SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read the reasons for judgment of Chesterman J.  I agree that the appellant failed to establish that her injury was caused by the respondents’ conduct, generally for the reasons given by Chesterman J.

2. As Chesterman J points out, s 9 of the Workplace Health and Safety Act 1989 cannot have application where the appellant has failed to establish her injury was caused by the respondents’ failure to ensure her health and safety at work.

3. It is therefore unnecessary to determine the issue raised by the respondent as to whether a breach of s 9 of the Workplace Health and Safety Act 1989 gives rise to a private cause of action.

4. I agree with the order proposed by Chesterman J.

5. CHESTERMAN J:  The respondents are brother and sister who engaged the services of the appellant to be a live-in companion, nurse and housekeeper for their elderly mother who had developed dementia.  The old lady lived in her own home at 17 Nairana Rest, Noosa Heads.  The appellant took up her position late in December, 1990.  On 7 March, 1992 she fell while attempting to deposit some household rubbish into a wheelie bin which had been left in the front yard adjacent to the driveway.  She commenced proceedings in the Supreme Court claiming damages for negligence and breach of the statutory duty which she alleged was imposed on the respondents by section 9 of the Workplace Health and Safety Act 1989.  The trial judge dismissed her claim.

6. The house at 17 Nairana Rest was a modest two storey structure.  It stood on ground above the level of the roadway.  Vehicular access to the house was provided by a concrete driveway which sloped upwards from Nairana Rest.  The driveway was 2.5 metres wide.  Its gradient near where the appellant fell was about fifteen degrees (from the horizontal).  To the left and right of the driveway, as one looked toward the house from the road, was the front yard which consisted of a grassed slope.  To the left was an area located in which was a circular concrete construction which formed the protective cover for a waterpipe.  A steel manhole lid fitted flush with the top.  The concrete cover was 1.16 metres from the nearest edge of the driveway.

7. On the day of the fall the male respondent had come to visit his mother. He observed the wheelie bin at the edge of the road where the ground flattened out. It was just off the driveway. The appellant claimed the bin had been in that position throughout the time she worked for the respondents. The male respondent moved it up the slope and left it on the concrete cover.

8. During the course of his stay the appellant went to drop some rubbish into the bin.

9. The ground between the driveway and the concrete cover sloped in two directions: from the driveway directly to the cover and in the direction from house to road. The first slope fell at an angle of twelve degrees. The second was twenty degrees.

10. The appellant’s initial description of her fall was (R15.50-16.18):

“I came from the house out through the side door and ... walked straight down the driveway.  I had my left leg on the driveway and I took a step towards the bin and the next thing I was on the driveway with my leg up under me, the garbage bin a little bit up behind me, flat on my back with my [right] leg up under me.

With which foot did you step out towards the bin? - My right foot.

Did it make contact with the ground? - I honestly cannot state that I made firm contact with the ground.  I cannot say I put my foot down and it was firm.  Just whatever happened, happened so quickly that as I put my foot down I was thrown forward and ended up with my leg under me and in severe pain.

Did you have at the time you fell any contact with the bin by your hand? - Yes, I had my hand on the lid.  The garbage bin fell over …”

11. Cross-examination of the appellant commenced just before the lunch adjournment. She was late to return after the break and, in her absence, the trial judge (R42) expressed himself to be puzzled “by precisely what the negligence is said to be ... and precisely how the accident is said to have occurred”. Counsel for the appellant sought leave to clarify the circumstances of the fall by adducing further evidence in chief. Leave was given. The appellant then explained (R43.36-44.25):

“... what happened that saw you fall in the way you described? - I slipped straight on to the concrete and my leg just buckled up under me and I came straight down on it.

Which foot ... slipped? - The right leg. 

Which way did it move, do you know?- Straight downhill towards the concrete ...

... As I stepped and it just slipped me forward.  The bin was ... down but back behind me.  Because I slipped forward on the slope, back on to the concrete, the concrete was what caused whatever was under me to push the leg up under me ... I just moved straight across and grabbed the bin lid ... I just came down the driveway and took a small step and got the lid of the bin and the next thing I slipped.  The bin was down and this was up under me and I came straight down on to the concrete with it under me, and that’s what smashed it up.

The bin was about a bit over a metre from the concrete; is that right? - ... No it was only - the step that I took would have had my left foot on the concrete here and my right foot about there.

... Are you saying about a foot? - About a foot, yes.

That’s where your right foot went, was it? - Yes.”

12. When the appellant referred to “concrete” in the first answers repeated in the preceding paragraph, she must surely have meant the concrete cover. When she spoke of her left foot being on the concrete when she fell she must be referring to the driveway surface.

