New South Wales Court of Appeal CITATION: Gomes v Metroform Pty Limited [2005] NSWCA 171 HEARING DATE(S): 16 March 2005 JUDGMENT DATE: 18 May 2005 JUDGMENT OF: Beazley JA at 1; Santow JA at 2; Campbell AJA at 64 DECISION: (1) That this appeal be allowed and the judgment below set aside. ; (2) In lieu thereof, verdict and judgment for the appellant. ; (3) The parties to bring in Short Minutes of Order as to the amount of damages, in accordance with the trial judge's assessment of damages together with interest in accordance with the District Court Rules. ; (4) The respondent to pay the appellant's costs of the appeal and at first instance. CATCHWORDS: TORT - negligence of employer in failing to have a proper or adequate system of work for workplace injury to back suffered in handling and moving heavy frames when they became misaligned - circumstances included unwillingness to provide additional assistance and urgency of work - no known susceptibility to back injury - employer liable to employee. Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 Boyded Industries P/L v Canuto [2004] NSWCA 256 Czatyrko v Edith Cowan University [2005] HCA 14 (6 April 2005 unreported) McLean v Tedman (1984) 155 CLR 306 CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 Swain v Waverley Municipal Council (2005) ALJR 565 Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19 (21 April 2005, unreported) Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Agostino GOMES (Appellant) PARTIES: METROFORM PTY LIMITED (Respondent) FILE NUMBER(S): CA 41018/03 M I BOZIC, SC/ R L INGRAM (Appellant) COUNSEL: D A PRIESTLEY (Respondent) Taylor & Scott (Appellant) SOLICITORS: Hunt & Hunt (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 11726/01 LOWER COURT JUDICIAL OFFICER: Garling DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41018/03 DC 11726/01 BEAZLEY JA SANTOW JA CAMPBELL AJA 18 MAY 2005 Agostino GOMES v METROFORM PTY LIMITED Judgment 1 BEAZLEY JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION The appellant, Agostino Gomes, unsuccessfully sued his employer Metroform Pty Limited, the respondent, for damages for workplace injury. They were suffered when the appellant was moving misaligned metal formwork frames in course of them being lifted by crane, for the purpose of taking them offsite. The central question in this appeal is whether, contrary to the finding of the trial judge Garling DCJ, the respondent employer was negligent in failing to have a proper or adequate system for the handling and movement of these frames and, or alternatively, whether there was a duty to warn, in the circumstances, or provide training. 3 The trial judge concluded that there was no liability in negligence, notwithstanding the absence of any system for handling and movement of frames. This was essentially on the basis that the trial judge was not satisfied that the defendant would have foreseen that the straightening of the bundles of frames would have been so dangerous that it would require the provision of a steel frame to put them in to move them, and that there was no evidence of knowledge on the part of the employer of any problem from frames having to be put back into place when they became misaligned in the course of lifting. 4 The appellant's case was that not only was there lacking any proper or adequate system for handling and movement of frames or any warning or training in relation to manoeuvring them manually, but that, having earlier unsuccessfully sought additional help because of the speed with which the job had to be done, he felt constrained from asking for help. The respondent employer emphasised that Mr Gomes' evidence was that he did not anticipate any difficulty in moving the frames, was highly experienced over 18 years and the misalignment was itself a rare occurrence. 5 A further ground of appeal was that the trial judge erred in not putting weight, or sufficient weight, on the report of Mr Tozer, consulting engineer, dated 24 May 2002. 6 There is a further ground of appeal that the trial judge erred in finding that Mr Gomes was guilty of contributory negligence to the extent of 15%, a finding that was made only in the alternative if, contrary to the trial judge's primary finding, the respondent employer was negligent. 7 Garling DCJ, helpfully, made a further alternative finding as to the appropriate award of damages should an appeal be upheld. The total of the amounts he referred to separately in his judgment is $148,029.50. The Notice of Appeal sought the entry of judgment and verdict for the plaintiff without any reference to quantum. However, in the written submissions the appellant sought judgment "in accordance with his Honour's assessment of damages." The respondent did not oppose that result should the appeal succeed. SALIENT FACTS 8 What follows is an uncontroversial summation of the relevant events and background. It requires to be read with the specific and more detailed findings of fact by the trial judge which follow. 9 The appellant was 46 years old at the time of the accident. He had worked in this country for 18 to 19 years, for the same employer. He was a formwork carpenter. 10 On 14 September 2000, Mr Agostino Gomes sustained injury in the course of his employment with the respondent, Metroform Pty Ltd ("Metroform'", then known as Fyna Formwork. 11 He started work at around 7am. Early on he unsuccessfully sought assistance, in circumstances elaborated under the heading "key findings of fact". 12 The injury at about 10.30am occurred while he was assisting with the removal of bundles of metal formwork frames, which were being readied for transportation from the site. They had been stacked ready for lifting by crane. 