Liftronic Pty Limited v Unver

Liftronic Pty Limited v Unver - [2001] HCA 24 - HCA 2001 case summary — Zoe

[13]

On Monday 20 February 1995, the plaintiff sustained injury to his back in the course of his employment with the defendant. The plaintiff was a lift mechanic. He had been "doing this job for 17 years" although he had been employed by the defendant only since October 1994. He was injured while working with another employee installing rails in an elevator shaft at the Sydney Eye Hospital. According to the plaintiff, their job was to lift steel rails, each 5 metres in length and weighing approximately 111.5 kilograms, from the floor onto a shelf and clean and paint them. When a rail had been cleaned and painted, they had to lift it "and put it aside somewhere else". Painting and cleaning a rail took about 15 to 20 minutes.
The plaintiff testified that this work had commenced on the previous Thursday when a charge hand had directed him to clean and paint the rails. He said that he was given no instructions as to how to carry out the job. Nor was he given any hooks or other equipment to assist in lifting the rails. He denied that he was told to keep his back straight when lifting and to bend from his knees.
The plaintiff said that, at about 8.30am on the Monday morning, "I was again bending down and I tried to lift the railing. When I was doing that I felt a burning sensation." He said that he "bent down, picked it up, tried to lift, then I felt that burning sensation".
Mr Colin Simpson, a consulting engineer, testified that authorities such as the National Health and Medical Research Council recommended that a person should not be asked to lift more than 39 kilograms. He said that on each lift the plaintiff and his fellow employee would be lifting about 55 kilograms each. Mr Simpson said that the 39 kilograms maximum weight assumes "ideal conditions on a once per eight hour basis and assumes that whoever does it, bends their knees, keeps a straight back, there is no twisting or any of those contortions that are known to be potentially dangerous". In his opinion, "in this instance the weight is well and truly over that and there has to be a real risk of injury and specifically a back injury". If the plaintiff had to lift the rails manually onto the scaffolding, the maximum weight that ought to have been lifted was 35 kilograms and that weight assumed that the worker "has been trained in lifting". Mr Simpson said that there were hundreds of mechanical lifting devices available to lift the rails and that, if manual labour had to be used, then eight people using hooks should have been used to lift each rail.
On the plaintiff's case, therefore, the defendant had no system, gave its employees no instructions, and required them to lift weights that exposed them to a risk of injury that could have been avoided by using reasonably practicable alternatives. If the jury had accepted the case for the plaintiff, they could not reasonably have found him guilty of contributory negligence.
The learned trial judge gave the jury a number of questions that they had to answer. The first question was, "Has the plaintiff proved he suffered injury as a result of the defendant's negligence?" In directing the jury on this question, his Honour said:

[21]

The evidence of Mr Dawes, if accepted, rejected the whole basis of the plaintiff's case. But it also allowed the plaintiff to run two alternative cases, if he had wanted to do so. The first alternative was that the defendant's system required the plaintiff and Mr Dawes to crouch or bend while they were cleaning and painting the rails and that it was reasonably foreseeable that the plaintiff might abandon the system and adopt the system that he did. If the jury found that what the plaintiff had done was a reasonably foreseeable consequence of the defendant's system, they could also have found that the provision of lifting equipment and a sufficiently high platform would have avoided the injury and the risk of it occurring. But the plaintiff did not put this alternative case as a head of negligence.
In determining what was a reasonable apportionment of responsibility for the damage suffered by the plaintiff, it would be erroneous, therefore, to act on the basis that the defendant should have foreseen that the plaintiff would abandon its system and introduce his own. That was never the plaintiff's case at the trial. As will appear, the majority of the Court of Appeal held that it was reasonably foreseeable that the plaintiff would in fact do that. In doing so, the majority erred. By doing so, they attributed to the defendant a degree of fault that was not litigated at the trial and which, if it had been litigated, could reasonably have been found in favour of the defendant.
The second alternative case that Mr Dawes's evidence allowed the plaintiff to put to the jury was that the defendant had failed to enforce its own system. On the evidence of Mr Dawes, it was unlikely that the plaintiff could have succeeded on this alternative case. On that evidence, there could not have been more than one previous lift under the "new system". In effect, the jury would have been asked to find that the defendant should have continually supervised a mechanic of 17 years' experience to ensure that he did not abandon its system - after using it for two days - and substitute a system of his own. Moreover, given how quickly the injury occurred under the "new system", the plaintiff would have had a difficult problem on the issue of causation. To succeed on that issue, the jury would have had to find that constant supervision would have avoided his injury. Nevertheless, despite these difficulties, the learned trial judge left a version of this alternative case, although his charge hardly directed the jury to the issues that were involved in it. He merely said, "The plaintiff also says that it is part of the employer's duty to supervise and ensure that any system of work that is put in place is carried out by the employees." He said no more on the issue.

