Cowie v Gungahlin Veterinary Services Pty Ltd
[2016] ACTSC 311
•25 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Cowie v Gungahlin Veterinary Services Pty Ltd |
Citation: | [2016] ACTSC 311 |
Hearing Date: | 29 March 2016 |
DecisionDate: | 25 October 2016 |
Before: | Mossop AsJ |
Decision: | See [111] |
Catchwords: | APPEAL – NEGLIGENCE – Workplace injury – Appellant working in veterinary hospital – Appellant falls from a stepladder while putting blankets on a high shelf – Whether stepladder defective – Whether wobble in the stepladder materially contributed to the appellant’s fall – Whether magistrate properly applied s 43 of Civil Law (Wrongs) Act 2002 (ACT) – Whether evidence of altered system of work adopted after accident demonstrated failure to take reasonable care – Effect of codes of practice under Work Health and Safety Act 2011 (ACT) – Appeal dismissed APPEAL – COSTS – Cross-appeal costs – Appeal by way of rehearing from Magistrates Court – Calderbank offer – Whether offer must explain the reasons for making the offer – Magistrate’s reasons inadequate – Re-exercise of discretion – Offer made well prior to service of important expert evidence – Unreasonableness of non-acceptance of offer not established –– Cross-appeal dismissed |
Legislation Cited: | Civil Law (Wrongs) Act 2002, ss 42, 43, 44 Court Procedures Rules 2006 (ACT) Workers Compensation Act 1951 (ACT) |
Cases Cited: | Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Aljade and MKIC v OCBC [2004] VSC 351 Urbaniak-Bak v Prail [2014] ACTSC 171 |
Parties: | Shelley Cowie (Appellant/Cross-Respondent) Gungahlin Veterinary Services Pty Ltd t/as Gungahlin Veterinary Hospital (Respondent/Cross-Appellant) |
Representation: | Counsel R Crowe SC, A Muller (Appellant/Cross-Respondent) K P Rewell SC (Respondent/Cross-Appellant) |
| Solicitors Maliganis Edwards Johnson (Appellant/Cross-Respondent) Hall & Wilcox (Respondent/Cross-Appellant) | |
File Number: | SCA 89 of 2015 |
Decisions under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Chief Magistrate Walker Date of Decisions: 24 September 2015, 12 October 2015 Case Title: Cowie v Gungahlin Veterinary Services Pty Ltd Court File Number: CS 1002 of 2013 |
MOSSOP AsJ:
Introduction
This is an appeal against a decision of the Magistrates Court dismissing a claim for damages brought by the appellant, Shelley Cowie, against her former employer, Gungahlin Veterinary Services Pty Ltd. The appellant was injured on 14 April 2012 as a result of falling off a stepladder in the laundry at the Gungahlin Veterinary Hospital. The stepladder in question had three steps. At the time that she fell the appellant was standing on the second step. She was standing on the stepladder so as to put some blankets, referred to as “fluffies”, on a high shelf. When she was standing on the stepladder the shelf was approximately at eye level and, in order to store the blankets, she needed to use both hands to reach up and put the fluffies on the shelf.
A magistrate heard the case on 18 and 19 June 2015 and gave her decision on 24 September 2015 in which she rejected the appellant’s case on liability and gave judgment for the defendant. The plaintiff (who I will refer to as the appellant) has appealed against that decision.
After judgment had been given in favour of the defendant, the defendant made an application for an order for costs on an indemnity basis from the date of a Calderbank offer. Her Honour refused that application, instead, awarding costs against the plaintiff on a party and party basis. The defendant (who I will refer to as the respondent) has appealed against that decision.
Although the appellant’s notice of appeal extended to the quantification of damages, at the hearing of the appeal the parties agreed that if the appeal was allowed in relation to liability then the proceedings should be remitted to the Magistrates Court to address questions of damages, including any updated evidence as to the appellant’s condition and prognosis.
The principles to be applied to an appeal such as this one are described in Urbaniak-Bak v Prail [2014] ACTSC 171 at [51]-[53].
Decision below
Before the magistrate the appellant made claims in relation to two accidents. The first occurred in May 2011 when the appellant was called upon to assist in preventing a large anaesthetised dog from falling from the operating table. In relation to this incident the magistrate found that the appellant had not established that the respondent’s conduct was negligent and dismissed the claim. There is no appeal in relation to that finding.
In relation to the incident on 14 April 2012 in which the appellant fell from the stepladder, the most relevant significant findings of fact in relation to that incident were as follows. I have inserted, for convenience, paragraph numbers into the reasons.
14. As to the incident on 14 April 2012, Ms Cowie said that she was putting the heavy blankets, the fluffies, on the shelves in the laundry where the overflow was stored. She could not reach from the ground and used a stepladder, which she had used many times before. She said that the ladder was old and rickety, and unstable. She noted that one foot had adhesive tape wrapped around it.
15. Ms Cowie said that she had spoken to Ms Stewart about the ladder several times and claimed that Ms Stewart had said that she knew but did nothing about it. She accepted that she did not say that it was dangerous or that she could not work with it. In fact, she continued to do so for 14 months without a problem. Ms Stewart denied that Ms Cowie complained to her about the ladder.
16. Given the fact that Ms Cowie said that she merely complained that the ladder was rickety rather than dangerous and that this was in conversation and in no way formal, I am satisfied that any inconsistency between the evidence of the two women is likely to be the result of differing recall rather than an attempt by either to mislead the court. Given that the ladder was used regularly without incident, the fact that an employee referred to it as “rickety” may not have itself have elicited any particular response from another employee of the defendant.
17. On 14 April 2012, Ms Cowie, alone in the laundry, pulled the ladder out, opened it, placed it against the sink, placed the washing basket on the sink, grabbed the fluffies from the basket and reached to place them on the shelf, she described it, “just to my right.” She said her arms were extended but she was not leaning, other than forward a little bit, as the shelving was further back than the sink. She was on the second step of the ladder when she fell, landing with her right arm up in front of her and hitting her right shoulder. The ladder was on the floor at her feet and the fluffies landed on top of her. She was in pain from her shoulder to her neck, and her hip.
18. The following exchange took place in evidence:
COUNSEL: You’ve agreed with me that you were leaning to the right and that is why you landed on your right side, you agree with that?---Yes.
There was nothing to stop you stepping down the ladder and moving it to the right and then repositioning it, was there?---No.
19. Ms Cowie accepted that she did not need special training to use a stepladder and that she had used one before in the domestic environment. She accepted that she had used the ladder many times before in the workplace also. She agreed that she could place the ladder where she liked in order to access the shelf above the sink. She accepted that she was leaning to the right and fell to the right. She accepted that she could have repositioned the ladder to the right. She did not know quite how she fell off a ladder, just that she fell. She thought the ladder was off balance and she did not personally use it again after that incident. She was aware that there was a different form of ladder but thought it was for use in the treatment room only and not the laundry.
Later in her Honour’s reasons she referred to and summarised the evidence of the two expert witnesses, Ms Sara Bestre, a physiotherapist with experience in workplace safety, called by the appellant and Dr John Culvenor, a consultant engineer specialising in occupational health and safety ergonomics and human factors engineering, called by the respondent.
So far as Ms Bestre’s evidence was concerned, her Honour’s reasons made the following points:
(a)Ms Bestre obtained a Masters degree in Safety, Health and Environment from the University of New South Wales in 2010, but “the relevance of her other qualifications and experience is somewhat tenuous”.
(b)Ms Bestre did not have the benefit of viewing the workplace.
(c)Ms Bestre concluded that an “assessment of the use of the stepladder would have revealed that storing frequently used items above shoulder height was hazardous and likely to eventuate in some sort of injury.” That would have been addressed by arranging for storage at waist height allowing for ease of access.
