SIVAKUMAR SHANMUGARATNAM v STRASBURGER ENTERPRISES

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1249/01 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40758/03

MASON P SANTOW JA CRIPPS AJA

SIVAKUMAR SHANMUGARATNAM v STRASBURGER ENTERPRISES (PROPERTIES) PTY LIMITED TRADING AS QUIX FOOD STORE S

JUDGMENT 1 MASON P: This appeal arises out of proceedings heard in the District Court before Delaney DCJ. In those proceedings, the appellant claimed damages from his employer, the respondent, for injuries sustained in the course of employment. 2 The appellant had been employed by the respondent as a casual cashier and customer service officer since August or September 1998. 3 On 6 November 1998, he attended the respondent's Quix Food Stores premises at Blacktown to work the evening shift running from 11pm to 7am. His usual place of work was the Quix store at Mt Druitt. However, the Blacktown store had been taken over from a private owner and was in the process of being refitted. The store's assistant manager, Mr Alex Vujasinovic, gave evidence that the work was going on virtually twenty-four hours a day. The appellant had been sent to the store to help stock the shelves, clean the rubbish up and generally prepare it for trading. 4 Rubbish from the store was generally disposed of by placing it in a commercial garbage skip or dumpster located outside the store but on the property. During the course of the evening, the skip became full with rubbish protruding above the top rim of the bin. The appellant went and obtained a ladder, placed it on the side of the gate adjacent to the bin, climbed up the ladder and got into the bin. He then began to stamp the rubbish down with one foot on the rim of the bin and the other inside the bin. He said that whilst doing this, at one point the foot on the rim of the bin slipped outside the bin. As he attempted to stand up again and regain his balance, he fell, hitting the concrete ground below. The height from the rim of the bin to the ground was approximately 145 centimetres, the height that the appellant said was about to his neck. He suffered injury to his right arm and wrist. 5 The respondent did not dispute that it had owed the appellant a duty of care in the circumstances. However it disputed that there had been any breach of the relevant duty. There was also a dispute as to the extent of the disability stemming from the initial injury. 6 The appellant's case was that he had been specifically directed to get into the bin and stamp the rubbish by Mr Vujasinovic. He also gave evidence that Mr Vujasinovic was having a smoke near the driveway when he climbed up into the bin, the implication being that he would have observed what was happening and implicitly acquiesced in it. The appellant was challenged as to this instruction and as to the presence of Mr Vujasinovic. Mr Vujasinovic did not contest that the appellant had been asked to dispose of rubbish or that the skip had become full that night. However he denied that at any stage during the night he had given a specific direction to the appellant to climb into the skip or stamp down the rubbish. He also denied that he had been outside observing the appellant at the time the accident took place. 7 A key issue at the trial was the credit of the appellant with respect to both liability and damages. Ultimately, based in large part upon observance of the evidence of both the appellant and Mr Vujasinovic, the trial Judge accepted as truthful the evidence of Mr Vujasinovic and contrasted this with the evidence of the appellant. His Honour said further: I formed the impression that [Mr Vujasinovic] was an honest and straight forward witness, doing the best to recall events of some time ago and willing to concede that he did not recall matters which he did not recall and being firmly responsive to questions about the events of the night which suggested that he had done anything alleged by the plaintiff about giving an instruction to go into the bin or stamp it down. I accept that Mr Vujasinovic never gave him any instruction to either enter the bin or stamp down cardboard in the bin and that he was not present when the appellant did so, nor did he see him take the ladder to the bin.

