Martin v Hendersons Industries Pty Ltd [2004] VSCA 19

2. The plaintiff/appellant was employed by the defendant/respondent as a spot welder in 1995. In October 1995, while working in the course of his employment with the respondent, the appellant suffered injury to his back. The appellant was obliged manually to remove panels from a pallet and to spot weld them. The panels would then be turned into car seats for the Ford Motor Co. The principal case made for the appellant was that the pallets were frequently overfilled with panels at the Ford plant, causing the panels to become jammed in the pallets, and that as a result of the physical effort required to remove the panels he suffered injury to his lower back. By writ filed on 15 February 2001, the appellant commenced proceedings in the County Court seeking damages for injuries he claimed he had thus sustained. The defendant denied negligence and breach of statutory duty. There was an allegation of contributory negligence. The major issue in the proceeding was whether or not the panels were stacked too tightly in the pallets resulting in the panels sticking inside one another and making their removal from the pallets physically too difficult.

5. The trial of the proceeding commenced on 3 June 2002 before a judge and jury of six and proceeded until 20 June. On that day the jury returned a verdict that there had been no negligence or breach of statutory duty on the part of the respondent which was a cause of the appellant's injuries.

8. The appellant claims (ground 4 of the notice of appeal) that the judge erred in giving inadequate instructions to the jury with respect to his case in negligence and breach of statutory duty by failing to explain to the jury the way in which they should apply the relevant principles of law to the facts of the case; and (grounds 8, 9 and 10) that the verdict of the jury with respect to negligence and breach of statutory duty was perverse and against the evidence and the weight of the evidence, and that the jury ignored the evidence of the appellant, and three other witnesses in arriving at this verdict. At the hearing of the appeal, the appellant sought leave to add a new ground 11 which in effect provided extended particulars of ground 4.

12. The jury was taken on a view of the defendant's premises before any evidence was called. The first witness was the plaintiff himself, who explained in detail his system of work. He told the jury that he was a welder operating automatic welding machines, usually on night-shift. The panels were delivered to his work station in their pallets by a fork-lift. The welder was then separated from the pallet by a bar, set at waist height. The operator had to turn from the welding machine to the pallet and remove the panels from the crate without assistance from any other party. The welder would then clamp the panel into his machine and perform the spot-welding operation. The plaintiff, who usually worked on night-shift, was expected to spot-weld some 200 to 300 panels in each shift.

15. The plaintiff gave evidence that when the pallets were jammed full with panels, "you really had to reef the first few panels so that the rest would all loosen up because they were all stuck inside one another and they were packed in pretty tight". He said that he complained about the way in which the panels were stacked in pallets to his team leader, Steve Nicolas, and the foreman on afternoon shift, Michael McQueen, and that other workers had complained about the same problem. The plaintiff said he had suffered stiffness to his lower back in June 1995, when he woke up at home one morning, his evidence being that "I just woke up one morning and I was as stiff as anything". He said that he had a specific problem on afternoon shift in October 1995, when he was working on the panels at about 8.30 p.m. He said he was trying to extract the first few panels and "I reefed them, and that's when it happened". He described the force required as "a fair bit of effort" to get the first few panels out, and said he didn't think there was any other way of getting them out without using that degree of effort. The plaintiff said he was standing "side on" when removing the panels from the pallet at an angle. He said that it would not have made any difference to take out the panels at the end first because "you just basically have to get the first few out and then just work from that". He said he completed a form dated 18 October 1995 reporting the occurrence of his injury. The plaintiff said that the cause of his injuries was from the combination of a number of different things saying "one was the trolleys were gone, two was that they were packed in so tight, and three I personally think that you had to stretch to get them out".

18. One of the plaintiff's workmates, Loc Huong, gave a description of working on the pallets when he worked for the defendant between September 1994 and July 1996. Huong said that he recalled the plaintiff telling him that he had suffered an injury to his lower back in September or October 1995. He said the pallets were delivered by fork-lift sometimes close to the bar and sometimes a distance away and sometimes at an angle. He said the panels were stacked "very tight" and that he had difficulty removing them from the pallets. He said he had to bend "very far", and that he complained on "almost a daily basis" to Michael McQueen, Steve Nicolas and others. Huong complained that "the job was tough, was very difficult ... and we were asked to do - we were made to do it everyday".

21. A consulting engineer, Clifford Russell Purdey, gave evidence on behalf of the plaintiff. Purdey said that in his opinion "the risk of the jammed panels causing injury is very high, because in fact they can be or could be packed very tightly, and so the effort to withdraw a panel could be quite high". Purdey said that as the leverage distance increases so does the load on the musculature placing the spine in compression, which could cause failure of the components of the spine. Purdey was of the opinion that the system of work "was poorly set up", first because the panels were jammed together and, secondly because of the reaching distance to where the pallet was positioned. In his opinion the design of the pallet could be set up to allow easier access to the panels.

24. A number of medical witnesses were called on behalf of the plaintiff, but it is unnecessary to turn to their evidence at this stage.

28. The defendant led evidence from two employees, Ronald Willey Mayer and Lupcho Dimovski, and the plaintiff's group leader, Stephen Micallef, as to the system of work involved. Mayer said that he did not have any problem with the panels. He said "I suppose when it [the pallet] was full, initially there was - might have had a little bit of stickiness to get them out, but otherwise once the first couple were out, there was no problems after that" and "well the [difficulty] happened occasionally, but there was not really any - wasn't very hard to get it out ...". Mayer said that pallets were placed right against the bar by the fork-lift drivers and that the bars were there to stop the pallets coming in too far.

