Bulent Aycicek v Flowline Industries Pty Ltd
[2019] VSCA 37
•6 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0066
| BULENT AYCICEK | Applicant |
| v | |
| FLOWLINE INDUSTRIES PTY LTD | Respondent |
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| JUDGES: | BEACH, KYROU and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 37 |
| JUDGMENT APPEALED FROM: | [2018] VCC 477 (Judge Brookes) |
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NEGLIGENCE – Employer – Contributory negligence – System of work – Evidence of system of work – Whether worker failed to comply with system of work – Whether worker failed to comply with employer’s direction – Whether worker failed to take reasonable care for own safety – Whether jury finding of contributory negligence open – View of evidence most favourable to respondent employer, consistent with jury verdict – Jury finding of contributory negligence not open – Jury finding of contributory negligence set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J P Gorton QC with Mr M J Hooper | Zaparas Lawyers Pty Ltd |
| For the Respondent | Mr S A O’Meara QC with Mr S E Gladman | Wisewould Mahony Lawyers |
BEACH JA
KYROU JA
EMERTON JA:
Between April 2002 and September 2012, the applicant was employed by the respondent as an assembly worker.
In March 2017, the applicant commenced a proceeding in the County Court against the respondent, claiming damages in respect of spinal injuries he alleged he suffered in the course of his employment between 2005 and 2012. The applicant alleged that he suffered injury in specific incidents that occurred on 23 August 2005, 13 May 2008 and 12 September 2011.
On 23 March 2018, after a trial lasting some eleven days, the jury found that the applicant had suffered injury, loss and damage by reason of the respondent’s negligence and breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (‘the Regulations’), and they assessed his damages in the total sum of $585,000. The jury further found that there was contributory negligence on the part of the applicant and that it was just and equitable to reduce his damages by 38 per cent to account for his share in the responsibility for the damage.
Subsequently, on 18 April 2018, the trial judge entered judgment for the applicant in the sum of $336,770. That sum was calculated based on the jury’s verdict, an agreed Fox v Wood[1] component, an agreed amount for interest, and the reductions required to be made by ss 134AB(25) and (26) of the Accident Compensation Act 1985.
[1](1981) 148 CLR 438.
The applicant now seeks leave to appeal against the judgment to the extent that it is based on the jury’s findings of contributory negligence. He relies on two proposed grounds: the first ground asserts that it was not open to the jury to find contributory negligence; and the second ground asserts, in the alternative, that it was not open to the jury to find that his damages should be reduced by 38 per cent.
It was common ground before us that the jury’s finding of contributory negligence must be understood to be related to the lower back injury that the applicant suffered on 23 August 2005 when he lifted, without assistance, a full crate of electrical components that weighed approximately 62 kilograms. In this Court, the respondent put its case on contributory negligence on two bases:
(1) In lifting the crate, the applicant failed to comply with the respondent’s system of work because he breached the respondent’s prohibition on its workers lifting weights greater than 20 kilograms without assistance.
(2) The applicant lifted a crate which he knew, or ought to have known, in any event was too heavy and unsafe for him to lift without assistance.
These bases included within them allegations that the applicant should have weighed the crate before he attempted to lift it; alternatively, he should have waited for assistance to arrive at the end of his shift, if assistance was not available at the time of lifting.
Issues and evidence at trial
In its defence, the respondent pleaded contributory negligence in relation to any injury suffered by the applicant as a result of the negligence or breach of duty of the respondent. So far as the lifting of the crate was concerned, the relevant particulars given in the respondent’s defence were:
(a)Failing to seek assistance where [the applicant] knew or ought to have known that assistance was needed.
…
(c)Lifting the said crate when he knew or ought to have reasonably known it was unsafe for him to do so.
There was no allegation that the applicant failed to comply with a direction or requirement or a system of work that prohibited him from lifting weights greater than 20 kilograms without assistance.
