MASON, WILSON AND DAWSON JJ.: The respondent was born in Yugoslavia in 1932. He has spent most of his working life in the metal trades industry, originally in his home country and, since 1960, in Australia. He commenced work with the appellant in August 1979 as a machinist. On 5 December 1979 he was engaged in drilling holes in the flange of cast iron pipes having a diameter of four inches. Each pipe weighed about sixty pounds. On that day work had been in progress for about three hours. The respondent had completed the drilling and stacking of about one hundred and fifteen pipes and was handling another when he collapsed, having sustained a disc lesion in the cervical spine. It is in respect of this injury that he has sued for damages.

2. The respondent had performed work of this kind for the appellant before, and had been instructed in the way he was to handle the pipes. The pipes to be drilled were stacked on a pallet standing to the right of the drilling machine. A pipe would be taken from that stack, lowered to the floor so that one end was placed on the ground and the other placed on the machine and then the worker would lift it from the bottom end and slide it into the jig fitted to the machine. When the drilling was completed the pipe would be released, allowed to slip down until one end was again resting on the floor and then stacked on a pallet standing to the left of the machine. When fully loaded a pallet held forty pipes, arranged in five layers of eight pipes each. However, the learned trial judge was satisfied that at the time he sustained the injury the respondent was using a different method. He was taking a pipe from the pallet and inserting it directly into the machine without first lowering one end on to the floor. Then when the drilling was completed he lifted the pipe from the machine and stacked it on the receiving pallet. The lesion occurred during the course of a lifting movement, but whether before or after the pipe had been drilled is not clear. The appellant's foreman, whose evidence the trial judge accepted in its totality, said that although he had not observed the respondent's method of working on the day of the accident he had noticed on earlier occasions that he was not following the method in which he had been instructed and that on each occasion he had spoken to him about it, asking him to conform. The foreman acknowledged, in cross-examination, that there was some risk of injury if the pipes were lifted in the wrong way.

3. There was a mechanical hoist available for use with the drilling machine and of course its use was essential in the case of the heavier pipes produced by the appellant. The respondent's case at the trial was that he had sought permission to use the hoist on the four inch pipes and that the foreman had refused him permission to do so. But this was not accepted by the trial judge in the light of evidence from the foreman that the respondent had never complained to him that the pipes were too heavy and that he was never denied the use of the hoist. His Honour accepted that the hoist was available for use, and that the foreman thought that it was not necessary to use it for the four inch pipes because they were not overweight but that he had instructed the men, including the respondent, that if anyone thought a pipe was too heavy he was to use the hoist. The foreman said that he had quite often seen men use the hoist whilst drilling four inch pipes.

4. Despite his rejection of much of the evidence of the respondent, the trial judge found the appellant liable in damages for negligence. His Honour was satisfied in the light of the evidence that a safe system of work required a direction that the hoist was to be used as the exclusive method for performing the subject work. It also called for the taking of reasonable steps to enforce the direction. His Honour also found contributory negligence, assessed at 10%, against the respondent on the basis that by adopting his own method of work in preference to using the hoist or following the approved method he greatly increased the amount of lifting and twisting involved.

5. The Court of Appeal, by majority (Priestley and McHugh JJ.A., Samuels J.A. dissenting), dismissed the appeal both in respect of the liability of the appellant and the percentage of contributory negligence assessed against the respondent. The latter did not cross-appeal in respect of the finding of contributory negligence against him.

6. Special leave to appeal was granted to the appellant in the light of a submission that the members of the Court of Appeal who formed the majority had formulated the law governing the duty of care resting on an employer to provide a safe system of work in a manner which was apt to mislead trial courts. It was said that the traditional standard of reasonable care had been departed from to the prejudice of the employer. Whether that be so or not, and we shall consider that question later in these reasons, when the appeal came on for hearing counsel for the appellant was confronted squarely by the judgment of the trial judge against his client, which called for consideration independently of the alleged errors of the Court of Appeal. That judgment was founded on the conclusion expressed by his Honour as follows:

"I am satisfied in the light of the evidence that a

a finding that even in the method of work laid down by the foreman:

"there was certainly a full lifting and twisting

movement involved in the last stage of the

operation, where the fourth and fifth levels had

been reached on the left hand pallet".

His Honour accepted the evidence of a consultant physician, Dr Deller, that from a medical point of view the combination of lifting and twisting was dangerous in that it contained an inherent risk of disc lesion where weights being lifted were in the vicinity of sixty pounds. It followed, so his Honour found, that there was an inherent risk of disc lesion in the performance of the work regardless of whether the work was being done in the manner described by the respondent or in accordance with the method laid down by the foreman, although there was greater risk of injury involved in the respondent's method.

