ARCHIBALD WALTER SMITH v THIESS CONTRACTORS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and Hope JJA 27 October 1989, 27 October 1989 [1989] NSWCA 6 EMPLOYER AND EMPLOYEE employee's claim against employer for damages for negligence — employee alleges unsafe system of work claim fails on facts at trial — on appeal, no error by trial judge apparent — no new matter of principle — appeal dismissed. Priestley JA This appeal is from a decision of his Honour Judge Ward in the District Court pursuant to which he entered judgment for the defendant. The claim the plaintiff had made was that injury he had suffered while working for the defendant had been caused by the defendant's negligence. The injury occurred on 4 January 1982. At that time the plaintiff was working as a skilled tradesman for the defendant at and near the Liddell power station. His actual employment was as a fitter welder and motor mechanic and his duties were mainly the repair and maintenance of heavy duty equipment. The machinery upon which he was working when he was injured was a Coles crane. It had broken down about four miles from the power station in a place which was described in the evidence as being "in the bush". He had been asked by his employer to go and do the necessary repairs upon it to get it working once more. When in working condition it seems that the crane was mobile and capable of moving under its own power. The problem with it appears to have been oil leaks which had the effect of allowing oil to escape on to and under the crane. The day when the injury happened was the third day on which the plaintiff had been working on this particular crane at this place out in the bush. He was accompanied by a person described as a TA which means "tradesman's assistant". The evidence shows that this man's job was to help the plaintiff in doing whatever cleaning jobs and jobs ancillary to that of the tradesman himself that the tradesman asked him to do. The crane is shown in photographs which were tendered in evidence. I think the crane in the photographs was explained as being not the actual crane from which the plaintiff fell but one of precisely the same make. The photographs show that at the front and back of the crane there were metal steps at the top of which were handrails to enable people to get on to the working platform of the crane. It appeared from the plaintiff's evidence that he had been working on this working platform during the three days of his working on the crane and that his job involved him in going up and down the steps quite frequently. On the third day he fell backwards from the steps and suffered quite severe injury. In bringing proceedings against his employer seeking damages for negligence he caused a statement of claim to be filed in which a number of particulars of negligence were set out. The ones relevant for the appeal stated in various ways that the defendant had failed to provide for the plaintiff a system of work reasonably safe in the circumstances in which the plaintiff was required to work. The particulars alleged that the plaintiff was required to use the steps to the crane 2 UNREPORTED JUDGMENTS when they were in an oily and unsafe condition, that the plaintiff was required to carry the work out in the bush at a site where no proper facilities were available for doing the work, that the employer failed to cause the crane to be returned to its workshop where the work - it was said - could be more safely done, and that the employer failed adequately to supervise the plaintiff in performing his work. Judge Ward dismissed the plaintiff's claim on two main bases. The first was that, having heard the plaintiff's evidence, he was not satisfied of precisely how it came about that the plaintiff had fallen. The second, and principal, ground upon which Judge Ward dismissed the claim, however, was that, in his opinion, the plaintiff had been provided with a reasonably safe system of work by the employer. As I am of the same opinion on this principal ground, I will simply say why I think the system of work provided was reasonably safe and briefly indicate why the alleged negligence does not seem to me to have been established. What appears to have happened is that, in the course of working over the three days that he did on the crane, oil which was leaking from the oil seals and which had been present both on the platform and underneath the crane and in other unspecified places around the crane got on to both the handrails and the steps by which the plaintiff was going up and down to and from the platform. Also, according to him, and it would seem to be very likely, his hands became oily from time to time and there was oil also on his boots. These were steel-capped boots. Whatever the precise details of his fall may have been his case, in general terms, was as he was going up the steps, because of the slippery state in which both his hands and his feet were and also the slippery state of the handrails and the steps themselves, he suddenly and unexpectedly fell backwards from the steps. I do not think his counsel today sought to put the actual circumstances of the accident any more precisely than that. Accepting that basis, however, I nevertheless do not see that the plaintiff established against the defendant that the system of work provided was not reasonable. I base this particularly on the provision of the tradesman's assistant with a goodly supply of rags. It is quite plain that one of the duties of the tradesman's assistant was to comply with any request made by the plaintiff to use the rags to remove oil from any place where it might be thought to cause any danger. The employer had provided the tradesman's assistant to carry out functions precisely of this kind. For the plaintiff it was argued that, on the evidence, the provision of the rags to deal with the oil was not effective. The plaintiff gave some evidence that use of the rags was not able to remove all the oil. If there was any factual foundation for the assertion that the failure of the rags to remove the oil had left the steps and the rails in a condition of slipperiness causally related to the plaintiffs fall, then my opinion might be different. However, on the evidence before the court, I cannot see how the court could conclude that there could be the alleged deficiency in the capability of the rags to put the steps and rails in a reasonably non-slippery condition. The explanation which the plaintiff attempted in evidence is one that I am unable to understand and I think the failure to understand is because the plaintiff was attempting to explain something that was not really explicable. To my mind the kind of condition he described as being the slipperiness that brought about his fall was exactly the kind of condition which the tradesman's assistant would have been able to deal with by use of the materials with which he was provided, so my primary conclusion on the evidence is that the plaintiff did not show in his case URJ ARCHIBALD WALTER SMITH v THIESS CONTRACTORS PTY LTD (Hope AJA) 3 that there had been any negligence by the employer in the system of work which was provided for the plaintiff in the course of this employment. This conclusion seems to me to answer the particular heads of negligence alleged by the plaintiff. The first, that the plaintiff was required to climb on the steps when they were in an oily and unsafe condition, does not seem to me to be justified once it is accepted that the plaintiff had been provided with simple means of putting the steps in a non-slippery condition. Similarly, the allegation that the employer should have seen to it that the crane was taken back to the workshop before the repair work was done, has no validity once it is accepted that the working conditions provided in the bush were themselves reasonably safe. Finally, the allegation that there was a failure to supervise the plaintiff adequately in performing his work fails in the light of the conclusion I have reached concerning the adequacy of what was provided for the plaintiff by the defendant. Accordingly, without approaching the matter in precisely the same way as the trial judge did, it seems to me that the appellant has not made out any of its grounds of appeal and no reason has been shown for disturbing the judgment entered by the trial judge. The trial judge had gone on to deal with the question of damages in the event that he was proved to be wrong in his view the plaintiff was not entitled to judgment. We have not heard submissions on damages from either party. The court took the view that if the appellant failed to persuade the court that the defendant should be held liable, there was no good purpose to be served by embarking upon any examination of the damages question. In my opinion the appeal should be dismissed with costs. Meagher JA I agree. Hope AJA I agree. The order of the court is that the appeal is dismissed with costs. Counsel for Appellant: T Christie Solicitors for Appellant: Dear and Lonergan Counsel for Respondent: L Stone Solicitors for Respondent: McCaw Johnson