The trial commenced in the usual way with counsel for the applicant opening the applicant’s case to the jury and describing, amongst other things, the evidence the applicant would give about the circumstances in which he came to suffer his alleged injuries. Following the applicant’s opening, counsel for the respondent briefly opened the respondent’s case to the jury. In relation to the lifting of the crate, the respondent’s counsel said:
When the plaintiff started in 2002, he was inducted. He was given a manual which he signed off on, and he was instructed in safe lifting at that time. Further to that, he was told not to do heavy lifting in that manual.[2]
…
The first incident of lifting 61 kilos [the crate], if the plaintiff lifted 61 or 62 kilos, he should never have done it. He knew that, and there was no need for him to do it. There was both mechanical and manual assistance available to him in any heavy lifting, and he was well aware of that.
[2]Emphasis added.
The applicant gave evidence at trial. He also called an expert engineer to give opinion evidence relevant to the issue of liability. The critical evidence given at trial, so far as the issues in this Court are concerned, was given by the applicant and, to a lesser extent, the applicant’s engineer.[3] The respondent did not call evidence from any witness on the issue of liability.
Applicant’s evidence-in-chief
[3]The applicant also called evidence from his wife, and both parties called medical practitioners to give evidence about the applicant’s alleged injuries. It is not necessary, however, to refer further to that evidence for present purposes.
The applicant gave evidence that on 23 August 2005 he was working assembling fuse boxes. He said the system of work involved him placing an empty crate on top of another empty crate, and then as he finished assembling each fuse box, he would put the completed fuse boxes in the top crate. Eventually, he would place 125 to 150 completed fuse boxes in the top crate. When the crate was full, the applicant was required to lift it up, put it on the floor and then put the other crate on top of the one that had just been filled.
The applicant gave evidence that there were trolleys at the premises on the day. If a trolley was available then an empty crate could be put on top of it, obviating the need to lift a full crate at the completion of the task. The applicant said, however, that there were not enough trolleys and that he did not have a trolley at the time he performed the work that gave rise to his injury. The trolleys were all ‘full’. The applicant said that after he suffered his injury, the respondent acquired more trolleys upon which the crates could be put.
In his examination-in-chief, the applicant said that he had seen employees of the respondent doing the work he was doing during the previous three years. He had seen people lifting the crates when they were filled. Sometimes one person would lift a crate. Sometimes two people would do it. The applicant was asked whether any direction was ever given to him, before he was injured, whether he should lift crates on his own or with help. He said no such direction was ever given.
The applicant was asked whether any ‘guideline’ was given to him about how heavy the crates were. He said:
Never told. No-one tell me anything about the weights, no-one tell me anything about, ah, don’t lift or anything.
The applicant was asked by his counsel what he knew, before he suffered injury, about whether it was dangerous for him to lift the crates. He said:
I didn’t know. They were being told — I saw so many people doing it. The store people come like a — even 60 years old, they’re all doing it at that time. We have some store guy, he was around 60 years old, he come grab it like nothing.
Applicant’s cross-examination
The cross-examination of the applicant commenced with some questions about whether or not he underwent ‘group training’ on 17 April 2002 when he was first employed. The applicant said he did not remember this. He was then asked a series of questions in relation to two documents: a document headed ‘Induction Training Checklist’ (‘the induction training checklist’); and a document headed ‘Manual Handling’ (‘the manual handling document’).
The induction training checklist was a document signed by the applicant on 17 September 2002. In it, the applicant was recorded as having ticked that he had received a copy of ‘Occupational Health and Safety Policy — Rules and Regulations’. It was suggested in the cross-examination of the applicant that the induction training checklist demonstrated that he had been given a copy of the manual handling document.
Initially in his cross-examination, the applicant did not accept that he had been provided with a copy of the manual handling document. Before further describing the applicant’s cross-examination, it is necessary to give a brief description of the manual handling document.
The manual handling document was a three page document. The first page gave some detail about what manual handling was, types of manual handling injuries that can be suffered, information and training that should be provided and other details of a general nature about the topic.
