Damjanovic v KAH Australia Pty Ltd (trading as Bayview Eden) (Ruling)
[2016] VCC 140
•26 February 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-05989
| ZORKA DAMJANOVIC | Plaintiff |
| v | |
| KAH AUSTRALIA PTY LTD (trading as BAYVIEW EDEN) (ACN 052 003 139) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11,15,16,17,18,19 & 22 February 2016 | |
DATE OF RULING: | 26 February 2016 | |
CASE MAY BE CITED AS: | Damjanovic v KAH Australia Pty Ltd (trading as Bayview Eden) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 140 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Jury trial – two causes of action – duty to take care for the safety of the plaintiff and breach of the Occupational Health and Safety Regulations 2007 – preventability – whether the plaintiff had adduced any evidence of a reasonably practicable alternative that could have avoided or reduced the risk of injury to the plaintiff – whether the plaintiff had adduced any evidence to demonstrate that a breach of the Regulations was causative of the plaintiff’s injuries, and whether there was a reasonably practicable alternative that could have avoided or reduced the risk of injury to the plaintiff – discharge of the jury
Legislation Cited: Occupational Health and Safety Regulations 2007
Cases Cited:Swain v Waverley Municipal Council (2005) 220 CLR 517; Vozza v Tooth & Co Ltd (1964) 112 CLR 316; Neill v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362; General Cleaning Contractors Ltd v Christmas [1953] AC 180; Duma v Mader International Pty Ltd (2013) 42 VR 351
Ruling: The jury is discharged without verdict.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr R J Stanley QC with Mr R H Stanley | Wisewould Mahony Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff commenced this proceeding by Writ endorsed with a Statement of Claim. The Statement of Claim has been drawn in rather general terms. Despite this, no issue was taken by the defendant with the manner in which the two causes of action were framed. The first cause of action is based upon a breach by the defendant of its duty owed to the plaintiff to take reasonable care in providing her with a safe system of work, and the second is based upon the defendant’s statutory duty under the Occupational Health and Safety Regulations 2007.
2 Mr J Mighell QC appeared with Mr L Allan of counsel for the plaintiff, and Mr R J Stanley QC appeared with Mr R H Stanley of counsel for the defendant.
3 A jury was empanelled on the morning of Monday, 15 February 2016. The last witness left the witnessbox late on Friday morning, 19 February 2016. It was immediately after the last witness left the witnessbox that the defendant submitted that the two causes of action should not be submitted to the jury for its consideration.
4 In basic terms, the submission was that the evidence adduced by the plaintiff was insufficient to satisfy the test found in the authorities regarding what evidence the plaintiff must adduce on the issue of the preventability of the injury, and in relation to the reliance on a breach of the Occupational Health and Safety Regulations 2007, in effect, the same submission was made.
The evidence
5 I will firstly set out a truncated summary of the evidence so that the issues raised in the proceeding can be properly understood.
6 The plaintiff was employed as a room attendant at the defendant’s hotel in Queens Road, Albert Park. She commenced as a casual employee in 2003. She became a permanent employee in 2006.
7 The plaintiff worked on the fifth floor of the hotel. She worked from Thursday to Monday each week. On Thursday, she worked six hours, and on the other days, she worked eight hours.
8 On Thursday, she cleaned 13 rooms and on the other days, she cleaned 17 rooms. The period of time allocated to cleaning each of the rooms was 20 minutes. The plaintiff had available to her morning and afternoon breaks, and a lunch break.
9 The cleaning of the rooms involved a multitude of tasks. I will endeavour to summarise those tasks generally, because I think that is all that is required in considering the defendant’s submissions.
10 Essentially, the plaintiff did the following:
·She would use a trolley, shown in exhibit ‘A’, which contained linen, toilet paper, and other accessories available to occupants of the hotel rooms.
·She would remove rubbish using plastic rubbish bags which she either dragged or carried from each room.
·She would make beds, which would involve changing sheets, mattress covers, doona covers and other essential linen.
·She would carry the soiled linen to a laundry chute.
·Making the beds involved lifting the mattress to a degree or sliding sheets under the mattress.
·The beds comprised double beds, single beds and folding beds.
·She would spray a substance on the floor of the bathrooms and then either squat or get down on her knees to wipe the floor clean. She would also clean the bath, shower, toilet and vanity unit.
·She would replace towels and other accessories available to occupants of the hotel rooms which were positioned in or on the vanity units in the bathrooms.
·She would vacuum the rooms, which would involve moving beds, armchairs, smaller chairs, side tables and television cabinets. Some of the beds were not fixed with caster wheels, and some were.
