Sulub v Tyres4U Pty Limited
[2018] WADC 139
•28 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SULUB -v- TYRES4U PTY LIMITED [2018] WADC 139
CORAM: GLANCY DCJ
HEARD: 29 JANUARY 2018 - 2 FEBRUARY 2018
DELIVERED : 28 NOVEMBER 2018
FILE NO/S: CIV 3654 of 2016
BETWEEN: FARHAAN SULUB
Plaintiff
AND
TYRES4U PTY LIMITED
Defendant
Catchwords:
Negligence - Duty of care - Breach of duty - Nature of duty owed to employee of labour hire firm - Test for reasonable care - Safe system of work - Causation - Damages - Extent of injury - Assessment of quantum - Back injury - Turns on its own facts
Legislation:
Civil Liability Act 2002 (WA)
Law Reform (Miscellaneous Provisions) Act 1941 (WA)
Occupational Safety and Health Act 1984 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Judgment for the plaintiff
Representation:
Counsel:
| Plaintiff | : | Mr T M Offer |
| Defendant | : | Mr D R Clyne |
Solicitors:
| Plaintiff | : | Vertannes Georgiou |
| Defendant | : | DLA Piper Australia - Perth |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420
Bennett v Minister of Community Welfare [1992] HCA 127; (1992) 176 CLR 408
City of Stirling v Tremeer (2006) 32 WAR 155
Graham v Baker (1961) 106 CLR 340
Grainger v Williams [2009] WASCA 60
Houlahan v Pitchen [2009] WASCA 104
Jongen v CSR Ltd (1992) Aust Tort Reps 81‑192
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182
TA v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Villasevil v Pickering (2001) 24 WAR 167
Waverley v Ferreira [2005] NSWCA 418
Winiarczyk v Tsirigotis [2011] WASCA 97
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
GLANCY DCJ:
Overview
On 15 January 2015, Mr Sulub who was then 24 years old, was employed as a casual worker with a labour hire firm Randstad Pty Ltd (Randstad). He received a telephone communication on that day asking him to work the following day at the defendant's (Tyres4U Pty Ltd) tyre warehouse in Welshpool.
On 15 January 2015, Mr Sulub attended the defendant's premises in Welshpool. This was the first occasion on which he had been there to work. In the course of his work for the defendant that morning he was tasked with lifting and stacking truck tyres which were lying about the yard at the defendant's premises. While carrying out that task, Mr Sulub suffered an injury to his lower back (the Accident).
Mr Sulub commenced an action against the defendant seeking damages sustained as a result of the Accident.
The defendant disputes both liability and quantum.
Witnesses at trial
Mr Sulub gave evidence. He called another employee of Randstad, Mr Nyang'au Devis Esente (Mr Devis) who also worked at the defendant's premises on 15 January 2015. He also called four medical experts, a psychiatrist, Dr Stephen Proud; his general practitioner, Dr Olateju Jinadu; and occupational physicians Dr Steven Overmeire and Dr Neil Ozanne. He also called an expert in biomechanics and ergonomics, Professor Timothy Ackland, and an injury management consultant and vocational rehabilitation provider, Mr Michael Parry.
On the issue of liability the defendant called Mr James Dickinson, Mr Kyne Wheeler and Mr Jamie Higgins, who are all employees of the defendant. The defendant also called an ergonomist, Ms Wendy Pietrocola in relation to liability. In relation to the issue of damages the defendant called evidence from a neurosurgeon, Dr Phillip Hardcastle, an occupational physician, Dr Phillip Meyerkort and an expert in labour market economics, Professor Charles Mulvey.
Each of the professional experts was accepted as being appropriately qualified to express the expert opinions which are before the court in this case.
Facts not in issue
It is not in dispute that on 15 January 2015:
1.The defendant was a company duly incorporated pursuant to the laws of WA (ACN 003 982 554).
2.The defendant was the owner/operator of a wholesale tyre distribution business called Tyres4U which operated at premises located at 90 – 102 Welshpool Rd, Welshpool.
3.Mr Sulub was engaged by a labour hire company Randstad as a general labourer/forklift operator.
4.The defendant engaged Randstad to supply labour, including Mr Sulub, to it to work under its supervision and direction at its premises in Welshpool.
5.Mr Sulub had not previously worked for the defendant at its premises in Welshpool.
6.Mr Sulub was initially tasked with unloading a container of car tyres.
7.After doing so for a period of time, Mr Sulub was subsequently instructed to move and place into stacks of three or four high, truck tyres that were then scattered on the ground at the defendant's premises.
8.The method of lifting and stacking the truck tyres which was employed in the defendant's business is known as the 'barrel stacking method'. The barrel stacking method is a manual method of lifting tyres which involves a worker manually lifting to perpendicular, the tyre which is to be stacked upon another tyre, then leaning the tyre onto the tyre below; lifting the tyre from the ground below and walking oneself and the tyre around the tyre below. This action manoeuvres the top tyre onto the bottom tyre without the worker having to take the full weight of the tyre while also reducing the resistance caused by the friction of the two tyres rubbing together.
10.Shortly after morning smoko Mr Sulub reported that he had injured his back while lifting a truck tyre.
11.When the Accident occurred, Mr Sulub had been attempting to pull one tyre up on top of another tyre rather than using the barrel stacking method. At the time, he had one foot up on the tyre which was on the ground and was pulling on the tyre by pulling it from the opposite side of the tyre towards himself when his foot slipped off the tyre causing him to bear the entire weight of the tyre and to wrench his back.[1]
12.Following the Accident, Mr Sulub attended his general practitioner, Mr Jinadu for assessment and treatment.
13.While the precise model of the tyre which Mr Sulub had been lifting when the Accident occurred is unknown, it weighed somewhere between 39.2 kg and 54.7 kg.
14.Mr Sulub received Workers' Compensation payments in connection with the Accident.
[1] There was some cross‑examination of Mr Sulub (ts 84 – 85) about whether he had his foot resting or leaning on the tyre which was on the ground or whether he was standing with both feet on the tyre pulling the other tyre up. For the purposes of the case though, I do not think the resolution of that issue makes any difference to the findings I make as to liability and quantum.
Legal matters not in dispute
It is evident from the pleadings that the defendant accepts that:
1.As Mr Sulub's host employer there was a sufficient relationship of proximity between it and Mr Sulub for the defendant to owe Mr Sulub a common law duty to take reasonable care of him while he was working under its instruction and directions.
2.It had control of the workplace located at 90 – 102 Welshpool Road pursuant to s 22(1) of the Occupational Safety and Health Act 1984 (OSH Act) and had a duty to take such measures as were practicable to ensure that the workplace was such that persons including Mr Sulub were not exposed to hazards.
3.At all material times, pursuant to s 24F of the OSH Act, it was deemed to be Mr Sulub's employer and owed a duty, pursuant to s 19(1) of the OSH Act to:
(a)provide and maintain a workplace and system of work that so far as was practicable, was such that Mr Sulub was not exposed to hazards; and
(b)provide such information, instruction and training to, and supervision of, Mr Sulub as was necessary to enable him to perform his work in such a manner that he was not exposed to hazards.
Plaintiff's pleaded case
In his particulars, Mr Sulub alleges that his injuries were caused by the negligence and/or breach of duty of care of the defendant in that the defendant:
1.failed to provide a forklift or other mechanical lifting device to the plaintiff to perform the task of lifting the tyres;
2.failed to instruct the plaintiff to use a forklift or other mechanical lifting device to lift the tyres;
3.failed to identify and assess the risk associated with manually lifting the tyres;
4.failed to instruct the plaintiff to seek the assistance of his co‑worker at all times to manually lift the tyres;
5.instructed the plaintiff to perform an ergonomically unsafe manual handling task;
6.failed to warn the plaintiff of the risk of injury associated with manually handling the tyres without assistance;
7.failed to instruct or train the plaintiff on how to safely engage in manual handling of large tyres; and
8.failed to provide any or adequate supervision of the plaintiff whilst performing the task of lifting the tyres.
