MIM v Peachey [1998] QCA 400

3 The second observation I wish to make concerns the appellant's attempt on appeal to bring itself within the exception ("save where it is not practicable for the employer to do so") to the general duty imposed by s.9(1) of the Workplace Act of ensuring the health and safety at work of all employees. It may be that an employer would not fail to perform its statutory duty under s.9(1) if the injury to health sustained by the employee is traceable to some peculiar susceptibility or vulnerability of which the employer did not in fact know and could not reasonably have been expected to foresee or guard against: cf. Waugh v. Kippen [1986] HCA 12; (1986) 160 C.L.R. 156, on which reliance was placed by the appellant in this Court. What is fatal to that submission now is , as Muir J. has pointed out, that the appellant failed to raise the point by its pleading and abandoned it at trial when the matter was raised by the primary judge. In addition, or perhaps in consequence, no proper evidentiary foundation for such a conclusion was ever laid at the trial. The most that can be found in the evidence is what was said by Dr Fraser, which was to the effect that it is unusual to find work boots giving rise to the condition from which the plaintiff was suffering.

4 For these reasons and those given by Muir J., there is no proper basis on which this appeal can succeed.

1 The appellant/defendant appeals from a judgment in which the learned primary judge ordered that the respondent/plaintiff pay the appellant the sum of $60,365.65 and costs to be taxed on the appropriate District Court scale.

2 The respondent commenced work for the appellant at its mine in Mount Isa in 1989 as a labourer. He became a blacksmith's assistant and then a blacksmith's striker. As striker he spent most of his working day on his feet on dirt and concrete surfaces. In performing his duties he wore hard soled boots supplied by the appellant which were similar in nature to boots he had worn in previous occupations. In September 1992, when the plaintiff had been a striker for about two years, he reported to a nurse at the mine complaining of painful feet. Prior to that, in May 1992, the respondent had taken a day off work on account of painful feet. His feet continued to give trouble, he took more time off work and was placed on light duties in January 1993. In October 1993 he was dismissed by the appellant and has not worked since.

3 The learned primary judge expressly found that "the boots were a cause of the symptoms" suffered by the respondent. His Honour found that, even without fault on the part of the appellant, ultimately the respondent would have experienced symptoms of the same nature and severity as those caused by the boots. He found that it was impossible to determine precisely the extent to which work practices of the respondent whilst employed by the appellant accelerated the onset of the respondent's condition and concluded that damages should be calculated on the assumption that, "were it not for the boots, the symptoms would have been postponed for 2½ years".

4 His Honour found that the cause of the respondent's condition was the appellant's breach of its statutory duty imposed by s.9(1) of the Workplace Health and Safety Act 1989 ("the Act").

Application for leave to amend the notice of appeal

5 On the hearing the applicant sought leave to amend the notice of appeal by inserting the following new ground.

"2aa. The Workplace Health and Safety Act 1989 had no application to the applicant's mine to which the Mines Regulation Act, 1964 applied."

6 Section 4(1) of the Act provides that "the Act shall not apply to or in relation to - (a) a mine to which the Mines Regulation Act, 1964-1983 applies;" Paragraph (b) of the definition of "mine" in section 5 of the Mines Regulation Act, 1964 defines "mine", when used as a noun, as including (relevantly) -

"(i) a place where mining within the meaning of subparagraph (a) of this definition is carried on;

(iii) any place or premises ... being maintained or intended for use as a place where mining within the meaning of subparagraph (a) of this definition is to be carried on or for storage of any substance or thing as an associated activity of mining within the meaning of that subparagraph; ...".

Subparagraph (a) of the definition provides inter alia -

(i) to disturb, remove, cart, carry, wash, sift, crush, concentrate, smelt, refine or otherwise deal with any metal, mineral, ore, rock, stone, clay, sand or soil by any mode or method whatever for the purpose of obtaining any metal or mineral; and

(ii) to carry on any operation with a view to or for the purpose of -

(A) exploring or prospecting for mineral occurring naturally as part of the earth's crust;

(B) obtaining metal or mineral from a place where it occurs naturally;

(C) obtaining metal or mineral from its natural state or from a state in which it is mixed with other matter; ...".

