Cuthbert v Thomson [2003] NSWCA 377

New South Wales Court of Appeal

CITATION : Cuthbert v Thomson [2003] NSWCA 377 HEARING DATE(S) : 11/12/03 JUDGMENT DATE : 11 December 2003

JUDGMENT OF : Hodgson JA at 34; Ipp JA at 1; Palmer J at 41 DECISION : Appeal dismissed with costs.

CATCHWORDS : CONTRIBUTORY NEGLIGENCE - Personal injury suffered by farm worker when igniting stack of wood - Breach of duty of care by unsafe system of work - Whether finding of contributory negligence can be sustained - Employee's method of igniting stack of wood was knowingly dangerous - Whether employee's actions were part of a prescribed system of work - Apportionment of damages. ND CASES CITED : Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 PARTIES : Kenneth Stanley Cuthbert (Appellant) Ben Thomson (Respondent) FILE NUMBER(S) : CA 40021/03 COUNSEL : Mr P R Hennessy SC/Ms M Kumar (Appellant) Mr I D Roberts SC (Respondent) SOLICITORS : Farrell Lusher (Appellant) Moray & Agnew (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 88/01 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40021/03 DC 88/01

HODGSON JA IPP JA PALMER JA

Thursday 11 December 2003 KENNETH STANLEY CUTHBERT v BEN THOMSON Judgment 1 IPP JA: On 20 June 1998, the appellant, then aged 47 years, was severely burned when he was burning off stacks of logs and stumps on the respondent's property. 2 The appellant was employed by the respondent as a farm hand. He had, in substance, been so employed since the age of 12 years. His main work consisted of fence work, drenching, roustabouting and wool rolling, and for a few years before the accident he had done burning off work on the property. He could not read or write but was plainly a person experienced in many forms of farm work. 3 The trial judge, Sorby DCJ, found that the rural industry practice applicable to the burning of stacks of logs was to pour a fuel mixture in a small area at the base of a stack. The fuel would then be set alight by throwing a burning match at it. The respondent, his Honour found, had directed the appellant to follow this procedure, and indeed he had always followed it. 4 Sorby DCJ found that the practice was inherently dangerous. 5 The danger to which the appellant was thereby exposed materialised on 20 June 1998. The appellant had lit more than one stack of logs using this method. He said that he noticed that one of the stacks "was nearly out, a little bit of smoke coming off from it". The appellant took a small can of fuel and, using an underarm motion, threw it on to the stack near the smoke. The fuel ignited, the flames ran up the stream of fuel that had been thrown and set fire to the can and to the appellant's clothes. He suffered severe burn injuries. 6 There was evidence that there was available a safe and known alternative method of lighting the fire that was also relatively cheap. This was the use of a drip torch. Sorby DCJ found that the respondent had breached his duty of care to provide a safe system of work to the appellant by failing to provide the appellant with a drip torch for the purposes of igniting the wooden stacks. His Honour found therefore that the respondent had been negligent. 7 Sorby DCJ also found that the appellant had been guilty of contributory negligence in pouring the fuel on the smoking stack. He determined that the extent of the contributory negligence was 45 per cent. He assessed damages, which he apportioned on this basis. 8 The principal ground of appeal is that his Honour erred in finding that the action of the appellant in throwing fuel in the smoking logs was not part of the system of work imposed by the respondent. 9 The case of the respondent at trial appears to have been conducted on the basis that Mr Vearing, a co-worker of the appellant, gave instructions to the appellant, on the respondent's behalf, as to how to light a fire for burning wood stacks. 10 Mr Vearing was a permanent employee of the respondent and the appellant was a permanent casual employee. The age difference between the two was not marked, but Sorby DCJ found that Mr Vearing had apparently more responsibility than the appellant. 11 The appellant agreed that he had done a lot of burning off of stumps and sticks for at least two seasons before the winter in which he sustained his injury. He agreed that this was something that he would do "very regularly". He agreed that Mr Vearing would "often" do this work with him; the inference being that at times he would do it on his own. 12 Mr Vearing could not remember having given any particular instructions or advice to the appellant as to how to burn off the wood stacks. Some evidence was, however, given as to the practice that Mr Vearing in fact adopted while in the company of the appellant. Sorby J said in this regard: "He [Mr Vearing] said he had not nor would he throw the fuel onto a pile of logs 'if it was smouldering.'" 13 This statement by his Honour was not entirely accurate. The following exchange occurred in the course of the cross-examination of Mr Vearing: "Q. Had you yourself ever thrown a mixture on to a smouldering fire? A. Probably, because sometimes you think the fire is out. Q. What do you mean "probably"? A. Well, I suppose I have, yes."