Parsons v J.J. Richards & Sons Pty Limited

PARTIES: Frederick Michael Parsons (Appellant) J.J. Richards & Sons Pty Limited (Respondent)

COUNSEL: LT Grey (Appellant) PJ O'Connor (Respondent)

SOLICITORS: Slater & Gordon (Appellant) Ellison Tillyard Callanan (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40539/07

BEAZLEY JA GYLES AJA HISLOP J

Tuesday 2 December 2008 Frederick PARSONS v JJ RICHARDS & SONS PTY LIMITED Judgment 1 BEAZLEY JA: I have had the advantage of reading in draft the reasons of Gyles AJA. 2 The facts and the reasons of the trial judge are fully set out in his Honour's reasons and it is not necessary to repeat them. I have, however, come to a different conclusion in respect of liability from his Honour, in respect of which I am able to express my views briefly. 3 In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 the High Court reiterated the well-known principles governing an employer's duty of care. The Court said, at [12]: "The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury ( Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J). If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards ( Smith v The Broken Hill Pty Co Ltd [1957] HCA 34; (1957) 97 CLR 337 at 342 per Taylor J). The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work ( Smith v The Broken Hill Pty Co at 342-343 per Taylor J; Da Costa v Cockburn Salvage & Trading Pty Ltd [1970] HCA 43; (1970) 124 CLR 192 at 218 per Gibbs J; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 500 [128] per Kirby J.)." 4 In Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Mason, Wilson and Dawson JJ emphasised that the nature and extent of the employer's duty had, as a matter of legal principle, remained constant. In this regard, the comments of McHugh JA in this Court in Bankstown Foundry Pty Limited v Braistina (New South Wales Court of Appeal, 12 April 1985, unreported), that the standard of care "had moved close to the border of strict liability", were said to be unfortunate. Nonetheless, their Honours stated, at 308, that the standard of care was "not a low one": see O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, at p 230. 5 The appellant's submission to this Court as to why his employer was negligent was within short compass. The respondent had given some general instructions not to lift heavy loads. There was, however, a specific direction that the drivers were to clean up spillages on driveways. This, as Gyles AJA notes, was an important direction. The appellant acknowledged he knew that the bin that had toppled over was heavy and that he should not pick it up; he knew that he could have called upon other garbage truck drivers in the vicinity for assistance; and he also knew he had a discretion to leave the fallen garbage bin where it was. The particular action which the employee took was left very much to his own discretion. 6 The key to the manner in which the appellant acted on the morning of the accident is found in his cross-examination, when he said, relevantly: "A. … I tried to grab the handle and feel the weight like this, but there was no like, it didn't even move, budge a bit, so I didn't even attempt it. … I figured it was very heavy. That's why I just thought I'd just feel it, and see if it was too heavy. … I didn't try and lift it, though. I just sort of felt it with my arms, like, it didn't budge so I didn't even attempt it.

Q. You knew then, didn't you, that you should have got back in the truck and got on the radio, and asked for assistance? A. No, no. I used my judgment. I knew about the safety issues. I mean, we'd done it a thousand times. But my judgment was it was obviously too heavy to lift and they're a lot easier to drag if they're laying on the ground, because it's got a wide lip . … I assessed the risk and didn't see a problem with dragging it out of the way.

