MICEVSKI v OTIS ELEVATOR CO PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, MAHONEY and CLARKE JJA 5 February 1988, 11 May 1988 [1988] NSWCA 94 NEGLIGENCE — employer's liability — crane driver operating overhead moving crane with hook — struck by timber dislodged by moving crane — worker sues in negligence and for breach of s38(c) and s40 Factory Shops and Industries Act 1962 — trial judge dismisses claim — held: (allowing appeal from Wood J) (1) Appellant was entitled to succeed in negligence on the facts proved based upon the foreseeable risk of injury in the system of work of failing to secure objects in or near to the path of the moving crane mechanism and on the basis of the casual act of negligence of a fellow employee in putting timber, unsecured, near to the passage of the overhead crane parts — (2) Respondent failed to prove contributory negligence — (3) Assessment by the Court of Appeal of damages inappropriate — (4) Matter returned for retrial limited to damages. FACTORIES — duty to ensure that goods and articles are "stored and stacked" to ensure stability and to prevent any collapse of any such goods or articles — whether Factory Shops and Industries Act 1962, s38(c) applied — held: matter unnecessary to determine as injured worker is entitled to recover by common law. PRACTICE & PROCEDURE — appeal — new trial — assessment of damages trial by judge alone in the Supreme Court — whether Court of Appeal may assess damages — power to assess under s107 Supreme Court Act 1970 inapplicable — parties consent — held: unnecessary to determine whether s75A authorises assessment of damages — case inappropriate for assessment — alleged malingering and hysterical symptoms — passage of time since trial — retrial ordered. Factories Shops and Industries Act 1962, s38(a),s38(c) and s40(1). Supreme Court Act 1970, s75A, s107. Kirby P At the hearing of this appeal, and following the course which argumenttook, the appellant sought leave to amend his notice of appeal. He sought to add to the suggested misdirections of the trial judge (Wood J) on the claim based on common law negligence, his Honour's failure to find negligence on the basis that a piece of timber which fell and struck the appellant was "carelessly placed in position by an employee of the [respondent]". Casual negligence by a fellow employee Senior counsel for the respondent, properly in my view, took no objection to this application to amend. To permit amendment appears consonant with the way the appellant pleaded his case (see para 7(b) of the Statement of Claim) and the way in which the case was presented and argued at the trial. The Court is mindful of the need for care in permitting, on appeal, any enlargement of the issues which were contested at the trial. See Water Board v Moustakas (1988) 62 ALJR 209, 211. No such enlargement was involved here. The appellant was given leave to amend as he sought This amendment was important because, in my opinion and for the reasons given by Clarke JA, when viewed in this way, the trial judge erred in dismissing the claim framed in 2 UNREPORTED JUDGMENTS negligence. The evidence Warranted the conclusion that the respondent was negligent upon the basis of the casual act of negligence of its employee (for which it was vicariously liable) in creating a foreseeable risk of injury to the appellant and in failing to take steps, two of which were entirely practicable and inexpensive, to eliminate the risk of the type of injury which occurred to the appellant. There was a dispute at the trial as to whether the timber which caused the employee's injuries was struck by the hook of the crane. But that is what his Honour found. It appears to be probable that the injuries to the appellant occurred as Wood J concluded, namely that the appellant was struck by a piece of timber which had been dislodged when it came into contact with the crane or its control mechanisms as they moved along the fixed passageway. The dislodgement probably occurred as the hook of the crane mechanism was being elevated following a signal given by the appellant, using the button control which governs movement of the crane's various parts. The other hypotheses relied upon by the appellant to explain the happening of his accident, viz the exceptional length of the timber which fell or vibration of the floor caused by the moving crane, seem less likely. Having reached these conclusions, it is my view that the appellant was entitled, on the evidence, to have judgment in his favour. Contributory negligence In view of his conclusion, the trial judge did not have to determined whether the respondent had proved contributory negligence on the part of the appellant. However, the issue was certainly raised by the fourth paragraph of of the Defence and was inherent in the respondent's conduct of its case at first instance. The respondent relied upon the following grounds of contributory negligence, namely failure to ensure that the travelling portion of the crane did not strike material in its path; failing to keep a proper lookout; manoeuvring the travelling portion of the crane so that it came into contact with material and failing to remove the timber in