Zuvela v Cosmarnan Concrete Pty Ltd

[1996] HCATrans 340

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S90 of 1996

B e t w e e n -

PETER ZUVELA

Appellant

and

COSMARNAN CONCRETE PTY LTD

Respondent

BRENNAN CJ

TOOHEY J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 NOVEMBER 1996, AT 10.20 AM

Copyright in the High Court of Australia

MR C.T. BARRY, QC:   May it please the Court, I appear with my learned friend, MR P.A. BEALE, for the appellant. (instructed by Plowman & Thom)

MR B.M. TOOMEY, QC:   May it please the Court, I appear with my learned friend, MR J.A. McINTYRE, for the respondent. (instructed by Vandervords)

BRENNAN CJ:   Mr Barry.

MR BARRY:   Your Honours, we seek to demonstrate the errors we submit were made in the Court of Appeal by doing three things:  first, identifying the findings of the trial judge, which determine the issue of liability; secondly, examining what became of those findings in the Court of Appeal; thirdly, demonstrating that the approach to the matter taken by the Court of Appeal involved fundamental errors of principle in two respects:  first, in relation to the circumstances under which a Court of Appeal can interfere with a trial judge’s finding of fact and secondly, relating to the principles of law applicable to employer’s liability.

The trial judge made five findings of fact, if I may take your Honours to those:  the first appears at page 95 line 3, where his Honour found that:

The practice was that employees were generally free to shorten the handles, so that the length of the handle was suited to the individual employee.

The second finding of fact that the trial judge made was ,on the morning of the accident, the appellant was told to use a handle with a handle the longer length than he had been accustomed to, with a threat to his continued employment if he did not do so.  Your Honours will find that finding at page 98 line 30, his Honour said:

I concluded that on the morning of the accident the plaintiff was told to use the longer handled hammer, with a clear threat to his continued employment if he did not do so.

I will come back to the significance of that in due course.  The third finding of fact that was made by the trial judge was that the accident occurred on this occasion, notwithstanding the usual system, for the reasons indicated by his Honour at page 98, line 45:

No doubt, those involved had become blunted to the risk of injury, and, no doubt, the particular injury suffered by the plaintiff had unexpectedly serious consequences, but these are not acceptable defences.

His Honour went on then to make his fourth finding as follows:

The risk of injury was foreseeable, and easily prevented, but the defendant in effect told the plaintiff on the morning of the accident to use a hammer with what was, for the plaintiff, an inappropriately long handle.

That led his Honour to make his fifth finding of fact, and that is that the defendant was told to use the hammer and that - I withdraw that.  That led his Honour to the final conclusion that he made that there had been a breach of the employer’s duty of care.  Your Honours will find that at page 98, line 35, where his Honour says:

In these circumstances I find that negligence has been proved.  It was the defendant’s obligation to establish, maintain and enforce a safe system of work, and that obligation had to be carried out in the context of the plaintiff’s arduous, repetitive work.

Your Honours will observe that in coming to that conclusion his Honour made a finding in relation to the plaintiff’s evidence, which appears at page 98, line 27, which, in our submission, is critical.  His Honour based his finding upon his acceptance of the plaintiff as a truthful and reliable witness; both truthful and reliable.

When the matter came to the Court of Appeal, the Court of Appeal, with respect to their Honours, ignored his Honour’s findings that he had been:

told to use the longer handled hammer, with a clear threat to his continued employment if he did not do so.

And they decided that, for the appellant to succeed, it was necessary for him to demonstrate that he was forbidden to shorten the hammer handle, and that there was no evidence in favour of the proposition that he had been forbidden to do so. 

Their Honours then substituted their own view of the facts and the probabilities for that made by the trial judge.  This appears from the judgment of the Court of Appeal, of Mr Justice Meagher, if I might take your Honours to that.  It is at page 142; it commences at line 20.  His Honour says:

It is, however, of little consequence which witness one relies on.  All the witnesses tell the same story.  That story is that the practice of shortening the hammers was known to, and encouraged by, the appellant; the means of effecting the shortening was simple, well‑known to the plaintiff and supplied by the appellant.

Why, then, did the plaintiff not avail himself of the opportunity?  And, more relevantly,  how could Brownie J find for the plaintiff once it emerged that the plaintiff had not availed himself of the opportunity?

If I may pause there, your Honours, the short answer to that is, because the trial judge found that he had been told to use that particular hammer with the handle with the characteristic that it had.  That was the finding that was made by the trial judge, which led him to the conclusion that he came on the issue of liability.  There is no mention of that finding in these passages.  His Honour continued:

The answer would seem to be that his Honour took the view that the appellant forbade the plaintiff to shorten his hammer.  There is, in my view, no evidence whatever to support that finding.  The appellant’s evidence, naturally, is to the contrary.  But, what is more important, there is no evidence from the plaintiff to support this finding.  According to the plaintiff, when Mr Mario Nicomedes and the plaintiff arrived at the job site, he said to Mr Mario Nicomedes “this hammer no good to me”, to which the latter replied “What are you going to do?  Go home or stick with the job?”, evoking a response from the plaintiff “We stick with the job”.  His Honour obviously believed the plaintiff’s evidence and that means we must also.  However, that evidence falls a long way short of a prohibition of the appellant to shorten the hammer, a story which is very unlikely in any event.  Why would an employer risk losing a valued employee by prohibiting him from doing what everyone else did with the employer’s approval?

In our submission, the approach in the Court of Appeal involves three errors.  First, it was contrary to the principles relating to the circumstances under which an appeal court may interfere with the findings of fact of a trial judge.  Secondly, it was factually incorrect in that being told to use the hammer as it was is the same as a prohibition upon shortening it.  Thirdly, it reversed the obligation to institute and maintain a safe system of work by placing the obligation on the employee when the legal duty was on the employer.  If I may take your Honours to those three matters in turn.

The principles relating to appellant intervention in cases involving findings of fact based upon acceptance of the honesty and reliability of witnesses have been the subject of consideration by the Court in a number of cases in recent years.  The appellant relies upon the following three authorities which perhaps deal with the matter sufficiently.  The first, your Honours, is Brunskill v Sovereign Marine and General Insurance Limited.  May I hand your Honours photocopies of the judgment in that case.  It was not on our list. 

KIRBY J:   Are these authorities not engraved on everybody’s heart?

MR BARRY:   Apparently not everybody, your Honour.

McHUGH J:   Well, they are in this Court.  We refer to them on almost every special leave day for a start.

MR BARRY:   It perhaps then sufficient, your Honours, if I indicate to your Honours that we rely upon what was said in Brunskill.  At page 844 there is the passage in the judgment there.  Could I also perhaps simply put on the record we also rely upon what was said in Abalos v Australian Postal Commission (1990) 171 CLR 167, particularly at page 178, and more recently in Devries v Australian National Railways Commission (1993) 67 ALJR 528. I do not perceive it will be necessary to take your Honours to the particular passages in view of what has been said.

BRENNAN CJ:   But this is not a case where it is a conflict of evidence and questions of credibility turn upon demeanour.

MR BARRY:   It is in part because of the trial judge’s finding that the plaintiff was an honest and reliable witness and there being some evidence, not much, but some evidence to contradict what he said.  There was evidence of Mr Nicomedes senior ‑ ‑ ‑

BRENNAN CJ:   That is not very relevant once Justice Meagher says, “We must accept what the trial judge found was said”.

