Schrader, Gordon Patrick John v Tas Pallets Pty Ltd
[1998] TASSC 79
•1 July 1998
79/1998
PARTIES: SCHRADER, Gordon Patrick John
v
TAS PALLETS PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NOS: 145/1995
DELIVERED: 1 July 1998
HEARING DATES: 6, 7 May 1998
JUDGMENT OF: Wright J
CATCHWORDS:
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 - Safe system of work - Generally - Duty of employer - Foreseeability of risk of injury due to inadvertence or misjudgement - Employer‘s power to enforce safe system - Whether employer was negligent in failing to maintain chainsaw - Whether the plaintiff was acting outside the scope of his employment - Plaintiff injured whilst using defective chainsaw.
McLean v Tedman (1984) 155 CLR 306, followed.
Aust Dig Employment Law [32]
Torts - Negligence - Contributory negligence - Generally - Plaintiff aware of defect in chainsaw - Plaintiff’s use of chainsaw in wet weather and standing upon slippery logs - Resultant injury.
McLean v Tedman (1984) 155 CLR 306, followed.
Aust Dig Torts [63]
REPRESENTATION:
Counsel:
Plaintiff: M J Brett
Defendant: P L Jackson
Solicitors:
Plaintiff: Rae & Partners
Defendant: Griffits & Jackson
Judgment category classification:
Court Computer Code:
Judgment ID Number: 79/1998
Number of pages: 18
Serial No 79/1998
File No 145/1995
GORDON PATRICK JOHN SCHRADER v TAS PALLETS PTY LTD
REASONS FOR JUDGMENT WRIGHT J
1 July 1998
On 15 May 1992 the plaintiff was employed by the defendant at its sawmilling premises at Mole Creek in Tasmania. The plaintiff was aged 29 years at the time and was employed in general yard duties about the sawmill. He was required to operate a loader to move logs around the yard and he was involved in the selection of logs for processing in the sawmill. He was also involved in the preliminary preparation of those logs before they were milled. This included removing the slubbens and cutting the logs into twelve foot lengths. He was also required to keep the yard free of unwanted timber. Unwanted timber included logs which had been delivered to the yard and were unsuitable for processing in the mill, by reason of their being too small, too bent or too dry. These discarded logs were placed in two separate heaps and from time to time the plaintiff, at his own discretion, would cut up these logs and split them into firewood. The firewood was then available for the plaintiff or other employees or for the proprietor of the defendant company, Mr Appleby.
The plaintiff‘s practice was to cut these logs with a chainsaw in the position in which they lay in the various piles. To do so the plaintiff frequently found it necessary to stand on other logs to gain access to the logs which were being cut. There were two chainsaws available to the plaintiff in the course of his employment. They were a Stihl model 090 chainsaw, and a Stihl 064 chainsaw. The 064 chainsaw was equipped with both a mechanical and an inertia operated chain brake. It was the smaller of the two saws, but nonetheless was still a comparatively large saw. The 090 chainsaw had never been fitted with a chain brake and was used primarily for ripping purposes.
On the day of his accident, a Friday, the plaintiff had completed his work at about 11.45am. It was the practice for employees at the mill to cease work at noon on Fridays. The plaintiff approached Mr Appleby and asked him whether he could cut some firewood. Mr Appleby consented to his doing so and the plaintiff took the 064 chainsaw to one of the piles of discarded timber. It had been raining quite heavily that day and the pile of timber was wet. The plaintiff stood on top of one log and commenced cutting another log at a slightly higher level and in front of him. As he did so the plaintiff experienced “pull through”, which is a phenomenon which can occur when the bottom edge of a moving chainsaw catches on some obstruction beneath the chain bar. The plaintiff lost his balance and started to fall forward. As he did so, he put out his left hand and, at about the same instant, the plaintiff claims the chainsaw “kicked back” and cut his left wrist severely.
“Kickback”, can occur when the upper quadrant of the bar nose contacts a solid object or is pinched in some way. The reaction of the cutting force of the chain causes a rotational force on the chainsaw in the direction opposite to the movement of the chain itself. When such an incident occurs, the bar may be flung upwards and backwards in an uncontrolled arc, usually in the same plane as the bar towards the face and upper body of the operator. If this occurs and the bar moves towards the operator, he may sustain severe injury. The greater the force of the kickback, the more difficult it is for the operator to control the saw. Many factors influence the occurrence and force of the kickback reaction. These factors include chain speed, the speed at which the bar and chain contact the obstructing object, the angle of contact and the condition of the chain. The plaintiff said that he experienced kickback when using a chainsaw several times a day. In cross-examination he was asked about this:
“If you’d ever talked about it to anybody you would have described it as kickback, not something else? ... If a chainsaw came back at you?
If the chainsaw suddenly flew up? ... That‘s kickback, yes.
Yes. And what did you understand to be the cause of kickback? ... Oh, basically when the tip of the bark came into connection with foreign objects. The kickback occurred, when I was ripping logs it occurred quite often as I had to drill - stand on top of the logs and drill the logs. You can make the chances of it a little bit less by changing the angle but it happened all the time by drilling that log. There’s not much you can do about it, it just wasn‘t as severe.
But it is a dangerous thing, of course, isn’t it? ... Oh, most definitely, very dangerous.
Because when it does occur if it‘s violent enough it brings the saw bar and chain up towards your head and shoulder? ... That’s right.
That, of course, assumes that you‘re holding the saw in a proper manner with your hand on the handlebar, your left hand on the handlebar; is that right? ... It’ll still come back at you whether you‘re holding it - your hand on the handlebar or not.
All right. If you are holding your hand on the handlebar it will come back with the saw, won’t it? ... Your hand?
Yes? ... Yes.
And that assumes that you are holding the bar properly? ... Yes, that‘s right.
And you had been taught, had you not, to hold the bar with a full grip, with your fingers wrapped around it and your thumb hooked under it? ... Yes.
And one of the reasons for that was - the reason for that was to make sure that you had a firm grip on the bar and were unlikely to lose that grip if kickback occurred? ... That’s right, yep.
Now without a chain brake, a chainsaw kicks back, removal of your finger from the throttle was not likely to stop the chain moving quickly enough to stop it injuring your head and shoulder, is it? ... No.”
To minimise the risks associated with kickback, chainsaw manufacturers fit chain brakes to most of their products. The chain brake fitted to the 064 Stihl saw, which the plaintiff was using at the relevant time, had a curved guard over the upper handle on the saw. This guard is designed in such a way that if an uncontrolled kickback occurs towards the operator, there is a high degree of probability that in doing so the guard will contact the operator‘s wrist and mechanically apply a brake to the chain preventing it from moving. The same process can also occur with the inertia component of the chain brake, which is designed to operate in circumstances where there is a sudden upward movement of the chain bar. If the brake operates in this way, movement of the chain ceases instantaneously.
