McGinniss v the Southern Regional Cemetery Trust
[1989] TASSC 43
•31 August 1989
Serial No 40/1989
List "A"
CITATION: McGinniss v The Southern Regional Cemetery Trust [1989] TASSC 43; A40/1989
PARTIES: McGINNIS, Roger John
v
THE SOUTHERN REGIONAL CEMETERY TRUST
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 4/1988
DELIVERED ON: 31 August 1989
DELIVERED AT: Hobart
JUDGMENT OF: Green CJ, Neasey and Wright JJ
Judgment Number: A40/1989
Number of paragraphs: 30
Serial No 40/1989
List "A"File No FCA 4/1988
ROGER JOHN McGINNISS v THE SOUTHERN REGIONAL CEMETERY TRUST
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
NEASEY J
WRIGHT J
31 August 1989
Order of the Court:
Serial No 40/1989
List "A"File No FCA 4/1988
ROGER JOHN McGINNISS v THE SOUTHERN REGIONAL CEMETERY TRUST
REASONS FOR JUDGMENT FULL COURT
GREEN CJ
31 August 1989
In my opinion for the reasons given by Wright J the appeal should be dismissed.
File No FCA 4/1988
ROGER JOHN McGINNISS v THE SOUTHERN REGIONAL CEMETERY TRUST
REASONS FOR JUDGMENT FULL COURT
NEASEY J
31 August 1989
I agree with Wright J that the appeal should be dismissed, for the reasons given by him.
File No FCA 4/1988
ROGER JOHN McGINNISS v THE SOUTHERN REGIONAL CEMETERY TRUST
REASONS FOR JUDGMENT FULL COURT
WRIGHT J
31 August 1989
On 24 August 1984 the appellant was employed as a leading hand at the respondent's lawn cemetery at Kingston. In the course of his employment, whilst carrying a railway sleeper from one grave site to another in preparation for a funeral at the second site, the appellant slipped and fell, sustaining a severe injury to his back. The appellant claims that this injury was caused by the respondent's failure to take reasonable care for his safety or, alternatively, the respondent's failure to ensure that the appellant was not exposed to a risk of injury which, by the exercise of reasonable care, may have been foreseen or avoided.
The trial of his action for damages took place before Cosgrove J in November 1987. On 18 December 1987 his Honour gave judgment for the respondent. His Honour found that the plaintiff and his principal supporting witness, Mr Short, had purposefully given untruthful evidence. He based that finding partly upon his observations of their court demeanour and in part upon the nature and content of the evidence which they gave. He placed no reliance on nearly all of what they said, and it is plain from the limited findings which he made that he only accepted as facts those matters which were supported by documentary material or oral evidence from other witnesses. At the outset therefore it may be appreciated that this court is confronted with very real difficulties in making a determination of the issues which have been raised in this appeal.
It was contended, inter alia, that his Honour was not justified in rejecting the evidence of the appellant and Mr Short, but there is nothing in the argument presented which would lead me to such a conclusion and accordingly I reject this submission.
In describing the appellant's work environment, his Honour stated as follows:–
"In order to understand his claim, it is necessary to describe the method whereby an excavated grave in a lawn cemetery was then and is now prepared for a burial.
The first step is to place a baulk of timber (in this case a sleeper weighing about 42 kilograms and a smaller length of timber of similar depth and width) along the low side of the grave. Other timbers are placed at the ends and along the other side. These timbers are said to provide a level, stable platform for a lowering device. I cannot think that this is anything other than a rudimentary arrangement effecting little more than a distribution of weight rather than levelling; for the sleeper although said to be 6" thick is clearly not uniformly so; its counterpart on the high side of the grave is ½" thick, and yet the gradient from high side to low side must vary from place to place. I imagine the end pieces are spacers designed to keep the side pieces parallel. At all events, these timbers constitute the foundation for a chequer plate of aluminium in the form of a hollow parallelogram. Over the perimeter of this is spread green artificial matting, and on it stands the lowering device, apparently made of steel from which depend straps, designed to bear the coffin down into the grave at a rate measured to be respectful by a form of clutch or governor hidden within the metal part of the device. When the coffin is in the grave and the mourners departed, a tractor driven trailer containing some or all of the excavated soil is brought to the grave site and dumped (in the manner of a dump–truck) into the grave at the relevant time. Grave covers are (and were) available, and although it seems to have been thought that their primary use was to cover empty or 'stock graves', it was permissible to use one to cover a coffined grave until backfilling could commence.
