Burgess v Kerwin [1992] QCA 453

IN THE COURT OF APPEAL [1992] QCA 453 QUEENSLAND Appeal No. 197 of 1992 Before the Court of Appeal The Chief Justice The President Mr. Justice Derrington BETWEEN: COLIN BRUCE BURGESS (Plaintiff) Appellant - and - PATRICK MICHAEL KERWIN (Defendant) Respondent REASONS FOR JUDGMENT OF THE COURT Delivered the eighteenth day of December, 1992 MINUTE OF ORDER: Appeal allowed with costs. The Judgment appealed from is set aside (except the orders as to costs). In lieu therefore, judgment is given for the appellant in the sum of $69,673.24. Respondent to pay the taxed costs of the appeal. CATCHWORDS: Negligence. Contributory. Plaintiff found fifty per cent contributory negligent for injuries sustained in tree felling accident - whether such a high degree warranted given defendant's knowledge of plaintiff's defective technique and limited intelligence despite thirty years experience. Counsel: Mr D.O.J. North for the appellant Mr R.M. Stenson for the respondent Solicitors: Messrs. C.B. Darvall and Darvall for the appellant Messrs. O'Shea Corser and Wadley for the respondent Hearing date: 23/11/92 -- 1 of 10 -- IN THE COURT OF APPEAL QUEENSLAND Appeal No. 197 of 1992 BETWEEN: COLIN BRUCE BURGESS (Plaintiff) Appellant - and - PATRICK MICHAEL KERWIN (Defendant) Respondent REASONS FOR JUDGMENT OF THE COURT Delivered the eighteenth day of December, 1992 This is an appeal from a judgment delivered in the Trial Division on 27 August 1992 whereby the appellant was awarded $21,299.05 and the taxed costs of the action incurred up to and including 1st January 1991 pursuant to the Supreme Court Scale and thereafter according to the appropriate District Court Scale. The trial judge apportioned responsibility between the appellant and the respondent on the basis that each was liable for 50%. By his Notice of Appeal, the appellant seeks to have the judgment set aside and, in lieu thereof, to recover judgment for the full amount of the damages assessed by the trial judge. The damages to which the appellant is entitled arise out of an incident of 27 July 1987. While felling timber as an employee of the respondent, the appellant suffered a broken arm when trying to avoid a falling tree. As he ran away, the appellant tripped over a small stump some five or six feet from the base of the tree which he had been cutting, lost his balance and stumbled down a hill until he -- 2 of 10 -- 3 fell, breaking his arm. Stated shortly, the evidence was that the orthodox method of felling a tree is to make a scarf or belly cut in the tree on the side it is intended to fall towards and then to make a main or back cut on the other side at a somewhat higher level. It is important to leave a thickness of timber between the two cuts to act as a hinge to control the fall of the tree. When there is no sufficient hinge left between the belly cut and the back cut, the tree is effectively left freestanding on the stump, liable to fall in any direction, and vulnerable to being pushed in a particular direction by the wind. The appellant is a person of experience in cutting trees, but is lacking in intelligence. Overall, the trial judge did not form a high view of his credibility. Answers to interrogatories given by the him prior to the trial contradicted evidence which he gave at the trial. Further, his account of what occurred was contradicted by physical evidence which was apparent from photographs of the stump. The evidence indicated that the appellant had not only made a belly cut and a back cut but had also made a plunge cut into the side of the tree which may have further diminished the hinge. In addition, he attempted to use a wedge to dislodge his chainsaw which had become jammed when the tree commenced to fall in the opposite direction from that which he had anticipated. In the course of his judgment, the trial judge said: "The plaintiff's case rested upon the proposition that he had a demonstrated defective timber cutting -- 3 of 10 -- 4 technique, and that it was therefore incumbent upon the defendant, who had observed this, to instruct him properly on how to fell trees. This proposition has to be viewed against the background that the plaintiff gave evidence of over thirty years' experience in falling trees, that he had been employed on the basis that he was experienced and has agreed with the proposition that he would be surprised if any suggestion that some one should tell him that the way he cut trees was wrong. The effect of the defendant's evidence was that he had observed the results of the plaintiff's work. He said that he had spoken to the plaintiff about not removing a big enough wedge of timber in the scarf, and had told him to increase it size. The words used were probably to take a bigger belly. By that he had meant that the angle of the wedge was too acute which did not allow the tree to fall cleanly. He also agreed that the photograph showed examples of the plaintiff cutting the scarf more than half way through the tree, although there are other examples in the paddock where it was not. He agreed that it was not good