Macey v Macquarie Generation & Anor

Court of Appeal (NSW)|2008-12-09|Before: Beazley JA, Campbell JA, Per Beazley JA

Background facts 7 At the time of the accident, HIS Engineering was carrying out maintenance work for Macquarie at the Bayswater Power Station. The work required HIS Engineering's employees to access gas ducts in which maintenance work was being carried out, via a manhole. On the day of the accident, the appellant was working on the 4B Primary Gas Duct. The manhole comprised an opening, sometimes described in the evidence as a "doorway", in the vertical wall of the gas duct. The doorway measured 500 mm deep by 460 mm wide. 8 Access was gained by moving from a platform of a gantry on the outside of the duct through into the manhole. Immediately on the inside of the manhole opening was a sloping platform that met a one-step ladder. The drop from the bottom edge of the manhole to the step was 450 mm. The drop from the step to the internal floor was another 500 mm. 9 At trial, the appellant gave the following description of how he entered the manhole: "A. Firstly you'd slide along on your bum and put your--

Q. Where was your bum? A. On the decking outside and maybe a scaffold in-between, in-between the platform. You'd slide your feet through and you're like in this position, you'd duck around and grab with your arms.

Q. Grab what? A. There's another bar similar to that one, that's on the outside.

Q. So you'd shuffle your bottom along and put your feet up in the hold, is that right? A. Yes.

Q. Then you'd reach-- A. Reach through.

Q. And what was on the inside? A. Another handgrip bar like that.

Q. Like that one on the outside? A. Yes.

Q. Then what would you? A. You'd slide through and sort of like try and find where the - there's another bar where you put your feet on.

Q. Where's that located? A. About 550 mils off the floor, 600 mils off the floor inside.

Q. This is the normal thing you did, yes go on? A. Then you'd ease yourself through like that.

… A. Then you'd get in and you'd twist yourself around and you'd climb-- Q. Just stopping you there, when you got in had you normally got this ledge under your feet?

Q. Then what did you do from there? Was your head still outside at that stage? A. Yeah pretty much it'd be like your head would be in like the middle, you'd be like pulling yourself through and that would be like the doorway around you.

Q. So you are taking the weight with your upper limbs? A. Yes.

… A. You pull yourself through, then you twist yourself and turn yourself around and climb down like a ladder ...

Q. Why did you have to twist around? A. Because it's too far to just jump straight off inside." 10 His description of the accident, as recorded by her Honour at [29], was: "[The appellant] initially described the incident to the court in the following terms. He said he sat on the platform of the gantry and slid along on his buttocks. He put his feet through the manhole and, taking hold of the internal grab rail, slipped through and placed his feet on the footrest which he estimated was about 550 to 600 mm above the floor inside the manhole. He said it was then necessary to snake his body through the manhole. When his head was part way through the hole, he twisted and turned around so that he was facing the manhole intending to step down as if he had been using a ladder. He turned to his left to face the manhole and as he did so he let go of the grab rail with his left hand. His foot slipped from the footrest, jerking his right arm and dislocating his shoulder." 11 Her Honour noted, at [30], that this description was the subject of a number of challenges. She continued: "One such challenge related to the discrepancies in the previous descriptions he had provided to which I have already referred. Other challenges related to the feasibility of entering the manhole in the way he described, the way in which he exited the manhole after the alleged injury, his reasons for entering the manhole in the fashion described, the date upon which the incident occurred, the alleged failure to call witnesses to the incident, and the question of whether his shoulder was in fact dislocated in the course of this incident or at a later date." 12 Her Honour also noted, at [31], the appellant's concession in cross-examination that, "had he been turning to his left, it would have been necessary for him to release his right hand and not his left", as he had claimed. He also agreed that it would have been necessary to crouch with his knees bent as he released his right hand, to change the grip to his left hand, so as to face the manhole and to stand up before stepping down. 13 Macquarie contended that the usual way of entering the manhole was to do so in a forward direction, that is, with one's back against the sloping section of the manhole. The person entering would then place his feet on the footrest and step down into the duct. This method of entry did not involve turning or twisting the body so as to face towards the wall. Mr Enks, mechanical engineer, who, at the time of giving evidence was Macquarie's Asset Manager at the Bayswater Power Station, said that in his 25 years of employment at the power station, he had never seen anyone enter in any other way. Nor had he heard of any other injury occurring as a result of any person entering a manhole. He conceded, however, that persons "might do unusual things". A photograph in which this method of accessing the manhole was demonstrated was tendered at trial (Exhibit 13). 14 Mr Enks' evidence was contradicted by Mr Flaherty, the "hole watcher" on duty at the time the appellant sustained his injury. Mr Flaherty was employed by HIS Engineering and his duties included ensuring all personnel who had entered the duct also exited. His evidence was as follows: "A. Yeah, I worked in the power station for over them years [ie, from 2000] and been in and out holes myself, every single person goes into a hole differently. You know what I mean. Depending on your size, your weight, your flexibility. I mean, you know, they're not a huge hole sort of thing, so, you know, some blokes might have to get on their belly and slide backwards in there to find the steps on the inside. Some blokes swing in and sort of find their footing on the steps on the inside, twist around while they're in the hole, slide back down backwards. Other blokes, I've seen skinny blokes mate bend over and like lean forward and go through the holes and reach in and grab the handle on top too, you know what I mean. So, everyone's got their own way of doing it." 15 The trial judge rejected the appellant's case that he slipped on the footrest and that he had done so as he was turning to face the manhole. Her Honour held that the injury occurred when he twisted his body as he entered the manhole in a forward direction. 16 As the basis upon which her Honour rejected the appellant's case is subject to challenge, it is convenient to first deal with those grounds of appeal.

