Sheridan v Borgmeyer

[2006] NSWCA 201

New South Wales

Court of Appeal

CITATION:	Sheridan & Anor v Borgmeyer [2006] NSWCA 201 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 June 2006
JUDGMENT DATE:	14 June 2006
JUDGMENT OF:	Beazley JA at 1; Santow JA at 43; Tobias JA at 44
EX TEMPORE JUDGMENT DATE:	06/14/2006
DECISION:	1. The appeal is dismissed; 2. The appellants are to pay the respondent’s costs of the appeal, such costs to be on an indemnity basis from 2 February 2006; 3. The cross appeal is allowed. I set aside the verdict of $361,459.90 ordered by the trial judge; 4. Verdict for the respondent in the sum of $439,072.57 together with interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) in the sum of $39,516.53 making a total sum of $478,589.10; 5. The appellants are to pay the respondent’s costs of the cross-appeal and to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.
CATCHWORDS:	DUTY OF CARE – failure to provide guardrail around shearing platform – foreseeable risk of injury from falling from platform – obviousness of risk of falling from platform nullified by circumstances of the accident – reasonable response to risk was to provide guardrail around platform – breach of duty - CAUSATION – whether guardrail would have prevented injuries – question of fact – the finding that a guardrail would have restrained the respondent’s fall was open to the trial judge – no error - CONTRIBUTORY NEGLIGENCE – whether trial judge erred in not finding respondent contributorally negligent – no error - DAMAGES – claim for past and future gratuitous care services – evidence at trial of respondent’s need for services – failure of trial judge to give adequate reasons for rejecting claim
LEGISLATION CITED:	Civil Liability Act 2002 (NSW) ss 5F, 15 Civil Procedure Act 2005 (NSW) s 101
CASES CITED:	Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Robert Sheridan & Helen Sheridan (Appellants) John William Borgmeyer (Respondent)
FILE NUMBER(S):	CA 40484/05
COUNSEL:	M L Williams SC; J B Turnbull (Appellants) J E Maconachie QC; N E Chen (Respondent)
SOLICITORS:	McCabe Terrill (Appellants) Paul J Keady & Associates (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 922/05
LOWER COURT JUDICIAL OFFICER:	Walmsley DCJ
LOWER COURT DATE OF DECISION:	18 May 2005

CA 40484/05

BEAZLEY JA
SANTOW JA
TOBIAS JA

Ex tempore 14 June 2006

ROBERT SHERIDAN & ANOR v JOHN WILLIAM BORGMEYER
Judgment

1 BEAZLEY JA : The respondent was injured on 27 October 2000 when, whilst working as a shearer in shearing sheds owned by the appellants, he fell from a platform in the appellants' shearing shed known in the industry as a shearing board. He injured his back and suffered other injuries in the fall.

2 The respondent brought proceedings against the appellants alleging that they were negligent, essentially, in failing to provide a safe place of work. The appellants were not his employers. The respondent was employed by a person by the name of Murray Slater. It appears proceedings were not brought against the employer.

3 The trial judge found that the appellants were negligent on the basis that a reasonably prudent occupier, in their position, would have placed a guardrail around the platform, upon which the respondent was carrying out the shearing work. His Honour observed that the platform, which was almost 0.8 metres high and was about 1.7 metres in depth, was such that a fall, from such a height, was quite capable of causing severe injuries. His Honour further found that the first appellant was aware of the risk that a fall from the platform could cause such injuries and had known that for more than a couple of decades. His Honour found that the appellants were 75 per cent liable to the respondent as a result of their negligence, and that the employer was 25 per cent responsible. There is no appeal against the finding of apportionment.

4 The appellants' appeal against his Honour’s finding of liability, first on the basis that there was no breach of duty and secondly, on the basis that the respondent had not established that the accident was caused by the negligence, if any, of the appellants. The appellants also challenge his Honour’s finding that the respondent was not himself contributorally negligent.

5 The respondent had been a shearer for nearly the whole of his working life. He took a break from that occupation for some years but returned to shearing in late 1995. In September 2000, he commenced undertaking some shearing work at the appellants' property.

