Jasmina Investments Pty Ltd v Vlahos - [2009] WASCA 190

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: JASMINA INVESTMENTS PTY LTD -v- VLAHOS [2009] WASCA 190

CORAM: WHEELER JA
BUSS JA
NEWNES JA

HEARD: 3 SEPTEMBER 2009

DELIVERED : 3 NOVEMBER 2009

FILE NO/S: CACV 13 of 2009

BETWEEN: JASMINA INVESTMENTS PTY LTD
Appellant
AND
STAMATI VLAHOS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :VLAHOS -v- JASMINA INVESTMENTS PTY LTD [2008] WADC 181
File No  :CIV 1023 of 2006

Catchwords:

Negligence - Personal injury - Employee knelt on bar stool to change light - Knee injury - Whether employer provided suitable equipment to employee - Ladder provided - Employee elected not to use ladder - Employer unaware that employee did not intend to use ladder - No breach of duty by employer - No medical evidence as to cause of injury - Causation not established - Turns on own facts

Legislation:

Nil

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr G R Hancy
Respondent: Mr D R Clyne

Solicitors:

Appellant: Greenland Legal Pty Ltd
Respondent: Simon Walters

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Illawarra Area Health Service v Dell [2005] NSWCA 381
Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
Paris v Stepney Borough Council [1951] AC 367
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt (1980) 146 CLR 40

WHEELER JA: I agree with Newnes JA.
BUSS JA: After a trial in the District Court, Eaton DCJ entered judgment against the appellant (as defendant) in proceedings brought by the respondent (as plaintiff) for damages in respect of a personal injury suffered by him.
At all material times, the appellant carried on the business of the Marracoonda Motel at Great Eastern Highway, Redcliffe. At all material times, the appellant employed the respondent as a general handyman/maintenance worker at the motel.
The respondent alleged that he suffered an injury to his knee, in the course of his employment, while kneeling on a padded bar stool in order to change a light bulb. He contended, relevantly, that this injury was caused by the appellant's negligence in failing to provide him with appropriate equipment (namely, a suitable ladder) on which to stand.

The duty of care owed by an employer to its employees and the standard of care

At common law an employer owes a duty to its employees to take reasonable care for their safety, in the absence of statutory provisions to the contrary. This duty includes an obligation to take reasonable steps to provide a safe system of work. See Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; (2004) 217 CLR 424 [34] (Gleeson CJ, McHugh, Gummow, Hayne & Heydon JJ).
An employer's common law duty to take reasonable care for the safety of its employees requires the employer, relevantly, to exercise reasonable care to avoid a foreseeable risk of injury to its employees in the course of their employment.
An employer's obligation in relation to a safe system of work involves the taking of reasonable steps to establish, maintain and enforce such a system. See McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, 313 (Mason, Wilson, Brennan & Dawson JJ).
The duty of an employer is owed to each employee as an individual. See Paris v Stepney Borough Council [1951] AC 367, 375 (Lord Simonds), 380 (Lord Normand); Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [6] (Gleeson CJ & Kirby J), [122] (Hayne J).

