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: Kirby J)

Liftronic Pty Ltd
vUnver

Court:

Judges: Gleeson CJ
McHugh J
Gummow J

Kirby JCallinan 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:
Kirby J

[62] This appeal ^[18] follows a jury verdict in an action in which an injured worker sued his employer for damages. The claim was framed in negligence at common law. The employer contested liability. It pleaded contributory negligence. The jury found for the worker but upheld the defence of contributory negligence. They apportioned the worker's responsibility at 60% ^[19] .

[63] The worker appealed against the judgment that followed the jury's verdict. By majority, the Supreme Court of New South Wales (Court of Appeal) upheld the worker's appeal ^[20] . It set aside the jury's apportionment. It substituted its own apportionment that the worker was 20% responsible for the damage which he had suffered. From this judgment, the employer, by special leave, appeals to this Court.

The principles governing the Court of Appeal

[64] Before stating the facts in more detail, it is useful to collect a number of legal principles which affect the proper approach to the appeal. I hesitate to call these principles trite ^[21] . However, unless they are remembered, it is easy to fall into error:

1. The jury is the "constitutional tribunal" of fact-finding ^[22] . Partly for reasons of legal history, and partly for pragmatic reasons upholding the finality of jury verdicts, there is a general bias of appellate courts against disturbing such verdicts.

2. Where a trial is conducted before a jury in a civil action, there is an important distinction between the respective functions of the judge and the jury ^[23] . Following the creation of appellate courts, this distinction has been observed in appeals against judgments based on jury verdicts. Appellate judges are not authorised to disturb such judgments simply because they disagree with the verdict or regard the evidence called at the trial as preponderating against the verdict ^[24] . Absent any misdirection or misreception of evidence, or disobedience to a judicial direction on the law that might invalidate the verdict, the appellate court must assume that the jury acted lawfully and properly in reaching their verdict ^[25] . It must do so unless the verdict betokens "a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach" ^[26] . This stringent test has been expressed in various ways ^[27] . It may be called the rule of restraint.

3. Where a jury verdict necessarily involves elements of discretion, assessment or evaluation, an appellant, challenging the judgment based on it, faces a specially difficult task ^[28] . This is true of challenges to jury verdicts of general damages ^[29] as it is to those which apportion responsibility for contributory negligence. Where a judge is the trier of fact, reasons must ordinarily be provided to explain a judgment ^[30] . Such reasons may reveal error, inviting appellate correction. However, because a jury gives no reasons, an attempt to meet the stringent standard, and to overcome the rule of restraint, necessarily faces formidable obstacles ^[31] .

4. A particular reason why jury verdicts in cases involving apportionment of responsibility are not usually disturbed by appellate courts is that the applicable legal criterion is expressed in extremely broad terms. In the language of s10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), applicable to this case ^[32] , the decision-maker, judge or jury, must perform the apportionment according to "such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage" ^[33] . Obviously, this formulation affords the decision-maker a very wide discretion. The repository of the power provided by Parliament is the primary decision-maker, not the appellate court. The latter only secures powers of disturbance if the initial exercise of power has not conformed to law but has miscarried. It is of the nature of the power conferred on the primary decision-maker that it presents "a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds." ^[34]

5. Where a party appeals against a judgment giving effect to a jury's verdict, including one upon a question of apportionment for contributory negligence, there are certain settled principles controlling the approach which the appellate court must take ^[35] . Thus, the appellate court must assume that the jury took the reasonable view of the evidence most favourable to the party defending the verdict ^[36] . In determining the inferences to be derived from that verdict, an appellate court will pay regard to the way in which the parties presented their respective cases at trial. Where there is some evidence reasonably consistent with the verdict, although much that is not, it will be assumed that the jury preferred the evidence consistent with the verdict to that which was not. Similarly, where the verdict upholds a claim or defence that was propounded at trial, it will be assumed that the jury accepted the case presented and rejected the contrary case.

6. Parties are bound on appeal by the way in which their cases are litigated at trial ^[37] . However, the way a case is litigated is not discerned by simply looking at the pleadings or even the way counsel for a party opened or presented it or the judge expressed it in the judge's charge to the jury or in judicial reasons. Once a trial commences, it assumes its own dynamic. Within broadly stated pleadings, parties will often be permitted to lead evidence that shifts somewhat the postulated case from that expressed by the lawyers who plead and present it towards that which emerges from the actual evidence of the witnesses to the occurrences out of which the case arises.

