* Thy JUDGMENT No. Sv. Ye CATCHWORDS Negligence ~—- employer's liability - appellant employed in linen room of hospital - engaged in moving heavy trolleys - back injury suffered when endeavouring to separate two trolleys which were jammed - previous history of complaints of back problems and of trolleys being too heavy - question of fact - no guestion of principle. ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY CECILE ZWICKERT v_ CAPITAL TERRITORY HEALTH COMMISSION No. ACT G19 of 1987 Coram: Sheppard, Kelly and Neaves JJ Canberra 20 April 1988 . IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G19 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CECILE ZWICKERT Appellant (Plaintiff) AND: CAPITAL TERRITORY HEALTH COMMISSION Respondent (Defendant) MINUTE OF ORDERS JUDGES MAKING ORDER: SHEPPARD, KELLY & NEAVES Jd DATE OF ORDER 20 APRIL 1988 CANBERRA. A.C.T. WHERE MADE THE COURT ORDERS THAT:-— 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. it) THE FEDERAL COURT OF AUSTRALIA AUSTRALTAN CAPITAL TERRITORY ) ) } No. A.C.T. G19 of 1987 DISTRICT REGTSTRY ) ) ) GENERAL DIVISION On Appeal from the Supreme Court of the Australian Capital Territory BETWEEN : CECILE ZWICKERT Appellant (Plaintiff) AND CAPITAL TERRITORY HEALTH COMMISSION Respondent (Defendant) CORAM: SHEPPARD, KELLY and NEAVES JJ. DATE : 20 APRIL 1988 REASONS FOR JUDGMENT SHEPPARD J.: This is an appeal against a judgment of the Supreme Court of the Australian Capital Territory (Miles C.J.) in which the Supreme Court directed the entry of judgment for the respondent. The respondent was sued by the appellant for damages for neqligence. The action arose out of an incident which occurred in November 1981 when the appellant was injured in the course of her employment with the respondent. At all material times the appellant was employed by the respondent as a supervisor of the laundry and linen service at the Woden Valley Hospital. The appellant had been employed in this position for a number of years. > Be fa The essential facts are not substantially in issue. The account which follows is taken, to a large degree, from the judgment of the learned Chief Justice. Each day approximately 12 trolleys of clean linen were brought by truck froma linen service known as the Mitchell Linen Service. This service supplied clean lincn to various institutions administered by the respondent. The trolleys were wheeled into a corridor and lined up against the wall adjacent to the clean linen room by an employee of the Mitchell Linen Service. During the course of the morning each trolley was brought into the linen room usually by the appellant but sometimes by 2a male employee. Once the trolleys were inside the linen room the contents were transferred to smaller trolleys for distribution the following day throughout the Hospital. The trolleys were constructcd of tubular stainless steel of a welded construction. Each trolley had four wheels about six inches (15 cm.) in diameter. The wheels were about two inches (5 cm.} wide. One pair of wheels was at the front of the trolley and the other pair at the back. Two of the wheels were fixed in relation to the trolley. The other two were capable of swivelling 260 degrees. They had ball or roller bearings and they rotated quite readily on their spindles. The trolleys were 432 inches (approximately 108 cm.) long and 26 inches (65cm.) wide. They were about six fect {180 cm.) high. When loaded with linen each trolley weighed in the vicinity of 270 to 280 kilograms, i.e. a little more than a quarter of a tonne. Some of them weighed as much as 300 kilograms but that was unusual. 2. . On 2 November 1981 the appellant wanted to bring a particular trolley from the row of trolleys lined up in the corridor into the linen room. The trolley she wanted was third from the end closer to the linen roon. She went to pull the first trolley in the row so as to give her room to manoeuvre the trolley which she wanted. His Honour found that the appellant was not able to move the first trolley because somehow or other the first trolley had become interlocked with the second. The appellant then went to the third trolley and attempted to extricate it. This she did by pushing the second trolley with her left hand and pulling the third trolley with her right. This had the effect of separating the second and third trolleys to some extent. In the act of carrying out this activity the appellant felt a sharp twinge of pain in her lower back. She was able to carry on with what she was doing and remove the trolley from the row. She pulled it and another trolley into the linen room and then reported to the Staff Clinic. It is not in contest that as a result of the incident the appellant cuffered an injury to her back which has resulted in a good deal of pain and disability. Notwithstanding his conclusion that there should be judgment for the respondent, his Honour went on to assess the damages which the appellant would have been entitled to recover had she succeeded on the issue of negligence. The damages were assessed in the sum of $195,611.39. It is agreed that if this Court should find that the appellant should succeed, it should direct the entry of judgment for her in that sum. The incident which occurred on 3 November 1981 was not the only incident in which the appellant apparently suffered a 4. . problem with her back as a result of moving trolleys. His Honour found that she had reported back pain to the Staff Clinic for the first time in April 1980. He also found that there were about five occasions when similar complaints were made prior to November 1981 including one on 4 April 1981. The records of the Staff Medical Centre are in evidence. Five entries are relevant, namely, entries on 23 April 1980, 2 May 1980, 8 December 1980, 7 February 1981 and 22 April 1981. The entries of 28 April 1980 and 2 May 1980 are ambiguous. That of 28 April 1980 refers to the appellant suffering pain in her left side, groin and back. After the entry is the notation, "Not rel. (related) to anything". The entry of 2 May 1980 which was made four days later is as follows, "Still pain - not as bad - put down to constipation". The second entry suggests that the pain then suffered was that complained of on 28 April 1980 and that neither complaint was due to lifting or moving trolleys. That was the submission made to us by counsel for the respondent and I think that it should be accepted. On 8 December 1980 the appellant reported pain in her back and an X-ray was ordered of her lumbar spine. Qn 7 February 1981 she complained of low back pain and of being tender in the L 4-5 region. It was submitted by counsel for the respondent that those incidents were not related necessarily to pain occasioned by the movement of trolicys. But his Honour accepted the appellant's evidence that she had on occasions complained to her supervisors that the trolleys were too heavy. His Honour said that the complaints had been acted upon to the extent that persons from the Hospital had gone to the Linen Service at 5. . Mitchell and asked that the loads on the trolleys be reduced. Hic Honour added, "At no stage, however, did the plaintiff inform her supervisors of the extent to which the load ought to be reduced and the Mitchell Linen Service people were not asked to reduce the load by or to any particular weight or volume". I confess that I find the considerations implicit in this statement puzzling. Notwithstanding that she was the supervisor of the linen room, the appellant is not skilled in any particular discipline and would not herself have the capacity to make a judgment on what reduction, if any, should be made. Furthermore, she is French by birth and it is plain froma reading of her evidence that she is not at home with the English language. Be that as it may, the important fact is that the evidence establishes that the appellant did make complaints about her back. It is not critical for her case that the complaints may not have arisen as a result of her endeavouring to move one or more of the