Trevor John Goldsworthy v the Corporation of the City of Burnside, Judge Anderson File No. SCGRG 89/2160 Judgment No. 3668 Number of Pages 17 Negligence Evidence

[1992] SASC 3668

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA FULL COURT Anderson J.(1), Supreme Court Master

CWDS
Negligence - plaintiff injured whilst in employ of defendant and whilst undertaking unsanctioned but known activity - subsequently returned to work and collapsed after period of time.
Plaintiff has failed to establish negligence of defendant either in relation to initial injury or subsequent cessation of work - judgment for defendant.
Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18; Vozza v Tooth and Co Ltd
(1964) 112 CLR 316 and Raimondo v State of South Australia 23 ALR 513, applied. Sungravure Pty Ltd v Meani (1963) 110 CLR 24 and McLean v Tedmason 155 CLR 306, considered.
Evidence - observation by an expert, if not reliant upon expert qualifications, may be given in evidence. R v Bonython 38 SASR 45, applied.

HRNG ADELAIDE, 9-15 June and 8-15 September 1992 #DATE 20:10:1992
Counsel for plaintiff:                 Mr R.A. Cameron
   with Mr C.J. Roberts
Solicitors:  Paul Kirk, Roberts and Co.
Counsel for defendant:                 Mr D.H. Greenwell
Solicitors:   Norman Waterhouse

ORDER
Judgment for defendant.

JUDGE1 ANDERSON, J. This is a claim for damages brought by the plaintiff against the defendant, his then employer, arising from an accident which occurred whilst the plaintiff was working on 5 February, 1987. The plaintiff at trial is 38 years of age. He was educated to the first year of secondary school and left school to take up employment. The plaintiff's education was difficult and he repeated Grades 2 and 6 and was 15 years of age when he left school. From then until joining the defendant Council in August 1972 he had continuous storeman type unskilled employment. He joined the defendant pursuant to an employment assistance scheme and became a permanent employee on 27 June, 1973. He worked consistently for the defendant until after the time of the initial injury on 5 February, 1987. From 21 May, 1987 he was absent on workers compensation and his employment was later terminated. He is now an invalid pensioner. 2. Throughout his employment with the Council the plaintiff had general driving and labouring duties. For about six years from 1980 he was employed at and responsible for the Beaumont dump, which was then within the ownership of the defendant and open to the public. It is apparent from the evidence that the plaintiff liked his work. He enjoyed working outdoors and driving trucks. 3. The plaintiff also enjoyed working on cars and riding motorbikes. He was a weightlifter and had the necessary facilities at his home. He was a strong and fit person. At that time it was his general practice to swim, play squash and run. The plaintiff was also involved in his hobby of drum playing. He had been playing drums since he was thirteen years of age. For a few years before 1987 he played in a group in the front bar of the Alma Hotel each Friday evening. It was not unusual for him to be watched by his fellow employees. 4. From 1972 he worked on the various gangs which undertook the outside work for the defendant. In about mid-1978, in an accident at work, he broke his left thumb. It was operated upon and he was off work for about 18 months. His thumb sufficiently recovered to enable him to go back to his normal heavy work. He still has some restriction in the movement of the thumb but it has not in any way prevented him doing his work, notwithstanding that it hurt if hit. 5. In early 1980 the plaintiff became tipkeeper at the Beaumont dump. Generally speaking, the plaintiff had sole responsibility to ensure that the dump was kept tidy and that those using it paid as required. The plaintiff also had salvage rights. He was allocated a house next to the dump in Dashwood Road, Beaumont. This accommodation came with subsidised rent and telephone because of the requirement that the plaintiff be there at all times and work weekends. When the plaintiff moved to the dump he was married to Jenny and had been so since 1978. That marriage was dissolved in 1984. 6. After the plaintiff was divorced he was joined at the tipkeeper's house by a woman referred to in the evidence as Carmen. They started living together at about the end of 1984 and were still living together in that accommodation in February 1987. It is apparent from the evidence that the relationship between the plaintiff and Carmen was tempestuous. An indication of this is the plaintiff's evidence that he and Carmen split up approximately eight to ten times prior to the relationship ending after May 1987. 7. The plaintiff worked at the Beaumont dump until it was decided by the defendant that the dump would be closed to the public. That occurred in September 1986. Thereafter negotiations ensued in relation to the continuation of his accommodation and entitlements to compensation for the improvements he had made to the house. He remained living in the house for about six months after the dump was closed when he had been reallocated to the cleansing gang under the supervision of Mr Quinn. There was some considerable difficulty between the plaintiff and the Council in relation to his entitlements at the time the dump was closed. Clearly, he thought that he was being hardly done by in relation to the conditions upon which he was required to leave the tipkeeper's house both as to the issue of appropriate compensation and as to the failure of the defendant to honour what the plaintiff thought was an existing agreement that the defendant would assist him in some way to obtain housing trust accommodation at the time of his giving up the Council accommodation. There is no doubt that this feeling of being let down by the defendant, which the plaintiff expressed, had an ongoing effect upon his attitude towards the Council and in part towards some of its then employees. It was exacerbated by subsequent events. 8. By February 1987 the plaintiff had been back at work as a member of the outside work force with the defendant for some months. He was an established member of the cleansing gang and worked at the direction of Mr Quinn. It was the usual practice for members of the outside staff to gather in the supervisor's office at 7.30 a.m. each day when they would be allocated their tasks for that day. Thereafter, those allocated to particular tasks would ensure that they had the necessary equipment, that it was all working correctly and they would then go to their allocated place of work. It was usual for them to return at lunchtime and then again at the end of the day at not before 4.00 p.m. It was not unusual for the priority of tasks to be varied during the day by direction of Mr Quinn as need demanded. It was usual for Mr Quinn to visit or observe the various gangs in the course of their daily work, although it was not a fixed and regular time driven occurrence. 9. In February 1987 the plaintiff was a member of the footpath gang. Its general tasks involved moving through the whole Council area edging and chipping the grass verge, blowing footpaths clean and facilitating the work of the street-sweepers. The work required cleaning footpaths and trimming nature strips, laneways, creeks and drains. The physical content of the work varied from light to heavy. 