Thorley v GIO Australia Ltd and AMP Services Ltd

Court of Appeal (NSW)|2005-06-27|Before: Hodgson JA, Mr P

Introduction 3 This is an appeal from a judgment of her Honour Judge Quirk of the District Court for the respondents in an action brought by the appellant seeking damages in respect of injury to her back. 4 Two defendants were named in the action being serial employers of the appellant in, essentially, the same business. They were represented by the same solicitor and counsel at the trial. This was also the position on the appeal. It would appear that no distinction was drawn between the respondents at the trial so far as liability was concerned. 5 The claim was based on an allegation of frank injury on 13 February 2001, when the appellant was employed by the first respondent and also an allegation based upon the "nature and conditions of employment" from 22 November 1998 to 27 November 2001, the appellant having commenced to be employed by the second respondent from 19 January 2001. 6 In these circumstances particular findings might have given rise to some difficulty, however, they were not made and, having regard to my view of this Appeal, it is unnecessary, except as a matter of history, to distinguish between the respondents. 7 It is convenient to deal with one other preliminary matter. 8 The Judge dealt with the claim on the basis that the frank injury did occur when the appellant removed a computer bag and its contents from the boot of a car. She dealt with the nature and conditions claim on the basis of an allegation of repeated placing and subsequent removal of the bag from the boot. 9 Ms Norton of Senior Counsel, who appeared with Mr Khandar of Counsel for the appellant, assumed in address that the allegation of nature and conditions included the repeated carrying of the bag in one hand up and down a flight of stairs. 10 That matter was referred to in the report of Dr Adams, an expert witness, however, it was not referred to in the Judge's detailed judgment. 11 The addresses were not before the Court. No attempt was made to present evidence to support the raising of the relevant matter in address. There was no agreement that it had been raised. 12 In my view the Court should proceed on the basis that the issue was not raised. Where an appellant wishes to rely upon an issue not dealt with in the judgment it is for the appellant to establish that that issue or matter was appropriately brought forward for decision.

The Circumstances 13 The appellant is now 52 years old. She had an excellent work history working for financial institutions and insurance companies. In 1986 she commenced to work for the employer as branch manager at a small branch in Crows Nest. In about 1998 she was appointed a business insurance underwriting representative in which job she sold insurance policies to businesses including public liability and workers' compensation insurance. 14 The work involved spending four out of five days travelling by car to meet clients, inspect premises and perform related duties. Until January 2001 she used a company provided Toyota Camry and thereafter a Mercedes, being her husband's company car, for the use of which she was paid a car allowance. 15 Prior to the early 1990's the appellant used a writing pad, various forms and a pen in her work. However, at that time she was issued with a laptop computer and a printer which, together with a battery pack and cables, and some other items were stored in a soft bag about 20 inches long. Although there was some issue as to the weight of the bag and its contents the Judge found that it weighed 10.5 kilograms. 16 At the time of the issue the appellant complained to Mr Goldsmith, her manager, that the bag was too heavy. She said in evidence that he told her "… to be quiet and to shut up whingeing". She was cross-examined as to both these matters, however, Mr Goldsmith was not called and the Judge accepted her. She did, however, agree that she did not make any other complaint about the weight as the years passed. 17 The appellant was told that the computer and the bag were to be carried in the boot at all times to avoid theft. 18 After dealing with matters relating to the appellant's medical history in relation to back problems Judge Quirk said: "However, she was able to continue with her work without complaint and was able to carry the 10.5 kilogram bag on all occasions that she had to in the course of her duties."

19 Judge Quirk described the events of 12 March 2001 as follows: "On 12 March 2001 after returning home she was intending to take the laptop bag into her home to perform some work on it. There is no dispute that the insurance representatives employed by the defendants performed certain work at home. She said that when she opened the boot of the Mercedes the bag was towards the front of the boot away from the bumper bar. She bent over the boot with her arms fully stretched and lifted the bag. She said she noticed a sudden sharp pain in her back on the left hand side towards the middle."

20 Apart from a couple of attempts to return to work the appellant has been off work since that time suffering from back and psychological sequelae. 21 It is convenient to note that Judge Quirk said: "By and large I accept that the plaintiff was a truthful witness who had sustained a not insignificant injury which has caused her considerable distress and the development of a serious psychiatric condition."

