New South Wales Court of Appeal CITATION : Australian Traineeship System and Colchester GR Pty Ltd trading as Shell Service Station Waverley v Wafta [2004] NSWCA 230 HEARING DATE(S) : 07/07/04 JUDGMENT DATE : 7 July 2004 JUDGMENT OF : Handley JA at 1; Giles JA at 22; McColl JA at 23 DECISION : 1. Appeal allowed with costs.; 2. Judgment for the plaintiff in the District Court set aside, and in lieu thereof substitute judgment for the defendants in the action with costs.; 3. The respondent is to have a certificate under the Suitors Fund Act 1951. CATCHWORDS : EMPLOYER - duty of care to employee - risk that employee would attempt to lift heavy weight - not reasonably foreseeable - employer not bound to warn employee against risk - NEGLIGENCE - employers' duty of care to employee - risk that employee would attempt to lift heavy weight - not reasonably foreseeable - employer not bound to warn employee against risk Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 CASES CITED : Tame v State of New South Wales (2002) 211 CLR 317 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40 Australian Traineeship System and Colchester GR Pty Ltd trading as Shell Service Station Waverley (Appellant) PARTIES : Michael Anthony Wafta (Respondent) FILE NUMBER(S) : CA 41014/03 COUNSEL : C R R Hoeben SC/P W Khandhar (Appellant) P R Hennessy SC/M A Kumar (Respondent) SOLICITORS : Turks Legal (Appellant) Keddies (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 12032/01 FILE NUMBER(S) : LOWER COURT Walmsley DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41014/03 HANDLEY JA GILES JA McCOLL JA 7 JULY 2004 AUSTRALIAN TRAINEESHIP SYSTEM and COLCHESTER GR PTY LTD trading as SHELL SERVICE STATION WAVERLEY v MICHAEL ANTHONY WAFTA CATCHWORDS EMPLOYER – duty of care to employee – risk that employee would attempt to lift heavy weight – not reasonably foreseeable – employer not bound to warn employee against risk NEGLIGENCE – employers' duty of care to employee – risk that employee would attempt to lift heavy weight – not reasonably foreseeable – employer not bound to warn employee against risk FACTS The respondent was employed as a console operator in the appellants' service station. He injured his back when attempting to lift the corner of a display cabinet refrigerator in order to replace a mat he had cleaned. The refrigerator cabinet was nearly 2 metres long and over a metre wide and the weight the respondent attempted to lift was 65kg. The respondent sued his employers for breach of their duty of care and alleged that they should have warned him against attempting to lift the corner of the refrigerator. The trial Judge held that the injury was reasonably foreseeable and that the appellants, as reasonable employers, should have warned the respondent against attempting to lift the refrigerator. The Judge also found that if such a warning had been given the plaintiff would have complied with it. He held that the appellants had been negligent and awarded damages. HELD: A reasonable employer in the position of the appellants would not have foreseen that the plaintiff would attempt to lift the refrigerator either at all or as he did. The appellants, exercising reasonable care for the safety of the respondent, were not required to warn him of the risk. They had not created a unreasonable risk by providing the refrigerator and the mat and requiring the respondent to clean the latter and were not in breach of their duty of care. Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, 871 and Tame v State of New South Wales (2002) 211 CLR 317, 354 applied. ORDERS 1. Appeal allowed with costs. 2. Judgment for the plaintiff in the District Court set aside, and in lieu thereof substitute judgment for the defendants in the action with costs. 3. The respondent is to have a certificate under the Suitors Fund Act 1951. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41014/03 HANDLEY JA GILES JA McCOLL JA 7 JULY 2004 AUSTRALIAN TRAINEESHIP SYSTEM and COLCHESTER GR PTY LTD trading as SHELL SERVICE STATION WAVERLEY v MICHAEL ANTHONY WAFTA Judgment 1 HANDLEY JA: This is a defendant's appeal from a decision of Walmsley DCJ given on 31 October 2003. The proceedings arise out of an accident sustained by the plaintiff at work on 10 November 1999. He was then working for the appellants as a console operator at a service station at Birrell Street, Waverley. 2 One of his duties was to keep the shop section of the service station clean and this extended to cleaning a large mat which sat on the floor near the entrance to the shop section adjacent to a large refrigerator. The general area, the mat and the refrigerator are illustrated in photographs which are in evidence to which the Court was taken. 