Bauer Media Pty Ltd v Khedrlarian

Court of Appeal (NSW)|2020-05-18

Solicitors: McCabe Curwood (Appellant/Second Cross-Respondent) Sanford Legal (First Respondent/First Cross-Respondent) HWL Ebsworth (Second Respondent/First Cross-Appellant) File Number(s): 2019/325559 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil - General List Citation: Not available Date of Decision: 4 October 2019 Before: Curtis ADCJ File Number(s): 2016/251959

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

HEADNOTE [This headnote is not to be read as part of the judgment] A woman (the Worker) was employed by a labour hire company, Demand Personnel Pty Ltd (Demand), and performed work at the premises of Bauer Media Pty Ltd (Bauer). The Worker experienced a number of medical conditions affecting her neck, shoulders and wrists which she alleged were the result of a failure by Bauer and Demand to provide her with a safe system of work at Bauer's premises. Bauer is a magazine publisher and distributer. Printed editions of magazine titles would be delivered to the premises where the particular orders of individual newsagencies would be compiled and bundled before being distributed. The Worker's role primarily involved selecting the number of magazine titles required for each order and placing them on a conveyor belt. There were a number of other tasks that were available such as labelling the bundles. In the District Court, the only material particular of negligence was identified in a particular of breach of duty as a failure to ensure a proper system of task rotation took place to reduce or eliminate the risk of injury. An Acting Judge of the District Court found in favour of the Worker against Bauer and Demand. Bauer and the Workers Compensation Nominal Insurer, who had substituted Demand, appealed. The primary complaint was that the primary judge erred by determining that Bauer and Demand breached their duty. With respect to breach, the primary judge found that the risk of musculoskeletal injury arising out of the work at Bauer's premises was foreseeable and was actually foreseen by Bauer and Demand. His Honour relied heavily upon an expert report (the Report), admitted over objections, which characterised the hazard to the Worker as "high risk" and included a recommended precaution of "job rotation". His Honour considered that it was "probable" that the Worker would suffer injury if her tasks were not rotated. The primary judge found a reasonable employer would not have required the Worker to participate in "the system of work described in evidence" and considered that there was no evidence that job rotation would have been an unreasonable burden. The principal issue before the Court was: (i) Whether the primary judge erred by concluding that there had been a breach of the relevant duty of care. The Court (Basten and Meagher JJA at [32]-[33] and Emmett AJA at [96]) allowing the appeal, held:

It was necessary for the Worker to identify a particular regime of "job rotation" that, if followed, may have obviated or minimised the risk of injury: [26]-[27], [64]-[65].
The primary judge erred as his conclusion that a breach arose in respect of inadequate "job rotation" fatally lacked the requisite specificity as to what "job rotation" entailed: [24]-[30], [86]-[87].
There was no evidence that any reasonable precaution, including a compulsory system of rotation between tasks, would have prevented an injury: [24], [31], [89]-[92]. The primary judge's finding that "job rotation" imposed no burden was not explored in evidence and was not properly available: [29], [88].
The Report was, to a significant extent, based upon false assumptions and failed to elaborate upon what precautions should have been taken by Bauer and Demand with respect to "job rotation": [8]-[18], [31], [82]-[83].
The primary judge erred by admitting the Report into evidence: [18], [42].

Judgment

BASTEN and MEAGHER JJA: We agree with Emmett AJA that the appeal in this matter should be allowed and the judgment in the District Court set aside. Having regard to the comprehensive reasons given by Emmett AJA for reaching that conclusion, our reasons can be expressed succinctly.
Ms Khedrlarian (the plaintiff) was employed by a labour hire company known as Demand Personnel Pty Ltd (the employer). She worked at the premises of the appellant, Bauer Media Pty Ltd, filling orders for magazines to be dispatched to newsagents between 4 October 2009 and 27 February 2011. She suffered an injury on her last day at work, being Sunday, 27 February 2011.

Risk of harm

The appellant raised a number of grounds dealing with the manner in which the trial judge had disposed of the claim in the District Court. However, as Emmett AJA explains, the matter can be dealt with on the basis that the only material particular of negligence, arising from a failure to provide a safe system of work, was identified in a particular of breach of duty in the following terms: "i. Failing to ensure a proper system of task rotation took place to reduce or eliminate the risk of injury." This in turn required establishment of two matters, namely (i) what was proposed by way of "a proper system of task rotation" and (ii) how would such a system reduce or eliminate the risk of injury to workers.
The first step in assessing the evidence with respect to breach was to identify the risk of harm faced by the plaintiff. The difficulties faced by the plaintiff in this regard were significant. First, it was by no means clear how her injury occurred. She was the only one to give evidence as to that matter. The first report she made, according to the evidence, was a telephone contact with Demand's manager, Ms Usher, that she had hurt herself at home over the weekend of 27/28 February and would not be able to work her next shift on the Monday. She did not see a medical practitioner with respect to the injury until some four and a half months later in mid-July. She did not report the injury to any person at the appellant's workplace. Her workers' compensation claim was also lodged in July 2011.
In her evidence, the plaintiff described the incident on 27 February as involving a sharp ("electric") pain in the right side of her neck where it joined her shoulder. That had occurred when she had reached across a conveyor belt at a height of 700mm to reach magazines which were on a shelf at a height of one metre. There was no evidence as to the weight of the magazines she had taken hold of, but the parcels which were being put together with copies of various magazines were not intended to exceed 12kg.
The plaintiff asserted that she had experienced a "tingling feeling" in her right hand when using a hook knife about two months prior to 27 February 2011. She had made no complaint about this and had continued working.
In discussing "foreseeability" for the purposes of s 5B(1)(a) of the Civil Liability Act 2002 (NSW), the judge appeared to identify the risk of harm as "[t]he possibility that workers may suffer musculoskeletal injury as a result of this work". [1] Later in the same passage he concluded that the foreseeable risk was that the plaintiff "may suffer soft tissue injuries to her neck, and both shoulders and wrists as a result of the work". [2] These were the injuries the judge found the plaintiff did suffer. However, without knowing how the plaintiff suffered the injuries, the appellant submitted it was not possible to identify the precautions which the appellant and her employer should have taken. For example, was the injury the result of repetitive processes, or lifting a sudden unexpected weight? If the former, was the onset without warning?