The plaintiff says that neither of these braking mechanisms was in operation at the time of his accident. The plaintiff said that approximately a week before 15 May 1992 he had experienced problems with the 064 Stihl chainsaw, in that the chain brake was coming on unexpectedly in normal use, particularly when he was revving the engine at high speed. When this happened the chain brake would apply without having kicked back or come in contact with any foreign object and as a consequence the saw could not be used.
The plaintiff says that he reported this problem to Mr Appleby in the mill office. Present at the same time was Mr Craig Scott, the mill mechanic. Mr Scott indicated that he would fix the problem, and, with the tacit consent of Mr Appleby, he and the plaintiff went to Mr Scott’s office in the mill area where he kept his tools. Mr Scott said, “I‘ll fix this”, he took the cover off the chainsaw and then removed the chain brake belt from the internal workings of the saw. The cover
was then replaced and the saw was handed back to the plaintiff. The plaintiff made no complaint to Mr Scott about what he had done, but he knew that Mr Scott’s actions had neutralised the operation of the chain brake. He returned to his work because, he said, he had no other choice, and continued using the saw in this condition on a regular basis up until the day of the accident. The 090 and the 064 were the only two saws available to the plaintiff at the sawmill, although the defendant company owned and operated another 064 saw and also a Stihl 084, which were used in the timber harvesting area some distance from the sawmill. The plaintiff did not seem to know exactly where the harvesting area was or how far it was from the mill.
The plaintiff says that he complained to Mr Appleby on numerous occasions between the day on which the chain brake was tampered with and that on which the accident occurred. The plaintiff says that Mr Appleby assured him that he would get the brake fixed but he never got round to doing so. The plaintiff said:
“A couple of days before the accident I again complained and I said to him ‘Look Bill if you get the parts for me I’ll take it home and I‘ll get my wife to put it on for you’ ... I was hoping he‘d take this offer up but he didn’t and well it was the next day or so that the accident happened and it was too late then but I did as far as I was concerned everything within reason to get that chainsaw fixed but I was basically ignored.”
The plaintiff explained that although he was comparatively ignorant of the mechanical aspects of a chainsaw, apart from those which it was necessary to attend to for routine maintenance, his wife had worked as a chainsaw mechanic and would have been capable of repairing the saw.
Mr Gregory Howard, a very experienced chainsaw operator and instructor, gave evidence that chainsaw brakes may well malfunction by applying in the course of normal use in the way described by the plaintiff if some of the internal mechanical parts had become worn. The plaintiff said that the saw in question was “just about due for replacement” but there was no direct evidence as to its age or its general mechanical condition at the relevant time.
The plaintiff has taken proceedings against his employer alleging that his accident was caused by his employer‘s negligence. Particulars of negligence were provided, claiming that the defendant, its servants or agents, were negligent in that it or they:
“(a) Failed to properly maintain the Chainsaw;
(b) Failed to ensure that the Chainsaw was fitted with an operational chain brake;
(c) Failed to warn the Plaintiff that the Chainsaw should not be used whilst not fitted with an operational chain brake;
(d) Failed to properly supervise the Plaintiff;
(e) Removed the chain brake from the Chainsaw and thereafter allowed the Chainsaw to be used;
(f) Failed to properly train or educate the Plaintiff so that the Plaintiff did not use the Chainsaw whilst it was not fitted with an operational chain brake;
(g) Failed to utilise a product known as a ’safety chain‘ to minimise andor prevent the risk of injury to the Plaintiff by kickback.
(h) Failed to provide a safe system of work, in particular a system whereby any logs to be cut by chainsaw were to be first positioned so that each log could be cut in circumstances where the tip of the chainsaw bar was not able to come into contact with any other object, including another log, and further
or in the alternative the operator of the chainsaw was able to adopt a balanced stance on a firm, level, non-slip surface whilst operating the chainsaw.
(i) Failing to ensure that the Plaintiff received adequate training in the following principles of operation of a chainsaw:
i) That the tip of the chainsaw must not be able to come into contact with any other object during the course of sawing a log.
ii) That he must keep a safe grip on the handle of the chainsaw with his left hand at all times.
iii) That he must not stand on other logs whilst operating the chainsaw,
iv) That he must adopt a balanced stance on firm level ground whilst operating the chainsaw.
(j) Failing to instruct the Plaintiff observe the safety requirements referred to in paragraph (i) hereof.
(k) Failing to adequately supervise the Plaintiff so as to ensure that he observed the safety aspects referred to in paragraph (i) hereof.
(l) Permitting the Plaintiff to operate a chainsaw when he knew or ought to have known that the Plaintiff had not:
i) Completed an approved course of training, nor
ii) Been assessed as able to undertake safe working procedures relating to the operation of a chainsaw.
Within the meaning of the Industrial Safety, Health and Welfare (Forest Industries) Regulations 1990.
(k) [sic] Failing to take such steps as were necessary to ensure that the Plaintiff, completed the approved training course andor the assessment referred to in (1) above.”
The defendant has disputed the plaintiff’s claim, vigorously asserting that the chain brake had not been disconnected at the time of the plaintiff‘s accident and alleging that his injury was caused by his use of the chainsaw in his own time. It was also alleged that the chainsaw “pulled through” causing him to become unbalanced, and that it was a consequence of these events alone which caused him to fall forward cutting his wrist on the saw. The allegation that the chainsaw had “kicked back” was strongly denied. The defence alleged that the injury was wholly caused or contributed to by the plaintiff’s own negligence. Particulars of that negligence were in the following terms:
“(a) used the chainsaw when he knew or ought with the exercise of reasonable care have known that it was not fitted with a chain brake, if that was the case;
(b) failed to exchange the chainsaw for another when he discovered that it was not fitted with a chain brake, if that was the case;
(c) used the chainsaw when he knew or ought with the exercise of reasonable care have known that the chain brake fitted to it was not operational, if that was the case;
(d) failed to exchange the chainsaw for another when he discovered that the chain brake fitted to it was not operational, if that was the case;
(e) failed to report the fact that the chainsaw was not fitted with a chain brake, or that the chain brake fitted to it was not operational, if either was the case;
(f) failed to properly maintain the chainsaw that he was using with the result that it was not fitted with a chain brake, or that the chain brake fitted to it was not operational, if either was the case;
(g) failed to clear the area where he was working before putting the chainsaw into operation so as to ensure that he would not trip or stumble and fall upon the chainsaw;
(h) failed to position the log that he was cutting so as to prevent the tip of the chainsaw coming into contact with another log;
(i) failed to position the log that he was cutting so as to enable him to adopt a balanced stance on level ground while operating the chainsaw to cut the log;
(j) failed to hold the chainsaw firmly with his fingers fully encircling the forward handle and his left thumb hooked under the forward handle so as to reduce the risk of his hand becoming dislodged from the handle and coming into contact with the saw chain.”
