Smith v National Foods Milk Ltd [2006] HCATrans 532 (29 September 2006)

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Smith v National Foods Milk Ltd [2006] HCATrans 532 (29 September 2006)

Last Updated: 18 October 2006

[2006] HCATrans 532

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H3 of 2006

B e t w e e n -

ROGER SMITH

Applicant

and

NATIONAL FOODS MILK LTD

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 29 SEPTEMBER 2006, AT 9.29 AM

Copyright in the High Court of Australia

MR J. RUSKIN, QC: May it please the Court, I appear with my learned friend, MR S.A. O’MEARA, for the applicant. (instructed by Phillips Taglieri)

MR K.E. READ: May it please the Court, I appear for the respondent. (instructed by Murdoch Clarke)

KIRBY J: Yes, Mr Ruskin.

MR RUSKIN: If the Court pleases, the point of importance in this case derives from what we contend was the erroneous application by the Full Court of the Shirt calculus to overturn the primary verdict. We say the application by the Court was flawed in three ways. First, it was applied in effect so as to absolve the respondent employer from its non-delegable duty to devise and implement a safe system of work. In that respect the Court will recall that except for the day of this accident the employer had provided a safe system of work characterised by three features: first, the truck was reversed flush to the loading bay; second, the content of the truck contained containers which were shrink-wrapped on pallets; third, the facility of a forklift was enabled to take the containers out of the truck.

On this day, those features were missing. The system that was safe was replaced by no system. On that day, in the first place, the truck was too low for the loading bay and was on sloping ground; two, the containers were loose and were jumbling towards the back door of the truck; and three, the forklift could not be accessed.

KIRBY J: The removal of the compressed packing, was that ever explained? I rather gather it was not.

MR RUSKIN: May I ask if you would say that again, your Honour?

KIRBY J: The removal of the compressed packing, how did that come about?

MR RUSKIN: We do not know.

KIRBY J: Unexplained?

MR RUSKIN: Unexplained. No evidence was called by the employer about these matters, and the fourth point I was going to make was that the supervisor, Mr Stranger, who was not called by the employer, was present when the problem was faced by the worker. So what the worker had to do, in effect, was then to devise his own system – and, as the Court knows, what he had to do was get himself on some kind of pallet on a forklift, put one foot on one part of the pallet, the other foot inside the truck and in this uneven way then twist, or rotate to the left, so that he had to make the movement that I am now showing and he had to do it repetitively.

HAYNE J: Fourteen boxes, was it not?

MR RUSKIN: Fourteen boxes. He did about nine. They were 6.5 to 7.5 kilograms.

HAYNE J: Half a slab weight.

MR RUSKIN: Yes, but it was not, as the court said, the same as taking them out in a factory situation like right in front of you. The danger was in the repetitive twisting or rotation and stretching with your arms out. That is what the ergonomist had said, Mr O’Sullivan, and, really, the evidence was very clear, and the Full Court accepted it, that this was foreseeably likely to give rise to injury. The Full Court found that as well at paragraph 25. The Full Court said this at the bottom of page 76 – they pronounced and were critical of this:

The magnitude of the risk and the likelihood of its occurrence were very small and the inconvenience of sending the trailer back would have been considerable. I agree that picking up a box and rotating the spine to place it on the pallet gives rise to a risk of injury, but most manual tasks [do] -

So there it was. There was a risk of injury and what the court said was, “We agree, you don’t have to do anything about it”. In other words, “You don’t provide any system, having regard to the fact that both the neurosurgeon called said that it was a risk activity and the ergonomist had said that it was in breach of the Code and dangerous and likely to give rise to injury.

KIRBY J: Would it not be open to inference that the normal, regular and safe system which the employer provided was the compressed palletisation and removal by the forklift and that for some unexplained reason this was just a freak compilation of the boxes and that that was something which without some complaint or intervention by the employee the employer could not really have anticipated or had a system for?

MR RUSKIN: The answer to that was that the supervisor was there when the worker was confronted by this problem. The law does require you to devise and implement a safe system. That is the duty of care and in that regard we refer the Court to Czatyrko and the way the Court analysed the matter there was to say in that case – and that was the case, the Court remembers, where the man turned back and the platform had been removed and he fell over. The Court said this – the duty is clear:

It was a question of creating a risk by failing to adopt a safe system of work.

Now, here, the employer should have devised a system, should have not allowed the worker to engage in what was a foreseeably likely cause of injury.

