JUDGMENT No. wn Suboul wd swab IN THE FEDERAL COURT OF AUSTRALIA _) AUSTRALIAN CAPITAL TERRITORY ) DISTRICT REGISTRY ) GENERAL DIVISION ) No ACT G42 of 1994 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN SMK PTY LIMITED (formerly CANBERRA ROOE TRUSSES PTY LIMITED Appellant AND MILAN KRAMER Respondent CORAM Gallop, Neaves and Gummow JJ DATE 3 November 1994 - i DEC ne PLACE Canberra FEDERAL COURT OF AUSTRALIA PRINCIPAL CORRIGENDUM Amendments to Reasons for Judgment delivered on 3 November 1994 1 Cover page line 10 - "negligent injury" should read "neck injury" 2 Cover page date should be "3 November 1994" instead of "2 November 1994" 3 Order page date should be "3 November 1994" instead of "2 November 1994" 4 Page1 date should be "3 November 1994" instead of "2 November 1994" 5 Page 15, line 9 "pay he appellants" should read "pay the appellants" B Barrack Associate to Galiop J 1 December 1994 Ot JUDGMENT No. a S3bomad ZY CATCHWORDS APPEAL against judgment for damages for personal injuries sustained by a worker against his employer - whether evidence established negligence on the grounds of failure to warn and instruct the worker - no duty to warn or instruct - no causal connection between failure to warn or instruct and the injuries sustained NEGLIGENCE - duty to maintain safe system of work - failure to warn or instruct re unusual or unexpected risks DAMAGES ~ sufficiency of evidence to support finding of negligent injury Raimondo v State of South Australia (1979) 23 ALR 513 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 McLean's Roylen Cruises Pty Limited v McEwan (1984) 54 ALR 3 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 Perkovic v McDonell Industries Pty Ltd (1987) 45 SASR 544 ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY SMK PTY LIMITED (formerly CANBERRA ROOF TRUSSES PTY LIMITED v. MILAN KRAMER No. ACT G42 of 1994 Coram: Gallop, Neaves and Gummow JJ. Date: 2 November 1994 Place; Canberra. 14 NOV 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTAY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION aera ) ) No. ACT G42 of 1994 ) ) ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: SMK PTY LTD (formerly CANBERRA ROOF TRUSSES PTY LIMITED) Appellant AND: MILAN KRAMER Respondent MINUTES OF ORDER JUDGES MAKING ORDER: Gallop, Neaves and Gummow JJ. DATE OF ORDER: 2 November 1994. WHERE MADE: Canberra. THE COURT ORDERS THAT: 1. 2. Note: The appeal be allowed. The judgment of the Supreme Court of the Australian Capital Territory be set aside. In lieu thereof judgment be entered for the defendant with costs; and The respondent pay the appellant's costs of the appeal. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) No. ACT G42 of 1994 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: SMK PTY LIMITED (formerly CANBERRA ROOF TRUSSES PTY LIMITED) Appellant AND: MILAN KRAMER Respondent CORAM:: Gallop, Neaves and Gummow JJ. DATE: 2 November 1994 CANBERRA REASONS FOR JUDGMENT THE COURT: This is an appeal by a defendant employer from a judgment of a single Judge of the Supreme Court of the Australian Capital Territory in favour of a plaintiff worker in respect of injuries sustained by the worker on 2 July 1981 in the course of his employment at the employer's premises in Fyshwick in the Australian Capital Territory. The employer manufactured roof trusses. The worker was employed as a machinist with the job of cutting to appropriate size and preparing various lengths of timber. The worker's claim was for damages for personal injuries sustained by him through the negligence of the employer. He had been granted an invalid pension early in 1984. By the statement of claim which accompanied the writ of summons issued on 30 June 1987 the worker pleaded several particulars of negligence and succeeded in his action on the trial judge's finding of a failure by the employer to give any instruction or warning to put off-cuts of timber into the bin provided, and failure to give any instruction to saw operators to ensure that the floor around their work area was clear of off-cuts before going to get more timber, or any warning that failure so to do could render that task unsafe. The particulars of negligence as pleaded included the following: (e) failure to provide or maintain a safe or proper system of work; (h) failing to warn the plaintiff of the dangers to him of lifting and carrying heavy hardwood; (i) failure to instruct the plaintiff adequately or at all in the safe means of lifting and carrying a heavy object; (k) failing to maintain adequately or at all the Plaintiff's workplace to ensure that it was free from wood left on the floor and/or otherwise in the path of the plaintiff as he went about his work; and (1) failing to warn or otherwise advise the plaintiff of the existence of wood left on the floor in the area of the plaintiff's work. Having found in favour of the worker on the issue of liability, his Honour then assessed damages as follows: General damages $100,000.00 Interest on amount apportioned to past 18,060.00 Past economic loss 216,000.00 Interest thereon 214,070.79 Future economic loss 173,500.00 Past out-of-pocket expenses 2,678.80 Interest thereon 2,654.88 Future medical and medication expenses 3,200.00 Total $730,164.47 In arriving at his findings of fact about how the subject accident occurred, his Honour accepted the worker's description of the incident. The worker had said in evidence that he attended work at his usual hour of 6.00 am on Friday, 2 July 1981 (although 2 July 1981 was in fact a Thursday). The factory floor had been clear and clean on his arrival. At about 10.30 am he went to obtain more timber. He was carrying a length of timber, being 7-8 metres in length and weighing 40-60 kilograms, to his work bench. Close to the work bench his foot descended on to a piece of timber off-cut from one of the grooves cut routinely in the timber truss