TOY v THE SHELL COMPANY OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, COLE JJA and Simos AJA 29 August 1996, 29 August 1996 [1996] NSWCA 536 NO DISTURBANCE — of trial judge's finding regarding contributory negligence — no question of principle. Cole JA Hulme J entered judgment in favour of the appellant against the first respondent, The Shell Company of Australia Ltd, on 27 February 1996 in the sum of $111,988. The Shell Company had cross-claimed seeking indemnity from Conrad Constructions Pty Ltd, the second respondent, which was the employer of the appellant. The indemnity was claimed pursuant to contract. Hulme J ordered that the second respondent indemnify the first respondent pursuant to that contract. There is no appeal from that finding. The appellant was injured on 13 November 1991 when, whilst working on the roof of the Shell Refinery, he fell against a tank stand which had been cut from the roof and was lying on it. The appellant was employed by the second respondent which had contracted with Shell to carry out roof replacement. The tank stand, after being cut down, had been moved to the position it was in by employees for whom Shell was responsible and was in the unsafe position in consequence. His Honour held that Shell was negligent. However as the tank stand was or ought to have been obvious to the plaintiff, Hulme J found that the appellant was guilty of contributory negligence to the extent of one-third. That finding has been challenged in this appeal. There was clear evidence that the tank stand over which the appellant tripped had been in its position for some time before the accident. Indeed the appellant gave evidence in which he accepted that the tank stand was "a fairly obvious structure." The evidence disclosed it had dimensions of about 6 to 8 feet square and was something in the order of two feet high. What happened was that the appellant had partaken in the cutting down of the tank stand it seems the day before. It had been moved from the position to which it was then placed on the roof but only by approximately a metre or so. The appellant was aware that the tank stand was where it was on the day of the accident and he had seen people working on it painting it. His Honour's finding that "the stand was a very obvious structure and must have been seen by the plaintiff on numerous occasions during the hours of his work prior to the accident and possibly on the previous day in the position in which it was when he fell over it" was clearly available on the evidence. The appellant walked backwards into the stand apparently without looking when he was seeking to give a passageway to persons who were carrying a sheet of roofing. A Court in considering contributory negligence in circumstances where the employer has failed to provide a safe system of work must have regard to the circumstances and conditions in which the employee said to be guilty of 2 UNREPORTED JUDGMENTS contributory negligence is working. See McLean v Tedman!. It is clear that those circumstances were taken into account by the trial judge and, as the High Court said in McLean v Tedman, the issue of contributory negligence is essentially a question of fact. In my opinion there was clear evidence of contributory negligence on the part of the appellant in not taking care for his own safety by being aware of obvious structures over which he might trip. In my opinion there is no basis for this Court disturbing the finding of fact of contributory negligence or the proportion assessed by the trial judge. The only other matter raised on appeal was the question of whether his Honour erred in determining loss of earning capacity. His Honour said: "I would have assessed past and future economic loss upon the basis that the plaintiff could not work at all for a period of six months after his cessation of work but thereafter he would suffer a loss of income of 50 percent of what he was earning at the time of the accident. That percentage reflects inter alia what I see as his prospects of being unable to find suitable work despite any endeavours which he might make or have made." In my opinion that finding was available to Hulme J and was consistent with other unchallenged findings of fact. Having found that the appellant suffered a disc rupture and consequent pain in consequence of the accident, his Honour held that the extent of the disability suffered by the appellant depended upon the extent of his pain and that depended upon the assessment of the appellant. His Honour had reservations concerning the plaintiffs credibility which are unchallenged on appeal and which this Court would not be entitled to disturb. Hulme J found that the plaintiff had exaggerated his symptoms to various doctors. Having so found, his Honour acknowledged that the appellant was "little equipped by education, training or experience to undertake most forms of employment" and was not equipped to become an estimator. He was not satisfied that there was "'an awful lot he could do" and he was satisfied that he may have difficulty in finding light forms of work not involving heavy manual labour. In those circumstances his Honour made the findings of loss of income earning capacity which are challenged. Having regard to the Trial Judge's assessment of the plaintiff, this ground of appeal fails because the tests necessary to be satisfied before this Court could interfere with such findings based on credit have not been satisfied. See Devries v Australian National Railways Commission2. There is no basis in my view upon which this Court could properly adjust the Trial Judge's findings of a residual earning capacity equating to approximately $150 per week to a figure of $200/250 per week as the appellant suggests. It follows in my opinion that the appeal should be dismissed with costs. Sheller JA I agree. Simos AJA I also agree. The order of the Court is that the appeal is dismissed with costs. Counsel for the appellant: BJ Gross QC Solicitors for the appellant: Amstrongs 1. (1984) 155 CLR 306 at 315. 2. (1993) 177 CLR 472 at 479. URJ TOY v THE SHELL COMPANY OF AUSTRALIA (Simos AJA) Counsel for the first respondent: RN O'Neill Solicitors for the first respondent: Coleman Greig Counsel for the second respondent: PM Hall QC Solicitors for the second respondent: GIO