Whitton v State of NSW

[2005] NSWCA 97

CITATION:	WHITTON v STATE OF NSW [2005] NSWCA 97
HEARING DATE(S):	30/03/2005
JUDGMENT DATE:	19 May 2005
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Bryson JA at 3
DECISION:	Appeal allowed with costs: see [44]

CATCHWORDS:	NEGLIGENCE – employment – school classroom – teacher suffered injury when, on rising from chair while working at computer table, her foot was caught in a loose cable – consideration of facts relating to history of teacher’s complaints to School Principal – Principals’ decision on action to be taken and degree of remoteness of risk – held risk was foreseeable and foreseen and there was breach of duty as response to foresight of risk was not reasonably adequate – judgment for damages to be assessed by District Court.
CASES CITED:	Andar Transport Pty Ltd v. Brambles Ltd (2004) 78 ALJR 907 Bankstown Foundry Pty Ltd v. Braistina (1986) 160 CLR 301 Dovuro Pty Limited v. Wilkins (2003) 77 ALJR 1706 Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 Wyong Shire Council v. Shirt (1980) 146 CLR 40
PARTIES:	Maria Christine Whitton - Appellant Stte of New South Wales - Respondent
FILE NUMBER(S):	CA 40151/2004
COUNSEL:	R. McIllwaine SC & R. Quickenden - Appellant P. Perry & K. Sibley - Respondent
SOLICITORS:	Peter Hudson Lawyer - Appellant Rankin Nathan Lawyers - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	278/2001
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

40151/2004

MASON P
BEAZLEY JA
BRYSON JA

THURSDAY 19 MAY 2005

WHITTON v. STATE OF NEW SOUTH WALES

Judgment

1 MASON P: I agree with Bryson JA.

2 BEZALEY JA: I agree with Bryson JA.

3 BRYSON JA: The appellant sued the respondent in the District Court at Gosford claiming damages for personal injury which she suffered on 23 May 2001 at the Budgewoi Public School, where she was employed as a teacher by the Department of Education and taught a class in Primary School Year 6. She appeals against judgment given for the respondent by Judge Patten on 6 February 2004. Findings of the Trial Judge and uncontested evidence establish that on 23 May 2001 the appellant arrived at school about 8 am, and that after opening the windows of her classroom and doing other things including turning on the computers, she sat at one of the computer tables and commenced to use a computer for preparation of the following week’s homework sheet. She worked for about twenty-five minutes. At about 8.35 am a bell sounded to indicate to pupils that the playground was monitored and that they could enter it. As the appellant had not finished the homework sheet she intended to shut the door of the classroom to prevent pupils from disturbing her. She stood up and turned to the left; she put her left foot out, turning at the same time, and caught her right foot in a cord which was part of the computer equipment. The cord caught her right foot quite tightly; it pulled backwards in a wrenching motion, and she overbalanced; but did not fall. She experienced a sharp pain across her lower back and mainly down her left leg. An injury in a motor accident in 1993 had predisposed her to adverse consequences of such an event.

4 Computers, keyboards, printer and other associated equipment in the appellant’s classroom were mounted on two tables arranged in an L shape to one side of the main body of desks. There were three computers, each had a monitor, a hard drive and a keyboard, and one computer had a printer; that is, there were ten separate pieces of equipment, which were connected by cords; at least three if not four cords per computer (Black 24-25). Each computer was supplied with electric power, which came from a double power point located on the wall nearby, and one of the power points was connected to a power board of six sockets which was under one of the tables. A double adaptor was plugged into the other power point, and cords led to various pieces of equipment from the power board and the double adaptor.

5 No one else was present in the classroom when the event happened. Mr McFetters, a teacher who was in an adjoining room, heard the appellant call out and went to her assistance. He said in evidence that when he went to help her he noticed that the cords underneath the computer tables were in disarray to such an extent that they protruded beyond the front of the tables. Evidence of the appellant shows that when the appellant caught her foot in the cord she was not looking at the cord and did not see it, although it would have been visible if she had looked. Although she did not look to observe whether there was a cord in a position which might trip her as she stood up, she knew that there were loose cords when she entered the room, because she could see them; she knew as she sat on the chair that her feet were close to the cords (Black 130-131). She was acutely aware of the possibility that the cords had been disarranged by one or more pupils and might have been made unsafe. (Black 104).

