BUSTESCU v TRANSFIELD PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, POWELL and COLE JJA 24 November 1994, 16 December 1994 [1994] NSWCA 37 NEGLIGENCE — injury of worker — no evidence to support verdict for plaintiff — assessment of evidence — direction to jury by trial judge At trial the appellant alleged injury in the course of his work when endeavouring to lift a length of steel with a levering device, claiming it to be due to the negligence of the respondent, his employer. The trial judge held that there was no evidence of negligence or that the tool was inappropriate for the work and so directed a verdict for the defendant/respondent. The appellant challenged the verdict. On appeal, the appellant argued that the trial judge applied the wrong test in making his decision; that instead of deciding that there was no evidence upon which a jury could reasonably find for a plaintiff, the trial judge assessed the evidence so as to form a view as to its weight. Accepting that this might have been so, the Court found it necessary to consider the application for itself. Held: (per Sheller and Cole JJA) The relevant evidence was that the appellant was using the lever to carry out the task for which he was employed when the accident happened. There was no other evidence to support the appellant's allegation that the respondent was negligent. To succeed the appellant had to prove that common knowledge would enable the jury to perceive the existence of a real risk of injury and permit the jury to say what reasonable and appropriate precautions might appropriately be taken to avoid it. There was no evidence of any established practice or any other appropriate and available method of turning the angle iron which would have eliminated or minimised the risk. The evidence provided the jury with no basis for determining the magnitude of the risk or the degree of the probability of its occurrence or how it might be eliminated or minimised. Thus there was no evidence upon which a jury could reasonably find for the appellant. (per Powell JA) Although the appellant's evidence did not contain any clear evidence as to alternative methods of handling the steel, or expert evidence, it did not require any great feat of imagination on the evidence given to foresee that a worker engaged in the tasks expected of the appellant was at risk of injury and that such risk could be avoided or reduced if another worker was available to assist him. Therefore there was evidence upon which the jury could reasonably have found a verdict for the appellant and the trial judge ought to have dismissed the application made to him. ORDERS Appeal dismissed with costs. Sheller JA Introduction Lucian Bustescu appeals from a verdict returned by a jury on the direction of the trial judge, Lusher AJ, and judgment entered thereon, in proceedings brought by the appellant against the respondent to recover damages for negligence. The respondent was the occupier of a factory located at 25 Power Road, Seven Hills, where it employed the appellant. In his statement of claim the appellant alleged that on or about 24 September 1981, in the course of his duties, he was endeavouring to lift a length of steel using an apparatus which itself was a length of steel approximately five feet long fitted with a hook at the end and provided by the respondent for the purpose. Whilst attempting to lift the length of steel the 2 UNREPORTED JUDGMENTS lever spun out from underneath the steel length striking the appellant on the right side of his face causing him injury. The appellant alleged that the respondent negligently failed to take reasonable care for his safety by providing a safe place of work and a proper and safe system of conducting his work and efficient supervision of his work. The hearing commenced before Lusher AJ and a jury on 27 February 1990 and continued on 28 February and | March 1990 on which date his Honour acceded to the respondent's application pursuant to Pt34 R8 of the Supreme Court Rules to direct a verdict for the respondent. Pt34 R8 enables a defendant, inter alia, after the conclusion of the evidence given for all parties, to move the Court for judgment for that defendant in the proceedings generally on the ground that, on the evidence given, judgment for the plaintiff could not be supported. REASONS FOR JUDGMENT OF LUSHER AJ His Honour gave his reasons for judgment on the day after the jury had returned its verdict and been discharged. His Honour referred to part of the pleading and some of the evidence and said that on this material senior counsel for the defendant had submitted "There was no evidence of negligence or that the tool was inappropriate for the work or that it was in any way detective and no evidence of any problem with the use of such a tool, no evidence of any fault in any system or any suggested alternative. There was no evidence from any expert in this field. In short, there was nothing critical offered in relation to what was being