Liftronic Pty Ltd v Unver

[2001] HCA 24
(2001) 75 ALJR 867
[2001] Aust Torts Reports 81-604
(2001) 179 ALR 321

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(Judgment by: McHugh J)

Liftronic Pty Ltd
vUnver

Court:

Judges: Gleeson CJ

McHugh JGummow J
Kirby J
Callinan J

Legislative References:
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) - s 10(1)

Hearing date:
Judgment date: 3 May 2001

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Judgment by:
McHugh J

[5] The issue in this appeal is whether the Court of Appeal of New South Wales (Mason P and Brownie AJA, Meagher JA dissenting) erred in setting aside a jury's finding that the plaintiff was 60 percent responsible for the damage that he suffered as the result of his and his employer's negligence. The majority held that 20 percent was "as high a percentage as might reasonably have been found". In my opinion, the Court of Appeal erred in setting aside the jury's finding. On the way that the case was conducted - and the law seems to have been misunderstood and misapplied by all parties at the trial - the jury's finding of 60 percent responsibility was reasonable.

The plaintiff's case

[6] On Monday 20 February 1995, the plaintiff sustained injury to his back in the course of his employment with the defendant. The plaintiff was a lift mechanic. He had been "doing this job for 17 years" although he had been employed by the defendant only since October 1994. He was injured while working with another employee installing rails in an elevator shaft at the Sydney Eye Hospital. According to the plaintiff, their job was to lift steel rails, each 5 metres in length and weighing approximately 111.5 kilograms, from the floor onto a shelf and clean and paint them. When a rail had been cleaned and painted, they had to lift it "and put it aside somewhere else". Painting and cleaning a rail took about 15 to 20 minutes.

[7] The plaintiff testified that this work had commenced on the previous Thursday when a charge hand had directed him to clean and paint the rails. He said that he was given no instructions as to how to carry out the job. Nor was he given any hooks or other equipment to assist in lifting the rails. He denied that he was told to keep his back straight when lifting and to bend from his knees.

[8] The plaintiff said that, at about 8.30am on the Monday morning, "I was again bending down and I tried to lift the railing. When I was doing that I felt a burning sensation." He said that he "bent down, picked it up, tried to lift, then I felt that burning sensation".

[9] Mr Colin Simpson, a consulting engineer, testified that authorities such as the National Health and Medical Research Council recommended that a person should not be asked to lift more than 39 kilograms. He said that on each lift the plaintiff and his fellow employee would be lifting about 55 kilograms each. Mr Simpson said that the 39 kilograms maximum weight assumes "ideal conditions on a once per eight hour basis and assumes that whoever does it, bends their knees, keeps a straight back, there is no twisting or any of those contortions that are known to be potentially dangerous". In his opinion, "in this instance the weight is well and truly over that and there has to be a real risk of injury and specifically a back injury". If the plaintiff had to lift the rails manually onto the scaffolding, the maximum weight that ought to have been lifted was 35 kilograms and that weight assumed that the worker "has been trained in lifting". Mr Simpson said that there were hundreds of mechanical lifting devices available to lift the rails and that, if manual labour had to be used, then eight people using hooks should have been used to lift each rail.

[10] On the plaintiff's case, therefore, the defendant had no system, gave its employees no instructions, and required them to lift weights that exposed them to a risk of injury that could have been avoided by using reasonably practicable alternatives. If the jury had accepted the case for the plaintiff, they could not reasonably have found him guilty of contributory negligence.

[11] The learned trial judge gave the jury a number of questions that they had to answer. The first question was, "Has the plaintiff proved he suffered injury as a result of the defendant's negligence?" In directing the jury on this question, his Honour said:

"In this case, the plaintiff's case in negligence is a fairly simple one. He says that to require or permit him to try to lift this rail ... in the way in which he did, exposed him to an unnecessary risk of injury and it was a foreseeable risk ... So he says the defendant was in breach of its duty to provide a safe system of work. The system that should have been employed the plaintiff says, was to use either a mechanical lifting device, a small crane of some sort, or alternatively, to use eight men, two on each of four tongs as a team, possibly with an extra man supervising."

