Hills Industries Ltd v Hulett

[1996] QCA 371

IN THE COURT OF APPEAL	[1996] QCA 371
SUPREME COURT OF QUEENSLAND

Appeal No 1690 of 1996

Brisbane
[Hills Industries v. Hulett]

BETWEEN:

HILLS INDUSTRIES LIMITED

(Defendant) Appellant

AND:

SHARYN HULETT

(Plaintiff) Respondent

Fitzgerald P Mackenzie J Cullinane J

Judgment delivered 08/10/1996

Joint reasons for judgment of Fitzgerald P and Mackenzie J; separate concurring reasons of Cullinane J.

APPEAL DISMISSED WITH COSTS TO BE TAXED

CATCHWORDS:	PERSONAL INJURY - liability - whether the respondent (employee) was injured by the appellant's negligence and/or breach of statutory duty - whether an appropriate system of work in place - whether an investigation in response to the respondent's complaint should have been conducted - whether the respondent's personal injuries causally related to the appellant's breach.
Counsel:	Mr B.L.P. Hoare for the appellant Mr S.C. Williams Q.C. and with him Mr P.B. de Plater for the respondent
Solicitors:	Bradley & Co for the appellant Watling Roache for the respondent
Hearing Date:	30 September 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 1690 of 1996
Brisbane
Before	Fitzgerald P. Mackenzie J. Cullinane J.

[Hills Industries v. Hulett]

BETWEEN:

HILLS INDUSTRIES LIMITED

(Defendant) Appellant

AND:

SHARYN HULETT

(Plaintiff) Respondent

JOINT REASONS FOR JUDGMENT - FITZGERALD P. AND MACKENZIE J.

Judgment delivered 08/10/1996

The circumstances giving rise to this appeal are set out in the reasons for judgment of Cullinane J. Briefly stated, the appellant asserted that the trial judge erred in concluding that the respondent was injured by the appellant’s negligence and/or breach of statutory duty.

The amount awarded to the respondent was not large, and she did not suggest that she had established any serious injury. It was found that the repetitious, unskilled work which she performed for the appellant had produced symptoms which had persisted from January 1994, when she ceased her employment, to January 1996, when the action was tried, and would continue for a further, limited period. It was an important part of the respondent’s case that the appellant’s records demonstrated that, throughout much of her employment, she had notified the appellant’s first aid officer of the symptoms she was experiencing and her problems were recorded; although in her discussions with the first aid officer she did not attribute her symptoms to what the trial judge found was their cause, the respondent submitted that the appellant breached its duty to her by not investigating her reported symptoms and changing the activities which she was required to perform, as was feasible, thereby eliminating the cause of her injury.

Although the respondent’s case was not strong, there was sufficient evidence for the trial judge to find, as he did, that the respondent was injured by the performance of her duties in accordance with the requirements of the appellant, that the injury could have been avoided without expense or inconvenience to the appellant, and that the appellant was alerted to, and ought to have known of, the difficulties which the respondent was experiencing. There was also evidence which would have justified rejection of the respondent’s claim if it had been preferred by the trial judge, but there was no compelling reason for him to do so and there is no sufficient justification for interference with his decision by this Court.

We would dismiss the appeal, with costs to be taxed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 1690 of 1996

Brisbane

Before Fitzgerald P

Mackenzie J

Cullinane J

[Hills Industries v. Hulett]

BETWEEN:

HILLS INDUSTRIES LIMITED

(Defendant) Appellant

AND:

SHARYN HULETT

(Plaintiff) Respondent

REASONS FOR JUDGMENT - CULLINANE J

Judgment delivered: 08/10/1996

The respondent instituted proceedings against the appellant, her employer, claiming damages in respect of a soft tissue injury to her cervical spine producing symptoms in her neck and right shoulder which she alleged arose as a result of the appellant's negligence or breach of statutory duty.

The respondent was employed by the appellant between March 1993 and January 1994 and in the course of her employment as a process worker she was required to perform certain tasks associated with the manufacture of metal ladders of various dimensions.

