Monad (Constructions) Pty Ltd v. Fernance, James Matthew [1979] FCA 74

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

In this appeal from the Supreme Court of the Australian Capital Territory the appellant Monad (Constructions)

Pty. Limited was the first defendant to a claim for damages by the

respondent Mr, James Matthew Fernmce,. "r. Reginald Davis was the

second defendant, The respondent claimed that his employer, the

appellant, had been negligent end that he hed suffered injury thereby.

The learned trial judge found that the respondent was ingured on 14 September 1972 in the manner which he described in evidence. The respondent said that he and Davis were unloeding a heavy gelvanized iron shed, the property of his employer, from the back of a truck also owned by his employer. In the course of unloading, as the respondent put it, he momentarily "copped the weight", the exact amount of which is not known, but the shed weighed atout 580 lbs. The result was the respondent suffered a serious ingury to his back. He claimed that this accident was the result of a failure by his employer to take reasonable care for his safety at work. He also sued Mr. Davis. The learned trial gudge gave judgment for the respondent against the appellant, and dismissed the respondent's claim against Mr. Davis who 1s not party to this appeal. The appellant before this Court contended that, on the evidence, the respondent's claim should have been dismissed, as no finding of negligence should have been made against the appellant. The appellant contended also that if on the evidence the finding that the respondent's inguries resulted from negligence on the part of the appellent be affirmed, there should have been a finding that the respondent was guilty of

contributory negligence. The question of damages is not 1n issues

We consider that the Court should deal with this appeal in accordance with the following principles. First, it accepts facts which were and are undisputed. Secondly, at least in general, 1t accepts a finding of primary fect by a trial gudge, where there was evidence on which he could make such a finding, notwithstanding that the evidence was disputed and the trial gudge's dec1sion turned on the credibility of witnesses. In such a case, the trial judge has the very valuable advantage of hearing and seeing the witnesses. Thirdly, findings by the trial judge which are in the nature of inferences from primary facts found by him, are open to scrutiny by this Court on the principles enuncieted by the majority of the High Court 1n Warren v. Cocmbes, (1979) 53 A.D.J.R. 293. This is that an appellate Court in deciding what is the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial jucge will give respect and weight to the conclusion of the trial gudge but,

_,once having, reached_its own _ccrnclusion, will not shrink

At the trial there were serious difficulties cf directly conflicting evidence which the learned trial judge discussed and carefully examined in his judgment. A major contention of the appellant at the trial was tnat the incident of which the respondent gave evidence rever occurred. The respondent's account was that while he was at work driving the appellant's truck he was ordered by radio to collect, from a specific site

in Fyshwick, a large "site shed" which was a corrugated iren

structure used by the appellant for storing building materials under lock and key during the perzod when a buzlding has not progressed to the state at which 1t can be locked up. According to the respondent he »roceeded to the site, it

was there loaded on the truck by about eight men and he was

then ordered to take 1% to a specific site in Weetangere

to unload. Thereafter the respondent drove with Davis

to Weetangera. He said that with Davis he was removing the

shed from the truck at the nominated site in Weetangera when

The respondent gave evidence that the building on the site wnere he and Davis unloacec the shcd, hed reached the stage of foundations only. This would be consistent with

The evidence adduced for the appellant tended to show that the incident could not have occurred at the time, at the place, and in the manner describec by the respondent, Davis denied that he had ever been in a truck with the respondent on an occasion such as that described by ham,

the relevant time there were only two building sites in Weelangera on which the company was working, and that buildings on both those sites had progressed to a much more advanced stage than that described by the respondent, The respondent, some little time after the accident, made a claim on a printed