Q. You knew it was extremely heavy, and you knew that you should have got assistance, didn't you? A. No.

Q. You knew, whether or not you should have got assistance, that there was assistance readily at hand? A. I knew there was assistance ready, yeah." (Emphasis added) 7 The appellant's actions in dragging the bin were clearly an error of judgment on his part. However, the employer knew that its employees, including the appellant, were from time to time in the course of their round, confronted with heavy bins and with spillages. In the directions given to the employees, including the appellant as to how the work was to be performed, there was a specific focus on how spillages were to be dealt with. Although the appellant had been directed not to lift heavy items, this was a direction given in very general terms. He was informed that he should seek assistance from other drivers if he encountered a lift that was too heavy. However, there was no training or warning that lifts over a certain weight should not be performed in any circumstance. There was no training or warning that the employees should not attempt to drag a heavy weight. There was no training as to how to lift or how to drag a heavy item. Further, to the extent that the appellant was instructed not to lift heavy items, there was no reinforcement of that direction by, for example, follow up training. 8 In my opinion, it was foreseeable that an employee, in the course of attending to exigencies arising whilst performing the work of a garbage collector, would misjudge the weight of a bin or other item that needed to be moved. A proper system of work, in circumstances such as this, where it was not feasible to have lifting or other equipment available to the driver to move a heavy load, required that there be regular reinforcement of a number of basic safety aspects of the employment. Those safety aspects would include directions not to lift, shift or drag heavy items, as well as training in lifting techniques and insistence upon calling for help if a load was suspected to be heavy. 9 The decision to drag the bin may, in hindsight, have been foolhardy on the part of the appellant and for that reason it is easy to lay the blame for the injury at the appellant's feet. However, it is necessary to gauge his conduct in the light of the principles that govern the employer's duty. That duty, as explained above, was to take reasonable steps "to avoid exposing [the employer] to unnecessary risk of injury". The risk of injury in this case came about because the respondent's system of work involved the garbage collectors working singly with the risk that they would be confronted by the need to move a heavy lift. Although the system also involved the garbage collectors contacting each other if assistance was required, the manner in which they carried out their work was very much left to their discretion. 10 In this context, the appellant's decision to move the bin in an alternative way, by dragging it was both foreseeable, and indeed a likely mode of performing the task. As the appellant explained, bins are "a lot easier to drag", because when they have toppled over, the lip at the top end is wide and that facilitates the dragging. However, this method of attending to the task at hand was deceptively dangerous for two reasons, which when combined amounted to an unsafe system of work. First, being on the ground, there was no means of gauging how heavy the bin was, without having first attempted to move it. Secondly, the very task of seeking to move it involved bending over and thus placing an undue strain on the appellant's spine. 11 In such circumstances, it does not matter, in my opinion, that an employee may have an overall understanding that lifting a heavy item is unsafe. A conscientious employee will be focussed on attending to the particular work task at hand. In this case, the particular work task that the appellant was required to attend to was to move spillage from the driveway. Notwithstanding that the appellant appreciated that this bin was too heavy to lift because it did not "budge" when he tried to grab the handle, he decided upon an alternative method of achieving the task, that is, dragging the bin on its side. However, the appellant would not have been able to determine the weight of this item without having made some attempts to have moved it. By then it was too late. 12 Basic training in lifting requires a person to lift by bending the knees, not by bending over from the spine. Accordingly, the appellant, not only had no means of judging whether it was safe to move the bin other than by engaging in the very task of doing so, but his physical safety was compromised by bending from the spine. There had been no workplace training in this, nor had there been any reinforcement of any safety measures relating to moving heavy objects. The primary direction under which the appellant was working was to clear the spillage from the driveway. 