Hawkins v Ross Human Directions Ltd

Court of Appeal (NSW)|2015-08-19|Before: Gleeson JA, Leeming JA, Beech-Jones 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.]

Judgment

GLEESON JA: I agree with Leeming JA.
LEEMING JA: Ms Sarah Hawkins appeals, purportedly as of right, from the judgment in favour of her employer, Ross Human Directions Ltd, entered following a four day trial in the District Court. Although aspects of the reasoning of the primary judge disclose material error, I have nevertheless concluded, for the reasons which follow, that the appeal should be dismissed.

Background

There was no dispute about many of the underlying facts. Ross had entered into a written Recruitment Services Agreement with Citigroup Pty Ltd (Citibank), pursuant to which a number of Ross employees were sent to Citibank's premises in the Sydney CBD in around May 2010. Ms Hawkins was one of a team of data analysts whose responsibilities included data entry from a large number of physical files stored by Citibank in archive boxes. Ross also sent a number of runners, who were responsible for moving the archive boxes between the secure storage rooms and the analysts.
Ms Hawkins started work in Citibank's premises on 25 May 2010. She was injured on the evening of Saturday 26 June 2010 while lifting two archive boxes in order to return them to secure storage. No challenge was made to the following primary findings of fact describing the circumstances in which Ms Hawkins came to injure herself: "Over the course of the working day the empty boxes were stacked up along a corridor. In addition, on occasions, the data analysts did not complete their work on all of the files which had been delivered. Those files were still in their boxes although not every one of those boxes was necessarily full of files. Those full and partially full boxes were placed with the empty boxes in the corridor. The files contained confidential information. During the day, as the data analysts finished work on a file, that file would be taken to one of two rooms which were fireproof and secure where they were sorted by the librarian and put away. In addition, at the end of every day, all of the boxes in the corridor were moved into the same rooms. There were two trolleys available to move the boxes. Ross engaged a librarian and runners whose job it was to move the boxes and the files. However it was the uncontradicted evidence of Ms Hawkins that the data analysts regularly assisted those people in moving the boxes into the secure storage rooms at the end of the day. Ms Hawkins regularly worked overtime including either Saturday or Sunday. Her injury occurred on 26 June 2010 which was a Saturday. She had started work at 6 am. Most of the other people working that day had left by 4 pm. She continued doing data entry work until about 6 pm. At that time there was only one other person still there - the librarian Frank Ruggiero. Ms Hawkins saw that he was putting files away. She said she did not like to leave him there on his own so she said she would give him a hand so that they could both get away at a reasonable time. Ms Hawkins was taking the boxes stacked in the corridor into one of those secure rooms. The boxes had been placed in a single row along the wall of the corridor and stacked four or five boxes high. Ms Hawkins said that they came to about chest height and there was not a lot of space between the boxes and the other wall of the corridor. This meant that as she picked up each box she had to lift the box and then twist her body. On one occasion as she bent down and picked a box up and twisted around to walk back into the room where the files were stored, she heard her back go pop and then her back felt very, very hot. On cross examination she added that the boxes were in front of her at waist height but she stooped down to pick them up, because she did not take the top box but took the one below it. The place where she was able to get a grip was at about waist height. It is common ground that Ms Hawkins sustained a significant injury to her back."
The litigation at first instance was complicated by the fact that Ms Hawkins had originally sued not merely her employer Ross, but also Citibank, the occupier of the premises at which her injury occurred. Prior to the trial, consent orders were made entering judgment for Citibank with respect to Ms Hawkins' claim against it. However, there were live cross-claims (whose details are immaterial for present purposes) between Ross and Citibank. The consequence was that Ms Hawkins was cross-examined by counsel for Ross and Citibank, and the evidence included expert evidence adduced by Citibank, including a report by Dr Ann Fairfax which was critical of some of the steps taken by Ross in discharging the duty it owed to Ms Hawkins as her employer. Dr Fairfax was also critical of some of the assumptions and reasoning in a report served on behalf of Ms Hawkins by Mr Mark Dohrmann. No report was served in reply, no report was served by Ross at all, and neither Dr Fairfax nor Mr Dohrmann was required to attend for cross-examination.

