Duma v Mader International Pty Ltd
[2013] VSCA 23
•20 February 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0095
| MIHAJLO DUMA | Appellant |
| v | |
| MADER INTERNATIONAL PTY LTD | Respondent |
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| JUDGES | NEAVE and TATE JJA and DAVIES AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 28 September 2012 |
| DATE OF JUDGMENT | 20 February 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 23 |
| JUDGMENT APPEALED FROM | Duma v Mader International (Unreported, County Court of Victoria, Judge Parrish, 10 June 2011) |
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TORTS – Breach of statutory duty – Manual handling – Duty to eliminate or reduce an employee’s risk of incurring a musculoskeletal disorder so far as is practicable – Duty to undertake a risk assessment with respect to tasks involving hazardous manual handling – Causation – Whether verdict that breach of statutory duties did not cause injury open on the evidence – Occupational Health and Safety (Manual Handling) Regulations1999 regulations 13, 14, 15 – Appeal dismissed – Betts v Whittingslowe (1946) 71 CLR 637, Bennett v Minister of Community Welfare (1992) 176 CLR 408, Roads and Traffic Authority v Royal (2008) 245 ALR 653, considered.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A D B Ingram with Ms M Pilipasidis | Nowicki Carbone & Co |
| For the Respondent | Mr J Ruskin QC with Ms B Y Knoester | Minter Ellison |
NEAVE JA:
I agree with Tate JA that the verdict reached by the jury was reasonably open to it. It follows that the appeal must be dismissed. I wish only to add a brief comment on the issue of causation.
Clearly, the breach of an occupational health and safety regulation, no matter how unrelated to the occurrence of the injury, cannot automatically establish a presumption that the injury was caused by that breach.[1] However, in many circumstances, such a breach will give rise to a strong inference that the breach of statutory duty was a cause, if not necessarily the sole cause, of the injury.[2]
[1]See Tate JA’s reasons at [63].
[2]Betts v Whittingslowe (1946) 71 CLR 637, 649 (Dixon J), 651 (McTiernan J, who expressed the view that the breach established prima facie that the breach was the cause of the injury).
If such inferences could not normally be drawn, even plaintiffs who were injured in the context of egregious breaches of occupational health and safety regulations would be met with the very high burden of establishing the precise aetiology of the injury they suffered. This would create particular difficulties for plaintiffs who, because of psychological trauma suffered as a consequence of the injury, could not recall the precise sequence of events which preceded it. Similar difficulties would be faced by plaintiffs who suffer injury in the context of having performed repetitive tasks over a considerable period, where the employer has not satisfied occupational health and safety requirements designed to avoid the occurrence of such injuries. Too great an insistence on the need to demonstrate the mechanism of the injury to a fine degree would permit defendants to unfairly escape liability for injuries suffered by plaintiffs, despite blatant negligence or breach of statutory duty.
The question whether it is always necessary for a plaintiff to establish breach and causation separately has not yet been settled.[3] In Bennett v Minister of Community
Welfare,[4] Gaudron J said:[5]
There are two aspects of the question whether performance of a duty would have averted the loss or injury suffered. The first is the general sufficiency of the duty to avert or prevent harm of the kind in issue. The second involves consideration of what would or would not have happened in the particular circumstances of the case. As has been seen, it is not always necessary to consider the second aspect of the question. And it is rare, indeed, that it is necessary to consider the first aspect. In the first place, proceedings are not usually brought for breach of a duty that is not or would not have been efficacious to avert or prevent the harm suffered. And so far as general sufficiency is involved in the question of causation, there is usually no reason to separate or distinguish the question of breach of a common law duty from that of causation.
[3]This appears to be acknowledged by Kiefel J in the passage from Roads and Traffic Authority v Royal (2008) 245 ALR 653, 688 [139]−[140], as cited in [63] of Tate JA’s reasons.
[4](1992) 176 CLR 408.
[5]Ibid 421–2 (citations omitted).
Although her Honour’s remarks related to common law duties, in my view they are particularly pertinent to breach of the statutory duties which have been established to protect workers from occupationally related injury.
TATE JA:
Introduction
The appellant, Mr Mihajlo Duma, challenges the finding by a jury that there was no breach of the statutory duties imposed by Regulations 13, 14 and 15 of the Occupational Health and Safety (Manual Handling) Regulations1999 (collectively, ‘the regulations’)[6] by the respondent, Mader International Pty Ltd, which caused the appellant’s cervical spine injury. The appellant challenges the verdict on the basis that it was not open on the evidence for the jury to find as they did.[7]He seeks orders setting aside the verdict of the jury and the orders made in the County Court in favour of the respondent.
[6]That is, regulations 13, 14 and 15. Where relevant, individual regulations are mentioned.
[7]The appellant is confined to a challenge to the finding that there was no breach of the regulations which caused his injury. There was no challenge to the judge’s charge to the jury and no challenge to the finding by the jury that there was no breach by the respondent of its common law duty to take reasonable care to provide a safe system of work.
In my opinion, it was open for the jury to find as they did. I consider that the jury was entitled not to be persuaded that there was a breach by the respondent which caused the appellant’s injury. I would dismiss the appeal. I set out my reasons.
The breaker bar incident
The appellant was a qualified motor mechanic who was employed by the respondent, a company responsible for the maintenance and refurbishment of ambulances and the conversion of vehicles into ambulances. He began his employment in May 2001 and after a three month trial began in the ‘mobile response group’. That work involved travelling to make repairs to ambulances beyond the respondent’s workshop in Yarraville. In April 2004, the appellant was transferred to the workshop.
When performing mechanical duties in the workshop, the appellant had the task of ensuring that the ambulances were in working order. This involved a wide array of physically stressful tasks that required a degree of fitness and dexterity. The appellant was required in the course of his work to position himself within the vehicle in awkward and confined spaces in order to conduct repairs. While in these spaces, the appellant would have to exert force when operating the tools of his trade, in order to manipulate the nuts, bolts and screws that affix the various replaceable parts of a vehicle to its chassis.
