Jamie Leigh White v Logen Pty Ltd as trustee for the Byrn Family Trust

[2014] NSWCA 159

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Jamie Leigh White v Logen Pty Ltd as trustee for the Byrn Family Trust [2014] NSWCA 159

Hearing dates:

31 March 2014

Decision date:

22 May 2014

Before:

Macfarlan JA at [1]; Ward JA at [2]; Sackville AJA at [80]

Decision:

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

EVIDENCE - witnesses - whether primary judge erred in giving little or no weight to expert evidence on the basis that the scientific or intellectual basis for the expert's conclusions was not established and/or the opinion was equivocal

TORTS - negligence - proof of negligence - sufficiency of evidence - whether primary judge erred in failing to make findings as to system of work devised by the employer and whether it was a safe system of work - whether appellant's evidence and/or materials annexed to expert's report established failure of employer to devise and implement safe system of work

Legislation Cited:

Civil Procedure Act 2005
Occupational Health and Safety Regulation 2001
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987

Cases Cited:

Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Category:

Principal judgment

Parties:

Jamie Leigh White (Appellant)
Logen Pty Ltd (Respondent)

Representation:

Counsel:
T Molomby SC with Ms L Goodchild (Appellant)
P Morris SC with J Catsanos (Respondent)
Solicitors:
Brydens Compensation Lawyers (Appellant)
Moray & Agnew (Respondent)

File Number(s):

CA 2013/75232

Publication restriction:

Nil

 Decision under appeal 

Date of Decision:

2013-02-12 00:00:00

Before:

Balla DCJ

File Number(s):

2012/75970

Judgment

1. MACFARLAN JA: I agree with Ward JA.

1. WARD JA: Mr White suffered a back injury while working as a spray painter employed by Logen Pty Ltd. He brought proceedings in the District Court against Logen, claiming damages in negligence. He alleged that the nature and conditions of his employment, which involved him in heavy and repetitive lifting and handling of heavy equipment including buffers, polishers and spray guns, caused him injury, disability, loss and damage during the period between 13 December 2004 and 18 July 2006.

1. The particulars of negligence provided in Mr White's Statement of Claim included:

(i)   failure to take adequate precautions for Mr White's safety; exposing him to a risk of injury in the circumstances; failure to provide a proper and safe system of work; and failure adequately to train him in proper and safe manual handling techniques (particulars (a)-(d));

(ii) the requirement that Mr White work in jobs and tasks where proper and safe manual handling techniques could not be implemented; and the requirement to work in particular ways, including the repetitive use of a heavy buffing machine often held at "significant horizontal distances" away from his body and the use of machines requiring repetitive bending, twisting and lifting (particulars (e)-(j));

(iii)   failure to provide Mr White with proper and adequate assistance and with particular equipment and failure to carry out any or any adequate risk assessment in relation to the tasks that he was required to perform (particulars (k)-(p)); and

(iv)   failure to heed Mr White's complaints of back pain which commenced in about 2003 [a date prior to the commencement of his employment by Logen] (particular (q)).

1. Logen denied liability, pleaded contributory negligence, and contended that Mr White's claim was statute barred.

1. The primary judge found that Logen was not negligent and dismissed the proceedings. Mr White appeals from that decision.

Background

1. Mr White worked as a spray painter over the period from 1995 to 2006. He was first employed as an apprentice spray painter in a business trading under the name Wallaby Spray Painting. In December 2004, that business was taken over by Logen. From that time, Mr White was employed by Logen, the principal of which was Mr Byrn. Mr White's claim relates to the nature and conditions of his employment for the whole of the period in which he performed work for Logen.

1. The primary judge summarised Mr White's evidence as to his work duties as a spray painter. No issue is taken with that summary.

1. Relevantly, when applying and buffing polish on vehicle bonnets and roofs, Mr White engaged in repetitive bending and twisting movements, alternately picking up and putting down the brush used to apply the polish and lifting up an orbital industrial buffing machine over the area where he had applied the polish. He did this, when polishing, every two minutes. He would reach out horizontally at full arms' stretch to the centre of the vehicle to guide the buffing machine back towards his body. When leaning forward to the middle of the bonnet he said he could not touch the parallel guard and estimated that he was reaching a metre away from his body. The largest sized vehicle he worked on was "an ambulance sized car".

1. When operating the buffing machine, Mr White used a two-handed motion. He applied a little pressure to guide the machine across the polished surface. The machine's weight was partly, but not wholly, supported by the vehicle being polished. Mr White performed buffing activities, depending on his work load, usually for an hour or two at a time. On occasion, he would spend half a day (four or five hours) using the buffing machine. Mr White's duties also included lifting heavy tins of paint thinners and heavy vehicle panels.

1. Mr White was already suffering from constant pain in his leg, hip and groin area when his employment with Logen commenced in December 2004. The primary medical records in evidence recorded that Mr White had first consulted his local doctor as to pain of that kind on 31 January 2003. On 18 July 2006, Mr White experienced a shooting pain down his back, leg and groin area while polishing a car bonnet using the buffing machine at full arms' length. He dropped the buffing machine and was unable to stand up. It is relevant to note that the incident did not occur while Mr White was bending and twisting to pick up the buffing machine nor while he was engaged in vertically lifting the buffing machine or any other heavy item.

