POONAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, SHELLER and BEAZLEY JJA 14 May 1998, 25 June 1998 [1998] NSWCA 172 EVIDENCE — role of appellate court where trial Judge does not take proper advantage of hearing evidence NEGLIGENCE — duty of care owed by employer to employee The appellant began proceedings against the respondent to recover damages for injuries he suffered in the course of his employment. The appellant's case at trial was that he was not provided with safety footwear and slipped while mowing an area of lawn that sloped and suffered injury. The trial Judge gave judgment for the respondents and held that if he had found for the appellant he would have found contributory negligence. At trial, liability was a central issue and it was put to the appellant that he had made the whole story up. The trial Judge did not accept the appellant as a witness of truth. The argument on appeal was that his Honour, having not accepted the appellant as a witness of truth, rejected his claim without giving due consideration to other evidence which suggested the appellant had suffered a fall. Held: 1. Where a party's evidence is not accepted by a trial Judge, there is a danger that for that reason the party's case, not merely the evidence, is rejected without weighing other evidence which supports it. If the trial Judge's reasons are unsatisfactory or it is unmistakable from the evidence that the trial Judge has not taken proper advantage of hearing the evidence, the matter is at large for the appellate Court: Paterson v Paterson (1953) 89 CLR 212, Mifsud v Campbell (1991) 21 NSWLR 725. 2. There was uncontested evidence which confirmed the appellant's account of the accident. The trial Judge failed to make proper use of the advantage he had in hearing this evidence. 3. The respondent owed the appellant a duty to protect him from slipping and falling by supplying appropriate footwear and by appropriate supervision to ensure that areas that were slippery when wet were only mowed when dry. The respondent failed to take due care for the appellant's safety by not supply and ensuring the wearing of appropriate footwear. 4. The respondent should have been alive to the risk of inadvertence or carelessness on the appellant's part: Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, McLean v Tedman (1984) 155 CLR 306, Bus v Sydney County Council (1989) 167 CLR 78, Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49. There was no basis for the Judge's finding of contributory negligence. 5. The trial Judge took account of all the relevant evidence in making the assessment of damages. It was open to the trial Judge to accept expert evidence that the appellant was not suffering from mental illness as a result of the accident. Authorities: Abalos v Australian Postal Commission (1990) 171 CLR 167 Bus v Sydney County Council (1989) 167 CLR 78 Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 2 UNREPORTED JUDGMENTS Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 Grant v Sun Shipping Company [1948] AC 549 Griffiths v Kerkemeyer (1977) 139 CLR 161 McLean v Tedman (1984) 155 CLR 306 Mifsud v Campbell (1991) 21 NSWLR 725 Paterson v Paterson (1953) 89 CLR 212 Polycarpou v Australian Wire Industries (1995) 36 NSWLR 49 Turner v South Australia (1982) 56 ALJR 839 Watt or Thomas v Thomas [1947] AC 484 Mason P I agree with Sheller JA. Sheller JA INTRODUCTION The appellant, Emmanuel Poonan, began proceedings in the District Court at Parramatta against the respondent, Frank Whiddon Masonic Homes of New South Wales, to recover damages for injuries he suffered at about 8.50am on 24 March 1987 in the course of his employment by the respondent while mowing a lawn at premises known as Raines House which the respondent occupied. The appellant claimed that due to the respondent's negligence, inter alia: (i) in directing him to mow the lawn despite his protests and despite the fact that the lawn was wet and sloping and that it was, or had just finished, raining, and (ii) in failing to provide him with safe and suitable equipment to mow the lawn, in particular non-slip footwear and a lighter more easily manoeuvrable mower; he slipped and fell and, amongst other things, injured his left elbow. His Honour Judge Twigg QC heard the proceedings on 16 and 17 March and 6, 7, 8, 12 and 14 September 1994, when his Honour reserved his decision and allowed time for further written submissions. On 30 January 1996 his Honour gave judgment for the respondent. The appellant appeals from this decision. Judge Twigg said that if he had found a verdict for the appellant he would have found contributory negligence and reduced the damages to be awarded by one-quarter on the basis that the appellant mowed the lawn when he knew it was wet and in his mind dangerous. He rejected the appellant's evidence that he was compelled to do the work under threat of dismissal and found, instead, that he did the work willingly. Judge Twigg assessed damages in case his finding on liability was reversed on appeal. His assessment was as follows: $ Past General Damages 20,000.00 Interest thereon for 9 years at 2% 3,600.00 Past Economic Loss 39 weeks at $248.70 net per week rounded to 9,700.00 Interest on past Economic Loss 9 years at 13% 11,349.00 Fox & Wood Component 233.00 Out of Pocket Expenses 3,622.50 48,504.50 URQDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JAB Rounded to 48,510.00 Less 25% Contributory Negligence 12,127.00 Sub-total 36,383.00 Less Workers Compensation Paid (Rounded) 1,670.00 Total $34,713.0 The delay in this case is unfortunate. The accident occurred early in 1987. The proceedings were not heard