Tas Pallets Pty Ltd v Schrader, Grodeon Patrick John
[1999] TASSC 64
•4 June 1999
[1999] TASSC 64
CITATION: Tas Pallets Pty Ltd v Schrader [1999] TASSC 64
PARTIES: TAS PALLETS PTY LTD
v
SCHRADER, Gordon Patrick John
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 61/1998
DELIVERED ON: 4 June 1999
DELIVERED AT: Hobart
HEARING DATES: 8 March 1999
JUDGMENT OF: Crawford J, Slicer J, Evans J
REPRESENTATION:
Counsel:
Appellant: P A Griffits
Respondent: M J Brett
Solicitors:
Appellant: Griffits & Jackson
Respondent: Rae & Partners
Judgment ID Number: [1999] TASSC 64
Number of paragraphs: 42
Serial No 64/1999
File No FCA 61/1998
TAS PALLETS PTY LTD v GORDON PATRICK JOHN SCHRADER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
EVANS J
4 June 1999
Orders of the Court:
Appeal dismissed
Serial No 64/1999
File No FCA 61/1998
TAS PALLETS PTY LTD v GORDON PATRICK JOHN SCHRADER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
4 June 1999
Whether the respondent was acting in the course of his employment at the time of the accident and whether the appellant owed him a relevant duty of care
Grounds 1 and 3 raise these questions directly. Ground 5 is associated with them, for it concerns the failure of the learned trial judge to give weight to a statement by the late Stewart William Appleby, upon which the appellant relied as establishing that at the time of the accident the respondent was not acting in the course of his employment. Ground 4 is also involved. It complains that his Honour expressed no reasons for his conclusion that Mr Appleby's statement carried little weight.
The accident occurred shortly before 12 noon on Friday, 15 May 1992 at the appellant's sawmill where the respondent was employed. That day he was due to work from 7.30am until 12 noon. Mr Appleby, who was the owner of the appellant, made a written statement about the events to a loss assessor on 3 February 1993. The statement was admitted into evidence. Mr Appleby died before the trial. In the statement he explained that during the morning the respondent had been using a chainsaw "cutting logs on the landing/skidway at the Mill". The statement continued:
"Around 11:50am, Schrader came to me and said he had finished cutting the logs on the landing and asked if it would be alright if he cut some of the waste timber around the Mill to take home for firewood.
I told him that it would be alright, I knew that he had collected some timber over the back of the Mill which needed to be cut up and would be suitable for firewood.
I allowed Schrader to cut the wood for himself during working hours because it helped clean up around the Mill.
After speaking with Schrader I went home to get the pays, the men are paid at knock off time each Friday.
While I was away, the accident occurred, when Schrader was using the chainsaw he stumbled, lost his footing and his left wrist went over the blade of the chainsaw.
He was working by himself, under his own Supervision. I didn't provide any instruction as the cutting of the timber for firewood was not part of his working duty, although I reconfirm I was pleased that he was cutting the timber and cleaning up around the mill.
Ever since starting working at the Mill in September 1989, Schrader has been using a chainsaw, he was a competent operator, he could handle a chainsaw without any difficulty.
He received additional on the job training from me, I explained to him at times how he should cut the timber and other safety aspects."
It can be seen that Mr Appleby said that the cutting of the timber for firewood was not part of the respondent's working duty. The appellant relied heavily on Mr Appleby's statement for that reason.
The oral evidence of the respondent was the only other evidence about the question and I will refer to his evidence in some detail. He had been employed by the appellant for about five years. The basic operation of the sawmill was to saw timber and make pallets from it. In addition it dealt with waste timber and sold sawdust and occasionally firewood. Log trucks delivered logs to the mill three or four times a day, on average. Either the respondent or the truck driver would unload them. Each delivery could consist of fifteen to twenty logs. It was the duty of the respondent to cut the logs into appropriate sizes before they were taken into the mill for processing. Usually he would cut off the bottom ends (the "slubbens", as he called them) to make them "nice and flush" and he would cut the top ends off where the logs tapered down until they were too small. He would then cut the remaining logs into lengths of eight or twelve feet. If a log was too thick for the saws in the mill, he would split it open. All of this work was done by him with a chainsaw. A loader then took the logs into the mill for processing into pallets. The waste timber (I presume from the mill itself) was subsequently put on pallets and sold. From time to time the respondent helped out in the mill if there was a staff shortage, but his principal duties were undertaken in the yard. He said that twenty-odd people worked in the mill who had nothing to do if logs were not kept up to them. It was therefore imperative that logs which came into the yard were cut quickly by him and processed through the mill.
