Lachley Meats Pty Ltd v Sinfield

NEW SOUTH WALES COURT OF APPEAL

CITATION: Lachley Meats Pty Ltd v Sinfield [2001] NSWCA 340

FILE NUMBER(S):
40830/00

HEARING DATE(S): 25 September 2001

JUDGMENT DATE: 02/10/2001

PARTIES:
Lachley Meats Pty Ltd
Ashley James Sinfield

JUDGMENT OF: Priestley JA Davies AJA Sperling J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3/1998

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

COUNSEL:
Mr J Drummond for the Appellant
Mr R McIlwaine SC with Mr P Doherty for the Respondent

SOLICITORS:
Abbott Tout Solicitors for the Appellant
Palmers Solicitors for the Respondent

CATCHWORDS:
Negligence
employer - employee
breach of duty in failure to warn and instruct re safe lifting practice and/or unsafe system of work
foreseeably in relation to contributory negligence
no question of principle
ND

LEGISLATION CITED:

DECISION:
(1) Extend time for appeal
(2) Appeal dismissed
(3) Cross-appeal allowed in part
(4) Vary the determination of the District Court by substituting a verdict for $975,954.68 and judgment for $804,362.85
(5) The appellant to pay the respondent’s costs of the appeal and of the cross-appeal.

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
PRIESTLEY JA
DAVIES AJA
SPERLING J
Tuesday, 2 October 2001
40830/00 Lachley Meats Pty Ltd v Ashley James Sinfield
Judgment

