Audisho v Sealy of Australia (NSW) Pty Ltd [2004] NSWCA 119

New South Wales Court of Appeal

CITATION : Audisho v Sealy of Australia (NSW) Pty Ltd [2004] NSWCA 119 HEARING DATE(S) : 8 April 2004 JUDGMENT DATE : 8 April 2004

JUDGMENT OF : Handley JA at 13; Giles JA at 2; Ipp JA at 14 DECISION : Appeal dismissed with costs.

CATCHWORDS : Negligence - whether employer failed to provide a safe system of work - submissions on appeal not within pleadings or manner case conducted at trial - no error in judge's conclusion - no question of principle. ND CASES CITED : Council of the Shire of Wyong v Shirt (1980) 146 CLR 40. PARTIES : Oliver Audisho - Appellant Sealy of Australia (NSW) Pty Ltd - Respondent FILE NUMBER(S) : CA 40535/03 COUNSEL : J Glissan QC & A Reoch - Appellant H J Halligan - Respondent SOLICITORS : Ron Kramer Associates - Appellant Hicksons - Respondent

LOWER COURT District Court JURISDICTION : LOWER COURT DC 12876/01 FILE NUMBER(S) : LOWER COURT Williams DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40535/03

HANDLEY JA GILES JA IPP JA

Thursday 8 April 2004 AUDISHO v SEALY OF AUSTRALIA (NSW) PTY LTD Judgment 1 HANDLEY JA: I will ask Giles JA to give the first judgment. 2 GILES JA: This is an employee's appeal from a verdict and judgment for the employer. I will refer to the parties as the plaintiff and the defendant respectively. 3 The plaintiff worked from March 1999 in the defendant's mattress factory. He claimed that he was required to perform repetitive and prolonged lifting and turning over of mattresses, that this brought what was sometimes referred to as an over-use injury to his forearms and that the injury was due to the defendant's failure to provide a safe system of work. 4 The judge accepted that the plaintiff had sustained injuries, and said that he was "quite prepared to accept that the plaintiff may well have sustained an injury in the course of his employment with the defendant". He did not think, however, that the injury was due to a failure to provide a safe system of work. He said that he was not satisfied that the injury was either a consequence of repetitive movements or reasonably foreseeable by the defendant. 5 There was some debate this morning over the judge's lack of satisfaction that the injury was a consequence of repetitive movements. However, it was properly recognised by Mr Glissan QC, whose submissions were put with commendable economy and recognition of the true issues, that the question of foreseeability was the key to the judge's reasoning. The judge was not satisfied that the plaintiff had established that the defendant should reasonably have foreseen that the manner in which the plaintiff was required to work would bring over-use injury, and thus in performing the exercise required according to the well known principles in Council of the Shire of Wyong v Shirt (1980) 146 CLR 40 at 47-8 did not act unreasonably in having the system of work within which the plaintiff was carrying out his activities. 6 Mr Glissan's argument on this was presented at two levels. 7 First, he relied on the guidance in the Code of Practice for Manual Handling part of which was an annexure to the first report of Dr Coyle called as an expert for the plaintiff, to the effect that employees should have the knowledge and ability required to perform a task and that there was increased risk if a negative answer was given to the question whether the demands of the task were within the physical capacity of the employee. Mr Glissan submitted that what was involved in foreseeability had to be taken in the context of the duty owed by the employer, and that with regard to the guidance so identified the defendant should have, but failed, to undertake a risk assessment of the plaintiff and to recognise that the demands of the task were not within his physical capacity. In effect, it was said the defendant had deprived itself of the opportunity of foreseeing the risk of injury by failure to undertake the individual risk assessment. 8 The difficulty with this submission is that there was no such issue at the trial. The particulars of negligence do not, as I read them, extend to it. Dr Coyle stated in his report that certain sections of the Code of Practice for Manual Handling, which he identified, were relevant, and quoted from one of them, but the sections to which he referred did not include that in which the guidance abovementioned is found. There was otherwise no suggestion that some issue of failure to undertake an assessment of the plaintiff's susceptibility to injury or capacity to carry out the work required of him was something the defendant should have done, and the absence of such a suggestion is particularly marked when the defendant called Mr Reinhard, a senior employee, and nothing in that area was put to him. 9 In my view the reliance on the Code of Practice for Manual Handling, and indeed that whole aspect of failure to provide a safe system of work, was not open to the plaintiff and cannot be agitated on appeal. 10 The second way in which Mr Glissan put the matter was, with respect, only an attempt to overcome the problem of which I have just spoken. He submitted that regardless of the Code, as a matter of common sense it should have been recognised that the plaintiff was significantly at risk of injury given his physical stature and work experience and that there was failure to provide for him a safe system of work: that is that he was required to do work beyond his capacity or there was not provided some assistance in doing his work which catered for his physical capacities. One again, however, it seems to me that that was not part of the pleaded case or the case open to the plaintiff in the manner the trial was conducted. 11 If one comes back, then, to the judge's conclusion, his Honour expressed doubt that the plaintiff had established the precise injury which he suffered and, more important, was not satisfied that it was a consequence of repetitive movements as distinct it seems from some more general aspect of the plaintiff's employment. From that basis, he was further not satisfied that the defendant should have foreseen that the plaintiff would suffer the so-called over-use injury from doing the work which he did. His Honour accepted that the plaintiff was rotated in his work. Although his Honour did not refer to it, there was evidence from Mr Reinhard that the safety committee had, even with knowledge of the plaintiff's condition, not considered that any change in the glue construction area of the factory (being that which on the thrust of the plaintiff's evidence brought the repetitive work) was required. Mr Reinhard also gave evidence that independent risk assessors had gone through the factory from top to bottom, who did not raise concerns about the glue construction method. This, it seems to me, only adds to the conclusion to which I would otherwise have come, that no error has been shown in his Honour coming to the opinion that he was not satisfied that the injury to the plaintiff was foreseeable in such a manner that there was negligence in failing to accommodate either his particular physical capacity or, more generally, an alteration in the way he was required to carry out his work. 12 Despite Mr Glissan having put everything which it seems to me could properly be put in favour of the appeal, I consider that it should be dismissed with costs. 13 HANDLEY JA: I agree. 14 IPP JA: I agree. 15 HANDLEY JA: The orders of the Court will be as pronounced by Giles JA. **********