13. The trial judge was not prepared to accept the appellant’s evidence “without reservation”. His Honour found that she deliberately misstated the severity of her injuries. His Honour doubted:

“... that she has a recollection of the precise sequence of events immediately preceding and during her fall.  She has no knowledge of what, if anything, it was on the ground which caused her to lose her footing.” (R380)

His Honour was of the opinion that the appellant had failed to show that the respondents had been negligent or in breach of any statutory duty owed to her.  He concluded (R396):

“The plaintiff has the added difficulty that the reasons for her fall are unknown.  She says she slipped but it is possible that her bad leg gave way or that, being preoccupied, the plaintiff lost her footing.  Consequently, even if there was a failure by the [respondents] to ensure the safety of the [appellant] by reference to the positioning of the bin, it has not been shown that any breach of duty was causative of the plaintiff’s injury.”

14. This part of the judgment was criticised in the appellant’s submissions. It was said that the trial judge had engaged in idle speculation and that there was no evidence:

1. that the appellant was not attending to the simple task in hand; or

2. that her knee might have given way. 

It should be pointed out that the appellant had undergone a total knee replacement in about January 1991 but claimed to have made a complete recovery and to have become fully mobile by March 1992. 

15. The trial judge cannot be criticised for finding that the appellant had not proved that her fall was caused by negligence or breach of duty on the part of the respondents. The essence of her case was that positioning the bin on the concrete cover, so that she was required to traverse a grassy slope to reach it, exposed the appellant to an unreasonable risk of foreseeable harm. The trial judge, in the passage I have quoted, was saying only that he was not satisfied that she fell because of the location of the bin or the nature of the ground which had to be crossed to approach it. The evidence amply justified such a conclusion. Indeed the two accounts the appellant gave of her fall are materially inconsistent.

16. The fall, as first described, occurred when the appellant took a step towards the bin with her right leg. Her left foot remained on the driveway and she fell onto the driveway with her right leg bent under her body. She could not say that her right foot had taken any weight when she stepped off the driveway. Nevertheless she claimed to have had her hand on the lid of the bin which was, at the closest, 1.16 metres or 3 feet 9 inches away.

The second description is that her right leg slipped downhill towards the concrete cover and she fell when her foot came in contact with the concrete.  She claimed also to have taken “a small step and got the lid of the bin and the next thing I slipped”.  To have reached the bin and to have taken a hold of the lid the appellant must have taken more than a small step off the driveway.  She must have taken a full weight-bearing step with her right foot to enable her to reach the bin.  She got there, on this version, and had taken hold of the lid before she slipped.  If this is so she must have successfully traversed the slope.  If, moreover, she fell in this fashion she could not have fallen “on the driveway with her right leg up under her”.

The appellant did not claim that she slipped on gravel or other loose material such as leaves on the grass.

17. The circumstances of the fall remain a puzzle because the appellant was unable to provide a satisfactory account of what happened or a coherent explanation of what caused her fall. The appellant was wearing stout, ankle-length boots with substantial indented rubber soles. Conditions were dry. The slope itself was not an unusual feature of suburban allotments. The appellant, herself, saw nothing dangerous in stepping from the driveway onto the grass to reach the bin. Nor did she notice anything unusual about the ground itself (R57.50, 58.15). The trial judge noted (R396):

“... that the [appellant] and her elderly charge regularly walked up and down the driveway and around the yard without harm or any apprehension of risk”.

It was argued that an inference should have been drawn that the appellant fell because of the nature of the terrain she had to cross.  The circumstances are not such as to compel such an inference.  The appellant unsuccessfully undertook the task of proving negligence by express evidence.

18. This conclusion is enough to dispose of the appeal as it was for the trial judge to reject the appellant’s claim. His Honour, however, dealt with the allegations of negligence and breach of statutory duty. These points were argued in full and it is appropriate to say something about them.

19. The trial judge cited Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 for the proposition that the respondents had a duty to take reasonable care to avoid exposing the appellant to unnecessary risk of injury.  The degree of care and foresight required varied with the circumstances.  His Honour also noted that the standard of care was “not a low one” (Bankstown Foundry v Braistina (1985-6) 160 CLR 301) and that, relying on McLean v Tedman (1984) 155 CLR 306, the respondent’s obligation was to “establish, maintain and enforce ... a safe system of work”.  His Honour then considered whether there was a foreseeable risk that the appellant might be injured by crossing the slope to reach the bin.  With some hesitation he concluded that such a risk was foreseeable and was not “far-fetched or fanciful”.