6 It was the respondent’s practice to use a harness whilst he was undertaking shearing work. A harness was a device used by some shearers in the industry but was not compulsory in any way, nor was it a universal practice for shearers to use it. However, many shearers tended to wear a harness, as it gave them some support while they were bearing the load when shearing the sheep. The harness is secured from above and most shearing sheds accommodate the provision of these harnesses by having an overhead truss, to which the harness can be attached. The practice is that a shearer will attach the harness to the truss before commencing the shearing work. The truss was described in some detail by his Honour in para 9 of his judgment. Essentially, it consisted of a piece of piping which contained within it a moveable smaller piece of piping, able to move to the left and right to enable the shearer himself to have movement whilst he undertook the shearing work.

7 The platform itself was described as being a "U" shape. A set of metal steps were installed which were about 1.5 feet wide at the far end of the "U". On the morning of the respondent’s accident, he was standing on the platform in order to carry out the shearing. He commenced to attach his harness to the truss but found that it was stiff and difficult to move. He gave it a light tug in order to release it. That did not succeed. The respondent, accordingly, gave the truss a harder tug. The truss became un-jammed suddenly and the respondent went backwards and fell over the edge of the platform. He landed on his back, hitting the platform with his back on the way down. His right foot became stuck or entangled between the top step of the steps near the platform and the edge of the platform itself.

8 The respondent’s case was that a guardrail should have been provided around the perimeter of the platform, so as to ensure that the platform was reasonably safe from which to carry out the work and, in particular, so as to provide some protection against a possible fall from the platform to the floor.

9 The appellants contended before the trial judge and contend again here that they were not in breach of their duty of care to the plaintiff. They submitted that there were a number of factors which militated against there being any such breach of duty. First, they contended that it was not the usual industry practice for platforms to be guarded by a rail. They relied upon the respondent’s own evidence that he had worked in about 100 sheds, of which a total only of about 15 had guardrails around the platform. They further relied upon the evidence of an expert witness, a Mr Black, who is a director of Shearing Industry Consultants, who gave evidence that, in his experience, it was uncommon for shearing sheds with raised platforms to have guardrails around the perimeter of the platform. He said that the presence of guardrails could be a disadvantage or an obstacle or hazard, because it would require more care and awareness to avoid during the frantic working pace that is common in a busy shearing shed. He re-emphasised this point in his report when he said that guardrails were uncommon due to the interference they have with the workflow and efficient running of the main working area of the shearing shed. He added that if a guardrail was in place, it needed to be high enough not to interfere with the working capabilities of all the shearing shed staff while they were doing their respective jobs. This comment would appear to be directed, at least in part, to the need for the rouseabouts to be able to clear the platform of wool, on a fairly continuous basis, as the shearing was being undertaken.

10 The appellants further relied upon the evidence of Mr Hutchinson who was a grazier and a part-time shearing trainer and had been inducted into the Shearer’s Hall of Fame. He gave evidence that any impediment to the performance of work in the shed, particularly that of rouseabouts, by the provision of a guardrail would be slight or minimal. However, the appellants contended that that evidence was of little value because Mr Hutchinson said that although he had seen guardrails in about 50 per cent of sheds that he had either worked in or visited, he never, at any stage, gave any indication of how many sheds that was and to the extent that he did give any evidence, he said that his visits to a variety of different sheds was somewhat restricted.

11 The appellants further relied upon the fact that the respondent had never fallen before from a platform, nor was there any evidence of anyone else having fallen from a platform.

12 The appellants further relied upon the fact that the risk of injury from falling from the platform was obvious and that was a matter to be taken into account in the determination of whether or not the appellants were liable. They relied, in particular, upon the provisions of s 5F of the Civil Liability Act 2002 (NSW) (the Civil Liability Act ).

13 In my opinion, there was no error in the trial judge’s finding that there had been breach of duty.

14 In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, Mason J in a well-known passage said this:
“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.”

15 In this case, there was ample evidence upon which his Honour could conclude that a reasonable person would have foreseen that the failure to provide a guardrail would have involved a risk of injury to a person working on the platform. As the trial judge pointed out, the platform was about 0.8 metres high. It is a matter of common sense that a fall from that height could cause injury. To the extent that that may have been obvious, so as to call into play the provisions of s 5F of the Civil Liability Act , senior counsel for the appellants accepted that the question of obviousness of the risk is only one factor to be taken into account.

16 In this case, whilst it was obvious that a person would injure themselves in a fall from the platform, the dynamics of the accident were such that the tug on the malfunctioning truss caused a sudden movement by the respondent so that any obviousness of the potentiality of a fall was, in effect, nullified. Accordingly, the mere fact that it was obvious does not, in my opinion, take away from the basic proposition that there was a foreseeable risk of injury.