The second page of the document contained a heading ‘Ways to Reduce the Risk at Work’. Under this heading it was asserted that manual handling injuries could be prevented by education, training and supervision. The document provided that safe work procedures ‘should be prepared by employers with the help of employees to care for the special needs of young and inexperienced workers’. The material under this heading also included:
It is the employer’s responsibility, as far as possible, to provide a safe working environment, which includes:
·safe plant and equipment;
·safe protective equipment;
·manual handling aids if necessary; and
·rest or exercise breaks during tiring or repetitive tasks.
The next heading in the manual handling document was ‘Safe Work Procedures’. Under this heading it was stated:
It is the employer’s responsibility to provide you with safe work procedures, and with education, training and supervision for manual handling tasks.
Also under this heading, buried in the middle of a seven-line paragraph, was a statement about which the applicant was cross-examined:
As a rough rule of thumb, persons should not lift unassisted weights greater than about 20 kg.
Finally (so far as the manual handling document is concerned) under the heading ‘Dos and Do Nots’, the following appeared:
DOS
Bend the knees but not beyond a right angle.
Keep the back straight but not vertical.
Lift using the strong thigh and calf muscles.
Keep the centre of gravity of load and body in line with the feet.
While carrying, clasp the load close to the body.
DO NOTS
Do not turn the body or head while lifting. Lift and then pivot on feet.
Do not jerk or snatch. Slowly accelerate the load.
Do not use the weak back muscles to lift.
Going back to the cross-examination of the applicant, the applicant was asked and answered the following questions:
Just above ‘Dos and don’ts’, it says this, ‘Statistics show that most of the victims of back strain are below the age of 20 or above the age of 60. This points to inexperience and lack of supervision and training in the former group and to an accumulation of minor damage and decreasing physical resilience in the latter. As a rough rule of thumb persons should not lift unassisted weights greater than about 20 kilograms.’ If this document was given to you, you were told back in 2002 that you should not lift unassisted weights greater than about 20 kilograms?---How I know it’s 20 kilos?
I understand that, and I know you say you weren’t told what the weights were. But you were told at the start not to lift anything greater than 20 kilograms, weren’t you?---Tell me about how many kilos your luggage you are lifting up? How do you know? That’s the main things. When you did the job, you’re doing it, but you don’t ask, ‘How many kilos is that one?’ or ‘How heavy is that one?’ They not tell you. Just you do it.
Mr Aycicek, you are asking a question. You are talking about a matter that I didn’t ask you about. I want you to listen to the question, and answer the question I asked you. You were told at the start of your employment you shouldn’t lift weights greater than about 20 kilograms without assistance, weren’t you?---Yes.
It was suggested to the applicant in cross-examination that, if he needed help, ‘there were plenty of people there who could have offered you help if you asked for it’. The applicant denied this, saying there was no-one there at the time he suffered injury.
When asked whether he knew that lifting a weight of 60 kilograms was a weight that he should not have lifted, the applicant said that he did not know the crate weighed 60 or 65 kilograms:
I didn’t know its 60 kilos or 65 kilos. There’s people doing it before me. They come in, lift it up and put it on the pallet and take it away. When I saw that, then I’ll do it.
As to his knowledge of the weight of the crate, the applicant was asked and answered the following questions:
When you put your hands on it and took the load, did it seem heavy to you?---No, not much.
Sixty to 65 kilos didn't seem heavy to you? And had you been doing this before?---Yes.
How often?---A couple of times a week.
A couple of times a week for three years?---No, last year maybe.
For a year?---When they have their things.
Did you ever see people doing it with two people lifting?---They do two people lifting, they do one people lifting.
Any more?---That's all.
No three people?---No.
And you say ‘I had no idea what it weighed’?---Yes.
Even though you had been told not to lift more than 20 kilograms?---Yes.