On 12 April 2005, the appellant was conducting mechanical repair work underneath an ambulance vehicle (‘the vehicle’). He was lying on his back on a ‘creeper’ (a six-wheeled mobile platform) underneath the vehicle tightening the bolts which affixed the rear seat base to the chassis of the vehicle. The location of the bolts on the underside of the vehicle meant that the appellant, a tall man, was in an awkward and cramped posture. The vehicle was not raised on a stand or a jack while the appellant was engaged in this task. The appellant estimated that he had previously conducted similar tasks roughly two to three times a week.
To tighten the bolts, the appellant made use of a ‘breaker bar’ and socket. The breaker bar was approximately 16 inches in length. This is a tool the end of which can twist to a 90 degree angle in which the socket is placed. It allows for access to narrow spaces while maintaining a degree of leverage. The breaker bar, being a simple lever, required manual force to be exerted on the bolt to secure it, unlike an air-powered tool such as a ‘rattle gun’. It did not provide feedback on the amount of force being applied, unlike a torque wrench that can be set to indicate when a certain torque has been reached.
As the appellant was underneath the vehicle, he felt a crack in the left-hand lower side of his neck and a pain that he described as being ‘like a stab wound’. It was disputed at trial as to whether the appellant had actually been exerting force at the time the injury was suffered, or whether he had suffered the injury as he reached up with his hands in preparation to tighten the bolt.[8] The evidence indicated that the bolt would have to be tensioned to 40kg of torque in order for it to be properly tightened.
[8]See [31]-[34] below.
After suffering the injury, the appellant continued to work in the hope that the pain would dissipate, and did not report the injury to his immediate supervisor, Mr Quentin Wells, until the next day. On that same day, the appellant went to his GP, Dr Sherriff, who provided him with a certificate of incapacity and prescribed painkillers, anti-inflammatories and physiotherapy. The appellant took leave from work for about 10 weeks. He then returned full-time to his pre-injury duties in the workshop. The appellant eventually stopped work completely in November 2005, and the respondent terminated his employment in May 2006 to take effect in July 2006. He has not found subsequent employment.
The appellant’s injury was principally an impairment in respect of the cervical spine, together with a near full thickness tear in the left supraspinatus tendon, as diagnosed by Mr Craig Mills, an orthopaedic surgeon. Both he and a Mr Kavar, a neurosurgeon to whom the appellant was referred by Dr Sheriff, recommended that the appellant have cervical spine surgery. The appellant refused surgery, however, due to the lack of guaranteed results. Dr Sheriff also referred the appellant to a psychiatrist, Dr George Wahr, in September 2007. Dr Wahr prescribed the appellant painkillers and anti-depressant medication. The appellant underwent several medical and psychiatric examinations after his injury was sustained.
The jury verdict
The appellant brought a civil action against the respondent by way of a writ filed 13 January 2010. The trial was before a judge of the County Court and a jury of six. The appellant sought damages for common law negligence[9] or, in the alternative, for an injury caused by a breach of statutory duty imposed by the regulations. The respondent denied all allegations. In his charge, the trial judge set out the three-step process for establishing a damages claim for breach of the regulations: first, that it was necessary for the appellant to establish that the regulations applied; secondly, that he must establish the fact of breach; and thirdly, that he must establish that the breach was a cause (not necessarily the sole cause) of the injury. As mentioned above, the jury delivered a verdict in favour of the respondent, finding that there had been no negligence or breach of the regulations that had caused the appellant’s injury. An application was made by the appellant for judgment non obstante veredicto[10] but the judge entered judgment for the respondent.
[9]As mentioned above, the claim in negligence was not pursued on appeal.
[10]That is, judgment notwithstanding the verdict.
The regulations
It is useful to set out the regulations in full, before moving to an examination of the evidence upon which the jury determined the question of whether the regulations applied, the question of breach and whether any breach caused the appellant’s injury.
Regulation 5 defines ‘manual handling’ to mean:
[A]ny activity requiring the use of force exerted by a person to lift, push, pull, carry or otherwise move, hold or restrain any object.
Regulation 5 defines ‘musculoskeletal disorder’ to mean:
[A]n injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time, but does not include an injury, illness or disease which is caused by crushing, entrapment or cut resulting primarily from the mechanical operation of the plant.
Regulation 13 sets out the definition of ‘hazardous manual handling’ and establishes the obligation to identify hazardous tasks before those tasks are undertaken:[11]
[11]The appellant relied on those characteristics of hazardous manual handling identified in regulation 13(2)(a)(i)–(iv).
(1)An employer must ensure that any task undertaken, or to be undertaken, by an employee involving hazardous manual handling is identified.
(2) In these Regulations, ‘hazardous manual handling’ means—
(a)manual handling having any of the following characteristics—
(i)repetitive or sustained application of force;
(ii)repetitive or sustained awkward posture;
(iii)repetitive or sustained movement;
(iv)application of high force;
(v)exposure to sustained vibration;
(b)manual handling of live persons or animals;
(c)manual handling of unstable or unbalanced loads or loads which are difficult to grasp or hold.
(3)Without affecting the generality of sub-regulation (1), an employer must ensure that any task involving hazardous manual handling is identified—
(a)before any task involving manual handling is undertaken for the first time in a workplace;
(b)before any alteration is made to objects used in a workplace or to systems of work which include a task involving manual handling, including a change in the place where that task is carried out;
(c)before an object is used for another purpose than for which it was designed if that other purpose may result in the person carrying out hazardous manual handling;
(d)if new or additional information about hazardous manual handling being associated with a task becomes available to the employer;
(e)if an occurrence of a musculoskeletal disorder in a workplace is reported by or on behalf of an employee.
Regulation 14 imposes the requirement that employers undertake a risk assessment with respect to tasks involving hazardous manual handling:[12]
[12]The appellant emphasised the factors in regulation 14(2)(a)–(e).
