Menzie v Les Walkden Enterprises Pty Ltd
[2000] TASSC 150
•30 October 2000
[2000] TASSC 150
CITATION: Menzie v Les Walkden Enterprises Pty Ltd [2000] TASSC 150
PARTIES: MENZIE, Mark James
v
LES WALKDEN ENTERPRISES PTY LTD
ACN 076 400 493 T/A
LES WALKDEN TIMBER HARVESTING
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1284/1998
DELIVERED ON: 30 October 2000
DELIVERED AT: Hobart
HEARING DATES: 17, 18 October 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Statutes - Acts of Parliament - Enforcement of statutory rights and remedies - In general - Statutory duty expressed to be more onerous than common law duty of employer.
Workplace Health and Safety Act 1995 (Tas), s9(1)(a) and (c).
Aust Dig Statutes [107]
Employment Law - The contract of service and rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Supervision and instruction - Experienced and capable employee does not relieve employer of duty to supervise and instruct.
Wyong Shire Council v Shirt (1980) 146 CLR 40; Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301; McLean v Tedman (1984) 155 CLR 306, applied.
Aust Dig Employment Law [34]
REPRESENTATION:
Counsel:
Plaintiff: K E Read and B C Hilliard
Defendant: D J Gunson
Solicitors:
Plaintiff: Watling Roche Lawyers
Defendant: Gunson Pickard & Hann
Judgment Number: [2000] TASSC 150
Number of Paragraphs: 55
Serial No 150/2000
File No 1284/1998
MARK JAMES MENZIE v LES WALKDEN ENTERPRISES PTY LTD
ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING
REASONS FOR JUDGMENT UNDERWOOD J
30 0ctober 2000
The plaintiff brought this action against the defendant, his employer, to recover damages for an injury he sustained on 19 May 1997. By an order of this Court dated 2 August 1999, the only issues presently for determination are whether the defendant is liable to pay damages and, if yes, whether the plaintiff contributed to his loss, injury and damage by reason of his failure to take appropriate steps to avoid exposing himself to a reasonably foreseeable risk of injury. The statement of claim pleads a breach of the employer's common law duty of care owed to employees and a breach of the Workplace Health and Safety Act 1995 ("the Act"), s9(1)(a) and (c).
At the date of the accident, the plaintiff was aged 29 years. After completing year 10 at New Norfolk High School, he got a job splitting pulp at Australian Newsprint Mills. In 1991, he started work as a tree faller and since then has worked continuously in that occupation. He commenced work with the defendant on 12 January 1994. At the time of the accident, the plaintiff was licensed to fall old growth mixed species and new growth. The evidence was clear that by the time of the accident the plaintiff was a very competent and experienced tree faller.
The accident occurred while the plaintiff was felling trees for the defendant in a coup in the Styx Valley, known as Eagle Spur. He was alone at the time of the accident. The plaintiff's "bush boss" was then a Mr Anthony Young, another employer of the defendant. The plaintiff was well known to Mr Young because prior to joining the defendant, Mr Young had conducted his own business and immediately prior to the plaintiff starting work with the defendant in 1994, Mr Young had employed him.
The account of the accident given in evidence by the plaintiff was at variance with the account that was set out in his workers compensation form and might be thought to be at variance with the account he gave to Mr Young after the accident. I shall deal with these differences in due course.
According to the plaintiff's evidence, on the day of the accident he was preparing to cut the end off the butt of a tree that he had earlier fallen because it was rotten and fire damaged. The area of the fallen log into which it was proposed to make the cut was over a hole, or dip in the ground, which prevented the plaintiff from firmly planting his feet in a stable position whilst using the chainsaw. A green branch was pinned under the fallen log. This branch protruded roughly at right angles to the log and over the hole or dip in the ground. The branch was about as thick as the plaintiff's forearm. In order to make the cut, the plaintiff said that he put his right foot on the branch and his left foot on the edge of the dip in the ground. He said he then commenced to cut off the butt. When he was just about to pull the chainsaw out of the log, his right foot slipped down the branch and twisted over. The injury did not appear to be serious at the time and the plaintiff continued to work that day.