Admission of safety expert's report

It is convenient to note first the challenge by the appellant to the admission of the evidence of Mr Cockbain. The judge heard submissions in respect of the admissibility of his report and ruled upon in a brief judgment given on 14 August 2019. Although the judge set out the argument by the appellant (the first defendant in the trial) and then considered those arguments under the heading "Consideration", in fact several of the arguments were addressed in the course of setting them out.
The judge commenced by identifying Mr Cockbain's expertise which he concluded qualified him to express an opinion in relation to "whether the plaintiff's work created a risk of injury and what practical measures were available to obviate that risk." [3] He continued: "5 Mr Polin SC for the first defendant nevertheless submits that tender of the report is futile (a) because the assumptions upon which [Mr Cockbain] proceeds are not borne out by the evidence, (b) because he does not reveal his reasoning process before prescribing the steps that the defendants should have taken to prevent injury and (c) because he fails to identify those steps with sufficient precision to inform the further inquiry into causation."
The judge rejected the first objection on the basis that there was particular evidence from Ms Susan Margaret McKay, who had spent some years working in the appellant's premises and was familiar with the workplace environment. The judge noted that her evidence was that "workers were at times required to work day after day upon repetitive manual tasks without rotation or relief."
With respect, that proposition did not engage with the reasoning of the objection.
The objection to the assumptions was that the plaintiff's evidence asserted that she had experienced a "tingling feeling" in her right hand when using a hook knife about two months prior to February 2011. She had made no complaint about this and continued working. She had been given instruction as to how to use the hook knife. Mr Cockbain had expressed no opinion as to whether the manner of the use of the hook knife was inappropriate.
The appellant's supervisor said that on no occasion would she be required to put together a package weighing more than 11.5kg and generally a weight to be pulled down onto the conveyor belt would be no more than 1-2kg. Mr Cockbain had referred to a lift of 30kg in one paragraph, to "significant bending and lifting", lifting of books from pallets at ground level to above head height. There was no evidence that any of those activities were required of the plaintiff.
Further, the history of injury relied upon by Mr Cockbain, it had been submitted, was of a gradual onset of symptoms over many months whilst undertaking a wide range of manual tasks. That was not the evidence given by the plaintiff, nor was it the harm accepted by the trial judge. The rejection of the first objection was flawed. It was a serious objection which, at the very least, gave limited weight to the opinions of Mr Cockbain.
The judge rejected the second objection as "in the event, irrelevant." [4] It may be that this arose from the fact that the third objection was treated as significant. The judge described it as "more subtle" and as engaging with "the unfortunate practice of many experts who recite platitudes as evidence of failings by defendants." He also noted that the particulars of negligence pleaded ended without informing the defendant of "the precise action required to prevent the plaintiff's injuries." The judge aptly quoted Isaacs ACJ in The Metropolitan Gas Company v City of Melbourne Corporation [5] for the proposition that "[n]o conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done." The judge noted the complaint that the particulars failed to identify what was a proper system of task rotation, a problem which was not resolved by Mr Cockbain's report. [6]
These findings would have warranted rejection of the report. However, the judge then changed course under the heading "Consideration", stating: "[19] Mr Polin's analysis is appropriate in cases of nonfeasance. It is not appropriate in cases of malfeasance. The question at hand is not what the defendants failed to do, but what they did do. [20] The substance of the plaintiff's complaint is that the defendant unreasonably and wrongly exposed her to the risk of injury by requiring her to continuously perform repetitive work and that this risk came home. The plaintiff complains not that the employer failed to take steps to protect her from an extraneous risk, but that the employer created the risk."
It is tolerably clear that the reference to "malfeasance" was intended to be a reference to "misfeasance", although it was repeated in the principal judgment. The distinction is apparently similar to one which used to be applied under the general law in cases of highway authorities, which enjoyed an immunity from liability for what was described as "nonfeasance". [7] The distinction has, as the appellant submitted, never had a role to play in relation to workplace injuries and is not consistent with the application of the Civil Liability Act. Further, while it is true that the appellant created the workplace environment, there was no allegation that the physical structures were negligently designed or operated. The question was simply what precautions should have been taken, if any, to prevent an injury which may have resulted from repetitive work. The criticism of Mr Cockbain's report, accepted by the trial judge, that it failed to identify with precision the nature of the precautions which should have been taken, was entirely apt. It should have resulted in the rejection of the report, not because Mr Cockbain was not competent to say what he said, but because what he said failed to provide material support for the only particular of negligence which was ultimately relied upon.
For these reasons, ground 1(d)(i), challenging the admissibility of the report, should be upheld. However, the appeal should ultimately be upheld on the broader basis that the substantive issue which Mr Cockbain failed to address, namely the precise precaution which should have been taken, remained unresolved, even if the report were properly admitted.