(1)If a task involving hazardous manual handling is identified in accordance with regulation 13, an employer must ensure that an assessment is made to determine whether there is any risk of a musculoskeletal disorder affecting an employee occurring as a result of that task.
(2)The employer must ensure that the assessment takes into account the following factors associated with carrying out the task being assessed—
(a)postures adopted;
(b)movements undertaken;
(c)forces exerted;
(d)environmental conditions, including heat, cold and vibration, that act directly on the person carrying out the task;
(e)the duration and frequency of the task.
(3)The employer must ensure that a risk assessment is reviewed and, where necessary, revised, or that another risk assessment is carried out if, as a result of any of the circumstances referred to in paragraphs (b) to (e) of regulation 13(3) or for any other reason, the first mentioned risk assessment does not adequately assess the risk of a musculoskeletal disorder affecting an employee occurring as a result of the relevant task.
(4)If a risk assessment carried out in accordance with this regulation determines that there is a risk of a musculoskeletal disorder affecting an employee occurring, the employer must ensure that the methods used to assess the risk and the results of the assessment are recorded and retained until a new risk assessment is required to be carried out in accordance with this regulation or until the task is no longer undertaken.
Regulation 15[13] imposes a stand-alone duty, separate from the duties imposed by regulations 13 and 14, requiring employers either to eliminate an employee’s risk of incurring a musculoskeletal disorder or to reduce that risk ‘so far as is practicable’:
[13]It was conceded by the respondent that regulation 15 applies to ‘manual handling ‘and is not confined to ‘hazardous manual handling’. In light of that concession, and given that I have concluded that there was no breach of regulation 15, even if applicable, there was no need to determine the controversy relating to the sphere of application of regulation 15 arising from Surmon v Herlad & Weekly Times Limited [2011] VSC 628, [105] (Kaye J) and Acir v Frosster Pty Ltd [2009] VSC 454, [220] (Forrest J).
(1) An employer must ensure that any risk of a musculoskeletal disorder affecting an employee occurring—
(a)is eliminated; or
(b)if it is not practicable to eliminate the risk, is reduced so far as is practicable.
(2)The employer must not use information, training or instruction in manual handling techniques as the sole or primary means of controlling risk unless the following ways of controlling risk are not practicable—
(a)altering—
(i)the workplace, or environmental conditions, including heat, cold and vibration, where the task involving manual handling is carried out; or
(ii)the systems of work used to carry out the task involving manual handling;
(b)changing the objects used in the task involving manual handling;
(c)using mechanical aids.
In summary, the appellant’s case to the jury rested upon the following propositions: (a) that the appellant’s task involved (at least) ‘manual handling’, and the respondent was under a duty imposed by regulation 15 either to eliminate the risk of musculoskeletal disorder, or to reduce the risk so far as was practicable, with which it had failed to comply; (b) that the appellant’s task involved ‘hazardous manual handling’, and as such regulations 13 and 14 read together imposed an additional duty upon the respondent to identify hazardous manual handling and, if so identified, to undertake a risk assessment before the hazardous task was undertaken for the first time in the workplace, which it had also failed to do; and (c) that the breach of one or other of the regulations caused the appellant’s injury.
The evidence at trial
In summary, at trial the appellant submitted that the respondent had breached its duties under regulations 13, 14 and 15 by failing to conduct a risk assessment or by failing to provide alternative tools or an alternative system of work that either would have eliminated, or reduced so far as is practicable, the risk that the appellant would be injured while tightening bolts. His primary position was that the task constituted hazardous manual handling for which the respondent had failed to carry out a risk assessment as set out in regulation 14. The respondent conceded that no risk assessment had been carried out. The appellant also argued that the respondent had failed to control the risk of musculoskeletal disorders as set out in regulation 15. For this to be the basis for establishing that a breach of the regulations caused the appellant’s injury, he was required to show that there were other practicable alternatives that would have reduced the risk of injury that should or would have been adopted had a risk assessment been performed, and the failure to do so was a cause of injury. The appellant argued in effect that the obligation imposed by regulation 15 did not depend on whether it would have been reasonable to have provided alternative tools; rather, the respondent was in breach if it did not eliminate the risk, or, if it was not practicable to eliminate the risk, to reduce the risk so far as was practicable. This was a higher duty than the duty to take reasonable care at common law.[14]
[14]The appellant did not submit that there had been a failure by the trial judge to make it clear to the jury that regulation 15 imposed a higher duty than that applicable at common law. As mentioned above, at n [7], there was no challenge to the judge’s charge to the jury.
The respondent argued at trial that it had not breached the regulations because the use of the breaker bar by the appellant did not put him at appreciably greater risk of injury in comparison to the proposed alternative approaches to that task, those alternatives being either impracticable or having their own risks.[15] It adopted a construction of regulation 15 by which the term ‘practicable’ was qualified by the notion of ‘reasonableness’, its obligation being only to reduce risk insofar as that was ‘reasonably’ practicable.[16]
[15]An allegation that the appellant was contributorily negligent was abandoned at trial.
[16]There was much debate at trial on whether there were ‘reasonable’ alternatives available. The question of whether practicability was qualified by a notion of ‘reasonableness’ was a matter that was unnecessary to decide on the appeal. The substance of the objection by the respondent to the alternative systems of work proposed by the appellant was that that each of the alternative systems of work carried its own risk of injury and was neither practicable nor reasonably practicable (if there was a difference).
The appellant sought to establish that the task engaged in by the appellant at the time he was injured came within the definition of ‘hazardous manual handling’ in regulation 13 because the task of tightening the bolts had characteristics of ‘repetitive or sustained application of force’ or ‘repetitive or sustained awkward posture’ or ‘application of high force’.[17]
[17]See [37] below.
This was contested by the respondent. It argued at trial that the task engaged in by the appellant when injured was not ‘hazardous manual handling’ within the meaning of regulation 13 and thus the respondent was not under an obligation to undertake a risk assessment in respect of it.[18]
[18]It was unnecessary on the appeal to determine if the task performed by the appellant involved hazardous manual handling or not because, the respondent argued, even if it did, the appellant was unable to establish that a failure to conduct a risk assessment caused the appellant’s injury.