10. On 5 February, 1987 the plaintiff was using a lawn edging machine of the type shown in the photographs in the book of photographs tendered in evidence. He had used a lawn edging machine prior to that day since he joined the outside work-force when the dump closed. 11. Mr Greenwell, of counsel for the defendant, objected to the plaintiff giving evidence about the lawn edging machine on the ground of relevance. He drew attention to the fact that the alleged instability of the machine was first in the pleadings subsequent to an amendment and there was nothing in the pleadings, or indeed in the plaintiff's opening, to connect the plaintiff's fall with the machine. He said there being no causal connection between the machine and the fall it was, therefore, not relevant to hear evidence about the machine's stability or lack of it. 12. Mr Cameron, of counsel for the plaintiff, submitted that the evidence was clearly relevant having regard to the need of the plaintiff to prove that the characteristics of the machine were such as to lead to a conclusion that the defendant had failed to make proper equipment available for its employees. The need to balance this machine so as to be able to use it meant that there was, or may well be, a causative link between the machine and the injury and that, accordingly, such evidence was admissible. 13. The evidence as to the stability of the edging machine was admitted de bene esse. At the end of the day, having heard all of the evidence I am of the view that the evidence should properly be admitted. It is a significant part of the plaintiff's case, and having regard to all of the evidence and the pleadings, the plaintiff relies upon an inference being drawn as to the stability of the edging machine and by that inference links the stability of the machine or lack of it to the plaintiff's fall and criticism of the system of work which the plaintiff was obliged to undertake. 14. It was not in contention that in February 1987 the defendant owned two similar lawn edging machines. The plaintiff's case is that it is now not possible to identify which of those two machines was being used by him on the day in question, except that at that time one of the machines had had the shaft to which the handles are attached lengthened by approximately six to eight inches. The plaintiff said that on that day he was using the other machine which, at that time, did not have the shaft to which the handles are attached lengthened. He was not able to distinguish between the machines as he said that after his fall the handle of the machine which he was then using was also extended and so he can no longer say which was which. 15. The plaintiff said that using the machine in its original configuration was difficult because it was too low and to use it with some ease the handles had to be brought up together so as to be held at a comfortable height and, as a direct consequence of having them positioned closer together, if the machine struck a solid object whilst in use there was jarring and there was continual pressure in the shoulders from the need to hold the handles together and keep the machine upright. As a consequence of the strength needed to maintain the machine in an upright and balanced manner it was difficult and tiring to use for extended periods of time. The plaintiff also said that the machine was awkward to lift. The plaintiff said that at some time prior to the day of the accident the use of these machines caused him to complain to Mr Quinn because of this lack of stability. He said that he suggested that trainer wheels or something similar would be appropriate. He did not make any suggestion concerning the height of the handles. The best answer he got from Mr Quinn, according to the plaintiff, was that it would be looked into. Mr Quinn in his evidence denied that the plaintiff had ever complained about the machine to him or suggested that trainer wheels would be appropriate and, indeed, said that he only discussed the machinery with his gangers, of whom the plaintiff was not one, and that as a consequence thereof it was decided to lengthen the shaft to which the handles were attached. He could not say when this occurred. In addition, the plaintiff said that he told Mr Quinn that the other employees were also complaining about the machines. Again, Mr Quinn denied that. It seems that the principal complaint which the plaintiff had was of the need to use this unaltered machine with the handles about eight to ten inches apart with its associated instability whereas the modified machine was used with its handles about a metre apart and was easier to use for extended periods of time both as to stability and physical comfort. 16. On 5 February, 1987 the plaintiff commenced work in the usual way by gathering with his colleagues in Mr Quinn's office at about 7.30 a.m. He was then told that he was to work that day with Mr Holland and that they were to undertake lawn edging in the area bounded by Lockwood Road, Godfrey Terrace, Kensington Road and Glynburn Road. The plaintiff used the edger all that day taking the normal breaks and by about shortly after 2.00 p.m. was in Myall Avenue, Kensington Gardens. Myall Avenue runs north and south. The plaintiff had travelled in a northerly direction on the eastern side of Myall Avenue edging the verge between footpath and lawn. He completed the work on the eastern side of Myall Avenue and was at the corner of that street and Kensington Road. It is common ground that at that time there were no pram ramps in place to facilitate movement from the footpath through the kerb to the roadway. It was necessary that the plaintiff cross the road and recommence his edging task to travel from Kensington Road in a southerly direction along the western side of Myall Avenue. To do so he said that he pushed the machine from the footpath over and down the kerb and on to the roadway. He pushed it about halfway across the road and then turned around and commenced to walk backwards towards the western side of Myall Avenue. He pulled the machine with the intention of stepping on to the grass verge immediately behind the gutter and lifting the machine backwards up over the gutter. 17. It is not disputed that the machine is approximately 800 millimetres in length as to its body, its handles extend approximately a further 650 millimetres. From the ground to the top of its petrol tank it was approximately 670 millimetres and it had one broad rear wheel which was approximately 85 millimetres wide and a further small wheel immediately to the front which had set in front of it a guard which contained the rotating blades. The lawn edger was clutchless and, therefore, the speed with which the blades rotated was directly related to the speed of the motor. According to the plaintiff it was necessary to pull the machine up over the kerb because its construction was such that it could not be pushed forward up and over the kerb because it would catch. Hence it was easier to go backwards than forwards. 18. As the plaintiff made his manoeuvre the motor of the edger was running. There is no evidence as to how fast. As he continued his movements backwards towards the gutter from where he reversed in the road he turned his head to look over his right shoulder. He was pulling the machine holding its handles about eight to ten inches apart. He was looking backwards to know where the gutter was so as to be able to drag the machine up it. Whilst doing this and for reasons he is unable to explain he fell backwards and landed with his left buttock on the raised kerb and the machine fell on his right leg. It happened quickly and he has to this day no idea why. In examination-in-chief he was asked to explain why he fell and he said:
