Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Bunnings Group Ltd v Borg [2014] NSWCA 240
• Hearing dates: 17 July 2014
• Decision date: 28 July 2014
• Before: Basten JA at [1]; Barrett JA at [2]; Leeming JA at [3]

Decision

1. Appeal allowed and cross-appeal dismissed.

2. Set aside the orders made by the District Court on 19 August 2013 and order that there be a retrial.

3. Respondent to pay the appellant's costs of the appeal and the cross-appeal.

4. Respondent to have a certificate pursuant to the Suitor's Fund Act 1951 (NSW).

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - customer injured while in hardware store by timber falling on him - inconsistent testimonial and documentary evidence as to how accident happened - verdict in favour of customer - trial judge relied on photograph of reconstruction of incident - failure to grapple with inconsistencies in evidence - failure to make clear findings of breach and causation - failure to address Civil Liability Act 2002 (NSW) ss 5B, 5C, 5D and 5E - verdict set aside and retrial ordered
• Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5C, 5D, 5E, 16; Suitor's Fund Act 1951 (NSW); Uniform Civil Procedure Rules 2005 (NSW), r 51.53
• Cases Cited: Blacktown City Council v Hocking [2008] NSWCA 144; [2008] Aust Torts Rep 81-956; Coote v Kelly [2013] NSWCA 357; Mitchell v Cullingral Pty Ltd [2012] NSWCA 389; MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; 73 ALJR 306; Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816; Woolworths Ltd v Ryder [2014] NSWCA 223; Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277
• Category: Principal judgment
• Parties: Bunnings Group Ltd (Appellant/Cross-Respondent); Alfred Borg (Respondent/Cross-Appellant)
• Representation: Counsel: GM Watson SC / JC Sheller (Appellant/Cross-Respondent); R Sheldon SC / PN Khandhar (Respondent/Cross-Appellant); Solicitors: Gilchrist Connell (Appellant/Cross-Respondent); Brydens Compensation Lawyers (Respondent/Cross-Appellant)
• File Number(s): 2013/279351

Decision under appeal

• Date of Decision: 2013-08-19 00:00:00
• Before: Robison DCJ
• File Number(s): 2012/263033

Judgment

1 BASTEN JA: I agree with Leeming JA.

2 BARRETT JA: For the reasons stated by Leeming JA, there is no alternative in this matter but to order a new trial on all issues. Orders should be made as his Honour proposes.

3 LEEMING JA: The appellant (Bunnings) occupied premises in Dural, Sydney, which it operated as a hardware store. On 24 June 2011, the respondent, Mr Alfred Borg, attended that store to purchase some timber sleepers, perhaps 14. Each sleeper had dimensions of 100mm x 200mm x 2400mm. Each weighed some 30 kilograms or more. Mr Borg owned his own vehicle, a utility, with an aluminium tray whose sides and rear were open. He drove the vehicle into the loading dock. At some stage, a forklift with a bundle of about 20 sleepers, operated by a Bunnings employee, Mr Martin Said, was driven up to the rear of Mr Borg's vehicle. The forklift stopped perpendicular to the utility, so that the timber sleepers could be loaded onto the tray. Another Bunnings employee, Mr Chris Palmer, was assisting with loading the sleepers, but was for a short period of time distracted from doing so. At that time, some of the sleepers fell, one striking Mr Borg's left foot. He sued Bunnings for negligence, and obtained a verdict in his favour in the amount of $106,558.

4 Bunnings' appeal is as of right, in light of the amount of the judgment. Bunnings challenges the findings of liability and quantum. Mr Borg has filed a notice of contention, seeking to sustain the finding of liability, and a cross-appeal, seeking a larger amount of damages. Both parties agreed that if the appeal on liability was allowed, and the notice of contention dismissed, this Court could not itself determine the matter, and there would need to be a retrial. Both parties agreed that, in that event, there should be a retrial on all issues, including damages, bearing in mind that questions of damages would be determined based on different evidence.

5 The vagueness in the account of the events of 24 June 2011 at the commencement of these reasons is deliberate. What is there said is uncontroversial. However, precisely how the sleepers came to fall onto Mr Borg's foot was the principal issue at the trial. The primary judge, whose judgment was delivered, promptly, the Monday following the trial, recognised this. His Honour said as much at the outset of his reasons, and repeated on page 2 of his reasons that "The significant factual issue which has arisen for determination in this court is how the timbers or timber came into contact with the plaintiff's foot".