In order to give the injured ankle a rest the next day, he worked on the skidder. However, it did not improve and the plaintiff saw his medical practitioner in the afternoon. He was given a certificate that he was unfit for work for seven days. No further evidence was led with respect to the nature and extent of the plaintiff's injury and subsequent disability, but I saw that when giving his evidence the plaintiff wore a knee splint of some kind and walked with an awkward gait.
At the time of the accident, the plaintiff was wearing rubber soled work boots. The rubber sole was moulded into grooves to provide traction. The plaintiff claimed that the accident would not have happened if he had been wearing spiked boots. A pair of spiked boots that are worn by fallers was tendered in evidence. The whole of the under surface of each sole is covered with 21 short metal spikes, similar to those attached to the soles of cricket shoes. The plaintiff claimed that had he been wearing spiked boots instead of rubber soled boots, his right foot would not have slipped along the branch.
In essence, the plaintiff's case against the defendant is that the defendant, by its agent, Mr Young, knew or ought to have known that he was working in rubber soled boots and, accordingly, Mr Young should have either:
· told him not to work unless he was wearing spiked boots; or
· inquired of him with respect to the efficacy of working with rubber soled boots and had he done so he would have been told by the plaintiff that he was slipping and, accordingly, his obligation would have been to have told the plaintiff not to work without spiked boots.
In essence, the defendant's case was that the choice of footwear in any given location was a matter for the plaintiff as he was an experienced and competent bushman and there was no obligation on the employer as contended on behalf of the plaintiff.
Mr Young said that some time prior to 13 May 1997, he noticed that the plaintiff was wearing a pair of spiked boots that were in very poor condition. He said that the sole of one boot was coming away from the upper, just behind the toe cap on the inside of that boot and "they were a bit scarce on spikes". It was common ground that the plaintiff was then wearing worn out spiked boots. The plaintiff agreed that this was the case. The plaintiff said that he had tried to buy a replacement pair, but as none were immediately available, he had ordered a pair. He said that they had not arrived by the date of the accident on 19 May 1997.
There was a difference between the evidence of the plaintiff and that given by Mr Young as to the exact nature and extent of the deterioration of the boots, but that difference is immaterial as it was common ground that the condition of the plaintiff's spiked boots was such that by wearing them, he was at risk of injuring himself, probably by a stick entering through the hole and perhaps tripping him up. Mr Young says that he spoke to the plaintiff about his boots on one or two occasions. The plaintiff denied that Mr Young had so spoken to him, but I accept Mr Young's evidence on this matter for a reason that will become apparent shortly.
On 13 May 1997, a Mr Geeves went to the Styx Valley to visit another coup being logged by the defendant. Mr Geeves was and is a senior inspector with the Workplace Standards Authority. He is an experienced bush worker who has been with the Authority or its predecessor since 1986. He was a careful and articulate witness. He made it clear when he was giving his evidence after refreshing his memory from contemporaneous notes and when he was giving his evidence from his recollection. I accept the entirety of Mr Geeves' evidence. There was no submission that I should not.
The purpose of Mr Geeves' visit to the Styx Valley on 13 May 1997 was to inspect the safety of the cable logging operation then in progress there. Whilst there, Mr Geeves spoke to Mr Young. As Mr Geeves was leaving the cable operation, Mr Young asked Mr Geeves to call in to the nearby Eagle Spur coup and have a look at the footwear the plaintiff was wearing, as he, Mr Young, did not think it was up to an acceptable standard. Mr Geeves did as he was asked. The plaintiff did not dispute that Mr Geeves came and spoke to him about his footwear on the afternoon of 13 May 1997. As this visit took place at Mr Young's request and as it was common ground that the plaintiff's footwear was not up to standard, the probabilities are extremely high that Mr Young did speak to the plaintiff about his boots before he asked Mr Geeves to check on them on his way home on 13 May 1997.
