THE COURT OF APPEAL OF SOLOMON ISLANDS

NATURE OF JURISDICTION: 	Appeal from order of the High Court of Solomon Islands (Palmer J)	
COURT FILE NO: 	Civil Appeal No 4 of 1995	
DATE OF HEARING: 	23 January 1996	
DATE OF JUDGMENT: 	14 May 1996	
THE COURT: 	Kirby P; Muria CJ; Williams JA	
PARTIES: 	ZORA 

v 

EAGON RESOURCES DEVELOPMENT COMPANY (SI) LTD	
ADVOCATES: 		
Appellant	R P Lavery (Public Solicitor) 	
Respondent 	J C Corrin	
KEYWORDS: 	PRACTICE & PROCEDURE- reformulating case on appeal - failure to amend pleading at trial - whether alternative case should have been determined - held: (by majority): Retrial of alternative case ordered in exceptional circumstances - dispute as to way trial conducted - conflicting indications - absence of verbatim record - personal innocence of plaintiff - importance of case for both parties - degree of technical precision proper to conditions in Solomon Islands. 
MASTER & SERVANT - employer’s liability - affirmative duties of employers to promote safety and accident prevention.	
EX TEMPORE / RESERVED: 	Reserved	
ALLOWED / DISMISSED: 	Allowed	
PAGES: 	23	

PRACTICE & PROCEDURE - Court of Appeal (SI) - appeal against judgment in favour of employer in negligence action - alleged presentation of alternative case at trial not determined by primary judge (Palmer J) - legal representatives dispute the issues tendered at trial - Court record contains conflicting indications of whether the plaintiff relied on a case alternative to that pleaded in the original statement of claim - no application made for explicit amendment of statement of claim - whether alternative case sufficiently appeared during the conduct of the trial - whether failure to seek amendment of the statement of claim was fatal to plaintiff - requirements of justice in the exceptional circumstances - held: (1) (by the Court): A party will ordinarily be held to the manner in which the case is presented at trial and will not be permitted on appeal to present a different case involving new factual issues. Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1 applied; (2) (by Kirby P and Muria CJ; Williams JA dissenting): Nevertheless, in exceptional circumstances, to avoid injustice and to ensure the determination of important issues on the merits, an appellate court may, in an appeal, require the reconsideration of an arguably available alternative case which was not determined in the first trial; (3) The development of the notions of the affirmative duty of employers, particularly in hazardous activities such as tree felling, to provide effective safety instruction and to promote accident prevention rendered the injured party’s alternative case arguable such that it should be determined on its merits. Bankstown Foundry Pty Limited v Bristina (1986) 160 CLR 301 applied; (4) In the conditions of Solomon Islands and the realities of trial procedure, the precision and technicality which could reasonably be demanded would be taken into account as well as the way the trial was conducted in determining the significance to be attached to the failure to secure amendment of the pleadings; (5) Accordingly, a retrial should be ordered, but limited to the alternative case and not involving redetermination of the issues found against the plaintiff in the first trial. 

MASTER & SERVANT - employers’ liability - duty of care - duty to establish a safe system of work - duty to provide adequate instruction - duty actively to promote the safety of employees and accident prevention - relevance of hazardous work in timber felling - held: (per Kirby P and Muria CJ): (1) The standards which may be expected of employers in timber felling in Solomon Islands will necessarily vary according to the circumstances but the extension of duties affirmatively to promote safety and to avoid accidents to employees is part of the law of Solomon Islands. Bankstown Foundry Pty Limited v Bristina (1986) 160 CLR 301 approved; (2) The greater the risk of injury to employees, the larger is the duty of employers to provide an effective and safe system of work and effective supervision of employees including against risks of injury in the misguided pursuit of the employer’s interests. 

Safety at Work Act 1982. 