Grounds 2,3, and 4: rejection of the appellant's evidence that he slipped on a step as he turned to face the manhole 17 Her Honour's rejection of the appellant's explanation as to how the accident occurred was based on the following considerations. First, his version was substantially different from most of the histories recorded since the accident occurred. Secondly, there was no reference to this version in Dr Hill's report (Dr Hill was the expert retained by the appellant and had visited Bayswater Power Station with the appellant). Thirdly, it was highly improbable that the appellant entered the manhole in the manner he described. Fourthly, the appellant's initial explanation as to how the accident occurred had subsequently been invalidated. Finally, it was improbable that with an injury to his right shoulder of the severity claimed, the appellant would have been able to exit the manhole unassisted. 18 The appellant challenged the basis upon which her Honour reached the first of these conclusions. 19 Her Honour said that the first reference to the appellant having slipped was contained in the report of Dr Bracken, dated 28 July 2006, more than three years after the incident. Her Honour also held that the first reference to the appellant "turning in this fashion" was in the report dated 24 July 2007 prepared by Best Practice Rehabilitation, more than four years after the accident. 20 Dr Bracken recorded the following history as being provided by the appellant: "[The appellant] said he had to swing himself in legs first holding a bar with his arms. He said that as his body went through the hole he thinks he slipped and twisted on his right arm which was at that time he indicated abducted and externally rotated ." (Emphasis added) 21 Dr Bracken was the fifth doctor the appellant saw after the accident. There had been earlier consultations with Dr Posel, orthopaedic surgeon, Dr Noll, also an orthopaedic surgeon, Dr Beiers, consultant in rehabilitation medicine, who provided a medico-legal report to the appellant's solicitors and Dr Pillemer, orthopaedic surgeon, who provided a medico-legal report to Macquarie's solicitors. There was no reference in any of these reports to the appellant "slipping" or even the possibility of his having slipped on the step. In brief terms, they each recorded a history of twisting as he entered the manhole. 22 The appellant contended that her Honour's finding was incorrect because, in a letter from the appellant's solicitors to HIS Engineering dated 7 November 2003, the accident was described in these terms: "We understand that on that occasion [the appellant] was attempting to climb through a manhole when he slipped from the rungs on which he was standing and was left hanging by his arms. We understand that as a result of this [the appellant] suffered injuries to his right shoulder." 23 This description of the accident is reasonably close to the history recorded by Dr Bracken, although Dr Bracken only refers to the appellant having twisted on his right arm, whereas the letter referred to the appellant "hanging by his arms". 24 Her Honour did not refer to this letter in her judgment. The letter had been tendered during the course of final addresses specifically to counter Macquarie's argument that the appellant's evidence that he slipped was a recent invention. 25 The appellant submitted that her Honour's finding, that there had been no prior history of slipping, was unquestionably significant in the trial judge's reasoning in making an adverse credit finding against him. He contended that, given the challenge to the veracity of his account of the accident in his evidence, this early history in the letter of 7 November 2003 was crucial. He contended that had it been taken into account, her Honour's adverse credit finding could not have been made. 26 Macquarie conceded that her Honour appears to have overlooked the contents of the letter of 7 November 2003. It contended, however, that the absence of a history of slipping given to the other doctors was highly relevant and her Honour was entitled to make an adverse finding on that basis. Macquarie also contended that there were other factors which led her Honour to make the adverse credit finding, in particular, the absence of any reference to slipping in the reports of Dr Hill. 27 Dr Hill, a senior lecturer in engineering, provided two expert reports to the appellant's solicitors, both of which were tendered in evidence. Dr Hill's first report of 28 November 2006 was prepared after he had attended the Bayswater Power Station on 14 November 2006, with the appellant. Dr Hill recorded that whilst they were inspecting the manhole, the appellant described the actions of getting through it in the following terms: "[The appellant] had to sit on the edge of the platform with his feet protruding through the doorway. While holding on to the top of the doorway, he had to arch his back and move his body through the opening, while still supporting his weight with his grip on the top of the opening. He would then drop the metre or so to the inner floor surface.

