MIRYANA PALMINA SMOJE v TREND LABORATORIES PTY LIMITED (Formerly known as Trend Cosmetics Pty Limited) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS PRIESTLY and CLARKE JJA 30 October 1990, 30 October 1990 [1990] NSWCA 168 NEGLIGENCE — employee claims injury in respect of which appeal brought happened because (1) employer negligently required her to work at unsuitable job — alternately (2) that employer negligent in employing her at all — claim (1) fails on facts — claim (2) then strictly does not arise — reference to Foufoulas v F G. Strang Pty Ltd (1970) 123 CLR 168; Withers v Perry Chain Company Limited (1961) 1 WLR 1314; Paris v Stepney Borough Council 51 AC 367; Bankstown Foundry PtY Ltd v Braistina (1986) 160 CLR 301. INTEREST — at first instance appellant had succeeded on a small claim in respect of which judge had apparently not awarded interest — claim not otherwise challenged on appeal — no reason apparent why interest should not be awarded — Falkner v Bourke (CA, unreported, 29/5/1990) referred to — appeal upheld on this point. Priestley JA The appellant in this appeal was employed by the respondent as a process worker between August 1979 and December 1981. In 1985 she brought proceedings against the respondent in which she claimed damages for three injuries said to be suffered by her because of the respondent's negligence as her employer. The first was said to have happened on 10 October 1980, the second on 24 February 1981 and the third on 29 October 1981. Her claims were heard by Mr Justice Cole who found against her on the first and third and gave judgment for her on the second for the sum of $2,000. She appealed on various grounds but in the hearing of the appeal the pressed only two. The first concerned the fact that no interest had been allowed on the claim that resulted in the judgment in her favour and the second asserted that she was entitled to a new trial in regard to her claim for damages for the third injury. It is therefore unnecessary for the court to consider any aspects of the first claimed injury and only the question of interest in regard to the second. I will deal with the interest point after dealing with the submissions put by the appellant in regard to the third injury. The appellant's account of this at the trial was that she was told to lift a heavy box from right above her head, she stretched up to put her hand up to lift the box, the box came tumbling down on her and she fell down on the floor. When she looked at the floor it was all slippery and her back had gone. The slippery surface looked like either shampoo or something. Virtually all of this was disputed by the respondent. The appellant's oral evidence which I have just summarised was in marked contrast both to evidence given by witnesses called by the respondent and to what the appellant herself wrote on an insurance claim form on the same day. Cole J did not accept that the floor was slippery or that the appellant had been directed to do what she was doing when she hurt her back. He did accept that she suffered some trauma to her back when she lifted her arms up to grasp the box 2 UNREPORTED JUDGMENTS which in his view was probably empty. The trauma was not therefore, in his view, caused by any negligence on the part of the respondent. The principal issue joined between the parties at the trial was whether the appellant had slipped as she claimed. Failure on this issue would ordinarily have meant the appellant must fail in regard to the injury suffered on that day because she would not have made out the case of negligence she alleged against her employer. However, there was another resource to which the plaintiff sought to make recourse. Cole J noted that during the hearing the appellant was given leave to amend so as to raise an issue either in relation to the third incident or as a separate or fourth claim by alleging that between 3 November 1980 when the appellant returned to her employment after the first occasion of injury and 29 October 1981, the date of the third claimed injury the respondent was negligent in failing to provide reasonable care for the safety of the appellant by providing her with suitable and proper work having regard to the respondent's actual knowledge of the appellant's back injury on 10 October 1980. It was alleged that the appellant was required by her employer to do heavy lifting and further that the employer failed to pay sufficient heed to the medical reports of Dr Ferry or to the requests made between the dates mentioned by the appellant to be given employment not involving heavy lifting. In the course of the appellant's trying to make this claim good during the trial it emerged that there was no suitable or proper work within the meaning of her claim as formulated which the employer could have made available to her at the factory premises. Cole J noted that the appellant's counsel accepted this position and in response to it obtained leave to add a further particular of negligence saying that it was negligent for the respondent to continue to provide employment for the appellant between 3 November 1980 and 29 October 1981 when the respondent did not have suitable work for the appellant having regard to her medical condition which was known to the respondent. Cole J found it unnecessary to decide one