BOWDEN v METHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA, PRIESTLEY JA, HANDLEY JA 10 February 1992, 12 March 1992 [1992] NSWCA 25 NEGLIGENCE — DUTY OF CARE OWED BY OPERATOR OF TRACTOR SLASHER CONTRIBUTORY NEGLIGENCE APPORTIONMENT APPEAL — REVIEW OF TRIAL JUDGE'S FINDINGS OF FACT — CREDIBILITY OF WITNESSES — FINDINGS ON CREDIBILITY PARTLY BASED ON IMPERMISSIBLE INFERENCES FROM PROVED OR ADMITTED FACTS — ORDER FOR NEW TRIAL NEGLIGENCE — Duty of care owed by operator of tractor slasher contributory negligence — apportionment APPEAL — Review of Trial Judge's Findings of Fact — credibility of witnesses — findings on credibility partly based on impermissible inferences from proved or admitted facts — order for new trial HELD (Priestley and Handley JJA; Mahoney JA dissenting): (1) The Trial Judge had drawn impermissible inferences from proved or admitted facts in reaching his conclusion as to the credibility of the parties. (2) There had to be a new trial therefore at least on the issue of apportionment. (3) Since the issue of apportionment could not be severed from the issues of negligence and contributory negligence, there must be a general new trial on the question of liability. CASES Deane v The City Bank (1904) 2 CLR 198 Anmstrong v Great Southern Gold Mining (1911) 12 CLR 382 Balenzuela v De Gail (1959) 101 CLR 226 Abalos v Australian Postal Commission (1990) 171 CLR 167 Mahoney JA On 11 May 1982 the defendant was operating a tractor slasher on the plaintiff's premises. The blades of the slasher picked up a piece of wire. The wire was whipped round the slasher. The plaintiff was standing only a short distance from the slasher. The wire coiled around his right leg and the result was that the lower part of that leg was amputated. The plaintiff sued the defendant in negligence. The defendant pleaded contributory negligence. On 23 August 1989 his Honour Judge Conomos found the defendant negligent. He assessed the plaintiff's total damages as $305,785. He found the plaintiff guilty of contributory negligence and reduced the damages by one-third. Accordingly, he gave judgment for the plaintiff for $225,785 The defendant has appealed to this Court against his Honour's judgment upon issues affecting liability. The plaintiff has cross-appealed in respect of issues related to apportionment. The facts are set forth in detail in the judgment of Handley JA and I shall not recapitulate them. The submissions made by Mr Gross QC for the defendant/appellant and by Mr Hislop QC for the plaintiff-respondent have covered a number of issues relating both to the substance of the issue of liability and the manner in which the trial proceeded. Some of them have been referred to in the judgment of Handley JA. In my opinion they may be dealt with by reference to three propositions: (1) upon whichever version of the facts be accepted, the defendant was guilty of 2 UNREPORTED JUDGMENTS negligence and the plaintiff was guilty of contributory negligence; (2) upon whichever version of the facts is accepted, the assessment of the plaintiff's contributory negligence at one-third should not be interfered with; and (3) the irregularities (if any) which occurred at the trial do not warrant the setting aside of his Honour's judgment. (1) The issues relating to negligence: The ultimate facts were not in issue: the slasher picked up a piece of wire, the wire was whirled round beyond the protective guard on the slashing machine, it became entangled round the plaintiff's right leg, and the result was that the portion of the leg was amputated. The defendant had been engaged by the plaintiff to use his, the defendant's, slashing machine to cut down the growths on the plaintiffs property. The defendant was driving the machine at the time. When the accident occurred, the plaintiff was, to the knowledge of the defendant, standing close to the machine: he was on the defendant's account some six feet from it; on the plaintiff's account he was some twenty feet from it. Beyond this, the facts were widely in dispute. The nature and extent of the dispute have been detailed by Handley JA. But whatever account of the other facts be accepted, once it be accepted that the plaintiff was, to the defendant's knowledge, within the six to twenty feet range, the defendant was, in my opinion, guilty of negligence and the plaintiff of contributory negligence. I base this conclusion essentially upon the fact that the operation of the machine involved the risk of injury, and serious injury, to anyone standing within that range of it. That fact is, in my opinion, clear. Conomos DCJ was plainly of that opinion. There was little evidence of the way in which the machine operated but, from the evidence and from what the court is entitled to know, the machine had a blade which revolved very fast. If it came in contact with, eg, a rock, a piece of wood or the like, the impediment would be apt to be thrown out with force and to do damage to persons within that range. Two things were suggested against this. First, there was a guard on the bottom of the machine designed to ensure that rocks or the like would be thrown out only at the back, through the gap in the guard provided for that purpose. The plaintiff was not standing there. And the suggestion was that if the machine came in contact with wire, the same result would follow: the wire would not damage a person standing where the plaintiff was. I do not agree with this suggestion. As the events showed, if the machine went across a piece of wire, at least a piece of sufficient length, the wire was apt to be taken up