Neill v NSW Fresh Food & Ice Co Pty Ltd

In my opinion nothing appeared and nothing was proved which would support the verdict of the jury.

The appellant, as a servant of the respondent, was required to work in the confined space of a cylindrical milk container, on a slippery surface which the doing of his work necessarily made more slippery still. In such circumstances the risk of his falling and suffering some degree of injury was obvious. The respondent therefore owed him a duty to provide all reasonable protection against the danger of a fall. In fact it gave him no protection at all. At the trial the burden lay upon the appellant of satisfying the jury that some protection was reasonable, and that his injury resulted from the absence of it. I should not have thought that evidence was needed to entitle the jury to be satisfied that some means by which a man might steady himself inside the container could have been provided. There could hardly be any physical difficulty in the way of adding a handrail, for example. Of course, in designing and installing any such thing, care would need to be taken not to create unhygienic corners or crevices, but in these days it is hard to think that that would present any problem. The difficulty that seems to me to stand in the appellant's way is that without evidence from a person qualified to speak on the subject it remained a matter of conjecture whether any handrail or other steadying device could have been so located in the container that, while on the one hand it could be effectually used without undue inconvenience by a person doing the appellant's work, on the other hand it would not create a counterbalancing hazard for such a person by forming a projection which he might accidentally strike. A rail along the top, for example, might be either too high to serve the purpose in view, having regard to the exigencies of the work, or so low that the worker would be in danger of hitting his head on it. There was a complete absence of evidence as to the merits and demerits of a handrail or of anything else that imagination might suggest as a possibly appropriate provision, and particularly as to any deficiencies or drawbacks which, in the circumstances of the appellant's work, might outweigh the advantages of any such provision. For that reason, in my opinion, the verdict given for the appellant cannot be supported.

This is an appeal from an order of the Supreme Court of New South Wales by which a verdict obtained by the present appellant at the hands of a jury was set aside and judgment entered for the defendant.

The appellant obtained his verdict in an action for damages in respect of personal injuries alleged to have been sustained by him whilst in the employ of the respondent as what was described as a "milk receiver". Part of the plaintiff's duties in this capacity consisted of the cleaning, upon the respondent's premises, of "milk transporters" after they had been emptied of their contents. A transporter consists of a container, or tank, more or less of a cylindrical form lined with stainless steel and so mounted on a chassis and wheels as to constitute a particular form of railway rolling stock. So constructed it is used for the bulk transport of milk by rail. The containers in which milk is brought to the respondent's depot are of two sizes but that with which we are concerned was said to be about twelve feet long and about four feet six inches high. An opening was provided on the top of the container at a point equidistant from each end and at the bottom of the container there was a flat portion of some unspecified width but which apparently ran from one end to the other. Running down the middle of the flat portion, or floor, there was a recessed channel which, presumably, led to the valve or valves by the operation of which the contents of the container were discharged. The evidence concerning the construction of the container is of a somewhat imprecise character but, nevertheless, this is the picture which the evidence suggests.

On the day when the appellant is alleged to have sustained his injuries he was inside the transporter and engaged in cleaning it. He had entered the container through the opening in the top and had, in accordance with the usual practice, hosed down the inside with cold water. The evidence is to the effect that after hosing down with cold water it was the practice to continue the cleaning process by brushing the inside of the container with steel wool saturated with soapy water. In order that this might be done the employee engaged in the cleaning process was provided with a bucket containing soapy water which he stood on the floor of the container and in which he immersed a pad of steel wool as occasion required. Finally, the inside of the containers was hosed down with hot water or with a steam hose. The evidence on the latter point is vague in the extreme but this is of little importance in the case because the appellant sustained his injuries whilst he was engaged in the second part of the process, that is to say, whilst he was cleaning down the inside of the container with steel wool.

