COSMARNAN CONCRETE PTY LTD v ZUVELA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and POWELL JJA 24 May 1995, 6 July 1995 [1995] NSWCA 99 NEGLIGENCE — PROVISION STANDARD EQUIPMENT BY EMPLOYER TO EMPLOYEE — ADAPTATION BY EMPLOYEE OF EQUIPMENT — DUTY OF CARE. FACTS: The plaintiff respondent, Mr Zuvela, was working as an employee of the appellant when he sustained an injury. While driving pegs into the ground with a 14-pound sledge hammer for the purpose of laying concrete formwork, he was struck in the groin by the handle of the hammer. This blow caused a fracture of the neck of the femur, and later the avascular necrosis of the head of the femur. The respondent was accustomed to use a particular sledge hammer the handle of which, although originally of standard size, he had shortened by about 5 inches to increase its safety. Mr Zuvela regarded this adapted hammer as his. On the day of the accident in question, he found that the handle of his hammer had broken; he was then told by the foreman, Mr Nick Nicomedes, to use a standard size hammer, and to work under the direction of Mr Mario Nicomedes. Having pointed out to Mr Mario Nicomedes that a standard size hammer was not suitable for him, he was asked "What are you going to do? Go home or stick with the job?" The respondent started driving pegs into the ground with the standard hammer. HELD: (1) (By Meagher JA, Handley and Powell JJA agreeing) Where a worker, for reasons of safety, needs a hammer the handle of which is adapted to the worker's own personal requirements, the employer does not fulfil the duty of care owed to the worker by supplying hammers which are standard. (2) (By Meagher JA, Handley and Powell JJA agreeing) Where, as in this case, workers are supplied by their employer with the means of adapting standard tools to their own safety requirements, and where the employer encourages such adaptation, there can be no negligence in supplying standard tools to workers. (3) (By Meagher JA, Handley and Powell JJA agreeing) There can be no liability on the part of the appellant employer, because evidence from the plaintiff and from other witnesses fell short of establishing that the appellant forbade the plaintiff to shorten his hammer. Meagher JA The plaintiff Mr Zuvela successfully sued the appellant for personal injuries sustained in an accident when employed by the appellant in late 1986. He had been employed by the appellant since 1976. He was highly esteemed by the appellant. The bulk of his work related to the construction of the formwork for concrete slabs upon which new houses were to be built. The system adopted was that the formwork was attached to pegs, usually wooden pegs, driven into the ground by the plaintiff or his colleagues. As I have said, the appellant regarded him highly. On days when he was engaged in driving these pegs into the ground, he drove between 150 and 200 pegs. He did this with a 14-pound sledge hammer. He was both accurate and ambidextrous in swinging the hammer. He took pride in his physical prowess. He said there was one particular sledge hammer which was his. It originally had a handle of standard length, but he shortened it by cutting off about 5 inches from 2 UNREPORTED JUDGMENTS the end of the handle. When so shortened he regarded it as a proper length for him. He used it all the time, or at least nearly all the time. The appellant's practice was to permit employees to shorten their hammers to sizes which suited them. On the day of the accident in respect of which the plaintiff claimed, he was assigned to a formwork job. He checked his tools and found that the handle on his hammer had broken. He said he was told by the de facto foreman, Mr Nick Nicomedes, to use another hammer - one of standard length - and to go to the job site to work under the direction of Mr Mario Nicomedes, the son of Nick. The plaintiff and Mr Mario Nicomedes were the only two working on the site that day. The accident in respect of which negligence is alleged is described by his Honour as follows: He drove some 70 pegs before a smoko break, and about 6 or 7 pegs after that break. He said that the ground was "hard", which I take to mean unusually hard. As he struck another peg with the hammer, intending to drive it into the ground, the head of the hammer slipped or bounced off the top of the peg, and the end of the handle of the hammer was forced against the plaintiff's groin. On the plaintiff's case, which at this point seems quite unassailable, that caused a fracture of the neck of the femur, which some time later resulted in the avascular necrosis of the head of the femur, and a serious disability. However, at the time, it was thought that the plaintiff was only bruised. The date of the accident was some time - probably a matter of weeks - before 27 October 1986. It is beyond dispute that the injuries suffered were of considerable severity. Brownie J gave a verdict to the plaintiff. The principal issue debated was whether the evidence established liability on behalf of the appellant. The plaintiff's case was simple: he was