239 CLR 420
Amaca Pty Ltd v State of New South Wales [2003] HCA 44
77 ALJR 1509
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
75 NSWLR 649
Chapman v Hearse [1961] HCA 46
106 CLR 112
Chappel v Hart [1998] HCA 55
Source
Original judgment source is linked above.
Catchwords
239 CLR 420
Amaca Pty Ltd v State of New South Wales [2003] HCA 4477 ALJR 1509
British Fame (Owners) v Macgregor (Owners) [1943] AC 197
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 25875 NSWLR 649
Chapman v Hearse [1961] HCA 46106 CLR 112
Chappel v Hart [1998] HCA 55195 CLR 232
Czatyrko v Edith Cowan University [2005] HCA 1479 ALJR 839
House v The King [1936] HCA 4055 CLR 499
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11243 CLR 361
Leighton Contractors Pty Ltd v Fox [2009] HCA 35240 CLR 1
Mikaera v Newman Transport Pty Ltd [2013] NSWCA 46465 MVR 578
Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460
Plexvon Pty Ltd (in liq) v Brophy [2006] NSWCA 304
158 IR 221
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
59 ALJR 492
Purkess v Crittenden [1965] HCA 35
114 CLR 164
R v Foster
Ex parte Commonwealth Life (Amalgamated) Assurance Ltd [1952] HCA 10
85 CLR 138
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd [2001] NSWCA 461
53 NSWLR 626
Rosenberg v Percival [2001] HCA 18
181 CLR 201
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1
160 CLR 16
Strong v Woolworths Ltd [2012] HCA 5
246 CLR 182
Sydney Water Corporation v Abramovic [2007] NSWCA 248
250 CLR 375
Wooby v Australian Postal Corporation [2013] NSWCA 183
Judgment (16 paragraphs)
[1]
Solicitors:
Mills Oakley Lawyers (Appellant)
Slater & Gordon Lawyers (Respondent)
File Number(s): CA 2014/88884
Decision under appeal Court or tribunal: District Court
Jurisdiction: New South Wales
Date of Decision: 26 February 2014
Before: Charteris DCJ
File Number(s): DC 2011/297830
[2]
[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.]
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 21 September 2008 the respondent, Mr Roger Greeney, injured his back whilst working as a roller driver at a remote location in outback New South Wales maintaining and repairing roads. Mr Greeney was employed by Greg Wilkins Industries Pty Ltd ("GWI") which was engaged by the appellant, Central Darling Shire Council ("Council"), to perform roadwork in that location. Mr Greeney was injured while attempting to couple a fuel tanker to the rear of a caravan after uncoupling it from the rear of a four-wheel drive vehicle. GWI owned all three vehicles, and the roller. Mr Bob Hocking was the only Council employee present at the time. No other employee of GWI was there, although Mr Hocking had been employed by GWI in the past.
Mr Greeney commenced proceedings against the Council in the District Court, claiming that he was entitled to damages by reason of the Council's negligence in connection with the incident. By judgment of 26 February 2014 Charteris DCJ found in Mr Greeney's favour and assessed damages at $726,106. His Honour apportioned responsibility for Mr Greeney's injury as 60% to the Council and 40% to his employer, GWI, with the result that after application of s 151Z of the Workers Compensation Act 1987 (NSW) Mr Greeney's damages were reduced to the sum of $435,664.
On appeal, the Council challenged the primary judge's findings on duty of care, breach of duty, causation, and damages.
Held, dismissing the appeal (per Macfarlan JA; Sackville AJA and Beech-Jones agreeing):
The primary judge did not err in finding that the Council owed a duty of care to Mr Greeney.
Leighton Contractors v Fox (2009) 240 CLR 1 and other authorities considered.
The primary judge did not err in finding that the Council had breached its duty to Mr Greeney, his Honour having found that there were steps that the Council could have taken to eliminate or minimise the foreseeable risk of injury, that the burden of taking them was not great and that a reasonable person in the Council's position would have taken the steps.
The primary judge did not err in finding that causation had been established. Correct approach to causation discussed.
Rosenberg v Percival (2001) 205 CLR 434 and other authorities referred to.
The primary judge's apportionment of damages was not so unreasonable that it warranted appellant intervention.
The primary judge did not err in his assessment of damages.
[4]
Judgment
MACFARLAN JA: On 21 September 2008 the respondent, Mr Roger Greeney, injured his back whilst working as a roller driver at a remote location in outback New South Wales maintaining and repairing roads. Mr Greeney was employed by Greg Wilkins Industries Pty Ltd ("GWI") which was engaged by the appellant, Central Darling Shire Council ("Council"), to perform roadwork in that location. Mr Greeney was injured while attempting to couple a fuel tanker to the rear of a caravan after uncoupling it from the rear of a four-wheel drive vehicle. GWI owned all three vehicles, and the roller. Mr Bob Hocking was the only Council employee present at the time. No other employee of GWI was there, however Mr Hocking had been employed by GWI in the past.
Mr Greeney commenced proceedings against the Council in the District Court, claiming that he was entitled to damages by reason of the Council's negligence in connection with the incident. By judgment of 26 February 2014 Charteris DCJ found in Mr Greeney's favour and assessed damages at $726,106. His Honour apportioned responsibility for Mr Greeney's injury as 60% to the Council and 40% to his employer, GWI, with the result that after application of s 151Z of the Workers Compensation Act 1987 (NSW) Mr Greeney's damages were reduced to the sum of $435,664.
On appeal, the Council challenges the primary judge's findings on duty of care, breach of duty, causation, and damages.
For the reasons given below, I consider that each of these challenges fails and the Council's appeal should be dismissed.
