Marshall v Lockyer - [2006] WASCA 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MARSHALL -v- LOCKYER [2006] WASCA 58

CORAM: ROBERTS-SMITH JA
MCLURE JA
MURRAY AJA

HEARD: 7 NOVEMBER 2005

DELIVERED : 6 APRIL 2006

FILE NO/S: FUL 190 of 2004

BETWEEN: ROBERT JOHNSTON MARSHALL
Appellant
AND
WILLIAM JOHN CATCHLOVE LOCKYER
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :GROVES DCJ
Citation  :LOCKYER -v- MARSHALL [2004] WADC 243
File No  :CIV 146 of 2001

Catchwords:

Appeal - Personal injury - Causation - Assessment of damages - Workers' compensation - Delay between hearing and judgment - Adequacy of reasons

Appeal - Personal injury - Workrelated accident - Findings of fact - Whether open on the evidence - Failure of trial Judge to give adequate reasons - Nature of accident - Whether injuries caused otherwise - Findings based on credibility - Adequacy of reasons

Practice and procedure - Issue estoppel - Decision by review officer - Whether party estopped in District Court proceedings

Personal injury - Damages - Section 93F(1) Workers' Compensation and Rehabilitation Act 1981 (WA) - Construction - "a most extreme case" of severity of disability

Legislation:

Rules of the Supreme Court 1971, r 4(2)
Supreme Court (Court of Appeal) Rules 2005
Supreme Court Act 1935 (WA), O 63, r 10(2)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 93F

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J G Staude
Respondent: Mr D M Bruns

Solicitors:

Appellant: Mullins Handcock
Respondent: Separovic & Associates

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Limited (2004) 78 ALJR 907
Blair v Curran (1939) 62 CLR 464
Browne v Dunn (1893) 6 R 67
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
CSR Ltd v Della Maddalena (2006) 80 ALJR 458
Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531
Dell v Dalton (1991) 23 NSWLR 528
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Fox v Percy (2003) 214 CLR 118
Garrett v Nicholson (1999) 21 WAR 226
Girrawheen Tavern v Joseph [2003] WASCA 244
Guest v NRMA Insurance Ltd [2002] WADC 115
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Hendrie v Rusli (2000) 32 MVR 240
Kuligowski v Metrobus (2004) 220 CLR 363
Lloyd v Faraone [1989] WAR 154
Lockyer v Marshall (2004) 37 SR (WA) 90
Maddalena v CSR Ltd & Anor [2004] WASCA 231
Moran v McMahon (1985) 3 NSWLR 700
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Purkess v Crittenden (1965) 114 CLR 164
Reilly v WA (2005) 30 WAR 525
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Southgate v Waterford (1990) 21 NSWLR 427
Tame v State of New South Wales (2002) 211 CLR 317
Thatcher v Charles (1961) 104 CLR 57
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Warren v Coombes (1979) 142 CLR 531
Wylde v Arriaza (1997) 25 MVR 539
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries v Australian National Railways Commission (1993) 177 CLR 472
Geldenhuys v Soo, unreported; FCt SCt of WA; Library No 990147; 23 March 1999
Halge v George [2004] WASCA 141
Hart v Griffin Coal Mining Co Pty Ltd [2005] WASCA 130
Marsland v Andjelic (1993) 31 NSWLR 162
McNair v Press Offshore Ltd (1997) 17 WAR 191
Re Monger; Ex parte Industrial Progress Corporation Pty Ltd [2001] WASCA 281
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269

ROBERTS-SMITH JA: This sorry forensic saga developed out of a claim by the plaintiff of a work‑related injury in January 1995. The respondent (plaintiff) claimed he was driving a tractor pulling a water tanker along the race track at Ascot race course. He had to reach above and behind his head to pull a lever so as to open a tap allowing water to spray from a horizontal pipe at the back of the tanker. The tap jammed. He pulled on it again, using significant force. He says that resulted in injury to his arm and ultimately total loss of earning capacity.
The respondent filed a Form 22, Referral of a Question of Degree of Disability in the Conciliation & Review Directorate of Workcover (WA) ("Workcover"), on 10 December 1999. A writ was issued out of the District Court on 8 January 2001. A decision of a Workcover review officer was handed down on 6 February 2001. The appellant appealed. On 19 July 2001 the Compensation Magistrate upheld the appeal, quashed the decision and remitted the reference to the review officer for further consideration in accordance with the Magistrate's reasons. The review officer's decision on the rehearing was delivered on 20 September 2001.
In the meantime, the respondent's statement of claim was filed in the District Court on 7 February 2001. The proceedings there meandered on until the hearing before Groves DCJ, from 18 to 26 August 2003. There was then a delay of some 15 months before delivery of judgment on 3 December 2004 (Lockyer v Marshall (2004) 37 SR (WA) 90 ("judgment")). His Honour gave judgment for the respondent and held he was entitled to the maximum compensation allowed under s 93F of the Workers' Compensation and Rehabilitation Act 1981 (WA) ("the Act") for a disability of less than 30 per cent, namely $293,990. The maximum had previously been agreed by the parties at the conclusion of the hearing as being $284,615, but it is increased every year on 1 July, and so by the time the judgment was delivered, it had increased to the higher amount, that being accepted by the parties as correct at that time.
The appellant's notice of appeal - dated 22 December 2004 - was filed on 23 December 2004. The appeal was heard on 7 November 2005. The grounds run to some nine pages. They are prolix, extensive and confusing, and, as it transpired, do not necessarily clearly encapsulate the points sought to be argued by the appellant. They are:
"1.In relation to the circumstances of the accident:
(a)the learned trial judge should not have found that the respondent (plaintiff) injured his right elbow as a result of a single incident on 21 January 1995 by pulling with his right hand on the lever, this finding being against the evidence and wrong (Reasons [47]);
(b)alternatively, the learned trial judge failed to provide reasons for accepting that the accident occurred in the manner alleged by the respondent (plaintiff) in circumstances where the events described, namely the gate valve 'jamming' to the extent that the plaintiff was required to get off the tractor and manually release the gate valve, was not known to have occurred before, and the respondent's (plaintiff's) account lacked cogency, consistency and corroboration;
(c)the learned trial judge erred in attributing the 'jamming' of the gate valve to sediment which was capable of being removed by maintenance, there being no evidence to support that finding (Reasons [26]);
(d)the learned trial judge erred by implicitly rejecting, without due regard to its weight and cogency, the evidence of the defendant that the respondent (plaintiff) had been taught to use his left hand to operate the lever, and that to use the right hand would risk a loss of control of the tractor;
(e)the learned trial judge erred in accepting the respondent's (plaintiffs) evidence that the gate valve was disassembled for maintenance two to three times each summer (Reasons [38]), without considering the other evidence on point and without addressing adequately the appellant's (defendant's) evidence to the contrary;
(f)the learned trial judge erred in failing to address adequately the evidence of the appellant's (defendant's) sons as to their manner of operation of the tractor and the lever, which evidence was the subject of cross‑examination and comment as to weight;
(g)the learned trial judge erred in failing to address adequately the evidence of John Ransom that he had never had any difficulty with using the lever and would have used his left hand to operate it (Reasons [20]);
(h)the learned trial judge erred in failing to address adequately the expert evidence of Martin Simms as to the use with which the lever could be operated with the left hand and the degree of force required to open the gate valve (Reasons [21]);
(i)the learned trial judge erred in using the verbs 'to jam' and 'to stick' interchangeably, without discernable reason, in a manner which implicitly suggested that what the respondent (plaintiff) described as 'jamming' was the same event that other witnesses described as 'sticking'; and
(j)the learned trial judge erred in rejecting the appellant's (defendant's) evidence he was not aware of the problem with the sticking valve (Reasons [38]), when in fact the defendant had acknowledged that in his experience the valve could be 'a bit stiff, but no excessive force was needed' to release it (Reasons [19]), and failing to deal at all with the appellant's (defendant's) evidence that the valve did not require maintenance;
and in all the circumstances the findings of fact made by the learned trial judge in respect of the circumstances of the accident are either fundamentally mistaken, or result from an incomplete consideration of the evidence.
2.In relation to the issue of breach of duty:
(a)the learned trial judge erred in finding that the event complained of by the respondent (plaintiff), ie. that the gate valve jammed to the extent that he was unable to release it by use of the lever, was foreseeable (Reasons [35]), when on the evidence that event had never previously occurred, and was not likely to occur;
(b)the learned trial judge erred by finding that 'the combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, ... exposed the plaintiff to the risk of injury', such that there was 'a real likelihood that injury could be sustained', and that the injury was therefore foreseeable (Reasons [35]), when there was no evidence upon which such inferences could reasonably be drawn;
(c)the learned trial judge erred in accepting the respondent's (plaintiff's) evidence in relation to the valve sticking without adequately addressing the body of evidence to the contrary;
(d)the learned trial judge erred in failing to give adequate reasons for accepting the respondent's (plaintiff's) evidence that he complained to the appellant (defendant) from time to time that the valve was sticking (Reasons [35]), in the face of the appellant's (defendant's) evidence to the contrary;
(e)the learned trial judge failed to give adequate reasons for rejecting the evidence the appellant (defendant) on various other points where it conflicted with the evidence of the respondent (plaintiff);
(f)the learned trial judge erred in finding (Reasons [36]) that the sticking of the valve could have been avoided by regular scheduled maintenance when there was no evidence of how any maintenance program could minimise or avoid that phenomenon;
(g)the learned trial judge erred in finding, by implication (Reasons [37]), that the appellant (defendant) was negligent by failing to install a power assisted valve opening mechanism or a Bowden cable system in place of a simple lever which had been in operation for 20 years without incident, when there was evidence that such equipment was impractical, expensive and unnecessary;
(h)the learned trial judge's finding that:
'In all the circumstances I am satisfied that the appellant (defendant) was negligent in failing to maintain the equipment, that the system of work was not safe, and that he was in breach of his duty of care to the employee.' (Reasons [39])
was not reasonably open on the evidence and constituted an error.
3.In relation to the issue of causation the learned trial judge erred in finding that the respondent's (plaintiff's) right elbow condition, diagnosed as 'lateral epicondylitis' was caused by the single incident complained of, thereby implicitly, and without giving reasons, rejecting the appellant's (defendant's) evidence that the incident could not have occurred on 21 January 1995 and that the respondent (plaintiff) did not complain to him, of the alleged injury at or about that time.
4.The learned trial judge erred in finding that an injury to the right elbow was caused in the manner pleaded without adequately addressing the conflicting evidence in relation to this issue and paying due regard to the appellant's (defendant's) analysis of and comments upon such evidence.
5.Alternatively, and generally, the learned trial judge erred in reaching findings of fact based on his acceptance of the credibility of the respondent (plaintiff) by not analysing to the depth required in the circumstances his reasons for preferring the evidence of the respondent (plaintiff) and other witnesses on issues that were clearly significant.
6.In relation to the credibility of the respondent (plaintiff) the learned trial judge erred in finding the respondent's (plaintiff's) evidence to be credible on the basis of the respondent's (plaintiff's) demeanour in the witness box and his description by the witness Old as 'a Christian spiritual man of good character' (Reasons [102]), and failed to give due weight and regard to, or adequately address in his reasons, the appellant's (defendant's) case that:
(a)the respondent (plaintiff) exhibited significant discrepancies on examination by Mr Prosser, Dr Gee and Dr Bell;
(b)the respondent (plaintiff) gave evidence which was inconsistent with his pleaded case, his counsel's opening address, and his answers to interrogatories;
(c)the respondent (plaintiff) was observed on videotape performing activities which by his evidence the respondent (plaintiff) suggested he was unable to perform, inconsistencies between the respondent's (plaintiff's) evidence and the evidence of his sons, contradictory evidence by the appellant (defendant), Mrs Marshall and other defence witnesses;
and in all the circumstances the learned trial judge failed to give sufficient reasons to justify the determination of the main issues by reference simply to the acceptance by him of the respondent's (plaintiffs) evidence.
7.In relation to issue estoppel:
(a)the learned trial judge erred in concluding that the findings by the review officer in the Conciliation and Review Directorate as to the causation of right shoulder disability and psychiatric illness were final and binding (Reasons [67]) in that:
(i)the decision of the review officer as to a degree of disability for the purposes of Section 93D of the Workers Compensation and Rehabilitation Act 1981 was not a final decision determining the rights of the parties;
(ii)the review officer's decision merely afforded a right to contend for damages at common law;
(iii)the issues before the review officer were not identical to those before the learned trial judge;
(b)in the circumstances it was not open for the learned trial judge to:
(i)consider himself bound by the findings of the review officer; or
(ii)adopt the findings and reasons of the review officer without giving due consideration to both sets of evidence adduced at trial as to the nature and extent of the plaintiff's right elbow injury, the causal nexus, if any, between that injury and the respondent's (plaintiff's) right shoulder, right hand and psychiatric symptoms, and the nature and extent of any incapacity for work caused by the respondent's (plaintiff's) injury;
(c)the additional findings of the learned trial judge in respect of injury and disability (Reasons [116]) did not address significant conflicts in the evidence regarding:
(i)the causation of the right shoulder condition;
(ii)the degree of disability of the right upper limb; and
(iii)the question whether the depressive symptoms experienced by the respondent (plaintiff) constituted clinical depression as opposed to dysthymia;
all of which were factually and legally complex issues in respect of which reasons and analysis were advanced by the appellant (defendant).
8.In relation to the issue of pre‑existing degeneration:
(a)the learned trial judge erred in fact and law by finding that the appellant (defendant) did not discharge the evidential onus of establishing the contribution of pre‑existing degenerative changes to the respondent's (plaintiff's) disability (Reasons [115]) and should have found that:
(i)there was clear and unequivocal medical evidence to the effect that the respondent's (plaintiff's) right shoulder problems were caused by a degenerative condition rather than by the accident complained of;
(ii)on the basis of Purkiss v Crittenden (1965) 114 CLR 164 the appellant (defendant) had adduced evidence which, 'if accepted, would establish with some reasonable measure of precision, what the pre‑existing condition was and what its future effects, both as to there [sic] nature and their future development and progress, were likely to be'; and
(iii)the appellant (defendant) having discharged the relevant evidential onus it was for the respondent (plaintiff) 'upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence';
(b)the learned trial judge's application of the principle in Purkiss v Crittenden was mistaken in the circumstances; and
(c)the finding that 'the degeneration is consequential upon the injury sustained' (Reasons [115]) is contrary to the preponderance of medical evidence and wrong.
9.In relation to the assessment of economic loss:
(a)the learned trial judge erred in failing to address, adequately or at all, the appellant's (defendant's) contentions that:
(i)the respondent (plaintiff) was not likely to have been employed by the appellant (defendant) after September 1995 in any event by his unsatisfactory performance;
(ii)there was no evidence that the respondent (plaintiff) (who bore the onus of proof of loss) was able or likely to have exercised his earning capacity in any other employment; and
(iii)on the medical evidence the respondent (plaintiff) was likely to be precluded from working as a tractor driver beyond age 60 in any event due to the progression of pre‑existing degenerative changes lit shoulder;
and,
(b)to the extent that findings to the contrary may be expressed or implied in the reasons for decision, the trial judge did not give sufficient or any reasons for such findings (Reasons [131]).
10.In relation to the award of damages:
(a)the learned trial judge erred in fact and law by:
(i)holding that the severity of the respondent's (plaintiff's) disability represented a most extreme case of a disability of not less than 30% in degree; and
(ii)awarding the respondent (plaintiff) the maximum sum that can be awarded under Section 93F(1)(a) of the Workers Compensation and Rehabilitation Act 1981 (Reasons [133]);
in circumstances where, on the facts the respondent's (plaintiff's) disability was not such a case, counsel for the respondent (plaintiff) had not so contended (in fact submitting 80 ‑ 90% of a most extreme case), and the learned trial judge's discretion thereby miscarried; and
(b)the sum awarded in damages should be reduced to a sum which reflects the proportion which the severity of the respondent's (plaintiff's) disability bears to a most extreme case of a disability of not less than 30% in degree.
AND FURTHER TAKE NOTICE that as the judgment below was delivered over 15 months after a seven day trial, during which there was adduced by the appellant (defendant) a substantial body of lay and expert evidence addressing numerous complex issues of fact and law relating to the circumstances of the alleged injury, the foreseeability of such injury, the system of work complained of, the credibility of the respondent (plaintiff) and his witnesses, the causation of alleged injuries and disabilities affecting the right shoulder and right hand, the causation of alleged psychiatric disorder, and the quantum of loss, all of which was the subject of careful analysis and argument on the part of the appellant (defendant), the appellant (defendant) calls in aid of the above pleaded grounds, the principles enunciated by this Honourable Court in Mount Lawley Pty Ltd v. West Australian Planning Commission [2004] WASCA 149"