until 1994 and not decided until over a year later. Now two years after that the matter comes to this Court on appeal. At the trial liability was very much a live issue to the point that it was put to the appellant in cross-examination that he had made up the "whole story about an accident... so that [he] could get compensation". APPELLANT'S EVIDENCE The appellant began to work for the respondent as a gardener on 9 June 1986. He was required to start work each week day at 7am. The appellant's evidence was that on 24 March 1987 he arrived at Raines House to start work at about 7 am. Present was the head gardener, Mr Shaw known to the appellant as "Steve", Mr Bennett and his supervisor, Mr Alex Johnson. Mr Johnson spoke to him. The appellant gave the following evidence: "While three of us standing there he said that 'I want that lawn mown in front of Raines House' it was a main centre. 'This place should be mowed immediately today'. So the other two boys refused, they said that it is too dangerous, wet and all that. HIS HONOUR: Q. Which other two boys? A. Steve and Robert Bennett. They said that it is too dangerous, didn't supply the safety shoes and all that, it is too risky and Mr Johnson turned around and said that 'I give you instruction, you better go and do it now. If not I'll sack you'. So then I said to him that these two boys had refused, same thing, is too dangerous for me, haven't got safety shoes. He say 'I don't care'. Then I went, took the machine, the mower- LOCKE: Q. If I can just stop you there for a moment. You say one of the gentleman referred to the lawns being wet. Did you notice whether they were wet that day? A. Yes. Q. What sort of shoes did you have with you? What were you wearing? A. Ordinary sneakers I've got it with me. Q. Prior to that day in August 1987 had you ever asked your employer to provide you with safety footwear? A. Yes about nine months ago they took the measurements of our legs and they ask us to pick what type of safety shoes we want and we filled order form and all that was taken to the office and never got it the date till I got hurt. Q. So you'd never been provided with safety shoes? A. No. HIS HONOUR: The question you were asked was whether you had asked for safety shoes. What is the answer to that question? LOCKE: Q. Did YOU ever ask for safety shoes -- A. The....(not transcribable)... came and said everybody must wear safety shoes in whole area, all department, maintenance, gardeners and all that. STEELE: Sorry, who is said to have said this? HIS HONOUR: We will get it slowly, Mr Steele. Q. Would you listen to my question? A. Yes. Q. Did you ask for safety shoes at any time? A. Yes. Q. Not what you were told but did you ask? A. They said that - 4 UNREPORTED JUDGMENTS Q. No, not what they said. You said to me you asked for safety shoes, is that correct evidence? A. That day when I got hurt and those two boys refused that it was too dangerous to go and mow because it is very slippery and all that, haven't got safety shoes and then I turned round and told Mr Johnson that 'I am in the same position, it is too risky and too slippery. I am scared to go and lawn the mower. You didn't supply us the shoes over six months now'. Q. I've got that but at any time before that did you ask for safety shoes? A. Yes. Q. When did you ask earlier than that day? A. About six months ago. Q. What did you say and to whom? A. To Mr Johnson. Q. What did you say to Mr Johnson six months before? A. 'It is too dangerous. A blade can hit our toes and all that, give us the safety shoes' and he said, 'All right, we will place an order'." Mr Johnson denied giving the appellant instructions on that morning and said that neither the appellant, Mr Bennett nor the head gardener, Mr Shaw, had said anything "pertaining to anything that was dangerous at any time." He denied saying to the appellant: "I give you the instructions. You'd better go and do it now. If not, I'll sack you." Mr Johnson's account was supported by the evidence of Mr Bennett and Mr Shaw in so far as they were present on any occasion when Mr Johnson was speaking to the appellant. The appellant took the red motor mower and started to mow an area of grass in front of Raines House which sloped. According to the evidence, the slope may have been as steep as 30 to 45 degrees. The ground was wet with dew. The appellant was wearing his own sneakers, the tread of which had worn through to a smooth surface and provided no grip. The appellant said: "When start the machine up, I was mowing the thing, and then I slipped with a foot of that machine. It was right down to the cement and then I fell, I pushed the machine one side, I didn't want the machine to come on top of me. And then I put my hand like this and I landed on the - HIS HONOUR: Indicating the left hand at the back of his head. Yeah, and then I landed on this concrete pavement, to save my back, back of my head." Later in his evidence in chief he said he was sliding down towards the cement "\..machine and myself both, and I was holding the machine. And I couldn't hold the ground, and I was going with the machine. And I was just sliding towards the cement - concrete pavement and then I push - pull the machine one side and then I fell on top of the cement." Judge Twigg said that he did not accept the appellant as a witness of truth. "His demeanour, his failure to respond properly to questions and the inconsistency of account in his answers all lead me to the conclusion that I cannot accept his credibility." After referring to the appellant's background his Honour said: "T have come to the conclusion on the whole of the evidence that the plaintiff