(d)Ms Bestre concluded that the stepladder was not in good condition and unlikely to have been strong enough to support larger members of staff including the appellant. She therefore concluded that the ladder was not fit for the use to which it was put.
So far as Dr Culvenor’s evidence was concerned, her Honour noted that:
(a)His credentials were particularly impressive both academically and in terms of his extensive experience.
(b)He had the benefit of attending the defendant’s premises and assessing the actual stepladder in question.
(c)He found that it was capable of a load of 150 kg and there was no evidence of structural failure of the stepladder.
(d)The stepladder was stable at all points on the ground relevant to the incident. The issue was more likely to be one of the plaintiff’s stability on the stepladder. He concluded “if the person leans outside the base of support, they will become unstable on the ladder, the same as if standing on the floor.”
(e)“In respect to the blanket storage, he stated that Ms Bestre’s report overstated the danger of shelves and cupboards, and concluded that the restrictions such as she proposed would be both unrealistic and unnecessary.”
(f)“He considered that a proposal that nothing can be stored in any place other than one reachable from floor level overstates the danger of shelves and cupboards commonplace in workplaces and homes alike, and such a restriction would be both unrealistic and unnecessary. He concluded that any person will overbalance sideways if they lean too far.”
(g)“He agreed that it was generally poor practice to have no risk management process at all and that it would be preferable for work to be performed at ground level rather than at height where practicable.”
In relation to the stepladder incident her Honour’s reasons in relation to liability (with paragraph numbers inserted for convenience) were as follows:
52.Ms Cowie has failed to establish that the defendant breached its duty of care. In respect of the latter incident, the defendant did not carry out any risk assessment in relation to the plaintiff’s duties or workplace. She was given no instructions as to how to safely use a stepladder. It was reasonably foreseeable that a person using a ladder might fall off it. The stepladder was not faulty. Ms Cowie has failed to establish that her fall was caused by any structural defect or slippage of the stepladder itself.
53.On the balance of probabilities, it tipped over as Ms Cowie inadvertently overreached to place the fluffies on the laundry shelf. She could have avoided this by relocating the ladder more centrally to the task being performed. Ms Cowie had not been instructed as to how to use the ladder, but no instruction was required because of the simplicity and commonplace nature of the task. In Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177, Taylor J observed:
If one seeks far enough, it is possible to perceive an element of risk in the performance of any task however simple, but the duty of an employer does not extend to guarding against every conceivable risk however remote or fanciful. It is a duty of reasonableness, and that standard cannot be said to have required the appellant so to specify or instruct, and the task upon which the respondent was engaged was of a simple character and not one calling for instruction. Indeed, it is difficult to imagine what sort of instruction the exercise of reasonable care might be thought to have required.
54.I find this last comment particularly apposite to the use of a stepladder in the workplace. More recently, in Laybutt v Glover Gibbs the principle was recognised by the High Court even though the opposite conclusion was arrived at on the facts. As to the use of a ladder, the plaintiff has produced evidence that a storage system which did not require the use of a ladder would have been safer, evidence of which is in fact accepted by the defence expert. There is no evidence before the Court as to why such a storage option was not availed of, whether due to lack of space or some other factor, and to that extent the plaintiff has failed to establish that such an option was in fact reasonable in the context of this business enterprise.
55.Assuming it was an available option, however, the question remains as to whether it was nonetheless reasonable to have a system of work which carried with it some increased risk of injury, that is, the use of a storage facility which involved the use of a stepladder. The defence case in reliance on Dr Culvenor is that despite the elevated risk associated with the use of [a] stepladder the imposition of such a requirement would be unreasonable and unnecessary. This proposition must be tested against the applicable legal principles.
56.In Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1, Kirby P, as he then was, described an employer’s duty to his employee thus:
The scope of the duty owed by an employer has been stated many times, but however restated it amounts to no more than the obligation to take reasonable care to avoid exposing the employee to an unnecessary risk of injury.
57.The plaintiff referred the court to the decision in Czatyrko v Edith Cowan University (2005) 214 ALR 349, in which the High Court restated the non-delegable nature of the employer’s duty of care, the fact that the employer must take reasonable care to avoid a real risk of injury and that the employer must have regard to the possibility of thoughtlessness, inadvertence or carelessness by the employee, particularly in the case of repetitive work. That last principle was earlier expressed in Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, in which the unanimous Court stated:
The employer’s duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury, and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgement by the employee in performing his allocated tasks;
See also Boyded Industries Pty Ltd v Canuto [2004] NSWCA 256, in which Beazley JA reviewed a series of High Court authorities on the employee’s duty of care, including the duty to take account of an employee’s carelessness or inadvertence.
58.Although not an employer liability case, in Swain v Waverley Municipal Council [2005] HCA 4, Gleeson CJ stated the general principle in relation to negligence at paragraph 5:
In legal formulations of the duty on standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm. The standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person both as to foresight of the possibility of harm and as to taking precautions against such harm. Life is risky. People do not expect and are not entitled to expect to live in a risk free environment. The measure of careful behaviour is reasonableness, not the elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.
59.The Court is bound by the legislative provisions in parts 4.2 and 4.3 of the Civil Law Wrongs Act 2002 (ACT). Section 42 sets the standard of care.
60.For deciding whether a person, the defendant, was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in a position of all the information that the defendant either had or ought reasonably to have had at the time of the incident out of which the harm arose. Section 43 provides the general principles for precautions against risk. Section 44 provides inter alia at subparagraph (b) that:
The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done.
61.This is consistent with the principle expressed in Electric Power Transmission Pty Ltd v Cuiuli, in which the court observed that the fact that a large axe could have been used to chop wood as opposed to a tomahawk did not make the provision of a tomahawk for the task unreasonable. The evidence consistent with common sense is that using a ladder, albeit a small step ladder, increases the risk of a fall to some unquantified degree. It is obvious that falls carry varying risk of injury which may extend to serious injury, even if from a small height.
62.The plaintiff has established that she was given no instruction in the use of the ladder, that there was no risk assessment as to its use and that a possible alternative may have been available, but consistent with Dr Culvenor’s evidence it seems entirely unreasonable that any employer should be required to totally eliminate all storage options above ground based reach. I am not satisfied that the defendant has breached its duty of care. I therefore dismiss the claims of negligence in respect to both workplace incidents. I note that given the facts found, had the defendant been liable, I would have made no finding of contributory negligence.
Grounds of appeal
The grounds of appeal are as follows:
1. Her Honour erred in finding that the step-ladder from which the appellant fell was not faulty.
2. Her Honour erred in failing to take into account the finding that the respondent, through Ms Stewart, was on notice that the appellant believed that the ladder was unstable.
3. Her Honour erred in failing to infer that the instability of the ladder probably contributed to the appellant’s fall.
4. Her Honour erred in concluding that there was no evidence of an alternative to the storage of “fluffies” and blankets on the higher shelf in the laundry in the circumstances were the report of Dr. Culvenor demonstrated that there was such an alternative.
5. Her Honour erred in failing to consider the standard of care owed by the respondent by reference to the following-
5.1 the system under which the appellant work required her to repeatedly use the stepladder to place items on the higher shelf in the laundry;
5.2 the ladder was defective in that that the foot of the right-hand style had been replaced by a soft bandage which rendered the ladder unstable;
5.3 there was an acknowledged risk that a busy worker might inadvertently overreach from a stepladder and fall with the potential for serious injury;
5.4 the Work Health and Safety (Hazardous Manual Tasks) Code of Practice 2011 and the legislation under which it was made imposed an obligation on the respondent to-
(1) carry out an assessment of the risk involved in the appellant’s system of work, and,
(2) take reasonable steps to eliminate, or if that was not practicable, minimise the risk;
5.5 the respondent failed to carry out any risk assessment of the system of work requiring the use of the stepladder; and
5.6 the respondent failed to take any step to consider ways in which the risk of a fall from the ladder could be eliminated or minimised.
