CARUANA v CONAUST (AUSTRALIA) PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MEAGHER JJA 27 March 1991, 27 March 1991 [1991] NSWCA 46 NEGLIGENCE — safe system of work — no evidence of preventability — jury's finding for defendant not unreasonable. Samuels JA This is an appeal from the decision of a jury in an action for damages heard by Ireland AJ on 3 and 4 October 1989. The facts may be shortly described. The plaintiff, as I will call him (the present appellant) was a waterside worker employed by a stevedoring company Conaust (Aust) Pty Ltd to discharge a vessel in Sydney Harbour on 28 October 1982. The cargo to be discharged in Sydney, with which the plaintiff and the other members of his gang were concerned, was in the square of the hatch and was stacked above other cargo which was to be carried to and unloaded in Adelaide. There was evidence that when there are two layers of cargo, as I may describe the situation, various kinds of separation marks are used so that in the course of unloading the correct cargo will be discharged in the correct place. Sometimes containers or crates are marked with water paint, and on other occasions the demarcation between two layers of cargo is laid out by netting or boards. In the present case there was a layer of black plastic separating the Sydney cargo and the Adelaide cargo. It was thick plastic and impenetrable to the eye, so that it was not possible to see through the plastic and examine the nature of the cargo beneath, or the way in which it was stacked, and particularly whether it formed an even and continuous layer upon which men could work with safety. Towards the end of the discharge operation the plaintiff fell through the plastic sheeting at a point where evidently there was a gap underneath, and he sustained injury. He sued his employer, the defendant (and the present respondent) in negligence asserting specifically a failure by the defendant to devise and maintain a safe system of work. The precise allegations were that the defendant had failed to inspect the area so as to ascertain exactly what lay beneath the plastic so as to ensure that the area was safe. In the alternative it was contended that the defendant was negligent in failing to give the plaintiff and his fellow workers some warning to take care as they worked on the plastic, presumably in positions from which cargo had been removed. The jury, having been out for longer than the statutory four hours, were invited to return a verdict of three, as the verdict of the full civil jury, which they did, finding that the plaintiff had failed to establish the defendant's negligence. On that finding the learned acting judge gave judgment for the defendant, and it is from that order that the appeal comes. The plaintiff submits, in short, that the jury's denial of the plaintiff's case in negligence was, in the circumstances, unreasonable, and should be set aside by dint of the well known passage in the judgment of Sir Frederick Jordan in Bell v Thompson (1934) SR 431 at 437, which both sides accept as correctly stating the relevant legal principle. 2 UNREPORTED JUDGMENTS The plaintiff's evidence describing the unloading operation and how he came to be hurt was not in contest. He called a witness, a Mr Vella, who supported the plaintiff in saying, first, that he had never seen black plastic used as a separation mark before and secondly, that the stevedoring foreman was on hand and in a position from which he could supervise the unloading operation. From that position, as the judge told the jury, it may be inferred that he could see the black plastic, and could have made an assessment as to whether or not he should go down and ascertain when they got to the level of the plastic whether it was safe for the men to continue working there. The plaintiff was cross-examined about the operation and he agreed that he had never seen plastic used in this way before, as I have said; that there would have been a cargo plan which would have been available to the foreman; and that the ship's mate, who would have been responsible for the loading, could have told the foreman where cargo had been stowed. There were no other facts in issue so far as I can see. The plaintiff was also asked this question: "Q. Certainly the placing of the black plastic had nothing to do with Conaust, did it?" The question was objected to and rightly rejected. His Honour, in charging the jury, really took up what I take to have been the gravamen of the question by telling them this: .... The duty to ensure that the place of work where the defendant directs the plaintiff to work, and the system of work under which he is required or permitted to work, is safe, is a non-delegable duty. The defendant cannot say to somebody else 'Make this workplace safe' and, therefore, then, because somebody else has made it unsafe, say 'This is not my fault'. If the plaintiff is injured as a result of a foreseeable or even possible risk, which a defendant, acting reasonably, could have avoided, then the defendant is in breach of the duty of care owed to the plaintiff, its employee, and is guilty of negligence". This was a perfectly correct direction of law. On the following page of the record, the judge said that counsel for the plaintiff had said that since the defendant, had called no evidence, the jury could more confidently draw inferences in favour of the plaintiff's case "because the plaintiff's case is uncontested". And the learned judge went on: "That is perhaps not completely so. The plaintiff's case is not contested by evidence called on behalf of the defendant, but