7. Counsel for the appellant submitted that there was no evidence to support the finding that either method of work involved twisting. The evidence is certainly sketchy. The respondent's case being that he was denied the use of the hoist, neither counsel at the trial paid much attention to the precise circumstances in which the respondent suffered the injury. All that the respondent said about the moment of injury was that "when I lift it ... I feel a pain in my neck and collapsed". The history that was given by Dr Deller was more informative:

"On 5 December he lifted a pipe from a machine to a

pallet etc. ... in a twisting turning situation and

felt a sudden 'crack' in his neck".

Of course, that history is not evidence. The foreman does not mention expressly any twisting being involved. He gave a demonstration in the course of his evidence and this would undoubtedly have assisted the trial judge to an appreciation of what was involved. Even on the verbal account, it is not difficult to infer a lifting and twisting movement as the worker, standing in front of the drilling machine, has to manhandle the pipes first from a pallet on his right into the machine and then from the machine to the pallet on his left. Indeed the conclusion is irresistible unless it be assumed that the worker moves to his right or to his left, as the case may be, so that his whole body faces a pallet every time he removes a pipe from it or stacks a drilled pipe on it. It is true that in the Court of Appeal Samuels J.A. expressed the opinion that there was no evidence to support the finding but his view was not shared by the members of the Court who formed the majority. In our view, having regard to the matters we have mentioned, the trial judge was entitled to make the finding and no sufficient reason has been advanced to lead us to depart from it.

8. The finding that lifting and twisting was involved in the system of work was of course the critical finding in the case, for it necessarily followed upon the medical evidence accepted by the trial judge, that the risk of injury was foreseeable. The question that remained was whether the appellant took reasonable care to minimise that risk. Counsel for the appellant argued for an affirmative answer to that question. He stressed the slightness of the degree of risk, the testimony of the foreman that in the nineteen years he had been with the appellant he had never had a lifting injury from the type of work upon which the respondent was engaged at the time of his injury (whatever that may mean), and the availability of the hoist should a worker desire to use it. The difficulty that lies in his way is that the hoist was so readily available and that its use would have eliminated the risk entirely. Nor would the compulsory use of the hoist have been impracticable. The evidence was that its use would have added about fifteen seconds to the time required to drill each pipe. Although production would have been slowed somewhat, the foreman made it plain that the only reason why the hoist was not used exclusively was because he considered the risk to be so slight as to render its use unnecessary. The cogency of these competing considerations led Priestley J.A. to recognize that the question of the appellant's liability was very evenly poised, but nevertheless we think the balance falls in favour of the respondent.

9. It is convenient now to take up the appellant's attack on certain expressions used by Priestley J.A. and by McHugh J.A. in the Court of Appeal. Priestley J.A., having identified as the critical and difficult issue the question whether reasonable care required the appellant to direct that the hoist always be used in lifting the pipes, turned to the following passage from the judgment of Mason J. in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 47-48:

"The perception of the reasonable man's

response (to the risk of injury) calls for a

consideration of the magnitude of the risk and the

degree of the probability of its occurrence, along

with the expense, difficulty and inconvenience of

taking alleviating action and any other conflicting

responsibilities which the defendant may have. It

is only when these matters are balanced out that

the tribunal of fact can confidently assert what

is the standard of response to be ascribed to

the reasonable man placed in the defendant's

position".

His Honour then referred to three recent decisions of this Court; McLean's Roylen Cruises Pty. Ltd. v. McEwan [1984] HCA 43; (1984) 58 ALJR 423, at p 425; [1984] HCA 43; 54 ALR 3, at pp 6-7; Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, at p 693; McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, at pp 312-313 and continued:

"In the latter two of these cases there is

instruction, as it seems to me, over and above the

mere repetition of the conventional formulas (sic).

There is what appears to be a deliberate emphasis

on the heavy obligation upon an employer in

fulfilling his duty to take reasonable care to

avoid exposing his employee to an unnecessary risk

of injury".

The passages in the judgment of McHugh J.A. to which counsel for the appellant takes exception are the following:

"The common law requires no more of an

employer than that he take reasonable care for the

safety of his employee. Reasonable care, however,

varies with the circumstances of the case. It

varies with the advent of new methods and machines

and it varies in accordance with changing ideas of

justice and increasing concern with safety in the

community.

