BAULDERSTONE HORNIBROOK PTY LTD v DON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY and POWELL JJA 17 April 1998, 4 September 1998 [1998] NSWCA 33 NEGLIGENCE — PROCEDURAL UNFAIRNESS NEGLIGENCE — PROCEDURAL UNFAIRNESS IN THE CONDUCT OF THE TRIAL — The appellant was employed by a glass making company, ACI, to rebuild a furnace in their factory — trenches were dug in the basement and barricades set up some metres away — there was a molten glass "leak out" from under the furnace in the basement and the water used to cool it down immersed the construction zone concealing the trenches — the respondent, an employee of ACI attending the emergency site, miscalculated a trench boundary and fell in, suffering severe burns from the liquid in the trench — the trial judge held that the respondent's injuries were a foreseeable result of the appellant's negligence in failing to adequately mark the trenches, not of any negligence of ACI — contributory negligence found and assessed at 20%. The appellant's principal submissions were: 1. it was not under a duty of care to the respondent at the time of the accident; 2. that there were procedural defects in the conduct of the trial; 3. Garling DCJ erred in law in not finding the respondent's employer, ACI, negligent either solely or concurrently with the appellant; 4. his Honour erred in law in accepting expert evidence which was not based upon factual evidence before the court; 5. Garling DCJ erred in law in certain factual findings. Held (by majority, Powell JA dissenting): 1. it was foreseeable that a trench with unmarked edges could result in someone falling and on the evidence it was open for the trial judge to find that had the trench been adequately marked it was likely the respondent would not have fallen in. There was a duty of care in the circumstances; 2. the course of the trial fully negated all the complaints of procedural unfairness; 3. ACI was not negligently implicated in the injury suffered by the respondent. Garling DCJ's conclusion, based on the material before him, was justified; 4. there was sufficient correlation between the facts in evidence and those upon which the expert based his opinion; 5. there was evidence justifying the trial judge's factual findings and no error was shown warranting any interference with them. Mason P I agree with Priestley JA. Priestley JA The appellant in this appeal is a company which I will call Baulderstone for short. It was ordered to pay damages by his Honour Judge Garling, the trial judge in the District Court, to the plaintiff in that court, the respondent here, Mr Don, for injuries he suffered in the factory of his employer, a company I will call ACI, in April 1992. ACI made glass in this factory. Mr Don was an engineer who was ACI's furnace manager at the factory. The respondent suffered his injuries at about 10.30pm on 9 April 1992. At that time Baulderstone had been working for some weeks in the ACI factory doing work connected with the rebuilding of a furnace in the factory. As part of this 2 UNREPORTED JUDGMENTS work, men for whom Baulderstone was responsible had dug trenches in the basement level of the factory. Baulderstone was in charge of the area where this work was going on. While it was being done ACI employees were carrying on ordinary production work in the basement. ACI forklift drivers had to move their forklifts quite close to where the trenches were being dug. The basement was fairly poorly lit and steamy. To keep ACI employees away from the Baulderstone work area and the trenches, Baulderstone used barricades set up around the trenches some metres away from them. In the morning of 9 April 1992 at a meeting with Baulderstone personnel the respondent raised a point, which he had raised with them before, that the barriers were not being maintained properly. Later that day, the respondent finished his ordinary working hours and went home. There, at about 9.30pm, he received a call from the factory that there was "a glass leak-out from under" a furnace in the basement. He immediately went back to the factory. The Baulderstone personnel, who had been working on their job at the time the leak began, had been required to move themselves from their working place while the emergency was being dealt with. The respondent, after giving instructions to various people and informing himself of the situation as well as he could, went into the basement where two firemen were playing a hose on molten glass flowing from the leak. The respondent said in his evidence in chief that then: "T... moved past the firemen along the line of the furnace columns alongside the trench to have a closer look, didn't get too close, there was a lot of water and glass flowing about, turned to come back again, passed the firemen, went to step over what I thought was the end of the trench and it was very difficult to see where the end of the trench was, and miscalculated I guess and stepped into the trench instead." The respondent fell forward into the trench which was 400 mm deep and his whole body with the exception of his head was covered by the liquid in the trench then at such a heat that he was badly burned. It was for the injuries he then suffered, and their consequences, that the respondent sought damages. He brought his claim against Baulderstone alone. His counsel told this court that his employer was not joined as a defendant because of a combination of two reasons. The first was that it was not thought that the respondent had a case against his employer. The second was that to have made the employer also a party to the proceedings would have created quite considerable complications, some having possible adverse effects so far as the respondent was concerned, due to the amendments to the Workers Compensation Act made in 1991, of which s151Z is a well known, but not easily understood, feature. In the respondent's statement of claim, facts were alleged along the lines of the summary I have already given showing how it was that the respondent came to be in the factory basement checking the emergency situation. In paraS it was then alleged: "\.. After making that check he was endeavouring to leave the basement when he inadvertently stepped into