Counsel for appellant: Mr D J Bleby QC with

Solicitors for appellant: Proud and Company

Solicitors for respondent Zerk: Ivan Margitich

Counsel for respondent Finemores: Mr G L Muecke

Solicitors for respondent Finemores: Norman Waterhouse

JUDGE1 OLSSON J These proceedings commenced as an appeal by one of two defendants to an action in which a plaintiff sued for damages for negligence in relation to serious personal injuries sustained by him as a consequence of an accident which occurred on 28 October 1986. For the sake of simplicity I will refer to the appellant as "Pilkington", the respondent/plaintiff as "Zerk" and the second respondent as "Finemores".

The initial appeal was by Pilkington against a finding of liability, on its part, to Zerk. Leave was subsequently given to Zerk to cross appeal against a dismissal by the learned trial judge of his claim against Finemores. On the hearing of those appeals this court granted Finemores leave to cross appeal against Zerk, so as to enable it to allege contributory negligence on his part.

As at the above date ("the accident date") Zerk was a married man aged almost 43 years. He had lived in Port Lincoln all of his life and had been employed by Finemores as a heavy vehicle driver for ten years. He was highly regarded by his employer.

On the accident date, in the course of his duties, Zerk drove a semi trailer into Pilkington's Royal Park premises to pick up a load of crated glass. Having set up the first elements of a "cradle" frame structure on the tray of the trailer, to support the crates, Zerk arranged for two storeman employed by Pilkington to commence loading the first (and largest) of several crates. This weighed about two tonnes and its dimensions were about eight feet, by seven feet, by one foot. This was intended to be loaded against the first of what, eventually, was to be two upright steel members secured to a lateral cross member, designed to hold the crates firmly in a vertical position. The second upright was to be installed when the last crate had been loaded, at which time both uprights would be adjusted inward to hold the load firm.

The first crate was slung to an overhead crane operated by a storeman named Folino, who was regarded by the learned trial judge as being, in many respects, a somewhat unreliable witness. By that means, it was lifted up on to the tray of the truck and manoeuvred into a position whereby it was resting on its narrow base, close to the frame. It seems to have been common ground that it was picked up from a location out to the east, that is, out from the driver's side of the truck, carried around the rear of it and then loaded on from the nearside. This is so despite the statement of the learned trial judge that he did not accept Folino's evidence as to his actions prior to and after the deposit of the crate on the track. (The learned trial judge found that the crate, when lowered, was, in fact, leaning on one edge against the frame, but the propriety of that finding was challenged by Pilkington on its appeal.)

When this had been done, but whilst it was still slung to the crane (with the slings slack), Zerk jumped up and down on the tray to wobble the trailer. He also looked from the cabin end of it to satisfy himself that the crate was stable in its then position. Another storeman, Francis (now deceased), in a statement signed by him and tendered at trial, said that he also looked from the rear end of the tray, to see that the crate was leaning in a stable position.

When Zerk was satisfied as to the apparent stability of the crate he indicated that fact to Folino. The latter deposed that he then asked whether Zerk desired to have props (placed against the side of the crate and wedged against the coaming rail of the trailer) to keep the crate in position. According to him, the plaintiff responded in the negative. Francis was silent in his statement as to that aspect. Zerk deposed that he had no memory of props being mentioned. On the transcript it is not entirely clear whether he simply had no memory at all or actually denied that the offer was made.

I digress at this point to recite that the evidence indicated that there were four recognised methods of temporarily securing such a load - each of which was appropriate to prevent it from becoming unstable. The first was the use of props of the type referred to by Folino (which were the property of Pilkington), the second was the use of wedges under the base of the crate to maintain it in a position leaning against a securing frame. The third was the use of ropes to tie the crate to the securing frame on the trailer. The fourth was to ensure that the crate was leaning at such an angle against the frame as to be inherently stable. The learned trial judge found that the system used was essentially a question of the driver's preference; and that a refusal by Zerk of Folino's offer at that stage was not negligent.

Zerk undid the two slings by pulling them clear, off the ends of the crate, so that they hung down together from the crane on the driver's side of the crate, whereupon Folino, using a remote control unit held in his hand, at once began to move the crane, with the slings attached, with the aim of picking up the second crate. The manner in which he did so was the subject of considerable debate. Both Zerk and Francis were silent on this aspect and seemed not to have focused on Folino's actions at the time. Folino was adamant that he traversed the overhead crane along its rail in the reverse direction to that employed in the loading operation. If that was correct then the slings would have been dragged across the top of the crate from the offside towards the nearside of the truck.

