AFS Catering Pty Ltd v Stonehill

AFS Catering Pty Ltd v Stonehill - [2005] NSWCA 183 - NSWCA 2004 case summary — Zoe

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Liability: the primary judge's reasons 5 The primary judge delivered a comprehensive judgment from which the following facts can be drawn. 6 The respondent was employed by the appellant as a dining room attendant at an Other Ranks' Army Mess at the Holsworthy Army Base. She was injured on 5 August 1999 when she slipped on margarine lying on the floor of the dining room. Her claim that the appellant had been negligent was fundamentally based on the proposition that it had failed to devise and maintain a safe system of work. The primary judge summarised the appellant's approach to the evidence at the outset of his judgment as follows: "… no substantial challenge [was] mounted in cross-examination to the accounts given by the plaintiff or Mrs Cotter as to the nature of the premises, the occurrence of spillages and the pace at which each of the plaintiff and Mrs Cotter were required to work in order to carry out their duties, with a concomitant difficulty, amounting almost to an inability on the part of either of them, to attend seriously to the question of spillages during meal times until the thorough cleaning which took place after each meal time." 7 The primary judge made his findings against that background. The respondent's usual hours of work were from 10.30 am to 7.00 pm. When she arrived at work at about 10.30 am she assisted a Mrs Cotter who did the breakfast shift and worked until about 1.30 pm. By the time she arrived at work Mrs Cotter had cleaned the floor after breakfast. The respondent helped Mrs Cotter with the dishes, putting items in the fridge, putting milk away and helped her generally to clean up after breakfast. 8 The food was prepared in the kitchen of the premises. When served, it was laid out in bain-maries or similar containers provided for the four or five choices of dishes together with vegetables available for the diners. In addition there were refrigerators located in the dining room which were accessible to the diners. They contained various forms of sauce, yoghurt and milk, honey, Vegemite and lemon as well as margarine which was kept in tubs in the refrigerators. Desserts were also kept in the refrigerators. 9 The primary judge found that the diners took two approaches to the use of the margarine. One was that the diners removed the tubs from the refrigerator and took it to their table, or commonly, used a knife to remove margarine from the tub in the refrigerator and either spread it on bread (presumably while standing near the refrigerator) or put in on a bread and butter plate to be conveyed to the diner's table. 10 Luncheon was provided from noon until 1.30 pm. At the outset of lunch, the diners were required to approach the respondent who sat at a position described as "the point" and sign themselves into a book under her supervision. If they chose to pay for their meals at that time rather than have the cost deducted from their pay, they paid the respondent who, if required, would write them a receipt. There were in the order of 200 tables in the dining room. The respondent's estimate was that on an average day 150 to 200 diners could be expected to attend lunch. She estimated that there were approximately 150 there on the day of her accident. Mrs Cotter, however, thought there were more diners in the dining room on the day of the accident because there were people attending courses who had come from all over Australia. 11 Although, as I have noted, the luncheon period was from noon until 1.30 pm, in fact the last diner had to arrive by 1.15 pm because the dining room was expected to be cleared by 1.30 pm. As the diners arrived throughout that period and not all at once, the primary judge noted that it was necessary for the respondent to spend a fair bit of time sitting at "the point". She normally sat there until 12.30 pm at least, however her duties required her to be available to supervise the signing in process and to take payments from diners from noon until 1.15 pm. 12 From about 12.30 pm, however, she was usually in a position to assist Mrs Cotter with the other major duty to which they were required to attend during lunch, loading the dishwasher with plates and dishes returned to the dishwasher vicinity by diners. 13 The primary judge made the following finding concerning the habits of the diners: "The evidence is clear that the process of dining in the other ranks' mess at Holsworthy was not particularly edifying. The plaintiff, speaking from years of experience at the premises, described the diners as 'like pigs'. Clearly, the operation of the dining room generated substantial occasions of spillage. That included spillage at the point of loading of plates with large spoons at the bain-maries. No doubt, there were opportunities for spillage as the plates were carried by the individual diners to their respective tables. The evidence also discloses that there was spillage from other sources as well, including spillages from the margarine. " (emphasis added) 14 He also described the circumstances in which the respondent and Mrs Cotter worked in the following terms: "The plaintiff and [Ms] Cotter described their work, (that is in relation to ensuring that the dishwashers were fed and that the signing-in or payment was monitored) as entailing that they worked at a very fast pace such that there was no time available, in the ordinary course of events, for either of them to specifically patrol the dining room area in order to detect spillages. What actually happened, it seems to me, is what was described by [Ms] Cotter; that is, if either of them saw a spillage, then the 'slippery when wet' sign was grabbed and put in position until there was time to clean up the spillage, which was whenever things quietened down." 15 The respondent was responsible for cleaning the mess, including the floor, at the end of her shift every day after lunch. The respondent was aware food was regularly spilt in the mess but it was not something of which she was conscious at times when she was busy. She was not particularly thinking of it on the day of the accident. 16 On the day of her accident the respondent was taking cutlery from the kitchen to put into containers in the dining room at about 12.30 pm. She was carrying some cutlery in a basket. She walked out of the kitchen, along a passage and turned right into the dining room. The floor tiles were a creamy yellow colour. She slipped and fell on her back. When she looked down after the fall she saw that she had margarine on the culottes she was wearing. She also saw margarine on the floor. One of the army men came over to help her as, too, did a Ms Goodman, the secretary. Mrs Cotter also went to the respondent's assistance and helped getting her up from the ground. As she did so she knelt on the ground. She noticed afterwards that she had margarine on her hand. 17 The primary judge concluded that there was no doubt that the respondent had sustained her back injury when she slipped on margarine which had been spilt on the floor. He also was satisfied that the spillage of margarine and indeed of other substances such as the items being taken from the bain-marie, either being put on the plates or being taken to tables, the returning of plates from the tables to the dishwashing area, removal of sauces, desserts and such from the fridge and spilling vegetables and drinks was a common, everyday occurrence in the dining room. 18 The primary judge concluded that the respondent had demonstrated that the spillages represented a foreseeable risk of significant injury in circumstances where the appellant knew or ought to have known:

