Duffy v Salvation Army (Vic) Property Trust [2013] VSCA 253 (20 September 2013)

Last Updated: 20 September 2013

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0102

MATHEW DUFFY	Applicant
	v
SALVATION ARMY (VICTORIA) PROPERTY TRUST	Respondent

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JUDGES	HANSEN and TATE JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	On the papers
DATE OF JUDGMENT	20 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 253
JUDGMENT APPEALED FROM	Duffy v Salvation Army (Victoria) Property Trust [2013] VCC 683 (Judge K L Bourke)

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NEGLIGENCE – Duty of care – Breach of duty – Common law employee – Safe system of work – Access to unloading area not restricted – Rush to catch heavy mirror falling from truck while being unloaded – Shoulder injury – Judge held incident could not have happened in manner alleged – Core features of incident not contradicted – Respondent chose not to call witnesses – Read v Nerey Nominees Pty Ltd [1979] VicRp 6; (1979) VR 47, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306, applied – Appeal allowed.

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Appearances:	Counsel	Solicitors
No Oral hearing. By consent the matter was decided having regard to the written materials filed by the parties.

HANSEN JA

TATE JA

BEACH AJA:

1 This is an application for an extension of time to lodge a Notice of Appeal against orders made in the County Court on 17 June 2013, by which the judge dismissed the claims of the applicant (‘Duffy’) against the respondent (the ‘Salvation Army’) for negligence and for breach of the duty owed by an occupier of premises under s 14B(3) of the Wrongs Act.[1] The Salvation Army consents to the grant of an extension of time. Both parties have also consented to have the substantive appeal heard on the papers, should the extension of time be granted.

2 For the reasons that follow, we will grant the application for an extension of time to appeal. We will also allow the appeal upholding Duffy’s claim that the Salvation Army breached the duty of care it owed to him. We will remit the matter to the County Court solely on the issue of damages, to be heard by a different judge.

The incident with the falling mirror

3 Duffy is a disability support pensioner, and a shearer by occupation, although he had been in receipt of benefits from Centrelink because of the sporadic nature of shearing work. He alleged that he received an injury to his left shoulder while working at premises occupied by the Salvation Army at 63 Macleod Street, Bairnsdale (‘the premises’) as part of the Work for the Dole Program (‘the program’) initiated by the Commonwealth of Australia and implemented through the Department of Workplace Relations and Centrelink. The Salvation Army accept that Duffy was a ‘worker’ pursuant to the program and had been directed to work at the premises, primarily compressing clothing into wool bales.

4 Duffy claims that at about noon on 8 March 2006 he rushed to catch a large mirror which detached from a vanity unit and fell while being unloaded from a truck, dislocating his left shoulder in the process. He alleged that a flat tray truck had reversed and was stationary on the concrete driveway at the Bailey Street entrance. The truck had its front poking out about two or three metres out of the roller door entrance onto Bailey Street. He said he was standing approximately five metres to the rear of the truck’s tray to the right side watching it being unloaded. There were about two or three people in the tray truck and about four people on the ground taking the weight of the unit. There were a couple of other people standing near him in the driveway. There was only a large bedroom vanity unit with mirror on the tray. He had not been asked to assist in unloading the unit and mirror and he was not initially involved in doing so.

5 Duffy said he noticed that one of the people unloading the unit had his hand underneath the unit and mirror and while trying to take its weight, lifted the mirror off its pivots. The large mirror started to fall instantly. He said in evidence that he then rushed in and caught the mirror with his left hand and stabilised the mirror with his right hand; he ‘just suddenly rushed in to stop the danger, and he just instantly got to the mirror and caught it and pulled it up before it hit the ground’. He said he put his left hand underneath the bottom of the mirror and grasped it with his left hand as hard as he could. He grabbed the mirror with his right hand on the right side and stabilised it as well as he could, slowly pulling it up and then slowly lowering to the ground. He explained that he caught the mirror about 18 inches or a metre before it hit the ground. The distance for the mirror to fall from the truck was about two metres.

6 The mirror was a long octagon bevelled mirror weighing about 100 kilograms and it may have been taller than Duffy who is 167 centimetres tall.

