GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, MEAGHER JA and Hope AJA 28 October 1989, 9 November 1989 [1989] NSWCA 179 Negligence — industrial accident — employee welding braces to assembly underneath tractor — employee lying on side — spark from welding fell into ear of employee and burnt through ear drum — employee wearing standard safety helmet but not sufficient to protect ear when lying sideways — employer had had personal experience similar to that of employee and knew of importance of protecting ears — no knowledge on part of employer of problem requiring employee to work under tractor or that he was working there — HELD by judge at first instance that risk of injury to ear reasonably foreseeable but no evidence of breach of employer's duty — HELD on appeal that the evidence established breach and there should be verdict for employee. Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; McLean v Tedman (1984) 155 CLR 306 and The Minister v San Sebastian [1983] 2 NSWLR 268 discussed. (1) Appeal allowed. (2) Judgment of District Court set aside and in lieu thereof judgment for plaintiff in the sum of $25,156 substituted, to date from 9 June 1988. (3) Defendant to pay plaintiffs costs of hearing in the District Court and of the appeal. Gleeson CJ In this matter I have had the advantage of reading in draft form the reasons for judgment of Hope AJA. I agree with the orders proposed by his Honour and with his reasons for those orders. Meagher JA I agree with Hope AJA. Hope AJA The plaintiff has appealed against the dismissal of the proceedings which he brought against his employer for damages in respect of the injuries he suffered in an accident arising in the course of his employment. The plaintiff commenced his employment with the defendant in 1979, and worked in its workshop as a welder, a trade which he first began as an apprentice in about 1969. The defendant's business was for the most part concerned with tractors, only about ten per cent of its work concerning motor vehicles. The accident which caused the injuries occurred on 25 July 1981 when the plaintiff was fitting a front end loader bucket assembly to a Kubota tractor. These assemblies were designed and manufactured by a firm at Bowral and fitted by the defendant to tractors which it supplied. Subject to a modification which was required, the assembly manufactured by the Bowral firm was designed to be attached without difficulty on to the tractor. When the first of these assemblies was being fitted in the defendant's workshop it was found that a modification was required involving the fitting of braces close to the bucket to prevent undue flexing of the arms. The fitting of these braces was carried out before the assembly was fitted to the tractor and became routine work, the braces being supplied by the Bowral firm. The assembly which was being fitted by the plaintiff, together with another employee, on the day of the accident involved a problem which the plaintiff had not previously encountered. After the unit had been mounted on the tractor in the 2 UNREPORTED JUDGMENTS usual way, it exhibited an unusual swaying. The decision was made to remedy that situation by fitting braces, each about one foot long, to either side at the bottom of part of the assembly which I will call the "U-frame". Each end of each brace was to be welded on to part of the "U-frame", and no part of any brace was to be welded on to the tractor. The decision to weld these braces on to the assembly was not made by or communicated to Mr KW Murray, who described himself in his evidence as the principal in the defendant. There was no evidence that any employee of the defendant held a position such as a foreman or supervisor standing between the plaintiff and Mr Murray. Mr Murray was unaware of the problem which had arisen in respect of the particular assembly or of the means which the plaintiff and his fellow employee proposed to adopt to deal with it. There was however evidence by the plaintiff that, as well as the problems described by Mr Murray in his evidence relating to the undue flexing of the assembly arms at the bucket end, there had been problems with the assemblies which required modifications and some welding to be done which involved getting underneath the tractor and "tacking on" a few parts. Electric arc welding of the kind which the plaintiff proceeded to use produces a shower of sparks each of which is a glowing particle of metal. Welders need to be protected from injury from these sparks and for this purpose welding helmets were available, including a type which conformed to a recognised Australian standard. The plaintiff thought that the helmet which he had been provided with and which he was wearing was of an older type which did not go round his ears, but evidence given by Mr Murray and an expert Mr Fox, and accepted by Badgery-Parker DCJ, before whom the trial took place, established that the helmet was the current Australian standard helmet. Mr Fox gave evidence that he had never seen a helmet the design of which was such that it did not cover the wearer's ears, but almost immediately after this evidence was given the helmet which had been tendered, and which was the same kind of helmet as that which the plaintiff had worn, was placed on the plaintiff's head in court, and Badgery-Parker DCJ had it noted that the plaintiff's ears protruded out at the rear of the helmet. The learned judge found that a helmet of that kind gave protection only to the face, eyes and ears of a welder who was welding in the usual