It was while entering the opening on one occasion that [the appellant] suffered a shoulder injury as he was twisting his body through the doorway." 28 At [44(c)], her Honour noted that two explanations had been proffered for the absence in Dr Hill's report of any reference to a step, or to the appellant turning to face the wall: one, that Dr Hill had misinterpreted the information provided; or alternatively, that Dr Hill had not been told that the appellant had to drop a metre to the floor, or that he had twisted his body through the manhole. Her Honour found that these explanations were unconvincing and she rejected them. 29 Her Honour was correct in noting that there was no reference in Dr Hill's report to the appellant slipping on the step. In my opinion, the absence of a history of slipping, in circumstances where Dr Hill obtained the appellant's description of the accident whilst on site, was a significant omission, and one that her Honour was entitled to rely on in assessing the reliability of the appellant's evidence. 30 Her Honour also found that it was highly improbable that the appellant had entered the manhole in the manner he had described in his evidence, given the relative heights of the platform of the gantry and the bottom edge of the manhole. Her Honour considered that the appellant's initial explanations for adopting this method of entry were subsequently invalidated. Although her Honour does not explain this finding, it is undoubtedly a reference to her consideration, at [31], of the appellant's cross-examination to which I have referred above. That cross-examination effectively demonstrated that the appellant's description of the accident could not have been correct. 31 Her Honour also considered it was improbable, with an injury to his right shoulder of the severity claimed, that the appellant would have been able to exit the manhole without assistance. Her Honour considered this was especially so given the pre-existing weakness in the appellant's left shoulder. 32 These findings and inferences were open to her Honour on the evidence. Her Honour had been careful not to place too much reliance upon the history recorded by the doctors. Her Honour observed that a history given to doctors was often the result of the questions asked. She also observed that the appellant was not an articulate witness. She particularly noted that much of his evidence was given by way of physical demonstration and that it had only been through patient and detailed cross-examination that an appreciation could be gained, not only of what the appellant was describing in his evidence, but also of the shortcomings in that description. The combination of factors to which her Honour referred at [44], particularly Dr Hill's report and the effect of the appellant's cross-examination, provided compelling bases upon which to reject his evidence. Accordingly, even taking into account the nature of the appeal in this Court, that is an appeal by way of a rehearing: Supreme Court Act 1970, s 75A; Fox v Percy [2003] HCA 22; 214 CLR 118; the appellant has not established that her Honour's rejection of the appellant's case ought to be the subject of appellate interference. 33 Having reached that conclusion, it follows that her Honour's finding at [46] must stand, no alternative explanation having been proffered by the appellant as to how the accident happened. That finding was that, although the appellant twisted his body as he entered the manhole, he was entering in a forward direction, and the accident did not involve the appellant slipping on the footrest or turning his body to face the manhole. For reasons that may be explained briefly, that finding is fatal to the appellant's appeal. 34 The only ground of negligence upon which reliance was placed on the appeal was that there had been a failure to instruct the appellant as to a safe manner in which to enter the manhole. The Court pressed the appellant's senior counsel to state what instruction ought to have been given. The response to this was to rely upon the method demonstrated in the photograph, Exhibit 13. That photograph depicted the manner in which Mr Enks said was usual to enter the manhole. It is the manner in which her Honour found that the appellant was entering the manhole at the time of the accident. Accordingly, as on her Honour's finding the appellant was entering the manhole in the manner in which it was suggested on the appeal he ought to have been instructed, he has not established that the failure to give any instruction caused the injury. For that reason alone, the appeal should be dismissed. 35 Macquarie submitted that, in any event, the appellant's case on absence of instruction never went beyond establishing that instruction had never been given. It was pointed out that at the hearing, the appellant, either himself, or through Mr Flaherty, or by any expert evidence, did not prove, or even set out to prove, what instruction ought to have been given. This submission was well made, and is underscored by the fact that the first time any form of instruction was articulated was by senior counsel on the appeal. 36 Macquarie also submitted that it was relevant that the appellant said he did not need any instruction on how to enter the manhole. That is not determinative of whether Macquarie breached its duty of care to the appellant by failing to give an instruction. A person may not perceive that there is a risk of injury by undertaking an activity in a particular way and that may be the very reason that person needs either to be warned of such risk, or to be instructed as to how to engage in the activity. However, the appellant's evidence is not irrelevant, as I explain below. 37 Macquarie next submitted that this is not a case where an instruction was required, as was apparent from Mr Flaherty's evidence reproduced above at [14]. Macquarie contended that Mr Flaherty's evidence was proof positive that a decision on how to enter into the manhole was an ordinary matter for persons regularly engaged in that activity. Accordingly, no warning or special instruction was required. The task was "so simple and obvious a matter requiring neither special skill [nor] knowledge to decide and ordinarily treated it as a matter for the man doing the job": see O'Connor v Commissioner for Government Transport [1954] HCA 11 at [5]; (1954) 100 CLR 225 at 230. In O'Connor, the Court pointed out, at 229 [4], that an employer owes a duty to take reasonable care for the safety of its workers: "… by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury ." (Emphasis added) 38 The point of Macquarie's submission was that there were no unusual or unexpected risks related to the manhole or the means of accessing it, and thus there was no need for instruction. The structure of a manhole is such that the means of accessing it are limited. However, there was no suggestion that there was anything unusual about this manhole. Further, the step was positioned appropriately between the entrance to the manhole and the floor. The step itself was flat so that it did not provide any risk of inadvertent slippage, as might have been the case if it was, for example, cylindrical. 39 Further, neither the appellant, nor any of the witnesses, including Dr Hill, said that the access to or the structure of the manhole were such that instruction was needed on the safe means of accessing it. The appellant gave evidence that he did not need instruction, but as I have indicated, that evidence is not determinative as to whether instruction was required. However, if the persons using the manhole on a regular basis regarded the task of accessing it as an ordinary matter for which no warning was required, and if there was no unusual risk in what was otherwise considered to be an ordinary task, it is unlikely that instruction was necessary. 40 The statement in O'Connor was made in the context of employer and employee. Nonetheless, it is applicable to Macquarie's duty as occupier, given that the manhole was part of an installation owned and operated by it. For the reasons I have given, this is not a case where instructions were reasonably required to be given. 41 This conclusion also disposes of the appeal. However, I will deal briefly with the other matters raised on the appeal.