    "No. I have got no idea to this day. After the accident
    happened, I went back there a few times just for my curiosity sake,
    just to find out why there was nothing there to trip on so it had to
    be the machine through me, like, using it for the day and like the
    days prior and that's all I ever put it down to but to this day I
still don't exactly know." 19. There is significance attached to this answer. As can be concluded from the psychiatric evidence, the plaintiff by this time had an established, though no doubt subconscious, practice of blaming others for his failures. He had done so from when it was necessary for him to repeat school years. Notwithstanding that he has no explanation for how this accident occurred, that he has no recollection of tripping or the fall being caused by any other object, he is able, in that answer, to blame the machine. Notwithstanding that he does not know why he fell over, he now maintains that it must have been to do with the machine and not to do with him. 20. When the plaintiff's lower left back hit the kerb he felt instant severe pain. He was crying and received immediate assistance from his workmate, Mr Holland, who said in evidence that he had not seen the actual fall. He saw the plaintiff on the ground half on the roadway and half on the verge with his buttock on the kerb. His upper body was on the verge. The plaintiff moved himself and sat on a nearby low fence. Shortly thereafter a fellow workmate, Peter Sfyrios, arrived and then a passing Council truck was stopped, a radio message was sent to the depot and soon after Mr Quinn arrived in his car. More probably that not several other people arrived including Mr Brown, who was at that time the plaintiff's ganger. After a short period of time the plaintiff was taken to the doctor and given a pain killing injection. 21. In cross-examination Mr Greenwell put to the plaintiff that in fact the accident occurred as he tripped in the gutter whilst moving from the roadway to the grass verge and that as he did so the handle of the machine caught on a post which was then adjacent to the position where the plaintiff was manoeuvring the edger and that he fell with the machine on top of him. The plaintiff denied that that is what occurred. Mr Greenwell put to him a report in these terms made by him to his ganger, Mr Brown, on the day following the accident. The plaintiff denied that that was the case and the topic was pursued on the basis that Mr Brown was to be called. In fact Mr Brown was not called to give evidence and so the defendant is unable to claim evidentiary weight from the accident report form, the exhibit D1. This is a scenario which the plaintiff denied occurring notwithstanding that he did not know what had happened. 22. In cross-examination it became apparent that when undergoing several medico-legal examinations, other examinations with treating doctors and when answering interrogatories, the plaintiff made no mention of the alleged instability of the machine which he had referred to in his evidence-in-chief as being to his mind the principal cause for the fall. It is apparent from the evidence, as Mr Greenwell pointed out in his address, that the question of instability was really only raised by an amendment to the pleadings subsequent to the plaintiff's safety expert, Mr Moulds, inspecting the machine and producing a report. The defendant suggests that initially the plaintiff was unable to offer any explanation for his fall. His subsequent explanation that "it must have been the machine" has been developed by reference to the alleged instability of the machine. Mr Greenwell suggests that this is yet another example of the plaintiff rationalizing events after they have occurred in a manner which does not in any way adversely reflect upon him. 23. The evidence of Mr Moulds does not offer any real assistance to the plaintiff. Mr Moulds is an industrial safety practitioner of many years experience. He has neither academic or medical qualifications and seemed more concerned to argue in cross-examination than answer questions. I formed the impression that his principal experience was with more factory type static scenarios even though his opinion as to the system of work was that if it required walking backwards it was faulty. He said this whilst agreeing that walking backwards whilst pulling a trolley, for example, was an everyday industrial occurrence. 24. He suggested that the lawn edger was unstable, its handles were too close together (caused by its lack of height, by implication) and the need to walk backwards meant the system of work was inappropriate. When cross-examined about the need to walk backwards he was unable to say why it was necessary to do so, rather than simply turn at the kerb and should that occur he was not able to be as critical of the system of work. His evidence was substantially discredited in cross-examination and is of value to the plaintiff only if he was using an unaltered machine which in some way contributed to the fall. 25. In my opinion, it is the plaintiff's habit of rationalising which permitted him to say in evidence that he had not been given any instructions as to the manner in which the machine was to be moved from one side of the road to the other. He denied ever having been instructed by Mr Quinn on either one or more occasions that the machines were not to be taken over the kerb stones but rather were to be moved through either pramways or driveways, whichever was the nearest. The plaintiff said that such an instruction not only had not been given but that it flew in the face of the demand by the Council for increasing productivity and that to walk from where the edging was finished to the nearest driveway and then back to the starting point on the opposite side of the road several times each day would unnecessarily delay the completion of the work and, by implication, would lead to criticism from his supervisor for not having performed enough work in the allotted time. Mr Quinn and others denied that no instructions had been given. Indeed, Mr Quinn was adamant that not only was an instruction given initially but when he saw people doing what the plaintiff was doing on this occasion and, on his evidence, had done previously the same day and earlier, he would speak to the individual workmen and from time to time remind the men at their meetings that it was not a permitted course. He said that there was a verbal instruction given by him to all his staff that all light equipment was to be taken from one side of the footpath to another by using a pram ramp if available or the nearest driveway. Mr Quinn said that it was one of his "little pet hates" that the men would push this light equipment over kerbing. His principal concern was that the light equipment would not take the continual jolting which came from being dropped over raised kerbing. Mr Peter Sfyrios, a member of the outside work force, agreed that this instruction followed by subsequent intermittent reminders had been given. However, on 5 February, 1987 Mr Quinn was well aware of the practice being followed by the plaintiff, notwithstanding his instruction. 