The expert reports of Mr Dohrmann and Dr Fairfax

A deal of attention was given, both at trial and on appeal, to what Mr Dohrmann and Dr Fairfax derived from a method of analysis known as "the NIOSH method", which was described, uncontroversially, as a "well-respected tool that can be usefully applied here". The result of the method was to produce a recommended weight limit and a Lifting Index. The inputs into the method were the weight actually lifted, the extent, horizontally and vertically, to which the weight was distant from the person, the vertical travel distance, whether the lifting was asymmetric, the work duration, the frequency of lifts and the quality of grip. Neither report disclosed the underlying calculations. A footnote in Mr Dohrmann's report stated that: "The safe weight is obtained from studies of many lifting episodes and injury reports which have then determined the actual calculatable [sic] value of a safe level of compressive stress at the L5/S1 junction."
Mr Dohrmann assumed a weight of 13 kg, a box size of 40 cm x 30 cm x 25 cm, moderate twisting, a forward reach of 50 cm measured from above the ankles and the use of two hands. Those inputs resulted in a recommended weight limit of 9.2666 kg and a Lifting Index of 1.4028. I would interpret that output as meaning that handling a weight of 13 kg was some 1.4 times greater than the recommended weight limit of just over 9.2 kg, which permitted a conclusion that doing so would result in an elevated risk of injury.
Dr Fairfax was critical of the assumptions leading to Mr Dohrmann's conclusion of a Lifting Index of 1.4028. She observed that his assumption that the box weighed 13 kg was unexplained. Having conducted an experiment, she concluded that the heaviest that a box could weigh was only 9.8 kg. She said "[u]sing a value of 13 rather than 9.8 would significantly increase the Lifting Index value". Dr Fairfax was also critical of Mr Dohrmann's use of a horizontal displacement of 50 cm, because the boxes were only 31 cm wide, and were intended to be held from the middle of each side where there were holes for that purpose. Dr Fairfax was of the view that the horizontal multiplier should be 15.5 cm. She said that the use of 50 cm rather than 15.5 cm would also "significantly increase the value of the Lifting Index".
Dr Fairfax concluded that "the values used by Mr Dohrmann are inflated and would give rise to a higher Lifting Index than would be the case in reality". However, Dr Fairfax did not express the view in terms that if what she regarded as appropriate assumptions had been used, the Lifting Index would be less than 1.