The Primary Judgment 22 The judgment noted the circumstances set out above which are substantially taken from it. 23 Judge Quirk observed: "The pleadings allege that she was regularly involved in the heavy repetitive lifting and handling of client files and a laptop computer and printer in the course of her work. There was no evidence relevant to these proceedings, except historically, of the plaintiff lifting heavy client files repetitively, although she gave evidence of injuring her back on one occasion in about 1994 when lifting a box of files from the rear of a motor vehicle provided for her by the first defendant." 24 The Judge continued: "That incident is not relied upon in these proceedings, although there is quite a deal of evidence about that incident from the plaintiff and the plaintiff's expert, Dr Adams. Her case is that it was the lifting of the bag containing the laptop printer on 12 March 2001 which caused injury, although there is some very slight evidence at least in her medical case, in relation to the nature and conditions allegation." 25 Her Honour then set out the particulars of negligence alleged against both defendants in the amended statement of claim as follows: "A. Failing to provide the plaintiff with any proper or adequate mechanical or physical assistance in or about her work. B. Failing to provide the plaintiff with a proper and safe system of work. C. Requiring the plaintiff to lift and handle a heavy laptop computer and printer on a regular basis. D. Failing to devise, institute and maintain a proper and safe system of instructing the plaintiff in or about proper lifting methods and techniques. E. Failing to monitor the plaintiff's activities to see that she actually carried out proper and safe lifting methods and techniques. F. Failing to ensure that the plaintiff was provided with a lightweight computer and printer. G. Permitting or allowing the plaintiff to lift and handle her laptop computer and printer in circumstances where particularly lifting this equipment into and out of the boot of her car, she was required to bend her back and lift with her arms outstretched and twist whilst so doing. H. Failing to equip the plaintiff's motor vehicle with a bracket or holding frame near to the back or side of the boot thereof so that she was not required to bend forward and reach and twist it so as to insert and remove the set equipment. I. Failing to provide the plaintiff with separate computer and printer bags. It is also alleged that the work activities prior to the 12 March contributed to her injury." 26 Judge Quirk noted that during cross-examination the appellant conceded that as a manager she had some responsibilities for dealing with staff and that, although she did not instruct her staff in safe lifting techniques, if files were to be moved in her office she would ensure that they were moved safely. 27 The appellant also agreed that she did her own shopping and that she lifted bags which ranged in weight from light to heavy from the boot of her car on regular occasions. She had never injured herself lifting. The Judge was presumably referring to such shopping. 28 The appellant also agreed that she had some knowledge of possible injuries in respect of which the businesses to which she sold insurance obtained insurance cover in respect of public liability and worker's compensation. 29 In respect of this knowledge the Judge said: "….I am not satisfied that she was an expert, but she did have certain knowledge which was perhaps higher than other members of the community." 30 The Judge noted that the appellant was unable to say whether she was aware if other representatives or insurance underwriters working for the employer complained of the weight of the bag, however, it did appear that she was the only female so employed. 31 Judge Quirk referred to cross-examination as to the appellant's medical histories as follows: "She was cross-examined about some inconsistencies in her histories to doctors particularly in respect of the affect upon her of the earlier two back injuries. Dr Conrad had a history of some grumbling, or pain or problems in her back following on the earlier injuries which the plaintiff did not accept was the history that she provided. I do not think, as I have said, that the plaintiff was a dishonest witness, but I did gain the impression that she did wish to impress the court as to the seriousness and degree of her distress and suffering following the subject injury, and I accept that probably she did have some minor symptoms from time to time arising from earlier injuries. However she was able to continue with her work without complaint and was able to carry the 10.5 kilogram bag on all occasions that she had to in the course of her duties." 32 The Judge dealt with cross-examination of the appellant as to the events of 12 March 2001 as follows: "Returning to the bag lifting incident on 12 March 2001, the plaintiff during cross-examination was asked why she did not, instead of attempting to lift the bag with her arms outstretched, slide the bag closer to her before lifting. The plaintiff said she had no answer to that question. It was put to her that 'that would have been easily done' to which she responded that she would have had to reach to grab the handle. She said that she did not recall whether there was anything between the part of the boot closest to the bumper bar and the bag itself, and agreed that the bag perhaps could have moved during the journey. When asked about her past experience in lifting with her arms outstretched or having had a back injury in connection with lifting from the boot, the plaintiff said that she thought it was within her capacity, having lifted the bag many times in the past. There is no evidence that, even if there were items in the boot which prevented her from dragging the bag before lifting it that they were items that had anything to do with the performance of her work. Indeed she gave no evidence in chief as to there being other items in the boot at the time that she lifted the bag." 33 Judge Quirk then referred to the evidence of Dr Adams, a consultant in ergonomics and occupational safety management. She noted that his report dealt with the earlier lifting incident with the files, the incident of March 2001 and the nature and conditions of the appellant's employment "that is, the requirement to lift and carry the bag on several occasions during an average day." 34 Her Honour then summarised an important aspect of Dr Adams' evidence as follows: "Dr Adams, on the description given to him by the plaintiff of the body movements that she utilised in reaching forward, estimated that the horizontal distance of her reach would have been in excess of 70 centimetres. He however concedes that a weight of 10.5 kilograms would be, by any of the currently accepted criteria through the 1990's, accepted as well within a safe lifting capacity of the average adult female; Dr Adams stated that 10.5 kilograms is comfortably below the 16 to 20 kilo limit, referred to in the National Standards and Code of Practice, as being the weight range above which a lifting task should be carefully evaluated to determine the risk of injury and establish whether some change to the system of work or equipment is warranted. However he, after acknowledging the fact, expressed the view that the fact that she consistently had to lift and carry the computer bag endowed the work with a greater risk of injury." 35 The judgment goes on: "Dr Adams suggested a number of matters that should have been undertaken by the employer and those are the matters which comprise most of the particulars of negligence to which I have referred, but essentially what is relied upon in this case in submissions is the failure of the defendant to undertake a risk evaluation of the work techniques utilised by the plaintiff, and the failure to instruct her in safe handling techniques. "

