STATE RAIL AUTHORITY OF NEW SOUTH WALES v DIMITRIJEVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and MEAGHER JJA 7 November 1989 [1989] NSWCA 192 EMPLOYER — EMPLOYEE — negliaence — unsafe system of work defendant employer appeals against adverse judgment on factual grounds — no new matter of principle — appeal dismissed. Priestley JA This is an appeal by the State Rail Authority against a judgment entered against it by Mr Justice Wood. Proceedings had been brought against it by a former employee who I will call the plaintiff. The plaintiff began work with the State Rail Authority, which I will call the defendant, on a temporary basis as a fettler on Monday 25 July 1983. His first day on the job was the day after, the Tuesday. On this day he watched a gang removing sleepers. On the Wednesday, Thursday and Friday he worked at this job himself. On the Saturday, 30 July, doing the same job he fell and hurt his back. Mr Justice Wood held the defendant liable for the damage he then suffered, assessed that damage at $424,691 and, after deducting what had been paid as workers compensation, entered judgment for $379,693. In the defendant's appeal it has confined the grounds of appeal to those relevant to liability for negligence. The basis on which Mr Justice Wood held the defendant liable was that it had required the plaintiff to do the work he was doing without proper instruction and without proper supervision. Mr Justice Wood arrived at these conclusions in light of the following facts. The work of removing sleepers was done by employees working in pairs. The plaintiff's partner had no more experience than the plaintiff. The accident happened when the pair were trying to move a sleeper from its position on the track from underneath the rail which it had been supporting to the side of the track. First, in the plaintiffs words, they dug the hole, which meant moving the blue metal in which the sleeper was embedded, then took out two steel pins which attached the rail to the sleeper, and then began to use tongs to slide the sleeper from underneath the rail which, I should add, it seems had been hydraulically raised a little distance above the sleeper to the side of the track. In trying to move this particular sleeper the plaintiff was holding one arm of the tongs, his workmate the other, and they were standing with their feet at right angles to the line of the track and their backs to the side of the track. The plaintiff was pulling backwards with both hands on his arm of the tongs trying to free the sleeper when the tongs slipped and he fell backwards on to a railing or troughing, as it was described, some short distance behind him. Mr Justice Wood found that the proper practice for a pair of men removing a sleeper in such circumstances was for them to stand facing the line of the track, that is, facing one another and not at right angles to the track. This let them fall more safely if a slip or a fall should happen, and there was evidence before him showing that this was a known occasional hazard of the job. 2 UNREPORTED JUDGMENTS He also found that the defendant up to a time either not long before this accident or, as it seems from some of the evidence drawn to the Court's attention today, at the time of the accident, gave new fettlers a week's training before they began on the job, but that neither the plaintiff nor his workmate had been given such training. He also found that when a man was being trained on the job as distinct from having a week's training before starting on it, it was usual to pair him with an experienced worker. Having looked through the evidence, each of these findings seems to me to have been justified. Mr Justice Wood's opinion further was that had the plaintiff been working with an experienced man or had he been properly instructed or properly supervised he would have been following the proper practice of standing when using the tongs with his back to the line of the track, not the side of it, and would not have fallen on to the post or rail which caused the damage. In this Court the defendant disputes the trial judge's conclusions on various bases which in the oral submissions were, I think, put mainly under three heads. The first basis took as its starting point an observation made by the trial judge in what was a critical part of his judgment. His Honour said in this part, "I am satisfied that had he (ie the plaintiff) been informed of the risks further efforts would have been made to loosen the ballast and that the correct stance would have been taken". The submission for the defendant was that his Honour was mistaken in thinking that further loosening of the ballast was needed. It was said that evidence had been given by the plaintiff to the effect that all ballast necessary to be moved had been moved before the operation with the tongs began. The submission was then developed that this misunderstanding affected his Honour's approach to the factual situation in a way that vitiated his conclusion. However, it seems to me that his Honour was justified in saying what he did. On the facts it appears that the parts of the operation usually sufficient to enable the sleeper to be moved from underneath the rail had been gone through when the plaintiff and his workmate began to use the tongs. Had they in fact been sufficient, then the necessary amount of ballast would have been moved and the defendant's submission might have some force, but it appeared from the plaintiff's evidence that in trying to move this particular sleeper the pair encountered difficulty. At one point in cross-examination the plaintiff said, "That particular sleeper was hard and my boss came Edward his name - he tell me - try with both hands and pull hard". A little later he was asked whether there was