Supreme Court of SA|1991-09-18|Before: King CJ

O'KEEFE v. AUSTRALIAN TRENCHER COMPANY PTY. LTD. (formerly VERMEER SALES AND SERVICE (AUST.) PTY. LTD. and AUSTRALIAN TELECOMMUNICATIONS COMMISSION No. 658 of 1991 Judgment No. 3017 Number of pages - 11 Negligence (1991) 56 SASR 370 [1991] SASC 3017 (18 September 1991)

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), COX(2) AND DEBELLE(3) JJ

Negligence - appellant injured in course of employment by first respondent - loading trench digging machine on second respondent's truck when lever on chain tensioner sprang back and struck him - equipment and system of work not unsafe - accident caused by negligent positioning of lever - evidence not proving identity of person who positioned lever - allegation in second respondent's defence that lever positioned by second respondent's employee - whether appellant entitled to succeed in reliance upon that pleading

HRNG ADELAIDE, 4 July 1991 #DATE 18:9:1991 Counsel for Appellant: Mr. R. Evans Solicitors for Appellant:
Moran and Partners Counsel for 1st Respondent: Mr. M.I. Bell Solicitors for 1st Respondent: Normans Counsel for 2nd Respondent: Mr. S.D.G. Apps Solicitors for 2nd Respondent: Moloney and Partners

ORDER Appeal against dismissal of action allowed and judgment entered against second respondent.

JUDGE1 KING CJ The appellant has appealed to this Court against a judgment entered by a judge in the District Court of Adelaide dismissing his action for damages for injury sustained in the course of his employment by the first respondent. 2. The appellant, at the relevant time, was employed by the first respondent whose business included the sale of trenching equipment. The appellant was a demonstrator of that equipment. The second respondent, Telecom, arranged with the first respondent for a demonstration to be given of a large trench digger. It was arranged that this demonstration would take place at a worksite some distance from the premises of the first respondent. It was arranged that Telecom would collect the machine and transport it to the worksite. The appellant was to accompany the machine to the worksite and there provide the demonstration. 3. A Telecom employee by the name of McCarthy drove a prime-mover and low-loader to the premises of the first respondent. The trench digger was driven on to the low-loader. It was then necessary to secure the trench digger for the journey. This was done by the use of two or three chains. The method adopted was to place the chains loosely in place and then to tighten them with a device known as a chain tensioner. Both the chains and the chain tensioner were provided by Telecom. 4. The learned trial judge described, in his reasons for judgment, the chain tensioner and its operation as follows: "A chain tensioner has a short length of chain at either end, each of which chains terminates at its outer end in a claw or dog, which can be slipped on to the chain which is to be tightened. The device itself consists of a lever pivoting in a yoke. Attached to

the lever and a short distance from its main pivot point is a further pivot to which one of the short lengths of chain is