The emphasis is mine. 36 On the basis of a history by the appellant that the appellant had made many representations to her employer about "the problems she was encountering in lifting and carrying" Dr Adams thought it reasonable to expect that an evaluation should have been undertaken. However, as the Judge found there had been only one occasion on which a complaint was made. 37 Dr Adams had suggested that newer and lighter equipment could have been provided. As to this the Judge said:

"However it is undoubtedly the fact that the weight of the bag containing the equipment was comfortably below the limit to which Dr Adams referred and whilst it may have been an optimal outcome for all staff to have a lighter and more up to date set of equipment, that was not really a matter which was relied on, at least during submissions by the plaintiff's counsel as what a reasonable employer should have done in the circumstances."

38 The Judge noted and rejected the respondents' argument that the risk of injury was not foreseeable. She said: "Although it is I think a remote risk it was probably foreseeable." 39 The Judge noted the respondents' submission that: "…. a reasonable employer did not have to instruct the plaintiff particularly as to how to lift and carry a bag of the weight which the defendant's expert assumed to be nine kilograms rather than 10.5. The defendant submits that the manner of lifting the bag in the circumstances, taking into account the plaintiff's past history of back injury, her intelligence and her experience in selling insurance, 'a matter of commonsense' as was the lifting of any item, such as a bag of groceries, out of a boot." 40 She then quoted the following passage from the judgment of Mason J, as he then was, in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 41 The Judge stated the question for her determination as follows: "…I have to determine what it is that a reasonable employer should have done, given that lifting the computer bag with her arms outstretched, is the mechanism described by the plaintiff's expert as involving a risk of injury, rather than a normal lifting action, of lifting a bag out of the boot of the vehicle when it is close to the rear of the vehicle." 42 Her Honour added: "The only response to this risk suggested by the plaintiff is that the employer should have had a risk analysis performed and have instructed her in safe handling techniques." 43 It is convenient to observe that whilst the particulars refer to other steps that might be taken I do not consider that there has been an effective challenge to her Honour's statement as to the proposed measures upon which, at the end of the trial, the appellant put her case. 44 Her Honour went on to say: "In considering and balancing the matters in order to establish whether the defendant has breached its duty of care in these circumstances, I have taken into account that: 1, The plaintiff is an intelligent woman with certain experience as a manager and selling worker's compensation insurance although I do not find her to be an expert in lifting techniques. 2. She had suffered a similar injury either in 1994 [or 1998] attempting to lift with arms outstretched. 3. There is no clear explanation as to why she couldn't have dragged the bag by the handles or other part of the bag towards the rear of the boot before lifting it out which would be in my view a commonsense approach to the lifting task. 4. As I have said, even if there were other items in the boot there is no suggestion that they were related to her work and no reason why an employer should anticipate that she carry other items which would prevent her from lifting the bag from a position close to her body at the rear of the boot." 45 Her Honour then said: "In all of these circumstances, unfortunately, I find that neither of the defendant's breached their duty of care to the plaintiff in failing to instruct her in safe lifting techniques. That applies to the incident on 12 March 2001 and to the allegation against both defendants in the nature of repetitive work or lifting and carrying the bag on a regular basis." 46 I think it can properly be inferred from the judgment that the Judge took the same view as to the alleged failure to evaluate the risk. 47 After considering the evidence of Dr Conrad and Dr Ellis, both of whom were qualified for the appellant, the Judge considered that the nature and conditions allegation was not borne out on the preponderance of the medical evidence. This is, clearly enough, an independent ground from the question of breach of duty and also one upon which that allegation failed.

Submissions and Disposition 48 During her address Ms Norton accepted that to succeed in the context of this case the appellant needed to show either:

(a) that the Judge had fallen into error of law, or

