2 GYLES AJA: The appeal and cross-appeal are in short compass. The appeal has been disposed of by consent. The brief basis for that concession on the part of the respondent was that the judge made a finding that the effect of the injuries had ceased by a certain date. In coming to that view there was no explanation as to several heads of injury which were put and pursued at trial with the support of some medical evidence. Without attempting to be exhaustive about those items, there was the injury sustained in the course of physiotherapy which mainly concerns the hip and the groin, there was also some evidence to support exacerbation of a pre-existing back injury in the jump down; and there was also a question of the effect of dystrophy. Therefore the concession was properly made and it is inevitable in those circumstances that there be a new trial as to damages.
3 The cross-appeal raises two issues. The first is the finding of liability. The second is the omission of the learned District Court judge to make any finding at all about contributory negligence. As to liability, the short facts are not in dispute. The appellant was engaged in work in a factory which was manufacturing plastic bottles. His primary occupation was that of a forklift driver but he was also on relief duties dealing with other aspects of the manufacturing process. One job which had to be done was to check pallets for damaged bottles. The normal process by which that was done was that the pallets would be stopped, would be removed by a forklift truck to the ground and then inspected with the use of a step ladder. When forklift trucks were not available or, I think the evidence would show, not readily available, the system was that the workman would stand on top of the conveyor belt with the pallets still on the conveyor belt and inspect from there. The height of the conveyor belt above ground was 550 millimetres.
4 The appellant on the particular evening had commenced work in the late afternoon and had worked all night. A good part of his shift was taken up with inspection of pallets without the use of forklifts to remove them. This was because there was a shortage of forklifts on that evening and, as he explained in his evidence, it was not practical to wait until a forklift was available before carrying out the inspection as the system required that work continue. When he had been working for many hours he jumped from the conveyor belt, having completed an inspection, and came into contact with an angle iron. He twisted his ankle and that led to the injuries and disabilities for which he seeks compensation.
5 The appellant tendered a report of an expert, which was admitted, and that expert pointed out that for a height of more than 300 millimetres Australian Standard 1657 "Fixed platforms, walkways, stairways and ladders - Design, construction and installation", required a step. He criticised the safety of the system generally and summed up his opinion by saying that a system of work should have been implemented to ensure the workers were not permitted or required to gain access to the potentially hazardous location on the conveyor belt and should have, for example, ensured that there were an adequate number of forklifts capable of being operated with the production schedule and number of workers present in the factory. He then dealt with another aspect of the matter which proved to be a furphy and then suggested that a set of steps should have been constructed either permanently or to be deployed as and when necessary to provide a safe and secure means by which the workers could gain access to and from the conveyor belt.
6 The fact that the height was 550 millimetres was exacerbated in a practical sense in this case because the appellant is quite a short person. Whether he was short or not, 550 millimetres is not what could be described as an ordinary step and to negotiate that without the benefit of any step or handrail clearly carries with it risks of falling or otherwise injuring oneself. It is not the case here that the plaintiff overbalanced, which is one of the risks, but in my opinion the risk of injuring oneself whilst jumping down from that height to a factory floor was obvious, it was foreseeable and it was preventable by the measures which the plaintiff suggested. The fact that the particular injury was occasioned by coming into contact with an angle iron was well within the range of possibilities, that being one of a number of possible obstructions on a factory floor. Indeed, in my view there was a considerable risk that, over time, people would simply turn over on their ankles when jumping down and suffer that sort of injury for that reason alone.
7 The attack by the cross-appellant first of all concentrates upon what is said to be the inadequacy of the reasons of the trial judge. Certainly those reasons are economical. Nowhere is the foreseeable risk quite clearly stated in the way that I have endeavoured to state it but it does seem to me that it is implicit in the substantive paragraphs of the judgment. I particularly refer to [15], [23] and [24] of the judgment, which are as follows: