COLES MYER LTD v TAYLOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY JJA and COLE JA 25 September 1996, 3 October 1996 [1996] NSWCA 111 NEGLIGENCE — INJURY SUFFERED DURING COURSE OF EMPLOYMENT- EVIDENCE OF SAFE OR GOOD PRACTICE WITH RESPECT TO WOODEN PALLETS Michael John Taylor (the respondent) claimed damages for injuries suffered in the course of his employment as a consequence of the negligence of his employer, Coles Myer Ltd (the appellant). At the time of his injury the respondent was stooping to lift a bag of salt from the rear of a wooden pallet. His foot became caught in a gap between the slats, he lost his balance and suffered a twisting injury to his back. The trial judge accepted the respondent's contention that the gaps between the slats on this pallet (three inches) were wider than the distance required by good practice. As the case was conducted on the basis that the sole issue to be litigated in respect of liability was whether the gaps were three inches wide, in which case it was accepted the employer was liable, a verdict was therefore entered for the respondent. The employer appealed from both the finding of liability and the award of damages. The grounds of appeal relating to liability were that his Honour erred in finding negligence on the part of the appellant, and erred in accepting the evidence of an expert engineer in circumstances where the factual basis for the engineer's opinion was not made out by the evidence. The award of damages was challenged on the basis that his Honour failed to give any or sufficient reasons for his preference for the views of the respondent's medical witness. Held: (1) While the trial judge could have rejected the respondent's case upon the basis urged upon him by the appellant, the actual analysis carried out was an appropriate means of resolving the apparent conflict in the respondent's evidence. It was open to his Honour to find on the evidence that the gap was three inches. (2) In the circumstances where the case was determined on an analysis of the oral evidence of the respondent, supplemented solely by the written evidence of an expert engineer and a number of doctors, the respondent being the only witness cross-examined, it is not possible to say whether the omission from Dr Searle's report of the matters relied on by the appellant was of any significance. It was open to his Honour to accept Dr Searle's opinion and he was not in error in doing so. Orders Appeal dismissed with costs. Clarke JA This is an appeal from a judgment of Sharpe J awarding Michael John Taylor (the respondent) damages in the sum of $167,015.00. The claim made by the respondent was that he had suffered injuries during the course of his employment as a consequence of the negligence of his employer, Coles Myer Ltd (the appellant). The incident out of which his claim arose occurred on 25 October 1985 at which time the respondent was employed by the appellant as a storeman at its warehouse premises at Smithfield. In the normal course of his employment the respondent was required to make up individual outgoing orders of goods which involved him wheeling a pallet jack trolley through the warehouse and picking up goods from storage pallets. At 2 UNREPORTED JUDGMENTS the time he sustained his injury he was picking up a bag of salt weighing between 4 and 10 kilograms from a storage pallet. The pallets were stored on racks in the warehouse and the bag of salt which the respondent lifted was situated on the lowest pallet, at ground level. That pallet was approximately 4 feet square and was made up of slats of timber with a reasonably sizeable gap between the slats. The gaps on the particular pallet from which the respondent was lifting the salt were parallel to the passageway. The distance between the lowest pallet and the one above it was approximately 4 feet so that if the respondent stepped onto the pallet he was required to stoop. At the time the respondent was required to gather the bag of salt the lowest pallet was almost empty and the bags of salt were all at the rear of the pallet. As a consequence the respondent was required to stoop beneath the rack above and place his foot on the empty part of the pallet for support. When the respondent stepped onto the pallet the front of his foot became caught in a gap between the slats, he lost his balance and suffered a twisting injury to his back. I have recounted the respondent's description of the accident which was accepted by his Honour as a truthful account of what happened. The respondent's case was that good practice required that the gaps between the slats on a pallet upon which a workman was required to walk should not be any wider than one and a half inches and that his injury was occasioned because the gaps on this pallet were in excess of three inches. His Honour accepted the respondent's case and found a verdict in his favour. Three grounds of appeal have been pressed. The first two relate to the finding on liability and were as follows: (1) The court erred in finding negligence on the part of the defendant; (2) His Honour erred in accepting the evidence of Mr Buckland (expert engineer) that the defendant had failed to take reasonable care for the plaintiff's safety in the circumstances where the factual basis for Mr Buckland's