Conceicao v Visypak Operations Pty Ltd

[2008] NSWCA 307

New South Wales

Court of Appeal

CITATION:	Conceicao v Visypak Operations Pty Ltd [2008] NSWCA 307
HEARING DATE(S):	11/11/08
JUDGMENT OF:	Beazley JA at 1,13 & 15; Giles JA at 14; Gyles AJA at 2
EX TEMPORE JUDGMENT DATE:	11 November 2008
DECISION:	(1) Appeal allowed. (2) Set aside the trial judge’s award of damages in the sum of $135,765.70. (3) Remit the matter to the District Court for re-hearing on the question of damages. (4) Set aside the costs order made by the trial judge and in lieu thereof order that the respondent pay the appellant’s costs of trial relating to liability. (5) The costs of the first trial relating to damages shall be in the disposal of the judge conducting the new trial. (6) Grant leave to file the cross-appeal out of time if leave has not previously been granted. (7) The cross-appeal is dismissed. (8) The respondent/cross-appellant is to pay the appellant/ cross-respondent’s costs of the appeal and the cross-appeal.
CATCHWORDS:	NEGLIGENCE - Employer and Employee - Employee's appeal on damages conceded - System of work requiring workers to dismount unaided from conveyor belt at height of 550 millimetres - Whether safe system of work - Whether risk of ankle injury by contact with angle iron upon dismounting foreseeable - Whether contributory negligence on part of appellant - Cross appeal by employer dismissed
CATEGORY:	Principal judgment
CASES CITED:	Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 McLean v Tedman (1984) 155 CLR 306 Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492
PARTIES:	Daniel Conceicao (Appellant) Visypak Operations Pty Ltd (Respondent)
FILE NUMBER(S):	CA 40670/07
COUNSEL:	S Norton SC/M Fraser (Appellant) PJ O'Connor (Respondent)
SOLICITORS:	Brydens Law Office (Appellant) Holman Webb (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5283/05
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	5 September 2007

40670/07

BEAZLEY JA
GILES JA
GYLES AJA

Tuesday 11 November 2008

DANIEL CONCEICAO V VISYPAK OPERATIONS PTY LIMITED

Judgment

1 BEAZLEY JA: Acting Justice Gyles will deliver the first judgment.

2 GYLES AJA: The appeal and cross-appeal are in short compass. The appeal has been disposed of by consent. The brief basis for that concession on the part of the respondent was that the judge made a finding that the effect of the injuries had ceased by a certain date. In coming to that view there was no explanation as to several heads of injury which were put and pursued at trial with the support of some medical evidence. Without attempting to be exhaustive about those items, there was the injury sustained in the course of physiotherapy which mainly concerns the hip and the groin, there was also some evidence to support exacerbation of a pre-existing back injury in the jump down; and there was also a question of the effect of dystrophy. Therefore the concession was properly made and it is inevitable in those circumstances that there be a new trial as to damages.

3 The cross-appeal raises two issues. The first is the finding of liability. The second is the omission of the learned District Court judge to make any finding at all about contributory negligence. As to liability, the short facts are not in dispute. The appellant was engaged in work in a factory which was manufacturing plastic bottles. His primary occupation was that of a forklift driver but he was also on relief duties dealing with other aspects of the manufacturing process. One job which had to be done was to check pallets for damaged bottles. The normal process by which that was done was that the pallets would be stopped, would be removed by a forklift truck to the ground and then inspected with the use of a step ladder. When forklift trucks were not available or, I think the evidence would show, not readily available, the system was that the workman would stand on top of the conveyor belt with the pallets still on the conveyor belt and inspect from there. The height of the conveyor belt above ground was 550 millimetres.

4 The appellant on the particular evening had commenced work in the late afternoon and had worked all night. A good part of his shift was taken up with inspection of pallets without the use of forklifts to remove them. This was because there was a shortage of forklifts on that evening and, as he explained in his evidence, it was not practical to wait until a forklift was available before carrying out the inspection as the system required that work continue. When he had been working for many hours he jumped from the conveyor belt, having completed an inspection, and came into contact with an angle iron. He twisted his ankle and that led to the injuries and disabilities for which he seeks compensation.

5 The appellant tendered a report of an expert, which was admitted, and that expert pointed out that for a height of more than 300 millimetres Australian Standard 1657 “Fixed platforms, walkways, stairways and ladders – Design, construction and installation”, required a step. He criticised the safety of the system generally and summed up his opinion by saying that a system of work should have been implemented to ensure the workers were not permitted or required to gain access to the potentially hazardous location on the conveyor belt and should have, for example, ensured that there were an adequate number of forklifts capable of being operated with the production schedule and number of workers present in the factory. He then dealt with another aspect of the matter which proved to be a furphy and then suggested that a set of steps should have been constructed either permanently or to be deployed as and when necessary to provide a safe and secure means by which the workers could gain access to and from the conveyor belt.

