Abalos v Australian Postal Commission

[1990] HCATrans 231

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S56 of 1990

B e t w e e n -

MARIA VIRGINIA ABALOS

Appellant

and

AUSTRALIAN POSTAL COMMISSION

Respondent

MASON CJ
DEANE J
DAWSON J
GAUDRON J

McHUGH J

Abalos(3) 1 9/10/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 OCTOBER 1990, AT 10.19 AM

Copyright in the High Court of Australia

MR o.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR A. BARRIE, for the appellant.

(instructed by Steve Masselos & Co)

MR D.M.J. BENNETT, QC:  May it please the Court, I appear

with my learned friend, MR P.S. JONES, for the

respondent. (instructed by the Australian

Government Solicitor)

MASON CJ:	Mr Jackson.
MR JACKSON:	Your Honours have, I think, copies of two

documents, one of which is an outline of

submissions. The other is a document which,

Your Honours, may or may not result in some

brevity. It is a summary of the trial judge's

findings with the relevant passages set out there.

MASON CJ: Yes, we have those documents. Yes.

MR JACKSON:  Your Honour, the appeal terms, it is submitted,

upon a narrow issue, which, if I might state at

first broadly, is this: it is whether the Court of

Appeal erred in setting aside the trial judge's

finding on liability in favour of the appellant and

in substituting his contrary view on that issue,

but stated more narrowly, the appellant's
contention is that the Court of Appeal was in error

in two related respects. They are, first, that that court did not give any weight to a finding

made by the trial judge; a finding which was

inherently based on seeing and hearing the

witnesses. I emphasize "seeing", because

demonstrations of methods of working were involved.

Secondly, and on the other hand, the

Court of Appeal did give weight to evidence which

the trial judge did not expressly accept and which

was contrary to the finding to which I have just

referred, which the judge did make.

Now, Your Honours, I will come in a moment if

I may to the particular findings to which I have

referred but in order to focus, as it were, the

case on that issue, may I go to the judgments for a

few moments in order to demonstrate exactly the way

in which that issue arose. Now, Your Honours, I

will do that as briefly as possible, but it will

take me a few minutes to do so.

Your Honours, the appellant was employed by

the respondent as a mail coder at the Redfern Mail

Exchange from 1974 to 1979 and the trial judge made

specific findings about the nature of the work which

she was required to perform and those findings may

be seen, first of all in summary at page 338.

Abalos(3) 2 9/10/90

Your Honours, may I perhaps say in passing, I

do not think there are any references to the trial
judge's reasons for judgment which Your Honours will

not find set out in one place or another in the

summary which I have given to Your Honours.

Your Honours, the summary of the trial judge's

finding in relation to her work is at page 338, line

5, going through to line 12 and Your Honours will

see that she:

sat in front of a machine with a centrally

located window into which letters were

machine-fed. The coding operation was

performed by the right hand on a single-handed

keyboard.

Your Honours, that is the summary; the detail commences at page 350, the last two lines on that

page, lines 25 and 26 where Her Honour adverts to the fact that she is about to go to that question

and then, Your Honours, she sets out at page 351,
commencing at line 9, and going through to

page 353, line 25, the way in which the appellant

was required to carry out her work.

And, Your Honours, the passage to which I have

just referred, with the exception of the last

paragraph of it on page 353, is contained in the
reasons for judgment of Mr Justice Meagher in the

Court of Appeal as being the description of the

work. Your Honours will see in the last paragraph

on page 353 that the trial judge refers to the fact

that:

The evidence about -

the -

working conditions was lengthy, detailed and

sometimes conflicting -

and that her summary of it is that, a summary of	it. Now, Your Honours, the appellant's case was
that she had sustained a condition of epicondylitis in both arms as a result of her work and the nature of that condition is described by the primary judge
at page 354, lines 12 to 17:

It is an inflammation of the muscular

attachments.

Your Honours, there was a conflict of evidence about the way in which epicondylitis might be

caused. That appears at the bottom of page 354,

line 22. Her Honour discusses that but she found

specifically that it was possible for the coding

Abalos(3) 9/10/90

work to cause the injury, at least in the right

arm. That appears at page 365, lines 5 to 8, where

she says:

In the circumstances I must find that it was possible for the type of work which the

plaintiff was required to perform, at least

with her right arm, to cause epicondylitis.

Now, Your Honours, may I pause at that point

to say that the plaintiff's case, as I said a

moment ago, had been that she had sustained

epicondylitis in both arms; the judge did not find

in her favour in respect of her claim relating to

the left arm and that was not further pursued on

appeal and is not now.

Could I come back then to the position

concerning the right arm and Her Honour proceeded

to find that the appellant's condition in that arm

was caused by the manner in which she carried out

her work. Her finding, in summary, or the summary

of her finding appears at page 360, line 23 through

to page 361, line 10.

Now, Your Honours, Her Honour's discussion leading to that conclusion and the intermediate

findings may be seen in a passage which commences

at page 356, line 18 and goes through to page 360,

line 22. I wanted, if I may, to direct the Court's

attention to a couple of passages on the way

through which are germane to the submissions which

I shall be making in a few moments.

Your Honours, in that regard, could I direct

the Court's attention first particularly to

page 357, line 10, in the passage which goes

through to line 24 on the same page where

Her Honour refers to the fact that there was much

evidence and that in the end she had to arrive at a

decision. And, Your Honours, one goes then to

page 358 to the judge's findings in relation to the

evidence of a Mrs Archer and Mrs Archer was a lady

who was called on behalf of the defendant and she
was one of the supervisors who had command, as it

were, of the coding operations, or a suite of

coding operations, which was approximately 30
operators during the relevant periods. Her title,

Your Honours I will not attempt to go beyond the acronym was MOCIC which is referred to in a passage

in the evidence to which I will come.

Now, Your Honours, at line 17 on page 358,

Her Honour referred to the fact that a video cassette was in evidence of Mrs Archer performing

coding operations, to the fact that:

Abalos(3) 4 9/10/90

she gave numerous demonstrations in court of

the hand movements involved in operating the

keyboard.

These demonstrations amply supported the

proposition that it was possible to depress

any of the normal combinations of keys

required ...•. without throwing out the arm.

Indeed, Mrs Archer made the operation appear extremely relaxed and simple -

and Your Honours, one goes on then to the next

page, to page 359 through to line 5, where

Her Honour said that she was -

prepared to accept, on the evidence, that if
all coders had worked with the same degree of

ease and proficiency as Mrs Archer did, the

load on the forearm muscles would almost have

certainly have been insufficient to lead to

any significant injury.

Now, Your Honours, she then proceeded, at the

bottom of the same page, page 359 line 24, to say:

The conclusion I am forced to reach in

the circumstances is that the coding operation

could, as Mrs Archer demonstrated, be

conducted with a minimum of tension on the

right forearm muscles and therefore with a

minimum risk of injury.

I would refer Your Honours to the passage going to

the end of that paragraph.

Now, Your Honours, one then comes to the

conclusion to which I have already referred at

page 360 line 23, going through to the end of that

section of the judgment on the next page.

Now, Your Honours, Her Honour then dealt with

a question of negligence, and three bases were

advanced as a foundation for a finding of

negligence and they are summarized at page 363 line

14. Your Honours will see in the passage

commencing line 14 and going through to line 19,

that the three categories of, as it were, the

system of work were alleged:

initial devising and designing -

McHUGH J: Well, could I just stop you there. One thing

that I must say, subject to hearing what Mr Bennett

says, amazes me about this case is why anybody

worried about what the initial devising was. I

would have thought that this was a case that by the time this plaintiff started working, on the judge's

Abalos(3) 9/10/90

finding, there was a foreseeable risk of injury,

she was required to work in a system which had a

foreseeable risk of injury which could have been
prevented and that was the beginning and end of the

case and it never seems to have been put.

MR JACKSON: Well, Your Honour, that really is the case, in

short, once one looks at the question of

foreseeability. Once the risk of injury was

foreseeable, it was something, in our submission,

that should not have been carried on bearing in

mind the degree of risk - should not have been

carried on without some steps being taken to

alleviate it.

McHUGH J: But the system should not have been used at all.

That is the point. You have got to now construct a

case within the system and say, "Well, it's all

right to use that system, it does expose you to

risk of injury but as long as you're constantly
supervised and taught to relax, then that's one way

of avoiding it".

MR JACKSON:  Your Honour, that is the way in which the case

has developed in the end. The reason why that

might be so perhaps appears from the bottom of.

page 337 - I am sorry, Your Honour, I have given

Your Honour the wrong reference. There is a

passage which I just cannot immediately find in the

primary judge's reasons for judgment where she

refers to the fact that the only matter that was

not in dispute essentially was whether the

appellant was employed there during the relevant

time and the - - -

McHUGH J:  I know, but I mean, they concentrated on what was

the situation back in 1961 or 1962 when the system

was first set up. What did that really have to do

with the case? The question was, at the time she

was employed to work there, was there a foreseeable

risk of injury which by the exercise of reasonable

care could have been prevented and the short answer

to that was, yes, it could have by changing the

system.

MR JACKSON:  Yes. Your Honour, I am not dissenting to what

Your Honour puts to me, with respect, however the

case really proceeded on a much narrower basis

below and I feel some obligation to proceed along

those lines.

McHUGH J:  You are probably bound to, I suppose, having

regard to the way the case has been conducted at

the previous two levels. It is surprising.

