STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, Hope and SAMUELS JJA 16 February 1988, 8 June 1988 [1988] NSWCA 144 NEGLIGENCE — employer and employee — unsafe system of work — railway worker injured replacing overhead electric cables from top of repair train — factual dispute concerning circumstances and cause of injury — whether unsafe system — whether foreseeable risk of injury — whether alternative and reasonably practicable means of avoiding or diminishing risk of injury — challenge to assessment of damages — held: (1) No error in findings by trial judge (Lloyd Jones DCJ) as to circumstances of injury; (2) Risk of injury whilst working on top of cable repair train was foreseeable; (3) A safe alternative system available, viz working from stationary train; (4) expert evidence was unnecessary to prove this as this was the employer's proper system. Neill y NSW Fresh Food & Ice Pty Limited (1963) 108 CLR 362, 364; Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666 considered and distinguished; (5) Challenge to assessment of damages dismissed. ORDERS Appeal dismissed with costs. Kirby P I agree that this appeal should be dismissed for the reasons given by Samuels JA. Hope JA I agree with Samuels JA. Samuels JA The respondent, the plaintiff in the action before Lloyd Jones DCJ,was born on 22 January 1956 and was injured on 5 November 1983 while employed by the appellant as a linesman, a job in which he had been engaged for some time prior to that day. The work which he and other employees were undertaking involved the removal and replacement of overhead contact wire, that is, the line which carries the power for the propulsion of electric trains. The old wire was rigged from overhead stretchers carried on vertical stanchions at each side of the line, and set some distance apart; and was suspended from clips called droppers in which it was retained by means of pins or nails. The process was conducted in this way. A special wiring train was employed which consisted of some eight or so flat topped carriages preceded by a specially designed flat car on which were mounted drums, usually three, on which the new double contact wire was wound. On the roof at the front of the leading carriage there was a roller. The wire was led from the first drum to be used up at an angle and over the roller and then pulled off the drum until it lay on the flat roofs of the carriages along the length of the train. Then it was attached to an anchor point, a stretcher pole or stanchion, near to the rear of the train. The old contact wire was removed from the droppers along the length of the train by a number of employees standing on the roofs of the carriages. The new wire was picked up and placed in the same droppers and secured by reinsertion of the nails or pins previously removed to allow the unhitching of the old wire. After each phase of this operation the old wire lay on the flat roofs along the length of the train and a similar length of new wire, anchored at one end, had been inserted in the droppers running along overhead until it descended to the 2 UNREPORTED JUDGMENTS roller and thence to the drum whence it had originated. At that point the train moved on at very slow speed until the next length of old wire still attached to the droppers, was reached when the operation would be repeated. The description of this exercise given at the trial was not very lucidly presented and a number of details, which the uninstructed would wish to know, were omitted. However, it would seem that as the wiring train moved on, the newly attached wire, which was heavy material, would droop from its last point of attachment to the roof of the carriages and, depending presumably upon the freedom with which the drum was allowed to rotate (it was controlled by a brake which could adjust the tension of the wire), the new wire would remain on the roof until the next stopping point was reached, when the procedure I have outlined would be repeated. That was, at least, the way in which the appellant sought to explain the procedure The reality, as asserted by the respondent and substantially accepted by the learned judge, was somewhat different. The respondent's case was that although he had been told when being trained at Chullora Linesman's School that a linesman engaged in this work must sit when the train was in motion and that therefore the removal and re-rigging of wire could be done only while the train was stationary, in practice the work was commonly done while the train was in motion, travelling at a very slow speed. This, he said, was done "all the time". The old wire was approximately waist high to a man standing on the roof of a carriage of the wiring train and this seems, on the evidence, to have been more or less common ground. The new wire, the respondent asserted, did not always lie flat on top of the carriage because when he met with his accident it was about one foot from the carriage roof. Since the pins or nails in the droppers were not always inserted from the same side, it was necessary to move from one side of the old wire to the other in order to knock out the pin with the tool provided. In order to do this, it was necessary to duck under the old wire. The accident happened when the respondent, intending to move to the other side of the train in order to reach a pin or nail which could only be reached, or could more readily be reached, from that side, knelt to go under the old wire, got his foot tangled in the new wire and fell on his knee, sustaining the