New South Wales Court of Appeal CITATION: Westco Distributors v Hickey's Transport & 1 Ors [2006] NSWCA 24 HEARING DATE(S): 8 December 2005 JUDGMENT DATE: 21 February 2006 JUDGMENT OF: Mason P at 1; Santow JA at 2; Tobias JA at 53 DECISION: (1) The appeal be upheld. ; (2) The judgment and orders of Twigg ADCJ be set aside accordingly and in lieu thereof there be substituted a verdict for the appellant/first defendant/cross-defendant. ; 3) The first and second respondents to pay the appellant's costs of the proceedings below and of the appeal but grant to the first and second respondents a certificate under the Suitors' Fund Act, if otherwise qualified. CATCHWORDS: NEGLIGENCE – liability – Employee suffered back injury manoeuvring heavy pallets on the back of truck - Claim against contractor/ occupier of premises (claim against employer settled) – Whether reasonable to expect contractor/occupier would not create situation for unloading that might foreseeably pose risk of injury and would assist in that unloading notwithstanding that no request was made by the injured plaintiff to do so – causation – whether award of damages excessive. WESTCO DISTRIBUTORS PTY LIMITED (formerly known as WESTERN CONFECTIONARY PTY LIMITED) (ACN 000 641 949) (Appellant) PARTIES: HICKEY'S TRANSPORT PTY LIMITED (ACN 001 802 400) (First Respondent) Patrick LYNCH (Second Respondent) FILE NUMBER(S): CA 41127/04 I G HARRISON, SC/ L V GYLES (Appellant) COUNSEL: L T GREY (First Respondent) M MAXWELL (Second Respondent) A R Connolly & Company (Appellant) SOLICITORS: Vardanega Roberts (First Respondent) Brydens Law Office (Second Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 6068/01 LOWER COURT JUDICIAL OFFICER: Twigg ADCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41127/04 DC 6068/01 MASON P SANTOW JA TOBIAS JA 21 FEBRUARY 2006 WESTCO DISTRIBUTORS PTY LIMITED ( formerly known as Western Confectionary Pty Limited) (ACN 000 641 949) v HICKEY'S TRANSPORT PTY LIMITED (ACN 001 802 400) & 1 Ors Judgment 1 MASON P: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION This claim once again tests the extent of contractor liability in negligence. The third party employer had already settled its injured employee's claim against it. The employer had employed him as a driver to transport goods to the contractor's warehouse where he was injured in course of unloading heavy pallets. The contractor, who was also the occupier of the premises, both supervised the unloading and acted as a storeman in moving these pallets via forklift trucks. 3 The injured employee plaintiff was Patrick Lynch, now second respondent. He claimed damages for negligence against his employer Hickey's Transport Pty Limited ("Hickey's"), the first respondent. He also claimed against the contractor Westco Distributors Pty Limited ("Westco") who occupied the premises where the accident occurred. The claim against the employer was settled before the hearing. However, Westco challenges the decision whereby 40% of the blame for the accident was attributed to Westco and 60% to the employer Hickey's. No issue of contributory negligence arises on appeal. Westco contends that no portion should have been attributed to it or at the least a much larger amount should have been apportioned to Hickey's. 4 The employee thus succeeded at first instance before Twigg ADCJ for the injury he suffered to his back from manoeuvring heavy pallets on the back of a truck. It was held that Westco bore 40% of the responsibility given its supervisory role as storeman in unloading the pallets with a forklift on its premises. Essentially the trial judge's reasoning was that it was reasonable to expect Westco as contractor and occupier of the premises would not create a situation for unloading that might foreseeably pose a risk of injury to Mr Lynch; Red 50T-51C. 5 Westco on appeal challenges the trial judge's findings. It contends primarily that it was not liable at all or at the most only to a minor degree. It submits that the risk was neither foreseeable nor that there had been any failure in taking reasonable steps to reduce the risk. Causation is also in issue. Finally, if unsuccessful on liability, there is a challenge to the award of damages as excessive. SALIENT FACTS 6 The salient facts are essentially undisputed. The second respondent, Patrick Lynch, began working as a driver for the first respondent, Hickey's, on 15 March 1999 and continued to work for Hickey's until 21 July 2000 (except for a three week break in 1999). 7 Mr Lynch had used Hickey's truck to deliver goods to Westco's premises on many occasions before 11 July 2000. He had been delivering Hickey's goods to the Westco site approximately once a month since he began his employment with Hickey's in 1999. 