(a) An employer owes a non-delegable duty of care to its employee to take reasonable care to avoid exposing him or her to unnecessary risks of injury. If there is a real risk of injury to an employee in the performance of his or her work, the employer must take reasonable care to avoid the risk by adopting a method of operation for the performance of the task which eliminates the risk, or by the provision of adequate safeguards. See Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at 842 - 843. Also see Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 307 - 308.

(b) The learned Judge did not make an error of law, as alleged. It was necessary for his Honour to determine what a reasonable employer in the position of the respondent would have done to avoid any foreseeable risk of harm to its employees from the condition of the seats in the trucks and boggers and the condition of the roads. The nature of the working environment was a relevant consideration in determining what reasonableness required of the respondent.

134 As to ground 13.2, the learned Judge did not err, as alleged. It is important to appreciate the precise terms of the relevant findings which his Honour made. In particular:

(a) his Honour was satisfied, on the evidence, that there were occasions when one or more vehicles had defective seats which were not promptly repaired or replaced and, further, there were occasions when roads were below optimal standard and when there was a lack of adequate road base: [248];

(b) his Honour was also satisfied, however, that the respondent had in place an appropriate maintenance and supervision system to respond to the harsh environment, and that it was abundantly clear from the documentary records that those deficiencies which had occurred were no more than would necessarily be expected and unavoidable in this particular activity: [249]; and

(c) his Honour reiterated, in effect, his earlier adverse finding in relation to the appellant's credit by noting, at [248], that if the position in relation to maintenance was as suggested by the appellant then the documentary records would have revealed the making of many more complaints:

" ... only a very small proportion of the PLODS tendered in evidence (37 out of approximately 6000) complain about vehicles or road conditions. The position is similar with the maintenance meeting minutes. ..."

135 During a period of approximately two years, the appellant made a complaint about his work conditions at one safety meeting. In addition, between 1 November 1998 and 24 December 1999 the appellant made one complaint regarding an unsafe seat (on 4 June 1999) and one complaint regarding the condition of the roads (on 1 April 1999).

136 According to Mr Stanley Gillman's evidence, the Golden Pig mine operated for 51 weeks per year and there were three shifts per day. The drivers of the trucks and the boggers completed 54 plods each week and other employees completed 42 plods each week, making a total of 96 plods per week. Between 1 November 1998 and 31 January 2000 there were 63 working weeks which generated 6,048 plods. The appellant referred to 26 plods which mentioned the need to repair or replace seats, and 11 plods which mentioned the need for road base.

137 It is apparent, therefore, with regard to seats, that the rate of complaints was 1.73 complaints per month, or 0.43 per cent of all plods completed by employees. Further, it is apparent, with regard to roads, that the rate of complaints was 0.73 complaints per month, or 0.18 per cent of all plods completed by employees. In other words, 99.57 per cent of the plods made no complaint about seats, and 99.82 per cent of the plods made no complaint about the roads.

138 There was no evidence that anyone had suffered any injury while driving a bogger or a truck at the Golden Pig mine (apart from the appellant's allegations in relation to himself).

139 The appellant gave evidence at trial that the seats and the roads were generally defective, but, as I have mentioned, the learned Judge did not accept his evidence in that respect. Numerous witnesses called by the respondent gave evidence which contradicted the appellant.

140 The appellant said in evidence that he complained regularly about the state of the roads throughout 1998, but in 1999 he reduced the frequency of his complaints because Mr Stanley Gillman threatened to dismiss him. Mr Stanley Gillman denied the appellant's evidence in that respect. The learned Judge did not make an express finding in relation to the conflict of evidence between the appellant and Mr Stanley Gillman. It is apparent, however, from the findings I have set out at par [134] above, combined with his Honour's finding, at [241], that the appellant had significantly exaggerated the extent of the deficiencies in the vehicle seating and the condition of the roads, that his Honour must have preferred Mr Stanley Gillman's evidence to that of the appellant.

141 The learned Judge did not, in his reasons, make an extensive analysis of the documentary evidence (in particular, the plods and the maintenance meeting minutes), but I am not persuaded that, in the circumstances, such an analysis was necessary.

142 The learned Judge did not refer to some evidence given by Mr McDonald (at T275 - 276 and T283 - 284) which, to some extent, supported the appellant's evidence in relation to the condition of the roads and the seats. It is plain, however, from the findings of his Honour to which I refer at [134] above that his Honour did not accept the appellant's case and that his Honour preferred the evidence of the witnesses called by the respondent.

143 The appellant's argument that a failure to maintain roads or seats "even for a short time created a risk of injury to the appellant-plaintiff" is not relevant in circumstances where it is plain, on the appellant's own evidence and the medical evidence which his Honour accepted, that an injury did not occur in one of those short periods.

144 Although the respondent's maintenance and supervision procedure in relation to the seats and the roads was imperfect, a perfect system is not required, and there was evidence which provided a reasonable basis for the learned Judge to make the findings which are attacked in ground 13.2. His Honour did not make an error as alleged, and the findings in question were reasonably open to him.

146 Ground 14 repeats, in substance, the earlier grounds. It adds nothing new. For the reasons I have given in relation to the earlier grounds, I find that ground 14 is without merit.

• The statement of claim
• The challenge to the learned Judge's findings of fact
• The appellant's evidence
• The evidence of the appellant's wife, Joanne Robertson
• The evidence of Dr Ian Gibson
• The evidence of Mr Bryant Stokes
• The evidence of Mr Peter Woodland
• The evidence of Dr Andrew Harper
• The evidence of Dr Michael Kent
• The evidence of Stanley Gillman
• The evidence of Dr Steven Chew
• The evidence of Mr Harold Schaeffer
• The evidence of Dr Alan Home
• The evidence of Peter Tynan
• The evidence of Gregory Gillman
• The evidence of Wayne Conway
• The evidence of Robert Leggerini
• The evidence of John Gillman
• The evidence of Craig McSkimming
• The evidence of Murray Giles
• The evidence of Justin Leda
• The evidence of Brian Bosenberg
• The evidence of Graham Lindgard
• The learned Judge's reasoning and findings of fact
• The grounds of appeal
• Ground 1
• Ground 2
• Ground 3
• Ground 4
• Ground 5
• Ground 6
• Ground 7
• Grounds 8 and 9
• Ground 10
• Ground 11
• Ground 12
• Ground 13
• Ground 14
• Conclusion