Torts - Negligence - Whether risk of injury to employee mechanical fitter reasonably foreseeable - Whether risk of injury slight and probability remote - Duty of care

Occupational Health Safety and Welfare Act 1985 (WA) s 19(1)

Devries v Australian National Railways Commission (1992-93) 177 CLR 472

1 MALCOLM CJ: This is an appeal against a judgment of Mr Commissioner Martino in the District Court dated 28 February 2001 by which the learned Commissioner awarded the respondent $359,499 damages for negligence. After a trial on 4-7 and 13 April 2000, reasons for judgment were delivered on 8 November 2000 and the damages as assessed were ordered to be paid by the appellant together with the costs of the action to be taxed. At the conclusion of the argument of this appeal for the appellant, counsel for the respondent was not called upon. The Court then ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal to be taxed and indicated that the reasons for making those orders would be published later. These are my reasons for joining in the making of those orders.

2 This appeal is concerned only with the issue of liability. There is no appeal in relation to the assessment of damages. The appellant challenges the finding that the respondent's injury (as distinct from the accident which caused the injury) was not reasonably foreseeable. Secondly and alternatively, it is contended that, having found that the injury was foreseeable, the learned Commissioner:

"... erred in law in not considering whether on the evidence the risk of it occurring was slight and its probability remote."

Thirdly, it is contended that the learned Commissioner failed to give proper reasons for his finding that the respondent's injury was foreseeable. Fourthly, it is contended that there were a number of findings of fact which were in error.

3 The respondent claimed damages for personal injuries against the appellant in respect of an accident on 26 February 1993 while working as an apprentice mechanical fitter at the appellant's premises. The respondent was born on 3 April 1974 and was aged 18 at the time of the accident. He had left school at the end of 1990, having completed Year 10. In 1991 he attended Rockingham TAFE and undertook a pre-apprenticeship course in metals, engineering and mechanical fitting. On 28 January 1992 he commenced an apprenticeship with the Metal Industry Group Training Association of WA (Inc) ("MIGTA"). The subject trade was Engineering Tradesperson (Mechanical), commonly referred to as the trade of "mechanical fitter"). The term of the apprenticeship was four years.

4 In 1992, while still employed by MIGTA under his apprenticeship agreement, the respondent worked for Wavemaster International. There he worked on catamaran boats doing welding, pipefitting and machinery. In November or December 1992 he commenced working at the appellant's premises in Subiaco. He remained employed by MIGTA, who provided his services to the appellant. The respondent's job at the appellant's premises was to work on an assembly line on which industrial airconditioning units were manufactured. His tasks were to fit compressors, pipes, panels and radiators and to weld the parts that made up the units. His supervisor was one Bradley Chugg. Mr Chugg was employed by the appellant as a leading hand. Mr Chugg's immediate superior was Mr Philip Smith, the foreman/supervisor who was also employed by the appellant.

5 The respondent ceased working at the appellant's premises in July 1993. He left because he lost his driver's licence and his apprenticeship with MIGTA was then suspended.

6 About this time the respondent's father and brother and their families moved to Kalgoorlie. The respondent's brother was working for JGB Contracting ("JGB"), a machinery and truck maintenance organisation. The respondent applied for and obtained employment with JGB and his apprenticeship was transferred to that organisation. He commenced at JGB in November 1993. He ceased working for JGB in about January or February 1996. He obtained his certificate as a mechanical fitter at that time. Although he had not completed the full four years of his apprenticeship, he received a four month dispensation on the ground of back pain. His dispensation was granted on the basis of evidence from his foreman and supervisor at JGB that his work was of sufficient standard for him to qualify as a mechanical fitter, which was accepted by the relevant authority. Since the early part of 1996 the respondent has had some employment as a trainer, but has been unemployed for lengthy periods and was unemployed at the time of trial.

7 By his statement of claim the respondent alleged that he was employed by the appellant and while acting in the course of his employment he was required to get inside an industrial airconditioning unit to weld a leak in a pipe. In order to get to the pipe it was necessary for him to adopt a very awkward posture. He had to hold the oxy-acetylene torch in his right hand and a brazing rod and mirror in his left hand and twist his body to the left to get at the pipe to weld the leak. As he was completing the weld to the pipe he felt a sharp pain on the right side of his lower back.

8 The particulars of negligence as pleaded were that:

"The [appellant], its servants or agents, were negligent in that it or they:

(a) required the [respondent] to work in a restricted area and adopt an unnatural posture which placed stress on his musculoskeletal system;

(b) failed to provide a device or to devise a system of work which did not expose the [respondent] to a risk of injury;

(c) exposed the [respondent] to a risk of damage or injury of which it knew or ought to have known."