17 The first appellant also conceded in his evidence, that he recognised that there was a possibility of a risk of someone falling from the platform and sustaining injury. Indeed, in an earlier emanation of the shearing shed, he had placed a guardrail around the platform. He had not replaced it when he was rebuilding the shed after a fire because the shearers were hitting their heads on the guardrail when shearing. That, however, does not eliminate the foreseeability of the very real risk that attended the failure to provide a guardrail or other form of protection around this platform.

18 In Wyong Shire Council v Shirt , Mason J added to the passage to which I have referred, that if the answer to the question posed there be in the affirmative, it is for the tribunal of fact to determine what a reasonable person would do by way of response to the risk. A reasonable response to the risk, in this case, was the provision of a guardrail. Not only was that a reasonable response, it was in fact dictated by the Australian Standards: see Australian Standard 1657-1985. The trial judge properly referred to this in his judgment, noting that whilst the Australian Standards do not have to be complied with as they are without legislative force, they are a factor to be taken into account in determining whether or not there has been negligence. His Honour considered that they were relevant here and it was open to his Honour to do so.

19 According to the Australian Standards a guardrail should have been provided. In the circumstances here, where the evidence established that there was no impediment of any significant kind to the carrying out of the work within the shed, including the work of the rouseabouts, he failure to provide the guardrail was evidence of negligence. Accordingly, there was no error in his finding for breach of duty and accordingly, the grounds of appeal which relate to that issue should be rejected.

20 The appellants contend that even if negligence was established, any such negligence was not causally related to the injuries sustained by the respondent. The appellants' principal case, at trial and on appeal, was that the accident occurred in circumstances where the respondent fell directly backwards down the steps, having caught his right foot between the top step and the platform. They submitted that in that case, and as was apparent on his Honour’s finding, any guardrail that ought to have been provided would not have extended across the top of the steps and it could not be said that the failure to provide a guardrail caused the respondent’s injuries.

21 At trial, the respondents’ counsel conceded that if it was established that the respondent had fallen backwards down the stairs, then causation had not been established.

22 Accordingly, the first step in determining whether this ground of appeal has been made out, is to determine if there was any error in the trial judge’s finding that the respondent did not fall down the stairs. His Honour’s finding, in that regard, is at para 16 of his judgment. His Honour said:
“Though it was put to the plaintiff in cross-examination that he had fallen down the stairs, he denied that. I accept his evidence … that he did not.”

23 The appellants contend that this finding in itself contained error because there was no denial by the respondent that he had fallen down the stairs.

24 It is correct to say that there was no direct denial of this proposition. However, the respondents’ evidence was, consistently, that he had fallen back off the platform and that his right leg had become caught between the top step and the rim of the platform.

25 The appellants contended that, notwithstanding that was the way the respondent had put his case, the clear effect of his evidence was that he had fallen backwards down the steps. They rely, in particular, upon the following passages in cross-examination. The respondent was shown a photograph of the platform and the steps and he was asked, “And you fell, you said, near the step?”. The respondent agreed. He was then asked “Now when you fell, did you fall down those steps?”. He answered “I fell – first of all, that rail wasn’t there on those steps”. That was a reference to a rail which was now shown at the side of the steps in the photograph. The question was put to him again, “Did you fall down the steps?”. He answered “I got my legs hooked in them”. He was asked “Well, whereabouts was your right leg when you fell?”. He answered “My right leg, I don’t know where my right leg was but I’m saying to you my right leg went down between the step, the top rung of that step and the board”. He agreed that he was not quite sure what happened after the truss came free. He was asked “Where did you end up, to your recollection?”. He answered “On the floor”. He was asked “And do I take that the top of your body was somewhere on the floor near the bottom of those steps?”. He answered “Correct”. He was asked “I think you said you had a period of unconsciousness?”. He agreed. He was asked then a short question about that and then this question was put. “Do you recall being in that position, that is with your right foot caught under the board, between the top step and the board, and your body at the bottom of the stairs, do you recall that as being the case before you apparently passed out?”. He answered, “Yes, that is correct, that was only a very short period of time”. The appellants contend that that is clear evidence by the respondent that he fell backwards down the stairs. With respect to the submission, I do not think that is so. The cross-examination, up to that point, had been proceeding quite specifically, on the basis of a series of questions that his body had ended up near the bottom of the steps. In the last question, to which I have referred, the question changed to it being put to him that his body was at the bottom of the stairs.

