Jenkin v Dalrymple Shire Council

[1993] QCA 142

IN THE COURT OF APPEAL	[1993] QCA 142
SUPREME COURT OF QUEENSLAND

Appeal No. 261 of 1992

Brisbane
[Jenkin v. Dalrymple Shire]

BETWEEN:

COLIN NORMAN JENKIN

(Plaintiff) Appellant

- and -

DALRYMPLE SHIRE COUNCIL

(Defendant) Respondent

The President
Mr. Justice Pincus

Mr. Justice Shepherdson

Judgment delivered 23/04/1993.

Separate reasons of the President, Pincus J.A. and
Shepherdson J., Pincus J.A. and Shepherdson J. concurring as

to the order made, the President dissenting.

APPEAL DISMISSED, WITH COSTS.

CATCHWORDS:	NEGLIGENCE - CAUSATION - Spinal injury resulting in permanent disability - whether vehicle in such a condition that there was a foreseeable risk of injury to the appellant - whether failure by the respondent to take steps to eliminate such risk.
Counsel:	R.R. Douglas Q.C., with him P. Lafferty for the Appellant J.A. Griffin Q.C., with him R.D. Pack for the Respondent
Solicitors:	Phillips Fox, t/a for Dempseys for the Appellant Dean Gillman & Thompson for the Respondent
Hearing Date(s):	31 March 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 261 of 1992

Brisbane

Before The President
Mr Justice Pincus
Mr Justice Shepherdson

[Jenkin v. Dalrymple Shire Council]

BETWEEN:

COLIN NORMAN JENKIN

(Plaintiff) Appellant

- and -

DALRYMPLE SHIRE COUNCIL

(Defendant) Respondent

REASONS FOR JUDGMENT - THE PRESIDENT

Judgment delivered 23/03/93

This is an appeal against a judgment given in the Trial

Division on 26 November 1992. The trial judge assessed the appellant's damages at $966,688.84 but dismissed his action with costs, including reserved costs, to be taxed. By his appeal, the appellant seeks judgment for the amount of the damages assessed, with taxed costs, including reserved costs, of and incidental to the action and this appeal.

There is little, if any, dispute by either party with

the primary facts found by the trial judge, and it is
convenient to set out what he said so far as presently

material.

"The plaintiff is a 48 year old man who sues for
damages in relation to injuries he suffered on 20
October 1986 in the course of his employment by the
defendant. The plaintiff was then employed as a plant
operator. He was injured while travelling from Charters
Towers to Greenvale in a Daihatsu twin cab motor truck.
At the time, the plaintiff weighed between 110 and 128
kg and he was 5 foot 11 tall. He travelled a
substantial distance to Greenvale in the back seat of
the vehicle. ... . I accept the plaintiff's evidence
that because of his large bulk, the space available to
him in the rear of the cabin truck was very confined.
He had to skew his feet sideways, for example, and
there was a minimal space between the top of his head
and the roof of the truck. The roof was not padded.
The seat ... was not substantially padded either and
was defectively clipped to the body, so that after a
time, it moved horizontally. When the plaintiff was
positioned on this seat, there was, beneath his body,
but separated from him by the seat, a metal strut or
brace intended to hold up the seat.
There was some difference between the witnesses as to
the state of the road. ... . I am satisfied that
although the defendant did do its best to maintain the
road regularly, and specifically with relation to
potholes, there were at this time quite a lot of
potholes, corrugations and eroded shoulders, such that
driving along it was not a particularly comfortable

experience for the traveller.

The plaintiff's case is that during the journey, he
suffered disruption of a lumbosacral disc and a
fracture of the coccyx. He attributes the injuries to
the bumpy nature of the trip. A mechanical engineer,
Mr Kahler, explained how that might occur. ... .... . I
accept that the plaintiff did sustain those injuries
during that trip as a result of jarring of the spine
flowing from the corrugated, uneven nature of the road

surface.

