Best Bar Pty Ltd v Warn
[2019] WASCA 15
•29 JANUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BEST BAR PTY LTD -v- WARN [2019] WASCA 15
CORAM: QUINLAN CJ
MURPHY JA
MITCHELL JA
HEARD: 21 NOVEMBER 2018
DELIVERED : 29 JANUARY 2019
FILE NO/S: CACV 20 of 2018
BETWEEN: BEST BAR PTY LTD
Appellant
AND
JOHN ELLIOT WARN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BRADDOCK DCJ
Citation: WARN -v- BEST BAR PTY LTD [2018] WADC 17
File Number : CIV 2839 of 2015
Catchwords:
Appeal - Negligence - Duty of care - Reasonable foreseeability - Workplace injury - System of work - Whether trial judge erred in finding risk of injury was reasonably foreseeable - Whether trial judge erred in finding appellant negligent by failing to provide adequate equipment, information, training, instructions or supervision - Error by trial judge did not affect outcome - Appeal dismissed
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr D R Clyne |
| Respondent | : | Mr T J Hammond & Mr A J Stewart |
Solicitors:
| Appellant | : | Kott Gunning |
| Respondent | : | Chapmans Barristers & Solicitors |
Case(s) referred to in decision(s):
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2] [2012] WASCA 110
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR
Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
JUDGMENT OF THE COURT:
On 2 February 2018, Braddock DCJ ordered that judgment be entered for John Elliot Warn (the respondent) against Best Bar Pty Ltd (the appellant) in the sum of $1,383,300.12. The damages were awarded in respect of an injury to the respondent's back sustained by him in the course of his work at the appellant's business premises on 20 May 2013.[1]
[1] As explained by the learned trial judge at Reasons [10], the injury suffered by the respondent was initially alleged to have occurred on, or about, 27 May 2013. The confusion caused by this incorrect date led to the trial being adjourned and the pleaded date being amended without objection.
On the date of the injury the appellant was the respondent's employer. The learned trial judge found that the respondent's back injury was caused by the negligence of the appellant, in breach of its duty to take reasonable care for the safety of its employees and to provide those employees with a safe working environment.
The appellant does not appeal the quantum of damages. The appeal is confined to the issue of liability.
Background
On 20 May 2013, the respondent was working on a machine which bent steel reinforcing rods (or bars) into various shapes and sizes. The machine he used on the day was called a 'Robo 45'. The Robo 45 used a largely automated process for arranging and bending the bars.
The respondent gave evidence that, on that day, he was using a method of operation for the Robo 45 which was described as the 'short bar' method. This was to be contrasted with what was described as the 'standard' method. Under both methods, the bars were bent around a mandrel using an automated process.
As the trial judge described it, a worker using the standard method was not required to lift the bent bars out of the Robo 45. Rather, using that method, the machine's 'kickers' or arms automatically raised the bars and rolled or slid them towards the operator. The bars were then placed on a trolley at waist height by the operator (or alternatively dropped onto a holding gallery).[2] The process involved in the standard method was depicted in a DVD recording prepared by the appellant for the purpose of the proceedings (Exhibit D5).
[2] Reasons [27].
The 'standard method' was recorded, in detail, in the appellant's standard operating instructions for the Robo 45 (Exhibit P148).[3] While those standard operating instructions indicated that it may be necessary to hold the ends of the bars to steady them, the instructions stated 'Only support the end - there is no need to take the weight of the bar'.[4]
[3] Reasons [27].
[4] Reasons [85], [101]; Exhibit P148, pages 3 - 4.
The 'short bar' method, used by the respondent, circumvented the process by which the kickers raised the bars, leaving the operator to lift the bars off the machine manually. The short bar method employed by the respondent was further described by the learned trial judge by reference to Exhibit D5. As we have noted, Exhibit D5 demonstrated the use of the Robo 45 in the standard method. The DVD, nevertheless, demonstrated the obstacles over which the bars would need to be lifted using the short bar method.
