Solicitors:
Leigh Virtue & Associates (Appellant)
Bale Boshev Lawyers (Respondent)
File Number(s): 2018/368925
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Civil
Date of Decision: 12 October 2018
Before: Olsson DCJ
File Number(s): 2017/119679
[2]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the decision]
On 12 October 2018 a judge of the District Court of NSW (the primary judge) entered judgment in favour of Mr Gregory Cottom (the Worker) against the Scone Race Club Limited (the Club). The Worker was employed by the Club as a waste management labourer and sued the Club after sustaining an injury to his right knee while removing a bin liner loaded with rubbish from a garbage bin. The injury occurred on 23 May 2008, being the Scone Club Race Day.
The Club appealed from the orders made by the primary judge. The Worker cross-appealed from the refusal of the primary judge to order interest on certain of the damages included in the amount of the judgment.
The Worker also sought to rely on a notice of contention, arguing that the Club was negligent in failing to supervise the Worker to ensure that he adopted the Club's alleged system of waste removal.
Allowing the appeal and dismissing the cross-appeal Emmett AJA (Gleeson and Brereton JJA agreeing) held:
It was not in issue that the Club owed a duty of care to the Worker, the issue was the content of that duty in the particular circumstances: Emmett AJA at [47].
Despite the controversy at trial about what, if any, instructions the Club gave the Worker as to how the bins should be emptied, nothing ultimately turns on it: Brereton JA at [3]; Emmett AJA at [78]. Nor does anything turn on the judge's conclusion that the Club failed to conduct an appropriate risk assessment, in the absence of explanation of how that assessment would have averted the injury: Brereton JA at [3]; Emmett AJA at [76].
The critical issue is whether reasonable care on the part of the Club required that it install concrete pads upon which to locate the bins: Brereton JA at [3]; Emmett AJA at [68]. The primary judge erred in concluding that this was the content of the duty owed, given that:
The sloping grassy area where the accident occurred was not so steep as to present a hazard: Brereton JA at [3]; Emmett AJA at [80].
There had been no prior or subsequent report of workers slipping on the grass when removing garbage: Brereton JA at [3]; Emmett AJA at [72].
It was not industry practice at other country racecourses to install concrete pads: Brereton JA at [3]; Emmett AJA at [74].
Concrete pads would introduce their own risks, including trip and slip hazards, and would be a harder surface than grass on which to fall: Brereton JA at [3]; Emmett AJA at [56].
There was infrequent heavy use of the racecourse: Brereton JA at [3]; Emmett AJA at [43].
Installation would incur some cost: Brereton JA at [3]; Emmett AJA at [44].
Notice of Contention
The Court refused leave to raise, by notice of contention, an argument that the Club was negligent in failing to supervise the Worker to ensure that he adopted the Club's alleged system, in circumstances where that case was not advanced on the pleadings, and could have been met by evidence at trial: Gleeson JA at [1]; Brereton JA at [4]; Emmett AJA at [84]-[86].
Orders
The Court concluded that the appeal should be allowed and the cross-appeal dismissed. The orders of the primary judge were to be set aside, and in lieu of those orders the Court directed that judgment be entered for the defendant and that the plaintiff pay the defendant's costs. The respondent was ordered to pay the appellant's costs of the appeal, and was to have a certificate under the Suitors' Fund Act 1951 (NSW) if he is otherwise entitled to a certificate: Gleeson JA at [1]; Brereton JA at [5]; Emmett AJA at [89].
[3]
Judgment
GLEESON JA: I agree with Emmett AJA.
BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Emmett AJA, in which the background, issues and arguments are fully stated, and with which I agree.
In my judgment, despite the controversy at the trial about what if any instructions the Club gave the worker and in particular whether he was to change the liner leaving the bin in situ and drag the full bag to the skip (as he did), or wheel the full bin to the skip and empty it there, nothing ultimately turns on it. Nor does anything turn on the judge's conclusion that the Club failed to conduct an appropriate risk assessment, in the absence of explanation of how that assessment would have averted the injury. The critical issue is whether, as the primary judge held, reasonable care on the part of the Club required that it install concrete pads upon which to locate the bins. I agree with Emmett AJA that her Honour erred in so holding, given that:
1. although the evidence does not permit a precise finding as to the gradient of the sloping grassy area where the accident occurred, it was not steep, nor such as itself to present a hazard;
2. there had been no previous report of any problem with workers slipping on the grass when removing garbage, nor any since;
3. it was not industry practice, at other country racecourses, to install concrete pads;
4. concrete pads would introduce their own risks, including trip hazard from the change in surface levels, and would be a harder surface than grass on which to fall;
5. concrete pads would be of dubious efficacy in reducing the risk of slipping on spilt refuse;
6. there was infrequent heavy use of the racecourse, such that there were perhaps two occasions each year in which it might have been necessary to place bins in the relevant areas; and
7. installation would incur some, even if modest, cost.
I also agree with Emmett AJA that leave to raise, by notice of contention, an argument that the Club was negligent in failing to supervise the worker to ensure that he adopted the Club's alleged system should be refused, in circumstances where that case was not advanced on the pleadings, and an application to raise it at the end of the trial was unsuccessful, when it had not been put to the Club's officers who gave evidence, and (if raised earlier) could have been met by evidence.
I agree with the orders proposed by Emmett AJA.
EMMETT AJA:
[4]
Introduction
The question in this appeal is whether the appellant, Scone Race Club Limited (the Club), breached a duty of care owed to the respondent, Mr Gregory Cottom (the Worker). On 23 May 2008, the Worker was employed by the Club as a waste management labourer and supervisor. During a race meeting conducted by the Club on that day, being the Scone Cup Race Day (the Scone Cup), the Worker sustained an injury to his right knee while removing a bin liner from a garbage bin. The bin liner was loaded with rubbish.
The Worker sued the Club in the District Court and, on 2 November 2018, for reasons published on 12 October 2018, a judge of the District Court (the primary judge) directed the entry of judgment in favour of the Worker against the Club in the sum of $339,515.02. The Club was ordered to pay the Worker's costs. By notice of appeal filed on 30 November 2018, the Club appeals from the orders made by the primary judge. By notice of cross-appeal filed on 30 January 2019, the Worker appeals from the refusal of the primary judge to order interest on certain of the damages included in the amount of the judgment.