practice to cut more than half way through because when the back cut was put in, there was a risk that no hinge of wood would be left to control the fall of the tree. He agreed that it was technically incorrect to leave no hinge because the tree would be left free standing on the stump and could be pushed in any direction by the wind. He said that he had seen examples of the plaintiff leaving no hinge because it was cutting the back cut right through to the scarf. The defendant said that his concern was not that the sapwood was being damaged when the tree fell but that the plaintiff was adopting unsafe practices by cutting scarfs more than half way through the tree in some cases. He was not certain what he had told the plaintiff to do but would have used a bush term such as to cut a bigger belly. He agreed that the plaintiff would not be quick to take up technical information." Later, the trial judge said: "In the present case the evidence establishes that the defendant noticed two defects in the plaintiff's technique notwithstanding the stated length of his experience. They were that the angle of the scarf was too acute and that on some trees he was cutting right through and not leaving a hinge. In the case of the first deficiency the defendant told the plaintiff to `take a bigger piece out of the belly' or some such phrase. This involved safety considerations because the tree might not fall cleanly if the angle was too acute. The second passed without -- 4 of 10 -- 5 comment although the defendant agreed that it was not good practice because it affected the control of the tree when it fell. Having noticed these faults and the plaintiff's technique, in my opinion it was the duty of the defendant to take adequate steps to insure that the practices were not persistent. In the present case the measures should have been adequate to take account of the fact that the plaintiff is somewhat intellectually challenged." Later, his Honour continued: "I am satisfied that the faulty technique of the plaintiff resulted in the tree becoming almost freestanding on the stump. The plaintiff had clear indications that the tree was finely balanced and that there was a distinct possibility that it would fall in the opposite direction to the direction that he had predicted. He was aware of the difficult location of the tree and of the terrain over which he would have to go to avoid the risk inherent in falling trees should the tree fall uphill. Notwithstanding these indications he did not in my opinion take adequate care for his own safety. Had the incorrect faulty technique not been used there would have been more control over the tree. However, in my opinion, notwithstanding the clear indication to which I have referred that the tree was not going to fall the wrong way, the plaintiff placed himself in a situation where he had to flee down the slope rather than make a more orderly escape. While the indications were known to him for a substantial period the urgency of his final escape is demonstrated by his evidence that he threw the chainsaw down the gully and followed it down at such a speed that after he had tripped over a stump he could not regain his balance. In my opinion he is guilty of contributory negligence. I propose to apportion liability on the basis of 50% to each party." On the occasion in question, the appellant made a number of mistakes. He misjudged the direction in which the tree was likely to fall, failed to identify and, if necessary, clear escape routes for himself irrespective of which way the tree fell, used incorrect methods to cut the tree, and then left it late to leave the scene as the tree was falling or about to fall, making it necessary for him to hurry down an unsatisfactory route with which he was -- 5 of 10 -- 6 unfamiliar. The trial judge's finding that the appellant's own negligence contributed to his injuries was justified, although it is another question whether such a high proportion of responsibility should have been attributed to the appellant. The respondent engaged the appellant as an experienced tree-feller, which he was, but by the time of the accident the respondent was also well aware of the appellant's lack of intelligence. The respondent was also aware of deficiencies in the appellant's technique, and that his capacity to understand instructions was limited. The trial judge quoted the following illuminating extract from the respondent's evidence: "You would have to be very, very plain and deliberate with him to explain things to him, wouldn't you ? Yes and then it was difficult. And then it was difficult to explain things to him ? Yes. Because he is a man who is not really intelligent over intelligent is he ? He is not very quick, is he ? No, he is not. So you would form this view that he was a person that you had to take time with to explain things to him ? Yes You might even have to repeat yourself, mightn't you, to explain things to him ? Yes. To make sure he took it on board ? That is correct." In these circumstances, the only instruction given by the respondent to the appellant, namely, to