a trench around which a plastic barrier had not been erected and which had become filled with hot water." Para7 then alleged that the respondent's injuries were caused by Baulderstone's negligence of which the following particulars were given: "7) Failing to erect plastic barriers or any other form of barriers around the trench. ii) Failing to erect plastic barriers when reminded to do so. URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Priestley JA) 3 iii) Failing to cover the trench over with boards or planks. iv) Failing to take any of the above steps when it was known that the furnace was not in good condition and was virtually at the end of its operational life so that employees of ACI Glass Packaging Ltd might be required to attend urgently to it at any time." Prior to the hearing in the District Court (which was on 8 and 9 November 1995) an expert's report dated 9 October 1995 obtained by the respondent's legal representatives from Mr C G Simpson, Consulting Engineer, was served upon Baulderstone's solicitors. This report began by recounting what Mr Simpson had been told concerning the circumstances leading up to and of the accident. The last five paragraphs of the report were as follows: "Tn the view of the writer, this accident is one that clearly illustrates the need for distinctive barricading of open trenches and the like during construction and/or excavation work. Whilst persons, such as the Plaintiff, may well be aware that a trench is in existence in the area circumstances commonly arise, and not only in emergency situations, whereby persons do not see, or cannot be accurately informed of, the location of such a trench. In the normal course of work and the like, the attention of people is clearly directed elsewhere and unless a distinct visual or tactile barrier exists, in the view of the writer, then there must be a distinct and foreseeable likelihood that persons, such as the Plaintiff, will inadvertently step or fall into the excavation. In this instance, even in the presence of the water, mud and steam, had a distinct boundary of the trench been erected as originally requested by the Plaintiff earlier that day, then the Plaintiff would have been given the opportunity to locate the apex or change in trench direction and thus allow him to step over it at a location that was narrower, and hence he would then have been most unlikely to have fallen into the hot water filled trench. By placing barricades along the lines of the trench, changes in direction of the trench can be clearly seen". When the case came on for hearing before Judge Garling, counsel for the respondent made a brief opening statement. He summarised the facts and then explained the case which the respondent was bringing against Baulderstone. He said: "Now your Honour the case is against the defendant that it was responsible for this work, and it had left an open trench there with some reinforcing steel in it and the trench was not at least barricaded along its edge close to the edge and it was not covered over with planks or plywood. There was no sign up to indicate it and although the plaintiff as I said knew in general terms that it was there and was indeed endeavouring to get over it he made because of the conditions and because of the situation of some emergency and he was thus moving quickly and had his mind on other things he was inadvertent and he made a misjudgment and he went into this trench. If there had been barricading or planking to cover it over the accident wouldn't have happened, he'd have been well and truly aware of where the edge of the trench was and he would have been prevented from getting into it. Your Honour the only barricading was back further and it had been a constant source of trouble to the plaintiff and he was frequently speaking to senior supervisory staff of the defendant about that barricading, and they did nothing about that and they had absolutely no barricading or planking at all over this trench. And your Honour that's essentially the allegation." 4 UNREPORTED JUDGMENTS Mr Don was the first witness in the case. His evidence was to the effect of the summaries of his case that I have already set out. Later, when giving judgment, Garling DCJ said that he totally accepted the respondent and his evidence, that he was an excellent witness, had a good clear memory, "was not really challenged to any degree" and was very impressive. It thus appears that the respondent's evidence was not challenged as to substance at the trial, and the appeal had to be conducted on the same basis. The following evidence was obtained from the respondent in examination in chief. "KING: Q. Mr Don, from the time those trenches were excavated until the time of your accident were they open trenches at all times? A. Yes they were open trenches at all times. Q. There was never any plywood or planking over the top of them? A. No there wasn't. Q. The only barrier was this one that you've spoken of which was some two or three metres back on the day of your accident before you were called in? A. That's correct. Q. You knew that the trenches were there? A. Oh yes yes, although I was not responsible for them I guess I just took an interest in what was going on. Q. What was the condition of the floor in the vicinity of those trenches, there'd been excavation through the concrete floor into the earth below? A. The concrete floor had been sawn with a concrete saw. The concrete was then jackhammered up. The floor was extremely thick in that area.. (not transcribable)- but it was probably more than a foot thick. Underneath that was clay and rock, loose rock. In the area around it there was.. (not transcribable).. being the building equipment the rock hammers and shovels and the like, also reinforcing rods which were going to be used to put into the - were laying around in various areas. There was also piles of rubble which would have been clay, rock; concrete and general material, excavation material, lying in various parts around the edges of the - at various times the floor itself even when it was - the rubble was removed was covered in little bits of concrete and the remnants of clay and the like. Q. As you were moving back from having a look