6. Her Honour erred in failing to apply the provisions of section 43 of the Civil Law (Wrongs) Act 2002 to the determination of whether the respondent had breached its duty of care in the circumstances leading to the appellant’s fall from the stepladder.
7. Her Honour erred in concluding that there was no breach because it would have been unreasonable to require the respondent to have totally eliminated all storage options above ground-based reach.
8. Her Honour erred in her provisional assessment of damages in that-
8.1 the assessment of general damages was manifestly too low; and,
8.2 contrary to Her Honour’s conclusion that damages for future out of pocket expenses, future loss of earning capacity (including superannuation) and future care/assistance was too speculative the evidence required the Court to do the best it could to award amounts reflecting the risk or probability of loss under those heads of damage.
I will deal below with each of the grounds of appeal except ground 8 which, in the light of the agreement between the parties that if the appeal is allowed the matter should be remitted (see [4] above), does not need to be addressed. The agreement in relation to how to address damages avoids the necessity to further consider the further evidence that the appellant would otherwise have sought to have admitted on appeal.
1. Her Honour erred in finding that the step-ladder from which the appellant fell was not faulty
Submissions
The appellant submitted that it was patent that the stepladder was faulty because of the description she gave in her evidence that she found it “rickety” and “unstable”. She submitted that it was not fit for the purpose of regularly and repetitively accessing the higher shelf in the laundry. The appellant also submitted that it was self evident from Exhibits 11 and 12 that the repairing of the ladder with a piece of tape was an inadequate stopgap measure.
The respondent submitted:
(a)The magistrate accepted Dr Culvenor’s evidence in preference to that of Ms Bestre. It was open to the magistrate to prefer Dr Culvenor to Ms Bestre.
(b)Dr Culvenor had inspected the stepladder. The evidence did not establish that the stepladder had been altered in any relevant way since April 2012. Even if the tape on one foot of the stepladder had been replaced, that made no difference as it was, in effect, the same as the stepladder in its earlier condition.
(c)Dr Culvenor had tested the stepladder in each possible position in the laundry and found it to be not unbalanced in normal use, not rickety and not unsafe.
Consideration and conclusion
The plaintiff’s case on appeal was much more focused on establishing fault with the stepladder than it had been at trial. As senior counsel put it on appeal, “[t]his case was really all about the inadequate replacement of the plastic cap which had been designed to go on the foot of the ladder.” On appeal the chain of reasoning by which the appellant principally contended that she should succeed was that at the time of the accident the stepladder was defective in that as a result of the ad hoc repair to the right foot it was subject to wobble and this, more likely than not, was at least a material contribution to the cause of the appellant’s fall. This necessarily involved a challenge to the conclusions reached by Dr Culvenor and this challenge was mounted by reference to the factual contention that the stepladder, at the time that it was inspected by Dr Culvenor in April 2015, was materially different from the stepladder at that time of the accident because the tape on the right foot of the stepladder had been replaced. In contrast, the position adopted by the appellant at trial was less focused on establishing that a wobble caused the fall and more focused on the absence of any assessment of the risks involved in use of the stepladder or any training of the appellant.
The evidence of the appellant that the stepladder was “rickety” was as follows:
I want to ask you about the ladder that you used. How would you describe it?---Old and rickety.
What do you mean by rickety?---It’s not stable. You just have to touch it and it just moves.
What do you mean it moves?---Its unstable, so if you touch it, it sort of leans a little bit.
She was then shown a photograph of the stepladder and asked questions about it and then the video, which became Exhibit 12, was shown. That video shows the appellant wobbling the stepladder when it had no one on it and was in a location other than the location where she used it. The video shows that the stepladder is of lightweight metal construction. The transcript then provides:
Where was the ladder located while you are taking that footage?---It was just in the toilet that’s in the laundry.
What’s the floor surface in the toilet?---I think it’s just lino. A vinyl lino floor. Is it a sloping floor or an even floor?---It’s even.
You were, it in the course of the video, demonstrating moving the ladder with your finger and it moving from side to side?---Yes.
What was your experience of the ladder in your normal use of it, in a day to day sense?---It had always been unstable, but it was just all I had to use.
The sort of movement that you demonstrated in the photo-was that typical of the movement that you experienced when you use the ladder?---Yes.
The plaintiff agreed in cross-examination that there was no structural problem with the stepladder other than her contention that it was “off-balance”. In cross-examination she agreed with the proposition that she had used it “virtually daily” over the 14 months of her employment prior to the accident.
The evidence of Ms Karen Edwards, a veterinary nurse employed by the defendant, was that she was familiar with the stepladder kept in the laundry, had used it “several times” and had “never felt uncomfortable using it, it’s always been stable and yes, I’ve never had any concerns using it at all”. She had no knowledge of any complaints about the stepladder being made to her and it was still being used.
Ms Claire Stewart, the head veterinary nurse employed by the defendant, also gave evidence about the stepladder. She said that although it was not a primary duty she did have to put things away in the laundry area and would have used the stepladder “from time to time”. She did not feel that it was necessary to give the appellant any instructions concerning the use of the stepladder.
Ms Bestre expressed her opinions in relation to the stepladder without the benefit of having examined it. She agreed with the appellant’s description of the stepladder as “rickety”, noted that one foot had been replaced with a bandage and expressed her belief that the appellant, who weighed around 125 kg, would have exceeded the safe working load of the stepladder. The conclusion was that “[t]he stepladder provided was not in good condition and it is unlikely to have been strong enough to support the larger staff members in any case.”
The evidence of Dr Culvenor was that he tested the stepladder in four positions within the laundry including the position in which it was used used at the time of the accident. He found it to be “safe to use in all these places”. In one position – not relevant to the accident – he found that the ladder had a wobble caused by the cross fall grade of the surface of the floor. His report included the following:
These stepladders used in many circumstances, particularly outdoors will often, if not mostly, have imperfections in their footing owing to variations in the surface. … In an indoor environment the circumstances are generally more favourable but considering the use of four-legged ladders a variation in the plane of the order of millimetres is not out [of] the ordinary in the general sense. In my opinion the ladder was usable in all the places shown. It is more solidly supported on all four feet in the first three [positions] beginning from the door. I did not remove the bandage. I did not measure the bandage thickness. Perhaps it was of the order of 1 or 2 mm. The feet provide protection for the vinyl floor covering from the ends of the styles. The bandage achieves the same effect.
He examined the video taken by the appellant and observed (correctly, as the plaintiff’s evidence subsequently disclosed) that it might have been taken in the toilet accessed through the laundry. He made some observations about the likely grading of the floor in that place. He concluded “[t]here is no prospect of [a] flat surface in this place. The reason to demonstrate the footing of the stepladder in that place is not clear.”
One foot of the stepladder no longer had a black rubber or plastic cap visible on it. The cap had been replaced (or possibly covered) by some form of adhesive tape or bandage which was referred to in the appellant’s evidence as “vet wrap”. The evidence established that it had such tape on it at the time of the accident.
On appeal the appellant contended that the tape had been replaced in the period between when the appellant took her video of the stepladder and when Dr Culvenor inspected and tested it. This submission was part of the case theory advanced on appeal that the adhesive tape placed on the right-hand foot of the stepladder was of a such a nature that, when used on the foot of the stepladder, would compress over time so that it would, even if originally supporting the leg at an appropriate level, be compressed to a point which meant that it did not, leading the stepladder to be subject to a wobble. The appellant submitted that the tape had been altered after the appellant’s video and prior to the inspection by Dr Culvenor. The plaintiff submitted that, as a result, less weight could be placed upon the opinion of Dr Culvenor.