The cross-examiner then returned to the topic of whether there were other people present at the time the applicant suffered injury. He admitted that there were two first aid representatives present in the workplace. While in the cross-examination it was suggested that the first aiders are people that the applicant was supposed to ‘report it to’, in this Court it appeared to be suggested by the respondent that the first aiders were people from whom the applicant could have sought assistance to lift the crate.
It was put to the applicant in cross-examination that nobody had told him to lift the crate. He responded, ‘No … but we have to do it. That’s … part of the job’. The following questioning then occurred:
I understand what you say about that. I'm asking you whether you were told to do it?---No one told me.
And no one told you you should lift that sort of weight without assistance, did they?---(Witness nods.)
You are agreeing with me. Could you answer?---If the 65 kilo, we are not allowed to lift it. But - - -
If it was 30 kilos you weren't supposed to lift it, were you?---Even 20 kilos we are not supposed to lift it, but they lift it anyway. That's in the job.
You knew you shouldn't lift more than 20 kilos, did you?---Yes, I know.
Did you ever try and find out what these weights were?---How am I going to find it?
There are scales there in the storeroom?---We are not allowed to go - we are not allowed to put up those things to weight it up.
If you wanted to know the weight of anything you could easily weigh it, couldn't you?---Yes, you can weight (sic) it up.
While the applicant was challenged in cross-examination about his initial induction, the need to seek assistance for lifting weights in excess of 20 kilograms, the availability of fellow workers to provide assistance, and what he knew about the weight of the crate from prior experience, there were a number of matters about which he was not challenged in cross-examination. For example, as was fairly conceded by counsel for the respondent in this Court,[4] the applicant was not challenged on his evidence that there were insufficient trolleys provided by the
respondent at the time he suffered injury; nor was he challenged about his evidence that, after suffering injury, more trolleys were provided.[4]Not counsel who appeared at trial.
Applicant’s re-examination
The applicant was briefly re-examined on a number of topics. Having regard to the cross-examination about the completion of the induction training checklist and the provision of the manual handling document in 2002, the applicant was asked what his standard of reading was back in 2002. He responded:
It was very poor. Very, very poor.
The applicant’s proficiency in English was one of the matters in dispute at trial, and one of the matters said by the respondent to affect his credibility as a witness.
The evidence of the engineer (Mr Dohrmann)
Mr Dohrmann, an expert engineer and ergonomist, gave evidence on behalf of the applicant. His evidence was that he weighed a full crate of fuse boxes at 62 kilograms. There was no challenge to this evidence. Mr Dohrmann gave evidence of measures that could have been taken by the respondent to lower the risk of injury, including by performing a manual handling risk assessment and implementing risk controls, such as lifting devices, trolleys and having two workers to lift the full crates.
In cross-examination, Mr Dohrmann said that he did not attempt to lift the crate, because it was far too heavy to lift, although, as he put it, he ‘already had an idea of how heavy it was, of course’. Mr Dohrmann agreed that it would be obvious to anybody that the crate was heavy, and that he did not need a NIOSH equation[5] to tell him that the crate was too heavy to lift, but he had been surprised on many occasions to find that people had lifted very heavy objects without considering that activity to be a problem.
[5]Mr Dohrmann explained what a NIOSH equation was in his evidence-in-chief. As he described it, it is a method of analysis for assessing the risk of lower back injury due to lower back stress associated with certain manual lifting tasks carried out while in a standing posture.
Respondent’s final address
Having regard to the way in which the argument unfolded in this Court, it is necessary to set out some of the respondent’s final address to the jury concerning the state of the evidence and the way in which contributory negligence was put.
In his final address, counsel for the respondent submitted that the applicant’s evidence had been challenged in cross-examination and that it was ‘telling … that not one witness was called to support him from his workplace’. Counsel said:
Not one fellow worker gave evidence to support him. You might say, ‘the defendant didn’t call evidence either’ and that’s true. But remember, it is the plaintiff’s obligation to prove his case, it is not the defendant’s obligation to disprove it.