[25]

The learned trial judge erred in giving these directions. It did matter whether the hooks were available or not, and the issues of negligence and causation that were involved were much more complex than these directions assumed. The issue of actionable negligence did not turn on whether the defendant's system was negligent in some abstract sense, divorced from the facts of the case as found by the jury. In so far as the plaintiff relied on an unsafe system of work, he had to prove not merely that the defendant's system was negligent but that that system had caused his injury. The issue of causation was an easy one for the plaintiff on his evidence. It was a complex and difficult one, as was the issue of negligence, if the jury accepted Mr Dawes's evidence.
It is true that, on the unchallenged evidence of Mr Simpson, the defendant's system required the plaintiff to lift a weight that was at least 16 kilograms greater than the National Health and Medical Research Council standard. On that basis it was open to the jury to find that the defendant's system was defective. But they would not have been acting unreasonably if they had found that the defendant was not negligent in using its system. It was open to the jury to find that, despite Mr Simpson's evidence, only a small risk was involved in using, every 15 or 20 minutes, the hooks and a straight back to twice carry a rail two or three metres and lift it up and down two or three inches. It was open to the jury to find that the risk was so small that it was not unreasonable for the defendant not to use a small crane or a team of eight men to lift each rail. This was particularly so, since the work was not being done on the defendant's premises and would have required the expense and inconvenience of getting the crane to the Hospital. The jury might also have been sceptical as to whether the National Health and Medical Research Council standards were fully applicable in respect of a lift of two or three inches using hooks and a straight back. Mr Simpson's evidence had been based on the assumption that the plaintiff had to lift the rails manually onto a platform two feet high. When counsel for the plaintiff asked him about lifting the rail onto beams two or three inches above the ground, his evidence was far from clear and seemed to have assumed that manual lifting without hooks was involved. Asked "would you still subscribe that those two alternative methods [ie lifting equipment and eight men with tongs] would be much preferable?" he answered, "Most certainly."
The judge's directions to the jury did not address any of the considerations that pointed against negligence. His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it. In Wyong Shire Council v Shirt[2], Mason J pointed out:

[30]

Given the jury's finding on contributory negligence, it is clear that they rejected the plaintiff's primary case on negligence. He was not left to design his own system, as he maintained. So either the jury found that the defendant was negligent in not enforcing its system or that it was negligent simply because it did not provide lifting equipment. The strength of the trial judge's directions in his summing up and in his re-direction indicates that the jury probably found that the defendant was negligent because, although it provided hooks and instructed the plaintiff not to bend his back and to bend his knees, its system exposed the plaintiff to the risk of injury because lifting equipment was not provided.
On the other hand, the finding of contributory negligence must be assessed on the basis that the plaintiff had abandoned the defendant's system, had invented his own system and, in defiance of express instructions, bent his back to lift the rail onto the platform.
Upon these findings, it was open to the jury to find that it was just and equitable to reduce the plaintiff's damages by 60 percent. The jurors were entitled to take the view that, although the provision of lifting equipment and a higher platform would have eliminated the risk of injury and the plaintiff would not have suffered injury, the injury would not have occurred even if he had continued to use the defendant's system. That is, although the jury had found that the defendant was negligent in not using a mobile crane or similar device, the defendant's system while containing a theoretical risk of injury would probably not have caused the plaintiff's injury if he had followed the system. Giving powerful support to that conclusion was the fact that the plaintiff and Mr Dawes had used the system for two days without mishap. Yet it took only five or ten minutes for the "new system" to cause injury to the plaintiff. Moreover, Mr Dawes said that using the hooks was very easy work, that it was "not very hard at all because you're keeping your body straight". In contrast to the defendant's system, however, "actually bending over and picking up rails is a very hard job".
In cross-examination, Mr Simpson agreed that providing a hook so that the worker can stand close to upright places little stress on the lumbar spine and is "a very satisfactory way … of reducing the risk of injury to the lower back". He also agreed in a series of questions that, if the plaintiff did not have to bend or arch his back in any way when using the hooks, there would have been "far less strain on his lower back" with "far less risk of injury to lower back". Mr Simpson was asked:

[32]

