TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Appeal and New Trial - Appeal - General principles - Interference with discretion of court below - Particular cases - Other matters - Apportionment of liability - In general.

McKinlay v Reading [1977] Tas SR 7, applied.

Judgment ID Number: [2001] TASSC 140

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

1 At a trial of the issue of liability the respondent was successful in obtaining a judgment for damages to be assessed, subject to a reduction by 33 per cent for contributory negligence. The appellant has appealed and the respondent has cross-appealed. The facts included the following.

2 The accident was on 19 May 1997. The respondent was aged 29 years and he had worked for the appellant as a tree faller since 1994. He was a very competent and experienced feller. At the time of the accident he was felling trees for the appellant in a coup in the Styx Valley, known as Eagle Spur. He was alone at the time. His "bush boss" was Mr Anthony Young, another employee of the appellant. They were well-known to each other.

3 The accident was a simple one and was found by the learned judge to have occurred in accordance with the respondent's evidence. He had fallen a tree. There was rot and fire damage in the butt of the log. By using his chainsaw he assessed what part of the butt needed to be cut off as waste and prepared to make the cut. Under the right side of that part of the log through which he proposed to cut, there was a hole or dip in the ground, which prevented him from firmly planting his right foot in a stable position on the ground whilst using the chainsaw. A green branch was pinned under the log at that point. The branch protruded roughly at right angles to the log and over the hole or dip in the ground. The branch was about as thick as his forearm. In order to make the cut, he put his right foot on the branch. His left foot was on the ground. He then commenced to cut off the butt. He kept cutting and got down towards the bottom of the log. He was about to pull the chain saw out of the log, when his right foot slipped down the branch and twisted over. The relevant injury thereby resulted.

4 At the time of the accident, the respondent was wearing rubber soled work boots. The rubber soles were moulded into grooves to provide traction. It was his case that his right foot would not have slipped along the branch if he had been wearing spiked boots, which would have had the whole of the under surface of each sole covered with about 21 short metal spikes, similar to those attached to the soles of cricket boots. His case, which was based on negligence and breach of statutory duty, was essentially that the appellant, by its agent Mr Young, knew or ought to have known that he was working in rubber soled boots and, accordingly, Mr Young should have either:

* told him not to work unless he was wearing spiked boots; or

* enquired of him with respect to the efficacy of working with rubber soled boots and had he done so he would have been told by the respondent that he was slipping and, accordingly, his obligation would have been to tell the respondent not to work without spiked boots.

5 In essence, the appellant's case was that the choice of footwear in any given location was a matter for the respondent, as he was an experienced and competent bushman, and there was no obligation on the employer as contended by the respondent.

6 Mr Young gave evidence of noticing, sometime prior to 13 May 1997, that the respondent was wearing a pair of spiked boots that were in very poor condition. There was some difference between the evidence of Mr Young and the respondent as to the exact nature and extent of the deterioration of the boots, but the learned judge regarded the difference as immaterial as it was common ground that the spiked boots were worn out and that by wearing them the respondent was at risk of injuring himself, probably by a stick entering through a hole in one side of a boot and perhaps by tripping up.

7 The respondent's evidence was that spiked boots lasted him 12 months or a bit longer. He had purchased them from a firm called Protector Safety in Derwent Park. He said his wife had mainly done it, rather than him. Because of his long hours of work which required him to leave home at about 6am and arrive home at about 5.30pm, he was prevented from personally contacting Protector Safety. He said that he had ordered a new pair in about March 1997 from Protector Safety because his existing boots were starting to wear out and would soon need replacing. However, Protector Safety had none in stock and the boots had not arrived by the date of the accident on 19 May 1997. His wife had followed it up. He said that he had tried Protector Safety in Launceston and that he did not know at the time of other suppliers in southern Tasmania. The learned judge accepted Mr Young's evidence that he spoke to the respondent about his boots on one or two occasions. Mr Young told him that they should be replaced.

