I refer to my earlier posting and note the Plaintiff’s $1 million appeal was similarly dismissed.
|TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – IN GENERAL – the appellant suffered an injury in the course of his employment with the respondent – the appellant was injured when he tried to move from a platform onto a ladder which gave way – the ladder had been visually inspected before use and no defects were observed, but its brace was later found to be defective – the primary Judge found that the appellant had failed to demonstrate any negligent act or omission by the respondent and dismissed the claim – whether the defect in the ladder was discoverable by any reasonable inspection that the respondent ought to have performed – whether the appellant had discharged the onus of proving that the defect in the ladder had caused his fall and resulting injury – whether the primary Judge’s factual conclusions were reasonably open on the evidenceBankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301;  HCA 20, applied
 The Judge’s factual findings were reasonably open. None of the grounds of appeal which were pursued, was sustained.
 I would order that the appeal be dismissed, and that the appellant pay the respondent’s costs of and incidental to the appeal, to be assessed as necessary on the standard basis.
 MULLINS J: I agree with the Chief Justice.
 McMEEKIN J: I have had the advantage of reading the reasons of the Chief Justice and agree with them but wish to add a few words of my own.
 Mr Schonell has suffered a very serious injury in the course of his employment when he injured his knee in a fall from a ladder. After the event it was found that the ladder from which he fell was defective, in the sense that there was a crack found to be present in a brace. It is understandable that he would think the injury and the defect to be connected. And in the context of the employer not having any system of inspection procedure in place and the ladder being “fairly old” his disappointment in failing to obtain a judgment for damages assessed at a sum in excess of $1,000,000 can well be imagined.
 It is true that the defect in the ladder possibly caused the fall but that is not enough. As the High Court stated in St George Club Ltd v Hines (1961) 35 ALJR 106 at 107:
“In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant’s default, Binnington Castings Ltd v Wardlow  UKHL 1; (1956) AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Robertson Ltd (1958) AC 9 at p 23), ‘Post hoc, ergo propter hoc’ is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life.”
 And I would add just as much a fallacy in respect of a breach of duty at common law.
 Mr Schonell’s difficulty is that the evidence did not establish on the balance of probabilities the two crucial matters that he needed to show to succeed. The first is that the defect in the ladder caused his fall which resulted in his injury. The second is that the defect was discoverable by some measure that his employer ought reasonably to have adopted before the event.
 There was no direct evidence as to what caused the fall or when precisely in the sequence of events the injury occurred. There were competing possible hypotheses. In that situation it was incumbent on the plaintiff to demonstrate that the hypothesis consistent with negligence on the part of his employer was the more probable.
 Here the competing possibility was that the injury and fall were sustained not by the ladder collapsing because of a pre-existing defect but by the plank on which Mr Schonell was standing shifting under his weight, he twisting his knee in reaction to that sudden shift, and that causing the ladder to fall. As the Chief Justice points out Dr Jenkins considered this to be the more likely scenario. Admittedly that by no means concludes the matter as Dr Jenkins was then speaking from a set of assumptions provided by the defendant’s side and not the evidence eventually led, but his opinion on this point was not shown to be wrong by reason of the evidence led.
 Mr Ambrose pointed to Mr Schonell’s evidence that he tied the plank with wire before his fall and he explained that it was tied tightly by hand. But the evidence did not go so far as showing, on the balance of probabilities, that the plank could not shift as Dr Jenkins said it could. As Dr Jenkins observed there was “potential for greater movement” when tensioned by hand.
 That analysis is sufficient to conclude the matter against Mr Schonell.
 However, as the learned trial judge found, the evidence did not go so far as demonstrating that the defect in the ladder was discoverable by any reasonable inspection that could have been performed. So even if the foregoing analysis be wrong it cannot be concluded that the employer has breached its duty of care, a duty which the authorities show to involve a high standard of care but nonetheless one based on a reasonable response to the risk in question: see the discussion in Bankstown Foundry Pty Ltd v Braistina. Again the relevant standard of proof is the balance of probabilities.
 It was common ground that anything other than visual inspection of the ladder was impracticable because of expense and the delay that other forms of more sensitive testing would entail. The evidence was largely silent as to the frequency of inspections, but again it was common ground that the ladder was inspected every time before use, perhaps by two people, the one who erected the scaffolding incorporating the ladder and the user of the ladder, if that person was a different individual as it was on the day of Mr Schonell’s fall. It was common ground that no person, including Mr Schonell and Mr Duvalois each of whom inspected the ladder on the day of the accident and prior to the fall, detected any cracking of the ladder to indicate the possibility of a defect.
 Mr Schonell relies on the evidence of Dr Jenkins that the Chief Justice has quoted but that does not establish the necessity of a visible crack being present prior to the accident. Equally his evidence is consistent with two other inferences – that for the crack to have been causative of the event it would need to have been of such a size that it could not have been missed; alternatively, the application of force in the instant case was not the same as, but possibly exceeded, the load in “one more load cycle” referred to by Dr Jenkins by which he meant one more use of the ladder in the normal way. In each of those scenarios any defect present, if there was one, would probably have been too small to be seen.
 These two hypotheses needed to be excluded by the appellant on the balance of probabilities and in my view were not.
 While the direct proposition was not put to Mr Duvalois, the whole tenor of his evidence is that, when examining the brace earlier in the day before the accident, he would have expected to see a crack had one been present in the brace and visible, which post accident he saw to be broken. While Mr Duvalois agreed that he had just a “general look” questions were not asked, perhaps for good reason, of the time spent examining the ladder, whether the precise area where the crack was later found was examined or even easily seen, whether dirt or other material may have impeded any inspection and if so what steps were taken to remove any such impediment, how frequently the ladder was used and so inspected, and so on.
 Effectively Mr Schonell’s arguments were based on the premise that the Court could not be satisfied that the prior inspections, however many there were, were carried out with the degree of care necessary to detect an already visible crack. I agree with the Chief Justice that the argument involves a degree of impermissible speculation.
 I agree with the orders proposed by the Chief Justice.
Brisbane Barrister – David Cormack