8 The truck was a Volvo FL6 – a large enclosed van which housed pallets of chocolates and other confectionery. The opening doors were at the rear of the truck. 9 On the morning of 11 July 2000, Mr Lynch was delivering pallets of confectionery to Westco's premises at Kelso. 10 Mr Lynch drove the truck into Westco's grounds (and into the loading area). He pressed the buzzer next to the roller door of the premises to inform the employees of his arrival. 11 The roller door was closed. The area where he had stopped his truck was slanted towards the roller door. 12 Mr Lynch decided to look for a flatter area. He drove his truck around the yard in order to bring it back to the loading area, perhaps in a different position. 13 A Westco employee, driving a forklift, told Mr Lynch to drive the truck to the area where he normally parked. Following that direction Mr Lynch parked his truck so that it was side-on to the loading dock with its near side (passenger side) adjacent to it. 14 The truck was on a slight incline or slope which went downwards towards the loading dock from the off-side (driver's side) to the near-side (passenger side) of the truck. 15 Mr Lynch began unloading the pallets by opening the rear doors and entering the rear section of the truck. The laden pallets were of different sizes, from about 100kg to 800kg and sometimes over 1000kg so were thus very heavy. The pallets were about 5'5" (1651mm) by 1200mm. 16 A Westco employee (there were insufficient records to identify him) began using a forklift to remove the two smaller pallets nearest to the rear of the truck. Then Mr Lynch began to place some remaining (larger) pallets in a position where the tines of the forklift would more easily remove the pallets from the back of the truck. 17 Mr Lynch had been given a defective and inadequate skid-jack by Hickey's to move the pallets. It was used mainly to lift pallets around the inside of the truck. It was not the usual pallet jack, but a substitute. The lifting mechanism of the skid-jack worked lifting smaller pallets but did not work satisfactorily with the larger ones; certainly not in comparison with his usual pallet jack. See Black, 79.56-80.2 and earlier at 23.41-.45, 28.11-13, 29.11-20. Mr Lynch in evidence described it as "a broken pallet-jack so I had to kick it". 18 There was some moisture from condensation of the refrigeration on the floor of the truck. 19 Due to the slant on which the truck was parked, gravity caused the pallets to shift. 20 After the forklift driver had removed two pallets, Mr Lynch was inside the truck, attempting to manoeuvre the remaining pallets for the next load for the forklift driver. 21 In attempting to manoeuvre the next pallet, Mr Lynch lost control. A pallet shifted so that it landed against the wall of the truck jamming the skid-jack between the truck wall and pallet. 22 Mr Lynch braced himself against the wall of the truck on the passenger side, that is, beneath the level of the slab and facing the driver's wall. This was in order to push the pallet away from the position to which it had slid. In doing so, Mr Lynch hurt the lower left side of his back. 23 Mr Lynch continued to unload, not really having any further trouble. 24 Mr Lynch continued with his work from 11 to 27 July despite pain in his back continuing. He did not complain to anyone at Westco's premises, nor to anyone connected with Hickey's until about 27 July 2000. 25 Before the hearing commenced, My Lynch's claim against Hickey's was settled. The terms were not revealed before the court made its decision on liability, contributory negligence and the cross-claims. 26 Mr Rhind, manager of Westco since 1992, said there were two safety procedures in place: (a) A long pole that could be attached to the tines of the forklift to assist in unloading of pallets; (b) Extension parts to the tines of the forklift truck (Red, 42M-P). 27 Although these were available on 11 July 2000, neither was used to assist Mr Lynch in the unloading of his vehicle (Red, 42Q). DISPOSITION 28 I have described Westco as the occupier of the premises where the pallets were unloaded. It is not in dispute that Westco was involved far more than a conventional occupier. Thus it purchased a range of goods including confectionery. These were delivered by Hickey's to Westco's warehouse by arrangement; Black, 99. 29 When deliveries were brought to the premises by truck, Westco would provide a storeman. He had both a supervisory role over the unloading and the function of moving the unloaded pallets by forklift within the premises. 