Liftronic Pty Limited v Unver

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S102 of 2000

B e t w e e n -
LIFTRONIC PTY LIMITED
Appellant
and
EROL UNVER
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 OCTOBER 2000, AT 2.28 PM

MR B.M.J. TOOMEY, QC: May it please, your Honours, I appear with my learned friend, MR P.J. MOONEY, for the appellant. (instructed by Vandervords)

MR B.J. GROSS, QC: May it please the Court, I appear with my learned friends, MR H.N. KELLY and MS S. THODE, for the respondent. (instructed by Gibsons)

GLEESON CJ: Yes, Mr Toomey.

MR TOOMEY: Unlike the cases your Honours have been hearing, this case is one in which the law is not the subject of controversy at all.

GLEESON CJ: That is a very challenging thing to say to this Court.

MR TOOMEY: I hope your Honours will not construe it as an invitation.

KIRBY J: The uncontroversial principle though is often stated in cases where the Court has proceeded to find an exception to it.

MR TOOMEY: I think your Honours might have some difficulty with this case. The facts of the case are that in a jury trial before Judge Dodd in the District Court a jury properly instructed on contributory negligence, as is conceded by the respondent in this Court, returned a verdict for the plaintiff with a finding of 60 per cent contributory negligence. In the Court of Appeal that court by a majority with the learned President and Acting Justice Brownie, comprising the majority, substituted for the finding of 60 per cent contributory negligence, a finding of 20 per cent contributory negligence, on the basis that a finding of 60 per cent was perverse.

KIRBY J: Do you concede that that course was available in a jury trial? I assume it is, but I do not know.

MR TOOMEY: It is available, your Honours, but only in circumstances which we say could not have been said to be available in this case.

Can I take your Honours straight to the statement of the law which must be taken to govern the case. In Calin v Greater Union Organisation 173 CLR 33, this Court said:

(3) A court of appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is one that reasonable jurors could not reach.

That, as we understand it, is the unquestioned law in Australia.

KIRBY J: That is ordering a retrial.

MR TOOMEY: Yes.

KIRBY J: What is the source of the power to substitute a different opinion on the quantum or percentage of their contributory negligence?

MR TOOMEY: Well, there is power in the Supreme Court Act, your Honour, and there is the common law power, but I do not apprehend ‑ ‑ ‑

McHUGH J: There was no common law power for an appellate judge…..to substitute its own view of damages for the jury, it is just statutory ‑ ‑ ‑

MR TOOMEY: No, that is true, it would always have been a new trial, yes. If it was believed that the conclusion had to be unreasonable, there would be a new trial, with respect.

McHUGH J: Yes.

KIRBY J: I asked the questions because in my 13 years in the Court of Appeal I can remember many times cases coming up concerning judge decisions. I do not ever remember having a case where it was a matter of substituting the opinion of the Court of Appeal for a jury decision, but there may be no difference of principle. I just want to know what the ‑ ‑ ‑

McHUGH J: There is a specific power which enables you to do it in jury trials – I cannot think, it might be ‑ ‑ ‑

MR TOOMEY: Yes, there is, your Honours, I am ashamed to confess I did not turn my mind to it, because it has in my experience been done habitually in the Court of Appeal.

KIRBY J: In jury cases?

MR TOOMEY: Yes, your Honour.

GLEESON CJ: The Rapallo Cinema must have been a filthy place if it had banana skins in the aisle.

MR TOOMEY: Well, it was a bit like the snail in Donoghue v Stevenson, and although no one says it was not there, apparently the jury had their doubts because, of course, there was a verdict for the defendant.

KIRBY J: I sat in Calin.

MR TOOMEY: You did, your Honour, you presided in the Court of Appeal.

KIRBY J: Did we disturb the jury’s verdict?

MR TOOMEY: No, the jury’s verdict was undisturbed in the Court of Appeal and in this Court in Calin.

Can I tell your Honours what the facts are. Mr Unver was a 32‑year‑old man described as a lift engineer, although I do not believe that he had academic qualifications, but he had experience working as a lift mechanic/engineer. He was working for the defendant which had a contract to build some lifts in Sydney Hospital. He was working with an apprentice named Dawes. Part of their job was to clean and paint some girders which were to be affixed in the lift‑well so that the lift could run on them, very strong and heavy girders. This one, the one in question, was five metres long and the expert evidence was that it weighed about 111 kilograms. The plaintiff, the respondent here, deposed that he had been given no instructions how to do it - he was, in effect, left to his own devices - and that the system which was adopted was he and the apprentice Dawes were to pick up these 111 kilogram girders, one at each end, lift it from ground level to a height of two feet or more above the ground.

They had, said the plaintiff, no mechanical devices or help, and as I said, no instruction. In doing that he bent to do it. In the course of doing that he suffered a very serious injury to his back and there was no dispute that if he were to recover he was entitled to large damages. The plaintiff also denied that he had ever been told that he should not lift with a bent back and also denied that any equipment had been given to him to use in the lifting.

Dawes, the apprentice, was called. Dawes said, “We were given precise instructions by the foreman, Troy Carson, as to what to do. We were given a lifting hook”. There is a photograph of one in the appeal book, I regret not a very good reproduction, but it is at page 68, I think. Your Honours will see it is a bent piece of reinforcing steel with a transverse grip at the top of it.

Dawes said, “Each of us was given one of those”, contrary to what Unver said, “and, together, we were given instructions by the foreman that we were to lift using the lifting hooks. We were to insert them in holes for that purpose in the top of the steel girder. We were to lift them bending our knees and not our back a couple of inches from the ground and place them on dunnage, timber dunnage, on the floor. We were then to bend, kneel or however, to paint and clean them in that position on the timber”.

“I was present”, said Dawes, “when Unver was told by – Mr Unver, the plaintiff, was told by the foreman that he must not lift with his back bent. He must bend his knees”. Dawes said, “We used the system that the foreman told us to use”, although it is not precise, it appears for a day, perhaps two days. “Then Mr Unver at 8.30 on the morning of 20 February 95 when he was injured said that he was tired of doing this because it meant that the girder was on the dunnage only a couple of inches above the floor and it was awkward and uncomfortable to lean down and paint it and clean it”.

So the plaintiff told Dawes, the apprentice, to get a thing described as a stillage or scaffold, which was a little wooden platform a couple of feet above the ground. That was brought over and they then adopted, at the plaintiff’s instigation, the method of lifting it by hand from the ground, which necessarily meant that they had to bend to do so because they could not use the lifting hooks to lift it two feet above the ground, and in the course of doing that, within five to 10 minutes of adopting that system, the plaintiff injured his back while bending, while lifting.

Now, those were the competing sets of facts before the jury. As was conceded by the respondent here, the appellant in the Court of Appeal, the jury must be taken to have accepted the evidence of Dawes rather than the evidence of the plaintiff. In those circumstances, the appellant here says, as was said in the Court of Appeal, how could it possibly be said that it was not open to the jury to find that there was contributory negligence to the extent of 60 per cent? It was not a matter for the Court of Appeal. It was a matter for the jury. The only basis upon which the Court of Appeal could possibly interfere with the finding was, as I say, the basis set out in Calin, mutatis mutandis.

There was expert evidence before the court, which I could perhaps shortly take your Honours to, from a Mr Simpson, a consulting engineer. At appeal book 54, Mr Simpson was being examined by Mr Kelly, who appeared at the trial for the plaintiff, and at line 33 he asked him:

Well I’m asking you to assume that as part of the system of work the workers are required to lift the rail, that is two of them, in a lift, a very short distance obviously, but to lift it onto the beam, is there any real difference as far as the lifting as it effects the plaintiff or any one else doing this work in lifting it that short distance, lifting it off the ground or lifting it a greater distance onto scaffolding as far as the strain it places upon the lumbar spine?
A. For all practical purposes, none, no difference.

That, of course, your Honours, assumes that both are done manually. As appears from page 55 onwards, Mr Simpson had not been asked to consider the question from the basis upon which the defendant said, and Dawes had deposed, had been the system, that is using ‑ ‑ ‑

McHUGH J: But the system had nothing to do with it. That is one of the things I cannot understand about the summing up or the way the case has been conducted. The plaintiff never alleged that he was injured as a result of using this system. So, if you were negligent, it must have been that, in some way, the defendant failed to foresee that the plaintiff would adopt a different system. That case never seems to have been put to the jury.

MR TOOMEY: No, I think that is right, your Honour. But may I say this, reading the plaintiff’s evidence, I think what was said was that – and the evidence I have just read to your Honours from Mr Simpson – the negligence relied upon was having to lift the girder.

McHUGH J: That cannot be negligence.

MR TOOMEY: With respect, if, as was maintained by the plaintiff, the weight was too great, and Mr Simpson said it was too great even using the lifting hook ‑ ‑ ‑

KIRBY J: You do not contest here that there was negligence to go to the jury?

MR TOOMEY: No.

KIRBY J: If you choose to use your employees in the manner of an ancient Pharaoh building the pyramids, in this day and age ‑ ‑ ‑

MR TOOMEY: Did they not use lifting hooks, your Honour?