components by one of the saws the worker used. His ankle turned and he stumbled. The timber twisted off his left shoulder as he lost balance. He dumped it on the work bench, suffering a sharp pain in his back in the course of this activity. Before finding the failures to warn and instruct to which we have already referred, his Honour appears to have rejected other possible causes of the subject accident. In respect of failing to provide mechanical help, his Honour said it would have been possible to deliver individual timbers to the worker's work bench by gantry crane, but it was agreed ae that such a course would have been far too slow to be practicable. In respect of failure to provide manual help, his Honour said that it was not alleged that the carrying of such timber of the size and weight referred to was itself unsafe. As to the failure adequately to clean the area, his Honour found that given the number of work benches involved in cutting timbers, it would have been impracticable for the cleaner to have kept the floors around the saws and associated work benches free from off-cuts at all times. As to the failure to warn and instruct, his Honour said that it was apparent that if off-cuts, some small, some large, were permitted to lie on the floor of the factory, then there would be a serious risk of injury to a worker concentrating on carrying a large and heavy length of timber. Not only is the weight on a descending foot much greater, but the consequences of a loss of balance are also much greater. His Honour must be taken to have concluded that the employer was under a duty to give a warning or instruction to the workers to see that the path to the stock of timber from their work bench was free of off-cuts and any other substances likely to disturb their balance whilst carrying timber to it. In the absence of any such instruction or warning, the system of work was unsafe, the matter being left to the operator's own judgment. His Honour concluded that the means to correct that situation was simply to give proper instructions to operators and to reinforce those instructions from time to time by appropriately placed notices or otherwise. The primary submission on behalf of the employer on the hearing of the appeal was that his Honour erred in finding that the system of work was unsafe in that the employer had failed to warn the worker of the dangers of off-cuts being left on the floor. The employer contended that there was no necessity to warn the worker in all the circumstances. The worker himself had acknowledged what commonsense would dictate, namely that off-cuts were to be placed in the bins provided. Further, he knew that the system that he adopted was to throw the off-cuts in the bin. In his evidence the worker had said that there was a rubbish bin into which off-cut timber was to be thrown. Later in his evidence in chief he said that the off-cuts always went in the bin but sometimes it happened that the off-cuts did not go in the bin and he had no time to clean up because they were always very busy. He said that sometimes a piece would fall on the floor and that he did not have time to look all the time if there was one piece of wood on the floor. In cross-examination he agreed that operating the machine produced numerous off-cuts and that he would throw them in the bin but sometimes they did not go in the bin. He om. - ate > waS aware that from time to time there were off-cuts of wood on the floor and it was his practice to clean the floor. Later in his cross-examination the following questions and answers appear: "Well, it happened all the time that it went on the floor and you said you cleaned it up yourself, is that right? ---I clean because nobody clean. If I no clean up I will break leg every day. All right, but you knew, I suggest to you, that the probability after you'd been cutting timber, that there would be offcuts on the floor, is that correct?---Yes." Based upon that evidence, it was submitted on behalf of the employer that the worker knew what the system was and needed no further instruction or warning. Nor could it be said that any instruction or warning would have avoided the accident because, as his Honour observed in the course of addresses, it was "pretty obvious" that the off-cuts of timber should go in the bin and that "if one is walking around, particularly carrying a timber that restricts your vision, as it might well, to the left, if you can imagine yourself carrying such a timber, certainly it would restrict your vision of the floor in some areas. You would think that it would be obvious to you that you do need to make sure the floor is clear of off-cuts". The worker was not unqualified or inexperienced. His date of birth is 20 July 1939 (almost 42 years at the date of the accident). He was born in Croatia and was trained fe there as a carpenter. He worked in Yugoslavia and Italy as a carpenter for 30 months before coming to Australia in 1963. He started work with the employer on 11 February 1981. Prior to that he had been in the carpentry and joinery industry as an employed carpenter and on his own account. They are relevant matters in respect of the duty of the employer to warn and instruct the worker about obvious dangers. The evidence shows that the worker well understood the risk of injury if he stepped on an off-cut of timber while carrying a length of timber from the stockpile to his machine. That is the sort of risk which falls into a sphere where it is legitimate to leave to a skilled workman the decision of how to resolve any particular difficulty associated with the risk which may arise in the course of his work. Nevertheless, it does not follow that no instruction needs to be given because the worker was a skilled employee. It all depends on the circumstances. It is well recognised that when an employee is supplied with the appropriate equipment and means for carrying