the defendant contests the case by its cross-examination of the plaintiff." And then Ireland AJ left the essence of the case to the jury in these terms at 70: "\... This is a matter, let me stress, entirely for you. This is the way in which you will consider it and it is your decision as to whether or not you think the company was reasonable in requiring the plaintiff to work in that particular area without examining the area to see if there were any holes in the form of covered tracks underneath the plastic or whether or not some warning should be given to the men working there, including the plaintiff, that they were likely to come across holes or to be aware and look out for them in case there may be... " Accordingly, the learned judge, without any objection from counsel, left it to the jury to decide whether they thought the company had acted reasonably in requiring the plaintiff to work in that area without examining it to see whether the working platform was safe, level and continuous. URJ CARUANA v CONAUST (AUSTRALIA) PTY LIMITED (Mahoney JA) 3 The plaintiff, first of all, suggests that the jury may have been misled by his Honour's reference to the defendant having contested the case by cross-examination and that they, or at least the majority, may have thought that despite the rejection of the question to which I have referred, the substance of the question was something which they could take into account. To the extent that the direction about contest by cross-examination is incorrect and misleading, it must be pointed out that no redirection was sought by the plaintiff's counsel. I make it plain I am not saying that by way of criticism, but merely observing that no redirection was sought. That being so the scenario which the plaintiff sketches and which the jury may have adopted is not irrational or unreasonable. However, I would have thought that there is a further and more compelling ground which justifies the jury's verdict, or at least, I should say, which provides an immovable obstacle to the submission that the verdict should be set aside. There was no evidence concerning what I may call the preventability issue. There was no evidence indicating what a reasonable inspection might have constituted in the circumstances, and no evidence that such an inspection would have revealed the hidden danger into which the plaintiff fell. Nor was there any evidence as to what sort of warning might have met the situation. It must be borne in mind that it has long been the law that it should be clearly established by evidence that some other and safer system is reasonably practical and that its adoption would have obviated the particular accident which has occasioned damage to the plaintiff (General Cleaning Contractors Ltd v Christmas (1953) AC 180 at 198; reference can be made also to Vozza v Tooth and Co Ltd (1964) 112 CLR 316 and Neill vy NSW Fresh Food and Ice Pty Ltd 108 CLR 362 especially at 365.) As the matter was left to the jury without objection it was, I would have thought, open to them to conclude that the defendant, acting reasonably, could not have avoided this risk of injury. The jury might well have thought that since the hole was under the cargo destined for Sydney, and could not have been revealed until that cargo had been wholly or partially discharged, there was no reasonable way in which the danger of accident could have been averted. Furthermore, they may well have thought that there was no warning which could have had the same result, consonant with the defendant's carrying out the work to which it was contracted with reasonable expedition and economy. These were, as the acting judge put, essentially questions for the jury. The fact the jury came to a conclusion which certainly may be regarded from the plaintiff's point of view as an unfortunate one, and one to which other tribunals might not have come, is not sufficient to authorise our intervention. Judges have, for many years, been warned not to trespass into the fact-finding area occupied by civil juries and while civil juries are retained that boundary must be scrupulously respected. In my opinion there is no warrant in this case for concluding that the jury's finding was unreasonable or perverse. Accordingly I would dismiss the appeal with costs. Mahoney JA I agree with Samuels JA. In view of his Honour's observations, withwhich I agree, I shall add some short observations of my own. It is, I think, important to have in mind in assessing the jury's verdict, the basis on which the case was put to the jury without objection and without redirection. The learned acting judge in the course of his summing-up stated the duty of the employer in a manner which was of some significance in the context of the case. He said: ".... [must tell you that an employer is under a legal duty to take reasonable care for the safety of all of that employer's employees whilst they are in the course of their employment... " 4 UNREPORTED JUDGMENTS He went on: "... By way of example, it must take reasonable care to provide a reasonably safe place of work; to provide proper equipment and to devise and supervise a suitable and safe system of work....." Subsequently in relation to that and by way of explanation of his direction, he said: "\... The system of work being carried out by the plaintiff is the defendant's system. If the system is unsafe or is being carried out in an unsafe manner to the knowledge of the defendant, then it is the defendant who must take the responsibility. The duty to ensure that the place of work where the defendant directs the plaintiff to