JONES v CASEY and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and MEAGHER JJA 7 February 1991, 27 February 1991 [1991] NSWCA 161 JOINT TORTFEASORS — contribution — contribution by employer to judgment recovered by worker — whether negligent failure of the employer to provide the worker with a safe system of work proved — whether any such failure was causally related to the worker's injuries, as sustained — whether any different system of work would have prevented injury to the worker — held: (1) The employer owed a personal duty of care to the worker which was not delegable; (2) The mere fact that the injured worker was a senior employee did not release the employer from that duty. General Cleaning Contractors Limited v Christmas [1953] AC 180, 189 applied; (3) Nevertheless, it was not shown that any of the alleged defaults of the employer was causally related to the way the worker suffered injury; (4) Insofar as a causal relation was suggested by the want of provision of a safety rail around a flour tanker, this was a matter requiring expert evidence and was not within the common knowledge of a court. In the absence of such evidence, the claim for contribution was properly rejected. NEGLIGENCE — duty of care — breach of duty — need to establish that the breach of the duty was causally related to the damage suffered — need to establish that, in the circumstances proved, the damage was preventable. PRACTICE and PROCEDURE — fair procedures — whether ground of negligence adequately pleaded and raised at trial — held: Having regard to counsel's statement that the issue was not litigated at trial and to the want of clear particularisation, it could not be raised on appeal. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1, 7 applied. Kirby P, Samuels and Meagher JJA This appeal concerns a claim by a tortfeasor against a corporation which he alleges contributed by its negligence to the injuries of the plaintiff who recovered damages from him. Upon examination, the tortfeasor's main contention founders on a principle of procedural fairness which requires that a case on appeal should be grounded in the matters litigated at trial. A worker is injured in a fall Mr John Casey (the first respondent) ("the worker") was injured in the course of his employment by Loneragan Flour Mills Pty Limited (the second respondent) ("the employer"). The injured occurred on 5 April 1981. It was occasioned when Mr Russell Lumsdene, ("the driver"), an employee of Mr Roger Jones (the appellant) drove forward a tanker on the roof of which the worker was working. As a result of this forward movement, the worker fell some 4 metres to the ground. AS a result of his fall, he suffered severe and painful orthopaedic injuries. These included fractures to the left humerus, wrist, pubic rami and transverse processes at the L2/L3 level of the spine. At the time he received these injuries, the worker was aged S4 years. He is now 64 years of age. There is no explanation of why his case took eight years to reach trial. The appeal has taken a further two years to come before this Court. By his statement of claim in the District Court, the worker named only Mr Jones as defendant. He alleged negligence on the part of the driver in moving Mr Jones' truck whilst he was on it; in moving it suddenly, in failing to warn him 2 UNREPORTED JUDGMENTS before doing so and in failing to ensure that he had a proper foot or handhold before the movement was effected. Mr Jones accepted liability for Mr Lumsdene's actions and omissions. In this Court, he did not contest the worker's entitlement to recover from him. Mr Jones joined the employer as third party in the proceedings. He contended that the employer was obliged to indemnify him, or to contribute to any verdict recovered against him, pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946. By his third party notice, Mr Jones gave the following particulars of the employer's alleged acts and omissions of negligence: "(a) Failure to establish d safe system of work for its employee, the Plaintiff. (b) Failure to give the Plaintiff proper instructions as to his safety and as to a safe procedure for moving the vehicle in the circumstances. (c) Failure to properly supervise the loading process. (d) Failure to give adequate or any sufficient instructions to the driver of the flour tanker as to the safe method of loading and moving his vehicle whilst in the third party's premises. (e) Failure to warn the plaintiff, its employee, of the danger involved in standing on a trailer whilst that trailer was moving or likely to be moved. (f) Failure to warn its employee to keep well clear of a vehicle which was moving or about to move." After the employer was joined as a party in the proceedings, it issued a fourth party notice to Mr Jones, claiming recovery from him on the ground of the driver's negligence. These, then, were the issues joined when the trial of the action came on for hearing before Downs DCJ on 22-23 May 1989. On 24 May 1989, his Honour dismissed the third party and fourth party claims. He found for the worker