According to the appellant much of this work is done whilst kneeling on the floor and it appears that all parts of the container can be reached by an employee whilst kneeling or squatting. But it was said to be necessary for the employee so engaged to rise from time to time in order to turn or move his position and the plaintiff says that it was whilst he was engaged in such a manoeuvre that he fell and received his injuries. He was, he says, "standing upright, bending and turning around in a twisting motion to the right" when he slipped and struck the back of his head. Nevertheless, he finished the process by steam cleaning the interior of the container, but whilst leaving the container he felt pains in his arms. It is unnecessary to discuss the nature of the appellant's injuries or to pursue the further questions whether the jury were entitled to find that his subsequent myocardial infarction was a consequence of his fall, or, whether the jury were entitled to take this alleged injury into account in assessing damages.

The substance of the appellant's complaint was that the floor of the container was very slippery, coated as it was with a film of milk residues, and this condition was made worse as soapy water drained from the sides of the container on to the floor. There was, he says, nothing in the container "to hold on to" and in the circumstances it is asserted that he was exposed to unnecessary risk of injury. According to his evidence he had fallen on other occasions but again the evidence is vague and we quote: "Q. You say, I think, that you had fallen down on some previous occasions, inside? A. Yes. Q. And on those occasions you had fallen when you were in a squatting position, cleaning the inside of the container? A. Yes. Q. And I suppose on those occasions your foot had slipped, had it? Was that what caused you to fall? A. Yes. Q. When that happened I suppose you sort of sat down, did you? A. I was able to save myself. Q. So on the other occasions your foot has slipped, but you have not actually fallen? A. That would be it. Q. Is that correct? A. Yes. Q. So, except for this day that you tell us about you had never actually fallen before? A. Yes, I have slipped and fell before. Q. You had actually fallen before? A. Yes, I fell on the floor. Q. On those previous occasions you had fallen because your foot had slipped? A. Yes. Q. When you were in a crouching position cleaning the walls? A. Yes. Q. And on those occasions when your foot slipped I suppose you simply sat down? That is what the fall consisted of? A. Yes. Sometimes I could hold on to the end of the tank; I could hold on to the top of the tank. Q. But on the occasions when you say you weren't able to save yourself and your foot slipped, the result was that you sat down on the floor of the tank? A. Yes." Nevertheless the appellant, according to his evidence, had complained to one or other of the foremen on more than one occasion about the slipperiness of the containers but nothing was done and he continued to do the work in the knee-high rubber boots which had always been provided.

A feature of the case is that no attempt was made at the trial to support the appellant's case by evidence tending to show that the respondent's practice in relation to the cleaning process in question involved any departure from standard practice. Nor, was there any attempt to show what steps, if any, could have been taken to eliminate or minimize the risk if, in fact, the practice exposed its employees to any real risk of injury. However the learned trial judge did not think this of any importance for, in refusing to direct a verdict for the respondent at the trial, he observed that it was not for him or for the plaintiff to say what a reasonable employer ought to do, or what steps ought to be taken and then went on to express the view that there was sufficient material in the case "on which the jury is entitled to consider this matter in accordance with what I understand to be the modern-day characterization of the tort of negligence". In the result it was left to the jury to consider whether in the circumstances disclosed by the evidence "some precautionary measures" or "some steps to prevent any injury as the result of the slipping of a person in the position of the plaintiff" should have been taken by the respondent. Accordingly the jury were left to say, completely at large, whether some or other unspecified steps could and should have been taken by the respondent in order to discharge its duty to the appellant to exercise reasonable care.

No doubt in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it. Hamilton v. Nuroof (W.A.) Pty. Ltd. [1] was such a case and many other examples may be found where the problem was considered to be capable of resolution by the application of common knowledge. (See e.g. Smith v. Baker & Sons [2] ; Wilsons & Clyde Coal Co. Ltd. v. English [1] ; D'Urso v. Sanson [2] ; Grantham v. New Zealand Shipping Co. Ltd. [3] ; Speed v. Thomas Swift & Company Ltd. [4] ; Rees v. Cambrian Waggon Works, Ltd. [5] ; Dyer v. The Southern Railway [6] ; Harris v. Brights Asphalt Contractors Ltd. [7] ). Perhaps, the most recent case of this type is Dixon v. Cementation Co. Ltd. [8] where, after referring to the dictum of Viscount Simon in Colfar v. Coggins & Griffith (Liverpool) Limited [1] Devlin L.J. went on to say: "I do not think it means that, in every case where an unsafe system of working is alleged, it is necessary for the plaintiff to undertake the burden of pleading, and proving, an alternative system of work which could have been adopted and which would have been safe. That is for the employer to provide. There may be cases in which the plaintiff will not get very far with an allegation of unsafe system of work unless he can show some practicable alternative, but there are also cases - and I think this is one of them - in which a plaintiff can fairly say: "If this is dangerous, then there must be some other way of doing it that can be found by a prudent employer and it is not for me to devise that way or say what it is" " [2] .