As Folino began to operate the crane (and virtually as soon as the slings had been disengaged) Zerk saw the crate slowly beginning to topple over, away from the supporting frame and towards the nearside of the trailer. On the evidence it seems a moot point whether, at the time, he was moving along the tray of the trailer in front of the crate towards the front of the vehicle. At any event it is clear that, for whatever reason, he actually moved along the front of the crate and tried to steady it and push it back. However, due to its weight, he was unsuccessful in doing so and, before he could extricate himself, the crate crashed down and pinned the lower part of his body to the trailer frame.

When the crate was levered back off him Zerk was found to have sustained a fracture to his right leg and other injuries. He was evacuated to hospital. In making his findings of fact the learned trial judge relied on the plaintiff and also the statement made by Francis to an assessor. Because Francis is now deceased his statement needs to be viewed in the context that it has not been tested by cross examination.

The statement made by Francis described the events immediately leading up to the accident in these terms:- "The crate was put down close to the post, that is why they have a bit of a lean on the post. I thought it had a good lean on it and Peter said it looked as if it was leaning his end. The crane had been brought down slowly and the crate leaned as the weight went off the slings. ... Then the slings came down. Peter took the sling off his end and then walked along the crate to the back end. I think he climbed up on the gate a bit to get the second sling off. He did that and the crate started to drift over very slowly away from the poles. Peter tried to hold it up but he couldn't stop it. Not even seconds later he tried to get out from under the crate as it was falling. About all he had time for was to turn around and the crate hit him in the back and he went down and the crate fell onto his foot and half the bottom of his leg and trapped him lying over the side of the truck."

It is to be noted that such statement is in direct conflict with the sworn evidence of Zerk, who deposed that, at all material times, the crate was standing vertical, adjacent to the securing frame, on its narrow edge. This is so notwithstanding the fact that, on 31 October 1986, he signed a worker's compensation claim form which, inter alia, said that the crate "was rested against a transporting frame".

The learned trial judge pointed out that there was no direct evidence before him as to what caused the crate to topple over. He expressed himself as satisfied on the evidence that, when Zerk released the slings, not only was the crate leaning sufficiently against the securing frame to be stable, but that it was, at that point, safe to remove the slings. He concluded that the only reasonable inference arising on the evidence was that, as Folino was manoeuvring the crane to pick up the next crate, the slings must, somehow, have dragged or brushed over the crate "taking it sufficiently with them to disturb the lean. It was pulled upright and then to lean sufficiently the other way, to the west, to cause it to begin to topple". He commented that that could only have happened through some error on the part of Folino, such as pushing the wrong button on the crane remote control mechanism or misapprehending where Zerk had thrown the slings, when they had been detached. He therefore found Pilkington vicariously liable for Folino's negligent acts.

On the other hand he rejected any suggestion of negligence on the part of Finemores. He dismissed the argument that the employer had failed to provide a safe system of work and had not given Zerk appropriate instructions.

The learned trial judge accepted that no specific instructions had ever been given to Zerk, but stressed that Zerk was a mature man and an experienced, skilful driver, who had made a number of similar pick ups from Pilkington on previous occasions. He considered that the system was safe - and that the problem had been Folino. It was not reasonable, he thought, to expect Finemores to take any particular action to instruct Zerk as an experienced employee - he was "not a kindergarten child".

In the course of his reasons the learned trial judge also summarily rejected the proposition that Zerk had been guilty of contributory negligence. As to this, he said:- "The plaintiff was not negligent in not using props. He had satisfied himself that there was sufficient lean on the crate to make it stable. He was entitled to rely on that method, simply leaning the crate against the frames, as a safe one. He was not negligent in this regard. The second respect in which, the defendants argued, the plaintiff was negligent, was that he should, when he saw the crate toppling, have immediately got out of the way: it was foolish of him to have tried to push back so heavy a load - there was no hope he could succeed: if he had moved smartly he could have been safe. Perhaps so - but I think this was very much an agony of the moment situation and the plaintiff should not be blamed for having done the wrong thing - the wrong thing, that is, as we may see it in safe and comfortable hindsight. The plaintiff was not guilty of negligence."

The appeals in this matter are limited to the issue of liability. Accordingly, there is no requirement to address those aspects of the reasons for decision which bear upon the question of assessment of damages.

It is asserted by Pilkington that there was no proper basis of evidence for any finding of negligence on its part, that there was positive evidence of negligence on the part of Finemores in relation to a failure to instruct Zerk, and that Zerk had been guilty of substantial contributory negligence. By his cross appeal Zerk also asserted that Finemores ought to have been found guilty of negligence. He denied contributory negligence on his part and contended that judgment had properly been entered against Pilkington.