31. Lupcho Dimovski said that he had "no problem" at all in getting panels out of the pallets, and that he had "not much" difficulty in removing the initial few panels. He said during his evidence that it was "not quite difficult" or that the difficulty was "very little" and that he had "no problem" getting them out. Dimovski said he made no complaints to the foreman or supervisor about the way the job was set up.

34. Stephen Micallef recalled the plaintiff reporting an injury to his lower back in October 1995 from pulling panels out of a pallet. Micallef said that he would remove a number of panels from the pallet which would "release the pressure for the panels". Micallef said that there were complaints that the panels were packed too tightly and he made the same complaints. He said the panels were difficult to get out when starting a new pallet and that the complaints the workers were making were "referred to - up to the guys higher up", these complaints having been made in 1994 and 1995. Micallef said he told people at supervisors' meetings that there were difficulties because the panels were too tightly packed in the pallets. He said he would go around and try to set up jobs by getting a few panels out of full pallets when they came in and that he would strain when getting them out.

37. The defendant next called Barry Alexander Reid, who acted as its Materials and Logistics Manager. Reid said that the panels in the pallets from Ford were not coming in uniform quantities, and he raised quality and safety concerns with Ford. Reid said that the defendant wanted a specific number of panels in each pallet and that he had spoken to Ford two or three times prior to 1995 about this, his concern being to standardise the number of panels in each pallet. Under cross-examination Reid said that he had heard that the panels were too tightly packed into the pallets, but had not heard that men were having difficulty getting panels out of the pallets.

40. The defendant's next witness was Ronhold Terdzans, its Production Manager. Terdzans said that there was a problem with the overfilling of pallets, "people were having problems pulling them out because the edge was getting caught under the mesh, the side of the pallet". This caused "a little bit of frustration trying to get them out". The problem was that people cut their fingers removing the panels. He said there was not a problem with back injuries and no complaints of back injuries were to his recollection raised at the relevant safety meetings or recorded in the minutes of those meetings. Terdzans said he was not aware of any other back problems from the plaintiff's work station. He agreed with the evidence of Micallef that the panels were packed too tightly and that they were difficult to get out when a new pallet was started. He agreed that there was a problem with the size of the pallets being uneven, which the defendant had identified as a problem. He said workers had trouble getting the panels out, "some had problems, some had less problems than other operators had problems", and it depended on how tightly packed the panels were. Terdzans said he had no doubt that "they certainly could have been packed tightly, yes". He said that Ford might have been giving 200 or more panels in each pallet, and that the lip or edge of each panel would be under another; these could be wedged together, and the operators were complaining about it. Terdzans said that risk assessments had been made at the relevant time and that there should have been a risk assessment carried out on the job the plaintiff was doing. However he had not physically seen the documents concerning it, nor had he looked for any.

43. The defendant also called Alan Botava, its Training Safety and Environmental Coordinator. Botava gave evidence that the National Safety Council audited the defendant in 1992 and thereafter on a yearly basis, issuing a report with the auditor visiting the premises about once every three months. Botava said he was not aware until the trial that there were complaints about pallets being over-stacked. He had no knowledge of that situation as it occurred in 1995. Botava said that risk assessments were in their infancy in 1995 and no risk assessment was conducted on the plaintiff's work system.

47. In so far as negligence was concerned the case made by counsel for the plaintiff was that there was overwhelming evidence to establish that the pallets supplied by Ford and thereafter delivered by the respondent to workers such as the appellant had been overfilled, and that the panels were too difficult to get out because they were packed too tightly. Consistently with the way the matter was put to the jury, it was submitted in this Court that no reasonable jury properly instructed could conclude that the evidence supported any conclusion other than that the pallets were overfilled; the panels were jammed against one another; that it was a problem experienced by the appellant and Huong, confirmed by the leading hand, Micallef, and that the problem had been further confirmed by persons in authority with the respondent, such as Terdzans and Reid. As the plaintiff's counsel had put it to the jury in his final address, "this case is about sticking panels - it is not about anything else". Later, after making reference to the question whether the pallets had been properly positioned by the fork-lift near the plaintiff's work station, counsel said -

"On our case the fork-lift has got nothing to do with it. All right, they're not being positioned properly and they're not this and they're not that. Forget it. This is about the panels being too difficult to get out because they're packed too tightly."

The plaintiff's case was that if he had had to strain to get panels out of the pallets it was obvious that strain would be imposed on his back, leading inevitably to the risk of injury to his back.

52. The second limb of the plaintiff's case relied on the Occupational Health & Safety (Manual Handling) Regulations 1988 ("the regulations") and in particular regs.5(b) and 6(1), which (in so far as relevant) provide as follows -

"5. An employer must take all practicable steps to make sure - (a) ... (b) that the work practices carried out in the workplace involving manual handling are designed to be as far as practicable safe and without risk to health and safety." "Risk Assessment 6(1) An employer must ensure that manual handling likely to be a risk to health and safety is examined and assessed. (2) The assessment must be done in consultation with - (a) the employees who are required to carry out the manual handling; and (b) any health and safety representative for the designed work group of which those employees are members. (3) The assessment must take into account the following factors: " [There are then enumerated 14 factors relevant to an assessment of the risk to health and safety of the manual handling involved].