The respondent said that some logs were not fit to go through the mill. For example they might be rotten or too dry. Whatever the reason, they were put on one of two piles in the yard and it was the respondent's task to deal with them. Mainly he would cut them up into firewood for the use of employees, including himself and Mr Appleby. Some of them were not even fit for firewood and would be burnt. The bottom ends of the logs (the "slubbens") and the heads of the logs, which he had cut off, were also used for firewood. They had to be removed anyway, because otherwise they got in the way and could cause damage to machinery and vehicles if allowed to remain in the yard. He was the only employee charged with the task of cleaning up the yard and the cutting of the timber into firewood was part of the cleaning up process. He did not cut the unwanted timber into firewood at any specific time, just in between all his other jobs, whenever he could, whenever he had spare time. He used one of the chainsaws provided by the appellant. As he sawed timber for the purposes of firewood, he would split it if that was required. Once cut into firewood, "it would be either taken, depending who it was for or it would be left there until somebody wanted it", or sometimes it would be stolen. It was put to the respondent in cross-examination that the cutting of firewood was not part of his normal duties. He insisted that it was. He said that he was required to clean up the timber that was getting in the way. It had to go somewhere and it went either to himself or to other employees to be taken home as firewood. He denied that it was something he did outside working hours.
The day of the accident was a Friday and on Fridays work stopped at noon. He started cutting the firewood at 11.45am. (There was evidence that he suffered his injury at about 11.55am or shortly before noon.) Because he had finished his other work he was in fact free to leave, but he decided that he would cut up some firewood for his own use and he asked Mr Appleby if he might do so. Mr Appleby agreed. The respondent obtained the chainsaw, which he had been using most of that morning, and commenced to cut up the firewood. The following passage of cross-examination occurred:
"When you went off at almost noon on that day to cut the firewood, you were cutting that wood for yourself, weren't you? … That's correct.
And this wasn't something that you were required to do? … To cut the wood?
Yes? ... I was required to clean up the timber that was getting in the way, the scrap timber.
But this wasn't something you had been told to go and do by Mr Appleby or anybody else, was it? ... No, I was never told to do anything at all really. Basically I was in charge of my job and I did basically as I pleased unless there was any specific requirements that the mill needed.
But you have already agreed with me I though [sic] this morning that you asked Mr Appleby permission to go and cut the wood? ... I did ask him, yes. I said, 'Do you mind if I cut that wood at the back of the mill there', he said‑
For firewood? ... For firewood, yep, that's right.
He said, 'No, that's fine, that's all right'? ... Yes, he said, 'Fine'.
He knew that you'd finished your work for the day? ... Yes. I wasn't going back until the Saturday to clean up.
So come back to my point, it wasn't something that anybody directed you to do as part of your job that day? ... Mr Appleby did not come up to me and say, 'Max, I want you to clean those logs up', no, he didn't."
The material findings of the learned judge were:
"I am fully satisfied that the plaintiff was acting within the course of his employment with the defendant at all relevant times. The fact that he may have benefited from cutting up rubbish logs is of little, if any, significance, in my opinion. Mr Appleby's statement that this was the prime purpose for what the plaintiff was about carries little weight. I accept the plaintiff's evidence that this was a more or less regular practice in which he engaged from time to time to clean up the mill yard and remove hazards from the mill environment. The fact that he sought and obtained Mr Appleby's permission to do so on the day of the accident is a neutral circumstance, in my view.
…
As I have already indicated, I reject that part of this argument which suggests that the plaintiff was not acting within the scope of his employment. I accept that cutting scrap or rubbish timber in this way was part of the plaintiff's job, although he had a clear discretion as to when he would do it and, at least on the occasion when the accident happened, he sought and obtained Mr Appleby's approval before doing so."