6 The appellant had been teaching in this classroom full time since January 2001. The classroom, and the arrangements of tables, chairs, computer equipment and cords, were things with which the appellant had daily familiarity over some months; and she was in charge of them in the sense that she was the classroom teacher and could decide whether the lay-out of tables and equipment should be continued or should be altered. She was familiar with events of cords coming out of their sockets and becoming unbundled.

7 The appellant said in evidence to the effect that quite often after the pupils had used the computers, the cords were pulled out of the power board and the longer cords would be right under the tables or pulled around the chairs (Black 30). It was her evidence that the cords could be felt while sitting on a chair (Black 32), and that the pupils could get their feet involved in the cords, and occasionally needed to crawl under tables to remove the cords (Black 33) or to push the cords back. The appellant further said that the cords could easily become entangled with the pupils or the chairs and that they needed to be put away or to be taped up (Black 31).

8 The Trial Judge while referring to some conflict between the evidence of Mr Thompson the Principal and of the appellant regarding the cords underneath the computer tables said: “… In light of the view I have formed about the matter, I do not need to resolve the issues [Mr Thompson] raised. I am content to accept the [appellant’s] evidence as accurate and reliable.” The evidence of the appellant was to the effect that some cords from the power sources led directly into equipment but others were of excessive length and hung onto the floor. There was a tendency for the cords to become entwined in the feet and legs of people who used the computers, and to be dislodged and disarranged. The appellant was also concerned with the behaviour of some pupils who mischievously pulled cords out of their sockets, leaving a tangle which was unsightly and in the view of the appellant was potentially dangerous. The appellant first tried to overcome the problem by taping excess lengths of cords to the underside of the tables, but the pupils kept pulling them down. The appellant’s concern heightened in the months of February, March and April 2001. Late in February she spoke about the matter to Mr Thompson. After speaking to him she again taped cords together and tied them together with strings, but again they were untied and pulled down, evidently by a pupil or pupils, and she was able to identify a particular culprit named Josh. Following a second conversation with Mr Thompson she sent Josh to be disciplined by Mr Thompson. She also mentioned the problem to other teachers. She suggested that something more permanent than merely taping or tying the cords was appropriate, but nothing was done about this before 23 May 2001.

9 Expert evidence about work safety was given on behalf of the appellant and also of the respondent. The experts’ reports were received in evidence, but neither expert was cross-examined. The report of Dr Neil Adams, an Ergonomics and Safety Management Consultant, was tendered on behalf of the appellant. In Dr Adams’ report he expressed these views: (RED 15L-R):

The workstation provided for Ms Whitton’s computer work was totally inadequate and potentially hazardous. The combination of a chair that contravened every ergonomic requirement or desideratum and a literal mess of cables beneath the table at which she worked set the scene for precisely the kind of injury occurrence that resulted. I would quite firmly express the opinion that it would be only a matter of time before a person moving from that workstation as it was set up at the time would suffer a trip and possibly a fall or other injury in precisely the way in which Ms Whitton suffered injury. The potential for such an injury occurrence ought to have been totally obvious to the employer.

10 Doctor Adams’ view was based both on the characteristics of the chair, which in his view could not be appropriately easily moved by a seated occupant, and also on the need to minimise loose cables. Doctor Adams gave a list of what he said were reasonable and obvious preventative actions that could have been implemented by the respondent. These were provision of a chair mounted on castors so that it could easily be moved backwards away from the workstation before attempting to rise, channelling the various cables and restraining them beneath the surfaces of the tables, against the wall and above floor level, or at the simplest level fastening them to the wall or underside of the tables using suitable strong adhesive tape; and warning the occupant of the presence of cables and the need to take care. Doctor Adams also gave expressions of view about the causation of the events in which he listed the disarray and multitude of cables among the primary causes of the appellant’s trip and injury. He also said: “… I would consider it quite foreseeable that eventually a worker leaving that workstation would suffer a trip or foot entrapment and injury as Ms Whitton did.”

11 The view of Dr. Adams which had (in my opinion) the strongest claim on attention is his view relating to some method of channelling the cords and restraining them beneath the surfaces of the tables or against the wall and above floor level. It appears that Dr Adams regarded it as an acceptable method of restraining the cords that they should have been fastened to the wall or to the underside of the tables using suitable strong adhesive tape. Accordingly Dr Adams’ view would not support a finding to the effect that it was negligent not to keep the cords boxed in by metal or plastic channelling, or that it was negligent not to keep the cables securely fastened by clips to the wall or to the underside of the tables. In other words Dr Adams’ view supported treating it as a reasonably sufficient measure to bundle and fasten cords to the tables using tape, so as to avoid an unacceptable accumulation of cords beneath the tables, and to guard against contact with them.