MR JACKSON:  Yes, Your Honour. What I was going to say is

this; I was referring to page 363 in the passage

Abalos(3) 6 9/10/90

at lines 14 to 19 when the system was discussed in

three categories, devising and designing,

maintenance of the coding equipment and training

and supervision. Could I just ask Your Honours to

note the way in which Her Honour put it for the
moment and that is that the system of work included

those three elements and I say that because when

one goes to what was said in the Court of Appeal

the judges in the majority there seem to have taken the view that the judge had found that there was no negligence in the system of work. That is not

right.

What she found was there was no negligence in

two aspects of it. Your Honours, they are initial

design - I am sorry. Perhaps I should say the

appellant failed on the first two bases. As to

initial design, Your Honours will see the reasons

for judgment commencing at page 363 line 20, the

first paragraph there, and going through then to

page 365 line 13, the conclusion being restated in

lines 11 , 12 and 13 on page 365.

On the issue of maintenance the appellant also

failed.	Her Honour's conclusions are page 365
lines 14 to 26.	Now, Your Honours, on the issue of

training and supervision, however, the judge found

in favour of the appellant and she found in favour

of the appellant with her conclusion, if I could go

there first - I am sorry, Your Honours. Perhaps I

should say this:  the judge's finding was this, at

page 367, about line 24, that:

Some external, expert direction is required in

order to ensure that individual operators

adopt safe working styles.

She said that that:

was not forthcoming.

Then, at the top of the next page, Her Honour made

the finding of considerable importance in the

present case, that she had already indicated her:

view that the coding operations were capable

of being carried out with a minimum risk of

injury to the coders. Mrs Archer's

demonstrations provided ample support for

this. The problem is, however, that -

her -

style was not adopted by all coders -

and -

Abalos(3) 9/10/90

Had there been proper training and supervision

for coders, given by people who had knowledge

of the relevant risk factors and the skill to

impart that information -

she was -

prepared to accept that the risk of injury

would have been minimal -

and -

Mrs Abalos would almost certainly not have

sustained her injury.

Now, Your Honours, that finding is based upon

her review of the evidence, commencing at page 366,

line 1 going through to page 367 to the end of the

page. She discusses what there was about

supervision, and so on.

The finding, at the top of page 368, between

lines 1 and 10, is, in our submission, the

important finding which was not given its proper

status by the Court of Appeal.

McHUGH J:  Is there any evidence that the plaintiff did not

adopt a relaxed posture?

MR JACKSON: Well, Your Honour, the evidence on that

appears, essentially, from the fact that the judge

said she was not able to work out, on the evidence,

precisely what posture had been adopted but she

inferred - Your Honour, I will see if I can find

the passage in just a moment. Yes, Your Honours,
the passage is at page 360, commencing about

line 8 - - -

McHUGH J: About line 19.

MR JACKSON:  Yes, Your Honour:

it ••.•. was not nearly as relaxed or fluid as

that of Mrs Archer.

Then one comes, of course, to the conclusion based on inference, which appears in the next paragraph

going on to the next page.

The primary judge had then turned to the question of foreseeability. Could I take

Your Honours, in that regard, to page 368, about

line 35, where she said:

all the ingredients necessary for a finding of

negligence ..... have been established -

Abalos(3) 9/10/90

on the top of the next page -

with the exception of the vital component of

foreaeeability.

And, Your Honours, the way in which she approached

that was to proceed through a number of steps.	The
first was that she was not satisfied:

that the general -

if I can put it that way -

state of ergonomic knowledge -

in the mid-1970s -

was such that it would have alerted ..... a

reasonably prudent employer, to the health

risks involved in repetitive work.

That appears, Your Honours, at page 369, line 5 to

line 9.

Your Honours, secondly there had been evidence

of complaints made to the employer which, to put it

shortly, the judge discounted. That appears at

page 371 lines 8 to 13; that is the summary. Her

conclusion then is lines 14 and the conclusion to

that point is lines 14 to 16. If that were the

only evidence she would have found against the
appellant on the ground of foreseeability, but she

then went to the third step and the third step was

the evidence of Professor Ferguson. Now, Your

Honours, as will appear, Professor Ferguson's

evidence was that he had been retained by the

respondent itself to investigate the working

conditions of its employees, telegraphists and

later mail sorters and then coders, the third

class, being the persons employed as the appellant

herself was and if I could.deal first, Your

Honours, with Her Honour's summary of his evidence	concerning the telegraphists, because he moved on	from that to the coders, and that appears at page
371 line 19 through to page 373 line 9 and Your
Honours, if one starts at line 19 he:

had had direct contact with this particular

defendant in the late 1960's and early 1970's.

In about 1967 he was commissioned by the

defendant, then known as the
Postmaster-General's Department, to undertake
a research project relating to physiotherapy

treatment for telegraphists' cramp.

At the bottom of the page:

Alalos(3) 9 9/10/90

This work was extended to include an examination of mail sorters -

Your Honours, I refer Your Honours to the whole of

that paragraph, going through to about line 18 on

page 372, with particular reference to:

The adverse operating postures -

in the last three lines of that paragraph and then

Your Honours, the conclusion arrived at in the

paragraph commencing at line 19 on page 372 and

the next part in the passage to which I would refer

is at page 373, commencing at line 7, the first new

paragraph on the page, where Her Honour said that:

The evidence mentioned thus far would, in

my view, probably have been sufficient to

enable an affirmative finding to be made on

the issue of foreseeability. But the matter

went further. For Professor Ferguson had

direct contact with the coding operations.

Your Honours, could I just say in relation to

Professor Ferguson's evidence, and I will come to

the evidence itself in just a moment, but if I

might go first to what is said about it in the

reasons for judgment, he was requested by the

defendant to undertake a survey of coders in the

early 1970s and he was appalled at what he

considered to be the inhumane production-line

conditions in the coding room and then she sets out

a passage from his evidence at page 373 and then,

Your Honours, going over to the bottom of page 373,

it is apparent, if one looks at the first two

questions and answers on page 374, that his view

was communicated to the respondent.

She refers to the fact, at page 374, line 29,

that no evidence was given on behalf of the

respondent on those questions and then, at

page 374, at about line 34 says:

strongly to the conclusion that the defendant	In the light of all this, the evidence points
must have been made aware, in the early 1970s,
of the risks of injury arising from adverse
postural positions adopted by the coders in
the normal course of coding operations.

She went on to say then:

It was therefore incumbent upon it to ensure,

through its training and supervision of the

coders, that these adverse postures were not

adopted. This it failed to do -

Abalos(3) 10 9/10/90

and she went on to say that:

A finding of negligence must follow.

Now, Your Honours, the reference in the

passage to which I have just referred, that is at

the bottom of page 374 to:

training and supervision -

appears clearly enough, in our submission, to be a

reference to the two passages to which I earlier

referred based upon the evidence of Mrs Archer, one

at page 359 lines 2 to 5, the other at page 368

lines 1 to 10.

Now, Your Honours, in the Court of Appeal the

judgment was overruled. The judges forming the

majority were Mr Justice Samuels and

Mr Justice Meagher and may I go first to the

reasons for judgment of Mr Justice Samuels.

Your Honours, after referring by way of

introduction, as it were, to what was said by the
primary judge in her reasons for judgment, the

significant of His Honour's reasons commence at

page 407, line 9. His Honour said that it seemed

to him that:

matters of foreseeability and of causation

have become mixed up.

Although His Honour does not set out particularly

why at that part. His Honour then went on to say

that:

the production line conditions which appalled

Professor Ferguson represented the system of

work and the designs of equipment with which

her Honour had declined to find fault, so that

neither of these components of the operation

was tainted by any breach of duty.

Your Honours, I will come back to that in just a

moment, if I may. His Honour then said:

I would be inclined to infer without more that

in those circumstances it can hardly be said

that any amount of training or supervision

would have sufficed to protect coders against

posture forced upon them by the nature of the

system of work and of the design of the

equipment allotted to them.

Now, Your Honours, the first thing we would say

about that, with respect, is that the primary judge

had not found against the appellant in respect of

Abalos(3) 11 9/10/90

the system of work. She had found against the

appellant in respect of two aspects, one being the

design and - - -

MCHUGH J: Initial design?

MR JACKSON:	Yes, Your Honour, initial design and devising of the equipment; the other had been its
maintenance and Your Honours will recall that, at page 363 where Her Honour set out, commencing at
line 14, the complaints which were made, the complaints which were made were three complaints
about the system of work, the third of them on
which she found in favour of the appellant being in
relation:

to the training and supervision of the coders.

So, Your Honours, it is not, with respect, correct to say that she had declined to find fault

with the system of work. The second feature,

Your Honours, is this - Your Honours, a similar

observation applies to the reference to the system

of work in line 19 on page 407 - but the second

submission which we would wish to make is this:

that it is inappropriate, with respect, for

His Honour to yield to the temptation to be

inclined to infer without more, as he does between

lines 15 and 17, in circumstances where there had

been a finding by the primary judge based upon

seeing a film, seeing witnesses giving

demonstrations and hearing their evidence.

Now, Your Honours, His Honour's approach in

that regard does not, with respect, sit well with,

for example, the observations of Justices Gibbs,

Jacobs and Murphy in Warren v Coombes, (1979)

142 CLR 531. Your Honours, if I could go to

page 537 where the Court refers, of course, to

passages that are well known and I would refer to

the second new paragraph on. the page, about

half-way down, the reference to what Lord Sumner

had said in SS Hontestroom v SS Sagaporack:	There is a conflict between two
principles ..... The first is that the appeal is
a rehearing ..... not "a mere matter of
discretion ..... "  The second principle -

which, of course, is important here -

is that "not to have seen the witnesses puts

appellate judges in a permanent position of

disadvantage as against the trial judge, and

unless it can be shown that he has failed to

use or has palpably misused his advantage, the

higher Court ought not to take the

Abalos(3) 12 9/10/90

responsibility of reversing conclusions so

arrived at, merely on the result of their own

comparisons and criticisms of the witnesses
and of their own view of the probabilities of

the case".