done. Finally, there was no evidence of any prior accident complaint or risk or of any other practice. Mr Webb, for the plaintiff, submitted that there should have been some lifting device but that it was not for the plaintiff to establish how it could be done and that the jury could infer that there was a risk of injury." His Honour upheld the submission of counsel for the respondent and found that there was no evidence of negligence to go to the jury. GROUNDS OF APPEAL In the forefront of his submission Mr Webb QC, who appeared for the appellant, argued that his Honour applied the wrong test in making his decision. We were referred to Glass, McHugh and Douglas, The Liability of Employers, 1979, 2nd ed, at 204 where it is said that the trial judge's ruling on an application for a verdict can only be given after the relevant evidence has been fully investigated and considered. "By relevant evidence is meant that part of it which favours the plaintiff s case. Relevant evidence excludes the whole of the evidence called by the defendant except to the extent that it supports the plaintiffs case." In Hocking v Bell (1945) 71 CLR 430 at 442-443 Latham CJ said: "There is sometimes great difficulty in distinguishing between a case of no evidence upon which a jury could reasonably find for a plaintiff (so as to justify entry of a verdict for the defendant) and a case of some evidence for the plaintiff but greatly preponderating evidence for the defendant (where a verdict for the plaintiff can be set aside and a new trial ordered but it would be wrong to direct a verdict for the defendant). Davidson J and Halse Rogers J refer to this difficulty in this case (1943) 43 SR (NSW) at 157,166. But this distinction, though difficult to apply in particular cases, is very real and important. The relevant principle was expressed in Dublin, Wicklow and Wexford Railway Co v Slattery (1878) 3 App Cas at 1168, by Lord Hatherley, who said that he concurred with Mr Justice Baffy's opinion in the court below, viz: 'When once a plaintiff has adduced such evidence as, if uncontradicted, would justify and sustain a verdict, no amount of contradictory evidence will justify the withdrawal of the case from the jury.' The URJ BUSTESCU v TRANSFIELD PTY LTD (Sheller JA) 3 question for the court is not a question whether the evidence for the plaintiff should be believed or not. In the last-cited case at 1155 their Lordships all agreed in this view and they emphasized the importance of maintaining that principle under a system of trial by jury. The headnote fairly states the decision: 'Where there is conflicting evidence on a question of fact, whatever may be the opinion of the judge who tries the cause as to the value of that evidence, he must leave the consideration of it for the decision of the jury.' The judge must leave the case to the jury, because, however preponderating the evidence against the plaintiff may be in his opinion, it is a matter for the jury to determine what evidence they believe." The appellant submitted that Lusher AJ instead of applying the test suggested undertook the task of assessing the evidence so as to form a view as to its weight. This submission has force. His Honour did not in express terms fully investigate and consider that part of the evidence which favoured the appellant's case. For example he made no mention of one significant matter, the weight of the length of steel which the appellant was endeavouring to move. The respondent did not dispute that the test contended for by the appellant was the appropriate test to apply in considering an application under Pt34 R8. It was accepted that the question to be decided was whether there was any evidence that might reasonably to have satisfied the jury that the matters sought to be proved by the appellant had been established; see generally Ritchie's Supreme Court Practice NSW at 2730, note 34.8.1 and the cases there cited. Since I am doubtful about whether his Honour approached the question he was addressing correctly it is necessary that I consider the application for myself THE RELEVANT EVIDENCE The appellant gave evidence that in the course of his work he was required to use a tool which consisted of a steel bar with a circular piece of metal at the end. The circular piece of metal had a number of notches in it. The tool was referred to as a "dog lever". In the course of his work he used this tool "to turn" pieces of iron to positions where they could be lifted by means of a winch. The pieces of iron were various shapes of angle iron. They could thus be turned by fitting the edge of one or other of the angled pieces into a notch in the circular end of the tool and then using. the tool as a lever. How this was done was readily apparent from a photograph which was in evidence. The appellant said that the "boss of the team" showed him how to use the tool and for what to use it. He said: "Q. What was that? A. The heavier things I had to raise with a winch and put them in