Sydney Olympic Sporting Club Limited v KARAMIDAS

[2000] NSWCA 268

CITATION:	SYDNEY OLYMPIC SPORTING CLUB LIMITED v. KARAMIDAS [2000] NSWCA 268
FILE NUMBER(S):	CA 40285/99
HEARING DATE(S):	27/09/2000
JUDGMENT DATE:	27 September 2000
PARTIES :	SYDNEY OLYMPIC SPORTING CLUB LIMITED (Appellant) JIM KARAMIDAS (Respondent)
JUDGMENT OF:	Handley JA at 1, 37; Powell JA at 2; Heydon JA at 42

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5830/97
LOWER COURT JUDICIAL OFFICER :	Balla A-DCJ

COUNSEL:	A.D.M. Hewitt SC/P.R. Stockley (Appellant) M.J. Williams QC/D.R.J. Toomey (Respondent)
SOLICITORS:	Curwood & Partners (Appellant) McCrohon Bergserg (Respondent)
CATCHWORDS:	NEGLIGENCE - Master and servant - Duty of care - Safe system of work - Employer's duty to provide - Scope of duty - Contributory negligence D
DECISION:	Appeal dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL


CA 40285/99
DC 5830/97

HANDLEY JA
POWELL JA
HEYDON JA

27 September 2000

SYDNEY OLYMPIC SPORTING CLUB LIMITED
v. KARADIMAS
JUDGMENT

1    HANDLEY JA: I will ask Powell JA to give the first judgment.

2    POWELL JA: This is an appeal by an unsuccessful Defendant from a verdict found, and judgment entered, by Balla A-DCJ in the District Court on 26 March 1999.

3    In the proceedings at first instance the Plaintiff, who was employed by the Defendant as a barman/cellarman, sought to recover damages for injuries suffered by him on 22 September 1994 when, in the course of his employment, he sought to move a 50 litre beer keg which he thought to be empty, but which was, in fact full.

4    The Plaintiff's case was that he sustained those injuries because of the Defendant's negligence. So far as is relevant, the Statement of Claim contained the following paragraphs (RAB 3):

“5 The said accident was caused by the negligence of the Defendants it's (sic) servants or agents.
Particulars of negligence

(a Permitting the keg to remain on the floor of the cellar without a plastic tag which would indicate that that keg was full of beer. The Defendant knew or ought to have known that without a tag, persons in a situation such as the Plaintiff would have presumed the keg to have been empty and capable of being lifted without risk of injury.

(b) Failing to provide a safe system of work.

(c) Failing to provide a safe place of work.

(d) Failing to warn the Plaintiff that the beer keg in fact was full of fluid and not empty.

6. The Plaintiff was entitled to presume, due to the absence of the plastic tag on the keg, that the beer keg was empty.”

5    In addition to putting in issue the relevant paragraphs and, in particular, paragraphs 5 and 6, of the Statement of Claim, the Defendant alleged in its Defence (RAB 10):

"4. Further, or in the alternative, the Defendant says that if the Plaintiff was injured as alleged (which is denied) then such injury, loss and damage was occasioned by the Plaintiff by reason of his own negligence, particulars whereof are as follows:

(a) Failure to take care for his own safety.
(b) Failure to test the said keg before moving it.
(c) Failure to carry out his duties in a workmanlike manner.”

6    The Plaintiff, who was born in 1959, completed his secondary education at the Enmore Boys' High School where he attained the Higher School Certificate.

7    After completing his secondary education, the Plaintiff commenced to work in what is known as the hospitality industry. In 1978, following his attaining the Higher School Certificate, he commenced work at the Wentworth Hotel, but in what capacity is not revealed by the materials which are before the Court. Later, the Plaintiff commenced work as a waiter in the Summit Restaurant in Australia Square.

8    In 1980, while he was still employed at the Summit Restaurant, the Plaintiff commenced a TAFE course in computer programming. However, as he did not find that activity satisfying, he did not complete the course, leaving shortly before his final examinations.

