Prem Chandra Lal v Rainsfords Pty Ltd [1999] NSWCA 413

New South Wales Court of Appeal CITATION : Prem Chandra Lal v Rainsfords Pty Ltd [1999] NSWCA 413 FILE NUMBER(S) : CA CA 040854/98 HEARING DATE(S) : Tuesday 2 November 1999 JUDGMENT DATE : 2 November 1999

PARTIES : Prem Chandra Lal (appellant) Rainsfords Pty Ltd (respondent) JUDGMENT OF : Meagher JA at 1; Stein JA at 5; Fitzgerald JA at 10

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 7139/97 LOWER COURT JUDICIAL OFFICER : Puckeridge DCJ

COUNSEL : A: Mr A M Donaldson QC, Mr J Anderson R: Mr AB Parker SOLICITORS : A: Steve Masselos & Co R: Curwood & Partners CATCHWORDS : workplace injury-; alleged breach of duty of care ; lack of spaciosness in workplace ; damages DECISION : Dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

040854/98

MEAGHER JA STEIN JA FITZGERALD JA

TUESDAY 2 NOVEMBER 1999 PREM CHANDRA LAL v RAINSFORDS PTY LIMITED JUDGMENT

1 MEAGHER JA: This is an appeal by a disappointed plaintiff, Mr Lal, from a judgment given by his Honour Judge Puckeridge of the District Court on 16 October 1998. Mr Lal was claiming damages for injuries which occurred on 25 November 1996 in the course of his employment with the defendant company now the respondent company. 2 He was employed as a machine operator, the machines in question were involved in making coat-hangers. He claimed that his duties also involved him uplifting and carrying boxes or cartons of hangers from a table a distance of approximately 2.8 metres to place on a pallet. The cartons were apparently stacked one on top of the other. He claims that as he was carrying one carton from the work table to the pallet, for the purpose of putting it on top of other cartons which were already on the pallet, the carton slipped off his shoulders and in trying to retrieve it and to avoid hitting the fellow employee who could have been injured if the box fell on her, he injured his back. He claimed that the system of work was unsafe and that he was required to carry the box or carton of hangers in the manner indicated within close proximity to fellow employees who might be injured if the box slipped or if he lost balance while carrying the box. He claims that the defendant employer, the respondent employer in the present case was in breach of its duty of care to him as an employee and is therefore entitled to damages for the injury to his back. 3 In essence he said the negligence which the employer is guilty of was not giving him a sufficiently spacious place in which to work. That if the work place were rearranged so there was more room between him and his fellow employee whom he was striving to shield from danger, the accident would not have occurred. It is a difficult proposition, it is careful to note that it is not suggested that there was anything negligent in the process of lifting the carton itself. The only element of negligence which could possibly exist is lifting the carton within an unnecessarily confined area. There were two industrial specialists who gave evidence on this point, one was Mr Simpson and the other was Mr Donahue. As far as Mr Simpson is concerned there is a slight degree of evidence and I must emphasise the word slight to the effect that if there had been a greater degree of space in which to work the accident may not have happened. 4 There are several difficulties with accepting this view. One is that his Honour found to the contrary, another is that Mr Donahue whose evidence obviously was preferred by his Honour specifically says that the workplace condition was spacious. The third and perhaps the final difficulty is this, that even if there were lots of space, one of the duties which the plaintiff had to perform was to lift the cartons which were packed by his fellow female employees, he would necessarily have to come into very close contact with his fellow employees for that purpose and the dangers of dropping a carton on his fellow employees still exist, may indeed be increased. For those reasons and the view that there is no possibility of reversing his Honour's finding, that the suggestion of negligence through lack of space was not made out in the Court below, his Honour said that the Court could not infer from the expert evidence if the layout of the workplace could reasonably have been altered so the workers involved in the operations of the defendant would not be in close proximity to other workers. I quite agree. In my view in those circumstances the appeal should be dismissed with costs. 5 STEIN JA: I agree with Mr Justice Meagher and the orders which he proposes, I will just make some brief remarks of my own. 6 The appellant's case essentially comes down to a submission that Mr Simpson's evidence showed that there was a reasonable alternative available by allowing the appellant to have more room to carry out his work, that is to lift and carry the box to the pallet and this would remove the need for him to put himself at risk while avoiding boxes falling on those around him. The appellant also submits that there was evidence before the Court of space to allow more room for lifting. It is said that this is to be found in part in the report of Mr Donahue who gave a report on behalf of the defendant but did not give oral evidence, in particular at page 33 in the blue book. This is what Mr Donahue said in his report, "The environment around the work stations is spacious and free of obstructing material of all kinds. There is a table placed beside the operator as they work singly or in pairs. The pallet is a good three point five metres distance from each moulding machine with a further two point five metres wide walkway the warehouse storage behind which is open plan in design. Apart from the table on which the hangers are grasped, the box which is being filled and the pallet onto which they are stacked there are no other objects in the work station area". 7 Reliance is placed upon part of that passage which indicates that the warehouse storage behind is open plan in design. For my part on an understanding of where that appears to be referring to on the plant floor it does not seem to assist the appellant. Moreover, the balance of the passage that I have quoted does not assist the appellant, rather the reverse. There is also another passage in Mr Donahue's report in his concluding comments. He says his opinion is that the defendant acted reasonably in the design of its facility and in its operation as it affected the plaintiff in the course of his duties. 8 The trial judge came to two relevant conclusions, the first at page 15 in the red book which is as follows, "I do not consider the Court could infer from the expert evidence that the layout of the workplace could reasonably have been altered so that workers involved in the operations of the defendant would not be in close proximity to workers including the plaintiff required to carry hangers from the conveyer to the pallet". That is the first quotation. 9 The second one is over the page on page 16 where he says as follows, "It has not been shown to the Court that there was a reasonable practical alternative in all the circumstances". I think both of those conclusions were well open to his Honour in the circumstances. I would dismiss the appeal. 10 FITZGERALD JA: I agree with the other members of the Court and add only that in my opinion there was insufficient evidence to make out the appellant's alternative case that he dropped the box because the respondent had unreasonably required him to work under excessive pressure. And failed to give him adequate training to carry out his tasks. I agree with the orders proposed. 11 MEAGHER JA: The orders of the Court therefore the appeal is dismissed with costs. 12 PARKER: I'm instructed to seek indemnity costs as a result of the Calderbank letter. 13 MEAGHER JA: Have you got a letter? 14 PARKER: Calderbank letter. 15 MEAGHER JA: Yes. 16 PARKER: Dated 18 October. 17 FITZGERALD JA: Wouldn't most of the costs have been incurred by them? 18 PARKER: To some degree yes. 19 FITZGERALD JA: Don't you think you've got enough? 20 PARKER: I'm only following my instructions. 21 ANDERSON: All that can be said in answer to the claim in my submission is that there's no indication that indemnity costs would be sought. 22 STEIN JA: You've got a letter. 23 MEAGHER JA: I think you've got better points than that. 24 No, ordinary costs not indemnity costs.