3 At a quiet time during the evening in question the plaintiff decided to clean the mat and picked it up and took it outside in order to shake off the surface dirt. In the process he had to remove one corner of the mat from under the refrigerator where it was held by a castor. On returning from this task he decided that he should place the mat on the floor unevenly in the same general position where it had been before. For this purpose he decided that he would place one corner of the mat under a castor on a corner of the refrigerator. For this purpose he attempted to lift the corner of the refrigerator and injured his back. 4 There was evidence which the Judge accepted that the weight he attempted to lift was of the order of 65 kilograms, which was far too heavy a lift for an adult male to attempt on his own. It is also clear that the plaintiff attempted this lift in an inappropriate position. 5 The Judge found that the employer was in breach of its duty of care to the plaintiff because it had failed to warn him that he should not attempt to lift the corner of the refrigerator unaided. He also found that the plaintiff would have obeyed any such instruction and therefore that a breach of duty and causation had been established. He rejected a defence of contributory negligence and entered judgment in favour of the plaintiff for $195,078. 6 The defendants have appealed and raised a number of challenges to the judgment. The principal challenge from Mr Hoeben, senior counsel for the appellant, focussed on the Judge's finding that the appellants were in breach of their duty of care. He pointed out with reference to a number of passages in the judgment from page 16 to page 22, to which we were taken, that the Judge focussed on the knowledge and foresight of the worker when considering whether there had been a breach of duty rather than on the knowledge and foresight of a reasonable employer in the position of the defendants. 7 It is not necessary to set out all the relevant passages in these reasons. I will simply refer to one passage at the bottom of p 18 and the top of p 19 in the red appeal book. His Honour said: "It is difficult to see what one should expect of a reasonable conscientious employee ... other than to put back the mat in precisely the same position in which he found it originally. He (the worker) was entitled to assume that it was its correct position since that was where it was when he commenced this part of his job. He was entitled to assume that that was where his employer wished it to be. 8 In focussing in this and other passages on the position of the employee and the reasonableness of his conduct the learned trial Judge in my respectful view misconceived his task. His task as instructed by the High Court in many cases, including the classic case of Wyong Shire Council v Shirt (1980) 146 CLR 40 was to determine the question of breach of duty in the light of the reasonable foresight of a reasonable employer and to determine what in the light of such foresight and other relevant considerations a reasonable employer would have done to obviate any foreseeable risk. 9 His Honour of course was giving an ex tempore judgment at the end of a four day trial without the benefit of a transcript and had to deal with the case in these difficult circumstances. On the other hand this Court has had the benefit of the transcript of the evidence and of further helpful argument in the light of the judgment as transcribed. Nevertheless I am satisfied that the learned trial Judge did fall into error in focussing almost exclusively on the position of the plaintiff rather than on the position of a reasonable employer in the position of the defendants. 10 There is no doubt that it was within the plaintiff's duties to clean this mat and to clean it by taking it outside and then replacing it on the floor. The real issue is whether it was reasonably foreseeable that the plaintiff would attempt unaided to lift the corner of this refrigerator. 11 When he had to replace the mat he had a number of options. He could have replaced it without attempting to put one corner under the refrigerator. He could have replaced the mat evenly within the available space. The Judge found that there was available space and rejected the plaintiff's evidence to the contrary. This is clearly demonstrated by the photographs in evidence. 12 It is not clear that a reasonable employer should have foreseen that this plaintiff would attempt to replace the mat unevenly within the space. The Judge however found that the plaintiff thought that since the mat had been lying unevenly within the space the proper course was to put it back the same way. In my view this was somewhat unforeseeable but I am prepared to assume in favour of the plaintiff that this was a reasonable course which an employer should foresee. The next question was whether a reasonable employer should have foreseen that the plaintiff would attempt to place the mat under this corner of the refrigerator by lifting it himself. 