Maynard v Rover Mowers Ltd[2000] QCA 26

SUPREME COURT OF QUEENSLAND

1. THE COURT:  This is an appeal against dismissal in the Supreme Court of the appellant's claim for damages for personal injuries sustained in the course of his employment.

2. The appellant's case as pleaded and litigated was that on 27 March 1992 when working as a labourer on the paint line at the respondent's lawn mower factory he injured his back whilst lifting mower parts. His activity was pleaded as requiring "bending and twisting between two poles which supported the assembly line".

3. The appellant's evidence was that he had removed eight or nine large mower discs from the paint line with his right hand, transferring each consecutively into his left hand. Having collected all the discs, whilst in a bent-over position, he twisted and swerved to avoid colliding with a yellow post which supported the chain line. He then experienced severe pain in his thoracic spine, dropped the discs and staggered to a wall.

4. The learned trial judge, whilst accepting that the appellant experienced an episode of back pain on the afternoon in question whilst unloading discs from the paint jig, rejected the allegation that the episode occurred whilst he was twisting to avoid one of the yellow posts.

5. The learned trial judge gave detailed reasons for rejecting the appellant's evidence as to the manner in which he had sustained his injury. The evidence showed erroneous reconstructions by the appellant of the circumstances surrounding the incident. He had also made a statement five days after the alleged event that he was not sure how his injury had occurred, and that it might have been caused by collecting discs from the paint jig, or from digging fence post holes. Her Honour concluded that the appellant had reconstructed both the work system and his part in it without any clear recollection, and that in particular he had reconstructed the allegation on which he now relied.

6. The appellant claimed in his evidence that the paint line moved at a speed of between three kilometres and five kilometres per hour. That speed was of considerable significance to his case, because he claimed that the line was going at a speed that deprived him of the opportunity to remove the discs in small numbers and place them in a waist high trolley. It was the alleged need to move very quickly which he said brought him into near collision with the yellow post so that he had to twist in an awkward fashion. Her Honour found that the speed at which the line was set was considerably less than that estimated by the appellant. The speed of the line was observed at a demonstration of which a video was taken by Mr McDonald (an expert called on behalf of the appellant) who attended the premises of the respondent in the course of a normal working day, accompanied by the appellant. He estimated that over a period of 10 to 15 seconds the line would move a matter of a yard or two.

7. The appellant's initial instructions, both to his solicitors and to the experts who were asked to consider the safety aspects of his so doing, were that he had collected 12 discs each of 1.8 kilograms on the occasion in question.  When he gave evidence however he said that he had removed eight or nine.  This made a critical difference to the view of his expert witnesses in relation to the safety of permitting an employee to carry the total weight involved.  The evidence of the occupational medicine expert, Dr Low, was not of assistance to the court because it was premised upon facts that were shown to be incorrect.  His opinion was based upon the appellant taking off "nine or so discs from the jig", putting them into one hand, bending over and avoiding an encounter with the yellow post.  He was strongly influenced by the speed of the conveyor belt which he had accepted at three to five kilometres per hour or fifty to eighty-three metres per minute, which was some 30 to 40 times faster than the evidence suggests it to have been.  On those assumptions he had thought that such activity would be hazardous.  On the assumption of a slower moving line, he agreed that the positioning of the yellow posts would not come into play as a hazard for an unloader.

8. The other expert, Mr McDonald, was instructed that the appellant had removed 12 discs weighing a total of 21 kilograms which, upon various occupational health guides, he regarded as undesirable.  Upon the evidence actually given (eight or nine discs weighing 14.4 kilograms in total) he would not expect a 40 year old male of average fitness and strength to be injured by a lift of that magnitude.

9. The learned trial judge concluded that the system of work for unloading the discs which was in place at the respondent's premises in March 1992, which the unloaders were expected to follow, was safe. Her Honour also, whilst accepting that the appellant experienced a painful episode in his back while carrying out the task of unloading, was not persuaded that this involved twisting to avoid a pole.

10. The learned trial judge did not expressly accept the appellant's evidence that he had removed eight or nine discs and was holding them in his left hand at the relevant time. There is some discussion, apparently on a hypothetical basis, of the safety aspects in the event that a worker had collected so many discs before repositioning them into a mobile trolley.  The usual system followed by an unloader was to unload three or four at a time.  Mr Roden, whom the learned trial judge described as a conscientious employee and a careful witness and whose evidence was accepted, said that he had never seen anyone, including the appellant, take nine discs off the hooks before putting them on a trolley.  Neither had Mr Naylor or anyone else who would have been concerned or responsible for the safe conduct of the work seen the appellant or anyone else do so.

11. Her Honour rejected the contention, based on McLean v Tedman^[1] that the respondent had unreasonably failed to maintain and enforce its system.

12. Some reliance was placed by Mr Di Carlo, counsel for the appellant, upon her Honour's finding that "even had he seen him, Mr Roden would not have prevented the plaintiff unloading in this fashion since he was aware of the weight of the discs and did not consider that to do so gave rise to a safety issue". This hypothetical concession on Mr Roden's part does not help to establish that the appellant acted outside the usual system to an extent suggestive of failure by the employer adequately to police its own system. Although one particular of negligence alleges condonation of employees, including the appellant, indulging in unsafe methods of lifting, no case seems to have been presented that the appellant repeatedly did this or that the respondent condoned it. The observation of the learned trial judge that the appellant had utilised a "somewhat different method of loading discs" on the occasion in question, and "probably on other occasions" does not in my view afford a sufficient foundation for substituted findings on this issue.