at the area where the molten glass was coming down from the leak were you able to see in the conditions the trench and the edges of the trench? A. No. The area itself - obviously there was glass coming out of the furnace and in excess of 1,500 degrees, there was water being played on it. There was a very very large amount of steam coming off that glass that was falling down, the majority of which went straight up. But indeed the basement is only a low roof height, it's only about three metres high, it's not a high roof area and the whole area was very foggy with the fog. Now the water coming along the trench - the trench itself was full of water and overflowing so hence the level of water in the trench and the level of the water around in the whole area for many many metres around would have been probably something like between five and ten centimetres above the normal floor level. It wasn't obvious where the edge of the trench was." Towards the end of the respondent's evidence, the court adjourned until the following day when Mr Simpson travelling by plane to Sydney, was due at lunch time. In the morning two further witnesses were called in the respondent's case and then two witnesses in Baulderstone's case were interposed. Neither of these URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Priestley JA) 5 was an expert. They were two of the men who had been working on the Baulderstone job. Their evidence went principally to the point that they had left their work area when the emergency began. Mr Simpson entered the witness box at 3pm. He was the last witness in the respondent's case in chief. In examination in chief the respondent's counsel sought to tender the report of 9 October 1995. There was then some confusion. Judge Garling remarked, correctly, that he thought it had already been tendered. In fact it had been tendered the previous day as part of Exhibit B (which was principally a collection of medical certificates and reports) apparently inadvertently, in the sense that neither counsel for the respondent nor for Baulderstone noticed it, although the judge did. Nothing turned on this as the report had been duly served before the trial and Baulderstone's counsel knew that the expert who had made it was being called to give evidence. In his examination in chief Mr Simpson was asked and gave his opinion on various matters, including the following: "KING: Q. Mr Simpson, Id like you to assume that Mr Don whilst endeavouring to step across the corner of a trench, the presence of which he was aware in general terms having seen it over a period of time, but endeavouring to do so on an evening when there was a lot of steam around and there was a lot of water on the surface so that the visibility of the trench was obscured missed his footing, stepped into it and fell full length into it suffering burns. Id like you to assume that there was no barricading of any kind at the perimeter of the trench to indicate its corner or indeed the outer edge of the trench. If that were the situation, in your view did the absence of any such barricading create a risk of injury? A. Yes. Q. Even if there'd been no steam and no water on the floor surface and in the trench, would the absence of barricading in your view create a risk of injury? A. Yes. Q. What is the risk of injury? A. The risk is of people inadvertently stepping into or falling into the trench and that risk come about because persons in the area have their attention drawn elsewhere by whatever the task is that they have in hand at the moment and unless they have some visual or tactile stimulus to remind them of the presence of what may otherwise be obvious dangers, accidents such as falling into trenches and the like will happen. And do happen." The foregoing evidence is significant in this case. It was not objected to. A question was raised in the course of argument in this court whether it was strictly admissible even as expert opinion. I express no opinion on that. The point is that the evidence was, without objection, before the judge. No expert evidence to the contrary was tendered by Baulderstone. Later in examination in chief there was the following evidence: "Q. Would you regard it as good building practice in any conditions to have the corner of trenches at their edges marked out by those barriers you're speaking of? A. Yes, indeed I - Q. How many do you need? A. On that plan, you could do it with six, maybe eight pegs. There doesn't have to be infill between them." The plan referred to, Exhibit D, showed two trenches. A question arose in the appeal whether Mr Simpson's reference to "six maybe eight pegs" was intended to refer to the necessary pegs for one or both trenches. From the context and a 6 UNREPORTED JUDGMENTS subsequent answer of Mr Simpson's (in cross examination at AB 95, O-P) it seems to me probable that he was referring only to the trench in question in the case, that is, the one where the respondent fell. At the end of his examination in chief Mr Simpson was asked to look at the second last paragraph in his report and then "\.. to assume that the evidence has been that the plaintiff didn't request a barrier at the edge or perimeter of the trench or at the corner of the trenches, he was concerned with a barrier which was some distance back which in effect marked the point of departure between the area of operation of his workforce and the area of operation of the Baulderstone Hornibrook workforce. A. Right. Q. If you make that correction, does that alter your view in any way? A. No." Cross examination of Mr Simpson then followed. Counsel for Baulderstone immediately took up the question of pegs mentioned by Mr Simpson near the end of his examination in chief: "Q. A peg? A. Pegs are what are normally used. Q. Yes, to show where the corner started, that right? A. Yes. Q. So that if Mr Don was going to jump across the trench diagonally, the peg wouldn't have made any difference at all, would it? A. Yes. Q. I mean it would have shown him where the apex of the corner was if you like. A. It would show him the inner and outer apex, there'd be further pegs that show further along where the line of the trench runs. Q. We're talking about pegs, are we? A. Yes, normal