8 His Honour explained in some detail why he reached these conclusions. In part it was his observation of the demeanour of the two witnesses, in part it was based upon some damage to the appellant's credibility in relation to the impact of the accident in that there had been a video taken which showed capacities other than those asserted by the appellant in his original trial testimony. His Honour's conclusion (at Red book 36) was as follows: In my opinion, the plaintiff's version should be rejected and no inferences should be drawn from the evidence of Alex Vujasinovic about the manner in which the work was to be performed leading to any suggestion that indirectly the plaintiff was required to get into the bin and squash down the rubbish. In those circumstances, there being no request or requirement that he do so, this not being the system of work in place, there was no breach of any duty on the defendant to implement, maintain or enforce any system of work. The system did not require the actions taken by the plaintiff, he was the author of his own misfortune. There will be a verdict for the defendant. 9 On appeal, the appellant submits that Delaney DCJ, failed to deal with an alternative case put to him and failed to reach a conclusion that was open to him on the facts otherwise established. It was submitted that, irrespective of whether or not there was an express or implicit direction, there had been a breach of duty of care on ordinary principles, through the employer's failure to devise, maintain, institute or otherwise enforce a safe system of garbage disposal once the dumpster was full. The nub as presented in this Court is that the employer should have given explicit instructions, perhaps even written instructions, not to climb up onto the top of the dumpster or perhaps alternatively, if he did so, to do it in a more careful way than unfortunately occurred. 10 An initial question arises as to whether it is open to the appellant to advance this alternative case. It was not addressed in the trial Judge's reasons. The appellant does not seek a new trial but submits that this Court is able to determine the matter in his favour on the basis of the facts otherwise established. 11 The respondent contends that, even though this is an appeal by way of re-hearing, it is not open to press the alternative case having regard to the way the matter was run below. The submission is that the alternative case was not opened or maintained at trial. Had it been, the defendant might have conducted the case differently at trial. The relevant principles are well known (see Coulton v Holcombe (1986) 162 CLR 1 and Multicon Engineering Pty Limited v Federal Airports Corporation (1997) 47 NSWLR 631). 12 There was considerable debate as to whether an alternative case was put or pressed at trial. The way it is formulated before us is that, in light of the credit findings of the trial Judge, the appellant accepts that there was no instruction to climb on top of the bin and that he climbed without Mr Vujasinovic seeing him do so. Nevertheless, it is contended that the employer was negligent in not providing clear, perhaps written, instruction not to go about the task in this way. 13 The appellant points to some of the particulars of negligence, forming part of par 5 of the ordinary statement of claim. These include allegations of failing to provide a safe means of disposing of rubbish and failing to warn of dangers associated with climbing on top of the rubbish bins. As a matter of strict pleading, particulars cannot enlarge a pleaded cause of action. The cause of action pleaded narratively in par 3 is squarely based on a direction. Furthermore, the particulars are capable of being read in the context of the alleged positive direction. They still have work to do in that context. 14 At trial, the plaintiff tendered a report containing an expert opinion of Ms Elizabeth Sutherton. Ms Sutherton has a postgraduate diploma in occupational health and safety and is a Workcare-accredited safety committee trainer. She carries on business as a freelance safety consultant. The report was admitted without objection and there was no cross-examination. It proceeds on the basis of instructions that the appellant was requested to get up and squash rubbish in the overfull bin. Arguably, it proceeds on a broader basis in that it expresses various opinions as to what ought to have been done to train and assist someone such as the appellant in the performance of tasks with which he was confronted. These include the witness' assertion that: I consider that the respondent had the overall supervision and most likely should have provided the applicant with a written procedure directing the applicant not to climb onto or into the bin. The applicant should have been provided with the gate key and adequate, appropriate tools to manoeuvre and rearrange the load as need be.... Large plastic bin bags for the overflow would obviate the requirement to climb onto the bin contents to squash them. I am of the opinion the applicant ought to have been provided a safe system of work and certainly should have provided written procedures, instruction and training to safely carry out the task.

15 I must say that I find this report to be of limited assistance. It is little more than a series of conclusions unsupported by any reference to legislation, standards, industry practices or practical examples. The opinions focus entirely upon the accident that did happen, without any recognition that consideration whether the particular warning should have been given requires some advertence to the full range of matters that ought to have been addressed by a reasonable employer in advance of the accident; not just those things that, with the benefit of hindsight, might have obviated the accident that did occur. 16 I have considered anxiously whether this report effectively enlarged the issues beyond the pleadings. In my view it did not. When the case was opened in the District Court, senior counsel for the plaintiff, Dr Morrison SC said: Your Honour the injury occurred when the plaintiff was directed by the assistant manager to climb up onto a large commercial bin full of waste paper and packing, mostly cardboard boxes and trample it down. 17 At Black 4 the primary Judge asked Dr Morrison.

