ANNEAS BONFIGLIOLI v R W WINNING PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, HANDLEY JA and POWELL JA 8 December 1993 [1993] NSWCA 28 NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — NOT ESTABLISHED BY WORKER OPERATING UNDER EMPLOYER'S SYSTEM OF WORK. DAMAGES — ASSESSMENT — BELOW PERMISSIBLE RANGE — REASSESSMENT BY THE COURT. Clarke JA. The appellant was injured in the course of his employment with the respondent in the early 1980s. He did not allege a frank injury but asserted that the respondent devised and maintained an unsafe system of work which had led the appellant to serious back problems. He sued to recover damages and his case was heard by Newman J and a jury. At the end of the trial the jury found that the respondent had been negligent, that the appellant had been guilty of contributory negligence, and that damages should be assessed at $130,000. In due course his Honour entered judgment for $52,591.83 reflecting the impact of workers" compensation payments on the assessment of damages. The appellant has appealed from the decision and in the appeal has challenged the finding of contributory negligence and the assessment of damages. It is convenient to deal, first, with those questions concerning contributory negligence which were debated before the court. At the outset I should point out that although the major ground of appeal was that there was no evidence of contributory negligence counsel for the appellant (whowas different counsel to the counsel appearing on the appeal) did not ever seek to have the issue of contributory negligence withdrawn from the jury. There is a suggestion in the written submissions of the respondent that this is an important consideration and that the court should not interfere unless satisfied that some substantial wrong or miscarriage has been occasioned. I would, in general, agree with the proposition that the court should not interfere and grant a new trial or make other orders allowing the appeal unless there has been, in the circumstances, a miscarriage of justice but, as it seems to me, a finding of contributory negligence in the absence of evidence supporting that finding constitutes a miscarriage of sufficient significance to allow this Court to interfere. The question then is whether there was evidence of contributory negligence and, if so, whether the apportionment of 50 per cent was an apportionment to which no reasonable jury could come. The appellant had been born in the United Kingdom and had migrated to Australia in 1980. In the middle of 1981 he commenced employment with the respondent, which is a retailer of white goods, as a storeman at its depot at Marriott Street Redfern. During the period from 1981 to the end of 1983 he was concerned primarily with working in the Marriott Street depot although from time to time he was required to work at other premises of the respondents at 2 UNREPORTED JUDGMENTS Bourke Street Redfern. In early 1984 the respondent moved its premises to Phillip Street Redfern but the evidence in this case demonstrates that it was the appellant's activities at Marriott Street, and perhaps Bourke Street, which caused his disabilities. One of his primary tasks as a storeman was to unload semi-trailers loaded with washing machines and similar white goods which arrived at the depot. It was his case that the system devised by the respondent for the unloading of the white goods was an unsafe one and that it led eventually and inevitably to his serious backdisability. The case was summed up by the learned trial judge in his summing-up in these terms: It is the plaintiff's case in particular, as I would understand the evidence, that the system which was in operation of loading two cartons of white goods, having to push them down a ramp using one shoulder to steady the load, was an operation a system which the employer should have foreseen would give rise to a risk of a twisting injury. That is the plaintiff's allegation in relation to the system of work. It is the plaintiff's case, again as I would understand the evidence, not that the system was one which the plaintiff was instructed to use, but one that he adopted by seeing others use it. The plaintiff's case is, again as I understand it, that steps should have been taken to instruct the plaintiff not to move two cartons at the one time on the trolley but one at a time, or to use other equipment. This was, in my opinion, a reasonable description of the primary case advanced by the appellant. In amplification I should point out that when semi-trailers arrived at the depot they reversed into an area where there were loading docks. These docks were about two feet lower than the deck of the semi-trailer. Accordingly it was necessary for a ramp to be constructed and placed between the deck of the trailer and the loading dock down which the cartons of white goods were transported. One end of the ramp was secured to the deck of the semi-trailer and it was about six feet wide. The system followed by the appellant was to take a trolley about four feet six inches long and about three feet wide on to the semi-trailer, negotiate two cartons of white goods on to the trolley, turn it around and guide it down to the loading dock. Because the cartons were about four foot high the upper of the two was not in a stable position when being taken down the ramp, and the appellant adopted the practice of twisting his body around and putting his shoulder against the top carton in order to give it some stability. The operation, therefore, involved him in wheeling down the ramp, which was relatively steep, a trolley on which there weretwo heavy cartons while he was in a twisted position with a shoulder against the uppermost carton. It is this activity which, on his case, gave rise to the foreseeable risk of a twisting injury. In his evidence he was asked how he came to adopt that practice and he initially