against Mr Jones. He entered judgment in favour of the worker in the sum of $194,357.25. This judgment represented the damages to which Downs DCJ concluded that the worker was entitled ($270,362.31) less a sum already paid in workers' compensation benefits ($76,005.06). Mr Jones was ordered to pay the worker's costs and the costs of the third and fourth party proceedings. Later, he ordered Mr Jones to pay a sum of interest to the employer. Cf Howard Rotavator Pty Limited v Wilson (1987) 8 NSWLR 498, 501. Mr Jones has now appealed to this Court. He claims that Downs DCJ erred in the conclusions which he reached concerning the respective responsibilities for the worker's injuries of the driver (for whom Mr Jones was liable) and the employer. In the original notice of appeal there was a challenge to the amount of the judgment entered for the worker. However, when the appeal was heard, this challenge was abandoned. Thus, the only issue for decision was whether his Honour had been shown to have been wrong in dismissing the third party claim by Mr Jones against the employer, with consequences also for the order which he made in the fourth party claim. Mr Jones, in this Court did not contest the entry of judgment in favour of the worker against him. But he sought contribution from the employer. He suggested that the contribution should be of the order of 50% at least, based upon the alleged parity between the contribution which the driver (for whom he was liable) and the employer respectively made to the injuries suffered by the worker. Trial judge dismissed claim for contribution Downs DCJ dismissed the claim for recovery on the third party notice offering these reasons: URJ JONES v CASEY and ANOR (Kirby P, Samuels and Meagher JJA) 3 "The defendant joined in Loneragan Flour Mills Pty Limited - the plaintiff's employer - as d third party, and he alleged that he was entitled to contribution in the event of being held liable to the plaintiff because he alleged that the plaintiff's fall was caused at least in part by the third party's failure to adequately light the area, provide foot holds or hand holds, to instruct the plaintiff either verbally or by signs, and supervise the plaintiff. During the course of his evidence, the plaintiff said that in order to operate the lever it was necessary for him to work on a walkway of the tanker and, further, it was necessary for him to stay there so as to check to see when each hatch was full. Also during the course of his evidence he said he could have tripped or slipped. Indeed, he admitted he signed his workers compensation accident report which stated that he slipped - apparently the body of the document was not in his handwriting. However, he was adamant that the cause of his fall was the sudden unexpected movement of the tanker. Perhaps I should add at this state that on a number of occasions I got the impression that the plaintiff - who was very deaf - was inclined to answer questions that he did not fully hear. However, as I have said, he was adamant that it was the sudden unexpected movement of the tanker which cause (sic) his fall. Neither the defendant nor the third party called evidence on the issue of liability. On the evidence, I am satisfied that any absence of rungs, handholds, footholds or instructions were in no way casually related to his fall. Its sole cause was the movement of the tanker without notice and contrary to normal practice So far as supervision was concerned, the plaintiff was very experienced in his work and was the senior man, indeed the only employee on duty on the day the occasion of his fall. In considering the approach which should be taken to the issues in the appeal, it is appropriate to start with an understanding of Downs DCJ's impression of the truthfulness of the evidence given by the worker. Inherent in the passage cited from his Honour's reasons is an acceptance of so much of the worker's evidence as suggested that the reason which led him to fall from the tanker was the sudden, unexpected and unannounced movement which the tanker made, contrary to normal practice. This being an inference inherent in his Honour's findings, it is one which may not be disturbed by this Court except in limited circumstances as explained by the High Court in Abalos v Australian Postal Commission (1990) 65 ALJR 11, 16. His Honour did not leave his impression of the truthfulness of the worker to inference. In his treatment of the issues relevant to damages he concluded that the worker's evidence demonstrated "what a truthful and reliable witness the man was". Accordingly, the starting point for the performance by this Court of its function is necessarily an acceptance of the worker's evidence given at the trial. It was the essence of the case presented for Mr Jones that it was not for the worker (by his statement that it was the sudden movement of the truck which caused his fall) to determine the relevant issue of causation. This was a question for the Court. The Court could only answer the question by considering the duty owed by the employer to the worker; whether