Waugh v Kippen

The evidence discloses that on 7 April 1977 the appellant was engaged in welding cleats on rolled steel joists described as universal beams. Each beam was between 8.5 and 10 metres long and weighed about 310 kilograms. There were thirty beams in all and he had been occupied on the task for about three weeks. The task required each beam to be lifted by mechanical means on to two steel trestles. Each trestle was about 1.25 metres wide with the top on which the beam rested consisting of a piece of inverted angle iron, thereby presenting as small a surface as possible in contact with the beam. In order to weld the cleats on each beam it was necessary for the beam to be turned four times as it lay on the trestles. This was done by using a steel bar as a lever. The effect of turning a beam was to move it towards one side of the trestle so that it became necessary from time to time to slide the beam back towards the centre of the trestle. This was done by the appellant standing beside one end of a beam and using two hands to pull it towards him. No lifting was involved. The learned trial judge described these manoeuvres as simple tasks. He accepted evidence that levers of the type referred to in the case were in common use and that there was no need for more than one man using such a lever to turn a 10-metre long universal beam weighing 310 kilograms. The trial judge also found that the respondents' foreman, Mr. Holder, told the appellant that he could have assistance to turn the beams over; however, the parties now agree that there is no evidence to support that finding. At the same time the evidence of Mr. Sehmish, who was employed as a labourer, was to the effect that he assisted the appellant from time to time to turn the beams over and there is no reason to suppose that the appellant was not aware that he could call for assistance if he required it. With respect to the force required to slide the end of a beam across a trestle with a two-handed pull, the report of a survey made in 1980 by an ergonomics group at Surrey University in England established an acceptable limit for such a manoeuvre equivalent to a mass of 45 kilograms for a male person aged between forty-one and fifty years, with 50 kilograms as the limit for a male below forty-one years of age. The trial judge accepted the evidence of an engineer who estimated that the force employed by the appellant to slide one end of a beam across the trestle with a two-handed pull would be equivalent to a mass of 31 kilograms if the beam was supported by trestles which were placed at the same distance from each end of the beam and would range up to 36 kilograms if the trestles were so placed as to spread the weight of the beam unevenly. These estimates relate to a normal male person having no relevant disability.

The appellant testified that on 7 April 1977 he injured his back as he pulled the end of the beam towards him with both hands underneath it in order to centre the beam on the trestle. At the time of this manoeuvre the weight of the beam was distributed evenly on the two trestles, with a trestle placed about 3 feet in from each end of the beam. The trial judge accepted this evidence although he expressed doubts about the accuracy of the appellant's statement that at the time of the accident he felt a sharp pain in the lower portion of his back which he said "doubled me up with excruciating pain". However, his Honour found that, whether there was a sharp excruciating pain or a gradual onset of pain, the result was that the appellant suffered a protrusion in an already degenerate disc in his lower spine.

It is a curious feature of this case that the appellant in the course of his evidence was adamant that he did not complain of any back trouble prior to 7 April 1977. He also denied that in July 1977 he had told an acupuncturist working for the chiropractor whom he consulted that he had had sciatica for fifteen or sixteen years. The defendants called evidence to the effect that the appellant had made some complaint both to the manager and to the foreman that he suffered from "a crook back" and the contemporary records of the chiropractor were referred to to disprove the appellant's denial. It would seem that at that time the issue of damages was uppermost in the minds of the parties. The trial judge found against the appellant on both issues. In the meantime, however, the appellant relied on the evidence pointing to the respondents' knowledge that he had "a crook back" in support of both limbs of his claim.

In considering the claim in negligence, the trial judge referred to the established principles set out inRaimondo v. South Australia [1] ; Turner v. South Australia [2] ; and Wyong Shire Council v. Shirt [3] . His Honour found that the risk of injury to the appellant was foreseeable and therefore gave rise to a duty of care on the part of the respondents but that the evidence failed to establish any breach of that duty. The risk, although in the circumstances not far-fetched or fanciful, was nevertheless very slight. The appellant was an experienced boilermaker and welder, the tasks were simple tasks and if he had needed manual assistance it was readily available. All he had to do was ask.

1. (1978) 23 A.L.R. 513, at p. 518. 2. (1982) 56 A.L.J.R. 839, at p. 840; 42 A.L.R. 669, at pp. 670-671. 3. (1980) 146 C.L.R. 40, at pp. 47-48.

