Frank v Rover Scott Bonnar Ltd

[1992] QCA 368

IN THE COURT OF APPEAL

[1992] QCA 368

SUPREME COURT OF QUEENSLAND

Appeal No. 77 of 1992

Before The Chief Justice

Mr. Justice Davies

Mr. Justice Ambrose

BETWEEN:

ANNA MARIA FRANK

(Plaintiff) Respondent

AND:

ROVER SCOTT BONNAR LTD.

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 28th day of October 1992.

CATCHWORDS

Negligence, contributory negligence, safe work place

practices, warning as to practices.

Counsel:	Mr. Williams QC with Mr. McDougall for the Appellant.
Mr. M.W. Forde for the Respondent.
Solicitors:	Minter Ellison, Morris & Fletcher for the Appellant.
Grasso Searles and Romano for the Respondent.

Hearing date: 4th September 1992.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 77 of 1992

BETWEEN:

ANNA MARIA FRANK

(Plaintiff) Respondent

AND:

ROVER SCOTT BONNAR LTD.

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered on the 28th day of October 1992.

This is an appeal by an employer against a finding that it was guilty of negligence resulting in physical injury to its employee. The respondent was awarded the sum of $85,718.15 damages in respect of that injury.

There is no challenge to the quantum of damages awarded in this case. The appellant contends that upon the evidence, it was not negligent and further that the negligence alleged against it on the evidence could not have been causative of the respondent's injury. It is further contended for the appellant that the learned trial Judge erred in failing to find contributory negligence against the respondent.

The facts may be stated shortly. At the time of her injury, the respondent was nineteen years of age. She had been employed in the appellant's factory for approximately four months. She gave evidence to the effect that she suffered her injury on the first occasion upon which she performed the type of work in which she was engaged on the afternoon of 21st May 1984. Her evidence was that prior to that occasion she had worked in and about the appellant's factory assisting in the performance of various tasks but that it was on the afternoon of the date specified that she first worked at unpacking motors from a cardboard container.

She said that she had to remove from a large cardboard container electric motors, cylindrical in shape, each weighing about seven kilograms. These motors were packed in two levels in the container and were separated from each other by cardboard partitioning.

There was evidence from other employees at the factory that in fact the respondent had previously performed this task. The learned trial Judge however preferred the evidence of the respondent on this point. He was clearly entitled to do so, taking advantage of the opportunity he had to assess the reliability of the various witnesses who gave evidence.

Upon the evidence, the learned trial Judge found that the respondent on the afternoon in question spent about three and a half hours lifting electric motors from the container to a work bench where she attached wires to them.

At some stage she was bending over and stretching into the
cardboard container lifting out motors from its lower level.
He found that for this purpose she stood beside the

container and lent over its edge (which was about twenty-nine inches above floor level), keeping her knees straight and touching its side; she bent over and stretched into the container to take hold of the tops of the motors, some of which were beneath knee level, and lifted them by straightening her back.

At no stage during the afternoon, when she was engaged in performing this task, did the respondent suffer any back symptoms. The medical evidence disclosed that she had a spine which was pre-disposed to give trouble. Prior to the afternoon in question, she had suffered no symptoms from that natural condition. The learned trial Judge found that the events of that afternoon accelerated the onset of back symptoms which the respondent would probably have experienced at some time in the future in any event.

On the day in question, the respondent ceased work and went home. The following morning she woke to find disabling back symptoms, and upon the medical evidence the learned trial Judge found that the type of lifting that she said she did on the afternoon preceding the appearance of these symptoms, was sufficient to impose a stress on the spine of the respondent who had a pre-disposition to spinal trouble.

The respondent gave evidence that over the period of about four months preceding the afternoon on which she unloaded motors out of the carton, she had done other types of factory work on the appellant's premises which had not been followed by symptoms of pain or disability in the back.

There was medical evidence which the learned trial Judge accepted that, assuming other types of work she had performed in the factory had not caused symptoms in her back, the afternoon's work of which she complained, which involved lifting motors from the box, probably was the cause of the disability of which the respondent first became aware the following day.