Now, Your Honours, those expressions are

particularly apposite, in our submission, to the

observation of His Honour, to which I have just

referred.

Your Honours, could I refer also to page 538

where similar observations are referred to and those

passages, of course, have been referred to on many

occasions. Your Honours, the next thing I was going

to say concerning His Honour's observations at

page 407 was this: that His Honour proceeds to say,

commencing at line 20:

But, Professor Ferguson makes the point

explicitly. He said, for example, of his

inspections of the coding room:- "I recall

also being unhappy -

I would ask Your Honours to follow the passage
through to the bottom of the page and also,

Your Honours, through to the top of the next page

and one goes through, then, to page 409, line 5 and

I wanted to, once Your Honours have seen that, make a couple of submissions about it. One is that Your

Honours will see that His Honour relies particularly upon a passage from the evidence of

Professor Ferguson at the top of page 408. Now,

Your Honours, reliance on that passage was

inappropriate, in our submission, because it was

inconsistent with the evidence which the primary

judge had accepted.

McHUGH J: Well, was it? You see, the difficulty for you is

this, is it not, that the professor's evidence was

directed to the postural positions adopted in the

normal course of coding operations, whereas

Mrs Archer's demonstrations were one off? They

were demonstrations. I mean, you might have been

able to use a relaxed position if you are just

doing it to demonstrate it for a few seconds, but

it is a different matter altogether if you are

doing it on an eight-hour shift and that is what

the professor's evidence was directed to.

MR JACKSON: Well, Your Honour, in our submission that is

not correct. Professor Ferguson's evidence did
not, in fact, go into great detail about the topic

of the effect of supervision or of the method for

whatever reason. Not much was asked of him about

it. I intend to take Your Honour to the particular

passages, but it is apparent, in our submission,

Abalos(3) 13 9/10/90

that when one does go to his evidence what one sees

is that he thought that such matters as supervision

were important, that there were some postures that

were better than others. All that one can say

about it is he does not go into much detail about

it, and it certainly does not provide really any

basis for drawing inferences from it against the
appellant in circumstances where one sees the two

findings which, with respect, seem to go a little

beyond what Your Honour has said in this respect,

Your Honour, that if one looks at page 358,

commencing at about line 17, the new paragraph on
the page, whilst in a sense what she was doing was
once off; it was once twice, three times, four

times or five times off as it were because what was

done was that the respondent showed how she

performed coding operations.

She gave demonstrations in court, and what her

demonstrations showed, or supported perhaps I

should say, as Her Honour said, was the proposition

that it was possible to do it in a particular way,

that she made it appear relaxed and simple; that

most of the experts commented on her proficiency

and fluency, and Her Honour said that she - at the

top of page 359:

was prepared to accept ..... that if all coders

had worked with the same degree of ease and

proficiency -

and so on. Now, Your Honour, that is the finding,

with respect, that one should accept and one should

not yield to the temptation to find - - -

McHUGH J:  I accept that the Court of Appeal has got to

compare these findings. It is odd that Her Honour

does not deal with the evidence of

Professor Ferguson on this aspect, and I am sure relies on her own observations.

MR JACKSON: Perhaps the reason was this, Your Honour: that

in relation to Professor Ferguson's evidence - and

Your Honour I will come to that, as I said, in just

a moment - but perhaps in relation to his evidence,

what there was was a situation where he had a view

that the system, as it were, was one that had not

been devised satisfactorily and had a number of

flaws. He did refer to the question of posture,

but he simply was not asked very much about it.

Her Honour might well have had the view that his

evidence was not evidence that was directed to the

question of posture in relation to training and

supervision in any great detail, although it was

directed to it.

Abalos(3) 14 9/10/90

DEANE J: Is there not a more basic problem with

His Honour's judgment, and that is this, that if

you say there was no finding by the trial judge of

negligence foreseeability in maintaining the

system, you cannot strike down the trial judge's

finding of the possibility of training under the

system without almost inevitably leading to a

finding of foreseeability in relation to

maintaining the system. In other words, the two

are completely interwoven with one another, I would

have thought.

MR JACKSON:  Your Honour, that is right, if I may say so, with respect.

McHUGH J: Could I just ask your clarification? I did not

think Her Honour's finding was about maintaining

the system, it was about the maintenance of the

machines.

MR JACKSON:  Your Honour, what I was going to say, with

respect, if one takes the expression "maintenance"

as meaning maintenance of the system overall,

including the manner of performance of work, then

what Your Honour says is, with respect, correct,

but that really is the error into which we

submitted His Honour fell by treating Her Honour's

finding as being a finding in relation to the

system overall as distinct from a finding of

maintenance of the machinery.

DEANE J:  I do not quite follow that. Do you say that

Her Honour does not address the question of

negligence in relation to the maintenance of the

overall system in the context of a finding that

under that overall system training could

effectively have avoided the risk of injury?

MR JACKSON: Well, Your Honour, what Her Honour does is to

say there was an overall system, as it were, in

respect of which three complaints were made.	I am
not satisfied that the first two were justified,

the third one is. What she does not deal with, or

what perhaps she does not deal with, is the

contention, the larger one that His Honour

Justice McHugh put to me early really, and that was

that the whole system should not have been

continued.

DEANE J: But that was, I probably misunderstood, part of

what Her Honour said, but it does not affect what I

put to you and that is the question of whether the
continuation of the system led to a foreseeable

risk of injury only springs to the forefront if you

strike down Her Honour's finding that within the

system, as it was continued, you could avoid the

foreseeable risk of injury by training but once you

Abalos(3) 15 9/10/90

strike down that finding the matter put to you by

Justice McHugh at the very commencement of your

argument immediately comes to centre stage.

MR JACKSON:  Yes, it does, Your Honour. I misinterpreted

what Your Honour put to me.	Your Honour said
"maintenance".	I took that to mean maintenance in

the sense of the finding but Your Honour meant

continuation of the system, yes. Yes, I agree,

Your Honour.

McHUGH J:  You see, what the trial judge has done, she

said, "This system exposes the plaintiff and others

to a foreseeable risk of injury". Now, one way

that risk could have been eliminated was by

changing the system. That case never seems to have

been put. The other way is the way Her Honour went

about it. She said, "That risk could have been

eliminated by proper supervision", and that is the

critical question.

MR JACKSON:	Yes.
McHUGH J:	Well she saw the witness.
MR JACKSON:	Your Honour, what I was going to say was~. perhaps I will check this in just a moment.
Your Honour, could I just say this, that so far
as - I had referred, I think, Your Honours, to a
passage at the top of page 408. Your Honours, it
is not apparent that the judge accepted that part
of Professor Ferguson's evidence and it appears to have been inconsistent with the evidence which she
did accept.
Your Honours, in the absence of something to indicate that she did accept that part of the
evidence it is very difficult, in our submission,
to set aside, de facto as it were, a finding which
she has made which does not involve acceptance of
it and is really contrary to it.

Your Honours, the second criticism which we

would make relates to the observation which appears

at page 408 lines 16 to 18 where it was said:

it was operating a system earlier installed

when ergonomic factors were substantially

unknown, which necessarily entailed bad

posture. The conclusion which must be drawn

from Professor Ferguson's evidence is that no

improvement in training or supervision would

have overcome the adverse effects of the

system.

Now, Your Honours, that is entirely inconsistent,

with respect, with the findings made at the two

Abalos(3) 16 9/10/90

pages to which I have earlier referred, and those

findings were ones which the trial judge whose

function, Your Honours, after all it was to find

the facts, had made after observing the evidence of

the witnesses; and Your Honours, the last passage
to which I wish to refer is this, that at the

bottom of page 408 His Honour says:

Once the conclusion is reached that the system was not unsafely devised or designed, although

inherently likely to cause injury, and was
invulnerable to improvement by additional

training or supervision.

Now, Your Honours, that is the reverse of the

finding which, in fact, was made.

Could I go then to the reasons for judgment of

Mr Justice Meagher, and if I could go first to

His Honour's conclusion which is at page 421

lines 6 to 8 where His Honour says that:

the result is that the negligence found by
her Honour was causally unrelated to the

respondent's injuries.

Your Honours, what His Honour means by that, of

course, is that it was not established that the

injury was caused by the lack of training or

supervision and that is apparent from his earlier

recitation of what had occurred.

Now, Your Honours, that conclusion, of course,

is once again entirely contrary to the two findings

to which I have earlier referred. His Honour dealt

with the issues, commencing at page 418, line 12,

where he says, "The principle question" in the

passage that goes on to page 421, line 5.

Your Honours, there are several submissions which

we wish to make in response to what His Honour

said.	The first is, Your Honours, that at
page 420, line 7, His Honour refers to some

evidence of Professor Ferguson:

"that the posture was obligated by the task".

Now, Your Honours, that is a reference to evidence

which, in our submission, is not consistent with

the findings to which I have referred.

Secondly, the same error affects the

proposition stated in the paragraph commencing at

line 11, where His Honour says:

DEANE J: What page is this, Mr Jackson?

Abalos(3) 17 9/10/90

MR JACKSON: I am sorry, Your Honour. Page 420. It is the

paragraph commencing at line 11. His Honour puts

shortly and, in one sense, very attractively the

proposition on which he relies. He says:

The first is that it is an indictment of the

system as a system. The cause of

epicondylitis is incorrect posture. Incorrect

posture was dictated by the system.

