Madden v Kingston Industries

CATCHWORDS: NEGLIGENCE - employee injured his back when he emptied water from wheelbarrow - whether employer breached its duty of care to provide a safe system of work - proceedings involved two causes of action - cumulative effect of strenuous effort over a period of weeks and failure to train employee in proper use of wheelbarrow - employer failed to consider reasonable steps which could have been taken to remove or minimise forseeable risks of injury - whether retrial should be refused on the basis that even if total claim divided equally between the two causes of action, the appellant would not reach the threshold in s151G(4) of the Workers Compensation Act 1987 (NSW) or that neither cause of action caused injury greater than 17% of a most extreme case.

LEGISLATION CITED: Workers Compensation Act 1987 (NSW)

Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 CASES CITED: Woolage v State of New South Wales [2001] NSWCA 256

Mark Madden (Appellant) PARTIES: Kingston Industries Pty Ltd (Respondent)

Ms S. Norton SC/Ms E. Welsh (Appellant) COUNSEL: Mr E Elkaim SC/Mr A.B. Parker (Respondent)

Bryden's Law Office (Appellant) SOLICITORS: Lander & Rodgers (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40626/2004 DC 1322/2001 DC 13288/2001

HANDLEY JA BASTEN JA YOUNG CJ in Eq

13 December 2005 MARK MADDEN v KINGSTON INDUSTRIES PTY LTD Judgment 1 HANDLEY JA: I agree with Basten JA. 2 BASTEN JA: On 12 May 2000 the Appellant, Mr Mark Madden, suffered a back injury at work, whilst emptying water from a wheelbarrow. He made a claim for damages against his employer, based primarily on the nature and conditions of the work he was required to undertake. 3 In the District Court, the trial judge accepted that he had suffered an injury in the course of his employment, but was not satisfied that his injury resulted from a breach of duty by the employer, the Respondent in this Court. 4 The course of employment required, over a period of some two months, heavy physical labour. The work required the digging of trenches, the laying and cementing of underground piping and the refilling of the trenches. The work was to be undertaken at an electricity substation, with the result that there were limitations on the use of mechanical equipment and water hoses. The only tools used by the Appellant were a pick, a shovel and a wheelbarrow. From approximately April 1996 until May 2000, some four years, the Appellant had been involved in labouring work for the Respondent. None, he said, was as heavy as the work required at the power substation. 5 Prior to the commencement of the work, the Respondent undertook no risk assessment, for occupational health and safety purposes, nor did it provide any training or instruction to the Appellant as to how to go about his work. 6 Other labourers were involved in digging the trenches, with, on occasion, the assistance of a backhoe. The trenches measured approximately one and a half metres across and were between one metre and two metres deep. There was at least one other labourer working on the site with the Appellant, although it appeared that they largely worked on their own, except when it was necessary to move the larger 300mm pipes into position, each of which weighed 80kg. The smaller gauge pipes, each of which came in four metre lengths weighing approximately 28kg, were moved by the Appellant alone. The case for the Respondent, which was accepted by the trial judge, was that there was "nothing special or extraordinary about a pick, shovel or wheelbarrow" nor was there anything "difficult or dangerous in their use": Judgment at [37]. Accordingly the Appellant did not need to be trained in their use, did not need to be told that he should pace himself and work within his capacity and did not need to be supervised. He gave judgment for the Respondent. 7 The injury which caused the Appellant to stop work on 12 May 2000 arose from the act of emptying water from a wheelbarrow by tipping the barrow to one side. The Appellant's case before the trial judge was either that this was itself an inherently dangerous act which caused his injury, or that the injury resulted from the accumulative effect of similar acts, together with some eight weeks of heavy labouring, during the last four weeks of which he had been suffering from a "sore back". Before this Court, emphasis was placed on the latter, cumulative effect, complaint. 8 Because the trial judge found that there had been no breach of duty, he was not required to assess damages which might otherwise have been recoverable, and did not undertake that exercise. According to an affidavit by the Appellant's solicitor, filed in this Court, the claim for damages was in an amount exceeding $450,000. To recover amounts by way of non-economic and economic loss, the Appellant was required to satisfy the thresholds in ss 151G and 151H, respectively, of the Workers Compensation Act 1987 (NSW). These issues were not addressed, nor, in terms, was any question of contributory negligence determined.

