Stock v Exalso Pty Ltd No. Scgrg-99-907

STOCK v EXALSO PTY LTD
[2000] SASC 197

Full Court: Doyle CJ, Debelle and Nyland JJ

DOYLE CJ. I would dismiss the appeal and dismiss the cross appeal. I agree in substance with the reasons given by Nyland J.
It is not immediately obvious that the Judge rejected the evidence of Mr Delgaudio on the question of whether he was using one bucket of water or two buckets of water. But, having read and re-read the relevant parts of the reasons, I consider that that is what the Judge must have intended to do. It is unfortunate that the Judge has given no reasons for accepting Delgaudio on the other aspects of the incident in which the plaintiff was injured. However, I consider that it was open to the Judge to follow the course that he followed and that this Court should not interfere with his finding as to how the incident occurred unless persuaded that he has erred. I am not satisfied of that, even after considering the substantial points made by Debelle J. For those reasons, I agree that the findings of fact should stand, and I agree that on that basis it cannot be said that the defendant was negligent.
DEBELLE J: The facts are set out in detail in the reasons of Nyland J. As Her Honour has noted, for a trial which occupied five days, there was very little evidence concerning the incident the subject of the plaintiff’s claim.
It is unnecessary to repeat all of the facts as recited by Nyland J. I note only those relating to the incident. The plaintiff’s evidence was that, while cleaning a car, he noticed a mark along one side of the car. He grabbed a sponge and walked over and put the sponge in what he thought was a bucket of water. When squeezing out the water, he noticed foam and realised it was not water but an acid wash. The acid wash caused the plaintiff to suffer a form of dermatitis. His account of the incident was not challenged in cross-examination. Instead, cross-examination was directed to questions as to whether he noticed any smell from the contents of the bucket, and to the fact that the bucket was red and that he had been told that the red bucket was for acid wash. It was also put to him that he had been watching Mr Delgaudio using the acid wash for about 10 minutes.
Mr Delgaudio’s account of the incident was straightforward. However, it differed from the plaintiff’s account. He said that he was acid washing a car and was going to wash it down with a bucket of water. The plaintiff was to assist him washing it down. He therefore had two buckets with him, a bucket of acid wash and a bucket of water. The buckets were indistinguishable except that they differed in colour. The acid wash was in a red bucket. He was wearing gloves while doing the acid wash. He said that the plaintiff began washing the car. Only one set of gloves was available. There were, he said, sponges in both buckets. The plaintiff put his hand in the wrong bucket. That version was not challenged in cross-examination other than to suggest that Delgaudio had a grievance against the defendant company where he was no longer employed. Delgaudio denied the assertion. He said that the plaintiff knew that he was acid washing the car as the plaintiff had been watching him perform the task. The plaintiff was not wearing gloves. It was not put to the defendant that there was only one bucket, or that the usual procedure after an acid wash was to wash the car with water from a hose.
One apparent inconsistency between these two versions of the incident is that the plaintiff said he was washing a car other than the car to which Delgaudio was giving the acid wash. Delgaudio said that the plaintiff began to wash the car on which he had used the acid wash. This may be one reason why the trial judge preferred Delgaudio’s version of the events.
There was no other witness to the incident. There was, however, evidence led by the defendant from a Mr Emery that the practice was to spray the acid wash off with a hose. Mr Emery also gave evidence that on occasions there would be two buckets in the area in which the plaintiff and Delgaudio were working, the red bucket containing acid wash and another containing washing detergent but, he said, no buckets contained clear water. Mrs Newton also gave evidence that the usual practice after an acid wash was to spray the acid off with a hose.