1. One of the orthopaedic surgeons who provided expert medical reports in Mr White's case, Dr Clark, described this incident as an acute episode associated with a frank rupture of the disc with nerve root entrapment. He considered it was possible that the injury occurred by the prolapse of a disc through an existing annular tear.

1. Mr White underwent surgery in the form of a discectomy with unilateral spinal fusion on 12 September 2006. He was not able to return to his employment as a spray painter. He claimed and was paid workers' compensation benefits. In 2010, Mr White and Logen entered into a Complying Agreement dated 14 July 2010, pursuant to s 66A of the Workers Compensation Act 1987 (NSW), in which the parties agreed that Mr White had suffered whole person impairment of 21% as a result of the injury. The Complying Agreement recorded the date of the injury in the following terms:

Nature & Conditions of employment from 13/12/04 - 18/07/06.

Deemed date of injury 18/07/06.

1. At the time of the District Court hearing of his work injury damages claim, Mr White was in receipt of fortnightly compensation payments, having received weekly compensation payments for some time before that. Mr White's medical expenses were met by Logen's workers' compensation insurer.

District Court proceedings

1. Mr White tendered medical reports from various medical practitioners. Relevantly, for present purposes, he relied upon reports from two orthopaedic surgeons, Drs Giblin and Clark. He also tendered a report from an ergonomics and safety management consultant, Mr Adams. Logen tendered medical reports from two other orthopaedic surgeons (Drs Smith and Wilding) as well as a report from a specialist occupational physician (Dr Anderson) and a vocational assessment report from Mr Richardson. Mr White gave oral evidence as did Mr Byrn.

Medical evidence

1. Dr Giblin examined Mr White in August 2007. He noted a history of gradual onset of pain in the right groin and right leg during the course of 2002 and that there was no history of symptoms prior to 2002. Dr Giblin also noted that Mr White's family doctor had diagnosed sciatica and had issued Mr White with a "TENS" (transcutaneous electrical nerve stimulation) machine, presumably to manage that condition.

1. Dr Giblin was of the opinion that Mr White's loss of function and whole person impairment was 23% and was solely due to the nature and conditions of his work environment from 1 January 2002 up until July 2006. That opinion was expressed to be based on the lack of history of any symptoms prior to 2002.

1. Dr Clark examined Mr White in July 2009 for the purpose of a medico-legal report. He referred to a history of commencement of back pains at work "possibly" towards the end of 2002 and noted that Mr White had consulted his local doctor with "progressive pain" in February 2003. (In fact, the relevant doctor's notes place the first consultation on 31 January 2003, as noted above, but nothing turns on this.) Dr Clark's opinion was that Mr White "may have sustained" an annular tear at L5/S1, sometime towards the end of 2002 whilst at work. If so, this injury pre-dated Mr White's employment with Logen.

1. Dr Clark opined that Mr White had suffered a 25% whole person impairment, one-third of which was the result of his previous employment and two-thirds of which occurred during his employment with Logen. It is not clear how he arrived at that assessment. I can only assume that the assessment was effectively an apportionment based on the respective time (from first report of the back pain) in which Mr White worked for each of his previous employer and Logen.

1. Dr Wilding, who examined Mr White at the request of Logen, opined that Mr White had sustained a lumbar disc lesion at L5/S1. Dr Wilding said this was "as a consequence of the nature and conditions of his employment". However, Logen notes that neither Dr Wilding nor the occupational physician retained by Logen, Dr Anderson, had any history of Mr White's back problems prior to 2005.

1. Logen also tendered two reports from Dr Smith. Dr Smith examined Mr White on 21 May 2008 and 9 July 2009. His first report gave the opinion, based on the history given by Mr White, that Mr White had developed sciatica on the right over a gradual period from around 2004 onwards, without any accident or injury, and that this had become gradually worse. Dr Smith's opinion seems to have proceeded on the basis that there was no injury sustained at work on 18 July 2006, referring to that as the date on which Mr White had reported his condition. Dr Smith's second report noted that Mr White had a constitutional abnormality with his back, referring to genetic abnormalities with superimposed degenerative disease.

1. None of the medical experts was cross-examined. From the reports, it can be concluded that Mr White had a pre-existing diagnosis of sciatica before he commenced employment with Logen; that he was suffering from progressive pain prior to the commencement of his employment with Logen; that at least one specialist diagnosed genetic abnormality with degenerative disease in his back; and that the rupture of the disc in Mr White's back may have been associated with a pre-existing annular tear.

Ergonomics report

1. Mr White's case on breach of duty was substantially based on the report and evidence of an ergonomics and safety management consultant, Mr Adams. Mr Adams' report provided general information as to the main causal factors for injuries associated with cumulative trauma before considering the particular tasks Mr White was required to perform and the risk of injury associated therewith.