7 Duffy said that after the incident he stood up and ‘sort of grabbed my left shoulder a few times to see how it was, because it almost came off’. In evidence, he recalled that he thought he had gone to lunch after the incident then did a few more light jobs in the afternoon. He said he had constant pain after the incident, and had extreme trouble sleeping that night. He told Mr Morgan in the Salvation Army shop the next day that he had trouble sleeping at night because of the pain in his shoulder. Mr Morgan filled out a handwritten note of the incident which Duffy gave to Centrelink. He has not returned to the Salvation Army to work.

8 Duffy alleged that, as a result of the incident, he had suffered injury to the left shoulder, probably to the rotator cuff; severe and constant pain; depression; psychological injury and probable permanent disability.[2] Duffy attributed his inability to undertake paid employment to the ongoing effects of the shoulder injury, which included repeated dislocation of the shoulder joint and chronic sleeplessness.

9 Duffy founded his claim in negligence, alleging, in his particulars of negligence, that the Salvation Army[3] had failed to provide a safe system of work; had failed to provide him with any or any adequate or proper supervision; exposed him to risk of danger or injury which could have been avoided with reasonable care on the part of the Salvation Army; permitted and/or required him to work in a dangerous manner; failed to provide him with competent fellow employees; failed to provide any or any adequate equipment for the unloading of a vanity unit from the truck at the premises; required him to perform duties that were too onerous for him, and required him to prevent a large vanity unit mirror from falling to the ground during the course of its being unloaded from a truck. Duffy alleged also that the Salvation Army was in breach of its obligations under the regulations made pursuant to the Occupational Health and Safety Act 2005 and, further, that it had failed to comply with Part IIA of the Wrongs Act 1958 – in particular, s 14B(3) thereof, which sets out the content of the duty of care owed by an occupier of premises.

10 Duffy sought damages of $42,000,000 for pain and suffering, $4,000,000 for past loss of earnings, $100,000 for estimated future medical expenses, and $18,000,000 for future lost earnings as a successful shearer.[4]

11 Duffy, who represented himself at trial,[5] led evidence of his former sporting achievements and his significantly reduced capacity for both work and recreational activities following the accident. He also provided evidence, including medical reports, relating to the shoulder injury, and gave oral evidence about the various medical procedures he had undergone because of it. The trial judge noted that the medical evidence presented by Duffy was inconclusive as to the cause and extent of the injury in question.[6] During cross-examination, Duffy conceded that, despite having confirmed that he had been fit and healthy in body and mind prior to the accident, he had been a psychiatric patient, on and off, before the injury to his shoulder occurred.

12 He called as a witness Mr Fitzgerald, a volunteer at the premises. Fitzgerald gave evidence that on the day in question he was walking past something heavy being unloaded from a truck and stopped to look at what was happening. He saw a couple of guys trying to lift a heavy vanity unit off the truck and someone else was trying to hold a large mirror on top of it; overall he said there were about five or six people assisting with the unloading. The guys on the truck lost control of the mirror. The mirror came off and started to topple. Fitzgerald said that almost everyone froze except Duffy who took off and jumped and tried to support it. He saw Duffy put his left hand up high,[7] and his right hand was near his waist.[8] He supported the mirror for a short time, and then the other guys managed to grab the mirror as well, and it came down uneventfully. He said that if the mirror had fallen ‘they would all have got hammered by it’.[9] He said he remembered the incident because he thought the mirror was going to fall on him, and if it had fallen the shards would certainly have injured him. He did not know Duffy at the time but knew he was a volunteer.

13 Fitzgerald said the nose of the truck was off the premises and the truck was facing onto Macleod Street. In cross-examination he confirmed that the truck was parked by the side of the roller door on a diagonal and was not really on Bailey Street although he said he could not recall the exact location. He also said in cross-examination that he could not recall whether the mirror was actually put down on the ground or on the top of the truck. In a diagram he drew for the judge, Fitzgerald indicated that the truck was not in the premises and was on a diagonal at the rear of the premises near a roller door. He did not place the truck or the roller door in Bailey Street.