20. His Honour next turned to the enquiry directed by the well known passage from the judgment of Mason J in Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47-8, to determine whether there had been a departure from the duty of care called into being by the foreseeable risk.  His Honour said (R393):

“In my view a reasonable response would have been not to give any directions or impose requirements as to the handling and placement of the bin.  More specifically, a reasonable person would have thought that if the [appellant] wished to move the bin to a location more suitable to her she would do so and that in so doing she would not encounter any risk ... a reasonable person, if he or she had perceived a risk of injury from the positioning of the bin ... would have regarded the chance of its eventuating as slight.  Such a person would also have thought that if a person using the bin fell, the consequences would not be severe.  In other words, there would be no reasonable expectation that serious injury would result from a fall on a relatively gently sloping yard ... the alternative courses of action which could have been taken would have posed disadvantages of their own.  The risk, although real, was small and the circumstances were ‘such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it’ ... Even having regard to the [respondents’] position as employers, I do not accept that they failed to take reasonable care as a result of the placement of the bin on the water meter or by leaving it to the [appellant] to please herself about how she used or positioned the bin.”

21. I cannot detect any error in this analysis. Indeed it seems to me plainly right. It scarcely needs elaboration. The appellant was an intelligent, able-bodied woman. The risk in question was that posed by crossing a gently sloping grass bank for a distance of just over 1 metre. A riotous imagination may foresee anything and start at shadows but it seems to be entirely right to describe what risk there was to the appellant as such that a reasonable man, careful for his neighbour’s safety, might take no precaution in respect of it.

22. The appellant took particular issue with the trial judge’s assessment that:

1. the risk of a fall was slight, and the risk of serious injury in the event of a fall was minimal; and

2. alternative locations for the bin had disadvantages. 

23. In relation to the first point the appellant urged the Court to accept that Miletic v Capital Territory Health Commission (1995) 130 ALR 591, a decision of the High Court, precluded a conclusion that the respondents could reasonably ignore the risk of injury from falling on the grass slope.  Miletic, as far as I can see, is a case decided entirely on its own facts which were quite different from those at issue in this appeal. Mrs Miletic was a cleaner employed in a hospital who fell and was hurt when she tried to move a bed.  The castors on which it was meant to move smoothly had jammed.  By exerting sufficient force to overcome the bed’s resistance to movement Mrs Miletic was hurt.  The High Court, in overturning a decision of the Full Federal Court and entering a verdict for the plaintiff, expressed itself to be applying the principles set out in Shirt.  It is true that the application of those principles to the facts in Mrs Miletic’s case led to her success but that is because the High Court found, on the facts of her case, that there was a foreseeable risk, if a bed jammed, of serious harm which could not reasonably be ignored by a reasonably careful employer and that a relatively simple system of precautionary maintenance would have prevented the castors jamming.

24. The appellant’s submissions come down to an assertion that the High Court in Miletic decided that wherever there is a foreseeability of injury that is not far-fetched or fanciful there is necessarily a foreseeability of serious injury which will require some responsive action to remove the risk.  This is not what Mason J said in Shirt.  To the contrary his Honour said (146 CLR at 47):

“If [a reasonable man would have foreseen that his conduct involved risk of injury to the plaintiff] it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  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”

The High Court in Miletic did not criticise or qualify this expression of principle in any way.  Furthermore the result of and discussion in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 is against such a notion.

25. Moreover, Mason J appears to have given his approval to what Lord Reid had said in the Wagon Mound (No 2) [1967] 1 AC 617 at 642-3 that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it: see 146 CLR at 46.  This, of course, is a passage relied upon by the trial judge for his conclusion that the respondents were not in breach of duty in requiring the appellant to step on the grass bank.  In Phillis v Daly (1988) 15 NSWLR 65, an authority referred to by the trial judge, the plaintiff failed in her suit for damages against the occupier of premises who had placed rough logs on the ground as a barrier marking the end of a carpark.  There was a foreseeable risk that a visitor might step on or over a log on leaving the carpark and suffer an injury but “the chance of a visitor coming to grief in stepping on and over the logs was so slight as to require no precaution ...” per Samuels JA at 69.

Mahoney JA pointed out (at 74) that in deciding what should have been done to avoid injury from a foreseeable risk it was relevant to take into account the fact that the risk was ordinary and obvious as well as the magnitude of the risk and its degree of probability.

The trial judge approached the appellant’s case by reference to these very principles.  In my view the approach cannot be fairly criticised.

26. Nor is there any more substance in the appellant’s other criticism which is that alternative locations for the bin were also awkward.

