Sotico Pty Ltd v Green - [2003] WASCA 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SOTICO PTY LTD -v- GREEN [2003] WASCA 285

CORAM: STEYTLER J
PARKER J
PULLIN J

HEARD: 13 OCTOBER 2003

DELIVERED : 28 NOVEMBER 2003

FILE NO/S: FUL 29 of 2003

BETWEEN: SOTICO PTY LTD
Appellant
AND
ANTHONY PAUL GREEN
Respondent

Catchwords:

Negligence - Breach of duty - Damages - Part loss of earnings - Substantial body of evidence not referred to in reasons for decision - Retrial necessary

Legislation:

Nil

Result:

Appeal allowed
Retrial ordered

Category: B

Representation:

Counsel:

Appellant: Mr D R Clyne
Respondent: Mr R J L McCormack

Solicitors:

Appellant: Julian Lentzner
Respondent: Bradley & Bayly

Case(s) referred to in judgment(s):

Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139
Fox v Percy (2003) 197 ALR 201
Perre v Apand Pty Ltd (1999) 198 CLR 180
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Bowen v Tutte (1990) Aust Torts Rep 81-043
British Westinghouse Electric Company Ltd v Underground Electric Railways Company Ltd [1912] AC 673
Browne v Dunn (1893) 6 R 67
Crombie v Uniting Church in Australia Property Trust (WA) (1997) 17 WAR 291
Devries v Australian National Railways Commission (1993) 177 CLR 472
Dunn v Unwin [1963] ALR 280
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
Graham v Baker (1961) 106 CLR 340
Husher v Husher (1999) 197 CLR 138
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
New South Wales v Lepore (2003) 195 ALR 412
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Paterson v Paterson (1953) 89 CLR 212
Purkess v Crittenden (1965) 114 CLR 164
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Shorey v PT Ltd (2003) 197 ALR 410
Smith v Broken Hill Proprietary Co Ltd (1957) 97 CLR 337
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Suvaal v Cessnock City Council (2003) 200 ALR 1
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Todorovic v Waller (1981) 150 CLR 402
Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Voulis v Kozary (1975) 180 CLR 177
Wade v Allsopp (1976) 10 ALR 353
Warren v Coombes (1979) 142 CLR 531
Watts v Rake (1960) 180 CLR 158
Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

STEYTLER J: I have had the advantage of reading in draft the reasons published by Pullin J, with which I am in general agreement. For the reasons given by his Honour the appeal should be allowed, the decision of the Commissioner should be set aside and the matter should be remitted to the District Court for retrial.
PARKER J: I have had the advantage of reading in draft the reasons, published by Pullin J, with which I find myself in general agreement.
It is regrettable, but unavoidable, that the parties must proceed to a retrial.
In my view, for the reasons given by Pullin J the appeal should be allowed, the decision of the learned Commissioner set aside, and the case should be remitted to the District Court for retrial.
PULLIN J: This is an appeal against the judgment of Commissioner Greaves dated 12 February 2003. By that judgment, the appellant was ordered to pay damages of $357,059.70 for negligence of the appellant, which caused a workplace injury to the respondent.

Facts

The respondent, Mr Green, is a timber worker who was employed as a head rig operator at the appellant's timber mill at Deanmill. On 24 April 1998, Mr Green and two other workmen in the course of their employment were lifting and moving a bandsaw blade. Particulars to Mr Green's statement of claim asserted that the bandsaw weighed in excess of 100 kilograms. It transpired in the evidence that this was the weight of a new blade. The blade being changed was a blade worn after use, and as appears from the evidence referred to below a worn blade weighed considerably less – about 70 kilograms. The bandsaw, which is flexible and joined in a loop, passed over an overhead pulley wheel then passed through a slot in the floor to a pulley wheel about seven feet below the floor. The blade was removed at the end of each shift and replaced with a new sharp blade. To remove the old blade, a cradle was placed near the upper pulley wheel. The tension on the blade was then released, and two men on the floor lifted the blade slightly and shifted it across onto the cradle. A third man removed the blade from the bottom pulley. Mr Green had been doing this job for eight years. There were two bandsaws called number one and number two. The case concerned the changing of the blade on the number one saw. Sometimes during the removal process, the blade would catch or snag on the sawdust box

below the floor. There was some contradictory evidence on how often this occurred. No finding was made. However, the evidence was that this catching or snagging would occur either twice a month or twice a week.