The plaintiff's pleaded case first alleges that the
defendant was negligent in requiring him to travel in a
vehicle which exposed him to a risk of injury because
of his size and the trip to be undertaken. The
defendant did "require" the plaintiff to make the trip
in that vehicle in that regard. I accept the
plaintiff's evidence that before the trip, he
complained to his foreman, Mr Adeville, about having to
sit in the back seat, to which Mr Adeville responded

that it was the only way that he would get to work.

Was it then negligent to require this plaintiff to
travel to Greenvale in that particular vehicle ? I
observe at once that the vehicle was used quite
popularly by local authorities at the time and was
built to an Australian Standard. I also note that
there is no ground for concluding that insecurity of
the seat base contributed to any injury. Mr Kahler
also confirmed that with ordinary use on a bitumen
road, being in this vehicle should have involved no
real risk of injury to the plaintiff. The question
which then emerges is whether there was a reasonably
foreseeable risk of injury arising from use of the
vehicle, with the plaintiff in it, along this
particular section of rutted highway."
His Honour did not immediately consider the question

which he had identified but went on to reject an alternate
basis of the appellant's claim, namely, that his injuries
had been caused by the negligent driving of the truck by the
respondent's employee. In the course of doing so, reference
was made to passages in the appellant's evidence which
emphasised the extreme bumpiness of the trip, that as the
driver "tried to miss one ... he would hit another one", and
that the appellant "was bouncing up and down and moving

backwards and forwards in the seat."

The judgment continued:
"The question then remains whether the defendant was
negligent in requiring a man of the Plaintiff's bulk to
travel that substantial distance over a comparatively
rough road in the cramped rear compartment even though,
as I have found, Mr Adeville drove the vehicle with
reasonable care. In this regard, it is relevant to note
previous complaints to the defendant about this type of
vehicle. I accept that three persons other than the
plaintiff had previously complained about having to
travel in the rear of the vehicle. I accept Mr
Hegarty's evidence that before 20 October 1986, he had

told Mr Adeville that he would not travel in the back.

Mr Perkins, a foreman with a bad back, had told Mr

Hegarty that he would not ride in a Daihatsu twin cab,
and he was given a special vehicle. Another foreman,
Mr Jackson, had refused to ride in the rear of the
vehicle. There was clearly some opposition to riding in
the rear of the vehicle, and the defendant should be
taken to have been aware of that. But on the evidence
before me, the complaints had not specified a perceived
risk of injury. There is no reasonable ground for

reading them as going beyond perceived discomfort.

There is no evidence that the defendant had notice of
any prior back problem in the plaintiff. The
plaintiff's own evidence was that prior to this
accident he was healthy and active, despite his size.
That is how the defendant would have regarded him. The
plaintiff had previously driven heavy plant for the
defendant in rough conditions without apparent
difficulty. I consider that in terms of reasonable
foreseeability, the defendant should, at best for the
plaintiff, have foreseen that the plaintiff would have
had an uncomfortable trip, but that of course falls
short of what the plaintiff must establish to succeed

in establishing its case against the defendant.

In his analysis of the risk to a passenger in the
plaintiff's position, Mr Kahler depended on the results
of computerized testing. There is no suggestion that
as at October 1986 any possible risk was the subject of
literature which should have come to the defendant's
attention. That Mr Kahler needed to resort to
sophisticated computerised testing to confirm his views
is significant. There was no particular reason why the
defendant should have perceived a relevant risk here.
The defendant was using a standardised vehicle in
popular use within the State. Mr Kahler confirmed that
the plaintiff's size was not particularly significant
in assessing the risk. The defendant had no notice of
any previous back problem. Acknowledging then, as I
have found, that Mr Adeville drove in a reasonable
fashion, I should conclude that the plaintiff failed to
make out his case."
His Honour then proceeded to asses the appellant's

damages.

The argument for the appellant focused on the issue of

foreseeability, but of course it is insufficient for the
appellant to demonstrate that there was a foreseeable risk
of injury to him. It is convenient to take as a starting
point the well-known passage from the judgment of Mason J.
(with whom Stephen and Aickin JJ. agreed) in The Council of

the Shire of Wyong v. Shirt (1980) 146 CLR 40 at pp.47-48.:

"In essence its correctness depends upon a recognition
of the general proposition that foreseeability of the
risk of injury and the likelihood of that risk
occurring are two different images. I am of course
referring to foreseeability in the context of breach of
duty, the concept of foreseeability in connexion with
the existence of the duty of care involving a more

generalized enquiry.