With respect, I regard what was said by the learned trial judge about the question as correct. The respondent's evidence was detailed and he was subjected to cross-examination. It is clear from his evidence that one of his duties under his contract of employment was to keep the yard clean. No other employee had that task allocated to him. One of the ways in which the respondent went about that task was to cut timber into firewood for the use of the appellant's employees, including Mr Appleby and the respondent. Clearly he was acting within the scope of his employment when he was cutting timber which was to be used by other employees, including Mr Appleby. There is no justification for concluding, in the factual circumstances of the case, that when cutting timber into firewood which was to be used by himself he was acting outside the scope of his employment. The evidence established that the cutting of the firewood assisted the operations of the appellant and was done by the respondent during working hours. The appellant's saws were used to do that work. There is no evidence that it was ever done outside working hours. The fact that on a relevant occasion, the respondent stood to benefit from his labours was, as his Honour found, of little significance, when regard is had to the fact that other employees, including Mr Appleby, frequently benefited from such work on other occasions. His Honour's comment that Mr Appleby's statement that the respondent's prime purpose on that occasion was to provide himself with firewood carried little weight, was justified. I find no fault in his Honour's view that the seeking of Mr Appleby's permission to cut firewood that day is a neutral circumstance. It is my experience that employees frequently seek a superior's approval before a new task is undertaken, and to do so does not necessarily lead to the conclusion that the task is not part of the duties to be performed under the contract of employment.
The learned trial judge did not say that all of Mr Appleby's statement carried little weight. What he said was that Mr Appleby's statement that the respondent's prime purpose was cutting firewood for his own use carried little weight. Adequate reasons were given for saying that. His Honour found that the cutting of firewood was a more or less regular practice in which the respondent was engaged from time to time to clean up the mill yard and remove hazards from the mill environment and that the mere fact that the respondent was to be the user of the firewood cut on this occasion carried little weight. It should also be noted that Mr Appleby's statement could not be subjected to testing by cross-examination and the learned judge was entitled to give more weight to the respondent's evidence on the topic which was not weakened by cross-examination.
I conclude therefore that the learned trial judge was correct when finding that the respondent was acting within the course of his employment at the material time. It follows that the appellant owed him a relevant duty of care, one which included the taking of reasonable care to prevent him suffering injury and to provide a safe system of work.
Whether the respondent's position on the logs caused the injury and resulted from an unsafe system of work
The learned trial judge's findings included the following. The respondent took an 064 chainsaw to one of the piles of discarded timber. It had been raining quite heavily that day and the pile of timber was wet. He stood on top of one log and commenced cutting another log at a slightly higher level and in front of him. As he did so he experienced "pull through", which is a phenomenon which can occur when the bottom edge of a moving chainsaw catches on some obstruction beneath the chain bar. The respondent lost his balance and started to fall forward. As he did so, he put out his left hand and the inside of his left wrist came in contact with the moving chain. That finding was made notwithstanding the respondent's evidence that he regarded as ludicrous the suggestion that he simply fell forward with his left hand so that his wrist came in contact with the chain. It was his evidence that as he fell forward the saw kicked back causing the chain to hit his wrist. The learned trial judge rejected that a kick back of the saw occurred.
The appellant does not challenge the findings of fact to which I have just referred. What it does challenge are to be found in grounds 2, 6, 7 and 8 of the appeal:
"2His Honour erred in finding that the Respondent's injury resulted from an unsafe system of work.
…
6His Honour erred in drawing the inference that 'pull through' of the chainsaw which put the Respondent off balance occurred because of the position adopted by the Respondent on the pile of logs.
7His Honour erred in drawing the inference that the Respondent's footing on the logs was unsound.
8His Honour erred in drawing the inference that the Respondent's position on the pile of logs increased the risk of falling or overbalancing in the vicinity of the moving saw chain."
The learned trial judge found that the following particulars of the allegation of negligence were proved:
"(h)Failed to provide a safe system of work, in particular a system whereby any logs to be cut by chainsaw were to be first positioned so that each log could be cut in circumstances where the tip of the chainsaw bar was not able to come into contact with any other object, including another log, and further or in the alternative the operator of the chainsaw was able to adopt a balanced stance on a firm, level, non-slip surface whilst operating the chainsaw.