The principles governing the High Court

[65] In addition to the foregoing principles, it is necessary for this Court to remind itself of the rules that govern its appellate authority to disturb a judgment entered in such a case:

1. Because this Court is discharging the constitutional function of deciding an appeal, relevantly from a Supreme Court of a State, the focus of its attention must be on whether error has been shown on the face of the judgment or in the reasons that support that judgment. Without a finding of error, this Court is not entitled to merely re-exercise the powers that belonged to the Court of Appeal.

2. The Court of Appeal had undoubted jurisdiction and power, in this case, to hear the appeal from the judgment of the District Court based on the jury's verdict ^[38] . Once its jurisdiction was engaged, it had a duty to determine the appeal in accordance with law. The rule of restraint does not, and could not, amount to an absolute rule forbidding the discharge of appellate functions or requiring that such functions always be exercised in one way. Because of the nature of the appeal to the Court of Appeal, that Court's functions necessarily involved a decision that required, on its part, judgment, evaluation and the weighing of competing arguments. So long as the Court of Appeal has shown itself aware of, and has applied, the correct principles, this Court may not disturb the outcome simply because its members would have reached a different result. "We must decide whether they were in error in being so satisfied. In reaching our conclusion we should ... give due weight to the views of ... the Court of Appeal ... [W]e should not proceed as though we were sitting in their places and they had never spoken." ^[39] To demand restraint in the disturbance of jury verdicts, but to exhibit none in the disturbance of the Court of Appeal's judgments, would be to misapply this Court's powers and to mistake its responsibilities. It would also be to exhibit selectivity in the application of a basic rule governing appellate intervention. ^[40]

3. Where, viewed in the totality of the evidence, it appears that a jury's verdict (or a judge's decision) in a matter of apportionment is unreasonable in the applicable sense ^[41] , this Court has occasionally stepped in, although an intermediate court had declined to do so. Such was the case in Wynbergen v Hoyts Corp Pty Ltd ^[42] , where inconsistent answers to certain questions by a jury were held to require correction. So it was, earlier, in Pennington v Norris ^[43] where this Court altered an apportionment of contributory negligence in a motor vehicle case, reducing that of 50%, fixed by the primary judge, to one of 20%, as seemed proper to this Court. In each of these cases, this Court was unanimous. In each, it acknowledged the rule of restraint. But restraint must be distinguished from paralysed inertia or repudiation of jurisdiction. The fact that this Court has repeatedly come to a conclusion that intervention is required, notwithstanding the rule of restraint, should prevent any unthinking application of that rule. The provision of appeal carries with it the obligation on the part of the appellate court, within its jurisdiction and powers, to perform its functions in accordance with law. Necessarily, this involves the possibility that, in the particular case, those with the appellate responsibility may conclude that the proper discharge of that responsibility requires an order upholding the appeal. The mere fact that this case was one of apportionment does not eliminate that responsibility.

4. Once the Court of Appeal decided that the jury's apportionment was unreasonable in the applicable sense, it was authorised by law ^[44] to set aside the judgment giving effect to that apportionment. It might then have ordered a retrial of the question of apportionment before a second jury. Alternatively, where the parties consented or where it was appropriate to avoid a multiplicity of trials, that Court was entitled to substitute its own "verdict" ^[45] . There was no contest that, in this case, substitution of a different apportionment was within the Court of Appeal's powers. There was no challenge to the decision that a second jury trial should be avoided by the Court of Appeal making its own orders. In making such orders, the Court of Appeal would not be bound by the suggestions which were put to the jury by counsel for the parties, recorded in the primary judge's charge to the jury ^[46] . However, the Court of Appeal's apportionment would have had to take into account (a) the case for the worker on negligence viewed in its entirety (which, it must be inferred from the verdict in his favour, the jury accepted); (b) the view of the evidence relevant to contributory negligence accepted by the Court of Appeal itself; and (c) the applicable principles of law governing employer liability and contributory negligence. Inevitably, an appellate court would be more knowledgeable than a jury concerning the law governing an employer's liability to its workers and about conduct that may amount to contributory negligence on the part of a worker. There is no point complaining (as the employer did) about the appellate court's substitution of its own decision for that of the jury, unless that complaint is based on a ground of appeal objecting to the Court of Appeal's failure to order a second jury trial. There is no such ground of appeal. Once the Court of Appeal found that it was authorised to intervene, and that it should substitute an apportionment for contributory negligence according to its own opinion, it was bound to exercise its own powers. Necessarily, when the Court of Appeal proceeded to act in this way it was entitled to take into account the applicable law of employer liability and contributory negligence. That knowledge would necessarily contribute to an appellate court's view of what was "just and equitable" in the particular case.