ORDERS 

1. Appeal allowed; 

2. Set aside the judgment entered by the High Court; 

3. In lieu thereof, order that the proceedings be returned to the High Court for consideration of the “alternative case” of the appellant; 

4. Reserve to the Judge of the High Court conducting the further hearing liberty to allow the parties, or either of them, to adduce further evidence relevant to the “alternative case”; 

5. Order the respondent to pay the appellant’s costs of the appeal; and 

6. Order that the costs of the first trial abide the outcome of the second trial. 

JUDGMENT

KIRBY P AND MURIA CJ: Before the Court is an appeal whereby Mr. Kevin Zora (the appellant) challenges a judgment entered in the High Court of Solomon Islands (Palmer J) in favour of Eagon Resources Development Company (SI) Limited (the respondent) 

Also before the Court is an application for leave to cross-appeal on the part of the respondent. This concerns the costs order made by the primary judge in disposing of the appellant’s action. 

Injury to the worker 

It is necessary to say something about the accident giving rise to the litigation. We can take the facts from the reasons of Palmer J which were admirably clear. His Lordship’s reasons contained credibility findings which the appellant properly conceded that he could not contest in this Court. See eg SS Hontestroom v SS Sagaporack [1927] AC 37 (HC), 47; Abalos v Australian Postal Commission (1990) 171 CLR 167, 178; Devries & Anor v Australian National Railways Commission & Anor (1993) 177 CLR 472,477. 

The appellant derives from the village of Vurango in Choiseul. He was engaged by the respondent in early 1990 as a member of a timber-cutting crew for chainsaw operations. After a period of about one or two weeks he was transferred to work as a log-checker. Whilst employed as a log-checker/counter, on 2 May 1990, he was profoundly injured by a falling tree trunk which struck him on the back instantly rendering him paraplegic. He has been left with a permanent disability from the waist down. Within the ambit of present scientific and medical knowledge, he will never recover from his disability. He was twenty-nine years of age at the trial. In an instant, his life was profoundly changed. 

The appellant’s instructions to his lawyers, and the case on the facts which he advanced in his statement of claim and in his oral evidence at the trial, was extremely simple. He contended that he had been instructed by a supervisor, Mr. Billy Kaukui to fell the tree in question. It was the cutting of that tree which snagged another, causing a branch of the other to break off. This fell on the appellant’s back, causing his injuries. The simplicity of the appellant’s case as pleaded can be taken from the first paragraph of his statement of claim: 

“The plaintiff is aged 24 years and was on 2/5/1990 employed by the defendant as an assistant on a Chain-Saw gang. He had been employed for less than 2 months and received no training in general safety or the use of a Chain-Saw. On this day the plaintiff was told by one BILLY to cut down a tree for the first time. He was not instructed or supervised. A supervisor STEPHEN KONA was 20 yards away and BILLY went to talk to him whilst the plaintiff felled the tree. A branch from another tree caught up in vines was brought down and struck the plaintiff causing very severe injury. 

This accident occurred as a result of the defendant’s negligence and/or breach of statutory duty.” 

If such a case, as pleaded, had been made out at trial it would have been a powerful one to establish the liability of the respondent both at common law and under the Safety at Work Act (the Act). The use of chain-saws in the cutting of trees is self-evidently a hazardous and risky operation. Judicial notice may be taken of that fact. The risks are so plain that the need for proper preparation, instruction, training and supervision is manifest. If, as the appellant asserted in his statement of claim (and in his oral evidence), as an inexperienced worker, he was put to the task of using a chain-saw and if he was directed to cut down a tree for the first time without proper training and supervision, a prima facie case of negligence and of breach of statutory duty by his employer would be established. The employer would be liable for the foreseeable consequences of his inexpert performance of the task. 

Unfortunately for the appellant, his version of the facts was contested by his fellow workers. Their evidence suggested that, upon his initial engagement by the respondent, the appellant had been found to be unsuitable for cutting trees and had thus been assigned to the task of counting the logs felled by trained cutters working in a number of teams upon whose product the appellant was obliged to report. 

