New South Wales Court of Appeal CITATION: Rubido v Mascot Engineering Co Pty Ltd [2005] NSWCA 6 HEARING DATE(S): 31 January 2005 JUDGMENT DATE: 31 January 2005 JUDGMENT OF: Beazley JA at 27; Ipp JA at 28; McColl JA at 1 DECISION: (1) Appeal allowed (2) Set aside the verdict, judgment and orders made by the primary judge (3) Order that the matter be remitted to the District Court for re-hearing (4) Order the respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. CATCHWORDS: PERSONAL INJURY - duty of care - causation - breach of duty - JUDICIAL OFFICERS - content of obligation to give adequate reasons Suitors' Fund Act 1951 (NSW) LEGISLATION CITED: Supreme Court Rules Part 51 r 21 Beale v GIO of NSW (1997) 48 NSWLR 430 CASES CITED: March v Stramare Pty Ltd (1991) 171 CLR 506 Julio Andres Rubido (Appellant) PARTIES: Mascot Engineering Co Pty Ltd (Respondent) FILE NUMBER(S): CA 40208/04 B H.K Donovan QC/R McLoughry (Appellant) COUNSEL: J G Stewart (Respondent) Eugene Lepore & Associates (Appellant) SOLICITORS: McCulloch & Buggy (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1477/01 LOWER COURT JUDICIAL OFFICER: Delaney DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40208/04 BEAZLEY JA IPP JA McCOLL JA Monday, 31 January 2005 Julio Andres RUBIDO v MASCOT ENGINEERING CO PTY LTD Judgment 1 MCCOLL JA: This is an appeal by leave from a decision of Delaney DCJ in which his Honour gave a verdict in favour of the respondent and ordered judgment accordingly. The appellant was employed by Crane Distribution Limited as a storeman. On 3 July 2001 he was instructed to attend the respondent's premises to collect some concrete pits. The concrete pits were loaded by fork-lift by employees of the respondent onto the back of a utility the appellant had driven to the premises. 2 The appellant asserted that the concrete pits were placed in the wrong position on the utility. He said he spoke to the fork-lift driver who had loaded them onto the utility and asked him to adjust them to the centre of the vehicle. He said the fork-lift driver did not respond but continued driving the fork-lift to bring other items to be placed on the utility. He said that he then got onto the utility to try to shift the position of the pit and that when he went to push the pit he felt a crack in his lower back. In his statement of claim he asserted that in the course of seeking to adjust the pit he suffered an L4/5 disc herniation and aggravation of pre-existing degenerative changes in his lumbar spine. 3 The essence of the appellant's case was that the respondent had breached its duty of care to him by placing the pits in a dangerous or unsafe position on the utility and further by not moving them into a safe position when the appellant so requested. The evidence was within a comparatively short compass. 4 The appellant gave evidence of the circumstances in which he said he was injured and evidence concerning his consequential disabilities. The respondent called three witnesses, two being the employees said to have been the fork-lift drivers on duty on 3 July 2001, and another who was the factory manager at the relevant time. The gist of their evidence was that although they had no particular recollection of the appellant the respondent's practice was that it would move pits if so requested by a driver. In a reserved judgment the primary judge concluded that the appellant had not established that the respondent had breached the duty of care it owed him. It is not easy to describe the route by which he reached that decision. 5 Before he considered the evidence on liability the primary judge spent some time considering the medical evidence. His Honour then turned to the liability issue and first set out at paragraphs 26 to 30 the respondent's evidence to the effect that it was their practice and/or policy always to adjust the position of a load on a truck if so requested by a driver. His Honour then set out the substance of the appellant's evidence at paragraph 31. He accepted that the respondent owed a duty to the appellant to take reasonable care to avoid foreseeable risk of injury. 6 His Honour then said: "33 What did the defendant do? It placed the pits on the utility. It was the opinion of the plaintiff that the placement of the pits was incorrect. He asked that the position be changed once. He did not receive a response. Neither of the forklift drivers on duty had any recollection of the event. However the plaintiff's description of the forklift driver did not match the description of either of them. The plaintiff could have taken many other steps. He could have refused to drive away until the pit was adjusted. He could have called his employer. He could have seen the manager of the … defendant and asked for help. He could have asked the forklift driver again in case the forklift driver had not heard him on the first occasion. He did not do any of these things. When he did not receive a response he tried to move the pits himself. 