McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2000] QSC 54

Supreme Court of Queensland|2000-03-17|Before: Chesterman, J

Hede Byrne & Hall for the first and second defendants

[1] CHESTERMAN J: The first plaintiff was a timber cutter by occupation. His wife is the second plaintiff. On 11 May 1992 the first plaintiff ("the plaintiff") was struck in the back by a falling tree. He is now a paraplegic. He has sued to recover damages for his injury from the first and second defendants, also husband and wife, who at all relevant times carried on business in partnership as timber carters, and the third and fourth defendants which respectively operated and owned a sawmill.

The second plaintiff claims damages for loss of consortium.

[2] At an early stage in the trial all parties agreed upon the amount of damages which should be awarded to the plaintiffs if they succeeded in proving negligence against any of the defendants. Mr McDonnell's damages are agreed in the sum of $1,200,000.00 and his wife's in the sum of $25,000.00.

[3] The plaintiff's case is that he was employed by Mr and Mrs Hoffman, the first and second defendants ("the defendant") who owed him a duty to ensure that care was taken for his safety in the course of his employment. He alleges that the third and fourth defendants ("Sugarloaf") owed him a duty to take reasonable care to prevent injury by implementing, or having the defendant implement, a safe system of work. The plaintiff further alleges that both the defendant and Sugarloaf failed to discharge their respective duties.

[4] Sugarloaf denies the existence of the alleged duty. It contends that, whether or not it was instituted by the defendant, there was in existence a safe system of work. The defendant denies that the plaintiff was an employee. His position is that he and the plaintiff were independent contractors to Sugarloaf. He also asserts that a safe system of work had been implemented but on the occasion in question the plaintiff failed to adhere to it.

[5] Sugarloaf had contractual rights to cut and remove timber from a plantation of radiata pine near Mount Sugarloaf which lies in the ranges east of Stanthorpe. The plantation was privately owned. The trees had been planted about 20 years earlier and were coming to maturity. The operation to cut and remove them would take several years. Surgarloaf began the task utilising its employed labour but the attempt was unsuccessful. The work was done too slowly and the mill was not fully utilised. It decided instead to engage a contractor to deliver logs to the sawmill. It made enquiries of the operator of another sawmill in the area who recommended the defendant.

[6] A director of Sugarloaf, Mr Aschman, contacted the defendant to ask whether he would be interested in supplying his company with timber cut from the plantation. The defendant knew that he was being asked whether he was interested in performing a "cut, snig and haul" contract. That is one to fell the trees, cut them into logs and deliver the logs to the sawmill. The defendant owned equipment to load and carry logs, but not to snig them, that is to haul the logs from where they had been felled to where they could be loaded onto a jinker. To perform the offered contract the defendant needed a snigger and a feller. He contacted the plaintiff and Mr Affleck.

[7] The plaintiff began business on his own account in about 1989 when he was 26. He cut timber, sawed logs, made fence posts and built cattle yards from the timber he cut. He was proficient in the use of chainsaws and in felling and cutting up trees. He owned a truck, three chainsaws and a tractor which he used in his business. He engaged an accountant to prepare his tax returns in which he was described as self employed. A very small part of his time was spent working, as an employee, for his father-in-law in a workshop. Predominantly he was a self employed timber cutter and fencing contractor. In that capacity he performed some work for the first defendant and became known to him. He had earned a reputation for proficiency and industry. Prior to working at Mount Sugarloaf he had limited experience in working with pine trees. The defendant asked him to be the feller.

[8] Mr Affleck was an older man. He had had many years of experience in all aspects of forestry work. He had logged pine plantations. He owned a machine called a skidder which was particularly designed for snigging. It was articulated at about its centre point for ease of manoeuvring around trees. The operator was protected from falling trees or branches by a sturdy steel canopy. There was a blade at the front and a fixed derrick and winch at the back. It had four large wheels all of which were powered. The machine had many functions. It dragged logs from where they had been felled to a stockpile where they were loaded onto a truck. It could move fallen trees by use of the blade. Sometimes a tree when cut did not fall because its branches would become entangled with those of adjacent trees. This phenomenon was commonly encountered. Trees which did not fall when cut were known as "hang ups". The skidder could be used to push over a hang up using the front blade or to pull it down by using a cable and the winch.

