Colonel Clints Bargain Stores Pty Limited T/as Clints Crazy Bargains v Molero
[1996] FCA 1198
•8 Nov 1996
CATCHWORDS
NEGLIGENCE - employee injured - employer's duty of care - employer's liability - whether risk of injury was foreseeable - whether there was appropriate instruction and or supervision - employee's contributory negligence - adequacy of award of damages - credit of appellant - discount for contingencies of life
Trinidade & Caine, Law of Torts in Australia
Luntz, Assessment of Damages 3rd Edition
Law Reform (Miscellaneous Provisions) Act 1955 (ACT)
Abalos v Australian Postal Commission (1990-1991) 171 CLR 167
Wyong Shire Council v Shirt (1980) 146 CLR 40
Australian Telecommunications Commission v Parsons (1985) 59 ALR 535
Heffernan v Occidental Minerals Corporation of Australia (1978) 2 NSWLR 412
Vincent v Faehrmann (1979) 21 SASR 503
Paull v Gloede (1979) 21 SASR 526
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Kondis v State Transport Authority (1984) 154 CLR 672
Bailey v D P Kirk Pty Ltd (1990) 102 FLR 76
Arthur v Commonwealth (1992) 108 FLR 206
Steele v Twin City Rigging Pty Ltd (1992) 114 FLR 99
Griffiths v Kerkmeyer (1977) 139 CLR 161
Bressington v Commissioner for Railways (1947) 75 CLR 339
Smith v Broken Hill Pty Ltd Co (1957) 97 CLR 337
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Raimondo v South Australia (1979) 23 ALR 513
McLean v Tedman (1984) 155 CLR 306
Purcell v Watson (1979) 26 ALR 235
Pennington v Norris (1956) 96 CLR 10
Devries v Australian National Railways Commission (1993) 177 CLR 472
Layt v Marhaba (Federal Court of Australia, unreported,
20 May 1996)
Koeck v Persic (ACT Supreme Court, unreported, 26 March 1996)
No ACT G6 of 1996
COLONEL CLINTS BARGAIN STORES PTY LIMITED
t/as CLINTS CRAZY BARGAINS Appellant
- and -
CHRISTINA MOLERO Respondent
O'Loughlin, Higgins, Madgwick JJ
Canberra
8 November 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No ACT G6 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
B E T W E E N:
COLONEL CLINTS BARGAIN STORES PTY LIMITED t/as CLINTS CRAZY BARGAINS
Appellant
- and -
CHRISTINA MOLERO
Respondent
MINUTES OF ORDER
Coram: O'Loughlin, Higgins, Madgwick JJ
Place: Canberra
Date: 8 November 1996
THE COURT ORDERS THAT:
In relation to the cross-appeal, the Court increases the assessment of the plaintiff's damages by $10,000.00 to $645,691.81.
The cross-appeal is otherwise dismissed.
The Court finds that the respondent was guilty of contributory negligence.
The damages are to be reduced by 10 per centum on account of such contributory negligence.
The appeal is otherwise dismissed.
There will be judgment for the respondent for $581,121.90.
The appellant is to receive credit against the judgment sum for:-
(a)all worker's compensation made to or for the respondent since 3 May 1991 and
(b)any amounts paid by way of part-payment of the judgment appealed from.
The parties should bear their own costs of the appeal and the cross-appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No ACT G6 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY
B E T W E E N:
COLONEL CLINTS BARGAIN STORES PTY LIMITED t/as CLINTS CRAZY BARGAINS
Appellant
- and -
CHRISTINA MOLERO
Respondent
REASONS FOR JUDGMENT
Coram: O'Loughlin, Higgins, Madgwick JJ
Place: Canberra
Date: 8 November 1996
O'LOUGHLIN J: I have had the benefit of reading a draft of the reasons of Madgwick J. His Honour has stated the relevant facts and I do not find it necessary to repeat them.
Although I share his Honour's conclusions on the questions of the employer's liability and the employee's contributory negligence, there are aspects of this case upon which I desire to comment.