The principal question in the appeal is whether the Club was in breach of the duty of care that it clearly owed to the Worker as an employee of the Club. Further questions arise if the Club fails in its principal contention that it was not in breach of any duty owed to the Worker. The further questions are as to whether the Worker contributed to his injury himself and whether the primary judge made an adequate allowance for the vicissitudes of life in assessing the damages to which the Worker is entitled for future economic loss.
In his statement of claim filed on 18 April 2017, the Worker alleged that, on the day in question, he was instructed to empty an overflowing bin liner that was sitting inside a 240 litre garbage bin and that, when he attempted to lift the bin liner, he slipped, causing him to suffer severe injury. He alleged that the injury was caused by negligence or breach of statutory duty on the part of the Club, in that:
the Club maintained a system of work (the System of Work) that was unsafe and likely to cause injury, as it required the Worker to lift a heavy, large and overflowing garbage bag (the Load) from a garbage bin that was sitting on a sloping grassy area that was contaminated with water and refuse, thereby exposing the Worker to the risk of injury when he slipped while carrying the Load (the Risk);
the Club failed to take reasonable care to assess, monitor, identify, reduce and eliminate the Risk;
the Club failed to take reasonable care to heed the Worker's complaints about the System of Work, thereby adopting and condoning the presence of the Risk;
the Club exposed the Worker to a risk of injury that could have been avoided by reasonable care;
the Club failed to take reasonable steps to provide a safe area on which to stand the bins, such as concrete pads, which were likely to have reduced or eliminated the Risk;
the Club failed to take reasonable steps to provide a safe area for the Worker to stand while he carried out the System of Work, which would likely have reduced or eliminated the Risk;
the Club failed to take reasonable care to provide the Worker with some mechanical lifting device, which was likely to have reduced or eliminated the Risk;
the Club failed to take reasonable care to provide a sufficient amount of staff to assist the Worker in completing the task, which was likely to have reduced or eliminated the Risk;
the Club failed to take reasonable care to ensure that the Worker was not lifting excessive weight when using the System of Work, either by providing additional bins or directing the Worker and additional staff to empty the bins more frequently, which was likely to have prevented or reduced the Risk; and
the Club failed to take reasonable steps to identify, control and eliminate the Risk, in breach of the Occupational Health & Safety Act 2000 (NSW) (the Safety Act) and the Regulations made under the Safety Act (the Regulations).
The statement of claim then alleges that, by reason of the negligence and breach of statutory duty on the part of the Club, the Worker suffered injury. There is no issue as to the quantification of the Worker's damages except as to:
contributory negligence;
allowance for vicissitudes of life; and
interest.
Accordingly, it is unnecessary to address the details of the Worker's injuries.
In its defence filed on 5 May 2017, the Club asserts that the Worker's injuries, disabilities and damage were caused or contributed to by his own negligence in:
failing to take reasonable care for his own safety;
failing to request assistance in the performance of the relevant task;
failing to direct other employees, of whom there were 14, to move the bins;
failing to perform his duties as instructed;
failing to remove the bin liners before they were more than half-full, as instructed; and
removing the bin liners from the bins rather than wheeling the bin containing the liner to a garbage skip at the waste disposal site.
The proceedings were commenced beyond the three year time limit provided for in s 151D of the Workers Compensation Act 1987 (NSW) (the Workers Compensation Act). In the course of the hearing, the primary judge was satisfied that the Worker adequately explained his delay in bringing the proceedings and granted leave, nunc pro tunc, to commence the proceedings out of time.
[5]
The Evidence
The primary judge characterised the Worker's employment history as being impressive and indicative of a stoic, hardworking man. The Worker left school in year 8. As a consequence, his literacy and numeracy are, as her Honour held, "somewhat compromised". He has relied on his physical strength for all the work that he has performed. From 2005 to 2008, the Worker was employed on a casual basis by the Club. He was engaged in pasture management, track and rail maintenance, slashing, cleaning, garbage management and rubbish removal. On the day in question, the Worker carried out his duties with other employees of the Club, monitoring and removing waste removal as required. He supervised some other employees.
The Worker had worked at several Scone Cup race days, which were busy days. In general, the Worker reported to Mr Rito Cadalbert, the track manager and, on race days, he normally obtained instructions as to the work for the day from Mr Cadalbert, who, in turn, received instructions from Ms Helen Sinclair, the chief executive officer of the Club.
The Club's course has a compound for members and guests and, on the day in question, a marquee was erected in part of the enclosure for some spectators. The racecourse has a large grassed area for members of the public, which slopes down towards the race track. Members of the public were allowed to bring picnics and food and drink were on sale at the course. No glass bottles were permitted except for the guests in the marquee.
On the day in question, large black two-wheeled garbage bins of 240 litre capacity, commonly referred to as "wheelie bins", were situated around the public enclosure. Some were located on a paved area immediately in front of the race track. Others were located on the large grassed area referred to above. The bins were not fixed in position and were lined with large bin liners. Further away from the race track, beside the marquee, was a large garbage skip, into which bin liners loaded with rubbish were regularly placed, after they had been removed from the bins.
The Worker said that the bins were placed in rows of three or four and were placed with their lids open. The Worker emphatically denied that bins were positioned back-to-back. Ultimately, the primary judge proceeded on the basis that pairs of bins were in fact placed back-to-back, with the handles touching each other. [1]
Approximately six bins were located on the slope of the grassy area. There were no designated tracks or paths by which the bins could be wheeled from their positions to the garbage skip and back. However, there was a relatively clear passage over the grass.
The bin at which the Worker suffered his injury was located about 20 metres from the garbage skip. Access to the garbage skip from that bin was available by way of a narrow but clear walkway between the marquee, on one side, and the assembled crowd of patrons, on the other.
The primary judge found that there were two realistic methods for removing the contents of the bins. The first was to wheel a bin with a full bin liner to the garbage skip, remove the loaded bin liner and place it into the skip. [2] The second was to take the full liner from the bin, put a new bin liner into the bin, carry or drag the full liner to the garbage skip and place it into the skip. The Worker adopted the second method. A question in the proceedings was whether either of those methods was the System of Work specified by the Club.