opinion was (not) made out by the plaintiff's evidence. At the trial it may have been arguable that even if the respondent made out his factual allegations there was insufficient basis for a finding of negligence. That is because the pallets were, according to the evidence, normal pallets which were brought into the store and moved about the store in a perfectly normal manner. However, that case was not raised at the trial. It would seem clear from his Honour's judgment, and this was confirmed by counsel during the appeal, that the sole issue litigated was whether the gaps were as wide as the respondent claimed. It was accepted that if the respondent failed to establish that the gap was in excess of 3 inches then his claim should fail. The generality of the grounds of appeal were refined in the written and oral submissions of the appellant. In its submission the respondent failed to establish that the gaps between the slats was any wider than one and a half inches and, as that gap was accepted by Mr Buckland to be in accordance with safe practice, the respondent's case ought to have failed. Counsel pointed out that during cross-examination the respondent conceded that the gap may not have been wider than one and a half inches. In these circumstances the fact that he had earlier said the gap was in excess of three inches could not support a verdict in his favour. Further, the appellant's counsel argued, his Honour's reasoning to a conclusion that the gap must have exceeded one and a half inches was flawed. What his Honour said was that his acceptance of the respondent's version of the accident meant that the gap must have exceeded one and a half inches. Unfortunately, when his Honour referred to the respondent's account he said that the respondent's foot had slipped into the gap whereas what in fact the respondent URJ COLES MYER LTD v TAYLOR (Clarke JA) 3 had said was that the front of his foot became caught in the gap. This mistake vitiated the trial judge's reasoning and as the respondent was unable to say whether the gap was larger than one and a half inches his case must fail. The short answer to this submission is that, while the trial judge could have rejected the respondent's case upon the basis urged upon him by the appellant, the actual analysis carried out by his Honour was an appropriate means of resolving the apparent conflict in the respondent's evidence. In chief the respondent said that there was a three inch gap between each board and, in a later question, he said that he put his foot between the joints. In cross- examination he said that the front of his foot went between the slats and later responded to a suggestion that the gap could have been about one and a half inches with the answer "I guess so". The cross-examiner, however, was not content with that answer and went on: "Q. But it might have been about a one and a half inch gap? A. It's enough to put your toe down in." The significant fact was that the respondent did put the front of his foot into the gap and it was that action which caused the twisting which led to his injury. There is no suggestion that the respondent was, at that time, in bare feet and it seems to me that the fact that the front of the respondent's foot went between the slats pointed strongly in favour of the view that the gap was wider than one and a half inches. In these circumstances, and as the uncontradicted evidence of the expert was that safe practice demanded that the gap be no wider than that distance it seems to me that his Honour did not err in reaching his conclusion. The appellant also challenged the award of damages. The relevant ground of appeal read: "His Honour erred in failing to give any or sufficient reasons for his preference for the view/conclusions from the plaintiff's medical witnesses over those of the defendant." No argument was advanced in support of that ground but the appellant did submit, without objection from the respondent, that his Honour ought not to have accepted the evidence of Dr Searle that the respondent's back disability was persisting and permanent because the history given to the doctor was incomplete, if not wrong. In his written submissions counsel for the appellant submitted that the hypotheses upon which Dr Searle based his opinion were not sufficiently like the case proved by the respondent; important data, which were not trifling, were not taken into consideration by Dr Searle. The dispute between the doctors was whether the back injury suffered by the respondent on 25 October 1985 led to permanent disability as suggested by Dr Searle and Dr Lawson or whether he had suffered no more than a temporary strain injury. Dr Searle's ultimate opinion which was accepted by his Honour was as follows: "In the work injury on 25/10/85 this man suffered a lumbar ligament strain, probably of one of his right facet joints, most likely at the L5-S1 level. The symptoms and disability from this are persisting and are permanent. It causes him to be permanently fit for only light work which does not include lifting or repeated bending, prolonged standing or prolonged sitting. With regard to prognosis I would not anticipate any significant change in this condition with the passage of time." In a later report the doctor said: 4 UNREPORTED JUDGMENTS "He is probably suffering from the facet syndrome, ie, the ligament strains have occurred at the small joints behind the main spinal column with possible injury to the articular surface of these joints, and this type of problem tends to cause sudden onset of severe disabling pain but between the attacks the patient appears to be almost normal." The facts which were not adverted to by Dr Searle and which the appellant claims were important were as follows: A. The respondent had suffered a disabling back injury involving 5 days off work prior to joining Coles. There is no doubt that at some time prior to joining Coles the respondent had lost five days from work with a pinched nerve in his back. It does not emerge from the evidence when this occurred but it is clear that the respondent regarded the incident as relatively trivial and that once he had returned to work he had no further trouble with his back B. On 16 January 1986 (ie, three months after the accident) Dr Irani had certified that the respondent was completely symptom free. This is as may be but it is not inconsistent with Doctor Searle's conclusion that there would be periods when the respondent would be virtually symptom free. C. On 24 December 1991 the respondent hurt his back while putting a lawn mower into a box trailer and again went to see Dr Irani. It is true that this occurred and that Dr Searle did not refer to it but according to Dr Irani, who saw him a month later, the respondent suffered intense pain in his lowerback which radiated into his right leg but had gradually settled before the doctor saw him on 31 January 1992. At that time the respondent had no back pain and did not have any radiating symptoms into his lower limbs. It must be accepted that Dr Searle did not refer to these matters in his reports but in the circumstances and in the way the case was conducted it does not seem to me that this was a matter of significance. The parties elected to have the issues in the case determined upon an analysis of the oral evidence of the respondent supplemented solely by the written evidence of Mr Buckland, the expert engineer, and a number of doctors. The only witness cross-examined was the respondent. In the circumstances I am unable to say whether the omission from Dr Searle's consideration of the matters I have itemised was of any significance. It may well be that if Dr Searle had been confronted with these matters he may have said that they supported his conclusion or that the history remained quite consistent with his conclusion. Furthermore, there is nothing in the evidence which suggests that any particular significance should be attributed to the pre-injury back complaint. Nor could it be said that the report that the respondent was symptom free on 16 January 1986 was inconsistent with Dr Searie's opinion who recognised that between attacks the respondent would appear to be almost normal. Finally, there is no reason to think that the incident in 1991, which apparently led to a temporary aggravation of back symptoms, would in any way have changed Dr Searle's opinion first given in 1988 and confirmed in 1993 that the respondent suffered injury to his facet joints in 1985 and that it was that injury which caused permanent but not continuous pain and disability. In these circumstances it was open to his Honour, in my opinion, to accept Dr Searle's opinion and it cannot be said that his Honour was in error in so doing. In my opinion the appeal should be dismissed with costs. Handley JA URJ COLES MYER LTD v TAYLOR (Cole JA) 5 I agree with Clarke JA. Cole JA I have read in draft the judgment of Clarke JA. Had the trial been conducted by the appellant upon the basis that it was not negligent of an employer to ask a worker to place his foot onto a standard pallet with standard slats where the pallet was placed on the floor for the purpose of picking up a comparatively small bag of salt whilst stooping into a racking system in a warehouse where pallets were stacked, it seems likely to me there would have been a verdict in favour of the appellant employer. That is because the operation is such a usual one without apparent risk, and the response of the employer to such minimal risk as there might have been was reasonable. The suggested responses by the employee that the pallet should not have had slats, or should have been placed in the aisle, seem to me to be quite unrealistic and impractical. However as Clarke JA has made clear, the employer chose to fight the worker's action upon the basis that the sole issue to be litigated at trial was whether the gap between the slats in the pallet upon which the worker placed his foot were three inches wide, in which case it was accepted that the employer was liable, or one and a half inches, in which case it was accepted that it was not. As Clarke JA has demonstrated, it was open to the trial judge to find on the evidence that the gap was three inches. It follows that the appeal against liability must fail. I agree with the reasons of Clarke JA and with the orders which he proposes. Appeal dismissed with costs. Representation: Counsel for the appellant: J Machonachie Solicitors for the appellant: Moray and Agnew Counsel for the respondent: D Andrews Solicitors for the respondent: Baker Ryrie Rickards Titmarsh