We would interpolate here that, of course, on the issue of contributory negligence, the respondent bore the onus of proof.
Counsel for the respondent addressed the jury on a number of matters which he said went to the applicant’s credit. The credit issues were said to be very important:
because he is the only witness about the events, the only witness about his injuries, the only witness really about the severity of them. And to be accepted, for him to succeed about this, he must be believed by you as a witness of truth. We say these matters, even though you can see they might look trivial, but they are important.
On the issue of the respondent’s liability for any injury arising out of the lifting of the crate, the respondent’s counsel submitted:
In any event, we say the induction and training assessment shows reasonable behaviour of the defendant, particularly the advice not to lift items weighing more than about 20 kilograms. In answer to that the plaintiff says, ‘Well, I wasn't told how heavy the crates were’.
That's what he says. That's his explanation for it. It is a matter for you, but we submit such a weight should never be lifted and that would have been obvious to the plaintiff, particularly when by 2005 he had been working there for three years, doing that sort of work. He says the training that he received should have warned him not to attempt such a lift.[6] And for him to say the crate is not weighed is just a way, we say, of him trying to blame the defendant for something the plaintiff should have known not to attempt. It is really like saying to a chef, ‘The frying pan might be hot’. We say that is not a reasonable obligation to impose upon the defendant and we say in this regard that — that's in relation to the crates — you should answer the first question no.
Regarding the assembly fuses, this is where the plaintiff relies on Mr Dohrmann. He also relies on him in relation to the crates but we say it is obvious to anybody that those crates are heavy to lift.
[6]The words ‘he says’ appear to be a transcription error. In context, unless counsel misspoke, what was being submitted was that the respondent contended that the training the applicant received should have warned him not to attempt the lift.
In relation to contributory negligence, counsel for the respondent said:
So if you answer any of one of those, yes, we say it is clear from the plaintiff's own evidence that he was to a degree the author of his own injury in relation to the crate incident by attempting to lift a very heavy weight when he knew or ought to have known that it caused a risk of injury to him. He had been told this and we submit to you that he would know this from his general knowledge and experience, having worked there for three years.
Application to set aside jury’s verdict on contributory negligence
After the jury’s verdict, the applicant applied, pursuant to leave granted prior to verdict, to set aside the jury’s verdict on contributory negligence. After hearing argument, the judge dismissed the application.[7] In his reasons for dismissing the application, the judge summarised the competing positions of the parties as follows:
[7]Aycicek v Flowline Industries Pty Ltd [2018] VCC 477.
It was in this context that Senior Counsel for the defendant submitted that the jury’s verdict was consistent with the following finding:
(a)the plaintiff knew, or ought to have known, that he was acting contrary to instructions given at the time of induction in 2002, in that he was not to attempt lifting weights above 20 kilograms by himself;
(b)the plaintiff knew or ought to have known that the weight of the crate, although [he was] not specifically told, was well in excess of 20 kilograms and was therefore unsafe to lift;
(c)the plaintiff could have, and should have, either asked for assistance, and, if none [was] available, leave the weight to be lifted by workers in the next shift;
(d)the plaintiff had never been told to specifically lift such a crate by himself.
Senior Counsel for the plaintiff submitted that, taking the best view of the evidence for the defendant:
(a)the system of a one-man lift of the crates was at least tolerated by the employer;
(b)the system of a one-man lift of the crates was inherently unsafe and consistent with the jury’s answers to Questions 1 and 2;
(c)the plaintiff gave uncontradicted evidence that he had not been told, and did not know, the weight of the crates.[8]
[8]Ibid [13]–[14].