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(c) that there was a likelihood of undetected spillages being present on the floor during meal times on a regular basis. 19 His Honour also found that the appellant knew or ought to have known that the respondent's duties required such a brisk pace of work as to make it difficult, if not impossible, for her to attend to the cleaning of the floor during the course of the meal time and, further, that she was working at such a pace that she would not have had an opportunity for careful and deliberate examination of the floor as she passed by in the course of these duties. He noted that the respondent's and Mrs Cotter's evidence was that their practical inability to monitor the state of cleanliness of the floor at sufficient and regular intervals had prevailed for over two years. 20 The primary judge was satisfied that the appellant could have avoided the risk he identified by reasonably practicable measures, one being the appointment of a staff member, with the duty and sufficient time, to inspect the floor at regular intervals in order to detect and remove, or at least isolate, spillages during meal times. He regarded evidence Mrs Cotter gave that when the Army had itself been in charge of the catering, an officer made certain that the Army personnel responsible cleaned up any spillages immediately as suggesting there was merit in the proposition that the appointment of a person with responsibility directed to removing spillages would be a practicable measure. 21 While the respondent accepted she was responsible for cleaning her place of work, the primary judge held that: "… the circumstances in which she was able to discharge that responsibility were heavily (and, in practical terms, almost entirely overwhelmed by the duties which she also had to perform and which were essential duties in her role as a dining room attendant, particularly the monitoring of entry into the dining room and payment where necessary and, secondly, ensuring that the dish washing was kept up to the mark." 22 The primary judge rejected the appellant's submission that the respondent was the author of her own misfortune. His Honour considered that the question was whether the case fell into the category of those where the risk was known to an employee and could have been avoided by a simple expedient which the employee did not take. He distinguished Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 and Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267; (2002) Aust Torts Reports ¶81 - 673 on the basis that those cases concerned independent contractors whereas the respondent's tasks were "essentially defined for her". 23 The primary judge concluded that the probability was that if there had been a proper system of ensuring spillages were detected and removed, the respondent would not have slipped. He found that the respondent was not in a position to carry out that part of her duties (I assume his Honour was talking of her duties to clean up spillages) fully or effectively because of her pre-occupation with her other duties. He found that when she walked about the floor she had no time to have more than a general appreciation of the risk of falling due to spillage and that she was not aware that margarine had been spilled on the day of her accident at the point where she slipped. In any event, his Honour found, the margarine's presence was masked or disguised by the similarity between the colour of the margarine and the creamy yellow colour of the floor tiles. 24 He concluded that only a person specifically looking for spillages was likely to have noticed the spilt margarine, but that a person engaged in other activities being carried out at a fast pace and under a degree of pressure would be quite unlikely to have an opportunity to observe any such spillage and to take action to avoid slipping on it. 25 The primary judge thought the case which had greatest analogous force was McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 in which the High Court found that an employer was required to take into account in devising a system of work the possibility of inadvertent and negligent conduct on the part of, inter alia, its employees. 26 He concluded that as far as the respondent was concerned the most that could be said was that she was inadvertent to the particular risk of which she was generally conscious, that is the risk of slipping on spillages. While he accepted this was a situation of a person whose attention may have wandered, the primary judge concluded that, if it did, it was because the respondent was in the course of carrying out her employer's requirements and performing her work. His Honour concluded that it must have been foreseeable to the appellant that an employee who was engaged in carrying out other activities, at speed and under the pressure which was commonly encountered, would not have any opportunity or time to conduct a careful inspection of the floor, inch by inch, as she moved about it in a hurried way in the course of her performance of her other duties. He concluded that the possibility of inadvertence on the part of an employee was obvious and understandable and was a matter which the appellant was required to take into account in discharging its duty of care. 27 Accordingly, he held that the respondent had established that the appellant was in breach of its duty of care towards her. 28 The primary judge rejected the appellant's submission that the respondent had been guilty of contributory negligence. He referred to the line of authority that mere inadvertence on the part of an employee may not amount to contributory negligence: see Commissioner for Railways (Qld) v Ruprecht [1979] HCA 37; (1979) 142 CLR 563, McLean v Tedman, above, Sungravure Pty Limited v Meani [1964] HCA 16; (1964) 110 CLR 24 and Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492. 29 Accepting that the respondent was aware, in a general sense, of the risk posed by the "ever present situation of spillages in the dining room", the primary judge concluded that, at best, the respondent's conduct amounted to mere inadvertence, inattention or misjudgment bred of familiarity and repetition, in circumstances where she was required to carry out tasks urgently to keep up with the requirements of a large number of diners and was preoccupied with the matter in hand at the time of her accident. He observed that the nature of the spillage and its background of creamy coloured tiles would have diminished the respondent's ability to "pick out the spillage on which she slipped".

