Arnold v Tilecorp Pty Ltd [2013] QCA 211

SUPREME COURT OF QUEENSLAND CITATION: Arnold v Tilecorp Pty Ltd [2013] QCA 211 PARTIES: DAVID BRUCE ARNOLD (appellant) v TILECORP PTY LTD ACN 010 868 943 (respondent) FILE NO/S: Appeal No 10477 of 2012 SC No 4900 of 2010 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 2 August 2013 DELIVERED AT: Brisbane HEARING DATE: 1 May 2013 JUDGES: Muir JA, Philippides and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed with costs. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – GENERALLY – where appellant claims he injured his back lifting a box of tiles from a pallet over a balustrade – whether an event occurred at the work site on the day of the injury – whether the trial judge erred in failing to consider all scenarios available on the evidence – whether the trial judge failed to evaluate the evidence available to support the second “balustrade hypothesis” Suvaal v Cessnock City Council (2003) 77 ALJR 1449; (2003) 200 ALR 1; [2003] HCA 41, cited COUNSEL: R A I Myers with B Munro for the appellant A S Mellick for the respondent SOLICITORS: Shine Lawyers for the appellant Gadens Lawyers for the respondent [1] MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Philippides J. -- 1 of 13 -- 2 PHILIPPIDES J: Background [2] The appellant, David Bruce Arnold, appeals against the decision of the trial judge dismissing his claim for damages for personal injury against his employer, the respondent, Tilecorp Pty Ltd. [3] The appellant‟s case was that on 26 May 2009, while working as a tiler for the respondent at the Robina Town Centre, he injured his back lifting a box of tiles from a pallet. At that time the appellant and others were laying tiles on an area referred to as the Promenade, which was described as a large public area about 240 square metres in area designed to accommodate seating for cafes abutting the Promenade and for general access to the Centre. It had a sweeping curved edge along which a wide ramp was placed to provide access to and egress from the Promenade. [4] At the trial, on the issue of liability the appellant gave evidence and called Mr O‟Sullivan (an ergonomist), while the respondent called Harry Himberg (a supervisor), Antony Blake (another supervisor), Clinton Patmore (a tiler also working on the Promenade) and Heath Mills (a labourer and safety officer). The decision of the trial judge [5] The broad description of the events in question, as described as follows by the trial judge, was not in dispute. “[3] By 26 May the [appellant] had been employed on the site for about four weeks. He had been working on various jobs, but was assigned to the Promenade when wet weather prevented work on other areas. He said that he was injured on the second day of working on the Promenade. Witnesses called for the [respondent] said he had been there for at least four days, but little turns on that. [4] There were two types of tiles being laid – grey border tiles and black in-fill tiles. On 26 May the [appellant] was laying the black tiles. Each of those tiles was 600 millimetres x 300 millimetres x 12 millimetres. They were provided in boxes weighing about 25 kilograms. A pallet of each colour of tiles had been placed on the Promenade for use by the tilers. There were two other tilers also working on the Promenade. [5] The [appellant] said that on the morning of 26 May he noticed that the supply of black tiles was running low and asked a supervisor, Harry Himberg, to obtain more. He says that the tiles were delivered by being placed on the ramp.” [6] The trial judge noted that there were significant differences as to the detail of the events in question. The appellant’s evidence [7] The trial judge summarised the evidence given by the appellant as follows: “[7] In evidence in chief the [appellant] was asked to show on a plan of the area being tiled where certain items were placed. -- 2 of 13 -- 3 For 25 May (Ex 91), he drew a sketch showing that there was one pallet of black tiles and one pallet of grey tiles at what was accepted to be the northern end of the Promenade. He showed that there was, at the northern and southern extremes of the area being tiled, white tape which was stretched across both ends as a means of alerting people that they should not walk in that area. Between the Promenade and the ramp, he identified what he called a „scaffold barrier‟. [8] The [appellant] was then asked to insert onto a plan of the same area the details for 26 May (Ex 112). Those details differ from what he said was present on the preceding day in two important respects. First, there was not a pallet of black tiles on the Promenade. Secondly, a cherry picker had been parked at the southern end of the ramp which was the end closest to where the ramp met the level portion of the Promenade. Around the cherry picker was a barricade made up of star pickets from which was suspended an orange plastic mesh. That barricade extended across the ramp from near the top of the ramp to about half way down the ramp. The [appellant‟s] evidence on this point is important. He said: „…I noticed the Manitou, which is like a forklift type truck thing, coming through an area that was barricaded off, adjacent to the ramp – this was barricaded off because there was a cherry picker type work platform there, your Honour, doing work overhead on the roof. The guy driving the Manitou – the barrier was only made of star pickets and orange and plastic mesh. He pushed down the star pickets so that the barrier collapsed, drove the Manitou through and forked the pallet of black tiles up onto the ramp.