[66] In approaching the single ground of appeal that the appellant argued before this Court, it is essential, in my view, to have regard to all of the foregoing principles. Mechanical application of the rule of restraint expressed in this Court's decision in Podrebersek ^[47] (and elsewhere) is no substitute for legal analysis. The rule of restraint is one principle. But it is only one. And it is not, nor could it be, an absolute and unyielding rule.

The facts

[67] It is now necessary to state in more detail the facts relevant to the issue before this Court. The main facts were undisputed. The jury's verdict was that Liftronic Pty Ltd (the appellant) was liable in negligence to its worker, Mr Erol Unver (the respondent) and that his damages should be reduced by 60% having regard to the respondent's responsibility for his own injury.

[68] The respondent was injured on 20 February 1995 in the course of his employment with the appellant. He had been working for the appellant for four months. He was an experienced worker. For many years he had worked as a lift engineer and lift mechanic. At the time of the respondent's injuries, the appellant was a contractor for the installation of a new lift in a Sydney hospital. The installation required the positioning of a number of steel rails in the lift shaft, against which the new lift would ascend and descend. The rails were about 5 metres long. Each weighed 111.5 kilograms. They had been delivered to the ground floor of the construction site by crane. They had then been moved mechanically to the first floor of the building site in bundles of ten. They were there placed against a wall adjacent to the lift shaft, awaiting installation.

[69] On the Thursday before his injury, the respondent was detailed to clean and paint the rails in preparation for their use. This obliged him to remove a rail from the stack and to put it onto supporting timber beams. So positioned each rail was elevated about 2 inches (approximately 5 cm) from the floor. This involved using lifting hooks (a type of fixed bar with a hook at one end) to move each rail manually a few metres from the stack, cleaning and painting it and then using the hooks to remove the cleaned and painted rail. The rails were moved manually one at a time. The process of cleaning and painting each rail took between fifteen and twenty minutes. The respondent performed these tasks under the instruction of Mr Troy Carson, a charge hand or foreman who was his immediate superior. He was assigned one assistant. The lifting, cleaning and painting duties kept the respondent busy on the Thursday and Friday preceding his injury. On the day of the injury, a Monday, he was assisted by an apprentice, Mr Shane Dawes.

[70] According to Mr Dawes' evidence (which the jury must be assumed to have accepted), the respondent at some time during the morning said that he was "fed up" with the constant bending and wanted to lift the rails to a better height. He "went across and got a scaffold frame which is about a couple of foot [sic] off the ground". He "told me [that] we were going to be picking them up and putting them up on [the scaffold frame] so there [would be] no more bending involved in painting".

[71] Obviously, the system of work devised by Mr Carson subjected the respondent and his co-worker to manipulating and carrying the rails, although they were of very great weight. It was common ground that no mechanical device was provided for this purpose. Mr Dawes, who was called by the appellant, agreed that it was easier to paint the rails when they were in the slightly elevated position on top of the scaffold frame. However, he said "it wasn't easy when you were lifting them though". He stated that using the hooks provided by the employer was "very easy work" and that doing so kept the user's body straight. But he continued that "actually bending over and picking up rails is a very hard job". He had heard Mr Carson on one occasion tell the respondent "[y]ou are lifting incorrectly, bend your knees and don't bend your back".

[72] The respondent, in his case, called a consulting mechanical engineer (Mr Colin Simpson) who had extensive experience in the manual handling of heavy objects in industry. The appellant did not call expert evidence. Mr Simpson's testimony was therefore uncontradicted. It is appropriate to assume that the jury, acting reasonably, accepted at least the main parts of Mr Simpson's evidence. No other view would appear consistent with the jury's verdict in favour of the respondent on the contested issue of negligence.