the day and place of the accident contazned therein vere

altogether different from those given in his evidence,

On each of these matters, however, there was evidence which somewhat reduced the weight of the appellant's evidcnce. The reliability of Davis' memory was shown tc be questionable, and the learned trial gudge found that he appeared to be confused at times, The evidence that there were no building sites other than the two which did not answer the description given by the rcspon- dent was shown to rest on the recollection of the employecs oF the appellant of events of six years earlier snd not directly on any doc- uments produced in evidence. The printed form on which the claim vas made was shown to have been signed by the resvondent at a time when some of the detaiis had not been filled in, This form was complcted by another employee of the appellant from inrormation given from sources other than the respondent. It was shown, however, that it was the respondcnt who filled in Davis! nane as a witness of the accident - a remarkable thing to do if Davis was not in fact present. yet the respondent's claim for workmen's compensation was met. Some other employees cof the appellant who could have denied the truth of the respondent's evidence that the shed was loaaed on to the truck in the first place, were not called, and no explanation was given of their

The evidence in conflict with the respondent's evidence was mainly that of Davis. Beyond referring to the confusion in the evidence of Davis the leerned judge did not specify any particular aspect of his evidence which caused him ultimately

to regard it as unacceptable. We have no difficulty in conclucing

that the learned judge was right in so regarding it.

which were tnevitably open to criticism, Early ; in his evidence Davis said that 1n the course of

loading and unloading site sheds over a pericd in the

of the respondent he had never even touched the ropes wiich held

a shed on to a truck. In cross-examiunation he at first repeated

this but later said "I never untied them. Perhaps maybe cne

to be asserting an almost complete Jack of knowled 'Dp

side I used to untie", Later he agreed that from time to time he would clear the ropes away. He said that he had meant that he had never tied a shed on vith then, Failing to properly

2 release one of the ropes was one of the items of negligence

. On the question of shed sizes, Davis appeared at first

large sheds,which he said was a "funny thing", But gradually

auite a good memory of the large sheds returned to him.

event in which the respondent said he was injured con

In the course of tlis evidence Davis said that he had not

used any document to refresh his recollection before giving

evidence and that he did not have and had never been given

a copy of any statement or anything of the sort, Later he

said that he had made and signed such a statement, in fact

that he had made two statements, one in 1975 and one a couple

of days earlier and had used one of them for the purvose of refreshing his recollection so as to prepare himself to give evidence and thal the statement was in his possession at his home. Generally, 1t may also be said thet on 2 reading of the evidence of Davis 1t evokes a feeling of unease.

The learned trial gudge, while recognizing, and vei'y carefully dealing with, the difficulties caused by the conflict of evidence, found as a fact that the accident prohably occurred in the manner and at the time and place described by the respondent. There was ample evidence to support this

This Court nas carefully considered all the evidence

in conflict with that of the respondent and the criticisms of the respondent's evidence. This evidence was persuasively marshalled by senior counsel for the appellant, but in total. effect it fell far short of persuading this Court to come to a different conclusion, The evidence in conflict with the ~respondent's evidence -and the criticisms of that evidence are discussed in detail below ~ at this stage it 1s sufficient

to say that having regard to the great advantage enjoyed

by the learned gudge, of seeing and hearing the witnesses, this Court has no disposition to differ from his finding of fact, turning as 1t did on the credibility of the witnesses and a careful examination of the relevant evidencc, both an fevour

The second major argument for the appellant was thet,

assuming the truth of the substence of the resvondent's evidences,

the inference that the appellant was negligent should not have been drawn. Here, of course, as pointed out by the High Court in Warren v. Coombes (supra), this Court has much freedom to

It appears that before the accident there were two kinds of "site shed" used by the appellant. One was the kind which was involved in the accident, This is called the large shed, its dimensions were 10' x 8' x 6', The respondent gave evidence of the instruction he had received before the accident for moving this kind of shed. This was that to move the shed it had to be casauntied by un- bolting the roof from the walls and the walls from the floor. Hach of the larger walls weighed about 100 lbs, and the other parts of the shed were correspondingly heavy. This instruction, according to the respondent, was given by another employce of the appellant called Betts. He was not called by the appellant at the trial, and no explanation vas given for his absence. The respondent said that he had never before the accident moved a shed of this kind in its assembled state, and this evidence