Arguments on appeal 9 There is at least a superficial attraction in the view adopted by the trial judge that a worker, or at least one who has had some years of experience as a labourer, does not need training or instruction in the use of a pick, shovel and wheelbarrow. However, as the Appellant argued, there are three difficulties with that position. First, although it may appear attractive to a person with experience of odd jobs and gardening on the weekends, it tends to underestimate the very real risks attached to the cumulative effects of heavy work. Secondly, it was accepted by the Respondent's expert that the activities in fact undertaken by the Appellant were potentially hazardous. Thirdly, the Respondent's expert accepted that this was, by modern standards, exceptionally onerous work. Thus, it was put to Mr Hugh Cowling, a civil engineer, in cross-examination: Q. Can you think of one job, Mr Cowling, in today's Australian workplace where any man's going to be using a barrow and shovel 90% of the time for two months straight?

A. No, this is - I tend to agree that the fact of the matter is that that necessarily isn't a hazardous and dangerous activity. I mean, the fact of the matter is it needs thought. You asked me a question earlier, did I think that that needed assessment, yes, but I don't believe of itself that I could turn around and say that was a dangerous activity.

Mr Cowling also gave the following evidence (T54): "But if he was spending his time constantly wheeling heavy barrows, yes, I would say that would be something that would certainly be hazardous."

In short, the Appellant's case was not that using a pick, shovel and wheelbarrow were essentially hazardous tasks, but that the cumulative effect of strenuous effort over a period of weeks was hazardous and that the real risks involved, or at least the means of avoiding them, would not be apparent to a worker without appropriate instruction and training. 10 The Appellant's evidence was that, although the ground on which the substation had been placed was flat, the surface was "wet and sloppy and slippery" (Tcpt 10) and it was necessary for him to exert every bit of energy he had to get the barrow up the ramps to the stockpiles of materials, with a bit of a run-up: Tcpt 14. He gave further evidence as to his physical condition at the time: Q. After a while did you start to notice a problem? A. I noticed after about a month or so of being on the site, I started getting, like, a sore back. Q. At first did you do anything about reporting it? A. No. Q. Did you seek any medical treatment? A. No. Q. Why not? A. I just thought it was just a bit of back strain from the heavy lifting and work I was doing. I didn't -- Q. As time went on how did it go? A. It was progressively getting worse. Q. Did something happen about the … 300mm pipes? A. I had to ask other people to lift them. Q. What about the smaller 150 pipes? A. I still just carried on carrying them myself. 11 He was then asked to describe the incident with the wheelbarrow on 12 May (Tcpt 16-18): A. The ground was unlevel and I had it sort of on a side of like a hill and so the wheelbarrow was … sloping down a bit … because you know the wheelbarrow is like lower on one side than the other, the front to the back. … The front wheel would have been lower I was -- Q. What did that make the bowl of the barrow, top of the bowl? A. Made it more even. Q. To what extent had you filled it with water? A. Up to about an inch from the top. Q. You told me you washed some implements in it? A. Yes. Q. What did you wash in it? A. Trowels, the shovels. … Q. Did you get your shovels and your trowels clean? A. Yes. … Q. What did you do then, Mr Madden? A. I emptied the wheelbarrow. … I pushed down on the left-hand side and pulled up on the right-hand side and tipped the wheelbarrow to its side. … Q. As you did that did you notice something about yourself? A. Yeah, I had a severe sharp pain down the bottom of my back. Q. How far had you got in the tipping over process when you noticed this sharp pain? A. Right at the point where I was twisting my back and sort of releasing most of the water out of the wheelbarrow. 12 In cross-examination, Mr Madden agreed that he had worked for the Respondent for some four years using a pick, shovel and wheelbarrow. That work was on construction sites. In re-examination he was reminded that he had said that he work at the substation involved "about 90% barrow work". He was then asked (Tcpt 41): Q. The other jobs that you did on other locations, can you give me a percentage of barrow work that you would be doing there on average? A. It would be about 10%.