At [79] the learned trial judge stated:
If [the bars] were not raised up and pushed towards the operator using the kickers as in the 'standard' method, they would need to be lifted high enough to clear the mandrel around which they had been bent. This does not appear to be more than about 25 centimetres from the DVD and the diagram of the Robo 45 (exhibit P153). Further, the trolley has 'posts' to hold the bars in position on it, which bars must be lifted over, which Mr Warn said were about 300 mm in height.
In this context it is clear that the short bar method used by the respondent involved a combination of bending, lifting and twisting.
The appellant's case at trial was that there was no evidence that the short bar method adopted by the respondent was unsafe or a risk to an operator of the Robo 45. There was, however, expert evidence led by the appellant that the standard method of operating the Robo 45 was a safe method of operation, and that that operation was generally safe.
In that regard, the appellant tendered a report of Dr Timothy Ackland dated 15 February 2016. Dr Ackland's report included the following opinion:[5]
[5] Green Appeal Book (184).
The system of work is generally safe provided the operator follows the Standard Work and Safety Instructions documented for the Robo 45 bender. That is:
·The operator is able to maintain close to an upright posture at all times;
·There is minimal bending or twisting required of the operator's trunk;
·The operator is able to walk around the machine to properly re‑position their body posture for each aspect of the task;
·There is no need for the operator to lift the bars from the clamps at the centre of the machine;
·The weight of four bars is not excessive for an experienced operator to handle, especially since the machine delivers the bars close to the operator's body at waist level (via the discharge arms);
·The load of the four bars can be held close to the operator's waist while being transferred a short distance to the trolley‑table - representing the adoption of good manual handling principles;
·The timing of the bending job is within the operator's control - 'loading' and 'start' buttons allow the operator to influence the flow of tasks.
The learned trial judge summarised Dr Ackland's opinion and concluded 'that the method Mr Warn did not use was safe'.[6] That conclusion was consistent with the appellant's case at trial and on appeal.
[6] Reasons [76] (emphasis added).
The appellant did not call witnesses to give viva voce evidence at trial. In particular, it did not call the shift safety representative (Mr Edwin Van der Hoff) or the appellant's occupational health and safety officer (Mr Lee Kopacz).
Before setting out her Honour's conclusions on liability, the learned trial judge made a number of findings of fact relevant to the evaluation of liability. Those findings included:[7]
(a)on the morning of the accident, immediately prior to the accident, the respondent had bent shorter bars in lots of four or five individual bars;
(b)that activity amounted to between 13 and 19 operations involving lifting the bars onto the table;
(c)the weight of the bars varied depending upon the length and whether four or five bars were bent together; and
(d)the weights were between 12 kg and 20 kg per lift.
[7] Reasons [97].
The learned trial judge found, as a fact, that the respondent was clearly of the view that the method he was using complied with his training, was within his capacity and a 'normal' operation of the machine. Her Honour also found that the short bar method used by the respondent was 'known to Mr Van der Hoff and Mr Kopacz, thus to Best Bar, and was an accepted method of working on the Robo 45 in the circumstances [the respondent] described'.[8]
[8] Reasons [106].
In this regard, her Honour was satisfied on the balance of probabilities that the respondent was using a known and accepted alternative method on the Robo 45 and that it was more likely than not that his 'on the job' training would have included the use of the short bar method.[9]
[9] Reasons [107].
None of these primary findings of fact is challenged by the appellant.
In arriving at her Honour's conclusions on liability, the learned trial judge also made the following findings of fact:
(a)that the respondent's manner of using the machine was contrary to the standard operating instructions;[10]
(b)that the process of bending the bars was 'an industrial process, using a powerful and sophisticated machine, with established and detailed operating instructions, which, if applied, would have reduced the risks of injury';[11] and
(c)that the Robo 45 was a machine designed to do the heavy work of bending bars of various sizes, in an automated and controlled fashion, without the operator being required to manhandle heavy bars. Her Honour specifically identified that as being the context of the accident.[12]
[10] Reasons [108].