In my view the evidence did not establish that there had been any material change in the state of the tape on the foot of the stepladder between the date of the appellant’s video and the date of the inspection by Dr Culvenor.
Although the photographic and video evidence was not of a high quality, it was not apparent from those photographs that there was a change in the tape on the right foot. The stepladder itself was tendered before the magistrate but was not the subject of any evidence or submission to the effect that the observable tape on the right foot was inconsistent with that which appeared in the photographs and hence supporting the contention that it had been replaced
Ms Edwards brought the stepladder to court. In her evidence she said that she did not replace the tape. She had no role in fixing the tape in the first place and did not know why the tape was on the stepladder.
Ms Stewart gave evidence that she was not involved in putting the tape on the stepladder and had no knowledge of the circumstances in which it was put on. She had not looked at the tape until January 2013 when she pulled the stepladder out for the insurer’s investigator. She agreed with the proposition that at the time she saw it, it looked “like new tape and it did not look like that now.”
She gave evidence that both she and her boss had asked all her staff about who had affixed the tape and got no answer which would identify who put it on or how long it had been there.
The evidence that I have referred to provides no direct evidence that the tape on the foot had been replaced. The appellant emphasised Ms Stewart’s agreement with the proposition that the tape looked “like new tape”. However, in my view, that does not provide sufficient basis for a finding that the tape had been replaced between the date of the appellant’s video and the date of Dr Culvenor’s inspection. The distinction drawn in her evidence was between the state of the tape in January 2013 when she showed the stepladder to the insurance investigator and the state of the tape at the time she gave evidence in June 2015. Given the absence of any direct evidence that the tape had been replaced, her answer, which contrasted the state of the tape in January 2013 with the state of the tape in June 2015, was also consistent with the tape looking newer eight months after the accident than three years and two months after the accident.
Even if there had been some replacement of the adhesive tape, the evidence does not establish that it was materially different from the tape that was in place at the earlier time. In particular it does not establish that the depth of the tape at the time of Dr Culvenor’s inspection was greater than that at the time of the appellant’s accident or video so as to be more capable of supporting the foot than it was at the time of the accident.
Therefore I do not accept the appellant’s submission that the tape was materially different at the time of the accident and the appellant’s video when compared with its condition at the time of Dr Culvenor’s inspection in April 2015.
In those circumstances it was clearly reasonably open to her Honour to accept the opinion of Dr Culvenor in preference to the statements made by the appellant. That was not only because of the issue identified by Dr Culvenor as to the grading of the floor, but also because what is shown in the appellant’s video involved the wobbling of the stepladder when no one was on it. Particularly with the ladder being of lightweight construction, conclusions drawn from its behaviour when unloaded are likely to be materially different from the conclusions that might be drawn when it was loaded. Insofar as the appellant’s evidence in chief was that the stepladder behaved in the same manner that it did when unloaded and wobbled in the toilet as when it had the plaintiff standing on it, that evidence was unlikely to be reliable. It certainly did not compel her Honour to reject the conclusions of Dr Culvenor, a well qualified expert.
The appellant has not demonstrated any error by her Honour in reaching the conclusion that the stepladder was not relevantly faulty.
2. Her Honour erred in failing to take into account the finding that the respondent, through Ms Stewart, was on notice that the appellant believed that the ladder was unstable
Submissions
The appellant submitted that the magistrate had implicitly accepted that the appellant had mentioned to Ms Stewart that the ladder was “rickety”. The appellant submitted that this was a matter of significance even though it had occurred in an informal way, because Ms Stewart was a nurse in charge but had paid little attention to the appellant’s comment and was not even aware until January 2013 that the stepladder was missing one of its plastic caps.
The respondent submitted that the appellant conceded that she did not tell Ms Stewart that the stepladder was dangerous or unfit or unsafe for use, but rather continued to use the stepladder for 14 months with no problem or incident occurring during that time. It submitted that the evidence of the appellant, in combination with the evidence of Dr Culvenor, entitled the magistrate to reach the conclusion that she did that the condition of the stepladder did not cause the appellant to fall. Further Dr Culvenor’s evidence was that the condition of the stepladder was not such that it required replacement prior to the date of the accident or afterwards.
Consideration and conclusion
Having regard to my conclusion in relation to ground 1, the issue raised by this ground of appeal is of less significance. That is because if the stepladder was not in any relevant respect faulty, then any complaint by the appellant carries less weight. Nevertheless, I am not satisfied that her Honour failed to give appropriate weight to the notification, by the appellant, of Ms Stewart of her opinion of the stepladder.
This issue was dealt with by her Honour at [15] and [16] of her reasons. Her Honour did not ignore that evidence. In my view, her Honour correctly assessed this evidence. The evidence of the appellant was entirely consistent with the issue being raised in a casual manner and not involving any assertion that the ladder was unsafe or should be altered or replaced. The plaintiff’s evidence was:
Do recall what you’d said to Claire Stewart?---I just said, “Is this what I have to use, the rickety ladder?” And she said, “Yes.”
Was that a conversation that you had on only one occasion?---Several, actually. There was one time that she was in the laundry with me as well and it was kind of a giggle moment actually, because it was so bad.
What do you mean?---Well, we were just-I commented on how bad the ladder was and used the word “rickety”-that’s the word I used.
What you mean by a giggle moment?---Because it is a bit pathetic to have to work on a ladder like that.
When you say “giggle moment”, do you say one or other of view laughed about it?---I think we both did.
During her evidence in chief, Ms Stewart said:
Now, my understanding is that Ms Cowie had been working for approximately 14 months prior to the fall from the ladder? --- Yes, yes.
During that time did you have any conversations with her in relation to the ladder that was in the laundry? --- No, other than where it was and that it was there for use.
Did she make any complaint to you at any stage about the ---? --- Not at all.
--- the state of the ladder? ---Not at all. No.
Are you aware of any other employee that’s made any complaints about the ladder? --- No. No-one has.
She was asked about the conversation again in cross-examination:
Now, you’ve said that there wasn’t a time prior to the incident where Ms Cowie complained to you about the ladder. Are you sure about that? ---100 per cent sure.
See I want to suggest to you that there were a number of occasions, two or three occasions, where she mentioned to you that she thought the ladder was rickety? ---Those words at all don’t come to my mind. I don’t recollect any time that she’s actually approached me about the ladder ---
All right? --- - - -or anything like that at all.
So do I understand that evidence to be that you don’t recall her talking to you about the ladder in those terms? ---I certainly don’t recall and I believe that she didn’t.
All right?--- Yes.
If it was a comment along the lines of that the ladder was rickety, it’s not the sort of thing you would have documented in any way?---If someone had come to me and said it was a rickety ladder, then I would have probably gone to management and told them that there was an issue with the ladder and we would have pulled it out and had a look at it and then obviously decided from there.
Well, that the first thing you might have done, isn’t it? You would have looked at the ladder yourself, and if you thought it was okay - - - ? ---Maybe. Depends on how rickety “rickety” is.
I do not accept that the mentioning by the appellant to Ms Stewart that the stepladder was “rickety” was a matter which her Honour failed to give appropriate weight. There was no complaint of any danger or unsuitability of the stepladder and her Honour was entitled to accept the opinion of Dr Culvenor that the stepladder was not unstable when actually used. In the absence of any relevant instability when the ladder was actually used, the fact that it may have been described as “rickety” by the appellant to Ms Stewart was not a matter which the magistrate was required to treat as significant.
3. Her Honour erred in failing to infer that the instability of the ladder probably contributed to the appellant’s fall
Submissions
The appellant accepted that she was unable to explain what caused the fall. However, she submitted that given the magistrate’s error as to the condition of the stepladder, in the light of a correct finding about the condition of the stepladder, even though it was probable that the appellant over-reached in placing the fluffies on the shelf, the Court should draw an inference that the instability of the stepladder was likely to have contributed to the fall. The argument was that inference should be drawn, in the light of the instability of the stepladder, that it was more likely than not that the stepladder shifted or wobbled as the appellant reached out to the right and that this was at least a material contribution to her fall.