The trial judge accepted the evidence of Delgaudio as to how the incident occurred and rejected the plaintiff’s explanation. He accepted the evidence of Mr Emery and Mrs Newton as to the practices in the workshop. The judge made the following finding which is repeated with its errors of syntax and punctuation:
“I find that, relying on the evidence of Mr Delgaudio, the plaintiff knew full well even if he was only a trainee that it was an acid wash that Mr Delgaudio was using and without gloves and apparently without any consideration for his own safety and with no way to prevent him doing such a thing he put his hands in that solution. There is an explanation given by Mr Delgaudio as suggesting that he may have done it because he was in a hurry and had forgotten momentarily, I suppose, what he was doing but I believe in all the circumstances that it would have been impossible to protect the plaintiff from doing something foolish that he knew full well at the time was something that could cause a problem.”

The finding is curious in that it almost amounts to a finding that the plaintiff deliberately put his hand in the acid wash. That is the effect both of the finding that the plaintiff “knew full well” that Delgaudio was using an acid wash and of the finding that “without any consideration for his own safety” he put his hands in the solution. The conclusion that “without any consideration for his own safety” the plaintiff put his hand in the water is not justified by either the plaintiff’s evidence or the evidence of Delgaudio. Delgaudio’s evidence amounted to no more than that the plaintiff had mistakenly and inadvertently placed his hand in the wrong bucket, evidence which the trial judge had accepted earlier in his reasons.

The gravamen of the plaintiff’s argument on appeal was that the judge had erred in finding that there was only one bucket present when this incident occurred. The judge made no express finding to that effect. If such a finding was made, it is implicit only in the fact that the judge accepted the evidence of Mr Emery and Mrs Newton that the practice was to wash acid off with a hose. One of the difficulties with this appeal is determining whether the judge, in fact, made such a finding. If he did, he gave no reasons for rejecting only this one aspect of Delgaudio’s evidence. It is, of course, open to a judge to accept one part of the testimony of a witness and reject others. But, given that the judge has unequivocally accepted the evidence of Delgaudio as to how the incident occurred, he ought to have made an express finding as to whether there was one or two buckets and, if he rejected the evidence of Delgaudio on that question, to give his reasons for doing so.
The lack of any reasons makes the task of an appellate tribunal difficult. The fact that the judge accepted both the evidence of Delgaudio as to how the incident occurred on the one hand and the evidence of Mr Emery and Mrs Newton on the other does not necessarily require a finding that two buckets were not present, particularly as Emery had acknowledged that on occasions two buckets might be present in the area in which the plaintiff was working. It was open to the judge to find that on this occasion the acid was to be washed off by hand, particularly as neither counsel for the defendant nor counsel for the third party had put to him that the practice was to wash the acid off with a hose. In this respect, it is relevant to note that the defendant’s case was that the incident did not occur and that it was not part of the plaintiff’s duties to wash motor vehicles.
Given that the judge’s findings are not based on the credibility of witnesses, and that, even though he accepted the evidence of both Delgaudio on the one part and Mr Emery and Mrs Newton on the other, this is not an appeal which can be resolved by applying the observations in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Given the findings of the trial judge as to the credibility of witnesses, this Court is in as good a position as the trial judge to determine the issues and reconcile whatever differences exist. While the court will be naturally reluctant to differ from the trial judge on a question of fact, the court must bear in mind that it is required to re-hear the cause and to form its own conclusions upon the evidence: Coghlan v Cumberland [1898] 1 Ch 704 approved in McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) (1904) 1 CLR 243 at 277; Warren v Coombes (1979) 142 CLR 531 at 545; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 per Kirby J at 323 – 326.
As the plaintiff and Delgaudio were the only witnesses to the incident, and as the trial judge has accepted Delgaudio’s account of how the incident occurred, I find that there were, in fact, two buckets which were standing close together in the area in which the plaintiff and Delgaudio were working. While the usual practice may have been to wash acid off with a hose, that does not mean that Delgaudio did not, on this occasion, decide to wash the acid using a sponge in water from a bucket. The fact that the plaintiff mentioned only one bucket in his evidence does not require a contrary conclusion. His evidence focussed on the bucket containing the acid wash and how he came to put his hand in it. He did not need to address the question of a second bucket. Neither did his evidence preclude the existence of a second bucket. The extract from his cross-examination recited by Nyland J in her reasons does not, with respect, assist since the cross-examiner was endeavouring to establish that the plaintiff knew that a red bucket contained acid wash. Furthermore, commonsense points to the conclusion that Delgaudio was correct when he said there were two buckets. The plaintiff had been watching Delgaudio use the acid wash. He knew the acid wash was in the bucket. It strains credulity to breaking point to conclude that, had there been only one bucket, the plaintiff put his hand in it. This was the kind of inadvertent act which would occur only if there were two buckets. Thus, I find that there were two buckets close together on the floor in the area in which Delgaudio and the plaintiff were working and the plaintiff put his hand in the wrong bucket.