Mr Geeves said that he inspected the plaintiff's work practices and nothing adverse was noted. With respect to the boots, he said:
"The left boot, the upper was coming away from the sole and I could see part of the sock that [the plaintiff] was wearing on his left foot through the hole in the side of the boot."
Mr Geeves said that the plaintiff's footwear put him at risk of injury and he told him to leave the site forthwith and not to return until he had suitable footwear. The plaintiff left in accordance with the direction.
In his evidence, the plaintiff agreed with the foregoing account given by Mr Geeves. The plaintiff said that before he left the work site at Mr Geeves' direction, he told Mr Geeves that he had a new pair of spiked boots on order and that the only other pair of boots he had available were rubber soled. The plaintiff said that there was a discussion between them with respect to the retail outlets that sold spiked boots and that Mr Geeves gave him the name of a retailer who had just started out in the business, one Lisa Scott. The plaintiff said that Mr Geeves suggested that he wear his rubber soled boots until he could get a new pair.
Mr Geeves confirmed that there was a discussion between him and the plaintiff on 13 May 1997, generally as described by the plaintiff in his evidence. With respect to the plaintiff wearing his rubber soled boots to work until he could get hold of a new pair of spiked boots, Mr Geeves said:
"I believe I might have commented that for a short period of time he could wear rubber soled boots and I could comment to that effect because there was no legislative requirement requiring the use of sprigged boots to be worn by fallers on ground based operations."
I find that on 13 May 1997:
· the plaintiff was wearing spiked boots whilst working as a faller at Eagle Spur in the Styx Valley;
· the boots were so worn that in wearing them in the workplace, the plaintiff was exposed to the risk of injury;
· the plaintiff was well aware of that state of affairs and chose to take the risk of incurring that injury;
· he was ordered to stop work by Mr Geeves and did so;
· Mr Geeves assented to the proposition that the plaintiff could return to work as a faller in the same coup wearing rubber soled boots until he was able to obtain a new pair of spiked boots.
The next day, 14 May 1997, the plaintiff did return to work at Eagle Spur wearing his rubber soled boots. He continued to work in those boots until the accident occurred on 19 May 1997.
The plaintiff said that immediately following Mr Geeves' visit, he tried various outlets to get a pair of spiked boots to fit him, but was unsuccessful. He ordered a pair from Lisa Scott and was told by her that he would receive them in a week's time.
The plaintiff said that on the evening of 13 May 1997, he telephoned Mr Young from his home and told him about Mr Geeves' visit and that he would be unable to procure a new pair of spiked boots for a week. The plaintiff said that Mr Young told him "I was still to go back to work the next day with rubber soled boots". The plaintiff said that Mr Young "told me to wear rubber soled boots".
Mr Young says there was no such telephone conversation between him and the plaintiff on the evening of the day of Mr Geeves' visit to the Styx Valley. I accept Mr Young's evidence in preference to that given by the plaintiff with respect to this issue. Although Mr Young conceded that he would make and receive a number of phone calls most evenings, and that he could not now remember most of them, he was unshaken in his evidence that the plaintiff did not phone him on this particular day. More importantly, according to the plaintiff's evidence, he left the work site that day in accordance with Mr Geeves' direction with the intention, and as he understood it, Mr Geeves' blessing, of returning to work the next day in his rubber soled boots. The plaintiff's account that Mr Young directed him on the phone that evening to return to work in rubber soled boots is unlikely, having regard to his intention to do so whether or not Mr Young said anything at all about the matter. Indeed, having regard to that intention formed by the plaintiff, there was no necessity for him to phone Mr Young at all that evening.