[11] Reasons [109].
[12] Reasons [112].
The learned trial judge's ultimate conclusion in relation to liability was as follows:[13]
As I have found that Best Bar knew of this practice [the use of the short bar method], which was contrary to the instructions for the use of the Robo 45, the complete absence of any instructions or limits in its use, any warnings of its dangers or any assessment of the practice establishes a failure to take reasonable care for the safety of workers using the Robo 45.
[13] Reasons [115].
Her Honour then went on to identify the particulars of claim in relation to which her Honour's finding of breach related. In that regard, the Amended Statement of Claim, at [10], pleaded the following particulars of negligence:
(a)failed to ensure that when the Plaintiff carried out the task, all three discharge arms were used to deliver the bars to the operator's waist level, so that the Plaintiff did not have to physically lift the bars out of the machine;
(b)failed to prevent the Plaintiff from carrying out the task in a manner that required him to physically lift the bars out of the machine;
(c)failed to ensure it provided sufficient staff numbers, that being at least one additional staff member, to assist the Plaintiff when carrying out the task so as to avoid having to physically lift the bars out of the machine without assistance;
(d)failed to put in place or ensure others put in place a system of work that would ensure all three discharge arms were used to deliver the bars to the operator's waist level, so that the Plaintiff did not have to physically lift the bars out of the machine;
(e)failed to provide the Plaintiff with the necessary information, instructions, training and/or supervision to ensure the Plaintiff avoided having to carry out the task in a manner which required him to physically lift the bars out of the machine;
(f)failed to assess the risks involved and/or warn the Plaintiff of the risks involved in carrying out the task in a manner that required him to physically lift the bars out of the machine as a result of the machine;
(g)failed to provide adequate equipment so as to allow the Plaintiff to carry out the task safely and avoid having to physically lift the bars out of the machine;
(h)failed to put in place systems to ensure that it did or avoided doing those things specified in (a) - (g) above.
In relation to these particulars of negligence her Honour found that particulars (e), (f) and (g) have been established. Her Honour said:[14]
I conclude that pars (f) and (g) are made out of the amended particulars of claim. Most crucially par (f) alleges Best Bar 'failed to assess the risks involved and/or warn the plaintiff of the risks involved in carrying out the task in a manner that required him to physically lift the bars out of the machine'. Having not considered what was being done or how it was being done, it can also be said that particular (g) is made out in not providing 'adequate equipment so as to allow the plaintiff to carry out the task safely and avoid having physically to lift the bars out of the machine'. Particular (e) is widely drafted, but in as much as it is an allegation of failure to instruct or supervise adequately it is also made out.
[14] Reasons [117].
There is one curious aspect of the learned trial judge's conclusions in this regard, namely that, in light of her Honour's findings of fact, she did not expressly find that particular (a) of the particulars of negligence was made out. That particular (failing to 'ensure that … all three discharge arms were used to deliver the bars to the operator's waist level, so that the Plaintiff did not have to physically lift the bars out of the machine') was, in context, clearly a reference to the 'standard method'.[15]
[15] The 'discharge arms' referred to in the particulars are what the learned trial judge described as the 'kickers'.
Given that the standard method was a safe method, it might have been thought that the failure to require that that method be employed would emerge as the most obvious of the particulars to be referred to by her Honour. This might be explained by reason of the potentially troublesome use of the word 'ensure' in this context, given that the standard is one of reasonable care and not strict liability.
Nevertheless, the omission of this particular in her Honour's final conclusions did raise the question, in the course of the appeal, as to whether her Honour was satisfied that the respondent could have used the standard method with shorter bars (i.e. whether that was physically possible). There had been some controversy in this regard at trial.
The appellant's position at trial, and on appeal, was that the Robo 45 was designed to lift all size bars in the standard method.[16] The bars used by the respondent on the morning of the accident varied in length between 1,600 mm and 4,275 mm.[17] As her Honour noted, it was clear from the demonstration on Exhibit D5 that the standard method could be used on bars of 1950 mm,[18] which the respondent classified as a short bar.[19]
[16] Appeal ts 21.
