Commonwealth of Australia v Martone, A

Re: COMMONWEALTH OF AUSTRALIA
And: ANTONIO MARTONE
No. ACT G31 of 1990
FED No. 123
Appeal - Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Gallop(1), Jenkinson(2) and Wilcox(1) JJ.

CATCHWORDS

Appeal - finding of negligence by trial judge - power of appellate court to draw inferences from trial judge's findings of primary facts - no new question of principle

Negligence - master and servant - breach of duty of care - foreseeability - previous lifting accidents erroneously found to be identical to the subject cause of action - failure to instruct on safe lifting practices and to supervise lifting duties - no breach of duty of care - relevant principles

Federal Court of Australia Act 1976, s.24, 27, 28(1)(a) and (b)

The Council of the Shire of Wyong v Shirt and Ors (1980-81) 146 CLR 40

Whim Creek Consolidated (NL) v Federal Commissioner of Taxation (1977) 17 ALR 421

Warren v Coombes and Another 142 CLR 531

Taylor v Johnson and Others (1982-1983) 151 CLR 422

HEARING

CANBERRA

#DATE 27:3:1991

Counsel for the appellant: Mr R. Williams

Solicitors for the appellant: Australian Government Solicitor

Counsel for the respondent: Mr D. Wheelahan QC and

Mr G. Richardson

Solicitors for the respondent: Messrs Romano and Co

ORDER

The appeal be allowed;

(2) The judgment for the plaintiff be set aside and,

in lieu thereof, judgment for the defendant with costs.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal by an unsuccessful defendant in an action for damages for personal injuries sustained by the plaintiff in the course of his employment with the Australian Government Printing Office. The action was brought in the Supreme Court of the Australian Capital Territory. The appeal is against the finding of negligence and the quantum of damages awarded.

The facts giving rise to the cause of action as found by the trial judge are that the plaintiff, in the course of his ordinary duties on 23 October 1984, was required by his superior to print 100,000 letterheads on "80 bond, A4 80 grams". The superior told the plaintiff that the paper was in the hallway, at a point whose distance from the machine on which the plaintiff was working the trial judge could not precisely fix. Within the room where the plaintiff was working there were three other printing machines, a guillotine, a plate-maker and benches. To get to the hallway from his own machine the plaintiff had to go past other machines, benches and boxes used for waste and rubbish. The paper in the hallway was stacked in boxes each containing 10 reams or 5,000 sheets. Each box weighed approximately 20 kg or 44 pounds. There was a trolley in the room somewhere, but the plaintiff did not use it. There was not enough room for its use because of the presence of pallets, benches and rubbish boxes. Up to 23 October 1984 the plaintiff had never been instructed to use the trolley to carry the boxes and not to carry the boxes himself.
The plaintiff said in evidence that if he were to carry the paper a ream or two at a time his boss would not have been happy. The trial judge stated that, although this may have been the plaintiff's impression, he was not satisfied that any such attitude had been conveyed to the plaintiff by his supervisor.
The trial judge further found, accepting the evidence of the supervisor, that when a printer had to do a large job he could fill up his machine, which would take about 5,000 sheets, although the maximum usually inserted into the machine would be nine reams (18 kgs or 39.6 lbs) and that it was up to the individual how many reams he would insert in the machine.
The trial judge's findings of fact on the circumstances of the accident were as follows:

"On all the evidence, I am satisfied that the plaintiff picked up a box of paper containing tenreams and weighing 20 kg or 44 pounds without, at that point, feeling any particular discomfort, that he carried that box a distance which may have been as much as 20 metres, that during that carriage he began to suffer discomfort in the lower back, that upon reaching his machine he lifted the box to a higher level and that during the course of that lift he suffered a severe sharp pain in the lower back. I am satisfied that it was at this point that he suffered the onset of the pain which eventually disabled him."

