149 DAVIES AJA: I have had an opportunity to read the reasons for judgment prepared by the President. I agree in general with his Honour's observations. However I prefer to express my own views on the liability of TNT Australia Pty Limited ("TNT").
150 I prefer to leave open any issue concerning the repair of plant which it is beyond the skill and ability of the employer to carry out and which must be carried out, for example, in premises and in the course of a business over which the employer has no control. I prefer to decide the present case on the more limited facts which were established by the evidence and by the findings of the learned trial judge.
151 The facts of the present case lie between the two situations posited by Lord Reid in Davie v New Merton Board Mills Limited [1959] AC 604 at 646 where his Lordship said:
"Where, then is the line to be drawn? On the one hand it appears that an employer is liable for the negligence of an independent contractor whom he has engaged to carry out one of what have been described as his personal duties on his own premises and whose work might normally be done by the employer's own servant - at least if the negligent workmanship is discoverable by reasonable inspection. On the other hand, for the reasons which I have given, I am of opinion that he is not liable for the negligence of the manufacturer of an article which he has bought, provided that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make. That leaves a wide sphere regarding which it is unnecessary, and it would, I think, be undesirable to express any opinion here."
152 A fundamental factor to be taken into account is that expressed by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 where his Honour said at 687 - 8:
"The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."
153 Nevertheless, the duty is one of reasonable care. To recover damages from his employer, an employee who is injured as a result of the use of plant must show that there was a failure on the part of the employer to exercise reasonable care and skill in the selection, maintenance or repair of the plant. In Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121, the employee failed in his claim as negligence was not proved. At 160-1, Kirby J said:
"An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence."
154 In the present case, it was not alleged that the pallet jacks of the type which were hired from Crown Equipment Pty Limited ("Crown") were not suitable for the work they were called upon to do or that Crown was not an apparently competent and responsible supplier of such jacks. The system in place for the repair of the jacks was described by Mr D L Anderson, a team leader employed by TNT, as follows:
"Q. You say that once a week the technician from Crown would come and inspect the vehicles, what would happen?
A. They would come and do a regular service on them, grease and oil and all that sort of situation.
Q. If there was a report of a malfunction of a vehicle, what was the procedure then?
A. A call was placed with Crown for a service on a particular machine. If the problem was known we would tell the person on the other end of the phone the problem and then a service person would come out and have a look at that machine.
Q. that was in addition to the regular servicing on a weekly basis?
A. That's correct, right."
155 This arrangement was a very proper arrangement for TNT to have with Crown. However it was not of itself a sufficient arrangement to satisfy the duty which the employer TNT had to its employees. TNT had a duty to check on the quality of the maintenance and repair which Crown provided and a duty to check that complaints about pallet jacks were dealt with adequately. Its duty was to take reasonable care to ensure that the pallet jacks provided for the use of employees were in good order and condition.
156 There was no evidence from Mr Anderson, the only witness called on behalf of TNT, that he or any other appropriate person gave personal attention to the pallet jacks to ensure that they could be used with safety. The team leaders appear to have left the matter entirely to Crown.
157 Moreover, Mr Christie, the present respondent, denied that there was any system in place for instructing employees as to the safe use of the pallet jacks.
158 Mr Anderson gave this evidence:
"Q. Just concentrating on the walk behind forklifts, what procedure was adopted in respect of a new employee in terms of training them in the operation of that forklift, can you tell us?
A. There was nothing written down in as far as the training was concerned.
Q. But what in practice was done?
A. It was a verbal site thing that a new operator would be shown by the team leader concerned, how the machine went forward, reverse, stop, emergency stop, up and down and just the plain and simple basics with the machine.
Q. How long would that process go on for, can you tell us?
A. That indoctrination would probably take five to ten minutes."
159 By contrast, other training procedures were introduced after Mr Christie's accident. Handbooks were issued to employees and each operator was specifically instructed on the safety aspects of walk-behind forklifts, as the pallet jacks were called. Mr Anderson gave evidence that a system of pre-use checks was introduced that each employee was required to check each jack for the brakes, the lift up and down, the tilt forward and back, and the general safety of the jack before the employee took it away for use. Mr Anderson conceded in cross-examination that, prior to the accident, "it was just left to the individual workers to work out what to do". He said that the other procedures I mentioned were introduced after Mr Christie was injured and the Work Cover Authority became involved.
160 The evidence did not identify the cause of the malfunction in the pallet jack which made it behave in the way Mr Christie said it behaved. However, Mr Christie gave evidence that, at a time when the handle of the jack was upright, the brake should have been locked on. When he turned the switch to reverse, the jack moved backwards over his foot before he could get out of the way.
