaking, what happens is, if one goes to set B one sees if the photograph is oriented with the apertures to the bottom of the photograph in the way in which they would be vertically installed, the left is what is called the inner cylinder, although it is in fact a cylinder that has within it a piston at the end of which is a small circular flange.

The outer cylinder is the cylinder on the right with the somewhat wider aperture.  The process involves taking the outer cylinder and either inserting it from the bottom over the outside of the inner cylinder or, conversely, inserting the inner cylinder down into the outer cylinder.  But contrary to what is put in the submissions of the respondent here, the two cylinders are not screwed together.  That part of the submissions of the respondent, we submit, is incorrect.  The two cylinders fit one in the other.  But if one then goes to C one sees that the inner cylinder is the part, the round circular part, that is screwed into the yellow coloured threads which are at the top of the assembly.  That is part of the main machine.

So it is the inner cylinder that is screwed into the threads.  The inner cylinder then goes down into the outer cylinder, which is below the level of a groove – and that groove is part of the system of the outer cylinder – and that groove has to be fitted into or next to the machine so that the groove slots enter the two lugs, which are on either side of the groove.  Then the rest of the outer cylinder is seen - at the very bottom of that photograph is seen the round circular flange which is in fact the bottom of the piston within the inner cylinder.  Thus, it is in its almost assembled position in that photograph.

In D one sees the top of the inner cylinder, which has yet to be raised up to the level of the yellow threads for it to be screwed into the yellow threads, and one sees at the very bottom of D the groove on the outside of the outer cylinder, which has to be positioned so that the lugs that are seen in the horseshoe are between the two grooves of the outer cylinder.

Then in E, if one orients it with the cylinders in the horizontal with the threads at the top, that is the top part of the main part of the machine, in the right‑hand photograph, one can see on the right‑hand piece, the inner cylinder threaded into the yellow or burnished coloured grooves or threads.  The outer cylinder below that into which the inner cylinder, being the thinner cylinder with piston inside, is now inserted but attached to the top of the inner cylinder which is screwed into the threads, the outer cylinder has the groove around it, which in the right‑hand picture, is slotted such that the lugs are properly in position.

Then you are looking at the outer cylinder further down to the bottom, where there is a little screw which holds the circular flange which is at the end of the piston, which goes within the inner cylinder.  As I understand it, that right‑hand one is shown properly in position, but the left‑hand picture in the right‑hand series, the left‑hand cylinder in the right‑hand series shows that the outer cylinder has been placed above the level of the lugs.  The grooves in the outer cylinder are above the level of the lugs; not correctly fitted.  It seems that in the left photo, both pictures have the grooves and the lugs in the right position.  What the plaintiff ought to have done ‑ ‑ ‑

McHUGH J:   Just before you go on, what is the weight of these cylinders, do you know?

MR NEIL:   The evidence was one to two kilos all up.  I think two kilos the plaintiff said of the one that fell on her hand.  The problem to her hand is caused by, if I perhaps can take your Honours back to E, to the right‑hand photographs, conveniently looking at the left cylinder, the way in which the system works is that the dough is forced under some kind of pressure down through the overall system between the two cylinders and it comes out at the bottom, but it is the outer cylinder that is moved up and down because the machine of the lugs into the grooves moves up and down.  The inner cylinder which is fixed and threaded into the threads on the main part of the machine does not move.  The outer cylinder goes up and down such that the circular cap at the bottom is moved up and down to presumably just within the edge of the outer cylinder which is sharp and it cuts the dough and you get a circular piece of dough that falls down in a donut shape ready for baking.

GUMMOW J:   But with a hole in the middle?

MR NEIL:   But with a hole, yes, because it goes down around the round lip.  If you do not have the outer cylinder properly fitted into the lugs and held in the lugs while you are, at the same time, screwing the inner cylinder into the threads, then the outer cylinder may well drop and it is sharp; cuts the hand; causes the injury and the severe disabilities that later set in and there is no medical argument about that.

GLEESON CJ:   About?

MR NEIL:   There is no medical argument about the causation of the injury from the cut.

GLEESON CJ:   Is there an argument about how the injury was sustained, what actually happened?

MR NEIL:   No, your Honour, the –

GLEESON CJ:   I am just looking at the description of what happened on page 590, line 35.  It seems to be signed by your client.

MR NEIL:   I do not think that is the relevant accident, your Honour.  What the evidence was, your Honour, was that she said it fell down, the sharp edge cut her finger and there is no point in the case about the fact that that cut then got worse so that is how she suffered serious disabilities.

Now, your Honours, perhaps I would come to this.  In the directions of the trial judge and in his rulings on the application for a directed verdict which he rejected, at page 656 through to page 660, including the part I have read, there are a number of matters that his Honour put and we would submit quite correctly and, as I understand, are not in issue, as to some of the basics.  At 656, line 25 he pointed out that she had not been given “any instructions” and this was agreed and conceded by senior counsel for the defendant at the trial.  Their point was she did not need any, or seems to be.  His Honour says:

There is no evidence that she got any instructions and therefore Mr Nock says there’s proof she was able to do it safely simply by relying on her own commonsense and observations of a very similar kind to observations which she had made before the injury.

She had never done any more than see someone working on this machine before.  She had never been asked to assemble it before.  Later on when she realised what had gone wrong she acquired sufficient knowledge to know how to do it properly, to put the lugs into the grooves.

GLEESON CJ:   Well, what had gone wrong?

MR NEIL:    What we would say appears to have gone wrong, your Honour, is either she did not have it in the - that is, she did not have the lugs into the groove and/or if she did have them in, she was not holding it tightly to avoid it falling out, which it will fall out until you have the inner cylinder screwed into the top.  And at page 100 of the appeal book she gives some evidence - well, before and after that page, but this particular part at that page.  One of the problems with the transcript, your Honours, is that certain parts said to be re-examination are in fact cross-examination.  At the top of page 101 it was put to her:

Q.       See, I want to suggest to you that on this day it was just simply a situation where you just didn’t hold it tight enough.  That’s really what happened, isn’t it?
A.       I thought I was doing the right way of setting it up.

Q.       Let me suggest to you you were.  You just let it go.
A.       Not on purpose, to end up like this, no . . . 

Q.       I’m not suggesting - anybody suggesting it was on purpose.  I’m suggesting to you that the cause of this accident was the fact that you let the piece of pipe go; is that right?
A.       That’s what you’re saying.

Going back a little, at page 98 she was asked some questions about, at line 20:

Q.       So you had your right hand round the outer tube . . . 

to hold it up?
A.       Yes.

Q.       And . . . screwing with your left [hand] . . . 
A.       Yes.

And it fell down:

Q.       Which part?
A.       The outer tube . . . 

A.       Yes.

She was asked about some pictures, page 99, line 30 or 35:

A.It just happened so quick, I’m sure it was the outer tube.

At page 100, line 25:

Q.       And do you remember whether you had the thread on the left hand - with your left hand actually taking up on the piece of pipe?
A.       I can’t recall.

Q.       Do you remember whether you had the lugs in the groove?
A.       I’m pretty sure I did.

Our submission is she either did not have them in or she did not have it holding tight enough as was suggested to her by counsel for the defendant/respondent:

A.       It just slipped.

Q.       It dropped down?

A.       Yes.

Q.       After you hurt your finger on this particular piece of machinery, did you ever work on it again . . . 
A.       Yes.

Q.       Did you have any difficulties disassembling it or assembling it?
A.       No, because I knew where - what had happened.

Q.       You knew where you had gone wrong?
A.       What had happened.

Q.       Did anybody teach you any more?
A.       How to assemble it?

Q.       Yes?

Seemed to be a question:

A.No.  I stood there and watched Sean but, no, yeah.