trolleys. Furthermore, on 22 April 1981 the notation said that the appellant stated that she hurt her back pulling two full linen trolleys apart. Pressure of work stopped her from waiting to see the doctor. The incident described bears a resemblance to that which occurred on 3 November 1981 a little over six months later. The complaint made in April 1981 made it clear that at least on that occasion, the pain was caused by moving the trolleys. There was a substantial amount of evidence that the type of trolley in use at the Woden Valley Hospital is widely used in other hospitals in Australia. The principal evidence in this 6. . regard was given by Mr. R.A. Arnold who is the General Manager of the South Australian Central Linen Service. He is also the Chief Executive Officer of the State Clothing Corporation. He said that the Central Linen Service was the largest linen service operation in Australia. It handled in excess of 250 tonnes of linen per week. The service supplied about 85 per cent of the hospitals in South Australia with linen. In addition to holding the positions already mentioned, Mr. Arnold is the Chairman of the Australian Standards Committee which has been established to set up an Australian standard for laundry practicc. Mr. Arnold has inspected linen services ina number of overseas hospitals and in other States of Australia, as well as in South Australia itself. He said that the South Australian Linen Service was embarking on a major re-equipment programme which would involve the provision of the most up to date transportation system within a laundry in the world. Mr. Arnoid had observed the way in which laundry was delivered to the linen room in the Woden Valley Hospital. He inspected the type of trolley used at the Hospital. He said that the trolleys in use at the Hospital were of a much higher standard than those employed in his organization. He said they were better than his own because they were made of heavier gauge metal, they had folding shelves and very much better quality wheels. ' Mr. L.F. Forrester is an industrial engineer in the employment of the Department of Health in Sydney. He too 7 a de inspected the trolleys at the Woden Valley Hospital. Amongst other things he said that in New South Wales hospitals the standard practice was that, if a trolley had to be moved, a female was employed to move it unless it were being loaded on to a truck when the job was done by a male employee. The trolleys in use in New South Walcs were apparently similar to those in use in the Woden Valley Hospital. The appellant's case both before his Honour and before us was put on two bases. The first ignored the previous incidents which the appellant had suffered in relation to her back and concentrated upon the size and weight of the trolleys and the fact that a female was required to move the trolleys without the help of any mechanical device or another employee. Reliance was placed on the evidence of Mr. F.R. Lucas who, in November 1981, was the Acting Supply Manager at the Woden Valley Hospital. He know the appellant and the work which she did. Amongst other things Mr. Lucas said, "The heavy ones, once you got them rolling on the vinyl floor you were right. They would roll. It was the initial move off which sometimes was quite heavy". Problems about this way of putting the appellant's case arise because the appellant was the supervisor of the work, she was in a position to make a judgment whether a particular movement was too much for her and there was a male employee upon whom she could call to help her if there was a problem. Her reasons for not calling for help were that she regarded the employee as unsatisfactory and that he was not always present. She was obviously a very energetic employee, anxious to get on with her 8. - work, and she was not prepared to wait about for heip if it were not immediately on the spot. Miles C.Jd. found that the evidence established that the trolleys when lined up in the corridor would on occasions be jammed by some part of the one interlocking with a part of the other. He thought it was reasonably foreseeable that employees such as the appellant would seek to separate one trolley from the other by the type of action which the appellant took. It followed from that conclusion that in his opinion such a situation gave rise to a reasonably foreseeable risk of injury. He said, correctly in my opinion, that the degree of risk did not have to be high or even probable for it to be foreseeable. But he added - again correctly ~ that the degree and extent of the visk were factors to be taken into consideration when assessing the reasonableness or otherwise of the measures which might be taken to obviate the risk. His Honour concluded that it would not be right to hold that the respondent failed to provide a reasonably safe system of work at least for female employees, if not for all employees. He said, relying upon the expert evidence which had been called, that there was no departure from standard practice. He was not satisfied that it was incumbent upon the respondent as a reasonable employer to take steps to reduce the weight of the loads on the trolleys to such an extent that it would obviate the risk of injury of a straining nature to which the employees might be exposed when attempting to move the trolleys. Nor did he think it was incumbent upon the respondent to issue warnings to 9. . female ecmployees that they should not attempt to move the trolleys in the event of one being interlocked with another or that it was incumbent upon the respondent to have a man nearby at all times who would be available to assist female employees who found the weight of the trolleys to be excessive. Finally, he concluded that it would be unreasonable to compel the employer to issue instructions prohibiting female employees from attempting to move the trolleys in the event of finding them too heavy. To the uninitiated the size and weight of the trolleys when loaded might suggest that conclusions other than those reached by his Honour were warranted. After all, she was attempting to separate two jammed trolleys, the combined weight of which was more than half a tonne. But the difficulty in the appellant's path is the strength of the evidence of industry practice given by the witnesses called on behalf of the respondent. Trolleys of this kind - in many cases not as manoeuvrable as these trolleys - are in wide use in hospitals and other institutions throughout the country and indeed throughout the world. There is no evidence to suggest that the trolleys are inherently dangerous or unsafe or unsatisfactory in any respect. An attempt was made, with the aid of the evidence of Mr. Boris Osman, whois a consulting engineer from Sydney, to calculate the force which the appellant would have had to exert in order to separate the two trolleys. The difficulty is that the movement is not a lift but a sideways pull or push. Mr. Osman's cross-examination and the evidence of other witnesses called by the respondent disclosed that there is no satisfactory evidence of the extent of the push or pull. But there is in evidence material from the United Mi, 10. e States which would suggest that the ordinary movement of similar trolleys (not their separation when they were jammed but including the pull or push necessary to move the trolleys from rest) did not involve a female employee in moving a weight which was beyond her capacity. Accordingly, I agree with his Honour that, insofar as the appellant's case was based upon the more general considerations which arise from her being required to move trolleys of the size and weight which were here involved, her case must fail. The case based upon the evidence of previous occasions on which the appellant suffered incidents in relation to her back is more difficult. Of this matter his Honour said:- "What calls for particular consideration, however, is the peculiar position of the plaintiff who, as I say, was known by certain persons in the employ of the defendant to have had some problems with her back