Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre; Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Coles Supermarkets Australia Pty Ltd

[2020] NSWCA 206

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre; Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd [2020] NSWCA 206

Hearing dates:

22 July 2020

Decision date:

04 September 2020

Before:

Leeming JA at [1];
Emmett AJA at [213];
Adamson J at [225].

Decision:

In each of CA 2019/297428, CA 2019/298538,

CA 2020/55981, CA 2020/55990, appeal dismissed with costs.

Catchwords:

TORTS — Negligence — appellant worker injured whilst working on respondent’s premises — evidence at first instance that risk of injury could have been avoided by provision of a ‘pick stick’ — primary judge found respondent company had discharged duty of care and was not negligent — whether primary judge erred in failing to address case put by the parties — whether primary judge erred in failing to find non-provision of pick stick was negligent — whether respondent company was negligent — whether any contributory negligence

CONTRACTS — cross-claim on labour-hire agreement between appellant and respondent corporations — where primary judge ordered nominal damages — whether damages ought to have been awarded for costs expended in defending claim

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E, 5R, 5S

Civil Procedure Act 2005 (NSW), s 56

Criminal Procedure Act 1986 (NSW), s 133

Legal Profession Act 2004 (NSW)

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), rr 36.1, 36.16, 51.29

Work Health and Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW), Pt 5, Div 3, ss 151H, 151I, 151J, 151K, 151L, 151M, 151Z

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310

Anderson v Eric Radio & TV Pty Ltd (1965) 114 CLR 20; [1965] HCA 61

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

BanqueCommerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11

Berry v CCL Secure Pty Ltd [2020] HCA 27

Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167

Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183

Coles Supermarkets Australia Pty Ltd v Ready Workforce (a Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140

Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Coopers Payen Ltd v Southampton Container Terminal Ltd [2004] 1 Lloyd’s Rep 331; [2003] EWCA Civ 1223

Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60

Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839

Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70

Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31

Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410

Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151

Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 323 ALR 639

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151

Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Keith v Gal [2016] NSWCA 152

March v Stramare(E & M H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60

Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Monarch Steamship Co Ltd v KarlshamnsOljefabriker(A/B) [1949] AC 196

Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161

O’Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11

Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768

R v Associated Northern Collieries (1910) 11 CLR 738; [1910] HCA 61

R v Birks (1990) 19 NSWLR 677

R v Hall (1988) 36 A Crim R 368

R v Klamo (2008) 18 VR 644; [2008] VSCA 75

Robinson v Harman (1848) 1 Exch 850; 154 ER 363

Saffron v SocieteMiniereCafrika (1958) 100 CLR 231; [1958] HCA 50

Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35

Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471

Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

J Edelman, McGregor on Damages (20th ed, Sweet & Maxwell, 2018)

Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (2nd ed, 1979, Law Book Co.)

Review of the Law of Negligence: Final Report (Commonwealth of Australia, August 2002)

Category:

Principal judgment

Parties:

Matthew Smith (Appellant in 2019/298538)
Coles Supermarkets Australia Pty Ltd (Appellant in 2020/55981 and 2020/55990; respondent in 2019/297428 and 2019/298538)
Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Appellant in 2019/297428)
Chandler Macleod Group Ltd (Respondent in 2020/55981 and 2020/55990)

Representation:

Counsel:
M Cranitch SC, R Wathukarage, S Blount (Matthew Smith)
G Parker SC (Coles Supermarkets Australia Pty Ltd)
J Catsanos SC (Ready Workforce (A Division of Chandler Macleod) Pty Ltd)
A Cheshire SC (Chandler Macleod Group Ltd)

Solicitors:
Law Partners Personal Injury Lawyers (Matthew Smith)
Holman Webb Lawyers (Ready Workforce (A Division of Chandler Macleod) Pty Ltd)
McCulloch & Buggy Lawyers (Coles Supermarkets Australia Pty Ltd)
Colin Biggers & Paisley (Chandler Macleod Group Ltd)

File Number(s):

2019/297428; 2019/298538; 2020/55981; 2020/55990

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Date of Decision:

28 August 2019

Before:

Gibb DCJ

File Number(s):

2017/116745

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant in the first matter, Matthew Smith, had sued based on an injury to his back by lifting a carton whilst working at a warehouse operated by Coles Supermarkets Australia Pty Ltd. Mr Smith was employed by the appellant in the second matter, Ready Workforce (A Division of Chandler Macleod) Pty Ltd. Ready Workforce paid workers compensation for Mr Smith’s back injury. Mr Smith sued Coles in negligence. Ready Workforce sued Coles pursuant to s 151Z of the Workers Compensation Act 1987 (NSW). Coles cross-claimed against Chandler Macleod Group Pty Ltd arguing that any liability it incurred was the subject of a contractual indemnity, or else was recoverable as damages for breach of contract.

The proceedings were heard together in the District Court. During the trial, evidence was given for the first time that Coles had not provided Mr Smith with a ‘pick stick’, an implement which could be used to drag objects closer to a worker. The primary judge ordered judgment for Coles on Mr Smith and Ready Workforce’s claims. The primary judge found that Coles had not been negligent because the injury had been caused as a result of Mr Smith’s own failure to adopt the proper lifting technique, and that whether Mr Smith had access to a pick stick was irrelevant. The primary judge also ordered judgment on the cross-claim in favour of Coles and awarded nominal damages of $100.

On appeal, Mr Smith and Ready Workforce challenged the primary judge’s finding that Coles had not been negligent. Both appellants argued that the primary judge had not considered whether Coles had failed to provide a system of work that would avoid the risk that a worker would lift cartons improperly in circumstances where the carton could not easily be accessed. The appellants particularly relied on the absence of pick sticks being provided to workers at the warehouse as amounting to breach. Additionally, Coles appealed from the assessment of nominal damages on its cross-claim, claiming that it was entitled to damages for the irrecoverable costs it incurred in defending each action.

The primary issues in the appeal were:

(i) whether the pleadings and particulars of negligence permitted the plaintiffs in the Court below to rely on the absence of pick sticks as amounting to breach of a duty of care;

(ii) whether the absence of pick sticks amounted to a breach of duty such that the plaintiff had established its claim of negligence;

(iii) whether Coles was entitled to damages for the costs it had incurred in defending the proceedings.

The Court of Appeal, by majority (Leeming JA and Emmett AJA), dismissed the appeals brought by Mr Smith and Ready Workforce. The Court unanimously dismissed the appeal brought by Coles.

As to issue (i):

Per Leeming JA (Emmett AJA agreeing at [224]):

1. The absence of pick sticks was not pleaded or particularised as part of the plaintiff’s case. There was no error on the part of the primary judge in regarding the use of pick sticks as irrelevant insofar as they were outside the pleaded case: [98]-[99].

2. Pleadings in such a case ought to descend to the things which the plaintiff must prove if they are to obtain judgment, including the precautions which a reasonable person in the position of the defendant would have employed: [100].

Per Adamson J (dissenting):

3. The case based on the absence of pick sticks was within the pleadings and particulars of negligence: [281], [284], [287].

4. Coles was bound by its forensic decision to adduce expert evidence that, had a pick stick been used, the accident could have been avoided. Thus, the use of pick sticks was within the ambit of the case in the way the parties conducted the trial: [287].

As to issue (ii):

Per Leeming JA (Emmett AJA agreeing at [224]):

5. The absence of pick sticks does not amount to a basis for concluding that there was a breach of duty: [101], [111]-[112].

Per Adamson J (dissenting):

6. Coles’ failure to provide pick sticks to workers at the warehouse was negligent, as established by the expert whose reports it tendered: [302]-[303].

As to issue (iii):

Per Leeming JA (Emmett AJA agreeing at [224]) and Adamson J:

7. Coles failed to establish that the irrecoverable costs it incurred in defending each action were caused by Chandler’s breach, and had failed to adduce evidence of those costs at trial: [201]-[202], [206]-[207], [336]-[337].

March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, discussed.

Judgment

1. LEEMING JA: A single judgment determining two actions has led to three appeals involving four parties.

2. Two of the appeals are closely related. Mr Matthew Smith and Ready Workforce (A Division of Chandler Macleod) Pty Ltd separately sued Coles Supermarkets Australia Pty Ltd, the occupier of a 65,000m² distribution centre at Smeaton Grange in western Sydney where Mr Smith worked. Mr Smith claimed that he was injured on 10 May 2014 while lifting a box of water bottles, located at the rear of a pallet resting on the floor. By the time proceedings were commenced, he had been paid slightly more than $100,000 in workers compensation. Mr Smith sued in negligence. His employer, Ready Workforce, sued pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) to recover the workers compensation payments it had made. Both actions were heard together, and the primary judge dismissed both.

3. Ready Workforce’s claim turned on establishing that Coles breached a duty of care owed to Mr Smith. Ready Workforce called no witnesses, and relied on the evidence adduced in Mr Smith’s case (the evidence of all witnesses, lay and expert, was treated as evidence in each proceeding). The fact that on most issues there were two counsel appearing in Mr Smith’s interest, and contrary to Coles’ interest, has some significance for some of the grounds of appeal, especially a complaint about re-examination. However, the most convenient course for the purposes of these reasons will be to focus attention on Mr Smith’s claim, and then return to that of Ready Workforce, noting that Mr Catsanos SC appeared at first instance and in this Court for Ready Workforce, Mr Parker SC for Coles, and while Mr Flett appeared at trial for Mr Smith, he was replaced by Mr Cranitch SC in this Court.

4. There are 29 grounds of appeal, not counting sub-grounds, separately raised by Mr Smith and Ready Workforce, some of which turn upon the pleadings and the conduct of the trial. The drafters of both notices might profit from reviewing McHugh J’s observation in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [70] that “[i]t is inherently unlikely that any personal-injuries action would give rise to fourteen issues ...” as well as his citation of a United States Circuit judge’s statement that where “an appellant’s brief contain[s] seven to ten points or more, a presumption arises that there is no merit to any of them”. It is unlikely that there will be 29 reasonably arguable errors in a judgment, each independently causing the wrong order to be made.

5. Another difficulty is that the reasons for judgment, delivered promptly after a 4 day trial, occupy 83 single-spaced pages in small typeface, devoid of paragraph numbers. The first 60 pages deal with the liability of Coles to Mr Smith and Ready Workforce. Her Honour’s notional assessment of damages and contributory negligence occupy 5 pages.

6. Concision and readability leads me to provide an overview of the trial which focusses upon the matter given most prominence in the appeal – the absence of “pick sticks” – before addressing the individual grounds of appeal.

