Williams v Mt Isa Mines Ltd

[2001] QCA 101

SUPREME COURT OF QUEENSLAND

CITATION:

 Williams v Mt Isa Mines Ltd [2001] QCA 101

PARTIES:

GREGORY LYALL WILLIAMS
(plaintiff/appellant)
v
MOUNT ISA MINES LIMITED (ACN 009 661 447)
(defendant/respondent)

FILE NO/S:

Appeal No 5660 of 2000
SC No 26 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Mount Isa

DELIVERED ON:

20 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

9 March 2001

JUDGES:

McMurdo P, Williams JA and Ambrose J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITY AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SUPERVISION AND INSTRUCTION – whether employer breached its duty of care in failing to instruct employee in the mode of egress from a vehicle used in the course of employment – whether there existed circumstances that made a specific warning or special training necessary.

Anderson v Mount Isa Basketball Association Inc [1997] Aust Tort Rep ¶81-451, distinguished
Bus v Sydney County Council (1988-89) 167 CLR 78, considered

Cross v TNT Management Pty Ltd [1987-88] 46 SASR 105, distinguished

McLean v Tedman (1983-84) 155 CLR 306, considered
Mclean's Roylen Cruises Pty Ltd v McEwan (1984) 54 ALR 3, considered
The Council of the Shire of Wyong v Shirt & Ors (1979-80) 146 CLR 40, considered
Turner v The State of South Australia (1982) 56 ALJR 839, considered
Webb v The State of South Australia (1982) 56 ALJR 912, considered

COUNSEL:

R J Douglas SC for the appellant
R A I Myers for the respondent

SOLICITORS:

V R Moffatt & Associates for the appellant
Thynne & Macartney for the respondent

1. McMURDO P: The appellant claims the learned primary judge erred in concluding that the respondent employer was not liable in damages for injuries the appellant suffered in the course of his employment on 30 October 1995.

1. The appellant worked in the respondent's parks and gardens department and was injured whilst alighting from a Toyota Dyna two-tonne truck; a compact small truck which could be lawfully driven by anyone with a passenger car licence.  The learned primary judge accepted the appellant's account of how he sustained the injury.  The appellant opened the driver's door, swung his body to the right, placed his left hand on the driver's door window sill as the window was fully open, placed his right hand on the seat, lifted his body slightly and put his left foot on the outside recessed small step which was no wider than 3¾ inches, placed some weight on the step but slipped, lost his grip on the door and fell, his body twisting to the left.

1. The respondent provided no instruction to its employees as to the safest method of alighting from such vehicles.

1. The learned primary judge noted in his reasons that the appellant's case at trial was that the truck was inadequately equipped, especially for a person of the appellant's height of 5 foot 3 inches; the appellant called an ergonomics expert, Mr King, who suggested possible improvements to the vehicle to provide a safer work place for the appellant.  His Honour also noted that the respondent relied on Dr Olsen, a consultant physician in occupational medicine, who considered Mr King's suggested alterations to the truck inappropriate for it would be unsafe to tamper with a standard vehicle like this.  His Honour concluded that:

"Dr Olsen went too far in adopting that position.  But by the same token I am not satisfied that it was reasonable that [the respondent] should have modified the vehicle in the ways Mr King suggested."

1. The appellant does not complain about this finding of the primary judge, but takes issue with the judge's later finding that:

"The particular method of safely exiting from the vehicle was a matter of common sense which could be reasonably left to the individual employee."

1. The appellant submits that the respondent should have specifically instructed him not to alight from the vehicle facing forward and using the step, but rather to exit facing backwards using the step or, alternatively, facing forward not using the step, but stepping directly onto the ground.

1. The appellant submits that the significant magnitude of the risk of injury to the employee (damages were assessed, after reduction of the WorkCover refund at over $275,000), the degree of probability of the occurrence of the injury and the expense, difficulty and inconvenience in taking alleviating action[1] warranted the conclusion that the respondent had breached its duty to the appellant; it would have been a simple matter to give appropriate instruction and training in the safest method of alighting from the truck.

   [1]See  The Council of the Shire of Wyong  v Shirt & Ors (1979-80) 146 CLR 40, 47-8; Anderson v Mount Isa Basketball Association Inc [1997] Aust Tort Rep ¶81-451, 64,385.

1. The appellant also emphasises the increasing recognition given by the courts to the need for employers to take into account the possibility of inadvertent or even negligent conduct on the part of employees[2] such that decreasing weight is given to the obviousness and ordinariness of the risk, especially where the risk of injury can be eliminated without undue difficulty or expense.[3]

   [2]Bus v Sydney County Council (1988-89) 167 CLR 78, 90; McLean v Tedman (1983-84) 155 CLR 306, 311-2; Anderson, 64,385.