The Worker said that, at earlier race meetings, he had adopted the method of removing a loaded bin liner from its bin, placing the loaded bin liner beside the bin, putting a new bin liner in the bin and then dragging the loaded bin liner backwards through the crowd to the garbage skip. Lifting a loaded bin liner out of the bin required the Worker to raise his arms above his head. The Worker said he had never been instructed to take the bin itself to the garbage skip. He asserted that it was too hard to wheel a bin through the crowd and that it was not safe to do so.
The Club published a document, described as "Scone Race Club Work, Health and Safety" (the Safety Brochure), which included a section headed "Cleaning and Litter Removal". That section relevantly provided as follows:
"Workers carrying out the general cleaning and tidying of the facilities and surrounding areas must ensure that they follow safe procedures;
Always use gloves …;
Always bend from the knees …;
Wash your hands and forearms …;
Ensure that bin liners are changed regularly, whenever it is identified that a bin is possibly filled, it must be changed immediately."
The Scone Cup race day is the biggest event on the Club's calendar and, on the day in question, there were large numbers in attendance at the Club's course. The Worker was not given specific instructions as to the method of emptying the bins, contrary to the allegation made in his statement of claim. The primary judge concluded that it must be taken that he had standing instructions to empty the bins. Her Honour characterised the standing instruction or method he had employed as being "a central issue in the case".
On the day in question, the grassed area was crowded with spectators and the bins filled rapidly with the usual sort of picnic debris, consisting of partly eaten foodstuffs, plastic plates and cups and cutlery, beer cans, plastic bottles and the like. The Worker saw that one of the bins was "overfull" and went straight to it. He said that he "wrapped it around" in order to get a good heaped bin liner and then started to pull the liner up. He was standing on the slope with his right leg on the downhill slope, with the bin positioned in front of him. As he pulled the bin liner up, he realised that it had a bit more weight in it so he "give it a bit more oomph". He said that the ground around the bin was wet or soggy from squashed fruit and his leg slipped and he had "come back down on the bin".
The worker said that he felt major pain and his knee made a noise. He left the loaded bin liner where it was and hobbled about 15 or 20 metres to a wooden fence, where he sat until the pain subsided. He then reported the incident to Ms Sinclair. He told her that he was all right and could deal with it. He said that he was instructed to go to a particular spot "at the top" and supervise, and that that is what he did.
In cross-examination, the Worker rejected the proposition that the usual System of Work was to take the bins to the garbage skip. He also denied that he was instructed to empty the bins before they were full. He confirmed in cross-examination that his method was to drag loaded bin liners to the garbage skip. He said that it was easier to drag the liners so that surrounding people were not hurt by the plastic bins, which "drop… all over the place" when transported on the uneven ground. [3] He said that he simply put the bin liners on the ground and walked backwards dragging the bin liner, as a result of which "no one gets injured". The Worker said that that was the method that he had always used and not only had he not been told to take the bins to the garbage skip, he said it was not feasible to drag bins through the crowd. When asked whether he could have wheeled a bin to the garbage skip and emptied it, he said that he would not ever have thought of that.
Ms Sinclair said that, on the day in question, there were about 120 bins on the course and that the bins were generally set up with the lids open, back-to-back, for ease of access and removal. She said that the system in place was that the bins were wheeled to the garbage skip, up to 30 metres away, and the contents were transferred to the skip and a clean bin liner inserted into the bin, which was taken back empty to its original location.
[6]
Conclusions of the Primary Judge
The primary judge found that the Club owed a duty of care to the Worker. That, of course, was not in issue. The issue was the content of that duty in the particular circumstances.
In her reasons, the primary judge made reference to the provisions of the Civil Liability Act 2002 (NSW) (Civil Liability Act) and it is tolerably clear that her Honour considered that provisions of the Civil Liability Act were relevant and that her Honour applied them. However, s 3B(1)(f) of the Civil Liability Act relevantly provides that it is not applicable to claims brought under the Workers Compensation Act. Counsel for the Worker accepted that the references to the provisions of the Civil Liability Act that he made in opening were inappropriate and subsequently disavowed reliance on the Civil Liability Act. Nevertheless, it is curious that her Honour referred to the provisions. In the result, nothing appears to turn on her Honour's misapprehension.
The primary judge concluded that there was a clear likelihood of harm to an employee in the position of the Worker if the following precautions were not taken:
1. conducting a proper risk assessment of the place and System of Work;
2. providing proper and adequate platforms and work systems to manage the Risk; and
3. identifying and providing an alternative method to allow a person such as the Worker to carry out the task safely.
Her Honour considered that the likely severity of injury was high, given the manner in which the Worker slipped, causing a twisting injury to his knee. On the other hand, her Honour characterised the burden of those precautions as being "slight".
In dealing with the Club's liability under the general law, the primary judge began by observing that the element that generates a special responsibility or duty to see that care is taken is found in the relationship of employment and that that relationship gives rise to a "special duty". Thus, her Honour said, an employer has the exclusive responsibility for the safety of the appliances, the premises and the System of Work to which the employer subjects an employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to such matters. The consequence, her Honour said, is that the employee's safety is in the hands of the employer and the employee can reasonably expect that reasonable care and skill will be taken. [6] Her Honour then observed that it was clear that the special relationship of employer and employee existed between the Worker and the Club and that the Club had an obligation to provide safe premises and a safe System of Work.
It is not entirely clear what the primary judge had in mind in making those observations. The special relationship between employer and employee, of course, has the consequence that the duty of care owed by an employer to an employee is non-delegable. That duty is to take reasonable care to avoid harm to the employee. However, there is no special or exceptional duty of care owed by an employer to an employee beyond what is reasonable in all of the circumstances.
The primary judge concluded that the Club's evidence "fell short" in a number of respects as follows:
1. There was no evidence as to the method that the Worker had been instructed to use and the Safety Brochure, the only relevant document, referred only to the bin liner being changed, not to the manner of changing it;
2. There was no evidence as to any risk assessment undertaken by the Club either with respect to its employees or the public; and
3. The evidence regarding induction training given to employees was entirely unsatisfactory.
Her Honour considered that the Club had an obligation to conduct a risk assessment in respect of the job of removing garbage from a bin on a sloping, grassy area contaminated by refuse such a squashed fruit and liquid and to take steps either to eliminate or to ameliorate the risk of injury to an employee from slipping on grass while emptying a garbage bin. Her Honour considered that it was incumbent upon the Club to undertake an assessment of the risk to both employees and public in wheeling the bin as against dragging the bin liner. Her Honour said that while the Risk might be "slight" it was "nevertheless obvious".