said that he did so through helping Mr John Winning, his boss, and being told by him what had to be done. Later he was asked the following questions and gave the following answers: Q. Why was it you put two cartons on the trolley? A. It was the way it was done I guess. Before you did it had you watched anyone else do it? A. Yes. Who had you watched? A. John Winnings certainly. Was that the way he did it, with two cartons on the trolley? A. Yes. eee URJ ANNEAS BONFIGLIOLI v R W WINNING PTY LTD (Clarke JA) 3 He then went on to amplify the method of transporting the cartons down the ramp and he summed up by saying that it was an awkward task in that he was required to go down an incline having to hold the cartons while in a twisted position. His evidence was supported by that of an expert, Mr Colin Simpson, who was a professional engineer. It is unnecessary for present purposes to detail the content of his evidence. It should, however, be pointed out that he gave clear evidence that there were alternative and preferable systems, some of which — such as the use of a strap — could have been employed with little expense and no disruption to the general work. There were, however, other systems to which he drew attention which it could be said are in operation widely throughout industry. The respondent called no evidence. Consequently the factual case advanced by the appellant was not called in question or contradicted. In these circumstances it is not surprising to find that the jury considered that the appellant had made out his case that his injury had resulted from a failure on the part of the respondent toemploy and maintain a safe system of work. The issue of contributory negligence and the jury's determination of the issue is, however, more difficult to understand. His Honour's directions to the jury on this issue were concise and, without wishing to be unfair to his Honour, it would seem that he overlooked amplification of his short statement of the issue. What his Honour said was as follows: Now the evidence in relation to that is the evidence I have referred to as to the plaintiff being able to obtain assistance, use of the hoist at Marriott Street and Bourke Street and the use of forklifts at Phillips Street and I have already referred you to that evidence and that is the evidence upon which the defendant relies and I will come back to counsel's arguments later on. There is, however, no other material in the summing up directed to that issue except statements concerning the onus which were, it is conceded, accurate. One can immediately dismiss the question of the use of forklifts at Phillip Street for the reason that, as I have already indicated, the appellant had sustained his injury before the respondent moved to Phillip Street. There was evidence concerning the use of a hoist at Marriott Street, and, to a lesser extent, at Bourke Street, but as I have understood that evidence, it related to the movement of the cartons in the depot or store and the loading of them on to shelves. It was never suggested in evidence or in cross-examination that the hoists could have been effectively used for the unloading of the semi-trailers. In any event the appellant said that while he was able to get some assistance from semi-trailer drivers on the loading of his trolley, and there were other persons available to give assistance, there was really no safe way for two persons to work on the wheeling of the trolley down the ramp. Given that the trolley was three feet wide and was loaded with two large cartons and the ramp itself was only six feet wide the spectacle of two persons trying to carry out the task is a rather difficult one to conjure up. The appellant's evidence as to the impracticability of the use of an assistant in this operation was not contradicted and there does not seem to me to have been any rational basis upon which the jury could have rejected it. As I have earlier indicated the appellant gave evidence concerning the use of a hoist in Marriott Street and he was asked in cross-examination whether or not it was his responsibility to get the cartons on to the shelves and whether or not he had a hoist available for that purpose and he said that he did. He was then asked 4 UNREPORTED JUDGMENTS whether he could have used that hoist to do the stacking and he said he did not use it because there was not enough room in the store to enable him to do so. He was asked whether he had used an assistant in the stacking and again he said no for the same reason. In essence he said that the passageways were very confined and there was no practical way of getting a loading hoist down that confined space, and no way of two people working in it. As I have said, it was never suggested that the loading hoist could be used for the unloading of the semi-trailer although it must be said there was some confusion in the evidence. In argument before this Court Mr Toomey QC, who appeared for the respondent, relied again on the availability of assistance and the hoist. He said that the plaintiff's case was really two-fold. First was the complaint about the unloading of the semi-trailer, and second, was a complaint about the loading of the cartons on to the shelves and he said, in the second respect, the hoist was clearly available and the appellant was negligent in failing to take advantage of it. However, the appellant gave evidence which led to an inevitable conclusion that it was not practicable to use the hoist in the loading operation or indeed to avail oneself of the use of assistants, and that evidence was never contradicted. Given that if his evidence was wrong it would have been a simple matter for the respondent to contradict it there does not seem to me there was an issue to be left to the jury as to whether or not the appellant should have sought assistance or should have used thehoist. Mr Toomey, however, put at the forefront of his