30 Mr Rhind, who was the only witness for Westco, had been an employee of Westco for seventeen years before the hearing and its manager since 1992. He gave evidence about the operation of the premises at the relevant time. He explained that there were four people who had a licence on the premises to operate forklift trucks. Unfortunately no sufficient records were available to delineate clearly who was operating the forklift in Westco's premises on the day of the accident, namely 11 July 2000; Red, 41K-N. There was only one forklift operator at hand at the time. 31 Mr Rhind in dealing with the supervisory role of Westco gave the following evidence. That evidence was at the core of the argument challenged on appeal that Westco breached the duty of care which it had undertaken. "Q You also told Mr Maxwell [counsel for the second respondent] that you were keen to ensure that the loading and unloading was done in a safe manner? A. Correct. Q. Do I take then that whenever a truck came to unload, it was part of your procedure that a storeman would in effect supervise the unloading process? A. A storeman would have to be present, yes. Q. At all stages while the unloading was taking place, a storeman employee of your company was there to ensure that everything was done properly, is that right? A. Yes. Q. And safely I take it? A. Yes absolutely. Q. So that, do I take that if the driver was seen to have a problem in for example moving pallets from the back of his truck to a place where a fork lift would be able to unload it, it was part of your system that the storeman would, if he was doing his job properly, say wait we're going to help you with this, we're going to attach the pole or we're going to get on the truck and help you move it something like that? A. By all means. Q. Was that part of your system that that was to happen? A. Absolutely. Q. So the storeman who was there supervising the unloading was instructed that if he saw the driver having a problem he was to assist, is that right? A. Absolutely, yes. Q. So if in fact a driver had a problem and a storeman didn't assist, that would not be consistent with your instructions, is that right? A. Absolutely, yes. Q. It should be, I take it, the case that you weren't dependent simply on the driver complaining, your storeman was there to ensure that he would pick up problems even if the driver didn't complain? A. Correct. Q. You don't know who the storeman was on this particular day, who attended the plaintiff's truck do you? A. No I don't. Q. But if that storeman was doing his job properly, then he would have been assisting the plaintiff move pallets from the back of the truck, if the plaintiff was having -- A. He should have, yes absolutely." (Black, 111.34-112.13) 32 Mr Rhind readily conceded that no risk assessment had been undertaken, this being accompanied by a statement that he didn't see any problem; Black, 112.14-.29. 33 Mr Rhind also gave evidence, as recounted by the trial judge, that there were two safety procedures in place. The first was a long pole that could be attached to the tines of the forklift to assist in unloading of pallets. The second was extension parts to the tines of the forklift truck. 34 There was one storeman on duty on the premises who, if asked, could have assisted Mr Lynch to move the pallets from the back of the truck. But this was with the obvious practical consideration that the one storeman might not be available immediately to do so if otherwise engaged as for example with the forklift. 35 Against that background I return to what was the core of the respondents' submission, namely that Westco thereby undertook the responsibility of supervising the unloading process and was negligent in failing to discharge it. 36 The respondents' case was that had this continuous supervision taken place, while the initial sliding of the pallets to left or right might not have been anticipated, Westco should have intervened thereafter, so averting the injury. Thus had the storeman been physically in place throughout the unloading operation, he would have readily identified that Mr Lynch was in difficulties once the pallet slid over the slope to the wall of the truck. It should have been apparent that physically moving the pallets unaided and without a skid-jack, albeit a defective and inadequate one, called for exceptional exertion to move the heavy pallet. Thus even if the occupier could not be expected to recognise that the skid-jack being used was deficient, he would have seen it was jammed against the wall by the dislodged pallet. In those circumstances a reasonable set of steps on the part of the occupier through its storeman and in consequence of the supervisory obligation, was to either (a) persuade the driver to take no further steps where his safety was at risk in physically manhandling the pallets; or (b) utilise one or other of the safety procedures for manoeuvring a pallet, namely the long pole, or use of extension parts to the tines of the forklift trunk; neither occurred. 