New South Wales Court of Appeal CITATION : Nevin v B & R Enclosures [2004] NSWCA 339 HEARING DATE(S) : 29 July 2004 JUDGMENT DATE : 24 September 2004 JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; Tobias JA at 3 DECISION : (a) Appeal allowed; (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability; (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages; (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951, if otherwise qualified CATCHWORDS : EVIDENCE - Burden of proof - Prof by direct evidence - Proof by other facts - Proof of someone's negligence - On probability, proof of respondent's evidence - EVIDENCE - Findings by trial judge - Credibility - Rejection of evidence due to lack of credibility - Evidence overwhelmingly supports uncreditable witness - Restoration of credit on appeal - APPEALS - Negligence - Defendant wins at first instance - Trial judge did not deal with damages - Limited new trial required - Trial judge ought to have dealt with all litigated issues LEGISLATION CITED : Evidence Act 1995 Workers Compensation Act 1987 Jones v Dunkel (1959) 101 CLR 298 CASES CITED : Payne v Parker [1976] 1 NSWLR 191 Devries v Australian National Railways Commission (1993) 177 CLR 472 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 PARTIES : Mark Nevin B & R Enclosures Pty Limited FILE NUMBER(S) : CA 40968/03 COUNSEL : A: Mr Brian Donovan QC R: Mr Simon J Harben SC SOLICITORS : A: Bale Boshev Lawyers, Hamilton R: Thomas Laycock Solicitors, Newcastle LOWER COURT District Court JURISDICTION : LOWER COURT DC 657/01 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40968/03 DC 657/01 SHELLER JA BEAZLEY JA TOBIAS JA Friday 24 September 2004 MARK KENNETH NEVIN v B & R ENCLOSURES PTY LIMITED Judgment 1 SHELLER JA: I have had the benefit of reading the judgment of Tobias JA in draft. I agree with it. 2 BEAZLEY JA: I agree with Tobias JA. 3 TOBIAS JA: Mark Kenneth Nevin (the appellant), sliced open the back of his right hand when it came into contact with what he thought was the sharp edge of a stainless steel electrical switchboard enclosure box (the box) while at work on 21 March 2000. He commenced proceedings in the District Court not against his employer, but against the manufacturer of the box, B & R Enclosures Pty Limited (the respondent), claiming damages for personal injuries caused by the respondent's negligent manufacture of the box. 4 On 13 October 2003 the primary judge, Naughton DCJ, entered a verdict for the respondent on the basis that the appellant had failed to prove, on the balance of probabilities, that the respondent had breached any relevant duty of care to the appellant in the manufacture, assembly or inspection of the box. The appellant appeals from this decision. The facts 5 At the time of the accident the appellant, then 23, was employed by J A Martin Electrical Pty Limited (J A Martin) as an electrical trades assistant. J A Martin also employed the appellant's father, Mr Graham Nevin, (Mr Nevin Snr), as a licensed and experienced electrician. On the day of the accident Mr Nevin Snr was working at the Southland Colliery near Cessnock (the Colliery) with the appellant as his assistant. The pair were in the process of removing the box they had installed in February 2000, only a few weeks earlier, from a wall inside a secured and gated high voltage electrical compound. The size of the box was not made wholly clear but appears to have been approximately 800mm in height, 600mm wide and 300mm deep. It was necessary to remove the box because it was found to be too small to accommodate the necessary power level that was required to pass through the switching arrangement set up inside it. 6 The evidence of the accident came from the appellant and to a lesser extent his father. According to the appellant, at the time of the accident his father was crouching down and working at disconnecting the wiring in the box. The door to the box was open, in the appellant's estimation about 80° or 90°, to enable his father to undertake this task. The door was, however, capable of opening to 120 degrees. 7 The appellant, who was standing behind his father, lent across him and extended his right hand into the box in an effort, so he said, to "grab a cable". However, the back of his hand then allegedly brushed against the sharp leading edge of what is called an escutcheon bracket. The inside of the box door had two such brackets. One was fixed vertically near to where the handle of the door connected to the box and the other side was fixed vertically to the door near its hinges. The back of the appellant's hand was said to have come into contact with what would have been, from his perspective, the furthest bracket from his standing position: that is, the bracket nearest the door's hinges and, therefore, the box itself. 8 The appellant cried out in pain having withdrawn his hand. His father stopped work and observed that the appellant had sustained a bad gash to the back of his right hand. He took the appellant out of the compound to his truck, where he gained access to a first aid kit, bandaged the wound and then drove his son to Cessnock Hospital. On examination it was found that the appellant had sustained a deep laceration to the base of his middle and ring fingers. The extensor tendon of his middle finger was completely severed, the cut having been down to the bone. The extensor tendon of his ring finger was partially severed. The evidence of the appellant and his witnesses 9 The appellant relied upon his own evidence as well as that of his father and Mr Peel, an electrical engineer who, at the time of the accident, was employed by the Colliery. 10 An issue which occupied a significant part of his Honour's judgment was whether, on the balance of probabilities, the appellant had proved that he had cut his hand on what he said was the sharp edge of the escutcheon bracket. The primary judge considered that the determination of this issue by him was "credibility based" in that it was "governed by my assessment of the reliability of the evidence given by the witnesses in the case" 11 Accordingly, it is necessary to recite the essential parts of that evidence in some detail. 12 According to the appellant, the box upon which Mr Nevin Snr was working stood approximately 1 metre above the concrete floor of the compound. According to Mr Nevin Snr, it stood approximately 600mm above that floor. The appellant said that his father was crouching or bending down loosening a gland that held cables in the bottom of the box. The appellant was standing behind his father and "went to move my hand in, I could tell that he was getting the cables out and I went to put my hand in so I could free them up to make them slide easier through the hole that we had for the gland." 13 The appellant then said that as he was "on my way in", the back of his hand "hit the edge of the edge of the door" whereupon he withdrew his hand, it being covered with blood. 14 A little further on in his examination-in-chief, when asked again how the accident happened, he said that he "lent over to reach cables that were inside the enclosure and as I put my hand in I've just grabbed that sharp edge there and that's all that happened." Again, a little further on, he said that he "simply went in like that to get inside of the box and as I come past that's where I've severed …severed a thing – hand." 15 When asked how he was putting his hand into the box – whether he was putting it in softly or gently or hard, he responded: "it was normal pace. Yeh, nothing soft or hard about it, just going and doing my job." 16 In cross-examination the appellant accepted that he was familiar with the box and with the escutcheon brackets located on the inside of the box's door. After all, he had assisted his father in installing it. However, it was unnecessary on this occasion to have had particular regard to the escutcheon brackets as they had not been utilised or had wires threaded through them when the box was installed some weeks before the accident. 17 The following exchange then took place: "Q. You were completely familiar with the layout of the inside of the door and the box weren't you? A. I know how they are but I wasn't aware that this one had a sharp edge like it did have. Q. Well do you say that this one was different to other ones? A. Yes. Q. There was something on it that was different? A. The escutcheon was different because it was sharp. Q. Well are you certain about that Mr Nevin? A. Does that hand say I am?" 18 When asked whether he was aware that this particular box had a sharp edge compared to his previous experience, given that he had helped to install the box in the first place, the appellant responded: "I had never touched the door before that. I wasn't even touching the door. I glided my hand past the door and that's when I come in contact and cut it, oblivious to it having a sharp edge. I felt plenty of boards after it as well and they've all been blunt." When it was suggested to the appellant that he would have seen the sharp edge of the escutcheon bracket when he assisted in installing the box, he responded: "What got a magnifying glass out and had a look at like? I've seen the door, I open the door, we were working inside the box. All the door was doing was shutting." 