[5]
THE FACTUAL CIRCUMSTANCES
Mr Greeney was the only lay witness to give evidence at the hearing at first instance. Various medical reports were tendered, as was a report of Mr Bill Contoyannis who is a consulting mechanical engineer with expertise in the functioning of machines and structures. None of the experts were cross-examined. In oral evidence in chief, Mr Greeney adopted as correct the description of events that he had given to Mr Contoyannis and that Mr Contoyannis had recorded in his report. The primary judge accepted Mr Greeney's evidence.
The following description of the factual circumstances is taken from the primary judgment, Mr Greeney's oral evidence and Mr Contoyannis' description of the instructions given to him.
Under a contract, the detailed terms of which were not the subject of evidence, GWI provided to the Council a road roller and driver for it, with the roller to be operated as directed by the Council. Due to the remote location of the work, GWI also provided a caravan for the driver, Mr Greeney, to sleep in, a fuel tanker and a four-wheel drive vehicle. Mr Hocking was on site to direct what work was to be done and where. This involved him directing when the camp at which the workers, including Mr Greeney, slept overnight was to be moved. Mr Hocking sometimes slept at the camp but did not do so on the night before Mr Greeney's injury was suffered. When the campsite had to be changed it was, and had for some time been, Mr Greeney's practice to move the four GWI vehicles in one trip by coupling them together, with the roller at the front, followed by the four-wheel drive vehicle, the caravan and the fuel tanker. Mr Hocking was aware of this practice and the primary judge found that he in fact directed that the move be effected in this fashion.
While road work was being undertaken, the fuel tanker was attached to the four-wheel drive vehicle. It was only put behind the caravan when the camp was moved, which occurred every 2 or 3 days. It can be inferred that it was not possible to couple the caravan to the rear of the fuel tanker (and thereby avoid the need to uncouple the fuel tanker from the four-wheel drive vehicle and couple it to the caravan), probably because the fuel tanker did not have a coupling device at its rear.
The fuel tanker was a trailer with only two wheels, one on either side of the tanker at about its middle. It had a capacity of about 1,260 litres and contained 1,100 to 1,200 litres on the day Mr Greeney was injured. The tanker was designed to rest at its front end on a small "jockey" wheel. The coupling mechanism there had a handle which was designed, when turned, to raise or lower the trailer to facilitate the tanker being coupled to the ball of a coupling device at the rear of another vehicle without the front end of the tanker having to be lifted manually.
[6]
THE EXPERT REPORT
In his expert report, Mr Contoyannis said that because the fuel tanker had two wheels on a single axle, its weight, which was estimated to be in excess of 1,200 kilograms, was likely to require a large force to be exerted at its front-end coupling to lift it. According to Mr Contoyannis, the absence of the jockey wheel increased the manual handling involved and once the prongs with their vertical tube fell out of the pipe connecting them to the trailer, all of the weight would have been transferred to Mr Greeney, placing him at risk of injury.
[7]
THE JUDGMENT AT FIRST INSTANCE
The primary judge concluded that the Council, through Mr Hocking, knew or ought to have known that there was a not insignificant risk that the deficient coupling on the fuel tanker (being the absence of the jockey wheel) could cause injury to Mr Greeney. His Honour concluded in relation to s 5B(2) of the Civil Liability Act 2005 (NSW):
"It was only a matter of time before further defects would declare themselves in the structure. There was always the potentiality of serious harm should the structure deteriorate further and there be any sudden collapse. The burden of taking the precautions to avoid the risk of harm was not great. The defendant could have insisted that the employer, GWI, provide to the plaintiff equipment that was not defective" (Judgment p 27).
His Honour also said that the grader driver could have assisted and that the Council had full control of the work system, including the moving of the camp. He found that the use of the four vehicle road train to move camp "was at the defendant's request and for the defendant's financial advantage. The plaintiff was not happy to move all the vehicles at once, but Mr Hocking on behalf of the shire instructed him to do so" (Judgment p 29). He also found that this "system in place for moving the camp" was unsafe in the absence of the jockey wheel and that the Council had the capacity to insist that GWI repair the jockey wheel but that it did not do so (Judgment p 30).
His Honour continued:
" … once the jockey wheel was not present, the structure was compromised and the likelihood was that the structural deterioration would continue. A reasonable response was a simple response: replace the jockey wheel … [i]n my view the risk entails not only the absence of the jockey wheel, but the risk is the directing of the plaintiff to move the camp knowing the jockey wheel was not there. The risk that eventuated was created by the direction to the plaintiff to move camp in the knowledge that the jockey wheel structure was defective. Once it was missing the load bearing was taken by the forks rather than the jockey wheel itself. In my view the loss of the jockey wheel led to the failure of the forks and their collapse" (Judgment pp 30-32).
His Honour found that the Council was aware of the missing jockey wheel, that it was clearly foreseeable that the coupling structure was compromised by its absence and that "[o]n the day of the accident the defendant directed the plaintiff to move camp, knowing of that defect and knowing that it was a potential risk to the plaintiff's safety" (Judgment p 34). He held that "alternative means were clearly available including the repair of the defective equipment" (ibid) and obtaining the assistance of the grader driver (ibid).
[8]
Relevant legal principles
If Mr Greeney had been a Council employee, the Council would have owed to him a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury, including an obligation to take reasonable care to avoid real risks of injury "by devising a method of operation for the performance of the task that eliminate[d] the risk, or by the provision of adequate safeguards" (Czyatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]).