[17] Reasons [88].
[18] Reasons [39].
[19] Reasons [93].
The respondent, who the learned trial judge considered was not a good historian,[20] gave somewhat conflicting evidence as to whether the standard method could be used for all operations. For example, the respondent gave evidence that it was not possible to use the standard method with short bars because the ends of the bars could become tangled.[21] However, in cross-examination the respondent agreed that he could have set the machine up in the 'standard' manner, but that he used the short bar method because that was the way it was done and the machine had been set up that way from the previous shift.[22]
[20] Reasons [96].
[21] Reasons [78]; Green Appeal Book (67). As the learned trial judge recognised, however, the potential for the bent bars to shift existed in relation to the standard method as well, hence the instruction in the standard operating instructions that the bar ends may have to be held or steadied: Reasons [85], Exhibit P148 pages 3 -4.
[22] Reasons [82]-[83]; Green Appeal Book (125).
Despite the ambiguity in the evidence in this regard, and consistent with the manner in which the appellant puts its case on appeal, it is appropriate that we proceed on the basis that the respondent could have used the standard method with shorter bars.
This approach is consistent with the learned trial judge's express (unchallenged) findings that the respondent's manner of using the machine (to bend shorter bars) was contrary to the standard operating instructions,[23] and that the machine was designed to do the heavy work of bending bars of varying sizes without the need to manhandle heavy bars.[24] It is also consistent with her Honour's express finding that the respondent had established the particular of breach to the effect that the appellant had failed to instruct or supervise the respondent adequately (particular (e)).
[23] Reasons [108].
[24] Reasons [112].
We turn then to the grounds of appeal.
Grounds of Appeal
The four grounds of appeal are as follows:
(1)The learned trial Judge was wrong in law in finding the Appellant negligent on the basis of it being reasonably foreseeable that lifting heavy items is dangerous and thereafter determining a breach on the part of the Respondent for not assessing the risks involved in the tasks he was performing, in circumstances where there was no evidence at all that those tasks were unsafe or dangerous. In particular, there was:-
(a)No evidence that the load lifted being between 12-15kg was heavy or too heavy for the Respondent.
(b)No evidence at all that had the task been assessed it would have been determined as unsafe.
There was therefore no basis for finding that the failure to assess was causative of the injury.
(2)The learned trial Judge was wrong in law in finding that the Appellant was negligent in failing to provide adequate equipment so as to allow the Respondent to carry out the task safely when there was no evidence at all to support such a finding, to the contrary the only evidence concerning the equipment provided was that it was appropriate for the task.
(3)The learned trial Judge was wrong in law in finding the Appellant negligent for failing to provide the Respondent with necessary information, instructions, training and/or supervision, when the evidence of the Respondent was that he had been properly trained and instructed in the use of the relevant piece of machinery, namely a Robo 45 bending machine.
(4)The learned trial Judge was wrong in law in assessing the negligence of the Appellant on a retrospective basis rather than by properly determining it by asking whether there was a foreseeable risk of injury.
Disposition
Ground 1
The gravamen of ground 1 is that there was no evidence led by the respondent, and in particular no expert evidence, to support the finding that the 'short bar' system employed by the respondent was unsafe. In that regard, the appellant challenges the conclusion of the learned trial judge that there was 'a foreseeable risk of injury in the system of work adopted by [the respondent]'.[25]
[25] Reasons [109].
The challenge is made in terms of both breach and causation:
(a)As to breach, on the basis that the evidence did not establish that the method used by the respondent involved a foreseeable risk of injury; and
(b)As to causation, on the basis that the evidence did not establish that any assessment of the method used by the respondent would have determined that that the method was unsafe.
While distinct, both limbs to this ground involve the question whether it was reasonably foreseeable that the manual lifting involved in the 'short bar' method adopted by the respondent could result in injury.
