Trevor John Goldsworthy v the Corporation of the City of Burnside No. 4262 Judgment No. SCGRG 89/2160 Number of Pages 15 Negligence

[1993] SASC 4262

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Negligence - liability of master for injury to servant - employer's liability - outside worker using a lawn edging machine - walked backwards towards the kerb from the carriageway pulling the machine - against instruction, he was preparing to drag the machine up the kerb - machine recently modified to improve stability - plaintiff fell before reaching kerb and injured his back - simple task given to experienced worker - no breach of duty by employer - second allegation that plaintiff was given heavy, instead of light work on return - this allegation failed. Electric Power Transmission Pty Ltd v Cuiuli (1960-61) 104 CLR 177; Da Costa v Cockburn Salvage and Trading Co Pty Ltd (1970) 124 CLR 192 at 201; Roe v Minister of Health and Anor (1954) 2 QB 66 at 87; Hamilton v Nuroof (WA) Pty Ltd (1956-57) 96 CLR 18 and Raimondo v State of South Australia (1978-79) 23 ALR 513, applied. Jones v Dunkel and Anor (1959-60) 101 CLR 298, discussed.

HRNG ADELAIDE, 13-14 September 1993 #DATE 10:11:1993
Counsel for appellant:     Mr T A Gray QC with
   Mr R A Cameron
Solicitors for appellant:    Kirk Roberts and Co
Counsel for respondent:     Mr D A Trim with
   Mr D H Greenwell
Solicitors for respondent: Norman Waterhouse

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by an unsuccessful plaintiff, now the appellant. It is an action for damages in compensation for injuries sustained on 5th February 1987 and said to have been later aggravated. The appellant was employed by the defendant, now the respondent. The appellant was injured by a fall which happened whilst he was working at his job. The injury is serious and disabling. He brought this action for damages in negligence and for breach of statutory duty. He alleged that the respondent had not discharged its obligation in law on the two occasions to take reasonable steps to safeguard him from harm at work. He alleged breach of statutory duty, too. The learned trial Judge found neither cause of action proved and entered judgment for the respondent. 2. The appellant was a worker experienced at "out-door" work. From 1972 until early 1980 he worked in various gangs doing work outdoors. From early 1980 until about September 1986 the appellant was "tipkeeper" at the Beaumont dump which was run by the respondent. The respondent closed the dump in September 1986. The appellant returned to the outside work force. He was by 5th February 1987, as the learned trial Judge said, "an established member of the cleansing gang". He worked under the supervision of a ganger named Brown and under the more superior officer of the Corporation, a man named Quinn. Let the learned trial Judge now speak. He said:-
     "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. 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." 3. The appellant was, on 5th February 1987, using a lawn edging machine. Of course, the machine had to be got on to the nature strip or kerb and sometimes had to be moved from carriageway up to the nature strip or footpath. The evidence of Quinn, which the learned trial Judge accepted, was that he had instructed his team to take the machine up on to the nature strip or the kerb by using pram ramps if they were there and if not by using driveways. He instructed his team repeatedly and firmly not to try to pull the machine up the kerb whilst walking backwards. The learned trial Judge described what happened thus:
    "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." And -
    "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.' 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. 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." 4. The appellant was an experienced worker. He was pulling the machine whilst he walked backwards towards the kerb. He fell. He hurt himself. 5. Let it be said that the machine was not stable. Let it be said that it was heavy. Let it be said that it was unwieldy. Still, even with all these concessions, I cannot think that the appellant makes out a breach of duty to him on the part of the respondent. All that happened is that an experienced worker ignoring instructions took a risk by taking a short cut and fell. Let it be said that the nature of the machine and his concern about the proximity of the kerb caused him to lose his footing. Still there is, in my opinion, no breach of duty by his employer. The fact that the appellant ignored the instruction of his supervisor, Quinn, to use driveways (there were no pram ramps there) is, of course, not the end of the matter. But here we have, as the learned trial Judge on sound grounds held, the ignoring of the instruction by an experienced worker who tried to take a short cut. He would have had to walk some 60 metres to find a driveway. That is what he should have done. That is what he was instructed to do. He chose to drag the machine whilst he walked backwards. He is, in my opinion, the author of his own misfortune. 