Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, CALLINAN AND HEYDON JJ

ROBYN VANESSA LAYBUTT APPELLANT

AND

GLOVER GIBBS PTY LIMITED

T/AS BALFOURS NSW PTY LIMITED RESPONDENT

Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd

[2005] HCA 56

29 September 2005

S47/2005

ORDER

1. Appeal allowed.

2. Set aside the judgment and orders of the Court of Appeal of the Supreme Court of New South Wales dated 3 March 2004 and in place thereof order that the appeal to that Court be dismissed.

3. The respondents to pay the costs of the appeal to the Court of Appeal of the Supreme Court of New South Wales and of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation:

M J Neil QC with R I Goodridge for the appellant (instructed by Firths –The Compensation Lawyers)

B W Walker SC with R C Beasley for the respondent (instructed by Leigh Virtue & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Laybutt v Glover Gibbs Pty Limited t/as Balfours NSW Pty Limited

Negligence – Duty of care – Employer and employee – Breach – Where employee requests instructions – Employer's duty to provide instructions.

Practice and procedure – Civil trial by jury – Whether trial judge should have entered a directed verdict­ – Sufficiency of evidence to sustain verdict – Application of common knowledge and experience by jury to question of negligence ­­– Circumstances justifying reversal of a jury's verdict by appellate court.

1. GLEESON CJ. I agree that the appeal should be allowed for the reasons given by Gummow, Callinan and Heydon JJ, and that consequential orders should be made as they propose. 2. A question for judgment at the trial was the reasonableness of the response, by the representative of her employer, to the appellant's requests for information as to how to carry out a particular procedure. The response was, in effect, that she should work it out for herself. She suffered an injury in the process of trying. There might be some workplace procedures for which that could be an adequate response. There are others for which it clearly would not. In the present case, the jury heard evidence of the nature of the task, which involved assembling an item of equipment. Having been told what the task was, the jury were well able to decide whether it was reasonable of an employer to leave an employee to work out for herself how to perform it. That is what juries are for. 3. McHUGH J. The only issue in this appeal is whether there was evidence upon which a jury could reasonably find that the appellant suffered injury as the result of the respondent's negligence. 4. The respondent had employed the appellant as a pastry cook for about six weeks when her "team leader" told her to reassemble a machine used to make doughnuts. Some parts of the machine had just been washed. The machine was several feet high and had five cylinders in a line. Inside each of these cylinders was a smaller cylinder. Behind the top of each inner cylinder were two lugs. When fitted into grooves on the outer cylinder, the lugs joined the inner and outer cylinders together. The outer cylinder had sharp edges and, as a result of washing, was slippery. 5. The appellant told the team leader that she did not know how to reassemble the machine. The team leader replied: "Just give it a go." The appellant received no further help from the team leader or any other employee of the respondent. She received no oral instructions, no instruction manual and no demonstration as to how to perform the task. The production manager of the respondent testified that the response of the team leader was not a "proper or appropriate induction[1] – proper appropriate task specific training". 6. After the team leader's direction, the appellant commenced to reassemble the machine. In the course of doing so, she suffered injury to her finger and arm when an outer cylinder slipped and fell on her right hand. 7. In the District Court of New South Wales, a jury found that the appellant had been injured as the result of the negligence of the respondent. The jury assessed her damages at $471,201 plus costs. However, the Court of Appeal of the Supreme Court of New South Wales set aside the appellant's verdict and entered a verdict for the respondent. The Court of Appeal held that there was no evidence of negligence upon which a jury could reasonably find for the appellant. The Court of Appeal held that there was no evidence that the respondent should have given the appellant instructions or what they should have been or whether, if given, the appellant would have followed them and, if she had followed them, whether they would have avoided her injury. 8. In my opinion, it was open for the jury, acting reasonably, to find that the appellant sustained injury as a result of the respondent's negligence. With great respect to the learned judges of the Court of Appeal, the jury's verdict for the appellant was hardly surprising. Indeed, special leave to appeal was granted – although the case turned on its own facts – because it was strongly arguable that the setting aside of the appellant's verdict constituted a miscarriage of justice in the particular circumstances of the case. 9. A reasonable jury could find that the size of the machine, the sharp edges and slipperiness of the outer cylinders, the appellant's inexperience, and her request for guidance convincingly established that the injury she suffered was reasonably foreseeable. Nearly 50 years ago, this Court pointed out that, in a negligence action, a jury does not have to determine whether the defendant should reasonably have foreseen "the precise manner" in which an injury occurred. The jury "ha[s] to consider only whether it was reasonable to foresee in a general way the kind of thing that occurred"[2]. 10. However, as I pointed out in Swain v Waverley Council[3], to succeed in a negligence action, the plaintiff must do more than prove a reasonably foreseeable risk of injury. To succeed, the plaintiff must also show that the exercise of reasonable care by the defendant would have avoided, or reduced the extent of, the injury. In cases concerned with operations, processes, systems and machinery that are complex, the jury will seldom be able to find for the plaintiff unless the plaintiff tenders evidence as to the precautions that were reasonably available to the defendant and which would have avoided the plaintiff's injury. As Barwick CJ pointed out in Maloney v Commissioner for Railways (NSW)[4], evidence of the practicability of a proposed alternative course or safeguard "is essential except to the extent that [it is] within the common knowledge of the ordinary man." 11. The slipperiness and sharp edges of the outer cylinder made it a potential source of danger unless the assembler knew of the danger and acted carefully in assembling the machine. But, despite the danger, reassembling the machine was not a complex process or operation. It could be done safely if the assembler, being conscious of the risk, held the cylinders firmly enough to prevent them slipping. So much was implicitly conceded by the respondent's cross‑examination of the appellant. It was put to her that "it was just simply a situation where you just didn't hold [the cylinder] tight enough"? If the team leader had pointed out the danger and told her to hold the cylinders firmly or given her a demonstration as to the correct way of doing it, it seems unlikely that her injury would have occurred. At all events, a reasonable jury, using its experience and knowledge of the world, could find that a reasonable employer would have given such instructions and, if they had been given, the injury would not have occurred. 12. The production manager had no doubt that the team leader's response was plainly inadequate. The jury could reasonably interpret his evidence as implying that instructions must be given to one of the respondent's workers who tells a supervisor that she does not know how to assemble this particular machine. His evidence denies any suggestion that the task was so simple that even an inexperienced worker needed no instruction. Hence the present case cannot be equated with Electric Power Transmission Pty Ltd v Cuiuli[5], where this Court held that an employer was not negligent in failing to instruct the caretaker of a construction camp how to use a tomahawk to cut up pieces of light bush timber for use in a fuel stove. 13. The failure of the appellant to tender evidence of the precautions that, if taken, would probably have avoided her injury was a surprising and, by any standard, a risky course of forensic conduct. But despite that failure, it was open to the jury, exercising its commonsense and knowledge of the world, to find that the respondent was guilty of negligence in failing to give the appellant instructions or a demonstration concerning the reassembly of the machine.