12 Two aspects of the facts and circumstances which Dr Adams did not mention appear to me to have significance. One is the need for some flexibility in the use and arrangement of computer equipment by groups of pupils in threes; several groups at the same time. At least to some degree, movement and rearrangement of equipment, and of cables and supporting equipment, are practical considerations which have to be allowed for, and limit the permanence or long-standing of arrangements for channelling and restraining the cables. The continuing problems of moving and adjusting equipment with changes in technology and equipment were described in the evidence of Mr McFetters, relating to his own classroom but in a way which can be readily applied to the appellant’s classroom. The other aspect is the phenomenon of dislodging and untying tape or strings by the action of pupils, including mischievous action but not necessarily limited to that; Dr Adams did not address this.

13 One of the measures mentioned by Dr Adams, giving a warning of the presence of the cords, is superfluous in the case of the appellant, who was fully aware of their presence, and would have learned nothing from a warning. The Trial Judge did not act on this. Another measure mentioned by Dr Adams, providing a chair mounted on castors, claimed little of the Trial Judge’s attention, and in my opinion it had no real claim on attention. Castors would have assisted the backward movement of the chair when rising, but, as the appellant acknowledged in cross-examination, moving her chair backwards by lifting it slightly would have been the simplest way to get out. There could be no real difficulty in managing a chair which did not have castors. It is obvious that a chair on castors would generate trouble in a classroom used by Year 6 pupils. Evidence illustrates this.

14 After consideration of the appellant’s evidence and Dr Adams’ report, the Trial Judge made the following findings:

It is beyond argument that the Defendant had a non-delegable duty in relation to the safety of the Plaintiff's workplace. The ambit of the duty was to take reasonable care to ensure that it was safe. The question, in this case, is, was there a breach of that duty. In my opinion, there was not, bearing in mind, that the test is reasonableness, not perfection.

It may have been foreseeable that an operator of the computers would catch a leg in one of the cords hanging down under the table and trip or suffer a twisting injury. However, in my opinion, the risk of this occurring was very remote and I do not accept Dr [Adams’] contrary view. His references to what for the most part were light electric cords as "cables" was, I think, somewhat misleading, as was his reference to the computer tables, as the Plaintiff’s “workstation”. She was a primary school teacher and I infer that most of her day was spent in face to face teaching. Moreover, the cords were under the tables and not impeding a passageway. In my opinion, the response of Mr Thompson to the Plaintiff’s complaint was not unreasonable when he, in effect, apart from agreeing to speak to Josh, told her to deal with the problem herself.
Dr [Adams’] suggestion that the chairs should have been mounted on castors, I regard, as quite inappropriate in a primary school classroom. There was no evidence as to the practicability of his suggestion that the cords could have been channelled or fastened to the wall with adhesive tape, given that the Plaintiff's attempt to do this had been frustrated by her pupils. It would not, in my opinion, have been unreasonable for Mr Thompson to regard the cords as an unsightly nuisance rather than a danger. Moreover, any danger was, in my view, obvious and readily avoidable (see Phillis v Daly (1988) 15 NSWLR 65 per Mahoney JA at p75). As McHugh J observed in Dovuro Pty Ltd v Wilkins (2003) 77 ALJR 1706 at 38
"A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk."

In my opinion, the circumstances deposed to by the Plaintiff do not establish a breach of the Defendant's duty of care towards her. There will be verdict and judgment for the Defendant. I order the Plaintiff to pay the Defendant's costs. Exhibits may be returned.

15 As the Trial Judge said, an employer’s duty of care is non-delegable; among other things, it cannot be delegated simply by leaving its performance to the employees. The Trial Judge did not approach decision on any view that discharge of the duty of care could be delegated to the appellant, that the appellant had a responsibility for workplace safety co-extensive, to any degree, with the responsibility of the respondent, or that there was contributory negligence. There was in his Honour’s findings no attribution of fault to the appellant; cf Andar Transport Pty Ltd v. Brambles Ltd (2004) 78 ALJR 907 at 917-918 [44]. There is no rule in negligence law to the effect that an employer may not treat expected action by the employee herself as a sufficient dealing with a foreseen risk.