While the judge concluded that a finding of contributory negligence was against the weight of the evidence, he dismissed the application because, as he put it, it was not his role, but rather the role of an appellate court, to set aside a verdict on the ground that it is unreasonable or against the weight of the evidence.[9] In so concluding, the judge followed what had been said by McHugh J in Naxakis v Western General Hospital,[10] namely:
When the defendant submits that there is no evidence to go to the jury, he or she raises a question of law for the judge to decide. The question for the judge is not whether a verdict for the plaintiff would be unreasonable or perverse but whether the plaintiff has adduced evidence which, if uncontradicted, would justify and sustain a verdict in his or her favour. An appellate court may later be able to set aside the verdict on the ground that it is unreasonable or against the weight of the evidence. But the function of the trial judge is more circumscribed.[11]
[9]Ibid [22]–[23].
[10](1999) 197 CLR 269.
[11]Ibid 282 [40]. See also Hocking v Bell (1945) 71 CLR 430, 440–1.
Immediately we should say that, while the conduct of (and submissions made in) the application to set aside the jury’s verdict throw light on the way in which the case was conducted by the parties at first instance, there is no appeal from the judge’s dismissal of that application. An appeal from the judge’s refusal to set aside the jury’s verdict would, in the circumstances of this case, have been otiose for similar reasons to those given by this Court in Kiriwellage v Best & Less Pty Ltd.[12]
[12][2013] VSCA 355 [15].
What did the evidence disclose was the respondent’s system of work?
Before one can determine whether or not it was open to the jury to find that the respondent had established that the applicant was guilty of contributory negligence, it is necessary to determine what (if anything) the evidence disclosed was the respondent’s system of work in relation to the work the applicant was performing when he lifted the crate.
In its written case in this Court, the respondent submitted:
The applicant’s admission that he knew the respondent prohibited its workers from lifting weights greater than 20 kilograms without assistance meant that the significance of the manual handling document fell away.
In oral argument, counsel for the respondent said that the system of work was, ‘you shouldn’t lift 20 kilos without assistance’; alternatively, ‘you were told not to lift 20 kilos without assistance’.
Plainly, the context and circumstances in which the applicant was ‘told’ that he should not lift more than 20 kilograms without assistance is critical to the question of whether a breach of such a direction or instruction was capable of amounting to contributory negligence.
The evidence relied upon by the respondent to support the system of work for which it contended in this Court came from its cross-examination of the applicant. Consistently with the way the respondent’s case had been pleaded and opened at trial, the relevant cross-examination commenced with questions about the statement on page 3 of the manual handling document that:
As a rough rule of thumb persons should not lift unassisted weights greater than about 20 kilograms.
It was put to the applicant in cross-examination that, by the provision of the manual handling document (containing this statement), the applicant was:
told at the start of [his] employment [he] shouldn’t lift weights greater than about 20 kilograms without assistance.[13]
[13]Emphasis added.
The applicant eventually acquiesced to that suggestion. The cross-examination then built on an acceptance that the applicant had been told that he should not (or that he was not to) lift weights greater than 20 kilograms without assistance.
To the extent that subsequent questions in cross-examination seemed to elevate the factual foundation from ‘a rough rule of thumb’ to some direction or system of work, the cross-examination might have been objected to. It may be, however, that trial counsel for the applicant[14] did not perceive that there was any difficulty with the cross-examination or risk that the jury might have been misled into thinking that there was evidence external to the manual handling document of some direction or system of work that required the applicant to seek assistance before lifting something that weighed in excess of 20 kilograms.
[14]Not counsel who appeared in this Court.
There can be no doubt that this Court should not interfere with the jury’s verdict unless the applicant has made out an ‘exceptionally strong case’, and one where ‘the evidence so preponderates against the verdict as to show that it was unreasonable and unjust’.[15] Great respect must be given to the jury’s verdict, and this Court must not substitute the answer that it might have given to the question asked of the jury. Moreover, as has been said many times before, due deference must be given to the advantage enjoyed by the jury in hearing and seeing the witnesses give evidence. In considering the question of whether or not it was open to the jury to find contributory negligence, this Court is required to assume that the jury took a view of the evidence most favourable to the respondent consistent with the verdict it returned.[16]
[15]Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 42 (Mason CJ, Deane, Toohey and McHugh JJ).
