GLENCOR CONSTRUCTIONS PTY LTD v EVANS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER, POWELL and BEAZLEY JJA 6 August 1997 [1997] NSWCA 125 Meagher J. This is an appeal by the defendant employer against a decision of his Honour Judge Patten in favour of a plaintiff employee. The plaintiff was employed between September 1985 and November 1985 in a demolition job which involved stripping toilet blocks and demolishing the fittings in those blocks. At the time of the accident he had already stripped seven floors out of eleven and had the contents removed. On 4 November 1985 he was attempting to demolish a cistern which was located approximately one and a half metres above the floor level over a urinal. He checked that the water was disconnected, started to prize the cistern off the wall, hit it with a crowbar and that caused a piece of porcelain to strike him on the left shin. The evidence is somewhat ambiguous and it is not entirely clear what operation he was involved in at the time he used the crowbar. On one version of the facts he was trying to demolish the cistern while it was in situ. On another version he was trying to prize if off the wall and the act of hitting it with a crowbar was an act incident to that operation. In any event, a shard of porcelain did strike him on the left shin and that caused tendon damage which led to pain in the left foot and intermittent foot drop. Since then he has been prevented from climbing ladders and working on stairs. In addition the accident added to his pre-existing back problems and it was the combination of his left leg injury and his previous back problems which interfered with his ability to work after the accident. The plaintiff at the time of the trial had worked only intermittently following the accident and had been in receipt of an invalid pension since approximately 1992. He was hoping after the trial to obtain a job as a security officer in Queensland. His Honour found that he was a witness of truth. His Honour awarded him a verdict in the sum of $81,766.09 after deducting fifteen per cent from a larger amount on the grounds of contributory negligence. The matter which the employer has agitated before us, and if I may say so, with extreme ability, goes to the question of whether there was evidence of negligence or not. It is not in contest that there was a risk of injury in the plaintiff doing what he did. It would be reasonably foreseeable to any normal person that to smash a urinal while it is one and a half metres up on the wall is a dangerous occupation. What is not so obvious is whether there was anything which was reasonably practical from the employee's point of view which he should do to prevent any injury. On the whole the court thinks that there was. There was no effort on behalf of the defendant to supervise what the plaintiff was doing and it would, one would have thought, have been a simple enough matter to instruct the plaintiff, and to insist on the instructions being complied with, that any cistern to be removed from the wall had to be removed in safety as a unit onto the floor where its future fate could then be decided. Maybe it could be smashed on the floor once it reached that situation; maybe it could go down in the lift in its entirety but we 2 UNREPORTED JUDGMENTS do not have to decide what should have been done once it had been removed and laid on the floor. That it should have been removed and laid on the floor seems fairly clear. It is perfectly true, as Mr Hoeben, learned senior counsel for the appellant, pointed out to us that there was not one skerrick of evidence of an expert kind. However, in my view that does not matter a great deal because the risk does not need any expert evidence to become apparent, nor does a reasonably practical means of avoiding injury arising from that risk need any expert evidence and for these reasons I am of the view that the findings of his Honour cannot be assailed and as far as liability is concerned the appeal must fail. The employer also suggests that the amount of contributory negligence assessed was too low. The very factors which demonstrate the obviousness of the risk and the ease with which the risk could be circumvented in Mr Hoeben's submission called for a much higher percentage of contributory negligence than fifteen per cent. In my view whilst the argument has some attraction it should not be acceded to particularly as the decision as to the appropriate percentage of contributory negligence is largely discretionary and, in any event, the employer ought realise that plaintiffs do from time to time act with an inadvertence which is sometimes difficult to understand. But in my view the ultimate upshot of the appeal is that the appeal should be dismissed with costs. Powell JA. I agree. Beazley JA. I agree. Meagher JA. The order will be therefore the order which I propose. Appeal dismissed with costs. Counsel for the Appellant: C Hoeben SC Counsel for the Respondent: P Stone Solicitors for the Appellant: Pieterse & Pieterse Solicitors for the Respondent: T D Kelly & Co