His decision that the defendant was guilty of negligence was expressed as follows:

"In the circumstances, I am satisfied that the defendant was negligent. I do not think it matters that the amount of the paper which the plaintiff might have carried at any one time was not in excess of 20 kgs. He had been injured in exactly similar circumstances before. The defendant should, through its officers, have appreciated that to ask him in effect to continue to lift boxes of that weight or to raise them above waist level or to bend to put them down was to put him at serious risk of further damaging his back."

The plaintiff had suffered earlier injuries while at work and the trial judge's findings of fact in respect of those incidents were as follows:

"The earlier accidents were described in several reports, copies of which were tendered. The 1974 accident was described as follows:_

'Lifting paper from machine bench to platform. (The injury occurred) while lifting paper from machine bench to platform as bending down, hurt myself.'

The injury was diagnosed as strained ligaments in the region of the coccyx. The accident was summarised by the Industrial Officer as follows:-

'Mr Martone was lifting paper from the bench to a platform when he felt a sharp pain in the lower back.' He was sent to the Commonwealth Medical officer who certified him unfit until 12 November 1974. He resumed normal duty on 13 November 1974. He was paid compensation for the period of absence from work.

The 1977 incident was summarised as follows:-

'Mr Martone was lifting paper from the floor to the bench. He felt a pain in his chest.'

He reported that incident to the overseer and to the first aid sister. He was off work for a time but returned on 29 March 1977.
The 1978 accident occurred on 27 February, when he was lifting paper onto a bench from his machine and felt a pain in his back. He reported the incident to his overseer and to the first aid section. He kept on working. He returned to the first aid section next morning and was referred to the Commonwealth Medical Officer. He was diagnosed as suffering from lumbosacral backache with moderate disability as a consequence. He was certified unfit until 13 March 1978. The Personnel Officer summarised the accident as:-

'Mr Martone was lifting a bundle of papers from his machine to the bench. He felt a pain in his back.'

A further accident took place on 13 March 1979 when the plaintiff 'bent down to put paper in the machine'. He reported the accident to his supervisor and to a sister at the first aid section. He was diagnosed by a Commonwealth Medical Officer as having a strained muscle and by a private practitioner, Dr J.H. McCauley, as suffering from lumbar pain. He seems to have resumed work on 20 March 1979.
There can be no doubt that all those accidents happened in the way described. They were all recorded within the Printing Office.
Bringing paper to his machine was part of the work involved. It was usually carried in a box of 10 reams or 5,000 sheets. The plaintiff used to load the paper into the machine a ream at a time. He always carried the paper in quantities of reams, 'ten, nine, whatever' never only a ream at a time even if the reams were loose.
To operate the machine he used first to pick up paper in a box and lift it to a bench, take the necessary reams out of the box, unwrap them and bend down to place the unwrapped paper in a tray some six or eight inches from the floor. Paper from the next ream would be placed on top of the first so that there could be at least 4,000 or 4,500 sheets piled onto the tray. The plaintiff also had to bring solution, made up in five gallon containers, to the machine. After the printing was completed the paper bearing the print would be removed from the machine and placed on a pallet. The pallet would then be loaded on a trolley and taken away. The system which the plaintiff described had been used throughout the time that he was working with the Government Printing Office.
On each of the occasions in 1978 and 1979 when he hurt his back he had been lifting reams of paper."
Between 1979 and 1984 the plaintiff had little difficulty with pain in the back. He did not remember having taken any time off from work during that period.
In amplification of the grounds of appeal 2-5, it was submitted that the trial judge was in error in finding that the defendant was negligent in requiring the plaintiff to lift and carry a weight of 20 kilograms based on the conclusion that the task required of the plaintiff involved a risk of injury to the plaintiff which was foreseeable. For the purposes of that submission the defendant did not dispute that the trial judge had applied the proper test as laid down by the High Court in The Council of the Shire of Wyong v Shirt and Others (1980-81) 146 CLR 40 at 47, namely whether a reasonable man in the defendant's position would have foreseen that its conduct involved a risk of injury to the plaintiff. The trial judge had cited a passage from Shirt's case, including

"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."