McHUGH J: Well, now, that is ambiguous, is it not, because

incorrect posture is really dictated by the

machinery and so on? You could have still had that
machinery - bad as it was - and avoided the risk of

injury.

MR JACKSON:  Your Honour, that was what the trial judge

said.

MCHUGH J: Yes.

MR JACKSON:  Your Honours, that is precisely the point I

wanted to make about it. Your Honours, the third

thing I wanted to say about this is that, if

Your Honours look at the bottom of page 420,

line 23, His Honour goes on to say:

I have not neglected the fact that the

Professor thought that supervision "is

critical". As an abstract statement, I have

no doubt that is so. Yet he did not say just

how -

it -

could have eliminated or ameliorated the

perceived risk of injury -

then His Honour goes on to say -

Indeed, he even hinted that increased

supervision would have been ineffective.	He
said: "I don't think it was possible for them
to have the close small group supervision that
is essential for effective safe operation".

Now, Your Honours, that quotation - the last three lines to which I have referred - in our submission,

takes what Professor Ferguson said out of context.

What he was saying was not that supervision was

impossible but that there were not enough

supervisors provided.

Your Honours, could I go, in that regard, to

the other volume where Professor Ferguson's

evidence is set out. The particular passage in

that regard commences at page 151 and if one

Abalos(3) 18 9/10/90

commences at line 31, the passage commences there

and goes over to the next page, about line 7.

Your Honours will see that he speaks first of all,

between lines 30 and 35, of the fact that:

I believe very strongly that supervision

is critical.

He then goes on to say in the next answer at

line 39 - to speak, first of all about the

telegraphists. He:

came to the conclusion that much of their

problems was brought about by faulty

supervision and this is not to blame the
supervisors. They weren't trained in the

skills of being supervisors. They had too

many people to supervise. They didn't have

the same continually small group structure

which is so important for effective

supervision

and so on. Her Honour said:

This was back in the sixties. You are talking

about the coders, amongst others -

and then he then said, in the last three lines on

the pages:

I meant to go on to say, I was first exposed

to that experience very intimately in the

sixties, in the early sixties and all my

investigations since, including that of the

coders, reinforces that view; certainly in

respect of the coders it would have been

impossible for the supervisors to have exerted

their functions adequately. You had thirty

women in each suite, if I can recall, in long

rows and all operating at a fast rate and I

don't think it was possible for them to have

the close small group supervision that is

essential for effective safe operation.

Your Honours, we would submit, that if one

looks at that evidence in the passage to which I

have referred, it is apparent that the witness was

not saying that it was impossible to have
appropriate supervision but that there were too
many people put together without there being enough

supervisors to give them the close, small group

supervision which was necessary. It was not a

correct inference for His Honour to draw, as he

did, at page 421 at the top of the page, that it

was really a hint that increased supervision would

have been ineffective. In our submission, it is

not that at all.

Alalos(3) 19 9/10/90

Your Honours, the short fact, in our

submission, is that the primary judge did not use

Professor Ferguson's evidence in relation to the steps which might have been taken to prevent injury but, rather, used his evidence on the question

whether injury was foreseeable. Could I, in that

regard, indicate to Your Honours the passage in Her

Honour's reasons for judgment where she deals with

Professor Ferguson's evidence; that is at page 371

line 14, going through to page 374 line 38 and

Your Honours will see that the evidence to which

the Court of Appeal referred was not evidence which

Her Honour indicates at all that she has accepted.

Now, Your Honours, I have said before that I

would take Your Honours to what are the relevant

parts of Professor Ferguson·'s evidence. May I give

Your Honours those references as quickly as possible and the passages to which I am about to

refer are, so far as we can see, the only parts of

his evidence that are germane to the present topic.

Your Honours, could I start from page 144 - - -

DEANE J:  Mr Jackson, could I interrupt you for a moment.

Justice Meagher refers to a notice of contention

resurrecting the first two alleged heads of

negligence. Where do we find that?

MR JACKSON:  I do not think one does find it in the reasons

for judgment, Your Honour.	I am sorry, in the
record.

DEANE J:  I see. Well then, where do we find the first two

alleged heads of negligence? Is that a reference

to the three matters in Justice Matthews judgment?

MR JACKSON: Yes, Your Honour. Your Honours, I was going to

refer to the passages in Professor Ferguson's

evidence. They commence at page 144, at the top of

the page, lines 1 to 30.	Now, in particular,
lines 9 to 12, the:

individual work station -

and so on -

were such that they conferred on the operator

the need to adopt postures and actions which
were predicated to cause at least discomfort,

if not more severe symptoms.

Your Honours, at page 158, is the particular

passage quoted by Her Honour in her reasons for

judgment. It is the first question and answer on

the page, lines 1 to 16. The answer commences at

line 5:

Abalos(3) 20 9/10/90

at least a proportion of the operators would

suffer muscle fatigue, discomfort ..... and even

potentially some more serious lesions -

et cetera. That is put more shortly and

emphatically at page 172, lines 15 to 21 and,

Your Honours, one goes back from there to page 149,

lines 14 to 17 where he said he did not:

believe that it was possible ..... to adopt a

balanced posture ..... the posture was obliged

by the task that was such that there had to

be - - -

DEANE J:	What page is this, Mr Jackson?
MR JACKSON:	Page 149, lines 14 to 17:

there had to be some postural instability

and ..... muscle tension.

And at page 150, commencing at line 34, is the part
which is introductory to the passage to which I had

earlier referred Your Honours. Your Honours, at

page 150, line 34, Your Honours will see that he

was asked about the years he had gone to the coding

room; he was asked were there measures:

which could have altered the system -

And then Her Honour said:

In relation to the matters you have been

talking about, the chair and the posture and

the keyboard.

He then dealt with the chair and the keyboard and

one comes on at page 151 to the commencement of the

passage to which I referred earlier going on then

to supervision and that is the passage that goes
through to the next page, page 152, line 7.

Your Honours, at page 157, in the passage

commencing at about line 22, he was asked whether

in relation to posture and so on:

do individuals vary in their response to those

influences? Do you understand me? A. Yes

indeed.

Then in the next question and answer:

A. It is quite obvious that when you have got

a row of hundreds of women doing this job at

the time and not all of them get symptoms

although they are all doing the same job,

there have to be individual differences in

Abalos(3) 21 9/10/90

their response to the tasks and the postures

that are imposed on them.

But he refers particularly, in that paragraph,

Your Honours, at line 44, to the fact that:

people who have an unskilled sort of method

are more prone, I believe, they waste their
skills, they push too hard and they use

excessive amount of action. A skilled person

uses a minimum of force and action to achieve

the result.

Now, Your Honours, in the light of that piece

of evidence, the judge was perfectly entitled, with
the other evidence, to take the view that - two

things, as it were: one, that supervision and
training was a matter of importance and might

assist in averting the potentiality of injury and,

secondly, Your Honour, it makes it difficult to say

that Professor Ferguson's evidence was not

consistent with the finding which Her Honour made.

And, Your Honours, it is that answer which

immediately precedes the top of the next page which

is the part that Her Honour specifically accepted.

Your Honours, the last passage to which I wish

to refer is at page 187 where, at lines 11 to

about 17:

adverse postures are more liable to cause

symptoms -

although even with good working postures you can

still get them.

Your Honours, those are the passages to which

I wish to refer. Our submission is that the result

of the submission which I have made before should

be that the appeal should be allowed. The

consequence would be, if we were successful, the

case would be remitted to the Court of Appeal

because there are issues raised, for example, by

the notice of contention of the other side in the

Court of Appeal which have not yet been dealt with.

MASON CJ:  Mr Jackson, Mrs Archer was called by the

defendant.	What was her evidence designed to
establish?

MR JACKSON:	Your Honour, it seemed to be designed to establish that the system of work was one which was
unlikely to have resulted in the injuries which the
plaintiff sustained.  Now, Your Honour, because
the question of the relationship between the work
and the injury complained of was one of some
importance, it may have been that it was sought to

Abalos(3) 22 9/10/90

go to other issues and that there was a proper

system of work, but the best one can say about it,

I think, is that it seemed to be designed to
provide a factual base for medical evidence about

the relationship between the condition and the work

and, on the other hand, to establish there was some

evidence of there being a proper system of work. Her evidence, Your Honour, appears in

volume II, it is the first part of the evidence.

MASON CJ: Yes.

DEANE J: If you look at page 366 line 15, you get the

impression that Her Honour saw Mrs Archer's

evidence as being concerned·with showing that the

system could be continued provided there was proper

instruction.

MR JACKSON:  Yes. Mrs Archer's evidence backfired, of

course.

DEANE J: Yes, but Mrs Archer's evidence seems to have

provided the occasion for Her Honour ignoring all

the allegations about a need to change the system

which were made in the statement of claim and

amended particulars, and diverting the question to

whether, assuming that the system was safe, if

there had been adequate instruction and

supervision, that instruction and supervision was

provided and it went off on a completely different

tact in the majority judgments in the Court of

Appeal.

MR JACKSON:  The.case apparently went on for many days, and

perhaps, as I submitted earlier, it may well have
been that the concentration on the details of the

water-lilies in the pond obscured the work as a

whole. Your Honours, those are our submissions.

MASON CJ: Thank you Mr Jackson. Yes, Mr Bennett.

MR BENNETT:  Your Honours, I hand up an outline of

submissions.

MASON CJ: Thank you.