6 Bunnings' main submission on appeal is that his Honour failed satisfactorily to resolve that central factual issue. Bunnings also submits that the primary judge failed to have regard to and apply ss 5B-5E of the Civil Liability Act 2002 (NSW). For the reasons given below, both of those submissions should be accepted, the appeal allowed, and the notice of contention dismissed, with the result that there must be a retrial.

Overview of conflicting evidence at trial

7 The primary judge heard from three men who were present at the scene on 24 June 2011: Mr Borg himself, and two Bunnings employees, Messrs Palmer and Said. Their evidence was contradictory.

(a) Mr Borg

8 Mr Borg gave evidence in part through a Maltese interpreter, and partly in English. He said that he and one of the employees together loaded "about six or seven" sleepers onto the utility. The shop assistant then arranged for another employee to operate a forklift to collect another load of sleepers. When they were brought close to the utility, its driver cut the straps holding the sleepers together while the load was on the forklift, and started a conversation with another employee. At this stage, Mr Borg said that the forklift tines were horizontal, with the bottom row of the sleepers approximately level with the tray of his utility. At some time shortly thereafter, Mr Borg said that five or six sleepers fell onto his left foot. He denied touching any of the load of sleepers which had been brought to his utility on the forklift.

9 Mr Borg was treated with ice at the scene, and then drove to a site where he had been completing some landscaping. He was in pain, and attended a general practitioner that afternoon and Westmead Hospital two days later, where he presented shortly before 8am and was discharged in the early afternoon. The hospital's records stated that X-rays showed a complete transverse fracture of the proximal phalanx of the left great toe, and of the middle phalanx of another toe. Passing over the details of the treatment that occurred subsequently, including the insertion of an intramedullary pin, an X-ray taken on 1 November 2011 was described as showing that "The pin has been removed and the fractures have healed in satisfactory position". I will not attempt otherwise to summarise the medical evidence or the evidence going to quantum.

(b) Mr Palmer

10 Mr Chris Palmer was a tertiary student who worked part-time at Bunnings. He assisted Mr Borg on 24 June 2011. He said that he caused Mr Said to get a forklift and return to Mr Borg's vehicle with a load of sleepers. He said that he did not see Mr Said get the forklift, and next saw him when he brought the forklift to the utility. He said that the forklift was brought at right angles to the utility with its tines raised; he gave inconsistent evidence as to how high, which seems best read at a height such that the top of the load of four or five rows of sleepers was at about chest height. He denied that the forklift driver got out of the forklift, with the consequence that it was not possible for Mr Said to have cut any straps holding the sleepers together. He denied in cross-examination that any straps were cut on the day. It was not put to him that the load of sleepers was bound with straps. Mr Palmer said that he and Mr Borg together loaded the sleepers into Mr Borg's utility, with Mr Palmer probably taking the weight. He said he had a clear recollection ("Yes, a hundred per cent") of Mr Borg positioning each sleeper on the utility and Mr Palmer then pushing it in the rest of the way. He said that together they loaded between five and eight sleepers, and that he was then asked to assist another employee, taking him away from the utility and forklift, and that while so occupied, the sleepers fell onto Mr Borg.

11 Mr Palmer accepted that he had spoken with Mr Said in the weeks preceding the trial. He had prepared a witness statement, which was not tendered, but as to which he was cross-examined, and in which he had apparently said that the customer had pulled one of the sleepers. He conceded in cross-examination that he did not know that for a fact, and his statement was made as a result of having spoken with Mr Said.

(c) Mr Said

12 The other Bunnings employee was Mr Martin Said. He drove the forklift. His evidence was that he remained on the forklift. He was challenged about this, but denied leaving the forklift until after the accident had occurred. It was not specifically put to him that he cut any straps holding the bundle together.

13 Mr Said said that he loaded the sleepers onto the forklift with the assistance of Mr Palmer. He then tilted the tines of the forklift to an angle of about 15 degrees above the horizontal, and drove to the utility, stopping the forklift at right angles to it. He said there were about 20 sleepers in the load, which he aligned so that the top row was just above the utility's tray. He said that he did not adjust the "mast" of the forklift so as to change the angle of the times at any time before the accident. He remained in the forklift while Mr Palmer helped Mr Borg load the sleepers into the utility. He could not remember precisely how many, but said that "several" were loaded. He said that he could see this happening as he sat behind the steering wheel of the forklift (which did not have a cabin). He was asked:

"Q. Was the customer involved in the loading before the accident?

