Metron Medical Australia Pty Ltd v Windahl; Metron Medical Australia Pty Ltd... [2007] VSCA 40 | Case summary

27 Amended notices of appeal were subsequently filed by Metron, replacing its original notices against Mr Windahl and the VWA. It also abandoned its appeal as to the calculation of the matters prescribed by s.138 of the Accident Compensation Act 1985.

Metron's appeal against Mr Windahl

28 Metron argued that it should not have been found liable for Mr Windahl's injuries. It relied upon 11 numbered grounds, the first of which, 1A, was a compendious complaint that the trial judge had failed to deliver adequate reasons for his conclusions such as to amount to appealable error. This ground can conveniently be dealt after those grounds which allege specific error.

Grounds 1 and 2

29 These grounds concerned compliance by the Vectrosurge machine with Australian and international standards for medical electrical equipment and the failure by Mr Windahl to adduce evidence of any similar incidents involving the machine, notwithstanding significant sales and usage of the machine both nationally and internationally. Metron argued that because the machine complied with such standards the trial judge erred in finding that a failure to fit a varistor to the machine constituted a breach of its duty of care to those who might use it, including Mr Windahl. Further, it argued that, as there was no evidence that any similar incident had ever occurred, it could not be found negligent in failing to fit a varistor or similar device to the Vectrosurge machine.

30 The trial judge rejected the appellant's argument as to the standard on a number of different bases. He expressed doubt as to whether the possibly relevant Australian standard, AS3200:1995, applied to the Vectrosurge "... either because (the Vectrosurge) does not fit squarely within the definition of medical electrical equipment or because interferential muscle stimulators are not specifically caught." His Honour considered that the value of the standard as evidence in the case lay in the fact that it was informative as to the risks posed by the use of the machine for physiotherapy and for evaluating Metron's defence.

31 In a report of 15 July 2004, which was in evidence before the County Court, a Dr Peter Hart evaluated the Vectrosurge, after having tested a specimen of it. He proffered opinions as to its safety and as to its compliance with AS3200: 1995. He described the machine as applying "... a time-varying electrical voltage to the plaintiff's muscles via two pairs of electrodes that make good electrical contact with the skin." He expressed the purpose of the machine as being to electrically stimulate the repair of damaged muscle.

32 Dr Hart considered that although the Vectrosurge was probably a medical item covered by the Therapeutic Goods Act 1989 (C'th), the standard applied by the Therapeutic Goods Administration in evaluating the machine in the administration of the Act, namely AS3200:1995, did not purport to be applicable to electro-stimulation machines which are designed to apply an electric current directly to a patient, such that an incoming electrical disturbance would also be transmitted through the machine directly to the patient. As he pointed out, AS3200:1995 does not specify a limit for the transmission of an incoming voltage disturbance to a patient. It merely specifies that the machine shall not be damaged or misbehave if a transient over-voltage disturbance occurs on the input.

33 Dr Hart considered that the evidence of Mr Dimitropoulos, the physiotherapist, that the lights dimmed three times, was consistent with the operation of auto-release circuit breakers on the electrical power system supplying power to Mr Dimitropoulos' physiotherapy clinic. These circuit breakers are designed to open and close the power supply in response to a fault. Such a fault is often transient and may be the result of say, a tree branch falling across power lines. Dr Hart said that the circuit breakers are programmed to open and close three times to allow the fault to clear. He thought that the size of an over-voltage transient likely to have occurred at the time Mr Windahl said he was injured was, two, three or more times the nominal voltage (240 volts AC). Dr Hart was also of the view that if, as found by the trial judge, a fuse and the bridge rectifier on the machine were damaged when it was subsequently inspected, such damage would be consistent with an over-voltage transient having occurred.

34 Dr Hart was of the opinion that a very high level of protection against voltage disturbances is required on machines such as the Vectrosurge because, by their nature, they have electrical connections directly to a patient. He thought that the "zener diode clamps", which the machine did have and which are intended to limit the voltage that can be applied to a patient, are not effective protection against over-voltage because the diode is relatively slow to conduct and because it had substantial breakdown impedance at higher current levels. He considered that a better level of protection against over-voltages would be provided by "Transorb" devices of which the varistor is one. Such devices are designed to absorb some of the energy in the transient or current surge. Such devices are well known to circuit designers and are relatively inexpensive. Finally, Dr Hart considered that the fact that AS3200:1995 was silent about the limitation of transmitted voltage disturbances in machines such as the Vectrosurge was a failing in the standard.