fashion with his work in front of him and his head in a more or less upright position, but that it did not adequately protect the ears should the welder work with his head on the side. In that situation a spark, coming from in front and going above the side of the welder's head, could, if it lost momentum at the right instant, drop into his ear. This his Honour found was what happened to the plaintiff. The spark dropped into his right ear and burned through the ear drum. Badgery-Parker DCJ further found that the extra braces could possibly have been welded on to the "U-frame" after first dismantling the newly attached bracket assembly from the tractor so that the welding could be done on the floor or on a bench, but that such a process would have taken a long time, possibly as much as a day, with no certainty of success in solving the sway problem. He also found that the work could most conveniently have been done by driving the tractor over a pit or elevating it over a hoist. No pit was available in the workshop and although there was a hoist there it was intended only for use and ordinarily was used for work on motor cars. Mr Murray said he had never seen it used for a tractor and agreed that it was not suitable for use for a tractor, nor had it ever been suggested to the plaintiff that it could and should be used for tractor work if necessary. His Honour said that "The plaintiff elected to weld the braces onto the U-frame while the latter was still mounted on the tractor" and "He did not URJ | GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD (Hope AJA) 3 consider the possibility of using the hoist". Presumably his Honour used the word "elected" to mean that the plaintiff decided to weld the braces on to the "U-frame" in the way he did without reference to Mr Murray, or indeed to anybody else except possibly the fellow employee who was working with him. His Honour further found - and this accords with the plaintiff's evidence - that the location at which the welding had to be done could only be reached by the plaintiff lying on his side underneath the tractor. The evidence established that the welding work required the use of both of the plaintiff's hands, and that he had to lie on his side because of the nature and location of parts of the tractor near where the work had to be carried out. It was the carrying out of the work whilst lying on his side that left the plaintiff vulnerable to the dropping of a spark into his right ear. His Honour said that, while it was certainly not unknown for welding work to be carried out on the under-side of tractors, that work could ordinarily be done by sitting, kneeling or squatting beside the tractor. As I have already indicated, the plaintiff gave evidence that some of the models of the kind on which he was working had problems which required modifications and welding involving getting underneath the assembly. Mr Murray gave evidence that it would be possible at times that it would be necessary to carry out welding underneath a tractor in order to put attachments on to it and that possibly at times a mechanic would have to get under a tractor to do welding work. With respect to his Honour, there was no evidence that welding work carried out on the under-side of the tractor could ordinarily be done by sitting, kneeling or squatting beside the tractor. The plaintiff gave evidence that the ideal way in which he would have done the job he had undertaken would have been to stand underneath the tractor or to kneel to do it, and that lying in a horizontal position was not an ideal way of doing it. This evidence was followed immediately by the plaintiff saying that the advantage of being in an upright position was that the welder had more control over his stance, to stand steady to do the job, to support himself and support the actual machine he was using, it being a lot easier being in an upright position instead of lying on one side. In cross-examination he denied that he could have done the job easily by sitting on a box or stool or some such thing. The evidence as to the ideal conditions for carrying out the job did not relate to the circumstances in which the work was actually carried out; it assumed that the assembly could be put in such a position relative to the welder that he was standing underneath it or kneeling. I should say that a significant part of the defendant's case was to challenge the plaintiffs claim that he had welded the braces on to the "U-frame" at all. Counsel for the defendant expressly put it to the plaintiff that he had not welded the braces (also called brackets) as he had indicated he had done. He affirmed that he had done so. In evidence Mr Murray, when asked what he had to say about such a bracket being welded on the U-section of the frame that went under the tractor, replied that he did not know of such a bracket and when asked whether it was there or not, he answered "No it wasn't there". The defendant's case at the trial was thus primarily not that the plaintiff should have carried out the work in some other way; it was a denial that the plaintiff had done the work at all. It is apparent that Mr Murray was denying that the plaintiff had carried out the welding work which he claimed to be the cause of the accident. His Honour found that the plaintiff had carried out that work and no challenge has been made to that finding in the appeal. His Honour also found that the plaintiff had never had before to weld such a brace, the need for such a modification never having arisen. 