27. The trial judge did not in fact find that the locations other than the concrete cover were of equal or greater difficulty in terms of access. His Honour found (at 396) that the appellant:

“... had the effective management of the household including matters such as the placement of the bin.  She was free to move the bin to a preferred location if she chose to do so.  She was an intelligent woman and ... physically fit in all respects.”

The male respondent had positioned the bin on the concrete cover for some reason not clearly established.  The trial judge rejected the appellant’s evidence as to the respondent’s reason for the move.  No doubt he thought it inappropriate that the bin should be left on the edge of the road for an extended period.  Most householders appear to share that opinion.  Few bins are left out from week to week.  However, if the appellant had thought that near the road was the most, or the only, appropriate place for the bin she could have put it back there.  Or she could have put it next to the house which is the location apparently adopted since her fall.  The trial judge did not find that the respondent’s choice of location did not show a lack of care because no better location was available.  The finding was that it was not unreasonable to put the bin where access to it required a step on the slope when the appellant could, if she wished, place the bin where she liked and could have moved it from the concrete cover without apparent danger.

28. The appellant also relied upon section 9 of the Workplace Health and Safety Act 1989, subsection 1 of which provides:

“An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act.”

29. It is apparent that section 9 will not assist the appellant when she has been unable to prove that her injury was caused by the respondents’ failure to ensure her health and safety at work.  The only failure relevantly alleged was requiring the appellant to step on the grass bank.

30. The respondent submitted, as it had before the trial judge, that section 9 does not give rise to a private cause of action by a person injured as a result of a breach of its terms. It has been frequently assumed, and in the Court of Appeal, that the section does confer a cause of action in cases where a plaintiff was injured in circumstances establishing breach of the statutory admonition: see for example Rogers v Brambles Australia Limited [1998] 1 Qd R 212 and St Vincent’s Hospital Toowoomba Ltd v Hardy (CA 7477/97, 6 May 1998); (1998) QCA 86  In the former the employer conceded that there was a statutory right of action.  Pincus JA thought the concession was correctly made. However the point has never been the subject of an authoritative pronouncement. 

31. The respondent relies upon the judgment of Dixon J in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478:

“... a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears.  The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.”

The provision in question was clause 31(b) of the regulations to the Scaffolding and Lifts Act 1912 (NSW) which prescribed that safety gear must be provided for all lifts except those on which no person travelled.

32. By contrast, in Smith v Macquarie Stevedoring Co Pty Ltd [1965] NSWR 1558, the statutory provision in question, section 33(1)(c)(i) of the Stevedoring Industry Act 1956 (Cth), was couched in general terms.

“A registered employer - shall ... ensure that, as far as practicable - stevedoring operations ... are ... safely and efficiently performed ...”

It was held not to confer a private right of action against the company which contravened the subsection.  Wallace J said (at 1566):

“... no higher or even different duty is imposed by the provision than obtained under the pre-existing general law ... Secondly, no ‘specific’ precaution for the safety of others is thereby imposed.

These factors seem to me to govern the decision we have to make.  It is true enough to say that in addition to the requirements of expedition and efficiency the safety of waterside workers and perhaps others is a general legislative objective but the generality of the provision and the absence of some enunciated specific precaution are to me much against the view that a civil cause of action emerges from an alleged breach of the provision.”

The similarity between the expressions in section 9 of the Queensland Act and the stevedoring legislation is marked.

33. Reference was also made to The Law of Torts by Fleming, 9th edition, pp. 140, 141 in which it is said:

“... there is really no justification for invoking any criminal statute in support of an accident claim unless the statute prescribes a fixed standard of conduct as a substitute for that of the reasonably prudent person, which ordinarily guides the decision of a judge and jury.  It is only when the very object of the legislation is to put beyond controversy whether the particular precaution is one which ought to be taken, that the doctrine of statutory negligence has any legitimate place. Thus it is easy enough, and quite proper, to infer an intention to create correlative private rights from the enactment of specific safety measures to be observed in the operation of industrial equipment or the layout of premises.  On the other hand, to give the same effect to a statute which ... ‘merely enjoins the end but not the means’ ... would make the offender an outright insurer and thereby impose a burden far in excess of the standard of reasonable care ...”

34. There seems to be considerable substance in the argument. To accept it would, however, alter the prevailing opinion of the operation of section 9.  Such an alteration may become necessary but should only occur when the point is necessary to the outcome.  Any opinion on the question in this appeal would be obiter dicta.  It is therefore preferable not to express it.

35. For the reasons I have endeavoured to explain the appeal should be dismissed with costs.

36. DOUGLAS J:  In this matter I agree with the reasons of Chesterman J that the appeal should be dismissed with costs.