New South Wales Court of Appeal CITATION : Rondo v Brown [2002] NSWCA 401 FILE NUMBER(S) : CA 40136/02 HEARING DATE(S) : 6 December 2002 JUDGMENT DATE : 6 December 2002 Rondo Building Services Pty Ltd PARTIES : v David Paul Brown and Steve Watt Constructions Pty Ltd JUDGMENT OF : Meagher JA at 1; Handley JA at 2; Giles JA at 33 LOWER COURT JURISDICTION : District Court LOWER COURT DC 594/00 FILE NUMBER(S) : LOWER COURT Hogan ADCJ JUDICIAL OFFICER : Appellant: J D Hislop QC/P Bland COUNSEL : Respondent 1: B M J Toomey QC/T F McKenzie Respondent 2: G P McNally Appellant: Pricewaterhouse Coopers Legal SOLICITORS : Respondent 1: McClellands Respondent 2: Colin Biggers & Paisley CATCHWORDS : NEGLIGENCE - safe system of work - fact finding - no question of principle - APPEAL - written submissions - content where fact finding challenged Abalos v Australian Postal Commission (1990) 171 CLR 167 CASES CITED: Ahmedi v Ahmedi (1991) 23 NSWLR 288 Warren v Coombs (1979) 142 CLR 531 DECISION : Appeal dismissed with costs - orders made IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40136/02 DC 594/00 MEAGHER JA HANDLEY JA GILES JA 6 December 2002 RONDO BUILDING SERVICES PTY LIMITED v DAVID BROWN & ANOR Judgment 1 MEAGHER JA: I will ask Handley JA to deliver the first judgment. 2 HANDLEY JA: This is an appeal by the plaintiff's employer from a decision of Hogan ADCJ in which he found a verdict for the plaintiff against his employer, rejected a defence of contributory negligence and declined to find that the head contractor had been guilty of negligence. His Honour assessed damages and, after deducting payments under the Workers Compensation Act for the benefit of the plaintiff, he entered judgment in his favour for $216,264.85. The employer has challenged the Judge's findings that the head contractor was not liable, that there was no contributory negligence and the award of damages. 3 The plaintiff was employed to carry out welding operations on a building site at Manly under the general control of the head contractor. He had worked there for some time but shortly before the accident his employer required him to cease using a light welding machine and commence using a heavy one. This weighed some 60 kilos and was about 1 metre wide and 1 metre high. 4 Work at the site was carried on on more than one level and the plaintiff had to manhandle this heavy welding machine up and down flights of stairs. He sought and was refused the help of an offsider for this purpose and he was not provided with any mechanical aids, in the nature of a trolley or the like, which would have assisted him in moving this machine between different levels. 5 He was descending the stairs on 2 September 1997, going down backwards carrying this heavy welding machine, when he lost his balance and fell a number of steps, suffering various injuries. 6 He sued his employer for failure to provide a safe system of work and Mr Hislop QC, who appeared for the employer on the appeal but did not appear at the trial, has conceded that there was a breach of duty by the employer. This concession was properly made because a finding to that effect was inevitable. 7 The plaintiff said that he tripped on an electric cord when he caught it with his right heel as he was going down the stairs and this caused him to lose his balance and fall. The head contractor was sued on the basis that an extension lead, which undoubtedly crossed the stairs at some point in the general vicinity of where the plaintiff lost his balance, was the obstacle on which he came to grief. The alternative candidate was the lead from the welding machine. 8 When the plaintiff commenced his descent, the 3 metre long lead for the machine was wound around a hook on the machine. It seems that this was on the right-hand side of the machine. The plaintiff's evidence as to the location of the hook was not clear and the Court was not favoured with either a photograph or a diagram of the machine, and there was no evidence as to its depth. 9 The plaintiff said that he had one arm under the machine and one arm on top of it as he was descending. His evidence about the extent to which the lead on the machine unravelled as he descended is not clear. 10 Mr Hislop's principal point was that the lead did not unravel to the stage where it was long enough to get under the plaintiff's heel and bring him to grief, and the extension lead placed across the stairs by the head contractor must have been the cause of his fall. 11 The trial Judge carefully examined the evidence which included the history given by the plaintiff to a number of treating doctors that he had tripped on the lead from the welding machine. The references are usefully collected in the written submissions for the head contractor prepared by Mr McNally. 12 There was evidence both ways on this issue but a substantial body of evidence supported the trial Judge's finding which depended in part on his assessment of the plaintiff. In these circumstances I am not able to conclude that the trial Judge fell into error in finding that the loose lead from the welding machine was the cause of the fall. I would, therefore, propose that the appeal on liability be dismissed. 