19 It was then suggested to the appellant that when originally installing the box, he had checked that it had escutcheon brackets or panels on it for use, to which he responded: "We didn't need them anyway. We did not need the escutcheon plate on the door. We had nothing to do on the door. …I went in and that's when I caught my hand on the escutcheon plate because I was oblivious to it having a razor sharp edge." 20 Again, when asked whether there was any problem with accessing the interior of the box, he responded: "There was not a problem with accessing it. Like I could get my hands in there but as I've brushed past it, that's where I've cut myself." 21 At the behest of the primary judge, who at this point of the cross-examination indicated a tentative view to counsel that he could not see how the accident could have happened by the appellant brushing his hand against the box, it was put to the appellant that he could not have injured himself on the escutcheon bracket inside this particular box in the manner that he had described. It was put to him: "It just couldn't have happened?", to which he responded: "It did". 22 Finally, in re-examination, the following exchange took place: "Q. And in the operation that you were carrying out at that time of the job of doing that particular wiring job, was there any need for you to closely examine the escutcheon plates? A. No." 23 In his examination-in-chief, Mr Nevin Snr said that he was crouching in front of the box and disconnecting the electrical wiring within it. He was aware that the appellant was standing behind him watching him and then, when asked what happened, said that he recollected the appellant saying "I've cut myself". 24 When, in cross-examination, it was suggested to him that if the appellant's injury had occurred as he had said, he would have seen the appellant's hand coming past his right shoulder, he responded: "I was crouched in front of the switchboard looking at what I was doing. You know, I haven't got eyes in the back of my head." 25 After taking the appellant to the hospital, Mr Nevin Snr returned to the Colliery and reported the accident to Mr David Ronald Peel (Mr Peel). Mr Nevin Snr then returned with Mr Peel to the site and said he saw "blood on the box and on the ground near it and blood stains on the escutcheon bracket on the inside of the door of the box." He identified that bracket as the one on the inside of the door closest to the hinges. He noticed when looking at it that it had a very sharp edge to it. When asked in what way it was sharp, he responded "[w]hat I felt when running our fingers down the actual sheared edge of the bracket that it was serrated and very sharp." When asked whether had ever seen the edge of an escutcheon mounting like this one, Mr Nevin Snr replied in the negative; and when asked " how are they normally? ", he responded: "The ones I've seen and I have taken particular notice since this accident, that serrated edge if it is left on is always turned back away, not facing out, facing in, or the sharp edge has been removed." 26 It is convenient to interpolate at this point that Mr Peel, whose evidence I shall refer to shortly, did not suggest that the edge of the escutcheon bracket was serrated although he said it was very sharp. Furthermore, Mr Bridges, the only witness called on behalf of the respondent and who described the manufacturing process of the box, said that that process could not result in a serrated edge due to the guillotining process that was employed in cutting stainless steel sheets for the bracket. I mention this matter now as the primary judge considered that the evidence of Mr Nevin Snr that the edge was serrated, was at least one factor which justified him in regarding his evidence as suspect. 27 In cross-examination as to what he saw with Mr Peel on returning to the site of the accident, Mr Nevin Snr was asked about his observations as to blood on the box and/or the bracket. He agreed that in chief he had used the words "there was blood on the box" and having further agreed that he had noticed blood on the escutcheon bracket, the following exchange took place: "Q. It wasn't limited to the bracket though, was it? It was on the box itself? A. No, it was on that bracket on the door – the escutcheon bracket on the door and on the ground is what I said where the blood was. Q. Mr Nevin, what I want to suggest to you is that you said there was blood on the box? A. Well, I think that was a pretty general term, yes. Q. Well, it wasn't. You're not suggesting, are you, that the only place on this box that there was blood was on the escutcheon bar, are you? A. I think so, yes. Q. What, none on the door? A. There may have been a spot here or there, you know. There was definitely none in the box, if that's what you're trying to say." 28 Again, the primary judge considered that there was some inconsistency in Mr Nevin Snr's evidence as to where he observed blood that militated against acceptance of his evidence. I shall return to this below. 29 In chief, Mr Nevin Snr had said that one or two days after the accident he had detached the box from the wall of the compound and taken it to the Colliery's electrical workshop. He did this, so he said, because "once it was installed it was Southland Colliery's property". 30 In cross-examination he agreed that work had been carried out upon the box at J A Martin's workshop before it had been installed prior to the accident. It was his understanding that it had been in the workshop for some time. The workshop had installed within the box two or three batteries and a battery charger. These items had been fixed within the box (but not on the door) with the aid of brackets. After the box had been installed some four to six cables entered the box via a hole in its base. These were the cables that he was seeking to remove when the appellant sustained his injury. 31 A line of questioning then took place intended to suggest, given the evidence of Mr Bridges to which I shall later refer, that the original escutcheon bracket may have been damaged when it was in J A Martin's workshop. In this respect, Mr Nevin Snr agreed that J A Martin from time to time manufactured its own boxes in one of its workshops and that they used pressed sheet metal for that purpose. Further, the boxes manufactured by J A Martin would include components such as escutcheon bars or door rails. The following exchange then took place: "Q. You don't know whether any other part of the box had been worked on, for example any of the metal components such as the escutcheon rails, you don't know what work might have been done on them by employees of J A Martin, do you? A. I don't know but there was no need to do any work on them. Q. Well, you're assuming that, aren't you? A. I'm telling you that no one needed to do any work to them parts on that box." 32 Mr Peel was employed at the Colliery as an electrical supervisor. He recollected accompanying Mr Nevin Snr to the site of the accident. He said that he "could see clearly on the back mounting escutcheon, a burr or an edge which was very sharp". When asked what he meant by a "burr" he said "metal which is pretty sharp which was on the rear end of that mounting escutcheon" which, he said, was "sprayed with blood". He further said that the sharp edge of the escutcheon extended over its whole length. He agreed that this was the first time that he had come across this type of escutcheon mounting with such a sharp edge. 33 Mr Peel then said that he decided that the box should be removed from service and replaced. It was returned to the Colliery's workshop where he gave instructions "to an electrical tradesman" to "clean the blood off the box and to remove the burr". When asked whether he saw the box again, he said that he had and that it had been cleaned up and the burr removed. The primary judge then asked the name of the tradesman who carried out this work and was informed that it was a Mr Des Pond who was employed by the Colliery at the time. When asked what happened to the box after it had been cleaned up, Mr Peel said it had been re-used and put back into service. 34 In cross-examination, Mr Peel was asked whether he saw blood on the ground. He said there was quite a lot of blood but that he did not know if there was blood on the ground as he did not look. He said that he was looking at the enclosure and saw blood on it. The following exchange then took place: "Q. Did you see the blood on the enclosure on the framework of the box itself as opposed to the door, just starting with that proposition? A. There was a lot of blood. It could've been on the framework as well as the door. Q. And your recollection is that it was on the door? A. Yes. Q. But not limited to that panel? A. No. Q. So in other words a lot of blood in the area of in particular the door of the box? A. Yes. Q. But you couldn't say it wasn't on the box? A. No. Q. And you didn't make any particular observation about where it was on the ground? A. No." The primary judge's decision 35 The primary judge said that he had "listened carefully to the oral evidence and took account of the demeanour of all of the witnesses as they gave their evidence. There were many problems with the evidence of the plaintiff and his two witnesses. I shall illustrate that." 36 Regrettably, his Honour did not elaborate upon the extent to which, if at all, the demeanour of the appellant, his father and Mr Peel, played in his assessment of their evidence. Nor did he identify any aspects of their demeanour upon which he relied. The illustrations of the "many problems" with their evidence, which he then set out, were not demeanour-based. 