13 Although the appellant's actions involved a serious misjudgement, it was a misjudgement that was inherent in the system of work that the respondent had provided. The respondent was under an obligation in those circumstances to take reasonable care to implement a system of work that avoided exposing the appellant to this unnecessary risk. The test at all times is one of reasonableness. In this case, as I have said, reasonable care required, at the least, directed training and reinforcement in relation to lifting and moving heavy loads. 14 In those circumstances, I am of the opinion that the respondent failed to provided a safe system of work and it was that failure that caused the appellant's injury. The appeal should be allowed with costs. 15 GYLES AJA: This is an appeal by a former employee against the dismissal of his claim for damages for personal injury in the District Court of NSW against the respondent, JJ Richards & Sons Pty Limited, his employer. The respondent was a waste management company which had a contract with Baulkham Hills Shire Council to collect residential garbage from home owners in that Shire. The appellant was a driver of garbage trucks from shortly after the commencement of his employment in 2000 with the respondent. He was injured whilst on a garbage collection run on the morning of 2 July 2003. There were originally three defendants. The claim against the second defendant had been resolved before delivery of the primary judgment. This appeal only relates to the employer. The claim against the third defendant was dismissed, and there is no appeal from that decision. 16 A summary of the circumstances of the injury (taken from the primary judgment) is as follows: "The plaintiffs truck had a retracting arm with a set of metal pincers at the end. The plaintiff operated a joystick in the cabin and used a screen to cause the arm to extend out and the pincers to grab the bin, lift it up and drop the contents into the truck. The plaintiff drove up to the 240 litre household garbage bin outside number 90, lined it up and pulled the arm out. He used the controls to grab the bin and pull it in. He started to throw it up. When it was about a metre off the ground the bin fell and flipped out away from the truck. The truck had tilted which meant that the bin was heavy. The plaintiff stopped the truck. His lights illuminated the driveway edge. He could see through the camera that the bin had fallen over towards the driveway. He got out and walked around. The top of the bin was on the driveway and the bottom half was on the grass. He saw dirt on the driveway and decided to remove the dirt and move the bin. He was concerned that if he left the bin on the driveway a car could reverse into it. The plaintiff shovelled the dirt into a pile on the grass. Then he looked at the bin and kicked it. It felt solid all the way down so he knew that it was full. It was still dark but the he could just see into the top quarter of the bin. He saw that there was dirt, turf with the dirt still on it and chunks of clay inside the bin. The contents of the bin were disputed by the third defendant who said that he had put in turf with some soil attached and probably his usual household refuse. The plaintiff knelt down and grabbed the handle and felt the weight. He decided not to lift it because it was extremely heavy. The plaintiff grabbed the bin by the handle, lifted the side of the bin and dragged it from the driveway for a bit under a metre to take the bin off the driveway. One wheel stayed in one place and he dragged it through an arc slightly uphill. When the plaintiff had the bin virtually off the driveway, his lower back went clunk. He left it lying on the ground because he could not pick it up. He put a sticker on the bin and got back in the truck. As he drove around the corner he could feel a burning pain. He called his supervisor and told him that he had hurt his back. The plaintiff sustained a severe injury to his lower back and later underwent a lumbar laminectomy." 17 One basis for the case put to the District Court was that the employer should have known of the possibility of heavy or excessively heavy bins being dropped to the ground and that it should have directed its employees including the plaintiff not to touch a fallen bin if it appeared heavy. The employer should not have left the plaintiff to make a judgment call about whether it was safe to drag the bins. It was foreseeable that a conscientious worker who was anxious to do his job properly and efficiently might make a bad decision in order to get on with the job. That is the basis pressed on this appeal. 18 Evidence given by the appellant relevant to foreseeability included the following: "Q. During the time that you collected garbage using this kind of truck, did you ever notice anything about the security with which the bins were grabbed by the pincers? A. A lot more in wet weather. They'd be slippery, like, they'd let go of bins a bit easier. Q. In what way? How did they, when you say 'let go'? A. Just slipping, like - yeah. Just slipping on the belt. Q. What did you see happen when they let go of the bin? A. They virtually - as you were coming up, centripetal force would throw it out - throw the bin out of the pincer Q. In which direction? A. Out - straight out. Q. How often did that happen? A. Sometimes two to three times a day. Q. Mainly in wet weather, you said. A. More in wet weather, yes, and depending on the - if it's a heavy bin, you'll feel the truck - like, it jolts when you pick the bin up initially off the ground. The truck actually - like, you can feel it lean over and you know you've got a heavy bin. Then you sort of - yeah, you just - as long as it's right in, throw it up, and then you start moving the truck and you normally put the bin on the other side of the driveway. As long as you know that it's already in motion and it's just about to tip in, you can start moving forward as it's compacting. You stop the truck on the other side of the driveway and put it back down." 19 There was no evidence that the machine or the bin were wet on the morning in question. 