Despite the prolixity of the grounds of appeal, it became apparent during oral submissions that in a practical sense they could all be comprehended under three categories. Those categories are:
(1)There was no breach of duty by the appellant. This is put on two alternative bases. The first is that his Honour was wrong to find there was an accident, as described by the respondent, at all. The contention here was that, to the extent the respondent suffered any injury, it was as the result of the development of a pre‑existing degenerative process. The second was that even on the findings of fact actually made by the trial Judge, there was no breach of duty because the jamming described by the respondent was not something which had ever occurred before and so was not something against which reasonable prudence would have required the appellant to take action to prevent injury.
(2)The trial Judge failed to give reasons for not accepting the appellant's evidence and that of his witnesses, and that given the undue delay in the delivery of judgment, that failure rendered the verdict so unsafe as to constitute a miscarriage of justice.
(3)His Honour erred in awarding the statutory maximum amount of damages, in circumstances in which he had found this was not "a most extreme case" in its statutory category.
An appeal to this Court from the District Court is a rehearing (s 58, Supreme Court Act 1935 (WA); O 63 r 10(2), Rules of the Supreme Court 1971; r 4(2), Supreme Court (Court of Appeal) Rules 2005. This Court is obliged to conduct a real review of the trial and of the Judge's reasons (Fox v Percy (2003) 214 CLR 118; [25]). As Kirby J (with whom Gleeson CJ agreed) said in CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [16]:
"… the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact‑finding. Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law. Having concluded a rehearing as so described, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of 'weighing conflicting evidence and drawing … inferences and conclusions'." (Footnotes omitted)

