Ferris v Allgas Energy Ltd [1999] QCA 494

SUPREME COURT OF QUEENSLAND CITATION: Ferris v Allgas Energy Ltd [1999] QCA 494 PARTIES: GARY HUGH FERRIS (Plaintiff/Respondent) v ALLGAS ENERGY LIMITED ACN 009 656 446 (Defendant/Appellant) FILE NO/S: Appeal No 10340 of 1998 DC No 1230 of 1997 DIVISION: Court of Appeal PROCEEDING: Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 3 December 1999 DELIVERED AT: Brisbane HEARING DATE: 1 September 1999 JUDGES: McMurdo P, Thomas JA, Chesterman J (diss) ORDER: APPEAL AS TO QUANTUM ALLOWED. JUDGMENT IS VARIED BY REDUCING THE AMOUNT TO $166,813.55. THE APPEAL IS OTHERWISE DISMISSED. ORDER THAT THE RESPONDENT PAY TWO-THIRDS OF THE APPELLANT'S COSTS OF THE APPEAL TO BE ASSESSED. CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – mechanic's trades assistant injured knees at work – whether trial judge erred in finding that employee's injury was due to employer's failure to provide steps to exit the service pit – issue as to means of exiting arose at trial and pleadings amended – whether judge erred in weight given to employee's evidence – whether judge intervened unduly by asking questions of plaintiff – whether trial judge's assessment was glaringly improbable Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84, considered SRA (NSW) v Earthline Constructions Pty Ltd [1999] HCA 3; -- 1 of 31 -- 2 (1999) 73 ALJR 306, considered Rex v Hopper [1915] 2 KB 431, applied Workplace Health & Safety Act 1989, s 9 TORTS – NEGLIGENCE – PROOF OF NEGLIGENCE – WEIGHT AND CREDIBILITY OF EVIDENCE – whether judge erred in finding the employee's knee condition was asymptomatic and made symptomatic upon injury – whether too fragile a base of evidence to support judge's findings APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – DAMAGES EXCESSIVE – whether injury was merely a temporary aggravation of limited duration – whether work conditions prior to expiration of limitation period caused injury Nilon v Bezzina [1998] 2 QdR 420, distinguished Limitation of Actions Act 1974, s 31 DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – whether assessment of damages flawed due to failure to consider that the employee was at risk of developing symptoms in any event – whether quantum of damages for economic loss excessive COUNSEL: Mr P A Keane QC, with him Mr P O Land, for the appellant Mr S Di Carlo for the respondent SOLICITORS: Clayton Utz for the appellant Baker Johnson for the respondent [1] McMURDO P AND THOMAS JA: This is an appeal from a judgment in favour of the respondent in the District Court in a personal injuries action brought in negligence and alternatively as a breach of statutory duty by the respondent against his employer, the appellant, in respect of an incident which occurred on 18 August 1992. The finding of the primary judge that the appellant breached its duty of care to the respondent in failing to provide proper steps is challenged. The extent of the injuries which resulted from the incident on 18 August 1992 and the resulting quantum of past and future economic loss are also in issue. A detailed review of the evidence is required. The pleadings [2] The action commenced in the Supreme Court by writ of summons on 15 August 1995 only a few days before the expiry of the limitation period. In the statement of claim dated 18 April 1996 the respondent pleaded that he had been employed by the -- 2 of 31 -- 3 appellant from March 1989 to November 1992 as a mechanic/trades assistant and that he suffered personal injuries as a result of squatting in a pit servicing vehicles at garages owned by the appellant for, on average, three hours per day. [3] In an amended statement of claim dated 3 September 1997 the respondent pleaded that "On or about 18 August 1992, [the respondent], in the course of carrying out his duties, moved out from the pit underneath a motor vehicle, jarred and twisted his right leg" injuring his right knee; he then placed additional reliance on his left knee causing injury to it; as a result of "being required to work in the bay/pit servicing vehicles in the squatting bent knee position and the need to manoeuvre in this confined space during servicing and whilst exiting he suffered personal injury"; and that the appellant had failed to provide a safely designed bay/pit which would not require the respondent to manoeuvre in a manner likely to cause injury, pain or suffering. This pleading contained the first claim in relation to an incident on 18 August 1992 and was the first reference to the injury occurring whilst exiting the pit. [4] The action was remitted to the District Court and an amended plaint was filed on 23 October 1997. Although further amendments were made, none were relevant to the issues in this appeal; nor was the failure to provide steps in exiting the bay/pit pleaded. [5] During the trial the mode of exiting the pit became an issue. A further amended plaint was filed by leave on the third day of the trial as were particulars of the alleged breach. This pleading additionally claimed that the respondent was required by the appellant to enter and exit the pit and in the process of exiting jarred and twisted his right leg; the appellant had failed to take reasonable steps to provide a safely designed bay/pit which would not require the respondent to manoeuvre in a manner whilst in the pit or whilst entering and exiting the pit which was likely to cause injury. [6] There are a number of respects in which the litigation may be considered unsatisfactory. One of these was the failure of the respondent to pursue an application under s 31 of the Limitation of Actions Act 1974 so as to place in issue the appellant's liability for the consequences of the system at work under which the respondent was employed between March 1989 and 15 August 1992. This meant that when the trial commenced, on the face of the pleadings, the respondent's claim was effectively limited to the consequences of a defective system of work effectively over the last three days of his employment with the appellant. In due course when the issue of the manner of entry and exit to the pit was raised there does not appear to have been any objection on the part of the appellant to the inclusion of that issue in the litigation. Indeed the case was conducted in a way showing that this question was regarded as being in issue even before formal amendments were made to the plaint. No doubt the appellant was disadvantaged by lack of opportunity to obtain earlier statements from its witnesses on this issue. But that is how the litigation proceeded, and in the end the question is whether his Honour's factual findings on this important issue should stand. [7] Particulars were provided after the third day of hearing as follows: "1. Failing to provide any or any appropriate ladder or steps in the service pit; -- 3 of 31 -- 4 2. Further and in the alternative:- (a) Failing to affix steps to the pit so as to prevent their removal; (b) Failing to provide steps that were of such a weight and/or design that they could not be removed from the pit; (c) Ensuring that the ladder/steps or exit facility remained in place at all times; (d) Failing to supervise the pit to ensure that the steps were not removed from the service pit; (e) Causing the Plaintiff to work in a crouched position knowing that ultimately he would be required to stand straight and move out of a pit where a ladder/step was not available or in the alternative, not affixed. 3. Failing to instruct the Plaintiff not to jump into the pit; 4. Failing to supervise the pit to ensure that no workers jumped into same; 5. Failing to provide safety instructions for the proper and safe use of the service pit; 6. Failing to provide instruction as to a safe method of egress from the service pit; 7. Failing to provide a pit of sufficient depth to enable the Plaintiff to service vehicles without the requirement to crouch; 8. Failing to provide an hydraulic hoist to assist with the operation of the maintenance depot." The facts (a) The respondent's evidence [8] The respondent, who was 5 feet 4 inches tall, was 29 at the time of the accident. From 8 May 1989, he was employed by the appellant as a trades assistant helping mechanics in the servicing of cars, trucks and vans. [9] Vehicles were driven over a one metre deep pit; he would jump into the pit; whilst servicing the vehicles he would kneel on one or other knee and move by squatting like a duck waddling; "it was just an uncomfortable position … climbing in and out. Being down, squatting down all the time"; after he got out of the pit he felt uncomfortable. He worked underneath as many as six vehicles a day for 20 or 25 minutes per vehicle but spent about 40 minutes per vehicle in the pit. [10] On 18 August 1992 he serviced a vehicle which was parked over the pit and as he was climbing out of the pit he twisted his knee; he came up to the wall, put his left leg up and twisted his right leg which was still on the ground; he felt pain and cracking in the right leg for the rest of the day. The primary judge then questioned the respondent: "Did the pit have any ladder or anything like that for you to step on to get out? – No. Just had sides -----? – Yeah. -- 4 of 31 -- 5 ----- and a bottom, and didn't have any railings to help you step out or a block step to make it that you would step on the block step and then step out? – No. Just climbed straight out." [11] During cross examination the respondent agreed there was a wooden stool in the pit although he never used it, adding that it was wobbly; he was not questioned about wooden steps. In answer to questions from the primary judge the respondent confirmed that the injury occurred whilst he was getting out of the pit and was not associated with crouching under a vehicle. [12] The appellant's counsel noted that nothing in the pleadings particularised the means of entering or exiting the pit to inform the appellant of its alleged negligence. However, from this time on, this was an issue in the trial. Amendments to the pleadings and the provision of particulars were foreshadowed by Mr Di Carlo, who appeared for the respondent here and at trial, 1 and were later effected. The appellant's counsel did not object to the amendments nor request an adjournment. [13] The respondent said that there was no set of stairs in the pit; had there been, he would not have been injured; after he had injured his knee and about a month before he left his employment with the appellant he located a set of portable metal stairs with checker plates on the treads and placed them in the pit because he found it easier to get out with his injured knee; a photograph of those stairs was tendered. Had they been in the pit on 18 August he would have been able to use them to exit the pit and would not have been injured. He thought he found the metal stairs at the small LP storage tanks across the road where they were used to check the valves. He could not really remember the wobbly stool which was just an old piece of wood. He jumped in and out of the pit and was never instructed not to by his superiors. [14] Prior to this incident, he complained to work mates about getting in and out of the pit but not to his supervisors; he had had no pain in his knees or legs although during the preceding four months he experienced pain-free clicking in his knees when exiting the pit. [15] After this incident his knee was painful and swelled but he continued working; the pain and swelling continued overnight; he returned to work the next morning and reported it to his foreman, Ray Baines, and completed the appropriate Workers Compensation Board forms in which he described his injury as a strain to the right knee sustained in "climbing out of pit from under vehicle". He was off work for three weeks and returned when the swelling had settled but before he was fully fit; when questioned by his counsel and by the primary judge the respondent did not claim to have received any domestic assistance during this period off work. [16] At work the pain and clicking in his knee continued; he found the work in the pit caused him pain in the knees; he got sick of climbing in and out of the pit and he looked for another job; three or four weeks after the accident at the end of October 1992 he commenced work with Moggill Constructions. 