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.