Gray v Australian Postal Corporation [1999] NSWCA 96

New South Wales Court of Appeal CITATION : Gray v Australian Postal Corporation [1999] NSWCA 96 FILE NUMBER(S) : CA 40078/98 HEARING DATE(S) : 18/03/99 JUDGMENT DATE : 15 April 1999

PARTIES : Gregory Gray v Australian Postal Corporation JUDGMENT OF : Priestley JA at 1; Beazley JA at 2; Fitzgerald JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 2473/94 LOWER COURT JUDICIAL OFFICER : Freeman DCJ

COUNSEL : B M J Toomey QC/M K Minehan (Appellant) C T Barry QC/B J Skinner (Respondent) SOLICITORS : Stewart Cuddy & Mockler (Appellant) Australian Government Solicitor (Respondent) CATCHWORDS : Workers compensation; safe system of work; failure to ensure adherence to the system; failure by trial judge to accord due weight to documentary evidence. CASES CITED: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 DECISION : Appeal allowed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40078/98 DC 2473/94 PRIESTLEY JA BEAZLEY JA FITZGERALD JA

Thursday, 15 April 1999

Gregory GRAY v AUSTRALIAN POSTAL CORPORATION

JUDGMENT

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 BEAZLEY JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: The appellant worked for the respondent as a mail truck driver from 23 May 1988 to 5 July 1989. He was aged 24 when he commenced his employment by the respondent after passing a medical examination on 27 April 1988. Unknown to either party, the appellant suffered from a mild kyphoscoliosis, involving slight curvature of his spine in two places, and a spinal bifida occulta at L5S1 with a pars defect and asymmetry of the left alar. Both conditions were probably congenital, and existed prior to the commencement of the appellant's employment by the respondent. 4 Broadly stated, the appellant's work included loading mail bags onto conveyor belts and trucks, unloading mail bags from trucks, and collecting mail bags from post boxes and money containers from public telephones. Sometimes there was assistance available in connection with the loading and unloading of mail bags, but assistance was never available to remove a mail bag from a post box and place it on a truck, and it was sometimes necessary for the appellant to carry as many as six money containers from public telephones, weighing up to five kilograms each, because the vehicle used to transport the money containers could not be locked. 5 The respondent was acutely aware that excessively heavy mail bags, or lifting and moving mail bags in an unsafe manner, involved major safety risks. It was also aware that, while some workers might be able to handle heavier bags, other workers might be injured if they did so. In mid-1984, in order to avoid, or at least minimise, injuries from manual handling of mail bags, the respondent had instituted a system limiting the maximum weight of each mail bag to 16 kilograms. Mail bags which exceeded that limit were required to be marked with a sticker which indicated that the bag was heavy and should be lifted by two people. 6 The trial judge, who dismissed the appellant's action against the respondent, found that "the system instituted by the [respondent] was as good, within the limits of reasonable practicality as it could be", the appellant was not "exposed to a system of work which was so deficient as to produce a foreseeable risk that he would sustain injury", and that his injury did not "in fact result from the respondent's failure to take reasonable care". His Honour added: "There is of course an inherent risk in any human movement particularly when weight bearing but the [respondent] is not obliged to eradicate all risks of any injury." 7 By way of elaboration, his Honour found that there was "nothing … about the nature of the work as ordinarily performed which would indicate that a worker within the normal range of health and strength would have been put at risk by it." The evidence of witnesses called by the respondent satisfied his Honour that occasions when the appellant "received unmarked heavy bags and … [was] placed in a position where he twisted his body in order to throw these bags" were "rare" or "very rare". Accordingly, the appellant's contention that, even if the respondent's system, as designed, was adequate, failure to adhere to the system negligently caused him injury was rejected. 8 Considered in isolation, the testimony of the witnesses to whom his Honour referred might have permitted his conclusion. However, there was compelling evidence to the contrary in the respondent's own documents. Exhibit Q was a collection of more than 400 reports between 1984 and 1993, a period during which the 16 kilogram limit system was in operation. Most of the reports referred to the years between 1988 and 1989, including 61 in 1988 prior to the appellant's "claimed injury in July or August". 9 The trial judge accepted that the collection was "some sort of representative sample", and that an attempt has been made to "limit the reports to those involving injury from handling mail bags". However, it was noted that some of the reports did not refer to injuries, and that nearly 10% did not refer to the handling of mail bags but to other "disparate activities". His Honour also noted that the location at which injuries had occurred were "equally varied", although some referred to Rushcutters Bay and Rosebery Mail Centres, which were among the places where the appellant worked. According to the trial judge, "the only lesson" he could "draw from … the reports was that "where there are large numbers of employees engaged in transferring extremely large numbers of items of significant weight then there exists, in the nature of the undertaking, a general risk that some of those employees will sustain injury to their backs". His Honour went on to say that he thought commonsense would supply this information. 10 Whether or not that is so, the collection of reports was of considerably more significance than the trial judge acknowledged. His Honour's findings included the following statements: "The nature of the injuries reported is also varied. By far the greatest single category is low back pain and back pain which unless otherwise identified seems from reading the reports to refer to the low back. On this basis about 50% are perhaps relevant… None match the ways in which the [appellant] claimed to have sustained his injury. True a considerable number of complaints are made about bags exceeding the 16kg weight limit and not being marked but a surprisingly high proportion (almost two third) relate only to the nature of the work, that is lifting which is rapid, repetitive and heavy although not said to involve loads over the 16kg limit. Of the incidents involving bags weighing more than 16kg 40% were not marked." Implicit in those statements is the proposition that more than one third of the approximately 200 reports relating to low back injuries involved bags which exceeded the 16kg limit, and of these "40% were not marked". 