KIRBY J: In this day and age where we know human beings’ backs are vulnerable as the human species was not meant to stand upright. They are very vulnerable. If you choose to use them in this way, why was it not open to the Court of Appeal to say, “Well, the fundamental flaw here was having this pseudo system of using employees in this way, and that to find in such a system that the fact that occasionally an employee might, trying to pursue your interest, the employer’s interest, expose himself to a greater risk; that it is perverse to find that in those circumstances the employee has to wear 60 per cent of the burden of it”?

MR TOOMEY: If I could just take your Honours to the rest of Mr Simpson’s evidence, it, I hope, contains the answer to your Honour’s question.

KIRBY J: I hope so.

MR TOOMEY: So do I, your Honour. The cross-examination starts at 55, 21:

Q. Mr Simpson, when you were asked to prepare a report and give evidence in this matter, the fundamental presumption or instructions you were told to assume was that Mr Unver had been required to lift this rail from either the ground or in a position near the ground up to a level just slightly lower than this bar table?
A. Yes.
Q. You had never been told, had you, that he may only have been required to move the rail, again from ground level, to a position close to ground level as is shown in that photograph you’ve seen?
A. That’s correct.
Q. First time that was ever proposed to you was when Mr Kelly asked you those questions yesterday and today?
A. Yes.
Q. And it’s probably easier to say, isn’t it, that the lift from ground level to a height such as the bar table is criticised by you because of the weight of the object, amongst other things?
A. Yes.
Q. The need to bend and place stress on the lower back?
A. Yes.
Q. And it’s the activity of bending, if the object has to be lifted from the ground, it’s the activity of bending which really causes, as you understand it, significant stress on the low back?
A. It magnifies the stress, yes.
Q. So that if a device, such as what you’ve been saying, if hooks had been provided, and I accept Mr Simpson you say that a number of people should have been deployed to use the hooks, but the idea of providing a hook so that the man can stand close to upright and that way there’s little stress placed on the lumbar spine?
A. Yes.
Q. And that’s a very satisfactory way, isn’t it, of reducing the risk of injury to the lower back?
A. Yes.
Q. And hooks, I take it, as you understand the rails, they’re got eyes in them along their length which hooks can be placed into?
A. Yes.
Q. Would you have a look at this photograph –

and he takes them to the photograph I have shown your Honours –

when you say the use of hooks, hooks similar to that?
A. It’s not what I had in mind but it would probably serve a very similar purpose.
…..if, for instance Mr Simpson, the plaintiff was simply required to move the beam from a near ground height by placing a hook in it and moving it a short distance onto the timbers, that activity, if the hooks had been used, probably would have required him not to have bend or crouch down anywhere near as much as if he had to use his hands?
A. That’s correct.
Q. And it’s easy to say the fact that he didn’t have to bend or arch his back in any way, obviously the activity and use of the hooks, if it had been used by him would have placed far less strain on his lower back?
A. Yes.
Q. And, of course, far less risk of injury to lower back?
A. Yes.
Q. And it’s really, I mean the real thrust of your criticism of the work system, is it not, is the requiring of him to have to bend down with his hands and pick up a rail off the ground, that’s a real critical aspect of the physical work he was required to perform?
A. That and the ultimate weight.

Then on page 57, at line 10:

Q. But, Mr Simpson, I know that there may be aspects or criticism of this system of work but if he and a co-worker were given a hook and told that they could simply move it a short distance, two metres, or just drag along the ground and place it on the timber beams, keep their backs straight, that sort of work activity carries with it a far less risk of injury than what you were initially asked to assume, doesn't’ it?
A. Yes.

And may I interpolate that what he was asked to assume was the method which the plaintiff had mandated himself, and which caused his injury:

Q. And once it’s been painted.....they can either kneel or paint it or do whatever they’d want, they’re not carrying any particular weights as they clean and paint it, it’s just in a resting position, that’s what you understand?
A. Yes.
Q. Once that’s done again they just apply the hook to the beam, they can drag or move it again just a short distance, just not two metres away, again that activity carries with it a far less risk of injury to what you were asked to originally assume, doesn’t it?
A. Certainly less, yes.

KIRBY J: That is a guarded answer, “Certainly less”.

MR TOOMEY: Well, your Honour, the only question was whether the jury were entitled to draw a certain conclusion, not whether they should have drawn a certain conclusion, not whether the court would have drawn the conclusion, but whether there was evidence upon which the jury could have drawn it. There was that evidence, that the risk of injury was increased by the plaintiff adopting a method which was contrary to his instructions, because he had been instructed that he must not bend his back.

KIRBY J: I thought the law of negligence had developed in an understanding that sometimes employees on a frolic of their own do things they ought not do, and more often employees, in a misguided pursuit of the employers’ interests, do things that they ought not to have done, but that, in the latter case at least, the law still protects them.

MR TOOMEY: Well, it did, your Honour; it gave him a verdict.

KIRBY J: Well, it gave a very small verdict, and burdened him mainly with the burden of your negligent system - 60 per cent of it.

MR TOOMEY: Your Honour, with great respect, he was not injured by our negligent system; he was injured by doing that which was contrary to what he had been told to do.

KIRBY J: This is a pair of scissors cutting up what is a totality. He has to use a human back to be a packhorse picking up a modern pyramid in your interests.

MR TOOMEY: Not the whole pyramid, your Honour, just a stone.

KIRBY J: How many kilos?

MR TOOMEY: 111 kilos.

McHUGH J: Well, he denied he was given a hook at all.

MR TOOMEY: Yes indeed. He denied he was given a hook, he denied he was given any instructions not to bend his back.

KIRBY J: Well, all of that must be assumed against him.

MR TOOMEY: Without a doubt, and in fact it has been conceded in the respondent’s submissions that it must be presumed that the jury found that the plaintiff’s credit was faulty and they accepted Dawes, the apprentice.

McHUGH J: And what was the foreseeable risk of injury and how ‑ ‑ ‑

MR TOOMEY: In which method, your Honour?

McHUGH J: Well, that the plaintiff could rely on to get to the jury. I mean, he cannot rely on the system because he never used the system. In fact he said there was no system.

MR TOOMEY: No. Your Honour, what justified a verdict for the plaintiff was that Mr Simpson said that weight of 111 kilos was excessive in any event, no matter how you lifted it, although he did say that using the hook and standing close to it was as good a method as you could get, in effect, but he said that 111 kilos was too high a weight.

McHUGH J: Yes, but how does that work into it? You have to find a foreseeable risk of injury on the part of the defendant.

MR TOOMEY: Yes. I suppose it must be said that the foreseeable risk of injury was that, no matter how he lifted it, he may injure himself because it was too heavy. Then you have the difficulty which the jury had to face of balancing the fact that the employer had required him to lift this against the fact that he had adopted a method of lifting it which was more dangerous than the method he had been told to use.

KIRBY J: But not for his own benefit; in the pursuit of your interests.

MR TOOMEY: Your Honour, I do not understand that to mean that he cannot be guilty of contributory negligence.

KIRBY J: No, he can be but ‑ ‑ ‑

MR TOOMEY: In McLean v Tedman there was a finding of contributory negligence.

KIRBY J: But it has to be looked at today in the context of what Justice McHugh laid down first in the Court of Appeal of New South Wales and then here, that employment relationship is a special one, very heavy obligations, including obligations of accident prevention, and you seem to have just gone back to primitive work methods.

MR TOOMEY: With respect, your Honour ‑ ‑ ‑

KIRBY J: I put this bluntly so that you can respond but that, I assume, is the way Justice Brownie and the President must have reasoned in the Court of Appeal.

MR TOOMEY: Perhaps I ought to take your Honour first to the direction ‑ ‑ ‑

KIRBY J: I think Justice Brownie did say “prevention”, “enforce” – it is the bottom of page 142.

MR TOOMEY: Yes. Your Honours, perhaps I ought to take you to the directions on contributory negligence and then to Justice Brownie’s remark. The contributory negligence directions start on page 77, that is the learned trial judge’s direction to the jury, and they are of not a lot of interest until we get to line 36 on page 78:

But I stress again, when you are looking at the question of contributory negligence, you must bear in mind that you do not get to it unless you first found that the employer was negligent. So in considering the question of contributory negligence, you must look at the employees position against the background that the employer was itself negligent and viewed against that background, you must ask yourselves in this case whether the plaintiff’s conduct constituted a failure to exercise reasonable care for his own safety, contributing to the harm that he suffered.
Now the way in which the defendant puts the case of contributory negligence is this. Mr Troy Carson had provided the two hooks and had given instructions on how the job was to be done. According to the defendant, the job was apparently done that way by the plaintiff and the apprentice, Shane Dawes for some time on the morning of Monday 20 February 1995, until the plaintiff himself decided to change the method of working by not using the hooks and by lifting the rails manually with Mr Dawes, from the floor to a scaffold platform at just below bar table height, instead of the two timber beams resting on the floor as shown in exhibit B…..
There is a factual issue for you to determine as to whether the hooks were made available. The plaintiff says not. Mr Dawes says they were.