The appellant submitted that the testing by Dr Culvenor in April 2015 was of little assistance because the evidence of Ms Stewart was that the adhesive tape had been replaced in around January 2013 and hence there was no reliable basis for assuming that the state of taping at April 2015 was comparable with its condition at the time of the accident.
The respondent submitted that all the evidence pointed to the validity of Dr Culvenor’s tests which demonstrated that the stepladder was stable and could not have contributed to the appellant’s fall. It submitted that the appellant, who bore the onus of proof, did not prove that the condition of the stepladder contributed to her fall. The submissions of the respondent analysed the evidence of Ms Stewart, the appellant and Ms Edwards which has been set out above.
Consideration and conclusion
The appellant was unable to explain what caused her fall. She had several opportunities to describe the mechanism of her fall and did not describe it as involving any sudden movement or wobble which might have been a material contribution to her fall. In examination in chief, when asked what happened, she said:
Okay, it was a Saturday and on Saturdays, when it’s quiet our usual role is to get all the rooms stocked for the Monday, make sure all the rooms have what they need. In that process, I was just rearranging my linen like I usually do, grabbed the ladder and then next thing I know, I’m on the floor.
She was then asked to “step us through what happened” and she described in more detail the process of reaching up and extending her arms so as to put the fluffies up on the shelf. No part of her description of the fall and how she landed which followed included any statement that the stepladder wobbled when she was on it. In cross-examination she was asked about how she fell and she made no reference to any wobble:
You said in evidence that everything happened so quickly on that day that the fact is you don’t really know what happened, isn’t it?---I know I fell.
Yes, but you don’t know how you feel, do you?---I fell off the ladder.
You don’t know how you fell, do you?---No.
The factual issue concerning the state of the stepladder when it was examined by Dr Culvenor is dealt with above at [26]-[33]. As indicated above it did not have the effect of undermining Dr Culvenor’s opinion that the stepladder was stable and safe in the position that it was used.
The only remaining evidence relevant to this issue was the appellant’s general statement that the ladder wobbled when she used it in the same manner that it wobbled in her video. For the reasons given above at [34], that was not evidence to which significant weight could be given in relation to the incident in question.
Thus the evidence was that the stepladder was safe to use when used in the position where the appellant used it. She could not identify herself what caused her to fall. However, the actions which she described were consistent, in the light of Dr Culvenor’s evidence in relation to the potential for overbalancing as a result of the appellant’s centre of gravity being shifted to the right beyond the line of her foot, with her having overbalanced. The circumstances are not such that it was “a commonsense inference” that the “ad hoc solution” of putting “a compressible tape” over the front right foot of the stepladder was what caused the appellant’s fall. While it is possible that there was some cause other than that identified by her Honour, the evidence does not provide a basis for interfering with the factual conclusion reached by her Honour.
4. Her Honour erred in concluding that there was no evidence of an alternative to the storage of “fluffies” and blankets on the higher shelf in the laundry in the circumstances were the report of Dr Culvenor demonstrated that there was such an alternative
Submissions
The appellant submitted that her Honour’s finding that there was no reasonable alternative to the use of the stepladder was critical. She submitted that her Honour overlooked the system in place at the time of Dr Culvenor’s visit in April 2015, which involved storage of the fluffies in another room. The appellant contended that there was no evidence that the same system of storage could not have been put in place in 2012.
The respondent contests that the magistrate made any “finding” that there was no reasonable alternative to the use of the stepladder. The respondent pointed to the actual reasons of the magistrate set out in paragraph [54]-[55] of the quotation above at [10]. The respondent contended that the magistrate was correct to find that there was a minimal risk of injury associated with the use of the stepladder and hence no duty on the part of the respondent to change its system of work. Therefore the fact that there may have been an alternative system which avoided the use of a stepladder was irrelevant.
Consideration and conclusion
This ground of appeal is drafted on the basis that her Honour concluded that “there was no evidence of an alternative to the storage of fluffies and blankets on the higher shelf in the laundry”. Her Honour did not make such a finding. Rather her Honour referred to the plaintiff having “produced evidence that a storage system which did not require the use of a ladder would have been safer”: [54]. What she did find was that there was no evidence before the Court as to “why such a storage option was not availed of”.
Dr Culvenor’s report contains evidence about the practice in relation to fluffies as at the date of his inspection in April 2015. He said:
The person presently doing the work moved the blankets known as “fluffies” to the room with the animal cages. The explanation was that this is the place where they are used hence it is more convenient.
It is not clear whether her Honour paid specific regard to this evidence as opposed to the general evidence that a system of storage not involving the use of a ladder would avoid the risk of the use of a ladder. Her reasons are more consistent with having not specifically taken it into account. That would be understandable in circumstances where the evidence of the new system described to Dr Culvenor was not mentioned in either written or oral submissions before her Honour. The use to which the evidence of a subsequently adopted system might be put was limited. The fundamental issue posed by s 43(1) as to what a reasonable person would have done in response to the risk must be considered prospectively: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [31] and [40]. The fact that there were measures which could have been taken to avert or diminish the risk that actually materialised does not establish breach: Thornton v Sweeney [2011] NSWCA 244; 59 MVR 155 at [131]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [52].
Her Honour’s reasons disclose that she clearly adopted this prospective approach: see [55] of her reasons.
Further, s 44 of the CLW Act provides:
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
...
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
It is not necessary to express any concluded view about the precise scope of s 44, particularly, that part of it which provides that the subsequent taking of action does not “affect liability in relation to the risk.” Even on the assumption that this provision did not preclude regard being had to the subsequent change in the location of the fluffies, because of the way the matter was run at trial, evidence was not led that would permit a more refined assessment than was adopted by her Honour of how easy or difficult the change in system would be. The only evidence as to why it was adopted is that it was “more convenient”. There was no evidence as to whether there were other consequences for the operation of the business arising from the change of system. It did not disclose how the alternative system affected the extent to which the stepladder was required to be used overall. The absence of evidence about precisely what was involved in the new system and indeed any significant evidence about the overall layout of the premises or the activities or systems that operated within the business made it hard to reach the conclusion that the system in place in 2015 was so obviously reasonable and practicable that it indicated that the earlier system was not a reasonable one. It was not a case where the Court was obliged, in the absence of evidence, to adopt the approach that it sounded like a simple idea and therefore it was.
I do not consider that her Honour’s failure to make specific reference to the evidence involved an error or that she reached an erroneous conclusion as a result of the existence of that evidence.
5. Her Honour erred in failing to consider the standard of care owed by the respondent by reference to the following-
5.1 the system under which the appellant work required her to repeatedly used the stepladder to place items on the higher shelf in the laundry;
5.2 the ladder was defective in that that the foot of the right-hand style had been replaced by a soft bandage which rendered the ladder unstable;
5.3 there was an acknowledged risk that a busy worker might inadvertently overreach from a stepladder and fall with the potential for serious injury;
5.4 the Work Health and Safety (Hazardous Manual Tasks) Code of Practice 2011 and the legislation under which it was made imposed an obligation on the respondent to-
(1) carry out an assessment of the risk involved in the appellant’s system of work, and,
(2) take reasonable steps to eliminate, or if that was not practicable, minimise the risk;
5.5 the respondent failed to carry out any risk assessment of the system of work requiring the use of the stepladder; and
5.6 the respondent failed to take any step to consider ways in which the risk of a fall from the ladde could be eliminated or minimised.