Accordingly, I find that between 13 May 1997 and 19 May 1997:
· the plaintiff made the decision to wear rubber soled boots at work;
· in doing so, the plaintiff knew that the risk of him slipping on green timber and wet undergrowth was thereby increased over that to which he would have been exposed had he been wearing spiked boots;
· the defendant was unaware that the plaintiff was wearing rubber soled boots and not spiked boots until after the occurrence of the accident.
The plaintiff said that on the days between 14 May and 19 May, he slipped several times whilst doing his work, but suffered no injury.
Mr Young said that he knew nothing about the accident until the day after it had happened. Mr Young said that on 20 May 1997, he went to Eagle Spur. The plaintiff came out of the bush and told him that he had slipped off a log the day before and hurt his ankle. Mr Young said that the plaintiff told him that he did not think it was a serious injury, but he would give his ankle a rest by working on the skidder for the rest of the day. Mr Young said that inspection of the work records show that the plaintiff worked on the skidder on 20 May 1997. The plaintiff was unable to recall when he first told Mr Young of his accident and I accept Mr Young's evidence with respect to this matter.
With respect to how the accident occurred, I accept the plaintiff's evidence. As his senior counsel observed in his closing submissions, the plaintiff appeared to give his evidence in a straightforward manner and on occasions, readily gave answers to questions that were, or might well clearly appear to have been, against his interests. The plaintiff gave a demonstration in the Court of how the accident happened and it seemed to me therefrom that the plaintiff was clearly re-enacting an event that actually occurred and not making one up.
Mr Young said that "The conversation that I recall [the plaintiff] just said that he’d slipped off a log and twisted his ankle." Mr Young did not claim that he was giving a verbatim account of what the plaintiff told him the day after the accident, and having regard to what was then perceived to have been a trivial injury, I see no inconsistency between Mr Young's evidence of what the plaintiff said to him with respect to how the accident happened and the plaintiff's evidence of how the accident happened.
However, the workers compensation form completed by the plaintiff's wife at the plaintiff's direction contained an inaccurate account of how the accident happened. The completed form relevantly provided:
"Walking through bush and slipped on a limb."
The plaintiff's explanation for putting that account on the workers compensation form appears from this passage taken from his cross-examination:
Why? What was the explanation? ... Because I knew that I wasn't supposed to be wearing rubber soled boots, and I thought that myself, and Les Walkden may have got into trouble by the insurance company because I didn't have my spiked boots on.
Now why might you have got in trouble with the insurance company? … Because I had to wear spiked boots.
Because you' d been told by Mr Geeves? Is that right? ... No audible reply.
Where was the requirement to wear spiked boots? Who told you to wear spiked boots? ... In the Styx Valley it's compulsory.
Who told you that it was compulsory to wear spiked boots in the Styx Valley? ... The fellow that took me for my faller's licence training from Tas Training Forestry Board.
He told you it was compulsory to wear spiked boots in the Styx Valley, did he? ... Yes."
There is no reason to doubt that explanation. Mr Geeves' evidence was that it was not compulsory in the sense that it was not required by law to wear spiked boots in the Styx Valley and for that reason he assented to the proposition that the plaintiff could continue to work in rubber soled boots, although, as will be seen shortly, Mr Geeves thought it would have been preferable in this case if it had been compulsory for the plaintiff to wear spiked boots. There is no inconsistency between Mr Geeves' evidence about what passed between him and the plaintiff on 13 May 1997 and the plaintiff's explanation for the false account of the accident given in the workers compensation claim form for he might well have thought that Mr Geeves was "relaxing" or "bending" the compulsory requirement to wear spiked boots, having regard to the circumstances in which the plaintiff then found himself.
There was some conflict in the evidence about the terrain in which the plaintiff was working on the day of his accident. Evidence on this issue was given by the plaintiff, another tree faller called on behalf of the plaintiff, Mr Lovell, Mr Geeves and Mr Young.
