Daypack Pty Ltd v Burns [2003] NSWCA 83

New South Wales Court of Appeal

CITATION : Daypack Pty Ltd v Burns [2003] NSWCA 83 HEARING DATE(S) : 17 April 2003 JUDGMENT DATE : 17 April 2003

JUDGMENT OF : Giles JA at 1; Hodgson JA at 17; Davies AJA at 18 DECISION : Appeal dismissed with costs.

CATCHWORDS : Safe system of work - box packed in under bench - worker injured hand when using force to pull it out - hand came free and struck underside of bench - whether forseeable risk of injury - whether alternative system of work available - on facts, trial judge's finding of breach of duty of care not erroneous. Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872; CASES CITED : Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; TNT Australia Pty Ltd v Christie (2003) NSWCA 47; Wyong Shire Council v Shirt (1980) 146 CLR 40. PARTIES : Daypack Pty Ltd - Appellant Jacquelyn Maree Burns - Respondent FILE NUMBER(S) : CA 40698/02 COUNSEL : J F Burns - Appellant S Campbell SC & B McManamey - Respondent SOLICITORS : Tunks Legal - Appellant Stacks The Law Firm - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6664/00 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40698/02 DC 6664/00

GILES JA HODGSON JA DAVIES AJA

Thursday 17 April 2003 DAYPAK PTY LTD v BURNS Judgment 1 GILES JA: This is an appeal in personal injury proceedings brought in the District Court. The plaintiff recovered a verdict and judgment for a sum in excess of $350,000. The appeal is on the issue of liability only. 2 The plaintiff was employed by the defendant as a packer. She worked at a bench about thirty-eight or thirty-nine inches high (those dimensions and other measurements in the proceedings being in Imperial measure). On the day in question she was packing what were described as mother-to-be bags, which involved placing a number of products, magazines, soap, nappies and such like, into bags for distribution to expectant mothers or mothers of newborn babies. The products were taken from various boxes in order to be placed in the bags. The nappies were taken from a box of nappies which the plaintiff had to retrieve from beneath the bench. 3 The nappy box was about three feet high, two and a half feet long and one and a half feet wide, and was standing on end so that its longest dimension was vertical. There was thus two or three inches clearance between the top of the box and the underside of the bench. Various estimates of the weight of the box were given, ranging from five to ten kilograms with perhaps a preponderance towards the higher weight. It would have been open to the defendant to call evidence of the precise weight, which it did not do, and the defendant's counsel accepted before us that we should proceed in the appeal on the basis of a heavier weight, towards the ten kilograms end of the spectrum. 4 The nappy box was described by the plaintiff as tightly packed in. In order to get it out she had to tilt it forward and get one hand underneath it, and put another hand on top of it and pull the nappy box out. Being tightly packed, this must have involved a degree of force, and it was an exercise which was undertaken without features of the box on which a grip could be taken because the trial judge found that the box was not held together by strapping (as at one point was in issue) but by sticky tape flat on the surface of the box. 5 In pulling the box out the plaintiff was crouching and reaching forward under the bench. She said that as she sought to pull the nappy box out the bottom of the box collapsed, and her left hand on the top of the box flew up and hit the angle iron supporting the top of the bench. This brought the injury in respect of which she sued. It was quite a serious injury, and perhaps unexpectedly serious, but there was no longer any issue about that in the appeal. 6 The trial judge related essentially these facts, adding to them that the plaintiff was operating under pressure because she was effectively on piece rates and for that reason calling a storeman to pull the box of nappies out from under the bench was not something she did. 7 The essence of his Honour's reasoning, after referring to the well known passage from Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48, was - "Here Counsel for the Defendant submitted that the actions of the Plaintiff in getting a new box of nappies in the manner she did, as directed by the Defendant, was as commonplace as opening a cupboard to retrieve an item. He said that nobody could foresee in the absence of complaint, that the removal of the box under a bench could cause injury to persons such as the Plaintiff. However, while this analogy has some attraction it fails as the Plaintiff was operating as part of a system of work determined by the Defendant. She was under pressure. The boxes of nappies, as part of the system, were stored under the bench and she was required to get them out herself if no storeman was available. The box was stored upright with a narrow gap at the top and packed against other boxes. There were alternatives available to the Defendant – insisting that only storeman retrieve the boxes under the bench for the Plaintiff or other workers as required or store them by the side of the bench rather than under the bench. The latter system was adopted by Mrs McPherson a worker with 16 years with the Defendant, who insisted the boxes be stored by the bench rather than under it, a request to which the Defendant apparently complied. In my view the system employed by the Defendant as explained by the Plaintiff involved a risk of injury to the Plaintiff was not far-fetched or fanciful and was foreseeable. I find the Defendant guilty of negligence." 