and known by other persons in the employ of the defendant to have complained about the weight of the trolleys. It was not alleged against the defendant, cven in submission, that it was negligent in that one of its employees, namely the staff doctor, was negligent in failing to warn those in the employ of the defendant who were in charge of the daily activities of the plaintiff or who otherwise exercised managerial responsibility that steps should be taken to place her on restricted duties. Nor was it alleged that the staff doctor was negligent in failing to warn the plaintiff of the danger of carrying out duties such as those she was engaged in at the time of her injury. As I understand it, it was alleged that knowledge of the plaintiff's susceptibility to back injury was imputed to the defendant ina general sort of way so that those in charge of the plaintiff's work activities should have made allowance for her susceptibility to injury. That was not, it may be observed, a matter contained in the particulars of negligence. What exactly that susceptibility was has not been made clear, either in an objective sense, or in a subjective sense, il. . that is to say, what it was exactly that was in the minds of those persons or must be imputed to be within their knowledge. Furthermore, on no view of the evidence, am I able to conclude that the plaintiff, prior to injury, was exposed toa risk so great that she should not have been permitted to undertake any duties at all which involved the wheeling of the trolleys. I do not think it reasonable to have expected the defendant to have warned the plaintiff against movements of such a nature or to have prohibited her from making such movements or to have organized her work so that 1t was not necessary for her to make such movements. Furthermore, I am unable to see the extent of the reduction of the load of the trolleys which was required in order to obviate the risk of the injury which the plaintiff suffered. Lastly, it must be borne in mind that the plaintiff herself was in charge of the linen room. She herself did not suspect that she would sustain injury in what she did in trying to separate the wo trolleys. Had she contemplated such a risk, it was open to her to postpone taking the particular trolley into the linen room until the male assistant returned from his ward rounds". Later his Honour said:- "T am not convinced that the plaintiff on the day in question was required to move an unnecessarily heavy trolley nor that she was required to exert a force which was excessive in that it constituted an unreasonable risk of injury. It was not unreasonable of the defendant to require the plaintiff, as a female, to move the trolley. It was not unreasonable for the defendant to require the use of manual labour to move the trolley, that is to say, by the use of non-mechanical means". This is not a case where any detailed reference to authority is called for. There are to be found in the cases a number dealing with claims against employees in relation to work which has involved the lifting or other movement of heavy weights. The most comprehensive consideration of the problem is to be found in the decision of the High Court in Bankstown Foundry Pty Limited 12, e v. Brastina (1986) 65 A.L.R. l. That was a case which, in the end, was decided upon its own particular facts. But the judgments are, with respect, instructive because of the substantial reference to authority which they contain. Reference may also be made to Pitsiavas_v. John Lysaght (Aust.) Limited £19627 N.S.W.R. 1500, a decision of the Full Court of New South Wales, and Brkovic v. J. O'Clough & Som (1983) 57 A.L.J.R. 834, a decision of the High Court. This is not a case where there is any dispute before us concerning the primary facts; we are entitled to judge the matter on those facts without treating the judgment below as one which should be given overriding weight. That is not to say that weight is not to be given it, but the matter, although one of fact, is for us to decide on the primary facts found by his Honour. See Warren v. Coombes (1979) 142 C.L.R. 531 at p. 551. I confess to having found the problem which this case poses a difficult one and my mind has fluctuated as to what the outcome should be. A starting point for the appellant's case is provided by all the mattcrs earlier referred to in relation to her first way of putting the case. In particular there is the fact that the trolleys when loaded were of a substantial size and weight. There are also the facts that the appellant is a female, that in the normal course she could he expected to move the trolleys and disengage them, if they were jammed, on her own, and that, notwithstanding that she was entitled to ask for help, the reality, which must have been known to her employers, was that she would be likely to endeavour to separate jammed trolleys by herself. 13. - It is against that background that one needs to consider the significance, for the appellant's case, of the various complaints which were made. Undoubtedly she suffered incidents relating to her back. On at least one occasion she complained of back pain as a result of separating jammed trolleys. This was the way the matter was reported to and noted by the Staff Clinic. It is truc that the appellant's complaints, taken by themselves, did not have any serious consequences and that she herself was impatient to get on with her work with the result that on one occasion she would not wait for treatment. Nevertheless, her complaints were recorded in the Staff Clinic records and those complaints were made in the same general period as other complaints which she made to her supervisors .about the weight of the trolleys. The case against the appellant is that she did not take steps to bring home cither to the Clinic or her superiors the problems she was having and that she herself was in the best position to make a judgment whether particular manoeuvres were within her capacity or not, particularly as she was well aware that she had suffered problems with her back in the past. But it is to be emphasized that his Honour found that the appellant had complained of back pain to the Staff Clinic on three occasions prior to November 1981 in addition to her complaints to her supervisors that the trolleys were "too heavy" and that the respondent was sufficiently aware of this to have requested of Mitchell Linen Service that the loads on the trolleys be reduced. As earlier noted, his Honour remarked:- "She hersclf did not suspect that she would sustain injury in what she did in trying to 14. . separate the two trolleys. Had she contemplated such a risk, it was open to her to postpone taking the particular trolley into the linen room until the male assistant returned from his ward rounds". This may be so, but as a middle-aged woman with no medical training, it is perhaps not surprising that she did not suspect that she would injure herself. Having reflected on the matter I have reached the conclusion that, notwithstanding the strength of the case which the respondent has and the force of the matters relied upon by Miles C.J. to reject the claim, the appellant did establish, upon the preponderance of the probabilities, a failure on the part of the respondent to take reasonable care for her safety. My reasons for that conclusion are hased upon the matters upon which the appellant relies and the further fact that in all the circumstances it must have been reasonably within the contemplation of the respondent that the appellant would be likely to act as she did. In my opinion it should have taken steps to see to it that she was provided with assistance which was readily available or that, at the very least, she was warned in no uncertain terms that she must not endeavour to free loaded trolleys which had become jammed. I have not considered the question of contributory negligence because there is no defence of contributory negligence raised in the defence which was filed nor was any argument put to us based on that matter. 