Failure to demonstrate breach of duty

The workplace operated as a magazine distribution centre, the primary function of which was to put together orders from newsagents or other distributors of specific numbers of a variety of magazines and sometimes books. There was an incidental function involving the folding of promotional material, but there was little of this work; the plaintiff in fact engaged in this work from time to time.
There was also a manual packing table where parcels of magazines were provided on pallets which were wheeled into place on spring-loaded trolleys, so that as the parcels at the top level were removed to the packing table, the level of the remaining parcels would be raised. It was not suggested that the packing table work was lighter than the conveyor belt work, nor that it supplied a form of rotation which would relieve a worker on the conveyor belt from repetitive or demanding work. Again, the plaintiff in fact engaged in this work from time to time.
The bulk of the work undertaken by the plaintiff was on the conveyor belt, pursuant to a system described by Mr Martin and Ms McKay in their evidence, and summarised by the trial judge in the following terms. "[5] Three or four workers faced the conveyor belt, each occupying a different station with bundles of different titles stacked before them on a shelf. The most popular magazines were placed on the shelf directly in front of the worker, the less popular to the right and left. [6] The conveyor belt was 700 mm high and the shelf 1 metre high. A higher shelf of 1.5 m was rarely used. [7] The conveyor stopped periodically and a screen in front of the worker informed them of the title and the number of each magazine to be taken from the shelf and placed on the conveyor in satisfaction of the order. [8] The worker then lifted and placed from 1½ to 2½ kg of magazines onto the conveyor before pushing a button that permitted the conveyor to move on to the next order. The conveyor would not move until each worker had pressed the button. Although the pace of the work was governed by the slowest worker they were encouraged to work quickly. [9] The workers were invited to rotate to a different station every two hours. Some staff didn't wish to move and stayed in the same station. The rotation didn't change the weights that the workers were picking or the nature of the repetitive movements. Mr Ryan Martin, the production planner employed by [the appellant] gave this evidence: Question. So the pickers all picked up around about 2 ½ kg, sometimes with magazines it would be more numbers and sometimes with the heavier things less numbers? Answer. Yes Question. So the rotation didn't change the weights they were picking? Answer. Not really. It just - it just changed their actions maybe. [10] An exception to this regime was the station at the end of the line where, the order completed, a label was affixed automatically. The worker at this station was required to look carefully at the label to confirm that it was accurate. Mrs Mackay, who worked with the plaintiff[,] said that because the work required concentration; [']to be honest no one wanted to be on the label machine so I was usually on it'."
The evidence of Mr Martin, set out by the trial judge above, was inconsistent with the proposition that rotation on the conveyor belt would have had any significant ameliorating effect on the risk of harm caused by repetitive actions.
Further, Mr Martin said in cross-examination that there had been a continuity of the process on the conveyor line since 2005. There was no change after February 2011.
There was no evidence for the view that being rotated occasionally to the manual handling table would have any significant effect; nor that available rotation to the folding promotional material could have assisted the situation. Absent evidence that rotation to different places on the conveyor line (i) did not take place and (ii) if required, would have obviated the risk of harm, the claim was bound to fail.
As to the first matter, the judge did not find that no rotations were permitted, nor that rotations did not happen in practice. Ms Usher, whose evidence the judge accepted when in conflict with that of the plaintiff, stated that she observed rotations. [8] This evidence was not challenged in cross-examination. The issue was, therefore, what precise degree and manner of rotations was required to obviate the risk?
The critical passage in the judge's reasons with respect to the taking of precautions was as follows: "[28] The plaintiff, so it is said, must propose a particular regime of job rotation that, if followed, may have obviated or minimised the risk of injury. This is necessary in order that the further question of causation might be addressed by medical evidence. [29] I am not persuaded by this argument. It is inappropriate in considering cases of malfeasance [sic] rather than nonfeasance. The question at hand is not what the defendants failed to do, but what they did do. [30] The substance of the plaintiff's complaint is that the defendants unreasonably and wrongly exposed her to the risk of injury by requiring that she continuously perform repetitive work without rotation and that this risk came home. The plaintiff complains not that the employer failed to take steps to prevent [protect?] her from an extraneous risk, but that the employer created the risk. [31] A reasonable employer would have taken the precaution of not requiring the plaintiff to participate in the system of work prescribed in evidence."
This reasoning cannot be accepted. First, the submission set out at [28] should have been accepted. Secondly, the reason for not accepting the argument again relied upon what was described as "malfeasance" rather than nonfeasance. The distinction was not relevant in the circumstances of the case. Thirdly, the "precaution" relied on at [31] was not a precaution that a reasonable person would have taken.
With respect to the employer, the judge further concluded: "[37] The obvious precaution available to Demand Personnel was to refuse to supply the services of the plaintiff to the defendant until Job Rotation was introduced. That imposed no burden."
Capitalising the term "Job Rotation" did not identify with any greater precision what it required. The proposition that the employer should refuse to place any person with the appellant in that part of its packing process would clearly have destroyed part of the employer's operation. The suggestion was not put to Ms Usher by counsel for the employer, nor by counsel for the appellant. The finding to that it "imposed no burden" could not be made unless the ramifications had been explored with the employer's manager, Ms Usher. It is by no means self-evident that there would have been no ramifications for the business of Demand Personnel, which placed some 55 workers with the appellant.
The trial judge also appeared to place significant weight on a standard form "safety checklist" prepared by Demand Personnel and dated 3 February 2011. It contained 66 questions which were treated as relevant. Under the heading "Manual handlings" there were 13 questions including, "Is rotation of tasks used to avoid repetitive work?", to which a box alongside the word "Yes" was ticked. The checklist also confirmed that work was planned to reduce periods of high and low demand and that there were sufficient rest breaks. On the basis of this material, the judge inferred not only that the risk of injury from repetitive work was foreseeable, but that it had actually been foreseen by the employer. [9] It had, and as noted above, rotations had been observed by the employer's representatives who were regularly on site.
There was, however, no evidence capable of supporting an affirmative finding that any reasonable precaution would have averted the risk. It may be added that although the judge accepted, on the basis of Mr Cockbain's evidence that the risk was "high", [10] this opinion was worthless because of the discrepancies between the information relating to the work situation of the plaintiff upon which Mr Cockbain based his opinion, and the actual workplace requirements described in evidence by Mr Martin and Ms McKay, whose evidence the judge accepted. Further, Mr Cockbain's opinion failed to take into account that (i) the system of work had been in place for some six years before the plaintiff was injured and continued thereafter; (ii) neither the plaintiff nor any other worker had complained to the appellant or Demand Personnel about the work conditions at any time prior to (or after) the plaintiff's injury, and (iii) the injury to the plaintiff appears to be the only known incident of the "high" risk materialising. The finding that the risk was "high" in the sense of likely to materialise, was not available on the evidence.

Conclusions

In the absence of evidence as to a precaution which should have been taken by a reasonable designer of the system of work at the appellant's premises, being a precaution which was shown to obviate or, in practical terms reduce the risk of injury to an acceptable level, a finding of breach of duty was not open. It follows that the plaintiff's claim, as against the appellant and her employer, should have been dismissed. The appeal must be allowed.
The Court should make the following orders: 1. Allow the appeal by Bauer Media and set aside the orders 2, 4, 6, 9 and 11 made in the District Court on 4 October 2019. 2. In lieu thereof, 1. dismiss, as against the first defendant, the plaintiff's amended statement of claim filed on 17 March 2017; 2. order that the plaintiff pay the costs of the first defendant in the District Court. 1. Order that the first respondent, Mary Khedrlarian, pay the costs of the appellant of its appeal in this Court. 2. Grant the Workers Compensation Nominal Insurer an extension of time and leave to file an appeal in the form of the notice of cross-appeal filed on 16 April 2020. 3. Allow the Workers Compensation Nominal Insurer's appeal and set aside orders 3, 5, 7, 10 and 11 made in the District Court on 4 October 2019. 4. In lieu thereof, 1. dismiss, as against the second defendant, the plaintiff's amended statement of claim filed on 17 March 2017; 2. order that the plaintiff pay the costs of the second defendant in the District Court. 1. Order that the first respondent, Mary Khedrlarian, pay the costs of the appeal brought by the Workers Compensation Nominal Insurer in this Court.
EMMETT AJA:

Introduction The question in these proceedings is whether the appellant, Bauer Media Pty Ltd (Bauer), which carried on business as "Network Services Company", or Demand Personnel Pty Ltd, a labour hire company, or both of them, breached a duty of care owed to Ms Mary Khedrlarian (the Worker). The Worker suffers from permanent aggravation of a degenerative disease in her neck, permanent aggravation of rotator cuff pathology in each shoulder, De Quervain's tenosynovitis in her right wrist and carpal tunnel syndrome in her left wrist. She claimed that those conditions were the result of the failure of both Bauer and Demand to provide her with a safe system of work in Bauer's magazine distribution centre at Moorebank, New South Wales (the Premises).