13 The refrigerator was mounted on six castors and we have seen a video which demonstrates how easily it can be moved without effort or risk on those castors. The Judge was not satisfied that it could be moved easily on its castors but with respect there was no evidence on which he could come to that view and there was ample evidence to the contrary. The plaintiff did not attempt to move the refrigerator on its castors. He gave a number of reasons at different stages in his evidence why he thought this was not possible but that evidence did not withstand cross-examination. The plaintiff made no attempt to move the refrigerator in this way and the video demonstrated how easily this could be done. In those circumstances the Judge, with respect, was not entitled to take the view that the plaintiff could not have moved it in that way. The plaintiff knew that the refrigerator was mounted on castors because he had just pulled the mat from under one. The obvious and foreseeable response was to attempt to move the refrigerator on its castors. 14 If he had attempted to do this and encountered difficulties it was still not foreseeable that he would attempt to lift this refrigerator single-handed. In the light of any difficulties, remote though they appear at this stage, in moving the refrigerator on the castors the simple obvious safe and easy course for the plaintiff was to replace the mat in such a way that one corner was not held under a castor. 15 When the various contingencies and possibilities are grouped in this way it seems to me that it is almost far-fetched and fanciful to think that a reasonable employer should foresee that a plaintiff with some considerable experience in this industry, to the knowledge of the employer, should have attempted to lift this corner of the refrigerator. The refrigerator was a substantial one. It was of the order six feet or nearly two metres long and four feet or a little over a metre wide. It was one of those refrigerators which are opened from the top and the merchandise within the refrigerated cabinet can be viewed by customers before the door is lifted. 16 There is no precise evidence as to the volume of stock in the refrigerator but on the assumption that it was only half full the weight that this man attempted to lift was of the order of 65 kilograms. I am not persuaded that a reasonable employer should have foreseen that the plaintiff would ever attempt this task. In the circumstances the risk that this would be done was not such as to require any response from the employer by way of warning or otherwise. The risk was so obvious and the alternative courses available to the plaintiff so obvious and simple that in my judgment the reasonable employer was entitled to disregard the risk and not to give any warning to this plaintiff to avoid taking what was obviously a very hazardous step in attempting to lift such a weight. 17 Recent decisions of the High Court have emphasised the importance of approaching the task of finding a breach of duty and negligence along the lines I have indicated. In Liftronic Pty Ltd v Unver (2001) 75 ALJR 867 at 871 McHugh J said: "The issue in negligence is always whether reasonable care requires the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it." 18 There was of course no cost expense or inconvenience in giving a warning but in my judgment the risk did not require any steps to be taken for its elimination having regard to its obvious nature and the common sense of the situation which should have been obvious to any reasonable adult. This was a matter that was adverted to recently in this Court in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 paras 60-63 by Heydon JA. 19 To the same effect are the comments in Tame v State of New south Wales (2002) 211 CLR 317 at 354 para 102 where again McHugh J said: "So far as possible the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires. Indeed, at the breach stage it is better to avoid the question of reasonable foreseeability. Instead courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others. Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge. 20 For the reasons I have given I have been persuaded that the plaintiff failed to establish that this defendant knew or ought to have recognised that it had created an unreasonable risk of harm to others by having this mat on its floor close to this refrigerator and employing the plaintiff in the shop with duties which included the cleaning of this mat. 21 Accordingly I am satisfied that the learned Judge erred in finding a verdict for the plaintiff and I would propose the following orders. 1. Appeal allowed with costs. 2. Judgment for the plaintiff in the District Court set aside, and in lieu thereof substitute judgment for the defendants in the action with costs. 3. The respondent is to have a certificate under the Suitors Fund Act 1951. 22 GILES JA: I agree with the orders proposed and with his Honour's reasons. 23 McCOLL JA: I also agree. ********** Last Modified: 07/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.