The plaintiff's claim and the defendant's defence

A brief summary of the respondent's case, as pleaded in his statement of claim and elaborated by further and better particulars, is as follows.
The respondent was born on 2 May 1939. The appellant carried on business including the harrowing, rolling and watering of tracks at the Ascot race course. Since approximately 1989 the respondent was employed by the appellant and in January 1995 was employed as a tractor driver pursuant to a contract of employment. The appellant was under a general, statutory and contractual duty to take reasonable care for the safety of the respondent while he was carrying out his employment.
On or about 25 January 1995 the respondent was in the course of his employment with the appellant, using a tractor with an attached water tanker, to water the race track. The water tanker had a tap at the back and a lever at the front. The lever was connected to the tap by means of a long wire. The tap was defective and had been modified by the attachment of a metal weight to hold it closed. When the respondent reached back and pulled on the lever, so as to open the tap, the tap jammed causing significant force to be exerted through the respondent's right elbow and shoulder.
The tap was defective in that it was worn out; rusty; overly tight and difficult to use, which had been an ongoing problem prior to 25 January 1995, requiring the tap from time to time to be disassembled, cleaned and repaired. That was done on a number of occasions.
It is then pleaded that as at 25 January 1995 the appellant had not repaired the defective tap, nor had he warned the respondent of the dangers of pulling on the lever attached to the defective tap and that the accident was caused by the appellant's negligence and/or breach of contract of employment of the respondent.
The particulars of negligence were that the appellant was negligent in that he required or allowed the respondent to use the tractor with a defective tap on the water tank; failed to repair the defective tap by not replacing it with a new and more effective tap; failed to provide adequate information, instruction, training or supervision to enable the respondent to perform his work in a manner so that he was not exposed to hazard and failed to provide a safe place or system of work.
The respondent also pleaded breach of statutory duty and breach of contract.
By his defence, the appellant pleaded that the alleged incident did not occur; the risk of the alleged injury was not foreseeable; the "tap" (gate valve) was not defective; the gate valve did not require repair; the respondent had been properly instructed; the operation of the gate valve did not constitute a danger or hazard; and the appellant did not fail to provide a safe place or system of work.
The amended defence further pleads that if the respondent did suffer loss and damage as a result of the injuries alleged, he had a retained earning capacity and had failed to mitigate his loss; alternatively, if the respondent did suffer injury or residual disability, that was not caused by the accident but by a pre‑existing degenerative - or other - medical condition. There were other denials of loss by the respondent and a plea that even if the respondent were entitled to damages, any award would have to be capped in accordance with the provisions in Div 2 Pt 4 of the Workers Compensation and Rehabilitation Act 1981.
By his defence, the appellant asserted that the respondent had not obtained, nor recorded a determination in the Conciliation and Review Directorate, of a relevant degree of disability of not less than 30 per cent in accordance with s 93E(3)(a) of the Act, nor of a relevant degree of disability of not less than 16 per cent. Pursuant to s 93F(1)(b), where a relevant level of disability of not less than 16 per cent has been recorded, the maximum amount of damages that can be awarded for the most extreme case of that disability is an amount equal to the prescribed amount, calculated in accordance with s 93F(1)(a). It was pleaded that the respondent has not suffered "the most extreme case of the disability for which he has obtained a not less than 16% determination" and accordingly, is not entitled to the maximum amount of damages prescribed by s 93F(1)(b). Finally, on this point, it was pleaded that pursuant to s 93F(1)(a), the amount of damages to be awarded is to be a proportion, determined according to the severity of the alleged disability, of the maximum amount of damages that can be awarded.
By way of a minute of amended reply and defence to counterclaim dated 31 July 2003, the respondent pleaded that by a decision made on 20 September 2001 in proceedings between the respondent and the appellant in the Directorate, it was found that the accident was the cause of all shoulder, arm, hand and psychiatric symptoms then complained of and that the appellant was accordingly estopped from maintaining any assertion to the contrary.
The respondent was born on 2 May 1939. He left school at 14 years of age. He was brought up on a farm in Western Australia and worked on farm‑based activities for a number of years after completing his schooling. He then travelled to the United Kingdom where he studied at bible school and married. On his return to Australia he went back to farming, then for about three years was engaged in the tyre industry. He then became a life and general insurance salesman for several years, and rose to the position of a broker. He found that to be a most stressful occupation and suffered a breakdown. In the summer of 1987 he was engaged by the appellant as a tractor driver on race days at Ascot Racecourse. In the summer of 1988 he again went to the United Kingdom, and upon his return at the end of 1988, he continued his employment with the appellant. Initially, he drove for 4 hours a day and later that increased to 6‑8 hours, and then up to 10‑12 hours per day in 1991. He would keep a record of his hours worked, and at the end of each month submit that to the appellant for payment. The job involved harrowing, rolling and watering the tracks at the Ascot Racecourse.
As the appellant's argument was developed on the appeal it became apparent that what was being contended at the threshold was that the trial Judge had decided the case on an incorrect understanding of what the respondent was claiming to have been the cause of the problem with the valve on the day. It is therefore necessary to address this first.

What actually happened?

The following description of the evidence is distilled from the judgment.
The incident occurred while the respondent was involved in watering the training track. He used a Chamberlain tractor with an attached water tanker. The water tanker was attached by a gooseneck arrangement centrally to the rear of the tractor and behind the driver's seat.
At the rear of the water tanker is a swinging gate water valve that allows water to pass from the tank to a horizontal distribution bar at the very rear of the tanker. When operating, a strip approximately 2 metres wide is sprayed behind the tanker with water which discharges through the spray bar. The water valve has a lever ("the actuating arm") located over the top of the valve and, when raised, the actuating arm opens a gate to allow water to pass through the valve. The gate is a tapered circular disc that engages with a corresponding slot in the body of the valve to control the flow of water.
The gate valve is opened by the tractor operator by means of a bell crank lever and cable. The bell crank lever is located on the left side of the gooseneck (as one looks at it standing directly in front of the tanker) and behind the driver. Effectively, the lever is located in line with, but above, the tractor driver's head height and is operated by the driver leaning, twisting and reaching backwards and pulling down on the lever. To open the valve, the hand lever is pulled down and then towards the rear until the cable attachment point passes below the pivot centre. The valve remains in the open position until the driver lifts the hand lever a short distance to release it above the pivot centre, and the valve is closed by gravity assisted by a weight on the valve actuation arm. The bell crank lever is connected to the valve by means of a steel wire cable which passes along the top of the tank and down to the actuating arm.
In his evidence the respondent said that in the early years the appellant worked alongside him. They had three machines to use. In the later years it was a case of the respondent making sure the job got done while the appellant had other things to attend to. In particular, on race days the appellant was involved on the barrier at the racetrack and he was responsible for that and for maintenance of the barrier and other maintenance around the track for the Turf Club. The appellant also had a farming property at Dunsborough which he used to attend to as well.
According to the respondent, it was a long, hard job he had to do and he needed help. That was provided by his sons, who used to come in and help occasionally as and when required. They were not his employees and he never paid them.
So far as the operation of the water tanker was concerned, the respondent said that what was shown in photographs tendered before his Honour (exhibit 1) was not quite the way it was in 1995. One difference was that the cable passed through a loop, dragging over the top of the tanker at that point, instead of through a pulley wheel as shown on the photographs. Another difference was the addition of a weight bolted to the actuating arm; previously there had just been a piece of wire to a bit of metal (or weight) hanging off the end of the arm to hold it down.
Asked whether he had reason to deal with that area at all during this time with the appellant, the respondent said (AB 1/83):
"---You were dealing with it every day because there was a lot of build-up of soil and that on the back of the tanker all the time. You were splashing lots of water around and kicking lots of mud up and they were all landing on there and that were continually building so you were always in there cleaning the dirt off the back of it. Over a period of time there would be a build-up of sediments et cetera inside the tank which ultimately stopped the gate from closing and hence the reason for the weight that was hanging on the end. The current weight plus the weight that I remember when I drove, it would stop it from closing right down and hence the gate would never shut off fully. When you pulled up the water would still be dribbling out the back and as the weeks went on if you didn't attend to it that would get worse, more water would dribble out. Eventually we would have to pull that whole piece apart and give it a good clean out, it might take a couple of hours or so, which I did on a number of occasions with Mr Marshall.
Did you ever have problems operating the lever and the tap prior to the accident?‑‑‑Yes, there was always a problem, it was a constant thing. If you cleaned it up it was always a lot easier to operate at that point. As the time went along and the sediment built up et cetera inside the tank it got a little more difficult. The lever at the front in those days tended to pull over and drag down the side of the tanker, whereas in its current position it sits a lot more stable than it did then, so that sort of added a little bit to the fun, and every now and again the valve would stick or the piece of metal swinging around on the back off the wire would get itself jammed, which were the major problems that you had."
He said the problem was when one pulled on the lever to open the valve rather than when shutting it off, because it was easy enough to "flick it back" but then it depended on how dirty the gateway was as to whether or not the water kept dribbling out the back (AB 1/84):
" … but as a general rule the major problem we had was when you turned it on and it jammed and it did that a few times."
He said this was an ongoing thing and the appellant knew about it and they worked on it together. It would become obvious that the weight was not doing its job and it just had to be cleaned up. They just did it when they could. That might happen two or three times in the summer period and they would maintain it during the winter.
He said that when operating the lever, the operator would be sitting on the tractor with his feet on the floor in the front and his right foot on the accelerator. It had to be kept on the accelerator otherwise the tractor would stop and the water would puddle. It was common ground that water puddling on the track created a serious danger to horses and riders.
In his evidence‑in‑chief the respondent was asked to describe the incident "on or about 25 January when you say you got injured". He replied that the 25th was the doctor's idea, not his. He said it was a Saturday morning. He thought he had said in his original worker's compensation claim about the 20th, but that was actually a Friday so it had to be the morning of 21 January 1995. It was a race day, a race morning. He said he was running water out onto the chip track, getting ready for the races, and when he went to turn the water on, as he swung around the corner to straighten up, he turned the water on and leaned back and as he did that it jammed. He explained (AB 1/86):
"‑‑‑As I pulled the lever it just jammed. The trouble is I kept pulling it.
Did that have any affect [sic] on you?‑‑‑Yes. It hurt my arm.
What did you do about it? What did you do next?‑‑‑Well, the first thing was to get off the tractor and go around and release the tanker – the tap at the back. Just release it. Give it a couple of shakes and make sure it was free and then get going again.
What did you have to do to release it?‑‑‑The metal piece that morning was hanging over the top of the tap area, it was hanging up on it and the tap was jammed. It's a bit hard to remember exactly the position of it but that's what happened, it just jammed the whole thing up on me and I just had to get – go and free it and just get it so I could get going again. Put it into the off position and go back and go on the tractor and get moving.
Did you complete your watering that day?‑‑‑Yes. The job had to be done. It's like the postman.
Was your employer present on site that day?‑‑‑He was working on the barriers.
Did you speak to him about the problem you had experienced?‑‑‑Yes. I told him that I'd hurt myself at that time but only when I had the opportunity. You don't see a lot of Robert when he was out on the track and he didn't come near me that often anyway, so as soon as I could I told him what had happened and the main discussion was about getting the thing cleaned up because it was in a state where it did actually need doing. But at this time of the year you've gone through all the summer carnivals, it's once again that situation. You don't have the time, sir.
You said you had pain in your arm. How did the pain go that day? Did it persist, did it get better or worse?‑‑‑Yes. It continued all the way through. The main pain area was in my elbow. That's where I felt the worst of it and that in the early part is my main memory of the amount of excruciating pain I went through at that time.
Could you continue your work at that time?‑‑‑I had to continue my work."
When asked whether he saw a doctor, he said he went to church the following Sunday and saw a friend of his, a Dr George O'Neil. He told O'Neil about it and he recommended the respondent see a friend of his, a Dr Peter Connaughton. He said O'Neil rang Connaughton and made an appointment and he went there a couple of weeks or so later. In the meantime, he was taking painkillers as he worked.
He saw Dr Connaughton on 20 February 1995, and he ultimately sent him to see a Mr Prosser who was a good friend and a surgeon. That was in March 1995. Mr Prosser continued stronger painkillers and injections of Depo‑Medrol, initially in the elbow and later in the shoulder.
As at July 1995 he said that he was still at work but was "in a lot of trouble"; the arm was getting a lot worse.
The respondent said that Mr Prosser discussed surgery with him, but he was not keen on that idea. Mr Prosser then suggested the best thing he could do would be to give it a break for a while and do nothing, and if it did not settle down they may have to consider surgery. As a result, he took his mother and wife and young son and went to Tasmania for a couple of weeks, returning about 14 or 15 July. He said that did not do him any good at all. He met the appellant on 12 September 1995 and had the surgery the following day. Initially he thought there was some sort of release and in the first month it was not too bad, but it was all strapped up into the sling. After that the pain was just as high as before and the shoulder was giving him trouble as well.
In 1997 the level of pain in the elbow was still high. Mr Prosser decided there was an entrapment of nerves in the elbow and decided to operate to release that, in March of 1997. However, that did not improve things at all.
The respondent detailed the course of his injury and treatment and gave evidence of loss and damage as a result. I shall return to that later.