She complained about a number of the tasks associated with the operation of a five-hole press but the learned trial judge was not prepared to find that certain of the tasks of which she complained were causally related to her complaint which he accepted as being genuine. Part of the process involved lifting stiles individually from storage tables located adjacent to the press. The stiles varied in length and weight but the trial judge found that the weight of a 10 foot stile was approximately 1.45 kilos. The stiles varied in length from a few feet up to 16 feet. It was necessary for the respondent in order to feed the press to lift the stiles over uprights. The respondent is only 4 foot 9 inches in height and in the course of lifting the stiles it was necessary for them to be lifted to a height about the level of her nose from the floor surface and after that lower them to a position where they could be fed into the press. The respondent generally carried out this work over a 90 minute period, although sometimes it extended to three hours. The learned trial judge found that she was required to feed batches of up to 240 ladders into the press during a 90 minute session. Her roster usually involved three such sessions per day.

His Honour found that requiring the respondent to perform this work in the manner described exposed her to a foreseeable risk of injury and that as a consequence of this the respondent sustained a condition which had persisted until trial and would persist for some further period.

His Honour found that the respondent had established both a breach of duty at common law and also a breach of statutory duty, the latter being based upon provisions of the Workplace Health and Safety Act 1989 as amended. In reaching the conclusion that there had been a breach of statutory duty, his Honour considered the matter by reference to the provisions of a code of practice for manual handling approved pursuant to the provisions of the Act. The Code is admissible in evidence in proceedings in which it is alleged that a person with a duty of care has contravened or failed to comply with a provision of the Act. It goes on to provide:

"A Court may hold that a failure to comply with an approved code of practice constitutes proof of a breach of the duty of care unless the Court is satisfied that the person adopted standards of care which were at least equivalent to those described in this code of practice."

There was evidence which his Honour accepted that in late August 1993 the respondent was starting to develop the symptoms of the condition which she claimed have persisted to trial. There was evidence that on 30 August 1993 the respondent complained to the first aid officer of these problems having completed a period on the five hole press and that she had told the first aid officer this. (p.44 ll.15 to 20). The respondent did not specifically identify the problem as being associated with the press to a superior until December. However, his Honour found that she had complained of such problems on no less than 12 occasions between 30 August 1993 and 30 January 1994, which is shortly prior to her ceasing work. These were recorded in the appellant's first aid book.

In summary the learned trial judge found that the appellant ought to have foreseen that the work of repetitive lifting of the stiles to the height which the plaintiff was required to lift them exposed her to a risk of injury and that a proper system of work would have identified this and remedied it. He went on to find that even if such a risk had not been foreseeable the complaints which the respondent made ought to have resulted in the appellant taking appropriate steps to identify the cause of the problem and to have remedied it.

There was no challenge to his findings that there were readily available measures which could have been taken to overcome any difficulty.

Nor was the appellant inclined to demur from his Honour's finding that it was at fault in failing to have in place a system which would have enabled complaints made by members of its work force to be properly investigated and the cause of the problems identified and rectified.

The complaint which the appellant makes is that his Honour was not justified in finding that had it had in place an appropriate system it would have identified the tasks already described as involving a risk of injury to the respondent or that had it carried out an investigation in response to the respondent's complaints it would have established that the repetitive lifting of the stiles was the cause of this.

In an associated issue the appellant contends that if a breach was established the learned trial judge was not justified in concluding that the condition of which the respondent complained at the time of trial (which was an ongoing one which had subsisted for some two years after the cessation of the lifting activity) was causally related to such breach. Initially on the appeal the appellant confined its argument to the latter complaint but in reply also contended for the former which also appears in its outline of argument.

As to the former there was evidence from a number of medical witnesses that the repetitive lifting of the stiles exposed the respondent to a risk of injury. This came from, amongst others, witnesses called by the defendant. At p. 65 Dr Byrne, an orthopaedic surgeon called by the defendant, was asked the following question and gave the following answer in reply to a question by counsel who appeared at the trial for the defendant:

"She would pick up a stile from a rack. She would have to lift it over the top of the poles that were forming the rack. This would take it up to about nose height. She would then take the stile and pass it through a machine. Just dealing firstly with this discrete action of picking up the stile and lifting it up to that height to about nose height and then dropping it down before passing it into the machine, what sort of injury could be sustained as a result of doing that? -- When one uses the shoulder to lift anything up, the shoulder blade acts as a fulcrum and the muscles around the shoulder blade tighten to enable a stable support for the arms to move upwards. So one could possibly predict strains of the muscles around the shoulder blade, perhaps strains of the large muscle that connects the base of the spine to the top of the shoulder blade. Possibly - although I noted that was not very heavy - possibly with heavier things, one could perhaps damage the rotator cuff, which is a tendon in the shoulder which performs this sideways manoeuvre away from the body."

