TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Tort - Essentials of action for negligence - Standard of care - Generally - What constitutes - Response of hypothetical employer.

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, applied.

Judgment Number: [2006] TASSC 24

3 In lieu it is ordered that judgment be entered for the appellant against the respondent.

1 On 27 January 2000, the respondent suffered an injury in the course of his employment with the appellant. On 13 May 2002, he commenced proceedings for damages for negligence, breach of an implied term of his contract of employment and breach of statutory duty. On 10 November 2005, after a trial without a jury, Hill AJ ordered that judgment be entered for the respondent against the appellant for $467,447.10 and costs to be taxed as between solicitor and client.

2 There is an appeal and a cross-appeal. The notice of appeal contains 11 grounds. Two of those grounds were abandoned and two were conceded. Four of the remaining grounds of appeal challenge the learned trial judge's findings with respect to the reasonable employer's response to a foreseeable risk of injury and the causal connection between the pleaded breaches of duty and the loss, injury and damage. The remaining grounds of appeal challenge findings made with respect to the extent and measurement of the respondent's loss, injury and damage. The cross-appeal alleges error by the learned trial judge in his assessment of 20 per cent contributory negligence.

3 The respondent was almost 27 years old when the accident happened. He described himself as "not the best of students" at school. In his last few years at school he worked part-time in a supermarket and after he left college at the start of year 12 he continued in that employment full-time. The respondent worked continuously in a supermarket for the next 2½ years. He said that he "pretty much ran the place when [the owners] were away, so I got to learn everything". After the respondent left the supermarket, he took up casual labouring work at a number of places. He worked for a wine wholesaler, packing and delivering orders, and in fish processing plants, unloading fish and working on the factory floor. He worked as a driveway attendant at a service station and started with the appellant at the end of 1995. At first, the respondent was employed as a casual factory hand and learned to operate some of the machinery. The respondent became a permanent employee in August 1999 and was so employed when the accident happened the following year.

4 Before the accident happened, the respondent's duties included loading and unloading containers from and onto the loading dock at the appellant's factory. This work was usually done with a forklift truck. The respondent said that he enjoyed good health prior to the accident, although in the month or two before 27 January, he had been "feeling pretty stiff and sore and had a lot of tightness" which he said was like "carrying a bag of wheat on [his] shoulders". However, this complaint did not interfere with his work or the sport that he enjoyed playing. Unbeknown to anyone, there was a degenerative central disc bulge in the respondent's spine at L4/5. Until the accident, it had been asymptomatic.

5 As part of its business, the appellant bought plastic bottle tops from Brickwood Holdings Pty Ltd in Victoria. They were transported to Hobart in containers. The bottle tops were packed in cardboard boxes, 52 centimetres long, 30 centimetres wide and 28 centimetres deep. A full box weighed between 6.5 and 7.5 kilograms. Ordinarily, the boxes were stacked on pallets inside the container and wrapped in shrink wrap plastic. The respondent said that on top of each pallet load there usually were two layers of unwrapped boxes, but he may have been mistaken about that and there may have been only one layer of loose boxes on top of each pallet load. At all events, the practice was for the trailer to be reversed back until the end was flush with the floor of the loading dock. The rear doors of the container were opened. The loose boxes on top of the pallet closest to the rear of the container were removed and the forklift driven forward to pick up the pallet. The loaded pallet was then withdrawn and the boxes taken to the appellant's store. This procedure was repeated for each pallet load. The second and subsequent rows of pallets inside the container were pulled by the forklift truck to the back of the container by means of a hook attached to the pallet. When the pallet was in position, the tines of the forklift truck were driven into the pallet and it was lifted up and removed.

6 The day before the accident, the respondent was told that a load of plastic bottle tops was due to arrive the next day and he was asked if he would work overtime to unload them. The respondent agreed to do this. The load arrived about 10.30am on 27 January 2000. The respondent, who had done this job on previous occasions, got a forklift and drove onto the loading dock. Standing there was his supervisor, Mr Stranger, and the driver of the prime mover. The respondent said that he noticed that the trailer was lower than the loading dock and that he would not be able to unload from the loading dock. He told the driver to park the trailer "alongside" the loading dock. The driver moved the trailer to a position roughly parallel to the loading dock, but about two metres away from it. He lowered its front legs, unhooked the prime mover and drove off.

