WILSON BROS TIMBER CARTAGE PTY LTD vy LLOYD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and COLE JJA 14 September 1995, 29 September 1995 [1995] NSWCA 518 NEGLIGENCE — LIABILITY — WHETHER SAFE SYSTEM OF WORK PROVIDED WHETHER RISK WAS FORESEEABLE DAMAGES — DISCOUNT FOR CHANCE OF REMARRIAGE FACTS The deceased was unloading telegraph poles when the load released onto him and killed him. Simpson J found in favour of the deceased's wife on negligence and directed entry of judgment for $418,650.00. The employer has challenged both the finding of liability and the quantum of damages. Held (per Clarke JA, Meagher and Cole JJA agreed) The risk that a driver might walk round to the unsafe side to investigate why the load had not released is neither far fetched nor fanciful. It was also not unforeseeable. The system of work employed was an imperfect one and the releasing system malfunctioned in a high proportion of instances on which it was used. The employer failed to meet the standards of the reasonable employer in failing to use one or both of the means available to lessen that risk. Her Honour did not err in not making some discount for the respondent's chances of remarriage which was so highly speculative that it was inappropriate to make any further deduction. ORDERS Appeal dismissed with costs. Clarke JA Graeme Aubrey Lloyd (the deceased) was employed by Wilson BrosTimber Cartage Pty Ltd (the appellant) as a truck driver in 1986. His duties required him to load timber onto the tray of his vehicle, to cart it to its destination and there to unload it. From time to time he was also required to move used, sometimes partially rotten, telegraph poles from various Sydney County Council depots to regular customers. On those occasions he was required to load the telegraph poles into a cradle secured to the tray of his vehicle, carry the poles to the customer's address and there unload them. On 24 July 1986 he was unloading poles at the property of Michael Reddish of 21 Junna Road, Dural, when the load released onto him and killed him. His widow, Shirley Joyce Lloyd, who is the respondent, brought proceedings on behalf of herself and her daughter, Kim, against the appellant claiming that the deceased died as a result of his employer's negligence. The proceedings were heard by Simpson J who on, 1 May 1995, found in favour of the respondent and directed the entry of judgment for $418,650.00. The appellant has challenged both the finding of liability and the award of damages. On the first issue Mr King SC, counsel for the appellant, contended, first, that her Honour erred in finding that the risk of injury to which the deceased was exposed when he died was foreseeable and, secondly, that the available means of avoiding or lessening those risks were unreal or fanciful in the circumstances. He also raised an ancillary point that her Honour was wrong to describe the deceased's actions immediately 2 UNREPORTED JUDGMENTS before his death as 'inadvertent'. The point raised on the issue of damages was a narrow one - her Honour wrongly failed to make allowance for the respondent's chances of remarriage. The facts of the case are in narrow compass although it is not easy clearly to describe the apparatus, or cradle, used in the operation. The poles were carried in batches of approximately 50, each weighing between one quarter and three quarters of a ton. When the deceased was required to carry the poles he secured two steel cradles to the tray of his vehicle, one towards the front and one towards the rear. Each cradle consisted of a horizontal member of four inch by four inch tubular steel and two vertical arms of the same material, forming a "U" shape. Once a load had been placed into the cradles the tops of the vertical members were secured together by a chain which was tightened so that the vertical members were angled inwards at the top. Each horizontal member was bedded on a piece of six inch by three inch timber with the consequence that the clearance between the deck of the vehicle and the lowest poles was about seven inches. One of the two steel uprights was welded to the horizontal member. The other was not welded at its base but was designed in such a way that it fitted over the horizontal member and once in position was secured by a pin or similar securing mechanism. Attached to the securing device was a length of chain which was used by the driver to release the securing mechanism so that the upright was freed at its base. Both 'U' shaped cradles were secured to the tray of the vehicle with the fixed vertical on the same side, whether it was the driver's or passenger's side. Once the vehicle reached its destination and the driver was required to unload he would stand on the same side of the vehicle as the fixed uprights - described in evidence as "the safe side" - reach under the load and pull the chain in order to release the mechanism which secured the base of the opposite vertical to the horizontal. The theory was that once both the verticals on the unsafe side had been released the forces of the contained load would push the bottom ends of the uprights away from the horizontal member allowing the uprights to swing freely secured only by the chain at the top. Once the upright members were detached from the horizontals the load was free to fall out onto the ground on the unsafe side of the vehicle. In practice the system did not work perfectly. On occasions - one witness said as much as fifty per cent of the time - the bases of the vertical members did not release upon the chain being pulled but held firm and the load was not freed. In order to meet this regular occurrence