There was a conflict in the evidence as to whether Eagle Spur was to be logged by cable or by skidder, but there is no need to go into the evidence about all of that in detail as it was common ground that up until the time of the accident the logs that the plaintiff cut were extracted by a skidder.
It was common ground that the need to wear spiked boots, instead of rubber soled boots, depended upon the environment in which the work was being done. The plaintiff described Eagle Spur in these general terms:
"It's mostly virgin bush, it's never been logged before. There is lots of limbs. A lot of undergrowth. The ground is muddy ¾ wet. Mossy, with moss on bits of limb and growing in the ground. And to get as much traction on your feet as you possibly could, with spike boots."
The plaintiff did not agree that the area in which he suffered his accident was "reasonably flat" but did later agree that the accident happened on a "slightly sloping" section of the coup. He said that the ground cover consisted of wet bracken ferns, cutting grass and pampas grass.
Mr Lovell is an experienced tree faller. In May 1997, he was cable logging for the defendant. He said that he knew where the plaintiff was working at the time of the accident and it was "out to the front of a coup called Diogenes". He described the terrain as "… very rugged, a lot of holes in it, a lot of sink holes, a lot of cutting rushes". Mr Lovell said it was very hard to get around. He said that he would not work in the Styx Valley without spiked boots.
I find that I am unable to place any reliance upon this evidence of Mr Lovell. Mr Young's uncontradicted evidence was that the Diogenes coup was not opened until about two years after the plaintiff's accident.
Mr Young said that the western side of Eagle Spur was "all flat", but that it was very steep on the eastern side. He said that after the accident, only the eastern side of the coup was logged by cable. From Mr Young's re-examination, I find that the plaintiff started work at Eagle Spur in the week ending 11 April 1997. I also find that he began work there on the eastern side clearing the way for cables which were later installed. I further find that by the time the accident occurred, the plaintiff had worked his way back to the western side, an area that was not sufficiently steep to later require the removal of logs by cable.
Mr Young said that when he visited Eagle Spur on 20 May 1997, he noticed that the plaintiff was wearing rubber soled boots and said that "The ground conditions in my opinion suited the boots". He said that the floor of the western side of the coup was mainly cutting grass.
In general terms, Mr Young's description of the Eagle Spur coup was confirmed by Mr Geeves. Mr Geeves said that the area in which the plaintiff was working was "reasonably flat". He added that it dropped off "… fairly steep down towards the bottom side of it". I so find. I also find that under foot was cutting grass and pampas grass and, of course, branches and limbs that had broken off, either naturally or as part of the felling operation. It was common ground that a stable balanced stance was necessary for the safe operation of a chainsaw in the bush and that it was dangerous to put a foot on a green limb whilst using a chainsaw, as did the plaintiff, because the events that in fact occurred, were a well known and well recognised risk. I find that spiked boots substantially reduced this risk. That was not disputed. It is an obvious matter of common sense.
I now set out a critical passage taken from the cross-examination of Mr Geeves:
"Mr Geeves the instruction that you gave to Mr Menzie that was in effect that he could wear rubber soled boots in the short term. Is that - is that fair? ... I believe that is, yes, because I had no legislative authority to say that he couldn't.
Yes. Now, it's that reasoning that I want to examine. You would accept the proposition that spiked boots are safer for a faller to wear, than rubber soled boots? ... Especially if they've gotta work on slash or bracken, or whatever, that's laying on the ground, because it can be very slippery, yes.
And the Styx Valley area that you went to, although flat, certainly accorded with that description? ... .Oh yes. There was undergrowth there that the faller would have had to walked on at times that was laying on the ground, yes.
So, is it -
HIS HONOUR: What sort of undergrowth was it again, Mr Geeves?
WITNESS: It could be small sticks, small saplings, and so forth, your Honour, that could vary in size from fairly small up to limbs of trees when he's moving from one area to another, or from one tree to another.