1. Mr Adams assumed that the buffing machine weighed approximately 10kg. His opinion was that while the task of lifting and/or holding a buffing machine of that weight "would not necessarily" exceed recommendations for lifting limits, the magnitude of the risk imposed by that task on Mr White would have been affected by three things: that the lifting was frequently to and from floor level; that the activity of lifting to and from floor level was undertaken with significant twisting and bending of Mr White's back; and that the manner in which Mr White operated the buffing machine well out in front of his body necessitated the exertion of the requisite lifting forces at significant distances horizontally from his feet, including distances of up to one metre.

1. Mr Adams identified the activity of bending and twisting, while lifting, as being well known to increase the risk of injury and said that the risk of injury is greater if a person is required to lift to or from below about mid thigh height. Mr Adams said that where the horizontal lifting distance exceeded 0.63m there was no weight at which lifts could be regarded as "appropriately safe". Mr Adams also said that the manner in which Mr White manipulated vehicle body parts involved factors that contributed to increased levels of risk (in particular, doing it regularly with arms fully extended) and that the task of lifting tins of thinners involved excessively high levels of risk.

1. In summary, Mr Adams considered that the manner in which Mr White had been required to perform the buffing and lifting activities involved in his employment was unsafe and carried an unacceptable risk of injury. Mr Adams referred to various safety management considerations before concluding that it should have been entirely foreseeable to Logen that Mr White might be exposed to very significant risks of sustaining and/or developing musculo-skeletal injury, and that his lower back was a likely locus of any such injury. Mr Adams placed some emphasis on the obligations of employers, under occupational health and safety legislation, to carry out a risk analysis in the workplace. I refer to this later.

1. When tendered, objection had been taken by Logen to certain parts of Mr Adams' report in which Mr Adams expressed a conclusion as to the cause of Mr White's injury. From a review of the transcript, it is apparent that part of the report to which objection was taken on this basis was ultimately read on the limited basis that it was a discussion of what "could" cause injury of the kind sustained by Mr White not what "had caused" injury in the present case. The particular passage so read was at Blue 52M-P. It was suggested that a later passage in the report could be treated in the same way (at Blue 57P-S - see Black 66R-67F). Ultimately, however, Mr White did not press, as an expert opinion, Mr Adams' conclusion that it was more probable than not that the injury to Mr White's lower back had developed as a function of the cumulative physical stresses to which he was exposed during the course of his repeated performance of work "that involved the exertion of significant lifting forces, often at significant distances horizontally from his body, and also quite regularly with bending, twisting, and/or very rapid movement". This had the consequence that Mr White failed to establish that his injury was caused by the cumulative effect of his work activities.

1. Mr Adams identified various preventative measures that he considered could have significantly reduced Mr White's exposure to the risks of musculo-skeletal injury, including the provision of a back harness and a trolley on which to place the buffing machine and polish as well as the heavy tins. He also expressed the opinion that had a formal risk analysis of the various manual handling tasks been undertaken by Logen, it would have identified the work described in section 3 of his report as likely to present a significant risk of injury.

Primary judgment

1. Her Honour identified six matters as being in issue: whether Logen was negligent; whether, if so, there was any contributory negligence on the part of Mr White; the effect of the 2010 Complying Agreement; whether the making of weekly payments and treatment expenses operated as an admission by Logen that Mr White had been incapacitated since 18 July 2006 as a result of an injury received in the course of employment; whether Mr White's claim was statute-barred pursuant to s 151D of the Workers Compensation Act; what method should be used to calculate the amount Mr White would be earning if he were still working as a spray painter and how to quantify his residual earning capacity. Her Honour did not find it necessary to determine a number of those issues, having regard to her findings on the first issue and to certain concessions made by Mr White's Counsel at the hearing.

1. As to the first issue, her Honour concluded that Mr Adams' opinion did not comply with the requirements set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85]. Her Honour accepted Logen's submission that Mr White had not established that the facts on which Mr Adams' opinion was based formed the proper foundation for his conclusions and because her Honour considered that his opinion did not demonstrate the scientific or other intellectual basis of his conclusions. Her Honour reached that conclusion having listed a number of matters that had emerged from Mr Adams' report and evidence in cross-examination. Her Honour noted that these included matters that were likely to have affected Mr Adams' opinion in respect of which he had no instructions (by which her Honour may well have been referring to matters such as the height of the vehicle, the height of Mr White, the length of Mr White's arms and the dimensions of the buffing machine); matters in respect of which Mr Adams had made assumptions which did not accord with the evidence (such as the weight of the buffing machine used by Mr White about which Mr Adams made no enquiries of his own facts); and matters in respect of which there was no detailed evidence (such as the precise manner and speed with which Mr White had performed certain movements).

1. Mr Adams conceded that he had made no assessment as to the load bearing involved in the buffing procedure and accepted that he was unable to estimate how much weight Mr White was bearing when using the buffing machine resting partially on the bonnet, without knowing the weight and the distances between the various components and had conducted no analysis as to this. As to the safety of lifting drums of thinners, Mr Adams conceded that the dimensions of the drums made an ergonomic difference and that he had not measured the drums nor obtained any information from Mr White as to the dimension of the drums.