‟ [9] From that evidence and from the diagram made by the [appellant], it must be the [appellant‟s] evidence that the person delivering the tiles deliberately put them into an area inside the cherry picker barricade. That area later became called an „exclusion zone‟ which various witnesses referred to as being an area generally created to prevent people from getting near machinery which might create a danger. [10] The [appellant] did not see any other person obtain any tiles from the pallet which he said was placed on the ramp. He said that he saw one of the other tilers go over to the pallet but, apart from finding a Stanley knife there later, could only assume that somebody had cut the straps on the tiles. He was asked what he did and he gave this answer: „Well, I just thought well, how did he get the tiles? I thought he must have just reached over the rail and 1 AB 224. 2 AB 226. -- 3 of 13 -- 4 grabbed them, so I proceeded in that manner and did the same thing and retrieved a box of tiles.‟ [11] The rail to which the [appellant] was referring was a rail which he said was constructed along the edge of the Promenade and was made up of scaffolding poles and tubes. He said that the top of this scaffold was about 750 mm above the surface of the Promenade. He recalled that along the length of that barricade was hung orange plastic mesh. [12] He said that at about 7.30am he went over to the pallet on the ramp, slid a box of tiles across the top of the pallet so he could get his hands underneath it and lifted it in a manner where he „sort of swung … and lifted it up over the rail‟. He repeated this manoeuvre at about 10.30am. At 12 o‟clock he had to retrieve another box. He said: „I did the same thing. I reached over, slid the box across, lifted the box and as I lifted box [sic] I felt something in my back go pop, and a pain went down my right leg, so I just put the box down and I just stood there like, waiting for this pain to subside.‟ [13] He waited some 10 or 15 minutes until he realised that the pain was not going away. He then collected his tools and walked to the Bovis Lend Lease safety office. He was asked by the safety officer what happened and he told him that he had been lifting a box of tiles. [14] The work which the [appellant] said was being done by the cherry picker was described as being with respect to some mesh which appears above the roof of the Promenade and which appears to contain some form of advertising or notice boards. It is clearly shown in Ex 8.3” The evidence of the respondent’s witnesses [8] The trial judge noted that the respondent‟s witnesses gave evidence which was contrary to that of the appellant in the following respects: (a) There was no white tape at the northern and southern ends. Rather, there was plastic orange mesh set up to prevent people inadvertently walking across the tiles. (b) There was no form of scaffolding barricade along the edge of the Promenade. Rather, a rail supported by steel stanchions (as shown in Ex 8) was already in place save that the steel cabling had not been tightened. (c) There was no cherry picker in place and that there was no form of exclusion zone. (d) Further, rather than the pallet of tiles being towards the southern end of the ramp, the respondent‟s witnesses said that the pallet was further along the ramp as it descended towards the northern end. 3 AB 223. -- 4 of 13 -- 5 The importance of the existence of the exclusion zone [9] The trial judge considered that the presence or not of the exclusion zone surrounding the cherry picker was of critical importance to the appellant‟s case. This was because, as the trial judge observed at [16], the appellant “said that the only thing that was preventing him from walking to the pallet on the ramp and using safe manual handling techniques to retrieve a box of tiles was the exclusion zone around and near the cherry picker”. Matters of credit [10] The trial judge noted at [17] that the appellant did not call any other person to give evidence about the existence of the cherry picker or any exclusion zone (neither from Bovis Lend Lease nor any other contractor on the site). Nor did he call any evidence concerning the existence of the scaffolding barricade around the Promenade or when it was replaced by the final rail and stanchion set up. Further, contrary to the appellant‟s evidence, there was the evidence of Mr Himberg, Mr Blake and Mr Patmore, all to the effect that the steel rail and stanchion set up was in place, and that there was neither a cherry picker nor an exclusion zone there at the relevant time. And although the trial judge noted that merely being outnumbered by other witnesses did not, of itself, determine whether or not a version given by a witness should be accepted, his Honour considered it