Parsons v J.J. Richards & Sons Pty Limited - [2008] NSWCA 331

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Parsons v J.J. Richards & Sons Pty Limited [2008] NSWCA 331

FILE NUMBER(S):
40539/07

HEARING DATE(S):
27 October 2008

JUDGMENT DATE:
2 December 2008

PARTIES:
Frederick Michael Parsons (Appellant)
J.J. Richards & Sons Pty Limited (Respondent)

JUDGMENT OF:
Beazley JA Gyles AJA Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2607/06

LOWER COURT JUDICIAL OFFICER:
Balla DCJ

LOWER COURT DATE OF DECISION:
9 August 2007

COUNSEL:
LT Grey (Appellant)
PJ O'Connor (Respondent)

SOLICITORS:
Slater & Gordon (Appellant)
Ellison Tillyard Callanan (Respondent)

CATCHWORDS:
TORTS
negligence
where employee garbage collector sustained severe back injury whilst dragging fallen heavy garbage bin in order to remove driveway obstruction
where employee aware of weight of garbage bin
where certain directions given to employees by employer concerning clean-up of spillages and removal of obstructions and movement of heavy garbage bins
whether directions given sufficient

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Harrison v Lau Nay Nominees Pty Ltd t/as Abs Transport [2004] NSWCA 18
Herning v GWS Machinery Pty Ltd [2005] NSWCA 263
McLean v Tedman (1984) 155 CLR 306
O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225
Turner v The State of South Australia (1982) 42 ALR 669; 56 ALJR 839

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40539/07
BEAZLEY JA
GYLES AJA
HISLOP J
Tuesday 2 December 2008

Frederick PARSONS v JJ RICHARDS & SONS PTY LIMITED

Judgment

BEAZLEY JA: I have had the advantage of reading in draft the reasons of Gyles AJA.
The facts and the reasons of the trial judge are fully set out in his Honour’s reasons and it is not necessary to repeat them. I have, however, come to a different conclusion in respect of liability from his Honour, in respect of which I am able to express my views briefly.
In Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349 the High Court reiterated the well-known principles governing an employer’s duty of care. The Court said, at [12]:
“The appellant relied in this Court on these basic general principles. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury (Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J). If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards (Smith v The Broken Hill…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 331
Decision Date: 2 December 2008

CaseChat Overview and Summary

In *Parsons v J.J. Richards & Sons Pty Limited*, the appellant, an employee garbage collector, appealed a decision of the primary judge who had dismissed his claim for damages for a severe back injury sustained while dragging a heavy garbage bin that had fallen from his truck. The appellant argued that his employer had failed to provide adequate directions and procedures to prevent such injuries.

The central legal issues before the Court of Appeal were whether the employer had breached its duty of care to the appellant by failing to implement sufficient safety measures concerning the movement of heavy garbage bins, and whether the directions and procedures provided by the employer were reasonable in the circumstances. Specifically, the court considered whether the employer should have provided an unequivocal directive that employees should not attempt to move heavy bins themselves, or if the existing procedures, which included instructions not to lift anything too heavy and methods to summon assistance or report issues, were adequate.

The Court of Appeal, comprising Beazley JA, Gyles AJA, and Hislop J, found that while the primary judge may have erred in some factual findings regarding the cause of the bin falling, this error did not affect the ultimate outcome. The primary judge had accepted that heavy bins were dropped from garbage trucks from time to time and that the appellant knew he could not lift the bin but attempted to drag it. The court agreed with the primary judge that it was unrealistic to suggest that employees should not play any role in assessing and moving heavy bins, as a worker would always need to make an assessment of weight. The existing procedures, which the appellant had not followed, were considered reasonable, taking into account the employer's duty of care.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There was no evidence called as to other injuries caused in a like manner with this employer, or anybody else in this Shire or, indeed, elsewhere. Decision of primary judge The primary judge rejected the principal submission put on behalf of the appellant in the following manner:“This submission is based on a number of factual matters which have not been proven. Most importantly the plaintiff has not shown that it was the weight of bins that caused them to fall either on this occasion or other earlier occasions. Moisture appears to be a factor. The plaintiff’s expert said that he could not express an opinion about the issue without being given the detailed documentation of the design. In addition the plaintiff did not say that he decided to drag the bin because he was in a hurry or because he did not want to inconvenience another driver. The effect of his evidence was that he knew he could not lift the bin but thought he could drag it.It is accordingly not possible to conclude from the evidence how often heavy bins were dropped by the garbage trucks. I accept it must have occurred from time to time. The issue is accordingly whether the plaintiff should have been given the unequivocal directive suggested by counsel for the plaintiff or whether the directives which were given by the first defendant and the accompanying procedures (i.e. being told not lift anything too heavy and providing a method by which to summon other drivers or report to head office) was sufficient.The submission made by counsel for the plaintiff is based on the premise that an employee should not play any role in deciding whether to try and move a heavy bin. However I am not persuaded that in practice this is a realistic proposition. It was not suggested that all bins should be left where they fall, but that a bin which appears heavy should not be moved. This means that at some stage a worker has to make an assessment of the weight of a bin. Accordingly a person on the position of the plaintiff will always have to make a decision.The issue from this point is whether the procedures put in place, which the plaintiff did not follow, were reasonable taking into account the high duty of care placed on employers. I am satisfied that they were.”Ground 1 of the grounds of appeal – the trial judge erred in finding that the appellant had not shown that it was the weight of bins that caused the fall from the pincers of the garbage truck. Counsel for the appellant has criticised the first portion of the reasoning dealing with the question as to whether the weight of the bin caused the fall. There is substance to the criticism. There was no evidence of moisture being present on this occasion. Next, the passage of evidence from the appellant which is the basis for the finding does not amount to denying that weight alone would cause failures to lift on occasions, although problems caused by moisture were most common. However, the trial judge did accept that heavy bins were dropped from the garbage trucks from time to time. Furthermore, the trial judge did not find that there was no duty upon the employer to cater for that foreseeable situation. Thus the error, if there be one, has no probative effect.Ground 2 – the trial judge erred in rejecting the submission that the dropping of heavy bins was a problem which the respondent had failed to address adequately.

Ratio Decidendi

Legal Principle Established

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