1. Her Honour nevertheless accepted that there was one aspect of Mr Adams' opinion in relation to buffing that did not rely on the specific circumstances of the activities being undertaken by Mr White on 18 July 2006, namely Mr Adams' opinion (based on the National Standard and Code of Practice for Manual Handling guidelines) that someone standing at the side of a vehicle and reaching more than 0.63m to the centre of the bonnet would always have an unacceptable risk of injury. Her Honour was there referring, as I read Mr Adams' report, to the risk factor identified by Mr Adams at Blue 58L-N and his conclusion at Blue 60U. Her Honour did not reject Mr Adams' report outright.

1. Her Honour noted, however, that the cross-examination of Mr Adams revealed that he had incorrectly assumed that Mr White had reached across the full width of the bonnet for the buffing task. Her Honour considered that Mr Adams' response, in cross-examination, when this was made clear to him (namely, that he thought standing beside a car and operating a tool to the centre of the bonnet "would be close to" the unsafe lifting limit) was an equivocal opinion and of no weight. On that basis, her Honour did not accept Mr Adams' evidence in relation to the buffing procedure.

1. Her Honour found that Mr White had not proved that lifting objects in the course of his employment caused an injury that made a material contribution to the disc protrusion that occurred on 18 July 2006. Her Honour, having concluded for the reasons above that Mr Adams' opinion was of no weight, considered that there remained only the oral evidence of Mr White to support his allegation that there had been a breach of the duty of care owed by his employer. Her Honour was not satisfied that this evidence established any breach.

1. As to whether the Complying Agreement gave rise to an estoppel precluding Logen from denying that the nature and conditions of Mr White's employment with Logen had caused permanent impairment of his lumbar spine, her Honour noted that Senior Counsel for Mr White had conceded that there was no assertion that the estoppel extended to negligence on the part of Logen. On that basis, her Honour held that the Complying Agreement was of no assistance in establishing negligence. No appeal point is pressed in relation to that issue.

1. As to the payments made by Logen's workers' compensation insurer, her Honour noted that while Senior Counsel for Mr White had contended that these led to a rebuttable admission, it was one that was limited to Mr White's incapacity, not an admission as to the negligence of Logen. On that basis, her Honour found that the fact of these payments was also of no assistance in establishing that Logen was negligent. Again, no appeal point is pressed in relation to this issue.

1. Her Honour did not address the question of contributory negligence; nor the issues as to whether the proceedings were statute barred (an issue not pressed on this appeal) and as to the calculation of damages.

Appeal

1. Mr White appeals on the grounds that her Honour:

(1) failed in her reasons to disclose a logical or adequate reasoning process "in that they do not deal with important issues raised for determination by the parties";

(2) erred in rejecting the whole of the expert evidence of Mr Adams in circumstances where:

(a) Logen called no evidence of an expert nature;

(b) the assumptions underlining Mr Adams' report differed only in "immaterial respects" from the evidence given at trial by Mr White; and

(c) the annexures to Mr Adams' report, together with the lay evidence, were sufficient to establish that the system of work followed by Mr White was unsafe;

(3) made no adverse credit findings with respect to Mr White's evidence and erred in failing to find on the basis of that evidence that Logen had failed to devise and implement a safe system of work, "particularly with respect to lifting involved";

(4) erred in failing to refer to Mr White's evidence that he had made prior complaints about back pain to Logen;

(5) failed to make any findings as to what was the system of work devised by Logen and whether it was a safe system of work; and

(6) failed to determine whether the system of work imposed upon Mr White was unsafe.

1. Mr White seeks an order that the claim be remitted to the District Court for a re-trial on all issues, or alternatively a re-trial limited to the question of damages. It was not suggested that, if the appeal were successful, this Court would be in a position to determine the issues in relation to contributory negligence and calculation of damages.

1. For the reasons set out below, I consider that her Honour erred in not dealing separately with the allegation of breach of duty in relation to the provision of a safe system of work but that, in light of her Honour's implicit finding as to causation, even if there was a breach of duty as to the system of work Mr White failed to establish that this was causative of his injury on 18 July 2006 and therefore the appeal should be dismissed with costs.

Grounds 1 and 4 - reasoning process/prior complaints

1. Ground 1 of the notice of appeal unhelpfully fails to identify the "important issues" with which her Honour's reasoning process is said to have failed to deal. In the written submissions filed for Mr White, complaint was made in this regard only as to two matters. One of those is the subject of ground 4 of the notice of appeal and so I will deal with that ground at the same time as ground 1.

1. The first of the two issues identified in the written submissions as falling within this ground of appeal is the conflict between Mr White's evidence and that of Mr Byrn as to whether employees were instructed to obtain assistance to lift heavy objects and were not to attempt to lift them on their own, as Mr Byrn said.

1. In this regard, it was submitted that it was not put to Mr White in cross-examination that he had been instructed not to attempt heavy lifting on his own, simply that he would use commonsense when lifting. However, on a reasonable reading of the transcript, what was put to him was that there was a procedure or system that involved him seeking assistance at least in relation to the lifting of the heaviest of the items in question (the 60 litre drums of paint thinner) and to ask if he needed a hand with anything. Therefore, Logen is not precluded from relying on Mr Bryn's evidence as to the requisite procedure for lifting heavy items by reference to what was or was not put to Mr White as an "instruction" as such. Mr White appeared to accept that there was at least a "system" that he should ask for help if needed, though it is not clear whether he understood that only to apply if someone else was there or if his practice was not to follow that course if there was no-one else there.

