Small v K & R Fabrications

Court of Appeal (NSW)|2016-04-01|Before: McColl JA, Basten JA, Simpson JA, Fullerton J, Coll JA

Solicitors: Carroll & O'Dea Lawyers (Appellant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2015/165789 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 559 Date of Decision: 15 May 2015 Before: Fullerton J File Number(s): 2010/101731

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Factual background

To explain the nature of the claimant's case at trial and on appeal, it is necessary to identify briefly the nature of the work he was undertaking at about the time of his injury. More detail will be provided as the need arises.
The respondent had a contract with BlueScope Steel Ltd to undertake maintenance work at its Port Kembla steelworks. The particular work on which the claimant was engaged, with a team of nine other men, was the replacement of three metre long steel channel beams (referred to at the trial as "C-beams", "stringers" or "steel channels") which ran between stanchions holding a conveyor belt carrying coke. The claimant said that he was holding such a beam which was being cut out by a boilermaker with an oxyacetylene torch, when the beam unexpectedly fell and twisted in his arms, causing him to twist and injure his back.
The injury occurred during the nightshift which commenced at about 7pm on Tuesday 23 January 2007. It was due to finish 12 hours later, but may have been completed sometime after 5.30am. The trial judge found that the claimant suffered the injury to his lumbar back about three hours after the shift started. He completed the shift.
The shift was the first occasion on which the claimant had undertaken maintenance work on BlueScope's coke conveyor. He did not return the following night, nor indeed thereafter.
The C-beams being removed were heavily rusted; the practice used to remove them involved a boilermaker cutting them at the mid-point of a three metre length, between two stanchions. Each half was then cut at the stanchion, applying the torch to the top and working downwards. Each cut length was thus approximately 1.5m and weighed about 17kg.

Notice of Appeal - grounds

The gravamen of the appeal may be shortly stated; it was that the judge erred in failing to accept the plausible account given by the claimant as to the circumstances in which the injury arose, stating that (a) he had complained of injury immediately after it occurred, (b) had maintained his account consistently over the years and (c) there was no persuasive evidence called by the defendant to demonstrate that his account was untrue. (The last point was qualified in submissions as to one particular element of the claimant's case.)
No purpose is served by setting out verbatim the seven grounds of appeal identified in the notice of appeal; they were formulated at a level of abstraction which provided little assistance in understanding the claimant's case. However, it is desirable to explain why that is so.
Ground 1 of the notice of appeal asserted that the trial judge erred in finding "that the appellant did not sustain injury whilst holding a C-beam". That statement did not correctly identify the critical finding which was as follows: [2] "While I accept he sustained a back injury at some time during the shift on 23 January 2007, I am not persuaded it occurred in the circumstances he describes or that there is any sufficiently compelling variation of those circumstances for me to be satisfied that it probably occurred whilst he was holding a C-beam that was being cut free of the frame of the coke conveyor, unaware that it had been severed at its mid-point."
In other words, there was no affirmative finding that the injury was not sustained whilst holding a C-beam, but rather there was a failure to be persuaded of the details of the claimant's account. The reversal of the onus of proof in this way is not insignificant: that is because "an appellate court may be more willing to intervene in circumstances where the trial judge has made a finding of fact in favour of the party bearing the onus of proof than where he or she has declined to make such a finding." [3]
Ground 2 asserted that the judge's finding "in relation to the circumstances in which injury occurred was contrary to compelling inferences." Again, there is the incorrect assumption that the judge made a finding as to the circumstances in which the injury occurred. Further, the reference to "compelling inferences" (unspecified) was an attempt to call in aid the principle identified in Fox v Percy [4] to the effect that factual findings based on an assessment of credibility can be reversed only in quite rare cases where the appellate court is satisfied that the decision at trial is "glaringly improbable" or "contrary to compelling inferences". [5] These colourful phrases have a long lineage and are frequently repeated, as in the grounds of appeal, as if they articulated a legal principle. Such usage is apt to impose a gloss upon the language of s 75A of the Supreme Court Act 1970 (NSW), which confers powers on this Court in the exercise of its jurisdiction with respect to civil appeals, which powers are not, according to conventional principle, to be read down by reference to implied limitations. [6] That is not to say that the appellate court does not approach the matter conscious of the advantages enjoyed by a trial judge in assessing the credibility and reliability of oral evidence, and conscious of the understanding of the case gained from conducting the trial. [7]
Ground 3 alleged that the finding that "the appellant had sustained injury at work (but not as alleged) was glaringly improbable." Again, that may be understood as a complaint as to the failure of the trial judge to be satisfied as to the correctness of the claimant's description of how the injury occurred, the injury itself being conceded. No specific basis of error was identified.
Grounds 4 and 5 alleged failure on the part of the trial judge to give adequate reasons for her conclusions. Ground 6 referred, without particulars, to a failure to "refer to all relevant material evidence", in coming to a conclusion that the claimant did not sustain injury in the manner alleged, again misstating the absence of satisfaction of critical elements of the claimant's case as an affirmative satisfaction of the contrary. Ground 7 alleged a failure to take into account "the number of witnesses who were not called to give evidence" and the judge's failure to draw an inference that they would not have assisted the respondent's case.
The relief sought was either a judgment in favour of the claimant or an order for a new trial on the issue of liability. The possibility that this Court could itself, if it found fault with the credibility findings made by the trial judge, reach a state of affirmative satisfaction as to the claimant's case is misconceived. The only possible relief in the event of success would be an order for a retrial.
There is no purpose in examining the grounds of appeal further: the preferable course is to identify the specific issues raised on behalf of the claimant in the course of submissions. To that end, it is convenient to start by outlining the scope of the evidence given at trial.