Then there is a Jones v Dunkel direction on the basis that Mr Carson was not called and on page 80 at line 5:

The defendant says that the plaintiff was not told to move the rails more than a short distance, less than 2 metres onto the timbers with the hooks, paint them and move them a short distance again with the hooks. The defendant concedes that that system was said to be by Mr Simpson, unsafe and concedes that that is the only evidence on that precise point. But the defendant refers to the evidence of Mr Simpson that bending is the important aspect in putting strain on the back and the defendant submits to you that it was the plaintiff’s idea to lift the rails in the way that he did and that therefore he is the author of his own misfortune and that therefore the plaintiff shares significant responsibility for his own injury.
On the other hand, the plaintiff as submitted to you by Mr Kelly, says that there was no contributory negligence and you should not be satisfied –

that there was any –

He submits to you that in the circumstances the plaintiff’s conduct was reasonable or was not unreasonable.

And his Honour says the onus is on the defendant in this matter.

KIRBY J: There was no complaint about those ‑ ‑ ‑

MR TOOMEY: None whatsoever, your Honour, not from either party. At page 81 at line 16:

Now in apportioning fault as between the parties, if you get to that stage of finding fault by both parties, you must arrive at what you consider to be a just and equitable apportionment between the parties of responsibility for the plaintiff’s injury. That involves a consideration of the degrees of fault on both sides, the extent to which you find each of them to have departed from the standard of care of the reasonable person and the cause and effect of the conduct of each party in what occurred. If for instance you think that one party was negligent, but that party’s negligence played only a small part in the cause of the accident, then that would be a matter obviously for you to consider and to reflect that in your apportionment of responsibility.

KIRBY J: Is not the clue to the idea at least behind Justice Brownie’s holding that in those words of “the reasonable person” is the seeds of a mistake because the test is not: was it reasonable for Mr Unver or the apprentice, but the reasonable employer who, under Australian law, has very important responsibilities to have and enforce a safe system of work?

MR TOOMEY: Well, your Honour, with great respect, if that is directed to a suggestion that all the responsibility is on the employer, it cannot be right.

KIRBY J: No, no, but such responsibility as the employee has is in a context which is not a purely moral judgment. Should he have broken the employer’s rules, should he have lifted, should he have bent his knees? It is whether in that context you were sufficiently attentive to your duties as employer as to ensure that in the pursuit of your interests your employee would not do something misguidedly that injured him.

MR TOOMEY: Your Honour, it is picked up in the next paragraph. Can I just read on, your Honour. His Honour then said:

If you come to the question of contributory negligence and you are apportioning fault, it is a very relevant consideration that it was the defendant, the employer which was providing the place of work and the system of work and the work which the plaintiff was being called upon to perform.

His Honour then says, at the top of 82, that Mr Mooney, who appeared at the trial for the defendant, said contributory negligence ought to be 75 per cent; Mr Kelly said 5 to 10 per cent.

Now, your Honours the plaintiff, therefore, had the benefit of a direction which made plain what your Honour Justice Kirby has been putting to me, that it was the employee’s place of work and it was relevant in considering contributory negligence that he was injured in the course of his work, and so on; and that the jury chose to find, considering those directions, that, having regard to the clear breach by the plaintiff of his employer’s instructions, his development of a means of work which required him to lift his back which Mr Simpson, the plaintiff’s expert, says is the truly material matter in causing back injury, that having regard to those things, the jury was satisfied that 60 per cent of the blame ought to be apportioned to the plaintiff.

McHUGH J: But the problem, if it is a problem, is that Justice Brownie reconstructed the cases, it seems to me, of both parties. Justice Brownie saw what was the real issue of negligence which, it seems to me, was never run at the trial ‑ ‑ ‑

MR TOOMEY: With respect, that is right. It first appears in the judgment. It was not run on the appeal either.

McHUGH J: You look at 143, there is the whole key to the case. His Honour says:

If the system of work provided involved employees working in conditions of discomfort, it was plainly foreseeable that they might take steps to ameliorate those conditions, whilst otherwise working in accordance with the system.

So that was the foreseeable risk. He does not say what it is, but then further down he says at line 16:

it seems to me that what the appellant did was to change the system so as to reduce the discomfort and inconvenience of working for hours (with interruptions when moving the rails) in a crouched, kneeling or similar position. The jury’s verdict means that in doing that, the appellant failed to take sufficient care for his own safety, in relation to the lifting of the rails on to (and off) the scaffold frame, and doing that manually rather than with the lifting hooks. In my view this was something the respondent ought to have foreseen and guarded against, but in any event what the appellant did was inadvertent on his part.

So his Honour seems to be saying notwithstanding the express instructions not to bend your knees, and the express instructions to use your lift, the defendant should have reasonably foreseen that the plaintiff would disobey those instructions, not use the hooks and bend manually.

MR TOOMEY: Yes. Well, your Honour, I accept that. Can I say this: the first thing we would quarrel with his Honour in that passage is his use of the word “inadvertent”. There was nothing inadvertent about it. The plaintiff said, as Mr Dawes deposed, “I do not like this because painting them and cleaning them on the ground is uncomfortable, so we are going to do this”. In the course of doing that, he had to do that which he had been directly instructed not to do. He had to bend his back.

KIRBY J: But I think the suggestion is that employers who submit employees to this sort of physical labour have to anticipate that employees who do that sort of work are liable to try to do it in a way that is more comfortable to them, however misguided.

MR TOOMEY: There are a number of answers to that, your Honour. The first is that this injury occurred to the plaintiff within five to 10 minutes of him adopting his own method of work. There were three gangs on the site, Carson was the foreman and there is evidence somewhere that the other two gangs were within the lift wells. So it could hardly be said that, given the five to 10 minutes that it had been going on, that the defendant had any opportunity of necessarily seeing it and correcting it.

There is also this material matter, that painting and cleaning the beams on the dunnage on the floor may have been uncomfortable, but it carried no risk. You were not going to be hurt by doing that. You might get a kink in your back, but you could stand up and you could ease it. But it certainly carried a risk ‑ ‑ ‑

KIRBY J: It carried some risk according to Mr Simpson, but less.

MR TOOMEY: Not the painting.

KIRBY J: Not painting.

MR TOOMEY: No. I am talking about what Mr Unver was avoiding.

KIRBY J: We are talking about the lifting of a hundred and ‑ ‑ ‑

MR TOOMEY: He was not avoiding any danger in lifting with the hook. He was avoiding discomfort.

KIRBY J: From the painting.

MR TOOMEY: Yes, because with the girder and the dunnage, he had to get down and paint and clean it near the ground. So he was not avoiding danger. He was avoiding inconvenience or discomfort, and he adopted a method of doing it which was directly contrary to the instructions to him and an experienced workman must have known that the direction to him to do it with his knees bent and not his back was a safety instruction.

McHUGH J: Maybe it does not arise but, really, it comes down to this, does it not, that even if the defendant had supplied a crane to lift these beams onto this, the plaintiff, in all probability, would still have disobeyed that system ‑ ‑ ‑

MR TOOMEY: Yes.

McHUGH J: ‑ ‑ ‑and he would have disobeyed the system because what he was complaining about was the inconvenience about painting it while you are bent down. So, it was not anything to do with lifting; it was the fact that you had to paint them while they were down on the ground. That is why he went and got the box or whatever it was and put it up there.

MR TOOMEY: Yes, that is so, your Honour.

McHUGH J: So, I do not know.

KIRBY J: That is speculation, is it not?

MR TOOMEY: What is speculation, your Honour?

KIRBY J: What his Honour has just put to you. We just do not know. No hook was provided.

MR TOOMEY: I am sorry, no hook was provided. Yes, hooks were provided.

KIRBY J: Yes, but, remind me of what the evidence was in relation to actual alternative non-manual lifting, so that 110 kilos did not have to be lifted by a human back.

MR TOOMEY: Teams of men or a lifting device.

McHUGH J: The plaintiff never complained that he changed the system because they were too heavy to lift the beams.

MR TOOMEY: No, he did not; he complained that it was uncomfortable bending down to paint and clean them on the ground. So he adopted a method which could not use the lifting hooks, which he had been given for his safety, bent his back and lifted it and, in the course of doing so, seriously injured his back.

Can I just take your Honours to one piece of evidence which is material. It is Mr Dawes, the apprentice, at page 62 at line 38; and this is Dawes in-chief:

Q. And did something happen in relation to the way you were doing your work which changed that work?

Mr Unver:

Q. What did he say, he said?
A. He said he was fed up with bending over and painting the rails and he wanted to lift it up to a better height that he didn’t have to bend over.
Q. What then happened?
A. He went across and got a scaffold frame –

and then at line 11 on page 63:

Q. And what system was then used?
A. He told me we were going to be picking them up and putting them up on there so there was no more bending involved in painting.
Q. So what did you then do?
A. We had to physically manhandle the rails to pick them to put them on the –
Q. And you were there and you were doing this, did you experienced it – your own experience, the use of the hooks and moving them over onto the timber, as you experienced it, how difficult was that for you?
A. Using the hooks it’s very easy work. It’s not very hard at all because you’re keeping your body straight but actually bending over and picking up rails is a very hard job.

