New South Wales Court of Appeal CITATION : Schofield v. Davkom Pty. Ltd. (t/as John Phillips Plumbing) [2003] NSWCA 358 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003 JUDGMENT OF : Handley JA at 1, 29, 31; Hodgson JA at 2; McColl JA at 30 DECISION : Appeal dismissed with costs. CATCHWORDS : TORTS - NEGLIGENCE - Verdict for defendant employer - Whether appealable error shown. PARTIES : Gregory David Schofield - appellant Davkom Pty. Limited (trading as John Phillips Plumbing) - respondent FILE NUMBER(S) : CA 40256/03 COUNSEL : Mr. J.D. Hislop QC with Mr. T. McKenzie for appellant Mr. G.R. Graham for respondent SOLICITORS : Enrights Solicitors, Maitland for appellant Sparke Helmore, Newcastle for respondent LOWER COURT District Court JURISDICTION : LOWER COURT 165/01 FILE NUMBER(S) : LOWER COURT Colin O'Connor DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40256/03 DC 165/01 HANDLEY JA HODGSON JA McCOLL JA Thursday 27 November 2003 SCHOFIELD V. DAVKOM PTY. LTD. t/as JOHN PHILLIPS PLUMBING Judgment 1 HANDLEY JA: The Court will refuse the late application for an adjournment to put on fresh or additional evidence and I will ask Hodgson JA to give the first judgment. 2 HODGSON JA: On 16 December 2002, in proceedings brought by the appellant against the respondent for damages for personal injury, O'Connor DCJ entered judgment for the respondent. The appellant appeals to this Court from that decision. 3 The respondent operated a plumbing business in East Maitland and the appellant was employed as a plumber in that business. The appellant's claim was that he sustained a back injury on or about 20 October 2000 in the course of his employment whilst lifting a drain cleaning machine known as an eel from the back of a truck. The agreed weight of this machine was 61.3 kilograms. 4 In evidence before the primary judge, the appellant accepted that there was a normal method for unloading the machine from a truck, and the primary judge found that this method was comparatively easy, not involving any undue effort and not requiring the assistance of a further employee. However, the appellant sought to make out a case that this method was not used on the occasion of his injury because the topography at the customer's property to which he had been sent was such as to prevent this method being used. His claim against the respondent was to the effect that he had been placed in circumstances where he was required to unload the machine alone, and without being provided with a safe means of doing so. 5 The appellant's evidence was that on 20 October 2000 he went to a job in East Maitland where the injury occurred, and that the topography there was such that he could not use the usual method because of "the descent and grade of the actual land itself". The appellant said he later went with an expert, who gave evidence for him at the trial, to the site in question in George Street, East Maitland, this being identified in the expert's report and otherwise at the trial as 5 George Street; and the expert's evidence was based on the assumption that the injury occurred at this site. 6 However, there was before the primary judge the following evidence which the primary judge accepted. 7 First, there were records of the respondent showing that the only work done around the time of the injury at 5 George Street was on 6 October 2000 and did not involve the use of an eel. 8 Second, there were records of the defendant showing that on 20 October 2000 the only job done by the appellant requiring the use of an eel was at an address 7 Tabor Street, Rutherford, and there was evidence that the ground at this area was level. 9 Next, the workers compensation claim form completed by the appellant was not completed by him until 13 November 2000. This form reported an injury occurring on 20 October 2000 on a site in East Maitland, and described the injury occurring as follows, "lifting eel and turned, felt a pop in top of back leg (bottom)." 10 Next, there was evidence from the persons to one of whom the appellant claimed to have reported his injury on the day it occurred. One of these persons said she recalled a conversation in which the appellant said he had injured his leg and that he did not know how he did it; and this witness also said that it was not until two or three weeks later that the appellant claimed to have injured his back lifting the eel. The other person gave evidence that she was not at work between 18 and 25 October, and could not remember the appellant telling her about the injury. However, it was this employee who completed the employer's report of the accident on 15 November 2000 which repeated the information which the appellant had put in his workers compensation claim on 13 November. 11 Next, the respondent's register of injuries did not refer to the injury to the appellant prior to an entry made on about 13 October 2000. 12 As I have said, the primary judge accepted all that evidence, and there is no challenge on appeal to the primary judge's acceptance of that evidence and no basis suggested for any such challenge. 