4 UNREPORTED JUDGMENTS It was while the plaintiff was engaged in welding the braces, lying on his side underneath the tractor, that a spark entered his ear and damaged his ear drum. His Honour found that the risk of injury from welding sparks was one to which every welder was exposed and was reasonably foreseeable by every employer of welders. He also said later in his reasons that the risk of an injury in fact being sustained by entry of a spark into the plaintiffs ear was highly unlikely to be realised and it would only happen in the event that a welder undertook work in a physical position where his ordinary helmet ceased to provide adequate protection and that this would only occur if the welder lay on his side to carry out some task. I should interpolate that it is apparent that the risk would be the same if a welder, standing upright, inadvertently or negligently turned his head, thus exposing an ear. His Honour went on to say that in the ordinary operations of the defendant, so far as the evidence showed, there was no task of such a nature. His Honour was correct to qualify this statement by the words "so far as the evidence shows". There was no evidence of any other work having been carried out by a welder lying on his side underneath a tractor, although there was evidence that welding work had been carried on underneath tractors and the plaintiff's evidence showed that in some circumstances at least this would require the welder to lie on his side. Dealing with the ways in which any risk would be obviated, his Honour said that ordinarily this would be effected by the provision of a suitable helmet such as the one which the defendant had provided but that if welding was undertaken in such a position that the operator's head was on the side, then a helmet would not be an adequate safeguard. He said that no other form of physical protection was suggested as a possibility and that the only means to avoid such a risk was to ensure that welding was never carried out in such a position. The employer might avoid the risk by giving instructions that no welding be done by the employee lying on his side coupled with the provision of facilities to remove any need for welding to be done in such a position. He said that the employer had taken neither step. He gave no instructions to avoid welding in a lying position; he did not make the hoist available in any real sense and certainly did not direct its use either generally or on the particular occasion in question. It was on the failure of the defendant to take such measures that the plaintiff relied upon as negligence. There is no doubt that no instructions or advice were given about the risks involved in doing welding work underneath the tractor, and in particular in doing any welding work underneath the tractor when the welder was lying on his side. The plaintiff gave evidence that the hoist in the workshop was a car hoist "just for lifting car vehicles or utes", and that what was needed was "a four post hoist you can drive the tractor on to". He was asked had he seen such hoists in use before and he answered "Yes they use them for heavy vehicles and that type of stuff, semi-trailers, buses, that type of thing." It was submitted for the defendant that the hoist which he said he had seen was not designed or suitable for lifting tractors but in my opinion the effect of his evidence was that there were such hoists. Later in cross-examination he said that if he could have put the tractor "up in the air it would have been over and done with in a couple of minutes". By this he obviously meant that if the tractor had been put on to a hoist and lifted into the air the work would have involved no difficulty. He also gave evidence that there was no pit or hoist or set of ramps that you could drive up on high enough to get it up off the ground to carry out work. URJ | GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD (Hope AJA) 5 Mr Murray gave evidence that a pit was not "applicable" for tractors, although it was all right for cars and things like that. A pit was not "applicable" because most tractors had narrow front wheels and wide back ones, and it was too dangerous to use a pit. He said that a pit designed to suit a tractor would have to be very narrow in the front and would not be any good, and that it would be dangerous to back the tractor over such a pit. He also said that he didn't know of any workshops which had a pit with flaps that could be removed once a tractor had been driven over it. He also said that, although his hoist could be used for tractors, it was not suitable for such a use, and indeed he had never seen a hoist that was suitable for tractors. Mr Murray gave some evidence about the danger of getting a spark from a welding operation into the welder's ear. He said that he had had an accident himself "much the same as Mr Rudge" about thirty years before, getting "a bit of stuff' in his ear. He said he was aware of the risks that can occur when welding was being done and that sparks could get into the ear and that therefore it was fairly important to have a mask that covered the ear. He said that was the purpose of the mask he provided and that it covered the ear. As I have already indicated, when the mask was placed on the plaintiff's head, his ears protruded out at the rear of the mask. It was in these circumstances that his Honour had to decide whether the defendant owed any duty to the plaintiff and if so whether there had been a breach of it. The defendant's case was that assuming a duty - and the existence of a duty was not really