A risk of injury which is quite unlikely to occur, such
as that which happened in Bolton v. Stone (42), may
nevertheless be plainly foreseeable. Consequently, when
we speak of a risk of injury as being "foreseeable" we
are not making any statement as to the probability or
improbability of its occurrence, save that we are
implicitly asserting that the risk is not one that is
far-fetched or fanciful. Although it is true to say
that in many cases the greater the degree of
probability of the occurrence of the risk the more
readily it will be perceived to be a risk, it certainly
does not follow that a risk which is unlikely to occur
is not foreseeable.

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of 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. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

The considerations to which I have referred indicate
that a risk of injury which is remote in the sense that
it is extremely unlikely to occur may nevertheless
constitute a foreseeable risk. A risk which is not far-
fetched or fanciful is real and therefore foreseeable.
But, as we have seen, the existence of a foreseeable
risk of injury does not in itself dispose of the
question of breach of duty. The magnitude of the risk
and its degree of probability remain to be considered
with other relevant factors."

The appellant's injuries were not caused by persistent

vibration but by impulsive shock loading to his coccyx and
spinal column, probably caused by the vehicle striking a
second pothole or rut before it had recovered from a
previous bump. The respondent relied heavily upon the
scarcity of published information dealing with injuries from
such a cause to persons travelling in vehicles. There was
also no direct evidence that the suspension of the vehicle
or the springing in its seat was deficient. On the other
hand, it is (and was) a reasonable inference from the
complaints which the respondent received that the vehicle
was uncomfortable and that its capacity to absorb, rather
than transmit, shocks when travelling over bumpy surfaces
was inadequate, and common sense and experience suggest that
transmitted road shocks can, at least in some circumstances,
cause more than mere discomfort to a person travelling in a

vehicle.

While I differ from that inference drawn by the trial

judge with diffidence, I have reached a contrary conclusion
in relation to the issue of foreseeability: Warren v.
Coombes (1979) 142 CLR 531. In my view, although there was
no evidence that injuries were sustained on other occasions,
it was reasonably foreseeable that the appellant might
suffer at least minor injury when he was required to travel
for a substantial distance over bumpy roads in a cramped
position in what was described by one of his fellow
employees as "... a very rough little vehicle". It is
sufficient to warrant such a finding that the appellant was
a very obese, middle-aged man who was forced to sit with his
legs askew in a very confined space with his head very close
to the metal top of the cabin of the vehicle, unable to
brace himself effectively and with little room to move or
change position in any direction. Other factors which might
be taken into account include the almost upright posture
which he was obliged to adopt, the lack of substantial
padding in the seat, and probably, the lack of a seatbelt
which fitted the appellant.

However, the severity of the appellant's injuries was

not foreseeable, and it is in the context of the relatively
minor injuries which were reasonably to be foreseen, perhaps
bruising or cuts or ligamentous damage, that the question

whether the respondent breached its duty of care falls to be

considered.

Perhaps because his primary efforts unsuccessfully

directed to attempting to establish that the driver of the
vehicle was negligent, there was no direct evidence that the
appellant would probably not have been injured if he had
been transported in the front seat of the vehicle or in
another available vehicle. Indeed there was no direct

evidence that another vehicle was available.

However, there is evidence which supports inferences

both that another, more suitable vehicle was probably
available and that the appellant would probably not have
been injured if he had travelled in the other vehicle. To
some degree, the latter conclusion is impliedly contained in
the respondent's assertion that injury to the appellant was
not foreseeable and is supported by the evidence that the
appellant had previously travelled over the road in
question in other vehicles of the respondent without injury
or, so far as the evidence goes, discomfort. Similarly,
there is sufficient to ground a conclusion that the
appellant would probably not have been injured if permitted
to travel in the front seat of the vehicle which was used.