He said there was no reason whatsoever why he would not have kept on working for the appellant had he not been injured.
The respondent was cross‑examined at length.
He denied that from late 1994 until he ceased work in September 1995, his employment with the appellant was in jeopardy as a result of incidents out of which complaints had been made about the work of the respondent and his sons.
It was put to the respondent that he used to use his left arm to pull the lever to open the gate valves, but he denied that. He agreed that a photograph shown to him showed a person using his left arm to pull the lever, but he maintained that was not how it was done on the track. He said the appellant also used to use his right hand (AB 1/130):
"That's the way Mr Marshall taught you, I suggest?‑‑‑What, to the right?
To use the left arm to operate the lever?‑‑‑No, he did not.
That's how Mr Marshall did it?‑‑‑No, he didn't.
You've just never done it otherwise?‑‑‑Mr Marshall – every time I ever saw him up there worked his right hand and there was a good reason for using your right hand.
Is that reason the one that you had averted [sic] to this morning, that if you use your right hand you could keep your right foot on the throttle?‑‑‑And also look out to the right to see when the tanker was position [sic] to turn it on as you moved. You had to see where you were before you could turn it on so you needed to use your right hand, turn around like that, watch to see that your wheels are in position against the rail and then turn it on. If you didn't do that you couldn't turn it on. If you turned to the left you couldn't look - - -"
Counsel for the appellant then put:
"Would you not know where the tanker was by reference to where the tractor was on the rail? In other words I put to you, you weren't steering the tractor according to where the position of the trailer was?‑‑‑When you come onto the track your tractor enters first. You have to swing fairly wide and then as you swing around and swing your tractor back towards the rail you need to look back to see that your wheel of your tanker is in the correct position up near the rail, and it's usually only two or three inches away. When you get to that position and you know you're correct you then pull the lever and get the water running. You have to look back to see where the position of the tanker is and then you pull the lever down, so you're using your right hand. If you're doing it with your left hand you couldn't look to the right and see the tanker was in position. No, you could not do it by looking ahead."
There was no dispute that the tractor and tanker combination drove around the track with the running rail on the right.
The respondent continued to maintain that the appellant trained him to drive the tractor one afternoon and after that he did it on his own. He said the appellant was always right‑armed using the lever and he did not know of anybody that drove the tractor who used their left hand.
Taken to the construction of the gate valve and actuating arm, he repeated there was a weight on the end of the handle (that is, arm) of the valve originally, but now the appellant had a block actually bolted to the handle.
The respondent said there was always maintenance required on the tanker and although that was the appellant's job, not his, on occasion they did it together.
He agreed that the internal parts of the valve were made of marine quality brass and he did not think brass rusted. At that point he was taken to his further and better particulars of statement of claim in which he had asserted that the tap was worn out, rusty, overly tight and difficult to use, and had been an ongoing problem. It was put to him that the tap was not rusty. He said the use of that word was to indicate what it was like inside. There was a lot of sediment coming through which was in the water being pumped from underground. It was pretty muddy and there was shale which used to peel off from the inside of the tanker, all of which collected in the tap area. He saw all of that "junk" in there when they cleaned the tap out. It collected inside that area and had to be cleaned out.
Later again, he was asked about the counterweight and it was put to him that the photographs depicting a counterweight bolted to the actuating arm of the valve showed that as it was when the incident occurred in January 1995. He denied that. It was then put (AB 1/136):
"And you are mistaken about the weight being wired on at that time?‑‑‑I drove the tractor for eight years, there was a piece of wire with a bit of metal hanging off the back – off the end of the things, that's it. That weight was not there at any time when I worked with Mr Marshall.
That weight that you say was wired on was removed and changed to the weight which is depicted in the photographs in 1993?‑‑‑The weight that I - - -
Do you agree?‑‑‑What, that it was changed in 1993?
Yes?‑‑‑No, I don't agree with you at all."
And again, a little later (AB 1/137):
"‑‑‑When I left Mr Marshall that piece of wire with the piece of metal hanging off the end which was acting as a counterweight, as this one now does, was still on the tractor.
You told his Honour that that weight that you described as being connected by a wire snagged?‑‑‑Well, it was swinging loose, yes.
What did it snag on?‑‑‑It swung itself – at the time when I pulled the lever that day it swung itself up and it looped itself over the top here and the whole thing was jammed. It just used to do that occasionally, get caught.
But I understood you to say that you were trying to open the valve?‑‑‑Yes, I was.
When you got your elbow injury?‑‑‑Yes.
How would the fact that weight being over the top of the valve ‑ ‑ ‑ ?‑‑‑Well, you just pull it like that and pulled it quickly as you ran into it, and that didn't happen often but it did happen and the whole thing jammed.
But if the weight had swung over the bar, and I'm painting your scenario because it's not what the ‑ ‑ ‑?‑‑‑Well, I'm just telling you what happened on that day.
If the weight swung over the bar how would that affect the opening? It would make it difficult to close, wouldn't it?‑‑‑Look, it's hard to go back. All I can remember is having to get off the back, pull that piece out of there and pull the lever back down into place.
You've never said anything in this case up until this morning about the weight connected by a wire to the handle of the valve contributing at all to the problems that you had on the day that you say that you injured your elbow?‑‑‑It was all part of the problem you had on the tanker and on this particular day that's what happened, the piece of wire hung up as it's done – look, we're going through two scenarios, we're going through the jamming up of the – that natural jamming, we're going through the bit of wire that used to hang on there, we have two things that happened on that tractor at that time.
What I'm putting to you, Mr Lockyer, is that you have never said before today in pleadings or to doctors or in briefing your forensic expert that a weight swinging over the bar snagged causing difficulty in operating the lever?‑‑‑Well, I don't know what I've said to everybody else but I do know what happened on that occasion and I do know what happened on either [sic] odd occasions and I do know that sometimes it will jam. It has got absolutely nothing to do with me trying to hide any issue, the issue is there was a piece of that hanging off which threw itself up on that day and landed up on top of there. I removed that and I had to push the lever back. Whether it's a combination of the two issues at the time I don't know, all I know is that that happens.
The fact that your solicitors, you didn't tell them about the counterweight having any bearing on the ‑ ‑ ‑?‑‑‑I have informed everybody of this piece of metal hanging off the back.
You were asked in the request for further and better particulars to explain what you meant by a defective tap?‑‑‑Yes.
You appreciate that? You gave your answer, we've already read from it in part?‑‑‑Yes.
Page 9 in the book of the papers:
The tap was defective and it was worn out, rusty, overly tight and difficult to use?
‑‑‑Yes.
You made no reference there to the counterweight contributing to the ‑ ‑ ‑?‑‑‑No, it is not mentioned there at all. No, it's not mentioned. It was a reference to the state of the tap.
Yes. None of the doctors that you have seen, either for treatment or for medico‑legal have you described the weight snagging as you have suggested this morning?‑‑‑I can only go on what happens when you work on that tanker and if it's not mentioned here – I would have mentioned it, whether or not it's in there, the main reference has been to the state of the tanker all the way through, but this was a factor with those things just hanging off the back.
If it were the case that the counterweight as it appears in the photographs numbered 9 and 10 of Mr Martin Simms ‑ ‑ ‑?‑‑‑Yes.
‑‑‑were the case, that's the way the counterweight appeared at the time ‑ ‑ ‑?‑‑‑This counterweight?
Yes?‑‑‑It wasn't there.
That didn't happen the way the way [sic] that you say, did it?‑‑‑That weight was not on there prior to me leaving Mr Marshall.
Is it your case, Mr Lockyer, that the snag caused by the weight being connected by a wire caused the difficulty in operating the lever? What is it?‑‑‑When you're sitting on a tractor and you're pulling a lever and the thing suddenly jams on you and then you have to get off.
Yes?---Now, some of the time when you do that it was a simple case of a lever that had got stuck or in this particular case, as on a few other occasions, the piece of metal would fly up and be sitting on top.
Yes?‑‑‑It's as simple as that, so there are two scenarios involved.
What do you say happened on the day that ‑ ‑ ‑?‑‑‑All I can tell you is that what happened on that day that I had to remove the metal from out of it, out of that position, and just drop it back down and then free the gate up and put it down."
It was put to the respondent again that he never had any problems with operating the lever or the valve. He insisted that he did and that it got sticky and it stuck and, on a few occasions "this problem with the wire, et cetera occurred".
It was put to him that his elbow problems just came on over a period of time, but he was adamant that was not so; that there was a specific incident that brought it on, that being the one he described.
Much later in cross‑examination, he was asked again about his evidence that at the time of his injury there was a weight on the actuating arm suspended by a wire (AB 1/164):
"And I understand you to say that that weight had flipped over the arm?‑‑‑Yes.
Over the valve?‑‑‑Yes, that's correct.
When did you see that?‑‑‑When I got off the back of the tractor. I had to go and reverse it.
So on the occasion that you used your left – I beg your pardon – your right arm to pull the lever and it didn't move. Is that what happened?‑‑‑I didn't say it didn't move, I said it jammed.
Well, did the lever move when you pulled it?‑‑‑Well, for me to have travelled any distance to have injured my arm the nature it did it, it had to move, I had to move it in the beginning, yes. It could have not injured me to the level that it did if the gate hadn't started to open.
So how far had the lever moved?‑‑‑Good grief. It's eight and a half years ago. I'm coming up onto the track flat out. I pull the lever and as I pull it it jams. How far did it move? I don't know that one.
So I'm just going to clarify this. The valve wasn't jammed in a closed position?‑‑‑All I can tell you is what happened is I got off the tractor, I went back, I flipped the bit of metal back down back into position and released the tap two or three times to settle it back down.
Did it appear that the weight that you say had flipped over the valve had anything to do with it jamming?‑‑‑Speculation on my part. I'm not inclined to think that.
Your counsel has opened on the basis that the counterweight snagged?‑‑‑Well, it was caught up there but you're asking me to speculate on whether it caused it or whether the thing jammed and it flipped up.
I'm simply asking when you went back to see what had happened ‑ ‑ ‑?‑‑‑The argument has been about the status of the tap, not about a piece of metal.
So in your mind does the metal have anything to do with it at all, the weight?‑‑‑In my mind clearly there's taking the bit of metal which had flipped over like that, putting it back into position, freeing the tap and getting back on the tractor and getting on with the job. Now, speculation as to whether or not the metal flipped up and caused that or whether it was the tap jamming, which it did quite on a regular basis, causing it and then causing the metal to flip up, I wasn't at the back of the tanker when it happened. You're only asking me to speculate.
Did you have to do anything to the counterweight in order to release the gate valve?‑‑‑Just pick it up and put it back down again.
Did that have the effect of releasing the gate valve?‑‑‑No. I still had to shift it, and you do that two or three times. Give it a good movement, make sure it's free, put it back into position, get back on your tractor and get on with your job."
Asked if he attached any significance to the fact there was a counterweight suspended by a wire from the valve arm, he said he would be speculating as to whether that caused the incident or not; his own feeling was that when it jammed like that (and it was not the first time it had happened) it jams and the force of the sudden stop flicks the weight over. He was not saying the metal counterweight caused it, but nor was he saying it did not have something to do with it; he was saying (only) that the tap jammed. He moved the valve back by pushing it down and lifting it up a few times to free it and make sure it was loose.