1 Parties may amend pleadings, with leave, at any time up until verdict and whether an amendment should be granted is a matter for the discretion of the trial judge assessing where justice lies: Ketteman v Hansel Properties Ltd [1987] AC 189, 220. -- 5 of 31 -- 6 [17] The heavy labouring work at Moggill Constructions made his knee painful and the swelling became worse; his wage was much higher than when he worked for the appellant but the work and rates were casual; he was laid off for one week and was to return for one week, but his right knee was too swollen and painful to continue and he ceased work. [18] Over the ensuing months the pain in his right knee made him limp; he consulted a number of doctors and was treated by orthopaedic surgeon Dr Morris who performed an arthroscopy on his right knee in February 1993. After a few months of painful recuperation during which he protected his right knee by over-using his left knee, he was able to walk properly again. His left knee began to swell and become painful about a month after the arthroscopy on his right knee. [19] Despite further questioning by his counsel and the primary judge, the respondent's only evidence of domestic assistance was that he may have missed a one hour turn of mowing the lawns of his rented property. [20] The Workers Compensation Board refused to pay for an arthroscopy on his left knee; he received sickness benefits for a time and then progressed to New Start allowance whilst he attended the Commonwealth Rehabilitation Service for some months; he has sought employment but without success. [21] The respondent has a continuing interest in renovating and riding motor bikes; since the accident he has not been able to participate in this interest as much as he would have liked; he hopes to complete a course on motor cycles and motor mowers so that he can work in that field; he would need to purchase equipment to minimise lifting, stooping and squatting as outlined by occupational therapist, Mrs Lesley Stephenson, at a cost of about $6,000. Alternatively, he could work as a delivery driver. He is educated to second year high school in New Zealand; if he could afford it he would increase his strength by a supervised gym program, a graded endurance swimming program and physiotherapy. [22] The respondent's take home pay whilst employed by the appellant was $320 per week. But for his knees, it was submitted that he would have worked for the appellant for the rest of his working life. (b) The evidence of other employees of the appellant as to the stairs [23] Mr Hunt commenced employment with the appellant in June 1989 and became the plant superintendent. The respondent reported to either Mr Baines, the mechanical supervisor, or to him. To the best of his knowledge there were always steps leading down into the pit at one end; he could not remember anyone on a regular basis jumping down into the pit; the steps in the pit were the same as those bolted to the side of LPG tanks. Everyone who worked in the pits found the pits uncomfortable and would groan afterwards – it was not a nice place to work. [24] In cross-examination he said, "I would say that – what I'm saying is that all the time there's been a safe method of getting down there. There's always been a method of getting in that pit. Whether it was those steps on the day of this accident – whether they were there or whether they weren't, I don't – you know, I couldn't recall that." He later said, "I didn't assume there were steps, I knew there were steps there all the -- 6 of 31 -- 7 time. Whether it be that step or that step, there were steps there all the time. … What I'm saying is there was a pair of steps there all the time." He was then asked whether there may have been a stool rather than steps in the pit and he conceded that, as he was being asked to remember back six years, it was difficult and there could have been a stool rather than steps although he certainly recognised the steps in the tendered photograph: "they were there". [25] After the respondent was injured the pit was seldom used and a $5,000 two poster hoist was purchased and used instead. [26] He tried to stop workers jumping down into the pit because the steps should be used, but it was impossible to enforce. He again conceded that he had no actual recollection of steps and in fact a stool or something similar could have been used. [27] In re-examination he said there were steps in the pit all the time; there was a means of getting into the pit whether it was steel, wood or a stool but he could not recollect a stool; he could recollect steel steps and wooden steps, neither of which were fixed. [28] Mr Dollison has been employed by the appellant since 1988 initially as a fitter but then as workshop supervisor. He knew the respondent and was familiar with the work he was required to do. He did not regularly use the pit but would do so from time to time to assist the mechanics; he used the stairs to get into the pit. When asked whether there was a set of stairs into the pit he said, "As far as I know, yes. Every time I went into the pit there was." He remembered the stairs as two steel frames with wooden slats between them of two steps which were kept at the front end of the pit. The stairs were not fixed and they could have easily been fixed. The metal tank steps were used in the pit from perhaps 1994. Everybody complained about working in the pit including him: the pit was too small. He was asked, "And when you got out how was that, even with those stairs there? – Easy enough, just clamber out." Mr Dollison was 6 feet 3 inches tall. [29] Mr Baines was employed by the appellant as a motor mechanic from about 1988 or 1989 and was the workshop supervisor. He described the respondent as "a great man to get in there and work. He always did his job. He had no troubles." He was asked, "Were there a set of stairs in the service pit? – I seem to remember a wooden type of stairs at the – the forward part where the front of the car would be. I think it was wooden steps. It could have had steel. I can't remember if it was actually bolted or just free standing." He occasionally would enter the pit which he entered and exited by the stairs. There was a wooden box or stand that could be used to sit on whilst working; he used it because he was quite tall. He did not tell the respondent to use the box or stool when working in the pit or to use the stairs when getting in and out of the pit. He had no recollection of the respondent jumping in and out of the pit. He could not now actually picture the stairs that were in the pit. He did remember stairs being in the pit during the course of his employment until he left in 1993. He remembered them as having two steps; he had no recollection of the metal stairs in the tendered photograph. The respondent made no complaint about his knees prior to 18 August 1992. [30] Mr Allan was a friend of the respondent and worked with him for the appellant from 1990 until February 1995 as a maintenance fitter. On rare occasions, about -- 7 of 31 -- 8 five in all, Allan used the pit. He remembered having to step down into it and there was a step of some sort; you did not have to climb out of it, you stepped out of it, although it was a high step. [31] He recalled the respondent complaining about discomfort from the pit, as everyone did, and remembered some clicking in the respondent's knees, although he could not recall any complaint about pain. Mr Allan, who is about the same height as the respondent, recalled having to lift his leg high to get out of the pit when using the step; it was an effort but you did not have to climb out although it was a very high step. It was possible that there were no stairs but a wobbly stool; as the respondent was in the pit on a regular basis he would know. [32] Mr Black was employed by the appellant from 1990 or 1991 until 1995 or 1996 as a trades assistant. The respondent trained him to work in the pit where Black worked for about three years. At first, he used wooden steps to get in and out of the pit and later galvanised steel steps. The steps were only moved out of the pit when the pit was being cleaned. The respondent made no more complaints about work conditions in the pit or about the resulting pain than he did; it was an uncomfortable work place. Black said, "if you climbed out the front, up the two steps, and then, you know, the last step was about this high, you had to climb out", demonstrating a distance of about two feet from the last step; the last step out of the pit was "a beauty" and the positioning of the vehicle made it awkward to exit. It was suggested to him that "from time to time the steps weren't in the -----? -- I can't remember. The steps were always there. As you say it was hard to get in and out. Sometimes if you worked at the front, worked your way to the back, sometimes it was easier just to climb out the other end." (c) The medical evidence [33] Orthopaedic surgeon, Dr Morris, first saw the respondent on 10 November 1992. In a report to the Workers Compensation Board of 11 November 1992 he noted that the respondent told him: "that six weeks ago, on the 19th September (sic), he twisted his right knee getting out from under a car. He felt a click in his knee at that stage and the knee swelled." Dr Morris requested permission from the Board to perform an arthroscopic chondroplasty as in his opinion he had chondromalacia patellae aggravated by twisting, getting out from underneath a car. [34] Dr Morris performed the arthroscopy on 1 February 1993; chondromalacia was confirmed. In his report to the Board of 3 May 1993 Dr Morris described the respondent's condition as "quite bad chondromalacia on the rear surface of his patella in a localised area". [35] In a report to the Board of 19 May 1993 Dr Morris said that the respondent: "… is having the same problem with his left knee. He worked servicing cars for three and a half years. The job involved squatting type of activity. He now has pain in his left knee. When I examined it today, he had fluid in his knee and retro-patella crepitus. He is not able to return to work because of his left knee, -- 8 of 31 -- 9 not his right knee, and I think he would benefit by an arthroscopic chondroplasty." He unsuccessfully requested permission from the Board to perform the left knee arthroscopy. In a report to the Board of 15 July 1993 Dr Morris said that he considered the problem with the left knee was "a work related problem resulting from his occupation, servicing cars and crouching down". [36] In a report to the Board of 25 October 1993 Dr Morris said the respondent had "bilateral chondromalacia patellae. This has been caused by working, kneeling down in his job as a tradesman assistant. In the right knee he has had an arthroscopic chondroplasty and now has a five percent permanent partial disability. In the left knee he has not had any treatment yet and has increased symptoms. He would have about a ten percent disability in his left knee. I think this could be improved by an arthroscopic chondroplasty." [37] In a report of 10 September 1996 to the appellant's solicitor Dr Morris