the employer was in breach of that duty and, if so, whether such breach had caused, or contributed to, the worker's injuries. A complaint was made that Downs DCJ had failed adequately to address these issues. To the extent that he had done so, it was said, he had failed to deal with the case as presented at trial or had dealt with it erroneously. The Court was 4 UNREPORTED JUDGMENTS invited to apply the correct legal tests to the case urged for Mr Jones. Doing so, it was argued that the Court would reach the conclusion that Mr Jones was entitled to the contribution he claimed. An allegedly negligent system of work In order to understand the arguments in the appeal it is necessary to have some appreciation of the way in which the worker's injuries occurred. It was agreed that, in his reasons, Downs DCJ accurately described the normal procedure which was followed in the relevant activities of the worker leading to the incident which occasioned his fall: "The normal procedure was for the driver to stop his vehicle under one of the silos and then the plaintiff assisted with the loading operation. He would climb a ladder on to the tankers, walk on a metal mesh walkway which ran the full length of the tanker, and was situated on the top of the tanker. He would then open the first hatch on the top of the tanker, place what he described as a rubber hose approximately eighteen inches in diameter - which ran from the bottom of the hopper of the silo - into the hatch, pull the lever so that the flour would, by gravity, feed into the hatch and, when the hatch was full, he would operate the lever to cut off the supply of flour, take out the hose close the hatch, call out to the driver to move the tanker up so as to position the next hatch under the hose. When in position he would call out 'whoo' as a sign to the driver to stop, open the second hatch and so carry on this procedure until the last hatch on the tanker was filled. When the last hatch was filled, the practice was for the hatch to be closed and the plaintiff would then climb down from the tanker, and when he got to the ground, direct the driver to move off." Clearly, this normal procedure was not followed on 5 April 1981. The worker had knocked off work, repaired to a local hotel and, after a few drinks, had gone home at about 6.30 pm. When his dinner was almost ready, just before 7 pm, the driver came to his home and asked him to assist with the filling of the tanker for a second load. The worker agreed to do so. At the silo, he climbed onto the top of the tanker. He duly filled each of the hatches with flour. After each filling operation, the tanker moved forward, driven by Mr Lumsdene. After closing the last hatch, but before the worker could descend from the top of the tanker, the tanker moved off suddenly without any warning. Downs DCJ drew the inference that it had done so by reason of the driving of Mr Lumsdene. This conclusion was not challenged. The exact distance that the truck moved is not clear from the evidence. Nevertheless, it is certainly clear that the driver did not give any oral warning to the worker. Unsurprisingly, he was caught unawares. It was in this way that he fell from the top of the tanker and received his injuries. At the trial, Mr Lumsdene was not called in the case for the appellant. Indeed, no evidence was called on Mr Jones's behalf to establish the third party claim based upon the alleged negligence of the employer. The precise way in which that claim was advanced at the trial was unfortunately the subject of some contest when the matter came before this Court. Dispute over the case at trial Downs DCJ expressed his understanding of the case which the appellant brought in the following short passage of his reasons already quoted in full (see above p 4). Counsel for the appellant (who was not counsel at the trial) asserted that this Court would readily draw the inference that an additional head of negligence was litigated, namely the failure of the employer to instruct its employee (the worker) URJ JONES v CASEY and ANOR (Kirby P, Samuels and Meagher JJA) 5 not to climb onto the tanker at all but to leave both the movement of the tanker, and the opening and closing of hatches on its top, entirely to the driver. In favour of an acceptance of that submission are particulars (e) and (f) in the particulars of negligence set out in the third party claim quoted above. Also in favour of it are a number of questions put to the worker in cross-examination both for the employer and the appellant. From these questions, it was said, the conclusion would be drawn that the appellant had sought to sustain his case for contribution upon the basis that an alternative and preferable system of work (which would have prevented the fall that occasioned the worker's injuries) was that of leaving the movement of the truck and the opening of hatches exclusively to the truck driver himself. Had that system been adopted, there would have been no risk to employees such as the worker of an unexpected fall from the top of the tanker. This was a simple, practical