attached. The other short length of chain is attached to the bottom of the yoke. When the lever is opened away from the yoke, tension is released. When it is pulled down towards the yoke, tension is applied. The pivot points are so arranged that when in tension, the lever, if fully closed, tends to stay closed and when open it tends to stay open. It is similar in principle to the double action catch on an old fashioned suitcase or tool box. In use, the chain to be tensioned is pulled tight by hand and then the dogs or claws I have mentioned are clipped to the chain as far apart as they will easily go and with the chain tensioner in the open position. By closing the lever on the chain tensioner, the chain being tensioned is pulled up tight. A chain tensioner is a simple device. There is little that can go wrong. However, it can be attached to a chain in such a way that, when pulled down hard, that chain is under great tension. The lever is so arranged as to give a considerable mechanical advantage to a person tensioning a chain. While the lever may only be about one or two feet long, a length of pipe can be slipped over it to increase its length and thereby to increase the mechanical advantage and, hence, the tension able to be achieved. As I have said, the pivots are so placed that, when the lever is in the closed position, tension operates to keep it closed. In the course of pulling down the lever, there is initially resistance as tension is applied. When the pivot points are aligned with the direction of the tension in the chain that resistance ceases. When the lever is moved past that point, tension pulls it to the closed position. While a properly closed lever on a chain in tension should stay closed, some people tie it down with wire, a clip or spare chain." 5. A consulting engineer, Mr. P.J. Maddern, who was called at the trial by the appellant, gave evidence that as long as the lever "is properly home", that is to say properly closed, the device will stay locked so long as there is significant tension in the chain. The lever is secured in some cases with wire, a clip or chain, only because tension in the chain can be reduced during transport. There may, of course, be a defect in the chain tensioner equipment. In the present case there was no suggestion of any defect in the equipment and the transportation of the machine had not begun. 6. It is clear from Mr. Maddern's evidence that if the lever is manipulated beyond a certain point, the forces involved will pull the lever into the closed position. Short of that point, the lever will spring back. There is a point at which the lever would be balanced between the opposing forces. If the lever should be left in that position, it could remain there for a short period of time before springing either way or it could move imperceptibly until forces operate to pull it suddenly in either direction. 7. It was clear on the evidence that the injury to the appellant was caused when the lever on the chain tensioner sprang back. There being no indication that the chain tensioner was other than in good working order and there being no reason to suppose any slackening in the tension on the chain, the only remaining explanation of the accident was that the lever had been left in the position of balance and had sprung back spontaneously. That was the finding of the learned trial judge and there is no reason to doubt its correctness. 8. Paragraph 3 of the appellant's Statement of Claim is as follows: "3. On the 2nd day of December, 1985, the plaintiff was

required, in the course of his employment with the first defendant, to secure the machine into a low loader, using the said chain and the said chain tensioner. After the plaintiff had completed this task, the lever of the chain tensioner suddenly and forcefully released, striking the plaintiff ("the incident")." 9. The particulars of negligence alleged against the first respondent are that it had permitted the appellant to use an unsafe chain tensioner and had failed to instruct him properly in its use. The allegations against the second respondent are to the same effect. The first respondent in its defence denied the allegations in Paragraph 3 and denied the allegations of negligence. There was an allegation of contributory negligence. The second respondent in its defence admitted the allegations in Paragraph 3 but claimed that the appellant was not asked to assist in securing the trencher but did so of his own accord. The second respondent denied negligence and pleaded contributory negligence. At the commencement of the trial, however, the second respondent was granted leave to amend its defence by substituting a new Paragraph 4 for the existing Paragraph 4. The new Paragraph 4 is as follows: "4. Telecom admits the allegations contained in paragraph 2(b) of the Particulars of Claim. On the relevant dates the said trenching machine was carted to Bow Hill by Telecom as a favour to the First Defendant. The Plaintiff was not asked to assist in securing the trencher on the low loader, but did so of his own accord. The Defendant's servant was using a 5 foot length of pipe fitted over the handle of the tensioner in order to achieve the required tension. Because of the size of the trencher the securing chain was at an angle to the perpendicular. The Defendant's servant had removed the pipe from the lever of the tensioner and was going to secure the lever when, apparently, it swung upwards. Further,