noted: "[The respondent] said that he twisted his right knee from getting out from under a car. The knee swelled straight away and then swelled intermittently following that. He was referred to see me on the 10th November 1992. At that stage when I examined him, he had fluid in his knee and had quite marked patello-femoral pain and Clark's test was positive. His x-ray was normal. He had an arthroscopic examination performed on the 1st February 1993 which showed a localised area of chondromalacia on the rear surface of his right patella. He said that the symptoms gradually settled but since that time has [sic] remained intermittent. He saw me a year later, on the 19th May, complaining of similar problems with his left knee. He had pain while squatting after servicing cars. The pain had been present for three and a half years. When I examined him at that stage, he had fluid in his left knee, quite marked patello-femoral symptoms. In the right knee, there was no fluid and he had mild patello-femoral symptoms." [38] Dr Morris was of the opinion that the respondent: "… aggravated pre-existing degenerative changes on the rear surface of his patella. This caused an initial flare-up which was treated by an arthroscopic chondroplasty. This has improved the state of his right knee. He has a similar problem with his left knee which now causes him more problems than the right knee. He has an underlying constitutional naturally occurring degenerative change on the rear surface of his patella which is causing him symptoms in both knees and the accident that he had in 1992 would only have been of a temporary, aggravating nature. The fact that his left knee is now causing him more problems that (sic) his right knee would suggest that the incident itself served to have a temporary, aggravating effect and longer term course of the pain in the right knee would not have been effected by the accident." -- 9 of 31 -- 10 [39] On 16 December 1996 Dr Morris reported to the appellant's solicitor that the respondent could do non-labouring work and probably light store work but could not manage a job involving a lot of kneeling or going up and down ladders: "It is difficult to say these accidents would have brought forward the condition. He knees were obviously at risk. The type of trauma that he had was pretty minor and probably in view of this, it would have been brought forward by about a year." [40] In an affidavit filed on 10 October 1997 Dr Morris said that his earlier opinion that the respondent's bilateral chondromalacia was work related was based on his belief that the respondent spent all day crouching down underneath cars servicing them and had done so for three and a half years. The respondent's condition was common in the community especially in teenage girls and was not necessarily work related; it could come on after climbing stairs, hills, cycling or kneeling down and developed over a long period of time; it was not caused by one incident. The respondent's bilateral chondromalacia patellae developed over a long period of time and was likely to have been fully developed well before 15 August 1992; the condition could be stirred up by minor occurrences such as the twisting of a knee; the temporary aggravation was "… likely to have lasted for only a couple of weeks, say early-mid 1992." Being in a squatted or crouched position for three to four times each working day for about half an hour each time is not likely to cause chondromalacia patellae and the respondent could well have developed the condition even if he had not performed this work. The condition is a naturally occurring degenerative condition found in about five percent of the community. X- rays of the respondent taken in September 1996 show osteophytes and demonstrate the early onset of osteoarthritis. The symptoms are exacerbated by anything that puts pressure from the kneecap on to the bone such as kneeling, squatting, going up and down stairs but these things do not cause the condition. [41] In evidence, Dr Morris said his opinion was based on what he saw when he conducted the arthroscopy and on the x-rays taken in September 1996. It was possible although not probable that although the respondent had degenerative chondromalacia patellae this could have remained asymptomatic; indeed it was possible for the condition to remain asymptomatic until the age of 70 and beyond. The fact that both the respondent's knees developed symptoms makes it unlikely he would have gone through a full life without getting symptoms in any case. In addition, the trauma that caused the condition to become symptomatic was quite minor and typical of everyday life. It was possible but rare for the left knee to have become symptomatic after having pressure put on it whilst recovering from surgery on the right knee; such pressure was not great and was typical of the pressures experienced every day; therefore it was likely the symptoms in the left knee would have developed in a fairly short period. [42] X-rays were taken of the respondent's right knee on 19 August 1992: Dr L Cockburn noted: "Knee joint effusion noted. No significant bony (sic) or joint abnormality can be identified. The articular surfaces appear normal." -- 10 of 31 -- 11 [43] Orthopaedic surgeon, Dr Parker examined the respondent on 2 September 1992 and thought he may have a torn lateral meniscus and noted fluid on the knee. By his next visit on 9 September his knee was much better but still with some fluid. In his report to the Workers Compensation Board of 1 December 1992 Dr Parker outlined the respondent's history as: "… he had been working under a car in a pit. When he had been standing for about 3 or 4 days, he twisted his knee and felt a click. The knee then became swollen. There was pain over the lateral side of his knee." Dr Parker saw the flare up of symptoms when working for Moggill Constructions as an aggravation of the previous injury rather than a new injury. [44] Orthopaedic surgeon, Dr Dodsworth, examined the respondent on 23 June 1993 and noted that x-rays of the left knee which he ordered showed: "…early osteoarthritic changes mostly in the medial and patello- femoral compartments and the patella osteophytes were nicely seen in the merchant's views. I believe the diagnosis here is early osteoarthritic change. It does not seem to me that there has been any obvious precipitating cause for his left knee pain and I would be cautious about accepting this as a compensatable injury. It also seems to me that he has not got a perfectly smooth patella from his previous chondroplasty on the right side, and I would be hesitant to offer him the same on the left." [45] Orthopaedic surgeon Dr Pentis examined the respondent on 26 September 1995 at the request of the respondent's solicitors. He noted that in August 1992, "while getting out of the pit he jarred and twisted his leg and he had a sharp pain". Dr Pentis perused reports from Dr Morris and Dr Dodsworth, who referred to an x-ray report which demonstrated mild degenerative changes acceptable in someone of the respondent's age. Dr Pentis assessed residual incapacities amounting to a seven and a half percent loss of efficient function of the right lower limb and a five percent loss of efficient function of the left lower limb. He said the respondent should undertake gentle exercises and abstain from activities involving squatting. He noted that a further arthroscopy especially of the left knee if the condition deteriorated may assist, and that the respondent should not work in a field involving crouching, bending or squatting. [46] A person with asymptomatic chondromalacia patellae may become symptomatic within an unknown period or may remain asymptomatic; certain activities make it more likely that the condition will become symptomatic sooner. [47] If you injure one leg you tend to favour the opposite leg and will usually find problems develop with the opposite leg in time. It is difficult to know how bad the respondent's chondromalacia patellae were before the symptoms emerged unless an arthroscopy was done before the accident and another afterwards. The heavy work done by the respondent as a labourer for Moggill Constructions would have aggravated the symptoms which initially became symptomatic with the twisting as he got out of the pit. -- 11 of 31 -- 12 [48] Dr Cockburn's 1992 x-ray report merely indicated that degenerative change had not worn through to the bone. [49] Dr Martin Devereaux, a rheumatologist, examined the respondent at the request of his solicitors on 5 February 1997. He noted that "On the 19th September 1992, he twisted his right knee when standing up from under a vehicle." He diagnosed bilateral patellofemoral arthralgia more severe on the left. He concluded: "… he has had right knee chondromalacia patellae confirmed on arthroscopy. He has had a good recovery in the right knee since having surgery. He now has pain only on stressing the patellofemoral joint with kneeling, crouching or negotiating stairs. He has, however, had recurring and worsening problems with pain and effusion in the left knee. He probably has underlying chondromalacia patellae affecting this joint. He certainly needs arthroscopy, a chondral shave and lateral release for treatment. … Although chondromalacia patellae can be regarded as 'an underlying constitutional naturally occurring degenerative change on the rear surface of the patella', as noted by Dr John Morris in his report from the 10th September 1996, there are usually other factors such as sporting activity causing stress to the patellofemoral mechanism or direct trauma to the anterior aspect of the knee precipitating the onset of symptoms. I note that in his report from the 15th July 1993, Dr John Morris felt that the left knee was also a work related problem resulting from his occupation, in particular the crouching required to service cars. At that time he felt that the left knee also required an arthroscopic chondroplasty and considered this to be Compensatable. The position as explained to me by [the respondent] in respect to his job of three and a half years would certainly be conducive to precipitating his patellofemoral injury. He would walk with a waddling gait crouched at the hip and knees under vehicles. I would regard this activity as the main contributing factor to his knee problem. At present he has a 5% disability affecting the right knee and a 15% disability affecting the left knee. The left knee may still improve if he has the surgery that was advised to Workers Compensation in May 1993. Even with surgery to the left knee and improvement, his future employment will be limited by any activity that puts strain upon the patellofemoral joint. He will have problems with stairs, crouching, squatting and kneeling as well as sitting for prolonged periods of time with his knees flexed." [50] In a further report of 22 July 1998 Dr Devereaux noted: -- 12 of 31 -- 13 "I would have expected that over many years, [the respondent] would have become symptomatic if he remained performing such a job. It was however, the injury to his right knee when he twisted and developed a flare up of pain and swelling that precipitated his current problems. The left knee has also become symptomatic while protecting the right knee post-operatively. Since then he has had episodes of pain and swelling in both knees. If he did not have the initial injury to the right knee, he may never have developed symptomatic chondromalacia patellae. Certainly if he was able to stand with the car on a hoist with no requirement to bend his knees and 'waddle walk' under a vehicle, it is unlikely that the knee problems would have caused any major symptoms." [51] Dr Devereaux thought it