Bauer's business involves the publishing, collating, packing and transporting of printed material, including magazines. Demand entered into a contract with Bauer, whereby Demand provided to Bauer the services of various of its employees. The Worker was a labour hire worker employed by Demand and was placed, in a labour hire capacity, pursuant to the contract with Bauer, to work at the Premises.
The Worker sued Bauer and Demand in the District Court. By her second amended statement of claim filed on 23 November 2017 (the Statement of Claim), the Worker alleged that:

between 4 October 2009 and 27 February 2011, whilst in the course of her employment with Demand, she was required to lift bundles of magazines repetitively whilst working at the Premises;
in the course of doing so, she developed a pain in her neck and right shoulder;
on 27 February 2011, she bent over a bundle of magazines weighing approximately 15 kg and lifted the bundle when she felt pain in her neck and right shoulder;
as a result of those matters, she suffered injury, loss and damage consisting of injury to the neck, right shoulder, both arms and wrists;
Bauer and Demand owed the Worker a duty to exercise reasonable care to prevent her being exposed to a reasonably foreseeable risk of injury by the systems of work designed, implemented, supervised and operated by them at the Premises;
the risk of injury to the Worker was reasonably foreseeable in the circumstances; and
the injury suffered by the Worker was occasioned by breach of the duty owed to her by Bauer and Demand.

In its defence, Bauer admitted that it owed a duty of care to the Worker to exercise reasonable care to prevent her being exposed to a reasonably foreseeable risk of injury but denied that it breached any duty of care to her. In its defence, Demand denied that it breached any duty of care to the Worker as alleged. Each of Bauer and Demand also alleged in their respective defences that, if the Worker suffered loss and damage as alleged, such injury, loss and damage was caused or contributed to by her own negligence.
Demand filed a cross-claim against Bauer. Demand is now under external administration. However, Demand had entered into a contract of insurance with the cross-appellant, the Workers Compensation Nominal Insurer (the Insurer), and the Insurer was substituted as defendant and cross-claimant pursuant to s 4 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). In addition, Bauer filed a cross-claim against Demand and subsequently the Insurer was substituted as cross-defendant in that cross-claim. Each cross-claimant sought indemnity or contribution from the other pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
On 24 November 2017, for reasons published orally on 20 November 2017, an Acting Judge of the District Court (the First Judge) directed the entry of judgment in favour of the Worker against both Bauer and the Insurer. The First Judge apportioned liability as to two thirds to Bauer and as to one third to Demand. Bauer appealed and the Insurer cross-appealed from the orders made by the First Judge. On 20 September 2018, for reasons published on that day, [11] this Court ordered that Bauer's appeal and the Insurer's cross-appeal be allowed and set aside the orders made by the First Judge. The Court remitted the proceedings to the District Court for retrial and ordered that the costs of the first trial be within the discretion of the court that hears and determines the retrial. This Court ordered the Worker to pay the costs of Bauer and the Insurer of the appeal and cross-appeal.
On 4 October 2019, for reasons published on 29 August 2019, a different Acting Judge of the District Court (the primary judge) directed the entry of judgment for the Worker against Bauer in the sum of $382,744.74 and judgment against the Insurer in the sum of $244,996.04. The primary judge ordered Bauer to pay the Worker's costs of the proceedings including the first trial and also ordered the Insurer to pay the Worker's costs of the proceedings including the first trial, subject to the provisions of s 346 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Div 3 of Pt 17 of the Workers Compensation Regulation 2016 (NSW). The primary judge directed the entry of judgment for Bauer against the Insurer on its cross-claim in the sum of $36,749.41 and directed the entry of judgment in favour of the Insurer on its cross-claim against Bauer in the sum of $208,246.63. His Honour ordered that each of Bauer and the Insurer bear their own costs of the cross-claims. His Honour noted that satisfaction of one judgment would discharge the other pro tanto.

failure to provide a safe system of work;
failing to undertake any or any proper risk assessment regarding the work to be performed by the Worker before instructing the Worker to do so;
failing to instruct competent staff;
failing to provide proper supervision of the Worker's work;
failing to provide any or any proper training of the Worker in the work she was undertaking;
requiring the Worker to perform the work whilst adopting a system designed by it that was inherently unsafe;
failing to provide appropriate plant and/or equipment in order to permit the work to be performed safely;
failing to provide mechanical lifting equipment in order to eliminate the risk of injury to the Worker;
failing to ensure that a proper system of task rotation took place to reduce or eliminate the risk of injury;
breaching s 8 of the Occupational Health and Safety Act 2000 (NSW) and the regulations made under that Act; and
failing to provide a safe workplace in compliance with Australian Standard AS1470-1986 Health and Safety at Work - Principles and Practices.

Over the objection of both Bauer and the Insurer, the primary judge admitted into evidence a report by Mr David Cockbain of SAFEgroup Pty Ltd concerning the systems in place in the Premises and the proper safe work systems that should have been in place during the Worker's employment in the Premises (the Report). His Honour admitted the Report for reasons given in a preliminary ruling during the hearing (the Evidence Ruling). Mr Cockbain said in the Report that he had been asked to respond to the following questions:

Whether, in the circumstances, the system of work was one that exposed the Worker to a foreseeable risk of injury;
if so, were there practical steps that should have been taken to improve the system and thereby minimise or eliminate the risk of injury;
if so, what were those steps and what would be the cost of such steps to be taken;
whether, if an alternative system had been adopted, the risk of injury to the Worker would have been eliminated; and
an outline of the proper safe work systems that there should have been at the time of the Worker's employment in the Premises.

In the Report, Mr Cockbain expressed the opinion that:

there were ten factors on the part of Demand that contributed to the Worker's injury;
there were eight reasonable preventative measures that could and should have been implemented or undertaken by Demand prior to assigning the Worker to work for Bauer;
there were eleven factors on the part of Bauer that contributed to the Worker's injury; and
there were nine reasonable preventative measures that could and should have been implemented by Bauer that would not have involved excessive expense in either their development or implementation. It will be necessary to refer later to the particulars of the factors and preventative measures identified by Mr Cockbain in the Report, since the primary judge placed a great deal of weight on the Report. One of the complaints made by Bauer and the Insurer is that Mr Cockbain's opinion was based on assumptions that were contrary to the evidence or were not the subject of findings made by his Honour.

The Duties of the Worker

Bauer publishes a number of different magazine titles. Newsagents and other distributors place orders with Bauer for a particular number of particular titles of its various magazine titles. After printed editions of the magazines are delivered by printers to the Premises, each order is compiled and bundled for despatch to the newsagent or other distributor. The work of compiling orders is carried out on a production line. The Worker worked on the production line.
The evidence identified four separate but related tasks on the production line that were relevant to the Worker's claims. They were:

Picking and packing on the TWI line;
Picking and packing on the manual bench;
Labelling; and
Replenishing.

