STRIZU v UNITED RUBBER (AUST) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY JA and ROLFE AJA 7 April 1998, 7 April 1998 [1998] NSWCA 221 NEGLIGENCE — SYSTEM OF WORK — EVIDENCE — Employee suffers back injury — sues employer — alleged misdirection as to duty of care — alleged wrongful rejection of evidence — HELD — no material misdirection — evidence properly rejected. Gleeson CJ The appellant brought an action in the District Court against the respondent for damages for personal injury arising out of alleged negligence on the part of the respondent in its capacity as the appellant's employer. The action came for trial before his Honour Judge Mahoney and a jury. The jury returned a verdict for the defendant. The appellant appeals on two grounds, the first complaining of alleged misdirections by the trial judge to the jury, and the second complaining of alleged wrongful rejection of evidence. The facts of the case can be stated sufficiently for the purposes of considering those two grounds of appeal in the following manner, which is taken substantially from the written submissions filed on behalf of the appellant. The appellant was engaged to work for the respondent which manufactured rubber mouldings. The appellant operated two rubber moulding presses. He made rubber rings. There were two mould sets in each press, giving a total of four. Each mould set contained two layers comprising three mould dies, one at the top, one in the middle and one at the bottom. Each set produced ten rings at a time. Forty rings were produced for each completed cycle of both machines. The two top dies in each mould set were hinged at the rear and had handles at the front. The method of work which the appellant was required to undertake involved raising the top die, removing the completed rubber rings from the top of the middle die; raising the middle die; removing rubber from the bottom die; placing new rubber in the bottom die; closing the middle die; placing rubber in the top of the middle die and lowering the top die. Thus the appellant had to lift or lower the hinged dies four times in each operation of raising and lowering. This method of work was repeated for each die set. The press cycle was eight minutes, thus the method of work required the appellant to go through the sequence of tasks described above four times in every eight minutes. The appellant operated the presses from 7.00am to 5.00pm. He had a morning break and a lunch break. In June 1985 the appellant suffered back injury as he was raising the middle die in one of the mould sets. There was a conflict of expert evidence at the trial about the adequacy of the system of work and about the weight of the dies, the force required to lift the dies, the applicable guidelines to assess the system of work and the number of lifting and lowering operations that should be taken into account in applying the guidelines. 2 UNREPORTED JUDGMENTS The appellant relied upon the evidence of an expert, Mr Buckland, and the respondent relied upon the evidence of an expert, Dr Olsen. Mr Buckland, in forming his opinion favourable to the appellant, called in aid a set of safety standards which I will describe as the Sydney standards. Dr Olsen, in forming an opinion favourable to the respondent, called in aid a set of standards which I will describe as the Surrey standards or Surrey guidelines. The first ground of appeal is that the learned judge misdirected the jury in relation to the questions of duty of care, standard of care and breach. In considering this ground of appeal it is important to note one aspect of the way in which the trial was conducted which had a significant bearing on what the judge told the jury in relation to these issues. It is recorded in the transcript and in the summing-up of the trial judge that in the course of his opening address to the jury counsel for the appellant put to the jury a proposition to the effect that if a worker is engaged to perform work which carries the risk of injury then the worker's employer has a duty to prevent injury. That obviously constitutes a serious misstatement of the law and it was one which the trial judge found it necessary to correct. It also appears that in the course of his closing address to the jury counsel for the appellate read to the jury from a law report. This practice is to be deprecated. It involves reading to the jury an exposition of law by some appellant or superior court in circumstances calculated to undermine the authority of the trial judge, whose task it is to instruct the jury on the relevant principles of law. When Mahoney DCJ came to instruct the jury on the principles of law which they were to apply, in the course of his summing up, he said this: "Now, members of the jury, this concept of negligence is something that you need to know specifically about. Broadly speaking as matter of law, negligence is causing injury by doing something that a reasonable person would not do, or failing to do something that a reasonable person would do. It is not necessary for success in a claim based on negligence, to prove that the defendant intended to cause harm to the plaintiff. It is no defence to a claim in negligence for a defendant to claim that he did not wish to injure the plaintiff or that he did not intend to injure the plaintiff or that he did not realise the plaintiff might be injured by the way in which the system of work