of the issues this final version of this aspect of the case could raise, namely whether an employee might successfully claim damages for negligent failure by the employer to dismiss the employee when the employer knew of a physical disability for work of the employee which could not be accommodated by the employer in the course of the employment. He found it unnecessary to decide this question because he found, on the material before him, that after her return to work on 3 November 1980 the appellant engaged in her normal work from then until October 1981, in regard to which she succeeded before his Honour. He was satisfied that her complaints thereafter were restricted to the bruising suffered by her as a result of that incident and that she did not otherwise indicate to the respondent that the work she was doing, being the normal process work involving lifting or bending, caused her discomfort or pain. He went on that the respondent was in his view entitled to assume she had recovered from the effects of the accident of October 1980 and the incident of February 1981 and that she was not carrying any condition which rendered in unreasonable or unsafe to require her to engage in normal process work which she had done since August 1979. In pressing the appellant's appeal in regard to the third injury her counsel put into more precise form what the judge had referred to as the issue in relation to the third incident or a separate or fourth claim. It was put as follows: that the respondent, having been put on notice that anything other than light lifting could injure the plaintiff, was under a duty, because of its obligation to provide a WRBYANA PALMINA SMOJE v TREND LABORATORIES PTY LIMITED (Formerly known a8 Trend Cosmetics Pty Limited) (Priestley JA) reasonably safe system of work, either to provide work of light character or a non-dangerous kind or not to employ the appellant at all but the respondent did none of those things, whereby the appellant was injured. To this in the course of argument counsel added that the respondent ought to have inquired from time to time of the appellant concerning the state of her back. Counsel acknowledged that for the appellant to succeed in the appeal the court would have to be persuaded of each of three things: (1) that such a cause of action as embodied in the claim I have just repeated was a tenable one; (2) that the respondent was on notice in the way alleged in the claim; and (3) that the injury was relevantly caused by the alleged breach of duty. There seem to me to be problems with each of these three steps. As I have formed the opinion that the appellant cannot succeed on the second step, I will merely make some brief observations about the first and third without stating any conclusion in regard to them. As to the first step, a somewhat similar claim was discussed by Barwick CJ in Foufoulas v F G Strang Pty Ltd (1970) 123 CLR 168 at 173. His Honour's remarks there provide strong, although not decisive, reason for doubting the viability of a claim in the form now being considered. The Chief Justice referred, in the course of his observations, to a case in the English Court of Appeal, Withers v Perry Chain Company Limited (1961) 1 WLR 1314. That case provides perhaps stronger reason than what Barwick CJ said in Foufoulas for doubting the availability of the cause of action relied on. If what Sellers LJ said in that case accurately represents the law as it stands today, then clearly the decision would be a major obstacle in the appellant's path. Devlin LJ on one view of it was as firm as Sellers LJ in the same view. For instance, he said at 1320: "There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so." That was in a context where the particular employer simply had no alternative safe employment to offer to the employee. However, Devlin LJ added to his principal observations the possibility that on the principle of Paris v Stepney Borough Council 51 AC 367: "When the susceptibility of an employee to a particular condition is known, there is a duty on the employer to take extra or special precautions to protect such an employee." (at 1320) He added that in the instant case there were no extra or special precautions which could have been taken. It is possible, in view of the kind of the kind of changing community attitudes referred to by the High Court in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 that some of the statements of Sellers and Devlin LJJ in Withers would not be wholeheartedly embraced today. However, as I have said, it is not necessary in my view for this court to inquire any further into that particular issue and I say no more about it. In regard to the third step which required the court to be persuaded that the injury was relevantly caused by the alleged breach of duty, it seems to me it is not sufficient for the appellant to say, if everything else were held in her favour, that the accident or the injury to her back would not have happened if the employer, in accordance with the alleged duty, had dismissed her at an early stage. The same injury in one sense may just as easily have occurred somewhere else or, to put it perhaps more accurately, the injury, if it happened at work, for example while the employee was bending over to adjust her stocking, could not be said