something unusual about this particular sleeper and said, "Very hard to take it off'. When these answers are taken together with the whole of the evidence it seems to me the inference was clearly open for his Honour to draw, and I also, if it is necessary to say this, would draw it in the same circumstances, that the sleeper had not been fully freed from its being embedded in the ballast and the, if not the only, most likely reason for it not being fully free was that not sufficient ballast had been moved from around it before the rest of the operation proceeded. It thus seems to me that the factual foundation for the first basis of the attack made upon his Honour's reasons fails. To restate in a brief form my reason for thinking that this first ground of appeal is of no effect, it seems to me to have proceeded on the footing that the sleeper had been freed and was ready to be moved from the place where it had been embedded. On the contrary, the evidence seems to me to show that the accident happened while the sleeper was still in the course of being freed. URSTATE RAIL AUTHORITY OF NEW SOUTH WALES v DIMITRIJEVIC (Priestley JA) 3 This same point features again in the second principal submission of the defendant. It was said because of the physical features of the spot where the accident happened, one, the plaintiff had to stand the way he was standing and, two, whatever way he was standing the accident would have happened anyway. The submission was made in association with the contention that his Honour was wrong in saying that the correct stance would have been taken by the plaintiff had the plaintiff been fully informed of the risks. Stress was laid on the fact that at the part of the track where the plaintiff was working the distance between the end of the sleeper and the fence, which I will call it for lack of a better word, enclosing that part of the railway property alongside which the track was running, was much less than usual. Thus to pull the sleeper from underneath the rail would involve the workmen in an awkward situation where the sleeper would actually be coming into contact with the fence or troughing, as it was called in the evidence, before it had been fully freed. This factual submission seems to be correct as far as it goes, but it does not seem to me to follow from that physical situation that either of the workmen had to be in the position that they were or had they been in the approved position the plaintiff would have fallen anyway in the way that he did. It simply is a matter of understanding the operation that was going on. It seems clear enough that by standing in the way the pair were standing, that is, with their backs to the railing or troughing, they were able to exert greater pull upon the sleeper through the tongs than they would have done had they been standing facing one another over the tongs. That does not mean that the way they were doing it was the only way of doing it. It simply means that had they adopted the correct procedure it would have taken them longer to carry out the operation. Standing at right angles to the way in which they were in fact standing it would have been somewhat more difficult to exert full pull upon the sleeper, but some pull obviously could have been exerted and the sleeper removed without the danger of that happening which did happen. I have been referring to the correct stance as that in which the men using the tongs faced one another over the sleeper. The evidence about that was not as fully precise as a perfect world would demand, but there seems to me to have been ample evidence from other employees of the defendant who gave evidence to show that the usual practice, as known to the employer, was that employees using the tongs would use them in the face to face position, and that the reason for this being the usual practice was the simple reason that if slips or falls did occur and if one is to fall down an embankment, which is usually the case beside railway tracks, it is safer to fall sideways. Further, that particular stance gives more opportunity to the person falling of not falling down the embankment at all, but falling on to the track. Obviously any fall may produce injury to the employee, but it seems to me to be equally obvious that the kind of fall which will be likely to follow from a face to face position is less likely to produce injury than the kind of fall that occurred in the present case from what I regard, like the trial judge, as the incorrect position. An associated submission made by the defendant was that his Honour was in error in inferring that the assumption of an alternate stance would have prevented the accident. The reasons I have just given in regard to the previous ground seem to me to dispose of that ground also. 4 UNREPORTED JUDGMENTS Finally, the defendant submitted that in view of the plaintiff's own experience and background he was equally as aware of the dangers involved in the method that he did use as the employer and equally able to see that the appropriate method of using the tongs was the face to face method. Allied with this submission was the correct reliance upon the fact that the plaintiff had had one day's observation of the kind of work he was doing and three days previous experience in actually working at that kind of work before the injury happened. It was thus said that either the plaintiff required no instruction of the kind that his Honour had thought should have been given, and which on the evidence had not been given, or what experience he had gained on the job in the days in which he had seen it being done and had been doing it himself was sufficient to leave him in the position of somebody who had been properly instructed. This last submission seems to me to be the one with potentially