7. Her Honour erred in concluding that there was no breach because it would have been unreasonable to require the respondent to have totally eliminated all storage options above ground-based reach
Submissions
Both parties addressed these grounds together.
The appellant submitted that the magistrate failed to give any weight at all to the obligations imposed under the Work Health and Safety Act 2011 (ACT) (WHS Act) and the Work Health and Safety (How to Manage Work Health and Safety Risks) Code of Practice 2011 (Management Code). The appellant accepted that this was not pleaded, but noted that the opinion of Ms Bestre was expressly founded upon the obligation imposed by the WHS Act and the Management Code. The appellant submitted that although the test remained one of “reasonableness”, the question of what is “reasonable” may change over time, particularly in the context of legislative changes and changes in community standards: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 at 308-309 (Braistina). The appellant submitted that her Honour fell into error in seeing an incompatibility between reasonableness and elimination of risk: see [58] in the quote above. The appellant submitted that if elimination of risk is reasonably practicable then it would be unreasonable for the employer not to redesign the system of work to achieve that objective.
The respondent contended that because the obligations in the WHS Act and Management Code were not pleaded, the appellant should not be permitted to raise any alleged breach on this appeal. The respondent then submitted:
(a)neither the WHS Act nor the Management Code create a duty on employers under the civil law; and
(b)no breach of the WHS Act or Management Code is itself an act of negligence on the part of the employer, rather, the standard of care remains one of reasonableness.
The respondent submitted that it was wrong to assert that an employer was obliged to completely eliminate a risk if that was reasonably practicable. Rather the appropriate test was whether the risk of harm was such that the employer, acting reasonably, would take steps to minimise or eliminate that risk. It then pointed to the finding of the magistrate that any risk of harm arising from the use of a stepladder was not such as to cause a reasonable employer and the position of the respondent to change the system of work to avoid its use.
The respondent contended that there could be no sensible suggestion that the appellant required training in the use of a stepladder. Use of the stepladder to stack goods on a shelf was a simple task well within the duties that an employee could be required to perform without any risk assessment being necessary or reasonable. It contended that the WHS Act and the Management Code did not alter the common law so as to require the elimination of any risk in the workplace.
Consideration and conclusion
Having regard to my conclusions in relation to ground 1 above, her Honour was clearly not obliged to consider the standard of care on the basis that the stepladder was defective as alleged in ground 5.2.
I am not satisfied that her Honour failed to consider the standard of care by reference to the fact that the appellant was required to use the stepladder “repeatedly” (ground 5.1) and that there was a possibility of inadvertent overreach (ground 5.3). Her Honour made specific reference to the need to take account of inadvertence and carelessness, particularly in relation to repetitive work, when she discussed the decisions in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 and Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872 in [57] of the quoted extracts of her judgment. The significance of the possibility of inadvertence or carelessness in any particular case will depend upon an assessment of the particular circumstances. That an employer does not establish a system which protects workers from all potential inadvertence or carelessness does not establish that the employer has failed to take reasonable care. In the present case, while the stepladder needed to be used “almost daily” it was not a case where the repetitive nature of the work made it significantly more likely that carelessness or inadvertence would be at work. Further, it was a case involving a relatively straightforward activity in which a single person controlled all aspects of it. While these factors do not preclude the operation of the principal, they tend to lessen its significance in the circumstances of this case.
In so far as ground 5 relied upon the codes of practice under the WHS Act, the ground was targeted at the standard of care. The ground of appeal refers to the Work Health and Safety (Hazardous Manual Tasks) Code of Practice 2011 (Manual Tasks Code). In contrast, the submissions of the appellant referred to the Management Code. The Manual Tasks Code was referred to in the report of Ms Bestre, the Management Code was referred to during cross-examination of Dr Culvenor.
The appellant did not plead failure to comply with either code as a particular of negligence. The grounds of appeal only sought to rely upon the codes in relation to the standard of care. However, the ground of appeal suggests it was to be contended that the code of practice and the legislation under which it was made imposed an “obligation” on the respondent to carry out an assessment of the risk involved in the appellant’s system of work. If that was the contention then the appellant was obliged to plead that obligation. It was not open to plead breach of the obligation as a separate cause of action having regard to the terms of s 267(a) of the WHS Act. It is possible that it could have been pleaded as a particular of negligence. That too might have been precluded by the terms of s 267(b) depending upon how the two elements of that paragraph are interpreted and what effect is given to the provisions of div 14.2 of the WHS Act.
However, the appellant only sought to rely upon the codes as part of the general factual background against which reasonableness was to be judged - “part of the matrix of the circumstances of the case”. In Braistina Mason, Wilson and Dawson JJ said (at 308-309):
Furthermore, it has long been recognized that what is a reasonable standard of care for an employee's safety is "not a low one": O'Connor v. Commissioner for Government Transport (1954) 100 CLR 225, at p 230. Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances. The Court had occasion to make this point recently in Waugh v. Kippen (1986) 160 CLR 156 in distinguishing from the case in hand the decisions in Turner v. The State of South Australia (1982) 56 ALJR 839; 42 ALR 669 and Castro v. Transfield (Qld) Pty. Ltd. (1983) 57 ALJR 619; 47 ALR 715.
On the other hand, being a question of fact, it is undoubtedly true, as McHugh J.A. said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. This must be so, because in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ. said in McLean v. Tedman (1985) 155 CLR 306 at p 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer". However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee: see Smith v. The Broken Hill Pty. Co. Ltd. (1957) 97 CLR 337, at pp 342-343; Da Costa v. Cockburn Salvage& Trading Pty. Ltd. (1970) 124 CLR 192, at p 218.
(Footnotes included as text).
The plaintiff’s submission appeared to be consistent with Braistina. Senior counsel for the appellant pointed to Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 as a case illustrating the way in which the appellant sought to deploy the codes. In that case the Court said (at [49]):
While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 345 [43], "whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden."
(Footnotes included as text).
The terms of the instruments were not in evidence. Ms Bestre included some pictures from the Manual Tasks Code in her report in support of her opinion and set out a quote relevant only to the dog incident which was not the subject of this appeal.
The Management Code was not in evidence before her Honour, but was referred to in the cross-examination of Dr Culvenor. He was asked whether he had taken any steps to determine whether there was any risk management process in place along the lines of that described in the Code. He said no. He was then asked some general questions about the desirability of having a system whereby there was an identification of hazards, an assessment of risks, control measures put in place and then a review process undertaken. Ultimately he was asked to assume that there was no such process in place and it was suggested to him that such a situation “would be a poor work practice”. He said: “It wouldn’t be any work practice at all. It would be poor, yes.”
Therefore the Management Code was simply relied upon as a vehicle by which the appellant’s counsel cross-examined Dr Culvenor about the systems that were put in place to manage risks.
In my view, if it was to be said that these codes formed a factual basis indicative of changing workplace standards which should inform what amounted to reasonable care then they should have been tendered. Just because an instrument is one which is notifiable under an Act does not mean that it has the effect of law. Whether or not it has legal consequences depends upon its empowering statute. In the present case the empowering statute did not give it any relevant legal consequence for the purposes of this case: see WHS Act, div 14.2. The appellant was only seeking to rely upon it as part of the general factual background against which the respondent’s conduct was to be judged in a similar manner to which an Australian Standard might be used.
In circumstances where the codes were not tendered, but merely formed some part of the basis for expert opinions which were in evidence, I do not consider that her Honour was obliged to give consideration to the standards which they identified separately from the consideration that she gave to the expert opinions.
In any event it has not been identified which particular aspect of each of the standards should have been applied and how it would have led to any different result in the present case.
Paragraphs 5.5 and 5.6 of ground 5 can be dealt with together with ground 7 as they relate more to whether or not there was a breach of duty rather than the standard of care that was required. The essential findings made by her Honour were:
(a)It was reasonably foreseeable that a person using a stepladder might fall off it: [52].