On 24 April 1998, Mr Green and two other workmen changed and replaced the number two blade and then shifted to the number one blade.
Mr Green gave evidence about how his injury occurred, which evidence was accepted by the trial Judge. Mr Green said:
"There was a number of occasions where it didn't get there. Sometimes the saw just wouldn't go, in which case I couldn't go across because the teeth would just – would catch on something and if the saw catches, say, anywhere in the sawdust box, I have got to try and tip it across which – it won't go and I would have to call out and we would stop and redo it again, we would make sure it was loose and restart again."
The plaintiff went on to describe the events of 24 April 1998:
"I was about to lift. We got ready to lift. Just prior to the lift about – just before I grabbed the saw I looked around to make sure Roman was in position, stepped back, grabbed the saw, feet together and went to lift and then I just kept lifting. Nothing seemed to happen and then it sort of – it went and as went it was – my back sort of went ping and then - - -
… I just keep putting pressure and pressure on it until it goes, until you actually get that lift until you feel it.
… I can only assume that the saw was catching on something down the bottom.
… I just kept putting more pressure on it until it did. It happened very quickly."
Mr Green said he exerted a lot of pressure, he "supposed" 30 or 40 kilograms. He explained that once the bandsaw lifted, he moved across to the left with it and the bandsaw went onto the cradle.

The Commissioner's Reasons

It is not disputed that, so far as he went, his Honour correctly directed himself as to the law. There was no doubt that, as an employer, the appellant was under a duty to exercise reasonable care for the safety of its employees; and to guard against foreseeable but not fanciful risk of injury: Vozza v Tooth & Co Ltd (1964) 112 CLR 316 and Wyong Shire Council v Shirt (1980) 146 CLR 40.
The appellant does not dispute that it owed Mr Green such a duty. The complaint of the appellant in ground 1 concerns the finding of the Commissioner at [32] that there had been a breach of that duty. The Commissioner said:
"In this case, the [respondent] alleges in par 5(xii) of the re‑amended statement of claim that the defendant failed to regulate the extent to which the top wheel of the bandsaw could be lowered so as to prevent any risk that the teeth of the bandsaw could become snagged on the top of the scraper conveyor system or on the interior surfaces of the sawdust box. It is in this regard that the evidence of such earlier occurrences is relevant. I find on the evidence for the [respondent] the [appellant] knew or ought to have known of the potential for the bandsaw to snag on the sawdust box. It is not necessary for the [respondent] to establish that the [appellant] knew or ought to have known the precise manner in which the risk of such a snag might result in injury to the [respondent].
I find the [appellant] knew or ought to have known the risk of such a snag might result in injury to the [respondent] or another of the kind he experienced. The duty of the [appellant] to provide a safe system of work is not in issue. The issue is whether the [appellant] was in breach of its duty which requires the court to determine what a reasonable may (sic) would do by way of response to the risk. In this case, the answer is clear: modify the sawdust box and conveyor system, as the [appellant] did after 24 April 1998. There is no evidence in this case such a course was out of proportion to the magnitude of the risk and the degree of the probability of its occurrence. I find, therefore, the [appellant] was in breach of its duty to the [respondent] and I turn to consider the assessment of damages."
The appellant complains about what is revealed in the above passage, namely, that the learned Commissioner concentrated on whether it was foreseeable that the blade might snag, and having found that it was foreseeable then erred by concluding, without any reference to evidence on the subject, that the appellant knew or ought to have known that the snagging of the saw carried with it a risk of injury, and that in consequence the appellant was in breach of its duty of care to the respondent.