The same particulars are repeated as particulars of the allegations of breach of the obligations under s 19 and s 22 of the OSH Act.
Defendant's pleaded case
The defendant denies liability for Mr Sulub's injury and says that it exercised reasonable care and complied with the relevant statutory duties in the OSH Act.
The defendant also says that:
1.the manner in which the plaintiff was instructed to stack the relevant tyres was safe and reasonable in the circumstances;
2.the plaintiff had the assistance of an employee of the defendant who was working with the plaintiff had he required it; and
3.if the plaintiff suffered an injury to his back at all, it was occasioned as a result of the plaintiff's own negligence in that he:
(a)attempted to lift the tyre in a manner that he knew or ought to have known was unsafe;
(b)failed to use a safe lifting technique when lifting the tyre; and
(c)failed to lift the tyre in accordance with his manual handling training and his instruction by the defendant.
The defendant also says that any breach of a duty under the OSH Act does not confer a right to claim damages.
What issues arise for determination?
Based on the pleadings and particulars of damages filed by Mr Sulub and the defendant, the following issues arise for determination:
1.What training and supervision did Mr Sulub receive in the appropriate method for lifting and stacking the tyres?
2.Assuming he was adequately trained and supervised in the barrel stacking method, was Mr Sulub provided with a safe system of work?
3.What principles govern the breach of duty of care in this case?
4.Did the defendant breach its duty of care at common law or under the CL Act?
5.Did the defendant breach its obligations under the OSH Act s 19A or s 22A?
6.If so, does breach of either of those sections of the OSH Act give rise to a liability to pay damages?
7.What was Mr Sulub's pre‑Accident medical condition and lifestyle?
8.What injuries did Mr Sulub sustain in the Accident?
9.Which, if any, of Mr Sulub's injuries and symptoms were caused by the Accident?
10.What is the appropriate assessment for past special damage?
11.What is the appropriate assessment for past and future economic loss?
12.What is the appropriate assessment for future medical care?
13.What is the appropriate assessment for non‑pecuniary loss?
14.To what quantum of damages is Mr Sulub entitled?
Breach
Central to resolving the issue of breach of duty is the ascertainment of:
1.What training in or knowledge of appropriate means of lifting of heavy objects Mr Sulub had prior to 15 January 2015?
2.What training and supervision Mr Sulub received from the defendant on 15 January 2015?
Facts going to breach which are not in dispute
The facts going to liability which are not in dispute are set out in [8.1] – [8.13] of this judgment.
What training and knowledge did Mr Sulub have prior to 15 January 2015?
Evidence
Mr Sulub gave evidence of his work history prior to 15 January 2015. His evidence was that most of his recent previous work had involved manual work as a store person. His evidence was to the effect that none of his previous employment or engagements had involved the lifting and stacking of tyres and although many had involved lifting and manual handling of some sort, none had involved unwieldy objects or objects weighing what these truck tyres were said to have weighed.
Mr Sulub's evidence was that when he was employed by Randstad he undertook a pre‑employment assessment[2] and a medical questionnaire[3] (both dated 17 December 2014) and watched an induction video for blue collar workers, following which he was required to complete a temporary employee induction assessment.[4]
[2] Exhibit 1.
[3] Exhibit 2.
[4] Exhibit 3.
Mr Sulub's evidence was he had not been shown how to safely lift a heavy tyre before 15 January 2015.
Findings regarding Mr Sulub's knowledge of and experience in lifting prior to 15 January 2015
It is evident from an examination of the pre‑employment assessment, the medical questionnaire and the induction video that none of those materials touched upon the safe manner of lifting truck tyres and were confined to assessing Mr Sulub's knowledge of, or providing training in relation to the techniques appropriate for, the lifting of regularly shaped objects such as boxes, which can generally be lifted safely by bending one's hips and knees and to squat down to the load and keeping the object close to the body when straightening the legs to lift it.
This is consistent with Mr Sulub's evidence that he had not been shown how to safely lift a heavy tyre before 15 January 2015.
I find that Mr Sulub had had no training in, or experience with, the lifting of tyres specifically, or with particularly heavy and unwieldy objects more generally, prior to 15 January 2015.
What training and supervision was Mr Sulub given by the defendant on 15 January 2015?
Evidence was given by Mr Sulub, Mr Devis, Mr Wheeler, Mr Higgins and Mr Dickinson about the training which Mr Sulub received from the defendant prior to commencing the task of lifting and stacking the tyres.
Mr Sulub's evidence
Mr Sulub gave evidence that when he arrived at the defendant's premises on the morning of 15 January 2015 he attended at the front office and was shown to the warehouse at the back where he met the supervisor who was waiting for him there. In the warehouse he was introduced to another Randstad employee and a forklift operator. Mr Sulub was unable to recall the names of any of these people.
Mr Sulub's evidence was that the supervisor explained to him that he and the other Randstad employee were to unload the tyres from two shipping containers. Mr Sulub said he was told this would be done by one of the two men rolling the tyres from the shipping container down a ramp to the yard where the other man would then lift and place the tyres on a rack which, when full, would be taken away by the forklift operator who would then bring back another empty rack. He says they were told the two of them could swap between the container and the yard as they liked.
Mr Sulub gave evidence that he was given these instructions near the containers outside in the yard and that he did not receive any further instruction at that time.
Mr Sulub gave evidence that he commenced that task and continued with it until about 10.30 am or 10.40 am (inclusive of a 10 minute break for morning tea) at which time the supervisor gave them a new task.
Mr Sulub's evidence was that he was told the new task was to stack into piles of three or four tyres, large truck tyres of various sizes which were lying haphazardly about the yard. Like tyres were to be stacked together in each pile.
Mr Sulub gave evidence that he received no additional instruction about how he was to undertake the task.
Mr Sulub said that he continued working with the other Randstad employee pulling and pushing one tyre on top of the other. He said he was working independently on this task but next to the other Randstad worker who was also working independently on the task. His evidence was that they were able to, and did, call upon one another to assist, particularly with the lifting and stacking of the fourth tyre onto the stacks.
Mr Sulub's evidence was that he undertook this task for about 40 or 45 minutes before the Accident.[5]
[5] ts 32 (29 January 2018).
Mr Sulub's account of how the Accident occurred was:
I was pulling – there was already a tyre that was already on – level on the floor. So as I was pulling the second tyre on top of the – on top of the - that tyre that was already levelled on the floor, I was using one of my foot [feet] to brace against the first tyre just to sort of get a good grip or brace. And as I was pulling it, most of say, I will say about half of the weight at that time I had on sort of lost balance, unexpected because I was using my legs, and then because of that fall I - that weight came on to lower back. Straight away I felt sharp pain, dropped the tyre and that's how I – that's how the injury came.[6]
[6] ts 31 – 32 (29 January 2018).
Mr Sulub's evidence was that as this occurred he felt a sharp pain in his lower back through his right buttock. He says he told the forklift driver and the supervisor and was directed to the staff waiting area where he sat on the couch for approximately 20 minutes to see if his back would get better. When it did not, he drove to the doctor in Cannington. He completed an incident report form before he left the defendant's warehouse.
In cross‑examination, Mr Sulub denied that he was given any instruction as to how to safely lift and stack the tyres from any person prior to commencing the task. He denied working with, or being supervised by, any employee of the defendant while performing this task. He also denied that on arrival at the defendant's premises he had been given an induction that included watching videos that provided information about the Tyres4U business or that safety exits, the location of wet weather gear and sunscreen was pointed out to him on a tour of the premises. He also denied being asked about his experience with manual handling.