Mr Simpson's evidence in chief was primarily based on the assumption that the system employed by the defendant was that described in the plaintiff's evidence. He agreed in cross-examination that the system that Mr Dawes described carried with it far less risk of injury than what he had been "initially asked to assume" based on the plaintiff's account.
The jury was therefore entitled to conclude that, although the defendant's system involved a risk of injury that could have been eliminated with a different system and that the plaintiff would not have been injured under such a system, the probability of injury under the defendant's system was small, much smaller than under the "new system". Moreover, defective though the defendant's system was, it was improbable that the plaintiff would have sustained his injury if he had continued to use it. Indeed, if the jury had been properly directed on the issues of reasonable response and causation in accordance with Shirt[8] and many other cases, it may not have found any negligence, once it rejected the plaintiff's evidence. But, however that may be, the jury was entitled to conclude that the plaintiff's lack of care for his own safety bore a greater share of the responsibility for his damage than the defendant's breach of duty in using the hooks system. While the defendant's negligence exposed the plaintiff to a risk of injury, that risk had never eventuated. In contrast, the plaintiff's "new system" not only exposed him and Mr Dawes to a greater risk of injury than the defendant's system but the risk quickly translated to injury. Most importantly, the defendant had specifically warned the plaintiff against doing the very thing that caused his injury. In these circumstances, it is impossible to conclude that the jury acted unreasonably in finding that it was just and equitable to reduce the damages recoverable by the plaintiff in respect of his injury by 60 percent. The jury was entitled to conclude that in the circumstances of the case the plaintiff's conduct in using a system that required the bending of his back - although he had been specifically warned against it when he had done it previously - was a greater departure from the standard of care for his safety than the defendant's departure from the standard of care required of an employer.
The plaintiff sought to rely on the case of Bankstown Foundry Pty Ltd v Braistina[9]. Apart from the fact that it is a lifting case, the present case has nothing in common with Braistina. Braistina was a case where the injury occurred on the defendant's premises and where a hoist was available for the lifting, if needed. Two issues arose in Braistina. First, whether the defendant was negligent. Second, whether the majority judges in the Court of Appeal - who included myself - had erred in describing the content of the employer's duty. This Court unanimously held that the defendant was negligent in requiring the employee to lift pipes without directing him that this should be done only by using a hoist. The Court upheld the trial judge's finding that lifting and twisting were involved in the system and that it carried an inherent risk of injury. On that finding, the Court held that the trial judge was also correct in finding that the plaintiff should have been directed to use the hoist as the exclusive method of lifting the pipes. The Court also criticised the majority judges in the Court of Appeal saying that a trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker. Nor should the judge approach that issue on the basis that the standard of care for an employer "had moved close to the border of strict liability[10]".
Braistina has nothing to say concerning apportionment or contributory negligence. It emphasises that the employer's duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time. Juries, with their knowledge of the working conditions in their communities, are probably in a better position than judges to determine whether an employer has breached the duty of reasonable care that it owes to an employee and whether an employee has taken reasonable care for his or her safety. At all events, there is no ground for supposing that judges - including appellate judges - are in a better position to decide these matters than juries are.

[36]

On the evidence, as I have indicated, it would have been open to the plaintiff to make a case that the defendant should reasonably have foreseen these matters and that, given the available alternatives, its conduct was negligent in not reducing or eliminating the risks that arose from them. But they formed no part of the plaintiff's case against the defendant, no part of the finding of negligence against the defendant, no part of the relevant "fault" that is the basis of the s 10 assessment. Moreover, if these matters had been left to the jury, the jury could reasonably have found for the defendant on each of them. Because that is so, the Court of Appeal erred in apportioning responsibility on a theory of the plaintiff's case and the defendant's fault that had never been litigated by the parties. It substituted its view of the facts, based on its view of the transcript and without reference to the respective cases of the parties at the trial.
Indeed, their Honours went so far as to say "in any event what the [plaintiff] did was inadvertent on his part. That is, so far as the evidence shows, the [plaintiff] did not foresee or even turn his mind to the possibility that the modified system he adopted carried a risk of injury." This statement overlooked that the plaintiff defied the instruction not to bend his back although he had been warned against it when the charge hand saw him doing it. The statement also overlooked that the plaintiff abandoned lifting the rails by hooks - a method that kept his back straight. Instead, he introduced a "new system" involving manual lifting and lowering of the rails for two feet rather than two or three inches. Without hooks, the bending of his back while lifting and lowering was inevitable. Indeed he was "again bending down" when he tried to lift the rail and was injured even though he had been specifically warned against bending his back when he had done so while lifting the rail only two or three inches.
It follows that the Court of Appeal erred in setting aside the jury's apportionment of the damages.