cut a bigger belly was, at best, ambiguous. It was capable of meaning that the belly cut should be wider at the outside and -- 6 of 10 -- 7 tapering inwards (as the respondent intended) or it might have been taken as a direction to cut the belly further into the tree, which would have exacerbated an existing defect in the appellant's technique of which the respondent was already aware. The respondent failed to make his direction clear. No instruction that the appellant always leave a sufficient hinge was given by the respondent. Further, paying due regard to the respondent's knowledge that the appellant was, on the one hand, experienced and, on the other, unintelligent, the respondent omitted to give the appellant directions concerning other safety measures, including the need to identify and, if necessary, clear appropriate escape routes before felling a tree. Finally, it is to be noted that the particular tree felled by the appellant on the occasion when he was injured was in a most difficult site, as the respondent knew, but he allowed the appellant to proceed without telling the appellant the respondent's view of the direction the tree was likely to fall, which was the opposite direction from that anticipated by the appellant. The Court is aware that it should not lightly review the trial judge's apportionment of liability: see, for example, Podrebersek v. Australian Iron and Steel Pty. Ltd. (1985) 59 ALJR 492. Nonetheless, giving due weight to the factors which influenced the trial judge and to the reasons why an appeal court should be slow to interfere, we consider that the apportionment selected by the trial judge cannot be sustained. The employer knew that there were particular -- 7 of 10 -- 8 dangers involved in felling this tree because of his assessment, which proved to be correct that the tree would fall in an upslope direction and also because it was placed in a position on a downward sloping ridge where the land fell away quite sharply on both sides. This meant that the appellant's retreat to safety if the tree commenced to fall in an upward direction would be down a steep slope in encumbered terrain. The employer knew also of the appellant's tendency to use a defective cutting technique which did not retain sufficient control over a tree but left it at a critical moment in something like a free-standing situation. It was in these circumstances incumbent upon the employer to mention his assessment of the direction in which the tree was liable to fall and to issue warnings of the need to take particular care. The judgment appears to accept that the appellant's assessment was that the tree would fall downhill and it was only when he was well and truly involved in his task and was not free to abandon it that he became aware that there was a danger that the tree might fall uphill. His attentions to the tree in this situation seem to have resulted in his making his exit from the vicinity of the falling tree a more urgent matter. The fact that the employer left the appellant without warning to face the dangers of which the employer was aware when the employer was also aware of the risk that a defective felling technique might be utilised seems to call -- 8 of 10 -- 9 for the attribution of a much greater share of responsibility than does any failure of the appellant in these particular circumstances to take sufficient care for his own safety. Conversely the trial judge's principal reasons for attributing negligence to the appellant were unconvincing. There has been insufficient allowance for simple errors of judgment and the difficult position in which he found himself when the tree did not fall and was precariously balanced. He could do little at that stage that was not dangerous and he was injured because he did his duty to fell the tree to remove the danger and because of the difficult terrain. His only negligence lay in his adherence to a defective felling technique in placing the cuts. This contributed to his injury in only a minor way. A proper apportionment of responsibility in our opinion is that the respondent is 90% liable and the appellant is liable to the extent of 10%. In the circumstances, the appeal is allowed with costs, the judgment appealed from set aside (except the orders as to costs) and in lieu therefore judgment is given for the appellant for 90% of the damages assessed ($120,935.62), ie. $108,842.05, less the sum of $39,168.76 refundable to the Workers Compensation Board, leaving the sum of $69,673.29. The respondent must pay the taxed costs of the appeal. -- 9 of 10 -- IN THE COURT OF APPEAL QUEENSLAND Appeal No. 197 of 1992 BETWEEN: COLIN BRUCE BURGESS (Plaintiff) Appellant - and - PATRICK MICHAEL KERWIN (Defendant) Respondent The Chief Justice The President Mr Justice Derrington Judgment of the Court delivered on the 21st day of December, 1992 APPEAL ALLOWED WITH COSTS. THE JUDGMENT APPEALED FROM IS SET ASIDE (EXCEPT THE ORDERS AS TO COSTS). IN LIEU THEREFORE, JUDGMENT IS GIVEN FOR THE APPELLANT IN THE SUM OF $69,673.24. RESPONDENT TO PAY THE TAXED COSTS OF THE APPEAL. -- 10 of 10 --