AUSTRALIAN POSTAL COMMISSION v ABALOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MAHONEY and MEAGHER JJA 24 April 1991, 1 November 1991 [1991] NSWCA 10 NEGLIGENCE — whether defendant's failure to eliminate or minimise risk of injury showed want of reasonable care for plaintiff's safety — on the facts found it did — no question of principle. DAMAGES — quantum — no question of principle. NATURE OF JURISDICTION: REMITTED FROM HIGH COURT TO DETERMINE THE OUTSTANDING ISSUES. (MASON CJ, DEANE, DAWSON, GAUDRON AND McHUGH JJ). Samuels JA The plaintiff, who is the present respondent, sought to recover damages from the defendant, the present appellant, for injuries which she alleged had been negligently inflicted upon her while she was employed by the defendant as a mail office coder, the nub of her case being that the defendant had failed adequately to supervise the manner in which she physically performed her work. As a result, she contended that she had sustained bilateral lateral epicondylitis which is an inflammation of the protruding part of the humerus on the lateral aspect of the elbow joint. The plaintiff asserted, and Mathews J, the learned trial judge found, that by reason of the posture in which the plaintiff had held her right arm while depressing the keys on the equipment upon which she was required to work, she had increased the load on the relevant muscles of the arm and had, by that means, suffered epicondylitis in both arms, although, as her Honour found, the employment was a contributing factor to the condition of the right, but not of the left, arm. The learned judge found that the plaintiffs injury had been foreseeable; and, relying upon the evidence and the demonstrations of a Mrs Archer, a supervisor in the coding room, concluded that the coding operations in which the plaintiff was involved were capable of being carried out with a minimal risk of injury. Hence, the learned judge found that the defendant was in breach of its duty by not supervising the work of the plaintiff so as to ensure that she adopted "a correct, relaxed posture while performing her work." I should acknowledge at this point that I have had the unusual but extremely helpful opportunity of being able to draw the facts from a judgment of the High Court, and I am therefore respectfully indebted to the judgment of McHugh J in that respect (see Abalos v Australian Postal Commission (1990-91) 171 CLR 167. The plaintiff did not attempt to make a case that the system of work was defective although, as it turned out, there was much in the evidence of a certain Professor Ferguson, a pioneer in the study of ergonomics in Australia, to suggest that the way in which the coders were required to work was likely to be productive of injury. However, for whatever reason, the case made was one which depended upon lack of proper supervision; and it was that case which found favour with Mathews J. She, having found for the plaintiff in a careful reserved judgment and awarded damages, the defendant appealed to this Court on 2 UNREPORTED JUDGMENTS liability and quantum. We, by majority, Meagher JA and myself, Mahoney JA dissenting, came to the conclusion that her Honour was wrong to find that training or supervision would have protected the coders from the risk of injury which arose from the posture which, in the view of the majority, the system demanded. In short, Meagher JA and I were of the view (incorrectly, as the High Court later indicated) that the evidence of Professor Ferguson was such as to demonstrate that no amount of supervision was likely to have diminished the risk of injury. This Court having expressed that conclusion, the plaintiff sought and obtained special leave to appeal, and succeeded in the appeal to the High Court of Australia, to the report of which I have referred above. McHugh J, in writing the principal judgment, with which all the other justices agree, first pointed out that Meagher JA and I were wrong in our view of the evidence concerning the nature and effect of the system of work. He went on to observe that it was entirely a matter for the learned judge, free of any interference by an appellate court, to decide whether she would prefer, in the material respect, the evidence of Mrs Archer to the evidence (or to what the majority of the Court of Appeal supposed was the evidence) of Professor Ferguson. In doing so, his Honour reaffirmed the limitations by which appellate judges must abide in dealing with factual appeals from primary judges, and re-emphasised the self denial that they must exercise in those circumstances. Even if a trial judge makes no express reference to having obtained any assistance from the demeanour of the witness, it cannot be assumed that he or she derived no such benefit. As McHugh J pointed out at 179: "The subtle influence of demeanour on his or her determination cannot be overlooked", a proposition which liberates both primary and appellate judges. The High Court, having thus restored Mathews J's primary findings, remitted the matter to this Court for us to deal with "the outstanding issues." When the appeal was called on for that purpose, there was no initial agreement between counsel for the parties as to what the outstanding issues were. We had been supplied with further written submissions of considerable extent, at least on the defendant's side, and Mr Bennett QC for the defendant was at pains to remind us that some time had elapsed since we