building pegs. Q. Similar pegs for instance to those seen on an ordinary house construction site, foundations, that sort of thing? A. Yes. Q. You were not told of anything to do with that type of peg or boundary or marker were you when you went out to look at - when you were given instructions about this, were you? A. What, that there were some present? No. Q. You were dealing with, as I understand it, a barrier that you thought the plaintiff had ordered to be erected, isn't that right? A. Yes. Q. So that you might tell us when it was that you were first asked to consider the question of the pegs demarking the boundaries of the trench? A. That's what I've dealt with in the report. The whole purpose is to mark out the extremities of the trench. Q. Tell me, you've said you' ve worked on a lot of building sites where you' ve been on building sites and you've actually managed one as I understand it. A. Yes. Q. Do you say that in every building site on every trench in a building site there are markers put alongside the trench in your experience? A. It's difficult to say on every one but I don't recall one that it hasn't been done. Q. There are certainly markers to tell people where to dig them aren't there? URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Priestley JA) 7 A. Yes. Q. But insofar as any peg to show for the purpose of warning people, let me suggest to you that's not the case. A. I'll disagree. Q. You say on every site whenever you dig a trench somebody puts a warning marker up, is that right? A. Yes, it's usually just a piece of reinforcement rod about three or four feet Q. Yes, bit hard to put - A. - stuck in the ground Q. - reinforcement in this situation where it's concrete flooring. A. Yes." The trial judge dealt with the case as presented to him. As already noted, he fully accepted the respondent's account. His further material findings were that Baulderstone knew or should have known the furnace was being replaced because it was old; Baulderstone knew that ACI employees would be in the area of the trenches; Baulderstone left open trenches without any marking which would have helped anyone unfamiliar with the trenches to see clearly where they were. He went on: "T accept as Mr Simpson says the defendant should have marked the trenches. That is proper building practice. I accept that if they had marked those trenches, there was every likelihood that the plaintiff would not have stepped into it as he clearly would have been able to see where the trench was. It was quite foreseeable in my opinion that working in these conditions employees of ACI and other people, unfamiliar with this section of the basement and this section where the work would have been carried out, may come down to the site for various reasons. It was foreseeable that there might have been an emergency in that area of this type and the defendant's men should have marked the trenches, to guard against persons inadvertently stepping or falling into the trenches. It was proper work practice to take appropriate safety measures on a site such as this. It must be remembered they were working on another company's premises and employees of that company were in and about the area and it was their duty, I am satisfied, to clearly mark those trenches. lam therefore of the opinion that the defendant's argument must fail. I find that the defendant was negligent in failing to mark the trench and that this resulted in the plaintiff's injuries. I accept the plaintiffs argument that it does not matter that the injuries were caused by hot water. What matters is that it was foreseeable that if the trenches were unmarked, someone may have fallen into them and sustained injury." Next, he dealt with contributory negligence alleged against the respondent and found that it was established, saying, after reviewing the difficult situation in which the respondent had found himself that he "did not take all the care he should take. He was a very responsible employee of ACI and should have been more careful". He found the respondent contributed to the accident to the extent of 20%. As to the argument by Baulderstone that ACI had been negligent, the trial judge found to the contrary on the basis that there had been an emergency, the respondent had to deal with it, he knew the area, he momentarily forget there was hot water in the trench, certainly did not step into the trench on purpose but because of Baulderstone's negligence, it was essential in an emergency that 8 UNREPORTED JUDGMENTS ACT's employees go into the area. In short his view was that it was the negligence of Baulderstone, not any negligence of ACI that caused the injuries to the respondent. The trial judge then assessed the damages, about which there is now no dispute. The figure he arrived at was $108,846, which, when reduced by 20% for the contributory negligence resulted in a judgment for the respondent for $87,077. By its Further Amended Notice of Appeal, Baulderstone raised sixteen grounds of appeal. One group of these relied on what were said to be procedural defects in the conduct of the trial. It is because of the appellant's reliance on them that Lhave set out more specific detail of the course of the trial and the material before the trial judge than would otherwise have been expedient. These grounds were as follows: "2. His Honour erred in law in finding that the Respondent had sufficiently pleaded his case in respect to the failure to place pegs on the outline of the trenches. 9. His Honour erred in law in finding that there was evidence to show that the Appellant had not placed pegs at the boundaries of the trench in that the question was not put to the Respondent nor to the Appellant's witnesses Messrs Gardiner and Toovey. 