15. In the result I would allow the appeal, set aside the judgment of the Supreme Court, and in lieu thereof, direct the entry of judgment for the appellant in the sum of $195,611.39. The respondent should pay the costs both of the trial and the appeal. | certity that this and the 1A preceding pages are a true copy of the reasons for Judgment herein of The Honourable Mr Justice Sheppard. / Ath oon Aseociate Deled Qo APRIL IGeE "se ca IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ) No. ACT G19 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: CECILE ZWICKERT Appellant AND: CAPITAL TERRITORY HEALTH COMMISSION Respondent CORAM: Sheppard, Kelly and Neaves JJ DATE: 20 April 1988 REASONS FOR JUDGMENT KELLY J: I have had the advantage of reading in draft the reasons for judgment prepared by Sheppard J. His Honour in those reasons sets out the basic facts concerning the incident out of which the appellant's claim arises and relevant findings made by the learned trial Judge. At the outset of the hearing the appellant sought and was given leave to amend her notice of appeal by substituting for the grounds shown in paragraphs 2-11 inclusive those set out in paragraphs 1-4 inclusive of a document headed "Notice of Additional Grounds of Appeal". As a result the grounds upon which the appeal proceeded were as follows:- ' -2- "1. Having found the relationship of master and servant existed between the plaintiff and the defendant and having found that there was a foreseeable risk of injury to the plaintiff the Learned Trial Judge erred in law in that he - (a) failed to find that the defendant had available to it reasonable steps which, if taken by the defendant, would have avoided that risk; (b) failed to find that the defendant took no such steps to avoid that risk; (c) farled to find that the plaintiff suffered injury and damage as a result of the defendant's failure to take such steps. 2. The Learned Trial Judge erred in law in - (a) failing to take into account the fact that the defendant had actual medical knowledge of the plaintiff's susceptibility to injury as a result of moving heavy trolleys, (b) failing to allow the plaintiff to prove that the trolleys were less manoeuvrable than they would otherwise have been because of disrepair which caused them to lock together, (c) fazrling to allow the plaintiff to prove why the trolleys locked together, (d) concluding that he, the Learned Trial Judge necessarily had to decide whether any particular trolley was defective. 3. The Learned Trial Judge failed to allow evidence to be adduced to the effect that the system of work employed by the defendant was unsafe in the circumstances. 4. That the Learned Trial Judge was unreasonable in interpreting Mr Arnold's evidence as relating to questions of safety." -3- For convenience sake I deal first with grounds 2(b) and (c). The learned trial Judge found that yust before her accident the appellant intended to take the third of the first three trolleys into the nearby linen room. She went to pull the first to give her room to manoeuvre the third but was unable to move it because somehow or other it had become interlocked with the second. She then went along to the third trolley and attempted to extricate it. It was during that attempt that she suffered her injury. There was no evidence that any one of those three trolleys was defective in any way. The appellant's complaint concerning the rejection of evidence is that she should have been allowed to prove that generally there were defects in the trolleys, that these defects led to trolleys becoming entangled and this should have been known to the respondent who should have provided a safer system that would prevent the trolleys from becoming entangled. An attempt was made to prove that the trolleys were difficult to move because a rubber roller at the bottom of the trolleys, said to have been intended presumably to prevent them from damaging walls, could act as a brake when turning or when rubbing along a wall. Objection was taken to questions concerning this and counsel for the appellant was asked by the learned trial Judge whether he was ascribing the difficulty of manoeuvring the trolley on this particular occasion to the inadequacy of the rubber roller. He replied, "Well the plaintiff is -4- . unable to ascribe it exactly." The evidence was rejected on the basis that no particulars of the allegation had been furnished, Before this Court counsel for the appellant conceded that there was no evidence that the trolleys in question suffered from any problem concerning rubber rollers and that he could only show by some form of inference that that was the case if the evidence showed that some other trolleys suffered from the defect alleged. I am unable to see that any rejection of the evidence proposed was wrong but 1f£ it were I do not see that in the circumstances it constituted an appealable error. It seems from the evidence that the trolleys might jam simply because of their positioning, even though in good repair. In my opinion the two grounds fail. As to ground 2(d), the learned trial Judge said, during the course of his judgment:- "T am unable to conclude that any particular trolley was defective." In view of the appellant's evidence, this is not surprising. He did not, as I understand his reasons for judgment, decide that he necessarily had to find that any particular trolley was defective. The grounds set out in paragraph 1 and ground 2(a) may be dealt with under the general heading of an allegation of failure to take reasonable care for the appellant's safety having regard to her particular circumstances. There was evidence before the learned trial Judge of some matters to which he did not advert specifically in -5- his reasons for judgment. The evidence does not seem to have been disputed. Mr Lucas was called by the appellant. At the time when he gave evidence he was the defendant's Acting Deputy Director of Supply but in November 1981 he was the Acting Supply Manager of the Woden Valley Hospital. He had been at that hospital since 1973 and was familiar with the linen supply and distribution system. At relevant times he was the appellant's supervisor's supervisor. He described the system used essentially as that which the learned trial Judge described in his reasons for judgment. The same type of trolleys packed in practically the same way had been used since 1973. He said that the job of the linen room storeman (the male employee referred to by the learned trial Judge) was to deliver prepacked linen trolleys around the hospital, to bring filled linen trolleys from the corridor outside the linen storeroom where they were left by Mitchell laundry employees into that storeroom and to act as general handyman for the packers there. If he was not there when trolleys had to be brought in from the corridor into the storeroom the employees in the storeroom (all women) could wait until he came back or one of them would go out to get the trolley. There was a time frame within which linen had to be delivered around the hospital. It was thought, he said, better to have a man to help the women pull the trolleys in as some of them were quite heavy, weighing in the vicinity of 270 or 280-odd kilograms with an occasional one weighing a7- TT br ew - - alee -6- up to 300 kilograms. He said that the initial move off was sometimes quite heavy. He said that there was discussion about the linen room storeman's performance in 1981 on quite a number of occasions, that the appellant complained about having to wheel the trolleys in and that she asked for help which could not be given because of staff restrictions. He said it was not always easy to separate trolleys which had become entangled. He confirmed that he had mentioned to the manager of the linen complex or his deputy that the trolleys were sometimes too heavy for moving round. He said that the appellant complained that the trolleys were "way too heavy" and asked that something be done about it. He complained on her behalf to the manager or deputy manager of the linen