The plaintiff's case was that no jury properly instructed could conclude other than that the regulations applied to the work the plaintiff was performing at the relevant time; it was clearly foreseeable that manual handling of the kind performed by the plaintiff carried with it a likely risk to his health and safety; and no risk assessment had been performed by the defendant, even though Terdzans had said that a risk assessment should have been carried out; and it must accordingly follow that in the absence of performing a risk assessment the defendant had not complied with its obligations under either regs.5(b) or 6(1). There had accordingly been blatant and serious breaches of both regulations where the risk of injury to the plaintiff was clearly foreseeable and such breaches were a cause of the plaintiff's injuries.

57. The central issue between the parties at the trial, both as to negligence as well as breach of statutory duty was whether there was any real difficulty in removing the panels from the pallet. As the respondent's counsel submitted in the appeal, if the plaintiff satisfied the jury on the balance of probabilities that there was such a difficulty, it was open to him to argue that there was a foreseeable risk of injury to his spine and then, in the face of such a risk, whether a reasonable employer was obliged to take steps to minimise or eliminate that risk. Similarly the question of difficulty in removal of the panels was central to any allegation of breach of statutory duty. Having regard to the way the case was run, if the jury was not satisfied that there was a risk of injury to the plaintiff's spine occasioned by the removal of the panels from the pallet, then neither regs.5 or 6 would assist the plaintiff.

61. Counsel for the appellant submitted to this Court that the judge's charge was defective in many respects. The charge was lengthy, and included a detailed review of all the evidence which had been given. Dealing with the plaintiff's case in negligence, her Honour said the following -

"The precise injury does not have to be foreseeable so long as an injury of the type or character of that sustained was foreseeable. In other words it is for you to determine whether a reasonably careful employer would have foreseen the risk of injury by the plaintiff. Now in this case the plaintiff alleges that the defendant's premises were specifically designed or set up for the tasks in which he was engaged as a spot welder, which included removing the panels from the pallets. He says that this system unnecessarily exposed the plaintiff to a risk of injury which was reasonably foreseeable. The plaintiff claimed that panels were delivered in pallets so tightly packed that it was necessary to strain and use considerable force to get them out. He also said on the day of the injury that pallets were not placed on trolleys and were left away from the safety bar requiring him to reach out further and lower. The plaintiff also relies upon the evidence of Mr Huong as to the difficulties which they were both experiencing and the evidence of the defendant's witnesses as to the condition of the pallets. In order to determine whether the defendant has breached its duties to exercise reasonable care, you must first determine whether a prudent employer in the circumstances of the defendant's welding operation, would have foreseen an unnecessary risk of injury to a person in the plaintiff's position. The plaintiff's case is that such foreseeable risk of injury was manifest in the circumstances. He says in effect, that workers were either expected or permitted to contend with tightly packed pallets. The panels were so difficult to remove, they were causing cuts to the hands of some workers. They manhandled these panels in awkward circumstances without assistance or any appropriate mechanical aids. The plaintiff said that in these circumstances the risk of injury is not remote or fanciful. The plaintiff points to the medical evidence which confirms that the manner in which he had to remove the panels was likely to place great strains upon his musculoskeletal system and was consistent with the personal injury which he sustained. Furthermore the plaintiff relies upon the evidence of Mr Purdey as to the unsafe nature of the set-up of the pallets and their contents. If you are satisfied, members of the jury, that a foreseeable risk of injury is established, you then look to see whether or not there were ways in which a reasonable and prudent employer could have avoided or minimised that risk of injury. In this regard the plaintiff principally relies upon the evidence of Mr Purdey, as to the precautions that could have been taken by the defendant to avoid or minimise that risk of injury to workers, such as the plaintiff."

65. When the judge came to deal with the alleged breach of statutory duty, she told the jury that the defendant owed a duty to the plaintiff under the regulations, that the duty was an absolute one, and that the question was simply whether the defendant failed to comply with the provisions of the statute or regulations. The judge continued -

"That is a factual question for you but when deciding it, you do not look to see whether the defendant was acting reasonably in all the circumstances or whether the injury suffered was foreseeable; rather it is simply a matter of whether the plaintiff has proved that the defendant failed to comply with the provisions of the statute or regulations. That is was (sic) in breach of the duty required of it by the statute or regulations. Thus the statutory duty is a higher duty than the duty under the common law to exercise reasonable care in all the circumstances."

70. After the judge had dealt with the law in her charge, the jury were given a short break. The plaintiff's counsel then said that he had some concern with the way in which the judge had directed the jury as to the duty of care. These comments were described by counsel as sounding "more like a grizzle ... perhaps I'd better pass on". Counsel also complained that her Honour had said that the defendant did a risk assessment, commenting that as he understood the defendant's evidence they never did a risk assessment on the machine. There followed an exchange between counsel and the judge, with her Honour making the point that she had said that the defendant did risk assessments, but she had not said that they did a risk assessment on this machine. At the end of the exchange counsel said "Well perhaps we ought to wait until the end". At the end of the charge no further exception was taken. In this Court Mr Hore-Lacy for the appellant (who did not appear at trial) accepted that no exception had been taken to any of the various matters in the charge which were now submitted to reflect error in her Honour's charge under grounds 4 and 11.