I think that it is impossible to read recent

decisions of the High Court of Australia without

realising that employers are now required to comply

with safety standards which, only twenty years ago,

would have been seen as imposing an onerous even an

absurd burden on employers. Cf. Turner v. State of

South Australia (1982) 56 ALJR 839 with Skinner

v. Barac (1961) 35 ALJR 124 and Commissioner

for Railways v. O'Brien [1958] HCA 20; (1958) 100 CLR 211.

Throughout the common law of negligence, but

particularly in the employer/employee field, the

standard of care required of a defendant has moved

close to the border of strict liability".

10. Counsel for the appellant argues that these passages show that their Honours have postulated a higher duty of care resting on employers than the traditional test of reasonable care. We do not think that, properly understood, the passages bear out such a claim. Indeed, each of their Honours commence their discussion with an endorsement of the conventional formula. The reference by McHugh J.A. to strict liability is unfortunate because of its tendency to mislead but there can be no doubt that his Honour was not intending to break new ground in the law of employer's liability. Indeed, he says explicitly that the common law requires no more than that an employer take reasonable care for the safety of his employee. Again, the reference by Priestley J.A. to what his Honour perceives in recent decisions of this Court as "a deliberate emphasis on the heavy obligation upon an employer in fulfilling his duty to take reasonable care" must be evaluated in the context of the particular circumstances and issues which were involved in each of the cases to which he referred. This is not the place for an examination of the reasoning in earlier decisions of this Court. What must be asserted is that the law has not changed. It is as accurate today as it was thirty years ago to say that the duty:

"is that of a reasonably prudent employer and it is

a duty to take reasonable care to avoid exposing

the employees to unnecessary risks of injury":

Hamilton v. Nuroof (W.A.) Pty. Ltd. (1956) 96

CLR 18, per Dixon C.J. and Kitto J. at p 25.

We digress to remark upon the formulation preferred by Windeyer J., with whom McTiernan, Kitto, Taylor and Owen JJ. agreed, in Vozza v. Tooth & Co. Ltd. [1964] HCA 29; (1964) 112 CLR 316, at p 319, namely:

"For a plaintiff to succeed it must appear, by

direct evidence or by reasonable inference from the

evidence, that the defendant unreasonably failed to

take measures or adopt means, reasonably open to

him in all the circumstances, which would have

protected the plaintiff from the dangers of his task

without unduly impeding its accomplishment".

This passage has been repeated more than once in recent decisions of the Court: Raimondo v. South Australia (1979) 23 ALR 513, at p 518; McLean's Roylen Cruises Pty. Ltd. at p 425 of ALJR; p 7 of ALR It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, "without unduly impeding its accomplishment", as furnishing an additional qualification to an employer's liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.

11. Furthermore, it has long been recognized that what is a reasonable standard of care for an employee's safety is "not a low one": O'Connor v. Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p 230. Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances. The Court had occasion to make this point recently in Waugh v. Kippen, unreported, delivered 20 March 1986 (p.4 of the print) in distinguishing from the case in hand the decisions in Turner v. The State of South Australia (1982) 56 ALJR 839; 42 ALR 669 and Castro v. Transfield (Qld) Pty. Ltd. (1983) 57 ALJR 619; 47 ALR 715.

12. On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. Insofar as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v. Tedman at p 313:

"Accident prevention is unquestionably one of the

modern responsibilities of an employer".

However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v. The Broken Hill Pty. Co. Ltd. [1957] HCA 34; (1957) 97 CLR 337, at pp 342-343; Da Costa v. Cockburn Salvage & Trading Pty. Ltd. [1970] HCA 43; (1970) 124 CLR 192, at p 218.

13. Counsel for the appellant also submitted that the Court of Appeal erred in failing to give any weight to the evidence that the appellant's premises had an accident-free history of some nineteen years so far as lifting injuries of the kind in question were concerned. As we have noted, the evidence consists of one answer by the foreman to an ambiguous question. It may have been this that led the trial judge to make the observation that the matter of the accident-free history had been "aired" but that all he could say was that no evidence had been led of any similar accidents in the past. In any event, the weight that will attach to an accident-free history involves a question of fact to be determined in the light of all the relevant circumstances. Being a question of fact, it is a matter upon which minds may differ, as they appear to have differed in the Court of Appeal in the present case, with Samuels J.A. placing greater importance on the fact than did those Justices who formed the majority. But it is not right for counsel for the appellant to say that the question was ignored by Priestley J.A. and McHugh J.A. Each of their Honours specifically referred to it and obviously gave it such weight as they each thought it deserved.