The question then remains whether the defendant had failed to exercise due care and had failed to provide a proper system of work. The acid wash was of sufficient strength that it could irritate the skin. It was placed in a red bucket and employees were instructed to that effect. Employees using the acid wash were instructed to wear gloves. The plaintiff had been instructed at a training program on these issues.
This accident occurred because the plaintiff mistook one bucket for another. In rejecting the plaintiff’s evidence, the trial judge would have rejected his evidence that he did not know that acid wash was contained in a red bucket. Although the plaintiff knew that fact, common experience indicates that it is all too easy, through inadvertence or a moment’s inattention, wrongly to choose between two alternatives. Had the bucket been clearly marked in a way to indicate it contained acid wash, the plaintiff might have realised that he was about to place his hand in the wrong bucket. More significantly, the bucket could have been fitted with a hinged lid enabling it to be readily used but at the same time alerting a would-be user to the fact that it contained acid wash.
The defendant is not required to ensure that the system of work was accident proof but it is obliged to guard against unreasonable or unnecessary risks: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 – 26; Retsas v The Commonwealth (1975) 50 ALJR 104. That duty required more than instruction, warnings and the placing of acid wash in a red bucket. It is not a safe system of work to rely on different coloured buckets. Instead, the defendant’s duty required that the bucket containing the acid wash be clearly marked and, more desirably, be fitted with a hinged lid. In this way, the risk of injury by inadvertence would be noticeably reduced, if not eliminated.
For these reasons, the defendant is liable to the plaintiff for negligently failing to provide a safe system of work.
However, the evidence shows that the plaintiff was guilty of contributory negligence. He had been watching Delgaudio apply the acid wash from the bucket and he knew that the red bucket contained acid wash. Had he taken reasonable care, he may have avoided the accident. I find that he is guilty of contributory negligence. I would apportion his responsibility as being one half.
I agree with Nyland J for the reasons she gives that the cross-appeal as to damages should be dismissed. The trial judge assessed damages in a total sum of $48,338.71. Reducing that sum by one half results in a total award of $24,169.35.
For these reasons, I would allow the appeal, set aside the decision of the trial judge and, in lieu thereof, order that the defendant pay the plaintiff damages in the sum of $24,169.35. It will be necessary to hear the parties as to costs and interest.

NYLAND J: This is an appeal against an order of a District Court judge. The plaintiff sued his employer for damages for an injury arising out of an accident at work. The plaintiff failed on the issue of liability and has appealed against the dismissal of his claim. Although the judge dismissed the plaintiff’s claim, he assessed damages for the plaintiff’s loss in the event that he was later found to have erred with respect to the question of liability. He assessed damages in the total sum of $48,338.71, which included the sum of $40,000 for loss of future earning capacity. The defendant has lodged a cross-appeal against the award with respect to loss of future earning capacity.
There was no dispute about the plaintiff’s history leading up to the day of the accident. At the date of trial he was aged 34 years. He left school at about the age of 15 years. From about the age of 18 until 28 he had a history of criminal offending with convictions for a number of dishonesty offences as well as offences relating to marijuana. As a result of his offending he had served various times in custody. He had, at times, undertaken employment in a relatively unskilled jobs but appears primarily to have been in receipt of unemployment benefits. Eventually the plaintiff decided to reform his criminal behaviour. Through the Commonwealth Employment Service he obtained a traineeship with the defendant company Exalso. Exalso traded under the names of Adelaide Tru Seal and Nordic Car Care. Adelaide Tru Seal was involved in the sale and application of Tru Seal, which was a paint protection system applied to vehicles. Nordic was a business concerned with detailing used cars in preparation for sale. Both businesses operated from the same premises but were physically apart and operated independently with separate personnel.