Reasoning of the primary judge

The primary judge found that the weight actually lifted by Ms Hawkins on the occasion of her injury was no more than 7 kg. That finding was soundly based in the evidence, and no challenge was made to it on appeal.
Her Honour then addressed, in separate sections of her judgment, whether it had been shown that Ross had been negligent (a) in permitting Ms Hawkins to lift no more than 7 kg, and (b) in permitting Ms Hawkins to lift at all.
In relation to the first question, her Honour's approach was framed in terms of the particular box which weighed no more than 7 kg the lifting of which was the occasion of Ms Hawkins' injury. Her Honour's conclusion on this aspect of the case was: "In view of my findings set out above, I am not persuaded that Ms Hawkins has shown that Ross should have been aware that there was a risk of injury to her if she lifted a 7 kilogram box or two boxes weighing a total of 7 kilograms and then twisted her body in the manner she described."
Senior counsel for Ross acknowledged, properly, that that aspect of her Honour's reasoning disclosed error. Breach must be assessed prospectively, and not retrospectively. The relevant risk was not confined to the risk of harm if Ms Hawkins lifted a box or boxes weighing no more than 7 kg; the relevant risk was whether there was a risk of injury posed by her lifting boxes which weighed up to 9.8 kg. That is to say, the question in respect of breach was not whether the particular weight lifted on the occasion of Ms Hawkins' injury gave rise to a risk, but whether the employer had failed to take reasonable care to avoid exposing its employees to unnecessary risks of injury. It was accepted that, from time to time, Ms Hawkins was lifting archive boxes which were full; she agreed that of the boxes she had been carrying on the day of her injury "some were full, some were empty".
Again, when dealing with whether Ross should have provided training to Ms Hawkins, the primary judge said that: "Ms Hawkins has not established that she should have been trained not to pick up a ¾ full box. In circumstances where I have found that Ms Hawkins has not shown there is a risk of injury in such a lift, I decline to find that any such training would have included a direction or instruction not to lift the boxes which she was lifting at the time she was injured" (emphasis added).
Once again, it will be seen that her Honour looked back at the particular (two) boxes being lifted at the time of the accident, rather than prospectively at the range of boxes (some full, some part full) which Ms Hawkins was required to lift.
That erroneous approach meant that her Honour failed to resolve all parts of Ms Hawkins' claim. It also allowed her Honour to avoid resolving some of the inconsistencies between the experts' reports. This was clearest when her Honour reasoned: "My finding that Ms Hawkins was lifting a weight of no more than 7 kilograms results in a Lifting Index of less than 1 and, by reference to the principles set out in Mr Dohrmann's report, does not pose any risk of injury." But Mr Dohrmann had determined a recommended weight limit of 9.2 kg, and Ms Hawkins had been engaged in a system of work which saw her lifting, from time to time, boxes which exceeded that limit.
When dealing with the second question, under the heading "Negligence - in being permitted to lift at all", her Honour reproduced the formulation of Ross' duty of care in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12]: "An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards" (footnotes omitted).
The primary judge rejected the submission that Ross was in breach of duty because it had failed to obtain a safety audit. Her Honour noted that the onus lay on the plaintiff, and concluded that it was not established that Ross failed to obtain a safety audit. Her Honour then, in the event she was wrong about that, assumed that Ms Hawkins had shown there to have been a failure to obtain a safety audit, and on that basis accepted that Ms Hawkins had established: "that on the balance of probabilities it is likely that such an audit may have picked up a risk of injury from carrying a full box, albeit that it would seem to be a small risk. The author may have recommended that a small female employee of Ms Hawkins' stature not pick up a full box."
Her Honour then made these findings: "However I do not accept it is likely that a safety audit would have included a recommendation that Ms Hawkins be prohibited from picking up any boxes regardless of their weight. As I asked counsel for the plaintiff, is it likely that there would be a recommendation that Ms Hawkins be prohibited from picking up an empty box? Ms Hawkins agreed that the lids could easily be removed and anyone could check whether a box was full before it was lifted. Ms Hawkins described the top box (which I infer was empty or almost empty) as very, very light. There is no basis to conclude that there would have been a recommendation that she not be allowed to lift an empty box. The weight lifted by Ms Hawkins was the equivalent of a ¾ full box. I am not persuaded that Ms Hawkins has shown that it is likely that a safety audit would have recommended that she be prohibited from lifting a ¾ full box. Counsel for the plaintiff submitted the runners should have been kept at work until Ms Hawkins finished so that they would have been available to carry the boxes. However the librarian was still there. It was part of his duties to pack away boxes and files. Counsel for the plaintiff accepted that Ms Hawkins volunteered to help the librarian. There was no suggestion that Ms Hawkins had to stay until the librarian had finished packing away. I decline to find that Ms Hawkins has shown that Ross should have kept more than one employee (whose job it was to carry boxes) on duty while there was one data analyst still at work."
Her Honour made no findings of contributory negligence, or as to quantum, although those matters appear to have been fully argued. Her Honour merely gave a verdict for Ross.
There were no fewer than 11 grounds of appeal, but in oral submissions counsel for the appellant, helpfully, placed them in two categories.