8 Mr Roger Geeves was a senior inspector with the Workplace Standards Authority. He was an experienced bush worker and had been with the Authority since 1986. The learned judged accepted the entirety of his evidence. On 13 May 1997, Mr Geeves visited the Styx Valley to take some photographs of a cable logging operation. While there he spoke with Mr Young who asked him, if he had time, to call in to the ground-based operation at the Eagle Spur coup and have a look at the respondent's footwear. Mr Young expressed concern that he did not think that it was up to an acceptable standard. Mr Geeves did as he was asked. He inspected the respondent's work practices and nothing adverse was noted. With respect to the spiked boots he saw that the upper of the left boot was coming away from the sole and he could see the sock through the hole in the side of the boot.

9 Mr Geeves gave evidence that he did not regard the boots as satisfactory footwear for a person to be wearing in a bush environment such as that in which the respondent was working and he told the respondent so, and instructed him that he would have to leave the work site until he had suitable footwear. The respondent left in accordance with that direction. The respondent agreed that he was so instructed and that he left the bush accordingly. He said that before he left the worksite, he told Mr Geeves that he had a new pair of spiked boots on order and that the only other pair of boots he had available were rubber soled. The respondent said Mr Geeves suggested that he wear the rubber soled boots until he could get a new pair and gave him the card of Lisa Scott, who had started up her own business selling logging equipment including spiked boots, and suggested that she would have a pair available.

10 Mr Geeves confirmed that there was a discussion between him and the respondent on 13 May 1997, generally as described by the respondent in his evidence. With respect to the plaintiff wearing his rubber soled boots to work until he could get hold of a new pair of spiked boots, Mr Geeves said:

"I believe I might have commented that for a short period of time he could wear rubber soled boots and I could comment to that effect because there was no legislative requirement requiring the use of sprigged boots to be worn by the fallers on ground based operations."

11 The respondent said that he went to Protector Safety before he went home. The pair of boots he had ordered had not arrived. A pair of size 7 were on display but his size was 9. He also called on Lisa Scott at Marys Hope Road and asked if she had any boots. She said that she did not, but she could get him a pair within a week and he ordered a pair from her.

12 On the next day, 14 May 1997, the respondent returned to work at Eagle Spur wearing his rubber soled boots. He continued to work in those boots until the accident occurred on 19 May 1997.

13 The respondent's evidence-in-chief was that on the evening of 13 May 1997, he telephoned Mr Young from his home and told him about Mr Geeves' visit, that he had been to Protector Safety, that he had also been to Lisa Scott, and that he would have a pair of spiked boots within a week. His evidence was that Mr Young asked him what boots he had, and he replied that the only pair he had were rubber soled boots. Mr Young told him to go back to work next day wearing them. He did so. Mr Young gave evidence that he had no such telephone conversation with the respondent on 13 May 1997 and the learned judge accepted Mr Young's evidence in that regard for reasons explained by his Honour. They were not attacked on the hearing of the appeal.

14 It was the respondent's evidence that prior to the accident on 19 May, he worked in the rubber soled boots for about five days. He said that he was not walking or working as confidently with them as he would have been in spiked boots. He found himself to be slipping a lot on mud and pieces of wood, which would not usually happen with spiked boots. He felt a bit unsafe and insecure in them in those conditions.

15 The learned judge found that between 13 and 19 May 1997:

* the respondent made the decision to wear rubber soled boots at work;

* in doing so, he knew that the risk of him slipping on green timber and wet undergrowth was thereby increased over that to which he would have been exposed had he been wearing spiked boots; and

* the appellant was unaware that the respondent was wearing rubber soled boots and not spiked boots until after the occurrence of the accident.

16 Associated with that last finding was one made later in his Honour's reasons, that Mr Young was unaware whether or not Mr Geeves had done as he had asked him. Those findings are indirectly attacked by grounds 1(a), 2 and 3 of the appeal. The grounds are in the following terms:

"1 That the Learned Trial Judge erred in law and in fact in finding that the Appellant was in breach of the duty of care owed by it both at common law and by statute to the Respondent by finding that the Appellant was negligent or in breach of statutory duty by:

(a) failing to attend at the accident scene prior to the accident occurring;

(b) failing to ensure that the Respondent ceased work until he was wearing spiked boots.

2 That the Learned Trial Judge erred in fact in finding that Mr Anthony Young (the bush boss of the Appellant) had not visited the Respondent at Eagle Spur after Mr Geeves had spoken to the Respondent on the 13th May 1997 and prior to the Respondent's accident on 19th May 1997.