The TWI line was a conveyor belt at a height of approximately 700 mm from the ground. About 300 mm above the conveyor was a shelf on which piles of magazines were placed. At the edge of the shelf was an electronic display in relation to each pile of magazines specifying the number of those magazines required for each particular order. There were several stations along the TWI line, at each of which an employee stood. The task of the employee was to take from the shelf the number of magazines of each type required for a particular order and to place them onto the conveyor. Each employee stationed on the TWI line filled separate orders. As each employee completed an order, the employee would press a button.
When all buttons had been pressed, the conveyor belt would move the completed orders, making space for each worker on the TWI line to commence compiling a new order. Clearly enough, the progress of the conveyor depended upon the last of the employees to finish compiling an order. The time taken to compile any particular order would depend upon the numbers of magazines in that particular order. A large order would obviously take longer to compile than a small order.
Employees were invited to rotate to a different station on the TWI line every two hours. However, some employees did not wish to move and stayed at the same station throughout a shift. The weights involved at each station varied according to the orders that were being compiled at the station. Clearly enough, the picking of magazines on the TWI line involved significant repetitive movement.
No bending was involved on the TWI line except to lean across the conveyor to take magazines from the shelf above the conveyor. It was a matter for each employee as to how many copies of a particular magazine would be picked from the shelf and placed on the conveyor to make up a particular order. The magazines placed on the shelf were sometimes bound by straps. Part of the function of the employees on the TWI line was to cut the straps of each new bundle of magazines with a knife. Two kinds of knives were employed, one was a modified Stanley knife, the other was a hook knife. Nothing in particular turns on the difference.
The manual bench involved an activity similar to that on the TWI line, except that instead of picking numbers of magazines from piles on the shelf above the conveyor line, the employee was required to lift and move to a stationary workbench piles of magazines from a pallet nearby. Work on the manual bench thus involved lifting and carrying bundles of magazines. Once the bundle of magazines was on the manual bench, the same task was carried out of cutting straps and selecting numbers of magazines for compilation into a particular order.
It is quite unclear how an employee who worked on the manual bench was informed of the titles and numbers of magazines required for any particular order. Some of the pallets that supplied the manual bench were spring loaded so that the lower bundles automatically rose as the top bundles were removed. If a pallet was not spring loaded, several pallets were employed on top of each other. In neither case was there a need for the employee to bend to the ground, although some bending may be required. No one bundle could weigh more than 13 kg and about half of them were no more than 6 kg. Usually only one bundle was moved at a time although an employee could, if the employee chose to, take one bundle in each hand.
The conveyor belt moved all the compiled bundles to the labeller at the end of the line. The task of the labeller involved looking carefully at the label to confirm that it was accurate for dispatch to the newsagent or other distributor who had placed the order for that bundle. Because the work required concentration, most of the employees preferred not to perform the task of labelling. For the most part that task was carried out by Ms Susan McKay.
Whenever a pile of a particular magazine on the shelf above the conveyor required replenishment, a bundle of copies of that magazine was placed on the shelf by the replenisher, from the other side of the conveyor. As a particular pile of magazines was depleted, further numbers of that magazine would slide down the shelf by gravity. The work of replenishing is heavier work than the other three tasks identified above.
The Worker spent about 80% of her time on the TWI line and about 20% on the manual bench. On very rare occasions, she worked at the labelling bench. While the Worker had previously been engaged in replenishing for some years, no complaint is made by her in relation to the tasks that she performed as a replenisher.
An employee performing the tasks described above worked either a ten-hour shift or an eight-hour shift. A ten-hour shift began at 8 am and employees had a break of 20 minutes during the morning at about 11 or 12 o'clock after four hour's work, a lunchbreak of 30 minutes at 1.30 pm or 2 pm and a further afternoon break of 20 minutes. In an eight-hour shift, there was a morning break and a lunch break with no afternoon break. Ms McKay, who gave evidence on behalf of the Worker, said that the work was not difficult but that the employees had to go fast to get the work done.