Mr Sulub denied that prior to commencing either task he was shown by an employee of Tyres4U named Jamie, in the presence of a supervisor, how to lift the tyres using the barrel stacking method. He also denied that he then stacked tyres using that method while being watched by Jamie.
It was also put to Mr Sulub that he had to be corrected by Jamie eight times because he been lifting the entire tyre instead of putting one side of the tyre over the others and simply rotating them onto the stack. Mr Sulub's evidence was that he did not unload the containers with anyone called Jamie and had not been corrected at all.
Mr Devis' evidence
Mr Nyang'au Devis Essente (Mr Devis) gave evidence on 31 January 2018.
Mr Devis is a forklift driver who is also a casual employee of Randstad. His evidence was that he was tasked by Randstad to work at the defendant's premises on 15 January 2015.
His evidence was that he arrived there at about 8.30 am in the morning and met a man whose name he could not remember but who he described as 'a medium age man, well fed.[7] He said after identifying himself to that man he was told he would be unloading containers and stacking tyres that were on the ground. He gave evidence that before commencing the job he was he was shown the location of the toilets and the lunchroom and where he should keep his belongings.
[7] ts 165 (31 January 2018).
Mr Devis' evidence was that he worked with another employee from Randstad. He could not remember the man's age but described him as follows:
He's a young guy, almost my age, not very white but is white – white light skin.[8]
[8] ts 166 (31 January 2018).
Mr Devis said that the other man had told him he was from Melbourne.
He said that after about an hour he had a smoko and when he returned he was instructed to stack the tyres that were on the ground to make space for the tyres which were still to be unloaded from the container.
His evidence was that, apart from being told to look at the treads and the number written on them so that like tyres would be stacked together, he says he was not shown anything else about how to perform the task.
His evidence was that the other Randstad worker was injured in the middle of the day. He recalled him laying down on the floor in the office but does not know what happened to him after that.
Mr Devis gave evidence that he received instruction in the barrel stacking method for stacking the truck tyres after the 'guy on the forklift' had come. It was not clear from the evidence whether the forklift driver showed him the technique or whether he was working with the forklift driver and it was a third person who demonstrated the barrel stacking method. The examination on this issue was as follows:
At any point in the day, were you shown how you were to put the tyres into piles? --- Yes, after this guy on the forklift had come and he was a bit slow, and then he decided to show me how to be quicker or how to do it quicker, so that is when he showed me like I can do it in – in the other way, like roll the tyre – or you grab the tyre from the ground, you push it to the other one and then you push around it.
Okay. When he gave you that instruction, do you know if Mr Sulub was sorry, I beg your pardon, do you know if the other Randstad worker was still with you at that time or whether he had already left? ---No. I can't remember very well, but I - I remember he – he told me about the – about it. But I think I was alone because he showed me how to do it. I think I was alone.[9]
[9] ts 168 – 169 (31 January 2018).
Mr Devis gave evidence that he worked at Tyres4U from 15 January 2015 to 21 January 2015. His evidence was that on 16 January 2015 he worked with another Randstad employee named Joseph and they were stacking tyres on that day. When asked whether he saw Joseph receive any training in how to stack the tyres his answer was:
I'm the one who trained him – or showed him what to do because I'd already worked there the first day.[10]
Mr Dickinson's evidence
[10] ts 170 (31 January 2018).
Mr James Dickinson gave evidence on 2 February 2018. His evidence was that on 15 January 2015 he held the positon of branch manager of Tyres4U, a position he had held for seven and a half years, although he had by then worked for Tyres4U for about 12 years in total. His evidence was that he commenced work for the defendant doing clerical work and assisting in the warehouse, then moved into the sales manager role and ultimately the branch manager role.
Mr Dickinson's evidence was that new workers who start at Tyres4U are required to complete a simple online induction after which they are provided with general information about the company, given a tour of the premises and then receive buddy training relevant to the work they will be performing.
Mr Dickinson's evidence was that he did not meet Mr Sulub on 15 January 2015.
His evidence was that under the buddy system, a person commencing work requiring them to lift and stack tyres would be shown how to do it a couple of times by the buddy and the buddy would answer any questions the new worker might have, following which the new worker would be asked to try to undertake the task while being watched by the buddy.
Mr Dickinson's evidence was that on a normal day, there would be between 8 to 10 people working at the defendant's warehouse.
Mr Dickinson also gave evidence that there have been only two injuries in his time working at Tyres4U, the injury Mr Sulub suffered and a later injury to a gentleman in the warehouse, Samuel Taffao, which occurred on 17 May 2016.
In cross‑examination, Mr Dickinson accepted that if a new worker had not been shown the safety aspects of the job and had not been working with a buddy, that would have been a falling down of the system that ought to have been in place.
Mr Wheeler's evidence
Mr Kyne Wheeler gave evidence that he was the warehouse manager at the WA branch of Tyres4U on 15 January 2015 having commenced there in May 2014.
His evidence about what happened when Mr Sulub arrived on 15 January 2015 is as follows:
So when he arrived, we went through our normal run around the warehouse or our induction, and that includes fire exits, positioning of where the tyres are, where the toilets are, hats, sunscreen, wet weather gear, all that sort of stuff, lunch room, who's where and who does what, and then we take them out and show them what they need to do.
I want to know what you actually did on that day – I know you say 'we take them out', but did you ---? --- Sorry, yes, I – I took him out and I ran him through that induction process.
Having done the induction process, what did you then do with him, if anything? --- So I took him outside, I showed him where he would be working with the containers and the other guys that were already there, I then ran him through and showed him how we lift the tyres and what we do once they come out of the container, I then introduced him to Jamie and a couple of the other guys that were out there, I made sure that he was confident or knew what he was doing as far as the lifting was, I got Jamie to run him through that as well, so I knew Jamie was showing him the proper things.
…
So I introduced him to Jamie, Jamie then ran him through what to do, pretty much I made sure he was comfortable and then left him to buddy up with Jamie.
…
CLYNE, MR: In terms of showing him how to lift ---? --- Mm hmm.
--- what did you actually do? --- I showed him to stack – how to stack the tyres. So three tyres in a row.
Then? ---After I'd shown him, I got him to do one, so he knew what to do, and then, like I say, I introduced him to Jamie and Jamie ran through it.
Were you there when Jamie ran through it? --- Yes.
What did Jamie do? --- Same. As I've just described. So the three barrel stacking of tyres.[11]
[11] ts 289 – 290 (2 February 2018).
His evidence was that he then left Mr Sulub with Jamie as his buddy and only saw him later when he was coming into the lunchroom after having injured his back. Mr Wheeler gave evidence that Mr Sulub told him that he had hurt his back, that he did not need immediate medical attention and just wanted to go home for the day.
In cross‑examination, Mr Wheeler said he recalled giving separate inductions to the two casual workers, who he now knows to be Mr Devis and Mr Sulub. When it was put to him that Mr Devis' evidence was that the two men were shown around together, Mr Wheeler conceded that he could not really recall and his memory might not be correct owing to the passage of time.
It was put to Mr Wheeler that both Mr Sulub and Mr Devis said they received no instruction in how to lift and stack tyres before commencing the task. The following exchange took place:
… there was no instruction about lifting tyres at that point in time, and that's the truth, isn't it? --- No. We definitely showed them how to lift.
So both these gentlemen are wrong? --- I'm not sure.
It's certainly what ought to have happened, isn't it? --- Yes.[12]
[12] ts 295 (2 February 2018).
Later in his cross‑examination, Mr Wheeler maintained that Mr Devis had been paired with Samuel, a large Maori man while Mr Sulub had been partnered with Jamie.
