Herning v GWS Machinery Pty Ltd & Anor

Herning v GWS Machinery Pty Ltd & Anor - [2005] NSWCA 263 - NSWCA 2005 case summary — Zoe

[26]

15 August 2005 SCOTT HERNING v GWS MACHINERY PTY LTD & ANOR Judgment 1 HANDLEY JA: I agree with Basten JA. 2 BEAZLEY JA: I agree with the reasons of Basten JA in relation to his finding that the first respondent breached his duty of care to the appellant and that the negligence was causative of the damage sustained by the appellant. I respectfully disagree however, with his Honour's determination in respect of contributory negligence. 3 As Basten JA has pointed out, contributory negligence was pleaded on two bases: failing to heed instructions and failing to avail himself of assistance that was provided. As his Honour has also pointed out, neither of those particulars could have been upheld on the evidence - there were no relevant instructions and it was unlikely that there would have been any assistance available to him, given the time at which the incident occurred. 4 There was no evidence that the appellant knew that if he attempted to move the load it was likely that he would injure his back. Indeed, there was no cross-examination to that effect. Nor had he disobeyed any instruction in attempting to move the load. Although Basten JA has expressed that this was not an "agony of the moment" situation it was a case where the appellant really had little, if any alternative, but to seek to right the load. The slasher had actually "moved out past the side of the truck". It was late on a Friday. Assistance was not, or was at least not likely to have been, available. If there were an alternative it would have been to leave the vehicle with its load on the side of the road. That could have been dangerous and presumably, for that reason, that was not suggested to the appellant as being a reasonable response to the predicament in which he found himself. 5 What then was the contributory negligence on the part of the appellant? In my opinion, in the circumstances here, there was none. This is not a case like Thompson v Woolworths (Q,land) Pty Limited [2005] HCA 19 where the appellant was an independent contractor, she had injured her back a few days previously - a matter she knew but which was not known to the respondent, and in the normal course she always had assistance but on this occasion she chose not to wait for assistance to arrive but decided to save time and move the heavy bins herself. 6 Accordingly, I would allow the appeal and not make any reduction for contributory negligence. 7 BASTEN JA: At approximately 4.30pm on 5 December 1997 the Appellant, Mr Herning, received a telephone call from his "boss" at the office of his employer, GWS Machinery Pty Ltd ("the First Respondent") asking him to collect a slasher from the premises of Jarrett Implements Pty Ltd ("the Second Respondent"). He drove to the premises of the Second Respondent, where the slasher was loaded onto the back of the First Respondent's truck by means of a tractor with a small crane. The slasher weighed approximately 200 kilograms. It was strapped to the back of the truck and the Appellant commenced the journey to his employer's premises. During the journey the load shifted on the truck, causing the Appellant to stop and seek to reposition it manually. That effort caused him to suffer a significant injury to his lower back. 8 By statement of claim filed on 26 November 2001, the Appellant commenced proceedings for damages against both the present Respondents. The Appellant was unsuccessful, the District Court holding that there was no liability in negligence on the part of either Respondent. In this Court, the Appellant seeks to overturn both of those findings.

[27]

Facts 9 The only witness to the events of the day in question, called at the trial, was the Appellant. His evidence was subject to cross-examination, but was not contradicted by any independent evidence put forward by the Respondents. Of the Appellant, the trial judge said that he had "impressed me as a particularly straightforward and acceptable witness". 10 The Appellant stated that he was employed as a "sales rep" for the Sydney and surrounding areas. Most of his work for his employer was "on-road sales and demonstrations", selling farm and agricultural equipment and lawn mowers. 11 On the day in question, he had been visiting orchardists in the Hills area and was on his way back to the depot when he received the call asking him to collect the slasher from the Second Respondent's premises. He agreed to do so. The request came at about 4.30pm by telephone, and his evidence was that staff at the depot finished work at about that time and normally left the premises by about 5.00pm. The Appellant gave evidence that the truck he was driving on that occasion was a small truck which he had driven approximately once per fortnight during his employment, which had commenced at some unspecified time during 1997. 12 The slasher having been loaded at the Second Respondent's premises, the Appellant and an employee of the Second Respondent attached a single high tensile fabric strap across the slasher to hold it in place. The strap was tightened by way of a ratchet. There was only one strap available on the truck at the time. 13 Having loaded the truck, the Appellant then started the trip back to the depot. He had gone less than a kilometre when, whilst proceeding past a roundabout, he felt the load shift and stopped and to reposition it. 14 In order to move the load back into position on the tray of the truck, he said that he "grabbed the back edge of the slasher … with my hands just underneath the steel base … and just hoiked it over, tried to shift it over to the centre of the truck again". He said that he made three attempts, moving it a matter of inches each time, and felt pain in his back on the second attempt. He was successful in centring the slasher on the tray of the truck and was able to re-tension the strap and complete the journey back to the depot.