(a) claimant's case

The evidence adduced by the claimant fell within three categories, namely (a) reports of the injury recorded broadly contemporaneously with the accident, (b) accounts given by the claimant in two pre-trial statements of evidence and (c) his oral testimony. Although critical parts of his evidence were not ultimately accepted, it is convenient to start by summarising the case presented by the claimant. He also relied upon an expert report prepared by Dr Neil Adams, which may be put to one side for present purposes.
The claimant's evidence-in-chief (relevant to the question of liability) explained two diagrams which he had prepared showing the conveyor belts and the beams and where he was working, with the boilermaker, at the time of his accident. Otherwise there was only minor supplementation of the description of the event set out in his statements.
His first statement was dated 19 February 2014, almost seven years after he suffered injury. Of some 70 paragraphs, only four addressed the date of the accident, 23 January 2007, and only one outlined briefly how it occurred.
He attended the site at BlueScope Steel as one of a team of labour hire contractors employed by Allmen Industrial Recruiting Pty Ltd, whose services were provided to BlueScope's contractor, the respondent. The claimant understood his job was to be that of a "confined space/gas watcher". When he arrived, the foreman, John Doyle, told him they only needed one gas watcher and they already had two on site. Accordingly, if he wished to stay, he would be required to share the roles of gas watching and trade's assistant. He agreed to do that. [8]
His description of the accident was as follows: [9] "I ended up assisting a boilermaker who was using an oxy torch to cut through one side of a steel beam, who asked me to hold the beam. The boilermaker started cutting the beam about 2 feet from where I was holding it. When the boilermaker cut clean through the steel beam, the whole thing fell and dropped into my arms with its full weight. My arms pulled downwards. I felt instant and deep pain in my lower back. It felt like something had blown up in my back."
A second statement was signed three months later, on 20 May 2014. That statement dealt with the events of 23 January 2007 in greater detail, noting that he and the other workers had arrived on site by bus between 6.30pm and 7pm, and that there had been a "tool box meeting" before they commenced work, which was attended by the site supervisor, Mr Doyle, and Mr Vito De Gori, the supervisor/leading hand for the respondent.
The claimant gave evidence that his first task involved "cleaning up" and picking up "bits of steel into the scrap pile". He described picking up "small pieces of metal off-cuts, welding rods and other material". [10] He also provided assistance in fetching some new steel beams, which were loaded on a trolley, providing assistance in pushing it back to the area where he had been cleaning up and thereafter assisting with the unloading of the beams. [11] The account continued: "10. Shortly thereafter a person came up to me and said; 'Come here and give me a hand'. I then followed him to where the metal structure of the conveyor belt was. 11. This area where he was working was poor lighting. It was difficult to see things with great detail. 12. The person who I assumed was a boilermaker. I assumed that because he was using an oxy-torch and a protective face shield. He said to me; 'Hold on to this beam for us'. 13. I then took up a position as directed. 14. Accordingly I held the beam; it was about 30 or 40 cm where the boilermaker was about to commence the cut. 15. Immediately in front of my shins was a pipe so that I could not stand immediately adjacent to the conveyor structure and so I had to reach forward approximately 30 to 40 cm away from my chest. 16. The boilermaker was on the inside of the conveyor structure so that I was on one side of the beam and he was on the other. 17. He said to me 'Don't let it fall on me' and hence that is why I stood close at the point where it was being cut. 18. He then cut the beam from the structure. … The height of this beam as I recall was that it came to my lower chest area so that I extended my arms forward and reached forward to take hold of it. 19. The boilermaker was kneeling down on the other side, cutting downwards. 20. My expectation was that having cut that end that the beam may have sagged or buckled as it was finally cut through and this was the concern of the boilermaker. There was no discussion about this between myself and the boilermaker other than his direction for me to assist him to hold the beam and, 'watch it does not land on me'. 21. When the beam was being cut, I was holding it with both hands and turning my face to my left away from the oxy-torch, to keep debris from popping off the cut into my eyes, as I was wearing safety glasses however they have gaps in the sides. I was attempting to hold the beam by applying upward pressure with my right hand to try and keep the cut open, by keeping the beam straight as he was cutting downward. I had assumed the other end had been attached and so that the natural movement of the beam would have been to close the gap as it was being cut. 22. I had expected that when the final cut through went that the weight would be taken on my right-hand side. 23. The next thing I became aware of is that I felt the weight of the whole of the beam on both my arms, the metal beam dropped downwards pulling and twisting me to my left and I felt a severe pain in my back like a balloon expanding sensation. 24. I saw that the other end of the beam which was approximately 2 metres long had already been cut through. 25. The beam fell forward; I managed to hold the beam and then turned around and placed the metal beam on a pallet or box. 26. I then spoke to the boilermaker and said, 'I've just hurt my back'. The whole length of the bar that I held was approximately 1.8 to 2 metres in length. 27. The metal had signs of rust but the full structure was still there although you could see it had been affected by rust. 28. Once I took the full weight, I estimate the weight from my experience; it was about 17 to 20 kilograms. 29. The difficulty was that I had not expected the weight to drop suddenly. I had assumed the beam would drop downwards from where it was fixed as it was being cut, on my right-hand side. I did not expect it would drop on my left. 30. I had not been advised by anybody that the beam had been cut. When I commenced the work, to my observation, it appeared to be intact. From my observation, it appeared to me the left-hand end was still attached to the steel structure and beam at the other end. I had not realised it had been cut through on my left-hand side."