accustomed to use a shorter hammer; he found that safer and more comfortable; it was more accurate. If the handle is too long, as the handle on a standard hammer is, it is dangerous. His Honour found the plaintiff had established his case. According to this argument, the appellant either knew of should have known all the above facts, and it was in breach of its duty to provide a safe system of work by failing to provide the plaintiff with a hammer suitable for his requirements. As I understand it, the appellant has two answers to this allegation. The first was that the standard hammer with which the plaintiff was supplied was perfectly adequate and quite safe; any skilled workman knew how to handle such a hammer; and an employee can hardly be liable in negligence for supplying this workman with tools which are standard in his industry. This argument does not impress me any more than it impressed his Honour. If the proposition be accepted - and his Honour did accept it - that any workman needs a hammer the handle of which is adapted to his own personal requirements, the employer does not fulfil his duty by supplying hammers which are standard. The second answer, however, seems to me more impressive. This is that the appellant was happy to supply its workers with the means of adapting their individual hammers to their own requirements; it was perfectly content that they should do so; they had often done so in the past, and there was no reason why the plaintiff should not do so on this occasion. Thus, it was alleged, there can be no negligence in supplying readily adaptable tools to one's employees. The evidence on this matter should be briefly summarized. The plaintiff's evidence on the matter included the following: [1] Q. Did you ask him if you could cut off the extra length of the handle or not? [2] A. No. URJ COSMARNAN CONCRETE PTY LTD v ZUVELA (Meagher JA) 3 3] Q. Why not? 4] A. Because he does not give me any answer, he just say let's go to work, he does not talk in the morning. He pick up the sledge hammer for another truck, he put in there, let's go. 5] Q. I suggest to you that you did not complain to Mr Nick Nicomedes at all about the length of the handle of the sledge hammer? 6] A. Yes, I said to him: "Nick, it is too big, that sledge hammer." 7] Q. When you got to the site with Mario Nicomedes you say you also complained to him? 8] A. Yes. 9] Q. Did you ask Mario if you could cut off several inches from the end of the hammer? 10] A. No, he does not say anything. 11] Q. Did you request him whether you could do it? 12] A. No, ask nothing. 13] Q. What did you say to Mario about the length of the handle? 14] A. Because the sledge hammer, I can't say nothing to him because if first to me, he does not do nothing to me. 15] Q. Did you say anything to Mario about the length of the handle? 16] A. Yes, I say: "Mario, the handle too long." 17] Q. What did he say to you? 18] A. He said: "What you going to do, Peter. Work or go home?" 19] Q. Did you ask him whether you could cut off the end of the handle? 20] A. I not exactly sure, anything I ask about it. 21] Q. That is what had happened before, wasn't it, the end of the handle had been cut off? 22] A. In my handle. 23] Q. The old hammer? 24] A. Yes. 25] Q. Why didn't you ask Mario if you could cut off the end of the timber handle on the one you were given that day? 26] A. No, ask nothing. 27] Q. Why not? 28] A. Why I got to ask him? 29] Q. Why didn't you ask Mario if you could cut off the end of the handle with your saw? 30] A. No, he does not give me any chance, we go to work, that's all. He also said: 31] Q. On the day you say the accident happened you were working at that site with him and nobody else? 32] A. Me and him. 33] Q. Nobody else? 34] A. That is it. 35] Q. You were talking with him during the course of the morning? 36] A. No time to talk, he in front, I in back, we not talk. 4 UNREPORTED JUDGMENTS 37] Q. You say you never asked him whether you could cut off that end of the handle? 38] A. I can't remember that, remember that. 39] Q. You can't remember that? 40] A. No. 41] QI think you might have asked him, do you say, to cut of the end of the handle? 42] A. No, he does not say nothing. 43] Q. Why didn't you ask him to cut off the end of the handle? 44) A. Why no ask him? 45] Q. Yes? 46] A. Ino ask him that. 47] Q. Why? 48] A. Why ask him that? 49] Q. You say the handle was difficult to work with, don't you? 50] A. Was difficult. 51] Q. Why didn't you ask him to cut off the end or to let you cut off the end? §2] A. No, I no ask him that. He further said: 53] Q. You say you think you only had to replace the handle on you sledge hammer once what, in seven years? 54] A. Once, twice in seven years time where I work. 55] Q. You say for you the handle would last for several years? 56] A. Depends, could last forever if does not somebody broke it. 57] Q. When the handle was broken who arranged for the handle to be replaced? 58] A. I have to report to the boss, I can't do that. 59] Q. The boss would give you a replacement sledge hammer or would he replace the handle? 