B P Australia Pty Ltd v Tarren [2006] NSWCA 305 | Case summary

Friday 3 November 2006 BP AUSTRALIA PTY LTD v ELISE TARREN Judgment 1 IPP JA: This appeal concerns a judgment and verdict in the amount of $559,431 for damages for personal injuries in favour of the respondent against the appellant. 2 The respondent's claim arose out of injuries to her back. She sustained these while removing safes from service station premises she managed at Bondi and Woollahra. The appellant was the owner and occupier of the premises, but not the respondent's employer. 3 On appeal the appellant accepted that the trial judge, Sidis DCJ, was entitled to find that the appellant owed the respondent a duty of care, and that the duty of care was akin to that owed by an employer, TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1. 4 The trial judge found that the appellant had negligently directed the respondent to move the safes, which were very heavy, without adequate instruction as to how to undertake this task, and in the absence of proper assistance. 5 Initially, Mr Rewell SC, who appeared for the appellant, argued that there was incontrovertible evidence, firstly, to the effect that the respondent did not move the safes, and, secondly, that, if she did move the safes, she did not injure her back in doing so. 6 Later, Mr Rewell accepted that the evidence on which he relied (the respondent's diary, a claim form that she completed, and several medical reports) was not incontrovertible, but submitted that the evidence in question carried so much weight that it rendered the judge's findings, on which she relied in holding the appellant negligent, glaringly improbable. 7 The thrust of Mr Rewell's argument was that, in the documents on which he relied, the respondent did not assert or complain that she had injured her back in moving the safes. 8 There was, however, ample evidence that supported the judge's challenged findings. This evidence came largely from the oral evidence of the respondent herself, but also emanated from Mr Hede, the respondent's superior. 9 Mr Hede testified that the respondent had complained the day after removing two of the safes that she had hurt her back in doing so. At trial the appellant did not, or was not able to suggest any other way in which the safes could have been moved, other than at the instance of the respondent. In addition, in the medical reports and in the claim form, there are various references to the respondent moving safes. 10 In my opinion, nothing to which Mr Rewell has pointed concerning her Honour's factual findings justifies appellant intervention in accordance with the well-known authorities. 11 The judge found that the respondent was not guilty of contributory negligence. This the appellant challenged on two grounds. 12 The first was that the respondent should not have moved the safes by her self, but should have waited for three other men, who were involved in moving equipment at one of the sites, to do so. This submission was based on an answer given by the respondent in cross-examination when she said that three men, Frank, Damon and Assard were to move other stock by trailer from the premises. According to the respondent, these three men were not present at the time she moved the safes. Mr Rewell submitted that it was unnecessary for the respondent to have carried out the moving when she did, and that she should have waited for the three men to return. 13 Two points may be made that in my opinion rebut this argument. 14 Firstly, in cross-examination, it was not put to the respondent that she should have waited. She had said that the safes had to be moved that day. It was not suggested to her that she was careless in not waiting for the three men to do the job. Secondly, in his closing address to the judge, counsel then appearing for the appellant did not put this argument and, understandably, the judge did not deal with it. 15 Having regard to the way this issue was handled at trial, I am unpersuaded that the judge should have taken the matters relied on by Mr Rewell into account. They were left in far too vague a state for any reliable inference to be drawn from them. 16 Secondly, Mr Rewell submitted that the respondent did not take adequate care for her own safety. He pointed out that two of the safes weighed 155 kilograms each and the other two weighed more than that. He submitted that the risk was obvious and the respondent should not have taken the risk. 17 The respondent had been given specific instructions, according to her testimony, to arrange for the safes to be moved. Mr Hede was present when she moved the safe. When the respondent commenced the moving task he turned away and said, "I am not seeing this." The respondent then said, "This is ridiculous that we have to do this." She said that there should be someone present who knew what they were doing, professional people. Mr Hede replied by saying, "This is head office orders [sic]." 