has not discharged the onus of proof that his injuries were caused by the negligence of the defendant. It is not necessary to consider the issue of contributory negligence on the issue of liability. Nor do I find it necessary to make a positive finding that there was no injury, nor an accident which occurred in the manner suggested by the plaintiff. My view of the plaintiff is that his evidence is so unreliable that I cannot accept either the reliability or the accuracy of his evidence. It is not material on which I can safely rely. In deciding whether the plaintiff has discharged the onus, it is not necessary to make a finding as to URRDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JAB whether the plaintiff has made up a story, or exaggerated what he says happened, with the purpose in mind of making good a claim for damages. I have taken into account the plaintiff's evidence as to what happened, the lack of corroboration of the incident, and his demeanour and answers, both in the witness box and to the medical persons, who treated him and reviewed him for the purposes of this action." Speaking of evidence called in support of his claim for voluntary assistance pursuant to Griffiths v Kerkemeyer (1977) 139 CLR 161 his Honour said: "In my opinion, all of this evidence is not merely a matter of faulty recollection. In my view it demonstrates a deliberate concoction of a false story, designed to magnify the helplessness of the plaintiff, and so achieve a large award of damages." A little further on in the reasons for judgment his Honour said: "T cannot be satisfied that the plaintiff suffered a fall. It is unwise to speculate how the plaintiff was injured. I am not satisfied that the ground was in such a damp condition as to cause the mower to slide or turn over. I am not satisfied on the evidence as to the slope of the grade of the spot where the alleged injury occurred." The appellant did not claim, nor was there any evidence to suggest, that the mower had slid or turned over. The appellant's claim was that he slipped on the slope. MR BENNETT'S EVIDENCE The appellant called Mr Bennett as a witness. Mr Bennett agreed that he knew the appellant while he was working at the Masonic Homes at Glenfield and that the appellant's work duties involved mowing the lawns. He said that he had not seen the appellant since the date of the accident. He was aware that the appellant claimed that he had been injured on 24 March 1987. He recalled the appellant starting work on the morning in question and indicated on a photograph where he saw the appellant working initially. He recognised the slope and said that at the time it was about a 45 degree angle. There was a lot of dew "being early in the morning". He said that he had worked in the same area and that when it was wet it was "slippery. I've nearly tumbled myself." He said to the appellant "Just be careful, it is slippery." While he was working away from the immediate vicinity of the appellant using a whipper snipper he heard a scream from where the appellant was working. Asked what did he do he said: "I just went around there with the whipper snipper and seen him on the ground." He put the whipper snipper down not far from where the appellant was. He said the appellant was "laying on his side I think." He indicated on the photograph a position in the vicinity of where he had seen the appellant working. Mr Bennett said: "T asked him is he alright and he looked like he was in a bit of pain so I've gone to the maintenance room and got the maintenance man Bill. HIS HONOUR: Q. Did he make any reply when you said to him 'Are you alright'? A. 'Me arm is sore' or something. Q. But did he make a reply, whether you remember that as the next question? A. I can't remember. Q. Did he make any reply at all? A. I can't remember." He observed a skid mark a bit less than a metre in length. Asked where was the mower that the appellant was using relevant to the appellant's position he said: "TI think that rolled down near the cement path there". 6 UNREPORTED JUDGMENTS The respondent's counsel cross-examined Mr Bennett about where he saw the appellant "after he fell". He agreed that the appellant himself was still on the grass and not near the concrete, probably a couple of metres away from the concrete not far away from the drain or the cement. He was asked about the time that had elapsed since the accident and about the position where on a different photograph the appellant said he fell. He was then asked the following questions: "Q. You made a statement in October 1988 relating to this matter didn't you? A. Yes. Q. You' ve seen that statement again in the last couple of days? A. Yes. Q. That was the first statement you made in relation to this accident? A. Yes. Q. And it was the one closest to the events of the accident, although fifteen months afterwards? Sorry, eighteen months afterwards? A. There's a bit of a mistake in there. I've mentioned Mr Poonan had the whipper snipper but - Q. That's what I was coming to. In that statement you indicated that you thought he was using the whipper snipper that morning didn't you? A. That's what I put down yes. Q. When you made that statement you were doing your best to tell the truth, as you could recall it at that time? A. Yes. After that happened I went to Queensland and had holidays and went to Bali. I just forgot all about it and whoever give me the interview or took my statement, I've just, can't really remember, I just probably agreed what they said. Some of it that I couldn't remember. Q. Don't you think that eighteen months - I mean you wouldn't have signed it unless you believed it was