7. Discrete from the foregoing, but adding to the procedural complexity, was a contractual claim between Coles and Chandler Macleod Group Ltd (the latter being distinct from Ready Workforce), advanced by separate cross-claims in each action. Coles argued that any liability it incurred to Mr Smith or Ready Workforce, including the irrecoverable costs it incurred in defending each action, was either the subject of a contractual indemnity, or else was recoverable as damages for a breach of a contract. The primary judge upheld each cross-claim, but awarded nominal damages, from which Coles has appealed. This is the third appeal which was heard concurrently in this Court. It will be convenient to delay dealing with any aspect of this (which occupied the last 17 pages of her Honour’s judgment) until the end of these reasons.

Mr Smith’s action for negligence

8. It is common ground that Coles owed Mr Smith a duty as a “host employer” which extended to taking reasonable care to avoid exposing him to unnecessary risks. None of the potential complexities considered in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 at [141]-[149] was explored and may therefore be passed over. It was not disputed that while Mr Smith’s duties did not amount to repetitive work in the sense of an operator on an assembly line, Coles also had to take into account the possibilities of thoughtlessness, inadvertence and carelessness, substantially in accordance with what was held in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12].

9. However, Coles was not Mr Smith’s employer. This had profound consequences. Mr Smith’s claim for damages was not a claim for “modified common law damages” pursuant to Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW). That meant that many of the restrictions of that Division were not applicable (see for example ss 151H-151M). It also meant that the Civil Liability Act 2002 (NSW) was not displaced by s 3B(1)(f), and thus Mr Smith’s claim for personal injury damages was governed by Part 2 of that Act. Most importantly for present purposes, Part 1A applied. Thus Mr Smith had to satisfy ss 5B and 5C in order to establish a breach of duty, and ss 5D and 5E to establish causation. Although there can be a tendency to equate the tests for breach and causation at common law with the requirements of ss 5B-5E of the Civil Liability Act, they are distinct. Breach at common law reflects the formulation in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12; sections 5B and 5C modify the position including, most relevantly for this appeal, by insisting in all cases where the breach of duty arises because of a failure to take a precaution against a risk of harm that the plaintiff show that a reasonable person in the defendant’s position would have taken that precaution. Causation at common law continues to be governed by March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, while the requirements of factual causation and scope of liability in s 5D more closely reflect McHugh J’s minority approach in that appeal.

Mr Smith’s pleaded claim

10. Mr Smith’s statement of claim did not mention the Civil Liability Act. Nor did it mention the legal concepts which were indispensable to his obtaining judgment, namely, risk of harm, precautions which a reasonable person in Coles’ position would have put in place, and factual causation.

11. Not only was there disconformity between the pleading and the legal issues, but also the facts pleaded were quite distant from the case advanced at trial.

12. The facts giving rise to the incident were pleaded thus:

“On 10 May 2014 the Plaintiff was working at the Workplace. On the said day the Plaintiff commenced work at about 5am, and spent the first approximately 3 hours of his shift lifting heavy boxes of drinks. At or about 9am, was required to lean forward to reach the back of a pallet, and manually lift a heavy box containing approximately 25 x 1 Litre glass bottles of water, during the lifting of which the Plaintiff suffered severe personal injury.”

13. It is not clear how much a box of 25 x 1 litre glass bottles of water would weigh, although it must be considerably more than 25 kilograms. Mr Smith accepted, and the primary judge found, that Mr Smith lifted nothing like that weight. Instead, he lifted a box of 12 x 800ml “VOSS” water bottles, weighing some 16.4kg. No challenge is made to that finding.

14. The statement of claim gave the following 13 particulars of negligence which are reproduced as Annexure A. Those particulars have been tailored to the case sought to be advanced by Mr Smith (and in this respect compare favourably with those propounded by Ready Workforce). In very large measure, they allege failures by Coles to undertake various precautions. However, three matters are conspicuous by their absence.

1. The first is the claim, permitted to be advanced over Coles’ objection, and maintained throughout the trial, that the reason for the injury was that there was a row of racking only 1.7m high, under which Mr Smith had to stoop when picking up the water.

2. The second is that a slat of the pallet was broken, impeding Mr Smith’s access to the box of water.

3. The third is the claim that a “pick stick” should have been made available to Mr Smith to assist in dragging the box closer to the aisle. The “pick stick” was a 180cm long thin metal pole with a handle at one end and a small base at the other end, perpendicular to the pole.

15. The propositions that the overhead racking was too low and a slat of the pallet was broken were factual matters said to explain how the injury came about. The pick sticks were different. They were a precaution which, so it was said, a reasonable person in the position of Coles would have employed to address the risk of harm which was presented.

16. Section 5B applied to any finding of breach based on a failure to take precautions. It provided:

“5B General principles

(1)    A person is not negligent in failing to take precautions against a risk of harm unless—

(a)    the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)    the risk was not insignificant, and

(c)    in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)    the probability that the harm would occur if care were not taken,

(b)    the likely seriousness of the harm,

(c)    the burden of taking precautions to avoid the risk of harm,

(d)    the social utility of the activity that creates the risk of harm.”

17. As Meagher JA said in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]:

“To address the questions and considerations in s 5B, it is necessary to formulate a plaintiff’s claim in a way which takes account of the precautions which it is alleged should have been taken and identifies the risk or risks of harm which the plaintiff alleges eventuated and to which those precautions should have been directed.”

18. For other recent examples of the need to pay regard to the demands of s 5B, see also Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151 at [74]; Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [41] and Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [21].

19. To anticipate what follows, Mr Smith’s counsel opened on the first and second of those aspects, and, over the defendant’s objection, evidence was adduced and findings made on those unpleaded aspects of the case. These were very important factual issues at trial.

20. The allegation that Coles should have made available and mandated the use of pick sticks was quite different. It fell into the same category as most of the lengthy particulars reproduced in Annexure A, being precautions which Coles was alleged to have failed to take. Having regard to the prominence the pick sticks achieved on appeal, it may be useful to summarise what occurred.

Overview of pick sticks at trial

21. Section 5B made the identification of the precaution and establishing that a reasonable person in Coles’ position would have undertaken it critical to the success of Mr Smith’s claim. To put it bluntly, if Mr Smith was to obtain judgment based on Coles’ failure to do something, he needed to identify a risk of harm and to establish that the risk was foreseeable and not insignificant, and he also needed to identify precautions which a reasonable occupier in the position of Coles would have taken, having regard to the probability that harm would occur if the precautions were not taken, the likely seriousness of the harm, the burden of the precautions and the social utility of the activity which created the risk of harm. This is irrespective of the fact that his pleading did not engage with the Civil Liability Act.

22. The pick sticks were treated differently at trial from the height of the racking and the broken slat. They were not mentioned in opening. Both sides’ experts had said, without elaboration, that pick sticks could have assisted, and both proceeded on the false premise that pick sticks were available in 2014. Neither expert was cross-examined. A reference was made to the pick sticks in cross-examination, to which Mr Smith responded that he had never heard of them and they had not been issued. The pick sticks assumed some prominence in closing submissions, but senior counsel eschewed the possibility that the trial might have departed from the pleadings, and insisted that they fell within the pleaded case.

23. The trial judge regarded Mr Dubos’ evidence concerning the use of pick sticks as based on facts different from those her Honour found and therefore irrelevant. They were at the forefront of the submissions advanced on behalf of Mr Smith and Ready Workforce on appeal.

Mr Smith’s case as opened

24. Mr Smith’s case was opened on the basis that there were two reasons why he could not approach the box of water and lift it safely. He claimed that he could not stand on the pallet because of the 1.7m height of the racking. It was also put that the pallet had a broken slat. Immediately after the conclusion of the opening, counsel for Coles objected that:

“The particulars of negligence make no reference to the configuration of the racking, the height, nor do they make any reference to the broken pallet.”

25. The trial judge deferred the issue thereby flagged until evidence was adduced. When Mr Smith was asked questions about the broken pallet, her Honour overruled what, in effect, was a relevance objection, and permitted the evidence to be led.

26. It may be noted that the lay witnesses were all led in chief, and if statements had been supplied as to the evidence they were likely to give, it is not apparent from the transcript or the appeal books. Some idea of the plaintiff’s likely evidence may be inferred from the assumptions briefed to his expert. It is far from clear to me that the overriding purpose, to which the parties, their lawyers and the Court were subject by reason of s 56 of the Civil Procedure Act 2005 (NSW), was facilitated by Mr Smith giving an oral account of his accident. Leading evidence in chief was necessary when questions of fact were determined by juries, who might be illiterate. There are other occasions when it is appropriate. But I respectfully doubt whether a default position that lay evidence be adduced without notice of what it is likely to be is either the fairest or most efficient procedure available in the 21^st century in civil litigation.

Mr Smith’s evidence – height of the racking above the pallet

27. Mr Smith gave firm evidence that when standing on the ground, he was at about eye level with the upper rack. He maintained in evidence in chief and in cross-examination that it was not 2 metres high, although he conceded that he never measured the height.

28. Mr Smith accepted that the box he was lifting was a box of 12 “VOSS” water bottles. Each bottle contained 800ml of water. It was common ground that the box weighed 16.4kg.

29. Although Mr Smith’s claim that the racking was only 1.7m high was maintained throughout the trial, the primary judge found against him, and the rejection of this aspect of his evidence is not challenged on appeal. Coles adduced contemporaneous documentary evidence that the boxes of VOSS water were stored at ground level in slot DD291A in May 2014. As it happened, a survey of the warehouse had been undertaken in March 2014. The survey showed that the height of the beam above slot DD291A was 2100mm. There was no dispute that the beam was 110mm thick. Thus the clearance above floor level was 199cm, and the clearance above the level of the pallet was 184cm.

30. (There is nothing to suggest that Mr Smith or his lawyers had any notice of the documents which would be made available to support Coles’ case that the racking was 1.99m high. I repeat the comments made four paragraphs above.)

31. It follows that Mr Smith could not have hit his head, or been concerned about hitting his head, had he stepped onto the pallet with one foot, keeping one foot on the ground in the aisle, and picked up the box. It may be that Mr Smith, who claimed a good recollection of the racking at eye level, was confusing this particular lift with one of the thousands of others he had performed in the years he had worked as a picker.

Mr Smith’s evidence of the broken pallet

32. The remaining key factual element which had been mentioned in opening was the broken slat in the pallet. The evidence in relation to the slat is quite unclear.

33. It was agreed that each pallet’s dimensions was 1165mm x 1165mm x 150mm, and that the lead boards were 150mm wide, with the intermediate boards being 95mm wide with a small gap between each board. Uniformity of pallet dimensions is essential for logistics, and may confidently be accepted.