The law does not however impose a duty of that type upon a principal in favour of independent contractors, or employees of independent contractors such as Mr Greeney. In Leighton Contractors Pty Ltd v Fox [2009] HCA 35; 240 CLR 1 at [20], the High Court approved the following observations of Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (at 47-48) as to a circumstance that may impose a duty of care on the principal, albeit a more limited one than that owed by an employer to its employee:
" … An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v. Heyman … and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury" (citation omitted).
In Stevens v Brodbribb a sawmiller engaged contractors to fell and transport trees. Whilst the sawmiller's employee had general supervision over the operations, he exercised no control over the manner in which the contractors carried out their tasks. Nevertheless, the contractors' tasks were interdependent and required coordination and the sawmiller therefore owed them a duty of care to prescribe a safe work system. That is not the present case but there is no reason to read Stevens v Brodbribb as exhaustively stating the circumstances in which a duty of care more limited than that owed by an employer to an employee may arise.
[9]
RESOLUTION OF THE APPEAL
Central to the primary judge's reasoning that the Council was liable to Mr Greeney was that Mr Hocking, on behalf of the Council, gave a direction to Mr Greeney "to move the camp knowing the jockey wheel was not there" and that therefore "the jockey wheel structure was defective" (p 31 quoted at [20] above). Involved in his reasoning was also his Honour's earlier finding (see [7] above) that Mr Hocking had directed Mr Greeney to effect the move by coupling GWI's vehicles into a four vehicle train which would require a decoupling and a recoupling of the fuel tanker's defective coupling structure. His Honour's finding that Mr Hocking had directed that the move occur in this manner was justified by Mr Greeney's unchallenged evidence that he had "whinged" to Mr Hocking about the need to do it that way (see [15] above) but in any event Mr Hocking's undoubted knowledge that that is how it would occur would have been sufficient to support the reasoning.
Also integral to his Honour's reasoning was the foreseeability to Mr Hocking of injury to Mr Greeney. Certainly, Mr Hocking knew that his direction to move camp would require the fuel tanker's front coupling to be used, that that mechanism was designed to minimise the lifting required to effect recoupling, that lifting the coupling mechanism would involve Mr Greeney bearing a very heavy load, that Mr Greeney would and did undertake the task without assistance (Mr Hocking having observed the incident) and that the jockey wheel was missing.
The Council argued on appeal that these matters did not justify the primary judge's conclusion, in the course of considering whether there was a duty of care, that there was a "not insignificant" foreseeable risk of injury to Mr Greeney and, in the course of considering breach of duty, that the risk of injury was such that a reasonable person in the Council's position would have taken steps to reduce or eliminate it (see [18] above). The Council argued that there was no basis for concluding that it knew or should have known that the accident would occur in the way that it did. On Mr Greeney's evidence, the accident followed from the tube that was attached to the prongs falling down and out of the vertical pipe attached to the tanker, resulting in the prongs' unavailability to support the fuel tanker's heavy front end that Mr Greeney was attempting to lift and hold up. The Council submitted that it had not been shown that the defective wheel had anything to do with this occurring and that the primary judge's conclusion that "once the jockey wheel was not present, the structure was compromised and the likelihood was that the structural deterioration would continue" (see [20] above) was not warranted by the expert evidence of Mr Contoyannis or by common sense.
[10]
BREACH OF DUTY
My conclusion in relation to the duty of care issue indicated that the primary judge was justified in concluding that it was, or should have been, foreseeable to Mr Hocking (on behalf of the Council) that his direction to move camp when the jockey wheel was absent involved a not insignificant risk of Mr Greeney suffering serious injury. The primary judge was conscious of the terms of s 5B(2) of the Civil Liability Act and therefore of the evaluative balancing exercise that it required. Having further found that precautions could have been taken to eliminate or minimise the risk of injury, that the burden of taking them was not great and that a reasonable person in the Council's position would have taken the precautions (Judgment [27]), there was no error in his Honour's conclusion that the Council had breached its duty to Mr Greeney.
One of the precautions that his Honour identified was obtaining the assistance of the person employed as the grader driver. There was no error in this finding. The grader driver, Mr Hocking himself and "some other persons" had assisted Mr Greeney to perform the relevant task on a number of occasions in the past (see [19] above). There were clearly other workers involved in the road grading and maintenance job and there was no basis for inferring that assistance available in the past would not have been made available on the relevant occasion, albeit that it may have involved some time delay which might have been to the Council's financial disadvantage.
His Honour also identified the possibility that the Council could have required GWI to supply a wheel to render the fuel tanker safe to be used in the manner intended by its designers. The Council argued on appeal that there was no evidence that it had any right to require this under its contract with GWI. However, in the absence of the Council (which must have known of the details) leading evidence of the contract's content, it can be inferred as a matter of common sense that GWI was obliged under it, either expressly or impliedly, to supply a road roller and ancillary equipment (including a fuel tanker) that was fit for safe use in remote areas.
Another step that Mr Greeney contended on appeal (without objection from the Council) could have been taken by the Council was to permit the move of the camp to occur in two steps, that is, two vehicles at a time. This would have rendered it unnecessary to couple the fuel tanker to the caravan. Mr Hocking presumably used a car to travel to the works in the remote locations. This could, if necessary, have been used to ferry Mr Greeney back after driving two of the vehicles to the new location. A reasonable person in the Council's position would have taken this, or one of the steps identified by his Honour, to reduce or eliminate the risk of injury to Mr Greeney.
