The Canberra Labor Club v Thomson, G.S

[1990] FCA 129

JUDGMENT No. . ... /a?, 90 ........ S ( I . . ,

CATCHWORDS

NEGLIGENCE - Back injury while lifting container of coins into hopper of bagging machine - Finding that employer had failed to provide reasonably safe system of work - Appeal - Question whether finding open on the evidence before trial Judge - No question of principle involved.

THE CANBERRA LABOR CLUB v. GARIN STUART THOMSON

No. ACT G 63 of 1989

Neaves, Foster and Lee JJ.
9 April 1990

Canberra

7      RECEIVED \\

IN THE FED=	COURT OF AUSTRALIA	)
)

AUSTRALIAN CAPITAL TERRITORY	1
) No. ACT G 63 of 1989
DISTRICT REGISTRY	) )
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  THE CANBERRA LABOR CLUB

Appellant

AND: GARIN STUART THOMSON

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER	: Neaves, Foster and Lee JJ.
DATE OF ORDER	: 9 April 1990
WHERE MADE	: Canberra
THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.     The appellant pay the respondent's costs of the appeal.

Note:  Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1 1
AUSTRALIAN CAPITAL TERRITORY	1
1 No. ACT G 63 of 1989
DISTRICT REGISTRY	1
1

GENERAL DIVISION 1

ON APPEAL FROM THE SUPREME COURT OF

THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  THE CANBERRA LABOR CLUB

Appellant

AND: GARIN STUART THOMSON

Respondent

CORAM: Neaves, Foster and Lee JJ.

m: 9 April 1990

REASONS FOR JUDGMENT

THE COURT:

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This appeal is brought from the judgment of Kelly J. given in the Supreme Court of the Australian Capital Territory	.I , .
on 25 August 1989. His Honour found that the appellant, as employer, had been negligent on two separate occasions in
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failing to provide to the respondent, as its employee, a
reasonably safe system of work. The failure had, on each	occasion, resulted in the respondent receiving significant
injury to his back.	L , .
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The appellant by its notice of appeal contested his Honour's finding in respect of each accident. The first
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accident occurred on 20 July 1983, the second on 16 May	1984.

The appellant no longer seeks to appeal against the decision in	. .
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respect of the first accident. It contests, however, the finding of negligence in respect of the second accident, seeking in the event of its being successful that the Court either assess damages itself in respect of the first accident or return the case to the Supreme Court for assessment. In the event of the appeal being unsuccessful, no challenge is made to the amount of damages awarded by Kelly J. in respect of the two accidents.

The respondent was born on 13 February 1957. He left school at age 16. He followed a number of occupations thereafter all of which required a fair level of bodily fitness. In February 1982 he took employment with the appellant as a casual barman and about eight months later became a permanent supervisor, a job which carried with it a number of duties in the Club. One of these was the clearance of monies from the many poker machines with which the Club was equipped. His role, in this regard, was not merely supervisory. He was required to perform various physical operations which are set out in detail in his Honour's judgment.

In the first place he was required to remove the cash box from the base of each poker machine and place it on a trolley which was then used to transport it and other similar boxes to the next stage in the process of dealing with the coinage. The boxes were heavy and the process of removal physically difficult. It was whilst he was removing a cash box on 20 July 1983 that he suffered an injury to his back at what appears to have been the L5/S1 level. It appears that this accident resulted in the respondent being placed on light duties for four weeks with some treatment by a physiotherapist. In the last week he drove a delivery truck for a friend while wearing a spinal brace. He thereafter returned to full duties with the appellant, including the physical work in dealing with the poker machine coins.

It was whilst attending to an operation later in the process that he suffered his second accident. He has indicated that this occurred on 16 May 1984. The operation is referred to as the bagging of the coins. His Honour described it as

follows : -

"The bagging hopper had a divider down the centre which separated 10 cent coins and 20 cent coins. An ordinary domestic plastic bucket without a handle was placed under a chute on one side of the hopper. The chute was lifted up and the coins flowed into the bucket. The plaintiff said, and I accept, that when he was bagging coins, time constraints meant that there were approximately $500 worth of coins in each bucketload, or about 62 1/2 lbs (28.4 kgs), the bucket being about half filled on each occasion. The coins in the bucket was then tipped into a

bucket containing the coins to approximately bagging machine. It was necessary to lift the	chin height. The plaintiff was approximately
182 cms (5'11 1/2") tall."