73. The plaintiff was represented at the trial by senior and junior counsel, both of long experience in trials of this nature. The failure to take exception to an error in the charge, while not necessarily fatal on appeal[1], is a substantial impediment to the appellant's prospects of success on the points now raised. As Barwick, C.J. said in General Motors-Holden's Pty. Ltd. v. Moularas[2] -

"Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement."

77. The failure to take exception is significant not only where the judge could have cured the defect in the charge if asked to correct it. The fact that no exception was taken at the time will be viewed by an appellate court as indicating that counsel in the atmosphere of the trial saw no relevant impropriety or unfairness in the judge's charge.[3]

80. There is a related point which should now be mentioned. In general, a party is bound by the way it conducts its case at trial and it is not open to a party which has elected not to pursue a particular course at trial then to argue on appeal points not taken below; Liftronic Pty. Ltd. v. Unver[4]; Coulton v. Holcombe[5].

83. In University of Wollongong v. Metwally [No. 2][6], six members of the High Court said -

"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

87. The extent to which a court of appeal is prevented by this rule from interfering with the result of a trial is well demonstrated by the following passage from Water Board v. Moustakas[7] -

"The course taken by the Court of Appeal immediately casts doubt upon whether it was correct in concluding that, upon the facts as found by the trial judge, the plaintiff had made out a case of negligence against his employer. The only case which he could have made out was one which he sought to put, for a trial is not at large but is of the issues joined by the parties. If the case which the Court of Appeal thought was made out was one which the plaintiff had sought to put on trial, then it may not have been unfair as the Court of Appeal appears to have thought it would have been, for judgment to have been entered for the plaintiff on the appeal and for any question of contributory negligence to have been dealt with then and there. Any element of unfairness can only have arisen from the fact that the case against the employer which the Court of Appeal discerned, was not a case which the plaintiff sought to make at trial and was not, for that reason, a case which the employer had been required to meet. It was not a case which could be met upon appeal because the possibility of calling evidence to meet it was denied to the employer at that stage. More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute."

91. The decision in Water Board v. Moustakas was referred to by Gleeson, C.J., McHugh and Gummow, JJ. in Whisprun Pty. Ltd. v. Dixon[8] in such a way as to show that the rule retains no less than its full force. Their Honours said -

"[51] Accordingly this appeal must be allowed. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to the expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs. [52] As Water Board v. Moustakas makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is `necessary to look to the actual conduct of the proceedings'. Thus in Water Board, the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing into the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal."

96. Ground 4 complains in general terms that the judge fell into error in giving inadequate instructions to the jury. At the outset of the hearing of the appeal, the Court raised with Mr Hore-Lacy the question whether ground 4 was adequate as an indication of the nature of the appellant's complaints about the judge's charge, and the appellant later submitted proposed ground 11, saying that it was intended to give specificity to the general complaint contained in the original ground.

99. Mr Forrest for the respondent at first did not object to the proposed ground 11, but later did so on the basis that in a number of respects it raised a new case. He emphasised, however, that he had no difficulty answering each point the appellant wished to argue under the proposed ground. The Court permitted the appellant to deal with each of the issues contained in ground 11, reserving until later the question whether such a late amendment ought be permitted. Having regard to Mr Forrest's concession that he had no difficulty in answering each matter so raised, I would permit the appellant to amend his notice of appeal to include ground 11.

102. It is convenient to deal now with grounds 4 and 11 together. Ground 11 contains a large number of complaints as to the judge's charge, many of which are quite inconsequential. All must be considered bearing in mind that no exception was taken by the appellant's counsel at trial. I shall deal with the matters largely in the order in which they were raised.

106. Under this heading, the appellant claimed first that the judge directed the jury that it was the injury which was suffered - rather than an injury - which must be foreseeable. It is true that on occasions the judge in this context made reference to "the injury", but her Honour gave the correct direction on numerous occasions in the charge, see, for example, the first two sentences of the passage quoted at par.[18] above. There is nothing in this point.

109. Next the appellant complains that her Honour's directions were confusing. It was argued that the judge described the requirement that the risk be foreseeable in a variety of ways. Having read the whole of the charge it seems to me that the jury would clearly have understood that the risk had to be foreseeable, and had an acceptable understanding of what this meant.

112. Complaint was then made that the judge told the jury that "an extreme risk of fearful consequences does not amount to a breach of duty of care or negligence unless reasonable precautions could have minimised or prevented it". This statement was, I accept, not helpful in the present case, but it was nonetheless an accurate statement of the law.[9]

115. It was submitted that the judge told the jury that they must be satisfied that the plaintiff had proved that the defendant owed the plaintiff a duty of care and then instructed the jury that as a matter of law the defendant as employer did owe a duty of care. Reliance was placed on what had been said by Ashley, J. in Burnett v. Menzies International (Aust.) Pty. Ltd.[10] In my view the jury would not in the present case have been left in any doubt by this suggested inconsistency. The critical disputes between the parties in this case were, first, what was the risk of injury to which the plaintiff had been subjected, and, secondly, whether there had been a breach of the defendant's undoubted duty of care. Burnett was a very different case in which the trial judge had failed to put the case which had been argued on behalf of the appellant, and the matters which were in issue in the appeal were the subject of express exception before the trial judge. In Burnett the trial judge had not summarised the evidence of the witnesses or related the arguments of counsel to the relevant legal principles nor had there been any explanation of how an objective standard applied in determining an employer's duty of care.