In this regard, the appellant lays emphasis upon the weight of the bars lifted by the respondent which (in accordance with her Honour's finding) were between 12 kg and 20 kg per lift. The appellant submits that there was no evidence that those weights were too heavy for the respondent and therefore nothing to support the finding there was a foreseeable risk of injury due to the weight of the items being lifted by the respondent.
The appellant submits that, while it may be permissible for a judge to take judicial notice of the fact that lifting heavy items can cause a back injury, it is 'not then permissible to use judicial notice, in the absence of any evidence whatsoever, that the weight lifting in this case was such as to be a foreseeable risk of injury.'[26]
[26] Appellant's outline of submissions [3].
In our view, there is no relevant error on the part of the learned trial judge revealed by ground 1.
Before turning to the issue of foreseeability in the context of breach, it is worth first recalling the nature of the duty of care in the present case, which was uncontroversial. It is a duty arising from the employment relationship between the appellant and the respondent and obliged the appellant to reasonable steps to provide a safe working environment. Also, the employer's duty at common law extends to giving the employee directions in the performance of the work where directions might reasonably be thought to be required to secure the employee from danger or injury.[27] As with any common law duty of care, it is a duty to take reasonable care; it is not a duty to safeguard employees from all perils, or some more stringent requirement of prevention.[28]
[27] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 689.
[28] See Transfield Services (Australia) Pty Ltd v Wieland [2014] WASCA 41 [18] (Pullin JA); M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2] [2012] WASCA 110 [156] (Murphy JA).
Nevertheless, the fact that the duty is of an employer gives it some special features. First, the duty is non-delegable; that is, it will not be discharged by delegating its performance to a competent contractor. In this sense, it is a duty not simply to take reasonable care, but to ensure that reasonable care is taken for the safety of employees.[29] Secondly, given the position of the employer, its obligation, in discharging its duty to take reasonable care, 'is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system'.[30] That is nature of the duty owed by the appellant in the present case.
[29] Kondis v State Transport Authority (687) (Mason J).
[30] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan & Dawson JJ).
The fact that the duty remains one to take reasonable care,[31] underscores the undemanding nature of the test for whether a risk is relevantly 'foreseeable'. That is because, in some circumstances, a foreseeable risk is so obvious and the remoteness of the likelihood of it eventuating may be such that reasonableness may require no response to the risk at all.[32]
[31] Or to ensure that reasonable care is taken.
[32] M R & R C Smith Pty Ltd t/as Ultra Tune (Osbourne Park) v Wyatt [No 2] [2012] WASCA 110 [162] (Murphy JA).
Further, in the context of breach, the 'foreseeability' of a risk is not concerned with its likelihood or probability. As Mason J stated in his Honour's celebrated judgment in Wyong Shire Council v Shirt:[33]
foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry.
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful.
…
[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.
[33] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J).
Similarly, in assessing whether a risk of injury is foreseeable, it is sufficient if the class (or kind) of injury is foreseen as a possible consequence of particular conduct.[34] It is not necessary to be able to foresee the particular injury. Nor is it necessary that the precise sequence of events leading to injury be foreseen.[35]
[34] Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 390 (Barwick CJ)
[35] Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR [46] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
Accordingly, in the present case the relevant inquiry, for the purposes of foreseeability, was whether the manual handling of the metal bars involved in the short bar method carried out by the respondent gave rise to a foreseeable risk of back injury. It was not necessary that an injury of any particular severity, or the particular mechanism of any such injury, be foreseeable.
It is clear that the learned trial judge was alive to these considerations. At [110] her Honour stated:
Back injuries can be anything from a mild, short lived muscular strain to seriously debilitating structural damage to the spine.