9 The respondent also pleaded a cause of action under s 19(1) of the Occupational Health Safety and Welfare Act 1985 (WA) in that the appellant failed to provide and maintain a working environment in which the respondent was not exposed to hazard and in particular:

(a) failed contrary to s 19(1)(a) of the Act to provide and maintain a workplace and system of work in which the respondent was not exposed to hazard;

(b) failed contrary to s 19(1)(b) of the Act to provide such information, instruction, training and/or supervision of its employees when necessary to enable the respondent to perform his work in such a manner that he was not exposed to hazard; and

(c) the respondent repeats the particulars of negligence as particulars of the appellant's breach of statutory duty.

There was also an alternative claim for damages for breach of contract.

10 The appellant denied that it was the respondent's employer and also pleaded contributory negligence and raised an issue whether the injury suffered constituted a "serious injury" as defined in s 93D(1) of the Workers' Compensation and Rehabilitation Act 1981. The conclusions of the learned Commissioner in relation to these matters were not challenged on the appeal.

11 The respondent gave evidence that, on the day of the accident, the production line was quite full, the work was behind schedule and the production line was stacked with airconditioning units butted up against each other. There was a leak in a pipe in one of the airconditioners. Mr Chugg asked the respondent to weld the leak. To do so the respondent had to lean inside the airconditioner, twisting to his left and looking up under the pipe. He had an oxy-acetylene torch in his right hand and a brazing rod and mirror in his left hand. While undertaking that task he felt a sharp pain in his lower back.

12 The respondent said that he reported the accident to Mr Smith on that day. He did not immediately seek medical attention because he hoped his back would settle down. After one week it had still not settled down and he took a day off work to see his general practitioner, Dr Jose. He was then complaining of lower back pain going into his buttocks. Dr Jose gave him some medication and sent him for physiotherapy and chiropractic treatment. He was told not to work that weekend and to go back to work on the following Monday, avoiding lifting or bending. The respondent did go back to work on the Monday and continued to work at the appellant's premises. As long as he did not bend, lift or twist he was "okay", but he still experienced some pain, although it was bearable as long as he did not overdo anything. He had been told by Mr Smith not to do any awkward bending, twisting or lifting and he remained on light duties until he ceased working at Carrier Airconditioning in July 1993. The reason that he ceased work was that he had lost his driver's licence. His apprenticeship was then suspended.

13 The learned Commissioner appears to have accepted the evidence of the respondent regarding the manner in which the accident occurred. It was held that although the appellant was not the respondent's employer, the appellant nevertheless owed the respondent a duty of care according to the ordinary principles of negligence: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16. It was found that the respondent was working on the appellant's production line as part of a team constructing the appellant's airconditioning units under the supervision of the appellant's staff. The appellant, therefore, effectively had control of the respondent's work environment. In the circumstances it was held that there was no significant distinction between the content of the duty of care that the appellant owed to the respondent and that owed by an employer to an employee. This finding is not challenged on the appeal.

14 The critical issue in the context of the appeal was whether the appellant negligently exposed the respondent to a risk of injury. This would depend upon whether the risk of injury was reasonably foreseeable. In this respect, the conclusions of the learned Commissioner were expressed briefly in pars [95] - [96] of his reasons as follows:

"It was foreseeable that if the [respondent] had to adopt a position of bending, leaning forward with tools in both hands and with his back twisted that he would suffer some injury to his back. That was for example the evidence of Professor Harper.

That risk of injury could have been reduced or eliminated if the [appellant] had followed the normal course of allowing sufficient space between the airconditioning units for the corner panel to be removed without difficulty. Alternatively, the [appellant] could have ensured that space was made available for the [respondent] to remove the panel before he was required to carry out the repair. I conclude that in failing to take either of these steps the [appellant] was in breach of its duty of care to the [respondent] and that as a result the [respondent] has suffered personal injury."

15 It was accepted on behalf of the appellant that the appellant owed the respondent a duty of care according to the ordinary principles of negligence. The duty owed by the appellant to the respondent was to "take reasonable care to avoid exposing the [respondent] ... to unnecessary risk of injury": Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 per Dixon CJ and Kitto J at 25. At the same time, as was pointed out by Mason J in Raimondo v State of South Australia (1979) 23 ALR 513 at 518, the defendant employer:

"... will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger."

16 In this context the trial Judge must determine, first, whether the risk of injury to the plaintiff in the case was foreseeable in the sense that it was not far-fetched or fanciful and, secondly, if so, what a reasonable person would do in response considering the magnitude of the risk and the degree and probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities: Wyong Shire Council v Shirt & Ors [1980] HCA 12; (1980) 146 CLR 40 per Mason J at 47; Hamilton v Nuroof (WA) Pty Ltd, supra, per Dixon CJ and Kitto J at 26; Waugh v Kippen (1986) 160 CLR 256; Raimondo v State of South Australia, supra; and Jenkin v Shire of Dalrymple, unreported; SCt of Qd; 23 April 1993; Butterworths Unreported Cases No BC9303204.