20 Later the appellant said: "Q. And nothing like this had ever happened before, what happened - - A. Yes. Q. - - this day, had it? A. Yes. Q. It had? A. Yes. Q. What had happened before? A. Each driver has always had a - some problem with a bin, being engine blocks, big logs that fill the whole bin they just can't go through the back of it. Q. And on many of the occasions you were talking about hearing other drivers complaining over the radio, I take it. A. Yes. Q. They would, if they wanted to - - A. Call someone. Q. - - get in touch with the base, wouldn't they? A. Or call. Q. And say, "This is the problem here, what am I to do?" A. Yes, or call another driver to come and help. Q. And whenever another driver was called, help was readily at hand, wasn't it? A. Yes. Q. You of course knew all of that - - A. Yes. Q. - - in July 2003. A. Certainly." 21 The evidence given by the appellant as to relevant instructions that he had received included: "Q. Just before we get to what happened then, had you ever been instructed in lifting techniques and what to do, and when not to do lifting, and so forth, by those who had authority over you? A. Yes. Q. When was that? A. When I started. Q. And were you ever given any manual about that, or that contained any directions or anything of that sort? A. Directions were like if something is too heavy get someone to help you, or use, like, use your own discretion, really, because we have a lot of spillages and we clean them up. Q. Getting someone else to help you, what would that have involved? A. Calling out on the two-way and pulling them out of their run to come and help me, which we can do, it's not a problem. It was just so that I used my judgement, I thought, well, I'll just pull it to the side and sticker it and leave it, so." 22 He had earlier said that his supervisor had given him instructions to clean up spillage of the bin and not leave a mess. He later said: "Q. Do you remember being told that you were not to leave any spilled garbage on driveways? A. Yeah, we tried to avoid it at all costs. Q. For that purpose, you were given a shovel. A. Yes. Q. And a broom. A. Yes. Q. And some gloves. A. Yes. Q. You were given a whole lot of stickers - - A. Yes. Q. - - to affix to bins that were unacceptable for some reason. A. Yes." 23 Stickering the bin refers to placing a sticker on the bin to indicate that it was unsuitable for collection. Keeping the driveway area clean was an important directive. 24 The appellant gave the following evidence as to instructions: "Q. You've told her Honour yesterday that you knew of the company's policy in relation to not lifting heavy objects. A. Yes, at your discrepancy. Q. You were told, weren't you, that under no circumstances were you to lift anything heavy? A. No. Q. You were told - - Q. Sorry, I don't understand the negative in the question. Do you mean you weren't told or you were told not to? A. I was - excessive. Yeah, nothing excessive." 25 The appellant also gave the following evidence: "Q. Do you remember reading that as a guideline you should not lift weights over 16 kilograms unaided? A. No, I only seen that document I think yesterday. Q. But you knew, didn't you, that - - A. Well, you know what you can and can't lift. Q. And you knew that you shouldn't attempt to lift anything if there was any danger at all of you being injured in so doing. A. That's correct. Q. You knew that, didn't you? A. That's correct. Q. And if you assessed that there was any danger at all it was open to you to leave the item where it was and mark it unacceptable. A. At your own discretion, yes. Q. Or to call for - - A. Help. Q. - - assistance from one or more fellow drivers so that you could get help to move it. A. If I use my discrepancy that way, yes." 26 The appellant gave the following evidence: "Q. As a driver, if anything out of the ordinary happened while you were on your round, you were required to report it immediately, weren't you? A. If it's going to stop the vehicle from doing the run, yes. Q. But whether it would stop the vehicle or not, if something appeared to your observation to look as if it could require some maintenance, you'd report it. A. Yes. You'd put it on your worksheet, yeah." 27 He said later: "Q. You were given specific instructions about how to use the two-way radio in the truck? A. Yeah. Q. But, as I understand it, that didn't stop a good deal of chatter between mates as they were driving along. You'd talk to one