Transfield Services (Australia) Pty Ltd v Wieland
[2014] WASCA 41
•21 FEBRUARY 2014
TRANSFIELD SERVICES (AUSTRALIA) PTY LTD -v- WIELAND [2014] WASCA 41
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 41 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:138/2012 | 12 DECEMBER 2013 | |
| Coram: | MARTIN CJ PULLIN JA NEWNES JA | 21/02/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | TRANSFIELD SERVICES (AUSTRALIA) PTY LTD ANTON WIELAND |
Catchwords: | Appeal Negligence Workplace injury Duty of care Whether trial judge misdirected herself as to duty of an employer with respect to an employee Whether trial judge erred by failing to consider what reasonable response was required by the appellant in relation to a foreseeable risk Whether trial judge erred in finding that the employer was negligent in not regularly inspecting steps in the workplace physically as well as visually Cross-appeal Negligence Damages Quantum of damages Future economic loss Discount for contingencies Whether discount of 50% for vicissitudes of life manifestly excessive Whether trial judge erred in applying a discount for identifiable future services and future medical and other expenses |
Legislation: | Nil |
Case References: | Lawson v Flavel [2001] WASCA 272 MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 Wieland v Commonwealth of Australia (Department of Defence) [2012] WADC 156 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRANSFIELD SERVICES (AUSTRALIA) PTY LTD -v- WIELAND [2014] WASCA 41 CORAM : MARTIN CJ
- PULLIN JA
NEWNES JA
- Appellant
AND
ANTON WIELAND
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BRADDOCK DCJ
Citation : WIELAND -v- COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) [2012] WADC 156
File No : CIV 3506 of 2010
Catchwords:
Appeal - Negligence - Workplace injury - Duty of care - Whether trial judge misdirected herself as to duty of an employer with respect to an employee - Whether trial judge erred by failing to consider what reasonable response was required by the appellant in relation to a foreseeable risk - Whether trial judge erred in finding that the employer was negligent in not regularly inspecting steps in the workplace physically as well as visually
Cross-appeal - Negligence - Damages - Quantum of damages - Future economic loss - Discount for contingencies - Whether discount of 50% for vicissitudes of life manifestly excessive - Whether trial judge erred in applying a discount for identifiable future services and future medical and other expenses
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr D R Clyne
Respondent : Mr T Lampropoulos SC
Solicitors:
Appellant : WHL Legal Pty Ltd
Respondent : Vertannes Georgiou
Case(s) referred to in judgment(s):
Lawson v Flavel [2001] WASCA 272
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Wieland v Commonwealth of Australia (Department of Defence) [2012] WADC 156
1 MARTIN CJ: This appeal should be allowed for the reasons given by Pullin JA, with which I agree. The decision of the trial judge should be set aside and instead judgment entered dismissing the respondent's claim against the appellant. Submissions should be invited from the parties with respect to the costs of the appeal and of the trial.
2 PULLIN JA: On 14 December 2008, the respondent fell down four steps at work. He later said:
I lost my footing on the first step. I did not experience any tripping sensation. I felt my foot slipping on the edge of the top of the step.
3 He said that he believed that he had put his left foot on the top step strip, and the sensation did not feel like a slip:
it was more of a give way and it was an unusual sensation.
- See Wieland v Commonwealth of Australia (Department of Defence) [2012] WADC 156 [55] - [56].
4 The respondent was injured when he fell. He sued his employer, the appellant. He also sued the Commonwealth of Australia (Department of Defence) (Commonwealth) as an alleged occupier of the workplace where the accident occurred. The trial judge dismissed the claim against the Commonwealth and ordered that the appellant pay the respondent damages. The appellant appeals the latter.
Facts and evidence not in dispute
5 The appellant worked as a senior chef in a kitchen at the naval base, HMAS Stirling, Garden Island. On the day of the accident, he commenced his duties at 6.15 am in the galley, and at around 9.15 am he went from the galley, up the corridor to use the toilet. On the way to those facilities, there were four steps going up from the galley. On the way back, he lost his footing on the top step and fell down all four steps. A fellow employee, Ms Anne Gooch, found the appellant at the foot of the steps when she arrived at work. She observed that the rubber strip on the top step had come away and was 'bowed' (trial ts 320).
6 Later in the morning, a Mr Virga, whose duties included workplace inspections (ts 249), examined the steps. He found that the rubber strip attached to the top step was coming away. He said it was hard to see at first. He had to move the rubber strip with his hands (ts 252). He took some photographs the following week in company with a health and safety officer (ts 253). Mr Virga said that when he looked at the rubber strip, he could not tell if it was loose. To determine that it was loose, he had to physically lift it up (ts 265).