The appellant points to the learned Commissioner's failure to refer to the uncontradicted evidence:
(a)that in 20 years of operation there was no evidence that any injury had ever occurred to anyone from handling the bandsaw in the way it was on the day that Mr Green sustained his back injury and;
(b)that the bandsaw and the method of changing the bandsaw blade were in common use throughout the world and were recognised as a safe system given the nature of the industry.
It is true that no reference was made to this evidence in the reasons for decision. In addition, it became evident during the hearing that there was other evidence not averted to by the Commissioner. I refer to it below.
The fact that there are inconveniences associated with work, and the fact that the inconvenience is foreseeable, does not mean that any injury arising out of that inconvenience will automatically expose the employer to damages for negligence. In this case, it was clearly foreseeable that there may be inconvenience. Mr Green gave evidence, as indicated above, that when the snagging occurred they would have to stop and redo it again. Thus it is quite correct, as the learned Commissioner found, that it was foreseeable that the snagging could occur.
However, what then had to be considered was the evidence bearing on the issue as to whether or not the injury which was suffered by Mr Green and arising from this inconvenience was foreseeable, and if so what the probability was that injury might occur. In my opinion, evidence on the point was not addressed by the Commissioner. He reasoned that if the inconvenience occurred and was foreseeable, then it followed, without more, that the risk of injury was foreseeable and that the respondent had breached its duty of care. No reference was made to the relevant evidence on these points (including the evidence identified in ground 1). This evidence was too important to be ignored. It was evidence which pointed to there being a very low probability that injury would occur during the process of changing the saw blade. As a result, I consider that ground 1 is made out.
The question is then what should happen as a consequence of that conclusion. Should the case be sent back for re‑trial or should this Court decide the matter by considering the evidence which was not referred to by the Commissioner? This is an appeal by way of re‑hearing. See s 79(2) District Court of Western Australia Act 1969, s 21, and s 58 and s 59 of the Supreme Court Act 1935, and O 63 r1. As Gleeson, Gummow and Kirby JJ said in Fox v Percy (2003) 197 ALR 201 at [44]:
"A principal purpose of providing for an appeal by way of 'rehearing' is to ensure, within the appellate process, finality of litigation, correctly decided."
On the other hand, if a substantial amount of evidence has not been dealt with in a satisfactory way by the trial Judge, then a retrial may be necessary: Fox v Percy (supra), per McHugh J at [104] and footnote 113. If there is a substantial body of evidence in relation to which there may be differing views about the findings which might be made based on it, and if no findings have been made by the trial Judge, then the appeal court may, but will only rarely, carry out the fact finding exercise which the trial Judge is supposed to perform.
In this case, there was evidence, in addition to the evidence referred to in ground 1 of the appeal, which was relevant to the issue about whether the injury, as opposed to whether the snagging of the bandsaw, was foreseeable and to the question about the probability of such injury occurring. The Commissioner did not refer to this other evidence. I will refer to that evidence in a moment.
Before I do so, I should refer briefly to the law.
In Wyong Shire Council v Shirt (supra), Mason CJ said at page 47:
" … foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry."
And at page 48:
"A risk which is not far‑fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
This was a reference to what he had said at page 47, namely:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
See also Perre v Apand Pty Ltd (1999) 198 CLR 180 at 332 and Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 at [142] per Hayne and Callinan JJ.