Grounds 1, 3, 4, 5 and 6

It is convenient to deal with these grounds together. The respondent had pleaded that the gate valve was defective in that it was "worn out, rusty, overly tight and difficult to use". The appellant argues now that in his evidence the respondent was claiming the valve "jammed" because the counterweight attached by a length of wire to the actuating arm swung up and over the valve causing it to "jam" (in some way which seems not to have been explained in the evidence and which was not the subject of any expert evidence).
This was important, because although there was no dispute on the evidence that the valve would stick occasionally and require extra force to be applied to open it, and that the appellant was aware of that, there was no evidence apart from the respondent's asseveration that the valve could become jammed because the counterweight had swung over and snagged the actuating arm. There was no evidence the appellant had been told or was aware of that problem.
The respondent's evidence was that when he used the word "rusty" he was referring to the sediment, shale, and other "junk" that collected in the valve and made it "very tight".
Whatever the precise immediate cause, it was accepted on both sides that the valve would occasionally stick. It is submitted the respondent used the word "jam" interchangeably to describe what he said were the two scenarios. The first, he said, was "natural jamming" which I take to be a reference to the valve gate itself sticking, requiring extra force to open. The second was the jamming caused by the wire snagging, and which could only be rectified by stopping the tractor, walking around to the rear of the tanker and throwing the weight and wire back onto their correct side.
Later, however, the respondent said he was not inclined to think the weight flipping over the valve had anything to do with it jamming on the day, and it would be speculation for him to say whether he could not release the valve with the lever because the weight had snagged the actuating arm or because the valve had stuck suddenly, causing the weight to flip up and over the valve. Importantly, he did say that when he put the counterweight back over to its correct side, that did not release the gate valve; he still had to shift it (presumably the valve) two or three times, give it a good movement and make sure it was free.
The respondent called Mr William Apgar, an engineer. The appellant called Mr Martin Simms. Both had examined the tanker and gate valve. Both agreed that the valve could stick on occasions such that it needed more force to open it, but that this was not a defect. Apgar said it could stick, depending on how fast it closed. The actual gate was tapered, so that if it was shut more quickly, it would go in (to its seat) more tightly. That did not reflect any defect in the valve – it was just part of the design.
Simms said the gate valve was a very simple, very reliable piece of equipment, manufactured from bronze, which is non‑rusting. This was a reference to its internal parts. He said that would corrode slightly, but would not rust. It was very durable and could be expected to function for a long time without problems given a reasonable level of cleanliness, but that if there was build‑up of material in the valve that could affect its functioning. He explained that when he operated the lever he found that on most occasions it operated very easily. On some occasions "and they seemed to be reasonably unpredictable", the lever was somewhat stiffer to operate. On those occasions he found that what he would describe as "a short, sharp jab" readily released the lever and it would often then be free again the next time. Asked why that might have been so common he explained that (AB 2/408):
"… - because you're dropping a tapered disc into a tapered slot much the same as driving a wedge into, for example, split a log of firewood the force with which the disc is inserted in the slot on the previous occasion will affect the force required to extricate it later on. Also it's a function to some extent of the pressure acting on it from the water although I would expect it to be a marginal effect. Obviously the higher the water pressure the more it's pressing the valve against one of the ceiling faces. Probably more particularly, the water itself comes from a bore and that water will have in it some suspended solids and these will be particles of vegetation, silicone particles, sand particles and that sort of thing. If there are any of those particles in the slot they will tend to act as a friction‑increasing agent, shall we say, to cause the extrication to be more difficult then otherwise. My view is that most likely the key factor is the rapidity in which the valve closed and whether it closed into running water, for example, if the tanker had gone round the track and was actually empty at the time the valve was closed I would expect it to seize harder than if it closed against running water which would tend to buffer its closing."
In short, it was his evidence that it could be expected that the valve would stick on occasion and would require attention, regardless of what method was used to actuate it.
Simms was cross‑examined about a test he had done to determine how much force was required to cause the valve to open at all. He had attached a spring balance to the lever. The balance measured to a maximum of 20 kilograms. When force was applied to the lever through the balance, he found he had reached more than 19 kilograms without moving the lever. He did not take it to the maximum, so was able to say only that a force of more than 19 kilograms on the lever was necessary to start the gate valve opening.
Asked whether the sticking of the valve which he had mentioned could be reduced by maintenance or by fitting a new valve, he said he did not think so because it was a characteristic of the valve's design. Owing to the fact that it was tapered (AB 2/415):
"… the harder it closes up into the seed [sic seat] the more, as it were, jams in there and no amount of maintenance or cleaning or care would ever guarantee that it won't jam in hard enough to require a bit of a yank to get it back out next time."