[11]
CAUSATION
The primary judge referred to the requirements of s 5D of the Civil Liability Act that the defendant's negligence be a necessary condition of the occurrence of the plaintiff's harm and that it be appropriate for the scope of the defendant's liability to extend to the harm so caused. Whilst his Honour did not (as he should have) give reasons for his conclusion that the Council's breach caused Mr Greeney's injury, the conclusion was warranted by the facts that his Honour found. His Honour found that Mr Hocking's direction to move camp in the knowledge that it would involve use of the defective coupling mechanism was negligent and constituted a breach of the Council's duty of care to Mr Greeney. If the negligence had not occurred, and the direction had therefore not been given, the incident and injury in question would have been avoided. The Council's negligence was thus a "necessary condition of the harm" and there is no reason why, in accordance with s 5D(1)(b), its liability should not extend to the harm so caused (as to the latter, compare Wallace v Kam [2013] HCA 19; 250 CLR 375 at [37]).
In my view, this is the way in which the issue of causation should be approached in this case. That is, because the breach was the taking of a positive step (Mr Hocking's direction to move camp), the relevant question is whether Mr Greeney would have suffered injury if the act had not occurred. The present case is different from the warning cases (such as Chappel v Hart [1998] HCA 55; 195 CLR 232; Rosenberg v Percival and Wallace v Kam). Those cases involved positive conduct of the defendants in conducting medical procedures but it was the plaintiffs that permitted those procedures to occur. The causation question there was whether the plaintiffs would have made the same decision if advised of particular risks. Here, Mr Greeney had no choice but to comply with Mr Hocking's direction, otherwise he would have lost his job (see [14] above). The Council's negligence was therefore in the giving of the direction, not in the failure to give a warning.
If (contrary to my view) the issue of causation in this case should be addressed by asking whether the injury would still have been suffered if one or more of the various precautions that a reasonable person in the Council's position might have taken before issuing the direction had in fact been taken, the result is nevertheless the same.
[12]
APPORTIONMENT OF RESPONSIBILITY BETWEEN THE COUNCIL AND GWI
In considering apportionment, the primary judge referred to significant features of the case bearing upon the respective responsibilities of GWI and the Council. On the one hand, GWI had had ample notice of the defect and chose, likely for financial reasons, not to remedy it, thereby breaching its non-delegable duty to Mr Greeney. On the other hand, the Council, unlike GWI, was represented on site and had day to day control and supervision of Mr Greeney through its representative Mr Hocking. Moreover it gave the direction in question.
The Council contended on appeal that the primary judge had misdirected himself in this context by assuming that the Council had a right under its contract with GWI to require it to render the fuel tanker safe by supplying the missing wheel. For reasons given above (see [22]), I reject this argument.
The Council further submitted that the primary judge erred in describing the Council as having "day-to-day control of, and supervision of, [Mr Greeney]" (Respondent's Amended Written Submissions [26]). It asserted that the Council had no such control at the campsite. However, all that is material in this context is that Mr Hocking had control of the location of the campsite and was in a position to, and did, give the direction for movement to Mr Greeney (at a time when Mr Hocking should have appreciated that compliance would involve a not insignificant risk of injury to Mr Greeney).
Having referred to the availability (presumably to both the Council and GWI) of "ready alternatives" to obviate the risk, his Honour concluded that responsibility should be apportioned 60% to the Council and 40% to GWI (Judgment p 35).
The applicable principles were stated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at 494 as follows:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination" (citations omitted).
[13]
The judgment at first instance
Mr Greeney was 50 years old when the accident occurred on 21 September 2008. At the time of the trial he lived with his partner in a caravan at the Menindee Lakes, about 100 kilometres to the east of Broken Hill. He left school without obtaining his School Certificate and his employment thereafter mainly involved physical activities. When aged in his 20s, he injured his back whilst working as a truck driver. He was on a disability pension for some two to three years, and in the 1990s he started working for GWI, first casually and then full-time for five or six years before the 2008 accident. Until mid-2013, he had been receiving workers' compensation in respect of the 2008 accident, having intended to apply for a disability pension in the future.
He sought medical advice following the 2008 accident and was advised against surgery. The primary judge commented that Mr Greeney does not think that he would be fit for a full day's work but thinks that he could work for a shorter period (Judgment p 14).
Shortly before the accident, Mr Greeney was diagnosed with Type 2 diabetes for which he receives medication. The primary judge found that he lost his driver's licence "because of the continuing advance of his diabetes" (ibid).
His Honour described the medical evidence before him. This included MRI scans and reports of orthopaedic surgeons, endocrinologists and rehabilitation specialists. Without giving reasons, the primary judge stated that he accepted the evidence of the orthopaedic surgeon (Dr Daniel O'Keefe) and endocrinologist (Dr John Greenaway) qualified by Mr Greeney's representatives and concluded that Mr Greeney "suffered an injury to the L5/S1 disc area, it being a protrusion" and that "there are hard neurological signs relating to symptoms into legs" (Judgment p 35).
His Honour continued:
"I next assess damages. Taking into account the conclusions I have made about the injury and the continuing disability in a person who, effectively at aged 50, has had his earning capacity brought to an end, non-economic loss should amount to 30%, namely $127,000. I am not satisfied that there has been any aggravation or acceleration of the diabetic condition occasioned by the inactivity of the plaintiff. That onus has not been discharged" (Judgment p 36).
His Honour then assessed past economic loss for an initial period at $900 per week and then later at $950 per week net of tax, totalling $253,800, plus loss of superannuation entitlement of $27,918.
[14]
Resolution of the damages appeal
Whilst aged in his 20s, Mr Greeney suffered a back injury that continues to affect him. It did not however prevent him from working full-time in a job which, at least at times, involved him lifting the considerable weight of the front of the fuel tanker. He had held his job with GWI for some years and there was no basis in the evidence for concluding that this pre-existing back injury would, if he had not been injured in 2008, have interfered with his continuing employment.