10. His Honour erred in law in relying upon the evidence of Mr Simpson in respect of the use of pegs where the same was not put to the Appellant's witnesses contrary to the rule in Browne v Dunn. 14. His Honour erred in law in allowing the evidence of Mr Simpson to stand when the same was: (a) not contained in his report; (b) not pleaded; (c) not particularised;" The main burden of the submissions put in support of these grounds was that the case had become a "peg" case and that was not a case which Baulderstone should have been required or expected to meet. It was said that such a case was not pleaded or particularised or contained in the expert's report. Nothing about "pegs" had been put to the two workers called in Baulderstone's case. There are two basic answers to this complaint. The first is that it is not an accurate description of what actually happened in the case. The particulars relied on a failure to have any form of barrier "around the trench". The expert's report attributed the cause of the accident to the absence of "a distinct boundary of the trench". (I have already mentioned that although in his report Mr Simpson assumed that a distinct boundary had been requested by the respondent, when it was brought to his attention that this was not the case, he said it did not affect his opinion.) Counsel for the respondent in his opening made it clear that the negligence alleged was that "the trench was not at least barricaded along its edge close to the edge and it was not covered over with planks or plywood" and that "There was no sign up to indicate it". No complaint was made by counsel for Baulderstone that the opening by counsel for the respondent went beyond the pleadings, the particulars, or the expert's report. URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Priestley JA) 9 In the evidence given by the two witnesses called by Baulderstone, there were various references to the practicality of the trenches being covered with planks or plywood. "Pegs" were not mentioned.. The reference to "pegs" was introduced by Mr Simpson in the answer towards the end of his examination in chief set out at p9 above. This was in answer to a question from the respondent's counsel concerning "those barriers you're speaking of". That reference is clearly traceable back through the examination in chief to Mr Simpson's report where he had spoken, amongst other things, of the need for "a distinct visual or tactile barrier" and the erection of "a distinct boundary of the trench". In the answer where he brought in the word "pegs" he was giving an instance of the kind of barrier or boundary which could have been practically provided to mark out the edges and corners of the particular trench in question in the case. This seems to me to have been a quite permissible elaboration or explanation of what had already been quite clearly indicated, although in more general terms, in his report. No objection was taken by counsel for Baulderstone to the introduction of this particular way of explaining his opinion used by Mr Simpson. No application was made for an adjournment to obtain expert or other evidence concerning "pegs" nor was any application made to recall the witnesses called in Balderstone's case, so that they might give evidence about "pegs". The topic of "boundaries" or "barricades" along the edge of the trench had been relevant to the case from the time (at least) of the respondent's counsel's opening statement and I do not think the addition of the "pegs" idea took the case out of the area Baulderstone should have been prepared to meet. Thus, I do not think there is anything in the complaint by counsel for Baulderstone that there was any procedural unfairness or surprise in the way the respondent's case was presented. My second reason for thinking there is nothing in these "procedural unfairness" grounds of appeal already partly appears in the preceding paragraphs. Assuming, against my own opinion, and in favour of Baulderstone, that there had been some element of unfairness along the lines complained of in the appeal, the time to raise the complaint was at the hearing. If the opening by counsel for the respondent had been outside the pleadings or the particulars or the expert report already served, that was the time for counsel to protest. No such point was raised. If the introduction of the "pegs" idea was something for which Baulderstone was not prepared and that lack of preparedness was due to lack of proper particularisation on the respondent's part, then objection should have been taken immediately. There was no such objection. Had there been objection, and had the judge thought it had any merit various courses would have been open to cure the situation of which rejection of the evidence would have been one, but only one; recall of witnesses for further cross-examination would have been another (more likely in the circumstances in my opinion) and reopening of Baulderstone's case yet another. These would have answered any Browne v Dunn complaint also, if justified: see what was said by Mason P in Archer v Richard Crookes Construction Pty Ltd (Court of Appeal, 22 October 1997, unreported, at 7,8). However, as earlier stated, (i) I do not think Baulderstone had any ground for objection and (ii) no objection was made. As to the latter point, put shortly, Baulderstone, without protest joined issue with the respondent on the case he put forward. Once that happened, complaint could only be made about the course of the hearing on appeal, if at all, if some manifest injustice had resulted. I do not see any sign of any such injustice in the present case. 10 UNREPORTED JUDGMENTS Having stated two answers to the "procedural unfairness" grounds, I should add that the first answer is the one which I think is principally operative in the present case. I add this observation to make it clear that I am not critical of counsel for Baulderstone for not having taken objection at the trial to the way in which the respondent's case was presented; on my reading of the appeal papers, such objection would have been misplaced and would have failed. I have set out the second answer to the "procedural unfairness" grounds only because they were, for a time, quite vigorously pressed in the argument in the appeal, and it seemed appropriate to deal with them on both bases. The second group of grounds of appeal on which Baulderstone principally relied consisted of grounds 1, 1A and 1B. These raised the point, in slightly differing ways, that Baulderstone had not been under a duty of care to the respondent at the time of the accident. In light of the factual and expert evidence accepted by the trial judge, the most