Cavanagh v Manning Valley Race Club Ltd

Court of Appeal (NSW)|2022-02-18|Before: Leeming JA, Adams J

[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.]

Damages determined at trial

In some respects, Mr Cavanagh's claim was straightforward. There was a relatively minor dispute concerning damages, which were assessed notionally by the primary judge at $1,004,111.04, for reasons occupying most of the fourth and half of the fifth (and last) pages of the judgment. The scope of that dispute was limited by a medical assessment certificate dated 22 October 2019 assessing his whole person impairment at 27%, following years of treatment including a C 5-6 cervical fusion in February 2017. The degree of permanent impairment certified in the assessment was conclusively presumed to be correct in proceedings in any court: Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 326(1)(a).
Mr Cavanagh made no challenge to the notional assessment of damages in this Court. Nor did the respondent. Had that not been so, it would have been incumbent upon it to file a (necessarily contingent) cross-appeal.

Limited dispute as to liability

On the issue of liability, the issues were further narrowed by what had occurred in the preceding years. In particular, Mr Cavanagh had the benefit of an agreement that he had suffered injury in the course of his employment by reason of the nature and conditions of his employment comprising the aggravation, acceleration, exacerbation and deterioration of a disease in his cervical spine and right upper extremity. It was also agreed that his employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of the disease. Thus there could be no live question of causation.
Of course, the respondent owed Mr Cavanagh the duty of care owed by an employer to its employee. But it remained for Mr Cavanagh to prove that there was a breach of the duty owed by his employer. Not every personal injury sustained by an employee at the workplace is one for which the employer is liable in negligence. The employer's duty is not an absolute duty to keep an employee free from injury: see for example Top Hut Banoon Pastoral Co Pty Ltd t/as Trustee for the Wakefield Family Trust v Walker [2021] NSWCA 296 at [19]. Breach is to be determined in accordance with the common law unaffected by the Civil Liability Act 2002 (NSW), which is disapplied by s 3B(1)(f) because Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW) is applicable.