·She would go to another floor to obtain further linen to replenish the linen she had taken from her trolley.
11 There was some controversy in the evidence about the tasks which the plaintiff undertook. The defendant’s two witnesses, Tania Hluschko, the defendant’s executive housekeeper, and Ms Meena Kumari, one of the defendant’s housekeeping supervisors, essentially gave evidence that:
·There was no necessity to squat or kneel while cleaning the bathroom floor. A rag could be run over the floor by using a foot.
·The television cabinets were too heavy to be moved.
·All of the beds were on caster wheels.
·There was little need to move furniture.
·The 20 minutes available to clean each room was adequate and consistent with their experience working for the defendant for many years, and when compared with the work they had performed elsewhere at other hotels.
·There was some additional contrast in their evidence regarding how often linen had to be changed if an occupant of a hotel room was staying for more than one night, and on some occasions occupants did not want their rooms cleaned.
12 Ms Hluschko and Ms Kumari agreed that the plaintiff was a very good worker who completed her work within the allotted times.
13 The plaintiff said that the tasks she was required to perform were heavy work and repetitive. The number of rooms she had to clean and the limited time she had to clean them meant that she had to work at a fast pace.
14 The evidence of Ms Hluschko and Ms Kumari was significantly different. They said that the time allotted to room attendants per room was adequate, and that the room attendants, including the plaintiff, were able to complete all of the tasks necessary to clean each room before moving onto the next room.
15 I will next set out a truncated summary of the medical evidence. Dr Sherriff, general practitioner, Mr Bittar, neurosurgeon, and Mr Hunt, orthopaedic surgeon, were the only medical witnesses called by the plaintiff. The defendant did not call any contrary medical evidence.
16 In general terms, the medical evidence disclosed that the plaintiff had the presence of degenerative disease in her cervical spine, and particularly at the C5-6 level. Mr Bittar and Mr Hunt were both of the opinion that the plaintiff had suffered an aggravation of the degenerative disease which resulted in it becoming symptomatic and disabling. Additionally, Mr Hunt was of the opinion that the work the plaintiff undertook between 2003 and 2010 had contributed to the development of that degenerative disease. Dr Sherriff agreed.
17 Mr Bittar disavowed any real expertise in the treatment of shoulder conditions. Mr Hunt said that the treatment of shoulder conditions is one of his particular special interests. He was of the opinion that the plaintiff’s cervical spine condition was the dominant injury when compared with the injury to her shoulder. In relation to her shoulder injury, he was of the opinion that she had suffered a mixed presentation of impingement comprising rotator cuff tendinitis and subacromial bursitis associated with a SLAP tear involving the glenoid labrum.
18 Dr Sherriff, Mr Bittar and Mr Hunt were of the opinion that the work the plaintiff was performing between 2003 and 2010 was to be implicated in the production of the medical conditions which they diagnosed. In giving this opinion, each of them was asked to consider a summary of the plaintiff’s evidence which condescended to the particular tasks she performed and the time which was available to her to perform those tasks.
The Plaintiff’s case
19 After hearing the plaintiff’s submissions in reply to the defendant’s application, I understood that the plaintiff intended go to the jury with the proposition that the reasonably practicable means of obviating the risk to the plaintiff involved all, or a combination, of the following:
·Less repetition in the tasks she performed.
·Reduction in the heavy nature of the tasks she performed.
·Reduction in the hours she was required to work.
·Rotation of the tasks she was required to perform.
·Working in pairs with another room attendant.
·No requirement to move furniture, for example, television cabinets and heavier furniture such as armchairs.
·No requirement to lift mattresses.
·A reduced requirement to lift and carry bags of rubbish.
·No requirement to lift and carry linen to the linen chute and from another floor to replenish her trolley.
The Defendant’s submissions
20 I agree with the defendant’s submissions that neither cause of action should be submitted for the consideration of the jury. I will firstly turn to the common law cause of action.
21 In Swain v Waverley Municipal Council,[1] the Court dealt squarely with the issue of the need for a plaintiff to adduce evidence of a reasonably practicable alternative to the work which is alleged to have been a cause of the plaintiff’s injuries. McHugh J referred to the need for evidence of the existence of an alternative:
“The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury to the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there ‘must be’ a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.”[2]
[1](2005) 220 CLR 517
[2]at 534 paragraph [40] - citations omitted
22 His Honour added that there must be evidence of the practicability of the alternative. He said:
“The plaintiff must also provide at least some evidence from which the jury can find that the alternative is a practicable one that was reasonably open to the defendant. … .”[3]
[3]at 535 paragraph [41] - citation omitted
23 His Honour then referred to a number of authorities which demonstrated that there was insufficient evidence of a practicable alternative, and he compared those authorities with others which dealt with the issue of whether expert evidence was needed or whether the manner in which the plaintiff put his/her case was a matter of common knowledge and commonsense.