telling aspects of which I have earlier set out, it is my opinion that this submission must fail. On the materials accepted by the trial judge, he quite adequately covered the point, m my opinion, although without explicit reference to it when he said Baulderstone was negligent in failing to mark the trench, this resulted in the respondent's injuries and it was foreseeable that if the trenches were unmarked someone might fall into them and sustain injury. Grounds 3, 7, 8, 11 and 12 raise points which (although some of them are said to be errors in law) actually involve questions of fact or mixed fact, assessment and discretion (such as the negligence/contributory negligence apportionment). In each of the instances the facts found or the conclusion complained of seem to me to have been fully warranted by the materials before the trial judge. In my opinion these grounds cannot be upheld. Grounds 4, 5 and 6 went to the alleged error of law of the trial judge in not finding the respondent's employer negligent, either solely or concurrently with Baulderstone. In my opinion these grounds must also fail, once the trial judge's finding is held to stand, namely that it was the failure by Baulderstone to mark the edges of the trench that caused the accident. Possibly other conclusions were open to his Honour, but on the material before him it seems to me that that conclusion was justified. It follows, in my opinion, in the circumstances of the present case, that ACI was not relevantly negligent or to put it another way, was not negligently implicated in the injury suffered by the respondent. Ground 13 was that the trial judge erred in law in accepting the evidence of Mr Simpson in that it was not based upon factual evidence before the court. Read literally, this ground in my opinion fails, because there was quite sufficient correlation between the facts in evidence and accepted by the trial judge and those upon which Mr Simpson based his opinion evidence for that opinion evidence to be acceptable. Looking at ground 13 a little more broadly, it seems to me that it is the most important ground in the appeal. If Baulderstone could, in some way, overcome the evidence given by Mr Simpson, then it might have some prospects of success in the appeal. If this court could be persuaded to disregard or set on one side Mr Simpson's evidence, then the appellant could argue that on the factual materials before the court, and looking at them as a matter of common sense, it would not be right to conclude that Baulderstone was a cause of the accident, or the sole cause. I see no need to express an opinion on this argument because I see no basis for this court taking the step of putting Mr Simpson's evidence on one side, or perhaps more strictly, I see no basis for saying that the trial judge should have set URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Powell JA) 11 Mr Simpson's evidence on one side. The evidence was before him, Mr Simpson was qualified as an expert, and in my opinion it was a matter for the trial judge whether he felt persuaded by Mr Simpson's evidence or not. The evidence does not, in my opinion, contain any manifest improbability and I do not think it is for this court, even if it entertained different opinions from those of Mr Simpson, to interfere with the trial judge's acceptance of that evidence. Ground 13 therefore, whether looked at strictly on its own terms or as raising the broader question I have mentioned should not, in my opinion, be upheld. In my opinion all of the appellant's grounds of appeal fail and the appeal should be dismissed with costs. Powell JA I have had the opportunity of reading in draft the Judgment which has been prepared by Priestley JA, with which Judgment Mason P agrees. Even assuming, as I am prepared to do, that, in the circumstances which existed in the ACI factory in early April 1992, the Appellant ("Baulderstone") owed a duty of care to the Respondent ("Mr Don"), I am unable to share their Honours' view that Baulderstone failed to discharge that duty and that it was Baulderstone's failure to discharge that duty which caused the injuries in respect of which Mr Don sought to recover damages in the District Court. On the contrary, it is my view that, in those circumstances, Baulderstone had discharged whatever duty of care it owed to Mr Don and that the injuries which were sustained by Mr Don were not caused by any failure on the part of Baulderstone to discharge that duty of care. In order that I might explain the reasons which lead me to that view, it is, I believe, necessary that I elaborate upon the statement of facts which Priestley J has included in his Judgment. I record, first, that, as ACI's furnace manager at the time, Mr Don was responsible for such members of the ACI workforce who, at the time, had occasion to be in the basement area where Baulderstone's workforce was then working and that, by reason of that fact, he was accustomed to liaise with Baulderstone's supervisory personnel with a view (inter alia) to ensuring that there were taken appropriate steps to provide members of the ACI workforce from the possibility of injury. Mr Don's evidence indicates that, during the course of such liaison, it was agreed between him and Baulderstone's supervisory personnel that there be erected, in the general area where it was later erected, a barricade, of the type which was in fact erected, between the production area and the area where Baulderstone's personnel were digging the trenches and installing the reinforcing steel. That this was so is made clear from the following passages in the evidence given by Mr Don in chief (AB 16-19): "Q. Now as that work of preparing the trenches had progressed do I gather correctly from what you' ve said that ordinary production work was going on at the plant? A. That's correct yes. Q. And did that involve members of the ACI workforce being down in the basement area itself? A. That is correct. On that diagram there's a line marked barricades. Across the bottom on the - towards the bottom of the page is an area where forklift operators were operating and were operating during production. Above that line of barricades well that's the area where the forklift