35 Another expert, a Mr Cousins, whose evidence was also accepted by the trial judge was of very similar views to Dr Hart. Indeed he went further and costed the varistor at $1.45 retail or considerably less wholesale. He agreed with Dr Hart as to the non-application of AS3200:1995 to the regulation and control of purposefully injected currents into the human body.

36 The trial judge's characterisation of the relevance of the Australian standard, AS3200:1995, was entirely consistent with the evidence of the plaintiff's experts. To say that the Vectrosurge complied with that standard says nothing as to whether, in the exercise of reasonable care, a manufacturer designing a circuit in such a machine ought to have reasonably foreseen and taken adequate precautions against an over-voltage on the input side of the machine which might cause it to deliver an unintended electric shock to the patient, as Mr Cousins described. Both of the plaintiff's experts regarded the standard as being effectively irrelevant to the problem in this case. Its function is to set certain standards in respect of those matters it does regulate, not for those it doesn't. In one sense Metron's argument that compliance with the standard equates to a successful denial of negligence is not unlike that of the allegedly negligent motorist who seeks to defend a claim that he travelled too fast by proving that he was on the correct side of the road.

37 Accordingly, the fact that the Vectrosurge machine complied with AS3200:1995 as deposed to by experts called by it (Mr Ball and Mr Zombolas) does not preclude the finding the trial judge made that Metron was negligent in failing to provide appropriate protection in the circuit of the machine against the possibility of an abnormal transient input voltage which had the effect of causing a person being treated with the machine to suffer an electric shock.

38 The second matter argued by Metron in support of its submission that the trial judge was in error in finding it negligent was that there was no evidence adduced by Mr Windahl as to any previous similar incidents, either in respect of the Vectrosurge machine or other similar devices.

39 That such evidence would have been relevant is undoubted; it would have gone directly to the question of foreseeability, but there was already evidence from experts which was accepted by the trial judge from which an inference of reasonable foreseeability was able to be drawn. Both Dr Hart and Mr Cousins gave evidence which led the trial judge to infer that a reasonable manufacturer of the Vectrosurge machine would have foreseen a risk of injury to a patient if adequate protection against the effect of a voltage surge was not built into the machine's circuit. The trial judge found that, having regard to Metron's record keeping with respect to complaints about its product, the lack of evidence of similar problems with respect to the Vectrosurge machine prior to Mr Windahl's incident was not surprising. Further, Mr Payne, Metron's quality manager, gave evidence that in searching Metron's records he did not search for any complaints prior to an electronic system of record storage being introduced in November 1997. He said he would not know where any earlier records were. And there was no evidence as to any system of receiving or recording complaints from outside Australia where, apparently, a number of Metron's products were sold. The trial judge's finding that he doubted whether any useful conclusion as to design safety with respect to over-voltage supply or over-current delivery could be made from the lack of any evidence of similar mishaps is entirely consistent with and supported by the defendant's evidence, particularly that of Mr Payne and the documents he produced.

40 There is no substance in Metron's appeal in so far as it is based on Grounds 1 and 2.

Ground 3

41 This ground, which complains that the trial judge took into account matters that were irrelevant and failed to take into account matters which were relevant, is a general ground which was argued together with Grounds 4 to 7 and 10. These grounds are, in effect, particulars of Ground 3. It is convenient to deal with them seriatim.

Ground 4

42 This ground complains that a finding by the trial judge that Mr Windahl was injured as a result of a substantial over-supply of current, was against the evidence and appeared to be "... posited upon the assumption of the presence of burn marks on the respondent's leg".

43 The trial judge accepted Mr Windahl's account of what happened in Mr Dimitropoulos' rooms on 4 July 1997. That account was corroborated by Mr Dimitropoulos both in evidence and in a letter he wrote to Metron when he returned the machine. It was not challenged by Metron in cross-examination. Mr Windahl's account included reference to red marks on his skin where the Vectrosurge electro-pads were attached. His evidence as to his post-event condition and symptoms was not challenged. Mr Cousins' description of the effect of a power surge (or spike) on an electrical circuit (lights dimming three times etc.) further corroborated that that was the phenomenon which occurred at the time Mr Windahl said he was injured. It is difficult to see how the judge could have come to any other conclusion than that Mr Windahl was injured in the way he claimed. His finding is not posited solely or even principally on the existence of burn marks on Mr Windahl's leg. His finding in that regard was incidental.