13. The next issue raised on appeal is the claim that there should have been a finding of negligence (or breach of statutory duty) based upon the limited facts actually found by the learned trial judge, namely that the appellant did experience back pain while unloading discs on the day in question. There are a number of answers to this submission, the first of which is that such a case was not pleaded or litigated. The case that appears to have been litigated was one of a need to dodge a yellow post in circumstances where the speed of the assembly line created a foreseeable risk which the respondent employer ought to have avoided. Secondly, negligence on the part of the respondent is not established on the findings which the learned trial judge was prepared to make.

14. It was submitted however that the appellant, who is shown to have suffered an injury in the course of his employment at his workplace, is on the findings of the learned trial judge entitled to damages for breach on the part of his employer of statutory duty under s 9 of the Workplace Health and Safety Act 1989.  At the material time s 9(1) stated:

"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".

15. Different views have been expressed as to whether civil liability is created by a breach of that section, Rogers v Brambles Australia Ltd^[2] suggesting that a cause of action is created, and Castle v Weeks^[3] suggesting that there may be some doubt about this.  The controversy has been recently resolved by Schiliro v Peppercorn Child Care Centres Pty Ltd^[4] in favour of the view that s 9 by implication creates a civil cause of action.  It would seem that if the evidence would otherwise establish a breach by the employer, the onus would be on the employer to show that it was not practicable in the circumstances to have ensured the health and safety of the plaintiff.

16. In Castle v Weeks, similarly to the present case, the learned primary judge did not accept the version of events upon which the plaintiff's case was based.  It was accepted that the plaintiff had slipped while attempting to deposit refuse into a wheelie bin in the front yard of the premises at which she worked.  The evidence did not permit a finding as to how she slipped.  Among other possibilities her bad leg may simply have given way.  As the cause was unknown, it would be impossible to nominate anything that the employer could have done to eliminate the unknown cause.  In those circumstances the court considered that no breach of s 9 had been established, notwithstanding that the plaintiff had suffered an injury at her workplace and that her employer had not prevented it.

17. In the present case Mr Di Carlo referred to a Code of Practice on "manual handling" issued by the Minister under s 34 of the Act. He submitted that that section "incorporates" the Code for the purposes of s 9 of the Act. As at the relevant date, 27 March 1992, s 34 conferred upon the Minister the right to approve and publish codes of practice "[f]or the purpose of providing practical guidance to … employers … or any other persons to whom duties of care may apply under this Act".^[5]  The purpose of such codes, as stated in s 34(1) is that of providing practical guidance.  Section 34(8) provides that "A person shall not be liable to any civil or criminal proceedings by reason only that the person has failed to observe any provision of an approved code of practice".  Where appropriate such a Code might be useful in demonstrating what could have been done or what was available to a reasonable employer to know in relation to particular work practices.  Like other standards or guides which do not have specific legal force, such as Australian Standards, they may be taken into account when determining whether a defendant has taken reasonable precautions.  Advisory codes or standards are however never conclusive of that issue.^[6]  The Code in question contains 61 pages and suggests a three stage approach through risk identification, risk assessment and risk control.  In relation to the first of these, it suggests analysis of workplace injury records, consultation with employees and observation or inspection of the work area.  Factors mentioned in risk assessment include working posture and position and weights and forces and the statement that "manual handling should be performed in a balanced and comfortable posture".  It also advises that "some evidence shows that the risk of back injury increases significantly with objects above the range of 16-20 kilograms, therefore, upon the standing position, it is advisable to keep the load below or within this range".

18. It is now submitted on behalf of the appellant that he was never sufficiently instructed in the art of manual handling, especially in relation to distance from the body. There was however evidence from the appellant himself that he recalled attending safety training classes at the centre and that the respondent engaged outside experts to "explain to us the dangers and methods in lifting, handling, moving parts around the factory. The main object of conversations and the directions was to create a safer working place". He also recalls being told "at all times to bring stuff in close to the body when carrying it". He complained however that he was not told "anything about moving on a fast line or moving multiple discs bending and twisting at the same time".

19. The issue that was litigated, both in relation to negligence and breach of statutory duty, was the alleged risk in the combination of circumstances last mentioned.

20. Mr WDP Campbell for the respondent submitted that the present alternative argument based upon the risk of occurrence of injury while carrying a heavy load in a bent over position was not pleaded nor litigated. Assuming in favour of the appellant that this alternative case was sufficiently exposed as to be in issue, it seems to me that the evidence of Mr Roden, which was accepted by the learned trial judge, suggests that if he had examined the system which her Honour found to exist, it is unlikely that he would have identified a risk. So far as any breach of the advisory code is concerned, the evidence from Mr McDonald, the safety expert called on behalf of the appellant, suggests that if he had examined the system he would not have identified a risk requiring a change in the system of work. In my view the appellant failed to prove that his injury was caused by such a factor or that the respondent exposed him to such a risk of injury.

21. The evidence does not require a finding that any act or omission of the respondent caused the appellant's injury, and the learned trial judge did not err in failing to make such a finding.

22. If the respondent were held to have caused this injury by failing to ensure the appellant's safety at work, the evidence would support a conclusion that it was not practicable for the employer to have avoided the deterioration that took place in the appellant's back on 27 March 1992. The appellant's description of his own actions on that day was accurately referred to during the appeal as "idiosyncratic". I am unable to see any error in the learned trial judge's dismissal of his claims in both negligence and breach of statutory duty.

23. The appeal should be dismissed with costs.