Now that, of course, was the change which was put into place by the plaintiff.

McHUGH J: Well, there is also some evidence on page 62 that is rather favourable to you at line 23, when he said that Carson came over to Mr Unver and said:

You are lifting incorrectly, bend your knees and don’t bend your back.

MR TOOMEY: Yes. And you see, your Honour, Unver’s had denied that. It was put to Unver’s that that had been said, he denied it. Dawes said, “I was there and that was said to him”. Then on page 64, in cross‑examination, Mr Unvers had also said that he had never been given any instructions what to do. The question in cross-examination to Dawes, line 10, your Honour:

Q. When you were given the original instructions as to how you were to go about doing this job you were told merely, weren’t you, to go with Mr Unver and paint the rails?
A. I was told to – I was actually shown where to go, where the rails were, I was shown the timbers to put them on. I was shown the paint, paint brush, all the relevant equipment needed to do the job. I was also shown how to use the hooks.
Q. What I’m simply suggesting to you is that all you were told to do, as far as Mr Carson was concerned, that is you and Mr Unver, okay you two go and paint the rails?
A. Yeah.
Q. That was all that was said to you, wasn’t it?
A. At the initial start, yes.

who was the foreman –

set you up and had the – the timbers on the floor, is that what happened?
A. Yeah and showed us accordingly how to do it.
Q. You were not using hooks were you?
A. Yes I was.
Q. The fact of the matter is that you were merely lifting the rails onto the timbers…..and painting them?
A. No you’re incorrect.
Q. Did you have any problem bending down to paint the rails when they were on the timbers?
A. No not a problem at all.
Q. It was easier, wasn’t it, when they were on the scaffold?
A. It was easier when you were painting them, yeah, it wasn’t easy when you were lifting them though.
Q. You still have to lift them off the floor whether it was onto a scaffold or onto a timber though, didn’t you?
A. Yeah but one’s two inches and the other one’s twenty inches, a big difference in height.

Now, your Honours, it really is the question that is posed by Calin: was a jury, drawn from the community, entitled to say, “We look at this, and although it was too heavy, they should have had lighter girders or some other method, but this man deliberately disobeyed his instructions, not for his safety, but for his comfort, without referring to his employer, without asking his employer could he do it some different way or was there some way which did not involve danger to do it, in circumstances where he had been told not to bend his back while lifting, he deliberately did so, and he suffered injury”. Now, how can it not, with great respect, be said that it was not open to a jury to say he was 60 per cent to blame. If it was perverse to say 60 per cent, how does one get to 20 per cent.

KIRBY J: Counsel had suggested to the jury 15 per cent. Once the error is found, it is for the Court of Appeal to determine its own assessment. So, I do not think that percentage is the problem, the question is whether, in all the circumstances, accepting the correctness of the charge, and accepting all the factual findings in your favour, it was open to the Court of Appeal to find that this was a perverse decision on the part of the jury. Once they do, I do not see a problem with the assessment.

MR TOOMEY: The point I am making on that, your Honour, is that what you are substituting, in effect, is one jury assessment for another.

KIRBY J: But that is the authority of the Court of Appeal. Once error is found it becomes the substitute tribunal of fact.

MR TOOMEY: Yes, but it depends, of course, upon there being no possibility of a reasonable jury having arrived at what it arrived at.

KIRBY J: But that is step one. You were attacking step two and Justice Meagher attacked step two too, but it is erroneous. Once you find error, it is for the Court of Appeal to substitute its own opinion.

MR TOOMEY: Yes, but, with respect, what Justice Meagher said was attacking both step one and step two because he said “On the basis of these facts, how can it be said 20 per cent rather than 60 per cent?”

KIRBY J: Well, I do not find step two difficult. I do not find it difficult because of a conception I have about the overall heavy obligation which, like girders, rests on employers, rests by the decision of this Court ‑ ‑ ‑

MR TOOMEY: Pyramid stones.

KIRBY J: Pyramid stones, if you like – to have a system and to enforce it, which is protective of the backs of manual workers.

MR TOOMEY: Your Honour, with great respect, I accept what your Honour says and I have argued it many times myself, but the fact is that you get to a position where the departure by the worker is so great and where he imposes upon himself the danger, not being imposed by his employer, that a finding of contributory negligence of this sort is open to a jury which is, and I know I do not have to remind your Honour, but I shall, the constitutional tribunal. The jury are the tribunal that the community trusts to say what the standard is.

KIRBY J: Do not trust them very much more in these cases. They have been thrown out in the place of judges.

MR TOOMEY: I do not know that they are, your Honour. I know there is a move to do so, but I ‑ ‑ ‑

KIRBY J: They still conduct employer negligence cases in New South Wales?

MR TOOMEY: Yes, your Honour, they do. Unless there is some specific matters your Honours would like me to address that is our ‑ ‑ ‑

GLEESON CJ: Thank you, Mr Toomey.

MR TOOMEY: Thank you.

GLEESON CJ: Yes, Mr Gross.

MR GROSS: Your Honours, could I start by straightening out a couple of errors of fact which have crept into my learned friend’s analysis in relation to the way in which the case was conducted. Your Honours, not in order of importance, one matter my learned friend said was that on the evidence there was no suggestion of risk of injury from the plaintiff adopting the method of painting the bars on the ground, that is two inches off the ground, it was just convenient to him. Of course, that ignores what Mr Simpson said about that, taken in conjunction with the reason that the plaintiff gave to Mr Dawes as to why he wanted to change the method.

If your Honours go to Mr Simpson’s evidence on page 54, your Honours will see at line 15 in examination‑in‑chief:

And in also directing it to you I asked you assume that a way of doing the work, namely the cleaning and painting was to do it in the manner as described in the photograph, that is the beams placed on the floor with the rails traversing same?
A. Yes.
Q. Is that a safe way of effecting the cleaning and painting of these rails, in your opinion?
A. In answering that I really must make two assumptions. One on how the rail got there and one on whether it’s just a one off situation or whether it’s repetitive in any way. On the assumption that there’s more than one to be done I would say these – the potential is for it to be very fatiguing of back muscles and causing backache and secondly, the positioning of the rail on the floor must be carried out by some means and if that’s done manually down the floor level then the risk, in my view, is even greater than it would be onto the stillages or scaffold as I think it’s been referred to.

Incidentally, your Honour, the reference to “positioning” at line 28 would appear to be the task of rotation, bearing in mind that when the bar is only two inches off the ground being raised by these timber beams you cannot really clean and paint with a brush where the space is only two inches between the bottom of the bar and what is described in the evidence as being “a dirty floor”. Can I emphasise that of course ‑ ‑ ‑

KIRBY J: I do not quite understand that. Why can you not put a newspaper between the bar and the floor? A lot of painters do that.

MR GROSS: The space of two inches is a perilously small space in which to get underneath something in which to clean it and paint it.

KIRBY J: Newspaper is perilously thinner than two inches.

MR GROSS: But, in any event, if I could just adopt what Mr Simpson is saying. Further on at line 42 on page 54:

You did, in relation to the work being done at that level, by that I mean resting on a beam which is resting on the floor, having to manoeuvre, by turning, for the purpose of cleaning and then painting, bearing in mind that position of bending that a worker would have to adopt, would that be a safe system of doing it as far as any stresses upon the lumbar spine created by the need to bend much further?
A. If there’s any need to bend, which I can see would be the case if that rail needed to be turned, well then there is most certainly potential there for back injury because the stresses on the base of the spine are very high.

Now, his Honour in the summing up referred to Mr Simpson’s evidence in a number of respects but if your Honours would just go to page 88 at line 45, your Honours will see his Honour says:

But you might think, having heard the evidence and particularly that of Mr Simpson, which is not contradicted, and you will recall that Mr Mooney did not attempt in any way to cross‑examine him so as to get him to retract what he said about safe lifting weights, so you can take it that the defendant accepts that what Mr Simpson said for that purpose can be accepted by you.

Now, of course, that is being addressed and I will come back to that more in context in the context of the overall unsafe system of work which the plaintiff is alleging and can I point out just to address one of the matters your Honour Justice McHugh raised, the plaintiff’s allegation of unsafe system was that by whichever method – having the plaintiff have to manually lift these bars with a fellow worker without additional manual or extra mechanical assistance was, per se, unsafe as in fact Mr Simpson had said.

McHUGH J: Yes, but that had nothing to do with the case. That cannot be your case. That could not be negligence. Justice Brownie made your case for you in the Court of Appeal, but it was never the case that was put to the jury.

MR GROSS: Your Honour, can I come to Mr Justice Brownie in a moment and reinterpret Justice Brownie, but can we just deal with, then, what Mr Simpson had to say about the unsafe method. Your Honours, what he said, that even if you are lifting, the two of you, this weight ‑ ‑ ‑

McHUGH J: I know that, but you are putting up a straw man. It has nothing to do with the case, except in so far as it may have been inconvenient and caused discomfort and whether a reasonable employer should have foreseen that the workers would not act or continue to use that system and would then devise a system of their own to overcome the discomfort.