A risk of injury will be reasonably foreseeable if it is not far-fetched or fanciful. The risk may be reasonably foreseeable even though it is unlikely to occur or is remote. See Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617, 641 ‑ 643. The test of reasonable foreseeability, as stated in Shirt, must be applied without hindsight. The test is, however, undemanding. See Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 [54] (Callinan J); Vairy [213] (Callinan & Heydon JJ).
It is unnecessary that a defendant should have foreseen the precise risk of injury or how it occurred. It is sufficient if the risk is within a class of risks that the defendant should, in a general way, have foreseen. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [87] (McHugh J).
In State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, there was discussion as to whether the correctness of Shirt (in particular, the well-known statement of principle by Mason J) should be reconsidered. The Court decided that the circumstances of the case before them did not require reconsideration of Mason J's statement of principle.
The standard of care (that is, the measure of the discharge of the duty of care) applicable to an employer is what, if anything, a reasonable person in the employer's position would have done by way of response to the foreseeable risk that its employees may suffer injury as a result of a particular act, omission or circumstance.
The standard of care required in relation to each employee must be determined having regard to the facts and circumstances applicable to that employee and his or her employment of which the employer knows or should know. See Illawarra Area Health Service v Dell [2005] NSWCA 381 [114].
The determination of what, if anything, a reasonable person in the employer's position would have done involves an assessment of what would have been reasonable and practicable for the employer to have done. This enquiry is not to be undertaken in hindsight. See Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 [93] (Hayne J); Vairy [126] - [129] (Hayne J); Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [50] (Hayne J). It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. See Fahy [57]. As Gummow and Hayne JJ explained in Fahy [58]:
It is only if the examination of breach focuses upon 'what a reasonable man would do by way of response to the risk' (Shirt (1980) 146 CLR 40 at 47) (emphasis added) that it is sensible to consider 'the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have' (Shirt (1980) 146 CLR 40 at 47 ‑ 48). (original emphasis)
Issues of breach and causation in an action for personal injuries are interrelated. See Illawarra Area Health Services [83] - [84].
Contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. See Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, 309 (Mason, Wilson & Dawson JJ).
Reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [36] (Gleeson CJ, McHugh, Kirby, Hayne & Heydon JJ); Mulligan [3] (Gleeson CJ & Kirby J); Fahy [7] (Gleeson CJ). The occurrence of a foreseeable risk does not establish unreasonableness. See Illawarra Area Health Services [85].

The respondent's plea in relation to duty of care

The respondent's statement of claim did not plead the alleged duty of care owed by the appellant. The statement of claim merely pleaded, relevantly, that the accident in which the respondent suffered the injury to his left knee was caused by the appellant's negligence.

The respondent's plea in relation to breach

Newnes JA has reproduced in his reasons the respondent's particulars of negligence. As his Honour has noted, the sole particular of negligence which the trial judge found had been made out was the appellant's failure to provide the respondent with appropriate equipment, namely, a suitable ladder.

Disposition of the appeal: breach

I agree with Newnes JA, for the reasons he gives, that the trial judge was in error in finding that the appellant had breached the duty of care it owed to the respondent.
The trial judge's finding of negligence did not depend, relevantly, on any credibility‑based conclusions. The 'natural limitations' that exist where an appellate court proceeds wholly or substantially on the record do not preclude this court from making its own findings in relation to the appellant's alleged negligence.
I am satisfied, for the reasons given by Newnes JA, that the proper conclusion from the facts as found by the trial judge, and the evidence that was not seriously in dispute, is that the appellant did not breach any duty of care.

Causation

An employer will be liable in negligence only if the injury which its employee has suffered was caused by the employer's negligent act or omission. In Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, McHugh J noted that if the evidence suggests that a defendant's negligent act or omission would have made no difference to the plaintiff's course of action, the defendant will not have caused the damage which the plaintiff has suffered [32]. The issue of causation requires the plaintiff to prove what would probably have eventuated had the defendant's negligence not occurred. This is necessarily a hypothetical question and involves an evaluation of circumstances which did not in fact happen. The test is subjective. See Chappel [32] (McHugh J), [93] (Kirby J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [24] (McHugh J).
It is not necessary that the employer's negligent act or omission be the sole cause of the employee's injury. Causation will be established if the relevant act or omission contributed materially to the damage suffered. See March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 514 (Mason CJ); Chappel [27] (McHugh J).
A court may infer causation by reference to the objective facts and probabilities. Direct evidence is not essential. See Rosenberg [44] (McHugh J).
Causation is, in essence, a question of fact. It is not susceptible of reduction to any one philosophical or scientific formula, such as the 'but for' test. Rather, it is to be resolved as a matter of common sense and experience. See Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268, 277 ‑ 278 (Dixon CJ, Fullagar & Kitto JJ); March, 515 (Mason CJ), 522 ‑ 523 (Deane J), 524 (Toohey J); Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 6 (Deane, Dawson, Toohey & Gaudron JJ). The 'but for' test, applied as a negative criterion of causation, has an important role to play. It is not, however, a comprehensive and exclusive test of causation. See March, 515 (Mason CJ); Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413 (Mason CJ, Deane & Toohey JJ); Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 [32] (Gummow, Hayne & Heydon JJ).