PRIESTLEY JA: I agree with Sperling J.
DAVIES AJA: I agree with Sperling J. The appellant failed to provide and maintain a safe system of work. The respondent was required to lift manually a bulky and weighty stainless steel skirt. One of the ways of undertaking this task was to lean over other equipment. A photograph of an employee doing so shows that the worker’s position would be awkward and his back twisted. This was unsafe. The appellant’s foreman failed to take reasonable steps to ensure that the lift was performed in a safe manner.
SPERLING J:
Liability
The plaintiff, Ashley James Sinfield, was employed by the defendant, Lachley Meats, at the defendant’s abattoir. It was part of the plaintiff’s duties to set up the boning room for the day’s work.
On 1 March 1995, that involved lifting one end of a stainless steel component, referred to as a skirt, in order to place the skirt in its correct position. This was not an unusual task. The skirt weighed 32 kilograms. The lift of one end involved a load of 16 kilograms.
The plaintiff took up a position on a platform above the skirt and reached down to take the load. The position was awkward. It involved the plaintiff lifting with his back twisted.
There were two other ways of performing the task which would not have involved lifting with a twisted back. They were lifting from below and lifting from underneath.
The trial judge found that the plaintiff received injury as a result of negligence on the part of the defendant. On appeal, the defendant challenges that determination.
The trial judge accepted the opinion of Dr Morgan that there was injury both to the thoracic and the lumbar spine, and that this had occurred because of the plaintiff’s twisted posture. The evidence on both these points was by no means all one way, but the trial judge’s preference for Dr Morgan’s opinion is not open to challenge.
Mr O’Neill, the plaintiff’s foreman, had observed workers lifting skirts in the same way as the plaintiff did on this occasion. But, as the trial judge found the facts, neither the plaintiff nor the defendant knew of the risk involved. The question was then whether the defendant ought reasonably to have foreseen a risk of injury arising from that way of doing the work and, if so, whether a failure by the defendant to take reasonable precautions to avoid the risk caused or materially contributed to the plaintiff’s injury.
The report of Dr N Adams, ergonomist, was tendered in the plaintiff’s case without objection. The following paragraphs were not challenged in cross examination:
The relationships between the performance of any physically demanding lifting or manual handling task and musculo-skeletal injury, especially back injury, are relationships which have been well established. Over the last several decades there has been an increasing flow of information and advice to employers about this kind of injury causation.
. . . . .
Virtually every set of recommendations or criteria relating to the performance of lifting and other manual handling tasks acknowledges that the risk of injury to the spine is substantially increased as the distance of the load is increased and if the back is bent or twisted to the side as a lifting effort is undertaken.
His Honour made the following observations in relation to certain of the publications referred to in Dr Adams’ report:
And I just refer by way of example to the New South Wales Occupational Health and Safety Legislation which in turn requires the standards to be met as set down by the National Occupational Health and Safety Commission under the relevant Commonwealth Legislation. That in turn requires in the case of matters involving manual handling, a risk assessment to be undertaken in consultation with employees who are required to carry out manual handling and that assessment is to take account of a number of factors including the following: workplace and workstation layout, working posture and position, weights and forces. There is then also by way of example a reference to manual handling in Australian Standard 1470 in the following terms: manual handling injuries are sustained most frequently during the lifting or setting down of loads but they also occur in the carrying, stacking, pushing, pulling, rolling, sliding and wheeling of loads in the operation of levers and other mechanical devices and in the maintenance of unbalanced postures while performing these tasks. It goes on then to list a number of aggravating factors to include loss of balance while lifting or poor personal posture, use of a jerking or twisting, lifting motion, restricted room to manoeuvre or awkward positions and under the heading of prevention, and [sic] provides where mechanical handling equipment or assistance cannot be provided, injuries arising from manual handling may be reduced by a; designing the task, b; proper allocation of tasks and c; instruction and training in safe working procedures. The most effective means of preventing the injury is to design tasks to reduce the stresses imposed by manual handling. In this respect, advise [sic] should be sought, from persons trained in ergonomics.
There was a high degree of consensus in relation to these matters. The following are extracts from evidence adduced in cross examination from the defendant’s ergonomist, Mr Simpson:
Q.           Another very important part of Occupational Health
& Safety is proper training of employees, isn’t it?
A.           Yes.
Q.           And providing employees with proper instructions?
A.           Yes.
.  .              .              .              .
Q.           You would expect a competent employer as well, wouldn’t you, to review the workplace from time to time in order to ensure that the workplace was safe?
A.           Yes
Q.           And to have in place a proper program of training for employees?
A.           Yes.
Q.           That would be particularly so, would it not, in your view, if the employees were involved in manual handling tasks?
A.           Not particularly, but it’s certainly a very significant activity and that requires certain training.
.  .              .              .              .
Q.           All these illustrations on page 16 and 17 have the back straight?
A.           Yes. That’s one of the basic, well the cornerstones of safe lifting techniques. The back can be bend– sorry, it can be tilted forward, but it must remain straight.
Q.           Yes. And that is very important, isn’t it?
A.           Yes.
Q.           The reason it’s important is because the risk of injury to the back in manual lifting tasks is increased if the back is twisted?
A.           Yes.
His Honour made the following findings:
It was in the end much more a matter of ordinary observation, that is comparing two alternatives which in one case involved no bending, in the other relatively minimal, with one which involved taking up an awkward position that involved both twisting and stretching of the body. It did not require ergonomic measurement to demonstrate to any observer that the last of those three was the more likely to cause a risk of injury to the person undertaking a lift. And certainly one would have expected that if there had been any system of training of the kind which was totally absent in this case, such training would have involved explanation of the kind of strains which might be placed on a person’s back if a person was forced to undertake a lift involving the twisting of the body as distinct from one which involved either no or minimal bending.
His Honour concluded:
The defendant did not, it is my conclusion, undertake its training and instruction responsibilities sufficiently seriously.
His Honour went on to say:
[E]ven though it may be said that the particular method of injury in this case was not one which might have been expected in precisely the way in which it occurred, it certainly can be said that the risk of back injury in the course of manual lifting was a risk of a general kind that had been widely publicised and was the subject of statutory obligations and other standards of which the defendant should have been aware. The defendant was therefore in a far better position that then plaintiff, unlike the defendant in Raimondo, to have undertaken both appropriate instruction and specific warning with regard to the alternative means of attaching the skirt to the boning stand in this case. In such circumstances therefore and because of those differences between those two cases, I am satisfied that the defendant was guilty of a breach of duty towards the plaintiff to provide a safe system of work.

(His Honour’s reference to “Raimondo”, above, was a reference to the case of Raimondo v The State of South Australia (1978) 23 ALR 513.)