He confirmed that none of his previous jobs had involved pipe laying: Tcpt 42. 13 The Appellant called evidence from a Dr Neil Adams, an independent consultant in ergonomics and occupational safety management. Based on the National Code of Practice for Manual Handling, adopted by the Occupational Health and Safety (Manual Handling) Regulation 1991, Dr Adams expressed the view that the work being undertaken by the Appellant "would be categorized as holding a quite high probability of causing injury": Report, p 11. He expanded on that view (at p 13): "As my ergonomic evaluation indicated I believe there is a quite high probability that a worker performing the work described by Mr Madden would have progressively injurious stresses imposed on his back and could eventually suffer back injury when performing almost any of the physically demanding tasks that constituted his work over that period." 14 The Respondent obtained a report, as noted above, prepared by Mr Hugh Cowling. In relation to the lifting of pipes, Mr Cowling suggested: "If a 4m length of pipe is to be carried, the simplest way is to lift close to one end. That way the entire weight of the pipe does not have to be lifted in one go. Instead, the weight to be lifted initially from the ground is about half the total. Then with that end of the pipe hoisted, slowly move under until the centre of balance was above the lifter's shoulder. The pipe could then be lowered and steadied on the shoulder using one or two hands and the pipe walked to where it was required. In that way, there would be no undue torsional stresses etc in turning because the pipe was free to rotate around the fulcrum provided by the shoulder. The load would be carried close to the centre of gravity of the lifter's body." 15 Mr Cowling expressed the view that lifting undertaken in this way would not be hazardous. The Appellant noted, however, that this was not the way in which the Appellant had described his own lifting activity, which was to stand alongside the pipe and pick it up in the middle, and, more importantly, was not the way in which he had been instructed or trained to lift the pipe. Mr Cowling also expressed the view that tipping over a wheelbarrow was not a hazardous activity, and that, if it had been necessary to move the wheelbarrow before emptying it, it could have been partly emptied using a bucket. In relation to the latter point, the Appellant again noted that the desirability of using a bucket had never been pointed out to Mr Madden. In any event, the Appellant's case was, at least in part, that the twisting force applied to empty the wheelbarrow was the "straw" which broke an already overstressed back. 16 In cross-examination, Mr Cowling agreed with the statement of a number of basic principles regarding lifting, including keeping one's back straight, while bending one's legs; the inadvisability of twisting whilst lifting and the inadvisability of lifting and carrying loads asymmetrically to the body: Tcpt 48. Mr Cowling was also asked to comment on the Appellant's description of how he lifted the pipes at Tcpt 49: Q. Bad way of lifting up such a pipe. Do you agree? A. Yes. 17 Mr Cowling was asked some questions in cross-examination about Dr Adams' suggestion that a risk assessment should have been undertaken. He stated, at Tcpt 47: Q. Do you remember in his report he mentions that a risk assessment procedure is a necessary step when dealing with an employer and a workplace such this? A. I heard him say that. Q. You agree with that opinion, don't you? A. I do. Q. I want you to assume that so far in this case we've heard no evidence of any such thing. Since at least 1991 there's been a statutory requirement for one to be carried out, hasn't there? A. Yes. … Q. It's also your opinion that at modest cost consultants can be engaged by small firms to have a look at the work that's proposed and look at the risk inherent in it? A. Yes, that's correct. … Q. There are, you would agree, commonly available checklists to enable even the smallest employer to have a look at what they propose to do and whether there are risks inherent? A. Yes. Q. You'd also agree, wouldn't you, that any prudent employer when dealing with a man who's going to be performing heavy labouring work, should give him instructions on basic safe handling techniques? A. I agree. 18 In his judgment, at [24], the trial judge noted the first breach of duty of care identified on behalf of the present Appellant, namely a failure to undertake a "risk assessment" before commencing work on the substation. His Honour also noted, at [25] the Respondent's assertion that "a risk assessment was not necessary". He accepted the Respondent's submission because the work which the employees and subcontractors were to perform was "a relatively straightforward task on level ground in a limited area": Judgment at [35]. His Honour continued: "In any event, I cannot see that the defendant's failure to undertake a risk assessment amounts to a breach of its duty of care causally connected to the plaintiff's injury." 19 His Honour then proceeded to deal separately with the claims of an unsafe system of work and a failure to provide training or supervision. In those respects, his Honour's conclusions were that the system for manual movement of materials was "reasonable and safe" and that the Appellant was able to decide if he needed assistance in carrying pipes and how much material to place in the wheelbarrow. As already noted, he deemed the use of a pick, shovel and wheelbarrow to be straightforward and not requiring training or supervision. 20 Leaving to one side his Honour's findings with respect to supervision, there is clearly a danger in breaking the assessment of a reasonably straightforward operation up into component parts as particularised. The question of training or instruction is inextricably connected with the nature of the work to be undertaken and with a risk assessment, however straightforward that assessment may seem, in relation to the work proposed. Further, as the Appellant submitted, it is not adequate in effect to delegate to the worker the responsibility for establishing a safe system and determining the effect of cumulative stresses. Although the risks of inappropriate methods for manual handling are much better known than they were 15 years ago, when the National Code of Practice for Manual Handling was devised, in the absence of information that a particular worker has already undergone relevant instruction in manual handling, an employer is not entitled to assume that correct techniques are common knowledge. Accordingly, in my view, the trial judge was in error in breaking his assessment down into these component parts. The result of the error was to obscure the fact that the employer had failed to consider reasonable steps which could have been taken to remove or minimise foreseeable risks of injury. 21 Although his Honour noted that he was reaching a conclusion inconsistent with the opinions expressed by Dr Adams, he failed to note, as he might have, that significant aspects of those opinions were supported by Mr Cowling, the expert called for the Respondent. Although the transcript of the evidence given by Dr Adams, including any cross-examination, is not available to this Court, his Honour made no reference to any challenge to that evidence and the Respondent did not suggest that Dr Adams departed from his written report in any material respect in cross-examination. Although, of course, the trial judge was not bound to accept even common views expressed by the experts, it may be expected that rejection of such views would at least be noted and would usually be explained. The failure to do so in the present case provides additional support for the conclusion that his Honour's approach revealed error. The evidence supported a conclusion, on the probabilities, that the Respondent was in breach of its duty to the Appellant to provide a safe system of work, and that the breach resulted in the injury to the Appellant's back.