Disposition of the appeal: causation

The trial judge was in error in finding that the respondent had established causation. As with breach, this finding did not depend, relevantly, on any credibility‑based conclusions. The 'natural limitations' of appellate review do not preclude this court from making its own findings on causation.
In my opinion, the trial judge should have found, as a matter of common sense and experience, that any negligence of the appellant in failing to provide the respondent with a suitable ladder was not causally relevant to the injury suffered to his left knee. In particular:
(a)The provision of a suitable ladder was directed at preventing or minimising the risk of injury as a result of a fall. This was not the mechanism by which the respondent injured his left knee.
(b)The trial judge's conclusion that the injury was 'an over‑exertion injury' brought about by the respondent leaning slightly to one side in order to insert the light bulb into the socket was speculation and not based on admissible evidence.
(c)The physiological cause of the injury was not the subject of any evidence at the trial. The evidence merely established that he injured his knee while he was kneeling on the padded bar stool.
(d)There was no evidence, or foundation in common sense or experience, of any particular risk of an employee suffering an injury while kneeling on a padded bar stool, apart from the risk of an injury as a result of a fall.

(e)There was no evidence, or foundation in common sense or experience, that the appellant's failure to provide the respondent with a suitable ladder created an increased risk of relevant injury. In any event, there was no evidence, or foundation in common sense or experience, that any increased risk of injury was realised when the respondent suffered his injury.

Conclusion

I would allow the appeal, set aside the judgment entered by the trial judge, and dismiss the respondent's claim against the appellant.
NEWNES JA: This appeal arises out of an injury which the respondent suffered to his left knee when he knelt on a bar stool in order to change a light bulb in a bar at the Marracoonda Motel (the motel) in Great Eastern Highway, Redcliffe. The respondent was employed by the appellant, which owned the motel. The respondent says that the injury to his knee was caused by the negligence of the appellant in failing to provide him with an appropriate ladder to stand on to change the light bulb.
The respondent was successful at trial and judgment was entered for the respondent in the agreed sum of $210,000 plus costs. The appellant appeals against the finding that it was liable for the respondent's injury.

The pleaded case

The respondent alleged that the appellant was negligent in that it:
(a)failed to provide the [respondent] with the appropriate equipment, that is, an articulated ladder;
(b)failed to provide the [respondent] with a workmate to assist in changing the light globe;
(c)exposed the [respondent] to a risk of damage or injury of which it knew or ought to have known;
(d)invited or required the [respondent] to perform work that was dangerous or unsafe;
(e)failed to warn the [respondent] of any or all dangers associated with the work that he was invited or required to perform; and
(f)exposed the [respondent] to a risk of damage or injury of which it knew or ought to have known.