While the primary judge considered that the Club ought to have conducted proper risk assessments, there was no evidence as to the nature of the risk assessment that should have been conducted, or of the likely result of such an assessment. The reference to risk assessment in relation to the public is obscure. Further, the question of induction training given to the Worker would be relevant only if her Honour concluded that there was in fact a System of Work prescribed by the Club that was not in fact adopted by the Worker. That question is raised in the Worker's application for leave to file a notice of contention. That matter is addressed below.
The primary judge observed that the Club failed to ensure that the Worker was not lifting excessive weight. Her Honour observed that the weight was an important consideration whether it was the bin that was being moved or the bin liner, and that a 240 litre garbage bin full of food, cans, plates, cups, drinks and so on must be taken to have a considerable weight.
The primary judge found that the Club failed to take reasonable steps to provide a safe area of work. Her Honour considered that the provision of concrete pads would not only have obviated the risk of food and liquid being spilt onto grass and thereby becoming mushy and slippery, but would also have provided a solid base from which an employee could remove a loaded bin liner from a bin. That finding, of course, raises the question of just how extensive the concrete pad was intended to be. The finding suggests that it was to be enough to ensure that spillage did not go onto the grass but remained on the concrete slab. That of itself raises the question as to whether spillage on the concrete slab would be less dangerous than spillage on grass. In the absence of evidence one way or the other, one might expect that moist garbage on concrete might continue to be slippery whereas moisture in garbage spilled on grass might be absorbed into the ground. Even if wet concrete has greater friction than wet grass, a concrete slab could introduce other potential dangers. For example, a more severe injury might result if a person was to slip and fall onto the concrete surface, or edge of the concrete surface, as opposed to falling onto the softer grass.
The primary judge said that the precaution of a concrete pad was reasonable whether the system involved removing the loaded bin liner from the bin or wheeling the bin to the garbage skip, since it would give a person in the position of the Worker a platform from which he or she could manoeuvre the bin liner or the bin. However, while it might be accepted that a concrete slab may provide a more solid base on which to stand while removing a loaded bin liner from the bin, there was no examination of the precise mechanism of the Worker's injury. Her Honour found, that it was not necessary to have concrete slabs under bins that were on level ground, but there was no indication of the degree of the slope of the grass. The Worker's evidence as to his injury indicates that the bins were facing across the slope, rather than up and down the slope, since he said that, when he faced the bin, one foot was lower than the other. However, it is by no means clear that, if the Worker had been standing on a level concrete slab covered by dropped garbage, it was less likely that he would have slipped as he did.
The primary judge found that there existed a reasonably foreseeable risk of harm to employees, namely, slipping or falling while removing bin liners from the bins during a busy race day. Her Honour found that the "probability of the manifestation and magnitude of the risk was moderate". Her Honour found that the Club was in breach of its duty of care to assess the Risk and to take steps to ameliorate it. Her Honour found that the Club had not turned its mind to the assessment of the Risk nor the steps that might have been taken to ameliorate it.
The primary judge considered that a reasonable person in the position of the Club would have foreseen that there existed a risk of injury to its employees and to the public in the removal of garbage from a large bin on a sloping and potentially sloppy or wet lawn in a throng of people. Her Honour said that the risk of injury included the risk of slipping or falling and that the likelihood of someone slipping or falling and suffering an injury of the type affecting the Worker was "in the moderate category … not remote or far-fetched". Her Honour assessed the magnitude of the Risk as "moderate" in that it could range from a mere slip to a slip occasioning injury to the leg or leg joints or to a fall involving the head. Her Honour said that a reasonable response would have been to supply a solid base on which the bins could sit. Her Honour considered that to be a relatively simple and inexpensive response, without indicating the nature of the expense. However, there was no evidence as to the cost of that response.
The primary judge said that another reasonable response would be to increase the number of bins with a concomitant increase in the number of staff. Her Honour did not quantify that increase or indicate how such a response would have ameliorated the risk of injury.
The primary judge then found that the Worker was carrying out a System of Work that was consistent with the Safety Brochure and that it was a system that he had employed on previous occasions. Her Honour observed that there was no evidence as to when or by whom the Worker had been told to use the System of Work alleged by the Club. He had requested a change in the system, by the installation of concrete pads, and was rebuffed. Her Honour was therefore not persuaded that the Worker was guilty of negligence that contributed to his injury.
[7]
The Appeal
In its notice of appeal filed on 30 November 2018, the Club asserts that the primary judge erred in:
1. finding that the Club breached its duty of care to the Worker;
2. finding that there was a foreseeable risk of injury in the task of emptying bins that required the Club to install concrete pads to support the bins, or to provide more bins, or an increase in the number of staff;
3. holding that it would be a relatively simple and inexpensive response to put down concrete pads in the absence of evidence as to the cost and that increases in the number of bins and staff were reasonable responses in the absence of evidence as to the numbers and expense involved;
4. finding that the Worker was carrying out the task of emptying bins in accordance with an established System of Work rather than adopting a procedure of his own choosing and failing to find that the Worker was acting contrary to the established system for emptying the bins;
5. holding that the Worker was lifting an excessive weight at the time of his injury; and
6. holding that the Worker was not contributorily negligent.
The notice of appeal also asserted that the damages awarded were excessive. Under that rubric, the Club contended that insufficient allowance was made for the vicissitudes of life in assessing future economic loss.
In addition, the Worker filed a notice of cross-appeal on 30 January 2019 in relation to his claim for interest on damages as prescribed by s 151M of the Workers Compensation Act. The cross-appeal relies on the following grounds:
1. The primary judge erred in failing to exercise her discretion under s 151M where the factual matters that enlivened s 151M were not in dispute;
2. The primary judge improperly interpreted the application of s 151M, in so far as her Honour found that its statutory interpretation and construction should also be "informed" by the provisions of the Civil Procedure Act 2005 (NSW) or such other provisions and decisions that were applicable to interest on damages at common law; and
3. The primary judge erred in finding that the "modified common law" provisions of the Workers Compensation Act preserved and mandated consideration and application of proscribed considerations and principles that disentitled the Worker to interest on work injury damages.