118. Next it was said that the judge told the jury that the performance of the defendant had to be looked at objectively, without explaining what was meant by this. In my view the judge did explain the question of objectivity at some length to the jury.

121. Finally under this heading it was argued (although it was conceded to be a minor matter) that the judge had dealt with inadvertence on the part of the plaintiff in the charge, although this was an irrelevant consideration. It is true that her Honour did mention the question of inadvertence on the part of the plaintiff, but this was a matter the plaintiff's counsel had himself dealt with in his address.

124. In my view there is nothing in the submission that her Honour's directions to the jury were confusing, particularly having regard to the absence of any relevant exception.

128. The judge told the jury that the defendant's negligence must be a cause of the plaintiff's injury. The appellant contended, however, that her Honour did not tell the jury that it was sufficient if the negligence materially contributed to the plaintiff's injury. But the judge told the jury that what the plaintiff was required to prove was that the defendant, the employer, was not only in breach of the duty which it owed him, "but also that the breach was a cause, not necessarily the sole cause of the injury, loss and damage suffered by the plaintiff". Two sentences later, her Honour said "I stress again that such breach of duty need not be the sole cause of the injury, loss and damage". No exception was taken. The direction was, in the circumstances, adequate.

132. It was argued for the appellant that the judge had instructed the jury that the injury suffered by the plaintiff had to be foreseeable, but did not say that "injury" included the recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury. This is an argument of some substance. It was submitted that by the way in which the case was run and the questions were framed, the jury may have concluded that the plaintiff did not suffer any injury as a result of the defendant's negligence, either because the injury was the recurrence of an old injury (i.e. the injury which had occurred in May or June 1995) or because it was not related to the plaintiff's employment. The plaintiff had said in evidence that he woke up (in May or June) with a stiff back at home, and had eight days off work while he was treated by a chiropractor. It was faintly suggested that the judge should have put to the jury the definition of "injury" in s.5 of the Accident Compensation Act 1985, but this submission cannot be correct. On the other hand the plaintiff would certainly have been entitled to recover damages for a recurrence or aggravation of a pre-existing injury, caused by the defendant's breach of duty; for a "tortfeasor must take his victim as he finds him"[11]. The judge did not tell the jury that an injury included a recurrence or aggravation of a pre-existing injury and it would, I think, certainly have been preferable if her Honour had done so.

135. The question remains whether this was a matter really in issue. In opening the case the plaintiff's counsel had told the jury that the plaintiff had a back condition which gave him some trouble and resulted in some time off work in May 1995, whereas the present claim was for injury resulting from an incident in October 1995. Counsel said -

"Now, there's going to be an issue in this case as to, `oh well, you've got this very significant back condition but it's all May and it's not October'. Now that issue will be determined by you, no doubt with considerable assistance from medical experts who are called in this case ... Now, there's going to be an issue about whether it's May or whether it's October or may be it's a bit of both, but our claim is the primary injury and the significant injury was October, because October's what persisted and has persisted for seven ... years he's had it, it's October that's been the leg involvement, it's October that's caused the problems of his left leg ... ".

139. Counsel for the defendant, opening his case to the jury told them that there was also a question of causation, whether if there was negligence on behalf of the defendant "it was a cause of this man's injuries, and you will be hearing in relation to that medical evidence relating to that question, and also relating to the extent of his injuries and ... whether what he says he's got now was caused by this incident".

142. The matter was dealt with in the evidence of various medical witnesses, particularly by the defendant's witness, Mr Peter Battlay, who expressed the opinion that no more than one-third of the plaintiff's back condition was to be attributed to his employment. Mr Battlay said that the plaintiff had had a pre-existing injury, which was not work related, the incident in May-June 1995, when he was off work for eight days and treated by a chiropractor; in his view the main problem was the pre-existing damage. Mr Battlay's preferred view was that the plaintiff had made a full recovery from the incident in October 1995 and his employment with the defendant was no longer a significant contributing factor to his present problems[12]. He was prepared to concede that it was possible that the employment contribution could be up to 30%, bearing in mind what he said were the constitutional changes at the L5-S1 disc, and later said the employment contribution could not be put in for more than a third. On the other hand Mr Roynon Carey, an orthopaedic surgeon and one of the plaintiff's medical witnesses, dealing with the difference between the episodes of May and October 1995, after having had put to him some details of the incidents in question and the plaintiff's physical condition after each incident, said -

"Everything you tell me suggests that the incident at work of October `95 was the principal reason we're all here today, and that the incident of May 1995 was probably a benign in itself limiting condition and possibly of relevance, probably not."

In other words, Mr Carey's opinion, as put by the plaintiff's counsel to Mr Battlay later in cross-examination was that the May event was one of no consequence.

147. I do not think it was ever suggested by any party during the trial that the plaintiff's injury was not compensable merely because it involved the recurrence, aggravation or deterioration of a pre-existing injury. The issue was to what extent the plaintiff's injuries resulted from the October incident, and whether, indeed, any part of his continuing physical condition and back pain was attributable to the events of October 1995. The defendant's case was simply that not more than one-third of his then unpleasant back problems were work-related in that sense.

150. The evidence of the medical witnesses was recounted at length to the jury in the charge. Again, in the absence of exception, the appellant's argument under this heading has not been made good.