The appellant, having been judged “unsuitable” for the position of a chain- saw operator, and designated as a log counter, it was the respondent’s case that, far from having been instructed to cut the tree which led to his injury, the appellant had been specifically and repeatedly forbidden to do so both by the supervisor (Mr. Billy Kaukui) and by the chain-saw operator (Mr. Stephen Kona) 

The evidence of the foregoing fellow workers was affirmed in important respects by another employee, Mr. Victor Guso, whose evidence the primary judge felt to be most reliable because he was no longer working for the respondent and was thus beyond any interest to exculpate the respondent. As described by Palmer J: 

“He said that Billy did not tell the plaintiff to do anything. He was also not aware if Billy Kaukui gave anything to the plaintiff. After he had done cross-cutting of the logs, the plaintiff wanted to cut the tree near the road. The plaintiff then took the chain-saw and cut the tree standing near the road. He says that the operator (Steven) (sic), did not want that tree to be cut as it would block their road. The plaintiff however insisted and took the chain saw from him. Victor says that he tried to stop the plaintiff three times but he went ahead and cut the tree. He also explained that he did not argue with the plaintiff as he was more senior to him in terms of having worked together with the company.” 

Decision of the primary judge 

It was in these circumstances that Palmer J expressed what he took to be the issue presented to him at the trial for resolution: 

“There has been no issue raised or submission made, that if the Defendant’s submission on this point is accepted by the Court, then that is virtually the end of the case. In case there is doubt, let me make it clear that the issues of fact relating to the question whether the plaintiff was instructed by Billy Kaukui or the Chain-Saw Operator, to fell that tree are crucial to the claim for negligence and breach of statutory duty. If I find in favour of the plaintiff, then I will go on to consider whether the claims for negligence and breach of statutory duty have been made out as against the defendant. If not, then that is the end of the case.” 

Preferring as he did the testimony of the respondent’s other employees to that of the appellant, Palmer J resolved various factual issues in the competing versions (which do not need to be elaborated). He then concluded: 

“……..I find the evidence of these two witnesses [Mr. Kaukui and Mr. Gusu] consistent on the material aspects ... Victor’s evidence in particular is convincing in that there was a lot of detail provided which could not normally be known if he was not telling the truth .... It is also important to put into context what was said by Victor ….. in examination-in-chief. He said: 

‘After I had cross-cut the logs, he took the chain-saw and cut the three standing near the road. Operator stopped that because it would shut our road. But Kevin Zora wanted to cut the tree. He took my chain-saw. I stopped him not to cut the tree. He just took it and cut the tree so I did not say anything.’ 

Nowhere does it say that the operator or the supervisor had told the plaintiff to cut the tree or any other tree. It is my view that the suggestion put [for the plaintiff] with respect is too far fetched to be accepted as likely or probable. 

I am therefore not satisfied that the plaintiff has proven on the balance of probabilities that he had been instructed to cut the tree by the supervisor or the chain-saw operator and that thereby the defendant was vicariously liable for the negligent actions of its servants and/or agents; and for breaches of statutory duty to provide adequate safety measures and training for its employees. The action therefore is dismissed.” 

Appeal to the Court of Appeal 

It is against the foregoing determination that the appellant has appealed to this Court. His notice of appeal asserts, relevantly, that the primary Judge: 

1. Failed to take into account submissions and evidence that the respondent was negligent and/or in breach of its statutory duties in that it failed to have in place a safe system of work; 

2. Failed to take into account evidence and submissions that the respondent failed to have in place adequate supervision of its workers; 

3. Failed to take into account evidence and submissions that the respondent had no adequate system of training in place; and 

4. Failed to address the foregoing and thereby failed to consider the suggested breach of statutory duties alleged against the respondent. 

Amongst the orders sought by the appellant, as amended, by leave, at the hearing of the appeal, was an order: 

“(ii) That the High Court be ordered to consider the evidence and submissions made to determine whether the respondent was in breach of the common law or statutory duties.” 

In order for this Court to require such further consideration to be had by the High Court it would be necessary, in the circumstances of the case, to allow the appeal, set aside the judgment in favour of the respondent and to remit the matter for reconsideration at a retrial. 

Arguments of the parties 

It is at this point that we reach the source of the problem presented by this appeal. By his counsel, the appellant contended that at all times he had an “alternative case” for consideration by the High Court. His case, so it was argued, relied upon: 

1. The casual acts of negligence on the part of fellow employees of the respondent (for which the respondent would be vicariously liable) in the directions which they gave and the supervision they failed to give when requiring him to cut the particular tree as alleged; or 

2. The negligence and breach of statutory duty on the part of the employer itself for failing to put in place, and maintain, a safe system of work which included warnings and safety instructions to an employee engaged in or in connection with timber felling; the failure of the employer to provide adequate supervision in such operations and to ensure to the appellant as safe a place of work as could reasonably be attained in an employment activity necessarily involving some risks. 