and the machines were set up. The law imposes on all employers a duty of care to all those whom they employ and it requires those employers to comply with that duty. Broadly stated, it is a duty to take reasonable care for the safety of the employee in the light of the particular circumstances of the work place. I do not want you to think that I am specifically singling Mr McSpedden out for critical attention when I direct you to disregard something that he said to you in his opening address last Wednesday week when he first in the other court said this is what the case is all about. There is always the difficulty when lawyers start anticipating the directions of the judge and start talking about the law, there is always the likelihood that the judge might take a slightly different view of what the law is from what the barrister says. But Mr McSpedden said this to you that the law provides a duty on the defendant as an employer of the plaintiff and I am here summarising the notes I was making at the time, it is not transcribed into typescript, the law provides a duty on the defendant as an employer of the plaintiff, that is that if there was a risk of injury occurring to the plaintiff then the defendant was under a duty to prevent that from occurring. Members of the jury that states the duty of care too highly. It is not correct, please put it out of your mind, it is not the law. The duty that the law imposes applies to all employers and URJ STRIZU v UNITED RUBBER (AUST) PTY LTD (Gleeson Cu) 3 it is a duty to take care as I have been describing to you. They do not have to guarantee that the worker will never get injured when he goes to work or when she goes to work. The duty that the law imposes applies to all employers whether in, the private sector or in the public sector. Now this case involves an employer in the private sector and the only relevance of that is that it enables me to take into account profit and loss matters in order to describe how this duty of care arises and what the employer has to do to comply with it. Any employer in the private sector sets out to make a profit and you are all familiar with balance sheets and the system of debits and credits. Now basic accounting principles show that profit is what is left after you subtract the cost of production and sales from the proceeds made on sales. What is left is profit and it goes into the employer's pocket. Now the law does not control what profit an employer wants to make but it does require him to comply with his duty to employees when planning the production and calculating how much the production is going to cost him. It requires an employer to devise, institute and maintain a reasonably safe system of work for all employees it intends to engage in the process. It requires the employer to consider the magnitude of any risks to which the workers can reasonably be anticipated to be exposed and to take reasonably commensurate steps to protect the workers from being injured in the course of their work. As I said to you, the law does not require an employer to ensure or to guarantee that no worker ever employed by it is ever going to be injured. That is not the law. It would be plainly unworkable if it were because if it were the law, then we would never be able to employ a police force, a fire brigade or anyone to go out and catch fish in the ocean or even to work as a chef in a kitchen and prepare the fish when they come back or even to cut sandwiches in the coffee shop in the foyer of the court house here because there is always some measure of risk involved in doing anything, cutting sandwiches, switching on electric toasters or doing anything of that nature. What you have to concern yourself about is the key to this whole equation being the exercise and the application of common sense and reasonableness. The broad statement of the duty of care I gave to you a few moments ago has been stated from time to time in more detail in these ways. It is a duty to provide competent staff of workers, adequate material, a proper system of work and effective supervision. It has also been stated to be a duty to include requirements such as the provision of a safe place at which to work and a safe system of work and safe plant, gear and equipment with which to carry out the work. Now the way the case has been conducted before you, the plaintiff is alleging one broad aspect of breach, namely that the lids were too heavy to expect the plaintiff to raise and lower them on a repetitive basis over an eight-hour shift, bearing in mind that the cycle of work required him to raise and lower four lids every eight minutes and to intersperse that lifting with the need to turn around and throw or toss the cured rubber rings on to the bench behind him and then point them and tie them up and put them into plastic bags. Now Mr McSpedden multiplied the net result of that task out for you in his final address, basing the submission on Mr Buckland's evidence in saying what the defendant required the plaintiff to do was to lift the weight of these lids which amounted to one and a half tons every hour. If you multiply the weight of the lids by the eight-minute cycle and take that out to an hourly basis it's one and a half ton lifting that has got to be carried out or over an eight hour shift a 12-ton lifting job." 4 UNREPORTED JUDGMENTS As appears from the record of the proceedings, counsel for