Contention - separate injuries 22 By way of a notice of contention, the Respondent argued that, even if the Court were minded to find in favour of the Appellant in relation to liability, there should be no re-trial because, there being two separate causes of action, the Appellant would have failed to satisfy the applicable thresholds in ss 151G and 151H of the Workers Compensation Act. In other words, there were separate claims in relation to the nature and conditions of the work and the injury caused by the incident with the wheelbarrow. 23 This submission faces a factual hurdle, in that the trial judge did not purport to assess damages, nor was it suggested that this Court should remedy the omission. Rather, the submission was based upon the proposition that even the total claim made by the Appellant, if divided equally between the two causes of action, would not reach the threshold in s 151G(4). Alternatively, it was submitted, the Court could conclude that neither cause of action could be classified as causing injury greater than 17% of a most extreme case, being the appropriate threshold proportion. 24 In support of this submission, the Respondent called in aid the decision of this Court in Woolage v State of New South Wales [2001] NSWCA 256. In that case, the trial judge had been faced with two very similar accidents, occurring in March and November 1996 respectively. He assessed damages on a global basis and without regard to the thresholds in the Workers Compensation Act. 25 Beazley JA, with whom Handley and Stein JJA agreed, described the issue, which was raised by the worker, in the following terms at [7]: "Both parties agreed that his Honour erred in two respects in the assessment of general damages and in awarding interest. The first error arises because his Honour awarded one lump sum in respect of general damages for the appellant's injuries. However, the appellant sustained his injuries in two separate accidents, giving rise to two separate causes of action. He sued in respect of those separate causes of action and was entitled to separate awards in respect of each cause of action, assuming that each injury was compensable. His Honour erred in failing to consider the appellant's entitlement to damages in respect of each of his causes of action."