The Full Court was unanimous in rejecting the appellant's appeal on the issue of negligence. Recognizing the natural difficulty that the appellant faces in seeking to overturn concurrent findings of fact, his counsel placed in the forefront of his submission to this Court the fact, to which we have already referred, that the trial judge made a finding of fact that is unsupported by the evidence, namely, that the respondents' foreman told the appellant that he could have assistance to turn the beams over. It is an error which apparently was not drawn to the attention of the Full Court. Counsel for the appellant describes it as a key finding which had the effect of precluding a conclusion in favour of the appellant that the defendants failed to maintain a safe system of work in that they failed to inform the appellant of the availability of assistance. It was undoubtedly a misconception on the part of the trial judge, as counsel for the respondents now concedes, but we do not think that it falsifies the conclusion of the trial judge or of the Full Court. The respondents' factory was a small one, with five or six persons on the premises, working in easy reach of each other. Mr. Sehmish, the labourer and general rouseabout, was there to assist the appellant as required and, when he was not available, the foreman was usually in the vicinity and ready to help. It follows that, although there was no evidence that Mr. Holder actually told him that he could have assistance to turn the beams over, the effect of the evidence is that the appellant knew that assistance was available and that from time to time he actually availed himself of it.

Counsel for the appellant sought to rely upon two recent decisions of this Court in Turner v. South Australia and Castro v. Transfield (Qld) Pty. Ltd. [4] . But reference to these decisions serves to emphasize that while the principles to be applied in each case remain the same the circumstances of each case are necessarily different and render any attempt to draw a bland comparison unhelpful. In each of these cases the Court acted to restore the decision of the trial judge. In Turner it was common ground on the appeal to this Court that to attempt to lift a full drum of diesel fuel was an inherently dangerous action for one man. The Court held that the employer had failed to prescribe any system to protect a worker from that danger. Castro was a case which, as Gibbs C.J. said [5] , "involves no question of principle, but merely the application of settled principles to the facts". The worker sustained injury when he slipped and fell while carrying a very heavy oxygen bottle. The evidence showed that the worker was not aware that he was entitled to call on another worker on the site to help him and there was no evidence that the other workers were either obliged or willing to provide such assistance. The facts of each of these cases are clearly distinguishable from the present case. This is a case where the true picture of events depends on an evaluation by the trial judge of conflicting evidence, given many years after the events occurred. It is ultimately a matter of judgment whether, having regard to the very slight risk found to have existed, the respondents exercised sufficient care in the circumstances to fulfil their duty to provide a safe system of work. We are not persuaded that the trial judge was wrong in his conclusion. This makes it unnecessary for us to consider the submission advanced by counsel for the respondents that the trial judge erred in holding that the respondents were under a duty of care because his Honour relied, wrongly, on medical evidence which was not known to the respondents in coming to the conclusion that the risk of injury to the appellant was foreseeable.

1. (1983) 57 A.L.J.R. 619; 47 A.L.R. 715. 2. (1983) 57 A.L.J.R., at p. 619; 47 A.L.R., at p. 715.

The second limb of the appellant's claim centred on an alleged breach of the duty imposed on the respondents by cl. 25(1) of r. 1, the General Rule made under the Factories and Shops Act 1960 Q., as amended ("the Act"). That rule, together with cl. 25(2), read as follows:

(1) A male employee over eighteen (18) years of age shall not be permitted or allowed to lift carry or move by hand any object so heavy as to be likely to cause risk of injury.

(2) The maximum weight in kilogrammes which an employee (other than a male employee over eighteen (18) years of age) may be permitted or allowed to lift carry or move by hand shall be in accordance with the following table:

age males females Under 16 14 9 16 to 18 18 11.5 Over 18 16

The trial judge, construing cl. 25(1) as imposing an objective test, held that in relation to the action of sliding the beam by hand it was not "so heavy as to be likely to cause risk of injury". His Honour's decision was upheld by a majority of the Full Court.

The construction of the rule prescribed by cl. 25(1) is not without difficulty. McPherson J., with whose judgment Andrews A.C.J. agreed, was influenced by two considerations in concluding that the rule imposed an objective test in the sense that an employer, whatever his common law duties may be, is required by the rule merely to have regard to the likelihood of risk of injury to the average male employee over eighteen years of age. The first was that a breach of the rule entails liability to conviction of an offence under s. 93 of the Act. We shall return to this question later in these reasons. The second was the fact that cl. 25(2) plainly does not look to the physical condition of any particular employee. It simply prescribes the maximum weights that males up to eighteen years of age and all females may be permitted to "lift carry or move by hand". The risk of injury to a particular employee is immaterial, with the result that if a woman, who by reason of physical disability is susceptible to injury, is permitted to carry weights within the permitted maxima the employer does not offend against the provision notwithstanding the likelihood of injury.