He added that contaminates in the water would tend to act as a friction increasing medium and that for a given closing force, would tend to increase that force (presumably he meant the force needed to open it again) next time.
In re‑examination Simms was asked what he did on those occasions he could not get the lever to work with almost 20 kilograms of force. He said (AB 2/417):
"‑‑‑I then decided to test it subjectively by operating the valve myself and I went through quite a number of cycles of operating it to get some repeatability and I frankly can't tell the court how many times that was because when you're focused on what's happening it's a little bit difficult to recall but certainly it was – I repeated the operation over and over and over to get a subjective feel for – to try and understand what was likely to make it jam. On most occasions I found that it came open very, very easily. Probably at about the force that I had measured, around about three kilograms which is very, very small. On other occasions I found that if it didn't open and there was a – if I started to pull and it just simply wasn't coming, I would just let the lever go and it just went 'clunk" and gave it a little shock load and that pops the valve open fairly readily.
Yes, so after you hadn't opened it on the occasions where your balance went out to 19 or 20 kilograms what did it take to open it?‑‑‑In terms of subjectively?
Yes?‑‑‑All I can say is that I didn't find it difficult. In other words, I didn't – I simply didn't keep flexing muscles until I ran out of muscle as it were. I just simply let the lever go and gave it a bit of a clunk and it came open and I did repeat that a couple of times. The sticking or not sticking seemed to be quite unpredictable and I still suspect it was how quickly it went back the previous time."
He reiterated that the tendency of the valve to stick was a result of the design of the valve; it was "a function of the angle of the wedge" and that as long as that remained unchanged, so would the tendency to stick.
In his evidence the appellant said that in the time the tanker had been used no one had reported anything to him about the operation of the valve and nothing was reported to him by the respondent. He did agree that the valve did have a tendency to stick and that when that happened it was necessary to tug on the lever to free it. He said he agreed with what Simms had said about that. He denied the respondent's claim that sometimes the valve stuck because of the build‑up of sediment and rust. He said (AB 2/472):
"‑‑‑The valve doesn't need cleaning out. The pipe from the tank to the valve gets a build‑up of rust and – well, it's the iron from the water. It's not the valve itself. There's a three‑inch pipe from the tank that goes to the valve and then there's a valve and then it goes down to the dribble bar.
Do you agree that as the rust and other particles build up, the valve sometimes gets a bit harder to use?‑‑‑No. The rust and that doesn't build up on the valve because, you know, of the water pressure going through it all the time. It's just where the sediment and that builds up on the pipe is because of the water left in it sort of overnight. There's a fair bit of iron content in the boar [sic bore] water that we use.
Sure?‑‑‑There's no rust or sediment sort of building up in the valve itself.
Yes. I'm just suggesting that when you get a lot of rust and settlement, it affects the way the tap operates?‑‑‑No.
You don't think it ever has any effect?‑‑‑No, not – there's rust builds up in the dribble bar itself. There's caps on the end of it that you've got to remove and sort of clean the rust out of the dribble bar itself, the final part of it, but not in the gate valve itself."
As his Honour saw it, the real issue put for him to decide was whether or not, and if so when, the incident occurred; so too was the system of work and the method used for operating the lever so as to open the valve ([7]). In recounting the evidence on this, his Honour said (judgment [13] – [14]):
"13 It was the plaintiff's practice to reach back behind him with his right arm to pull the hand lever down to open the gate valve and similarly when he closed the valve. On the occasion complained of he said that he leaned back to turn the water on. The lever jammed. He kept pulling down on the lever to free it up but to no avail. In the course of doing that he felt excruciating pain in his elbow. Despite that he got off the tractor and went to the rear of the tanker and released the lever. He noticed that a metal counter weight was up on the pipe and the lever was jammed. He fixed the problem, got back on the tractor and continued to work for the remainder of the day.
14The plaintiff said that he mentioned the incident to the defendant later that day. The defendant was at the time working on the starting barrier as it was a race day. The plaintiff said that the main discussion had been about getting the valve cleaned up to avoid it sticking again."
His Honour said ([16]):
"It was the plaintiff's evidence that from time to time there were problems with the lever and they would be caused by a build up of dirt in the valve which would cause the release gate to jam. It depended on how dirty the gateway was but it generally jammed when the lever was being pulled down to open the gate valve."
His Honour said the respondent's evidence was that he complained about this to the appellant and said two or three times each summer the valve would be disassembled and maintenance undertaken to clean it.
He referred to the respondent's evidence that he also used his right arm to open the lever, as did the appellant. He mentioned that in their evidence the respondent's sons also said that they always used their right arm, because it was easier and allowed them to align the tractor with the running rail. Each of them said occasionally the lever would "jam" and he would have to give it a sharp tug or hard pull downwards to open the valve. His Honour then referred to the appellant's evidence that he always used his left hand to open the lever and that was the way he had demonstrated it to the respondent. He mentioned the appellant's evidence that he had never seen the respondent doing it differently, that the machinery would be inches away from the rail and the driver would be focused on going forward and the lever could be pulled down without looking back. He said it was the appellant's evidence that the gate valve operation was simple and easy and that on the odd occasion it could be a bit stiff but no excessive force was needed; he referred to the appellant's denial that the respondent had ever reported to him any difficulties in operating the lever, nor had he been involved with the appellant in cleaning sediment from the valve. He mentioned the appellant's evidence that there was no rust or sediment build up in the valve and that it might go two years or so before it was necessary to clean out the gate bar/spray pipe.
His Honour noted the evidence of a witness John Ellis Ransom, called by the appellant and whom had worked for him driving the tanker in 1982/1983.
The Judge recounted Ransom's evidence that he would pull the lever with his left arm and never experienced any difficulty with the operation of it although he conceded in cross‑examination that the right arm could be used, but it would be difficult and he suggested the driver might not have control of the tractor.
Having then referred to the evidence of Simms relating to the action required to operate the lever with either the right or left hand, his Honour concluded (at [22]) that he was satisfied "the lever could be operated with either the left or right hand" and that "[e]ither way it required some rotation of the torso and the arm being raised and reaching back and above head height to pull the lever down". He accepted that using the right arm would make is possible to look back along the side of the tanker to ensure its alignment with the side fence and to see that water was flowing as it sprayed out from the back of the tanker. He then said (at [23]):
"Despite evidence to the contrary I have no reason not to accept the plaintiff's evidence to the effect that it was his practice to use his right arm to operate the lever in the manner which he describes. His evidence was corroborated by that of his sons who similarly used the right arm."
Mr Staude for the appellant submits that his Honour's reasons here were deficient and that he did not resolve the issue whether or not the respondent had been shown to operate the lever with his left hand. In my view nothing turns on this. What his Honour found was that the system of work was unsafe because it involved the driver twisting his torso, leaning back and reaching behind and above his head to pull down on the lever which could sometimes stick and require a hard pull or jerk to release. It was of no moment to his Honour's finding whether that was done using the right hand or the left hand.
His Honour gave brief reasons for then finding that from time to time the valve would "jam" and would require extra force on the lever to open:
"25 It would seem that the force required to open the valve was low on most occasions. Mr Simms measured the force required at approximately three kilograms. However, on occasions when the valve tended to stick more force was required. That force was not measured by Mr Simms because under a steady pull it approached the limit of the spring balance used by him for testing purposes and which had a limit of 20 kilograms. There was a risk of the balance detaching if the valve suddenly opened. Mr Simms' evidence was that if the valve did stick 'a short sharp pull on the lever readily freed it'. The force required however was in the order of 20 kilograms or upwards.
26Whilst the gate valve (body and gate) is bronze and is not liable to rust surface deposits and sediment could build up in the gate valve as was evident from photograph 10 attached to Mr Simms' report. That could cause the valve to stick.
27All of that is consistent with the plaintiff's evidence. It is consistent in that:
(i) from time to time the valve would jam;
(ii)when it did jam a short sharp downward pull down on the lever was required to open it the valve;
(iii)sediment would built up in the gate valve; and
(iv)from time to time maintenance was required to clean the sediment to make the valve easily operable by the operator.
28It follows therefore that I accept the plaintiff's evidence insofar as those matters are concerned. It is supported by the evidence of other witnesses and in particular by the defendant's engineer Mr Simms."
It is apparent his Honour was focused on the proposition that the valve had stuck. He made no mention of the alternative proposition that it may have "jammed" because of the counterweight wire snagging the actuating arm. Under the heading "breach of duty" his Honour said ([35]):
"35 Accepting the plaintiff's evidence as to the valve sticking I also have no reason not to accept his evidence that he did from time to time complain to the defendant that the valve was sticking. The fact of the valve sticking combined with the awkward upper bodily movement required to pull the lever on (whether that be with the right or left hand) suggests to me that the system employed was not in all the circumstances safe. The combination of twisting, reaching back above head height and pulling down on the lever and the fact that when the gate valve jammed, a short hard pull was required, in my view exposed the plaintiff to the risk of injury. It was not a simple straightforward and easily undertaken task. Whilst it was not repetitive the high impact of the occasion when force was required was such that there was a real likelihood that injury could be sustained. It was not without risk and, in my view that risk was foreseeable."
That risk, his Honour said, could have been avoided: "[t]he sticking of the valve could have been avoided by regular scheduled maintenance to ensure that it did not stick or jam". As the witnesses and counsel had, his Honour used the words "stick" or "jam" interchangeably and without distinguishing between the two scenarios identified by the respondent.
It also seems to me his Honour's finding that the sticking could have been avoided by regular scheduled maintenance had no evidentiary support. The evidence of the experts called by both sides was that sticking of that kind was a feature of the design of the valve. His Honour did not refer to any evidence to justify that finding. Although he did at that point go on to refer to the evidence of Apgar, that went to alternative means of operating the lever, first by the installation of a "Bowden" cable system which would have placed the operating lever in a position that could be comfortably operated by the driver whilst facing forward, or alternatively a power valve operating the system using a dash‑mounted switch or valve.
At [38], the trial Judge said he rejected the appellant's evidence that he was not aware of the problem of the sticking valve. However, as indicated above, the appellant did not say he was not aware of the problem of the sticking valve. On the contrary, he said it use to stick occasionally, but could be freed by pulling the lever harder. That misapprehension would be of no consequence to the outcome arrived at by his Honour, if the Judge was correct to deal with the issue as one which turned on whether the incident relied upon by the respondent was that the valve itself stuck.
In my opinion, his Honour was correct in dealing with the matter that way. The proposition that the incident the respondent described in evidence was one of the gate valve jamming because the counterweight wire became entangled with the actuating arm, was not raised clearly before us (at least until oral submissions) and was apparently not raised (or at least not clearly raised) before his Honour. It was not something put before him in a way calling for resolution, if at all.
Furthermore, careful examination of the respondent's evidence reveals he was not in fact asserting that his injury was caused because the wire snagged. What he did say was that when he pulled the lever that day the counterweight swung up and looped itself over the top and the "whole thing" was jammed. That happened as he was trying to open the valve. He then had to get off the tractor, walk around to the back of the tanker, lift the counterweight and wire over to their correct side and then free the valve by pushing it up and down two or three times. Properly understood, his evidence was that the valve would "stick" from time to time and on some occasions when it did that, the sudden jerking of the actuating arm, via the cable, caused the counterweight and wire to be flung up and over the valve assembly. When the problem was only the sticking valve, it could be rectified by a harder pull on the lever. When that problem was compounded by the counterweight being flung over the valve assembly, it was necessary for the driver to stop the tractor, walk around to the rear of the tanker, relocate the counterweight and free the valve.
It was the latter "scenario" which the respondent said occurred on 21 January 1995. It was not part of his pleaded case that the snagging of the counterweight wire caused the valve to "jam"; nor was that his evidence. Indeed, when pressed in cross‑examination to say that, he would not be drawn, venturing that to say that would be to speculate.
It is complained that his Honour did not address the distinction between "jamming" and "sticking" of the valve. However, having regard to the way the case was pleaded and fought before him, and the evidence of the respondent, it was not necessary for him to do so. In my view, the appellant's argument on this point fails.
In retrospect, particulars (b) and (i) of ground 1 seem implicitly to be predicated on a "jamming" of the valve, in the sense that the actuating arm had been snagged.
Given my conclusion about that, the premise underlying them falls away and they cannot be made out.
I turn now to address the complaints raised by these grounds, under the general rubric that they are of erroneous findings in respect of credibility or fact, indicated or exacerbated by inadequate reasons.
The trial Judge identified two issues, they being when the respondent suffered the injury and secondly, whether it was caused in the manner he alleged.
In expressing himself satisfied that the respondent was injured on 21 January 1995, his Honour acknowledged the date the first medical certificate gave, for it was 20 January, and the statement of claim gave it as 25 January. He referred to the respondent's evidence that he recalled it happening on a Saturday race day at Ascot, and upon checking the calendar later, he identified 21 January as being the race date. His Honour said he had no reason not to accept the respondent's evidence on that.
On the second of these issues, the Judge said the respondent's description of how the injury occurred had been consistent in the history he gave to medical practitioners and to the workers' compensation insurer. He noted the appellant agreed that on the details of the incident as described by the respondent it was "possible", and that the respondent had no prior history of injury or pain in the right elbow. The respondent said simple analgesics were used to abate pain, but when it persisted he sought medical attention. The Judge said that would not be an unusual pattern in response to this type of injury. He then concluded that (AB 1/31, [47]):
"Having regard to the evidence and accepting as I do the plaintiff's evidence and I have no reason not to accept his evidence on these matters I am satisfied on the balance of probabilities that he did sustain injury in the manner claimed and consequently I find that the defendant's breach of duty of care was causative of the plaintiff's injury to the elbow."
The appellant argues that these findings turn simply on an uncritical acceptance in toto of the respondent's evidence and that his Honour's reasons were deficient (and wrong) because he failed to address the appellant's contentions at trial that the respondent's account of the incident lacked cogency, consistency and corroboration and failed to address the issue joined by the appellant. It is asserted that imprecision as to the date, together with other features of the evidence, militated against a finding of acute injury.
In cross‑examination the respondent said he did not particularly recall talking to the appellant that day. Taken to his answers to interrogatories, he agreed he had answered "yes" to a question whether he had reported the accident immediately, but said that depended upon what one meant by "immediately"; he reported it to the appellant as soon as possible. He said he did not know whether he spoke to the appellant in the morning, afternoon or evening, nor exactly when it was, but he did tell him. Taken then to a question that if he did not report the accident after it occurred, and his answer that the appellant was not on the grounds at the time, the respondent said he meant he was at the water tank stand when it happened and the appellant was not there, he was out on the barrier doing his job. This was consistent with what he had said in evidence‑in‑chief, that he had told the appellant at the time that he had hurt himself, but only when he had the opportunity. He did not see a lot of the appellant when he was out on the track but he told him as soon as he could. He said the main discussion was about "getting the thing cleaned up" because it was in a state where it did actually need doing.
Counsel for the appellant submitted the respondent's answers to interrogatories were contradicted by the evidence of the appellant, which was that he was at the race course all day on race days. There is plainly a conflict between the appellant and respondent on whether or not the appellant was told at all about the incident around the time it happened. His Honour made no specific finding about that, but it is not a point which affects his ultimate conclusion. There is no necessary conflict on the point whether the appellant was at the race course that day.