9    Thereafter, between 1982 and 1985 the Plaintiff conducted a tobacconist's shop, and between 1986 and 1992, with his wife, whom he had married in 1984, conducted a sandwich shop.

10    In 1992 the Plaintiff left his wife to conduct the sandwich shop on her own and took a position with the Cooks River Bowling Club as a barman and cellarman; later the Plaintiff rose to the position of club manager.
11    The work of a cellarman was described by the Plaintiff (CAB 3) as follows:

“Ordering stock, putting stock away, keeping the cool room clear, doing the bar work and cleaning the beer lines.”

12    While he was at the Cooks River Bowling Club and performing the duties of a barman/cellarman, the Plaintiff became acquainted with the various indicia which identified beer produced by the various breweries and the various types of beer delivered - this, so it seems (CAB 3-4), was because each keg had attached to it, over the nozzle, or valve, where the lines from the keg to the taps were to be inserted, a coloured plastic tag, or cap, the tag, or cap, varying so as to identify both the brewery involved and the type of beer - those tags, or caps, were capable of being removed so that, at an appropriate time, the kegs could be joined to the lines.

13    It was the Plaintiff's experience while at the Cooks River Bowling Club, and also while in the employ of the Defendant, that, if any keg was seen not to have a plastic tap, or cap, it could be treated as being empty (CAB 4).

14    That evidence was supported, insofar as it related to the Defendant, by the evidence of Mr Smith, who had previously been a club manager at two other clubs and who had occupied the position of club manager with the Defendant for a period of about ten years. In his evidence (CAB at 26) Mr Smith said (inter alia):

“Q. Once a cap had been removed so far as the practice that your club was concerned, what did that signify? A. Well, if the keg was sitting there with a cap off, it signified it was empty.

Q. You said earlier that you've worked at three other clubs, is that right? A. Two others.

Q. Two others, I'm sorry, it was three including this one? A. Three including, yes.

Q. You've also worked in the liquor industry and other organisations, is that right? A. No, it's always just in those clubs.

Q. So it was just those three clubs including this one? A. Yes.

………


Q. Was it the same with these tags at the other two clubs? A. From the time that these type of style of kegs were brought in, yes.

Q. Was it the same understanding that once a keg had been tapped and the tag removed, that denoted the keg was empty, is that right? A. That's right.”

15    In 1993 the Plaintiff took a position with the Defendant as a barman/cellarman; later he was promoted to the position of assistant manager, but in, circumstances which need not concern us, he was demoted again to the position of barman/cellarman.

16    In his evidence (CAB 4), the Plaintiff said that the duties as barman/cellarman which he performed while employed by the Defendant were similar to those at the Cooks River Bowling Club.

17    It is convenient to note here that there is material which is before the Court (see the report of Mr Buckland, CAB 65-69) to the effect that, at the time of the Plaintiff's accident, there were no trolleys or other mechanical aids available at the Defendant's premises for moving, lifting and moving full beer kegs. The significance of that fact is,first, that, while an empty 50 litre keg weighs approximately 15 kilograms, a full 50 litre keg weighs about 65 kilograms; second, that the National Standard and the National Code of Practice for Manual Handling have, both been adopted in New South Wales Occupational Health and Safety Regulations; and, third, that the Code advises that there is evidence that the risk of back injury increases significantly with objects above the range of 16 to 20 kilograms and that generally no person should be required to lift loads above 55 kilograms. (CAB 67-68.)

18    On the day of the accident, 22 September 1994, the Plaintiff commenced his shift at 7am. His first task, so it seems, was to disconnect the beer lines from the kegs, clean them with detergent and flush them so that the lines could then be reconnected to the kegs - the process while involving the disconnection of the lines from the kegs, did not involve moving the kegs from the position where they then were. It was also a part of the Plaintiff's task at the time to remove any empty kegs from the cool room in which the beer lines and the attendant kegs were located (CAB 39).

19    It would appear that, at about the time when he had completed the activity of cleaning the beer lines and flushing them out - which process, so he indicated (CAB 38-39) would take about two hours - the Plaintiff turned to remove any empty kegs from the cool room to a storage area. When he did so, the Plaintiff saw the keg in question, which keg did not have attached to it any tag, or cap, of the type to which I have earlier referred. It was when he bent over in an attempt to lift it that the Plaintiff sustained the injury in respect of which he sought to recover damages.