(i)Failing to ensure that the Plaintiff received adequate training in the following principles of operation of a chainsaw:
…
iii) That he must not stand on other logs whilst operating the chainsaw,
iv)That he must adopt a balanced stance on firm level ground whilst operating the chainsaw.
(j)Failing to instruct the Plaintiff observe [sic] the safety requirements referred to in paragraph (i) hereof."
The respondent was an experienced chainsaw operator. He had used a chainsaw prior to 1985, although to what extent was not revealed by the evidence. He did about two weeks work with a chainsaw when working for R J Eastley & Sons and for the period of five years from 1987, during which he was employed by the appellant, he worked with a chainsaw virtually every working day. He agreed with the suggestion that when working for the appellant he used a chainsaw almost constantly. He regarded himself as a competent chainsaw operator. He agreed that Mr Appleby held him in fairly high regard and considered him to be a very good worker. He had not received any formal training in the use of a chainsaw while working for the appellant, nor was he given any instruction as to how he should go about the task of cutting waste wood for firewood.
As mentioned earlier, it was found by the learned trial judge that at the time of the accident the respondent was standing on top of one log, cutting another log at a slightly higher level in front of him. Two photographs of the material pile of logs were in evidence. At the hearing of the appeal it was an admitted fact that the photographs showed the scene and the cut which the respondent had made in the relevant log, but he was unable to identify from the photographs on which log he was standing, and there was no other evidence which established that. The photographs show that most of the logs in the pile were essentially oblong in shape, with flat rather than rounded sides because their sides had been sawn off. The uppermost side of a log immediately to one side of the log he was cutting appears to have been virtually flat and level. The uppermost side of the log on the other side however, although flat, appears to have been tilted at an angle. If the respondent had been standing on that log, his toes would have been lower than his heels as he used the chainsaw. However, on which of the two logs he was standing, cannot be determined.
The respondent's evidence as to his stance was that he had his feet slightly apart. One foot was not forward of the other because, he said, there was not much room. He described the surface of the log he was standing on as "a bit corrugated". He guessed its diameter at about three feet maybe. To cut the log he was in fact cutting, he said he could not stand on the ground because he would have had to lean too far to reach over the intervening log. He said it was therefore "easier to stand on the front log and then cut". Why he did not simply cut the front log while standing on the ground was not investigated with him. When sawing he felt himself being pulled forward. The following passages of evidence occurred:
"I only felt the actual pull I didn't see what caused the pull.
Felt it? … Yes felt the forward motion.
And that pull caused you to stumble? … Yes to go forward, that's right.
You lost your balance? … That's correct, I was in a forward motion.
You lost your balance and you fell forward, correct? … Yes.
Towards the chain? … Yes.
And you put out your hand? … Mm.
…
You do agree that contact by the underside of the saw chain with another object - with an object while you're cutting another object will cause the saw to pull? … Pull forward, yes.
Pull forward. And it's that pull forward that you experienced? … Yes, I did, yes.
And it's that pull forward that you experienced that threw you off balance? … Yes.
Caused you to stumble? … Sorry.
Caused you to stumble? … Yes.
And caused you to take you [sic] off the bar and put it out in front of you as you fell forward? … Yes."
The respondent's evidence was that the logs were wet, but as to whether it was slippery on the logs, he answered: "Oh, it wasn't that bad actually, they were pretty dry but I suppose, yeah, it would have been a little bit slippery, I guess." He was then asked whether slipping caused him to fall onto the chain. His response was: "I did slip forward but I didn't slip as in falling in a great big heap. I was more off balance than anything but I did slip forward, yes. It did put me off balance." In a statement made ten days after the accident he said: "I slipped and fell forward, I put out my left arm to try and push myself away from the saw, but the saw cut my wrist as I fell. It all happened so quick that I still had my finger on the throttle of the saw." In evidence he added that there had definitely been a "kickback" by the saw, but that was rejected by the learned judge.