work, and the system of work under which he is required or permitted to work, is safe, is a non-delegable duty... " This is part of the passage to which reference has already been made by Samuels JA. His Honour made reference to the fact counsel had addressed on the various aspects of the evidence and said:("... it is certainly not necessary for me to do other than to refer to it very briefly......." His Honour's observations are of significance having regard to the way in which the case was conducted and to what was said by Windeyer J in Jones v Dunkel 101 CLR 298. It was in such a context that the jury was invited to consider the matter. The jury had evidence before them as to what the position was in relation to the unloading of a vessel and as to the respective functions of those responsible for the vessel, that is the captain and the mate, and those responsible for the unloading, that is the defendant and his foreman. In the course of the plaintiff's cross-examination he gave the following evidence: "... Q. So that the plan you say is a document which tells those unloading the ship where the cargo is to go? A. That's right. Q. That is the purpose of the plan? A. The mate gives it to the foreman, the ship's mate. Q. If there was the plan in this case it would not tell about the gaps in the cargo it would tell what cargo is to go to Sydney or Melbourne? A. No, the ship's mate should have told the foreman, he is the bloke that watched the ship being loaded. Q. That would be the mate from the Tropic Dawn? A. Yes. Q. He has nothing to do with Conaust, does he? A. Yes, he tells the foreman what to do. Q. He is not employed by Conaust? A. Conaust is employed by the ship owner.... " Against that background the learned judge gave the directions to the jury and in particular he directed the jury in the following terms: "... You may think, using your own knowledge, limited though it may be, of what you would find in the hold of a ship where cargo had been loaded in boxes, as the evidence in this case is, whether or not you would expect that those boxes would be so loaded as to be perfectly secure underneath that black plastic, or whether there was a foreseeable risk that there would be a hole there and that that hole would be covered with the black plastic and would, therefore, become a trap that the plaintiff may, you may think, readily fall into. URJ CARUANA v CONAUST (AUSTRALIA) PTY LIMITED (Meagher JA) 5 This is a matter let me stress, entirely for you. This is the way in which you will consider it and it is your decision as to whether or not you think the company was reasonable in requiring the plaintiff to work in that particular area without examining the area to see if there were any holes in the form of covered traps underneath the plastic or whether or not some warning should be given to the men working there, including the plaintiff, that they were likely to come across holes or to be aware and look out for them in case there may be." It was, I think, therefore open to the jury to conclude that the way in which the issue was being presented to them was one as to the reasonableness of what the employer defendant did in relation to either the examination of the area in which the plaintiff was working or the giving of a warning to him to be careful that the footing on which he was to work was in appropriate order. The jury having been directed without objection to approach the matter in that way or at least that they might do so, it was, in my opinion, open to the jury to conclude that what the defendant had done was not, within the terms of the direction which had been given to them, unreasonable. His Honour, as I have indicated, stressed to the jury it was entirely a matter for them to determine whether or not the company was: "\.. reasonable in requiring the plaintiff to work in that particular area without examining the area to see if there were any holes in the form of covered traps underneath the plastic or whether or not some warning should be given to the men working there, including the plaintiff, that they were likely to come across holes or to be aware and look out for them in case there may be." In the circumstances, therefore, I do not think that there was, having regard to the way in which the case was presented to the jury, anything appealably unreasonable in what the jury did. I am conscious that of course the plaintiff could not have asked for a direction that the jury enter a verdict for the plaintiff upon a case which, in my opinion, was quite a strong case for the plaintiff - at least it appears so on the material that is before this Court - and I have, therefore, considered what the plaintiff's counsel could have done in this regard. Accepting that the case was presented in the way to which I have referred, accepting that that was the basis on which the issue was fought before the jury, it may be that the plaintiff's counsel could only have asked for further directions as to facts. Whether he could and should have asked for other directions as to law is not a matter necessary for me to consider. But in all the circumstances I do not think that having regard to the way the matter was put to the jury, the jury acted in a way which was appealably unreasonable in arriving at the verdict that they did. I, therefore, agree with what has been proposed. Meagher JA I agree with both my brethren. Appeal dismissed with costs. Counsel for the Appellant: CT Barry Counsel for the Respondent: RR Bartlett Solicitors for the Appellant: Turner Freeman Solicitors for the Respondent: John M Curran - Solicitor for GIO