7 "Mine" is defined in quite broad terms but the fact that it is appropriate to describe the respondent, in a general and colloquial sense, as having been employed at the appellant's "Mount Isa mine" does not lead to the conclusion that the respondent was employed at "a mine to which the Mines Regulation Act 1964 applies". In order to arrive at such a conclusion it would be necessary to consider matters such as the location of the place or places at which the respondent was employed by the appellant, the work done by the respondent, the relationship those places and such work bore to activities within the definition of "mine" when used as a verb and to the places identified in para.(b) of the definition. As the appellant did not raise the possible application of s.4(1) of the Act in its defence and litigated the matter on the basis that s.9 of the Act applied, it was not relevant to lead or consider evidence in relation to any such matters. The respondent's counsel before us submitted that if the point now sought to be raised had been raised at the trial, the respondent, at the very least would have investigated what evidence needed to be adduced in order to resist the appellant's argument. I accept the accuracy of this submission.

8 In Coulton v Holcombe (1986) 162 CLR at 7-9, it was said in the judgment of Gibbs CJ, Wilson, Brennan and Dawson JJ -

"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 C.L.R. 418, at p. 438; Bloemen v. The Commonwealth (1975) 49 A.L.J.R. 219. In O'Brien v. Komesaroff [1982] HCA 33; (1982) 150 C.L.R. 310, at p. 319, Mason J., in a judgment in which the other members of the Court concurred, said:

`In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh [1892] A.C. 473, at p. 480; Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 C.L.R. 418; Green v. Sommerville [1979] HCA 60; (1979) 141 C.L.R. 594, at pp. 607-608. However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.'

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal."

9 The above observations are of obvious application to applicant's application to amend. There is nothing before us which establishes the correctness of the appellant's new contention or, to express it slightly differently, which demonstrates that the contention is incontrovertible on the evidence already adduced or which could be adduced. I can see no good reason why the appellant should not be bound by the conduct of its case and I would refuse the application.

10 I now turn to the grounds of appeal relied on before us.

The learned primary judge erred in finding a breach of s.9 of the Act.

11 It was argued that the section does not impose absolute liability and that the respondent carried the onus of proving that the appellant "failed to ensure" the health and safety of the respondent. The main point advanced in support of the contention that the respondent failed to discharge such onus was the lack of evidence that the appellant knew or ought to have known that the wearing of firm soled boots "which is and has been a requirement of the work force" at the mine gave rise to any risk that a worker might develop plantar fasciitis or any other such condition. The appellant complained also that "it cannot be the law that the respondent by simply proving the injury at work discharges the burden of proof lying on him to prove his case".

12 The learned primary judge concluded that, as the appellant did not plead that it was not practicable for the appellant to have ensured the respondent's health at work, the appellant's liability under the Act depended merely on "whether the boots significantly contributed to the symptoms".

"An employer who fails to ensure the health and safety at work of all the employer's employees, except where it is not practicable for the employer to do so, commits an offence against this Act."

As his Honour found, the qualification in s.9(1) of the obligation to ensure the respondent's health and safety at work, not being pleaded, was not a matter on which the appellant was entitled to rely. In Rogers v. Brambles Australia Ltd [1998] 1 Qd R 212 (C.A.), the Court following Kingshott v. Goodyear Tyre and Rubber Co Australia Ltd (No. 2) (1987) 8 NSWLR 707, held that a defendant employer had the onus of establishing lack of practicability for the purposes of s.9(1). It would seem to follow from the conclusion reached in Rogers that a defendant wishing to rely on lack of practicability would need to plead the material facts to be relied on in support of any alleged circumstances of exculpation. Such facts would be: "material facts on which the party pleading relies to support the party's ... defence", (O.22 r.1); "matters of fact which would show that the claim of the opposite party is not maintainable" (O.22 r.14) and "grounds of defence ... which, if not raised, would be likely to take the opposite party by surprise, or (which) would raise issues of fact not arising out of the preceding pleadings" (O.22 r.14). That conclusion is consistent with the approach taken in United Kingdom in respect of similar legislative provisions: Nimmo v. Alexander Cowan & Sons Ltd [1968] AC 107; Johnston v. Caddies Wainwright Ltd [1983] ICR 407 (C.A.) and Bowes v. Sedgefield District Council [1981] ICR 235 (C.A.).