What's the allegation of breach of duty? 18 The following exchange ensued (emphasis added): MORRISON: Your Honour there is an expert report, there is no contrary expert report on the system, that expert report from a Mr (sic) Sutherton, who is an occupational health and safety consultant and an ergonomist, says that the system of work was totally unsafe and that requiring him to climb to the top of a large metal commercial bin and stamp it down and balance himself on the cardboard packaging while doing it over his objections and under the direction of the assistant manager , was so manifestly unsafe that the result was utterly predictable from the onset and that all sorts of alternatives were available. HIS HONOUR: Such as? MORRISON: Such as using a different method, large plastic bin bags in which to place the overflow. The problem was they were trying to pack too much into the bin. All they had to do was either have a second bin or place the excess in bin bags rather than try and get employees to balance on top of a large commercial bin high off the ground and jump up and down in it to try and pack more in than should be in it. So that's the unsafe system of work. The expert has not been required for cross-examination and there is no contrary report, so I was not going to spend a lot of time on that aspect of the matter. 19 In my view, this opening limited and confined the plaintiff's case to one resting upon the back of the plaintiff's claim that he was instructed by the assistant manager to climb up onto the bin. 20 The appellant's evidence from start to finish was that he knew of and had always followed a practice within the service station industry in relation to dealing with industrial rubbish when the employer arranged for a rubbish skip to be brought to the site. He said (Black 55): Q. No, you said you'd never done that before? A. I never climb, I never done stamping, only we just throw the rubbish into the bin.

Q. Yep and from time to time see, you'd, over the eight years or so before the accident, you'd thrown the rubbish into the skips before? A. Yes.

Q. And from time to time I take it, the skips would get full? A. Yes.

Q. What happened before this accident when you experienced a situation where a skip was full and you had to put some rubbish in? What did you do? A. We just knotting the bag, garbage bag, and you leave it near the bin.

Q. Right, so you just put the rubbish beside the bin? A. Beside the bin, yes. Q. You wouldn't try and-- A. No. Q. --stamp it down? A. No. 21 At 56T there was the following evidence:

Q. So just over the eight years of experience you had in service stations, you thought, from seeing other people doing it, that the right thing to do was to leave the rubbish beside the skip when it was full? A. Yes.

Q. Not to jump up inside the skip? A. Yes.

Q. Did you ever think it might be dangerous for you to get up into the skip and jump inside it? A. Yes.

Q. Why? A. It can be dangerous. I don't know what sort of things inside the bin, you know, anything can prick my, you know, body.

Q. Like what sort of things? A. Needles, glass pieces you know, any sort of pricking, antiseptic you know, this stuff and can get slippery and fall down you know. 22 No evidence was led to suggest that the practice being followed on the night in question of leaving excess rubbish beside the laden skip or dumpster was unsafe or impractical in the particular context. Indeed there was the unchallenged evidence from Mr Vujasinovic, that he had assisted in the cleaning up and that he had put the rubbish down the side and in front of the dumpster (Black 145). Furthermore he gave the following evidence (Black 151): Q. At some point in the night the dumpster became full didn't it? A. Yes.