MR BARRY:   What his Honour said was he must accept what the trial judge found as to the truthfulness of the plaintiff, but he did not go the next, we say, necessary step of saying he is also bound to accept the findings of fact that the trial judge made based upon that, unless there is incontrovertible evidence to demonstrate ‑ or incontrovertible facts to demonstrate that that is wrong.

BRENNAN CJ:   His Honour obviously believed the plaintiff’s evidence, and that means we must also.  Then he is taking the evidence and says well, with the evidence it does not support the conclusion.

MR BARRY:   That, your Honour, leads to the second matter to which I am about to come, that is the finding of fact which we say was made in the Court of Appeal which was wrong.  May I take your Honours to that?  The error of fact finding that was made in the Court of Appeal was made at line 36 where his Honour said:

There is, in my view, no evidence whatever to support that finding.  The appellant’s evidence, naturally, is to the contrary.  But, what is more important, there is no evidence from the plaintiff to support this finding.

May I take your Honours to the evidence in the appeal book which, in our submission, does demonstrate that his Honour’s finding at first instance was correct.  First, your Honours, there is the passage at page 98 line 30.

GUMMOW J:   I am sorry, what was that page, Mr Barry - 98?

MR BARRY:   No; I withdraw that.  I have taken your Honours to his Honour’s findings.  I will take your Honours to the evidence.  The first is at page 18 line 20.  Here the appellant describes what happened when he arrived at work, or was about to start work on this day.  At line 20:

A.  Yes.  And one morning when I come to the yard this day I went up, this day accident, the boss said to me, “You go and former up a slab.”  I said to him, “All right”.  “I give you plan and put in truck.  You go out to Mario in Minto, to Minto area.”  We up there.  Before we left, I go check up my tools.  My tools no wasn’t on site.  I said to Nick, “Nick, what was my sledge hammer?”  He said, “Broken, only in another truck.  I bring you one long handle”, may be more longer than this sledge hammer. 

He was then indicating an exhibit that he had with him in the witness-box:

I put them in the truck I said “Nick, it is not good, it wouldn’t do nothing”.  No argue with that.  He said, “Let’s go to the job and let’s go to the work.”  We go to job there, we go to Minto and work.

Then at page 19, line 20:

Q.  What did you say to Mr Nick Nicomedes?
A.  I said to him, Nick, that hammer is not good to me”.  I said, “No comfortable.  I can’t work with that.”

Q.  I will just stop you there.  When you said that to him what did he say?
A.  He said “No”, he say, “No, nothing to talk about.”  He just say to go.  Go from the yard, go to work.  That is all.

Q.  What did you do then?
A.  What I do, I have to go in the truck, I go to work.

Then at page 24, line 40:

Q.  Did you have any discussion with Mario Nicomedes, he son, when you go to the job?
A.  When we come to the job I said to Mario, I said “That hammer is no good to me.”  He said “What you going to do?”  He said to me “Go home or stick with the job.”  I said, “We stick with the job” and we start to work.

Then at 37, line 50:

Q.  Did you ask Mr Nicomedes if you could off the end of the handle, as you say had been done before?
A.  No ask nothing because he does not talk about it, I can’t do that myself to cut the handle because the sledge hammer belongs to another truck, we get argument about it, I talk to him first, he does not saying anything to me, I work like that.

Q.  Did you ask him if you could cut off the extra length of the handle or not?
A.  No.

Q.  Why not?
A.  Because he does not give me any answer, he just say let’s go to work, he does not talk in the morning.  He pick up the sledge hammer for another truck, he put in there, let’s go.

And then further down that page at line 30:

Q.  Did you say anything to Mario about the length of the handle?
A.  Yes, I say:  “Mario, the handle too long.”

Q.  What did he say to you?
A.  He said:  “What you going to do, Peter.  Work or go home?”

At the bottom of page 38, line 53:

Q.  Why didn’t you ask Mario if you could cut off the end of the handle with your saw?
A.  No, he does not give me any chance, we go to work, that’s all.

Q.  I suggest to you, you never complained to Mario Nicomedes about the length of the handle at all?
A.  Yes, I complained to the job, when I went I say this handle too long.

Q.  I suggest there was nothing, if you wanted, to stop you from cutting off the end of the handle with the saw?
A.  No, because he doesn’t want to get to argument with somebody else because every truck have their own sledge hammers.

They are the only passages to which I wish to take your Honours in the evidence of the appellant. 

Our submission is that those conversations, which his Honour accepted as being correct, amounted to a direction or instruction to the appellant in the circumstances that, having been provided with a sledge hammer which was different from the one he normally used, he was directed to use that particular hammer as it was and as it had been presented to him for his use.  That was the finding of fact that the trial judge made and it was a finding of fact which amounted, in our submission, to a finding that he was not permitted - prohibited if one wishes to put it in a stronger way - from adapting that hammer in a way to which he thought was appropriate.  That is what the trial judge found as a fact, the finding being that he was told to use it.  In our submission, that finding of fact is unassailable, unless there is some incontrovertible fact to demonstrate that it is wrong.

The third error which, in our submission, was made in the Court of Appeal, was that in the approach that their Honours took to the principles applicable to employers’ liability, their Honours introduced a notion or concept at page 142 that if the system involved a mechanism under which the employee may have been permitted to himself adapt the tools to suit his requirements, that that was an answer to a case based upon an allegation of a breach of the employer’s duty of care.  Our submission, your Honours, is that that is wrong in principle; the principle which we would submit is that there is an obligation on an employer to devise, institute and maintain a safe system of work.  It is an obligation which imposes positive duties on the employer and relevantly, in this case, what it means is that once the appellant had made a complaint about the inappropriate tool, the appropriate response, if the employer had wished to discharge the duty imposed upon it, would have been either to direct or instruct the employee to adapt the tool so as to overcome the perceived danger about which he complained.

That was not done, in our submission.  It led his Honour, at first instance, to find there was a breach of the relevant duty, and our respectful submission is that that conclusion is in accordance with the established principles, and the Court of Appeal’s reasoning is not.  May I take your Honours to some of the cases - four of them - dealing with employer’s liability?  May I take your Honours first to Kondis v State Transport Authority (1984) 154 CLR 672.

KIRBY J:   Conceptually, there are only really two points you are making.  The first point, the Abalos/Devries point, is the foundation for the second point, is it not?  It is not two points, it is only one.  The first is, you say there was a finding of fact which was open to the judge which depended a bit on credit and the Court of Appeal was not entitled to interfere with it; that is the Devries ‑ ‑ ‑

MR BARRY:   Yes.

KIRBY J:   And then, the second point is the non‑delegable duty of the employer. 

MR BARRY:   That is so.

KIRBY J:   They tried to delegate to the employee - they are the two.

MR BARRY:   The two are related in that the second error compounded the first.  First, their Honours ought not to have interfered at all, in view of the findings of fact that were made.  Secondly, when they decided that they would interfere with the findings of fact made by the trial judge, they applied the wrong legal test of employer’s liability.  They took the view that it was a sufficient answer for the employer to have some system under which the employees may, from time to time, shorten the handles themselves.  Our submission is that that is wrong in principle, because the obligation always remains the obligation on the employer.

KIRBY J:   But in any case, in the facts of this case, an excuse was given as to why that was not available.  This was a hammer in another person’s truck, and he did not want to deal with that, and it was open to the trial judge to accept that that was a reason why that was not an available option in this case, or at least that it was open to the employee to infer that from what had been said.