The action came before me for trial on the issue of liability only.
The plaintiff said that “kick back” was a phenomenon which he experienced on a daily basis, particularly when rip cutting logs, but, he said, in such circumstances the “kick back” could generally be controlled and was not severe. He had no trade qualifications in the use of a chainsaw, nor had he had any formal training from Mr Appleby or anyone else. As he said, “I basically taught myself”. He had been employed by the defendant in similar duties since 1987 and regarded himself as a competent operator. If the process which caused his injury had been a complicated one or had involved the plaintiff in some unfamiliar and hazardous operation, there may be room for the complaint that he had not been adequately instructed or supervised. But what the plaintiff was about was a simple enough task, free of complexity, although, like all jobs involving use of a chainsaw, it was not without a degree of risk.
The plaintiff was familiar with “pull through” and “kick back” and the way in which use of the saw could cause one or other or both of these occurrences to take place. He was also aware that the bar handle on the top of the chainsaw should be held with a full grip, ie, with his fingers wrapped around and the thumb hooked underneath so that the risk of loss of control would be minimised if “kick back” occurred.
Immediately after the plaintiff sustained the injury to his left wrist, he managed to attract the attention of a fellow employee, Leigh McCall, who came to his aid and drove him by car to Chudleigh where he was picked up by a policeman and taken to Deloraine. From Deloraine he was conveyed to the Launceston General Hospital by ambulance. He was admitted as a patient and surgery was performed on his injured arm.
A day or two later Mr Appleby visited the plaintiff in hospital. At the time the plaintiff says that he was “pretty well doped up”, but he recalls Mr Appleby saying to him something to the effect “I‘ll scratch your back if you scratch mine.” The plaintiff interpreted this as being a reference to the condition of the chain brake and that this was an implied suggestion that Mr Appleby would see that he was appropriately looked after if he, the plaintiff, did not disclose to anyone that he had been using the saw while the brake had been deliberately disabled.
The plaintiff’s understanding was reinforced a few days after he was released from hospital when Mr Appleby came to visit him at his home. The plaintiff says that after speaking to him inside his home and inquiring as to his progress in the presence of the plaintiff‘s wife, both men went outside where Mr Appleby:
“… threatened me, he said, I can’t remember the exact words, but he made it quite clear that if I said anything to anyone concerning the chain brake or kickback that I wouldn‘t have a job to go back to. … He basically said it more as a passing comment on his way out, really. It was just sort of the one statement and he left, I didn’t even get time to really say anything back to him. It was like he couldn‘t get out of there quickly enough. … I was stunned.”
The plaintiff said that at this stage of his convalescence he believed he would be back at work within three weeks. If true, this is an important factor to bear in mind because it may explain why both Mr Appleby and the plaintiff himself were prepared, at least at that stage of events, to keep quiet about the condition of the saw. Plainly enough, if the injury was not serious or permanently disabling, no great harm was likely to come of such a deception.
Subsequently, about ten days after the accident on 25 May 1992, the plaintiff was interviewed by a workplace safety inspector employed by the Department of Labour and Industry (“the DLI ”), Mr William George Ewington. The plaintiff made a statement in the following terms:
“On Friday 15.5.92 at approximately 11.55 I was cutting firewood at Tas Pallets Sheffield Rd, Mole Creek.
I was standing on a log and cutting another log with a chain saw.
I slipped and fell forward, I put out my left arm to try and push myself away from the saw but the saw cut my wrist as I fell. It all happened so quick that I still had my finger on the throttle of the saw.”
It will be noted that there is no mention in this document of either the absence of an operational chain brake or the occurrence of “kick back” as a factor contributing to the accident.
The plaintiff was asked in cross-examination why he had not told Mr Ewington that the saw had kicked back and he replied:
“Very simply, I was threatened by Mr Appleby not to say anything. Secondly, I knew that the DLI would close our mill down as they threatened to only weeks prior to the accident and I would have been the cause of mass unemployment, so to speak, out Mole Creek. Some twenty odd people would have lost their job and I would have lost mine as well.”
It was suggested to the plaintiff in cross-examination that he had made up the story about the inoperative chain brake to enable him to recover damages in these proceedings. To counter this suggestion of recent invention, I permitted his counsel, Mr Brett, to call evidence from the plaintiff’s wife regarding statements made by him to her about the condition of the saw shortly before the accident. I also admitted evidence by Mr McCall as to a comment made to him by the plaintiff as he was driving the plaintiff to Chudleigh immediately after the accident. Mrs Schrader said that during the week prior to the accident the plaintiff “told me that the chain brake on the 64 wasn‘t working. And I said to him to bring the saw home with parts, like, get [Mr Appleby] to give him the parts and I would fix it for them and they could have it back the next day.”
Mr Leigh McCall said that on the day of the accident he was loading a trailer with wood in the yard when he heard the plaintiff call for help. Mr McCall went to his assistance and drove him approximately fifteen kilometres to Chudleigh. During the journey the plaintiff commented, “It should have had a chain brake.” Mr McCall agreed that in a statement which he made to a Mr Alford, an insurance investigator, who was apparently investigating the accident some seven months after its occurrence, he had made no reference to the plaintiff’s remark about the chain brake. That statement was tendered in evidence.
In some circumstances an adverse inference could be drawn from a witness‘s failure to mention such a matter to an investigator, but Mr McCall was asked whether he had mentioned the plaintiff’s comment to Mr Alford and he said that he had. Mr Alford was not called to rebut this claim. More importantly, however, the written statement, which became an exhibit, is brief and is difficult to read. The format and content of the document does not suggest to me that an honest witness, being asked about the accident, would necessarily have volunteered information about what the plaintiff said during the car journey to Chudleigh. Also, if Mr McCall had mentioned the conversation as he claimed and it had not been noted by Mr Alford, it would not necessarily have been picked up by Mr McCall as a relevant omission from his account before he signed the statement.
Mr Scott, the defendant‘s mechanic, was not called to give evidence by either party during the trial. I discussed with counsel the possibility that Mr Scott’s absence may permit an inference of one kind or another to be drawn. Counsel conferred on the matter and I was advised that it had been agreed that no inference adverse to either party should be drawn from Mr Scott‘s failure to give evidence.