the path of the moving portions of the crane's mechanisms. I do not consider that the kind of inattention by the appellant to the movement of the crane mechanism, described in the evidence, was shown by the respondent to amount to contributory negligence on the part of the appellant such as to warrant an adjustment of the judgment in favour of the appellant which must follow from my primary conclusion. Some risks were inherent in operating the crane in the environment of the respondent's premises as described in the evidence. Had the simple expedients been adopted as are described in Clarke JA's judgment and, more especially, had the fellow employee not placed the unsecured pieces of timber in the potential path of the moving crane hook, the timber would not have been dislodged and the appellant would not have been injured. The proper characterisation of what occurred is that it was a simple, foreseeable and readily preventable consequence of the respondent's operations being performed, repetitiously, by the appellant It was not such a departure from the appellant's obligations to the respondent, and to himself, as attracts a finding of contributory negligence. Statutory claims These conclusions obviate the necessity of determining whether Wood J erred in the conclusions he reached concerning the application of the two statutory provisions upon which the appellant finally relied at the trial. These were URJ MICEVSKI v OTIS ELEVATOR CO PTY LIMITED (Kirby P) 3 breaches of s40(1) of the Factory Shops and Industries Act 1962 and s38(c) of the same Act. In his pleadings the appellant had earlier also relied on s38(a) of the same Act; but this claim does not appear to have been pressed at the trial. On the appeal, the appellant did not press the claim based on s40. But he did press that arising from the alleged breach of s38(c) of the Act. Because, in the view I take, the appellant is entitled to succeed at common law on the issue of liability and without any discount for contributory negligence which would otherwise require resolution of the claim based on the statue, it is unnecessary in this appeal to resolve this contest between the parties. It is therefore preferable to leave it to a case in which the issue is a live one. Assessment of the damages by Court of Appeal Against the possibility of an appeal and the conclusion which the Court has reached, Wood J made a number of detailed findings on the issues relevant to the damages to which the appellant was entitled, if he were to succeed on the issue of liability. His Honour did not, however, in the conclusions which he stated, set out the judgment sum which he would have entered for the appellant upon an hypothesis of liability in the respondent Upon that hypothesis, both parties asked the Court, on the material available to it (and using Wood J's findings so far as they were relevant and helpful on issues such as the impression of witnesses) to proceed to calculate the damages payable. The Court's power to assess damages was not contested by either party. It is not, in this instance, to be found in s107 of the Supreme Court Act 1970. That section applies only to a limited class of appeals as defined in s105 of the Act. So far as appeals from a judgment entered in the Supreme Court are concerned, s107 is limited to orders for a new trial "after a trial with a jury". As the trial in the present case was conducted without a jury, any power of the Court to reassess must probably be found in s75A, with its contemplation of an appeal "by way of rehearing" (see s75A(5)). Whether, having regard to the specific and circumscribed powers of reassessment in s107 of the Act, s75A should be construed to permit an uncontrolled power of reassessment was not fully argued It is another point that can be reserved because, for a number of reasons, it is my opinion that the Court should not reassess in this case. Ihave so concluded despite the passage of time, the desirability of avoiding of further delay and costs and the desire of the parties that the Court should take that course. The principal reasons which have led me to my conclusion are the nature of the appellant's complaints, as recorded by Wood J; the real contest at the trial as to whether the appellant was consciously malingering or was the subject of involuntary hysteria attributable to his injury; the value in determining such issues conventionally ascribed to the advantage of seeing and assessing the injured person and the very great time that has elapsed since the trial was conducted in November 1985. Wood J described the issues of damages as having been "hotly contested". To do justice to both parties it would seem to me to be necessary for there to be a retrial, but one limited to the issue of damages. At such a retrial, the trial judge would have the advantage, which we have not enjoyed, of seeing the appellant. As the retrial would be a fresh hearing, the trial judge would also have the advantage of up-to-date information concerning the appellant's employment history since the first trial and the progress, if any, in his disabilities, including the symptoms said to be hysterical. For these reasons, the orders which I favour are:- 4 UNREPORTED JUDGMENTS 1. Appeal allowed. 