the chain tensioner was in perfect working order upon the date and the accident was solely due to the Plaintiff's own negligence." 10. The Defendant's servant referred to in the new paragraph is McCarthy. 11. In consequence of that amendment, the appellant filed a reply which included the following plea: "2. In the alternative to the plaintiff's plea in paragraph 3 of the Particulars of Claim, if the incident did not occur in the manner pleaded therein but rather in the manner pleaded by the second defendant in paragraph 4 of its Amended Defence, namely that the second defendant's servant tightened the tensioner using a five foot length of pipe and was going to secure the lever when the tensioner swung upwards striking the plaintiff in the face then the plaintiff says that the incident resulted in the negligence and breach of contract and breach of statutory duty of the first defendant and the negligence of the second defendant." 12. I think that this alternative basis of claim was a departure from the claim as pleaded in the Particulars of Claim and ought therefore to have been pleaded by way of amendment to the Particulars of Claim and not by way of reply. See Local Court Rule 67.11; Herbert and Another v. Vaughan and Others 1972 3 All ER 122. The pleading of one claim in the Statement of Claim does not preclude, however, the raising of an alternative inconsistent claim at a later date and there can be no doubt that the amendment would have been granted if sought. Barclays Bank Limited v. Thomas 1979 2 Lloyds Report 505. No objection was made to the raising of the alternative claim in the reply and the parties must therefore be treated as having fought the case on the basis that the Particulars of Claim had been appropriately amended. Bagnell v. National Tobacco Corporation Ltd. [1934] NSWStRp 30; (1934) 34 SR (NSW) 421; Miller v. Cameron and Others [1936] HCA 13; (1936) 54 CLR 572 per Latham CJ at 577; Leotta v. Public Transport Commission (1976) 50 ALJR 666. 13. The appellant's evidence about the incident was vague. He said that the trench digger was driven onto the low-loader by either himself or Mr. Geddes the Managing Director of the company. Mr. Geddes was present throughout the incident. The appellant said that he thought that three chains were used to secure the machine. He had never used a chain tensioner before but had seen them used. He said that on this occasion a length of piping was placed on the lever to give additional leverage and that he helped pull the lever down on one of the chains. He did not know whether it was the chain to which tension was being applied when the accident occurred. He described the accident as follows: "Well, when we loaded the machine on to the low loader from Telecom we had to secure it down with chains because it was too heavy and too big. A rope was no good, and all I can recall is helping the driver load it and walking around the machine to check to see that everything was on and tightened and then I come across a bit of pipe on the ground that would be used on the levers to tension it. I picked that pipe up to put back on the low loader and that's when the lever hit me at that time, about all I can remember." 14. McCarthy was involved in the process but the appellant was unable to say whether he applied the tension on the occasion when the lever sprang back. 15. A fellow worker, Mr. Scroop, gave evidence that he saw the appellant assisting with the chains. He did not see the incident, however, nor apparently the chain tensioning operation which led to it. Neither respondent called evidence. 16. The appellant's primary case against both respondents was that he was permitted to operate the chain tensioner without proper instructions. That case could not succeed unless it could be proved that the appellant operated or assisted to operate the chain tensioner on the occasion when the lever sprang back. The learned trial judge held that the evidence did not enable him to say whether the appellant or McCarthy operated the chain tensioner on that occasion and that the appellant had therefore not proved that his use of the chain tensioner was a cause of the accident. I think that that conclusion on the evidence was inevitable. The appellant did not know, and there was no other evidence. 17. The appellant further alleged against both respondents that the method used to secure the chain tensioner was unsafe and that there was therefore an unsafe system of work for which both were responsible. The defect in the system was said to be the failure to provide for the tying down of the lever in the closed position. I have already referred to Mr. Maddern's evidence on the point. Whatever arguments might have been raised if the lever had been dislodged and slackening of the chain had occurred while the equipment was being transported, there is nothing in Mr. Maddern's evidence to indicate the need for tying down the lever while the vehicle was stationary. A Mr. Cox, a witness with experience in the transport industry, gave evidence of a common practice of clipping the lever down with a piece of metal or chain. There is nothing in his evidence, however, to indicate why that should be necessary if the lever is properly placed to close the tensioner. 