14. On no view could the present case be said to break new ground. The task was a heavy one, involving the machine drilling of cast iron pipes at the rate of about forty pipes each hour in a repetitive process requiring constant care and attention on the part of the respondent. In prescribing a method which obliged him to manhandle each pipe in a manner which involved him at times in a lifting and twisting movement there was plainly a foreseeable risk of injury. It may be that the risk was only a slight one but it was certainly more than fanciful or far-fetched. The fact that finally establishes the liability of the appellant is the ready availability of the hoist, providing an alternative means of handling the pipes which would have eliminated any risk whatsoever. There was no undue expense or difficulty occasioned to the appellant in prescribing its use. Once it is accepted that such use would eliminate the risk of injury, it necessarily follows that a prudent employer exercising reasonable care would require that it be used, at least for those parts of the process where otherwise it would be necessary to engage in a full lift of a pipe.

15. A further ground of appeal was directed to the refusal of the Court of Appeal to disturb the trial judge's assessment of 10% contributory negligence against the respondent. Counsel for the appellant submitted that the assessment of only 10% was ludicrous and reflected the tendency of the courts to match its increasing severity towards employers with increasing leniency towards workers. If there is such a tendency then in our opinion counsel has chosen a singularly inappropriate case by which to demonstrate it. The law is that the damages recoverable by the respondent by reason of the fault of the appellant "shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage": Law Reform (Miscellaneous Provisions) Act 1965 (N.S.W.), s. 10(1). A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage. See Podrebersek v. Australian Iron & Steel Pty. Ltd. [1985] HCA 34; (1985) 59 ALJR 492, at pp 493-494; [1985] HCA 34; 59 ALR 529, at p 532. In Podrebersek, at p.494 of A.L.J.R.; pp.532-533, of A.L.R., the Court said:

"The making of an apportionment as between a

plaintiff and a defendant of their respective

shares in the responsibility for the damage

involves a comparison both of culpability, i.e. of

the degree of departure from the standard of care

of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956)

96 CLR 10 at 16) and of the relative importance

of the acts of the parties in causing the damage:

Stapley v. Gypsum Mines Ltd. [1953] UKHL 4; (1953) AC 663 at

682; Smith v. McIntyre (1958) Tas SR 36 at 42-29

and Broadhurst v. Millman [1976] VicRp 15; (1976) VR 208 at 219,

and cases there cited. It is the whole conduct of

each negligent party in relation to the

circumstances of the accident which must be

subjected to comparative examination".

Applying these principles to the present case, the assessment of only 10% contributory negligence against the respondent is perfectly explicable. It represents the trial judge's assessment of his share of responsibility for the damage and is not inappropriate if regard is had to his failure to use the hoist when he had been told that he could use it if he wished to do so. It might well be inappropriate if counsel for the appellant had been able to make good his claim that the evidence showed that the respondent had been defiantly careless of his own safety. But that would have required him at the very least to show that the respondent suffered his injury because he was deliberately disobeying the foreman's instructions as to the method of handling the pipes that he should adopt. The evidence does not show that. In relation to the stacking of a pipe after it had been drilled on to the left hand pallet, when the stack of pipes on that pallet had reached the fourth and fifth levels there was no difference between the foreman's method and the respondent's method. Both methods required the respondent to lift the whole weight of the pipe, and possibly to carry it some distance around the pallet so as to stack it on the far side. Although the evidence was silent as to whether he was engaged in that part of the process when he suffered his injury the probabilities would seem to point that way. The point is that the appellant cannot attribute the damage to the disobedience of the respondent.

BRENNAN AND DEANE JJ.: The respondent employee sustained injury while working as a machinist operating drilling machines in the appellant employer's foundry in the Sydney suburb of Regents Park. His work at the time involved drilling holes in the flange of pieces of piping fabricated to constitute the basic structure of fire hydrants. The pieces of piping to be drilled were brought to the respondent stacked upon pallets. The full pallet was placed at the right of the respondent as he stood facing the drilling machine. Each piece of piping was manually moved by the respondent onto the jig die of the machine and, after drilling, manually removed from the machine and stacked by the respondent on a different pallet which had been placed for that purpose on his left. The individual pieces, which were stacked up to five levels high on the pallets, weighed approximately 60lbs. The extent of lifting which was involved in the overall process is illustrated by the fact that, during the period of approximately three hours before he sustained his injury, the respondent had moved, drilled, removed and stacked about 115 pieces. While the evidence in that regard is unsatisfactory and we are conscious of the force of the views expressed by Samuels J.A. in his dissenting judgment in the Court of Appeal, it appears to us that the process of lifting the pieces of piping from the machine and stacking them on the pallet on his left would inevitably have involved a degree of combined lifting and twisting particularly, as the learned trial judge (Carruthers J.) found, when the pieces of piping on the pallet had reached the fourth and fifth layers. It was in the process of lifting a piece of the piping that the respondent sustained injury in the form of a cervical intervertebral disc lesion.