[73] Mr Simpson stated that, for practical purposes, the respondent and his assistant, in lifting each rail, were each subjected to lifting 55 kilograms. That figure assumed that the weight of each rail was evenly distributed at all times. Commonsense suggests that this might not necessarily be so. Mr Simpson deposed that, according to standards or guidelines currently recommended in industry in Australia, the "absolute maximum" for safe lifting for any one person was 39 kilograms "under ideal conditions". Such conditions involved the assumption that the person engaged in the task "bends their knees, keeps a straight back, [and] there is no twisting or [other potentially dangerous] contortions". Subjecting a human being to such weights should be confined to "a once per eight hour basis". Accordingly, the system of work devised by the appellant for the respondent with one assistant was, according to Mr Simpson, "well and truly over [the absolute maximum] and there has to be a real risk of injury and specifically a back injury".

[74] The work on each rail involved its initial removal from the stack, lifting it onto a support, cleaning and painting it and then removing it from the support and placing it elsewhere. These tasks occupied a period of fifteen minutes or longer with each rail. In Mr Simpson's view, the series of manoeuvres took the weight of the rail over the amount to which the respondent's back should safely be subjected "as far as industry is concerned". Such safe weight was "something of the order of 35 kilograms". This amounted to a discounted absolute maximum weight. It was an estimate put forward upon the assumption that the person involved had been trained in lifting. Alternative methods for performing such work would have involved using more than two workers or providing a mechanical alternative which would certainly have been preferable. Mr Simpson stated that there were hundreds of variations of overhead lifting devices. These ranged from block and tackle gear to electrically or pneumatically operated chain blocks and mobile cranes. The latter were commonly found throughout industry and used for the kinds of task to which the respondent was assigned by the appellant. Such devices did not have to be fixtures of the building site in question. Some of them were capable of moving in and out of a building site. Presumably they could be hired. A view that, to impose the obligation of hiring or supplying a mechanical crane to assist the workers, including the respondent, in the manoeuvres described would be unduly expensive or inconvenient ^[48] betokens, in my opinion, a bygone attitude to the imposition of unreasonable weight-bearing tasks on Australian workers. Such a view is not, in my opinion, an attitude that should be attributed to the jury in the present case, reasonably evaluating the evidence at trial.

[75] Mr Simpson agreed that the use of a lifting hook by a worker, standing close to the rail, subjected the worker's lumbar spine to little stress and was a satisfactory way of reducing risk of back injury. Use of that method alone would certainly have obviated bending and crouching whilst positioning the rail for cleaning and painting, and thus impose far less risk of injury to the lower back. Nevertheless, the ultimate weight of the object was still unarguably (according to Mr Simpson) "very significant". Even in an ideal lifting situation, the actual weight to be borne was "approaching double the maximum recommended".

[76] In relation to the respondent's initiative to lift the rail onto a slightly elevated platform, Mr Simpson stated that the system of work instituted by the appellant would have involved the respondent in cleaning and painting the rails whilst continuously bending over them, virtually at floor level. This had the potential "for it to be very fatiguing of back muscles and causing backache and secondly, the positioning of the rail on the floor must be carried out by some means and if that's done manually down [on] the floor level then the risk, in my view, is even greater than it would be [on] the ... scaffold". In Mr Simpson's view, there was no practical difference in the strain to the lumbar spine involved in lifting the rail onto the timber beams and lifting it a greater height onto the scaffold. Even if the rails had been lifted by the respondent onto the timber beams (just off the floor surface) he would have had to manoeuvre them by turning them for the purpose of cleaning and painting them. This would have had him in a position of constant crouching or bending at an acute angle for most of his working day. Such posture would be interrupted only by the actions necessary to remove and replace a completed rail. Viewed in this way, according to Mr Simpson, the entire activity to which the respondent was assigned had a potential for back injury.

The issues litigated at trial

[77] With respect, it is not correct to suggest that the practical necessity for the respondent to seek out a reasonable system of work of his own devising was not litigated at the trial ^[49] . The pleadings included a general assertion that the appellant had "[f]ailed to devise, install and maintain a safe system for the lifting of steel rail" and had failed "to provide adequate assistance ... in the performance of [the respondent's] duties, in particular, the provision of a hoist or other such lifting device". Those allegations had to be understood in the conditions of work in which the respondent found himself and which were proved in evidence. Relevantly, those conditions were not disputed. The work involved the respondent being required to paint the rails, close to the floor surface, in a position of constant bending or crouching. Trained athletes can maintain that posture for long periods. The average worker - even an average lawyer, I suggest - cannot. Bending and crouching for lengthy periods is extremely taxing. In default of a better system being provided by an employer, it would naturally and reasonably cause a reasonable worker to endeavour to find a better way to perform his or her duties for the employer.