The approach of the Salvation Army

14 The Salvation Army accepted that it owed a duty of care to Duffy as he was an employee at common law.[10] It denied any negligence on its part and denied any breach of duty as an occupier. It also submitted that if negligence was found, then Duffy’s actions had constituted contributory negligence, in that he failed to have sufficient regard to his own safety when he reached to catch a large falling mirror in circumstances where he knew or ought to have known that doing so presented a risk of injury to himself, and failed to remove himself from a position of danger. It alleged that Duffy was solely responsible for any injuries he suffered by reason of his contributory negligence.[11]

15 Although it would appear from the evidence of both Duffy and Fitzgerald that there were about six or seven people who assisted in unloading the vanity unit, the Salvation Army called no witnesses to the incident. It called no viva voce evidence to contradict Duffy’s allegations as to how the incident occurred. Instead it chose to argue that the incident could not possibly have occurred as Duffy alleged. In cross-examination it was put to Duffy that if he had travelled five metres to catch the mirror, and the mirror was falling a distance of about two metres, he must have been travelling twice as fast as a piece of falling glass which weighed 100 kilograms. Duffy agreed. When it was suggested that the situation was absolutely impossible, he confirmed, ‘That’s exactly what happened’.

16 The Salvation Army’s defence consisted in reliance upon a variety of documents aimed at demonstrating that Duffy’s unfitness for work was related to his psychiatric difficulties, and that the restrictions on his work capacity from those difficulties were expected to be ongoing.

17 Exhibit 1 was a Centrelink medical certificate from a Dr Reddi dated 23 April 2007 stating that Duffy was unfit for work due to schizophrenia. Exhibit 2 was a Job Capacity Assessment Report for Centrelink on 16 May 2007 assessing Duffy as having a capacity of less than eight hours a week due to permanent and ongoing functional restrictions associated with medical conditions, impaired concentration and delusional thoughts such that no work was deemed suitable. Exhibit 3 was the diagram drawn by Mr Fitzgerald of the incident, mentioned above, placing the truck on a diagonal at the rear of the premises, not in the premises at all nor in Bailey Street. Exhibit 4 was an MRI of Duffy’s left shoulder from November 2009 concluding that there was ‘no rotator cuff disruption. Query old loose body post dislocation?’ Exhibit 5 was a psychiatric assessment of schizophrenic illness with a ‘query schizotypal disorder?’ Duffy maintained that the diagnosis was false. Exhibit 6 was a letter by Dr Iyyadurai, consultant psychiatrist at Bairnsdale Community Mental Health Service, in September 2005, maintaining a diagnosis of schizotypal disorder and schizophrenic illness and describing various delusions experienced by Duffy.[12]

18 The Salvation Army submitted, correctly, that the onus fell on Duffy to establish that there was some alternative system of work that was practicable and reasonable and would have prevented the injury.[13] It submitted there was no evidence adduced of an alternative system and ‘not one scintilla of evidence that seven men unloading the unit in the circumstances was inappropriate, negligent or in breach of duty.’[14] It submitted that the case had no legal merit and should be dismissed.

19 With respect to the issue of the quantum of damages, the Salvation Army argued that the amount claimed by Duffy was well in excess of what he could reasonably claim even if his case was proven. It submitted that there was no evidence of recurring dislocations or rotator cuff damage. It suggested that $17,500 to $25,000 was an appropriate figure for the pain and suffering, with nil for the past loss of earnings. Furthermore, it submitted that Duffy’s schizophrenia, as well as his knee problem (arising from a fall in 2010), would severely restrict his capacity for employment in any event and that his future economic loss should be determined in accordance with Victorian Stevedoring Pty Ltd v Farlow,[15] with $1,000 being the maximum for medical expenses.

The reasons of the trial judge

20 The trial judge found in favour of the Salvation Army. Her Honour acknowledged that the duty the Salvation Army owed to Duffy as an employee at common law was to take reasonable care to avoid exposing him to an unnecessary risk of injury, as recognised by the High Court in Czatyrko v Edith Cowan University:

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.^[16]

21 She also described the scope of the duty of an occupier under s 14B(3) of the Wrongs Act as being

to ensure, in so far as is reasonably practicable, that the premises are in a state that will, in so far as is reasonably practicable, protect those persons upon the premises, and what is required to ensure that the premises are in a fit state for that relevant purpose.^[17]

22 The judge dismissed Duffy’s claim essentially on the basis that she rejected his account of the incident. She attended a view of the premises. She held that the incident could not possibly have occurred in the manner described by Duffy. Her Honour’s reasons on this critical issue were as follows:

I do not accept the incident could have occurred in the manner [Duffy] described.