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33 He also contended that the primary judge's finding that the respondent's duties required her to carry out her work at a pace which made it difficult if not impossible for her to attend to the cleaning of the floor during the meal time was not open on the evidence, either as a matter of generality or on the day she was injured. 34 Mr Bartlett also argued that the primary judge's finding that there was a reasonably practical alternative system of work involving the engagement of another person to keep watch for spillages and ensure they were cleaned up immediately had about it "a sense of unreality (particularly in the commercial world)". He contended that an employer was not obliged to and could not, remove all risks in carrying out work activities. He submitted that in determining whether the appellant ought to have provided another system, it was necessary to consider not only the degree of risk of accident and injury likely to result if no alternative system was implemented but also the disadvantages, if any, of taking the suggested precaution. He argued that the onus of proving that it was unreasonable not to implement the alternative system lay on the respondent: Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18; Nelson v John Lysaght (Australia) Ltd [1975] HCA 9; (1975) 132 CLR 201. 35 Finally, Mr Bartlett submitted that, as a matter of causation, the primary judge had speculated as to whether the alternate system he found the appellant ought to have adopted would have identified and removed the danger. He contended that there was no evidence as to how much margarine was on the floor, when it was dropped or whether its presence on the floor would have been readily apparent even if the alternate system was implemented, having regard to the fact that the floor tiles were a creamy yellow colour. 36 Dealing with contributory negligence, Mr Bartlett submitted that the primary judge's conclusion that the appellant had not been guilty of contributory negligence had failed to take into account that the respondent had been responsible for cleaning the dining room and looking out for spillages which she was aware had taken place in the past. He contended that the respondent's failure to look where she was walking was a failure to take reasonable care for her own safety. 37 Mr Bartlett also contended that the primary judge had failed to apply the objective test of a reasonable person in the position of the respondent in determining the issue of contributory negligence: see Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10; Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552. The appellant submitted that an experienced dining room attendant such as the respondent ought to, and would, have looked while walking through a dining room, knowing there was a real possibility there could be food spillages on the floor. The appellant conceded that it would be a different matter if the respondent had looked where she was going, but had failed to notice the margarine because its colour had possibly blended with the colour of the floor. 38 The appellant submitted that the respondent's contributory negligence ought to be assessed in the order of approximately 30%.

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Liability: consideration 43 In my view the appellant's argument that the system of work it had devised was safe even though it required the respondent to clean spillages which occurred during the luncheon period must be rejected. 44 In Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; (2004) 78 ALJR 907 in their joint judgment (at [34]), Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ emphasised the non-delegability of the employer's common law duty to take reasonable care for their safety. They referred to Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 where Deane J said (at 694): "[I]n the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer's duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear." 45 The Court emphasised (at [44]) that the common law duty to take reasonable care for the safety of employees is imposed solely upon an employer and that no equivalent duty is imposed upon an employee. Their Honours referred to Nicol v Allyacht Spars Pty Ltd [1987] HCA 48; (1988) 165 CLR 306 at 625 where Dawson J said: "[I]t does not seem to me that the duty of an employer and an employee in such regard can ever be co-extensive or co-terminous. The duty is that of the employer and even if the employee is entrusted with its performance it remains an independent obligation of the employer of a more comprehensive kind to ensure that reasonable care is taken. " (emphasis added) 46 In dealing with a submission concerning whether or not Andar had breached its duty to provide a safe system of work, the joint judgment (at [54]) identified a system of work as "the practice and method adopted in carrying on the master's business of which the master is presumed to be aware and the insufficiency of which he can guard against": see Wilsons and Clyde Coal Co Limited v English (1936) SC 883 at 904. The obligation to take reasonable steps to ensure there was a safe system of work required the employer "to develop, and maintain, a methodology or system which would achieve that result". The Court referred to its decision in Nicol as demonstrating "that an employer may be liable for breach of the duty notwithstanding that the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system". 47 The principles governing an employer's duty of care to employees were also emphasised in the High Court's decision in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 at [12] in the joint judgment of Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ: "12. … An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards . The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work." (emphasis added) 48 The evidence concerning the appellant's system of work demonstrates, in my view, that it failed to discharge its duty of care in the manner required by these decisions. In particular, in circumstances where there was a real risk of injury to employees in the respondent's position of slipping on food dropped on the floor, it failed to devise a method of operation for the performance of the respondent's work which eliminated the risk, nor did it provide of adequate safeguards against the risk. Requiring the respondent to carry out cleaning activities was not a satisfactory system in circumstances where there was, in my view, evidence which supported the conclusion that she could not discharge that responsibility having regard to her other duties and the pace at which she was required to work. 49 There was evidence from the respondent which supported the primary judge's finding that she did not have time to carry out her duties as a cleaner during the luncheon period. The respondent gave the following evidence in chief: "Q. During the time that lunch is going on is there any cleaning up of the floor that occurs? A. No, we don't have time to do that. Q. After they've all left? A. Yes. … Q. On an average day at what sort of pace would you be working? A. Well, I'd be just working normal pace, you know. Q. How fast would you be working is what I'm asking you? A. Well, when it was very busy we'd have to be hurrying to get everything done for when the next lot come in for dinner. … Q. That's telling me what they have spilt on the floors but I'm actually asking you - if you listen to my question please - how they spill those things? What happens? What have you seen happen? A. I haven't actually seen them doing it really. Because we're just so busy, you know." 50 During cross-examination she gave the following evidence: "Q. You were conscious, weren't you, of as you walked around, you were conscious of the fact that, that is, during the period 12 until 1.30, you were conscious of the fact that food was being spilt in the dining room? A. Not at all times because when you're getting busy you're not looking down.