37 I need now to describe the preceding circumstances of the injury in more detail. This is to test the argument that Westco's employee should have first observed and then forestalled the accident by one or other of the safety procedures. The actual scene is depicted in sketch at Blue, 47. Mr Lynch was using the smaller skid-jack which was both inadequate and broken. The heaviest pallets were not at the rear of the truck but in the front where they had to be moved. The truck floor was slippery from condensation and there was a slope or slant where the truck had been directed to park. Hence the back of the truck had a slant towards the passenger side where the unloading was taking place between the two walls of the truck. 38 The events immediately preceding the critical incident began with Mr Lynch using the skid-jack to lift the heavy pallet off the floor of the truck. He proceeded to pull out the pallet using the handle of the skid-jack with both hands. Thereupon the pallet slid to one side as Mr Lynch moved out of the way, so jamming the skid-jack between the pallet and the wall of the truck; Black, 29. 39 Then follows this critical evidence from Mr Lynch: "Q. We go back to exhibit K [Blue, 47] and the position that you've drawn there, what happened after the pallet finished up in that position, what did you do? A. Okay, the front of the pallet actually was caught on the – there was a right and left pallet, I pulled the right one out, lost control and it landed on an angle leaning against the wall and the other pallet that was still sitting there. So what I done was pulled it back towards the back of the truck and then left the rest of it sort of fall towards the side, so it was parallel with the wall then, that's when I braced myself against the wall and tried to turn -- Q. You braced yourself against which wall? A. The left hand passenger side. Q. You braced yourself? A. Yeah put my leg up. Q. Which leg? A. Left leg. Q. And where was that leg on, what was it on? A. It was on the side wall of the truck. Q. The passenger side? A. Yeah. Q. And which direction were you facing at that time? A. I was facing – I was facing the other side of the truck, the driver's side. Q. And did you take hold of something? A. Only the handle of the skid jack. Q. And in that position what did you do? A. I pushed myself off the wall to turn the pallet jack around. Q. And what happened? A. I wasn't strong enough to do a full circle so I just moved it out enough – I hurt my back and then I moved it out enough and pulled it back to the end of the truck. Q. You say you hurt your back? A. Yeah. Q. When was that? A. That was when I braced myself against the wall and pushed with my left leg and my body to get the pallet off the wall. Q. What did you notice about your back? A. It cracked or clicked or something. Q. Where? A. The bottom left hand side. Q. Did you notice anything about yourself at that time? A. I knew it was going to hurt and I just thought it was like a pulled muscle so I didn't take a lot of notice, I just knew that I'd be having hot showers and Dencorub for a while. Q. Did you unload that pallet? A. Yes I did." (Black, 31.21-32.34) [emphasis added] 40 It is then said on behalf of the respondents that even if there were nothing to alert Westco that the deficient and damaged skid-jack would cause the pallet to slide upon the wet and slanted floor of the truck so as to cause the pallet to slide sideways to the wall thereby jamming the skid-jack, that did not exculpate Westco. Concededly Westco could not be expected to appreciate that this was a possible occurrence calling for advance intervention with one of the safety measures available. But at the point immediately after the pallet and skid-jack jammed against the wall, it should have been apparent (runs the argument) that the pallet could only be moved to the rear of the truck by the application of such physical force as to endanger the safety of Mr Lynch. Instead of providing the safety equipment to avoid that exertion of force, Mr Lynch was left to his own devices and suffered the injury he did. That he did not call for help was nothing to the point since the assumed duty of supervision required that Westco's storeman actually be on the spot to supervise. 