Was it negligent to require Mr Stoker to operate the hoist ?
75 I turn now to the second prong of Mr Stoker's claim: that it was negligent of the employer to require him to operate the hoist, given its knowledge of his prior back condition. This argument rests upon the proposition that Adecco knew or ought to have known by inquiry it should have made of Mr Stoker's susceptibility to the aggravation of the previously asymptomatic degenerative condition from which he suffered.
76 To my mind, the primary complaint of Mr Stoker is that the trial judge simply does not appear to have turned his mind to whether in the circumstances Adecco was under a particular duty given its knowledge of his prior back problems. The trial judge adopted the submissions of Adecco on this point that "the law does not require an employer to check from workers' previous employer any potential problem for manual work from the information given by the plaintiff as set out in this instance" (sic) (Red, 40E-H). In respect of this part of Mr Stoker's claim the trial judge's approach may well have been deficient in its reasoning, a point to which I shall return. I merely note at this juncture, as I have previously stated, that a failure to give adequate reasons will not necessarily compel a new trial where no miscarriage of justice can be said to have occurred. Further, bearing in mind the expense and difficulty involved in new trials, and the fact that appeals under s75A Supreme Court Act 1970 are by way of rehearing, this Court can determine the matter for itself if it is in as good a position to come to a proper decision as the trial Court.
77 It is well settled that an employer owes a duty to each employee as an individual, and must take into account any special weakness or peculiarity of the worker of which it knows: Paris v Stepney Borough Council [1951] AC 367. It is clear that the gravity of the risk to a particular employee and the knowledge of the employer will affect what steps must be taken by the employer to comply with the duty to take reasonable care. I pause to note that the decision in Paris v Stepney Borough Council deals with the situation where the employer has actual knowledge or the means of knowledge of the particular vulnerability of the employee, and does not deal with the question of duty to obtain such knowledge: see Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 36 per Thomas J. It is appropriate in this context to cite comments of Manning J in Pitsiavas v John Lysaght (Aust) Pty Ltd [1962] NSWR 1500, though strictly obiter:
"In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risk. He is not required to inquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness." (at 1504)
78 In Finn (supra) at 41, Williams J (with whom McPherson JA concurred) noted that this principle was too broadly stated insofar as it should be limited to situations where the employer had knowledge or the means of knowledge of the susceptibility. Nevertheless, Williams J considered it, with that qualification, to be good law. Finn stands for the proposition that unless some fact, circumstance or state of affairs existed which should put an employer upon special enquiry, there is no duty at common law to interrogate either prospective or existing employees as to their health and medical history: see Bailey (by his next friend Bergin) v Baltoro Holdings Pty Ltd (WASC Full Court, 25 September 1998, unreported), Blackman v Commonwealth (1978) 20 ACTR 33.
79 Accordingly, the critical question is whether any fact or circumstance should have alerted Adecco to any need for further inquiry as to Mr Stoker's state of health. Mr Stoker placed great reliance in this regard upon two pieces of evidence, to which he says the trial judge did not have proper or any regard (this being a point relevant to the adequacy of reasons, to which I return later). These pieces of evidence were, first, the Employment Application Form (Exhibit 2D11, Blue, 2/103), in which Mr Stoker disclosed that he had suffered from "back problems". Second, there was the Health Questionnaire filled out by Mr Stoker before he commenced work with Adecco (Exhibit Z; Blue, 1/126 apparently identical to Exhibit 2D10, Blue, 2/102). In that questionnaire he ticked the box that he had suffered in the past from "back pain or strain".
80 Both of these documents were filled out at the end of August 1999, when Mr Stoker applied to work with Adecco. I have already excerpted the relevant parts of both these documents. They give no further substantive detail of the injury apart from the approximate date and identification of his then employer. No evidence was adduced by Adecco as to what, if any, inquiries it had made as a result of these documents. The trial judge correctly stated that the only inference that is available from this is that there was nothing that could have advanced Adecco's case in relation to those matters (Red, 45G-I). The question is whether these constitute facts or circumstances that should have alerted Adecco to the need for further inquiry.
81 This case is distinct from the situation in Finn. In that case, the worker had previously had lung infections and surgery which rendered him particularly susceptible to a rare disease known as aspergillus fumigates, contracted by exposure to certain organisms which are commonly found in soils. The danger of infection to a normal person was negligible. The worker applied for employment as a school groundskeeper, answering "No" to a question on the application form querying any noteworthy disabilities. In the event, the worker contracted the disease and claimed breach of duty by the employer to make inquiries as to his state of health, and thereby breach of duty of care in guarding against the additionally serious risk which would have thereby been revealed.
