FAJKA v AQUILA STEEL COMPANY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and HANDLEY JJA 2 July 1990, 13 December 1990 [1990] NSWCA 60 PRACTICE — expert evidence — obligation under Pt36 R13A to serve expert report in advance of trial — on second day of trial counsel for plaintiff in personal injuries action seeks to call expert engineer on the issue of negligence — no written report served or obtained — trial judge (Maxwell J) refuses application — in default of expert evidence enters judgment for defendant and discharges jury — after judgment plaintiff's solicitors receive service by post of expert report provided by defendant — existence of such report not disclosed to trial judge — whether evidence of the existence of such report should be received by Court of Appeal — whether retrial should be ordered — held: (Kirby P and Handley JA; Priestley JA expressing no opinion) (1) The Court should not receive the further evidence in the circumstances. Radnedae v Government Insurance Office of New South Wales (1987) 9 NSWLR 231 applied; Meek v Fleming [1961] 2 QB 366 distinguished; (2) (per Kirby P) Even if such evidence were received and the discretion were exercised afresh, no different conclusion would be reached; (3) Discussion by Kirby P and Handley JA of the purposes and requirements of the Rule obliging service of expert reports before trial. NEGLIGENCE — employer's alleged negligence — plaintiff's back injured while lifting a bundle of steel rods to a work bench — rods with hooks prone to ensnarement in other rods whilst being lifted — absence of expert evidence of an alternative system of work — evidence of availability of crane — absence of earlier complaints — held: (Kirby P and Priestley JA; Handley JA dissenting) (1) There was evidence which, if believed could justify a conclusion of negligence — accordingly the issue of the employer's liability should have been left to the jury. Hamilton v Nu-Roof (Western Australia) Pty Ltd (1956) 96 CLR 18; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 applied; Malaxechevarria vy Sabemo Pty Ltd (Full Court, NSW) unreported, 24 September 1963) considered; (2) (by majority) New trial ordered. Supreme Court Act 1970, s75A(8),75A(9). Supreme Court Rules, Pt35, RI3A. Kirby P The facts are stated in the reasons of Priestley and Handley JIA. Two questions are raised by the appeal. Application to receive fresh evidence after trial The first question is whether this Court should permit the appellant to adduce further evidence on the appeal. The proposed evidence is contained in an affidavit of the appellant's solicitor. It deposes to his receipt by post, after the trial had concluded in a verdict directed in favour of the respondent, of an expert report prepared for the respondent's advisers. That report had been procured in advance of the trial. It was served, belatedly it seems, pursuant to the Rules. Its existence was not known to the appellant's representatives when they were arguing that Maxwell J should permit them to call an expert engineer, Mr Boris Osman, to give evidence on the issue of negligence. It was common ground that no reference was made to the existence of the expert report in the possession of the 2 UNREPORTED JUDGMENTS respondent when the argument on this issue took place before Maxwell J. It was not suggested that this failure to disclose the existence of such a report evidenced conscious duplicity or deception on the part of the respondent's representatives. It could hardly have been so as the respondent's solicitor knew that the report would be served by post. We were told that the respondent's advisers assumed that the report had already been received. Indeed, it was their assumption that it was the receipt of their expert's report which had triggered the belated application on behalf of the appellant to call an expert of his own. What ensued was an example of mutual mistake. The fact remains that no reference was made, before Maxwell J, to the existence of an expert report in the hands of the respondent. I have no doubt that its existence would have been a relevant consideration to the exercise by Maxwell J of his discretion whether to let the appellant adduce expert testimony, although no expert report had been tendered for the appellant in advance of the trial. The possession by the respondent of its own report may not have caused Maxwell J to alter his mind. But it was clearly a relevant fact. In retrospect, it can be said, that it ought to have been disclosed to his Honour. If the evidence in the solicitor's affidavit can properly be received by this Court, it would constitute proof of the existence of a fact which was relevant to the exercise of the discretion but which, through nobody's particular fault, was not revealed to the trial judge and thus not taken into account by him in reaching his conclusion. Requirements for the receipt of post-trial evidence The difficulty in the way of the tender of this evidence to this Court is presented by the holding of this Court in Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. That was also a case which concerned an application to call fresh evidence to support a plaintiffs appeal. The evidence tendered related to a happening which had occurred after the trial. It was said to demonstrate a substantial injustice to the appellant which would only be cured if the evidence of the development since the trial were admitted at the appellate rehearing. I favoured the admission of the evidence. I pointed to the enhanced power of this Court under s75A of the Supreme Court Act 1970 to conduct a rehearing and to receive further evidence. However, the majority of the Court (Mahoney JA, with whom Glass JA agreed) refused. Their Honours stressed the very limited circumstances in which the Court would admit such evidence. It would only be admitted to meet some insistent demand of justice". Greater Wollongong City Council v Cowan (1955) 93 CLR 435, 444. Out of respect for finality of Court decisions, its admission would be "extremely rare". See Mulholland v Mitchell [1971] AC 666, 679. One circumstance acknowledged as constituting a ground for such admission was where it could be shown that some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant". See Lord Wilberforce in Mulholland, ibid, 679. S75A of the Supreme Court Act draws a distinction between "evidence concerning matters occurring after the trial or hearing and other evidence. See s75A(9). In the present case, the evidence tendered concerns matters which had occurred before the trial or hearing, although not coming to the notice of the appellant's representatives until after the trial or hearing. Accordingly, it does not fall within the exception to the operation of s75A(8) provided by s75A(9). For this reason, by force of the preceding subsection, the Court is instructed by Parliament not to receive further evidence except on special grounds. URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Kirby P) 3 Mahoney JA in Radnedge explained the rigorous stand which the courts have, for a long time, taken in respect of the receipt of such evidence and in defence of the finality of litigation. See ibid, 251: "The admission of evidence as to pre-trial facts was always seen as subject to strict requirements. Under the original English rules, pre-trial facts could be proved only with "special leave of the court': O58 R4. And the decision subsequently given, against the background of this and other statutory provisions and rules, established the general principle that the discretion to admit this class of evidence should be exercised only if the evidence could not have been obtained with reasonable diligence for use at the trial; if there was an appropriately high degree of probability that, produced at the trial, there would have been a different verdict; and if the evidence be appropriately credible." I consider that it is appropriate to take into account the fact that the evidence tendered here stood at the margin between s75A(8) and 75A(9). I