26 That question involved a double proposition in any event. The answer is equivocal and appears to be a direct response to the last part of the question, that is, that he had passed out after he had fallen. In my opinion the question is not sufficiently direct, nor is the answer sufficiently unequivocal to conclude that the trial judge erred in his finding that the respondent did not fall down the steps. The shift in the question from the line of questioning being pursued up to that point was not put clearly enough to the respondent to amount to an admission by him. It is against all the other evidence in the case which quite clearly was to the effect that he had fallen near the steps, but with his right leg being caught in the steps. Accordingly, in my opinion there was no error in the trial judge's finding in relation to the place where he had fallen and how he had fallen, that is by falling off the platform and not backwards down the stairs.

27 Senior counsel for the appellants informed the Court that the causation question was significantly bound up with that particular finding. As I understood the submission he said that if he was able to establish that the respondent had fallen backwards down the steps, causation would not have been established. As I have already indicated, that was conceded in any event.

28 As this submission developed, senior counsel for the appellants then referred to another finding of the trial judge on causation in para 17 of the judgment. His Honour had earlier made findings about the guardrail. He said a guardrail could have been provided across the front or it also could have returned along the arm of the "U" up to the steps. His findings on causation then followed that same train of reasoning. He said:
“I find the [respondent] would probably have grabbed the rail had it ended on the corner, and he would have been restrained by it by falling against it had it run along the end as well.”

29 Senior counsel for the appellants contended that his Honour's finding that the plaintiff would probably have grabbed the railing had it ended on the corner was speculation. It was certainly not an inference that was open on the evidence. There may be some merit in this submission, but in my opinion it does not matter. His Honour's alternate finding on causation was clearly open to him. That is, that if the railing had turned along the arm of the "U" up until the steps, then the respondent would have been restrained by it, by falling against it.

30 In my opinion, that finding was open to his Honour even if the respondent was at the time that he was on the platform in effect straddling a portion of the platform which extended along the opening of the steps as well. In those circumstances I am of the opinion that his Honour's finding on causation was open and those grounds of appeal are also rejected.

31 That brings me to the question of contributory negligence. It was submitted on behalf of the appellants that his Honour was in error in finding that the respondent was not contributorally negligent and submitted that a finding of at least 50 percent should have been made. This was an accident which happened in the course of undertaking an activity where a piece of machinery gave way unexpectedly. In those circumstances, I am of the opinion that it has not been established that the respondent failed to take reasonable care for his own safety, and his Honour's finding of contributory negligence should be upheld. Accordingly, I would dismiss the appeal with costs.

32 The respondent brought a cross-appeal based upon his Honour's failure to award damages for past gratuitous attendant care services beyond one year and for failing to award such damages for the future. The underlying basis for this ground of appeal was that his Honour had failed to give adequate reasons for rejecting the respondent's claim for past and future gratuitous attendant care services.

33 For the purpose of the cross-appeal I will continue to refer to the parties as appellants and respondent as I have so far.

34 The respondent's claim for gratuitous care services was that from the time that he had undergone a back operation in May 2002, he required attendant care services of between seven and eight hours per week. Those services included immediately post operative additional care such as assistance with showering and the like, but that thereafter he needed care each week. For example, assistance with putting on his socks and with other aspects of his dress and assistance about the home and the garden.

35 His wife gave evidence in which she said that she provided that care for six to eight hours per week. There was medical evidence which clearly supported that claim, being the evidence of Dr Lewis and Dr Long. Dr Long, in a report of 25 October 2004, gave evidence that considering the respondent's impairment it was reasonable that he receive up to 12 hours domestic assistance each week. Dr Lewis, in a report dated 2 October 2004, gave evidence that he considered that the respondent required 10 to 12 hours a week in domestic assistance.

36 His Honour accepted the respondent’s complaints of disabilities. He also said that he accepted his complaints as to his needs " for at least past domestic care ". He noted that it was rare for there to be accurate evidence about times involved in domestic care claims. His Honour then found that as to the past care, that the accident was the sole cause of need for care in and around the home and garden and that this need which arose was about seven hours per week for a period of a year. He allowed therefore the statutory amount of $19 per week making a total allowance of $6,916 for the past. He made no award for the period up to the date of trial beyond that one year period, nor did he make any award for the future, save for an amount for lawn mowing. He did not give any reasons as to why he confined the claim for services to a period of one year, nor did he give any reasons as to why he did not make any such award for the future. Nor did his Honour explain why he allowed the claim for lawn mowing services but not for other aspects of the claim for attendant care services.