The evidence at trial

At the relevant time, the respondent was employed by the appellant as a maintenance worker at the motel. The respondent's duties included maintaining the grounds of the motel and attending to general maintenance tasks in and about the motel. The motel had more than 100 rooms, contained in an older section comprising single bungalow units and a new section comprising a two‑storey building. The equipment provided to the respondent for his work was kept in the motel workshop.
A maintenance book was kept in the reception area of the motel, in which were recorded items in need of attention. Each morning upon arriving at work the respondent would check the maintenance book to see what had to be done that day. He would attend first to the items that were urgent and then deal with the remaining items.
On 1 October 2004, the respondent started work at about 5.30 am. He consulted the maintenance book and made a handwritten note of things that needed to be done. He then went to the workshop and listed the various jobs in order of priority. The respondent finished the urgent jobs at about 10.00 am and then set about attending to the balance. One of those tasks was to change a light bulb in the bar area of the motel.
The respondent gave evidence that two ladders were kept in the workshop. Both were made of aluminium and had foot treads rather than rungs. Each of the ladders had two legs which opened out, with the legs constrained by bilateral braces. The larger of the two ladders was about 1.8 m in height and the smaller one was about 0.8 m in height. The smaller ladder had three steps, including the top step. The respondent could not remember how many steps the larger ladder had. He said he had used the larger ladder to clean gutters and occasionally to replace a ceiling fan in a room. The bilateral braces were slightly bent so that the legs of the ladder did not fully open, but the respondent said that when it was opened it was stable.
The bar in which the light bulb had to be replaced was on the ground floor of the motel. Access to it was through glass doors. When the respondent left the workshop to go to the bar he was carrying the smaller of the two ladders and a bucket containing spare light bulbs. It appears that the respondent had the smaller ladder with him not for that job but for other jobs he had to do later in the morning. The respondent said he avoided using the larger ladder because it was heavier, more awkward to carry, and more difficult to manoeuvre in and out of rooms in the motel. He tended to take the smaller ladder with him in the course of his work because it was light, less awkward and more manoeuvrable. It was, he said, a matter of practicality or convenience.
The bar area in which the light bulb had to be replaced was approximately two minutes walk from the workshop. The light bulb to be replaced was a small halogen fitting. At its base were two protruding pins which had to be inserted into corresponding holes in the light socket. As the light bulb was above the bar, it was not possible to place the ladder immediately beneath the socket.
The respondent did not use the ladder he had with him when changing the light bulb. He said he did not do so because he would have had to stand on the second step and lean to his left in order to reach the socket. In that position there was nothing to hold onto with his spare hand to steady himself, with the result that he would be in an unstable position and likely to fall. The respondent therefore chose to kneel with both knees on a padded bar stool, place one hand on the bar to steady himself, and lean forward and change the light globe with his other hand. He said that the back of the bar stool was positioned against the bar so the bar stool could not swivel. The respondent gave evidence that he had previously knelt on a bar stool to changed light bulbs above the bar as he found it more convenient and less dangerous than standing on the smaller ladder.
The respondent gave evidence that as he was kneeling on the bar stool and reaching up to insert the light bulb his left knee cracked. It was not in issue that the respondent suffered a complex tear of the medial meniscus of the left knee and attenuation of the anterior cruciate ligament. He subsequently underwent a partial meniscectomy and chondroplasty. He was prescribed bed rest, physiotherapy, an exercise program, ultrasound, soft tissue massage, mobilisation and the use of a patello‑femoral joint stabilising brace, and anti‑inflammatory and analgesic medication.

The respondent said that he suffers pain, stiffness, tenderness and a limitation of movements of the left knee, with an inability to kneel, squat or climb stairs and with a lack of control and strength in the knee. As I have mentioned, in the event that liability was found, damages were agreed in the sum of $210,000.
The respondent called the current maintenance man at the motel, Mr Heathfield, to give evidence. Mr Heathfield said that the braces on the larger ladder were slightly buckled but the ladder was stable when opened up. His only complaint about the ladder was that it was old and heavy. Mr Heathfield gave evidence that he had used the ladder to replace the type of light bulb above the bar that was being replaced by the respondent at the time of the accident. Mr Heathfield said that, although the larger ladder was old and heavy, it was a suitable ladder for that purpose. At some time prior to the trial, both ladders had been disposed of and new ladders purchased by the appellant.
Evidence was given by two ergonomic experts, Dr Ian Gibson on behalf of the respondent and Ms Jennifer Miller on behalf of the appellant. Dr Gibson did not visit the site or inspect any of the equipment used by the respondent. He acknowledged the limitations inherent in not having visited the workplace or seen the equipment available. Dr Gibson concluded that, based on the description of it given to him by the respondent (a description which Dr Gibson did not detail), the smaller ladder did not meet the requirements of the relevant Australian standard. He considered the smaller ladder was not suitable for the task of changing the light bulb because it exposed the respondent to the risk of injury from a fall. Dr Gibson considered that the appellant could have reduced the risk of injury by providing a suitable stepladder, which was obtainable at a cost of approximately $500. He also considered that a bar stool was not acceptable equipment to use because of the risk that it might swivel causing the person to fall, but he did not comment on the manner in which the bar stool had been positioned by the respondent to prevent it swivelling. Dr Gibson did not, however, consider there was a problem with someone kneeling occasionally on a soft surface to carry out a task (ts 66).
Ms Miller inspected the bar area and took measurements of it. She was not able to inspect the smaller ladder as it had been disposed of by the time of her inspection. Ms Miller concluded that the task of changing the light bulb above the bar by kneeling on a bar stool, pushed against the bar so it could not swivel, posed little risk of injury. The respondent would have been required to kneel on the padded surface for a very short period of time. Ms Miller considered that the light bulb could be changed 'quite safely' using the method the respondent used (ts 93); it was not a conventional method but it was 'a safe option'. The only potential risk was falling from the stool, a risk which Ms Miller concluded was 'a very low risk' (ts 95).
Ms Miller also concluded that the task could have been carried out with very little risk of injury by standing on a ladder. At the time of her first report, Ms Miller erroneously believed that the ladder which the respondent had available to him at the time of the accident was a domestic ladder, which she described as a 'Bailey Omega 5' ladder, rather than an industrial ladder. Although Ms Miller believed that an industrial ladder should have been provided, nevertheless she considered that the Bailey Omega 5 ladder was a suitable ladder.
In a supplementary report, Ms Miller concluded that from the information subsequently given to her, the ladder which the respondent had available to him was not the Bailey Omega 5 ladder and may in fact have been an industrial ladder. Ms Miller said she had also been informed that the struts on the ladder available to the respondent were bent, but she considered that so long as the ladder was stable when set up and there was a place to hold on with one hand while changing the light fitting with the other, there was little risk of injury.