82 The Full Court of the Supreme Court of Queensland reversed the verdict for the plaintiff obtained at first instance. Thomas J (with whom McPherson JA agreed and Williams J generally concurred) held that there was no duty on the employer to further interrogate the employee, having received the answer "No" to their initial inquiry. It is important to appreciate the significance of the "No" answer in conjunction with the common assumption of both worker and employer that he was fit for the type of work contemplated.
83 In the present case, Adecco did not receive a "No" answer to the inquiries made on the papers. In fact, the Employment Application disclosed "back problems" and the Health Questionnaire provided further details regarding the place and time of previous back injury, and the name of the employer at the relevant time. It may be that the responses given did not by any means provide full or frank disclosure. But the relevant question as formulated in Finn and Bailey (supra) is whether there is any fact or circumstance which should have alerted a reasonable employer to any need for special further inquiry into the medical condition of the worker. The proclaimed purpose of the Health Questionnaire was "to assist us in placing you in assignments that you are capable of efficiently and safely carrying out" (Blue, 2/102). What would be the point of requesting the particulars of work-related injuries if not to enable inquiry to be made where possible? In these circumstances, it is difficult to accept that there was no fact or circumstance which would put a reasonable employer on notice of the need for further inquiry. If that were so, one might be tempted rhetorically to ask whether a duty to make further inquiries will only arise where the applicant arrives for his job interview with a neck-brace and walking-stick.
84 I therefore conclude that Adecco should have been alerted to the need for further inquiry as to Mr Stoker's medical history. That, however, is not the end of the matter. It must not be forgotten that the principle arising out of Paris v Stepney Borough Council applies to the question of what level of risk is reasonably to be anticipated by an employer having knowledge of the worker's condition. It does not relieve the appellant as plaintiff of demonstrating that the system of work did contain an unreasonable risk for a person with his or her characteristics. The failure to make inquiries does not automatically mean that the employer has breached its common law duty of care to the employee. That result would only follow where the inquiries would have revealed to the reasonably prudent employer such information as would have prompted it to conclude that the risk to the particular employee was such that it was unreasonable to require him to perform the particular task in question.
85 In this case, what would inquiry have revealed? Mr Kennedy of counsel for Mr Stoker submitted that had Adecco made proper inquiry it probably would have ascertained that he had a degenerative state in his spine that was susceptible to injury and disability. It should be noted in this respect that Mr Stoker conceded in cross-examination that he was, naturally enough, concerned not to be too forthcoming about previous back problems lest that prejudice him in obtaining jobs with various host employers that Adecco might place him with (Black, 110C-F). Nevertheless, since it does not appear that inquiry was made and assuming in favour of Mr Stoker that all currently available medical information would have been disclosed, Adecco would have known:
(a) Dr Stewart's report of 8 October 1997, that at L4/5 there is minimal disc bulging and narrowing of both posterior joints, whereas at L5/S1 there are gaps between the discs indicating it was degenerate, as well as annular bulging with a more localised central protrusion posteriorly (Blue, 1/50).
(b) Dr Markell's report of 2 October 1997 that there is evidence of degeneration at the L5/S1 disc (Blue, 1/90).
(c) Dr Stening's reports of 3 November 1997, 3 December 1997 and 4 March 1998 (Blue, 1/61-63). In the first report, Dr Stening diagnosed a broad calcified L5/S1 disc protrusion towards the right and a milder such protrusion at the L4/5 level and recommended Mr Stoker to continue on light duties at work. The second report recommended physiotherapy noting that the symptoms had eased somewhat but Mr Stoker still got tight in his back and got cramps in his right leg when he performed the heavy work he was currently doing. In the third report, Dr Stening noted that Mr Stoker was currently pain-free, but apart from 3 days off the previous month he was trying to continue with light duties at unreduced hours.
(d) Active Physiotherapy report of 15 January 1998 (Blue, 1/84-5), disclosing that Mr Stoker initially complained of a central dull ache with occasional right lateral thigh pain, the aggravating factor for which was bending and a direct turn into upright standing. The report stated that although he was feeling some improvement, Mr Stoker finds it difficult to avoid lifting or bending at work.
(e) Mr Stoker was certified by the doctor as fit for full duties about 4 or 5 months after the September 1997 incident (I deliberately leave aside the vexed question of whether Mr Stoker in fact returned to heavy duties).
86 That information is consistent with the existence of a degenerative spinal condition and perhaps by inference susceptibility to back pain and injury, but also with the fact that such a condition had not hitherto prevented Mr Stoker from working full duties as a trades assistant in the construction industry. Furthermore, nothing would have appeared as to the seriousness of the degenerative spinal condition, or its current prognosis. Common sense tells that it is of the nature of degenerative spinal conditions to worsen over time, but that does not of itself suggest what level of work the person is safely capable of nor provide any insight as to particular risk factors or how serious those risk factors were. That knowledge in and of itself certainly does not determine the question of whether it was unreasonable of Adecco, cognisant of his greater risk, to assign to Mr Stoker the task of operating the hoist, or whether Adecco should have taken some reasonable steps which would have guarded against the risk.