[48]

The only ground of appeal in this Court is that the Court of Appeal erred in substituting an assessment of 20% for contributory negligence for that of 60% by the jury.
In this case a properly instructed jury did exactly what the apportionment legislation required them to do, to apportion negligence between the parties on a just and equitable basis[16]. It was not for the Court of Appeal to substitute its own opinion for that of the jury. Nor was it for the Court of Appeal to do so on the basis upon which the majority did, a basis neither pleaded, litigated, nor the subject of a ground of appeal. That basis was that the appellant failed to foresee, or even to turn its mind to the possibility that the respondent might disobey his instructions and modify the system of work to a method carrying a risk of injury.
The instructions given to the respondent were given for the precise reason that their implementation would eliminate, or greatly reduce the risk of injury. The jury's verdict was, if anything, generous to the respondent in the circumstances of his flagrant disregard of the instructions which were given to him for his own protection. The conclusion of Meagher JA that the appeal should have been dismissed is, with one qualification, correct. No attention was paid to it in argument in this Court, but there was apparently a concession by the appellant in the Court of Appeal, that in entering judgment the trial judge did not make proper allowance for the deduction to be made from the damages in respect of workers' compensation received by the respondent. That matter leaves questions of the net amount for which judgment should be entered and of costs for the Court of Appeal still to determine.
The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury's view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain. A jury is uniquely well qualified to decide, to use the language of Mason, Wilson and Dawson JJ in Braistina[17] "[w]hat is considered to be reasonable in the circumstances of the case [according to] current community standards."
We would allow the appeal with costs and order that the matter be remitted to the Court of Appeal to be dealt with in accordance with these reasons.
KIRBY J. This appeal[18] follows a jury verdict in an action in which an injured worker sued his employer for damages. The claim was framed in negligence at common law. The employer contested liability. It pleaded contributory negligence. The jury found for the worker but upheld the defence of contributory negligence. They apportioned the worker's responsibility at 60%[19].
The worker appealed against the judgment that followed the jury's verdict. By majority, the Supreme Court of New South Wales (Court of Appeal) upheld the worker's appeal[20]. It set aside the jury's apportionment. It substituted its own apportionment that the worker was 20% responsible for the damage which he had suffered. From this judgment, the employer, by special leave, appeals to this Court.

[60]

Once the Court of Appeal decided that the jury's apportionment was unreasonable in the applicable sense, it was authorised by law[44] to set aside the judgment giving effect to that apportionment. It might then have ordered a retrial of the question of apportionment before a second jury. Alternatively, where the parties consented or where it was appropriate to avoid a multiplicity of trials, that Court was entitled to substitute its own "verdict"[45]. There was no contest that, in this case, substitution of a different apportionment was within the Court of Appeal's powers. There was no challenge to the decision that a second jury trial should be avoided by the Court of Appeal making its own orders. In making such orders, the Court of Appeal would not be bound by the suggestions which were put to the jury by counsel for the parties, recorded in the primary judge's charge to the jury[46]. However, the Court of Appeal's apportionment would have had to take into account (a) the case for the worker on negligence viewed in its entirety (which, it must be inferred from the verdict in his favour, the jury accepted); (b) the view of the evidence relevant to contributory negligence accepted by the Court of Appeal itself; and (c) the applicable principles of law governing employer liability and contributory negligence. Inevitably, an appellate court would be more knowledgeable than a jury concerning the law governing an employer's liability to its workers and about conduct that may amount to contributory negligence on the part of a worker. There is no point complaining (as the employer did) about the appellate court's substitution of its own decision for that of the jury, unless that complaint is based on a ground of appeal objecting to the Court of Appeal's failure to order a second jury trial. There is no such ground of appeal. Once the Court of Appeal found that it was authorised to intervene, and that it should substitute an apportionment for contributory negligence according to its own opinion, it was bound to exercise its own powers. Necessarily, when the Court of Appeal proceeded to act in this way it was entitled to take into account the applicable law of employer liability and contributory negligence. That knowledge would necessarily contribute to an appellate court's view of what was "just and equitable" in the particular case.