In reviewing the issues ventilated on this appeal, there is one preliminary point which must be made at the outset. This was a classic case in which, even given the primary facts found by the learned trial judge (which were, of course, in part a reflection of his conclusions as to the relative credibility of Zerk and Folino), the ultimate assessment to be made was as to what inferences naturally and fairly arose on the basis of those facts and how the actions (or lack of them) of the relevant parties ought properly to have been characterised.

As the Court of Appeal said in Coghlan v Cumberland (1898) 1 Ch 704 at 704-5 and was approved by the High Court in Devries and Anor v Australian National Railways and Anor [1993] HCA 78; (1993) 112 ALR 641 at 647:- "Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must consider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but

carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong."

So it was that, in Patterson v McGinlay (1991) 55 SASR 258 at 265, I commented:- "On the other hand, the question of what inferences ought fairly to be drawn from the evidence of truthful witnesses stands on a somewhat different basis. As the Full Court pointed out in Raimondo v South Australia (1978) 19 SASR 141 at 156: '... It seems to us that where the result arrived at depends not on a view taken of conflicting testimony, but

on inferences to be drawn from facts as to which there can be no controversy, it is competent for an appellate court to

come to an opposite conclusion from that reached by the trial judge. In this connection, we cite the words of Lord Halsbury in Montgomerie and Co v Wallace-James (1904) AC 73 at 75: "Where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in the way that no appellate tribunal can have. But where no question arises as to truthfulness, and where the question is as to the proper inferences to be drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court."

We also refer to a passage in the joint judgment of Isaacs and Rich JJ in London Bank of Australia Ltd v Kendall [1920] HCA 53; (1920) 28 CLR 401 at 407-409.'

In large measure that is the situation which here arises. True it is that the learned trial judge found it necessary to determine the relative reliability of certain participants and eye witnesses; nevertheless, in the final

analysis, his ultimate decision substantially turned upon the inferences to be drawn from the facts accepted as proved, bearing in mind the calculations and expert evidence of the witness Aust, who he saw no reason to reject."

Added complications in the instant case are, however, that it is argued that the learned trial judge made one important primary finding of fact which was not in conformity with the evidence; and it is also evident that his rejection of certain of Folino's evidence is expressed in terms which are conceded to be too sweeping.

The essential primary thrust of the Pilkington appeal was to challenge the fundamental inference drawn by the learned trial judge to the effect that the destabilization of the crate resulted from some act on the part of Folino. As to this, counsel for Pilkington advanced two separate prongs of argument.

First, he contended, the finding that the crate was leaning against the vertical beams of the support frame, when the slings were released, was in discord with the evidence.

He stressed that the only positive evidence to that effect emanated from the untested Francis statement, which, in any event, fell to be contrasted with Zerk's own evidence on oath that the crate was standing, unsupported, on its narrow edge. Moreover, the very occurrence of the accident, he declaimed, cogently indicated that it was, at all relevant times, in an unstable position.

Secondly, he submitted, there was no logical basis for the inference drawn by the learned trial judge to the effect that, somehow, the movement of the crane by Folino, with the slings attached to it, destabilised the crate. It was argued that Zerk himself deposed that, having undone the slings, he threw them off to the east. It was contended that they were drawn away in that direction, whereas the crate fell to the west. There was, it was argued, no evidence at all to suggest that, once that had been done, the slings in any way again came, or could have come, into contact with the crate. The finding made was - it was submitted - no more than conjecture.

In short it was put on behalf of Pilkington that the only reasonable conclusion to be drawn was that the crate was at all times unstable when it was lowered onto the trailer; and that it began to fall as soon as the slings were released. On such a basis, it was contended, there was simply no ground whatsoever for holding that Folino had been negligent or that Pilkington was liable for his actions - this was, it was put - the more so as Folino had offered the use of props and Zerk had refused that offer, in a situation in which the risks must have been obvious to him.

In examining these contentions it must be remembered that the learned trial judge was faced with several difficulties.

The first was that Zerk had sustained a stroke in the course of operative treatment following the accident. It was therefore uncertain as to how this may have affected his recollection. The second was that the Francis statement, which was actually tendered by Pilkington, was untested by cross-examination - although it was not made under pressure and was expressed in clear and unequivocal terms, insofar as it described relevant facts. The third was that Folino, who did not make a good impression on the learned trial judge, deposed to a version of events which, in part, was not rendered support by Francis; and he was never invited to describe exactly how the crate was positioned on the securing frame once the tension had been released from the slings.