therefore proceed to apply the three tests stated in Radnedae. The fresh evidence tendered should not be received By the first of those tests, I do not believe that it can be said that the particular evidence which the appellant wishes to tender could have been obtained with reasonable diligence for use at the trial. The appellant had no access to the respondent's materials. But for the special requirement of the Rules the appellant would never have known that the material was in the possession of the respondent. But for the Rules, the material, being prepared in anticipation of the litigation would have attracted legal professional privilege. It would have been immune from production upon discovery. Therefore, the first test is satisfied. The third test is equally satisfied. The evidence is "appropriately credible". There is no doubt that the respondent had an expert's report. Equally, there is no doubt that the appellant's representatives knew nothing about it when their application to call Mr Osman was before Maxwell J. That leaves the second question. Is there an appropriately high degree of probability that, produced at the trial, the evidence would have resulted in a different verdict? To reach that conclusion requires two steps to be taken. The first is that Maxwell J would have arrived at a different conclusion on the application to call Mr Osman. The second is that Mr Osman's evidence would have tipped the scales and produced the evidence of negligence otherwise so manifestly missing-from the appellant's case. It would thus have kept his claim before the jury and produced a jury verdict in his favour. Importance of the rule on serving expert reports Pt35 R13A works a revolution in the adversary trial which is a particular feature of our administration of justice. It requires the service of expert reports in advance of the trial. It forbids oral evidence in chief of any expert unless that evidence is covered by a report served in accordance with the Rule. It gives the Court a discretion, in exceptional cases, to depart from these primary rules. Departure may also occur with the consent of the parties which was absent here. Because it represents such a departure from the ordinary procedures of adversary trial, it is important that the Court should faithfully implement the provisions of the Rule in order to ensure the achievement of its purposes. Clearly, these were to cut down "trial by ambush" which was such a characteristic of adversary trial as traditionally conducted; to permit the parties to obtain pre-hearing instructions from their own experts based upon the opinions of those of their adversaries; to prepare well targeted cross-examination concerning the 4 UNREPORTED JUDGMENTS opponent's expert opinions; and to allow for the proof of facts considered relevant by the experts for the expression of their opinions. These objectives of the reformed procedure of the Supreme Court in cases where damages are claimed in respect of... personal injuries" would be frustrated if, notwithstanding the failure to supply an expert report, a party were permitted to tender the expert's oral evidence. Not only would this be in breach of the terms of the Rule, it would frustrate the achievement of the Rule's plain objects. The other party would have had no opportunity for a prior consultation with its expert. It would not have been in a position to prepare for cross-examination in an effective way. It would not have had the advantage of access to the opinion to permit precise cross-examination of the plaintiff designed to undermine the factual premises upon the basis of which the expert opinion was expressed. All of this could be highly prejudicial, particularly in a jury trial. Even to the time of the hearing of the appeal in this Court, the representatives of the appellant had not obtained a written opinion from Mr Osman. It was not possible to us to weigh Mr Osman's opinion and compare it to the opinion obtained (and belatedly served) by the respondent. It is therefore speculation to consider whether Mr Osman's opinion would have covered the same issues as those dealt with in the report of Dr Harrison, the expert retained by the respondent. It is just as possible that Mr Osman would have dealt with different issues of expertise as that he would have dealt with exactly the same. It is for the appellant affirmatively to show that the exceptional course should be adopted by the Court of permitting him to adduce fresh evidence. Even if it is not necessary to show that that evidence was of a decisive character", it must clearly be shown that "special grounds" have been made out as s75A(8) contemplates. The appellant has not discharged that obligation. I cannot affirmatively say that Maxwell J, had only he known of the report of Dr Harrison, would have reached a different conclusion. The evidence of the existence of Dr Harrison's report and its contents may not therefore be received in determining this appeal. Conclusion: refusal to allow expert testimony was right Even if Maxwell J's discretion had been shown to have miscarried, by his omission to take into account a relevant fact which was not before him, and it fell to this Court to exercise the discretion, I would reach the same conclusion as Maxwell J did. I would do so because although the respondent had an expert's report, the appellant never did. The respondent's representatives would therefore be obliged to defend the respondent's position without the slightest pre-warning of what Mr Osman would say. That is the very kind of litigious ambush which Pt35 R13A was designed to prevent. Having reached these conclusions I am, like Handley JA, left with the case which the appellant presented at the trial. The appeal must be determined within the confines of that case. Evidence of negligence for the jury Upon the second question raised by the appeal the choice before this Court is starkly posed by the reasons of Priestley and Handley JJA. Each of them has force. Essentially this is so because, as Mason, Wilson and Dawson JJ pointed out in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 307 what is considered reasonable" as a precaution to be taken by an employer acting appropriately to protect employees from the foreseeable risk of injury, is normally for the tribunal of fact to decide. It will be influenced by current community standards and will have regard to the unique circumstances of the particular case. Once the threshold is passed whereby there is some evidence for the tribunal of fact to sustain its URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Kirby P) 5 opinion, the issue of the alleged failure of the employer to meet its common law duty of care must be faced and answered. Where the tribunal of fact is a jury, the issue must be answered by the jury. Provided some evidence exists from which the jury, acting reasonably, could decide the matter in the employee's favour, it is not for the judge to usurp the jury's function. The judge must then leave the question to that constitutional tribunal of fact. Handley JA is right to point out that, in the absence of the evidence of an expert, the appellant's case was weak indeed. I regard it as being on the borderline. There was no expert testimony of an alternative system which could have been adopted. Nor was there evidence of an industry practice in handling the process of steel bending to which the appellant could appeal to demonstrate the unreasonableness of the respondent's relying on his manual labour. Furthermore, as Handley JA has stressed, the appellant had not complained about the task assigned to him in the short interval that he was performing it before he was injured. He did not call evidence of the complaint of other workers. Nor did he demonstrate the reasonableness of insisting upon a crane or other mechanical device for lifting the rods, when the other demands upon such devices in the respondent's factory premises were considered. Against these considerations are those to which Priestley JA has