34 There was no evidence that the defendant refused his request. In my opinion the fact that the pit was placed in the position of the utility which the plaintiff thought was inappropriate was not necessarily of itself a breach of duty as no damage was caused thereby. The tort of negligence is completed by damage being suffered as a consequence of the act or omission. Even if one could say that there was a breach of duty by placing the pit incorrectly on the truck no damage was caused by that action. The injury occurred when the plaintiff took it upon himself to change the position of the pits manually. There was no need for him to do this and even if he thought there was, his actions were not caused by an act or omission by the … defendant, its servants or agents." 7 His Honour concluded: "35 In my opinion no breach of duty has been made out against the defendant and there should be a verdict for the defendant." 8 His Honour then went on to consider issues of contributory negligence and damages. He concluded that the appellant's attempt to move the pit by hand was foolhardy and that he was substantially at fault. He assessed contributory negligence at 60 per cent. He assessed damages at $62,921.28. Having regard to his conclusions he gave verdict and judgment for the respondent and ordered the appellant to pay the respondent's costs. 9 The appellant complains that the primary judge erred in failing to find that the respondent breached its duty of care by failing to load the concrete pits correctly onto his utility and also in failing to find the respondent breached its duty of care as a result of the failure of the respondent's employees to reposition the concrete pits on the utility as requested. The appellant also complains that the primary judge erred in failing to find that the respondent's employees had refused to reposition the concrete pits when requested. 10 The appellant also challenges the primary judge's assessment of contributory negligence as well as his assessment of damages. Fundamental to the appeal however is the appellant's complaint that the primary judge failed to give any or any adequate reasons for the judgment and in particular the complaint that his Honour failed to make any or any proper findings of fact on the evidence adduced before the Court. 11 The respondent has filed a Notice of Contention which does not clearly assert a basis upon which the primary judge's decision should be affirmed apart from the grounds upon which his Honour relied but, rather, appears to refer to evidentiary issues indicating there was a substantial issue before the primary judge as to the appellant's credit. 12 The appellant complains that the primary judge never considered his care concerning wrongful placement of the pits or the case based on the failure of the respondent's employees to respond to his request for assistance. Rather the primary judge proceeded from a bare recital of the evidence to an examination of what the appellant could have done in the event that the pits were incorrectly placed. His Honour then determined that there were a number of alternative courses available to the appellant rather than to seek to move the pits himself and concluded that it was the appellant's conduct which caused his injury rather than any act or omission of the respondent. 13 The appellant complains that none of the actions the primary judge determined he could have taken to avoid the injury he suffered was put to him as being feasible alternatives to the course he adopted. The appellant also complains that the primary judge made no finding about his request to the fork-lift driver but rather concluded, without giving reasons, that there was "no evidence that the respondent refused his request". The appellant submits that this was incorrect and that his evidence was to the effect that his request had been refused. 14 I interpolate that the substance of this submission appears to be based on the premises that the appellant's request to the fork-lift driver had been heard and that the lack of response constituted an implied refusal. 15 The appellant noted that the only evidence before the primary judge that the pits had been placed in the wrong position was his and that as his Honour had not rejected him as to matters of credit it must be assumed that his evidence should be accepted. The appellant complained that it was incumbent upon the primary judge to determine the question of whether the wrongful placement of the pits amounted to negligence and that his Honour's failure to deal with this issue constituted an appellable error justifying the entry of a verdict and judgment for the appellant in such amount as may be assessed by this Court or that the proceedings should be remitted to the District Court for re-hearing. 