[16]Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 222 (Dawson J), 227–8 (Toohey J) and 239 (McHugh J); Fassbender v HW & MTA Bohlmann [2010] VSCA 204 [19] (Warren CJ and Emerton AJA) and [75] (Nettle JA).
The fact that the jury enjoyed an obvious advantage over this Court in seeing and hearing the witnesses, and the requirement of this Court to assume that the jury took a view of the evidence most favourable to the respondent consistent with the verdict it returned, cannot however absolve this Court from its responsibility to look at the whole of the evidence in the context of the trial in which that evidence was given. This Court is not limited to looking at individual pieces of evidence (in this case, answers in cross-examination) devoid of context, for the purpose of seeing whether one or more answers, given some literal meaning out of context, might be capable of supporting the verdict.
By reference to questions and answers in cross-examination of the applicant, where it was put by the cross-examiner, and accepted by the applicant, that he was told that he should not lift weights in excess of 20 kilograms without assistance, it was submitted in this Court that it was open to the jury to find that this was the respondent’s system of work; the respondent had been so instructed at the commencement of his employment; and, notwithstanding instruction, the applicant breached the system of work. So it was submitted on behalf of the respondent that ‘the significance of the manual handling document fell away’.[17]
[17]Written case for the respondent, [19].
The answer to those submissions is that such a case (of some instruction in a system of work at the commencement of the applicant’s employment) was neither pleaded by the respondent (either in its defence or, more precisely, its particulars of contributory negligence), nor opened by the respondent,[18] nor squarely put in cross-examination by the respondent to the applicant. Moreover, no evidence of any such kind was led by the respondent. At its highest for the respondent, the evidence was that such system of work as the respondent provided to the applicant involved no more than general instructions about manual handling, including the proposition that:
As a rough rule of thumb, persons should not lift unassisted weights greater than about 20 kg.
[18]As we have already observed, what was opened by the respondent to the jury was that the applicant ‘was told not to do heavy lifting in that manual [being the manual given to him in 2002: that is, the manual handling document]’.
To the extent that the respondent submitted that it was open to the jury to find that the respondent had established contributory negligence on the basis that the applicant failed to comply with a direction that he not lift without assistance and/or breached a system of work that required him not to lift without assistance, that submission must be rejected. That, however, is not the end of the matter. It is necessary now to look at whether, irrespective of the system of work, the jury’s finding of contributory negligence can be supported (in the sense that it was open to so find) on the basis that the applicant knew or ought to have known that the crate was too heavy for him to lift without placing himself at an unreasonable risk of injury.
Was the finding of contributory negligence open?
The applicant’s evidence was that he did not know what the crate weighed when he lifted it from its position on top of the second crate in order to place it on the floor. He also said that he had done this many times before, and had seen others doing the same. His evidence was, in effect, he was just doing his job, the same way he and other fellow employees had been doing it for at least a year without any complaint or admonition by the respondent.
The respondent submitted that the credibility of the applicant was in issue at trial, and that the applicant’s evidence has to be evaluated on the basis that it was open to the jury to find that his credibility had been successfully impugned. So much may be accepted as a broad proposition. The question is the extent to which the applicant’s credibility could have in fact been impugned in the light of the jury’s verdict.
The jury accepted the applicant’s evidence that the respondent was negligent and in breach of the Regulations. It also accepted that that negligence and those breaches of the Regulations were a cause of injury to the applicant, whose damages the jury assessed at $585,000 (the economic loss component of which was in excess of $200,000 more than the applicant’s claimed economic loss to the date of trial).[19]
[19]The jury awarded $437,000 for economic loss. In his final address, counsel for the applicant told the jury that the applicant’s economic loss to the date of trial was $226,000.