MR BARRY:   That is so, your Honour.  And, in addition, that that may have been the reason why he was told to use the hammer as it was, rather than the usual practice of shortening it to suit his particular requirements.  Could I take your Honours to a passage in Kondis, at page 687, at about point 8:

The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters.

At page 689, point 8 in the judgment of Mr Justice Murphy:

It is well-settled that an employer has a personal, non‑delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk -

And from your Honour the Chief Justice, page 693, at about point 5:

This Court has recently restated the employer’s duty of care in Ferraloro v. Preston Timber Pty. Ltd.:

“The employer’s duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task.”

Next may I take your Honours to McLean v Tedman (1984) 155 CLR 306 and in particular to the passage which appears at page 311 point 8 and over the page:

The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.  This was acknowledged even in the days when contributory negligence was a common law defence:  Wheare v Clarke; Henwood v Municipal Tramways Trust.  The employer is not exempt from the application of this standard vis‑a‑vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system.  The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence.  There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety.  In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury.  In accordance with well settled principle the employer is bound to take care to avoid such a risk.

In this case, once the employee has said, “This sledgehammer is uncomfortable for me to use.  It is awkward.  I do not wish to use it,” then the application of those principles would have required the employer to take some positive steps to do something about it. 

May I take your Honours next to Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 and at page 308 point 2 in the joint judgment of Justices Mason, Wilson and Dawson, this appears:

We digress to remark upon the formulation preferred by Windeyer J, with whom McTiernan, Kitto, Taylor and Owen JJ, agreed, Vozza v Tooth & Co Ltd, namely:

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

This passage has been repeated more than once in recent decisions of the Court:  Raimondo v South Australia; McLean’s Roylen Cruises Pty Ltd.  It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, “without unduly impeding its accomplishment”, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances.  If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task.  The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.

Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is “not a low one”:  O’Connor v Commissioner for Government Transport.  Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case.  It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances.  The Court had occasion to make this point recently in Waugh v Kippen, in distinguishing from the case in hand the decisions in Turner v South Australia and Casto v Transfield (Qld) Pty. Ltd.

On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community.

Finally, may I take your Honours to Nicol v Allyachts Spars (1987) 163 CLR 611. First, may I take your Honours to what was said at page 616 at about point 8. This is a case where the plaintiff was a director of the defendant company. The following passage appears:

That the respondent was under a duty to provide a safe system of work for its employees is not in doubt.  The fact that the appellant was, at the time of his accident, a director of the respondent did not affect his status as an employee:  Lee v Lee’s Air Farming Ltd.  Nor did it alter the duty of care owed by the respondent to him along with its other employees.  Counsel for the appellant placed some stress on the fact that an employer’s duty to provide a safe system of work may not be delegated.  The non-delegability of the duty is well settled:  Kondis v State Transport Authority; Stevens v Brodribb Sawmilling Co. Pty. Ltd.  But the notion of non-delegability has very little to do with the case in hand.

And their Honours continued.  Then there is a passage upon which we particularly rely on the judgment of Justice Dawson at page 625 at the top of that page where his Honour says:

it does not seem to me that the duty of an employer and an employee in such regard can ever be co-extensive or co-terminous.  The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken.

So that even if it be the case that there was a system for shortening handles, that is a matter about which the employer continues to have an obligation and it is not a matter about which the employee is expected to himself provide for the safety of the equipment which he is required to use.  Our submission, your Honours, is that, in those circumstances, there was a clear error in the Court of Appeal and that the orders that ought to be made are those that are set out in the outline of submissions.  Those, your Honours, are our submissions.

BRENNAN CJ:   Thank you, Mr Barry.  Mr Toomey.

MR TOOMEY:   Thank you, your Honour.  I hand to your Honours our outline of arguments.

BRENNAN CJ:   Mr Toomey, how is it that the plaintiff’s case was that, to use the words in paragraph 9 of your outline:

there was a system under which skilled workmen were allowed.....to alter the handles ‑

when the evidence was, as emerged from the plaintiff, that he was not allowed to alter the handles?

MR TOOMEY:   Your Honour, the answer is a little more complex than it might appear.  The evidence of all those who gave evidence: the plaintiff; his fellow worker, Ciacciarelli, who was called by the plaintiff, and the two Messrs Nicomedes, who were principals of the defendant company, all said that the practice of the business was that the workmen, who were all skilled workmen, were allowed to shorten the handles to whatever size they wished, and that there was, in every truck, and there was in the truck the plaintiff was working from on the relevant day, a handsaw which was used, among other things, for that purpose.  Now, his Honour’s finding that the appellant was forbidden to shorten the hammer is bound up with his finding that it was with a threat to his continued employment.

TOOHEY J:   But, in a sense, they are evidentiary matters, are they not?  You say in paragraph 1 of your outline that:

(“the plaintiff”) is seeking to make a case which he did not plead, did not argue.....and expressly abandoned in the Court of Appeal.

But his case was that there was a failure to take proper care for his safety by providing him with a hammer which was unsuitable.

MR TOOMEY:   Yes, your Honour.

TOOHEY J:   The respondent comes back and says, “But, you could’ve shortened the handle”, and the appellant says, “Well, no, I was told I was not to”.  In a sense, are they not evidentiary matters?

MR TOOMEY:   They are, your Honour, but the case is complicated by the fact, and we say the case went off the rails, because of the manner in which the finding at first instance was made.  I want to make it plain that we attack that finding in the Court of Appeal.  We attack the finding that it was one of our grounds of appeal to the Court of Appeal, and we attack the finding that he had been forbidden under threat to his employment.

BRENNAN CJ:   Why did you bother to attack it if it was not in issue?

MR TOOMEY:   Your Honour, because the finding was made.

BRENNAN CJ:   Was the finding abandoned in the Court of Appeal?

MR TOOMEY:   The threat was abandoned, but if you have a look at page 132 of the appeal book, the bottom of the page, Justice Powell put to my learned friend:

I interpret what you saying is he was unreasonably required to use the instrument?

That is the unshortened handle.  Over the page:

That is not what I am putting.  He put his employer on notice there was foreseeable risk of him using this hammer, the handle of which was inappropriate.

Of course, that is not the basis on which his Honour found for him.  His Honour found for the plaintiff on the basis that he had been forbidden to alter the handle and, thus, required to use it and that that stricture had been imposed by a threat to his continued employment.  Their Honours, as I understand their finding, were not satisfied that the finding which his Honour the trial judge made could be supported by the words which were supposed to have been used to impose that stricture, but they were influenced also, as appears from the argument in the Court of Appeal, by the fact that there were a number of, we would say, at least, failings in the judgmental process.  His Honour, in making that finding which is at page 98, line 30, says:

However, given the plaintiff’s evidence of his conversation with Mario Nicomede -

which has been read to your Honours by my learned friend -

the absence of a denial by Mario Nicomede of this account of the conversation, and my acceptance of the plaintiff as a truthful and reliable witness -

Now, your Honours, indeed, Mario Nicomede was asked at page 78, line 40:

Q.  Do you recall Mr Zuvela ever complaining on that day that the handle of the sledge hammer was too long?
A.  No, I don’t.