The first of these matters is the question relating to the findings of the learned trial judge on the issue of the employer's liability. With respect, I am not persuaded that the learned trial judge fell into error when considering the matter.
The statements from the judgment of her Honour that have been criticised by counsel for the employer are not to be read as general statements of the law, but rather as discrete observations on the facts of this particular case. It is clear in my opinion, from a reading of the judgment, that her Honour came to the conclusion that it was incumbent on the employer to ensure that there was a safe system of work within which the employee could perform her duties. That was the context in which her Honour said that an employer has a non-delegable duty of care towards its employees to provide a safe system of work. I have further come to the conclusion that her Honour did not err when assessing the nature and extent of the duty of care that had been breached. Having regard to the facts of this case, there was, in my opinion, evidence available to enable her Honour to make the following findings:-
-the employer was under a duty to provide a safe system of work
-the employer failed to provide such a system
-particulars of the employer's failure were:-
-the failure to instruct the employee as to the manner in which the job should be carried out
-the failure to provide competent fellow employees to assist her in her task
-the failure to supervise adequately and ensure that warnings and instructions were heeded.
Each of those assertions had been advanced by her Honour as examples from earlier authorities of employers who had been found liable to their employees. These examples, as it so happened, also fitted the circumstances of this case.
Her Honour was alert to the fact that the question on the issue of foreseeability was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury:-
"It was the risk of injury arising from the defendant's operations which was required to be reasonably foreseeable, not the risk of injury arising from the failure to adopt any particular alternative."
(Abalos v Australian Postal Commission (1990-1991) 171 CLR 167 per McHugh J with whom all other members of the Court agreed).
In Abalos v Australian Postal Commission (supra) at 180 McHugh J referred to the well-known remarks of Mason J (as he then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:-
"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. The perception of the reasonable man's response 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
Thereafter, McHugh J added:-
"The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury. If it did, the plaintiff was exposed to an unnecessary risk of injury if the injury was reasonably avoidable and in all the circumstances the failure of the defendant to eliminate the risk was unreasonable. In the present case, as her Honour found, the system gave rise to a reasonably foreseeable risk of injury. That risk could have been avoided by redesigning the system. But her Honour found that it could also have been avoided by proper supervision."(p180)
In my opinion her Honour correctly identified the foreseeable risk when she referred to the conduct of the employer in requiring the employee to move the heavy table in these terms:-
"In my opinion, there was a foreseeable risk, in circumstances where an employee was required to move a heavy table laden with boxes, approximately two of which were out of their packages and standing upright on the table, that when the table was moved, the boxes would tumble off and cause injury to the employee."
That finding meant that the employee had been exposed to an unnecessary risk if the injury was reasonably avoidable and if, in the particular circumstances of this case, the failure of the employer to eliminate the risk was unreasonable. As to that, the learned trial judge found against the employer on both issues. Her Honour held that the employer should have taken account of the likelihood that a young untrained employee would or might be inadvertent; it should have taken care to avoid such a risk and it could have done so "in a number of simple ways. Appropriate instruction and supervision were two obvious methods of do so".
The findings of fact that were made by her Honour were open to her on the evidence and those findings lead, without difficulty, to the conclusion that the employer had breached a duty of care that it owed to its employee. The youth of the employee, the short period during which she had been employed, the fact that the operation of moving the table was not part of her normal duties and that she was doing it for the first time, all pointed to a system of work and to a duty being imposed on her employer to ensure that she was made aware of the risks that were involved in the combined action of pushing and pulling a heavily laden table.
The second matter to which I wish to make reference is the subject of apportioning damages for past and future non-economic loss. There is no doubt that a plaintiff's loss is one and indivisible as it accrues at the date of the accident: Trinidade & Caine, Law of Torts in Australia p485. However, as the learned authors proceed to explain, damages, when assessed at trial are often divided into pre-trial and post-trial components. An example where that two-stage method of assessment was approved is the decision of a Full Court of this Court in Australian Telecommunications Commission v Parsons (1984-1985) 59 ALR 535. That case, which dealt with an appeal from the Supreme Court of the Northern Territory, arose as a result of a fatal injury. The Full Court, in its judgment noted, with apparent approval, that the appellants had conceded "that a two stage process of assessment is conventional in personal injury litigation".