34. The placement of the boxes of VOSS water bottles upon the pallet is shown in the photograph below. The photograph was taken in June 2018, some four years after the incident, and is of a different bay (“DD351”, rather than “DD291”) but there is no reason to think that the arrangement of the boxes on the pallet, or the configuration of two pallets in each bay, was any different from how it had been in May 2014. It is (at least to my eyes) consistent with a height of 1.99cm, although careful allowance must be had for parallax error (the key is to compare the top of the uppermost box, which must be around 1.7m, with the rear pillar of the racking immediately to its right in the photograph).

35. Mr Smith gave evidence in chief as to why he did not walk across the pallet and pick up the box as follows:

“Q. Just take it slowly. Why didn’t you walk across the pallet and pick up the box as you were told in your training?

A. ’Cause the pallet was broken, you’re unable to stand on it with two feet.

Q. Why was that?

A. ’Cause the board was indented in, broken inwards.

Q. Could you have walked onto that pallet and walked without ducking your head?

A. No.

Q. Why?

A. Cause breaking shelving was about my - just about my head height.

Q. You indicate your nose and then you indicated your chin.

A. Is - roughly.

Q. Roughly, are you indicating that height of your chin when you were standing on the pallet or when you were on the ground outside?

A. So, as I was on the pallet, inside.

HER HONOUR

Q. Let’s just stand on the ground. Is the rack above your head, level with your head--

A. So, standing on the ground, I’d be about eye level with it.

FLETT

Q. In 2014, had you seen other bays at the level of your eyes?

A. Yes.

Q. Was it usual or unusual?

A. It was usual.

Q. How tall are you?

A. About 182 centimetres.

Q. It’s been suggested that that rack height was 2 metres. Does that accord with your recollection?

A. No.”

36. Late in his examination in chief, Mr Smith gave this evidence:

“Q. Tell me, was it possible for you to, with relation to this box, the Voss water box, to get onto the palette and bend down to pick up the box.

A. No.

Q. Why?

A. It was unstable.

Q. It was unstable, yes, and? Any other reason?

A. Break.

Q. The palette was, but was there any reason that you couldn’t stand on the palette, bend your knees and pick up the box?

A. The height of the shelfing as well.”

37. It will be seen that Mr Smith’s erroneous recollection as to the height of the racking overlapped with his evidence about the broken slat, and that he gave no clear evidence about the location of the broken slat.

38. Mr Catsanos was permitted to cross-examine Mr Smith, albeit before counsel for Coles. He was encouraged to ask non-leading questions. He elicited the following evidence concerning the lift which led to Mr Smith’s injury:

“Q. I think you placed one foot on the palette, did you?

A. Yes.

Q. And did you have one foot on the ground?

A. Yes.

Q. When you went to pick up the box of mineral water, how far in front of you, how far from your body was the box of mineral water when you picked it up?

A. Approximately two feet or so.

HER HONOUR: ... (not transcribable) … Mr Smith, where, notwithstanding the barrister’s never like this, you don’t have to make a choice, is the palette is 1.2 metres in square, which is how you described it previously, you would either convert it into feet or give the centimetres.

WITNESS: Approximately about 90 centimetres, I’d guess.

CATSANOS

Q. About how many?

A. About 90 centimetres.”

39. This evidence was a useful attempt to identify with some precision the mechanics of Mr Smith’s injury. However, it does not clearly describe what happened.

40. The difficulty starts with the question: “When you went to pick up the box of mineral water how far in front of you?” How is the distance to be measured? Is the distance to be measured before or after Mr Smith’s foot was on the pallet? Is the measurement from the edge of the box or from the middle of its sides? Is it a horizontal or diagonal distance? And, perhaps most vaguely of all, what is meant by “how far in front of you”? Mr Smith’s arms must have been outstretched prior to picking up the box. Was the answer a distance between his hands and the box at the time he placed his foot on the pallet? Or a distance from his shoulders, or his hips (or even – as the expert may have measured it – from the midpoint of his ankles) to the box?

41. The difficulties were exacerbated by the exchange after the judge’s intervention (which was evidently not fully captured in the transcript). It is not clear whether, when stating “approximately about 90 centimetres”, Mr Smith thought he was answering the same question. Obviously, 90cm is approximately three feet, as opposed to the two feet initially answered by Mr Smith. None of this was cleared up, either at that stage or subsequently.

42. Mr Cranitch was correct to state in oral submissions in this Court that “it is and remains unclear what part of his body was 2 feet from the box”.

43. Yet, by the time of final addresses at trial, Mr Catsanos was maintaining that “the worker gave unchallenged evidence that the box of mineral water in question was 90cm from his body when he lifted it” and on that basis submitted that it was dangerously heavy, because of evidence that in no circumstances is it safe to lift at arm’s length a weight over 15kg. It will be clear from the transcript that the submission ignores Mr Smith’s previous answer. Further, as will be seen below, notwithstanding much that was unclear about Mr Smith’s evidence, it cannot be correct that he reached 90cm to the box of water bottles.

44. In this Court, Mr Cranitch submitted:

“The evidence never identified with particularity where that broken slat was. But regardless of its position, the only clear evidence available to her Honour was the evidence of the appellant: that he was unable to put his foot onto the box such that the box of mineral water remained approximately 2 feet or so in front of him when he was required to pick it.”

45. I agree that the evidence never identified where the broken slat was. However, I do not agree that the evidence of Mr Smith was clear, or that his evidence was the only clear evidence available to the primary judge.

The placement of Mr Smith’s feet

46. Mr Smith did give clear unchallenged evidence that he placed one foot on the pallet and kept the other on the ground in the aisle. There was no dispute about this on appeal (Transcript 22 July 2020, p 6.25).

47. Parts of this evidence have been reproduced above. Mr Smith continued:

“Q. Were you able to get that foot that was on the palette any closer to the box?

A. No.

Q. Why not?

A. Because the board was broken, so--

Q. So you couldn’t step any closer?

A. No.”

48. The primary judge made no findings about precisely where Mr Smith stepped. The parties invited this Court to do so, if it could, in order to avoid a retrial. Aspects of what occurred can be illuminated by the evidence of the dimensions of the pallet, the box, the racking and Mr Smith’s height.

49. There was conflicting evidence as to the dimensions of the VOSS water boxes. Dr Fairfax said each box was “22cm (L) x 20cm (W) x 31 cm (H)”. That is obviously wrong. Boxes of 12 cylindrical bottles can never be essentially square (22 x 20). They are inevitably much closer to an oblong, with the ratio between the short and long side being 3:4. (Twelve circulate bottles will, in the absence of internal packing, inevitably be arranged in a carton in a 3x4 rectangle.) As much is confirmed by the photograph, which shows that the base of each box is much closer to being an oblong than the near square described by Dr Fairfax. Mr Dubos said they were “300 mm in height x 290 mm in length x 220 mm deep”. This is roughly consistent with the basic geometry of packing 12 cylinders, and the photographs in evidence.

50. The photograph reproduced above shows that the pallet was packed so as to have the boxes oriented in different directions. The total length of boxes facing the aisle when a pallet was positioned in the bay was 290 + 220 + 220 + 220 = 950mm, leaving around 100mm on each edge of the pallet empty. It is certainly open to proceed on the basis that the last box remaining on the pallet was hard on the far edge of the pallet, in the corner and oriented with either its narrow 220mm face facing the aisle or the broad 290mm face facing the aisle.

51. The pallet was 1165mm square. Thus even assuming that the last box of water sat right on the far edge of the pallet, the distance between the front of the pallet and the closest face of the box was in the order of 910 or 840mm, depending on its orientation. More relevantly, the distance between the front of the pallet and the middle of the box of water (where a picker would obtain a grip) was in the order of 1020 or 990mm.

52. It follows that if as he maintained Mr Smith had one foot on the pallet, then the horizontal distance between his foot and the remaining box of water was considerably less than 90cm, irrespective of where his foot was placed.

53. It is not clear which slat was broken. But Mr Smith maintained that it was the broken slat which prevented his placing his foot next to the box. Taking that evidence at face value, it could not have been the 150mm slat on the far edge of the pallet, which would have been wholly underneath the box and could not, if broken, have caused any obstruction to Mr Smith. It must have been one of the three 95mm slats furthest from the aisle. (If the narrow face of the box faced the aisle, then the box would have rested upon the first 95mm slat, would perhaps have rested on part of the second 95mm slat, and would not have covered any of the third slat. If the wider face of the box faced the aisle, then the box would not have covered all of the furthermost 95mm slat, and so it would have been that slat or the second 95mm slat which was broken.)

54. Conceivably, the exposed slat adjacent to the box was not broken, but the slat which was even closer to Mr Smith was broken, and Mr Smith formed the view that he could not safely put his foot with his toe on the unbroken slat. That would be the most favourable view of the evidence from Mr Smith’s perspective, because he would have been forced further than 10cm from the box. It was not advanced by any party on appeal. It was evidently rejected by the judge, who was in this respect better placed than this Court to assess what Mr Smith was conveying. As will be seen below, the trial judge formed the view that the broken slat caused Mr Smith’s foot to be 10cm removed from the edge of the box he was to pick up.

55. This was made very clear during closing submissions:

“HER HONOUR: He says that the board was broken closer, so we’re talking about one board which, in real terms, takes us ten centimetres further forward. That’s what we’re talking about because he says, ‘The board was broken’.

CATSANOS: Yes, but he says he wasn’t able to get his foot any closer to the box.

HER HONOUR: Yes, because the board was broken.

CATSANOS: Yes.

HER HONOUR: Ten centimetres in front of him, there was a cavity.

CATSANOS: Well, I don’t know.

HER HONOUR: We know that if a board is ten centimetres--

CATSANOS: But we don’t know what the detail of the broken pallet is because he was never asked about this.

HER HONOUR: We did. ‘The board was broken.’ That’s exactly what he said.

CATSANOS: The board was broken, and he couldn’t get his foot any closer.

HER HONOUR: The board was broken, and yesterday, that’s actually – the dimensions of that board were identified because we got that the board was 95 millimetres wide. Say ten centimetres, it’s easier.

CATSANOS: But if the proposition is that he could have got his foot closer because it was just here, so why couldn’t you step over it – if that’s--

HER HONOUR: If he couldn’t get it any closer because a ten centimetre board was broken, it has to be in front of him obviously.

CATSANOS: But he didn’t say just one board was broken.

HER HONOUR: He did actually, ‘The board was broken.’

CATSANOS: The board was broken on the pallet, and he said he couldn’t get his foot any closer and that’s where the evidence rested.

HER HONOUR: Yes, I understand that.”