That is in-chief.  So he was denying the conversation.  It is, in our respectful submission, inaccurate of his Honour to say that there was the absence of a denial by Mario Nicomedes of the account of the conversation.  He said, “I do not recall any such conversation and, your Honours, he was not cross‑examined about it.  That was in-chief.  Not one word was directed to him to suggest or even to seek a concession that such a conversation might have taken place; that is as it was left.

BRENNAN CJ:   Well now, what do you make to that?  I mean, if you are saying that his Honour should not have said that or used it as a basis for his finding, in the Court of Appeal, there is a concurrent finding that it was said, so we have got concurrent findings of fact.

MR TOOMEY:   Well, there is that, your Honour, and there is another deficit, we say, in the fact-finding process, and that is that the plaintiff relied upon the ‑ ‑ ‑

BRENNAN CJ:   Let me take you back to the question I just asked you. You have got concurrent findings of fact; why then should this Court interfere?

MR TOOMEY:   Well, your Honour, in our respectful submission, what the Court of Appeal were actually saying was that they were dissatisfied with the process by which his Honour had derived at the conclusion that the plaintiff was forbidden to use the hammer.

KIRBY J:   That is completely contrary to what Justice Meagher said, because he said that his Honour had relied on the plaintiff and so must we.  So your point would be a new trial point; it would not be a verdict point.

MR TOOMEY:   Yes, it would be a new trial point, your Honour.

KIRBY J:   Well, it is not a verdict point; you got a verdict.

MR TOOMEY:   Yes.

KIRBY J:   That cannot stand then on your own argument.

MR TOOMEY:   Well, your Honour, the basis upon which their Honours found against the plaintiff was that they were satisfied there was a system in place which allowed him to act in a way which would satisfy the employer’s duty.  Now, there is no argument, with all the authorities that my learned friend has put to your Honours nor could there be, as to the employer’s duty, but it is wrong to suggest that the Court of Appeal took the law to be that they could require a man to do his own work.

What the employer did was to provide the facilities for skilled workmen to make adjustments to their tools.  The burden of the argument in the Court of Appeal is reproduced at page 132 of the appeal book, and it is obvious that what their Honours were concerned about was that on the evidence before them, the practice was:  you are a skilled man; people like different lengths to the handles of their hammers; the employer allowed, as every witness agreed, including the plaintiff, the handles to be shortened.

BRENNAN CJ:   That is in the ordinary situation.

MR TOOMEY:   Yes, your Honour.

BRENNAN CJ:   Now, there is a specific finding about this situation.  He was not allowed.  I mean, what is the trial judge to do if he finds that here was a situation where, if it had been the ordinary one, the five inches would have been chopped off.

MR TOOMEY:   Yes.

BRENNAN CJ:   But for some reason or other, Mario Nicomedes says, “Use the hammer or go home”.

MR TOOMEY:   Your Honour, with great respect, he did not say that.

BRENNAN CJ:   Did he not?

MR TOOMEY:   No, he said ‑ ‑ ‑

BRENNAN CJ:   I am looking at page 98 line 30 as to his conclusion.

MR TOOMEY:   Yes, but the words he actually used were said by the plaintiff to be ‑ ‑ ‑

GUMMOW J:   Page 38 line 35.

MR TOOMEY:   I am sorry; it appears in-chief far more extensively at page 24 line 40, your Honour:

When we come to the job I said to Mario, I said “That hammer is no good to me.”  He said “What you going to do?”  He said to me “Go home or stick with the job.”  I said “We stick with the job” and we start to work.

Their Honours in the Court of Appeal took the view that that could not bear the meaning that his Honour put on it in the context of this man’s employment.

BRENNAN CJ:   That is right, and that is the question, is it not?

MR TOOMEY:   Yes.

BRENNAN CJ:   Were they entitled so to find.

MR TOOMEY:   But, your Honour, they were also entitled to have regard, in our respectful submission, to the fact that that finding was bound up with the plain threat to the employment and there was a material piece of evidence which his Honour did not advert to.  Their Honours, in the Court of Appeal, dealt with that in argument.  The material piece of evidence was that Mr Nick Nicomedes, the father, who spoke to the plaintiff at the depot - Mario Nicomedes, the son, spoke to him out on the job in the passage I have just read to your Honours - and Mr Nick Nicomedes expressly denied that the conversation which the plaintiff said had taken place, and which was part of the plaintiff’s claim of the manner in which it developed - “You go out on the job”, says the father.  “You go to work or go home”, says the son ‑ Mr Nick Nicomedes expressly denied that any such conversation had ever taken place.  He did not say he did not remember it.  He said on page 92 at line 1 at the top of the page, in cross‑examination:

Q.  What I am asking you is, then, in light of that and because of that, do you agree that possibly Mr Zuvela did have a conversation with you about the length of the handle and you can’t remember it because you were only asked to remember it a week ago?
A.  I do remember that question never been asked from Peter Zuvela to me, discussed the length of the handle.  The answer is no.

BRENNAN CJ:   Well, there was a conflict of evidence.

MR TOOMEY:   Well, it is not referred to, your Honour.

BRENNAN CJ:   It might not be referred to, but the trial judge found that he believed the plaintiff.

MR TOOMEY:   Yes, he did.

BRENNAN CJ:   So, he just have rejected that evidence.

MR TOOMEY:   Well, your Honour, he referred, as we say, to the absence of a denial by the other witness, Mario Nicomedes, and we say, with respect, that that was incorrect.  He also made a finding as to the attitude of the defendant.  He said that the defendant had conceded something which the defendant had not conceded, and an affidavit was put on in the Court of Appeal and we were allowed to argue.  That was that his Honour said that it was conceded by the defendant that the longer handled hammer was dangerous.  That had not been conceded at all and, in our respectful submission, it is apparent that there were a number of factual errors in the judgment, and those are two of them. 

Now, your Honours, the force of what is said to be said by Mario Nicomedes looses something if, indeed, the earlier conversation with is father never took place, or may not have taken place.  His Honour had made one error ‑ ‑ ‑

BRENNAN CJ:   But there is no good addressing us on that, surely, Mr Toomey.  If the finding of fact has been made in the terms in which Justice Brownie made it, in terms of accepting credibility, it is impossible to put a proposition that his findings as to the meaning to be attributed to Mr Mario Nicomedes’ statement is to be assessed in the light of the denial by the father.

MR TOOMEY:   Well, your Honour, one may influence the other.  Where the evidence is that the system is that the workmen are allowed to use the tools which are provided to them, to shorten the handles, if the evidence is that both the father and the son effectively tell the man not to do it, that is one thing.  But where the father denies that conversation, surely that is material to consideration as to whether the second conversation was likely to have taken place.

TOOHEY J:   Well, it may be that the trial judge stated things unnecessarily strongly against the plaintiff in the sense of focusing upon this, “Well, you might lose your job.”  I mean, one would not have to go that far, one would think, if, in fact, this man had been provided with a hammer which was unsatisfactory.  One can imagine all sorts of situations in which you have got a gang getting ready to go out on a job and someone says, “Well, look, this hammer is not really very good,” and they are told by the foreman, “Well, we have not got time to mess around with that, we have got to get out to work.”  It does not need a threat to say, “Well, if you do not use this hammer you are going to lose your job,” for an unsafe system to be inferred.

MR TOOMEY:   But, your Honour, with respect, the mechanism by which his Honour arrived at the finding was that he found there was the threat.  And their Honours, in the Court of Appeal, were not satisfied that in the context of this employment that you could read the words so.