6. It is well to have an early recollection of authority relevant to these issues here. The authorities are all well known and, of course, I do not attempt to refer to nor quote 5 from them all. They seem, over the years, to have been applied or not rather at judicial whim in any particular case. It cannot be said that over the last forty or so years that has been a steady adherence to the dictates of the High Court in important cases. Sometimes, one is tempted to say, there has been a too facile holding of negligence. 7. In Electric Power Transmission Pty Ltd v Cuiuli (1960-61) 104 CLR 177 an employee was required to cut wood with a tomahawk. A piece of wood flew up into his eye. At first instance he recovered damages. He held them after appeal to the Full Court of the Supreme Court of New South Wales. The High Court held that the case should not even had gone to the jury. Kitto J said this (at pp180-181):-
    "No doubt one must be on guard against reacting too
    strongly against the tendency which has been shown by some
    courts in recent years to put at altogether too high a level the
    duty of an employer with respect to the safety of his employee;
    but when I am asked to hold that a jury may reasonably think it
    negligent of an employer not to give a grown man instructions in
    looking after himself while cutting pieces of bush timber with a
    tomahawk, I feel obliged to decline on the ground of common
sense to do so." 8. Taylor J said (at p183):- "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; it is a duty of reasonableness and that standard cannot be said to have required the appellant so to specify or instruct." 9. I think that sometimes courts have sought very far to find breach of duty by an employer. 10. In Da Costa v Cockburn Salvage and Trading Co Pty Ltd (1970) 124 CLR at 201 Windeyer J quoted the ringing words of Lord Denning (uttered in a different type of case but applicable to 6 "employer's liability"). Windeyer J said: "Lord Denning once said, 'We must not condemn as negligence that which is only a misadventure'": Roe v Minister of Health (1954) 2 QB 66 at 87. 11. Even earlier than these cases the High Court decided Hamilton v Nuroof (WA) Pty Ltd (1956-57) 96 CLR 18. It is in my respectful opinion still the leading and most helpful case on "employer's liability". Dixon CJ and Kitto J said (at p25):-
    "The duty, to whomever it falls to discharge it, is that
    of a reasonably prudent employer and it is a duty to take
    reasonable care to avoid exposing the employees to unnecessary
    risks of injury. The degree of care and foresight required from
    an employer must naturally vary with the circumstances of each
    case." And (at p26)-
    "It has been said that a reasonable and prudent employer is
     (i) bound to take into consideration the degree of injury
    likely to result;
     (ii) bound to take into consideration the degree of risk of an
    accident;
     (iii) entitled to take into consideration the degree of risk,
if any, involved in taking precautionary measures." 12. Here the evidence was that there had been no other mishap with these machines. Of course, that is not decisive of the matter. But it is very important. It was treated as important in Raimondo v State of South Australia (1978-79) 23 ALR 513. There the appellant was an experienced painter. He sustained injury when a plank fell from two trestles which supported it on to his head. Planks had fallen on two or three other occasions but no-one else had been hurt. The Full Court set aside a judgment for the plaintiff concluding that a finding of negligence could not be sustained. The High Court upheld the decision of the Full Court. Mason J (as he then was) said at page 517:-
    "That the practice was unsafe in the sense that it could
    possibly lead to injury was not to be doubted. It scarcely
    needed the evidence of Griggs to demonstrate that a person who
    stands underneath a plank weighing 60 pounds whilst it is moved
    between supporting trestles exposes himself to some possibility
    of injury. However, the risk of injury was not high. Despite
    the prevalence of the practice and other practices similar to
    it, there was no recorded instance of injury occurring. Indeed,
    experienced painters regarded the risk of injury as being so
    slight or negligible that they continued to adopt the practice
    despite the possibility of injury which it entailed.