37 The primary judge then listed eleven matters which, he said, concerned him with respect to the appellant's evidence. In my opinion, none of them bears scrutiny. I shall deal with them seriatim. (a) (i) The primary judge asserted that there was no attempt by the appellant to explain why, where or how he " went to grab a cable ". There was simply insufficient detail, so he said, about the allegation to make it impressive. However, the appellant made it abundantly clear how the injury to the back of his hand occurred. Not only did he explain that orally but he also demonstrated it on a smaller version of the box, Exhibit B. Further, he explained why he " went to grab a cable " in the following passage of his evidence-in-chief. "He [his father] was crouched, I went to move my hand in, I could tell that he was getting the cables out and I went to put my hand inside to free them up to make them slide easier through the hole that we had for the gland." (ii) His Honour considered that it was a " problem " that there was no evidence that the appellant had been instructed by his father to do anything requiring him to put his right hand into the box. Mr Nevin Snr had, in cross-examination, said that his son was a competent unlicensed electrician " so if he needed instructions I would give them to him ". It is clear, given the fact that the appellant was assisting his father and was aware of what his father was doing, that he needed no instructions to carry out the task that he attempted. (iii) In my opinion, the first " problem " identified by the primary judge is factually wrong and otherwise without substance. (b) The second "problem" identified by his Honour was that, when installing the box some weeks earlier and wiring it up, it was likely that the appellant would have noticed whether the edge of the relevant escutcheon bracket was sharp. However, the evidence to which I have referred in [18], [19] and [22] above suggests the contrary. When the box and its wiring was installed, no use was made of the escutcheon bracket. The appellant's previous experience of such boxes, upon which he was not challenged, was that to the extent to which he had noticed it, the leading edge of the bracket was always blunt. Furthermore, an examination of Exhibit B provided to the Court makes it clear that the sharpness or otherwise of the bracket's edge is far from obvious unless one was minded to examine it very closely. In the present case, it is clear that the appellant had no reason to undertake such an examination at the time of the box's original installation. It follows that the second reason identified by the primary judge as a "problem" with the appellant's evidence has no substance. (c) The third " problem " advanced by his Honour was that if Mr Nevin Snr was bending down with his hands in the box doing work inside it when the accident happened, his vision would have been directed inside the box. It is therefore likely, so his Honour said, that Mr Nevin Snr would have known what happened if, as the appellant said, he extended his right hand in to the area of the box towards the rear of the door. His Honour asserts that Mr Nevin Snr would have been aware of the appellant's right arm going around and/or over him in an extended fashion towards the escutcheon bracket furthest from both of them and close to the internal hinging arrangement on the back of the door. The fact that he was not so aware reflected, apparently, on his credibility. I see no basis, either in fact or as a matter of logic, for this finding. As Mr Nevin Snr said, he was looking at what he was doing and did not have eyes in the back of his head. It is obvious that the movement made by the appellant which resulted in his injury occurred in a split second. As soon as the injury occurred, the appellant withdrew his hand and screamed with pain. It was that which attracted Mr Nevin Snr's attention. It is neither surprising nor illogical that he did not notice the movement made by the appellant which resulted in the injury. (d) (i) The fourth "problem" advanced by the primary judge was that the alleged movement of the appellant's hand was described by him in "vague and inconsistent terms". The suggestion is made by his Honour that when asked how the accident happened the appellant replied that he "hit the edge of the door and cut my hand". On the other hand, when demonstrating how the accident occurred with the aid of with Exhibit B, the appellant indicated the leading edge of the furthest escutcheon bracket attached to the back of the door as the part of the door with which he came into contact. His Honour considered that this demonstration was inconsistent with his evidence-in-chief. It was not: see [14], [18] and [20] above. (ii) The appellant had also said that the door of the box was open at an angle of about 90° " or a little less, maybe ". It was common ground that the door could open to about 120°. His Honour considered that the door was more likely open wider than 90° having regard to the fact that Mr Nevin Snr was working inside it. That being so, he said it seemed unlikely that the appellant would have brushed the back of his middle and ring fingers against the leading edge of the furthest escutcheon bracket if he was trying to " grab " cables inside the box. I see no basis in fact or logic for this assertion even if the door was open wider than the 90° asserted by the appellant. This was because the escutcheon bracket was located immediately adjacent to the hinges of the door so that the opening of the door by a further 30° would make little or no difference to the angle or location of the bracket. (e) The fifth matter referred to by the primary judge related to the appellant's ability, after the accident, to use a Stanley knife. Why his Honour referred to this as one of the " problems " with the appellant's evidence was not explained. (f) The sixth " problem " was, apparently, the fact that the appellant was familiar with the inside of the box, including the back of the door, but had not noticed any sharp edge on the relevant escutcheon bracket at any time prior to the accident. In my opinion this " problem " is no different from the second " problem " referred to above. It has no substance. (g) (i) The seventh reason is an extremely odd one. The " problem " identified by his Honour was that the box on which the appellant injured himself was not produced in evidence to the Court. His Honour noted that the appellant had said that the box was still at the Colliery, where the accident happened. So it was. However, firstly, it was the property of the Colliery and, secondly, the unchallenged evidence was that after it was cleaned up it was re-used. From that I infer that it is now attached to some other part of the Colliery and is set up with wires and the like. His Honour did not explain why the Colliery should produce it. It was certainly no longer within the control of the appellant, his father or J A Martin. (ii) The primary judge also considered that the appellant's evidence, like that of Mr Peel, that the Colliery had " rounded off the edge " of the escutcheon bracket after the accident was insufficient in detail to make that evidence " impressive ". There was, so his Honour said, no detail of when or how or with what tools and/or materials that was done. The person who allegedly carried out the work was not called and his absence was not explained. I will return to this last point later: see [39(v)] below. The balance of his Honour's reasons are unsustainable. I would have thought that any attempt to call the evidence, which his Honour says is missing, would have been objected to as irrelevant, as it clearly was. (h) The eighth reason was the primary judge's finding that the fact that no-one, including the appellant, was able to say that he had ever known of any similarly sharp-edged escutcheon bracket inside the door of an electrical enclosure box, was " significant ". This matter has bearing upon the evidence of Mr Bridges relating to whether it was possible for such a box to be produced by the respondent with a sharp-edged escutcheon bracket. I shall return to that issue below. (i) As a ninth reason the primary judge drew attention to the fact that the appellant said the subject edge of the escutcheon bracket was " razor-sharp " whereas his father had said it had a " serrated edge ". In his Honour's opinion, in the context of a case such as this where " credit was very much in issue and therefore matters of detail critical, that was relevantly an inconsistency ". I disagree. It is true that neither the appellant nor Mr Peel said that the edge was serrated. But both said it was razor sharp as did Mr Nevin Snr. I see no relevant inconsistency in the evidence upon which his Honour relies. (j) Tenthly, the primary judge then referred to the evidence of the appellant that as he put his hand in he " brushed against the sharp edge ". He considered that as the appellant's middle finger was cut to the bone and the extensor tendon of that finger was completely severed, the use of the word " brushed " seemed to him " strange ". Again, I do not consider that there is any substance in this point. It is clear and understandable from the appellant's evidence that the back of his hand brushed against the edge, which because it was razor sharp inflicted the injury in question. (k) Finally, the primary judge referred to the evidence of the appellant in re-examination. The appellant gave evidence " which was unacceptably vague " as to what he meant by a " sharp edge ". A reading of the relevant part of his re-examination does not bear out this criticism. In my opinion, none of the criticisms of the appellant's evidence identified by the primary judge was justified. 