7 The respondent drove his forklift off the loading dock and around next to the trailer. He took with him some empty pallets because the boxes inside the container were loose, not stacked on pallets and not shrink wrapped. The order form for this load shows that this method of loading the container was done at the request of the appellant. There was no evidence to explain why this request had been made.

8 The slope of the ground was such that the rear of the trailer and thus, the rear of the container, were sloping slightly backwards. The respondent opened the right hand rear door of the container. As he did so, he saw that the top boxes were about to topple out. He immediately shut the door. The respondent then got on the forklift, picked up a pallet and approached the rear of the container. He lifted the pallet and drove the forklift truck forward so that the edge of the pallet was about a foot above the floor of the container and hard up against the left hand door to hold it shut.

9 The respondent climbed onto the pallet and carefully opened the right hand door of the container. With his left foot on the pallet, he used his right foot to prevent the door from swinging open by force of gravity, any more than was just wide enough to enable him to reach in and grab the loose boxes that were in danger of toppling out. Inside the right hand side of the container, there were two piles or pillars of boxes. Both piles or pillars were stacked so that the sides (52 centimetres) faced the rear doors and thus, the respondent. Each pile comprised seven boxes. The respondent thought that on top of the first two right side piles there was enough space to put two more boxes. He said that behind the first two piles, the boxes were stacked right up to the roof of the container.

10 The respondent said that the top three boxes on each pile were unstable so he quickly took hold of each one, twisted around and put them down on the pallet on which he was standing. Having removed these six boxes, the rest of the load appeared to be stable, so he opened the right hand door wide. Then he stood with his left foot on the pallet and his right foot on the edge of the container and took another box from each pile and placed it on the pallet. Next, he picked up a box from the pile closest to the centre of the container and turned or twisted about 45 degrees to put it down on the pallet. As he did so, the respondent experienced a sudden very sharp pain in his lower lumbar spine. He said that the pain was so bad that he thought he was going to "pass out". He got himself to the ground and attracted the attention of another employee. Mr Stranger was called to the scene. The respondent was taken to hospital in an ambulance.

11 The box that the respondent was removing from the container when he experienced the sudden pain, was the third box up from the floor of the container and therefore about 56 centimetres, or about knee high, off the floor of the container when the respondent picked it up. Because the respondent was putting the boxes on the pallet on which he had one foot, he was unable to move his feet during the short time it took him to pick up the six unstable boxes and the three boxes from the stable piles, twist around and put each down on the pallet.

12 But for the onset of pain, the respondent would have abandoned his pallet platform once he had put the remaining five boxes from the two rear-most piles onto the pallet. He would have then stepped into the container and completed the unloading. Once inside, the respondent would have been able to move his feet freely and substantially reduce the degree of twisting in order to put the boxes on pallets.

13 The learned trial judge found that on 27 January 2000 the respondent suffered an injury to his lower back; a lower back that was vulnerable to injury. The precise nature of the physiological change was not identified, but there was a finding that the injury caused the respondent considerable pain.

14 In his cross-examination, the respondent told the learned trial judge that he just worked out for himself how to unload the trailer and described the task as "common sense". With respect to the weight of the boxes, he agreed that they were "featherweight" to him and that on previous occasions he had manually unloaded larger and heavier loose boxes from a container without any difficulty.

15 The learned trial judge found that the accidental injury happened in accordance with the foregoing outline of the facts. He found that the evidence of the respondent was "satisfactory and acceptable". His Honour then set out the particulars pleaded with respect to each cause of action, viz:

"[A] PARTICULARS OF NEGLIGENCE AND/OR BREACHES OF AGREEMENT

The Defendant, its servants and/or agents were negligent and/or committed breaches of agreement in that it, he or they:

(a) failed to adequately instruct and/or instruct the Plaintiff in relation to safe manual handling techniques;

(b) requested or permitted the boxes not be palletised;

(c) required the Plaintiff to unload the container when the boxes within it were not secure;