(b)The ladder was not faulty: [52].
(c)The accident was caused by the appellant inadvertently overreaching: [53].
(d)No instruction was required because of the simplicity and commonplace nature of the task: [53].
(e)There was no evidence why an alternative storage option was not availed of: [54].
Her Honour then posed the question whether it was nonetheless reasonable to have a system of work which carried with it some increased risk of injury and identified that the respondent’s case was based upon Dr Culvenor’s evidence that the imposition of a requirement for an alternative storage option would be unreasonable and unnecessary: [55]. Her Honour then referred to the authorities and statutory provisions relevant to how she should assess the issue of reasonableness:
(a)Mihaljevic v Longyear (Australia) Pty Ltd (1985) 3 NSWLR 1, stressing that the obligation is no more than to take reasonable care;
(b)Czatyrko emphasising that reasonable care must have regard to the possibility of thoughtlessness, inadvertence or carelessness on the part of employee, particularly in the case of repetitive work and Ferraloro to the same effect;
(c)Swain for the emphasis in formulations of the duty on standard of care of the concept of reasonableness;
(d)the terms of the relevant statutory provisions, in particular ss 42, 43 and 44 of the CLW Act.
Her Honour, accepting Dr Culvenor’s evidence, reached the conclusion that “it seems entirely unreasonable that any employer should be required to totally eliminate all storage options above ground-based reach.” For that reason her Honour dismissed the appellant’s claim.
The reasons that her Honour gave must be understood in the light of the contest between the experts. Essentially the evidence of Ms Bestre was summarised in her somewhat overstated proposition that “there would be about a hundred good reasons not to put a ladder in that area”. Her approach was that fluffies should have been stored at waist height for easy access. She did not consider it appropriate to use a stepladder for the task. She considered that the fluffies should have been relocated.
In contrast, Dr Culvenor said of the arguments in Ms Bestre’s report:
The first appears to be essentially a proposal where nothing can be stored in any place except if it is reachable from floor level this overstate overstates the danger of shelves and cupboards commonplace in workplaces and homes alike, and such a restriction would be both unrealistic and unnecessary.
Ultimately the assessment of reasonableness involves a factual determination that takes into account community standards. It does not necessarily involve the elimination of risk. The appellant has not, in my view, demonstrated that the conclusion reached by her Honour was incorrect. The conclusions reached by Ms Bestre appeared to be somewhat overstated, while the opinions of Dr Culvenor were based upon examination of the actual stepladder at the business premises by a person who was undoubtedly well qualified. Further, a stepladder is an ordinary piece of equipment in relation to which particular training was not necessary. All these factors tended against a finding that the respondent’s conduct was not reasonable. In the light of the fact that the stepladder was not faulty, the strongest argument for the appellant was that it was necessary to take into account the possibility of carelessness or inadvertence when designing the system of work. The application of that principle in the circumstances of any particular case may give rise to conclusions over which reasonable minds may differ. In the present case, largely because of the relative simplicity and domestic nature of the task, I am not persuaded that her Honour erred in reaching the conclusion that she did.
As a consequence grounds 5 and 7 are not made out.
6. Her Honour erred in failing to apply the provisions of section 43 of the Civil Law (Wrongs) Act 2002 to the determination of whether the respondent had breached its duty of care in the circumstances leading to the appellant’s fall from the stepladder
Submissions
The appellant submitted that although her Honour referred to s 43 of the CLW Act she failed to apply the required criteria to the circumstances of the case. That was because, although her Honour accepted that the risk that the appellant might fall from the ladder was foreseeable, she did not specifically address s 43(1)(b). The closest that the magistrate came was her reference at [61] in the quote above where she referred to the risk being increased by some “unquantifiable degree”. The appellant contended that her Honour was required to make a finding as to whether the risk was insignificant or not and, having regard to the daily use of the stepladder in a busy workplace and the necessity to reach up to place objects on a shelf above shoulder height, the only finding reasonably open was that the risk was not insignificant. The appellant contended that her Honour was then required to assess whether a reasonable person would have taken precautions against the risk of a fall from the stepladder. That would have required consideration of the factors in s 43(2). The relevant matters were:
(a)the probability that harm would happen if no precautions were taken: the appellant accepted that the probably of a fall was low;
(b)the likely seriousness of the harm: the appellant pointed to her Honour’s recognition at [61] in the quote above that there were varying levels of injury which could occur including serious injury;
(c)the burden of taking precautions: the appellant submitted that, having regard to the evidence of Dr Culvenor, reorganisation of the storage of fluffies was possible, the burden of avoiding the need to use the ladder was trivial.
The appellant therefore submitted that the evaluative process required by s 43(2) led inexorably to the conclusion that the respondent breached its duty of care.
The respondent identified that the magistrate referred to ss 42, 43 and 44 of the CLW Act and referred to the statements by her Honour at [61] and [52]-[53] of her reasons. It contended that the reasons satisfied the requirements of those sections of the CLW Act.
Consideration and conclusion
Her Honour made specific reference to s 43 at [60]. She also referred to the risk of a fall being increased by the use of a small stepladder at [61]. Paragraph 62 is focused on the issue of reasonableness. These reasons read as a whole clearly indicate that her Honour considered that the risk was “not insignificant” for the purposes of s 43(1)(b). Had her Honour considered that the risk was “insignificant” for the purposes of that paragraph then she would not have been required to continue to the next step and consider the question of the reasonableness of taking identified precautions. Therefore, although her Honour did not methodically address in sequence each requirement of s 43(1) of the CLW Act, I consider that the reasons disclose that she did consider the matters required to be considered under s 43(1).
So far as the factors in s 43(2) were concerned appellant’s submissions focused upon the alleged failure of her Honour to consider “the burden of taking precautions to avoid the risk of harm”. The difficulty so far as the evidence was concerned was that the precaution against the risk of harm which the appellant contended should have been taken was that which was contended for by Ms Bestre. Her Honour:
(a)referred to the plaintiff’s evidence, accepted by the defendant’s expert, that a storage system which did not require the use of a ladder would be safer;
(b)identified that there was no evidence before the Court as to why such a storage option was not availed of;
(c)therefore concluded that the plaintiff had failed to establish that such an option was in fact reasonable in the context of this business enterprise.
Thus the conclusion reached by her Honour was that because of the lack of evidence about the extent of any burden that would be imposed the appellant had not established that a reasonable person would have adopted that precaution. Thus the balancing exercise required by s 43(2)(c) was rendered abortive because there was insufficient evidence about the burden that would be imposed by the taking of the precaution contended for by the appellant. Her Honour then went on to consider questions of reasonableness on the basis that it was an available option. Her Honour’s consideration appears to proceed on the basis that any burden imposed by the adoption of the alternative system was not a significant one.
The conclusion that the respondent’s conduct did not involve a failure to take reasonable care was based upon the evidence of Dr Culvenor and the fact that the question was one of reasonableness rather than the elimination of risk. Had the appellant led evidence that fully exposed the alternative system in the context of the business as a whole then she would have had a better prospect of establishing that it was not reasonable to adopt a system involving the storage of fluffies on the shelf in the laundry. There was only very limited evidence about the system for storage of fluffies on the upper shelf in the laundry – that it was an overflow storage area for those fluffies that could not be stored in each ward and that the lower shelf in the laundry was not used for fluffies because the blankets that were used more often were stored there. In circumstances where the system for storage of fluffies was not examined in the context of the business as a whole there was no error in the conclusion reached by her Honour in the light of the evidence that was before her.
For these reasons I do not consider that this ground of appeal is made out.