37 The respondent submitted that the medical evidence supported his case that his medical condition had plateaued at about the time or shortly after the time of the operation and that there was no evidence of a deterioration in his condition. His evidence at trial was that he continued to need and in fact received those additional care services from his wife. In those circumstances it was incumbent upon his Honour to give reasons why he only made the award for a closed period of one year, which in the manner in which the case was run, was clearly for the year following the respondent's back operation in May 2002.

38 In his submissions, senior counsel for the appellants advanced numerous reasons why his Honour may have come to that decision. Again, with respect to senior counsel who was putting all matters that he could on behalf of his client, the more reasons he put the more speculative the matter became. That underscored the appellable failure of his Honour to give reasons. That failure having been established it is open to this Court to itself determine the matter, because this is not a matter which was credit based and senior counsel for the appellants did not oppose that course being taken.

39 In circumstances where the doctors were not challenged as to the need for continuing domestic assistance, where there was no evidence to the contrary and where the respondent's own evidence and that of his wife was for a continuing need, I am of the opinion that the award should have been ongoing at the same rate as his Honour found for the year immediately following the operation. There is one qualification to that. His Honour made a separate allowance for lawn mowing that was provided to the respondent. His Honour observed in that regard that he had been paying $7.50 per hour to have his lawns mowed and that that has been continuing. His Honour made an allowance of about half an hour a week for that.

40 It would seem therefore that the allowance for future care should be an allowance of six and a half hours from May 2003 up to trial and into the future.

41 Having reached that conclusion, it is not necessary for me to enter into an issue raised as to whether or not s 15 of the Civil Liability Act requires that there be a threshold requirement that must be satisfied as from the date of hearing. In a decision of this Court in Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 that view was taken. Mr Maconachie did not seek leave to re-argue that decision because he said that on the respondent's case it was not necessary to do so. As this will be a matter which will undoubtedly be revisited by this Court from time to time, it is appropriate for me to record my doubt as to the correctness of that decision. I say no more than that. We have not had considered argument on the matter and we have not had time to give considered reflection to it. McGregor’s decision has not been directly challenged, and even on the view taken in McGregor , the respondent would have been successful on this claim. Accordingly, I would allow the cross-appeal with costs.

[Discussion]

42 The orders I will propose are as follows:


1. The appeal is dismissed;

2. The appellants are to pay the respondent’s costs of the appeal, such costs to be on an indemnity basis from 2 February 2006;

3. The cross appeal is allowed. I set aside the verdict of $361,459.90 ordered by the trial judge;

4. Verdict for the respondent in the sum of $439,072.57 together with interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) in the sum of $39,516.53 making a total sum of $478,589.10;

5. The appellants are to pay the respondent’s costs of the cross-appeal and to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.


43 SANTOW JA : I agree.

44 TOBIAS JA : I agree with the orders proposed by the presiding judge for the reasons that she has given. Notwithstanding the comprehensiveness of those reasons I would wish to add the following comments purely because it seems to me that the decision in this appeal is one that will have some resonance within the shearing industry.

45 It would appear from the evidence and from the judgment of the trial judge that for some years now it has been common for shearing boards in shearing sheds to be raised above the surrounding floor of the sheds by approximately 800 millimetres. It would also appear that as a consequence of the nature of the shearing task that, as in the present case, the area of the board allotted to each shearer is approximately 2700 millimetres in length by 1.7 metres in width.

46 The purpose of the relatively narrow width of the shearing board and its height above the general floor level of the shed is to minimise interference between shearers on the one hand and shed workers or rouseabouts on the other, so as to allow the latter to gather up the fleece that has been shorn from a sheep by standing on the shed flor so as to avoid bending down and being able to reach forward at waist level to collect the fleece from the board in a manner which does not cause unnecessary fatigue or injury to their backs.