16 Upon the findings made by the Trial Judge, the respondent in the person of Mr Thompson responded to the appellant’s complaint by agreeing to exercise discipline over the pupil named Josh, and by telling the appellant to deal with the problem herself. In the context of this finding, the citation from Dovuro Pty Limited v. Wilkins (2003) 77 ALJR 1706 shows that it was his Honour’s view that Mr Thompson and the respondent were not negligent in taking those courses and not taking any further action. The reference to Dovuro is not an indication that the Trial Judge regarded the case as one where there had been inaction and that inaction was a course reasonably open: on the findings there was action, and this is not a case of justified inaction.

17 The duty of the respondent as employer “… is that of a reasonably prudent employer and it is the duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”: see Mason, Wilson and Dawson JJ in Bankstown Foundry Pty Ltd v. Braistina (1986) 160 CLR 301 at 307-308 citing Hamilton v. Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. Their Honours in Bankstown Foundry v. Braistina went on to say at 308:

We digress to remark upon the formulation preferred by Windeyer J, with whom McTiernan, Kitto, Taylor and Owen JJ agreed, in Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319, namely: “For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.” This passage has been repeated more than once in recent decisions of the court: Raimondo v South Australia (1979) 23 ALR 513 at 518; McLean’s Roylen Cruises Pty Ltd (ALJR) at p 425; (ALR) at p 7. It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, “without unduly impeding its accomplishment”, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.
Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is “not a low one”: O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230 Whether or not it will be found to have been satisfied is always a question of fact to be determined in the light of the circumstances of each case. It is unhelpful to attempt to arrive at conclusions about what changing standards of reasonable care require merely by comparing the decisions in different cases because no two cases can provide true comparability in circumstances.

18 Their Honours also said at 309:

As Mason, Wilson, Brennan and Dawson JJ said in McLean v. Tedman (1985) 155 CLR 306 at 313: ‘Accident prevention is unquestionably one of the modern responsibilities of an employer.’ However it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employer. See Smith v. Broken Hill Proprietary Co. Ltd. (1957) 97 CLR 337 at 342-343: Da Costa v. Coburn Salvage and Trading Pty Ltd. (1970) 124 CLR 192 at 218.”

The present case is not one of repetitive work under strain such as this passage refers to.

19 In effect the Trial Judge found that Mr Thompson made a reasonable response to the risk of injury associated with catching a foot in the cords by agreeing to speak to Josh, and by telling the appellant to deal with the problem herself. The appellant was of course fully aware of the problem, as she had taken some measures to deal with it by fastening the cords to the underside of the tables, and had brought the problem to the attention of Mr Thompson. In practical terms telling the appellant to deal with the problem herself meant leaving it to her to exercise control over pupils in the classroom additional to his own exercise of discipline over Josh, and also leaving it to her to manage cords under the computer tables with strings and adhesive tape, rearranging the fastenings when necessary, such as with changes in equipment or when pupils dislodged the strings or tape. Fastening the cords to the underside of the tables using suitable strong adhesive tape was, it appears plainly, something which the Trial Judge regarded as appropriate for Mr Thompson to leave to the appellant to manage, as she had done in the past. This was a task within ordinary adult competence, not a task for expertise.

20 The finding that Mr Thompson had made a reasonable response is closely related to the Trial Judge’s finding about the remoteness of the risk of a tripping incident occurring. It is not possible to express in a precise or altogether clear way the degree of remoteness to which that finding refers, and the conclusion must be taken with the finding when one seeks to understand the degree of remoteness referred to. The Trial Judge did not accept Dr Adams’ assessment that “…it would be only a matter of time before a person…would suffer a trip and possibly a fall or other injury in precisely the way in which [the appellant] suffered injury” or his evidence that “I believe there is quite a high probability that a person…could suffer a trip or foot entrapment as they attempted to depart from that workstation.” It is clear that in his Honour’s finding the degree of risk was much lower.

21 The Trial Judge found that it was foreseeable that an operator of the computers would catch a leg in one of the cords and trip or suffer a twisting injury; but also found that the risk of this occurring was very remote. The Trial Judge also found that any danger was obvious and readily avoidable. His Honour’s references to the appellant’s spending most of her day in face to face teaching, to the cords’ not impeding a passageway, and to any danger’s being obvious and readily avoidable, are bases and also illustrations of the finding that the risk of injury was “very remote.”