Mr Cavanagh's divergent accounts of how he operated the leveller

Mr Cavanagh's pleaded case focussed upon one aspect of his employment, namely his being required frequently to turn his head and upper body to look at the leveller. Paragraph 4 of his statement of claim alleged that: "[i]n order to check that the 'leveller' was at the correct level, the plaintiff was required every few seconds to turn his head and upper body about 160 degrees to the right."
That reflected a notice provided to the defendant dated 17 September 2018. It was also reflected in the instructions given to an occupational therapist whose report was tendered in his case. The actual notice however seems not to have been tendered at trial.
The respondent did not admit that allegation, and the difficulty presented at trial was that when Mr Cavanagh gave evidence in chief, he seemingly gave a series of inconsistent accounts. These inconsistencies, and the way (if at all) the primary judge sought to resolve them, are at the heart of this appeal.
First, Mr Cavanagh was asked these questions: "Q. … I want to ask you, you did look forward where the tractor was going from time to time, didn't you? A. Yes, I would glance up to keep - keep an eye on where I was going, yes. Q. And how many times every minute would you glance back, on average? A. On average, probably 30 seconds out of the minute. HIS HONOUR: Q. Sorry, you would glance back every 30 seconds or every minute? A. Yeah, I'd be glancing back looking over my right-hand shoulder. Q. 30 seconds or a minute? MARSHALL: Q. So once or twice a minute? A. Yes."
The answer of turning his head "once or twice a minute" which had been embraced by his counsel was the subject of the following exchange some eight pages of transcript later (and still in evidence in chief): "Q. Going back to your description of what you would do when you were driving the tractor with the leveller on it, you told his Honour that you'd turn back every once or twice a minute to look at the leveller? A. It'd be more than that, but yeah. Q. Well, I'll ask the question again, how many times each minute would you turn around to look at the leveller? A. Probably ten times a minute. Q. How long would you stay in that flexed position to look at the leveller? A. Five or six seconds each time. Q. You'd turn around to look at the front, how long would you look at the front for? A. Two seconds. Q. Then what would you do? A. Turn to the back again. Q. Was that a continuous operation? A. Yes, it was."
The primary judge then intervened and asked the following questions: "HIS HONOUR: Q. So that you'd only be looking ahead for about ten seconds in every minute? A. About ten, 15 seconds that I'd be looking to the front. Q. Sorry, 15 seconds a minute looking to the front? A. Yes. Q. I've got your evidence that once or twice every minute you looked back then I've got your evidence that you were looking back ten times for five or six seconds, which left one second looking to the front and now you say 15 seconds in every minute you looked to the front, do you see the inconsistencies? A. I've seen, it's very hard to explain. Q. I know it's very hard for you but this is why I want you, before responding too quickly, to have a think and come up with your best estimate. A. Sorry."
The impression from the transcript as a whole is that there was a pause, or some unrecorded gesture from Mr Cavanagh in answer to the judge's question. In light of the question from counsel which immediately followed, I would not understand the response "Sorry" to mean merely that Mr Cavanagh had not heard what the judge had said. It was conveying that he was unable to do better than he had already done. When those inferences were raised during argument on appeal, they were supported by Mr Cavanagh and not disputed by the respondent.
Thereafter counsel asked the following: "Q. Think carefully to his Honour's question, he just wants to know if you can visualise your operation of how you drove the tractor with the leveller and how you would do it so he understands? A. Probably the best way to explain it is, with the chair and that, you're looking back over the right-hand shoulder down constantly at there. Then every time you get - you glance up to see whether you're on the right track whether - so you don't run into the running rails that you're going to or you're next to, then you look back again looking at the level."
Shortly after, the plaintiff's counsel said: "Just judging from your demonstration of looking forward and looking backwards on the swivel chair that you have, you turned your entire body on the swivel chair. Is that how you did it?", to which the plaintiff agreed.
A little later, the plaintiff was asked these questions: "Q. How many seconds would you continue, roughly speaking, looking down in that flexed position before you'd look back to the front? A. It's been a while but probably five, six seconds you're looking down. Q. Which was the most important direction to look at for your job? A. To the rear."
All those questions and answers were given in the course of Mr Cavanagh's evidence in chief. (I note that his evidence was taken orally, rather than by reading an affidavit or agreeing to the accuracy of a witness statement.) Notwithstanding those plain inconsistencies as to the frequency with which the plaintiff looked back over his shoulder, counsel for the defendant/respondent embraced the evidence given during his demonstration in the witness box when she asked the following: "Q. I want to put to you that the way you did your work it was not necessary for you to constantly look over your shoulder in the manner that you have described and given evidence in this Court. A. I disagree with that fact."
It will be seen that the cross-examiner accepted that he had given evidence that he constantly had to look over his shoulder. There was no other cross-examination on any aspect of Mr Cavanagh's evidence relating to the frequency with which he turned his head while operating the leveller.
In final address, counsel for the respondent (who addressed first) said "it doesn't really matter at the end of the day" how frequently he looked over his shoulder, but then added that "[Mr Cavanagh] said essentially his job involved looking behind him". However, when the judge said that he was minded to find that it was "no more than once a minute", she said that she supported that finding, notwithstanding that so far as I can see none of Mr Cavanagh's evidence supported such an infrequent turning of his head.
In his final address, counsel for Mr Cavanagh accepted that "various answers" had been given to those questions concerning how frequently he turned his head. Counsel maintained that Mr Cavanagh was trying to do his best, that in terms of how many times a minute, the evidence was "obviously reconstructed" and "it's not an actual memory" and that "his attention was predominantly directed to the rear, because that's where the action was happening". In answer to a specific question from the primary judge, he contended that his Honour "should ignore his evidence that it was perhaps once a minute".