The other kind of shed measured about 6' x 6' x 4', This smaller shed weaghed about one third as much as the larger, and the respondent gave evidence also of the anstruction he had received in the manner of unloading it. In effect, this was

that the shed in its assembled state was to be pushed towards

the back of the tray of the truck on whih it was resting, and

then tipped over the edge in a manner which involved a man standing on the ground and exercising some control over its fall; this necessarily involved momentarily taking some weight. In the respondent's words, describing the occasion when he

".,.so it tilted and I just held the part of the top of it, the roof part as it was tilting."

He said that a Mr, Stocks, described ¢s the "maintenance man" for the appellant, and the respondent's superior as en employes, actually gave him the instruction in the handling of the small shed, and although it was not said that Mr. Stocks explicitly anstructed the respondent to control the shed as it tilted,

in the manner described, nevertneless he watched the respondent doing this and did not correct him. Mr. Stocks was not called as a witness to deny the respondent's account, and no reason was given for this absence.

" Thé respondént's"evidence was that on the day of the accident his orders to pick up the shed, and deliver it to the site where the accident occurred, were given to him by redio by

two different persons, both superior to him, in the employ of

the appellant. Both these persons, Mr. Conroy and Mr. Roden the letter

being a director of the appellant, gave evidence for the appeller.t,

and each said that he could not deny that such an order was given to the respondent in the manner described, though Mr. Roden said that it was not Mr. Conroy's job at that time to give such

orders, Mr. Conroy did not agree with Me. Togen on wuss

question. The respondent's account of the matter was that the

gob was described as urgent, indeed that when he demurred about doing it that day because of other work he had to carry out

Mr. Roden antervened over the radio saying "You're bloody

well going to do it today". Conroy pointed out that the shed had to be moved from Fyshwick to make room for a concrete pour, and it had to be delivered to the Weetangera site that day, because the next day mater1als were to be delivered there.

The respondent said that in obedience to this order he took his truck to the place in Fyshwick where the shed was, and that the

shed was then in its assembled state lifted on the truck by

eight men at the direction of Stocks and the respondent said

be again spoke to Conroy by radio and told him that it was

a shed of the large size and asked him how it was to be

removed from the truck, The respondent said that Conroy in-

structed him simply to "slide it off" and that he seid

to Conroy, "We'll give it a go". When the respondent and Davis

arrived at the site, there were no other workmen there. , The respondent said that if they had dismantled the shed as

it stood on the truck it would have fallen apart. It appears

that he and Davis removed the shed from the truck in the manner

in which the respondent had been taught to remove the smaller

type of shed. After manoeuvring the shed a short distance whilst they stood on the ground, the next movement of the shed was done

by sitting on the tray of the truck with their backs to the back~board and pushing with their legs. Thon they dismounted and pushed the edges of the shed which projected over the edges of the tray, so as to ;

swivel it alternately in one direction and the other. The respondentts

account then went on as to the final moments before he was injured

"And were you able to see Reg from where you were?-~- Occasionally.

And where was he?---ile was on the opposite side of the truck ~ the same end,

And did you then commence the push pull slewing ection®--~- Yes sir.

And what happened next?--~ We had a breather. And I said, well, it looks like its close vo the point of balance, just go a little bit more.

Yes?~-- And we took positions and we started, I follt Reg sore

Yes?--~ And I went bacl:, pushed egain and when [ went to pull

back it was a bit heavier, the next minutc I copped the weight, sir."