26. I turn now to the evidence given in support of the plaintiff's position both as to the events of the day and as to the circumstances generally in relation to the work done using the edging machine. This requires a consideration of the evidence of Messrs. Holland, Bingapore and Tough. 27. On 5 February, 1987 the plaintiff was working in Myall Avenue with Mr Holland. As a team they were undertaking the footpath cleaning task. Mr Holland said that it was his task to pull a lawn-mower size blower type machine some short distance behind the plaintiff and his lawn edger in such a way as to blow the cuttings off the footpath on to the roadway from whence they could subsequently be swept away. To do this it was necessary for him to walk backwards in a northerly direction on Myall Avenue because of the angle at which the vent on his machine was located. He said that he looked around to see where the plaintiff was and saw that he was crossing Myall Avenue from east to west. He is uncertain as to precisely at what point the plaintiff was and whether he was pushing or pulling the machine. He looked back to his task and then heard a noise. He looked around and saw the plaintiff lying on the ground in the position described by the plaintiff with the machine on top of him. He ran over to the plaintiff and saw that he was crying. Others arrived. After the plaintiff was taken away by Mr Quinn. Mr Holland remained at his post for the balance of the day. He did not see the plaintiff again until he returned to work on 23 March, 1987. At that time he knew him to be on light duties in the draining cleaning gang. From then until the plaintiff left work on 21 May, 1987 Mr Holland worked with him only on two further days. 28. Mr Holland described the plaintiff, whom he had known from when they commenced work at the Council together in 1973, as a good reliable worker who placed great stead on the Australian tradition of mateship. 29. Mr Holland thought the edging machine which Mr Goldsworthy was using was the machine which had not had the handle adjusted in height. He said that to use the unmodified machine for the purpose for which it was designed was uncomfortable because the machine was unstable and made the user very tired in a relatively short period of time. The principal cause of this difficulty was that the rotating blades became caught on uneven bitumen paths or the steel edging of the grass verge and thus necessitated continual attention to rebalancing. 30. In cross-examination Mr Holland admitted that subsequent to the accident he had, on at least two occasions, made statements describing the happening of this accident which were not consistent with what he had given in evidence-in-chief. Soon after the event he completed a City of Burnside form headed "Statement of Eye Witness to Injury" where he described the plaintiff's injury as having been sustained by him "bringing the machine down on top of him by tripping over edge of kerbing". In November 1988 he made a statement to an investigator, which statement he amended, initialled and signed. Therein he said that he saw the plaintiff standing on the western footpath "about to pull the machine up over the kerb. I then heard the sound of an impact and saw the edger topple over and Trevor more or less lying on his back with the machine across his legs. He was lying with his back across the kerb". When these alternative versions were put to Mr Holland in cross-examination he had, to my mind, no satisfactory explanation as to why in Court in mid-1992 he should give a version which is quite different from those which he gave much closer to the event and, in so doing, give a version which is much closer to that given by the plaintiff in his evidence. 31. It is notable also that neither he nor the plaintiff nor Mr Bingapore nor Mr Tough ever described any difficulty in balancing or manoeuvring the edger when it was not cutting. This was so notwithstanding that the machine was running whilst it was pushed or pulled across the road in the manner described by the plaintiff. The complaints as to the stability of the machine and the difficulty of use all relate to the process of edging. The only complaint made in the evidence about manoeuvring it across a roadway from one grass verge to another was that it was easier to pull up a kerb than push up a kerb because of its ground level construction. 32. Mr Bingapore was a workmate of the plaintiff and had been so for about three years in February 1987. He agreed that the plaintiff had a reputation as a hard and willing worker who was prepared to help out but who was also quite prepared to question authority and have his say generally. Mr Bingapore agreed from some quite extensive experience with the machine that it was hard to balance when it was being used to edge. Notwithstanding that he attended at the scene of the accident he is uncertain as to which of the two machines described by the plaintiff, that is to say, one which had the handle extended and one which did not, was being used at that time by the plaintiff. He said that it was after the accident that one machine was adjusted. 33. Mr Bingapore was unfamiliar with any instruction which had been given by Mr Quinn that edgers were not to be taken up and down gutters in the manner described by the plaintiff but rather were to be returned to the nearest pram ramp or driveway and the road was to be crossed at that location. 34. Mr Tough who also worked outside gave evidence for the plaintiff and said that when he operated the machine he would always go to a driveway or pathway to cross a road. He agreed that the machine was unstable to use but, again, made no mention of the instability related to the machine whilst the engine was running and it was not actually cutting. 