     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? That is the
    critical question." And His Honour answered the question which he had himself imposed, "No". At pp518-519 His Honour said:-
    "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." 13. In the case before us a simple task was given to an experienced worker. He was given an instruction. He ignored it. The risk of injury from the performance of the task was 8 slight in any event. The instruction not to go up the kerb was given not only out of safety but, I think, more importantly for preservation of the blades of the machine. In any event no more was required of the employer. 14. I return to Hamilton v Nuroof (WA) Pty Ltd (supra) and the passage quoted from the reasons of Dixon CJ and Kitto J at page 26 of the report. The reasonable and prudent employer here would have considered that the degree of risk of an accident to be very slight indeed. More than that the reasonable and prudent employer would have been entitled to think that an experienced worker would not only have heeded the direction of Quinn but seen for himself the wisdom of going to the driveway. The reasonable and prudent employer would have reasonably thought that no more by way of care for the safety of the worker was required of him. Nor was more required. 15. I have in the midst of making reference to authority plunged into the case to announce my opinion. Many points which I regard as incidental were debated before us. No fact or "law" emerges from debate which could lead to a finding for the plaintiff. 16. There was much debate and some evidence before us about which lawn edging machine the plaintiff was using at the time. In the result I think that it matters not. But I discuss the point. 17. The machines were not very stable. They were received into evidence. We saw them. They each had a single wheel. They have a narrow base and, I think, quite a high centre of gravity. I think that they may have been difficult to keep on balance at most times, even when just being pushed along. Evidence of Pantelios Sfyrios which the learned trial Judge found to be reliable was sufficient to prove this difficulty with keeping on balance. But in my opinion that does not matter. The appellant knew of that difficulty with balance, knew of any instability. It had on the evidence caused no prior mishap despite constant use of the machines. Anyone using the machines was perfectly capable of controlling them. 18. But stability was capable of improvement by modification. That modification consisted of the lengthening of the "centre shaft" of the machine. "Centre shaft" is my expression. It raised the effective height of the machine and of the handle bars and made it much easier to keep on balance. One machine was modified in the workshop of the respondent in early February 1987. There was no evidence that a modified machine was unstable. The case for the plaintiff was that he was using an unmodified machine. The case for the respondent was that it was a modified machine. 19. Each machine was marked with a number. One (which was predominantly a red colour) was 16/10. The other which was white was marked 16/9. The evidence shows that that machine, numbered 16/9, was modified. The appellant said that he did not use 164/10. So he must have been using 164/9 on the day of the accident (5th February 1987). I set out a "Workshop Jobsheet" of the respondent which was received into evidence and marked D19. "Name R. Dankowski WORKSHOP JOB SHEET DATE 4.2.87 Job No.164/9 Description of Work HOURS Est Act SP Edge Trimmer Lengthen handlepost to 2 ft overall 3 Requested by John Brown 2.2.87" 20. Machine No.164/9 came into the workshop with a request made by the ganger Brown. Mr R. Dankowski was the mechanic who did the work. He was unable to say from his own memory or from any note on what day the machine came in and on what day the work was done. But the exhibit bears the date 4th February. The natural inference was that the work was completed on that day. There is a tick marked against the nature of the work described in the exhibit. The probability is that the machine had been modified before its use on 5th February 1987. And Dankowski said that the machine would not have been let out of the workshop until the work on it had been done. 21. The learned trial Judge found:-

    "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." 22. I think the evidence of the Exhibit D19 and of Dankowski coupled with the appellant's evidence that he did not use machine No.164/10 supports that finding. I think it a sound finding. 23. The learned trial Judge further found:- "I am not able to find that the plaintiff has established that anything in relation to the machine caused or contributed to his fall." And -
    "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." 24. I have earlier stated my views about the correct result of the appeal. But I agree, too, with Mr Trim who wrote in his Outline -
    "The finding that the appellant was using a modified
    machine was fatal to the appellant's case, the essential
    foundation of which was the allegation that the instability of
    the machine he was using, because it had not been modified,
    caused or contributed to his fall. There was no evidence that a
    modified machine was unstable or that walking backwards with the
    machine was of itself potentially hazardous." 25. Mr Trim claims some support from the evidence of Mr R. Moulds, called as an expert on "safety" by the plaintiff.But the learned trial Judge correctly found that Mr Moulds was seeking to speak outside his expertise. I do not adopt Mr Trim's claimed support for Moulds. But I think his submission sound without that support. 26. We have reached the position then where we see that the appellant was walking backwards pulling a safe stable machine and proposing to mount the kerb despite instructions not to do so when he fell. It was a misadventure. 27. Mr Gray wrote in his Outline (and expanded in his forceful submissions) -
    "(h) In the case at bar the risk was particularly easy to
    eliminate by:
        (i) Installing pram ramps - this has subsequently been done
    at appropriate locations, being described as minor construction
    work. (T970)
        (ii) By modifying the machine to avoid its instability -
    this has subsequently been done in the defendant's workshop.