Evidence not Referred to in the Commissioner's Reasons for Decision

I now refer to other evidence which was led by the parties in relation to the issue about foreseeability and about the probability of injury occurring.
First, I refer to the evidence of Dr Ian Gibson, who was called by the respondent. Dr Gibson holds an honours degree in science, specialising in human physiology. He inspected the timber mill after the accident and prepared a report. He described the procedure involved as he understood it, which was based on his discussions with Mr Green. He said in his report at par 4.1 that he believed certain "aspects of the task" may have presented "manual handling problems". He concluded at par 4.2 that:
"5.Notwithstanding the lack of quantitative force data and my relatively limited opportunity to observe the blade change task in progress, I believe there is sufficient information to hand to show that workers engaged on this task are exposed to a reasonable risk of sustaining a back injury."
His report then moved on to discuss "ways of reducing risk of injury". What can be seen is that Dr Gibson expressed an opinion that there was a risk of back injury but in circumstances where he acknowledged he was lacking quantitative data to support that opinion. It is surprising that this opinion found its way into evidence. However, it did, and then in his viva voce evidence Dr Gibson confirmed his report. At TS154 the following questions and answers appear in examination‑in‑chief:
"Was it possible for you in the circumstances which prevailed at the time of your inspection to measure in effect the force which the man at the tail end would have to apply to the bandsaw in order to effect that manoeuvre?---No, it wasn't.
That is, the initial lift and then the sideways movement?---No. I was just observing the procedure.
We are told that a new bandsaw weighs in the region of 100 kilos, almost exactly 100 kilos in fact?---Yes.
And that as it wears down and is sharpened over time its weight reduces?---Yes.
Did you have that knowledge?---Yes. There was some information that was provided, as I recall verbally, that they were probably around 100 kilos new and certainly got significantly lighter as wear took place and the teeth were sharpened.
Can I ask you this firstly: when a worker performs a manoeuvre such as I have described Mr Green doing, lifting with the arms at the side, the forearms extended at right angles grasping the saw so that the lift is forearm distance from the body, is that of any significance?---Well, the distance from the body – if we're looking at the stresses that might be imposed on the low back, then the distance the load is from the position of the lumbar spine – some position just above the hips but close to the person's back – then the distance in front of that point which acts as a fulcrum for a lever system is you know highly significant. The further it is in front of the person, then the more the load is going to be imposed on his lumbar spine and the intevertebral discs there.
So in a lift such as that, as the hands move out is it the case that more force is imparted on the lumbar spine?---Yes.
With in effect the same object being lifted?---Yes.
Was there anything about the layout on the tail end of the head rigs that affected the position that the man at the tail end could take up?---Well, I mean, the blade is separated from the man by a small ridge. You can see it on photograph number 6. It's like a barrier just in front of his feet there, so that forms part of the structure, the lower part of the structure, and the sawdust box, which is the opening there, it's marked to the left, so that little barrier prevents him really getting very much closer to the blade, because his feet would be up against it as he bends forward, which also is not a good thing.
Have you seen a recent report from a Mr George Adams, a mechanical engineer?---Yes, I have."
This reference to Mr Adams' report requires me to pause in the consideration of Mr Gibson's evidence to turn to Mr Adams' evidence and some other evidence. Mr Adams was called by the appellant. He was the person who supervised all design and detail drawings for the manufacture and installation of the plant at Deanmill, and was also personally responsible for supervising the design, manufacture and installation of the saw changing and transporting monorail hoists and the saw cradles.
Mr Adams also gave evidence that he had visited, inspected and studied bandsaw design and operation at hardwood and softwood sawmills throughout Australia, Europe and North America. He stated that the saw changing procedures on the Deanmill bandmills are typical of those carried out on large bandmills in Australia and in those parts of the world where he had visited, inspected and studied the machines. There was, in addition, evidence that there had been no previous instances of injury at Deanmill during the saw changing procedure.
Mr Adams also gave evidence that he visited the site and recorded quantitative information at the sawmill for the purpose of the trial. In particular, he noted that a new bandsaw had a mass of 102 kilograms. He reported that the mass of a worn saw was 71 kilograms. He then carried out procedures to determine "vertical lifts and horizontal pulls" during the transfer of the bandsaw from the top wheel to the saw cradle. He did this by using scales, and an operator carried out the operation while standing on the scales and his weight was recorded. The operator's weight was measured while not lifting the saw, and then the weight on the scales measured when the operator lifted the saw. It is not stated at the commencement of these test procedures whether the tests were carried out using a new saw or an old saw. However, at par 3.3 in the discussion of the test results on page 5 of this report, he says:
"Measurements indicate that for an almost new saw, with a mass of 101 kilograms, only 30 kilograms of vertical lift and 11 kilograms of horizontal push were required to transfer it from the top wheel to the cradle."
I infer from this that the tests were carried out by him using an "almost new" saw blade. His "first test" showed that the mean of the three lifts showed a vertical lift of 29.7 kilograms and a horizontal pull of 10.7 kilograms. So lifting a near new blade involved a person in Mr Green's position in lifting about 30 kilograms. There was no evidence about what the "vertical lift" would be when lifting 71 kilograms, but I will assume, but not decide, that it would be based on Mr Adam's evidence about 30 per cent less than lifting an "almost new" saw blade about 20 kilograms of vertical lift.