At page 103, at line 25 she said:

A.       No, to explain to anybody what the machine is like, they look like pistons on a car, to me.

At line 40:

Q.       Well, you didn’t find it difficult to work out how to do it, did you?
A.       Commonsense, but I didn’t expect it to come off, either.

Our point is she should not have been put in a position of having to work out how to do it.  All that Mr Spackman had to say to her was something along the lines, “Make sure you get the lugs into the groove”, or “Make sure you get the lugs into the groove and keep them tight until you’ve screwed the inner cylinder in” is the simplest thing he could have said instead of saying, “Have a go, see how you go”.

Q.       No.  When you say you didn’t expect it to come off, what didn’t come off?
A.       The outer ring, as I have stated.

Q.       But if it was set up the way we talked about, the only it could have come off, was you letting it go?
A.       It slipped, as far as I’m concerned.  I didn’t have to do it on purpose.  It come off.

At page 104 it was put to her:

Q.       All I am suggesting is that you were in fact doing the job in the correct manner.

Perhaps I should just say briefly on that, no evidence was called from Mr Spackman, the team leader, who had told her to just go and give it a go.  The production lady said that what he had said was the wrong thing to say.  The plaintiff’s case was criticised for not bringing an expert, but the defendant did not bring any witness at all to say what would have been the correct instructions.

We submit the correct instructions would have been along the lines, as I have put to the Court, “get it into the lugs and hold it”, but they then cross‑examined the plaintiff by claiming that she was doing it the correct way – although they did not bring a witness to tell the jury what would have been the correct way.  She, on our case, thought she was doing it the correct way.  She was pitched into a situation of trial and error, and it did not work.  Then it is put to her:

Q.       And the reason why your finger got caught was because you let that piece of pipe go.
A.       I can’t tell you that.

Q.       Well, there’s no other way, is there, for it to have happened on what you have told us?  You had it screwed on.
A.       I didn’t [say] it was screwed on.  I couldn’t recall.  That’s what you said.

Q.       If you hadn’t screwed the top piece on, the whole thing would have come off, would it not?
A.       No, they tie in together and the top bit screws up.

As we understand it, once you have the whole thing together, the top bit screwed – that is the inner cylinder – and the ring around the lugs for the outer cylinder, it will hold together but she did not know this –

Q.       If you’d have screwed the top – did both pieces come down?
A.       Not that I recall.

Q.       No, that’s because you had already screwed the top piece on, is that right?
A.       Probably not all the way.  I can’t recall.

It had been put to her at page 103, line 35:

Q.       And let me suggest to you that it’s one of those situations where it’s a fairly simple operation once you do it once.  Isn’t that right?
A.       You’d assume so.

In our submission, that really tells heavily against the defendant respondent.  They are virtually agreeing that if you know how to do it, or if you have done it once, then it is fairly simple, but as we put in our written submissions, it is like a motor car.  If you do not know how to put it into gear the first time and you just “I’ll try” then something may well go wrong.

Now, the trial judge at page – I was taking your Honours to 656.  His Honour went through a number of matters and explained the case for the plaintiff.  At page 658 his Honour said, line 10:

But there is evidence, and again I only remind you of this and it is a matter which is very much in your province, there is evidence which is sufficient to enable you to form a reasonably accurate picture of what it would have been like to put this piece of machinery together and what it required.  For example, and again this is part of the plaintiff’s evidence which was not contradicted, it needed both hands. There were two initially unconnected parts which in the ultimate process of assembly came together in the appropriate way, but to get them there, you had to hold one part with one hand, and one part with the other.  That is a matter which you are entitled to take into account in looking at the broader picture of the process of assembly.  There are other matters of that kind which, from the evidence, again uncontradicted, would give you a grasp of – and I use that term metaphorically – a grasp of what it would have been like to put this together.

What you also note from the evidence, and again there is no evidence to contradict this, is that as best the plaintiff could tell you, and she was careful in this respect to essentially put it in terms of – I won’t take you to the evidence, but I can remind you that her evidence was, this was the best she could offer by way of explanation in this respect, she did not suggest she had a crystal clear recollection of it, but the only way she could explain how her finger came to be cut, was that her hand was under the sharp edge of the outer cylinder when it slipped, or to put it more accurately, immediately after it slipped, at the point of impact.

I have read your Honours the next passage from the trial judge.

CALLINAN J:   Mr Neil, who was Shaun?  What was his position in the company?

MR NEIL:   Shaun Spackman, your Honour, was the team leader, the supervisor, the leading hand.

CALLINAN J:   And how many people were under him?

MR NEIL:   Your Honour, I will just have to check.

CALLINAN J:   It does not matter, but it was a number of people anyway.

MR NEIL:   The number of people working producing the doughnuts.  That was her normal job, a baker’s assistant.

CALLINAN J:   Was there any cross-examination of her in relation to her evidence at page 38 in which she said she had neither instruction, supervision, nor gloves?

MR NEIL:   No, your Honour, it was never contested.  It was never put to her that she was not telling the truth on anything.  Her credibility was unscathed.  She said she was given none of that.

CALLINAN J:   She said, “I didn’t know how to do it”, and he said, “Just give it a go”.

MR NEIL:   Yes, and it was part of her evidence, as opened by Mr Goodridge to the jury, that she was not given the manual and it was part of her evidence, as opened to the jury, that she was not given supervision.  They are two points in my learned friend’s submission that ‑ ‑ ‑

GLEESON CJ:   What did the manual say?  Do we have the manual?

MR NEIL:   It never came in, your Honour.  The defendant just did not give us any evidence on what you ought to do.

GLEESON CJ:   There is reference in their written submissions to the fact that there is in existence an instruction manual.  Does the instruction manual contain the instructions that you say she should have been given?

MR NEIL:   Your Honour, I think it is fair to say that the point was made that a manual was not given to her but ‑ ‑ ‑

GLEESON CJ:   I know, but there is an argument about what the missing instructions should have been and I just wondered whether a way of finding that out might be to look at the instructions manual, but it is not in evidence.

MR NEIL:   No, we have never had it.  It is not in evidence, your Honour.  We pleaded that she was not given the manual and they denied that.  Mr Goodridge opened that point to the jury and she gave evidence that she was not given a manual and there was no countervailing evidence.

GLEESON CJ:   But there was no evidence about what the manual contained.

MR NEIL:   No.  I would make two submissions.  They are not ultimate submissions, I have others to make, but whatever the instructions ought to have been they are in the knowledge of the defendant.  Whatever the manual, if there was one, whatever it said was in the knowledge of the defendant.

McHUGH J:   Yes, but the onus is on you to prove what was the practicable alternative which would have eliminated the risk of injury, and that seems to have been forgotten at the Bar these days.  We saw it in Swain’s Case, and here is another case.  I mean, it would have been the simplest thing in the world to have tendered the manual or obtain the manual, or to have called an expert if necessary.  So you have to rely on the position where you have to say she was given no instructions, there must be instructions as to how to do this and from what we now know, you do it this way.  I mean, after all, she did it afterwards, did she not?

MR NEIL:   Yes.

McHUGH J:   But she was never expressly asked how you went about doing it, was she?

MR NEIL:   She was asked in re-examination what she had done later, and she said how she had done it.

McHUGH J:   That may be enough for your purposes.  Where is that?

MR NEIL:   I will just have that turned up, your Honour.  To put it into context, could I just take your Honours to something the judge said in his ruling at page 610 in the second book.

McHUGH J:   You can prove what reasonably practicable alternatives were open to the defendant by showing what happened afterwards.

MR NEIL:   Yes.  At the risk, however ‑ ‑ ‑

McHUGH J:   What the defendant did or, in your case, what your client did as to how it was done.

