Hardy v St Vincent's Hospital Toowoomba Ltd

[1998] QCA 86

IN THE COURT OF APPEAL	[1998] QCA 086
SUPREME COURT OF QUEENSLAND
Appeal No. 7477 of 1997.
Brisbane
[St Vincent’s Hospital Toowoomba Ltd v. Hardy]
BETWEEN:

ST VINCENT’S HOSPITAL TOOWOOMBA LTD
ACN 055 196 533

(Defendant) Appellant

AND:

BETTE HARDY

(Plaintiff) Respondent

___________________________________________________________________________

Pincus J.A. Davies J.A. Ambrose J.

___________________________________________________________________________

Judgment delivered 6 May 1998

Judgment of the Court
___________________________________________________________________________

1.          APPEAL ALLOWED TO THE EXTENT OF REDUCING THE JUDGMENT IN FAVOUR OF THE PLAINTIFF RESPONDENT TO $19,379.79.

2.          THE APPEAL IS OTHERWISE DISMISSED.

3.          THE APPELLANT IS TO PAY THE RESPONDENT’S COSTS, HERE AND BELOW.

___________________________________________________________________________

CATCHWORDS: PERSONAL INJURY - whether breach of s. 9(1) Workplace Health &

Safety Act 1989 - meaning of "practicable" - whether s. 9(1) is to apply only to measures necessary to avert reasonably foreseeable harm to an employee - meaning of "ensure" - damages - reduced to $19,379.79 - whether costs should be allowed only on the Magistrates Court Scale. Workplace Health & Safety Act 1989 s. 9

Counsel:	Mr D J Campbell for the appellant. Mr G R Mullins for the respondent.
Solicitors:	Hede Byrne and Hall for the appellant. Shine Roche McGowan for the respondent.
Hearing date:	24 April 1998.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 7477 of 1997.

Brisbane

Before Pincus J.A.
Davies J.A.

Ambrose J.

[St Vincent’s Hospital Toowoomba Ltd v. Hardy]

BETWEEN:

ST VINCENT’S HOSPITAL TOOWOOMBA LTD
ACN 055 196 533

(Defendant) Appellant

AND:

BETTE HARDY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 May 1998

This is an appeal from a judgment of the District Court in favour of the plaintiff in a personal

injuries case. It relates to both liability and quantum; as to the latter, it is agreed that the amount of

damages awarded must be reduced by a certain sum, as we shall later explain. The case is one which

it could be said that the plaintiff was fortunate to win; but the decision in her favour is challenged only

on a rather narrow basis.

The plaintiff respondent was injured on 8 September 1993 when she fell while ascending stairs

in the course of her duties as an employee of the defendant appellant. She was working as a hospital

cleaner, her hours being from 6.30 a.m. to 3 p.m. The plaintiff suffered her injury almost at the end of

the shift when she was tired; the judge said that the "position was simply that she was 63 and the job was getting beyond her". There was nothing wrong with the stairs; the plaintiff’s case was that she had

to move up and down the stairs quite often in the building, which had four storeys, and that she would

not have fallen if she had used a lift. The judge thought it likely that the practice was that:

". . . ordinarily cleaners would not use lifts unless they were moving equipment from floor to floor, and that . . . practice was largely the result of some official discouragement of cleaners from using the lifts in a way which might interfere with or inconvenience patients".

His Honour was not satisfied that any real problems would have been "caused by cleaners using lifts at

a time when they were not immediately required by patients". He thought that the defendant should have

at least permitted the use of a lift, if not encouraged or required its use.

His Honour was satisfied that there was "some policy of official discouragement of cleaners

from using lifts except when there was some good reason to do so . . .". He found that but for that

policy the plaintiff would have used the lift on the occasion in question and that the employer’s policy

was not justified "at least to the extent that it served to discourage the plaintiff from using this particular

lift at this time". There was a finding to the effect that it would have been safer for the plaintiff to go up

and down using the lifts rather than the stairs; the appellant does not contest that view.

The judge found for the plaintiff in negligence and also for a breach of statutory duty, holding

that the defendant was in breach of s. 9 of the Workplace Health and Safety Act 1989 (which has

been repealed by s. 206 of the Workplace Health and Safety Act 1995). In argument before us

counsel concentrated on the breach of statutory duty case and the appeal can be disposed of without

considering the judge’s conclusions under the general law.

Section 9 of the Workplace Health and Safety Act 1989 read in part as follows: "9.(1) An employer who fails to ensure the health and safety at work of all the employer’s employees, except where it is not practicable for the employer to do so, commits an offence against this Act".

Section 9(2) gives what might be described as examples of the way in which the offence might be

committed, but there is no need to discuss them. The word "practicable" is defined, in a way which

extends its meaning somewhat, in s. 6(1):

" ‘practicable’, means practicable having regard to -

(a)	the nature of the employment or, as the case may be, the particular aspect of the employment concerned; and
(b)	the severity of any potential injury or harm to health or safety that may be involved, and the degree of risk that exists in relation to such potential injury or harm; and
(c)	the state of knowledge about the injury or harm to health or safety that may be involved, about the risk of that injury or harm to health or safety happening and about any ways of preventing, removing or mitigating that injury, harm or risk; and
(d)	the availability and suitability of ways to prevent, remove or mitigate that injury or harm to health or safety or risk; and
(e)	whether the cost of preventing, removing or mitigating that injury or harm to health or safety or that risk is prohibitive in the circumstances;"

It was not disputed by counsel for the defendant, before us, that the plaintiff had, as an

employee, a right of civil action for breach of s. 9(1). Further, counsel accepted that the onus of

establishing the existence of the exception mentioned in s. 9(1) is on the employer; that accords with

a decision of this Court in Rogers v. Brambles Australia Ltd [1998] 1 Qd.R. 212.