Cross-appeal
Proceedings before the magistrate
At the time when judgment was delivered there was agreement between the parties that any application in relation to costs would be dealt subsequently. Her Honour therefore made a costs order, but gave the parties liberty to apply within 28 days in relation to that order. The respondent subsequently applied for an order that the appellant pay its costs from 8 July 2014 on an indemnity basis. At the hearing of that application the position of the appellant was that she neither consented to nor opposed the order. The respondent tendered its Calderbank letter and made no further submissions.
The Calderbank offer dated 24 June 2014 was an offer to pay $40,000 plus costs clear of workers compensation payments to date. It contained further terms which were appropriately drafted so as to make clear precisely what was being offered. The offer remained open until 4 pm on 8 July 2014.
There was evidence establishing that the workers compensation payback was $29,250. There was also evidence of a commutation of rights under the Workers Compensation Act 1951 (ACT) as part of a settlement of proceedings under that Act. The amount paid in consideration of the commutation of those rights was not disclosed by the evidence.
Therefore the value of the offer was in excess of $69,250, but how much in excess is not disclosed by the evidence. Her Honour assessed damages on a contingent basis at $114,620.08.
After referring to the history of the matter and the terms of the Calderbank letter, the magistrate’s reasons were as follows:
This is a matter in which potentially the principles in Calderbank v Calderbank apply. It might be said that the offer made on 24 June 2014 is a complying offer in the sense that it makes an offer of settlement better than that which was achieved at the hearing and that it was indicated that it was without prejudice save as to costs.
I note that the letter provides no basis upon which the offer is made. Neither is there, of course, any basis put for rejecting that offer in any submissions by the plaintiff today. However, although a better outcome was ultimately achieved by the defendant at hearing, the fact of the letter alone without further detail is insufficient. The costs order is not varied. The costs order as made on 24 September 2015 stands.
Grounds of appeal
The notice of cross-appeal set out five grounds of appeal. It is not necessary to reproduce those grounds. The essential complaints were:
(a)her Honour failed to exercise the discretion in connection with the Calderbank offer;
(b)if her Honour did exercise a discretion then she:
(i)took into account an irrelevant consideration, namely, that the letter did not “provide a basis” on which the offer was made and did not provide “further detail”;
(ii)failed to provide adequate reasons for her decision.
Submissions
The respondent contended that the reasons given disclosed an error of principle in that the magistrate acted on the basis that more was required than an effective Calderbank offer, namely, the “basis upon which the offer is made”, or alternatively that the reasons were insufficient in that they failed to identify in an understandable way the reasons for refusing to make a more favourable than usual costs order.
The appellant accepted that the reasons were not absolutely clear, but submitted that there was a proper basis for refusing to make a better than usual costs order because the point when the offer was made was a year before the expert report of Dr Culvenor was served, which disclosed the evidentiary basis for the defendant’s denial of liability. The appellant accepted, however, that she had not made this submission to the magistrate.
Consideration and conclusion
Questions of costs involve the exercise of a discretion. Such questions are often decided on the basis of relatively brief argument after the case has been decided. Reasons will usually be given ex tempore. Those matters must be taken into account in determining any appeal from a costs decision. They tend against scrutiny of the reasons given with an eye keenly attuned to the detection of error.
Having said that, cost issues are significant issues for the parties and often will bear what reasonable laypersons would think would be a disproportion to the amount at stake in the case. The general obligation to give reasons applies, one of the purposes of which is to permit a party to effectively exercise a right of appeal.
The approach taken to submissions in relation to costs before the magistrate might have been appropriate if the Court was being invited to act upon an offer of compromise under the rules rather than a Calderbank offer. As the authorities make clear, the mere non-acceptance of a Calderbank offer which is bettered by the offering party is not sufficient to warrant a costs consequence. Rather the offering party must establish that the receiving party acted unreasonably in failing to accept the offer: Quirk v Bawden (1992) 112 ACTR 1 at 6 (Quirk), Becker v Queensland Investment Corporation (No 2) [2009] ACTSC 147 at [5]. Unreasonableness is not necessarily established by failing to do better than was offered. Indemnity costs orders are not intended to inhibit either party from litigating issues reasonably in contention between them: Quirk at 8. In the present case, apart from the existence and quantum of the offer, in the absence of any submissions by the respondent there was nothing else to establish that the rejection of the offer was unreasonable.
Contrary to the respondent’s submissions, to take into account whether or not the letter making the offer articulates the reasons why the receiving party should accept it is not take into account an irrelevant consideration: Aljade and MKIC v OCBC [2004] VSC 351 at [82]-[87]. An offer which explains the basis for the offer by reference to the strength or weakness of the parties’ respective positions or particular evidence in the case will clearly be more persuasive in relation to costs than a “bare” offer where the Court’s decision has vindicated the position taken by the offering party. The weight to be given to the explanation in any particular case will depend upon the circumstances. There was no error in her Honour having regard to the absence of any reasons being articulated in the offer.
However, her Honour’s reasons are inadequate in that they do not make clear whether her Honour considered that the absence of a “basis upon which the offer is made” or “further detail” rendered the offer ineffective as a Calderbank offer or whether her Honour considered that the letter was an effective Calderbank offer but not one which, in the circumstances, persuaded her that a better than usual costs order should be made. The reasons which her Honour gave appear to be more consistent with the former than the latter. That appears from her reference to “potentially” in the first sentence and the contrast between what “might be said” in the second sentence with the absence of any “basis” described in the third sentence. It is also consistent with the reference to the letter without further detail being “insufficient”. To have adopted the former approach would have involved an error, there being no obligation to provide an explanation as opposed to a capacity to do so.
In those circumstances, I consider that her Honour failed to give adequate reasons. I will re-exercise her Honour’s discretion. That discretion is to be exercised in the context that offers of compromise were not available under the pt 2.10 of the Court Procedures Rules 2006 (ACT) until 1 January 2015. Thus, although available prior to the hearing which occurred in June 2015, the making of an offer of compromise was not available as at the date of the offer.
In my view, the letter was an effective Calderbank offer. The offer was a significant one. It clearly involved a realistic attempt to settle the proceedings rather than an offer solely targeted at an attempt to accrue a costs benefit. The offer was worth at least $69,250, which is a substantial proportion of the amount ultimately assessed by her Honour on a contingent basis (noting, however, that the respondent accepted that her Honour’s assessment involved an error in relation to the failure to award damages for future loss). The quantum of the offer obviously compares very favourably with the outcome achieved by the appellant at the hearing. Having regard to the pleadings and the nature of the case more generally, the appellant, properly advised, should have assessed the offer on the basis that there was a risk that she would fail on liability.
Notwithstanding the generosity of the offer when compared with the outcome of the case, the offer was made by letter dated 24 June 2014, well prior to the service of the report of Dr Culvenor dated 12 May 2015 which disclosed the evidence, fundamental to the defendant’s case and which was accepted by the magistrate, that the stepladder in question was not faulty and operated effectively in the position where the appellant used it. It also provided the evidence, ultimately accepted by her Honour that the approach contended for by Ms Bestre, requiring storage to be achieved without the use of a stepladder, was “unrealistic and unnecessary”. In the light of that chronology, the substantial difference between the result offered in the letter of 24 June 2014 and the result achieved by the appellant at the hearing is not sufficient to demonstrate that her failure to accept the offer was unreasonable so as to warrant a different costs consequence to that which her Honour had originally indicated.
For those reasons the cross-appeal is dismissed.
Costs
For the above reasons both appeal and cross-appeal are to be dismissed. Both parties agreed that costs should follow the event. Both the appeal and the cross-appeal have failed. I will therefore order that costs follow the event in relation to each appeal.
Orders
The orders of the Court are:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs of the appeal.
3. The cross-appeal is dismissed.
4. The respondent is to pay the appellant’s costs of the cross-appeal.
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 25 October 2016 |
6
11
4