challenged - the evidence did not establish that the defendant had committed any breach of its duty. In coming to his conclusion that the plaintiff had not established a breach of its duty by the defendant, his Honour said: "The response which a reasonable employer must make to a foreseeable risk of injury may vary according to the degree of likelihood that the risk will in fact be realised as well as with the degree of seriousness of the injury which may be foreseen as likely to result. It is not necessarily negligence to disregard a foreseeable risk. The risk of an injury in fact being sustained by entry of a spark into the plaintiff's ear was highly unlikely to be realised. It would only be so in the event that a welder undertook work in a physical position where this ordinary mask ceased to be adequate protection. That would occur only if the welder lay on his side to carry out some task. In the ordinary operations of the defendant, so far as the evidence shows, there was no task of such a nature. It would be unreasonable to regard in those circumstances the failure to give a general instruction as negligent. The circumstances which arose on the day of the accident were unusual. The evidence does not show that they were ever brought to the notice of the employer or any person in authority over the plaintiff. The employer could not know of their existence or the likelihood or possibility of their coming into existence unless told. It would be unreasonable to expect the employer to have dealt with a one off situation of which the employer was unaware. Further it would be unreasonable to require such a degree of supervision on the part of the employer as would have made the employer aware of what the plaintiff was proposing to do, notwithstanding that the plaintiff informed no one of it. Reasonable care does not require supervision of an experienced employee every second of the day." In reviewing his Honour's conclusion, it is appropriate to consider the answer which Mr Murray gave in evidence to the allegations made by the plaintiff. In his evidence in chief he gave three answers: 6 UNREPORTED JUDGMENTS (a) The hoist which he had installed in his workshop, which was reconstructed at about the time when the plaintiff began his employment with the defendant, was capable of lifting tractors. (b) The plaintiff had not welded braces on to the "U-frame" as he claimed. (c) The helmet with which the plaintiff was provided was an approved welding mask. In cross-examination he agreed that for a variety of reasons the hoist was not suitable for use for a tractor. He also described a difficulty that had been encountered with the bucket assemblies but which had been remedied when the first one was delivered. This involved a modification which was carried out in accordance with a "blue print" system and which created no problems. This was not the problem which the plaintiff encountered and had dealt with. He said that there had been this additional problem with another type of assembly called a "Same" assembly, but he denied that this problem existed on Kubota assemblies and he affirmed his evidence in chief that no such problem had arisen. He then gave evidence about the helmets provided in his workshop and denied that any other type had been used at any relevant time than the one in evidence. He agreed that there were a large number of types of welding helmet but that he had a particular preference for the model which was so used in the workshop. He then gave evidence about his having got a "bit of stuff' in his own ear on one occasion and the importance of having a helmet which covered the ear to which I have previously referred. He was later asked by his Honour whether the helmet would cover the ears in such a way as to make it impossible for fragments to enter the ears. He replied that "It would have to be a fluke, it would hit the side of it and go back in behind it, or some sort." He was then asked by counsel for the plaintiff whether he was saying that if somebody was welding with the helmet and was lying on his side welding above him the spark would have to "come down and effectively turn under the helmet." His reply was: "Tt would have to go further and back again." Mr Murray also said in cross-examination that it would be impracticable and indeed dangerous to use a pit to carry out work underneath a tractor. It is apparent that his Honour rejected much of the evidence of Mr Murray. In the first place his Honour accepted that the plaintiff had suffered the injury to the ear in the way in which he described, namely, when he was welding braces to the "U-frame", lying on his side underneath the tractor. This finding accepts the plaintiff's evidence and rejects Mr Murray's evidence. Nextly he found that the work which the plaintiff had to carry out could most conveniently have been done by driving the tractor over a pit or elevating it over a hoist. This conclusion involves a rejection of Mr Murray's evidence that it was impracticable or dangerous to drive the tractor over a pit, and that he had never seen a hoist that was suitable for tractors, and an acceptance of the plaintiff's evidence. Again his Honour's finding that the helmet protected the ears of a welder when his head was more or less in an upright position but did not adequately protect the ears should the welder work with his head on the side because a spark coming from in front and passing above the side of his head could, if it lost its momentum at the right instant, drop into his ear, is inconsistent with the