[62]

It is now necessary to state in more detail the facts relevant to the issue before this Court. The main facts were undisputed. The jury's verdict was that Liftronic Pty Ltd (the appellant) was liable in negligence to its worker, Mr Erol Unver (the respondent) and that his damages should be reduced by 60% having regard to the respondent's responsibility for his own injury.
The respondent was injured on 20 February 1995 in the course of his employment with the appellant. He had been working for the appellant for four months. He was an experienced worker. For many years he had worked as a lift engineer and lift mechanic. At the time of the respondent's injuries, the appellant was a contractor for the installation of a new lift in a Sydney hospital. The installation required the positioning of a number of steel rails in the lift shaft, against which the new lift would ascend and descend. The rails were about 5 metres long. Each weighed 111.5 kilograms. They had been delivered to the ground floor of the construction site by crane. They had then been moved mechanically to the first floor of the building site in bundles of ten. They were there placed against a wall adjacent to the lift shaft, awaiting installation.
On the Thursday before his injury, the respondent was detailed to clean and paint the rails in preparation for their use. This obliged him to remove a rail from the stack and to put it onto supporting timber beams. So positioned each rail was elevated about 2 inches (approximately 5 cm) from the floor. This involved using lifting hooks (a type of fixed bar with a hook at one end) to move each rail manually a few metres from the stack, cleaning and painting it and then using the hooks to remove the cleaned and painted rail. The rails were moved manually one at a time. The process of cleaning and painting each rail took between fifteen and twenty minutes. The respondent performed these tasks under the instruction of Mr Troy Carson, a charge hand or foreman who was his immediate superior. He was assigned one assistant. The lifting, cleaning and painting duties kept the respondent busy on the Thursday and Friday preceding his injury. On the day of the injury, a Monday, he was assisted by an apprentice, Mr Shane Dawes.
According to Mr Dawes' evidence (which the jury must be assumed to have accepted), the respondent at some time during the morning said that he was "fed up" with the constant bending and wanted to lift the rails to a better height. He "went across and got a scaffold frame which is about a couple of foot [sic] off the ground". He "told me [that] we were going to be picking them up and putting them up on [the scaffold frame] so there [would be] no more bending involved in painting".
Obviously, the system of work devised by Mr Carson subjected the respondent and his co‑worker to manipulating and carrying the rails, although they were of very great weight. It was common ground that no mechanical device was provided for this purpose. Mr Dawes, who was called by the appellant, agreed that it was easier to paint the rails when they were in the slightly elevated position on top of the scaffold frame. However, he said "it wasn't easy when you were lifting them though". He stated that using the hooks provided by the employer was "very easy work" and that doing so kept the user's body straight. But he continued that "actually bending over and picking up rails is a very hard job". He had heard Mr Carson on one occasion tell the respondent "[y]ou are lifting incorrectly, bend your knees and don't bend your back".
The respondent, in his case, called a consulting mechanical engineer (Mr Colin Simpson) who had extensive experience in the manual handling of heavy objects in industry. The appellant did not call expert evidence. Mr Simpson's testimony was therefore uncontradicted. It is appropriate to assume that the jury, acting reasonably, accepted at least the main parts of Mr Simpson's evidence. No other view would appear consistent with the jury's verdict in favour of the respondent on the contested issue of negligence.