With all respect we do not think that it is correct to allow cl. 25(2) to influence the construction of cl. 25(1). Sub-clause (2) is of a subsidiary nature and proceeds by way of setting arbitrary limits to protect the specified classes of employees. Those limits exhibit a modesty which appears to take account of the widely differing physical capacities of adolescents and females over eighteen years of age. The arbitrary character of the rule is no doubt intended to facilitate enforcement. On the other hand, sub-cl. (1) is the primary provision and must be construed in accordance with its plain terms. It covers the vast majority of tasks carried out by employees. The range of circumstances in which those tasks are carried out makes it inappropriate to prescribe an arbitrary limit. An entirely different criterion of industrial safety is postulated, namely, whether the object is so heavy as to be likely to cause risk of injury. This is a criterion the application of which will vary with the circumstances and there is no reason why one of those circumstances should not be the physical capacity or condition of the worker in question. It is true that the rule does not contain the words "to him" after the words "risk of injury", as does the English counterpart which was the subject of a decision of the House of Lords in Brown v. Allied Ironfounders Ltd. [6] . But the omission of those words cannot lead to a different construction of the rule. They are necessarily implied. The rule is not concerned with the risk of injury to a person other than the male employee over eighteen years of age who is permitted to move the heavy object.

A construction of the rule that would require an employer to have regard to the risk of injury to a particular worker finds support in the character of the Act as legislation concerned with furthering industrial safety. In that character it should be construed "so as to give the fullest relief which the fair meaning of its language will allow", to use the words of Isaacs J. in Bull v. Attorney-General (N.S.W.) [7] ; cf. also Pearce, Statutory Interpretation in Australia, 2nd ed. (1981), pp. 137-141, pars. 187-191. On the other hand, there is the consideration, to which McPherson J. referred, that a breach of cl. 25 is attended with a penal sanction. The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen [8] as follows:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [9] ; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board [10] , per Lord Porter; John Summers & Son Ltd. v. Frost [11] , per Viscount Simonds; McCarthy v. Coldair Ltd. [12] , per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. [13] ), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action. 1. (1913) 17 C.L.R. 370, at p. 384. 2. (1976) 135 C.L.R. 569, at p. 576. 3. (1935) 53 C.L.R. 563, at pp. 567-568. 4. [1951] A.C. 639, at p. 650. 5. [1955] A.C. 740, at p. 751. 6. [1951] 2 T.L.R. 1226, at pp. 1227-1228. 7. (1967) 116 C.L.R. 397.

Having regard to the dominant purpose of the Act, the meaning of cl. 25(1) is clear. The physical capacity or condition of the individual worker will be relevant in determining the likelihood of the risk of injury. Indeed, the criterion of liability being expressed in terms of "any object so heavy as to be likely to cause risk of injury" itself points away from a purely abstract application. The relevant question then becomes, in the present case, whether the appellant, being a male employee over eighteen years of age, was permitted to move an object so heavy as to be likely to cause risk of injury to him.

But of course the rule does not impose absolute liability on an employer. The proscription is in terms of "permitted or allowed". These words presuppose an awareness, actual or constructive, on the part of an employer that an employee was engaged in moving by hand an object so heavy as to be likely to cause risk of injury to him. In the case of an employee who by reason of physical incapacity is more than ordinarily susceptible to the risk of injury, liability is to be adjudged in the light of what the employer knew or ought to have known of that employee's incapacity. In Sheen v. Fields Pty. Ltd. [14] the Court considered the construction of cl. 21 of the general rule now under consideration. That rule requires an employer to provide certain eye protection where there is a likelihood of injury to the eyes of an employee. Gibbs C.J., with whom Mason, Wilson and Dawson JJ. agreed, said [15] :

The likelihood of injury must be judged in the light of the circumstances which are known, or which ought to have been known, to the employer on whom the duty is cast. It would be unreasonable to construe the rule as casting an obligation on an employer to protect his employee from the consequences of his own independent decision to adopt a dangerous method of working which is different from the method he was instructed to adopt unless the employer could reasonably be expected to foresee that the employee might act in this way. Although the circumstances in Sheen were different, the same reasoning applies in this case. It would be unreasonable to construe cl. 25(1) as casting an obligation on an employer to protect his employee from a risk of injury of which he neither knew nor ought to have known. 1. (1984) 58 A.L.J.R. 93; 51 A.L.R. 345. 2. (1984) 58 A.L.J.R., at pp. 95-96; 51 A.L.R., at p. 349.