The plaintiff was put to work at Tru Seal. In the division in which the plaintiff was placed, the employees were occasionally required to acid wash cars. This involved the use of a sponge to apply an oxalic acid solution to the exterior of the cars. This solution served to remove small rust particles from the paint work. The acid solution was then washed off with ordinary tap water.
The plaintiff started work on about 28 August 1995. He had a one week training program which included safety issues. He was shown how acid wash was mixed and told that the acid wash bucket was not to be left lying around. He was told that the bucket was to be used for acid wash only. The plaintiff’s duties were to assist the permanent employees in his division. At or about the beginning of October 1995, the plaintiff was working with a man called Salvatore Delgaudio. Mr Delgaudio was using acid wash on a car. There was no dispute that an incident occurred in which the plaintiff took a sponge, plunged it into the bucket containing the acid wash and then wrung out the sponge with his bare hands, thereby covering them with acid solution. The final result of the acid solution coming into contact with the plaintiff’s hands was to cause a permanent skin condition called contact dermatitis. The judge accepted that as a result of that condition the plaintiff could no longer engage in occupations in which his hands would be in chemicals or get wet.
At the trial, the plaintiff gave evidence on the issue of liability. In addition, there was evidence from Mr Delgaudio, Mr Hassan, the former managing director of Exalso, Mrs Newton, the manageress of the Tru Seal division and Mr Emery, the chief supervisor of the Nordic car detailing section of the workshop. Mr Delgaudio and the plaintiff were the only two people present when the incident occurred. There was, however, a marked divergence in the evidence of each of them as to what occurred on the relevant date. The present appeal arises out of the findings made by the trial judge as to how the accident occurred.
Despite the importance of these events to establishing the plaintiff’s claim, there is a surprising paucity of evidence from both the plaintiff and Mr Delgaudio as to what actually happened. The trial occupied about five sitting days and about half of that time appears to have been taken up with the evidence of the plaintiff. The evidence of the plaintiff occupies about 209 pages of transcript, yet only about 15 pages deal with the incident itself. Counsel for the defence appear to have been preoccupied with challenging the plaintiff’s credibility on the basis of his prior criminal and work history, rather than getting to the bottom of what actually occurred on the day in question.
In any event, the plaintiff’s evidence was that on the relevant day, he was cleaning a car in the Tru Seal section of the workshop. He noticed a black mark running from a rear window of the vehicle. He grabbed a sponge and walked over and put his hand in what appeared to be a bucket of water to clean the sponge. When the sponge foamed up he realised the bucket contained acid wash rather than water.
Mr Delgaudio’s evidence was also relatively brief. Mr Delgaudio said that he was acid washing a car and the plaintiff was working nearby. He said he had a bucket of acid wash and a bucket of water. The acid wash bucket was red but he could not remember the colour of the other bucket. There was nothing to distinguish the two buckets apart from the colour of the acid wash bucket. He saw the plaintiff plunge his hands into the acid wash and wring the sponge out, following which he cried out in pain. Of significance, Mr Delgaudio said that the plaintiff knew that he was acid washing the car at the relevant time and that he was watching and waiting for him to finish.
The question of whether there was one bucket or two, as claimed by Mr Delgaudio, is of critical importance to the determination of the negligence of the defendant.