38 The primary judge then identified ten "problems" with the evidence of Mr Nevin Snr. In my opinion, none of them have any substance. I shall also deal with them seriatim. (a) (i) His Honour first referred to the fact that Mr Nevin Snr and the appellant had installed the box prior to the accident, wired it up, tested it and found that it needed to be replaced with a bigger box. His Honour noted that Mr Nevin Snr gave no evidence that during its installation he had seen anything unusual or untoward about the edge of the rear escutcheon bracket attached to the back of the box. His Honour considered that that implied that there was nothing wrong with it. (ii) Although Mr Nevin Snr agreed in cross-examination that in his experience of handling this particular brand of box, the sharp edge of the escutcheon bracket that he had described with respect to the subject box was " a completely one-off situation ", no cross-examination was directed at him to suggest, as his Honour has, that having installed the box originally, he would have noticed whether the escutcheon bracket had a sharp edge and the fact that he had not was indicative that it was not razor sharp. Furthermore, the respondent's case before the primary judge was that, when the box left its factory, the edge of escutcheon bracket in question had been de-burred or bevelled and that, if it was sharp at the time of the accident, this was because it had been interfered with since it left the factory. However, although it was suggested to Mr Nevin Snr that the sharp edge to the escutcheon bracket might have occurred whilst the box was in the workshop of J A Martin, it was never suggested to him that it was not sharp at the time that the box was installed at the Colliery. There was no basis upon which his Honour could have drawn an inference from Mr Nevin Snr's evidence that the edge was not sharp at the time of the accident. (b) Secondly, his Honour identified an alleged inconsistency in Mr Nevin Snr's evidence in that he had said that the box had been removed before he and his son arrived to install a new one; he then said that on arrival they had to remove the old box. A reading of the evidence in question discloses no such inconsistency. At no time did Mr Nevin Snr suggest that the box that he had installed some weeks before the accident had been removed prior to the accident. His Honour has simply misunderstood the evidence. (c) (i) The third point made by the primary judge was that it was notable that Mr Nevin Snr did not observe, nor was he aware of, the appellant putting his right hand into the box or trying to do anything in the box while he himself was working with his hands inside the box. Nor, his Honour said, did Mr Nevin Snr say that his son pointed out to him the offending sharp edge at the time of the accident. Further, he regarded it as " notable " that Mr Nevin Snr did not suggest that the appellant had said to him that he had cut himself on the escutcheon bracket or that he had inspected or otherwise seen anything dangerous about the edge of the bracket at the time of the accident. (ii) The first part of the foregoing criticism is the same as that referred to in [36(c)] above and requires no further comment. So far as the second aspect of the criticism is concerned, it is hardly surprising that, after he had screamed in pain, the appellant had failed to point out to his father the " alleged offending sharp edge " or to indicate that he had cut himself thereon. Still less, that Mr Nevin Snr failed at that time to inspect the bracket. Mr Nevin Snr's evidence was that when the appellant said that he had cut himself, he stood up and asked to look at the wound and, having seen a bad gash on the top of his right hand and a lot of blood, he was concerned only to get him to the hospital. Given the nature of the injury and the relationship between the appellant and Mr Nevin Snr, it is hardly surprising that his one and only concern at that point of time was to obtain urgent medical attention for his injured son. The fact is that immediately after he left the hospital, Mr Nevin Snr approached Mr Peel and they both attended the site of the accident and both observed the razor-sharp edge of the escutcheon bracket. In my opinion, his Honour's criticism of Mr Nevin Snr's evidence is unjustified. (d) The fourth criticism was that Mr Nevin Snr did not give evidence that either on the way to or at the hospital, the appellant had informed him that he had cut himself on the edge of the rear escutcheon bracket. The implication, as I understand it, is that Mr Nevin Snr was unaware of the reason for his son's injury until he re-attended the site. However, his Honour seems to have overlooked the notes of the Emergency Department of Cessnock Hospital that record that the appellant had accidentally cut his right hand on a metal power box whilst at work. Further, that the Workers Compensation Medical Certificate the appellant received on the same day identified the cause of his injury as " reaching to metal box and cut hand on edge ". Only the appellant could have supplied this information to the hospital authorities. It is entirely consistent with his evidence. The criticism of Mr Nevin Snr's evidence is, again, without foundation. (e) (i) Fifthly, the primary judge referred to the fact that Mr Nevin Snr and Mr Peel, on attending the site of the accident, saw blood on the box and the escutcheon bracket. Yet, so his Honour said, if there was blood in the box and inside its door, Mr Nevin Snr would have seen it as he arose from his crouched position and asked to see the appellant's hand. At no time did Mr Nevin Snr give evidence of seeing any blood in or near the box prior to taking his son to hospital. His Honour considered that it was "inherently unlikely that Mr Nevin Snr would not have known what caused the cut on his son's fingers before he and his son went to the hospital." (ii) A reading of the transcript makes it clear that the appellant was not asked either in chief or in cross-examination whether he had informed his father of how the accident had been caused; nor was Mr Nevin Snr asked whether his son had told him of that cause. Further, after the appellant had said " I've cut myself ", Mr Nevin Snr stood up, turned round and asked his son to show him, a perfectly natural reaction in the circumstances. He then saw that the appellant's hand was " bleeding quite a lot " so his only concern was to get him first aid and medical treatment. To suggest in those circumstances that Mr Nevin Snr would have necessarily seen the blood on the door when he stood up and turned round, was unwarranted. (iii) Under this head, his Honour noted that Mr Nevin Snr and Mr Peel " filled out the appropriate paperwork " but that that " paperwork " was neither produced nor described. A similar reference is made by his Honour when detailing the " problems " with Mr Peel's evidence: see [40(h)] below. The implication – for it was neither direct nor express – is that Mr Nevin Snr had something to hide or had written something in the " paperwork " which was inconsistent with his evidence at trial. There was, however, no reason for the appellant to have produced the " paperwork ". It was neither his nor J A Martin's. It belonged to the Colliery. It was open to the respondent to subpoena it and use it in cross-examining Mr Nevin Snr if it considered that it might be helpful to its case. It did not do so. (iv) Accordingly, there is no substance in his Honour's criticisms of these aspects of Mr Nevin Snr's evidence. (f) The sixth criticism of Mr Nevin Snr's evidence was that he had said that the edge of the rear escutcheon bracket was serrated and very sharp. He was not asked to elaborate on what he meant by " serrated ". On the other hand, as already observed, the appellant did not suggest it was serrated although this is not surprising given that he did not see the box again after the accident. Neither did Mr Peel suggest that it was serrated. His Honour then