a lug had been welded to the base of the moveable uprights or verticals so that a length of steel could be placed under the load against the lug and then hammered in order to free the bottom of each upright. This method of effecting the release of otherwise jammed uprights was, according to the evidence, invariably successful. On the rare occasions on which the uprights held firm at their bases a front end loader was brought onto the safe side of the vehicle and its bucket used to push against the loaded poles. The additional force thus created worked to free the bases of the moveable uprights. On the day of his death the deceased arrived at Reddish's premises with his truckload of telegraph poles. According to Reddish, who assisted the deceased in the unloading operation, the releasing chains were pulled but they failed to release the uprights. Thereupon both Reddish and the deceased started hitting the lug on the moveable upright of the rear cradle without immediate success. URJ WILSON BROS TIMBER CARTAGE PTY LTD v LLOYD (Clarke JA) 3 At that point another driver, James Heggie, turned up with a delivery and Reddish left the deceased to go and speak with him. According to Reddish, after about one minute he heard the poles release. He then went down onto his haunches to look underneath the truck and he saw the deceased on the unsafe side being struck by the poles. The deceased was, at that time, in front of, or in the vicinity of, the front cradle. There was no evidence, however, whether the deceased had hammered against the lug attached to the moveable upright of the forward cradle, nor was there any evidence as to why it was that he went to the unsafe side of the vehicle. It was said in argument that it was pure speculation why he did that. For my part, having regard to his position near the forward cradle, it is possible to draw the inference that he went to that side of the vehicle in order to see why it was that the upright had not released. However, the resolution of this appeal does not depend upon a determination of the question whether that inference was open and I say no more about it. Mr King submitted that her Honour characterised the conduct of the deceased in proceeding to the unsafe side of the vehicle as inadvertent and that that was plainly wrong. According to Mr King the dangers of proceeding to that side were so obvious, and the consequences if the load released so devastating, that the deceased's conduct could only be characterised as bizarre or grossly negligent. It was not a case of mere inadvertence but of an employee acting in a totally unexpected and dangerous manner. No employee, according to Mr King, could have been expected to proceed onto the wrong side of the vehicle in any circumstances and the risk that the deceased might be killed because he breached the basic rule of staying on the 'safe' side and failed to pay sensible regard to his own self preservation was completely unforeseeable. The argument presented in support of this submission focused essentially upon the quality of the deceased's actions. It could be accepted, so the argument ran, that an employer was bound to pay regard to inadvertence, and even carelessness, of employees in devising and maintaining a reasonably safe system of work. However, an employer was not bound to take into account bizarre and grossly negligent conduct in devising his system. In support of this submission Mr King relied upon a number of authorities, the most helpful from his point of view being Smith v The Broken Hill Proprietary Co Ltd (1957) 97 CLR 337. The particular passage to which the court's attention was drawn appears from the judgment of Taylor J (at 342) where his Honour said: "This does not mean, of course, that where an injury has been caused to an employee by his own negligence he may seek to hold his employer liable but, rather, that the duty of the latter is not fully discharged unless, in the provision of safeguards, he has taken into account, not only that particular tasks necessarily involve particular risks, but also that inadvertence and inattention, short of positive negligence, are common concomitants of everyday work." Even if that statement once supported the proposition that an employer was not bound to have regard to the negligent conduct of an employee in devising a reasonably safe system of work it certainly cannot support that proposition now. There are two reasons why I say that. First, Smith was decided before the re-examination of the principles of negligence in the Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 and, secondly, there are abundant High Court authorities since that time which expressly recognise the need for an employer to have regard to the possibility that its employees might be negligent. Indeed Mr King referred the Court to two of those cases (McLean v Tedman (1984) 155 CLR 306 at 312, 313; Bankstown Foundry Pty Ltd v Braistina 1986 160 CLR 4 UNREPORTED JUDGMENTS 301 at 309-110). Mr King recognised that these authorities no longer support the proposition that negligent conduct by an employee was not foreseeable but submitted that they provided no support for the proposition that conduct of the nature described in this case could be properly seen as foreseeable. Once it is recognised that an employer is bound to have regard to careless or negligent conduct on the part of the employees in devising its system it is, in my opinion, not helpful to consider the degree of the employee's departure from the standard of care which could be expected of him in taking care for his own safety. An enquiry of that nature tends to divert attention from the simple