in any material way to be caused by the employer's system of work or the 4 UNREPORTED JUDGMENTS employee not having been dismissed. The trial judge's findings of fact may well have been such, despite counsel's persuasive arguments to the contrary, as to preclude this court from reaching any conclusion other than that the appellant had shown no causal connection between the alleged breach of duty and the injury. Again, as I have indicated, it is not necessary for the court to decide that question. In my opinion it is clear that the court should not disturb the trial judge's finding on the second step in the appellant's argument. The appellant's argument was that when, as his Honour found, the respondent was handed the certificate of Dr Ferry of 25 October 1980, which said that the appellant "will be fit to return on 3 November 1980 but she should not be involved in anything other than light lifting as the injury could recur, " that put the respondent on notice extending through from November 1980 to the date of the injury in October 1981 and that his Honour should not have found that the employer was entitled to assume that the employee had recovered in the way that I have earlier set out. That, however, does not seem to me to take full account of the materials before his Honour. A certificate from Dr ferry had been supplied to the respondent dated 11 October 1980 which said the appellant should "refrain from any form of lifting while she has back pain". An employer, with that certificate in its possession and then receiving shortly afterwards a certificate saying that the employee should not be involved in anything other than light lifting as the injury could recur, would be reasonably entitled, in my view, to consider it to be at least a possibility that the second certificate indicated that the employee was on the way to recovery from the injury. When you add to that the facts found by his Honour, that after the giving of that second certificate to the respondent the employee did her normal process work and, with the exception of the interruption caused by the incident of February 1981, continued to carry on her ordinary work until the injury of October 1981, and also bear in mind the finding, which on the whole of the evidence I think his Honour was entitled to make, that after the February incident the appellant did not complain to the respondent about her back until the accident occurred on 29 October 1981, it seems to me the conclusion was well open to the trial judge on the evidence that the employer, as 1981 wore on, was reasonably entitled to take the view that the appellant was able to do the normal process work she was in fact doing and that there were no further signs of any disability in her flowing from the October 1980 incident. Since notice or knowledge in the employer of the appellant's disability for the work she was doing in her ordinary employment was an essential part of the cause of action relied upon b the appellant, both before the trial judge and in this appeal, and since it does not seem to me that there is any ground for this court to come to a different conclusion from the trial judge on that matter, the second and necessary step in the appellant's appeal on this point in my opinion cannot succeed. That leaves the matter of interest. The trial judge did not make any reference, when dealing with the appellant's second claim, to the question of interest. He found that she had suffered damage as a result of the second incident, and that the symptoms of damage resolved themselves very quickly so that she was entitled to very little damages in respect of that incidence of her employer's negligence. Interest had been claimed in the statement of claim. Prima facie it would appear that there was nothing more involved in the non-awarding of interest or the WRBYANA PALMINA SMOJE v TREND LABORATORIES PTY LIMITED (Formerly known aS Trend Cosmetics Pty Limited) (Samuels JA) non-reference to any interest in the trial judge's reserved judgment beyond it, which was a very minor incident in the overall trial, having been overlooked. When the respondent's counsel was attempting to defend the position that flowed from the non-award of interest, he submitted that it is possible the interest aspect of the claim had been taken into account in the amount awarded by the trial judge. It seems to me that had the trial judge intended to do that, he would have made it clear in his reasons. Counsel for the respondent was then asked, after that view was communicated to him by the court, whether he could suggest any discretionary reason entitling or justifying the retention of interest in this case. In this regard I will repeat something that was said in a case decided in May of this year in this court, Falkner v Bourke, in which the following was said: "Early decisions in this Court, both under the Supreme Court Act and the District Court Act in regard to the awarding of interest, referred to the discretionary aspect of the power granted by the statutes. However, as cases have accumulated in has become clear that the circumstances in which a claim for interest can be refused are rare. The general rule was recognised as long ago as 1983 in a decision of this Court, Home Owners Insurances Pty Ltd v Job (1983) 2 ANZ Insurance Cases, 78, 100, case