Findings of the trial judge

The trial judge noted that an employer owes a non‑delegable duty of care to an employee to take reasonable care to avoid exposing the employee to unnecessary risks of injury. That involved, among other things, providing an employee with suitable plant and equipment in order to enable them to carry out their work safely.
His Honour found ([52]) that the task of changing the light bulb in the bar required the respondent to have a ladder. When he left the workshop the respondent took with him the smaller ladder, not for the purpose of changing the light bulb, but for other tasks which he intended to do subsequently. He did not carry the larger ladder with him because he regarded it as too awkward and too heavy to be carried around as part of his daily routine. His Honour observed that the respondent chose not to take the larger ladder and walk the two minutes back to the workshop to return it after changing the light bulb but adopted the method of kneeling on the bar stool, a method that he had used previously and one which, on Ms Miller's evidence, posed little risk of injury.
His Honour rejected all but one of the grounds of negligence alleged by the respondent. (The rejection of the other grounds is not challenged on the appeal.) He found ([56]) that the only question was whether the respondent was provided with a ladder appropriate to the task which gave rise to the injury.
His Honour went on to say, however:
The relevant duty in the present case may more generally be described as a duty to provide a safe system of work. That duty incorporates a requirement that an employer provide its employee with equipment appropriate to the tasks that the employer requires the employee to undertake. Given the [respondent's] role of general handyman the duty required the [appellant] to provide the [respondent] with a range of equipment and tools appropriate to the variety of tasks that he might be required to undertake in discharging his duties. As mentioned, his duties comprised a wide variety of tasks including gardening, cleaning and what might be required by way of general maintenance. The latter would incorporate the need to replace consumables from time to time. Light fittings are consumables in the sense that they need to be replaced from time to time having a finite functional life. Given the variety of tasks required of the [respondent] I would expect that discharge of the duty would require that he be provided with more than one ladder, at least one larger and one smaller. The ladders should have been in compliance with the relevant Australian Standard AS/NZS 1982.1. On the evidence available to me it seems that neither ladder available to the [respondent] was compliant with that standard.
I conclude that the duty of care owed by the [appellant] to the [respondent] as described above existed. I conclude that the [appellant] was in breach of that duty in failing to provide ladders that were appropriate to the varied tasks required of the [respondent]. On the evidence of Ms Miller it seems that in order that the [respondent] be properly equipped for the varied tasks faced by him in his day‑to‑day work he should have been provided, not only with larger and smaller ladders compliant with relevant standards and codes, there should also have been a ladder of the type depicted at p 9 of her first report being the ladder manufactured by Bailey described by her as an 'Omega 5 platform single‑sided step ladder' which, she said, had been manufactured in accordance with the relevant standard and had a load rating of 100 kg. I infer that, had such a ladder been available, it would have been sufficiently light to be carried by the [respondent] without difficulty in the course of his tasks around the motel, sufficiently small to have been manoeuvred in the course of undertaking those tasks without difficulty and compliant, in terms of work practices, in that it would afford the necessary three points of contact … [58] ‑ [59].
His Honour then turned to the question of whether the breach of care caused the injury. He concluded that it did. His Honour found that the injury to the respondent's knee fell within the kind of injury that might be suffered as the result of the use of an 'inappropriate ladder'. His Honour found ([61]) that the type of injury suffered by the respondent was foreseeable in the event of the respondent undertaking a task requiring the use of the ladder and falling from it.
The trial judge noted that there was no medical evidence as to the mechanism of the injury but inferred that it was in the nature of an overexertion injury, brought about by the respondent leaning slightly to one side in order to insert the light bulb into the socket while kneeling on the apparently stable platform of the bar stool with both knees.
His Honour found that the injury was causally related to the appellant's breach of duty in failing to provide the respondent with appropriate ladders for the various tasks he was required to do in the course of his work. He found that the use of a larger ladder would have enabled the respondent to undertake the task with the three points of contact required for safety (in this instance two feet on a step and one hand on the upright of the ladder) while inserting the light fitting with the other hand. Being adjacent and sideways to the bar there was some lateral support to the ladder which might accommodate the need to lean to one side, as described by the respondent.
The trial judge noted that the respondent chose not to use the larger ladder available to him but rather to kneel on the bar stool, as in the past he had found that to be safe and suitable. The respondent's reason for not using the larger ladder 'related more to his reluctance to take it on his rounds in the course of his daily work because, firstly, of its weight and, secondly, of its awkwardness if he was required to use it in a guest room or other confined spaces. He certainly was required to work in guest rooms from time to time. The bar was not a confined space' ([63]).
His Honour found there was no evidence that the appellant knew the respondent would undertake the particular task in the manner he did. The respondent had 'adopted a novel approach to the task for his own reasons' ([64]).
His Honour then went on to say:
In my view, it was foreseeable that the [respondent], not having a ladder appropriate to the task, would attempt to undertake the task of changing the light fitting in the bar without the use of a ladder. The novel method adopted by the [respondent] was itself, in my view, not foreseeable by the [appellant] but the injury to the knee, was causally related to the [appellant's] breach of its duty to provide the [respondent] with a safe system of work and equipment appropriate to the tasks that he was required to undertake. That is because it was foreseeable that the [respondent] might, in the absence of appropriate equipment, attempt to undertake the task by some alternative method. I therefore find that the [appellant] is liable in damages for the … accident [65].
As I have mentioned, damages had been agreed in the sum of $210,000 in the event the respondent was successful on liability, and judgment was entered for the respondent for that amount and the costs of the action.