the appellant tool; no objection to the directions set out above, nor, it might be added, did counsel seek to contradict the statement of fact made by the trial judge as to what counsel had put to the jury in the course of his opening address. In those circumstances it can safely be inferred that the trial judge accurately recounted what counsel for the appellant had opened to the jury. It is understandable that the trial judge was at pains to correct the misapprehension which might have resulted from what counsel said. After the jury retired they sent a note to the trial judge containing the following somewhat cryptic comment and requesting clarification. The comment was: "Mr McSpedden summing-up re duty of care quotation from law report." The context in which that note came to the trial judge and the judge's response to it appears in the following extract from the transcript of the proceedings: "HIS HONOUR: Well I've corrected that thank you. Any further applications? AUSTRON: Your Honour mentioned that the plaintiff's claim in the Workers Compensation was for claiming that he was disabled and claim for compensation on a continuing basis, I'm not sure whether your Honour said that it stopped - his claim for a continuing basis stopped on the hearing. It's my understanding that he was claiming an award of payments continuing -- HIS HONOUR: It was a claim lodged on | March 1989 at which stage he was alleging that his total incapacity was continuing. Any further applications? McSPEDDEN: No application your Honour. IN THE ABSENCE OF THE JURY LUNCHEON ADJOURNMENT RESUMPTION HIS HONOUR: The jury sent a message that they want some assistance about 10 minutes ago. I have come down to court, there was no monitor at the time. My associate went to warn counsel that they had to come back into court to find that counsel have gone back up town apparently. So could I have the appearances at the moment, who's appearing in the matter? MAYNARD: William Maynard, solicitor, your Honour. HIS HONOUR: Thank you, Mr Maynard, you're the solicitor for the plaintiff? MAYNARD: Yes. BURGESS: Kathryn Burgess, solicitor. HIS HONOUR: The jury has sent a note. Copy of transcript from Friday approximately 3.30 Mr McSpedden's summing up re duty of care quotation from law report. Do either of you want to say anything about what I say to the jury? Perhaps I should indicate what I propose to tell them is to ignore what Mr McSpedden said and to rely on what I told them and ask them if they want me to repeat it. Any objection to that? MAYNARD: No. BURGESS: No your Honour. IN THE PRESENCE OF THE JURY HIS HONOUR: Madam foreman I've been passed a note which I'm told comes from you and it reads as follows. 'Copy of transcript from Friday at approximately 3.30. Mr McSpedden summing up re duty of care quotation from law report.' That's a note from you people is it? SPEAKER: Yes. HIS HONOUR: All right well I'l initial that and date it today and place it with the papers. Now members of the jury the situation is that you take your directions in the law from me. We all know that Mr McSpedden was reading from the law URJ STRIZU v UNITED RUBBER (AUST) PTY LTD (Gleeson Cu) 5 report on Friday afternoon. Some of the things that Mr McSpedden said to you, as was the case with Mr Austron, I said ignore those, you take the law from me. 'You can work on the basis that what I have told you may not have been in quotations from the law report but is a synthesis of what is in the law reports. Is it your wish that I go over the matter of negligence again, duty of care? SPEAKER... (not transcribable).. HIS HONOUR: The broad statement of the duty of care has been stated from time to time in more detail these ways. It's a duty to provide a competent staff of workers, adequate material, a proper system of work and effective supervision. And another way of putting it is that it is a duty which includes requirements to provide a safe place at which to work, a safe system of work and safe plant, gear and equipment. And that was in the context of saying to you that negligence is doing something that a reasonable person would not do or it's failing to do something that a reasonable person would do. So that you take the reasonable person and say the employer must be reasonable. You're the judges of facts. You consider in the context of the nature of the duty I have outlined to you whether or not when it set up this system of operations, the employer ought to have foreseen that there was an appreciable and unnecessary risk of the worker being injured. You've heard the evidence of Mr Buckland contending for the proposition that something should have been done and you heard Dr Olson contending for the proposition that nothing needed to be done. You have to determine whether or not you accept either of those versions or those assessments. The onus of making out a case rests upon the plaintiff. Madam foreman is there anything further that you want me to put to you? At any stage please feel free to send a message back to me. If you do want any further clarification you can send me a note. I'm not in a position of getting Mr McSpedden's transcript read out to you because addresses of counsel are never transcribed. I mean the machines might have been on but they're never typed. Just before you do go, bear in mind that what I've just said to you goes hand in glove with what I'd said to you previously. You take