3 That the Learned Trial Judge erred in fact and in law in finding that the Appellant had not called on the Respondent at Eagle Spur after the 13th May 1997, disregarding the evidence of Mr Young that he had in fact called on the Respondent on the 14th May 1997 and/or without resolving the conflict of evidence between the Appellant and the Respondent as to this issue."

17 Mr Young's evidence was that he saw the respondent at Eagle Spur on the day after Mr Geeves' visit. The relevant passages from the evidence of Mr Young are fully set out in the reasons for judgment of Evans J. Although there was at first some confusion about the day or days Mr Young was referring to, he made the situation clear in the following passage of his evidence:

"You saw him the day following Mr Geeves' visit. Mr Geeves' visit was on the 13th May, we know that? ... That was the first time I seen him with rubber soled boots on.

Right. And then some days after that did you see him again and he told you he had fallen? ... The day after he'd twisted his ankle I seen him again."

Mr Young's evidence was that at Eagle Spur, on the day following Mr Geeves' visit, when he saw that the respondent was wearing his rubber boots, the respondent told him that Mr Geeves had condemned the boots. In cross-examination the respondent denied that he told Mr Young that on that day, and maintained what he had said in his evidence-in-chief, which the learned judge did not accept, concerning the telephone conversation he claimed to have had with Mr Young on the evening of 13 May, following Mr Geeves' visit.

18 I conclude that the learned judge erred when he found that the appellant was unaware that the respondent was wearing rubber soled boots and not spiked boots until after the accident had occurred. It was common to both the appellant's case and the respondent's case that Mr Young, and therefore the appellant, did know that. His Honour rejected the respondent's evidence that the source of that knowledge was a telephone conversation on the evening of 13 May and his Honour omitted making any reference in his reasons to Mr Young's evidence that he gained that knowledge when he visited the respondent at Eagle Spur on 14 May. With respect, it is my opinion that the learned judge erred by failing to advert to Mr Young's evidence about that. I am unable to conclude that he erred by failing to accept Mr Young's evidence in that regard, but if he had considered Mr Young's evidence in conjunction with the respondent's evidence, it ought to have been apparent to his Honour that it was common to the case of both parties that Mr Young knew, by 14 May at the latest, that the respondent would be wearing rubber soled boots at work until he was able to obtain delivery of spiked boots.

19 Much of what I have been considering, and all of what is raised by grounds 2 and 3, has no material consequence however, for the learned judge determined that the appellant was liable because it ought to have known that the respondent was wearing rubber soled boots and if it had, it ought to have prohibited the continuation of work while he was wearing such boots. If his Honour had accepted Mr Young's evidence that he visited the respondent at Eagle Spur and learned that the latter was wearing rubber soled boots, there ultimately remained the same question, whether the appellant, with that knowledge, should have prohibited the continuation of work while wearing the boots. The learned judge determined that the appellant should have done so and ground 1(a) attacks that determination.

20 I referred earlier to the respondent's evidence that he felt a bit unsafe and insecure in the rubber soled boots when compared to spiked boots. Mr Young's evidence, based on a visit to the accident scene on 20 May 1997, was that the floor of the coup at that point was mainly cutting grass and that the ground conditions, in his opinion, suited rubber soled boots. The learned judge found that underfoot was cutting grass and pampas grass and branches and limbs that had broken off, either naturally or as part of the felling operation. That finding was justified on the evidence. It was common ground that a stable balanced stance was necessary for the safe operation of a chainsaw in the bush and that it could be dangerous to put a foot on a green limb whilst using a chainsaw, as the respondent did, because the events that in fact occurred were a well-known and well recognised risk. His Honour's finding that spiked boots substantially reduced the risk was not disputed.

21 The learned judge found to be critical a passage in the cross-examination of Mr Geeves which his Honour cited in full in his reasons for judgment. In that passage Mr Geeves accepted that spiked boots were safer than rubber soled boots if work was being carried out "on slash or bracken, or whatever, that's laying on the ground, because it can be very slippery". Mr Geeves said that the area where the respondent was working when he visited him on 13 May accorded with that description and that the undergrowth had small sticks and small saplings that varied in size from fairly small up to limbs of trees. He would have preferred to have directed the respondent not to come back to work until he was wearing suitable spiked boots, but was constrained from doing so by a lack of legislative power. He explained that there was no regulation specifically requiring spiked boots to be worn by fallers on a ground based operation. If he had considered it to be a life threatening matter, he could have directed the respondent to wear spiked boots under a power given to him by the Workplace Health and Safety Act 1995, s38. However, although he was of the opinion that the wearing of rubber soled boots by the respondent increased the risk of injury, he did not consider the risk to be life threatening.