It will be noted that consideration of whether a particular measure is "practicable" necessitated
the Court’s thinking about the degree of risk in relation to potential injury or harm, the employer’s state

of knowledge on various subjects, and the question of cost, among other matters. The case is one in

which, because of the breadth and variety of the considerations made relevant by the statute in

considering the question of practicability, the defendant might have been thought to have had good

prospects on that issue; but the primary judge has, for reasons which need not be set out here, decided

the issue against the defendant and that is not now challenged. The sole argument advanced with

respect to the case based on breach of statutory duty is that, so counsel for the defendant said before

us, s. 9(1) should be read as if it applied only to measures necessary to avert reasonably foreseeable

harm to an employee. If accepted, that argument would require s. 9(1) to read as if it included the

words underlined:

"An employer who fails to ensure the health and safety at work of all the employer’s employees, except where it is not practicable for the employer to do so, and except where harm to the employee is not reasonably foreseeable, commits an offence against this Act".

Considering the matter without reference to authority, this argument does not seem to be

compelling. If one simply reads the word "ensure" as meaning "make sure of", it does not appear that

any absurdity would follow; the result would be that the causing of any injury to an employee at work

which could by some means have been prevented by the employer constitutes an offence unless the

circumstances were such that it was not "practicable", in the defined sense, for the employer to take the

preventive step in question. A Court might hold that the suggested remedy was not "practicable"

because, for example, the risk of injury was low, the possible ways of preventing it not very suitable,

and the cost of implementing them too high. In such a case as the present, for example, the conclusion

might be that the employer was not in breach because of the low risk to persons such as the plaintiff associated with use of the stairs, and because of overcrowding of lifts which might have ensued if the

cleaners routinely used the lifts. But, as we have mentioned, the judge held and it is now common

ground that the requirement of practicability was satisfied.

Counsel for the appellant did not dispute that it would be safer for the plaintiff to use the lift

rather than the stairs, nor did he say that a fall on the stairs was not foreseeable; he submitted that such

a fall was not sufficiently foreseeable to satisfy the requirement which, he contended, should be read into

the statute. We find it unnecessary to consider to what extent a fall was foreseeable, for we are of the

view that the provisions of s. 9(1) should not be read as if foreseeability was a requirement. The sorts

of considerations a court would have regard to in dealing with an issue of foreseeability are, to some

extent, made relevant by the definition of the word "practicable"; we refer in particular to paras. (b) and

(c) of the definition.

To this point we have considered the matter without reference to authority. What might be

called the literal construction of s. 9(1) is supported by the view of Matthews P. as to the meaning of

s. 20(a) of the Construction Safety Act 1971, which required a contractor to "ensure that the

provisions of this Act are complied with or, as the case may be, are not contravened on the site". The

judge in Electrical Power Transmission Pty Ltd v. Robinson [1974] 2 Q.L. 329, expressed the view

that in the context the word "ensure" meant "make certain" or "make sure". Then there is a series of

decisions on s. 15 of the Occupational Health and Safety Act 1983 (N.S.W.) which required by

subs. 1 that:

"Every employer shall ensure the health, safety and welfare at work of all his
employees."

As here, there was a statutory defence of impracticability; s. 53 enabled the employer to escape liability

if it was "not reasonably practicable" to comply with the Act. It was consistently held that the word

"ensure" was to be construed in a way which accords with the view which we have expressed above:

Shannon v. Comalco Aluminium Ltd (1986) 19 I.R. 358 at 359, Gardner Bros. Pty Ltd v. McAuliffe

(1986) 15 I.R. 477, State Rail Authority of New South Wales v. Dawson (1990) 37 I.R. 110. In

Dawson’s case the Industrial Commission of New South Wales expressed the view that under the New

South Wales section there was an:

". . . absolute duty cast upon an employer to ensure (in the sense of guaranteeing, securing or making certain) an employee’s health, safety and welfare at work; and that is subject only to the statutory defences available under s. 53 . . .".

In summary, we are of the view that, contrary to the argument for the appellant, the word

"ensure" in the Workplace Health and Safety Act 1989 s. 9(1) meant "make certain" or "make sure".

And the section did not impose, expressly or implicitly, any test of reasonable foreseeability. Since the

appellant’s argument depended on that issue of construction being decided in its favour, the appeal on

liability must fail.

As we have mentioned, it is common ground that, because of a slip with respect to damages

under the principle of Fox v. Wood (1981) 148 C.L.R. 438, the damages must be reduced from the

sum assessed to $19,379.79. The only question raised on behalf of the appellant with respect to costs

was that, so it was said, the plaintiff should be allowed costs only on the Magistrates Court scale,

because the amount ultimately recovered does not exceed $20,000: see r. 363A(3) of the District

Courts Rules. In our opinion the case was one in which, in all the circumstances, it was a proper course to pursue the claim in the District Court and the plaintiff’s costs should not be limited in the way

suggested.

The orders are:

1.          Appeal allowed to the extent of reducing the judgment in favour of the plaintiff respondent to

$19,379.79.

2.          The appeal is otherwise dismissed.

3.          The appellant is to pay the respondent’s costs, here and below.