The final question of construction of cl. 25(1) focuses on the meaning of the phrase "likely to cause risk of injury". Counsel for the appellant accepted the decision in Sheen as authority for the meaning of the phrase "likelihood of injury to the eyes of an employee". Gibbs C.J., referring to the word "likelihood", said [16] :

In the Full Court it was held that "likelihood" in cl. 21 means "something less than probability but more than a remote possibility". I would accept that view. In other words, a likelihood is "a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent": Tillmanns Butcheries Pty. Ltd. v. Australasian Meat Industry Employees' Union [17] , per Deane J. However, counsel argued that the same test should not be imported into cl. 25(1) because the reference in that clause to "risk of injury" imported a lower threshold of likelihood than would have been the case if the clause had used the phrase "likely to cause injury". We are unable to accept that submission. In our view, it is not possible to extract any significant meaning from the word "risk" that is not already comprehended by the word "injury" when used in association with the word "likely". The employer is required to protect an employee from the risk of injury by preventing a situation from occurring where such a risk is likely. If the obligation was expressed in terms which were designed to forestall a likelihood of injury it would, in our opinion, amount to precisely the same obligation. The inclusion of the word "risk" adds nothing to the clause, in the same way as the inclusion of the word "allowed" adds nothing to the word "permitted". The test accepted by a majority of the Court in Sheen [18] therefore supplies an authoritative test in the application of cl. 25(1). 1. (1984) 58 A.L.J.R., at p. 95; 51 A.L.R., at p. 348. 2. (1979) 42 F.L.R. 331, at p. 346; 27 A.L.R. 367, at p. 380. 3. (1984) 58 A.L.J.R. 93; 51 A.L.R. 345.

It remains now to apply the clause to the facts as found by the trial judge. There is no doubt that at the time of the incident on 7 April 1977 the appellant suffered from a serious back condition which rendered him highly susceptible to injury. His Honour accepted evidence that X-rays of the appellant's lumbar spine taken on 24 January 1978 showed "very gross degenerative changes in the lumbo-sacral disc". He accepted medical evidence that the incident on the day mentioned caused a protrusion in a disc that was already degenerate and susceptible to injury and that quite minor stress trauma on the spine such as bending down to tie up a shoelace could have been sufficient to cause a prolapse.

There is also no doubt that the appellant was permitted to move the beam by hand by sliding it along the trestle. The respondents knew that he performed this action from time to time. The foreman regarded it as part of the job. It is not good enough for the respondents to say that the system allowed for the appellant to obtain assistance as and when he required it. If they knew or ought to have known of the likelihood of the risk of injury then compliance with the rule obliged them to forbid the appellant to attempt to move the beam in that manner without assistance.

The critical question is what the respondents knew or ought to have known of the likelihood of the risk of injury associated with this movement. The material part of his Honour's findings in this regard is as follows:

I find that the defendants' foreman at the time a Mr. Holder was aware of at least one complaint by the plaintiff made before 7th April, 1977 of having "a crook back". I also find that Mr. John David Kippen the then manager of the defendants' factory knew that prior to 7th April, 1977, and probably not long after the plaintiff commenced work for the defendant [sic] the plaintiff had referred to having "a crook back". It is I think fair to say that Mr. Kippen did not attach any significance to that complaint which he regarded as "a once in a while thing". There is no evidence that any of the defendants' employees knew that the plaintiff had a degenerative lumbar spine and that a disc prolapse could be caused by minor trauma. Mr. Sehmish, the labourer who assisted the appellant from time to time, also gave evidence of some complaints by the appellant about his back, but since any knowledge of the appellant's condition gained by a subordinate employee is not to be imputed to the respondents the trial judge understandably made no specific findings about it. His Honour did address what we have described as the critical question in the following sentence: In my view the degree of risk of the plaintiff injuring his back in the light of the proven knowledge of the manager Mr. J. D. Kippen, the foreman Mr. Holder and a fellow employee named Sehmish was very slight. Unless this conclusion of the trial judge is to be set aside then it seems to us that the appellant must fail in his appeal on the question of breach of statutory duty. A very slight degree of risk falls short of establishing a likelihood of risk of injury sufficient to activate the rule.