20    There is now no issue between the parties as to the injury having been sustained by the Plaintiff, nor is there any issue before the Court as to the nature and extent of that injury and the sequelae of it, or as to the quantum of the damages which Balla A-DCJ found appropriate to be awarded.

21    The case which the Defendant sought to make at trial, and which it has sought to support on the hearing of this appeal, was based, to an extent, on the evidence given by Mr Smith, but primarily upon the evidence given at trial by a Mr Harris, a barman/cellarman at an hotel, Jacksons on George, which is located in George Street, Sydney near Circular Quay.

22    Mr Harris who, so far as the materials which are before the Court indicate, had worked in only one hotel, namely Jacksons on George, and had worked there for a period of about four and a half years prior to trial as a barman/cellarman, gave evidence (black AB 55) that as part of his job, he was responsible for supervising the delivery of beer kegs.

23    Mr Harris's evidence (CAB 56) was, first, that it was a not uncommon experience for the tags or caps, to which I have earlier referred, to be displaced from beer kegs either prior to, or at the time of delivery, and, if displaced, were difficult, or even impossible, to replace a fact which, so the Defendant would have it, ought not to have led the Plaintiff to assume that a keg which did not have a cap, was an empty keg.

24    In addition, Mr. Harris' evidence was also that, when he commenced working at Jacksons on George, he had been instructed that he ought, in order to determine whether a beer keg was empty, to kick it, a practice which, so the Defendant would have it, was common in the industry and one which should have been known to the Plaintiff.

25    It seems to me however, on analysis, that Mr Harris's evidence, while providing some support for the fact that, on occasion, kegs are delivered with a cap off, goes no further than that; as also does it seem to me that, while it may be that kicking a beer keg will indicate whether it is, or is not, empty, that was not the purpose for which Mr Harris, in fact, kicked beer kegs.

26    So far as the first matter is concerned, the following evidence given by Mr. Harris in chief (CAB 56-57):

"Q. Now at the time of delivery of the kegs they're moved from the truck manually are they? A. Yes they are.
Q. Have you ever observed anything so far as those caps are concerned at the time of delivery from the truck: A. In what --
Q. Well I'll start again. The caps are removed at the time that you put the tapping to the keg is that right? A. Yes when you tap the beer you remove the keg, the top.
Q. In your experience are there ever any circumstances where the cap comes off before it's tapped? A. During delivery sometimes the caps can pop off as they're dropped from the trucks.
Q. If you observe that to occur I imagine you put the cap back on do you? A. Yes.
Q. Is it easier to replace one of the two types of caps if they come off? A. Yes the Carlton cap will go back on whereas the Tooheys is a lot harder to put back on."

and, then, in the course of cross-examination (CAB 57):

"Q. Mr. Harris have you actually seen a cop come off a keg during the course of delivery by the brewery truck? A. Many a time.
Q. And you've always put the cap back on have you? A. Yes.
Q. And certainly you say that the Tooheys cap can go back on even if somewhat more difficult to put back on than the Carlton cap is that right? A. Usually the Tooheys cap once the seal is broken it can't go back on with the seal in tact.
Q. But it goes back on doesn't it? A. Yes but it's visibly been torn or you can see that the seal has been broken."

might be noted.

27    So far as the latter matter is concerned, the following evidence given by Mr Harris in the course of his cross-examination might be noted (CAB 58-59):

“Q. When the keg is emptied, what's done then? A. It's removed from the bank in which it's been tapped and taken outside.

Q. You know it is empty, don't you, you don't have to kick it, do you? A. Yes, because you can see that the line coming from the top of the keg is empty.

Q. So you don't kick that keg, do you? A. Well, you move the - you simply grab it and you know it's empty.

Q. You know it's empty, don't you? A. Yes.

Q. You don't kick it beforehand, do you, that's what I'm asking you? A. No, because you can visibly see that when it's on bank, it is empty.