154. Under this heading the appellant argued first that the judge failed adequately to instruct the jury that as a matter of law the plaintiff's duties involved manual handling and failed to direct the jury properly as to the meaning of "practical steps" and "designed to be as far as practicable safe and without risk to health and safety". There is, I think, nothing in this argument. The jury had had a view of the defendant's premises and later had the evidence of Purdey to assist them in relation to these matters.

157. In relation to clause 6(i) of the regulations, the appellant argued that the judge had failed to direct the jury adequately as to the meaning of "likely to be a risk to health and safety". Again there is some substance in this point. The words in question, appearing in reg.6(1), might well have been thought by a jury to mean "more probable than not" or "having more than a fifty per cent chance of occurring". But in the context of regulations intended to reduce the number and severity of injuries resulting from manual handling tasks in workplaces[13] it is well-established that the likelihood in question is "a real or not remote chance or possibility, regardless of whether it is less or more than fifty per cent".[14] The plaintiff's counsel, however, never raised the question of what the word "likely" meant in this context and the issue does not appear to have been dealt with at all. As was put by Mr Forrest, it was not the judge's obligation to conduct a textbook explanation of any legal principles which might be relevant to the plaintiff's injuries. In the absence of reliance by the plaintiff on this point, her Honour was not, I think, obliged to mention the matter. Again, the plaintiff's counsel could, if any unfairness had been perceived, have taken exception to the failure to direct on the point.

160. It was argued that her Honour had failed to direct the jury as to the cause or connection required between breach and injury, namely that it was sufficient if the breach materially contributed to the injury, and also that her Honour should have made clear to the jury that proof of the necessary ingredients in relation to either breach would be sufficient to establish the cause of action. As to both these matters, her Honour said, I think, sufficient to enable the jury to carry out their proper function, and in the absence of exception, the arguments cannot succeed.

163. It was also argued that the judge had incorrectly told the jury that "the medical evidence which the plaintiff relies upon to establish that the defendant's unsafe system of work was a cause of the plaintiff's injuries is equally applicable to a breach of statutory duty", whereas the plaintiff's doctors had established a connection between the injury and the work the plaintiff was required to perform but which had nothing to do with breach or breaches of statutory duty. The plaintiff had, however, relied on the evidence of Dr Galbraith to establish the link between both the negligence and breach of statutory duty to the plaintiff's injuries.

166. Next, under the heading breach of statutory duty, it was submitted that the judge had referred to the defendant's submissions without criticism and in doing so had endorsed a number of wrong or irrelevant propositions. It is true that her Honour repeated without comment a number of arguments made on behalf of the defendant. But in doing so her Honour was, I think, simply making reference to what had been put on behalf of the defendant. I would accept that a number of the defendant's submissions were not helpful to the jury in their deliberations, and might well have called for a comment from the judge to this effect. But in the absence of any exception taken at the time on behalf of the plaintiff it is now too late to complain of such matters.

170. Under this heading it was submitted that her Honour had instructed the jury that the defendant's duty of care was non-delegable, without explaining to the jury exactly what that meant in the context of the case. The issues at the trial, however, did not really raise a problem of non-delegable duty at all. In any event her Honour told the jury -

"In this case for example, if you consider that a reasonably careful employer would have adopted a different system of work for the task in which the plaintiff was involved when he was injured, there would be no answer for the employer to say it was not the owner or manufacturer of the plant and equipment, if you were satisfied that the system for unloading panels was unsafe and exposed the plaintiff to a risk of injury that was foreseeable."

The direction was, I think, adequate in the circumstances.

Failure to instruct the jury as to the relevance of the injuries to workers' hands

176. It was argued in this Court that the judge failed to instruct the jury that it was entitled to take into account the evidence concerning the tightly-packed panels causing injury to workers' hands when considering whether the defendant's work practices were (i) without risk to health and (ii) likely to be a risk to health and safety. The defendant had argued at the trial that there was no known risk of back injury arising from the fact that the pallets were tightly packed.

179. The question arose during the evidence of Terdzans, who had said that he was aware that workers were having difficulty getting the panels out, because "the edges were getting caught under the mesh, the side of the pallet". Terdzans said that workers were cutting their hands and fingers in doing so, but that there was nothing in the defendant's records to indicate that panels were causing "any injury in the nature of backs. If it had, we would have taken further action". He was vigorously cross-examined on this issue, it being put to him that he had in fact known of back injuries. But Terdzans maintained his position that the only problem of which he had been aware was cut hands.

182. It was argued before this Court that since Terdzans (and hence the defendant) was aware of the damage to workers' hands resulting from the difficulty of removing tightly-packed panels from the pallets, two critical consequences followed: first, the defendant must be taken to have been aware of injury resulting from the overfilled pallets, and accordingly the test for foreseeability in negligence was established; and secondly, the defendant, knowing that injuries to hands had been so caused, was obliged to ensure that a risk assessment was carried out under reg.6. Any such risk assessment, it was said, was required to be done in consultation with the relevant employees[15] and the problems involving damage to workers' backs would inevitably have been revealed. The argument continued that the problem could have been solved very simply, by filling the pallets with fewer panels, and once the plaintiff established that there was an alternative and safe system which would have removed the risk of injury to the plaintiff, it was then for the defendant to prove that compliance with the alternative system was unreasonable.[16] The defendant, of course, called no such evidence.

