Young, J. v Australian Telecommunications Commission

[1988] FCA 228

Re: ELSE MARIE McGAHEY
And: AUSTRALIAN NATIONAL UNIVERSITY
No. ACT G57 of 1987
Negligence

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Davies(1), Gallop(2) and Neaves(3) JJ.

CATCHWORDS

Negligence - laboratory technician responsible for grasshopper room at University - spinal damage - whether reasonably foreseeable - whether the University under a duty to adopt obviating measures - the nature of the duty owed by an employer - onus of proof.

Wyong Shire Council v. Shirt and Others (1980) 146 CLR 40

Bankstown Foundry Pty Limited v. Braistina (1986) 160 CLR 301

Vozza v. Tooth & Co Ltd (1964) 112 CLR 316

HEARING

CANBERRA

#DATE 10:5:1988

Counsel for the Applicant: Mr B.T. Sully, QC and Mr G.P. Brzostowski

Solicitors for the Applicant: Snedden Hall & Gallop

Counsel for the Respondents: Mr T.R.H. Cole, QC and Mr I. Roberts

Solicitors for the Respondents: Mallesons Stephen Jaques

ORDER

The appeal be dismissed.

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.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory on a claim for damages for personal injuries alleged to have been suffered by the appellant, Else Marie McGahey, as a result of the conditions of her employment with the respondent, the Australian National University. The learned trial judge dismissed the action, holding that there had been no breach of duty on the part of the University.

1. Mrs McGahey was born on 5 September 1950. She married in 1970 and sometime after the birth of her second child she returned to work at the University. She was employed full-time until April 1980 when she commenced working part-time on each day, Monday to Friday, for about a total of 25 hours per week as a laboratory technician. The learned trial judge recorded the following facts:-
   

"Her job was to look after the plant and stock in the grasshopper room. During the first twelve months or so there was another employeee working with her in the grasshopper room, but thereafter she worked on her own, without assistance and, so it would appear from the evidence, with little or no supervision. The dimensions of the grasshopper room are unknown. A sketch plan however shows that it was taken up by three rows of glass cabinets in which were kept the grasshopper cages. There was a space, like an aisle, less than a metre wide between the rows of cabinets. Each of the twelve cabinets contained four to five cages. Each cabinet had its own micro-climate whereby the humidity temperature and light could be controlled. The cages were of two sizes, large and small. The large cages were about 50 cm high, about 35 cm wide and deep. The small cages were about 38 cm high and about 25 cm wide and deep. They each had a plywood base in which circular holes about 6 cms in diameter were cut. Into each of those was inserted a plastic pot (referred to repeatedly in evidence as a "pod") containing water, grass or sand. The large cages could contain as many as 50 grasshoppers. The walls and roof of the cages were of fine insect proof mesh. The plywood door had a cloth sleeve opening whereby access could be gained for replenishing the pots and cleaning the cage."

I interpose that the cages were light in weight. One witness said that the larger cages would have been less than 15 pounds in weight, probably about 12 pounds. His Honour continued:-

"The cages within the containners were at two levels, supported on a wire rack. Mostly the small containers were placed on the lower level and the larger ones on the upper level.

The plaintiff's duties included the replenishing and cleaning of the pots, the cleaning of the cages and the disposal of waste material from the cages. To clean the cages at the lower level the plaintiff adopted the technique of half kneeling and half sitting on the floor. It is clear that there was a great deal of stooping bending and squatting. There was also a substantial amount of lifting, as the cages had to be lifted out of the cabinets for the purpose of cleaning them. They were cleaned on two days of each week. Furthermoore, the waste material had to be tipped into a tray and bin on a trolley and carted off to be burned in an autoclave, a sort of steriliser.

......

At some time in 1982 the plaintiff started to notice a cramplike pain in her right leg, which steadily increased. She did not associate the pain in the right leg with her work until, according to her evidence, she was advised of that possibility by Dr Andrews. The advice would not have been received before May 1983. In cross examination she conceded that she may not have complained earlier because she did not want to jeopardise her position at work. ......

The first time the plaintiff consulted any doctor concerning her right leg was on 12 October 1982 when she went to Dr Berenson complaining of pain in both legs and aching in the right hip. When she returned on 4 November 1982 she was referred to Dr Stubbs, an orthopaedic surgeon. There is no report and there was no evidence from Dr Stubbs, but according to Dr Berenson's report, Dr Stubbs could find no apparent cause of the pain.