The issue raised by the Council was whether Mr Greeney's undoubted inability to work after the 2008 accident was due to his diabetes, that was diagnosed shortly before the accident, or was due to the accident itself.
Dr Greenaway, reported that Mr Greeney's diabetes had not caused any impairment of, or restrictions on, his physical capabilities and activities. He thus took the view that "the fundamental whole body impairment and prognosis at the moment relates to the spinal situation" (First Report, p 3). Consistently with this view, Dr O'Keefe concluded that Mr Greeney had a spinal injury described as "[s]ymptomatic L5/S1 disc protrusion with sciatica and hard neurological signs not amenable to surgical treatment" (First Report, p 3). The Council submitted that Dr O'Keefe's report should be disregarded because he reported upon the basis that, subject to one presently irrelevant qualification, Mr Greeney's back was uninjured prior to the 2008 accident. I reject this submission because whilst Mr Greeney clearly did have a continuing pre-existing back issue, it had not been serious enough to interfere with his full-time employment for some years.
The Council's specialist in orthopaedics and rehabilitation, Professor Frederick Ehrlich, took the view that Mr Greeney's lumbar CT and MRI scans showed "little abnormality other than multi level disc degenerative changes and spondylotic features" (Report, p 3). It appears however that Dr Ehrlich was not provided with the Medical Imaging Report of March 2011 which said that "[a]t the L4/5 level, a more extensive left postero-lateral disc protrusion is noted. This is causing significant compression of the exiting left nerve root (p 1)". Dr O'Keefe's access to this report provided a proper foundation for his conclusions and for the primary judge's preference for Dr O'Keefe's views over those of Dr Ehrlich.
[15]
ORDER
As the Council's grounds of appeal in relation to both liability and quantum of damages have failed, its appeal should be dismissed with costs.
SACKVILLE AJA: I agree with the orders proposed by Macfarlan JA and with his Honour's reasons.
In my view, the apportionment of 60% responsibility to the Council and 40% to GWI as Mr Greeney's employer is at the very border of the range. One consequence of s 151Z of the Workers Compensation Act 1987 (NSW) is that apportionment of responsibility between the employer and a third party tortfeasor takes place in the absence of the employer. This is the position here. On the uncontradicted evidence before the primary Judge, Mr Greeney made repeated complaints about the absence of the jockey wheel, all of which seem to have been ignored. The failure of the employer to respond to Mr Greeney's complaints suggests a high level of culpability.
Nonetheless, for the reasons given by Macfarlan JA, in the absence of an error of principle by the primary Judge, this Court should not interfere with the primary Judge's apportionment.
BEECH-JONES J: I agree with Macfarlan JA.
[16]
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: 16 March 2015
The jockey wheel on the trailer had however been missing for about 12 months. Consequently, the weight of the tanker rested at its front on two pieces of metal, described in the evidence as "prongs" or "forks", between which the jockey wheel had previously been held on an axle. The prongs comprised two approximately rectangular pieces of metal connected to an upright tube which was connected to the tanker by its location inside a vertical pipe extending down from a fitting on the tanker's coupling mechanism. The prongs were at an angle to both the tube and the ground and had holes at their ends into which the axle supporting the jockey wheel was designed to fit. Without the wheel, the ends of the prongs rested on the ground, somewhat lower than they would have been if there had been a wheel between them. Because the tanker's coupling mechanism was lower than the caravan's coupling, and the winding mechanism was incapable of fully bridging the gap, Mr Greeney had to lift the tanker's coupling (and accordingly take the weight of the front end of the tanker) to connect it to the caravan. This would have been necessary even if the jockey wheel had been present but the distance to be lifted was slightly greater as a result of the absence of the wheel. Due to the weight of the tanker and its contents, considerable effort was required to lift the tanker's front end.
Before lifting the front of the tanker, it was necessary for Mr Greeney to manoeuvre the back of the four-wheel drive vehicle, the front of the tanker and the back of the caravan as close together as possible to minimise the distance over which he needed to lift the front end of the tanker. If present, the jockey wheel would have assisted in this process. Mr Contoyannis described the jockey wheel's purpose as being "to prevent the fuel tank trailer dropping lower and [to] allow [Mr Greeney] to manoeuvre it and attempt to raise it onto the caravan ball" (Report, [7.8]).
Mr Contoyannis recorded as follows Mr Greeney's description of how he injured his back:
"4.30 Mr Greeney said that experience with this task [of uncoupling and re-coupling] had taught him that he had to 'swing and lift' the fuel tank trailer around on its two wheels and balance it in order to couple it with the ball of the caravan. He said that if the fuel tank trailer tipped downwards too far and rested on the forks of the jockey wheel, it was very difficult to lift it back up. Often he would not be able to lift it back up and would need to go and get another piece of equipment, like a forklift, to lift the fuel tank trailer level again.
4.31 He said that the fuel tank trailer held about 1200 litres of fuel and on this day was quite full and thus very heavy.
4.32 Mr Greeney said that he tried rotating and pulling the fuel tank trailer around prior to lifting the fuel tank trailer coupling to get it up onto the caravan ball. He was also dragging the jockey wheel forks around as they provided some support for stopping the coupling of the trailer falling too low during this process as he was unable to hold fuel tank trailer level whilst attempting this rotation.
4.33 He said that he believed that as he was doing this, the jockey wheel forks, struck a firm piece of ground such as a rock. Consequently the jockey wheel slipped out of the bracket that connected it to the fuel tank trailer. Mr Greeney believes the jockey wheel forks slipped out of the bracket as they had been wound to their full height, although he is not entirely sure. He said that the jockey wheel seemed to be held in place by the bracket in its usual location immediately prior to this accident.