MR NEIL:   At the risk of bringing some difficulties on my own head from what your Honour said, I also want to put this is not a case of a reasonable practical alternative, this is a case of a system that was otherwise safe, and if she had been told how to do it ‑ ‑ ‑

McHUGH J:   No, but you say there was a risk of injury to her because there were no instructions given to her.  Now that does not prove negligence, the fact that she was not given any instructions.  At the minimum you have to show that there were instructions that could have been given to her and that would, more probably than not, or at least a jury might think so, have eliminated the risk of injury.

GLEESON CJ:   What did she do different?  On the times when she did it successfully, what did she do different from what she did on the time when she did it unsuccessfully?

MR NEIL:   She must have held it properly, tightly; you have to hold the two cylinders, one with one hand, one with the other hand, you have to thread one end and you have to make sure that the grooves and the lugs are held together, and you do not let it go loose before you have the inner cylinder tied into position, threaded into position.  Otherwise, it will come out of the lugs or, alternately, it had not got into the lugs, because at one stage that was put as a possibility in cross-examination of her, that she had either not got it into the lugs and ought to have known that, or she let it slip somehow.  Now what she did when she did it successfully was get the groove around the lugs and hold it long enough to tie the inner cylinder into the threads.

McHUGH J:   Where is the evidence to that effect?

MR NEIL:   I think 146 I will take your Honours to.

GUMMOW J:   Yes.

MR NEIL:   Because at 145 Mr Goodridge was given the opportunity to ask some further questions, perhaps to deal with this type of matter.  There was some objection at 145 but his Honour allowed it, and Mr Goodridge commenced at the end of 145 about line 45 and, in our submission, as I understand, asking her how you would get it right:

did the lugs have anything to do with what you were trying to do with this piece at the time of the accident?
A.       They’re placed on the ring at the bottom.

Q.       Okay, now, you pointed when you answered that.
A.       Yes.

Q.       You say they are placed on the ring at the bottom and you pointed to the very bottom of photograph 2; is that correct?
A.       Yes, this circular bit at the bottom.

Q.       There appears to be two groups between two ledges on the outer part there?
A.       Yes.

Q.       So you were trying to place, or you were placing the outer piece.
A.       Yes.

Q.       With the lugs in the groove; is that correct?
A.       Yes.

Q.       Okay.  What at the same time did you have to do with the inner piece?
A.       You have to balance the whole lot to put that on the lugs before you screw it in to the top.

Q.       Okay.  Now, the top of the inner piece?
A.       Yes.

Q.       And where you are screwing it on, there is a gap between it.
A.       Yes.

Q.       How do you get them together?  That’s the inner piece to the screw, the screw to the thread?
A.       They are already together and you pull it up.

Q.       You pull it up.  So, you keep hold of the outer piece, do you?
A.       Yes.

Q.       Balancing it in the lugs?
A.       Yes.

So you have to balance it in the lugs.

Q.       And with the other hands, you pull up the inner piece and you do what then?
A.       You screw it into the top piece.

Q.       Okay, is there anything to keep the inner piece up in your hand while you are doing that screwing and holding the other piece?
A.       No.

Q.       So you are doing three things.  You are screwing the inner piece, you are holding the inner piece up and you are holding the outer piece in position all at the same time is that correct?
A.       Yes.

Now, there was some other reference to photographs and I think I can find your Honours some other portions dealing with that ‑ ‑ ‑

McHUGH J:   But is that evidence a reference to what she was doing at the same time or is that how you should do it or how she did it subsequently?

MR NEIL:   I would submit it is evidence of how you should do it and how you do it subsequently but what she was trying to do at the time.  If I take your Honours back to page 100, at page 100 she was asked some questions in cross-examination – perhaps I will take your Honours back to page 98.  I think I have read part of that already:

Q.       So you had your right hand round the outer tube?
A.       Yes.

Q.       Is that right?
A.       To hold it up, yes.

Q.       To hold it up?
A.       Yes.

Q.       And your right hand there and you were screwing with your left.  Are you sure about that?
A.       Yes.

Q.       You’ve told us that something fell down?
A.       Yes.

Q.       What fell down?

And it was the outer tube.  At page 100, about line 15:

Q.       So you agree with me that if it slipped or whatever happened to it, you had to have let it go with your right hand, didn’t you?
A.       I must have.

Q.       You must have?
A.       Yes.

In our submission, it would have been a simple thing to tell her to keep it held in position before letting it go.

Q.       And do you remember whether you had the thread on the left hand – with your left hand actually taking up on the piece of pipe?
A.       I can’t recall.

Q.       Do you remember whether you had the lugs in the groove?
A.       I’m pretty sure I did.

Q.       You had the lugs in the groove.  You were holding it with your right hand and somehow or other ‑ ‑ ‑
A.       It just slipped.

Q.       It dropped down?
A.       Yes.

Q.       After you hurt your finger on this particular piece of machinery, did you ever work on it again, that is disassembling or assembling it?
A.       Yes.

Q.       Did you have any difficulties disassembling it or assembling it?
A.       No, because I knew where – what had happened.

Q.       You knew where you had gone wrong?
A.       What had happened.

Q.       Did anybody teach you any more?
A.       How to assemble it?

Q.       Yes?
A.       No.  I stood there and watched Sean but, no, yeah.

Q.       See, I want to suggest to you that on this day it was just simply a situation where you just didn’t hold it tight enough.  That’s really what happened, isn’t it?
A.       I thought I was doing the right way of setting it up.

Our submission is she was not holding the grooves and lug together tight enough.  You had to hold it together or balance it while you screwed the inner cylinder in which stabilised the position.  The later evidence that I have read a while ago is indicative of how you ought to have done it, namely holding it tight enough.  The defendants know what the position is because it was suggested to her she did not hold it tight enough.  We say that was the error and she should have been told to hold it tight enough and, therefore, there is evidence of what she ought to have been told to do; what she was not told to do; and when she realised how to do it properly, as she said at the end of page 100, she was able to do it properly. 

Now, the respondent’s argument is it is all very common sense.  I come back to the point it may be common sense when you know how.  If you do not have the knowledge, you are into a ‑ ‑ ‑

GUMMOW J:   What was the significance of these other two instances of injury or mishap?

MR NEIL:   Your Honour, I think none, as it turned out.  There may have been some cross-examination and some attempt at credit initially but – it may have gone to the medical issue but of no materiality to liability.  At appeal book 610 in dealing with the application for a direction of a verdict, about line 25, his Honour’s judgment says:

It was the plaintiff’s evidence, and, to the extent that she was unable to contradict the plaintiff, also that of Mrs Brown who was the defendant’s production manager, that the plaintiff had not been instructed in the use of this particular machine, and more importantly, had not been instructed on its reassembly.

Mrs Brown’s evidence, I should be clear, was that she had not taken any part in any such instruction and indeed she knew very little herself about the way in which the equipment was assembled.  She had delegated that responsibility to the team leader, a Mr Sean Spackman who, according to the plaintiff, had been the person responsible for instructing the plaintiff to assemble the machine on the day in question.

According to the plaintiff, when she was asked by Mr Spackman to assemble the equipment, she said that she did not know how to do it and his response was “Just give it a go”.  There is of course a distinction between the evidence of absence of instruction and the failure, which is the flaw in the plaintiff’s case that Mr Nock has identified, to properly identify by way of appropriate evidence what instructions might have been given and been effective in averting the accident.

Could I just say on “effectiveness”, your Honour, the jury is perfectly entitled to infer that because this had been done by other people there would be no trouble, because it was done by the plaintiff when she knew how to do it with no trouble, that the correct instructions would have been effective.