Is it fair to say this, that you would have preferred to say to Mr Menzie 'Don't come back until you've got suitable spiked boots' but you were constrained by a lack of legislative power in saying that? ... Yes, your Honour. In this particular case, yes.
Why is that?…Because at that stage there was no regulation specifically stating that sprig boots, or spiked boots, had to be worn by fallers on a ground based operation. However, the Tasmanian Logging Code has a specification in there for fallers to wear sprig boots because of the steep terrain it works in. However, had I considered it to be a life threatening matter, I then could have used my powers in my opinion under Section 38 of the Workplace Health and Safety Act, to direct Mr Menzie to wear spiked boots.
So on that day where you found Mr Menzie it was something falling short of life threatening? ... In my opinion, yes, it was.
But nonetheless, the wearing of rubber soled boots by Mr Menzie there increased the risk of injury to him to a level, albeit falling short of life threatening? … I believe so, yes, your Honour."
I accept that evidence given by Mr Geeves.
Mr Read submitted that in the event of the findings of fact being made that I have made, the defendant was in breach of an employer's common law duty owed to employees and/or in breach of the statutory duty relied upon and therefore liable to pay damages for loss and injury sustained in consequence of the accident on 19 May 1997.
The Act, s9(1)(a) and (c) provides:
"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must ¾
(a) provide and maintain so far as is reasonably practicable ¾
(i)a safe working environment; and
(ii)safe systems of work; and
(iii)plant and substances in a safe condition; and
…
(c) provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health.
Penalty:
In the case of ¾
(a) a body corporate, a fine not exceeding 1 500 penalty units; or"
Mr Read submitted that in the event of me finding, as I have done, that Mr Young was not told by the plaintiff on the evening of 13 May 1997 that he was proposing to wear rubber soled boots in the bush, the defendant ought to have made inquiry of the plaintiff between 13 May 1997 and 19 May 1997 to find out what footwear he was using. He further submitted that had the defendant done this, it would have learned that the plaintiff was wearing rubber soled boots, and upon learning this the defendant should have told the plaintiff to stop work until he was wearing spiked boots. In the alternative, Mr Read submitted that the defendant should have made enquiry to find out if the rubber soled boots gave sufficient traction and, had it done so, it would have learned that the plaintiff was slipping as he worked in the bush and, accordingly, the defendant should have directed the plaintiff to stop work until he was wearing spiked boots.
There is no doubt that it was reasonably foreseeable that the wearing of rubber soled boots on the day of the accident exposed the plaintiff to the risk of suffering an injury of the kind he suffered. Mr D Gunson, counsel for the defendant, did not submit to the contrary. Indeed, the logging industry is such a hazardous one that merely engaging in it makes injury reasonably foreseeable.
Whether or not there has been a breach of the duty of care falls to be determined in accordance with the following classic passage taken from the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In the case of experienced and competent employees such as the plaintiff, a prudent employer would realise that such employees might well act in breach of the ordinary safety rules, notwithstanding their knowledge that to do so, exposed them to the risk of injury. Indeed, experience has shown that familiarity with the workplace often leads to a failure to maintain appropriate safety standards. Mr Geeves gave evidence that this had been his experience over the years that he had acted as an inspector in the forest industry. A prudent employer would realise that misjudgements and inattention are common in the work place. See Ferraloro v Preston Timber (1982) 56 ALJR 872; Kulczycki v Melatex [1995] 2 VR 377. The duty on the employer is particularly high in a workplace where the nature of the work is such that the employee is constantly exposed to the risk of injury unless continual care is taken.
In McLean v Tedman (1984) 155 CLR 306, the Court said, at 313:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer; see Fleming, Law of Torts, 6th ed (1983), pp 480 - 481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
In Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301, Mason J (as he then was), Wilson and Dawson JJ said at 309:
"What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v Tedman at p 313:
'Accident prevention is unquestionably one of the modern responsibilities of an employer'.
However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337, at pp 342-343; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, at p 218."