[12] Later the judge said:

"It was said to you by [counsel for the plaintiff] and you might think with perhaps some justification, that [counsel for the defendant] did not spend a lot of time submitting to you that the defendant was not negligent."

[13] His Honour also said:

"The other part of the first question is whether the plaintiff suffered injury and as I understand the submissions and the approach of the defendant in this case, [counsel for the defendant] does not submit to you that the plaintiff was not injured. So again, it is entirely a matter for you to decide, but I suggest to you that you would have little difficulty in coming to the view on the evidence that the plaintiff in fact suffered injury as a result of his lifting this rail on the morning of 20 February 1995."

[14] The latter direction gave the jury no assistance on the issue of causation. It treated the first question as dealing with the issues of negligence and injury and assumed that, if negligence and injury were found, the first question must be answered in favour of the plaintiff. It omitted any discussion of the term "resulted" in question 1. In so far as the direction dealt with the plaintiff's case based on his evidence, it was harmless enough. But, as will appear, if the jury accepted the defendant's evidence, the direction was likely to mislead the jury on the issue of causation.

The defendant's case

[15] Mr Shane Dawes, an apprentice fitter and machiner who was working with the plaintiff at the time of the injury, gave a very different version of the employer's system and the circumstances leading to the plaintiff's injury. He said that the rails had come in bundles of ten, strapped together. Troy Carson, the charge hand, had told them to split the bundles, move the rails onto timbers and paint them. The timbers were two to three inches above the ground. Mr Carson had given each of them a lifting hook which went through a hole at each end of the rail and had instructed them how to carry out the work. Mr Dawes said that "[w]e were shown how to lift and where to do the work, we were shown pretty much how to do it." He said that on one occasion Mr Carson had told the plaintiff that he was "lifting incorrectly, bend your knees and don't bend your back".

[16] Mr Dawes said that on the Monday morning the plaintiff "said he was fed up with bending over and painting the rails and he wanted to lift it up to a better height that he didn't have to bend over". The plaintiff then got a scaffold frame that was about two feet high. He told Mr Dawes "we were going to be picking them up and putting them up on there so there was no more bending involved in painting". Mr Dawes said they "had to physically manhandle the rails to pick them up to put them on the scaffold". Asked the difference between using the hooks system and the method devised by the plaintiff, Mr Dawes said:

"[U]sing 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."

[17] Asked how long they had been using the "new system" before the plaintiff complained about back pain, Mr Dawes said, "Not very long at all, probably about five or ten minutes."

Alternative cases for the plaintiff

[18] The evidence of Mr Dawes, if accepted, rejected the whole basis of the plaintiff's case. But it also allowed the plaintiff to run two alternative cases, if he had wanted to do so. The first alternative was that the defendant's system required the plaintiff and Mr Dawes to crouch or bend while they were cleaning and painting the rails and that it was reasonably foreseeable that the plaintiff might abandon the system and adopt the system that he did. If the jury found that what the plaintiff had done was a reasonably foreseeable consequence of the defendant's system, they could also have found that the provision of lifting equipment and a sufficiently high platform would have avoided the injury and the risk of it occurring. But the plaintiff did not put this alternative case as a head of negligence.

[19] In determining what was a reasonable apportionment of responsibility for the damage suffered by the plaintiff, it would be erroneous, therefore, to act on the basis that the defendant should have foreseen that the plaintiff would abandon its system and introduce his own. That was never the plaintiff's case at the trial. As will appear, the majority of the Court of Appeal held that it was reasonably foreseeable that the plaintiff would in fact do that. In doing so, the majority erred. By doing so, they attributed to the defendant a degree of fault that was not litigated at the trial and which, if it had been litigated, could reasonably have been found in favour of the defendant.