Failure to refer to bending and twisting at the same time

Grounds 1 and 11 comprised the first category. Those grounds alleged error by the primary judge in failing to consider the evidence that Ms Hawkins had to bend and twist while lifting the boxes, and that the system of work involved working in a confined space making it necessary to bend and twist at the same time.
Ms Hawkins submitted, by reference to qualitative passages in Dr Fairfax's report, that any lifting which included twisting was risky. As it was put orally, "So [Dr Fairfax's opinion] is not an opinion that's based upon: Am I lifting 9 kilos, 7 kilos, 5 kilos, 2 kilos, 3 kilos, 20 kilos. It's that that particular motion in itself is risky, bad lifting technique, creates an unstable position and therefore to be avoided." Counsel for Ms Hawkins maintained that "there is a risk that appears to be independent of the amount of weight", although he acknowledged that "the degree of risk may shift with the weight, but nonetheless the risk is there".
There are two reasons why I would not accept these submissions.
The first is that the primary judge expressly had regard to the fact that Ms Hawkins lifted and twisted in the course of moving boxes, including on the occasion of her injury. When making findings as to the physical layout of the area where Ms Hawkins worked, her Honour said that the lack of space "meant that as she picked up each box she had to lift the box and then twist her body". When making findings as to the occurrence of the injury itself, her Honour said "as she bent down and picked a box up and twisted around to walk back into the room where the files were stored, she heard her back go pop". Her Honour also referred to Ms Hawkins "twist[ing] her body in the manner she described" when determining breach of duty in the passage reproduced above, although concededly that portion of her Honour's reasoning disclosed error. Although the concluding paragraphs of her Honour's reasons tend to refer merely to lifting per se, rather than lifting and twisting, on a fair reading of the reasons as a whole I would not conclude that her Honour failed to deal with this important aspect of Ms Hawkins' case. Instead, I would infer that her Honour has simply used an abbreviated description of the injury.
Secondly, and more fundamentally, it is not the case that any system of work involving bending and twisting while lifting boxes gives rise to a risk that requires an employer to take precautions. This is most clearly indicated, as Ross submitted, by the NIOSH method employed by both experts. Because it is well known that twisting while lifting leads to an additional risk of injury, whether or not and the extent to which a specific task involves twisting is an input into the method. Mr Dohrmann described the position as follows: "The forces produced in a specific task can be calculated from knowledge of the applicable forces and dimensions, including reach, height, and twist. NIOSH experimenters have also examined the influences of speed (thus, task frequency), coupling (quality of grip) and energy consumption - all of which are considered within the NIOSH calculation. The equation produces a 'safe' weight for a defined task and set of forces" (emphasis added).
Mr Dohrmann's report also stated: "The NIOSH calculation computes the combined effects of posture, reach, lifting frequency, grip and twisting, and produces a 'safe' weight commensurate with that profile" (emphasis added). The NIOSH method thus confirms that twisting while lifting does not of itself entail the consequence that an employer is required to adopt precautionary measures. The NIOSH method proceeds on the basis that some lifting and twisting is not dangerous. Whether or not that is so depends on all the circumstances applicable (not least, the weight of the items being lifted).