161 Mr Christie gave evidence that about a fortnight before 4 July in 1997, he had complained to Mr Anderson that the pallet jack was faulty, that it went into forward or reverse when it ought not to do so and that it was dangerous.
162 It must be conceded that the totality of Mr Christie's evidence was not entirely consistent. However, the trial Judge specifically found for Mr Christie on this point. There was adequate evidence before the trial judge to justify that finding.
163 On 4 June 1997, a serviceman attended as a result of a complaint. The serviceman noted:
"Arrived on the site to find unit is stuck in forward. Safety reverse switch has been hit breaking switch. Renewed switch and will return. Returned on 5/6/97. Carried out PMP service as per service sheet. Found unit has intermit 3rd speed, renewed damaged wiring harness + handle bushes, cleaned all pod components - adjusted directional switches, greased all pivot points, unit is now lowering slow - will return. Returned on 6/6/97 - removed battery to get at flow control valve. Renewed valve - tested all functions of unit. Renewed valve - tested for leaks. Tested all functions of unit."
164 A Crown serviceman came to the premises on 23 June 1997. He noted the complaint as being "the unit had no third speed sometimes". The serviceman could not get the machine to fault. He found a loose wire and tightened it.
165 On 4 July 1997, the day following Mr Christie's accident, a serviceman examined the pallet jack for some time. He could find no fault with the brake. He directed his attention to a complaint of intermittent third speed. After investigation, he identified a loose wire which he tightened.
166 It was not suggested at the trial that the problem of intermittent third speed had any relationship to the accident in which the plaintiff was injured. However, it is relevant that there were complaints about the machine on 4 June 1997 and a great deal of work was undertaken. There were still complaints about the machine on 23 June 1997. On 4 July 1997, a serviceman again tightened a loose wire.
167 This evidence shows that complaints were made about the pallet jack, Servicemen from Crown called and attended to the jack at TNT's premises. However, their work was not adequate to repair the fault before the accident. The trial judge found, and his finding cannot be challenged, that Crown's servicemen were negligent. Yet, no responsible person such as Mr Anderson appears to have taken any personal interest in the matter, other than passing on requests for Crown to send a technician. There were three team leaders of whom Mr Anderson was one. Mr Anderson gave no evidence that, apart from calling a serviceman, he personally troubled himself about the complaints which Mr Christie or other employees made or that he checked to see that the work that the Crown technicians did was properly done. For example, Mr Anderson said:
"We wouldn't be present when they did the service, we would just sign off."
168 In my opinion, the trial judge was entitled to find that TNT breached its duties. He expressed his finding against Manpower Services (Australia) Pty Limited in this way:
"I find that this duty of care was breached by the first defendant failing to adequately instruct and provide proper assistance to the plaintiff in the performance of his duties and failing to properly inspect, maintain and provide appropriate equipment for the plaintiff to undertake this task."
169 With respect to TNT, the trial judge expressed the same views in a slightly different way saying:
"In those circumstances notwithstanding the absence of expert evidence on the question, it is only commonsense that the second defendant should have taken steps to acquire a system of work which would have in the circumstances protected the plaintiff from the risk of injury which came home in this case from a faulty pallet jack."
170 The present is not a case where plant was sent away for repair by an ostensibly competent independent contractor in a business with which the employer TNT was not connected. In the present case, all relevant events occurred in TNT's premises and, insofar as TNT was concerned, in the course of the conduct of TNT's business. Mr Christie had complained of the fault in the pallet jack. Other employees complained of faults in the jack. Crown technicians were called and repaired or purported to repair the jack at TNT's premises. All this occurred when senior members of TNT's staff such as Mr Anderson were in a position to but did not supervise and check what was done.
171 Moreover, the senior employees of TNT failed to institute an adequate system for training employees in the handling of the machines and for the testing of the machines prior to use.
172 In my opinion, it was open to the trial judge to find as he did that TNT breached its duty of care to its employee Mr Christie.
173 I agree with the orders proposed by the President. I specifically agree with paragraph 111-119 of the President's reasons. TNT is entitled to a contractual indemnity from Crown. Moreover, Crown's culpability so outweighed that of TNT that Crown should bear sole responsibility for the injury and loss which occurred.
174 FOSTER AJA: I have had the advantage of reading, in draft, the judgments of Mason P and Davies AJA. I agree with the orders proposed by Mason P and, in general, with his Honour's reasons. As the case is a complex one, I wish to add the following remarks of my own in relation to the issue of negligence. In the circumstances, I can be fairly brief. I shall use the same abbreviations of the parties' names, as appear in his Honour's judgment.