35. It is apparent from the evidence given from Mr Dankowski, who is and was in 1987, employed by the defendant in its mechanical workshop, that a workshop job sheet in the form of D19 to lengthen the handle post of a "GP edge trimmer" was made up. The number "164/9" appears adjacent to the words "job no." and on the same line as "description of work" on this job sheet. Mr Dankowski said that by looking at the endorsement or job notes on the job sheet he could say that he had completed the job. The endorsement is in his hand. He was unable to say whether the work was performed on 4 February, 1987, which is the day on which he said, by reference to the document, that it was created by his supervisor whose handwriting he identified. He said, however, in answer to a question from Mr Greenwell and further in answer to a specific question from me, that it was the practice when a job with small machinery was to be done that the machinery to be worked on was available in the workshop from the time the job sheet came in. It would not be the case that when time became available to complete the required work on a small machine that it would be necessary to go to the suburbs where the machine may be being used to retrieve it for the purposes of effecting the work. 36. It is apparent from an observation of the machines, which are exhibits D22 and D23, that one of them is numbered "164/10" and the other "164/9". The irresistible conclusion from the evidence is that it was the latter machine on which the work in question was performed on or about 4 February, 1987. Mr Dankowski was not able to say whether he did the work on that day or subsequently. No other evidence about that has been adduced. It is clear from the evidence that the work to the machine number "164/9" was not performed prior to 4 February, 1987. On balance, therefore, it is more probable than not that on 5 February, 1987 the machine "164/9" was either still in the workshop having the work completed or was available for use on that day in an extended mode the extension having been completed the previous day. The irresistible weight of the evidence is that this is so. The recollection of the various witnesses may be dimmed by the passage of time but the jobsheet is not so afflicted. When the plaintiff was shown the book of photographs he identified the photographs therein of the machine "164/10" as the machine he was not using on 5 February, 1987. The reason he so identified it was on the basis that on that day, of the two machines owned by the Council, one had had the handle extended previously and the other did not. He said he was using the latter. It followed to his mind that as this photograph shows an extended machine he must have been using the other. 37. The plaintiff's case that on that day the other of the edgers had been previously extended is supported by Mr Holland and by inference by Mr Bingapore. However, I am not satisfied on the balance of probabilities that the edger being used by the plaintiff was in the state described by him. To my mind on the evidence presented it is very much more likely that the edger being used by him on 5 February, 1987, like the other edger, had been modified prior to that day and I so find. 38. I have no difficulty in finding that the plaintiff crossed the street in the manner described by him in his evidence. As I have said, it is clear from the evidence and from a perusal of the admitted medical reports that he never, at any stage, when reporting and describing the accident to a variety of persons, in any way attributed his fall to a lack of stability in the machine. At no time did he indicate to any other person before this case that he was having difficulty holding or manoeuvring a machine which was not actually engaged in cutting. 39. Whilst the weight of the report form, the exhibit D1, is somewhat reduced by the failure of the defendant to call Mr Brown to give evidence and to not satisfactorily otherwise explain that failure, the alternatives as to how and from where the plaintiff fell remain that he, whilst looking over his shoulder at the gutter and pulling the machine backwards towards the gutter, simply fell for no reason at all, or, that he moved back and missed his footing and tripped on the gutter, or that he reached the gutter and as he went to lift the machine in the manner described in the evidence either his arm or the handle of the machine or both struck a post which, on the evidence, was then located at about the position where he crossed. The consequence of any of these alternatives is that the plaintiff fell and landed in the manner described by him half on the roadway and half on the verge with his left lower back/buttock area striking the kerb. On all of the evidence I am inclined towards the first of the three. It is consistent with the plaintiff's evidence and with the evidence-in-chief of Mr Holland. It is consistent with the injury which he thereby sustained to his buttock. 40. I am not able to find that the plaintiff has established that anything in relation to the machine caused or contributed to his fall. Further, I do not accept his evidence in preference to that of Mr Quinn, even though it is generally supported by Mr Bingapore, that there was no instruction in existence directing that either pram ramps or driveways to be used for the crossing of roadways and that light machinery was not to be dropped over kerbs. I find that there was such an instruction and that it was not negated by productivity requirements. I will come to a consideration of the plaintiff's demeanour as a witness subsequently. 41. The plaintiff, therefore, fell over for reasons which are not known by him whilst he was taking the edger across Myall Avenue in a manner contrary to a specific instruction which he had been oft given by his supervisor but in a way which was known by that supervisor and hence the defendant to be a not unusual practice. At the time he fell he was walking backwards and probably had not reached the kerb. No valid complaint about the edger whilst being wheeled with the engine running has been established on the evidence. 42. As I have mentioned, Mr Moulds made a valiant but unsuccessful attempt to establish that the plaintiff was engaged in a system of work which was unsafe. The plaintiff's case is that the defendant knew of that fact and acquiesced in it and consequently must bear responsibility for any loss and damage which foreseeably flows therefrom. 43. Mr Greenwell sought to use expert evidence from Mr Hall, an engineer, to negate the plaintiff's case as to the instability and difficulty of use of the edger. 44. For reasons appearing in the transcript at p.875 I refused to allow that evidence as being in breach of the spirit of Rule 38.01 and of case flow management considerations. I allowed Mr Hall to give evidence of certain observations in relation to the edger and in particular as to the amount of force read from a spring scale needed to move the machine from stationary and to keep it going. I allowed this evidence over Mr Cameron's objection. 45. When Mr Greenwell asked questions about readings from a spring balance attached respectively to the left and right handlebars as the machine was pushed past balance on each side I was initially of the view that this evidence went past mere observation and required some expertise and, hence, may be caught by my initial ruling. Mr Cameron objected to the evidence being given. At Mr Greenwell's request and to facilitate the conduct of the trial I took the evidence de bene esse. 46. Mr Greenwell made submissions in relation to it in the course of his final address. He submitted that the evidence given by Mr Hall was "straight factual evidence" (p.1088) and was not an opinion even if that evidence may have been used to base an opinion which he has not been permitted to give. 47. Mr Greenwell relied upon R. v. Bonython 38 SASR 45 at p 46 where King C.J. said:

    "The general rule is that a witness may give evidence only as
    to matters observed by him. His opinions are not admissible. One
    of the recognized exceptions to this rule is that which relates to
    the opinions of an expert. This exception is confined to subjects
    which are not, or are not wholly, within the knowledge and
experience of ordinary persons; Clark v. Ryan (1960) 103 CLR 486.