The trial judge examined the evidence of the witnesses in some detail in order to make findings as to how the accident occurred. The evidence of both the plaintiff and Mr Delgaudio is confusing. This obviously created a difficulty for the trial judge in resolving the disputed matters and led to some findings which, prima facie, appear to be inconsistent. It also creates a problem in determining the issues raised on appeal. The judge said he accepted the evidence of Mr Delgaudio as to how the incident occurred and rejected the plaintiff’s explanation. Hence the judge accepted that the plaintiff was standing around for approximately 10 minutes watching Mr Delgaudio apply acid wash to the car. The judge rejected, however, the evidence of Mr Delgaudio that there were two buckets present when the incident occurred. The judge said that he accepted the evidence of Mrs Newton, Mr Emery and Mr Hassan as to the practise and circumstances of the set-up of the business. Mr Emery’s evidence was that the practise in his section was to spray the acid off with a hose. He said there were occasions on which there would be two buckets in the general area, a red one which contained acid wash and another containing car washing detergent, but there were never any buckets of clear water around so that you could put your hands into it without gloves.

Mrs Newton said the acid wash when mixed was placed into a thick red heavy bucket. The normal procedure was for it to be hosed off with water at the end of the treatment. She said there was a hose facility within the shed which was available for everyone to use.
The evidence of Mr Hassan does not particularly help in resolving the issue as to the number of buckets but he confirmed that Mr Emery and Mrs Newton were the people in charge of their respective sections and had the responsibility of ensuring that appropriate training was given to new employees.
The judge found, therefore, that the only evidence that there was a bucket of water present for rinsing off the acid was that of Mr Delgaudio. All the other evidence was that the acid was washed off with a hose.
The judge found that “the plaintiff knew full well that it was an acid wash that Mr Delgaudio was using and without gloves and ... apparently without any consideration for his own safety, and with no way to prevent him from doing such a thing, the he put his hands in that solution.”
Mr Ward, who appeared for the plaintiff on the hearing of the appeal, submitted that the judge had erred by rejecting the evidence of Mr Delgaudio as to the existence of two buckets, while accepting his evidence as to other matters. On the basis that Delgaudio’s evidence as to the two buckets was correct, he argued that the system of work was defective. If two similar buckets containing two similar looking liquids, one with water and the other with a dangerous substance, were left side by side in a busy workplace, sooner or later someone, particularly a trainee working under pressure, was going to make a mistake and plunge his or her ungloved hands into the wrong bucket as happened on this occasion.
In my view, this submission would have some force if the evidence established that there were two buckets next to each other, and identical, except as to colour, with one containing acid wash and the other containing water. The judge appears, however, to have rejected the evidence of Mr Delgaudio as to the existence of two buckets, as he said the evidence of Mr Delgaudio was the only evidence that there was a bucket of water there for rinsing off the acid from the red bucket. Significantly, at no stage in the evidence did the plaintiff say that there were two buckets. The plaintiff’s evidence was (p 74):
“Q.    You told us how you had gone and got a sponge.
A.     Yes.
Q.     And then you, what, walked around the car.
A.     Like the front of the car.
Q.     You saw the bucket.
A.     Yes.
Q.     Clearly visible.
A.     The bucket, yes, I walked around it.” [emphasis added]
Then at p 102:
“Q..... It was a red bucket, wasn’t it, that the acid wash was contained n.
A.It was a bucket.
Q...... It was red, wasn’t it.
A.I don’t know the colour. It was a bucket, a household bucket unlabelled.
Q...... You know it was a red bucket, don’t you.
A.No.
Q...... Because you were told on more than one occasion that that red bucket was the bucket that was used for acid wash.
A.No, we weren’t.
Q...... Never.
A.We got told once a bucket was used for acid wash.
Q...... You were told when you started that the red bucket was the bucket for acid wash, weren’t you.
A.A bucket.
Q...... The red bucket.
A.Can’t recall what colour, a bucket.
Q...... Sal told you that, didn’t he, that the red bucket was used for acid wash.
A.No.
Q...... You had stood there for ten minutes watching him dip the sponge into the acid wash while he washed down the car with acid wash, hadn’t you.
A.No.
Q...... And you then went straight away and put your sponge in the red acid wash bucket, didn’t you.
A.No, I put the sponge in a bucket.
Q...... In a red bucket, correct.