out the task there will be many occasions where simple or routine tasks can be left to the discretion of the employee without such instruction (Raimondo v State of South Australia (1979) 23 ALR 513; Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 and McLean's Roylen Cruises Pty Limited v McEwan (1984) 54 ALR 3). In McLean at p.7, Gibbs CJ, with whom Mason, Wilson, Brennan and Dawson JJ agreed, said: "In O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229, the court said: 'The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.' It is not implied by this statement that an employer is never under a duty to warn his employees of risks which are usual or expected; for example, if it is apparent that the employees are making a practice of ignoring an obvious danger, a warning may be necessary. No detailed rules can be laid down; the question simply is whether in all the circumstances of the case, the taking of reasonable care by the employer involved the giving of a warning: see the discussion by Mason J. in Raimondo v South Australia (1979) 23 ALR 513 at 517-8." In Raimondo v State of South Australia, supra, Mason J., as he then was, discussed the relevant principles in the following passage: "The duty of the respondent as an employer was to take reasonable care for the safety of its workmen or, as it was expressed by Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25, '''to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. In the performance of this duty it was the responsibility of the respondent to ensure that all reasonable steps were taken to provide a reasonably safe system of working. In general it is for an employer to devise and instruct his servants to follow a system of work which will obviate unexpected and unusual dangers in the undertaking in which they are engaged. This responsibility is not confined to unexpected and unusual dangers; in appropriate cases it ve extends to dangers which are obvious both to him and to his workmen, as the decision in Hamilton v Nuroof (WA) Pty Ltd itself demonstrates: see especially at 24-6, 33- 4. In General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 193-4; [1952} 2 All ER 1110 at 1117, Lord Reid said: 'On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not a sufficient answer. Where the problem varies from job to job it may be reasonable to leave a great deal to the man in charge, but the danger in this case is one which is constantly found, and it calis for a system to meet it. Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing. His Lordship's comments were directed to the hazardous practice of cleaning external windows whilst standing or crouching on the sill, at a considerable height above the ground. I do not read these remarks as enunciating an absolute proposition that an employer is never entitled to rely on the skill and experience of his workmen in countering a risk which arises in the course of their employment. The remarks need to be understood in the light of the well-accepted statement that the scope and extent of the employer's duty depend very much on the circumstances of the case." Applying those principles to the present case, it must be said that for an experienced carpenter the task which the worker had to perform was simple and uncomplicated. He had to carry a length of timber from the stockpile to his machine, a task which he completed a number of times each day without mishap. He did not need any further instruction or caution and the failure to give any further instruction or caution did not unreasonably expose him to the risk of injury. ' os Ln. Senn The risk that he would, in the course of performing that simple task, step on an off-cut of timber which had come, on the evidence, from his own operations at his machine, and which he knew was likely to be on the floor, was slight and the possibility of injury by doing so was as apparent to him as it was to the employer. Furthermore, there was no probability on the evidence that the worker would have taken any greater care for his safety had he been given an instruction or warning of the kind suggested: Duyvelshaff v Cathcart & Ritchie Ltd (1973) i ALR 125 at 142-3 per Mason J.; Perkovic v McDonell Industries Pty Ltd (1987) 45 SASR 544 at 554 per von Doussa J. He simply failed to keep a proper lookout. His injury in those circumstances was the result of his own fault and cannot be properly laid at the door of the employer. In other words, a failure to warn or instruct was not shown on the evidence to be a cause of the worker's injury. Hence a finding of negligence against the employer could not be upheld. Accordingly, it is not necessary to consider the employer's submissions in relation to the assessment of damages, but in'deference to counsel's arguments on damages, we shall review briefly the trial judge's assessment and the evidence in support thereof. If the evidence is not sufficient to justify the trial judge's assessment of damages . in any respect, the employer seeks a re-assessment of damages by this Court or, alternatively, that the matter be remitted for retrial on the issue of damages. Neither course would be appropriate because of our conclusion that the trial judge was wrong in his conclusion that the employer was guilty of negligence. The award of damages was based upon an acceptance by his Honour of pain in the neck and low back arising from the subject accident and which rendered the worker totally disabled for work purposes. His Honour said: "It seems to me that, given the history of complaints of neck and back pain it is likely that a back strain was suffered by the plaintiff in the accident together with some minor damage to the cervical spine. I note that [there] was no prior history of neck or back pain. The gradual worsening of neck pain and the detection of degenerative change in that area seems to me consistent with that degeneration