Later her Honour stated, at [116]:
I find that it was reasonably foreseeable that a back injury could result from this kind of lifting and twisting. It is not necessary to foresee the precise mechanism of injury … This was a severe injury. Another worker might have had a milder back strain. The fact that he might have been more vulnerable to injury in this physical work does not relieve his employer of the duty to take reasonable care, nor in these circumstances does it render some form of back injury unforeseeable or too remote to require actions by a reasonable employer.
In our view, it was not necessary for there to be particular evidence as to the degree of risk posed by lifting 12 to 20 kg loads on 13 to 19 occasions in order for her Honour to be satisfied that manual lifting of the kind undertaken by the respondent (with the knowledge of the appellant) gave rise to a foreseeable risk of back injury. It was open to the learned trial judge to reach that conclusion in light of all of the circumstances, including the nature of the activity, the degree of regularity or repetition of that activity likely to occur in a factory processing large orders, and the diversity of back injuries, all of which were referred to her Honour.[36]
[36] Reasons, [109], [110], [111], [116].
Even if it was the case that the risk of back injury from the particular activity undertaken by the respondent was extremely unlikely, it was nevertheless open to the learned trial judge to find that it was foreseeable, in the sense that it was not far-fetched or fanciful.
The degree of likelihood of the risk eventuating (and whether it was remote) only becomes relevant to the next stage of the breach inquiry: that of identifying the response of the reasonable employer to the risk of back injury. In that regard, the response of the reasonable employer 'calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have'.[37]
[37] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J).
As to that response, in the present case the learned trial judge had evidence before her of a system of work (the 'standard' method) which was safe and which was evidently designed to reduce the risk of injury, including back injuries generally. The 'standard' method was not only a reasonable response to the risk of back injuries generally, it was one positively relied upon by the appellant.
In that regard, as the extract of Dr Ackland's report set out above demonstrates, the standard method for the use of the Robo 45 did not involve any bending or lifting by the operator, as the kicker arms delivered the bars to the operator close to his or her body and at waist height. These were matters emphasised by Dr Ackland in his conclusion that the standard method of operation was safe.
Her Honour was therefore entirely correct to conclude that the industrial process undertaken by the respondent had 'established and detailed operating instructions, which, if applied, would have reduced the risks of injury.'[38]
[38] Reasons [109].
In our view, it was an irresistible conclusion that the short bar method employed by the respondent did not have the safety features identified by Dr Ackland. In particular, unlike the system of work described by Dr Ackland, by using the short bar method it was necessary for the operator to bend forward and manually lift items. Similarly, unlike the system identified by Dr Ackland, the short bar method would not deliver the bent bars close to the operator's body and at waist height.
Accordingly, in our view, the learned trial judge was correct to conclude that the standard operating procedure for the Robo 45 provided less risk of injury than the short bar method adopted by the respondent. The learned trial judge therefore had evidence of a system of work that, had it been employed, reduced the risk of injury to the respondent.
It is also significant, as noted above, that the obligation of an employer, in discharging its duty to take reasonable care, 'is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system'.[39] In deciding whether an employer has responded reasonably to a risk the Court must therefore take account of the power of the employer to prescribe, warn, command and enforce obedience to its commands.[40]
[39] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan & Dawson JJ).
[40] McLean v Tedman 313 (Mason, Wilson, Brennan & Dawson JJ).
In this context, the learned trial judge's finding that the method employed by the respondent was known to the appellant takes on particular significance.
In circumstances in which there was a system of work identified by the appellant as being the correct and safe one which reduced a reasonably foreseeable risk of back injury to the respondent, and in which the appellant was aware that a non-standard and less safe method was, in fact, being utilised, it was open to the learned trial judge to find, as she did, that the appellant had failed to take reasonable care for the safety of workers using the Robo 45.
Having established a safe operating process for the Robo 45, it was incumbent on the appellant, by instructing its employees, to take reasonable care to maintain and enforce the utilisation of that safe method of work. As the learned trial judge found, the respondent was not instructed to use that method at all times and, to the appellant's knowledge, was not doing so. It was open to the judge to infer (as we would infer) that there was a reasonably foreseeable risk of back injury in the utilisation of the short bar method, and that the respondent's back injury would not have occurred or would at least have been reduced or minimised[41] had the respondent been instructed not to use the short bar method and/or had the safe, 'standard' method of work been maintained.