22 The learned judge accepted the evidence given by Mr Geeves. His Honour concluded that there was no doubt that it was reasonably foreseeable that the wearing of rubber soled boots on the day of the accident exposed the respondent to the risk of suffering an injury of the kind suffered. He then considered whether there was a breach of the duty of care owed by the appellant to the respondent in accordance with the classic passage taken from the judgment of Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48 and referred to statements concerning the duty on a prudent employer in a workplace in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR at 872, Kulczycki v Metalex Pty Ltd [1995] VICSC 22; [1995] 2 VR 377, McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 313 and Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 309. The learned judge held that the magnitude of the risk of injury and the degree of probability of its occurrence were relatively high and, by comparison, the expense, difficulty and inconvenience of taking alleviating action were small in that the provision of a pair of spiked boots or cessation of work until such a pair of boots had been provided, was the only alleviating action required to be taken.

23 The learned judge noted that Mr Young's evidence concerning the suitability of the ground conditions for rubber soled boots was at variance with the evidence of Mr Geeves. His Honour preferred Mr Geeves' evidence and considered that "Mr Geeves was the embodiment of a prudent employer". If the relevant legislation had given him the power, Mr Geeves would have told the respondent on 13 May 1997 that he was not to work in the place he was working unless he was wearing spiked boots. The learned judge concluded that the appellant, if it had been a prudent employer, would have made the respondent stop work until he was wearing spiked boots, and the failure to do so amounted to a breach of the duty of care owed by the appellant to the respondent both at common law and under the Workplace Health and Safety Act 1995, s9(10(a) and (c). In my respectful opinion the learned judge was correct in coming to that conclusion for the reasons he expressed.

24 Ground 4 of the appeal alleges that the learned judge "erred in law in that he failed to determine the essential facts on the issue of causation". Having concluded that there was a breach of the duty of care owed by the appellant to the respondent both at common law and by statute, the learned judge stated that the "breach was, for the reasons given earlier, causative of the loss, injury and damage suffered as a result of the slipping accident on 19 May 1997". The earlier reasons to which his Honour referred are however not easily to be found for, as the respondent's counsel conceded, they are not contained in a discrete passage of the reasons which dealt with the issue of causation. Nevertheless, such reasons can be located. The learned judge accepted the respondent's version of how the accident occurred, which included that when he was about to pull the chainsaw out of the log, his right foot slipped down the branch on which he had placed it and the relevant injury was thereby suffered. The learned judge referred to it as common ground that a stable balanced stance was necessary for the safe operation of a chainsaw in the bush. His Honour found that spiked boots would have substantially reduced the risk inherent in putting a foot on a green limb whilst using a chainsaw, referring to it as not being disputed and an obvious matter of commonsense. I am satisfied that it was that finding which was central to the conclusion of the learned judge that the appellant's breach of duty, by failing to prohibit the respondent from working in rubber soled boots, caused the injury. In my opinion, sufficient facts were found to justify his Honour's conclusion with regard to causation.

25 For the reasons I have given I would therefore dismiss the appeal. I have had the advantage of reading the reasons for judgment of the other members of the Court with regard to the cross-appeal and respectfully agree with them that it should be dismissed also for the reasons they have given.

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

26 The respondent was injured on 19 May 1997 during the course of his employment with the appellant. He claimed that the injury occurred while he was "cutting the butt off a tree trunk, when his right foot slipped off a tree limb on which he was standing".

27 The respondent had been employed as a "tree faller" with the appellant since January 1994, but had been engaged within the timber industry since leaving school. He was required to provide his own equipment. At the time of the accident he was wearing rubber soled work boots instead of those with spikes. The spiked boots which he had previously worn had fallen into disrepair some time previous. The respondent's case was that the employer had failed, through its supervisor (with whom the respondent had previously worked) to:

(1) direct that he was not permitted to work unless he wore spiked boots;

(2) enquire as to the efficacy of using rubber soled boots.