MR GROSS: Your Honour, I will do a Justice Brownie now, if I can. At 143, which is the passage your Honour is addressing, his Honour is not summing up his view of the characterisation of the defendant’s negligence. Rather, what he is doing is putting into context, assuming findings made in the defendant’s favour on the contributory negligence, or making assumptions in favour of the evidence which points in that direction ‑ what he has basically said is that even if you have contributory negligence because the plaintiff changes the method, nevertheless, the fault of the plaintiff which arises therefrom is in itself a foreseeable variation by the plaintiff of the method the worker has been given to ‑ ‑ ‑

McHUGH J: Reasonably foreseeable.

MR GROSS: Yes. Your Honours, on 143 it is to be noted that his Honour is commencing at line 11, which is what appears to be paragraph 14, by saying:

The issue of contributory negligence has to be approached –

et cetera, so he is addressing that particular aspect and when looking at the fact that the plaintiff has made an unauthorised departure and putting the respondent’s case at its highest, taking into account that species of contributory negligence, what you have is two features: one, that he is making an understandable adjustment to the inconvenience, et cetera, of the defendant’s preferred method of work; and, secondly, what he is doing is, in effect, within the foreseeable scope of how the worker might be expected to approach his work, having regard to the overall circumstances of the work task.

CALLINAN J: What do you think the employer should have done, other than give explicit instructions? What could have been done?

MR GROSS: He should have complied with what Mr Simpson stated, in our submission, in an uncontradicted manner so far as the defendant was concerned was what was required by standard practice, namely, the provision of extra manual assistance, that is, more workers ‑ and I think he mentioned up to eight workers ‑ or, alternatively, the mechanical assistance ‑ ‑ ‑

CALLINAN J: What, up to eight workers? He should have had, what, eight workers available for this exercise? He would not have stayed in business very long, I would have thought.

MR GROSS: Your Honour, that was the number he gave, but plainly what he was indicating was that the other alternative was the more obvious and reasonable alternative, and a simple one, namely, the provision of proper mechanical devices, of which there were thousands of examples in industry and which were freely used.

McHUGH J: But that was not the operative cause of the failure. The defect in the system was having it on the floor, was it not?

MR GROSS: No, your Honour, the ‑ ‑ ‑

McHUGH J: It must have been because that was the reason the plaintiff changed the system and, according to Mr Simpson, it itself gave rise to the problem of backache. So, arguably, from your point of view, the employer should have foreseen that and taken steps to have a system where that were raised above the ground.

MR GROSS: Your Honour, that is not so, and that is not the case of negligence that was put to the jury both by counsel and by his Honour.

McHUGH J: You are lucky we do not have to rule on that.

MR GROSS: Yes. It is evident from the transcript that the case that was argued between the parties, that is, fought at trial, and the case that was put to the jury took, as given, Mr Simpson’s evidence that lifting the equivalent of 55 kilograms was, I think, 20 kilograms in excess of what ‑ ‑ ‑

McHUGH J: Sixteen.

MR GROSS: No, your Honour ‑ ‑ ‑

McHUGH J: Well, it was 35, but 39 was the statutory – was it not?

MR GROSS: No, your Honour, it was not the statutory restriction. The source of the figures was Mr Simpson’s unchallenged evidence that 35 kilograms was the maximum weight that you should take if, in fact, you are carrying out lifts on a more than one‑off basis, that is, on a repetitive basis, regardless of the posture of the spine. In other words, that was assuming, according to Mr Simpson, lifting in ideal circumstances, that is, with a straight back and with no relevant twisting or other contortions that could increase the risk of injury. So that if your Honours would just go to what ‑ ‑ ‑

KIRBY J: Where is that?

MR GROSS: I will just turn that if I may. At page 50, lines 5 through to 40. I will not read it, but I will summarise it. He took half the weight as being 55 kilograms. He allowed for the fact that there can be variations because you never have exactly half. So there would be variations up and down by 10 to 15 per cent. But 55 kilograms is a reasonable estimate of the weight being lifted. The absolute maximum for a person to lift is 39 kilos, and he says at line 22:

That’s under ideal conditions on a once per eight hour basis and assumes that whoever does it, bends their knees, keeps a straight back, there is no twisting or any of those contortions that are known to be potentially dangerous. So in this instance the weight is well and truly over that and there has to be a real risk of injury and specifically a back injury.

Then he is told about the repetitive character of the work, and at line 37:

A. At 85 to 90 per cent of the 39 kilograms, so something of the order of 35 kilograms.

That was, according to the question, the maximum weight the person should lift, ought be able to lift without being exposed to a risk of injury. He also goes on to assume that that is a person trained in lifting. So that 55 exceeded the 35 by 20 kilograms and, according to Mr Simpson, this standard represents standards which have been in existence and “very well known”, et cetera, by bodies “such as the National Health and Medical Research Council” – that is line 18. Then he goes on at the top of page 51:

in Australian, pretty well common knowledge throughout industry since January 1981.

So that the thrust of Mr Simpson’s evidence is, as everyone acknowledged in that trial, and his Honour pointed out in his summing up, is that 55 kilos far exceeds what this man should lift whether he has a straight back or not, whether he has a mechanical implement which aids him in a vertical lift so he can keep his back straight. So that it was given in both methods of lifting that he is lifting 20 kilograms more than the relevant standard, whether he is doing it from the ground without the hook or whether he is doing it with the hook in the method that the employer wanted.

McHUGH J: But the point against you, and what I have been putting against you, is that he was not injured using that system. He was not injured using a hook with his back straight, which was the system. He was injured when he bent his back in disobedience of his instructions and, therefore, the negligence is as Justice Brownie said, that given the discomfort, it was – it would be different if your client had said, “Well, it was too heavy doing it that way. It was too much strain on our back, lifting, therefore, I devised this system”. You would be on much surer ground.

But what caused your client to operate in the way he did was the conditions of discomfort in relation to painting. Now, Justice Brownie said that it was reasonably foreseeable that that would cause an employee to invent his own system, and that can be accepted for the purposes of this appeal. But it was your client’s conduct in bending his back that brought about his injury and very quickly.

MR GROSS: Your Honour, that was the last action in temporal terms but, your Honour, the major cause of the injury was the excessive weight that was being lifted and it was that risk which the defendant took proper steps to avoid.

McHUGH J: Well, we do not know. Bending his back, he may have got an injury with 30 kilos.

MR GROSS: Well, your Honour, can we then go to the case that was put to the jury by his Honour. Your Honours, at page 75, his Honour sums up what the plaintiff’s case was.

KIRBY J: Is it your answer to Justice McHugh that, on his theory that the case turned on causation, you would have expected the jury to dismiss the claim on the basis that there was nothing causative in the employer’s system that had caused his injury in the first place? If he had stuck to the system they had said, he would not have been injured?

MR GROSS: Yes.

KIRBY J: So that, it is inherent in the jury’s verdict that they found against that, and the question is whether or not then finding a 60 per cent contributory negligence in a postulate of finding negligence is what is said to be perverse?

MR GROSS: Yes. The unsafe system of work which was put was that by which ever method the weight itself is simply too much and that the defendant should have prevented that risk ‑ ‑ ‑

McHUGH J: The jury never asked a rule on causation. It was never an issue at the trial. But it would have been an issue if the case had been conducting in the way that Justice Brownie said it should have been conducted. I have got little doubt that Justice Brownie was absolutely right when he said there was a case to go to the jury on the basis that he said there was.

MR GROSS: Your Honours, the only case on an unsafe system of work, which is put to the jury, was the weight of the bar and the fact that this man was manually lifting it by whichever method. Can I then take your Honours to ‑ ‑ ‑

McHUGH J: Unless you are going to take us to something else, we have already been taken to it, and it was put on both sides, I think, not strictly in accordance with what I would see were the correct legal principles to be applied. But that said, the question is, whether or not 60 per cent is too much. It is a very high verdict; 50 per cent, it seems to me, you would have had a real problem, but Justice Brownie thought 20 per cent. Perhaps we should not overlook Justice Brownie to be unsuccessful counsel in Podrebersek, when in Podrebersek’s negligence – I am pretty sure I argued Podrebersek in the Court of Appeal for Podrebersek.

MR GROSS: Justice Meagher, of course, was the successful counsel in Podrebersek.

KIRBY J: Never forgets.

MR GROSS: But can I decline to go down the path of percentages, which your Honour just lay so helpfully in front of me, and just point your Honours to the matters in the summing up which make quite clear that the only case put on negligence to the jury by the parties and by his Honour, was a case which was based upon the unsafe weight, which the plaintiff was required to take by whichever method, and, your Honours, the jury have to be taken as acting faithfully in accordance with his Honour’s directions and the case that was being put to them and not making findings outside those directions or that case.

Your Honours, at page 75, line 32:

This was a heavy rail. On the evidence it weighed about 111 kilograms. The plaintiff says, “I should not have been allowed or expected to lift this rail with the assistance only of one other workman. There should have been more help.” So he says the defendant was in breach of its duty to provide a safe system of work. The system that should have been employed the plaintiff says, was to use either a mechanical lifting device, a small crane of some sort, or alternatively, to use eight men, two on each of four tongs as a team, possibly with an extra man supervising.