referred and which ultimately persuade me that the matter should have been left to the jury. The failure of the appellant to complain is scarcely determinative. This was not his usual job. Although he was an experienced rod bender, the task to which he was assigned when his injury occurred was different from that which he normally performed, at a different bench and carried out in a different way. It is true that the appellant did not give precise evidence of an alternative system of doing the work which would have prevented his injury. But the duty to provide a safe system was personal to the respondent. Moreover, the appellant did give evidence that a crane was available to put the bundle of rods on the bench. Given the description of the rods, with their fish hooks virtually bound to become ensnared when being lifted, it would be open to a jury to determine that the particular task to which the appellant was assigned ought, in the contemporary circumstances of a factory such as that of the respondent, to have been performed with the assistance of the crane. This much would follow from nothing more than the foreseeability of ensnarement and the inevitability that such ensnarement would cause the back of the worker, lifting rods which had become ensnared, to be submitted suddenly to the force of a very great weight. If the jury then decided that the failure of the respondent to provide the crane for the task of lifting the rods with their hook ends, as described, was the cause of the appellant's injury, it would be open to the jury to find the respondent in breach of its common law duty of care to the appellant and to award the appellant damages. It is not to the point, in my respectful opinion, to say that our law has not yet developed so far that the occurrence of a back injury whilst lifting at work is prima facie evidence of negligence against an-employer. I entirely agree. However, Braistina and other decisions of the High Court, and of this Court, make it plain that what is required depends upon the particular facts of each case. Furthermore the duty of employers at common law is not static, set in the words of law books. It is influenced by current community standards which are constantly changing and may be deemed known to a jury. Amongst those standards is a proper attention to accident prevention where the risk of injury is serious and reasonably foreseeable. 6 UNREPORTED JUDGMENTS The risk of ensnarement and the nature, shape and weight of the steel rods which the appellant was assigned to lift manually were such as to provide sufficient evidence of the foreseeability of injury to entitle the appellant to the jury's verdict. Likewise, the evidence of the existence of a crane, available to put the bundle of rods on the bench (as was sometimes done) was sufficient to permit the jury to find the existence of an alternative system which the jury could regard as appropriate and necessary to obviate the risk to which the manual effort subjected the appellant. These elements of the evidence required that, on the case presented, Maxwell J should have taken the jury's verdict. Had he done s0, it is quite possible that the jury, like Maxwell J and Handley JA, would have concluded that in all the facts and circumstances proved and by the contemporary standards expected of an employer there was no negligence in the respondent. The jury might have reached that verdict considering that the respondent had not failed to take reasonable care; that there was no reasonably available alternative system properly proved; or that any such system would not have prevented the appellant's injury as the jury determined it had happened. Had the jury reached all or any of these conclusions, a verdict for the respondent would have been unassailable. But by depriving the appellant of the jury's verdict a miscarriage of justice has occurred. It can only be cured by ordering a new trial. Orders I agree with the orders proposed by Priestley JA. Priestley JA The day after Mr Fajka (the plaintiff) came to Australia in 1971,he got a job as a steel bender. He did that job with the one employer for six years and then when some fellow employees went to work for another employer (the defendant, Aquila Steel Company Limited) he went with them. Apart from the period between his being sacked as redundant and then later re-employed, he worked for the defendant until he suffered an injury to his back while working for the defendant in 1981. The plaintiff's claim for damages against the defendant came on for hearing before a judge and jury. After evidence was given on behalf of both the plaintiff and the defendant, the trial judge, Maxwell J, ruled that there was no evidence on which the jury could find the defendant negligent. He directed that a verdict be entered for the defendant. Judgment was entered accordingly. The plaintiff appealed to this court. At the trial, the plaintiff's evidence in chief was that on the day of the injury he was cutting steel rods by means of what was called a hand cut machine. Beside the machine was a special bench long enough to take the rods and upon which the rods could be and sometimes were placed by crane. The rods on which the plaintiff was working on the day of his injury were 12 mm thick, half an inch in the old language as the plaintiff said, and four metres long. When he came to the machine to work that day the crane had not been used to put the rods on the bench. They had been placed on the floor about four feet from the bench. The rods were in bundles held together by wires. The weight of a bundle was over a tonne. The plaintiff cut the wire around one bundle. This left the rods in a pile the top of which was about seven or eight inches above the ground. Each rod had a hook at one end. The plaintiff did his work by bending down, picking up a number of the rods, turning to his right and putting them on the bench before cutting them in the machine. It was after he had been working for about twenty-five minutes that the injury occurred. In that time he did a number of rods; he estimated the weight of the rods he had cut at 102 or 102 kilos. Then he picked up five or six rods, "tried to turn a little bit as there URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Priestley JA) 7 were hooks either side, one or two of the hooks caught at the moment as I was turning". He then felt a sharp pain in his lower back. His evidence in chief dealt with the consequences of his injury. It is unnecessary to deal with this evidence for purposes of the appeal, beyond noting that upon it a tribunal of fact would be entitled to find that he suffered significant injury at the time when he said he injured his back. In cross-examination the following questions and answers were recorded: "Q. On the day that you say you had an accident, that is to say 28 July 1981, it was obvious to you that the rods had a hook on one end? A. Yes, I knew there were hooks. Q. You also knew that if you try and take a rod out of a bundle and it has a hook on the other end, that the hook is likely to get caught in the other steel? A. Yes, when you are lifting is vibrating. It is actually bending as you lift it because it is four metres on each side - not on each side, two metres on each side. Q. It was a four metre rod? A. Yes. Q. So, it is about six feet one end and six feet the other end, using the old English language? A. Yes, two metres a bit more than six feet. Q. And there was a bundle of them which you just opened up? A. Yes. Q. And you were taking one rod off the top, weren't you? A. You lifted one and you put it one of your hands and then you lifted the rest of them. Q. But, you were lifting one and pulling one rod when you say you felt pain in your back, weren't you? A. No, I didn't say that I was lifting one rod. Q. I want to suggest to you that you were lifting one rod. A. I said that one had to bend down and hold the rod in the right hand if you were righthanded or in the left if you were lefthanded and pick up the others. Q. But, when