175 It is clear that Manpower, as employer of the plaintiff, owed to him a duty of care, conventionally described as being "non-delegable". This duty was one of taking reasonable steps to provide him with equipment, which was safe for the purpose of his carrying out the tasks of his employment. In this case, the relevant equipment was, of course, the forklifts described as "pallet jacks".
176 This duty of care, so defined, was "non-delegable" in the sense that if the performance of it was transferred or delegated to another, the employer Manpower would, nevertheless, remain responsible for its proper performance by the delegate. In the present case the delegate was TNT, to which company Manpower had hired its employee, the plaintiff.
177 Manpower's duty of care to the plaintiff, in these circumstances, could not be fulfilled, simply on the basis that Manpower could reasonably regard TNT as being a reputable and skilful organisation capable of fulfilling the relevant duty of care to the plaintiff. It had the obligation of ensuring that the duty was fulfilled. It is clear that it took no such steps, with the result that if TNT failed in its duty, Manpower would also be liable to the plaintiff.
178 Although TNT was not the original employer of the plaintiff, I am satisfied that, as a matter of common sense, it should be regarded as having the same duty to the plaintiff as an employer. Although, there was no transfer of employment from Manpower to TNT, pro hac vice, TNT clearly assumed employer-like responsibilities consistent with its overall control and direction of the plaintiff in the workplace. In particular it had the responsibility of taking appropriate steps to provide the plaintiff with reasonably safe working equipment, namely the pallet jacks. Although this equipment was hired by it from Crown, on the basis that Crown would maintain and service it, this did not mean that it was absolved from its own duty of care. I am satisfied, for the reasons which are given in greater detail in the judgment of Mason P, that TNT had, in fact, the same non-delegable duty of care to the plaintiff in relation to the provision of the pallet jacks, as did Manpower.
179 The result is that TNT could not discharge its duty simply by its selection of Crown, pursuant to its agreements with Crown, as a reputable and skilful supplier, maintainer and servicer of these pieces of equipment. If Crown negligently supplied, maintained or serviced the pallet jacks supplied under its agreements with TNT for use by the plaintiff, then that negligence would, itself, constitute a relevant breach of TNT's duty of care to the plaintiff.
180 I am satisfied, also, that in addition to this secondary or derivative aspect of its duty of care, TNT, as part of its duty, had a responsibility, shared with Manpower, to, as it were, maintain a watchful eye over the work of Crown in relation to the maintenance and servicing of the equipment. This duty could not be discharged merely by "signing-off" on Crown's work in relation to the servicing of the equipment.
181 In so saying, I rely upon the following passage from the judgment of Kirby J in Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 160:
"An employer does not warrant that equipment which it supplies to employees will not in any circumstances fail, causing harm. But the employer does owe a duty of care to procure suitable equipment and then to ensure that it is inspected from time to time against reasonably detectable risks of failure or deterioration. Whatever may have been the requirement in earlier times, a continuous duty, demanding vigilance and attention to the needs of accident prevention, is now imposed by the common law upon employers, enforceable in the case of breach causing damage by an action framed in negligence."
182 It should be observed, however, that no reasonable criticism can be levelled at TNT in respect of the general procedures that it established in relation to the use by its employees, including the plaintiff, of the pallet jacks. It instituted, in accordance with its agreement with Crown, a system of weekly preventative servicing of the equipment, which was consistent with the heavy use of it in TNT's business. Each of the hired pallet jacks was inspected and serviced on a weekly basis. The evidence as to the nature of the service is by no means clearly spelt out but indicates that a performance check, together with the lubrication of appropriate working parts, was performed. In addition to these weekly routine services, there was a "call-out" procedure whereby if an individual pallet jack malfunctioned during use, it was immediately taken out of service, appropriately labelled as being out of use, and was the subject of a prompt service inspection by Crown. It seems that these inspections took place at TNT's premises. I am satisfied that these general procedures could not be criticised as inappropriate but, as I have said, were, in themselves, insufficient to discharge TNT's duty of care to the plaintiff.
183 The result is, accordingly, that if Crown were shown to be negligent in the performance of its maintenance and repair services in respect of any of the pallet jacks, resulting in the equipment becoming unsafe for use by an employee, then there would be a breach of TNT's duty of care to that employee.
184 It is, thus, a question of major importance in this appeal, whether the evidence can establish negligence on the part of Crown in relation to the maintenance and servicing of the pallet jack, which occasioned the plaintiff's injury. I shall consider this question later in these reasons.