41 The appellants seek to answer these contentions on appeal at a number of levels. But at the most fundamental, it rests on the proposition that the duty of supervision at no point should be understood to have required by way of reasonable steps that at all times there be present one of Westco's storemen physically alongside the unloading operation irrespective of whether the driver sought that assistance. The storeman would be expected to have other duties such as driving the forklift truck. The duty was rather to be available if required by the driver of the delivery truck. The evidence was clear that the driver never requested help at any time. Had he done so it could be taken that help would have been forthcoming under any reasonable system of supervision. 42 Whatever Mr Rhind may have been understood to say in the passage earlier quoted (Black, 111-112), in particular in stating that "a storeman would have to be present, yes", this should not be understood as requiring by way of reasonable steps the constant presence of the storeman during the unloading, when no request had been made for that availability by the delivery driver. Indeed the question "So the storeman who was there supervising the unloading was instructed that if he saw the driver having a problem he was to assist …" to which the answer was "absolutely, yes" was revealing. The assistance was to be given "if" he saw the driver having a problem, not "when". The questions and answers that followed did not put unmistakeably to Mr Rhind that he needed to have a storeman present physically alongside the unloading operation at all times, whether requested or not. I do not consider that any duty of care, encompassing the taking of reasonable steps, required that heightened obligation; rather the obligation was to be available when requested. Otherwise, it would presuppose that a relatively small unloading operation would require two storemen present, the one to drive the forklift truck and the other to provide constant supervision of the unloading. That goes beyond what reasonable steps entailed. 43 The appellant also correctly emphasised that while Mr Lynch referred to the factors contributing to the accident including the slope and moisture on the floor, the following question and answer shows that he considered the cause of the accident, or at least the dominant cause, to be the (defective) skid-jack being substituted for his usual pallet-jack. "Q. There's no doubt that you considered the cause of you hurting your back to be the fact that you had been provided with a skid jack and not your usual pallet jack, do you agree with that? A. Yes." 44 It is fair to say that the evidence points persuasively if not conclusively to the inadequate and damaged skid-jack as the cause of the incident giving rise to Mr Lynch's injury. If Mr Lynch had his usual pallet-jack to manoeuvre the heavy pallets, even the moistened floor and slope would seem unlikely to have brought about the sideways movement of the pallet to the wall. But even if it had, it was for Mr Lynch to ask for help. 45 This conclusion is strengthened by the following factors identified in the appellant's submissions: "5. In respect of the loading area, the first question which his Honour should have asked himself was whether or not a reasonable occupier in Westco's position should have foreseen that the parking of the plaintiff's truck in that area involved exposing him to a real risk of injury in the unloading of the vehicle. 6. His Honour failed to and, if he had, he should have found that there was no evidence to properly support a finding that Westco knew or ought to have known that the use of that area created a risk or danger to a driver, including the Plaintiff, in the unloading of any vehicle parked there. In this respect: (a) the driveway area where the unloading took place was spacious and appropriate. The area is depicted in the photograph exhibit 2D12. It was said to have had a slight incline towards the warehouse (T19/3/04 – 45.35 Black AB 103.35) (which would be consistent with a fall for drainage). (b) the evidence of the Plaintiff himself was that he had delivered to those premises at least 25 times before the accident and had not reported any difficulties or dangers to his employer or to Westco (T18/3/04 – 50.15-.30 Black AB 50.15-.30); (c) the evidence of the Westco foreman was that it received up to about 20 deliveries per week which were unloaded in that area, involving 50-odd pallets (T19/3/04 @ 42 Black AB 100.40-.50), and that no complaint had been made to him about any problems or injuries caused in that unloading either by the drivers themselves, or by Westco employees who were directed to pass on such complaints or reports of injury to him (T19/3/94 @ 44.35 Black AB 43.55-44.25); (d) the plaintiff himself had not been injured during previous deliveries (J7.5 Red