The second test he carried out involved transferring without vertical lift. This appears to me to be irrelevant on the facts in this case, and the third and fourth tests he carried out were similarly of no relevance to the issues in the case.
I now return to the evidence given by Dr Gibson. As is clear from the reference to his evidence which I have set out above, he had done no quantitative testing himself to ascertain weights and lifting forces. He was then referred to the test results arising out of the first test carried out by Mr Adams and asked "assuming those measurements to be reasonably accurate", had he anything to say about the application of a vertical lift of 30 kilograms "in the position that the tail‑end man is in". Dr Gibson then said:
"---Well, I would think that would be exposing him to some degree of risk. That's a higher figure than one finds in the literature recommended for manual‑handling lifts particularly of people with it fairly close to the body, so in terms of designing or evaluating manual handling tasks one would prefer that the operator was exerting a lower force than that."
A little later, Dr Gibson was then asked by counsel for the respondent:
"Dr Gibson, you mentioned a moment ago that there is literature about manual handling loads?---Yes.
And that 30 kilograms, I think, exceeds, you say, the recommendations in the literature?---What is commonly recommended today, yes.
What is that?---Well, it is hard to be precise, but the data that I have seen says that in ‑ if you're looking at the design of a manual handling task and you want there to be a margin of safety for the operators, then you'd be looking at something like 27 kilograms as the maximum load to be lifted which is the maximum force to be exerted in a lifting action in front of the body, particularly of your safety margin.
By in front of the body do you mean close to the body?---Yes. Yes, sorry, I should have said close; close to the chest or abdomen.
If the lift is being done with the forearms at right angles to the trunk, what impact would that have on the ‑ ‑ ‑?---Well, because you're further away from the spine, then you would be looking at recommending a lower figure. I mean, maybe 20 to 25, but I would have to do some calculations.
Yes. I appreciate that you didn't take measurements, but you were aware of the weight, the approximate weight, of the bandsaw?---Yes.
Did Mr Adams' figures sound about right to you?---Yes, I think so.
You think his measurements would be close to your - - -?---I wouldn't have any problem with them.
In the present case Mr Green has told the court that when he was in the process of making the vertical lift, his initial movement of lifting at the tail end, the bandsaw up, it snagged and wouldn't lift?---Yes.
He pulled harder?---Yes.
Until it moved and he experienced some tearing sensation in his back?---Yes.
Assuming for the moment that there was a snag, what impact – or the potential for a snag which was realised on this occasion – does that have on the system?---Well, on his back, you mean?
No, on the - - -?---On the change?
Yes?---Well, I mean, it's just going to throw the thing rather out of sort of synchronisation really if it's happened at the tail end because it won't snag possibly to the same extent at the head end, then they're going to get slightly out of sync. I think that might – well, it'd probably cause him to exert some extra force just to try to keep the thing moving. They've got to sort of get it away from where it's snagged, perhaps just by a very small amount, and then continue with the motion.
Right?---So it's going to throw out the sort of smoothness of the action.
If there is a snag in the sense that it won't be lifted and the man at the tail end applies more force to free the snag, what happens to the 30 kilogram vertical lift that Mr Adams has measured?---That would be higher because that's equivalent to adding an extra weight, extra mass.
The fact that the snag may be unexpected?---I guess if it's unexpected, then he's going to perhaps jerk harder. If it's expected, I hope he wouldn't get that far. If it's unexpected, then it gives a bit of a jolt and he would probably give an extra tug or push.
Doctor, if I could ask this firstly, leaving aside the snag for the moment, in your opinion what practical measures could be taken, if the vertical lift is 30 kilograms and that's beyond safe limits, to eliminate the need for the vertical lift or to reduce the force on the workers?---The simplest way is to have another couple of workers to lend a hand at each end, just for the initial movement, because they will be sharing the load between them."
These comments by Dr Gibson were based upon the lifting of a new bandsaw (one weighing about 100 kilograms), not one that was worn (and which would weigh about 70 kilograms).
Dr Chew was then called by the appellant. He holds a Bachelor of Engineering and PhD in Mechanical Engineering and has experience and qualification in ergonomics. His statement of evidence was tendered, in which he noted that the worn saw was about two‑thirds of a new saw blade weight. He presented evidence based on computer modelling. His opinion was that the forces involved were "acceptable, from the ergonomic perspective, to a healthy male adult worker who applies them using both hands with a (sic) upright standing body posture, with both hands at close to the front of the body and at between knuckle and shoulder heights". At AB426, he then stated under the heading "Conclusion":
"The forces required of the Plaintiff during the task of shifting the bandsaw blade from the top drive wheel onto the cradle, if the task is carried out using the Defendant's method, is acceptable from the ergonomic perspective, because the forces generated in his low back are considered to present nominal risks of injury to a fit and healthy male worker."
My understanding of the evidence is that Dr Chew did not address the effect of snagging.
In cross‑examination, Dr Chew confirmed that the "defendant's method" involved the lifting and sliding of the bandsaw. As to lifting, he was asked in viva voce evidence in cross‑examination by counsel for the respondent about the first stage of the "lift and slide method" and whether this involved taking the pressure off the top wheel. He said that it did. The following question and answer then appear at AB259:
