Bartley v Coles Myer Ltd

[1994] QCA 427

IN THE COURT OF APPEAL	[1994] QCA 427
SUPREME COURT OF QUEENSLAND

Appeal No. 66 of 1994

District Court Plaint No. 3788 of 1991

BETWEEN:

NOEL BARTLEY of Lot 3, Avondale Road,
Bundaberg in the State of Queensland

Appellant (Plaintiff)

AND:

COLES MYER LTD a company duly incorporated
according to law of 643 Kessels Road,
Upper Mount Gravatt, Brisbane in the said State

Respondent (Defendant)

Appeal No. 67 of 1994

District Court Plaint No. 1703 of 1991

BETWEEN:

NOEL BARTLEY of Lot 3, Avondale Road,
Bundaberg in the State of Queensland

Appellant (Plaintiff)

AND:

COLES MYER LTD a company duly incorporated
according to law of 643 Kessels Road,
Upper Mount Gravatt, Brisbane in the said State

Respondent (Defendant)

Davies JA
Derrington J

Cullinane J

Judgment delivered 25/10/1994

REASONS FOR JUDGMENT - THE COURT

Appeal upheld on both claims; judgment below set aside and matter remitted to Trial

Judge; respondent to pay appellant's costs of the appeal

CATCHWORDS:	Negligence - master and servant - employer's duty to provide safe system of work and to enforce it - degree of enforcement required in respect of resistant employee.
Causation - need to prove that reasonable enforcement conduct by the employer would have produced compliance by the employee - onus of proof.
COUNSEL:	Mr P.J. Goodwin with him Ms J.M. Sullivan for the Applicant Mr C. Newton with him Mr P.F. Peterson for the Respondent
SOLICITORS:	Thompson King Connolly, t/a for A.J. Sullivan for the Appellant Clayton Utz for the Respondent
HEARING DATE:	4th October 1994

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 66 of 1994

District Court Plaint No. 3788 of 1991

BETWEEN:

NOEL BARTLEY of Lot 3, Avondale Road,
Bundaberg in the State of Queensland

Appellant (Plaintiff)

AND:

COLES MYER LTD a company duly incorporated
according to law of 643 Kessels Road,
Upper Mount Gravatt, Brisbane in the said State

Respondent (Defendant)

Appeal No. 67 of 1994

District Court Plaint No. 1703 of 1991

BETWEEN:

NOEL BARTLEY of Lot 3, Avondale Road,
Bundaberg in the State of Queensland

Appellant (Plaintiff)

AND:

COLES MYER LTD a company duly incorporated
according to law of 643 Kessels Road,
Upper Mount Gravatt, Brisbane in the said State

Respondent (Defendant)

JUDGMENT OF THE COURT

Delivered the 25th day of October 1994

The appellant was the unsuccessful plaintiff in an action for damages for personal injury

alleged to have been caused by the negligence of the defendant on two separate occasions. He was

a butcher employed by the respondent and on each occasion he cut his left hand while boning and

slicing meat with a sharp knife.

His only relevant claims of negligence in respect of each event are that the respondent failed

to provide him with a mesh glove to protect his hand and/or alternatively that if it provided one it
failed to supervise him properly in order to ensure that he used it.

As to the former ground, there was clearly evidence upon which the learned Trial Judge

could have preferred the evidence of defence witnesses. He was not convinced that suitable gloves

were not provided by the respondent on either occasion. There is nothing in this point.

As to the second ground, although he recounts it as part of the appellant's submissions as to

negligence, the learned Trial Judge did not turn his mind, so far as his reasons disclose, to the issue

as to whether the respondent had exercised proper enforcement of the system of wearing gloves. It

is not enough for an employer to have a safe system of work; it must take reasonable steps to

enforce it: Barcock v. Brighton Corpn. (1949) 1 K.B. 339; Clifford v. Challen & Son Ltd (1951)

1 K.B. 495; Nolan v. Dental Manufacturing Co Ltd (1958) 2 All E.R. 449; Lewis v. High Duty

Alleys Ltd (1957) 1 W.L.R. 632, 638; Qualcast (Wolverhampton) Ltd v. Haynes (1959) A.C.

743; Bux v. Slough Metals Ltd (1973) 1 W.C.R. 1358. On this topic, it is necessary to refer to the

relevant incidents separately for, although in principle the nature of each event was similar, the

surrounding circumstances had changed by the time of the second injury.

The first of them occurred in November 1988 and the second in April 1989. At the time of

the former the appellant had been employed for approximately three months by the respondent, but

he was already an experienced butcher. He had been trained as an apprentice without the use of

gloves and carried on his trade for many years without using them. Consequently he preferred not

to wear them. Moreover, he had a pre-existing injury to one finger which was caused some

discomfort by the mesh of a glove.

From the time when he commenced work for the respondent it was made clear by notices

on the wall of his workplace, and by instruction by his superiors that he was expected to wear a

glove. However, he declined to do so and his resistance continued until his second accident. For its

part the respondent by its manager knew that the plaintiff and others were not complying with the

direction, but until after the first accident did not wish to make an issue about it and did not enforce

it. One major reason was the respondent's own convenience because it has difficulty finding
competent butchers in Mount Isa for its employ.

After the first accident but before the second, there was a change in the section's

management and the new manager seriously tried to enforce the safety rule. The learned Trial Judge

found that while the plaintiff knew of this, he generally worked without a glove except that perhaps

he wore one when the manager was present. There is no evidence to support this exception. While

there is some evidence saying that he sometimes wore it when the manager forced him to do so, the

manager's evidence is that the appellant refused to do so leading to serious arguments. The full

picture on this point was not pursued to a conclusion by either side.

