Stokes, Anne Elizabeth v Blueline Laundry Inc

[1999] TASSC 31

[1999] TASSC 31

PARTIES:  STOKES, Anne Elizabeth
  v
  BLUELINE LAUNDRY INC

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 96/1998
DELIVERED:  25 March 1999
HEARING DATE/S:  4 March 1999
JUDGMENT OF:  Cox CJ, Crawford J, Evans J

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  K E Read
           Respondent:  G W Tremayne
Solicitors:
           Appellant:  Jennings Elliott
           Respondent:  Griffits & Jackson

Judgment category classification:
Judgment ID Number:  [1999] TASSC 31
Number of pages:  3

Serial No 31/1999
File No FCA 96/1998

ANNE ELIZABETH STOKES v BLUELINE LAUNDRY INC

REASONS FOR JUDGMENT  FULL COURT
  COX CJ
  CRAWFORD J
  EVANS J

25 March 1999

Order of the Court:

Appeal dismissed.

Serial No 31/1999
File No FCA 96/1998

ANNE ELIZABETH STOKES v BLUELINE LAUNDRY INC

REASONS FOR JUDGMENT  FULL COURT
  COX CJ
  CRAWFORD J
  EVANS J

25 March 1999

1. The appellant/plaintiff suffered severe injuries consequent upon a subacromium impingement arising from a relatively minor traumatic incident.  She was the supervisor of a laundry in which a piece of equipment designed to press and fold hospital bed linen and theatre greens ceased to function properly due to a garment becoming caught in the rollers.  The learned trial judge found that when an article became jammed in the machine (a not uncommon event), the practice at the laundry was to stop the machine and for a supervisor to see if he or she could free the blockage.  If this was not possible, the practice was to shut the machine down completely and send for the fitters who were employed at the laundry to come and dismantle the machine sufficiently to free the jammed article. 

1. About 8am on 8 April 1992, the appellant noticed that theatre greens being fed into the machine were not emerging at the other end of it and decided to investigate the cause.  She ensured that the machine was stopped, in accordance with standard practice, and got under the machine at a point where there was about four feet of clearance.  She knelt or squatted and observed a pair of theatre greens wound around a roller.  She reached up and tried to push/pull the garments free, tugging at them several times without success.  She thereupon removed herself from under the machine and had it shut down completely.  She then sent for the fitters to come to attend to the problem.  She had done the same sort of thing many times before.  She said that nine times out of ten she was able to fix the problem and it had not been necessary to send for the fitters.  It was not until about 1½ hours later that the appellant began to feel not pain, but some discomfort in her right shoulder which was subsequently diagnosed as a subacromium impingement.

1. The learned trial judge found that the position and movements of the appellant under the machine caused the injury she sustained.  He accepted the evidence of a rheumatologist, Dr Hilton Francis, who said that the usual outcome of a subacromial impingement is a fairly conservative regime with rest, some physiotherapy, steroid medication and occasionally some surgery.  Unfortunately in the case of the appellant, her pain levels were high and her autonomic nerves over-reacted to the physiological changes.

1. The learned trial judge accepted that it was reasonably foreseeable that the appellant, or a person in the same class as she, might suffer an injury by doing the sort of work she was doing when trying to clear the blockage, but he was not satisfied that a prudent employer in the position of the respondent would have done something that the respondent did not do in order to avoid the risk of injury.  Once the machine was stopped, there were no moving parts and the activity the appellant engaged in under the machine was not one that was inherently dangerous. Counsel for the appellant submitted that the respondent ought to have given all its employees instructions not to place themselves in the same position but to immediately send for the fitters who ought to have been educated as to the possibility that tugging at garments caught in the machine while crouching or kneeling in a confined position might cause injury.  This, however, would merely have passed the risk, such as it was, from one employee to another.  Tugging at caught garments in the experience of the appellant had resulted, in nine cases out of ten, in resolving the problem.  The physical activity involved is a very common one in human affairs.  As the learned trial judge pointed out:

"Painters get into confined spaces and work overhead. Sailors do the same thing. Mechanics and plumbers are all reasonably required to get into cramped spaces and work overhead pulling down on fixtures and fittings. It might be said that the risk of injury could have been avoided by the fitters dismantling the machine from the top instead of trying to free the blockage by pulling at any jammed garment, but no reasonable employer would have taken that course when it knew that 'nine times out of ten' a few tugs would solve the problem and enable the production line to resume work."

Although there were some instances given on oath by fellow workers or evidenced by accident report forms in which some injuries had been sustained while workers had been working under the machine in question, the circumstances were not identified with sufficient detail to enable any conclusion to be drawn that the appellant's activities were at all likely to put her at risk of injury.

1. His Honour directed himself in the well-known words of Mason J (as he then was) in Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40 at 47 - 48:

"If the answer be in the affirmative, [that there is a foreseeable risk of injury] it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

Counsel for the appellant submitted that the learned trial judge did not balance out the matters adverted to, but we are of the view that this was a clear case where balancing the magnitude of the risk and the probability of its occurrence (both of which were slight) along with the disadvantages of any alleviating action, it could not be said that a reasonable employer ought to have done anything more than the respondent did.  To require any further action to avoid the risk of injury to the appellant would virtually require the employer to be an insurer of its employees.

1. For these reasons we would dismiss the appeal.