complex once or twice that he could remember. He said that it was a matter for the appellant whether she waited for the storeman to return or whether she herself took the trolley from the corridor into the linen room. He said that the appellant complained repeatedly about the storeman's incompetence. He said, perhaps inconsistently, "She never complained to me about the weight of her handling of the trolley. But she always complained about no assistance with which to help move trolleys." The appellant also gave evidence on this general topic. She said that in about 1980 she had the assistance of a man whose job it was to take clean linen and collect soiled linen from the wards and to bring trolleys from the corridor near the linen room into the linen room. Most of -* - -7- the time, she said, it was she who got the loaded trolleys from outside the linen room because most of the time there was no man there to help. She was asked whether she said anything to a Mr Smith or to Mr Lucas about the difficulty of moving trolleys into the linen room, Mr Smith was Mr Lucas' immediate supervisor. She said she had. She was then asked:- "Did you say anything to Mr Smith about needing someone to move those trolleys in the linen room?" Unfortunately her reply as set out in the appeal book seems not to be complete. She is recorded as having said:- "Yes, I said ... Yes, sir." She said that Mr Smith replied:- "That 1S part of work. If you cannot do the job look for something else." She added, "or may be not these words. My English not good." Mr Smith seems eventually to have been replaced by a Mr Whittaker. The appellant intended to go to see Mr Lucas because she was getting very tired. Finally she was asked what had happened and she replied:- ",.. I hurt myself quite a few time there but I went to him [Mr Whittaker] in desperation because [the linen room storeman] had a few falls and I had to carry him to casualty and I had to go." She asked Mr Whittaker something about getting an able bodied man to the linen room so that all could do their work. She said the linen room storeman was not able to do it because he used take linen to the wrong ward and get -8- . things mixed up so that she had to rectify them. It was after one morning when she had been, as she put it, "flat out rectifying all those ... trolleys, putting them in the right place" that she went to see Mr Whittaker to tell him all about it and he said he understood and was going to do something about it. She went to Mr Lucas and said that she needed somebody permanently in the linen room. It is not clear from her evidence whether the need was for an efficient man who might take linen to the correct destination or whether he was to be there all the time to assist when trolleys needed to be taken from the corridor to the linen room, a task which in respect of each trolley (there might be as many as 12 or 13 in a morning with more in the afternoon) could hardly have taken more than a minute or two. The plaintiff also gave evidence that she had hurt herself many times with the kind of work that she was doing and that she was always handling heavy things. There is, however, no evidence to indicate that she complained about such a hurt aS work caused at any time except on the one occasion on 22 April 1981 or indeed about such a hurt at all. I respectfully agree with the conclusion reached by Sheppard J that, insofar as the appellant's case was based upon more general considerations which arise from her being required to move trolleys of the size and weight which were involved, her case must fail, as the learned trial Judge found. -9- e The question then is whether the evidence of Mr Lucas concerning the desirability of having a male employee to assist in the movement of the trolleys, the appellant's complaints about their too great weight, the failure of the respondent to provide a linen room storeman who would have been available as required to move the trolleys from the corridor into the linen room and the rejection by Mr Smith of her plea for more assistance constitute evidence of negligence, having regard to the foreseeability of injury which the learned trial Judge found to exist. Consideration must also be given to her medical condition and to the respondent's means of knowledge of what that was. It is true that a claim that the respondent was negligent because it was aware of her medical condition and so should have taken reasonable care to ensure that she did not hurt herself manoeuvring trolleys was not particularised. Nevertheless, if the evidence supports a finding of negligence based on such a ground the appellant would be entitled to a finding in her favour. Mummery v. Irvings Pty Ltd (1956) 96 C.L.R. 99, at p.110. I deal first with the evidence concerning:-— (a) the appellant's complaints about the weight of the trolleys, {b) the view held by Mr Lucas that it would have been better to have a man move the trolleys from the corridor into the linen room, (c) the alleged inefficiency of the linen room storeman, -10- L (ad) the alleged failure to provide efficient male staff, and (e) the comment by Mr Smith quoted above. I proceed on the basis that all these matters were established. This evidence has to be viewed in the context of what was clearly established as generally a safe system of work. If it be the case that a system of work 1s generally a safe system, the fact that additional precautions might have been taken to render it as safe as a responsibility to insure would require does not make it an unsafe system, one that a reasonable employer should not use without those additional precautions. Taking into account all the evidence to which I have referred, I am unable to see that it calls for the conclusion that the system of work adopted and maintained by the respondent was one which breached the duty of care it owed the appellant. The appellant's complaints have to be considered against the background of the foreseeability of injury which she sustained. As the learned trial Judge said:- "Any physical activity which requires exertion, particularly by pushing or pulling, gives rise to a reasonably foreseeable risk of some strain and consequent injury to any part of the body that is placed under stress." In Pitsiavas v. John Lysaght (Aust.) Pty Limited [1962} NSWLR 1500, the Full Court of the Supreme Court of New 'South Wales dealt with a case where a worker, employed -11- Manually to lift sheets of steel, claimed damages from his employer in respect of injury to his back. The lifting system had been in use for 25 years without mishap and would have been innocuous to a normal workman of the class to which the plaintiff belonged. The plaintiff had complained to his foreman and to a delegate of his labour union before the injury that the work was too heavy for him. At pp.1501-3, Herron ACJ (as he then was), with whom Brereton and Manning JJ agreed, said:- "The duty of care of an employer is to take reasonable care to so carry on his operations as not to subject those employed by him to unnecessary risks. This case is concerned wholly with the question of whether there was evidence of a breach of that duty. What has to. be considered on that subject is the anticipated danger reasonably to be anticipated by the employer to the plaintiff or to the class of worker of whom the plaintiff was one. As has been said many times, there is an element of risk in the performance of the most simple of operations in an industrial establishment. Sometimes the risk is both grave and apparent, whilst in others 1t may be said to be trivial and remote. The question here 1s, was there any evidence of the existence of the risk or that it was of such a magnitude as to call for an alteration, by the defendant, in the system of work. It is unnecessary, I think, in this case, to refer at any length to authority. The criteria for determining whether there has been a breach of the duty owed by an employer is re-stated by the High Court in Hamilton v. Nuroof (W.A.) Pty Ltd (1956) 96 C.L.R. 18, at pp.25, 26. It 1s