18 Sidis DCJ described the personality of the respondent and how she had advanced without any real educational background over the years to a position of considerable responsibility. She did this by being an energetic, committed and hard working person. On the judge's findings, Mr Hede took advantage of the respondent's dedication and sense of duty. In my opinion it is unrealistic, taking into account the particular circumstances of the case, to suggest that the respondent should reasonably have disobeyed the instruction she was given. 19 Next, Mr Rewell sought to place reliance on section 151Z(2) of the Workers Compensation Act 1987 (NSW). He submitted that the respondent's employer was also guilty of negligence and that negligence had contributed to the respondent's injury. He submitted that, in assessing the damages to be awarded to the respondent, due allowance should have been made for the employer's liability. 20 The judge did not make any such allowance. The reason for this omission was that s 151Z(2) was not pleaded, was not argued and her Honour was not asked to make any allowance based on the section. 21 Forstaff Blacktown Pty Limited v Brimac Pty Limited (2005) Aust Torts Reports 81-814 is authority for the proposition that a party should plead or otherwise make known to its opponent any reliance that it proposes to place on s 151Z(2). In my opinion, it is not appropriate on appeal to raise this section as a defence for the first time. Resolution of the issues raised by the section require factual findings to be made, factual findings relating to negligence, factual findings which are best determined (at least initially) by the trial judge. 22 Finally, Mr Rewell raised what he described as the "two injuries point". In written submissions filed on behalf of the appellant the following was said: "In assessing damages for non-economic loss under s 16 of the Civil Liability Act 2002, where more than one compensable injury has been suffered, the Court is required to assess the damages under s 16 separately for each injury. It is impermissible to aggregate the effects of two injuries, or to treat two injuries as a single injury (as the Trial Judge did): see Muller v Sanders , Nominal Defendant v Sanders [(1995) 21 MVR 309]. (While these cases deal with the provisions of the Motor Accidents Act 1988, the principle is equally applicable to the CLA.)" 23 In written submissions filed on behalf of the respondent the following was said: "The Statement of Claim in this matter pleads but one injury which is disc ruptures to the respondent's lumbar spine. This injury came about as a result of the work done at Bondi and at Woollahra and thus the injury is similar to that considered by the court in Leppington Pastoral Co Pty Limited v Juweinat [2002] NSWCA 228 in that the respondent is claiming one injury resulting from a culmination of a number of incidents arising out of her work. None of the medical evidence tendered in the matter suggested that there was more than one injury. Dr Conrad was of the opinion that it arose out of repetitive lifting in October 2001 (Blue 9.N). Dr Sun refers to 'the injury' (Blue 17.T) which was clinically consistent with lifting and twisting (Blue 19.E)." 24 Mr Rewell pointed to the fact that in the respondent's statement of claim the respondent pleaded each separate event that took place in Bondi and Woollahra as involving separate acts of negligence, each causing a separate injury. 25 The statement of claim, however, after pleading the relevant matters relating to each incident at Woollahra and Bondi asserted in paragraph 12, "As a result thereof, the plaintiff was injured and disabled and suffered loss and damage." The paragraph then set out particulars of injuries and disabilities on the basis that damages were being claimed for one set of injuries caused by both events. 26 The evidence before the judge was entirely on the basis that only one set of injuries had been caused. The appellant at trial did not attempt to mount a case based on the two injuries argument. The trial judge in essence adopted the same approach as described in [22] to [26] in Leppington Pastoral Company Pty Limited v Juweinat [2002] NSWCA 228. In my opinion, in the way in which the trial was run, her Honour was entirely justified in taking this course. 27 I would add that the case on which Mr Rewell relied, namely, Muller v Sanders (1995) 21 MVR 309, is distinguishable from the present as in that case injuries had been caused to two separate parts of the plaintiff's body, each part having been caused by a different defendant. I wish to make clear, however, that I am not intending to express any opinion as to the legal principles to be applied in a case where separate injuries have been sustained. I am resting my decision on the way the case was run at trial and how her Honour dealt with the matter in her judgment. 28 For the reasons I have expressed I would dismiss the appeal with costs. 29 TOBIAS JA: I agree. 30 McCOLL JA: I also agree. 31 IPP JA: That will be the judgment of the court. **********

B P Australia Pty Ltd v Tarren

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