17 In making those findings it is necessary to take account of the context, before or at the time of the event, in which the contingency was to be evaluated, recognising the possibility that there may not have been at the relevant time a reason to attach to the possibility the significance that it later assumed: Rosenberg v Percival [2001] HCA 18 at [16]; [2001] HCA 18; (2001) 75 ALJR 734 at 737 per Gleeson CJ; see also Rae v The Broken Hill Co Pty Ltd [1957] HCA 33; (1957) 97 CLR 419 per Fullagar J at 422; and Taylor J at 430.

Reasonable foreseeability of risk of injury

18 In support of the contention that the risk of injury was not reasonably foreseeable, it was contended on behalf of the appellant that, in effect, the degree of risk was so slight that the appellant was not required to take any particular steps to avoid the risk. In support of this contention it was accepted that the injury occurred in the manner which the learned Judge found. The leak which the respondent was repairing was located approximately 1.5 inches above and behind a horizontal pipe. As previously indicated, in order to carry out the repair, the respondent knelt down on the floor, lent inside the unit, twisted to his left and looked up under the pipe. The horizontal pipe was located approximately 1.05 m above the floor, namely, at chest level to the respondent. The respondent performed the welding work in the usual manner which was not regarded as difficult. It was also said on behalf of the appellant that this was within the ordinary, everyday or expected range or capacity of a tradesman such as the respondent. It would not be expected to cause injury to him, as he was not known to have any pre-disposition to back injury.

19 Reference was made to the evidence of Mr Peter Watson, a neurosurgeon, who was called to give evidence on behalf of the respondent. He had seen the respondent on three occasions and, on the third occasion, he had assessed his disability at 10 per cent. In his opinion, it was most likely that the respondent had developed a tear or annular tear in the disc at L5-S1 and possibly also a facet joint injury at L5-S1. This could be seen on an MRI scan.

20 In cross-examination of Mr Watson it was made clear that a fairly significant rupture of a disc could be caused just by bending forward and tying a shoelace. This is because the amount of trauma does not necessarily equate to the amount of injury to a disc. It was in this context that the following passage appears in the cross-examination of Mr Watson:

"The movements within what I would describe as the normal range of movement of the human body in day by day life. Would you agree with that?---That can happen, yes.

The particular movement I have described as he twisted and welded is within the ordinary range of human movements?---Yes.

I thought - and I sometimes misread doctors' reports; you will forgive me I hope - you were saying that he had soft tissue injury?---Initially I was of the opinion that his injury may be soft tissue. As time has progressed and with the ongoing symptoms, I'm more likely to be of the opinion that his injury is actually to the disc itself.

Yes, that's not clear from what you say in your last report, I don't think, because I think you end up by saying that it's soft tissue injury. You see, the disc on the MRI scan is not impinging on the nerve root, is it?---No, that's correct.

No, and if I read Desmond Williams' report correctly, he has gone from thinking it was probably the disc to thinking it was probably soft tissue because of the MRI scan. Is that just a difference of opinion, is it?---No. I think essentially there are two components to a disc injury. When you tear a disc annulus you get back pain and you get a degree of referred symptoms in addition to the back which go into the buttocks and down to a variable extent on to the lower limbs. When you get a disc protrusion which begins to then compress nerves, you get a more noticeable pain into the lower limbs. A lot of specialists will feel that if they don't see any evidence of nerve impingement or compression on the MRI scan, that that disc is not really symptomatic but that actually isn't true. There is quite good evidence to show that disc annulus structures have nerve fibres in them and they have quite a marked pain sensitivity within them."

21 Mr J L Croser, an orthopaedic surgeon, was of the opinion that the respondent's condition had been caused or contributed to a recognisable degree by the incident he described. However, he regarded it as unusual that a relatively minor incident could result in symptoms which had proved so persistent and disabling over so long, with such a paucity of clinical signs. Mr Croser also accepted that the task which the respondent was performing was an ordinary everyday movement and there was nothing unusual about it. It was not the sort of movement that a layman would expect to cause injury.

22 In re-examination it was brought out that it had been put to Mr Croser in cross-examination that the respondent was kneeling in front at chest height with a welding rod and a welding torch in his hand and a mirror. He had to put his head over his left shoulder in order to effect the weld but, although it was put to Mr Croser that he was twisting as well, it was not put that he was also leaning forward. Further, it was put to Mr Croser that, on the question whether that was an ordinary everyday movement, the respondent had described it as awkward in a situation leaning forward. It would not have been awkward if he had taken the panel off and simply done the job. Mr Croser was then asked how he would describe the situation, given that the respondent was kneeling and then leaning forward and looking around at the mirror which was at the back of the pipe. When asked whether he would describe that as "ordinary everyday", Mr Croser said:

"It's a movement which I would expect him to be able to perform. I would expect it to be an uncomfortable position to be in. I know that I would find it uncomfortable."

23 The respondent was in that position for some two or three minutes. When asked whether that was significant, Mr Croser said:

"I think the longer you maintain the position the more discomfort you're likely to experience."