"Did you make an assessment of how heavy that lift was?---I did not measure it but my assessment is that I estimated it to be about 20 kilo. Your Honour, that lifting component is really variable depending on different people. You can apply 10‑kilo lifting, vertical lifting. If you do that, the sliding force, the friction force will be higher because the pressure is greater between the blade and the wheel and therefore the sliding component force will be higher. Conversely, if you lift the saw blade off the top of the top wheel completely, then the sliding movement force is zero, so it's variable."
The following also appeared in cross‑examination:
"The degree of force he applies is a matter of judgment for him. Is that correct?---In the sense it is because, your Honour, it simply – put simply the forces needed to shift the saw blade off the top wheel ranges from no vertical lifting at all, just simply trying to pull it sideway to the scenario where you completely lift the saw blade off the top wheel and then just shift it across with negligible sideway forces. So you have – the vertical component in the factor varies between zero to half the weight of the saw blade.
So if the total weight of the bandsaw blade was 99 kilograms?---Yes."
I pause to mention that an objection should have been made at this point to questions about lifting a saw blade weighing 99 kilograms, but no such objection was made.
The evidence continued as follows:
"And the worker applied enough force to move the bandsaw if the top off [sic], above the top wheel?---Yes.
He would be lifting half the total weight?---That's correct.
If he was to do that lifting about 50 kilos that would not be safe, would it?---It would be acceptable if he was to do it standing upright, without rotating his spine or bending his spine and keeping his hands very close to the front of his body. If the hands were a bit too far out in front of the body, yes, then the compression forces generated in the lower spine can be considered unacceptable.
Right. So that if 25 centimetres in the position that you stood up and demonstrated earlier lifting a 50‑kilo – applying a 50‑kilo force vertically to lift the bandsaw would be unacceptable?---The calculation that I have done using the software suggests to me the 25‑centimetre scenario is still acceptable because the compression forces is still not high enough to be considered to be a problem but I would like to invite your Honour's attention to the fact that 25 centimetres is not 25 centimetres in front of the body. It's virtually about 7 to 10 centimetres in front of the body. So it's very close to the front of the body.
Yes, the position you demonstrated earlier?---Yes, that's right.
That's the 25 centimetres you're talking about from the line between your ankles?---That's correct.
If I can take you to section C(2), the annexures to the exhibit, the pages aren't numbered but can you see there's C(2) in the right‑hand corner, of one of the pages towards the back?---Yes.
There are some diagrams there?---Yes.
Now, over the page there's a sagittal plane low back analysis?---Yes. I have got that.
Where it says, 'Compression force at L5‑S1: total compression 3789'?---Yes.
What assumptions were fed into, to have that calculation emerge?---Yes. This was done for lifting, two person lifting the 99‑kilogram load; in other words, each person's supplying 49.5‑kilogram lifting force with their hands held at 45 centimetres in front of the body.
45 centimetres?---45.
So that's much further out than you – – – ?---Yes, 20 metre further out than what I demonstrated earlier on."
I observe again that the latter portion of this cross‑examination was based on the assumption that the weight of the bandsaw blade was 99 kilograms. I would also think that the reference to "20 metre" at the end of the above passage is an error (perhaps in transcription).
None of the evidence which I have set out above was referred to by the learned Commissioner. He did not make any finding about the weight of the saw when it was lifted by Mr Green, even though – as it seems to me – the weight being lifted when the snag occurred was critical to the issue about whether there was a foreseeable risk of injury or the probability of it occurring.
It is very tempting to say that if the bandsaw snagged, then the weight of the bandsaw (whatever it was) became a foreseeable hazard to health when it snagged. That temptation should be resisted, because I do not consider that such a conclusion is one which would be based on the evidence which has been led or based in commonsense. If a person lifts a light object, well under the limit for safe lifting and the object snags, it is not obvious to me that it is foreseeable that this carries with it a risk of injury. If a person is lifting an object close to the recommended weight for safe lifting, then I might readily accept an argument that there would be a foreseeable risk of injury if the object snagged, thereby inducing the person lifting to exert forces in excess of a safe force. If the saw being lifted weighed 101 kilograms, then it might have been possible to conclude that it was foreseeable that snagging could cause injury because Mr Green was on that basis lifting close to a safe weight. However, the evidence seems to be that he was not helping to lift a 101 kilogram saw. He was helping to lift a worn saw, and the evidence suggests that worn saws only weigh just over 70 kilograms.
Mr Green had performed this operation many times before over eight years and he had encountered the snagging of the blade on many previous occasions. He had not suffered injury before. As I have mentioned, there was evidence that this method had not known to have previously caused any injury in the 22 years of the saw's operation before the accident. I recognise that it is not a complete answer for the appellant to say that there was never any injury suffered in the past. Many dangerous situations can, by good fortune, not result in injury for a long period of time. However, the complete lack of any record of injury occurring would support an inference that the probability of the injury occurring was very low indeed. The evidence that the method used was one widely used in the industry, although not determinative, was also evidence relevant to the issue.
In my opinion, it is not appropriate for this Court to carry out the task of assessing the evidence and making findings for the first time. I would therefore allow this ground of appeal and direct a retrial.