[33]

Foreseeability of risk 19 The Appellant's case must therefore be focused on the fact that the load shifted, with the result that he took action which resulted in the injury. 20 Although it may be true, as the trial judge noted, that there was no direct evidence of loads secured by one strap shifting in the manner that the present load shifted, there was unequivocal evidence that machinery secured by a strap moves. It was therefore necessary for the Court to determine whether it was reasonably foreseeable by the employer that a load of this kind might move sufficiently to require repositioning and whether it was foreseeable that a person in the position of the Appellant might attempt to reposition the load. His Honour made a finding which assumed the first limb and rejected the second. He held: "Even if it was foreseeable from the first defendant's point of view that a slasher of this size secured on this truck might move in transit, I consider it would not be foreseeable that the plaintiff would try to manhandle a 200 kilogram weight on his own." 21 Although expressed in terms of an assumption, there was undoubtedly evidence to support the foreseeability of the load moving in transit, at least if it were secured by straps, rather than a chain. If his Honour did not explicitly make such a finding, it is nevertheless a finding which should be made. 22 Once that danger is foreseen, the second step seems inevitable: a diligent employee faced with a load which has shifted so as to render the rest of the journey dangerous, unless the load is repositioned, can readily be expected to do his best to rectify the situation with whatever equipment or assistance he has at hand. To say that it is not foreseeable that the Appellant would seek to shift the slasher in his own defies one's knowledge of human experience, at least unless the Appellant was fully aware of the hazards involved, either from his own experience or because he had been warned. 23 In my view it was readily foreseeable that the Appellant would seek to reposition the slasher in the circumstances in which he was placed. Those circumstances included the fact that he would otherwise need to abandon the truck and the slasher at the roadside, some 45 minutes from his depot, shortly before 5.00pm on a Friday evening. The circumstances also include the fact that, whilst he was aware that the slasher weighed some 200 kilograms, he was not seeking to lift the full load of the slasher, but merely "hoik" one corner, so as to reposition it on the tray of the truck. The slasher stood on skids. He might be expected to assume that this would involve a lift and push, which were within his physical capabilities. In addition, there was no equipment on the truck which could assist him with task and it was at least unlikely that he would obtain any assistance from the depot. All of these factors would have been known to the employer. Accordingly, the risk of him seeking to reposition the slasher himself was reasonably foreseeable.

[35]

That conclusion appears to have been partly based upon an earlier finding to the following effect: "At the time of the injury the plaintiff was reasonably experienced in his job, he had completed his apprenticeship some years back." 25 In each case the reference to experience and training must be seen in its context. His training was as a mechanic and he had completed an apprenticeship in automotive engineering. There was no suggestion that either this training, or his experience as a sales representative, gave him any particular knowledge or experience of moving heavy weights, nor did the trial judge so find. He was cross-examined concerning the truck licence, which he had obtained whilst working for his then employer. He accepted that he had learned regulations and rules pertaining to truck driving and with respect to loading trucks. The purpose of the cross-examination appears to have been to demonstrate that he understood his responsibility as a driver for the safe loading of a truck and the proper means for securing loads. It was not suggested to him that he had either experience or training in relation to lifting, or the risks involved. 26 In the course of his Honour's judgment, reference was made to the decision of this Court in Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 for the proposition that the mere fact of an injury does not demonstrate a failure to provide a safe system of work, nor does it avoid the need to identify that which the employer should have done and did not do. That case involved an attempt by a truck driver to restack crates which had shifted during part of a journey, a manoeuvre which required him to lift a crate and to twist awkwardly in a confined space. In rejecting any finding of negligence on the part of his employer, Ipp JA, with whom McColl JA agreed stated at [27] and [28]: "The Appellant was a man with many years of experience in transporting heavy goods. He knew that the crate he attempted to lift was very heavy. It weighed 164 kilograms and this weight was printed on the outside. It must have been obvious to him that any attempt on his part to lift the crate manually was fraught with risk. The trial judge rightly found that it was foolhardy of the Appellant to try to lift it."