said here, on behalf of the plaintiff respondent, that on the facts of the present case it may be fairly said that there was a degree of injury likely to result from the lifting of these sheets in the manner described, and that degree of injury was -12= likely to be grave. Mr Byers, for the respondent, also says that the degree of risk of an accident was real and not fanciful or inconsiderable, and he also says that there was a degree of risk which was one that could have been met by the exercise of reasonable care and, particularly in this case, by putting into operation a mechanical process that was described and thereby avoiding the lifting operation which was the critical objectional (sic) feature, as he says, of this system of work. These cases are sometimes borderline - what is evidence of a breach of care on the part of an employer is very largely of course a question of fact - but there are other cases, and in my opinion this is one, where the evidence falls short of that degree of proof which a plaintiff must establish before he is entitled to succeed in getting his case tried by a jury. The magnitude of the risk depends of course partly, on the probability of an accident occurring and partly also on the gravity of the results if it does occur. There are two factors; the likelihood of an injury being in fact caused and the class of injury risk. I think Lord Morton has summed up the matter in a compendious fashion in Paris v. Stepney Borough Council [1951] A.C. 367; [1951] 1 All E.R. 42 where his Lordship said: '...there are occupations in which the possibility of an accident occurring to any workman is extremely remote, while there are other occupations in which there 1s constant risk of accident to the workmen. Similarly, there are occupations in which, if an accident occurs, it is likely to be of a trivial nature, while there are other occupations in which, if an accident occurs, the results to the workman may well be fatal.' There is in each case a gradually ascending scale between the two extremes; the more serious the damage which will happen if an accident occurs, the more thorough are the precautions which an employer must take. The High Court in Hamilton's Case, to which I have referred, supra, the learned Chief Justice and kKitto, J., in their joint judgment put it this way: 'It has been said that a reasonable and prudent employer is (i) bound to take into consideration the degree of injury likely to result; (11) bound to take into consideration the degree of risk of an accident; (1ii) entitled to take anto consideration the degree of risk, if any, we be eene -13- involved in taking precautionary measures.' Their Honours cited with approval Morris v. West Hartlepool Steam Navigation Co, Ltd. [1956] A.C. 552, at p.579; [1956] 1 All E.R. 385. So that, so far as the authorities are concerned, it leaves this case in this situation; is there in this case evidence which prima facie shows that a reasonably prudent employer, in the situation of the defendant, ought to have known that' the continuance or persistence in this class of work was likely to cause injury to. the plaintiff, and to a degree that called for some alteration in the system of work? In my opinion there was no such evidence. The task of lifting 160 pound weight steel, eight feet by 48 inches in dimension, 1s in itself, in my opinion, no evidence of negligence in the employer._ The complaints made by the plaintiff to the foreman, I think, take the matter no further for they do not show that even if the plaintiff regarded the work as heavy or too heavy for him that it was negligence in the employer to persist in conducting his affairs in that fashion." An appeal to the High Court 1s noted as having been dismissed (36 ALJR 372). The Judgment is not reported but I have had the opportunity of seeing the Court's very brief reasons for judgment. McTiernan J gave judgment orally for the Court and said, inter alia:- "We are all of the opinion that there was no evidence fit for the consideration of the jury on the issue of the alleged negligence of the respondent." The two cases have a great deal of similarity. One must of course be careful to avoid using as a precedent a case decided on different facts but the similarities are, in my opinion, of considerable assistance in this case. I turn to the case based upon the evidence of previous occasions on which the appellant had suffered incidents in relation to her back. Sheppard J has set out at -14- . in his reasons two passages from the learned trial Judg judgment which are relevant to this question but, convenience sake, I repeat them:- "What calls for particular consideration, however, 1S the peculiar position of the plaintiff who, as I say, was known by certain persons in the employ of the defendant to have had some problems with her back and known by other persons in the employ of the defendant to have complained about the weight of the trolleys. It was not alleged against the defendant, even in submission, that 1t was negligent in that one of its employees, namely the staff doctor, was negligent in failing to warn those in the employ of the defendant who were in charge of the daily activities of the plaintiff or who otherwise exercised managerial responsibility that steps should be taken to place her on restricted duties. Nor was it alleged that the staff doctor was negligent in failing to warn the plaintiff of the danger of carrying out duties such as those she was engaged in at the time of her injury. As I understand ut, it was alleged that knowledge of the plaintiff's susceptibility to back injury was imputed to the defendant in a general sort of way so that those in charge of the plaintiff's work activities should have made allowance for her susceptibility to injury. That was not, it may be observed, a matter contained in the particulars of negligence. What exactly that susceptibility was has not been made clear, either in an objective sense, or in a subjective sense, that is to say, what it was exactly that was in the minds of those persons or must be imputed to be within their knowledge. Furthermore, on no view of the evidence, am I able to conclude that the plaintiff, prior to injury, was exposed to a risk so great that she should not have been permitted to undertake any duties at all which involved the wheeling of the trolleys. I do not think it reasonable to have expected the defendant to have warned the plaintiff against movements of such a nature or to have prohibited her from making such movements or to have organized her work so that it was not necessary for her to make such movements. ' Furthermore, I am unable to see the extent of the reduction of the load of the trolleys e's for -15- which was required in order to obviate the risk of the injury which the plaintiff suffered. Lastly, it must be borne in mind that the plaintiff herself was in charge of the linen room. She herself did not suspect that she would sustain injury in what she did in trying to separate the two trolleys. Had she contemplated such a risk, it was open to her to postpone taking the particular trolley into the linen room until the male assistant returned from his ward rounds. I am not convinced that the plaintiff on the day in question was required to move an unnecessarily heavy trolley nor that she was required to exert a force which was excessive in that it constituted an unreasonable risk of injury. It was not unreasonable of the defendant to require the plaintiff, as a female, to move the trolley. It was not unreasonable for the defendant to require the use of manual labour to move the trolley, that is to say, by the use of non-mechanical means." There are in the records of the Staff Clinic of the Woden Valley Hospital notes of a large number of attendances by the appellant at that Clinic. The notes concerning five of the attendances, those of 28 April 1980, 2 May 1980, 8 December 1980, 7 February 1981 and 22 April 1981 are of particular importance but other parts of the records may be noted. I agree with Sheppard J that