In the exercise of its jurisdiction to hear and determine appeals from judgments of the Supreme Court of the Territory pursuant to s.24 of the Federal Court of Australia Act 1976, this Court is to have regard to the evidence given in the proceedings out of which the appeals arose and has power to draw inferences of fact and, in its discretion, to receive further evidence (s.27). It may, in the exercise of its appellate jurisdiction, inter alia, affirm, reverse or vary the judgment appealed from and give such judgment or make such order as in all the circumstances it thinks fit or refuse to make an order (s.28(1)(a) and (b)) (Whim Creek Consolidated (NL) v Federal Commissioner of Taxation (1977) 17 ALR 421).
It was submitted on behalf of the appellant that not only did the trial judge fall into error in the application of the principle stated in Shirt's case but, having regard to findings of fact about the prior incidents, he was in error in holding that the plaintiff had been injured in exactly the same circumstances before he suffered his injury on 23 October 1984. It was submitted on behalf of the appellant that the trial judge found that the incidents in 1974, 1978 and 1979 involved lifting paper whereas in the subject accident of 23 October 1984 there was no lifting involved.
It is clear that the 1974 accident occurred while the plaintiff was lifting paper from the floor to a bench and that the injury sustained was strained ligaments in the region of the coccyx. Likewise, it is clear that in the incident of 27 February 1978 the plaintiff was lifting paper on to a bench from his machine when he felt pain in the back. He was diagnosed as suffering lumbo-sacral back ache. Further, in the incident on 13 March 1979 the plaintiff bent down to put paper in the machine when he suffered a strained muscle in the lumbar area. Each of those three incidents involved bending and lifting reams of paper, but none of them was "exactly similar" to the subject accident.
The trial judge's findings about the circumstances of the 1984 accident are quite specific, namely that the plaintiff had picked up a box of paper containing 10 reams and weighing 20 kilograms without feeling any particular discomfort; he carried the box a distance, which may have been as much as 20 metres, and during that carriage he began to suffer discomfort in the lower back; upon reaching his machine he lifted the box to a higher level and during the course of that lift he suffered sharp pain in the lower back.
In our opinion there is much force in the submission that his Honour was wrong in his finding of fact that in the subject accident the plaintiff had been injured "in exactly similar circumstances before". If that finding of fact is incorrect, his Honour's conclusion that, with its knowledge of the plaintiff, the defendant ought to have realised that the task he had been asked to perform involved a serious risk of injury is difficult to support.
The finding about the previous incident was critical to the conclusion of the trial judge. His Honour accepted that the weight of the paper which the plaintiff was carrying when he suffered his 1984 injury was 20 kilograms, and that the safe maximum lift for 75 percent of healthy workers aged between 18 and 60 years is 24.5 kilograms or 53.9 pounds. As the only act of negligence which was imputed by the plaintiff to the defendant was the defendant's requiring or suffering him to carry a load of 20 kilograms, it was an essential part of the plaintiff's case that the defendant knew, or ought to have known, that he could not carry this lighter load without risk of injury. The trial judge recognised this, holding that the usual situation does not apply when an employer knows, or ought to know, that an employee has from time to time suffered from an injury to his back when lifting. He held that, in those circumstances, the employee ought to be instructed on safe lifting practices and told what is the appropriate maximum weight which he ought to lift and beyond which it would be unsafe to lift. In addition he should be supervised to ensure that he does not lift beyond the recommended weight or engage in unsafe lifting practices.
There is no doubt that, as the trial judge found, the defendant knew of the incidents in 1974, 1978 and 1979. But, as the plaintiff's own evidence established, the plaintiff worked between 1979 and the subject accident in 1984 without complaint. He regularly worked overtime and he performed daily the very task that he was performing at the time of the 1984 accident. As he said in evidence, he "always" lifted the paper by hand. He had no difficulty in carrying out these duties. He made no report or complaint of back problems, or difficulties in lifting, to any superior.