For the respondent, on the other hand, the case at trial was quite different. It was limited to the one identified by Palmer J in his reasons. It was confined to the contention that an inexperienced, uninstructed, inexpert worker had been directed to cut a particular tree with a chain-saw. According to the respondent, the case about want of safety instruction (and equipment), lack of supervision and failure to provide a safe place of work was entirely consequential upon the asserted direction alleged to have been given to the appellant which Palmer J disbelieved. Once the giving of that direction was rejected, the whole edifice of the appellant’s case at trial collapsed. The appellant was confined to the way in which the case had been presented at trial. He ought not to be allowed to change that case on appeal. Support for this principle, stated as a general proposition, can be found in legal authority in many countries of the Commonwealth of Nations. Some are conveniently collected in Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1, 7. In University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 (HC), 483, the High Court of Australia said: 

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle, to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.” 

In support of its interpretation of events, the respondent pointed to the following considerations: 

(1) The actual terms of the statement of claim (referred to above); 

(2) The statement of the appellant’s case by the learned primary judge who delivered his judgment promptly when the matters in issue at the trial would still have been fresh in his mind; 

(3) The learned judge’s apprehension of the case at trial coincided with that of counsel for the respondent who had appeared at the trial and asserted to this Court that it was so; and 

(4) Had it been the intention of the appellant to present an alternative case, it might have been expected that leave would have been sought for the appellant to amend his statement of claim to propound the alternative case. This was not done. Furthermore, evidence would have been adduced as to safety practices and systems generally upon the hypothesis that the primary case advanced by the appellant at trial, that of a wrongful direction, was rejected. This was also not done. Instead, the case was permitted to proceed to judgment on the statement of claim as originally pleaded. 

We acknowledge the considerable force of these submissions. On the other hand, we are obliged to give weight to the arguments for the appellant that it was always his counsel’s intention to advance an alternative case; that this sufficiently emerges from a fair reading of the record; and, in the circumstances, that the alternative case should be considered and resolved to avoid a risk of serious injustice. In favour of this construction of what was in issue at the trial may be noted: 

1. The statement of claim necessarily reflected the appellant’s instructions to his lawyers (ie that he had received a specific direction to cut the offending tree). But, in terms, at least on a broad reading, the statement of claim and particulars were compatible with a claim against the employer, framed more generally, alleging failure to provide a safe system of work, a proper system of training and adequate supervision of persons in the position of the appellant. Certainly all of these defaults are particularised; 

2. Counsel for the appellant, who likewise appeared at the trial, asserted that it was always his intention to present the alternative case and that he considered that he had done so on behalf of the appellant; 

3. At the beginning of the closing submissions for the appellant at the trial, as shown in the record (p 30), counsel made it clear that the case was based upon “two separate categories”: 

“1. Re-what happened on the day. 

2. Safety re working environment.” 

Upon this basis, however imperfectly, it had been indicated that the appellant was seeking to advance an alternative case. The appellant should therefore not be deprived of the entitlement to have that case resolved, one way or the other; and 

4. At the trial, the appellant had called as a witness Mr. Josiah Thegmamana, an officer of the Labour Division of the Ministry of Commerce. His evidence (which was objected to by the respondent) was addressed to the general safety systems of the respondent which were observed by this officer when he conducted a site inspection of the respondent’s operations in March 1991, ie ten months after the appellant’s accident. Mr. Thegmamana’s evidence was put forward as proof of a generally unsafe working environment and to establish that, even after the shocking injury suffered by the appellant, the respondent had not put in place systematic safety training for workers such as the appellant; had failed to identify the particular hazards of the workplace for tree cutting teams; had failed to supervise the employees in an effective and decisive way; had failed to draw to notice the relevant safety regulations; and had failed to observe a culture of safety for the protection of the life and limb of vulnerable workers in its employ. For the appellant it was put that the fact that this situation persisted even after he had suffered the profound injuries sued upon, indicated, clearly enough, that the same conditions had probably existed prior to the appellant’s injury. It helped to explain the generally lax working conditions in which that injury had come about. It was put that this evidence was of a general character. It concerned the overall system, supervision and safety culture of the respondent. It was clearly not confined to the acceptance that the appellant had been directed to cut a particular tree with inadequate instructions. It had thus adequately signalled, both to the judge and to the respondent, that a wider, more general case was being relied upon at the trial by the appellant. 