Mr Simpson stated that, for practical purposes, the respondent and his assistant, in lifting each rail, were each subjected to lifting 55 kilograms. That figure assumed that the weight of each rail was evenly distributed at all times. Commonsense suggests that this might not necessarily be so. Mr Simpson deposed that, according to standards or guidelines currently recommended in industry in Australia, the "absolute maximum" for safe lifting for any one person was 39 kilograms "under ideal conditions". Such conditions involved the assumption that the person engaged in the task "bends their knees, keeps a straight back, [and] there is no twisting or [other potentially dangerous] contortions". Subjecting a human being to such weights should be confined to "a once per eight hour basis". Accordingly, the system of work devised by the appellant for the respondent with one assistant was, according to Mr Simpson, "well and truly over [the absolute maximum] and there has to be a real risk of injury and specifically a back injury".
The work on each rail involved its initial removal from the stack, lifting it onto a support, cleaning and painting it and then removing it from the support and placing it elsewhere. These tasks occupied a period of fifteen minutes or longer with each rail. In Mr Simpson's view, the series of manoeuvres took the weight of the rail over the amount to which the respondent's back should safely be subjected "as far as industry is concerned". Such safe weight was "something of the order of 35 kilograms". This amounted to a discounted absolute maximum weight. It was an estimate put forward upon the assumption that the person involved had been trained in lifting. Alternative methods for performing such work would have involved using more than two workers or providing a mechanical alternative which would certainly have been preferable. Mr Simpson stated that there were hundreds of variations of overhead lifting devices. These ranged from block and tackle gear to electrically or pneumatically operated chain blocks and mobile cranes. The latter were commonly found throughout industry and used for the kinds of task to which the respondent was assigned by the appellant. Such devices did not have to be fixtures of the building site in question. Some of them were capable of moving in and out of a building site. Presumably they could be hired. A view that, to impose the obligation of hiring or supplying a mechanical crane to assist the workers, including the respondent, in the manoeuvres described would be unduly expensive or inconvenient[48] betokens, in my opinion, a bygone attitude to the imposition of unreasonable weight‑bearing tasks on Australian workers. Such a view is not, in my opinion, an attitude that should be attributed to the jury in the present case, reasonably evaluating the evidence at trial.
Mr Simpson agreed that the use of a lifting hook by a worker, standing close to the rail, subjected the worker's lumbar spine to little stress and was a satisfactory way of reducing risk of back injury. Use of that method alone would certainly have obviated bending and crouching whilst positioning the rail for cleaning and painting, and thus impose far less risk of injury to the lower back. Nevertheless, the ultimate weight of the object was still unarguably (according to Mr Simpson) "very significant". Even in an ideal lifting situation, the actual weight to be borne was "approaching double the maximum recommended".
In relation to the respondent's initiative to lift the rail onto a slightly elevated platform, Mr Simpson stated that the system of work instituted by the appellant would have involved the respondent in cleaning and painting the rails whilst continuously bending over them, virtually at floor level. This had the potential "for it to be very fatiguing of back muscles and causing backache and secondly, the positioning of the rail on the floor must be carried out by some means and if that's done manually down [on] the floor level then the risk, in my view, is even greater than it would be [on] the ... scaffold". In Mr Simpson's view, there was no practical difference in the strain to the lumbar spine involved in lifting the rail onto the timber beams and lifting it a greater height onto the scaffold. Even if the rails had been lifted by the respondent onto the timber beams (just off the floor surface) he would have had to manoeuvre them by turning them for the purpose of cleaning and painting them. This would have had him in a position of constant crouching or bending at an acute angle for most of his working day. Such posture would be interrupted only by the actions necessary to remove and replace a completed rail. Viewed in this way, according to Mr Simpson, the entire activity to which the respondent was assigned had a potential for back injury.