The defendant approached Mr Affleck to be the snigger.

[9] On 10 March 1992 the defendant, the plaintiff, and Mr. Affleck assembled at the defendant's house in Warwick. They were joined by Mr Aschman and Mr. Ossedryver, Sugarloaf's sales manager. They all drove to Mount Sugarloaf where they were joined by Mr. Kaiser, the sawmill foreman. The six men inspected the plantation to ascertain the details of what the contract would entail. They returned to the sawmill where price was discussed. Both Mr Affleck and the defendant were considerably older than the plaintiff. Mr Affleck had a great store of knowledge concerning logging. The defendant had been in business for many more years than the plaintiff and was, in my assessment, a shrewd and a tough business man. A figure of $25 per cubic metre of timber delivered to the mill was arrived at by the defendant and Mr Affleck. I accept the plaintiff's evidence that he took no active part in the negotiations as to price but acquiesced in what was proposed by the defendant and Mr Affleck. It was put to Messrs Aschman and Ossedryver who accepted.

The price was to be divided so that the plaintiff would receive $6.00 per cubic metre and Affleck and the first defendant $9.50 each. The distinction was explained to the plaintiff on the basis that his overheads were substantially less than the others'. He provided only chainsaws, fuel and lubricants, an axe and wedges. Mr Affleck had to operate and maintain his skidder while the defendant had similar financial responsibilities with relation to the prime mover, jinker and loader.

[10] Sugarloaf insisted that each of the defendant, Mr Affleck and the plaintiff take out his own policy of accident insurance for the duration of the contract. The plaintiff effected such a policy.

[11] A few days before work commended on 6 April 1992 the defendant transported to the site a caravan for the three men to live in, Mr Affleck's skidder, his own loader and the jinker. The plaintiff took his own equipment to the site in his truck. At the end of each week after work started each man prepared his own invoice which were delivered to Sugarloaf by the defendant. Each was paid separately by cheque given to the defendant or sent by post. The first loads of logs were measured exactly to determine the amount due but after about two weeks agreement was reached that a jinker load of logs would be taken to be 20 cubic metres. At about the same time the plaintiff's rate of payment was reduced from $6 per metre to $5.50. The change occurred at the insistence of the defendant who was not fully occupied in loading and carrying the logs and spent some time in assisting the plaintiff to trim the side branches off the trees. For this he received the extra remuneration.

[12] In 1992 Good Friday fell on 17 April. The plaintiff took holidays over Easter. He was away from the job for almost two weeks during which the defendant and Mr Affleck performed his part of the work. For that period the payment made for logs delivered was divided between the defendant and Mr Affleck. The plaintiff did not seek permission to go on holidays. He told the defendant he was going.

[13] To complete the account of circumstances relevant to the contractual relationships between the parties I will bypass for a moment the tragedy which befell the plaintiff. After he was injured the services of another tree feller had to be obtained if the contract with Sugarloaf were to continue. In fact the defendant did engage replacement fellers, and when they left, engaged others. These had a falling out with Mr Affleck and desired his retirement from the team. The defendant obliged them, though he did so obliquely, without paying Mr Affleck the courtesy of telling him personally that he was unwanted.

Some other matters should be mentioned. Before his injury the plaintiff asked the defendant if he could bring his own tractor onto the site so that he could use it to assist in the snigging. The defendant refused, giving as the reason that snigging was Mr Affleck's part of the contract and the plaintiff's proposal would diminish Mr Affleck's remuneration. The plaintiff accepted the defendant's decision. This point is given another significance in the plaintiff's case and will be noticed later.

[14] Mr Ossedryver worked in Brisbane but made weekly trips to Mount Sugarloaf to check on operations. He made a point on these occasions of driving to the forest to speak to the plaintiff, the defendant and Mr Affleck. On at least some of these occasions he received complaints about miscellaneous matters from the plaintiff and Mr Affleck. Partly for this reason and partly because the visits occasioned some inconvenience Mr Ossedryver stopped them. Thereafter all communications were made through the defendant. This was merely an extension of what had happened earlier. It was the defendant, for example, who kept the tally of logs delivered and who agreed on measurements with Mr Kaiser. It was the defendant who was told where in the plantation, and when, to start logging. It had been the defendant who negotiated the price with Messrs Aschman and Ossedryver.