There was clearly evidence to support this finding and we do not understand it to have been contested.

At the trial, reliance was apparently placed by the
present appellant on disparities between versions said to have

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been given by the respondent to various doctors and in a claim form as to the actual features of his accident during the course of this process. Similar submissions were made, but faintly, before this Court. Such disparities are, of course, not uncommon in this area of litigation. Kelly J. was clearly entitled to accept, as he did, the respondent's version given in the witness box which was assisted by a demonstration of the relevant movements. This resulted in his Honour finding as

follows : -

"On 16 May 1984 the plaintiff was engaged in bagging up coins. As I have already indicated, to do this it was necessary to lift the bucket containing the coins approximately to chest level, chin height. It involved lifting the bucket forward and away from the plaintiff's body, an uncomfortable and awkward lift, involving as well as leaning forward a degree of twisting. While he was doing this the plaintiff experienced low back pain which he described as 'like someone sticking a knife into you."'

Investigation by CT scan on 15 June 1984, after the
second accident, showed "a large central bulge at L5/S1 level

pushing into the theca", a condition which led to surgical

appellant's senior counsel summarised the basis of the appeal	intervention. At the conclusion of the argument before us, the
as being -

(a)	that the evidence did not establish a failure to provide a safe system of work; and
(b)	that the judgment contained no findings that the appellant had failed appropriately to train the respondent or that it had allowed the respondent to carry out the work with the knowledge that he had a bad back.

The respondent's case on liability depended on the evidence of two expert witnesses, Mr Osman, a consulting engineer, and Mrs Tapsell, an occupational therapist. Both were accepted by Kelly J. as being thoroughly qualified to give evidence, Mr Osman as to safety practices in the industry and Mrs Tapsell as to matters in the field of industrial health and safety. Their evidence was accepted by his Honour as against evidence called by the appellant. It was submitted, however, that their evidence was not sufficient, in the circumstances, to establish failure on the part of the appellant to provide a reasonably safe system of work.

Mr Osman gave evidence that although no limits were prescribed by Australian law as to the weights to be lifted by adult males in industry, it was generally accepted that a safe weight was within the range of 70 - 110 lbs (32 - 50 kgs) according to the circumstances of the lift and in ideal

conditions. He also testified that booklets and pamphlets

concerning safe lifting procedures were readily available to

employers from the Department of Industrial Relations. Those publications illustrated the safe and unsafe procedures of which Mr Osman gave general oral testimony. Although Mr Osman could give no evidence on physiological matters, he gave clear evidence as to mechanical bending strains applied to the spine when lifts of over 50 lbs were undertaken at chin level and in front of the body, with the body bent forward. His evidence was, in essence, that these had dangerous qualities that lifts of the same weight undertaken closer to the body and at lower heights did not have. Indeed, such evidence might well fall within the area of commonsense and general knowledge, not requiring assistance from an expert.

The appellant's major criticism of Mr Osman's evidence was that it was merely general in character and did not sufficiently address the facts of the case, thereby failing to support the respondent's claim that the precise system of work involved in the lifting and pouring of coins into the bagging machine was unsafe. An examination of the evidence, however, in our view renders this criticism unsustainable.

Mr Osman was asked in chief the following questions and he gave the following answers relating to that aspect of the respondent's work:

"Q. There is a chute in the front of the big hopper and with a domestic bucket - a

get into a confined position which he	on it unfortunately, he is required to couple of gallon bucket with no handle
finds awkward, again this person is 6 feet tall, place the bucket so that one edge is on the floor but it is at an angle into the chute, he may even hold it at the back but he is holding it at the top to balance it presumably part of it on the floor, operates the chute so that about $500 worth of coins comes in. You may take it he uses something like $500?