and effective means of avoiding an obvious risk. It should therefore have been the system adopted as the employer's system of work. Had this been done, the worker could not have been injured. The failure to adopt and enforce such a system was therefore negligent, rendering the employer liable to contribute to the worker's judgment. It is true that the worker was.asked certain questions about the system of work adopted: "Q: Were there any times when the driver of the tanker had to do his own loading? A: Yes, that was after I got hurt the drivers had to do their own from then. Q: After you got hurt they came to the assistance? A: They must have, "... Q: And usually it was the driver of the tanker who climbed onto the top of the tanker and released the valve, which let the flour come through? A: That was after. When it first started I used to do that, " These passages show that the existence of an alternative system at least emerged during the evidence. On the other hand, as a specific ground of negligence, this contention was not mentioned by Downs DCJ in his catalogue of the grounds actually relied on at the trial. It was not mentioned clearly in particulars (e) or (f). Counsel for the employer (who did appear at the trial) assured the Court that it was not a case which had been advanced at the trial. Accordingly, in approaching the appeal, this Court should disregard that issue. To do otherwise would occasion a procedural unfairness to the employer. The High Court of Australia has repeatedly stressed the importance of avoiding the risk of such unfairness. See eg Coulton v Holcombe (1986) 162 CLR 1, 7 and cases there cited. In the present case the risk of unfairness is real and is not simply a theoretical one. Had such a case been clearly presented at the trial it is possible that the employer would have wished to call evidence about the feasibility of adopting as a universal one, the practice suggested. It might have wished to demonstrate by evidence that it was not possible or appropriate in the case of inexperienced drivers such as Mr Lumsdene appears to have been. Without experience, he might not know exactly where to drive his vehicle in order to position it accurately under the hatch so as to receive the deposit of flour. There might be other practical difficulties in operating such a system universally. It is enough to say that, if indeed this had been the case of the appellant at the trial, it was essential that it should have been clearly pleaded, presented and argued. It should not have been signalled obliquely. The particulars do not clearly state such a case. The statement by counsel for the employer (accepted by other counsel) that the case based on the alleged alternative system of work was not relied on at the trial 6 UNREPORTED JUDGMENTS is borne out by the summary which Downs DCJ gave of the case which he had to deal with. In such circumstances, the only safe course is for this Court to confine itself to the case as so defined by Downs DCJ. This is unfortunate for the appellant. Had the case not been so confined at the trial it is quite possible that the appellant would have succeeded there in establishing the availability of an entirely viable alternative system of which the employer was aware and which its personal duty to the worker required that it should have ensured was observed in every case. The problem of preventability We now return to the case defined by Downs DCJ, as set out above. The appellant stressed the personal nature of the duty owed by the employer to the worker to devise and maintain a safe system of work. The appellant also stressed the fact that an employer is not absolved from his responsibilities to protect a worker by such a system of merely because the worker is experienced. General Cleaning Contractors Limited v Christmas [1953] AC 180, 189f. The contrary of these propositions was not contended by any party to the appeal. The appellant laid emphasis upon the failure by Downs DCJ to deal, in terms, with the various criticisms which he mounted concerning the failure of the employer to provide to its worker a safe system of work. Amongst those criticisms were: (a) The failure to provide the worker with instruction as to where he should stand on the tanker and how he should climb upon it; (b) The failure to provide a safety fence or railing on the tanker, other than a railing of about 70 centimetres in height which would afford the worker nothing to hang on to in the event of a sudden movement of the tanker; (c) The failure to provide the worker with anything at all to hang on to or with instructions in relation to what he should do if the tanker should move; (d) The reliance, for the worker's safety upon the attention and driving skills of the driver, who was not one of its employees; (e) The failure to provide the worker with assistance; (f) The failure to provide a warning system or device so as to permit the driver to warn the worker when the tanker was about to move; and (g) The failure to ensure that there was adequate light in the vicinity of the operation for evening