[15] From these circumstances the plaintiff submits that he was an employee of the defendant's. In their desire to avoid legal responsibility for the plaintiff's injury the defendant submits that he, Affleck and the plaintiff, had all made independent contracts with Sugarloaf, while for its part that company submits that it made one contract with the defendant who subcontracted part of the work to the plaintiff and Mr Affleck.

[16] The opinion to which the evidence has led me makes the precise nature of the relationship between the plaintiff and the defendant, and Sugarloaf and the defendant, irrelevant. Indeed I think the question whether the plaintiff was employed by the defendant does not affect the outcome of the trial, but as all these matters were argued I will address them.

[17] I was referred to the discussion of the appropriate tests to determine whether a contract of employment has been formed in Stevens v Brodribb Sawmilling Co Pty Ltd (1985 -1986) [1986] HCA 1; 160 CLR 16. Mason J said at 24:

"A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it ... but the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as one of a number of indicia which must be considered ... other relevant matters included, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee."

"The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he should do it ... the modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. ... in many, if not most, cases it is still appropriate to apply the control test ... because it remains the surest guide ... it is the right to control rather than its actual exercise which is the important thing ... the other indicia ... have been variously stated ... those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss ... the right to exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a ... trade or distinct calling on the part of the person engaged, the provision by him ... of his own equipment, the creation by him of good will or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax ..."

[18] The plaintiff's submission focuses on the predominant role played by the defendant in the formation of the contract with Sugarloaf and in its performance by himself, Affleck and the plaintiff. The fact that the defendant engaged both the plaintiff and Mr Affleck, and later replaced them, is emphasised, as is the fact that the first defendant, essentially unilaterally, reduced the plaintiff's share of the contract price. It is pointed out that it was to the defendant that the plaintiff looked for a decision about whether he could bring his tractor into the forest. It is also noticed that the defendant provided a caravan for the accommodation of the three men. Reliance is placed upon the role that the defendant assumed, or had thrust upon him, of being the means by which instructions from Sugarloaf were relayed to the plaintiff and Mr Affleck. The plaintiff argues that the defendant was "in charge" or "in control" of the logging operation.

In a general sense this is true but not, I think, in the sense which is described in the authorities. The defendant's actions can be as easily categorised as being those of a head contractor as of an employer. Most of the facts relied upon are equivocal.

[19] There were three separate components to the contract with Sugarloaf which was to "cut, snig and haul". The plaintiff was engaged to perform the first activity. At a pinch, as they demonstrated over Easter, the defendant and Mr Affleck could perform the plaintiff's task but he was taken on as the "specialist" feller. That was his line of work. There is no evidence that the defendant gave the plaintiff any directions as to how to go about the actual work of felling trees or that either of them contemplated that the defendant could or would give such directions. It is true he directed the plaintiff where the mill required logging to commence and what its specifications were for the preparation of logs but that is not the same thing as the right to control the manner in which the felling work was done. Each of the plaintiff, the defendant and Mr Affleck was involved in his own activity. None controlled the manner in which the others worked.

[20] There are significant factors indicating the plaintiff was not an employee. He rendered weekly invoices to Sugarloaf. He was paid on the invoices by that company, not by the defendant. No taxation instalments were withheld from the payments. Equally important is the insistence that the plaintiff effect a policy of sickness and accident insurance for his own benefit. An employee would have been covered by the statutory workers' compensation scheme. The mode of requesting payment and its receipt make it clear that the plaintiff was performing a contract for services. The fact that he took holidays when it pleased him, not by arrangement with the first defendant, also has some importance.

The factors relied upon by the plaintiff as showing that the defendant was "in control" are, I think, explained by Mr Hoffman's assertive personality and the difference shown him by the plaintiff because of his more mature age and experience.