referred to the evidence of Mr Bridges, the managing director of the respondent, who denied that, after guillotining, the edges of the stainless steel sheets were " serrated " although he accepted that they had two razor-like edges which were then bevelled. For reasons already adverted to in [36(i)] above, I do not consider that the fact that Mr Nevin Snr thought that the edge of the bracket was serrated in any way impacts upon his credibility. (g) (i) Seventhly, an inconsistency was suggested in respect of when Mr Nevin Snr completed the removal of the box. However, his Honour accepted that of its own, that inconsistency would not matter. It was only when taken in conjunction with all the other matters to which he referred that, so he asserted, " it adds up to an unconvincing story ". Given that I consider that the other matters referred to by his Honour are without foundation, the inconsistency as to when the box was finally removed is of no consequence. (ii) The primary judge then criticised Mr Nevin Snr in removing the box and taking it to the Colliery workshop. Why he did that was, to his Honour, a mystery. The box had not come from the Colliery's workshop but from J A Martin's workshop. What his Honour has overlooked is the unchallenged evidence of Mr Nevin Snr that once the box was installed at the Colliery, it became its property. He has further overlooked the fact that the box, after it was cleaned up, was re-used by the Colliery. This criticism of Mr Nevin Snr is unjustified. (h) The eighth criticism repeated previous criticisms of both the appellant and Mr Nevin Snr to the effect that if the appellant had gone past him and made contact with the edge of the rear escutcheon bracket, it " seems likely " that Mr Nevin Snr would have been aware of that or at least of his son reaching around or above him. I have already commented upon this criticism (see [37(c)] above), which in my view is unjustified. (i) Ninthly, criticism was made of alleged inconsistent evidence of Mr Nevin Snr with respect to him seeing blood. His Honour referred to his examination in chief when he said he saw " blood in the box ", and then to his cross-examination where he thought that the only place on the box where there was blood was " on the escutcheon panel " to which he added: "there was definitely none in the box" Regrettably, his Honour's record of Mr Nevin Snr's evidence in chief on this issue was erroneous as in his examination-in-chief he had said that he saw " blood on the box ": not " in the box ". Again, the criticism has no factual basis. (j) Finally, his Honour again repeats the evidence of Mr Nevin Snr that, when he returned to the site of the accident after taking the appellant to the hospital, he saw that the edge of the escutcheon bracket was not only very sharp but also " serrated ". This is a repeated criticism upon which I have already commented (see [37(i)] above). 39 Mr Peel's evidence was also criticised. It is difficult to understand why, given that he was clearly an independent witness. He had given evidence that he did not know the appellant although he had previously worked with his father. He was cross-examined as to how he had come to give evidence. He said that towards the end of July 2003 Mr Nevin Snr had telephoned him and that was the first time anyone had spoken to him about the accident. When asked who had requested he give evidence, he said he had been subpoenaed. He was not challenged to suggest that he was attempting to assist Mr Nevin Snr and his son. 40 The primary judge made six criticisms of Mr Peel's evidence, none of which have substance. I shall again deal with them seriatim: (a) The primary judge first noted that Mr Peel had said that Mr Nevin Snr had " reported to me that there had been an accident ". However, Mr Peel gave no detail beyond that and did not allege that Mr Nevin Snr had told him anything more than that. According to his Honour, if Mr Nevin Snr knew that his son had cut his hand on the box or on the escutcheon bracket, it " seems likely " that he would have told Mr Peel and Mr Peel would have told the court. The problem with this criticism is two-fold. In the first place, in chief Mr Peel was asked whether, on 21 March 2000, Mr Nevin Snr came and told him something. His response was: "Yes. He reported to me that there had been an accident and he'd taken Mark to Cessnock Hospital." The transcript makes clear that Mr Peel was not asked the details of what he had been told by Mr Nevin Snr. Nor was he asked that in cross-examination. The second point is that if he had been asked, it would no doubt have been objected to as hearsay. If he had been told the cause of his injuries by the appellant but had no direct knowledge himself (as he said), then the exception to the hearsay rule referred to in s 64(3) of the Evidence Act, 1995 would not apply. His Honour's criticism is without foundation. (b) The second criticism of Mr Peel's evidence is also unwarranted. In his evidence-in-chief Mr Peel had said that he and Mr Nevin Snr proceeded to where the accident took place, went over to the box and " opened it ". That being so, his Honour observed, Mr Nevin Snr must have closed the door (which to his Honour " seems likely "), before taking his son to hospital. If he had done that and there had been blood on any part of the box, he presumably would have seen it but he did not claim to have done so until he returned from the hospital. No suggestion was made to either the appellant or Mr Nevin Snr that he had closed the door of the box before the appellant was taken to the hospital; nor was he asked whether he had seen blood on the box at that time. This was hardly surprising given his concern for his injured son. Given that it was suggested to him in cross-examination that his hand was bleeding " quite a lot " and that there was " quite a lot of blood coming out of his hand ", at the very least, I find this criticism trivial. (c) Thirdly, the point was made by the primary judge that Mr Peel had not suggested that the edge of the escutcheon bracket was serrated. I have already commented on that point (see [37(i)] above). (d) The fourth criticism is again very odd. In his evidence-in-chief, Mr Peel said that " we decided to remove [the box] from service and replace it " (emphasis added). According to his Honour, Mr Nevin Snr said that he removed it himself. So, it is inferentially suggested, there was an inconsistency in the evidence between these two witnesses. It did not exist. (e) (i) Fifthly, Mr Peel's evidence was that when the box was returned to the Colliery workshop, he gave instructions to an electrical tradesman to clean the blood off the box and remove the burr. He was criticised by the primary judge for not volunteering the name of the alleged " electrical tradesman ". His Honour asked who it was and Mr Peel told him it was Mr Pond. I find the implied criticism in his Honour's comment unfounded. His Honour then suggested that as Mr Pond did not give evidence and his absence was not explained, an appropriate inference could be drawn pursuant to Jones v Dunkel (1959) 101 CLR 298 that if Mr Pond had been called to give evidence, he would not have assisted the appellant's case. In what way is not explained. (ii) In my opinion, his Honour has misused and misunderstood the rule in Jones v Dunkel . The principle may be invoked for a deficiency in the evidence either of the party bearing the legal onus of proving an issue, or of the party bearing the evidentiary burden only. If the failure is of the former kind (as would appear to be the case here), the principle has been formulated as one whereby the direct evidence of the party carrying onus may be more readily rejected and the inferences for which he contends may be treated with greater reserve: Payne v Parker [1976] 1 NSWLR 191 at 201A-B. The problem in the present case, however, is two-fold. (iii) Firstly, the evidence of both Mr Nevin Snr and Mr Peel was that when they inspected the escutcheon bracket its edge was razor-sharp. As I have already observed, the respondent's case at trial had always been that when the box left the factory, the edge in question had been bevelled and that if it was sharp at the time of the accident it was because it had been interfered with after it had left the factory. In these circumstances, it not having ever been suggested to either Mr Nevin Snr or Mr Peel that they were mistaken in their observation that the edge of the escutcheon bracket was razor-sharp, there was no proper basis upon which his Honour could utilise the failure to call Mr Pond for the purpose of rejecting what was essentially unchallenged evidence or perhaps more relevantly, of more readily accepting the evidence of Mr Bridges. In any event, Mr Pond's evidence would only have been cumulative to that of Mr Nevin Snr and Mr Peel: it would have added nothing. (iv) Secondly, it is a condition of applying the principle that Mr Pond's evidence would elucidate a particular matter that is otherwise not clear: Payne at 201E. That condition was not satisfied in the present case. In particular, there was no evidence upon which his Honour was entitled to conclude that Mr