185 Before doing so, it is convenient to consider a preliminary matter. It is clear that, after the plaintiff's accident, certain changes were made in the training of TNT's employees in the operation of the pallet jacks. Although the evidence is fairly sparse, it would appear that, prior to the accident, the training was fairly limited. The equipment was of a "walk-behind" type and, it seems, was fairly simple in its operation. It is, in my view, perfectly plain on the evidence that the plaintiff's injury was occasioned by a malfunction of the equipment, in that, whilst the operating handle was in the upright braking position, the equipment, nevertheless, slipped into reverse gear, came backwards, and ran over his foot. The plaintiff had, quite appropriately, placed the handle in the braking position. The result was not occasioned by any failure of the plaintiff to observe normal operating procedures. There is no evidence that any additional training would have prevented the accident occurring in the way that it did. Accordingly, in my opinion, any claim against TNT or Manpower based upon alleged inadequacies in the plaintiff's training, must necessarily fail.
186 I shall consider, later, whether there has been demonstrated any relevant breach by TNT, and hence of Manpower, in relation to its personal duty of overall supervision, to which I have referred above. It is convenient, at this stage, to consider whether negligence has been demonstrated on the part of Crown.
187 In submitting that no negligence has been demonstrated, counsel for TNT has relied upon principles relating to the proof of negligence, to be derived from cases of high authority such as Neill v New South Wales Fresh Food and Ice Pty Limited (1963) 108 CLR 362, Australian Iron and Steel Limited v Krstvski (1973) 128 CLR 668, Kingshott v Goodyear Tyre and Rubber Co. Australia Limited (1987) 8 NSWLR 707 and Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121. Cases in the same area, such as Piening v Wanless (1967-1968) 117 CLR 498, Mummery v Irvings Pty Limited (1956) 96 CLR 99 and Vozz v Tooth & Co Limited (1964) 112 CLR 316) are also in point.
188 These cases all raise questions as to the level and nature of proof required, where a plaintiff claims in negligence in respect of work injuries occasioned to him from the use of his employer's equipment. The same questions arise for consideration, in the present case, in the context that no evidence was given, on behalf of the plaintiff, as to the nature of the machinery of the pallet jacks or as to the precise cause of its malfunction, on the occasion of the plaintiff's accident. The question posed, in these circumstances, is whether, in the absence of such evidence, there can exist a prima facie case of negligence on the part of Crown in the maintenance and servicing of the relevant pallet jack.
189 Although the argument in favour of the finding of negligence in Crown was not put in terms of the doctrine of res ipsa loquitur, it was, nevertheless, clearly based upon inferences submitted to be capable of being drawn from established facts. To that extent, the reasoning in the res ipsa cases is in point.
190 This is especially so in light of the fact that those cases have recently received the continuing approval of the High Court in Schellenberg.
191 In Piening the plaintiff, a passenger in a car, was injured when it swerved suddenly from one side of the road to the other, left the road and overturned. There was no dispute that this was caused by a failure of the steering mechanism. It was held by the High Court that the failure of the steering mechanism, of itself, afforded no evidence of negligence. In the Supreme Court of New South Wales it had been held that the failure of the steering was an occurrence, which, within the meaning of the doctrine, bespoke negligence. Barwick CJ (at p 506) observed that the fact of the car's running off the road could "no doubt in some circumstances….provide evidence of lack of care in the management of the car", but the failure of the steering mechanism did not furnish such evidence. Even though not a usual occurrence, it did not mean that "it is more likely than not that it results from a lack of care in maintenance and, particularly in that class of maintenance which the average driver ought reasonably make or to procure." His Honour went on to say (at p 508) "If the occurrence is to provide evidence, it can only be that, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence on the part of the parties sued." Such an occurrence was "unlikely to provide evidence except in connection with machines or machinery of whose working and use the ordinary man has knowledge and experience." His Honour further observed that he did not think "that the mechanical makeup of, and forces operating on or with, the steering mechanism of a car are within such knowledge or experience."
192 Such an analysis, in the present case, could produce the result that the sudden and unexplained movement of a stationary pallet jack on a level floor might bespeak negligence on the part of those having its care and control. This available inference disappears when further facts are known such as the fact, in the present case, that the pallet jack was not only stationary but was stationary with its braking mechanism applied which, prior to its sudden movement, was, apparently, maintaining the jack in that position. In these circumstances, it is arguable that the failure of the braking system cannot lead to any inference of negligence on anyone's part, any more than could the failure of the steering mechanism in Piening.
193 Consequently, so the argument runs, the question of negligence or no negligence requires an investigation as to the nature of the braking mechanism and an explanation of the cause of its failure on the occasion of the accident. No such investigation was undertaken in the present case and no such explanation has been proffered.