Reasons of the Primary Judge

In his reasons, under the heading "[n]egligence", the primary judge began by reciting s 5B of the Civil Liability Act 2002 (NSW), which does not apply to the claim by the Worker against Demand, as her employer. Section 5B relevantly provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and, in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, the Court is required to consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity that creates the risk of harm.
In dealing with the foreseeability of the risk of harm, the primary judge found that the possibility that workers may suffer musculoskeletal injury as a result of the work in question was not only foreseeable but was foreseen by both Bauer and Demand. His Honour referred to safety checklists prepared by Demand on 24 September 2009, 11 March 2010 and 3 February 2011, copies of which appear to have been provided to Bauer. Each of the checklists contained, under the heading "work organisations", the following question: "Is rotation of tasks used to avoid repetitive work?" That question in each checklist was answered "yes".
The primary judge then referred to the Report and observed that, in accordance with what Mr Cockbain was told by the Worker, Mr Cockbain assumed that she worked for days at a time lifting magazines to her workstation at a conveyor belt, cutting the strapping from packets and placing various numbers of individual magazines onto the conveyor in accordance with the instructions on the screen before her. Mr Cockbain assumed that the Worker worked "very quickly".
The Report contained a statement that Mr Cockbain "understands" that the musculoskeletal injuries to the neck and shoulder areas is caused by work activities that involve continuous arm or hand movements that generate loads on the neck and shoulder area, although Mr Cockbain did not, in the Report, profess any particular source of knowledge in relation to that matter. Mr Cockbain also expressed the view in the Report that, whilst injuries are commonly attributed to an event close to the time at which the injury is reported, "the role of cumulative exposures and the action of multiple contributory causes or hazards is becoming evident". It is quite unclear what that means and Mr Cockbain offered no explanation. However, the primary judge observed that Mr Cockbain supported his opinion "by reference to published standards and papers". While his Honour referred to specific papers in the Evidence Ruling, his Honour made no reference to particular standards or papers in his final reasons. Nevertheless, his Honour found that the risk that the Worker might suffer soft tissue injuries to her neck and both shoulders and wrists as a result of the work she was doing was foreseeable.
In the context of considering whether the risk of injury to the Worker was not insignificant, the primary judge observed that, on the basis of what Mr Cockbain was told by the Worker, Mr Cockbain assessed the hazard to which the Worker was exposed as "high risk". His Honour said that that assessment accorded with his Honour's own opinion. However, nothing further was said by his Honour about the categorisation of "high risk".
The primary judge then dealt with the question of whether a reasonable person in the position of Bauer or Demand would have taken precautions. It is significant that his Honour drew no distinction between Bauer and Demand in that regard. His Honour observed that the precautions recommended by Mr Cockbain in the Report "included job rotation" and said that that was the precaution recognised by "the defendants' Safety Checklist". The safety checklist of course was a document prepared by Demand although, as indicated above, it appears to have been made available to Bauer. The circumstances in which it was made available to Bauer, however, were not the subject of any evidence.
The primary judge then referred to the argument advanced on behalf of "the defendants" that identifying the precaution in general as "job rotation" did not assist the Worker, a contention that relied on the proposition that no conclusion of negligence can be arrived at until, first, the mind conceives affirmatively what should have been done. [12] The argument was that it was necessary for the Worker to propound a particular regime of job rotation that, if followed, may have obviated or minimised the risk of injury and that that was necessary in order that the further question of causation might be addressed by medical evidence.
That argument appears to be perfectly sound and correct. However, the primary judge was not persuaded by it. Rather, his Honour considered that the argument was "inappropriate" in considering "cases of malfeasance rather than nonfeasance". It is not clear at all what his Honour had in mind by that observation. It may be that his Honour was intending to refer to "misfeasance" rather than malfeasance, since his Honour, apparently by way of explanation, said that the question was not what "the defendants had failed to do, but what they did do". His Honour said that the substance of the Worker's complaint was that "the defendants" unreasonably and wrongly exposed her to the risk of injury by requiring that she continuously perform repetitive work "without rotation" and that that risk came home. His Honour then went on to say that the Worker's complaint was not that "the employer" failed to take steps to prevent her from an extraneous risk but that "the employer" created the risk. Once again, his Honour drew no distinction between Bauer and Demand.
The primary judge then concluded that "a reasonable employer" would have taken the precaution of not requiring the Worker to participate in "the system of work described in evidence". That appears to have been a reference to Demand. Significantly, however, his Honour did not at that point describe what that system of work was. The only description of the system of work in his Honour's reasons consists of the description of the tasks in terms similar to those set out above.
The primary judge then dealt with the "probability of harm", observing that Mr Cockbain justified his conclusion that the risk was "high", which his Honour characterised as "probable", if the Worker's tasks were not rotated. His Honour did not indicate in any way what was meant by the Worker's tasks not been "rotated" or explain how the system of work could have been changed. Nevertheless, his Honour accepted Mr Cockbain's opinion without further explanation.
The primary judge then referred to the argument advanced on behalf of "the defendants" that, because the Worker had been performing the work for more than six years without injury, it is improbable that the work caused or contributed to her injuries. His Honour rejected that argument, saying that the Worker commenced work in 2006 at the age of 46 and suffered symptoms in 2011 at the age of 52. His Honour said that it was reasonable to suppose that, with advancing age, the Worker's constitution had become less robust or more vulnerable to the effects of the work. His Honour supported that conclusion by reference to Mr Cockbain's opinion, referred to above, as follows: "Whilst the injuries are commonly attributed to an event close to the time at which the injury is reported, the role of cumulative exposures and the acts of multiple contributory causes or hazards is becoming evident." It is quite unclear what that means.
The primary judge then dealt with the likely seriousness of "the harm" and referred to the opinion of Dr James Bodel that the Worker has significant ongoing permanent impairment of function as a result of "the injuries", without indicating the "injuries" to which he was referring. His Honour referred to Dr Bodel's assessment of the Worker "as suffering 21% whole person impairment". His Honour observed that the Insurer had paid compensation in respect of an impairment, excluding the injuries to each wrist, on the basis of 15% whole person impairment. His Honour observed that such a consequence should have been contemplated by "the defendants".
The primary judge then dealt with the burden of taking precautions, saying that the obvious precaution available to Demand was to refuse to supply the services of the Worker to Bauer until "job rotation" was introduced and that that imposed no burden. His Honour did not say anything about what would constitute "job rotation", except to refer to evidence given by Mr Ryan Martin, who at the relevant time was a production planner employed by Bauer.
Mr Martin agreed that the TWI line and the manual bench were the primary tasks that employees of Demand were performing in his area. Mr Martin said that some of the employees from his area were trained and experienced in other areas within the worksite and some were not. He said some "were cross-trained against other areas, depending on their ability, and some were not". His Honour did not explain how that evidence supported the conclusion that there was no burden for Demand in refusing to supply the services of the Worker to Bauer. The primary judge also referred to evidence given by Mr Martin that other tasks available for employees to do would include folding brochures. His Honour made no finding as to the extent that such tasks were available.
The primary judge concluded his reasons as to negligence by observing that Bauer presented no evidence to the effect that "job rotation" would impose an unreasonable burden on it. Once again, his Honour failed to give any indication as to what he meant by "job rotation". A hint may be found in an observation made by his Honour in the course of oral address as follows: "It may be that they've just got to employ twice as many workers. You work for two hours and then you have two hours off." There was, however, no suggestion in any of the evidence that that was a course that might have been adopted by Bauer or by Demand.
The primary judge summarised briefly some of the medical opinion evidence concerning the Worker's injury. For example, his Honour referred to the opinion of Dr Bodel that the Worker had degenerative disc disease in the cervical spine and rotator cuff pathology in both shoulders, both of which conditions had been aggravated by the nature and conditions of the work in general. He referred to Dr Bodel's view that there was clinical evidence of carpal tunnel syndrome in the right wrist but not the left. In his report, Dr Bodel recorded that carpal tunnel syndrome is a very common constitutional ailment in a woman who is 52 years of age. Dr Bodel said the nature and conditions of the work that the worker was employed to do was "fairly physical, repetitive work on a processing line picking and packing magazines". He said that the Worker had to lift up to 20 magazines at a time and packed them into boxes, which weighed up to 25 kg in total and then they had to be lifted onto a packing line. He said that that type of work in a person who is vulnerable to the development of the carpal tunnel syndrome can suffer an aggravation, acceleration, exacerbation and deterioration in the disease process of gradual onset in the manner of that work.
Dr Bodel was obviously misinformed as to the nature of the tasks that the Worker was required to perform. She was not required to pack magazines into boxes that weighed up 25 kg and then lift them onto a packing line. More importantly, Dr Bodel makes no reference to the possibility that the "job rotation" of some sort might have ameliorated the conditions from which he found the Worker suffered.
The primary judge then referred very briefly to evidence given by Dr Kim Edwards and Dr Anthony Smith, both of whom expressed the opinion that there could be no causal relationship between the Worker's work and her wrist pain. His Honour simply concluded that "because of the coincidence of symptoms and work activities", his Honour preferred the evidence of Dr Bodel and Dr A J Sanki, a general surgeon. Dr Sanki, in a report, noted that the Worker's main job was to handle books, carrying books and packing them up and carrying them and picking them up from a line. He recorded that the Worker did that "maybe 100 times a day" and she carries things up to approximately 10 kg or more. Dr Sanki said that he considered that the Worker had suffered multiple injuries to the cervical spine and right wrist "as a result of the repetitive type of work". He concluded that the Worker's bilateral carpal tunnel was related "to the type of employment carrying heavy books for the last five years". Dr Sanki made no observations about the possibility that the Worker's condition might have been avoided by any form of job rotation. His Honour concluded that the Worker suffers from various conditions to which reference is made above "as a result of the negligence of the defendants". That appears to be a reference back to his Honour's earlier conclusion under the heading "Negligence" that one or other of Bauer and Demand had breached its duty of care to the Worker by failing to introduce "job rotation".