......

She was referred to Dr Andrews who considered that there was possible nerve root irritation at the lumbo sacral level, and x-ray investigation at that stage indicated probable disc lesion at that level. Dr Andrews referred the plaintiff to Dr Chandran, a neuro surgeon. Dr Chandran ooperated on 21 February

1983. Operative findings confirmed the existence of a bulging of the disk at L5/S1. Part of the disc was removed."

1. Mrs McGahey continued to have problems. Her psychiatrist, Dr Lee, diagnosed "chronic pain syndrome with reactive depression". A CAT scan showed adhesions in the lumbo-sacral area which were capable of causing symptoms in the lower back but other symptoms, particularly pain in the cervical region, appeared to have no organic basis. The trial judge held:-
   

"... the depression from which the plaintiff has suffered has been substantially caused by that operation and its aftermath, including post operative adhesions, consequent lumbar pain and restricted movement and associated depression. I am further convinced on the balance of probabilities that the depression aggravates or brings about the perception of aggravation of pain in the cervical area."

The trial judge described Mrs McGahey's claim in these terms:-

"The essential thrust of the plaintiff's claim is that she was obliged over a periodd of years to carry out her duties for such periods and in such conditions and necessarily adopting such posture that she eventually suffered from symptoms attributable to a disc protrusion in the lumbo sacral spine."

1. One medical practitioner, Dr Arnold Mann, gave evidence that the bending, stooping and lifting which was involved in Mrs McGahey's work and the posture which she adopted were likely to be related to the bulging of the disk at L5/S1. However, the operating surgeon, Dr K.Y. Chandran, thought there was no connection and Dr C.J. Andrews went no further than to say that the work which Mrs McGahey did aggravated her back condition.

2. Mrs McGahey did not in the first instance attribute her pain to her work conditions and she did not claim to any person at the University that she was suffering a problem.

3. The trial judge did not state expressly that Mrs McGahey's work caused the prolapse of the disk at L5/S1. However, his Honour said:-
   

"I am convinced that the depression would not have occurred without the operation of February 1983 and that the necessity of the operation would not have occurred unless the plaintiff had been subjected to the working conditions that she had followed over a couple of years involving prolonged stooping, bending, squatting, kneeling, associated with lifting and twisting whilst in a bent position."

1. There was no express evidence before the trial judge that the system of cages installed in the grasshopper room was not a usual or proper system to have installed in an animal laboratory. The positive evidence relied upon by the appellant to support the claim of liability was first the evidence of Dr Andrews that, at some time, presumably in 1983 after the operation, Mrs McGahey brought one of the cages to his rooms. Dr Andrews tried to do what Mrs McGahey informed him she had been doing at work. He found it awkward and his back started to ache. That evidence does not take the matter far as Mrs McGahey did not complain of backache but of a cramp in the right leg, which she suffered both at work and at home, particularly at night while lying in bed.

2. Secondly, there was evidence from Mr Russell Cameron who said that in the last six months he had been doing the job Mrs McGahey used to do. He said that he did not find the bending involved in the work comfortable and, particularly after he had done heavy physical labouring work during the weekend, he suffered some soreness at the base of his spine. However, that evidence does not show that Mr Cameron or any other person considered the work involved a risk of unnecessary injury. Mr Cameron also gave evidence that at an earlier period he had bred grasshoppers in two rooms of the University called the "Insectory" and that in those rooms the cages were kept at chest height. However, there was no elaboration of this evidence. The evidence did not disclose whether in the Insectory the cages were kept in cabinets and no evidence was given comparing the processes carried on in the Insectory with the processes carried on in the grasshopper room.