[78] That this was an aspect of the respondent's case at trial is clear from his own evidence. More importantly, perhaps, for present purposes, it was clearly understood as such by the appellant. Its counsel, in cross-examination, put directly to the respondent the explanation of what he had done:

"Q. And you said ... that you were tired of bending over and painting the rails whilst they were on the ground and that you went away and got the scaffold frame ... ?

A. ... [It] is virtually impossible to paint or clean those beams in those positions.

Q. Mr Unver ... it was your idea to use that scaffold?

A. What was the other way of doing it?"

[79] The expert, Mr Simpson, in answer to a question about the safety of the system of cleaning and painting devised by the appellant, specifically deposed to its potential to cause muscle fatigue and backache. In the appellant's case, the apprentice, Mr Dawes, affirmed how the respondent's search for a reasonable system of work had come about. Speaking of the respondent, he stated:

"A. He said he was fed up with bending over and painting the rails and he wanted to lift it [sic] up to a better height [so] that he didn't have to bend over".

[80] To suggest that the respondent's case before the jury did not include an assertion that the respondent was effectively constrained to devise a better system of work because of the failure of the employer to provide him with a mobile mechanical device and obliged him to work over long periods in an awkward, fatiguing, crouched or bended position, is not compatible with the transcript of the trial. The jury found negligence in the employer. That finding must be accepted as the premise from which the apportionment for contributory negligence is approached. The judge, in his directions to the jury, did not endorse the respective propositions advanced by counsel for the parties ^[50] . He did no more than to remind the jury of what counsel had said. What the jury then did may have involved a compromise between the submissions of the parties. But what the jury, acting reasonably, had to consider, on the basis of their finding of negligence, was the respective responsibility of the employer and the employee for the state of affairs that brought about the respondent's injury. Incontestably, that included not just the complaints about lifting and carrying the rails but about bending and crouching and the failure of the employer to provide an appropriate mechanical device for the entire activity. The prolonged bending and crouching were certainly part of the respondent's case as litigated.

Contributory negligence and contemporary employment obligations

[81] In considering the extent to which it was reasonably open to a jury in the present case to conclude as it did on the apportionment for contributory negligence, the Court of Appeal, for its part, was entitled to take into account the principles established by this Court governing the liability of employers for employees in work situations such as present in this case. The Court of Appeal was also entitled to test the verdict against the law that determines what constitutes contributory negligence on the part of a worker and what does not. Keeping such considerations in mind was important, not only for establishing the liability of the employer to the worker in negligence. It was also relevant in evaluating the extent to which it is just and equitable, where the primary liability was found, to hold that the worker shared in the responsibility for the damage and should thus have the verdict reduced proportionately.

[82] Obviously, the jury could have accepted parts and rejected parts of the evidence given at the trial. However, in judging those parts which the jury should be taken to have accepted, it was clearly appropriate for the Court of Appeal to consider the case which the respondent had put to the jury about the appellant's negligence. At the trial (although not thereafter) the appellant contested any negligence on its part. The primary judge summed up the respondent's case on negligence in these words ^[51] :

"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 ... [Y]ou will recall that [counsel for the appellant] did not attempt in any way to cross-examine [Mr Simpson] 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 not have a great deal of difficulty in answering question one [negligence of the appellant] 'yes'. And that the real issue so far as liability is concerned in this case, in the way in which the case has been conducted ... is whether the plaintiff has not taken sufficient care for his own safety."

[83] It is true that this direction represented a rather telescoped version of the respondent's case. So much is demonstrated by the extracts that I have quoted from the transcript. But a judge's charge to a jury responds to the way the judge perceives the final issues. It is a fair inference that the primary judge in this trial concluded that the appellant was not energetically pressing its formal defence that negligence on its part had not been proved. Quite often in cases such as this an employer will wish to terminate its workers' compensation liability by seeing a person such as the respondent recover a verdict - but a modest one. The primary judge appears to have inferred that this was the way that the appellant had conducted its case. This helps to explain his somewhat cursory treatment of the issue of negligence. It has loomed larger in this Court than in any earlier stage of the proceedings.