The Appeal

The Worker sought to support the findings of the primary judge that "the system of work" created a risk because it permitted repetitive work by the Worker without implementing "the necessary job rotation". She referred to his Honour's observation that the substance of her complaint was that the defendants unreasonably and wrongly exposed her to the risk of injury by requiring that she continuously perform repetitive work "without rotation" and that that risk "came home". The Worker sought to justify his Honour's reference to "nonfeasance and misfeasance" by saying that it was "in aid of characterisation of the act or omission" and was not determinative. Rather, she contended, his Honour approached the task as one of negligence. Certainly, his Honour dealt with these questions under the heading "[n]egligence". However, as indicated above, it is quite unclear what his Honour had in mind by referring to a distinction between nonfeasance and either misfeasance or malfeasance.
The Worker in written submissions, referred to the High Court's decision in Czatyrko v Edith Cowan University where the High Court observed that that case was one of failure to devise and implement a safe system of work and not simply a case of failure to warn. [13] The High Court observed that the case in the proceedings before it was not that a worker should have been warned by his employer that if he fell off the back of the truck he might suffer injury or that if he stepped off the back of the truck into space he would fall. Rather, the case was one of creating a risk by failing to adopt a safe system of work and there should have been a system of work in place that was designed to avoid the risk that a person requiring to step backwards and forwards on and from a moving platform might do so without first looking behind him. [14] The Worker relies on those observations by asserting that the system of work employed in the Premises created "the risk" because it permitted repetitive work by the Worker without implementing the necessary "job rotation". No attempt was made in the Worker's submissions to identify what "job rotation" should have been implemented.
The Worker referred to "the factual background in relation to job rotation" in the following terms:

the Worker stood on the TWI line continuously during shifts where the TWI line was being used;
the TWI line work was the majority of Worker's work;
during an eight-hour shift there were two breaks, 20 minutes and 30 minutes;
the shifts were up to four hours of continuous work;
on Sundays there was only a 20-minute break;
the employees had to work very fast;
the Worker was not rotated by Bauer and Demand between tasks on the TWI line, the manual bench and folding brochures;
Bauer and Demand did not tell the employees of the need to rotate or that it was in their interests to rotate and there was no mention of needing to rotate tasks at the half hour induction course provided for new employees;
the employees stayed in the same position on the station on the TWI line for the entire shift;
it was only when the employees finished all the work on the line that they would then move to the manual table or folding brochures;
the employees were invited to rotate to different stations on the TWI line every two hours but some employees did not wish to move and stayed in the same station, which did not change the weights that the employees were picking up or the nature of the repetitive movement; and
both Bauer and Demand were aware of the need to rotate workers when working on the TWI line and were aware of the risk of injury caused by repetitive work. The last point was supported by the evidence by Ms Joanne Usher, who was a manager of Demand at the relevant time. Ms Usher said that she was aware of the risks of repetitive work and that repetitive work could cause injury but that that was not specific to the Worker. The Worker also refers to the question and answer in the three versions of the safety checklist that rotation of tasks was used to avoid repetitive work.

The Worker also relied on the detail of the opinions expressed by Mr Cockbain in the Report as to the factors that contributed to the Worker's injury and the reasonable preventative measures that could and should have been implemented or undertaken. Before addressing those opinions, it is relevant to note some of the assumptions made by Mr Cockbain as to the "system of work" in place in Bauer's premises. His source of information as to those matters appear to be a telephone interview undertaken with the Worker in September 2015 and statements made by Ms Usher and Mr Martin in December 2011. The Report stated that the information contained in it had been prepared from a list that was set out in the Report under a heading "Research and Referenced Source Material". That list included the telephone interview. The statements by Ms Usher and Mr Martin were included under a different heading, "Documents Provided by Instructing Solicitor", but there was no similar indication of how they were relied on.
Mr Cockbain said that, based on the information provided to him, there were several clearly identifiable risks associated with the task being undertaken by the Worker as follows:

the requirement for the Worker to lift piles of books and magazines frequently stacked up to 30 items high and weighing up to 15 kg;
the requirement of the Worker to carry the piles of books and magazines by the straps and to carry one pile in each hand at either side;
the requirement for the Worker to assume ergonomically compromised postures and to undertake manual handling of loads at floor level and to lift loads above head height in order to place them onto high shelves positioned above head height;
the requirement of the Worker to lift large piles of books and magazines at one time in order to increase production and in order to keep up with the fast pace of the production line;
the requirement for the Worker to stand all day on her feet without regular breaks, seating or job rotation;
the requirement for the Worker to undertake the manual handling tasks without the assistance of any load shifting equipment causing her to lift and carry weight greater than a safe recommended weight consistently over the course of each day;
the requirement for the Worker to undertake continuous manual handling tasks without effective supervision, training or instruction in order to ensure that the Worker was not exposed to risk of injury; and
the requirement of the Worker to undertake the work task in the absence of any effective risk assessment which identified the hazards and risks to which the Worker was exposed.

Mr Cockbain also recorded in his report that manual handling and body stressing is a well-known major cause of musculoskeletal injuries "in the fast-paced consumer distribution industry" across Australia. He said that "body stressing" covers occurrences resulting from muscular stress while lifting, restraining, carrying or putting down objects, muscular stress while handling objects other than lifting, carrying or putting down, for example, pushing pulling, pressing or throwing objects, muscular stress with no objects being handled, for example bending twisting, reaching, turning, working in cramped positions and repetitive movement, low muscle loading. He recorded that musculoskeletal injuries can occur from performing work involving lifting, as was the case with the Worker, where:

lifting efforts are frequent, particularly if they are similar or repetitive;
some or all lifting efforts are significant;
loads are located outside of the knee to chest height range;
access to loads is restricted; and
the pace of work is significant. Mr Cockbain then said that it was understood that Bauer had been involved in the "fast paced customer distribution industry" for some time and should have a reasonable understanding of the specific hazards and risks associated with the various work tasks involved and in particular the exposure of workers to injury as a result of excessive and consistent manual handling tasks.

Against that background, Mr Cockbain expressed his opinions about the factors on the part of Bauer and Demand that contributed to the Worker's injury and the "preventative measures" that he said could and should have been implemented or undertaken by them. The factors are generalised in expression and, in so far as they are based on false assumptions made by Mr Cockbain, as is apparent from the above, the opinions should have been given no weight.
The so-called "reasonable preventative measures" are also directed to matters that are irrelevant in the circumstances of this case. Ultimately, Mr Cockbain referred to the development and implementation of "an effective system of job rotation" in addition to proactive and regular supervision to ensure that employees complied with the obligation and that rotation was undertaken at regular intervals. He was quite unspecific as to precisely what "job rotation" entailed. His ultimate conclusion was that the injury that befell the Worker was a consequence of an environment that did not afford a safe system of work and that the prospect of injury arising as occurred to the Worker would have to be regarded as "significant". He concluded that the cost for correction of the problem was minor in normal circumstances and something that both Bauer and Demand should have identified and addressed prior to the Worker's injury. He concluded that there were reasonable preventative actions available that, if implemented, would have significantly reduced or in fact obviated the risk to the Worker of sustaining a permanent damage type of injury. Once again, there was no indication as to any concrete preventative action that could have been taken and how that action could have reduced or obviated the risk of the injury alleged to have been suffered by the Worker.
The first ground relied upon by Bauer in its amended notice of appeal of 1 April 2020 was that the primary judge erred in concluding that there had been negligence on its part, in that his Honour:

did not make a conventional finding of negligence, in the sense of finding that there was a causative breach of a relevant duty, but reasoned backwards from the occurrence of an injury to a finding of liability;
erred in his application of the Civil Liability Act;
erred in the manner in which he addressed the issue of negligence by reversing the burden of proof; and
erred in relying upon Mr Cockbain's report in finding a breach of a safe system of work.

