Pye, Kenneth v Butterfields Cheese Factors Pty Ltd

[1997] FCA 1168

FEDERAL COURT OF AUSTRALIA

NEGLIGENCE - Duty of care as between employer and employee - Reasonable foreseeability of damage - Injury to employee’s back while lifting 8 kilo parcel of cheese packs - Employee had prior history of back problems but this not known to employer - No instruction on lifting techniques given to employee - Whether employer failed to provide a safe system of work.

KENNETH PYE v BUTTERFIELDS CHEESE FACTORS PTY LIMITED
AG11 of 1997

JUDGES:      WILCOX, MILES and R D NICHOLSON JJ
PLACE:        CANBERRA
DATE:          31 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG11 of 1997

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	KENNETH PYE Appellant
AND:	BUTTERFIELDS CHEESE FACTORS PTY LIMITED Respondent

JUDGES:	WILCOX, MILES AND R D NICHOLSON JJ
DATE:	31 OCTOBER  1997
PLACE:	CANBERRA

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The appellant pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG11 of 1997

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	KENNETH PYE Appellant
AND:	BUTTERFIELDS CHEESE FACTORS PTY LIMITED Respondent

JUDGES:	WILCOX, MILES AND R D NICHOLSON JJ
DATE:	31 OCTOBER  1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

THE COURT:   This is an appeal from a decision of Gallop J, in the Supreme Court of the Australian Capital Territory, entering  judgment in favour of the defendant, Butterfields Cheese Factors Pty Limited, in an action for damages for negligence brought by a former employee, Kenneth Pye.  Mr Pye claimed he suffered a back injury on 17 June 1993 when lifting an eight kilogram parcel of cheese packs. 

This was not the first time Mr Pye had sustained an injury to his back.  In 1984, at the age of only 21 years, he had hurt his back while moving a map cabinet at work.  On 8 March 1985 a laminectomy was performed but it brought no improvement and, on 14 June 1985, he had a fusion operation at the level of  L5 S/1.  That operation was followed by a second fusion operation on 24 April 1986 and a calcification procedure in 1988.  Apparently, Mr Pye eventually made a good recovery and was able to work in a variety of employments before he commenced with Butterfields in January 1993.

The trial Judge noted that counsel before him agreed there were two real issues in the case:

“One, whether the defendant knew of the compromise of the plaintiff’s back condition prior to 17 June 1993; two, whether it was unsafe to require the plaintiff to lift and move around a weight of 8 kilos, as he did, noting that the defendant reserves the right to argue the plaintiff’s experience and knowledge of safe lifting practices and actual instruction of the plaintiff is not alleged by the defendant.”

It is clear from the pleadings, the transcript and the trial Judge’s reasons that the appellant’s case was conducted on the basis that the first issue was  the major element in the  case.  In par 6 of his Statement of Claim the appellant alleged he informed the respondent “of the nature and extent of his pre-existing back injury” on two occasions prior to being offered employment by it; one of these occasions being at a formal job interview.  In par 7 he alleged the respondent appointed him to the position of sales representative with knowledge of these matters.   In relation to 17 June 1993 he alleged that, as the respondent’s sales representative, he “was required to load 10 kilogram boxes of the Defendant’s product into the Defendant’s refrigerated truck whereupon he sustained a severe injury to his lumbar spine”.  Paragraph 9 made a general allegation of negligence but contained particulars including “failure to have any or sufficient regard to the appellant’s pre-existing disability” when appointing him a sales representative and allocating duties to him.  There was also an allegation of “(f)ailure to warn the Plaintiff of the dangers attendant upon his carrying out his duties for the Defendant” and “(f)ailure to provide a safe system of work for the Plaintiff”.  The trial Judge read the last two particulars as making a case independent of the appellant’s allegation that the respondent knew about his pre-existing injuries.