MR BENNETT:  One could summarize the whole problem,

Your Honours, in one or two sentences by saying

this: Her Honour's initial findings characterized

the relevant negligence which she was leading

towards as being an absence of training and

supervision. The case, in other words, was here

was a system which was capable of being safe and

capable of being unsafe, and it was unsafe if you

had no training and supervision, safe if you had training and supervision, and the negligence was

Abalos(3) 23 9/10/90

the absence of training and supervision. She has

to find somewhere foreseeability, and she seeks to

find that in the evidence of a witness who put a

totally different case, his case being this was a

system as to which the initial design, and perhaps

the continuation of using that design, was so bad
that the training and supervision was not going to

cure it, but that was foreseeable.

GAUDRON J:  That is not how Her Honour put it at all. She

said the respondent knew about the risk of

repetitive work. They knew that from the

telegraphists. This was repetitive work. Then

they got complaints, and in addition to all of
that, some years earlier they had actually had the
advice of Professor Ferguson. Her Honour did not

put it on Professor Ferguson's evidence entirely at

all.

MR BENNETT:  No, Your Honour, only in reiation to

foreseeability but that approach does not fit, with respect, with what Her Honour says at the beginning of her judgment where she says the problem is the

absence of training and supervision because that is

the only one of the three bases that was found

against us so it is - - -

GAUDRON J: But it does not mean that there were not other

bases which could have been found against you.

MR BENNETT: 

But she did not, Your Honour, and they are not

pressed in this Court. All that is before
Your Honours is the correctness or otherwise of the
Court of Appeal's reversal of Her Honour's finding

on training and supervision and that is the narrow
issue and really what we are saying is that
Her Honour did not put together like and like when

she looked at the evidence for the purpose of

establishing the first part and then the evidence

for establishing the second, but that is a general

outline.  May I go through _it in a little more

detail?

The first finding and the one on which my

learned friend places great emphasis and for

different reasons on which we place great emphasis

is the finding at page 368 where, having rejected

what is said about design and having rejected what

is said about maintenance, Her Honour puts the

basis on which there was negligence and that is the

first paragraph and I know my learned friend has

taken Your Honours to it but it needs to be

stressed. She has indicated her view:

that the coding operations were capable of

being carried out with a minimum risk of

injury to the coders. Mrs Archer's

Abalos(3) 24 9/10/90

demonstrations provided ample support for

this. The problem is, however, that Mrs

Archer's easy, relaxed style was not adopted

by all coders. Had there been proper training

and supervision for coders -

et cetera -

! ..... accept that the risk of injury would

have been minimal. Mrs Abalos would almost

certainly not have sustained her injury.

This, then, provides the causal link

between the plaintiff's injury and the

defendant's breach of duty.

So, the breach of duty is the absence of

training and supervision. It is not the system.

If I could take -

GAUDRON J: But you cannot divide it out. It is all part

and parcel of the same thing. The system is a

system of work that you do in a system in which

training and supervision are absent.

McHUGH J:  It is the system that exposes her to a risk of

injury and that risk of injury could have been

eliminated in one of two ways:  (a), by redesigning

the system and that case was never put - - -

MR BENNETT:	Yes.
McHUGH J:	- - - (b), by training and supervision; teaching the workers to relax and that also would have
eliminated the risk. In a sense, that would have
changed the system, would have changed the system
as it actually operated but there is no
inconsistency in what - - -

MR BENNETT: But, Your Honour, that is not the way the

foreseeability case is then put, and that is where

the problem comes in, because having accepted all

this and having said, "but for Ferguson there is no

evidence of foreseeability", she then - - -

GAUDRON J: But Her Honour did not say, "but for Ferguson

there is no evidence of foreseeability".

MR BENNETT: Well, Your Honour, I was perhaps

oversimplifying it. May I show Your Honour the

passage?	What she says is, at page 371, line 14,
that:

It follows that if this were the only material in the case, I would have had to find

against the plaintiff on the issue of

Abalos(3) 25 9/10/90

foreseeability.	But it was not. For the last
witness ..... was ..... Ferguson	-

et cetera. It is that that gives rise to the

problem because, Her Honour having found that this

is a system which is all right if there is training

and supervision but not all right if there is not

but, at that point, no foreseeability, then looks

at further - - -

McHUGH J:  I am sorry, what the last of that, "at that

point, no - - -"?

MR BENNETT: "At that point, no foreseeability" until one

gets to Ferguson. If one leaves Ferguson out of

the case Her Honour's finding is there is a causal

link established because this is a system which

will cause injury without training and supervision;

will not cause injury if there is proper training

and supervision.

GAUDRON J: But, Mr Bennett, you are technically correct but

Professor Ferguson's evidence was not limited to the coders; it went to the telegraphists.

MR BENNETT:  I will come to what his evidence says,

Your Honour, in a moment but the point I am making

at the moment is that at the point in Her Honour's

judgment where she gets to page 371, what she has

found is a physical system which will only cause

injury if there is an absence of training and

supervision and she has also - - -

GAUDRON J: Not "which would only": a system "which would"

cause injury if there was an absence of training

and supervision. It is her only finding but she

did not find that it would "only" cause injury.

There is a logical gap. It may have been the only

case put and, therefore, it was the only case open

to her to find but she did not find it would "only"

cause injury in those circumstances.

MR BENNETT: Well, Your Honour, at page 368, line 5, she

says:

Had there been proper training and supervision

for coders, given by people who had

knowledge ..... and the skill ..... then I am

prepared to accept that the risk of injury

would have been minimal.

Mrs Abalos would almost certainly not have

sustained her injury. So, in my respectful

submission, what Her Honour is finding is, with

training and supervision everything is all right;

without training and supervision there is the

requisite risk of injury and causation and she

Abalos(3) 26 9/10/90

draws that line. And then, as she says, at

page 373, up to that point foreseeability has not
been established. She then has to find

foreseeability and she gets foreseeability from a

man who does not say that the absence of training
and supervision makes injury foreseeable but who

says, contrary to her earlier finding, the whole

system is so bad that injury is foreseeable from

the system as such and, in fact, training and

supervision would not cure it - as I will show

Your Honours in a moment. So, the foreseeability

is not being taken from a like analysis as the

other finding.

McHUGH J: But it does not have to be. All you have got to show, in this sort of case, is that the employment exposed you to a risk of injury which, by the

exercise of reasonable care, could have been
foreseen and avoided. Now, the employment exposed

her to a risk of injury from operating this system

and that risk could have been prevented in either

of two ways: one of them was training and

supervision.

MR BENNETT: But, Your Honour, that is the only relevant

way, for the purposes of this case, because the

other matters were not found against us.

McHUGH J: Well, they were not litigated.

MR BENNETT:	They were litigated but I do not have to deal with them. All I have to deal with is a finding
that there was negligence in not training and
supervising and the relation to that allegation of
negligence, on Her Honour's judgment, there is no
evidence of foreseeability because the
foreseeability relates to a different type of
negligence.  The foreseeability is that the
physical system will cause injury.  The negligence
is that absence of training and supervision will
cause injury. And, Your Honour, that is the
problem which, in my respectful submission, the
Court of Appeal correctly identified.

One can achieve it by breaking up the findings

into what they logically involve. If Your Honours

go to my outline, I have set out the first two

principal findings in 1.1. I have used consecutive

lettering ending up with (m) for various

propositions as to findings. Then in 1.2, the

finding, at page 368 that the absence of training

and supervision caused the injury, involves the two

subfindings - - -

GAUDRON J: But you are using "caused" there in one way when

it can be used in quite another context. It is not the absence of training and supervision that caused

Abalos(3) 27 9/10/90

the injury in any real sense. It is the work

system that caused the injury, but it would not

have caused it if there had been training and

supervision. Now, if you want to proceed on a

syllogistic basis, you have to write (b) somewhat

differently, do you not Mr Bennett?

MR BENNETT: Well I would, with respect, dispute that

proposition. One can have a situation where a

negative factor becomes so great as causatively to

override the significance of the positive factor.
May I give this example: there is nothing
inherently dangerous about crossing a road, but if
one crosses a road without looking, that is a very
highly dangerous activity and if a person does that
and is run over, one would say, with some accuracy,
the accident was caused by his not looking. One
would not say, in the matter of normal parlance,
the accident was caused by the dangerous activity

of crossing the road. That really is the effect of

Her Honour's findings on the pages leading up to

page 368. What she is saying is, "I have seen the

way Mrs Archer does it; that is magnificent;

there is no problem; I have compared that with the

ergonomic evidence; her arm is is horizontal; it

is easy and relaxed, and she does that with this

physical system. It is just a matter of training

and supervising people to do that as it is a matter

of telling people to look to the left and right

before crossing the road. When she is injured, it

is because she was not told how to use it properly.

It is not because the system itself has anything

inherently wrong with it. It is because what is

wrong is not showing the person the proper way of

doing it", and in that sense - - -

McHUGH J: But the system has. It is the system, as it

operates in practice, it has got an inherent defect

and exposes people to the risk of injury.

MR BENNETT:  Now that is what Professor Ferguson says and I

will come to that, Your Honour, but that is not

what Her Honour is saying at the pages up to

page 368. Her Honour is putting it more like my
example of crossing the road where there is nothing

wrong with the system as long as you look. "There

is nothing wrong with this as long as you are

trained and supervised, but there is something

wrong with it if you are not and there is something

wrong with crossing the road if you do not look."

That is the way in which Her Honour puts it and

that is what her words say. She makes the

causative finding I have taken Your Honours to at

lines 5 to 10 at page 368 and then says:

This, then, provides the causal link -

Abalos(3) 28 9/10/90

and if one goes back to page 363, the categories

she is concerned about, the categories of the

particulars of negligence which she finds are, the

third one:

those going to the training and supervision -

that is all that is found against us and the case

is that the absence of that positive is so strong

as to be the cause.