Pond would probably know that the edge of the escutcheon bracket was bevelled or deburred so as to provide a proper basis for making an adverse deduction from the failure of the appellant to call him in his case: Payne at 202D. (v) Accordingly, there was no basis upon which his Honour could apply the principle in Jones v Dunkel to justifiably reject the evidence of Mr Nevin Snr and Mr Peel that, when they inspected the edge of the escutcheon bracket, it was not razor-sharp. (vi) His Honour then further criticised Mr Peel's evidence because he had not detailed how the " burr ", being the sharp edge of the bracket, was removed. His Honour considered that one would reasonably expect some detail of how the burr was removed and for the box itself to be produced to the court for inspection. He considered that as the relevant edge of the bracket was a central aspect of the case, if it had been smoothed out one would have expected that some detail would have provided at the hearing. I disagree. What his Honour says simply does not make sense. Whether or not the burr was removed was a false and irrelevant issue. The only relevant issue was whether, before it was removed, the edge was sharp. There was no case was made by the respondent that it was not. (vii) His Honour then referred to Mr Peel's evidence that the box was placed back into service. I set out in full his Honour's criticism: "He [Mr Peel] did not say where. It was not suggested by any witness that it was put back where it had been when the accident happened. The evidence was that the reason that it was removed from that location was because it was too small for the relevant power output level in that location. There was no evidence that it was suitable for some different location and what the power output level at that location was." I reject this statement as untenable. (viii) According to the primary judge, it remained a mystery to him why the box was not returned to J A Martin for rectification rather than to the Colliery workshop. Accordingly, his Honour considered it was the responsibility of J A Martin, not the Colliery, to fix the problem. Why, he asked himself, supposedly rhetorically, did the Colliery repair the problem and without any notice of it to the manufacturer? The answer is obvious. Firstly, the box no longer belonged to J A Martin: it was the property of the Colliery. Secondly, it was no doubt well within the skills of the Colliery workshop to remove the burr as Mr Pond apparently did. Thirdly, given the nature of the repair, it is inconceivable that the Colliery should have given notice of the repair to the respondent. (h) (i) Finally, Mr Peel was criticised because he made no notes and took no photographs. Nor did he make any complaint to the respondent. Mr Nevin Snr gave evidence that he and Mr Peel " filled out the appropriate paperwork ". It would appear that his Honour has referred to the " paperwork " so as to speculate about its contents and to use its absence in order to draw an adverse inference as to the credibility of Mr Peel and, for that matter, Mr Nevin Snr. As I have said (see [38(e)(iii)] above), if its contents had been relevant to any credit issue, it was open to the respondent to have subpoenaed and tendered it or otherwise used it in cross-examination. In the absence of its tender or use by the respondent, it was not open to the primary judge to have used its absence to reflect adversely on the credibility of either Mr Nevin Snr or Mr Peel. (ii) According to his Honour with respect to the " paperwork " (presumably) "there was an unacceptable lack of explanation and clarity." What the paperwork had to do with the matter is difficult to fathom. Likewise, why there was an " unacceptable lack of explanation and clarity " because Mr Peel made no notes nor took any photographs of his inspection of the bracket and made no complaint to the respondent is equally difficult to appreciate. 41 In my opinion, the primary judge demonstrated no tenable basis for rejecting the accounts of the appellant and his witnesses as to how he came to injure his hand. None of the so-called criticism of any of those witnesses was in any way justified. They were entirely without foundation. Nothing was suggested by the respondent in argument on the appeal to suggest that the demeanour of the appellant, his father or Mr Peel could have played any part whatsoever in his Honour's assessment of their credibility. In Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, Brennan, Gaudron and McHugh JJ said: "More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellant court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge's finding depends on any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'." 42 In the present case, it is interesting to note that the primary judge made no express finding that the accident did not occur as the appellant asserted. Nevertheless, I would imply such a finding from what I take to be a finding that the appellant, his father and Mr Peel were not credible witnesses. The only bases upon which it could be said that his Honour rejected those witnesses as lacking credibility and so was not prepared to find that the appellant had, on the balance of probabilities, established that the accident occurred when the back of his right hand came into contact with the razor-sharp edge of the escutcheon bracket, are those which I have recorded above and which I have rejected as without foundation, without substance, unsubstantiated and factually wrong. 43 In my opinion the present case is one where his Honour has palpably misused his advantage in seeing and hearing the witnesses concerned. There was no proper credit basis upon which he could have legitimately rejected their evidence, insofar as it established how the appellant received his injuries. In my opinion, the evidence overwhelmingly establishes that the accident occurred when the appellant brushed or struck the back of his right hand upon the razor-sharp edge of the escutcheon bracket closest to the hinge of the door of the box. The primary judge has unjustifiably reflected adversely on the credibility of the appellant, his father and Mr Peel. Their credibility should now be restored. Was the respondent negligent? 44 The primary judge's finding with respect to breach of duty on the part of the respondent was encapsulated in the following paragraph of his judgment: "Having regard to all of the above considerations I find that the plaintiff has failed to prove on a balance of probabilities that the defendant was in any relevant breach of duty. In particular I find that it has failed to prove on a balance of probability [sic] that the defendant was in any way negligent in the manufacture and/or assembly and/or inspection of the relevant escutcheon panel prior to its leaving the defendant's factory, or otherwise. I find that the subject enclosure box left that factory and passed out of the defendant's area of responsibility in a sound and safe condition, without the razor sharp edge which the plaintiff alleged." 45 These findings of his Honour were based entirely upon the evidence of Mr Bridges, the respondent's managing director. Again, it needs to be remembered that the respondent's case at trial was not that the appellant had not injured himself as he alleged, but that when the box left the respondent's factory, the edge of the relevant escutcheon bracket had been deburred or bevelled by the process employed in its manufacture. Its case was that the bracket must have been tampered with or replaced after it left the respondent's factory and, in all probability, in the workshop of J A Martin. Although the respondent did not concede that the appellant injured himself in the manner alleged, nevertheless no other explanation was forthcoming that would explain how he was injured if it was not as he asserted. 46 The primary judge accepted Mr Bridges as a witness of truth. He described in detail the manufacturing process employed by the respondent to produce stainless steel electrical switch enclosure boxes including the subject box. 47 Mr Bridges described the five stages of the manufacturing process, namely, hole-punching, cutting with the guillotine, "de-burring", bending into a 'U' shape and, lastly, attaching one side of that 'U' to the inside of the door of the box. 48 Relevantly for present purposes, Mr Bridges stated, and it was not contested, that the guillotining of the 1.5mm thick stainless steel sheets left a clean edge like that of a razor blade and had no serrations. Further, the "de-burring" process to which he referred related to the smoothing or bevelling of the razor-sharp edges of the 1.5mm thick vertically guillotined sheet. 49 The primary judge also accepted Mr Bridges' evidence that it manufactured some 10,000-15,000 stainless steel boxes per annum and that, despite specific investigation, he was unaware of any accidents ever having occurred involving the company's products. 