Evidence was given by Mr Gregory Howard, a very experienced chainsaw operator and instructor. He was the head chainsaw trainer at Hollybank Forestry Centre and an accredited assessor with the Tasmanian Forest Industry Training Board. He was shown the two photographs of the pile of logs where the accident occurred and said:
"Quite obviously to cut logs when they're stacked in a pile like that is an unsafe practice and it is said by industry that you just don't do it that way. The main reason for that is one of the requirements to safely cut a log is that you need a balanced stance. A balanced stance requires you to be on a firm surface, a firm, non-slip surface and to be [sic] to place or spread your legs appropriately so that you can stop yourself from being pulled forward or pushed backwards in the event of a kickback situation or a pull through or a push back situation."
He added that "the safest way to cut a pile of logs like that is to simply unstack them with a piece of machinery and put them out so that you can (cut) them individually… on the ground." From the aspect of a trainer or instructor of chainsaw operators he said:
"Well in a training situation we simply wouldn't do it because it would be deemed as [sic] dangerous situation. If we were working in a sawmill and conducting training there, we would instruct the operators of the machines or get them to unstack the logs for us and we would instruct trainees not to stand on logs or to cut logs that are stacked up in a pile."
Mr Howard's evidence about those matters was not challenged by the appellant's counsel in cross-examination and no evidence was called which contradicted it. It ought to have been accepted.
The learned trial judge said that the evidence did not show that the respondent was incompetent. Although he may have taken risks from time to time, he regarded himself as being generally very experienced and competent. He held no certificate of competency and had received no formal training. His evidence was that "I basically taught myself". Whether he knew that it was hazardous to stand on a pile of wet logs whilst cutting other logs did not appear directly from the evidence. Notwithstanding that, the learned trial judge expressed himself as prepared to infer that the respondent was aware that such a practice would provide an unsound footing with a consequent increased risk of danger, either from falling or overbalancing in the vicinity of a moving saw chain.
It was further found by the learned judge that when the respondent went to cut the timber he was doing exactly what he had done many times before in the course of his duties at the sawmill, that is he was cutting up waste logs which were clumped into piles. It was his uncontradicted evidence that the piles were never separated out before the logs were sawn for firewood. The evidence therefore established that at the time of the accident he was performing his duties in accordance with the system of work which was in place. His Honour found that it was clearly a dangerous system. Pull through alone, when standing on a pile of logs, could create a dangerous situation. Mr Howard's unchallenged evidence about that was clear. His Honour agreed with the submission of the respondent's counsel that it was not sufficient to simply say that an experienced chainsaw operator, as a matter of commonsense, would not cut logs in piles. The learned judge found that the appellant must have known of the system in place. The risk of injury from contact with the moving chain of a saw was obvious and his Honour held that it was incumbent on the appellant to put an end to that system and to implement and enforce an alternative system, that of requiring that piles of logs be pulled apart so that the logs could individually be cut on the ground. It was more probable than not that the respondent would not have suffered his injury had that system been in place.
It was submitted by counsel for the appellant that if, as was inferred by the learned judge, the respondent was aware that the system of work he was employing provided an unsafe footing, then there was no need for the appellant to tell him that. He already knew it. (He was found contributorily negligent.) Nevertheless, it is clear from McLean v Tedman (1984) 155 CLR 306 that it was the duty of the appellant to take account of the possibility that its employees might act inadvertently and negligently and to take reasonable care that a safe system of work was in place. There was a foreseeable risk of injury in the existing system of work and the appellant was not entitled to shelter behind the fact that its employee was aware of the risk. The employer's duty includes taking reasonable care to not only provide a safe system of work but also to maintain and enforce such a system. McLean v Tedman at 313.