(b) that the conclusion she reached was unreasonable. 49 Ms Norton identified the error of law upon which she relied to be the taking into account of irrelevant matters and the failure to consider relevant matters in applying the balancing "test" required by the Shirt calculus. 50 The factors said to be irrelevant were those set out in items 1 and 2 of [44]. 51 Whilst I accept that these items are of marginal relevance I do not accept that they are irrelevant. Intelligence, at least in this context, carries the connotation of having common sense. The earlier experience could well be expected to have increased the respondent's awareness of the risk of lifting in that way and the appellant's apparent intelligence thus bore on the question whether instruction on lifting techniques was reasonably required. 52 Of more consequence is the submission that the Judge failed to consider the magnitude of the risk, as opposed to the degree of probability of its occurrence, and the claimed absence of expense, difficulty and inconvenience in taking alleviating action and of other conflicting responsibilities. 53 It is true that the Judge did not refer to these matters in terms, however, that is not to say that she did not give them the appropriate consideration in the context of the case to be decided. 54 In Maviglia v Maviglia [1999] NSWCA 188 Mason P said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them." 55 This was not an ex tempore judgment, however, the second sentence of the President's observation has clear application. 56 On the literal terms of the judgment it could be argued that the Judge only took into account the four enumerated matters. Clearly that was not the position as is best illustrated by the absence of any reference, in the enumeration, to the remoteness of the risk a matter to which the Judge attached much significance. 57 The case was conducted against a background of injury to the back. There was no evidence to suggest that the alleviating actions suggested would be of particular expense or cause particular inconvenience. They required in this case no special mention or consideration other than being factors in the calculus. As such factors they were overborne by, amongst other things, the remoteness of the risk. 58 The Judge set out the relevant passage from Shirt. Further, she expressly referred to "…. considering and balancing the matters in order to establish whether the defendant has breached its duty of care in these circumstances." 59 I am not persuaded that the Judge did not consider the relevant factors, nor do I consider that any error of law has been established. 60 In support of her submission that the conclusion of the trial judge was unreasonable Ms Norton relied, principally at least, upon the breadth of the duty of an employer (Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28), the potential seriousness of a back injury, the appellant's unawareness of the risk of lifting in the way she did as explained by Dr Adams and the absence of expense or inconvenience in giving her appropriate instruction. 61 Ms Norton referred to the appellant's evidence as follows: "Q. And in fact the earlier incident when you were lifting the box out of the boot, was precisely the same way in which you were attempting to lift the bag out of the boot with a computer in it wasn't it? By bending forward and reaching across. A. Yes, yes. Q. And because you'd hurt yourself that way, you knew to take care didn't you? A. I did believe I was taking care." 62 She then submitted: "And really I suppose the case in the end comes down to that simple point. Is that something that the employer should have explained to her? Hardly any cost involved in explaining it, she's an intelligent woman, no suggestion she was incapable of learning so really that is the small point. She basically says if I had known that that's what I should have done I would have done it but I didn't know." 63 Mr Bridge of Senior Counsel, who appeared with Mr Austron of Counsel for the respondents, emphasised that not every foreseeable risk, however remote, must be guarded against (Romeo v Conservation Commission of the Northern Territory [1998] 192 CLR 431 per Kirby J at 48 and Tame v The State of New South Wales [2002] 211 CLR 317 per McHugh J at 353). 64 He referred to the Judge's finding that the risk was very remote and drew attention to the great number of times the appellant had performed the same operation over ten years without injury. Reference had also been made to the absence of evidence of any complaints of injury by the thirty or so other representatives who used similar equipment. 65 Mr Bridge accepted that a back injury in these circumstances might be serious, but adopted the suggestion that it would not be of the catastrophic class. 66 He submitted that the appellant was engaged in what was essentially "a normal everyday task" which it was not reasonable to regard as requiring instruction or warning as to how it should be done, particularly having regard to the remote risk of injury. 67 I am not persuaded, on the evidence in the case and the submissions made, that Judge Quirk's conclusion was unreasonable. I do not think it established that she was wrong in finding a verdict for the respondents.