None of the equipment was duplicated, with the result that, when successive burials were programmed, the equipment had to be taken by hand from the first site to the next site designated, before that site could be used. The minimum time–space between burials was one hour. Sometimes four burials were programmed for the one day.
It would not be difficult to devise a more efficient and probably a more decorous system, but it is safety rather than efficiency or decorum with which I am concerned.
The system in use was assailed as dangerous because:
(a)burials were scheduled so closely proximate in time as to necessitate hurried work;
(b)the sleeper was an awkward heavy burden for one man and increased the danger of slipping or falling;
(c)the system did not embrace any measures designed to reduce risks created by muddy, slippery ground;
(d)the requirement for more or less immediate backfilling was creative of hurry and a resulting reduction in the workers' care for their own safety.
In answer to these general allegations, Mr Reeve, the manager of the Trust, who has had a long experience in this field, having been superintendent at Carr Villa for many years prior to his appointment as manager for the Trust in about 1982, said:–
(a)an hour was a reasonable period between burials. It had always been the standard minimum at Carr Villa. However, because funeral corteges were sometimes late in arriving, and mourners sometimes reluctant to depart, there were occasions when it was necessary to hurry.
(b)employees did sometimes carry the sleeper unaided (Mr Reeve said that he had himself done so).
(c)lawn cemeteries tended, in inclement weather, to be muddy and slippery. This cemetery was no exception, but such conditions were practically unavoidable.
(d)the requirement was that the grave be covered immediately after the burial – by backfilling if that was feasible, and if not, then by use of a grave cover;
and
(e)the system as a whole had been in use at Carr Villa for many years, and the plaintiff's was the only injury sustained by an employee.
It may be noted that there was another sleeper on site available to both parties. As the other timbers were in no way special, it would have been simple to duplicate the timber foundations. It apparently did not occur to either the plaintiff or Mr Reeve to do so.
It may also be noted that apart from these proceedings, neither before nor since the 24 August 1984 has the plaintiff suggested to management that the use of the sleeper (or any other part of the system) is hazardous. The only written reference to the sleeper is in the plaintiff's monthly report of August 1985, the month in which the Writ commencing this action was issued. The complaint then made was that the sleeper was 'extremely awkward and heavy under wet conditions'. I discount evidence of oral complaints of a similar nature.
In hindsight, it is possible to say that, given the conditions to be encountered underfoot, some slipping and falling would inevitably occur, that the tendency to slip might well be enhanced when the sleeper was being carried, and further enhanced if one man carried the sleeper. But would a reasonable employer foresee a risk of injury in the portage of the sleeper by one man? With some hesitation, I have come to the conclusion that he would. Work of this nature would be commonplace on a farm. But injuries of this causal genus do occur. In that context, they are rightly regarded as being practically unavoidable. In the present context, it would have been simple to reduce the risk by provision of more and/or better equipment."
His Honour then undertook an examination of whether or not the risk involved in the portage of a sleeper by one man was causative of the appellant's injury. He did this in two stages. Firstly, by examining whether or not the appellant on the day of the accident was working under any real time constraint and then, having concluded that there was no evidence to satisfy him that such was the case, he went on to examine whether or not the appellant's carrying of the sleeper was causative of his fall. His Honour examined the principal passage in the appellant's evidence which related to this question and then, taking the view that there was no other evidence supporting the appellant's claim that the sleeper caused or contributed to his fall, he concluded that he could not be satisfied that it did.
Having re–examined the evidence and the arguments of counsel, I am prepared for myself to draw certain inferences of fact which his Honour the trial judge declined to draw. Having regard to the general topography of the cemetery and particularly the area between the two grave sites, coupled with the condition of the soil brought about by heavy rain prior to the date of the appellant's accident I have no difficulty in concluding that the size and weight of the load being carried was a material factor in causing the appellant to slip as and when he did. This finding however does not lead inevitably to a finding of negligence against the respondent.