With respect to the critical question of causation, the appellant adduced evidence at trial from Dr Andrew Liam Short, an expert in injury biomechanics, intended to demonstrate that alternative tools would have allowed the appellant either to exert less manual force (in the case of air-pressured tools) or to better measure the manual force necessary to properly tighten the bolts (in the case of a torque wrench).
The respondent emphasised that it was necessary to demonstrate how compliance with the regulations would have prevented the appellant’s injury. With respect to regulation 14, the evidence had to show that the risk assessment would have led to the avoidance of injury by precipitating an alteration of the way in which the task was performed. In this respect, the respondent relied principally on the evidence of Mr Bruce Desmond Barker, then Victorian Manager of the respondent, and Mr Wells.
(i) The appellant’s evidence
The appellant’s evidence was that he was a competent and experienced motor mechanic, having worked as a mechanic for close to 20 years. He knew more than the other mechanics about how to carry out tasks for the respondent. He did not need to be told anything about how to undertake those tasks; indeed, he felt that he could tell other mechanics how to do the job, including his supervisor, Mr Wells, and he did so from time to time.
To carry out the task leading to the breaker bar incident he had to fit into the space underneath the vehicle and adopt an awkward and squeezed position due to his height. His evidence was that he had undertaken the task with a breaker bar because no torque wrench or air-powered rattle gun was available for the task. He was unaware of any documentation or protocols that were to be followed when performing tasks underneath vehicles, nor had he been given instructions or supervision in performing the task. The respondent owned a hoist but it was not available to the appellant when performing the task. The workshop did not have a ‘pit’ or recess installed to facilitate access to the vehicle’s underside. The appellant could not recall whether somebody assisted him in performing the task by holding the bolts stable from inside the vehicle or whether the vehicle was raised (although he ultimately accepted that it was not raised). He considered that it would have been easier to access the bolts through the wheel arch by removing the wheel than to access them from underneath the creeper.
On the day of the injury the appellant was on the creeper tightening bolts and nuts from beneath the vehicle while at times resting his back sometimes on the rear wheel, sometimes on the axle, and sometimes on the chassis. In evidence-in-chief he stated that while tightening a bolt with the breaker bar, he heard a crack in the left hand side of his neck and what felt like a ‘stab wound’.
In cross-examination, counsel for the respondent put to the appellant what he submitted was a prior inconsistent statement which tended to cast doubt upon the credibility of the account of the accident given by the appellant in evidence. This was a statement made by the appellant dated 17 May 2005 after he lodged his worker’s compensation claim. Contrary to the uncertainty he expressed at trial, the appellant had deposed in his statement that the vehicle had been on the ground, and that somebody else had been stabilising the bolt from inside the ambulance at the time the injury was sustained.
In the statement the appellant described suffering the injury when reaching up to tighten a bolt. It was put to the appellant during cross-examination that he had made no mention in the statement of actually exerting force upon the bolt before sustaining the injury:
You then said [in the earlier statement], ‘I reached up with both hands using the breaker bar which has a swivel to allow the socket to be moved into place’? … Yes.
‘When I heard a click in the left-hand lower side of my neck’? … Correct.
So what it’s saying there is you felt the click as you reached up with both hands? …Yes.
Using the breaker bar? … Correct.
It doesn’t say anything about twisting or pushing or pulling or straining, does it? … It doesn’t mean I didn’t push.
But it says nothing about that, does it? … It looks like but it does not mean I didn’t push if I want to tighten it up, it’s common sense, if want to tight[en it] you have to push it.
Do you remember? … No, I can’t remember but it is common sense, it’s normal if you want to do the nut up you have to push it.
So the reality is you can’t remember how you hurt your neck at all can you? … I do remember how.
You have just told us you can’t remember? … I’m confused.
I don’t want to confuse you. … Would you repeat again and I will correct the answer.
Are you able to tell the jury whether you were pushing or pulling on the breaker bar or any piece of equipment? … Yes, I was pushing breaker bar.
You remember that, do you? … Yes, I do.
The respondent relied on this cross-examination on appeal to submit that the question of how the accident happened was very much in dispute at trial, as was the question of causation and whether the injury could have been avoided had the task been performed with alternative tools or by adopting a different method.
(ii) Dr Short
Dr Short’s evidence was led to demonstrate that there were alternative, practicable ways to reduce the risk of performing the task and that these would have been identified by a risk assessment if the respondent had undertaken one.
Dr Short had prepared two reports that outlined what he regarded as the dangerous features of the task conducted by the appellant on the day of the injury. The reports were based upon two inspections he had undertaken of the respondent’s premises on 5 November 2010 and 18 November 2010. On the former occasion he examined a 2010 Mercedes van, the rear wheels of which had been raised into the air. On the latter occasion he examined a 2005 Mercedes model ambulance, the type of Mercedes upon which the appellant was working at the time he suffered the injury.
Dr Short said that the exertion of force upon a bolt while on a creeper without brakes was like ‘trying to get into a building on roller-skates’. He regarded exertion whilst balancing upon an unstable surface as increasing the risk of hazard. He also said that the use of a creeper to access the underneath of a vehicle required a mechanic to adopt an awkward posture.
Dr Short gave evidence as to how the appellant’s risk of injury could have been practicably reduced had different tools been made available. He considered that a rattle gun or air-powered tool would be an improvement over the breaker bar used by the appellant because a rattle gun does not require the application of any force by the mechanic. If an air-powered tool was not available, he considered that a torque wrench might also have reduced the risk of injury. In his view, a torque wrench was superior to a breaker bar because the former would have allowed the appellant precisely to calculate the maximum degree of force required to tighten the bolt to specification and avoid any slippages or over-exertion, a torque wrench having a releasable head once the set point is reached.