The question of whether this matter should go to the jury or not in the end comes down to what evidence is available to the jury and what the jury might properly do with that evidence.  The jury do have, as I have already indicated, a very adequate picture in the literal sense of this piece of equipment.  From the photographic evidence, they should be able to discern exactly what the equipment looked like and indeed can infer without any particular difficulty and with the aid of the plaintiff’s evidence, how the two principal parts of this assembly fitted together in a way which allows them to construct an account of the process of assembly along the lines that I indicated earlier in the judgment.

At page 612, line 25:

What the jury are entitled also to infer and this, in my view, does not take them into the realm of conjecture in any sense of that term, is that if the plaintiff’s evidence is accepted, and I am entitled to assume that for the purpose of this application, certainly insofar as it does not conflict with any evidence from the defendant, that this machinery had been in place for a number of years, that it had been used extensively by other employees, and indeed Mr Spackman in particular was very familiar with the way in which this machinery worked and with its process of assembly and disassembly.

In other words, the defendant certainly was in a position to know at least as much about this equipment as the jury know.  And they, therefore, have at their disposal a level of knowledge which enables them to make a judgment about what the defendant might have properly done by way of instructions given the sharp edge of the bottom of the outer cylinder and the fact that the assembly did involve the use of both hands at the same time, one holding one part, one holding the other.

McHUGH J:   It is the next sentence that is really the key to your case, is it not?

MR NEIL:  

There is a basis on which it might reasonably be inferred that a person, either inexperienced or inadequately instructed in the process of assembly, might lose hold of one or other of the parts and that the consequence of that was a foreseeable risk that the hand of the person attempting to assembly the equipment, might be caught in the very place it was caught.

Exactly, your Honour.

GUMMOW J:   Now, is there any evidence as to the susceptibility of this machine to break down from time to time, evidence that it was Mr Spackman who usually fixed it up?

MR NEIL:   There was evidence of that second point, your Honour.  I do not think there is evidence that it habitually broke down.

CALLINAN J:   It had to be regularly reassembled because it was washed, was it not, after it made a batch?

MR NEIL:   Yes.

CALLINAN J:   In fact, the cylinders were slippery, were they not, because they were still wet?

MR NEIL:   They were, your Honour.  They had to be obtained out of a bucket of water.

CALLINAN J:   But I had the impression this was a daily activity almost.

MR NEIL:   Your Honour’s impression is correct.  Mr Spackman either did it or trained people did it, but this plaintiff was an ordinary bakery hand.

CALLINAN J:   I think she had only been there five or six weeks, is that right?

MR NEIL:   Yes, she was not a technician, she was not a re‑assembler.

CALLINAN J:   No.

MR NEIL:   She was not a trades skilled technician or plumber.  It would seem to be purely for the convenience of Mr Spackman.  He did not have the time to go and show her what to do first up.  We would submit that there is more than enough evidence for the jury to conclude precisely along the lines that they must have concluded, namely, that you had to get those lugs in the groove and keep it there while you did the other part of the job.  It was difficult.  You had to balance them together.  If she had have been told this it would have worked like it worked every other time, and that therefore there was negligence.

In, for example, Hamilton v Nuroof the Court said even if you do not know the exact particular reason for something going wrong, a jury can reasonably infer that there must have been something going wrong.  We would submit the jury probably got it exactly right here, that they were entitled to say that something has gone wrong, and they are entitled, in our submission, when looking at the evidence, to take into account the fact that there was no evidence called by the defendant at all on the issue.

GUMMOW J:   So the jury never heard from Mr Spackman?

MR NEIL:    No, your Honour, nor from any expert, nor from any person in authority other than Mrs Brown who said Spackman was wrong in what he did.

GLEESON CJ:   Was one way your case was put that while this might not have been rocket science, there was a knack to it, and at least to demonstrate to somebody how you do it would indicate to them what the knack was?

MR NEIL:    Exactly, your Honour.  It takes me back to the cadets, assembling or dissembling the Bren gun:  piston, barrel, butt, body, bipod.  Until you know that you are all thumbs.  Once you know how to do it you can do it.  Back again, bipod, body, butt, barrel, piston.  There is a knack.  If you do not have the knack, you get it wrong and you injure yourself, or you are injured by the employer putting you into that situation.

CALLINAN J:   Mr Neil, looking at the pleadings at page 29, the allegation in 9(i), implicit in it was that she was given instructions.  Now, obviously the defendant failed on that because you tell me there was no attempt to contradict her evidence-in-chief about instructions.  So there is a joinder of issue really on the question, not whether instructions were necessary, but that in fact she had been given them, and the defendant obviously failed on that issue.

MR NEIL:    Indeed, your Honour.  They went further.  They ended up having to say, “We agree we didn’t give instructions” and try and turn it to their advantage by saying it is all commonsense.

CALLINAN J:   And also failed to wear gloves in accordance with instructions.

MR NEIL:    Yes, your Honour.

CALLINAN J:   So can we use the fact that those were the issues joined and there was an obvious failure on them?  Can we take it that it is implicit in those allegations, or that they provide a basis for saying that instructions were necessary as were gloves and the use of gloves in accordance with instructions?

MR NEIL:    I would submit, yes, your Honour, and add the two points that were also added in about supervision, none, and a manual, none. 

CALLINAN J:   But was there an amendment, was there, to plead those two last matters?

MR NEIL:    I cannot say if it is necessarily an amendment, but the two matters were open.

CALLINAN J:   Your junior seems to think there was an amendment.

MR NEIL:    Well, certainly the two matters were open and run, and I will just check on amendments.

CALLINAN J:   The only way we really know what the defendant’s case was is from the pleadings and from the cross-examination.  You have really given us the relevant cross-examination.

MR NEIL:    Yes, your Honour.  I am sorry, page 3, line 20:

Failed to provide the Plaintiff with the manufacturer’s instructions . . . 

Failed to provide the Plaintiff protective gloves –

HEYDON J:   And 6.4.

MR NEIL:    And 6.4, “adequate instruction”, and 6.5:

Failed to properly supervise ‑ ‑ ‑

CALLINAN J:   I have lost you, I am sorry.  Which page is that?

MR NEIL:    I am sorry, page 3 of appeal book 1, your Honour, is the ultimate particulars of breach as finally formulated.

CALLINAN J:   Yes.

MR NEIL:   

6.4      Failed to provide adequate instructions . . . in the reassembling . . . 

6.5      Failed to properly supervise . . . 

6.6      Failed to properly clean and dry the parts . . . 

6.7      Failed to heed the warnings –

and including the plaintiff complained, “I don’t know how to do it”.

GUMMOW J:   Well, it was not her job.

CALLINAN J:   Well, I was more interested in what the joinder of issue was.  Well, that appears from page 29 really.

MR NEIL:    Page 29 and then 3, yes.

HEYDON J:   Page 28, paragraph 2, denies paragraph 6.

GUMMOW J:   Anyhow, her job was to set up the trays, to roll the dough, and any extras that was around on that line, on the doughnut line.

MR NEIL:   Yes, your Honour.  She was not a mechanic.

GUMMOW J:   From time to time, in walking past, she had seen Shaun setting up the machine and sometimes Theresa, who had been there for a long time, then one day she was asked to do it herself.

MR NEIL:   Yes.  We submit that she was not given the necessary knowledge and the argument that it is some sort of common sense is quite fallacious.  It may be common sense when you know how, but not when you do not know how. 

Your Honours, we have given references to various authorities which I do not wish to take the Court through in great detail, the Court will be familiar with them, but Hamilton v Nuroof on our list is a case where the Court said, amongst other things, that you do not have to show necessarily the exact immediate cause.  It was a simple case concerning an unmechanised operation, as the Court said in Hamilton v Nuroof, but you can still succeed.  We would submit the degree of injury likely to result was moderate to serious, the degree of risk of an accident was real and not fanciful or inconsiderable, and there was no degree of risk to any person in instructing the plaintiff properly or in taking precautionary measures.  They are some of the principles in Hamilton. 