Enough of the respective arguments of the parties has been stated to demonstrate that each has force. It is difficult for this Court, without a verbatim transcript to resolve the contest with certainty, particularly because it has permitted each of the counsel, who represented the parties at the trial, to recount their own recollections and impressions and these were likewise in conflict. 

Requirements of justice in an exceptional case 

In a different jurisdiction, or in this jurisdiction in different litigation as between different parties, it could be just and lawful simply to accept that the primary judge had correctly identified the issue for trial, resolved it and, on that basis, had dismissed the claim. Courts such as this must be vigilant to uphold the finality of litigation and to protect judgments lawfully entered even if, in the particular case, the appellate court has a nagging doubt that some injustice may have occurred in the way the case was presented at trial. See eg Merdanic v Pongrass Operations Ply Limited, Court of Appeal (NSW), unreported, 8 November 1994. In criminal appeals, courts in England, Australia and elsewhere in the Commonwealth have lately become more vigilant to ensure against miscarriages of justice which may occur by reason of what seems to have been serious professional legal oversight or even incompetence, at the trial. See eg R v Ensor [1989] 1 WLR 497 (CA), 501; [1989] 2 All ER 586; Re Knowles [1984] VR 751 (VFC); R v Birks (1990) 19 NSWLR 677 (CCA), 685. The extent to which this protective principle, developed for criminal appeals, extends to civil litigation is controversial. See Chouman v Margules, Court of Appeal (NSW), unreported, 24 June 1993; Skrzypkowski v Silvan Investments [1963] 1 WLR 525 (CA); Jeffrey v Jeffrey (1931) 31 SR (NSW) 535 (FC), 542. This is not a proper occasion to explore the question. 

Nor do we wish to infer that the representation of the appellant at the trial before Palmer J was incompetent. Such representation was provided by the Public Solicitor, the appellant being indigent. The trial appears (as has been the appeal) to have been presented with ordinary care. But the fact remains that, to the end of the trial, it was not made clear to the primary judge that the appellant was advancing a completely different, and alternative, case which he was asserting could sustain a judgment in his favour even if the judge were to reject the evidence that he had been directed to cut a particular tree, although not trained for that purpose. Certainly, the alternative case for the appellant was not made clear, as it might have been (and in other jurisdictions would have been) by a frank application for amendment of the appellant’s statement of claim before the end of the trial. That would have been the proper course. In considering the consequences for the appellant to be attached to a failure by the appellant’s representative to seek such an amendment, this Court cannot overlook the realities of trial procedure in Solomon Islands and the precision and technicality which can reasonably be demanded of public legal representation of indigent citizens. We are therefore in no way critical of Palmer J. His Lordship approached the matter in the way that he did for reasons that are perfectly understandable. 

Conclusion: a rehearing of the “alternative case” 

It would be a misfortune if a case such as the present, of great importance to each of the parties before the Court, were to be resolved on the basis of the failure of the appellant’s representative at the trial to seek an amendment of the pleadings or upon this Court’s resolution of the conflict about the real issues presented at trial, derived from a record which is necessarily imperfect. 

It is for that reason that we have concluded, in the exceptional circumstances of this case, that the proper course, and the one which is safest and most likely to accord with the justice of the case, is to require that the matter be reconsidered by the primary judge. The alternative case may then be explicitly evaluated and determined according to law. 

The appellant himself is, of course, personally innocent of any failings on the part of those representing him to make clear the alternative basis of his claim asserted before us. He put himself into the hands of qualified lawyers. Especially in his profoundly injured state, and having regard to his rudimentary education, past experience and current capacities, he was entitled to look to his legal representatives to put his case as best it could be put for determination according to law by the High Court. 