24 Professor Andrew Craig Harper was called on behalf of the respondent. He had examined the respondent on four occasions. He found that the respondent was suffering chronic low back pain or mechanical low back pain. His evidence-in-chief was that:

"My assessment from the information with regard to his lesion is that he has got a disc lesion at the bottom of his lumbar spine, and as he has been twisting his back the disc between the fifth lumbar vertebra and the first sacral vertebra has been twisted and presumably torn so that there has been some fissuring, presumably, within the disc caused by the torsion, by a degree of bending and twisting, and that that fissure I would presume has progressed over time to produce some disc herniation, but it was the twisting of this fibrous and rubbery disc which caused some tearing of the disc itself."

He considered that his symptoms were likely to continue. The cause was the injury to the L5-S1 disc. From Professor Harper's standpoint, the symptoms of which the respondent complained were consistent over the four occasions upon which he had been seen. As a result of his injuries he was:

"... unfit for regular manual work, and I specified that he should avoid heavy lifting and twisting, bending, and awkward static postures."

25 His diagnosis was that there had been a permanent disability of the thoraco-lumbar spine in the order of 10 per cent loss of effective function. Professor Harper conceded in cross-examination that the movements which the respondent described to him when he was injured were "within the ambit of everyday activities for tradesmen". His opinion, however, was that such movements can cause injury of this kind.

26 In cross-examination, counsel for the appellant put the following question to Professor Harper:

"We have heard evidence from Mr Watson, for example, yes, it doesn't surprise him that this might have caused this injury, because you can slip a disc and cause injury to your spine simply by tying your shoelace. So to a doctor it doesn't seem unusual, but would you agree that to a layman it wouldn't be something that was readily foreseeable; that there might be an injury of this extent from those movements?"

Objection was taken to that question and the learned Commissioner commented that it was a question for the court. It was then accepted by counsel for the appellant that it was a question for the court and a matter for submissions.

27 Given the circumstances as they have been outlined, Professor Harper said:

"Generally I wouldn't expect injury, because welders are doing this sort of thing all the time, but obviously events such as this occur ... So welders are regularly twisting this way and working upwards and all the rest of it, so they are in static positions, so this was a standard - or is a routine task for someone fitting and welding, etc. But we know that these injuries do occur in the course of manual work and this man was the unfortunate one to have some injury."

28 Asked whether the situation would have been different if the panel of the unit had been removed, Professor Harper said:

"In terms of the biomechanics or of the effect that his posture has had ... the back is more stressed if you are stooped and leaning forward. It's not an organ which is well-suited to the stooped position, so that if in the work situation he has needed to be stooped, then that is going to apply some extra strain to ligamentous tissues - and I include the annulus of the disc in this - that will apply some extra force to that, which would potentially not have been applied, were he in a vertical position or less stooped."

He added that the twisting effect adds to the extra force. It was accepted that welders have to get their hands and eyes to whatever awkward position is necessary in a particular machine which requires repairing and this will require him to bend, twist and stoop. It was clear from Professor Harper's evidence that the task would have been made easier by the removal of the panel.

29 Mr Nickolay James Batalin, an orthopaedic surgeon who gave evidence for the appellant, was of the opinion that with a normal spine in a normal individual, bending and twisting for a number of minutes in a confined space would not produce a disc lesion. The application of force would usually damage the vertebra rather than the disc. If the spine had been normal, the task which the respondent performed "wouldn't have caused much problem". He suspected that the appellant had a pre-existing, ongoing degenerative change in his spine at L5-S1.

30 Dr John Graham Rosenthal, a specialist in rehabilitation medicine, gave evidence for the appellant. He had seen the respondent on two occasions. His note of the circumstances, as described to him, was that the respondent was working in a crouched posture and rotated to the left in the sense that he was on his knees and turning his body forward. He described the pain he felt like a "pulled muscle" but there was no referred pain in the buttock, groin or lower limbs. In those circumstances, Dr Rosenthal considered that he did not sustain a disc injury. His opinion was that the circumstances of the work injury as described to him were not likely to have caused anything more than some soft tissue strain. This was irrespective of whether he was crouched forward or not.

31 Mr Barrie Stephen Slinger, an orthopaedic surgeon, said in cross-examination that he was told by the respondent that he was working in a confined space, in a "twisted flexed or bent position ... a flexed, crouched, bending position, and the pain commenced". The respondent said pain commenced when he was working in the confined space. The cross-examination then proceeded as follows:

"The evidence we've heard is that he was down on one knee in front of a cabinet and he swivelled to his left to perform a welding operation on a pipe around the corner of the cabinet, I understand, either so that his body was twisted with his neck flexed to approximately 90 degrees from the forward position, or alternatively slightly further looking over his shoulder. It depends on what his Honour eventually finds as to those two things. But we have heard other evidence that that is an ordinary movement of the human body. Would you agree with that?---In normal circumstances, yes. And when you say it's a normal movement it's what the body is capable of doing, yes.

Everyday movement was another expression that has been used?---Yes.

The other evidence we have heard in relation to that is that medical practitioners know that that causes injury but it might not be commonly known. Would you agree with that?---Would you just repeat that last for me?