185. The first question that arises is whether the fact that the defendant must have foreseen a risk of injury to workers' hands from the overfilling of pallets was sufficient to establish foreseeability on the part of the defendant of the risk of injury also to the backs of workers removing panels from such pallets.

188. In Hughes v. Lord Advocate[17], employees of the Post Office negligently left some paraffin lamps unattended near an open manhole. A boy was playing on a deserted site nearby, and tripped over one of the lamps which dropped into the manhole, resulting in an escape of paraffin vapour which ignited, causing an explosion which severely burned the boy. It was accepted in the House of Lords that this particular train of events could not have been foreseen, but liability was nonetheless imposed since some injury by burning to children could have been foreseen from leaving the lamps unattended. Since Hughes, the tendency has been to define "harm", for the purposes of foreseeability in negligence, within the scope of the risk as not so much the particular injury but "harm of a like general character"[18].

191. I would myself have been prepared to assume that an injury to the back, in the circumstances of this case (i.e. difficulty caused by lifting a panel from an overfilled pallet), was of the same general character as an injury to the hands occurring when trying to remove a panel from a pallet. If the plaintiff's case had been put to the jury on this basis, the judge would certainly had been bound to give appropriate directions to the jury. But it was not. Mr Hore-Lacy was unable to take the Court to any passage in the opening and closing addresses of counsel for the plaintiff where any such case was made. It is clear, as I have already noted, that the plaintiff's case was that because the pallets had been overfilled, back strains were inevitable because the plaintiff was obliged to use force to remove the first panels. We were told, a number of times, that the evidence was overwhelming that the panels were difficult to extract from the pallets.

194. In so far as the case was based on breach of statutory duty, precisely the same problem confronts the appellant.

197. I have already discussed the manner in which the plaintiff's counsel put the case to the jury. The fact that the plaintiff's case was not argued in such a way as to rely on injuries to the workers' hands is underscored by the failure of counsel to take any exception to the judge's charge in this respect.

200. The arguments as to the defects in the judge's charge contained in grounds 4 and 11 should all be rejected.

204. In Calin v. Greater Union Organisation Pty. Ltd.[19], Mason, C.J., Deane, Toohey and McHugh, JJ. said -

"The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach."

This is not the only obstacle in the way of the appellant. In Zoukra v. Lowenstern [20] the Full Court of this Court said -

"it is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence. This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in respondent's favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with upon appeal."

This passage has often been cited with approval in the High Court.[21]

211. Mr Hore-Lacy took us to the evidence of the plaintiff, Huong, Micallef, Terdzans, Reid and Purdey, and submitted that all of this evidence created a strong case against the defendant, the evidence being nearly all one way. He put it that the only basis upon which the jury could have concluded that there was no breach of the common law duty of care was if it had rejected all the foregoing evidence. He argued that the evidence to the contrary, that of Mayer and Dimovski, was utterly unreasonable and implausible and that no jury properly instructed could have reached any conclusion other than that the pallets were overfilled, being jammed, that it was a problem experienced by the plaintiff, Huong and Micallef, and further confirmed by other persons in authority with the defendant such as Terdzans and Reid. He argued further that no reasonable jury properly instructed could have reached any conclusion other than that the regulations applied to the work the plaintiff was performing, that the defendant was obliged to take all reasonable steps to ensure that the work practices involving manual handling were designed so far as practicable to be safe and without risk to health and safety and further that a risk assessment should have been undertaken. He submitted that the defendant plainly had not carried out any risk assessment (and Mr Forrest accepted in this Court that no such risk assessment had been carried out), and that it was clearly foreseeable that manual handling of the kind performed by the plaintiff carried with it a likely risk to health and safety. Accordingly the only question to be determined by the jury was whether the established breaches of the regulations were a cause of the plaintiff's injuries.

214. In so far as the case in negligence was concerned, the critical issues identified by the plaintiff's counsel were that the panels were difficult to remove from the overfilled pallets, leading to a foreseeable risk of injury to the spines of workers, the plaintiff duly sustained such an injury, and there were reasonable measures available to the defendant which would have minimised the risk of injury to the plaintiff's spine. The defendant's case on the other hand was that there was no difficulty in removing the panels, which later became an admission that there was difficulty in removing panels, but only such as to cause injury to workers' hands, and that no extra strain was placed on workers' spines giving rise to a risk of injury.

217. A number of witnesses gave evidence the thrust of which was that the defendant's system of work was adequate and did not pose any risk of injury to the plaintiff. In particular the evidence of Mayer and Dimovski was completely inconsistent with the view that the panels were difficult to remove. Mayer was not challenged in cross-examination, and there was little challenge to the evidence of Dimovski. The evidence of these witnesses, together with some of the evidence of both Reid and Terdzans, would have entitled the jury to conclude that the panels were not difficult to remove and that no risk of injury to the spine was caused by this work process.