28 The learned trial judge found that the respondent wore the boots, conscious of the risk of slipping without the knowledge of the employer. The accident had occurred while the respondent, working alone, had been "preparing to cut the end off the butt of a tree that he had earlier fallen because it was rotten and fire damaged". The ground and position of a protruding branch "prevented the plaintiff from firmly planting his feet in a stable position" and as he pulled the chainsaw out of the log "his right foot slipped down the branch and twisted over". The evidence of the respondent as to the cause of the injury was accepted by the learned trial judge.

29 On 13 May 1997, an officer with the Workplace Standards Authority, went to the area in which the respondent was working in order to "inspect the safety of the cable logging operation then in progress". He had been made aware, by the appellant's supervisor, that the spiked boots worn by the respondent were in a state of disrepair. He told the respondent that he did not believe the footwear was "up to standard" which "put him at risk of injury" and that the respondent was "to leave the site forthwith and not to return until he had suitable footwear".

30 The respondent complied and attempted, unsuccessfully, to obtain "spiked boots". He claimed at trial that following the direction on 13 May, he rang his supervisor, advised him of the requirement and his inability to immediately replace the footwear and was told "to go back to work the next day with rubber soled boots". The learned trial judge did not accept that the conversation had occurred and found that:

"the (appellant) was unaware that the (respondent) was wearing rubber soled boots and not spiked boots until after the occurrence of the accident."

31 He accepted that the respondent had attended work on 14 May, wearing rubber soled boots, and continued to do so until the date of the accident. He further found that the supervisor did not visit the respondent's work site until 20 May, when he found "that the (respondent) was wearing rubber soled boots" and believed "the ground conditions ... suited the boots".

(1) "it was reasonably foreseeable that the wearing of rubber soled boots ... exposed the (respondent) to the risk of ... injury ...";

(2) the industry in which the respondent was engaged required a high duty of care;

(3) that duty required the "provision of a pair of spiked boots or (a direction of) cessation of work until such a pair of boots had been provided ...".

The respondent's case was that, given the notice which the employer had of the condition of the footwear, its request to the safety officer to raise the issue with the appellant, and his ensuing direction, the failure of the appellant to enquire as to whether there had been compliance with the direction of the safety officer and personally check with the respondent as to whether the footwear problem had been addressed constituted breach of duty. The learned primary judge accepted that contention in the following terms:

"The only step taken by Mr Young to discharge this obligation was to ask Mr Geeves to call upon the plaintiff. Mr Young was unaware whether or not Mr Geeves had done as he had asked him and between 13 and 20 May was unaware of what the plaintiff was wearing on his feet. A prudent employer would have called on the plaintiff as he was working at Eagle Spur within a day or two of Mr Geeves' visit to ensure that the plaintiff was wearing boots that did not expose him to risk of harm. This the defendant did not do, but this failure will not visit it with liability unless a prudent employer would have not only visited the plaintiff, but also told him not to work in anything other than spiked boots, or alternatively, enquired about the traction given by the rubber soled boots and if told that they were slipping, then prohibited the continuation of work while wearing such boots.

Accordingly, the failure of the defendant to visit Eagle Spur until after the accident, a step that would have been taken by a prudent employer, and the consequential failure to make the plaintiff stop work until he was wearing spiked boots, another step that would have been taken by a prudent employer, was a breach of the duty of care owed by the defendant to the plaintiff both at common law and by statute, which breach was, for the reasons given earlier, causative of the loss, injury and damage suffered as a result of the slipping accident on 19 May 1997."

The conclusion reached was that the appellant was liable, but that the respondent "was guilty of ... contributory negligence at 33 per cent."

The appellant claims, by its notice of appeal, an error in relation to the issues of causation and failure to attend at the work site before the accident. The appeal claims error based on errors "in fact and in law". I have difficulty in accepting that the grounds do other than seek a general review of the accident. The principle stated by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 493 - 494:

"A finding on a question of apportionment is a finding upon a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds'. Such a finding, if made by a judge, is not lightly reviewed. The task of an appellant is even more difficult when the apportionment has been made by a jury."

(per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ)

suggests that this appeal is one of complaint about outcome rather than that of error in law.