He said that different systems of work would have practicably reduced the risk of injury; for example, the use of a hoist to lift the vehicle in order to avoid having to adopt an awkward position while using the creeper, or the removal of the rear passenger side wheel to allow better access to the bolts in addition to using the hoist. He also recommended training as the academic literature suggested this would make a positive contribution to reduced injury rates. His preferred option was a redesign of the manner in which seats were affixed to vehicles altogether, through the use of an ‘aeroplane type system’ which would allow the seats to slot into runners installed in the base of the vehicle; or installing upward-facing bolts, welded in place, so as to tighten the nuts from within the vehicle without having to go underneath; or by welding nuts into the seat frame itself and dropping the frame onto the floor, with bolts already welded into the floor of the ambulance, and then working through access holes to tighten.
In cross-examination, Dr Short conceded that his expertise was in occupational risk and not motor mechanics or fixing cars. He had done extensive work on the failure of knee implants, and upper limb fractures suffered by children in playgrounds, especially injuries sustained in swimming. He agreed that he had not actually tried to remove the rear wheel of the vehicle to see if it was safer. He accepted that using a hoist to raise the vehicle would be dangerous because the work would have to be done from under the vehicle and this might involve bending; or it might require the mechanic to work ‘blind’ without being able to see the bolts but just being able to feel them, and working blind would not be a good idea; or it might involve squatting to look up and under which might hurt a mechanic’s back. He accepted that the use of a rattle gun could cause injury because if there was no pre-set tension on the gun then when it reached full lock it would stop so that the drill would start spinning, and it could also cause significant injury to an operator if the socket was not properly placed over the head of the bolt because the gun could jack-knife. Dr Short indicated that his opinion was based upon the information he had been given that the task the appellant had engaged in only occurred about 12 times a year. This was in direct contradiction to the appellant’s own evidence that he had engaged in that type of task two to three times a week.
(iii) Mr Barker and Mr Wells
Mr Barker gave evidence to the effect that he personally never had difficulty performing the task alleged to have injured the appellant. He described the bolts underneath the vehicle as being easily accessible using a creeper. He had never heard of another worker encountering problems when performing the task or sustaining injuries while doing so. He compared the force required to tighten the bolts as equivalent to that of changing a flat tyre. In cross-examination he accepted that the changing of a tyre was a task which was typically accomplished in workshops using a rattle gun and that the respondent’s mobile mechanics had been given rattle guns to change tyres. He also accepted that the task as performed was awkward and uncomfortable.
Mr Wells also had no difficulty in carrying out the task. There had never been any other complaints of which he was aware. In particular, there had been no complaint that lying on a creeper to tighten a bolt required the adopting of an awkward position or the exerting of a high degree of force. He accepted during cross-examination that, as the appellant was a 60-year-old man, he might have had greater difficulty in carrying out the task than a younger man would have.
Both Mr Barker and Mr Wells gave evidence that torque wrenches were available to carry out mechanical tasks in the workshop, and indeed were often used to perform the same task as the one being performed by the appellant at the time of the injury. They both accepted, however, that typically there was only one torque wrench in the workshop mechanical area at any given time and that a range of repairs to the vehicle would make use of the torque wrench. Mr Wells disagreed that there was a shortage of tools but accepted that complaints had been made about the shortage of tools as an excuse for slow performance.
Mr Barker and Mr Wells gave evidence that the alternatives proposed by Dr Short posed their own risks. Mr Barker regarded the rattle gun as heavy and prone to slippage. Mr Wells said that, because of a rattle gun’s inability to measure the torque of a tightened bolt, a bolt so tightened would inevitably require the manual application of force with a torque wrench. Mr Barker considered that using a hoist would create more risk of injury than using the creeper, and was prohibited by the respondent, because tightening the bolts was a two-person job, requiring one person in the ambulance to stabilise the bolt being tightened, and it would be unsafe to have someone in the vehicle when it was raised on a hoist. Mr Wells said that tightening the bolts while the ambulance was on a hoist would place comparatively more strain on a mechanic’s back and neck by comparison with lying flat on a creeper. He considered that a creeper with a brake would have made little difference to the risk posed by the task as performed. Mr Barker accepted that while the appellant had not received training about going under an ambulance on a creeper, he considered that the appellant would have already had the relevant training as a qualified mechanic.
Mr Barker rejected the practicability of the ‘aeroplane type’ seat locking system because it would be necessary to put the tracking into the floor, which would take about four times more bolts than was necessary for the seat base. The evidence was that it would also be impracticable to have upward-facing bolts secured in place on the floor with the frame dropped onto them and the tightening of the nuts onto the bolts done from within the vehicle, or the nuts also welded into place on the frame with tightening achieved through access holes. This was because, as Mr Barker said, ‘the bolts go down … it’s impossible to do it from the top’, ‘you can’t put the bolt up’, and, as Mr Barker and Mr Wells both said, any welding of the nut would have melted the nylon inside the nut, rendering it useless.
The appeal
The grounds of appeal relied upon by the appellant were as follows:[19]
[19]The appellant advanced additional grounds of appeal (grounds 3, 4 and 5) to the effect that the trial judge had failed properly to rule upon the appellant’s motion for judgment non obstante veredicto, or, if he did rule then the ruling that there was no breach was wrong in law and he failed to provide any, or adequate, reasons for so ruling. However, on the hearing of the appeal, the appellant’s counsel resiled from these grounds.
(1) That the verdict and judgment that there was no breach by the respondent of the regulations which was a cause of injury to the appellant was wrong in law, or alternatively, against the evidence or the weight of the evidence;
(2) Without limiting the generality of ground 1, that it was not open to the jury on the evidence to find that there was no breach by the respondent of the Regulations which was a cause of injury to the appellant.
(6) To the extent the trial judge was of the view – ‘What you’re asking me to do is to say as a matter of certainty that it would have ended up doing the situation you described that Mr Barker said’ – the trial judge erred in law as to what the appellant was required to establish in order to succeed in his cause of action for breach of the regulations.