you say you hurt your back, you say you were lifting one rod out of the bundle? A. I didn't pull it by then. I lift it. I had in my arms six or seven pieces. Q. Didn't you say this morning five or six pieces? A. I think it was five and six. What can I do.? Q. Do you say you were attempting to pull one length of steel from a stack of steel when it became entangled and you thereby injured your back? A. I had five or six rods in my arms and one or two were caught. Q. Were you pulling on the one or two? A. How can I pull one if you have six in your arms. Q. Do you say you were pulling one or six, tell us, Mr Fajka? A. How do you mean? Pulling or lifting, I don't understand this. Q. I want to suggest to you that the case you are putting before this court is that you were pulling one rod, do you understand that, and that you hurt your back, isn't that right? A. I never said that I pulled one rod or that I pulled it. Q. Do you know that certain documents come into existence to start your case in this Supreme Court? A. I know. Q. I will ask you again, Mr Fajka, do you say you were pulling one rod or six rods? A. I already said I had them in my arms and I wasn't pulling them. I was lifting them when this got caught. Q. You were not pulling, you-were lifting them, is that what you say? A. Yes. Q. Is there any doubt in your mind about that? A. How could I pull it to the bench? Q. Is there any doubt in your mind about that? A. No. Q. I want you to assume that the document that his Honour handed down which is called your statement of claim, is this document that I have in my hand? A. I don't know what's written in it. 8 UNREPORTED JUDGMENTS Q. But, let me assure you you are about to. I want you to assume that para 3 is in these terms: "On or about 28 July 1981 the plaintiff...' that is you: '... in the course of his employment was attempting to pull a length of steel from a stack of steel lengths when it became entangled thereby injuring the plaintiff's low back'. A. Yes, it didn't get caught when I pulling it. It was when I was lifting it. Q. My question to you is: do you say that this statement is wrong? A. How would I know.? Q. Well, you are the man who knows what happened, aren't you? A. Yes, I mentioned now a while ago how it happened. Q. Do you say that this statement that I read to you is wrong? A. Maybe they wrote it in like that, because you had to lift the steel not pull it. Q. Do you say that what is written in this document which I have had translated to you is wrong? A. I mentioned only how the steel was caught when 1 lifted it. HIS HONOUR: Q. Mr Fajka, did you hear the question that was put to you? A. Yes I did. Q. Did you understand it? A. Yes. Q. Would you please answer it; was the statement read to you right or wrong? A. If it is written in it that I pulled it, it is not correct." He was then further cross-examined on what counsel for the defendant was asserting were discrepancies between the evidence the plaintiff had given before the jury and information supplied earlier by his solicitor to the solicitors for the defendant, in answers to requests for particulars. The difference between the word "pull" used in the statement of claim and the word translated as "lift" by the interpreter was explored further at some length. The cross-examiner pressed on on the basis that the distinction between the two words was of great significance in the case and the plaintiff (through the interpreter), presumably assuming that the significance the cross-examiner was attaching to the distinction was justified, determinedly stuck to the word "lift". The plaintiff's legal representatives had not complied with the rules concerning the service of expert reports in advance of the trial. When application was made on the plaintiff's behalf to dispense with the rules so that expert evidence concerning the defendant's system of work could be put before the jury orally, the application was opposed by the defendant and refused by the trial judge, in the circumstances set out in the reasons of the other members of the court. This meant that at the conclusion of the plaintiff's case substantially the only evidence he had put before the jury on the question of the defendant's liability was his own. The defendant called evidence going to the question of damages. There was short evidence in reply on this aspect of the case. Counsel for the defendant then successfully submitted that there was no evidence of negligence to go to the jury. In giving his reasons for accepting this submission, Maxwell J, first summarised the evidence on liability, and then dealt with the submission principally by reference to observations made by Moffitt J in Malaxechevarria v Sabemo Pty Ltd (Full Court, unreported, 24 September 1963). Sugerman and Else-Mitchell JJ both agreed with what Moffitt J said in that decision. The case was one in which the defendant was appealing against a jury's verdict for a plaintiff. It was said that the trial judge had been in error in refusing to direct a verdict, on the basis that there was no evidence of negligence, for the defendant. On this, Moffitt J said: "This class of case, as the trial Judge observed, raises the problem as to when the point is reached where such a case ought URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Priestley JA) 9 properly to be left to the jury as a question of fact. This problem arises particularly in cases of back injuries which arise from lifting of heavy loads which, prima facie, one would expect to find before the Workers' Compensation Commission rather than in a common law action for negligence. Similar problems have been met in various contexts in Pitsiavas v John Lysaght Pty Ltd (1962) NSWR 1500; Hamilton v Nuroof (WA) Pty Ltd, 96 CLR 18; Todd v Juleffs Pty Ltd (1961) SR 676. Each case depends on its own facts. Here the weight to be lifted was 243 1b, the half share amounting to 121 1/2 1b. Appreciation of weight-lifting capacities of individuals, including the strains and problems of lifting weights, particularly heavy weights, are matters of common knowledge well within the province of a jury. Such common knowledge arises from the general appreciation of weights of persons and objects in common use, such as bags of cement and the like. It is also a matter of common knowledge that lifting and handling of heavy weights involves a risk of back injury which risk varies from individual to individual, some without knowing it being more susceptible than others. It is also common knowledge that the risk of injury with a given weight can be increased by the number of factors associated with conditions under which the operation is conducted. Some of such factors are present in this case, namely, lifting on uneven ground or in an awkward position so that the best lifting movement of the body cannot be indulged in. In the result, for a given weight, a greater strain is liable to be thrown on some part of the body than normal. Other such factors are movement of the persons carrying a load over irregular surfaces such as inclines or steps and movement of the load because of its own quality, for example, its elasticity giving it a 'whip' tendency. Such movements of the person or load will tend intermittently to increase the burden of the load by converting dead weight into a weight having a factor of momentum." The repeated references by Moffitt J in the above passage to what are matters of common knowledge within the province of a jury were no doubt references to the then recently decided case of Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362, to which he referred later in his reasons. In that decision, Taylor and Owen JJ in joint reasons had said: "No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and permit one to say that reasonable and appropriate precautions might appropriately be taken to avoid it." (at 368) They added that Hamilton v Nuroof (WA) Pty Ltd was such a case, and gave many other references. Maxwell J did not refer to this aspect of Malaxechevarria but compared the