[20] The second alternative case that Mr Dawes's evidence allowed the plaintiff to put to the jury was that the defendant had failed to enforce its own system. On the evidence of Mr Dawes, it was unlikely that the plaintiff could have succeeded on this alternative case. On that evidence, there could not have been more than one previous lift under the "new system". In effect, the jury would have been asked to find that the defendant should have continually supervised a mechanic of 17 years' experience to ensure that he did not abandon its system - after using it for two days - and substitute a system of his own. Moreover, given how quickly the injury occurred under the "new system", the plaintiff would have had a difficult problem on the issue of causation. To succeed on that issue, the jury would have had to find that constant supervision would have avoided his injury. Nevertheless, despite these difficulties, the learned trial judge left a version of this alternative case, although his charge hardly directed the jury to the issues that were involved in it. He merely said, "The plaintiff also says that it is part of the employer's duty to supervise and ensure that any system of work that is put in place is carried out by the employees." He said no more on the issue.

The directions of the trial judge

[21] After the jury had retired to consider its verdict, they asked for further directions on question 1. Given the evidence of Mr Dawes and that of Mr Simpson and the compressed nature of the directions, that was hardly surprising. On this occasion, the learned trial judge used Mr Dawes's evidence and the evidence of Mr Simpson to make another case of negligence against the defendant. He said:

"The way in which the plaintiff puts his case here is that he was required by whatever means, to lift a weight that was excessive. That is his case. He says it does not matter really whether you find that the hooks were available or not, because in any event the weight that was to be lifted when distributed between the two men who were to do the lift, was still excessive, and for that the plaintiff relies upon the evidence of Mr Simpson."

[22] Later, his Honour said:

"But you might think, having heard the evidence and particularly that of Mr Simpson, which is not contradicted, and you will recall that [counsel for the defendant] did not attempt in any way to cross-examine him so as to get him to retract what he said about safe lifting weights, so you can take it that the defendant accepts that what Mr Simpson said for that purpose can be accepted by you. You might think that you will have not a great deal of difficulty in answering question one 'yes'."

[23] The learned trial judge erred in giving these directions. It did matter whether the hooks were available or not, and the issues of negligence and causation that were involved were much more complex than these directions assumed. The issue of actionable negligence did not turn on whether the defendant's system was negligent in some abstract sense, divorced from the facts of the case as found by the jury. In so far as the plaintiff relied on an unsafe system of work, he had to prove not merely that the defendant's system was negligent but that that system had caused his injury. The issue of causation was an easy one for the plaintiff on his evidence. It was a complex and difficult one, as was the issue of negligence, if the jury accepted Mr Dawes's evidence.

[24] It is true that, on the unchallenged evidence of Mr Simpson, the defendant's system required the plaintiff to lift a weight that was at least 16 kilograms greater than the National Health and Medical Research Council standard. On that basis it was open to the jury to find that the defendant's system was defective. But they would not have been acting unreasonably if they had found that the defendant was not negligent in using its system. It was open to the jury to find that, despite Mr Simpson's evidence, only a small risk was involved in using, every 15 or 20 minutes, the hooks and a straight back to twice carry a rail two or three metres and lift it up and down two or three inches. It was open to the jury to find that the risk was so small that it was not unreasonable for the defendant not to use a small crane or a team of eight men to lift each rail. This was particularly so, since the work was not being done on the defendant's premises and would have required the expense and inconvenience of getting the crane to the Hospital. The jury might also have been sceptical as to whether the National Health and Medical Research Council standards were fully applicable in respect of a lift of two or three inches using hooks and a straight back. Mr Simpson's evidence had been based on the assumption that the plaintiff had to lift the rails manually onto a platform two feet high. When counsel for the plaintiff asked him about lifting the rail onto beams two or three inches above the ground, his evidence was far from clear and seemed to have assumed that manual lifting without hooks was involved. Asked "would you still subscribe that those two alternative methods [ie lifting equipment and eight men with tongs] would be much preferable?" he answered, "Most certainly."

[25] The judge's directions to the jury did not address any of the considerations that pointed against negligence. His Honour and counsel seemed to have proceeded on the erroneous assumption that, if there was a reasonably foreseeable risk of injury to the plaintiff that could have been avoided by using mechanical means, the defendant was necessarily negligent. But the issue in negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it. In Wyong Shire Council v Shirt ^[2] , Mason J pointed out:

"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."