last examined the voluminous facts so that some refreshment of our minds on the topic would not be out of place. That exhortation was good so far as it went; or, rather, as far as the fresh matters to be determined went. According to Mr Jackson QC for the plaintiff, that was not very far at all. After discussion both sides agreed upon the issues which were outstanding and they were these: (1) what was called 'reasonableness'; and when I come to consider it, I will be able to indicate that I am not sure that each side regarded what was involved in the same way. (2) credibility; which could be divided into two sub-issues: (a) whether the injury to the right arm was work related, and (b) the use that could or could not or should or should not have been made at the trial of a diagram attached to a report dated 30 June 1987 by a Dr Revai, a psychiatrist who examined the plaintiff to determine whether, amongst her other complaints, she was suffering from some form of functional disability. (3) a question of admissibility; that is, of two articles jointly written by Professor Ferguson and a Ms Duncan who was, at the relevant time, his assistant. (4) damages; which the defendant contended were excessive. URJ AUSTRALIAN POSTAL COMMISSION v ABALOS (Samuels JA) 3 In dealing with these matters, which I will examine in turn, it is as well to bear in mind that apart from the issue of damages, much of the matter which they involve has already been investigated during the course of the appeal although, because of the view to which the majority came, it was unnecessary to recite all the findings which the grounds of the appeal and the argument legitimately authorised. This is particularly the case, I think, in relation to the first matter which is said to be the reasonableness of the precautions which the defendant might have taken to avert or diminish the risk of injury to the plaintiff. In my view it follows from McHugh J's judgment that Mathews J's findings, in terms which I will set out in a moment, is now quite beyond challenge. Her Honour said: "T have already indicated my view that the coding operations were capable of being carried out with a minimum risk of injury to the coders. Mrs Archer's demonstrations provided ample support for this. The problem is, however, that Mrs Archer's easy, relaxed style was not adopted by all coders. Had there been proper training and supervision for coders, given by people who had knowledge of the relevant risk factors and the skill to impart that information, then I am prepared to accept that the risk of injury would have been minimal. Mrs Abalos would almost certainly not have sustained her injury." And then her Honour continues, after citing authority, with a further finding which enjoys the same immunity. She said: "Accordingly, all the ingredients necessary for a finding of negligence (causation, and the existence of reasonably available means to obviate the risk of injury) have been established on the evidence, with the exception of the vital component of foreseeability." I think that when the parties were talking about reasonableness they were intending to indicate what is described in the first and seminal edition of Glass and McHugh's "The Liability of Employers" (1966) at 18, as the fourth of four distinct issues; that is, the issue of reasonableness in the sense that the defendant's failure to eliminate the risk of injury showed a want of reasonable care for the plaintiff's safety. It could not have been the question of whether there were reasonably practicable means of obviating the risk because that had been, beyond doubt, disposed of by the operation of the High Court's judgment upon the learned trial judge's findings of fact. However, when Mathews J speaks of "the existence of reasonably available means to obviate the risk of injury", she might be taken to be referring only to what Glass and McHugh (if I may continue to refer to those learned authors in that way) would identify is the second of the four issues, that is, the preventability issue, or the availability of reasonably practicable means of obviating the risk - or of diminishing it. However, it does not now matter, in my view, how one regards the precise formulation of the proposition in the judgment below. It must be taken to be clear that the High Court regarded the demonstration of Mrs Archer, which the trial judge accepted, as showing that there was a way of doing what the plaintiff was required to do in a way which would have rendered the risk of injury minimal. All that was necessary to convey this recipe for trouble free operation was proper training and supervision of a kind which must have been readily within the resources of the defendant and thus reasonably available to it. However, the defendant argues that the absence of complaint from the coders and the small number of injuries which had previously been sustained of the general kind in contention here, established or, at least, tended to establish, that the risk, though, of course, foreseeable, was so fanciful that the defendant was justified in ignoring 4 UNREPORTED JUDGMENTS any remedial measures: see The Council of the Shire of Wyong v Shirt and Ors (1979-80) 146 CLR 40, in particular at 48, although that case was one which addressed foreseeability rather than breach. Nevertheless, Mason J there went on to point out that the magnitude of a risk and its degree of probability were considerations, along with