47 The problem that results from these benefits to the rouseabouts is that it is patently clear, and as was acknowledged by the appellants, that a shearing board so designed and without any guardrail around it gives rise to a foreseeable risk of a shearer overbalancing and falling from the board to the floor of the shed. In the language of Mason J in Shirt , to which the presiding judge had referred, this risk is neither far-fetched nor fanciful. The evidence of Mr Black, to which Beazley JA and the primary judge have referred, indicates that as far as the industry is concerned, guardrails are the exception rather than the rule in shearing sheds with raised shearing boards.

48 The presence of such guardrails was said by Mr Black to constitute a disadvantage and/or an obstacle or hazard which would require care and awareness to avoid during the frantic working pace of the workers in a busy shearing shed. Mr Black further went on to indicate that guardrails are uncommon on raised boards due to their interference with work flow and the efficient running of the main working area of the shearing shed, being the shearing board. It was Mr Black’s view that shed staff were often required to climb up onto the shearing board to pen up sheep or to sweep wool or retrieve stain and sometimes mop up liquid in the form of urine et cetera which cannot be reached from the floor of the shed below. Accordingly, if a guardrail was to be put in place, according to Mr Black it needed to be high enough above the floor of the shearing board not to interfere with the working capabilities of the shed staff while performing their respective jobs.

49 On the other hand it is clear, as Beazley JA has pointed out, that the Australian Standard requires in relation to a raised working area such as a shearing board that it have a guardrail around its edge unless it is at a level not greater than 300 millimetres above the adjacent floor. That guardrail is required by cl 3.2.1.1 of the Australian Standard to be continuous around the sides and ends of the platform except at points of access from the stairway. The design of such a guardrail is to be such that at the very minimum the top rail should be supported by posts and parallel to the floor at a vertical height of not less than 900 millimetres above the edge of the raised platform.

50 The evidence in the present case, and the findings of the primary judge, indicate that a guardrail located some 900 millimetres above the floor of the shearing board would not interfere with the work of the rouseabouts in reaching forward to collect and remove the fleeces that have been shorn from the sheep. Commonsense would also seem to bear this out. In my view, such a guardrail would not in any way prevent a rouseabout (and in fact may assist a rouseabout) in obtaining access to the floor of the shearing board for the purposes of clearing it of other material that requires their presence on the board itself and which cannot be achieved from the floor of the shed.

51 Because of the necessity for the rouseabouts to reach across the board for the purposes of gathering up a recently shorn fleece, the width of the board has had to take that activity into account and has resulted in a board of a width of only 1.7 metres, as in the present case. Although such a width is no doubt the norm, nevertheless when one considers the setup and the position of the shearer when shearing sheep using the overhead machinery that is available, the board is relatively narrow. This increases the risk of a shearer for one reason or another overbalancing and falling off the edge of the board onto the floor.

52 In these circumstances, the Shirt balancing task referred to by Mason J in that case (at 47) requires, as the presiding judge noted, 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 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.”


53 In a case such as the present, as the primary judge made clear, the risk was of such a magnitude that it could result in serious injury or have the likelihood of causing serious injury to the person who fell from the board onto the floor, as was sustained by the respondent in the present case.

54 The degree of its occurrence may be low, but it does not follow from that fact that the risk is unlikely to occur or that it is otherwise not foreseeable. The primary judge also found that the expense of erecting a guard rail of the nature of that required by the Australian Standard or at least by cl 3.4.1(a) of that standard would not involve any expense of any significance.

55 The issue of inconvenience was dealt with by the primary judge in the manner to which I have referred. It is clear that there is little if any substance in the suggestion that the provision of such a guard rail would in any way unduly interfere with the efficiency of the other shed hands or rouseabouts in terms of the performance of their duties with respect to the and or other matter on the shearing board that they are required to remove.

56 In these circumstances it seems to me that this case will have some significance in terms of the appropriate design and construction of raised shearing boards in shearing sheds. This case also indicates that this Court has imposed on a shearing shed owner not only a duty of care (which in this case was not contested) but has also made clear that, absent some exceptional circumstances which would otherwise militate against it, the foreseeable risk of a shearer or other person falling from the raised board requires as a reasonable response by that owner the installation of a guard rail of the nature of that to which I have referred and which generally complies with the Australian Standard.

57 For the foregoing additional reasons I agree that the appeal by the owners of the subject shearing shed should be dismissed and I agree with the other orders proposed by the Presiding Judge.

**********

24/07/2006	-	Removed incorrect page no. - Paragraph(s) 1
03/08/2006	-	Judgment date incorrectly entered - Paragraph(s) Coversheet and first page