the entry of 2 May 1980 suggests that the pain then suffered was that complained of on 28 April 1980 and that neither complaint was due to lifting or moving trolleys. The entry of 8 December 1980 shows a report by the appellant of pain in her back. An x-ray was ordered of her lumbar spine. Notes of her 'treatment indicate a urinary tract problem with "pain across' back". The note includes the phrase "see Dr -16- Hughes". It appears that the appellant had had a urinary tract problem at about that time and, indeed, for some considerable time. A number of letters to Dr J. Appel, from 1976 the staff doctor at the Woden Valley Staff Clinic, from Dr Hughes, a urologist, were in evidence. They were dated 9 November 1979, 14 February 1980, 11 December 1980, 24 December 1980, 12 February 1981, 10 April 1981, 11 June 1981 and 15 October 1981. All the letters in evidence refer to a urinary tract problem; none makes reference to back pain. The fourth note, that relating to 7 February 1981, reads:- "7.2.81 Low back pain, tender L4-5 S.L.R. (straight leg raising) normal - exercises heat - see 2/12 (see in two months),." The entry for 22 April 1981 reads:~ "11.45am 22/4/81 states she hurt her back pulling 2 full linen trolleys apart but pressure of work stops her waiting to see Dr." The appellant had made a number of complaints of pain in the neck. I note three of them. On 11 November 1974 it was noted that she had pain in the back of the neck and down the left shoulder, while on 22 April 1979 it was noted that she had pain in the left side of the neck and left loin pain with no radiation for 3 hours. A note for 27 May 1981 reads:- "Pains neck & head. Wakes her up at night. Same related to (movement). Describes tight band around head. Pain on extension & R rotation. See prev. X-rays - physio, incr. Tofranil at night, Aspalgin." -17- I set out also the entry relating to the incident out of which the appellant's claim arises. It bears date 4 November 1981 and reads:- "Sore back after pushing trolley, tender about T6-8. Aspalgin, linfiment] methyl sal[icylate] - X-ray." Dr Appel was cross-examined, I set out two questions and her answers to them:- "Dr, on these occasions when Mrs Z2wickert came to see you these were complaints where she came and said, 'I've got a sore back from pushing and pulling these laundry trolleys', is that right? --- No. She came once and actually saw the sister but did not wait to see me and said she had hurt herself pulling the trolley. The other time she came and said, 'I have a sore neck, I have a sore back, I have a headache, I have a pain somewhere else.' It was different. Did she tell you these occasions she came when she had been doing heavy work? --- No. {The word "time" underlined should obviously read "times".) As far back as 1976 x-rays disclosed minor degenerative changes to most of the dorsal discs of the appellant's spine. An x-ray report of 24 August 1977 in respect of her cervical spine indicated slight narrowing of the C5-6 disc space which might have indicated a disc lesion at that level. The appellant's subsequent history would seem to show that it did not. An x-ray of the lumbo-sacral spine on 8 December 1980 showed a mild lumbar scoliosis convex to the left with wedging of the left side of the body of L5 and cystic degenerative change in the left hip. Dr Appel was also asked whether by February 1981 she 'would have had a view as a result of x-rays that the ~18- appellant had a back susceptible to injury by heavy work (the appellant was aged almost 52 at the date of the accident of 4 November 1981). She replied:- "She had a minor change in her back, which is a very common thing in anyone her age, and to (sic) that way she was more susceptible." Except for the incident in April 1981 none of the complaints about back or neck seems to have been attributed by the appellant to her work or to strain of any kind. None of them seemed to cause her to take time off from work for when Dr Appel was asked, "She did not appear to have had time off from work when she came to you about these things, is that right?", she replied, "No". There is no suggestion in the evidence that the complaints made to Dr Appel were of a kind which should have led her to inquire of the appellant what was the nature of her work so that its effect on her various conditions might be assessed. Dr Appel was asked in examination-in-chief a number of questions which, with her answers, I set out:- "Doctor, throughout the notes contained in the three exhibits, do you agree that there are numerous consultations in relation to complaints of neck ache, headache, head pain? --- Yes. Did you over the years allocate any cause for those complaints? --- I considered a lot of them were due to tension. [There are again numerous references to [sic] the notes to prescriptions for tryptanol and toptranol, is it? --- Tofranil. A similar drug to tryptanol? --- Yes. How would you describe Mrs Zwickert's anxiety state throughout the period? --- I did not see Mrs Zwickert when she was originally an incorrect view of the appellant's several conditions. -19- prescribed the tofranil. That is an anti-depressant. I would describe her as an anxious person needing help and reassurance from time to time. Was that always the case over the years of seeing her? --- What do you mean? Was she like that every time I saw her? Yes, every time or some of the time? --- A large percentage of the time. There are references in the notes to gynaecological problems ending up in surgery, I think, on a couple of occasions? --- Yes. I mean, that is not tension, that was different. Were those problems likely to leave Mrs Zzwickert with any continuing physical difficulties or discomforts? ~-- There is a complicated answer to this. She had a condition of her uterus which was cured by a hysterectomy. She also had difficulty with her bladder, which was not cured by the hysterectomy, and she still had a disability from that. Were they disabilities likely to interfere with her capacity to work on in the future? --- She had worked with that disability for a very long time without letting it interfere. Are you able to say whether or not it may have interfered in the future? --- I cannot see that it would have got any worse. Some people would not have coped as well as she did with it at the time, but she coped for almost as long as I knew her with it. Was this anxiety state that the records indicate you saw her about fairly regularly a likely problem for her in the future if she had not gone off work as you understand she has? --- It was a constantly recurring problem, and I would be surprised if it went away. How it would progress, I do not think you could say." There was no suggestion that Dr Appel was taking To the above evidence should be added the appellant's evidence that she hurt herself many times or -20- again that she hurt herself quite a few times with the kind of work that she was doing, always handling heavy things. In the claim for compensation she said:~- "I hurt my back while pulling a troliey full of linen. Over a period of time due to lifting and pulling I have suffered back pain. I have never put in a claim for compensation." In cross-examination she was asked the following questions and gave the answers recorded:- ",.. you have agreed, have you not, that you went to see the staff doctor on a number of occasions before the accident you have told us about in this court? --- Yes, sir. «e+ complaining about pain in your back? What I am asking you is did those episodes of pain in your back, the ones prior to the November 1981 incident, come around as a result of something you had done, lifting something, pushing something, straining on ! something? --- It could have. . Or the other thing I am putting to you: did those pains in your lower back just seemingly come on without anything physical happening to cause them to come on? --- No. So you say that the pains in your back - your ' low back - you had had before November 1981 came on as a consequence of some physical effort on your