The next two parts of the statement dealt with his informal report of his accident to other workers during the shift and his reports to Mr Harper (who worked for his employer, Allmen) and those from whom he sought medical assistance in the following weeks. This material will be referred to shortly.
The claimant's case, based on this material, was that prior to 23 January 2007 he had had no experience with maintenance work of the kind which involved cutting out steel C-beams and replacing them. He had not been instructed as to the method by which the tasks were being undertaken. When he was asked to assist the boilermaker, he expected that he would be required to hold up the end where the cutting was taking place and was therefore caught unawares when the beam fell unexpectedly from the other end and twisted away from him.
If that account had been accepted, it might have provided the basis for a claim in negligence, although whether such a claim would have succeeded was not determined, because the account was not accepted.
Accepting that something happened that evening which caused an aggravation of his L4/5 disc protrusion, the actual injury was not relied upon to demonstrate the accuracy of his account, that is, of an unexpected load on his outstretched arms, causing him to twist to the left. On the other hand, it was not suggested that the actual injury was inconsistent with that account of its origin.
Before turning to the documentation, it is convenient to identify the elements of this account which were central to the claimant's case in negligence. There were three such matters. Most importantly, there was the sudden and unexpected drop of the beam, with the weight on his left hand side. Absent that element, the cause of the injury was not disclosed. The second and related element was the claimant's ignorance of the method by which the C-beams were cut out, and in particular the fact that the first cut was made at the mid-point. Absent ignorance of that fact, it is doubtful that the claimant could have identified the drop as unexpected, unless he was paying no attention to the business at hand. The third element was controversial. It was the positioning of the boilermaker on the other side of the C-beam (inside the structure where the conveyor belt ran) on one knee and with the oxyacetylene torch above his head. Both at trial and before this Court, there were submissions that he could be mistaken in that regard and yet maintain a claim in negligence, although his credibility and the reliability of other aspects of his account might have been called into question.
Turning to the reports of the injury, the night shift was a 12 hour shift which ended at or a little before 7am on 24 January 2007. The claimant said that he returned home after his shift, in quite significant pain and rang Rod Harper to report the accident. He further said that he "primarily remained in bed" for the next two days. [12]
An incident report was prepared by Mr Doyle (for the respondent) on 25 January 2007. Mr Doyle obtained the information in the report from Mr Harper. The date and time of reporting were noted as 3pm on 24 January and the description of the incident was "employee report sore back after waking up after sleep". The report contained an account that the plaintiff was working in the coke handling area "on 24C conveyor" with a crew of nine. It noted that he was working as "relief gas watcher and t/a [trade's assistant] when not doing gas watching duties." The report continued: "Ray completed the night shift at 7.00 am 24/01/07 [went] home and went to sleep until approx 2.30pm, after waking up he had a stiff lower back, he reported this to Rod Harper who in turn informed myself."
A further entry for 25 January stated that Mr Harper had "contacted Ray this morning to check on his condition, he found Ray in good spirits with no ill effects from the reported stiff lower back".
To the extent that this report appeared to indicate less pain than asserted by the claimant, it may be noted that Mr Harper was not called and was therefore not cross-examined as to the basis of his conversation. On the other hand, the claimant did not provide detail of any conversations with Mr Harper, beyond saying that he rang Mr Harper on 24 January "and advised him I had hurt my back." [13]
The claimant said that a week later, on 30 January, he saw a general practitioner, through an arrangement made by Mr Harper. The practitioner, Dr Mill, noted a history, so far as could be deciphered, in the following terms: [14] "Working in pit, cutting piece of steel channel - was holding piece with both arms somewhat extended - both ends released - sudden application of weight - sudden … [left] feeling (tightens) left lumbar - kept hold of steel piece - moved to … - unable to fully straighten Since then - progressive improvement [diminished] pain - able to stand upright … (has not been back to work since)."
Dr Mill noted there was "minor tenderness midline at L4/5" and on the left side of the deep gluteals. He concluded that the plan was for a return to restricted duties and for treatment by a physiotherapist. Referral to a physiotherapist occurred that day and notes were made by the physiotherapist, without further details of the history.
The following day, 31 January 2007, Mr Harper signed an entry in Allmen's register of injuries and treatment which recorded the work in which the claimant was engaged at the time of injury as "holding section of steel channel". The cause of injury was recorded as "strained back while holding steel channel". The injury was described as located in the lower back and the treatment given as physiotherapy, the worker having been referred by Dr Gordon Mill.
The next documentation appeared to be that of an exercise physiologist, Dr John Booth, who saw the plaintiff on 21 January 2008, that is a year after the accident. The history was identified as follows: "Mr Small sustained a lower back injury in January 2007 involving sudden and unexpected trunk forward and side bending under load."
In broad terms, those records confirm a back injury, the injury being caused by a sudden and unexpected load on his arms, while holding a piece of steel, with a movement to his left hand side.