was a factor to take into account. [11] Given the conflicting evidence, the trial judge had particular regard to the other issues of credit upon which a decision could be made as to who should be accepted on these critical points of difference. His Honour noted at [19] the inconsistent approach to a claim for chronic adjustment disorder which was finally abandoned. His Honour noted at [21] the appellant‟s conviction in 2000 for armed robbery4 (for which he ultimately served the entire four year period of his sentence because of twice breaching his release conditions by using drugs or alcohol). His Honour observed that, while such a conviction did not, of itself, mean that the appellant was a person who should not be believed, an act of violence of that nature was something to be taken into account in assessing his credit. In addition, his Honour noted at [22] that the appellant was involved in what the appellant called “a domestic argument with a woman” in 2006, resulting in his being convicted for an offence (which he did not identify) and which attracted a 12 month suspended sentence, requiring the appellant to attend counselling sessions. [12] Additionally, his Honour made the following observations as to the appellant‟s pleading concerning the barricade: “[23] As to the issue of the various barricades of which the [appellant] spoke, it appears that the first time these were made public was in the statement of claim filed on 13 May 2010. In that document it is pleaded that „the work area was bordered along its entire length by a balustrade … which was constructed of metal supports with horizontal wires running its length‟. That is consistent with the [respondent‟s] evidence but the allegation was gradually amended through the various versions of the statement of 4 The appellant was not actually armed but had his finger in his shirt and was using illicit drugs at the time. -- 5 of 13 -- 6 claim until it was finally alleged that the Promenade was „bordered by a barricade consisting of metal scaffolding poles comprised of vertical poles connected via brackets to a horizontal pole attached near their top‟ and with orange mesh hanging from the top horizontal scaffolding pole. It was alleged, and the [appellant] gave evidence, that the horizontal pole was approximately 750 mm higher than the floor level of the Promenade.” [13] The trial judge also noted at [24] that, notwithstanding the appellant‟s evidence that he was a very competent and experienced tiler and that he knew about the requirements for safe manual handling, his explanation for doing what he did, apart from his evidence about the existence of the two types of barricade, was that he thought that someone else must have retrieved tiles in the manner in which he said he retrieved tiles. The appellant was very reluctant to accept that he could have sought direction or assistance from a supervisor and, in cross-examination, he initially maintained that there were no supervisors around, before eventually accepting that there would possibly have been someone within about 200 metres that he could have spoken to. On that matter also, the trial judge accepted the evidence of the two supervisors that they were constantly moving about the worksite and that they would have moved through the area in which the appellant was working on a number of occasions during that particular morning. [14] The trial judge made the following observations about the injury as reported by the appellant: “[25] For a person who claimed that he was an experienced tiler and familiar with safe manual handling techniques, he did not, when he reported the injury, give any details other than that he was picking up a box of tiles. He gave no explanation to the safety officer about where the pallet was or that there was an exclusion zone or that the ramp was barricaded off. He agreed that somebody from the [respondent‟s] office had rung him the following day and that he did not say anything to that person about the barricade or cherry picker.” [15] In respect of the evidence given by the appellant concerning his discussions with Mr O‟Sullivan the trial judge noted: “[26] The [appellant] was focussed when giving his evidence in chief but became overly evasive when answering cross- examination about a few issues. The [appellant] called Mr Justin O‟Sullivan as an expert ergonomist to give evidence about the dangers of lifting as the [appellant] said he did and to detail how the [respondent] could have taken steps to avoid the situation described by the [appellant]. He provided two reports. The first was only in February this year when he went to the site with the [appellant]. He again visited the site with the [appellant] in August. The [appellant] claimed to be unable to remember what he told Mr O‟Sullivan on the first occasion and at one stage claimed not to recall the second meeting at all. The [appellant] gave different versions of where the pallet was to Mr O‟Sullivan -- 6 of 13 -- 7 in those two meetings. This, along with other variations of the [appellant‟s] story over time, was explained by Mr Myer as being nothing more than that the [appellant‟s] recollection improved. I accept that