It was further submitted for the appellant that its breach of duty, in the sense just discussed, was not proved to have caused the respondent's injury in that the accident was not shown to have occurred because the respondent was standing on a log or on anything other than a firm, level, non-slip surface. Even on flat ground, it was submitted, pull through could occur with a consequent risk of injury. The appropriate response to that submission is as follows. Two particular risks arose out of cutting the timber while it was in a pile. The evidence firstly established that to stand on a log while using a chainsaw increased the potential for the operator to slip, or make it more likely that he would be pulled off balance in the event of a pull through occurring, and secondly, that with a log being cut in close proximity to other logs, there was an increased danger that the blade of the chainsaw would come into contact with a log other than the one being sawn with consequent kickback or pull through, the latter tending to pull the operator forward towards the revolving blade of the chainsaw. I agree with the submission of counsel for the respondent that having regard to all of the evidence in this case, the learned judge was entitled to infer, on the balance of probabilities, that had the respondent been standing on firm level ground with a balanced stance, cutting an individual log with no danger of the chainsaw coming into contact with any other log, he would not have suffered his injury. There was in fact evidence that the saw did come into contact with a log other than the one the respondent was intending to cut. I also agree with the respondent's counsel that it was not necessary for the learned judge to determine precisely whether the accident happened because of unsound footing, the chain coming into contact with a second log, or a combination of both factors. It was sufficient for his Honour to conclude on the balance of probabilities that had the respondent been standing on firm level ground, cutting a log with no danger of the chainsaw coming into contact with another log, he would not have suffered the injury.
For these reasons I would dismiss the appeal.
File No FCA 61/1998
TAS PALLETS PTY LTD v GORDON PATRICK JOHN SCHRADER
REASONS FOR JUDGMENT FULL COURT
SLICER J
4 June 1999
The respondent was employed by the appellant at its sawmilling plant. His duties included the selection, preparation and loading of logs for milling and the removal of unwanted timber from the immediate working area. The respondent was permitted, in unoccupied time, to cut unwanted timber into firewood which was then available to employees generally. On the day of the accident, a Friday, it was the practice for work to cease at noon. The respondent had completed his allocated duties shortly before and obtained the permission of the mill owner to cut firewood. In doing so, he was injured. The timber was wet and in the course of the use of a chainsaw there occurred a "pull through" caused by the bottom edge of the chain catching on an obstruction. As a consequence, the respondent lost balance and, as he put his left hand out to prevent a fall, the chainsaw "kicked back", causing injury to his wrist.
The learned trial judge found negligence on the part of the employer in that the appellant:
"(h)Failed to provide a safe system of work, in particular a system whereby any logs to be cut by chainsaw were to be first positioned so that each log could be cut in circumstances where the tip of the chainsaw bar was not able to come into contact with any other object, including another log, and further or in the alternative the operator of the chainsaw as able to adopt a balanced stance on a firm, level, non-slip surface whilst operating the chainsaw.
(i) …
(iii) That he must not stand on other logs whilst operating the chainsaw.
(iv)That he must adopt a balanced stance on firm level ground whilst operating the chainsaw.
(j)Failing to instruct the Plaintiff to observe the safety requirements referred to in paragraph (i) hereof."
The finding of negligence was made on the basis "… not [as a result of] lack of supervision … but an unsafe system of work." The learned trial judge concluded at 17 that:
"The system of work adopted by the plaintiff to cut up rubbish logs and clear the yard with the approval and acquiescence of his employer, was plainly unsafe, particularly in wet weather."
That conclusion was open to the learned trial judge on the basis of the evidence placed before him. His Honour was not unmindful of the responsibility of the respondent and reduced any award of damages by 25 per cent on account of the respondent's contributory negligence.
The grounds of appeal claim error in that:
"1His Honour erred in finding that at the time of the Respondent's accident the Respondent was acting in the course of his employment with the Appellant.
2His Honour erred in finding that the Respondent's injury resulted from an unsafe system of work.
3His Honour erred in finding that the Appellant owed the Respondent a relevant duty of care at the time the Respondent sustained his injury.
4His Honour expressed no reasons for his conclusion that Mr Appleby's statement carried little weight.
5His Honour failed to give weight or sufficient weight to Mr Appleby's statement.
6His Honour erred in drawing the inference that 'pull through' of the chainsaw which put the Respondent off balance occurred because of the position adopted by the Respondent on the pile of logs.
7His Honour erred in drawing the inference that the Respondent's footing on the logs was unsound.
8His Honour erred in drawing the inference that the Respondent's position on the pile of logs increased the risk of falling or overbalancing in the vicinity of the moving saw chain."