by the machine, and to be whirled round the machine, at the front or the sides as well as the back. It is not clear whether the wire became entangled with the blade or the shaft but, as the events showed, it became entangled and was whirled round under the guard at such a speed as to lead to the amputation of the plaintiff's leg. The possibility or likelihood of that happening would, I think, have been apparent to a reasonable person in the defendant's position if he gave proper thought to the matter. If the wire was lying on the ground the guard would not stop the machine running over it. If one end of the wire became entangled with the blade or the shaft it would be expected that the other end of it, lying under the guard, might be whirled around under the guard. I am conscious of the need to avoid drawing conclusions which would require a basis in evidence or expert evidence. But I do not think that the perception of the possibility of wire being whirled around under the guard requires more than the ordinary understanding of a reasonable man in the position of the parties. URJ BOWDEN v METHAM (Mahoney JA) 3 Second, the defendant said that the plaintiff assured him that the area was clear of obstructions and that he should proceed with the operation. The suggestion was, I think, that this relieved the defendant of the duty to take care in respect of a person standing so close to the machine. With respect to those who may be of a contrary view, I do not think that it did. The defendant, on his own version of the facts, knew that there had been in the area a bale of wire. It was obviously possible wire may have been used in the area. The grass was knee high or a little less, so he would not see what was lying in it. If wire was there, it could - as the events showed - cause serious injury to a person standing where the plaintiff was. In view of the risk and the seriousness of the injury which might result if something was in the long grass, I would not see what the plaintiff was said to have done as relieving the defendant from the duty to take care for the plaintiff and enabling him to proceed as he said he did. Ihave based what I have said essentially upon the defendant's account of what happened. If the matter is to be judged according to the plaintiff's account, the defendant's negligence is, in my opinion, clear. Upon this basis, whether the court accepts the account of the circumstances given by the plaintiff or the defendant, the finding of negligence against the defendant was correct. Mr Gross QC, in his argument, properly submitted that it is open to a trial judge to find facts in accordance with neither party's evidence: he may find facts drawn partly from the one and partly from the other or based upon inferences available but not made by either of them in evidence. But, in my opinion, the finding made by the judge must, in the relevant sense, be derived from the evidence before him. In the present case, the relevant evidence was given by the plaintiff and the defendant and no-one else. The findings of the judge were therefore, to the relevant extent, circumscribed by the accounts given by the two parties. I do not mean that the judge was confined to a mosaic taken from the precise statements made by one or the other. It would have been open to him to draw inferences from what they said and so to find facts which did not precisely accord with what was said by the one or the other. But he could not, I think, depart entirely from the facts as given by the only two witnesses who spoke as to them. On any view, the plaintiff was standing within the area of danger if the defendant operated the machine. However that be, in my opinion, upon the basis of any version of the facts which it was open to the judge to find within the proper limits of the evidence, the defendant was guilty of the relevant lack of care. As my brethren are of a different view, it is not necessary for me to deal further with the other submissions made in this regard. (2) Contributory negligence: Upon the evidence both of the plaintiff and of the defendant, the plaintiff, when injured, was standing in a zone of obvious danger and in a place where, as he knew, wire had been used or prepared for use. The danger was plain. The learned judge, accepting the plaintiff's account, assessed his responsibility for his injuries at one-third. If the plaintiff's account be accepted, I would not differ from the learned judge. The basis upon which an appellate court will review an apportionment of responsibility in such a case as this is well established and has not been in question in this proceeding. If the defendant's account be accepted, there was a coil of wire in the vicinity which the plaintiff had moved: the plaintiff was therefore conscious of the existence of wire in the area. The defendant said the plaintiff was about six feet away. I do not think that the responsibility is significantly affected by whether the plaintiff stood within six feet or so or within twenty feet of where the slasher was 4 UNREPORTED JUDGMENTS operating: it was not suggested that such a difference was significant. I am conscious of the differing accounts as to how the plaintiff came to be where he was. But, in the end, on either account he stood in the danger area and, I think, it is that which is the main factor in assessing his responsibility for the injury which he suffered. (3) The trial: Mr Gross QC and to an extent Mr Hislop QC submitted that decisions made by the learned judge at the trial and in his judgment require the decision that the trial had