recollections can become better. In this case, however, based on the [appellant‟s] answers and reaction to questions, I formed the view that the [appellant] was not being frank about his recollection of his discussions with Mr O‟Sullivan.” [16] In respect of the inconsistencies in the evidence given on behalf of the respondent, his Honour said: “[27] … It was said against the [respondent‟s] witnesses that they were uncertain as to their recollection and that they had not been required to recall the events of that day until some years after the event. That is explained, at least in part, by the fact that no details of the alleged cause of the injury were provided until this action was commenced. There were inconsistencies in the evidence given by the two supervisors and the tiler called by the [respondent]. That is, in part, no doubt due to the lapse of time since the event and that fact that they were not required to recall the events until some considerable time after 26 May.” [17] In ultimately preferring the evidence of the respondent‟s witnesses, the trial judge made the following observations, in respect of which no issue is taken by the appellant: “[28] Importantly, the evidence of the [respondent‟s] witnesses was relevantly consistent as to the non-existence of an exclusion zone, that a cherry picker was not in place, and that the rail and stanchions which appear in Ex 8 were in place on the relevant day. On those issues they were firm in their recollection. They were also present at that site both before and after the accident for some time. It is also relevant, as one of the witnesses pointed out, to observe that if there was work being done above the Promenade as claimed by the [appellant], then the exclusion zone would have necessarily carried over and included that part of the Promenade which was being tiled.” The critical findings of the trial judge [18] Having taken into account a wide range of matters going to credit, the trial judge concluded at [29] that the appellant‟s version of events was not to be relied upon. No challenge is made in respect of that finding, nor the specific findings made by the trial judge that he did not accept that there was a cherry picker in place, or that there was an exclusion zone, or that the rail and stanchions were not in place at the relevant time. [19] Bearing those matters in mind, the trial judge made the following observations which are at the heart of the grounds of appeal: “[30] These findings are fatal to the [appellant‟s] case for two reasons. First, the incident he described could not have -- 7 of 13 -- 8 occurred because the rail and stanchions were in place. The existence or otherwise of the 750 mm high scaffolding barricade is vital for the [appellant‟s] case because he accepted that if the rail as shown in Ex 8 was in place on 26 May then as he said „… you would not be able to lean over [and] grab a box of tiles‟. [31] Mr Myers sought to argue that the mere presence of the pallet on the ramp would constitute a breach of the [respondent‟s] duty to the [appellant] on the basis that it was well known that workers would take the „easy‟ way of obtaining the tiles by leaning over the „barricade‟ to take them. In the light of the finding that the full height rail was in place and the [appellant‟s] evidence that it would prevent such an action, this submission must be dismissed. [32] Secondly, the existence of the „exclusion zone‟ is a key element in the [appellant‟s] case. In cross-examination he gave this evidence: „If the barricade that you say was there had not been there, what would you have done?-- If it wasn‟t there? Yes?-- I would have gotten closer to the pallet and lifted the box of tiles as close to my body as I could. All right. And you would have applied the safe manual handling techniques that you were aware of?-- Correct. So you wouldn‟t have leaned over and down to retrieve a box of tiles?-- No. You would have walked to the pallet?-- Yes.‟ [33] In other words, as there was nothing to prevent him from walking to the pallet, he could have done so and could have used a safe lifting technique. [34] The [appellant‟s] case depended upon the presence of: (a) the barricade as he described it; and (b) the exclusion zone. In their absence, I find that the [appellant] did not injure his back in manner alleged and that he has not demonstrated any negligence on the part of the [respondent]. The claim is dismissed.” Grounds of appeal [20] The appellant appeals against the judgment on the following grounds: (a) His Honour‟s findings were against the evidence and the weight of the evidence. (b) His Honour was in error in finding that it was impossible for the appellant to retrieve a box of tiles by bending over the balustrade, in the light of the evidence of the ergonomist, Mr O‟Sullivan, which was not challenged in that respect. -- 8 of 13 -- 9 (c) His Honour was in error in dismissing the appellant‟s action based upon his finding that there was nothing to prevent the appellant from accessing the pallet via the Promenade and ramp when there had been no instruction given to the appellant that that system of working was to be implemented. (d) His Honour should have