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Alternative system 55 The appellant submits that it is a matter of speculation whether an alternate system of work such as that identified by the primary judge was likely to reduce the risk of injury. In particular, Mr Bartlett argued that in circumstances where keeping the floor clean was "an integral part of [respondent's] duties … there is a sense of unreality (particularly in the commercial world) of having someone additionally employed just to stand in the dining room for the purposes of scouring the floor to ensure no spillage occurs". 56 In particular, Mr Bartlett argued, that even if the system the primary judge proposed had been implemented, a person with the specific duty of watching out for spillages probably would not have seen the yellow margarine on the yellow tiled floor. He also argued that there was no evidence as to how long the margarine had been on the floor. 57 In my view the primary judge was entitled to conclude that the alternate system propounded by the respondent was a reasonable and practicable one. There was evidence before his Honour, given by Mrs Cotter, that such a system had been employed when the Army had been in charge of the catering. Indeed, the appellant's submissions came close to saying that an employer did not have to go to the expense of engaging an employee reasonably necessary for a safe workplace. That is not so. 58 The respondent bore the legal and evidentiary burden of establishing that the appellant had breached its duty of care towards her. In order to demonstrate that breach, she had to be able to point to a reasonably practicable precaution or alternative course of conduct that would have avoided, or reduced the consequences of, the injury she suffered: Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 632 at 362 per Dixon CJ, 369 - 370 per Taylor and Owen JJ; Vozza v Tooth & Co Limited [1964] HCA 29; (1964) 112 CLR 316 at 319 per Windeyer J: see also Australian Iron & Steel v Krstevski [1973] HCA 42; (1973) 128 CLR 166. 59 While it was incumbent upon the respondent to provide some evidence from which the primary judge could find that the alternative system she proposed was a practicable one that was reasonably open to the appellant (Neill, Vozza) in some cases common knowledge or common sense is sufficient to discharge that obligation see (Hamilton v Nuroof (WA) Pty Ltd; Neill at 368 per Taylor and Owen JJ). In this case the appellant did not take any point that the alternate system the respondent proposed could not be entertained in the absence of technical or expert evidence. No doubt this was because the question whether having another person on duty keeping an eye out for spillages as they occurred in order to detect and remove, or at least isolate, spillages during meal times was one which did not require technical or expert evidence. 60 The appellant's essential argument was that even if there had been a proper monitoring system the respondent may still have been injured. I would reject that argument. It was not necessary in order that the respondent discharge her onus of proving that the appellant had breached its duty that she prove that the appellant's failure to implement an alternative system of cleaning the floor in fact caused her to slip. It was merely necessary that she prove that it was probable that it did. In other words the question is whether it is possible to infer that the failure to devise a system of having a third person on duty during the lunch period solely responsible for watching out for spillages and with the responsibility of removing those, or at least isolating them if they occurred, would probably have detected the margarine before the respondent slipped on it. In my opinion the respondent discharged that burden through Mrs Cotter's evidence. 61 As to the point that the margarine had not lain on the floor for sufficient time to enable a person specifically employed for that purpose to detect its presence and clean it away, it is an available inference, that a person employed to be responsible for detecting and cleaning up spillages particularly in the highly trafficked area where the respondent slipped, would have observed somebody dropping what appeared to be a not insubstantial amount of margarine and would have either cleaned it up immediately or erected one of the warning signs which appeared to be available to warn of such slippages prior to their removal.

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Damages: background 67 The respondent was 57 at the time of the accident having been born on 18 September 1941. She had left school without the Intermediate Certificate. She had worked in clothing factories and as a waitress over the years up to 1984. Thereafter, she had worked as a kitchen hand cleaner for about 9 years. She had been employed at Holsworthy Army Base as a canteen assistant from 1993. Her first employment in the latter capacity was with the appellant's predecessor. 68 There was no dispute before the primary judge as to the essential nature of the injuries the respondent suffered and their immediate consequences. She sustained a low back injury with disc injury at L4/5, L5/1 levels and right nerve root compression at L5. The appellant did not tender any medical reports. It relied upon one report from a physiotherapist and some notes from a medical centre the respondent apparently attended. The respondent tendered a number of medical reports. None of the doctors were cross-examined. 69 By the time of the trial the respondent had returned to work at Holsworthy. She was working 7 hours a day, which was only 1 hour less than prior to her accident. She was also performing most of the tasks of that employment other than some of the heavier aspects such as heavy dishwashing and using a polisher and mop on the floor. 70 The primary judge identified the real issue in relation to damages as involving the respondent's future prospects, although there was also a dispute concerning past and future domestic assistance. 71 The respondent gave evidence that she was never absolutely free of back pain which became worse when she tried activities such as gardening. 72 The primary judge concluded that the evidence disclosed that the respondent had been in relatively good health prior to the accident and had a good work record which she had maintained as far as possible since the accident consistent with the level of her disabilities. He found that her life had been "significantly and permanently affected" by her injury and that the situation was unlikely to improve. 73 The primary judge referred to a report by Dr Teychenné, a Consultant Neurologist, who expressed the opinion on 1 August 2003 that the respondent had a 22.5% permanent impairment of the lumbar spine or back with a 25% permanent loss of use of her right leg at the level of the knee and above, incorporating the right leg as a whole and a 20% permanent loss of use of her left leg at the level of the knee and above, incorporating the left leg as a whole.