At the hearing of the appeal, the Worker sought to rely on a notice of contention raising the following questions:
1. The Club's servants, Ms Sinclair and Ms McKinnon, did not supervise the enforcement of the Club's alleged System of Work of waste removal and if the Worker had been so observed, the Worker's risk of injury would have been materially reduced and eliminated;
2. If the Court finds that the alleged system was not followed, by reason of the failure to observe the Worker, the harm was the result, not of conscious departure from the system by the Worker, but the failure to observe and enforce or implement the system by the Club, in respect of which no contributory negligence should be found.
[8]
Grounds 1, 2, 3 and 5
The Club characterised the particulars of negligence and breach of statutory duty provided on behalf of the Worker as being as:
assessing and identifying the Risk;
heeding complaints;
providing concrete pads for the bins and employees to stand on;
providing some mechanical lifting device;
providing more staff to assist;
ensuring that the Worker did not lift excessive weight; and
complying with provisions of the Safety Act and the Regulations.
The Club contended that the primary judge identified the reasonably foreseeable risk of injury as slipping and falling whilst removing loaded bin liners from bins on a busy and well-attended race day, and found that the Club did not consider that Risk in order to assess it or the steps that might have been taken to ameliorate the Risk, thereby breaching its duty to the Worker. However, the Club complains, her Honour did not mention the heaviness of loaded bin liners or what an assessment would actually have found by way of risk and response to it. Nor did her Honour identify the step or steps that ought to have been taken in order to ameliorate the Risk, apart from the installation of concrete pads. The Club asserts that it was for the Worker to establish both what ought to have been done that was not done, and that it was unreasonable in the circumstances not to do that.
The Club points out that it was an issue between the parties as to whether the Worker had been instructed or allowed to remove loaded bin liners from the bins and drag them to the garbage skip or had been instructed to wheel the bins containing the loaded bin liners to the garbage skip. The primary judge resolved that question by finding that the Worker had been instructed to work as he in fact did, by removing loaded bin liners from the bins and dragging them to the garbage skip. The Club contends, however, that that conclusion was not vital to the outcome in so far as her Honour did not, for example, hold that the Club failed to exercise reasonable care by not establishing and enforcing a procedure whereby employees such as the Worker wheeled the bins to the garbage skip. Rather, her Honour appears to have treated what the Worker was doing when he slipped as background and concluded that the Risk to which he was exposed could have been obviated by the provision of concrete pads and ensuring that he did not lift excessive weight. The question of whether the System of Work described by the Club should have been enforced is raised by the notice of contention.
As I have said, the Club contended that the essential ground of the decision of the primary judge was the failure to put down concrete pads so as to constitute a solid base for bins, although her Honour added that an increase in the number of bins and a concomitant increase in the number of staff could have achieved the same end. However, her Honour did not make any finding indicating how many more bins or how many more staff were required or how the increase would achieve that end.
It appears that the primary judge ultimately decided the case on the basis that concrete pads should have been put down and that the reference to the weight of the loaded bin liners was not determinative. The Club emphasises the Worker's evidence that he had used the sort of effort that he employed on the occasion in question to extract full bin liners from the bins, giving it a bit of "oopmh" to break suction between the bin liner and the bin, without knowing what the weight of the full bin liner was. The Club points out that her Honour noted that the Worker was aware of safe lifting techniques and that the Safety Brochure gave instructions on safe lifting techniques.
The Club makes the following complaints:
the reasons of the primary judge give rise to serious doubt as to whether her Honour was applying a standard of reasonable care or a higher standard, in circumstances where on several occasions her Honour used language indicative of a more stringent standard.
the primary judge said that if there was risk of injury that needed action it could have been dealt with at "minimal cost" in circumstances where there was no evidence as to the cost involved in placing concrete pads or taking any of the other steps described above, whether they are fairly characterised as minimal or otherwise.
limiting her attention to the Scone Cup day resulted in an incomplete analysis of the situation by her Honour.
The Club complains that the primary judge adopted the placing of concrete pads as a solution without considering fully other problems concerning safety, merely stating that concrete pads would not constitute a trip risk when they were supporting obvious and large black bins. That proposition fails to take account of the fact that concrete pads, installed in sufficient numbers to accommodate the busy Scone Cup day would be a permanent fixture for other race days when there would not necessarily be bins placed on them. Added to the risk of patrons tripping, was the added difficulty involved in mowing grass around the concrete pads or platforms. Thus, the Club says, her Honour should not have held that concrete pads would avoid or significantly minimise the risk of slipping in circumstances where a level concrete pad on a slope must be elevated above the surrounding ground as it falls away, constituting a trip hazard and something that could impede vehicles and equipment.
There was evidence that, in other years, the Scone Cup day occurred during heavy rain when the grass slope was also used. The Club emphasises that there was no evidence of injuries of the kind suffered by the Worker having been suffered by other employees performing the same work at such times. Further, notwithstanding that, after the Worker's injury, there was no change in the procedures adopted by the Club on race days, including Scone Cup race days, there was no evidence of any subsequent injury by other employees. The evidence of Ms Sinclair and Ms McKinnon was that no such injury had been reported or come to their knowledge before or since the injury to the Worker. Ms McKinnon still worked with the Club as at the date of trial.
The Worker placed some considerable reliance on his evidence of complaint to Mr Cadalbert. He gave evidence that he told Mr Cadalbert that there was a need for concrete slabs but did not give evidence that he elaborated as to why there was such a need. However, the Worker agreed that he had not complained to Ms McKinnon.
Ms Sinclair also gave evidence as to the absence of concrete pads at other country race courses. She said that she had worked at some five racecourses, including Tamworth, a city that is much larger than Scone. She said that she had never seen such concrete pads.
The Club complains that the primary judge's reference to the Worker handling "excessive weight" was somewhat vague. Further, there was no suggestion that excessive weight in any way contributed to the fall suffered by the Worker that gave rise to his injury.