3. Although the trial judge concluded that Mrs McGahey did not associate her work with her symptoms until May 1983 at the earliest, he concluded that it had been established that "the spinal condition was a reasonably foreseeable risk." His Honour said:-
   

"I am not able, ..., to conclude that it was within the defendant's actual or constructive knowledge that there was any substantial likelihood that the plaintiff would suffer the sort of condition she did in fact suffer, namely a disc prolapse. On the other hand, it seems to me that as a matter of common sense the possibility that the working conditions would give rise to spinal problems in an employee of ordinary strength and build was not an unreal or fanciful one. Therefore, the risk that the plaintiff might in due course, from repetitive activity of the nature I have described, suffer a disc prolapse, would have to be regarded as a foreseeable risk. It is unreal in the present case to talk of that risk in terms of risk of injury, and if it were necessary to fix a date or time on which any such injury or injuries was or were sustained, I should not be able to do so. However, it is not necessary to so precisely fix any such occurrence or occurrences. What is clear in my view is that by the time the plaintiff submitted to operation in February 1983 the damage had been sustained. It is likely, in my view, that the plaintiff's working conditions, again as I have described them, materially contributed to the spinal condition which necessitated operation in February 1983. I think therefore that the plaintiff has proved not only the causal connection between that condition and the system of work but that she has established that the spinal condition was a reasonably foreseeable risk."

1. In making that finding, his Honour presumably turned his attention to Wyong Shire Council v. Shirt and Others (1980) 146 CLR 40. In that case, at pp 44-48, Mason J., with whom Stephen and Aickin JJ. expressed agreement, said, inter alia:-
   

"According to Lord Atkin's statement of principle in Donoghue v Stevenson (1932) AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v Dorset Yacht Co Ltd (1970) 2 ALL ER 294; (1970) AC 1004 at 1027, 1034, 1054 and 1060; Anns v Merton London Borough Council (1977) 2 All ER 492; (1978) AC 728, at 751-2).

......

Notwithstanding this Australian support for a narrower version of the foreseeability doctrine as applied to breach of duty, this court would be well advised to accept that the law upon the point was correctly stated and applied by the Judicial Committee in The Wagon Mound (No 2). I say this not only because The Wagon Mound (No 2) was a unanimous decision given on appeal from the Supreme Court of New South Wales, but also-because there are sound reasons for accepting it as a correct statement of law.

......

In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry. ......

A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone (1951) A.C. 850, may nevertheless be plainly foreseeable. consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is farfetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it ceertainly does not follow that a risk which is unlikely to occur is not foreseeable.

......

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.

......

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."

1. However, Shirt's case concerned conduct, the placing of a sign in a lake used by water skiers, which sign could mislead though the risk of its doing so was unlikely. In the present case we are not concerned with conduct of that nature. In the present case, there was no allegation that any instructions given by or on behalf of the University were wrong or improper.

2. The trial judge went on to consider whether it had been established that the University's response to the foreseeable danger was unreasonable. His Honour no doubt had in mind the statement of Mason J. in Shirt's case at p 47-48:-
   

"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."

1. The trial judge set out the following acts and omissions which were relied on to establish liability:-
   

"(e) Failure to provide sufficient room and benches on which the cages could have been placed at a more comfortable level, thus avoiding the need for the Plaintiff to squat and lean forward in a position likely to cause the Plaintiff injury;

(f) In so far as the Plaintiff had to lift some of the said cages and carry same, failure to provide the Plaintiff with sufficient numbers of trolleys and other plant and equipment suitable for lifting and moving

(g) Failure to provide tthe Plaintiff with assistance with other persons fit and strong enough to help the Plaintiff to lift and move the said cages;

(h) Failure to warn the Plaintiff that she must not try to lift and move the said cages on her own;

(i) Failure to warn the Plaintiff that she must not try and perform her work on the said cages while the same were at a level which required the Plaintiff to squat and lean forward;

(j) Failure to instruct the Plaintiff that before performing her duties in relation to those of the cages as may have been at floor level, she should have obtained assistance from someeone strong enough to lift them to higher position."

His Honour said that, with the exception of (f), the adoption of one or more of these measures would have been likely to have obviated the risk of injury to Mrs McGahey. However, his Honour concluded that he was not convinced on the balance of probabilities that it was unreasonable of the University to have failed to adopt one of the obviating measures. In so concluding, his Honour was influenced by the relative unlikelihood of injury and by the absence of evidence that alternative means of carrying on the grasshopper breeding programme were feasible. His Honour referred to the fact that no complaint had ever been made by Mrs McGahey or any other employee about discomfort and that it was well known that in many occupations prolonged bending, stooping and squatting were required.