true, would you, is that right? A. Yes. Q. And you accept that in October 1988, eighteen months after the accident, you could probably remember things better than you can now seven years after the accident? A. Not really. I just wiped it after it happened. I thought that would be the end of it, you know. Q. I understand you didn't address your mind to the problem but if you said in October 1988 when you were trying to tell the truth, if you said then that you believed he was using a whipper snipper, isn't that more likely to be the truth than your recollection now seven years after the event? A. No, the more the case has gone on I've realized I'm the one that had the whipper snipper because to have the lawn-mower around the side there's not much grass around there. You just need a whipper snipper to do some trimming up, that's it. There's a lot of blue gravel around there, the rockery, so there wasn't much grass. Q. You say, don't you, that when you heard the yell from him you went around to where he was, you put the whipper snipper on the grass and you ran for assistance or ran or walked or whatever, you went quickly for assistance? A. Yes. Q. Leaving the whipper snipper on the grass near where he was? A. Yes. Q. In front of the wall shown on the photograph in exhibit M2? A. It was around there somewhere. Q. Where you've shown the mark? A. Yes. Q. Don't you think that realistically your recollection eighteen months after would be better than your recollection seven years afterwards? A. Should have been but I mightn't have been paying attention, I don't know but I know it is a mistake. Q. You' re not certain now of the position are you? A. I know I had the whipper snipper. I always used to get the whipper snipper. I liked using the whipper snipper, it was better, it was easier. URQDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JAY Q. If you are so certain of it now how could you have made that mistake in October 1988? A. I mustn't have been paying attention. Q. Can I ask you to look at this document. Do you recognise that as the statement that you made in October 1988? A. Yes. Q. Is that your signature on the end of each page? A. Yes." The statement was marked for identification but not tendered. Mr Bennett was asked about the dew on the ground and said: "I know there was dew on the ground." He agreed that he hadn't heard the appellant make any protests about the work that he had to do that morning to anyone else. It was pointed out to him that in his statement he had not mentioned that he had said to the appellant "be careful, it's slippery". He was asked if he had ever fallen over and said: "I've nearly gone for tumbles, but no I have never fallen over, no". In his reasons for judgment, Judge Twigg referred to a submission on behalf of the appellant that Mr Bennett corroborated or confirmed his version of his accident. "He did not see the plaintiff being injured but heard a scream from the direction where the plaintiff was working and went there and saw the plaintiff on the ground. Hence it is. submitted he confirms that the plaintiff was injured but cannot confirm the manner in which the plaintiff was injured. He confirms there was a lot of dew early in the morning, when asked if the grass, referring to the general area, was wet or dry on the day. Bennett did not hear the plaintiffs protests about the work the plaintiff was required to do." Of this evidence his Honour said: "T cannot accept that the confirmation of some aspects of the Plaintiff's version amounts to corroboration. The confirmation by Bennett that 1. the Plaintiff was mowing at the Defendant's premises at the site where the Plaintiff says he was mowing in an area that was sloping and slipping [sic] without safety footwear using a mower provided that there was wheel marks does not corroborate the essential features as to how the Plaintiff was injured. Mr Bennett did not see the Plaintiff injured, but was in the immediate vicinity when he heard a scream." What his Honour there said is not entirely accurate. Mr Bennett made no mention of the appellant working without safety footwear or of wheel marks but he did refer to a metre long skid mark. In item 3 his Honour used the word "slipping" when he may have meant "slippery" which is what Mr Bennett said. He did not mention that Mr Bennett found the appellant on the ground lying on his side, that he looked as if he was in pain and that he said something. In his evidence, the appellant said that Mr Bennett took him to "the office yard, where the shed is" where he spoke to the safety officer, Mr Wyper, and told him what had happened. There he filled in a form which it appears was a claim form dated 24 March 1987. In it he wrote "While cutting grass with motor mower surface was wet and slippery; I slipped and I fell on the concrete, hitting elbow shoulder, I told my bosses that it is too dangerous to cut grass today. Both of them demanded me to cut grass." AMwRYN 8 UNREPORTED JUDGMENTS THE TREATING DOCTORS' EVIDENCE According to a report of Dr Peter Tjeuw of 26 April 1988, the appellant had been a patient of his since January 1987. Dr Tjeuw reported: "On 24.3.1987 he came to see me following a fall at work. At the time, he was working as a gardener. He told me he slipped and fell, landed on the cement floor. As a result, his left elbow hit the cement floor and he experienced pain from it. There was no other injury reported to me. Physical examination in my surgery at the time revealed a very tender left elbow on the lateral aspect ie lateral epicondyle. Elbow movements were mildly Ltd. X-ray of the elbow revealed no fracture. Mr Poonan was initially