8 On one view the conclusion of this passage showed error in moving straight from foreseeability of injury to a finding of negligence. Reading the reasons as a whole, however, I do not think the error was committed, since his Honour explicitly referred to the necessity to determine the response of a reasonable man having regard to the magnitude of the risk and its probability weighed against the practicality of those precautions which may be taken to prevent it, and did refer to alternatives available to the defendant. 9 One of those alternatives, insisting that only a storeman retrieve the boxes under the bench for the workers, is not easy to support, as that would mean only that if there were negligence in the system of work and injury were suffered by the storeman it would be the storeman rather than the packer who could complain of breach of duty. The other alternative, however, was available on the evidence. Another witness gave evidence that for what may not have been much more than reasons of convenience she insisted that the boxes be stored beside her bench rather than under the bench, but that was done and it indicates that it could have been done in the case of the plaintiff's boxes. The defendant did not call any evidence, and accordingly did not put forward a case that it could not have been done. 10 The argument before us focussed very much on the question of foreseeability. 11 Mr Burns for the defendant submitted that no question of alternatives arose unless there were first found a risk foreseeable to the defendant against which the defendant should have guarded, and that no employer, however prudent, would have foreseen an accident of the kind which happened. He pointed out that there was no evidence that such an accident had happened before and, rather optimistically in my view, characterised a ten kilogram box as light-weight. His core submission was that there was such a minimal and unforeseeable risk that there was no occasion for the defendant to do anything other than it did, that is have the boxes under the bench and dealt with in the manner with which the plaintiff dealt with the nappy box. 12 Mr Campbell SC for the plaintiff reminded us that the plaintiff's case was against her employer, and of the observation by Kirby J in Schellenberg v Tunnel Holdings Pty Limited (2000) 200 CLR 121 at 160 that the common law required of an employer vigilance and attention to the needs of accident prevention. This observation was part of the passage taken up in this Court in TNT Australia Pty Limited v Christie (2003) NSWCA 47. Mr Campbell reminded us also, with reference to Ferraloro v Preston Timber Pty Limited (1982) 56 ALJR 872 at 873, that an employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted tasks. Mr Burns did not contest either of these propositions. 13 Mr Campbell pointed to the weight of the box and the awkwardness of crouching down and reaching under the bench, and to the need when the box was tightly packed in to exert force, including a lifting force to get a hand beneath the box in order to pull it out. He submitted that it was readily enough foreseeable that the box could suddenly jerk free from where it was packed in between other boxes, or could collapse, or that a hand could slip, with amongst other consequences not inconsiderable contact between the hand of the worker and the closely proximate angle iron of the bench. He said that the risk could easily have been eliminated by storing the boxes otherwise than under the bench, as the trial judge said, or alternatively by at the least storing them in such manner that they were not tightly packed in and were not so close to the angle iron supporting the top of the bench, for example by storing the nappy boxes on their sides. 14 Both parties recognised that the question was a fairly simple one, which is not to say that the answer is so simple. For us however, it is necessary to ask whether it has been shown that the trial judge was in error in the answer he gave to the question. I do not think that he was. 15 That the nappy box was tightly packed in is important. In my view it was readily open to the trial judge to conclude that there was a foreseeable risk of injury sufficient on the "calculation" required by Wyong Shire Council v Shirt to call for guarding against what occurred. That could have been done by storing the boxes beside the bench, or at the least by ensuring that they were not packed in so that the awkwardness and force brought a risk that if something went awry the workers' hands would strike with force the surrounding elements of the bench. The trial judge's reasons were economical, but I consider that they were sufficient to demonstrate the way he came to his conclusion and I do not think that error has been shown in his coming to it. 16 For these reasons, I propose that the appeal be dismissed with costs. 17 HODGSON JA: I agree. 18 DAVIES AJA: I agree with Giles JA. 19 GILES JA: That will therefore be the order of the Court. **********