18. The learned trial judge's conclusions on this point are stated in his reasons for judgment as follows: "The next precaution that might have been taken is that the practice of tying down a closed lever, with wire, chain, or a clip, could have been adopted. The evidence satisfies me that this is a practice adopted by some users of chain tensioners and that it is an easy, practical, practice to adopt. However, it is also apparent on the evidence that the practice is by no means universally adopted. Given the fact that the geometry of the device is such that tension will keep a closed lever closed, it would seem to be a practice of no particular merit in the case of a properly closed tensioner in sound condition. It is probably of most use in that it would, I presume, be likely to direct one's attention to an incorrectly closed lever when one was tying it down. The evidence does not satisfy me that the desirability of tying down the lever is so generally accepted or regarded as desirable that I can hold anyone, particularly McCarthy, negligent for failing to adopt it." 19. I think that the learned judge's reasoning on this point is persuasive. I do not think reasonable care for the safety of persons using the chain tensioner or working near it required that there be a practice of tying down the lever. Properly closed by means of the lever it was quite safe. 20. The alternative basis of claim raised in the reply seeks to establish an act of negligence by McCarthy in failing to close the lever properly. This requires a finding that it was McCarthy who operated the chain tensioner on the relevant occasion. This plea is, of course, inconsistent with the principal case pleaded by the appellant but the pleading of an inconsistent alternative claim is authorised by Local Court Rule 67.11; Barclays Bank Limited v. Thomas 1979 2 Lloyds Reports 505. The problem faced by the appellant is that the evidence did not prove that it was McCarthy who positioned the lever on the relevant occasion. With regard to the second respondent, however, the appellant relies upon the pleadings and in particular the averment in the amended Paragraph 4 of the defence that McCarthy manipulated the lever into the position from which it flew back. There is, of course, no such averment on the pleadings by the first respondent and it is unaffected by the argument presently under consideration. 21. Counsel for the second respondent argued that it would not be right to treat the averment referred to above as an admission made on behalf of the second respondent upon which the court should act. He placed reliance upon a passage in the judgment which I delivered on behalf of the Full Court in Pearce v. Hall [1989] SASC 1874; (1989) 52 SASR 568 at 572-3. In that case, the court was considering the effect of the new Rule 88A of the Local Court Rules which requires particulars of damage verified on oath, upon grant of leave to administer interrogatories. In the course of the reasoning, the contrast between the effect of allegations in pleadings and statements in answers to interrogatories was referred to. The evidentiary function of answers to interrogatories was contrasted with the role of unsworn pleadings, which do not vouch for the truth of what is alleged but whose purpose and function are to define and narrow the issues to be resolved at trial. Because a party, in the case of unsworn pleadings, does not vouch for the truth or accuracy of what is alleged, statements in the pleadings do not affect the party's credibility; they cannot be used against him in other proceedings; they may be withdrawn or modified by permitted amendments to the pleadings. They differ from answers to interrogatories in all those respects. 22. Although making the distinction between the evidentiary character of answers to interrogatories and the quite different character of statements in the pleadings, the Court did not convey, and did not intend to convey, that a party was not bound by statements in his pleadings in the proceedings of which those pleadings form part. The binding character of statements made by a party in its pleadings is essential to the role of pleadings in defining the issues for trial and relieving the opposing party of the necessity of proving the facts alleged by the first mentioned party in its pleadings. 23. The principle is stated in Wigmore on Evidence Volume 4 Paragraph 1064 as follows: "1064. (2) Common law pleadings in the same cause, as judicial admissions. (1) The pleadings in a cause are, for the purposes of use in that suit, not mere ordinary admissions (1057 supra), but judicial admissions (2588 infra); i.e., they are not a means of evidence, but a waiver of all controversy (so far as the opponent may desire to take advantage of them) and therefore a limitation of the issues. Neither party may dispute beyond these limits. Thus, any reference that may be made to them, where the one party desires to avail himself of the other's pleading, is not a process of using evidence, but an invocation of the right to confine the issues and to insist on treating as established the facts admitted in the pleadings. 24. This much being generally conceded, it follows that a party may at any and all times invoke the language of his opponents' pleading on that particular issue as rendering certain facts indisputable; and that, in doing this, he is on the one hand neither required nor allowed to offer the pleading in evidence in the ordinary manner, nor on the other hand forbidden to comment in argument without having made a formal offer; for he is merely advocating a construction of the infrajudicial act of waiver of proof". 