2. The essential basis of the learned trial judge's finding that the appellant had been guilty of a breach of the duty of care which it owed to the respondent as its employee appears from the following extract from his judgment:

"Dr. Deller said: 'I think as a general rule

that if you can relieve the physical stress of any

industrial activity and transfer it to a machine

the better. Certainly, this would be a case where

it would be better to have had it done

mechanically.' He was asked 'And I take it by

'better' you mean safer? A. Yes, and less wear

and tear and effort.'

I am satisfied in the light of the evidence

that a safe system of work required a direction

that the hoist was to be used as the exclusive

method for performing the subject work. It also

called for the taking of reasonable steps to

enforce the direction."

3. Dr. Deller, who was described by his Honour as "a consultant physician, and a highly qualified member of the medical profession", was a witness called on behalf of the appellant employer. His Honour's citation of part of his evidence correctly represents the overall effect of his evidence as a whole. The "hoist" to which his Honour referred was a mechanical hoist which was available in the foundry and which could have been used to avoid the risk to the respondent involved in the constant lifting and stacking of the pieces of piping. The use of that mechanical hoist would have slowed down the respondent's rate of work to some extent but it is not suggested that it would have precluded the efficient performance of that work. It is common ground that the appellant employer neither instructed the respondent, nor laid down any system of work which required him, to use the mechanical hoist for the purpose of lifting and stacking the pipes.

4. In these circumstances, there is no proper basis for interfering with the concurrent finding of the learned trial judge and the majority of the Court of Appeal that the appellant employer was guilty of breach of its duty of care to the respondent. To the contrary, it appears to us that that finding was securely founded on the evidence. Nor is there any proper basis for interfering with the learned trial judge's finding, again confirmed by the majority of the Court of Appeal, that there existed the necessary causal connection between the injury sustained by the respondent and the appellant's breach of the duty of care which it owed him. The respondent does not now attack the learned trial judge's finding of contributory negligence. On the basis that that finding of contributory negligence was correct, we are not persuaded that his Honour was in error in failing to apportion more than 10% of liability to the respondent. Indeed, the evidence in relation to the contributory negligence of the respondent does no more than establish that he disregarded a system of work which the appellant took inadequate steps to enforce. Further, the appellant was, through its foreman, aware that the respondent was not observing that system of work. In addition, the system was, in any event, inadequate in that, as the learned trial judge found, it would not have avoided any lifting and twisting involved in manually removing the pieces of piping from the machine and stacking them on the pallet.

5. It should be mentioned that senior counsel for the appellant employer focused attention, in the course of his argument, upon particular statements in the judgments of Priestley and McHugh JJ.A. who constituted the majority of the Court of Appeal. The relevant statement in the judgment of Priestley J.A. was to the effect that there was to be discerned in some recent decisions of this court "deliberate emphasis on the heavy obligation upon an employer in fulfilling his duty" of care to an employee. The relevant statement in the judgment of McHugh J.A. was that "particularly in the employer/employee field, the standard of care required of a defendant has moved close to the border of strict liability".

6. If these statements, made by their Honours in the course of ex tempore judgments, were intended to lay down principles to be applied by judges at first instance, they would be open to some criticism in that it would be wrong for a trial judge to approach an action in negligence by an employee against an employer on the basis of some perceived principle that "the heavy obligation upon an employer" was to be emphasized or that the standard of care required of an employer "has moved close to the border of strict liability". Contemporary decisions about what constitutes reasonable care on the part of an employer towards an employee in the running of a modern factory are in sharp conflict with what would have been considered reasonable care in a nineteenth century workshop and, for that matter, reflect more demanding standards than those of twenty or thirty years ago. While it is true that that has, in part, been the consequence of the elucidation and development of legal principle, it has, to a greater extent, reflected the impact, upon decisions of fact, of increased appreciation of the likely causes of injury to the human body, of the more general availability of the means and methods of avoiding such injury and of the contemporary tendency to reject the discounting of any real risk of injury to an employee in the assessment of what is reasonable in the pursuit by an employer of pecuniary profit.

7. For our part, however, we do not read the relevant statements of Priestley and McHugh JJ.A. in the Court of Appeal as intended to lay down any principle to be applied by trial judges. In our view, those statements are more properly to be seen as no more than ex tempore comments about the overall tendency of some more recent judicial decisions. As such, we consider it unnecessary that we express any view in relation to them beyond saying that they do not seem to us to call for the surprise or indignation which senior counsel for the present appellant expressed on behalf of those whom he described as his "true client".