As already mentioned, his Honour's first consideration in discussing the issue of causation was whether or not the appellant was acting under time constraints which caused him to essay the task of carrying the sleeper on his own. It was not and could not be suggested that if two men were available to carry the sleeper this would have constituted an unsafe system of work. The appellant was leading hand at the cemetery and was Mr Short's superior officer. He had a considerable degree of autonomy in planning and executing the day to day work required at the cemetery. Mr Abel Reeve was the manager of the cemetery but spent the greater part of his time in Hobart, although he did exercise a certain amount of on–going supervision of the appellant's work. Whilst his Honour made no specific findings as to the acceptability of Mr Reeve's evidence, there is no reason to suspect that he discarded or did not believe it. It is significant therefore to understand that Mr Reeve acknowledged that he introduced the appellant to the method and equipment used at the grave side for the purpose of effecting burials. The following passage from his cross–examination illustrates the extent of his involvement in this procedure:–
"MR AYLIFFE: It was you that in fact showed the men in the first place how to set the grave up?......Yes.
So to that extent that it was your system?.....Well it was the system that had been developed by someone else that I brought with me from another place.
It was you that designated the sleeper that was to be used?.....It was me that used that sleeper in the first place.
And designated that, that was the sleeper the men were to use at least on a temporary basis?......Well the statement has been made in the Court that it was to be used on a temporary basis.
And you agreed with that statement yesterday, Mr Reeve?.....Yes. Right.
Well you agree with it don't you?.....Yes.
Yes. And the memorandum of July 1984 made it clear that it was the Manager who was to secure the services of the best back hoe operator each time?......Yes.
You dealt with the back hoe operators?......Yes.
It was you that gave instructions on such matters as to the fact that the mud had to be swept away from the road?.......Yes.
That was contained in September, '84 memo?......Yes.
You had to monitor the amount of traffic on a weekend to decide whether the cemetery was going to be left open or kept closed to traffic of a weekend?.......Yes.
That was contained in the April, 1984 memo?.......Yes.
It was you that decided which parts of the cemetery were going to be used at any one time, whether D section was going to be used, C section was going to be used, etc.?......Yes.
And you gave directions on that?.....Yes.
In fact in the winter months of 1984 you'd given a direction that the graves were to be dug as close as possible to the road?......Yes.
To avoid people walking off the road as much as possible?.......Yes.
So you controlled not only the actual section but you gave directions as to the sub–sections of these areas that were to be used?.......Yes, when difficulties arose the situation was monitored.
It was the Board's decision, and presumably you have some input into the decision, that only one area of the cemetery was going to be used at any one time during the winter months?......Yes."
In the course of his duties the appellant was required to furnish monthly reports to the respondent Trust. In his report for July 1984 the following passage appears:–
"LATE FUNERAL
On Tuesday 26 June, 1984 we had a funeral at 2.00 pm. and another at 2.50 pm. The 2.00 pm funeral was 10 minutes late. It was a large funeral and by the time the Undertaker got the flowers out of the car and set the casket up and the Minister had to take longer because the lowering device is very slow, we had to immediately ask the family to leave because 15 minutes is insufficient time for us to set up for the next grave. We request the Trust consider extending the time between funerals to 75 minutes."
Earlier in his evidence Mr Reeve had been cross–examined as to this report as follows:–
"MR AYLIFFE: Now in July, 1984 Mr McGinniss in his monthly report drew in writing to you the fact that sixty minutes was not on occasions a sufficient gap between funerals to allow them to dismantle and set up?.....I don't remember the date but I do remember he drew it to my attention.
Well, assume that I'm right and that was drawn to your attention in July of 1984?......Right.
And you replied in your July of 1984 memorandum in the following terms: 'A request to extend time between funerals from sixty minutes to seventy five minutes was declined. Instead it was agreed to purchase a second aluminium plate so that setting up for a second funeral may be commenced sooner.' Right?.......Yes.
So it's clear, is it not, that you had had it drawn to your attention that on occasions the men did not have sufficient time between funerals? Do you agree with that?......Yes, on that specific occasion, yes.
And you would have understood by that that the men were therefore required to hurry between funerals on occasions?.....On a few occasions, yes.
So, you understood did you not, that your workmen were on occasions rushing in these wet, slippery and muddy conditions down at the Kingborough Cemetery?.....I was aware that they would need to move fairly smartly to get the change over done, yes.
And at your recommendation, the Board declined the suggestion that a longer period be allowed between funerals?.......I wouldn't recall whether it was at my recommendation or not, but the Board did decline it.
And the way that you saw of overcoming the problem was to provide a second set of grave side props?.....If I remember rightly, it was the Chairman at the time that suggested a second set of props."