I was also informed that Mr William Appleby had died since the plaintiff’s accident and, by agreement of counsel, a written statement which he had made to Mr Alford on 3 February 1993 was admitted into evidence. That statement was in the following terms:
“Statement by Stewart William Appleby of Baldocks Road, Mole Creek.
I am the owner of Tas Pallets Pty Ltd, a Sawmilling Company specializing in the manufacturing of pallets.
The Company has been in operation around ten years, on the 15th May 1992, an employee of the Tas Pallets Pty Ltd, Gordon Schrader, sustained injury to his left wrist when he was cut by a chainsaw.
The accident occurred on a Friday, during the morning Schrader had been using the chainsaw cutting logs on the landingskidway at the Mill.
Our working hours on a Friday at [sic] 7:30am to 12:00 noon.
Around 11:50am, Schrader came to me and said he had finished cutting the logs on the landing and asked if it would be alright if he cut some of the waste timber around the Mill to take home for firewood.
I told him that it would be alright, I knew that he had collected some timber over the back of the Mill which needed to be cut up and would be suitable for firewood.
I allowed Schrader to cut the wood for himself during working hours because it helped clean up around the Mill.
After speaking with Schrader I went home to get the pays, the men are paid at knock off time each Friday.
While I was away, the accident occurred, when Schrader was using the chainsaw he stumbled, lost his footing and his left wrist went over the blade of the chainsaw.
He was working by himself, under his own Supervision, I didn‘t provide any instruction as the cutting of the timber for firewood was not part of his working duty, although I reconfirm I was pleased that he was cutting the timber and cleaning up around the mill.
Ever since starting working at the Mill in September 1989, Schrader has been using a chainsaw, he was a competent operator, he could handle a chainsaw without any difficulty.
He received additional on the job training from me, I explained to him at times how he should cut the timber and other safety aspects.
After the injury occurred, somehow Schrader attracted Lee McCall’s attention, McCall works in the area of manufacturing of pallets.
It was obvious Schrader had a nasty cut, McCall took him by car to the Deloraine Doctor, he was taken from there to the Launceston General Hospital.
I am not fully aware of the extent of the injury, although he cut nerves and tendons in his left wrist, when I saw him around two weeks ago, his left hand was ‘dead’ he is not able to use it, he has little feeling, there is no way that he could return to work at the moment.
Signed: S W Appleby
Witnessed: Peter R Alford
Date: 3rd February 1993”
It was common ground that Mr Appleby was absent from the mill at the time of the plaintiff‘s accident, but the plaintiff staunchly rejected the proposition that cutting waste logs for firewood was outside the scope of his employment. Mr Appleby’s statement mentions nothing about the mechanical condition of the chainsaw or the chain brake, but this is scarcely surprising. If he had approached the plaintiff and threatened him, as claimed, he would obviously not mention these matters and if, on the contrary, he had heard nothing to suggest that the saw was faulty or in other than perfect mechanical condition, there would have been no need to mention it at all. As a consequence, Mr Appleby‘s statement provides little, if any, assistance in the important and crucial task of assessing the plaintiff’s credibility. His statement as to the circumstances in which the accident occurred is obviously based on what he was told by others or was part of a deception to which the plaintiff alleges he and Mr Appleby were parties. Either way, it has no probative value.
The defence case was that the plaintiff‘s claim that the chainsaw was defective is a fabrication, that the saw was in full working order, the chain brake was operating efficiently and that “kick back” played no part in the plaintiff’s accident. Additionally, it was submitted that the plaintiff‘ was a fully competent chainsaw operator who required neither instruction nor supervision in the task in which he was engaged.
It was also submitted that the plaintiff was acting outside the scope of his employment or that the defendant owed him no relevant duty of care at the time he sustained his injury.
Evidence was given for the defence by Mr Ewington and also by Mr Philip John, a rural forestry inspector employed by the DLI at the relevant time. Mr John has had considerable experience in chainsaw operations and he was asked to inspect the chainsaw involved in the plaintiff’s accident as part of his duties. Mr John said that in May 1992, about two days after the accident, he went with Mr Ewington to the defendant‘s premises at Mole Creek. He was shown a saw, claimed to be the saw involved in the accident, by Dion Appleby, the son of Mr William Appleby. I note in passing that Dion Appleby was not called as a witness by either party. The saw which Mr John inspected was a Stihl 064 model.
Mr John was unable to identify a Stihl 064 shown in one of the exhibit photographs as the saw which he inspected, but he said it was of the same type. He said, “I gave the chain saw a physical check. I actually started the saw, testing the chain brake, the inertia chain brake.” He noted that the chain catcher was still attached. He was unable to find anything wrong with the saw. He found the inertia operation of the chain brake worked satisfactorily. He had no recollection of anything “that gave me any indication that anything had been altered on the saw at all.”
He said if a chainsaw has been used for a while it tends to get a build up of a residue around the area of the chain brake, so if something had been altered on the saw which he had inspected, it would have been fairly obvious. In saying this he was speaking of external appearances. He did not inspect the saw’s internal mechanism.
I am unable to regard this evidence as positively establishing that the saw, if it was the saw which caused the plaintiff‘s injury, had not been altered by the replacement of the parts allegedly removed by Craig Scott. At the time of his inspection, Mr John had no reason to suspect that the saw may have been tampered with after the accident. Nor was there any reason for Mr Ewington or Mr John to suspect, at that stage, that the chain brake was inoperative on the day of the accident. It seems likely that the accident had been reported to the DLI by the police, but there is no evidence to suggest that before going to the mill and inspecting the saw, any officer of the DLI had spoken to the plaintiff to ascertain how the accident might have occurred. The plaintiff was not spoken to by Mr Ewington until 25 May 1992, some ten days after the accident. If Mr William Appleby was intent upon deceiving anyone who may be interested in investigating the cause of the accident, as the plaintiff’s evidence clearly suggested, he had an opportunity to either substitute another saw for that which caused the injury or to have the chain brake repaired or the part removed by Mr Scott replaced before the DLI inspection. The evidence suggests, and I so find, that Mr Ewington and Mr John visited the mill on Monday 18 May 1992.
The plaintiff gave evidence that although only a Stihl 090 and a Stihl 064 were used at the mill, the defendant company owned another 064 which was used for harvesting timber in the bush. There was ample time for that saw to have been substituted for that which had been used by the plaintiff before the DLI inspection. Similarly, there was time for the belt or band which the plaintiff says he saw Craig Scott remove from the saw when he disabled the chain brake, to be replaced before the DLI inspection team arrived. It may be argued that such a process would simply reinstate the chain brake in a defective condition, but it must be remembered that the plaintiff‘s problem had been that the brake was coming on during normal operation and was thus preventing the saw being used productively. Mr John’s concern was to see if the saw‘s chain brake was working effectively to prevent “kick back”. Although he operated the saw to some extent, it may be doubted that he tried to use it in a genuine work situation. His findings were not necessarily inconsistent with the chain brake having been reinstated.