7 Part of Mr Virga's job was to fill out inspection reports, which included a checklist that required him to indicate whether there was safe access to the kitchen area. The inspections were intended to be carried out at least on a monthly basis (ts 403). In relation to the inspection of the steps, Mr Virga said that he did not do a 'thorough check out' (ts 266). He said that it would have 'taken a few days' to do the inspection if he had to go and 'lift up everything and make sure everything [was stuck] down, glued down'. He testified that he or his delegate would have done weekly inspections in the months of September, October, November and December of 2008 (ts 257 - 258). He never noticed any problem with the strips on the steps, and he used the stairs himself at the time (ts 260). Although the trial judge commented that she 'found Mr Virga to be somewhat unsatisfactory in his presentation as a witness'; that he gave the impression of a man who was 'generally hurried'; and that she found his response to the implied suggestion that he should have inspected the steps to be 'almost flippant' [69], her Honour did not reject Mr Virga's evidence. His evidence was uncontradicted.
8 An officer more senior to Mr Virga was called. This was Mr Ellery, who was the catering/hospitality manager for the appellant. Mr Ellery inspected the steps the day after the accident (ts 404). He said that when he inspected the steps 'you could not see that there was anything wrong with [them]' (ts 404). He said, as to the 'front ridge tread' that went along the front of the step, that 'you could not tell that there was anything wrong with that until you physically stood … right on the edge, and then it tilted' (ts 404 - 405). He said that if a person stood on the step 'normally', then 'you wouldn't have known there was anything wrong with them' even though he knew that an accident had taken place there and even though they were 'actually looking' for it (ts 405). He was asked what happened when he took his foot off the tread and he said 'it went back into place'. He was asked whether he noted anything in particular about the adhesive, and he said 'No. To be totally honest, we never looked at the adhesive. All we did was went there, looked at the step, tried to see how it worked and … you could tell that the adhesive had come away' (ts 405).
9 The stairway was one which the respondent used about six to eight times a day during an ordinary 12 hour shift and had been up and down 'hundreds' of times before the accident. He had never seen anything wrong with them (ts 292). The respondent said that he was safety conscious and would have reported anything that was wrong with the steps (ts 292 - 293). About four to five people used the stairs every week (ts 266). There were numerous stairs throughout the building (ts 418).
Important findings of fact
10 The trial judge found:
(a) that the respondent fell because he lost his footing on the top step [93]. The rubber strip moved under the respondent's foot and contributed to his fall [94]. The movement of the strip was 'small' [94]. The strip moved 'slightly' [108]. The glue affixing the rubber strip to the top step must have failed to hold it securely in place [108];
(b) There was no evidence of any visible defect before the accident from any person who used the corridor, and there was no defect visible to a casual observer before the accident [108];
(c) nobody who ordinarily used the corridor reported having any issue with the steps or seeing anything amiss [96], and there was nothing out of the ordinary to be seen prior to the time he fell [95];
(d) any defect in the strip was not visible to a person ordinarily using the corridor prior to the respondent falling [96];
(e) there was no evidence at all as to the nature or age of the glue holding down the rubber strip, the age or construction of the steps, or the installation of the rubber strip [104]; and
(f) there was no evidence of any problem with the edging to the other steps in that location [104].
Expert evidence
11 The appellant called a chartered professional engineer and certified professional ergonomist, Dr Stephen Chew. Dr Chew was asked to examine the stairs and he looked at all aspects of the stairs to determine whether they departed from Australian standards or building codes. He found that they complied in every respect. The handrail was appropriately placed and the lighting in the area was adequate. Dr Chew reported that the Building Code of Australia required the stairs to have a non-slip finish or an adequate non-skid strip near the edge of the nosing. He said the rubber strip on the steps complied with the requirements of the relevant Building Code of Australia. He said that fixing the rubber strips to the stair tread with glue was 'acceptable' (GAB 85) provided the glue was suitable for the purpose, and that the surfaces had been properly prepared. He was unable to comment as to whether the glue was suitable, or whether the surfaces had been prepared properly, because he did not have information about them (GAB 86). He concluded that, provided the rubber strip was firmly affixed to the stair tread surface, the strip would not constitute a slip hazard. Dr Chew also said, however, that if the rubber strip could move due to poor glue adhesion or deterioration of the rubber, it would constitute a slip hazard (GAB 86).
12 Dr Chew said:
If … the glue … has come apart and the strip, for example, start[ed] to move on the glue, that … will not happen suddenly, it's a slow process. And if there is [a] sign that the glue has - that the rubber has moved because … the glue has given way, the initial detection should be able to see that, because if the rubber has moved away from the glue surface a little bit, the remnant glue surface will pick up dirt and the like and show sign[s] of that (ts 11).