Did her Honour err in finding that the injury was not reasonably foreseeable? 42 Her Honour's finding in respect of foreseeability was contained at [83]-[85]. At [85], her Honour found it was not reasonably foreseeable that in the course of accessing the manhole the appellant, when twisting his body, "was at risk of injury": see also [93]. Her Honour also found, at [94], that a reasonable person in the position of Macquarie might reasonably have decided that it was "not necessary to take action to address any risk involved in passing through the manhole". 43 The appellant complained that those findings are inconsistent with other findings concerning the absence of instruction. In other words, having found that no instructions had been given, her Honour should have concluded that it was reasonably foreseeable that some injury might be sustained when accessing the manhole. As I have already determined that Macquarie's duty of care did not call for it to provide instructions, this submission should be rejected. 44 It was further submitted that in any event, her Honour's consideration of foreseeability was plainly wrong. 45 At [84], her Honour set out seven matters which led her to conclude it was not reasonably foreseeable that the appellant was at risk of injury. Those findings were as follows: "(a) Bayswater Power Station was constructed over 20 years ago.

(b) Each of the four boilers was shutdown in rotation at two yearly intervals.

(d) Similarly designed manholes were in service in other NSW power stations and throughout the world.

(e) Other than the claim brought by [the appellant], there had been no reports of injury to personnel using the manholes at Bayswater Power Station.

(f) The manholes had been used thousands of times without incident.