The second error identified by her Honour was the failure to apply the provisions of Part 5 of the Workers Compensation Act . 26 This Court was satisfied that the consequences of the first accident were minimal and that he was not entitled to recover any amount in relation to the first incident. The Court proceeded to assess separately the loss following from the more serious November incident. 27 The Appellant, by way of contrast, suggests that this case bears closer comparison with the decision of this Court in Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228. The facts, as summarised by Davies AJA at [3] were as follows: "Mr Juweinat, a welder, had been working with the Appellant for less than 12 months when, during April and May 1999, he suffered pain and discomfort as a result of three incidents in which he lifted or assisted to lift heavy articles. As a result of the injury or injuries which he incurred during these incidents, Mr Juweinat suffered a permanent disability which has rendered him unable to perform heavy work, and which has, effectively, precluded him from carrying on his employment as a welder." 28 In Leppington, the Court was invited by the employer, to apply the first principle identified in Woolage, so as to require separate calculation of loss in respect of each of the three incidents. That argument was rejected, Davies AJA noting at [23] that the worker "was entitled to claim as the injury for which he sought compensation the condition which resulted from the three incidents in the appellant's employment". Significantly, that was how the case was run. After identifying the manner in which the case had been pleaded, his Honour concluded (at [26]-[27]): "The case put on behalf of Mr Juweinat in the pleadings and at the trial was that he suffered an injury in the nature of chronic back and leg pain to which the three incidents at work contributed. That was how the claim was put at the trial and that was how the claim was dealt with by both parties during the trial, and by the trial judge in the course of his judgment. If Mr Juweinat suffered distinct injuries from distinct injuries at work, these distinct injuries were not identified. Senior counsel for the appellant conceded that the evidence was in 'a totally unsatisfactory state' if the Woolage principle was to be applied. In the circumstances, the challenge based on Woolage must fail. This was not a case in which damages for separate injuries were sought in reliance upon separate causes of action." 29 In relation to the second error in Woolage, namely the failure to apply the Workers Compensation Act, s 151E states: " 151E Application - modified common law damages (1) This Division applies to an award of damages in respect of: (a) an injury to a worker, or (b) the death of a worker resulting from or caused by an injury,

being an injury caused by the negligence or other tort of the worker's employer." 30 As Davies AJA noted in Leppington, the application of the Division did not depend upon identification of a particular cause of action, but rather operated by reference to "an injury". Thus, Leppington and Woolage are entirely consistent: where there is a single defendant, and a course of allegedly tortious conduct continues over a period of time, the plaintiff may establish a single injury, whether or not separate causes of action were pleaded. 31 In the present case, the claim made by the Appellant was primarily founded on the nature and conditions of the course of employment from March through to May 2000. The incident with the wheelbarrow on 12 May 2000 was pleaded, in the alternative, either as a final event in a course of conduct, precipitating the injury, or as a separate event giving rise to the injury. If the Court were satisfied that the Appellant suffered one injury and was entitled to succeed on his nature and conditions of employment claim, he would be entitled to damages assessed in respect of that injury. The Respondent's contention should, accordingly, be rejected.

Conclusions 32 In my view the evidence at trial, set out in part above, was sufficient to establish the Appellant's case on the question of liability. However, the argument on this appeal did not address the medical evidence, or whether there was one injury or more than one. Further the matter must be remitted to the District Court for consideration of contributory negligence and for the assessment of damages. This will require the consideration of the evidence with respect to the nature and conditions of the employment over the period from at least April through to the incident on 12 May 2000. There will need to be a retrial, in conformity with these reasons. 33 The order of the trial judge as to costs should be set aside. 34 I would propose the following orders:

(1) Appeal allowed; (2) Set aside the judgment and orders of the District Court in favour of the Respondent; (3) Remit the matter to the District Court for retrial; (4) Order the costs of the first trial to abide the order of the judge presiding at the second trial.

(5) Order the Respondent to pay the Appellant's costs of the appeal.

(6) Grant the Respondent a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified. 35 YOUNG CJ in Eq: I agree with Basten JA.

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