A. Yes.

Q. Which is ---?

About 70 pounds.

On your thing. Let us assume for the

moment that it is even lighter, like 60
pounds or even 50 pounds?

Yes.

He puts those in the bucket with no handle, turns off the chute, lifts, in this very confined position, the bucket up, carries it in front of him out of that room through another room and into a third room, then lifts it to chin height to pour it into a machine which counts it and weighs it. Would you then assume that in the course of doing that he has described it as a heavy lift because of moving his arms forward, he has got to tip it over the lid an awkward twisting action which he finds uncomfortable. And again there are about 50 lifts in this because he does up to $30,000 at $500 a time. Have I

got that right? It might be 25,000

minimum at 500 would be 50 lifts - I am getting closer, and it might be even more if he does---?

Yes.

A few, say, 40 pounds or so. Would you tell us whether you regard that as a safe system of work?

Well, it is only one method of doing it and there are two large danger points in that sequence of operations which you have put to me. The first is in the filling of the bucket. Supported or

partly supported on the floor, part of the weight of the contents which is

being decantered into the bucket - if not all of it, is supported on the floor until such time as the person lifts the bucket loaded with the coins. That then brings the weight of the two gallons of coins is then to be supported in some way by two hands of the person doing the lifting but there is no handle, so ---

Could I stop you there? It is not two gallons of coins.' $500 worth is only about - the estimate that this person makes of about half the bucket?

Well, it is in a two gallon bucket.

Yes?

And he would have at least one hand preferably two under the bucket to support the load. At some stage he has to do a weight transfer where he can only have one hand on the floor supporting the bucket while he attempts to get a grip with the other hand. And that is the first danger point. The second danger point in that sequence of operations is where he goes to tip this bucket with the contents into the other machine, and whilst ever that bucket is close to his body with the load of coins in, he is in the best lifting position. As soon as that bucket moves away from his body up to the point where he has emptied all the contents into the final container then it is a question of the weight of the contents and the bucket multiplied by the lever arm which is the distance away from his centre line of action in his body which is the amount to be multiplied by the weight.

Do you - what do you say as to the effect on the person trying to lift and carry that bucket with no handles on it?

Well, once he has got a grip on that bucket by two hands underneath it, he is actually sharing the load between his two hands, his two arms and providing the load is reasonably disposed in the bucket, that is probably a reasonable situation. And that may even be better than carrying the same load in the same bucket with a handle and one hand.

bucket to chin level?

And when he then tries to lift the

Yes.

And over, what about that?

He is up to about 5 feet and he has got to move out from the centre line of action of where the forces should operate and so the further he has to reach out the greater will be the bending moment produced."

This evidence clearly relates to the respondent's description of the work being performed on 16 May 1984. Moreover, it would clearly have been perceived as so relating, in the atmosphere of the Court room, by counsel, the witness and the learned trial Judge. It was no doubt accompanied by gestures and bodily movements in illustration of the evidence, flowing naturally in the course of questioning and responding. It cannot be sufficiently emphasised that a bare transcript cannot hope to convey all the nuances of meaning which are to be gained from the actual presentation of evidence in the court room situation and that, in any evaluation of the recorded evidence at a later time, this fact must be borne steadily in mind.

Mr Osman's evidence certainly contained a number of statements which could be described as "generalities". However, the above evidence, in our view, is quite precise and provides ample warrant for his Honour's finding that the system was unsafe.

Mr Osman also gave evidence as to effect of knowledge

on the part of an employer of the employee's prior back

problem.

It followed upon the evidence just quoted. It was as

follows : 

"Q. Now, in your very wide experience in advlsing employers are you able to say whether there is a clear consciousness in industry that people who have suffered or made complaints of back injury ought not to be carrying out work of that nature that I have just described?

A. Yes, that is correct.

0. And does that so so far as to sav that

they ought nof. to be put to iifting
work?

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Q. Yes."