50 Of particular relevance was Mr Bridges' description "with acceptable precision" according to his Honour, of the quality control procedures followed by the respondent since at least 1992. Those procedures included internal auditing at least twice a year and external auditing from time to time together with production line visual inspection by the operator at each of the relevant stages of the process, with a final overall product inspection of every item that left the factory. 51 The primary judge referred to the fact that the respondent received no notice of the subject accident until served with the Statement of Claim. Whilst not determinative, he regarded that fact as significant. He was of the opinion that it was usual that if someone had a serious complaint about a product that gave rise to a serious accident referable to the manufacturing process, the manufacturer is reasonably promptly informed. That did not occur in this case. There was no factual foundation for his Honour's opinion which suffered from the same flaws as the reasoning adopted by him to reject the appellant's version of the cause of his injury. 52 As to the "de-burring" procedure, Mr Bridges explained that the operator who feeds the guillotined strips of stainless steel into the machine also operates that machine. It is that operator's job to transfer the stainless steel strips from the guillotine to the de-burring machine. This machine then removes the "corners" on the edges of the 1.5mm thick stainless steel strips before they go to the bending machine. His Honour considered that it would be: "difficult to follow the bending procedure properly if the de-burring procedure was not first carried out." 53 His Honour does not explain the difficulty that he contemplated: nor did it gain any support from Mr Bridges' evidence. 54 The primary judge found that the stainless steel strips with their edges bevelled by the de-burring machine were transferred manually from that machine to the bending machine. Although not referred to by his Honour, Mr Bridges' evidence established that the de-burring machine de-burred 100 items per hour. The operator, who was required to physically move the door rails (as Mr Bridges referred to them) from the de-burring machine to the bending machine, was required to inspect each item which, notwithstanding the rate at which they were produced, was regarded by Mr Bridges as a "simple process", albeit only part of the process. The operator was expected, he said, to inspect every single escutcheon bracket that came from the de-burring machine to ensure that it had in fact been deburred. 55 Mr Bridges also gave evidence that the respondent's products were inspected throughout the entire manufacturing process and, in particular, "at the end of the line at the final assembly they are given a complete inspection." The primary judge considered that Mr Bridges' explanation of the monitoring of all stages of the manufacturing process had the consequence that it was " highly unlikely " that a stainless steel strip with a razor-sharp edge as alleged by the appellant could be installed in a box which subsequently found its way " into trade and commerce ". His Honour referred to Mr Bridges' concluding evidence "that having regard to his company's specific manufacturing processes and quality control procedures, there cannot be an escutcheon bracket ('door rail') leave the defendant's premises without a bevelled edge." In these circumstances, his Honour found that the appellant had failed to prove on the balance of probability that the respondent was negligent in the manufacture and/or assembly and/or inspection of the relevant escutcheon bracket prior to its leaving the respondent's factory. 56 In cross-examination, Mr Bridges accepted that he expected the operators to inspect every single escutcheon bracket that was produced but that if one was produced and continued through the system with a sharp edge, then he recognised that the operators would not have been doing their job correctly. Further, he recognised that it would be a failure of the system if an escutcheon bracket was attached to the door of a box without having been properly de-burred. His cross-examination concluded with the following exchange: "Q. If it is accepted that there was in fact a sharp edge on an escutcheon rod, that would be probably the fault of the manufacturing process, would it not? A. It's not probable that there was a sharp edge because of the processes that we use and the quality system that we apply. If there was a sharp edge then it would be a system failure." 57 The primary judge placed great store upon what he regarded as Mr Bridges' evidence that because of the respondent's specific manufacturing processes and quality control procedures "there cannot be an escutcheon bracket ('door rail') leave the defendant's premises without a bevelled edge." 58 However, Mr Bridges was not so categorical in his evidence. In cross-examination the following exchange took place: "Q. I suppose you have a system of inspection to ensure that each of the escutcheon bars are properly deburred? A. As part of the process , yes. Q. That's because you're aware that it could be that an escutcheon bar does come out that's not properly deburred? A. It's possible. Q. And you're aware, of course, that within these boxes people are working with their hands? A. Correct. Q. And I suggest to you that you'd be aware, would you not, that it's quite possible that one of these escutcheon bars would be attached to an enclosure box when it hadn't been properly deburred? A. Are you asking me if … Q. What I'm suggesting to you is that it's quite possible for that to happen? A. Yes." 59 The respondent submitted that the possibility, which Mr Bridges conceded in the above exchange, could not have occurred in the present case. This was because there was evidence (to which I have referred in [30] above) from Mr Nevin Snr that J A Martin's switchboard department would have affixed with brackets inside the box two or three batteries and a battery charger. It was contended that during the course of this work the relevant escutcheon bracket might have been damaged and replaced by a bracket of J A Martin's manufacture, which retained its sharp edges. It was submitted that the onus lay on the appellant to call evidence from J A Martin that no such damage or interference with the original bracket had occurred. 60 In cross-examination, it was put to Mr Nevin Snr that he was unaware as to whether or not any other part of the box, including the escutcheon bracket, may have been worked on by employees of J A Martin. However as appears from the exchange which I have extracted at [31] above, Mr Nevin Snr was adamant that there was no need for those employees to do any work on the escutcheon bracket as, one can infer, the work that they were required to do was confined to the installation of the batteries and battery charger within the box and which did not involve its door. The problem, as I see it, is that the respondent's theory assumes that any damage to its factory-made escutcheon bracket would have had to be sufficiently serious as to require its complete replacement by an identical bracket of J A Martin's manufacture. The theory further assumes that in manufacturing such a bracket (and J A Martin did manufacture similar boxes with similar components), its manufacturing process and quality control would have failed in that it produced a completed bracket the edges of which had not been deburred or bevelled. 61 In my opinion, the evidence clearly establishes the following: (a) The appellant sustained the injury to his right hand by accidentally bringing the back of his hand into contact with the razor sharp edge of the escutcheon bracket closest to the hinge of the door of the box; (b) Although the respondent had in place a monitoring process that, relevantly at two points, required the bracket to be inspected to determine whether its edges had been de-burred or bevelled, those inspections were required to be carried out by operators in circumstances where, at the first point of inspection, the brackets were being produced at 100 per hour; (c) Mr Bridges' acknowledged that it was " quite possible " for an escutcheon bracket to be attached to an enclosure box which had not been properly de-burred and that this was so notwithstanding the inspection requirements which had been put in place; (d) Mr Bridges further conceded that any human error by any employee who failed to properly inspect a bracket would constitute a failure of the respondent's manufacturing system; (e) Nothing was done to the box whilst in the possession of J A Martin which required any work to be performed on the relevant escutcheon bracket and there was no reason to believe that in carrying out the work of installing two or three batteries and a battery charger affixed by brackets to the inside of the box, sufficient damage might have been caused to the bracket as to warrant its total replacement; (f) In these circumstances, the appellant had discharged the onus of establishing on the balance of probabilities that the respondent manufactured the escutcheon bracket upon which he injured himself. 