194 If the case in negligence brought against Crown depended upon no more than the fact that, whilst Crown was charged with the care and maintenance of the pallet jack, it moved while its brake was engaged then, in my view, there would be a failure on the part of the plaintiff to establish against Manpower or TNT a prima facie case of breach of their duty of care. More would be needed to establish such a case.
195 Such a case would, ideally, consist of an acceptable scientific explanation of the cause of the brake failure in terms of the design and ordinary working of the equipment, coupled with proof of the manner in which the existence of the potential danger could reasonably have been discovered on ordinary routine inspection, or upon any non-routine inspection required because of signs pointing to the danger of malfunction of the braking mechanism. Again, no such evidence was offered in this case.
196 The question remains, however, whether the evidence that was given, even though falling short of the ideal, was, nevertheless, productive of an inference of negligence sufficient to require rebuttal by evidence called on behalf of the defendants. There was no evidence called by the defendants to explain the behaviour of the machine or to support its proper repair or servicing. This being so, any inference in favour of negligence, if such inference could properly be drawn in favour of the plaintiff, would necessarily be strengthened. (Jones v Dunkel, (1959) 101 CLR at 298).
197 My consideration of the evidence in the case leads me to the conclusion that it supports a prima facie inference that Crown was negligent in the maintenance and servicing of the pallet jack. My reasoning is as follows.
198 The particular malfunction which caused the plaintiff's injury was of a significantly dangerous kind. It occurred, notwithstanding that the braking system had been properly applied, through the plaintiff's placing of the control handle in the upright position. The result of the malfunction was that the machine moved in a sudden, unexpected and uncontrolled fashion which was plainly dangerous to persons in its vicinity.
199 The malfunction was especially dangerous, as it was intermittent in nature. It could thus occur in circumstances where the braking system was apparently working correctly. In the present case the plaintiff, as his Honour found, had checked the working of the braking system, through the appropriate elevation of the control handle, when he had taken the machine from the store for the purpose of doing his day's work. There was then no sign of the problem which later eventuated.
200 The particular pallet jack had a history of malfunction. The evidence in relation to this was somewhat confused. It appeared that it had displayed a propensity to move in too fast a fashion when in third gear. This had led to its being reported as defective and to its servicing by Crown. More importantly, however, as his Honour found, the plaintiff had on at least one prior occasion, close to the date of the accident, reported that the machine had, whilst the braking system was engaged, slipped into gear and moved, of its own accord, both forward and in reverse. This had led to its being serviced on 23 June by Crown, after which it was pronounced fit for use and simply but back into service.
201 The nature of this malfunction and its intermittency constituted a significant danger which, when it was reported, in my opinion, called for particular care in its diagnosis and repair. The machine was not only inefficient in its operation but was also a danger to its operator and others in its vicinity.
202 Although there was no evidence as to the precise design of the machine, there was sufficient to indicate that it was operated electrically, being powered by a battery, and that its movements were controlled through a rotating handle on the end of the control arm. In my opinion, in these circumstances, it would be within the realm of ordinary human experience to know that the flow of the energising electric current would be controlled by appropriate switching devices activated through the operator's use of the control handle. Also, although the workings of the machine were not explained in evidence, there was nothing to suggest that they were particularly complicated or would have presented any unusual problems to an ordinarily skilled serviceman.
203 Such evidence as existed relating to the cause of the malfunction is set out in the judgment of the learned trial judge and summarised in the judgment of Mason P. Mr Anderson, the relevant team leader at TNT, was present when the Crown serviceman was inspecting the pallet jack after the accident on 3 July 1997. He said, in evidence, that, to the best of his recollection, the serviceman had said that there was a problem with a micro switch in that "the charge wasn't going past the micro switch or some situation." He also observed a WorkCover inspector and the Crown serviceman conducting an inspection of the machine the day after the accident, when the same intermittency of malfunction appears to have been demonstrated. The operating handle was not operating effectively to put the machine into reverse. Mr Anderson, in describing the situation, said "They tried a couple times and it didn't happen and the third or fourth time it made contact and then it came back into reverse." Plainly the earlier servicing on 23 June had failed to locate and fix this serious malfunction.
204 It appears from the evidence that the operating handle itself was of a non-standard kind. After the accident it was removed and replaced with a standard kind of handle. It appears that the malfunctioning then ceased.
205 In my opinion, despite the absence of expert evidence, the following inferences of negligence can be drawn in favour of the plaintiff:
(a) The inspection and repair carried out by Crown on 23 June was quite inadequate, having regard to the serious nature of the reported malfunction;