The remaining issue is whether the respondent breached

its duty of care to the appellant by requiring him to travel
in the rear seat of the vehicle which was used rather than
allowing him to travel in the front seat or providing
another, more suitable vehicle. In favour of the respondent
on this issue is the fact that the severity of the
appellant's injuries was not to be expected and only
comparatively minor injuries were reasonably foreseeable.
On the other hand, all that due care demanded was the use of
another available vehicle or permitting the appellant to
have travelled in the front seat of the vehicle used, which
would not have involved the respondent in expense or
significant inconvenience. On balance, I am satisfied that

the respondent did breach its duty to the appellant,

Accordingly, the appeal should be allowed, and

judgment given for the appellant for the amount assessed
together with the taxed costs, including reserved costs, of
and incidental to the action and this appeal.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 261 of 1992

Brisbane

Before The President

Mr. Justice Pincus

Mr. Justice Shepherdson

[Jenkin v. Dalrymple Shire]

BETWEEN:

COLIN NORMAN JENKIN

(Plaintiff) Appellant

- and -

DALRYMPLE SHIRE COUNCIL

(Defendant) Respondent

JUDGMENT - PINCUS J.A.

Judgment delivered 23/04/1993

I have had the advantage of reading the separate reasons of the President and Shepherdson J, and note that His Honour The President sets out the facts found by the primary judge. It appears to me that the evidence suggested a number of possible bases on which a finding of negligence could have been made against the respondent. They included bad driving of the vehicle in question, failing to alter or maintain the rear passenger compartment of the vehicle so as to make it safer, requiring the appellant to travel over a rough road in that compartment and - the corollary of the point just mentioned - failing to arrange for the appellant to be carried in some other and safer vehicle. These allegations were all covered by the particulars of negligence in paragraph 7 of the statement of claim.

The judge rejected the allegation of bad driving and that was not challenged before us, so that we are left with contentions all of which depend on the propositions that the rear passenger compartment of the vehicle was in such a condition that there was a foreseeable risk of injury to the appellant; that, acting reasonably, the respondent should have taken steps to eliminate that risk; and that its failure to do so caused the injury.

As the President has pointed out, the trial judge was not prepared to find that there was a foreseeable risk of injury. de Jersey J. did not, therefore, need to go on to the next question, expressed in the Council of the Shire of Wyong v. Shirt (1980) 146 C.L.R. 40 at p.47 to be "what a reasonable man would do by way of response to the risk"; de Jersey J. would no doubt have held that there was no necessity to do anything, since he thought there was no foreseeable risk.

In my respectful opinion, since the acceptance (and frequent application) of the Wyong formulation of the test of foreseeable risk, answering the question whether there was such a risk does not advance the trial judge much, in a marginal case such as the present. The judge found that there was no such risk of injury and that the defendant "should, at best for the plaintiff, have foreseen that the plaintiff would have had an uncomfortable trip ...".

Extreme discomfort merges into injury; the cramped uncomfortable passenger driven a considerable distance on a rough road may, on careful later examination, be found to have signs or symptoms sufficient to warrant the use of the term "injury". It appears to me likely that his Honour had significant, rather than trivial, injury in mind when he made his finding.

In my respectful opinion, if none but a minor injury could have been expected to occur, then a finding of reasonable foreseeability helps the appellant's case but little. What the appellant had to show was that the magnitude of the risk was, in the whole circumstances, such as to require a reasonable employer to take alleviating action. The judge's view on that point, had he reached it, must have been adverse to the appellant and it is that question, in my opinion, on which the success or failure of the appeal must turn.

It was shown that the type of vehicle in which the appellant was travelling was in common use at the relevant date. It was said to be used by many statutory authorities including shire councils - "people of that nature that required vehicles to convey a number of workers to their place of employment". There was no evidence that any other person had suffered an injury of the present, or indeed any other, type as a result of any defect in the suspension or seating in a vehicle of the kind in question. The particular vehicle in which the appellant was injured had a defect in that the rear seat was not clipped in properly and could move backwards and forwards. However, there was nothing to suggest that this had a connection with the appellant's injury and it is not easy to see how it could have done; the injury was one of a kind which would, on the medical evidence, be caused by a direct force onto the area of the coccyx from below - "upwards through the body".