44 There is no substance in this ground.

Ground 5

45 This ground again takes up the question of burn marks and asserts that the trial judge's finding in respect of this issue was wrong and contrary to the evidence.

46 In his judgment the trial judge made reference to the reddening of Mr Windahl's skin at [42] where he parenthesised the word "burning", [89] where he referred to "superficial burns" and [97] where he referred to "burn marks".

47 Mr Windahl had given evidence of reddening of his skin which was not challenged. There is no error in describing such marks in the way the trial judge did. In common parlance a reddening of the skin following an event involving an electric shock could properly be described as a "burn" without doing violence to the language.

48 The fact that Mr Dimitropoulos' evidence was that there were no burns or reddening on Mr Windahl's leg after the relevant event hardly creates a conflict which requires resolution by the trial judge other than by his stating his conclusion as he did. As already noted this question was not one of central importance to the case, particularly in light of the graphic description by both Windahl and Dimitropoulos as to what actually happened.

49 There is no substance in this ground.

Ground 6

50 This ground complains that the "shock" received by Mr Windahl was neither "identified" nor "quantified" by the evidence.

51 It is difficult to see what "identified" and "quantified" mean in this context. The event itself was well and sufficiently described in the evidence in the terms accepted by the trial judge. No error is demonstrated by this ground.

Ground 7

52 This ground concerns the trial judge's rejection of Metron's quality control manager's evidence as to his examination of the Vectrosurge machine after it was returned to Metron by Mr Dimitropoulos. The effect of his evidence was that the principal fuse in the machine had not burnt nor had the bridge rectifier in it been damaged. Accordingly, Metron complains that the trial judge's finding to the contrary was against the evidence and the weight of the evidence.

53 The trial judge did not accept Metron's case that upon inspection after the incident in Mr Dimitropoulos' rooms, the Vectrosurge was found to be undamaged. It is undenied by Metron that both a fuse and the bridge rectifier of the Vectrosurge were replaced after it was inspected. Its quality control manager, Mr Payne, explained that replacement as having been performed as a matter of caution, even though no defective parts were found on inspection or testing of the machine. However, a document under Mr Payne's own hand from the records of Metron, described those components of the Vectrosurge which were in fact replaced as having been "... affected by overvoltage" (emphasis added).

54 Mr Payne's explanation of what, on its face, was a clear admission that parts of the Vectrosurge machine required replacing because they had been "affected" by an over-voltage, was that he was merely recording what the physiotherapist had said. He then went on to say that what he had written was perhaps "... a poor choice of words".

55 The trial judge was unimpressed with Mr Payne. On his explanation of the above document alone he could probably have gone further and made a finding of disingenuity. He was entitled to make the finding he did.

56 There is nothing in this ground.

Ground 10

57 This ground makes complaints about three discrete alleged failings of the trial judge to take certain matters into account. The first two allege a failure to take into account a lack of particular pieces of evidence which, it was submitted, ought to have caused him to reject some of Mr Windahl's complaints, namely of falls and/or blackouts.

58 Metron submits that as there was not any record of complaints in Mr Windahl's GP's clinical notes concerning falls, blackouts, collapses or even dizziness between 4 July 1997 and 26 December 1997, this should have caused the judge to reject Windahl's evidence that such symptoms were in fact present. The trial judge had evidence from Mr Windahl and his wife that events of blackouts, dizziness etc. and other symptoms occurred during the period referred to. This evidence was largely unchallenged by cross-examination as was copious evidence of other symptoms. He also had evidence from a neighbour whom he erroneously (and irrelevantly) referred to as a doctor.

59 The third part of this ground complained that the trial judge did not take into account evidence from Dr Hamer, Mr Windahl's treating cardiologist to the effect that an absence of symptoms between 4 July 1997 and 26 December 1997, made tenuous the connection between the event of 4 July and Mr Windahl's neurocardiac condition.

60 This part of Ground 10 fails as a matter or logic. For it to have any basis there would have to have been the lack of evidence upon which the doctor's opinion operated. However, as already noted, the trial judge had sufficient evidence of symptoms in Mr Windahl during the relevant period to render Dr Hamer's evidence as to a tenuous connection irrelevant in this case. The factual basis for his opinion to be valid in this case did not exist.