4.34 Mr Greeney said that due to the jockey wheel forks slipping out of the bracket he was stuck holding the weight of the fuel tank trailer and he instinctively tried to stop it from tilting downwards onto the coupling as he knew he would not be able to lift it level again if this occurred.
4.35 As he attempted to hold the weight of the trailer he immediately felt pain in his back and consequently he let the fuel tank trailer fall" (Report, pp 81-82).
Mr Greeney said that on some other occasions he had had assistance in performing this manoeuvre. Sometimes the road grader had helped him and at other times Mr Hocking or other workers in the camp had helped (transcript p 28).
Mr Greeney said that over the 12 month period that the jockey wheel had been missing he had complained to his employer, GWI, about its absence on a number of occasions. His request that the wheel be replaced was said to have been made every 10 or 11 days when he took the trailer into town. He said that GWI's response was to the effect: "yeah we'll get around to it" (transcript p 76). In the month before his accident, Mr Greeney also asked Mr Hocking for a new jockey wheel on several occasions. Mr Hocking's response was that it was up to GWI to replace it. Mr Greeney said that both GWI and the Council made it clear that he would lose his job if, despite the absence of the jockey wheel, he did not comply with their instructions (transcript pp 76-77).
When Mr Greeney was asked in evidence whether he had had any "specific conversations" with Mr Hocking about the formation of a four-vehicle road train in order to move camp, he replied:
"I would've, I would've certainly told him - whinged to him about the way we used to do it at different times" (transcript p 13).
Mr Greeney gave evidence that GWI:
" … told us [the workers] we could have toolbox meetings, a couple of days after that we had a toolbox meeting and we was [sic] told we weren't allowed to have anymore because, you know, like the grader sitting there is 100-and-something dollars an hour, and if we were to do 'em we had to do 'em in our time" (transcript p 29).
Mr Greeney's counsel submitted that this evidence gave rise to an inference that GWI was remunerated on a time basis under its contract with the Council. It was said that the time saved in moving the four vehicles together, rather than in stages, would therefore enure to the financial benefit of the Council.
His Honour's reasoning on apportionment of responsibility between GWI and the Council was as follows:
"I next consider s 151Z of the Workers Compensation Act 1987 (NSW). It is clear that GWI owed a duty to its employee, the plaintiff. It clearly breached that duty by permitting the plaintiff to continue to carry out his work with defective equipment. The employer had ample notice of the defect and chose, likely for financial reasons, not to remedy it, thereby exposing the plaintiff to the risk of injury. Clearly the employer has breached its non-delegable duty to the plaintiff. I have regard to TNT v Christie. Each case, of course, must be decided upon its own peculiar facts. Although the employer had knowledge of the risk, the defendant was on site each day - it had day-to-day control of, and supervision of, the plaintiff. There were ready alternatives available to avoid the risk of injury, including the important capacity to enforce its rights under the contract, namely that the employer provide not only a worker but safe equipment. In determining the issue under s 151Z I am conscious that judicial minds may differ. I have heard the submissions on behalf of each of the parties. I have reached the view that I should apportion under s 151Z liability in the defendant of 60% and in the employer of 40%" (Judgment p 35).
The circumstances in Thompson v Woolworths (Q'LAND) Pty Ltd [2005] HCA 19; 221 CLR 234 were also distinguishable. In that case the defendant was the occupier of the land on which the plaintiff was injured and had established and maintained a system for delivering goods to its business which the plaintiff followed. In these circumstances, the defendant's duty as occupier to exercise reasonable care for the safety of people who came onto its premises "extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury" (at [27]).
In Leighton Contractors v Fox, an independent contractor was injured as a result of another contractor's negligence. The principal was held not to have owed a duty of care to the injured contractor in relation to the safety of the work methods of the other contractor where it had not been shown that the other contractor was not competent and where the relevant work activity had been placed in that contractor's hands (at [59]). The Court held that there was nothing unreasonable about subcontracting relevant work which was "a self-contained operation that did not require co-ordination with other activities on the site" (at [62]).
In Sydney Water Corporation v Abramovic [2007] NSWCA 248; 5 DDCR 570 at [98], Basten JA (with the concurrence of Mason P) identified the following factors as potentially relevant to the determination of whether a principal owed a relevant duty of care to an employee of a subcontractor:
"(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so."
In Wooby v Australian Postal Corporation [2013] NSWCA 183; 233 IR 471 at [27], Basten JA emphasised the non-exhaustive nature of this list. So far as the principal's control of the work was concerned, his Honour observed that what had been important in Sydney Water Corporation v Abramovic was the "degree of control in fact exercised by the principal", as distinct from the mere existence of a right to exercise a degree of control (at [25]). This reflected the approach taken in Plexvon Pty Ltd (in liq) v Brophy [2006] NSWCA 304; 158 IR 221 at [13] in reliance upon R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurance Ltd [1952] HCA 10; 85 CLR 138 at 151.
Basten JA's observations are consistent with the "multifactorial" approach of Allsop P (with Basten JA and Simpson J concurring) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649. Whilst this case did not concern the relationship of principals to subcontractors or their employees, Allsop P stated principles of general application to the identification of duties of care. In particular, his Honour identified many features of potential relevance, of which only the following need be mentioned here:
"(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to avoid harm;
(d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant …" (at [103]).