The reasons of the primary judge

The hearing in the District Court proceeded over two days in May 2021 and two days in June 2021. The primary judge reserved and produced reasons for judgment a fortnight later. The reasons are deficient. The main defects are lack of clarity as to whether the dispositive finding of fact was actually made, and a failure to provide a fair account of the plaintiff's evidence.
Paragraphs [1] and [2] identify the claim, and [3] and [4] reject the respondent's contention that there was no liability because the plaintiff was the author of his own harm (I return to this below). Paragraph [5] identifies, correctly, that the occupational therapist Ms Weigall gave evidence that the injury was foreseeable and could have been prevented if the respondent had taken certain suggested steps, and [6] identifies, critically, that Ms Weigall's opinion was based on Mr Cavanagh's statements that "in the course of the work he turned his head every few seconds". Paragraph [7] states that "[t]his history was not proved in evidence". That conclusion is explained in paragraphs [8]-[14] which are best reproduced in full: "[8] It [sic] his evidence in chief Mr Cavanagh said that he performed the levelling work on every day that he worked, that is, 5 ½ to 6 days each week, and the work took 3 to 4 hours on occasion. He further said that towards the end of his employment he levelled the tracks seven days a week. [9] In cross examination he conceded that the levelling work was shared with other workers, Mr Chambers and later Mr Hubbard. He said that Mr Hubbard performed 30% of the work. I assume that Mr Chambers did likewise. [10] Mr Cavanagh initially said that during the 3 to 4 hours of levelling he looked back once or twice a minute to observe the accumulation of material in front of the leveller and adjust its height accordingly. [11] He later said that he would look around at the leveller 10 times a minute for this purpose, each glance occupying five or six seconds. He said that he would be looking to the front for only two seconds in every minute. This was so obviously absurd, that Mr Cavanagh then said that he would be looking ahead for about 10 or 15 seconds in every minute. [12] The inconsistencies in these accounts were pointed out to Mr Cavanagh, and he was asked to reflect and come up with his best estimate. He was unable to provide an answer. [13] He later said that "probably five, six seconds you're looking down". I can accept that you are five or six seconds [sic], but it is not compatible with an assumption that Mr Cavanagh turned his head every few seconds. [14] Accepting the outer limit of Mr Cavanagh's estimation, that is, that he turned once each minute, for a duration of five or six seconds, the question then becomes whether such frequency created a reasonably foreseeable risk of injury. Given sufficient imagination and pessimism everything is foreseeable." (emphasis in original)
In [15] and [16], the primary judge reproduced a passage from Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 and a passage from Seltsam Pty Ltd v McNeil [2006] NSWCA 158; 4 DDCR 1 at [36], both dealing with the class of risks against which a defendant is required to take steps. The judgment then continued at [17]-[19] as follows: "[17] There is no evidence that it was well known in industry that a movement repeated once every minute created a foreseeable risk of musculoskeletal injury. [18] Ms Weigal [sic] cites the results of studies undertaken between 2000 and 2011 by experts from the University of New South Wales to the effect that repetitive work in which the neck is flexed more than 20° for more than two thirds of working time is significantly associated with the development of rotator cuff syndrome. This does not assist the plaintiff. [19] I am unable to find that Mr Cavanagh's work created a foreseeable risk of injury sufficient to impose a duty upon his employer to take precautions against that risk. There must be judgement for the defendant." (emphasis in original)
It is not necessary to address all of the grounds of appeal. It is convenient to commence with the first ground, which inter alia contends that the primary judge failed to provide adequate reasons. As in Lloyd v Thornbury [2019] NSWCA 154 at [8], this is an "overarching issue" which infects the other complaints made on appeal.