1. As I have already mentioned, the present is not a case such as Shirt's case. The crucial issue in the case is whether the University had instituted a system of work which would avoid exposing its employee, Mrs McGahey, to unnecessary foreseeable risk of injury. The nature of the duty was recently stated in Bankstown Foundry Pty Limited v. Braistina (1986) 160 CLR 301. Mason, Wilson and Dawson JJ said at pp 307-8:-
   

"What must be asserted is that the law has not changed. It is as accurate today as it was thirty years ago to say that the duty

'is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury': Hamilton v. Nuroof (WA) Pty Ltd. (1956) 96 CLR 18, at p 25.) per Dixon C.J. and Kitto J.

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 p 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 p 518.); McLean's Roylen Cruises Pty. Ltd. ((1984) 58 ALJR, at p 425; 54 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 p 230.)....."

1. In turning his attention first to the question of foreseeable injury and subsequently to the question of protection against that risk, the trial judge was undoubtedly correct. However, the more serious the risk or likelihood of injury, the more a prudent employer is called upon to take steps to protect employees against such injury. As Mason J. said in Shirt's case at p 47-8 in the passage already cited:-
   

"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....."

See also Bolton v. Stone (1951) AC 850 in which it was held that the foreseeable risk was so small that a reasonable man was justified in not taking steps to guard against it. As Lord Porter said at p 858, "The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken." Similarly in Vozza v. Tooth & Co. Ltd. (1964) 112 CLR 316 at p 318 Windeyer J. said, "The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils.". When the trial judge's reasons are looked at as a whole, as I think they should be, his Honour's view was that there was no risk against which a reasonably prudent employer should have guarded. I see no error in that conclusion and I think it is unnecessary to discuss separately the matters raised in the notice of appeal and those raised in the notice of contention.

1. In my opinion, the evidence did not disclose any risk to Mrs McGahey against which the University acting prudently should have guarded. All that the evidence disclosed was that the work involved a degree of bending, stooping, squatting and lifting. But there was nothing exceptional in this. Much manual work involves that. To my mind, there was no greater degree of risk of injury to an employee of good constitution than is involved in most manual work.

2. It was said that the work was awkward. However, the evidence did not show that any undue pressure was placed upon Mrs McGahey to accomplish her tasks within a limited time or that an expert would have recognised that the system of work was improper or that there was a ready or feasible means of doing the work more easily. It was neither alleged nor proved that the cages were improperly designed.

3. It will be noted that paras (f), (g), (h) and (j) of the particulars set out above were all allegations with respect to the lifting of the cages. But the cages were light and it was not shown that a reasonable and prudent employer would have protected a female employee against any danger involved in lifting such cages.

4. The other particulars went to the bending, stooping and squatting in the work. There were approximately 40 cages in the lower position. The following is typical of the evidence given by Mrs McGahey with respect to this matter:-
   

"Start for instance was (sic) with the aspect of feeding the grasshoppers; what physically did you have to do ?--- The grass - in the olden days you used to get honey in plastic pots. The plastic pots were filled with water or half filled with water and we would put our grass pods into that so that the grass would live longer because it could get the water from the bottom, and you would have to put your hand in the cage. Now, if the grass was in the hold (sic) you would have to put your hand underneath and push the one out, at the same time, keeping your hand over the hole so you did not lose the grasshoppers, and push the new one in and sift through the grass to make sure there were not any grasshoppers left and pull the old grass out.

....

Now, in attending to the grasshoppers to - that is to remove the pods or change them, how did you - you would have to arrange yourself physically in order to reach in when handling the - when changing the pods in the lower cages?---In the lower cages, the front ones you could crouch like and sit on your right leg and crouch down. To change the back ones you more or less had to kneel and almost lay down to reach them. ....

Can you tell us now how frequently did you have - so we know how many there were on the lower level or what might have been the range of the numbers on the lower, can you tell us how many minutes would you be in the squatting position per cage?--- It would depend on what I had to do in it. If I had to clean it, it would take me five or 10 minutes per cage. In the squatting position?---Yes, because I would be cleaning it and I would also change the grass at the same time. That would be one cage, five to 10 minutes.

And that would be virtually continuous squatting?---Yes, and then I would go into the next cage in the same cabinet and then I would stand up and do the top ones."

That evidence does not give a picture of a risk of injury against which an employer, who had not been informed of pain or discomfort, ought to have guarded. That in substance was his Honour's conclusion.