The defendant-appellant bears the onus of persuading us that the trial judge's finding of negligence was wrong. But this is not a case where that finding depended upon conclusions about disputed questions of fact, and still less about matters of credit. The defendant's submissions to us accept the correctness of all of his Honour's primary findings of fact and the plaintiff's own evidence in relation to matters which were not the subject of specific findings. In such a situation an appeal court is as well placed as a primary judge in determining what inferences of fact ought to be drawn and their proper legal characterisation (see Warren v Coombes and Another (1979) 142 CLR 531; Taylor v Johnson and Others (1982-1983) 151 CLR 422.)
As we have indicated, the defendant disputes the accuracy of the trial judge's finding that the earlier injuries were sustained "in exactly similar circumstances". It is clear that, as a literal statement, his Honour's description cannot be sustained. There were relevant dissimilarities in the circumstances. The plaintiff first felt pain in 1984 whilst carrying the load of paper; so far as the evidence reveals he may not have lifted it above the level at which it was stacked; whereas on the earlier occasions it seems that he actually lifted the paper before experiencing any pain. More importantly, there were differences in the site of the injuries. So far as the scanty evidence revealed, the 1974 incident involved the coccyx, the 1972 incident the chest, the 1978 incident the lumbo-sacral region, and the 1979 incident "the lumbar area". The subject injury was a prolapse of the L4-L5 disc; perhaps this was the subject of the 1978 or 1979 injury or both of them.
However, we accept that there were also some similarities between the various incidents. All of them occurred whilst the plaintiff was bearing the weight of a load of paper. All of them involved ligament damage. Anybody who reviewed the plaintiff's injury record after the 1979 incident might well have concluded that he would benefit by counselling regarding lifting techniques and/or the judgment of his lifting capacity. If it be the case that the defendant failed to provide any such counselling in 1979, it is arguable that it thereby breached its duty of care to the plaintiff. However, no such case was alleged by the plaintiff. So the facts relating to the 1979 incident were not explored in any detail. In particular, no attention was paid to the circumstances of his return to work on that occasion. We do not know what evidence might have emerged if the plaintiff had based his case on the lack of counselling in 1979. What we do know is that the plaintiff's case against the defendant focussed entirely on the events of 23 October 1984, it being contended that the defendant was negligent in requiring or allowing him to lift 20 kilograms on that day.
As we have said, the plaintiff does not suggest that for an employer to require or allow an adult male employee to lift a 20 kilogram load is, in itself, an act of negligence. The plaintiff calls in aid the earlier incidents, arguing that, in their light, the defendant ought to have known that a 20 kilogram load might occasion him injury. As we have indicated, we agree that this is a necessary part of the plaintiff's case. But, once knowledge of the plaintiff's actual condition becomes relevant, it is necessary to consider the totality of the defendant's knowledge of that matter. Whatever might have been the position if the subject injury had occurred shortly after the plaintiff's return to work in 1979, the fact is that a period of over five and a half years elapsed between that return and the subject injury. During that time the plaintiff carried out exactly the same duties as before, without complaint or apparent difficulty. We think that any observer of the situation, with knowledge of the earlier incidents, might reasonably have concluded immediately prior to 23 October 1984 that the plaintiff's earlier problems had abated. It seems to us to impose upon the defendant a standard of perfection to hold that, on 23 October 1984, its agents should have realised that the plaintiff would be put at risk of injury in doing on that day what he had done without mishap each working day for the past five and a half years.