The evidence runs this way - I think it was Mr Watson who said it - 'It's not of any particular significance to me that he injured himself doing that because I'm a medical practitioner and I know these things happen. You can slip a disc tying your shoelace'?---Well, that's correct, yes.

But it's not one that might commonly be known?---When you say, 'commonly known', known - - -

Outside the medical profession?---I think people know that if they move into certain positions they can aggravate or produce pain in the back. I'm not quite sure what you're asking me.

What I'm asking is, would this position be one likely to cause pain [in] the back?---Twisting? Certainly, yes, especially in a confined space and particularly if he'd been working in that confined space for a period of time. By that I mean it's possible, I'm not saying it's probable. If somebody gave me that history, I'd say, 'That's reasonable. I accept that.'

What if there hadn't been continual working in the confined space?---Again if you perform a movement, whether it's sudden, quick or in certain positions or certain times when the body is perhaps fatigued, or not fatigued, why can you suddenly get a disc prolapse by simply bending and doing up your shoelaces? I can't answer that question except I do know from experience that people can experience pain with simple everyday movements."

32 Mr Andrew George Marsden, a spinal surgeon, who gave evidence for the appellant, reported that in his opinion the respondent suffered a soft tissue injury of the lumbar spine, but whether this was associated with an acute disc protrusion or herniation was impossible to determine so that the radiological features could not be correlated to the physical findings present following the injury. In his evidence-in-chief, the following passage is of relevance:

"The report details a story he told you about what happened to him in the third paragraph, a couple of sentences in. He said that he had to lean in, kneeling down, bending forward and twisting to his left, in order to weld a pipe?---Yes.

What we have heard in evidence is that he was kneeling on the ground and I think this morning he said twisted to about 45 degrees, looking back at his shoulder or in the direction of his shoulder, welding a pipe well to his left. That movement of the body, can you say anything about what I have said? Can you tell me how you would regard such a movement of the body?---Well, it's well within normal sort of expected capacity of a young man, I would have thought.

He said that after he had done this, he felt pain and he told you that it felt like a pulled muscle. He kept working, but the pain was still there the next day?---Yes.

A bit further down, he had no referred leg pain or buttock pain initially?---Yes.

What is the significance of the absence of leg pain and buttock pain initially?---It would be - if he'd had a very significant disc protrusion that was really interfering with one of the nerve roots arising out of that accident, he may not have felt even leg pain or buttock pain that day, but by the next morning, that's when it would have developed. If you've got a significant disc protrusion lesion, it's my experience that it comes on, usually, by the next day. One night in bed and when they get up in the morning, they realise they've got leg pain. Sometimes they have leg pain straightaway. Some people say they bent over, and whatever they did, and they felt the pain in their leg straightaway. That's usually a very big disc protrusion and sometimes it's not accompanied by any back pain.

So the evidence that he gave you that he had no referred pain is evidence of the extent to which he caused himself an injury, is it?---To me it would be evidence of - there wasn't a significantly large disc protrusion affecting a nerve root at that time."

33 Mr John D H Bell, an orthopaedic surgeon, who gave evidence for the appellant, said that a computer tomogram of the spine showed a small central disc protrusion at L5/S1 in 1994 which was observed again in 1995 after an interval of 17 months. He commented that the respondent showed "a degree of disease conviction" and in his opinion he still had symptoms as at 16 February 1998. In his evidence he confirmed the report of September 1999 in the following passage:

"I think you're aware that Mr Duzevich's ordinary occupation is that of a mechanical fitter?---Correct.

What is your view as to his ability to do the work of a mechanical fitter now?---Well, it's difficult to - certainly the work of a mechanical fitter can be very heavy. I have stated on the fourth page of my September 1999 medical report: 'I do see some doubt about the worker's situation presently. He really is very physically fit. He maintains that he is unable to work as a mechanical fitter and I suppose that it is reasonable to assess him as unfit for those duties,' and I have assessed him as being fit for other lighter duties."

34 I note also that Mr Bell's opinion was based on the respondent kneeling, twisting his spine about 45 degrees to the left and reaching up to about chest height holding a lightweight welding torch and welding rod and leaning forward to reach a pipe which was 90 degrees to his forward facing body.

35 Ms Jennifer Rosemary Miller, a qualified ergonomist, provided a report dated 11 November 1999 in which she said:

"The position which the [respondent] had to adopt in order to do the welding required forward flexion of the trunk while twisting to his left. With his height of 1.86 metres, he would have had to bend over to fit his head into the opening, the top of which was 1.27 m high, (400 mm high rollers plus 870 mm being the height of the top of the aperture above the rollers). The flexed and twisted posture of the trunk while holding his arms in forward flexion to reach into the unit would have placed strain on his lower back and increased his risk of injury.

The action could have been avoided if the leak had been detected before attaching the outside panels. In the event of the leak not being detected, removing the left front panel would have allowed the [respondent] to adopt a safe working posture and would be [sic] have been considered a safer technique. However this was not possible on this day due to the congestion of units on the conveyor line. The alternative method ordered by Brad Chubb [sic] put the [respondent] at risk of injury."