(b) respondent's case

As senior counsel for the respondent emphasised, it was no part of the respondent's case that the claimant did not suffer an injury at work: however, it was an injury entitling him to worker's compensation and not one which gave rise to a cause of action in negligence against the respondent. Further, it was no part of the respondent's case that trade's assistants never took hold of half beams, either while they were being cut away from the stanchions or after they had fallen to the ground; rather, that was an integral part of the function being performed by the claimant. The Court was referred to the statement of Mr Doyle to the following effect: [15] "On the particular night Mr Small's role was to hold or pick up the half beams and place them on the trolley. In other words, he was working with the boilermaker and would be required to take the weight of a half beam or pick it up and put it on the trolley as the boilermaker cut it.
The respondent's affirmative challenge to the claimant's case may be summarised by reference to the elements identified above, starting with the third element, being the position of the boilermaker.
The description given by the claimant of the manner in which the C-beams were cut out by the boilermakers was not only inconsistent with the method of work adopted by the defendant but was simply implausible in a number of respects. One critical particular involved the proposition from which the boilermaker was wielding the oxyacetylene torch, that is whilst crouching or kneeling on one knee inside the structure where the conveyor belt was usually positioned. (The upper part of the conveyor belt was raised during this process and a fire retardant blanket put over the lower section for protection.) The leading hand, Mr De Gori, said he had never seen a boilermaker cut a C-beam from that position. He thought that only a small person would be able to get into that position. The site supervisor, Mr Doyle, said that he had supervised the particular maintenance task on about 20 occasions and had seen the job done in the same way over the previous 10 years. He had never seen it done by a boilermaker kneeling or crouching inside the structure, which he described as a "silly or stupid" position.
The respondent called its general manager, Mark Carberry. Mr Carberry gave evidence that, prior to attaining managerial positions, he had "personally undertaken the work performed by Mr Small and undertaken the work of the boilermaker in the particular area where Mr Small says he hurt his back." His evidence in that regard, which was not the subject of cross-examination, continued: [16] "I have personally undertaken the work of a trades assistant and held onto and lifted the beams as they are cut by the boilermaker. The boilermaker will cut the steel beams in half and then cut each end of the beam. As the boilermaker cuts each end the beam will lower gradually and either fall to the ground or be held and removed by the trades assistant. The weight that the trades assistant is required to hold or lift is not heavy. The task is not difficult to perform. I have never seen more than one person lifting the beams which are cut in half and removed. It is simply not necessary for more than one person to lift or take the weight of the beams which have been cut in half and it would be impractical for more than one person to do that. As far as I am aware, there is no other way of undertaking the work and it has been performed in this way for many years."
The defendant also called Mr Dimkovski, a boilermaker who had been working on the same shift, although he had no recollection of the claimant. Nevertheless, he said he had never seen a boilermaker working from inside the conveyor belt structure and had never done so himself.
It was the consistent evidence of the defendant's witnesses that the standard practice was first to cut the C-beam in the middle so that the length of the beam, which was about 3 or 3.1 metres, was halved. Next, the boilermaker would move to one end, where the C-beam was bolted to a stanchion, and cut it near the stanchion (though leaving a piece around the bolt). Cutting down from the top, the C-beam would sag at the middle before the end being cut fell away from the stanchion.
The claimant's account depended squarely upon the proposition that the boilermaker was inside the conveyor belt structure, and below the level of the beam, on one knee, so as to explain the need for an assistant to hold the beam while it was being cut, namely so that it did not fall on the boilermaker. If this part of the claimant's story were not accepted, the asserted purpose of his actions would disappear.
The second element was the unexpected sudden drop; the third and related element was the claimant's asserted unawareness of the system of cutting the C-beams. The respondent's rejection of these elements involved several steps. First, if the usual practice were adopted, there was no need for any person to take the weight of the C-beam as the boilermaker cut it from the top, next to the stanchion. Secondly, supposing that the claimant was holding the beam, next to the boilermaker, he would probably have been holding the beam close to the mid-point of the severed section. Thirdly, the beam would not drop suddenly, but would sag at the end which had already been cut (being at the mid-point of the three metre beam). Fourthly, if it did "drop" it must have been severed at both ends at that point. Fifthly, the exercise of cutting the beam was simple and standard; it was highly implausible that the claimant had been working in the general area for three hours without being aware of that process.
The trial judge was not satisfied on the balance of probabilities as to the correctness of the claimant's account. It is convenient to address the reasoning relied on in reaching that conclusion by reference to the challenges to its adequacy.