        (iii) By providing proper instruction, a teaching of the
    proper way to do the job, and by policing the instruction
    provided." 28. But I think that the risk was so slight that nothing more was required of the respondent. I refer to point (iii) in Mr Gray's remarks. I repeat. The task was simple. Risk of injury was very slight indeed. The appellant was an experienced worker. 29. The learned trial Judge said:-
    "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." 30. I agree. That leads to discussion about how the accident happened. 31. The appellant did not know. He thought of a possible way later. But he did not know. As will have been seen in the passage which I quoted from the reasons of the learned trial Judge at page 3 supra, the appellant said of how it happened: "I have got no idea to this day". There is no evidence that he tripped or fell when mounting the kerb. He fell before he had reached the kerb. 32. The learned trial Judge said:-
    "...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." 33. On the evidence the learned trial Judge was entitled to find that it was the "first of the three" - a fall as he said "for no reason at all". Mr Gray was very critical of this finding. He said that people do not fall for no reason. And that, of course, is correct. But I think that the learned trial Judge meant "for no proved reason at all". The context in which he spoke and the tenor of his judgment on the issue of "how did it happen" show that that is what he meant. 34. The ganger Brown was not called by the respondent. The case of Jones v Dunkel (1959) 101 CLR 298 is very significant on the effect of failure to call a witness. But it can be carried too far. There are valid comments adverse to the defendants which could be made about its not having called Brown, the immediate supervisor of the appellant. But I do not think that any such comment advances the case for the appellant. 35. I have spoken of the direction given by Quinn to use driveways. He is not proved to have given such a direction man to man to the appellant alone. Quinn instructed his team generally "that machines were not to be taken over the kerb stone but rather to be moved through the pramways or driveways whichever was the nearest" (words of the learned trial Judge). That was direction given to the team when the team was present listening to Quinn. The appellant was one of the team. The learned trial Judge accepted the evidence of Quinn about the giving of the instruction. He was entitled to do so. It is true that Quinn knew that the plaintiff did pull machines over the kerb. But I repeat my remarks that a reasonable and prudent employer would have seen too little risk to require more than further repeating of the instruction. Quinn's evidence was that he frequently gave such instructions. 36. Therefore, we have an experienced man performing a simple task carrying little risk of injury which had been performed by others for a long time without mishap departing from instructions and falling through no fault of the machine which he was pulling. Falling, too, before he reached the kerb. It is clear, in my opinion, that neither negligence nor breach of statutory duty has been proved in this case. 37. Mr Trim said that the case was very simple. Perhaps mounting the kerb whilst pulling the machine backwards might cause some risk of injury but the appellant did not reach the kerb. Therefore, nothing done or admitted by the respondent caused the accident. And Mr Trim emphasised that it was but an accident. This separation of the "journey" from carriageway to footpath into two parts may to some seem artificial. In this case I think that the submission offered by Mr Trim is sound. Whilst he was doing something, which was a simple task with a modified machine, the appellant had the misfortune to fall. No-one knows why. Perhaps the significance given by Mr Trim to the place of the fall as being removed from the kerb would have had less significance had there been evidence from the plaintiff that he was concentrating on the kerb if the evidence further established real instability of that machine. These two facts could cause a man to lost footing. But the machine was stable and no-one knows on what the plaintiff was concentrating. 38. The appellant claimed damages for a second alleged breach of duty. He returned to work when he was certified fit to return to light duties. He was fit, as the evidence established, only for light duties for a time when he returned. His case was that he was given work which was too heavy for him or put in a position where he could not avoid doing work which was too heavy for him at that time. 39. The appellant said that he made frequent complaints to Quinn about the heavy work which he was called upon to do. He said that he was supposed to be one of a team of three, that he was frequently one of a team of two, and that, therefore, he sometimes had to do heavier tasks than he had been instructed to do. The records of the respondent show that he often was at one of a team of two. But there was, as the learned trial Judge held, no evidence supporting the claims made by the appellant of constant complaint nor of the doing of heavy work at more than one site. The claim based on the second breach of duty is that frequent heavy work exacerbated pain the back. The learned trial Judge said:-
    "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
    16 operating the hydrant key has in any way made worse his
    physical condition.    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.    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.    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." 40. I think that the learned trial Judge was entitled to find as he did. But over and above that is the evidence of Quinn about the instruction which he gave to "his men" and to the appellant when the appellant came back to do light work. 41. I mention again that the learned trial Judge accepted the evidence of Quinn. Quinn gave this evidence:-
     "Q. I know you've said the content of what I read to you
    was the same. You've said 'I gave him a direction'. What did
    you say to Trevor on that morning, and what did you ask him to
    repeat back and what did he repeat back.