The Approach of the Trial Judge

In his judgment, Lockyer v Marshall (2004) 37 SR (WA) 90, the trial Judge, having reviewed the pleadings, said at [7]:
"As to liability the real issue centres around the circumstances of the incident itself. Whether or not and if so when such incident occurred is in issue. So too is the system of work and the method used for operating the lever so as to open the tap at the rear of the water tanker. Involved in the resolution of these issues is a determination of the plaintiff's credibility as a witness and also some of the other witnesses called."
His Honour reviewed the evidence called. He commenced with that of the respondent about the jamming or sticking of the lever, the nature of the accident, the way in which his arm was hurt, and the fact that he had mentioned it later that day to the appellant. He referred to the evidence of the respondent that he operated the lever with his right arm. His Honour adverted to the appellant's evidence that he used his left arm, and instructed others to do so. The respondent's evidence was, his Honour noted, supported generally as to the use of the right arm and the jamming of the lever, by the respondent's sons, Paul and Christopher.
His Honour noted that the appellant's evidence was that no such jamming occurred in his experience. His Honour referred to evidence of a Mr Ranson called by the appellant which tended to support the evidence given by the appellant but, his Honour noted, this witness's experience related to 1982 and 1983. The trial Judge referred to the evidence of Mr Simms, the consulting engineer called by the appellant, about his testing of the apparatus and finding that the valve would stick on occasions to such a degree that although ordinarily the lever was easy to operate and required little pressure, on the occasions when it jammed the force required would be in excess of the limit of his testing device which would register a force of up to 20 kgs.
It seems to me that when one reads his Honour's judgment it is perfectly clear that as to the mode of operation and as to the tap sticking on occasions, the trial Judge accepted the evidence of the respondent, supported as it was by the evidence of his sons and, particularly, by the appellant's engineer, Mr Simms. In my view, that is an affirmative decision that the trial Judge found the respondent to be a credible witness, although at one point his Honour observed that he had no reason not to accept the respondent's evidence. It is clear that what his Honour meant was that for the reasons he gave, concerned with the support of the respondent's evidence by other witnesses, he accepted that evidence and it followed that he rejected the evidence of the appellant.
His Honour did so expressly in relation to complaints by the respondent to the appellant that the valve was sticking on occasions. Again, it is clear, particularly at [38], that his Honour found support for the evidence of the respondent that the problem had been encountered on other occasions, including when the machine was tested by Mr Simms.
His Honour did not refer to the dispute between the witnesses as to whether the replacement of the water tanker in 1993 involved a change in the way the weight was fixed to the actuating arm which opened and closed the tap, but it seems to me that this was one of those peripheral matters which assumed no importance. The judgment did not depend on any more precise finding than that, perhaps because of sediment or other build‑up in the system, the tap jammed and the lever encountered some resistance while the respondent was pulling it so that the tap required to be manually freed. Whether on the other hand a contribution was made by the weight becoming stuck in some way seems to me to matter little as to liability and, in particular, as to the credibility of the respondent who, as I have said, did not purport to be able to ascribe a precise cause for the occurrence of the jamming or sticking of the tap.
On the other hand, the trial Judge did refer to the history given by the respondent to treating medical practitioners. He did so against the background of clear evidence of the respondent that so far as he recalled he had spoken to all consistently about the onset of the symptoms. The trial Judge noted that he had been referred to a Dr Connaughton, a specialist occupational physician whom he first saw in February 1995, about a month after the incident occurred. Then the symptoms were described as involving the right arm. The respondent expressed concern about their onset towards the end of January, and it was clear he did not then attribute that onset to any single incident. For example, the respondent expressed concern about whether spraying herbicide at Ascot about a week before the onset of the symptoms might have contributed to their development.
Dr Connaughton referred the respondent to an orthopaedic surgeon, Mr Prosser, who apparently took a similar history in March 1995. The trial Judge noted that the first medical certificate given by Dr Connaughton simply describes the occurrence of the disability in "Jan 1995" and gives, as the respondent's description of the event, "pulls a lever on a water tanker with R arm, whilst driving a tractor." Such a description may or may not have been intended to refer to a particular incident, or to repetitive actions, particularly when, according to the respondent's evidence, he did make clear to the medical practitioners that the problem occurred from time to time.
The trial Judge also referred to an employer's report form sent to the workers' compensation insurer, dated 4 July 1995 and signed by the appellant. This form was apparently accompanied by a form making the respondent's claim for compensation, which described the accident, but that form is not in evidence. As I understand it, it referred, very generally, to the incident in January 1995 upon which the respondent relied in this litigation. As to that, the form filled out by the appellant says that the respondent had continued work and did not speak of any problem until March 1995, a first medical certificate being received on 3 May 1995. On this form, the appellant advised that he agreed with the details of the occurrence provided in the workers claim form, noting simply, "It is possible."
The Judge noted that the appellant's wife, Mrs Marshall, had given evidence that she first knew of the respondent's disability in May 1995 when she was approached by the respondent with a request that she pay a medical bill because he had torn a tendon in his left arm. He said that Mrs Marshall should say that this condition was aggravated when he drove the tractor, but that was no problem and he would continue working. The trial Judge noted that none of that was put to the respondent when giving evidence, contrary to the rule in Browne v Dunn (1893) 6 R 67. His Honour therefore placed no weight on this evidence.
His Honour had regard to a series of medical reports made by a variety of medical practitioners, both before and after the matter had been dealt with within the Conciliation and Review Directorate of WorkCover. His Honour noted the view of the review officer that there was no reason to conclude that the history of injury as related to medical practitioners was unreliable. The trial Judge said that if he was not bound by that finding, as well as others to which he referred, he would come to the same findings on the evidence before him. And his Honour incorporated the analysis and conclusions of the review officer into his reasons by reference, although he did not set them out.
On that basis, having regard to the evidence referred to generally, the trial Judge concluded, at [46], that the respondent's description as to how the injury had occurred was given consistently to medical practitioners and to the workers' compensation insurer. His Honour said that prior to the incident in January 1995, there was no history of injury or pain in the right elbow. He observed that it was not the sort of injury which required immediate medical attention, but simple analgesics were used to abate the pain. Only when the pain persisted did the respondent seek medical attention. The trial Judge found that behaviour to be consistent with the type of injury received in the manner described by the respondent.
In my opinion, in relation to the occurrence of the accident, there is no relevant inadequacy in the trial Judge's reasons. His Honour explained why he accepted the evidence of the respondent and why the principal matters upon which the respondent's credibility was challenged were not such as to lead to an incapacity to rely upon that evidence. As to the review of the reasoning process exposed in the reasons, to be conducted in this Court, I consider, for the reasons I have given, that there is no justification for this Court to conclude that the trial Judge has erred in the fact‑finding process by reason of any failure to properly use his advantage as the trial Judge. Nothing in the material relied upon by the appellant demonstrates that the findings of the Judge are erroneous, and far from being plainly improbable, those findings seem to me to be well and truly open. In my view, this Court would not be justified in interfering with the conclusion of the trial Judge that the accident occurred in the way described by the respondent.
I should make reference to two matters concerning the respondent's credibility. The appellant tendered four surveillance videotapes in evidence. The trial Judge considered them and, in the end, found that footage unhelpful in relation to the respondent's credibility. No complaint is made about his Honour's decision in that regard.
Finally, his Honour referred favourably to the credibility of the respondent and noted the evidence given by his wife, supportive of the respondent, to which his Honour did not attach great weight, but which he clearly accepted and described as being consistent with the history given to the various medical practitioners. His Honour referred to the evidence of a Mr Old, an employee of the Turf Club, who, although called by the appellant, gave character evidence favourable to the respondent, describing him as being a Christian, spiritual man of good character. That evidence was accepted.
Further, although no great weight appears to have been placed on it, the respondent's demeanour in the witness box clearly played a part in his Honour's acceptance of his evidence. He described him as presenting "as a person of mild disposition who related his circumstances in a measured and straightforward way. He was controlled in response to what was an extensive and aggressive cross‑examination."
That is sufficient, in my opinion, to dispose of the matters raised in grounds 1, 3, 4, 5 and 6, none of which I would uphold.

Was there Negligence?

I turn then to ground 2 in which there is a confused mixture of different complaints, some of which overlap the matters that I have just been discussing, which are complaints of alleged errors in the trial Judge's fact‑finding process in relation to whether or not the accident occurred, based very substantially upon credibility issues. Therefore, I will not deal further with such assertions as that the sticking of the valve, on the evidence "had never previously occurred, and was not likely to occur"; or that the Judge erred in finding that the valve might stick and that it, from time to time, did stick. Nor will I deal further with the simple, but unsustainable, complaint that the trial Judge's findings of fact were, to some extent, made "in the face of the appellant's evidence to the contrary".
However, this ground raises two other matters of complaint. In the first place, it appears to be asserted that the inference of breach of duty or negligence was not reasonably open. This is a challenge to the trial Judge's decision in respect of which this Court is more at large. In CSR Ltd at [22], Kirby J reminded us that it has been accepted, at least since Warren v Coombes (1979) 142 CLR 531, 551, that where an appellate court is concerned with the question whether inferences were reasonably open, then although it will give respect to the trial Judge's views, it will regard itself as being at liberty to give effect to its own views as to whether or not, upon the facts as found, the inference of negligence was reasonably sustainable.
I have no doubt that it was. The system of operating the water tap by a lever connected to the tap by a wire was defective because it was prone to stick and be difficult to move, generally as a result of sediment building up and causing friction. Further, the respondent was or ought to have been aware that the action of operating the lever, for a number of operators including the respondent, involved the use of the right arm and an awkward twisting motion involving a reasonably foreseeable risk of injury in the sense adopted by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40. The same reasonably foreseeable risk of injury was attendant upon the act of pulling the lever with the left arm of the operator if the tap suddenly stuck.
This ground goes on to raise the question whether the Judge erred in his conclusion that there had been a breach of the duty of care derived from the reasonably foreseeable risk of injury. In one respect, it may be that the complaint of error has some merit, but if so, it seems to me that any error is immaterial. I refer to the matter raised in ground 2(f) which complains of a finding by the trial Judge that the sticking of the valve could have been avoided by regular scheduled maintenance. By that his Honour clearly meant that there ought to have been a program of regularly opening the tap and cleaning any debris and sediment from the system, thereby keeping it operating freely. That seems to me to be a supportable conclusion.
But in any event, his Honour went on, relying on the expert engineering evidence, to observe that there were other systems which could be employed, other mechanical systems and an electrical system which would reposition the mechanism operated by the driver of the tractor so as to eliminate the awkward process of twisting and reaching behind or which, by the use of an electrically operated mechanical device, would have eliminated the need for physical effort on the part of the operator. It does not appear to have been established that all of those means of eliminating the risk were precluded by prohibitive cost. In the final analysis I would not uphold ground 2 and, in my view, the challenge to the finding of liability in negligence may not be made good.