Q. So when do you go around kicking kegs? A. Whenever I'm in the cellar.

………


Q. But you know it's an empty keg, do you, because you've removed it from the line? A. Yes.

Q. So there's no need to kick it, is there? A. Kicking it - as I walk through the cellar I kick each one to determine how much is in and how long until I have to change it.

Q. So in other words what you're telling the Court is you kick kegs to get an idea of when a keg is going to have to be replaced, is that right? A. Yes.”

……..

28    In her judgment, Balla A-DCJ wrote (inter alia) (RAB 15-16)

“The Plaintiff claims that the Defendant was negligent in providing an unsafe system of work. It is common ground that the Defendant was under a legal duty to take reasonable care for the safety of the Plaintiff whilst in the course of his employment. The Defendant is bound to have regard to any risk of injury that may occur by reason of the employee's inadvertence, inattention or misjudgment in performing his work (see McLean v Tedman 155 CLR 306 at p 312).

In this case the Defendant should have been aware that the Plaintiff's duties included the handling of extremely heavy items which of itself could give rise to a risk of injury. Many of the relevant factors have not been disputed by the Defendant either by the calling of evidence or in submissions. These include the evidence of Mr Buckland as to the weight of the full keg, the fact that the weight of the full keg exceeds the relevant statutory guidelines, that the lifting of a heavy weight can cause a low back injury and that the manner in which the Plaintiff performed the lift was unsafe.

Counsel for the Defendant did submit, however, that the Plaintiff had failed to show that a safe alternative system of work was reasonably available. Counsel for the Plaintiff suggested that as a matter of commonsense, the Defendant should have implemented a system of work in which employees were required to remove empty kegs as soon as possible, or alternatively, as suggested by Mr Buckland, by ensuring that all caps remained on while kegs were full.

………

In these proceedings I find that the magnitude of the risk was obvious and significant, there was a sufficient degree of the probability of its occurrence and that the alleviating action suggested by counsel for the Plaintiff would not have resulted in any significant expense, difficulty or inconvenience.

I accordingly find that the Defendant breached its duty of care to the Plaintiff.

Contributory negligence

Counsel for the Defendant submitted that there should be a significant discount for contributory negligence based on the Plaintiff's failure to kick or tap the keg before trying to lift it.

The authorities establish that the worker will not be guilty of contributory negligence if his behaviour is mere inattention or inadvertence. Some of the relevant factors will be inattention, bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand and other prevailing conditions at work (see McLean v Tedman 155 CLR 306 at p 315). Further the Plaintiff is entitled to assume that the Defendant had fulfilled its obligation to provide a safe system of work ( Polycarpou v Australian Wire Industries [1996] 36 NSWLR 49 at page 65).

The evidence establishes the Plaintiff was performing a task which he regularly performed and I infer from his evidence that he was preoccupied with the matter in hand. I find that the failure of the Plaintiff to test the keg in some way before lifting it was a failure attributable to mere inadvertence and has not been shown to amount to contributory negligence.”

29    Her Honour then went on to assess the relevant amounts to be allowed by way of damages and found a verdict for the Plaintiff in the sum of $827,551.41.

30    In the Amended Notice of Appeal which was filed on its behalf by leave granted on the hearing of the appeal, the Defendant relied on the following grounds.

“1 That her Honour ought not to have found that the Appellant's knowledge of the occasional presence of full kegs of beer in the Appellant's cellar which did not have tags to suggest they were full, created a risk of injury to a person in the Appellant's employ which was foreseeable.

2 Alternatively, that if her Honour was entitled so to find, that her Honour should not have found that the risk of injury was such that the Appellant should have taken alleviating action.
3. That in any event, of the alleviating actions her Honour found should have been taken:

(a) The first, leaving caps in place was not available to the Appellant in that the evidence showed caps frequently came loose during delivery, and
(b) The second, that the kegs could be removed from the area of work when empty was not the subject of any evidence in the case and was not put to the witness.


4 Alternatively to the foregoing, her Honour should have found that it was reasonable for the Appellant to assume that the Respondent knew that kegs of beer not carrying a tag, might nevertheless be full kegs of beer.