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74 The primary judge regarded Dr Teychenné's opinion as illustrating the relative severity of the level of permanent impairment affecting the respondent as a result of the accident. 75 Other medical opinions tendered on behalf of the respondent were broadly consistent with Dr Teychenné's view. 76 The damages issue was complicated by the fact that some time after the accident the respondent developed pain in her mid-back area as well as in her neck and upper arms. The pain in the mid-back was apparently due to osteoporosis while the problems in the neck and upper arms related to cervical disc lesions. Neither of these complaints related to the accident. Before this Court the appellant contended that the primary judge ought to have taken into account the effect of those conditions in considering the damage which flowed from the impairment she had suffered as a result of the injuries consequent upon the accident. 77 The primary judge observed that Dr Teychenné did not appear to have expressed any recent direct or clear opinion about the respondent's work capacity. He noted that Dr Teychenné had expressed the view in a report dated 1 August 2003 that: "… the [respondent] was not suited for activity which required heavy lifting … sudden sharp movements of the neck … for activity required heavy lifting associated with rapid, excess or extreme movement of the neck." 78 The primary judge said he found it difficult to know what to make of that assessment as it was expressed in association with Dr Teychenné's discussion of the respondent's complaints of pain affecting her upper limbs. He concluded that it was not possible to place any firm weight on that opinion insofar as work was concerned, at least in relation to the injuries for which the respondent was being compensated. He did note, however, that the evidence relating to the respondent's cervical problems was "significant" but appeared to discount it on the basis that the respondent did not advance those conditions as being attributable to the accident. 79 Subsequently, however, the primary judge acknowledged reports, particularly of Dr Teychenné, concerning the respondent's neck and shoulder problems and a carpal tunnel problem which she had developed since the accident as well as evidence of a bone mass density investigation which disclosed the respondent had an increased risk of osteoporosis and consequent fractures. The primary judge recognised that these were not minor matters and needed to be given appropriate consideration and weight in assessing the respondent's condition particularly as regards the future. 80 The primary judge concluded that the injuries and disabilities the respondent had suffered as a result of the accident imposed significant restrictions on her life both socially and in terms of her work capacity. The heads of damages which were debated before this Court should be viewed in the light of that finding. 81 He assessed the respondent as representing 35% of a most extreme case. On this basis he awarded her $82,500 for non-economic loss. The appellant does not challenge that figure.

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Future economic loss 82 There was a debate before the primary judge as to the age at which the respondent would have ceased work. The appellant contended that she would have retired at 65 while she gave evidence that she would have worked until 67 or 68. The primary judge accepted that, but for the accident, she would have retired at 67 or 68 rather than 65. Accordingly, he found that her future wage loss ought be calculated for a period of 5 years until she would have turned 67. 83 The respondent had submitted that her prospects of remaining in the appellant's employ should not be viewed optimistically and that the primary judge should assess her future economic loss on the basis of 100% loss of earning capacity from the date of trial. She did so on the premise that while the appellant had continued to employ her until the date of trial, once the appellant's obligations under s 49 of the Workplace Injury Management and Workers Compensation Act 1998 to provide her with light duties ceased by an award of common law damages (s 151B of the Workers Compensation Act 1987 which continued to apply to her despite its repeal by the Workers Compensation Legislation Further Amendment Act 2001; see Schedule 6, Part 18C, cl 9, Workers Compensation Act 1987) so, too, would her employment. 84 Counsel for the respondent contended that once the proceedings were over it was probable that the appellant would terminate the respondent's employ. He tendered an exchange of correspondence between the respondent's solicitors and the appellant's solicitors in which the respondent sought a guarantee of continued employment on the assumption of good behaviour to which the appellant's solicitors' response was that the appellant was not prepared to provide that guarantee. 85 The appellant contended at trial that the primary judge should proceed on the assumption that the respondent's employment would not be in jeopardy once her common law proceedings were resolved. It submitted that to the extent there was any uncertainty as to her future employment the primary judge should award a cushion of an undefined amount. 86 The primary judge accepted that the "change in the legal regime which would flow from the successful outcome of these proceedings" was a reason for looking closely at the prospects of the respondent's employment with the appellant continuing. He concluded that there was only a remote prospect that she would be able to maintain that position into the indefinite future. 87 He also concluded that while the respondent had a good work record and her continued working at the appellant's premises demonstrated she had a residual earning capacity, her age, experience and qualifications and physical restrictions should put her into the category of "odd lots" so far as employment was concerned. 88 His Honour also referred to the necessity to take into account the impact on the respondent's earning capacity of the physical problems of her neck, shoulders and carpal tunnel syndrome which, in his view, were not "easy to evaluate in terms of dollars and cents". 89 Taking all of those matters into consideration the primary judge concluded that he should accept that the respondent should be evaluated as having an 80% loss of her earning capacity rather than the 100% claimed by her counsel.