injury and the consequences of which he complained. The train was moving at the time so that the new wire was moving - was being pulled off the drum at the front of the train - relative to the train itself. Lloyd Jones DCJ first heard evidence on liability and determined that issue before going to the question of damage. He described the general nature of the operation and then proceeded to make a number of clear findings of fact. which it will be helpful to note. First, that the work had some degree of urgency about it so that the respondent was required to work repetitively and fairly quickly. Secondly, that it was reasonably necessary for workers to move from one side of the old wire to the other, for the reasons which I have already mentioned; and that this was "a regular procedure in fact followed to the knowledge of the defendant." Thirdly, that the new wire band I should emphasise that the wire being rigged, which I have called the new wire, consisted of two wires, not one) might be on the roof of the carriages or at a height above the roof which varied "in different circumstances from time to time." Fourthly, that when the respondent was injured the new wire was "certainly some small distance above the top of the train." Fifthly, that the respondent, whose evidence the learned judge accepted, became entangled in the new wire or tripped on it in the way which he had described and sustained injury in consequence. Sixthly, that a safe system would have been for the work to be done when the train was stationary URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM (Samuels JA) — 3 and for all the workers handling the wire, the old and new wire, to do so simultaneously as a team. In the result, the learned judge found that the appellant had been negligent and went on to assess the respondent's damages. The appellant challenges the findings to which his Honour came on the issue of liability. The case, as it was contested at the trial, presented these issues on the question of negligence or no negligence, First, was the new contact wire about one foot or, at least, some distance of that order above the roof of the carriage on which the respondent was standing (it was common ground that he was positioned at a point about the middle of the length of the train) when the accident happened? If the answer to this question is negative, I would think that the respondent would have failed at the trial and, if there is no evidence to support the finding which his Honour made, or if that finding were wrong, then the appellant would succeed on the appeal, If, however, the answer to the first question is yes, then the second issue is whether the appellant, on and before the date of the accident, permitted a system of work which allowed men to unrig and re-rig wire while the train was in motion and reasonably involved their having to duck under the old wire in order to get access to the retaining pins or nails while the new wire might be running some distance above the roof of the carriages. I would think that it could scarcely be doubted that if this was the system and, in particular, if it was one facet of the operation that the new wire might be other than flat on the carriage roof, there was involved a foreseeable risk of injury. Finally, was there an alternative and reasonably practicable means of doing the work which would have avoided or diminished the risk? It is perfectly correct, as Mr Kenny QC for the appellant submitted, that the only account of precisely what happened at the time of the accident was provided by the respondents. However, his Honour accepted him as a witness of truth and rejected the evidence of Mr Scott, a foreman who actually did offer an account of the occurrence in which he asserted that the respondent knelt down to get underneath the old wire and twisted his knee. Mr Scott further deposed to a conversation with the respondent soon after the incident in which the respondent said that he had twisted his knee. However, although the respondent was thoroughly cross-examined on the occurrence, and although he volunteered a conversation with Mr Scott in which he had merely said that he had hurt himself, no question was put to him in cross-examination to suggest that he had admitted to Mr Scott that he had only twisted his knee. Moreover it was very firmly suggested to him that Mr Scott had been on the top of the wiring train at the time of the accident, although this turns out to have been incorrect since Mr Scott himself said that he had not been on the train but on the ground some little distance away from the place at which the plaintiff was working on the train. It therefore seems to me that the learned judge was perfectly entitled to conclude that the respondent's description of the accident was correct and, having formed the view, as he did, that the respondent was a creditable witness, his finding in this respect is not open to challenge on appeal; and, indeed, I can see no reason to suppose that what the respondent said was not accurate. That finding involves the conclusion that the new wire over which the respondent tripped, or in which he entangled his foot, was clear of the roof of the carriage. There was certainly evidence led by the appellant that such a thing did not and could not happen by reason of the nature of the operation and the way in which tension was kept at a particular level on the drum from which the wire was unwinding. On the other hand, a Mr Nader, who was a leading linesman and 4 UNREPORTED JUDGMENTS