[26] Assuming that the defendant was negligent in using its system, however, his Honour's directions overlook the fact that the plaintiff was not using the defendant's system when he was injured . He was using his own system, if the jury accepted the evidence of Mr Dawes. The "new system" involved the manual handling of the rails and bending of the back while picking up the rails. Whatever the faults the defendant's system had, it required the use of hooks, and their use avoided the necessity for bending the back while lifting. In addition, under the "new system" the height of the lift increased from two to three inches to two feet. According to the evidence of Mr Simpson, lowering the rail from the height of the platform to the floor involved a greater risk than lifting it to that height. The consequence of that was that the plaintiff was exposed to a higher risk of injury than that involved in the defendant's system and for a longer period. A causal connection between the defendant's system and the plaintiff's injury could exist only if the jury found that it was reasonably foreseeable that the plaintiff might abandon the defendant's system and adopt the kind of system that he did. But that case was never put.

[27] The above directions of the learned trial judge concerning the defendant's negligence were erroneous. At all events, they did not deal with the complex issues that arose if the plaintiff's evidence was rejected. However, neither counsel objected to the judge's summing up. And the issue of apportionment must be examined with that in mind. But the course of the trial and the summing up create difficulties because issues of responsibility in apportionment are closely tied with the issue of causation in negligence and with the issue of lack of care contributing to harm in contributory negligence ^[3] .

Apportioning responsibility

[28] S10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) then required the jury, if it found contributory negligence, to reduce the damages to "such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage" ^[4] . That required the jury to compare the culpability of the plaintiff and defendant in the sense of the "degree of departure from the standard of care of the reasonable man ^[5] ".

[29] In determining whether the jury's apportionment in the present case was unreasonable, one principle is basic. The issue must be examined on the basis that, so far as it was reasonably possible to do so, the jury found the least degree of fault on the part of the defendant and the maximum degree of fault on the part of the plaintiff. The apportionment must also be examined on the basis that the jury took that view of the evidence, favourable to the defendant, which is most consistent with their apportionment.

[30] In Zoukra v Lowenstern ^[6] , a case which this Court and others have cited with approval ^[7] , the Full Court of the Supreme Court of Victoria said:

" ... it is not known what view the jury took. The appeal must therefore proceed upon the basis that the jury took the most favourable view to the respondent which a reasonable jury could take upon the evidence. This court is not at liberty to form its own view upon the facts and substitute it for the view which might reasonably have been taken by the jury in respondent's favour. So far as the findings of negligence against each party are concerned, this depends upon the view taken by the jury as to the failure of each party to observe the required standard of care. This is essentially a jury question, and it is only where the court is able to say that on no possible view of the facts could negligence be found against a party by a reasonable jury that a finding on this issue will be interfered with upon appeal."

[31] Given the jury's finding on contributory negligence, it is clear that they rejected the plaintiff's primary case on negligence. He was not left to design his own system, as he maintained. So either the jury found that the defendant was negligent in not enforcing its system or that it was negligent simply because it did not provide lifting equipment. The strength of the trial judge's directions in his summing up and in his re-direction indicates that the jury probably found that the defendant was negligent because, although it provided hooks and instructed the plaintiff not to bend his back and to bend his knees, its system exposed the plaintiff to the risk of injury because lifting equipment was not provided.

[32] On the other hand, the finding of contributory negligence must be assessed on the basis that the plaintiff had abandoned the defendant's system, had invented his own system and, in defiance of express instructions, bent his back to lift the rail onto the platform.

[33] Upon these findings, it was open to the jury to find that it was just and equitable to reduce the plaintiff's damages by 60 percent. The jurors were entitled to take the view that, although the provision of lifting equipment and a higher platform would have eliminated the risk of injury and the plaintiff would not have suffered injury, the injury would not have occurred even if he had continued to use the defendant's system. That is, although the jury had found that the defendant was negligent in not using a mobile crane or similar device, the defendant's system while containing a theoretical risk of injury would probably not have caused the plaintiff's injury if he had followed the system. Giving powerful support to that conclusion was the fact that the plaintiff and Mr Dawes had used the system for two days without mishap. Yet it took only five or ten minutes for the "new system" to cause injury to the plaintiff. Moreover, Mr Dawes said that using the hooks was very easy work, that it was "not very hard at all because you're keeping your body straight". In contrast to the defendant's system, however, "actually bending over and picking up rails is a very hard job".