The Club asserts that the concept of risk assessment does not assist the Worker's case in circumstances where there was a long history both before and after the Worker's injury of absence of problems and no example of precautionary measures taken elsewhere. It would therefore be concluded, the Club contends, that a risk assessment would have demonstrated that no action was necessary. More specifically, the Club contends that a risk assessment would not have demonstrated the need for concrete pads without a cost benefit analysis comparing the magnitude of the Risk with the proposed cost of dealing with it, being the cost of concrete pads or the employment of additional staff. The primary judge was not in a position to determine that such costs were "minimal".
[9]
Ground 4 and Notice of Contention
As I have indicated, the primary judge accepted the evidence of the Worker over that of Ms Sinclair and Ms McKinnon as to the System of Work that was to be adopted. Her Honour buttressed her acceptance of the Worker's evidence by reference to her conclusion that his evidence was consistent with the Safety Brochure. However, as indicated above, the system contended for by the Club is equally consistent with the Safety Brochure.
The primary judge also appeared to regard the fact that the bins were placed back-to-back as supportive of the Worker. That was the evidence of the Club's witnesses, whereas the Worker vehemently denied that they were placed back-to-back. It is difficult to see why dragging a loaded bin liner backwards through the crowd was less of a risk than wheeling a bin through the crowd. Dragging a loaded bin liner would carry the risk of rupture and spilling the contents on the ground. The wheeling of the bin would equally involve moving through the crowd, but without the risk of rupture and spillage.
The evidence of Ms Sinclair and Ms McKinnon was to the like effect as to the System of Work and as to the absence of any complaint ever having been made. The Worker from time to time communicated with each of them, but made no complaint. There was certainly no evidence that he took the matter of a concrete pad to Ms Sinclair or Ms McKinnon.
In support of his notice of contention, the Worker asserts that the supervision issue was within his pleaded case as part of his allegation of a failure to provide a "safe system". However, nothing in his statement of claim asserts that the system that should have been in place was the system about which Ms Sinclair and Ms McKinnon gave evidence. The statement of claim merely says "[The Club] … owed the [Worker] a duty to provide a safe place and [S]ystem of [W]ork…" and that the Club failed, by its servants and agents, to take reasonable care to "… monitor, identify, reduce" the Risk. That is to say, the Worker did not specifically contend that the System of Work should have required him to wheel the bins loaded with garbage to the garbage skip. The complaint about the System of Work was the absence of a concrete pad or level area on which to stand while removing the loaded bin liners from the bins. There was no complaint that the Club failed to ensure that the System of Work described by Ms Sinclair and Ms McKinnon was adopted by employees such as the Worker. The notice of contention asserts, for the first time, that Ms Sinclair and Ms McKinnon did not supervise the enforcement of the alleged System of Work. That is not the complaint made in the statement of claim.
In final addresses before the primary judge, the Worker sought to amend his statement of claim to plead as an alternative that, if her Honour found that he was instructed to adopt the system described by Ms Sinclair and Ms McKinnon, the Club was negligent or in breach of duty in failing to take reasonable care to supervise the Worker to ensure that the system was implemented. That amendment was opposed on behalf of the Club on the basis that no clear cut proposition was ever put to either Ms McKinnon or Ms Sinclair that the Club failed to enforce the System of Work contended for by them. Had the allegation been made, witnesses could have dealt with it. The Club indicated that it was not in a position to meet such a case.
The primary judge suggested that an amendment may not be necessary. After considerable argument, it appears that the primary judge declined to give leave to make the amendment sought on behalf of the Worker. The refusal to permit amendment was not raised by the Worker's notice of contention. No argument was advanced before this Court that the refusal of leave to amend was an error. In the circumstances, leave to raise by notice of contention an argument that the Club was negligent in failing to supervise the Worker to ensure that he adopted the Club's system should be refused.
It is of some significance that the Worker now contends that, had the System of Work described by Ms Sinclair and Ms McKinnon been enforced, he may not have suffered his injury. That raises the question of the Club's contention that the Worker himself contributed to his injury by adopting the System of Work about which he gave evidence, of removing loaded bin liners from the bin rather than wheeling the bin to the skip. If there were to be a finding that that was the System of Work and that the Worker was aware of it, that may well lead to a finding of contributory negligence. However, the primary judge found that the Worker had not been instructed to wheel the bins. The evidence as to the instructions given to the Worker is not sufficiently clear to justify overturning that finding. In the circumstances, if it were relevant, the contention of contributory negligence should be just rejected.
[10]
Remaining Issues
In the light of that conclusion, it is unnecessary to deal with the Club's ground of appeal that insufficient allowance was made for vicissitudes in relation to the assessment of future economic loss. It is also unnecessary to deal with the cross-appeal. There appears to be no real merit in the cross-appeal. If the Worker was entitled to retain the verdict, he would be required to repay from the amount of the verdict the amount of workers' compensation that he received during the fairly lengthy period between the time of the injury and the time of the verdict. There appears to be no evidence as to the reasons for that delay. However, during that time, the Worker received workers' compensation payments. In those circumstances, I would not be disposed to interfere with the exercise of discretion conferred on the primary judge. However, it is not necessary to express any firm view on that question.
[11]
Conclusion
The appeal should be allowed. The cross-appeal should be dismissed and leave to rely upon the notice of contention refused. The orders of the primary judge should be set aside. In lieu of those orders, there should be a direction that judgment be entered for the defendant and that the plaintiff pay the defendant's costs. The respondent should pay the appellant's costs of the appeal. The respondent should have a certificate under the Suitors' Fund Act 1951 (NSW) if he is otherwise entitled to a certificate.
[12]
Endnotes
See primary decision at [34], [67], [101], [104].
See primary decision at [37].
See primary decision at [51].
See primary decision at [80].
See primary decision at [112].
See Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 October 2019
Ms Sinclair had presided over many events at the Club's course over the years and constantly reviewed the success, or otherwise, of an event with the intention of improving it. She said that there had been no complaint about the slipperiness of the grassy slope in that part of the public area where the bins were located. She said that neither the Worker nor anyone else had ever suggested to her that the bins should be placed on concrete pads. She expressed the view that concrete pads would create more problems than they would solve by introducing changes of level in what was otherwise an uninterrupted surface, would become a trip hazard and would make lawn maintenance more difficult. She said that the installation of concrete pads was not practical or warranted, assuming that the System of Work dictated by the Club was adopted and implemented. She asserted that, on the basis that that system was implemented, there would be no need for lifting devices or trolleys.