    On such subjects a witness may be allowed to express opinions if the
    witness is shown to possess sufficient knowledge or experience in
    relation to the subject upon which the opinion is sought to render
    his opinion of assistance to the court. Before allowing a witness
    to express such opinions, the judge must be satisfied that the
    witness possesses the necessary qualifications, whether those
    qualifications be acquired by study or experience or both. But when
    it is established that the witness is an expert in the relevant
    field of knowledge, he will be permitted to express his opinion,
    however unconvincing it might appear to be (Commissioner for
Government Transport v. Adamcik (1961) 106 CLR 292)." 48. I am now persuaded that Mr Hall was entitled to give the evidence above referred to. Whilst it may have been part of some subsequent expert opinion were expression of that opinion permitted what was given in evidence is only an observation of a factual circumstance which is relevant to a fact in issue, namely the stability of the edger. The evidence will therefore be admitted. 49. The duty upon an employer where he knows of the system of work being undertaken by his employee was described in Hamilton v. Nuroof (W.A) Pty. Ltd.
(1956) 96 CLR 18 at 25 by Dixon C.J. and Kitto J. as a duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury". In Vozza v. Tooth and Co. Ltd.
(1964) 112 CLR 316 the headnote reads:
    "The statement that the common law requires that an employer
    have a safe system of work for his employees means only that he
    must take reasonable care for their safety. It does not mean
that he must safeguard them completely from all perils." 50. Of course, the circumstances of each case are to be separately considered in applying this principle. Having regard to the known, if disapproved system of work, it may be that negligence can be established if the act was permitted to be done without thought for the consequences of what may follow from it: Sungravure Pty. Ltd. v. Meani (1963) 110 CLR 24. Liability may well follow if the system of work was one of which the defendant was aware was fraught with some degree of risk, such risk being one which is foreseeable and significant: McLean v. Tedmason 155 CLR 306. 51. However, here I am not persuaded, allowing as I have that the defendant knew that there was a practice of pushing and pulling the edgers over gutters even though there was an instruction to the contrary (such instruction being directed to machinery preservation rather than employee safety) that should the plaintiff engage in such an activity there was a risk of injury to the plaintiff which was foreseeable and significant. Indeed, the very opposite was the case. Mr Quinn said there had never been any accidents related to use of the edger, whether modified or not. Both the plaintiff and Mr Bingapore said they had undertaken the manoeuvre described by the plaintiff as a means of crossing from one side of the street to the other on many previous occasions without incident. 52. In Raimondo v. State of South Australia 23 ALR 513, Mason J., with whom the majority agreed, adopted the employer duty in the terms I have taken from Hamilton. The critical question posed by His Honour is to be found at p.517: "Did these circumstances call for an instruction or warning from the employer in the discharge of his duty to take reasonable care for the safety of his workmen?" 53. At p.518-519 His Honour continued:
    "In Electric Power Transmission Pty. Ltd. v. Cuiuli (1961) 104
    CLR 177, Taylor J. said (at 183): 'If one seeks far enough it is
    possible to perceive an element of risk in the performance of any
    task, however simple, but the duty of an employer does not extend to
    guarding against every conceivable risk however remote or
    fanciful...' In the present case, when all is said and done, I
    cannot think that by giving two experienced painters the equipment
    to which I have referred and by requesting them to paint the ceiling
    of the corridor - a very simple and uncomplicated task - without
    further instruction or caution, the respondent unreasonably exposed
    them to risk of injury. It is against common sense to say that the
    taking of reasonable care by an employer called for the giving of an
    elementary instruction or caution in relation to the slight, albeit
    evident, possibility of injury which an imprudent mode of adjusting
    the trestles would entail. The risk of injury was slight, the
    possibility of its occurrence was as apparent to the employees as it
    was to the employer and there was no probability that the appellant
    would have taken any greater care for his safety had he been given
    an instruction or warning of the kind suggested. The appellant took
    a short cut, no doubt thinking that the possibility of injury
    resulting from an accident of the kind that occurred was so
    inconsiderable that he could disregard it. The caution or
    instruction which he suggests should have been given was a basic
    counsel or caution of which he was or must have been aware. His
    injury is in these circumstances the result of his own default and
cannot be properly laid at the door of the respondent." 54. That was a case, as here, where the defendant was aware of the practice commonly used by its employees and did not give any warning against it or promulgate any other instruction. There had been previous accidents flowing from the system of work. Of course, that is not so here. 55. The plaintiff took a short cut. It is not clear what instruction could have been given to prevent him from simply falling over whilst doing something he considered straightforward and had done many times before. 56. I am not satisfied that the plaintiff has established either that the incident occurred in the circumstances pleaded in paragraph 5 of the Amended Statement of Claim or the particulars of negligence set out in paragraph 6 thereof. It follows also that the plea based upon the Australian Standard 1476-1973 "General Principles for Safeworking in Industry" is also not made out. 57. In paragraph 7 of the Amended Statement of Claim the plaintiff pleads a breach of statutory duty. No argument was addressed to this plea. Section 29 of the Industrial Safety Health and Welfare Act, 1972 was relied upon. I respectfully adopt the view of Bollen J. in Thomas v. General Motors-Holden's Ltd. (1988) 49 SASR 11 at 28, in relation to that section where His Honour said:
