CAMPBELL v BURROWS ENGINEERING No. SCCIV-01-613 [2002] SASC 96

NYLAND J: For the reasons expressed by Gray J I agree that the appeal should be allowed and the matter remitted for hearing before another District Court Judge.

GRAY J: This is an appeal from a decision of a judge of the District Court, dismissing the plaintiff's claim.

The appellant, the plaintiff ("Mr Campbell") sought damages for personal injury and loss arising from an incident alleged to have occurred at his workplace. Burrows Engineering Pty Ltd ("Burrows Engineering") and Lucon (Australia) Pty Ltd ("Lucon"), two of the defendants are respondents to the appeal.

Mr Campbell claimed that at approximately 3.00am on 1 October 1994, whilst he was working at the premises of Adelaide Brighton Cement ("ABC") scaffolding lifted. He fell through the scaffold platform and onto a conveyor belt. Mr Campbell was working as a welder at the time. He had been hired out to Burrows Engineering. Lucon engaged Burrows Engineering (including the services of Mr Campbell) to re-line a hopper with stainless steel plates at the ABC site at Port Adelaide. Mr Campbell was working 10 hour night shifts, 7 days a week. Complete Scaffold Services Pty Ltd ("Complete Scaffold") supplied and erected scaffolding for the work on the hopper.

Mr Campbell claimed that Burrows Engineering, Lucon or ABC (or alternatively all three) occupied the site and were all under a common law duty of care and a duty pursuant to s 23 of the Occupational Health, Safety and Welfare Act 1986 ("The Act") and acted in breach of the section. Section 23 is in the following terms:

"The occupier of a workplace shall ensure so far as is reasonably practicable -

(a) that the workplace is maintained in a safe condition; and

(b) that the means of access to and egress from the workplace are safe."

Mr Campbell also claimed that Burrows Engineering acted in breach of section 19 of the Act. Section 19 provides:

"(1) An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular -

(a) shall provide and maintain so far as is reasonably practicable -

(iii) plant and substances in a safe condition; and

(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and

(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.

(3) Without derogating from the operation of subsection (1), an employer shall so far as is reasonably practicable -

(a) monitor the health and welfare of the employer's employees in their employment with the employer, insofar as that monitoring is relevant to the prevention of work-related injuries; and

(b) keep information and records relating to work-related injuries suffered by employees in their employment with the employer and retain that information and those records for such period as may be prescribed; and

(c) provide information to the employer's employees (in such languages as are appropriate) in relation to health, safety and welfare in the workplace (including the names of persons to whom the employees may make inquiries and complaints about matters affecting occupational health, safety or welfare); and

_(d) e_nsure that any employee who is to undertake work of a hazardous nature not previously performed by the employee receives proper information, instruction and training before he or she commences that work; and

(e) ensure that any employee who is inexperienced in the performance of any work of a hazardous nature receives such supervision as is reasonably necessary to ensure his or her health and safety; and

(f) ensure that any employee who could be put at risk by a change in the workplace, in any work or work practice, in any activity or process, or in any plant -

(i) is given proper information, instruction and training before the change occurs; and

(ii) receives such supervision as is reasonably necessary to ensure his or her health and safety; and

(g) ensure that any manager or supervisor is provided with such information, instruction and training as are necessary to ensure that each employee under his or her management or supervision is, while at work, so far as is reasonably practicable, safe from injury and risks to health; and

(h) monitor working conditions at any workplace that is under the management and control of the employer; and

(i) ensure that any accommodation, or eating, recreational or other facility, provided for the benefit of the employer's employees while they are at work, or in connection with the performance of their work, and under the management or control of the employer (either wholly or substantially), is maintained in a safe and healthy condition."

Further, Mr Campbell claimed that Complete Scaffold owed him a duty of care to ensure that the scaffolding was erected, installed and maintained in a safe manner. The claim against Complete Scaffold was dismissed by consent during the trial.

Mr Campbell claimed that as a result of the fall he suffered injuries to his neck, spine, left leg and foot. He also suffered headaches, anxiety and depression.

The learned trial judge ("the trial judge") dismissed the claim. He identified inconsistencies in Mr Campbell's evidence and rejected his evidence, except where corroborated.