In the present case, the magnitude of the risk of injury and the degree of probability of its occurrence were relatively high and, by comparison, the expense, difficulty and inconvenience of taking alleviating action was small in that provision of a pair of spiked boots or cessation of work until such a pair of boots had been provided, was the only alleviating action required to be taken.
The requirement imposed by the Act, s9(1)(a) is governed by the words "so far as is reasonably practicable" and is a statutory expression of the duty of an employer imposed by the common law. The Act, s9(1)(c) imposes an obligation to provide instruction, training and so forth that is reasonably necessary. Thus, the latter statutory obligation is unfettered by what is reasonably practicable, ie, the competing considerations expressed by Mason J in Wyong Shire Council v Shirt (supra). However, upon the facts of this case, those competing considerations are of no significance and I see no real distinction between the conditions for liability to pay damages imposed by the statute and those imposed by the common law.
The defendant, by its agent, Mr Young, knew that the plaintiff was a worker who was prepared to work in the bush wearing worn out footwear that, to the plaintiff's knowledge, exposed him to the risk of injury. The fact that Mr Young asked Mr Geeves to check on the plaintiff's footwear leads me to conclude that on 13 May 1997, Mr Young was far from satisfied that the plaintiff had heeded his earlier admonition to replace his boots as they were dangerous. In the light of this knowledge, the defendant clearly had an obligation to ensure that the plaintiff was wearing appropriate footwear on and before the day he was injured. The only step taken by Mr Young to discharge this obligation was to ask Mr Geeves to call upon the plaintiff. Mr Young was unaware whether or not Mr Geeves had done as he had asked him and between 13 and 20 May was unaware of what the plaintiff was wearing on his feet. A prudent employer would have called on the plaintiff as he was working at Eagle Spur within a day or two of Mr Geeves' visit to ensure that the plaintiff was wearing boots that did not expose him to risk of harm. This the defendant did not do, but this failure will not visit it with liability unless a prudent employer would have not only visited the plaintiff, but also told him not to work in anything other than spiked boots, or alternatively, enquired about the traction given by the rubber soled boots and if told that they were slipping, then prohibited the continuation of work while wearing such boots.
Mr Young's evidence was that he considered the ground conditions suited rubber soled boots. That evidence is at variance with the evidence of Mr Geeves that I have set out, and for the reasons I have given, I accept the evidence of the latter. Mr Geeves was the embodiment of a prudent employer. But for the fact that his only powers over the plaintiff were those contained in the relevant legislation, Mr Geeves would have told the plaintiff on 13 May 1997 that he was not to work in the place he was working unless he was wearing spiked boots. Accordingly, the failure of the defendant to visit Eagle Spur until after the accident, a step that would have been taken by a prudent employer, and the consequential failure to make the plaintiff stop work until he was wearing spiked boots, another step that would have been taken by a prudent employer, was a breach of the duty of care owed by the defendant to the plaintiff both at common law and by statute, which breach was, for the reasons given earlier, causative of the loss, injury and damage suffered as a result of the slipping accident on 19 May 1997.
Clearly, the plaintiff was guilty of contributory negligence. He was, as he said in his cross-examination many times, well aware of the risk of slipping in positioning himself, as he did, with a foot on a branch whilst wearing rubber soled boots. He agreed with Mr Gunson that he simply took the risk in the same way as he took the risk of injuring himself by wearing his worn out spiked boots before Mr Geeves told him to leave the workplace. Although, for the reasons I have given, this conduct on the part of the plaintiff does not mean that the defendant was not in breach of the duty of care that it owed the plaintiff, the latter must bear a substantial portion of the responsibility for his loss, injury and damage. Bearing in mind that there was an employer/employee relationship, I assess the plaintiff's contributory negligence at 33 per cent.
There will be judgment for the plaintiff against the defendant for damages to be assessed, such damages to be reduced by 33 per cent.
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