Despite the Chairman's suggestion in favour of the second set of props, no additional equipment was provided before the appellant's accident occurred in August 1984. When asked why these had not been provided by the date of the accident, Mr Reeve said "Because we had difficulty in getting the aluminium surround fabricated". To my mind neither this explanation nor the evidence which followed amounted to a satisfactory excuse for the failure to supply these props.
During the course of the trial a suggestion was made by counsel for the respondent that additional sleepers were available at the cemetery which could have been utilised by the appellant to set up the second grave, at least to some extent, prior to the termination of the first burial if it was found there was insufficient time to move all the equipment from the first to the second burial site. It was also suggested that Mr Short would have been available to assist in carrying the sleeper from the first burial site to the second burial site if he were allotted this task rather than being directed to commence backfilling the first grave, a task which appears to have been seen by both the appellant and Mr Short as having much higher priority. It was suggested that the grave could have been temporarily covered with a grave cover and it is clear from the evidence that there were seven (7) of these covers available at the cemetery at the relevant time.
Whilst not without substance, it seems to me that these issues are somewhat peripheral to the central issue, namely whether the two funerals were so scheduled, or in fact occurred, with such a brief interval between them that the appellant was practically compelled to undertake the carriage of the sleeper from one site to the other on his own. His Honour the trial judge in analysing this particular problem correctly reminded himself that the appellant's evidence as to the actual time interval could not be relied upon. However there was other evidence from which a finding could have been made that the scheduled interval was either 1 hour 10 minutes or 1 hour 5 minutes, depending upon whether one accepts the documentary evidence consisting of burial notices published in the daily press, or the evidence of Mr Reeve as to arrangements made with him by the funeral directors. One needs to ask oneself therefore whether such a time interval was so inadequate, of itself, as to lead to a conclusion that the appellant must have been placed under pressure.
Having carefully considered this aspect of the matter I must say for myself that, notwithstanding the very relevant representations made by the appellant to the respondent in his monthly report for July 1984, there is a dearth of acceptable evidence in this case which could lead me to conclude that the appellant felt obliged to carry the sleeper as he did without calling on Mr Short to assist him, and that he did this as a consequence of the time pressures created by the spacing of the two funerals. In other words, there is nothing that would persuade me that the trial judge was in error when he said that the appellant had a real choice as to the manner in which he carried out this relatively simple task. If Mr Short was available to assist him he clearly did have a choice and the fact that he, as the senior of the two men, chose the method which unfortunately resulted in the injury he sustained does not necessarily bespeak negligence on the part of his employer in implementing or continuing the system of work which obtained at the time of the appellant's mishap.
The appellant also contended that here was an appropriate situation for the employer to give a clear warning against the practice of one man carrying a sleeper between grave sites on his own. But I do not think this was a case in which it can be said that the employer's failure to take this step amounted to negligence causative of the accident. The words of Mason J, as he then was, in Raimondo v The State of South Australia (1978–79) 23 ALR 513 at 518 are of particular relevance. His Honour said:–
"It is against common sense to say that the taking of reasonable care by an employer called for the giving of an elementary instructional caution in relation to the slight, albeit evident, possibility of injury which an imprudent mode of adjusting the trestles would entail. The risk of injury was slight, the possibility of its occurrence was as apparent to the employees as it was to the employer and there was no probability that the appellant would have taken any greater care for his safety had he been given an instruction or warning of the kind suggested. The appellant took a short cut, no doubt thinking that the possibility of injury resulting from an accident of the kind that occurred was so inconsiderable that he could disregard it. The caution or instruction which he suggests should have been given was a basic counsel or caution of which he was or must have been aware. His injury is in these circumstances the result of his own default and cannot be properly laid at the door of the respondent."
Counsel for the appellant urged us that the later High Court decision of Turner v The State of South Australia (1982) 56 ALJR 839 supported his submission that a warning should have been given in the instant case. For my part I do not see that the High Court has in any way resiled in Turner from the view expressed by Mason J in Raimondo to which I have just referred. Gibbs CJ at p840 said:–
"In the present case there were two measures which the respondent employer might have taken to avert the possibility that his employees might suffer injury. The first was to give a warning or an instruction that no individual employee should attempt to lift a petrol drum by himself. However, it has not been established that if such a warning or instruction had been given the appellant would have acted on it. He was already aware of the danger of trying to lift the drum, but he nevertheless proceeded to endeavour to do so, apparently because he had lost his temper. He was rightly held guilty of contributory negligence."