A. Yes, he was at one end of the sleeper, pulling the sleeper onto the back of the ute, and Chris was at the other end of the same sleeper, pushing."

14 Mr Said was cross-examined on some photographs, taken after the event, of a forklift in Bunnings bearing a load of sleepers at right angles to a utility. The photograph had been taken to reconstruct the position of the forklift and the vehicle. Mr Said was asked whether the very outer edge of the forklift tines in the photo were inclined down from the horizontal to some degree, and answered "It does look that way in that photo, yes".

15 Mr Said was shown an incident witness statement signed by him (again, this was not tendered) and he agreed that he had filled it out shortly after the incident. He accepted in both his statement and his evidence that he did not see any sleepers actually fall on Mr Borg, because he had turned to look at the other Bunnings employee who had sought assistance from Mr Palmer. He gave this evidence:

"Q. What you said [in the witness statement] was, 'I turned and looked at Graham and then I heard a yell.' You did not actually see the falling sleepers go onto Mr Borg's left foot, did you?

A. No. It had already struck his foot.

Q. You don't know whether he was touching them or not at the time, do you?

A. He - he had - still had a sleeper in his hand when I looked forward."

16 Mr Said was also cross-examined about why he had remained in the forklift, rather than assisting Mr Palmer unload the sleepers. He said "Because procedurally, I'm not permitted to leave the forklift unless the tines are placed against the ground".

17 There were contemporaneous documents prepared on both sides of the record. On the part of Bunnings, aside from documents referred to in cross-examination which were not tendered, there was a two page "incident investigation report". The incident was described as follows:

"Assisting customer to load sleepers on to his ute. As customer moved a sleeper from the pack he lost grip on the end and sleeper fell onto his foot."

18 The "immediate actions taken" were described as follows:

"Had discussions with team in timber yard to advise them of incident and reiterated the importance of having team members only load heavy items in customer vehicles where possible to ensure that we are able to follow our BSAFE manual handling guidelines."

19 On the part of Mr Borg, the medical history given by him at Westmead two days after the incident stated:

"Alfred BORG presented to this facility with pain in left foot after dropping a log onto it 2/7 ago. - was lifting a heavy log, when dropped it onto his left foot over the toes."

20 Elsewhere in documents produced by Westmead are two incorrect references to Mr Borg suffering from pain to his right foot. Those two references appear to have been prepared when Mr Borg first presented at the hospital, at 7.52am on Sunday 26 June 2011, by the triage nurse (who is named in the document). One of the references has been corrected by hand. In contrast, the history reproduced above, which is the only history recorded in the documents, appears to have been prepared in the afternoon, and by a different author. The author, who is also named in the document, appears to have been a medical registrar (this portion of the history is replete with precise medical terminology: for example, "bruising over 1st - 3rd toes and at base of toes both anteriorly and superiorly" and "Post reduction x-ray: - still displaced laterally ~ 60% - slightly angulated ~ 15 degrees laterally").

Summary of conflicting evidence

21 The central issue in the trial was what was occurring when the sleeper fell onto Mr Borg's foot. The testimonial evidence of Messrs Palmer and Said was that Mr Borg was himself involved in unloading sleepers from the forklift onto the tray of his utility. That was consistent with Bunnings' incident report and the history Mr Borg gave at Westmead two days later. But Mr Borg squarely denied this.

22 There were many subsidiary evidentiary inconsistencies. Mr Palmer and Mr Borg were at odds as to whether any sleepers had been loaded onto the utility before it was necessary to summon the forklift with a new load. Mr Borg's primary case theory was that the load of sleepers became unstable immediately after straps holding it together were cut; however this was inconsistent with the recollections of the Bunnings employees, and was not even put to them, a point made in closing address ("[I]t certainly wasn't put to Mr said or Mr Palmer that that happened"). Mr Borg said the forklift tines were level; Mr Said said that they had been raised to an angle of around 15 degrees, but gave evidence in relation to the apparent downward slope of tines on a photograph of a forklift taken after the event. As between Mr Palmer and Mr Said, there were inconsistencies, notably, whether Mr Palmer had acted as his "spotter" when he collected the load of sleepers from elsewhere in the warehouse. The evidence of how high the load of sleepers was when the incident occurred was inconsistent as between all three witnesses.