particular factors mentioned by Moffitt J with what appeared in the evidence before him. In his view none of those factors were present in the case he was dealing with, differently from the position in Malaxechevarria. Then he said: "Neither is there any evidence of the weight of a rod or the combined rods of five or seven rods, depending on the number he was lifting at the relevant time. There was no evidence that the plaintiff ever complained about being required to lift what he considered to be unduly heavy weights. There was evidence that he had previously lifted the same number of loads. Thus, in my view there is no evidence from which a jury could find or infer that the plaintiff's injury arose from the fact that he had to lift the rods without assistance by way of manpower or mechanical means. Put another way, I am satisfied (1) there was no evidence that the system adopted exposed the plaintiff to an unnecessary risk 10 UNREPORTED JUDGMENTS and (2) there was no evidence that any alternate procedure reasonably open to the defendant would have avoided the injury to the plaintiff." I do not think Maxwell J was entirely correct in this approach. He appears to have treated Moffitt J's list of factors as exhaustive which I do not think they were intended to be. Further there was some evidence of some of them, the most obvious example being the vibration of the rods in the course of being moved from pile to bench. Further, it does not seem to me that what Maxwell J said was a complete statement of the materials that had emerged in the plaintiff's case. There was some, admittedly sketchy, evidence of the weight of the bundle of rods on the floor from which the plaintiff was trying to detach the five or seven rods in the course of getting them from the floor to the bench. Of other matters mentioned by Maxwell J as contributing to his conclusion, the fact that the plaintiff had not complained about being required to lift unduly heavy weights or that he had previously lifted such weights without mishap is not inconsistent with the employer's system of work not being reasonably adequate in the circumstances. Then, to say there was no evidence from which a jury could find or infer that the plaintiff's injury arose from the fact that he had to lift the rods without assistance by way of manpower or mechanical means seems to ignore the position that on the plaintiff's evidence his injury in fact arose in the course of his lifting the rods without assistance by way of manpower or mechanical means. The validity of this criticism may depend on the meaning to be given to "had" in his Honour's statement of his opinion. The ambiguity in that statement is perhaps clarified by what his Honour next described as putting the same idea in another way, namely that he was satisfied there was no evidence the system adopted exposed the plaintiff to an unnecessary risk and there was no evidence that any alternate procedure reasonably open to the defendant would have avoided the injury to the plaintiff. As I understand the evidence that was before the court, it was open to the fact finder to say that the system adopted, which involved leaving the bundles of rods on the floor, exposed the plaintiff to.a risk (that such a thing would happen as did happen) which was unnecessary because a crane was available to put the bundles of rods in a position where the risk the plaintiff in fact encountered would not have been encountered; similarly, contrary to what his Honour said, there seems to me to have been evidence that the alternate procedure, that is the use of the crane, was reasonably open to the defendant and that it would have avoided the injury to the plaintiff. I recognise that it would be open to the tribunal of fact to come quite readily to the conclusion that they, the jury, were not satisfied the plaintiff had made out a case of negligence. However Maxwell J, not being the fact finder at this trial, could only do what he did if there was no evidence at all upon which the jury could reasonably conclude that the defendant had not taken reasonable care to avoid exposing the plaintiff to unnecessary risk of injury. In my respectful opinion Maxwell J's decision was based on a view of the scope of the jury's function which recent authorities show is too restricted In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, Mason, Wilson and Dawson JJ pointed out that it is as true today to say what the High Court said in 1956 in Hamilton v Nu-Roof (Western Australia) Pty Ltd (1956) 96 CLR 18, namely that it is the duty of a reasonably prudent employer "to take reasonable care to avoid exposing the employees to unnecessary risks of injury" (see at 307-8). Significantly for the present case, they continued a little later: URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Priestley JA) 11 "... what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer, acting reasonably, would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards.... Accident prevention is unquestionably one of the modern responsibilities of an employer." (at 308-309) Brennan and Deane JJ, on the same topic, said: "Contemporary decisions about what constitutes reasonable care on the part of an employer... in the running of a modern factory... reflect more demanding standards that those of twenty or thirty years ago.... that in part depends upon the consequences of the elucidation of legal principle... [but] it has, to a greater extent, reflected the impact, upon decisions of fact, of increased appreciation of the likely causes of injury to the human body, of the more general availability of the means and methods of avoiding such injury, and of the contemporary tendency to reject discounting of any real risk of injury to an employee in the assessment of what is reasonable in the pursuit by an employer of pecuniary profit." (at 314) Those remarks were made in a case dealing with a back injury suffered by a factory employee, and they emphasise the duty of the tribunal of fact, whether it be judge or jury, to give careful consideration in every case such as the present to what current community standards would reasonably expect of the employer in the case, in the way of precaution against injury to employees in the circumstances of the particular employment. In another case, Waugh v Kippen (1986) 160 CLR 156, decided in the High Court shortly before Braistina, a decision of a judge sitting without a jury dismissing an employee's claim for damages for negligence, was upheld. In their joint reasons, Gibbs CJ, Mason, Wilson and Dawson JJ said: "It is ultimately a matter of judgment whether, having regard to the very slight risk found to have existed, the [employer] exercised sufficient care in the circumstances to fulfil [the] duty to provide a safe system of work." (at 162) I understand this passage to be referring to the trial judge's function as the tribunal of fact to make the judgment referred to. All this suggests to me that the evidence concerning liability in the present case was capable of supporting the following findings: 1. that the plaintiff suffered injury, while lifting or pulling the steel rods, or, stated more fully, that whatever verb was used, the plaintiff was trying to get a number of rods, some of which were caught in the pile lying on the floor, on to the bench and that in trying to move them from the one place to the other he was raising them while turning towards the bench, and meeting resistance in his efforts to do so because of the entanglement when the injury occurred; 2. if a finding substantially along the lines of 1. was made, the defendant could reasonably have foreseen the possibility of such a happening; 3. that a crane was available to put the bundle of rods on the bench; 4. (if 3 were found) that the use of the crane was a precaution which the defendant, acting reasonably, would be expected to take; 5. (if 4 were found) that the non-use of the crane was a cause of the plaintiff's injury. If there was any evidence upon which the foregoing findings