When it was put to him in cross‑examination that on the following day Mr Devis was partnered with the new Randstand employee who replaced Mr Sulub, Mr Wheeler acknowledged that if that had been the case it would have been a breach of the safety procedure as Mr Devis had only been there one day. He then said that Mr Devis would not have been the buddy but acknowledged that he could not recall who had been buddied with whom as a fact on that day, saying 'I can't recall it from that long ago'.[13]
Mr Higgins' evidence
[13] ts 297 – 298 (2 February 2018).
Mr Jamie Higgins gave evidence on 2 February 2018. His evidence was that on 15 January 2015 he was fleet monitor at Tyres4U, where he had then worked for about five years. He was a warehouse store person at Tyres4U prior to that time. His evidence initially was that he recalled meeting Mr Sulub outside near the containers when Kyne Wheeler introduced him but then went on to say that it may have been in the office when he first saw Mr Sulub but it was outside the containers that they were first formally introduced.
Mr Higgins gave evidence that both he and Samuel showed Mr Sulub how to stack the tyres in the yard in front of the containers. He said that Mr Sulub then demonstrated that he could do it correctly and then did it correctly for the next three or four times but that after that they noticed that he was doing it incorrectly. Mr Higgins then showed him the proper way again and then required Mr Sulub to show him several more times how to lift and stack the tyres correctly because he continued to do it incorrectly. When asked how many times Mr Sulub was corrected he answered 'eight, nine times within an hour or something'.[14]
[14] ts 299 (2 February 2018).
His evidence was that after they had all had a break they went back to stacking the tyres but Mr Sulub continued to do it 'his way', rather than the correct way and eventually Mr Sulub told them he had hurt his back and Mr Higgins sent him to Kyne.
In cross‑examination, Mr Higgins' evidence was that no other person was present when he and Samuel instructed Mr Sulub in the correct technique to use to lift and stack the tyres. His evidence was that Mr Wheeler would have gone back to the office after making the introductions because he had his own job to do and he did not stand around and watch them do their jobs. He later said that Mr Wheeler could have been standing off to the side at the time when Samuel and he were showing Mr Sulub what to do, but that Mr Wheeler was not involved in the training of Mr Sulub.
Mr Higgins' initial evidence was that Mr Devis was not present in the yard. Later he conceded that if Mr Wheeler had said that Mr Devis was with Samuel in the yard, then he may have been because he did not really remember. When asked about details of the day, Mr Higgins said that as soon as he arrived that day he started barrel stacking tyres. He later accepted that if Mr Sulub and Mr Devis had been unloading car tyres from containers until smoko and their work barrel stacking did not commence until after that, he would not have been introduced to the men until after smoko because he 'didn't do car tyres'.[15] His evidence was that if Mr Wheeler said that Mr Sulub had been given instruction about how to safely lift and stack the truck tyres earlier in the morning, then it may have been by reference to passenger tyres because he was sure that he himself had only demonstrated the lifting and stacking of truck tyres at the time he met the two men after smoko.
[15] ts 306 (2 February 2018).
When Mr Higgins was pressed in cross‑examination about whether Mr Sulub had commenced the task of lifting and stacking the truck tyres without any instruction the following exchange took place:
… He would have got instruction from me.
Would have got instructions? --- Well, cos you don't do it alone though.
You don't recall? --- Well, I know that when Kyne first introduced us to him, that's when we showed him how to actually stack the truck tyres. But I don't believe that he was doing any truck tyres before that.
And you don't know whether he was doing car tyres before that? --- Well, apparently he was, but ---
So he'd been working there for some time when you were asked to train somebody in how to lift truck tyres? --- I'm not too sure.
You're not too sure. And you don't know what he was doing before you were asked to train him? --- No.
So he might have been doing car tyres, he may have been doing truck tyres; you have no way of knowing? --- Well, he wouldn't have been doing trucks cos the forklift was with us and you can't do truck tyres ---
You don't know what he was doing, do you? --- No.
You showed a person, at some point in time, how to lift truck tyres? --- Yeah.
And you said, 'This is a faster way of doing it'? --- No. 'This is the correct way of doing it'.
Whatever you said, you told somebody that? --- What, the correct way?
See, the only person – the only Randstad employee who says he was shown anything of that description was Mr Devis, who had been doing truck tyres for – for some time when he was shown how to do things faster? --- Mm hmm.
Remember that? --- He didn't have anything to do with me.[16]
[16] ts 306 – 307 (2 February 2018).
In re‑examination, Mr Higgins said he specifically remembers that Mr Sulub was the man he had trained to lift the truck tyres because he was the only person injured that day.
Other evidence
There was no evidence led at trial in the form of records completed by any of the defendant's employees or by Mr Sulub or Mr Devis in which it is acknowledged that training was provided or received as part of an induction onto site that would corroborate the evidence of any of the defendant's employees about the provision of training.
Findings regarding training and supervision provided by the defendant to Mr Sulub on 15 January 2015
I find on the balance of probabilities that Mr Sulub did not receive any instruction in the barrel stacking method at any time prior to being tasked with stacking the truck tyres which were lying about the defendant's yard. Further, I find on the balance of probabilities that he was not supervised by a buddy when carrying out the task.
Mr Dickinson's evidence was as to what should happen when new employees commence work at Tyres4U. He gave no evidence about what actually happened on 15 January 2015.
The evidence given by Mr Sulub and Mr Devis as to the lack of training is consistent and was unwavering. Apart from the issue of Mr Devis' description of the other Randstad employee with whom he had been working being a man of light skin colour (and Mr Sulub being a dark skinned Somali man), Mr Devis' account of the morning is largely consistent with, and corroborative of, Mr Sulub's evidence.
Mr Sulub and Mr Devis had not met prior to 15 January 2015 and there was no suggestion that they had met since or that they had colluded to give a consistent account of the events of that morning. I am satisfied that each gave an honest account of their arrival at the defendant's premises and what had occurred there.
In contrast, the defendant's employees accounts of what occurred contain inconsistencies which lead me to conclude that the evidence from those witnesses is unreliable. For example, Mr Wheeler acknowledged that he really could not recall whether he gave one induction to both Mr Devis and Mr Sulub together or two separate inductions. I am satisfied that he did not have a clear recollection of the events of the day and was essentially giving evidence of what happened based on what should have happened rather than from a specific memory of the events of the day.
Mr Wheeler's account of giving instruction to Mr Sulub about how to barrel stack the truck tyres which he says was then repeated by Mr Higgins is inconsistent with the evidence given by Mr Higgins himself. Mr Higgins gave evidence that he and Samuel demonstrated the safe procedure for barrel stacking the truck tyres to Mr Sulub and that Mr Wheeler was not involved. Mr Higgins' evidence was that even if Mr Wheeler had been off to the side unnoticed by him, Mr Wheeler had certainly not demonstrated the correct lifting and stacking method to Mr Sulub. Mr Higgins' account of who was working in the yard is also significantly different from that given by Mr Wheeler.
In so finding, I am not of the view that the defendant's employees gave dishonest evidence. While it was clear from the evidence given that there had been discussion between some of those witnesses about this matter prior to giving their evidence, the differences in their evidence was such that there could be no suggestion that they had colluded to give consistent but untruthful accounts of the events in question. Rather, I am of the view that their evidence was given in a manner that suggested that the answers were answers given based on what should have happened, rather than based on an actual memory of what had in fact happened on 15 January 2015. This is unsurprising given how long ago the incident occurred on what, for these witnesses, would have been an ordinary working day.
What principles govern the breach of duty of care in this case?
As I have said previously, the defendant accepts that it had a duty to take reasonable care of the plaintiff while the plaintiff was working under its instruction and direction at its premises: see [9].
At common law the conduct of the defendant is to be measured by the standard of a reasonable employer. The question of breach at common law must be determined having regard to the provisions of the CL Act given that the Accident occurred on 15 January 2015.