61 There is no basis for this appeal succeeding on Ground 10.

Grounds 8 and 9

62 Ground 8 in the amended notice of appeal, which stated that a finding that the cause of any injury to Mr Windahl was a capacitor discharge which would have caused no harm should have been made, was not argued and need not be further considered.

63 Ground 9 complained that the trial judge should have addressed the question of the respondent's "abnormal sensitivity" to injury.

64 This ground appears to have had its genesis, not from any evidence in the trial, but from a comment made by counsel for Metron in his final address in respect of which he referred to Tame v New South Wales [4]. But there was no evidence led on the trial by either side in which the question of any "abnormal sensitivity" of Mr Windahl was discussed.

65 In the circumstances, the judge's dismissal of the point is entirely understandable.

Ground 1A

66 Finally, with respect to those grounds of Metron's appeal which go to the merits of Mr Windahl's case, it is necessary to deal with its first ground of appeal, namely that the trial judge's reasons for judgment failed to disclose an intelligible explanation of the process of reasoning which he went through to reach the conclusion he did (including his reasons for accepting or rejecting evidence).

67 The principles upon which this ground falls to be determined were not the subject of contention. In Fletcher Construction Australia Limited v Lines Macfarlane and Marshall Pty Ltd (No 2)[5] this Court set out those principles.[6]

68 A judge has an obligation to provide reasons for his judgment. Such obligation is a normal incident of the judicial process. Without such reasons a Court of Appeal would not be in a position to determine whether a decision of the trial judge contained appealable error or not. An adequate statement of reasons is a necessary foundation for the acceptability of the decision by the parties and the public and, furthermore, enhances judicial accountability so as to guard against an unconsidered or impulsive decision.

69 The content of a judge's reasons in any particular case will depend upon the circumstances of that case. Their Honours in Fletcher Construction cited with approval a statement of Meagher JA in Beale v Government Insurance Office of New South Wales[7] in which his Honour identified three specific requirements. He said that a judge should refer to relevant evidence, that he should set out any material findings of fact and that any conclusions or ultimate findings of fact reached should provide reasons for reaching those conclusions or making the relevant findings of fact. It is necessary for the trial judge's reasons to be such as to enable a proper understanding of the basis upon which he has come to his decision.[8]

70 In the instant case, as has already been discussed with respect to those specific complaints raised by Metron in its other grounds of appeal, his Honour found that the event described by Mr Windahl occurred in the way he described it. He was satisfied that the experts called on Mr Windahl's behalf, namely Dr Hart and Mr Cousins provided a cogent, logical and acceptable explanation for that event and that that explanation demonstrated negligence on the part of Metron. He found that such negligence was a relevant cause of Mr Windahl's subsequent injuries and the loss and damage flowing from them.

71 In reaching those findings his Honour made many subsidiary findings of fact, some of which he articulated and some of which he did not. However, even where he did not specifically refer to such findings, that they were made is an inescapable inference from the conclusions he reached. For example, when considering what he described as the voltage surge which he found accompanied the event in the physiotherapist's rooms described by Mr Windahl, the trial judge considered it of sufficient magnitude to blow the fuse and damage the bridge rectifier in the Vectrosurge machine, which finding necessarily involved a finding that Mr Payne's description of the result of his inspection of the machine after the incident was erroneous. Or again, in being satisfied as to the causation of Mr Windahl's medical condition, he must necessarily have found that there was the necessary proximity between the onset of symptoms and the causative event to enable acceptance of Dr Hamer's opinion that one was the cause of the other.

72 So far as the case of the defendant Metron is concerned, his Honour rejected the evidence of Mr Ball and Mr Payne, finding them both unimpressive. As he pointed out, Mr Ball's evidence did not account for the happening of the event described by Mr Windahl at all. His Honour found that he gave no cogent explanation for it. As far as Mr Payne was concerned, the trial judge rejected his evidence concerning the inspection of the machine after the event and concluded that Metron had no answer to the evidence of Dr Hart and Mr Cousins. He concluded by summarising, in four numbered paragraphs his conclusions as to why he preferred the evidence of the plaintiff's experts to Messrs Ball and Payne.