Q. What did you tell your staff to do about it? A. Just put the rubbish out, put it wherever you can, round the sides, in the front, like I did. 23 The staff referred to included the appellant. In this Court, the appellant, through his counsel, submitted that the reference to "put it wherever you can" was tantamount to an invitation to get up and stomp down rubbish if the dumpster was full. I disagree with this interpretation of the instruction. 24 The appellant's evidence indicated that he was experienced with this practice of leaving rubbish beside a skip if it was full. He was quite clear that he recognised the dangers of climbing up on top of a full skip. He was "one hundred percent sure" that he had only done so because of his superior's positive instruction. He bolstered this with understandable and acceptable evidence that a casual employee would not lightly disregard a direction from an assistant manager. Unfortunately for the appellant, his case that he had acted on the express or implicit instructions of the assistant manager in climbing the skip, was rejected. 25 In my view, it is not open to the appellant to press an alternative case not proceeding from acceptance of his evidence that he was instructed to climb up onto the skip or that his superior knowingly acquiesced in him doing so. This is sufficient to dispose of the appeal. 26 However, in case I am wrong about this, I turn to the alternative scenario. I am quite unpersuaded that it was negligent for the employer in the circumstances not to have given the instruction or warning contended for. The general principle was stated by Gibbs CJ in Turner v State of South Australia (1982) 42 ALR 669 at 670: The duty of an employer is to take reasonable care to avoid exposing his employees to unnecessary risk of injury: Hamilton v Muroff (WA) Pty Ltd (1956) 96 CLR 18 to 25. The employer is not an insurer of his employees against danger. "For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.": Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available: Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; 47 ALJR 410 at 416-7, 419. 27 The appellant adds reference to the statements in McLean v Tedman (1984) 155 CLR 306 emphasising that an employer's obligation is not merely to provide a safe system of work, it is an obligation to establish, maintain and enforce such a system (see at 313). There are also statements relied upon by the appellant, but not (I perceive) relevant on the facts of this case, to the effect that the reasonable employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task (see at 312). I say this because the way the case was fought at trial did not proceed on the basis of a temporary inadvertence situation. The case that was opened was one of a clearly expressed, binding directive that effectively left no choice to the employee. Granted that that directive has to be factored out of consideration in the alternative case that is being considered, the fact remains that the putative instruction contended for is not posited upon meeting inadvertence, inattention or misjudgment to any substantial degree. 28 The appellant referred this Court to the decision of the High Court in Castro v Transfield Queensland Pty Limited (1983) 47 ALR 715. That was a case where an employee who went to move a heavy bottle without equipment or the assistance of fellow labourers and injured his back established a case of negligence. The Court held that the evidence in the case showed that the employer had taken no measures to ensure that the employee, when required to move an oxygen bottle, did not do so without assistance. It was a case where the employer could have guarded against the foreseeable risk of injury by prescribing a system of work under which a workman would not have attempted to carry an oxygen bottle without assistance. 29 A finding of negligence in a particular case stems from facts and evidence, not from precedents, however weighty. It is always necessary to examine the issue of breach in its particular factual context. In Castro's Case there was a direction to perform a task which could only be performed safely with assistance. That assistance was not provided and there was not a warning or direction that the employee engage it. I do not find it of any real assistance in the factual case presented here. 30 One matter that is relevant as regards a finding of negligence, even in an employment context, is the obviousness of a particular risk. An employee may be exposed to injury through inadvertence and his or her own carelessness. But it remains relevant to issues of the employer's negligence that the task at hand entailed no hidden risk. If an employee is asked to perform an everyday task capable of being performed by himself or herself without the assistance of others or special equipment, then, depending on the circumstances, it may not be unreasonable for the employer to refrain from spelling out obvious risks stemming from mis-performance of the task or misapplication of the tools provided (see generally Electric Power Transmission Pty Limited v Cuiuli (1961) 104 CLR 177 at 180 and Van Der Sluice v Display Craft Pty Limited [2002] NSWCA 204 at [74]). 31 In the present case, I think that the following matters are particularly relevant to the breach issue. In combination they explain why I am unpersuaded of negligence if the alternative negligence case were otherwise open. First, excess rubbish had already been placed outside the skip. Second, Mr Vujasinovic's instruction, fairly read, was to continue that practice. In other words, it implicitly negated a direction to do what the appellant did, albeit not with the force of a formal direction or warning. Thirdly, nothing in the practice of the industry generally or the work site in particular suggested that it was normal or imperative for excess rubbish to be dealt with in the way that the appellant did. 32 I acknowledge that on the facts as we must accept them the appellant acted out of abundance of good intention but that is not sufficient to establish negligence on the part of his employer. He obviously suffered injury in the course of his employment but we are not concerned with a compensation claim. 33 Fourthly, the height of the rim of the skip was not so high that the risk of serious injury mandated a warning against something which was in any event, only barely foreseeable. Fifthly, this was not on the particular facts, an inattention case. 34 For those reasons, I would conclude that on the facts established, even if it were fair to the employer to run the alternative case, breach of the relevant duty would not have been established. I therefore propose that the appeal be dismissed with costs. 35 SANTOW JA: I agree. 36 CRIPPS AJA: I agree. 37 MASON P: The order of the Court will be as indicated. **********

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