14 In the course of the trial, after hearing submissions by Mr Grant-Taylor on behalf of the respondent on this defect in the appellant's pleading, the learned primary judge put to Mr Myers, who also appeared for the applicant on first instance, that it was necessary for the defence to be amended if the appellant wished to rely on lack of practicability for the purposes of s.9(1). Mr Myers' responded "I have difficulty resisting that". After obtaining instructions, Mr Myers informed the learned primary judge that his foreshadowed application for leave to amend the defence was "abandoned". Matters which went only to the question of lack of practicability were thus plainly irrelevant.

15 Section 9(1) does not impose, expressly or implicitly, any test of reasonable foreseeability. A plaintiff will succeed, in the absence of a favourable finding as to practicability, if he or she proves that a defendant employer has not made sure or certain of the plaintiff's "health and safety at work". Here, there are findings which establish that the appellant failed in that respect. Those findings are not challenged in the notice of appeal. Moreover, the appellant's outline of submissions states inter alia -

"3. There was evidence, upon which his Honour was entitled to act, which established that firm soled boots accelerated the onset of what was effectively a degenerative condition. There was also evidence, upon which the trial judge was entitled to act, that soft soled boots, which the respondent was permitted to wear when the condition first manifested itself, would have been less conducive to the development of the condition.

4. ...There was evidence that the wearing of boots over that period (the respondent's working life) was capable of contributing to the onset of the symptoms."

However the learned primary judge, as may be seen from the above reference to his reasons, did not find that liability under s.9(1) of the Act is established merely through the respondent proving injury at work. His Honour's reasons may be paraphrased as follows -

* the appellant employer provided the respondent employee with hard soled boots to wear in the course of his employment;

* the boots contributed to the onset of the respondent's condition;

* consequently the appellant failed to ensure the health of the respondent.

I detect no flaw in his Honour's chain of reasoning. "Ensure" in s.9(1) has its normal everyday meaning of "make certain" or "make sure": see e.g. St Vincent's Hospital Toowoomba Ltd v. Hardy (C.A. 7477, 6 May 1998, unreported). As the appellant supplied the respondent with boots which contributed to the onset of the respondent's condition, it failed to make certain of the respondent's health.

16 It is not to the point to argue that the appellant did not know and was not in a position in which it should reasonably have known that the wearing of firm soled boots gave rise or more significantly contributed to the respondent's symptoms.

For the above reasons, the appellant cannot succeed on this ground.

The action was commenced more than three years after the date on which the cause of action arose and was thus statute barred by operation of s.11 of the Limitation of Actions Act 1974.

17 The appellant's argument was that as the cause of action in tort is complete "when appreciable (or other than purely minimal) damage occurs (Ratcliffe v. V.S. & Border Homes Ltd (1987) 9 NSWLR 390 at 398) and as there was evidence that the respondent was suffering from symptoms of plantar fasciitis at a time more than three years prior to the commencement of the action, the action was out of time. The limitation defence was dealt with in the reasons as follows -

"There is no substance in the limitation defence. The writ issued in April 1995. Within the previous 3 years, the plaintiff suffered symptoms attributable to boots he wore as a result of a continuing breach of statutory duty. No evidence was adduced in an attempt to disentangle those symptoms the plaintiff has suffered as a result of a breach of duty occurring within the limitation period from any which may perhaps be related to a statute-barred cause of action. The defendant has therefore failed to discharge the burden of proof on this issue."

The duty imposed by s.9(1) is a continuing one. The three year limitation period expired on 20 April 1992. The respondent continued to wear the offending work boots for a period approaching nine months after that date

18 The evidence also establishes that if the respondent's condition existed prior to the limitation period, it was aggravated within the limitation period through wearing the boots and that the respondents' ultimate disabling condition was accelerated. In these circumstances the respondent has a claim which is not statute barred and this ground must fail.

19 The damages recoverable though are limited to the further damages resulting from a wrong or wrongs committed within the limitation period. In Adams v. Ascot Iron Foundry Pty Ltd (1968) 89 WN (Pt 2) (NSW) 37, Sugarman AP at 41 expressed agreement with the following statement of principle in respect of a plaintiff who had contracted the disease silicosis outside the limitation period but who alleged that further exposure to dust had aggravated his condition.