another. A. Yes. Q. There would be, when you were doing the Glanmire district, about eight, am I correct in saying, other JJ's trucks also collecting garbage in the near vicinity? A. I can't remember exactly how many there were. I don't know if there was eight of us all up. I think it might have been eight garbage trucks. Q. Might it have been more? A. No, I don't think so. Q. So somewhere in the near vicinity there could have been seven other trucks? A. Mm-hmm. Q. You knew well, on a personal basis, the drivers of all of those trucks? A. Pretty much, yes. Q. You could get them on the two-way any time you wanted? A. Yes. Q. You could get them on the two-way for advice, if you wanted their advice. A. I suppose I could, yes. Q. You could say if anything happened at all that was slightly out of the ordinary, you could use the two-way to talk to the leading hand back at the base? A. Yes. Q. And people frequently did, didn't they? A. Yes. Q. And people also would ask one another for advice on what they should do in a given set of circumstances? A. Not always. Q. Sorry? A. Not always. Q. Not always, but it would quite frequently happen that - - A. If you - if you - - Q. - - information would be exchanged, "What should I do here," or "What should I do there?" A. Probably when you're first starting. Q. Overhearing all of this was the leading hand back at the base. A. Not always, but sometimes. Q. If he wanted to make any suggestion, he could speak up and often did? A. If there was something - if he wanted to tell everybody something, he'd get on the two-way, yes." 28 He also said: "Q. I think I've asked you this, sir, but you frequently heard other drivers calling for assistance as they were doing their rounds, didn't you? A. Only if it was something major. Q. And from time to time you would, if called, respond to that request? A. Yeah, I was always helpful." 29 Toward the end of his cross-examination the appellant gave the following evidence: "Q. In your evidence this morning, you told her Honour that after the bin slipped, or came out of the grab, you got out of the truck and one of the things you did was to make an assessment of what the bin - with some of the contents spilled out - weighed? A. After I'd - yeah, after I'd taken it off the driveway and looked inside, what was left in the bin, and then I kicked the bin and it was rock solid right down to the bottom, so it was my assumption that it was at least 200 kilos. Q. Before you moved the bin, you gave it, as it were, a test handling, didn't you? A. If you want to call it that. Q. It was at that time that you came to the conclusion that it was extremely heavy? A. No. It was after I kicked it that I realised that - like I said before, I tried to grab the handle and feel the weight like this, but there was no like, it didn't even move, budge a bit, so I didn't even attempt it. Q. I might be misunderstanding you, sir. You came to the conclusion that it was extremely heavy before you moved it, didn't you? That's why - - A. Yeah. I figured it was very heavy. That's why I just thought I'd just feel it, and see if it was too heavy. Q. So you tested it; you found it was too heavy, or you assessed it to be extremely heavy? A. Rephrase that? Q. You'd had a test handling, and came to the conclusion - - A. Yeah, but I didn't try and lift it, though. I just sort of felt it with my arms, like, it didn't budge so I didn't even attempt it. Q. You came to the conclusion that it was extremely heavy? A. Yes. Q. Was that when you came to the conclusion that it weighed 200 kilos? A. No, after I'd kicked it. Q. Did you kick it before you moved it? A. Yes. Q. You knew then, didn't you, that you should have got back in the truck and got on the radio, and asked for assistance? A. No, no. I used my judgment. I knew about the safety issues. I mean, we'd done it a thousand times. But my judgement was it was obviously too heavy to lift, and they're a lot easier to drag if they're laying on the ground, because it's got a wide lip. Q. So you'd done this before - so there are only two parts. It was lying on its side? A. Yes. Q. There are two parts of it on the ground; the wheel at one corner - - A. Yep. Q. - - and the lip of the bin at the other end? A. Yes. Q. You had - - A. Plus a bit - all right, no, keep going. Q. You formed the conclusion that you would be able to drag it out of the way? A. Yes. I assessed the risk and didn't see a problem with dragging it out of the way. Q. Notwithstanding the fact that you had come to the conclusion that it weighed something in the vicinity of 200 kilograms? A. Well, I sort of guessed that afterwards, but yeah. Q. You knew it was extremely heavy, and you knew that you should have got assistance, didn't you? A. No. Q. You knew, whether or not you should have got assistance, that there was assistance readily at hand? A. I knew there was assistance ready, yeah." 30 The respondent did not call the supervisor or any other employee of it to give evidence. There was no serious challenge to the credit of the appellant. 31 There was no evidence called as to other injuries caused in a like manner with this employer, or anybody else in this Shire or, indeed, elsewhere.