24 The first authority that his Honour referred to was Vozza v Tooth & Co Ltd.[4] The plaintiff was required to manually handle bottles. The gloves he was wearing were penetrated by the glass of a bottle which had burst. The plaintiff’s case at trial was that the defendant was negligent in two respects – firstly, in not installing machinery which would make it unnecessary to remove bottles by hand; and secondly, in not providing the plaintiff with thick gloves. The mechanical handling system referred to by the plaintiff in evidence was not described in sufficient detail to enable the jury to contrast it with the defendant’s manual handling system or to assess its advantages or disadvantages, or to say whether or not it would have been practicable and reasonable to install it in the defendant’s premises. There was insufficient evidence to demonstrate that the alternative gloves referred to in evidence were suitable to undertake the plaintiff’s work tasks.[5]
[4](1964) 112 CLR 316
[5]per Windeyer J at 319-321
25 The next authority referred to by his Honour was Neill v New South Wales Fresh Food and Ice Pty Ltd.[6]The plaintiff slipped and fell while he was inside a milk container. The case at trial put by the plaintiff was that the defendant should have provided a handrail inside the milk container; or alternatively, should have provided him with non-skid boots. The plaintiff did not adduce any evidence of the practicability of either alternative. Kitto J said that in the absence of evidence from a person qualified to speak on the subject of a reasonably practicable alternative, whether the installation of a handrail or other steadying device in the container could have effectively prevented injury, and whether the installation would avoid causing undue inconvenience to a person working in the container or create some counterbalancing hazard, became matters of conjecture.[7] It was also proposed that the plaintiff should have been provided with non-skid boots. In a joint judgment, Taylor and Jacobs JJ dealt with the handrail alternative in the same way as other members of the Court, and disposed of the suggested alternative of non-skid boots by concluding that the availability and use of non-skid boots was not within the range of common knowledge and commonsense, and therefore, was a matter for expert opinion.[8]
[6](1963) 108 CLR 362
[7]at 365
[8]at 370
26 After reviewing Vozza and Neill, McHugh J added:
“Where the suggested alternative carries its own risks, the plaintiff must tender some evidence to support the practicability of that alternative. Thus, the plaintiff may be required to describe an alternative system in sufficient detail to enable the jury to contrast it with the defendant’s system, or to assess its advantages and disadvantages, or to say whether or not it would have been practicable and reasonable for the defendant to adopt it. The plaintiff may also be required to provide some technical or expert evidence of the feasibility of the alternative, especially where the operation is complex and technical.”[9]
[9]Swain v Waverley Municipal Council (supra) at 535-536 paragraph [43]
27 The plaintiff adduced some expert evidence from Mr Contoyannis, who is a mechanical engineer with specialist training and qualifications in biomechanics. His evidence, however, was directed mostly to the undertaking of a risk assessment under the Occupational Health and Safety Regulations 2007. The substance of the evidence he gave is contained in paragraph 7 of his report dated 7 January 2016. He did not give evidence of how any of the matters referred to in paragraph 19 would either eliminate or reduce the risk of the plaintiff suffering injury and of the availability of an alternative system which was practicable and available.
28 To simply point to the fact that the plaintiff’s work was hard, that she had to work repetitively, and at a fast pace, is one thing, but the state in which the evidence has been left is much like what occurred in Vozza and Neill, where the evidence pointed to the risk to which those plaintiffs were exposed, but failed to go to the next necessary step. That next step is the adducing of evidence to enable the jury to contrast the defendant’s system of work with what the plaintiff contends it should have been, and to determine whether the alternative was practicable and available. What the plaintiff has done is to leave all of this as a matter of conjecture for the jury to arrive at its own formulation of the alternative and whether it is practicable and available.
29 Before reaching an ultimate conclusion, I should deal with the question of whether what the plaintiff wants to submit to the jury for its consideration comes within the range of common knowledge and commonsense.
30 I am in no doubt that what the plaintiff wants to submit to the jury for its consideration are technical matters requiring expert opinion. The assertion in Neill that a handrail should have been installed in the milk container is superficially attractive as being within the range of common knowledge and commonsense. Where the attractiveness of that assertion breaks down is in the capacity of the jury to assess its advantages and disadvantages and then to determine whether it was a practicable and available alternative and reasonable for the defendant to use. Similarly, the plaintiff’s assertions suffer from the same problems. How is a jury to determine which of the submissions to be made by the plaintiff it should accept, and whether any of them would have eliminated or reduced the risk of the plaintiff suffering injury, and whether any of them, or a collection of them, constitute a practicable and available alternative system which was reasonable for the defendant to use?