found that at or about 7.00 am on 26 May 2009 a pallet of tiles was deposited on the Promenade ramp at a point approximately one quarter of the ramp length from the intersection of the ramp with the Promenade. (e) His Honour should have found that the appellant was given no or no adequate instruction that he was not to access the tiles on the ramp by leaning over the balustrade that was located on the edge of the Promenade. (f) His Honour should have found that at approximately 12.00 midday on 26 May 2009 the appellant leaned over the balustrade and lifted a box of tiles over the balustrade and, in so doing, suffered his back injury. (g) His Honour should have found that the respondent breached its duty of care to the appellant and breached its contract of employment with him by: (i) failing to provide a safe system of work; (ii) failing to identify the relevant task as a “problem task” necessitating the institution of an adequate risk management regime; (iii) failing to implement design and/or administrative controls to facilitate the elimination or minimisation of the risk to which the appellant was exposed whilst performing his work tasks; (iv) failing to give adequate training and instructions as to how the appellant‟s tasks associated with his work were to be accomplished; (v) failing to provide any or any adequate supervision; and (vi) failing to implement and enforce safe work procedures. Notice of contention [21] The respondent submitted that, if it is found that the appellant retrieved the box of tiles by bending over the balustrade, the trial judge could have found that the appellant caused or contributed to any injury, as he was aware of safe manual handling techniques but failed to apply them. The respondent further submitted that contributory negligence should be assessed at 35 per cent. The appellant’s submissions on liability [22] The grounds of appeal were distilled in the appellant‟s submissions under the following broad propositions: (a) An event ought to have been found to have occurred at the work site on 26 May 2009 by the trial judge. (b) The case was one where there were two hypotheses agitated about the cause of injury and the trial judge failed to consider all scenarios available on the evidence concerning the “balustrade hypothesis”. (c) The trial judge failed to evaluate the evidence available to support the second “balustrade hypothesis”. -- 9 of 13 -- 10 An event ought to be found to have occurred at the work site on 26 May 2009 [23] The appellant accepted that matters of credit were clearly relevant in the present case and, as already mentioned, did not challenge the trial judge‟s adverse credit findings against the appellant. However, it was submitted that, notwithstanding those adverse findings, it ought to have been accepted that an event causing injury occurred at the construction site on 26 May 2009. [24] The appellant pointed to evidence that (in accordance with the general instructions given by Mr Mills, the respondent‟s safety representative) he reported an incident to Mark Hurst, the site safety officer at the Bovis Lend Lease site office on 26 May 2009, shortly after it was said to have occurred,5 which was not contested by the respondent. The appellant accepted the reported details of the incident were as recorded in the Register of Injuries Occurrence Report:6 “Bent over to pick up tiles (25 kg) and felt back pop, pain in lower right back and right leg.” The appellant also referred to the description given by the appellant to Mr Hurst that he was “lifting a box of tiles”7 and his telling two colleagues on his way to the Bovis Lend Lease site office that he was leaving the site because he had hurt his back,8 neither of whom were called to refute this account. Reference was also made to the report of the injury which occurred later on 26 May 2009 when the appellant attended at the Pindara Hospital and a history was noted of “lifting tile box @ work”9 and a similar history provided to medico legal and treating specialists. [25] It was thus submitted that on the basis of the strength of the contemporaneous evidence and its consistency thereafter, his Honour ought to have commenced the liability determination with a finding that an incident, involving a lifting event, occurred at the worksite on 26 May 2009. It was submitted that once his Honour was so satisfied, “he was obliged to consider all of the evidence available to draw conclusions as to the most likely scenario.” [26] It may be accepted that the trial judge proceeded on the basis that an injury occurred on the worksite on 26 May 2009, given his Honour‟s reasons on quantum, but that was not the central issue before his Honour, but rather, as his Honour recognised at [34], whether the appellant “injure[d] his back in manner alleged” and whether he had demonstrated any negligence on the part of the respondent. As the trial judge observed, when the appellant reported the injury on 26 May 2009, he gave no details other than that he was picking up a box of tiles and made no mention of an exclusion zone or that the ramp was barricaded. Nor did he mention the barricade or cherry picker the following day when contacted. Having rejected that an incident occurred as pleaded and described by the appellant, the trial judge was not required to speculate as to what did occur. In that regard, I note that this was a case, as his Honour noted at [41] when dealing with quantum, where there was medical evidence that the appellant suffered from degeneration of the spine such that back pain could have been triggered by a lifting event as described by the appellant, or by a trivial insult, or could have been of spontaneous onset. 