It was also possible in the time available for the saw involved in the accident to have been serviced and any defective parts replaced by Howe and Sons, a firm of mechanics at Mole Creek. The plaintiff’s evidence was that Mr Howe often repaired chainsaws for the defendant, if necessary “out of hours”, which I infer means during the weekend, to prevent any delay in or loss of productivity at the mill. No one from Howe and Sons was called to give evidence by either party.
The plaintiff gave evidence that Mr Appleby, “was having some trouble with the accounts, with Don Howe and I presumed that might have been one of the reasons why he was delaying having it [the saw] fixed.” He says that was why he offered to have it fixed by his wife. This evidence, if accepted, obviously provides an explanation for a matter which would otherwise be difficult to explain, viz, why Mr Appleby should (a) have allowed Scott to interfere with the saw, and (b) have postponed having it properly repaired by a competent chainsaw mechanic. After all, the plaintiff agreed that such repairs as were necessary were generally carried out without delay once Mr Appleby had been advised of such a need arising.
A question also obviously arises as to why Mr Appleby would be prepared to mislead the DLI and also, presumably, his insurers as to the condition of the chain brake. I think that it can safely be inferred that the DLI was likely to become aware of the accident and would, as a consequence, cause an inquiry to be undertaken. It may also be inferred that this would have been
appreciated by Mr William Appleby. After all, part of the DLI‘s raison d’etre is to investigate industrial accidents. I think that it may also safely be inferred that if the DLI had become aware that such an accident had occurred as a consequence of a chain brake having been made inoperative with the knowledge or acquiescence of a mill operator, that operator would be in serious trouble and may well be prosecuted for breach of industrial health and safety legislation.
The plaintiff suggested that the defendant company had already been in trouble with the DLI a very short time before the accident and that, as a consequence, Mr Appleby thought that some further infraction would result in the mill being closed down. I have already referred to what he said about this.
The plaintiff said that he and Mr Appleby held each other in high regard and had an excellent general relationship. This, of itself, causes me to question whether Mr Appleby would be likely to threaten the plaintiff with dismissal if he mentioned anything about the chain brake, but, on the other hand, if he really feared that the mill may be closed in consequence of the events leading up to the accident, this may have provided a strong incentive for him to become aggressive and devious. It was put to the plaintiff that he was wrong when he said that the DLI had threatened to close the mill down, but he maintained his stance on this matter.
During the trial, by agreement between the parties, a report prepared by Mr Ewington in May 1991 was taken into evidence as exhibit D8. It was conceded by counsel for the plaintiff that, “this is the only document that exists on the Department‘s files relating to any inspection of the defendant’s mill.” Exhibit D8 is a six page proforma document headed, “Industrial Safety Health & Welfare Act 1977—Initial or CO Inspection—Sawmills”. Within the document are various sections relating to machinery and other items of equipment at sawmills. Provision is made for an operator checking these matters to make appropriate comments as to the condition of each of these items.
It is plain that upon Mr Ewington‘s inspection at the mill in May 1991 some of the matters did not meet with his satisfaction. These problems were also referred to in a four page letter annexed to his report. The letter is addressed to Mr W Appleby at Mole Creek and specifies five areas in which the mill was “found not to comply with Regulations”. On page 4, the following passage appears:
“The Inspector will re-visit your premises in about two months from the date of receipt of this Notice of Inspection. At that time if non-compliance still exists, then Prohibition Notices closing down the effected [sic] area will be issued. If these Notices are disregarded then the matter will be referred to the Director for Public Prosecution [sic] for consideration.”
Whilst this letter, and counsel’s concession, tend to show that the plaintiff‘ was wrong in saying that the DLI had threatened to close the mill down “only weeks before” the accident, it lends substantial weight to his assertion that Mr Appleby was fearful that the DLI may close the mill. This, to my mind, is a much more significant feature than the question of how long before the accident such a threat of closure was made.
Mr Ewington agreed with counsel for the plaintiff that if, upon re-inspecting the mill after his letter to Mr Appleby in May 1991, it was found that no work had been done and “all of these pieces of machinery had not been attended to and you closed each of them down, the whole sawmill would have been virtually inoperable.”
I am quite unable to be critical of the plaintiff’s demeanour in the witness box. He appeared to be frank and responsive when answering questions. He was articulate and is plainly not
unintelligent. But I am also conscious that, upon his own showing, he has been capable of mendacity, albeit by failing to tell the whole truth, rather than deliberately lying, when reporting this event to Mr Ewington and Mr Alford. The plaintiff, of course, says that this deception followed threats by Mr Appleby and if that is so, there is little room for criticism of his conduct.
It is fair to say that the plaintiff‘s version of events was not shaken by cross-examination and, indeed, one or two matters which I have discussed above as being important in relation to credit found their way into his evidence as incidental comments, rather than matters of primary significance in the presentation of his case.
I am also fully conscious that the plaintiff’s evidence is not corroborated in any material particular except to the extent that his wife‘s evidence and that of Mr McCall rebut the suggestion that he recently invented his evidence as to the faultiness of the brake, and that such direct evidence as exists from Mr Ewington, Mr John and the statement which the plaintiff made to Mr Alford, tend to strongly support the defence claim that a faulty chain brake and “kick back” were not factors in the mishap.
Neither Dion Appleby nor Craig Scott have given evidence. The plaintiff was the only eye witness to the accident, and each of the gentlemen just named appear to have been in a position to supply important, if not vital, information. However, it would be idle to speculate as to why they did not give evidence at the trial.
In the final analysis, I have concluded that, notwithstanding these features, the plaintiff’s evidence as to the chain brake should be accepted. The documentary evidence produced by the defendant which appears to be inconsistent with the plaintiff‘s case is not, to my mind, of sufficient strength to lead me to conclude that the plaintiff is presenting a fraudulent case. The plaintiff’s explanation of the apparently inconsistent material does not stretch my credulity to the limit and does not cause me to turn my back upon his case in disbelief. I accept that the chain brake was disconnected by Mr Scott as described and that Mr Appleby knew of this well before the accident. The question therefore arises. Did the absence of the chain brake play a causative role in the plaintiff‘s accident?