Estoppel

I do not propose to discuss further the question of estoppel arising out of the decision of the review officer. The matter has been dealt with by Roberts‑Smith and McLure JJA and, in any event, as I have noted, the trial Judge said that his findings of fact in relation to the question whether the negligence caused the damage or harm for which the respondent sued, would have been the same or were the same as those of the review officer. In those circumstances, this issue, raised on the pleadings originally by the respondent, falls away. The law has been stated by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363, and I could usefully add nothing on the point.

Pre-existing Degeneration

As to the question of pre-existing degeneration raised by an amendment to the defence which inserted par 11A, in my view the trial Judge was right to remind himself that, in accordance with the decision of Purkess v Crittenden (1965) 114 CLR 164, the issue was one in respect of which the appellant bore an evidential onus. It was open to his Honour to conclude, as he did, that the degeneration, which was only evident in the right shoulder joint, according to the evidence of Dr Ker, was consequential upon the injury sustained in the accident. His Honour did not have to go so far, of course, but in my opinion there can be no complaint that his Honour concluded that the physical injuries of which the respondent complained, and their sequelae, including a depressive illness from which the respondent suffered, were caused by the accident and by the negligence of the appellant. I would not uphold ground 8.
Ground 9 relates to two distinct issues in relation to the assessment of damages and, in particular, damages for economic loss.
The first is an aspect of the matter which is the subject of ground 8, the assertion that the respondent would probably, in any event, have been precluded from working as a tractor driver beyond the age of 60 because of the progression of pre‑existing degenerative changes in the right shoulder. The respondent was born on 2 May 1939. When the accident occurred he was therefore aged 55 years. By the time the trial Judge gave judgment, the respondent had attained the age of 65 years, having had his 65th birthday on 2 May 2004. The trial Judge found that the respondent intended to work to that age, and it is clear that his Honour made his assessment of damages upon that basis. He did not find a causally relevant pre‑existing degenerative condition.
Roberts‑Smith JA has referred to an observation by Dr Bell, a consultant orthopaedic surgeon, in a report made by him on 27 May 1999. In a later report, made on 10 January 2003, when he was again asked the question whether the respondent would have become incapacitated from performing his duties as a tractor driver in any event, due to the progression of a pre-existing degenerative condition of the shoulder and/or the elbow, he answered:
"I do not expect that he would have become incapacitated from his pre‑accident duties as a tractor driver in any event due to the pre‑existing age‑related degenerative condition of his shoulder and/or elbow." (2AB679)
The two statements are confusingly at odds. No attempt appears to have been made at trial to resolve the confusion. This suggestion may, I think, therefore be put to one side.

Problems with the Employment

The other and more substantial matter referred to in ground 9 is the contention that the trial Judge failed to decide whether or not the respondent would, in all likelihood, in about September 1995 have lost his job by reason of his unsatisfactory performance. In that event, the argument put is that the proper finding would have been that the respondent would, in all likelihood, have been unable to obtain alternative employment and so it is said that any assessment of economic loss would have to be measured against an otherwise reduced earning capacity.
The limitations of this evidence need to be appreciated. The appellant gave evidence that at about the end of 1994 he started to receive complaints from the management of the Turf Club as to the standard of work in the watering and maintenance of the track. I gather that such complaints were said to have been received both before and after January 1995. There was a dispute in the evidence as between the appellant and the respondent as to whether and when those matters were brought to the attention of the respondent. But there seems to be little doubt that the working relationship between the two men deteriorated by mid 1995. It is evident, I think, that by that stage the appellant was putting to the respondent that unless his performance improved his contract would be in jeopardy.
There is no doubt that on the respondent's evidence, although he struggled on after the accident, he was having difficulty with the work. He had taken some time off in the hope that his injury would settle down. In September 1995 he had surgery on his right shoulder. That marked the end of the work because thereafter the respondent was unable to carry it out and the employment ceased. In the circumstances, in my opinion, it would be difficult to say to what extent difficulties in the performance of the work were related to the accident and to what extent they related to the respondent's failure otherwise to perform the work properly.

The trial Judge made no finding about that. His Honour proceeded upon the basis that, as at the date of the accident in January 1995, the respondent proposed to continue to work until he was 65. There was no physical impediment to him continuing as a tractor driver, if not with the appellant then with another employer. But he was a man who had worked in a variety of occupations and would not, I would have thought, have been regarded as a person who, apart from his age, would have difficulty in obtaining employment about as remunerative as that in which he was engaged with the respondent as a tractor driver.
On the other hand, after the accident his pain and incapacity was such, together with his depressive illness, that despite his efforts to achieve a degree of rehabilitation, the trial Judge concluded that such earning capacity as he had prior to the accident had been effectively destroyed by that event.
In making an assessment of economic loss, the trial Judge said that he adopted the approach advocated in closing by counsel for the respondent. A schedule had been provided, to which his Honour referred. It proceeds upon the basis that the pre‑accident earning capacity was about that being exercised as a tractor driver and, in one form of occupation or another, that earning capacity would not have diminished in the 10 years until the respondent turned 65. The trial Judge accepted that at trial that assessment would have yielded past loss of income for the period from January 1995 of in the order of $250,000, and for the short period which remained from then until the respondent turned 65, a further $40,000 might be allowed.
That seems to me to be a perfectly defensible process of reasoning and judgment in the assessment of damages in the circumstances of the case. The evidence did not, in my opinion, require a different approach upon the basis that, within a short period after the accident the respondent would, in all probability, have lost his job even if the accident had not occurred, and that he would then have had little in the way of earning capacity upon which he could otherwise call. I would not uphold ground 9.

The Cap on Damages

Ground 10 raises the proper interpretation and effect upon the process of assessment of damages of s 93F of the Workers' Compensation and Injury Management Act 1981 (WA), as the Act is now called. Roberts‑Smith JA has discussed the provision and its proper interpretation, having regard to relevant authorities which, however, dealt with different legislation, somewhat differently worded. Nonetheless, I think, with respect, that the view expressed by his Honour is right. Shortly put, my view is as follows.
Section 93F(1) applies to an award of damages. The definition of the term "damages" in s 93A makes it clear that by that term is meant all damages that may be assessed by the court at common law, both the non‑pecuniary and pecuniary damages for past and future loss which may be awarded.
Section 93F also operates against the background of the assessment of the degree of disability under s 93D. By reason of the operation of s 93E that agreement about or determination of the degree of disability within the meaning of the Act has its own impact upon the right to seek damages at common law. A recorded degree of disability of not less than 30 per cent preserves the capacity to seek an award of damages at common law. The worker's capacity to seek an award of damages at common law is more restricted if the degree of disability is agreed or determined to be not less than 16 per cent but less than 30 per cent.
But that concept of a degree of disability is purely a creature of the statute calculated in accordance with the statute for the purpose of determining whether or not, and if so what, restrictions the statute will place upon the worker's capacity, to pursue, in addition to a claim for worker’s compensation, an action for damages for personal injuries at common law. The notion of a degree of disability has nothing to say, in my opinion, about the proper assessment of the quantum of damages to be awarded at common law.
Then when one comes to s 93F(1), one finds that in a case where the worker can get before a court to pursue a claim for damages at common law, but has not had a degree of disability of not less than 30 per cent determined and recorded (ie, where the degree of disability has been determined to be not less than 16 per cent, as in this case) the subsection provides that:
"(a)the amount of damages to be awarded is to be a proportion, determined according to the severity of the disability, of the maximum amount that may be awarded; and
(b)the maximum amount of damages that may be awarded is Amount A, but the maximum amount may be awarded only in a most extreme case of a disability of less than 30% in degree."
The difficulty which arises in the proper interpretation of the section is readily apparent. But in my opinion it does not prescribe an approach which simply requires the court to make a mathematical determination or assessment of the nature of the injuries suffered compared to the most serious form of injury, of whatever kind, which will not merit the determination of a degree of disability by the statutory processes of not less than 30 per cent. That is simply not what the subsection says is to be done. What it requires is the assessment of damages in the ordinary way. The provision makes no alteration to that process as an exercise of the court's judgment pursuant to the common law. That must, I think, be what is meant by a determination "according to the severity of the injury" because I cannot think that what the section requires is for the court to make two assessments.
It cannot be that the court would be required to assess damages in relation to the case before it according to the ordinary processes of the common law. It cannot then be the case that the court is required to imagine some form of most extreme case of a disability of less than 30 per cent in degree and make an assessment of damages that would be applicable to such an hypothetical case. The section cannot require the proportion of the damages assessed in the instant case to be measured against that second assessment and then apply that proportion to Amount A so as to get the damages which may be actually awarded. That would be a nonsense and the policy considerations which would dictate that process are impossible to discern within the context of this legislation.
In my view, damages having been assessed in the ordinary way, according to what is described as the severity of the injury, they are to be measured against Amount A. If the damages as so assessed equal or exceed that amount, then Amount A may be the award of damages to be made because the process undertaken will establish that the case before the court is a most extreme case of a disability of less than 30 per cent in degree. Read in that way, the section truly caps the court's capacity to award damages at common law, and that does accord with the discernible policy considerations underpinning the legislation, which are twofold – to prevent recourse to the common law in cases of minor injury, and otherwise where recourse to the common law is permitted, to limit the quantum of damages which may be awarded, except in cases of really serious injury determined in accordance with the statutory process.
The approach to the section which I have thought to be correct was that taken by the trial Judge. As Roberts‑Smith JA has noted, the trial Judge's assessment of damages would have produced an award of just under $383,000. Amount A, as at the date of assessment, was $293,990. That therefore became the amount of the judgment. In my opinion, that approach was correct. I would dismiss the appeal.