We submit the jury was entitled to consider whether if correct instructions were given the plaintiff would have followed them, and here there is no doubt she would, we submit.  The jury can be presumed to have determined this question in favour to the plaintiff because of the general principles of jury verdicts.  They are also entitled to infer that if correct instructions had been given they would have been effective, as I have put before. 

In some parts of the submissions of the respondent, in particular page 2, paragraph 8, we would submit that the statement, “She was performing one task, that of screwing the outer cylinder to the inner cylinder”, is not strictly correct.  In any event, it seeks to minimise the complexity of the task.  It was not rocket science but there was certainly a knack to it.  At page 5, paragraph 20, it is submitted:

the jury did not have the same knowledge of the machine as the respondent.

I submit that is completely, with respect, incorrect.  The jury did have the same knowledge as the respondent by the end of the case.  The judge correctly identified that and it went to the jury, with adequate knowledge, to deal with the case which they, in our submission, did.  In any event, the defendant must have at least had the knowledge that the jury had but kept it to themselves. 

McHUGH J:   I suppose you would seek to apply to this what Sir Owen Dixon and Justice Kitto said at 25 to 26 in Nuroof, that it is the sort of thing that you would think might well arouse some degree of apprehension in any spectator of the operation to say nothing of an experienced employer.

MR NEIL:   Indeed, your Honour, and the other short portions that I referred to at pages 25 to 26, a simple case, but the respondent would have it so simple that it is all the plaintiff’s fault.  We would rely on that judgment and Justice Fullagar commencing at page 32 said “I agree entirely with” the judgment of the Chief Justice and Justice Kitto, including the remarks about not necessarily having to pin down the exact precise cause.  We say it was done here, but there is enough room for the jury to take the view that whatever instructions ought to have been given, were not given and the defendant ought to have given them; the defendant knows of them and should have given them.

CALLINAN J:   Mr Neil, why did the trial take so long?

MR NEIL:   Mostly the regional pain syndrome.  There was an issue about whether the accident was causative of the eventual sea of disabilities, your Honour.  One of the defendant’s experts said there were about nine steps you had to prove that, and there was a long series of arguments between the experts on that, apparently.

GLEESON CJ:   Is that the relevance of the report about the later incident?

MR NEIL:   It may well be, your Honour.  Could I just submit that, to the extent that the Court of Appeal may have been criticising the plaintiff for the length of the trial, we would submit the criticisms were quite unfounded, if that is how one would read it.  But unless there are any special questions, your Honours, those are the submissions of the appellant.

GLEESON CJ:   Thank you, Mr Neil.  Yes, Mr Walker.

MR NEIL:   Pardon me, your Honour.  Your Honour, the employee claim page at 594 that your Honour the Chief Justice raised was the subject of cross-examination on medical matters.

GLEESON CJ:   It was introduced into evidence at page 74 of the appeal book.

MR NEIL:   It went in on the basis of whether or not there was a new injury.

GLEESON CJ:   What were the damages that were awarded by the jury?

McHUGH J:   It was 470,000‑odd thousand.

MR NEIL:   Yes, 400 and something, I will just get it for your Honour, about – I will get your Honour the figure.  There is clearly no challenge, and in light of the medical evidence which was accepted ‑ ‑ ‑

McHUGH J:   It was 471,201.

MR NEIL:   Yes, a warranted verdict in the light of the evidence the jury accepted.

GLEESON CJ:   Thank you, Mr Neil.  Yes, Mr Walker.

MR WALKER:   May I start with the question of the pleadings, because the case as to its issues did not stop at the pleadings in a familiar pattern.  The pleadings are, of course, relevantly found at page 3.  Justice Heydon has already drawn to attention 6.4.  There were all the other particulars to which Justice Callinan has drawn attention, and all or all but one in any material way, were covered in the evidence in‑chief to which Justice Callinan has drawn attention in volume 1 of the appeal book at 38, including, for example, the gloves.

However, with respect say to the gloves, there was no evidence as to the kind of gloves which would have been appropriate.  One can rarely imagine from the Bar table that steel‑capped gloves, like steel‑capped boots, would scarcely be adapted to the screwing exercised involved.

CALLINAN J:   Why did you plead that there was contributory negligence by failing to use the gloves as instructed?

MR WALKER:   Your Honour, there is cross-examination about gloves ‑ ‑ ‑

CALLINAN J:   But there must have been some common view about the appropriateness.

MR WALKER:   No, there was not.

CALLINAN J:   Well, why plead it?

MR WALKER:   No, there was not.  There is no adequate answer at the end of the many days as to why that contributory negligence case about gloves was mounted.  It failed.  The only gloves in question were cotton gloves and latex gloves, which were obviously for the purpose of hygiene in the case of the latex gloves and for some heat protection in the case of the cotton gloves.  There was no suggestion from the plaintiff or the defendant, apart from a stray suggestion emanating from our side, that wearing those gloves would have made a difference to the outcome of this sharp object falling on the finger.  My point is about gloves that there was no evidence either from the plaintiff about the kind of gloves which would have been appropriate and that issue is effectively abandoned and I will make that good by the following references. 

The same is true in relation to manufacturer’s instruction booklet.  Your Honours have already seized the point, with respect.  There was nothing in the evidence to show what was in the manufacturer’s instruction booklet to say, for example, whether it would have said anything that the plaintiff did not already know. 

Things moved on, however, from pages 3 and 38 in the appeal book.  By the time the matter had reached the application for a directed verdict, the understanding of the judge, not dissented from in any way by the plaintiff as to the nature of the particularised negligence – and that is what we are talking about – particularised negligence, can be first of all picked up at page 598 in volume 2 where his Honour describes what he calls on the previous page “The relevant particulars” and at about lines 4 and 5 talks about “more specifically paragraphs 6.4, 6.5 and 6.7” and then at line 20 returns to 6.4 “dealt with in a more specific manner”; 6.7 is said to be:

complementary . . . not in any meaningful sense stand on its own.

Then that is further refined at 603, lines 12 and following:

As I indicated earlier in referring explicitly to paragraphs 6.4 in particular and to some extent 6.5, the gist of the plaintiff’s case against the defendant is the failure on the defendant’s part to adequately instruct and/or supervise the plaintiff in the process of assembly.

So that is 6.4, 6.5, instruction, supervision and, if I could then take your Honours to the summing‑up culmination there.  It is not the subject of any objection - 637, line 12 and following.  This is the summing‑up to the jury:

the plaintiff is required to identify the source of the defendant’s responsibility towards her.  The process of pleading . . . It is within that framework that the rest of the case is then conducted and the matter finally comes to trial . . . 

Using the plaintiff’s statement of claim just for this initial purpose, can I attempt to recapitulate the question . . . “Did the plaintiff suffer an injury . . . as a result of a breach of duty . . . on the part of the defendant, in failing to provide adequate instruction to the plaintiff in the reassembly of a doughnut machine?”

Did the plaintiff suffer an injury as a result of a breach of duty on the part of the defendant in failing to provide adequate instruction to the plaintiff in the reassembly of the doughnut machine?

That understanding of the case persisted in the Court of Appeal where, in the way the case was argued after an attempt to narrow the issues in that court, one finds at page 801 in paragraph 8 about how:

The matter was ultimately put to the jury –

Your Honours see that supervision continues to have a presence, but your Honours have not heard today, nor have you read in the written submissions, nor is there anything in the evidence, about what is meant by supervision over and above instruction – that is, better instruction than the clearly uninformative, “Just have a go” from Shaun Spackman.

