DAHDAL v THE COMMONWEALTH OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY, and PRIESTLEY JJA 7 March 1991, 7 March 1991 [1991] NSWCA 73 NEGLIGENCE — EMPLOYER — SAFE SYSTEM AND PROPER INSTRUCTION — WORKER INJURED WHEN CEMENT BAG SLIPPED AND HE TWISTED HIS BACK NEGLIGENCE — employer — safe system and proper instruction inexperienced and disabled workers provided with work with the Commonwealth under Commonwealth Employment Programme — some instruction given on techniques of lifting weights — worker suffers diabetes — worker injured when cement bag 40 kgs slips and he twists his back. Held (1) The way the injury occurred was not the result of any defect in the employer's system of work. The alleged disabilities of the worker were irrelevant to the way the injury occurred; (2) the alleged excess of intervention by the trial judge in questioning of witnesses did not result in his reaching a wrong conclusion — Galea v Galea (1990) 19 NSWLR 263, 279 referred to — No point of principle. ORDER Appeal dismissed with costs. Mahoney JA On 8 April 1986 the plaintiff was injured while working for the defendant. On 10 April 1989 his claim against the defendant was heard and dismissed. He has brought an appeal to this Court against the dismissal of it. The facts as found by the learned judge have not been contested. There is no ground of appeal suggesting that the findings were wrong. His Honour stated the facts of the accident in the following way: "On the day of the accident Mr Johnson, who was in charge of him, said that he desired assistance in relation to some bags of cement which were to be transported to an area where a concrete slab was being laid by a labourer. The three bags of cement were each agreed to weigh approximately 40 kilograms or 88 lb. They were transported in the bucket of a low loader, or front end loader, and that was driven by Mr Johnson to the site where they were to be unloaded and the plaintiff rode upon the vehicle. The plaintiff said that when he reached the area in question the bucket was lowered to about waist level. He unloaded the first two bags without incident and, in the course of unloading the third bag, it slipped from his hand, and he said 'I was going to drop it and I tried to prevent it and I twisted and slipped and I was on the floor'. Apparently, he was standing in some sand." The plaintiff's account of the accident and what caused the injury was brief. His evidence in chief was to the effect that he had been asked to help with work relating to the construction of a concrete slab. He had been doing gardening before this and was asked by the person in charge of the site, Mr Johnson, to go across and help with the other work. He was taken to a store, as he described it, "to load some bags of cement". Three bags were loaded into the tractor and in particular into the bucket of the tractor. He then travelled on the tractor with Mr Johnson to the site in question. "Q. What happened? A. Mr Johnson told me 'We are in a hurry. We have to finish this slab before 4 0'clock'. 2 UNREPORTED JUDGMENTS Q. What time of the day was it? A. It was round 3 o'clock, afternoon, ten past 3, something, and he told me, 'We have to be in a hurry. Please you can help Rex.' I said, 'All right'. So when I start unloading the bags I unloaded 2 and the 3 one I was -- Q. Stop there. A. Yes. Q. You were told to unload the bags by Mr Johnson? A. Yes. HIS HONOUR: Q. How high was the bag above the ground when you unloaded these two bags? A. Up to my waist. Q. All you had to do was get the bag and put it on the ground? A. Take them and put them on the ground, yes. McCARTHY: Q. You went to the front of the tractor? A. Yes. Q. Which had the bags in them and what did you do? Physically, what did you do? A. Unloading the bags of cement, taking them from the bucket and put them in the middle of the site there. So that is what I was doing, and when I grabbed the third one it was going to drop, so I was going to -- HIS HONOUR: Q. When you got the third one what? A. It slipped from my hand, was going to drop off my hand, so I was trying to prevent it dropping. I twisted and slipped on the sand and then I was on the floor. That is what I remember. Q. What happened to the bag of cement? A. I had been told after that it was on top of me, I been told. McCARTHY: Q. You are on the ground? A. I was on the ground, yes. Q. Did you say anything? A. I don't remember I said anything." It appears from this that the bag, which was agreed to weigh about 88 pounds, was the third of the bags which the plaintiff had lifted from the bucket of the tractor, the bucket being, as he said, at waist level. The account which he gave was merely that the bag slipped from his hand. He was trying to prevent it dropping and in doing that he twisted and slipped on some sand and fell. That account of the accident does not in my opinion indicate any negligence on the part of the defendant. The case as it was pleaded by the plaintiff gave particulars of the alleged negligence as follows: "(a) Failure to provide a safe system of work so as to avoid injury