managed on triangular sling, analgesia, anti-inflammatory agent and rest taking a few days off work." On 4 June 1987 the appellant was referred to an orthopaedic surgeon, Dr Rasanayakan, who on 7 July 1989 reported to Dr Tjeuw that the appellant was admitted to Bigg Street Private Hospital and had manipulation of the cervical spine done under anaesthesia. He also had surgery for the lateral epicondylitis. Dr Rasanayakan said: "There was a fair amount of oedema of the tissues over the lateral side of the elbow. There was also a fair amount of fluid in the elbow joint itself. There was also hypertrophy of the synovial tissue in the lateral side of the joint. The hypertrophiel synovial tissue was excised. The extensor carpi-radialis brevis origin was released. The wound was closed with a drain. He is to be followed up post-operatively." It was agreed that this report referred to the left elbow which the appellant claimed he injured on 24 March 1987. GROUNDS OF APPEAL The thrust of the appeal was that his Honour, having not accepted the appellant as a witness of truth, rejected his claim without giving due consideration to the evidence of Mr Bennett to the point that he said that he could not be satisfied that the appellant "suffered a fall'. In defence of this conclusion, Mr Maconachie QC, who appeared for the respondent, relied upon what was said in Abalos v Australian Postal Commission (1990) 171 CLR 167 particularly at 178 where McHugh J, with whose judgment the other members of the Court agreed, said: "Consequently, where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate Court cannot act on that evidence to reverse the finding unless it is satisfied 'that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge's conclusion'. Watt or Thomas v Thomas [1947] AC 484 at 488." This case, however, in my opinion, presents a problem of a rather different and difficult kind. Where a party gives evidence in a way which leads the trial Judge to conclude that the evidence cannot be accepted, there is always a danger that for that reason the party's case, not merely the evidence, is rejected without weighing other evidence which supports it. In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA said: " .. it is an incident of judicial duty for the judge to consider all the evidence in the case. It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. URRDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JAD The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case. Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge - as the defendant's denial of having consumed alcohol - may promote a sense of grievance in the adversary and create a litigant who is not only 'disappointed' but 'disturbed' to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634." In that case, Samuels JA expressed the view that the trial Judge's judgment established that he simply excluded evidence critical to an issue from consideration. At 729 Clarke JA referred to what Lord Thankerton said in Watt or Thomas v Thomas [1947] AC 484 at 488, which Dixon CJ and Kitto J cited in Paterson v Paterson (1953) 89 CLR 212 at 224: "The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court." In the present case the trial Judge analysed the matter in a way which led him to say "I cannot be satisfied that the plaintiff suffered a fall". Mr Bennett was subjected to limited cross-examination. The respondent's counsel never suggested to him that he had not heard a scream and then gone to find the appellant lying on his side on the ground in some pain in the area where he had been working and in the vicinity of the mower which he had been using. No real challenge was made to Mr Bennett's evidence that the ground was slippery. Apart from the inconsistency in his statement relating to his use of the whipper snipper on the morning in question, there was no reason not to accept Mr Bennett's evidence. He appeared to be independent. He had not seen the appellant since the date of the accident and apparently arrived at Court on the respondent's subpoena. There also was uncontested evidence from Dr Tjeuw that he saw the appellant that night and observed that his elbow was tender. Subsequently, a surgical procedure was performed on this elbow. All this evidence to my mind amounts to unchallenged confirmation of the appellant's account of what happened. Only one matter was not covered by the evidence, namely, that no one saw the appellant slip and fall, though Mr Bennett saw a skid mark. The trial Judge seems to have misunderstood the scope and effect of Mr Bennett's evidence. His Honour never said that he rejected it. In my opinion, this is a case where his Honour, perhaps carried away by the deficiencies in the appellant's evidence, failed to make proper use of the advantage he had in hearing the evidence. SHOULD THIS COURT INTERVENE? To my mind, the evidence was overwhelming that shortly before Mr Bennett found the appellant, the appellant while mowing the lawn where it sloped and was wet with dew, slipped and fell. The evidence was also overwhelming that in doing so he injured his elbow. On liability, it remains to be resolved whether the appellant's injury was caused by a breach of the duty the respondent as employer owed to him. The appellant did not satisfy the trial Judge that there was an unsafe 10 UNREPORTED JUDGMENTS system of work or that his injury was caused as the result of any negligence by the respondent. Does this mean that the appeal must fail? The respondent submitted that the task of mowing the lawn at Raines House was one of a simple character which did not involve any real hazard if ordinary care