However, the appellants challenged the use of the two-stage approach in a claim under Lord Campbell's legislation except for the limited purpose of the calculation of interest before judgment in those jurisdictions where such interest may be claimed. As to that proposition, the Full Court said:-
"In our opinion, the learned judge was correct in adopting a two stage method of assessment. The propriety of such an approach has been assumed, if not squarely decided, in a number of the authorities in this area, including at least three decisions of the Supreme Court of the Northern Territory handed down between 1979 and 1982 by Muirhead J, Gallop J and Forster CJ respectively. It will be sufficient to refer to only two decisions of the High Court. In Jacobs v Varley (1975) 9 ALR 219, although the court was divided on the ultimate fate of the appeal, there was no suggestion by any justice that the Full Court of the Supreme Court of South Australia erred in adopting the two stage method in a claim under Lord Campbell's legislation. Although in dissent, Gibbs J(as he then was) said (with the concurrence of Stephen J (at 223-4): "In assessing damages in the present case it is first necessary to compensate the dependants for the loss of the benefit which they might reasonably have expected to derive during the period from the date of death to the date of trial ... The second period to be considered in the making of an assessment is that commencing with the date of the judgment."
Of the majority who favoured dismissal of the appeal, the reasoning of Mason J at least assumed that the Full Court's technique was appropriate. His Honour's analysis of the Full Court's assessment of loss, first, up to the trial, and, then, after the trial, was consistent only with his approval of such an approach (at 229, 231).
More recently, the question arose for consideration in State Government Insurance Office (Qld) v Biemann (1983) 49 ALR 247 in the context of a claim for interest in an action under Lord Campbell's legislation. The trial judge had awarded interest pursuant to s 72 of the Common Law Practice Act 1867 (Qld) both on the amount representing loss of dependency to the date of trial and that representing future loss of dependency. It was held by the High Court that, on the true construction of s 72, the discretion to award interest should be exercised in fatal accident claims as in personal injury actions, so as to draw a distinction between detrimental consequences suffered before the date of trial and those suffered thereafter. Accordingly, under s 72 and legislation indistinguishable from it, the trial judge should split an award into parts; one representing loss of dependency before trial, the other representing loss of dependency after that date. Interest (at half the current short term rate) should only be awarded on the amount representing loss before trial."(pp540-541)
Quite apart from the interest factor other reasons that favour discrete awards for past and future non-economic loss are the relative certainty of the past and the uncertainties of the future. At the time of assessment, a trial judge will have the opportunity of assessing the actualities of the past. They are, when compared with the future, real. They have happened. All too often that relatively easy task becomes one of difficulty when dealing with the future. The exigencies of the future will, most often, call for some weighting or discounting in the award of damages for future non-economic loss. See also: Heffernan v Occidental Mineral Corporation of Australia (1978) 2 NSWLR 412; Vincent v Faehrmann (1979) 21 SASR 503; Paull v Gloede (1979) 21 SASR 526; Luntz, Assessment of Damages 3rd Ed pp58,486.
In my respectful opinion, the particular circumstances of this case justified the method adopted by her Honour.
There remains the question of costs. Each party enjoyed a measure of success. The employee enjoyed a small increase in the quantum of her damages for past economic loss. The employer, on the other hand, was successful in obtaining a small contribution by way of a finding of contributory negligence. In dollar values, the employer was the more successful of the two. However, I do not think that the financial consequence should be the predominant factor; it is merely a factor to be taken into account. It seems to me that neither party succeeded to an extent that would overwhelm the success of the other. In those circumstances it would, in my opinion, be appropriate to order that each party pay its and her costs of and incidental to the appeal and cross-appeal.