The trial judge found that Mr Campbell did not inform the night shift foreman, Mr West, that his fall had been caused by loose scaffolding:

"I find that to be quite incredible. Here is a man, working on difficult welding jobs in a confined space, who claims to have had a fall due to someone else's incompetence or negligence. One would expect that if the fall was caused by scaffolding planks that were lashed improperly or not at all, that would be something that the plaintiff would wish to tell Mr West about immediately. Had he done so, there could have been, and I'm sure would have been, an immediate investigation into the cause of the alleged accident.

The plaintiff's failure to mention to Mr West any problem with the scaffolding planks makes it extremely difficult for me to accept that improperly fixed planks were the cause of any fall."

There was uncertainty in the evidence in relation to the level of scaffolding at which Mr Campbell was working when the accident occurred. The trial judge concluded it was likely that Mr Campbell fell only a metre or so, rather than some metres as asserted. However, he was unable to make a finding about the distance of the fall, the level of the scaffolding, precisely what Mr Campbell was doing at the time of the fall or whether the scaffolding was improperly fixed. The trial judge concluded:

"It is impossible for me to determine what caused the fall."

He acknowledged this would not prevent Mr Campbell's claim succeeding but continued:

"...in a case in which there is no other evidence, apart from that of the plaintiff, that there was a fall caused by improperly fixed scaffolding planks, and in which the plaintiff's evidence has been found to be unreliable, it is extremely difficult to find any breach of statutory duty or negligence on the part of any of the defendants.

... there is absolutely no evidence of any knowledge by the defendants of any lack of safety of any of the scaffolding nor any evidence that the defendants ought to have known that the scaffolding was in any respect unsafe and likely to cause injury to the plaintiff."

The foregoing remarks of the trial judge emphasised the importance of Mr Campbell's credit at trial. The issue of credibility was relevant to most of the complaints advanced on appeal by Mr Campbell. If the attack on the trial judge's findings concerning Mr Campbell's lack of credit are made out it is difficult to avoid the conclusion that a retrial is inevitable. Mr Campbell's account of the incident was critical.

Burrows Engineering and Lucon submitted that an order for a retrial would not necessarily follow from a setting aside of the trial judge's findings on credit. It was contended that on any view of Mr Campbell's evidence his claim was bound to fail. It was said that even if the trial judge's findings on credit were overturned, the appeal should still be dismissed. It was also contended that Mr Campbell's evidence lacked credibility for many reasons other than those referred to by the trial judge. The difficulty confronting these contentions is that without hearing the evidence at trial it is impossible to weigh the arguments concerning credibility.

Mr Campbell complained that the trial judge erred in excluding evidence of an interview between an investigator and Ronald Burrows a director of Burrows Engineering ("the Burrows Statement"). Evidence of that interview was sought to be tendered in the form of an audio recording and a written transcript. It was said that the exclusion of the evidence of the interview led to a number of consequential erroneous findings. It was further complained that the trial judge was in error in declining to permit Mr Campbell to amend his statement of claim during trial following an amendment to the defence of Burrows Enginering. The amended defence pleaded an alternative assertion of how the fall occurred. Counsel for Mr Campbell sought to amend the statement of claim to claim in the alternative that liability arose even if the defence assertion was found to be correct.

Mr Campbell was working on the morning of 1 October 1994. His evidence was that shortly before the end of the shift he fell some metres, landing on his coccyx. He said he was disoriented and lay on the ground for a few moments. He signed out of his working area, the confined space, at 3.20am. Mr Campbell went to the site office and reported the incident to Mr West. He informed Mr West that he had fallen, hurt his leg, and was going home. He saw a doctor who attended to the wound on his leg and later went to see his general practitioner for further tests and treatment.

Mr O'Malley, a friend of Mr Campbell's gave evidence. He said that Mr Campbell had come home after his shift that morning and informed him that he had fallen at work. Mr Campbell told him he had a cut leg, a headache and had fallen through some planks.

As earlier observed the Burrows statement was excluded from evidence by the trial judge. He did so on the basis that he considered the Burrows statement to be inadmissible hearsay. Mr Burrows was the site supervisor of the maintenance work at the ABC premises. Burrows Engineering accepted that Mr Burrows had authority to make the Burrows statement.

Counsel for Mr Campbell submitted that the Burrows statement was relevant, probative and admissible. It was said that it tended to prove that Burrows Engineering were aware of a practice of untying and leaving untied scaffold planks. The statement also evidenced an investigation undertaken by Mr Burrows, as site supervisor, concerning the state of the scaffolding. The investigation followed a report made to him regarding the incident. It was said that the statement was admissible as a statement against interest.

It was further submitted that the Burrows statement was relevant to refute an assertion of recent invention on the part of Mr Campbell. It was said that the statement provided secondary evidence of what had been written on a white board by Mr West following the report about the incident made to Mr West by Mr Campbell at the end of the shift. The statement suggested that the report made by Mr Campbell included a reference to a loose plank. The Burrows statement was also relevant with respect to the credit of a friend of Mr O'Malley. The credit of that witness was attacked and the Burrows statement was said to be relevant to restoring his credit.

It was submitted that the relevance of the Burrows statement was demonstrated by the trial judge's reasons. Reference was made to the reasons given for rejecting Mr Campbell's evidence, the trial judge's incredulity that Mr Campbell had made no report on the morning of the incident, and the reference to there having been no investigation. The Burrows statement provided probative evidence that Mr Campbell had made a report about a loose plank to Mr West. It confirmed that Mr West had recorded the details of the report on a white board. The statement was said to be secondary evidence of these matters. The statement also confirmed that there had been an investigation.

"Q. Are you aware of [the Campbell] incident?

A. I am aware of it, yeah, yeah. I was, I was informed by my night shift supervisor.

Q. Alright so this was early hours of the morning?

A. Er, we have [a] system where a white board is in the main office and any incidents during the night are put on that so that when I come in on the day shift, I can see what's happened on the night shift.

Q. Okay, did you make any enquiries in relation to this incident?

A. Yeah, I [I] just asked why the plank was loose, more so to make steps that there was no other planks in the same situation. Now, I never got any answers to what actually happened, whether someone had moved a plank or [or] it was undone or what, I don't know, but it obviously was wrong at the time and that's, that's, I just put it down and checked everything that was there on the day shift and everything was okay."

This part of the statement it was said, directly contradicted the trial judge's finding that Mr Campbell failed to mention to Mr West that there was a problem with the scaffolding.

Mr Campbell further contended that the Burrows statement disclosed that Mr Burrows entered the confined space to investigate the scaffolding on the day of the incident:

"Q. Alright, were you shown or was it indicated to you where the actual incident occurred?

A. Yeah, well I went right through the whole area.

A. And that was upper levels, lower levels, we got, we got scaffold out all the way up here and different levels, across the top, through the hoppers and this incident was through the hoppers.

A. Yeah, yeah, and I don't know any, any more than that."

Counsel for Mr Campbell submitted that the Burrows statement provided not only evidence of an investigation, contrary to the trial judge's finding, but also cast doubt on the accuracy of the register used to monitor workers entering the confined space area. The only entry on 1 October for Mr Burrows was at 4:00pm. It was said that the inspection must have occurred prior to that time and had not been entered in the register. Doubts were also cast over the evidence of other witnesses, who relied on the register as an accurate record of their movements in relation to the confined space area.

The Burrows statement was also said to disclose knowledge that the scaffolding planks were moved at times by workers not employed by Complete Scaffold:

"A. Now, what does happen from time to time and this is what our, I instruct my supervisors and me leading hands to look out for is that someone, because they're working here, might have wanted to look down here or do something a little bit lower than the plank, so they undo the lashing and pull the plank away. And then after they've done what they've done they've put the plank back and forget to tie it up."

A. Alright, so we instruct that only licensed scaffolders, of which I have a couple working for me on the same job, just to do that sort of thing, are there. And my follow-up the next day was that was that there was no planks undone or anything. So the reason why that plank tipped up I've got no idea."

As earlier observed the trial judge ruled that the Burrows statement was hearsay and inadmissible. In the course of argument he remarked:

"I can't accept that, [referring to counsel's submission in that the statement was admissible as an admission against interest]. I rule that the statement is not admissible unless it were to be used to prove a previous inconsistent statement after he has given evidence."

In Fraser Henleins Pty Ltd v Cody[1] Latham CJ addressed a similar issue:

"In the present case, the questions were not answered on compulsion and the director was also the manager of the whole business of the company. If he could not bind the company by an admission, no-one could do so. It has never been held that only a formal act by the board of a company can bind the company by way of admission. In my opinion, the objection to the admissibility of the evidence fails."