56. But for the broken slat, there would have been no difficulty in standing at the front of the pallet, placing one foot on the pallet next to the box, and performing the lunge lift recommended by Coles whilst retaining the other foot on the ground in the aisle. It would have been impossible for Mr Smith to have been in any way impeded by the racking above his head.

56. On appeal, Mr Cranitch directed attention to Mr Smith’s evidence about being two feet from the box:

“LEEMING JA: What’s in my mind, at p 100 we know these pallets are 4 feet deep. If in truth he couldn’t get – there were 2 feet between him and the box, that’s half a width of the pallet. That can’t be consistent with one of the slats being broken.

CRANITCH: I understand what your Honour says and I’ve struggled with the geometry as well, and in reality one is never going to have any certitude about why he wasn’t able to get his foot closer. The fact of the matter is, however, that however one looks at it, he was never challenged about those assertions that he had made to which I have taken your Honours in the evidence.”

58. I do not accept this uncritical approach to findings of fact. Mr Smith needed to prove his case. His evidence about the height of the racking was wrong. His pleaded case about lifting a box containing 25 x 1 litre bottles of water was wrong. His evidence about the box weighing more than 20 kg was wrong. His evidence about reaching 90cm was wrong. His evidence about being approximately 2 feet from the box is very unclear. Fundamentally, this is not a case where counsel can succeed simply by saying that it is all too hard to work out what must have occurred. Insofar as Mr Smith’s case turned on the broken slat, one needs to work out what consequences that had.

59. It does not follow from the fact that Mr Smith’s evidence was unchallenged that the Court cannot draw inferences from the demonstrably established dimensions of the pallet, the slats and the boxes of water. The task of the trial court, and of this Court conducting an appeal by way of rehearing, extends to assessing all of the evidence, in order to make findings (if findings can be made) as to the mechanism of the incident.

60. Yet Mr Cranitch maintained in chief, and in his address in reply, that the starting point was the testimonial evidence of Mr Smith:

“CRANITCH: Indeed, your Honour. But then when one analyses the position adopted by her Honour and by Mr Parker, (a) as we said in our earlier submissions, the only certain measurement that is available is that given by the plaintiff.

LEEMING JA: Which one: the approximately 2 feet, or the 90 centimetres?

CRANITCH: The approximately 2 feet, your Honour.”

61. It will be clear from the above that I cannot agree with Mr Cranitch’s submission.

62. In the present case, the way in which fact-finding is to be performed was straightforward. Contrary to the written and oral submissions advanced by Mr Smith and Ready Workforce, the starting point was not Mr Smith’s recollection (which was demonstrably incorrect in some respects), in 2019, of what he had done five years earlier. Rather, the starting point was the dimensions of the pallet and the slats and the box, which could be confidently and objectively established and in the light of which Mr Smith’s recollection fell to be assessed.

63. It is plain from the exchange at trial between the primary judge and Mr Cranitch that her Honour regarded the broken slat as an issue about a 10 centimetre distance between Mr Smith’s foot and the box. Perhaps it was a few centimetres more. Even so, that seems unlikely to be causative of injury. Hence I asked the following question:

“LEEMING JA: At some stage if you could point us to evidence about how the 15 or 30 centimetre setback that his front foot must have been in because of the broken slat would cause the lift to be unsafe I’d be grateful. Feel free to take that on notice.”

64. The response was that this was common ground. But I do not accept that that was so.

65. First, this allegedly common ground is not, so far as I can see, mentioned in the judgment or in the submissions (certainly, the Court was not taken to where this appeared).

66. Secondly, it is inconsistent with the reasons of the primary judge, which deal extensively (see below) with the evidence of Dr Fairfax as to the plaintiff’s reach of 87cm and Mr Smith’s evidence of 2 feet and 90cm. The grounds of appeal in these appeals are numerous, but it was not said that her Honour departed from what was common ground.

67. Thirdly, it is not how the case was argued. Illustrative of this is Mr Catsanos’ closing submission at trial:

“If he squatted next to that box, kept his back straight, lifted it close to his body and stood up, the risk of injury would have been minimal but that’s not what happened in this case, that’s not what this case is about. He leans across this pallet, he’s got his arms - Mr Parker says, ‘it must have been 60 centimetres’- but he said ‘90’. He wasn’t challenged on that.

HER HONOUR: Well, he said ‘two feet’ and he said ‘90’, they’re quite different measurements. You have to choose one of them but he gave two different measurements.

CATSANOS: Well, I would choose the 90 but even if we choose the 60, on Mr Parker - on Coles’ own case, lifting a weight of 16.4 kilos with your arms extended 60 centimetres is dangerous and that’s the evidence of Dr Fairfax.”

68. It was for the plaintiff to demonstrate that his inability to place his foot adjacent to the box made the lift dangerous. That involved contradicting Dr Fairfax’s opinions. But neither Mr Smith nor Ready Workforce sought to cross-examine Dr Fairfax.

Departures from Mr Smith’s training

69. There was evidence accepted by her Honour that Mr Smith was trained how to lift properly and safely, to bend his knees and brace his abdominal muscles rather than bending his back. Mr Smith accepted that he did not do so. He accepted in cross-examination that he knew that in order to lift safely he needed to maintain the natural curve of the back, and agreed that he lifted with a bent back when he was injured, contrary to a specific prohibition:

“Q. ... this is manual handling log 027. You will see that it shows you pictures of safe and unsafe lifting methods. Is that right?

A. Yes.

Q. And if you look at the second picture down with the big cross, that’s what you did on that day, wasn’t it?

A. Yes.

Q. Specifically prohibited, correct?

A. Yes.”

70. Mr Smith also agreed that the technique he adopted was contrary to the technique he had been taught. He also accepted that he knew that if he could not get close to an object, he had been instructed to leave it, and he had not done this. He accepted that he was aware that he should have tilted the box to facilitate the lift.

71. There was ample basis for the finding by the primary judge that:

“Mr Smith accepted that he knew how to lift; knew how to lift this carton properly; knew that he should not have bent his back; knew the correct lifting and manual handling procedures; and yet did otherwise. Whether by design; operation of a good system; or sheer serendipity, Mr Smith knew that which he should have been taught in a competent system of training and review.”

72. It was on this basis that the primary judge found that had Mr Smith lifted in accordance with the manual handling technique in his training, the injury would not have occurred.

The use of pick sticks

73. The most prominent submission on appeal concerned the use of pick sticks. Thus, Mr Cranitch submitted:

“The most obvious solution to this problem which her Honour completely ignored was that she failed to have regard to the fact that there was a tool which was supposedly available in the system of manual handling developed by Coles, which is known as a pick stick. An example of the pick stick, for your Honours’ edification, appears at Dubois’s report at p 270 of the blue book. Your Honours will see in photograph 5, it's obviously very shiny because the reflections come up as little stars along the handle, one could have perhaps noticed the difference to that, but your Honours will see it’s a long metal tube with what appears to be an end that looks a bit like a domestic hoe that one would use in the garden.”

74. The photograph to which he referred was this (the three thin white lines perpendicular to the pole in the middle of the stick and towards the handle appear to be reflections from the camera’s flash):

75. The use of pick sticks was not pleaded or particularised. It was not mentioned in opening.

Evidence concerning pick sticks

76. In cross-examination, the topic of pick sticks was raised by counsel for Coles, as he proceeded through the following page from the “Coles Logistics Safe Work Practice” Manual:

77. Mr Smith was asked these questions by reference to that page:

“Q. This particular carton you didn’t regard as too heavy for you to lift, did you?

A. No.

Q. And you had lifted these boxes of drinks previously?

A. Yes.

Q. And then it says use a pick stick instead of overreaching for stock. Do not lift and rattle the gravity food. What was a pick stick?

A. What was a pick stick?

Q. Yeah.

A. I don’t know.

Q. A pick stick was a stick used to cause goods to come to the front of a pallet or some area where you couldn’t necessarily reach them, wasn’t it?

A. No.

Q. You don’t think so?

A. No, the pick stick never - it was never there when I was employed at Coles.

Q. You say there were no pick sticks. And if you just skip down to the last item under first level picking, Beware of the pallet condition, missing bullets, bails and splinters. Do you see that?

A. Yes.

...”

78. No other oral evidence was given concerning pick sticks.

79. True it is that the experts had exchanged opinions in their reports about the pick stick, and the page of the manual. Mr Dubos had said, by reference to the manual, that “A pick stick was not used in an attempt to drag the box forward on the pallet, but instead Mr Smith overreached potentially”. His report addressed the specific question concerning precautions as follows:

“‘4. If adequate safeguards were not in place, what precautions should Coles have taken in response to the risk of injury?’

On my inspection of the system of work, on 15 December 2007, there was a height of 2 metres between the ground and the first level of racking, where the Voss still water was stored in the Coles Distribution Centre. The provision of a 2 metre high space (my instructed assumption is 1.7 metres) at the time of Mr Smith’s accident, would have reduced risks of injury. The regular use of a forklift truck or pallet jack to turn pallets in racking around, where there were only boxes on the pallet left towards the rear of the pallet, would have reduced risks of injury. The provision of one or two pallet jacks in each aisle and mandatory procedures for pulling a pallet out from under racking where products are difficult to access, could also have reduced risks. The immediate detection and replacement of any pallets with damage to the timber on the surface of the pallet, or related hazards such as protruding nails, as part of a mandatory system of work could have reduced risks. The provision and mandatory use of a pick stick to drag boxes forward on a pallet where necessary could have reduced risks. On my inspection of 15/12/2017 the width of the bay in racking where the Voss water was stored was 2.73 metres. With this type of width, 1150 mm² pallets could be stored using a forklift truck underneath the racking so that there was a space of approximately 430 mm in the centre of the bay between the pallets. The mandatory provision of this type of space between pallets could have meant that a worker could step between the pallets in order to access items towards the back of a pallet, and reduce handling risks.”

80. It will be seen that the mandatory use of pick sticks was listed as one of half a dozen measures which “could” have reduced risks.

81. Dr Fairfax agreed that she understood that workers used pick sticks to drag items forward from the rear of the pallet, and said that:

“If the Plaintiff had a problem with the carton being at the rear of the pallet he could have simply used the pick stick and pulled the carton forward, but he did not.”

