Podbrebersek v Australian Iron & Steel Pty Ltd

[1985] HCA 34

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan and Deane JJ.

FRANK PODREBERSEK v. AUSTRALIAN IRON AND STEEL PTY. LIMITED

29 May 1985

Decision

GIBBS C.J., MASON, WILSON, BRENNAN and DEANE JJ. The appellant was the plaintiff in an action brought in the Supreme Court of New South Wales against the respondent company for damages for personal injuries allegedly caused by the negligence of the respondent as long ago as 20 April 1969. On that date the appellant was employed by the respondent as a gas regulator and was engaged in cleaning gas pipes when an explosion of gas caused the injuries for which the appellant seeks damages. For the purpose of cleaning the pipes it was necessary to remove and clean metal pins, about 4 inches long, which intruded into the pipes. Each pin had at one end a screw which corresponded with the thread in a hole in the pipe. When the pin was properly screwed in, its cap closed off the hole in the pipe. There were many pins which had to be removed so that the cleaning operation was a substantial one. It was usual for the employees to unscrew and screw back the pins by finger pressure. At times, however, the accumulation of dirt or damage to the threads or a lack of matching of threads prevented pins from being screwed in for the necessary distance, which was three or four turns. The explosion was caused because a pin had fallen out and had allowed gas to escape. There was evidence from which it could be inferred that the appellant had used only his fingers to screw in the pin which subsequently fell out and caused the gas to escape, so that the pin went into the hole only to the extent of half a turn, whereas by using a spanner the pin could have been screwed in to the requisite distance of three or four turns. There was evidence that several years before the accident the appellant had been trained by a fellow workman, Mr Kalaitzakis, in the work involved in cleaning the pipes and was shown how to use a spanner, and, if necessary, a tool called a "tap", to screw home any pin that could not properly be screwed by finger pressure. The appellant gave evidence which conflicted with that of Mr Kalaitzakis and called a consulting engineer, Mr Osman, who said that it was not a safe practice to use tools to screw in the pins with a spanner, because that would cause damage to the thread and would tend to choke the thread so that the parts would appear to be firmly engaged when in fact they were not.

2. The jury found that the respondent had been guilty of negligence and the appellant of contributory negligence causing the accident. They assessed the damages at $35,000 and determined that the respective shares of responsibility for the damage were as to the respondent 10 per cent and as to the appellant 90 per cent. Accordingly judgment was given in favour of the plaintiff for $3,500. An appeal to the Court of Appeal was dismissed.

3. At the trial the appellant's case was that the respondent had been negligent in two respects, in that (a) it had failed to provide safe equipment, i.e., pins which could be screwed into the pipes for a safe and sufficient distance, and had in fact supplied pins some of which would go in for only half a turn and were, in that respect, unsafe; and (b) it had failed to provide a safe system of work because the appellant was not instructed that when pins could not be satisfactorily screwed in by finger pressure a tool should be used to screw them in further. The respondent's case was that the appellant was guilty of contributory negligence in that he had failed properly to screw in the particular pin which in fact fell out of the pipe. The manner in which the jury apportioned the damages suggested to the Court of Appeal that the jury must have accepted the evidence of Mr Kalaitzakis and could not have been satisfied that the respondent had failed to provide a safe system of work in the manner alleged at the trial. In other words, the only negligence found by the jury was the failure of the respondent to provide pins which fitted more easily. Counsel for the appellant before us could not challenge that conclusion reached by the Court of Appeal.

4. It was submitted on behalf of the appellant that the finding of the jury that the appellant was guilty of contributory negligence was against the evidence and the weight of the evidence, and further that the Court of Appeal had erred in declining to hold that the jury's finding that the damages recoverable by the appellant ought to be reduced by 90 per cent by reason of his contributory negligence was against the evidence and the weight of the evidence.

5. The first of these submissions took as its starting point the judgment of this Court in McLean v. Tedman (1984) 58 ALJR 541, at p 545; 56 ALR 359, at pp 365-366. It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent had failed to discharge its obligation to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence. The failure on the part of the respondent to provide pins that could be screwed by hand for the requisite number of turns could result in danger to an employee only if he failed to ensure that a pin was properly screwed in. The appellant in the course of his evidence gave answers which could have satisfied the jury that he knew at the relevant time both that the pin had been screwed in only half a turn or "only a little bit stuck in" and that it was "very bad" to put in a pin with "only a little bit of a turn" since a pin so installed might fall out, and that about three turns were necessary to ensure that a pin stayed in position. They were entitled to prefer the evidence of Mr Kalaitzakis to that of the appellant and Mr Osman and to draw the conclusion that it was reasonably practicable to ensure that the pin could be screwed in far enough by the use of a spanner or "tap", and that the appellant knew this. Indeed, it should have been obvious to any gas regulator of the appellant's experience - perhaps to anyone of ordinary commonsense - that the use of a tool might assist to turn the pin. It was also obvious that it was dangerous to leave a pin so inadequately screwed in that it might fall out and allow gas to escape. On the evidence the jury were clearly entitled to find contributory negligence.