I agree with the orders proposed by Madgwick J.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin
Associate:
Date: 8 November 1996
Counsel for the appellant : Mr B J Gross QC
Solicitors for the appellant : Mallesons Stephen
Jaques
Counsel for the respondent : Mr K J Crispin QC
Solicitors for the respondent : Clayton Utz
Date of Hearing : 25 June 1996
Date of Judgment : 8 November 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 6 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:COLONEL CLINTS BARGAIN STORES PTY LIMITED t/as CLINTS CRAZY BARGAINS
Appellant
AND:CHRISTINA MOLERO
Respondent
REASONS FOR JUDGMENT
Coram: O'Loughlin, Higgins, Madgwick JJ
Place: Canberra
Date: 8 November 1996
HIGGINS J: I have had the advantage of reading, in draft, the reasons for decision of Madgwick J. His Honour has set forth the material facts of the matter and the findings of Beazley J with respect to the matter. I will not repeat them.
Criticism was made of various aspects of her Honour's judgment including her findings as to the existence of and the formulation of the duty of care by an employer to an employee and as to contributory negligence. On those issues I regret that I differ from his Honour, Madgwick J, and would therefore propose some observations of my own.
As to the existence and formulation of the duty of care by an employer towards an employee.
The duty is to take all reasonably practical steps to protect the employee from any foreseeable risk of injury.
Her Honour formulated that duty, at 45, with the circumstances of this case in mind, in the following terms,
An employer has a non-delegable duty of care towards its employees to provide a safe system of work.
That was recognised by her Honour as an aspect of the more general duty of care stated by Windeyer J in Vozza v Tooth & Co Ltd (1964) 112 CLR 316, see also Kondis v State Transport Authority (1984) 184 CLR 672.
Her Honour then referred to several ways in which an employer might breach the duty of care so formulated.
These were,
·failing properly to instruct an employee as to the manner in which the job should be carried out;
·failing to provide competent and sufficient staff and/or proper equipment for the job;
·failing to ensure that warnings and instructions were heeded.
It was submitted to her Honour that,
·there was a foreseeable risk of injury in the movement of the heavily laden display table in question when the only means of moving it was for one young woman to push and the other to pull it;
·that risk would have been eliminated by either,
proper instructions to staff to remove or secure stock on tables to avoid dislodgment;
providing tables with wheels so as to avoid dislodgment in movement, or
providing sufficient staff to lift the table and move it so as to avoid dislodgment.
Her Honour found that the risk of injury in moving the table, laden as it was, by the only method open to the plaintiff and her co-worker, was foreseeable.
That finding is, to my mind, self-evidently correct.
The duty to avoid that risk lay on the employer. In some cases it might not call for any further action than reliance on the good sense of the relevant employees.
Her Honour considered, in this case, that if the two young women were to be given the task of moving this display table then it should have been foreseen that, being inexperienced in the task, they might not notice the precarious state of the stock.
That could have been easily averted, in her Honour's opinion by proper supervision or instruction.
It might also have been easily averted by responsible staff not loading the table as heavily as they did and ensuring that it was capable of being moved safely even if two young women, rather than male employees, were to move the table.
That was not done. Her Honour concluded that the defendant's failure so to do was negligent. I agree.
I do not consider that a fair reading of her Honour's judgment obscures or misstates the test to be applied in the circumstances of this case as she found them to be.
In that respect, I differ from Madgwick J. However, I do not differ from the result his Honour proposes on the issue of liability.
Contributory Negligence
The plaintiff's evidence as to her actions and perceptions before the jewellery box fell on her hand was accepted by her Honour, although the plaintiff's credit was otherwise seriously damaged. The relevant portion of that evidence was, at 49,
... you had to open up the shop and we knew that table had to be outside the shop. So we just took it out. It was a routine that every day it had to be done. If I knew that the box was going to do this, I am sure that if I had seen it I would have pushed it back.
She made it clear in further answers that she had not noticed the state of the table in any meaningful way before the jewellery box fell. That the risk existed did not occur to her. She also made it clear that the moving of the table was not something she had had to do before.
That risk, that she would not notice the risk inherent in the state of the stock on the display table, was the very risk it was the defendant's duty to diminish or eliminate by the exercise of reasonable care. It could be inferred that the other inexperienced young woman did not advert to that risk either.