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Future economic loss: appellant's submissions 93 The appellant submitted that in calculating future economic loss the primary judge had not given sufficient weight to the respondent's cervical condition, her bilateral carpal tunnel syndrome and the opinion her treating neurologist, Dr Teychenné had expressed concerning her work capacity. 94 The appellant pointed out that the primary judge had expressed the view that Dr Teychenné had not proffered an opinion as to the respondent's work capacity whereas, in fact, in a report dated 1 October 2003 after referring to his investigation of the respondent's cervical spine condition, Dr Teychenné said: "She had evidence of disc prolapses at C4/5 and C5/6 and I did find evidence of a Right C5/C6 radiculopathy. She also had a bilateral carpal tunnel syndrome. The patient was not a surgical candidate in regard to the cervical spine, however the patient was restricted for any form of work which required excess movement of the neck, any form of occupation which required heavy lifting associated with rapid, excess or extreme movement of the neck. She was not suited for any occupation which required to her to sit, stand in a constant position holding her neck in a constant position for a prolonged period of time. She was particularly not suited for occupations which required her to flex the neck over such as when flexing the neck over to clean tables." (emphasis added) 95 The appellant also contended that the primary judge had placed undue weight on the correspondence between the parties' legal representatives concerning the respondent's request for a guarantee of future work. The appellant submitted that its solicitors' response to that request could not be interpreted as meaning that the appellant was going to dismiss the respondent once the case was over. 96 Insofar as the primary judge had appeared to regard the cessation of the light duties' obligations under the Workers Compensation Act 1987 as relevant, the appellant pointed out that such matters primarily related to the employer's insurer and not the appellant. 97 Accordingly, the appellant submitted that there was no basis upon which the primary judge could infer that the respondent's future economic loss should be calculated on the basis that she would be unemployed from the time the trial concluded. In the appellant's submission once the respondent's other physical problems were taken into account the injuries she had suffered as a result of the accident had only marginally affected her future earning capacity. The appellant contended that effect would be adequately compensated by a buffer of about $20,000 which was the equivalent of a year's pay.

[37]

Future economic loss: the respondent's submissions 98 Mr Lidden submitted that the evidence was, in substance, that while, by the time of the trial, the respondent was working up to seven hours a day and had been doing so for one year, she was unable to perform her job fully and was, in effect on light duties. He submitted that the realistic possibility of the appellant keeping the respondent on in those circumstances was small. He submitted that it was on this basis that the primary judge had concluded that the respondent would be unemployed once the trial concluded. 99 Mr Lidden also argued that the primary judge's conclusion that the respondent's employment would cease once the case was finalised was supported by reference to s 49 of the Workplace Injury Management and Workers Compensation Act 1998 which, in substance, provides that if a worker is totally or partially incapacitated and is able to return to work the employer is liable to pay compensation and must, at the request of the worker, provide suitable employment, an obligation which ceases when weekly compensation ends by the making of a common law award: Workers Compensation Act 1987, Schedule 6, Part 18C which preserved s 151B of the pre-27 November 2001 legislation. 100 Mr Lidden submitted that the cervical problems upon which the appellant had focussed much of its argument concerning damages had assumed little significance at trial. He pointed out that she was not asked any questions about the effect of her cervical condition on her ability to perform her work. He contended that Dr Teychenné's opinion concerning the limits the respondent's cervical condition would have on her work capacity did not appear to be reflected in fact having regard to the respondent's ability to carry on her duties, save to the extent that she could not load a cordial machine. In any event, he argued Dr Teychenné's opinion was reflected in the reduction of the damages for future economic loss by 35%. 101 The respondent also submitted that the appellant carried the evidentiary burden of establishing the extent to which the respondent's cervical and any other condition other than that caused by the accident played a part in restricting her physical activities: see Watts v Rake [1960] HCA 58; (1960) 108 CLR 158. 102 Mr Bartlett responded to those submissions by contending that the appellant's failure to cross-examine the respondent about the effect her cervical condition had on her ability to carry out her work duties was of no moment having regard to Dr Teychenné's reports. He also argued that s 49 did not support the inference for which the respondent contended having regard to the fact that the weekly benefits payable under that section were borne by the insurer.

[38]