22 In Mount Isa Mines Ltd v. Pusey (1970) 125 CLR 383 at 398-399, in a passage in which Windeyer J examined terminology and concepts central to foreseeability, remoteness and the discharge of duties of care, his Honour said:

Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts.

When discussing the word “remote” Windeyer J gave the following among expositions of uses of that word (at 399-400):

Sometimes too the phrase “remote risk” has meant an event which can be seen as a possibility, but one so unlikely to occur, or of such slight gravity of consequence if it should occur, that a prudent man might justifiably disregard it.

23 In a passage of some fame in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-48 Mason J also spoke of what a reasonable man would do by way of response to a foreseen risk as something to be decided by the tribunal of fact:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

24 Central to the Trial Judge’s disposition was his conclusion (Red 18) “In my opinion, the response of Mr Thompson to the [appellant’s] complaint was not unreasonable when he, in effect, apart from agreeing to speak to Josh, told her to deal with the problem herself.” Leaving the task to the appellant to manage impliedly shows recognition that disarrangement of the cords, through changes in equipment as well as mischievous action, was likely to continue and that the need to fasten the cords would present itself from time to time. The appellant’s opportunity to observe the state of the cords is one of the circumstances within which to assess foreseeability and remoteness of the risk of injury. Although his Honour did not spell the whole of this out, the finding that the response included in effect telling the appellant to deal with the problem herself, and that this was a reasonable response, implies a finding that the respondent in the person of Mr Thompson considered what should be done in response to the foresight of risk, and decided that the appropriate response was that the appellant should continue to deal with the problem in the way in which she had earlier dealt with, and to tell her to do so in the expectation that she would do so. Read in this way, the judgment shows that the Trial Judge regarded it as a reasonable response to the foreseen risk of injury that the employer should make that decision, and carry it out in that way. Upon the facts as the Trial Judge found them that would not, in my respectful view, be the only conclusion available on the question of fact or, in Windeyer J’s words, on the value judgment which the Court must decide with respect to reasonable response to foreseeing risk of loss. The feeling, which I have, that I could well have reached a different conclusion if it had fallen to me to make the value judgment is not a demonstration of an error which should be corrected on appeal.

25 The facts as found by the Trial Judge include two matters which are essential pillars for the value judgment: the finding about the degree of risk and the finding that Mr Thompson did in effect tell the appellant to deal with the problem herself with the inference that he considered that that was the appropriate way to deal with the problem. Senior Counsel for the appellant challenged the finding that the risk of injury was very remote, and contended that it was a wrong finding which should be reversed. Counsel observed that the use of computers was part of the appellant’s daily routine, notwithstanding that it occupied less time than face to face teaching; he submitted that the reference to face to face teaching was an irrelevant observation, and made the same submission relating to the reference to the cords not impeding a passageway. It was also said that the judgment did not show why the Trial Judge did not accept Dr Adams’ assessment of the degree of risk.

26 To my mind it is plain that there is inherent danger in an arrangement of work space in which a number of cords form a tangle under a work table may hang down and may possibly become involved in the feet of persons working at the work table. In the present matter, a number of factors operated against the risk maturing into an injury, including the observability of the cords and the appellant’s conduct in taping them up and securing them with strings. However in the context of the standard of reasonable care required of employers in the provision of a safe place of work the risk was, in my opinion, plainly not one which was appropriately dealt with by leaving it to the appellant to see to her own personal safety. The danger was sufficiently clear and obvious for the Court to be entitled to act on its own assessment even if there had been no expert evidence. There was an obvious need to secure the cords out of the way of possible involvement with feet; the means available included channelling, clips, adhesive tape and there might have been others. In the actual operations in the appellant’s classroom in 2001, securing the cords with adhesive tape and strings had proved to be ineffective. Mr Thompson’s evidence showed that in his perception securing the cords with tape and strings was a temporary solution only; that is to say, he saw that the phenomenon of loose and trailing cords was likely to recur. The risk that a person operating a computer would catch a leg or a foot in one of the cords hanging down under the tables and trip or suffer a twisting injury was not high, but it was clearly recognisable and it was not correct for the Trial Judge to find that it was very remote.