13 Mr Hislop also challenged the Judge's refusal to find contributory negligence. His submission was that once the plaintiff became aware, as he was descending the stairs, that the lead had unravelled and that 2 feet was hanging free, he should, in the interests of his own safety, have stopped, put the machine down and wound the lead around the hook again before resuming his descent. 14 It seems evident that the plaintiff was only six or seven steps from the bottom when he fell. He had become aware of the lead unravelling but he was in a situation that he should never have been placed in by his employer. His decision at that point (even if it was a conscious one) to keep going now he was so close to the bottom, was not the sort of act or omission by a worker involved in an unsafe system of work which the Court should categorise as contributory negligence. The situation was fundamentally unsafe, and the plaintiff was no doubt preoccupied, distracted by this heavy machine. 15 The Court was not told its exact dimensions, there is no evidence of its depth, and it was an awkward load. The plaintiff obviously would be concentrating on managing this machine without losing his balance. If his attention was not focused at all times on the length of the unravelling cord, he can hardly be blamed for that in the awkward situation in which he was confronted. I would, therefore, reject the submission that he was guilty of contributory negligence. 16 The employer presented the Court with video evidence of the plaintiff engaging in a form of recreation described as a demolition derby. He was videoed for some time on an occasion in December 2000, about ten months before trial, over about 30 minutes during a substantial part of which he was driving a motor vehicle at modest speeds with the intention of inflicting as much damage on the other motor vehicles participating in this sport and avoiding if possible action from his competitors designed to damage his vehicle and make it undrivable. As a result of his own efforts, and those of his competitors, the plaintiff was subjected to repeated shocks which make the description 'whiplash' an understatement. 17 A comparison of the plaintiff's evidence-in-chief and his history and presentation to doctors, particularly those qualified by the defendants, with his activities shown on the video, established that the plaintiff had been guilty of misrepresentations and non-disclosures to doctors and to the Court before the video was shown. These matters were dealt with by the Judge in his reasons and Mr Hislop fairly acknowledged that the Judge's description of the video was accurate. He offered no criticism of the Judge's findings based on the video evidence. We were shown the video and our attention was drawn to the particular aspects which Mr Hislop and his junior wished to emphasise. Notwithstanding the video evidence and the plaintiff's reaction to it the Judge found that he had been significantly injured in the accident and this finding underpinned his award of damages. 18 Mr Hislop invited this Court to form its own view from the video and on that basis to interfere with the Judge's award. The video was shown to two of the medical witnesses qualified for the plaintiff who gave oral evidence, Dr Matthews, his general practitioner, and Dr Bleasel, an expert neurosurgeon. Both said that the video demonstrated that the plaintiff had been exaggerating his complaints and his incapacities but both still maintained that he had been significantly injured as a result of the accident. 19 The Judge accepted the evidence of both doctors after they had seen the video and been cross-examined and re-examined in the light of what they had seen. Mr Hislop invited us to substitute other findings but in my judgment this Court cannot properly take that course in the light of the evidence. The trial Judge did not mistake the video evidence and his findings as to that evidence were properly based on the video. Having seen Dr Matthews and Dr Bleasel in the witness box he accepted their evidence. The employer did not call any doctor, who had examined the plaintiff and seen the video, to give oral evidence, so that the relevant evidence of Dr Matthews and Dr Bleasel is uncontradicted. The Judge's findings, based on his assessment of the two medical witnesses, are within the principles applied in Abalos v Australian Postal Commission (1990) 171 CLR 167. As long ago as Ahmedi v Ahmedi (1991) 23 NSWLR 288, 299, this Court held that the Abalos principle also applies to expert witnesses. There is simply no basis on which this Court can interfere. 