220. Furthermore the plaintiff's credit had been vigorously challenged in cross-examination. It was put to him that he had suffered a number of earlier work-related injuries between 1984 and 1987, to his elbow, neck and shoulder. He had failed to make any reference to these injuries both in his application for employment with the defendant and in his "serious injury" application. He was forced to admit that he had told a number of untruths in his application for employment, and that he was then willing not to tell the defendant the truth as to his past claims and past injuries. [T169]. The plaintiff had also claimed in these proceedings that he was unable to play cricket and golf because of the injury he had suffered in October 1995, but he had made the same claim in relation to other injuries he had suffered in 1985. Furthermore the jury may have felt that the evidence of Mayer and Dimovski was supported by the contents of the accident report completed by the plaintiff on 18 October 1995 in which the plaintiff complained that on 11 October he felt pain in his back, the relevant factors given by him being stated to be "Trolley's removed from under cevol [i.e. the pallet] that holds panels forcing operator to bend further than usual". This report was immediately followed by a Team Accident Investigation Report completed by Micallef, who reported that the plaintiff had suffered pain in the lower centre of his back, increasing over a week. Micallef stated "Barry feels this was due to the removal of trolleys from under 60/40 panel cevols. Operator has to lean down further to reach panels."

223. There was a substantial body of evidence to support the plaintiff's claim that there was a real problem in removing panels from overfilled pallets, that it was the removal of the first panels from such a pallet which caused him to strain his back, and that complaints of this nature were being made by a number of workers. But there was on the other hand a body of evidence that the panels were not difficult to remove at all and, indeed, that the only injury workers were suffering was cut hands, rather than back strain. This was, I think, clearly a jury question. The jury had been given a view of the premises and had heard witnesses during a trial lasting nearly a fortnight. It is possible, after the attacks upon his credit, that the jury were not well disposed to the evidence of the plaintiff. [22]

226. If the jury were not persuaded that the panels were difficult to remove from the pallets, they were bound to reject the plaintiff's case as it had been put at trial, both in negligence and in breach of statutory duty.

229. The remaining question under these grounds relates to the alternative case which was argued in this Court. On the evidence at trial it might have been possible to argue that because the defendant was aware of the injuries to workers' hands caused by the panels being jammed in the pallets that (a) the foreseeability of like damage was established and (b) the defendant was obliged to have a risk assessment carried out, which would inevitably have led to the rectification of the problem of overfilled pallets.[23]

Mr Hore-Lacy was not able to point to any passage in the addresses of counsel for the plaintiff in which these issues were raised at trial.

234. The plaintiff and the other workers[24] called to give evidence never complained of having suffered cut hands. The plaintiff's expert, Purdey, was never asked to relate the problem of cut hands to the question of foreseeability of back injury, nor was he asked what a risk assessment dealing with the problem of workers suffering injury from cut hands would have considered, or whether any such risk assessment might have led to a solution which would have eliminated potential back strains. The principal difficulty from the viewpoint now of the appellant is that this Court is asked to consider arguments which were not pursued at trial, and in effect to speculate on what differing lines of cross-examination might have been pursued and on the conclusions which the jury might have drawn if these issues had been

raised. In my view it would be quite wrong for this Court now to embark on such a speculative process, on a case not run below.[25]

250. In my opinion this appeal should be dismissed for the reasons advanced by Charles, J.A. in his judgment.

[1] See e.g. Kenyon v. Barry Bros Specialised Services Pty. Ltd. [2001] VSCA 3 at [18].

[2] [1964] HCA 39; (1964) 111 C.L.R. 234 at 242-243.

[3] R. v. Lawson John Burrows [2003] VSCA 130 at [30] and [46].

[4] (2001) 75 A.L.J.R. 867 at [44] and [58].

[5] [1986] HCA 33; (1986) 162 C.L.R. 1 at 8.

[6] (1985) 59 A.L.J.R. 481 at 483.

[7] [1988] HCA 12; (1988) 180 C.L.R. 491 per Mason, C.J., Wilson , Brennan and Dawson, JJ. at 496-497.

[8] [2003] H.C.A. 48 at [51]- [53].

[9] Australian Iron and Steel v. Krstevski [1973] HCA 42; (1973) 128 C.L.R. 666 at 666-667.

[10] Unreported, Supreme Court of Victoria, Appeal Division, decided on 2 November 1994, at 5.

[11] Dulieu v. White [1901] EWHC KB 1; [1901] 2 K.B. 669 at 679; Bourhill v. Young [1942] UKHL 5; [1943] App. Cas. 92 at 109-110.

[13] Occupation Health and Safety (Manual Handling) Regulations 1988, reg.2(a).

[14] Sheen v. Fields (1984) 58 A.L.J.R. 93, at 95; Waugh v. Kippen [1986] HCA 12; (1986) 160 C.L.R. 156 at 166-167; Boughey v. The Queen [1986] HCA 29; (1986) 161 C.L.R. 10 at 20-21.

[16] Frost v. Woolworths Ltd. (2000) 144ACTR 19 per Miles, C.J. at [33].

[17] [1963] UKHL 1; [1963] A.C. 837.

[18] Fleming, The Law of Torts, 9th ed. (1998) 240-241; see also Buckley, The Modern Law of Negligence, 3rd ed. (1999) 57-59. See further Dovuro Pty. Ltd. v. Wilkins [2003] H.C.A. 51 esp. per Gummow, J. at [60].

[19] [1991] HCA 23; (1991) 173 C.L.R. 33 at 41.

[20] [1958] VicRp 94; [1958] V.R. 594 at 595.

[21] See, e.g., Liftronic Pty. Ltd. v. Unver (2001) 75 A.L.J.R. 867 at [30] per McHugh, J.

[22] The jury may also have accepted the evidence of Mr Battlay (at trial transcript 563-564) that the plaintiff's injuries were not work-related at all.

[23] See pars.[[]-[] above.

24] Huong, Mayer, Dimovski and Micallef.