1. The case is different in its facts from those in Bankstown Foundry Pty Limited v. Braistina, cited above, in which it had been held at first instance that the manhandling of pipes weighing in the vicinity of 60 pounds each was not a safe system of work when a hoist was available to handle the pipes. At p 310, Mason, Wilson and Dawson JJ. said:-
   

"The task was a heavy one, involving the machine drilling of cast iron pipes at the rate of about forty pipes each hour in a repetitive process requiring constant care and attention on the part of the respondent. In prescribing a method which obliged him to manhandle each pipe in a manner which involved him at times in a lifting and twisting movement there was plainly a foreseeable risk of injury. It may be that the risk was only a slight one but it was certainly more than fanciful or far-fetched. The fact that finally establishes the libability of the appellant is the ready availability of the hoist, providing an alternative means of handling the pipes which would have eliminated any risk whatsoever. There was no undue expense or difficulty occasioned to the appellant in prescribing its use. Once it is accepted that such use would eliminate the risk of injury, it necessarily follows that a prudent employer exercing reasonable care would require that it be used, at least for those parts of the process where otherwise it would be necessary to engage in a full lift of a pipe."

Nor are the present facts similar to those in Turner v. The State of South Australia (1982) 56 ALJR 839, in which a workman injured his back while attempting to raise a full 44 gallon drum of diesel fuel into an upright position, or to the facts in Castro v. Transfield (QLD) Pty Limited (1983) 57 ALJR 619, in which a workman was injured while carrying an oxygen cylinder weighing approximately 146 pounds.

1. In the proceedings before the trial judge, the onus of proof lay on the plaintiff. See Neill v. N.S.W. Fresh Food and Ice Pty Limited (1963) 108 CLR 362, Vozza v. Tooth & Co. Ltd. (1964) 112 CLR 316, Australian Iron and Steel Limited v. Krstevski (1973) 128 CLR 666 and Kingshott v. Goodyear Tyre and Rubber Co No 2 (1987) 8 NSWLR 707. I reject the submissions which were put on this aspect of the matter by Mr B.J. Sully QC, senior counsel for Mrs McGahey. Mr Sully submitted that Mr Cameron's evidence as to the Insectory in which the cages had been maintained at chest height was some evidence of the existence of an alternate procedure and he submitted that, there being some evidence on the point, the burden lay upon the University to prove that alternate feasible procedures could not be adopted. Mr Sully referred to remarks of Dixon C.J. in Hampton Court Limited v. Crooks (1957) 97 CLR 367 at 371. He submitted that the facts as to the availability of other space or of other facilities within the University was a matter peculiarly within the knowledge of the University and, therefore, very little evidence needed to have been called on behalf of Mrs McGahey to demonstrate the probability of negligence.

2. In my opinion, however, the evidence given was not sufficient to show a prima facie case of breach of duty on the part of the University unless explained away by the University. The case is not like McLean v. Tedman and Anor (1984) 155 CLR 306 in which the availability of a safe system of work was clearly established by the evidence and the Court concluded that it was then for the employer to establish that it would have been unable to enforce compliance with that safe system of work.

3. The state of the evidence in this case is similar to that in Vozza v. Tooth & Co. Ltd., previously cited, in which at p 321-2 Windeyer J., with whose reasons Kitto, Taylor and Owen JJ. agreed, said:-
   

"The case no doubt is one of a kind in which a jury could assess evidence without the assistance of expert testimony, relying upon their own common knowledge and experience. But, although they did not need the guidance of experts, the jury did need to have evidence on which they could find the defendant guilty of negligence. To speak of a jury using their experience, common sense and common knowledge means nothing unless they be given facts to which they can apply their experience, common sense and common knowledge. The jury here really had no evidence that a different form of glove could have been provided, which would have been practically usable, and which would have prevented the injury that this plaintiff suffered."

In this present case, the evidence disclosed that the grasshoppers were reared in controlled conditions for a specific purpose but there was no evidence as to the significance of the design adopted for the cages, or why the cages were placed in the cabinets. In such circumstances, it would be difficult if not impossible for a judge relying merely upon common experience and knowledge to justify a finding that alternative procedures were feasible and their implementation desirable.

1. In my opinion, the appeal should be dismissed with costs.

JUDGE2

I have read the judgement of Davies J. in draft form and agree with the conclusions and reasons therein.

JUDGE3

I agree, for the reasons given by Davies J., that the appeal should be dismissed with costs.