[84] No complaint was made, either before the Court of Appeal or before this Court, about the primary judge's instruction to the jury concerning contributory negligence or apportionment. The instruction was accurate so far as it went. It reminded the jury that it was a "very relevant consideration" that it was the appellant, as employer, that provided the place of work and the system of work and the work which the respondent was being called upon to perform ^[52] . The charge also asked the jury to consider "the extent to which you find each of them to have departed from the standard of care of the reasonable person and the cause and effect of the conduct of each party in what occurred" ^[53] .

[85] The last-mentioned instruction to the jury carried some dangers for the respondent that were not explored in the Court of Appeal and not raised in this Court either by notice of contention or cross appeal. The respondent owed no relevant legal duty of care to his employer ^[54] . The appellant, on the other hand, as employer, bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks ^[55] . This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated ^[56] . In this sense, explaining the standard of care expected of an employer in terms of the conduct of "the reasonable person " may have understated the very heavy duties that the law in Australia casts on an employer ^[57] . Such duties include affirmative attention to the issue of accident prevention. So much was held by this Court in McLean v Tedman ^[58] and re-affirmed in Bankstown Foundry Pty Ltd v Braistina ^[59] .

[86] Braistina is not irrelevant to the issue in this appeal ^[60] . That case involved a worker, a metal machinist, who had suffered a serious back injury in the course of drilling holes in, and manually stacking, heavy metal pipes (each weighing 60 pounds or 132 kilograms). His injury was sustained while he was lifting one of the pipes in a manner which, the employer claimed, was contrary to the method it had instructed the worker to use. But in that case, unlike the present, a mechanical hoist was available for use by the worker but was not often called on by employees. The finding by a judge of contributory negligence, assessed in that case at 10%, was not even challenged. The duty of accident prevention was held to be "unquestionably one of the modern responsibilities of an employer" ^[61] . It was underlined by all members of this Court ^[62] . Indeed, all were at pains to point out that similar ideas had been expressed by members of this Court for some time ^[63] . The decision is pertinent to this appeal because, without having a clear idea of what the law requires of an employer, including in discharging its duty of accident prevention, it is impossible to begin a reasonable approach to the ascertainment of the "just and equitable" apportionment of the employer's "share in the responsibility for the damage" ^[64] . The higher the employer's legal duty the less it would be "just and equitable" to burden the employee for established breaches which the employer was bound to prevent.

[87] When regard is had to the decisions of this Court on the subject of contributory negligence in an employment context, it is indisputable that reasonable care by an employer in Australia today requires "allowance to be made (in relation, eg, to a safe system of work) not just for inadvertence, misjudgment or inattention but also for neglect, carelessness and sometimes even foolishness or misconduct on the part of employees - including skilled and/or experienced employees" ^[65] . Indeed, the cases that support these propositions suggest an increasingly "forgiving" attitude by the courts toward errant employees in their approach as to what constitutes contributory negligence and the related apportionment of responsibility ^[66] .

[88] Inattention born of familiarity with a repetitious task, absorption in work functions and mistakes caused by fatigue or severe discomfort may not even constitute contributory negligence at all. Still less would they ordinarily warrant a most substantial reduction in the damages to which the employee is otherwise entitled for the consequences of the employer's negligence ^[67] . The same is true if the employee lacks appreciation of the danger to which the place or system of work exposes the employee ^[68] . Employers, acting reasonably, must provide a safe system of work for the average worker and "not a system which is safe only for persons of superior skill whose attention never wanders" ^[69] .

[89] Another consideration, not irrelevant in determining the existence and extent of contributory negligence where an employee has departed from a system of work established by the employer, is whether this was done defiantly, obdurately or stupidly for some personal purpose of the worker's own. Or whether it was done out of a misguided, but understandable, endeavour on the part of the worker to fulfil his or her employment duties in a reasonable way. The former category of case will indeed permit a conclusion that the employee has contributed, by his or her own negligence, to the damage suffered. It may then be perfectly "just and equitable" to reduce significantly the worker's recovery "having regard to the claimant's share in the responsibility for the damage". But, in the latter category of case, any such reduction, to be "just and equitable", will have to take into account the fact that the worker was exposed to the risk that caused the damage in the course of pursuing the employer's economic interests in which the risks of injury to workers are part of the employer's necessary costs ^[70] .