13 The primary judge was not satisfied that the injury occurred at 5 George Street. He found that if the injury occurred at the Rutherford address, the topography had nothing to do with the accident; and he also found that no other particular location had been suggested where the accident may have occurred. He considered a submission to the effect that he should accept that the appellant was injured at work at some other address; but he said there was no evidence of the topography of any unidentified area where the accident may have occurred, and he was not satisfied that the injury occurred in circumstances involving a breach of the respondent's duty of care. 14 He also considered a submission that there was an admission or estoppel by acceptance of the workers compensation claim and payment of workers compensation benefits, but considered that this did not advance the case for common law negligence. 15 The appellant relies on the following grounds of appeal: 1. His Honour erred in finding that the Defendant did not breach its duty of care to the Plaintiff. 2. His Honour failed to make a finding as to whether the Plaintiff could have adopted an alternative method of lifting to the method he employed. 3. His Honour failed to apply the principle of estoppel by conduct to the Defendant's Defence. 4. His Honour failed to find the Defendant was bound by an admission as to the place and time of injury. 5. His Honour was in error in admitting business records of the Defendant where the records were contrary to the admissions made by the Defendant. 16 The appellant provided the following written submissions in support of those grounds: Contentions on "System of Work": 4. It was simply not put to the Plaintiff that he was not telling the truth about the accident as to its mechanics. What was put to the Plaintiff was a different matter - that he was not at a specific address, and that he could have used a different method of lifting if the ground was not sloping away. But the Defendant did not challenge the Plaintiff's evidence that he did not put the legs of the machine down to pivot the machine, because the legs would not reach the ground. 5. In the circumstances of the case, the address was not relevant. What was vital was the system the Plaintiff was forced to employ. He had to lift the machine off the side of the truck, wherever he was on the day, because his case was that he couldn't put the legs down. The documentary evidence was tendered to attempt to show the Plaintiff was not at a particular address. It did not establish that his oral evidence as to how he had to lift was wrong. 6. By focusing on the address rather than the system of work, or the lack of safe system, his Honour fell into error. This was particularly so where the Defendant did not contest injury in the course of employment. 7. The evidence as to what the Plaintiff was doing at the time was simply uncontested. He was unchallenged that he was lifting a 61.3kg machine. If it was necessary at all, the expert evidence would be equally valid if the address was wrong but the site was familiar in its features. 8. Further, it is submitted that if the Defendant had a safe system of work it clearly failed to enforce its observance. No evidence was called by the Defendant as to what the Plaintiff was directed to do if he could not safely move the machine by himself. 9. The Plaintiff's evidence was that he was told to lift it on his own. Contentions on "Estoppel by Conduct and Admissions": 10. It was never an issue prior to the trial as to the Plaintiff's actual location at the time of the accident. The matter may have been relevant to the acceptance of the claim, but there was no issue raised and compensation was paid for more than two years. The claim was in respect of an accident "on site at East Maitland" (Ex 8). The Defendant did not contest the address on the claim form or the validity of the claim (T:82.5). 11. The Plaintiff was requested to prove a fact at trial which had never been in issue after the injury. Two years after the event, the Plaintiff could not prove events which could have been properly investigated at the time. What was lost could hardly be shown. The Plaintiff was irremediably prejudiced. 12. The Plaintiff alleges that the Defendant could not be allowed to depart from the assumption upon which the Plaintiff proceeded. Principles of estoppel by conduct and pre-trial admissions as to the Plaintiffs place of injury (Exhibit F) would inform the Court's approval of such a course. Business records relating to the Plaintiff's location at the time of the accident were admitted over objection (T:60.10). 17 At the hearing, Mr Hislop QC, for the appellant, submitted that the evidence of the respondent's records before the primary judge indicated a number of other sites where the injury could have occurred on or about 20 October at East Maitland, in connection with the use of an eel. He pointed, in particular, to one site referred to in the record of a job on 16 October, and two sites recorded as the sites of jobs occurring on 19 October. Mr. Hislop submitted that the primary judge made an error when he said in para.[54] of his judgment that there was "no evidence of the topography of any unidentified area where the accident may have occurred", a statement that was in substance repeated in para.[59] of the judgment. Mr Hislop submitted that, in circumstances where the appellant gave evidence that he was caused to adopt other than the normal method for unloading the eel because of the sloping ground where this occurred, this amounted to evidence of topography at an unidentified site, in circumstances where the primary judge found that the incident did not occur at either 5 George Street or the Rutherford address. 