And then, over on page 76, in referring to Mr Simpson’s evidence, at line 4:

You will also recall his evidence that the plaintiff was lifting about 55 kilograms and the maximum recommended weight for a man to lift is 39 kilograms on a once per 8 hour basis under ideal conditions. He thought a safe lift in the plaintiff’s circumstances would be about 35 kilograms, assuming good lifting technique.

And good lifting technique, incidentally, is straight back, which is what you get, of course, whether you use a hook or not, on that scenario.

In the circumstances of the plaintiff’s lift, Mr Simpson thought that there was a real risk of injury, and specifically of back injury.
Mr Mooney, on behalf of the defendant, puts this to you, that he, the plaintiff was not asked by the defendant, his employer, to carry out the lift in the way he did and it is open to you to say the defendant was not in fact negligent. But basically, Mr Mooney puts to you that the plaintiff shares some significant responsibility for his injury. He puts to you that it was his, the plaintiff’s idea, to lift the rails in that particular way and so he was the author of his own misfortune.

Further, at line 35:

Mr Mooney did not spend a lot of time submitting to you that the defendant was not negligent.

And he then refers to, at the bottom of page 76:

they are the competing submissions of counsel on the question of negligence –

et cetera. Now, of course, Mr Mooney did preserve to himself the capacity to say, “the plaintiff has not proved negligence”, page 77, line 45.

Your Honours, at page 87, line 28:

The way in which the plaintiff puts his case here is that he was required by whatever means, to lift a weight that was excessive. That is his case. He says it does not matter really whether you find that the hooks were available or not, because in any event the weight that was to be lifted when distributed between the two men who were to do the lift, was still excessive, and for that the plaintiff relies upon the evidence of Mr Simpson.

Then at 88, line 11:

So according to the evidence of Mr Simpson, the plaintiff, by whatever method, was being required to lift a weight approximately 20 kilograms more than what he regarded as safe. And that is basically the plaintiff’s case.

Then if the Court goes just a bit further down ‑ ‑ ‑

KIRBY J: Which by inference is the case that the jury accepted.

MR GROSS: Yes. The 40 per cent has to be that finding. I have read to your Honours the extent to which Mr Mooney was at odds with Mr Simpson, and that is at the bottom of page 88. I have been through that. Your Honours will recall Mr Simpson’s evidence that Mr Mooney got Mr Simpson to concede that there would be a lessening of the potential strain if in fact you are using a hook because you are taking up the risk factor of bending your back. Nevertheless, Mr Simpson stayed solid as to what the requisite standards as to what should be lifted manually by two men by whichever method and ultimately, we submit, that the jury must have accepted that case.

Can I then go to what Justice Brownie said. Justice Brownie starts talking about the case of each of the parties at page 141, line 37:

The appellant contended, amongst other things, that the rails were too heavy for two men to be asked to lift even if they used the lifting hooks provided, and even if they only had to be lifted to a height of about 2 inches. There was evidence, neither contradicted nor challenged, that 39 kilograms was the absolute weight that might safely be lifted…..The finding by the jury of negligence means that the jury accepted at least the general thrust of this case. The finding of contributory negligence means that the jury accepted that the appellant disobeyed the instructions of Mr Carson, in not using the lifting hooks provided, and in placing the rails upon the scaffold frame –

et cetera.

So that his Honour is there discussing the issue of negligence and goes through what I might say familiar country and states the obligation of the employer in negligence terms, finishing at the top of page 143. In his analysis of contributory negligence, his Honour mentions a number of factors. It may be that he could have been more felicitous in his expression, but what he is basically doing is taking Mr Dawes’ evidence at its highest, putting the contributory negligence which is implicit in acceptance of that version of events into context, that is looking at the overall circumstances. So that he emphasises a number of matters. The first one at line 20 is in effect the reasons for the appellant changing the system were work related, related certainly to comfort and inconvenience and therefore more understandable as conduct that was not unreasonable. In a comparative analysis, that sort of unreasonableness was mitigated, given the other demands being made on the plaintiff.

The change of method is to one which Mr Dawes alleges is taken as a given but, in any event, his Honour, in dealing with that particular aspect, says that is:

something that the respondent ought to have foreseen and guarded against –

that is, if you are giving someone a method where for about 95 per cent of the time they are going to be crouched over a series of bars throughout the working day and that is uncomfortable and it affects both the worker and the performance of the work, it is not surprising if some attempt is made to alter that posture and, of course, that involves elevating the bar to a greater height so you have better access. In doing that, of course, you cannot use the lifting hook, because I suppose it is about waist height and it is inconvenient to lift it in that method. So that ‑ ‑ ‑

KIRBY J: How much time did your client have to spend crouched, as it is suggested?

MR GROSS: Your Honours, the plaintiff gave evidence that it took 15 to 20 minutes to do the total overall task, that is, the initial taking of the bar from the stack up until you put it aside after you had painted and cleaned it.

McHUGH J: It was 30 seconds he took.

MR GROSS: Thirty seconds is how long it takes to do that and so – I am sorry?

McHUGH J: No, the lift. Thirty seconds to lift and put it on there, was it not?

MR GROSS: Yes, and I suppose the same for taking it off.

McHUGH J: Yes.

MR GROSS: So you have really got either 14 minutes, or 19 minutes out of 20, so you are looking at either 90 or 95 per cent of the time.

KIRBY J: All day?

MR GROSS: All day.

KIRBY J: That was his job all day?

MR GROSS: Yes, and it seems that the work had started on the Thursday, according the plaintiff, or Friday, according to Mr Dawes, and the injury happens just before morning tea on the Monday. So that when the plaintiff changed his method of work, it was so that he was more comfortable more of the time, but he was also reacting to his experience of what it was like to do that work in that particular posture, one bar after another throughout the working day.

So that when his Honour Justice Brownie is talking about foreseeability, he is talking about the fact that, if you are comparing faults and the relevant fault is the plaintiff making a change, you have to weigh into that equation the defendant’s obligation to foresee variations within the workplace which an industrious worker, or a worker who is in that posture, might find convenient, either because of his comfort or in terms of maintaining the productivity of the work.

CALLINAN J: Why should a jury not understand these things much better than a judge who has probably never been in a manual workplace and required to work? All of these things the juries take into account when they make their assessment and make their apportionment. It is not for the court to reconstruct the workplace in a jury case.

MR GROSS: Your Honours, we would submit that it is necessary in the end to ask whether or not, having regard to all of the circumstances ‑ ‑ ‑

CALLINAN J: And having regard to them, to say that the jury was perverse.

MR GROSS: To begin with, we would submit that you have to have regard to all of the circumstances of the work, that is the whole time frame rather than a particular time frame which, according to Mr Dawes, was five or 10 minutes.

CALLINAN J: But this was all before the jury.

MR GROSS: But, in any event, the facts which give rise to those circumstances are not in dispute. They are givens, whether you accept Mr Dawes’ version or the plaintiff’s version. We submit that you have to compare the difficulties and the risks of the whole of the circumstances of the work with the particular behaviour which enhanced the risk of injury.

CALLINAN J: And that is what the jury does when they make their apportionment.

MR GROSS: Once again, we submit that the jury had to take into account the uncontradicted evidence that there is a risk ‑ ‑ ‑

CALLINAN J: Yes, but on the basis of that evidence they then apportion responsibility between the parties and all I am putting to you is that a jury, some might think, are in a much better position to do that, to understand the workplace and the exigencies on each side, than a judge. That is all I am putting to you.

MR GROSS: We would submit that the jury acting conscientiously and reasonably would have to go through the same exercise as a judge would, according to the established authorities. Can I, to deal with your Honour’s point, just summarise those matters that require a conclusion that the Court of Appeal acted in the reasonable exercise of its discretion.

KIRBY J: You want to get into the facts now but, Mr Gross, at the conceptual level is not your answer, or a matter to be considered in an answer to the fundamental question Justice Callinan gave, that we do have a system of appeal? It is there to check against error. It is there to check against error on the part of primary judges where they are fact finders and jurors where they are fact finders. It is true that in the case of juries, because we do not have reasons, there is a great caution in intervening and all facts have to be assumed in favour of the successful party, but it is still there to guard against perverse decisions.

Now, you may think this perverse or you may think it not perverse, but the Court of Appeal has its own function in our legal system as well as the jury’s function. It is not final at the jury stage. That is what the level of appeal is for.

MR GROSS: Yes. We have, I think, pointed out in our own submissions that the true question is whether the New South Wales Court of Appeal erred in the exercise of its appellate discretion. It is not a question as to whether or not the jury went wrong at trial.

KIRBY J: I am not sure about that. The Court of Appeal can only intervene if they come to the view that the jury went very wrong, perverse, as it sometimes is described, otherwise it is no business of the Court of Appeal to go in substituting their own opinion.

MR GROSS: Yes. The point we make is that the decision of the Court of Appeal, as an intermediate Court of Appeal, is there and we are not looking at the primary question. We are, rather, looking at it as to whether the Court of Appeal’s discretion miscarried. We set out at the outset to correct what my learned friend put concerning a number of matters. My learned friend, I think, adopted your Honour Justice McHugh’s proposition that the only unsafe system, in effect, being dealt with here is, in effect, the employer’s failure to anticipate the change of method by the plaintiff.