and undemanding test by which foreseeability is judged. As expressed in Shirt at 47 and 48: "A risk which is quite unlikely to occur may nevertheless be plainly foreseeable." and "A risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk." The only risks which are not, according to this test, foreseeable, are those which are far fetched or fanciful. Was the risk in this case far fetched or fanciful? Mr King submits that the same system had been employed for many years, that each witness who gave evidence concerning the method of unloading thought it was a safe system, that the deceased was a sensible and conscientious worker who did not go about his work like at a 'bull at a gate', that the dangers of being on the unsafe side when the load released were so obvious and the consequences if a load released onto a person so devastating that no employer acting reasonably could possibly have foreseen that the deceased would have broken every rule and exposed himself to the risks involved in being on the unsafe side when the securing devices had been released. It was, according to Mr King, a far fetched risk and was not foreseeable. The flaw in the argument lies in the difference between the theory and practice of the unloading system employed by the employer. In theory, upon the release of the securing devices the load should have flowed freely off the vehicle and onto the ground. In saying that I do not mean that every log should have flowed freely but the theory was that the load would be released and escape onto the ground. In operation the system failed to work in that way on a great many occasions. It is true that in most instances in which the moveable uprights were not pushed free by activating the releasing device the employee could release them by hammering with the steel pole against the lug on the upright. Even that did not always work and on occasions it was necessary to use a front end loader. The two fallback systems of unloading the vehicle no doubt would work on every occasion when the driver had managed to release the securing pin. If, however, the chain used for releasing the pin became somehow caught up, or entangled, with a section of a pole - and it must be recognised that portions of these old poles were rotten and sections of chain did regularly catch upon parts of them - then neither of the alterative systems would have freed the load for it was retained by the still secured upright. In such an even it would have been necessary to devise a means for releasing the securing pin. There was no evidence that this had been a problem in the past but I find it difficult to understand how it could be said that where an employee had failed to release the upright by hammering against the lug there was not some possibility that the employee might fear that the securing pin itself had not been released. Bearing in mind the fact that while the employee remained on the safe side of the URJ WILSON BROS TIMBER CARTAGE PTY LTD v LLOYD (Clarke JA) 5 vehicle his vision would be largely impaired by the load on the tray an employee who held this belief would be placed in a dilemma. In my opinion the possibility that he might believe that, because he had been unable to release the upright after trying for some time, it was highly unlikely that the load would instantly release and might then proceed to the unsafe side to see whether the pin had been released and, if not, why not could not be completely dismissed. Whether this is what occurred on the day does not mater. In my opinion the risk that a driver might do this, while remote, could not be described as far fetched or fanciful. Nor was it unforeseeable. The system employed was, at best, an imperfect one and required the use of a releasing system which did not work according to its theory on a high percentage of the occasions on which it was used. Alternative steps were therefore necessary to bring about a release of the load and the fact that those steps had worked successfully, so far as the evidence goes, did not mean that it was far fetched or fanciful that, on an occasion when the system did not work as it was meant to, the driver might eventually proceed to the unsafe side believing it was safe to do so. I agree with her Honour that the risk was foreseeable and I reject this ground of appeal. That conclusion does not mean that the appellant was negligent. As Mason J said in Shirt (at 47): "Tt is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence along with the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." The respondent led evidence to support the existence of a number of practicable alternatives which would have avoided or minimised the risk of injury. Her Honour, in her carefully considered and comprehensive judgment, considered and rejected all but two of those alternatives. She held, however, that a lengthening of the wedge section of that part of the moveable upright which locked in with the horizontal member would not have been expensive and would have lessened the risk of injury. She also held that lubrication, which was never used, would have facilitated the more efficient operation of the system. There were a number of criticisms of her Honour's acceptance of the expert evidence which supported the first proposition. It was said, quite correctly that her Honour did not base her conclusion on demeanour and it followed, according to the argument, that this court was in as good a position as her Honour to determine the effect of the lengthening suggested. Upon this basis Mr King took the court to the evidence of the two experts called by the respondent and the expert called by the appellant