Heath v AUSSIETRANS Pty Ltd
[2000] WASCA 12
•4 FEBRUARY 2000
HEATH -v- AUSSIETRANS PTY LTD [2000] WASCA 12
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 12 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:64/1999 | 2 DECEMBER 1999 | |
| Coram: | PIDGEON J MURRAY J OWEN J | 4/02/00 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | BRIAN ALLAN HEATH AUSSIETRANS PTY LTD |
Catchwords: | Negligence Injury to back of worker while loading a truck Attempted to lift heavy weight Whether breach of duty of care established Turns on own facts |
Legislation: | Nil |
Case References: | Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619 Turner v The State of South Australia (1982) 56 ALJR 839 Fennell v Supervision & Engineering Services Holdings Pty Ltd [1988] SASR 6 Klarich v Altec Engineering Services Pty Ltd, unreported; FCt SCt of WA; Library No 5547; 9 October 1984 Thomas v O'Shea (1989) Aust Torts Reports 80-251 Dunn v Unwin [1963] ALR 280 Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088 Atlas Tiles Ltd v Briers (1978) 52 ALJR 707 Wright v Albany Shire Council (1993) Aust Torts Reports 62,472 Bowen v Tutte (1990) Aust Torts Reports 81-043 Jonjen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192 SGIO v Oakley (1990) Aust Torts Reports 81-003 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HEATH -v- AUSSIETRANS PTY LTD [2000] WASCA 12 CORAM : PIDGEON J
- MURRAY J
OWEN J
- Appellant
AND
AUSSIETRANS PTY LTD
Respondent
Catchwords:
Negligence - Injury to back of worker while loading a truck - Attempted to lift heavy weight - Whether breach of duty of care established - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr J G Hanly
Respondent : Mr T Lampropoulos
Solicitors:
Appellant : Hotchkin Hanly
Respondent : Downings Legal
Case(s) referred to in judgment(s):
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619
Turner v The State of South Australia (1982) 56 ALJR 839
Fennell v Supervision & Engineering Services Holdings Pty Ltd [1988] SASR 6
Klarich v Altec Engineering Services Pty Ltd, unreported; FCt SCt of WA; Library No 5547; 9 October 1984
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Dunn v Unwin [1963] ALR 280
Lend Lease Employer Systems Ltd v Lydon, unreported; FCt SCt of WA; Library No 980088
Atlas Tiles Ltd v Briers (1978) 52 ALJR 707
Wright v Albany Shire Council (1993) Aust Torts Reports 62,472
Bowen v Tutte (1990) Aust Torts Reports 81-043
Jonjen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
SGIO v Oakley (1990) Aust Torts Reports 81-003
(Page 3)
1 PIDGEON J: I agree with the reasons to be published by Murray J. For these reasons I would dismiss the appeal.
2 MURRAY J: The appellant was aged 36 years when, on 30 September 1994, he suffered an injury to his back as the result of an accident which occurred at his place of work, a transport depot comprised of a warehouse and yard operated by the respondent who was the appellant's employer. He sued in the District Court for damages for negligence. The action was defended. It was tried by his Honour H H Jackson J over a period of four days in December 1998. On 27 April 1999 his Honour dismissed the plaintiff's claim with costs.
3 The appeal to this Court, so far as it is necessary to refer to the grounds of appeal in respect of the issue as to the respondent's liability in negligence, is grounded upon the assertion that, in the circumstances as found by his Honour, he should have concluded that the respondent's negligence was established. In addition there are specific challenges to his Honour's findings of fact in relation to the availability and use of a forklift and the availability and use of what was described in a ground of appeal as "wooden battens".
4 The case does indeed turn on the facts. No error of law is asserted and there is little need to refer to matters of law. It is sufficient to refer to the decision of the Full Court in the case of Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989. That was a case, as is this, concerned with an injury suffered by a worker when attempting unaided to lift a heavy object, a wheel of a backhoe upon which mechanical repairs were being performed. Ipp J, with whom Malcolm CJ and Wallace J agreed, discussed relevant authorities, particularly earlier decisions of the High Court, including a number upon which the appellant relies in this case. I need not refer to them. At 8 of his reasons his Honour said:
"From these cases, the following can be extracted:
(a) A safe system of moving heavy objects will usually require the employer to give a warning or instructions that no employee should attempt to life excessively heavy objects alone.
(b) Further, a safe system will usually involve both instructing employees to seek help in order to move excessively heavy objects and instructing fellow employees to provide that help when asked.
(Page 4)
- (c) The employer's duty is to take reasonable care to avoid exposing an employee to unnecessary risk from moving heavy objects, including the risk that injury may occur because of the failure of an employee to appreciate, through inadvertence, failure to apply his mind, an error of judgment or negligence, that an object is too heavy to be moved by him alone.