Remaining grounds

Ground 9 of the notice of appeal asserted error in her Honour's conclusion that there was no requirement to keep runners present until all the boxes had been put away. But that could only have been a reasonable step for an employer to take if it were shown that putting away an archive box by a data analyst posed a real risk of an injury. For the reasons given above, that was not established on the evidence.
All the remaining grounds (2-8 and 10) asserted a "failure to consider" or a "failure properly to consider" particular aspects of the evidence. Notices of appeal in that form are seen from time to time: cf Boral Resources (NSW) Pty Ltd v Gangi [2014] NSWCA 287 at [70]. But they do not assist. Ms Hawkins' appeal, no different from other appeals by way of rehearing, is premised on the requirement to identify error. It is well settled that the judgment or order impugned must be shown to be "the result of some legal, factual or discretionary error": see Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] and (for one example out of many) Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [28]. Grounds which refer merely to a failure to consider, or a failure properly to consider, evidence do not directly undercut the dispositive reasoning.
Appreciating this, counsel for the appellant sought in oral submissions to encapsulate these grounds in the following exchange: "McMANAMEY: Well, rather than focussing on: This is the system, does it expose you to a risk of injury, and then what are the steps you should take to avoid that risk and would that then have avoided the injury, she's done it the other way around, and rather than focussing on the system of work and its risks and what steps you should take about that, she's instead reversed it and gone the other way and said: The particular cause on this occasion is lifting a box that's no more than 7 kilograms, and said that in itself is not unsafe, and if that's all you're doing you wouldn't take steps about it. That in my submission is reversing the process. The starting point is to say: What's the system of work? Does it give rise to a risk of injury? Now in my submission when one analyses the evidence it does give rise to a risk of injury. And the risk of injury arises because apart from the bending and twisting part that I've already taken your Honours through, the moving of the boxes involves moving boxes in that 9 kilogram area at a point in time in which the appellant is fatigued, having worked the long hours - BEECH-JONES J: Mr McManamey, is this what your proposition ultimately is: It should have been approached by asking this: The system of work was unsafe because there was the potential to lift boxes more than 9 kilos? McMANAMEY: Yes. BEECH-JONES J: That's what was unsafe about it. The fact that she in the specific instance was injured by a box that was less than 7 kilos is irrelevant because the response to the system involving more than 9 kilos would have meant that she would not have had to lift the box that was 7 kilos? McMANAMEY: That's precisely it, your Honour. BEECH-JONES J: Right. McMANAMEY: And I'm not sure I can put it any more clearly."
To the extent that Ms Hawkins submitted that an employer was subject to an absolute duty to ensure that its employees faced no risks, the submission must be rejected. The position in an action for negligence such as the present is as stated by the High Court in Czatyrko. The duty extends to cases where there is a real risk of injury, and requires the employer to take reasonable care. Examples of these limitations upon the duty of an employer may be seen in Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31 at [47]-[50].
That said, for the reasons already given, error is disclosed in the portion of her Honour's reasons which turn on Ms Hawkins' failure to prove that lifting a box weighing no more than 7 kg would pose a risk of injury. It was necessary to have regard to the potential for Ms Hawkins to lift boxes of up to 9.8 kg.
Error in some of the reasoning of the primary judge is therefore established, but it does not follow that the appeal must be allowed. Only if Ms Hawkins had shown that there was a real risk of injury in her lifting boxes weighing no more than 9.8 kg was there an obligation imposed on her employer. This Court may not, by reason of r 51.53 of the Uniform Civil Procedure Rules 2005 (NSW), order a new trial unless it appears that some substantial wrong or miscarriage has been occasioned by the error.
In order to advance that case, Ms Hawkins relied on two expert reports, neither of whose authors was cross-examined. This Court is in no worse position than the trial judge to determine whether those reports might sustain Mr Hawkins' claim of breach of duty.
Mr Dohrmann's calculations of risk could not survive the criticisms made of them by Dr Fairfax which are summarised above, and, in any event, his report was not at the forefront of Ms Hawkins' submissions. I am entirely unpersuaded that any such risk is established by Mr Dohrmann's report, in light of the unchallenged findings as to the dimensions and weight of the boxes.
Although the position is less clear-cut in the case of Dr Fairfax, I am also unpersuaded that any such risk is established by her report. Dr Fairfax's report did not demonstrate that the lifting and twisting performed by Ms Hawkins involved anything over the recommended weight limit or Lifting Index. Indeed, it is clear that attending to each of the two principal criticisms of Mr Dohrmann's assumptions would reduce the Lifting Index, in each case, according to Dr Fairfax, "significantly".