Whilst his Honour's concluding remarks are directed to the issue of contributory negligence, it is perfectly plain that, had the only particular of negligence against the employer been a failure to warn, Gibbs CJ would not have found in favour of the injured workman on this basis. A similar approach can be seen in the judgment of the other four members of the court at p842. The court eventually found in favour of the appellant, but only on the basis that there had been an unreasonable failure on the part of the employer to employ a system of work which would result in the drums of fuel being left in an upright position and therefore easily accessible to workmen such as the appellant who needed to gain access to that fuel for the purpose of refueling his welding equipment.
In McLean's Roylen CruisesPty Ltd v McEwan (1984) 54 ALR 1 Gibbs CJ (with whom the other four Justices constituting the court agreed) said at p7:–
"The second alleged head of negligence – the failure to warn – was that on which the respondent succeeded in the Full Court. In O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229, the court said: 'The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.' It is not implied by this statement that an employer is never under a duty to warn his employees of risks which are usual or expected; for example, if it is apparent that the employees are making a practice of ignoring an obvious danger, a warning may be necessary. No detailed rules can be laid down; the question simply is whether in all the circumstances of the case the taking of reasonable care by the employer involved the giving of a warning: see the discussion by Mason J in Raimondo v South Australia (1979) 23 ALR 513 at 517–18."
In the three cases just discussed the workmen injured were all experienced in their job, and clearly the experience and apparent competence of a workman in discharging duties during which he sustains an injury are important factors to be taken into account in assessing whether or not an employer has been in breach of a duty to provide a warning. The present case is quite different from, for example, a young or inexperienced man who is required to work in close proximity to machinery where momentary inattention may place him in grave peril (see Commissioner of Railways v Halley (1978) 20 ALR 409, per Stephen J at 412–413).
The appellant's counsel was at pains during the course of the appeal to urge upon us that his client was a man of low intellectual ability and little education. It is true that, upon the evidence, the appellant's scholastic achievements were virtually non–existent. There is also some evidence to suggest that in the compilation of his monthly reports to the respondent he was assisted in large measure by Mr Short. However, there is no reason to conclude that the appellant was unintelligent or incapable of learning from experience. He had previously held a job of some responsibility with the Hobart City Council and he had been working at the cemetery for some 18 months before the accident occurred. He was capable, even if with Mr Short's assistance, of preparing and submitting coherent reports which indicate to me a practical, sensible and indeed persistent attitude in relation to a number of matters arising in relation to the conduct of the cemetery. Mr Reeve and the respondent Trust appear to have seen the appellant as being "wearisome" in his persistence, an attitude that I think was less than fair on the documentary material available. Mr Reeve conceded in fact that "the Board were sick of the complaints that came". Nonetheless it is plain that the appellant was generally capable of carrying out the functions of a leading hand and discharging the duties entrusted to him. At the time the accident occurred he could not be placed within a category of employee requiring special direction, attention or warning. In my opinion the circumstances of the appellant's employment did not require that he should be warned against carrying a sleeper on his own in the conditions that existed on 24 August 1984.
However these considerations do not make an end of the matter. There is a strong line of recent authority in the High Court of Australia including McLean v Tedman (1984) 155 CLR 306; Bankstown Foundry Pty Ltd v Braistina (1986) 65 ALR 1 and Bus v Sydney County Council 6/6/89 (as yet unreported) which has reaffirmed the principle that if an employer is or ought to be aware of practices by an employee which expose that employee to a not insignificant risk of injury, even if those practices may themselves be characterized as negligence on the part of the employee, the employer is under a duty to positively forbid the use of the risky practice and to implement any practicable alternative and safe system which the injured employee is subsequently able to demonstrate at trial was available yet not utilized at the time of his injury.
Perhaps the rule is to some extent a corollary of the principle that an employer cannot delegate his duty of care to some third person (see Kondis v State Transport Authority (1984) 154 CLR 672). The issue now under discussion was raised at the trial in the present case by virtue of para(f) of the particulars of negligence contained in the statement of claim and raised again on the appeal in grounds 7 and 8. It was not an issue which was developed by argument or submissions in the proceedings before this Court but I see no reason to restrict my consideration of the matter only to those specific issues raised by counsel for the appellant. I have therefore examined the transcript of the evidence of Mr Reeve and other defence witnesses for the purpose of ascertaining whether there is any evidence capable of supporting the appellant's case on this ground.