The reasons were inadequate

The judgment is strikingly short. Four and a half pages is little more than one page for each day of a trial worth more than $1,000,000. Concision in judgments is desirable, but not if it comes at the expense of failing to give adequate reasons.
There is no occasion in this appeal for any elaborate account of the applicable principles. Various authorities are collected in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[66], including at [59] the propositions that "[t]he reasons must do justice to the issues posed by the parties' cases", in order to "enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted". This is a clear case of inadequate reasons.
A prominent issue at trial was the frequency with which Mr Cavanagh turned his head to look at the leveller behind him. When the appeal was heard, the parties debated whether there was a finding made by the primary judge that the appellant turned his head once every minute for a duration of five or six seconds. The appellant said there was no finding at all; the respondent said that there was an implicit finding that Mr Cavanagh turned his head once a minute. The parties are not to be criticised for taking the course they did; I think there is real doubt as to how the reasons for judgment are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim.
It is true that the analysis in the reasons, especially at [14], [17] and [18], is premised upon a finding that Mr Cavanagh only turned his head once per minute. It is also true that there is no express finding that that is what occurred. Rather, the primary judge made an analysis based on what he described as "the outer limit of Mr Cavanagh's estimation".
If there was no finding, then Mr Cavanagh's claim was dismissed without there being any finding as to the frequency with which he was required to turn his head.
It is possible to decide a case without making a finding as to the primary facts which are alleged to give rise to the dispute. For example, it is not uncommon for a motor vehicle accident or an occupier's liability case to be determined without a precise determination of the mechanism of the events giving rise to the injury. Findings of breach and causation may in some cases be made even in the absence of precise findings of primary fact.
But the present case is well removed from that class of case. Accepting that Mr Cavanagh did at one stage give evidence that he only turned his head "once or twice" a minute, notwithstanding his subsequent correction of that evidence, on any view he also gave evidence that he turned his head more frequently. Indeed, that was the thrust of his evidence. Yet the reasoning only addresses the possibility that Mr Cavanagh was turning his head once a minute. Thus, if no finding was made, it was not possible to sustain the judgment for the defendant, because it did not address a substantial part of the evidence advanced by Mr Cavanagh.
I favour the view that, reading the judgment as a whole, it is to be understood that the judge did find that Mr Cavanagh turned his head once a minute. No such finding is made expressly, but this is not a judgment which has been carefully crafted. As Mr Catsanos SC, who appeared in this Court but not at trial, submitted, such a finding is the best way of making sense of the dispositive reasoning that the risk of harm was not foreseeable. For what it is worth, it is also the finding which the primary judge intimated to both counsel during closing addresses, as reproduced above.
But if the reasons are to be read, somewhat charitably, as amounting to a finding, they nonetheless confront insuperable difficulties. The finding was adverse to Mr Cavanagh - indeed it was dispositive of his entire claim - but why was it made? First, it is not a fair statement of the appellant's evidence to conclude that "he was unable to provide an answer". Undoubtedly something happened - presumably a long pause, and perhaps much more that was evident to those in Court than may be seen from the response "sorry" on the transcript - when the judge asked that question. But the question was repeated by Mr Cavanagh's counsel, and Mr Cavanagh evidently gave a demonstration in the swivel witness chair of what actions he performed when driving the leveller during the course of his employment. During that account, his evidence was that he was looking behind him "constantly". As noted above, this variant of his evidence was taken up by the cross examiner.
There is no explanation of why what appears to be the best testimonial evidence given by Mr Cavanagh, which was accepted by counsel for the respondent as being his evidence, was rejected in favour of a finding that he only turned once each minute. Indeed, what occurred in answer to the questioning is not even mentioned in the reasons for judgment.
Nor is there any attempt to record, let alone engage with, counsel's submission that Mr Cavanagh's evidence reflected the fact that "his attention was predominantly directed to the rear" and that his evidence (later corrected) of turning his head once a minute should be ignored.
Further still, it will have been seen that on those occasions when the plaintiff appears to have given evidence that he turned relatively infrequently, he consistently said "once or twice" each minute. There was no explanation of why any finding is based upon his turning head only once a minute, rather than twice a minute or even "once or twice" a minute. The trial judge said "accepting the outer limit of" Mr Cavanagh's claim, but gave no explanation of why it was appropriate to proceed on the basis of the part of his testimony which was least favourable to him. It is not uncommon to hypothesise the most favourable way in which a disputed finding might be made, and on that basis to conclude that even so the party must fail, thereby obviating the need to make the finding. But the approach taken in the present case leaves undetermined whether there would be a breach of duty if other aspects of the plaintiff's evidence were accepted, and does not explain the basis for making the finding which was made.
It may have been open to the primary judge not to be persuaded by anything that the plaintiff said concerning the manner of his work many years previously. But there is nothing in the reasons for judgment to that effect.
Reasons for judgment perform the important role of explaining, not least for the benefit of the unsuccessful litigant and for an appellate court, the basis upon which the result was obtained. In the present case, the plaintiff's claim was very substantial - he had not worked since 2011 - and there was a four day trial. The reasons do not adequately engage with a principal issue in contest at trial, being the issue which was treated by the primary judge as dispositive of the claim. The reasons do not even mention what, on its face, appears to have been the best evidence by the plaintiff, giving a demonstration in answer to the judge's question of what he did in the course of his employment. It follows that the judgment cannot be sustained and the appeal must be allowed.