We must confess to some anxiety as to whether his Honour's conclusion can be sustained. There are some passages in the evidence of Mr. Holder and Mr. Sehmish which, if taken at their face value, suggest that the respondents ought to have been aware that a significant risk of injury to the appellant was likely if he was allowed to move the beams by hand and should have forbidden him to do so. It might also be contended that a proper respect for the rule should have prompted them to ascertain the nature and extent of any disability that he may have suffered. On the other hand, we have already referred to the evidentiary difficulties faced by the trial judge, including the emphatic denial by the appellant that he had ever complained about his back and the lapse of time between the incident and the trial with consequent memory failings on the part of the respondents' witnesses. In some respects the evidence is patently unsatisfactory. These considerations placed the trial judge, even more than is usually the case, in a position of advantage in evaluating the evidence and coming to a conclusion. In all the circumstances we are not prepared to disturb that conclusion. We are fortified in that stand by the consideration of the expert evidence touching the Surrey University study and the estimate of the force applied to perform the manoeuvre in which the appellant was engaged when he suffered the injury. As we read the evidence, the proper comparison is between a force of approximately 31 kilograms exerted by the appellant and an acceptable limit for a normal male person aged from forty-one to fifty years of age of 45 kilograms. Had the appellant been a year younger the acceptable limit would have been expressed as 50 kilograms. This evidence suggests that the force employed on the task of moving the beam was so far within the acceptable range for a normal male person as to require some more cogent indication of disability than a casual reference to "a crook back" in order to alert an employer to the likelihood of a risk of injury.

The facts and issues involved in this appeal appear from the joint judgment of Gibbs C.J., Mason, Wilson and Dawson JJ. It is unnecessary that I repeat them. It is common ground that the provisions of cl. 25 of r. 1 of the General Rule made under the Factories and Shops Act 1960 Q., as amended, were applicable in respect of the appellant in his employment with the respondents. That being so, the respondents were under a statutory duty to refrain from permitting or allowing the appellant "to lift carry or move by hand any object so heavy as to be likely to cause risk of injury". I agree, for the reasons which they give, with the conclusion of the other members of the Court that the preferable construction of that requirement is that, in a case such as the present where an employee "by reason of physical incapacity is more than ordinarily susceptible to the risk of injury, liability is to be adjudged in the light of what the employer knew or ought to have known of that employee's incapacity".

Where I respectfully dissent from the decision of the other members of the Court is that it appears to me that, once one accepts that construction of cl. 25, the conclusion reached by Derrington J. in the Full Court of the Supreme Court of Queensland that the respondents were in breach of the requirements of the clause is the correct one on the evidence. I shall briefly indicate the principal matters which lead me to think that that is so.

The respondents do not challenge the finding of the learned trial judge that the appellant sustained injury which was caused by his moving the heavy steel beam on the trestle which supported it. The evidence of Mr. McDonald, a mechanical engineer and an expert in industrial safety, was to the effect that the movement of the beam by sliding involved the exertion of approximately three-quarters of the maximum force which a fit man (i.e., one without a suspect back) of the appellant's age should be permitted to exert in such an exercise in the course of his employment. It was clear from the evidence, as the learned trial judge expressly found, that the appellant's foreman (Mr. Holder) was aware that the appellant had a bad back. Mr. Holder also knew that the appellant was likely to move the steel beam on the trestle by sliding it. Indeed, he regarded that as part of the appellant's job. The manager of the respondents' firm, Mr. John Kippen, gave evidence that he knew that the appellant had complained of a "crook back" from time to time and that his reaction was to say "either to the girl in the office at the time, my father or the shop foreman, if I had known that when I employed him - when he applied for the job - we would not have employed him". In these circumstances, the effect of the evidence is that the respondents permitted or allowed the appellant, as an ordinary part of his job, to move by hand a heavy steel beam weighing more than 300 kilograms on the trestle in circumstances where their manager and their foreman both knew that he had a suspect or "crook" back. It appears to me that, in so doing, the respondents permitted or allowed the appellant to move by hand an object which, on the facts which were known or which ought to have been known to them, was "so heavy as to be likely to cause risk of injury" to him.

It follows that I would allow the appeal, set aside the judgment of the Full Court of the Supreme Court of Queensland and in lieu thereof make orders having the effect that judgment be entered in the appellant's favour in the amount of the damages assessed by the learned trial judge, namely, $73,326.31, subject to any adjustment that may be necessary to reflect the charge for workers' compensation payments already received by the appellant. It is unnecessary that I examine the question whether the appellant was also entitled to succeed against the respondents on the ground that they were in breach of the ordinary duty of care which they owed to him as their employee.