     A. I told Trevor that he would be driving the drain cleaning
    truck. He would be operating the on/off key for the actual
    hydrant, which is the water key, and that was all he was to do,
    nothing more at all. And I reinforced it to everyone that was
    in the room. Then I asked Trevor, I said 'Now, what are you
    going to do, Trevor?' - this is just a simple case of asking for
    feedback, which is a normal procedure I did and it was a habit I
    got into because I had quite a few ethnics in my department that
    sometimes couldn't pick things up because of English etc, and I
    asked for feedback all the time. But Trevor understood what he
    was going to do.
     Q. What did he say back to you.
     A. Trevor just recited more or less what I said, that he
    would be driving the truck, turning the key - I mean, it was a
    very straightforward order, and Trevor understood it completely,
    and the men that were in the room understood it.
     Q. Driving the truck and turning the key in any particular
    gang.
     A. In the drain cleaning." And there was evidence that if assistance was required it would be provided if asked. 42. If the appellant was sent out in a two man team he would have been entitled to refuse to do heavy work. He would have been entitled to refuse to do other than drive and turn the key to the hydrant. No doubt the employer is bound to take reasonable steps to protect the foolish as well as the wise employee. But that "principle" does not mean that any further step beyond the directions given by Quinn was required of the respondent in the circumstances of this case. The respondent was entitled to expect an experienced and intelligent man to avoid work outside the direction given by Quinn. 43. I think the learned trial Judge came to the correct conclusion on the alleged second breach of duty. 44. I agree with and respectfully adopt the remarks of Mullighan J about the decision of the respondent not to call Mr Brown. 45. I would dismiss the appeal.

JUDGE2 DUGGAN J I agree that this appeal should be dismissed for the reasons given by Bollen J. I also agree with the remarks made by Mullighan J concerning the trial judge's approach to the failure to call Mr Brown.

JUDGE3 MULLIGHAN J I agree that the appeal should be dismissed and I am in general agreement with the reasons expressed by Bollen J. I wish to comment upon only one matter raised during argument. 2. The appellant complained that the learned Trial Judge erred in his treatment of the decision of the respondent not to call a Mr Brown. In the grounds of appeal it is suggested that His Honour did not have sufficient regard to the well known principle expressed in Blatch v Archer (1774) 1 Cowp 63, 98 ER 969 but as the argument developed Mr Gray QC contended that the failure by the respondent to call this witness represented a departure from accepted standards of advocacy and that the rule in Jones v Dunkel and Anor
(1959) 101 CLR 298 should have been applied with special vigour. Indeed he went so far as to argue that the conduct of the respondent's counsel at the trial resulted in unfairness to the appellant to such an extent that the trial process miscarried. Mr Trim, who did not appear at the trial, contested these contentions. 3. In order to appreciate the issue raised by these grounds of appeal and arguments, it is necessary to mention briefly the factual basis for them. Mr Brown is a ganger employed by the respondent who supervised the appellant in his work at relevant times. At various times during the trial the respondent's counsel asserted that Mr Brown would be called and would give certain evidence. He was not called and no explanation was given for his absence from the witness box. We were referred to the following incidents during the trial. During the course of cross-examination of the appellant he was asked about raising the handles of the machines by inserting sleeves. It would seem that in order to obtain the appellant's assent to the proposition that there had been "general rumbling" by employees of the respondent about the height of the handles but that that concern had been addressed by the installation of sleeves, the cross-examiner asserted that Mr Brown would be called and would say that he had seen a sleeve at a field day and had suggested that the sleeves be installed. To some extent the appellant agreed. 