62 In light of the evidence referred to in [58] above, the primary judge's acceptance of the evidence of Mr Bridges that an escutcheon bracket could not leave the respondent's premises without a bevelled edge was, in my view, unjustified given Mr Bridges' concession that it was "quite possible" that that could occur. After all, it would not be the first time that human error had intervened in an inspection system which had been put in place even though it was more probable than not that the system would work in most cases. Given the necessity of human intervention in the inspection process, that process was not foolproof. 63 Furthermore, in my opinion the primary judge's findings with respect to Mr Bridges' evidence are coloured by his rejection of the evidence of the appellant, his father and Mr Peel. That rejection I have found to be unsustainable. 64 In the foregoing circumstances, in my opinion the box did leave the respondent's premises otherwise than in a sound and safe condition in that the razor-sharp edge of the escutcheon bracket was obviously highly dangerous. It follows that the respondent was in breach of its duty of care in putting into circulation a box containing an escutcheon bracket that was in such a condition. 65 It is trite law that the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings. That burden was explained by Kirby J in Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 at 161 [104] in the following terms: "Fourthly, the burden of establishing a claim in negligence rests on the plaintiff throughout the proceedings (139). That burden requires the proof of a preponderance of evidence in favour of the plaintiff's case. This does not necessarily mean proof by direct evidence. The facts necessary to establish liability may be inferred from the proof of other facts. A plaintiff is not obliged to exclude all possibilities inconsistent with the defendant's liability (140). However, if at the end of the evidence the plaintiff has proved the negligence of someone but not identified the defendant as the person responsible (141) (or has left it equally possible that some person other than the defendant was negligent or that some cause consistent with reasonable care brought about the plaintiff's damage) the claim must be dismissed." 66 In my opinion, the appellant has proved that the negligence of someone has occurred in affixing the escutcheon bracket to the inside of the door of the box with a razor-sharp edge. Furthermore, as a matter of probability, he has proved that it was the respondent who was responsible for that situation. I do not consider that the evidence leaves a possibility that it was J A Martin who was negligent in substituting an escutcheon bracket with a sharp edge for one which had a bevelled edge. The nature of the work carried out to the box in J A Martin's workshop as evidenced by Mr Nevin Snr does not permit of such a finding. 67 In these circumstances, there is sufficient evidence at least to justify a conclusion on the balance of probabilities that the respondent breached its duty of care by permitting the subject escutcheon bracket to be affixed to the inside of the door of the box with its sharp edges intact. This finding is inevitable given the concession by Mr Bridges that if the escutcheon bracket manufactured by the respondent did have a razor-sharp edge as alleged then there was a failure in the system involved in its manufacture. Accordingly, the appellant was entitled to judgment. Contributory negligence 68 The respondent submitted that the appellant was guilty of contributory negligence, particulars of which, as contained in [7] of the respondent's Notice of Grounds of Defence, were as follows: "(a) failure to take care for own safety (b) failure to keep a proper lookout (c) failure to take consideration for the risk of injury when using excessive speed and force in and around metal objects." 69 In my opinion, there is no substance in these allegations. As I made clear when dealing with the primary judge's findings with respect to the cause of the appellant's injuries, he had no reason to suspect that the edge of the escutcheon bracket was razor-sharp given his previous experience with such pieces of equipment. Furthermore, it is apparent from Exhibit B that if the two sides of the 1.5mm wide edge of the escutcheon bracket were razor-sharp, that fact would not be obvious to any person who was not looking for it. Again it was not suggested to the appellant that he was using excessive speed and force in and around the subject bracket: see his evidence at [15] above. Accordingly, there is no evidence to support a finding of contributory negligence on the appellant's part. Should there be a new trial? 70 It was faintly submitted by the respondent that if the primary judge's decision was vitiated for error, there should be a new trial on all issues. This was because an issue arose, which was not dealt with by the primary judge, as to the assessment of the appellant's damages having regard to the provisions of s 151Z(2) of the Workers Compensation Act 1987. 71 Section 151Z(2) provides that where a worker sustains injury for which compensation is payable under the Workers Compensation Act, and the worker takes proceedings independently of that Act to recover damages from a person other than his employer, but is also entitled to take proceedings against that employer, then the damages that may be recovered from the non-employer/defendant are to be reduced by the amount by which the contribution which the plaintiff would be entitled to recover from his employer as a joint tortfeasor, exceeds the amount of the contribution recoverable. 72 In my opinion, s 151Z(2) is relevant only to the quantum of damages that the appellant is entitled to recover. This being so, no proper basis exists for ordering a new trial on the issue of liability as distinct from damages. 73 Because he entered a verdict for the respondent, the primary judge did not assess the damages that the appellant would have received if he had otherwise been entitled to a verdict on liability. Regrettably, therefore, it will be necessary for there to be a new trial limited to the assessment of damages. A further hearing would have been unnecessary had his Honour assessed damages to guard against the possibility of his finding in favour of the respondent on liability being successfully challenged on appeal. It is apparent that his Honour had before him all necessary evidence and submissions to enable him to assess damages had he been minded to do so. 74 Although it can be put no higher than a rule of convenience, it is generally (although not invariably) the practice of judges both of this Court and the District Court who propose to find for the defendant in personal injury cases to assess damages in order to avoid the cost and expense, as well as the inconvenience in the taking up of valuable court time and resources, of a new trial limited to the issue of damages should there be a successful appeal on the issue of liability. That such a course has been encouraged by this court is evidenced by the following observation of Hutley AP, with whom Glass and Samuels JJA agreed, in Lawrence v The Nominal Defendant BC 8400320, 2 July 1984 (unreported): "I would merely like to say one other thing: if the appeal had been allowed, this Court would have had to order a new trial in a case where the damages in any event must be small by current standards. It is unfortunate, therefore, that the trial judge, while dismissing the case, had not gone on to assess damages as, if his decision on due enquiry and search had been wrong, it would have saved the necessity of re-litigating the matter." See also, Di Pietro v Hamilton BC 9002048, 6 September 1990 (unreported) per Kirby P and Handley JA. 75 In my opinion, where the issue of damages in personal injury cases has been fully litigated, and there is at least a reasonable possibility that the trial judge's decision on liability in favour of a defendant may be overturned on appeal, it is both just and convenient that the trial judge should proceed to assess damages to guard against the eventuality of a successful appeal. New trials limited to damages should if at all possible, be avoided by the trial judge taking this course even though he or she proposes to find in favour of the defendant on liability. In this way, the inevitable and ever increasing cost and expense of re-litigating the issue of damages, as well as any waste of the court's time and resources, can be avoided. It is regrettable that the primary judge did not see fit to take that course in the present case. Conclusion 76 For the foregoing reasons I would propose the following orders: (a) Appeal allowed (b) Orders made by Naughton DCJ on 13 October 2003 be set aside and in lieu thereof there be judgment for the appellant against the respondent on the issue of liability (c) The proceedings be remitted to the District Court for the purpose only of assessment of damages (d) The respondent pay the costs of the proceedings to date in the District Court and of the appeal, but to have with respect to the latter a certificate under the Suitor's Fund Act 1951 , if otherwise qualified. ********** Last Modified: 09/24/2004 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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