The orders this Court should make

Against the possibility that the Court would reach that conclusion, Mr Cavanagh sought an order that this Court enter judgment in the undisputed amount in his favour, while the respondent said there should be a retrial.
There may only be a retrial if it appears that some substantial wrong or miscarriage has been occasioned: UCPR r 51.53. The rule may be traced to the Judicature legislation (it was r 48 of the rules annexed to the Judicature Act 1873, Order XXXIX r 3 of the 1875 rules and Order XXXIX r 6 of the 1883 rules), yet it was not introduced in civil litigation in New South Wales until 1972 (as Pt 51 r 16(1) (later renumbered as r 23(1)) of the rules annexed to the Supreme Court Act 1970 (NSW)). The purpose of the rule was to overturn an entitlement on the part of the losing party to a new trial where evidence had been erroneously admitted or rejected: see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [13]-[16], Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116 at [15] and Bray v Ford [1896] AC 44 at 52. In the latter, Lord Herschell observed of r 6 of the 1883 rules that the provision was "a very beneficial one", and that "I should be sorry to say anything to narrow its scope further than the language employed seems to me to render necessary".
Perhaps the most common operation of what is now UCPR r 51.53 is where the appellant establishes an error during the course of the trial or in the reasons for judgment, but nonetheless the appeal should be dismissed because the error was immaterial: see Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [38]-[39]. But the operation of the rule is enhanced by s 75A(10) of the Supreme Court Act which empowers this Court to make any finding which ought to have been made, and to give any judgment or make any order which ought to have been given or made. This displaces the "basal distinction" between the role of the court and the function of the jury to which Dixon CJ referred in this context in Balenzuela v De Gail (1959) 101 CLR 226 at 235-236; [1959] HCA 1 when contrasting the Judicature legislation predecessor to r 51.53 and its common law antecedent and noting that a retrial could not be avoided by the court making findings which usurped the jury's role: "it is not for the court to proceed to inquire into the facts of the case and form a conclusion as to what the jury would or should have done had the trial proceeded entirely in conformity with law and without any misdirection or misreception or erroneous rejection of evidence."
Now that r 51.53 applies and this Court is empowered to make findings pursuant to s 75A(10), retrials may be avoided in a wider range of circumstances than was the case in Balenzuela.
In order to resolve the parties' submissions as to whether there must be a retrial, it is necessary to identify the issues which divided them.
Mr Cavanagh's claim was for modified common law damages under Part 5 of the Workers Compensation Act 1987 (NSW). The respondent was not permitted save with leave to file a defence that was materially different from any defence served on the claimant in response to the claimant's pre-filing statement, nor to rely on evidence which had not been disclosed in its pre-filing statement: Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318(1)(b) and (d). Leave may only be given if, relevantly, the material was not reasonably available when the pre-filing defence was served: s 318(2)(a). At trial, evidence sought to be adduced by the defendant was rejected on the basis of this section.
However, the defendant's pre-filing statement seems not to have been included in the appeal books. The defence put Mr Cavanagh to proof on the conduct giving rise to the alleged breach of duty, denied breach, positively alleged that his injuries were the result of his own negligence and/or contributory negligence, denied that he had sustained losses as alleged, pleaded the workers compensation benefits which had been paid, said that the claim had not been made within time, and "also place[d] reliance on Sections 151E, 151G, 151H, 151I, 151IA, 151J, 151L 151N and 151O of the Workers Compensation Act". At least some of the pleaded defences were unavailable. For example, s 151H precludes damages unless there is a degree of permanent impairment of at least 15%. But Mr Cavanagh had been conclusively assessed at 27% permanent impairment, so s 151H could never be a defence. Further, s 151I imposes a cap for past and future loss of earnings by reference to an amount determined under s 34 of the Act. But Mr Cavanagh's weekly earnings were at all times below that cap. His earnings were in the order of $804 while the statutory cap was in the order of $1800 - $2200 over most of the period from 2012 to date, and at all times exceeded his actual earnings. Thus s 151I could never be a defence. The same could be said of some of the other sections relied on in the defence.