73 The trial judge dealt with each of the substantive defences put up by Metron in terms which have already been described with respect to other grounds of appeal.

74 Whilst it is true to say that there were some errors of fact or misdescription in the trial judge's reasons for judgment, none of them alone nor all of them together constitute such a defect in those reasons as to render them other than adequate.

75 There is no basis for upholding Ground 1A of Metron's grounds of appeal.

Costs

76 Grounds 11, 12, 13 and 13 (sic) of Metron's amended notice of appeal concern orders for costs made by the trial judge.

77 Grounds 11, 12 and 13 (the 2nd) complain that the trial judge ordered Metron to pay Mr Windahl's costs on an indemnity basis, certified daily fees for counsel rather than brief fees with refreshers and fixed junior counsel's fee at other than the County Court scale and that in doing so his discretion as to costs miscarried.

78 A perusal of the transcript where his Honour made these costs orders does not reveal any miscarriage of discretion so as to require correction in this Court. The fact that his Honour dealt with the costs questions without extensive explanation does not constitute error when the questions were argued by counsel at such length as they considered necessary so that his Honour had a proper basis for the exercise of his discretion as to costs. Accordingly these grounds cannot be made out.

Ground 13 (1st)

79 This ground concerns an order for costs thrown away by reason of an adjournment granted at Mr Windahl's counsel request during the trial. Metron submitted that it should have those costs because of the circumstances in which the adjournment was granted.

80 The transcript in the appeal book records Mr Windahl's counsel's application to adjourn the trial at 3.25pm on Thursday 12 August 2004 and that the trial was in fact adjourned until 16 August 2004. The transcript also shows that the question of these costs was determined by the trial judge after he delivered his judgment and in the course of dealing with costs generally. No error has been demonstrated with respect to this matter.

Conclusion as to Metron's appeal

81 Metron's appeal against Michael Windahl should be dismissed.

Third party appeal

82 In the proceeding in which Mr Windahl was successful against Metron that company joined AHC as a third party seeking contribution or indemnity from it pursuant to the Wrongs Act 1958. The basis upon which contribution or indemnity was sought by Metron against AHC was that AHC was liable in respect of the damage suffered by Mr Windahl as a result of his mishap with the Vectrosurge machine because it negligently caused the injury to his right knee for which he was being treated when the mishap occurred.

83 In its defence AHC denied negligence, pleaded that the mishap with the Vectrosurge machine was a novus actus interveniens, that Mr Windahl's injuries were too remote and that, in any event, as the Victorian Workcover Authority's agent had not determined that he had a serious injury to his right knee as a result of any accident suffered in the course of his employment with AHC, it was not liable to him in respect of the injuries for which he sued Metron.

84 The fundamental basis of liability to contribution under the Wrongs Act 1958 is that the person against whom contribution is sought must be liable in respect of the same damage as the claimant. In the present context that damage is the damage suffered by Mr Windahl as a result of the incident with the Vectrosurge machine of 4 July 1997. That is the only damage for which Metron is liable.

85 The trial judge determined the issue of AHC's liability definitively in Metron's favour. He found that AHC was negligent in the system of work which it required Mr Windahl to undertake and that his mishap with the Vectrosurge machine was a foreseeable consequence of necessary treatment to his right knee necessitated by that negligence.

86 His Honour determined the issue of negligence against AHC largely on the basis of Mr Windahl's description of his accident at the Ringwood Private Hospital. Such description was put before the Court by Mr Windahl's adoption and verification of information he gave an ergonomist who investigated the incident on the instructions of his solicitors. The ergonomist repeated what Mr Windahl told him in a report to those solicitors. The relevant portion of that report was put to Mr Windahl in cross-examination by counsel for Metron and was verified by him. The trial judge admitted this portion of the ergonomist's report over objection by counsel for AHC.

87 Mr Windahl's evidence was that on 4 March 1997, in the course of his duties as a nurse at the Ringwood Private Hospital, he was required to move beds and equipment from a ward to a storage area known as "the garage". He had done this of many prior occasions. The distance Mr Windahl had to move the bed was between 75 and 100 metres and the route he had to take involved movement along a footpath section and an area of a carpark. The beds had to be lifted over a small garden bed and a drainage gutter to travel across that carpark. In traversing the garden bed Mr Windahl had to push, pull and lift the beds as he had been told by a supervisor to be careful not to harm the plants in the garden. The carpark area across which the beds had to be moved had a slope of about 10 degrees.