25. The rule that the party is bound by statements of fact in his pleadings is not applied by the courts so rigidly, however, as to defeat the interests of justice. Some degree of flexibility is required where there is a disconformity between facts as pleaded and the evidence. This is particularly so under the modern rules which require a party to plead a version of the facts. Often, moreover, the course of the trial and the parties' conduct at trial will indicate that they are not insisting upon the pleadings. Parties may be prepared to allow the trial to proceed upon the basis that any necessary amendments have been made and there may be no controversy as to the form of the pleadings. 26. None of the above considerations appear to me, however, to apply to the present case. The statement in the amended defence to the effect that McCarthy positioned the lever on the relevant occasion was made deliberately by amendment and there was no attempt to amend the pleading to withdraw that statement. The facts were within the knowledge of McCarthy who was the second respondent's employee. He was not called as a witness and no explanation was advanced as to failure to call him. When the alternative claim was allowed to be raised in the reply without objection, the state of the pleadings appeared to me to be substantially thus. The appellant was to be treated as having raised the alternative claim in his Particulars of Claim. The second respondent by its defence was to be treated as having admitted that McCarthy positioned the lever. That was an admission of a material fact by the second respondent and it was bound by that admission. 27. The appellant's primary allegation that he operated the lever having failed for lack of proof, he was entitled to rely upon his alternative claim based upon McCarthy's negligence in failing to locate the lever in the closed position. In pursuing that alternative claim, the appellant was not required to prove that McCarthy positioned the lever because that was admitted by the second respondent on the pleadings. 28. The learned trial judge was correct, in my opinion, in his conclusion on the evidence that the identity of the person who positioned the lever was not established, but I think that he failed to give proper weight to the binding admission which had been made by the second respondent in his defence identifying McCarthy as that person. 29. I think that it was reasonably foreseeable by McCarthy that failure to position the lever safely in the closed position might result in it springing back and causing injury to the appellant who was working with him in the vicinity. McCarthy therefore owed a duty to the appellant to exercise reasonable care in closing the chain tensioner. Failing to close the tensioner properly and leaving the lever in the balance position which enabled it to spring back was, in my opinion, clearly a breach of that duty. 30. I consider therefore that there should have been a finding as against the second respondent that McCarthy was guilty of negligence for which the second respondent was vicariously liable as his employer. 31. The learned trial judge although dismissing the appellant's action, proceeded to assess damages in case of appeal. He dealt with the question of damages as follows: "In case I am wrong, I proceed to assess damages. This was a nasty blow from a steel lever. It evidently forced the plaintiff's lower lip up against his upper denture. The lip was badly split. The upper denture was broken. The plaintiff required a number of stitches to his lip, the laceration being closed in progressive stages. He was very shocked by the incident. He lost a certain amount of blood. I am sure it was very painful. He was away from work for a few weeks. Since his return to work, his injury has presented no problem with regard to his work and he, specifically, seeks no award in respect of economic loss. His wages during absence from work were paid pursuant to the provisions of the Workers Compensation Act, as were his medical expenses. The long term result of his injury has been a scar something over an inch long in and below his lip. It is of fairly good colour and contour, but is readily visible. It should not be there, but it is certainly not grossly disfiguring. There is still some lumpiness inside the lip, which feels odd and this has some nuisance value. There is a slight loss of control of the lower lip in its finer movements. The plaintiff complains that, at times this causes him to slur his words a bit. It is particularly noticeable when he is tired or nervous. His wife confirmed this. He agreed that he was nervous in court, but that produced no slurring that I could detect, as he gave evidence. Accepting that it may be worse at some other times, it does not appear to be a major problem. After this length of time, it is not likely to get much better. I would assess general damages for past and future pain and suffering in the sum of $4,500." 32. I have read the evidence bearing upon the question of damages and we inspected the appellant's scar during the hearing of the appeal. It is not a disfiguring scar. Despite some evidence as to the slurring of speech the learned judge detected none while the appellant was giving evidence. I think that the injury and scarring do not call for a large amount of damages. One of the grounds of appeal was that the amount assessed was too low, but I think that the assessment was reasonable. 33. A further ground of appeal was that compensation should have been awarded under the Workers Compensation Act against the first respondent but that ground was not pursued before us. 34. In my opinion, for the above reasons, the appeal against the first respondent should be dismissed. The appeal against the second respondent should be allowed and there should be judgment against that respondent in the sum of $4,500. 35. I would hear the parties as to costs.