[73]

It is true that this direction represented a rather telescoped version of the respondent's case. So much is demonstrated by the extracts that I have quoted from the transcript. But a judge's charge to a jury responds to the way the judge perceives the final issues. It is a fair inference that the primary judge in this trial concluded that the appellant was not energetically pressing its formal defence that negligence on its part had not been proved. Quite often in cases such as this an employer will wish to terminate its workers' compensation liability by seeing a person such as the respondent recover a verdict - but a modest one. The primary judge appears to have inferred that this was the way that the appellant had conducted its case. This helps to explain his somewhat cursory treatment of the issue of negligence. It has loomed larger in this Court than in any earlier stage of the proceedings.
No complaint was made, either before the Court of Appeal or before this Court, about the primary judge's instruction to the jury concerning contributory negligence or apportionment. The instruction was accurate so far as it went. It reminded the jury that it was a "very relevant consideration" that it was the appellant, as employer, that provided the place of work and the system of work and the work which the respondent was being called upon to perform[52]. The charge also asked the jury to consider "the extent to which you find each of them to have departed from the standard of care of the reasonable person and the cause and effect of the conduct of each party in what occurred"[53].
The last‑mentioned instruction to the jury carried some dangers for the respondent that were not explored in the Court of Appeal and not raised in this Court either by notice of contention or cross appeal. The respondent owed no relevant legal duty of care to his employer[54]. The appellant, on the other hand, as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks[55]. This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated[56]. In this sense, explaining the standard of care expected of an employer in terms of the conduct of "the reasonable person" may have understated the very heavy duties that the law in Australia casts on an employer[57]. Such duties include affirmative attention to the issue of accident prevention. So much was held by this Court in McLean v Tedman[58] and re‑affirmed in Bankstown Foundry Pty Ltd v Braistina[59].
Braistina is not irrelevant to the issue in this appeal[60]. That case involved a worker, a metal machinist, who had suffered a serious back injury in the course of drilling holes in, and manually stacking, heavy metal pipes (each weighing 60 pounds or 132 kilograms). His injury was sustained while he was lifting one of the pipes in a manner which, the employer claimed, was contrary to the method it had instructed the worker to use. But in that case, unlike the present, a mechanical hoist was available for use by the worker but was not often called on by employees. The finding by a judge of contributory negligence, assessed in that case at 10%, was not even challenged. The duty of accident prevention was held to be "unquestionably one of the modern responsibilities of an employer"[61]. It was underlined by all members of this Court[62]. Indeed, all were at pains to point out that similar ideas had been expressed by members of this Court for some time[63]. The decision is pertinent to this appeal because, without having a clear idea of what the law requires of an employer, including in discharging its duty of accident prevention, it is impossible to begin a reasonable approach to the ascertainment of the "just and equitable" apportionment of the employer's "share in the responsibility for the damage"[64]. The higher the employer's legal duty the less it would be "just and equitable" to burden the employee for established breaches which the employer was bound to prevent.
When regard is had to the decisions of this Court on the subject of contributory negligence in an employment context, it is indisputable that reasonable care by an employer in Australia today requires "allowance to be made (in relation, eg, to a safe system of work) not just for inadvertence, misjudgment or inattention but also for neglect, carelessness and sometimes even foolishness or misconduct on the part of employees - including skilled and/or experienced employees"[65]. Indeed, the cases that support these propositions suggest an increasingly "forgiving" attitude by the courts toward errant employees in their approach as to what constitutes contributory negligence and the related apportionment of responsibility[66].
Inattention born of familiarity with a repetitious task, absorption in work functions and mistakes caused by fatigue or severe discomfort may not even constitute contributory negligence at all. Still less would they ordinarily warrant a most substantial reduction in the damages to which the employee is otherwise entitled for the consequences of the employer's negligence[67]. The same is true if the employee lacks appreciation of the danger to which the place or system of work exposes the employee[68]. Employers, acting reasonably, must provide a safe system of work for the average worker and "not a system which is safe only for persons of superior skill whose attention never wanders"[69].
Another consideration, not irrelevant in determining the existence and extent of contributory negligence where an employee has departed from a system of work established by the employer, is whether this was done defiantly, obdurately or stupidly for some personal purpose of the worker's own. Or whether it was done out of a misguided, but understandable, endeavour on the part of the worker to fulfil his or her employment duties in a reasonable way. The former category of case will indeed permit a conclusion that the employee has contributed, by his or her own negligence, to the damage suffered. It may then be perfectly "just and equitable" to reduce significantly the worker's recovery "having regard to the claimant's share in the responsibility for the damage". But, in the latter category of case, any such reduction, to be "just and equitable", will have to take into account the fact that the worker was exposed to the risk that caused the damage in the course of pursuing the employer's economic interests in which the risks of injury to workers are part of the employer's necessary costs[70].

[74]

In the Court of Appeal, Meagher JA dissented. His Honour considered that the case was "entirely covered"[71] by the decision of this Court in Podrebersek. With every respect, contributory negligence, and apportionment, are always questions of fact[72]. The invocation of a decision of this Court, in an earlier case on different facts, could not relieve the Court of Appeal of the proper discharge of its functions by reference to the facts of this case.
The second reason which Meagher JA assigned for his dissent was that he could not see how the jury's apportionment of 60% here was "in any way more perverse than the judges' apportionment of 90% in Podrebersek ... nor indeed of Brownie AJA's apportionment of 20% in this case"[73]. So far as the first stated apportionment (that in Podrebersek) is concerned, it is, again with respect, irrelevant. There are factual differences between the two cases. Appeals must be decided by reference to legal principle, not perceived factual similarities. So far as the second (the 20% favoured by the majority in the Court of Appeal) it is also irrelevant. Once the Court of Appeal concluded that it was entitled, and obliged, to set aside the jury's apportionment, it was required to order retrial of the issue or to determine its own apportionment. Complaining that it did so, after it had so decided, was therefore mistaken. Furthermore, referring to a criterion of "perversity" (as distinct from lack of reasonableness in the entirety of the evidence) was likely to mislead and to overstate the restraint upon appellate correction of a disclosed error[74].
The reasons for the majority in the Court of Appeal were given by Brownie AJA. His Honour (who is particularly experienced in this area of the law and practice) acknowledged that what the worker had done "constituted an unauthorised departure from the system [the employer] provided"[75]. However, he explained why, in his view, this departure was "plainly foreseeable" to the employer[76]. He did so in terms which I regard as entirely convincing. As I have demonstrated, his reasons addressed directly the aspect of the respondent's case which had been elicited in evidence[77]:

[77]