The real matters in issue are not identified by the defence, which has the appearance of being formulaic, but by how the trial was run. That approach accords with the precept in s 56 of the Civil Procedure Act 2005 (NSW), made directly applicable by s 56(2) to the power to order a new trial. It also accords with the fact that UCPR r 51.53 turns on a substantial wrong or miscarriage.
At the conclusion of the evidence, the defendant supplied written submissions, and made brief oral submissions. The written submissions advanced a single defence, namely, that Mr Cavanagh was charged with laying down a safe system of work, that Mr Cavanagh had the "full discretion, control and ability to raise any issues or concerns on a daily basis" but failed to do so, as a result of which the injury of which he complains "was caused solely by his own fault".
That defence was rejected by the primary judge: "Mr Cavanagh did not complete high school, and had worked only as a bowling club greenkeeper before his employment by the defendant. He had no training in ergonomics or risk assessment, and was unfamiliar with relevant literature."
The only fallback defence at trial was contributory negligence. But this was advanced on the same basis as the primary defence: "Relying on the same evidence and the matters referred to above in the context of liability, this was not a case of mere inadvertence or inattention. The plaintiff, as the racecourse manager was responsible for the system of work which [he] had devised and implemented for years. If the plaintiff's argument now is that he was in fact not qualified or experienced to be entrusted with the responsibilities that he had been by the defendant then he clearly failed to inform his employer of that fact. He continued to represent to the defendant that he was in fact qualified, experienced and competent to perform his role. The defendant was entitled to rely on these representations. This is therefore not a case of mere inadvertence or inattention. It was reckless and negligent on the part of the plaintiff for which there must be a reduction on account of contributory negligence."
The respondent said there should be a "sizeable" finding of contributory negligence, and submitted that there was power to reduce liability by 100%. This defence was not explicitly addressed by the primary judge. However, it should be regarded as being dismissed on the same basis as the respondent's other defence. It was based on the same proposition, rejected by the primary judge. Further, that reading of the reasons is consistent with the notional finding of damages by the primary judge, undiscounted for contributory negligence. Once again, there was no challenge by the respondent to the notional assessment of damages or the absence of any deduction for contributory negligence.
Thus the only factual issue raised by the defendant at the conclusion of the trial was that on which it failed. That is not to imply that there were other issues available to be raised. This was a case where the issues were circumscribed by the agreement between the parties and the assessment which had occurred under the workers compensation regime.
There is thus a powerful case for entering judgment in the appellant's favour, in the undisputed amount determined contingently by the trial judge. If as the respondent contends there should be a retrial, it is for the respondent to identify "some substantial wrong or miscarriage". But the respondent's submissions on this issue were pitched at a level of generality. It was said: "This Court would have to draw conclusions and speculate as to what was or wasn't said or demonstrated, and so in those circumstances it would be inappropriate because there is a lot missing, and that is in terms of there's no direction on the transcript as to what was demonstrated, et cetera, so there's insufficient for this Court to be involved in that fact finding process."
I do not accept the submission. I agree that if it were necessary to make a specific finding as to what Mr Cavanagh demonstrated in the witness box, then this Court could not perform that task and a retrial would be necessary. But no such finding need be made. It may be timely to remind counsel, and trial judges, that where a demonstration is given by a witness, it is useful to record, for the transcript, agreement (or different perceptions) of what was demonstrated.