33 Ground 4 of the amended notice of appeal claims:

"4 That the Learned Trial Judge erred in law in that he failed to determine the essential facts on the issue of causation."

The contention of the appellant was that given the knowledge of, and information possessed by, the respondent, his decision to attend work wearing replacement boots was the primary cause of the injury. The physical cause of injury was the act of slipping which might have been caused by the nature of the footwear. The appellant had not forbidden the wearing of "rubber soled" footwear and given its knowledge of the inadequacy or deterioration of the footwear, it could be said that its non-intervention "caused" the injury in that the unsupervised return to work between 14 and 19 May, permitted the worker to continue working with "unsafe equipment". The learned primary judge, in accordance with the test of causation stated by the High Court in March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, was entitled to find, on the evidence before him, that there was a nexus between the knowledge of, and inaction on, the part of the employer, and the event of 19 May. The learned primary judge was entitled to determine the issue of causation in favour of the respondent. The ground is not made out.

34 Grounds 1, 2 and 3 of the amended notice of appeal claim error on the grounds that:

"1 That the Learned Trial Judge erred in law and in fact in finding that the Appellant was in breach of the duty of care owed by it both at common law and by statute to the Respondent by finding that the Appellant was negligent or in breach of statutory duty by:

(a) failing to attend at the accident scene prior to the accident occurring;

(b) failing to ensure that the respondent ceased work until he was wearing spiked boots.

2 That the Learned Trial Judge erred in fact in finding that Mr Anthony Young (the bush boss of the Appellant) had not visited the Respondent at Eagle Spur after Mr Geeves had spoken to the Respondent on the 13th May 1997 and prior to the Appellant's accident on 19th May 1997.

3 That the learned Trial Judge erred in fact and in law in finding that the Appellant had not called on the Respondent at Eagle Spur after the 13th May 1997, disregarding the evidence of Mr Young that he had in fact called on the Respondent on the 14th May 1997 and/or without resolving the conflict of evidence between the Appellant and the Respondent as to this issue."

The issues discerned are whether the appellant, aware of the state of the respondent's footwear, and having indirectly forewarned him of its concern was entitled to assume that intervention by a safety officer would ensure compliance with its concern.

35 The learned primary judge was entitled to conclude as he did. He might have concluded to the contrary. The question raised by the appellant is whether he applied the requisite standard of care. The challenge by the appellant is to the "standard of care" required by law. The learned trial judge was required to make a judgment about, whether on the facts before him, that standard was transgressed (State of Tasmania v Clark [2000] TASSC 126).

This court ought not accept a challenge, based on a careful and diligent examination of the material placed before the original Tribunal simply on the basis that the critique is persuasive of a different outcome. The obligation of an appellate court to review the factual material on an appeal required by the High Court in Morris v R [1987] HCA 50; (1987) 163 CLR 454, does not amount to a requirement of rehearing on the papers in each case.

36 Whilst at one level of analysis (March v E & M H Stramare Pty Limited (supra)), the failure by the appellant to attend the work site should not be held to be negligent, the standard required of the appellant was to be determined by a fact finder, in accordance with a test based on responsibility, in accordance with the evidence relevant to the particular case The factual determination made by the learned primary judge was in accordance with the test stated in Podrebersek v Australian Iron and Steel Pty Ltd (supra), and was within the acceptable parameters.

38 The same reasoning ought be applied to the cross-appeal, which claims:

"A The learned Trial Judge was wrong in law in failing to consider whether the conduct involved the taking of some risk, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man. Had the learned Trial Judge considered that question there would have been no room for a finding of contributory negligence.

B The learned Trial Judge was wrong in law in finding that having regard to the Plaintiff's share and responsibility it was just and equitable to reduce the Plaintiff's damages by 33%, in that he failed to give reasons why it was just and equitable to make such a reduction."

Any assessment of percentage of contributory negligence resists precise reasoning. It is an evaluation based on competing duties, and an appreciation of the totality of the case. It is an exercise of judgment (Liftronic Pty Limited v Unver (2001) 75 ALJR 867 and McKinlay v Reading [1977] Tas SR 7). The respondent was an experienced timber worker. He had failed to maintain his "spiked boots" to an appropriate standard and failed to take steps to order their replacement in sufficient time. He had been told by a work safety officer to stop work until he had obtained a replacement. He returned to work conscious of risk. The finding of the learned trial judge as to the claimed telephone conversation of 13 May precluded a finding that he had been directed to return to work wearing rubber soled boots. He chose to adopt the stance he did in felling the tree and was aware of the nature of the terrain and the position of a protruding branch.