The trial Judge found against the appellant on the first issue.  He held the appellant did not disclose his pre-existing injuries prior to 17 June 1993.  That finding is not challenged.  It follows that, subject to one matter, we must approach the case on the basis that, prior to the events of 17 June 1993, Butterfields was not aware of Mr Pye’s back problem, and was entitled to regard him as a fit and healthy 31 year old. 

The qualification just mentioned arises out of a suggestion made to us that Butterfields acquired some relevant knowledge between Mr Pye’s commencement of employment and 17 June 1993.   The suggestion is based on a statement included in Butterfields’ report of the subject injury to its workers’ compensation insurer.  In that report, Butterfields’ New South Wales General Manager, Mr Gilder said:  “Ken made a statement to me on 3/6 that his back was a bit sore and implied it was from his work.  I am surprised that lifting Butterfields’ product could cause such damage as it is rare that more than 5k would be lifted at one time”.  Counsel for Mr Pye say this demonstrates an awareness by the respondent, at a high level, on 3 June 1993, that Mr Pye had a problem with his back; so the respondent should thereafter have regarded him as particularly vulnerable. 

We think that submission puts the matter too high; a statement by a person that his back is “a bit sore” is hardly adequate to put an employer on notice of special vulnerability.  No evidence was given about the conversation on 3 June.  Mr Pye did not remember it, or the circumstances that gave rise to any conversation with Mr Gilder; Mr Gilder was not called. The state of the evidence before the trial Judge was such that, even given the note on the report, we agree with his conclusion that the question whether the respondent breached its duty of care to the appellant must be considered on the basis that the respondent was not aware prior to 17 June 1993 that Mr Pye had ever suffered a significant back disability or was specially vulnerable to back injury.

Fundamental to the appellant’s case on the second issue is some evidence given by David Keldie, Butterfields’ national General Manager, and former New South Wales manager.  Mr Keldie was asked about the system of work when he became State Manager in 1992:

“And that system involved, did it not, loading and unloading materials, sometimes very small materials, basically stored on the floor of these vans?---Yes.

It involved a lot of bending and twisting, picking them up and taking them out and replacing them, didn’t it?---Yes.

And you were aware of that?---Yes.

And it involved, in the nature of rotation of goods, reaching across other goods to get goods on the far side of the van on occasions?---On occasions, yes.

Yes, you didn’t rotate - when you talk of rotation of fresh food, in this situation, you don’t talk of emptying the whole of the van out to get something from the other side, do you?---No.

No.If you have to rotate something that’s against the far wall, then you have to reach over and get it?---Yes.”

Mr Keldie said he had done the job himself and assessed it; he did not need to get advice about it.  Mr Keldie later gave this evidence:

“Did you pay any attention to any safety aspects of loading and unloading or rotating stock in or out of the van?---Yes.

What?What attention did you pay?---In the orientation that Mr Pye would have undertaken with Mr Skelly, he would have been shown how to lift goods into the vehicle.

You mean this was something that you’re certain of  because it was something you were responsible for in your rejuvenation of the company?  Is that correct?---It was a standard practice.

But it only became a standard practice after you arrived, is that right?---Well, I can’t speak for the manager before me.

Well, was it a practice before you arrived or not?---No.

No.So you instituted this system?---Yes.

You instructed all of the supervisors, including Mr Skelly, to make sure that people understood about how they should lift.  Is that right?---Yes.

And how did you instruct Mr Skelly in this process, Mr Keldie?---We discussed it at one of these meetings.  We spoke about the need to ensure that people didn’t lift too much weight, bent their knees, general stuff.  It’s not that complicated.

All right.When you say discuss it, you mean you informed these people - you instructed the people who were there - your inferiors in the organisation that this is what they should do?---Yes.

And they included Mr Skelly?---Yes

... Where did you get this information concerning lifting that you imparted to these people?---It was pretty basic information from my head.  It didn’t come from a course or anything.”