Quantum

Ground 4 complains about the assessment of past economic loss. The learned Commissioner assessed past economic loss in the amount of $46,337 plus interest for past economic loss from the date of injury to trial, on the basis that the respondent had not been able to work more than "limited" hours.
The relevant facts are these. The respondent suffered his injury on 24 April 1998. The learned Commissioner then made a finding that by 24 April 2000 "at the very latest", the "plaintiff was capable of undertaking his pre‑accident employment in the varied conditions provided by the defendant and recommended by the doctors".
The respondent did do some work but did or would not work full time, and on 6 September 2000 the appellant dismissed him. The appellant submits that the respondent was dismissed because he would not work, and the respondent submits that he did not work because he was unable to do so. The respondent's submission is at odds with the finding which I have quoted above, but as will be seen in a moment it is consistent with a later part of his Honour's reasons.
In the face of the finding that the respondent was capable of working and a job was open to the respondent, the respondent had a duty to mitigate his loss and to work in the modified job.
What then is the position after 6 September 2000, which is when he was dismissed? The job was no longer open after that date because the appellant claimed it had dismissed the respondent due to the respondent's refusal to work in circumstances where the learned Commissioner had found as a fact that he was capable of doing so. The respondent's refusal to work in those circumstances would constitute a refusal to mitigate loss and would mean that the respondent was not entitled to an award of past loss of earnings.
The Commissioner, at [63], refers to the respondent's evidence about persevering for six months in his position as head rig operator, undertaking the predominately lighter duties of that position, and said:
"The plaintiff continued, however, to experience diffuse pain … There is a suggestion underlying the defendant's case that the court should infer either that the plaintiff has from the outset exaggerated his symptoms or that they were not caused by the disc protrusion. As I have observed, the evidence establishes the disc protrusion was a material cause of the diffuse symptoms the plaintiff has continued to suffer."
His Honour then calculated past loss of earnings after 6 September 2000. This latter passage from the reasons, and the award of damages for loss of earnings after 6 September 2000, must mean that his Honour here concluded that the respondent was unable to work, even in the modified job provided for him by the appellant. If that is so, then this would be a contradiction of what his Honour found in [59], namely that "at the very latest", by the second anniversary of the accident, the respondent was capable of undertaking his pre‑accident employment "in the varied conditions provided by the defendant and recommended by the doctors".
In my opinion, ground of appeal 4 should succeed, because it is impossible to know whether the learned Commissioner intended to find that the respondent was capable of working in the modified job as from 24 April 2000 or was unable to do so because of pain. It is not possible for this Court to resolve that issue. I would order that this issue be retried.
The uncertainty about whether he was fit for the job which was on offer or was unable to fulfil it because of pain, is also highly relevant to his condition for the purpose of calculating future loss of earnings. Because it is uncertain from his Honour's reasons what that incapacity was, I consider that this issue will also have to be retried.
Having reached the point where there has to be a retrial in relation to the issue of liability and a retrial in relation to an important issue of quantum, it follows that there should be a retrial of the whole case. This outcome is to be avoided where possible, but unfortunately it cannot be avoided in this case.