CALLINAN J: Mr Ruskin, I will tell you what strikes me as quite persuasive from your point of view, the answers to the interrogatories at page 51. I do not suggest it is decisive, but it is certainly relevant that a different system or a real system has now been devised which includes the use only of trucks that can back right up into the loading bay and also I would have thought it was quite useful for you that no instructions were given about the way of unloading and that the defendant was not aware of what the plaintiff was doing. None of them, alone, would be decisive but in combination they strike me, initially, as persuasive.

MR RUSKIN: We would respectfully agree with that. At the heart of it is that - - -

KIRBY J: Whilst Justice Callinan is being so nice to you, can I tell you the problem I have with your case and that is not on the issue of the breach of duty but on the issue of causation. You will recall that this is the matter that the respondent has relied on. The twisting which was the actual cause of the injury to your client occurred at the point that he was moving the boxes down and the suggestion of the respondent is that even if the old system had been in place that the applicant would have had to do the twisting and therefore would have been injured anyway. Now, at some stage you are going to have to deal with that, as far as I am concerned.

MR RUSKIN: Yes. May I deal with it now, and it is this - - -

KIRBY J: We try to be even in our assistance to both sides.

MR RUSKIN: Thank you very much, your Honour. We are grateful. The answer to it is that at the heart of the complaint of the applicant was that you injure yourself because your feet are on uneven surfaces and you are twisting to the left with your feet in a fixed position. That was the evidence of the ergonomist, Mr O’Sullivan. So you have three things, and I will take the Court very briefly to the Code.

The Full Court, with respect, erred by saying that there were 16 features of the Manual Handling Code, the majority of which were in favour of the employer. They were wrong, with respect. There were 18 features of the Code and nine were found to be in favour of the worker, that is, nine gave rise to the requirement to devise a risk assessment. That appears at pages 26 and 27 of the book. In his report the ergonomist made that clear.

KIRBY J: What is an ergonomist? This is some feature of personal injury claims that was not really in vogue when I was around.

MR RUSKIN: An ergonomist is a scientist whose expertise is in - - -

KIRBY J: What is the science that is involved?

MR RUSKIN: It is in the science of the body movement and the way in which the stresses are placed, particularly on the spine, in respect of movement and the codes of safety - - -

KIRBY J: But surely that would vary very significantly from one person to another.

MR RUSKIN: Except that it is known through research and through medical matters that certain stresses on the spine are more likely to give rise to injury than others.

KIRBY J: All right. What did he say?

MR RUSKIN: What we say is that whilst the Court of Appeal rather dismissed – the Full Court said most of these did not apply. With respect, they were wrong. Nine of them did. Nine of them, which is a very significant part, required there to be a risk assessment of what the worker was doing. That appears at page 26. The nine were numbers 1, 2, 3, 4, 6, 10, 12 and 15. If the Court would be kind enough to look at that, that is where the causation was, that there was going to be prolonged bending, there was reaching, there was twisting of the back, there was awkward postures, there was awkward load because of the way you were doing it, you were in a confined space and you were working on uneven surfaces.

Now, if the system had been safe, you would not have had the injury which this man had. He had it because rapidly, they falling out of the truck, he had to do this rapidly and repetitively to the left. That is quite a different movement to the one which one would have obtained if you had taken the shrink wrap off. You would have been able to take them directly, move your feet and bend your body. The problem with this man was that he was trapped, his feet in a fixed position, awkwardly like that, and that was the evidence of the ergonomist which the learned primary judge, we say, was entitled to accept. That was summarised by the learned primary judge this way, particularly between paragraphs 70 and 80:

80 The plaintiff submits the defendant knew it was changing from a system where very little manual handling of the boxes would be required to one where all boxes would require such handling. The plaintiff further submits the defendant had a duty to - - -

KIRBY J: Could you just explain that to me. If you removed the shrink wrapping when you are taking the boxes out, then why would there be more? There is the same number of boxes.

MR RUSKIN: Yes, but very little manual handling. In other words, the removal of all the boxes out of the truck was done by the forklift, whereas in this system what he had to do was to take them down individually in a twisting motion down onto the pallet, then he had to take them from the pallet onto the ground. If it had been done properly, they would all have been taken out, they would have been placed on the loading bay, the shrink wrap removed and then one or two men would have, at their leisure, moving their feet, been able to place their body in a safe way, taken them and put them down but not rapidly.

KIRBY J: How long had that system been in place, the palletised shrink-wrapped boxes?