Reasoning of the primary judge

23 Pages 3-25 of the reasons of the trial judge primarily summarise the evidence given at the trial, although they also include some interpolated comments, to which it will be necessary to return. The dispositive portion of his Honour's reasons on liability is at pages 25-26:

"The plaintiff was unequivocal and clear when it came to what he said was his memory of the events at that relevant time. So, therefore, I do consider that at the end of the day that the plaintiff's evidence should be accepted. I remind myself of the plaintiff's observations of the four inches of tine being exposed. I remind myself of the angle of the tines. I am also mindful that when it comes to the events immediately giving rise to what occurred to the plaintiff that the plaintiff himself was not under observation by Mr Said or Mr Palmer at that very critical time.

I have, as I indicated earlier, taken into account the demeanour and the assertiveness of the plaintiff. The reasons, in summary, why I prefer the plaintiff's evidence to that relied upon by the defendant has already been indicated thus far in this judgment by and large, but they include these matters. The plaintiff's demeanour and assertiveness. His evidence has the ring of truth. I acknowledge the degree of inconsistencies in the other material, but I consider that those inconsistencies can be explained for the reasons I have indicated. When it comes to inconsistencies, there are indeed internal inconsistencies in the evidence of the Bunnings' employees themselves.

There is no doubt in my mind that the sleepers were strapped and that they were released in the way that the plaintiff indicated in his evidence. The slight incline of the tines, I have already addressed that.

Also I do consider this is important. The plaintiff was never challenged about the histories he gave to the defendant's doctors. The histories he gave to the defendant's doctors were consistent, but one should also make a degree of allowance, I consider, for the pain that the plaintiff was no doubt in when he presented himself to the Westmead Hospital relevant time. The plaintiff indeed sustained, what I said earlier in this judgment, a nasty injury to his foot.

All in all I consider that on the balance of probabilities the plaintiffs case has been made out and, from a factual point of view, I accept what the plaintiff said as fact. Clearly there was a duty of care owed. I am mindful of the degree of the scope of such duty, but in the particular circumstances before me the elements of negligence, as pleaded, in the statement of claim have been made out. I am also mindful of s 5D of the Civil Liability Act when it comes to causation. All in all I consider that negligence has been established and I so find."

Errors in the reasoning of the primary judge

24 The reasoning of the primary judge is problematic in the following six respects.

25 First, the only evidence before the primary judge about downward sloping forklift tines was that given by Mr Said in relation to a photograph (photograph 4 of exhibit 1) which was a reconstruction of the position of the forklift and the utility. I am sceptical that any such slope can be seen from the photograph. (It can readily be seen that the photographer did not hold his or her camera precisely level. The effect of this is to suggest a downward slope relative to the edges of the photograph.) In any event, either the outermost edge of the forklift tines sloped slightly downwards on 24 June 2011 or else it did not. But that proposition cannot be established directly by a photograph of a reconstruction of the event: see Blacktown City Council v Hocking [2008] NSWCA 144; [2008] Aust Torts Rep 81-956 at [7]-[13] and [167]-[172]. The fact that a witness agreed to a question asked by reference to the photograph does not alter the position.

26 Although the primary judge expressly stated that he was conscious of the dangers in using photographs for such purposes, and further that he was conscious that the photograph was of a reconstruction of the scene, it is clear that he used the photograph impermissibly. The reference in the third paragraph reproduced above to the "slight incline of the tines" which his Honour had already addressed was a reference to this sentence:

"[Mr Said] also agreed, when he was shown photograph 4 revealing the outer edge of the tines, that they incline down towards the ground to some degree."

27 In short, his Honour relied impermissibly on testimonial evidence derived from a photograph of a reconstruction to reach a finding that the forklift's tines sloped downwards, and failed to reconcile that finding with the evidence of Mr Borg (that the tines were level) or Mr Said (that they were inclined 15 degrees upwards). His Honour thereby used photographic evidence to trump testimonial evidence, which is impermissible: the authorities are collected in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [47].

28 Because the primary judge's finding about the slope of the tines was material to his ultimate findings as to how the sleepers fell, that of itself would be sufficient to allow the appeal.