1. Her Honour did not resolve this conflict of evidence in her reasons for judgment. Logen, however, submits that resolution of this particular factual dispute was not critical to the proper determination of Mr White's case, since her Honour found that there was no evidence linking any lifting activity to the injury suffered by Mr White. I agree. Unless a lifting activity was shown to be causative of the injury suffered by Mr White, the giving (or adequacy) of any instruction about lifting heavy items is irrelevant, as would also be the question of Mr White's compliance with any such instruction.

1. The second important issue identified in the written submissions as having been left unresolved is as to Mr White's evidence that he had made prior complaints about pain caused by his work. It is submitted that her Honour overlooked this evidence and that it was uncontested. At the outset, it should be noted that insofar as the particulars of negligence (at (q)) refer to complaints made prior to the commencement of Mr White's employment with Logen, those do not assist in establishing any breach of duty by Logen.

1. The significance attributed to the making of complaints after Mr White's employment by Logen commenced would presumably be said to be awareness on the part of Logen of potential work safety risks or issues inherent in the system of work in which Mr White was engaged and that, notwithstanding those complaints, the system of work did not change.

1. Mr White's evidence as to the making of complaints was in general terms. He said that he had told Mr Byrn a couple of times in 2005 that he was having back or leg pain and Mr Byrn said that it was sciatica; that he drew the pain in his groin to Mr Byrn's attention a couple of times (from which I understand Mr White to be referring to occasions other than those relating to the back or leg pain, though this is not wholly clear); and that he drew the pain in his leg, groin and hip to the attention of the foreman, Mr Christie. His evidence was somewhat inconsistent in that, in cross examination, Mr White said that it was Mr Christie, not Mr Byrn, who had told him he thought he had sciatica, though he said that this conversation was in Mr Byrn's presence, and he said that he had mainly told them (i.e., Mr Christie in Mr Byrn's presence) that he had pain in his hip.

1. Mr White said that a year or two before July 2006, Mr Christie had given him a belt to wrap around his hips and said that it might relieve the sciatica but that this did not help. Logen relies on this as evidence of an adequate response to a complaint consistent with Mr White's then diagnosis of sciatica.

1. A finding that Mr White had made the complaints that he said he did (according to him, these being mainly about hip pain), while relevant to a consideration as to whether Logen failed in its duty to provide a safe system of work, would not be determinative of Mr White's claim for work injury damages if the activities in which he was engaged in that system of work were not shown to be causative of his injury and hence nothing turns on the fact that her Honour made no reference to the complaints. That said, the absence of any reference to the prior complaints does highlight the lack of any express finding as to the safety or otherwise of the system of work, to which I refer later in these reasons.

1. The third issue to which it was said, albeit only in oral submissions, that ground 1 of the notice of appeal related was the finding that Mr White had not proven that any lifting caused an injury that made a material contribution to the disc protrusion on 18 July 2006.

1. The first point to note about this is that if this were to be raised as a ground of appeal, it should have been clearly articulated. It was not. Nor was it made clear in the written submissions for Mr White on this appeal that such a complaint was pressed. Logen has legitimate basis for complaint as to the lateness with which this hitherto undisclosed "important issue" as to her Honour's reasoning process was raised. That said, it is not necessary to dwell on that since in my opinion the complaint is unsustainable. Her Honour explained why it was that Mr Adams' report was of no assistance in determining that the lifting activities had contributed to the injury (as her Honour also did for the conclusion that Mr Adams' evidence was equivocal in relation to the horizontal lifting forces exerted in the manner in which Mr White engaged in the buffing activities). Her Honour's conclusion was based on the incorrect and unfounded assumptions on which Mr Adams' assessment of the risk of such activities was based, which left her in the position that she was unable to reach the requisite degree of persuasion as to the foundation for his opinions.

1. Therefore, apart from the fact that her Honour did not make findings in relation to the safe system of work allegations (which I consider in the context of later grounds of appeal), grounds 1 and 4 are not in my opinion made out.

Ground 2 - Mr Adams' evidence

1. Ground 2 of the grounds of appeal contends that her Honour erred in rejecting the whole of Mr Adams' evidence having regard to the matters set out in paragraphs (a), (b) and (c). Her Honour did not reject Mr Adams' evidence as such. Rather, her Honour admitted the evidence (subject to the qualification referred to earlier) but ultimately ascribed to it no or little weight, having regard to the deficiencies in Mr Adams' instructions and the perceived inadequacy in the elaboration of its scientific basis.

1. As to the matter referred to in 2(a), the fact that Logen did not call expert ergonomic evidence did not require her Honour to accept the evidence of Mr Adams, particularly having regard to the nature of the challenges made in cross-examination of Mr Adams as to the basis for the opinions he had asserted.

1. As to the matter referred to in 2(b), the supposedly immaterial respects in which there were differences between the assumptions made by Mr Adams and the evidence given by Mr White at the hearing were not clearly identified but the tenor of the submissions suggests that the differences to which reference is made in this aspect of ground 2 of the appeal included at least: the weight of the buffing machine (assumed by Mr Adams, on the basis of Mr White's instructions, to be about 10kg but as to which Mr White gave no direct evidence) and the extent of Mr White's horizontal reach when buffing vehicles (as to which Mr Adams conceded he had proceeded on an incorrect assumption). Reference was made to the fact that, at the hearing, Mr White agreed that the facts set out in Mr Adams' report were correct.