In the circumstances of the present case, s 5B and 5C of the CL Act set out the circumstances in which a defendant will not be liable for harm caused by the fault of another person.
Section 5B(1) of the CL Act provides that a defendant will not be liable for harm caused by that person's fault 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);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the position of the defendant would have taken those precautions.
Reasonable foreseeability is to be determined objectively.[17] The section requires the court to determine what a reasonable person in the position of the defendant would have done by way of a response to a foreseeable risk. Whether a reasonable person would have taken precautions against a risk is to be determined prospectively, not with the wisdom of hindsight.[18] The answer to this question turns on the facts of the case as they are proved in evidence.[19]
[17] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gleeson CJ).
[18] Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420 [31], [40] (French CJ, Gummow, Hayne, Heydon & Crennan JJ).
[19] Adeels Palace Pty Ltd v Bou Najem [40].
Section 5B(2) of the CL Act states:
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; and
(d)the social utility of the activity that creates the risk of harm.
This subsection restates the common law position as set out in Wyong Shire Council v Shirt.[20]
[20] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Waverley v Ferreira [2005] NSWCA 418 [45].
As Mr Sulub claims damages for the impairment of his mental condition which he says followed the physical injury he suffered as a result of the Accident, pt 1B of the CL Act also applies.
Section 5S of the CL Act provides that a defendant does not owe a duty of care not to cause the plaintiff mental harm (an impairment of a person's mental health: s 5Q) unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Section 5(3) provides that for the purposes of the application of s 5 in respect of consequential mental harm (being defined in s 5Q as an impairment of a person's mental condition that is a consequence of a personal injury of any kind), the circumstances of the case include the personal injury suffered by the plaintiff.
Did the defendant breach its duty of care at common law or under the Civil Liability Act 2002?
I find that the risk of injury to any worker, and in this case to a new worker such as Mr Sulub, from the manual handling of the tyres was reasonably foreseeable and a not insignificant risk.
I find that it was readily foreseeable that a person untrained in the correct method of manually lifting and stacking large truck tyres weighing somewhere between 39.2 kg and 54.7 kg could be injured in the course of undertaking that task.
Accordingly, I am satisfied that the injury to Mr Sulub was caused by the defendant's failure to avoid this reasonably foreseeable risk by ensuring he was trained to safely lift and stack the tyres and adequately supervised in the course of doing so.
Would adequate training and supervision in the barrel stacking method have discharged the duty of care owed to Mr Sulub?
Given what I have found about the lack of adequate training and supervision, it is not strictly necessary to determine this issue. However, for the sake of completeness I will deal with the issue of whether, if the plaintiff had received adequate training in the barrel stacking method and adequate supervision in stacking the tyres using that method, the defendant would have discharged its duty to the plaintiff.
Evidence regarding adequacy of barrel stacking method
Evidence as to that issue was given by Ms Pietrocola and Professor Ackland.
There was no evidence given on behalf of either party about the way in which tyres of similar size are stacked in other businesses akin to the defendant's.
Ms Pietrocola's evidence
Ms Wendy Pietrocola gave evidence on 31 January 2018. Her report, dated 27 November 2017, became exhibit 20.
Ms Pietrocola gave evidence that she attended the defendant's warehouse in Welshpool on 19 October 2017 and undertook an inspection of the task of stacking tyres using the barrel stacking method which workers at Tyres4U are instructed to use on tyres up to RR150 which weigh about 52 kg. Ms Pietrocola gave evidence that she saw the DVD of the barrel stacking method[21] which the defendant says was the method shown to the plaintiff prior to his commencement of the stacking task.
[21] Exhibit 9.
Ms Pietrocola gave evidence that in addition to watching the DVD she watched Mr Wheeler lift and stack tyres using the barrel stacking method and also lifted and stacked a tyre using that method herself. Her evidence was that she had no difficulty stacking the large tyres herself using that method.
Her report[22] states that she was told that the barrel stacking method has been employed at the defendant's warehouses nationally for about 30 years. Her evidence was that in the seven years prior to the Accident, only one injury was reported at the defendant's premises which involved a worker stacking of tyres. Her evidence was that she concluded from that fact that it was quite unlikely that there was a chance of injury occurring from utilising that method of stacking tyres.[23]
[22] Exhibit 20.
[23] ts 200 (31 January 2018).;
In her report, Ms Pietrocola stated:
Mr Wheeler and Mr Dickinson informed me that the workers at the warehouse had been consulted in the task of stacking tyres and a number of options for stacking tyres had been assessed and trialled, including using mechanical aids to do the task and the outcome of these consultations was the workers resolving that stacking tyres using the Tyres4U method was the easiest and their preferred way to carry out the task.[24]
[24] Exhibit 20 page 4.
She said in evidence that this told her that the task had been identified as potentially hazardous and that a risk assessment had been undertaken and workers consulted. Her findings (summarised at par 1.5 of her report) are:
(1)the three step risk management process of hazard identification, risk assessment and risk control was carried out … for the task of stacking of tyres in compliance with Regulation 3.4 of the Western Australian Occupational Safety and Health Regulations (1996); and
(2)the implemented risk control for the task, that is, the Tyres4U method of stacking tyres, minimises the risk of injury to workers carrying out the task, in accordance with the WA Code of Practice – Manual Tasks (2010).[25]
[25] Exhibit 20 page 1.
In cross‑examination, Ms Pietrocola accepted that it would be essential that workers receive appropriate training in the use of the barrel stacking method because dealing with a heavy and awkward object such as these tyres without training would be potentially very dangerous.[26]
[26] ts 202 (31 January 2018).
Ms Pietrocola was asked in cross‑examination whether employing mechanical handling equipment would have reduced the risk of injury from low to negligible. She said she was unable to answer that question because she would have to consider the way in which the mechanical equipment were pushed into position and operated in order to assess the risk.
In cross‑examination she maintained her view that the barrel stacking method employed by the defendant was a safe method that had a low risk of resulting in injury to a worker.[27]
Professor Ackland's evidence
[27] ts 207 (31 January 2018).
Professor Timothy Ackland prepared two reports and gave evidence on behalf of the plaintiff.[28]
[28] Exhibit 13 (Report dated 28 June 2017; Supplementary Report dated 30 November 2017).
His evidence was that it was his opinion that the general instructions in manual handling, such as to bend one's knees and keep the load close to the torso and keep the back straight, which Mr Sulub had had prior to 15 January 2015, would be insufficient training for the task of lifting and stacking truck tyres. His evidence was that this generalised instruction in manual handling assumes optimal conditions - that is, a square box with handles etc, and not the manual handling of bulky tyres which, in his view, required specific training and induction, to handle safely.
The hazards identified by Professor Ackland in the manual lifting of tyres were: first, the action and posture adopted by the person lifting the tyres; and second the forces and loads involved in the lifting and stacking of the particular tyres.
Professor Ackland's evidence was that he had assessed the risk of injury resulting from the manual lifting and stacking of tyres of the size and weight that Mr Sulub had been lifting of 15 January 2015 as 'moderate' but more likely 'high' risk.[29]
[29] ts 97 (30 January 2018).
He described the task as 'unsafe'. He said that it carried a high degree of neuromusculoskeletal injury because the tyres were bulky and there would have been friction caused by the rubbing of rubber on rubber which would have occurred in the process of stacking the tyres.
Professor Ackland's evidence was that there were several things that the defendant could have done to make the task of stacking the tyres safer. These included using a forklift, pallet jack, mobile tyre hoist, mobile crane or a ramp.
Further he said that systems that did not require the stacking of tyres would have been even safer. As an example, he said stacking the tyres against the warehouse wall rather than in piles of three or four tyres high would be a safer system.[30]
[30] Exhibit 13 (Report of 28 June 2017, page 6).