(d) required or allowed the Plaintiff to unload the container in the manner in which he did when it knew or ought to have known that the Plaintiff would be exposed to a risk of injury by reason of the fact that the boxes were not secure and likely to fall;

(e) permitted the Plaintiff to unload the container in the manner in which he did when it was unsafe to do so;

(f) failed to provide any or any adequate assistance to the Plaintiff to unload the boxes so it was not necessary for him to hold the container door partly shut and simultaneously unload the boxes;

(g) failed to devise or maintain a safe system of unloading the containers when the loading bay was unable to be used;

(h) failed to ensure the trailer or truck delivering the container was able to be backed up to the loading dock;

(i) failed to comply with provisions of the National Standard for Manual Handling referred to below.

The Defendant committed breaches of statutory duty in that it, he and/or they:

(a) failed to comply with section 9 of the Workplace Health and Safety Act 1995 in that it, he and/or they failed to ensure so far as was reasonably practicable that the Plaintiff was, while at work, safe from injury and risks to health and in particular it failed to provide and maintain so far as was reasonably practicable:

(iii) it failed to provide information, instruction, training and supervision reasonably necessary to ensure that the Plaintiff was safe from injury and risks to health.

By way of particulars of (i) (ii) and (iii) the Plaintiff repeats paragraphs 10 [A] (a) to (i) inclusive.

(b) Failed to comply with regulation 65 of the Workplace Health and Safety Regulations in that:

(i) it failed to identify the risks that the Plaintiff was exposed to injury by performing the tasks in the manner in which he did;

(ii) it failed to examine and assess the tasks performed by the Plaintiff which were likely to be a risk to the Plaintiff's health and safety;

(iii) it failed to ensure as far as workable that the risks of injury to which the Plaintiff was exposed were controlled."

16 The learned trial judge cited the seminal passage in the judgment of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48. He then said at par 50:

"The question is "whether the plaintiff has established on the balance of probabilities, that the defendant's response to that risk of injury was less than would have been the response of a reasonable employer placed in the same situation as the defendant". See Underwood J (as he then was) in Stokes v Blue Line Laundry Inc [1998] TASSC 114."

17 Having correctly directed himself with respect to the law, the learned trial judge discussed some of the evidence over the following 20 paragraphs. The discussion included evidence given by Mr O'Sullivan, an ergonomist and safety consultant to the effect:

* there was a risk of injury because the lifting included rotation of the spine; and

* the risk increased because it was not possible to move the feet while lifting and rotating.

18 The learned trial judge referred to evidence to the effect that the appellant had given the respondent no training in lifting weights. At par77, the learned trial judge said:

"In ordering the boxes unpalletised, the defendant knew, or ought to have known, that they would be loose within the container. The usual method of using a forklift truck to deal with the load would not be appropriate in these circumstances. It seems that it was work requiring two men to be involved. To have someone assist the plaintiff, at least initially, to unload sufficient of the boxes to create an area on which to stand on the container to complete the task, would not have been onerous, expensive or inconvenient. The task involved the movement of over 700 boxes and the repetition of movement should have also been considered. The risks were not far-fetched or fanciful ones."

19 No criticism can be made of the first two sentences in that paragraph, but it seems to me with respect, an error to suggest that it was work for two men, at least, until there was sufficient space to stand in the container. Two men standing on the pallet would provide less space for unloading and make the task more difficult, and one man standing on the ground would provide no useful assistance to the other standing on the pallet. The fact that 700 boxes had to be unloaded is beside the point because once there was a space in the container on which the respondent could stand, the task he had to perform would have been different from that involved in unloading while standing on the pallet. Further, a breach of duty either occurred or did not occur after moving only nine boxes.

20 After referring to some more of the evidence, the learned trial judge said, at par82:

"Turning to the particulars of negligence against the defendant, I find that the plaintiff has established negligence in each of the particulars alleged in par10(a) to (i) inclusive."

21 From the learned trial judge's reasons for judgment, it appears to me that his Honour approached the task at hand in this way:

* the appellant did nothing in response to that risk;

* therefore the appellant breached the duty of care it owed the respondent.