[21] I find, therefore, that the plaintiff was a self employed contractor. There is a question whether he contracted with the defendant or with Sugarloaf. The question was not addressed by the parties when they negotiated and nothing was expressly said or written which would reveal their intentions on the point which only appeared to be important when the plaintiff commenced his action for damages. The evidence favours the conclusion that Sugarloaf made one contract with the defendant for the delivery of logs to the mill. To perform his contract the defendant subcontracted the cutting and snigging activities to the plaintiff and Mr Affleck respectively. The relevant factors are:

(a) Mr Aschman on behalf of Sugarloaf contacted the defendant to offer him the "cut, snig and haul" contract;

(b) The contract price was negotiated between Sugarloaf and the defendant and was an all up price for delivered logs;

(d) The defendant, not Sugarloaf, chose to engage the plaintiff and Mr Affleck;

(e) The defendant collated the three sets of invoices to ensure that their totals corresponded with the one price agreed with the mill and delivered the invoices to Sugarloaf;

(f) The contract continued for many years during which the defendant changed cutters and sniggers without reference to Sugarloaf.

[22] Accepting the possibility that the plaintiff would not be found to have been employed by the defendant his counsel submits that, nevertheless, the defendant is liable on the same basis as Sugarloaf. The basis for that liability is found in some remarks made in Stevens from which it is said that they both owed the plaintiff a duty to take reasonable care to devise a safe system of work. The argument proceeds that both failed to do so and that the plaintiff was injured as a consequence.

[23] As well as containing expressions of principle, Stevens is a case with some factual similarities to the present. The plaintiff was a log carrier who was injured because of the negligence of a snigger who was attempting to load a log onto the plaintiff's truck. Both the plaintiff and the snigger were independent contractors, not employees of the sawmilling company which exercised general supervision over logging operations but did not control the manner in which the sniggers and carriers performed their work. Brennan J said (at 47):

"Brodribb organised the felling, snigging, loading and trucking operations which brought forest logs to the mill. All of those operations involve some risk of injury ... an entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk ... and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks or injury. It does not import a duty to retain and control working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur ... once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own system of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt to follow a safe system of work. ..."

In their joint judgement Wilson and Dawson JJ said (at 45):

" ... we are prepared to assume that (Brodribb) was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstance which differentiates the contractors from employees. ... any such duty was, in effect, a duty to exercise care in the coordination of the activities of the various contractors."

[24] The judgment of Mason J at 31 appears to go further and might be understood as suggesting that one who engages the services of an independent contractor is obliged to provide a safe system of work for the contractor as he would if he employed someone to perform the contracted task. Such a view is contrary to the opinions expressed by the majority of judges in Stevens and does not, I think, reflect the law. The Court of Appeal in CSR Limited v Wren [1997] 44 NSWLR 463 at 484 appears to be of the same understanding.

[25] Apart from CSR, which was not a case involving contractors, I have not found nor been referred to any authority in which this aspect of Stevens has been considered. The most comprehensive discussion of the principle underlying the imposition of duty on one who engages a contractor is found in the judgment of Brennan J. The essence of it seems to lie in the organisation of an activity which carries a risk of injury. The activity is to be organised with reasonable care to avoid risk of injury. So a builder who engages a plumber and an electrician to work on the same site at the same time must take reasonable care that each can work without harm from the other. Beyond this sort of consideration the duty appears to have no scope for operation.

[26] So understood the duty does not apply to either Sugarloaf or the defendant. The former did not engage contractors to perform potentially conflicting or overlapping activities which, without proper planning, might cause injury. It engaged the defendant to fell, snig and deliver logs to its mill. There was a gang of three to work an entire plantation. The defendant was chosen because he was recommended for his competence by another sawmiller. Sugarloaf "is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work", per Brennan J who also pointed out that "the way in which the independent contractors chose to deal with the problem ... was a matter for them." Having engaged a competent contractor Sugarloaf was not, as I understand the authorities, itself under a duty to provide a safe system of work for the performance of the contracted task.