argument a submission that the appellant was aware that it was uncomfortable to carry out the operation which he was required to do, and that he was clearly careless in failing to draw to the employer's attention the shortcomings of the operation, or in seeking some assistance from his employer, either in the way of provision of other material, or a different system. The submission assumes, correctly, that the employer was negligent itself in failing to employ a safe system of work but suggests that an employee who merely does his job, even though troubled by it, is guilty of contributory negligence, or could be found to be guilty of contributory negligence. In my opinion this turns the relationship of master and servant on his head. An employee is employed to do a task in the manner in which he was instructed or in accordance with the system operating in the employer's premises. If he dutifully does that job in either of the two manners I have suggested I do not see how it can be said that he has been guilty of contributory negligence because he did not bring his employer to task for failing to install a safe system of work. It is the obligation of the employer to install such a system of work and I cannot accept that, if the employee simply follows it, he or she can be liable to be found guilty of contributory negligence. The point was well made by Sir Owen Dixon in Davies v Adelaide Chemical & Fertiliser Limited 74 CLR 541. In that case his Honour made a number of pertinent statements but I wish to refer only to the statement which appears at p 551 and reads: At all events I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but on the contrary was performing his duties accordingto his habitual and long-standing practice for which he had the apparent, and as I think actual, approval of the factory management who treated it as part of his ordinary work. URJ ANNEAS BONFIGLIOLI v R W WINNING PTY LTD (Clarke JA) 5 That statement was cited with approval by Gibbs CJ in Illiopoulis v Victorian Railways Board 55 ALJR 668 at 672 and is as valid today, in my opinion, as it was when Sir Owen Dixon said it. In this case the uncontradicted evidence established that the appellant worked under a system following upon the example set by his boss, Mr John Winning and, contrary to his Honour's statement in the summing-up following the direction given by Mr Winning. I am simply unable to accept that in carrying out his work on behalf of his employer he showed any want of care and, in my opinion, there is no evidence of contributory negligence. I would, therefore, uphold the appeal on that ground. During argument Mr Branson QC, who appeared for the appellant, accepted that there may be some cost consequences of his predecessor's failure to seek a directed verdict, but I can put that matter to one side for the moment. There is the second ground of appeal to be dealt with. Again the respondent called no evidence and, as there was no conflict between the two doctors called by the appellant and, subject to one matter, no real challenge to the appellant's evidence, it is clear that the task of the jury was to evaluate the claim made by the appellant and to place a monetary value on it. The appellant was born in September 1951 and was, therefore, at the time of trial, 39 years old. He had worked solidly throughout his early life and, as I have earlier indicated, had worked from 1981 to 1984 for the respondent in the one job. In November 1984 he was forced to cease working. The injuries in the course of his employment and the continuing disabilities were all set out at length by his Honour in the summing-up. It is not, I think, necessary for me to repeat the detail of those matters. What was clearly establishedwas that the appellant sustained a disc protrusion in the area of L5/S1 with consequential nerve root damage and that while there was some resolution of the protrusion in that area that did not lead to a resolution of the appellant's back conditions. In fact there was a bulge at a higher level detectable on myelogram and, as Dr Bleazel said, the fact that the lower disc was no longer impinging on the nerve did not mean that the nerve was cured. Both Drs Vandenberg and Bleazel expressed the opinion that the appellant was permanently unfit to carry out any work of the type he was doing in the respondent's employ. Neither suggests he was a cripple and could not do any work and, in fact, the appellant himself never made that claim. What he said, and what he was supported in, was that he was restricted to sedentary work. Even with that work, according to Dr Vandenberg, he would have discomfort if he was required to sit for long periods or stand for long periods. Both doctors thought that he would not get better in the future but would probably get worse and Dr Vandenberg expressed the opinion that he may require surgery. That was, however, only a possibility of which account needed to be taken in assessing the damages. The appellant was married at the time he was working for the respondent and his former wife gave evidence on his behalf at the trial. She said that from 1984 onwards he was constantly complaining of back pain and he seemed to lose confidence. She also said that he lay on the floor for long periods and during this time their matrimonial relationship deteriorated to the extent she ultimately left home. They were subsequently divorced and the appellant's former wife was not contradicted or challenged on her evidence. 