27 In my view of the facts the danger was obvious even though it was not intense, and, while allowing for the difficulties of any clear expression of a concept of remoteness, it does appear to me that his Honour made a finding about degree of remoteness which unduly discounted the possibility that the risk would mature. In my finding, it was quite likely that, with continued use of the equipment over time, someone would be tripped by involvement in the cords; and this involved risk of injury to a degree of likelihood which can be clearly recognised notwithstanding the evident possibility that most users would negotiate their way without being tripped, and that favourable outcomes might continue for a long time. The risk of tripping which I perceive would arise in quite ordinary everyday use of the tables and equipment, and it is not necessary to extend consideration to measures which take account of the possibility of thoughtlessness, inadvertence or carelessness on the part of the appellant, or to repetitive work under strain.

28 Senior Counsel for the appellant further contended that the Trial Judge’s finding that Mr Thompson did in effect tell the appellant to deal with the problem herself was not justified on the evidence, and thus the basis for his Honour’s inference that there was a considered decision by Mr Thompson that that was enough is not available. As the finding was one of the pillars of the Trial Judge’s decision, if it is not correct it falls to the Court of Appeal to decide what the employer’s response to the foresight of risk of loss was, and whether that response was adequate.

29 The Trial Judge’s findings about the response of Mr Thompson to the appellant’s complaint must be based on the oral evidence of the appellant and of Mr Thompson, which I will review. Attention should not be limited to these conversations as the employer’s responsibility was wider than a duty to hear complaints and respond to them; the employer’s duty to take reasonable care with respect to the safety of the workplace is irrespective of there being a complaint. Mr Thompson’s evidence differs from that of the appellant with respect to times, and also to some degree to the contents of their conversations. The Trial Judge acted on the evidence of the appellant, which appears to me to have been fuller in detail and clearer than the evidence of Mr Thompson.

30 The appellant gave evidence that she spoke about her concern to Mr Thompson within about three or four weeks of first term beginning, in mid to late February 2001, in the staff room at recess. She said to him, with expletive emphasis: “Those … computer cords are driving me crackers.” Mr Thompson said to the effect: “What’s the problem?” and the appellant said to the effect: “They’re down on the floor, they get in the way all the time.” Mr Thompson said: “Well, you can tape them up” and the appellant said: “I’ve tried that and they keep pulling them down” (In the context “they” refers to the pupils) and “They keep getting in the way.” (And in context “they” refers to the cords.) Mr Thompson said to the effect: “Try putting them up” and the appellant said that she had done so. Mr Thompson then asked: “Well, what did you do?” and the appellant said: “I had got the kids to pull the tables out so we could put the cords in behind it and tape them up to the back of the table.” She repeated this as: “I got the children to lift the table forward and I pulled the cords as tight as I could to tape them to the back of the tables at the top so they weren’t hanging down. The trouble with that is, they keep being pulled down.” That was the end of that conversation (Black 34-35).

31 After this conversation the appellant tied a string around the cords to group them together, and taped them up to the underside of the table again, in much the same taped position as they had been before. This was an improvement; when the tape was broken, pulled or moved, the cords initially stayed together, but the string was later cut or untied and the cords were hanging again.

32 The appellant had another conversation with Mr Thompson, a brief mention during a recess just before Easter, and before her injury. In this conversation, the appellant said: “I’ve had enough of Josh,” referring to a particular child whom Mr Thompson could readily identify. The appellant said: “Every time I fix those damned cords, he pulls them down, undoes them, pushes the feet against them. It’s just like a never-ending trial of having to stick them back up and he just pulls them back down. Even if Josh isn’t doing it, every time the kids sit at the table, they seem to push against them and they just come back down again, so it needs something more permanent done. And that one power board definitely was not enough.” Mr Thompson said: “Well you know, send Josh up and I’ll have a chat to him.” Otherwise he did not really give an answer (Black 37). Later on the same day there was a general discussion regarding this issue amongst staff in the staff room at lunchtime, but Mr Thompson was not present.

33 At a later point in her evidence (Black 40) the appellant said to the effect that she thought, and told Mr Thompson: “Well, I felt if we had proper computer tables and the correct cabling and … those things that tie the cords up, that might have been more effective than what we were doing.”