Decision of primary judge 32 The primary judge rejected the principal submission put on behalf of the appellant in the following manner: "This submission is based on a number of factual matters which have not been proven. Most importantly the plaintiff has not shown that it was the weight of bins that caused them to fall either on this occasion or other earlier occasions. Moisture appears to be a factor. The plaintiff's expert said that he could not express an opinion about the issue without being given the detailed documentation of the design. In addition the plaintiff did not say that he decided to drag the bin because he was in a hurry or because he did not want to inconvenience another driver. The effect of his evidence was that he knew he could not lift the bin but thought he could drag it. It is accordingly not possible to conclude from the evidence how often heavy bins were dropped by the garbage trucks. I accept it must have occurred from time to time. The issue is accordingly whether the plaintiff should have been given the unequivocal directive suggested by counsel for the plaintiff or whether the directives which were given by the first defendant and the accompanying procedures (i.e. being told not lift anything too heavy and providing a method by which to summon other drivers or report to head office) was sufficient. The submission made by counsel for the plaintiff is based on the premise that an employee should not play any role in deciding whether to try and move a heavy bin. However I am not persuaded that in practice this is a realistic proposition. It was not suggested that all bins should be left where they fall, but that a bin which appears heavy should not be moved. This means that at some stage a worker has to make an assessment of the weight of a bin. Accordingly a person on the position of the plaintiff will always have to make a decision. The issue from this point is whether the procedures put in place, which the plaintiff did not follow, were reasonable taking into account the high duty of care placed on employers. I am satisfied that they were."

Ground 1 of the grounds of appeal - the trial judge erred in finding that the appellant had not shown that it was the weight of bins that caused the fall from the pincers of the garbage truck. 33 Counsel for the appellant has criticised the first portion of the reasoning dealing with the question as to whether the weight of the bin caused the fall. There is substance to the criticism. There was no evidence of moisture being present on this occasion. Next, the passage of evidence from the appellant which is the basis for the finding does not amount to denying that weight alone would cause failures to lift on occasions, although problems caused by moisture were most common. However, the trial judge did accept that heavy bins were dropped from the garbage trucks from time to time. Furthermore, the trial judge did not find that there was no duty upon the employer to cater for that foreseeable situation. Thus the error, if there be one, has no probative effect.