(a) complaint at time of injury

The first complaint raised by the claimant was that, whilst the trial judge referred to his report of injury in outlining the evidence, she reached her determination relying only upon the clinical notes of Dr Mill of 30 January 2007. [17] Thus she appeared "not to have taken the respondent's own report of injury into account." [18]
Factually, that description of the reasoning is incomplete. Under the heading "The report of injury" the trial judge stated: [19] "31 On 25 January 2007, John Doyle, a Senior Site Supervisor employed by the defendant, prepared an incident report which, under various pro forma fields, records information relating to the plaintiff's injury. According to the incident report, the injury was first notified by the plaintiff to Mr Harper on the morning of 24 January 2007. 32 Although the incident report prepared by Mr Doyle records that the complaint was that the plaintiff woke at about 3pm on 24 January 2007 with a 'stiff lower back', the Allmens' Register of Injuries and Treatment, a document signed by Mr Harper and dated 31 January 2007, records the type of injury as a 'sprain to the lower back'. A pro forma field in the Allmens' records entitled 'Operation in which the worker was engaged at the time of injury' records '[injured worker] holding section of steel channel', and against another pro forma field, 'The cause of injury', as 'strained back while holding steel channel'."
In short, there was no doubt that the claimant complained the next day; the question was whether he had reported the event in the course of the shift, as he claimed. The trial judge expressly addressed that question, identifying the issue as relevant to his credibility [20] and referring back to the evidence of Mr De Gori that "if an injury were reported, in particular were a worker to have complained of a back injury, he would immediately call the supervisor (Mr Doyle, in this case) and advise him of the incident and call the safety officer to attend to the injured worker." [21] She also referred to his evidence that "the defendant's reporting procedure necessitated that line of communication be followed and that he followed it." [22]
In reaching her findings, the judge stated: [23] "Although the plaintiff's report of injury a week after he injured his back as detailed in Dr Mills' clinical notes of 30 January 2007 … supports the account of the mechanism of injury he gave in evidence, as do the records maintained by Allmens (set out at [32] above), albeit to a lesser extent, both must be considered in the context of a marked lack of support anywhere in the evidence for the plaintiff's assertion that he made an immediate report of injuring his back to the site supervisor on 23 January 2007…".
The trial judge continued: [24] "Given the terms of the incident report prepared by Mr Doyle the following day, to the effect that he was notified by Mr Harper that the plaintiff had a 'stiff lower back on waking', in my assessment the probabilities favour the plaintiff having sustained an injury that was not of the severity described by him in his evidence, whatever its mechanism."
In the course of oral submissions, the claimant asserted that the trial judge had "compartmentalised" the process of reasoning so that, despite the cross-reference to the earlier findings at [32], the last two passages set out above did not provide support for the conclusion that the claimant did not report the injury in the course of the shift.
This form of reasoning, which was repeated with respect to other aspects of the findings at trial, committed the same error which was sought to be ascribed to the trial judge, namely compartmentalising the reasoning process. Even without the express cross-reference to the earlier passages, a reading of the judgment as a whole demonstrates unequivocally, that the reasoning progressed through a series of stages of considering the claims, the evidence, making findings on specific issues and reaching a final conclusion. The challenge to the adequacy of the reasons, as thus articulated, contravened the canonical statement that "reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". [25] (Although this language was used with respect to judicial review of an administrator's decision, it may properly be applied to appellate review of a trial judge's reasoning.)
The other aspect of the reporting concerned the content of the report. Because there was no issue that the claimant had suffered some injury at that time, the matters of critical importance were the mechanism by which it occurred and its immediate consequences. If his evidence of immediate reporting were rejected, the trial judge noted the potential inference adverse to his account: [26] "However, given his insistence that he was injured and felt its effects immediately, I am left in doubt as to whether he was injured in the way he claimed in his evidence …."
The claimant submitted that the incident report prepared by Mr Doyle was strongly supportive of the account given by the claimant in evidence. [27] That was a point expressly rejected by the trial judge in the reasoning set out above. Neither the incident report, nor the notes taken by Dr Mill and the physiotherapist seven days later, supported the description given by the claimant in evidence as to the immediate and severe pain in his back ("a severe pain in my back like a balloon expanding sensation"). Further, although the mechanism described in Dr Mill's notes, namely that he was holding a C-beam with both arms somewhat extended when both ends were released with a sudden application of weight, was consistent with the account given in his evidence, nevertheless there was no detail as to critical aspects of his activity necessary to demonstrate a breach of duty by the respondent.
There was no error in the way in which the trial judge dealt with the reporting of the injury.