"In short, he must show a new wrong committed within the period of limitation and further damage accordingly; and his recovery must be limited to such further damage, which means that his condition must have become worse by reason of the aggravation due to further exposure than it would have become by natural deterioration in the absence of further exposure."

Walsh and Asprey JJA agreed with the conclusions of Sugarman AP on this aspect of the case.

20 The circumstance that damages are difficult to assess and that the medical evidence does not provide a basis for any precise quantification does not result in failure on the part of the plaintiff to recover damages. The tribunal is obliged to make the best estimate it can (Chaplin v. Hicks [1911] 2 KB 786) and that is what the learned primary judge proceeded to do.

21 The foregoing is sufficient to dispose of the ground of appeal under consideration but there is an aspect of the reasons which, in my view, is worthy of mention. As appears from the passage from the judgment quoted in paragraph 17 hereof, the learned Judge did not find it necessary to determine when the respondent's cause of action arose or whether there were breaches of duty outside the limitation period which contributed to the acceleration of the respondent's condition. If the cause of action had been shown to have arisen within the limitation period it may have been necessary to determine the date on which the cause of action arose. If the respondent's damage was caused in part by statute barred breaches of duty and in part by non-statute barred breaches, difficult questions arise as to identification of the extent of the aggravation of the respondent's condition resulting from the non-statute barred breaches of duty. There is also the further question of whether the plaintiff or the defendant bears the onus of identifying the additional damage caused by the non-statute barred breaches.

22 It was said in the majority judgment in Purkess v. Crittenden [1965] HCA 34; (1965) 114 C.L.R. 164 at 168 in the judgment of Barwick C.J., Kitto and Taylor J.J.:-

"We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence."

23 In this case the evidence demonstrated the existence of the respondent's pre-existing condition as well as its nature and likely future development and progress. The evidence on the latter topics was far precise but, arguably, about as precise as the nature of the condition permitted. In those circumstances I doubt that the onus rested on the appellant to satisfy the Court of the extent to which the injury was caused by the actionable rather than the non-actionable breach of duty. However, as this matter was not raised in the grounds of appeal or argued on the hearing of the appeal it is neither necessary nor desirable that I express any concluded opinion on it.

24 The appellant takes issue with two aspects of the award of damages. Firstly it is submitted that the $15,000 awarded for pain suffering and loss of amenities of life was excessive, having regard to the degree of the respondent's disability and to the finding that the condition was accelerated by 2½ years. Secondly, it is submitted that the discounting of the assessment of damages for past economic loss by only 10 percent is insufficient, having regard to the high prospect of the respondent's losing his job as a striker.

25 As for the award of $15,000, the learned primary judge acknowledged, as he was entitled to do, the severe impact on the respondent's life of his crippling ailment. His feet constantly ache. He has been obliged to give up sporting pursuits. Once an active person with the high level of physical fitness, he is now reliant on a walking stick and his disposition and temperament have suffered markedly. The approach taken by the learned primary judge of allowing $6,000 per annum, in my view, was merely a way of stating that it was necessary to limit the pain and suffering component of the award with regard to the acceleration period.

26 In my view, the discount of 10% allowed by the learned primary judge, although perhaps low, cannot be said to be unsustainable having regard to the respondent's good record and his unchallenged evidence that had he not become disabled he had every intention of maintaining his employment at the mine. His Honour seems to have accepted that the respondent, if he lost his employment with the appellant, was likely to have been able to have taken up an offer of employment made to him by a former work mate.

27 In Miller v. Jennings [1954] HCA 65; (1954) 92 CLR 190, Dixon CJ and Kitto J approved the following test -

"In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered."

The following expression of principle in Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729 at 735 was approved by the Full Court in Keefe v. RT & DM Spring Pty Ltd [1985] 1 Qd R 363 and, more recently by the Court of Appeal, in Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 at 264-5 -

"But if the award for loss of future earnings, or for any of the other items, is so far out of line with what the appellate court considers appropriate as to indicate that the assessing judge has erred in principle, and if the substitution of an appropriate award for that item would make a substantial alteration in the total award then the appellate court has the duty to make the substitution and to alter the total accordingly." (emphasis supplied)

28 In my view, it has not been demonstrated that there was "a wholly erroneous estimate of the damage suffered" or any error in respect of one component of the award which, if corrected, "would make a substantial alteration in the total award".