the greatest force. However, as against it, it seems to me that the trial judge was correct in saying that there had been a failure to instruct this plaintiff in matters in which employees in his position were usually either instructed for a significant period before going to work or if not so instructed were, when put on the job, put with an experienced man. Further, the defendant had had very long experience in the particular operation in which the plaintiff was engaged at the time of the accident. It was known to the defendant that the use of tongs of this kind occasionally resulted in slips and falls. It was also known to the defendant that the face to face position in use of the tongs reduced the risk of working with the tongs. Those considerations seem to me to be sufficient to show that the defendant was under a duty to give the plaintiff more specific instructions than it did give him or cause him to be supervised more closely than he was supervised. Indeed, on the question of supervision, there was evidence that the ganger in charge of the group of which the plaintiff was one, upon seeing the difficulty that he and his workmate were having in dislodging the sleeper, told them to pull harder and to use two hands to pull harder. There was nothing wrong in itself, so far as the evidence goes, in the instruction to use two hands, but if, as the evidence seems clearly to suggest, the sleeper was not moving because it was still at least partly embedded in the ballast, then the proper instruction would have been to take further ballast away by the available pickaxe, which had earlier been used, before pulling further on the tongs. lL use this incident from the evidence as an illustration of the availability to the trial judge of the view that the plaintiff was not properly supervised in the period immediately leading to the accident. My reasons have been confined to the grounds taken by the defendant in its appeal. In my opinion each of them fails and the appeal should be dismissed with costs. Mahoney JA I agree. In general terms in the context of such a case as this, there is a duty upon an employer to ensure, for example, that appropriate steps are taken to safeguard his workmen against dangers incidental to their work and to do this either by setting up specific precautions or at least by making them aware of the dangers - I mean by this dangers of a significant character. In this case the failure to warn and instruct is one of the matters on which Mr Holt for the plaintiff has relied. There was a danger that the tongs would slip. His Honour so found. He drew the inference from the evidence that because of the condition of old sleepers the tongs did tend to slip free when force was exerted. At least two of the witnesses stated that slips of this kind did occur. URSTATE RAIL AUTHORITY OF NEW SOUTH WALES v DIMITRIJEVIC (Meagher JA) 5 These findings and the significance of them have not been in contest in this appeal. If there was a danger of this kind, there was a danger that when the tongs slipped the workmen would fall and might injure themselves, particularly if they were standing in a position such as that here in question, namely, with their backs to the box of cables and a wall. In this case the plaintiff was not warned of the danger of the tongs slipping or of his falling. In particular he was not warned of the significance of that possibility in the particular area where he was. Prima facie, therefore, there was a breach by the employer of its duty to its workman. The defendant's rebuttal of this in argument took, I think, two main forms. First, the defendant contended that it was not necessary to warn the plaintiff of the danger, either of the slipping of the tongs or that he would fall, because it was obvious. I do not wish by what I have said in this case to introduce into the law of master and servant duties which in the practical context of a workplace may seem curious or even ridiculous, but I do not think that that is the result of finding, as I do in the present case, that there was a duty on the employer to bring home to the plaintiff in this case the dangers in question. It may be that these dangers would have been apparent to a person who thought through the situation and its possibilities. But it is not right to assume that a workman, and in particular, to use the example in the present case, a railways fettler, will stand and think through the dangers inherent in a particular work situation. It is not right always to assume that a workman will be conscious of the dangers which, with the benefit of hindsight, are apparent to a court. In this case I do not think that the dangers were so obvious that the employer's obligation to ensure that the workman was aware of them was discharged. The second reply was that if there was an omission to warn, that did not cause this accident: that is, it did not cause the injury which the plaintiff suffered in this case. The suggestion was that had there been a warning the plaintiff would or might not have done otherwise than he did. I do not think that that is an answer in the present case. I think that had the plaintiff been properly instructed or warned of the dangers incidental to what he was doing he would probably have taken care either to stand in a different way or otherwise to minimise the dangers and the damage which was apt to occur to him. I agree, therefore, that the appeal should be dismissed with costs. Meagher JA I agree with Mr Justice Priestley and also with Mr Justice Mahoney. The order of the Court, therefore, is that the appeal is dismissed with costs. Counsel for Appellant: B Morris Solicitors for Appellant: FD Thompson Counsel for Respondent: WJ Holt QC, with V Jurisich Solicitors for Respondent: Radin and Associates