could be made, as I think there was, it was for the jury to decide whether they should be made. 12 UNREPORTED JUDGMENTS Ido not indicate any view about the conclusions the jury should have come to. It does seem-to me however that it was for the jury as the tribunal of fact, not Maxwell J, to decide whether or not to make the findings I have mentioned, on the evidence as it was left. The evidence was sketchy and it may have had inconsistencies within it; but any inconsistencies were not, in my opinion, so destructive of the plaintiff's case as legally to preclude the jury from finding in his favour. Further, no evidence had been called by the defendant on the question of liability and the jury were entitled to take that into account in the way described in Jones v Dunkel; (1959) 101 CLR 298) and also by Gibbs J in Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 at 214-215. In my opinion the verdict and judgment in favour of It may be helpful to a reader of the reasons given by Kirby P, Handley JA and myself to know that my reasons, as commented on by Handley JA, comprised what appears before this paragraph. I add some further material, not in argument with what Handley JA has said, but simply to enable a reader to see on what I based my earlier summary of the plaintiff's evidence. I think it helpful to do this because it has become clear that Handley JA and I are in agreement on the legal rules involved, but take different views of what facts it would be properly open to a jury to draw from the evidence. On the factual level, what seem to me to be the most important matters are what it would be open to a jury to think about the availability of a crane, and the size and position of work benches, based upon the evidence. The summary of the evidence in the third paragraph of my-reasons relating to those matters was based on the following passage in the plaintiff's evidence in chief: "Q. On 28 July 1981 you went to work at the usual time? A. Yes. Q. What time was that? A. We started at 7.15. Q. What work were you doing on that day? A. I went to my bend machine but nothing to do there and my boss sent me to the hand cutter. [The last two words are hard to read in the appeal papers but I think they must be as here printed.] (At this point it was decided to use the interpreter.) (Last question read by court reporter.) WITNESS: I was cutting. Q. And you were cutting steel? A. Steel. Q. What kind of steel were you cutting? A. They were twelves, size 12. Q. These were steel rods, were they? A. Yes. Q. And had you cut reinforcing rods before this day? A. Oh, yes, many times. Q. What kind of machine did you use for cutting those road? A. What I was working on was called a hand cut. Q. That was a machine which cut the rods, was it? A. Yes. Q. Just for the moment, I am not talking about the particular day of the accident, when you were cutting the full length rods, the 30 metre rods how did you get them to the machine to cut them? A. These rods were not 30 metres, they were 30 feet. Q. Thirty feet, sorry. You did often, before the day of this accident, you often cut 30 foot rods, did you? A. Yes, many time. Q. And you cut them on this hand cut machine? A. Yes. Q. And that machine, I think, was on a bench? A. Yes, it has a machine that has its own bench. Q. And the bench is long enough to take the 30 foot rods? A. Yes, there is a special bench which is placed alongside the machine so that the rods go on to it. Q. Is that bench flat? A. No, it has three steps, three. URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Handley JA) 13 Q. When you are facing the bench ready to work at the bench, are those steps, do they step down towards you as you face the bench? A. Yes, towards me. Q. And how are the rods brought to that bench? A. The crane brings it along, a bundle of three times. Q. Does the crane actually put the rods on the bench? A. Yes. Q. And once the rods have been put on the bench how do you get them to the hand cut machine? A. They are tied with wire we have to cut the wire and then one by one we take it and put it on the rollers and that is how they go in the machine. Q. Are those rollers part of the bench or part of the machine? A. Part of the bench. Q. So, you actually pull the rods on roller to the machine? A. Yes. Q. How high was the part of the bench that you worked at, could you demonstrate on your body where it came up to? A. The lowest is four feet, the highest is six feet. Q. The one on rollers where you rolled? A. Four feet. Q. On 28 July 1981 what kind of steel were you cutting that day? A. They were size 12 except they were bent and they were on the ground. Q. When you say size 12, how thick were those rods? A. Twelve millimetres, half an inch in the old language. Q. What length were the rods that you were working on that day? A. Four metres. Q. When you arrived at work were those rods already there waiting for you to work on them? A. Yes, somebody placed it there overnight. Q. Were they on the bench those rods? A. They were on the floor. Q. How close to the bench were they? A. About 4 feet." In my opinion the verdict and judgment in favour of the defendant should be set aside and a new trial ordered. The defendant/respondent should bear the plaintiff/appellant's costs of the appeal and should, if entitled, have a Suitors Fund certificate. The costs of the first trial should abide the outcome of the second. Handley JA This appeal arises out of an injury to the appellant's back which occurred at work in the respondent's factory on 28 July 1981. Proceedings were not commenced in the Common Law Division until 19 April 1985 and they came on for trial before Maxwell J and a jury on 23 November 1987. At the close of the evidence the defendant successfully moved for a verdict by direction on the ground that there was no evidence of negligence to be submitted to the jury. The plaintiff appealed to this Court and seeks a new trial. The appeal did not come on for hearing until 2 July this year. The plaintiff was an experienced steel bender and had worked in that occupation for ten years prior to his accident, first at Boral Steel and then with the defendant. He said in evidence that he was among the "first" steel benders at Aquila Steel. On the day in question he was directed to work at the hand cutter bench which was not the bench he normally used. He was there directed to cut size 12 steel reinforcing rods. These were four metres in length and 12mm or half an inch in width. A bundle of these rods weighing over a tonne had been deposited on the floor, probably by a crane, about four feet from the bench. The plaintiff cut the tie wires and this caused the bundle to spread out a little. The pile of rods was about seven or eight inches high at its highest point. The plaintiff had been bending down to pick up five or six rods at a time and he then turned to deposit them on the bench. This involved lifting the load about 14 UNREPORTED JUDGMENTS four feet. When those rods had been cut the process was repeated. The injury occurred after the plaintiff had been working for about twenty-five minutes and had cut 102 to 103 kilos of rods. According to the plaintiff's evidence at the trial his injury occurred when he picked up a bundle of five or six rods and some got caught in the pile on the floor. The rods had fish-hook bends on at least one end and it seems that one way or another one or more of the rods which the plaintiff had in his hands got caught causing him to feel a sharp pain in his lower back. There was an issue at the trial as to whether the plaintiff's evidence as to how the accident happened was inconsistent with the allegation, which had been placed and particularised, that the injury occurred while he was pulling a rod from the pile. The plaintiff said in evidence that "usually everybody was lifting them like that" and that he had lifted five or six rods at the same time when doing this work before. The appeal was supported on two grounds. One was the trial judge had erred in holding that there was no