Roberts v State of Queensland

[1992] QCA 27

STATE REPORTING BUREAU

TRANSCRIPT OF PROCEEDINGS

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[1992] QCA 027

COURT OF APPEAL

MACROSSAN CJ McPHERSON JA DAVIES JA

NO 53 OF 1991

NIGEL LLOYD ROBERTS

Respondent

and

STATE OF QUEENSLAND

Appellant

BRISBANE

... DATE 13/1/92

.. DAY 1

JUDGMENT
THE CHIEF JUSTICE: We don't need to hear from you, Mr Reid.

I shall give some reasons for my view and the reasons and the judgment of the court, which the Court then gives, will be transcribed.

The present appeal in form is against findings of negligence and in respect of findings which the Judge made concerning responsibility of the respective parties to the accident: that is the plaintiff on the one hand and the State of Queensland by its servants on the other.

The appeal is not concerned with any question of quantum of damages.

The defendant was found liable in the suit because of the actions of its agents; persons responsible for procedures adopted at the Bundamba TAFE College.

The finding was that the failure which had occurred, being a failure to instruct the plaintiff on a relevant danger, was negligent.

The findings led also to the conclusion that the plaintiff
himself was not guilty of any contributory negligence.
The plaintiff was a 16-year-old student receiving training in
carpentry and cabinet-making at the TAFE College. He suffered
an injury to his right hand when he was passing a piece of
timber through a machine called a surface planer.
The accident happened in the machine shop when the plaintiff
was operating the machine alone and unsupervised. The
evidence of the defendant's witnesses was to the effect that
the plaintiff should not have been doing what he was doing
unsupervised and that he had been warned of the relevant
dangers involved in the use of the machine.

The plaintiff said that he had received an instruction, or had been given permission to use the machine on the day in question and although he had received some warning on the dangers of it he had not been told anything which was effective to protect him in the circumstances which arose.

The piece of work which the plaintiff was engaged on in the course of his training and in which he was occupying himself with one other student was a piece of furniture which needed adjustment and the plaintiff said that he was told by his instructor to take the item into the machine shop and plane it on the surface planer, checking the depth of cut before using the machine.

The evidence of the plaintiff's fellow student gave support to the version that the two students were told to go to the machine shop and check the planer to see how much, with its then state of adjustment, it was planing from items fed through it. The evidence of a teacher to whom the plaintiff spoke about his problem with the piece of work on the day was to this effect - that he would show the plaintiff how to use the planer at an appropriate time. This teacher and two others claimed that unsupervised use of the planing machine was not permitted. The trial Judge had to resolve this conflict of testimony of the witnesses. He said that he was assisted in this task by the further evidence of the industrial inspector whose investigations of procedures in place at the time pointed to the likelihood of students of some experience such as the plaintiff being permitted to use the machine unsupervised.

His Honour did refer to an inference drawn by this person and some little point was made of the use of such an "inference" in argument although it then emerged that the inference in question came out in the course of cross-examination by counsel for the defendant at the trial. In any event no point is taken on the use of it in the notice of appeal.

His Honour, as I say, declared himself assisted to some extent by this evidence. In any case the trial Judge with all of the usual advantages associated with his position accepted the evidence of the plaintiff on relevant points and there is no reason to upset his assessment. The issue was fundamentally one of credibility. An observation along the same lines applies to the plaintiff's evidence that although he had been warned about the danger of using short pieces of timber on the machine he took the warning to relate to dangers involved in passing a piece of timber right through the machine with the implication that has for the position of the operator's hands in relation to the cutting section of the machine. He did not take it to refer to the danger in different circumstances of a small test piece of timber rocking forward and kicking back and endangering the operator's hands, as occurred in this case. The Judge has accepted the explanation given by the plaintiff, of his understanding of the warning and the reasonableness of the belief entertained by the plaintiff who was, as I have indicated, a young student. The plaintiff had, the Judge obviously felt - and he was justified in this finding - been given an explanation which was less than full.

In fact the use of a short peace of timber, even to test cutting adjustment, was dangerous because of the tendency of the machine to cause a rocking and kicking, as I have already said.

The effect of the events was then, as the Judge held, that the accident was generally foreseeable and the warning was inadequate. These findings, in my opinion, were justified on the evidence and because of the trial Judge's advantages on such issues of credibility they should not be disturbed. It was only a justified finding that the defendant's servants had been guilty of negligence, but similarly in the circumstances that I have outlined and so found below, the further finding was justified that there should be no conclusion of contributory negligence against the plaintiff. I would accordingly dismiss the appeal.

McPHERSON JA: I agree with the reasons given by the Chief Justice for dismissing the appeal and I would dismiss the appeal.

DAVIES JA: I agree.
MR REID: Your Honour, I ask for the costs -----

THE CHIEF JUSTICE: you do not want to say anything about this, Mr Smith, do you?

MR SMITH: I can't argue against that.

THE CHIEF JUSTICE: The appeal is dismissed with costs.

MR REID:  Thank you, Your Honours.

THE COURT ADJOURNED AT 3.30 P.M.