McHUGH J:	Yes I know, but that only means to say that the negligence consists in failing by proper training and supervision to eliminate a risk which the
employment exposed the plaintiff to which was as a
foreseeable risk from the employment. It was the employment which exposed her to foreseeable risk to
injury.  The negligence consisted in not
eliminating that foreseeable risk of injury.
MR BENNETT:	Your Honour that, with respect, ignores my

analogy about crossing the road. One can have a

situation where it is the negative which

constitutes the cause where - - -

McHUGH J: 

What is the negative in this particular case?

MR BENNETT: 

The absence of training and supervision.

supervise and the injury. That is what the causal
connection has got to be shown between.

McHUGH J: 

The causal connection is between the failure to

MR BENNETT: Yes, that is right, Your Honour. We accept

that.

McHUGH J: But the risk of injury is there and the

negligence consists in the failure to eliminate

that risk by this method of prevention.	It is a
compound conception.

MR BENNETT: Well, Your Honour, part of the problem is

His Honour did not approach it in the four step

order which enables that to be done. Her Honour

did not approach it by saying, "Here you have a

physical system likely to cause injury. It is

foreseeable the physical system will cause injury; it is preventable by training and supervision; it

caused it - - -

MCHUGH J: Or by redesign.

MR BENNETT:  Her Honour did not go through those four steps

and if she had done it would have been necessary to

isolate what it is that one says is the risk and

one can then characterize that as being the risk

that absence of training and supervision will cause

Abalos(3) 29 9/10/90

injury or putting it a little differently, one way

one might have put it is the risk that a

deliberately adopted posture may cause injury -
that is one way of putting it - a posture

deliberately in the sense that the worker is able

to control it and consciously adopts a particular

posture.

Now, one might characterize the risk as

saying, the risk is that the worker will

deliberately adopt a posture which causes injury,

in which case the negligence is correctly analysed

the way Her Honour put it as the failure to
supervise in a way so as to prevent that. But then
one applies the four steps to the failure to
supervise, or at least to the deliberate posture.

One does not apply it to the physical system

itself. If one does it to the physical system

itself the first 33 pages of the judgment would

have been different.

DEANE J:  Why does not one say that Professor Ferguson's

evidence made it foreseeable that this system gave

rise to a risk of injury unless something was done

about it and the evidence accepted by Her Honour

otherwise established that one of the things that

could have been done about it was instruction,

another, which Her Honour did not pursue, was no

doubt scrapping the system; but you do not require

foreseeability of the injury being caused in the
precise way in which it was caused or by the

precise act which caused it?

MR BENNETT:  No. I accept that, Your Honour. The problem

with that is that Professor Ferguson's whole thesis

is opposed to that in that it -

DEANE J: That is not so, is it, because his thesis was that

something should have been done about the system?

MR BENNETT:  Yes, but something very different to what

His Honour found should have been done.

DEANE J: Well, all I put to you was why does not one say

that Professor Ferguson's evidence established that

the system gave rise to a foreseeable risk of

injury if it were continued without something being

done to avoid the risk?

MR BENNETT: Because, Your Honour, that is not the

negligence found by Her Honour.	The negligence
found by Her Honour is - - -

DEANE J:  Is not doing what Her Honour found would have

avoided the risk.

Abalos(3) 30 9/10/90

MR BENNETT:  Yes, so the risk then is the risk of a

deliberately adopted posture causing injury.

Professor Ferguson did not regard that as a foreseeable risk. What he saw as the risk was the necessary involuntary posture that you could not do

anything about causing injury. He said, "This

system is so bad it is impossible to work it so as

not to expose yourself to the risk of injury" and

that is what he said was wrong with the system.

Now, he was talking about posture, deliberate or

non-deliberate.

DEANE J:  He said the risk of injury being caused -

foreseeable injury - was far greater than

Her Honour found in that the system itself, unless

something was done about it, would inevitably cause

the injury.

MR BENNETT:  By a totally different route, Your Honour. By

an involuntary adopted posture, by a posture one

could do nothing about as opposed to one that

training and supervision could cure.

DEANE J: Well that is really, if one adopts the Court of

Appeal's approach, what is at the crux of this case

and that is whether, when it comes to

foreseeability in an action of this nature, it is

permissible to set out on this parsing and analysis

test.

MR BENNETT:  Yes, but Your Honour, may I just apply the

four - - -

McHUGH J:  You see - I am just interrupting you - you seem

to be defining the risk at a more specific level

than is ever done, in my experience. One just

asks, is there a risk of injury which was

foreseeable? You do not ask, was there a risk of

injury which was foreseeable if you did not have

supervision? That sort of thing only goes to the

preventability issue and as Mr Justice Deane has
been putting to you, the expert evidence showed

that this system, as it operated, did have a risk

of injury. And then, the question is, was the
employer negligent in failing to eliminate it?

There might have been 20 ways it could have been

eliminated. Here, the plaintiff has relied on one

and Her Honour said that one way would have

eliminated it.

MR BENNETT:  Yes, and the evidence which needs to be

accepted in order to establish the foreseeability
negates the proposition that that would have

eliminated it. That is the problem.

McHUGH J: Well, that depends on how you read

Professor Ferguson's evidence.

Abalos(3)	31	9/10/90
MR BENNETT:	And I will come to that.	The way my learned

friend puts it is, he says that Her Honour was

entitled to reject part of Professor Ferguson's

evidence; that is the only way he can avoid that

proposition.

McHUGH J:  I know I heard him say that, but I must say

speaking for myself, I thought that

Professor Ferguson's evidence supported

Her Honour's findings, particularly the passages

at 157.

MR BENNETT:	May I take Your Honours to the passages one by one? The major answer on which I rely - I am
sorry, one starts at 144 and I am sorry this
involves some duplication of what my friend has done but we do read some of these answers
differently.

At the first answer on that page, where he

talks about the inhuman production line and so on,

at the very end of that answer, starting at line 9,

he says:

But the individual work station and design,

work station design and the details of the

desk were such that they conferred on the

operator the need to adopt postures and

actions which were predicated to cause at

least discomfort -

et cetera. Then, at line 25, coming to posture:

the posture that I complained of was partly

dictated by visual demands of the task but also by the action required of both hands.

They are the things which dictate the posture and

require it.

When one goes to page ·149, starting at line 9,

the question asked of Professor Ferguson, this is

in-chief, is:

And was it possible -

and we stress the word possible -

for the operator to adopt a correct safe work
posture in performing the work you say?

Just pausing, the examiner in-chief is clearly trying to make a case of defective design or

maintenance, not a case of absence of supervision,

and the answer is:

Abalos(3) 32 9/10/90

I am in trouble with the words "correct" and

"safe".

Q. Ignore them. A. Well, can I make a

comment then in relation to the question.

The question being, was it possible? He says:

I don't believe that it was possible for the

operator to adopt a balanced posture. In

other words, that the posture was obliged by
the task that was such that there had to be

some postural instability and therefore,

muscle tension.

Q. Could a better posture have been

adopted? ..... A. Yes, I understand what you

mean ..... it would have been possible to

improve the posture to a limited degree by

optimal adjustment of the chair and ..... the

keyboard, in relation to the size of the

operator -

et cetera -

but it would have been better ..... to have

relocated -

all physical matters, not supervision and training.

Then when one gets to the supervision and

training, that is page 151, he is asked at line 30:

Q •. What is the relevance, or otherwise, of supervision? A. I don't want to go on giving

an essay on the subject.	I believe very
strongly that supervision is critical.	My

experience of the PMGs Department of the time,

going back into the sixties -

objected to -

When I was doing my study amongst the

telegraphists in the early sixties -

that is dealing with telegraphers' cramp, which was

some other condition -

I came to the conclusion that much of their

problems was brought about by faulty

supervision, and this is not to blame the

supervisors. They weren't trained ..... They

had too many people ..... They didn't have small

groups -

et cetera. That is telegraphers. Then Her Honour

brings him back to coders, and he says:

Abalos(3) 33 9/10/90

Yes, I meant to go on to say I was first

exposed to that experience very intimately in

the sixties ..... and all my investigations
since -

That experience, incidentally, relates to the need for supervision and that problem -

including that of the coders, reinforces that

view; certainly in respect of the coders it

would have been impossible for the supervisors

to have exerted their functions adequately.

You had thirty women in each suite ..... in long

rows and all operating at a fast rate and I do

not think it was possible for them to have the

close small group supervision.

So the problem is again the design of the room is

such that you cannot have the proper supervision.

It is design again that is being complained about.

He goes on to say how he, in fact, stopped his

operations because of industrial trouble - that is

lower down that page.

Then on page 154 there is a long answer

starting at line 20 where he describes the way in

some of the photographs operators are elevating

their arms in bad ways and so on. At line 27 he

says this at the end of that answer:

On the assumption these were not posed, that

flash pictures, which took them in the process

of their actions it demonstrates fairly
frequently that they have to elevate the left

shoulder while the right is reduced.

He is not suggesting this is something people are

doing because they are not properly trained or

supervised.

Then we get to page 157 at the bottom of the

page, where he gives the answer my friend relied

on, but one needs to look at the little bits before

and after those bits my friend relied on. My

friend relied on, I think, lines 45 to 47, but if

one reads the whole answer what he says is:

It is quite obvious that when you have got a

row of hundreds of women ..... and not all of

them get symptoms although they are all doing

the same job, there have to be individual

differences in their response to the tasks and

the postures ..... There have been attempts to

predict which women will, which people will

have trouble with this sort of operation and

some people have claimed to be able to

distinguish, predict, which people will have

Abalos(3) 9/10/90

trouble, but in my opinion without any

reliability.