Ground 2 - the trial judge erred in rejecting the submission that the dropping of heavy bins was a problem which the respondent had failed to address adequately. 34 The appellant's counsel placed a good deal of weight in his arguments upon what he said was a contradiction or tension between the instruction to clean up spillage as a top priority and the instruction as to dealing with heavy bins. However those directions relate to two different situations. The appellant was provided with a shovel and other equipment to clean up the spillage and did so without incident. Movement of the bin was another thing altogether. He did not indicate that he suffered from any confusion between directions on the morning in question. 35 I am persuaded the trial judge was not in error in finding that a blanket ban on moving or attempting to move a heavy bin was not a reasonable response to the risks involved. I agree with the trial judge that in practice it was not a realistic proposition. The topography, the material on which the fallen bin was resting, the disposition of the fallen bin in relation to the topography, the relationship between the position of the bin and access ways to and from houses, the weather conditions and, no doubt, other factors would vary greatly from incident to incident. There could well be circumstances, for example, where the nature of the topography, the material the bin was on and the place and disposition of the heavy bin would be such that a serious impediment to access to the premises, not easily seen in the dark, could be removed by a relatively simple push. It is perfectly reasonable in that situation for a judgment call to be made as to whether to attempt to move the bin, to wait on the spot for help or to sticker the bin and keep going with the run, returning with assistance later, provided always that the person making the judgment call is conscious of, and takes account of, the safety aspects of the matter including the risk of back injury. There is no reason to find that a person in the position of this appellant was not as well placed as other employees, including the foreman, to make that judgment. He was an experienced operator who had worked for three years in the same area handling thousands upon thousands of bins in all conditions. 36 The appellant was aware of the safety issues involved in attempting to move a heavy bin and was aware of all the other alternative courses of action open to him. In my opinion the trial judge was entitled to take the view that it was unrealistic and unreasonable to make a blanket ruling regardless of the circumstances so as to remove all elements of what the plaintiff called his discretion in carrying out his duties. 37 In my opinion no error has been shown in the reasoning of the trial judge. The finding was well open to her on the evidence. 38 Counsel for the appellant relied upon the decision in Herning v GWS Machinery Pty Ltd [2005] NSWCA 263. Apart from the fact that the case involved moving a heavy piece of machinery the facts there are quite different from the present facts. The Court did not purport to lay down any general principle which would be applicable in the present circumstances. The same might also be said of the decision in Harrison v Lau Nay Nominees Pty Ltd t/as Abs Transport [2004] NSWCA 18, referred to by counsel for the respondent. Counsel for the appellant also referred to the decision of the High Court in Turner v The State of South Australia (1982) 42 ALR 669; 56 ALJR 839. The case is not reported in the Commonwealth Law Reports, a good indication that it does not lay down any principle. Again it involved heavy lifting. The warning case had failed in the Full Court of South Australia. The High Court's decision was based upon other failures in the system together with vicarious liability for the negligent acts of another employee involved in the system. 39 Passing reference was made by counsel for the appellant to the decision of the High Court in McLean v Tedman (1984) 155 CLR 306. Apart from the fact that it concerned an injury during garbage collection there is no parallel with the facts of this case. It was an unusual case. It dealt with a system of work which the employees had devised to suit themselves, being left by the employer to organise the work as it suited them. The system was obviously deficient and dangerous as it involved the manual collection of bins with the truck going up the street on one side only with the collectors collecting bins from both sides, thus running across the road, often in the dark. The plaintiff collector had been injured whilst on the roadway. If the truck had gone up one side of the street and down the other that risk would have been eliminated. This was not adopted by the men as it would have increased the time of the run, the practice apparently being to finish the run as soon as possible and then do a second job. 40 The majority of the Queensland Full Court set aside a judgment against the employer on the grounds that the plaintiff had failed to demonstrate that there was a reasonable or practical safe system of work which would have avoided the injuries he had sustained, the basis being that there was no evidence called to establish that the men would have complied with any such system of work. The High Court held that once evidence was given of a reasonably practical system available to be instituted by the employer it was not up to the appellant to establish that it would have been adhered to by the employees. In my opinion that decision has no relevance in the present circumstances. Here there is no complaint about the system of work, leaving aside the question of a direction of the kind contended for. It was not suggested that the appellant would not have carried out such a direction. The appellant failed to establish that there was a reasonably practical alternative system. 41 The other precautions advanced, and rejected, at trial were wisely not pressed on the appeal. 42 I would dismiss the appeal with costs. 43 HISLOP J: I agree with Gyles AJA. ******

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