it all into account. Thank you." As appears from the record, at this stage counsel for the appellant was absent but the solicitor for the appellant was present. The solicitor for the appellant took no objection to what the trial judge said to the jury, and made no application for any redirection or correction. The first ground of appeal is based upon what the trial judge said in response to the jury's note or question and in particular to the sentence which reads as follows: "You consider in the context of the nature of the duty I have outlined to you whether or not when it set up this system of operations, the employer ought to have foreseen that there was an appreciable and unnecessary risk of the worker being injured." Four criticisms are made of that proposition. First, it is said that the matter of foreseeability is related erroneously to a point of time. The relevant time, it is said, is not when the system was set up but when the worker suffered his injury. Second, it is said that the reference to "appreciable risk" should more correctly have been a reference to "real risk". Third, it is said that the reference to "appreciable and unnecessary risk" involved a cumulative criterion which was inappropriate and unfair to the appellant. 6 UNREPORTED JUDGMENTS Fourth, it is said that the trial judge left undefined and unrelated to the facts of the case the concept of necessity. This was an appellant who was claiming that he injured his back in the course of heavy work. Heavy work carries with it a risk of back injury. The issue that was fought at trial, and that to which the expert evidence of Mr Buckland on the one side and Dr Olsen on the other side was directed, concerned the question of the steps which, in the circumstances, it was reasonable to expect that an employer should have undertaken to meet the risk of injury and in particular the extent to which the system of work that had been established by the employer complied with the recognised standards or guidelines concerning safety. There was no issue at the trial as to any change in techniques or changing standards or guidelines which made important the difference between what the employer did or failed to do at the time the system of work was established and what the employer did or failed to do at the time the appellant suffered his injury. I am not persuaded that there was any material misdirection involved in what the trial judge said to the jury, bearing in mind the nature of the factual issues in the case and the context in which the criticised sentence appears, including the whole of what had earlier been said by the trial judge to the jury in relation to the issues of duty and standard of care and breach of duty of care. Iam reinforced in my view as to the lack of materiality in this respect by the failure of the legal representative of the appellant to make any form of complaint or criticism about any aspect of the directions given by the trial judge either before or after the jury sent in their note. In my view, considered in their entirety, the directions the trial judge gave to the jury about questions of duty and standard of care, and breach of duty of care, when considered in the light of the facts and circumstances of the case and the issues that were fought before the jury were adequate to give them proper instruction as to the task which they were to perform. The first ground of appeal should fail. As to the second ground of appeal, it is, once again, necessary to observe some aspects of the way in which the case was conducted by counsel for the appellant. It may be inferred that, in the usual way, written reports of expert witnesses were exchanged between the legal representatives of the parties before the trial. The appellant gave his evidence-in-chief, and then Mr Buckland was called as an expert witness. Although it is pointed out that on one particular subject matter Mr Buckland's expertise was not accepted, his general expertise as accepted and he gave extensive opinion evidence before the jury based on that expertise. A stage was reached in the evidence-in-chief of Mr Buckland where counsel for the appellant sought by some means to anticipate the evidence which he expected to be given in the course of the case for the respondent by Dr Olsen. It will be remembered that Mr Buckland placed reliance on what I called the Sydney standards and Dr Olsen was going to place reliance on the Surrey standards or guidelines. Counsel for the appellant began to ask Mr Buckland a series of questions about the Surrey guidelines in an apparent attempt to have Mr Buckland give the jury some opinion to the effect that either those guidelines supported the appellant's case or at least did not damage the case to the extent for which the respondent might seek to contend. Counsel, however, did not seek to tender the Surrey guidelines or, for that matter, the report of Dr Olsen; rather he embarked upon the course of inviting Mr Buckland to make certain comments. The trial judge took understandable URJ STRIZU v UNITED RUBBER (AUST) PTY LTD (Priestley JA) 7 exception to this. The Surrey guidelines were not in evidence and might never have come into evidence. Counsel for the appellant was apparently trying to have the jury made aware of at least some aspects of those guidelines and some parts of their content without the guidelines being tendered in evidence as part of the