McHUGH J: I really do not think it was an “unsafe system” case at all. On the evidence the system was unsafe but had nothing causally to do with it other than to perhaps bring about a situation where the plaintiff would invent his own system. I do think it is a loose characterisation of Justice Brownie to say that the plaintiff modified the system. He did not modify it. He invented a completely new system.

MR GROSS: Your Honour, it cannot be completely new if it is still a bar and you are still using the physical efforts of two workers to elevate it.

McHUGH J: He brings a different – he has a different workplace and you are going to do it manually, and you are going to bend your back.

MR GROSS: The work in both cases is taking the bar from the stack and it is the point of doing that that they are both doing it. The only difference is that they do not have the vertically placed hook. Of course, the ‑ ‑ ‑

KIRBY J: I do not quite understand that. Could you just explain that?

MR GROSS: The injury occurs at the point where the bar is being taken from the stack. He describes it as being the ground and the – I will just check that reference. What the plaintiff says is that he was bending down to lift a rail with Shane Dawes, he picked it up to lift and injured his lower back. Page 13, line 8:

Around about half past eight, close to a tea break I was again bending down and I tried to lift the railing. When I was doing that I felt a burning sensation.

Then line 21:

When you first felt this pain in your back were you lifting the rail from the ground level up to the shelf?
A. I bent down, picked it up, tried to lift, then I felt that burning sensation.
Q. Was the other young man lifting at the other end of the rail?
A. Yes sir.

KIRBY J: Did Mr Dawes give the same evidence?

MR GROSS: Yes.

KIRBY J: Because it would be open to the jury to accept his evidence.

McHUGH J: Dawes’ evidence is at page 63.

KIRBY J: Mr Toomey is giving you some helpful assistance here.

MR TOOMEY: I always do.

MR GROSS: Yes. At line 50:

Q. What then happened?
A. He went across and got a scaffold frame which is about a couple of foot off the ground ‑

et cetera. Then at page 63, line 30:

How long had you been doing the manhandling before Mr Unver made – did he make a complaint to you about back pain…..
probably about five or 10 minutes.

He does not really describe the occurrence of the injury as distinct from the preceding matters in any detail.

GLEESON CJ: When was it that he was rebuked by the foreman for not doing it properly?

MR GROSS: Your Honour, it was some time before. It was unclear whether that was on the Friday or on the Monday. Mr Dawes seemed to say it happened at some time during the overall work and Mr Dawes did seem to indicate he started work on the Friday. He says that they were given directions about how to do the work when he started and that, by implication is the Friday.

GLEESON CJ: At a time he was using the lifting hooks or not using them?

MR GROSS: No context is given. It is just while they are carrying out the work, the foreman, Mr Carson, says that he has noticed the plaintiff bending his back, “Don’t bend your back, bend your legs”, but we do not have any surrounding facts or precise timeframe on that.

KIRBY J: Is it any part of your case that the employer knew he was doing it in this newfangled so-called special way of his own?

MR GROSS: No, your Honour. Mr Carson was at the site but he was not supervising in the sense of actively watching and there is no suggestion that he himself detected the change in method by the plaintiff.

KIRBY J: The view that Justice Mason and Justice Brownie give effect to is, some might think, a very much a nursemaid view of what employers in contemporary Australia have to do vis-a-vis employees. Is that what the law of contributory negligence says? Leave aside the jury, which complicates matters, but what is the authority of this Court on the issue of contributory negligence on the part of an employee?

MR GROSS: Your Honour, words like “lenience” or “indulgence” are not used, although one sometimes finds them referred to loosely in text books, but, your Honours, can I put what, in our submission, is the position as to the circumstances which the jury were obliged to take into account as part of the comparative process which is inherent in allocation of responsibility. Your Honours, the system of work involved lifting dangerously excessive weights without adequate mechanical or manual assistance but that method was chosen by the defendant without any pressure of events or other mitigating circumstances upon it and with the safe alternatives which were simple, obvious and well known, simply being ignored for no good or obvious reason, which can either be inferred or which the defendant gave or extracted evidence.

By contrast, the plaintiff’s decision to change the method given to him was made under pressure of the physical discomfort and difficulty which he experienced while doing the work and to avoid excessive bending when he had no power, means or opportunity himself to provide the safe alternative which was required, namely, mechanical or extra manual assistance which would reduce his share of the weight below accepted limits.

Your Honours, we would add to that analysis that, on Mr Simpson’s evidence, back fatigue and discomfort, therefore, symptoms, from bending, could be expected from the repetitive performance of the work using the defendant’s specific - or the foreman’s specific method, and therefore one can add to that that, in effect, the plaintiff is escaping from a perceived risk of injury, not of a serious dimension, but at the time, but nevertheless where he does not have any other way of escaping from that particular potential, not only inconvenience, but risk of injury.

The second matter we put is that the change in method made by the plaintiff was merely a variant of an inherently unsafe system of work where both methods had, as a constant and continuing unreasonable risk factor, the sheer weight of the bar which, on either scenario, the plaintiff was obliged to lift without mechanical manual assistance, which would reduce his share of the weight to a safe level. So that he is making a change after he has experienced the difficulties; the defendant’s fault, nevertheless, is a constant and continuing factor in the comparison equation.

The third matter we would put is that there was no legitimate justification for the defendant as a reasonable goal or going to be achieved by it in having the plaintiff lift excessively heavy weights without the requisite assistance, whereas the plaintiff on Mr Dawes’ evidence was seeking not only to decrease his discomfort caused by excessive bending, but presumably improve the performance of the work and productivity. So that on the authorities, the fact that it is something done by the plaintiff in the defendant’s interest is something to be weighed into the equation as part of the circumstances.

The fourth matter we would point out is that the defendant had not merely a responsibility in relation to the system of work and the provision of proper equipment but also probably a higher and certainly not inferior capacity to be aware of the applicable standards of industrial safety regarding heavy lifting and the extent to which the weight of the bar which was to be borne by the plaintiff on either scenario exceeded those safe limits. So you have the superior knowledge of the defendant on the undisputed evidence.

The fifth matter is that the plaintiff, as Justice Brownie pointed out, and we are making this point in the context of contributory negligence qua the plaintiff’s own fault itself, the plaintiff’s deviation from the defendant’s proposed method was foreseeable given the postural strains which he had been exposed to and which he reported he was experiencing in performing the work.

Your Honours, we would add a number of matters if we may, and I appreciate these are frequently stated in the authorities and are basically evident. In carrying out the apportionment task, the nature of the duty owed by the tortfeasor is relevant and here you have an established employer/employee relationship. Secondly, the number of acts of fault or negligence committed by the tortfeasor and the duration of time over which it occurs is relevant and we would submit in this case the plaintiff’s deviation, on Mr Dawes’ evidence, only lasted for five or ten minutes.

The third matter we would point out is that it is inappropriate, having regard to this Court’s decisions in relation to causation, to focus too closely upon the temporal sequence, that is that the plaintiff himself is, as it were, the last person who makes some relevant change to the pre-injury situation, and we would submit that it is rather the quality of the acts which have to be looked at regardless of their sequence in time. We would also add that in the present situation the defendant’s negligence and that of the plaintiff are both continuing, so it is not as though the plaintiff comes along and, as it were, makes some change which debases the defendant’s causal contribution or their blameworthiness.

We would submit that it is necessary to relate the contributory negligence to the negligence found and, of course, the usual cases about what occurs when you have a contributory negligence which is a manifestation of the unsafe system. Just on the question of unsafe system, it is evident that that was the language that was used in the case. What you have is a failure to provide proper equipment and that is often treated as being a separate heading but, nevertheless, it is unsafe system not to have the proper equipment.

We would submit that the jury would have been obliged to look at is the margin of extra risk which the plaintiff must be taken to have exposed himself to. We are not looking at the totality of the risk which the plaintiff exposed himself to just by considering the particular or ultimate method in isolation. There is plainly a risk of injury in the defendant’s method, that is the bending over, as Mr Simpson said, and he was not challenged in relation to that. So, the question that had to be asked by the jury was, to what extent the plaintiff acted unreasonably in choosing to do it a different way and whether the plaintiff should have appreciated that to vary that method involved a significant extra risk, bearing in mind that even if one can allow for the fact there is more risk in bending over to pick up something rather than crouching over a stationary object and performing some rotation task which themselves involved lifting, the plaintiff had to compare 30 seconds or one minute per hour of the lifting and bending activity with the other period of time which was somewhere between 90 to 95 per cent of his time when he is crouched over the stationary object.

Now, if the plaintiff makes a judgment on that the best one can say is that we have a misjudgment or we have a mistake by the plaintiff in weighing the various risks. So that on that analysis we submit that the Court of Appeal outcome can be fully justified.

KIRBY J: Now, Mr Gross, the difficult step in this case – speaking for myself – is the first step, but once you take the second step, and the Court of Appeal is in the business of making its own decision, it would make that decision against its knowledge of the authority of this Court on the question of what can be expected and what is contributory negligence in an employment situation.