13 Dr Chew never saw the actual rubber strip or the glue used at the time of the accident (ts 18). He said that he had assessed slip resistance of pedestrian surfaces, but as to the application of glue, he said 'I'm not a … chemical engineer or a chemist to give you information on … those issues' (ts 21). He said, however, 'in term[s] of application of glue and use of glue, I have gained sufficient knowledge to know that you've got to select the correct type of glue for the surfaces you're trying to glue together, and obviously [you have] to prepare the surface to sufficient quality of cleanliness for the glue to be effective' (ts 21).
14 No evidence was given that the wrong glue was used. Nor was any evidence given that the surfaces were not prepared properly before the glue was applied.
The trial judge's reasons for finding the appellant liable
15 Her Honour said that:
(a) steps or stairs pose inherent risks of falling [110] and it was foreseeable that if the glue on the strip failed or came loose it would cause a hazard [112]. Her Honour added:
Commonsense and experience as well as [Dr] Chew's opinion, would suggest that if glue was failing to hold the strip on the edge of a step, in most cases, it would be likely to be capable of being observed, if an inspection were made, before the strip became loose or moved far from its position [112]. (emphasis added)
(b) it was not 'adequate' for the appellant to rely upon casual observation alone to ensure safety in relation to the steps [115], 'a casual visual inspection could not be relied upon to have detected … latent defects. Attention could have been directed quite easily, in the checklist, towards the safety issues arising from steps in the workplace' [117];
(c) it would 'not be unreasonable for an employer to require that the steps be regularly inspected, physically as well as visually' [117]; and
(d) 'even a visual inspection, in a health and safety context, would be something more than a casual observation by a user of the corridor' [117];
(e) in summary I find that:
1. The step was not inspected. These steps slipped through the OS&H system.
2. Glue tends to fail progressively. It was unlikely that the glue affixing the strip to the step would fail without some warning, if a proper inspection had been conducted.
3. It was negligent not to inspect the step(s) for potential hazards whether as part of the routine health and safety inspections or otherwise.
In these circumstances, I find that [the appellant] breached its duty of care to [the respondent] by failing to ensure that he was not exposed to risk of injury from the steps in the corridor at his workplace. Despite a culture of safety in the workplace, and systems of inspection, these steps leading from the kitchen to the toilets escaped attention. [The appellant] failed to carry out any inspection of the steps to determine whether they were safe to use [118] - [119].
(f) in relation to the issue of causation:
[P]roper inspection of the corridor steps in the weeks and months prior to the accident would more likely than not have revealed any defect and there was no such inspection. In this workplace, had the defect [been] detected, it is reasonable to conclude that action would have been taken to eliminate the hazard as soon as it was found. Had this occurred, the accident would have been avoided [123].
Grounds of appeal
17 There are three grounds of appeal. In summary, they are:
(a) that the trial judge erred in concluding that the appellant breached its duty of care by failing 'to ensure' that the respondent was not exposed to risk of injury from the steps in the corridor at his workplace. The appellant contends that this reveals error because the only duty on the appellant was to exercise reasonable care that the respondent was not exposed to a risk of injury;
(b) that the trial judge erred when considering the question of breach of duty by failing to consider what reasonable response was required by the appellant in relation to the foreseeable risk; and
(c) that the trial judge erred in finding that the appellant was negligent in not regularly inspecting the steps 'physically as well as visually' because:
(i) there was no explanation nor evidence as to what a physical inspection would entail;
(ii) there was no examination by her Honour of the reasonableness of such a system of inspection; and
(iii) there was no evidence that an inspection at some time before the accident would have revealed a defect in the rubber strip.
18 There is no doubt that the employer has a duty to take reasonable care for the safety of its employees. The obligation is to take reasonable steps to provide a safe place of work. The duty is that of a reasonably prudent employer and the duty is not to 'safeguard a worker completely from all perils': see MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110 [156]. The response to a foreseeable risk is to be judged by the criterion of reasonableness, and not some more stringent requirement of prevention: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [69].
19 The trial judge, in her reasons, began by directing herself by reference to those authorities. However, in finding a breach of duty, the trial judge did not find that the appellant had failed to exercise reasonable care, but had instead failed 'to ensure' that the respondent was not exposed to a risk of injury [119]. If this had been all, it might have been possible to see this as a slip of language, particularly if there was other material indicating that the trial judge meant to say that there had been a failure to exercise reasonable care. However, the fact that there was no evidence that the rubber strip was old or likely to fail and no evidence that the glue had failed or was about to fail, and that there was evidence that, before the accident, there was no visual sign of any defect in the stairs which required the appellant to carry out a physical inspection of each of the rubber strips, suggests that the trial judge meant what she said. It appears that the trial judge decided that there was a breach of the duty of care because the failure of the glue was 'capable' of being observed [112] and that, not having observed it, the appellant had not prevented the accident, rather than by considering whether there had been a failure to exercise reasonable care. That was an error. Ground 1 should be upheld.