[34] In cross-examination, Mr Simpson agreed that providing a hook so that the worker can stand close to upright places little stress on the lumbar spine and is "a very satisfactory way ... of reducing the risk of injury to the lower back". He also agreed in a series of questions that, if the plaintiff did not have to bend or arch his back in any way when using the hooks, there would have been "far less strain on his lower back" with "far less risk of injury to lower back". Mr Simpson was asked:

"Q. And it's really, I mean the real thrust of your criticism of the work system, is it not, is the requiring of him to have to bend down with his hands and pick up a rail off the ground , that's a real critical aspect of the physical work he was required to perform?

A. That and the ultimate weight." (emphasis added)

[35] Mr Simpson's evidence in chief was primarily based on the assumption that the system employed by the defendant was that described in the plaintiff's evidence. He agreed in cross-examination that the system that Mr Dawes described carried with it far less risk of injury than what he had been "initially asked to assume" based on the plaintiff's account.

[36] The jury was therefore entitled to conclude that, although the defendant's system involved a risk of injury that could have been eliminated with a different system and that the plaintiff would not have been injured under such a system, the probability of injury under the defendant's system was small, much smaller than under the "new system". Moreover, defective though the defendant's system was, it was improbable that the plaintiff would have sustained his injury if he had continued to use it. Indeed, if the jury had been properly directed on the issues of reasonable response and causation in accordance with Shirt ^[8] and many other cases, it may not have found any negligence, once it rejected the plaintiff's evidence. But, however that may be, the jury was entitled to conclude that the plaintiff's lack of care for his own safety bore a greater share of the responsibility for his damage than the defendant's breach of duty in using the hooks system. While the defendant's negligence exposed the plaintiff to a risk of injury, that risk had never eventuated. In contrast, the plaintiff's "new system" not only exposed him and Mr Dawes to a greater risk of injury than the defendant's system but the risk quickly translated to injury. Most importantly, the defendant had specifically warned the plaintiff against doing the very thing that caused his injury. In these circumstances, it is impossible to conclude that the jury acted unreasonably in finding that it was just and equitable to reduce the damages recoverable by the plaintiff in respect of his injury by 60 percent. The jury was entitled to conclude that in the circumstances of the case the plaintiff's conduct in using a system that required the bending of his back - although he had been specifically warned against it when he had done it previously - was a greater departure from the standard of care for his safety than the defendant's departure from the standard of care required of an employer.

[37] The plaintiff sought to rely on the case of Bankstown Foundry Pty Ltd v Braistina ^[9] . Apart from the fact that it is a lifting case, the present case has nothing in common with Braistina. Braistina was a case where the injury occurred on the defendant's premises and where a hoist was available for the lifting, if needed. Two issues arose in Braistina. First, whether the defendant was negligent. Second, whether the majority judges in the Court of Appeal - who included myself - had erred in describing the content of the employer's duty. This Court unanimously held that the defendant was negligent in requiring the employee to lift pipes without directing him that this should be done only by using a hoist. The Court upheld the trial judge's finding that lifting and twisting were involved in the system and that it carried an inherent risk of injury. On that finding, the Court held that the trial judge was also correct in finding that the plaintiff should have been directed to use the hoist as the exclusive method of lifting the pipes. The Court also criticised the majority judges in the Court of Appeal saying that a trial judge should not approach the issue of negligence on the basis of some perceived principle that there was a heavy obligation on the part of the employer to protect the worker. Nor should the judge approach that issue on the basis that the standard of care for an employer "had moved close to the border of strict liability ^[10] ".

[38] Braistina has nothing to say concerning apportionment or contributory negligence. It emphasises that the employer's duty is to take reasonable care for the safety of its employees and that what is reasonable is a question of fact to be judged according to the standards of the time. Juries, with their knowledge of the working conditions in their communities, are probably in a better position than judges to determine whether an employer has breached the duty of reasonable care that it owes to an employee and whether an employee has taken reasonable care for his or her safety. At all events, there is no ground for supposing that judges - including appellate judges - are in a better position to decide these matters than juries are.