Mr Cavanagh's evidence established that performing one of the aspects of his employment required him repeatedly to twist his neck to monitor and adjust the height of the leveller. The gravamen of his evidence was that it was not an occasional backwards glance, but repeated, sustained twisting of his neck. It does not matter whether doing so is described as "constantly" (a term which itself is far from being free from ambiguity). It is plainly foreseeable that a man who operates a machine in the course of his employment involving repetitive, sustained twisting of his neck may foreseeably by doing so aggravate, accelerate or exacerbate his cervical spine condition. There was uncontroversial evidence that "[r]epetitive work particularly in awkward or constrained postures (eg neck flexed more than 20° for more than 2/3 of working time) or if associated with force requirements were found to be significantly associated with the development of rotator cuff syndrome". Foreseeability was not raised by the defendant at trial (that may be because of the effect of s 318, but whether that is so cannot be determined on the material available to this Court). Plainly enough, there is the potential for the harm to be serious and indeed incapacitating.
It was not reasonable for the employer to do nothing in those circumstances. A reasonable response by his employer to the foreseeable risk of harm posed by Mr Cavanagh's employment would have been not to permit that to occur for many years, but instead to have installed a mirror, or perhaps a rear-vision camera, or use a different tractor with a swivel seat. Each of those measures had been particularised in the statement of claim. There was uncontested evidence in the plaintiff's case that "[s]tudies into tractor and plant operating have also noted 'body stress injuries' with warnings regarding problems with seating and the plant controls", which identified as controls that "seats are in good condition and fit [for] purpose eg can swivel if needed" and "adjust mirrors to give good vision and reduce the need to look backwards". Ms Weigall's opinion, which was not challenged, was that a reasonable response would have included "fitting devices to the tractors to allow easier rear vision including through rear view cameras and mirrors (eg see www.hiddencamera.com.au for tractor camera kits)" and "using a different tractor that allowed a swivel seat to aid posture".
In those circumstances, there is no occasion for remitter to resolve the issue of liability, just as there was no occasion to remit for that purpose in Lloyd v Thornbury. Damages are agreed. The respondent lost on its only substantial defence, and that carried with it the unavailability of its partial defence of contributory negligence. No attempt was made to challenge the rejection of those parts of the respondent's case. The Court should find, on the basis of the uncontroversial evidence at trial, that there was a foreseeable risk of harm, and that a reasonable response to that risk was to take one or more of the steps summarised above, rather than doing nothing. It also follows that a notice of contention which was filed at the hearing, to the effect that there was no breach of duty because no further precautions were required of the respondent, is not made out.
The appropriate orders are that the appeal be allowed with costs, the judgment and orders entered on 17 June 2021 be set aside, and in lieu thereof there be judgment for the plaintiff with costs. The calculation of interest, and (perhaps) the adjustment for workers compensation payments, will impact upon the amount of the judgment to which Mr Cavanagh is entitled. The parties should be permitted to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, so as to enable this Court to enter judgment in the correct particular amount.
The Court's formal orders are:
Appeal allowed with costs.
Set aside the judgment and orders made by the District Court on 17 June 2021, and in lieu thereof enter judgment for the plaintiff with costs.
Direct the parties to supply within 14 days any agreed further orders, or in default of agreement, the orders for which they contend, and short submissions in support, as to the form and quantum of the judgment in Mr Cavanagh's favour.
SIMPSON AJA: I have had the advantage of reading in draft the judgment of Leeming JA. I agree with the orders proposed by his Honour, and, generally, with his Honour's reasons. Except to the extent that it is necessary to do so for the purpose of the following observations I do not propose to restate the facts.
Specifically, I agree with Leeming JA that the reasons given were inadequate to discharge the function for which reasons for judgments are required. The reasons were inadequate, in my opinion, in two respects: they failed to show that the primary judge had grappled with the evidence and they failed to record specific findings of fact necessary for the outcome of the proceedings.
The primary judge's conclusion, as I understand it, was that Mr Cavanagh's claim failed because he was unable to establish one element of the cause of action on which he sued, that being foreseeability.