TOOHEY J:   But if, in the circumstances, the appellant reasonably believed that either his job was at threat or in effect he was being told that he had to use that particular piece of equipment, is that not enough?

MR TOOMEY:   Your Honour, there is a little difficulty about it.  You see, the pleadings did not provide a basis for the defendant to prepare a case to meet either an allegation that he was required to use the longer‑handled hammer or that he was threatened with his employment.

TOOHEY J:   But he did not.  This really is what I think I was trying to put to you a moment ago, Mr Toomey.  The plaintiff’s case is that he was provided with an unsatisfactory piece of equipment.  It is the defendant who comes back and says, “But you did not have to use that.  You could have sawn X number of inches off the handle to make it satisfactory.”  I mean, in a sense that arises out of the defendant’s case rather than the plaintiff’s.

MR TOOMEY:   I think not, your Honour, because it was the evidence given by the plaintiff ‑ ‑ ‑

TOOHEY J:   No, but as a matter of pleading, I am saying, because you are criticising the pleading, as it were, for not foreseeing that this sort of answer might be provided to the claim of negligence.

MR TOOMEY:   I see your Honour’s point, but the point is that in providing the particulars of negligence no particular was provided - and they appear at pages 2 and 3 - that he was required to use an unsuitable tool.

McHUGH J:   What about 7b and c?

MR TOOMEY:   They are of a failure, your Honour, but the requirement was never pleaded and as for the matter that his Honour relied upon, that is, that he was under threat if he did not use it, that really did not come up in the case until the judgment.  There was no cross‑examination of either of the Messrs Nicomedes by the plaintiff’s counsel to suggest to them that they had intended to threaten his employment.  When Mr Mario Nicomedes denied any recall of any such conversation, no questions were asked of him to suggest it had occurred and what the Court of Appeal were attacking, in our respectful submission, was the finding in the way in which it was made because it was not an issue in the case.  It arose for the first time in the judgment.  If you look at the submissions of the defendant’s counsel at the trial which are reproduced in the appeal book 112, your Honours will see that nothing is directed to this question of a threat at all and that is because, I am informed, it was not relied upon.  It was not addressed upon ‑ ‑ ‑

BRENNAN CJ:   Mr Toomey, this pleading, however it was framed, was dealing with a situation that was extremely simple:  there was a handle attached to a sledgehammer which was said to be too long and the plaintiff said, “The handle is too long,” and the defendant said, “Well, you should have chopped some off,” and the plaintiff said, “You wouldn’t let me.”  That was the case, was it not?

MR TOOMEY:   Yes, your Honour.

BRENNAN CJ:   Well, why does the question not arise:  was the handle too long?  Would you let me cut it off?  Did you stop me doing so?  Those had to be the issues.

MR TOOMEY:   It does, your Honour.  With respect, as your Honour knows, the bare issues in a case are not the only issues in a case.  Cases are run on manifold issues.

BRENNAN CJ:   Provided there is no obfuscation, that is true.

MR TOOMEY:   May I ask if your Honour has ever seen such a case?  But, your Honour, one of the things that his Honour relied upon and, indeed, we would submit with respect, that it does appear to have loomed large in his mind, was that there was this threat to his continued employment.  Now, that matter was not raised at the trial.  There was no cross-examination by the plaintiffs directed to the defendants, to the people who were supposed to have made it, to suggest that any words they had used were intended to convey a threat.  Their Honours took the view, which we say was a sensible view:  this man was their number one sledge hammer man.  He had been with them for ‑ it was variously described in the evidence as seven years or 10 year; they regarded him very highly, and their Honours regarded it as fanciful that Mario Nicomedes, when he said to him, “What are you going to do, go to work, or go home?”, was doing anything other than saying, to descend into the vernacular, “Come on, mate, get into gear”, which was not a forbidding, at all ‑ ‑ ‑

TOOHEY J:   That is why it seems to me that, if anything, the trial judge may have put the matter unnecessarily highly against the plaintiff.

MR TOOMEY:   It was not necessary for him to make the finding on the threat, your Honour, but when he made it and tied his finding to that threat, in our respectful submission, that is where the finding becomes questionable.

McHUGH J:   It is not so much whether it was a threat or not, as to whether or not the plaintiff could have reasonably understood it in that sense.

MR TOOMEY:   He did not say he did, your Honour.

TOOHEY J:   There is evidence, at the foot of 37 and the top of 39, that there was an argument about using this hammer, or not using it.

MR TOOMEY:   I think he said he did not argue about it, your Honour.

McHUGH J:   He said, “We get argument about it.”

TOOHEY J:   “We get argument.”

MR TOOMEY:   No, I think he is saying there that he thought if he cut the handle he might get an argument because it belonged to another truck.  I do not think he is saying he argued with Mr Mario Nicomedes.  It is not without difficulty.

TOOHEY J:   If he was told by the foreman, someone in a position of authority, to get on with the job and not worry about anything else, would that not be enough if, in fact, the hammer was an unsafe piece of equipment.

MR TOOMEY:   Your Honour, if he was told, “You’ve got to use that piece of equipment,” in the state it is in we have not got a cross‑appeal on or a notice of contention.  We do not challenge the ultimate finding that there was a danger in the man using the longer handle.  We challenged it in the Court of Appeal.  We lost there.  We do not challenge it now.  We accept that, but their Honours looked at the fact that the plaintiff never said that there was a threat to his employment or that he took it as a threat to his employment.  The man who was supposed to have uttered it is in the witness box and says, “I don’t recall any such conversation.”  He was not cross‑examined to say the conversation did take place.  He is not cross‑examined to concede it might have taken place and he is certainly not asked the crucial question whether he might have threatened the plaintiff’s employment had he not used the handle as it was, which is the basis of his Honour’s finding.  In those circumstances, you are left with the bare words.

BRENNAN CJ:   Did Mr Mario Nicomedes deny the existence of any conversation about the length of the handle?

MR TOOMEY:   No, he said, your Honour, that - I should take your Honour to the exact words because they are of importance.  At page 78, question at line 40:

Q.  Do you recall Mr Zuvela ever complaining on that day that the handle of the sledge hammer was too long?
A.  No, I don’t.

He was never asked - now, that is in‑chief, your Honour.  He was never asked to concede that that conversation might have taken place.  He was never asked anything about any suggestion that he might have threatened the plaintiff’s employment.  It was simply left.  That is as it was left.

TOOHEY J:   Realistically, he was a man who had been swinging this hammer for ten years.

MR TOOMEY:   Yes.

TOOHEY J:   Apparently an entirely satisfactory employee.

MR TOOMEY:   There is no doubt about that.  He was a highly valued employee.  That is part of our case.

TOOHEY J:   Well, when there is evidence that suggests there was at least some discussion, some unhappiness on the part of the plaintiff in using this particular hammer, it is probably a giant step to conclude that he must have been told something, or he believed he was being told something, that required him to get on with the job and use that hammer.