The decision of the Court of Appeal

[90] In the Court of Appeal, Meagher JA dissented. His Honour considered that the case was "entirely covered" ^[71] by the decision of this Court in Podrebersek. With every respect, contributory negligence, and apportionment, are always questions of fact ^[72] . The invocation of a decision of this Court, in an earlier case on different facts, could not relieve the Court of Appeal of the proper discharge of its functions by reference to the facts of this case.

[91] The second reason which Meagher JA assigned for his dissent was that he could not see how the jury's apportionment of 60% here was "in any way more perverse than the judges' apportionment of 90% in Podrebersek ... nor indeed of Brownie AJA's apportionment of 20% in this case" ^[73] . So far as the first stated apportionment (that in Podrebersek) is concerned, it is, again with respect, irrelevant. There are factual differences between the two cases. Appeals must be decided by reference to legal principle, not perceived factual similarities. So far as the second (the 20% favoured by the majority in the Court of Appeal) it is also irrelevant. Once the Court of Appeal concluded that it was entitled, and obliged, to set aside the jury's apportionment, it was required to order retrial of the issue or to determine its own apportionment. Complaining that it did so, after it had so decided, was therefore mistaken. Furthermore, referring to a criterion of "perversity" (as distinct from lack of reasonableness in the entirety of the evidence) was likely to mislead and to overstate the restraint upon appellate correction of a disclosed error ^[74] .

[92] The reasons for the majority in the Court of Appeal were given by Brownie AJA. His Honour (who is particularly experienced in this area of the law and practice) acknowledged that what the worker had done "constituted an unauthorised departure from the system [the employer] provided" ^[75] . However, he explained why, in his view, this departure was "plainly foreseeable" to the employer ^[76] . He did so in terms which I regard as entirely convincing. As I have demonstrated, his reasons addressed directly the aspect of the respondent's case which had been elicited in evidence ^[77] :

"[The worker] change[d] the system so as to reduce the discomfort and inconvenience of working for hours (with interruptions when moving the rails) in a crouched, kneeling or similar position. The jury's verdict means that in doing that, the [worker] 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 [employer] ought to have foreseen and guarded against, but in any event what the [worker] did was inadvertent on his part."

[93] Brownie AJA referred specifically to Podrebersek ^[78] . He acknowledged the rule of restraint to be observed by an appellate court before disturbing an apportionment for contributory negligence. But he concluded that intervention was required in the present case. He proceeded to propose the substitution of an apportionment of 20%. He said that this was "as high a percentage as might reasonably have been found" ^[79] . It follows from what I have said that, once the jury's verdict was found to have been unreasonable, and the decision was taken to substitute the Court of Appeal's own "verdict", the question was, properly, what (in that Court's view) the nature of the case required rather than what the jury or a judge might properly have found. But nothing turns on this.

Conclusion: The Court of Appeal was correct

[94] The conclusion of the majority in the Court of Appeal was therefore open to that Court, exercising its jurisdiction and powers. There is no indication of an incorrect approach. The requirement to observe the rule of restraint in cases of apportionment, but especially in an apportionment by a jury, was not ignored. The applicable principles were clearly in the minds of the majority.

[95] On the undisputed evidence adduced at the trial, the system of work in which the respondent was engaged by the appellant was unsafe, and seriously so. This was because of the sheer weight of the steel rails which the respondent and his co-worker were obliged to lift manually, work upon and then manually remove. The system was unsafe whichever method of work was used. Even if the respondent had adhered, without the slightest variation, to the method in which he was instructed by his superior, Mr Carson, he was still required to carry a weight repeatedly beyond what was reasonable. Moreover, he was obliged to spend most of his working day in a crouched and awkward position, painting and cleaning the rails that called forth his reasonable attempt to institute a better system of work. In default of a mechanical device, this led naturally to his attempt to elevate the rails in order to paint them.

[96] The respondent did not act defiantly or disobediently, for some private object of his own. Such a characterisation of his conduct is, with all respect, unfair, even absurd. What he did was done in a reasonable pursuit of his employer's interests ^[80] . Moreover, it was only done because of the failure of the employer to devise, institute and enforce an appropriate and reasonable system of work in the first place. At most, the respondent's lifting of the rails involved momentary inattention to risks in his lumbar spine. The respondent had hardly received much support in that regard from his employer. The method of work instituted by the appellant was primitive. The instrument provided to the respondent and his assistant was akin to that used in the building of the pyramids. It was not part of a system appropriate to a contemporary Australian workplace. Perfunctory instruction to the respondent to bend his knees when lifting could scarcely discharge the heavy legal responsibilities resting on the employer. The more serious the risks, the greater the need for effective prevention ^[81] . Those in doubt of these propositions should read again what this Court said in Braistina ^[82] .

