UNVER v LIFTRONIC PTY LTD [1999] NSWCA 275

New South Wales Court of Appeal CITATION : UNVER v LIFTRONIC PTY LTD [1999] NSWCA 275 FILE NUMBER(S) : CA 40869/98 HEARING DATE(S) : 23 June 199 JUDGMENT DATE : 29 July 1999

PARTIES : EROL UNVER v LIFTRONIC PTY LIMITED JUDGMENT OF : Mason P at 1; Meagher JA at 2; Brownie AJA at 5

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6074/97 LOWER COURT JUDICIAL OFFICER : Dodd DCJ

COUNSEL : H Kelly (Appellant) B Toomey QC and P Mooney (Respondent) SOLICITORS : Gibsons (Appellant) Vandervords (Respondent) CATCHWORDS : NEGLIGENCE - Work Injury - Unsafe System - Contributory negligence - No question of principle DECISION : Appeal upheld - direction for Short Minutes

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40869/98 DC 6074/97

MASON P MEAGHER JA BROWNIE AJA

Thursday 29 July 1999 EROL UNVER v LIFTRONIC PTY LIMITED JUDGMENT

1 MASON P: I agree with Brownie AJA. 2 MEAGHER JA: In this matter I disagree with Brownie AJA. The matter seems to me to be entirely covered by the High Court decision in Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492. 3 As Brownie AJA concedes, there was ample material for the jury to find contributory negligence. Indeed, he himself would put it at 20%. The appellant invented a new and dangerous system of doing his job, that new system made the use of lifting hooks (invented for his safety) impossible, and he bent his back although forbidden to do so. These are obvious acts of contributory negligence, and of some magnitude. I cannot see how the jury's apportionment of 60% is in any way more perverse than the judges apportionment of 90% in Podrebersek v Australian Iron & Steel Pty Limited (supra) nor indeed of Brownie AJA's apportionment of 20% in this case. 4 I would dismiss the appeal with costs. 5 BROWNIE AJA: The appellant was injured on 20 February 1995, in the course of his employment by the respondent. On the trial of his action for damages, the jury found that the respondent had been negligent, but that the appellant had been guilty of contributory negligence. The appellant appeals from the decision of the trial judge, Dodd DCJ, allowing the question of contributory negligence to go to the jury, and from the jury's assessment that the appellant should bear 60 per cent of the responsibility for the damage. 6 I approach the case on the basis that, whilst there were a number of factual issues litigated at the trial, the jury found that the respondent had failed to provide a safe system of work; but otherwise we should assume that the jury found in favour of the respondent on all (relevant) other issues that were litigated. 7 The appellant and an apprentice, Mr Dawes, were instructed by a foreman, Mr Carson, to clean and paint some rails, intended to be used in a lift shaft (or shafts). Each rail was about 5 metres long, and weighed about 111 kilograms. They had been delivered to the site in question in bundles of 10, strapped together, and they were resting on the floor. Mr Carson instructed the appellant and Mr Dawes to "split the bundle", and to then clean and paint each rail. The system of work adopted, apparently in accordance with Mr Carson's instructions, involved moving each such rail, one at a time, from where it was lying in the bundle, and placing it on to two pieces of wood which lay upon the floor some two metres away. That is, the rail was placed so that it rested on, and was raised above the floor by two pieces of wood, approximately 2 inches thick, lying at right angles to the line of the rail. When the rail was in this position, the two men could clean and paint it. 8 This system was adopted perhaps two working days before the accident. It involved the appellant and Mr Dawes lifting each rail, one at a time, with each man using a lifting hook, and with each hook being inserted into an eye, or hole, in the rail; it involved each rail being lifted a short height and then lowered onto the pieces of wood; and Mr Carson told the appellant that, when lifting, he was to bend his knees, and not his back. 9 On the day of the accident, after working for about two hours, the appellant told Mr Dawes that he was fed up with painting the rails, whilst bending over. He said that he wanted to lift the rails to a better height, so that he could paint them without bending over. The appellant found something described as a scaffold frame and placed this in an appropriate position. He and Mr Dawes then lifted the next rail on to the scaffold frame, so that the rail then stood about 2 feet above floor level. Within "probably about 5 or 10 minutes" of adopting this new procedure, the appellant hurt his back, lifting a rail. When lifting it on to the scaffold frame, the appellant and Mr Dawes lifted the rail manually, rather than using the lifting hooks. The shape and size of the lifting hooks made it inappropriate to use them to lift the rail to a height of about 2 feet, rather than about 2 inches. 