If the plaintiff had received the appropriate warning and instruction concerning safe lifting practice, including a warning to avoid lifting with a twisted back or in an awkward position, it is more likely than not that he would have heeded the warning and used one of the alternative methods for placing the skirt which were available to him. He would not then have received this injury.
More particularly, if the defendant had instructed the plaintiff to adopt one of the safer ways of replacing the skirts, it is likely that the plaintiff would have followed that instruction and the injury would, similarly, have been avoided.
The trial judge’s conclusion that the defendant was negligent in these respects was amply justified on the evidence and on the facts as he found them. It is a conclusion with which I agree.
The appeal by the defendant against the trial judge’s finding of liability should accordingly be dismissed.
Contributory Negligence
The trial judge found the plaintiff guilty of contributory negligence and reduced the damages by 20 per cent.
There is an appeal and a cross appeal in relation to this finding, the defendant contending for a greater apportionment against the plaintiff, and the plaintiff contending for reversal of the finding of contributory negligence altogether.
In my view, the trial judge’s finding of contributory negligence cannot be sustained.
Foreseeability of injury is as much an element of contributory negligence as it is of negligence. In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, Mason, Wilson & Dawson JJ said, in their joint judgment, at 310:
A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him responsible in part for the damage…
The defendant asserts, on appeal, that his Honour found that the plaintiff actually knew of the risk. That, however, is a misreading of his Honour’s judgment. The reference is to the following passage:
Mr Drummond submitted that the plaintiff had been guilty of very substantial contributory negligence in a number of respects. He was aware for example as much as his employer was aware that the lifting of the skirt from the slicing table was a safer method than using the boning stand.

In the second sentence of that passage, his Honour was not making a finding but was continuing to paraphrase Mr Drummond’s submissions. There is no inconsistency with the earlier finding, to which I referred, namely, that the plaintiff and the defendant were both unaware of the danger involved in the lift.

So there was no finding that the plaintiff actually knew of the risk, and there was no evidence that he did. Was the risk nonetheless reasonably foreseeable to him? I would not find that it was. In particular, I would not find that, without the benefit of instruction, an unskilled workman ought reasonably to foresee a risk of injury arising from lifting in an awkward or twisted position. That contrasts with an employer, who is under a duty to take reasonable steps to be informed of safe working practices and to give such warnings and instruction to employees as is reasonably required to protect them from foreseeable risk of injury.
Accordingly, the finding of contributory negligence should be reversed. The plaintiff’s cross appeal should be allowed in that regard, and the defendant’s appeal against the apportionment necessarily fails.
Damages
The defendant appeals against damages on the ground that the trial judge erred in finding that the lifting episode caused injury to the plaintiff’s lumbar spine as well as to the thoracic spine.
As I have said, in making that finding, his Honour accepted the opinion of Dr Morgan in preference to other expert evidence. It was his Honour’s province to do so. The finding by the trial judge that the plaintiff’s lumbar spine problems were caused by the lifting episode is unimpeachable.
The defendant’s appeal fails in this regard.
In his cross appeal, the plaintiff challenges the trial judge’s finding that the plaintiff’s earning capacity was reduced by 70 per cent rather than having been totally extinguished.
There was evidence to support the trial judge’s approach. Dr J F Davis, a specialist in occupational medicine qualified by the defendant, said, in a report dated 25 June 1999 and tendered in evidence, that a pain depression cycle significantly affected the plaintiff’s ability to work, that the plaintiff should be treated for his psychological status, that the psychological condition had a connection with the failure of medical and paramedical personnel to relieve the plaintiff’s symptoms, and that attempts at rehabilitation should be directed to a programme of return to work in a semi-sedentary position not involving strain on the back. The implication was that, with appropriate management, there were good prospects that the plaintiff would be able to return to work, albeit with limitations.
The impugned finding was open to the trial judge on the evidence and is unimpeachable.
The plaintiff’s cross appeal fails in this regard.
Conclusion
Counsel were asked to formulate the result if the above determinations were made. They have agreed on the arithmetic to assist the court without, of course, conceding the result against the interests of their respective clients.
The plaintiff has successfully resisted the defendant’s appeal on liability and has succeeded on the main part of the cross appeal in displacing the finding of contributory negligence. The defendant should pay the plaintiff’s costs of the appeal and of the cross appeal.
I propose the following orders.
(1)           Extend time for appeal;
(2)           Appeal dismissed;
(3)           Cross-appeal allowed in part;
(4)           Vary the determination of the District Court by substituting a verdict for $975,954.68 and judgment for $804,362.85;
(5)           The appellant to pay the respondent’s costs of the appeal and of the cross-appeal.

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LAST UPDATED: 02/10/2001

[2001] NSWCA 340

2 October 2001

Key Legal Topics

Areas of Law

Negligence & Tort

Civil Procedure

Legal Concepts

Appeal

Breach

Damages

Negligence

Costs