Grounds 1 and 2
To succeed on appeal on the ground that a verdict was ‘not open’ or ‘not reasonably open’ on the evidence is a demanding task. It involves the assertion that on the available evidence a jury acting reasonably could not have arrived at the conclusion that they did and as such could only have done so as an error of law. It is insufficient for an appellate court to disagree with the assessment of the evidence by the jury. Rather, it is necessary to determine whether the evidence compelled a conclusion favourable to the appellant.[20] As the High Court said in Calin v The Greater Union Organisation Pty Ltd:[21]
The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.
[20]Capers v State of Victoria [2011] VSCA 97.
[21](1991) 173 CLR 33, 41 (Mason CJ, Deane, Toohey and McHugh JJ) (original emphasis). See also Clark v Stingel [2007] VSCA 292, [66]-[67] (Warren CJ, Chernov and Kellam JJA). More than a ‘scintilla’ of evidence is required to support a verdict: See Hocking v Bell (1945) 71 CLR 430, 441.
It is insufficient for an appellate court to determine that most juries would have delivered a different verdict. Furthermore, it is necessary to look at the evidence from the view most favourable to the respondent as this would have been a permissible path of reasoning for the jury. As Ashley JA said in Capers v State of Victoria:[22]
[T]o say that the jury might have so concluded or to say … that most judges and most juries would have so concluded, does not resolve the matter in the appellant’s favour. Again and again it has been emphasised that a party that carried the onus of proof upon an issue at a trial by judge and jury, and failed, faces a very difficult task in attempting to satisfy an appellate court that it should overturn the judgment which eventuated. Again, it is not in dispute that, in considering an appeal of the present kind, an appellate court must take a view of the evidence most favourable to the respondent; and must be persuaded, upon such a view of the evidence, that there was no evidence which left it reasonably open to the jury to resolve the matter as it did.
[22][2011] VSCA 97, [35] (with whose judgment Warren CJ and Kyrou AJA agreed).
These observations reflect those made by Winneke CJ, for the Court, in Pujik v Savic,[23] in an appeal from a finding by a jury of no negligence:[24]
In accordance with the principles which govern an appeal of this kind, an appellate court must take the view of the evidence most favourable to the respondents. To succeed, the appellant must establish that on such a view of the evidence, a reasonable jury, properly directed and confining itself to relevant considerations, could not have failed to find negligence on the part of the respondent … which was a cause of the collision.
[23][1971] VR 632 (Winneke CJ, Starke and Anderson JJ).
[24]Ibid 632-3. See also, to the same effect, Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308, 311.
The Full Court of the Supreme Court in Zoukra v Lowenstern emphasised that a finding of no negligence was essentially a jury question:[25]
This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in the respondent’s favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue would be interfered with upon appeal.
[25][1958] VR 594, 595 (Herring CJ, O’Bryan and Dean JJ).
The same considerations apply to a finding by a jury on the issues of breach of a statutory duty and whether that breach caused a plaintiff’s injury.
Thus, the threshold the appellant needed to meet to succeed on the appeal was a formidable one.
The appellant submitted that the regulations were breached because there were measures, upon which Dr Short gave evidence, which could have been used by the respondent to eliminate or reduce the risk of injury to the appellant, and these were not undertaken, including:
(1) Relevant training;
(2) A risk assessment should have been conducted with a view to trialling tools and equipment to be used in the task which might have identified the alternatives proposed by Dr Short;
(3) A torque wrench should have been available because it was preferable to a breaker bar and cost less than $500;
(4) Alternatives should have been sought for the mobile creeper which created a high risk of injury because of the instability of the work platform;
(5) A hoist (as was used in another area of the factory) could have been used to enable a safer working position that avoided twisting and torsion;[26]
[26]There was an additional alternative canvassed which was a variation on the use of a hoist, namely, that the rear tyre on the passenger side be removed in addition to using a hoist. However, the evidence of Mr Barker was that he thought this would not make much difference to being able to access the bolts. Wells said that his understanding was that the hoist held up the vehicle by the tyres. Dr Short did not in fact take off the rear wheel despite it being an alternative posited by him and did not test the validity of that alternative.
(6) An alternative design would have been to use slots and click as used in aircraft seating, which would have eliminated the need for bolts and nuts altogether;
(7) Further, another alternative design might have incorporated the welding of bolts and/or nuts and the use of access holes.
The appellant submitted that there was no evidence adduced by the respondent demonstrating compliance with the regulations, either by way of a risk assessment (as mentioned above, conceded by the respondent not to have been performed), or the taking of practicable steps to eliminate or reduce the risk, or evidence that it was not practicable to eliminate the risk.
The difficulty the appellant had to overcome, and, in my opinion, what he could not overcome, was to demonstrate that any breach by the respondent had caused the injury the appellant suffered. On the issue of causation, it was incumbent upon the appellant to show that the lack of availability of alternative tools, or the failure to adopt a different system of work, or the failure to carry out a risk assessment, or the lack of training, caused the appellant’s injury.
With respect to the question of the lack of alternative tools, most particularly the lack of an available torque wrench, there were relevantly three critical flaws in the appellant’s case:
(1) The evidence did not compel the conclusion that the appellant was exerting force on the bolt at the time he suffered the injury; the evidence from the appellant was contradictory on this issue. While the appellant ultimately claimed that he could remember what happened and that what had happened involved him experiencing a sharp pain while he was tightening the bolt with the breaker bar, it was open on the evidence for the jury to conclude that the injury occurred while he was lying on his back on the creeper stretching his hand up before he exerted any force on the bolt. The cross-examination of the appellant, and the existence of his prior inconsistent statement, was telling in this regard. The jury were entitled to accept the version in the earlier written statement or at least to reject the appellant’s oral evidence. This would have supported the jury in the conclusion that the lack of a torque wrench, or any other tool such as a rattle gun, played no part in bringing about the injury for the simple reason that the injury occurred before any tool had been used on the bolt. The appellant’s evidence was that he completed the task after experiencing the sharp pain and so it could not be inferred from the point at which he discontinued the task that this was the moment at which the injury occurred. This evidence undermined the whole of the appellant’s case based upon any failure by the respondent to make available alternative tools – indeed, it was devastating to that aspect of the appellant’s case.