It is not possible for [Duffy] to have moved five metres from where he was standing at the rear of the tray in time to have caught the falling 100 kg mirror and then safely manoeuvre it to the ground.

I accept the submission by counsel for the [Salvation Army] that it is wholly improbable, wholly unlikely, and an impossibility for the incident to occur in the manner described by [Duffy].^[18]

23 Her Honour noted the significant differences between Duffy’s account of the incident and that of his witness, Mr Fitzgerald, in respect of: (1) the placement of the truck outside the rear of the premises and not in Bailey Street as described by Duffy; (2) the location of the roller door; (3) the position of Duffy’s hands on the mirror; and (4) how the mirror ultimately came to the ground. She considered that Fitzgerald’s evidence about the location of Duffy’s hands and how the mirror ultimately came to the ground was ‘inconsistent’ with Duffy’s evidence.[19]

24 Importantly, the judge found that ‘even if the incident occurred in the manner described by [Duffy], I am not satisfied there was any negligence on the part of the [Salvation Army] that was a cause of [Duffy’s] injury’.[20]

25 Her Honour acknowledged that Duffy had submitted that an alternative system of work would have been for the Salvation Army to have had some proper unloading procedure and a better system of communication, especially given that the unloading area was ‘just a hazardous area by all accounts’.[21] However, she rejected the view that the system of work adopted was not reasonable and concluded that Duffy had failed to discharge the onus on him to establish an alternative system that could have been reasonably imposed:

In my view, the provision by the [Salvation Army] of seven people to undertake this task was more than a reasonable system. It does not matter in these circumstances whether a truck or a ute with a hydraulic lifting system was used in the unloading.

I accept the submission by counsel for the [Salvation Army] that there is not one scintilla of evidence that seven men unloading a vanity unit in the circumstances was inappropriate, negligent, or in breach of duty. The duty of the defendant is to take reasonable care, not a duty to guarantee the safety of an employee.

There is no evidence of any failure to train or instruct [Duffy] being a cause of his injury. Unloading the truck was not [Duffy’s] job and he was not aware that he had been asked or instructed to assist in the unloading.

[Duffy] had been instructed as to how to do the jobs he was to undertake having been told by Mr Morgan and Mr Guyatt what he was required to do with clothing and electrical goods.

Further, [Duffy] has not established that an alternative system could have reasonably been imposed by the [Salvation Army].^[22]

26 The judge also rejected Duffy’s claim that there had been a breach of an occupier’s duty to take reasonable care for the safety of persons on the premises.[23]

27 Her Honour concluded that as she did not accept that the incident happened in the manner alleged by Duffy, or that there was any negligence or breach of duty, it was unnecessary for her to consider the issue of contributory negligence.

28 She also refrained from making any assessment of damages.

The application for an extension of time

29 By Summons filed on 10 July 2013, Duffy seeks an extension of time to file and serve his Notice of Appeal.

30 Her Honour dismissed Duffy’s claim on 17 June 2013. On 28 June 2013 the TAC, on behalf of the Salvation Army, received by facsimile from Duffy a document dated 28 June 2013 purporting to be a Notice of Appeal and purporting to identify a number of grounds of appeal. On 1 July 2013 the TAC received by facsimile from Duffy a further Notice of Appeal, dated 1 July 2013, containing grounds of appeal. On 10 July 2013, the TAC received by facsimile from Duffy a series of further documents purporting to be a summons and Notice of Proposed Contents of Appeal Book. On 12 July 2013 the TAC received by facsimile from Duffy a further summons seeking an extension of time to serve a Notice of Appeal. This was followed on 23 July 2013 by a further summons, seeking an extension of time to serve a Notice of Appeal, together with an affidavit from Duffy sworn on 23 July 2013, an appeal book index and an outline of submissions.

31 In accordance with r 64.03 of the Supreme Court (General Civil Procedure) Rules (‘the Rules of Court’) a Notice of Appeal must be served within 14 days. The same time limit is prescribed by s 74(2)(a) of the County Court Act 1958.