Grounds of appeal

The appellant relied on the following grounds of appeal:
1.The learned trial judge erred in fact in finding that the appellant failed to exercise reasonable care in that the action of the respondent in kneeling on a barstool to change a light globe did not expose the respondent to an unnecessary risk of injury or to any significant risk of injury or likely accident.
2.The learned trial judge erred in fact in finding that the respondent's injury was caused by the appellant's failure to provide him with a ladder that was different from the ladders that were available for his use, in that:
2.1the appellant's failure to provide a different ladder did not create a risk, or an increased risk, of knee injury and there was no evidence that the respondent's injury was the realisation of such risk or increased risk;
2.2a different ladder was a precaution against the risk of injury from falling from a ladder but the respondent was not injured by a fall from a ladder;
2.3the physical cause of the injury to the respondent's left knee is unknown.
3.The learned trial judge erred in holding that the appellant breached a duty of care in failing to provide ladders that were appropriate to the various tasks required of the respondent in that the respondent's pleaded case was that the appellant failed to provide the respondent with an articulated ladder and that allegation was not established.

The appellant's submissions

It was submitted on behalf of the appellant that there was no evidence that the respondent was exposed to a significant risk of injury in performing the task in the way in which he did. The trial judge found that the task was not inherently dangerous or difficult. The evidence of Ms Miller was that the method adopted by the respondent presented no risk of injury, apart from falling off the bar stool, and that risk was no greater than it would have been had the respondent been provided with a ladder with a handhold. The question of risk from using the bar stool in the way it was used was not addressed by Dr Gibson. The respondent did not establish that kneeling on a bar stool to change a light bulb exposed the respondent to any unnecessary risk of injury or that the magnitude of the risk, degree of likelihood of an accident occurring, or potential degree of injury, required the appellant to provide the respondent with another ladder.
It was submitted that his Honour erred in finding that the appellant was negligent in failing to provide the respondent with an appropriate ladder. The larger ladder was available to the respondent. There was no reason it could not have been used. The only reason the respondent did not use it was because he did not want to walk the two minutes to and from the workshop. Further, the trial judge's finding that the appellant breached its duty of care by failing to provide ladders 'that were appropriate to the various tasks required of the [respondent]' went outside the respondent's pleaded case. The respondent's case was that the appellant was negligent in failing to provide the respondent with 'an articulated ladder'. That case was not proved.
On causation, counsel for the appellant further argued that the trial judge should have found as a matter of fact and common sense that the injury was not caused by any negligence on the part of the appellant. It was not sufficient that the injury would not have occurred 'but for' the alleged negligence of the appellant in failing to provide a suitable ladder. There was no evidence that there was a risk of knee injury from kneeling on the bar stool. The risk of falling was no greater than from a ladder. There was also no evidence as to what caused the knee injury. The trial judge's conclusion that the respondent's injury was an overexertion injury was speculation and was not based on the evidence.