10 The appellant contended, amongst other things, that the rails were too heavy for two men to be asked to lift even if they used the lifting hooks provided, and even if they only had to be lifted to a height of about 2 inches. There was evidence, neither contradicted nor challenged, that 39 kilograms was the absolute weight that might safely be lifted, assuming that this happened on a once per 8 hour basis, under ideal conditions, by a person trained in lifting, keeping his back straight, bending his knees and avoiding twisting, whereas the appellant and Mr Dawes had to lift about 55 kilograms each, repetitively. The finding by the jury of negligence means that the jury accepted at least the general thrust of this case. The finding of contributory negligence means that the jury accepted that the appellant disobeyed the instructions of Mr Carson, in not using the lifting hooks provided, and in placing the rails upon the scaffold frame rather than on the pieces of wood, that is, that he and Mr Dawes lifted the rails manually rather than using the lifting hooks, and lifted them to a height of about 2 feet rather than about 2 inches. One's intuitive reaction is that the greater the height of the lift the greater the risk of injury, but there was no evidence to that effect and, as the respondent conceded, once the decision was made to put the rails on to the scaffold frame rather than the pieces of wood on the floor, it was inappropriate to use the lifting hooks. 11 The appellant chose to modify the system of work devised by the respondent, because of the discomfort and inconvenience of having to repetitively clean and paint rails, when the rails rested on pieces of wood, some 2 inches above floor level. As I have said, this involved disobeying the instructions he had been given, but as Mr Dawes said, it made it easier for the appellant and Mr Dawes to paint (and presumably to clean) the rails. 12 The notion involved, that the appellant disobeyed instructions he had been given, needs to be seen in its context. He chose to modify the system provided, with a view to making the work easier to do, and less uncomfortable. So far as the evidence goes, the limit of the instructions given to the appellant was, in general terms, that he was to follow the pattern of work that I have described; and he was given explicit instructions that, when lifting, he was to keep his back straight and bend his knees. However, so far as the evidence extends, that was the limit of his express instructions. 13 The obligation of the respondent was not just to provide a system of work but to establish, maintain and enforce it, accident prevention being one of the respondent's responsibilities: McLean v Tedman (1984) 155 CLR 306, 313. If the system of work provided involved employees working in conditions of discomfort, it was plainly foreseeable that they might take steps to ameliorate those conditions, whilst otherwise working in accordance with the system. 14 The issue of contributory negligence has to be approached on the footing that the respondent failed to discharge its obligation to provide a safe system: McLean at 315. What the appellant did constituted an unauthorised departure from the system provided, but putting the respondent's case at its highest, as one must at this stage, it seems to me that what the appellant did was to change the system so as to reduce the discomfort and inconvenience of working for hours (with interruptions when moving the rails) in a crouched, kneeling or similar position. The jury's verdict means that in doing that, the appellant failed to take sufficient care for his own safety, in relation to the lifting of the rails on to (and off) the scaffold frame, and doing that manually rather than with the lifting hooks. In my view this was something the respondent ought to have foreseen and guarded against, but in any event what the appellant did was inadvertent on his part. That is, so far as the evidence shows, the appellant did not foresee or even turn his mind to the possibility that the modified system he adopted carried a risk of injury. The respondent referred to the decision in Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492 at 493-494. It is of course very difficult to successfully challenge the assessment of a jury as to the measure of apportionment of responsibility for contributory negligence, but in this case the assessment by the jury that the plaintiff should bear 60 per cent of the loss seems to me to have been perverse, and I propose that the appeal be allowed and an assessment of 20 per cent substituted. This seems to me to be as high a percentage as might reasonably have been found. 15 The decision of Dodd DCJ to leave the question to the jury was, of course, correct. 16 The appellant also appeals from the decision of the learned trial judge that the respondent was entitled to a credit for the whole of the amount paid by way of workers' compensation benefits, rather than only 40 per cent of that sum, being the extent of the respondent's responsibility, in accordance with the jury's verdict. The respondent conceded that this finding could not stand, and that the amount for which the respondent was entitled to a credit ought to be reduced. On the finding I propose, the amount to which the respondent is entitled to a credit should be reduced by 20 per cent. 17 I propose that the appellant bring in short minutes giving effect to these reasons for judgment.