32 The difficulty faced by Duffy is that his first Notice of Appeal did not conform to the Rules of Court.

33 The document purporting to be a Notice of Appeal served by Duffy on 28 June 2013 was within time. However, it appears that the Registry of the Court of Appeal refused to accept that document for filing as it contained no identifiable grounds of appeal. The time to serve a Notice of Appeal elapsed while Duffy was preparing the second Notice of Appeal in proper form.

34 As mentioned above, the Salvation Army consented to an extension of time. The considerations which are relevant to the discretionary power of the Court to grant an extension of time include the length of the delay; the reasons for the delay; the prospects of success of the appeal if an extension of time is granted; and any prejudice suffered by the respondent to an application if time is extended.[24]

35 We consider that an extension of time ought be granted as the delay was short; the reasons for the delay centred upon the difficulty faced by Duffy as a self-represented litigant to prepare documents in compliance with the Rules of Court; the prospects of success on the appeal, at least in relation to liability, are substantial; and there is an absence of any prejudice to the Salvation Army.

36 We would grant Duffy an extension of time in which to seek leave to appeal.

The appeal

37 The grounds of appeal upon which Duffy relied centred largely on an attack on the judge’s conclusions that there was no negligence or breach of duty in the Salvation Army; that the system of work it had provided did not endanger lives. Duffy also challenged the finding that Fitzgerald’s evidence was inconsistent with his own evidence, as well as the observations made by the judge about his pre-injury earnings and his ongoing medical expenses.

38 The fundamental complaint which emerges from the grounds of appeal is that, in effect, the core features of the incident Duffy alleged were corroborated by Fitzgerald, and should have been accepted by the judge. Those core features included that Duffy, while employed by the Salvation Army and while standing on its premises, ran to catch a large falling mirror that had dislodged from a large vanity unit that was being unloaded and caught it in order to protect the people standing around the unloading bay, including Fitzgerald, and the other people who were engaged in the process of unloading the truck. As he put it in his Notice of Appeal:

Salvation Army soldier Rev. Dr. Geoffrey Fitzgerald, eyewitness of the incident testified under oath that I (Matthew Joseph Duffy) definitely caught the large falling vanity unit mirror by myself, appropriately protecting him and others from an absolutely extremely dangerous situation at the Bairnsdale Salvation Army store.

So this establishes that I ... was at the location the incident happened (Bairnsdale Salvation Army store).

So this establishes that I ... caught the falling large mirror and prevented several people from serious life threatening injuries or even deaths.

So this establishes the incident actually occurred.

39 These core features were not disturbed by those parts of the evidence of Fitzgerald which differed from that given by Duffy. In particular, the four elements of the evidence which the judge treated as significant did not dislodge those core features.

40 Fitzgerald admitted that he could not remember all the details of the location of the truck given the lapse of time since the incident. In response to the question, ‘Was any part of the truck inside the building?’, he said ‘Not the front of the truck’. When asked ‘But any part of it?’ He said ‘Well, – well the back of the truck, well the – that’s the roller door, by the time they park it could well be especially for the heavier units, smack bang where the roller door is’. The issue was further pursued. Fitzgerald was asked:

My question is and I thought your evidence was that no part of the truck was actually in the building when this happened?

Fitzgerald responded:

I’m not 100 per cent sure of that because all I was concerned about was this thing falling.

41 He was later asked:

Was any part of the truck in the building, the front or the back of the truck? ... I couldn’t tell you for sure.

Which part of the truck was nearest the building, the back or the front? ... The back and the front, the back.

42 In our opinion, the evidence of Fitzgerald was insufficiently exact to provide any confident benchmark about the location of the truck from which either an inference could be drawn that the truck was wholly outside of the premises, or that it was to be preferred to the evidence given by Duffy, or that it failed to corroborate or was in substance inconsistent with the evidence about the incident given by Duffy. This was most particularly so given that Fitzgerald attributed the unreliability of his recollection to the apprehension arising from his observation of the falling mirror. The diagram which her Honour asked Fitzgerald to make suffered from the same deficiencies.