other relevant factors, in determining whether there was in any particular case a breach of the duty to guard against a foreseeable risk. On the evidence in the present case, and I include the evidence of Professor Ferguson, I am of the opinion that the learned judge was not in error in concluding, as she evidently did, that the defendant acted unreasonably in failing to adopt the kind of supervision which Mrs Archer had demonstrated and which, according to the learned judge, would have rendered minimal the chances of the plaintiffs injury occurring. As to credibility, I do not see how it is possibly open to the defendant now to suggest that the plaintiffs credibility has been damaged to the extent that the admittedly somewhat curious fact that the injury to one arm was work related and the injury to the other was not, should be set aside. The learned judge must have been profoundly influenced by her assessment of the appellant's demeanour in coming to the conclusion that she was "on the whole.... a truthful witness" although certainly exaggerating her symptoms. Having re-read the plaintiff's evidence and much of the relevant medical evidence, I am not persuaded that this ground has any substance. Dr Revai, to whom I have already referred, in the course of his evidence, produced a diagram, that is to say, a simple depiction of a female figure, front and rear, upon which he said he had asked the plaintiff to mark the areas where she felt pain. This she did, and there were some such indications on the figure, which was then tendered and admitted without objection. Then Dr Revai, having agreed that he had read the whole of the appellant's evidence, was asked these questions: "Q. And in consequence of reading over the evidence, do you wish to add to, alter or in any way modify the views expressed in your two previous reports, or either of them? A. As a consequence of reading that evidence, I felt there were some inconsistencies in the history she had given me compared with that what was given in court. HER HONOUR: Q. On what matters, doctor? A. Her education, her work in San Diego, her relationship between the first and second job in Australia, and about the baby-sitter. MR ABADEE: Q. But having regard to reading that evidence, did that cause you to alter the view expressed on, I think, two occasions, when she did not appear to be suffering from any psychiatric disorder? A. It didn't change that." The learned judge, dealing with the diagram, said that the marks made upon it were entirely inconsistent with the description which the appellant had given in evidence of the pain in her arm; and, presumably, this point was made during the final address of counsel for the defendant. Mathews J observed however that the plaintiff had not been cross-examined about the diagram which had not been produced in court until the doctor himself gave evidence, although his reports had been tendered at the outset of the proceeding, and the diagram was referred to in one of those reports. She concluded that, in the light of the defendant's failure to cross-examine the plaintiff about the diagram, she could not use it to discredit the plaintiff and, on the contrary, should make the assumption most favourable to the plaintiff about it; and she disregarded completely what might otherwise have been used as a powerful means of discrediting the plaintiff. URJ AUSTRALIAN POSTAL COMMISSION v ABALOS (Samuels JA) 5 The defendant argued that the learned judge was entirely wrong in the way in which she approached the diagram. First, it is said that it was tendered without objection, as indeed it was. However, I fail to see how any reasonable objection could have been raised to it since it was not merely a pictorial representation of part of the plaintiffs history but an admission as well. Then, it is said that there was no cross-examination of Dr Revai "in respect of its accuracy" and that the plaintiff was not called in reply to answer it; and there were other complaints made about her Honour's refusal to give the diagram any weight, including the objection that the plaintiff was not recalled (by her own counsel) to reply to it. In my view the defendant's arguments are without substance. The plaintiff was cross-examined about her two visits to Dr Revai. She was asked whether she remembered his "giving you a pen to do some writing?" She gave a non-responsive answer and the question was not pursued. But counsel then asked her a number of questions about her having undertaken a course at St George Technical College, and being engaged at the time of trial in a program at Sydney Technical College, and her ability to take notes or write assignments, a capacity which she discounted. She was asked: "Q. You made no complaint to Dr Revai about being able to do any of that activity, did you? A. No, because I didn't write 11 Cc) 0b EEE Q. You don't do any of the written assignments yourself at all? A. Not most of them, no. Q. Why not? A. Because I am not able to write that long. Q. Why not? A. Because I have pain in my arm." Now, in Dr Revai's second report, that of 30 June 1987, at 5 the following appears: "........ she had no difficulty using a pen in her right hand to mark areas of pain on a diagram I gave to her." And in the following paragraph: "... her active studies now certainly indicate that she has no trouble writing." It seems to me, since there is no other reference in either report to the plaintiffs being given a pen for any purpose, that it was to the incident Dr Revai described that cross-examining counsel was referring. And the purpose of marking the diagram was to obtain a demonstration of the plaintiff's capacity to use a pen, rather than an indication of the location of her pain. However, the diagram might have served a dual purpose. But both as a matter of well known principles which control procedural fairness, and having regard to the particular context of the cross-examination which I have briefly indicated, the diagram ought to have been put to the plaintiff in cross-examination if it was intended to employ it later to discredit her on any account. It was not. Nor, indeed, did Dr Revai list it among the inconsistencies mentioned in his evidence. In those circumstances it is quite misconceived to suggest that Dr Revai should have been cross-examined about it, or the plaintiff recalled by her own counsel to respond to a point which had never explicitly been made. There is nothing in this ground. Next, it was submitted that two articles jointly written by Professor Ferguson and Ms Duncan and published in 1974 ought not to have been admitted. The contention was that they dealt not with the one handed coding operation, but with the two handed work of telegraphers and/or typists employed upon a different style of keyboard. I would myself have thought that, granted the basic correctness of this reservation, the substance of the articles would certainly have tended to indicate that incorrect posture was likely to be a factor conducing to injury in the case of any operator carrying out the same general type of activity as that in which the plaintiff was engaged. The fact that the subject matter of the 6 UNREPORTED JUDGMENTS investigations written up in these articles was a two handed operation by no means eliminates them as useful indications of the chance of some kind of repetitive strain injury in the absence of proper posture, and, indeed, as an appropriate approach to the movements involved. In any case, it seems to me that the objection to these documents is now far too stale to be worth considering. The learned judge found that the risk of injury, of the general type which the plaintiff sustained, was reasonably foreseeable and she did so founding upon the evidence of Professor Ferguson and his communication of his opinion about the operation to the defendant's representatives: see 171 CLR at 171. In these circumstances, even if the submission about admissibility had substance, and I do not think that it has, I do not consider that the requirements of Pt51 r16 have been satisfied and I would not, therefore, grant any relief in respect of their improper admission, if that were the correct conclusion. Finally, it is contended that the damages were excessive. In my view, there is no ground whatever upon which this submission can be made good. The learned judge assessed the damages with great care and considerable discrimination. I mean by that that she made an analysis of the evidence which, amongst other things, took full account of her opinion that the plaintiff had been exaggerating her symptoms and that her actual working capacity "has been greater than she now alleges". In these circumstances, the sums allowed for loss of wages accrued to trial, which was a figure reduced by one third from the amount claimed, and that awarded for diminished earning capacity in the future are, in my view, well within the range open to the learned judge. I agree also that it was proper in the circumstances of the case to reduce the discount for vicissitudes from what had, by the time of the assessment, become, I think, a conventional figure of 15%, to 10% in this case. Finally, the award of $40,000 for pain and suffering and the like, three quarters to the past and one quarter allocated to the future, was an entirely unexceptionable award. For these reasons, I would dismiss the appeal with costs. Mahoney JA As Samuels JA has indicated, this proceeding has been returned to this Court by the High Court of Australia for the determination of the outstanding issues. Upon the resumed hearing before this Court, Mr Bennett QC, for the Commission, contended that the matters outstanding covered a wide area and he made submissions in respect of a substantial number of matters, those submissions comprising some fifty paragraphs or more. Mr Jackson QC, for the plaintiff, submitted that there was, apart from the issue of damages, "not a great deal more" to be determined. I agree with the judgment of Samuels JA. However, in deference to the submissions made by Mr Bennett QC, I shall add some observations of my own. As far as now is in question, the plaintiff's claims was for damages because she suffered injury to her right arm by reason of the negligence of the Commission in the manner in which it conducted the operations in which the plaintiff was engaged. In the proceedings before the High Court, the Commission contested at least two issues: whether it was reasonably foreseeable by the Commission at the relevant time that failure properly to supervise the relevant employees was apt to give rise to a risk of injury; and whether proper supervision of the plaintiff and those working with her would have made the risk of injury to her minimal. The High Court found against the Commission in respect of each of these matters. It is, perhaps, not clear whether the finding of the High Court was merely that