Ms Sinclair said that on the day in question tables and chairs were provided for the public and were located on a paved area adjacent to the track and on that part of the grassed area that had the least slope. She said the bins were placed in pairs around the lawn. Ms Sinclair was adamant that, had she seen the Worker lift bin liners out of the bins, she would have instructed him to take the bins, not the liners, to the garbage skip, since that that was the work system in place during the period of her employment with the Club.
Ms Sinclair was shown the Safety Brochure and, as her Honour said, "rejected the proposition that this document directed that the bin liners (rather than the bins) had to be changed". The Safety Brochure, of course, says that bin liners are to be changed regularly. However, it does not specify one way or the other whether a loaded bin liner was to be removed from the bin and taken to the garbage skip, or whether the bin was to be wheeled to the garbage skip and the bin liner removed at the garbage skip.
The primary judge observed that Ms Sinclair was cross-examined carefully about the System of Work and was not shaken. However, her Honour said that Ms Sinclair's "responses tended to be rigid", without explaining what was intended by that characterisation. When assessing the respective credibility of the witnesses, the primary judge repeated her observation that Ms Sinclair "was very rigid in her evidence and refused even to make concessions about obvious objective facts". Her Honour also characterised Ms Sinclair as being at times "defensive and unwilling to concede even obvious propositions".
Those comments were based on the following exchange in cross-examination:
"Q. If that was combined with food waste … then that would significantly increase the weight, the mass of the bag, or the weight of the waste in these bins, wouldn't it?
A. Possibly, [i]t was only paper plates and things of that nature.
…
Q. And so, in terms of the actual amount of waste taken away ultimately … it's not all paper plates and aluminium cans, is it, I mean there's food waste as well, and all sorts of waste, it's not necessarily paper plates, correct?
A. I don't know the answer to that question. It depends from where."
It is difficult to see any basis for criticism of Ms Sinclair's answers in that regard. Ms Sinclair could not be understood as saying that a bin liner containing food waste was not heavier than an empty bin liner. Rather, she was asked about a "significant increase" without any specific weight being mentioned. The question did not propose a specific comparison of weights. It is difficult to see why Ms Sinclair's answers were exceptionable in any way.
Ms Donna McKinnon is the operations manager of the Club. She was previously the track supervisor and groundsman and has worked for the Club for 18 years as a full-time employee. Ms McKinnon said that Ms Sinclair instructed her that the bins were to be taken to the garbage skip to be emptied. She was not asked whether she gave that instruction to the Worker. She said that Ms Sinclair was supervising or instructing her and the Worker in terms of the system as she understood it at the time. Ms McKinnon denied that she had ever seen the Worker, or anyone else, dragging loaded bin liners to the garbage skip. She said that, had she done so, she would have corrected the person in question. She said that, on minor race days, the bins were emptied on the following day.
On the day in question, Ms McKinnon started work early in order to supervise track work. She and some of the casual staff set up the bins, distributing them throughout the viewing areas, near the bars and on garden paths. Others were placed on the grassy slope. She said that they were placed in twos, back-to-back and were lined with the bin liners. She did not recall seeing the Worker setting up bins.
Ms Sinclair gave evidence that she had never received a complaint about anyone slipping on the grass or injuring themselves while removing garbage. [4] Ms McKinnon also denied that the Worker had ever spoken to her about the grassy slope being slippery or dangerous. She said that no employee or patron had complained to her about the slope and confirmed that no one had complained to her about the system of emptying the bins. She said that, had a complaint been made, she would have reported it to Ms Sinclair. She said that no one had reported an injury to her as a result of slipping on the grassy slope and no one has since made such a report. Ms McKinnon denied that the Worker ever mentioned to her or in her presence that concrete pads were necessary. She emphatically denied that she ate her lunch in the company of either the Worker or Mr Cadalbert.
Ms McKinnon confirmed Ms Sinclair's evidence that the system in place for the transfer of rubbish from bins to the garbage skip was to take an empty bin with a liner in the place of a full bin and replace the full bin with the empty bin and then wheel the full bin to the garbage skip. She was adamant that that procedure had been employed on more than 50 occasions and that it did not change after the day in question. She was adamant that on Scone Cup days, the process was to take a bin with a liner from the skip to a full bin and swap them over. She said that Ms Sinclair had instructed her to that effect. She agreed that it would be difficult to pull a bin through a crowd of people but rejected the proposition that it was not possible or that it was unsafe.
The Worker adduced opinion evidence from Mr Neil Adams, a safety manager and ergonomic consultant. The primary judge accepted that Mr Adams was appropriately qualified to express the opinions that he expressed but that the probative value of Mr Adams report was somewhat diminished because it was based on information furnished by the Worker and Mr Adams did not visit the Club's course. While the primary judge accepted that the opinion evidence of Mr Adams was of limited probative value, her Honour accepted his opinion that the Risk that eventuated was both foreseeable and that reasonable precautions to protect against that Risk, including the construction of concrete pads, could have been employed to reduce the risk of harm.
Mr Adams expressed the opinion that a risk of injury was foreseeable where a person was required to lift a heavy object above head height manually while standing on a sloping surface. He said that the risk of injury is likely to be exacerbated if the Worker believes, rightly or wrongly, that he is under pressure to complete a task in a limited time. In Mr Adams' opinion there is a significant and quite obvious risk that any person might sustain a serious musculoskeletal injury if the person is obliged to lift loads repeatedly that are awkward, large or heavy or that have characteristics that necessitate the adoption of any adverse posture, such as lifting to above head height. He said that that risk would be substantially increased if the task had to be performed in a situation where the person was exposed to unstable or slippery footing, as might be expected to occur if the lift is performed on a sloping external surface or in the presence of potential lubricants on the ground.
Mr Adams also expressed the opinion that it was obvious, and quite predictable, that if workers are repeatedly obliged to lift, manually, bin liners filled with rubbish from bins that are located on sloping grassed areas, an "injurious incident might eventually occur", whether due solely to substantial stresses being imposed on the body by the loads or due to a fall experienced during the performance of such a lift on a slope and in the presence of slippery debris on the ground.