[41] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [34], [104].
Ground 1 is not made out.
Ground 2
Ground 2 challenges the finding in respect of particular (g) of the particulars of negligence, namely that the appellant failed to provide adequate equipment.
The appellant says that this finding was wholly wrong in light of the expert evidence called by the appellant that 'the machine was entirely appropriate and safe.' In this regard, the appellant submits that 'the injury happened, at least on the basis as found by her Honour, because the respondent did not use the machine in the correct manner'.[42]
[42] Appellant's outline of submissions [6].
The appellant's submission in this regard is, in our view, correct. In our view there was no basis for the learned trial judge to find that the appellant had failed to provide 'adequate equipment'. The appellant's expert evidence (which was not the subject of challenge) demonstrated that when using the standard method the Robo 45 was safe.
Nevertheless, the appellant's argument on ground 2, in our view, exposes the difficulty for the appellant in relation to the other particulars of negligence. As the appellant submits, it proved that there was an appropriate and safe method of using the machine.
The fact that the learned trial judge found that, to the appellant's knowledge, the respondent did not use that appropriate and safe method and that the respondent saw no problem in adopting an alternative method, rather demonstrates the failure of the appellant to provide and maintain a safe working method.
Accordingly, while ground 2 is made out, it does not affect the outcome of the appeal, in circumstances in which the other particulars of negligence identified by the learned trial judge were established.
Ground 3
Ground 3 challenges the finding of negligence on the basis that there was a failure to instruct or supervise adequately. The appellant in particular relies upon the respondent's own evidence that he was adequately and properly instructed.
The appellant, for example, relies upon a statement made by the respondent to an insurance investigator to the effect that:[43]
I believe I am able to operate the machinery I have been trained in at Best Bar to a high standard.
[43] Green Appeal Book (153); See also transcript at Green Appeal Book (118 - 119).
The respondent's subjective belief that he had been trained and instructed to an adequate standard does not answer the question whether, applying the objective standard of reasonable care, the appellant had breached its duty of care.
Indeed, contrary to the appellant's submission, in our view the respondent's subjective belief that he had been trained and instructed to an adequate standard supports, rather than detracts from, the learned trial judge's finding that he had not been properly instructed.
As the reasons of the learned trial judge make clear (indeed, it was critical to her Honour's finding that the short bar method was a common method employed at the appellant's premises), the respondent did not consider that he was doing anything 'wrong' or 'unusual' in adopting the method that he did. The fact that he regarded his own actions as being fully in compliance with his training and instruction - when they were directly contrary to the standard operating instructions[44] - demonstrates the inadequacy of that training and instruction.
[44] Reasons [108].
Moreover, the learned trial judge's finding in this context also included a failure of supervision. Her Honour's findings that the short bar method used by the respondent was known to Mr Van der Hoff and Mr Kopacz,[45] his relevant supervisors, and that they did not require the respondent to follow the standard operating instructions, provide additional support for the learned trial judge's conclusion.
[45] Reasons [106].
Ground 3 has not been made out.
Ground 4
This ground alleges that the approach of the trial judge was affected by 'hindsight bias' and that her Honour assessed the evidence in a retrospective way.
As the appellant's submissions accept, her Honour correctly set out the law in this regard and cautioned herself as to 'the need to guard against hindsight bias'.[46]
[46] Reasons [70].
In our view, for the reasons identified in relation to Ground 1, her Honour's findings are not affected by hindsight bias in circumstances in which, based on the expert evidence and work procedures of the appellant, a safe method of operation was identified that was not, in fact, employed.
Ground 4 has not been made out.
Conclusion
While ground 2 is made out, for the reasons set out above, it does not affect the outcome of the appeal.
The appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan29 JANUARY 2019
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