That was not the only evidence against Ms Hawkins on this issue. Dr Fairfax also concluded, independently of the NIOSH method, by reference to the Liberty Mutual Tables, that: "Lifting [9 kilograms] a few times, as the Plaintiff did, is expected to be well within the safe lifting limits for female workers".
Because of the way in which the opinions on the NIOSH method were presented, it is not possible to be certain that it would have shown a Lifting Index of less than 1 had inputs which corresponded to the evidence been used. Even so, that is not the point, because it was for Ms Hawkins to show that there was a risk in the system of work which was of sufficient magnitude (for example, because the Lifting Index for boxes weighing up to 9.8 kg would exceed 1) to warrant precautions being taken. This she failed to do.
Ms Hawkins pointed to qualitative statements in Dr Fairfax's report as to the dangers of lifting and twisting. Those statements do not suffice to establish a real risk in the present case which led to a breach of duty by Ross taking no precautionary steps. That is especially so where Dr Fairfax's quantitative analysis suggested that lifting no more than 9.8 kg close to one's body was unlikely to be unsafe.
The high point of what could be obtained from Dr Fairfax's report, so far as Ms Hawkins was concerned, was a qualitative risk analysis, which placed heavy reliance on the assumption that Ms Hawkins was "very underweight" at the time of the accident and Dr Fairfax's understanding that "low weight can be associated with bone weakness or low bone density", as a result of which she assessed the risk of injury to Ms Hawkins as "medium". Two issues arise in respect of this assessment. First, precisely what Ms Hawkins weighed at the relevant time was in issue, and was not the subject of a finding by the primary judge. It is plain from the evidence that Ms Hawkins' weight fluctuated considerably from time to time. Further, it was not established that Ms Hawkins in fact has low bone density. Indeed, the considerable weight fluctuations tend to confirm that her low weight in June 2010 was not attributable to low bone density. In short, it was not established that the assumptions underlying the "medium" risk assessment were made out.
I am also conscious of the fact that Ms Hawkins was permitted to work a very long day, which was a factor which could increase the risk of injury. But the onus lay at all times on Ms Hawkins to prove that there was a real risk of injury in a system of work that included regularly lifting boxes weighing up to 9.8 kg in the manner described by Ms Hawkins, relatively infrequently, albeit over a long working day.
Finally, Ms Hawkins relied on Ross supplying "runners" on the premises, which, so it was said, amounted to an acknowledgement that there was an appreciable risk of injury. The evidence did not show what the runners were paid or whether they had been trained to lift boxes. It is at least as likely that Ross used runners whose hourly rate was cheaper because it was a more efficient way to carry out the job, and left more time for the data analysts to perform their function. The fact that runners were sent to move boxes does not enable a conclusion that Ross breached its duty of care in permitting a person who was not a runner to lift a box weighing no more than 9.8 kg in the circumstances encountered by Ms Hawkins.
In short, I am not persuaded that the errors disclosed in the reasoning mean that there has been any substantial miscarriage of justice. Ms Hawkins needed to establish a breach of duty. Her own expert's approach was flawed, and although he was not required for cross-examination, I do not accept his opinions (and I note that it was not submitted on appeal that the criticisms made by Dr Fairfax were invalid). The expert evidence adduced by Citibank did not of itself establish a breach of duty, when it is read fairly as a whole. Even the most favourable aspects of that report depended upon assumptions which were not made out in the evidence. Finally, the conclusion of breach of duty is not sustained from other evidence which had been adduced. In addition, as Beech-Jones J indicates, even if breach could be established, it remains difficult to see how Ms Hawkins could establish causation.

Orders

For those reasons, I propose that the appeal be dismissed, with costs.
BEECH-JONES J: I agree with Leeming JA. In relation to the second manner in which Ms Hawkins' case was pitched (see [30]) I would add that, even if the potential for her to occasionally lift boxes heavier than 7 kg and less than 9.8 kg gave rise to responsibility on her employer to take precautions, there was nothing to demonstrate that those precautions would have been such as to prevent her accident happening. Factual causation is assessed retrospectively. The only system that could have prevented Ms Hawkins' accident from happening was one in which she was precluded from lifting any box because of the potential for her to lift a particularly heavy one. It is difficult to accept that an office environment could function if employees in Ms Hawkins' position were precluded from lifting any box of documents. Of course the position might be different if her injuries were occasioned by repeated lifting but they were not.

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: 08 September 2015

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