6 The fact that the height was 550 millimetres was exacerbated in a practical sense in this case because the appellant is quite a short person. Whether he was short or not, 550 millimetres is not what could be described as an ordinary step and to negotiate that without the benefit of any step or handrail clearly carries with it risks of falling or otherwise injuring oneself. It is not the case here that the plaintiff overbalanced, which is one of the risks, but in my opinion the risk of injuring oneself whilst jumping down from that height to a factory floor was obvious, it was foreseeable and it was preventable by the measures which the plaintiff suggested. The fact that the particular injury was occasioned by coming into contact with an angle iron was well within the range of possibilities, that being one of a number of possible obstructions on a factory floor. Indeed, in my view there was a considerable risk that, over time, people would simply turn over on their ankles when jumping down and suffer that sort of injury for that reason alone.

7 The attack by the cross-appellant first of all concentrates upon what is said to be the inadequacy of the reasons of the trial judge. Certainly those reasons are economical. Nowhere is the foreseeable risk quite clearly stated in the way that I have endeavoured to state it but it does seem to me that it is implicit in the substantive paragraphs of the judgment. I particularly refer to [15], [23] and [24] of the judgment, which are as follows:

“15. It seems to me that the system of work seems to be a particularly poor one that requires the plaintiff to balance himself on the conveyor line rails and he had to do that whenever there were insufficient forklifts to remove the pallet of bottles from the conveyor line.

…


23. What then should I regard this act as, a careless misstep and fall or was it due to the system of work? The plaintiff submits that it was a dangerous system of work. The defendant submits that it was simply a case where, had the plaintiff, who had performed this operation many times before when a forklift was unavailable, been more careful for his own safety he would not have put his foot on the angle iron.

24. I am satisfied that the system that was in operation leading to the plaintiff’s injury was unsafe. I am satisfied that the defendant should have insured that sufficient in service forklifts were available to lift the pallets off the conveyor line, without requiring the plaintiff to have to straddle the conveyor line and then alight from it.”

8 Counsel for the cross-appellant points to several other considerations. The first is that there was no evidence of any other injury being sustained by reason of this secondary system of work notwithstanding the fact that this appellant had done this on very many occasions and it was obviously an endemic part of the system. That is true, but I have pointed to evidence of an expert on the topic of negligence which in my view is perilously close to being so obvious that one would not need expert evidence.

9 Counsel then referred to two discrepancies in the evidence. The first was that the case which had been put by the appellant prior to and at trial was that he needed to jump quickly because of an urgent situation as the next pallet was coming along and may crush him. The plaintiff himself scotched that idea in the course of cross-examination. That may have been a change of case, but it does not destroy the basis for the finding that was made. Whether or not there was an urgency in the jump, the fact was that a jump, not a step, was necessary.

10 The second discrepancy was the evidence as to the position of the angle iron. The expert evidence and the photographs show an angle iron in very close proximity to the conveyor belt assembly and the evidence in chief of the appellant identified that as being the relevant angle iron. However, in the course of his evidence he was quite firm and clear that the angle iron was between two and three feet away. He would not be shaken on that. This is a puzzling discrepancy and raises a question as to precisely how this accident occurred. However, in my opinion it is unnecessary to go further than to note that the judge found that the injury was sustained by contact with an angle iron. In my view it does not matter whether the angle iron was two to three feet away from the conveyor belt assembly or much closer; the possibility of jumping and coming into contact with some obstruction was foreseeable. Thus, although there is weight in the arguments advanced for the cross-appellant I would reject the cross-appeal so far as liability is concerned.

11 The question of contributory negligence is of course more difficult. It is all the more difficult because the trial judge did not advert to it as such in his judgment. However, counsel for the appellant points out that paragraph [23], to which I have already referred, was framed as a choice between the act as a careless mis-step and fall or due to the system of work. It is put for the appellant that, at the most, it would be a careless mis-step or fall and that at the end of a twelve-hour shift, if there were some misjudgment involved in the method of making the jump, then that is the very sort of casual, careless inadvertence which a system of work should guard against: Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301, Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492, and McLean v Tedman (1984) 155 CLR 306. I would not allow the cross-appeal on the issue of contributory negligence as in my view there would be no proper basis for making such a finding.

12 I would thus allow the appeal and dismiss the cross-appeal.

13 BEAZLEY JA: I agree with Acting Justice Gyles.

14 GILES JA: I agree with Acting Justice Gyles.

[DISCUSSION AS TO COSTS AND FORM OF ORDER]

15 BEAZLEY JA: The formal orders of the Court will be as follows:

1. Appeal allowed.

2. Set aside the trial judge’s award of damages in the sum of $135,765.70.

3. Remit the matter to the District Court for re-hearing on the question of damages.

4. Set aside the costs order made by the trial judge and in lieu thereof order that the respondent pay the appellant’s costs of trial relating to liability.

5. The costs of the first trial relating to damages shall be in the disposal of the judge conducting the new trial.

6. Grant leave to file the cross-appeal out of time if leave has not previously been granted.

7. The cross-appeal is dismissed.

8. The respondent/cross-appellant is to pay the appellant/ cross-respondent’s costs of the appeal and the cross-appeal.

oOo