and argued that her Honour's acceptance of the expert evidence called by the respondent was based primarily upon a mistaken belief that the specific area of expertise of the appellant's expert, Dr Adams, did not include the matters ventilated at the trial. He pointed out that her Honour had, in rejecting the contrary evidence of Dr Adams, wrongly believed that Dr Adams had injected a false assumption into his explanation for rejecting the Simpson theory. (Mr Simpson was one of the respondent's experts.) I have had regard to these arguments but I am not 6 UNREPORTED JUDGMENTS persuaded that Mr King has demonstrated any error in her Honour's approach. Insofar as he suggested that Dr Adams did not operate on a false assumption I think he is wrong. The context in which the statement by Dr Adams was made supports, in my view, her Honour's conclusion. I do not propose, however, to elaborate upon my reasons for rejecting this argument because, in my opinion, there is simply no answer to the proposition that lubrication would have greatly facilitated the unloading operation and would have been likely significantly to have lessened the incidence of jamming and the consequent risks. Nothing that was put in the appeal answered that simple proposition. Indeed it is instructive to refer to her Honour's observations on the way this issue was dealt with at the trial: "The simple proposition that lubrication would have been likely to facilitate the more efficient operation of the system, and the consequence that there would then be no need for the operator to ram the wedge using the waterpipes, or to investigate the reasons for its failure to disconnect was somewhat delicately skirted around by counsel for the defendant. Nothing was put to Dr Olsen on the subject, and Mr Simpson was cross-examined only to the effect that the failure of the system to disconnect was not the only reason for the load failing to disgorge." The evidence was that the failure of the system to disconnect was the only reason on this occasion for the load failing to disgorge and in those circumstances it could not be disputed that lubrication had a useful role to play. Apart from the fact that this is obvious, that it was supported by Dr Olsen (the respondent's second expert) and Mr Simpson and was not really contested by Dr Adams, except on the basis that in view of the history of the operation without the use of the lubrication it was an unnecessary addition, there was the evidence of Reddish who was himself a civil engineer. He said this: "Q. What about having some grease on the mating components of the legs? Would that have reduced the problem of their jamming and not releasing, in your opinion? A. It would have reduced the jamming. Q. Lengthening a lug of the wedge at the point where the horizontal and vertical parts meet, would that also have reduced the risk that they would malfunction? A It would have reduced them jamming. Q. It would have reduced them jamming? A. Yes." Each of lubrication and the lengthening of what was described as 'the wedge' was inexpensive and having regard to the magnitude of the risk, and notwithstanding the unlikelihood of the occurrence of a serious accident, it is my opinion that her Honour was correct to conclude that the appellant failed to meet the standards of the reasonable employer in failing to use one or both of the means available to lessen that risk. To those who say that this conclusion places an impossibly high burden upon an employer I would answer that it follows from the application of the tests by which negligence is judged to the facts of this case. (See Braistina at 308-9; Bus v Sydney County Council (1989) 167 CLR 78 at 90. March v Stramare (EM and MH) Pty Ltd (1991) 171 CLR 506, at 520 and Bumie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 554; Rita Militic v Capital Territory Health Commission, High Court of Australia, 16 August 1995, unreported, at 4). In Braistina the majority of the High Court criticised McHugh JA (in his former role) for saying that "Throughout the common law of negligence, but particularly in the employer/employee field, the standard of care required of a defendant has moved closer to the border of strict liability". I confess that at the URJ WILSON BROS TIMBER CARTAGE PTY LTD v LLOYD (Cole JA) 7 time I had difficulty understanding the criticism and having regard to the discussion on the degree of care in Bumie, albeit in a slightly different context, 1 still suffer from the same difficulty. In my opinion the appeal against liability should be rejected. Mr King submitted that her Honour erred in not making some discount for the respondent's chances of remarriage. The respondent married the deceased in February 1973, their daughter was born on 12 January 1975, and the respondent was aged nearly 39 when the deceased was killed. Over eight years had passed between the death of the deceased and the trial during which the respondent remained unmarried. There was evidence to suggest that she had no intention of remarrying. Her Honour discounted the award by 15 per cent for the ordinary vicissitudes of life but thought that the possibility that there may in the future be a financial benefit to the respondent from remarriage was so highly speculative that it was inappropriate to make any further deduction. I see no reason to disturb her Honour's finding. In my opinion the appeal should be dismissed with costs. Meagher JA I agree with Clarke JA. Cole JA I agree with Clarke JA. Appeal dismissed with costs. COUNSEL: Appellant: L KING SC Respondent: P SEMMLER QC AND D CONTI SOLICITORS: Appellant: PW TURK AND ASSOCIATES Respondent: McCLELLANDS