So in that way it can be seen that in relation to our success in the Court of Appeal, which is that which is impugned in this Court, whether there should have been a directed verdict – that is, this is not simply an appeal against a jury decision – whether there should have been a directed verdict, by the time that application came to be made, the case was one which had come down to instructions, the word “supervision”, given the evidence and the argument not adding anything to that question of instruction. 

As has been observed by a number of your Honours during my friend’s address, of course it is plain, and thus no challenge to the plaintiff in her evidence by way of cross‑examination on behalf of my client, it is plain there was no instruction.  That left of course the important question as to whether it was negligent not to have instructed and as to whether any such negligence had caused the mishap to occur.

Now, in this Court for the first time in these proceedings we have the formulation I think in three – perhaps more but I think basically three different ways of what the instruction should have been.  This was not formulated in the pleading in the particulars; it was not formulated in answer to the application for a directed verdict.  There was no application for an amendment to add particulars to deal with the evident thrust of the cross‑examination, to which much of which your Honours have already been taken to.

Now, the three ways that we have recorded that my friend has ventured this morning are as follows:  make sure you get the lugs into the groove; second, make sure you hold it tight until it is screwed in; third, keep it held – hold it, presumably until it is attached, before letting it go. 

Now, the first one can be dealt with relatively very straightforwardly on the evidence.  As the Chief Justice has pointed out, however apparently banal or easy a task of this kind, which you can describe of course as manipulative or mechanical, but they are rather grand words for something relatively straightforward, nonetheless, it is common experience of a kind the jury would have, and Benches have, it is common experience that there can be a knack.  Having been taught it or even sometimes have it simply demonstrated just once will suffice to make the world of difference between the frustration or embarrassment of a first failure and then an indefinite period of more or less universal success, unless you make a mistake yourself.

There was no evidence in this case from the plaintiff that there was any such knack involved of any kind – not a knack in relation to what part should be in which hand; not a knack about whether left-handers or right‑handers had something to be aware of specifically; not a knack as to where fingers ought to be or ought not to be; not a knack as to how you should cock your wrists in order to be ready for the first screw onto the threads; and, in particular, not a knack about lugs into the groove.

We can make that good, as I say, from the evidence.  If I could take your Honours to passages, some of which you have already seen, I fear, in volume 1 of the appeal book, page 100 – this is to make good two factual propositions and one is that the plaintiff did not, in fact, prove on the balance of probabilities that the lugs had missed the groove.  There has been no expert called by the plaintiff to show that that must, as a matter of the interplay of the mechanical configuration of the apparatus and gravity, be the only explanation for the accident.  That has simply not been shown at all. 

McHUGH J:   But she does not have to, does she?

MR WALKER:   She has to show that what happened ‑ ‑ ‑

McHUGH J:   What Hamilton v Nuroof demonstrated is that if you have an operation where there is a risk of injury and the plaintiff gets injured and it seems reasonable that in some way the plaintiff’s injury is the result of that operation, that is sufficient on the issue of causation which is the issue you seem to be addressing at the moment.

MR WALKER:   No, not at all, I am not addressing that at all.  I am addressing only negligence, that is the only point I am addressing, but the evidence I am taking you to is obviously necessary in order to understand the way in which the plaintiff put the case and what her evidence reveals because ‑ ‑ ‑

McHUGH J:   But it is not a question of the way the plaintiff put the case, it is a question whether there was any evidence of negligence to go to the jury.

MR WALKER:   Yes, what has to go to the jury, however, is a case that is fairly to be put to the jury, that is, open on the pleadings and particulars, not a case about which the defendant knows nothing and nobody will know anything because the jury does not reveal what they come up with.

McHUGH J:   As Mummery v Irvings demonstrated, particulars do not circumscribe the cause of action in negligence.

MR WALKER:   But, your Honour, what does circumscribe the way in which an application for a directed verdict will go will be finding out whether there is a case of the kind mounted by the plaintiff.  Here, that was very plain.  It was a lack of instruction and the question was was there any evidence fit to support that, that is, that could go to the jury.

I am going to come back to that general matter in a moment but I want to, first of all, make clear that the most specific, the most, at first sight, fruitful source of evidence which could make good this notion that the jury had before them, properly, a case of an unconveyed knack or trick, which is the explanation of the injury demonstrating the negligence and the necessary causation, the evidence that I am about to go to shows that it was the way the plaintiff gave her own evidence in support of her own case that shows there is no such reliance in her evidence about lugs.  I started the proposition that, in fact, she did not even prove that it was a failure to get the lugs into the groove that caused the actual fall of the apparatus.

The second point is much more important, namely, that she knew before she attempted it that that is what she had to do, and then there is complete silence in the evidence about whether there was any particular difficulty about getting these lugs into this groove.

McHUGH J:   Yes, but surely it was open to the jury to hold that there were these three steps required if the matter was to be done without exposing a worker to injury.

MR WALKER:   But, your Honour, that was obvious and they were easy steps.  No one has ever said they are difficult steps, nobody has ever said that.

McHUGH J:   But if there is then they are the instructions, on one view, reasonable care required the plaintiff to be instructed that that was the way you did it.

MR WALKER:   No, your Honour, for the following reasons, if I can just go to the evidence.  At page 100, about line 29:

Q.       Do you remember whether you had the lugs in the groove?
A.       I’m pretty sure I did.

So her case is rather success in something and the evidence I am about to come to shows success in something she was intending and knew she had to do.  So she did not have to be told about that.  Then the next one is page 101, lines 13 and following:

You think you had the lugs in position.  That was all correct, was it not?
A.       Yes.

So again she is claiming, the beginning of the cross-examination, she is claiming without any resistance about any difficulty, volunteering in effect.  The next one is 107, lines 47 to 55, and this one could not be plainer:

Q.       And there’s no question you knew that the two lugs had to go in the groove?
A.       Yes.

And then she is asked by the cross-examiner to consider, as it were, the logic of the mechanics in conjunction with the law of gravity.  She says:

A.       Well, I suppose so, yes.

GUMMOW J:   I do not think this witness ponders the works of Isaac Newton, does she ‑ ‑ ‑

MR WALKER:   No, she does not.

GUMMOW J:    ‑ ‑ ‑ when she attends as a bakery assistant in a doughnut factory.

MR WALKER:   But we all live by them, your Honour, and it is understood that if you let go something heavy ‑ ‑ ‑

GUMMOW J:   When she is suddenly called upon, never having previously been called upon, to handle this equipment which, if you keep talking about common sense, is intrinsically dangerous because it has a sharp edge and weighs a kilo.

MR WALKER:   Yes, but so does a kitchen knife, so would a glass bottle full of something if it broke, so would the edge of a tin can full of flour.

McHUGH J:   Yes, but this has a guillotine effect.

MR WALKER:   Your Honour, so does a knife, whether point or edge.  We are not talking about some steam hammer here, your Honour.  We are talking about something which she had seen done before.  She is the one who volunteers the word “commonsense”.  That is said against us this morning to be a fallacy.  Well, if it is a fallacy it is one that she introduced into the testimony in this case.  We have given the reference to that in our written submissions.  She said it was a matter of common sense which, in our submission, is a perfect ‑ ‑ ‑

GUMMOW J:   Where is that passage?

HEYDON J:   Page 103, line 41.

MR WALKER:   And it is used several times.  At line 42 it is found at page 103.

Then there is the passage upon which my learned friend relies, understandably, at 613, lines 14 to 26, and that simply comes down to “might lose hold”.  When we are talking about a simple task involving common sense, for all we know actually successfully done up to four times in the immediate precursor to this accident, it is difficult to say that losing hold of something answers anything in the nature of a knack or trick which needed to be inculcated. 