43 Similar observations could be made about Fitzgerald’s evidence regarding the location of the roller drawer.

44 The question of exactly which of Duffy’s hands was on which side of the mirror when he grabbed it was the third issue her Honour considered to be relevant as a point of difference between the evidence of Fitzgerald and Duffy. Duffy submitted that the reflective surface of the mirror may have contributed to confusion about which hand was where. Her Honour considered that Fitzgerald’s evidence was to the effect that Duffy’s left hand was up high and his right hand was at waist level.[25] On this issue, and the further issue of how the mirror ultimately came to the ground, the cross-examination went as follows:

When you saw the man go forward to help with the glass – right – he put his hands up high to support the glass, is that correct? ... It was more like that.

So you’ve got your left hand up high? ... Yeah.

And you right hand sort of out a bit over your waist? ... I’m not sure that it actually stayed on the truck. It was sort of – it was falling and one guy couldn’t have held that weight, it was too heavy, so he supported it for a while and then the other guy’s sort of grabbed the thing and put it down. I’m not sure whether they actually put it on top of the truck or on the ground.

So the other guy, not this Mr Duffy, the other guy that helped him put it back on the truck; is that right? ... I can’t recall whether it went back on the truck or on the ground.

But what Mr Duffy had done was to put his hands – is it his left hand up high? ... The way I saw it was he was holding it with one hand and the other and tried to wrestle with its weight.

So he’s at the back of the truck with his left hand up high with his hand flat on the glass? ... I don’t think it was flat, I think he grabbed ...

Or grabbed the top? ... Grabbed the top or the corner or something and the bottom part of it.

And then the weight is in the right-hand holding the bottom of the glass; is that right? ... It was diagonal, so it was awkward – it was toppling onto him.

Yes, I understand it? ... And he was holding it like that, trying to support it and grasp the ...

I understand that, but for the purpose of the transcript, his left hand is up on the glass high, his right hand is about at his waist; correct? ... Something like that.

... if someone else had come along and reached down low with their left arm to hold the glass, that was not Mr Duffy, was it, because Mr Duffy had his left arm up high and his right hand at about waist level; is that correct? ... The thing was falling on him, so he would have – would have had the left arm up and the bottom part falling.

Yes? ... Because it’s a great weight. I don’t think one guy could have lifted that mirror himself.

No? ... So it was in the process of toppling over, so he was holding it with his right hand at the bottom, supporting, and the left hand trying to fend it off falling on himself.

I understand that? ... In the gravitational process involved, it would have been falling at the same time as he’s catching it because there’s no way he could have held it up there like that.

No? ... So it’s falling.

Yes? ... His right hand is underneath.

Yes? ... I’m not sure how far, but he managed to hold it long enough for someone else to grab it, and you’re right that someone else did grab it underneath, but which hand, I can’t be sure of that.

Don’t worry about the hand. If someone else grabbed it from underneath, it wasn’t Mr Duffy was it? ... Mr Duffy did grab it underneath.

No, no, no, if someone else grabbed it down low, I mean very low with their left hand, that wasn’t Mr Duffy was it? ... Well it couldn’t have been.

45 Fitzgerald’s evidence was to the effect that Duffy held one hand up high trying to stabilise the toppling mirror and one hand was grabbing the mirror from underneath. That was consistent with Duffy’s evidence. While he ultimately gave the evidence that it was Duffy’s left hand up high and right hand holding on to the mirror at the bottom, which was the reverse of Duffy’s evidence,[26] this was in the context of his giving unequivocal evidence that Duffy ran towards the mirror when it was falling, grabbed both the top and bottom of the mirror, tried to wrestle with its weight as it toppled over him. This confirmed the core features of the incident. Whether ultimately assistance was given from one of the other men or how exactly the mirror came to rest was not material.

46 Given that the core features of the incident as alleged by Duffy were confirmed by Fitzgerald, and given that there was no evidence adduced by the Salvation Army which contradicted it, in our view the judge was obliged to accept it. This is consistent with the principle that a judge is obliged to accept uncontradicted evidence providing that it is reasonable and inherently probable.[27] While there were differences in the evidence given by Duffy and that given by Fitzgerald, in our view those differences were matters of detail and did not undermine the core features of the incident. We consider that it was not open to her Honour to conclude that ‘Fitzgerald’s evidence [was] diametrically opposed to [Duffy’s] version of the incident’.[28]

47 Moreover, given the manner in which the Salvation Army chose to conduct its case, an adverse inference based upon Jones v Dunkel[29] was clearly open to the effect that the failure of the Salvation Army to call any of the six or seven men engaged in unloading the vanity unit, or any other witnesses to the incident who clearly could have given relevant evidence on the central issues in the case, without an explanation of their unavailability, suggested that the evidence of those witnesses would not have assisted its case.