AB 37.5); (e) there was no evidence of any person at any time being injured in the course of unloading in that area before or after the accident, and more particularly, as a consequence of the area not being level; (f) Mr Rhind, when asked why he had not undertaken a risk assessment in relation to unloading at the premises at the time of the accident said " because we didn't see it being a risk factor because we didn't see any problems in unloading trucks out the back " (T19/3/04-47.20 Black AB 105.20). This evidence was not challenged." (pp2-3 of appellant's written submissions of 6 December 2005) 46 These matters go to both what may reasonably have been foreseen by Westco and to the specific question of whether a reasonable system of supervision would have required the constant presence of a Westco storeman doing the unloading, when no request for that was made. They afford a sufficient answer to what was said to be Westco's negligent failure to avert the self-evident danger to Mr Lynch after the heavy pallet had slipped to the wall when he started unsafely to exert himself to move it manually rather than seek help. A contractor, who was moreover not an employer of the driver, cannot be expected to offer assistance when none was sought in circumstances where constant surveillance would go well beyond what constituted reasonable steps. 47 I also agree with the appellant's observation in its written submissions that there was no evidence that: "(a) the Plaintiff had told the Westco storeman that he was having any difficulties in moving any pallet to the back of the truck; (b) the Plaintiff had told the Westco foreman that one of the pallets had come to rest against the side of the truck and that it was not able to be moved by use of the (broken) skid jack which had been provided by his employer; (c) the Plaintiff told the Westco storeman how he proposed to attempt to move the pallet to the back of the truck; (d) the Westco storeman had been told at any time by any driver of there being that type of problem; (e) that the Westco storeman saw the pallet in that location or saw that the Plaintiff was, or was about to, attempt to move the pallet in the way that he did; (f) the Plaintiff was not fully aware that the Westco storeman was available to provide assistance if requested to do so and that equipment such as the extended tines or long pole were available if required by him." (p4 of appellant's written submissions of 6 December 2005.) 48 I agree that the contrary proposition, that the storeman was obliged to provide assistance irrespective of whether he knew or became aware of there being any risk or problem associated with any activity undertaken by a driver, would be unworkable. It would involve close and constant surveillance for a person who was supposed to be driving a forklift and moving pallets from the vehicle to the store. It would also involve a duplication of roles wholly inconsistent with the division of labour between the two, namely the driver presenting the pallets for pickup by the forklift driver and the forklift driver taking them and delivering into the warehouse. 49 Westco was therefore not obliged to provide Mr Lynch with such assistance. Taking that into account and the other matters above, I do not, with respect, agree with the trial judge that Westco created a situation for unloading that foreseeably posed a risk of injury to Mr Lynch, and required steps on Westco's part to alleviate or remove that risk, more especially when no such assistance was ever sought. 50 The conclusion that Westco was not negligent vis a vis Mr Lynch makes it unnecessary to consider causation independently of liability in terms of whether the risk was foreseeable and whether reasonable steps were taken to reduce that risk. Nor is it necessary to consider either the apportionment of liability as between Westco and Hickey's or various matters going to whether the damages were excessive. OVERALL CONCLUSION and ORDERS 51 The appellant Westco was not liable in negligence to Mr Lynch so that the apportionment of 40% liability made by the trial judge should be set aside. 52 Accordingly I would propose the following orders: (1) The appeal be upheld. (2) The judgment and orders of Twigg ADCJ be set aside accordingly and in lieu thereof there be substituted a verdict for the appellant/first defendant/cross-defendant. (3) The first and second respondents to pay the appellant's costs of the proceedings below and of the appeal but grant to the first and second respondents a certificate under the Suitors' Fund Act, if otherwise qualified. 53 TOBIAS JA: I agree with Santow JA. ********** 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.