[27] The same can be said for the defendant. He engaged two competent subcontractors. Both the plaintiff and Mr Affleck were experienced and intelligent workmen. Each knew his job and could perform it well. Their tasks were to some extent interdependent. Mr Affleck could not safely snig logs from an area where the plaintiff was actually felling. On occasions the plaintiff required Mr Affleck's assistance to remove a hang up. These two needed a reasonably close understanding and working relationship. The defendant engaged the plaintiff and Mr Affleck for their known competence and skill. How they went about their work was a matter for them. They were the only ones who could sensibly devise the understanding and cooperation each needed.

[28] I cannot see that the duty described by the majority in Stevens had any scope for operation as between Sugarloaf and the plaintiff, or the defendant and the plaintiff.

[29] All this can be left aside because the evidence establishes that the plaintiff and Mr Affleck had devised a safe system of work which both understood. The plaintiff's injury occurred because, tragically, he misjudged the implementation of that system.

[30] The part of the plantation where work commenced was to be clear felled. This involved felling all of the trees rather than selecting and felling only fully matured trees. Clear felling is effected by cutting down all the trees along one row, then all the trees in the next row and so on. The trees are felled towards the cleared space created by the previous felling. Clear felling is an easier and safer operation than selective felling. There are fewer hang ups because the trees are felled into the open. It should, however, be observed that radiata pine is more susceptible to hang ups than other species because of its prolific side branching.

[31] 11 May 1992 was a Monday. The plaintiff arrived at work at about 7am. Mr Affleck was late. He did not arrive until about eight. The plaintiff decided not to wait for him but to start work. He liked to be "a few logs ahead" of Mr Affleck.

The plaintiff had felled about 10 trees before he encountered difficulty. One tree, significantly larger than those surrounding it, would not fall. It was a hang up. The plaintiff cut down a nearby tree, cutting it so that it fell onto the hang up in order to dislodge it. The attempt failed but the second tree fell to the ground. The plaintiff tried again with another tree. This attempt was also unsuccessful but this third tree also fell to the ground. The hang up remained caught by its branches. If the area of plantation which had been cleared previously is regarded as the "front" the hang up was in the front row of trees. The two trees cut down in an attempt to dislodge it were in a row "behind". The hang up was inclined slightly to the front but more to the side where its branches were caught in those of adjacent trees.

[32] The technique adopted by the plaintiff was well known to timber fellers as a means of toppling a hang up. It was widely accepted as an appropriate course of action, which having proved unsuccessful, left the plaintiff no option but to wait for Mr Affleck to dislodge the hang up. He did not have to spend the time in idleness. He could have moved down the row, well away from the hang up, and felled other trees into the clearing. In evidence the plaintiff accepted that he should have waited for Affleck, working elsewhere in the meantime if he chose to do so. (T84.1-8) What he did was to commence cutting the side branches off the two trees he had felled close to the hang up. Engrossed in this task he did not hear or see the hang up fall until it was almost on him. He tried to jump clear but was too late.

[33] The plaintiff does not know how far from the base of the hang up he was working when it fell, though he has always believed the distance to be about 30 feet. He was working at about right angles to the line of inclination of the hang up so he thought he would be quite safe if it did fall. Moreover he "wasn't that worried about it" because it appeared firmly wedged. It had resisted two blows from falling trees and remained stationary for about 15 minutes. (T38.20-40) The plaintiff explained he did not move some distance away to work because "it seemed to be a safe spot where I had been working. The tree was leaning that way and I was out here. I didn't think it posed a real threat." (T78.35-40) The plaintiff acknowledged, with the openness which characterised all his evidence, that the hang up constituted an obvious danger and one which was commonly encountered by forestry workers. He knew it was dangerous to work near a hang up because such trees can fall without warning. He thought where he was working "was safe enough ... it just seemed like the obvious place to get hurt was under it." He "knew the tree was there and ... where (he) was (he) considered safe enough at the time". (T87.40-55)

[34] After the plaintiff was struck he became dazed. When he came to his senses he was on the ground and unable to move. He was between 100 and 150 metres from the timber stockpile where Mr Affleck parked his skidder. His cries for help were heard by Mr Affleck. He estimates that about 15 minutes elapsed between the fall of the tree and Mr Affleck's arrival.