This is not such an easy question as may at first appear. To start with, the plaintiff was unable to recognise the scene of the accident as depicted in photographs (Exhibit P3) and, insofar as he tried to explain the accident by reference to those photographs in his evidence-in-chief, he was plainly wrong. He was holding the relevant photographs upside down and he was plainly reconstructing the accident from his interpretation of what he saw in the photographs, rather than from a clear recollection of what he had seen at the site. Worse still, he was extremely slow to concede that he was looking at the photographs the wrong way round, although he conceded readily enough that he was unsure about many aspects of the circumstances immediately preceding the accident.
The plaintiff described the accident in these terms:
“I basically got up onto a log that was in front to get at another log behind. I was cutting from right to left. And as I was cutting the chain saw grabbed and it pulled forward which was enough to put me off balance and had me in a forward motion. And then the chain saw kicked back and as it kicked back I was going forward, it came back, I had my hand like that and it met in the middle. I then—
HIS HONOUR: Sorry, show me how you had your hand? … Like that, your Honour. I had the chain saw like that, the hand came off the bar.
HIS HONOUR: It is pointing upwards and to the left, is it? About 45º angle? … That is right, yes. It connected. I then, I still had hold of the trigger. I then walked back off that log and put the chain saw down and I looked at my wrist and it had been opened up. I actually felt contact with the wrist which felt like a punch. But I wasn’t quite sure at that time whether it actually severed the wrist. I then called out for help.
…
I sort of had my feet just slightly apart but not forward like that because there wasn‘t much room. And so I was sort of straight over like that.
Was the log level that you were standing on? Did it provide you with a level surface or what would you say about that? ... It was a bit corrugated.
HIS HONOUR: How big a diameter was that? ... That I was standing on your Honour?
HIS HONOUR: Mm? ... I’d only be guessing your Honour, three feet maybe I‘m not quite sure I never took much notice.
HIS HONOUR: It wasn’t just a piece of limb or anything like that? ... No it was reasonable.
MR BRETT: (Resuming) And what about the log that you were actually sawing do you know the diameter of that? ... It would have been roughly about two feet.
And in relation to the log that you were sawing was there any other log near it? ... Yes there were logs all behind it.
How close were they to the log that you were sawing? ... Touching.
Touching, do you know whether your, whether the blade of your chain saw came into contact with those logs at any time during the course of the cut? ... I would have presumed so, yes.
Right and how far through the cutting of the log were you when, what you‘ve described occurred? ... Nearly all the way, all but finished.
You say that the chainsaw kicked back, how do you know that occurred? ... I felt the reaction in my wrist, it really hurts, it was like a sprain. I knew it definitely kicked back because I felt that on a daily basis.
Do you know whether the chain was revolving at the time when it came into contact with your wrist? ... I would have presumed so because I did have my finger on the trigger.
How long did all this take from the time that you felt the initial pull through until it came into contact with your wrist, are you able to estimate the time? ... It was a split second it wasn’t very long at all.”
Asked in cross-examination what caused the saw to “kick back”, the plaintiff said, “I would imagine a foreign bit of timber behind it there somewhere, I didn‘t see what actually caused it to kickback.” Later, he described how he was cutting the log and the saw started to pull through. The following questions and answers then occurred:
“And that pull caused you to stumble? ... Yes to go forward, that’s right.
You lost your balance? ... That‘s correct, I was in a forward motion.
You lost your balance and you fell forward, correct? ... Yes.
Towards the chain? ... Yes.
And you put out your hand? ... Mm
As you fell and you fell onto the chain? ... That’s, my hand fell onto the chain?
Yes? ... When I went forward I was, I had the chainsaw like that and I was going forward and then the chainsaw came back, that‘s how it got there. Now if I had of fell I would have had my palm open, the idea if anything I would have used the palm, with an open palm I would have lost probably a few fingers and damaged my palm and it would have rested my hand on that side of the chainsaw right on a log.
Mr Schrader do you agree that you lost your balance when the saw caught? ... Yes I was in a forward motion, yes.
And you agree that when you lost your balance and started to fall forward you took your left hand off the handle of the chainsaw? ... Yes.
And put it out, you demonstrated earlier in front of you? ... I didn’t put it out like that, that was my intentions though, I was on the verge of doing that, yes.
Now I suggest to you that you simply fell forward so that the underside of your wrist came in contact with the chain? ... That‘s absolutely ludicrous. Are you telling me that I’m falling, not falling like that, 45º angle on a cut where the chain would not even be protruding because the actual log had been back cut.
That‘s you construction of it but I suggest there was plenty of exposed chain back from the cut that you’d just made in the log and it was when you cut through the log and saw the chain caught on the log behind it, immediately in front of you that you were caught off balance and fell forward on the chain. That‘s what I’m suggesting happened? ... That‘s not what happened at all.
The kick back played no part in this accident at all I suggest? ... I can guarantee it did play a part and it played a big part that’s the only reason I got cut at all.”
A little later:
“And it‘s that pull forward that you experienced that threw you off balance? ... Yes.
Caused you to stumble? ... Sorry.
Caused you to stumble? ... Yes.
And caused you to take you hand off the bar and put it out in front of you as you fell forward? ... Yes.
You said it was wet? ... Yes, that’s correct.
Was it slippery on the logs? ... Oh, it wasn‘t that bad actually, they were pretty dry but I suppose, yeah, it would have been a little bit slippery, I guess.
Is it the case perhaps that you slipped while you were operating the chainsaw and that caused you to fall on to the chain? ... I did slip forward but I didn’t slip as in falling in a great big heap. I was more off balance than anything but I did slip forward, yes. It did put me off balance.”
There was no evidence as to what, if anything, the plaintiff told Mr William Appleby as to the way in which he came to sustain his injury. Nor was there any such evidence as to what the plaintiff told Mr McCall, the police officer who conveyed him from Chudleigh to Deloraine, the hospital staff, his wife or anyone else who may have been in a position to acquaint Mr Appleby, not only with the fact of a serious accident, but also its cause.
If, as I have found, Mr Appleby was aware that the chainsaw was being used with an inoperative chain brake, he may have assumed that this defect caused or contributed to the accident, but there is no basis upon which this assumption may be inferred. Of course, whether or not the defective chain brake was assumed by Mr Appleby to have been instrumental in the mishap, he would still have had good reason to be concerned at the possibility that a DLI investigation would reveal that the saw had been rendered unsafe and had been used in that condition. Thus, his threats to
the plaintiff during his visit to the hospital and the later home visit are not explicable solely on the basis that he had been told by anyone that the defective brake had caused the saw to “kick back” and injure the plaintiff as a result. In short, he could have foreseen that he would be in serious trouble with the DLI whether the defective brake had caused the accident or not.