evidence of negligence and in directing a verdict for the defendant. The other was that he had erred in refusing leave under RSC Pt35 r13A(5)(a) for the plaintiff to adduce oral evidence in chief from Mr Osman, an expert, directed to the issue of negligence on the part of the defendant. The plaintiff's application for leave was made at the start of the second day of trial. Under RSC Pt36 r13A the plaintiff's solicitors should have served a copy of Mr Osman's report on the solicitors for the defendant not less than twenty-one days before the date fixed for trial. This had not been done. In fact no written report from Mr Osman was produced or available on the morning of the second day of the trial. Hence the plaintiff needed leave to adduce oral evidence in chief from Mr Osman but neither the trial judge nor the defendant's legal advisors had any written statement of what that evidence in chief was likely to be. The trial judge refused leave. In his reasons he referred to two matters which led to his decision. The first was that the plaintiff's oral evidence as to how the accident happened differed from his case as pleaded and particularised. Secondly his Honour said that this was not a case where the expert evidence "can almost be accurately guessed at" and that the defendant would be prejudiced by the giving of oral expert evidence at that late stage of the trial and that it would be necessary for the defendant "to carry out investigations in its factory and possibly refer the report for the considerations of the defendant's expert". The appellant submits that the trial judge erred in exercising his discretion to refuse leave, and in aid of that submission his counsel sought leave, pursuant to s75A(7),(8) and (9) of the Supreme Court Act to adduce further evidence on appeal. The further evidence comprised an affidavit by Mr Robert Coshott, the plaintiff's solicitor. The deponent stated that after the trial had concluded on 25 November 1987 he returned to his office to find in the mail a letter from Messrs. Hunt and Hunt, the defendant's solicitors, dated 18 November enclosing by way of service a report from a Dr Harrison of Unisearch dated 23 March 1987 dealing with the system of work being followed in the defendant's factory at the time the plaintiff sustained his injury. Counsel for the appellant submitted that the existence of this report already available to the defendant would have been highly relevant to the exercise of the discretion of the trial judge to grant leave to the plaintiff to adduce oral expert URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Handley JA) 15 evidence from Mr Osman. In particular it directly addressed the very issue of prejudice to the defendant expressly referred to by the trial judge in his reasons for refusing leave. Counsel pointed out that the evidence in question related to matters occurring after the trial, and as such was within s75A(9) of the Supreme Court Act so that this Court's discretion to receive such evidence was unfettered by the statute. Counsel also referred to Meek v Flemming [1961] 2 QB 366 and submitted that counsel for the defendant should have informed the trial judge that the defendant had already obtained an expert's report, and that at least inadvertently the trial judge had been misled on the issue of prejudice to the defendant which would arise from the grant of leave at that stage of the trial. Counsel for the defendant in reply however referred to the letter from Hunt and Hunt enclosing a copy of the report of Dr Harrison and the affidavit of his instructing solicitor Mr Cooper that his practice was to arrange for letters to be posted the day they were dated or the following day. In these circumstances the defendant's legal advisors had no reason for thinking on 24 November when the application was made for leave to adduce oral evidence from Mr Osman, that the plaintiff's solicitors had not already received the letter of 18 November. The Court was informed by senior counsel from the bar table (who appeared at the trial) that at the time the defendant's legal advisors believed that the plaintiff's application for leave to adduce oral evidence had actually be prompted by receipt of the defendant's report. In these circumstances it is clear that counsel for the defendant did not, even inadvertently, mislead the trial judge by failing to disclose the existence of the defendant's expert report. Accordingly in my opinion this case is not within the principles applied in Meek v Flemming (above) where counsel for the defendant had actively misled the trial judge and the jury in relation to the defendant's current rank in the police force and had thereby concealed from the Court the defendant's demotion following disciplinary action taken against him between the commencement of the proceedings and the trial. Counsel for the defendant further submitted that in the absence of a written report or proof of Mr Osman's proposed evidence the issue of possible prejudice to the defendant still remained. The defendants may still have been taken by surprise by that evidence. Moreover it was not known whether Mr Osman's evidence would be based on the plaintiff's case as pleaded and particularised or on his evidence in chief. Finally the defendant had had no opportunity up to that point in the trial to cross-examine the plaintiff in an endeavour to destroy the assumptions on which the evidence of the plaintiff's expert would be based. No doubt the plaintiff could have been recalled for further cross-examination but this could only take place after Mr Osman's evidence had been given. In these circumstances I am not satisfied that the existence of the defendant's expert report was a fact of a decisive character which, had it been known to the trial judge, would have resulted in leave being granted to adduce oral evidence from Mr Osman. It is a melancholy fact that this action had twice previously been fixed for trial and been not reached. The actual trial took place on the occasion of the third "fixture". When the trial was last fixed by the Prothonotary the Court was not told that the plaintiff proposed to call expert evidence on the issue of liability. The twenty-one day period before the trial provided for in RSC Pt36 r13A(3) was allowed to come and go. Counsel for the plaintiff did not open any question of expert evidence to the jury for the obvious reason that such evidence was not then available to him and as I have already mentioned, no written report 16 UNREPORTED JUDGMENTS or even proof of Mr Osman's evidence was available to be shown to the trial judge and to the defendant's legal representatives in support of the application for leave. The proposed further evidence which the appellant seeks to have admitted in support of his appeal in my opinion is not of a decisive nature and does not establish that his Honour's refusal of leave involved or caused any miscarriage of justice. In the end the decisive factor against the grant of leave in my opinion is that on the hearing of the appeal in July 1990 the appellant did not have available a copy of Mr Osman's report for production to this Court and to the legal advisors for the respondent. In these circumstances it is impossible for this Court to form any opinion as to the probable importance of that evidence at the trial or on the question of possible prejudice to the defendant if called upon the-meet that evidence at short notice. In these circumstances in my opinion leave should not be granted under s75A(9) to adduce the further evidence. It also follows that the second ground argued in support of the plaintiff's appeal must fail. The remaining question if whether the trial judge erred in ruling that there was no evidence of negligence to go to the jury. The evidence on liability in the plaintiff's case was meagre indeed. The plaintiff was the only witness called on that issue. He have no evidence that any alternative system of doing the work in question was available. I have read and re-read his evidence and have