36 The following passage appears in the cross-examination:

"You see, the evidence that the [respondent] has given on several occasions is that he was down on one knee and was twisted to his left and was doing this job twisted to his left, and he said on some occasions - although he didn't say it in court - that he was looking over his left shoulder. We have heard evidence from several medical practitioners, Mr Watson for example, that that is just an ordinary everyday movement?---Yes.

Would you agree that it's just an ordinary everyday movement?---Yes - just looking over your left shoulder.

Yes. And there wouldn't be the leverage in those circumstances of which you have spoken by reason that his arms are outstretched because there wouldn't be the need to outstretch the arms in front of him. Is that proposition correct?---He would still have to outstretch them to a certain extent because he is still having to reach in to get this pipe but he is certainly not having to reach in and then turn as much to his left as he had explained to me.

There would be a limit, would there not, on the distance which he could forward flex into that opening because of the existence of the horizontal pipe 150 to 200 millimetres within the unit?---You would have to get your arms over that in order to - - -

Why would you have to get your arms over it?---If you were doing a weld on the back of that vertical pipe, you would have to get your arms in over the horizontal pipe in order to get around behind it.

But you wouldn't have to flex forward very far because you would be prevented by the pipe?---Yes, but because of the aperture of the opening you can't just lean forward like this.

No, but wouldn't you be prevented by the pipe from leaning very far forward? Would you or wouldn't you?---Yes, you would but you've still got to - - -

No. Okay, I understand that. What you then say is, 'Yes, but he's still got to get his arms over there'?---That's right.

But if it is about chest height, that's not a problem, is it?---No, but you have just got to reach forward over the pipe.

Yes, but it is not a problem, is it?---It's certainly less awkward than I had originally been told but it's probably not particularly comfortable.

All together it comprises an ordinary everyday movement and it is not one that carries any danger of injury, is it?---With this set-up here, it certainly has a lot less risk of injury from what he led me to believe was the case."

37 Dr Ian McKenzie Gibson, a qualified ergonomist, who was called by the appellant, gave evidence-in-chief as follows:

"Assuming the description of the work he was doing was as you have got in your report and taking it that the work was on an S18 in accordance with the questions I have asked you, on the evidence, can you express an opinion on whether what the [respondent] was doing was likely to lead to injury?---From the photographs I see now and my report and my understanding of the, you know, procedures in the factory, then I certainly wouldn't expect it to cause any problems that one could identify as causing a risk of injury.

If you were retained by the factory to make a report on its procedures and you were in the factory and you saw this happening, what would be your reaction to it? That is, you saw somebody kneeling, as the [respondent] has described, to weld a pipe in this way; if you saw that?---I would obviously want to spend some time seeing how - I mean the time that he spends - actually the task duration.

The evidence is two to three minutes?---Yes, but if I was just in the factory and saw him doing it, I would say, 'Well, what's he doing? How often does he do it? How long does he spend doing it?' you see, and if they said, 'Only now and again to fix a leak and it's two or three minutes,' then I would say, 'Okay, let's go and look for other problem areas that are perhaps more obvious.' I don't think I would have identified that as a risk, as a hazard presenting a risk of injury that we needed to take action about.

You're qualified, I think, in terms of the studies you have done and the experience you have had to comment on what is an everyday movement and what is an unusual movement. Is that correct?---Yes, I think that's right.

This movement described by the [respondent] in his affidavit, what words would you use to describe it in terms of the parameters I have mentioned to you?---I think that's the sort of least - I mean, I don't know how often people kneel down but as far as his upper body was concerned and moving around people - you use a lot of movements going around their - quite apart from work - normal daily life.

Is this movement - how would you classify it in terms of the comments you have made?---How do you mean? In terms of severity or frequency?

No. You're qualified to say whether a movement is an unusual movement or an everyday movement?---Yes.

So how in terms of whether it is an everyday movement or an unusual movement would you classify it?---I would think it would fall in the category of the sorts of movements that we come across in everyday life.

Ms Miller gave evidence yesterday that the position he adopted to do this welding would put a strain on the structures of the spine and I think the muscles associated with the spine, was her evidence. What's your view on that evidence?---Taking the word 'strain' of course quite technically - that is, the response of the structures to any stress, any load that is applied to them - so they're under a degree of strain as a result of the weight of your body anyway. If you just put your hands out in front of you - just like this - without any weights you have to increase the muscular activity of the - in the lower back to stop yourself tipping forward, so there is even with just simple movements very small changes in the stresses experienced by structures and therefore they result in strain, but that's - it can be incredibly small. You still talk about 'strain' as a technical term as opposed to meaning something that is going to cause injury.

Do you have an opinion then on what Ms Miller yesterday opined herself? What would you say to her opinion?---I would think she was taking it purely as a technical word in saying, 'Yes, there is some increased strain if you just move your body slightly forward, put your hands out, hold a small weight.' I don't know whether she was expressing opinion - that a layperson might use the word 'strain' meaning this is something that's going to cause a problem."