6. With regard to the apportionment of responsibility, a comparison was made in argument between the position of the respondent - a large company thought to be possessed of sophisticated skills and resources - and the appellant. It was submitted on behalf of the appellant that the respondent's breach of duty meant that it was foreseeable that some pins would fall out and allow gas to escape, thus exposing the appellant and other employees to the danger of an explosion and the risk of death or serious injury. On the other hand, it was said that the sole fault of the appellant was to neglect the instruction given to him by Mr Kalaitzakis. It was further submitted that there was no evidence that any directions had been given by the respondent to the appellant as to the manner in which he should do his work or that there was any established practice about the manner of screwing in the pins. That submission however ignores the fact that the jury may properly have inferred that the instruction given by Mr Kalaitzakis was part of the training arranged by the respondent for its employee, and is inconsistent with the concession that the jury must have found against the appellant on the second head of negligence alleged.

7. The jury may well have considered that the pins were unsafe only if the proper steps were not taken to ensure that they were screwed in to the requisite extent and that if the advice given to the appellant by Mr Kalaitzakis had been followed the injury would have been avoided. The learned members of the Court of Appeal said in their judgment:

"They (the jury) might have regarded the defendant's fault as simply one which more often required the use of the spanner and thence raised the chance of error in fitting, but that compared with this the fault of the plaintiff was very much greater in just leaving in position a pin known to be screwed in only half a turn which he knew was a bad job and must have known was unsafe and in disregard of instructions."

We respectfully agree.

8. A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners) (1943) AC 197, at p 201. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury: Zoukra v. Lowenstern (1958) VR 594. In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.

9. Finally, it was submitted that the learned trial judge had failed to instruct the jury fully and adequately as to the principles of law to be applied in determining the apportionment of damages. The learned judge summed up to the jury at considerable length on the questions of negligence and contributory negligence. When he came to the question of apportionment he dealt with the matter quite shortly; he simply instructed the jury that they should reduce the appellant's damages to such an extent as they considered just and equitable, having regard to the appellant's responsibility for the damage.

10. The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas.SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.

11. It may be accepted that the direction given by the learned trial judge to the jury on the question of apportionment was deficient. Even on that assumption however, a new trial should not be ordered. In the first place no attempt was made by counsel for the appellant at the trial to seek further directions on this point: indeed the suggested deficiency in the summing up, which was not mentioned in the notice of appeal to the Court of Appeal, would appear not to have been raised until some 4.1/2 years afterwards when leave to rely on the point was given on the actual hearing of the appeal to that Court. The learned members of the Court of Appeal suggested that counsel's failure to seek a further direction "was based upon a tactical judgment that it would not advance his client's interests to have the relative defaults of the parties discussed by the judge at any greater length". Before us it was submitted that there was nothing to support the view that counsel had made a tactical judgment of that kind. However that may be, it is unlikely in the circumstances of the case and its conduct that an invitation to the jury to compare the extent to which the acts of the parties had contributed to cause the damage would have benefited the appellant. Further, the proceedings have been characterized by delay of a kind which one hopes is extraordinary and for which no adequate explanation has been suggested. In the Court of Appeal the comment was made that between 1974 and 1978 the prosecution of the appellant's appeal was extremely dilatory and had provoked two applications to strike it out for want of prosecution. The Court of Appeal gave its judgment on 15 September 1978 and since that time further gross delay has occurred in prosecuting this appeal. It is true, as counsel for the appellant pointed out, that the respondent called no evidence at the trial. It was further submitted that there is nothing to show that the respondent would suffer prejudice if a new trial were had. However it was said that the exhibits at the trial have since been lost and it is by no means certain that they can be replaced. There is in any case inevitable prejudice to a party forced to defend an issue arising out of events that occurred more than sixteen years before the trial. It has not been shown that the Court of Appeal wrongly exercised its discretion in refusing to grant a new trial, and the further delay since the Court of Appeal gave its decision provides an additional reason why this Court should not interfere.

12. Mr Brownie has put before us very clearly everything that could be said on behalf of the appellant but the appeal must be dismissed.

Orders

Appeal dismissed with costs.