operators weren't operating. So yes there were ACI forklift operators engaged in normal production work towards the bottom of that page. Q. And what did the forklift operators do in the basement level? A. In the area that they were, above them on the floor above them were the machines which make the glass bottles from the molten glass. These machines require a continual 12 UNREPORTED JUDGMENTS amount of maintenance and quite often parts of the machine don't make bottles. The glass flow can't be stopped quickly so any glass that isn't made into a bottle is rejected down a shute, a water cooled shute, into the basement into bins and these forklift operators empty these bins on occasions when they become full by lifting them up, taking them outside, emptying them, and bringing them back and replacing them. Q. Is that a controlled flow of molten glass down into the basement as distinct from the uncontrolled flow that you get if you get a leak? A. Yes it is. Yes it is completely controlled and completely unlike the uncontrolled glass leak. Q. Now as the work which was being done by Baulderstones progressed did you have some contact with the Baulderstone's supervisory people on the job? A. Yes, there was quite a bit of liaison between the two. There were - specifically if areas - if Baulderstones were going to work in areas around the plant they would generally see the production person in charge of that area, and if it was an area I was in charge of, and let me know it was going. In other areas where they were working they had mobile machinery, trucks delivering things, they came to me and let me know what was - generally came to me and let me know what was going on. In the area under the furnace was an area where they were working and normal production people were excluded. It was decided there would be some sort of a barricade between this production area and the area where they were digging the trenches. This was going to be a set of barricades made up of timber barricades supported by a frame or a woven plastic mesh, a heavy plastic mesh that you sometimes see on roadworks. Q. If I could bring you back to the barricades which you spoke of involving plastic mesh and other things, was that something that you took an interest in? A. Yes, very much so. I was concerned that the forklift drivers in the basement who are responsible to myself to make sure - because they had to move their forklifts quite close to where these trenches were being dug and around the trenches there were piles of rubble and building materials sometimes accumulating, I was concerned that the forklift operators who worked in a fairly poorly lit and steamy area with a lot of columns wouldn't come into contact with the building, specifically that they didn't inadvertently drive into one of the trenches. Q..... Roughly what was the distance between the fronts of the trenches and so much of the barrier as was standing along the front line? A. 2 to 3 metres. Q.... Well is this the situation Mr Don that your responsibility was for your workforce below the line of that barrier? A. That's correct. Q. And you were concerned that that barrier be an effective demarcation between what your men were doing and what was going on in the other area? A. That's exactly what it was for." At the time of the accident, Baulderstone's workforce was working "24 hours around the clock", there being two twelve hour shifts. At the relevant time, all the trenches - which were 1-1.2 metres wide and 400 mm deep - had been excavated and the relevant part of Baulderstone's workforce - some six men - were in fact working in the trenches drilling for, and inserting, starter bars - the function of which, so it seems, is partly to ensure that when the new foundations were poured they would knit with the old concrete on each side, and partly to provide points URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Powell JA) 13 to which the reinforcing steel rods - some six metres in length - to be inserted into the trenches before the concrete was poured, could be tied - and the laying and tying of the reinforced steel rods. By the time the leak from the furnace was observed, the work of installing the reinforced steel rods in the trenches to provide the foundations for the new left-hand regenerator had been virtually completed and the work of installing the starter bars and tying the reinforcing steel rods in the trenches to provide the foundations for the new right-hand regenerator had commenced and was in progress. Although the evidence is less than clear, it would seem to be the case that the leak was first observed by a member of Baulderstone's workforce, who notified a member of ACI's staff, who then instructed Baulderstone's workforce to leave the area immediately. At the time when Baulderstone's workforce left the area so a Mr Toovey said (AB 71) the barriers were in place. Although Mr Don seemed to suggest that, by the time he entered the basement area, some part or parts of the barrier was or were down, four things should be noticed, they being, first, that Mr Don was not able to discount the fact that, if the barrier were down, that was the result of action by the fire fighters who were already in the area (AB 41-42); second, that Mr Don consciously crossed the line of the barrier; third, that even if, contrary to what he said was the fact, the barrier had been in place and erected, he would still have crossed the barrier (AB 43,47); and, finally, that he did so in order that he could observe the falling glass and to determine whether or not it was in close proximity to the steel furnace support columns. Although on p2-p3 of the his Judgment, Priestley JA has recorded some of the evidence given by Mr Don as to the state of the basement when he entered it, it is as well to add the following (AB 24): "Q. As you were moving back from having a look at the area where the molten glass was coming down from the leak were you able to see in the conditions the trench and the edges of the trench? A. No. The area itself - obviously there was glass coming out of the furnace and in excess of 1,500 degrees, there was water being played on it. There was a very very large amount of steam coming off that