22 His Honour then proceeded to find that the duty was breached in each of the nine ways alleged in the particulars, without examining any causal connection, if any, between each of those breaches and the injury. Although the learned trial judge correctly stated the law, he failed to correctly apply it to the facts. He failed to examine the question of what would have been the response of the reasonable employer to the identified foreseeable risk.

23 The hypothetical reasonable employer would have been situated as was the appellant. It would have known that the container load of boxes needed unloading and that those boxes were not shrink wrapped and not loaded onto pallets. Upon the arrival of the container, the hypothetical reasonable employer would have become aware that the trailer was too low for the container to be unloaded from the loading dock. It would have known the dimensions of the boxes and that each weighed between 6.5 and 7.5 kilograms. Finally, it would have seen that when the door of the container was opened, some of the boxes were at risk of falling out. With respect to the respondent, the hypothetical reasonable employer would have known that he had worked about the factory for over four years doing a variety of manual work, including unloading boxes larger than the ones in the container.

24 Mr Read, counsel for the appellant, submitted that the hypothetical reasonable employer would have done neither more nor less than that which the appellant did. He accepted that it might be said that permitting the respondent to stand on the pallet should have been stopped because there was a danger that he might fall off, but the injury was not caused by that possible breach of duty. Mr Read submitted that, for the reasons that I have already discussed, the provision of an assistant would not have reduced the risk of injury. He submitted that because only two piles or 14 boxes had to be moved before the respondent could get into the container, a reasonable employer would have done nothing to avoid the foreseeable risk of injury arising in the few minutes it would take to remove a very small number of boxes while standing in a fixed position with one foot on the pallet and one foot on the edge of the container. Important to Mr Read's submission was the evidence that each box only weighed between 6.5 and 7.5 kilograms, considerably less than a carton of stubbies or cans of beer that the respondent said he regularly bought and lifted into and out of the boot of his car.

25 During the course of argument, counsel for the respondent, Ms Taglieri, was asked to submit what she contended the reasonable employer would have done in the circumstances that confronted the appellant on the morning of the accident. She submitted that upon foreseeing the risk of injury, the hypothetical reasonable employer would have summoned the return of the prime mover and sent the container back to be put on a trailer, the same height above the ground as the loading dock, and then redelivered. I do not accept that a reasonable employer would have done this to avoid the risks arising from lifting 14 boxes, each weighing between 6.5 and 7.5 kilograms in the manner adopted by the respondent. The magnitude of the risk and the likelihood of its occurrence were very small and the inconvenience of sending the trailer back would have been considerable. I agree that picking up a box and rotating the spine to place it on the pallet gives rise to a risk of injury, but most manual tasks give rise to a foreseeable risk of injury, and the number and nature of the movements that the respondent was required to make to move 14 boxes and the weights he was required to lift, were the kind of movements and weights that factory workers would be expected to make and lift in work places throughout the country, even with the feet unable to move to reduce the degree of rotation of the spine.

26 Ms Taglieri submitted in the alternative, that upon the arrival of the container, the hypothetical reasonable employer would have undertaken a risk assessment of the kind described in the National Code of Practice for Manual Handling. Having regard to the nature of the task, unloading a few boxes that the respondent agreed could be described as featherweight, I think it most unlikely that a reasonable employer would have undertaken a risk assessment before permitting the unloading to commence. The risk assessment form included in the National Guidelines was annexed to Mr O'Sullivan's proof of evidence and tendered in evidence. There are 16 questions to be answered. It is not without significance that had such an assessment been undertaken, the answer to the majority of questions would have been in the negative, indicating a low risk of injury. More importantly, even if the reasonable employer had undertaken a risk assessment, the appellant's failure to do so was not causative of any injury. The question remains, what would the reasonable employer have done after having completed the risk assessment?