miscarried and that there should be a new trial. These matters have been detailed in the judgment of Handley JA. In the main, the submissions have been that the learned judge, in preferring the evidence of the plaintiff to that of the defendant, erred and in doing so erred in matters which warrant this Court in setting aside his assessment of the parties' credibility. It was submitted that, within the principles discussed in Australian Postal Commission v Abalos (1990) 171 CLR 167, the learned judge failed properly to use the advantage that he had in seeing the witnesses: Chambers v Jobling (1986) 7 NSWLR | at 8, 19, 23, 26-8. I am not satisfied that his Honour erred in the manner suggested by counsel. Other errors were suggested: that the judge was influenced to accept the plaintiff's account because the defendant was not insured; and that he should have given different weight to the absence of certain witnesses. However, it is, I think, not necessary to form a final view upon these matters. This Court is, in my opinion, entitled to go to the substance of the matter. The credibility of the parties is in such a case as this, relevant for the purpose of determining what actually happened. If the position be that, within the parameters established by the evidence, the findings of fact open to the court would lead inevitably to the conclusion that the defendant was, on any view, negligent and that the plaintiff had responsibility for his injury of the order of that found by the learned judge, then in my opinion the court may so find and may give effect to its finding. It may do so even if there were errors at the trial, provided that, on any view reasonably open, those errors do not affect the conclusion that the plaintiff was within the area of danger when the machine was operated. A party is entitled to have his claim or his defence tried according to law and if that has not occurred then, prima facie, he is entitled to have the proceeding properly retried. But in the end the grant of a new trial is a discretionary evil. The court is in my opinion not required to order a new trial where, notwithstanding the errors suggested, the rights of the parties are clear. For the law to require a new trial because of errors in such a case would be, in my respectful opinion, to prefer form to substance and to do so at cost to the litigant. Two things may be said in this regard. First, it may be possible to conjecture conclusions of fact other than those to which I have referred as being within the parameters of the evidence as given at this trial. I have not sought to pursue all of the hypotheses theoretically open upon the evidence given by the plaintiff and the defendant. What the court is concerned with is, in my opinion, those conclusions as to what happened on the day of the accident which, given the evidence of the parties, are reasonably open. It is to those conclusions that I have addressed the observations which I have made. Second, I am conscious, as experience has shown, that upon a second trial of a proceeding the case may change completely. The evidence then given may disclose a completely different factual situation from that proposed by either party at the first trial. But I do not think that that is a reason for ordering a new URJ BOWDEN v METHAM (Handley JA) 5 trial. In considering whether a new trial should be ordered, the court properly concerns itself with the evidence given at the first trial. I put aside special cases, eg, where evidence was wrongly excluded. In this case the parties called the evidence they desired to call. The relevant complaints are complaints as to the inferences or conclusions to be drawn from that evidence. Thus, the complaint is made that the learned judge erred in what he did by reason of the absence of the two female witnesses who might have been called. In such a case, the court should not order a new trial because of the possibility that the parties might, on the second trial, choose to call different evidence. For these reasons I would dismiss the appeal and cross appeal with costs. Priestley JA I agree with Handley JA. Handley JA This is an appeal by the defendant from a judgment for $225,785.00 entered by His Honour Conomos DCJ in an action heard at Murwillumbah. The action arose out of a freakish accident which occurred on 11 May 1982 when the defendant with his tractor was slashing long grass on the plaintiff's property at Clothiers Creek near Murwillumbah. It was common ground that in some fashion the rotating blades of the defendant's slasher caught one end of some fencing wire which then became entangled around the plaintiff's right ankle. The plaintiff was dragged off his feet and his right leg was pulled by the wire under the slasher guard and amputated above the ankle. There was a stark conflict between the evidence of the plaintiff and that of the defendant. It was common ground that the plaintiff had telephoned the defendant and arranged for him to attend at the plaintiff's property to receive instructions as to the areas to be slashed. The plaintiffs version of the later events was that on the morning of the accident the defendant arrived with his tractor and slasher at the side or back gate of the property. He drove the tractor through the gate and towards the plaintiffs house, slashing the knee high grass as he advanced. The plaintiff saw that the defendant was approaching a passionfruit block on the property close to the house. This area was marked out by posts which carried, or in due course would carry the wires on which the vines would be trellised. The