MR RUSKIN: That was the system that had obtained all the time and that was the evidence from two of the fellow workers. This was the only occasion - - -

KIRBY J: All the time is how long?

MR RUSKIN: I can only say a matter - - -

KIRBY J: Was it a matter of weeks or months?

MR RUSKIN: No. One inferred it was a matter of months or years, in other words, the fellow workers had never seen this situation obtain where you had the three catastrophes, namely, no flushing with the loading bay, no shrink wrapping and no ability to use the forklift. It is really a question of saying - - -

KIRBY J: So is your answer on the causation point that there would have been more twisting, more awkward twisting, twisting at two levels, not just one, and that that is the answer to the Full Court’s point on causation?

MR RUSKIN: It is indeed and it is the three features, the feet in the fixed position, because he could not move his feet. He had one foot on the pallet that was up near the truck door, one foot like this, as I am demonstrating, and he had to remain in that position. He had no even surface to stand on. He could not do it any other way, and the defendant did not call any evidence to suggest that, and in that trapped position he then had to twist and go down like that. In the evidence of the ergonomist and in the evidence of the neurosurgeon it was in that twisting trapped motion that caused the injury. That is what the neurosurgeon said.

So to say that he would have been at equal risk or at any risk in the old way was simply not, with respect, correct, and it really amounted to saying that it was the abandonment of the safe system that causally gave rise to the injury. It does not seem, we would respectfully submit, that the Full Court gave any weight to the basis upon which the trial judge found for the plaintiff, namely, that there was a safe system and that it was inexplicably not replaced and he was left with no system and if you have no system you are in breach.

KIRBY J: And the supervisor was present when the new need for a system presented.

MR RUSKIN: Yes, and he went away. He left and they did not call him.

KIRBY J: Yes, all right.

MR RUSKIN: So that is why we say that the court erred. Finally, we say this, that in applying the Shirt calculus the court said, we would respectfully say, without evidence that the risk was very small, that it was very inconvenient to bring the truck back. Well, there was no evidence of this. The fact that the risk was small was not in accordance with what either the ergonomist or Mr Hunn the neurosurgeon said and the question of whether it was inconvenient to bring a truck was something the defendant had a burden to talk about. It is not, we would respectfully say, appropriate for the Court to pronounce on this without evidence.

That was a very significant error, with respect, which gave rise to the court saying what it said. Perhaps it was caused by two things, first, because the court thought that in respect of the Manual Code which required risk assessment that the majority of the matters did not apply, as to which, as I have said, the court was wrong, with respect, and the second place, to try and make a direct analogy between what people who in factories taking a 5 to 6 kilogram box and putting it over there at their leisure as if it was the same as this man in his trapped position, and that is what led to the error. Those are the matters if the Court pleases.

KIRBY J: Yes, all right. Yes, Mr Read.

MR READ: If the Court please. It is our submission that there is no special leave point in this case. The Full Court considered this matter as a question of fact once it had established error in the reasoning of the learned trial judge. That was its duty under the Act to substitute its own verdict, having considered the facts. The error that was established is to be found at page 76 of the papers. That is the judgment of the learned Chief Justice who gave the only judgment of the Full Court and he criticised the way in which the learned trial judge had approached his task. He said he seemed to approach it in this way:

. the risk of injury was reasonably foreseeable;

. the appellant did nothing in response to that risk;

. therefore the appellant breached the duty of care –

With respect, that is essentially the way in which my learned friend is approaching it today when he says that, essentially, once there is a foreseeable risk there is a duty to take action in relation to it. That, of course, is not what Shirt says.

What the Full Court did, having very properly gone through the facts, then appears at paragraphs 23 and following where the Chief Justice considered what the hypothetical reasonable employer was faced with. Of course he has referred to the hypothetical reasonable employer because the employer himself represented by Mr Stranger had walked away. So, really, the hypothetical reasonable employer is Mr Stranger staying and this is what Mr Stranger would have seen. His Honour distils all of the facts, looks at all of the evidence and then down at paragraph 28 on page 77 – what occurs in the middle is discussion about what occurred. At paragraph 28 there is a correct application of Wyong v Shirt:

I cannot accept that the reasonable employer would have so responded to the foreseeable risk.

And, he says, for the reasons that he has discussed:

the magnitude of the risk was small and the likelihood of its occurrence remote.