5. Alternatively, in the circumstances her Honour should have found the Respondent guilty of contributory negligence in failing to test the keg or attempt to ascertain its weight before lifting it.”

31    When the appeal was called on for hearing, Mr ADM Hewitt SC appeared with Mr PR Stockley for the Defendant, and Mr MJ Williams QC appeared with Mr DRJ Toomey for the Plaintiff.

32    In the Written Submissions which were filed on its behalf, the Defendant sought to assert that there were several ways in which a keg could be left in the cool room without a tag, or cap, and that the failure, if it were a failure, of the Defendant to appreciate that that was so, and to take action in an attempt to avoid it, did not constitute a defective system.

33    It seems to me, with great respect to Mr Hewitt, who has said everything that could be said on behalf of the Defendant, that the evidence demonstrates quite clearly, first, that while, on occasion, a tag, or cap, might be dislodged from a keg in the course of transport, or at the time of delivery, in the case of the Plaintiff, a keg which was delivered without a tag, or cap, on it would be rejected, and that if, in the course of delivery, a tag were displaced it, would, in the case of the Plaintiff, have been replaced. The Plaintiff's evidence was supported by the evidence of Mr Harris to which I have earlier (para. 25) referred, which indicated that, if tags were displaced, they could be replaced, and the evidence of Mr. Smith (para. 14) that, in the Defendant's Club, a keg which did not have a tag attached to it was capable of being, and was, in practice, treated as being, empty.

34    So far as the other suggestion which was made, namely, that an employee in the course of tapping a keg might have removed the tag, or cap, but had not completed the task in hand, that, in my view, would, in the circumstances, have been a casual act of negligence on the part of the Defendant's employee, for which casual act of negligence the Defendant would, in any event, have been liable.

35    The key to the present appeal, as it seems to me, is to be founded in the assumptions which, it is clear, within the Defendant's Club were made, were part of the system and were known to the people within the Club responsible for its administration. So far as the practice - which, was not shown to be an industry practice - of kicking kegs was concerned, the evidence (CAB 34) clearly demonstrates that no instruction was given by Mr Smith to any of the workers within the Defendant's Club that kegs were to be kicked in order to test whether they were empty, and that that was not done until after the accident, when Mr Smith himself took over the task of training barmen and cellar staff.

36    In my view, the verdict which her Honour found, and the judgment which she directed be entered, was correct and I propose that the appeal be dismissed with costs.

37    HANDLEY JA: I agree. I would only add some short additional remarks.

38    I was troubled at one stage by evidence that Mr Harris gave in cross-examination at p 57 but, on further reflection, I see that it does not detract from the Plaintiff's case. Mr Harris did not start work in the liquor industry until November 1994, some two months after the Plaintiff sustained his injury. His entire experience in the liquor industry was at one hotel, Jackson's on George, where he was employed at the time he gave his evidence. The following evidence was given at page 57 in the cross-examination:

"Q. Were you given any training at all? A. Yes I was given training by the previous cellarman and the managers on duty.

Q. Were you ever instructed to check whether a keg was empty by kicking it or did you just work that out yourself or not? A. No, that's how I was showed a simple--

Q. You were shown that? A. A simple method of determining whether a keg is full or empty.

Q. Have you ever picked up a keg without doing that? A. No.

Q. Have you ever seen other cellarmen do that? A. No.

Q. What you in turn have trained other cellarmen, have you? A. Yes.”

39    It is apparent from this evidence that Mr Harris was instructed to kick a keg in order to determine whether it was full or empty. That the method was part of the system of work at Jackson's on George. That explains why he has never seen other cellarmen pick up a keg without kicking it. At the time he was giving evidence, he had three cellarmen under him and had trained other cellarmen in the same procedure.

40    Accordingly the evidence in question does not detract from the Plaintiff's case.

41    I agree with the orders proposed by my brother Powell.

42    HEYDON JA: I agree with Powell JA and also with the additional remarks of Handley JA.

43    HANDLEY JA: The order of the Court is appeal dismissed with costs.

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