glass that was falling down, the majority of which went straight up. But indeed the basement is only a low roof height, it's only about three metres high, it's not a high roof area and the whole area was very foggy with the fog. Now the water coming along the trench - the trench itself was full of water and overflowing so hence the level of water in the trench and the level of the water around in the whole area for many many metres around would have been probably something like between five and ten centimetres above the normal floor level. It wasn't obvious where the edge of the trench was." Finally, it should be noted that, although it would appear (AB 35-36), both, that there had previously been furnace leaks at the factory, and, that Mr Don had been involved in dealing with them, there is not the slightest evidence to suggest, either, that Baulderstone or any member of its staff had been informed of the possibility of such leaks, or, of such safety procedures as had been established within the factory to be followed in the event that a leak occurred, despite the fact that a leaking furnace is a serious incident and can create highly dangerous situations. The present appeal, so it seems to me, raises for consideration three questions, they being: 14 UNREPORTED JUDGMENTS 1. was there a risk, and, if so, what was it, that people might be injured as the result of the work being carried out by Baulderstone's workforce in the basement; 2. if so, what was reasonably called for in order to protect persons who might otherwise be exposed to that risk from being injured; 3. were the injuries which Mr Don sustained caused by the failure of Baulderstone to take those steps. Although, given the absence of any evidence that Baulderstone was, or that any of its workforce were, made aware of the fact that, from time to time, leaks from the furnace might occur and still less that it was, or they were, informed of any safety procedures to be followed in the event of any such emergency arising, it could not, in my view, reasonably be said that Baulderstone ought reasonably to have foreseen that an emergency such as did occur was likely to occur, it does not follow that Baulderstone did not owe any duty of care to members of ACI workforce or others who might come into the basement area during the course of the work being carried out by Baulderstone. On the contrary, it being apparent that members of ACI's workforce were likely, from time to time, to come into, and to be working in, the general basement area, it ought reasonably to have been foreseen - as indeed it was - that, unless some form of barrier demarking the area within which the operations being carried out by Baulderstone's workforce was erected, there was at least a likelihood that members of ACI's workforce and others might inadvertently move into the area and might inadvertently drive or fall into one or other of the trenches. However, the fact that it was reasonably foreseeable that, unless appropriate action be taken, it was likely that members of ACI's workforce and others coming into the basement area might be injured did not require Baulderstone to take whatever steps were necessary in order to insure against that likelihood becoming an actuality. All that was required of Baulderstone was that it take whatever steps were reasonably called for to meet the risk. In the present case, what was determined upon - the passage from Mr Don's evidence in chief which I have earlier set out would indicate that Mr Don was involved in the determination - was that there should be set up a barricade made up of timber barricades supported by a frame, or a woven plastic mesh of the type that is commonly seen these days, that barricade being set up at a distance of two to three metres beyond the external boundaries of the trenches. The existence of such a barricade, so it seems to me, was all that was reasonably required in order to prevent persons inadvertently straying into the area where the work was being carried out and inadvertently driving into, or falling into, one or other of the trenches while work was being carried on. The fact that Mr Simpson, who claimed to be an expert, may have said that more was called for and that it was common practice in some way to peg the parameters of open trenches, in my view, does not dictate the contrary for, if the barrier were in place and were observed by those in the area, they would not inadvertently stray into the area and thus run the risk of injury. In these circumstances, it is my view that, even accepting that Baulderstone owed a duty of care to others such as Mr Don, it had taken whatever steps were reasonably required of it to protect such persons against the risk and thus were not guilty of negligence. Further, the passages from Mr Don's evidence to which I have referred, make it clear that, being aware both of the existence of the trenches and of the purpose which the barrier was intended to fulfil, and being only too well aware of the fact that, in the conditions which then obtained, it was not possible to see where the boundaries of the trenches were, Mr Don consciously crossed the line of the URJ BAULDERSTONE HORNIBROOK PTY LTD v DON (Powell JA) 15 barrier and would have done so even if, as others such as Mr Toovey asserted, but he denied, the barrier had been in place and erected. Mr Don having thus consciously placed himself in a situation which he could not have but realised was a highly dangerous one, it seems to me that it must follow that the injuries which he sustained were caused, not by any failure on the part of Baulderstone to take appropriate steps to protect him from injury, but by the actions which he consciously took. For these reasons I am of the opinion that the Appeal should be upheld, the verdict and Judgment in the District Court set aside, and that Mr Don be ordered to pay Baulderstone's costs of the trial and the appeal but, if qualified, to have a Certificate under the provisions of the Suitors Fund Act 1951. Appeal dismissed with costs. Counsel for the appellant: D Nock SC Solicitors for the appellant: Hunt & Hunt Counsel for the respondent: L King SC/P W Gwozdecky Solicitors for the respondent: Glover & Glover