The respondent's submissions

It was submitted on behalf of the respondent that the risk of injury arising from the appellant's failure to provide an appropriate ladder was that the respondent would adopt an alternative procedure for changing the light bulb which was not as safe. That occurred. It is not relevant that the risk of the particular injury was not foreseen. What must be foreseeable is the risk of physical injury. There was a foreseeable risk of physical injury from the failure to provide a suitable ladder. It is irrelevant that the injury did not occur by a fall but by some other, unforeseen, means.
On the evidence, the smaller ladder was not suitable for the task and the larger ladder, while suitable from a height perspective, was too heavy, did not fully open or close, and was awkward to carry and to get through doorways. It was impractical in the circumstances.
On causation, it was submitted that it was foreseeable that if the respondent did not have a suitable ladder he would use a substitute procedure which was unlikely to be as safe as using a ladder and, as a consequence, present a risk of injury. As a matter of common sense, the appellant's failure to provide an appropriate ladder was the direct cause of the injury. If the respondent had such a ladder he would not have been kneeling and placing pressure on his left knee. It was the placing of pressure on his knee that caused the injury.
It was submitted that it was too late now for the appellant to complain that the finding of the trial judge was outside the pleaded case. The case revolved around the negligence of the appellant arising from its failure to provide an appropriate ladder. The case focused on the appropriateness of the ladders available to the respondent on the day of the accident. The availability of a suitable ladder was the case run at trial and the basis upon which the learned judge found that the appellant was negligent.

Disposition of the appeal

The trial judge correctly recognised that the duty the appellant, as an employer, owed to the respondent, as its employee, was a duty to take reasonable care to avoid exposing the respondent to unnecessary risks of injury: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 ‑ 308. In deciding whether there has been a breach of that duty, the first question is whether a reasonable person in the appellant's position would have foreseen that its conduct involved a risk of injury to the respondent or a class of persons including the respondent. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. If a risk of injury was foreseeable, the question then is what a reasonable person would do by way of response to the risk. That calls for a consideration, among other things, of the magnitude of the risk and the degree of the probability of its occurrence. See Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 ‑ 48.
It is, of course, necessary to bear in mind that the determination of what has to be done in order to discharge the duty involves looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 [57].
In my respectful opinion, the trial judge erred in concluding that the appellant was negligent.
In the first place, the specific duty alleged by the respondent was not, as his Honour at one point seems to have thought, a duty to provide a safe system of work. It was, as his Honour had earlier said, a duty to provide a ladder appropriate for the task on which the respondent was engaged when the injury occurred, a formulation of the duty not challenged on the appeal. In my opinion, the trial judge erred in finding that the appellant was in breach of its duty of care in failing to provide ladders that were appropriate to the varied tasks required of the respondent as a general handyman. What equipment the respondent might require for other, different tasks about the motel was not, with respect, to the point. The question was whether the appellant had taken reasonable steps to provide the respondent with adequate equipment - in the case advanced by the respondent, an appropriate ladder - to enable him to carry out safely the task on which he was engaged when the injury occurred. (I should note in passing that the pleaded case was a failure to provide an 'articulated ladder', a term which was not explained at the trial and which the trial judge said he did not understand. As the case was run, I do not think anything turns on 'articulated'.)