48 We consider that, taking all those matters into account, it was not open to her Honour to conclude that ‘it was wholly improbable, wholly unlikely, and an impossibility for the incident to occur in the manner described by [Duffy]’.[30]

49 Moreover, we consider that her Honour was wrong to conclude that even if the incident did occur as Duffy alleged, there was no negligence or breach of duty.

50 It is apparent that the unloading area and environs were inherently hazardous. Heavy furniture was unloaded from trucks and those responsible for the unloading mingled with other employees, not responsible for the unloading, who appear to have been unrestricted in their capacity to stand or move through the area while furniture, including a heavy item such as a vanity unit with mirrors, was being unloaded. The evidence of both Duffy and Fitzgerald confirmed this. The submission of Duffy that the area was ‘just a hazardous area by all accounts’ identified this very point. There are obvious risks of injury arising from the unloading of furniture and it was clearly foreseeable that anybody in the area in which unloading activity took place would be exposed to that risk, and might suffer injury.

51 While the use of six or seven men to engage in unloading furniture may well appear to be a reasonable system of work it is, in our view, difficult to conclude that that is so if the system does not also involve excluding other employees who are not involved in the unloading, at least without any other form of restriction to protect those employees from the obvious hazards they face if they are free to wander into the unloading area. A better system of communication, as submitted by Duffy, may have been sufficient. In our view, a system for unloading heavy furniture that involves six to seven men cannot be regarded as a safe system of work without excluding or restricting the presence of other employees in an area, where the risk of injury is foreseeable and significant, by means of a warning or otherwise.

52 The need for an employer to maintain and enforce a safe system of work is made clear in McLean v Tedman.[31] There, a garbage man was injured while running across the road carrying a garbage collection bin, a ‘humper’, on his right shoulder, after emerging from behind a garbage collection vehicle. The High Court found that Brambles Holdings Ltd, the employer of the garbage man, was negligent in failing to provide a safe system of work because:

Although running across the road was a means of doing the work which ... employees chose or preferred, it was nevertheless a system of work of which ... Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances ... there is simply no basis for saying that the risk of injury was fanciful ... or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which garbage was collected.^[32]

53 In these type of circumstances, it is of little consequence that an employer cannot control the misjudgement of an employee:

In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care of the reasonable man requires him to take account of the possibility of inadvertent and negligence conduct on the part of others. ...

Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee’s inadvertence, inattention or misjudgement in performing his allotted task.

... If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account. ...

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.^[33]

54 While it was not one of Duffy’s responsibilities to unload trucks delivering furniture, it was not suggested that his presence in the unloading area was anything other than attributable to his work with the Salvation Army. The Salvation Army must have known or should have known that unless employees not responsible for unloading were warned not to be present when furniture was unloaded, as Duffy and Fitzgerald both were, or the area was one where access could not be gained during unloading, there was a real and not fanciful risk that those employees could be injured. That risk was exacerbated by, and the Salvation Army must have known it would be exacerbated by, the real possibility that employees such as Duffy could misjudge a situation and attempt to retrieve falling furniture even where this would likely cause them injury.

55 In our view it was not open for her Honour to conclude that even if the incident had occurred as alleged by Duffy, the Salvation Army was not negligent. We consider that the circumstances demonstrate that the Salvation Army breached the duty of care it owed to Duffy as a person employed to perform work for it on the day in question.

56 Because we consider that a safe system of work would have required that Duffy not be permitted to be located where he was at the time of the incident, or, if so located, he would have been warned not to attempt to assist with unloading, in our view there is no scope for any finding of contributory negligence. As has been repeatedly said by the High Court, the issue of contributory negligence in a case where a employer has been found negligent has to be approached on the footing that the employer has failed to discharge its obligation to take reasonable care, and that in considering whether there is contributory negligence on the part of a worker, the circumstances and conditions in which he or she has to do their work have to be taken into account. The question then becomes whether, in those circumstances, and under those conditions, the worker’s conduct amounted to mere misjudgment on the one hand, or to negligence on the other hand.[34] In the present case, at best for the Salvation Army, the actions of Duffy in rushing to assist amounted to mere misjudgment, rather than contributory negligence.