We would allow the defendant's appeal against the trial judge's finding of negligence. Consequently, it is not necessary to deal with the matter of quantum.
The appeal should be allowed with costs. The judgment entered by the trial judge in favour of the plaintiff should be set aside and, in lieu thereof, there should be judgment for the defendant with costs.

JUDGE2

The questions which this appeal raises for decision and the cardinal considerations upon which resolution of those questions turns are disclosed in the reasons of Gallop and Wilcox JJ. for their conclusion that the appeal should be allowed and judgment given for the appellant. I have had the advantage of reading those reasons, and need not repeat their Honours' statement of the relevant considerations.

The attack on the learned trial judge's finding, in relation to the injury sustained by the respondent on 23 October 1984, that the respondent "had been injured in exactly similar circumstances before", was in my opinion justified. There were dissimilarities of possible significance in the decision of the case. The most obvious was that the symptom evoked by the 1977 incident was "pain in his chest" whereas the symptoms evoked on all the other occasions were in the back. It may be said also that in the incidents of 1974, 1977, 1978 and 1979 pain first occurred when the respondent's back was in flexion whereas in 1984 the onset of pain preceded substantial flexion. But in my opinion a fair reading of the trial judge's reasons for judgment leaves no room for doubt that the similarity to which his Honour's mind was adverting was that in each case the bearing by hand of a burden of about 20 kilograms and the onset of pain had coincided.
On that similarity rested the learned trial judge's conclusion that, as his Honour put it, the "defendant should, through its officers, have appreciated that to ask him in effect to lift boxes of that weight or to raise them above waist level or to bend to put them down was to put him at serious risk of further damaging his back". The validity of the conclusion is in my opinion not brought into question by reason of the circumstance that different levels of the spinal column were specified as the sites of back pain on the several occasions before 1984 when the appellant's officers received reports of incidents associated with lifting. The repetition of incidents of back pain on handling weights lighter than the weight which may safely be handled by most males of the respondent's age would have brought the existence of the risk to the minds of the appellant's officers if they had been exercising reasonable care and skill to protect the respondent from injury, as I would find. I agree also that, as the learned trial judge put it, "in the circumstances the defendant could without any serious inconvenience at all, and certainly at no extra cost, have arranged that the plaintiff be instructed that he was to lift and carry only limited weights of paper at a time by a safe method in which he had been instructed".
The exercise of reasonable care and skill required, as I think, that those instructions be given not later than March 1979. There being no evidence to suggest that any of the respondent's officers at any time considered whether or not any such an instruction ought to be given to the respondent, I do not think that the respondent's performance of his work without back trouble between March 1979 and 23 October 1984 could be regarded as capable of influencing any of the conclusions as to whether instructions should have been given in March 1979 and on each day thereafter until 23 October 1984. The fact that work of the kind which caused injury on the latter date had been performed without back trouble between March 1979 and 23 October 1984 could have relevance, in my opinion, to the question whether reasonable care and skill was exercised only if there were some basis for thinking that the defendant's officers were influenced to refrain from giving to the respondent the instructions the trial judge specified by their perception that he was after March 1979 performing the work without apparent harm to his back. There was nothing in the evidence to suggest any such a perception.
In my opinion the negligence imputed by the learned trial judge to the appellant was comprehended by the respondent's pleading. Paragraph 2 of the amended statement of claim alleges the back injuries of 1974, 1978 and 1979. Paragraphs (a), (b) and (c) of the particulars of negligence under paragraph 6 of the amended statement of claim read:
"(a) Requiring the Plaintiff to carry out work which was too heavy

in the circumstances having regards to the back injuries previously suffered by him.

(b) Requiring the Plaintiff to continue carrying out work when the

Defendant knew or ought to have known that the Plaintiff was susceptible to risks of injuries resulting from the instance which had preceded the incident of 1984.

(c) Directing the Plaintiff to move boxes of reams of paper when

the Defendant knew or ought to have known that the same in the circumstances of this Plaintiff were too heavy." (sic)

I take "instance" to be a slip : the plural was, I think, intended. It may be that the word intended by the author was "incidents".

I would not allow the appeal on any ground relating to the trial judge's conclusion that the respondent's injuries were caused by the appellant's negligence. The other members of the court having taken a different view, it is unnecessary that I express an opinion on the grounds relating to the assessment of damages.

[1991] FCA 123

27 MARCH 1991