plaintiff and his de facto wife, Wendy Brown, were having a cup of tea on the verandah and were able to watch the defendant's tractor advancing towards the house. He was aware that there were coils of fencing wire lying in the area being approached by the defendant and signalled from the verandah for the defendant to stop. When these signals were either not seen or were ignored the plaintiff ran from the house towards the tractor, continuing to signal to the defendant that he should stop. It was common ground that at the time the defendant was wearing ear muffs as protection against the noise made by the tractor so that attempts at voice communication were unlikely to be successful. According to the plaintiff the defendant ignored his signals and drove the tractor past the plaintiff with the slasher still in operation. When the slasher was opposite the plaintiff and about twenty feet away, the rotating blades picked up one end of some fencing wire lying in the grass, causing the accident. The defendant's version was that he had driven his tractor and slasher to the plaintiff's property on the afternoon before the accident. He had then inspected the property with the plaintiff who had indicated the areas he wished to be cut by the defendant. In the process the defendant satisfied himself that it was safe to slash these areas. He did some slashing work that afternoon in the soft ground near the banana plantation close to the road. He ceased work at about 5.30, had a beer with the plaintiff and was then picked up by his girl friend, Jan Gill. 6 UNREPORTED JUDGMENTS The following morning the defendant, on his version, returned to the plaintiff's property about 7.30 am and resumed his slashing work. He worked on the long grass at the top of a hill near the house driving the tractor in diminishing circles for that purpose and passing close to the verandah where the plaintiff and his de facto wife were sitting. He then drove the tractor to do a cut on the area immediately downhill from the passionfruit trellises. The defendant turned the tractor in order to cut between two rows of passionfruit and noticed the plaintiff signalling from the high side of the trellised block. The defendant switched off the slasher, left the tractor in idle, dismounted and went uphill to speak to the plaintiff who also approached. The plaintiff said:- "I just remembered this bloody wire... and I thought I'd better shift it out of your road...." He then said:- "I've moved the wire away, I'll stand up there at the wire and watch you and just do that cut." The defendant then proceeded in first gear up the slope cutting the grass between two rows of passionfruit vines. The accident occurred when the slasher drew opposite the plaintiff. The only other witness, apart from the parties, was a Mr Sankey who was a contract slasher in the district called by the plaintiff to give expert evidence as to the precautions which should be adopted by a careful tractor driver during slashing work to avoid injury to third parties. The plaintiff did not call Wendy Brown to support his case, either in chief or in reply, nor was her absence explained. The defendant likewise did not call Jan Gill to support his case and her absence was not explained either. The plaintiff denied giving the defendant any instructions as to the area to be slashed or inspecting the property with him for that purpose prior to the defendant's arrival at the property with his tractor on the morning of the accident. On his version the arrangement made over the telephone was simply that he wanted some areas on his property slashed with a four wheel drive tractor such as the defendant possessed. A date was set for the defendant to come out and have a look at the job and to do the job. The plaintiff said the defendant "didn't give me any charges because he hadn't seen the job..We just talked sort of about what the layout of the place was and that the ground down the bottom was a bit damp and soft and that I needed a four wheel drive machine to get in there and L..talked about the fact I was growing passionfruit.... starting to put passionfruit in and things like that." He said that the defendant said that he could do the job and would come out. As already indicated the defendant's version was that following this conversation he came out to the property the afternoon before the accident, inspected it with the plaintiff and was shown the areas to be slashed. The trial judge did not have the evidence of other witnesses to help him resolve this conflict. The proceedings came on for trial in August 1989, over seven years after the accident. There were only two matters, apart from the evidence of the parties, and the absence of Wendy Brown and Jan Gill, which were available to assist the judge the plaintiff's statement of claim and the report of an inspector from the Department of Industrial Relations. Para3 and para4 of the statement of claim which was filed in November 1984 were as follows: "3. The plaintiff gave certain instructions and directions to the defendant, with respect to the area on the plaintiff's land, upon which the defendant was to operate the tractor and slasher. URJ BOWDEN v METHAM (Handley JA) 7 4. Contrary to the said instructions, the defendant left the area in which he was directed to carry out the slashing and proceeded towards the plaintiff's dwelling in another part of the plaintiff's land, entering near the plaintiff's passionfruit plants with the defendant's slasher continuing to operate." The particulars of negligence in the statement of claim included "operating the slasher outside the area designated by the plaintiff' and failure to shut off the slasher when leaving the designated area. The particulars of the breach of contract included a failure to comply with the plaintiff's direction to slash only in the designated area, and operating the tractor and slasher outside the designated area. The statement of defence filed in April 1985 admitted the allegations in para 3 and apart from a denial that the work carried out by the defendant was contrary to the plaintiffs instructions admitted the allegations in para 4. No objection was taken to the plaintiff's evidence in chief as being outside the statement of claim. The plaintiff did not seek and was never required to amend the statement of claim to cover his case as presented in evidence. Some of the allegations in the statement of claim were put to the plaintiff in cross-examination and he said that they were not true. Not all the relevant allegations were put to him and he was not shown the document in the witness box. It is possible that cross-examining counsel was diverted from his intended cross-examination on this subject by his Honour who intervened at this point and asked the next forty seven questions of the plaintiff, all on other matters. No complaint is made of this and when counsel for the defendant resumed his cross-examination he did not return to this subject. The trial judge did not refer in his reasons for judgment to the inconsistency between the plaintiff's evidence and the statement of claim although counsel for the defendant had emphasised this matter in his final address. The report of the inspector from the Department of Industrial Relations stated: "This accident happened as an employee was driving the tractor on the property.......and the employer GP Metham was standing in the long grass that was being slashed. He had placed his right foot inside a coil of fencing wire that was laying in the long grass and as the tractor came along slashing the grass the end of the coil of wire picked up in the slasher blades and tightened the wire around Mr Metham's leg causing it to be amputated just above the ankle." The plaintiff agreed in cross-examination that he had spoken to an inspector from the Department and that it was possible that he had told the inspector that he had put his right foot inside a coil of fencing wire that was lying in the long grass. It was not suggested that the defendant had ever spoken to the inspector. The report tends to confirm the evidence of the defendant as to the events leading up to the accident rather than that given by the plaintiff. The trial judge did not accept the defendant's evidence and preferred that of the plaintiff. He said: "Jan Gill was not called to give evidence and her absence from giving evidence was not explained. In those circumstances I do not accept the defendant's account of having attended the property on the day previously. I prefer the account generally of what occurred given by the plaintiff. The defendant is uninsured and it seemed to me that he had every reason to manufacture a case in order to offset the financial harm which will befall him as a result of the serious injury which occurred to the plaintiff." Counsel for the respondent properly reminded the Court of the decisions up to and including Abalos v Australian Postal Commission (1990) 171 CLR 167 which establish that an appellate court can only disturb findings of fact based on 8 UNREPORTED JUDGMENTS the trial judge's assessment of the credibility of witnesses in limited and special circumstances. In the present case it is clear that the trial judge's findings of fact were based to a significant degree on his assessment of the witnesses. However, the immunity of a trial judge's findings from appellate review is conditioned upon the trial judge not having "misused" his position of advantage: Abalos at 178. An appellate court is entitled and bound to review a trial judge's reasons for judgment and may intervene either to order a new trial or in some cases to substitute different findings if those reasons disclose a material error of law or of fact which is independent of the trial judge's assessment of the credibility of witnesses. Such errors may include the drawing of impermissible inferences from proved or admitted facts. In this case the trial judge referred to the defendant's failure to call Jan Gill or explain her absence and said:- "In those circumstances I do not accept the defendant's account". In my opinion his Honour was not entitled to rely upon the defendant's failure to call Jan Gill or explain her absence to reach his conclusion on the relative credibility of these parties. Any inference adverse to the defendant's case that could be drawn from the failure to call Jan Gill or to explain her absence is balanced and cancelled out by an equivalent inference adverse to the plaintiffs case from his failure to call Wendy Brown. The respondent argued that no inference adverse to the plaintiff's case could be drawn from this failure because it was not shown that Wendy Brown was in a position to give any relevant evidence. I am unable to accept this submission. The evidence of the plaintiff was that he and Wendy Brown, his de facto wife, were sitting on the verandah at the back of the house with a good view over the property when the defendant entered through the back gate and commenced to drive his tractor towards the house, slashing the grass as he came. This evidence was very much m issue between the parties and the plaintiff's whole case would have been materially