Liftronic Pty Ltd v Unver
[2001] HCA 24(2001) 75 ALJR 867
[2001] Aust Torts Reports 81-604
(2001) 179 ALR 321
(Judgment by: Gummow J, Callinan J)
Liftronic Pty Ltd
vUnver
Judges:
Gleeson CJ
McHugh J
Gummow JKirby J
Callinan J
Legislative References:
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) - s 10(1)
Judgment date: 3 May 2001
Judgment by:
Gummow J
Callinan J
[47] This appeal raises no new point of principle but requires the intervention of this Court to correct an impermissible interference by the Court of Appeal of New South Wales with an entirely reasonable apportionment of fault by a properly instructed jury after an unexceptionable trial.
Case history
[48] The respondent and an apprentice, Mr Dawes, were instructed by a foreman on behalf of the appellant, their employer, to clean and paint some steel rails each weighing approximately 111 kilograms. The respondent was then thirty-two years old, with some experience in the work that he was instructed to do.
[49] The work involved moving each rail, one at a time, from a bundle of rails and placing it on to two pieces of wood which were set up on the floor about two metres away so that it could be cleaned and painted. Lifting hooks were available to assist in the lifting and placement of each rail.
[50] The respondent was given explicit instructions to keep his back straight and to bend his knees in any attempt to move or adjust the position of a rail. On 20 February 1995, whilst carrying out his work, the respondent told Mr Dawes that he was "fed up" with the method which they had been instructed to adopt. He decided to look for some means by which the rail could be raised above the floor to such a height as would enable it to be cleaned and painted by him in an upright position.
[51] He found a scaffold frame about two feet high and placed it in a position in which it could be used to support a rail. He and Mr Dawes manually, rather than using the lifting hooks provided, lifted the next rail on to the scaffold frame. Within about five to ten minutes after adopting this new procedure, the respondent complained of pain and discomfort in his back. He was subsequently found to have injured his back.
[52] Mr Dawes gave evidence at the trial about the nature of the work he and the respondent were doing at the time:
"Q. And you were there and you were doing this, did you experience it - your own experience, the use of the hooks and moving them over onto the timber, as you experienced it, how difficult was that for you?
A. Using the hooks it's very easy work. It's not very hard at all because you're keeping your body straight but actually bending over and picking up rails is a very hard job."
In the District Court of New South Wales
[53] The respondent claimed damages for negligence on the part of the appellant for personal injuries to his back in the District Court of New South Wales. The case was tried by Dodd DCJ with a jury.
[54] The jury brought in a verdict for the respondent but found that his damages should be reduced by 60% by reason of his own negligence. In doing so they must have preferred the evidence of Mr Dawes to that of the respondent because Mr Dawes said that explicit directions as to the method of work to be adopted had been given by the foreman on behalf of the appellant, whilst the respondent denied that he had been given any relevant instructions at all. Judgment was accordingly entered for the respondent for damages reduced by 60%.
In the Court of Appeal of New South Wales
[55] The respondent appealed to the Court of Appeal of New South Wales [13] . The grounds of appeal included that the trial judge should not have allowed the issue of contributory negligence to go to the jury, and that the finding of contributory negligence to the extent of 60% was perverse.
[56] On 29 July 1999 the Court of Appeal, (Brownie AJA with whom Mason P agreed; Meagher JA dissenting) held the jury's assessment of 60% to be perverse and substituted a finding of contributory negligence of 20% in reduction of the respondent's damages. Meagher JA gave a short judgment as follows [14] :
"In this matter I disagree with Brownie AJA. The matter seems to me to be entirely covered by the High Court decision in Podrebersek v Australian Iron & Steel Pty Ltd [15] .
As Brownie AJA concedes, there was ample material for the jury to find contributory negligence. Indeed, he himself would put it at 20%. The appellant invented a new and dangerous system of doing his job, that new system made the use of lifting hooks (invented for his safety) impossible, and he bent his back although forbidden to do so. These are obvious acts of contributory negligence, and of some magnitude. I cannot see how the jury's apportionment of 60% is in any way more perverse than the judge's apportionment of 90% in Podrebersek v Australian Iron & Steel Pty Ltd ... nor indeed of Brownie AJA's apportionment of 20% in this case.
I would dismiss the appeal with costs."
The appeal to this Court
[57] The only ground of appeal in this Court is that the Court of Appeal erred in substituting an assessment of 20% for contributory negligence for that of 60% by the jury.
[58] In this case a properly instructed jury did exactly what the apportionment legislation required them to do, to apportion negligence between the parties on a just and equitable basis [16] . It was not for the Court of Appeal to substitute its own opinion for that of the jury. Nor was it for the Court of Appeal to do so on the basis upon which the majority did, a basis neither pleaded, litigated, nor the subject of a ground of appeal. That basis was that the appellant failed to foresee, or even to turn its mind to the possibility that the respondent might disobey his instructions and modify the system of work to a method carrying a risk of injury.
[59] The instructions given to the respondent were given for the precise reason that their implementation would eliminate, or greatly reduce the risk of injury. The jury's verdict was, if anything, generous to the respondent in the circumstances of his flagrant disregard of the instructions which were given to him for his own protection. The conclusion of Meagher JA that the appeal should have been dismissed is, with one qualification, correct. No attention was paid to it in argument in this Court, but there was apparently a concession by the appellant in the Court of Appeal, that in entering judgment the trial judge did not make proper allowance for the deduction to be made from the damages in respect of workers' compensation received by the respondent. That matter leaves questions of the net amount for which judgment should be entered and of costs for the Court of Appeal still to determine.
[60] The apportionment of fault however was very much a matter for determination by the jury whose collective knowledge and experience of the workplace were unlikely to be inferior to those of judges. The different view of the majority of the Court of Appeal from the jury's view is probably indicative of too ready a judicial inclination to absolve people in the workplace from the duty that they have to look out for their own safety which will often depend more, or as much, upon their own prudence and compliance with directions, as upon any measures that a careful employer may introduce and seek to maintain. A jury is uniquely well qualified to decide, to use the language of Mason, Wilson and Dawson JJ in Braistina [17] "[w]hat is considered to be reasonable in the circumstances of the case [according to] current community standards ."
[61] We would allow the appeal with costs and order that the matter be remitted to the Court of Appeal to be dealt with in accordance with these reasons.