MR GROSS: Yes.

KIRBY J: Now, what is the authority on that? What are the cases that lay down the principle that it is not momentary inadvertence on the part of an employee and it is not reasonable steps that he takes, however misguided and so on? I know them generally, but what is the leading and most recent authority on that?

MR GROSS: Your Honour, we have set them out, I think ‑ ‑ ‑

McHUGH J: Most of them are set out in paragraph 6.13 of your submissions, I think.

MR GROSS: Yes. I do not think we have got every authority but I think all of the prominent cases on that question – certainly from this Court – we have listed in our submissions on that.

Your Honours, in the end we would submit that, although the jury does not come to its task aided by knowledge of what the courts have said about contributory negligence in cases like this, nevertheless the requirement of the jury was to act reasonably having regard to the evidence which they did accept.

In our submission, it is evident that they accepted Mr Dawes’ evidence. However, taking Mr Dawes’ evidence at its highest, it still becomes, in our submission, unreasonable in the relevant sense for a jury to find that the plaintiff was more blameworthy than the defendant in the circumstances and that his fault exceeded by 20 per cent the fault of the defendant. We would submit that once that conclusion is reached – and it is a conclusion the Court of Appeal could legitimately reach – it cannot be said that the Court of Appeal in the exercise of its own appellate discretion has failed to correctly exercise the undoubted powers that it has. Your Honours, I think that completes my submissions.

GLEESON CJ: Thank you, Mr Gross. Yes, Mr Toomey.

MR TOOMEY: Your Honours, my learned friend began by saying that he wanted to correct three errors of fact I had made. I got up to one and did not get any further, but that one is the foundation to a large extent of my learned friend’s submissions. He said that I had incorrectly said that there was no risk of injury from painting the girder on the ground and he said that Mr Simpson had said that, indeed, there was. I invite your Honours to look at the passage he relies upon at page 54, line 20:

Q. Is that a safe way of effecting the cleaning and painting of these rails, in your opinion?
A. In answering that I really must make two assumptions. One on how the rail got there –

that is, on the timber on the ground –

and one on whether it’s just a one off situation or whether it’s repetitive in any way. On the assumption that there’s more than one to be done I would say these – the potential is for it to be very fatiguing of back muscles and causing backache and secondly, the positioning of the rail on the floor must be carried out by some means and if that’s done manually down the floor level then the risk, in my view, is even greater than it would be onto the stillages or scaffold as I think it’s been referred to.

Now, that assumes manual handling of the girder. There is no evidence and there was no evidence from the plaintiff that the cleaning of the girder on the dunnage, which was the employer’s system, required any manhandling of the rail on the dunnage. Furthermore, one would have to say, how could you manhandle a newly painted rail, turning it over from one side to another, without getting paint smeared all over the place? So one would have to assume that the lifting hooks would be used in the holes in the girder to manipulate the girder.

McHUGH J: But there is some ambiguity about the answers, is there not? He is asked:

Is that a safe way of effecting the cleaning and painting of these rails, in your opinion?

He says at line 24:

On the assumption that there’s more than one to be done I would say these – the potential is for it to be very fatiguing of back muscles and causing backache –

Now, when your opponent got to his feet, he read that as a reference to the cleaning and painting.

MR TOOMEY: Yes.

McHUGH J: I gather you argue that it is not in relation to the cleaning and the painting, that it is in relation to the lifting?

MR TOOMEY: Yes, but, your Honour, may I just say this: it is the manual lifting because Mr Simpson had only been asked to advise on handling these things manually. He had not been asked to advise on the hooks at all, and you will remember that at the top of page 56 ‑ ‑ ‑

GLEESON CJ: He had been asked to advise on the basis of the plaintiff’s version of what happened.

MR TOOMEY: Precisely so, your Honour, and when it was put to him at the bottom of page 55:

Q. So that if a device, such as what you’ve been saying, if hooks had been provided…..but the idea of providing a hook so that the man can stand close to upright and that way there’s little stress placed on the lumbar spine?
A. Yes.
Q. And that’s a very satisfactory way, isn’t it, of reducing the risk of injury to the lower back?
A. Yes.

So it is not left, as my learned friend says it is, with Mr Simpson saying that what the plaintiff was trying to obviate, the discomfort and so on, carried some physical risk to it. We are talking about discomfort.

KIRBY J: Yes, but prolonged discomfort for 95 per cent of the time at work, it is just possible that a person might try to do something to reduce that.

MR TOOMEY: Well, your Honour, it is also, with great respect, open to the jury to say to themselves, “Well now, look, what is to stop him getting down on one knee and painting on one knee? What is to stop him getting some cloth or something, on both knees, or even sit on the ground? Why does he have to bend over for hour after hour?” He does not. This is a matter peculiarly within the area of judgment and knowledge of a jury as, with respect, your Honour Justice Callinan said. But what the Court of Appeal have done is say, “We know better than the jury”. That is what they have said.

KIRBY J: No, they say, “We know the authority of the High Court of Australia as to what is expected of employers and what is expected of employees”.

MR TOOMEY: Your Honour, with great respect, they have said, “On these facts, we think that we know better than the jury”. They did not see the witnesses. They did not, in our respectful submission, take proper account of what Dawes said about the fact that using the hooks, it was an easy job, that it was only hard when you started to manhandle. They did not take account, we would say, of the fact which Mr Gross seeks to take advantage of, that is the five to ten minutes after changing the system before he injured his back. Mr Gross says, “Oh well, in effect, he was only negligent for five or ten minutes”.

What that argues is that the method he chose was so dangerous that within five to ten minutes he had seriously injured his back. How obvious must that not have been, to lift, bending your back against the direct instructions of your employer, in a manner which injured you seriously in five to ten minutes.

McHUGH J: The point is that those authorities, the authorities that are referred to in 6.13 in the submissions of the respondent, are directed to the question whether there is contributory negligence, but once you find contributory negligence, they have nothing to say about that. The issue then is, what is the proper apportionment of the damage? You have to apply the just and equitable apportionment having regard to the responsibility for the damage and this Court of Appeal said this jury was perverse when they said it was just and equitable to apportion 60 per cent of the responsibility to the ‑ ‑ ‑

KIRBY J: Perverse because it postulated the use of the human spine in a way that exposed this man to lifting, and lifting over 20 kilograms more than he ought, and to constantly be in a position of discomfort where it was just possible that an Australian worker would try to get himself into a position of less discomfort 95 per cent of his work time.

MR TOOMEY: Such as putting one knee on the ground so that he was not bending his back to cause discomfort. I would have thought an Australian worker, showing the sort of initiative that he should have, would have done something like ‑ ‑ ‑

McHUGH J: What probably told most heavily from the jury’s point of view is that he had been specifically told he was doing it the wrong way, not to bend your back, bend your knees and that is the very thing he ‑ ‑ ‑

KIRBY J: Yes, that means that every employer that tells a worker in Australia that has to lift 20 kilos more than he should and to bend himself all day, every day, for 95 per cent, “Do not bend your back”, that that is the end of his case, or he sounds in 60 per cent contributor to negligence.

MR TOOMEY: Your Honour, with great respect, no. What this worker did was to adopt a particularly dangerous method of doing something when he did not have to do it, and contrary to his instructions. I mean, your Honour said something about the nursemaid method: may I remind your Honour that in one of the English cases it is referred to as the “idiot child theory of industrial relations”. That is, that an employer must stand over his employee all the time, rather than telling an experienced, knowledgeable workman, “Do not do that, do this”, and expecting that he will have the sense to do what he is told because it is said to him for his own safety obviously.

McHUGH J: Well, in Smith v Austin Lifts Lord Simonds said the relationship between employer and employee is not that between trained nurse and imbecile child.

KIRBY J: That is in the 1950s.

MR TOOMEY: Yes, that is right, yes. Can I say just one thing. your Honour Justice McHugh said to Mr Gross, “Now, if it were 50:50 you

would be in real trouble”. Now, in our respectful submission, if your Honour thinks 50:50 would have been all right, your Honour must think 60:40 is all right because that has to be within the jury’s discretion. That is what your Honour thinks. If the jury thought 60:40, that must be within the jury’s discretion or we might as well get rid of juries. May it please your Honours.

MR GROSS: Your Honours, by leave, can I just identify what were the three matters I referred to. I got deflected from my count, but I have dealt with them in submissions, but the first one was that Mr Simpson said bending was the real problem; the second one was that the plaintiff did not put a case of negligence on either scenario at trial, that is, whichever way you do it, it is still negligent; and thirdly, that Justice Brownie, in categorising negligence in the Court of Appeal, treated it merely as failure to anticipate the plaintiff’s change in method, in effect, or anticipate his inadvertence to risk in doing so. I do not wish to address on those matters, but I did deal with those matters during my submissions.

GLEESON CJ: We will reserve our decision in this matter.

AT 4.17 PM THE MATTER WAS ADJOURNED

[2000] HCATrans 437

Key Legal Topics

Areas of Law

Civil Procedure

Contract Law

Legal Concepts

Appeal

Jurisdiction

Res Judicata

Abuse of Process