(b) whether boilermaker inside structure

This element was treated as critical to the claimant's case at trial. It was dealt with relatively briefly in submissions on the appeal. First, the submissions accepted, as was inevitable, that it was not ordinarily the case that a boilermaker carried out the cutting from inside the conveyor frame. [28] The next step in the argument was to note that such a course was not impossible. Although the possibility was accepted by Mr De Gori, he said that "nobody under his supervision would do so without his permission" and that the person would have to be "somebody skinny … not somebody who has got a bit normal body … at least he's got to be small". [29]
This description highlights a curiosity in the claimant's statement. He described how "a person came up to me" and asked him to give a hand. That person was undoubtedly a boilermaker because he was carrying "an oxy-torch and a protective face shield." On being so requested, the claimant said he "then followed him to where the metal structure of the conveyor belt was." He did not describe how the boilermaker got inside the structure nor did he describe the role of the fire retardant blanket which was kept over the belt to protect it from sparks.
The respondent's evidence as to how the boilermakers carried out their work, namely standing on the outside of the frame and cutting the C-beams from a standing position with the oxyacetylene torch, provided a vivid indication of how the work was undertaken as a regular practice. The evidence of Mr De Gori, Mr Dimkovski, Mr Doyle and Mr Carberry all supported that practice. The suggestion that a different course was not impossible took the matter no further. As the trial judge said, the evidence called for the respondent provided no support for the claimant's description of the boilermaker working underneath the frame and the preponderance of evidence "positively and persuasively contradicted the plaintiff's evidence on this issue." She continued: [30] "Their frank and consistently expressed surprise, to the extent of disbelief, that a boilermaker would or would need to position himself underneath the frame (or fit underneath it) satisfies me [that] that aspect of the plaintiff's account of the mechanism of injury should be rejected. (I note that Dr Adams also expressed some incredulity that a boilermaker would position himself underneath the frame to cut the beam.) It follows that I am also unable to accept the plaintiff's evidence that he was asked by the boilermaker to hold the beam from the commencement of the cut through to the final stages of the cut from his position underneath the frame 'to avoid it [the beam] falling on him [the boilermaker]'."
There was no lack of clarity or error in that reasoning; the conclusion was not only warranted - any other conclusion would, on the evidence, have been remarkable.

The primary judge found that from the position in which the claimant was standing, "the beam would sag progressively to the plaintiff's left." [31] That finding was unsurprising because he was facing the right hand end of the beam, with the boilermaker making a cut alongside the stanchion to the claimant's right, the earlier cut in the middle of the beam having been made to the claimant's left.
The thrust of the complaint under this heading was obscure. The submission commenced by saying that the judge "does not explain the evidence that allows her to come to that conclusion." [32] It concluded by saying that the finding "that the appellant would notice progressive sagging appears to overlook that [that] was indeed the appellant's evidence." [33]
There was undoubtedly evidence to support this finding, as the claimant recognised, in the video of the work being done. Further, as the submissions also recognised, the claimant in effect described a feeling of the beam sagging on his left. [34] Accordingly, even if correct, the suggestion that the trial judge did not "explain" the evidence that allowed her to come to that conclusion is beside the point. Nor was it true to say that there was "quite limited cross-examination on this point"; [35] there were several pages of cross-examination of the claimant directed to the proposition that the beam had in fact sagged as he held it.
The fact of sagging was significant for two reasons. First, as the judge said, "the likelihood of a sudden and dramatic shift in the weight of the beam as the beam was cut free is not borne out by the evidence, irrespective of whether the plaintiff was unaware that the beam had been severed at its mid-point." [36] Secondly, the fact that the beam was sagging to his left was either inconsistent with his claim that he was not aware that it had been cut at the centre point, or it should have alerted him to the fact that it had been cut to the left of the point at which he was holding it. However, the critical point was the apparent inconsistency of this aspect of the description with the suggestion of a sudden and unexpected pull to the left. The complaint about the reasoning of the trial judge in this respect cannot be accepted.