strengthened if his evidence as to those facts had been corroborated by the other person who was sitting with him on the verandah when these events are said to have occurred. The plaintiff had no reason for thinking that he would not need a corroborative witness to support his evidence as to these events on the day of the accident. On the other hand, prior to the start of the trial, the defendant had no particular reason to anticipate that the evidence of Jan Gill relating to events the evening before would turn out to be of critical importance. The plaintiff's statement of claim alleged that the plaintiff had given instructions to the defendant as to the area to be slashed, that a contract had been entered into for the slashing of that area, and that the defendant had proceeded to slash elsewhere and had thus caused the accident. The defendant had no notice prior to the plaintiff's evidence in chief that he would deny giving the plaintiff any instructions and directions, would deny any contract, and would deny that the defendant had inspected the property, received instructions, and commenced work on the afternoon before the accident. In my opinion therefore the defendant is shown to have had good reason for not having Jan Gill available to give evidence. On the other hand no reason appears why the plaintiff did not call Wendy Brown especially when his evidence in chief was going to be inconsistent with material parts of his statement of claim. His Honour was therefore in error in relying on the defendant's failure to call Jan Gill in reaching his conclusion on the credibility of the parties. Indeed in all the circumstances, the only proper inference was one that was adverse to the plaintiff. URJ BOWDEN v METHAM (Handley JA) 9 The trial judge added an additional reason for rejecting the defendant's evidence and accepting that of the plaintiff. He said: "The defendant is uninsured and it seemed to me that he had every reason to manufacture a case in order to offset the financial harm which will befall him as a result of the serious injury which occurred to the plaintiff." There was no material in the appeal book which established that the defendant was uninsured but the appellant took no point on this. It seems therefore that this fact must have been communicated to his Honour during the trial with the consent of both parties. Nevertheless, in my opinion, his Honour was not entitled to rely upon the defendant's lack of insurance in the way he did. There was no reason to suppose that the plaintiff had insured against the financial consequences to himself of this accident. Accordingly, on the probabilities, the plaintiff had just as much incentive to manufacture a case in order to offset the financial harm which had befallen him as a result of his serious injuries as the defendant had. His Honour therefore was in error in relying on the defendant's lack of insurance in reaching his conclusion on credibility. Counsel for the respondent submitted that we should find that his Honour reached his conclusion on credibility independently of these two matters so that these errors were immaterial. I am unable to accept this submission. It is clear from his Honour's reasons for judgment that he relied upon both of these matters in the course of reaching his decision to prefer the evidence given by the plaintiff. He was not entitled to do so and this Court must intervene. Counsel for the respondent, however, submitted that on any view the defendant was guilty of negligence taking his own evidence at its highest in his favour. In these circumstances he submitted that this Court would not order a new trial when the inevitable result must be a finding of negligence against the defendant. It is clear that a new trial will not be ordered if the respondent was entitled, as a matter of law, to succeed on the evidence led at the first trial. See Deane v The City Bank (1904) 2 CLR 198 at 213. Moreover, a new trial should not be ordered where an appellant has "only a problematical and infinitesimal hope of success in the event of a new trial." See Armstrong v Great Southern Gold Mining (1911) 12 CLR 382 at 390 and Balenzuela v De Gail (1959) 101 CLR 226 at 236 per Dixon CJ. It is therefore necessary to examine the defendant's evidence to determine whether the present case falls within these established principles. According to the defendant he and the plaintiff had inspected the area to be slashed close to the house on the previous day and at that stage he had observed no debris "of any kind". The defendant had walked with the plaintiff between most of the passionfruit trellises. When the plaintiff asked the defendant to slash between the rows of passionfruit the defendant asked whether there was any loose wire there and was told that it had all been cleaned up. After the defendant had slashed the area immediately downhill from the passionfruit block, he manoeuvred the tractor to start cutting between the rows. At this point he noticed the plaintiff standing at the top of the block, motioning him to stop. The defendant did so put the tractor into idle, got off and spoke to the plaintiff who said that he had just remembered that a coil of wire was in the way. He said that he had moved the wire to a safe position and would stand there and watch the cut. The defendant agreed that at this stage he did not check in the long grass for any loose wire in the path of the slasher. At one point he said this was because he did not feel this was part of his job and at another he said he did not check because the plaintiff had assured him that the coil he had moved was as that was there. 