5 AB 135/49-57. 6 AB 227, Exhibit 12. 7 AB 28/25-50. 8 AB 29/20-40. 9 AB 215, Exhibit 7. -- 10 of 13 -- 11 Two hypotheses agitated – the trial judge failed to consider all scenarios available on the evidence [27] That brings me to the central tenet of the appellant‟s submissions. It was submitted by the appellant that this was a case where there were two “hypotheses” agitated about the cause of the injury. It was said that the first hypothesis involved the appellant‟s recollection that he leant over a temporary barricade at a height of approximately 750 mm. The other was said to involve the respondent‟s evidence that no such barricade existed but that a balustrade was in situ with a top rail at about 1000 mm (but implicitly depended on the premise that the appellant leant over such a barrier). [28] It was contended that it was not “fatal” to the appellant‟s case that the hypothesis offered by him was not the one chosen. In that regard, it was argued that where an alternative case is open on the pleadings, the trier of fact is entitled to consider the alternative case and to draw inferences from the alternative facts found, so long as there was no procedural unfairness in doing so, and in this case the trial judge was obliged to do so. [29] In making that submission, reliance was placed on Suvaal v Cessnock City Council (2003) 200 ALR 1; [2003] HCA 41. In Suvaal, the High Court, it was said, dealt with evidentiary matters to be considered where a plaintiff has not proved the only hypothesis advanced by him and no other hypothesis consistent with an incident is agitated. The appellant submitted that the ratio of the decision derives from the majority who held that, in such a case, it was not permissible for a court to advance a new hypothesis not previously pleaded and dealt with in the course of the evidence. However, the appellant relied on the obiter dicta in the minority judgment of McHugh and Kirby JJ at [81] who expressed the view that once the case as advanced by the [appellant] had been rejected as unproved, it remained proper “to evaluate competing hypotheses, so long as [the judge] remained within the evidence, addressed the issues litigated and acted with procedural fairness to all the parties”: (see also [116]). It was said that while the majority, Gleeson CJ, Callinan and Heydon JJ, dismissed the appeal on the facts of the case, in so doing, they did not disagree with the general statement of legal principle enunciated by the minority. [30] In the present case, it was submitted that the height and nature of the barrier was always a live issue; the respondent pleaded that the edge of the terrace was not bordered by a temporary barricade, but rather by a permanent balustrade (amended defence para 8A) and that there was a “low likelihood that the [appellant] could have retrieved tiles in the manner alleged” (amended defence para 10A).10 [31] It was submitted that it was open to the trial judge in this instance to draw inferences and make deductions from the evidence of the appellant and of Mr O‟Sullivan which ought to have led to the proper conclusion that the appellant could have, and did, lean over the balustrade to access and lift a box of tiles at or near feet level. It was also said that, given the negative credit findings against the appellant, there was some irony in the fact that it was the appellant‟s own evidence upon which his Honour relied to base his conclusion that the incident, as described by the appellant, was not possible. But of course the fact that the trial judge made adverse credit findings did not preclude the appellant‟s concessions being accepted by the trial judge. 10 AB 296. -- 11 of 13 -- 12 [32] It was argued by the appellant that, “as the Judgment literally reads, the appellant‟s case failed, not for issues of credit per se, but because his Honour declined to accept his evidence in the material two respects stated, resulting in the conclusion that the hypothesis presented by the appellant became a physical impossibility.” The appellant‟s complaint was that there was error in simply proceeding on the basis of the appellant‟s rejection of the possibility that he could have reached over the higher balustrade, and ceasing the enquiry there. His Honour “ought to have gone further to consider all of the evidence and the further factual theories which were available” and ought to have considered the hypothesis that the appellant in fact leaned over a balustrade at a height of 1000 mm and was injured in that way. In particular, he should have done so in the light of Mr O‟Sullivan‟s evidence. [33] There are two difficulties with these submissions. The first is that the submissions proceed