[35] The argument put on behalf of the plaintiff is that the system of work was deficient in two respects. First the plaintiff should have been warned about the dangers of working near hang ups and instructed to go and work elsewhere until the snigger brought it down. The second is that the plaintiff should have been allowed his own tractor on site so that he could use it to push over a hang up or he should have been given access to Mr Affleck's skidder for that purpose.

[36] The evidence does not establish the first alleged deficiency. The plaintiff knew of the danger. He did not need the defendant, or anyone else, to make him aware of it. He had in the past encountered hang ups and knew what to do about them. He and Mr Affleck had devised a perfectly satisfactory system. If the plaintiff could not get a hang up to fall by cutting down adjoining trees, Mr Affleck would use his machine to push it over or winch it backwards. The plaintiff would stand well away and indicate to Mr Affleck the existence and location of the hang up. Because of the short distance over which logs had to be snigged to the stockpile Mr Affleck was absent from where the plaintiff was cutting for only about 10 minutes at a time.

The plaintiff was not hurt because he had not been told of the danger. He was hurt because he wrongly predicted where the tree would fall. It is, I think, quite possible that in moving along the tree from which he was cutting branches the plaintiff got closer to the danger than he realised. He knew when he started to cut the branches that the distance he was from the base of the hang up was less than its height.

[37] The cases discussed in Hill-Douglas v Beverley 1998 QCA 435, and that decision itself, show that an employer will not usually be liable for failing to warn an employee of a danger which is well known to the employee and is within his competence to avoid.

[38] The second point is likewise not made out. It was not unreasonable for the defendant to refuse the plaintiff's request to have his tractor on site. The request was not made because of concerns for safety. The plaintiff hoped to use his tractor to make money. Mr Affleck's evidence shows the tractor was unsuitable. Whether or not its protective canopy complied with the relevant Standard the vehicle itself would not have stood up to the work. Its front wheels were too small. It did not have four wheel drive. It was too low to the ground and its tyres were insufficiently protected. The real point is whether the plaintiff should have been given access to Mr Affleck's skidder and some training in its use so that he could do the snigging when Mr Affleck was absent. The possibility had never been discussed and the plaintiff did not know where Mr Affleck hid the ignition key.

[39] The evidence does not permit a finding that (assuming a duty of care) it was negligent not to provide the plaintiff with the means of being his own snigger. There was no suggestion from any of the witnesses experienced in forestry work that fellers should, even occasionally, act as sniggers. Felling and snigging are separate and distinct roles. Feller and snigger work cooperatively and interdependently but perform essentially different tasks. There was no support from the expert called by the plaintiff for the notion that the plaintiff should have been equipped to do his own snigging.

[40] The plaintiff's proposal is impractical. Ordinarily both the plaintiff and Mr. Affleck would be at work at the same time so there would be neither occasion nor opportunity for the plaintiff to operate the skidder.

[41] A system of work in which felling and snigging were distinctly performed by different persons so that the feller did not himself have access to a skidder was not for that reason unsafe. If a feller was working without the immediate assistance of a snigger and encountered a hang up he was not thereby exposed to danger. According to the expert witness called by the plaintiff a feller in those circumstances should mark the existence of the hang up as a warning to others and then to leave the area until the snigger returned.

[42] The provision of a "stand by" machine which would be used only on the occasions that a feller encountered a hang up when the snigger was absent would not be a reasonable response to the risk. Considerable cost would be occasioned by having a machine standing idle. The system I have described would avoid risk to the feller without the cost.

[43] I have very considerable sympathy for the plaintiff. Evidence which was germane to the assessment of damages and which was led before agreement on that issue was reached shows the plaintiff to be possessed of very great courage and a determination to reduce the impact of this disability. The evidence relevant to liability does not, however, establish that either the defendant or Sugarloaf was in breach of any duty owed to the plaintiff. Nor does it show that the absence of a safe system of work was the cause of his injury. There must accordingly be judgment in the action for the defendants.

[44] I record my thanks to counsel for their considerable assistance during the trial. Their respective cases were thoroughly prepared, efficiently presented and helpfully argued. My task was thereby made easier.

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