88 On the day in question Mr Windahl spent between one and two hours moving equipment between the ward and the garage storage area. He completed this task by about 10.30am but some time later that morning he was again asked to move equipment between the two locations. He asked the charge nurse if he could have assistance as he was feeling tired from having previously carried out the moving work as well as completing other nursing and orderly tasks. He was told there was no assistance available and he should move the equipment himself. Whilst pushing a bed from the garage storage area across the carpark towards the main building, Mr Windahl sustained injury to his right knee.

89 The bed Mr Windahl was moving had four swivel castors with brakes fitted to two castors at the end of the bed. It was not possible to prevent these castors from swivelling. The incident in which his knee was injured occurred when the bed oversteered towards a stationary car as it rolled across a drainage gutter. In an attempt to control the movement of the bed he quickly moved the front corner of the bed to position himself in front of it so that he could apply force to slow the bed down. His right leg was positioned awkwardly in front of the bed and in the process underwent a twisting movement. He recalled hearing a "grinding crunching" noise in his right knee.

90 Mr Windahl did not recall any policy or procedure of his employer relating to bed movement and he had not received any manual handling training regarding the movement of beds or in procedures for moving beds and equipment to and from the garage storage area and the ward.

91 Mr Windahl was cross-examined by counsel for AHC during which cross-examination he verified again the substance of the circumstances in which he injured his right knee. It was not suggested that his account of the event was not accurate and AHC called no evidence concerning the incident at all.

92 The trial judge found that AHC was negligent as Mr Windahl's employer and that that negligence contributed to Mr Windahl's subsequent injury by the Vectrosurge machine because it "put the plaintiff on the physiotherapist's table leading to the electric shock". He rejected arguments of novus actus interveniens and remoteness and found that AHC was a person liable in respect of the injuries Mr Windahl suffered as a result of the mishap with the Vectrosurge machine. As it was the same damage for which Metron was liable, AHC was liable to contribute towards Mr Windahl's damages. His Honour referred to Mahoney v J Kruschich (Demolitions) Pty Ltd[9].

93 The trial judge did not accept that the absence of a serious injury certificate in respect of Mr Windahl's right knee injury was a bar to a successful claim by Metron for contribution, particularly as a certificate in respect of the injuries suffered by Mr Windahl as a result of the electric shock - the only injuries for which he claimed damages in this proceeding - had been granted by the Workcover agent.

94 The trial judge compared the departure by AHC from the standard of care expected of a reasonable employer in requiring Mr Windahl to move the bed in the circumstances it did with the departure from the standard of care reasonably expected of Metron as a manufacturer of electrical equipment and decided that AHC should contribute 20% of the damages awarded against Metron.

95 AHC appealed against the trial judge's findings and his conclusions on a number of grounds, not all of which were pressed when the appeal was heard. It is convenient to deal with AHC's grounds of appeal in the order in which they were argued.

The admissibility of the ergonomist's report

96 As already noted, Mr Windahl's account of the circumstances in which he injured his right knee was placed before the Court by counsel for Metron during his cross-examination of Mr Windahl by having Mr Windahl adopt as true and correct a description of those circumstances which Windahl had given to an ergonomist. The admissibility of the part of this document which was sought to be tendered was argued at length before the trial judge. A number of different bases of objection were apparently raised but, in the end, the trial judge admitted that portion of the document continuing Windahl's account of the event in which he injured his right knee. That he did so he made clear his reasons for judgment.

97 In this Court AHC has maintained its objection to the tender of this document. Its argument was that, if that document was inadmissible, then, there was no basis upon which AHC could have been found liable to contribute to Mr Windahl's damages.

98 Counsel for AHC argued that the method of adducing evidence of Mr Windahl's accident in which he injured his right knee was not permissible. It was not permitted by any statutory provision or rule of evidence and such a course was "... inimical to the proper way to adduce evidence".