It was at this point that the respondent felt the sharp pain in his back, the first symptom of the ingury of which he

In its criticism of the evidence of the respondent, the appellant relied particularly upon the respondent's answer to interrogatory eight, the erroneous particulars of some of the relevant events appearing in his written claim for Workmen's Compensation which is discussed above, and his description of the manner in which he said he suffered his injuries. It was said that the respondent's answer to interrogatory eight was critical. It operated, so it was said, to establish that the respondent had been instructed by Mr. Stocks in March 1972 that "whenever I was required to unload a fully assembled shed from a truck that I was to slide the shed to the back of the truck until 1t tips off the end of the truck and hits th? ground and then drive the truck slowly away". It was said that ta unload the shed by this manner did not unvolve taking weight. It was urged that an

instruction to unload the shed in the manner described in

the duty of the appellant to give adequate instructions to the respondent. It was urged for the appellant also that to introduce a weight taking element into the operation was to

But there 1s a risk of error in taking the terms of an answer to an interrogatory expressed in condensed terms as a complete and satisfactory statement binding a party in matters of detail. The respondent to a set of interrogatories and those advising him must recognise the heavy responsibility therein involved and the risk to the respondent's case if by reason of a casual approach the answer does not fully represent the situation. But unfortunately the scrutiny necessary to ensure that the answer 1s correct and conveys everything that at trial may be expected of it is sometimes not given. In this case the answer was prepared in Canberra, and sent to the respondent at Cessnock. The respondent was nineteen years old and unacquainted with documents and 1t is a real possibility that he would not have understood the precise significance of wnat was in the document. Examination of the evidence satisfies us that

the answer does not fully represent the situation to which it refers.

'As stated above, Mr. Stocks was not called to give evidence aaa nis

absence was unexplained. The only oral evidence as to the instruct- - ions in fact given by Stocks is that of the resvondent. From

that evidence 1t 1s clear that the instructions given to him concerned only the method of loading and unloading the smaller sheds. They were, in the words of the answer to the interrogetory set out above, "fully assembled" sheds. In the context of the evidence it is clear that the expression "a fully assembled

shed" is used to designate one of the small sheds. It is

apparent that at the stage when the instructions were given

ES ee, about the fully assembled sheds not one large shed had ever been loaded or unloaded 1n a fully assembled state. They

had always been divided into sections for transport. The instructions referred to in the answer to interrogatory e1gint were given in a demonstration by Mr. Stocks to the respond-nt of the method of loading and unloading a small shed which did not have to be dismantled for transport, The manner of un- loading included manvally or bodily manoeuvring the shed to the back of the truck, and then, as instructed by Mr. Stocks, "Just pull 1t out a bit further and let 1t come dowm", Then as tne respondent said, "It tilted and I yust held the part of

Involved in this was the moving of the shed to the rear of the truck and allowing it to tilt and then taking some weight in steadying it as it went Wown to the ground. The demonstration and instruction had nothing to do with the method of loading and unloading large sheds. This was manifestly so, because it was the practice to dismantle such sneds. As stated above the respondent had given evidence of being in- structed by one Betts as to the manner of loading end unloading the large sheds for transportation, He said that the instruction was that such sheds be dismantled. Betts was at the time an employee of the appellant. He was not called as

a witness and no explanation for that omission was given.

This evidence of the respordent as to these instructions is inherently probable and the appellant could so easily have -Gisproved it by evidence of Betts or Stocks and other members of 1ts staff. Certainly the answer to interrogatory eight omits any reference to steadying the shed as 1t tilted but for reasons indicated above there 1s no reason to doubt the instructions the respondent had received about unloading the Llarfe sheds anc the small sheds including the demonstration in the

The consequence of this 1s that 1¢ is to be inferred that except for Conroy's instruction on the day of the accident, to slide the large shed off the truck, no instruction was given to the respondent as to how to unload one of the large sheds in one piece. The reason for this was that when Mr. Stock's demonstration and instruction were given the idea of transporting a large shed in one piece was unknown.

The consequence of this was that when the day did come to unload the large shed in one piece all the respondent cou2d Go was to remember that he had been told to slide it off, make use of his experience and instructions about unloading the small sheds, and adapt accordingly.