their place, one of those big heavy things, I had to turn it around because the winch couldn't get it on. Q. I was asking you how it was that the man showed you in the beginning to use the tool. I wasn't asking you about the accident? A. Just to turn this piece of iron so that I should be able to take it by the winch." He said that he did that from the time that he started work with the respondent on 11 June 1981 until the date of the accident. He was asked what he did on that day and gave the following evidence. "Q. What were you doing? A. I was working. Q. What work were you doing? A. This big pole had to be zinced and I had to take it and take it there for this operation. I had to put it on the machine, on a car and I had to take it there to be zinced. Q. How were you going to get it onto the car? A. I had to turn it, take it with the winch and put it in the car. Q. Was it too heavy for you to lift to put in the car? A. I couldn't raise it at all. 4 UNREPORTED JUDGMENTS Q. Do you know how heavy it was? A. 500 or 600." It can be accepted that the 500 or 600 is a number of kilograms. The appellant then gave the following evidence: "Q. You said you had to turn it so that you could attach it to the winch? A. Yes, to catch it and put it in the car. Q. How did you do that? How did you attempt to turn the piece of steel? A. Thad a big iron bar with which I put it underneath and that is how I could do it. Q. Did you use an iron bar like the one shown in those photographs? A. No, it was bigger and thicker. Q. Did it have the same circle on the end with notches in it? A. Yes. Q. How did you attempt to turn the piece of metal using that bar? A. I had eve g prepared. I had this bar on the table in front and I had to take it, it was put on each side and there were some pieces on which it rested. I had to turn it around. I couldn't take it by the winch until I had turned it. Q. How did you try to turn it? A. It was an iron bar. Q. How did you use the iron bar? A. There were different parts separated and I had to turn it and that's where I put it in. HIS HONOUR: Q. How did he turn it? Can he describe it or not? A. If you give me a ruler I can explain with a ruler. Q. Just tell him to try and explain it to us. What did you do? A. About 50 metres this pole was. It wasn't only one piece and I had to take all those pieces and put them in the car. This other one I couldn't turn around because it was exactly this position and I couldn't catch it to take it with the winch. WEBB: Q. Explain to us please how you were holding the iron bar just before you were injured? Would you show us using your hands please? A. I was taking it from down (indicated). HIS HONOUR: Q. How did he hold the bar? A. With both hands in this position (indicated). (The witness demonstrated by holding two hands out with elbows down towards his side roughly parallel to the ground at waist length). WEBB: Q. What did you do with the bar? A. I had to put it underneath, turn around and then bring it over." The appellant's counsel submitted that this evidence demonstrated that the appellant turned the bar by pushing the lever away from him and that on the occasion in question in the course of doing this for some reason the lever "snapped back" and hit the appellant injuring him. Dr Norman, who examined the appellant, said that he had a relatively undisplaced fracture of the cheek bone and a possible fracture of the lower jaw. These injuries were consistent with being struck in the face by the iron bar with moderate to severe force. The appellant was not cross examined on that part of his evidence which dealt with the nature of the work he was doing and the way the accident took place. The appellant called Giovanni Filippe, an employee of the respondent under whose direction the appellant was working at the relevant time. He said that the appellant was required to use the lever in the course of work he did under his direction. He said that the lever was used "Just for turning an angle iron which you can only turn it you can put a hook and lift it up." He remembered the occasion when the appellant had the accident. He said: "The lever which turned back when he was turning the handle and hit him in the head. " He actually saw the accident. Mr Filippe had prepared a written statement which was in evidence. In that Mr Filippe said of the appellant: URJ BUSTESCU v TRANSFIELD PTY LTD (Sheller JA) 5 "He was turning over an angle iron on the ground, the angle iron be' g about four or five metres long. He was using an implement I call a fork. I remember as he was pulling the fork it somehow came loose and hit him a glancing blow on the side of one of his temples." On this material it was open to the jury to conclude that the appellant was required by the respondent in the course of his work to use the dog lever in a particular way for the purpose of turning lengths of angle iron and that on the day in question he was so using the lever for the intended purpose when he was