The conclusion of the majority in the Court of Appeal was therefore open to that Court, exercising its jurisdiction and powers. There is no indication of an incorrect approach. The requirement to observe the rule of restraint in cases of apportionment, but especially in an apportionment by a jury, was not ignored. The applicable principles were clearly in the minds of the majority.
On the undisputed evidence adduced at the trial, the system of work in which the respondent was engaged by the appellant was unsafe, and seriously so. This was because of the sheer weight of the steel rails which the respondent and his co‑worker were obliged to lift manually, work upon and then manually remove. The system was unsafe whichever method of work was used. Even if the respondent had adhered, without the slightest variation, to the method in which he was instructed by his superior, Mr Carson, he was still required to carry a weight repeatedly beyond what was reasonable. Moreover, he was obliged to spend most of his working day in a crouched and awkward position, painting and cleaning the rails that called forth his reasonable attempt to institute a better system of work. In default of a mechanical device, this led naturally to his attempt to elevate the rails in order to paint them.
The respondent did not act defiantly or disobediently, for some private object of his own. Such a characterisation of his conduct is, with all respect, unfair, even absurd. What he did was done in a reasonable pursuit of his employer's interests[80]. Moreover, it was only done because of the failure of the employer to devise, institute and enforce an appropriate and reasonable system of work in the first place. At most, the respondent's lifting of the rails involved momentary inattention to risks in his lumbar spine. The respondent had hardly received much support in that regard from his employer. The method of work instituted by the appellant was primitive. The instrument provided to the respondent and his assistant was akin to that used in the building of the pyramids. It was not part of a system appropriate to a contemporary Australian workplace. Perfunctory instruction to the respondent to bend his knees when lifting could scarcely discharge the heavy legal responsibilities resting on the employer. The more serious the risks, the greater the need for effective prevention[81]. Those in doubt of these propositions should read again what this Court said in Braistina[82].
Against the background of the Court's repeated statements about employers' duties of care and of accident prevention, and the proper approach to finding and assessing contributory negligence in that context, it is little wonder that the majority of the Court of Appeal, viewing all of the facts of this case, came to the conclusion which they did. With all respect to those of a different view, and taking the evidence at trial as it stood most favourably to the appellant's case, the attribution to this worker of one and a half times the responsibility for his injury to his back and consequent damage as compared to that of the employer, strikes me as completely alien to the proper understanding of negligence and contributory negligence in the modern Australian employment setting. As Brennan and Deane JJ remarked at the close of their joint reasons in Braistina[83]:

[79]

Where, considering an individual verdict (whether by a judge or a jury) an appellate court is convinced that the decision‑maker has ignored or underestimated the foregoing considerations and so has erred, it is entitled to intervene. This is what the legal procedure of appeal is for. The appellate court may do so for error in finding that contributory negligence has been proved. It may do so for error in deciding upon an apportionment which is manifestly not just and reasonable having regard to a worker's responsibility for the damage. The latter is what the Court of Appeal concluded in this case.
It has also been suggested that this conclusion was not open to the Court of Appeal because the respondent did not plead, litigate or make the subject of a ground of appeal, the possibility that he might "disobey his instructions and modify the system of work to a method carrying a risk of injury"[84]. With all respect, this is incorrect. The District Court of New South Wales is not a court of strict pleading. The appellant pleaded contributory negligence and the respondent, at trial, disputed this. That defence, in law, opens to argument the possibility that the employer will nonetheless be totally or mainly liable to the worker in circumstances of momentary inadvertence. The case books are full of such instances. I have referred to some of them. Specific pleading of that detail was not required. The issue was sufficiently raised once contributory negligence was contested. It was most certainly raised when, contributory negligence being found, a decision had to be reached about the extent to which it was "just and equitable"[85] to hold the respondent worker, and not the appellant employer, liable for the consequent damage. If in every case where an employer with an obviously defective system of work, could escape or minimise liability to its workers in negligence by what the appellant did here, the law of employers' liability in Australia would be substantially rewritten. Perhaps that is what is intended. But if so, it should be stated clearly and decades of this Court's authorities should be expressly overruled.
Not only were the Court of Appeal majority entitled to act as they did, their decision was, in my opinion, fully justified and correct. The contrary decision can only be sustained on a hypothesis of employer duties, and employee obligations, which turns the clock back to the unlamented past. I will not join in a restoration of unreasonable burdens on workers where employers have exposed them to the kinds of risks that, in this case, had such a foreseeable consequence for injury to the respondent's lumbar spine.

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