(d) An employer does not avoid the duty imposed upon him by leaving it to the employee to work out a safe system himself; that would be an impermissible attempt by the employer to shift his duty onto the employee."
5 In this case at trial the appellant himself gave evidence but his Honour, for reasons which he expressed, concluded that the appellant's credibility as a witness was devalued and it was difficult to rely upon the accuracy of his evidence where there was a conflict with other witnesses. He took the same view of a fellow employee called by the appellant, a Mr McMahon, but relative to this appeal, little turns on that because McMahon's evidence was of the usual practice and he said that he had left work on the afternoon in question before it appeared that the appellant suffered his injury.
6 For the respondent, a principal of the company, a Mr Buck, was called. He was said by the appellant to have been the other person present and working with him when the accident occurred. Mr Buck had no recollection that that was the case. He said that he first learned of the accident by telephone advice. His Honour found Mr Buck to be an entirely acceptable witness upon whose evidence he was prepared to rely. He thought that had Mr Buck been the other person present and had the injury then occurred in the circumstances described by the appellant, Mr Buck would have recalled it. He was not satisfied that Mr Buck was there. So Mr Buck's evidence also was of the general practice with respect to the lifting of heavy objects within the respondent company. Nonetheless, as his Honour's findings of fact make clear, he did accept the appellant's evidence as to how the accident occurred and that there was another person present at the time.
7 I have mentioned that the respondent conducts a road transport business. The appellant was employed as a truck driver but he also had duties at the respondent's depot as a storeman and in relation to the loading of trucks, including those brought to the premises by other drivers. He had been engaged in work of that type since 1986. Before he
(Page 5)
- commenced work with the respondent, he had been employed by another transport company which, one would gather from the appellant's evidence, was a much more substantial concern. That business was taken over by the respondent in June 1994. The appellant commenced then to work for the respondent. His evidence was that he had received from the earlier employer instruction as to the correct way to lift heavy objects, not to attempt to lift unaided objects which were judged to be too heavy, and as to the equipment which might be used to assist with such lifts. His evidence showed that he was used to seeking and obtaining help from other employees. It was not clear on the evidence that instructions of that kind were reinforced by the respondent before 30 September 1994.
8 It also appears that the equipment available was reduced by the respondent. It used two forklift trucks and the warehouse was fitted with a large gantry crane which might be used to lift really heavy weights up to three tonnes. It does not appear to have been suggested that the crane should have been used to lift the object in question in this case, a cog wheel lying on a wooden pallet, the total weight of which was 80 kgs. The object had been weighed by the appellant himself before the lift was undertaken. It was lifted from the ground by a forklift driven by some person who may have been but, as his Honour concluded, was unlikely to have been, Mr Buck. It appears that previously such forklifts could be fitted with objects called "slippers" which I understand to be metal shoes which could be positioned over the tynes of the forklift to extend their length. It is not clear to me that the respondent used such objects.
9 The appellant's task on the afternoon in question was to build a load on a trailer which would later be towed away by a prime mover. He was experienced in carrying out such work. It was a task he had performed many times before. It involved weighing the objects to be placed on the trailer so that the permissible load limits could be observed, as well as for the purpose of ensuring that the load was properly balanced; hence the weighing of the cog wheel and pallet.
10 The task was to be performed with the assistance of a forklift and its driver. The evidence of Mr Buck, which his Honour accepted, was that regardless of the relative seniority of workers, the accepted system was that the employee having the responsibility to build the load and who therefore saw to the positioning of its constituent elements on the tray of the trailer was the person in charge of the operation and the forklift driver followed his instructions.
(Page 6)
11 On the occasion in question the work had commenced by loading bundles of pipes on the left and right sides of the tray in a secure position to a height of about four feet above the tray on each side. The next step was to fill the gap in the centre with objects which would bring the load to a uniform height. Loose pipes were placed there and the appellant turned his attention to the cog wheel on the pallet.
12 It will be recalled that he had established that its weight was 80 kgs. It was about two feet high and about four feet square. Its dimensions were apparently such that it would fit conveniently into the centre of the tray resting upon the loose pipes, and that would result in an approximately uniform height for this part of the load. The pallet and cog wheel were lifted on the tynes of the forklift which then came forward to extend the tynes over the load. The tynes were not of sufficient length that the load could be simply dropped in place as they were removed even when, as occurred, the forklift reversed, re-positioned the tynes under the pallet so that the extremity of the tynes extended about halfway under the pallet and lifted the pallet, moving the forklift forward, effectively to re-position the pallet approximately a further two feet in board.
13 It was therefore necessary to lift or slide the pallet and its load off the end of the tynes and into the desired position in the centre of the tray. The appellant attempted this exercise by lifting the pallet unaided. He said he was not concerned with the weight and, remarkably, he did manage to lift the pallet and took the full 80 kg load himself. The difficulty was that from the position where he stood the appellant, while holding the pallet and cog wheel, had to turn some 90º to his left before lowering the load into the desired position. As the appellant attempted that manoeuvre he suffered the back injury for which he sued.