It is significant that Mr Adams was apparently not asked to make any assumption as to the degree of the slope in question. Nor, indeed, was there any specific evidence as to the degree of the slope. Photographs in evidence did not suggest that the slope was in any way acute, although the Worker said that the photographs did not accurately depict the extent of slope. Ms Sinclair characterised the slope as "gentle" and was not challenged on that characterisation.
The primary judge accepted the Worker's evidence that he emptied the bins by removing the bin liners and taking the loaded bin liners to the garbage skip and that removing the loaded bin liners was the method he had employed on previous occasions. Her Honour considered that that method was consistent with the Safety Brochure and was not contrary to common sense. However, her Honour accepted that, contrary to the Worker's evidence, the bins were placed back to back with the handles touching each other. She said that an employee would have had to pull a bin forward on the grass to access the handle and then manoeuvre it into a position whereby it could be dragged through the crowd. Her Honour considered that the bins, when full, were at risk of overturning if they were wheeled through the crowd, whereas the worst that could occur, if a loaded bin liner were removed and dragged to the garbage skip, was that the bin liner might burst and spill its contents.
The primary judge referred to the Worker's evidence that he had asked for concrete pads to be installed and the denial by Ms McKinnon and Ms Sinclair of ever being informed of such a request. Her Honour observed that, although Mr Cadalbert was not called to give evidence by the Worker, it was clear that the Club's system of receiving and handling complaints was ad hoc and appeared to have occurred largely in the lunchroom. Her Honour observed that Mr Cadalbert was not called by either party in circumstances where he worked for the Club at least until 2012. [5] There was no evidence to suggest that any attempts had been made to contact him for the purposes of giving evidence and her Honour was not disposed to draw any adverse inference against either party for failure to call him.
The primary judge found that there were six bins on the sloping grassed area for which concrete pads were required, and that the other bins on the concourse did not need concrete pads. Her Honour considered that the placement of concrete pads on the sloping lawns was a reasonable measure for the Club to take to minimise or eliminate the risk of harm because they would provide a level platform on which the garbage collector could stand, thereby minimising the risk of slipping on food or fruit around the bin. Her Honour considered that it was unlikely that concrete pads would themselves constitute a risk of tripping since they would be supporting obvious and large black bins. That conclusion, of course, fails to take account of the fact that the Scone Cup race day attracts many more patrons than most of the Club's race days, when there is no requirement for the same number of bins. It is possible on such race days the concrete pads would not have bins placed on them, the pads then constituting a possible trip hazard.
While the primary judge accepted that it may be true that there were only two days in the racing calendar each year that required the deployment of a large number of bins, her Honour's view was that the cost and inconvenience of constructing concrete pads was outweighed by the benefits. It is significant, and a ground of complaint by the Club, that her Honour had no evidence as to the cost of constructing concrete pads.
The primary judge found that, while both Ms Sinclair and Ms McKinnon gave evidence as to the System of Work in place at the relevant time, there was no evidence to establish when or by whom notice of that System of Work was communicated to the Worker. Her Honour said that there was no evidence to establish that, on the day in question, the Worker was carrying out his duties in a manner that was different from the manner in which he carried out those duties on previous race days. Her Honour considered that that manner was consistent with the Worker's understanding of the process. Her Honour was not satisfied that the Club had in fact instructed the Worker to wheel the bins to the garbage skip and considered that having to manoeuvre a bin from its position back to back with its neighbour and wheel it through a large and boisterous crowd would be dangerous.
The primary judge accepted that neither Ms Sinclair nor Ms McKinnon had seen the Worker drag loaded bin liners, but considered that it was not unlikely that they did not see him when there were about 8,000 people in and around the course. Her Honour considered that it was entirely feasible that neither Ms Sinclair nor Ms McKinnon had seen the Worker emptying bins and equally feasible that their memories may have faded after the passage of time.
The Club contends that the primary judge ought to have concluded, on the evidence before her Honour, that there was no foreseeable risk of injury that was measurable, or that there was no risk sufficiently substantial to warrant the steps that her Honour held should be taken. Reference was made to the opinion evidence of Mr Adams, which her Honour treated with a degree of reserve. While Mr Adams suggested the installation of concrete pads, he said nothing about the cost of doing so and said nothing about the additional risks that they may have created, indicating that he did not turn his mind to that question. The Club contends that there is no evidence of the risk of injury such as to justify any action of the kind advanced on behalf of the Worker.
The primary judge accepted the evidence of the Worker over that of Ms Sinclair and Ms McKinnon as to the System of Work. The point of departure was whether the System of Work entailed the dragging of a bin liner loaded with garbage or the wheeling of the bins. It is difficult to see where a preference for the Worker's evidence leads. Either way, the Worker would have been standing on a gently sloping grassed ground and applying force either to the bin liner containing refuse or to the bin itself. The fact that the bins have wheels suggests that they would be easier to move than to drag a bin liner containing garbage. Even in a crowd, patrons would be able to see a bin and the employee pulling it or pushing it. It is difficult to see why there would be any greater difficulty in wheeling a bin than in pulling a bin liner loaded with garbage.
The reasoning of the primary judge suggests that her Honour understood the Safety Brochure as requiring that the bin liners be removed where the bin was located rather than at the garbage skip, after the bin had been wheeled to the garbage skip. Certainly, the Safety Brochure is equivocal as to whether the changing of bin liners was to occur at the garbage skip or at the site of the bin. However, it is quite clear that the system described by Ms Sinclair is equally consistent with the Safety Brochure, as is the system adopted by the Worker.
I consider, for the reasons advanced on behalf of the Club, that the primary judge erred in concluding that the Club failed to take reasonable care by reason of its failure to install concrete pads upon which to locate the bins. There was no evidence as to the gradient of the slope to indicate why the slope itself was a hazard for an employee removing loaded bin liners from the bins. Clearly, the slope was not so steep that the bins were unstable. The precise mechanism of the Worker's fall, in relation to his standing on an incline, is quite unclear. There was no specific or reliable evidence as to the area of, or depth of, the pads or the places where they should have been installed. It is by no means certain that a concrete pad would be less prone to causing injury than grass. I do not consider that the Club was in breach of any duty of care or any statutory duty that it owed to the Worker.