11 The deference which appellate courts are required to pay to findings by trial judges has again been explained by the High Court in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liquidation). (1999) 73 ALJR 306. Giving due weight to the applicable principles, I am satisfied that this Court should hold that the material reports forming part of Exhibit Q demonstrate that the trial judge erred. That that is so is confirmed by a later finding by his Honour, when discussing the appellant's medical history. In the course of that discussion, his Honour stated that the appellant had had no difficulty in performing his work for the respondent except when performing "repetitive lifting of very heavy loads." 12 Although the respondent's system was designed to discharge its duty of care to its employees, a significant body of evidence proved that the practical implementation of the system exposed employees handling mail bags to unnecessary risk of injury. Accordingly, the respondent breached its duty of care to the appellant, and is liable to him for any injury which was caused by his performance of his duties in accordance with the system of work actually implemented by the respondent. See, for example, Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25; Brkovic v J O Clough & Sons Pty Ltd (1983) 57 ALJR 834; and Braestina v Bankstown Foundry Pty Ltd (1986) 160 CLR 301. 13 Although the trial judge found for the respondent, he quite appropriately assessed the damages which he would have awarded to the appellant if he "were wrong in [his] assessment of liability". In that event, his Honour would have awarded the appellant general damages of $18,000, economic loss of $23,5000, and "Medical Expenses to be agreed in respect of the period 88-91". Those amounts were directly influenced by the trial judge's conclusion that, even if the respondent breached its duty of care to the appellant (contrary to his Honour's view), that breach of duty did not cause more than "a minor and transient injury." 14 The appellant first complained of back pain and sought medical treatment in August 1988, and thereafter, including after the appellant ceased to work for the respondent, The respondent resigned on 5 July 1989, but was again employed by the respondent, this time as a casual postman, on 5 October 1989 after he returned from overseas. His employment was terminated by the respondent on 17 July 1990, after he failed a medical examination. there was a relatively regular pattern of medical treatment and investigation and physiotherapy. However, the appellant's major difficulties did not appear until later. 15 The trial judge considered that, at the end of 1991 "… it seems clear that the consensus of medical opinion was that the [appellant] had - 1. A pre-existing scoliosis 2. Pain in the low thoracic region (ranging from the T9,10 disc space ranging down to 11,12. 3. The cause of that pain as either a facet joint disturbance (with or without a costo vertebral element) or an injury to the T11,12 disc. This view was held by Dr Patrick an orthopaedic specialist to whom the [appellant] was referred by his then solicitor in August 1992 and by Dr Seaton an orthopaedic surgeon to whom the appellant had been referred by Dr Beroudkas in October 1991. He felt there had been an injury to the T11 and 12 disc which had become spondyloarthritic." 14 His Honour then went on to note that, in late 1991 or early 1992, "… a separate site of pain became manifest. …". He added: "Whatever be the correct date on which symptoms to the low back first appeared there is no doubt that this date was far removed in time from the [appellant's] employment with the [respondent]." 15 His Honour then went on to reject "an attempt … made to relate the [appellant's] complaint in relation to his low back (whether they be L1,2,3,4 or lower) to his employment with the [respondent]. It appears to be a critical part of his reasoning that he considered that "Drs Olsen and Hall regard a connection between the 1992 symptoms and the 1998 work as being impossible". It is apparent from other parts of his Honour's reasons for judgment that he was especially influenced by the opinion of Dr Olsen, whom he said "… appears … to be peculiarly well qualified …". 16 In summary, the trial judge found that "… in the course of his employment with the [respondent] the [appellant] in 1988 suffered an injury to his low thoracic spine by way of a joint derangement. Dr Olsen thought that there may have been some aggravation by the nature of the [appellant's] work of degenerative changes related to the pre-existing scoliosis and Dr Hall thought likewise that this work may have rendered these changes symptomatic. I accept their view. However, the complete resolution of the [appellant's] symptoms by mid-1991 as described by Dr Jones means that any aggravation or injury suffered by the [appellant] in consequence of his employment with the [respondent] had run its course by that time. I accept the view of Drs Jones, Daymond, Sinclair and Professor Phiels." 17 In a further summary, his Honour found that "… the [appellant] was unfortunately a vulnerable young man who in the course of his ordinary work with the [respondent] sustained a minor and transient injury to his dorsal spine." 18 It is not clear that the latter finding is consistent with the earlier finding that the appellant suffered an injury to his low thoracic spine by way of a joint derangement and some aggravation of degenerative changes relating to the pre-existing scoliosis, or that those findings are consistent with the earlier finding that the appellant's work caused him only "a minor and transient injury". However that might be, it is apparent that his Honour's conclusion that "… the complete resolution of the [appellant's] symptoms by mid 1991" was critically influenced by his opinion that Dr Olsen regarded "… a connection between the 1992 symptoms and the 1998 work as being impossible." 19 That was not an accurate precis of Dr Olsen's position. It is unnecessary to elaborate beyond stating that, on a fair reading of all of Dr Olsen's evidence, he accepted a possible connection between the [appellant's] work for the respondent and his symptoms which first became manifest in 1992. 20 I have earlier indicated that I considered that the trial judge erred in concluding that the respondent was not negligent. I am further of opinion that the critical error made by the trial judge concerning evidence given by Dr Olsen makes it inevitable that there must be a new trial on the issue of damages. 21 Accordingly, I would allow the appeal with costs, set aside the judgment below, and order that there be judgment for the appellant against the respondent for damages to be assessed. The action should be remitted to the District Court for the assessment of damages. The respondent should pay the costs of the original trial and the retrial.