38 I note that it was pleaded by the appellant in its defence that the respondent was negligent in failing to remove the left hand corner post of the airconditioning unit, which would have facilitated access to the unit. The position was that he was unable to do this because of the fact that the units were too close together on the conveyor to permit this to be done. Dr Gibson also accepted that it would be much easier to carry out the weld if the side panels on the unit had been removed. As it was, they could not be removed for the reason stated.

39 The learned Commissioner found that it was reasonably foreseeable that if the respondent "had to adopt a position of bending (my italics), leaning forward with tools in both hands with his back twisted that he would suffer some injury to his back". His Honour said that such was "for example, the evidence of Professor Harper". The relevant evidence is [at AB162] where Professor Harper refers to a worker who was "stooped (my italics) and leaning forward". As has been seen, however, in par [87], the learned Commissioner said:

"To carry out the repair the [respondent] knelt down on the floor, lent inside the airconditioning unit, twisted to his left and looked up under the pipe. While [he was] performing that task he felt a sharp pain in his lower back."

40 It was submitted that the distinction between the posture so described and a bending/stooping posture is important for the reasons stated in the evidence of Ms Miller, a qualified ergonomist and physiotherapist. The following passage appears in her cross-examination at 222-224:

"Now, when you gave your evidence-in-chief, I understood that your first understanding was that he wasn't kneeling, that in fact he was bending over from his waist?---That was my understanding of what he actually said to me, yes.

And so if he was bending over from his waist and was bending into - and again I'm referring to the first sheet of photographs of the one on the left-hand side. If he was bending down into there he would have a very great deal of forward flexion, wouldn't he?---He would, but don't forget that that is not actually representative of the situation because that unit would have been on top of the rollers which are 400 - - -

Another 480 mm. Look, I understand that, yes?---So if he was standing over, he would actually have to be bending over to chest height. If he's kneeling then that means he is not obviously having to bend so far - - -

That's right?---But he's still having to lean in and twist to see the pipe.

We will come to that, but if he's kneeling he certainly doesn't have to bend so far, does he?---No, he doesn't, no.

He said he was 1.85 m tall. In fact he has answered an interrogatory that he's 1.75 m tall. Would that make any difference to what you have to say, first of all, if he was standing before the cabinet, bending over, leaning into it?---If he was 1.75 - and having seen him I don't actually think he is, but if he is 1.75 and he's bending he certainly has less trunk flexion, yes.

And similarly there would be a similar amount less function or trunk flexion if he was kneeling?---If he's kneeling he doesn't have the same degree of trunk flexion anyway. Height is not particularly relevant if he's kneeling.

So all of your report was prepared on the premise that he was standing up, leaning over into it. I understand referring to the photograph at the top right-hand corner on the first page of the photographs, the unit, on your understanding, up on - - -?---That's right.

- - - relative to the production line you can see there but he would still have to, if he was standing, bend over to a large degree?---Yes, he would.

And the whole report is premised on that, isn't it? What you have put in writing here is premised on that?---It's premised - if you're actually saying he's standing, yes, he has the trunk flexion, if he's kneeling he still has ... the rotation ... he doesn't have the same degree of trunk flexion but he will still have the twisting and some degree of trunk flexion because he's obviously having to lean into the unit.

WALTON, MR: Yes, but the report is premised on two things. The first thing is he is flexed forward from the waist bending down into the unit, and the second premise is that the pipe was behind the corner?---That's correct, yes."

41 It was contended that the learned Commissioner failed to have regard to the evidence of the medical practitioners, including the evidence of Professor Harper, which did not support a finding that there was a foreseeable risk of injury to the respondent when he was working in the kneeling position.

42 On this basis it was contended that the learned Commissioner failed to provide proper reasons for his finding that the respondent's injury was reasonably foreseeable for two reasons. First, it was submitted that the reason stated by the learned Commissioner in par [95] of the reasons was not relevant. As has been seen, the reason given was that it was foreseeable that if the respondent had to adopt a position of bending, leaning forward with tools in both hands and with his back twisted, that he would suffer some injury to his back which, for example, was the evidence of Professor Harper.

43 As I understand the evidence, whether the respondent was squatting or kneeling, he was required both to lean forward with tools in both hands and with his back twisted. Common sense would tend to suggest that the critical aspect of the situation was the necessity to crouch or kneel and at the same time twist and reach upwards.

44 In these circumstances, I reject the further submission that the learned Commissioner did not advert to the evidence that was relevant: cf Lloyd v Faraone [1989] WAR 154 per Malcolm CJ.

45 In my opinion, the conclusion that the injury to the respondent was reasonably foreseeable should be upheld. It is a matter of common knowledge that persons called upon to work in confined situations such as that described in this case are exposed to the risk of back injury of the kind suffered by the respondent. For these reasons ground 1 fails.