18 Mr Hislop also submitted that the trial was vitiated by reason that the appellant was taken by surprise in that the proposition that the appellant was injured by reason of lifting an eel at a site in East Maitland on or about 20 October had not been put into question before the commencement of the trial. He submitted that had this been done, then the appellant's advisers could have investigated these alternative possible sites and led evidence of them. 19 At the close of submissions in reply, Mr Hislop sought an adjournment to enable evidence to be put on as to the topography on these other possible sites. 20 Mr Hislop's other submission was that the primary judge was in error in rejecting a submission that the appellant ought to have been instructed not to lift the eel under any circumstances. 21 One matter in the written submissions, that was repeated in Mr Hislop's oral submissions, was to the effect that it was never put to the appellant in cross-examination that the accident did not occur as he described it. In my opinion the substance of the respondent's challenge to the appellant's case before the primary judge was to the effect that the accident did not occur as the appellant described it, because it did not occur where the appellant said it happened; because if it occurred when the appellant said it happened, it occurred at a site where the land was level and the safe method of loading could have been used; because immediately after the injury occurred the appellant said he did not know how it occurred; and because it was only two to three weeks later that he first claimed it was caused by lifting the eel. 22 In those circumstances, it seems to me that a direct question in cross-examination putting to the appellant that he was not telling the truth as to how the injury occurred was not essential. In circumstances where those matters relied on by the respondent were accepted by the primary judge it was, in my opinion, open to the primary judge not to be satisfied that the injury occurred in circumstances that it was due to the negligence of the respondent. 23 As regards Mr Hislop's submission that the primary judge was in error in saying there was no evidence of the topography, it seems to me that that has to be assessed in the light of the way the case was conducted, and in the light of the whole of the judgment of the primary judge. 24 It was squarely put in cross-examination to the appellant that he did not go to 5 George Street on 20 October and that was strongly denied by the appellant. The primary judge recorded a submission to the effect that he could find that the appellant was injured at some other site as a consequence of lifting the eel when it was difficult for the reasons already mentioned to move it off the rear of the truck, those reasons being the sloping of the land. Plainly, therefore, the primary judge had it in mind that it was being put that the injury occurred at some other site and that the land sloped at that site and the basis for that submission, plainly, was the appellant's evidence that the land sloped at the site where the eel was unloaded. 25 In those circumstances, it seems to me that when the primary judge said that there was no evidence of the topography of any unidentified area where the accident may have occurred, he was intending to say that there was no evidence directed to the topography of any particular site, such as there was in the case of 5 George Street and indeed the site at Rutherford. In my opinion, when one reads the whole of the judgment, it cannot be said that the primary judge failed to appreciate that the evidence of the appellant could be taken as some evidence concerning the topography of an unidentified site. In my opinion, the statement of the primary judge does not indicate an error that vitiates the conclusion which was otherwise plainly open to him. 26 Turning to the question of surprise, in my opinion the material pointed to by Mr Hislop is insufficient to make out a case of surprise; and particularly in the absence of evidence indicating the extent to which the appellant could have been assisted by further inquiries, such as evidence concerning the topography of other sites, in my opinion a case for intervention on that ground is not made out. In my opinion, in circumstances where no appeal ground concerning surprise was included, it is too late now to grant an adjournment to enable that matter to be further investigated. 27 Finally, in relation to the submission that the primary judge was in error rejecting the submission that the plaintiff ought to have been instructed not to lift the eel under any circumstances, in my opinion that submission was adequately dealt with by the primary judge in paras.[47]-[49] of the judgment, and in my opinion no error is shown in the way that he dealt with it. 28 For those reasons, in my opinion, the appeal should be dismissed with costs. 29 HANDLEY JA: I agree. 30 McCOLL JA: I also agree. 31 HANDLEY JA: The orders of the Court will be as announced by Hodgson JA. ********** Last Modified: 12/05/2003 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.