unfortunate that Workers Compensation had not approved the arthroscopy to the left knee which was likely to have made the respondent a fitter person. In forming his opinion Dr Devereaux relied on Dr Parker's report; Dr Parker was the first orthopaedic surgeon to examine the respondent and thought he may have torn a lateral meniscus (although the arthroscopy later demonstrated that this had not occurred); the swelling immediately consequent upon the injury suggests it was one of some internal severity. [52] It is impossible to predict when the respondent's asymptomatic joint disease would have become symptomatic in any case had he continued in this work; it may have been within one year or only after many, many years. The chondromalacia observed in the subsequent arthroscopy could be consistent with the August 1992 injury bringing on symptoms from less serious chondromalacia. [53] Dr Devereaux accepted Dr Morris as an experienced orthopaedic surgeon to whom he referred all his patients needing arthroscopies. Nevertheless, in his opinion, it was likely that on 18 August 1992 the respondent sheared some cartilage in his knee in the injury and the chondromalacia patella progressed from an asymptomatic grade one or two to a more serious and symptomatic grade three or four. [54] Ms Lynlie Cantwell, an occupational physiotherapist, assessed the respondent on 9 January 1996 and noted in her report that: "Apparently [the respondent] injured his right (R) knee on 18 August 1992, when he twisted his right (R) knee whilst climbing out of a service pit after working underneath a car." She also noted that after undertaking hard labouring work at Moggill Constructions his symptoms were exacerbated. [55] Dr Ian Low, a specialist in occupational medicine, reported that the respondent told him on 20 March 1996 that on 18 August 1992 he "spun around on his right knee, on standing up from the crouched position, in the process of getting out of the pit. He said that the knee ached and, the next day, it was painful and swollen." He noted that: "Untoward work postures are associated with an increased likelihood of musculoskeletal disorders (see attachment). The pit should have been of an appropriate height in order to allow [the respondent] to move under the vehicle in an upright position. -- 13 of 31 -- 14 However, the contribution of the stress on his knees while working in the pit, the twisting of his right knee on getting out of the pit and the increased stress on his left knee after developing symptoms in his right knee to the development and persistence of symptoms from chondromalacia patella needs to be assessed by an orthopaedic surgeon." It would be preferable to have fixed stairs in such a pit to avoid the risk of injury when clambering out; it is common for concrete steps to be built into pits of this sort. If a pit is to be used rather than a hoist it should be deeper than one metre to avoid unnecessary bending, crouching and squatting which places pressures on the body, especially the lower limbs. Liability [56] Mr Keane QC, who appeared with Mr Land for the appellant, submits that the primary judge was not entitled on the evidence to find that: "… the [appellant] failed in its duty of care to the [respondent] whether at common law or by statute by failing to provide proper steps or ensuring that proper steps were fixed in the pit and further, or in the alternative, by requiring the [respondent] to work in the pit with a consequential need to have to try and climb out of the pit when the [appellant] ought to have had a hoist for this work in any event." [57] Since 3 September 1997, the respondent's pleaded case was that the injury of 18 August 1992 occurred after servicing a vehicle in the pit in a bent knee position and whilst exiting the pit. As the action was not commenced until August 1995 and no extension of the limitation period was pursued, the respondent could not rely upon any unsafe system of work in the pit before 15 August 1992. During the trial, the issue of the stairs became important as is demonstrated by the particulars filed during the course of the trial. The steps issue was not directly raised until the trial commenced and consequently witnesses were not asked to reflect on this issue until six years after the event; in those circumstances, it is difficult for honest witnesses to give reliable evidence on the issue. [58] His Honour had the onerous task of assessing a large body of conflicting, uncertain evidence as to whether there were stairs in the pit on 18 August 1992. The respondent, who worked in the pit every day for two and a half years, was adamant there were no stairs in the pit. Mr Hunt, as plant superintendent, would not have used the pit as often. He seemed sure there were either wooden or metal stairs into the pit at the time but conceded it was difficult to remember and a stool may have been used. Mr Dollison did not use the pit regularly but he remembered wooden slats between steel frames being used as steps in the pit; he thought he could remember wooden stairs at the front of the pit but was unsure if they were bolted or free standing and also remembered a wooden box or stand; he could not now actually picture the stairs that were in the pit. Mr Allan, who worked in the pit on only rare occasions, remembers a step of some sort into the pit but conceded that there may not have been stairs but a wobbly stool; he recalls having to lift his leg high to get out of the pit when using the step; he noted that the respondent was in -- 14 of 31 -- 15 the pit on a regular basis and would know. Mr Black worked regularly in the pit for about three years; when he first started wooden steps were used and later galvanised steel steps; the last step up was about a couple of feet and he noted that it was sometimes easier just to climb out if you were at the end without steps. [59] The primary judge formed a favourable impression of the respondent pointing out that he did not exaggerate his evidence, for example, as to his domestic assistance. His Honour reviewed the evidence of the witnesses called by the appellant as to the stairs and because of the many discrepancies and inconsistencies with their accounts was not persuaded that there were steps in the pit at the material time, preferring the respondent's evidence. [60] Although the judge could have rejected the respondent's evidence on this point, we are not persuaded the judge erred in finding as he did. The evidence is uncontroverted that the respondent received an injury to his knee on 18 August 1992 which caused swelling and pain and detrimentally changed his life. He has more reason to recall what happened on that day than do the other witnesses. He was educated only to second year high school; his evidence suggests he was not forthcoming with answers in evidence in chief in a non-leading form, and was not a good communicator. He appeared straight forward and guileless in answering questions in cross-examination and was not discredited. [61] It seems likely that were he not specifically asked by his lawyers as to whether there were stairs to enter and exit the pit, he would not have volunteered this fact, and that his uncommunicativeness was the cause of the failure to clearly plead his case at an early stage. Although he made no early mention of stairs, the information generally given in the contemporaneous Workers Compensation Board forms and to medical practitioners was not inconsistent with the respondent's case that he injured himself or aggravated his condition whilst getting out from underneath a car in the pit and climbing out of the pit. The early statements, starting with those noted by Dr Morris, deal only with allegations of injury from the bad postural environment in which he worked. However, the respondent made clear allegations well before trial of suffering his injury while leaving the pit. For example, he told Dr Pentis in September 1995 that he jarred and twisted his leg "while getting out of the pit"; he told Ms Cantwell in January 1996 that he twisted his right knee whilst climbing out of a service pit; and in March 1996 he described to Dr Low an incident "in the process of getting out of the pit". The respondent's failure to mention stairs earlier than he did is, at best for the appellant, equivocal. Mr Keane QC emphasises that the respondent made no mention of placing the metal stairs in the pit after this incident until cross–examination. Again that required the respondent's case to be considered with considerable circumspection, but it may be consistent with an uncommunicative and guileless make-up of the respondent as distinct from the presentation of a dishonest claim. [62] Mr Keane QC submits that as the evidence of the stairs only became a critical issue in this trial when it was elicited from the respondent in questioning by the primary judge, and the judge then accepted that evidence whilst rejecting a substantial body of other evidence, an appellate court is authorised to set that determination aside: see SRA (NSW) v Earthline Constructions Pty Ltd, Kirby P:2 2 [1999] HCA 3; 73 ALJR 306, 331 [93]. -- 15 of 31 -- 16 "5. The circumstances in which evidence was procured on a critical point, pertinent to the credibility of a crucial witness, may be unsatisfactory. Those circumstances may undermine the acceptability of the judicial determination of the credibility of a crucial witness. They may authorise the appellate court to set that determination aside", citing with approval Commonwealth Bank of Australia v Mehta.3 In Mehta, the questions asked by the primary judge elicited answers which he then accepted. Meagher JA noted the judge's questions were: "… leading questions inviting the answers they got, and they were put by the judge not by counsel. They could not have been put in chief, and would not have been put in cross-examination. I do not believe a judge may make impregnable findings of fact by expressing a belief in evidence which he has put in a witness' mouth." [63] This was not a case where the questions asked by the judge 4 amounted to cross- examination. Although Mr Di Carlo somewhat curiously informed the judge at the trial's commencement of the respondent's need to establish the injury occurred on 18 August 1992 rather than in a period before the expiration of the limitation period, his Honour properly said it was a matter for counsel to decide how to run the case. Later, the respondent gave evidence as to how he got out of the pit; it was understandable that the judge wished to know whether there were steps, a ladder, railings etc to assist in climbing out of the pit. The questions of the type asked by the primary judge, unlike in Mehta, should have been asked in examination in chief and may well have been asked in cross-examination. A judge is entitled to ask questions in order to clarify matters or to ensure a fair trial: see Rex v Hopper.5 Whether there was any method of getting in and out of the pit was an obvious question that should have been asked and was not; the judge was entitled to clarify this. Once the issue of stairs arose, it was then fully canvassed at the trial and a great deal of conflicting and confusing evidence was given upon which the judge had to reach a determination. Trite as it may sound, the judge had the real advantage of observing those witnesses. Although the contrary conclusion was also open, we are not satisfied that the primary judge had too fragile a base to support his acceptance of the evidence of the respondent as to the absence of stairs in the pit on 18 August 1992: see SRA (NSW) v Earthline Constructions Pty Ltd.6 [64] The appeal as far as it relates to liability must fail. Quantum [65] Mr Keane QC submits that the primary judge was only entitled to find on the evidence that the injury on 18 August was a temporary aggravation of no more than 12 months duration; in effect the judge should have accepted Dr Morris' evidence. 