34 Cross-examination of the appellant was not directed to challenging the accuracy or completeness of her account, but to giving emphasis to some aspects of it. The following passage in cross-examination relates to discussions between the appellant and Mr Thompson (Black 97G):

Q. Mr Thompson made the suggestion of taping the [cords] back so that they no longer constituted a hazard?

A. Correct.

The leading question did not fully or completely accurately narrate the effect of previous evidence, or of evidence which Mr Thompson later gave. There was a further passing reference to the complaint about Easter time (Black 102J-M), referring back to the appellant’s telling Mr Thompson about continued mischievous action by Josh: (BLACK 103B-D)


Q. The never ending trial that you, was the word that you told us you used to Mr Thompson, of you, with the aid of the masking tape and other children, securing the cords so that they were safe?

A. Uh huh.

35 Mr Thompson did not recall (Black 174) a conversation with the appellant within the first month of school year. He gave in evidence a brief conversation that he had with the appellant later in the term, just at the conclusion of the recess as teachers were proceeding to classrooms. In that conversation (Black 175) the appellant said to him to the effect that the computer cords were a problem in some way for her, and that she was annoyed with the computers. Mr Thompson responded: “I said to try and pull the cords up out of the way.” He did not recollect her response and the conversation ended.

36 In Mr Thompson’s evidence there was a second conversation, later but before the appellant’s injury, in which the appellant said (Black 176K-S):

A. She discussed with me a child in her class that had been creating problems for her. The child to my – her statement regarding the child to the best knowledge is that the child had been playing with the computers in some way creating problems for the operation of those computers within the classroom for the children’s learning.

Q. Did you have a response to her compliant?

A. Yes I said to send the child to my office and I would talk to him.

Q. Was that then done?

A. Yes.

Q. The child’s name I think was Josh?

A. Yes.

Q. And subsequent to having spoken to Josh I take it that you spoke to him with a view to counselling him concerning the complaints that had been made, is that right?

A. Yes I did, I spoke to him and reprimand him for tampering with the computers and sent him back to class.

37 Evidence of Mr Thompson in cross-examination (Black 197) showed that he did not recall details of the conversation. “… I don’t recall her stating exactly what the exact problems were but she did state that she had a problem with cords.” In Mr Thompson’s evidence there were no further conversations with the appellant about computer cords.

38 In my opinion, the Trial Judge’s finding that Mr Thompson told the appellant to deal with the problem herself is not a correct finding. According to the appellant’s evidence, on the first complaint Mr Thompson said that she should try putting the tapes up but this was a first response in the middle of the conversation followed by her explaining what she had done and why it was unsatisfactory; it was not a decision by Mr Thompson to dispose of the problem that way. According to the appellant’s evidence, on the second conversation with Mr Thompson before Easter his only response was that she should send Josh up to be reprimanded.

39 Even if the Trial Judge’s finding that Mr Thompson told the appellant to deal with the problem herself was a correct finding, Mr Thompson’s response was, in my opinion, inadequate. The appellant did take measures to secure the cords and eliminate the danger, she did so within the range of ordinary adult non-expert competence; she did so repeatedly and the measures she took had only temporary effect and were not a continuing solution. She was of the view that something more permanent needed to be done; and she told Mr Thompson her view. In these circumstances it was not, in my finding, appropriate to leave the problems to be dealt with by her continuing management, with the means available to her, and to take no other step.

40 There would I suppose be many situations in offices or other workplaces where securing computer cords with strings or tape would be reasonably effective, but experience had shown that this was not reasonably effective in the appellant’s classroom, because of a combination of there being many pieces of equipment and cords, use of the equipment by a number of pupils and mischievous action by pupils, including one identified pupil in particular. The appellant in terms repeatedly informed the respondent in the person of Mr Thompson that securing the cords with tape and strings was not effective, and that the danger recurred. The response of Mr Thompson was to require the pupil Josh who had been seen disrupting the tape and strings to attend him and be reprimanded; and he did this. This was a relevant and useful response, but in my opinion was not a reasonably sufficient response given that reprimands are not always efficacious, that the causes of the recurring difficulty were not limited to the mischievous action of that one pupil and there were other mischievous pupils, and that the reappearance of the problem was not caused only by mischievous action.