39 In my opinion the appeal and cross-appeal ought be dismissed.

LES WALKDEN ENTERPRISES PTY LTD ACN 076 400 493 T/A LES WALKDEN TIMBER HARVESTING v MARK JAMES MENZIE

40 I agree with Slicer J that the appeal and cross-appeal should be dismissed.

41 Central to the submissions advanced on behalf of the appellant/defendant in support of grounds 1, 2 and 3 of the appeal, is the contention that the learned trial judge erred in finding that Mr Young had not called on the respondent/plaintiff, Mr Menzie, at Eagle Spur, after Mr Geeves had spoken to Mr Menzie on 13 May 1997, and prior to Mr Menzie's accident on 19 May 1997. As is apparent from the following passage from the reasons for judgment, his Honour concluded that Mr Young did not call on Mr Menzie between these dates and that the failure to check on the boots Mr Menzie was wearing during this period was a failure on the part of the appellant to act as a prudent employer should. His Honour at par52 said:

"The defendant, by its agent, Mr Young, knew that the plaintiff was a worker who was prepared to work in the bush wearing worn out footwear that, to the plaintiff's knowledge, exposed him to the risk of injury. The fact that Mr Young asked Mr Geeves to check on the plaintiff's footwear leads me to conclude that on 13 May 1997, Mr Young was far from satisfied that the plaintiff had heeded his earlier admonition to replace his boots as they were dangerous. In the light of this knowledge, the defendant clearly had an obligation to ensure that the plaintiff was wearing appropriate footwear on and before the day he was injured. The only step taken by Mr Young to discharge this obligation was to ask Mr Geeves to call upon the plaintiff. Mr Young was unaware whether or not Mr Geeves had done as he had asked him and between 13 and 20 May was unaware of what the plaintiff was wearing on his feet. A prudent employer would have called on the plaintiff as he was working at Eagle Spur within a day or two of Mr Geeves' visit to ensure that the plaintiff was wearing boots that did not expose him to risk of harm. This the defendant did not do, ..."

42 In the course of his reasons for judgment, his Honour did not advert to evidence led from Mr Young in which he said he had visited Mr Menzie at Eagle Spur on the day after Mr Geeves' visit. If that evidence is accepted then Mr Young visited Mr Menzie on 14 May and the learned trial judge was in error in relation to a matter which counsel for the appellant submits was central to the decision. The relevant portions of the transcript of Mr Young's evidence follow:

"... Did you, the day after the visit by Mr Geeves to the Styx River Valley, see Mr Menzie at Eagle Spur? ... The next day?

And did you notice something about his footwear then? ... Yeah. He had rubber soled boots on.

Did he tell you anything about a conversation he'd had with Mr Geeves, the following - earlier - the previous day? ... Yeah. He did so.

What did he tell you? ... He told me that Roger Geeves had condemned his boots.

... Now on the 20th May 1997 did you have a conversation with Mark Menzie when he told you that he had injured his leg at work, or his ankle at work, the previous day? ... That was the day after?

HIS HONOUR: I'm not quite clear about this. Mr Young said 'I saw the plaintiff at Eagle Spur the day after he'd spoken to Geeves and he was wearing the rubber soled boots' and then 'on the day after what'?

MR GUNSON: I'm sorry, I will rephrase it. (Resuming): You became aware that Mark Menzie had had an accident, is that correct? ... Yeah, that's right.

And how did you become aware that he'd suffered - been involved in an accident? ... Mark told me himself.

Right. And where did he tell you that? ... That was when I turned up the next day on the landing. He was tree falling when I turned up, he came out of the bush, and that's when we had the conversation about boots.

... And on that day when you saw him was he wearing the rubber soled boots? ... He was so.

HIS HONOUR: I'm still not quite clear though when - which day this was.