The Burrows statement was admissible as relevant and probative evidence regarding knowledge of the risk of loose planks, and of the investigation undertaken on the day of the incident. It was admissible as a statement against interest. Its status was not limited to that of a prior inconsistent statement. The statement should not have been rejected as hearsay.

The Burrows statement was also admissible to refute the allegation of recent invention. That suggestion was made by counsel for Burrows Engineering, adopted by counsel for Lucon and appears to have been accepted by the trial judge. The statement was secondary evidence of what had been written on and later removed from the white board. It led to the clear inference that a report at least in those terms had been made to Mr West at the end of the shift.

As was said by Dixon CJ in The Nominal Defendant v Clements[2]:

"If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction."

A finding about the credit of a witness is a matter of discretion for determination by the trial judge. The principles that guide an interference with the exercise of a judge's discretion by appellate courts were discussed in Devries v Australian National Railways Commission[3] where Brennan, Gaudron and McHugh JJ said:

"More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'."

The primary question for determination is whether the trial judge wrongly excluded the Burrows statement and as a result failed to have regard to relevant and probative evidence.

The Burrows statement was relevant and probative. It confirmed that a report was made by Mr Campbell at the end of the shift or the morning of the incident. It was directly relevant to refute the suggestion of recent invention. It negated the trial judge's conclusion that Mr Campbell did not report a problem with the scaffolding. It also negated his conclusion that there had not been an immediate investigation. It showed an awareness of the risk of loose planks. If the Burrows statement had been admitted and accepted it would have provided support for the assertion that a contemporaneous complaint was made about a loose plank. It would also have confirmed the evidence of Mr O'Malley whose evidence the trial judge rejected. The credibility of Mr Campbell was a critical matter at trial. In rejecting Mr Campbell's evidence the trial judge failed to have regard to admissible and relevant evidence, namely the Burrows statement. His discretionary findings were made in error.

The assessment of the plaintiff's credibility was critical to the determination of the issues at trial. The trial judge's approach was seriously flawed and his findings must be set aside. It is not possible on appeal to determine the issue of credit. Only the trier of fact, hearing all the relevant evidence is in a position to justly determine this issue.

An application to amend the statement of claim was made very late in the trial and followed a late amendment to the defence. The defence of Burrows Engineering was amended to assert that Mr Campbell had fallen from a lower level, rather than from a higher level. Mr Campbell's counsel applied to plead the alternative version of the incident in the Statement of Claim. The trial judge refused that application:

"The plaintiff knew that, of his own information that he gave to doctors, there was a possibility that he didn't fall from 3 m high scaffolding.

I think it's gone too far...it opens up too many matters that should have been dealt with during the course of the last three and a bit weeks. I'm not prepared to allow it."

The amendment should have been allowed. An assertion was made by the defendants that if a fall occurred it did so from a lower level. Mr Campbell was entitled to contend that if the Court were to accept that assertion a breach of duty had nonetheless occurred. The allowance of the amendment would avoid the possible multiplicity of actions. Counsel gave notice that Mr Campbell intended to pursue this alternative allegation before the claim against Complete Scaffold was dismissed. In this circumstance there is no irreparable prejudice to Burrows Engineering and Lucon. The trial judge erred in refusing the application[4]. Any renewed application to amend the statement of claim can be made to the judge hearing the retrial.

The appeal should be allowed. However, as earlier observed, it is not possible to come to any ultimate conclusions with respect to the issue of liability. Without seeing or hearing the witnesses a just determination cannot be made. The issue of credit remains critical and relevant to the case against Burrows Engineering and Lucon. Although separately represented Burrows Engineering and Lucon at trial adopted a common position in attacking Mr Campbell's credit. The appeal should be allowed, the judgment set aside and the matter remitted for rehearing before another District Court judge.

1 [1945] HCA 49; (1945) 70 CLR 100 at 113. See also Starke J 123, Dixon J at 129, McTiernan J at 130 and Williams J at 135.

2 [1960] HCA 39; (1960-61) 104 CLR 476 at 479

4 The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

[1] [1945] HCA 49; (1945) 70 CLR 100 at 113. See also Starke J 123, Dixon J at 129, McTiernan J at 130 and Williams J at 135.

[2] [1960] HCA 39; (1960-61) 104 CLR 476 at 479

[4] The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146