MR TOOMEY:   Well, your Honour, that may be so, but that is not the basis on which his Honour made the finding.  His Honour made the finding that there was a clear threat to his employment.  That was what his Honour used as the basis for saying that he was forbidden to shorten the handle.  He was forbidden to shorten it, in effect, by being told that he would be fired if he took the minute and a half or two minutes or whatever it would have taken to get the handsaw in the back of the truck and cut the five inches off the handle when he was down the road.  Their Honours took the view that that was fanciful.  You take a man who was as highly valued as this one was, you take words which are as equivocal as these words were and you take the unsatisfactory nature of the manner in which the finding was made that there was a threat to his employment, their Honours just did not accept it.  Accepting Abolos, Jones v Hyde and Brunskill at their fullest effect, there is still a jurisdiction in the appellate court to supervise the fact finding of the lower court and, if it is unsatisfactory, to set it aside.

BRENNAN CJ:   What is unsatisfactory about a conclusion, given the use of the words, that it was understood reasonably by the plaintiff as meaning, “Get on with the job or go home.”?

MR TOOMEY:   He did not say so, your Honour.

McHUGH J:   But he did not have to.

MR TOOMEY:   It means, with great respect, that it is his Honour’s conclusion as to the meaning, not the plaintiff’s conclusion as to the meaning, because the plaintiff did not say he took that meaning from the words and he was not asked what meaning he took from the words or whether he regarded it as a threat; the words are left as they are.  His Honour says, “I take them to mean this”.

BRENNAN CJ:   But the plaintiff was asked, “Why didn’t you do something?”, and he said, “Because I asked Mario and this is what Mario said”.

MR TOOMEY:   Yes, but he does not say, “I regarded it as a threat to my job”.

BRENNAN CJ:   No, those words were not used, that is true.

MR TOOMEY:   No, your Honour, with great respect, I can see that that argument does not appeal to your Honour but, your Honour, if that is crucial to the finding of fact and it is just left there, the relationship is not explored.  He is not asked, “Are they hard employers?”; “Had anyone been fired?”; nothing like that.  You are left with the words hanging in the air, and from them his Honour draws the conclusion that there was a threat to his employment.

McHUGH J:   Plus demeanour.  He is a new Australian in the witness‑box ‑ ‑ ‑

MR TOOMEY:   Yes, your Honour.  He made express mention of demeanour in respect to the way he used the hammer.

McHUGH J:   Does it have to be.  He is there.  The trial judge no doubt got the very strong impression that the plaintiff regarded it as a threat.  As any trial lawyer knows, cases in appellate courts are unreal compared to what goes on at the trial level.

MR TOOMEY:   Your Honour, I am sorry to say that that what goes on at the trial is unreal compared to what happens in the appellate courts too, but I know what your Honours are putting to me.

TOOHEY J:   But all this arises, in a sense, out of your case, not out of the plaintiff’s case.  It is enough for the plaintiff to say that their evidence are the relevant evidence, “Well, I was provided with a piece of unsatisfactory equipment”, but you come back and say that, “You could have done something with it”, and his reply is, “Well, I couldn’t in the circumstances because I really wasn’t allowed to.”  It seems to me that speaking in terms of threat to employment is perhaps going further than one would need to go to meet that answer, but in fact the trial judge ‑ ‑ ‑

MR TOOMEY:   Your Honour, with great respect, I agree.  If the intention of Mario Nicomedes in saying to him, “What are you going to do?  Are you going to work”, was to say, “You have no choice in this employment but to go there and work”, without a threat to his employment but, “I’m the boss, you go and work”, that is enough but, you see, the difficulty is that his Honour made this finding on the basis of the threat to the employment.  If he had said nothing about the threat to the employment, it might have been a different thing, but he said, “I make this finding because he was told not to use it coupled with a clear threat to his continuing employment”.  It was important in his Honour’s finding.  If he was unjustified in making that finding then, in our respectful submission, the drawing of the conclusion was illegitimate.  Your Honours, as to the question of ‑ ‑ ‑

KIRBY J:   It still remains a new trial point, so even on your own argument this appeal has to be upheld.

MR TOOMEY:   If his Honour did not deal with other matters which could have won the case for the plaintiff.

KIRBY J:   He said he was a reliable and honest witness.  He believed him and he accepted his evidence, so that it is not a matter on which - and he also said, “In view of that conclusion I do not have to deal with other ways in which the plaintiff presented his case”.  All of this comes down to whether the inference that his Honour drew, that the words spoken relayed in this broken English by a manual worker, amounted to a threat to the employment.  Now, threat, perhaps was putting it very high, but he was told, “What are you going to do?  Are you going to get on with your work or are you going to go home?”.  I think with a manual worker, even a reliable and long‑term manual worker, and in the current economic circumstances, it would be open to a trial judge to infer that that posed a danger to his ‑ ‑ ‑

MR TOOMEY:   It was not very current, your Honour, it was in 1985, or 1986, was it?  Yes, 1986.

KIRBY J:   Well, 1986, not all that different.  It is a question whether it was open to a primary judge, a fact finder, to draw an inference that from this broken language, if he did not get on with his work he had to go home, which is effectively rejecting his employment.  Those are the options he was given, according to him.

MR TOOMEY:   The way the conduct of the case was effected by nothing being asked of Mr Zuvela as to what he took from it, was that the defendant was not faced with a factual issue to its knowledge of the threat to employment.  No questions were asked by counsel for the defendant of the Messrs Nicomedes which would otherwise have been asked as to whether indeed there was any threat to his employment.

BRENNAN CJ:   But Mr Toomey - I am sorry.

MR TOOMEY:   I am sorry, your Honour, I was only going to conclude by saying whether or not there was a perceived threat to his employment could depend upon whether there was actually a threat to his employment.

KIRBY J:   The worker gave the evidence of what was said.  Had he tried to say what he thought it meant you would have objected, rightly so.

MR TOOMEY:   I am not sure that the objection would have been - I was not there, your Honour ‑ ‑ ‑

KIRBY J:   I realise that, but your side would have said that he can only say what was said.  You cannot give evidence of what he thought or what he inferred or ‑ ‑ ‑

MR TOOMEY:   I am not sure that that objection would have been successful.  I think he may have been allowed to say what he took from it.

KIRBY J:   All I am saying is that in the context of a trial by a person whose first language was not English, and was clearly imperfect, the fact that the nuances were not explored is understandable or, at least, it was open to the judge to accept that it was so.

MR TOOMEY:   Your Honour, that may be so, but it may also result in an unsatisfactory determination of the question of fact.  We are not criticising Mr Zuvela about this.  What we are saying, however, is that there are two sides to a trial; a defendant also is entitled to present its case properly to the constitutional tribunal, and what happened here was a finding, a crucial finding, against us, which we had not explored at the trial because it was never made clear.  The plaintiff did not plead it.  I accept he did not have to plead it, but he could have pleaded it.  He did not say it.  He did not cross‑examine Messrs Nicomedes to suggest it, and then the finding was made in that context.

BRENNAN CJ:   Mr Toomey, to take up the point that Justice Toohey raised with you, if the defendant did not succeed in establishing that an opportunity had been given to the plaintiff to cut the excessive length off the handle, he had to succeed.

MR TOOMEY:   Could I just amend that slightly by saying, your Honour, we would concede that if he did not have an opportunity, not, if he was given an opportunity.

BRENNAN CJ:   Right, if he did not have an opportunity.

MR TOOMEY:   Yes, I would concede that that is correct.

BRENNAN CJ:   And if we start with the proposition that he was given a handle that was too long; then we come to the next stage and that is, did he have an opportunity, and the onus, evidential onus, of establishing that was on you.