Just stopping there - there can be different reactions among people not only because they act

differently, but because they have different

internal physical conditions.

Body size, so long as there is sufficient

adjustability, is probably not a large factor

so that they can accommodate -

for these matters -

people in terms of size should be able to

adapt. The muscle weakness, that is to say

people who are generally of a weak

disposition, got weak muscles generally, are

probably more prone; people who have an

unskilled sort of method are more prone, I

believe, they waste their skills, they push

too hard and they use excessive amount of

action. A skilled person uses a minimum of

force and action to achieve the result, but

there have been a whole lot of factors

ascribed to the reasons why some people are

affected and others are not, but there is no

clear cut picture emerging.

It is a long way short of evidence that training

and supervision are going to solve the problem.	He
says, among a whole list of factors, the last he puts is -

people who have an unskilled sort of method

are more prone, I believe.

But there are all sorts of factors.

So, it is clear that his evidence as a whole,

we would submit, is saying that this system

dictates bad posture and training and supervision

is not something that is going to reduce that.

When he says supervision is - I think the phrase he

uses - "supervision is critical", we would submit

that is in the context of, when one reads his

evidence as a whole, a proper physical arrangement;

to make sure that a person working in a

satisfactory physical arrangement maintains proper

posture, but he is saying this is an arrangement

where that is not going to be effective.

Now, that evidence on its own might well have

established what was required but it was not the

negligence Her Honour found and it does not

establish foreseeability in relation to the case

'

Abalos(3) 35 9/10/90

Her Honour found which was the absence of training

and supervision.

Now, going back then to my submissions, I have

got to the end of page 1, and proposition 1.3 is

continuing it on the basis that Your Honours accept

what I have put about negative negligence; that it

is like the crossing of the road, it is the not

looking that causes the injury not the crossing of

the road that causes the injury and we submit that

once one characterizes it that way, as Her Honour

was entitled to do, it involved two subfindings on

foreseeability that had to be made.

One was it was foreseeable that without

adequate training and supervision there was the

requisite degree of likelihood that injury would

occur; and (2), that it was foreseeable that with
adequate training and supervision there would not

be the requisite degree of likelihood that injury

would occur because unless one makes that second

finding, one cannot find that it is negligence not

to have the training and supervision.

GAUDRON J: Well, it is precisely at that point that I think

your syllogism falls down completely because you do

not have to go to (f) at all if that case is not

put.

MR BENNETT:  No, but the case that is put is the absence of

training and supervision has caused injury.

GAUDRON J: Yes, well

MR BENNETT: Ferguson's evidence is

GAUDRON J:  You put it like that but we have been over that

ground and it is probably more accurate to say

that - put it in other terms but, yes.

MR BENNETT: Yes. Then, I have summarized

Professor Ferguson's evidence on (g), (h) and (i)	and I have already done that and all the Court of
Appeal said in the passages which Your Honours have
been taken to, and I will not take Your Honours
back to them, is that Professor Ferguson's evidence
could not provide evidence of foreseeability
because he negated causation and that is, really, a
way of saying that (g), (h) and (i), which is Ferguson's evidence taken together, do not fill the
gap that has to be filled in relation to
foreseeability and then, the alternative way we put
it - and this is the other matter that was reserved to us when the case was divided up by Your Honour
Justice Gaudron - is that even if the Court of
Appeal did not put it in the correct way, the way I
have construed them as putting it in 2.2 and put as

Abalos(3) 36 9/10/90

an alternative in 3.1, gets to the same result;

that Professor Ferguson's evidence simply does not

establish the requisite type of foreseeability.

Now, I should say a little bit about what happens if one - - -

GAUDRON J: Could I ask you, what do you call Professor

Ferguson's evidence there? Are you segmenting it

to deal with the coders?

MR BENNETT:  Your Honour, Professor Ferguson's evidence -

and I have taken Your Honours to the passages - in

my submission, establishes (g), (h) and (i).

GAUDRON J: But it establishes a bit more than that, does it

not? Professor Ferguson's evidence, given by his

reference to the telegraphists, is that repetitive
work involving muscular strain will cause a variety

of muscular injuries.

MR BENNETT: Well, Your Honour, that is not, in my

respectful submission, the way the case is being

put. That is not the negligence found

against - - -

GAUDRON J: But we are talking about the evidence now and

that was the evidence, and it was evidence to which

Her Honour the trial judge referred. She said,

"Once you had knowledge about the telegraphists" -

she referred to it on foreseeability - according to

Her Honour, "and then complaints from the coders",

said Her Honour, "but even so", she said, "there

was even much more than that".

MR BENNETT: Yes, although she rated the evidence about the

complaints as not been sufficient.

GAUDRON J: In isolation from knowledge about the

telegraphists.

MR BENNETT: But, Your Honour, one still comes back to the

negligence being found, being the absence of

training and supervision, and a finding in my

favour on the other complaints. Your Honour, one

must, in my respectful submission, come back to

that. Of course telegraphists - one cannot put it

at such a high level of generality as to put a

totally different case. It may well be, on the evidence, that a case could have been put along

these lines:  (1) it is foreseeable that repetitive

work will cause injury, and this was repetitive
work. In this case supervision would have cured it

and supervision was not applied and, therefore, one

gets the result.	But that is not the way it was
put.	It is put on the basis that the negligence is

the absence of supervision, not the design of the

Abalos(3) 37 9/10/90

system. It is not put that the system is unsafe
except in the context that the absence of training

and supervision made it negligent.

The other matter is this:  I have indicated

that my learned friend, as I respectfully submit he

must do, puts it on the basis that so much of

Professor Ferguson's evidence as said, "this was so

bad that training and supervision would not cure

it" must have been rejected for Her Honour to reach

the finding at the top of page 368.

McHUGH J:  But that depends how you read the evidence at

pages 151 and 152. You seem to say that that

evidence meant that because of the physical layout

of the suites that it was impossible to have enough

supervisors. I do not read it that way at all. I

just read it that the professor is saying that you

have got 120 women in long rows and, having regard

to the number of supervisors, it was not possible

to have effective supervision of them and,

therefore, you could not have an effective, safe

operation.

MR BENNETT: Well, Your Honour, the use of the word

"certainly", at the beginning of that page -

Your Honour suggests the qualification - he is not in that answer saying, "proper supervision would

have cured it". What he is saying is, "in any

event you couldn't have proper supervision for that

reason".

McHUGH J: But he talks about it would have been impossible

for "the" supervisors. Now, that must have be a

reference to the supervisors as they exist, however

many there were.	What were there, one in respect
of each suite?

MR BENNETT:  I think that was the evidence, yes, one MOCIC

behind each suite of 30. But, Your Honour, the

passages I have read as a whole make it clear that

what he is saying is, "this physical layout is such
that supervision is not going to help".	He goes on

to say, as an additional matter, that, in any

event, supervision could not have taken place even

if the - I mean, this must be read as meaning, even

if the machines were machines which could have been

worked safely you could not have had proper

supervision here because there were not enough
supervisors and the layout and so on did not permit
it, but that again rather negates causation. He is

not saying in that answer that proper supervision

would have solved the problem because that would

have contradicted his earlier evidence.

And his key answer, the answer to which one must keep coming back, is that on page 149, where

Abalos(3) 38 9/10/90

he gives a considered answer in response to the

precise question:

Q. And was it possible for the operator to adopt a correct safe work posture -

and the effect of the answer is, "No, it was not

possible". It is a considered answer, it is not an

accidental answer and Her Honour no where says that

she rejects that or that she only accepts part of

his evidence and, in any event, it would be

difficult to accept part of his evidence because it

is very much the whole thesis he is putting.

All the rest of his evidence, the dozens of

pages which Your Honours have not had read to you

really says, "This physical system was dreadful"

and his evidence was, "This was a bad physical

system, a physical system that would cause injury

and that was foreseeable". But he puts it in the

context that it is nothing to do with training and

supervision and yet it is that negligence which

foreseeability has to be found about on the

approach Her Honour took. And, in my respectful

submission, it is perfectly consistent with Warren

v Coombes for an appellant court to say, "We will

not read the trial judge as rejecting something in

a witness where she does not say she is rejecting

that evidence from the witness and, indeed, her

description of the witness is such as to indicate,

in general terms, that she accepts it".

Now, it is true that Her Honour never has the

magic sentence, "I accept everything

Professor Ferguson says" but her judgment, as a

whole, makes it clear that that is what she is

doing.

If Your Honours go to page 371 her whole

description of Professor Ferguson is one of, with

respect, admiration and acceptance. Starting at

line 17, on page 371, Your Honour says:

For the last witness in the plaintiff's case

was Professor David Ferguson, a man who had

already been mentioned in evidence as a

pioneer in the field of ergonomics, and as the

designer of the"unomanic" chair used by

coders.	His relevance ...•. went far beyond
that -

he had -

direct contact with this particular defendant

in the late 1960s and early 1970s. In about

1967 he was commissioned ..... to

undertake ..... telegraphists' cramp.

Abalos(3) 39 9/10/90

And that is discussed - extended to -

mail sorters ..... a number of

publications ..... addressed to the defendant -

and he refers to the articles.	Then she says, at
373, line 9:

the matter went further. For Professor

Ferguson had direct contact with the coding

operations. He was requested ..... to undertake

a survey of coders -

and he does all that, he communicated his views and

so on. Now how, reading that, can one read into Her Honour's judgment, as my learned friend says one must, I reject Professor Ferguson's evidence in

so far as he says "It is not something which a

voluntary assumption of posture can affect which

training and supervision can affect".	One simply
would not read it as rejecting that.	If one reads

his evidence as a whole, as I have indicated, it

fills the wrong gap, not the gap that is left by

the earlier of Her Honour's judgment.