Put shortly, while the applicant’s credit may have been in issue at trial (in respect of a number of matters which the respondent’s senior counsel accepted in his address to the jury ‘might look trivial’), it cannot realistically be contended that this Court should now proceed on the basis that evidence given by the applicant that was uncontradicted might have been substantially rejected by the jury. Plainly, the jury, by its verdicts on negligence and damages, accepted the applicant as a witness of substantial truth.
The respondent bore the onus of establishing contributory negligence. It called no evidence from any witness capable of contradicting the applicant’s account of the system of work, and how other employees routinely performed the work he was performing when he lifted the crate. Taking the evidence at its highest for the respondent, the jury was entitled to conclude that the applicant knew that the crate was heavy, and perhaps very heavy, when he went to lift it from its position on top of one crate so as to place it on the ground. The lift, however, was a very short lift, done in circumstances where the applicant and fellow employees had, according to the unchallenged evidence of the applicant, done the same many times before. Moreover, the applicant’s evidence about the lack of trolleys (and the provision of additional trolleys after he suffered injury) was both unchallenged in cross-examination and uncontradicted by any other evidence.
It was not open to the jury to conclude other than, at the time he lifted the crate, the applicant was merely doing the job he was required to do; a job he had done many times before in the same manner; and using an action he and others had used many times before without any complaint by the respondent.[20]
[20]As to which, see Davies v Adelaide Chemical & Fertiliser Co Ltd (1946) 74 CLR 541, 551 (Dixon J); Commissioner for Railways v Halley (1978) 20 ALR 409, 412–3 (Stephen J); Illiopoulos v Victorian Railways Board (1981) 55 ALJR 668, 672 (Gibbs CJ).
As to the respondent’s suggestions that the applicant could have weighed the crate before lifting it (albeit one might wonder how the crate might be weighed by the applicant without first lifting it and taking it to a set of scales), seeking assistance from first aid representatives present in the workplace, or waiting until the end of his shift to obtain assistance from another worker, at best these might be described as mere inadvertence, inattention or misjudgement. In personal injury in the course of employment cases, the law has long recognised the distinction between contributory negligence on the one hand and mere inadvertence, inattention or misjudgement on the other hand. In Podrebersek v Australian Iron and Steel Pty Ltd,[21] the High Court (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) said:[22]
It was correctly submitted that the issue of contributory negligence had to be approached on the footing that the respondent [employer] had failed to discharge its obligations to take reasonable care, and that in considering whether there was contributory negligence on the part of the appellant [worker], the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant’s conduct amounted to mere inadvertence, inattention or misjudgement, or to negligence.[23]
[21](1985) 59 ALJR 492.
[22]Ibid 493.
[23]See also McLean v Tedman (1984) 155 CLR 306, 315 (Mason, Wilson, Brennan and Dawson JJ); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 310 (Mason, Wilson and Dawson JJ); Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 843-4 [18] (Gleeson CJ, McHugh, Hayne, Callinan and Heydon JJ).
It follows that, in our view, it was not open to the jury, alternatively it was unreasonable for the jury,[24] to make a finding of contributory negligence in this case. That finding must be set aside.
[24]See Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 379 (Dixon J); Hocking v Bell (1945) 71 CLR 430, 442 (Latham CJ); The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 32 [133] (Gillard AJA). See also Swain v Waverley Municipal Council (2005) 220 CLR 517, 521–2 [8] (Gleeson CJ).
The apportionment
Having regard to our conclusion in respect of ground 1, it is not necessary to consider the applicant’s complaint about the jury’s apportionment of liability. That said, even if we had accepted that there was some breach of the respondent’s system of work by the applicant and that the applicant knew or ought to have known that it was unsafe to lift the crate and that his conduct was more than mere inadvertence, inattention or misjudgement, we would almost certainly have held that an apportionment as high as 38 per cent was unreasonable in all the circumstances. It is not, however, necessary for us to say anything further on this issue.
Conclusion
Leave to appeal will be granted, the appeal will be allowed, and the jury’s finding of contributory negligence will be set aside.
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