Professor Ackland gave examples of four mechanical means of lifting the tyres. They were shown at figure 8 in his report. They included two lifting devices which were on wheels which he acknowledged would only work well on smooth surfaces and which therefore would not have been suitable for use in the defendant's yard.[31]
[31] ts 96 (30 January 2018).
His evidence was that there were two lifting devices identified at figure 8 of his report which would have been suitable for use in the defendant's yard. One he indicated was available for $300 and the other he thought would be around $1,000. He acknowledged that both would have to be used in concert with a forklift which of course would cost considerably more to purchase.
Professor Ackland gave evidence that neuromuscular risks are cumulative; that is, breaks between bursts of activity will allow the skeletal tissue and the muscular tissue to recover and reduce the risk of injury. His evidence was that taking a break of between 3 to 5 minutes duration after 30 minutes of a reasonably intense activity would be good practice because the risk of injury increases after 30 minutes of continuous intense activity. When asked to quantify the increase his evidence was:
[So] as I say these risks are cumulative and so the longer one works in a manual task the risk of injury increases.[32]
[32] ts 200 (31 January 2018).
Professor Ackland gave evidence that if a new worker were given adequate instruction in how the tyres were to be safely manually lifted and was supervised in the task by a buddy who was an experienced worker familiar with the task and the task were only performed for 30 minutes at a time, then the risk would be reduced.
His evidence was that the barrel stacking method demonstrated in the DVD[33] and which was the system which was supposed to be employed by workers at Tyres4U was a 'marked improvement' in the system from that which Mr Sulub was using at the time of the Accident.
[33] Exhibit 9.
Professor Ackland's evidence was that the use of historical data of injuries as part of assessment of risk (which was used by Ms Pietrocola) is fine for generalised recommendations but does not necessarily represent the injury risk relating to an individual's actions when performing the task. That is, in his view an employer needs to take account of an individual employee's circumstances and make a risk assessment for the individual worker. The point he was making is that although there may have been very few injuries over time from the performance of a particular task, a worker returning from leave who had become unconditioned to the performance of the task or, as was the case for Mr Sulub, a person performing the task for the first time, may be at greater risk of injury than another worker more familiar with the task.
In cross‑examination, Professor Ackland accepted that all manual handling tasks bring with them some low risk that the person carrying them out will be injured.
Professor Ackland's evidence was that he would have assessed Mr Sulub as being at low risk of injury from the task of barrel stacking the tyres if he had been instructed to handle them in the way shown on the DVD and had been properly supervised in the performance of his duties.
Finding regarding adequacy of the barrel stacking method
It was accepted by both Ms Pietrocola and Professor Ackland that lifting and stacking tyres using the barrel stacking method carried some risk to a worker. Both agreed that the risk would be low for a worker properly trained and supervised in the performance of the task. Professor Ackland's evidence was that the risk to a person new to the task would likely be higher than that to an experienced worker.
In my view, it has not been established by Mr Sulub that a reasonable person in the positon of the defendant would have necessarily engaged any of the non‑manual handling methods which were identified by Professor Ackland at figure 8 of his report. Two of the mechanical hoists, the court was told by Mr Sulub's own expert, would not be suitable for use in the defendant's yard because they required a flat smooth surface to operate effectively. No evidence was led as to how much the risk would be reduced by the use of the other two hoists which would have had to be used in conjunction with a forklift. Ms Pietrocola gave evidence, which I accept, that there were other risks of injury arising from moving those kinds of hoists into position and also from having to manually manoeuvre the tyres onto the hoists. That risk was unable to be quantified.
Further, no evidence was led regarding the process of lifting and stacking truck tyres which is utilised in other businesses that may have aided the assessment of what were reasonable steps to take to further reduce the risk of injury.
The onus was on Mr Sulub to establish to the requisite standard that the defendant did not take reasonable steps to avoid the risk. I am not satisfied that that onus has been discharged.
Accordingly, I am unable to find, on the basis of the evidence, that adequate training and supervision in the barrel stacking method would not have satisfied the defendant's duty to take reasonable steps necessary to reduce the reasonably foreseeable risk of injury to a worker employing that method to stack the tyres in question.
Did the defendant breach its obligations under s 19A or s 22A of the OSH Act in circumstances giving rise to an obligation to pay damages?
Given the findings I have made about the breach of the defendant's acknowledged duty to Mr Sulub to take reasonable care to avoid reasonably foreseeable risks, it is not necessary to resolve the question of whether the defendant was in breach of its duties under the OSH Act or whether any such breach would have given rise to an entitlement to damages.
Causation
Common law
At common law, causation requires the court to make two separate inquiries. The first involves the question of causation in fact. The second involves the legal question of whether the defendant should in law be responsible for the consequences of the breach and, if so, to what extent.[34]
[34] City of Stirling v Tremeer (2006) 32 WAR 155 [73] (McLure JA); Grainger v Williams [2009] WASCA 60 [179] and [180] (McLure JA).
The plaintiff bears the onus of proving that his loss and consequent damage was caused, or materially contributed to, by the defendant's negligence. A defendant's act or omission need not be the sole cause of the loss of damage. It suffices that the negligent act or omission materially contributed to the damage.[35] Once the plaintiff has demonstrated a breach of duty followed by an injury then a prima facie causal connection will have been established and the defendant will then have an evidential burden to bring evidence to establish that the breach had no effect on the injury.[36]
Civil Liability Act 2002
[35] City of Stirling v Tremeer [71] (McLure JA); Bennett v Minister of Community Welfare [1992] HCA 127; (1992) 176 CLR 408, 420 – 421 (Gaudron J).
[36] Bennett v Minister of Community Welfare, 420 – 421.
The issue of which, if any, of the impairments to Mr Sulub's physical or mental condition were caused by the Accident is to be determined under s 3 and s 5A of the CL Act. So too the determination of his claim for damages. Section 5D of the CL Act provides that the plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to causation: s 5D of the CL Act.
Proof of causation under s 5C of the CL Act involves similar considerations to those at common law. The first question to be answered is whether 'the fault was a necessary condition of the occurrence of harm': CL Act s 5C(1)(a). The second question to be answered is whether 'it is appropriate for the scope of the tortfeasor's liability to extend to the harm so caused': s 5C(1)(b).
When considering the first element, the High Court found that a 'necessary condition' is 'a condition that must be present for the occurrence of harm'.[37] The High Court also made it clear that:
(a)the test for factual causation is the 'but for' test;[38] that is 'but for' the negligent act or omissions, would the harm have occurred?; and
(b)that the common law policy considerations are embodied in the CL Act inquiry concerning the scope of liability.[39] This second element is not in issue in the present case because the defendant did not suggest that it would not be appropriate for the scope of its liability to extend to any harm found to have been caused in applying the first element.
[37] Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 [20] (French CJ, Gummow, Crennan & Bell JJ).
[38] Adeels Palace Pty Ltd v Bou Najem [45].
[39] Adeels Palace Pty Ltd v Bou Najem [51] – [52].
Did the breach of duty of care by the defendant cause the injury suffered by the plaintiff?
In considering whether the defendant's breach of duty caused Mr Sulub's injury, consideration needs to be given to the condition of Mr Sulub's spine prior to the Accident and the nature of the injury suffered in the Accident.
What was the condition of Mr Sulub's spine prior to the Accident?
Evidence
The medical evidence was that the CT scan of 28 January 2015 and the MRI scan of 1 May 2015 revealed that Mr Sulub has a congenital abnormality of his back being a naturally occurring fusion at L5/S1. They also established that he had some mild right sided lumbar facet joint degeneration at L3/4 and L4/5 and minor disc bulges at L2/3, L3/4 and L4/5 but no evidence of nerve root compression or significant spinal injury.[40]
[40] Exhibit 17 page 2 – 3.