The reasons of the Court of Appeal

[39] In the Court of Appeal, Brownie AJA, giving the leading judgment for the majority judges, said "the assessment by the jury that the plaintiff should bear 60 per cent of the loss seems to me to have been perverse". The majority allowed the appeal and substituted "an assessment of 20 per cent". In concluding that the assessment of 60 percent was perverse, the majority took into account against the employer two factors upon which there was no express or implicit finding by the jury and upon which the plaintiff did not rely at the trial. Those factors were:

•

"If the system of work provided involved employees working in conditions of discomfort, it was plainly foreseeable that they might take steps to ameliorate those conditions , whilst otherwise working in accordance with the system." (emphasis added)

•

"The jury's verdict means that in doing that, the [plaintiff] failed to take sufficient care for his own safety, in relation to the lifting of the rails on to (and off) the scaffold frame, and doing that manually rather than with the lifting hooks. In my view this was something the [ defendant ] ought to have foreseen and guarded against ..." (emphasis added)

[40] On the evidence, as I have indicated, it would have been open to the plaintiff to make a case that the defendant should reasonably have foreseen these matters and that, given the available alternatives, its conduct was negligent in not reducing or eliminating the risks that arose from them. But they formed no part of the plaintiff's case against the defendant, no part of the finding of negligence against the defendant, no part of the relevant "fault" that is the basis of the s10 assessment. Moreover, if these matters had been left to the jury, the jury could reasonably have found for the defendant on each of them. Because that is so, the Court of Appeal erred in apportioning responsibility on a theory of the plaintiff's case and the defendant's fault that had never been litigated by the parties. It substituted its view of the facts, based on its view of the transcript and without reference to the respective cases of the parties at the trial.

[41] Indeed, their Honours went so far as to say "in any event what the [plaintiff] did was inadvertent on his part. That is, so far as the evidence shows, the [plaintiff] did not foresee or even turn his mind to the possibility that the modified system he adopted carried a risk of injury." This statement overlooked that the plaintiff defied the instruction not to bend his back although he had been warned against it when the charge hand saw him doing it. The statement also overlooked that the plaintiff abandoned lifting the rails by hooks - a method that kept his back straight. Instead, he introduced a "new system" involving manual lifting and lowering of the rails for two feet rather than two or three inches. Without hooks, the bending of his back while lifting and lowering was inevitable. Indeed he was "again bending down" when he tried to lift the rail and was injured even though he had been specifically warned against bending his back when he had done so while lifting the rail only two or three inches.

[42] It follows that the Court of Appeal erred in setting aside the jury's apportionment of the damages.

The conduct of the case

[43] In the present case, the trial judge put to the jury that counsel for the defendant had submitted that the reduction of the plaintiff's damages, by reason of his contributory negligence, should "be of the order of 75%". His Honour also put to the jury that counsel for the plaintiff had submitted that the jury should assess the reduction "as being much less of the order, possibly of 5 to 10%". Neither counsel objected to these directions. Thus, the parties conducted the case on the basis that, if contributory negligence was found, the jury could reduce the damages by a percentage of between 5 and 75 percent.

[44] It is an elementary rule of law that a party is bound by the conduct of his or her case ^[11] . As six Justices of this Court said in University of Wollongong v Metwally (No 2) ^[12] :

"Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."

[45] If there was no more to the case, the failure of counsel for the plaintiff to object to the 75 percent direction would itself have been sufficient to require the Court of Appeal to refuse to set aside the finding of 60 percent reduction of damages for contributory negligence. However, the defendant appears not to have relied on this ground in resisting the plaintiff's appeal in the Court of Appeal and did not rely on it in this Court. Despite the defendant's failure to rely on it, I mention it because it seems to me wrong in principle that a party can acquiesce in a jury making a particular finding and then appeal against a finding of the jury that is consistent with the party's acquiescence.

Order

[46] The appeal must be allowed. I agree with Gummow and Callinan JJ that the proceedings should be remitted to the Court of Appeal to determine the nett amount for which judgment should be entered and to deal with the question of costs in that Court.