31 McHugh J reviewed a number of authorities regarding whether expert evidence is necessary or whether an issue can be left to a jury because it comes within the range of common knowledge and commonsense, and in the course of that review, his Honour referred to General Cleaning Contractors Ltd v Christmas,[10] and cited the judgment of Lord Reid with approval, in which his Lordship considered that expert evidence of an alternative may not be necessary in a “clear” case.[11]
[10][1953] AC 180
[11]at 193
32 I think what the plaintiff should have done was to set about identifying the individual tasks which the plaintiff had to perform in undertaking the cleaning work of any particular hotel room. An expert, whether an engineer with a special interest in biomechanics or someone with specialist knowledge in setting up systems of cleaning of hotel rooms, or both, should then have been asked whether there was a practicable alternative system of work available to the defendant which would have either eliminated or reduced those stresses and strains, and whether that system was reasonable for the defendant to use.
33 I am also in no doubt that this is a case where expert evidence, of the kind I have referred to, is required. There is no basis upon which it can be said that the evidence of the alternative is so clear that it comes within the range of common knowledge and commonsense and should be left to the jury in its present state.
The statutory cause of action
34 The plaintiff tendered the blank form of a manual handling hazard identification worksheet[12] found in the Code of Practice for Manual Handling,[13] and a partially completed manual handling hazard identification worksheet completed by an employee of the defendant dated 19 October 2010.[14] It was not in dispute that the only hazard identification which was undertaken by the defendant was the partially completed one dated 19 October 2010.
[12]Exhibit B
[13]Exhibit E
[14]Exhibit C
35 In Duma v Mader International Pty Ltd,[15] the Court of Appeal considered what the plaintiff needed to prove to succeed with a cause of action based upon a breach of the Occupational Health and Safety (Manual Handling) Regulations 1999. The fact that regulations relied upon in that proceeding were different to the regulations relied on in this proceeding is immaterial.
[15](2013) 42 VR 351
36 The appellant (the plaintiff) submitted that a breach of the regulations was sufficient to demonstrate liability on the part of the defendant; that is, that no risk assessment had been carried out to determine whether there was a risk of musculoskeletal disorder which might occur as a result of the work undertaken by the plaintiff, and that was determinative of liability.
37 The Court of Appeal rejected that submission. Tate JA, who delivered the principal judgment of the Court, said that it was incumbent upon the plaintiff to demonstrate that any breach by the defendant of the regulations had caused the injury suffered by the plaintiff. She added that it was also incumbent upon the plaintiff to show that the lack of availability of alternative plant and equipment, system of work, lack of training or the failure to carry out a risk assessment caused the plaintiff’s injury.[16]
[16]At paragraph [55]
38 More importantly, her Honour said:
“In my view it was open to the jury to reject the evidence of Dr Short because he failed to identify any alternative that was practicable and would reduce the risk of injury. This had implications as to what could be inferred from the failure by the respondent to carry out a risk assessment. It may well be that the jury concluded that although the respondent failed to carry out a risk assessment, they were not satisfied that a risk assessment if performed would have brought about an alteration to the performance of the task or avoided the injury because of the impracticability of the alternatives and the risks the alternatives carried.”[17]
[17]At paragraph [59]
39 The Court also rejected the plaintiff’s submission that if a breach of the regulations is proved, then, generally speaking, an inference can be drawn that the breach caused the injury. Tate JA acknowledged that courts have upheld causal inferences from the breach of statutory duty “where it is clear” that the injury was of a kind that would “obviously” result from a breach. Her Honour added that it could not be correct that a breach of a regulation could be taken in all instances to automatically establish a causal presumption that must be rebutted by the defendant.[18]
[18]At paragraph [63]
40 I am not persuaded that it is at all clear that it can be inferred that the injuries suffered by the plaintiff obviously resulted from a breach of the regulations. The mere fact that the hazard identification was incomplete and that no further hazard identification was undertaken cannot support the cause of action based upon an alleged breach of the regulations.
Conclusion
41 After considering the competing submissions of the plaintiff and the defendant, I have reached the conclusion that neither of the causes of action relied upon by the plaintiff should be submitted to the jury for its consideration.
42 On Monday, 22 February 2016, I discharged the jury, and I adjourned the proceeding to 9.30am on Friday, 26 February 2016, for the purpose of formally handing down this Ruling, and to make any orders which flow from this Ruling.
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