82. The experts prepared their reports in 2018. Evidently they proceeded on the basis that pick sticks had been available in 2014. Naturally, the subsequent employment of pick sticks “does not of itself give rise to or affect liability” in respect of the risk of harm to Mr Smith, and “does not of itself constitute an admission of liability in connection with” that risk: s 5C(c). Further, the experts’ evidence falls short of maintaining that an occupier in the position of Coles should (as opposed to could) have mandated the use of pick sticks. To the contrary, Mr Dubos advanced a suite of other measures and when read fairly, measures such as increasing the height of the racking to 2m (he had been asked to assume it was only 1.7m high) and pallet turning were regarded as more important. Mr Dubos stated that these two measures “would” reduce the risk of injury.

83. At the conclusion of his report, Mr Dubos provided the following summary under the heading “Controlling the risks of injury”:

“In the case of Mr Smith’s injury accident, on my instructed assumptions, engineering methods could have been used to eliminate or at minimum reduce the risk of injury. I am instructed that the height of the area of racking where the Plaintiff was required to access the box at the back of the pallet, was 1.7 metres in height. I am instructed that due to his height (of which I have no specific information) Mr Smith was required to bend and stoop underneath the racking. I observed during my inspection in December 2017 that racking in the area was 2 metres in height. If the racking had have been 2 metres in height at the time of Mr Smith’s accident, then the vast majority of males or females could have stood upright underneath the racking to access the box without stooping. Mechanical lifting aids could have been used as a mandatory procedure, in the form of a forklift truck or pallet jack to remove the pallet with the box at its rear, from underneath racking so that the box could be directly accessed. In the alternative, any pallet such as the one in question with boxes at its rear could have as a mandatory procedure, been turned using a mechanical lifting aid, so that a box could be accessed directly and immediately from the aisle. An administrative safety control where as part of mandatory procedures, any pallet with damage to its surface was to be reported to management and immediately condemned, could also have reduced risk of injury. In this case, it would have been behoven on Mr Smith to report the damaged surface of the pallet, so that he did not proceed with handling the box using such an awkward posture as he did, on my instructed assumptions.”

84. It will be seen that the use of pick sticks is not one of the ways there relied upon by Mr Dubos to control the risks of injury.

85. Further, Mr Dubos’ opinions were based on the failure to use a pick stick when Mr Smith dragged the box towards him. But Mr Smith did not give evidence that he dragged the box towards him. Rather, he lifted it up after placing one foot on the pallet.

86. There are, with respect, some difficulties with how the primary judge addressed the evidence of Mr Dubos and Dr Fairfax concerning pick sticks. Her Honour addressed the topic on four occasions: at pp 8, 9, 32 and 37 of her reasons. At page 8, after reproducing extracts of Mr Dubos’ report which referred repeatedly to Mr Smith dragging the box towards him, her Honour said:

“That does not match the facts as I find them. Mr Smith did not use excessive force in dragging or pulling a box/carton. He lifted the carton in an improper/unsafe manner when stooped over it; not after dragging it closer. To that extent Mr Dubos’ analysis of dragging and matters related, including the use of pick sticks, is inapposite, and irrelevant to the point of being inadmissible.”

87. Her Honour continued, mentioning other discrepancies between the facts and Mr Dubos’ assumptions, and the fact that he had framed the employer’s duty in terms of ensuring the safety of workers, and saying that his opinion was rendered “of little weight and of questionable admissibility”. It is not clear whether this amounted to a ruling that it was inadmissible; on one view it falls short of going so far.

88. At p 9, her Honour referred to Dr Fairfax’ opinion on pick sticks, saying that it “enters into the otherwise irrelevant arena of pick sticks”. That suggests that her Honour regarded the issue as outside the pleadings.

89. At p 32, her Honour referred to pick sticks, in conjunction with a criticism of Mr Dubos’ opinions about altering the layout of pallets. Her Honour said that “[t]hese were among the things that Mr Dubos opined ... could – as distinct from would – have reduced the risks of injury”. Her Honour contrasted those matters with two factors which Mr Dubos opined would have reduced the risk of injury, namely, pallet rotating, and raising the first-row shelf height to 2 metres (Mr Dubos had assumed a lower shelf height).

90. Finally, at p 37, her Honour in the course of summarising the submissions said:

“The issue of pick sticks arose in various respects. But it relates to Mr Dubos’ instruction that Mr Smith dragged the carton towards himself, when the evidence is that he did not.”

91. On one view, evidence concerning the use of pick sticks was irrelevant because it was outside the case. On another view, the evidence was regarded as turning on a materially different factual assumption, namely, that Mr Smith had dragged the box towards him. On a third view, her Honour regarded Mr Dubos’ evidence as so lacking in probative value that it should be rejected. Her Honour did not, as I read her reasons, definitively express a view, which may reflect the fact that pick sticks were far more prominent in this appeal than they were at trial.

Pick sticks were outside the pleaded case

92. Notwithstanding that exchange of expert opinion, the case was run on the basis that the issues would be determined on the pleadings.

93. This was raised during Mr Catsanos’ closing submissions (which preceded those of Mr Smith), just before the adjournment, after submissions on the use of pick sticks (and the possibility that the pallets should have been more widely spaced so as to permit access to their sides and rear):

“PARKER: Just before the Court rises, this is all very interesting, this access argument and the pick sticks argument, but there is not one scintilla of a particular of negligence in relation to access or to the pick sticks. My learned friend needs to deal with this, this business of going off on a tangent and finding something that you can hang your hat on at some point of time. It’s just not appropriate. Perhaps my learned friend can take it up after lunch.

HER HONOUR: To be honest, I thought it was all about training and supervision. That’s what seemed to be particularised, but we’ll come back to it.”

94. After an initial protest, which appears to have been an attempt to rely upon that class of trial where the parties have agreed to litigate issues beyond the pleadings (cf Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 287; [1990] HCA 11), Mr Catsanos renounced any attempt to contend that because of the exchange of expert reports, the case had expanded beyond the pleadings.

“HER HONOUR: Okay, are you now saying it’s pleaded or not pleaded?

CATSANOS: I’m saying it’s pleaded.

HER HONOUR: Right, well, what the experts have to say doesn’t define the pleadings. That would be the thing called the pleadings. So if it’s in the pleadings, that's fine but pleadings remain the pleadings.

CATSANOS: Well, I’m, at the moment, in a position where I’m guessing as to what your Honour might think about that but if your Honour took the view that it wasn’t in the pleadings--

HER HONOUR: Then it wouldn’t be in the pleadings, that’s what pleadings are about.

CATSANOS: But if - but the authorities make it quite clear, if a matter is being dealt with in substance and it has been, then it’s a matter your Honour ought have regard to.

HER HONOUR: Well, there are arguments about that. Are you now saying it’s not pleaded but you still want to maintain it?

CATSANOS: No, I say it’s pleaded. I’ve told your Honour why. Right, well, moving on then.”

95. It would have been open to counsel to seek to have resolved, then and there, whether the case extended to the failure to provide pick sticks as had emerged in the evidence, at the possible risk of an adjournment and costs if it was outside the pleaded case. Other judges might have been less hostile to that course than the primary judge appears to have been. Nonetheless, counsel chose not to do so, in circumstances where it was plain that Coles was insisting on Mr Smith and Ready Workforce being confined to the pleaded case and the judge was proceeding on the same basis. Indeed, the judge had already hinted her tentative view, contrary to Mr Smith and Ready Workforce, when she said “I thought it was all about training and supervision”.

96. The submissions advanced by Mr Flett on behalf of Mr Smith did not take the matter any further.

97. As noted above, it is unclear from her Honour’s reasons whether her Honour proceeded on the basis that the use of pick sticks was outside the pleadings, notwithstanding the exchange in final addresses between her and Mr Catsanos reproduced above. Her Honour’s reference to “the otherwise irrelevant arena of pick sticks” is difficult to reconcile with any other possibility, but the other places in her reasons which mention pick sticks have a different force.

98. The pleadings and particulars did not mention the absence of pick sticks. It seems reasonable to assume, based on the expert reports, that both parties proceeded on the basis that pick sticks were available (as they seem to have been in 2018 when the expert reports were prepared). It is difficult to see how the unavailability of pick sticks could have been regarded objectively as part of Mr Smith’s or Ready Workforce’s case. Rather, it was a fortuitous development which occurred, no doubt to the surprise of the cross-examiner, when Mr Smith said he had never heard of them. There could be no criticism of counsel for Mr Smith and Ready Workforce seeking to take advantage of that development in their clients’ interests. However, it was made clear by Coles and the judge that the trial was going to be determined on the basis of the pleadings. Her Honour expressly rejected (in relation to submissions concerning a reconfiguration of the racking) the proposition that “effectively anything raised in the expert report should be treated as having been particularised” (reasons pp 28.8 – 29.2).

99. Her Honour was well placed to determine whether Mr Smith’s case as pleaded and particularised extended to the use of pick sticks. I see no error in the primary judge regarding the use of pick sticks as irrelevant insofar as they were outside the pleaded case, if that is what her Honour did.

100. Pleadings in a case such as this ought to descend to the things which the plaintiff had to prove if he were to obtain judgment, including the precautions which, so he contended, a reasonable person in the position of Coles would have employed. I see no reason why the statement by Gageler and Edelman JJ is inapplicable to Mr Smith’s action for negligence, modified as it was by s 5B of the Civil Liability Act:

“‘The function of pleadings is to state with sufficient clarity the case that must be met’ and thereby to ‘ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and ... to define the issues for decision’. A plaintiff should be expected to plead all material facts on which the plaintiff relies to constitute the statutory cause of action ...”: Berry v CCL Secure Pty Ltd [2020] HCA 27 at [72].

Pick sticks would not give rise to breach in any event

101. But the matter may also be addressed substantively, and, in light of aspects of the reasons of the primary judge which are uncertain, it is appropriate to do so. I am unpersuaded that the use of pick sticks would amount to a basis for concluding breach of duty if the point were considered on its merits.

102. There are two mentions of pick sticks on the relevant page of the Safe Work Practice manual (which has been reproduced above). One, at the bottom of the page, under the heading “Picking at Height”, there is the statement, “Ensure you use a pick stick to pull cartons/objects forward from the rear of the pallet”. The other, to which a great deal of attention was given during the appeal, was under the heading “First Level Picking”. It was the fourth entry. The first three concerned lifting. The fourth entry provided:

“Use pick sticks instead of overreaching for stock, do not lift and rattle the gravity feed”.

103. When the document is read as a whole, it seems tolerably clear that the use of pick sticks had nothing to do with a lift of an item from the first level where there was a flat surface, as opposed to a gravity feed. The sense of the entry which was treated as critical for the purpose of the appeal is that in cases where there is a gravity feed (which I understand to refer to items being stored on a slope, such that they are assisted by gravity to slide down towards the aisle) and an item is stuck away from the employee's immediate reach, then rather than overreaching for it, or rattling the shelving to cause it to descend, a pick stick should be used instead.