29 Secondly, his Honour's findings amounted to an implied rejection of the evidence of Mr Palmer and Mr Said, which was consistent with the Westmead history and Bunnings' incident report, to the effect that Mr Borg had not been helping load his utility with the sleepers on the forklift. It was of course open to his Honour to reject that evidence, but if he were to do so, it was necessary for him to provide reasons for doing so. No such reasons are to be found in the dispositive portion of his Honour's judgment reproduced above, except to the extent that reference is made to the Westmead documents. Indeed, the reader of that portion of the reasons would not apprehend that every other witness and every other contemporaneous document was contrary to the findings that his Honour made.

30 As noted above, his Honour addressed that evidence earlier in his reasons, and made comments in relation to it. The second paragraph reproduced above ("the reasons, in summary, why I prefer the plaintiff's evidence to that relied upon by the defendant has already been indicated thus far in this judgment") indicates that those comments are to constitute the reasons for rejecting that evidence. Accordingly, I turn to what was said about the contradictory evidence on this issue.

31 (a) The Westmead medical history. The most contemporaneous history given by the plaintiff was that given at Westmead two days after the incident, and it was materially inconsistent with the plaintiff's case at trial. His Honour addressed this at p 12-13 of his judgment. He noted that there can be inaccuracies in hospital records, and then stated:

"After all, one could not be more inaccurate than indicating that the plaintiff presented with pain in his right foot. That in my view begs a real question over the accuracy of the document overall."

32 His Honour gave great weight to one aspect of the documents produced by Westmead Hospital. Save for two exceptions, the Westmead documents correctly and consistently refer to Mr Borg's left foot. The exceptions are two references made when he presented at the Emergency Department ("Presenting Problem: Pain R) foot") which appear to have been made by the triage nurse. Other medical documents, including the letter from Mr Borg's general practitioner, whom he consulted the day of the incident, refer to Mr Borg's right foot. (The letter was dated May 2012, and must reflect a summary of notes taken on 24 June 2011 almost a year earlier; the original notes were not in evidence.) But the short point is that neither the error in the letter from Mr Borg's general practitioner, nor that made by the triage nurse (which was corrected by hand), is a proper basis to discount the much more detailed record reproduced in [19] above, taken at Westmead two days after the incident by a different medical professional. Yet his Honour expressly relied upon the obvious error made when Mr Borg first presented by another author, to discount the probative value of Mr Borg's history given on discharge to a different medical professional. That reasoning process is not sound.

33 (b) The Bunnings' incident report. The primary judge concluded that there was a "degree of inaccuracy" in the incident report, because it was conceded in cross-examination that neither man saw what was recorded at the time, namely, "As customer moved a sleeper from the pack he lost grip on the end and sleeper fell onto his foot". That conclusion is sound so far as it goes.

34 However, the report also recorded the discussions later that day about having team members only load heavy items into customers' vehicles. His Honour said that he thought that this evidence was neutral. That is not so. It represents a contemporaneous note of a perceived problem that someone other than a team member (namely, Mr Borg) was assisting loading heavy items. As such, it was inconsistent with Mr Borg's primary case. Once again, the reasoning to discount this evidence is not sound.

35 (c) The testimonial evidence of the Bunnings' employees. The contradicting testimonial evidence is summarised above. In particular, there was the effectively eyewitness evidence of Mr Said contradicting Mr Borg's case. After all, Mr Said said, in cross-examination, that he saw Mr Borg still holding the end of the sleeper immediately after it had fallen onto his foot. His Honour noted this (p 20) but did not otherwise grapple with the inconsistency. Nor was there any attempt to grapple with the central differences, including that Mr Borg had said that some sleepers had been loaded onto the utility before the forklift had arrived, which was contradicted by the evidence of both Bunnings employees.

36 It follows that the primary judge's reasons disclose a failure in the process of fact finding: see Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [129]-[130]. In a case such as this, it is necessary to "engage with, or grapple or wrestle with the cases presented by each party": see Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134] and Coote v Kelly [2013] NSWCA 357 at [39]-[52]. As explained by McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:

"Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried."

37 Thirdly, his Honour gave prominence to the fact that Mr Borg had not been cross-examined about the histories he gave to doctors retained on behalf of the defendants. Those histories were consistent with Mr Borg's evidence. However, Mr Borg was cross-examined carefully and thoroughly about the primary facts. It was not necessary for the cross-examiner to extend his cross-examination to the fact that Mr Borg gave medical practitioners a similar history. The fact that there was consistent, after-the-event evidence supportive of the plaintiff's case did not absolve the primary judge from grappling with the contemporaneous evidence which was inconsistent with that case.