to the plaintiff. (b) Failure to take adequate steps to avoid injury to the plaintiff. (c) Failure to warn the plaintiff of hidden dangers." The case that was put on behalf of the plaintiff by the senior counsel who had appeared for him at the trial was described by his Honour in the following fashion: "Senior counsel for the plaintiff submitted that the defendant was negligent in that, the plaintiff being inexperienced, it was necessary, or certainly reasonable care required, that he be given instruction as to how to carry out the task, or at least reminded again of the instructions which, according to Mr Johnson, he had earlier been given. It was submitted also that he should have been instructed as to how to deal with an object such as that which he was lifting if it got out of control to the extent that he was likely to drop it, and that, further, an alternative system could have been employed which involved the bucket of the loader being lowered to the ground and then tipped." This was the way in which apparently the case was presented at the trial. URJ DAHDAL v THE COMMONWEALTH OF AUSTRALIA (Mahoney JA) 3 The case as it was put here was to the effect, and I do not attempt to cover all of the various ways in which the case was attempted to be put, that there should have been some better warning of the plaintiff in relation to the dangers of lifting the particular bag. It was said that the plaintiff was a person who was not fit and that therefore particular warning should have been given. It was said that the warning which had been given, or the instruction which had been given generally to the plaintiff on the site by Mr Johnson, was not adequate for the purpose. I think the case for the plaintiff meets an initial difficulty in this regard because properly understood what happened does not seem to have arisen by reference to anything to which a warning of the kind which was suggested would have been relevant. As the evidence was all that happened was the plaintiff, having lifted two of the bags, started to lift the third and it slipped and it was because the bag slipped that the events which followed occurred. It was not suggested that the fact that it slipped from his hand, as he described it, was in any way due to any negligent system of work or to anything which the defendant could and should have done. I do not think that if the matter be viewed as a matter of causality any of the alleged deficiencies that were here argued for caused what happened. But in any event I do not think that there was anything proved to show that the system of work which was adopted was wrong. As Mr Johnson indicated, the bags were lifted from the bucket of the tractor at the level of the plaintiff's waist for the purpose of avoiding a difficulty that might occur if, as was suggested I think at one stage during the hearing, the bags should have been tumbled onto the ground and then lifted from there. That risk was of course that lifting bags of that weight from the ground might have (arguably, I express no opinion upon this matter) been apt to cause damage to a person's back or otherwise, if the proper process of lifting was not used. What happened was that the bags were kept at waist level to avoid the kinds of difficulties to which briefly I have referred. I do not think that there was any deficiency in the system which was adopted in this regard. As to the matter of further warning of the plaintiff in the manner to which reference has been made, as I have said I do not think that there was any causal relationship between any such lack of warning, if there was such, and what happened. But in any event I do not think that if there was a failure properly to warn in this regard the failure should be taken to be lack of care by the employer or a lack of proper system. The operation which was involved was a simple and straight forward one. If there were difficulties they were obvious difficulties against which no particular warning was required. I do not think that there was any negligence in asking the plaintiff to do the work that was in question. That does not seem to have been the case that was put for the plaintiff below. If and insofar as it was put here, I have doubt whether it was open to be put having regard to the course of the case below. But in any event I do not think that a warning was required against the possibility that one of three bags might slip from the hand of the person lifting it and fall to the ground with the consequent difficulties. Giving full effect to the submissions that have been made, I do not think that a case has been made out of negligence in this particular matter. Reference was made to the evidence of the expert, Mr Osman, and the questions which were asked of him by the learned judge. In the circumstances, having regard to the views which I have expressed, I do not think it necessary to pursue that matter further. In my opinion the appeal should be dismissed with costs. 