was used; compare Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 180. Accordingly, the appellant's injury was not the result of any failure by the respondent to take due care for his safety. The appellant submitted that he was employed to mow a sloping wet lawn without proper footwear, supervision or instruction. The mower was a large industrial petrol powered mower which was not self-propelled. During the appellant's evidence the sneakers he was wearing on the day of the accident were tendered and admitted without objection. The appellant said he had not worn them since the date of the accident. This evidence was not challenged in cross-examination. Mr Simpson, who had expertise relating to slipping and falling on a variety of surfaces, was called on behalf of the appellant. Shown these sneakers Mr Simpson said that they would be little better than thongs because the tread pattern was non-existent and was smooth. Footwear was available in 1987 of a type which would improve the grip. The shoes that the appellant was wearing were basically worn out. In the case of any wet surface, they would be slippery and on grass more so. Industrial safety boots intended to be non-slip as far as possible on most surfaces would provide a co-efficient of friction underfoot of the order of five or six times greater than the shoes the appellant was wearing. Studded shoes would almost eliminate slipping and falling but were not readily available in 1987 except on special order. The cost would be between $40 to $70. In Mr Simpson's experience the dangers of slipping into a lawn mower of the type that the appellant was using involved the risk of major mutilating injury. The respondent called Mr Wyper who, at the time of the accident, was employed by it as a maintenance painter and was a member of the safety committee. Mr Wyper said that the appellant had taken him to the place where he said he had fallen. He identified this as being in an area quite different from the area where the appellant said in evidence that he slipped and fell and where Mr Bennett found him. Shown photographs of the area where the appellant said he had fallen in evidence, he estimated the slope as 30 degrees. He agreed that to his knowledge the appellant had not been supplied with any form of safety footwear by the respondent and that if one was wearing joggers even on a lesser slope you could slip easily on wet grass. He agreed that in the area where the appellant said he was mowing the lawn it would be dangerous because of the slope. Mr Bennett's evidence was that in this area of the lawn it was slippery when wet. He had nearly tumbled himself. He warned the appellant that it was slippery. On this surface the appellant was required to push the mower, itself a source of danger if he lost control of it. On evidence which was hardly contested, I am satisfied that the respondent owed the appellant a duty to protect him from slipping and falling by supplying appropriate footwear and by appropriate supervision to ensure that areas, which were slippery when wet and particularly likely to cause the operator to slip because of the slope and moisture, were mowed only when dry. The trial Judge referred to the appellant's version of how he was injured during other earlier employment which fortified the trial Judge's view that the appellant was not injured at the respondent's premises as he alleged. The trial Judge was not satisfied that the appellant suffered a fall, or that the ground was in such a URQDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JA) damp condition as to cause the mower to slide or turn over, which the appellant did not suggest happened, and was not satisfied as to the slope of the grade at the spot where the alleged injury occurred. These matters aside, his Honour's reasoning for not being satisfied that there was an unsafe system of work or that the appellant's injury was caused as a result of the respondent's negligence was as follows: "He says he protested earlier about the lack of safety boots. Yet when, as he alleges the conditions were so bad as to justify heavy safety boots, he went as asked without such boots to perform what he perceived as risky. On my view of the evidence, there was no complaint to any person in authority on the morning of 24 March 1987 as to the conditions; nor were these conditions in existence at the defendant's premises that presented a danger to the plaintiff. There was not an unsafe system of work. On the evidence, appropriate working tools and clothing were provided to the plaintiff." His Honour made no express reference to the provision of appropriate footwear. If footwear was embraced in the word "clothing" the finding was contrary to the evidence of Mr Wyper. Mr Shaw gave evidence that "safety boots and uniforms........ were supplied" but in cross-examination conceded that he could have been mistaken. Although Mr Johnston said that he definitely supplied the appellant with industrial footwear, he agreed that all he could say was that he believed that the appellant may have been or would have been supplied with such footwear. In my opinion, it was the duty of the respondent, in the circumstances, not only to provide appropriate footwear but to ensure that the appellant wore it. This clearly it failed to do. The respondent failed to take due care for the appellant's safety. CONTRUBUTORY NEGLIGENCE In Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 at 873 the High Court said: "The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task." In McLean v Tedman (1984) 155 CLR 306 Mason, Wilson, Brennan and Dawson JJ at 312 after referring to Ferraloro, Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 218 and Turner v South Australia (1982) 56 ALJR 839 at 842, said: "But these observations should not be regarded as exhaustive statements of the matters to which the employer must have regard. The qualified nature of some of the statements may be explained by the circumstances that contributory negligence was a defence at common law. But the occasion for the qualification disappeared when contributory negligence ceased to be a defence and became a matter of apportionment. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J in Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337 at 343, when he referred to an employer contemplating 'the possibility of thoughtlessness or inadvertence - or to use what is, perhaps, a stronger word, carelessness'. 12 UNREPORTED JUDGMENTS Of course in the present case the foreseeable risk of injury arose not merely from inadvertence or carelessness on the part of an employee, but more particularly from the possibility of negligence on the part of a motorist. It was the chosen method of performing the work that exposed the appellant to this risk of injury. The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer; see Fleming, Law of Torts, 6" ed (1983) p480-p481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands." In Bus v Sydney County Council (1989) 167 CLR 78 at 90 Mason CJ, Deane, Dawson and Toohey JJ said that the law had progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed. "That possibility is now recognised as being relevant to the standard of care owed by an employer to an employee...." Every worker justifiably takes risks in the sense that the worker relies on others to do their duty and trusts they had done it; Grant v Sun Shipping Company [1948] AC 549 at 567 and see generally Glass McHugh and Douglas, The Liability of Employers, 2" ed, at 220- 1; Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 at 69. The appellant's complaint was not merely that the area in which he was required to mow the lawn was dangerous because of the slope and the rain or dew but that he had not been provided with proper footwear or properly instructed as to how to operate the mower in such circumstances. In my opinion, the fact as his Honour found it, that the appellant knew the lawn when he mowed it was wet and "in his mind dangerous", was not sufficient to justify a finding of contributory negligence. At the very least, the respondent should have been alive to the risk of inadvertence or carelessness on the appellant's part let alone the possibility that despite the perceived danger of the task he might attempt it. There was no basis for a finding of contributory negligence and in so finding the trial Judge erred. DAMAGES The appellant also appealed against the assessment of damages and asked this Court to reassess. Because his Honour's rejection of the claim for damages for voluntary assistance flowed from his rejection of the evidence the appellant relied on, the appellant withdrew this part of his claim for damages for the purpose of persuading the Court to reassess rather than order a new trial. A reading of the judgment shows that his Honour's assessment of damages was greatly influenced by his not accepting the appellant as a witness of truth. This being so, any reassessment would, in my opinion, have to be by way of new trial. However, I am not persuaded that the appellant is entitled to a new trial on damages. The assessment of damages took account of all the evidence relevant to it. The trial Judge said "Tn assessing general damages and the capacity of the Plaintiff to work, I have considered the medical reports, the oral evidence and the video of the Plaintiff which was tendered as Exhibit 19. URQDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Sheller JAB Again, I do not accept the Plaintiff as a witness of truth, nor as a person upon whose testimony I could comfortably rely. Where his evidence conflicts with other evidence, especially that of medical experts, I prefer their evidence to the evidence of the Plaintiff. Further, I find that the Plaintiff was neither truthful nor accurate in what he told the medical experts. I have regard to that opinion in preferring the opinion of the defendant's medical experts." The trial Judge preferred the opinion of Dr Shand that the appellant suffered no psychiatric harm as a result of the fall on 24 March 1987. He said that the appellant misled the psychiatrist, Dr Grady, whom he called to give evidence about his mental and emotional condition with particular regard to the accident on 24 March 1987. The trial Judge said that Dr Shand's opinion that there was no continuing psychiatric problem, or adjustment disorder were, in his opinion, logically and soundly based. Dr Shand took into account the appellant's bereavement, his alcoholism and his disturbed behaviour and his depression, but he found clinical nervous disorder and no evidence of psychological factors. Counsel for the appellant submitted that the medical history upon which Dr Shand relied in reaching the conclusions set out in his first report of 5 August 1992 was seriously deficient, in particular because Dr Shand lacked any history about the appellant's psychiatric trauma following the abduction, rape and murder of his ten year old daughter in 1984 and the appellant's subsequent hospitalisation for psychiatric treatment. In that report Dr Shand remarked that he had carried out the psychiatric assessment of the appellant on 22 July 1992 with considerable difficulty due to the restrictions the appellant placed upon the information he was willing to give. He refused