BRENNAN CJ, TOOHEY, McHUGH, GUMMOW AND KIRBY JJ. The appellant was employed by the respondent, his employer, to drive pegs into the ground for the support of concrete formwork. He had been employed by the respondent and an associated company for 10 years prior to the accident. He used a 14 lb sledge hammer for the purpose. He was accustomed to using a hammer with a shortened handle which suited his physique and manner of work. The handle of that hammer broke and he was supplied with a hammer with a longer handle. He held that hammer with a grip that left the proximal end of the handle protruding towards his body. The hammer slipped or bounced off the top of a peg and the end of the handle was driven into his groin. The physical consequences of the accident were severe. He sued his employer for damages for negligence and recovered a judgment in an action in the Supreme Court of New South Wales.

The trial judge (Brownie J) found that the danger of injury from swinging a hammer was increased by the length of the hammer handle which was unfamiliar to the appellant. The risk of injury from this source was foreseeable but it was easily preventible by sawing the excessive length off the handle. This was a practice that was often followed by employees. A saw was available for the purpose.

If the appellant could and should have shortened the handle, it is arguable that any negligence that might have been found by reason of the provision of an unsatisfactory piece of equipment for the appellant's use would be negatived. That was essentially the respondent's case. However, basing his finding on the evidence of the appellant whom he accepted as "a truthful and reliable witness", Brownie J concluded "that on the morning of the accident the plaintiff was told to use the longer handled hammer, with a clear threat to his continued employment if he did not do so." His Honour summarised the evidence on which this finding was based:

"He said that he was told by Kostanjo (or 'Nick') Nicomedes, who effectively controlled the defendant, to use another hammer, with a handle of ordinary length, and to go to the job site, to work under the direction of Mario Nicomedes, the son of Nick. Mario Nicomedes and the plaintiff were the only employees of the defendant on that site on that day.

According to the plaintiff, whose command of English is imperfect, when the two men arrived at the site, he said to Mario Nicomedes that the hammer he then had was 'no good to me'. Mario Nicomedes replied: 'What you going to do?' and then: 'Go home or stick with the job'; and the plaintiff replied: 'We stick with the job', and proceeded to go on with his work, driving pegs."

On appeal to the Court of Appeal a different view was taken of the facts. Meagher JA, with whose judgment Handley and Powell JJA agreed, referred to a passage in the appellant's evidence including the following:

"Q. Did you ask Mario if you could cut off several inches from the end of the hammer?

Q. What did you say to Mario about the length of the handle?

A. Because the sledge hammer, I can't say nothing to him because if first to me, he does not do nothing to me.

Q. Did you say anything to Mario about the length of the handle?

A. He said: 'What you going to do, Peter. Work or go home?'

Q. Did you ask him whether you could cut off the end of the handle?

Q. That is what had happened before, wasn't it, the end of the handle had been cut off?

Q. Why didn't you ask Mario if you could cut off the end of the timber handle on the one you were given that day?

Q. Why didn't you ask Mario if you could cut off the end of the handle with your saw?

A. No, he does not give me any chance, we go to work, that's all. "

His Honour referred also to other evidence that showed that ordinarily there was no reason why a worker should not cut a handle that was too long down to the desired length. Meagher JA then said:

" Why, then, did the plaintiff not avail himself of the opportunity? And, more relevantly, how could Brownie J find for the plaintiff once it emerged that the plaintiff had not availed himself of the opportunity?

The answer would seem to be that his Honour took the view that the appellant forbade the plaintiff to shorten his hammer. There is, in my view, no evidence whatever to support that finding. The appellant's evidence, naturally, is to the contrary. But, what is more important, there is no evidence from the plaintiff to support this finding. According to the plaintiff, when Mr Mario Nicomedes and the plaintiff arrived at the job site, he said to Mr Mario Nicomedes 'this hammer no good to me', to which the latter replied 'What are you going to do? Go home or stick with the job?', evoking a response from the plaintiff 'We stick with the job'. His Honour obviously believed the plaintiff's evidence, and that means we must also. However, that evidence falls a long way short of a prohibition of the appellant to shorten the hammer, a story which is very unlikely in any event. Why would an employer risk losing a valued employee by prohibiting him from doing what everyone else did with the employer's approval?"

The judgment in favour of the appellant was set aside and judgment was entered for the respondent. This appeal is brought by special leave from the judgment of the Court of Appeal.

In this case, the respondent's liability depended either on the provision of unsafe equipment or on the direction allegedly given to the appellant not to delay his work to remedy the excessive length of the handle. If the respondent did not succeed in establishing that the appellant had an opportunity to shorten the handle, the appellant had to succeed. The trial judge was constrained to make his findings on evidence given, inter alios, by the appellant whose command of English was obviously imperfect. In these circumstances, the trial judge had to find not only whether Mr Mario Nicomedes had made the remark "What you going to do? Go home or stick with the job?" but also whether the appellant was reasonable in attributing to that remark the meaning of a command to use the long-handled hammer with a threat if he did not do so. When the evidence was given in broken English by a witness upon whose demeanour the trial judge relied, it is impossible to say that there was no evidence to support the critical finding or otherwise to warrant its rejection.

When a Court of Appeal is reviewing by way of rehearing the findings of fact made by a trial judge who has had the advantage of hearing and observing the witnesses, the Court of Appeal should not treat the appeal as a hearing de novo. As Barwick CJ said in Whiteley Muir & Zwanenberg Ltd v Kerr[1], followed in Warren v Coombes[2]:

"The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong."

Of course, if the relevant fact is an inference to be drawn from the established facts, the Court of Appeal may be in as good a position as the judge at trial: see Warren v Coombes[3]. Meagher JA in the present case seems to have regarded the appeal as turning upon the inference to be drawn by the Court from the words used by Mr Mario Nicomedes. With respect, that was not the question. The question was whether the words used were reasonably understood by the appellant to bear the meaning that Brownie J attributed to them. The appellant's understanding was conveyed by his oral testimony and the demeanour he exhibited - including the gestures and expressions accompanying the oral testimony. The reasonableness of his understanding the remark, in the way in which he was found to have understood it, is clear enough. If the choice is offered to "go home or stick with the job", it was reasonable for the appellant to come to the conclusion that continuity of employment was in issue. It is not to the point to query why an employer would risk losing a valued employee if it is found that that is precisely what the employer was understood to have done.

We would allow the appeal and restore the judgment of Brownie J. The judgment of the Court of Appeal should be set aside and in lieu thereof the appeal to that Court should be dismissed with costs. The appellant should have his costs in this Court. The appellant intends to apply for a special order with respect to his costs in the Court of Appeal. We shall hear what his counsel has to say. [After hearing counsel.] The appeal to the New South Wales Court of Appeal will be dismissed with costs on an indemnity basis from the date of the making of the offer of compromise in that Court.

[2] [1979] HCA 9; (1979) 142 CLR 531 at 542-543.

[3] [1979] HCA 9; (1979) 142 CLR 531 at 551.