number 60-535. It was recognised there by Glass JA... that interest is almost invariably to be allowed when claimed..." (unreported 29/5/1990 at 3). This court has since said much the same thing on a number of occasions. There was no factor in the present case which in my opinion came within the kind of rare consideration which would justify the discretionary withholding of interest. Two other things need to be mentioned about interest. The appellant calculated that if interest at the full rates applicable during the period from February 1981 to today's date be allowed, the amount to be awarded would be $2,898. That figure was not contested by counsel for the respondent who, however, raised the other of the two matters necessary to mentioned. He referred to the fact that as a matter of practice it is frequent, when calculating interest for an element for damages in a personal injuries case where interest is applicable, to take the ruling rate and divide it by half. That practice is used in cases where the element of damages in respect of which the interest is being granted accumulates during the whole period between injury and trial. In the present case the trial judge found that the consequences of the second incident were of very brief duration. That thus takes away the reason for the practice that is adopted in cases of the type I have mentioned. I therefore see no reason for reducing the amount of interest from $2,898. In my opinion therefore the appeal, because of the interest point in regard to the second injury, should be upheld, the judgment set aside and in lieu of that judgment, judgment for $4,898 substituted as at today. The ground of appeal concerning the third incident must, in my opinion, be dismissed. The possibility of this result coming about was mentioned to counsel and their submissions on costs of the appeal invited. The appellant's counsel sought an order for costs in view of the partial success that the appellant had. The respondent's counsel submitted that there should be no order for costs in the circumstances. That latter order seems to me to be appropriate. Samuels JA I agree. I do not wish to say anything on the interest point but I will add two brief comments upon the other question, one of fact and one of law. 6 UNREPORTED JUDGMENTS So far as the facts are concerned, it seems to me that the employer was entitled, as the learned judge found, to regard Dr Ferry's report of 25 October 1980, that is to say, a report dated about twelve months before the third accident occurred, as having reference to the immediate time area of the plaintiffs return to work. That conclusion is supported by its place in the medical reports which Dr Ferry furnished, by his status as the local medical practitioner, and by the language in which the report is couched. If there is any doubt about whether the plaintiff was able to perform all the work required of her without complaint curing the period, her histories to various doctors who saw her after she ceased work, although, of course, not known to the employer, are objective proof by way of admission that she was able to do her work without difficulty during that time. So far as the employer is concerned, the nature of the report to which I have referred and the fact that the plaintiff was able to do all her work without any but the slightest discomfort were grounds for the conclusion that the report did not entail an absolute ban which was to persist indefinitely. It is unnecessary, as my brother Priestley JA has pointed out, to make any final determination on the interesting legal argument advanced. It may be of some assistance, however, to spare one moment to consider how it must be categorised in the sequence of elements which a plaintiff in this class of case must establish. It is, it seems to me, one way of establishing what is generally called the preventability issue, that is to say, it is designed to show that an alternative course of conduct - I am using very general words - would have prevented or mitigated the injury which in fact occurred. Put more accurately, it is an issue of fact which the plaintiff must prove to establish that there was a reasonably practicable alternative system which the employer, which I would emphasise, could have used and which was free from the risk of which the plaintiff complains. I have adapted the formula in Glass, McHugh and Douglas The Liability of Employers, 2nd Edition, 33. The learned authors go on to express the view that: "In general the submission that the employer should not have employed the employee at all does not establish a practicable alternative." As I have said, it is unnecessary to determine the point and, seductive though the prospect of doing so may be, I think it better to abstain. I agree that the appeal should be allowed. Clarke JA I also agree, and for the reasons given by Priestley JA, that the appeal should be allowed. 1. The appeal is allowed. 2. No order for the costs of the appeal. 3. The judgment and orders below are varied by substituting for the sum of $2,000 the sum of $4,898, that judgment to date from today. Counsel for the Appellant: BMJ TOOMEY QC / RJ TONNER / JW FLIECE Counsel for the Respondent: PJ DEAKIN Solicitors for the Appellant: KAUFMANN and O'NEILL Solicitors for the Respondent: HUNT and HUNT