99 At the time he tendered the relevant document, counsel for Metron was cross-examining Mr Windahl, a party generally adverse to his client's case even if, on the particular matter of the accident at the Ringwood Private Hospital, he may not have been as antipathetic to Metron's case as he could have been expected to be with respect to its case concerning the Vectrosurge machine. Metron's counsel was entitled to ask leading questions of him and could, had he wished, put the contents of the ergonomist's report to him as a long series of leading questions to have him adopt serially each fact which the ergonomist said he had described to him. By adopting the course he did the cross-examiner was simply taking full forensic advantage of the situation he found himself in and ensuring, as far as possible and subject to any disagreement by the witness, that the version he was contending for was placed before the Court.

100 The document as admitted by the trial judge assumed no more importance or significance as evidence than as the convenient repository of a summary of the circumstances in which Mr Windahl said he injured his right knee. Had the trial been before a jury the trial judge might have withheld the document from the jury, if, to ensure a fair trial, he thought that the written word might convey an over emphatic description of the event with a risk that the jury might give it more weight than it deserved. However, in the circumstances of this case where AHC neither suggested any contrary version of the event to Mr Windahl in cross-examination nor called any evidence disputing his version, it is difficult to see what harm would have been caused had the hypothetical jury read the account Mr Windahl gave to the ergonomist.

101 These days the trials of most civil witness actions in this Court are conducted using witness statements, where the evidence-in-chief of each witness is adduced by proving and tendering a statement in writing of that evidence. Such a statement is simply a convenient and efficient way of putting evidence before the Court. It is, of course, subject to cross-examination as was Mr Windahl's account in this case and the use of any particular witness statement is always subject to the trial judge's direction that the evidence in chief of any particular witness be given viva voce. The practice is too well entrenched in modern litigation to suggest now that such statements are inadmissible. But this case is a fortiori that situation; here the statement was tendered not by counsel calling the witness but by a cross-examiner. It is clearly admissible as what it was, namely, Mr Windahl's description of how he injured his right leg.

102 In any event, even if the part of the ergonomist's report tendered before the trial judge had been inadmissible, its reception would not have been a proper ground for this Court to order a new trial, as no wrong or miscarriage of justice, let alone a substantial wrong or miscarriage of justice, would have been demonstrated by AHC in the circumstances.[10]

103 This ground of appeal has no merit.

Breach of duty by AHC

104 The second argument put by AHC was to the effect that there was no evidence upon which the judge could properly hold that AHC was negligent in requiring Mr Windahl to undertake the task which he was undertaking at the time he injured his right knee. It submits that as the only evidence before the Court was Mr Windahl's version as set out in the ergonomist's report, there was no proper basis for the trial judge's finding.

105 AHC owed Windahl as its employee a duty to take reasonable care to avoid the risk of his being injured in the course of caring out the duties of his employment. The trial judge found that Windahl ought not to have been required to undertake the task he did without assistance. He had asked for assistance but it had been denied to him.

106 In the circumstances the trial judge was entitled to reach a conclusion that AHC had been negligent. The reasonable response to the risk posed by undertaking the job on its own would have been to have provided another person to ensure that the bed remained under control whilst it was being manoeuvred in the way Windahl described. That injury to a person trying to control a runaway bed in the circumstances (particularly where, as appears to have been the case, it had something on top of it) is foreseeable. The reasonable response to that foreseeable risk was simple: the provision of another person to ensure that the bed did not get out of control. The employer did not provide that other person.

107 In the circumstances there is ample basis for the finding of negligence against AHC and those grounds of appeal which suggest that the judgment is not supportable cannot succeed.

Apportionment

108 Section 24 of the Wrongs Act 1958 provides that the amount of contribution recoverable in a proceeding such as the present must be such as is found by the Court to be just and equitable having regard to the extent of responsibility for the damage suffered by the plaintiff of the person against whom contribution is claimed.

109 In the circumstances of this case the trial judge decided that the principal cause of the plaintiff's injury was the mishap with the Vectrosurge machine, but that the negligent employer bore some responsibility because it had "put (him) on the physiotherapist's table ...". In assessing liability at 80/20 as he did the trial judge reflected his opinion that the principal liability lay with Metron.

110 In a unanimous judgment in Podrebersek v Australian Iron & Steel Pty Ltd[11] the High Court (Gibbs, CJ, Mason, Wilson, Brennan and Deane, JJ) said:-

Metron Medical Australia Pty Ltd v Windahl; Metron Medical Australia Pty Ltd v Victorian WorkCover Authority; Australian Hospital Care

At a glance

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Judgment (27 paragraphs)

Legislation Cited (2)

Cases Cited (14)