was experienced in the work being done on 5 November 1983, but was not present on this occasion, gave evidence to the effect that the new wire might run at various heights above the carriage roof, that the work was done "depending on the foreman" while the train was moving, so long as it was going at a steady slow pace, and that, although it was possible to knock out a nail or pin from either side of the old contact wire, "it is easier to go on the correct side". So the respondent, from this source, received, it seems to me, ample support for the main features of his case. Moreover, a Mr Clarke was called by the appellant. He was then a senior linesman and was working with the respondent on the night of the injury. They were, he said, standing on opposite sides of the old wire and the respondent squatted to move to the same side of the wire as Mr Clarke was when he "clutched his knee and fell to his right." While this, of course, directly disputes one aspect of the respondent's description of how his injury happened, it certainly supports the view that men did move from side to side of the wire while the work was in progress. Moreover, in cross-examination he agreed that it was possible that the new wire "could have been somewhere on or above the level of the carriage" and, indeed also in cross-examination he expressly agreed that on a straight run workers would move from one side of the old wire to the other and that this had happened from time to time on the night of the respondent's injury. It was he also who agreed that there where general time constraints in getting the job done and he was then asked this question:- "Q. It often happens, does it not, prior to and on 5 November 1983 that the work of releasing the overhead cable from the droppers is done while the train is in motion? A. Yes." Despite Mr Kenny's earnest and detailed argument it seems impossible to justify interference with the learned judge's findings on liability so far. That leaves the final issue which is whether or not there was an alternative systems The case made by the appellant at the trial was that the men were not supposed to work while the train was in motion, but even Mr Scott had admitted that sometimes they did. Mr Kenny pressed us with decisions such as Neill v NSW Fresh Food & Ice Pty Limited (1963) 108 CLR 362 at 364, 365 and 369 and Australian Iron & Steel Pty Ltd v Krstevski (1973) 128 CLR 666 at 668-9 and 680 contending that this was a case where an alternative system required expert proof and was not within the realm of ordinary lay or judicial knowledge. I do not agree that the circumstances of this case require expert evidence of that sort. It seems to me that if men were permitted to do this work while the train was in motion, even though it was travelling slowly, and that they were required, or permitted, to move from one side of the old wire to the other and that the new wire might be at some distance above the carriage roof, all the ingredients of an unsafe system importing foreseeable risk of injury are established. Both sets of wire would be moving relative to the movement of the train; the men would be working as quickly as they could, and the risk of one of them tripping over the new wire while ducking under the old, as the respondent described, would be neither farfetched nor fanciful These conclusions themselves suggest the steps reasonably open to avoid the risk. But in any case the appellant's witnesses themselves proved the alternative system, which required the work to be done only while the train was stationary, and the men to remain on one side of the old wire. The essence of the respondent's complaint at the trial was not so much the absence of a safe system, as the appellant's failure to insist that the system it had devised was maintained. If expert evidence were required, it was given by a Mr URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM (Samuels JA) — 5 Sleiman who was qualified and to whose status as an expert no objection was taken. Lloyd Jones DCJ was certainly sceptical about some aspects of Mr Sleiman's evidence but, at least he said that a safe system, which would have been practicable, would have been to do the work while the train was stationary and the men were handling the old wire and then the new wire together Accordingly, whether expert evidence was necessary or not, an appropriate alternative system meeting the requirements was established. I turn then to the criticisms made by the appellant of his Honour's assessment of damages. I do not consider, with respect that any of them have substance save for the submission which concerns the effects upon the plaintiff of the operation of patellectomy which the learned judge thought the plaintiff would probably undergo in the future Of this procedure His Honour said:- "This operation will only make the overall future a little less bleak than otherwise but essentially, the disabilities will remain." The appellant's argument is that the learned judge failed to give proper weight to the ameliorative effects of the operation which, if properly acknowledged, would necessarily have worked a reduction in both the figure for future economic loss and that for the future component of the award for pain, suffering and loss of amenities. In support of this contention the appellant quoted the evidence of Dr Kendall who furnished a report and gave oral evidence. His Honour's views were said to be inconsistent with Dr Kendall's evidence which, according to the appellant's written