it was open to the learned trial judge to find for the plaintiff upon each of these issues URJ AUSTRALIAN POSTAL COMMISSION v ABALOS (Mahoney JA) 7 or whether in fact her finding on each of them should be accepted to be correct. It is not necessary to pursue this matter because, in my opinion, if one of the outstanding issues to be determined by this Court is whether her Honour was right in deciding each of the issues for the plaintiff, my conclusion is that she was. On that basis, there should, in my opinion, be judgment for the plaintiff on the issue of liability. The plaintiff's case, insofar as it now remains for decision, is that the Commission failed to set up and maintain a proper system of work, that for that reason it was negligent, and that that negligence caused the plaintiff's disability in her right arm. In a practical sense, the conclusion that it was reasonably foreseeable that the Commission's failure to supervise the employees gave rise to a risk of injury established a duty in the Commission to take appropriate precautions: Wyong Shire Council v Shirt (1980) 146 CLR 40. It was then for the plaintiff to establish that the Commission did not fulfil the duty so imposed on it. That duty, in practical terms, was to remove the risk of injury to which I have referred. What it was required by the law of negligence to do was to be determined in accordance with what was said by Mason CJ in Wyong Shire Council v Shirt. As the case was conducted, the plaintiff's claim was that, to discharge that duty, the Commission should have provided proper supervision of the posture of the coding section of which the plaintiff was a member. As I have indicated, the proper conclusion is that proper supervision would have made the risk of injury to the plaintiff minimal. That, in practical terms, means that had there been proper supervision, that supervision would have caused the plaintiff to adopt a proper posture and so not to be injured: at the least, it would have made the likelihood of her not adopting a proper posture and so of being injured "minimal". Mr Bennett's main submissions in this regard were, that notwithstanding this, the Court should conclude that the provision of supervision was not a reasonable step to be taken by the Commission and that (if it was) the failure to provide it did not cause the plaintiff's disability. I do not think that those submissions should be accepted. If it was foreseeable that failure to supervise would give rise to a risk of injury and if proper supervision would have minimalised (sic?) that risk, it is difficult to see why, in the context, it was not reasonable for the Commission to provide the supervision. Reasonableness in this regard is to be determined by reference to the matters referred to by Mason CJ in Wyong Shire Council v Shirt. Subject to one matter, the provision of the relevant supervision did not involve, for example, such a strain on the Commission's resources as would make it unreasonable to require the provision of it. It was, I think, suggested by Mr Bennett or by one of his submissions that it was not reasonable to expect the Commission to provide the supervision because at the relevant time the Commission could not be expected to realise that supervision was to be provided. The suggestion was, I think, that whilst supervision would have reduced the risk to minimal proportions, the state of knowledge was such that the desirability of providing supervision was not recognised. For this reason it was not reasonable to expect the Commission to provide it. 8 UNREPORTED JUDGMENTS I do not think that that reasoning should be accepted. If and insofar as it is not pre-empted by the decision of the High Court, I would conclude on the evidence that the need for some kind of supervision to maintain a proper system of work should have been seen by the Commission at the relevant time. I see nothing unreasonable in the requirement that, on the facts of this case, a prudent employer should provide such supervision. Mr Bennett submitted that failure to provide the supervision did not cause the condition of the plaintiff's right arm. It is, in my opinion, difficult to maintain this submission if it be accepted that proper supervision would have reduced the risk to minimal proportions and the Commission knew that to be so. Those conclusions involve, in the circumstances of this case, that it was failure to provide the supervision which allowed the risk of injury to the plaintiff to arise. It remained, of course, for the plaintiff to show that her injury in fact resulted from that risk. Mr Bennett pointed to a number of matters which, he submitted, showed the unlikelihood of injury to the plaintiff's right arm. He referred, for example, to the evidence in respect of the left arm. But once it be accepted, as it has been, that the plaintiff suffered injury to her right arm, then, there being no other reason established for the condition of the right arm, it is proper to infer that the state of affairs giving rise to the risk in fact caused the injury. I agree with what has been said by Samuels JA in respect of the other submissions made for the Commission. Meagher JA I agree with Samuels JA. The appeal is dismissed with costs. Counsel for the Appellant: D M J BENNETT QC/P JONES Counsel for the Respondent: D F JACKSON QC/A BARRIE Solicitors for the Appellant: AUSTRALIAN GOVERNMENT SOLICITOR Solicitors for the Respondent: STEVE MASSELOS and CO