Nevertheless, the defendant raised the issue of contributory negligence. Her Honour's reasons do not address that issue, and, as a result, she made no express finding on that question. Ground 9 of the Notice of Appeal complains of that failure.
It is, therefore, necessary to consider whether the plaintiff's admission as to her own inadvertence to the state of the display table warrants a finding of contributory negligence.
It should be borne in mind that the onus of proof on the issue rested with the defendant. There was no evidence of any prior experience or instruction which would or should have alerted the plaintiff to the risk posed by the state of the table.
The classic test to be applied is that formulated by Mason, Wilson, Brennan and Dawson JJ in McLean v Tedman (1984) 155 CLR 306. In that case a garbage collector was struck by a motor vehicle whilst crossing a road carrying a bin. The collectors took bins from each side of the road to save time. They had not been instructed to take bins only from one side of the road so as to avoid crossing it. The worker failed to observe an oncoming vehicle. Their Honours, at 315, adopted the following approach,
The issue of contributory negligence has now to be approached on the footing that [the employer] failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task. The question is whether that failure should be characterised as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognised distinction between the two. It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account. And the issue of contributory negligence is essentially a question of fact.
The court concluded that the primary judge had correctly characterised the plaintiff's conduct as "mere inadvertence, inattention or misjudgment".
It should be noted that the employer's duty in the present case was to protect the employees against the risk that, by inadvertence, inattention or misjudgment, they might seek to move the display table in question by pushing and pulling it when it was laden with heavy stock stacked unstably.
I had to consider a similar situation in Bailey v D P Kirk Pty Ltd (1990) 102 FLR 76. The employee there had failed to advert to the risk inherent in placing a ladder with rubber stops against the wet surface of a large fuel tank. I there said, at 83,
It was the employer's negligence which created the risk of injury through inadvertence or unwise action on the part of the plaintiff. The plaintiff was clearly absorbed in his duties. He had not previously had to consider the best method of approach to this type of tank. That he did not hit on the safest method spontaneously does not seem to me to amount to contributory negligence ... I am not satisfied that the plaintiff's conduct amounted to more than "mere inadvertence, inattention or misjudgment" ... It was, in fact, the very risk the employer should have foreseen and obviated.
In Arthur v Commonwealth (1992) 108 FLR 206, Miles CJ concluded that an employee's failure to observe water on a floor resulting in her slipping on it did not amount to contributory negligence.
I referred again to this issue in Steele v Twin City Rigging Pty Ltd (1992) 114 FLR 99 where I did find that the employee in question was guilty of a small degree of contributory negligence. That employee was, however, a director of the employer company which itself had contributed only 10% to the negligent injury to the plaintiff. I observed, at 115,
It would be unlikely, if the employer was negligent in not insisting upon safety precautions being taken by employees that the blame could be shifted, even partly, to the employees who were the victims of that negligence ... Of course, that is subject to a consideration of the circumstances. A worker may have unreasonably ignored warnings. A worker may be so experienced and have so misconducted himself or herself that a finding of contributory negligence is warranted. The employee might, also, be the person or one of the persons responsible for devising or enforcing safety precautions.
This plaintiff was injured because she failed to take the precautions her employer should have taken. She did not advert to the need for them. That inadvertence was not the result of any misconduct on her part. She was not experienced in carrying out the task given to her. It was attended by a degree of urgency. She was merely a junior employee who had never before been required to turn her mind to safety issues involved in moving this display table.
On the facts as her Honour found them to be, I am persuaded that there was no contributory negligence on the part of the plaintiff. There was "mere inadvertence, inattention or misjudgment". It follows that, in my view, the defendant's contention that the verdict should be reduced by reason of contributory negligence should be rejected.
Quantum of Damages
On this issue I would respectfully concur with Madgwick J and have nothing to add.
I would, therefore, dismiss the appeal but uphold the cross-appeal varying the judgment appealed from by increasing it to $645,691.81.
The defendant should pay the plaintiff's costs of and incidental to both the appeal and the cross-appeal.
I certify that this and the seven (7) preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Higgins.
Associate:
Date: 8 November 1996
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