submissions, noted:- "Decreasing pain, increase in mobility, and on the probabilities being better off than at present." The patellectomy would, Dr Kendall is supposed to have stated, "result in adequate stability in the knee joint for ordinary purposes outside hazardous situations." Dr Kendall's evidence upon this aspect was as follows:- Should the plaintiff come to patellectomy, what does the future hold for him, first of all, in his general mobility and pain situation and secondly in his work capacity? A. I think he will have less pain and to the extent that pain limits his mobility he will be more mobile. I still think he should not have a predominantly standing or walking occupation or one in which he has to climb ladders or squat I think he will be probably better off than he is now Q. What about the stability of the knee joint itself, should he come to patellectomy? A I think it would be adequate for ordinary purposes outside hazardous situations. Q. As far as the limitations on his employment that you expressed in the future, in relation to should he not come to patellectomy (sic) would they apply equally should he have it? A. I think he should have it. I think that the question is when...... Q. Should he come to patellectomy what will be future hold for him as far as his work situation? A. I don't think he could go back to the old job or anything like it but particularly light work with a certain amount of standing and walking, there will be the ability to sit at times, that should be possible. Q. What about labouring? A. I think labouring, meaning pick and shovel or working for the Water Board or doing a garbage collection, I think that is out. Q. What about the rotational work, involving rotation as described earlier, putting pressure on the knee? 6 UNREPORTED JUDGMENTS A. I think that is undesirable because he has, he is minus one meniscus so he has one less socket between his tibia and femur. Q. What about painting? A. Provided he does not have to climb on ladder I think, but again it is a question of calculated risk." The respondent, as I have said, was born in 1955 and was about thirty one years of age at the trial. He was a migrant, having been born in Lebanon, with little schooling and no skills other than the capacity uninjured to do labouring work and the ability, in particular, to perform the work of a linesman which he had learned during his employment with the appellant. He was, his Honour found, a stoical individual who had made efforts much above the average to rehabilitate himself. He walked and used weights on his injured leg but nonetheless he suffered a good deal of constant pain and was incapacitated, as he presented at the trial For all but sedentary work. This his Honour observed, was not easy to find; and his Honour was perfectly right to treat with scepticism the light assembly work at a bench often offered in concept by counsel for defendants, usually embellished by the freedom to stand up, sit down, or go for a little walk whenever the worker's physical needs might demand. This type of employment, one can well imagine, is not readily available. But the appellant argued, reasonably enough, that the respondent was an exceptionally hard tryer and with a patellectomy, might be able to perform some kinds of work which were rather more realistic in character. It was on this footing that awards of $65,000 for pain and suffering and the like and of $150,000 for future economic loss were attacked. However, as counsel for the respondent pointed out there is evidence which the learned judge accepted that net comparable earnings were $323.41 per week. This figure, projected to age sixty five at 30%, would yield $351,928.00 which discounted by fifteen per cent for contingencies, would become $307,139. His Honour, in a very detailed and careful judgment, made this calculation and arrived at this result. Accordingly, the figure he ultimately selected, namely $150,000 seems, as counsel for the respondent suggested, to involve the conclusion that the respondent had lost fifty per cent of his future earning capacity or thereabouts. There is an alternative way of checking his Honour's assessment. The respondent was in employment at the time of trial teaching Arabic to young Moslem children and earning $100 net per week. The duration of this employment was uncertain. However, if one assumed that the respondent's residual earning capacity right through to age sixty five would be no less than $100 per week, the deficit would be $22, per week which, projected, would yield $223,820. Deducting fifteen per cent for contingencies would produce $190,250. To reduce this to $150,000 involves what one might regard as a solid further discount to accommodate the possibility of regular weekly earnings in excess of $100. These calculations seem to me to take up all the beneficial effects which the operation could reasonably produce. Bearing in mind the considerable pain and discomfort which the plaintiff had suffered to the date of trial, and the permanent incapacity which he would have to withstand, with or without the operation, I do not consider that, assuming the operation, the figure of $65,000 can be said to be such as to warrant the intervention of an appellate court. I do not think, as I have said, that the other grounds of challenge to the assessment of damages have substance, or need to be specifically noted. URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v GHANEM (Samuels JA) 7 In my view, the appeal should be dismissed with costs.