An overly rigid application of rules of procedure should always be avoided. Even when stating the general principles, as it did in Metwally, the High Court of Australia acknowledged that there would be “most exceptional circumstances” where a different result would follow. See above, at 483. We think that this is such a case. We are affected by the assurances given to the Court by the legal representative of the appellant as to what he intended to do, and thought that he had done. We do not consider that the appellant’s entitlements at law (if any) should stand or fall upon an overly nice evaluation of the pleadings or the conduct of the trial. We are affected, in this regard, by the development in recent years of the common law as it concerns an employer’s liability to provide, actively, for accident prevention and safety instruction of workers. See eg Bankstown Foundry Proprietary Limited v Braistina (1986) 160 CLR 301. In that case, the High Court of Australia (Mason, Wilson and Dawson JJ) said: 

“It is undoubtedly true ... that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectation of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman ... ‘Accident prevention is unquestionably one of the modern responsibilities of an employer.’ However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v Broken Hill Pty Co Ltd; Da Costa v Cockburn Salvage & Trading Pty Ltd.” 

We see no reason why the principles stated by the High Court of Australia in Braistina should not apply to the exposition of the common law of employers’ liabilities in Solomon Islands. Of course, the circumstances will differ in each case. What may reasonably be expected will doubtless vary in accordance with the particular factual circumstances proved. But, especially in highly hazardous employment activities such as timber felling, it is not unreasonable that employers should be expected, and required by law, to take active steps to protect employees so far as they reasonably can. This may be done by providing adequate instruction in accident prevention and safety observance and by providing adequate and competent supervision sufficiently strictly enforced to minimise mishaps. In the rustic circumstances of the work of tree cutting teams, operating generally in remote areas of this country, left largely to their own devices in bushland, it would not be sufficient for the employer to rely upon the specification of employment duties of a particular classification or even upon instructions forbidding engagement in particular work outside designated duties. Against the possibility that the employee might take it into his head to engage in other activities, in a misconceived, and even forbidden, pursuit of the employers’ interests, warnings must be given, precautions must be taken and rules of safety must be enforced. Thus, in the present case, the appellant’s actions in cutting the tree which occasioned his injuries could arguably be seen in such a light. The appellant himself was to derive no benefit from the cut timber although we do not overlook the possibility that his persistent desire to use the chain-saw might have an explanation which is to be traced back to the initial rejection of his attempts to qualify as a chain-saw operator. 

It is important to make it clear that, by requiring reconsideration of the “alternative” system case, we are not indicating our view, one way or the other, as to how that case should be resolved. It is enough that we consider that the case should be determined, on its merits, with any amendment of the statement of claim allowed and any additional evidence which the primary judge allows either side to call, in order to make clear what was, at the least, left in doubt at the first trial. The judge may then conclude that such was the determination of the appellant to use the chain-saw, although untrained and forbidden to do so, that no amount of safety instruction or supervision would have prevented an accident of the kind which occurred. Certainly, no helmet or like equipment would have prevented the injury to the appellant’s back. On the other hand, the primary judge might conclude that the appellant has made out a case of a general failure on the part of the respondent to attend to the particular hazards of this form of employment, including the hazard that employees in the position of the appellant would sometimes breach their instructions whilst remaining generally within the course of their employment and pursuing, in a misconceived, way the employer’s interests. The judge might conclude that all employees, including the appellant, should have been given at least rudimentary safety instructions and that equipment to prevent snagging of nearby trees should have been provided to protect those working in teams, such as the appellant. Or he might conclude that an adequate system of supervision would have prevented untrained employees from ever having access to chain-saws so that operators of such saws were under the clearest instruction to take personal responsibility for the saws and to prevent other employees, however senior, from using them until properly trained for that purpose. These are the kinds of matters which the “alternative case” will require to be addressed. In the circumstances and for the reasons which we have described, they were not considered by Palmer J in the first trial. 