1. Insofar as it was contended that Mr Adams' report of what Mr White's instructions to him had been (as to matters such as the weight of the machine and the description of the activities involved in buffing) was sufficient to provide a proper factual basis for the conclusions he had reached, this must be rejected. Proof of the factual basis for assumptions on which an expert is asked to rely is not supplied simply by the expert recording instructions to that effect. The unreliability of such evidence is illustrated by Mr White's inability to estimate the weight of another buffing machine when shown a photograph thereof. Whether or not, as was in effect argued for Mr White, it would be a matter of common knowledge that a buffing machine would be of at least "modest weight", the fact is that Mr Adams' analysis of the risk of the activities in which Mr White was engaged depended on assumptions as to this and other matters that were not proved.

1. Her Honour in my opinion correctly accepted the submissions by Logen, based on Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 (citing Makita v Sprowles), to the effect that the factual foundation for Mr Adams' opinion was not established nor had he explained how his opinion applied to the assumed facts so as to produce the opinion propounded. That this is the case was illustrated by the debate on the appeal as to how the Court was to understand the opinion expressed by reference to horizontal lifting forces in tables applying in terms to the vertical lifting of objects (which I discuss below).

1. Mr White submitted that her Honour did not undertake an analysis of the criticisms made of Mr Adams' report so as to enable a principled determination as to the impact of variations in the evidence on the validity of his opinions, referring by way of example, to the issue as to how far Mr White was required to reach across the bonnet when buffing. It was submitted that criticism of Mr Adams' report on this issue was not to the point, since Mr White had been required to reach beyond the point at which the material annexed to Mr Adams' report showed a heightened risk of injury (i.e., more than 0.63m).

1. However, the material to which reference was there made in relation to horizontal lifting pressures related in terms to vertical lifting activities. Although it was submitted for Mr White that "horizontal lifting distance" includes suspension, the report annexed to his opinion defines lifting task as "vertically moving" the object. When taken in conjunction with the admitted lack of analysis of matters relating to load bearing and horizontal reach, the difficulty of placing weight on Mr Adams' opinion as to the risk involved in full horizontal reach when buffing becomes apparent.

1. The criticism of her Honour's analysis of the variations between assumptions and proven facts, or of those matters on which Mr Adams conceded that he had carried out no investigation or scientific analysis, in my opinion highlights the hypothetical nature of the analysis carried out by Mr Adams. Matters such as the weight of the buffing machine and the extent of Mr White's horizontal reach when buffing were said by Mr Adams to be either not critical or not "necessarily relevant" to his analysis of the risk factors involved in the tasks carried out by Mr White. However, Mr Adams, in giving that oral evidence, did not give her Honour any real assistance as to the particular matters that were critical or as to the relative import of the variations in assumed facts.

1. Mr White contends that the general statements made by Mr Adams as to the cumulative effect of activities such as bending and twisting, and lifting, do not depend for their legitimacy on assumptions or evidence; rather, that they are statements of general application and should not have been rejected in reliance on Makita v Sprowles. However, her Honour did not reject general propositions of that kind at all. Her Honour simply found that they did not assist in establishing that the injury sustained by Mr White was caused by such activities.

1. In those circumstances, her Honour did not err in concluding that Mr Adams' report was of little ultimate assistance. It simply provided a basis for concluding that tasks of the kind that Mr White had described and with equipment of a "modest" weight, if engaged in cumulatively and repeatedly, carried with them a heightened or significant risk of injury but it did not establish that Mr White's injury on 18 July 2006 had been caused by the cumulative effect of those repeated activities.

1. As to the matter referred to in paragraph (c) of ground 2, namely the sufficiency of the annexures to Mr Adams' report, together with the lay evidence, to establish that there was an unsafe system of work, this raises the more general complaint as to the failure to deal with that allegation of negligence. In the context of the rejection of (or, more precisely, the lack of weight attributed to) Mr Adams' report, it is submitted that the comments made about safety management considerations were not opinions expressed by Mr Adams and therefore were not susceptible of rejection on the basis that her Honour found. That submission is difficult to maintain when section 5 of Mr Adams' report does in terms express a number of opinions on which Mr White relies for the allegations relating to failure to provide a safe system of works. In any event, the fact that Mr Adams produced material to support general propositions about safe systems of work does not mean that her Honour erred in failing to accord his report weight in relation to the issue as to whether, in this case, any breach of duty had been causative of the injury sustained by Mr White. That is the context in which her Honour dealt with Mr Adams' report. I am not persuaded that there was any error in so doing.

Grounds 3, 5 and 6 - alleged unsafe system of work

1. These grounds of appeal relate to the allegation that Logen was in breach of its duty as employer to provide a safe system of work. Ground 2(c), as noted above, maintains that the annexures to Mr Adams' report, together with the lay evidence, were sufficient to establish that there was an unsafe system of work. Ground 3, in effect, maintains that this breach was established on Mr White's evidence alone (but with particular reference to "lifting"). Grounds 5 and 6 related to the lack of any findings as to the system of work devised by Logen and whether it was safe or unsafe.