MR TOOMEY:   I think, with great respect, that is not so, your Honour.  I think the evidence, or onus, would have been on the plaintiff to establish he did not have the opportunity, because his own evidence ‑ it was not only in later evidence that it came out that the system was that you got the handle and you cut it to your own size.  I think the evidentiary onus was on the plaintiff.

BRENNAN CJ:   Well, on whomever the onus may have rested, the ultimate onus of establishing that the provision of defective equipment did not amount to negligence, was necessarily on you.

MR TOOMEY:   Yes.

BRENNAN CJ:   Well then, you discharged that onus, or sought to, by showing the usual course of being able to cut it off.  The evidence then negatived it in the circumstances.

MR TOOMEY:   Yes.  Your Honour, there is no doubt that it comes down to the point that his Honour’s fact finding was unsatisfactory on that point.

BRENNAN CJ:   Yes.

McHUGH J:   But does it not come to this, that on your case the practice was to cut off an unsatisfactory handle.  The plaintiff was accepted as truthful when he said he complained about it.  The question is then, why did he not cut off the handle, against that background?  The answer seems obvious.  It is because he understood that he had no opportunity, that he was told to get on with the work and perhaps even that his employment was at risk.

MR TOOMEY:   There is one other straw which I would like to add to the pile, your Honours, in the hope that it might have some effect and that is that this accident occurred after morning tea.

McHUGH J:   I thought most accidents, at least in the railways, occurred before morning tea.

MR TOOMEY:   Yes, most of them occur about 7.30 on a Monday, your Honour, as I remember it.  This accident occurred after morning tea.  Now, that is a fairly important fact in this case where the plaintiff is saying that he had no opportunity to alter the handle because he went out there first thing in the morning and the accident happened after morning tea and there is a finding to that effect at page 95:

He drove some 70 pegs before a smoko break, and about 6 or 7 pegs after that break.

McHUGH J:   What is the significance of this, that he was under the influence of tea?

MR TOOMEY:   I did not know that they had banned that yet, your Honour.  No doubt it is the next or perhaps it is a carcinogen.

TOOHEY J:   I do not understand that, Mr Toomey.  All this happened before the first hammer broke.

MR TOOMEY:   The first hammer had broken before they started in the morning, your Honour.  He was given the long‑handled hammer.  He took that out to the job.  He says he was told, “Get on with the job.  Don’t cut the hammer.”  He drives 70 pegs before the smoko break.  There was a smoko break and he drives some afterwards.  Now, there is absolutely no reason why he could not have cut the handle at the smoko break and it does cast rather a different factual light on it.  I do not want to try your Honours’ patience by giving you more along the line of teaching my grandmothers to suck eggs.  Those are our arguments, may it please your Honours.

BRENNAN CJ:   Thank you, Mr Toomey.  Mr Barry, and in particul you might like to say what you think appropriate in relation to the passage in the transcript before the Court of Appeal at pages 132 to 133.

MR BARRY:   Yes.  That exchange, your Honours, commences after what I said at page 132, line 40:

There is no doubt events on the morning of the accident took everyone by surprise.  There is no doubt if it had occurred a few days before or notice had been given the hammer had been broken, the appropriate arrangement would have been put in place.  What happened was Mr Zuvela’s hammer had been broken and certain things occurred.

Then his Honour Mr Justice Meagher asked me this:

Is it your case that there was a positive prohibition on the shortening of the instrument?

My answer was:

Not in so many words.  There was a discussion with two people in a position to make directions on behalf of the employer which produced the result that they were not prepared to hear any further discussion about it and wanted him to go ahead and use it.  There was no prohibition in relation to shortening it but there was something that came fairly close to it in the discussion that took place.

I do not wish to appear bold but, in my respectful submission, that is precisely what occurred.  The trial judge does not say anything about forbidding; all he says is, “He was told to use that hammer”.  There is no appearance of the word “forbidding” in the learned trial judge’s reasoning.  What he finds is that he was told to use that hammer, and being told to use a hammer in the circumstances where the employer and the employee are probably otherwise good friends, but perhaps a bit agitated, a bit hot‑headed.  He says, “I do not want to use this, I do not like it.”  The fellow says, “What are you going to do, are you going to work or are you going to go home?”

Now, maybe a rational analysis of contractual relationships between commercial persons would not lead to the conclusion that that was an assertion that the employer took the view that that was a repudiation of the contract of employment.  But in the circumstances of this case, what the employee took it to be was what it was.  The reference to going home can only mean one thing in those circumstances; “Are you going to stay at work, or are you going to abandon your employment?”  It may not have been a prohibition, but telling someone that, “This is the implement you are to use, and you are to use it in its present form,” is, with respect, precisely what his Honour found, and it was a finding that was open to him, bearing in mind that his Honour had the benefit of hearing what the appellant had said

and the way in which it was said.  The way in which the conversation was recounted is as important, if not more important in these circumstances, than the actual words themselves. 

Whether, on the true construction of the words as they appear in the transcript, the Court of Appeal agreed, or does not agree, with the conclusion the trial judge made is, in our respectful submission, an irrelevant inquiry when one looks at the circumstances under which they were said.  So, your Honours, what was said at page 132 was the case that was put at trial, and in the Court of Appeal, and here, and, in our respectful submission, the appellant was entitled to succeed, and the only reason that the Court of Appeal allowed the appeal was, with respect, that they fell into the three areas that we have sought to identify.  Those, your Honours, are our submissions.

BRENNAN CJ:   The Court will adjourn briefly in order to consider what course it will take in this matter.

AT 11.38 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.03 PM:

BRENNAN CJ:   The judgment I am about to deliver is the judgment of the Court. 

The appellant was employed by the respondent, his employer, to drive pegs into the ground for the support of concrete framework.  He used a 14 lb sledge hammer for the purpose.  He was accustomed to using a hammer with a shortened handle which suited his physique and manner of work.  He had been employed by the respondent and an associated company for 10 years prior to the accident.  The handle of that hammer broke and he was supplied with a hammer with a longer handle.  He held that hammer with a grip that left the proximal end of the handle protruding towards his body.  The hammer slipped or bounced off the top of a peg and the end of the handle was driven into his groin.  The physical consequences of the accident were severe.  He sued his employer for damages for negligence and recovered a judgment in an action in the Supreme Court of New South Wales. 

The trial judge Mr Justice Brownie found that the danger of injury from swinging a hammer was increased by the length of the hammer handle which was unfamiliar to the appellant.  The risk of injury from this source was foreseeable but it was easily preventable by sawing the excessive length off the handle.  This was a practice that was often followed by employees.  A saw was available for the purpose. 

If the appellant could and should have shortened the handle, it is arguable that any negligence that might have been found by reason of the provision of an unsatisfactory piece of equipment for the appellant’s use would be negatived.  That was essentially the respondent’s case.  However, basing his finding on the evidence of the appellant whom he accepted as “a truthful and reliable witness”, Mr Justice Brownie concluded “that on the morning of the accident the plaintiff was told to use the longer handled hammer, with a clear threat to his continued employment if he did not do so.”  His Honour summarised the evidence on which this finding was based:

“He said that he was told by Kostanjo (or ‘Nick’) Nicomedes, who effectively controlled the defendant, to use another hammer, with a handle of ordinary length, and to go to the job site, to work under the direction of Mario Nicomedes, the son of Nick.  Mario Nicomedes and the plaintiff were the only employees of the defendant on that site on that day. 