JUDGE2 COX J I agree with the orders proposed by the Chief Justice and I am in general agreement with his Honour's reasons. However, I should prefer to leave to another day the general pleading questions with which he deals. The matter has become complicated, of course, by the modern requirement that a defendant, and not just a plaintiff, must plead his version of the facts. I would decide the present case on the narrow and quite unusual ground that the plaintiff's reply, however belated, really amounted to an alternative plea in negligence against the second defendant, the factual basis of which the second defendant had already admitted, in anticipation as it were, in its defence. It was as though the plaintiff had alleged those facts in the first place and the second defendant had then admitted them but claimed, erroneously as it turned out, that they did not establish the plaintiff's cause of action.

JUDGE3 DEBELLE J The facts have been stated by the Chief Justice and need not be recited. I agree that there should have been a finding that McCarthy was guilty of negligence for which the second respondent, as his employer, was responsible and that the assessment of damages made by the trial judge was reasonable. 2. I agree with the Chief Justice that the course of the pleadings has the result that the second respondent is to be regarded as having admitted that McCarthy closed the lever to tighten the chain tensioner. But, in my view, this is not a consequence of the fact that pleadings constitute an admission: it is a consequence of the fact that the appellant has admitted the version of the facts as pleaded by the second respondent as an alternative basis for the remedy he sought. To all intents and purposes, the state of the pleadings in this case was the same as if the appellant had pleaded two alternative bases in fact for his claim and the second respondent had admitted one of those alternatives. The second respondent would be bound by his admission, even if the trial proceeded on the alternative pleas. If the appellant could not establish the first alternative, he could rely on the second alternative admitted by the second respondent. 3. The traditional view is that assertions made in pleadings do not constitute admissions: Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Mason CJ and Brennan J at 85 and the cases there cited: see also Pearce v. Hall [1989] SASC 1874; (1989) 52 SASR 568, 573. Although it has been suggested that the traditional view may be too strict and that in some circumstances an assertion in a pleading should be received as an admission: Austin v. Austin [1905] VicLawRp 85; (1905) VLR 564, 566-567; Kleeners Pty Ltd v. Lee Tim (1961) 78 WN(NSW) 746, 747-748 and Singleton v. John Fairfax and Sons Ltd (1982) 2 NSWLR 38, 51, the traditional view appears to prevail: Stohl Aviation v. Electrum Finance Pty Ltd (1984) 56 ALR 716; Laws v. Australian Broadcasting Tribunal (supra). This view is consistent with the function and object of pleadings, when they are not required to be verified, namely, that they outline the party's case and define the issues to be tried. They are the statement of the case to be admitted or denied by the opposite side and, if denied, to be proved and ultimately submitted for judicial decision: Parke B in Boileau v. Rutlin [1848] EngR 661; (1848) 2 Ex 665, 680-681; [1848] EngR 661; 154 ER 657, 663. The nature of averments contained in a defence was dealt with by Mason CJ and Brennan J in Laws v. Australian Broadcasting Tribunal (supra) at 86 in these terms: "Especially is this so in the case of pleading defences. A defendant is entitled to put a plaintiff to proof of his or her cause of action and to raise alternative matters of defence which may possibly answer the plaintiff's claim, without asserting in an absolute sense the truth or correctness of the particular matters pleaded. Accordingly, we do not regard the defences filed by the Tribunal as constituting admissions on the part of the Tribunal or, for that matter, on the part of its individual members." 4. The Rules of the District court do not contain any provision which would suggest a departure from the traditional view. Because the appellant has admitted the facts as averred by the second respondent, the question whether assertions contained in pleadings required any and, if so what, reconsideration need not be examined in this appeal. 