(g) Risk assessments were undertaken by contractors and safety audits were undertaken by [Macquarie] for the purposes of shutdown work without identification of any risks involved in assessing the primary gas ducts through the manholes." 46 The appellant submitted that those factors only go to the probability of the risk eventuating, not to the foreseeability of risk of injury from twisting in terms of whether such a risk was far-fetched or fanciful. It was submitted that it was a matter of commonsense that inappropriate bending and twisting may cause injury and that the absence of any incident in which a risk eventuated, even over a long period of time, was not determinative of the foreseeability of the risk. The appellant said the absence of previous incidents might be relevant in identifying what was required to reasonably respond to the risk. However, he wrongly stated the accepted test of foreseeability as formulated in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. In the Court of Appeal decision in that case Glass JA had used the now famous expression that foreseeability was an "undemanding test": Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641. 47 However, in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Heydon JA (as his Honour then was) observed, at [66], that the test for foreseeability of risk now had: "… a different and more demanding operation where simple uncomplicated operations by an employee within the normal system of work are concerned, for the reasons explained in … O'Connor's case …"

His Honour noted that the position could not be different for independent contractors. To that may be added occupiers. In any event, as recent High Court authority has emphasised, it is usually not useful to merely refer to a generalised " duty of care ": see most recently Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647. Rather, it is the content of the duty that needs to be determined in order to assess whether or not there had been a breach of that duty. Macquarie, as occupier of the premises, had a duty of care to the appellant. However, I am of the opinion that the matters enumerated by her Honour were relevant considerations in determining the content of that duty. Given those matters, that content did not require Macquarie to provide instruction as to how to access the manhole. 48 As I have concluded that Macquarie is not liable to the appellant, it is unnecessary to consider the questions of contribution between it and HIS Engineering.

The cross-appeal 49 Macquarie, by way of cross-claim, alleged that HIS Engineering had breached the agreement the parties had entered in relation to undertaking maintenance work at the Bayswater Power Station. Macquarie submitted that HIS Engineering failed to obtain a policy of insurance covering Macquarie's liability to any third party for personal injury during the period that HIS Engineering had been contracted to work at Bayswater Power Station. 50 HIS Engineering admitted liability at an early stage of the proceedings and made two offers to Macquarie in respect of the cross-claim. One offer was that HIS Engineering would take over the carriage of the substantive proceedings on behalf of Macquarie and fully indemnify Macquarie in respect of any judgment, including as to costs in favour of the appellant. The details of that offer are recorded in a letter dated 4 October 2007, from HIS Engineering's solicitors to Macquarie's solicitors. 51 Senior Counsel for HIS Engineering informed the Court that the offer referred to in the letter was made at a settlement conference held between the parties on 6 September 2007. The settlement conference was held shortly after pleadings had closed on the cross-claim. The history of the pleadings was as follows. The cross-claim was issued on 24 April 2007. HIS Engineering filed its defence to the cross-claim on 8 June 2007. On 27 June 2007, Macquarie was granted leave to file an amended statement of cross-claim and on that day, the proceedings were listed for a five day hearing commencing on 8 October 2007. HIS Engineering served its amended defence to the amended cross-claim on 8 August 2007. The settlement conference was held on 6 September 2007. 52 On 4 October 2007, HIS Engineering made an alternative offer, that it settle the cross-claim in the sum of $30,000 inclusive of costs. 53 Senior counsel for Macquarie submitted that it was reasonable for Macquarie to reject the offers, because it wanted to ensure for itself that the proceedings were conducted so that liability as between itself and HIS Engineering was appropriately looked after. However, in circumstances where HIS Engineering offered to fully indemnify Macquarie, including in respect of liability as well as costs, this argument must fail. In the circumstances, the cross-appeal should be dismissed with costs. 54 I propose the following orders:

Cross-appeal dismissed with costs. 55 CAMPBELL JA: I have had the advantage of reading the reasons for judgment of Beazley JA. Subject to one matter on which I reserve my opinion, I agree with her Honour's reasons. The reservation concerns para [47] of her Honour's reasons. I would prefer to leave for the future any consideration of the interrelationship between the concepts of duty of care, content of the duty, and breach of the duty. It suffices for the decision of the present case that Macquarie's duty as occupier did not require it to provide instruction to an experienced worker such as the appellant, concerning as ordinary an incident of his work as entering the manhole involved in this case. 56 I agree with the orders proposed by Beazley JA. 57 GYLES AJA: I agree with the reasons and orders of Beazley JA. **********

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.

CITATION: Macey v Macquarie Generation & Anor [2009] NSWCA 79

Fox v Percy [2003] HCA 22; 214 CLR 118 Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647 CASES CITED: O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

LOWER COURT MEDIUM NEUTRAL CITATION: Macey v Macquarie Generation and HIS Engineering Pty Ltd [2007] NSWDC 242

Supreme Court Act 1970, s 75A (cited) Fox v Percy [2003] HCA 11; 214 CLR 118 (cited)

O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 (applied)

Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647 (cited) O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 (cited) Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 641 (cited) Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 (applied) Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (cited)

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Cases Cited (11)

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