If one treats the defective clip then, as irrelevant, what the appellant had to prove was that the standard condition of this commonly used vehicle was such that to cause the appellant to ride a considerable distance on a fairly rough road in it, and more particularly in the rear compartment, was unreasonable. In the absence of evidence of a particular risk in doing so, that appears to me to have been a difficult task.

One special source of risk, as I understood the
appellant's argument, was said to be a metal brace forming
part of the sub-frame on which the rear seat cushion rested.
That brace was 16mm below the uppermost surface of the sub-
frame and when the appellant sat down, his weight compressed
the spring so that there was only 10mm clearance between
them and the brace. The engineer who gave evidence for the
appellant, Mr. Kahler, would have recommended that the brace
be lowered by a distance of some 50mm or more. The idea was
I think to reduce the risk that the brace would cause injury
to a passenger being bounced about on the seat.

One problem in the appellant's argument focusing upon the brace was that it was not that whether the brace had anything to do with the plaintiff's injury. Mr. Kahler, discussing the cause of the injury, "hypothesised" that with a certain sequence of road shocks, the seat cushion had deflected so that the brace had been contacted. More generally, Mr. Kahler expressed the opinion that "the damage is a consequence of bottoming out type phenomena in which impulsive loads are transmitted".

It is not clear whether the judge below, or indeed this Court, was specifically invited to find that the location of the brace was a cause of the injury - i.e. that the appellant was injured because his tail bone came down heavily on the strut during a violent vertical movement of the vehicle over a rut or pothole, the cushioning effect of the springs being absent because they were compressed onto the metal brace. To my mind, this hypothesis, to use Mr. Kahler's expression, tends to command acceptance as a fact, although it finds no direct support in the appellant's evidence. To cause the significant injury to the tailbone and disc above it, there must have been a considerable impact at the lower end of the spine.

The conclusion that the injury was sustained in that
way, if correct, does not necessarily assist the appellant.
There was no evidence other than that of Kahler directed to
the significance of the brace. No questions of the
respondent's witnesses suggested that the brace should have
been thought about. The evidence of the witnesses called by
the appellant to say that there were previous complaints
about the vehicle was not related to the brace. In the
circumstances, it would, in my opinion, have been difficult
for the trial judge to hold that anticipation of injury from
the brace, a standard feature of this standard vehicle,
should have caused or played any part in a decision to keep
people out of the rear passenger compartment when the
vehicle was travelling on rough roads. If the appeal is to
succeed, it must be, in my opinion, on a broader basis,
namely that travel in the rear compartment of the vehicle
should have seemed to the respondent to be so generally
fraught with risk as to make it reasonable to keep
passengers out of it on long trips on rough roads or, at
least to keep the appellant out of it in such conditions.

In support of that, there are findings that persons

other than the appellant had complained about the vehicle.
M.J. Hegarty, formerly employed by the respondent, said that
he heard a foreman, Dave Perkins, say that he was not going
to ride in one of "those vehicles" - apparently meaning the
Diahatsu dual cab utilities in one of which the appellant
was injured - and would rather resign than do so. However,
the force of that evidence is weakened by the absence of any
suggestion that it was the back compartment which was the
problem and by the fact that W.H. Jackson gave evidence that
Perkins' complaint was merely that there was insufficient
leg-room for him to drive the vehicle.

Hegarty also said that another foreman, one Jackson, said that he would never ride in the back of one of the Diahatsus and that "they were a rough so and so". Then Hegarty said that he had himself refused to ride in the back of the vehicles.

This evidence, however, did not take the appellant's case far, as it was hardly in contest that the back compartment was rather cramped, particularly for large men like the appellant. It seems difficult to hold that merely to have a large employee riding in a rather small vehicle compartment is necessarily negligent. The vehicles in common use in our community vary substantially in the amount of room available for passengers. One must add another ingredient to the case if the appellant is to succeed and the only one which appears to me to help is the suggestion which one finds in the evidence that the vehicle was "rough", being sprung hard so as to be able to take heavy loads.