1. Mr White maintains that her Honour failed to deal with his claim that his injuries were caused by the cumulative effect of the "nature and conditions" of his employment, and Logen's failure to train him in the proper use of the equipment and proper lifting techniques (as opposed to a single act or omission on the part of Logen).

1. Reference is made to Mr White's evidence that he had received no training on how to handle and lift goods safely; that he had never been told that it was unwise to bend and twist while lifting something heavy; that he had never been told that it was a bad idea to be lifting the buffing machines with his arms outstretched; that others working at the premises buffed the cars and lifted the drums of thinners in the same way that he did; and that no-one had ever stopped him (or other workers) from working that way. Mr White further denied that a trolley was available for him to move the paint thinners, this being a measure that Mr Adams had suggested would reduce the risk of injury from lifting heavy items such as the drums of paint thinner.

1. Mr White submits that her Honour should have found that the buffing work involved a negligent system of work, having regard to his evidence and/or by reference to Mr Adams' opinion that the repeated nature of the activity over periods of time day after day had a higher risk of injury.

1. Emphasis was placed by Mr Adams, in his report, on the obligation of an employer under clause 10 of the Occupational Health and Safety Regulation 2001 (NSW) to assess the risk of harm to the health or safety of employees. This is an obligation to assess such risks arising from any hazard identified in accordance with Chapter 2 of the regulation. The hazards to which clause 10 of the regulation refers are those the subject of clause 9, namely any foreseeable hazard that may arise from the conduct of the employer's undertaking and that has the potential to harm the health or safety of, relevantly, an employee. Such hazards include hazards arising from work practices and work systems (including hazardous processes) (clause 2(b)) and manual handling (including the potential for occupational overuse injuries) (clause 2(f)).

1. While Mr White accepts that it was his onus to prove that there were circumstances in which there should have been a risk safety analysis, he places weight on the fact that her Honour found that there was no evidence that a risk analysis assessment had taken place after Logen took over the business.

1. It is submitted that it could be inferred that there was no such risk analysis by reference to Mr White's evidence as to what happened prior to him commencing his employment with Logen; to Mr White's evidence that, as at December 2004, his new employer did not tell him anything about manual handling techniques (though it is accepted that there is no evidence about what in fact happened after December 2004); and that Mr White was not instructed to carry out his work differently after that. Mr Bryn was not cross-examined on the issue of whether any such analysis had been undertaken.

1. The existence of a legislative obligation to identify and assess the risk of potential hazards does not mean that Mr Adams' identification of injury risks establishes a breach of that obligation. The note to clause 10 of the regulation refers to particular sections of the legislation under which employers are required to keep and maintain risk assessment reports in relation to confined spaces, to record results of risk assessment in relation to hazardous substances and to prepare written risk assessments in respect of electrical work on electrical installations. There is no similar obligation for records to be maintained of more general safety risk assessments. There is a duty to consider whether to keep records in relation to hazards to access to, use of, or egress from premises (clauses 34 and 35), although not more general matters. Even if there were no records, this would be no basis to conclude that Logen had not carried out a safety analysis at any relevant time, or that it had done so negligently.

1. It cannot be inferred from what the previous employer did or did not do that no such analysis was carried out by Logen at any relevant time during the period from December 2004 to July 2006. Nor can it be inferred from the evidence of Mr White (i.e., that no instructions were given to him to stop carrying on work as he was doing or, to his observation, that no such instructions were given to others) that there was no risk analysis carried out of any kind or that it was carried out negligently. Mr Byrn was not asked, for example, about Logen's practice in relation to work safety analysis or about features of the work activities that might have been able to be changed. Logen submits that the work safety analysis issue was effectively untested by Mr White. I agree. I am not persuaded that Mr White's lay evidence is sufficient to establish such a breach and ground 3 is not made out.

1. I turn then to the criticism made by Mr White that her Honour did not refer to the facts identified by Mr Adams as likely to cause injury, as referred to in the publications which were summarised in Mr Adams' report, and should have concluded that the system of work was unsafe. Mr White submits that the system of work operating in the factory did not meet the standards required by the WorkSafe Standard Australia Manual Handling National Code of Practice 1990.

1. The argument for Mr White is that the guidelines established that there was no safe weight when stretching more than 0.63m, and using a two-handed method of applying some force to a buffing machine even of "modest" weight for long periods of time, and hence that the requirement that Mr White do so was a breach. Mr Adams agreed that there is a range of human activity that involves horizontal reaching. Although weight was placed on the evidence of Mr Adams that when stretching horizontally beyond 0.63m there was no safe suspension weight, the material annexed to Mr Adams' report, as noted earlier, relates this to vertical lifting tasks.

1. It may readily be accepted that Mr Adams' evidence established that repetitive movements of the kind that Mr White says he performed may cause stress injuries to the back and that at least some measures could have reduced that risk of harm (such as the provision of a trolley to minimise the risk of vertical lifting, whether with or without a bending or twisting movement). Her Honour did not make findings as to the system of work that was in place (other than to record Mr White's summary of what was done) and did not make findings as to whether any relevant instruction had been given to Mr White as to the lifting of heavy items or the method of using the buffing machine. Grounds 5 and 6 are therefore made good.