The only evidence which I have been able to discover which bears upon this question was given by Mr Reeve as follows:
At p634
"Now as a general rule you understood that Mr McGinniss and Mr Short, when time permitted, carried the sleeper from gravesite to gravesite, didn't you?......Yes.
That was the accepted method of moving the sleeper?.....They carried it between them, or else they carried it in the bucket of the tractor as I had seen them do.
Yes, but generally the procedure was they carried it between the two men?.....Yes."
......................................................
At pp643–644
"Did you take any steps to rebuke the plaintiff as soon as you heard that he'd injured himself carrying the sleeper by himself for carrying the sleeper by himself?.....No, I didn't.
Did you report the matter to your Board?.....No, I didn't.
So you weren't really surprised to learn that this sleeper is on occasions or had been on occasions handled by one man?.....Well, as I said before, the discretionary arrangements were there for the men to handle the affairs day by day.
But, Mr Reeve, you understood the general system was that this sleeper was carried around.....Yes.
In circumstances where there was a hurry it came as no big surprise to you that one man rather than two had decided to carry the sleeper.....As I've said before, in similar circumstances I'd do the same myself.
Right.....In fact I'd go a step further than that and say I have done it myself.
HIS HONOUR: You have carried a sleeper yourself?
WITNESS: Yes. Not at Kingston, your Honour, that was at Carr Villa."
......................................................
At p653
"MR AYLIFFE: But generally speaking, you were encouraging your staff at Kingborough to keep vehicles, during the winter months, off the grass surface?.....As much as practical.
So you would've preferred the normal system, that is, of the men carrying the sleeper and the other props, to have taken place, rather than to have utilised heavy machinery for that purpose?.....Yes, the two men carrying, yes."
.......................................................
At p654
"MR AYLIFFE: In those answers, Mr Reeve, you state that the system for the removal of the railway sleeper from one grave site to another, was for it to be lifted by Mr Short and the plaintiff?.....Yes."
(This appears to be a reference to Mr Reeve's answer to Interrogatory No 9 which reads as follows:
"INTERROGATORY NO 9
If the plaintiff and any other employees were permitted and/or required to lift railway sleepers for and in the course of their employment with the Defendant state the type and weight of railway sleepers so used and state whether this type and weight of railway sleeper was in use by the Plaintiff on the 24th August, 1984.
No 9.
The plaintiff with the assistance of the plant operator, Mr G. Short, were required to lift railway sleepers for and in the course of their employment such sleepers being second hand and well worn and weighing approximately 42 kilogrammes when wet. This was the type of sleeper in use on 24th August 1984.")
......................................................
At pp684–685
"Anyway in July of 1984 your Board recognised that the way of avoiding workmen rushing between funerals would be to provide a second set of props?.....Yes.
And you don't disagree with my suggestion that that didn't occur until late '85.....I can't disagree with it because I don't know the facts.
Now the reason that two men lifted that sleeper as a general rule between gravesites was, I take it, because it was too heavy for one person to lift?.....The reason that they lifted it between them would be to distribute the weight, yes.
Because it was too heavy for one man?.....I don't necessarily think that."
......................................................
At p717
"Well let me ask it again, because with respect I don't think you are answering it, and his Honour will no doubt rule on it. Between July of 1984 and August of 1984, you gave no direction to Mr McGinniss or Mr Short in that period that backfilling could be dispensed with if there was insufficient time?.....July of '84 and August of '84?
That's right.....Now I'm getting the drift. It was just a period of one month in which I'm supposed to have given that particular instruction. I'm not aware of the time or the dates on which I gave the instruction.
You didn't give any direction, specific direction, did you, that if there was an insufficiency of time two men should lift the sleeper rather than one man?.....I left it to the initiative of the men as to how they were to handle the equipment that was there."
In my opinion this evidence falls well short of establishing that either Mr Reeve or the respondent Trust was aware of any practice which may have been adopted by the appellant or Mr Short of carrying the sleeper alone, either as a matter of course or even from time to time.
Nor is there any reason apparent to me suggesting that the Trust should have been aware that any such practice was followed if indeed it was. It is necessary to keep reminding oneself that the evidence of these two witnesses was substantially rejected. I am therefore unpersuaded that the appellant should succeed on this basis.