The inference to be drawn 1s that in doing this the respondent and Davis pushed the shed some way towards the rear of the truck by putting their backs to the truck cabin and pushing the shed with their legs. Thereafter they manoeuvred the shed furvher to the rear by pushing and pulling and swivelling. The evidence as to the final moments where he describes his "copping" the

We point to the following findings of the learned trial judge. The first 1s "In all the circumstances I think it is probable that the plaintiff's /respondent's/ version of what occurred did in fact occur." The second. in relation to the respondent's evidence, is "Despite this 1 thought that overall he was endeavouring to tell me the truth." The third finding is "Irrespective of whether Mr. Conroy gave that specific direction or not I think that Monad was negligent in loading a shed of this size on 10 a truck and expecting the plaintiff /the respondent7 and Mr. Davis to unload at Weetangera without any assistance or without any equipment." Whilst the question of negligence is an inference we consider that 1t 1s clear that the learned trial gudge, having seen the witnesses and having accepted the respondent's evidence that the large shed was loaded onto the truck and that tne respondent and Mr. Davis were required to unload 1t without any cther assistance and without any equipment, drew the correct inference. A&1s0 zn our opinion, the proper inference to be drawn from the facts is that the respondent's injury was caused by the appellant's

breach of its duty to provide a reasonably safe method of

It is said that the respondent should have avoided taking any of the weight when the shed tilted. But the situation would appear to be that the control of the shed to get it to

the balance point and then to tilt, inevitably involved

easing or attempting to ease the weight of the shed so that it would swivel and ultimately tilt and that when the shed did tilt

it did so suddenly and the respondent was caught holding it and did not let go quickly enough. That such a thing would happen

to a boy of nineteen struggling to manoeuvre such a heavy,

awkward shed and no doubt feeling the necessity to steady the

fall of the shed a little at least, so that it would not be damaged, is not surprising, rather the reverse. And it was in requiring him to do this without vroviding him with eppropriate equipment, manpower, supervision or adequate anstructions that

Was the appellant's negligence. It should be noted that

despite the disparity in ages the respondent was regarded by

all concerned as the employee in charge of the enterprise. Davis was aged 52 years, To send the respondent to unload such a heavy and avke ward shed with the assistance only of Davis and without appropriate supervision or adequate instruction was in the words of Dixon C.J. and Kitto J. "the sort of thing you would think might well arouse some degree of apprehension in any syectator of the operation,

to say nothing of an experienced employer. " See Hamilton v.

Nurcof CWA. )Pty. "Lita - (4956) 96 C.L.R. 18 at pps. 25-26.

The respondent and Mr. Davis were required to carry out @ potentially dangerous task 1n a way contrary to the established practice of dismantling large sheds before removal. The duty of an employer was discussed by Mason J. (with whom Barwick C.J., and Gibbs and Aickin JJ. agreed) in Raimondo v. The State of South Australia (1979) 23 A.L.R. 513

take reasonable care for the safety of its workmen or, as it was expressed by Dixon C.J. and Kitto J.

in Hamilton v. Nuroof (W.A4.) Pty. Ltd. (1956) 96 C.L.R. Té at p. 25 , 'to take reasonable care to avoid exposing the employees to umneccssary risks

of injury'. In the performance of this duty .2t was the responsibility of the respondent to ensure that all reasonable steps were taken to provide 2 reasonably safe system of working. In general iv is for an employer to devise and instruct his servants to follow a system of work which will obviate une»smected and unusual dangers in the undertaking in which they are engaged. This responsibility is not confined

to unexpected and unusual dangers; in appropricte cases it extends to dangers which are obvious both

to him and to his workmen, as the decision in Hamilton v. Nuroof (W.A.) Pty. Ltd. itself demonstrates - see esp. op oat, 33-34,"