   [3]Turner v The State of South Australia (1982) 56 ALJR 839, 840; Webb v The State of South Australia (1982) 56 ALJR 912, 913.

1. The appellant gave evidence that he believed the safest way of alighting from the vehicle was to face forward and to use the step.  He used this method without any problems; it was the same manner in which he alighted from his own Toyota Landcruiser. Had he been given instructions to alight in a different manner, he would have discussed his preferred method with his supervisor, but he would have followed his supervisor's instructions.

1. Mr King gave evidence that it was inappropriate to use the step in a forward dismount because of the risk of slipping, a situation aggravated by the appellant's relatively short stature.  Although Mr King's primary contention was that the vehicle required modifications to make it safer, he added that in any case "… it did not appear [the appellant] appreciated the relatively small safety margins" in alighting from the vehicle.  He suggested modifications to the truck and also emphasised the need to train the employer to minimise the risk in alighting from such vehicles

1. Another employee, Ms Turner, who is about the same height as the appellant, gave evidence that she sometimes exited the truck in the same manner as the appellant, that is facing forward and using the step; she did not find this method unsafe. The appellant's supervisor, Ms Christensen, and others alighted from the truck in a variety of ways without incident, sometimes by facing forward and sliding down to the ground, a distance of only about 10 inches. No other employees were ever injured exiting the truck.

1. After the appellant's injury, Ms Christensen noted in an investigation worksheet that the step on the truck was difficult to see, especially for a short person, and suggested in an action plan that instruction should be given on how to most safely alight from the vehicle when training employees.

1. Dr Olsen concluded that the method used to alight from the vehicle by the appellant was "not at all unreasonable and … does form a reasonable and safe method of alighting from the truck".

1. Although the primary judge did not specifically rely on Dr Olsen's evidence, it clearly supported his Honour's conclusions that the vehicle was appropriate for safe and effective work within the respondent's business and that the particular method of safely exiting from the vehicle was a matter of common sense which could be reasonably left to the individual employee.  These findings were also supported by the other factors noted by his Honour, namely that there had been no other such incidents and the appellant exited the vehicle by a means which he considered safe and one which he had used without incident many times previously.

1. The respondent clearly owed the appellant a duty to take reasonable care to avoid reasonably foreseeable risks of injury.  There was no evidence that the respondent knew of any significant risk to the appellant in alighting from the vehicle in the manner he adopted[4] or that the degree of probability of the injury to the employee was high. Dr Olsen gave evidence that the appellant adopted a safe method to alight from the truck.  There was no suggestion that the step on the truck was damaged or worn.[5]

   [4]Cf Anderson Anderson v Mount Isa Basketball Association Inc1997] Aust Tort Rep ¶81-451, 64,385.

   [5]Cf Cross v TNT Management Pty Ltd [1987-88] 46 SASR 105, 107.

1. Alighting from the truck was an ordinary everyday event which involved some obvious risk; an employer could not reasonably be expected to warn of the potential danger of such a risk; any risk must have been obvious to the appellant who described the process as akin to alighting from his own Toyota Landcruiser. There were no circumstances here that made a specific warning or special training necessary: see Mclean's Roylen Cruises Pty Ltd v McEwan.[6]

   [6](1984) 54 ALR 3, 8.

1. A consideration of all relevant factors justifies the primary judge's conclusion that the respondent did not breach its duty of care by failing to specifically instruct the appellant not to exit from the vehicle in the manner chosen by him; there was nothing unsafe in the method of exiting from the vehicle adopted by the appellant.  His Honour was entitled to conclude on the evidence that the appellant slipped and was injured through misadventure, not through a breach of duty.

1. I would dismiss the appeal with costs.

1. WILLIAMS JA:  The relevant facts are fully set out in the reasons for judgment of McMurdo P which I have had the advantage of reading.  The appellant's evidence clearly established that he adopted for himself what he thought was the safest way of getting in and out of the vehicle in question, namely a Toyota Dyna 2-tonne truck.  That vehicle was used by numerous employees of the respondent company, and it is obvious from the evidence given by a number of them that each adopted what that person regarded as the safest and most comfortable way of getting in and out of the vehicle.

1. The appellant personally owned a Toyota Land Cruiser which was described as a vehicle similar to the Dyna.  The appellant essentially conceded under cross‑ examination that there was little difference between the two vehicles so far as getting in and out was concerned.

1. There was nothing exceptional about the task of getting out of (or into) the vehicle.  There were a number of ways that could be done safely.  It was for the appellant to determine what was the safest method for him to adopt given his height, weight etc.

1. The incident which led to the appellant sustaining an injury was one of those misadventures which does not necessarily bespeak negligence on the part of an employer.

1. I am not satisfied that there is any error in the reasoning of the learned trial judge.  I agree that the appeal should be dismissed with costs.

1. AMBROSE J:  I agree.