Other Matters 68 It is appropriate to deal shortly with two further matters, first, ground of appeal 7 reads: "The trial judge failed to appreciate the cumulative effect of lifting strains and its effect on causation as explained by Dr Neil Adams and failed to refer at all to the opinion of her treating rehabilitation experts when dismissing that part of the claim which related to nature and conditions of her employment." 69 It is true that Dr Adams in his report and evidence referred to possible injury to the back as a result of repetitive lifting strains. However, that view takes the matter no further than the passage from Dr Conrad's report which her Honour did refer to. That passage reads: "It is a well known fact that accumulative stressors on a disc such as repetitive lifting or bending can weaken that disk so that it can spontaneous (sic) rupture at a later date." 70 Her Honour then, however, noted that Dr Conrad's view was that the appellant's condition was the result of three specific frank injuries. 71 The Judge also noted that Dr Ellis did not attribute the appellant's back problems to the nature and conditions of her employment. 72 In these circumstances it is of no moment that Judge Quirk did not refer to the view of Dr Adams - not a medical practitioner - as to possibilities. Particularly is this so as Dr Adams' history was clearly wrong on important aspects and not supported by evidence on others. 73 It is true that Dr Sun, the appellant's principal rehabilitation expert did say in his report of 25 February: "I believe the nature and condition of her employment was a substantial contributory factor to her impairment." 74 However, in what sense the doctor used the phrase "the nature and conditions of her employment" is not clear. He refers to the injury of 12 March 2001 as consistent with a lumbosacral sprain resulting in recurrent low back and leg symptoms. He does not refer to repetitive lifting work or to anything similar. 75 I think it likely the doctor was merely relating the injury of 12 March 2001 to the appellant's employment. Certainly, the onus being on the appellant, it would not have been appropriate for the Judge to use this phrase as supporting a nature and conditions, as opposed to frank injury, claim. 76 This ground of appeal does not assist the appellant. 77 And second, ground of appeal 8 reads: "The trial judge failed to give any or any adequate reasons." 78 In my view the Judge did give adequate reasons for her decision (See Misfud v Campbell (1991) 21 NSWLR 725).

Proposed Orders 79 I propose that the appeal be dismissed with costs. **********

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.

CITATION: Thorley v GIO Australia Ltd and AMP Services Ltd [2005] NSWCA 209

Wyong Shire Council v Shirt (1980) 146 CLR Maviglia v Maviglia [1999] NSWCA 188 Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28 CASES CITED: Romeo v Conservation Commission of The Northern Territory [1998] 192 CLR 431 Tame v The State of New South Wales [2002] 211 CLR 317 Misfud v Campbell (1991) 21 NSWLR 725

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