With respect to the appellant's contention that the respondent was guilty of contributory negligence the Court 1s satisfied,for reasons which are substantially similar to the reasons for the conclusion stated above,thet on the evidence no anference of contributory negligence should be drayn against the respondent. Finding that the: respondent had not been shown the proper way to move the larger kind of shed, and that he adopted the method appropriate for the smaller kind, the Court thinks that this was not unreasonable in the circumstances of urgency and the means available to the respondent. It was contended that the shed was so obviously heavier than a shed of the smalier kind, that the sensible procedure for the respondent and Mr, Davis would have been to keep pushing and swivelling the shed until it fell off the tray of the truck, without attempting to control it as it fell. Such an argument ignores the natural tendency of an employee to endeavour to

preserve property from damage, especially the proverty of his

employer. The appellant sought to establish that the

evidence showed that the respondent hed wilfully and unreesombly sought to support the weight of the large shed. We do not consider that this is a correct interpretation of the respondent's evidence, What the respondent said is that he "copped the weight" in the sense that quite suddenly he

"eot all the we1ght", He did not say that he deliberately

The respondent was left by the appellant really to use his own discretion in unloading the shed, Necessarily it had to be pushed, pulled and swivelied and its weight eased slightly to get it to the point of balance and beyond, It was so big and awkward that it would not have been easy to judge the precise point of balance and the probability that it would tilt suddenly and catch the respondent when he was pulling or pushing or swivelling or easing so that he would momentarily take the weight was very real. The fact that in their inexperience the respondent and Davis were nushing, pulling and swivelling in an unco~ordinated mainer added to the possibility of the sudden tilt. The possibility of the respondent even sub-consciously thinking it desirable to steady the fall of the shed to save it from damage, misjudging what wes possible or safe to do was a natural incident in such

In relation to the contention that this Court should find

that the respondent was guilty of contributory negligence

we think that in the circumstances of this case passages in

the gudgment of the Court of Appeal in Gallaghor v. Dornan,

Long & Co. Ltd. /1947/ 2 All. ER 38 at p.42 are of assistance.

whether the plaintiff, by his own negligence, caused or contributed to the accident. So far as can be gathered from the evidence, the duty, so far as the crane was concerned, owed by the nlaintiff to the defendants,

was to use the best of his skill and knowledge to estimate the weight of each load and to keep 17

All that the evidence shows is that the plaintiff thought they had a load of only 4 tons, and that the crane toppled over, No deliberate overloading is established by the evidence, and the onus of showing this 1s on the defendants, Whether the accident was due to a mistake of judgment as to the velght of the lift, or to a mistake as to the cépacity ofthe

crane at this redius, was not cleared up. The highest it can be put against the plaintiff and Pearce is thet, by an honest mistake, or inadvertence, they were wrong an ther estimate of the weight of the 11ft, This, in our view, would not constatute a breach of the duty which they owed to their employer. ...

It 1s not every mistake or 1nadvertence that amounts to contributory negligence. If a man exercising his skill and knowledge to the best of his ability nakes

a mistake, particularly, as in this case, in estimating

' "Whet would"be 4 safo lift, it does not, in our view, amount to contributory negligence."

The appellant placed some reliance upon the fact that the respondent nad been unable to state with precision the manner in which the accident occurred. However, in a case of this kind we think that the remarks of Williams and Taylor JJ. in Eamilton v. Nuroof (W.A.) Pty. Ltd.

(supra) at p.29 are in point. Their Honours state:-

"To the medical practitioner who attended him following his admission to hosvital he said that he had 'slipped and it came over his hands and

at is not surprising that he was, and still is, unable to say precisely how it happened and it may not be

of great amportence that there has been some divergence between the accounts given

by him from time to time. It was not, we should think, incumbent upon him to prove the precise lpanner in which the accident occurred if the correct inference from the proved facts 1s that it resulted from negligence for which the respondentswould be liable."

We would therefore confirm the finding of the learned

judge that the respondent suffered his injuries by reeson of the negligence of the appellant and that the respondent was

preceding pares are a true copy,of the Reast s for Juagment herein of 6LoGonours