1. Whether, as ground 2(c) asserts, the lack of instructions to which Mr White deposed would itself establish a failure to devise and implement a safe system of work would require a closer assessment of the application of manual handling guidelines to the activities in question and of matters such as the safety instructions and procedures in fact implemented by Logen, which this Court is not in a position to determine on the material before it.

1. However, whether or not the lifting and/or buffing activities, or a combination thereof, gave rise to such a risk of injury that it was incumbent on Logen, as employer, to take reasonable steps to prevent, the difficulty for Mr White is that, even assuming there was a breach of duty in that regard, the medical evidence did not establish that the injury he sustained in July 2006 was the result of cumulative stresses from those activities. Logen submits that there was no evidence that the removal of any avoidable stresses would have made any difference to Mr White's (existing) back condition.

1. Mr White submits that one should infer that the cumulative effect of his work was causative of the injury, pointing to the evidence of Drs Giblin and Wilding as establishing the connection between the nature and conditions of his work and the injury. However, as I read their reports, Drs Giblin and Wilding did no more than state a conclusion as to the cause of injury being the nature and conditions of work. They did not explain their respective conclusions. Nor did either of them apparently address the question of any genetic abnormalities, as identified by Dr Smith.

1. There was no medical evidence to support the conclusion that cumulative lifting (or bending and twisting coupled with lifting) stresses caused or made a material contribution to the injuries sustained by Mr White, whether or not (as Mr Adams considered) such injuries could have been avoided by the putting in place of risk/safety measures of the kind identified by Mr Adams. Any breach of duty arising from a failure to put in place measures to address the risks identified by Mr Adams was not shown to be causative of his injury. For that reason, even though her Honour did not expressly address the issues raised in grounds 5 and 6, this is not a matter that should be remitted (having regard to rule 51.53 of the Uniform Civil Procedure Rules 2005 (NSW)), since I am not satisfied that there has been a substantial wrong or miscarriage resulting therefrom.

Conclusion

1. For the reasons above, the appeal should be dismissed with costs.

1. SACKVILLE AJA: I agree with the orders proposed by Ward JA and with her Honour's reasoning.

1. I wish to reiterate that if the appellant (Mr White) intended to challenge her Honour's finding that he had not proved that any lifting materially contributed to the disc protrusion, that challenge should have been made in the notice of appeal. Not only was the challenge not made in the grounds of appeal, but Mr White's written submissions in chief did not challenge the finding, despite the submissions referring expressly to the finding. Mr White's written submissions in reply also did not challenge the finding, notwithstanding that the submissions of the respondent (Logen) identified the finding on causation as an important element in her Honour's reasoning.

1. In these circumstances, I think it is unfair to Logen to allow Mr White to raise the issue for the first time in oral submissions. It is also not in accordance with the responsibility of a party to civil proceedings to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute: Civil Procedure Act2005, (NSW), s 56(3). I would therefore not be disposed to permit Mr White to make a belated challenge to the finding. In any event, for the reasons given by Ward JA, the challenge to the finding cannot succeed. I add only that there is nothing in the medical reports suggesting that Mr White's propensity to a disc protrusion was increased by any lifting activity he undertook while employed by Logen.

1. The second limb of Mr White's argument was that Logen had failed to implement a safe system of work. Specifically, it was said that Logen had not introduced measures to reduce the risk of back injury associated with repeatedly bending and twisting while using the buffing machine and with having to lift the machine. As I read the primary judgment, her Honour found that Mr White had not established that Logen had breached its non-delegable duty to provide a safe system of work. Her Honour reached this conclusion because she considered that no adequate factual basis had been established for the opinions stated by Mr Adams and, that his report did not "demonstrate the scientific or other intellectual basis of his conclusions".

1. In my opinion, Mr White has not shown that the primary Judge erred in declining to find that Logen failed to provide a safe system of work. Mr White relied on Mr Adams' report to demonstrate that there were a variety of preventative actions that might have significantly reduced Mr White's exposure to the risks of injury from lifting heavy objects or from operating the buffing machine. As Ward JA has explained, the primary Judge's conclusion that Mr Adams' report was of little assistance on these and other issues was well-founded.

1. Moreover, as Ward JA has also explained, the medical evidence did not establish that the injury Mr White sustained in July 2006 was the result of any breach by Logen of its obligation to provide a safe system of work. Mr White had sustained a significant back injury in 2002 or early 2003 and, as the primary Judge found, had been suffering significant back pain since at least February 2003, 22 months before he commenced employment with Logen in December 2004. By 2005, as the primary Judge also found, Mr White was putting up with constant pain in his groin, leg and hip. The level of pain he experienced after December 2004 appears to have been much the same until the precipitating event occurred in July 2006. The medical evidence did not suggest that if safety measures of the kind advocated by Mr Adams had been adopted, Mr White would probably have avoided the injury he ultimately sustained.

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Decision last updated: 22 May 2014