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Causation 29 Where a warning is appropriate, there remains a question as to whether its absence had any causative effect in relation to the injury. Where the risks of injury should be well within the understanding of the employee, it may be inferred that an express warning will be unlikely to deter careless behaviour. On the other hand, it was not established in the present case that the risks were properly understood by the Appellant; what was required was some instruction as to what he should do in the circumstances which arose, where it was likely that his boss had stopped work for the day and that no assistance could reasonably be expected from the depot. This factor was not explored with the Appellant, but at the choice of the First Respondent. A question asked of the Appellant in chief as to why he had not rung the depot to seek assistance was objected to by the First Respondent and disallowed. The specific questions which followed concerned the time of day, the time at which work was likely to have stopped and the distance from the depot. The obvious inference from this material was that no assistance would have been available, an inference not challenged by the First Respondent. 30 While this was not an 'agony of the moment' type of case, it was a situation where the Appellant was left by his employer in a difficult situation, some distance from his depot, with no immediate means of assistance and with no instructions as to what was expected of him. It is at least likely that appropriate instructions would have resulted in the Appellant not seeking to rectify the situation in the hazardous manner which gave rise to the injury. Whilst there was little enough evidence relating to this issue, it was not, in my view, a case which could be dismissed on the basis of there being no duty to instruct the Appellant not to try to move the slasher on his own. Accordingly, in my view the judgment on liability must be set aside, with respect to the First Respondent, but not the Second Respondent, who played no part in that aspect of the matter.

[40]

The objective nature of the test is confirmed in the recent judgment of McHugh J in Joslyn v Berryman (2003) 214 CLR 552 at [32]-[35]. 33 It may be said of this case, as in Czatyrko v Edith Cowan University [2005] HCA 14 at [18]: "The appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent … ." 34 On the other hand, this was not a case involving repetitive work in a factory environment. Rather, the Appellant was away from his employer's depot, with a vehicle, undertaking a task within the general scope of his duties and in circumstances where the manner of performance was a matter left largely to him. 35 That he should have been aware that he was in danger of placing undue stress on his back in seeking to move the slasher on the tray of the truck, without mechanical or other assistance, follows from the fact that he was only able to move the machinery "a few inches" at a time and that it took three attempts to reposition it. (He felt the injury occur on the second attempt.) 36 In assessing the nature of the risk involved in this action, it would have been helpful to have some evidence of the weight actually lifted (assuming that not to be the full weight of the machinery), the height of the grip on the slasher above the tray of the truck and the extent to which a sideways movement was involved: c.f. Waugh v Kipper (1986) 160 CLR 156, 159-160. None of this material was before the trial judge, nor did he have any photographs which might have assisted in reconstructing the event. Whilst he accepted the evidence of the Appellant, there was no cross-examination of the Appellant as to his appreciation of the extent of the risk involved, or the availability of alternative courses of action. Nevertheless, because the test of contributory negligence depends on an objective assessment, these omissions are not fatal to a finding of want of reasonable care on the Appellant's part in regard to his own safety. 37 On the basis of this material, I would consider it just and equitable to reduce the damages by 25%, having regard to the Appellant's share in the responsibility for the injury.

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(5) Order that the First Respondent pay the Appellant's costs of the appeal. 39 No submissions were made in this Court as to the appropriate orders for costs. In the orders proposed above, with respect to the costs of the trial, a Bullock order has been made with the result that the first defendant is liable for the second defendant's costs from 15 December 2003. The intended purpose of that order is to reflect the costs order made by the trial judge, after argument, "that the first defendant pay the second defendant's costs of the re-hearing from 15 December 2003 on an ordinary basis". The reason for this order was that there had been an arbitration, prior to the hearing in the District Court, at which the plaintiff had been successful in relation to the issue of liability, as against the first defendant, but unsuccessful as against the second defendant. The "re-hearing" sought by the plaintiff had been limited to the question of quantum. The first defendant had expanded the issues to cover liability. It was that conduct upon which the trial judge relied in ordering the first defendant to pay the second defendant's costs from a particular date. That order was not challenged and is sought to be reflected in proposed order (2)(d) above. 40 That leaves open a question of the proper manner of disposing of the Second Respondent's costs of the appeal. No submissions were addressed to this question either in writing, or on the argument of the appeal. Whether a Bullock order can be justified in relation to the appeal is an open question. The relevant principles to be applied may be sufficiently identified in the well-known passage in the judgment of Gibbs CJ in Gould v Vaggelas (1983-85) 157 CLR 215 at 229, where his Honour stated: "In my respectful opinion, however, the mere fact that the joinder of two defendants was reasonable does not mean that the unsuccessful defendant should be ordered to pay, directly or indirectly, the costs of the successful defendant. Obviously a judge should make a Bullock order only if he considers it just that the costs of the successful defendant should be borne by the unsuccessful defendant, and, if nothing that the unsuccessful defendant has said or done has led the plaintiff to sue the other defendant, who ultimately was held not to be liable, it is difficult to see any reason why the unsuccessful defendant should be required to pay for the plaintiff's error or over-caution."

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