14 It was clear from the appellant's evidence that to the extent that the lifting and positioning of the load could not be achieved solely by the forklift, the appellant knew that he could obtain the assistance of any other employee, including the driver of the forklift, because that equipment could be locked in position while still bearing the load and the driver could climb onto the trailer to assist with the lift. It was clear that had that been done the danger of injury to either man would have been dramatically reduced and effectively obviated.
15 The appellant's evidence was that, although he thought he could undertake the lift by himself, had assistance been available from the forklift driver he would have sought it to make the task easier. The appellant's evidence generally was that he would have expected to receive
(Page 7)
- such assistance. But on this occasion he did not ask the driver, whom he thought was Mr Buck, because he understood that Mr Buck had pulled a muscle in his back. When he gave evidence Mr Buck denied that was the case and that evidence was accepted by his Honour. The position was therefore that for no apparently good reason the appellant simply declined to seek available assistance which would have obviated the need to lift the load alone and attempt the turning manoeuvre which caused him to come to grief.
16 Mr McMahon gave evidence of his employment by both the respondent and its predecessor. His evidence effectively confirmed that of the appellant that both men had received instructions about lifting and seeking help and use of equipment from the previous employer. So during his employment by the respondent he said the position was that:
"… common sense prevails I think. If it's too heavy to lift you don't lift it … You use a forklift or another person to give you a hand. Sometimes you might in the heat of the moment move it because it has only got to be moved two or three inches".
- McMahon made it clear that he did not expect to be given instructions about lifting by the respondent and he clearly took the view that he would not try to lift an 80 kg weight alone.
17 When Mr Buck was cross-examined at some length, the following exchange occurred:
"Would you say it would be a safe practice to lift an 80 kilo cog like this?---Definitely not, not by yourself and certainly not trying to lift a pallet, which is 4 foot square, with an item like that strapped to it. Definitely not.
If you had a situation where you couldn't manoeuvre the fork into a position to lower the cog down, how would you deal with it?---I would put the pallet in a different position. I mean, there are 100 different ways that that problem can be overcome. For a start, I know some of the evidence is that there was a steel rod on either side and this thing had to be put in the middle. It's a simple matter of placing a timber bearer - we had ample stocks of timber bearers in the place - across the trailer and placing the pallet on top of two timber bearers.
So that it wasn't necessary to lift it?---That's correct.
(Page 8)
- So that the fork could lower it onto the timber bearers?---That's correct.
If you were driving the forklift in a situation like that would you suggest that timber bearers be used?---I would suggest that if I was driving the forklift in a situation like that and there was an experienced man of 35 years of age on top who had been loading trucks for a number of years, that he would direct me as to how that pallet was to be lowered."
18 These are the "battens" to which the ground of appeal refers. Counsel argues that this material should not have been relied upon, as it was by the learned trial Judge, because it was not put to the appellant or his witness and indeed it was not evidence elicited from Buck in chief, but was given by way of fair answers to questions put in cross-examination. No doubt an application could have been made to re-open the appellant's case and recall him but it appears that no such course was taken. In my opinion, there was no impediment to Jackson J relying upon this evidence of a readily available procedure which would have obviated the need to lift the object at all but would have allowed it to be slid into its final position.
19 In those circumstances, in my view, it cannot be said that the learned trial Judge erred in declining to draw the inference that a breach of the duty of care owed by the respondent to the appellant had been established. The appellant was an experienced worker. The task being undertaken was of a usual kind. He was in charge of the process and could direct the fellow worker how it was to be performed. He had the use of the forklift and the availability of bearers. He knew that if it was necessary he could seek and would obtain the assistance of the fellow worker who was the forklift driver. The 80 kg load was obviously too heavy to be lifted alone and the object on the pallet was of an awkward size. The lifting process he attempted and the twisting it involved was itself awkward and dangerous, contrary to the instructions he had been given by his previous employer about the correct way to lift heavy objects so as to minimise the risk of back injury.
20 This was not a case where further steps were required by the respondent to guard against an injury of this kind received as a result of the inadvertence or error of judgment of the worker. Nor was it the case that the respondent simply relied upon the common sense of the appellant and took no action itself to discharge its duty of care. This was simply a case where there was in place a safe system of work which could have
(Page 9)
- accommodated the task in question without appreciable risk of injury to the appellant. His injuries were received simply because he failed to follow that system.
21 In my opinion, for those reasons, the appeal should be dismissed. It follows that it is unnecessary in my view to deal with the appellant's complaints about the provisional assessment of damages which his Honour the trial Judge nonetheless undertook and I propose to say nothing about the issues raised in that regard.
22 OWEN J: I have read the reasons to be published by Murray J. I agree with them and his Honour's conclusions. I have nothing further to add.
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