38 Fourthly, although the primary judge said that he had "no doubt" that the sleepers had been strapped and were released in the manner indicated by the plaintiff (that is to say, by Mr Said, shortly before the accident), that conclusion was contrary to Mr Said's evidence, which was plausibly supported by his recollection of procedure (to the effect that he could not leave the forklift while the tines were raised) and was not even put to Mr Said in cross-examination. His Honour failed to reconcile his conclusion with any of this evidence.

39 Fifthly, what did the primary judge actually determine? His Honour said that he found that "the elements of negligence, as pleaded, in the statement of claim, have been made out". There is no explicit finding of any particular breach anywhere in the reasons.

40 In order to understand the findings that led to a verdict in Mr Borg's favour, it is necessary to turn to the pleadings. That Bunnings owed a duty of care was admitted on the pleadings. Mr Borg's amended statement of claim claimed that Bunnings "was in breach of this and was negligent". He gave these particulars:

"a) Placing the plaintiff in a position of peril circumstances;

b) Failing to warn the plaintiff to stand clear;

c) Cutting the containment straps when the plaintiff was nearby;

d) Failing to have sufficient staff nearby when the containment straps were to be cut;

e) Having the sleepers on the ends of the forklift tines as opposed to near the forklift apron guard;

f) Failing to tilt the tines of the forklift upwards to prevent sleepers from falling off;

g) Failing to lower the sleepers to ground level.

h) Failing to assist, or safely assist, the plaintiff to unload the sleepers."

41 The last particular was added at the commencement of the trial. It is inconsistent with the plaintiff's principal case (because it involves Mr Borg assisting to unload the sleepers). However, on one reading, his Honour's findings might amount to an acceptance of both of two inconsistent cases propounded by the plaintiff.

42 A more charitable approach is to read his Honour's reasons as conveying an acceptance only of particulars (a)-(g). Indeed, this is literally what his Honour said, for those were the particulars in the (superseded) statement of claim. However, even so, those seven particulars required quite precise factual findings, and as to which the inconsistent evidence needed to be grappled with. For example, acceptance of particular (c) required findings as to the cutting of the containment straps in the presence of the plaintiff (which was contrary to the evidence of Mr Palmer and Mr Said and was not indeed even put to them). Particular (g), as to failing to lower the sleeper to ground level, was not put to any witness as something which should have occurred. In short, reference to the particulars in the unamended pleading does not cure the failure in the process of fact-finding already referred to.

43 Sixthly, if the plaintiff's case were to be accepted to any extent, the critical legal questions posed by statute were: how did Bunnings or its employees breach the duty owed by it, and how did that breach cause the damage sustained by Mr Borg.

44 The first question required attention to be given to s 5B of the Civil Liability Act, a section not mentioned in the judge's reasons. In particular, s 5B(1)(c) precludes a finding of breach of duty in failing to take precautions to guard against a risk of harm unless a reasonable person in the defendant's position would have taken those precautions. There is no suggestion in his Honour's reasons that he paid any regard to the matters in s 5B(2), which he was required to consider.

45 It was also necessary to address s 5C, and in particular s 5C(b), for the plaintiff's case was that because the risk of harm could have been avoided by taking certain steps, there was for that reason negligence attributable to Bunnings. The steps which should have been taken were not identified.

46 Further, once the breach of duty was identified, the onus remained with the plaintiff to demonstrate, in accordance with ss 5D and 5E, that the breach caused damage. Although the primary judge said that he was "mindful" of s 5D, it is unclear what he intended to convey by that statement. Without identifying any particular breaches, it was not possible to make any determination of causation, and the process required by the section was therefore not complied with.

Notice of contention

47 Mr Borg's notice of contention is to the effect that even if the straps holding the sleepers together were not cut once the load reached the rear of Mr Borg's vehicle, Bunnings would nevertheless have been found to have been negligent. As articulated in submissions, it being common ground that the sleepers were not tied together immediately before they fell on Mr Borg's foot, it was alleged that there was a breach of duty in failing to take steps to minimise the risks by (a) tilting the mast of the forklift, (b) having employees assist in the loading process, (c) giving warnings to the customer to be alive to the possibility of movement in the load of sleepers, and (d) Mr Palmer assisting in an uninterrupted way, or, at least, telling Mr Borg that he was no longer assisting or watching the load of sleepers.