5. As the Chief Justice has noted, the alternative basis of the appellant's claim ought to have been pleaded by way of amendment to the Particulars of Claim. However, no doubt because of the exigencies of the trial, the parties were content to proceed on the basis of the alternative claim. The amended defence and the replies came to be filed in the following way. The trial began on 23 January 1991. At the outset, the second respondent applied to amend his defence. Leave was granted. The trial then proceeded on the basis of the pleadings as they then stood. The respondent had not then filed any reply. Evidence was completed on 23 January and counsel began their addresses. On the morning of 24 January, counsel for the appellant applied to file replies to the defences of each of the first and second respondent. Counsel for the first and second respondent at first opposed the application but later informed the Court they had no objection to it. Leave to file the amended reply was granted on 24 January 1991. In the event, the reply was not filed until after close of the evidence and after counsel had begun their address. 6. I am a little troubled that the application to amend the reply was not made until after the evidence had closed and counsel had begun their addresses. The course of pleadings would suggest, that the trial was conducted on the footing that there were two conflicting versions of the facts, the appellant not admitting the version of the facts pleaded by the second respondent until after the respondent had closed their case without calling any witnesses. Pleadings are not to be used as a weapon of oppression. The object of pleadings is not to defeat but to advance the ends of justice. They should not be used to destroy but to protect the substantial rights of the parties. Where a trial has been conducted on the basis of the pleadings as filed and parties have closed their cases and counsel are addressing the court, generally speaking, an amendment would not be allowed. However, counsel for both respondents did not object to the application to amend. Nor did counsel for the second respondent either amend or withdraw the amended version of his defence: see Hollis v. Burton (1892) 3 Ch 226, where it was held that in a proper case a party who has made an admission by mistake will be allowed to recall it. Furthermore, the second respondent had deliberately amended its defence to advance a version of the facts which he did not apply to either amend or withdraw. In all the circumstances, the second respondent must be bound by the terms of its amendment. 7. For these reasons I agree with the orders proposed by the Chief Justice. 8. The trial judge found: "It is apparent to me, and I find, that the lever flew up because it was not fully pulled down to the closed position. I speculate that the pipe extension may either have prevented the lever being pulled down fully or may have masked the fact that it was not fully pulled down - but neither of those possibilities is proved. In my view it would be negligent for anyone with any understanding of the operation of the tensioner to have failed to close the lever correctly in the circumstances of this case. The evidence suggests, and I find, that McCarthy had experience in the use of tensioners. If I could find that he failed to pull the lever down properly, I would find him negligent - and, accordingly, find Telecom vicariously liable." 9. Having admitted that McCarthy was the person who operated the chain tensioner, the second respondent is on the basis of the findings of the trial judge vicariously liable for the negligence of McCarthy in failing to close the lever correctly. I agree with the Chief Justice that it was reasonably foreseeable by McCarthy that failure to position the lever safely in the closed position might result in it springing back and causing injury to the appellant who was working with him in the vicinity. As the Chief Justice has said, McCarthy owed a duty to the appellant to exercise reasonable care in closing the chain tensioner. Failing to close it properly and leaving the lever in the balance position which enabled it to spring back was a breach of that duty. For these reasons there should have been a finding that McCarthy was guilty of negligence for which the second respondent was vicariously liable as his employer. 10. I agree that the assessment of damages made by the trial judge was reasonable. 11. I agree with the orders proposed by the Chief Justice.

O'KEEFE v. AUSTRALIAN TRENCHER COMPANY PTY. LTD. (formerly VERMEER SALES AND SERVICE (AUST.) PTY. LTD. and AUSTRALIAN TELECOMMUNICATIONS COMMISSION No. 658 of 1991 Judgment No. 3017 Number of pages - 11 Negligence (1991) 56 SASR 370 [1991] SASC 3017 (18 September 1991)

At a glance

Court

Decision date

Before

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Judgment (12 paragraphs)

O'KEEFE v. AUSTRALIAN TRENCHER COMPANY PTY. LTD. (formerly VERMEER SALES AND SERVICE (AUST.) PTY. LTD. and AUSTRALIAN TELECOMMUNICATIONS COMMISSION No. 658 of 1991 Judgment No. 3017 Number of pages - 11 Negligence (1991) 56 SASR 370 [1991] SASC 3017 (18 September 1991)

Cases Cited (7)