Electric Power Transmission Pty Ltd v Cuiuli

Electric Power Transmission Pty Ltd v Cuiuli - [1961] HCA 3 - HCA 1961 case summary — Zoe

[12]

This is an appeal from an order of the Supreme Court of New South Wales by which a motion to that Court to set aside the verdict of a jury was dismissed. The verdict was given in an action in which the respondent had sought, successfully, to recover damages for personal injury which, it was claimed, resulted from the negligence of the appellant who at the material time was his employer. The respondent's injury was caused whilst he was chopping a length of bush timber, about one to one and a half inches in diameter, into a series of shorter lengths for use in a camp stove. This was but one of many pieces of such timber which his duty required him to prepare for use as firewood and the implement which he was using at the time was variously described as a short axe, a side axe and a tomahawk. It had a handle about a foot or fifteen inches long and, as a matter of common knowledge, it was of a type frequently to be found in use as a domestic implement. What happened was that whilst the respondent was chopping the piece of timber in question one small part of it, after having been severed, flew up and serious damage to his right eye was caused. In these circumstances he complained that his injury was caused by the appellant's negligence, the more or less general allegations being that for the task on which he was employed a tomahawk was an unsuitable implement, that its use unreasonably exposed the respondent to risk of injury and, further, that he should have been given some instruction in the use of the implement and warned of the dangers which, in the circumstances, the use of a tomahawk involved. A finding favourable to the respondent on the first of these issues was, the Full Court thought, open on evidence which, they considered, went to show that the use of a tomahawk was not only less suitable for the task in hand than a long-handled axe but also more dangerous from the point of view of injury to the user. Their Honours also took the view, though they entertained "not a little doubt," that "there was evidence of circumstances in which instruction might reasonably be thought to be required".

[13]

Before proceeding to express the view which I have formed concerning these propositions it is desirable to make some further reference to the facts of the case. The respondent was a native of Italy and he came to this country in 1954 at the age of 15 years. Shortly afterwards he commenced to work and worked for a short period on the cane fields in Queensland. Thereafter he entered the employment of the appellant in its camp at Maryong as a kitchen hand. It was from there that he went some time later to Morven where the appellant had established a camp for the use of its employees who were engaged in the erection of transmission lines in more or less unsettled country. He was told by the foreman of the camp at Maryong of his projected move to Morven and informed that for some time he would be the only employee there. Apparently his main occupation was to be that of a caretaker in relation to the camp and equipment at Morven. Upon his arrival at the latter place he saw one Ambrosia who, in fact, was his predecessor at Morven and was then waiting to be relieved. Ambrosia indicated with, perhaps, a little more particularity than had been done by the foreman at Maryong, that his duties would include keeping the camp clean, he was to open the caravans and give them fresh air, he was to look after the material and equipment and he was "to chop the wood to prepare for when the cook comes to find it". He says that Ambrosia did not indicate anything as to what implement he was to use for this lastmentioned task but there was "a small axe lying down near the wood". There was a store at the establishment which contained a number of tools, but there was no evidence whether it contained any axe or axes. It is true that the respondent said in cross-examination that he did not see one but it is clear from his evidence that he did not look for one. The tomahawk was ready to hand and, apparently he saw no reason to look for any other implement. The bush timber which he was required to prepare was lying on the ground and it covered an area said to be about six yards square and the pile was about three or four feet high. Ambrosia left the camp on the day after the respondent's arrival and the latter stayed on alone to look after the camp and to await the return, or arrival, some considerable time later of a number of the appellant's employees. He was still alone some six weeks later when he sustained his injury in the manner briefly described above. By that time he had prepared about three quarters of the pile of timber as fuel for the stove.

[14]

In these circumstances the first question is whether the evidence can justify a finding that, in the language of the Full Court, the appellant "supplied" the respondent "with a small axe or tomahawk instead of a full sized axe". In my view it cannot. As already appears there was at the camp a store which according to the evidence contained a number of tools. For all we know it may well have contained an axe or axes; at all events there is no evidence to show that it did not. As already appears the selection of the tomahawk was made by the respondent and he did not seek any other implement. Naturally enough, because it was lying near the wood-pile, he may well have assumed that his predecessor had used the tomahawk for chopping the wood into shorter lengths but this, by no means, justifies the unequivocal assertion that the appellant at this remote camp provided him with a tomahawk and failed in its duty, if it had any such duty, to provide him with a long-handled axe. At the most the complaint must be that if there was any real element of risk in using a tomahawk for the purpose in question, the appellant failed to give him adequate instruction to enable him to select the right implement for the task. No doubt on any view there were many uses to which a tomahawk might appropriately have been put in and about a camp of this character and, no doubt, other simple tools were required, selected and used by the respondent in the performance of his duties. But to say that in the discharge of its obligation of care towards the respondent the appellant was in the circumstances of the case bound to specify that a long-handled axe and not a tomahawk should be used in chopping the timber in question or to instruct the respondent in the use of such a simple instrument as the latter is in my view to carry the matter beyond reason. If one seeks far enough it is possible to perceive an element of risk in the performance of any task however simple but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful; it is a duty of reasonableness and that standard cannot be said to have required the appellant so to specify or instruct.

[15]

But even if it is possible upon the evidence to say that the appellant did in fact provide the respondent with a tomahawk for the purpose of chopping the wood in question and that, unequivocally, it failed to provide him with a long-handled axe the respondent would in my opinion be in no better case. It is contended, however, that the contrary view is justified by evidence which, at first sight, may be thought to provide grounds for thinking that the use of a tomahawk for chopping small pieces of bush timber involves some real element of risk and that a long-handled axe is a more suitable and safer implement for such a task. But when the evidence is examined it is seen that it goes no further than to suggest that a person using a tomahawk for such a task is more likely to be struck in the face by small pieces than would be the case if he were using a long-handled axe. The reason given for this is, of course, that a person using a tomahawk would be closer to the point of impact between the implement and the timber being chopped. To my mind this is the substance of the evidence and it does not establish that the use of a tomahawk for the task upon which the respondent was employed unreasonably exposed him to any real risk of injury. No doubt, if he had been provided with a long-handled axe and he had injured his foot with it the complaint might have been made that if he had been provided with a saw the risk of injury to his foot would have been eliminated or diminished. On the other hand if, having been provided with a saw, he had managed to injure his fingers the complaint might have been that if he had been provided with a tomahawk that risk of injury would have been avoided. But in none of these cases would the suggested proposition suffice to establish that the employee had been unreasonably exposed to risk of injury. In my view it is clear that the evidence is incapable of supporting the conclusion that the use of a tomahawk for the purpose in question exposed the respondent generally to any greater danger than the use of any other implement. That being so it is impossible to say, even if it be assumed that the appellant provided him with a tomahawk and failed to provide him with a long-handled axe, that it failed in any duty of care towards the respondent.

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Before

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Judgment (16 paragraphs)

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