    "... I do not think that that section really adds anything
    (in the 'damages sense') to the common law." The plaintiff received
    medical treatment on the day of the accident and eventually returned
    to work on 23 March, 1987 having a certificate for light duties from
    his general practitioner, Dr Martin, and with the imprimatur of
    Mr Teague, orthopaedic surgeon, whom the plaintiff had consulted in
    that period. Mr Teague said that he was quite satisfied the
    plaintiff had made a sufficient recovery from what he called "a deep
    seated bruise of his sacro iliac area" by that time. Indeed, it is
    plain from the medical report that at an examination on 12 March,
    1987 the plaintiff admitted that he was feeling better with better
    mobility, he was able to walk quite long distances without pain, he
    had an excellent range of movement of his thoraco-lumbar spine,
    whilst remaining tender in the left buttock region. He was able to
    do a "full drop squat on to his haunches quite freely and recover
    normal posture indicating good muscle function and comfort. He had
    obvious ability to stretch up the left gluteal muscles". Even by this time there was a hint of an overdependence upon medication and the possible need for psychiatric assistance. These are matters which at this moment do not require further consideration. 58. The plaintiff said that on the Friday prior to his return to work he had a discussion with Mr Quinn at his house. He then still lived at Beaumont. He said that Mr Quinn had promised that he would work only in a team of three henceforth. Mr Quinn said that he had no discussions about the working conditions with the plaintiff until 23 March, 1987, when he instructed all who were assembled at the usual meeting in his room at 7.30 a.m. that the plaintiff was to do light duties. He was to only drive the truck and work the water hydrant key. Mr Holland knew that he was on light duties. Mr Tough had no recollection of any such instruction. Mr Bingapore was quite equivocal on the question of his knowledge of the plaintiff's restricted work obligation. This equivocation was characteristic of the whole of Mr Bingapore's evidence which was principally devoted, in my view, to doing what he could for the plaintiff whilst at the same time committing himself as to the least extent possible having regard to the fact that he had no impressive recollection of what actually had occurred at all. 59. Mr Quinn said that the instruction he gave was that the plaintiff was to do nothing other than drive the truck and operate the hydrant key to turn the water on and off. In this regard he is supported by not only Mr Holland but also by the Sfyrios cousins who worked in the drain cleaning gang with the plaintiff whilst he was at work from 23 March, 1987 until 21 May, 1987. No one person worked with him consistently over that period of time, although Peter Sfyrios and Pantelios Sfyrios respectively worked the longest periods with him. 60. The plaintiff said that whilst that instruction was given it was not honoured and that not only was he not in a team of three as he alleged Mr Quinn had promised prior to his return to work but because he was in a team of two undertaking the summer maintenance programme of drain cleaning he was required to do varying types of heavy work, including quite heavy work which he described in some detail over some days at the Crompton Road site. In view of the conclusion to which I have come I do not find it necessary to traverse in detail all of the evidence relating to this period but I have considered it prior to arriving at my conclusion. The plaintiff said that not only was he required to drive the truck and operate the key to turn the hydrant on and off, but because there were usually only two persons assigned to the gang by Mr Quinn, he was required to help lift the 80 kilogram drain cleaning machine from the rear of the truck from time to time and to replace it and was required to lift side entry pits, manholes and undertake other sundry cleaning work with hoses and shovels which required bending and twisting. He said all of this, over the time from 23 March, 1987 to 21 May, 1987 exacerbated the pain in his back. He gradually became more stooped and he regularly complained, not only to his workmates, but to Mr Quinn seeking that he would be sent for further medical examination. He said that Mr Quinn steadfastly treated his continual complaints with almost ignore and brushed him off. The plaintiff said that he became exasperated and from time to time he and Mr Quinn shouted at each other. There is some support for this latter suggestion in the other evidence, although it is tempered by the admission that there is no accurate recollection as to time and it was not unknown for the plaintiff, who could be somewhat fiery from time to time, to have shouting matches with Mr Quinn, notwithstanding the fact that they were also quite friendly, one to the other, at most times. 61. Whilst Mr Holland's recollection was not all that it might be and he had not seen a lot of the plaintiff actually working in this period, he generally was supportive of the plaintiff's position that he had undertaken tasks other than those defined as light duties by Mr Quinn. So also was Mr Bingapore. Although of course his evidence suffered from the difficulty which I have mentioned. Mr Tough offered no substantial support to the plaintiff's case in this regard and the recollection of his friend, Mr Moore, was, in my opinion, tempered by the passage of time and his friendship with the plaintiff. 62. The evidence given on behalf of the plaintiff concerning the nature of the work undertaken by him in this period was categorically refuted by both Peter Sfyrios and Pantelios Sfyrios. One or both of them worked with the plaintiff for all but about six days of the 44 days he worked from 23 March, 1987 until 21 May, 1987. They were both adamant that the plaintiff did not undertake any heavy work of the type he had described in his evidence and whilst they admit that he did, from time to time, show signs of and complain of pain and lack of comfort, they, like Mr Quinn, denied that there were stand up fights of the verbal type referred to by the plaintiff in his evidence with Mr Quinn. The criticisms made by Mr Cameron in his final address of the Sfyrios cousins are unacceptable. They were impressive witnesses and I reject the suggestion that they gave their evidence with an eye to their continued employment with the Council. I also reject the plaintiff's evidence that three men were needed or were usual. Peter Sfyrios said it was able to be done by two with extra assistance to be requested if needed. Mr Quinn said something similar. Mostly it was straightforward, light, boring work. I am not satisfied that the plaintiff has established that either driving the truck or operating the hydrant key has in any way made worse his physical condition. 63. I have made findings to date with regard to my impression of various witnesses. I come to the plaintiff. He was a very poor witness. I have no hesitation in finding that unless his evidence is able to be corroborated by others, or by circumstances, it cannot be preferred. Those who were principally used to bolster his evidence were Mr Bingapore, Mr Holland, Mr Tough and Mr Moore to a lesser extent. Mr Holland was a forthright witness who, in my opinion, was doing his best to help the cause of the plaintiff but whose evidence-in-chief simply collapsed under its own weight during his cross-examination. In any event he saw little of the plaintiff after 5 February, 1987. Similarly, Mr Bingapore was a poor witness who sought to help his former colleague and I have a suspicion that he was seeking to be seen in a good light in his capacity as a union representative doing the right thing for a member. 64. Opposed to them were the Sfyrios twins who, in my view, were forthright and reliable witnesses. The manner of their giving evidence was more straightforward than that of Mr Bingapore or the plaintiff. Neither they nor Mr Quinn were substantially moved by lengthy, detailed and careful cross-examinations. Mr Quinn was an excellent witness. I prefer the evidence of Mr Quinn that the plaintiff made only one substantial complaint of pain and discomfort to him after his return to work and in response to an invitation by Mr Quinn to return to the doctor the plaintiff indicated that he would continue working for a further period. I reject the plaintiff's evidence that he continually complained of pain, did work other than as described by the Sfyrios cousins and almost continually shouted with Mr Quinn about his back and working conditions. There is no acceptable evidence that the plaintiff's activities at this time exacerbated his organic problems. 65. Consequently, as to this period of time, I am not satisfied that the plaintiff has shown that the behaviour of the defendant and its representatives was negligent or in breach of any other obligation to ensure safe working conditions. 66. Certain parts of the psychiatric evidence are apposite to this finding. As I have said, both Mr Goldney and Dr Donsworth, psychiatrists, agree that the personality of the plaintiff is such that he is inclined to blame others for his difficulties as he perceives them. He has shown himself to be an inaccurate historian. He has complained to them of others being at fault for almost all of his life's difficulties and, in particular, his failure to succeed both at school and in employment. The plaintiff's evidence about this subsequent period of work is a further example of that. He has rationalized the initial fall as being the fault of the machine and hence the defendant simply because he has no other explanation. His antipathy towards the Council was heightened by the difficulties which he had when it came time for his employment as the tipkeeper to cease and for him to negotiate the removal from the tipkeeper's house. In addition, he had stresses from his personal life active at this time. In that regard he had received psychiatric help. Added is his allegation of a history of complaints about the lawn edger followed by his assertions as to what he was promised by way of working companions and what work he actually did and the complaints he made and the responses which he received from 23 March, 1987 until 21 May, 1987. He has, in my opinion, rationalized all of these events as being the fault of others and he has done so, as Dr Goldney said, without the need to be precise as to his recollections or statements because he never has been called upon to exhibit such a quality throughout the whole of his life. 67. The plaintiff has failed to establish that the initial accident was caused as a consequence of a breach of any duty owed to him by the defendant. He has also failed to prove that any subsequent exacerbation of his initial injury has been similarly so caused. 68. There is no doubt on the medical evidence that the psychiatric overlay which has brought on the psychiatric condition of camptocormia, from which the plaintiff presently suffers, is hinged upon the organic damage to his spine at the L4/5 level. I think it more likely than not that there has been, as a consequence of his fall, an internal disruption to a previously asymptomatic degenerating disc. There is a conflict of medical evidence as to whether a fusion operation is required and it may be that, on balance, it is contra-indicated, but the medical evidence, from the psychiatrists in particular, and from others, is unanimous that no further treatment of his back for organic difficulties should occur until his psychiatric problems have eased. None of this can be laid at the feet of the defendant as being a consequence of any failure by it to fulfil a duty reasonably and foreseeably owed by it to the plaintiff. In view of these findings no benefit is to be gained by proceeding with an assessment of the plaintiff's loss. 69. There will be judgment for the defendant. I shall hear counsel as to any consequential orders.