3 (1991) 23 NSWLR 84 at 92. 4 Set out in [10] of these reasons. 5 [1915] 2 KB 431, 435. The issue is discussed in Judicial Intervention in the Trial Process, Ipp J, (1995) 69 ALJ 365. 6 Op cit n3, at 321. -- 16 of 31 -- 17 [66] Mr Keane QC points out that there was evidence in the medical reports that the respondent had experienced pain and discomfort before 18 August whilst working under vehicles in the low pit. This submission does not seem to be supported by the evidence: the respondent felt uncomfortable after working in the pit and had some clicking in the knees but no pain prior to 18 August 1992. There was evidence from the appellant's other workers who had experienced the pit that they all complained and felt uncomfortable whilst working in the pit and afterwards. The respondent's complaints to medical practitioners of discomfort prior to the incident of 18 August were consistent with the discomfort expected from working in such conditions and not to specific knee pain. The respondent consistently claimed he did not have the pain in his knees before 18 August 1992. The one exception to that proposition is the account in Dr Morris' report of 10 September 1996 which seems to suggest that the respondent had knee pain for three and a half years before November 1992.7 Neither the respondent nor Dr Morris was examined about this issue. The period of three and a half years was the period the respondent had worked for the appellant before pain and swelling developed on 18 August 1992; Dr Morris conceded in evidence that the respondent said he had no pain prior to 18 August 1992. In those circumstances, we would not be prepared to place any weight on that statement in Dr Morris' report of 10 September 1996. The medical evidence, including that relied on by the appellant, supported the finding that the incident of 18 August 1992 aggravated a pre-existing condition; the issue was the extent of that aggravation; damages must be limited to the period for which the symptoms have been exacerbated. [67] This is not a case like Nilon v Bezzina8 where two separate accidents contributed to the current state of the plaintiff's health. Rather this was a case where the respondent's work conditions prior to the expiration of the limitation period may have contributed to the development of chondromalacia patellae which remained asymptomatic; on 18 August 1992 he injured himself at work whilst climbing out of the pit and chondromalacia became symptomatic in the right knee; some months later whilst recovering from surgery on the right knee and after placing more reliance on his left knee, his left knee became symptomatic. He improved and returned to work but then left for another job which caused his symptoms from the 18 August 1992 incident to flare up. [68] Mr Keane QC's primary submission is that the judge should have accepted the evidence of Dr Morris rather than the evidence of Drs Devereaux and Pentis. [69] Whilst the evidence of the treating doctor, Dr Morris, who was also the doctor who conducted the arthroscopy on the right knee does hold particular appeal, his Honour gave sound reasons for preferring the evidence of Drs Devereaux and Pentis which was mutually supportive; the report of Dr Parker on 2 September 1992 is consistent with the respondent receiving a significant injury on 18 August 1992 exacerbating asymptomatic chondromalacia in the right knee and causing it to become symptomatic. We also note that Dr Morris apparently changed his opinion as to the effect of work conditions on the respondent: chondromalacia between the time of his report in 1992 and 1993 and his affidavit in 1997. All doctors agreed there was no scientific basis to determine exactly how much sooner the respondent's 7 See [37] of these reasons. 8 [1988] 2 QdR 420. -- 17 of 31 -- 18 symptoms appeared because of the injury on 18 August 1992. Dr Morris thought it was 12 months at most, but conceded in cross examination that it was possible that the symptoms may never have surfaced. Drs Pentis and Devereaux were not prepared to give any time estimate; Dr Devereaux noted that had the respondent continued in his employment he could be expected to become symptomatic "over many years". His Honour had to do the best he could in the circumstances. On one hand, the respondent was at risk because of the work he was doing which involved many hours of crouching underneath vehicles each day and may have developed symptoms within weeks of 18 August 1992. On the other hand, within 12 months of the injury the appellant had obtained a hoist to replace the pit; had the respondent's symptoms not come to light by that time he would have been able to continue his working life with the appellant until retirement. [70] Mr Keane QC next submits that in assessing damage the judge did not give sufficient weight to the fact that the respondent was an unskilled labourer who was very much at risk of developing the symptomatology. Rather than find a notional period of time by which the symptoms would have emerged in any case, his Honour allowed past economic loss in full and discounted future economic loss to reflect these factors. The learned judge allowed future economic loss at $320 (the respondent's net pay from the appellant) for two years and then $100 per week for 28 years, reducing this by 30 percent for the contingencies of this case and rounding off to $70,000. His Honour found that with further surgery to the left knee, treatment, and the opportunity to develop a business and purchase equipment to assist his physical disabilities, it was likely that the respondent would be able to find lighter work, although it may not be as lucrative as the employment he would have been able to obtain but for his injury. Of course, on the other hand, his future employment may be more lucrative. Although his Honour discounted the sum awarded for future economic loss by 30 per cent, that does not fairly reflect the effect of the medical evidence which demonstrates the very real likelihood, increasing over time, that the respondent would have found himself in his current position, regardless of the incident on 18 August 1992. The respondent was only 29 in August 1992. The medical evidence supports a finding that it was extremely likely the respondent would have developed the symptoms well before age 60, with these chances increasing over time, although there was a slight possibility that he may never have become symptomatic. [71] The question whether the damages for past economic loss and for future economic loss were excessive depends largely upon the question whether sufficient account was paid to the proven risk that similar disabilities would have in any event supervened at some stage. This is a common difficulty. There was considerable variation in the medical evidence on this point. In considering this question the learned trial judge acknowledged that the respondent was at risk of developing such symptoms in his knees in any event, that he had continued in a similar occupation after the original injury, and that other traumatic events in life may have led to the same disabilities. His Honour also acknowledged that some discounting should take place on account of such factors. Although the evidence was not capable of fixing the time by which natural progression of the respondent's condition would have affected his earning capacity, all doctors recognised that this was a real risk and that it was a condition that could be worsened by everyday occurrences, in particular by work such as that which the respondent alleged he would have continued to perform. Damages were to be assessed for a precipitation or -- 18 of 31 -- 19 aggravation of a pre-existing condition. If Dr Morris' evidence had been accepted, the assessment of damages would have been very trivial indeed. However on the other evidence that his Honour preferred it is perhaps surprising that the six year period up to trial was assessed without any discount. If this part of the award is allowed to stand, there is all the more reason to ensure that proper allowance is made for these risks in relation to future economic loss. Some account should also be given to the fact that the respondent voluntarily left his employment with the appellant to take another job with which he found he could not cope. That is by no means to his discredit, but suggests the need for caution in assuming a fully employed working future based on his level of remuneration with the appellant. We have performed a number of exercises including the allowance of a minor discount on past economic loss and a significantly greater discount in relation to future economic loss than that allowed by his Honour. In the end, we consider that the total of past and future economic loss (almost $170,000) should be reduced by $35,000. As the exercise is not one which can be based upon precise calculations, it does not matter whether this reduction is regarded as a halving of the amount allowed for future economic loss, or as being achieved by a combination of a slight reduction of past economic loss and a larger reduction of future economic loss. In substance we accept Mr Keane QC's submission that insufficient weight was given to the risk of the respondent developing similar symptomatology in any event. [72] It follows that in our view the appeal as to quantum should be allowed and the judgment varied by reducing the amount for which judgment was given by $35,000 from $201,813.55 to $166,813.55. The appeal is otherwise dismissed. The appellant was unsuccessful on issues concerning liability which occupied the major part of argument and some part of the record. We would therefore limit the order for costs to the extent that the respondent be ordered to pay two-thirds of the appellant's costs of the appeal to be assessed. [73] CHESTERMAN J: On 13 October 1998 the respondent obtained judgment in the District Court against the appellant, his former employer, for $201,813.55 damages for negligence and breach of s 9 of the Workplace Health and Safety Act 1989. The respondent had worked as a trades assistant at premises in West End between 8 May 1989 and 28 October 1992. Relevantly the respondent's duties were to carry out "grease and oil change" services to the appellant's motor vehicles. To gain access to the underside of the vehicles the respondent stood in a pit which had been excavated in years gone by. It varied in depth between 105 and 110 cm. The base and walls of the pit were concrete as was the floor of the workshop in which the pit was located. Vehicles to be serviced would be driven over the pit which was longer than they were. The respondent (and other employees who did the same work) could get into and out of the pit in front of the vehicles without having to manoeuvre under them. [74] The respondent was a small man, only 5 ft 4 inches tall. In imperial measure the depth of the pit was, at the shallowest, 41.3 inches. To service vehicles the respondent had to bend, squat, kneel and "waddle". [75] The respondent's case was, in essence, that he suffered chondromalacia in both knees as a result of the manner in which the appellant required him to perform his work. There were two respects in which the system of work was said to be deficient. The first was that because of restricted space between the underside of -- 19 of 31 -- 20 the vehicles and the floor of the pit the respondent was obliged to adopt awkward postures for considerable periods so that over three years of employment