It will be for his Lordship, considering the appellant’s “alternative case” to decide whether the appellant is entitled to succeed or not. Clearly enough, if the appellant does make out a case of negligence at common law or breach of the statute, a substantial defence of contributory negligence would arise from the finding that he had wilfully breached instructions not to use the chain-saw and seemingly did so only after thrice being refused access to it on the day of his injury. The assessment of contributory negligence must, like the determination of the liability of the respondent, be reserved to the judge conducting the retrial. It is enough for us to observe that the appellant’s conduct, found by Palmer J in the first trial, was not such as to amount to momentary inadvertence on the part of the worker. Many authorities establish that such momentary inadvertence does not constitute contributory negligence on the part of the worker otherwise pursuing his employer’s interests. But this was deliberate conduct, wilfully pursued and, as found, contrary to explicit instructions. 

We also make it plain that we would expect that the second trial would be heard by Palmer J in the High Court and that it would not be open to either party to challenge, in that second hearing, the dismissal of the original case of the appellant that he was directed to cut the particular tree which led to his injury. The “alternative case” will be confined, on the rehearing, to the liability of the employer both at common law and by statute, upon the premise established by the finding in the first trial that the worker was not directed to cut the particular tree but did so in the circumstances which Palmer J found. The question will then be posed whether, notwithstanding the rejection of the account of the appellant, the respondent was still negligent or in breach of the Act for failing to establish and maintain in place a safe system of work; for failing to provide adequate supervision of its workers; and for failing to afford adequate training to workers such as the appellant of a kind which would probably have prevented the happening of the event which caused the appellant’s profound injuries. Obviously, the more perilous the employment activities and the greater the risk of injury which they present, the higher is the employer’s duty to take affirmative steps for worker safety and accident prevention. 

Cross-appeal 

As a matter of law, the foregoing conclusion in the appeal relieves us of the necessity to consider the respondent’s application, as cross-appellant, for leave to cross-appeal. However, for completeness, we record that the cross-appellant’s objection was to the costs order made by Palmer J in dismissing the appellant’s action. His Lordship said: 

“In view of the plaintiff’s disability, it is my view that no order for costs should be made.” 

The cross-appellant contended that, having succeeded in the action, it was entitled in the ordinary way to have an order for costs in its favour. Whether such an order would be enforced or could, as a matter of practicality be enforced, was distinct from the respondent’s prima facie legal entitlement to have it. Considerations such as judicial benevolence (Kierson v Joseph L Thompson & Sons Limited [1913] 1 KB 587 (CA), 589) or sympathy (Bevington v Perks & Anor [1925] 2 KB 229 (CA), 231) are not properly relevant to the exercise of a judicial discretion to provide for costs. 

With respect to Palmer J, we are of the view that the arguments of the cross- appellant have merit. Whilst we are mindful of the considerations which his Lordship had in mind and are conscious of the discretionary character of such a costs order, we find it difficult to justify a departure from the ordinary rule only because of the worker’s disability, 

In the way in which we would dispose of the appeal, however, it is unnecessary finally to determine this point. Because the orders at the first trial are set aside, the costs provision likewise falls and will now abide the outcome of the second hearing. 

Orders 

We favour the following orders: 

1. Appeal allowed; 

2. Set aside the judgment entered by the High Court; 

3. In lieu thereof, order that the proceedings be returned to the High Court for consideration of the “alternative case” of the appellant; 

4. Reserve to the Judge of the High Court conducting the further hearing liberty to allow the parties, or either of them, to adduce further evidence relevant to the “alternative case”; 

5. Order the respondent to pay the appellant’s costs of the appeal; and 

6. Order that the costs of the first trial abide the outcome of the second trial. 

Certified a correct copy of the reasons of the Honourable the President and Chief Justice herein. 

M D KIRBY, PPRESIDENT
J B MURIA CJ

…………………………………………………………………..

JUDGMENT - WILIAMS JA

I have had the advantage of reading the reasons for judgment by Kirby P and Muria CJ and though I differ from them in the result I need not re-state the facts and circumstances giving rise to this appeal as they are amply circumstances stated in those reasons. 

There is no doubt that the appellant’s primary case as pleaded and as presented at the trial was that he had been specifically instructed to fell a tree on the day in question and that in the course of his so doing he had sustained his injuries. As Kirby P and Muria CJ have pointed out, that case was expressly rejected by the learned trial judge, and there was clear evidence to support that conclusion. The overwhelming evidence was that, far from being instructed to fell the tree, the appellant was instructed (or at least advised) not to cut down the tree. Fellow workers endeavoured to prevent him taking the chainsaw but he persisted and it was his own obstinacy which resulted in the injury. 