Mr Contoyannis did not express an opinion one way or the other on the point but in my view common sense suggests that, as the primary judge held, there was a heightened risk of the coupling mechanism failing in some way in the absence of the jockey wheel. Without the wheel, the prongs had to perform a function for which they were clearly not designed, namely, providing a base for the full weight of the front end of the fuel tanker to rest on in the course of the recoupling operations. Moreover, the front end of the fuel tanker had to be turned, by lifting and pushing the coupling mechanism, to bring it near to the caravan's coupling mechanism to which it was to be attached. Unsurprisingly, this involved a procedure such as occurred in the present case of "dragging the jockey wheel forks around as they provided some support for stopping the coupling of the trailer falling too low" (see [12] above).
Whilst Mr Greeney's counsel did not contend on appeal that this involved the prongs being dragged along the ground, they were clearly close to the ground, as they "struck a firm piece of ground such as a rock" (see [12] above), leading to the prongs and their tube slipping out of the pipe that connected them to the fuel tanker. Mr Contoyannis' use of the word "[c]onsequently" (see para 4.33 quoted in [12] above) suggested that there was a causal relationship between the two events. It can be inferred that, if present, the wheel and its inflated tyre, would have facilitated manoeuvring the front end of the fuel tanker, as this was its purpose (see Mr Contoyannis' report at [7.8] referred to in [11] above). As a matter of common sense the prongs' tube would have been much less likely to have fallen down out of the vertical pipe into which it fitted if the structure had remained continuously connected to the ground as a result of the jockey wheel at the bottom of it moving across the ground. As it happened, the structure was lifted and moved sideways, obviously close to the ground, striking a rock in the process.
A further and alternative answer to the Council's submission is that it is unnecessary under the general law or s 5B(1)(b) of the Civil Liability Act "for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable" (Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120-121; see also Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at [64]; Shaw v Thomas [2010] NSWCA 169 at [43]; Shoalhaven City Council v Pender [2013] NSWCA 210 at [62]). The fuel tanker's coupling mechanism was clearly deficient in an apparently significant fashion. It was obvious that without the jockey wheel it could not be used in the manner for which it had been designed. The prospect of an injury occurring should have been evident given the weight involved and the manual exertion required, even if the prong structure falling out of the pipe might not have been an obvious possibility. The precise mechanism of the accident did not have to be foreseen, nor, if they had come to pass, would other possibilities (such as the prongs collapsing or bending under the weight of the tanker, or Mr Greeney's back strain occurring because he had to lift the weight a little further in the absence of the wheel).
The primary judge justifiably took the further factors below into account in concluding that the Council owed a duty of care to Mr Greeney in giving the direction to move camp.
First, Mr Hocking, on behalf of the Council, was in a position where he was able to, and did, exercise relevant control over Mr Greeney. It was Mr Hocking's responsibility to give the direction to move camp and he either ordered that that occur by the four vehicle road train method or gave the movement direction knowing that that is how it would occur. In either case, Mr Hocking knew that compliance with his direction would involve use of the fuel tanker's defective coupling mechanism. This was not, as was Stevens v Brodribb, a case where a principal had to coordinate the activities of subcontractors but instead a case, to use the language of Brennan J in that case (see [25] above), where the principal created the risk. Here, the Council did that by way of Mr Hocking's positive conduct in giving the relevant direction.
Secondly, Mr Greeney was vulnerable because he had no choice but to obey Mr Hocking's direction. He had complained to both Mr Hocking and his employer about the absence of the jockey wheel but nothing had been done to rectify the problem. Both had made it clear to Mr Greeney that he would lose his job if he did not comply with their instructions (see [14] above).
Thirdly, it was reasonably foreseeable that if the foreseeable risk eventuated Mr Greeney might suffer serious injury, given the need for him to lift and move the fuel tanker's considerable weight.
Fourthly, it could be inferred that the method of changing camp adopted was to the Council's financial advantage as less time would be involved in moving all the vehicles at once rather than two at a time (Judgment p 29 referred to at [19]-[20] above), the inference being open that GWI was paid by the Council on a time basis (Judgment p 33).
In these circumstances, the primary judge did not err in finding that a duty of care existed.
If Mr Greeney had been assisted in his lifting, or the move of camp had occurred in two stages, there is no reason to think that the injury would still have occurred. Similarly, if the Council had insisted that GWI supply a jockey wheel (and refrained from giving a direction to move camp until it complied), the inference is available that as a matter of probability the incident would not have occurred. The evidence indicated that the prongs' tube fell out of its pipe when the prongs were jolted against a rock. A sound inference is that, with the wheel and its tyre in use, one of the wheel's functions being to assist in manoeuvring the front of the fuel tanker, this would have been unlikely to have occurred.
To establish causation where negligence is constituted by an omission, it is necessary for the plaintiff to prove, on the balance of probabilities, that had the omission not occurred the plaintiff's injury would have been avoided or lessened (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [45] and [104]; Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [32]; Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [53]). In applying this principle, the enquiry is concerned with probabilities, whereas in considering breach it is not. In relation to breach, the magnitude of the foreseeable risk must be weighed in the balance but a conclusion that a breach has occurred does not require a finding that the defendant's conduct was, on the balance of probabilities, likely to cause the risk to come to pass. No such finding was made (or was necessary) in the present case. Indeed, it is difficult to see how the evidence would have justified it, considering Mr Greeney had undertaken the manoeuvre in question many times in the past without difficulty. There was thus a risk, but not a probability, of injury. As long as the risk of injury was not far-fetched, it was appropriate to weigh it in the balance when determining whether there had been a breach.