(d) awareness that beam cut first at midpoint

Next, the claimant challenged the finding that the trial judge was not satisfied that he was "ignorant that the beams were cut first at a midpoint". [37] His submissions, in effect, relied upon four propositions, namely that: 1. the lighting in the tunnel was poor; 2. although he had been working in the tunnel for about three hours before the accident, he was not working in close proximity to the boilermakers cutting the beams; 3. he was wearing safety glasses which were not darkened, so that it was natural for him to turn away from any work with the oxyacetylene torches, and 4. no explanation of how the work was to be undertaken was given at the tool box meeting.
The evidence of Mr De Gori, who gave the tool box talk, was inconsistent with the claimant's evidence that there was no description of the work to be undertaken given at the meeting. However, the trial judge did not resolve that inconsistency, noting that the issue was "not determinative", [38] by which she appeared to mean that she made no finding that a relevant description was given.
The question of lighting was also treated as not determinative. That was because it would only have been relevant if the awareness of the claimant that beams were cut at a mid-point first arose when he was asked by the boilermaker to assist with the particular beam which led to the injury, on his account. That is, the question might be whether, not having seen the work being undertaken, the cut would have been visible to him as he held the beam within a metre of the cut, and with his face turned in that direction. Rather, the finding made by the trial judge depended on three factors, the first of which was "his exposure to the system by which the C-beams were removed over at least three hours before he says he injured his back." [39] That factor was "coupled with" two other matters which had been dealt with in the evidence. The first matter was his answers in cross-examination as to his claim "not to have seen how the boilermakers were cutting and removing the C-beams", and his claim that he did not lift any of the severed pieces of the C-beams. [40] "Q. You'd lifted plenty of these beams before you say you hurt your back, hadn't you? A. No. Q. Not at all in the three hours you had been working down there? A. Only maybe one or two. Q. One or two. Okay. When did you lift the one or two beams in that three-hour period? A. I can't remember. Q. How did it come to your mind then that you had lifted one or two? A. Because I would have moved some steel around, not the whole beams. Q. No, the half-cut beams? A. Or just any pieces. Q. Under what circumstances would you have been moving the steel around? A. When I was doing the clean-up and when I helped the guy with the trolley to come back to the area."
The second was a passage in the evidence as to his ability to detect the level of rust on a beam that was to be removed, although the lighting was said to be poor. [41] The evidence quoted in the judgment was as follows: "Q. Well, you have said in your earlier evidence, when asked questions by Mr Dooley, that you could see this steel beam in such detail as to assess the level of rust, couldn't you? That's the effect of what you said? A. Yes. Q. And you could see it in such detail as to observe that there was some sort of debris or material on top of the steel beam? A. Yes. … Q. So you say you could see it was that light that you could determine the level of rust in the particular beam that was being cut by the boilermaker? A: No. Q. You have no idea, do you, about how rusted it was? A. I know there was rust on it. Q. How do you know that? A. Because I'd seen the pieces. Q. Seen the pieces? A. Yeah. … Q. …you used the word in plural, Mr Small. A. I had seen the pieces of scrap steel later on and I'd seen them that night as I was walking down a conveyor."
In relation to these passages, it is convenient to refer to an apparent complaint by the claimant that the trial judge made no adverse finding as to his "demeanour". However, it is clear that she did not accept his evidence in critical respects, based on the passages set out above (and indeed other passages in his cross-examination) which tended to render his account as set out in his second statement, implausible in critical respects.
The challenge to the judge's reasoning with respect to his awareness of how the beams were cut should not be accepted. In short, he had ample opportunity to see what was being done and it was his job to remove the cut pieces, as he grudgingly conceded he did.

(e) failure to refer to relevant evidence

This matter (ground 6 in the notice of appeal) was explained as a failure to refer to the fact that most of the evidence of the respondent's witnesses was not describing the events of the night in question, but standard practices and procedures in carrying out work of the kind being carried out on 23 January 2007. Further, it was submitted that the judge should have referred to aspects of the evidence which demonstrated that the general practices described were not uniformly adhered to, but clearly turned upon the circumstances faced by the workers in the course of carrying out their functions.
In substance, this constituted a complaint about the adequacy of the reasons. However, no recitation of authority is needed for the proposition that a judge does not have to refer to every piece of evidence in reasoning to a conclusion. The complaint that the judge, having described the evidence given by the witnesses for the respondent in some detail, was not conscious of the nature of the evidence and the fact that, beyond the records, little was said that was directed to the night in question, was of no substance.
Further, the departures from general practice relied upon by the claimant were not of obvious significance. The challenge fell within the same category as that relating to the position of the boilermaker inside the framework of the conveyor: there were clearly possibilities, but the claimant at trial bore the onus of demonstrating that his case should be accepted on the balance of probabilities. There was no substance in this complaint either.

(f) witnesses not called by respondent

The allegation (set out in ground 7) included the proposition that there were "nine persons in the work crew" of whom only Mr Dimkovski and Mr De Gori gave evidence, together with Mr Doyle, the senior supervisor. In particular, it was noted that Mr Rod Harper, the officer of the claimant's employer to whom complaint was made on the afternoon after the accident, and who was the source of the information supplied to Mr Doyle, was not called.
To the extent that a Jones v Dunkel [42] inference was sought to be relied upon, the ground has an air of unreality. Thus, no criticism was made of those witnesses who were called as to their lack of recollection of the events of the nightshift on which the injury occurred. There was no basis for thinking that others would have an actual recollection of the evening, more than seven years later. Nor was it plausible that Mr Harper would give more detail of a conversation, beyond that recorded, given that the claimant was apparently not able to do so. It follows that an inference may readily be drawn that they would not have supported the respondent's case but, more importantly, that did not allow greater confidence in the claimant's case. [43] On that basis, the complaint goes nowhere.
In any event, it is not clear that the claimant's fellow workers were in the respondent's camp, as opposed to his, so far as any inference could be drawn from the failure to call them. The same may be said for Mr Harper. The claimant did not sue his employer, but the employer probably had an interest in his success against the respondent, as a party from which it could recover some or all of the worker's compensation payments which it had made to the appellant. For this further reason, the ground is without substance.