In January 1989 in the course of one of these arguments there was discussion concerning the

appellant's discomfort from gloves by reason of his pre-existing injury. After a rubber underglove

had been supplied and rejected by the appellant as unsatisfactory, it was arranged that the appellant

would purchase suitable surgical gloves to wear under the mesh glove and that the respondent would

pay for it. Although he agreed to this the appellant did not do anything about it and the respondent

did not follow it up, but the latter is somewhat justified in this respect because its manager continued

to insist that the appellant should wear the safety gloves. The validity of the appellant's excuse was

questionable given his general non-cooperation.

The difference of approach of the respective managers at the times of the two events is

significant. As to the first, even on the evidence for the respondent, it is clear that its manager

knowingly failed to try to enforce the rule and even his encouragement was desultory and insincere.

He did not observe the rule himself.

Learned counsel for the respondent has argued that it could not reasonably have done

anything more than it did in order to prevent such non-compliance, but that is not so. After trying

persuasion it could and should have been progressively more insistent in its demands of compliance.

In McLean v. Tedman (1984) 155 C.L.R. 306 at 313 the High Court unanimously said:

"... And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

In the face of resistance and outright refusal, in the circumstances of this case it should first have

been more persuasive, then firmer in its direction to the point of complete insistence; and finally if all

else failed it should have threatened dismissal and, if necessary, dismissed him. The appellant's

refusal to obey cannot justify it in permitting a dangerous situation to continue. As it was, at the time

of the first accident there was no serious effort at all to overcome his resistance.

The question here is different from that which arises in some cases whether, if safety

equipment had been provided, the employee would have used it. Reference to those authorities is

unhelpful. In the present case the equipment was supplied but the respondent knew of and tolerated

the appellant's non-compliance. It discharged only part of its duty.

This may be contrasted with its conduct in relation to the second accident where a more

positive approach to enforcement is manifest. At that time, the then manager, Mr Campbell, took

strong if unsuccessful steps to enforce the system. Though perhaps he should have been delivering

an ultimatum to the appellant by that time, the appellant has not shown that such efforts in themselves

were inadequate, for lack of success does not predicate a lack of reasonable action. The

respondent's default in respect of the second accident lay not in Mr Campbell's efforts but in the

earlier state of affairs which must have reduced his authority on this issue and delayed his

effectiveness. Because the development of enforcement must be gradual and progress in

accordance with the exigencies of the situation, his efforts were reasonable in the circumstances.

The failure to achieve effective enforcement by the time of the second accident was due to the delay

before any real attempts at it were begun.

In the result, it was about eight months after the appellant commenced work that he was

injured on the second occasion. By that time, the enforcement pressure should have been such that

the appellant would have been forced to comply or be dismissed. Indeed, because his resistance to

the safety measures were known, that standard of enforcement should have been applied even

before the first accident.

That is not the end of that matter for a causal link must still be demonstrated between the

respondent's default and the accident in each case. In the present circumstances, the issue is

whether if reasonable attempts at enforcement had been made, the same result would have obtained

because of the appellant's intransigence, as happened in the second accident. Of course that result

is not conclusive because the standard of enforcement that should then have been reached was

higher than Mr Campbell had been able to reach.

The onus of proving causation is on the appellant: Duyvelshaff v. Cathcart & Ritchie Ltd

(1973) 47 A.L.J.R. 410 at 415; Bonnington Castings Ltd v. Wardlow (1956) A.C. 613;

McWilliams v. Sir William Arrol & Co Ltd (1962) 1 W.L.R. 295, at 299, 304, 306 and 309.

In McLean v. Tedman (supra) at 314, the following passage appears in that part of the

judgment which had the support of the entire court:

"It is said, nevertheless, that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view, once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the men's prospects of taking a second job."

This refers to a shift in the evidentiary onus that follows from the inference that prima facie in

the circumstances referred to, the workman would follow the practical system designed for their

safety if it had been introduced. This is all a question of the inferences flowing from the facts of the

case. No such inference would have followed in Duyvelshaff because of the different circumstances.

In the circumstances of the present case where the appellant has shown some serious resistance to

wearing a glove, the evidentiary onus reverts to him to prove that on proper exhortation suitable to

the stage of forcefulness that should have been reached at the time of each respective accident, he

would probably have succumbed to it and worn the glove: cf. Bux v. Slough Metals Ltd (supra) at
1368.

On the evidence, despite his recalcitrance on this issue and some rebelliousness as to his

sartorial appearance, the appellant was a hard and competent worker and shortly before the second

accident he was put on the respondent's permanent staff. This too suggests that he was generally

responsible and valued his job. In the total context there is a strong inference that if suitable

pressure had been applied, he would have complied rather than lose the job. Alternatively, of

course, he would have been dismissed and so would not have been injured in this way.

As the appellant has proved that each default of the respondent caused or contributed to the

result, he must succeed on both claims. His own responsibility for his injuries should be held to be

equal to that of the respondent in each case for although it had the primary obligation to enforce

safety precautions, his deliberate resistance and disobedience contributed substantially to the result.

His award should therefore be reduced in each case by fifty percent for his contributory negligence.

Unfortunately the learned Trial Judge has deferred the assessment of damages. As the

present circumstances show, this is highly undesirable and contrary to accepted practice. The

further trial of the action must now be remitted to him for assessment of the damages on both causes

of action.

The appeal is upheld on both claims. The judgment below is set aside and the further

hearing of the matter is remitted to the Trial Judge to proceed according to law. The respondent is

to pay the appellant's costs of the appeal.