Let me just deal with those two. First of all, “the magnitude of the risk was small”. This was a lightweight box of half the weight of a box of stubbies that this plaintiff was drinking every Friday and every Saturday night, getting it at the bottle shop, putting it in his car, et cetera. It is half that weight and it has none of the characteristic problems of glass or something of that sort. This is a small box containing plastic bottle tops that you get on the top of your bottle of Pura Milk in the morning. So, if it is dropped, it does not matter. The bottle tops do not distort. There is no shifting load within the box. It is quite stable.

KIRBY J: Yes, but when you are picking up some stubbies you do them in your own way, they are one box, you are doing it for your own purposes, you merely have to take it to a place that you know, whereas when you are doing a manoeuvre which involves twisting there is a greater risk of injury to the back – that is self-evident – and if it is repeated twisting and on an uneven surface, then the risk of injury is considerably enlarged.

MR READ: That is also self-evident, your Honour, and we do not argue against that.

KIRBY J: We are dealing with one of those cases where the law imposes an affirmative duty on the employer to institute and maintain a safe system of work.

MR READ: That is so, your Honour.

KIRBY J: And the supervisor was present when the new problem presented itself and did nothing to suggest or install a different system.

MR READ: All that could have been done, your Honour, was to send the truck back, and the Full Court considers that submission, that argument. It considers it and says, “Look, there are only 14 boxes. In any event, even if you had have been backed up to the loading bay, the top four or six of those 14 would have been manually handled because they were toppling out in the same way that they were toppling out on this occasion.” That was the evidence.

It was in a situation where while it is correct to say that this was a unique occurrence for these type of boxes, regularly much larger and heavier boxes were manually handled in exactly the same way that these boxes were. That was the experience of this employer with this employee. He had had regular practise of unloading more difficult boxes than these ones. So while I certainly do not cavil at all with what your Honour Justice Kirby has said about the affirmative duty and the risks, what we looked at when this truck arrived which did not back up for the first time, which did not back up to the loading bay, was, “Well, what do we do?”

Now, the hypothetical reasonable employer sits down and says, “What should we do?” The Full Court correctly reviewed all of the evidence and said, “Well, do nothing because of the factors that are set out at paragraph 28 of the Chief Justice’s reasons.”

HAYNE J: Does not that argument assume that the employer had no part in determining the way in which the load arrived at the loading dock?

MR READ: It does assume that, yes.

HAYNE J: Why should that assumption be made?

MR READ: There was no evidence that the employer had ordered a truck of a particular height or a trailer of a particular height.

HAYNE J: Exactly so. There was no evidence that the employer had directed that the load of materials for its use should arrive, as it previously had, shrink wrapped and palletised. Now, why? Was that not a matter for your side to go into evidence about and say, “We, National Foods, had no part in this; we just had to cop whatever the supplier gave us”?

MR READ: With respect, your Honour, there are two issues there. One is the differential height of the tray to the loading bay and the other is the palletising and shrink wrapping of the load. I was addressing the question of the differential height. This was the first occasion in which a differential height truck had arrived for these boxes.

HAYNE J: And was it the first time that a non-shrink wrapped, non-palletised load had arrived, so far as the evidence revealed?

MR READ: First of all, they are one and the same thing, the non-shrink wrapping and non-palletising, because the shrink wrap goes around the pallet, but the evidence is equivocal in relation to that. It is not definite one way or the other.

CALLINAN J: Mr Read, on page 20 the appellant’s expert says that:

Backing the trailer up to the loading dock will have prevented a lot of the problems affecting Mr Smith though there would still have been the potential for twisting and bending.

So the proper approach might be to regard that as a not very relevant matter.

MR READ: That is our position on the causation point but notwithstanding the alleged deficiencies in the system or the change in the system for these boxes - - -

CALLINAN J: He seems to stress an absence of appropriate training, but against that it is the applicant’s own acceptance that he was lifting featherweights. He gave evidence that it was featherweight.

MR READ: Yes, that it was fairly easy he also said and that how to do it was common sense.

HAYNE J: But all of this assumes, does it not, Mr Read, that the employer’s duty cuts in only at the moment that this truck backed up? The employer’s duty cut in much earlier than that.

MR READ: You are quite right, your Honour, that the employer’s duty cut in much earlier than that, but it does not assume that it cut in only at that time. Had it been known that the truck was arriving like this – and indeed trucks arrived like this with much bigger and more awkward boxes – the experience of this employer was of no injury, or there was no evidence of any experience of injury with those boxes. These were featherweight boxes. They were few in number. They were easy to handle with no difficulties.