20 There remain for consideration two questions, namely whether there was adequate evidence that the disabilities that Dr Bleasel and Dr Matthews said, and the Judge found, were genuine despite the video, were caused by the accident and the quantum of the award for non-economic loss. 21 Mr Hislop submitted that there was no evidence that the plaintiff's disabilities, which Dr Bleasel identified in re-examination, were caused by the accident. However Mr Toomey QC was able to demonstrate conclusively that there was ample evidence from Dr Bleasel on the question of causation, and I need only refer to his evidence in the black book at pp 169, 178 and 180. This was based on a comparison of a CT scan of the plaintiff's neck taken on 7 March 1995 with an MRI of his neck taken on 17 February 1998. This demonstrated that significant changes for the worse had occurred at three levels in the plaintiff's neck and Dr Bleasel in his report at blue 120 said that a much more serious situation was disclosed in the 1998 MRI report. The Judge's findings on causation were amply supported by evidence and this Court is not entitled to interfere. 22 The Judge awarded the plaintiff 25 per cent of a most extreme case for non-economic loss. Given the video evidence and the Judge's findings on that evidence it must be acknowledged that this award was, at the very least, at the top end of the range fairly available to the Judge on the evidence. The question is whether it was outside that range. 23 The plaintiff suffered injuries to his neck, back, right knee and arms and had residual disabilities in each area, although the Judge emphasised the disabilities in the right knee and the neck. The video showed the plaintiff limping, no doubt as a result of his knee injury. The Judge found, on the basis of Dr Bleasel's evidence, that the pathology in the plaintiff's neck, due to degenerative changes which pre-dated the injury but were aggravated by it, did not prevent the plaintiff leading a more or less normal life at the time of the trial but that he should not undertake the heavy work that he was engaged in before the accident. On this basis, of course, it was said that an award of 25 per cent was excessive. This overlooks the knee injury and the risk of increased pathology in the plaintiff's neck to which Dr Bleasel drew attention more than once. 24 The plaintiff was born in 1961 and was just over thirty-six years of age at the date of accident. The injury did not affect his life expectancy. The award has to compensate for his condition and the risk of deterioration in his neck over a long period of time. The Court may be taken to know that any significant deterioration in the plaintiff's spinal column in his neck will affect every part of his body. There were also estimates from more than one doctor of the loss of efficient use of his lower and upper limbs and back as a result of this injury. 25 In all the circumstances I have not been persuaded that the award is outside the available range, although as I have said it is certainly at the high end of that range. 26 There were some submissions directed to the plaintiff's economic loss but these lacked substance. The risk that the normal progression of the degenerative changes would have affected the plaintiff in the future, regardless of this particular accident, was dealt with by the Judge who increased the allowance for vicissitudes to 24 per cent. 27 In these circumstances, all the appellant's grounds of appeal fail and I would propose that the appeal be dismissed with costs. 28 Before parting with the case, however, I would like to say something about the appellant's written submissions. SCR Pt 51 r 46A subr (2) provides: "In appeals raising substantial challenges to findings of fact, the submissions of the party making those challenges shall include a statement in narrative form setting out the findings challenged, those contended for, the reasons why the Court of Appeal should substitute those findings and supporting references to the transcript and other evidence". 29 That rule has been in force since April 2000 but mirrored earlier statements in practice directions and in any event is a statement of the obvious. If written submissions are going to assist the Court where primary findings are under challenge, they must descend from the level of generality to the matters dealt with in the rule and where credit is involved the Court must be favoured with an analysis of the evidence which is said to bring the case within one of the exceptions to the rule in Abalos. 30 The appellant's submissions totally failed to undertake this task. They consisted of references to various parts of the judgment and submissions were made that the Judge should have come to a different conclusion. Submissions in that form suggest to a reader that what the Court is being invited to do, in accordance with Warren v Coombs (1979) 142 CLR 531, is to come to different conclusions on the basis of the Judge's primary findings. They do not signal either to the Court or to the respondents that an attack is going to be made on those primary findings. 31 Submissions in that form are of no use to either the Court or the respondents, or indeed to the appellant when primary findings are attacked, and an appeal can only succeed if one or other of the exceptions to the Abalos principle is established. I would propose that the appeal be dismissed with costs. 32 MEAGHER JA: I agree. 33 GILES JA: I agree. 34 MEAGHER JA: The order of the Court, therefore, is the appeal is dismissed with costs. ****** 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.