Much of the hearing of the appeal involved an attempt by the appellant to re-argue its case. The fact that a different approach could have been taken to a particular piece of evidence is not a proper basis of appellate review. The decisions of the High Court in Morris v R (1987) 163 CLR 454 and Devries v Australian National Railways Commission (1993) 177 CLR 472 do not require an appellate court to hear the case as if it were being heard at first instance. Whilst an appellate court is required to review the evidence, it is not required to intervene simply because the primary court or tribunal could have reached a conclusion favourable to an appellant. The approach is that required by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 (see also Effem Foods Pty Limited v Lake Cumbeline Pty Limited [1999] HCA 15 14 April 1999)
Course of employment
The accident occurred shortly after noon, the time at which practice permitted employees to leave the mill. The issue raised by this appeal is not whether the injury occurred outside of the accepted hours of work, but whether it arose in the course of the performance of a duty or accepted work practice. It clearly did. Given that it was part of the respondent's duty to remove unwanted timber and to keep the loading and operating area free of obstruction, it follows that there was a need to dispose of the material once it had been removed from that area. That process could have been achieved by burning, further removal or transformation. The fact that it could be cut for firewood for the use of employees and that the respondent gained advantage by reason of the practice is irrelevant to the issue. The act in question was a work related task, incidental to production, which was known to and approved by the employer. Had the accident occurred at a later time whilst the respondent was still involved in loading the wood, the employer could not contend that because the accepted practice was the cessation of work at mid-day, there was no relationship giving rise to a duty of care. The appellant contends in ground 5 that the learned primary judge failed to give sufficient weight to the statement of the owner William Appleby. The learned trial judge gave more than sufficient attention to that evidence. Mr Appleby was deceased by the time of the hearing and a statement, previously made by him to an insurance assessor, was tendered. In that statement he stated:
"Around 11:50am, Schrader came to me and said he had finished cutting the logs on the landing and asked if it would be alright if he cut some of the waste timber around the Mill to take home for firewood.
I told him that it would be alright, I knew that he had collected some timber over the back of the Mill which needed to be cut up and would be suitable for firewood.
I allowed Schrader to cut the wood for himself during working hours because it helped clean up around the Mill."
The issue was not one involving the payment of award rates based on time, but whether, at the relevant time, the employer owed a duty of care. The acceptance and necessity of a "cleaning up" operation incidental to production, came within the relationship of employer and employee, and that relationship gave rise to the existence of a duty of care. That being so, it remained for the learned trial judge to consider the extent of that duty and whether there had been a breach.
Two further answers may be made to this ground of appeal. The first is that there was sworn evidence, tested by cross-examination which indicated the existence, acceptance and extent of the work practice. The learned trial judge accepted the respondent as a credible witness and was entitled to act on his evidence. The second involves an analysis of the evidence contained in Mr Appleby's statement. He stated that the respondent had requested permission to cut the waste timber at 11.50am and that:
"After speaking with Schrader I went home to get the pays, the men are paid at knock off time each Friday.
While I was away, the accident occurred, …"
It is a reasonable inference that the employees remained at the mill until they were paid. It is a reasonable inference that they were permitted to remain on the premises. The conduct of the respondent, seen in that context, permits the conclusion that he engaged in activity beneficial to both employer and employees alike, whilst he awaited "knock off time", although he was not required to engage in such activity. His conduct was that of a diligent employee, whose prescribed duties had been completed, engaging in general "finishing up" or "cleaning up" tasks. Grounds 1 and 5 of the notice of appeal are not made out.
Existence of duty
The existence of duty does not rest wholly on the finding of an employment relationship as of the time of the accident. The employer was aware of the work related practice, Mr Appleby had left the work site to collect the pays and was aware that the employees would remain at the site. Mr Appleby permitted the use of his machinery for the performance of the timber cutting. Given the finding that there had been a failure to put in place a "safe work practice" and that the respondent had followed "usual practice", a finding of the existence of duty might have been made on the basis of a "proximity" relationship. However, it is not necessary to consider the existence or extent of such a duty, given the determination reached in relation to grounds 1 and 5. Ground 3 is not made out.