41 Other possible courses of action could have been carried out; to set up a routine for checking the state of the cords, strings and tape to make sure that they were remained secured, to make some arrangement for the school’s General Assistant to secure the cords by channelling such as mentioned by Dr Adams, by clipping such as was later installed, or in some other way. In the context of reasonable response to risk of personal injury the kinds of measures which could have been taken, and later were taken, could not have involved any technical difficulty or significant costs. The barriers to a better solution than classroom extemporisations with binding tape and strings were quite low; the General Assistant was available, and, when attention was brought to bear on the matter, the provision of clips to which evidence refers could not have been an elaborate or expensive exercise. It was not, in my opinion, sufficient to respond only by reprimanding one mischievous pupil; it was obviously likely that if the employer took no other action the problem and the danger would recur. On the basis of my finding, differing from that of the Trial Judge, that the response of Mr Thompson was to reprimand Josh but not to take any other action, my own value judgment is that the employer did not respond to the foresight of injury in the manner in which a reasonable person should have responded.

42 Both the findings which I have described as essential pillars of the Trial Judge’s value judgment are incorrect. His Honour’s conclusion on negligence should be set aside and the Court of Appeal should determine that matter again: on the factual issues the Court of Appeal is not in my view under any disadvantage in reaching its own conclusion on the evidence as recorded. In my view it should be found that there was no adequate response to the foreseeable risk of injury and that the appellant’s injury was caused by a breach of the employer’s duty of care with respect to provision of a reasonably safe place of work. The Trial Judge’s decision should be set aside, judgment should be given for the appellant, and her damages should be assessed.

43 Senior Counsel for the appellant contended that this is not an appropriate case for the Court of Appeal to assess damages because at several points determination of facts relating to assessment depended upon appraisal of the evidence of the appellant herself. Counsel for the respondent contended that the Court of Appeal is in a position to decide those questions. No question relating to damages was disposed of by the Trial Judge. By Notice of Contention the respondent claimed that it was entitled to succeed because the appellant would not satisfy the relevant threshold contained in ss.151G and 151H of the Workers Compensation Act 1987 in the form which those sections took at the time of the appellant’s injury and claim. Subsection 151G(4) fixed a minimum amount of non-economic loss below which no damages for non-economic loss were to be awarded; at the relevant time the minimum amount was $44,600 which was approximately 17.6% of the then maximum amount. Subsection 151H(1) made a requirement that the injured worker should have received a serious injury (as defined) if damages were to be awarded for economic loss; in the workings in the then definition of serious injury in subs.151H(2A), an injury for which damages for non-economic loss were not less than $59,450 was a serious injury. The assessment of damages and the attainment of these thresholds raised elaborate factual questions, as the appellant had suffered (and recovered damages for) an injury incurred in a motor vehicle accident on 4 December 1992, which left her with some continuing back pain and disability, and (it would seem) a predisposition to exacerbation in events such as that out of which the present claim arises.

44 Assessment of the impacts of the injury out of which the present claim arises involves attention, likely to be elaborate and detailed, to the effects of later incidents; exacerbation of back pain following exertion during a school excursion to the Blue Mountains in August 2001, and a fall on stairs at home on 11 May 2002. The appellant also suffered from an emotional condition, which she attributed to her injuries, and she has had consultations and treatments by psychologists, extending over some years at considerable expenses. Evidence of medical practitioners and psychologists relating to these events and their condition is quite elaborate. It would be central to decision to establish what effect on the appellant was produced by each adverse event in this series. Her own evidence and the credibility of her evidence about her pains and symptoms throughout would be of high importance for resolution of the issues.

45 In my opinion the issues involved in assessment of damages cannot be disposed of on a fair and just basis unless the Court making the assessment has the opportunity to hear the appellant’s evidence and come to some conclusion on its reliability with the advantage of observation of her demeanour. If the matters raised in the Notice of Contention succeed the result will, according to the contention, be that none of the thresholds were passed and the appellant would recover no more than a relatively small but still significant sum for medical and psychologist expenses which have not been paid by the respondent’s Workers Compensation insurer. It will be clear that an order for a new trial limited to damages will leave it open to the respondent to raise at the new trial the contentions which it wishes to raise under its Notice of Contention.

46 In my opinion the Court of Appeal should order:

(1) Appeal allowed with costs: judgment and orders of the District Court set aside.

(2) Order that there be judgment for the appellant for damages to be assessed and that the action be remitted to the District Court for the assessment of damages in accordance with law.

(3) Order that the respondent pay the appellant’s costs of the first trial.

(4) Order that the costs of the second trial be determined by the District Court.

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