evidence given by Mr Murray that the spark would have to fall, strike a part of the ear, and turn in the direction of the ear drum. Again this finding as to how the spark fell into the plaintiff's ear seems to be inconsistent with Mr Murray's evidence that the helmet covered the ear of the welder wearing it. URJ | GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD (Hope AJA) 7 It was submitted by counsel for the defendant that his Honour was in error in making findings of fact contrary to the evidence given by Mr Murray, having regard in particular to the length of Mr Murray's experience in the business of welding and running a welding workshop. Despite the strength with which this submission was put I do not accept it. No challenge has been made to his Honour's finding that the accident occurred as the plaintiff described. Mr Murray clearly rejected this claim of the plaintiff, and indeed the plaintiff was cross-examined at some length to suggest that the accident had not occurred in the way he had described in his evidence. It was submitted for the defendant that Mr Murray was not in truth alleging that the accident had not occurred in the circumstances which the plaintiff gave evidence about. In my opinion he clearly was, and in this regard his evidence was rejected by his Honour and the evidence of the plaintiff was accepted. Mr Murray was thus an unreliable witness, and I can see no reason why his Honour should not have preferred the evidence of the plaintiff in respect of those matters where his evidence was accepted and the evidence of Mr Murray rejected. It thus appears that Mr Murray gave no evidence as to the way in which the welding work which the plaintiff carried out could be carried out safely, save by the wearing of the helmet. Mr Murray knew very well about the risk of a welder getting a spark in his ear and affirmed the importance of having a helmet that covered the ear. His answers on these matters were not further investigated, but when Mr Murray said that he had had an accident "much the same as Mr Rudge" which resulted in him getting "a bit of stuff' in his ear, he must have meant that a spark fell into his ear when his head was positioned sideways to the direction in which the sparks were flowing. Despite his knowledge that it was important to prevent such an accident by having a helmet that covered the ear, two things at least appeared from his Honour's findings in the present case. First the spark did fall directly into the plaintiff's ear and second the helmet did not cover the plaintiff's ear sufficiently to prevent that happening. Although the helmet was a standard one, its design was not such as to prevent the occurrence of a serious accident the danger of which Mr Murray knew only too well because he had suffered such an accident himself. Thus, although the plaintiff was required to attach the assembly in an effective manner to the tractor, Mr Murray had no suggestion in his evidence as to how the plaintiff could or should have carried out that task in respect of an assembly which had the problem with which the plaintiff had to deal. There is nothing to suggest that he would have had any answer if the plaintiff had gone to him and asked what he should do. Other possibilities as to the way in which the work could have been carried out appeared in the evidence of the plaintiff. It was his evidence that an appropriate hoist or pit could have been used, had they been available, and his Honour accepted this evidence despite the contradictory evidence of Mr Murray. The remaining possibility was to detach the assembly from the tractor and carry out the work of installing the braces to the U-frame on the floor of the workshop or on a bench. However his Honour, in my opinion properly, discounted this possibility by saying that such a process would have taken a long time, possibly as much as a day, with no certainty of success in solving the sway problem. There thus remained, apart from the way in which the plaintiff in fact carried out the work, the placing of the tractor over a pit, had there been one, or the lifting of it on to a hoist had a suitable hoist been available. Mr Murray said both courses were unsuitable, but his Honour rejected this evidence. There was no evidence from Mr Murray or otherwise in the defendant's case about the expense of a 8 UNREPORTED JUDGMENTS suitable pit or hoist, and it was the evidence of the plaintiff that he had seen hoists installed and used for the lifting of tractors. As I have already indicated, no warning or instruction was given by or on behalf of the defendant to the plaintiff in respect of carrying out welding work underneath a tractor, nor was any warning or advice given to him in respect of the deficiency of the helmet in the case of a welding operation being carried out in such a way that a spark would get into the welder's ear. Badgery-Parker DCJ decided the case by applying the test enunciated by Mason J in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47-48. Having discussed the question of duty and having said that ".. when we speak of a risk of injury as being 'foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.", his Honour went on to discuss the question of breach, the question as to whether there was a duty having been considered. His Honour said: "If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way or response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." In McLean v Tedman (1984) 155 CLR 306 at 313, Mason, Wilson, Brennan and Dawson JJ said: "The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer...". Earlier in their judgment their Honours had dealt with the obligation of the employer to take account of the possibility of negligence or inadvertence on the part of an employee. At 311-312 their Honours said: ".,. itis not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence... The employer is not exempt from the application of this standard vis-a-vis his employees... the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk." URJ | GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD (Hope AJA) 9 This passage was cited with approval in the judgment of Mason CJ and Deane Dawson and Toohey JJ in Bus v Sydney County Council (1989) 85 ALR 577 at 585. Immediately before quoting this passage their Honours said that since the decision in Sydney County Council v Dell'Oro (1974) 132 CLR 97 the law had progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of a person to whom a duty of care is owed and that possibility is now recognised as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists. While it is true that the test of foreseeability in relation to breach is narrower than that to be applied in deciding whether there is a duty of care, it is nonetheless wide enough in my opinion to cover the present case. In The Minister v San Sebastian [1983] 2 NSWLR 268 Glass JA, in discussing the concept of reasonably foreseeable possibility, said at 295-296: "Coupled with this a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular. The proximity upon which a Donoghue type duty rests depends upon proof that the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter... The breach question requires proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against the defendant might cause damage of some kind to the plaintiff's person or property... Of course, it must additionally be proved that a means of obviating that possibility was available and would have been adopted by a reasonable defendant... The remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant... ". Unusual though the type of accident which led to the plaintiffs injury-may have been in a welding workshop, it was reasonably foreseeable that the absence of a safe system of work and a safe place of work might cause damage of some kind to a welder employed in the workshop, it was proved that a means of obviating that possibility was available and it was proved that the kind of damage suffered by the plaintiff was foreseeable as a possible outcome of the kind of carelessness charged against the defendant. The critical question is whether a means of obviating the possibility of injury to the plaintiff would have been adopted by a reasonable employer. His Honour concluded that it would be unreasonable to expect the defendant to take any steps to avoid injury by such an accident for four reasons: (1) The defendant did not know of the problem which required the plaintiff to carry out the welding work in the way he did; (2) The defendant could not know of the likelihood or possibility of the circumstances coming into existence unless told; (3) It would be unreasonable to expect the employer to have dealt with a one off situation of which he was unaware; (4) It would be unreasonable to require such a degree of supervision on the part of an employer as would have made the employer aware of what the plaintiff was proposing to do, notwithstanding that the plaintiff told nobody about it. With respect to his Honour, it seems to me that he has not taken sufficient account of the danger from sparks to the ears of welders which the provision of a suitable system and place of work would have prevented and that he has reduced the degree of likelihood of the event occurring to an unacceptable level. 10 UNREPORTED JUDGMENTS Mr Murray knew of the danger; he had suffered himself because of it, and in the same way as the plaintiff had suffered. He was aware that there was a possibility that welders would have to work underneath tractors, and it was the plaintiff's evidence that such occasions had arisen with respect to the assemblies on which he was required to work. Welding was one of the principal activities in his workshop. Unusual though such an occurrence might be, it was one which Mr Murray thought he must meet by the provision of suitable helmets, that is, helmets covering the ears. Contrary to his view, the helmets, although of a standard type, were inadequate to safeguard against the danger which led to the plaintiff's injury, being the danger which Mr Murray knew had to be guarded against. Furthermore, although the plaintiff did not tell Mr Murray about the problem that had arisen and the way in which he proposed to deal with it, it appears from Mr Murray's evidence that there was no advice or instruction he would have given to the plaintiff save to wear the helmet. Apart from any other safeguard, on his Honour's findings a suitable hoist could have been provided in the workshop for the purpose of carrying out work underneath tractors which would be required to be done from time to time by employees, including the plaintiff, working in the workshop. No acceptable reason has been proffered for the defendant why such a hoist could not have been provided to deal with this foreseen danger and, as it seems to me, it was a precaution which a reasonable employer would, and would be expected to, take. I have accordingly concluded that the plaintiff has established a breach on the part of the defendant and that he was entitled to a verdict. The next question concerns contributory negligence. It