on the premise that a finding should have been made that the appellant was injured when leaning over a barrier (whether as described by the appellant or the respondent‟s witnesses). But the trial judge was clearly not prepared to make that finding. His Honour rejected the appellant‟s version of the incident and expressly stated that his version could not be relied upon. The presence of the barrier and the exclusion zone as described by the appellant were essential aspects of the version given by the appellant that he was injured when leaning over a barricade to lift the tiles. They were so identified by the appellant in his concessions. In rejecting the appellant‟s version his Honour considered it important not only that the appellant did not consider it possible to retrieve tiles over the higher balustrade but also that the appellant maintained that it was because of the exclusion zone (which the trial judge did not accept was present) that he was obliged to perform the movement of bending over to retrieve the tiles. [34] Secondly, the submissions are predicated on the assertion that the appellant‟s case failed because an alternative hypothesis as to the nature and height of the barrier, which was available on the evidence, was not evaluated, rather than his case failed because of adverse credit findings. Counsel conceded at trial that it was open to the trial judge to take the approach that, if the appellant‟s version of the events involving the existence of an exclusion zone was not accepted, other aspects might also be rejected, including that the injury occurred when he leant over. That concession was made in the following exchange during the address by the appellant‟s counsel:11 “HIS HONOUR: Yes. I‟m still wanting to hear from you about the – the key to this case, as I see it, is whether or not there was an exclusion zone. MR MYERS: Yes. Well, I appreciate that and ultimately I‟ll be submitting that your Honour would find that there was, but may I say, with respect, it shouldn‟t be the key. The key should be whether this man stretched over the barricade, as he said he did, and picked up the box. HIS HONOUR: Well, if I find there‟s no exclusion zone, why would I accept his evidence about anything else? MR MYERS: Because, your Honour, what he did, it was a reasonably foreseeable risk. 11 AB 148-149. -- 12 of 13 -- 13 HIS HONOUR: No, no, sorry, why should I accept his evidence that he did that, that he lent over? If he has said that there was an exclusion zone, that Manitou came in and drove over the orange netting----- MR MYERS: Yes. HIS HONOUR: -----and then left, if I find that didn't occur, why would I accept him on anything else? MR MYERS: Well, your Honour, might I say that would be an exceptionally harsh test. I can‟t say that your Honour couldn‟t, … I‟ve no doubt your Honour could perhaps do it. Your Honour is here to judge the matter and your Honour is the sole judge of facts, but it would be a very, very harsh test. ...” [35] The concession made at trial was also made in argument in this Court. It is clear, from his Honour‟s consideration of the factors going to credibility, including the internal inconsistencies in the appellant‟s evidence arising from the key concessions he made, that the trial judge was not prepared to accept his evidence concerning how he came to be injured. It is implicit in the rejection of the appellant‟s version that the trial judge was not prepared to proceed on the premise that he was injured by leaning over a barrier of whatever nature. Thus while the appellant sought to present this case as one of alternative hypotheses, in truth the case failed on the basis of adverse credibility findings. Evaluation of the evidence available to support the second “balustrade hypothesis” [36] The appellant complained that Mr O‟Sullivan‟s report and his oral evidence as to the feasibility of retrieving tiles in the manner described by the appellant, even on the basis that the higher permanent balustrade was in place, ought to have been considered by the trial judge. But as the respondent submitted, that overlooked the fact that, given that Mr O‟Sullivan‟s evidence did not take into account the differing versions as to where on the ramp the pallet was positioned (the appellant placing the pallet higher up the ramp than the respondent‟s witnesses), Mr O‟Sullivan‟s evidence did not in fact advance matters. And in any event, since that the trial judge clearly proceeded on the basis that he was unable to accept the appellant‟s version of injuring his back when leaning over a barrier to retrieve tiles, there was no call to consider Mr O‟Sullivan‟s evidence. Disposition [37] No error has been demonstrated to have been made by the trial judge in dismissing the appellant‟s claim. His Honour was entitled to find that there was nothing preventing the appellant from walking to the pallet and using a safe lifting technique, his Honour finding that the appellant was aware of the requirements for safe manual handling and no negligence by the respondent. [38] The appeal should be dismissed with costs. [39] ANN LYONS J: I agree with the reasons of Philippides J and with the order proposed. -- 13 of 13 --