Counsel for the appellant argue that Mr Keldie’s evidence amounts to an acknowledgment that the work to be performed by employees in the position of Mr Pye involved risks that needed to be obviated by proper instruction and adequate warnings.  They say neither was offered to their client so that the failure of the defendant to eliminate a reasonably foreseeable injury by provision of appropriate instruction gives rise to liability.  Counsel cite  Abalos v Australian Postal Commission (1990) 171 CLR 167 at 180 and O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229, cited in Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 at 615-617.

Turning to the evidence, Mr Pye said nobody gave him any instructions about lifting; this was not disputed.  Mr Skelly gave evidence that he gave no such instruction to Mr Pye.  Mr Pye spent about four days learning the job in Sydney with a salesperson named Ian Fairweather. Mr Fairweather was not called.  

However, in evaluating the evidence of non-instruction, it is necessary to note there is no evidence as to Mr Pye’s manner of lifting during his period of training.  It is possible he lifted in a sensible way, and Mr Fairweather noticed this and thought it unnecessary to offer advice or instruction.  The principles of careful lifting are fairly well known.  They are set out in a brochure published by the Workcover Authority of New South Wales that was tendered in evidence in this case (but only as an appendix to the appellant’s expert’s report prepared on the basis that the respondent should have paid particular attention to lifting technique instructions because it knew the appellant had a previous back injury).  A wall chart  about proper lifting was exhibited at Butterfields’ Sydney premises.  Given his history of back injury, it is  possible Mr Pye received instructions about lifting techniques, at some stage, before he commenced with Butterfields. None of these matters was investigated at the trial; the case being conducted as one involving knowledge of the existence of a vulnerable condition in the appellant. 

As indicated, the parcel being lifted by Mr Pye at the time of his injury weighed 8 kilos.  No expert evidence was offered to the effect that a lift of this nature represented a hazard against which an employer, acting reasonably, would be obliged to take precautions by way of instruction or warning.  Nor is this obvious from common sense and experience.  An 8 kilo burden is relatively light; weights of that order are routinely borne in household activities.  According to a tendered document entitled “Acceptable Weights of Lift”, the optimum weight for males, from floor level to knuckle height, as here, varies from 23 to 29 kilos, depending on the distance between the centre of gravity of the object and the body.  Maximum weights vary from 29 to 37 kilograms.

The appellant seeks to fill the evidentiary void by relying on Mr Keldie’s admission.  That is a legitimate course; Mr Keldie had practical  experience of the job and the products required to be handled by sales people.  But proof by admission can never rise above the terms of the admission itself.  The relevant evidence has already been set out.  Mr Keldie’s acknowledgment of the need for instruction was in these terms:  “he would have been shown how to lift goods into the vehicle”.  It is not clear that, in making that statement, Mr Keldie was referring to individual 8 kilo packs; he may have had in mind a heavier load comprising numerous packs.  He was certainly not referring to a movement to pick out an individual pack that was already within the vehicle.  On none of these matters was he cross-examined, the trial being conducted with a different focus. 

Ultimately, it seems to us, the case comes down to a matter of judgment.  As was said by Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 309:

“in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take.”

Mr Pye sustained his injury when he stood at the open door of his van and reached across other stock to lift out the 8 kilo parcel of cheese.  There is nothing to suggest this was an operation likely to cause risk to an apparently fit 31 year old man.  This was not an act which gave rise to any reasonably foreseeable risk of injury.  In fact the appellant was at risk; but this seems to have been because of his pre-existing back condition, and was not because of anything known to the respondent.

The appeal should be dismissed with costs.

I certify that this and the preceding seven (7)
pages are a true copy of the

Reasons for Judgment of the Court.

Associate:

Dated:            31 October 1997

Counsel for the Appellant:                 M L D Einfeld QC and D R Campbell         
Solicitors for the Appellant:               Verekers
Counsel for the Respondent:             R Bartlett QC and R Refshauge
Solicitors for the Respondent:  Deacons, Graham & James
Date of Hearing:  27 October 1997
Date of Judgment:  31 October 1997