6 UNREPORTED JUDGMENTS During the years 1984 to 1986 the appellant underwent extensive physiotherapy treatment and rehabilitation at Queen Elizabeth II. He gave evidence that a lot of the pleasures of life, such as playing golf and tennis and six-man soccer were now not open to him, and he missed them. He said that he didthe future. The out-of-pocket expenses were agreed in the sum of $6,518.77. The difference between the wages he would have earned if he remained working at Winnings and what he had earned was $70,780 and, as I have already earlier indicated, he was at the time of trial earning $93 per week less than if he were still at Winnings. Bearing in mind the age of the appellant and the severity of his condition it is difficult to understand how the jury could have arrived at a verdict of $130,000. Mr Branson has put before the court two suggested reassessment figures which vary between $235,000 and $275,000. The assumptions which are common to both those are that the appellant should have been awarded $80,000 general damages, past economic loss of $70,000 and either $80,000 or $120,000 compensation for future economic impairment. For his part Mr Toomey sought to support the verdict by pointing out that general damages of $40,000 could have been awarded, past economic loss of $35,000 could have been awarded and a reasonable allowance for the future would have been $65,000. Upon Mr Toomey's figures the jury could have brought in a verdict of $146,000 and, given the close proximity of that amount to the amount awarded, this Court could, or should, not interfere. Of course Mr Toomey is right to point out that this Court will only interfere with a jury's assessment of damages when the amount awarded is so small as to be unreasonable and such that no jury could reasonably have awarded it — Precision Plastics Pty Limited v Demir (1975) 132 CLR 362 — and Mr Toomey was also correct when he said that the court was bound, in considering the present submission, to take the view of the evidence most favourable to the respondent. What cannot be left out of account, however, is that there was no significant challenge to any part of the appellant's case during the trial. There were argumentsput forward which might have led a jury to moderate its verdict but there was no evidence to call in question anything the appellant, or his witnesses, had said. Nor was there, in my opinion, any real attack on the appellant's credit. The jury was, therefore, bound to evaluate a case in which a relatively young man had sustained a serious back injury which had left him with significant disabilities for the rest of his life. In my opinion Mr Toomey's figure of $40,000 for general damages is so far out of accord with the general range of awards for this type of injury as to be unsustainable. Likewise, I do not think that either of the amounts for past economic loss or future economic loss which were suggested to me could reasonably have been awarded by the jury. During the course of the hearing I endeavoured to determine what was the lowest possible verdict taking a completely adverse view of the appellant's case, and the figure which I then arrived at was in excess of $160,000. That figure is different from the figure awarded to such an extent that, in my view, the jury verdict cannot be allowed to stand. It simply was below the permissible level or range in the light of the case which it was evaluating. Accordingly, I am of opinion that the jury verdict should be set aside. The question which then arises is what the court should now do. Mr Branson sought that the court reassess the damages and Mr Toomey resisted that course. Mr Toomey pointed out, with some force, that the jury were in the best position URJ ANNEAS BONFIGLIOLI v R W WINNING PTY LTD (Powell JA) 7 to evaluate the appellant, and this Court should not take over that role from the jury but leave it to a new trial. We were also referred to the decision of the High Court in Shehata v Montague L Meyer Pty Limited 51 ALJR 77. That was a case in which there was a very serious credit issue. In the circumstances of this case 5 my opinion is that the court is, conformably with s 107, fully able to assess the damages in the light of the fact that the evidence in the case was really all one way and we should, in order to avoid costs and delay involved in a second trial, take that course. Upon a reassessment I would award the following damages. General damages 10 $70,000; out-of-pocket expenses $6,518; past economic loss $60,000 (I would allow a discount to give effect to the weight of the submissions made by Mr Toomey as to both the fishing venture and the lost year) and for future economic loss I would allow $80,000. In arriving at that figure I have adopted, as the trial judge instructed the jury, a multiplier of $923 and have made only a relatively 15 small discount from the calculation using $100 per week. The reason I have only made a relatively small discount is that I think that there is a need for some form of buffer which limits the amount that should be deducted for vicissitudes. Accordingly, I would award $216,518 as the appropriate award to be substituted. I turn, then, to the question of costs. Mr Branson was correct in his concession 20 that generally speaking where a party fails, without explanation, to seek a direction which should have been sought that failure may be reflected in an appropriate costs order. However, a complicating factor in this case is that an appeal was necessary in any event in order to correct the unreasonably low award of damages. In the circumstances I see no reason why the costs should not follow 25 the event. The respondent should, of course, have, if entitled, a certificate under the Suitors Fund Act. I will not announce any orders because the detail of the workers" compensation payments has not been brought to our attention and it will be necessary for the parties to bring in short minutes reflecting the reasons of the 30 court. Handley JA. I agree. Powell JA. I also agree. 35 Orders accordingly. Counsel for the appellant: C BRANSON QC and P J McGRATH Solicitors for the appellant: WASHINGTON FLYNN: Mudgee by their city agents McGirr James Hall and Associates Counsel for the respondent: B TOOMEY QC and C McDONALD Solicitors for the respondent: MORAY and AGNEW