Causation
Grounds 2 and 6 allege error in the finding that the injury was caused by an unsafe system of work, and that the "pull through" by the chainsaw had occurred as a consequence of the stance adopted by the respondent. The respondent was injured by the "teeth" or "blade" of the chainsaw cutting his wrist. The evidence before the learned trial judge permitted the conclusion that the "reaction" by the moving parts of the chainsaw had occurred either because he had slipped, thereby causing mishandling of the machine, or had reacted to the "pull through and kickback" movement of the chainsaw which caused loss of balance. On either approach, the primary cause of the movement of the body of the respondent was one of stance. The logs were wet and jumbled. The stance adopted by the respondent determined the stability or movement, or the capacity to respond to movement, of the machine in the event of obstruction. The primary cause of the accident was stance, and, given the learned trial judge's conclusion that "the plaintiff [was not] presenting a fraudulent case", the issue of causation was similar, irrespective of the particular finding. The learned trial judge accepted the argument of the appellant that the cause of the accident was overbalancing, followed by the "pull through" force of the chainsaw causing the "stumbling" which had occurred through the combination of the adopted stance and the juxtaposition of the timber logs. The finding of negligence was made on the basis of causative acts of stance and method, and, in particular, the juxtaposition of the logs. It was the positioning of the logs which caused the "pull through" action which, in turn, caused the loss of balance. The learned trial judge did not find that an inoperative chain brake was causative of the accident and his finding of contributory negligence was made on the basis of the appellant's argument that the respondent had failed to properly exercise due care in relation to the method apposite to the required task. But the primary finding of negligence was made on the basis that the stance adopted by the respondent and the cutting of jumbled logs were causative of the accident. Grounds 2 and 6 ought be rejected.
Breach of duty
The learned trial judge had heard evidence from Gregory Howard, an experienced chainsaw operator and instructor and an accredited assessor with the Tasmanian Forest Industry Training Board. In his opinion, the decision to cut the logs as they lay prevented the adoption of a balanced stance. In his experience, an operator was "taught" to arrange the logs so as to ensure a stable surface from which to commence a cutting operation.
The respondent's contention that the accident was caused by a defective "braking mechanism" of the chainsaw was rejected. That being so, the appellant's argument in relation to ground 7 of the notice of appeal is weakened. The complaint is that the inference that the "Respondent's footing on the log was unsound" fails to identify an alternative conclusion. The argument of the appellant was that there was no evidence that "the plaintiff was not on a firm, level surface", and reliance was had on photographic interpretation and selected portions of the transcript. In a literalist approach to this issue, the written submission of the appellant stated:
"There is no evidence, and no basis for inferring, that the log provided him with any less secure footing than he would have had standing on the ground. In this context Mr Howard's evidence (referred to by His Honour at AB pp14 - 15) that a balanced stance required a non-slip surface should not be read too literally. It cannot be taken to require a prepared, artificial surface of the kind that one might insist upon, eg in an office, factory or shop."
The respondent was working at a bush mill. The evidence, photographic and otherwise, shows that the evidence of Mr Howard must be placed in context. In his opinion, an even stance is equated with that of a balanced or "non slip" stance, rather than one applicable to a factory floor. The argument advanced by the appellant in respect of this ground is one of concern to a "primary fact finder", not to an appellate tribunal. The relevance of the evidence of Mr Howard was that of the procedures which ought be taught to and enforced on chainsaw operators employed in the industry.
The evidence of the respondent was that he had received no formal training, held no certificate of competency and "had basically taught" himself. The appellant had neither provided formal training nor imposed specific directions as to the manner of work. It was on that basis that the learned trial judge made his finding. He was not in error in so doing. The responsibility of the respondent, based as it was on common sense, was recognised in the finding of contributory negligence. In my opinion, grounds 6, 7 and 8 are not made out.
Conclusion
In my opinion, the grounds of appeal have not been made out and the appeal ought be dismissed.
File No FCA 61/1998
TAS PALLETS PTY LTD v GORDON PATRICK JOHN SCHRADER
REASONS FOR JUDGMENT FULL COURT
EVANS J
4 June 1999
I agree with the reasons for judgment of Crawford J and the order he proposes.
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