2. Judgment in favour of the respondent (defendant) entered by Wood J on 25 November 1985, set aside. 3. In lieu thereof, enter judgment in favour of the appellant (plaintiff). 4. Proceedings returned to the Common Law Division for retrial, limited to the issue of damages. 5. The respondent to pay the appellant's costs of the trial and of the appeal. Mahoney JA I agree with the judgments of the President and of Clarke JA. Clarke JA The appellant, who was the plaintiff at the trial, has appealed froman order of Wood J directing the entry of judgment for the defendant. In the action which led to that order the appellant claimed damages for injuries he received during the course of his employment as a materials handler on 4 March 1981. The factual circumstances surrounding the incident during which the appellant was injured may be shortly summarised. His work required him to operate, by means of a pendant control, an overhead travelling crane for the movement of heavy items of equipment between work or storage areas within the respondent factory. On the day in question the appellant was instructed to assist a fellow employee, Mr Smith, to move a portion of an elevator cab some 35 to 50 metres from a work area to the shipping section of the factory. The item which required moving was relatively flat measuring three and a half feet by seven inches by six inches, The appellant Secured it to the hook of the crane and moved it down the passage way to the shipping section. Once it had reached the position in the factory in which it was required to be placed the item was lowered to the floor and the hook of the crane detached. The act of detaching was carried out by Mr Smith. Once the hook had been freed the appellant began to move the crane back down the passageway and whilst doing this he was struck from behind on the head. He was not aware what had struck him but the inference was open on circumstances proved in evidence, and was drawn by the trial judge, that he was struck by a piece of timber which had been stacked in a rack close to the passageway. The learned trial judge, having noted that it was not seriously disputed that the likely cause of the fall of the timber was contact with the crane or its controls, ultimately reached the conclusion that it was more probable than not that the length of timber was struck by the hook of the crane as the appellant moved the crane back down the aisle. This conclusion was open to the learned trial judge in my opinion and no reason has been shown why we should conclude that it was erroneous. It follows from this conclusion that once the hook had been released the appellant moved the crane down the aisle before he had either centred it or retracted the hook to its position adjacent to the motor and many feet above the ground. The consequence was that the hook came into contact with the piece of timber while it was being lifted and no doubt as a consequence of a swinging motion which could not be regarded as unusual in those circumstances. The learned judge noted that "in appropriate circumstances the storage of materials in the vicinity of moving equipment such as an overhead travelling crane may give rise to a foreseeability of injury to the operator or workers nearby". However, he was not persuaded in the instant case that it was foreseeable that the appellant would lift the hook at the same time as he moved the crane, contrary to the usual procedure laid down for the operation of the job, URJ MICEVSKI v OTIS ELEVATOR CO PTY LIMITED (Clarke JA) 5 and added that even if he was wrong in that conclusion there were no practicable means of overcoming the risk created by the possibility that the rising hook might strike stored equipment. With very great respect to his Honour I do not agree in the conclusion, that it was not foreseeable that a materials handler might lift the hook at the same time as he moved the crane. The test of forseeability is undemanding (Wyong Shire Council v Shirt, 146 CLR 40). Furthermore, the authorities quoted by his Honour make clear that there is an obligation upon an employer in appropriate circumstances to take account of the possibility of inadvertent, and even negligent, conduct on the part of employees. The lifting of the hook, which was then positioned at the side of aisle, at the same time as the crane was moved either to the centre or down the aisle looms in my mind as a very real possibility given that a materials handler is engaged in the repetitious moving of the crane and the lowering, and raising, of the hook. Unless the handler was attending with great care to his task it was more than a remote possibility that he would from time to time operate the crane in the manner that the appellant did on this occasion. This conclusion does not dispose of the appeal for it was still incumbent on the appellant to establish that there were practicable means of obviating the foreseeable risk. His Honour concluded that the usual operation of the overhead crane within the factory necessitated the careful manoeuvring of the cable and hook above and around "pieces of equipment under assembly, awaiting