The learned trial judge described Folino as an unreliable witness and went on to say that:- "My impression was that he resented being questioned at all, that after so long his memory was poor and that he was anxious to justify his actions. The only part of his evidence which I prefer to that of the plaintiff relates to the offer of the props: despite the plaintiff's denials I believe he was offered the use of the props, an offer which he refused. I do not accept Folino's account of his movements when manoeuvring the crate into position and afterwards."

There are two comments which must be made concerning those conclusions. The first is that I do not take him, necessarily, to reject all of Folino's evidence. In essence he was indicating his preference for the evidence given by Zerk, where the two narratives conflicted. Be that as it may, the last sentence cannot be accepted at face value. As earlier stated, it was common ground that Folino's evidence as to how the crate was initially moved on to the trailer must, substantially, have been correct. His evidence as to what he thereafter did was not necessarily in conflict with that of Zerk or Francis and provides a cogent (and, on the face of the evidence, the only logical) basis for the ultimate finding of the learned trial judge as to how the crate was probably precipitated over onto Zerk. On Folino's evidence the slings would have been dragged across the top of the crate in a manner which could well have destabilized it.

The second is that it clearly remained open to the learned trial judge to conclude, as he did, that the description given by Francis, as an objective, independent party, should be preferred to the narrative of Zerk, given the medical background of the latter and what the learned trial judge felt was the more likely scenario, in the whole atmosphere of the trial, including the somewhat literal statement by Francis to the effect that the crate commenced to fall more or less as soon as the slings had been released. When one reads the detailed statement given by Francis it projects as a convincing likely scenario - one which ought to be accorded due weight unless there was some cogent indication of falsehood on his part. That was never suggested.

In the foregoing circumstances, and whilst there are some logical difficulties (if not inconsistencies) with certain expressions employed by the learned trial judge, I remain unconvinced that his finding of negligence against Pilkington was inappropriate, or in discord with the obvious thrust of the evidence.

Both Pilkington and Zerk contended that the learned trial judge fell into error in not finding Finemores guilty of negligence. In this regard the basic submissions made were:- - it was undisputed that Zerk had never received any instruction as to how to load glass or crates of the nature of that involved in the accident; and that he had merely relied on his own prior experience, based on half a dozen previous visits to load crates of glass. - he had never, on any occasion, used any of the obvious aids available, without the use of which a load of the type in question was, or could readily become, potentially unstable and inherently unsafe. At best Zerk had merely jumped up and down on the trailer to test crate stability. - Finemores owed a continuing, non delegable duty of care to Zerk in devising a safe system of work and - equally importantly - also in ensuring that it was implemented. It had failed to do so. The securing cradle frame had been provided in response to an accident which had occurred some years ago, yet no instructions had ever been given as to its proper use, or the loading technique to be employed in relation to it. Mr Meucke, of counsel for Finemores, somewhat faintly argued that there had not been any evidence of a lack of instruction; and that no onus had rested on his client of proving that due instructions had been given.

In this regard that head of negligence was expressly pleaded in Zerk's statement of claim. It was supported by Zerk's evidence (AB 26) to the effect that he had been issued with the securing frame, but never given any relevant instructions as to how it was to be used. Even given Mr Meucke's contention that this evidence was possibly ambiguous in its context, the plain fact was that Zerk was never cross examined on this topic and no evidence was ever led to suggest either that any positive instructions had been issued or, equally importantly, that any steps had ever been taken to ensure that a safe system of work was in fact implemented and overseen.

As was stressed by the High Court in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, an employer's duty is to provide his employees with a safe system of work and that duty is non-delegable. Moreover, as was further pointed out in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, the duty of an employer to take reasonable care to avoid exposing his employee to an unnecessary risk of injury carries with it a requirement to have regard to the specific risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task.

In my view the loading of crates of the nature of that in question in this case was an inherently dangerous task, which carried with it a serious risk of accident, if proper, safe systems of work were not implemented. It was not enough merely to issue the cradle frame for use without any specific training in its use and then leave it to the supposed experience of the driver (or to Pilkington employees) to point out the correct technique to be adopted. The fact that Zerk had apparently loaded other crates on some previous occasions in a like manner without mishap proves no more than that he was fortunate on those occasions. It by no means establishes that he was truly aware of the inherent risks, or the need to use some appropriate safety devices to guard against the types of misadventure which could occur.

With all due respect the summation of the learned trial judge on this aspect of the case is contrary to authority and cannot be accepted. Unlike the situation in Raimondo v State of South Australia (1979) 23 ALR 513, this could scarcely be said to have been a situation in which competent and suitably experienced tradesmen were performing a simple and uncomplicated task, in which the risks involved were slight and as obvious as the simple means of avoiding them; and as to which there was no probability that the employee would have taken any greater care for his safety, had he been given some general caution.