4. Later in the course of cross-examination the appellant was asked if it was the normal practice to take the machine to the nearest driveway if no ramp was nearby. He disagreed. He was then asked, "If Mr Brown was to say that he personally instructed you to do that, you would disagree with that". The appellant answered in strong terms. He said he would call him a liar to his face. The witness Bingapore, also an employee of the respondent, was cross-examined in a similar manner. The next matter concerns a form containing information as to the circumstances of the incident when the appellant was injured. There is a statement contained in the form which appears to have been made by the appellant and is inconsistent with his evidence as to the circumstances of the injury. When this form was put to him in cross-examination he said that he signed the form in blank. The cross-examiner then put to him that Mr Brown would give evidence and would say that he asked the appellant what happened, wrote on the form and then the appellant signed it. The form was admitted into evidence and is Exhibit D1. During the course of cross-examination of Mr Moulds a suggested way to handle the machine in order to negotiate the kerb was put to him. Mr Moulds said that the machine could not be handled in that way. The cross-examiner then said:- "Q. That's extraordinary, because the ganger tells me that's the way he does it. The ganger tells us that's the way he observes everyone else do it." which was plainly objectionable for a number of obvious reasons. It was not a question designed to elicit evidence from the witness. It was a statement of an opinion of counsel and an assertion of what Mr Brown had told someone, presumably the respondent's legal advisers. Nevertheless there was no objection to the "question" and Mr Moulds responded by maintaining his own opinion. 5. Mr Gray contended that the conduct of counsel in asserting that Mr Brown would be called and would give certain evidence and the failure to call him had resulted in unfairness to the appellant. He argued that counsel must be scrupulously fair in cross-examination and must not mislead a witness and that it was not fair to witnesses to test them on their evidence against the assertion that a witness would be called and would say something to the contrary and then not call the witness. He also argued that the respondent's counsel at the trial had abused the privileges of counsel with regard to cross-examination and the learned Judge had been influenced by these matters in his findings as to credit of the appellant and the witnesses which supported the appellant's version of certain events. 6. It has not been established that counsel behaved improperly. There may be many reasons why Mr Brown was not called to give evidence. This is not a case of counsel giving an undertaking to call a witness with the consequence that his opponent does not seek to adduce evidence as to an important matter from other witnesses and then does not call the witness. Here, the respondent's counsel made assertions as to what Mr Brown would say when called and did not call him. The consequence is clear. In the absence of any acceptable explanation as to why he was not called, the learned Trial Judge was, in the circumstances, obliged to disregard the assertions as to what he would say, which assertions were contained in questions of the cross-examination and was, in the circumstances, entitled to conclude that if he had been called his evidence would not have assisted the respondent and would not have proved those assertions: Jones v Dunkel and Anor. (supra). If a witness had made a concession because of such an assertion, the learned Trial Judge would have been obliged to have disregarded that assertion. 7. It does not appear that either the manner or the nature of the cross-examination of the appellant, Mr Moulds or Mr Bingapore, caused any of them to alter their evidence. The concession about the sleeve is a matter of little consequence and probably would have been made even if a more conventional method of cross-examination had been adopted. There is no reason to suppose that any of these witnesses were in any way affected by this type of cross-examination. It is also clear that the learned Trial Judge did not place any reliance upon Exhibit D1. In his reasons for judgment the learned Trial Judge said:-

    "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." Later he said that:- "... 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 ..." 8. Mr Gray argued that the use of the expression "is somewhat reduced" demonstrates that the learned Trial Judge was influenced in his conclusion as to the appellant's credibility by the conduct of the respondent's counsel and the failure to call Mr Brown. In my view there is no basis for that contention. It is clear from the reasons for judgment that the learned Trial Judge based his conclusion that he did accept the appellant's evidence as to essential matters in preference to evidence in the respondent's case upon consideration of all of the evidence. His reasons for judgment make it clear that he did not regard Exhibit D1 as having any probative value against the case of the appellant or his credibility. 9. In these circumstances it is not necessary to reach any conclusion about the propriety of the manner in which the respondent's counsel cross-examined various witnesses.