Ground 2 - disposition
20 Likewise, ground 2 should be upheld. There was no evidence to suggest that a reasonable employer should have carried out some kind of physical inspection of the rubber strips on the stairs on a monthly basis or a weekly basis. There was also no evidence that an employer in the appellant's position, acting reasonably, would have carried out weekly or monthly physical inspections. There was no evidence of any industry experience that the rubber strips would fail after some specified period of time or that it was recognised in the industry that physical inspections should be carried out on a weekly and monthly basis. Nor was there any evidence of any suggestion of a defect developing, or any evidence that the glue was beginning to fail.
Ground 3 - disposition
21 This ground contends that the trial judge erred in finding the failure to inspect caused the accident. The trial judge said at [123] that she found that a proper inspection would 'more likely than not' have revealed any 'defect'. Senior counsel for the respondent was asked what defect would have been revealed and he submitted that the 'defect' which would have been revealed was that the rubber had moved slightly; that some glue was exposed; and that there was some dirt on the glue so exposed (appeal ts 48).
22 The respondent therefore based this part of his case entirely on the fact that Dr Chew said, as set out above, that 'if' the rubber strip moved away from the glue surface 'a little bit', the remnant surface would 'pick up dirt and the like and show sign[s] of that'. Dr Chew said that this would allow the 'inspector … [to] make a judgment call that it doesn't have to be replaced straight away' (ts 11).
23 For the trial judge to jump from Dr Chew's evidence that 'if' the strip moved away from the glue surface 'a little bit' and picked up 'dirt and the like and show[ed] sign[s] of that', to a conclusion that the defect would have been revealed had an inspection been carried out before the accident, was a jump not justified by the evidence. This is because there was no evidence of a defect consisting of a visible strip of glue with dirt on it. The people sent to inspect the strip after the accident did not see any strip of glue with dirt on it. Indeed, they found there was nothing to indicate in a visual inspection that there was anything wrong with the strip. Mr Virga said so. Mr Ellery was questioned about what happened when he physically moved the strip, and he said that 'it went back into place' (ts 405). He noticed nothing particular about the adhesive. Senior counsel for the respondent put much store on the fact that Mr Ellery said 'you could tell that the adhesive had come away' (ts 405), but it is clear that he said that because when he put his foot on the edge of the tread, it moved. If it moved, then, clearly, the adhesive had 'come away'.
24 The trial judge's conclusion that if an inspection had been carried out at some unspecified time before the accident, a 'defect' (that is, according to senior counsel for the respondent, a strip of glue with dirt on it) would have revealed itself, indicating the need for a physical examination of the strip, cannot be sustained on the evidence led at trial. Dr Chew's hypothesising about what he thought might have been visible was not borne out by the direct observation of those who inspected the strip after the accident. There was no evidence to support her Honour's conclusion that if an inspection had been carried out some time before the accident, a strip of glue with dirt on it would have been observed.
25 The result is that the trial judge erred in law in concluding that the failure to inspect meant that there was a failure to observe a defect consisting of a strip of glue with dirt on it, indicating some movement in the rubber strip. The failure to inspect, even if it did amount to a negligent omission, did not establish that such an omission caused the accident. Ground 3 should be upheld.
Cross-appeal
26 Because the appeal should be allowed, the following observations are provisional. The cross-appeal concerns the discounting by the trial judge of future economic loss. The respondent claimed he would have worked until he was 67 years of age, which was a further eight years and 35 weeks from the date of judgment [252]. Her Honour rejected that evidence and said that the respondent would have retired at 65 years of age [252]. Her Honour then applied a discount of 50% for contingencies. This was an extraordinary discount. The discount for ordinary adverse vicissitudes of life is usually between 2% and 10%: Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [38]; and Lawson v Flavel [2001] WASCA 272 [35]. The trial judge referred to the respondent's pre-existing condition which may have caused early retirement, but that had already been addressed by a reduction in the respondent's anticipated working life.
27 The main contingencies to be allowed for were the possibilities of sickness, some other accident, unemployment or industrial dispute. There was no evidence that the appellant's job was at risk. The discount of 50% for those contingencies was manifestly excessive.
28 An appropriate discount for contingencies would have been in the order of 10%.
29 The trial judge also erred in considering that there should be a 50% discount in relation to the amount allowed for identifiable future services and future medical and other expenses [262], [266]. The need for those future services and future medications and treatment would not be affected by any economic circumstances that may affect employment opportunities. There was no evidence of the possibility of some spontaneous recovery requiring some discount.
30 If the appeal had not been allowed, the cross-appeal would have been upheld, the award of damages set aside and it would have been appropriate for the parties to confer and bring in details of the appropriate adjustment to the award as a result of the above reasons.
Conclusion
31 The appeal should be allowed, the judgment of the trial judge set aside, and, in lieu, there should be judgment dismissing the respondent's claim.
32 NEWNES JA: I agree with Pullin JA.
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