104. That is the ordinary meaning of the words used. That is confirmed by the second reference to pick stick – “Ensure you use a pick stick to pull cartons/objects forward from the rear of the pallet”. That applies only to “Picking at Height”. If the instruction were to use pick sticks for all items at the rear of a pallet, then there would be no reference to a gravity feed, and the second reference to pick sticks would not be confined to items which are picked at height.

105. This was pointed out during the hearing:

“EMMETT AJA: Were pick sticks used for moving cartons such as this? That reference suggests that they’re used for moving things that are in terms to slide down by gravity.

CATSANOS: No, your Honour, it’s meant to avoid overreaching, but I take your Honour’s point.”

106. After referring to Dr Fairfax’s evidence, counsel continued:

“The intent of the pick stick, your Honour, is to slide cartons which are inaccessible at the rear of pallets or where access has been compromised and they are the tool which Coles espouses as providing the ability to perform a safe lift, but it was absent in this case. In our respectful submission the importance of that cannot be overestimated because we have from Dr Fairfax, the defendant’s expert, the effective evidence that there is the solution to the problem.”

107. As was suggested by Emmett AJA’s question, I do not think what was said on behalf of Ready Workforce is right.

108. First, there is a misreading of the Safe Work practice page. If pick sticks should have been used even for “First level picking”, why would not that have been said in simple terms? Why is the general instruction to use pick sticks to pull items from the rear of the pallet confined to “Picking at Height”?

109. Secondly, 16.4kg is quite heavy. It is heavier than a 15kg bag of chemicals, and approximately as heavy as a case of wine. The idea that one would apply sufficient force to cause such a box to move, on a flat surface, and then sustain that force until the box approached the edge of the pallet adjoining the aisle seems counterintuitive, although there is no evidence of the smoothness of the bottom of each box and the surface of the pallet, or the coefficient of friction involved.

110. Thirdly, the attachment to the pole seems ill-designed to achieve a grip on the edges of the box. Indeed, it is not difficult to contemplate circumstances where the grip fails, potentially causing injury to the worker. It is far from obvious to me that it would be safe to drag the box with the stick in this manner.

111. The primary judge made no finding as to how a pick stick would be deployed. If, favourably to Mr Smith and Ready Force, the pleaded case extended to the use of pick sticks, then it is clear that her Honour was unpersuaded that Mr Dubos’ opinion concerning pick sticks had any material probative value. It was premised on Mr Smith dragging the box towards himself, which is contrary to the findings. And it fell short of amounting to evidence capable of satisfying s 5B. Mr Smith and Ready Workforce ask this Court to find that (a) the use of pick sticks was a precaution which a reasonable person in Coles’ position would have taken, and (b) if it had been taken, then Mr Smith would not have incurred his injury.

112. There is no obligation on a court to accept even unchallenged expert evidence. The evidence of Mr Dubos and Dr Fairfax did not in any event go so far as to warrant the two findings which are necessary to Mr Smith’s case. I am not persuaded that the pick sticks were even viable, let alone that their use was so obvious that a reasonable person in the position of Coles would have mandated their use in a situation such as that encountered by Mr Smith.

The findings by the primary judge as to the mechanics of the incident

113. The primary judge quite carefully attended to what precisely happened. In light of ground 11 of Mr Smith’s appeal, it is desirable to reproduce the relevant portions of pp 22-24 of her reasons:

“The front of the carton, which was 22cm long; 20cm wide; and 31 cm high (exhibit 5 paragraph 91) would have been about 1 metre from the front of the pallet if the carton was about 22cm long and 20cm wide, and the pallet was 1.165m square with a lead board of 15cm and intermediate boards of 9.5cm. Mr Dubos offered slightly different measurements (exhibit C/8, paragraph 33): ‘Each box of still water measured 300 mm in height x 290 mm in length x 220 mm deep’.”

114. (I interpolate: as noted above, Dr Fairfax’s dimensions are demonstrably wrong, and those given by Mr Dubos are not “slightly” different: the difference is between 200 and 290mm, or 45%.)

“Mr Dubos’ photograph 1 (exhibit C/28, extracted opposite) suggest that carton spanned at least the rear two boards of the pallet. Dr Fairfax calculated by reference to his height (exhibit 5/paragraphs 77 (figure 2) and 160) that Mr Smith’s ‘step forward was at least 53cm.’ That is roughly 45% of the depth/width of the 1.165m pallet.

The back of the carton was obviously about the pallet width from the front of pallet. The broken board cannot have been the 15cm lead board. If that was in front of his foot, he would not have put a foot on the pallet at all. If his ordinary stepping distance was in the order of 53cm as Dr Fairfax calculated, it is likely that Mr Smith would have stepped over a breakage in the first few boards. It is unlikely that it was one of the first few boards that was broken, leaving Mr Smith having stepped some way onto pallet before his foot approached a broken board of about 9.5cm wide but some (uncertain) distance into the pallet that prevented him from getting the foot that was on the pallet any closer to the carton. His forward reach across the 1.165m pallet was reduced correspondingly.

Dr Fairfax considered this step onto the pallet provided Mr Smith with a stable base upon which to start the lift, saying (in exhibit 5) that:

115    ... Having one foot forward on the pallet provides a more stable base for lifting.

116    ... Having feet together means that the base is small and the person is unstable when lifting. Having one foot forward provides a more stable base which ensures a safer lift.

...

Ready Workforce submitted that:

28    In the present case, the worker gave unchallenged evidence that the box of mineral water in question was 90cm from his body when he lifted it (Tcpt 66.45 - 67.15).

29    It is inescapable then, even on the evidence of Dr Fairfax, that the load was dangerously heavy in the circumstances of the lift being undertaken by the worker at the time of his injury

....

42    Because of the broken pallet, the worker was unable to get his foot closer to the box, which meant he had to reach and lift the box 90cm from his body (Tcpt 67.10 - 67.30).

If the distance measured is the forward reach, 90cm is equally unrealistic. If that were so, with his foot on the pallet Mr Smith’s torso was about 26cm into the 116.5cm pallet, i.e., on the first 9.5cm board past 15cm lead board and no further forward than approaching the near edge of the third board of the pallet. If the second or third board were the one broken it is inherently unlikely that Mr Smith would not have simply stepped over it.

Mr Smith’s estimate of reaching about 90cm is unrealistic even if the reach was not purely forwards in direction. It is longer than Dr Fairfax estimated was possible, having calculated his reach at about 87cm (exhibit 5/paragraph 79, table 1). The more likely measurement of Mr Smith’s reach at the time is about two feet (say 60-61cm), as he stood with one foot some distance onto the pallet. That measurement gives little guidance as to either the position of Mr Smith’s foot on the pallet or the distance of the carton from his torso.

Mr Smith’s measurement was to where he had placed his hands underneath the 30 or 31cm tall box. On Dr Fairfax’s calculations the diagonal of the carton was about 38cm (exhibit 5, paragraph 91, footnote 55, and it might be slightly longer on Mr Dubos’ figures), which is roughly half the reach. The base of the carton sat about 15cm above the ground (on the pallet). When the 1.82m tall Mr Smith was standing stooped, with one foot on the pallet, Mr Smith’s shoulders were about 150cm above the ground on Dr Fairfax’s calculations (exhibit 5, paragraph 79), and less above the top of the pallet.

The distance of the carton from Mr Smith’s torso is effectively the hypotenuse of the distance from his stooped shoulders to the pallet surface (the base of the carton) and forward to the carton. Allowing for stooping/leaning and bending of his back, the distance of the carton from Mr Smith’s torso rests on speculation about angles and triangular calculations about which I do not conjecture.

I reject Ready Workforce’s submissions that:

52    Accepting, as it is submitted one must, that access from the front of the pallet was dangerously compromised, there was inevitably a risk that the lifting methods advanced by Dr Fairfax, or to be found in Coles manual handling documents, (see Exhibit I at pp.78 - 89) could not be implemented.

53    The only way the worker could have safely lifted the box in the circumstances would have been to walk around the pallet to get close to it from the side, however that option was not available to him ...

Dr Fairfax’s opinion was to the contrary. She determined that Mr Smith had placed his feet correctly (exhibit 5/paragraphs 114-115) but should not have bent his back (exhibit 5/paragraphs 120-121). On her assessment (and the relevant Coles’ instructions) Mr Smith had to lower himself with a straight back (bending his knees to squat or lunge), and tip the carton towards himself (exhibit 5/paragraphs 90-92), which simultaneously raised the carton to ‘a height equal to about half the length of the carton’s diagonal cross-section’ i.e., about … 17cm (or 32cm taking into account the pallet height), and brought the carton forward closer towards his torso, as is illustrated and directed in Coles’ manual handling standard operating procedure SOP038SG (exhibit 1/85).

On Dr Fairfax’s calculations, which I accept, Mr Smith would have been able to lift the relevant weight safely; and had positioned himself correctly with his feet. Even allowing for his recollection of reaching roughly 60-61cm to put his hands underneath the 31cm tall carton, he was reaching about one-third less than Dr Fairfax’s calculation of his reach of 87cm (exhibit 5/paragraph79, table 1), and his reach would have been reduced by tilting the carton so to raise it as well as bringing it towards his torso, holding it differently and squatting or lunging with a straight back. As Dr Fairfax opined (in exhibit 5):

87    Normally, if a carton is quite light, a worker will commonly lift it by the sides. If a carton is of a moderate or heavy weight, however, a worker will normally tip the carton on its edge and lift it by the comers ...

88    This method of tipping a carton enables a better grip and means that the worker does not have to bend so far down to pick the carton up. It is an ergonomically more comfortable lift, and it is safer.

Given the expert opinion that it was possible to lift the carton safely, the dispute about whether Mr Smith could or should have left the carton where it was is something of a diversion.”

115. Nothing turns on the erroneous dimensions of the box. The reasoning summarised above was grounded in Dr Fairfax’s analysis of a person’s horizontal and vertical reach, and evidence that Mr Smith was trained to pick a box at ground level by first placing it on its edge to increase its height. It was clear from Dr Fairfax’s evidence that she considered a box weighing 16.4kg could be safely lifted even if it was considerably more than the 10cm or so in front of Mr Smith. It is also clear that the primary judge proceeded on the basis that the evidence permitted her to find that the lift could be made safely, even though the precise location of the broken slat was not specified in the evidence.