27 Ms Taglieri made a further alternative submission, namely, that the reasonable employer would have summoned the return of the prime mover and directed that the trailer be backed up to the loading bay. The respondent could then have stood on the loading dock and pulled out the top boxes and placed them on a pallet on the loading bay next to him. He would have been free to move his feet as he unloaded, thus reducing the need to rotate his spine. Once the top boxes had been removed, Ms Taglieri submitted that the reasonable employer would have got the prime mover to pull the trailer away from the loading dock so the respondent could have unloaded the lower boxes whilst standing on the ground. Once the two rear-most piles of boxes had been thus unloaded, the respondent could have climbed up on the trailer, stood inside the container, and unloaded the rest of the consignment.

28 I cannot accept that the reasonable employer would have so responded to the foreseeable risk. As I say, the magnitude of the risk was small and the likelihood of its occurrence remote. The task for the respondent was simple. The boxes were not heavy. The number was few. The time involved was short. In my view, the reasonable employer would have done exactly what the respondent did. It was, as the respondent said, common sense. This is a case to which the observation of the Chief Justice of the High Court of Australia in Commissioner of Main Roads v Jones [2005] HCA 27; (2005) 215 ALR 418 at 420 is apposite:

"... the case provides another example of the danger involved in considering warnings without making due allowance for the distorting effect of litigious hindsight. The matter was discussed in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 441-2. When a foreseeable risk has eventuated, and harm has resulted, the particular risk naturally becomes the focus of special attention."

29 On several occasions in his reasons for judgment, the learned trial judge referred to what the appellant could have done to avoid the foreseeable risk of injury. With respect, it is not to the point to ask what the appellant could have done to avoid the risk of injury. The question is what ought the appellant have done, or what ought the reasonable employer have done, to avoid the risk of injury? Obviously, the risk of injury could have been avoided in a number of ways, including not unloading the container at all.

30 I am of the view that in failing to ask the critical questions and examine the evidence in the light of those questions, the learned trial judge fell into error. In my view the conclusion of the learned trial judge that the appropriate inference to be drawn from the undisputed facts and the facts that he found was that the appellant was in breach of the duty it owed the respondent by virtue of its common law and contractual obligation was erroneous and should be set aside.

31 Insofar as the respondent based his claim on breach of statutory duty, he first relied upon the provisions of the Workplace Health and Safety Act 1995 ("the Act"), s9(1)(a) and (c). These statutory provisions are reproduced in the particulars set out in the statement of claim and repeated at par15 of these reasons for judgment. The statutory obligations are only imposed insofar as is "reasonably practicable". With respect to the meaning of that expression, enacted in a comparable statutory environment, McHugh JA said in Kingshott v Goodyear Tyre & Rubber Co Australia Ltd (No 2) (1987) 8 NSWLR 707 at 728:

"In my opinion s 40 on its proper construction does not impose an obligation to provide and maintain safe means of access which is only excused if the occupier of the factory can prove that it was not reasonably practicable to do so. The verbs 'shall be provided' and 'shall be maintained' are qualified by the phrase 'so far as is reasonably practicable'. Thus the obligation which the section imposes is a qualified one. It is an obligation to provide safe means of access only 'so far as is reasonably practicable'. Likewise the obligation imposed by s 40(2) is conditioned by the words 'so far as is reasonably practicable'. Accordingly, the onus lies on anybody alleging a breach of the obligation imposed by s 40(1) to show that the occupier failed so far as was reasonably practicable to provide safe means of access to the place at which the person had to work."

See also Interstruct Pty Ltd v Wakelam (1990) 3 WAR 101 at 110.

32 Secondly, the respondent relied upon the provisions of the Workplace Health and Safety Regulations 1998, reg65. It provides:

In addition to the hazard identification, risk assessment and control of risk requirements of Division 1 of Part 3, an accountable person in a workplace must take all reasonable steps to ensure that the National Standard for Manual Handling, issued by Worksafe Australia, is complied with in the workplace."

33 The National Standard for Manual Handling incorporates the National Code of Practice for Manual Handling. Together they comprise 75 pages. The document is clearly designed to cover every conceivable manual lift that might occur in a multitude of different work places. When asked, Ms Taglieri submitted that the respondent relied upon reg17 which is enacted in the Regulations, Div1, Pt3 and provides:

(1) An accountable person, as far as is reasonably practicable, must -

(a) identify all hazards arising, or which may arise, in a workplace; and

(b) assess the risk associated with those hazards; and

(c) implement appropriate measures to control that risk."