1. (1956) 96 C.L.R. 18. 2. [1891] A.C. 325. 3. [1938] A.C. 57. 4. [1939] 4 All E.R. 26. 5. [1940] 4 All E.R. 258. 6. [1943] K.B. 557. 7. (1946) 62 T.L.R. 512. 8. [1948] 1 K.B. 608. 9. [1953] 1 Q.B. 617. 10. [1960] 1 W.L.R. 746. 11. [1945] A.C. 197. 12. [1960] 1 W.L.R., at p. 748.

These observations, however, involve no departure from the proposition that in order to enable an injured workman to recover damages from his employer the evidence must be such as to justify a finding of negligence on the part of the employer and, if the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the workman to risk of injury. In other words, it must appear that the employer failed "to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation": see per Lord Tucker in General Cleaning Contractors Ltd. v. Christmas [3] . Whether or not there has been such a failure on the part of the employer may, in some cases be resolved, by the application of common knowledge; in others it may be necessary to show a departure from long-established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimize the risk was reasonably available. Additionally, of course, it must appear that the plaintiff's injuries would have been prevented if the standard practice or the alternative method had been employed. No doubt also the answer to this question may, in many cases, follow almost as a matter of course, but the recent case of McWilliams v. Sir William Arrol & Co. Ltd. [1] serves as a reminder that the onus of establishing this proposition is always on the plaintiff.

1. [1953] A.C. 180, at p. 195. 2. [1962] 1 W.L.R. 295.

It was, no doubt, open to the jury in the present case to say that the evidence concerning the slippery condition of the floor of the container involved the appellant in some risk of injury. No doubt, it was also open to them, within the bounds of reason, to say whether the risk was substantial or not. But it was a risk which was inherent in the task itself. This circumstance, of course, is not in itself of undue significance for as has been said "There is, one might think, an element of risk in the performance of the most simple of operations in an industrial establishment; sometimes the risk is both grave and apparent whilst in others it may be said to be trivial and remote. Between these two extremes the degree of risk may vary infinitely" (Smith v. The Broken Hill Pty. Co. Ltd. [2] ). But assuming that, upon the evidence, the jury were entitled to say that the appellant was exposed to a risk which was not trivial or remote, it was still necessary for him to establish that the risk was, as, indeed, was alleged in the declaration, an unnecessary one. It was, of course, unnecessary, if by the adoption of some reasonable form of precaution or safeguard it could have been eliminated or minimized and apparently the jury were of the opinion that this could have been done. But we are entirely in the dark concerning the steps which they thought that the respondent, as a reasonably prudent employer, might have been expected to take. Before us, however, the suggestion was made from the bar table that it was open to the jury to find that the appellant should have been provided with "non-skid boots", or alternatively, that the interior of the container should have been provided with a handrail. No suggestion was, however, ventured as to how or where the handrail should have been fitted. Either of such conclusions, it was said, was open to the jury as a matter of common knowledge. But if there is any common knowledge that there exist such things as non-skid boots, effective in the circumstances alleged in the evidence, we are not parties to it and we do not think that it was open to the jury so to find. Further, although it may have been physically possible for a handrail to be fitted to the inside of the container there seems to be no evidence in the case to show whether the container was the property of the respondent or of the New South Wales Government Railways, or whether it was at liberty to instal such a fitting. But leaving this objection aside it is by no means a matter of common knowledge that the provision of such a fitting, inside a stainless steel container designed for the bulk carriage of milk and, therefore, subject to the most scrupulous requirements as to cleanliness, was permissible or appropriate. In our view the verdict cannot be supported on either of these grounds and, since no other grounds were suggested and we, ourselves, can see none, the appeal should be dismissed.