was submitted for the defendant that if it was guilty of negligence the plaintiff was guilty of contributory negligence and that his degree of responsibility for the damage which he suffered was considerably greater than the responsibility of the defendant. If the plaintiff was guilty of contributory negligence it must have been because he carried out the work at all, because he carried out the work lying on his side underneath the tractor, or because he did not consult with Mr Murray before carrying out the work. It was the plaintiffs job to attach the assembly to the tractor, and in my opinion, if some deficiency appeared in the assembly after attachment, it was, subject to the question whether he should have consulted Mr Murray, his duty to remedy the defect. For the reasons which I have already given, the evidence establishes that in the light of the facilities available in the workshop, there was no other practicable way in which the work could have been carried out than the way in which it was carried out by the plaintiff. It also appears that Mr Murray would not have suggested or directed any other way of doing the work that would have been practicable. In these circumstances I do not consider that the plaintiff was guilty of any contributory negligence in carrying out the work in the way that he did. He appears to have been a conscientious worker, alert to the problem of swaying which appeared in the assembly after it had been attached to the tractor, and properly concerned to remedy that defect before the tractor left the workshop. The problem could and should have been foreseen and provision made for it by the defendant, and I do not think that the plaintiff was at fault in what he did. The question then arises as to damages. Badgery-Parker DCJ did not assess damages but the parties have asked that this Court do so in the event that it found the defendant guilty of negligence. The ear drum of the plaintiff's right ear was pierced by the spark and in the result he has lost 23.9 per cent of the hearing of that ear. This was agreed to by counsel URJ | GG RUDGE v MURRAY TRACTORS IMPORTERS PTY LTD (Hope AJA) 11 for the parties at the commencement of the hearing, and is the figure to be found in the report of Dr Gorshenin of 6 November 1984 provided to the defendant's solicitors. As a result of the injury the plaintiff suffered an aggravating pain continuously for some time. He had problems with cold air getting into his ear and also difficulty with water. If he got water in his ear he said that he got a terrible pain in it. He had an operation in February 1982 to graft skin from his scalp over the ear drum but it failed. He had a further operation for the same purpose in March 1985 and it again failed. The hearing deficit is both a disability and an embarrassment. He has difficulty in hearing unless he turns his left ear to people speaking to him, and he also has difficulty when there is background noise such as workshop noise, a motor car running or other people talking nearby or a radio or television turned on. If things are quiet, and he is lying on one ear, he hears a noise like a wind or light rain drumming in his ear. He is asthmatic and gets cold from time to time and that causes a pain similar, he said, to a tooth ache on the top of his head. His hearing loss is permanent but it is possible that further surgery, particularly if new techniques are developed, could improve it. Understandably the plaintiff is not happy at the prospect of further operations. The only economic loss suffered by the plaintiff is covered by workers' compensation payments, which also cover medical expenses. The total amount of the workers' compensation payment was $6,054.23. This amount will have to be included in the assessment of damages but then deducted pursuant to s63(5) of the Workers' Compensation Act. As regards general damages, the plaintiff's loss is a significant one and subject to the possibility of some mitigation by future operative procedures, will be with him for the rest of his life. He was born on 18 June 1953 and was thus twenty-eight at the time of the accident and just on thirty-five at the time of the judgment. In all the circumstances I have concluded that the sum of $20,000 would be an appropriate amount to award the plaintiff for general damages. Of this amount I would assess $10,000 as the appropriate amount for the pre-judgment period. A period of six years and ten and a half months elapsed between the date of injury and the date of judgment. The plaintiff has claimed interest and in my opinion he is entitled to it. I would accordingly award interest on the sum of $10,000 at seven and a half per cent per annum for a period of six years and ten and a half months which amounts to $5,156. Assessing the plaintiff's damages (excluding interest) at $26,054.23, deducting the sum of $6,054.23 as being workers' compensation received by the plaintiff, and adding interest in the sum of $5,156 produces the sum of $25,156, which I have concluded should be the amount awarded to the plaintiff. In my opinion the appeal should be allowed and the judgment of the District Court set aside. In lieu thereof judgment for the plaintiff in the sum of $25,156 should be substituted, to date from 9 June 1988. The defendant should pay the plaintiff's costs of the hearing in the District Court and of the appeal. Counsel for Appellant: PE BLACKET (JP GORMLY) Solicitors for Appellant: TURNER FREEMAN Counsel for Respondent: AR ASHBURNER Solicitors for Respondents: HD McLACHLAN CHILTON