The plaintiff readily agreed with Mr Jackson during cross-examination that he and Mr Appleby enjoyed a good relationship and held each other in high regard before the accident. Mr Jackson submitted that this relationship would have made it highly unlikely that Mr Appleby would threaten or cajole the plaintiff in the manner claimed. Whilst there is some substance to this argument, it has not prevented me from finding that such conversations did occur, but I do find it very difficult to believe that then, or at some later time, the two of them did not discuss the cause of the accident and that the plaintiff did not at any time angrily admonish Mr Appleby for having obliged him to use the saw for many days in a defective condition. Whether or not such matters were discussed simply does not appear from the evidence. Nor does it appear from the evidence of Mr McCall that the plaintiff directly attributed the accident to the defective chain brake. The entirety of Mr McCall‘s evidence as to what the plaintiff said was as follows. First, he heard him call “help”. Then the plaintiff said “that he’d cut his arm” and later, “it should have had a chain brake.” In cross-examination he said, “We probably were just talking a little bit. I lit up a cigarette for him.” He said that he could not remember whether the plaintiff said anything else at all about how the accident happened.
The injury to the plaintiff‘s left arm consists of a transverse laceration across the inner aspect of the forearm above the wrist. The plaintiff demonstrated how the accident occurred in the witness box, holding his left arm in front of his body. Whilst the demonstration was neither convincing nor unconvincing, it is difficult, in retrospect, to understand how the arm could have been raised to this defensive position in the split second available from “kick back” to injury, particularly as the plaintiff was overbalancing towards the saw at that time as a result of the pull through problem which he had experienced.
Mr Howard said:
“There is a generally accepted time amongst the industry that from a position where you are normally operating the chainsaw which is slightly forward of the horizontal, slightly lower than horizontal, back to striking the face is about .2 of a second.”
Mr Jackson suggested to the plaintiff that “kick back” played no part in the accident and that it occurred because he was standing on slippery logs, overbalanced when pull through occurred and put his left arm out in a naturally defensive reaction as he fell forward. The plaintiff rejected this, saying that if this had occurred, he would have lacerated the palm of his hand or his finger, but I found this argument unconvincing. I dealt with the plaintiff’s statement to Mr Ewington when discussing the evidence as to the state of the chain brake. As Mr Jackson pointed out, there was no mention of “kick back” in that statement. Whilst it is significant to consider that omission from the perspective of the plaintiff‘s credibility concerning his claim that the chain brake was inoperative, it is also relevant to note that the description therein of how the accident occurred tallies very closely with the plaintiff’s witness box description of what actually happened, save only for the omission of any reference to “kick back”.
Mr Howard, in his evidence, acknowledged that if “pull through” occurs which pulls the saw tip into contact with another log in front of the log being cut, “kick back” may then occur. He also said:
“Quite obviously to cut logs when they‘re stacked in a pile like that is an unsafe practice and it is said by industry that you just don’t do it that way. The main reason for that is one of the requirements to safely cut a log is that you need a balanced
stance. A balanced stance requires you to be on a firm surface, a firm, non-slip surface and to be to place or spread your legs appropriately so that you can stop yourself from being pulled forward or pushed backwards in the event of a kickback situation or a pull through or a push back situation.”
I have considered the evidence bearing upon the circumstances in which the accident occurred very carefully and in the final analysis I am simply unpersuaded, on the balance of probabilities, that “kick back” played any part in the sequence of events which produced the plaintiff‘s injury. I think it is more probable than not that the accident occurred in the manner which was put to the plaintiff in cross-examination by counsel for the defence. That being so, the plaintiff’s claim cannot succeed insofar as it is based upon particulars of negligence (a), (b), (c) and (e).
I turn therefore to consider the remaining allegations contained in particulars (d) to (k) (second appearing) inclusive. Mr Howard gave evidence as to safe practices and courses of instruction which are available as to the safe operation of chainsaws and I shall refer to that in a moment, but I should say at the outset that I am fully satisfied that the plaintiff was acting within the course of his employment with the defendant at all relevant times. The fact that he may have benefited from cutting up rubbish logs is of little, if any, significance, in my opinion. Mr Appleby‘s statement that this was the prime purpose for what the plaintiff was about carries little weight. I accept the plaintiff’s evidence that this was a more or less regular practice in which he engaged from time to time to clean up the mill yard and remove hazards from the mill environment. The fact that he sought and obtained Mr Appleby‘s permission to do so on the day of the accident is a neutral circumstance, in my view.
Mr Howard gave evidence that he has been a harvesting training manager for the Hollybank Forestry Centre and before that with the Tasmanian Forest Industry Training Board since September 1989. He is the head chainsaw trainer at Hollybank and is an accredited assessor with the Tasmanian Forest Industry Training Board. He worked for fourteen years as a professional tree feller, chainsaw operator and machine operator in the timber industry. He was referred to photographs of the log pile upon which the plaintiff was injured.
Mr Howard said:
“With the introduction of the Forest Industries Regulations in 1990 covered forest industries which meant that people who worked on the harvesting side of the operation or worked in a sawmill where the logs were cut in an unprocessed manner, that means that they were cut in the round, were required since 1992 when that actual clause came into place to have been assessed as having been competent and hold a certificate.
And you conduct training and the assessment side of things? ... Yes.
What role would a requirement that we are speaking about in relation to the safety aspects of cutting logs stacked in a pile, what type of training would operators receive about that if they were undertaking training? ... Well in a training situation we simply wouldn’t do it because it would be deemed as dangerous situation. If we were working in a sawmill and conducting training there, we would instruct the operators of the machines or get them to unstack the logs for us and we would instruct trainees not to stand on logs or to cut logs that are stacked up in a pile.
And if during the course of assessment, they breached either of those instructions, what would be the result of their assessment? ... Generally they would fail if it was to stand on another log or not have a balanced stance is not on its own a total failure, but you‘d certainly lose a number of points for that and if it was combined with any other minor indiscretion, then it would cause the applicant to fail. If however they stood on a pile of logs where it was deemed by the assessor that they placed
themselves in significant danger, then the assessment would be cancelled at that point because they’ve endangered themselves.”
This evidence was given without objection, but the Regulations referred to were not tendered in evidence. I have no evidence, therefore, of the actual competency requirements imposed by the Regulations, nor the date upon which the Regulations came into operation. This is important, of course, because the plaintiff‘s accident occurred on 15 May 1992.