When asked about that subject, M.J. Lester, the Queensland Service Manager of Diahatsu Australia, conceded, as I understand his evidence, that the vehicle has rather a hard suspension and is not built to roll through minor deviations as a family car would. He said, however, that a person in the driver's seat, or anywhere in the front seat is subjected to a lot more rise and fall from the suspension than one in the back seat, because the front axle is directly underneath the seat cushion of the front seat.

More important than Lester's evidence on the question of the "roughness" of the vehicle is the absence of any technical evidence to support the suggestion that the vehicle had any unusual quality in its suspension. The engineer, Kahler, did not suggest that and, the onus being on the appellant, the Court could hardly have been expected to make a finding that the suspension was in some way hazardous, without properly qualified evidence to that effect.

Mr. Griffin Q.C. for the respondent argued, and it appears to me correct, that there is reason to think that an accident of the kind which the appellant suffered is a most unusual one. Kahler had examined the literature and he did not suggest that he had found any evidence that accidents of this kind are to be expected. The judge was, in my opinion, entitled to consider the matter on the basis that the occurrence of a significant spinal injury to a person travelling in the appellant's circumstances is a quite unexpected event; the unlikelihood of its occurrence goes to the question whether failure to take steps to reduce the risk was unreasonable.

The last point to notice about the evidence is that at the trial there was very little said about the subject of the availability of more suitable transport for the appellant. G.E. Adeville, the foreman who drove the vehicle in which the appellant was injured, was asked this question by the plaintiff's counsel, concerning the plaintiff's position:

"Because it was the only way he could get to work, wasn't it, short of using his own motor vehicle?".

That is hardly consistent with its being the appellant's case that there were other, safer vehicles available at the time in question. The evidence was that the appellant usually went to work in a much bigger vehicle, a truck. He said that was comfortable, but there was no attempt to show that the truck was available at the time. The judge found the appellant had complained before he entered the vehicle;

what he objected to was sitting on the back seat. He did not then suggest that any other vehicle was available or should have been provided.

In the end, I am unable to hold that the appellant is entitled to have the judge's factual conclusion upset; it may well have depended partly on demeanour and impressions his Honour gained from hearing the witnesses. In essence, all that was proved was that the appellant was required to travel in rather an uncomfortable compartment of a vehicle, on a rough road, for a considerable distance; that is a situation in which people, in this country containing many such roads, commonly find themselves. The appellant was unfortunate enough to suffer a significant injury in some fashion while on that journey, but in my opinion the evidence does not demonstrate that the respondent is liable to compensate the appellant as for negligence.

I would dismiss the appeal with costs.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 261 of 1992
Brisbane
Before	The President Mr Justice Pincus Mr Justice Shepherdson

[Re: Jenkin & Dalrymple]

BETWEEN:

COLIN NORMAN JENKIN

(Plaintiff) Appellant

- and -

DALRYMPLE SHIRE COUNCIL

(Defendant) Respondent

JUDGMENT - SHEPHERDSON J.

Delivered the 23rd day of April 1993

I have had the benefit of reading in draft the separate reasons for judgment prepared by the President and Pincus J.A. I agree with Pincus J.A. that the appeal should be dismissed and for the reasons which he gives. I would however add the following comments.

First, although the relevant facts are set out in the judgment of the President I would, to complete the picture, add one further fact not mentioned so far but not in issue and that is that the rear seat of the twin cab truck was occupied by the plaintiff and an esky the position of which article contributed to the plaintiff being in a cramped rear compartment.

Secondly, when the following principles are applied to the facts and the evidence before the learned trial judge it is apparent that the unfortunate plaintiff's appeal must fail.

(a)  The relevant duty owed by the respondent as employer to the appellant as employee was "to take reasonable care to avoid exposing the employees to unnecessary risks of injury". (Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18 at 25).