As I read the judgment, three paragraphs give some idea of the reasoning of the primary judge. They are: "14. Accepting the outer limit of Mr Cavanagh's estimation, that is, that he turned once each minute, for a duration of five or six seconds, the question then becomes whether such frequency created a reasonably foreseeable risk of injury. Given sufficient imagination and pessimism everything is foreseeable. … 17. There is no evidence that it was well known in industry that a movement repeated once every minute created a foreseeable risk of musculoskeletal injury. … 19. I am unable to find that Mr Cavanagh's work created a foreseeable risk of injury sufficient to impose a duty upon his employer to take precautions against that risk." (emphasis in original)
It is apparent from the transcript of proceedings, and the judgment, that undue emphasis was placed on the precise frequency with which Mr Cavanagh was required to turn his head and shoulders. That the repetitive movement caused the injury was foreclosed by the agreement in the Workers Compensation Commission.
Foreseeability was not an issue raised by the respondent. Foreseeability of injury caused by repetitive movement did not depend on whether Mr Cavanagh was required to turn his head and shoulders once per minute, or five, or ten, times per minute. It was sufficient that, for several hours each day, Mr Cavanagh's work on the tractor required him repeatedly to turn his head and upper body so that he could maintain the correct level of the leveller, while at the same time ensuring that the tractor remained on the track. That inevitably involved repeated twisting movements. That such movements create a risk of injury is well known in industry, in the wider community, and to the judiciary. Contrary to the apparent view of the primary judge reflected in [17], specific evidence to that effect was not necessary. Judges who deal with cases of personal injury are to be credited with a modicum of understanding of the realities of the numerous ways in which injury may be caused. It should not be necessary, for example, to adduce evidence to establish that a wet or greasy floor may cause a pedestrian to slip. So much was recognised by the High Court as long ago as 1963 when the Court proceeded on the basis that slippery conditions give rise to a risk of injury: Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4: see, particularly, the introductory paragraph in the judgment of Kitto J. Equally, in 2021, it was hardly necessary for a plaintiff to adduce evidence to establish that repetitive movement can cause injury, or that that was known in industry.
These considerations no doubt explain why no issue of foreseeability was raised on behalf of the respondent. It was, in my opinion, plainly foreseeable that, if Mr Cavanagh were required repeatedly to swivel his head and shoulders, he was at risk of injury. In any event, the report of Ms Weigall established, in general terms, that repetitive movement can (and was known to) cause injury. It is true that Ms Weigall's report proceeded on a history given to her by Mr Cavanagh that his work required him to turn his head and upper body about 160° to the right, "every few seconds". But her opinions were not confined to that degree of frequency.
Ms Weigall did not directly address the question of foreseeability. She did, however, identify legislative provisions (Occupational Health and Safety Act 2000 (NSW) and the Occupational Health and Safety Regulation 2001 (both now repealed)), which required employers, for the purposes of risk management, to identify hazards arising from the work and the workplace, including, specifically, hazards arising from: "… manual handling (including the potential for occupational overuse injuries)" (Cl 9(2)(f)).
Ms Weigall also spelled out in some detail measures that would have been available to avert the risk of the injury Mr Cavanagh in fact suffered.
A fair reading of Ms Weigall's report would have left no doubt that the risk of the injury that Mr Cavanagh suffered was foreseeable. That did not depend on the precise frequency of the movements.
The respondent sought to defend the claim only on the basis that Mr Cavanagh bore the responsibility for his own injury. That defence was properly rejected.
On the view I take, the only defence raised on behalf of the respondent having failed, and the question of foreseeability being determined in favour of Mr Cavanagh, and there being no challenge to the contingent assessment of damages, the correct approach of this Court is that proposed by Leeming JA.
I therefore agree with the orders proposed by his Honour.
N ADAMS J: I agree with Leeming JA and Simpson AJA.

Amendments 24 August 2022 - at [39] "r 23(1)" replaced with "r 16(1) (later renumbered as r 23(1))" 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: 24 August 2022

Occupational Health and Safety Act 2000(NSW)

Occupational Health and Safety Regulation 2001(NSW)

(Occupational Health and Safety Act 2000(NSW)

(2020) 102 NSWLR 269

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