60] A. Replace the handle. 61] Q. Would you cut the end off or did he? 62] A. When you get we fix it up, that why you own, own the tools, you cut yourself, you prepare for yourself. 63] Q. Because you have a saw in amongst the tools that you used at the various sites? 64] A. Yes. 65] Q. You say when the handle was replaced, you would saw off the end to shorten it to the length that you liked? 66] A. Yes. 67] Q. Is that right? 68] A. Yes. 69] Q. You say on the day of the accident, do you, that you were told to use the longer handle? 70) 'A. Yes. 71] Q. You say Mr Nick Nicomedes told you that? URJ COSMARNAN CONCRETE PTY LTD v ZUVELA (Meagher JA) 5 [72] A. Yes. [73] Q. Did you ask Mr Nicomedes if you could cut off the end of the handle, as you say had been done before? [74] A. No ask nothing because he does not talk about it, I can't do that myself to cut the handle because the sledge hammer belongs to another truck, we get argument about it, I talk to him first, he does not saying anything to me, I work like that. This evidence was supported by the evidence of a fellow employee called Mr Ciacciarelli. He said: 75] Q. When they came with new handles did they come with a shorter handle or the longer handle? 76] A. Long handles. 77| Q. What happened to them; how did they become shorter handles? 78] <A. If somebody liked shorter handles they just get the saw and get it off. 79] Later, he said: 80] Q. You have seen him at times use the long sledge hammer? 81] A. When the hammer comes we start using with the long handles; when we don't like we get the saw and cut them off. 82] And also: 83] Q. But if people want to have a short handle they get a saw and cut off the end? 84] A. Yes. 85] Q. There is no problem with that? 86] A. No problem. 87] Q. The boss has never said in your hearing, "Don't cut that off? 88] A. No. 89] Mr Nicomedes said: 90] Q. Do you recall Mr Zuvela ever complaining on that day that the handle of the sledge hammer was too long? 91] A. No, I don't. 92] Q. Were there any means available in tools on the truck to shorten the length of the handle if for any reason it was necessary? 93] A. Yes. 94] Q. Can you think of any reason why, if it was found to be necessary, the handle could not have been shortened by some inches by sawing off the end of the hammer? 95] A.No. 96] He later reverted to the topic: 97] Q. Did you ever observe that that was the type of difference in the sledge hammers that some of the men used? 98] A. The sledge hammers there, they both new handle and when they replace new handle they cut it the right size, approximately the same length. 99] Q. They all cut handle, do they? A Yes. 100] Mr Nicomedes, of course, was called by the appellant. 6 UNREPORTED JUDGMENTS It is, however, of little consequence which witness one relies on. All the witnesses tell the same story. That story is that the practice of shortening the hammers was known to, and encouraged by, the appellant; the means of effecting the shortening was simple, well-known to the plaintiff and supplied by the appellant. Why, then, did the plaintiff not avail himself of the opportunity? And, more relevantly, how could Brownie J find for the plaintiff once it emerged that the plaintiff had not availed himself of the opportunity? The answer would seem to be that his Honour took the view that the appellant forbade the plaintiff to shorten his hammer. There is, in my view, no evidence whatever to support that finding. The appellant's evidence, naturally, is to the contrary. But, what is more important, there is no evidence from the plaintiff to support this finding. According to the plaintiff, when Mr Mario Nicomedes and the plaintiff arrived at the job site, he said to Mr Mario Nicomedes "this hammer no good to me", to which the latter replied "What are you going to do? Go home or stick with the job?", evoking a response from the plaintiff"We stick with the job". His Honour obviously believed the plaintiff's evidence, and that means we must also. However, that evidence falls a long way short of a prohibition of the appellant to shorten the hammer, a story which is very unlikely in any event. Why would an employer risk losing a valued employee by prohibiting him from doing what everyone else did with the employer's approval? In my view the following orders should be made: [101] 1. Appeal allowed. [102] 2. Judgment and verdict below set aside. [103] 3. Enter judgment for the defendant below. [104] 4. The respondent to pay the appellant's costs both below and on appeal and to have a Certificate under the Suitors Fund Act. Handley JA I agree with Meagher JA. Powell JA I agree with Meagher JA. (1) Appeal allowed. (2) Judgment and verdict below set aside. (3) Enter judgment for the defendant below. (4) The respondent to pay the appellant's costs both below and on appeal and to have a Certificate under the Suitors Fund Act. Counsel for the Appellant: B Toomey QC with J McIntyre Counsel for the Respondent: CT Barry QC with V Webster Solicitors for the Appellant: Vandervords Solicitors for the Respondent: Plowman and Thom