4 UNREPORTED JUDGMENTS Kirby P Only two matters caused me to pause in reaching the conclusion which I, like Mahoney JA, have reached that this appeal should be dismissed. SUGGESTED FAILURE TO INSTRUCT DISADVANTAGED EMPLOYEES: The first was the suggestion that particular attention should have been taken by the Commonwealth, as employer, in discharge of its duty of care to provide a safe system of work to the appellant because he was a member of the Commonwealth Employment Programme. This was a wholly beneficial programme designed to provide work to persons who had been living on receipt of social security benefits for a time. Its object was to ease such persons back into employment and in this case in the service of the Commonwealth itself. The appellant, when injured, was working for the Commonwealth under this scheme. Counsel for the appellant suggested that in this sense he and other members of the Commonwealth Employment Programme were "conscripts" or, as he put it on one occasion, "crocks", who were brought into a work environment which was unfamiliar to do work "where they didn't belong". If it had been the case that the appellant had a particular vulnerability in his back and if it were shown that lack of instruction in respect of methods of carrying and lifting objects was the cause of the disabilities for which he sued, there might have been some force in this submission. However, when the case is examined, it is clear that Yeldham J recognised the fact that the appellant secured the work on which he was injured by virtue of the Commonwealth Employment Programme. This had been mentioned in evidence and was referred to in his Honour's reasons. It was not suggested in the evidence that the appellant by reason of the disability which had led him to participate in that programme was unfit for lifting forty kilograms, which was the weight of the object he lifted when injured, described as the smaller of two sizes of cement bags. In fact the appellant had been given a warning as to methods of negotiating lifts. Most importantly, as Mahoney JA has pointed out, when it comes to the actual cause of the appellant's injuries this had nothing to do with instruction or assistance. The actual cause of the appellant's injuries was the fact that the bag he was lifting slipped, occasioning the twist which led to the disability for which the appellant sued. Accordingly, the fact that the appellant had come to the service of the Commonwealth on the Commonwealth Employment Programme and the fact that in that sense he was a "conscript" had nothing causally to do with the way in which he received his injury. The criticism of the lack of relevant instruction which he received would seem to me to be completely without point in the circumstances of the case. The alleged disadvantage of the appellant was irrelevant to the way his injury occurred. SUGGESTED EXCESSIVE INTERVENTION BY TRIAL JUDGE: The second criticism of the trial which caused me to pause related to the suggested excessive intervention by the trial judge. It is true that a number of the questions which he asked, particularly of the expert Mr Osman, were framed in terms which are not conventional. For example, his reference to what "blind Freddy" would know perhaps put the witness, even one as expert as Mr Osman, in a disadvantageous position in providing his evidence to the court. On the other hand, as I pointed out in Galea v Galea (1990) 19 NSWLR 263, 279, there is an obligation in a judicial officer who has a developing belief about the facts of the case adverse to one party to expose such belief so that it can be answered by witnesses and be made the subject of addresses by counsel. There is no doubt that counsel in this case would have had a very clear prewarning of URJ DAHDAL v THE COMMONWEALTH OF AUSTRALIA (Priestley JA) 5 the way Yeldham J was thinking. They would have therefore had the opportunity, by evidence or address, to dissuade his Honour from his tentative opinion. But even if his Honour had sat totally silent during the evidence of Mr Osman the basal problem for the appellant's case remained. It was the problem of the precise way in which this incident occurred. For the reasons which Mahoney JA has elaborated, it is my opinion that the circumstances described by the appellant were not such as to point to any negligence on the part of the Commonwealth as his employer. ORDER: I therefore do not believe that Yeldham J reached a wrong conclusion. Accordingly, I do not believe that this Court should interfere with the judgment which followed the conclusion which he expressed. I agree the appeal should be dismissed with costs. Priestley JA In my opinion the evidence before the trial judge did not provideany basis for finding that it was the system of work which the plaintiff was engaged in which caused his injury in the sense necessary before a finding of negligence could be made. In my opinion the appeal should be dismissed with costs. KIRBY P: The order of the Court is the appeal is dismissed with costs. Counsel: Appellant - P. LANIGAN Counsel: Respondent - MS KM LEOTTA Solicitors: Appellant - ANTHONY MALOUF and CO Solicitors: Respondent - AUSTRALIAN GOVERNMENT SOLICITOR