to answer questions about alcohol and cigarette consumption, any past or present problems or his marriage and family life. Dr Shand made a further report on 15 February 1994 after a psychiatric re-assessment of the appellant on 9 February 1994. Dr Shand said that the appellant apologised for his behaviour at the last consultation, comprising anger provoked by questions which revived the murder of his daughter in 1984. He was perfectly co-operative on the second occasion and showed no disorder of mood or behaviour. Dr Shand found no evidence that psychological factors played any primary part (in his condition) and that the prognosis of future health and employment remained in the orthopaedic sphere. On 29 July 1994 Dr Shand commented on a report from Dr Grady dated 19 May 1994. He noted that the information given to Dr Grady was in some ways significantly different. Dr Shand said: "Tn the upshot Dr Grady diagnosed 'chronic depression' and related that he sees a psychiatrist at the Fairfield Community Centre every two weeks and takes Normison for sleep and Codalgin as well as Diamicron for diabetes. He told me that he was taking no drugs and made no mention of any consultations with a psychiatrist." Dr Shand expressed the following opinion: "T did not obtain a history of depression, chronic or otherwise, but rather, symptoms of tension with irritability as part of an adjustment disorder and reaction to whatever pain he still has. He also showed no signs of any mood disorder including depression and behaved himself much better than at the previous consultation before which he said he had been drinking, which goes a long way to explain the behaviour referred to in my first report, particularly in view of his admission to Dr Grady that he had been drinking before consultation 14 UNREPORTED JUDGMENTS with him. In short, Dr Grady and I differ about the diagnosis of depression and therefore the possibility of secondary alcoholism. My opinion about results of physical examination on both occasions remains unchanged, which raises the equivalent doubts about the genuineness or at least degree of any nervous disorder." Dr Shand said that connecting any psychiatric condition to the accident depended on there being no other stress factor and the reliability of symptoms. Dr Grady, whom the appellant called, accepted that a psychiatric diagnosis depended upon acceptance of the appellant's history. Furthermore, the trial Judge's finding that the appellant was not an "eggshell" case was supported by evidence given by Dr Shand that vulnerability depended on personalities, strengths and degree of recovery. In the course of cross-examination, Dr Shand agreed that the appellant's history, particularly that relating to his ten year old daughter, would make it more likely that he would suffer psychiatric disorder or a more severe psychiatric disorder after the 1987 accident and the loss of his job: "[i]f he was still vulnerable as a result of the tragedy in 1984, yes". He agreed that if after the 1987 accident the appellant exhibited symptoms such as inability to martial thoughts, to deal with factual matters analytically and accurately, tearfulness, sleep disturbance, lack of desire to go out and meet people, lack of confidence, a general disinterest, lethargy, anxiety, and loss of interest in sexual activity, the work accident in 1987 coupled with job loss was such, on the probabilities, as to produce a psychiatric disorder in the appellant or render some underlying depressive illness worse: "if those symptoms were reliable, yes". Dr Shand's evidence that vulnerability depended on personalities, strengths and degree of recovery and his view that the overall assessment of the appellant psychiatrically depended on acceptance of his word, entitled the trial Judge to reject the vulnerability case. It is fairly clear that the appellant's unreliability in giving evidence extended to unreliability when he described symptoms to the various doctors whose reports were tendered or who gave evidence. This being so, since Dr Shand adhered to his opinion after full cross-examination, it was open to the trial Judge to accept it. This was the principal matter on the assessment of damages upon which the appellant relied to submit that the trial Judge had erred. Otherwise, the extent of the appellant's disability and the causal connection between any disability and the accident depended upon an acceptance of the appellant's evidence. The trial Judge rejected the appellant as a witness of truth. I would reject the appellant's appeal against the assessment of damages. ORDERS I propose the following orders: 1. Appeal allowed; 2. Set aside the verdict and judgment and order for costs in favour of the respondent; 3. In lieu thereof verdict for the appellant in the sum of $46,840 to take effect from 30 January 1996; 4. The respondent to pay the appellant's costs of the hearing and of this appeal but to have a certificate under the Suitors' Fund Act 1951. Beazley JA I agree with Sheller JA. 1. Appeal allowed; URQDNAN v FRANK WHIDDON MASONIC HOMES OF NEW SOUTH WALES (Beazley JA) 2. Set aside the verdict and judgment and order for costs in favour of the respondent; 3. In lieu thereof verdict for the appellant in the sum of $46,840 to take effect from 30 January 1996; 5 4. The respondent to pay the appellant's costs of the hearing and of this appeal but to have a certificate under the Suitors' Fund Act 1951. Counsel for the appellant: B K Donovan QC/D Locke 10 Solicitor for the appellant: David Velleley Counsel for the respondent: J E Maconachie QC/ A A Henskens Solicitor for the respondent: Hickson Lakeman Holcombe