work, the nearest light being between 7 and 10 metres away. It is true that Downs DCJ did not expressly refer to the duty which the employer owed to the worker. Nothing which he said indicated any doubt on his part that such a duty was owed. On the contrary, his catalogue of the alleged failures of the employer sufficiently indicates that he accepted that the duty was owed. He concentrated on whether its breach was causally related to the worker's injuries. Had his Honour considered that there was no duty in the circumstances, for whatever reason, it might have been expected that he would have said so. It seems unlikely that so rudimentary a principle of law would have been overlooked by him. Although expressed briefly and somewhat elliptically it is tolerably clear that the reason which led Downs DCJ to his conclusion that the third party claim should be rejected was his opinion that the causal link between the alleged defaults on the part of the employer and the worker's injuries in the circumstances described, was not made out. This conclusion has not been shown to be wrong. As to the failure to light the area adequately, it is not at all clear from the evidence that this had anything to do with the way the worker was injured. The area could have been floodlit (or the incident have taken place in broad daylight) and the sudden movement of the tanker would still have caused the URJ JONES v CASEY and ANOR (Kirby P, Samuels and Meagher JJA) 7 worker to be dislodged, thrown to the ground, suffering the injuries for which he sued. In that sense, the want of adequate lighting would not appear to be relevant to the precise way in which the injuries were sustained. As to the failure to provide footholds or handholds, it is true that the evidence showed a want of railing around the roof of the tanker such as could provide security to the worker in the event of a sudden and unexpected movement. However, the evidence did not show that the provision of such railings or other-"footholds or handholds" would have been feasible on such a tanker. Nor was any evidence called by the appellant to establish the practice of providing such footholds or handholds or the feasibility of affording railings that would prevent a fall in case of sudden movement of the tanker. Commonsense suggests that there may be difficulties in providing elevated railings. Not only would difficulties be presented by the need for a tanker to move on public highways, negotiating low bridges and tunnels. It was also shown to be necessary for the tanker to fit under the hopper silo in order to receive the flour from the hopper into its several apertures. It is not clear that this would be possible if the roof of the tanker had railings. It is not appropriate for the Court to use its own general knowledge about the feasibility of providing such railings on such a tanker. If that were the case of the appellant in its third party claim, it was incumbent upon him to call evidence of practice or expert evidence from which such a conclusion might be drawn. The appellant called no such evidence. And in many cases, even if some form of handhold had been provided, it was essential to the appellant's claim for contribution that it should have afforded such security as to prevent a fall not merely in the ordinary movement of the truck with due notice but also in the unexpected, unannounced movement such as occurred here. On the practicality of providing such security, the evidence is silent. So far as the failure to instruct the plaintiff either verbally or by signs is concerned, it is not clear how any such instruction could have been given which would have secured the worker from the danger of falling, in the event of a sudden movement of the tanker - save for an instruction never to climb upon it which must be excluded for the reasons already given. As to the want of supervision it is true, as the appellant says, that his Honour's treatment of this head of claim is too widely expressed if it suggests that the mere seniority of the worker, in the employ of the appellant, released the appellant from the duty to provide him with a safe system of work. We do not take his Honour to be saying this. In any case, even the provision of several supervisors for the worker whilst on the roof of the tanker would have been of no assistance to him in the event that the tanker driver, unexpectedly and without warning, moved off in such a way as to cause the worker to lose balance. For these reasons, we consider that, in the case presented at the trial, Downs DCJ reached a conclusion which was clearly open to him on the evidence, accepting as he did the testimony of the worker. That conclusion has not been demonstrated to be wrong. Accordingly, the appeal should be dismissed with costs. Counsel for the Appellant: PJ Deakin Solicitor for the Appellant: GM Meadows Counsel for the First Respondent: C Sandrasegara 8 UNREPORTED JUDGMENTS Solicitor for the First Respondent: Daved Landa Stewart Counsel for the Second Respondent: A Colefax Solicitor for the Second Respondent: Hunt and Hunt