116. In one respect, the primary judge may have proceeded on a basis unduly favourable to Mr Smith. Accepting that Mr Smith was 1.82m tall, the heel of his work boots was 4cm, and the pallet was 15cm high, his height when standing on the pallet was 201cm. This was slightly higher than the bottom edge of the rack above him. Her Honour appears to have accepted submissions that he could not stand upright while on the pallet. That does not seem right to me. He could not stand upright on the edge of the pallet immediately below the horizontal beam supporting the upper level. But anywhere else on the pallet, there was an additional 110mm clearance. If there were a pallet above, then it was no lower than the top of the upper beam. That is obvious as a matter of how pallets are supported, and may be seen in the photograph of bay DD351 taken in 2018. As presently advised I see no reason why it would not have applied to bay DD291 in 2014. But on the view I take it is not necessary to express a concluded view on this point, which was not the subject of argument.

117. Significantly for present purposes, as has been seen, the judge’s reasoning was supported by an analysis of the dimensions of the box and the pallet, and the unchallenged evidence of Dr Fairfax as to the means by which persons of Mr Smith’s height could, and should, lift a box weighing 16.4kg.

Overview of the position

118. The onus at all times rested with Mr Smith, insofar as his action depended upon Coles’ failure to take precautions against the risk that he might suffer injury, (a) to identify one or more precautions on which he relied, (b) to establish that a reasonable person in Coles’ position would have taken those precautions, and (c) to demonstrate that if those precautions had been taken, he would not have suffered injury.

119. It was accepted at trial that, at least on paper, Coles had established a safe system of work. I did not understand it to be in issue, at least in this Court, that but for Mr Smith failing to lift the box in accordance with his training – by flexing his abdominal muscles, not bending his back, and not twisting his body – the lift would have been performed safely. After all, that was the opinion of Mr Dubos, the expert on whom Mr Smith relied. That is not sufficient in order for Coles to succeed. Coles owed obligations as if it were, or at least akin to those owed by, an employer, and that extended to taking steps bearing in mind the possibility that Mr Smith might, through thoughtlessness, inadvertence or carelessness, depart from his training.

120. The first question was to determine, by reference to all the evidence, the mechanics of the injury, if it was possible to do so. Her Honour found that the box could not have been lifted safely without Mr Smith bending his knees or lunging. It followed that the “height of the shelf above the carton is irrelevant so long as there was room to approach with knees bent by squatting or lunging, as there was on all measurements” (reasons, p 30.6). (Hence the observations above about an additional 110mm clearance when Mr Smith was standing on the pallet would not have affected her Honour’s reasoning.)

Whether Ready and Mr Smith have established that the absence of pick sticks caused Mr Smith’s injuries

305. As referred to above, Mr Parker submitted that this Court ought not infer that, had a pick stick been provided for the use of persons such as Mr Smith, he would have used it, there being no direct evidence to that effect. He submitted that the lack of such evidence was fatal to the appeals by Ready and Mr Smith. I disagree for the following reasons.

306. The question whether Mr Smith would have used a pick stick had it been provided is a hypothetical one since the evidence established that it was not. The proof of causation in such a case requires the tribunal of fact to be satisfied that he would have used a pick stick to move the box closer to him before he engaged in lifting it. In Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (2^nd ed, 1979, Law Book Co.), the authors addressed this situation at 39 in the following terms:

“The problem has been dealt with in two cases in England, each of which involved the use of safety belts to prevent falls from a height which had proved fatal. The House of Lords in each case found for the defendant by adopting a finding of fact made below that the deceased would not have used the belt. Such finding was based upon positive evidence adduced by the employer concerning the habits of the deceased. There is no principle of law to be deduced that if the question is untouched by evidence on either side as to whether the safety equipment would or would not have been used, the case is defective on the issue of causation. On the contrary it would appear that in the absence of evidence there is a presumption of fact operating in favour of the plaintiff. ‘It may, however, be said that where the employer is in breach of his duty, there is in that fact some prima facie evidence of a causal connection between the breach and the subsequent damage’. ‘But proof need not be by direct evidence. If general practice or a regulation requires that some safety appliance shall be provided, one would assume that it is of some use, and that a reasonable man would use it. And one would assume that the injured man was a reasonable man.’ The failure of the plaintiff to use safety gear provided by the defendant brings different principles into play.”

[Footnotes omitted.]

307. The common law principles have been amended by s 5D(3) of the Civil Liability Act, which applies to actions commenced on or after 6 December 2002, and which provides:

“(3)     If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a)     the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b)     any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.”

308. The reason for the insertion of s 5D(3) into the Civil Liability Act appears from [7.40] of the Review of the Law of Negligence: Final Report (Commonwealth of Australia, August 2002) which said:

“The enormous difficulty of counteracting hindsight bias in this context undermines the value of such testimony. In practice, the judge’s view of the plaintiff’s credibility is likely to be determinative, regardless of relevant circumstantial evidence. We therefore recommend that in determining causation, any statement by the plaintiff about what they would have done if the negligence had not occurred should be inadmissible.”

[Emphasis added.]

309. Thus, had Mr Smith been asked whether, if Coles had provided pick sticks, he would have used one, an affirmative answer would have been inadmissible, which was presumably why neither Mr Flett (who appeared for Mr Smith at first instance) nor Mr Catsanos asked the question. Mr Parker did not put to him that he would not have used a pick stick if it had been available, presumably because there was no basis for such a suggestion. Coles is, accordingly, bound by the conduct of its case by counsel at first instance: see, in a criminal context, R v Birks at 684-685 (Gleeson CJ, McInerney J agreeing).

310. It is important to note that s 5D(3) does not alter the onus of proof; it merely affects the admissibility of evidence which, prior to its enactment, could be used to discharge it. The onus was described in the following passage from Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417 (Mason J), on which Mr Parker relied:

“The general principle is clear, that the plaintiff must prove, on the balance of probabilities, that the breach of duty caused or materially contributed to his injury: Bonnington Castings Ltd. v. Wardlaw, [1956] AC 613, at p. 620; McWilliams v. Sir William Arrol & Co. Ltd., [1962] 1 WLR. 295; Wigley v. British Vinegars Ltd. (supra). This means that ‘it is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the injured person would have made use of them had they been available’: Wigley v. British Vinegars Ltd. (supra), at p. 325. In some cases the fact that the employer is in breach of his statutory duty may itself provide some prima facie evidence of a causal connexion between the breach and the subsequent damage: McWilliams v. Sir William Arrol & Co. Ltd. (supra), at p. 302, or, in other words, ‘the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty’: Betts v. Whittingslowe (1945), 71 CLR. 637, at p. 649. Nevertheless, the burden of proving the causal connexion between the breach and the damage remains on the plaintiff.”

311. The evidence showed that Mr Smith had been working at the depot without incident for a number of years before the accident the subject of the proceedings and that he was plainly aware of the correct lifting technique and that he had been unable to comply with the technique he had been instructed to use by reason of the difficulties with access. There was no challenge to Mr Smith’s credibility before the primary judge and no basis for contending that this Court is not in a position to conclude, in the absence of any suggestion to the contrary, and in light of the evidence of Mr Smith’s work history at the Coles depot, that he would have used a pick stick, had it been provided to him.

312. In these circumstances, I am persuaded that the appeals by Ready and Mr Smith ought be allowed on the grounds which relate to the challenges to the primary facts. For the reasons given above, it is not necessary to address the procedural fairness grounds (grounds 6, 7 and 11 in Mr Smith’s notice of appeal and ground 14 of Ready’s notice of appeal) as it was common ground that there would be no utility in ordering a retrial.

Whether Coles has established that there should be a deduction for contributory negligence

313. The remaining issue on the appeals by Ready and Mr Smith is the question of contributory negligence. As Coles is at fault, I do not consider that s 5S of the Civil Liability Act applies. Coles bears the onus of proving contributory negligence: Anderson v Eric Radio & TV Pty Ltd (1965) 114 CLR 20 at 43 (Windeyer J); [1965] HCA 61 and Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [18] (McHugh J). By reason of s 5R of the Civil Liability Act, the same principles apply in determining whether a person has been negligent as they do when determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. The standard of care, for this purpose, is objective and to be determined on the basis of what the person knew or ought to have known at the time.

314. The context of the work being performed by Mr Smith is highly relevant. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37, it was held that, in considering contributory negligence, it was necessary to have regard to the nature of the work which was being performed in order to assess the significance of the employee’s conduct. Gibbs J (Stephen J agreeing) said at 568:

“[I]n deciding whether the [employee] was guilty of contributory negligence, one may consider, as part of all the circumstances, such things as inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand.”

315. Mason J said at 572 that “... the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence.” Statements to similar effect were made in McLean v Tedman (1984) 155 CLR 306 at 315-316; [1984] HCA 60 (Mason, Wilson, Brennan and Dawson JJ).

316. The question is whether Mr Smith’s conduct showed an unreasonable lack of care for his own safety. The answer to this question depends in part on the practical alternatives open to him. His evidence extracted above, which I accept, was that it was not reasonably open to him to simply leave the item on the pallet and leave the order unfulfilled since this would affect Coles’ assessment of his work performance, make it less likely that he would obtain a bonus for his pick rate and potentially subject him to a reprimand. There was substantial pressure on him to fulfil the orders which had been allocated to him. Although Mr Smith appreciated that he was not lifting the box in accordance with the way that he had been taught, he did not discern that there was any alternative to what he in fact did, which was to reach across the broken slat and lift the box. I do not consider that he was inadvertent or that he was not paying attention. However, I consider that he was so focussed on the task in hand and the pressure on him as a picker/packer to fulfil his orders for the day, that it was reasonable for him to consider that he had no practical choice but to pick up the box in whatever way he could manage to lift it. The insufficient height of the rack above, the broken slat and the absence of an aid such as a pick stick were each matters for which Coles was responsible and which impeded the safe performance of his work. Mr Smith had been well-trained and can be taken to have been diligent and hard-working. His injury was caused by matters outside his control.

317. In these circumstances, Coles has not established that there ought be any deduction for contributory negligence. It follows that the plaintiff is entitled to judgment in the sum assessed by the primary judge, less amounts to be deducted for his workers compensation payments. As there is no challenge to the primary judge’s apportionment of 50%/50% between Coles and Ready, this apportionment is to be reflected in the judgment sums.

The appeal by Coles against the judgment on its cross-claim against Chandler

318. Mr Cheshire SC, who appeared on behalf of Chandler, did not challenge her Honour’s judgment on the cross-claim or the assessment of nominal damages of $100. Mr Parker, however, challenged the assessment of damages and contended that her Honour ought to have assessed Coles’ damages by reference to the amount of costs which Coles had expended in the proceedings. Before turning to the grounds of the appeal, I propose to address the terms of the agreement between Coles and Chandler.