the respondent's knees were subjected to considerable strain and developed chondromalacia. The second was that no convenient means of access or egress was provided to or from the pit. [76] The first basis on which the respondent put his case was beset by considerable difficulty. He had experienced serious discomfort in his right knee on 18 August 1992. The respondent commenced his action in the Supreme Court on 15 August 1995. He made, but did not persist with, an application pursuant to s 31 of the Limitation of Actions Act 1974 to extend time for commencing his action. The consequence was that the respondent's claim based on this defect in the system of work was limited to the effect of the alleged negligence for the three days, 15 – 18 August 1992. [77] The respondent avoided this exigency by shifting the focus of his case to the second respect in which the appellant's system was said to be deficient. The trial judge accepted that the respondent injured his right knee on 18 August 1992. His Honour said: "… that on 18 August 1992, having on that day worked in an awkward position in this pit beneath a vehicle servicing the vehicle, and coming out from underneath the vehicle and in the space between the vehicle and the end of the pit, while attempting to climb out by taking his body weight on the right knee, he twisted his right knee and suffered injury … the [respondent] had not, prior to that date, suffered any injury to his knees and … was not suffering any pain or swelling in his knees … immediately after this incident, he suffered swelling and pain and continued to do so …". [78] The legally relevant cause of the injury was found to have been the appellant's failure to provide steps to facilitate the respondent's ascent from the pit. The finding that the appellant had not provided steps was critical to the determination that it had been negligent, and in breach of the duty imposed by s 9 of the Workplace Health and Safety Act. The appellant challenges the finding that it had not provided a convenient means of entering and leaving the pit. [79] The respondent gave evidence that there were no stairs. The respondent called five witnesses all of whom said that the pit was equipped with stairs. The appellant faces the familiar, but difficult, task of having to overturn a finding of primary fact based, at least in part, upon the trial judge's assessment of witnesses who testified to the presence and absence of steps. The appellant confronts the task boldly. It submits that the trial judge did not make proper use of the advantage which he enjoyed and that the respondent's assertion cannot stand against the weight of evidence arrayed against him. [80] Before turning to consider the factual basis for the submission it is convenient to set out the principles to be applied when an appellate court is invited to form an opinion on the facts different to the trial judge's. They have recently been reviewed and re-stated by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 73 ALJR 306. His Honour's -- 20 of 31 -- 21 opinion as to the proper approach in such cases can, I think, be summarised in a passage appearing in par 78 of his reasons: "… in Dearman v Dearman … Isaacs J gave voice to the apparently competing requirement falling on the appellate court: the first is 'the primary duty, and in fact the whole duty, of every Court of Appeal [which] is to give the judgment which in its opinion ought to have been given in the first instance'. The second is to observe the 'natural limitations' which exist in the case of any appellate court. It is to accept that the trial judge might have found significance in '(a) look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence' which cannot be attributed to the witness 'in the mere reproduction in type' … An appellate court was not excused from the task of 'weighing conflicting evidence and drawing its own inferences and conclusions'. However, it would always 'bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect'." Earlier in par 76, his Honour had quoted from the judgment of the Court of Appeal in Coghlan v Cumberland [1898] 1 Ch 704 at 705: "… and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen". Kirby J noted that this approach had been adopted "in many later decisions of this Court". [81] In par 86 his Honour explained that Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472 did not "state a new principle of law" but "are to be read as lying in the mainstream of the Court's 'traditional' approach to the appellate function". [82] Kirby J reminds us (at 329) of a remark made by Atkin LJ that "an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts is worth pounds of demeanour". His Honour also identified (at 331-2) a number of circumstances in which a finding of credibility "does not represent the end of analysis by the appellate court". "It may be possible to show, by reference to incontrovertible facts or uncontested testimony, that although the trial judge reached conclusions which were adverse to the credibility of an important, even crucial, witness, such conclusions are plainly wrong. For example, they may be based upon expressed or implied assumptions about the evidence … which careful analysis … demonstrates to be incorrect … The reasons given by the trial judge for rejecting the evidence of a particular witness may go beyond a simple statement about the witness's appearance or demeanour. The additional reasons may -- 21 of 31 -- 22 demonstrate that the judge took into account irrelevant considerations or has not properly weighed all of the relevant considerations … There is also the case … where … a credibility finding has been made … is so contrary to the 'extreme and overwhelming pressure' resulting from the rest of the evidence, or is so 'glaringly improbable' or 'contrary to the compelling inferences of the case', that it justifies and authorises appellate interference …". [83] The appellant submits that, in accordance with these principles, the complaint of a lack of steps should have been rejected. Not only was it controverted by a substantial body of testimony but the respondent's own evidence was attended by doubt because of (a) the late hour at which the second case appeared; and (b) its inconsistency with what went before. [84] The tardy arrival of the complaint may be seen from the following history. As described in his first statement of claim, 18 April 1996, the respondent's case was that he "was required to service vehicles from the pit in the squatting position … for … approximately three hours per day … As a result of [which] … he suffered personal injury." Four particulars of negligence are alleged, none of which concerns a difficulty in gaining access to or from the pit. The only "true" particular is that the appellant failed to provide "a pit which would not require the [respondent] to work in a crouched, bent knee position". An amended statement of claim dated 3 September 1997 alleged that "… on or about 18 August 1992 [he] … moved out from the pit … jarred and twisted his right leg [and] … suffered injury to the right knee." The particulars were amended, but not with respect to means of accessing the pit. [85] When the action was remitted to the District Court, a plaint dated 15 August 1997, amended on 23 October 1997, repeated the case that the respondent was injured because for years he had been required to work in cramped and awkward conditions thereby placing excessive strain on his knees. No complaint is made of a lack of steps in the pit. [86] The plaint was again amended by leave when the trial commenced. The case then was that on or about 18 August 1992 the respondent moved out "from underneath the vehicle after having worked in the pit and in the process of exiting the said pit, jarred and twisted his right leg". The particulars do not mention any difficulty in accessing the pit, nor does it refer to a failure to provide steps. [87] The trial commenced on 24 August 1998. Counsel for the respondent described his case in these terms (R5.10-.20): "[The respondent] was required to work in a pit … one metre … in depth underneath … vehicles and during that process he was required to duck waddle and kneel … and move around … that pit. Subsequent to this event the pit was closed down, a hoist was put in place … We say one specific incident caused … asymptomatic -- 22 of 31 -- 23 chondromalacia … to become symptomatic. They say it was the duck waddling, the kneeling and the behaviour … in that pit over a period of three of more years that caused the chondromalacia … the issue … at hand … is did the chondromalacia … occur over a period of time as a result of negligence … which is not compensable except for the last three days …". The respondent gave evidence consistent with the case pleaded and opened. It is fair to say he was not an articulate historian but nevertheless described the features of the case that had been adumbrated on his behalf. He explained the incident on 18 August 1992 (R22.5-.12): "… you were exiting the pit; is that correct? – Yes What happened? – I twisted my knee as I was getting out. Can you explain … what motion you took or what step you took? – Sort of like come to the wall, sort of put – put one leg up and I was coming up my leg that was still on the ground twisted. You put one leg up? – Yes, to get out … And then as I was – come around to get out I've twisted … the … right leg." The respondent confirmed this account in cross-examination (R115.8-.12): "… tell me whether this is correct: … your left leg was up out of the pit in a bent position on the ground …? – Yeah, I put my left leg up first on the level ground out of the pit … That meant your right leg was still back in the pit? – Yes … … when you first put your left leg up on natural ground level your right leg would have been straight …? – Yes." [88] Following the description which I have set out the trial judge sought to elicit a better understanding of how the respondent was injured. His Honour asked whether the pit had any ladder, or "anything like that" for the respondent "to step on to get out". He was told no. Evidence-in-chief continued until shortly before the luncheon adjournment when the trial judge said (R61.55): "… I'm just wondering whether or not the case for the [respondent] is … that there was really something wrong with the pit, for example, it didn't have steps to climb out rather than … trying to lift himself out over that metre and three centimetres height". Though counsel for the appellant pointed out that it was not pleaded the respondent's counsel accepted the hint and adopted the new case. After running for three days the action was adjourned to 5 October 1998. During the interim, by letter dated 28 September 1998, the respondent's solicitors set out further grounds of negligence. They included failing to provide any appropriate ladder or steps into the service pit, and failing to ensure that steps remained in the pit. From this review it is clear that it was only after the trial began that the respondent first complained that he was injured because his employer had not provided stairs. [89] Perhaps more remarkable than the respondent's failure to realise that he was injured because his employer did not provide a ready means of leaving the pit is the fact that such a case is irreconcilable with the case that had been pleaded and embarked upon at trial. -- 23 of 31 -- 24 [90] The claim for workers' compensation made by the respondent is equivocal in its description of the cause of the injury. The cryptic description is "climbing out of pit from under vehicle". However, another form signed by the respondent on 8 June 1993 is more explicit. In answer to the questions: "What were yo u actually doing when the injury was sustained?" and "How did the injury occur?" he answered "squatting under cars for term of employment … 3½ years squatting under cars." [91] The respondent was seen by Dr Parker, an orthopaedic surgeon, on 1December 1992. The doctor noted the respondent's history as being (R400): "… he had been working under a car in a pit. When he had been standing for about 3 or 4 days (semble hours), he twisted his knee and felt a click. The knee then became swollen." [92] The respondent was referred by his solicitors to Dr Pentis, orthopaedic surgeon, who examined the respondent on 26 September 1995 and reported (R417): "Apparently, he had to get into a pit to service cars where he was working. He had to remain in a sort of semi-crouched position and this was placing stresses upon his knee. It cricked and cracked at times. On one occasion, in [August] 1992, while getting out of the pit he jarred and twisted his leg and he had a sharp pain". [93] The account recorded by Ms Stephenson, occupational therapist, (R440) was that the respondent: "… was injured while working as a trades assistant servicing cars. He worked in a pit in a semi-crouched position which placed stress on his knees. On 18/8/92, he jarred and twisted his right leg, causing injury to the right knee while climbing from under a car on a service pit." [94] Dr Low who examined the respondent on 20 March 1996 reported (R462-3): "[The respondent] said that he commenced employment … in 1989 as a serviceman, his main duty being to service vehicles … there was only about 1200 mm from the bottom of the pit … to the bottom of the vehicle above. He said that he had to waddle like a duck to traverse the pit while servicing the vehicle … [The respondent] said that, on … 18 August 1992, he spun around on his right knee, on standing up from the crouched position, in the process of getting out of the pit. He said that the knee ached and, the next day, it was painful … He said that, for about four months prior to this, he had heard clicking and cracking in the knee on squatting and straightening his knee … [The respondent] would have placed stress on his lower limbs while working on the vehicles in the pit and he also attributes the twisting of his right knee on … 18 August 1992 to going from the crouched to the standing position while getting out of the pit." [95] Dr Morris reported on 15 July 1993 (R472): "[The respondent's] job involves going up and down stairs and crouching down all day. He squats down while servicing cars and has done this for the last three and a half years … he had -- 24 of 31 -- 25 chondromalacia … I consider that this is a work related problem resulting from his occupation, servicing cars and crouching down." [96] In a later report of 10 September 1996 (R486) Dr Morris reported: "[The respondent] said that he twisted his right knee from getting out from under a car. The [right] knee swelled straight away … He was referred to … me on 10th November 1992 … he saw me a year later, on the 19th May, complaining of similar problems with his left knee. He had pain while squatting after servicing cars. The pain had been present for three and a half years." [97] Dr Devereaux examined the respondent on 5 February 1997 and reported (R488): "[The respondent] twisted his right knee when standing up from under a vehicle. He had been crouched down and had to 'waddle walk' to be under the vehicle which was on a ramp. He was unable to stand upright. Within several hours he noticed pain and swelling in the right knee joint … While protecting the right knee … he noticed aching in the left knee … He considers the contributing factor to both knees was working for three and a half years in a squatting position beneath vehicles." In a subsequent report of 22 July 1998 Dr Devereaux said: "Right knee chondromalacia … has been confirmed … It is presumed he has a similar problem affecting the left knee … [this] produce[s] symptoms of knee pain aggravated by posture and activity such as sitting or squatting with a bent knee or climbing stairs or hills … In my experience, the description provided … in respect to this man's occupation where he spent prolonged periods of time crouching down beneath vehicles would be consistent with causing his chondromalacia … It was … the injury to his right knee when he twisted and developed a flare up of pain and swelling that precipitated his current problems." [98] This evidence points inexorably towards the respondent having told a consistent tale that the painful condition of his knee was caused by stress imposed over time by working in a restricted space. There is no precise description of the event which precipitated or exacerbated right knee pain. Some reports state that the onset of pain occurred when the respondent "climbed" or "got" out of the pit. The accounts of just what the respondent was doing at that moment are equivocal, but it is noteworthy that: 1. there is nowhere a complaint of a lack of stairs; 2. the respondent attributed his disability to squatting over a protracted period. The point in 2 is the antithesis of the case which the trial judge accepted, that of a sudden precipitation of pain caused on one identifiable occasion by the strain of getting out of the pit because there were no stairs. [99] The lateness of the respondent's "real" case, and its inconsistency with the initial case are matters which, to say the least, were of very great relevance when deciding whether the case should have been accepted. The inconsistency was not referred to by the trial judge. Lateness was mentioned only in passing. His Honour disposed of the matter by preferring the respondent's evidence to that of the appellant's five witnesses. Having reviewed their evidence, he concluded: -- 25 of 31 -- 26 "When it came to describing the distance from the top of the steps to the top of the pit, Mr. Black, as did Mr. Allan, described a distance that suggested one could not, if you were [not] taller than these witnesses, step out of the pit easily. On the contrary, these two witnesses … persuaded me their recollections suggested there was quite some distance for someone to negotiate to get out of the pit consistent with there being at one stage a low wooden stool in the pit, as suggested by the [respondent]. Consequently, as these witnesses called by the [appellant] described 'steps' that were not fixed, were different steps in their materials, and 'disappeared' and recalled circumstances whereby a gap was in evidence between the 'steps' and the top of … it still requiring a step up or a climb out of the pit situation, I am not persuaded that there were steps in the pit at any material time. On the contrary, I accept the [respondent's] evidence that on 18 August 1992 there were no steps available for his use. Further, I accept his evidence after the incident on 18 August 1992 he located the steel steps and placed them in the pit to allow him to enter and exit the pit … I should say I formed a favourable impression of the [respondent]." (R592-3). [100] It will be noted that, although the trial judge preferred the respondent's testimony and thought him an impressive witness, the basis for rejecting the appellant's evidence was inconsistency between the witnesses' accounts. The trial judge does not appear to have thought those witnesses attempted to mislead the court. The conclusion is that their evidence was unreliable, not dishonest. This is important. In the absence of a suggestion of collusion or of some conspiracy, the fact that one employee and four former employees all testified to the existence of steps is very telling, especially when the appellant had only a brief period to marshal evidence to meet the respondent's new claim. That five witnesses could be found on such short notice, none of whom was accused of dishonesty, and all of whom could remember the stairs, is significant. [101] To understand the trial judge's concern about inconsistency it is necessary to examine the evidence. [102] Farne Hunt was employed by the appellant as its plant superintendent between June 1989 and October 1996. His employment corresponded in time with the respondent's. He was familiar with the service pit and said there were always steps in the workshop end of the pit. He could not "remember anyone on a regular basis jumping down the pit". He recognised the stairs depicted in exhibit 17 as being typical of steps manufactured by the appellant's employees to be bolted onto the side of LPG tanks. The steps were "utilised in the bottom of the pit to give them those two steps down … into the pit". He said that: "… all the time there's been a safe method of getting down there. There's always been a method of getting in that pit. Whether it was those steps on the day of this accident … I couldn't recall …". He said that "Most people would walk down there. They wouldn't jump down there … people would get in without using the steps, but not as a -- 26 of 31 -- 27 regular basis … it is very much easier to step down … than it is to jump down." (R204.12-.42) He was referred to a photograph of a different set of steps, apparently steel framed with wooden treads, and was asked whether he had an actual recollection of steps or had assumed steps were there. He said: "I didn't assume there were steps, I knew there were steps there all the time. Whether it be that step or that step, there were steps there all the time …What I'm saying is there was a pair of steps there all the time. Whether it be Exhibit 17 or whether it be that set there, that was the means of getting down." (R205.1-.18) In re-examination he said: "There were steps there all the time … I am saying there was a means of getting into that pit there all the time. Now, whether it be the steel ones, the wooden ones, the stool, I'm sorry, I can't recollect a stool. I can't recollect a stool … I can certainly recollect the steel steps and the wooden steps. I can't remember a stool". (R213.20- .32) [103] Patrick Dollison was employed as a workshop supervisor in 1992. He knew the respondent. He did not himself use the pit regularly but on occasions went in to help one of the mechanics. He said that "Every time I went into the pit there was [a set of stairs]." (R252.40) His recollection was that the stairs were steel framed with two wooden slats to form two treads. Mr Dollison recalled that later, he thought perhaps 1994, the steps placed in the pit were what he called "tank steps" which is no doubt the same type of step described by Mr Hunt and shown in exhibit 17. [104] Raymond Baines was a motor mechanic employed by the appellant as workshop supervisor for the years 1988 to 1992. He could recollect "a wooden type of stairs at the forward part [of the pit] where the front of the car would be." He thought they were wooden with a steel frame. In cross-examination he said that he could not remember ever jumping into the pit but could remember climbing out of the pit "on these stairs". (R267.35) He denied using a stool as a step. He explained "it was like a two position to get out. I remember getting out in a two position."