part? --- Yes, --. But you cannot tell us now what those particular episodes of physical effort causing pain in your back were; is that the situation? -—-- Every day you have occasion to hurt - to turn - I do not want to use that - every day over there. It is hard work, very, very hard physical work over there and you hurt yourself and you do not - you keep on doing your work. I am confining this series of questions, you understand, solely and wholly to pain in your lower back. Now, can you remember what happened to you before November 1981 by way of physical strain or effort which gave rise ! to pain in your back? --- No, sir, I do not ' know. I do not. relevant condition. -21- «++ All you know is that you had had a number of pain (sic) in your lower back before November 1981? --- I hurt my neck; I hurt my eee Well, are you saying that while you can remember having pain in your lower back before the incident you have told us about you cannot remember how that pain came on in your lower back? --- I just do not know. I just do not know. «+. Now you had many episodes, did you not —- again I am talking about before this injury - where you had pain in your neck? --- Yes. Yes? --- That came after lifting trolleys - not trolleys - bags, putting bags down from the ~ full bags from a trolley. Well - and again I am not pinning you down to precise dates - would you agree with me that on many occasions you went to the staff Goctor complaining about pain in your neck? --- After I hurt my neck, after the first time." I have referred to what seems to me to be the evidence concerning the appellant's medical In Paris v. Stepney Borough Council [1951] 367 at p.375 per Lord Simonds said:- "... an employer owes a particular duty to each of his employees. His liability in tort arises from his failure to take reasonable care in regard to the particular employee and it is clear that, if so, all the circumstances relevant to that employee must be taken into consideration." In the same case Lord MacDermott said at p.388:- "It is no less clear that the duty is owed to the workman as an individual and that it must be considered in relation to the facts of each particular case." A.C. -22- It follows that the employer's duty of care must be related to the circumstances of each particular employee. Only one of the injuries recorded earlier than 4 November 1981, that of 22 April 1981, is noted as having to do with work. Even if that unjury had been brought to the attention of the most prudent employer, it would not, in my opinion, have imposed upon him any obligation to do anything about the appellant's working conditions. The report of the injury is admittedly very like the description of that recorded on 4 November 1981 but it does not indicate that excessive weight of the trolleys caused the pain. It seems to have been treated as minor. So little did the appellant make of it that she did not wait to see Dr Appel who apparently was absent when she reported it to the Staff Clinic and there is no evidence of any subsequent attendance at the Staff Clinic in respect of it. The report seems to me to have been of the sort that an employee, conscious of her rights under workers' compensation legislation, might make. I note that in opening the appellant's case at the trial, her counsel, referring to the injury out of which her claim arises, said:- "She had occasionally had aches and pains in the back before but nothing at all like this and she had never had any trouble with her back in the sense of not finding she could cope with her work before." In these circumstances, it seems to me that it was not incumbent upon the respondent to take any particular action and that none of the particulars of negligence -23- alleged by the appellant was made out. The learned trial Judge referred to a passage from the judgment of Mason J, as he then was, in The Council of the Shire of Wyong v. Shirt & Others (1980) 146 C.L.R. 40 at pp.47-8 which reads:- "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it 1s 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 and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which 1s not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors." While, as the learned trial Judge correctly perceived, the appellant's injury was foreseeable, the Magnitude of the risk and the likelihood of its occurring in the circumstances of her working conditions would, in my opinion, have been seen by a prudent employer at any time before 1t happened as negligible. act -24- The appellant's previous medical history, although in a sense known to the respondent, was not, in my opinion, such as to indicate that she was employed in doing work which carried with it more than that slight risk of injury which any job involving pushing and pulling necessarily does. Warren v. Coombes (1979) 142 C.L.R. 531 entitles an appellate court to exercise its own judgment on primary facts where there is no dispute about them. But I do not think that the facts found in this case lead to a conclusion that the learned trial Judge erred in his approach to the second of the two principal questions which he decided, particularly when regard is had to his findings on the first. These findings seem to accord with the evidence before him and, in my opinion, Warren v. Coombes does not entitle this Court to take a contrary view when the evidence of the respondent's alleged negligent conduct is so scanty. Grounds 3 and 4 fail I think on the basis that the system provided by the respondent was a reasonable one in the circumstances, In my opinion the appeal should be dismissed. 9 eae a ne ree - I certify that this and thed three preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Kel ly Associate Datedt 20 ArRic (GEE IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 19 of 1987 DISTRICT REGISTRY wwe ww GENERAL DIVISION BETWEEN : CECILE ZWICKERT Appellant AND: CAPITAL TERRITORY HEALTH COMMISSION Respondent CORAM: Sheppard, Kelly and Neaves JJ. DATE: 20 April 1988 REASONS FOR JUDGMENT The essential facts concerning the incident on 3 November 1981 when the appellant suffered an injury to her lower back in the course of her employment with the respondent are set out in the judgment of Sheppard J. and I need not repeat them. I agree, for the reasons given by Sheppard J., that the learned trial judge was correct in holding that the appellant had not established that the respondent had failed to provide a reasonably safe system of work. The appellant rested her case before the trial judge upon an alternative basis, it being alleged that knowledge of the appellant's susceptibility to back injury was to be imputed 2. to the respondent so that those in charge of the appellant's work activities should have made allowance for such susceptibility in taking care for her safety. The only evidence before the trial judge relevant to the question whether the appellant had a susceptibility to back injury and whether the respondent should be taken to have had knowledge of that susceptibility consisted in entries made in records kept by the Staff Clinic of the Woden Valley Hospital in relation to visits to the clinic by the appellant during 1980 and 1981. Kelly J. has set out the available evidence in detail. No evidence was given by the appellant as to the circumstances surrounding the incidents the subject of such entries. In my opinion, the evidence falls far short of establishing that the appellant was susceptible to back injury or that the respondent should have imputed to it knowledge that she was so susceptible. I would dismiss the appeal with costs. I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. ssociate Dated: 20 April 1988 eat Counsel for the Appellant: Solicitors for the Appellant: Counsel for the Respondent: Solicitors for the Respondent: Dates of hearing: Place of hearing: Mr. P.L.R. Sheils, Q.C. with Mr. H.J. Marshall Messrs. Crowley & Chamberlain, Canberra Mrs. Priscilla Flemming, Qg.c. with Mr. R.E. Williams The Australian Government Solicitor, Canberra 4 and 5 November 1987 Canberra