According to the plaintiff, whose command of English is imperfect, when the two men arrived at the site, he said to Mario Nicomedes that the hammer he then had was ‘no good to me.’  Mario Nicomedes replied: ‘What you going to do?’ and then: ‘Go home or stick with the job’; and the plaintiff replied: ‘We stick with the job’, and proceeded to go on with his work, driving pegs.”

Judgment was entered for the appellant. 

On appeal to the Court of Appeal a different view was taken of the facts.  Mr Justice Meagher, with whose judgment Mr Justice Handley and Mr Justice Powell agreed, referred to a passage in the appellant’s evidence including the following:

“Q.  Did you ask Mario if you could cut off several inches from the end of the hammer?
A.  No, he does not say anything.

Q.  Did you request him whether you could do it?
A.  No, ask nothing.

Q.  What did you say to Mario about the length of the handle?
A.  Because the sledge hammer, I can’t say nothing to him because if first to me, he does not do nothing to me.

Q.  Did you say anything to Mario about the length of the handle?
A.  Yes, I say:  ‘Mario, the handle too long.’

Q.  What did he say to you?
A.  He said:  ‘What you going to do, Peter.  Work or go home?’

Q.  Did you ask him whether you could cut off the end of the handle?
A.  I not exactly sure, anything I ask about it.

Q.  That is what had happened before, wasn’t it, the end of the handle had been cut off?
A.  In my handle.

Q.  The old hammer?
A.  Yes.

Q.  Why didn’t you ask Mario if you could cut off the end of the timber handle on the one you were given that day?
A.  No, ask nothing.

Q.  Why not?
A.  Why I got to ask him?

Q.  Why didn’t you ask Mario if you could cut off the end of the handle with your saw?
A.  No, he does not give me any chance, we go to work, that’s all.”

His Honour referred also to other evidence that showed that ordinarily there was no reason why a worker should not cut a handle that was too long down to the desired length.  Mr Justice Meagher then said:

“Why, then, did the plaintiff not avail himself of the opportunity?  And, more relevantly, how could Brownie J find for the plaintiff once it emerged that the plaintiff had not availed himself of the opportunity?

The answer would seem to be that his Honour took the view that the appellant forbade the plaintiff to shorten his hammer.  There is, in my view, no evidence whatever to support that finding.  The appellant’s evidence, naturally, is to the contrary.  But, what is more important, there is no evidence from the plaintiff to support this finding.  According to the plaintiff, when Mr Mario Nicomedes and the plaintiff arrived at the job site, he said to Mr Mario Nicomedes ‘this hammer no good to me’, to which the latter replied ‘What are you going to do?  Go home or stick with the job?’, evoking a response from the plaintiff ‘We stick with the job’.  His Honour obviously believed the plaintiff’s evidence, and that means we must also.  However, that evidence falls a long way short of a prohibition of the appellant to shorten the hammer, a story which is very unlikely in any event.  Why would an employer risk losing a valued employee by prohibiting him from doing what everyone else did with the employer’s approval?”

The judgment in favour of the appellant was set aside and judgment was entered for the respondent.  This appeal is brought by special leave from the judgment of the Court of Appeal. 

In this case, the respondent’s liability depended either on the provision of unsafe equipment or on the direction allegedly given to the appellant not to delay his work to remedy the excessive length of the handle.  If the respondent did not succeed in establishing that the appellant had an opportunity to shorten the handle, the appellant had to succeed.  The trial judge was constrained to make his findings on evidence given, inter alia, by the appellant whose command of English was obviously imperfect.  The hammer that the appellant was given to use belonged, as he said, to another truck and “every truck have their own sledge hammers”.  In these circumstances, the trial judge had to find not only whether Mr Mario Nicomedes had made the remark, “What you going to do?  Go home or stick with the job?” but also whether the appellant was reasonable in attributing to that remark the meaning of a command to use the long‑handled hammer with a threat if he did not do so.  When the evidence was given in broken English by a witness upon whose demeanour the trial judge relied, it is impossible to say that there was no evidence to support the critical finding or otherwise to warrant its dismissal. 

When a Court of Appeal is reviewing, by way of rehearing the findings of fact made by a trial judge who has had the advantage of hearing and observing the witnesses, the Court of Appeal should not treat the appeal as a hearing de novo.  As Chief Justice Barwick said in Whiteley Muir Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at page 506, followed in Warren v Coombes:

“The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable.  Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong.  Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them.  Here no doubt the appellate court has more room for setting aside that conclusion.  But, even in that case, the fact of the trial judge’s decision must be displaced.  It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference.  It must be shown that the trial judge was wrong.  This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn:  or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge’s decision is wrong.”

Of course, if the relevant fact is an inference to be drawn from the established facts, the Court of Appeal may be in as good a position as the judge at trial:  see Warren v Coombes (1979) 142 CLR 531 at page 551. Mr Justice Meagher in the present case seems to have regarded the appeal as turning upon the inference to be drawn by the Court from the words used by Mr Mario Nicomedes. With respect, that was not the question. The question was whether the words used were reasonably understood by the appellant to bear the meaning that Mr Justice Brownie attributed to them. The appellant’s understanding was conveyed by his oral testimony and the demeanour he exhibited ‑ including the gestures and expressions accompanying the oral testimony. The reasonableness of his understanding the remark in the way in which he was found to have understood it is clear enough. If the choice is offered to “go home or stick with the job”, it was reasonable for the appellant to come to the conclusion that continuity of employment was in issue. It is not to the point to query why an employer would risk losing a valued employee if it is found that that is precisely what the employer was understood to have done.

We would allow the appeal and restore the judgment of Mr Justice Brownie.  The judgment of the Court of Appeal should be set aside and in lieu thereof the appeal to that Court should be dismissed with costs.  The appellant should have his costs in this Court.  The appellant intends to apply for a special order with respect to his costs in the Court of Appeal.  We shall hear what his counsel now has to say.

MR BARRY:   Your Honours, I discussed this with my learned friend, Mr Toomey.  I understand that he agrees that, given the offer of compromise that was filed in the Court of Appeal, which is in accordance with what is contained in paragraph 6 of the appellant’s outline, that the appropriate order in relation to the costs in the Court of Appeal is that the appellant should have the costs in the Court of Appeal on an indemnity basis from the date of the filling of the offer of compromise in that court.

MR TOOMEY:   Yes, that is correct, your Honours.

MR BARRY:   I should say the date of the serving of the offer of compromise, it is an inter partes procedure, not one that involves the court.

BRENNAN CJ:   The order of the Court will be as follows.

The appeal will be allowed with costs.  The judgment of the Court of Appeal will be set aside and in lieu thereof the appeal to that court will be dismissed with costs on an indemnity basis from the date of serving of the offer of compromise in the Court of Appeal to that court.  The appellant will have his costs, as I say, in this Court.  Is that the appropriate form of order, Mr Barry?

MR BARRY:   Yes, your Honour.  Is it necessary for your Honours to formally order that the judgment of Mr Justice Brownie be reinstated or does that automatically follow?

BRENNAN CJ:   Not once the appeal is dismissed.

MR BARRY:   May it please the Court.

BRENNAN CJ:   Is there anything further, Mr Toomey?

MR TOOMEY:   No, your Honour.

BRENNAN CJ:   Very well.  The Court will adjourn until Tuesday next at 10.15.

AT 12.16 PM THE MATTER WAS CONCLUDED