I am also prepared to accept that at trial the plaintiff’s case was put forward on two bases. In so concluding I have placed great reliance on the notation made by the learned trial judge recording the submissions of counsel for the appellant: 

“1. Re what happened on the day. 

2. Safety re working environment.” 

That indicates that some alternative argument was probably addressed to the court. However, neither the pleadings, the record of proceedings at trial, nor the reasons for judgment of the learned trial judge suggest that the alternative case was predicated on a finding that the appellant acted contrary to specific instructions. It is readily understandable that counsel for the appellant at trial could have been concerned that the evidence did not establish a specific instruct ton to fell the tree, and wanted to cover the situation where, given the nature of the working conditions and the system of work, the appellant may have believed, albeit wrongly, that he was being instructed to fell the tree or at least being encouraged by his working environment to do so. 

Much reliance during argument on the hearing of the appeal, and this is reflected in the reasons for judgment of the majority, was directed to the lack of instruction on matters of safety generally. But the appellant does not succeed merely because he establishes that the employer was grossly remiss in providing a safe system of work or giving adequate instructions on safety measures. Before the appellant can succeed he must show that the employer’s failure in that regard was a cause of the injury being sustained; and that must be done, on the findings of fact in this case, in the light of the appellant’s persistence in carrying out the task despite attempts by his co-workers to prevent him so doing. 

When that issue was raised with counsel for the appellant during argument he formulated the appellant’s case along these lines. The employer was under an obligation to put in place such a safe system of work, and to so instruct all employees on matters of safety, that the desire to cut down a tree would not have come into the mind of the appellant in the first place. It would only be if such a proposition was established by evidence that the appellant would have a case in negligence against his employer given findings of fact made by the learned trial judge. 

That alternative case was not, in my view, raised (or even suggested) either by the pleadings or during the trial. It is, as I see it, a new case which is being forward now for the first time. Further, it is a new case inconsistent with that relied on at trial. 

Whilst one can sympathise with the appellant given his present physical state, and whilst one ought not adopt an unduly strict approach in determining on appeal the way in which a trial was conducted, there is good reason for putting an end to litigation and not allowing a party, unsuccessful at first trial, a second chance based on another view of the facts. 

If there were to be any further hearing of this matter it would amount to a trial on facts the antithesis of those originally pleaded and litigated. The appellant’s case at any further trial would be along these lines. I was not instructed to fell the tree, however I had a desire to do so. My fellow workers were successful in preventing me in the first instance from fulfilling my desire, but I persisted and was ultimately able to use the chainsaw to fell the tree. In those circumstances I was injured. My employer was negligent in failing to so instruct me with respect to the dangers of tree felling that such a desire would never have entered my head and I would not have acted as I did. 

When the case is put that way it becomes obvious, in my view, that it could not have been raised at the first trial consistently with the pleadings and the evidence. Having considered the authorities referred to by the President and Muria CJ I have come to the conclusion that this is not a case where the appellant should be allowed a retrial in order to raise an entirely new case. 

In the circumstances the appeal against the dismissal of the action should be dismissed. 

As there will be a retrial in accordance with the views of the majority, I should record my complete agreement with the observations in the majority judgment on the issue of contributory negligence. The persistence of the appellant in proceeding to cut down the tree despite the attempts of his fellow workers to dissuade him means that his conduct cannot be classified as momentary inadvertence to the potential danger. There must, in the circumstances, be a finding of significant contributory negligence. 

The President and Muria CJ have dealt briefly in their reasons with the cross-appeal on the question of costs. Reference is there made to authorities which, in my view, indicate that, with respect to Palmer J, he erred in the exercise of his discretion in refusing to allow the employer its costs of the action. 

I would dismiss the appeal with costs. I would allow the cross-appeal, set aside the order for costs at trial, and in lieu thereof order that the plaintiff pay the defendant’s costs of and incidental to the action to be taxed. 

Certified a correct copy of the reasons of Williams JA herein 

Williams JA