His Honour's finding that the appellant had failed to provide the respondent with an appropriate ladder to carry out that task is, with respect, contrary to the evidence and, indeed, to his Honour's conclusion that the task could have been safely carried out using a larger ladder than the one the respondent had taken with him. The respondent was familiar with the task, having changed the light bulb previously. A larger ladder was available to him in the workshop. There was no great inconvenience in using that ladder to change the light bulb. On the evidence, it was safe and suitable, albeit heavy. The workshop was no more than a two minute walk from the bar area. The true position, as his Honour found, was that respondent's reason for not using the larger ladder 'related more to his reluctance to take it on his rounds in the course of his daily work because, firstly, of its weight and, secondly, of its awkwardness if he was required to use it in a guest room or other confined spaces … The bar was not a confined space'. In other words, the appellant chose not to use the larger ladder simply because, in his view, it involved some minor inconvenience; instead of simply carrying the smaller ladder round with him on the jobs he had to do that morning, it would have required him to take the larger ladder to the bar area and then return it to the workshop.
I should say in that context that it was never suggested that the appellant could have, and should have, provided the respondent with one ladder which he could take with him to carry out all the tasks he was required to undertake in the course of his day to day work about the motel. As his Honour noted, the respondent needed to have available at least two (and his Honour seemed to think possibly three) different ladders to enable him to carry out all the various tasks he would have to undertake from time to time.
Contrary to the view of the trial judge, I do not consider that anything turns on the finding that the larger ladder did not comply with the relevant Australian standard, in that the braces on it were slightly bent. The evidence of both the respondent and Mr Heathfield was that it was stable, and Mr Heathfield gave evidence that he had used it subsequently when replacing light bulbs over the bar area. Ms Miller did not consider it was unsafe so long as it was stable when set up. The respondent did not suggest that he did not use it for the purpose of changing the light bulb because of any concerns about its safety. In fact, his evidence was that he used it for cleaning gutters and changing ceiling fans.
His Honour also appears, with respect, to have misunderstood the evidence of Ms Miller in respect of the 'Omega 5' type ladder. That ladder was not described by Ms Miller as an industrial ladder. Ms Miller described it as a domestic ladder. In her initial report, Ms Miller mistakenly thought that the appellant had provided the respondent with a ladder of the latter sort. Although Ms Miller considered such a ladder sufficient for the task, she believed the respondent should have been provided with an industrial ladder. In her supplementary report, Ms Miller acknowledged her error and said that from the description since given to her the ladder actually available to the respondent may have been an industrial ladder. In any event, Ms Miller did not suggest that an industrial ladder was necessary for the task of changing the light bulb. Ms Miller's evidence was that the respondent should have been provided with an industrial ladder because the respondent was 'doing a lot of things other than changing light bulbs above bars' (ts 95).
On the facts, I do not consider that it was open to the trial judge to find that the appellant was negligent. The appellant had provided the respondent with a ladder that was suitable for the task he had to do. For reasons of his own, and unbeknown to the appellant, the respondent chose not to use it but instead to kneel on a bar stool. I note for completeness that it was never part of the respondent's case that his failure to use the ladder was due to any lack of training or instruction that should have been provided by the appellant.
I should also add that, in any event, on the evidence the method used by the respondent of kneeling on a bar stool to replace the light bulb, rather than using a ladder, did not cause the respondent to be exposed to any increased risk of injury. There was no evidence that kneeling for a short time on the padded bar stool to change the light bulb involved any real risk of knee injury. Dr Gibson did not consider there was any problem with kneeling on a soft surface occasionally. While Dr Gibson thought that the use of a bar stool involved a risk of falling due to the bar stool swivelling, he did consider the effect of the way the bar stool was positioned by the respondent to prevent that happening. Ms Miller considered the light bulb could be changed 'quite safely' using the method the respondent used; it was 'a safe option'. The only potential risk was falling from the bar stool but, as it was positioned by the respondent, that was 'a very low risk'.
In addition, how the injury to the respondent's knee actually came about was not explained. As the trial judge noted, there was no medical evidence as to the physiological mechanism by which the injury occurred. Indeed, there was no medical evidence of any nature. With respect, in those circumstances it was not open to the trial judge to find that the respondent's injury was in the nature of an overexertion injury caused by kneeling on the bar stool.

Conclusion

In my respectful opinion, the trial judge erred in finding that the appellant was negligent and that the alleged negligence caused the injury. I would allow the appeal, set aside the judgment and dismiss the respondent's claim against the appellant.