(2) The evidence did not compel the conclusion that the force exerted by the appellant on the bolt was in excess of 40kg. While a torque wrench may have had the advantage of ensuring that the required pressure on the bolt could be set so that the appellant would not have gone beyond the set point, the jury was entitled, on the evidence, to take the view either that the appellant may not have exerted more than 40kg of force or that the injury the appellant suffered occurred before he pushed as hard as 40 kgs. Both approaches were equally as detrimental to the appellant’s case. The unavailability of a torque wrench would have been relevant if the evidence showed that the appellant had applied more than 40 kgs of force and that the injury was suffered when the appellant did this, but the evidence did not go this far in either respect. The evidence from Mr Barker that to reach the required torque you had to push to 40kgs, relied on by the appellant, was not sufficient to support the proposition that if a torque wrench had been used the injury would not have occurred. It is only if the evidence had demonstrated that the appellant had exerted more than 40 kgs force, which he would not have done using a torque wrench, and that this excessive force caused the injury, that the appellant’s case, insofar as it relied on the unavailability of a torque wrench, could have been successful. The evidence did not go this far. As the respondent argued, this was not an ‘over-tightening’ case. In any event, the respondent’s evidence was that torque wrenches were available and the jury was entitled to rely on that evidence.
(3) There was evidence that the alternative tools proposed carried their own risks; in particular, Dr Short conceded that a rattle gun could cause injury and that the risk was compounded when used by an operator lying down.
The jury were also entitled to take the view that the evidence did not compel the conclusion that the failure to adopt a different system of work caused the injury. There was no evidence that would have compelled the jury to conclude that if a risk assessment had been performed, and the alternatives proposed by Dr Short identified, it would have led to any relevant change in the system that would have prevented the appellant’s injury. The jury were entitled to rely upon the evidence given by Mr Barker and Mr Wells, as well as the evidence given by Dr Short in cross-examination, to the effect that the alternatives suggested by Dr Short were impracticable and created their own, different, risks.
In particular, there was evidence that:
· A brake on the creeper would have made no difference; there was no suggestion that the injury occurred because the appellant flew off the creeper because of its instability;
· Placing the ambulance in a hoist would have been unsafe and impracticable because, as it was a two-person job, it would have been necessary for one worker to be in the back of the suspended vehicle to hold the bolt;
· Use of a hoist may have required the appellant to twist and turn to look under the ambulance and could have placed more strain on the appellant’s back and neck than lying flat on the creeper where the back and neck were supported; a mechanic’s back could be hurt if twisting or squatting to see the bolts and it would be dangerous to work ‘blind’ without being able to see the bolts or to bend if the vehicle was above head height;
· Use of the slots and click as used in aircraft seating would have required the installation of tracking onto the floor of the ambulance and that would have taken about four times more bolts than was needed for the seat base to provide an equivalent degree of security as from the use of nuts and bolts; this would have more than replicated the risks associated with the task performed by the appellant;
· It was impossible for bolts to be upward-facing;
· Nuts could not be welded onto the seat frame because the nylon on the inside of the nut would melt.
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 have reduced the risk of injury.[27] 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. So too, they may have concluded that the appellant did not require training because he was the most experienced of his team and, at times, told other mechanics, including his supervisor, how to do the job. The appellant was unable to identify how or why the jury was compelled to find that compliance with the regulations would have prevented injury.
[27]The attack on Dr Short went beyond that of his opinion to that of his expertise; it extended to the fact that he was not a mechanic; had not been under an ambulance before; had not used a creeper before; used the creeper inappropriately; formed his opinions on the basis of a view of the workplace that was not set up as it was at the time of the appellant’s injury; misunderstood the frequency of the task performed by the appellant; stated that his expertise was not in fixing cars and conceded that nothing is effectively risk free. This was quite different from the manner in which the evidence was received of the appellants’ safety consultants in Surmon v Herald & Weekly Times Limited [2011] VSC 607 and Franklin v Kone Elevators Pty Ltd [2011] VSC 108.
The appellant’s response to these difficulties in the evidence was to argue that it was unnecessary for him to establish causation. It was submitted that a breach of the regulations was sufficient to demonstrate the liability of the respondent. In other words, the evidence that no assessment had been carried out to determine whether there was a risk of a musculoskeletal disorder occurring as a result of the task should have, without more, been determinative of liability.
The appellant argued that once a breach of the regulations is proved it can be generally inferred that the breach caused the injury for which relief is sought. He submitted that little attention is paid to the question of causation once a breach is established, in the absence of proof by a defendant that the breach did not cause the injury. Whether the breach caused the injury here was argued to be a matter that was tantamount to an immediate inference, just as, analogously, if a hand is caught in an unguarded dangerous machine the inference can readily be drawn that the absence of a suitable guard or safety screen caused the injury.[28] In any event, the appellant submitted, if proof of causation was required, the only evidence was that the way the work was performed was a cause of injury to the appellant, and that, in particular, the use of a torque wrench would have avoided the injury.
[28]See Betts v Whittingslowe (1946) 71 CLR 637 where the statutory duty of the employer was to securely fence and safeguard all dangerous parts of machinery.
The respondent resisted this view and argued that it was a mistake to assume that the jury’s verdict could rest on breach alone. The appellant was required to show how a failure to comply with the regulations had caused the injury and it was open to the jury to conclude that it had not done so.
The respondent’s submission should be accepted. It is true that courts have readily upheld causal inferences drawn from a breach of statutory duty where it is clear that the injury suffered was of a kind that would obviously result from a breach, especially where an injury of the type suffered was a foreseeable risk, most famously by Dixon J in Betts v Whittingslowe.[29] Yet it cannot be correct at law that a breach of a regulation, no matter how remote from the injury, can be taken in all instances as automatically establishing a causal presumption that must be rebutted by a defendant. As Kiefel J observed in Roads and Traffic Authority v Royal:[30]
[Dixon J’s] reasons [in Betts] do not suggest any presumption to operate or any alteration to the requirement of proof of causation. They have not been understood to suggest any lessening of it. As Dixon CJ later confirmed in his judgment in Jones v Dunkel, the facts proved must form a reasonable basis for a definite conclusion, affirmatively drawn.