46 It was contended in support of ground 2 that, if the risk was foreseeable, the learned Commissioner wholly failed to consider and apply the second limb of the test in Wyong Shire Council v Shirt & Ors, supra. It was submitted on behalf of the appellant that the learned Commissioner was required to consider whether a reasonable person in the position of the appellant would have considered the magnitude of the risk sufficient to justify taking alleviating action, having regard to the circumstances prevailing in the production line at the material time. In Wyong Shire Council v Shirt & Ors Mason J, having noted at 46 that in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty & Anor (The "Wagon Mound" [No 2]) [1966] UKPC 1; [1967] AC 617 at 643-644, Lord Reid rejected the view that a real risk which could properly be described as remote must be held to be not reasonably foreseeable, commented as follows:

"It is beyond question that their Lordships positively rejected the view that a risk of injury which is remote is of necessity not a real risk and that it falls outside the concept of foreseeability. What is more, as I read the opinion, the rejection of this view was essential to the decision in the case."

The view so expressed was the unanimous view of all the members of the House of Lords in a decision on an appeal from an Australian court.

47 Having referred to some of the authorities in the High Court, Mason J said at 47, "There were sound reasons for accepting the decision that The "Wagon Mound" [No 2] was a correct statement of the law". His Honour went on to say at 47:

"A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone ([1951] AC 850) may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable many would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of 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."

48 In my opinion, merely because the kind of welding work in which the respondent was engaged and the fact that kneeling, bending, twisting and looking up in awkward situations were part and parcel of the work necessarily increased the risk to which the respondent was exposed. The obligation on the employer would be to take such action as was open to it to minimise the risks involved. The risk must have been apparent and, in this case, the situation was compounded by a failure to space the units on the conveyor system in such a way as would facilitate access to the individual units for work to be done on them or, to remove the outside panel so as to make access easier. I do not accept the submission that the magnitude of the risk of injury was so small, and the probability of it occurring so remote, that it was not necessary for the appellant to take the measures referred to by the learned Commissioner because there was no reason to attach that degree of significance to the risk. For these reasons ground 2 fails.

49 It was contended in support of ground 4 that the learned Commissioner erred in finding that the risk of injury could have been reduced or eliminated by removing the lefthand corner post. It was not a finding which depended upon the credibility of witnesses. As has been seen, Mr Philip Smith, the respondent's former supervisor, said that it was a lot easier to access the weld site on the vertical pipe if the corner post panel was removed. Mr Smith designed the airconditioning units. It was on this basis that the learned Commissioner concluded that the evidence given by the respondent and Mr Smith was correct and the evidence that taking the corner post off would not make the task any easier, which was given by Mr Chugg, was not correct and that the respondent's access to the weld site would have been easier if he had been able to remove the corner post panel.

50 It was submitted that the learned Commissioner had misapprehended the significance of the evidence by Mr Smith, having regard to the rest of his evidence, which corroborated the evidence of the foreman Mr Chugg that:

(a) it was not necessary to remove the corner post to perform the weld, nor was it the usual procedure to do so (Smith AB276-288; Chugg AB334-336-7, 345, 348, 351, 357);

(b) there was nothing difficult about the way the respondent actually did the weld (Smith AB278; Chugg AB334);

(c) use of a mirror was standard and would have been necessary even if the corner post was removed (Smith AB278, 285-7; Chugg 338);

(d) removing the corner post would "not make much difference" (Smith AB287) or would not be easier (Chugg AB338, 346-8, 354); and

(e) there was no known history of back injury arising from the procedure (Smith AB279-280; Chugg AB338).

51 In my opinion, the circumstances were such that the appellant was not entitled to ignore the risk of injury and take no steps to eliminate it. As Windeyer J said in Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 at 319, in this case the appellant has:

"... 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."

No expense was necessary to eliminate the risk. All that had to be done was to ensure there was sufficient space between the units so that the panel could be removed on the unit requiring the weld. When the appropriate space was left between the units on the conveyor belt, access to the units was facilitated. When there was a bank up, it could be sorted out by taking a unit or units off the end. When the units were left without sufficient space, the system of work was unsafe. This was a question of fact which was correctly decided by the learned Commissioner. In my opinion, the findings of fact were clearly open on the evidence. The respondent's own evidence was that if the panel was removed it would have been easy to carry out the weld. This evidence was confirmed by Mr Smith who had designed the units. The risk to which the respondent was unnecessarily exposed was that he had to twist his body while in an awkward position as a result of which he injured his back. It is apparent that the risk of injury could have been eliminated or reduced by having a system of work whereby the units were always spaced sufficiently apart so that a worker who needed to could remove a panel or panels before effecting a weld which was required while the units were on the production line.

52 For these reasons I am of the opinion that the appeal should be dismissed.

53 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by the Chief Justice, with which I entirely agree.

54 ROBERTS-SMITH J: I have had the benefit of reading the reasons to be published by the Chief Justice. I agree with those reasons and have nothing further to add.