being triggered by the accident at work. The lack of back pathology detected may mean that there is as yet undetected disc damage but it seems more probable that it is a functional overlay which has prevented recovery and entrenched chronic pain. It is clear that no medical opinion would support' the likelihood of any significant improvement." In his particulars of injuries set out in the statement of claim, the worker listed only injury to the back and injury to the left leg. He did not particularise any injury to the neck. The same particulars were provided in the filed amended statement of particulars. As part of the particulars of disabilities, however, the worker did identify neck pain and headaches in both the statement of claim and the statement of particulars. ate ass When counsel for the worker opened the case to the trial judge, he made no mention of a claim of neck pain or neck injury attributable to the accident on 2 July 1981. Counsel stated that it was the low back pain which prevented the worker from working. When he gave evidence, the worker did not complain of a neck injury or any sort of neck pain suffered in the subject accident. He said that, having stepped on the block of wood, he immediately felt very, very hot, sharp pain to his back. He went on to say that the medication prescribed by his general practitioner four days after the accident was for his back pain. That evidence was consistent with the evidence in the form of a report from the general practitioner of complaint of back injury and treatment for that condition for the next four years. The worker's first mention in evidence of neck pain was when he was asked about whether there had been any change in the pain in his back since the accident. He said that he got pain all the time and that the pain came in the neck also. He first noticed the pain in the neck "maybe after two years after lower back". Further in his evidence he said that the neck did not happen at the same time as the back. It was later when his neck started to pain. He went on to say that he was not seeking money for his neck pain. In a signed statement dated 20 December 1984 the worker referred only to back pain and made no mention of neck injury or neck pain. The worker was examined by Dr _ W.J. Coyle, orthopaedic surgeon, on 6 February 1986 at the request of his own solicitors. Dr Coyle took a history of the worker having recently had some lower cervical and upper dorsal pain which Dr Coyle did not go into because it was not related in time to the accident. The worker was next seen by Dr Coyle on 20 June 1991 and Dr Coyle reported that he was very anxious on this occasion to talk about his neck pain and headaches, which he said were more of a problem than his low back pain. He insisted to Dr Coyle that those conditions must be related to the accident at work, which Dr Coyle did not accept because the symptoms, starting five years after the accident, could not easily be related to that event. The worker did not accept that. In his evidence the worker conceded that he had given an accurate history of the onset of neck pain to Dr Coyle. The only evidence linking the worker's neck pain to the accident was in the history given to Dr John R. Corry, consultant in rehabilitation medicine, when he examined the worker on 26 April 1985. He told Dr Corry that at the time of the accident he was able to continue working for the next two hours but pain in the lower back increased and he also developed pain in the neck region and headache. Dee oe There is much force in the submission on behalf of the employer that that history should have been disregarded because it was not otherwise proved in evidence and was inconsistent with the worker's sworn evidence. The evidence simply did not support any claim of neck pain or symptoms arising from the accident. In fact, there was evidence to the contrary from Dr Coyle. His Honour was in error in finding that Dr Coyle "was unaware of the almost immediate onset of neck pain and occipital pain following the accident". There was in fact no evidence of any immediate onset of any such pain. His Honour was also in error in finding that the worker injured his neck in the accident and that the gradual worsening of neck pain and detection of degenerative changes was consistent with the degeneration being triggered by the accident at work. As previously stated, such an assertion was never made in the pleadings, in the opening by counsel for the worker, or in the evidence. On the contrary, there was evidence that any degenerative changes were not related to the accident. Dr Corry' stated in his report that any deterioration in the worker's symptoms related to natural progression of degenerative disease. It follows that the assessment of damages, based as it was upon disabling neck and back pain from the date of the accident, was erroneous to a significant degree. That error would be sufficient to require re~assessment of the damages. This Court on appeal would have been in no position to assess those damages and, subject to the question of liability, the matter would have had to be remitted to the Supreme Court for rehearing. The orders of the Court are that the appeal is allowed, the judgment of the Supreme Court is set aside and in lieu thereof it is ordered that judgment be entered for the defendant with costs. The respondent must pay he appellant's costs of the action in the Supreme Court and of this appeal. I certify that this and the preceding fourteen pages are a true copy of the Reasons for Judgment herein of the Court. Dated: 2 November 1994 {fy i] \ - Altisrrone Gh Associate Counsel for the Appellant 3 Mr P. Deakin QC and Mr M.K. Minehan Solicitors for the Appellant : Vandenberg Reid Counsel for the Respondent Mr G. Lunney Solicitors for the Respondent Legal Aid Office (ACT) Date of Hearing : 31 October 1994 on Date of Judgment 2 November 1994