48 The first difficulty is that there were insufficient factual findings to sustain the conclusion as to liability. There was conflicting evidence as to the tilting of the forklift, which this Court cannot resolve. There are no findings whatsoever about the effect of a warning, or what would have occurred if there had been more staff, or indeed the analysis of the impact of more staff by reference to s 5B(2) of the Civil Liability Act. In substance, the failure of the process of fact finding means that the notice of contention must be dismissed.

49 More generally, and as was pointed out in argument on the appeal, an indication of the nature of the reasoning process applied by the primary judge may be found in a subsequent paragraph, which was in these terms:

"There can be no suggestion of contributory negligence in the circumstances, although I do know it has been pleaded. The plaintiff was in a situation where he was waiting for the completion of the task, which fell to Mr Palmer and Mr Said, to complete. Unfortunately, the plaintiff came to grief in the circumstances that he described and it was in the arena of a clear responsibility of those who were charged with that task to ensure that he was kept safe at that time."

The same reasoning may, perhaps, reflect the theory underlying the notice of contention.

50 However, there was no obligation on the part of Bunnings to ensure that he was kept safe. The operations of a hardware store inevitably generate hazards for people attending it, and the law imposes an obligation to take reasonable care to minimise those hazards: cf Woolworths Ltd v Ryder [2014] NSWCA 223 at [63]. Bunnings was liable if, and only if, either directly or vicariously through the tortious conduct of its employees, there was a breach of duty which caused damage in accordance with the common law principles of negligence as modified by the Civil Liability Act. That in turn required findings of fact which either were not made or else were the product of a flawed fact finding process.

Conclusion and orders

51 Regrettably, this is a case where this Court can comfortably be satisfied that there has been appellable error, but it is not possible to make findings so as to resolve the dispute. If indeed Mr Borg was left standing alone next to a precariously balanced load of sleepers elevated on a forklift, some of which then fell on him, he is likely to establish the elements of his a cause of action. However, if Mr Borg was left alone but continued to attempt to shift sleepers from the forklift onto his vehicle, the analysis would be different. And it is not the case that Mr Borg must succeed; as noted above, there was no obligation upon Bunnings to ensure that Mr Borg was kept safe. Moreover, Bunnings alleged contributory negligence, and whether and the extent to which that is made out will turn upon the findings that are made.

52 In Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [17], Basten JA noted that in some cases, where sufficient facts were incontrovertibly established by the evidence, a substituted judgment might be possible. However, his Honour also noted that it was possible that an appellate court could detect error without being satisfied that a contrary finding was appropriate. In that case, if the court were also satisfied that there had been a substantial miscarriage of justice, a retrial is required: r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW). State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) [1999] HCA 3; 73 ALJR 306 was an example of such a case, because, in the language of Gaudron, Gummow and Hayne JJ at 321, "The substance of the matter is that there has not yet been a determination of the SRA's case upon a consideration of the real strength of the body of evidence it presented". That accurately describes the present position, given the testimonial and documentary evidence on which Bunnings relied.

53 In circumstances where there must be a retrial, and in which the parties were agreed that the retrial should be on all issues, then an analysis of Bunnings' submissions on its appeal as to quantum, and Mr Borg's submissions on his cross-appeal as to quantum, is entirely academic. Indeed, it might cause confusion having regard to the different (and highly deferential) approach taken on appeal to findings of loss concerning matters such as domestic assistance. This was reflected in the parties' oral submissions on quantum, which were extremely brief.

54 However, without expressing a concluded view and without binding the parties or the judge who must rehear this dispute, one might be sceptical that the injury to Mr Borg's toes was capable of surmounting the threshold imposed by s 16 of the Civil Liability Act of 15% of a most extreme case.

55 I propose that the appeal be allowed, the cross-appeal dismissed, the orders made by the Court below on 19 August 2013 set aside, and there be a retrial. The costs of the proceedings at first instance should be left to the judge before whom the new trial is conducted. Mr Borg sought to defend the judgment of the primary judge, and must pay Bunnings' costs of the appeal, but should have a certificate pursuant to the Suitor's Fund Act 1951 (NSW).

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Decision last updated: 28 July 2014