(b)  The elements to be proved by a successful plaintiff in a master and servant negligence action were stated by Mason J. (as he then was) in Raimondo v. State of South Australia (1979) 23 A.L.R. 513 at p. 518:

“... the employer will not be liable unless it appears that he has failed to take measures, or adopt means, which were reasonably open to him and which would have eliminated or significantly reduced the element of danger (Neill v. N.S.W. Fresh Food & Ice Pty Ltd [1963] A.L.R. 258; 108 C.L.R. 362 at 369; Vozza v. Tooth & Co. Ltd [1965] A.L.R. 196; 112 C.L.R. 316 at 319. And it has been held that (a) the degree of risk of an accident occurring; (b) the degree of injury likely to result from such an accident; and (c) the nature and extent of the remedial action suggested to be taken are all elements to be considered in deciding whether the employer is in breach of a duty to take reasonable care (Morris v. West Hartlepool Steam Navigation Co. Ltd [1956] A.C. 552 at 579; [1956] 1 All E.R. 385; Foufoulas v. Strang Pty Ltd (1970) 123 C.L.R. 168 at 172)".

(c)  An employer is not an insurer of his employees against danger (Turner v. State of South Australia (1982) 42 A.L.R. 669 at p. 670 per Gibbs C.J.).

(d) Hindsight cannot be used by the tribunal of fact in
deciding whether the appellant was exposed to a risk of
injury which by the exercise of reasonable care might
have
been foreseen and avoided. As Taylor J. said in Rae v.
The Broken Hill Pty Co. Ltd (1957) 97 C.L.R. 419 at p.
430:-

"But in pursuing such an inquiry it is a simple matter to permit hindsight to take the place of foresight and to see, after the occurrence of an accident, that appropriate safeguards might have been provided which would have ensured safety. But, as has been said so many times, this is a completely erroneous approach to the problem."

In the present case the parties appear to have focused, both at trial and in this Court, on the aspect of foreseeability of risk of injury in the context of an alleged breach of duty by an employer to an employee. The leading case on foreseeability of The Council of the Shire of Wyong v. Shirt and Others (1980) 146 C.L.R. 40. It appears to be a reasonable inference from the evidence before the learned trial judge that if the appellant were seated so that his spine was vertical above the metal strut or brace inside the seat cushion, his low back injuries may well have been caused when the appellant, a particularly large passenger, was being bounced about on the seat. Pincus J.A. has canvassed the relevant aspects of the evidence on the mechanics of cause of injury. The particular type of vehicle in which the appellant was riding when injured was, at the relevant date, in common use by organisations such as the respondent Council. There was a lack of evidence that the respondent knew of any injury caused by any defect in the seating or suspension of that type of vehicle and it seems to me the above inference as to a probable cause of the plaintiff's injury can only be drawn by the use of hindsight, which is impermissible. I recognise that the duty of care owed by an employer to its employees is owed to each individual employee taking into account each employee's disabilities or particular peculiarities known to the employer (Paris v. Stepney Borough Council [1951] A.C. 367).

I would add that even if the appellant were able to prove that the respondent exposed him to foreseeable risk of the type of injury which he suffered, the state of the evidence is such that the plaintiff failed to prove that the respondent unreasonably failed to take a measure namely provide another more suitable vehicle in which to transport this large man, which measure was reasonably open to it. The evidence on this aspect is sketchy to say the least. It was not clear in the evidence whether another more suitable vehicle i.e. more suitable to accommodate this large man and significantly reduce if not eliminate the risk of the type of injury suffered, was readily available for the particular journey on which he and his fellow employees were about to set off. Keith Francis Matthews the respondent's head maintenance foreman, when being cross-examined about the confined space in the rear cabin of the Daihatsu volunteered that "up to 2 or 3 vehicles are going that way" presumably meaning, travelling on the same trip as that when the appellant was injured. No details appear about any of these vehicles and the use of any one of them as remedial of the foreseeable risk. In my view the appellant's case also failed to surmount this hurdle as did the unfortunate plaintiff in Neill v. N.S.W. Fresh Food & Ice Pty Ltd (supra).