injured. Part of the work the appellant was required to do was to turn in this particular way a piece of angle iron weighing 600 kilograms and about 5 metres long. Mr Hall QC, who appeared for the respondent, urged that there was insufficient evidence to show that the appellant was using the lever in the way intended and nothing to suggest that he was not using it in some unauthorised way which resulted in the injury. However I think it was open to the jury to conclude that at the time of the accident the appellant was endeavouring to turn the angle iron with the lever in the way he had been told. This inference is strengthened by-the fact that the work was being done under the direction of Mr Filippe who saw the accident occur. There was some debate as to whether the evidence or a reasonable inference from it was that the appellant was attempting to turn the angle iron by pushing the lever away from him or, as the evidence of Mr Filippe would suggest, by pulling it towards him. However I do not regard this as being of any significance in this appeal. In my opinion, the relevant evidence was that the appellant was using the lever to carry out the task for which he was employed by the respondent of turning a 600 kilogram angle iron about 5 metres long when the accident happened. There was no other evidence to support the appellant's allegation that the respondent was negligent. In the course of his reasons for judgment after referring to those paragraphs in the statement of claim dealing with the events of 24 September 1981 Lusher AJ said that the evidence did not quite support the statement of claim "but nothing turns on that". This may have been a reference to the allegation in the statement of claim that the appellant was endeavouring to lift a length of steel in contrast with the evidence that in the way described he was attempting to turn a length of steel. NATURE OF THE APPELLANT'S CASE The appellant put its case in two ways. Either the respondent failed to provide and maintain a proper system for moving the lengths of steel in such a way that it would not have been necessary to use the levering apparatus or alternatively a system whereby the lengths of steel could be moved without the danger of the respondent being injured with the levering device provided. In Neill v NSW Fresh Food and Ice Pty Ltd (1 963) 108 CLR 362 at 369, Taylor and Owen JJ said that in order to enable an injured worker to recover damages from his or her employer the evidence must be such as to justify a finding of negligence on the part of the employer and, if the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the worker to risk of injury. It must appear that the employer failed "to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation": see per Lord Tucker in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 195. Their Honours indicated two ways in which the question whether or not there had been such a failure on the part of the employer might be resolved. The first was by the application of common knowledge. In such cases their Honours said, 6 UNREPORTED JUDGMENTS at 368, "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 to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it." Such cases were exemplified by Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 where the question was whether a worker, who, in the course of raising by hand a bucket of molten bitumen high enough above his head for another man to reach it, spilt the bitumen over the side of his face and his arms, had established that his employer was liable to him in damages for the injuries which he sustained on the ground of a failure in the employer's duty of care for the safety of a worker employed by him. in other cases: O eneeseees it may be necessary to show a departure from long established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimise the risk was reasonably available. Additionally, of course, it must appear that the plaintiff s injuries would have been prevented if the standard practice or the alternative method had been employed. No doubt also the answer to this question may, in many cases, follow almost as a matter of course....... the onus of establishing this proposition is always on the plaintiff." (per Taylor and Owen JJ at 369-370) Here to succeed the appellant had to prove that common knowledge would enable the jury to perceive the existence of a real risk of injury and permit the jury to say what reasonable and appropriate precautions might appropriately be taken to avoid it. There was no evidence of any established practice or any other appropriate and available method of turning the angle iron which would have eliminated or minimised the risk. In Smith v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 337 at 341-342, Taylor J said: "There is, one might an element of risk in the performance of the most simple of operations in an industrial establishment; sometimes the risk is both grave and apparent whilst in others it may