57 There was evidence that Duffy suffered an injury to his left shoulder as a result of the incident.[35] The extent of that injury was not determined by her Honour, nor did she determine the loss and damage flowing from the injury or the extent to which that sounded in damages for pain and suffering or economic loss. There was considerable controversy relating to Duffy’s pre-injury earnings and future economic loss.

58 As this Court has not seen Duffy, nor heard him give evidence, and does not have the benefit of a trial judge’s assessment of damages, and as the positions of the parties vary dramatically, it is necessary for the matter to be remitted to the County Court, on the issue of the quantum of damages alone, to be heard and determined by a different judge.

59 There will be orders that:

(1) The application for an extension of time be granted;

(2) The appeal be heard instanter;

(3) The appeal be allowed and the orders of her Honour Judge Bourke of the County Court, dated 17 June 2013, be set aside and in lieu thereof there be judgment for the plaintiff on the issue of liability, and the

proceeding be otherwise remitted to the County Court on the issue of damages, to be heard by a different judge.

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^[1] See Duffy v Salvation Army (Victoria) Property Trust [2013] VCC 683 (‘Reasons’). Her Honour also dismissed a claim for breach of regulations made under the Occupational Health and Safety Act 2004.

^[2] Reasons, [11].

^[3] The proceedings were originally filed against the Commonwealth of Australia, the East Gippsland Institute of TAFE and the Salvation Army, although proceedings against the TAFE and the Commonwealth were discontinued before the matter went to trial.

^[4] Reasons, [268].

^[5] The hearing in the County Court took place before Judge Bourke on 3, 4 and 5 June 2013.

^[6] Reasons, [226].

^[7] Reasons, [131].

^[8] Ibid [131].

^[9] Ibid [114].

^[10] The Salvation Army accepted that Duffy was deemed to be an employee at common law in circumstances where it had control and power over what he did at work: Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16.

^[11] Reasons, [224].

^[12] Reasons, [202]-[209].

^[13] Relying on Hopgood v Wodonga Regional Health Service [2012] VSC 169, [23]; Coca-Cola Amatil (NSW) Pty Ltd v Pareezer [2006] NSWCA 45; Swain v Waverley Municipal Council (2005) 79 ALJR 575.

^[14] Reasons, [215].

^[15] [1963] VicRp 80; (1963) VR 594. In Farlow the Court held that unless there is evidence upon which it can be concluded that a plaintiff will earn less money post-injury, the Court should compensate the plaintiff only to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of future unemployment or less remunerative employment. In practical terms this means that when a court cannot make an assessment with precision as to a loss of income then an assessment is to be made in a global sense, with the trial judge doing the best he or she can do with limited information.

^[16] [2005] HCA 14; (2005) 79 ALJR 839, [12].

^[17] Reasons, [244]. Section 14B(3) of the Wrongs Act provides: ‘An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.’ Subsection (4) lists factors to be taken into account in establishing whether there has been a breach of the obligation under sub-s (3) including, inter alia, the gravity and likelihood of the probable injury; the nature of the premises; the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises and the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

^[18] Reasons, [247]-[249].

^[19] Ibid [250].

^[20] Ibid [251].

^[21] Ibid [256].

^[22] Ibid [257]-[261].

^[23] Ibid [265].

^[24] Jackamarra v Krakouer (1998) 195 CLR 516.

^[25] Reasons, [131].

^[26] Reasons, [37].

^[27] Read v Nerey Nominees Pty Ltd [1979] VicRp 6; (1979) VR 47. See also Hardy v Gillette [1976] VicRp 36; [1976] VR 392; Llewellyn v Reynolds [1952] VicLawRp 24; [1952] VLR 171; and Richards v Jager [1909] VicLawRp 26; [1909] VLR 140.

^[28] Reasons, [218].

^[29] [1959] HCA 8; (1959) 101 CLR 298.

^[30] Reasons, [219].

^[31] [1984] HCA 60; (1984) 155 CLR 306.

^[32] Ibid 311.

^[33] Ibid 312.

^[34] See Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301; and Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839.

^[35] There were reports from Dr Warboys, Dr McConville and Mr Rehfish referred to by Her Honour in her reasons.