Future economic loss: consideration 103 There was no controversy that if the respondent's earning capacity had been wholly or partially lost as a result of an event independent of her accident, that was to be taken into account in arriving at her damages. As I have noted the primary judge took the respondent's cervical condition into account when assessing her future economic loss. It was one of the matters which led to his Honour in attributing only 80% of the respondent's loss of earning capacity to the accident, rather than the 100% claimed on her behalf. 104 In dealing with the challenge to the award for future economic loss it is important to appreciate the significance of the primary judge's conclusion that, by virtue of her age, her experience and qualifications, the respondent's physical limitations "put her in the category of 'odd lots' so far as employment is concerned". The expression "odd lot" refers to the work capacity of someone who is so impaired that the person is "only able to do certain very special jobs, depending on finding a very special employer who, either through compassion or because he has a special job, is able to give him employment, but any ordinary class of work he is not able to do …": Foster v Wharncliffe Woodmore Colliery Co Ltd [1922] 2 KB 701 at 715 per Scrutton LJ explaining the references to "odd lot" in Cardiff Corporation v Hall [1911] 1 KB 1009. The "odd lot" doctrine applies to claims for workers compensation "where the residual capacity to work of a particular claimant has been treated as so confined that, in reality, there is total incapacity for work": see Hill v Repatriation Commission [2004] FCA 832; (2004) 207 ALR 470 at [50] per Mansfield J; see also Bavcevic v The Commonwealth [1957] HCA 67; [1957] 98 CLR 296; Fletcher v Douglas [1934] WCR (NSW) 88. 105 The primary judge's reference to the respondent being in the category of "odd lots" was an analogical illustration of the limitations she faced on the open labour market should her current employment cease. 106 I turn to the appellant's first complaint of error. It might be accepted, as the appellant submits, that the primary judge did not refer to the opinion Dr Teychenné expressed about the effect of the cervical condition on the respondent's work capacity in his report of 1 October 2003. However, his Honour did refer to the opinion Dr Teychenné expressed about the effect of the respondent's cervical condition on her capacity for work in his 1 August 2003 report - a report written only two months before the hearing. The opinion Dr Teychenné expressed in his October 2003 report concerning the effect of the respondent's cervical condition on her work capacity did not differ in substance from that he expressed in his August 2003 report. 107 It should be noted that in his August 2003 report Dr Teychenné also expressed an opinion concerning the impact of the respondent's lumbar condition on her work capacity. He opined: "At the time of my assessment the patient was not suited for activity which required heavy lifting. She was not suited for activity which requires sudden sharp movements of the lumbar spine. She was not suited for activity which requires her to sit or stand in a constant position holding her back in a constant position for a prolonged period of time. She was not suited for activity which required heavy lifting associated with rapid, excess or extreme movement of the lumbar spine." 108 It is apparent that Dr Teychenné was able to distinguish between the effects the respondent's cervical and lumbar spine conditions had on her earning capacity. While both could be said to affect her ability to perform her duties as a dining room attendant, it could not be said merely from reading his reports that the cervical condition was an independent condition which diminished the respondent's earning capacity to the same extent as the lumbar condition. It was, as Mr Lidden submitted, for the appellant to undertake the evidentiary task of excluding the effect of the accident as a continuing contribution to the respondent's diminished earning capacity: Watts v Rake; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 at 168 per Barwick CJ, Kitto and Taylor JJ. The primary judge was clearly not satisfied that the appellant had discharged that burden. 109 In my opinion the appellant has not established that his Honour's award for future economic loss should be reduced by reference to Dr Teychenné's October 2003 opinion. 110 The appellant's second complaint, that the primary judge was not entitled to take the view that the respondent's employment with the appellant would cease once the proceedings concluded, has more substance. 111 In my view, while it was open to the primary judge to conclude that that employment would cease prior to the date his Honour concluded the respondent would otherwise have continued to work, it was not reasonable to infer that her employment would cease immediately the trial concluded. 112 The exchange of solicitors' correspondence upon which the respondent relied did not support that inference. The appellant was under no obligation to provide the respondent with a guarantee of continued employment. Indeed, as was pointed out during argument, the respondent had signed a document which acknowledged that the appellant could not guarantee employment beyond the expiry date of its contract at the Holsworthy Army Base. Although no expiration date for the contract was identified in that acknowledgment, the apparent insecurity of the appellant's contract served to underscore the comparable insecurity of the respondent's employment. 113 Nor, in my view, was it open to the primary judge to infer that the cessation of the light duties regime once the respondent's proceedings were concluded by a common law award supported the inference that the respondent's employment would cease. 114 The respondent was clearly regarded as a valued employee whose services had been retained when the appellant took over the catering contract at Holsworthy in 1993. She had retained her employment for the four years following the accident, albeit during the light duties regime. 115 The primary judge's conclusion that there was only a "remote prospect" that the respondent's employment would continue after the trial founded his conclusion that the respondent was entitled to future economic loss from the trial until the age she would otherwise have retired. The conclusion that this premise was incorrect means this head of damages must be reassessed. 116 The assessment of damages by reference to future and necessarily hypothetical events (the "process of estimation of possibility": Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643) requires the Court to engage in an imprecise and indeterminate exercise to be carried out "within very broad parameters": State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 AT [71] per Heydon JA.

[42]

Domestic assistance: the appellant's submissions 127 The appellant submitted that the evidence did not support the primary judge's conclusion that she required domestic assistance of 14 hours a week, an award Mr Bartlett submitted was consistent with someone who was grossly disabled. 128 Mr Bartlett contended that the respondent's limitations on performing domestic tasks were attributable to her neck condition. He referred to the frank evidence the respondent gave in cross-examination: "Q. Did you develop neck pain at some stage during the number of years following this accident? A. Yes I did. Q. You first complained to Dr Helou about neck pain on 8 May 2002 didn't you? A. It would have been about that I think. Q. Is that causing you some problems still? A. Yes. Q. What problems does that create for you? A. I get pains right across here and across my neck here. ** Q. Does that prohibit you doing certain things? A. Yes I can't do other things because of that. Q. What sort of things can't you do because of that? A. Like I used to do all the cordials but I can't do that now. Like, put cordials into the machines. Q. Does it stop you doing certain things around the house? A. Yes. Q. What sort of things? A. Well I can't do the vacuum very good now. My son washes the bath and everything out for me. Q. Is that because of the neck pain? A. Yes. If I just lean a certain way, that's when I start getting the pain. Q. What about the pain in the mid spine area, does that cause you difficulties still? A. Not in mid part but I'm still getting the pinching in my hip and down my leg and my numbness in the toes." [**The location of the first area identified in the answer I have asterisked does not appear from the transcript] 129 The appellant also contended that it was unrealistic to award the respondent compensation for domestic assistance until she turned 84 because, if she had not been injured in the accident or suffered her cervical problems, the aging process would have meant that once she turned 75 she would not have carried out heavy domestic duties in any event. 130 The appellant also contended that if (as the primary judge had inferred in relation to the respondent's future economic loss) she ceased work, then that would reduce the exacerbation of her back pain caused by her work activities and thus enhance her capacity to carry out domestic duties. 131 Mr Bartlett relied, in this respect on Dr Helou's evidence that the respondent suffered increased symptoms when her workload increased. Accordingly, as I understand his submission, if the primary judge was correct in concluding the respondent would lose her job when the case finished and would be unsuccessful in procuring alternate employment, her capacity to undertake domestic tasks would be enhanced, at least insofar as light activities were concerned. 132 The appellant contended that the sum the primary judge had awarded the respondent in respect of domestic assistance should be reduced to 4 hours a week both for the past and future but be curtailed as and from when the respondent turned 75.