The incident that occurred in September 2008 appears to have resulted from an impact of the coupling prongs with a rock as the prongs were being dragged close to the ground. This jolted the coupling, causing the prong mechanism to fall out of its housing. The occurrence of this precise event (and consequent injury to Mr Greeney) may not have been likely but the primary judge justifiably considered that there was a not insignificant risk that it might occur in light of the absence of the jockey wheel. So far as causation is concerned it can however be inferred that more probably than not the presence of the wheel would have removed the risk, albeit that the risk was low.
Gummow J made a distinction of this type when he observed in Rosenberg v Percival at [97], in relation to the failure of a surgeon to give an appropriate warning:
" … Had the warning been given, the plaintiff in [Chappel v Hart] would have had the operation at a different time by a different surgeon. Given the very low probability of the risk occurring, it would have been extremely unlikely that the harm would have eventuated. That was so, even if the view of the minority was correct and the likelihood of the injury occurring was the same irrespective of who performed the operation. Therefore, in a legally sufficient sense, the failure of the defendant to warn of the risk caused the harm" (citations omitted).
See also Chappel v Hart at [67] and Wallace v Kam at [20].
In other words, because the risk of injury was low, it was more probable than not that the injury would not have occurred if the operation had been performed by a different surgeon at another time. Causation was established because Mrs Hart would not, if given a warning, have had the operation with the same surgeon and at the time she did. Not inconsistently with this, breach was also established because, although low, the risk was sufficiently significant, to require a warning, when the possible consequences of it eventuating were taken into account.
Although these observations were made in relation to the division of responsibility between a plaintiff and a defendant, they are equally applicable to apportionment of responsibility between other parties (Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 at [113]).
Restraint in appellate intervention is appropriate in this context because an apportionment decision relates to a 'question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds …' (Podrebersek v Australian Iron & Steel at 494 quoting British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201).
The following comments of Kirby P, made in an unreported decision of this Court and adopted by the plurality in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212, may be applied by analogy to an evaluative decision such as that presently under consideration:
"Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged."
Apportionment findings are thus not lightly reviewed and the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505 are applicable (Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Ltd [2001] NSWCA 461; 53 NSWLR 626 at [60]-[63] which was unaffected in this respect by the High Court appeal reported as Amaca Pty Ltd v State of New South Wales [2003] HCA 44; 77 ALJR 1509; see also Mikaera v Newman Transport Pty Ltd [2013] NSWCA 464; 65 MVR 578 at [35]). Thus if no error of principle is demonstrated, appellate intervention is only warranted if the apportionment is unreasonable or plainly unjust.
The primary judge did not refer in terms to Podrebersek v Australian Iron & Steel but his reasons do not suggest to me that he took any different approach than described in that case, or otherwise made any error of principle. The immediacy of the Council's involvement appears to have been the decisive factor which led him to apportion greater responsibility to the Council than GWI: in particular, that the Council's representative, Mr Hocking, was on site and gave the direction which he should have foreseen would create a dangerous situation.
It is of the nature of apportionment decisions that minds may differ as to the appropriate division of responsibility. Although a quite different apportionment could reasonably have been made, I do not consider that the primary judge's finding was so unreasonable as to warrant appellate interference with it.
The Council submitted to his Honour that in assessing future economic loss he should apply a discount of 25% to take into account vicissitudes, including Mr Greeney's pre-existing back problem and other medical conditions, being principally his diabetes. Apparently with a view to achieving substantially the same result, his Honour instead proceeded on the basis that Mr Greeney was only likely to work to the age of 61 or 62, about five and a half to six years after the trial. This produced an assessment of $237,500 plus future superannuation entitlement of $26,125.
His Honour assessed future out-of-pocket expenses upon the basis that Mr Greeney had a life expectancy of 24 years (that is, to 80 years of age), taking into account "his poorly controlled diabetes" and "a long history of very heavy smoking of cigarettes, as well as very heavy drinking" (Judgment p 37).
The expert endocrinologist qualified by the Council, Dr John Carter, rejected the proposition (for which Mr Greeney contended at trial) that his diabetes had been exacerbated by the 2008 accident but Dr Carter was silent as to whether Mr Greeney's current condition was attributable to his diabetes rather than the 2008 accident.
On proper analysis, the medical evidence at trial therefore pointed, as the primary judge found, to Mr Greeney's post-accident disability being attributable to the accident.
In oral argument, the Council focused on the primary judge's finding that, after the 2008 accident, Mr Greeney lost his driver's licence because of his diabetes and submitted that this fact demonstrated that Mr Greeney would not have been able to work in the future even if the accident had not occurred. It argued that Mr Greeney would not have been able to obtain a job without being able to drive, either because the types of jobs for which he may have been qualified would have involved driving or because he would have needed to drive to his place of employment, bearing in mind that he lived in the far west of New South Wales.
These propositions were not put to Mr Greeney in cross-examination or to the primary judge in address. In relation to the latter, the Council could point only to a general submission to his Honour to the effect that "the plaintiff was always going to become Insulin dependent" (Defendant's Written Submissions, [87]). This was not the proposition now in question.
The Council's argument is that Mr Greeney's loss would have been suffered even if the subject accident had not occurred. The evidentiary onus therefore rested on the Council to adduce evidence to support it. As observed by the plurality in Purkess v Crittenden [1965] HCA 35; 114 CLR 164 at 168 in relation to the significance of a pre-existing condition:
"[I]t was stressed [in Watts v Rake (1960) 108 CLR 158] that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant's pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be."
Because the Council did not lead evidence to explain what aspect of Mr Greeney's diabetes condition caused the loss of his licence, put to him in cross-examination that he would not have been employable if he could not drive or seek to establish that proposition by evidence, the Council's submission must fail.