done so again since reading in draft form the reasons for judgment of Priestley JA. The bundle of rods on which the appellant was working at the time of his injury had been deposited on the factory floor before he arrived for work probably by a crane. He said that when he arrived at this particular machine on the day of the accident "there were some short pieces" on the bench which he used first. The evidence does not reveal whether these would have prevented the bundle from being deposited on the bench or whether the crane could have been used to lift the bundle onto the bench after these "short pieces" had been worked on and if so whether the appellant himself could have arranged for this to be done. In view of the appellant's evidence there was obviously room on the bench for five or six of these four metre rods but there was no evidence that the whole load could have been left on the bench either with safety or at all. The appellant never said that bundles of rods of this size were left on this particular bench. There were some 200 rods in the bundle and when the tie wires were cut the rods spread out. There was no evidence of the width of the bench or the width of the bundle of rods before or after the tie wires were cut. For all the Court knows it may not have been safe for the whole bundle to be placed on the bench because when the wires were cut and the bundle spread out some of the rods may have rolled onto the floor with the risk of injury to persons, such as the appellant, working at the bench. The available space on the work bench may have been needed to properly arrange and line up a small number of rods before drawing them into the machine for cutting. The cutting device may have been flush with the work bench so that rods could only be fed to the cutter from the surface of the bench and when it was reasonably clear. There was also no evidence that it was easier or safer to select rods from a loose pile on the top of the work bench rather than from the factory floor. It might be quite difficult to disentangle these rods if they are together on the work bench URJ FAJKA v AQUILA STEEL COMPANY LIMITED (Handley JA) 17 four feet from the floor at chest height. It might in fact be easier and safer to disentangle them when they are on the floor. It may have been possible for the crane to have stood by to lift the rods five or six at a time onto the bench. However there was no evidence of the size of the factory, the number of cranes available, or the other work they were required to do. The appellant did not suggest that a crane could or should have been used in this way. The evidence does not disclose whether the crane lifted its loads by a hook or by electro-magnetic means. If the crane was of the hook type it is possible that the task of loading five or six rods onto the crane hook each time would have involved considerable lifting anyway and just as much bending as the method followed by the appellant. There was also no evidence of the weight of the five or six rods that the appellant had been lifting onto the bench. Some evidence was led from the appellant in chief about the way in which this so called hand cutter machine was used for the cutting of 30ft rods. When the appellant did this type of work on this machine a "special bench" was placed alongside the machine, the crane placed the rods on that bench, and the rods were pulled by the plaintiff over rollers to the machine one at a time. Counsel for the appellant did not rely on this evidence in the course of his submissions to this Court and in the absence of argument I am unable to determine its relevance, if any. The appellant in his evidence did not suggest that this method of working should have been used when he was working on 12ft rods. At the trial the defendant tendered a photograph of the machine but with a different bench from the one the appellant was working on when he sustained his injury. The defendant also tendered two photographs which "generally show what it looks like in a steel bending factory". These photographs were not included in the appeal book but were available in the file. However they were not referred to or relied upon by the appellant's counsel in his written or oral submissions and therefore I have not looked at them. The appellant said in his evidence in chief that "near every machine it was written down how much the handler was supposed to lift, how much he can cut by it." However the appellant was never asked whether the load he was lifting or pulling at the time of the injury was or was not within the weight limit stated on the machine that he was operating at the time. It appeared from the appellant's evidence that the system of work he was following that day was a normal one on the machine in question and that he and others had worked in that way many times before. He was an experienced-steel bender able to work at his own pace and select for himself the load he would lift. There was no evidence of earlier complaints from the appellant or any of his fellow employees about the system of work that was being followed. There was no evidence that an alternative system of work could or should have been adopted. The evidence on liability amounted in my opinion to little more than proof that a back injury had been sustained by the plaintiff while lifting a bundle of steel rods from the floor to a work bench. Proof of the occurrence of a back injury while lifting at work is not yet prima facie evidence of negligence against an employer. In my opinion that trial judge was correct in ruling that there was no evidence on the issue of negligence fit to be submitted to the jury. In his reasons for judgment Priestley JA draws attention to the value judgment inherent in deciding whether or not an employer has failed to take reasonable care to protect his employees from a foreseeable risk of injury. I respectfully agree 18 UNREPORTED JUDGMENTS with this analysis. It is fully supported, although in a different field of negligence, by Wyong Shire Council v Shirt (1980) 146 CLR 40 especially at 47-48 where Mason J said: "... itis... for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and 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". In my respectful opinion the difficulty in the path of the appellant in this case is that there is no evidence from which a jury could determine in this case what was the "standard of response to be ascribed to the reasonable [employer] placed in the defendant's position". Thus the absence of evidence as to the weight of the bundle of five or six rods that the appellant had been lifting to the bench left the jury without a vital piece of evidence which would have enabled it to determine the magnitude of the risk inherent in the system of work being followed. Moreover the lack of reasonably complete evidence about the work which the appellant was doing and how he was doing it coupled with the complete absence of any evidence of an alternative and safer system meant that the jury were in no position to assess "the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have". In my opinion, this is not one of those cases where the system of work being followed was so simple and straightforward that a jury could properly understand and evaluate it without such evidence. Compare Hamilton v Nuroof (WA) Pty Limited (1956) 96 CLR 18 and Neill vy NSW Fresh Food and Ice-Pty Limited (1963) 108 CLR 362 referred to by Priestley JA. In my opinion therefore the appeal should be dismissed with costs. ORDER 1. Appeal allowed; 2. Set aside the judgment of Maxwell J directing a verdict for the respondent, and order a new trial; 3. The respondent to pay the appellant's costs of the appeal and, if entitled, to have a certificate under the Suitors' Fund Act, 1951 (NSW); and 4. Costs of the first trial to abide the outcome of the second. Counsel for the Appellant: P Stone Counsel for the Respondent: MD Ireland QC / SG Campbell Solicitors for the Appellant: Gunn Hamilton Blay Solicitors for the Respondent: Hunt and Hunt