[44]

Domestic assistance: consideration 135 The respondent gave some evidence which was capable of supporting an inference that her son assisted her with domestic duties to the extent of "a couple of hours". That answer was immediately preceded by an interrupted exchange between the respondent and her counsel during which she appears to have said that her son carried out the activities for that period of time two or three times a week. She said that her son vacuumed twice a week and that it took about an hour to vacuum the entire house. 136 In cross-examination the following day and, no doubt, without the assistance of a transcript of the previous day's evidence the appellant's counsel put to her that she had suggested the previous day that "your son helps out two hours a day", a proposition with which she agreed. However, the cross-examiner proceeded to undermine that evidence by establishing that the respondent was unable to say what her son did for two hours a day because she was at work. She reiterated the evidence she had given in chief that her son did the vacuuming and cleaned the bath. In addition, her son cleaned the bathroom and the laundry, exercises to which the respondent does not appear to have allocated a specific time, but which it might be inferred would, at longest, have taken an hour and were unlikely to be done daily. Other than those activities and some assistance in respect of heavy shopping, some ironing and lawn mowing activities the respondent gave no details of other domestic assistance she required. 137 In my view, the appellant's submission that an appropriate assessment for the amount of domestic assistance the respondent required was closer to four hours a week for the past and the future was correct. I cannot, however, accept the appellant's submission that the period for which the respondent required domestic assistance should be confined to the time when she is seventy-five or thereabouts. The judge recognised that the conventional 15% deduction for vicissitudes was inappropriate because of matters which would probably have caused the appellant to need domestic assistance in any event, and by a reduction of $22,000 increased the deduction to about 30%. That was an available means of allowing for the appellant's ageing. 138 In my view, the respondent ought to have been allowed four hours a week for past and future domestic assistance. Insofar as domestic assistance for the future is concerned that amount should be reduced by the discounts applied by the primary judge. 139 The parties should bring in figures to reflect the calculations of this head of damages.

[48]

Future out of pocket expenses: consideration 147 The appellant's principal challenge to the out of pocket expenses awarded to the respondent is based on the proposition that it was apparent from Dr Teychenné's 2 October 2003 report that the respondent had been having acupuncture for the problems she had with her neck and arms. 148 However, it is equally plain that the respondent had had acupuncture when her back flared up: see Dr Helou, 5 July 2002; Dr Helou, 30 July 2003. Tilak Kalra, who appears to have provided the acupuncture treatment, said in an undated report (served on 9 July 2002) that the respondent had been treated with acupuncture and remedial massage since June 1999 for her lumbar condition. Dr Sheridan, a neurosurgeon to whom the respondent was referred by her general practitioner, also referred to the respondent as having tried acupuncture, hydro-therapy and gym for her back condition. Dr Selby-Brown referred to the acupuncture treatment the respondent was receiving for her back condition in a report of 26 July 2000, which was year or to before the respondent's cervical problems became manifest. 149 There was, therefore, ample evidence to support the primary judge's conclusion that the respondent was receiving acupuncture in respect of her lumbar condition. It may well be that she was also receiving it for her cervical problems however, as Mr Lidden pointed out, the allowance for $100 a week took into account that the respondent's medical expenses included amounts not referable to her lumbar condition and had been discounted by virtue of those matters. 150 The respondent's Schedule of Damages sought an amount of approximately $60,000 in respect of future out of pocket expenses. That amount was discounted by both 5% and 15% on the basis that items such as acupuncture and massage were unlikely to continue forever if they were not significantly helping the respondent. 151 Insofar as the appellant relies on the proposition that if, as the primary judge inferred would be the case, the respondent's employment ceased immediately after these proceedings concluded, his Honour's allowance did not consider the probability that her need for regular treatment would diminish. 152 It appears to me that that factor is taken into account by reason of the deduction for vicissitudes and I would not further reduce the respondent's future out of pocket expenses in this respect. 153 The appellant complained that the allowance for future out of pocket expenses included an amount for physiotherapy every second week and that an allowance for such regular physiotherapy treatment was "most unusual". The primary judge does not refer to an amount being included in the future out of pocket expenses for physiotherapy. It may be that the appellant is correct in this respect. However, to the extent that its complaint is based on the proposition that such treatment should not be required regularly for such a period of time again, in my view, that submission is reflected in the discount of the future out of pocket expenses for vicissitudes. 154 I would not disturb the primary judge's award in respect of future out of pocket expenses.

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Cases Cited (50)