The learned trial Judge accepted the respondent's evidence that the container from which she removed motors on the afternoon in question, was partly distorted and that it was necessary for her to "tug at" the motors in the middle area of the lower section of the box to remove them. He found that it was this activity which probably exposed the respondent to a strain which produced the disabling symptoms in her back.

The trial Judge found that that strain to the respondent's back and the resulting injury could have been avoided by the respondent had she cut or torn away part of the side of the cardboard container to enable her to more easily reach the motors in the lower middle area of the box.

The learned trial Judge found that the appellant did not give her any instruction that she was to proceed to unload the motors in that way. She said that she had never observed other people take that course and that she did not think of taking it herself.

The learned trial Judge held that the appellant should have instructed the respondent to progressively destroy or break away the side of the cardboard container, when necessary to facilitate her ready access to the motors in the container, so that she could lift them by keeping her knees bent and so avoid placing unnecessary strain on her back as she lifted.

The learned trial Judge found that the respondent was of slightly below average intellect and that she was a credible witness.

The respondent gave evidence that the appellant had instructed her in proper lifting procedures which involved bending her knees to lift weights. She said that she normally utilised those methods but, in the performance of the task involved in lifting motors from the lower level centre of the cardboard container, she had to have her knees up against the side of the box which contained the motors and that prevented her from bending them.

In the course of his reasons, the learned trial Judge

observed:

"Mr. Forde then submitted that the plaintiff should have been instructed to crumple the box progressively as she removed the motors so that she would end up with direct access to the motors in the nether regions of the box. Mrs. Heffler gave evidence which I accept that there was generally a knife available and Mr. Francis also spoke about this and that it could be used to cut away the box or - as is obvious - that one could simply tear the cardboard away if it were impeding access to the motors ... ."

For the appellant it is contended that the observation of the learned trial Judge that it was obvious "that one could simply tear the cardboard away if it were impeding access to the motors" correctly summarised the situation and that upon this approach it was really not open to find that the appellant was negligent in failing to advise the respondent of a course of conduct which as he observed was "obvious".

We take the view that the observation of the learned trial Judge upon which the appellant relies must be considered in context. He found that on the afternoon in question the respondent was asked for the first time to perform this task of removing motors from the cardboard box.

There was no evidence drawn to our attention as to what the appellant used to do with the cardboard containers after they had been unpacked. His Honour's observation was made in the course of his considering evidence by two fellow employees of the respondent at the material time as to how the container in question may have been cut or torn away to enable the person unloading it to do so with less strain to the back. In the context in which that observation was made, it is clear that the learned trial Judge was simply commenting upon evidence elicited from two of the fellow employees of the respondent as to how the box may have been progressively cut or torn away as unloading proceeded so that the respondent may have been able to avoid back strain to the extent she suffered. Both witnesses had significantly more experience working in the appellant's factory than had the respondent.

It is clear upon the evidence which the learned trial Judge accepted that the respondent spent the afternoon in question performing work in a manner which placed unnecessary strain on her spine. The evidence suggests that she performed this work in the view of other employees of the appellant and that nobody suggested to her to cut or tear away the side of the container so that she might more safely remove the seven kilogram motors from it.

The finding of causative negligence on the part of the appellant made by the learned trial Judge was open upon the evidence.

With respect to the question of contributory negligence of the respondent, the onus was on the appellant to prove contributory negligence.

The respondent was a nineteen year old girl of slightly below average intellect. She had worked in the appellant's factory for about four months before she was asked to perform for the first time what must have seemed a relatively simple operation of lifting motors weighing about seven kilograms from a container to a bench and working upon them there for a short time. There is no evidence that she had ever seen any other persons actually performing this work or that she had ever observed them cutting or tearing away the side of a cardboard container in which the motors were packed when pressures caused by the deformed sides of the container impeded the removal of some of those motors.

There is nothing to suggest that any person during the afternoon when the respondent was unpacking the deformed carton suggested that she tear or cut the carton to facilitate the more ready removal of the motors. We are not persuaded in the circumstances of this case that the evidence required a finding of contributory negligence against the respondent.

We would therefore dismiss the appeal. We order the appellant to pay the respondent's costs of the appeal to be taxed.