10 UNREPORTED JUDGMENTS The defendant said he drove his tractor and slasher to the right of where the plaintiff was standing and within six to ten feet of him. He did not agree that this was too close when the person concerned was involved in the job. He said that the slasher had a guard which had an opening to the rear and any foreign material would be expelled rearwards through this opening. He said that "the only dangerous point of the slasher is directly behind it." There was expert evidence from Mr Sankey, an experienced slashing contractor, that "if anybody comes near me I turn the machine off'. However, the judge was not bound to accept this evidence and if he had not taken inadmissible considerations into account it is possible that he would have accepted the evidence of the defendant on the safety issue in preference to that of Mr Sankey. The judge found that the defendant had been negligent on three bases. Firstly that it was imperative that a driver in the position of the defendant should not use the machine when persons were in close proximity. Secondly he held that it was "an absolute duty that they should scour the area where they are required to cut and slash in order to ensure that there are no foreign objects or materials which can become entwined or caught or projected by those slashing blades." Thirdly he held that operators of such machines should warn householders to keep well out of the area. These findings depended, in part, on the judge's acceptance of the plaintiff's evidence in preference to that given by the defendant. In any event the evidence disclosed that the plaintiff had previously used his own tractor to slash various parts of his property and therefore was familiar with the operation and its attendant risks. There was no evidence that a warning by the defendant, such as that suggested by the trial judge, would have told the plaintiff anything that he did not already know. Moreover, according to the defendant's evidence, the plaintiff himself had told the defendant that the area in question was clear and that slashing could proceed. The plaintiff was not in any position of relative disadvantage and no reason appears why the defendant, acting reasonably as between himself and the plaintiff, should not have accepted what the plaintiff told him. In my opinion the plaintiff is in no position to allege that the defendant acted negligently towards the plaintiff by relying on what the plaintiff had told him. The remaining ground of negligence found by the judge that the defendant should not have slashed while the plaintiff was standing nearby, in my view, was based in part on the judge's earlier finding as to what happened that morning and thus cannot be sustained when that finding is set aside. In any event the plaintiff himself had operated a slashing machine, and was aware of the risks. If the plaintiff did stand as close side on to the operating slasher as the defendant claimed this would be some evidence that it was normally safe to do so. The judge found that the plaintiff was also to blame for the accident and determined that his share of responsibility was one-third. Even if this Court had been able to uphold the trial judge's finding that the defendant was guilty of negligence, it could neither sustain his apportionment of responsibility nor make its own determination on that issue. In my opinion the Court must in any event order a new trial to determine the issue of apportionment. However, a trial judge who had not personally decided the issues of negligence and contributory negligence could not properly decide the question of apportionment which requires a comparison to be made between the culpability and causative potency of the negligence of the defendant and the contributory negligence of the plaintiff. URJ BOWDEN v METHAM (Handley JA) 11 A new trial on all issues of liability is therefore unavoidable. In my opinion the following orders should be made: 1. Appeal allowed. 2. Set aside the judgment in favour of the respondent/plaintiff. 3. Remit the proceedings to the District Court for redetermination of the issues of the negligence of the defendant, the contributory negligence of the plaintiff and, if necessary, the apportionment of responsibility. 4. Order that any judgment for the plaintiff in the new trial be based on the assessment of the plaintiff's damages at the first trial in the sum of $305,785.00 and that any such judgment take effect from 23 August, 1989. 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act, 1951; and 6. The costs of the fir t trial reserved for determination by the judge hearing the second trial. ORDERS 1. Appeal allowed. 2. Set aside the judgment in favour of the respondent/plaintiff. 3. Remit the proceedings to the District Court for redetermination of the issues of the negligence of the defendant, the contributory negligence of the plaintiff and, if necessary, the apportionment of responsibility. 4. Order that any judgment for the plaintiff in the new trial be based on the assessment of the plaintiff's damages at the first trial in the sum of $305,785.00 and that any such judgment take effect from 23 August, 1989. 5. The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitor's Fund Act, 1951; and 6. The costs of the-first trial reserved for determination by the judge hearing the second trial. COUNSEL: Appellant: BJ GROSS QC/C WALKER Respondent: JD HISLOP QC/JS GLEESON SOLICITORS: Appellant: PRICE BRENT Respondent: PETER SOCHACKI and CO, MURWILLUMBAH (CITY AGENTS: LLOYD and LLOYD)