Dr Toakley a neurosurgeon who was called by the defendant gave the following evidence at p.117:

"She would lift the stile from a rack up to a point of about nose height where she would then feed the stile into a machine described as a five- hole press.

HIS HONOUR:  Which was lower.

MR HOARE: Which was lower, yes.

HIS HONOUR:  She had to lift it up to get it over a rail? -- Yes

And then when it is lower feed it into the machine?-- Slide it in.

MR HOARE: The stiles would have weighed something of the order of one and a half kilograms, maybe a bit more or less?-- Yes.

Assuming that task was undertaken on a number of occasions up to 200 in about a 90 minute space, what, if any, injury could be sustained as a result of so doing?-- I would have thought that she would have some shoulder and biceps strain as a result of that."

Dr Pentis an orthopaedic surgeon called by the respondent and Dr Harding a medical practitioner with some specialist qualifications in the musculo-skeletal area gave similar evidence. The evidence of Dr Pentis on the subject appears at p. 126 ll. 35 to 60 and Dr Harding's evidence on the subject appears at p. 137 ll. 8 to 15. It should be noted that much of the medical evidence, including that which appears in the medical reports was directed to the tasks generally which the respondent performed at the press and was not specifically related to the task in respect of which the learned trial judge made an adverse finding against the appellant.

The evidence in the above passages was however directed specifically to this task and some of it as will be seen is concerned with the particular problems which a person of the plaintiff's stature might be expected to encounter when performing such a repetitive task over such periods.

The appellant owed a duty to the respondent as an individual which obliged it to take into account the respondent's small stature. There was in my view ample evidence to support the finding that had the appellant properly investigated the tasks which it required the plaintiff to undertake it would have identified a risk of injury to the respondent. His Honour also found and was in my view justified in doing so that had it investigated complaints made by the respondent it would have identified the cause.

As to the appellant's claim that there was no evidence which would have justified the conclusion that the ongoing condition was causally related to the task of lifting the stiles in the way described, it is true to say that some of the medical witnesses expressed the view that any difficulties the respondent encountered with the repetitive lifting of the stiles would have been short lived and would have resolved with rest.

However, Dr Harding (to whom Dr Quaille an orthopaedic surgeon referred the respondent) having expressed the opinion referred to above said at pp. 139 and 140:

"MR de PLATER: Doctor, with repetition of the activity, is there a cumulative effect?-- The cumulative - yes, yes, I think there is in that - it's possible, in that what happens in these circumstances is, as I think has happened with Mrs Hulett - she's developed what we call a regional pain syndrome so that the region that now she is complaining about is extending from her head. She is complaining of headache, neck pain, shoulder-girdle pain, arm pain down as far as her extensive mechanism of her elbow and that's possible - that's the cumulative effect, in my mind, in that if one has an injury to one particular muscle, because it is so dependent, it is a connection point between two major parts of the body, then it's very common for people to develop these regional pain syndromes if they don't rest from the activity that's causing the injury.

Yes, thank you.

HIS HONOUR: What if they do rest:-- Sometimes the rest doesn't get rid of the pain and, in fact, in Mrs Hulett's case there's been numerous treatments applied to her and not. It's a very complex problem regional pain syndrome so it's a very complex problem. The premise we work on is that we know certainly that not resting is most likely to exacerbate it so it doesn't always work that if you rest it, it goes away, but rest is a good place to start with."

He went on to say at p. 143 in cross examination:

"MR HOARE: Doctor, in your conclusion you express the view that she's suffering from a 10 per cent neck function at this stage. You go on to say that you feel that this situation will persist for, perhaps, one to two years?-- That's correct.

Do you think that there will eventually be a gradual resolution of symptoms here?-- Yes, I'm sure there will be a resolution, to what extent I'm not sure. What I'm saying is I don't necessarily think there will be 100 per cent resolution, but it - it's very possible that it will be less than ten per cent."

In his reasons the learned trial judge accepted the evidence of Dr Harding that the condition would continue for another year or two.

The evidence of Dr Pentis at p. 127 ll. 40 to 50 also provides some support in my view for the finding that the respondent's ongoing symptoms resulted from the repetitive lifting of the stiles which she was required to carry out.

It follows in my view that there was evidence supporting his Honour's finding that the respondent's present condition is a consequence of the breach of the duty of care and breach of statutory duty of care which his Honour had found.

The appeal should be dismissed with costs.