removal, or in storage". Because conditions on the factory floor were unlikely to remain static and the hook and cable were likely to confront all kinds of equipment of varying sizes and lengths his Honour concluded that there were no practicable means of avoiding the accident in question. He put it this way: "Having regard to these factors, it is virtually impossible to so install an overhead crane as to remove all risk of accidental collision and injury to an operator who might choose to move the hook before it is fully lifted. To set out the factory and to require handling and storage to remove this risk would be impractical and in my view an exercise of reasonable care did not require the defendant to take any additional precautions in this case." I can accept that it may be virtually impossible to effect an installation of the crane in such a manner as to remove all risk of accidental collision and consequent injury to an operator who moves the hook before it is fully lifted. But that in a sense begs the question. In this case one is concerned to determine whether it was shown by the appellant that it was practicable to remove the risk arising from the circumstances which led to his injury. A consideration of this question requires the court to focus on the nature of the actual risk which was involved in the movement of the crane in that particular part of the factory. The evidence clearly established that the particular part of the A-frame rack which was situated close to the aisle was used for the storage of pieces of angle iron some twelve feet or so in length. These were placed on a constructed base and lay against the apex of the rack at an angle which ensured that they would not fall over unless interfered with. The lateral movement of the pieces of angle iron was secured by two pegs a short distance apart. When the angle iron was properly positioned in the rack, and the rack itself was not overloaded, there was little risk that a piece of angle iron would fall and strike an employee on the factory floor.. 6 UNREPORTED JUDGMENTS Furthermore, given the weight and rigidity of the angle iron, it seems to me highly unlikely that even if the swinging hook struck a piece of the angle iron in the course of being raised it would dislodge the length of iron and cause it to fall unless, of course, the rack was overloaded. Bearing those factors in mind I would conclude that the failure further to secure the lengths of iron by placing a strap across the pegs, and thereby preventing the lengths of angle iron from falling outwards, would not establish negligence on the part of the employer. I would draw that conclusion because the likelihood of the hook dislodging a piece of angle iron was so remote as not to require even the small expense involved in attaching a strap. But this accident did not occur because the angle iron was dislodged.. Some unknown employee placed the length of timber, which was about twelve to fourteen feet long, and which was neither as heavy nor as rigid as the angle iron, about five inches away from the aisle resting upon a number of lengths of the iron. In view of the relative weightlessness and the flexibility of the timber. which was 2 inches deep by 3 inches wide, the possibility of its being dislodged if struck by a swinging hook was so much greater than the possibility of a length of iron being dislodged that some preventative action was, in my view, called for. The strap of which I have spoken would be, on any view, an inexpensive procedure and there does not appear any good reason why it could not have been fixed in position. If it had the accident would have been avoided. It would have been even easier for the person wishing to leave the timber in the vicinity to place it in a position in the stack well away from the aisle and safe from the swinging hook. In my opinion the action of the employee in placing the timber in position close to the aisle and leaving it there unsecured when he knew, or should have known, that there was a real possibility that the crane would move into the vicinity constituted negligence for which the respondent was vicariously liable. In essence therefore I conclude against the respondent upon the basis of the casual act of negligence of the employee in creating a foreseeable risk of injury and taking no steps, at least two of which were practicable and not costly, to eliminate the risk. I agree with the conclusions of the learned President in relation to the other issues for the reasons he has given. Accordingly I agree with the orders he proposes. 1. Appeal allowed. 2. Judgment in favour of the respondent (defendant) entered by Wood J on 25 November 1985, set aside. 3. In lieu thereof, enter judgment in favour of the appellant (plaintiff). 4. Proceedings returned to the Common Law Division for retrial, limited to the issue of damages. 5. The respondent to pay the appellant's costs of the trial and of the appeal. Counsel for the Appellant - J LAURENCE QC, R LYONS Counsel for the Respondent - P WEBB QC, DAVID HALL Solicitors for the Appellant - BA TRIMBLE & CO (City Agents: HONES & LEDINGHAM) Solicitors for the Respondent - DUNHILL, MORGAN, WALKER, GIBBS