In its notice of cross-appeal filed on 16 April, 2020, the Insurer relied, among others, upon the following grounds:

the primary judge erred in failing to exclude the entirety of Mr Cockbain's report and in giving undue weight to the opinions expressed in it;
the primary judge erred in finding that the Worker was required to continuously perform repetitive work without rotation, that there was no rotation of the work tasks undertaken by the Worker and that rotation of the work tasks did not change the weights that the Worker was picking and lifting or the nature of the movement being undertaken;
the primary judge erred in finding that the risk that the Worker might suffer musculoskeletal injury as a result of the work on the TWI line was foreseeable and was foreseen by Demand;
the primary judge erred in failing properly to identify the risk of harm to the Worker and the content of the duty of care owed to the Worker by Demand;
the primary judge erred in failing to identify properly the alternative system of work that Demand ought to have instituted and maintained to avoid the risk of harm to the Worker;
the primary judge erred in finding that it was a reasonable response to the risk of harm to the Worker for Demand to refuse to supply the services of the Worker to Bauer.

The conclusion reached by the primary judge is that each of Bauer and Demand breached its duty to the Worker by not requiring her to rotate tasks. It appears that his Honour found that the absence of "job rotation" rendered the system of work unsafe and that provision of "job rotation" would have made the system safe. However, his Honour simply failed to explain what was meant by "job rotation".
In the course of oral argument, counsel for the Worker failed to formulate a process of "job rotation" that was available to Bauer or Demand, the implementation of which would or could have prevented the Worker from suffering the injuries that she claimed to have suffered. There were only three tasks involved in the work that was being performed by the Worker, as follows:

working at a station on the TWI line;
working on the manual bench; or
working at the labelling station. The only rotation that was possible was to move the Worker:
from one station on the TWI line to another station on the TWI line;
to the manual bench from a station on the TWI line;
from the manual bench to a station on the TWI line;
from the labelling station to a station on the TWI line;
to the labelling station from a station on the TWI line;
from the manual bench to the to the labelling station; or
to the manual bench from the labelling station. It might be assumed that requiring the Worker to engage in replenishing would not be satisfactory rotation because that work was heavier than the work that she was doing on the TWI line and the manual bench.

Neither Mr Cockbain nor his Honour explored precisely what rotation was feasible, quite apart from whether the adoption of such "job rotation" would have prevented the injuries claimed to have been suffered by the Worker. A fortiori, there was no examination of the question of the cost to either Bauer or Demand of such "job rotation". There was no evidence as to the extent of folding brochures that could have afforded employment for the Worker.
The Worker contended that Bauer and Demand had a system of work that required rotation but failed to implement that system of work. She asserted that, had that system been implemented, the number of workers was sufficiently small enough for each of them to be rotated through each of the tasks, namely, the TWI line, the manual bench, and significantly, the labelling role, although only one worker at a time could occupy the labelling role. Although there was what might be described as an elective system of rotation, where the workers could choose to rotate, the essence of the contention appears to be is that, had a compulsory system of rotation been in place, workers would have had some variation from their repetitive movements. That proposition certainly applied to the labelling role, which was a lighter task. The Worker contended that, by spending some time on that task, as part of a system of rotation, she would not have suffered her injuries.
The primary judge may have been alluding to such a compulsory system rotation system in his reference to "job rotation", but without greater specificity that is unclear. However, even assuming that was the meaning intended by his Honour, there was no evidence to suggest that working on the manual bench rather than the TWI line or moving from one to the other tasks regularly would have any consequence, adverse or favourable, so far as the Worker's alleged injuries were concerned. Similarly, there was no evidence that rotating to a different position on the TWI line would have had any consequence. While there may have been a small difference in the weights being handled, the movement would have been identical to the other parts of the TWI line. The question is whether requiring the workers to rotate such that each would have time in the labelling role would have made any difference.
The evidence suggests that the labelling role was indeed lighter work. It might be the case that some rotation through that task could have reduced the repetitive strain. However, there are several difficulties. First, there was a lack of evidence as to how rotating through that task would have made any difference so far as concerns the Worker's injury. While that task was lighter work, it is quite unclear how long a worker would have been required to be allocated to the labelling role in order to avoid the injury suffered by the Worker. Since only one worker could be engaged in the labelling role at a time, without knowing how much time each worker would need to be assigned to labelling, it is not possible to determine whether there would be enough labelling work to occupy all workers if a system of compulsory rotation was implemented. If, by way of example, there were to be a rotation every two hours, in any eight-hour shift, only four workers could be rotated during the shift in order to ensure that each worker had a time on the labelling work. Those issues were not explored in the evidence. In absence of such evidence, it is not possible to establish whether it was actually feasible to implement such a system of rotation.

Further Issues

Both Bauer and the Insurer challenged the finding by the primary judge that the Worker suffered a specific injury on 27 February 2011 during the course of her employment in Bauer's premises. In the light of the conclusion reached above, that there was no breach of duty on the part of Bauer or Demand and that there was therefore no causal connection between any breach of duty and the injuries alleged to have been suffered by the Worker, it is unnecessary to resolve that question. The appeal also raised questions of contribution as between Bauer and the Insurer. Again, in the light of the conclusion reached above, it is unnecessary to deal with that question.

Conclusion

It follows that the appeal should be allowed. I have had the advantage of reading in draft form the proposed orders of Basten and Meagher JJA, with which I agree.

Endnotes

Judgment at [16].
Judgment at [24].
Admissibility judgment at [4].
Admissibility judgment at [7].
(1924) 35 CLR 186 at 194; [1924] HCA 46.
Admissibility judgment at [18].
Brody v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; [2001] HCA 29.
Tcpt, 14/08/19, pp 204(7), 205(30)-(35), 206(40)-(45) and 207(25).
Judgment at [16].
Judgment at [32].
See Bauer Media Pty Ltd t/as Network Services Company v Khedrlarian [2018] NSWCA 208.
Citing Metropolitan Gas Co v City of Melbourne (1924) 35 CLR 186, 194 (per Isaacs ACJ); [1924] HCA 46.
Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14 at [13] ("Czatyrko v Edith Cowan University").
Czatyrko v Edith Cowan University at [14]-[15]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 November 2020

Occupational Health and Safety Act 2000(NSW)

Suitors' Fund Act 1951(NSW)

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