[97] Against the background of the Court's repeated statements about employers' duties of care and of accident prevention, and the proper approach to finding and assessing contributory negligence in that context, it is little wonder that the majority of the Court of Appeal, viewing all of the facts of this case, came to the conclusion which they did. With all respect to those of a different view, and taking the evidence at trial as it stood most favourably to the appellant's case, the attribution to this worker of one and a half times the responsibility for his injury to his back and consequent damage as compared to that of the employer, strikes me as completely alien to the proper understanding of negligence and contributory negligence in the modern Australian employment setting. As Brennan and Deane JJ remarked at the close of their joint reasons in Braistina ^[83] :

"Contemporary decisions about what constitutes reasonable care on the part of an employer towards an employee in the running of a modern factory are in sharp conflict with what would have been considered reasonable care in a nineteenth century workshop and, for that matter, reflect more demanding standards than those of twenty or thirty years ago. While it is true that that has, in part, been the consequence of the elucidation and development of legal principle, it has, to a greater extent, reflected the impact, upon decisions of fact, of increased appreciation of the likely causes of injury to the human body, of the more general availability of the means and methods of avoiding such injury and of the contemporary tendency to reject the discounting of any real risk of injury to an employee in the assessment of what is reasonable in the pursuit by an employer of pecuniary profit."

[98] Where, considering an individual verdict (whether by a judge or a jury) an appellate court is convinced that the decision-maker has ignored or underestimated the foregoing considerations and so has erred, it is entitled to intervene. This is what the legal procedure of appeal is for. The appellate court may do so for error in finding that contributory negligence has been proved. It may do so for error in deciding upon an apportionment which is manifestly not just and reasonable having regard to a worker's responsibility for the damage. The latter is what the Court of Appeal concluded in this case.

[99] It has also been suggested that this conclusion was not open to the Court of Appeal because the respondent did not plead, litigate or make the subject of a ground of appeal, the possibility that he might "disobey his instructions and modify the system of work to a method carrying a risk of injury" ^[84] . With all respect, this is incorrect. The District Court of New South Wales is not a court of strict pleading. The appellant pleaded contributory negligence and the respondent, at trial, disputed this. That defence, in law, opens to argument the possibility that the employer will nonetheless be totally or mainly liable to the worker in circumstances of momentary inadvertence. The case books are full of such instances. I have referred to some of them. Specific pleading of that detail was not required. The issue was sufficiently raised once contributory negligence was contested. It was most certainly raised when, contributory negligence being found, a decision had to be reached about the extent to which it was "just and equitable" ^[85] to hold the respondent worker, and not the appellant employer, liable for the consequent damage. If in every case where an employer with an obviously defective system of work, could escape or minimise liability to its workers in negligence by what the appellant did here, the law of employers' liability in Australia would be substantially rewritten. Perhaps that is what is intended. But if so, it should be stated clearly and decades of this Court's authorities should be expressly overruled.

[100] Not only were the Court of Appeal majority entitled to act as they did, their decision was, in my opinion, fully justified and correct. The contrary decision can only be sustained on a hypothesis of employer duties, and employee obligations, which turns the clock back to the unlamented past. I will not join in a restoration of unreasonable burdens on workers where employers have exposed them to the kinds of risks that, in this case, had such a foreseeable consequence for injury to the respondent's lumbar spine.

Orders

[101] In the Court of Appeal, the appellant conceded that the primary judge's order could not stand. Upon this basis, the respondent was entitled, at least, to orders allowing the appeal, modifying the orders entered at trial and providing for the costs of the appeal at least on that issue. The order proposed by Meagher JA, that the appeal simply be dismissed with costs, could therefore not stand in this Court in light of the appellant's concession. With every respect, that order reinforces an impression that his Honour may not have addressed the detail of the issues in the case but simply responded to it in an automatic or reactive way. That way is not the way of the law. It involves an error that this Court should neither confirm nor repeat.

[102] On the substantive issues argued in this Court, the appeal should be dismissed with costs.