Assuming, however, that the Regulations specifically prohibited anyone at a sawmill being employed in using a chainsaw unless that person had satisfied an examiner of his competency to do so, it is difficult to see how breach of that regulation alone could suffice to give the plaintiff a successful claim for negligence or breach of statutory duty (the latter of which I note has not been pleaded as a separate cause of action) unless it is also shown that the plaintiff was not a competent operator and such lack of competency was a cause of his injury. The evidence does not show that the plaintiff was incompetent. Although he may have taken risks from time to time, he regarded himself as being generally very experienced and competent. He held no certificate of competency and had received no formal training. He said, “I basically taught myself.” He had been employed as a general mill hand, including chainsaw operations since about 1987. Obviously, he used a chainsaw for his yard duties several times a day and he often worked six or seven days a week. As already noted, he was aware of “kick back” and experienced it to some extent every working day. I do not read this evidence as meaning that he operated the saw incompetently, but rather as indicating that some aspects of his work necessitated use of the saw in such a way that its tip would be brought into contact with timber deliberately and in a generally controlled manner. What he said about “drilling logs” in a passage of evidence reproduced above, does not seem to me to be contrary to anything that Mr Howard said about the practice of using a chainsaw to do a “boring cut”, as he called it.
The plaintiff was aware of the need to hold the saw handle firmly with his thumb locked under it to minimise dangers from “kick back”. He was also well aware that using a chainsaw such as the 064 Stihl, without a chain brake, was hazardous.
Whether he knew that it was hazardous to stand on a pile of wet logs whilst cutting other logs in the pile does not appear directly from the evidence, but I am quite prepared to infer that he was aware that such a practice would provide an unsound footing with consequent increased risk of danger, either from falling or overbalancing in the vicinity of a moving saw chain.
Mr Brett’s response to these matters was contained in succinct submissions which are recorded as follows at 233 of the transcript:
“My submission is that when Mr Schrader went out to cut this timber and I accept that it was partly, or there was some benefit to be gained by him, but when he went out to cut this timber he was doing exactly what he had done many times before in his duties in the saw mill and that is he was cutting up waste logs which were clumped into piles. He was cutting them up in piles. But that was a system of work that was in place. That it was clearly a dangerous system for two reasons. I rely on Mr Howard‘s evidence about this. Firstly it increased the risk, not only of kickback, but of ’pull through‘. And secondly that because logs are cut in piles it would be normal for a person in Mr Schrader’s position to take up a footing that was on timber contained in the pile in order to gain access to the log being cut. In those circumstances kickback or pull through, even if there were no kickback, pull through alone could create a dangerous situation. Mr Howard‘s evidence was again largely unchallenged in that respect and quite clear. It’s not sufficient in this case to say simply that well any experienced chainsaw operator would—it would be simply a matter of common sense that you don‘t cut logs on piles because the tip of the chainsaw might touch another log or because you have got incorrect footing. Mr
Schrader’s evidence is that this is the system that he‘d employed in the sawmill for some considerable period of time to do precisely the task that he was doing on this occasion. His employer must have known that that system was in place and in circumstances where the risk of injury from contact between chainsaw and a falling operator or an operator facing a kickback situation is so obvious, it was incumbent on his employer to put an end to that system and introduce, design, implement and enforce an alternative system. And Mr Howard gave evidence about the alternative system—it may well have required the introduction of more manpower or more machinery and it’s a system that would have taken longer for the work to be performed but the alternative system was to not to cut logs in piles but to pull the piles apart and cut the logs individually on the ground. If that system had been in place and if that had occurred on the day in question and in my submission, the finding can be made that more probably than not, Mr Schrader‘s injury would not have occurred.”
I think that Mr Brett very competently encapsulated all significant considerations of law and fact in these submissions. I accept those submissions. Although not referred to by counsel, it seems to me that McLean v Tedman (1984) 155 CLR 306 is strong authority for the principles contended for, the whole of the majority judgment between 309 and 314 being relevant. This does not mean that I find all remaining particulars of negligence to have been established. On the contrary, I think that particular (d) has not been established. It was not lack of supervision which caused the accident, but an unsafe system of work.
Similarly, particular (f) cannot succeed because, as I have already found, the inoperative chain brake was not causative of the injury to the plaintiff. There was no evidence given in support of particular (g). Particulars (k), (l) and (k) [sic] must also fail, in my view. However, particulars (h), (i—(iii) and (iv)) and (j) have been established, in my opinion. The system of work adopted by the plaintiff to cut up rubbish logs and clear the yard with the approval and acquiescence of his employer, was plainly unsafe, particularly in wet weather. I therefore find in favour of the plaintiff on these grounds.
It remains to consider the question of contributory negligence, a question which was also dealt with by the High Court in McLean v Tedman (supra). The Court lacked unanimity on this issue and the majority found it a difficult issue to resolve. The question of the employee’s want of care for his own safety involved different factual circumstances there than they do in the present case.
Mr Jackson submitted that the plaintiff‘s conduct exhibited a high degree of carelessness for his own safety. What he said was this:
“… there’s room in this case for I would submit an unusually high finding of contributory negligence, very high indeed. Now the reason I say that primarily is this, that Mr Schrader stood by and watched the machine dismantled, the safety device taken off it. He was concerned about that, he didn‘t think it was the right thing to do, he knew it was dangerous and yet he used the chainsaw in circumstances where he was under no compulsion whatsoever and we know from the evidence whatever benefit the employer might have obtained from the fact that Mr Schrader sometimes cut firewood for himself in the incidental cleaning up of the mill, this was something that Mr Schrader did not have to do. He had sought and obtained permission to do it for himself and he chose the equipment that he used and he knew when he did that that he was using a piece of equipment which a major safety device had been removed, this is accepting his case of course. Now in my submission that is clear evidence of the highest level of negligence on the part of the plaintiff given that he could have simply collected his pay and left and he agreed he’d finished his
work he could have gone there was nothing to keep him there. Instead he chose to cut some firewood for himself and got permission from Mr Appleby to do so.”
As I have already indicated, I reject that part of this argument which suggests that the plaintiff was not acting within the scope of his employment. I accept that cutting scrap or rubbish timber in this way was part of the plaintiff‘s job, although he had a clear discretion as to when he would do it and, at least on the occasion when the accident happened, he sought and obtained Mr Appleby’s approval before doing so. But Mr Jackson‘s submissions do raise the undeniable issue that the plaintiff chose to do this work in wet weather using a defective chainsaw. He must have appreciated that there were risks in doing so, even though the defective brake was something he had been obliged to work with during the earlier part of the week.
The plaintiff was not performing a repetitive or simple and thus ostensibly risk free task. He was under no pressure and chose to do the work in wet conditions while the timber he was standing on was slippery and could well have been unstable. In all the circumstances, I think a finding of twenty-five per cent contributory negligence is appropriate. This finding is based upon particulars (g) and (i) of the particulars of contributory negligence raised by the defendant. The other particulars pleaded have not been made out. The plaintiff will recover judgment against the defendant for damages to be assessed, such damages to be reduced by twenty-five per cent on account of the plaintiff’s contributory negligence.
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