The final matter I want to deal with is the

portion commencing on page 4 of my submissions,
paragraph 4, this is the approach taken in

Your Honour's book where His Honour

Mr Justice Samuels, as Your Honours recall,

criticized Her Honour for not following the four

steps recommended in Glass and McHugh and the four

steps are set out and I have lettered them from (j)

to (m) .. One starts with foreseeability, then

preventability and causation and then

reasonableness. We are only concerned with the

first three on this appeal.

But, of course, what one must do in applying those four tests is characterize the risk of injury

which one is talking about and one gets different

answers depending on what one characterizes as the
risk of injury.	Once one accepts the passage at

page 368 as laying down the universal inquiry, the
reference to the absence of training and
supervision, the risk of injury to which you are

exposed can be characterized in one of two ways.

The first is the negative way I have been putting

it and I will not repeat myself on that, that it is

the absence of training and supervision that

causes, and I have said all I want to say about

that, but there is another way of characterizing it

and that is to say that the risk is that there will

be a voluntarily assumed posture which exposes one

to a risk of injury.

Abalos(3) 40 9/10/90

Her Honour is simply not discussing

involuntarily assumed postures. If the negligence

is absence of training and supervision, something

that cannot be cured by voluntary action cannot be

something that is being talked about, it is only a

risk that voluntarily assumed postures will cause

injury.

McHUGH J: But that, as Mr Justice Deane pointed out to you,

is to make the mistake of attempting to foresee the

precise way in which the injury is caused and it is

only necessary to see that there is a risk of

injury in a general way.

MR BENNETT:  Yes, but one still has to find a risk as to

which there is foreseeability, preventability,

causation and reasonableness and, in my respectful

submission, one cannot apply one level of

generality to the foreseeability, and another level

of generality to causation. That is really the problem here. The risk of injury identified by

Her Honour is the risk that a voluntarily assumed

posture will lead to injury and if one defines it
that way, Professor Ferguson does not fill the gap

in relation to foreseeability because he does not establish that there is a risk that a voluntarily assumed posture will cause injury. Yet, that is

the only risk that is relevant if one says that

negligence is absence of training and supervision
so, we would submit, in a proper analysis of the
four-step test to Her Honour's judgment, one must

reach the opposite result.

As I say, the only way around that is to, as

my friend's submissions accept, reject part of

Professor Ferguson and she has not said she has

done that, the judgment suggests she has not done

that, and the Court of Appeal is entitled, in my

respectful submission, drawing inferences from the

judgment and the facts, to treat her as not having

done that.	Once one does that, one gets the
Court.
result. Those are my submissions, if it please the

MASON CJ: Thank you, Mr Bennett. Yes, Mr Jackson?

MR JACKSON:  Your Honours, the first submission I wish to

make is this: our learned friend's argument elides

foreseeability and preventability and the
difference between the two issues is indicated in

the judgment of Your Honour the Chief Justice in

Wyong Shire Council v Shirt, (1980) 146 CLR 40 at

page 47. That was the leading judgment in the case

and Your Honour, at page 47, in the paragraph

commencing in the middle of the page, deals with

what risks of injury are ones which are plainly

Abalos(3) 41 9/10/90

foreseeable and then goes on in the next paragraph

to say:

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 -

and that shows the two distinct issues.

Your Honours, the second thing is this: so far

as the approach taken by the Court of Appeal is

concerned, we would put our attitude to it in two

ways, really. The first is that if it be correct

that the evidence of Professor Ferguson is, in some

respects, in conflict with the finding to which I

have referred on a number of occasions, then the

Court of Appeal should not have relied upon the

evidence of Professor Ferguson in the absence of an

indication that the evidence was accepted.

Your Honours, I will come back in just a moment to two pages which make it apparent that

there was some conflict of evidence amongst the

witnesses and that the result arrived at by

Her Honour in the two passages to which I referred

was in fact the result of consideration of all the

evidence, but may I come back to that in a moment. The second thing is, however, that it is not

against the appellant.'s case and I would

correct to regard the evidence of being

refer particularly to the passage at page 157 and

also the passage at page 151 to page 152, to which

I referred earlier, and that, in our submission,

was not correctly interpreted by

Mr Justice Meagher. Your Honours, I said I would

go back to indicate where Her Honour dealt with the
evidence on the question of causation. Could I

take Your Honours to page 356 and Your Honours will

see at the last three lines on the page, she

commences to deal with the ergonomic evidence and

discusses that evidence on the next page and in

particular at line 10 and following where she

speaks of:

a wealth of evidence was given about all

aspects of the coding operations. The height of the chair was criticized, as was the width

Abalos(3) 42 9/10/90

and concavity of the backrest. The

feasibility of providing a right armrest was

mooted, as was the use of a two-handed

keyboard. The position of the keyboard was

criticized, together with the angle of its

panel and the fact that this could not be

adjusted. The hours worked by the coders -

Then she goes on to say:

I do not propose to discuss this evidence

in detail ..... The evidence was wide ranging,

detailed and conflicting.

And she expands upon that in the next paragraph and

it is then at page 358 that she comes to the

evidence of Mrs Archer and says as being

importantand then arrives at the first of the
findings, to which I earlier referred, at the top

of page 359.

Your Honour, to the extent that any evidence

given by Professor Ferguson in relation to the

matter was inconsistent with those findings, there

is not a particular reason to take the view that

Her Honour had not taken it into account in

reaching those conclusions because she is

discussing the whole of the evidence - does not

have to refer to the name of every witness in doing

so.

Your Honours, the next matter with which I

would wish to deal is this - - -

McHUGH J: Could·you just help me on this? Mrs Archer is in

court; all she has got is the keyboard and she is

sitting, I suppose, perhaps in the witness box or

on the floor of the court. She is not

demonstrating keyboarding under work conditions.

MR JACKSON:	No, but there was also a cassette of her evidence. That is at page 358, line 17.
Mc HUGH	J:	Yes .

MR JACKSON:  And, Your Honour, I have not gone to

Mrs Archer's evidence, but if Your Honour looks

through the evidence you will see that she was both

examined and cross-examined and invited to perform

various functions while doing it and Your Honour

will see that in the course of it counsel and

Her Honour have attempted to paraphrase what she is

doing, as one might expect to happen, but the short

fact is that one thing that does emerge is that

they appeared to understand, to Her Honour's

satisfaction anyway, what was being conveyed by her

evidence.

Abalos(3) 43 9/10/90

McHUGH J: But, when Her Honour says at line 25 on page 358:

Mrs Archer made the operation appear extremely

relaxed and simple with a minimum of

dorsiflexion or ulner deviation -

is Her Honour referring to the courtroom

demonstrations or to both the courtroom

demonstrations and the video cassette?

MR JACKSON: Well, Your Honour, it is difficult to say

exactly but if Your Honour looks at line 22, she speaks of "these demonstrations" and there is no

particular reason, we would submit - - -

McHUGH J: Although that is a reference back to:

In addition, she gave numerous demonstrations

in court -

MR JACKSON: Well, Your Honour, I was going to say, with

respect, that there is no particular reason to

treat the first sentence of that paragraph as one

having no further operation. It is obvious the

judge took it into account and it was not necessary

for her to say the demonstrations, meaning by that

the demonstrations on video and in court.

Could I say two other things, Your Honours:

the first is if one goes back to page 151, in the

first volume in the passage commencing at line 31,

our learned friends submit, in effect, that

supervision there is being dealt with more or less

in the abstract but if Your Honours look at what

occurred, commencing at page 150, line 34, going

through to page 152, line 7, it all appears to be

part of one overall set of questions and answers

dealing with the topic of the coding operations

in toto.

Your Honours, that was the penultimate matter

I wished to raise. The last matter is this:

Your Honour Justice Gaudron raised a number of

matters with my learned friend relating to the
extent of knowledge of the respondent in the sense
of asking what the evidence demonstrated concerning

the state of knowledge at the time. There are some

findings about that, Your Honour, at page 372,

line 19, the paragraph:

No person reading these articles -

and they are the articles about keyboard operating

posture and so on -

could have been left in any real doubt about

the link between the adverse postures noted

Abalos(3) 44 9/10/90

therein and the occurrence of symptoms in the

operators.

Then:

If anything should have served to alert an

employer as to the necessity of maintaining

safe operating postures, then it was these

articles.

Then, Your Honours, at page 373, line 7, the

first - lines 7, 8 and 9 - that is before one gets

to the evidence of Professor Ferguson concerning
the coding operations and, finally, Your Honours,

at page 374, lines 34 to the end of the page:

In the light of all this -

Your Honours, those are the submissions I wish to

make.

MASON CJ: Yes, thank you, Mr Jackson. Yes, Mr Bennett.

MR BENNETT:  May I have leave to make one very short point in reply, Your Honour?

MASON CJ: Yes, Mr Bennett.

MR BENNETT:  In relation to the passage on page 373 that

lines 7 and 8, the reference to "probably have been

sufficient" rather suggest that Her Honour was not

making a finding on that material alone, that it

was necessary to her finding to have what appeared

further. If Your Honours please.

MASON CJ:  Thank you. The Court will consider its decision

in this matter, and will adjourn until 10.15 am

tomorrow.

AT 12.20 PM THE MATTER WAS ADJOURNED SINE DIE

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