(R267.50- .60) I take the witness to be describing taking two steps to climb out of the pit. He denied that the stairs were in place only after 1996. He said "those stairs seemed to be there all the time I was there", and he "... never saw them move ... They were always up the same end". (R269.18) He said: "… I can remember them being there all the time that that pit has been there … I remember the wooden parts because I had to climb out of them there … It wasn't a stool because it was a two position to get out, a two step … the ones I seem to recall were wooden steps, but they had sort of straight steel down the side instead of that type of set up [referring to exhibit 17]." (R268.1-.32) [105] Gordon Allan was employed by the appellant as a maintenance fitter and described himself as a friend of the respondent's. He commenced with the appellant in September 1990 and left in February 1995. He was required to work in the pit "Very, very, very, very occasionally". He could not remember "any detail … there was a step of some sort … [there was always a step] because you didn't have to climb out of it, you actually stepped up out of it, although it was a high step." (R328.45-329.1) -- 27 of 31 -- 28 [106] In cross-examination it was put that he had no recollection of the step and he answered: "There must have been a step … because it was like … I remember this deep and I would have had to have put my hands on the floor like this and actually climbed out. So there must have been a step because I don't ever recall doing that." (R332.20-.30) [107] Alan Black was a trades assistant employed by the appellant between early 1991 and late 1995. It was the respondent who trained Mr Black in his duties when he commenced employment. He worked in the service pit over a period of three years that he was employed as a trades assistant. This evidence was given: "… was there a means of getting in and out of the pit during the time you were there …? – Yes What was that …? – Wooden steps, when I first … started. And then after a period of time were there different sorts of steps? – Yeah. What were the different sorts of steps? – Galvanised steel ones. Now, were they there on each – either the wooden or the metal ones - … were they there whenever you had to go in or out of the pit? – … Yeah, the only time you moved them was to clean the pit out and then you put them back. … Did you ever see [the respondent] using them? – The steps? Yes? – Yeah. And were there occasions when you and he serviced vehicles together? – Yep." (R339.5-.38) In cross-examination he said: "… if you climbed out the front, up the two steps, … the last step was about this high, you had to climb out and then … you'd probably just lean on the car until the circulation [got] back into your feet …".(R342.28-.30) It was suggested that "the only stairs [he] ever saw, if there were stairs, were rickety old wooden stairs which were often very slippery". His answer was: "That wasn't the only ones I seen … I remember the steel ones as well. When I first started the wooden ones were there and then the wooden ones disappeared and then the galvanised steel ones were put there and they were about the same height. There was two steps." (R343.32-.45) [108] When asked by the trial judge if there was an hiatus in time between the wooden steps being removed and the metal ones inserted. He said: "I can't remember … it just sticks in my mind that they were there and then the metal ones because we used to make the steel ones up for the tanks. We used to make hundreds of them and they used to lie across the road until we needed them …". (R346.25-.30) Earlier he had said, in answer to a suggestion that the respondent had put metal stairs in the pit, that it may be so. He said "I don't know who put the steel steps there. I know the wooden ones went and then the steel ones appeared . . . the steps were always there …". -- 28 of 31 -- 29 [109] With great respect to the trial judge it appears to me that his Honour's reasons do not do justice to the evidence of the appellant's witnesses. His Honour did not reject it as dishonest but, accepting what they said, was unpersuaded that steps were in the pit at any material time. Four factors led to this conclusion: 1. two witnesses, Mr Allan and Mr Black, described a high step from the upper most tread to the top of the pit which was "consistent with there being at one stage a low wooden stool in the pit"; 2. the steps were not fixed to the wall of the pit; 3. there were different descriptions of the materials with which the steps were constructed; 4. the steps "disappeared". There is, with respect, no basis for finding that any of the witnesses ever used a stool as a means of stepping out of the pit. They all describe steps. The fact that the vertical height from the top tread to the level of the ground was greater than the vertical height between treads does not logically support a finding that the witnesses were mistaken when they said they used steps. Nor is the fact that the steps were not fixed of assistance in determining whether they were in the pit. It is true that if not fixed they might have been removed, but the evidence from all the appellant's witnesses was that they were always in the pit, except when removed for cleaning. Nor is there evidence that they disappeared. The evidence is that a set of steps, built from steel and wood, was replaced by another set, made of steel. The respondent did not say that steps "disappeared". He said there were no steps until he put them in the pit. The tale the witnesses told was coherent, consistent and corroborated. [110] Fact finding in a witness action is not a matter of arithmetic but there is manifest significance in the number of witnesses who can depose to a fact. Where there is no doubt as to the honesty of testimony, ordinarily one would conclude that the evidence of five witnesses who said steps were in place would outweigh the evidence of one witness who said they were not, when the matter is within their common experience and observation. One would need convincing reasons to prefer the minority testimony. In my view it does not appear in the inconsistencies remarked upon by the trial judge. The inconsistencies do not in truth emerge from their evidence. On the contrary it is a striking feature that all the witnesses remembered the stairs when first approached about the matter some years after they last used the pit. [111] The trial judge's assessment of the evidence which led him to prefer the respondent's account did not include a discussion of the considerations mentioned earlier: that the case of no stairs was made late and inconsistently with what had gone before. It follows, with respect, that his Honour did not properly weigh all relevant considerations. An analysis of these considerations was extremely pertinent to the critical fact, were stairs provided in the pit? Moreover, as just mentioned, the trial judge's reasons for rejecting the body of evidence adverse to the respondent do not support a preference for his evidence. This is a case in which the trial judge did not rely upon demeanour only for his findings, but essayed other reasons which are shown to be insufficient. The authorities earlier referred to establish that this court is not constrained in these circumstances from making its own consideration of the evidence. Indeed it is bound to do so. -- 29 of 31 -- 30 [112] No matter how poor a communicator the respondent may be, it is beyond belief that he would not have conveyed to his lawyers that he was injured because no stairs were provided, if that truly were how he came to be injured. Moreover, it is extremely unlikely that stairs would not have been provided, by one of the workman if not by the appellant itself, from the stockpile of "tank steps" lying so handily by. The respondent seems to have complained of difficulty in accessing the pit when the means of alleviating that difficulty was available in the articles manufactured by his workmates around him. It is similarly incredible that the respondent would have complained to the doctors that his problems were caused by squatting and kneeling for prolonged periods if in fact his injury was caused because he was not given steps to walk up. No matter how inaccurate doctors may sometimes be as chroniclers of their patients' histories, it is not possible that none of the medical reports would contain any hint that the respondent's injury was caused by lack of stairs, if this were really so. [113] In my opinion there were substantial reasons why the respondent's evidence should not have been accepted. There are no obvious reasons why the evidence of the appellant's witnesses should have been discarded. This is a case in which the respondent's evidence is "glaringly improbable" and contrary to the "overwhelming pressure" of the opposing testimony. [114] One further aspect of the respondent's evidence should be noticed having regard to what Mr Black said about the manufacture of hundreds of sets of steps which used "to lie across the road until we needed them". The respondent was asked about his discovery of the steps which he placed in the pit which occurred, he said, about a month before he left the appellant. When asked where he found them he said: "Oh, they were somewhere. I can't remember where." He did not ask anyone about steps but he "just went off on … a big search hoping that [he] might turn up some steps …". Having located the steps and put them into the pit, he found it much easier to get out. [115] A number of thoughts came naturally to mind. 1. It is difficult to understand how the respondent could not remember where he found the steps. They were a common article and lay plentifully nearby. 2. It is equally difficult to understand how the respondent could not appreciate that he hurt his leg because he was obliged to climb out of the pit without the assistance of stairs. When he put the steps in the pit it was much easier to climb out. 3. It is also difficult to understand why in the three and a half years he worked in the pit and experienced difficulty in getting in and out that it did not occur to him that a set of steps which could be fetched from across the road would be of enormous assistance. The same lack of insight afflicted all the other members of the appellant's workforce who used the pit. [116] One other matter strikes me as significant. The respondent's description, which appears in par [87], of how he left the pit on the occasion he was hurt is impossible. The respondent was 64 inches tall. He was standing in a pit the bottom of which was 41½ inches below ground level. He claims that he put his left leg "up out of the pit in a bent position on the ground" while his right leg remained on the bottom -- 30 of 31 -- 31 of the pit supporting his weight. Only 22½ inches of the respondent appeared above the top of the pit. If he was standing on the floor of the pit he could not have put one leg "in a bent position" on the surface. The manoeuvre was only possible if his right leg was on a surface higher than the bottom of the pit. The evidence of the appellant's witnesses points overwhelmingly to that surface being the top tread of the stairs provided. [117] A vignette in the evidence should be observed. It was put to the respondent in cross-examination (R116.35-.40): "… at all times whilst you worked there, and in particular on 18 August, there were a set of metal stairs comprising two treads with a checker plate tread. Do you agree with that? – Yeah, I remember them …". The trial judge appeared surprised at the answer. Counsel for the appellant chivalrously offered the respondent the chance to modify his answer, which he duly did. He said "it was after I twisted my leg that I found them and I put them there". What appeared to be a brief glimpse of the truth was lost. [118] In my opinion the finding that the appellant "failed in its duty of care to the [respondent] whether at common law or by statute by failing to provide proper steps were fixed in the pit … or … by requiring the [respondent] to work in the pit with the consequential need to have to try and climb out of the pit …" is founded upon an error of fact and should be set aside. The appeal should be allowed with costs and judgment entered for the appellant. -- 31 of 31 --