It is our submission that in those circumstances the reasonable employer, although there was a foreseeable risk of injury, need not do anything. Equally, on the causation point, twisting would have occurred. It is significant in this case that the box which injured this man was a box directly in front of him and not one, as my learned friend was demonstrating, where he needed to lift his arms out to twist. It very clearly was demonstrated on the evidence that it was box nine which sat directly in front of his right knee.

The amount of movement necessary, albeit with the height differential of the feet, which was minimal, was just that which would have been required had the load arrived shrink wrapped and the shrink wrap was taken away and the box was then removed.

KIRBY J: I must admit that when I read the papers I was a bit inclined to be against you on the breach of duty issue but inclined to see the point of your argument on causation. Have you said everything you want to say about causation?

MR READ: Yes, I have, your Honour, and on breach of duty. Those are my submissions.

KIRBY J: Yes, thank you. Anything else from you, Mr Ruskin?

MR RUSKIN: Yes. I would refer the Court to one aspect of the ergonomist’s report and that is at page 21 of the application book where at the bottom he kind of summarises – the last sentence is really the summary of all the combinations of problems that gave rise. At line 50:

Based on analysis of the situation it was considered that Mr Smith was at a moderate to high risk of back injury in the light of the apparent rapid twisting and bending involved in the task –

and it was rapid because he had to get them out because they were tumbling –

with his feet fixed - - -

KIRBY J: You say they were tumbling but, as I understand it, it is suggested by the respondent that in fact the particular box was in position and was not tumbling at all.

MR RUSKIN: Yes, but nobody is able to say that it is the one box that caused the injury. It is the system whereby you are doing this rapidly and then the back goes when you do the - - -

CALLINAN J: It is a typical example, though, of an expert really talking about things that an expert should not be allowed to talk about. Wrapped up in that conclusion are a number of assumptions and we see it all the time: no close scrutiny of expert’s reports, opinions, assertions of fact, hearsay – hearsay often not given as oral evidence-in-chief as it should be by the witness himself. I do not know what we make of.....half the time.

MR RUSKIN: Except, your Honour, we can say that in this case, in the second phase, which is what he is talking about here, there was evidence that he was in exactly this trapped position that he said and he was rapidly twisting - - -

CALLINAN J: Perhaps you do not have to worry about it. If a defendant does not object to it and it all gets in, well, it gets in, but I really think that parties ought to be a bit more acute in what they let in and not let in.

MR RUSKIN: Indeed, in summary - - -

KIRBY J: Let the record show that Mr Ruskin was nodding an affirmation at that point.

MR RUSKIN: Which he will deny under oath, of course.

HAYNE J: You have just been verballed, Mr Ruskin. Do not resist it.

MR RUSKIN: Thank you, your Honours. So in essence we say this was a case where there was a duty to devise and implement a system. There was no system. That led to the injury and the court gave no weight to the fulfilment of the duty required as in Czatyrko.

KIRBY J: Yes, thank you. The Court will adjourn briefly to consider what it should do in this matter.

AT 10.01 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.03 AM:

KIRBY J: The trial judge found in favour of the applicant in the trial in the Supreme Court of Tasmania in which the applicant claimed damages for negligence and breach of statutory duty. The Full Court of the Supreme Court of Tasmania allowed an appeal and set aside the judgment in favour of the applicant. The applicant now seeks special leave to appeal to this Court.

No special leave point arises in the claim based on the alleged breach of statutory duty. However, the common law claim is more arguable. Essentially, the claim in negligence was for a defective system of work. The Full Court concluded that there was nothing that the employer ought to have done to prevent injury to the applicant, its employee. The applicant has made some good points concerning the availability, in the evidence at trial, of an alternative system of work for the subject operation of unloading boxes from a pallet. This involved restoration of a previous system of work that had been observed by the employer, namely the palletised compression of the boxes. However, even if that system had been restored and maintained, it would still have been necessary for the palletised boxes to be lifted from the pallet after they were taken off the truck.

The Full Court concluded that the applicant failed on breach of duty and also on causation. The latter conclusion was available to the Full Court. We are not convinced that the applicant would succeed in disturbing that conclusion, or the judgment that followed it, if special leave were granted. Accordingly, special leave is refused. The applicant must pay the respondent’s costs.

The Court will now adjourn to continue the special leave list on Level 19.

AT 10.05 AM THE MATTER WAS CONCLUDED