This latter question and answer was objected to. It was not struck out but further evidence was given in elucidation as follows :

"Q. Mr Osman, much of your work has been in

the advising of industry as to safe
practices of lifting, is that right?

A. Yes.

Q. And in the course of that, have you been called upon to advise as to whether people should be put to particular kinds of lifting?

A. Yes.

Q. And in the course of the same work have you been put to advising people whether employees who have known weaknesses should be put to particular kinds of work?

A. Yes.

Q.	And does that include back injuries and
lifting work?

A. Yes.

Q. And is it well known in industry that it is dangerous to put people to do work involving lifting weights if they have prior history of back injury?

A. Yes.

Q.	And is that especially so with repetitious lifting?
A. More so.	"

We do not understand this evidence to qualify the evidence already given as to the unsafe nature of the respondent's work, in the sense that without these additional features of knowledge, the system would not have been unsafe. As indicated, however, the appellant criticises the judgment under appeal for the absence from it of any finding of prior knowledge on the part of the appellant of the respondent's back problems. We consider that this criticism fails. There was ample evidence of knowledge in Mr Cummings, the appellant's assistant manager, of the respondent's accident on 20 July 1983 and his subsequent period on light duties. Although he returned to full duties he complained about the heavy nature of the lifts in circumstances which clearly indicated that his back was giving trouble. He was told, in effect, that if he wanted his job he would have to do the work which was, in fact, from the evidence, becoming increasingly arduous because of the increased use of the poker machines as a result of some promotion by the Club. His Honour refers to this evidence and obviously accepts it. In our view, it is clearly implicit in his judgment that he found prior knowledge on the part of the

appellant. This point must fail.

Whilst it is true that there are references in the expert evidence to the appropriate training of personnel in safe lifting techniques and there is an absence of any finding by his Honour that the respondent received no such training, we do not think that this matter was germane to the respondent's case. In any event it was open to infer that no such training

I	had been given. No mention was made of it by the respondent and no assertion was made by the appellant that it had given such training to the respondent as an appropriate safety measure.
We do not find it necessary to refer in detail to the evidence of Mrs Tapsell. We are satisfied that the appellant's contentions in relation to this evidence also fail. It is true that she gave much evidence of a general kind and that in some respects her evidence roamed over and applied to the whole of the working procedures relating to the clearing, weighing and bagging of the poker machine coinage. She spoke of desirable training and risks involved when personnel were not trained in proper lifting procedures. Significantly, she stated that Mr Cummings had told her that the height of the coin counting machine had recently been lowered so that the bucket of coins did not have to be held so high in order that its contents could be tipped. We consider that her evidence provided general support for the respondent's allegations of unsafe system, the details of which had been spelt out in Mr Osman's
evidence.
Insofar as it appears to have been faintly put that the respondent had failed to establish any viable alternative system, we should state that we are satisfied that the evidence of Mr Osman and Mrs Tapsell clearly established that quite simple procedures could have been adopted to reduce significantly the risk of back injury. The weight of the coins in the buckets could have been reduced or an additional person could have been supplied to assist the lift. The machine height could have been lowered, as indeed it subsequently was. More time could have been allotted to the task so that the build up of strain from the haste of the job would have been reduced. And so forth. His Honour could clearly have regarded these procedures as available in the circumstances.
Accordingly, we are of the view that the appeal must fail. It is dismissed with costs.

I certify that this and

the preceding 12 pages are a true copy of the Reasons for Judgment herein of the Court.

Associate J G& &--H

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Dated: 9 April 1990

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Counsel for the appellant : Mr J.M.N. Rolfe, Q.C. L ?

with Mr D.G.T. Nock i '

Solicitors for the appellant : Macphillamy Cummins 1 >

& Gibson !

Counsel for the respondent : Mr P.L. Sheils, Q.C. !

with Mr A.S. Gillespie-Jones 1 .

Solicitor for the respondent	: Gillespie-Jones & Co.	i
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Date of hearing	: 4 April 1990	C -
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Date of judgment	: 9 April 1990