(g) other evidence

At trial, the claimant relied primarily upon his own evidence and only secondarily on reports of Dr Neil Adams, an expert called by him; thirdly, he relied on the incident report and the clinical notes of Dr Mill and Dr Booth. The evidence other than that of Dr Adams has been addressed. Although not identified as relevant to any particular ground of appeal, the written submissions of the claimant stated that his case was "really a matter of common sense" and was supported by the expert evidence of Dr Adams. [44]
The trial judge dealt with Dr Adams' evidence, but it was not critical to her findings on the issues in question. Dr Adams sought to explain the mechanism described by the claimant and how it might cause the injury to his lower back. However, in a number of respects, Dr Adams' evidence was qualified in cross-examination and did not support the claimant. As the trial judge noted, Dr Adams accepted that the lighting in the tunnel as shown in the video was inconsistent with the claimant's description of the lighting. [45] The judge further noted that Dr Adams' assumption as to how the claimant was holding the C-beam (with his right hand on top and his left hand underneath) was not the account given by the claimant in evidence. [46] The judge further referred to the assumption by Dr Adams that the claimant was standing 45cm away from the beam, a distance which she did not accept. [47] Nor did she accept the distance the claimant would have been from the centre cut. [48]
The trial judge did, however, accept Dr Adams' evidence that he did not consider 17kg, being the likely weight of the half beam, to be heavy, which, although consistent with the claimant's own evidence at trial, was inconsistent with an account given to his treating doctors that the "weight he was required to lift was heavy". [49]
In short, Dr Adams sought to give a reconstruction of the event based on the claimant's oral explanations to him. (His report pre-dated the evidentiary statements of the claimant by several years.) To the extent that the explanations were not accepted or were qualified during the course of the trial, the weight of Dr Adams' opinions was diminished. There could be no complaint that his evidence was not appropriately taken into account by the trial judge.

Conclusion

The claimant's evidence did not satisfy the trial judge that the injury occurred as he described it. Without knowing how the injury occurred, the Court could not be satisfied that there was breach of duty of care. Accordingly, the bases upon which the judge reasoned not having been shown to be fallacious, nor her reasoning erroneous or inadequate, and there being an inadequacy of evidence to support the claimant's case, the appeal must be dismissed.
The appellant must pay the respondent's costs in this Court.
SIMPSON JA: I agree with Basten JA.

Endnotes

[2015] NSWSC 559.
Judgment at [102].
Nominal Defendant v Smith [2015] NSWCA 339 at [11], referring to Griffiths CJ in Dearman v Dearman (1908) 7 CLR 549 at 553.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ).
The two phrases are sourced to Brunskill v Sovereign Marine & General Insurance Co Pty Ltd (1985) 59 ALJR 842 at 844 (Gibbs CJ, Wilson, Brennan, Dean and Dawson JJ) and Chambers v Jobling (1986) 7 NSWLR 1 at 10 (Kirby P), respectively.
See Owners of Ship 'Shin Kobe Maru' v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421.
See Nominal Defendant v Smith at [74]-[76] (Leeming JA).
First statement, par 46.
First statement, par 47.
Second statement, par 7.
Second statement, par 8.
Second statement, pars 35 and 36.
Second statement, par 38.
Partly transcribed in Judgment at [34].
Statement, 3 April 2014, par 24.
Statement, 7 April 2014, par 11.
Appellant's written submissions, par 27.
Appellant's written submissions, par 30.
Judgment at [31].
Judgment at [97].
Judgment at [81].
Judgment at [81].
Judgment at [97].
Judgment at [98].
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow JJ); adapted from Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J).
Judgment at [98].
Appellant's written submissions, par 29.
Appellant's written submissions, par 32.
Judgment at [76], being the passage relied upon by the appellant in his submissions.
Judgment at [99].
Judgment at [101].
Appellant's written submissions, par 36.
Appellant's written submissions, par 45.
Tcpt, p 75(30).
Appellant's written submissions, par 38.
Judgment at [101].
Judgment at [101].
Judgment at [101].
Judgment at [101].
Judgment at [30(3)].
Judgment at [30(9)].
(1959) 101 CLR 298.
Jones at 308 (Kitto J).
Appellant's written submissions, par 68.
Judgment at [39].
Judgment at [40].
Judgment at [42]-[43].
Judgment at [45]-[47].
Judgment at [48]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2016

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