The agreement between Coles and Chandler

319. The agreement, which is entitled “Services Agreement” has two parties: Coles and Chandler. The latter is defined as “Service Provider”. The commercial purpose of the agreement is to govern the provision by Chandler of labour to Coles. Of present relevance, cl 1.1 of the agreement contains the following defined terms:

“Agency Personnel means a candidate whom Coles has selected to perform an Assignment;

…

Assignment means the specific work assignment and related services to be performed by the Agency Personnel for Coles;

...

Services means the supply of recruitment services for temporary labour by the Service Provider to Coles and any services incidental to those services or to the performance of the service provider’s obligations under this agreement. The parties acknowledge that despite any other provision in this Agreement, supplied temporary labour will be under Coles direction and supervision and that the Service Provider is not responsible for the work done by the temporary labour supplied by it, or the end-products of that work.”

320. It was common ground that the definition of “Sites” included the Smeaton Grange depot.

321. Clause 3, entitled “Services”, relevantly provides:

“3.1    Engagement of Service Provider

Coles engages the Service Provider as an independent contractor on a non-exclusive basis, as an employment agency to provide Coles with the services of casual staff who are employed or contracted by the Service Provider.

3.2    Compliance

In providing the Services the Service Provider must comply with:

…

(b)    all reasonable directions of Coles;

(c)    when on the Sites, the OH&S Requirements and any other reasonable on-site procedures;

…”

322. Clause 13, entitled “Indemnities”, relevantly provided:

“13.1   Indemnities

The Service Provider releases and indemnifies Coles in respect of any loss, damages, claims, expenses (including legal costs on a solicitor and own client basis) that may be suffered or incurred by Coles, directly in connection with:

(a)    the failure by the Service Provider and/or the Agency Personnel to perform any of its obligations under the terms of this Agreement;

(b)    any breach by the Service Provider and/or the Agency Personnel of any provision of this Agreement;

(c)    any breach of warranty or negligence or other claim with respect to goods and services sold or provided by Service Provider and/or the Agency Personnel;

…

(f)    any negligent act or omission or wilful misconduct of the Service Provider or its employees, agents or Subcontractors and/or the Agency Personnel in connection with this Agreement; or

…

except to the extent that the loss is directly attributable to the negligence or wrongful act or omission of Coles.

13.2    Inclusions

The Indemnity set out in clause 13.1includes an indemnity in connection with:

…

(b)   the injury to or death of any person; and

…”

323. Clause 16(g) relevantly provides that the “Service Provider will be liable for Services or other obligations under this agreement that are performed or discharged by its subcontractors or agents.” It was common ground that Chandler would be liable for any relevant breach by Ready.

324. Mr Parker relied on the following factual findings made by the primary judge in support of his appeal against Chandler:

“Mr Smith was injured because he did not follow the Coles’ system. He failed to follow Coles’ procedures and directions, failed to assess the load before lifting and failed to apply the safe lifting techniques in which he had been instructed, which he knew and had been directed to apply.

…

The lift that Mr Smith described matches the ‘wrong’ mode of lifting illustrated on Coles Logistics Safe Work Practice Manual Handling (LOG027, exhibit 1/80) extracted opposite. Mr Smith made it worse by putting his hands underneath the box, not on its sides or top, thus bending over even further before starting to lift the box.”

325. Mr Parker also relied on the finding of “legal breach” as follows:

“However, Mr Smith’s personal failure to comply with Coles’ directions and manual handling/safe work practice and standard operating procedures do constitute a liability of Chandler Macleod under clause 16(e) by reason of his failure to discharge the obligations in clause 3.2(b) or 3.2(c) or both for which Chandler Macleod is liable.”

326. As her Honour did not find that the indemnities in the agreement applied, it is not necessary to consider them further.

327. Mr Cheshire submitted that it was plain from the definition of “Services” in cl 1.1 that the intention of the parties was that Chandler, as Service Provider, would not be liable for the work done by the temporary labour supplied by it, or the end-products of that work. He also submitted that it was plain from the terms of the agreement that it was Coles and not the Service Provider who had the right to direct persons such as Mr Smith how to do their work.

328. The different possibilities which could arise if a worker falling within the definition of Agency Personnel under the agreement sued Coles are as follows:

1. Coles is 100% responsible for the accident;

2. Coles is x% responsible for the accident and Ready is (100-x)% responsible;

3. Coles is x% responsible and Mr Smith is (100-x)% responsible.

329. Other combinations are possible to take account of all of the parties being responsible. However, consideration of the three scenarios postulated above is sufficient for present purposes.

330. In scenario (1), Chandler would not be liable because there would have been no breach by either Ready or Mr Smith.

331. In order to address scenarios (2) and (3), it is necessary to have regard to s 151Z of the Workers Compensation Act which relevantly provides:

“(1)     If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker’s employer to pay damages in respect of the injury, the following provisions have effect—

…

(d)     if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),

…

(2)     If, in respect of an injury to a worker for which compensation is payable under this Act—

(a)     the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker’s employer, and

(b)     the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer,

the following provisions have effect—

(c)     the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable,

(d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages,

(e)     if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that—

(i)     if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise—the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and

(ii)     if the compensation paid by that employer does not exceed the amount of that contribution—subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution.”

332. In scenario (2), Ready would have been found to have breached its obligation to Mr Smith. However, even on the assumption that this breach constitutes a breach of cll 3.1 or 3.2 of the agreement (which I regard as highly questionable), s 151Z(2)(c) would operate to reduce the judgment entered against Coles to accord with the amount of Coles’ responsibility. Therefore, there would be nothing for Coles to pass on and no damages from any alleged breach by Ready (for which Chandler would, on that assumption, be liable as Ready was accepted to be a sub-contractor of Chandler).

332. In scenario (3), Mr Smith’s damages would be reduced to reflect his responsibility for the accident by way of a deduction for contributory negligence. Therefore, as with scenario (2), the judgment against Coles would accord with the proportion which Coles’ liability bore to the total responsibility for the accident. In neither (2) nor (3) would Coles suffer any loss as a consequence of any breach by Ready or Mr Smith.

333. The analysis set out above deals with the question of any substantive damages awarded against Coles, which does not arise because of the effect of s 151Z(2) and the principles of contributory negligence. But what of the cost incurred by Coles in defending the proceedings in the three scenarios? The question arises whether it can be said that Coles was required to spend money on costs because of a breach by Chandler (or Ready) of its obligations under cll 3.1 or 3.2. This point was addressed by this Court against Coles in Coles Supermarkets v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140 (the 2018 decision) at [109] where White JA (Basten JA and Simpson AJA agreeing) said:

“The costs and expenses incurred by Coles in defending the litigation were incurred not as a direct result of Ready Workforce’s negligence (as found) but as a result of Ready Workforce’s bringing a claim for indemnity under s 151Z(1)(d).”

335. The 2018 decision is to be distinguished from the present case since it was a claim under the indemnity in cl 13 of the agreement as opposed to the present appeal which turns on whether Coles is entitled to recover its costs on the basis that they constitute damages for breach of cl 3.2. Thus the requirement in cl 13 that the loss must be suffered or expenses incurred “directly in connection with” the matters listed in the subparagraphs to the clause does not arise on the appeal. However, in order to recover more than nominal damages for breach of contract, it was necessary for Coles to prove that its loss (in the form of costs) was suffered as a result of Ready’s breaches (for which Chandler was responsible).

336. The measure of damages for breach of contract is that amount of money which will put the injured party in the same position as if the breach had not occurred: Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363, approved in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (Amann). Whether or not Chandler (or Ready) was found to be in breach by the primary judge, the costs would still have been incurred since Mr Smith brought proceedings against Coles because he considered Coles was in breach. Therefore Coles was required to incur the costs of defending the proceedings, whether or not Chandler or Ready or Mr Smith was found to be in breach. Mr Smith’s conduct in bringing the proceedings against Coles was, thus, the substantial cause of Coles having to incur costs to defend itself. Although the question posed in the appeal is a slightly different one from the one which arose in the 2018 decision, the answer is the same: Coles cannot recover its costs against Chandler. This consequence is consistent with the term contained within the definition of “Services” in cl 1.1 of the agreement that Chandler, as the Service Provider is “not responsible for the work done by the temporary labour supplied by it”.

337. There is a further reason why Coles’ appeal must fail. Coles failed to adduce any evidence to establish the amount of costs it had already incurred in the proceedings and would incur in defending the balance of the proceedings. While some latitude may be given by courts in the assessment of damages where the nature of the breach prevents precise evidence as to loss, Coles was still obliged to prove its loss “on the balance of probabilities and with as much precision as the subject matter reasonably permitted”: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768 at [37] (Hayne J), citing Amann, at 80, 83-84 (Mason CJ and Dawson J), 138 (Toohey J), 153 (Gaudron J) and 161 (McHugh J).

338. In the present case, there could have been no particular mystery about such figures. Presumably, Coles’ legal representatives complied with their obligations as to costs agreements under the Legal Profession Act 2004 (NSW). The costs estimates and agreements could have been tendered, together with any invoices rendered to the date on which the evidence was adduced. In these circumstances, the primary judge was correct to find that Coles had failed to prove any loss. For these reasons, I consider that Coles’ appeal ought be dismissed.

Proposed orders

339. For the reasons set out above, I propose the following orders:

In CA 2019/298538 (Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre)

1. Allow the appeal.

2. Set aside the judgment of Gibb DCJ ordered on 25 September 2019 and in lieu thereof, order judgment for the plaintiff.

3. Order the respondent to pay the appellant’s costs of the trial and of the appeal.

In CA 2019/297428 (Ready Workforce (A Division of Chandler Macleod) Pty Limited v Coles Supermarkets Australia Pty Ltd)

4. Allow the appeal.

5. Set aside the judgment of Gibb DCJ ordered on 25 September 2019 and in lieu thereof, order judgment for the plaintiff.

6. Order the respondent to pay the appellant’s costs of the trial and of the appeal.

In CA 2020/55981 and CA 2020/55990 (Coles Supermarkets Australia v Chandler Macleod Group Ltd)

7. Dismiss the appeal.

8. Order the appellant to pay the respondent’s costs of the appeal.

340. I note that it was common ground that if Ready succeeded, the fact that it may have been a joint tortfeasor did not preclude or limit its entitlement to recovery, having regard to s 151Z(1) and (2) of the Workers Compensation Act. However, since the calculation of the monetary sums of the judgments is not obvious from the court books, I propose that the parties be directed to bring in short minutes which reflect the judgment sums which follow from these reasons.

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Decision last updated: 04 September 2020