Your Honours, in the summing‑up, if I could start at ‑ ‑ ‑

McHUGH J:   What does the summing‑up have to do with it?  I mean, if the judge summed up differently ‑ ‑ ‑

MR WALKER:   I accept that, your Honour.  It does not advance our position in relation to the application for a directed verdict.

McHUGH J:   If the judge summed up differently from the way he has discussed in the application for a verdict, then ‑ ‑ ‑

MR WALKER:   He did not.  He ‑ ‑ ‑

McHUGH J:   No, but if he did then it was up to you to object ‑ ‑ ‑

MR WALKER:   Quite so.  He summed up consistently with the way in which he had proceeded in dealing with the application.  I wish to go to a couple of pages only to make good our proposition that it is just as Sir Owen Dixon said in Neill, or what Chief Justice Barwick said in Maloney, that it is not proper, it is not possible to put to a jury, as it were, this inscrutable mysterious question.  One sees that at the foot of 643, having given them the encomium on their ordinary members of the community qualities, that is, the common experience, common sense, at the foot of 643, lines 49 and following:

Can you formulate instructions that on the evidence, you can say, should have been given to the plaintiff –

with respect, it is not a matter for the jury to formulate.  That is exactly what Mr Nock was pointing out in the earlier application.  It is not a matter for them to speculate about an instruction.  It is a matter for them to say negligent or not because this reasonable instruction was not given.  This has nothing to do with precision; this has to do with substance.

McHUGH J:   Yes, I know, but you should have objected to that.

MR WALKER:   No, your Honour, because that matter had been ruled against us in the application.  That would be canvassing ‑ ‑ ‑

McHUGH J:   I am talking about the rhetorical question.

MR WALKER:   That would be canvassing a ruling in a way that counsel does not have to do, with respect.

McHUGH J:   Why not?

MR WALKER:   There had been a ruling on the application that it could go to the jury in that fashion.

McHUGH J:   Well, at 643 the judge is asking the jury can they formulate an instruction, but at 613 he did formulate what the instruction was.

MR WALKER:   No, he did not, your Honour.  He has never said what the instruction should have been, except do not drop it.

McHUGH J:   It is pretty obvious they might lose hold unless they were instructed.

MR WALKER:   That means do not drop it, your Honour.

CALLINAN J:   Having regard to the sharp edges, the slipperiness of the cylinders, you have to be very, very careful to hold them tightly.  What is wrong with that instruction and why is it not an irresistible inference that that was the proper instruction?

MR WALKER:   The first answer to your Honour is that amounts to do not drop it, be careful.

CALLINAN J:   No, it does not.  Counsel for the respondent put explicitly that she did not hold onto it tightly enough.

MR WALKER:   Quite.  I accept that, your Honour. 

McHUGH J:   And your submissions are leaving out the industrial atmosphere here.  Here is a worker, a machine – I mean, she is not in the High Court of Australia.

MR WALKER:   She is actually, your Honour.

McHUGH J:   She is there on the factory floor.

MR WALKER:   Yes.

CALLINAN J:   As a novice in assembling the machine.

MR WALKER:   Your Honour, we have to start from that low point, I accept all of that, but can I ‑ ‑ ‑

McHUGH J:   The employer reads like something out of Dickens.

MR WALKER:   I was hoping it was Dickson, your Honour.

CALLINAN J:    I do not think there is any boot‑blacking around.  You need not worry about that.

McHUGH J:   Give it a go.

MR WALKER:   If I may simply bow my shoulders at Justice McHugh’s description, I do not have a literary response.  Can I try and answer Justice Callinan’s question?  One can posit instructions in places with sharp edges, points, heavy rims, hot water, heat sources for cooking – in other words, a commercial kitchen.

GUMMOW J:   Do not come back to knives and forks.

MR WALKER:   Not knives and forks, your Honour, no.  These are kitchen knives, much more dangerous.  One can posit an instruction in effect being what I will call generalised admonitions to care.  That is there are many, many sources of sharp edges in a commercial kitchen, just as there is presumably more than one way in which a heat source can cause injury, certainly more than one way in which fluids can cause slips.  So if one is positing such a workplace, you could have a general admonition to care.  That case has never been pleaded or argued against us at all.  If I had been reminded to be careful, either daily, weekly or whatever, I would have been. 

Now, we know there is a safety induction handbook, the contents of which are not important enough to the plaintiff’s case for them to have it to the forefront or anywhere in their present argument.  Presumably, amongst other things, bearing in mind the slogan I have recalled from it, it tries to raise in workers a general awareness that what they do has risks which ought to be minimised or averted by being careful.  In our submission, that would not have been, nor was it, treated by the judge as an appropriate resistance to the application for a directed verdict. 

His Honour understood the case was one of no instruction, a lack of instruction.  The instruction, in our submission, cannot sensibly, in relation to this particular machine, be thought to comprise a general admonition to carefulness.  There could be no suggestion retrospectively that the only thing that would have required a sign or a tap on the shoulder would have been this machine.  No evidence of that at all.  The plaintiff bears the onus there.  They have to show what would have been reasonable.  Secondly, in relation to hold tight, lest you drop it because it might hurt you if you drop it ‑ ‑ ‑

CALLINAN J:   Because it is sharp and slippery.

MR WALKER:   There is no evidence that the plaintiff was unaware that it was slippery or unaware that it was sharp.  There was copious opportunity for her to say, particularly by reason of what must have been a very startling and painful laceration just behind the nail of her finger, severing nerves, every opportunity in the evidence for her to say, “I had no idea I was dealing with a sharp blade”, in effect, but there is not a word of that, nor is there anything to say, “No sooner had I lifted this” ‑ ‑ ‑

McHUGH J:   There are a lot of deficiencies in the plaintiff’s case.  The learned judge referred to the things that could have been done.  Speaking for myself, having written a book about this subject 40 years ago about how to prove these cases, that is obviously not read much these days, but that is another question.

MR WALKER:   It is read on appeal, your Honour.

GLEESON CJ:   It might be due for a resurgence soon.

McHUGH J:   Yes, I have just been thinking that.  I might have something to do after November.

CALLINAN J:   Another edition.

MR WALKER:   Your Honour, there should be a code of ethics about touting a paperback edition from the Bench.

CALLINAN J:   Why?

MR WALKER:   No, your Honour, I was talking about a law book.  Your Honours, may I simply return to page 647.  In our submission, the passage that starts at about line 35, “Aided by the evidence” et cetera, invites speculation about an instruction of the kind which had never been tested by the evidence and because it has never been articulated, was not articulated, no one ever said the instruction should have been, “Don’t drop it”, there was never an opportunity for the defendant to say, “Now, Mrs Laybutt, you did know that once you had lifted this up that you had to hold it until it was attached to the machine or otherwise it would fall, did you not?”

It was clear from the evidence in any event that she did know that, just as she knew it was slippery and there is no evidence that she was surprised or disappointed by how hard it was to grasp this equipment in the way she had to, just as there is no evidence that it took her any time to work it out that she had to prowl around it and look at it and weigh it up and size it up before actually starting the task.  The best gauge of the ease of the task is that for all she knows, she had done it successfully before she dropped it this time. 

At the foot of page 648, line 45 to the top of 649, line 16 the jury has in fact put to them the defect in the plaintiff’s case that Mr Nock had earlier argued, unsuccessfully, on the application but never does one find anywhere else an identification of the evidence, any foundation upon which you are able to come to that kind of conclusion.  I put that carefully and precisely, never any identification of the evidence, because then we come to the critical passage my learned friend leaned on but which, in our submission, highlights the vice of what occurred and which should have been the cause of the application for directed verdict succeeding.  This is at 659.  I do not need to read the passage.  Your Honours will recall that it is the paragraph where, at line 25, the jury is admonished to listen very carefully to it and what is said at line 26 is:

what I would suggest to you is that there is evidence from which you might formulate in your own judgment a conclusion that . . . should have recognised that it needed to be the subject of an instruction and that if that instruction –

and we have no idea what that instruction is, nor is the jury told, nor were they told what this evidence was that the judge had so meaningfully told them did exist –

the injury would have been averted.