appellant's case. Counsel was also apparently attempting to have the jury made aware of some aspects of the opinion of Dr Olsen without Dr Olsen having been called as a witness at that stage and in circumstances where Dr Olsen might never be called as a witness. Ultimately, the jury might never have had before them the opinion of Dr Olsen or the Surrey guidelines. In those circumstances it was inappropriate that counsel should embark upon the course of asking questions of Mr Buckland in circumstances which would, amongst other things, get in secondary evidence of selected parts of the contents of the Surrey guidelines. The proper way for counsel to deal with this matter was to call Mr Buckland in reply to comment upon the opinion of Dr Olsen, if it were desired to do so. The argument that is put is that when counsel ask a question for the apparent purposes that I have mentioned and those questions were rejected: "The trial judge rejected every attempt to elicit from Mr Buckland any substantive evidence from Mr Buckland about either the content of the Surrey University guidelines or the extent to which they were applicable to the plaintiff's work." Iam quoting from the written submissions filed in advance of this appeal on the part of the appellant. In my view, it was entirely appropriate to reject the substantive evidence from Mr Buckland about the content of the Surrey University guidelines or the extent to which they were applicable to the plaintiffs work unless those guidelines were going to be tendered in evidence. As I said, the appropriate way to go about having Mr Buckland comment on or contradict the evidence of Dr Olsen would have been to deal with the matter in reply. I do not accept the submission made by senior counsel for the appellant that the basis upon whicll Mahoney DCJ rejected the questions to which I have referred was related to any lack of professional expertise on the part of Mr Buckland. On the contrary, it seems to me that Mahoney DCJ had a good and different reason for rejecting those questions, the reason being that which I have earlier endeavoured to explain. In my view, the second ground of appeal is not made out. I would propose that the appeal should be dismissed with costs. Priestley JA I agree. The plaintiff in these proceedings, or appellant in this Court, suffered a back injury while employed to do a job which required hard physical effort over lengthy periods. Injury can occur to anyone doing such a job even when the employer provides a reasonably safe system of work. For cases of that kind worker's compensation provides some remedy for the worker. A further remedy of damages for negligence was available to the worker in the present case if he could show his employer had failed to provide a reasonably safe system of work and he suffered his injury as a result. An expert witness called by the plaintiff gave evidence which, if accepted by the jury, would have justified them in finding in the plaintiff's favour. An expert called by the defendant gave evidence to the contrary effect. On any view it was a case for the jury to decide. The jury found for the defendant. 8 UNREPORTED JUDGMENTS In the circumstances, the plaintiff, in seeking to set aside the jury's verdict on appeal, had to concentrate on the way the Judge gave directions to the jury and to say he had misdirected the jury so significantly that there must be a new trial. Detailed criticisms of some portions of the summing-up were then made and of the form in which the Judge answered a particular question asked by the jury about the duty of care. Those criticisms have been individually dealt with by the Chief Justice in a way with which I respectfully agree. To what the Chief Justice said I would add for myself the more general observation that, on reading the summing-up as a whole, I formed the view that it fairly left to the jury the real issue between the parties which came down to whether the plaintiff's expert should be accepted or not by the jury. Although I think there is some force in the criticism by the plaintiffs counsel in the appeal of selected sentences in the trial judge's directions, I also think that force virtually disappears when the whole context is taken into account and particularly when it is remembered that the Judge was responding in what he said to the jury, amongst other things, to matters raised by the plaintiff's counsel, the substance of which does not appear in the appeal papers and is unknown to this Court but was known to the trial judge. I therefore think that insofar as the appeal is based on complaint about the directions to the jury, it fails. The second ground relied on concerned the rejection of some evidence sought to be obtained from the plaintiff's expert. The transcript reveals rather a confused position concerning what actually happened concerning the rejection of this evidence but I respectfully think the Chief Justice's understanding of how the situation concerning the evidence argument arose is correct. On that basis the second appeal point also fails. I agree with the orders proposed by the Chief Justice. Rolfe AJA I agree with the reasons of and the orders proposed by the Chief Justice. Appeal dismissed. Counsel for the appellant: P W Taylor SC/M Walsh Solicitors for the appellant: Margiotta Solicitors, Leichhardt Counsel for the respondent: J McIntyre Solicitors for the respondent: Hunt & Hunt