16 The appellant relied upon his evidence of his request to the fork-lift driver. That included an exchange in cross-examination where the appellant asserted that he was sure that the fork-lift driver heard him "but he (the fork-lift driver) was very busy doing whatever he was doing". The appellant noted that the primary judge did not deal with this evidence and that it was not apparent from his Honour's reasons whether he accepted or rejected it and if either, why he did so. 17 Again, insofar as the primary judge concluded in paragraph 34 to which I have already referred that there was "no need" for the appellant to change the position of the pits manually the appellant contended that it was not apparent whether the primary judge was accepting that the pits were placed in the wrong position or rather had concluded that the appellant had moved or tried to move the pits for convenience rather than safety. Again, the appellant complained that the primary judge's reasons did not disclose his findings of fact, let alone the reasons by which they had been reached. 18 The respondent appeared to assert in its written submissions that the primary judge had not erred in failing to find in favour of the appellant on the basis of his allegation that it had failed to load the concrete pits correctly because the appellant's evidence as to why he had tried to move the pit was inconsistent. 19 In argument today Mr Stewart submitted that the primary judge had, albeit obliquely, rejected the appellant's opinion that the pits were incorrectly placed. In its written submissions the respondent also relied upon the fact that it had not been put to the respondent's employees that loading the pit in the manner described by the appellant would be dangerous. Secondly, the respondent appeared to accept that the primary judge had failed to find that the respondent's employees had refused to reposition the concrete pit but asserted that that was not an error, both on the basis that there was no evidence that the fork-lift driver had refused any such request and secondly that the primary judge had not been satisfied that that request had been heard. 20 It is unnecessary to deal with the appellant's submissions concerning contributory negligence and damages in my view because the appellant is entitled to succeed on the basis the primary judge failed in his obligation to give adequate reasons. It is sufficient to refer to Justice Meagher's statement in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 443 concerning the content of an adequate statement of reasons. 21 While reasons need not be lengthy or elaborate the judge should refer to relevant evidence, set out any material findings of fact and any conclusions or ultimate findings of fact reached and provide reasons for making the relevant findings of fact and conclusions and reasons in applying the law to the facts found. In my view the primary judge's reasons fell lamentably short of this standard. 22 The respondent accepted that it was open to the primary judge to accept or reject the appellant's version that the concrete pits had been incorrectly placed. In such circumstances it was essential that his Honour explain why, if that was the case, he accepted or rejected the appellant's version. His Honour undertook no analysis of the case as presented by the appellant or indeed the respondent. In my view he made no finding as to whether or not he accepted the appellant's case that the pits had been incorrectly placed on the utility, nor did he give any reasons for his conclusion that there was no evidence that the defendant refused his request. 23 As the appellant submitted, there was evidence from which it could be inferred that the respondent's employee heard the defendant's request but continued with his tasks. That could ground an inference of refusal. Further, the primary judge did not deal with the issue of breach of issue. He simply ignored that issue and proceeded straight to determination of causation. The failure to deal with the issue of breach of duty would be sufficient in my view to demonstrate an appellable error. 24 In addition in the absence of express findings of fact as to the circumstances in which the appellant was injured it was not possible in my view for the primary judge to reach the conclusion that the appellant's injury had been caused by his own action rather than by any act or omission by the respondent. Causation is essentially an issue of fact, March v Stramare Pty Limited (1991) 171 CLR 506, and in the absence of findings of fact as to the parties' respective contributions to the appellant's injury it was in my view impossible for the primary judge to determine the issue of causation in the respondent's favour. 25 Accordingly in my view the appeal should be upheld. 26 I do not think that this is an appropriate case for this Court to decide but rather it should be remitted to the District Court for re-hearing. I propose the following orders. 1. Appeal allowed. 2. Set aside the verdict, judgment and orders made by the primary judge. 3. Order that the matter be remitted to the District Court for re-hearing. 4. Order the respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951 (NSW) if so entitled. 27 BEAZLEY JA: I agree. 28 IPP JA: I agree. 29 BEAZLEY JA: The orders of the Court are those proposed by Justice McColl. We thank both counsel for their assistance. ********** 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.