MR GUNSON: I appreciate that. (Resuming) You saw him the day following Mr Geeves' visit. Mr Geeves' visit was on the 13th May, we know that? .... That was the first time I seen him with rubber soled boots on.

Right. And then some days after that did you see him again and he told you he had fallen? ... The day after he'd twisted his ankle I seen him again.

So whatever date it was he twisted his ankle - ... It was the day after that I seen him.

Right. Because he told you he'd fallen the day before? ... That's right."

43 This evidence is somewhat confused and contradictory. Mr Young in substance says that the first occasion on which he saw Mr Menzie wearing rubber soled boots was the day following the visit by Mr Geeves, at which time Mr Menzie told Mr Young that Mr Geeves had condemned his boots, that is, the spiked boots he had been wearing the previous day. Mr Young at another point said that the conversations he had with Mr Menzie about Mr Menzie's boots took place on the day after the accident. This suggests that Mr Young was confused as to when the conversation about Mr Menzie's boots took place or possibly that he was uncertain about whether there had been two separate conversations with Mr Menzie referable to the boots. On reading the evidence, I am left with the impression that Mr Young had a recall of having a conversation with Mr Menzie in relation to his rubber soled boots, but could not be sure whether it occurred on the day after Mr Geeves' visit or the day after the accident, or on both of these occasions. Mr Young was not cross-examined on this aspect of his evidence. In the absence of any contrary evidence, I would conclude that Mr Young spoke to Mr Menzie at Eagle Spur on both 14 May and again on 20 May 1997. There was, however, evidence to the contrary. Mr Menzie denied having a conversation with Mr Young on 14 May, in which Mr Menzie told Mr Young that Mr Geeves had condemned Mr Menzie's boots the previous day. There was no suggestion in Mr Menzie's evidence that he had any conversation with Mr Young at Eagle Spur on 14 May. Some support for Mr Menzie's denial of the occurrence of the conversation can be derived from the manner in which Mr Menzie completed a workers compensation claim form following the accident. Mr Menzie made no reference in the claim form to the fact that he had been wearing rubber soled boots. His explanation for not doing so, was that he believed he should not have been wearing rubber soled boots and thought that if he mentioned he was doing so in the claim form he would get himself and the appellant in trouble with the appellant's insurer. Had Mr Menzie in fact had a conversation with Mr Young on 14 May in the course of which Mr Young had approved Mr Menzie wearing rubber soled boots, it is difficult to understand why Mr Menzie would have been concerned about not mentioning the boots in the claim form. Whilst it might have caused the appellant some trouble, it should not have caused Mr Menzie any trouble. In the circumstances, I reach the same conclusion about this matter as was reached by the learned trial judge, that is, that Mr Young did not call on Mr Menzie between 13 and 20 May. In any event, it would not be appropriate for this Court to reach a contrary conclusion to that of the learned trial judge unless satisfied that any advantage enjoyed by him arising from his observance of the witnesses is not sufficient to have explained his finding: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, McHugh J at 178 and Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as "Uncle Bens of Australia" (1992) 27 NSWLR 326 (CA), Samuels JA at 349.

44 As I am unpersuaded as to the factual error relied upon by the appellant in support of grounds 1, 2 and 3, I reject those grounds. For the reasons enunciated by Slicer J I also reject ground 4.

45 I turn to the cross-appeal against the learned trial judge's assessment of the respondent's contributory negligence at 33 per cent. The reduction of the respondent's damages by a proportion under the Tortfeasors and Contributory Negligence Act 1954, s4(1), is for the purposes of the Supreme Court Civil Procedure Act 1932, s45(1) an "adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise", and so the trial judge's determination as to the appropriate reduction should not be varied unless any of the matters detailed in that provision have been made out; McKinlay v Reading [1977] Tas SR 7. They have not. His Honour's assessment of the respondent's contributory negligence is a proper reflection of the respondent's wilful and prolonged disregard for his own safety, balanced against the appellant's breach of duty. His Honour did not proceed on a wrong principle or otherwise contrary to the law, or on irrelevant or insufficient materials, and has not misapprehended the facts or failed to consider any material fact. The assessment is not so unreasonable or plainly inequitable as to warrant the inference that in some way there has been a failure to properly exercise the discretion reposed in the learned trial judge.

46 I would dismiss the appeal and the cross-appeal.