In our submission, that highlighted the error in the earlier decision on the application for directed verdict.  There is simply no evidence in relation to the plaintiff needing to be warned against dropping something; the plaintiff needing to be warned that it was wet.  For example, in volume 1 of the appeal book at page 41, line 12, she knew it was wet and in any event she never makes any complaint about it being wet or slippery or sharp and for those reasons, in our submission, and for the reasons that are contained in our written submissions, the judge erred by putting a case to the jury, erred because the only case that could be put to the jury was the mysterious kind of case denounced by Sir Owen Dixon at the beginning of the Neill Case to which I drew attention.  May it please, your Honours. 

GLEESON CJ:   Yes, Mr Neil.

MR NEIL:   Your Honours, as to the point my learned friend made that Mrs Brown should have been asked a further question, could I just refer your Honours to page 404.  Your Honours will recall at 412 she had said very definitely that what was said should not have been said, and she knew enough to know that.  But she, as appears from the bottom of page 403 and in particular, the top of page 404, had not been involved in the assembly or disassembly of the machine, and she had operated it on the doughnut line, that is, in the production stage occasionally, and that appears at 403 line 50.  In other words, that having been given in‑chief, there would be no point in such a question.

My learned friend puts something about the plaintiff’s evidence not being completely clear, he says, as to whether she had tried this process of assembly previously.  However, in my submission, that must be looked at in light of the whole of her evidence at page 37, line 28.  She said very clearly:

Q.       Before the day of the accident had you ever assembled or disassembled that machine?
A.       No.

Q.       Had you ever seen it being assembled or disassembled?
A.       Only on the way past.

At page 94, there was the part about what my learned friend called “spectating”, but at line 30 she said she had no instruction, she had only seen Sean a few times before when she had been going past.  At line 10 she said:

Q.       When you pulled them out, did you know, for instance, how many pieces were actually involved in the piece that you were going to assemble?
A.       Two pieces to each thing.

Page 63, commencing – I am sorry.  There is one other part where she said she had not assembled it previously, and I will find that for your Honours.  In our submission, the jury was entitled to take all that evidence into account on the question.  At page 63, dealing with the question of a book, there is a book shown to her called “General Safety and Induction Handbook” about “Safety is no accident at Balfours” and ‑ ‑ ‑

GUMMOW J:   That becomes exhibit H, does it not?

MR NEIL:   Yes, your Honour:

Q.       Could that document be returned . . . Did – I know it is going over it, but anyway, did your supervisor arrange for appropriate training for you before you tried to assemble this doughnut machine?
A.       No.

Q.       Did they provide you with – sorry, did they test and try to understand your ability to assemble this machine before just telling you to do it?
A.       No.

Q.       Did they provide you with any documentation that you were getting training, or you had got training, or you had been trained on this doughnut machine?
A.       No.

The book was tendered, but the only inference one can draw is it does not have anything more than some general homilies about safety.

At page 140 there is some evidence about the cylinder coming off, and at line 35 she said it was the outer cylinder that came off and she said –“whether it was screwed tightly or loosely” was in the question and she answered, “Outer cylinder.”  Those are questions from the trial judge that my learned friend Mr Walker referred to.  At page 142 Mr Goodridge made application to ask further questions, saying that he, Mr Goodridge, thought there was a basis of a presumption in the questions that was mistaken, meaning that the inner cylinder had nothing to do with the accident, which seemed to be incorporated in the judge’s questions.  He was asking the witness, for example, at 35 to set aside the question of whether or not the inner cylinder was tied loosely or not, bearing in mind she had said clearly at the top of 101, in answer to a question put affirmatively by counsel for the respondent, that she had not held it tight enough.  She said she thought she was doing it the right way.  That explains why the lengthy questions and answers at 146 came about, which I will not take your Honours through.

GLEESON CJ:   Mr Neil, a possible point of view may be that to say, fairly enough, that this is a case in which there were no instructions given, makes it sound as though it is a warning case and invites the response that Mr Walker gives for what was supposed to be the warning, “Be careful, don’t drop it”.  But what Mr Spackman said was, in effect, that an appropriate way to learn how to do this task was by trial and error.  That was the substance of what he said, and from one point of view, the question is whether it was negligent on the part of the employer to leave it to trial and error as an appropriate method of learning this new task.

MR NEIL:   Well, your Honour, that is so.  It was Mrs Brown who gave clear evidence that that approach is wrong, that Spackman should not have done that.  She said definitely not, and she did not know about that, the inference being she would not have approved of it if she had ever known he was going to do that.  The plaintiff has been, in effect, pitched into trial and error, which without the proper knowledge, has brought about the accident, and the jury was entitled to take those matters into account on the question that there ought to have been some instruction given.

As I think I put before, but I would repeat, the jury was entitled to, with the knowledge they had, work out what instruction ought to have been given.  I have put some things today; I might have fallen short.  There might have been something else the jury thought of.  It is a matter for the jury.  As his Honour put it to the jury, perhaps going a little further than my learned friend took the Court a short time ago, at page 659 in book 2, the part that I read earlier that the employer should have recognised it needed to be the subject of an instruction ‑ ‑ ‑

GUMMOW J:   That is not the point.  You are not really following the point.  The point is that she was given instruction.  The instruction was to try and work it out for herself by trial and error.  That was the instruction.

MR NEIL:   I would submit that in itself is negligent.

GUMMOW J:   That is the point.

MR NEIL:   And the jury is entitled to say to themselves, “Well, that’s what they have done wrong”, and find for the plaintiff.  Just going slightly further on the slightly different point, his Honour at the end of page 659 made it plain to the jury they must not guess, that they must go through a process.  He said the mere fact of no instruction is the starting point but not the end of it and, “You must go further and look through the evidence and carefully look at the matter”.  In my submission, they were then entitled to come to a conclusion on the point about instruction, whatever instruction ought to have been given ‑ ‑ ‑

GUMMOW J:   It was not an instruction; it was a direction she was given.

MR NEIL:   Direction, yes.  Your Honours, the reference we gave to Neill Case was simply really because it picks up the well-known passages in Hamilton v Nuroof, that common sense can be applied – because we quoted the part in Hamilton at page 24.  In that case it is said:

The exact immediate cause of the bucket overturning or of the bitumen spilling from it might, if it were precisely ascertained, have some bearing on the question whether the plaintiff was guilty of contributory negligence.  But so far as the primary cause affecting the liability of the defendant goes, it seems clear enough that the accident arose out of the method adopted –

and we would submit the method adopted here was trial and error.  The Court of Appeal in fact really recognised that at page 802 but came to the wrong conclusion where, in the judgment of Justice Meagher, his Honour said:

No doubt, there are cases in which it is clear that some industrial malfunction has occurred, although the plaintiff cannot state precisely what it was.  But the law has not, in any opinion, yet descended to the state where a judge may legitimately leave it to the jury to guess what the plaintiff’s case should be.

This was a case where, even if it were not precisely pointed to, it was not a case of the jury guessing.  There was material, and in our submission, much of my learned friend’s submissions have really been on what the jury ought to have done rather than the crucial issue, was there evidence from which a jury could find negligence?  In our submission, there was evidence.  If it please the Court.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter, and we will adjourn until 9.30 tomorrow morning in Sydney and 9.30 tomorrow morning in Canberra.

AT 12.28 PM THE MATTER WAS ADJOURNED