The bone scan which took place on 24 July 2015 indicated subtle activity at the right L3 pedicle in keeping with a mild stress response. The report of that scan noted:
[N]o other site of abnormal activity identified elsewhere. In particular, no convincing facet joint arthropathy is evident.[41]
[41] Exhibit 17 page 3.
There was no evidence led to indicate that Mr Sulub had ever reported having any back pain prior to the Accident.
Findings as to pre-existing condition of Mr Sulub's spine
I find that the evidence establishes that Mr Sulub suffered from the pre‑existing abnormalities of his spine set out above. I also find that these features of his spine were not symptomatic prior to the Accident and that Mr Sulub had no reported back pain prior to the Accident.
What injury did Mr Sulub sustain as a result of the Accident?
Mr Sulub's evidence
Mr Sulub gave evidence that as soon as his foot slipped off the bottom tyre as he was pulling the top tyre towards himself after about 40 minutes of lifting and stacking tyres, he felt a sharp pain in his lower back and through his right buttock. He gave evidence that he immediately told the forklift driver and his supervisor and he was directed to the staff waiting area where he sat on a couch for about 20 minutes to see if his back would get better. His evidence was that when the pain did not go away he drove to the nearest doctor in Cannington. He completed an incident report form before leaving the defendant's premises.
Medical evidence
Dr Jinadu is a General Practitioner. He saw Mr Sulub on 15 January 2015 at which time he reported that he was experiencing back pain as a result of heavy lifting at work. Dr Jindau initially treated the pain with prescription analgesics. His evidence was that he saw Mr Sulub several times between 15 January 2015 and October 2015 and in that time Mr Sulub also reported experiencing some shoulder and neck pain, which did not last for very long. Dr Jinadu's evidence was that when the back pain persisted, he arranged for Mr Sulub to undergo a CT scan, which took place on 28 January 2015 and subsequently referred him for the MRI scan which was performed on 1 May 2015. He also referred him for review by the neurosurgeon Dr Stephen Lewis.
Dr Lewis' view, as set out in the report of 12 August 2015[42] was that the cause of the pain was consistent with facet joint arthropathy. Dr Lewis had reviewed the MRI scan which identified the facet joint degeneration at the time he formed his view. His medical opinion was that no surgical intervention was necessary, that the pain should settle with the assistance of anti‑inflammatory medication but that if it did not, facet blocks to L3/4 and L5/S1 should be administered by a pain management specialist.
[42] Exhibit 19 (tendered by consent).
With effect from 20 January 2014, the DCR included a rule concerning costs where an offer to compromise has been made by a plaintiff and not accepted by a defendant.
District Court Rules r 42A provides:
(1)The RSC Order 24A applies, subject to subrule (2).
(2)The RSC Order 24A r 10(4) does not apply to a case.
(3)Subrule (4) applies if —
(a)an offer is made by a plaintiff; and
(b)the offer is not accepted by the defendant; and
(c)the plaintiff obtains judgment on the claim to which the offer relates; and
(d)the judgment is no less favourable to the plaintiff than the terms of the offer.
(4)Unless the Court otherwise orders, the plaintiff is entitled to an order against the defendant for —
(a)the plaintiff's costs in respect of the claim from the date on which the offer was made, taxed as between a law practice and its client; and
(b)the plaintiff's costs incurred before that date, taxed on a party and party basis.
If RSC O 24A r 10(5A) applies, the ways in which costs are to be dealt with is conceptually different from the positon which applies if DCR r 42A(4) applies. The difference in approach taken by a court pursuant to each of those provisions was considered by Gething DCJ in Ellis at [21] – [38]. It is not necessary to repeat his Honour's analysis of the difference in these reasons.
The defendant submits that RSC O 24A r 10(5A) does not apply and that costs should be determined pursuant to DCR r 42A(3) and (4).
Conversely, the plaintiff submits that O 24A r 10(5A) applies. It is said that that subrule continues to apply because, unlike (4), DCR r 42A(2) does not specifically exclude it.
In Ellis his Honour considered the question of whether O 24A r 10(5A) applies in proceedings in the District Court. His Honour posited that there were two possible interpretations open. They were:
1.RSC O 24 r 10(5A) is substantively inconsistent with the terms of DCR r 42A(4). Accordingly, (5A) can have no operation because of the effect of DCR r 6(3); and
2.RSC O 24A r 10(5A) provides conditions on when a court may make an order for indemnity costs, but does not apply when the costs order being sought is that costs be taxed on a solicitor and own client basis.
While his Honour did not need to decide the issue in Ellis, he expressed the preliminary view that the correct interpretation was the first of those two possibilities posited by him. His reasons for coming to that view were set out at [21] – [39] of the judgment.
The resolution of the costs applications in this case requires that this same issue be determined.
I agree with the analysis that led his Honour Judge Gething to reach his preliminary conclusion.
Additionally, I find that it does not make sense either linguistically or as a matter of logic to say that both DCR r 42A(4) and RSC 24A r 10(5A) apply and that (5A) gives content to when the court would make an order for party and party costs.
Nor would it make sense that the District Court, in making its own rules in relation to how costs are to be determined, would apply a different regime based only upon whether or not an offer to compromise met the formal requirements of RSC O 24A. There would be no logical basis for that distinction.
Accordingly, I find that DCR r 42A(3) and (4) govern how costs are to be awarded in this matter.
What does 'unless the court orders otherwise' mean in DCR r 42A?
The next question to be determined is therefore, whether there is any reason for the court to make a costs order different from the position set out in DCR r 42A(4).
The court's discretion to order otherwise than in accordance with the position set out in DCR r 42A(4) is unconfined in the sense that it contains no indication of the considerations to which the court should have regard when considering the issue.
Nevertheless, the discretion must be exercised judicially and so as to achieve what is fair and just between the parties in the circumstances of the case.
In Ellis, Gething DCJ set out the principles which have been established by the authorities dealing with the phrase 'unless the court orders otherwise' in the context of RSC O 24A r 10 ([44]). He then went on to find that the context of DCR r 42A was sufficiently similar as to make the principles analogous ([45]) and to explain the purpose of the rule ([46]). I respectfully adopt what his Honour said about those matters.
The principles which were identified by Gething DCJ at [44] warrant restating. They are:
(a)the purpose of the rule is to encourage the proper compromise of litigation, in the private interests of individual litigants and the public interest;
(b)the discretion to replace the rule is a judicial one, requiring that the private and public purposes of the rule be borne in mind;
(c)the prima facie consequence of non‑acceptance will be that the rule will be enforced against the non‑accepting party;
(d)in any ordinary case the rule should be applied in its terms;
(e)the rule should only be departed from for proper reasons which, in general, only arise in an exceptional case;
(f)to the extent that a party seeks an exercise of discretion to vary the ordinary operation of the rule, it is for that party to demonstrate that there are adequate reasons to justify the exercise of the discretion;
(g)the aim is to oblige the offeree to give serious thought to the risk involved in non‑acceptance;
(h)lying behind the rule is the common knowledge that litigation is inescapably chancy;
(i)the offer cannot be viewed in isolation from the circumstances in which it was made;
(j)the mere fact that it was reasonable for the offeree to take the view that it did in rejecting the offer is not enough to displace the rule;
(k)the offeree is put on notice that unless it accepts the offer there is a significant risk that the order provided for by the rule may follow;
(l)in declining to accept the offer, the offeree undertakes the risk and consequences that naturally flow from that risk;
(m)the general factors which apply in most, if not all, cases such as hardship and difficulty predicting the result of the trial cannot support the exercise of the discretion in favour of the party who rejected the offer; and
(n)the ordinary operation of the rule is not to be displaced just because the case is a difficult one.