34 Indeed, the particulars of the alleged breach of reg65 set out, with appropriate adjustment, the provisions of reg17. As is the case with the Act, s9, reg17 governs the statutory obligations with the qualification that they are only to be complied with so far as is "reasonably practicable".

35 In his reasons for judgment, the learned trial judge discussed the medical evidence and made a finding that the injury was caused at work on 27 January 2000. He did not make a finding as to the precise event that caused the injury. It appears likely that it was caused by rotating the spine to put the ninth box down on the pallet, as that was when he suffered sudden, unexpected and severe pain in his lower lumbar spine. As I have mentioned earlier, his Honour found all the pleaded particulars of the breach of duty proved, but made no examination of whether there was any causal connection between any one of them and the injury. For example, particular (c) alleged it was a breach of duty to require the respondent to unload the container when the boxes within it were not secure. The evidence was clear that at the time of the accident, the load was secure and therefore even if it was a breach of the duty of care to require the respondent to unload the container when the load was not secure, that breach was not causative of the injury sustained. With respect to the alleged breaches of duty, the learned trial judge took the same approach. He set out the Act, s9(1), and the Regulations, reg65. He then cited a passage from Menzie v Les Walkden Enterprises Ltd [2000] TASSC 150 and said at par87:

"The evidence establishes that the plaintiff received no training in manual handling. This type of activity was not uncommon on the defendant's premises. There is no evidence that such training was difficult or expensive to provide. The National Standard applies to the defendant's operation of its workplace. The evidence of Mr Goodrick was also that no such training was provided and his evidence was not challenged on that point. I find particular (a)(iii) proved. I also find particular (b)(i), (ii) and (iii) proved for the reasons mentioned above."

36 There was no examination of any causal link between the found statutory breaches and the injury suffered. Further, there was no consideration given to what might have been reasonably practicable nor what might have been "reasonable steps." With respect to the alleged breaches of the Act, s9(1)(c), they were neither reasonably practicable nor reasonably necessary for the reasons I have given for concluding that there was no breach of the common law duty of care or breach of an implied term of the contract of employment. With respect to the alleged breaches of reg17, again for the reasons I have given, there was no causal connection between a failure to identify and assess the risks and the injury, and there were no appropriate measures that were reasonably practicable to implement to control the risk of injury.

37 The remaining grounds relate to damages. One of these grounds relates to the finding by the learned trial judge that the respondent had lost his entire earning capacity. The evidence was to the effect that his capacity to earn was impaired by back pain and by damaged cognitive function. The respondent took prescription drugs to ease the pain in his back. He also suffered a head injury in a car accident in June 2002. There was some evidence that his cognitive deficit might have been due to the car accident and some evidence that it might have been due to the consumption of prescription drugs taken for pain relief. This evidence was not referred to at all by the learned trial judge and no findings were made with respect to it. It was significant evidence and called for a decision as to whether it left the respondent with the onus of proving that the cognitive deficit was due to the drug consumption, or whether the onus of proof remained with the appellant, requiring it to establish that the cognitive deficit and its consequences were not due to its tort. Upon the hearing of the appeal, both counsel initially agreed that if the grounds relating to liability failed but the grounds relating to damages succeeded, the Court should order a new trial on damages. On reflection, Mr Read thought that perhaps this Court should attempt to assess damages itself. In the end it was agreed that if the grounds of appeal on liability failed, but those relating to damages succeeded, the Court should hear further from counsel before deciding whether the Court should assess damages itself or order a new trial.

38 Generally, it is desirable that the Court determine all grounds of appeal. (As to this proposition in a different context, see Jones v R [1989] HCA 16; (1989) 166 CLR 409.) However, as I would allow the grounds of appeal relating to liability, set aside the judgment and in lieu thereof order that judgment be entered for the appellant against the respondent, to determine the grounds of appeal relating to damages would involve the parties in extra expense that would be wasted unless the High Court took a different view on the issue of liability. Accordingly, I will not consider the grounds of appeal relating to damages.

39 I agree with Chief Justice's reasons for judgment and the orders he proposes.