The statement of Dixon J in Betts does not provide support for a conclusion of liability to be drawn from a failure to address, or reduce, a risk.
[29](1946) 71 CLR 637, 649 (Dixon J); see also the judgment of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408, 420-1 and its application by Beach J in Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 665, 677-8 [34]-[36].
[30](2008) 245 ALR 653, 688 [139]-[140] (citations omitted). See also 661 [27], 662-3 [31]-[33] (Gummow, Hayne and Heydon JJ).
And later:[31]
It has been suggested that a finding that an injury has occurred within an identified area of foreseeable risk may be sufficient to prove that it has caused or materially contributed to the injury. The conclusion so reached has been explained by a shift in the evidentiary onus of proof taking place.
…
It remains a requirement of the law that a plaintiff prove that a defendant’s conduct materially caused the injury. Nothing said in Betts detracts from that requirement, which forms the basis for the restatement of the test of causation in March [v Stramere]. The question whether there is no real distinction between breach of duty and causation, and the question whether a failure to take steps which would reduce a risk amounts to a material contribution to the injury, have been discussed elsewhere in connection to a possible shift in the onus of proof. No decision of this court holds that there is that equivalence or some lessening of the requirement of proof. As the majority in Bennett observed, they are questions which have not been considered by this court.
The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Dunkel said that one ‘does not pass from the realm of conjecture into the realm of inference’ unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This inquiry is consistent with the commonsense approach required by March.
[31]Ibid 688-9 [141], [143] (citations omitted).
Here, the link between breach and injury cannot be characterised as so apparent that it did not require the appellant to demonstrate causation. The evidence of Mr Barker and Mr Wells, if accepted, as the jury was entitled to do, made it plain that the circumstances were not analogous to a failure to maintain a guard or safety screen in front of a dangerous machine – the inference that the adoption of a simple alternative would have in all probability precluded the injury from occurring
was not available. It was thus necessary for the appellant to establish causation on the evidence.[32] However, the evidence before the jury left the question of causation very much under-determined.
[32]See, for example, Surmon v Herald & Weekly Times [2011] VSC 628, [108]-[109].
The flaws identified above seriously detract from the appellant’s case. Even on the assumption that there had been a failure by the respondent to provide a torque wrench or a rattle gun and that this was a breach of the regulations, it was open to the jury to accept on the evidence that the appellant sustained his injury while reaching up in preparation to apply force to the bolt. The manner of tool used would have been immaterial. It was also open for the jury to accept on the evidence that the appellant’s injury was sustained by the fact of exertion, as opposed to the degree of exertion. The fact of exertion was an unavoidable aspect of the task and would not have been mitigated by the use of a torque wrench or a rattle gun. So too, the proposed brake on the creeper would not have prevented either the extension of the appellant’s arms or the fact of exertion.
In my view, the jury were entitled to accept that there were shortcomings in the appellant’s own evidence, and in the evidence of Dr Short. Furthermore, they were entitled to accept the evidence relied upon by the respondent. As discussed above, it is the evidence most favourable to the respondent upon which this appeal must be determined. On that basis, the verdict of the jury was open.
Grounds 1 and 2 should be rejected.
Ground 6
In support of ground 6 the appellant submitted that the judge, in exchange with counsel, on a number of occasions referred to matters which he claimed it was necessary for the appellant to prove in order to make good his case with respect to a breach of the regulations.
For example, the judge said:
(1) How do you know that’s the product of an assessment? How do you make that leap?
(2) Why do you say that if an assessment had been held in a timely way that a risk assessment would have come to the view that the work should have been performed that way rather than another way? … All you have before you is an expert giving a variety of maybe’s and possibilities but really until such time we do a risk assessment of everything we don’t know where this is going to end up.
(3) What you’re asking me to do is say as a matter of certainty that it would have ended up doing the situation you described that Mr Barker said.
The appellant argued that the judge erred in suggesting that it was necessary for the appellant to prove what the outcome of a risk assessment, carried out in compliance with regulation 14, would have been, as a ‘certainty’ or what the respondent’s response to a risk assessment would have been. The relevance of the evidence of Dr Short was simply to point to a variety of appropriate responses which might have been made had a risk assessment been undertaken, evidence of that nature having been referred to on numerous occasions by judges in assessing breach of statutory duty.[33] It was submitted by the appellant that, on the balance of probabilities, Dr Short’s evidence demonstrated that a risk assessment would have disclosed to the respondent any one of a number of alternative and safer methods of
performing the task undertaken by the appellant.
[33]See, in particular, Surmon v Herald & Weekly Times Limited [2011] VSCA 628, [38]-[40]; Franklin v Kone Elevators Pty Ltd [2011] VSCA 108, [129] (Macaulay AJA); Acir v Frosster Pty Ltd [2009] VSC 454 [228]-[229](J Forrest J).
The problem for the appellant is that this ground of appeal suffers from the same flaws as grounds 1 and 2. The jury was entitled to conclude, on the evidence most favourable to the respondent, that Dr Short’s evidence did not demonstrate that there were a number of alternative methods that were safer than the method employed by the appellant when he was injured. Each of the alternatives canvassed carried risks of injury to an operator. While it was not necessary for the appellant to establish with certainty that any particular alternative would have been adopted by the respondent, if it had carried out a risk assessment, the fact was that on the evidence each of the alternatives exhibited potential danger. This undermined the conclusion which was necessary for the appellant to establish, namely, that adoption of one or more of the alternatives would have been safer and would have been likely to have led to the appellant avoiding injury. The appellant was unable to make out this case.
Ground 6 should be rejected.
Conclusion
The appeal should be dismissed.
DAVIES AJA:
I also agree with Tate JA.
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