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." The following is also relevant: "Q. If a fire is smouldering you'd be better off leaving it alone than putting the mix on it? A. Yes. Q. That's because in your view it's very dangerous putting the mix on it? A. Yes. Q. You nevertheless used to throw a mix on the smouldering fire from time to time? A. Only when – you should I put this – you don't do it when you know it's burning. It's only when you don't think it's burning. Q. That's because you know it's very dangerous. A. Yes. Q. … to throw this mix on it? A Yes." 14 It is apparent from this evidence that, contrary to his Honour's finding, Mr Vearing did at times throw fuel on smouldering wood, but only when he did not realise or appreciate that the fires were still alive. If he saw smoke coming from the wood he would not throw fuel on the wood. 15 Mr Hennessy SC, who together with Miss Kumar appeared for the appellant, submitted that Sorby DCJ's error in stating that Mr Vearing had not thrown fuel onto smouldering logs led to his Honour erroneously finding that the action of the appellant in throwing the fuel on the smoking logs was not part of a system of work determined by the respondent. 16 I do not accept this submission. The fact that Mr Vearing did at times, in the mistaken belief that logs were not burning, throw fuel on to them does not establish that the respondent had adopted a system of work whereby his farm workers, including the appellant, were required or instructed to throw fuel on to smouldering wood. 17 The system of work found by Sorby DCJ (namely, that involving the pouring of fuel onto a stack of wood and throwing a burning match onto the fuel) did not require the appellant to throw fuel onto a stack when the stack was already ignited or where smoke was coming out of it. 18 In my view, the error his Honour made in finding that Mr Vearing never threw fuel on to smouldering wood does not vitiate his finding that the system of work went no further than, in general terms, pouring fuel onto the stacks and then lighting the fuel with a match. 19 The question then is whether his Honour's error makes any material difference to the apportionment he arrived at. 20 It is common knowledge that it is extremely dangerous to throw petrol onto combustible material that has been lit and is still burning, albeit only giving forth smoke. 21 Not only is this common knowledge, but it is something that the appellant well knew. He said that he knew that if the wood was still burning the flames from the fire could run up the thrown fuel and could cause him to catch alight. He admitted that throwing the fuel on the smouldering fire was dangerous and he knew that it could "come back" at him. He knew that the wood was burning and smoke was coming from it. In the circumstances, the appellant's conduct was negligent. 22 In Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 310 Mason, Wilson, and Dawson JJ said: "A worker will be guilty of contributory negligence if he ought reasonably have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury." 23 The appellant's conduct fell entirely within this dictum. The circumstances in which the appellant was required to work had no bearing on his decision to throw the fuel on the burning stack. 24 This is not a case where the participation of the employee in the work practice he was required to follow was in itself the alleged contributory negligence. Here the contributory negligence of the appellant fell outside the system of work he was instructed to adopt. It was his decision to throw the fuel on the stack of burning wood when he knew it was dangerous, when his employer had given him no instructions to proceed in such a way, and where his conduct was the product of his decision alone. 25 It is also to be borne in mind that there was no time pressure on the appellant to complete the work within a particular period. It was perfectly permissible to wait until the fire went out before attempting to ignite the stack again. This was the practice Mr Vearing himself followed. In an exchange in the course of his cross-examination the following was said: "Q. Is the end result this, that if in fact the fire is smouldering you'd leave it alone? A. Yes. Q. And, what, just let it go out? A. Yes, and start again. Q. And then start again? A. Yes. Q. But having said that, that's not what you used to do? A. Yes, it is." 26 The most that could be said about the fact that Mr Vearing, in the past and in the presence of the appellant, had thrown fuel on smouldering wood is that the appellant drew some encouragement from this and thought that it was in order to do the same. 27 I would, however, say the following about this proposition. 28 Firstly, Mr Vearing would only throw fuel onto a stack in this way if he were under the impression that the fire was out. In those circumstances, no smoke would be readily observable. This is to be contrasted with the fact that, on the day in question, the appellant observed smoke before throwing the fuel on the stack. 29 Secondly, nothing in what Mr Vearing did would have suggested to the appellant that the practice was less dangerous. The appellant, as I have stated, conceded that he was aware of the very danger that in fact materialised. 30 Thirdly, the appellant never suggested that this conduct on the part of Mr Vearing had any influence on him. He did not say that he was encouraged or in any way affected by it. 31 The fact is that the appellant simply took a chance in full appreciation of the risks. He was under no pressure to do so and the choice was entirely his. His action was not one performed within a prescribed system of work. Commonsense and his own knowledge should have prevented him from acting as he did. 32 In these circumstances, in my view, the apportionment determined by Sorby DCJ was within discretion. 33 I would dismiss the appeal with costs. 34 HODGSON JA: In my opinion the appeal should be allowed to the extent of substituting a 25% reduction of damages for contributory negligence for the 45% accepted by the primary judge. 35 The respondent's case was that the appellant was given instructions as to the burning of timber on behalf of the respondent by the fellow employee, Mr Vearing. The primary judge accepted this, and it is not challenged by either party. 36 The appellant's evidence was that he saw Mr Vearing throw fuel on to timber that was smouldering. Mr Vearing in substance admitted this had happened, but only by mistake when he saw no smoke and believed the fire was out. The appellant was not cross-examined to suggest that he appreciated it was only by mistake that Mr Vearing threw fuel on to the timber that was smouldering. It was common ground that Mr Vearing did not instruct the appellant not to do what he himself had done, albeit only by mistake. 37 In those circumstances, in my opinion there was a mistake of fact by the primary judge where he said words to the effect that Mr Vearing's evidence was he had probably thrown fuel on to a pile of wood he had previously lit, but after it was out. 38 I agree with Ipp J that this does not impact on the primary judge's declining to find that the action of the appellant in throwing fuel on to smoking logs was part of a system of work determined by the respondent, and I agree that it does not vitiate the finding of contributory negligence. The appellant knew that what he was doing was dangerous and could simply have left smouldering logs alone. 39 However, I do think it impacts on the primary judge's finding as to the proportion of responsibility. I think it is an error that bears on that issue in such a way as to make it appropriate for the appellate court to reconsider the matter. I think it also rationally bears on the proportion of responsibility that should be attributed to the appellant. I think that proportion should be determined having regard to the very heavy duty on an employer to have a safe system of work. I think it is significant that the person entrusted by the employer to instruct the appellant had done the same kind of dangerous thing himself, albeit by mistake and apparently when no smoke was apparent, but without warning the appellant that this sort of thing was not to be done. 40 In all the circumstances I think an appropriate deduction would be 25%. 41 PALMER JA: I am of the opinion that the appeal should be dismissed with costs for the reasons given by Ipp JA. 42 HODGSON JA: So the order of the court is that appeal dismissed with costs. ********** Last Modified: 12/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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