be said to be trivial and remote. Between these two extremes the degree of risk may vary infinitely. But if the risk is real and not merely fanciful reasonable care must be taken by the employer to avoid it and this duty may be performed either by devising a method of operation which does not involve such a risk or by the provision of appropriate safeguards." In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J, as he then was, at 47-48 said that when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. It does not follow that a risk which is unlikely to occur is not foreseeable. His Honour went on: "Tn deciding whether there has been a breach of a duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's URJ BUSTESCU v TRANSFIELD PTY LTD (Powell JA) 7 position....... The existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." While the risk in the present case may not have been far fetched or fanciful the evidence provided the jury with no basis whatever, except speculation, for determining the magnitude of the risk or the degree of the probability of its occurrence or how it might be eliminated or minimised. Taking account of all the evidence most favourable to the appellant common knowledge or common sense would not enable the jury to say what reasonably and appropriately might have been done to avoid it. Hence, in my opinion, there was no evidence upon which a jury could reasonably find for the appellant. CONCLUSION The appeal should be dismissed with costs. Powell JA In his Judgment, which I have had the opportunity to read in draft, Sheller JA has set out the relevant facts and the test which, so it appeared to have been accepted by counsel for the Respondent on the hearing of the appeal, Lusher AJ was obliged to apply when dealing with the application which was made to him at the conclusion of the evidence which had been given at the trial. That being so, it is not necessary for me to deal, in any length, with those matters in these reasons. I am however, unable to share His Honour's conclusion that there was no evidence upon which a jury could reasonably have found a verdict for the Appellant. True it is that the evidence which had been tendered on behalf of the Appellant did not include any clear evidence as to alternative methods of handling the steel, and still less any evidence from any expert if there be one - in the field, but that, in my view, was not fatal to the Appellant's case. On the contrary, it seems to me that the present is one of those cases in which the suggested deficiencies in the Appellant's case might legitimately have been overcome by a resort to common sense. I say this since the evidence would indicate that the work which, relevantly, the Appellant was employed to carry out, involved him moving lengths of steel or iron of varying shapes and types - H-bars, angle iron, and the like - of various lengths - including, as in the present case, lengths of 5, or 6, metres - and of varying weight - including, as in the present case, of 500 or 600 kilograms - that work, when it involved turning the lengths of steel or iron while on the ground as part of the process of manoeuvring it to a winch, or hoist being carried out unaided and using what appears to me to have been a fairly simple - even primitive - tool, the "dog lever" to which Sheller JA has referred. While it may be that such a system of work may not have exposed a worker to any great risk of injury when attempting to turn lengths of steel or iron which were not of any great length or weight, it required no great feat of imagination, in my view, to foresee that a worker who, as in this case, was required, unaided and using only a modified crow-bar, to turn, or roll, a very heavy, and unwieldy, length of steel or iron, could wen have had difficulty in doing so, and that, if he did lose control of either the length of steel or iron, or of the "dog lever', he could well be injured. Nor, so it seems to me, does it require any great feat of imagination to enable one to see that the risk to which a worker would otherwise be exposed when carrying out such an operation as I have just described would be avoided, or, at least significantly reduced, if another worker was available, as required, to assist him. 8 UNREPORTED JUDGMENTS This being so, I am of the view that there was evidence upon which the jury could reasonably have found a verdict for the Appellant, and that Lusher AJ ought to have dismissed the application which was made to him at the trial. In my view the appeal should be upheld and a new trial directed, the 5 Respondent paying the Appellant's costs of the appeal and, if qualified, to have a certificate under the Suitors Fund Act 1952. The costs of the first trial should abide the result of the new trial. Cole JA I agree with Sheller JA. 10 Appeal dismissed with costs. Counsel for the Appellant: P Webb QC/B Shields Instructed by: Gunn Hamilton and Blay Counsel for the Respondent: PM Hall QC Instructed by: Hunt and Hunt