Is there a reason to order otherwise than as provided in DCR r 42A(4)?
So the issue to be determined in this case then is whether either the plaintiff or the defendant can establish that there are adequate reasons to 'otherwise order' and displace the default positon under DCR r 42A.
In order to reach a view about that issue it is necessary to say something about the basis upon which court determined the plaintiff's claim and to briefly set out the history of the action.
Basis for the judgment in favour of the plaintiff
In the reasons for decision delivered 28 November 2018, I found that the plaintiff had been injured in the course of lifting and stacking tyres on his first morning of work at the defendant's tyre warehouse. While I did not find that the method for lifting and stacking method generally required by the defendant to be used ('the barrel stacking method') was unsafe, I accepted the plaintiff's evidence that he received no instruction or training in that method prior to being tasked with the lifting and stacking of tyres, that he was not supervised by the defendant while he was carrying out the task and did not perform it correctly, causing him to injure his lower back.
I came to that view in significant part because Mr Devis, another labour hire company employee who gave evidence that he worked with Mr Sulub on the day on which he was injured, also gave evidence that he received no training in the barrel stacking method before being tasked with stacking the tyres on that morning but also because there were inconsistencies in the evidence of the defendant's witnesses about what had happened on the morning in question.
Relevant history of proceedings
From the affidavits filed in the costs application and from an examination of the court file it can be ascertained that the relevant history of the proceedings is as follows:
1.On or about 11 October 2016, the plaintiff filed and served his statement of claim
2.On 18 November 2016, the defendant filed and served its defence.
3.On 1 December 2016 the defendant's solicitor wrote to the plaintiff's solicitor and invited the plaintiff to dismiss his action on the basis that his instructions were that:
(a)Mr Sulub had informed the defendant that he was trained in manual handling;
(b)the defendant had given Mr Sulub clear instructions on how to stack the tyres in a safe manner; and
(c)Mr Sulub had been supervised by the defendant at all times.
4.On 5 December 2016 the plaintiff's solicitors referred to the letter of 1 December 2016 and declined to dismiss the action. The reasons for doing so were essentially a reiteration of the basis of liability set out in the statement of claim.
5.A pre-trial conference was held on 5 May 2017. The plaintiff's solicitor attests that his view was that at the time of that conference the plaintiff's credibility was in issue because there was no independent evidence that the plaintiff had been injured at the defendant's premises and because Dr Hardcastle, who had reviewed the plaintiff, was of the view that he had recovered from any strain within six weeks.
6.On 27 June 2017 the plaintiff's solicitors sent the report of Professor Ackland dated 28 June 2018 to the defendant and asked that they reconsider their position on liability.
7.On 27 June 2017 the defendant's solicitors informed the plaintiff's solicitors that the defendant would not reconsider its position on liability because the method of stacking tyres was not as the plaintiff alleged it to have been and because the alleged accident did not occur.
8.By letter dated 30 June 2017, the plaintiff made the Offer. By that letter the plaintiff offered to compromise his claim for the sum of $119,321 (in addition to worker's compensation payments) plus costs and disbursements to be taxed. The offer was expressed to have been made pursuant to RSC O 24A.
9.The Offer was received by the defendant on 4 July 2017.
10.On 7 August 2017 the defendant's solicitor notified the plaintiff's solicitors that the plaintiff was required to be examined by Dr Meyerkort on 16 August 2017.
11.On 31 August 2017 the defendant's solicitors received Dr Meyerkort's report which said that he was unable to clearly identify a physical cause for the defendant's continued condition and that it was his opinion that there were significant psychosocial factors influencing the plaintiff's presentation and that the plaintiff had no medical condition preventing him from returning to full-time work and that he was able to perform any type of work which he was motivated to attend.
12.On 13 September 2017 the defendant made a Calderbank offer to settle the plaintiff's claim for $25,000 plus costs to be taxed if not agreed. That offer was expressed to remain open until the close of business on 25 September 2017. In making the Calderbank offer the defendant:
(i)reiterated that liability was denied because the accident did not occur or, alternatively, if it did, it occurred despite the defendant exercising reasonable care; and
(ii)asserted that if the plaintiff were successful, damages would be limited to out of pocket expenses and a closed period of lost wages which would not exceed the offer of $25,000.
13.The plaintiff did not respond to the defendant's Calderbank offer.
14.The witness list filed by the plaintiff on 18 January 2018 did not list Mr Devis among the plaintiff's witnesses.
15.The trial ran from 29 January 2018 to 2 February 2018.
Application of those facts to the principles
The plaintiff's submissions did not directly address why the order sought by the defendant ought not be made. There was no affidavit material filed by the plaintiff to contradict the defendant's statement that it had no notice of the corroborating evidence to be given by Mr Devis at any time prior to trial. I therefore accept that that was the case.
In circumstances where the plaintiff succeeded in his action and was awarded damages no less favourable than the Offer, I need to be satisfied of the existence of some special reason for departing from the default position as to costs.
For the most part the plaintiff's submissions were directed at addressing why indemnity costs should be awarded from the date on which the Offer was made in the event that I were to find that SCR O 24A r 10(5A) applied and the basis upon which I ought to find that that Order did apply. The plaintiff's alternative submission is that, if the court finds that DCR r 42A applies, then the costs order should reflect the default positon.
The DCR r 35AA provides that at a settlement conference, the parties must, in good faith, attempt to settle the case or, failing that, to resolve as many issues between them as possible and to identify the issues to be tried.
There was no suggestion in the material filed by the defendant that the plaintiff failed to negotiate in the way required by DCR r 35AA. It has not been suggested that the plaintiff knew of the evidence Mr Devis would give but withheld that information from the defendant at the settlement conference.
Nevertheless, given the defendant's appreciation of the evidence at the time it received the Offer, its rejection of the offer cannot have been said to have been unreasonable. I find that it was reasonable for the defendant to consider that it had reasonable prospects of success in relation to liability at that time in light of the information known by it.
The defendant submits that in this case the court should exercise its discretion to make the costs order it seeks because it had no opportunity to make an informed assessment of its chances of doing better than the offer because at no time prior to trial (either by the filing of a reply to the defence filed on 21 November 2016 or by including Mr Devis in the witness list filed on 18 January 2018) did the plaintiff inform the defendant that Mr Devis would give evidence which corroborated the plaintiff's account of the lack of training in the barrel stacking method.
The defendant submits that in circumstances where the plaintiff effectively took the defendant by surprise at trial, the appropriate costs order is that it pay costs only from the date of trial and then on a party and party basis. It submits that, in the alternative, it should pay the plaintiff's costs of the action on a party and party basis.
The absence of any evidence to corroborate the plaintiff's own evidence in the face of the defendant's own witnesses' contrary evidence about what training he had received on the morning he was injured will no doubt have been a significant factor in its decision to reject the Offer. However, so too will have been its assessment of the extent of the plaintiff's injury and therefore the quantum of damages likely to be awarded in the event that liability were to be established. In respect of that issue there was competing expert evidence.
In my view, although it is true that litigation is inherently chancy, the defendant has satisfied me that there are proper reasons to exercise the discretion to depart from the default position as to costs in this case. The fact that the defendant had no prior notice of the fact that Mr Devis would give evidence at all, and in the terms which he did, which was an important reason for reaching the conclusion I did in relation to liability, makes this case out of the ordinary.
I do not however accept that it is appropriate to award the plaintiff only costs on and from the date of trial. Rather, in the circumstances where the plaintiff was successful in respect of both quantum and damages, I find that the appropriate order is the defendant pay the plaintiff's costs of the action to be taxed on a party and party basis if not agreed.
Orders
I intend to make the following order. The defendant pay the plaintiff's cost of the action to be taxed on a party and party basis if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy
10 APRIL 2019
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