In dealing with the learned trial judge's findings as to causation I have already dealt somewhat obliquely with the appellant's contention that his Honour was wrong in disallowing the allegedly expert evidence of Mr Haller–Griffits which it was proposed to call. Whether or not Mr Haller–Griffits would have given evidence in accordance with the report dated 29 September 1987 (included at pp193–194 of the exhibits in Volume III of the Appeal Book), or evidence of the kind referred to in the discussions between the learned trial judge and counsel at pp108–109 and pp582–589 of the transcript, it seems to me that insofar as that evidence consisted of opinion it was inadmissible. I am prepared to assume for present purposes that Mr Haller–Griffits is a man of considerable expertise in the area of mechanical engineering who may be able to give valuable evidence in an appropriate case as to the ways in which the laws of physics may apply to a variety of factual situations. But the proposed evidence was not related to such matters, nor indeed to any other field of science or organized learning in my opinion. His comments about the theoretical weight of hardwood was of the merest peripheral relevance in the circumstances of this case as there was evidence, on both sides, of the actual sleeper in question having been weighed by other witnesses. His proposition that hardwood is heavier than pine requires no expert evidence and is a matter of which I, for my part, would be prepared to take judicial notice. The rest of his proposed evidence appears to consist of historical narrative based upon hearsay and comments supportive of the allegations of negligence made by the appellant. To my mind none of these comments appears to be based upon scientific analysis or to have been derived from rules or principles emanating from an organised branch of specialised knowledge in respect of which a person may become qualified by study, or experience, or both, to give an opinion of an expert nature. See Clark v Ryan (1960) 103 CLR 486 and Pankelis v Frankcombe (1959-1995) 14 Tas R 174.
In any event, having regard to the content of the proposed evidence, there is nothing in it which could have made any conceivable difference to the conclusions reached by the learned trial judge or the conclusions which I have reached in considering the appeal. No doubt it is considered prudent to lead expert evidence if possible in any case involving allegations by a workman against his employer that the system of work which caused his injury was unsafe. Frequently such evidence will be indispensable if a plaintiff is to succeed. See Vozza v Tooth and Co Ltd (1965) 112 CLR 316. But this does not mean that a witness, albeit one with extensive experience in giving expert evidence in negligence cases, can be called upon to put propositions or points of view to the court which amount to no more than arguments or advocacy. Furthermore, in simple cases (for example Turner v South Australia (supra) and Australian Oil Refining Pty Ltd v Bourne (1979) 54 ALJR 192) there is no need for expert evidence to convince a court of the correctness of a meritorious plaintiff's claim.
In Bourne's case, the majority judgment cited with approval the observations of the New South Wales Court of Appeal that, "expert evidence is unnecessary to establish that a steel surface is more slippery when wet with water than when dry because friction is reduced, or that oil, a lubricant in everyday use, if added, will enhance the lubricating qualities of water when lying on steel. Judges drive on wet roads and walk on wet footpaths and the whole situation is familiar." It would require no expert to persuade me that in walking upon a sloping, uneven grass surface with patches of clay or mud one is much more likely to slip and fall than upon a level or dry surface.
The appellant also contended that the respondent was negligent in failing to provide "footwear more resistant to slipping and sliding". The evidence of Mr Reeve was to the effect that the appellant had been supplied with boots with steel capped toes of a kind which were standard issue to cemetery workers. No specific argument was addressed to us in this Court to persuade us that the boots supplied were inadequate. The boots in evidence (Exhibit P24) have a grooved sole which would appear to me to provide some additional traction in muddy conditions. It was suggested by the appellant's counsel that spiked boots should have been used in the conditions which existed at the time of the accident. There was no evidence to show that such boots were available or that their use was practicable in the circumstances or that they would have obviated the risk of slipping. No doubt it is possible to envisage boots with steel mountaineering cleats or football studs providing the appellant with a surer footing in the muddy conditions at the cemetery, but regard must also be had to the practicalities of using such footwear in the course of the whole spectrum of the appellant's daily work. This was an issue which was barely mentioned during the appeal and although it seems to have been given somewhat more prominence at the trial, I am not persuaded that the respondent was negligent in failing to provide boots of the type suggested.
In my opinion the appeal should be dismissed.
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