87 The real question is whether this job of operating this hoist contained an unreasonable risk of injury to a person with a back problem. It is at this point that Mr Stoker's claim again confronts what is to my mind the overarching difficulty with his claim and the present appeal. Common sense aside, there is just insufficient evidence for the Court to make the necessary finding upon which negligence is predicated. I have already considered the evidence with respect to the weight of the operation and the value of Mr Brincat's evidence. I have found the trial judge was right to reject the evidence of Mr Brincat insofar as he asserted that Mr Stoker may not have had the physical attributes to operate the hoist. I need not further repeat my earlier remarks on that issue. Mr Stoker relied upon the opinion of Dr Middleton of 12 March 2001 (Blue, 1/36N, 39U-Y) as expert evidence that the sort of task involved with the operation of the hoist could result in aggravation of a pre-existing degenerative spinal condition. That opinion, even if accepted (and I note that it is inconsistent with the opinion of Dr Innes-Brown (Blue, 2/11S-V)) does not answer the question, though it may be relevant to causation and foreseeability.
88 It is of course trite law that the existence of a reasonably foreseeable risk though necessary, is not determinative of negligence. There is simply no evidence to suggest that the kick-plate and chain operation was one such that it would be unreasonable for an employer to require a worker in the position of Mr Stoker to perform it. How can the response of the reasonable employer be ascertained in accordance with the calculus in Wyong Shire Council v Shirt (supra) at 47-8? That is to say, how can the magnitude of the risk or the degree of probability of its occurrence be assessed in relation to the particular task, let alone all the other relevant factors?
89 Even if Adecco were entirely cognisant of Mr Stoker's condition and symptomatology, nothing appears from the medical evidence or any other evidence to substantiate Mr Stoker's claim that it was unreasonable to expose a person with a degenerative back problem to this risk of injury in this task. This is so whether the particular risk is conceived as a pure risk of back injury or the risk of making an asymptomatic pre-existing condition becoming symptomatic. Furthermore, I am not prepared as a matter of common sense and without further evidence to draw the conclusion that the particular employment of operating the hoist was unsafe for Mr Stoker.
90 In reaching this conclusion, I am mindful of the principle expressed in a number of decisions that an employer is not bound to refuse to employ a person particularly susceptible to a specific risk of the employment just because it does not believe it is in the person's best interests: Withers v Perry Chain Co Ltd [1961] 1 WLR 1314 (per Sellers LJ at 1317 and per Devlin LJ at 1320); Uehlin v Standard Telephones & Cables Pty Ltd (1963) 80 WN (NSW) 1600 (per Sugerman J at 1602-3, with whom Else-Mitchell and Taylor JJ agreed). The absence of duty is based on the principle that the employee knows of the risk and made his or her own choice. Although that principle is not strictly applicable here, it is relevant to note that, in applying to work for Adecco, Mr Stoker was holding himself out as willing and able to perform the jobs of a rigger and dogman. Both were roles which common-sense would tell involve certain physical demands. Further, for what it is worth, Mr Stoker did not protest the task to which he was assigned or complain that he was not fit to perform it.
91 It follows from the foregoing, that the trial judge was not in error in holding that Adecco did not breach its duty of care. The evidence did not establish that Mr Stoker was unfit to carry out work other than light duty work not involving stress to his lumbar spine or that he was physically unfit to operate the hoist on the construction site. In particular, it did not establish that it was unreasonable for the employer to have allowed him to be assigned to the task of operating the hoist. For these reasons, this part of Mr Stoker's claim must also fail. Consequently, although the trial judge did not really deal adequately with this part of the claim, it would nevertheless be futile to order a new trial.
92 I should add that given this conclusion, it is not strictly necessary to examine the trial judge's apparent finding on causation, namely, that Mr Stoker's ailments were caused by the pre-existing lumbar spondylosis rather than by any work-related injury. As I read the judgment of the trial judge, that finding was not a central plank in his reasoning, being merely tacked on after his conclusion rejecting breach of duty. I express no concluded opinion on this issue, merely that it would appear to have been open to the trial judge to accept the evidence of Dr Innes-Brown as to the causative effect of the hoist incident on Mr Stoker. Certainly the report of Dr Innes-Brown was relied upon by Adecco as effecting the disentanglement mandated by Purkess v Crittenden (supra).