A.Don’t know what colour, it was a bucket.
Q...... A bucket that you had been told was always the bucket for acid wash, correct.
A.No.”
Although this cross-examination is primarily directed at the colour of the acid wash bucket, it is surprising that the plaintiff did not take the opportunity then or at any other time in his evidence to mention the presence of a second bucket. The evidence of Mr Emery and Mrs Newton, which was accepted by the trial judge was that a red bucket was used for the acid wash and the procedure was to spray it off with a hose. The trial judge obviously disbelieved the evidence of the plaintiff that he had not been told that a red bucket was used for acid wash. The judge found that the plaintiff was aware that acid wash was being used. He had watched Mr Delgaudio applying it for about 10 minutes. The plaintiff had been involved in training as to safety precautions, which included the manner of dealing with the acid wash and where to place it when not in use. Although you would not expect the plaintiff to put his hand into an acid solution, the evidence of Mr Delgaudio suggests they were in a hurry. The solution also appears to have been relatively weak. Mr Delgaudio said that although it was desirable to wear gloves, on occasions when he had got some on his skin, he had rinsed it off under a tap without difficulty. According to Mr Emery the manufacturer’s instructions on the label of the product did not indicate gloves should be worn when using it, but simply warned against prolonged contact with skin. The judge found that for the plaintiff “to do as he did would cause no problem for most people”.
Mr Delgaudio, Mr Emery and Mrs Newton, all referred to the acid wash bucket being red. There was no evidence as to any other markings on the bucket, but it was never suggested to any of the defendant’s witnesses that identification of the bucket by colour only was inadequate or that it should have carried a label or some other form of marking to distinguish it from other buckets. In any event, there is nothing to suggest that in this case a label would have made any difference, given the plaintiff’s assertion that he did not even notice the colour of the bucket. There was no evidence to establish that the defendant was obliged to do any more than to warn the trainee plaintiff in the use of the substance and to keep it in an appropriately marked bucket, which in this case was identified by the colour red.
In Devries v Australian National Railways Commission 177 CLR 472 the High Court said (at 479 per Brennan, Gaudron and McHugh JJ):
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. See Brunskill (1985), 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989), 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ Brunskill (1985) 59 ALJR at 844; 62 ALR at 57.”
In this case, the trial judge had the benefit of seeing the witnesses and making his assessment as to their credibility. He specifically rejected the evidence of Mr Delgaudio as to the existence of two buckets. It would have been helpful for the judge to have articulated more clearly his reasons for accepting part of Mr Delgaudio’s evidence and rejecting the rest of it, but I think it is obvious that he rejected Mr Delgaudio’s evidence about the second bucket, on the basis of his acceptance of the evidence of Mr Emery and Mrs Newton as to the usual practise in the workshop and the lack of any other evidence, including that of the plaintiff, that there was a second bucket in use. On the basis that there was only one bucket as found by the trial judge, the judge was entitled to find that the defendant had fulfilled its obligations towards the plaintiff and that the plaintiff had been entirely responsible for his injury. I am not persuaded that there is any basis to interfere with the judge’s findings of fact. In my opinion the appeal should be dismissed.
In considering the assessment of the plaintiff’s damages, the judge was confronted with a difficult task. After leaving Tru Seal the plaintiff had obtained abattoirs work which he enjoyed and where he wore gloves on his hands. The plaintiff lost his abattoirs job as a result of being involved in a motor vehicle accident in which a pedestrian was killed and serving a further term of imprisonment. The judge found if that accident had not occurred, the plaintiff might well have continued at the abattoirs job. Prior to the accident, however, the plaintiff had only ever worked for short periods. The judge accepted that the plaintiff was susceptible to contact dermatitis and would therefore continue to be at risk from other contacts and would be obliged to use gloves.
In the circumstances, this was not a matter which was capable of any precise mathematical calculation, and it is understandable that the judge took a broad axe approach to the assessment. I would therefore dismiss the cross-appeal.

[2000] SASC 197

29 June 2000