By way of contrast with the facts of that case the risk here was high and the system employed by Zerk, left to his own devices, was inherently unsafe - a factor either that he apparently did not appreciate, or inadvertently overlooked. Had proper, mandatory instructions as to technique been issued and enforced (eg for use of props) and had Zerk been given proper training as to the methodology to be employed he would, no doubt, as an admittedly reliable and responsible employee, have followed his employer's requirements. In short, the present case exhibited many of the conceptual features of the situation discussed in Jones v Santrans Pty Ltd and Shaw Pipe Protection Pty Ltd (1991) 56 SASR 103.

It seems to me that, on any objective view, Finemores failed to discharge its duty of care towards Zerk and was plainly guilty of negligence towards him. The fallacy inherent in the reasoning of the learned trial judge is that the only problem was not merely Folino, as he suggested. Had Zerk been trained and required to adopt appropriate safety measures in the discharge of his task, the accident could not have happened. It would have been prevented by those measures. And it is no sufficient answer to an assertion of negligence, in circumstances such as those now under consideration, to say that Zerk was a mature man and an experienced and skilful driver who had picked up similar loads before. All that had happened on those occasions was that the very real risk, the existence of which he does not appear to have appreciated, failed to materialise into reality.

In the circumstances, I consider that judgment ought to have been entered against both Pilkington and Finemores. Although an attempt has been made to suggest that any negligence of Finemores was eclipsed by that of Pilkington, it appears to me that the reality of the situation is that there is little practical distinction to be drawn between the two of them, in terms of causation. I would hold that both were responsible for what transpired in equal degree.

That leaves for consideration the vexed question of contributory negligence of Zerk, qua each of the other parties.

So far as Finemores is concerned I find it impossible to conceive how it can properly be said that Zerk was guilty of contributory negligence in failing to take steps to secure the crates by use of props or some other means, having regard, in particular, to the reasoning adopted by the Full Court in Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Limited (1988) 47 SASR 6, based, as it was, on the earlier decision of the High Court in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492.

To adopt the words of Jacobs J "There was a job to be done, (Zerk) thought he could do it, and he felt obliged to get on with the job as best he could in the circumstances". In the same case von Doussa J made the telling point that the blame ought not to be transferred from the employer responsible for ensuring a safe system of work to the worker himself, by finding that the latter's adoption of an inadequate system amounts to contributory negligence unless the risk of injury arising from the system was clear, and it could truly be said that the worker was foolhardy in doing what he did. Certainly this is so where the worker is not shown to be acting in contravention of specific instructions of his employer.

In the instant case it is quite unrealistic for Finemores to seek to escape the consequences of its own breach of duty - at least in part - by criticising its employee for not making good its own default. This was a responsible worker with an excellent record attempting to get on with the job, as best he could, in the environment created (or at least permitted) by his employer. There is no suggestion that he was deliberately foolhardy. At worst he exhibited some error of judgment within the course of his normal work duties, in executing his assigned task. Contributory negligence has not been made out vis-a-vis Finemores.

So far as Pilkington is concerned the two assertions against Zerk are that he failed to take up Folino's offer of the use of props and that he was foolish in attempting to prevent the fall of the crate as he obviously did.

As to the first aspect the short answer is that Pilkington's own witness conceded that one method considered to be appropriate was to ensure that there was an adequate lean on the crate prior to the release of the slings. The evidence, including that led or put in by Pilkington, unequivocally established that both Zerk and Francis went to some lengths to check the degree of lean of the crate. It was probably the action of Folino, in traversing the crane in an unexpected and 18 quite illogical manner and direction, that precipitated the overturning of the crate in the manner already described. Moreover, the evidence strongly suggests to me that, although Zerk, in the agony of the moment, did attempt, vainly, to stay the fall of the crate, he was already in the path of its trajectory at the time - on his way to the front of the trailer. In practical terms, he probably had little or no chance of escape. The criticisms sought to be advanced bear all of the hallmarks of wisdom born of the benefit of hindsight.

Viewed globally I find it impossible to see how it can fairly be said that either the appellant or Finemores has demonstrated contributory negligence on the part of Zerk.

I would therefore:- (1) dismiss the appeal by Pilkington; (2) allow Zerk's cross appeal against Finemores, set aside the judgment of dismissal of his claim against it and substitute a judgment against Finemores for the amount of the damages assessed, co-extensive with the liability of Pilkington; (3) dismiss the cross appeal by Finemores related to the alleged contributory negligence of Zerk. I would hear counsel as to the detailed form of the order to be made and the question of costs.