13 The system for removing the formwork frames was as follows: (a) The frames were being stripped from the site after the decking or floor had been poured. Each frames was about 2 x 1.2 metres in dimension (T, 4O-Q), and each weighed about 25-30kg (T, 15I); (b) The frames were bundled into neat stacks of twenty frames (one on top of the other) on the lower-ground floor (T, 6S-T, 7M), that being the maximum load a crane could bear (T, 7C-D); (c) Each stack was about 1½ metres high (T, 8W); (d) A dogman would affix chains around the stack, and each bundle was then raised by crane through a penetration in the floor to the ground-level, where another dogman would remove the chains (T, 6S-X, 7H-I); (e) Mr Gomes was to add another 5 frames to the top of the stack and then affix a thin aluminium band around the bundle of twenty-five (using a machine) (T, 7L-T); (f) The dogman on the ground level would then affix chains so that another crane could take the bundle away to load it onto a truck for removal from the site (T, 7W-X). 14 The injury occurred in the following way. As the crane on the lower-ground level was raising the load through the floor penetration, the load struck the concrete, causing some rows of frames in the stack (being some 5 to 6 frames) to twist out of alignment (T, 8D-H). 15 After the crane had deposited the skewed bundle, Mr Gomes tried to realign the stack, by grasping the lowest misaligned frame (which was 5 to 6 from the top) in order to pull it and those on top of it back into alignment. It was not possible to move them individually (T, 8I-R). As he pulled, Mr Gomes felt a sharp pain in the middle of his back, radiating to his neck and right arm, and then numbness in his lower body (T, 9D-O). He reported the incident to his supervisor, Mr Aracic, and was sent to the doctor. 16 Although Mr Gomes continues to work as a formwork carpenter, he continues to have pain to his neck, arm, leg and back if he performs heavy work (T, 12G-L). First Instance Judgment 17 In the course of his judgment the trial judge made the following specific findings of fact, and of law; where necessary I interpolate some comment. Key findings of fact 18 Mr Gomes was a very experienced formwork carpenter (Red, 11N), and had carried out heavy lifting, putting formwork in place and in bundles over a period of 18 years (Red, 13U-W). 19 He had not had any formal training in the lifting or moving of frames (Red, 12X). 20 Mr Gomes was assisting as follows with the removal from site of bundles of formwork frames. Frames were stacked in bundles of 20 on the floor below where Mr Gomes was working, and were lifted by crane through an opening in the floor, where they were then unloaded (Red, 11T-12F). 21 The bundle of frames was very heavy requiring a crane to move it and each frame weighed about 25kg (Red, 11U-V, 15O-P). I interpolate here that the expert Mr Tozer, in his report stated that "[T]ypically, these prefabricated steel tube frames have a weight of about 35 kg each" (Blue, 23). Mr Gomes in examination in chief said that the approximate weight of each frame was "25 to 30 kilos, it depends" (Black, T, 5.18). 22 It was Mr Gomes' job to ensure that frames were neatly stacked for transportation, which involved pushing and pulling them into position if they were out of position (Red, 15P-R). 23 Mr Gomes had straightened formwork like this before. He said he had no difficulty in pushing or pulling the frames into position, admitting they were often easy to move and it was rare for something like this to have happened (Red, 13K-O). 24 Mr Gomes felt sharp pain to his lower back, right buttock and numbness in his lower body when he was pulling at a frame 5 or 6 from the top [in order to straighten] (Red, 12S-W). 25 On the day of the accident there were a number of employees of the respondent on-site, but none were working with Mr Gomes (Red, 12I-K). There were two dogmen working with the crane, one on the floor below and one on Mr Gomes' floor, supervising the lift and carrying out the lifting (Red, 12C-F). 26 Mr Gomes asked for assistance. This was not for the purpose of straightening the pile, but because of the speed at which the job had to be done: (Red, 13H-J). Although there was dispute as to whether he asked for assistance, Mr Gomes' evidence was accepted by the trial judge, who described him as a straightforward witness (Red, 13Q-S). 27 There was no system in place for the straightening of the frames, and no evidence of any system of training (Red, 15Y-16C). I would point out that this was an important finding, given, as I explain, insufficient weight by the trial judge. Key findings of Law 28 The defendant was not negligent (Red, 18O). 29 There was no duty to warn the plaintiff of what might happen if he pulled or pushed the frames; that is, that he should seek assistance if the frames did not move easily into place (Red, 16G-H). Mr Gomes was a very experienced employee and very experienced in heavy work (Red, 16K). He constantly did this type of work with other employees, and knew exactly what was involved and did not need warning (Red, 17Y-18D). It is not apparent how training, either when he first started on the job or at any subsequent time could have been given or would have been necessary in the task he was carrying out. Nonetheless, the trial judge did acknowledge that "[P]erhaps he would not have pulled the frame without help". However, Mr Gomes had had little problem in the past and would usually do this job by himself (Red, 16C-D, L-N). 30 The employer did not fail to provide Mr Gomes with proper assistance (either human or mechanical) in doing this job. Mr Gomes asked for assistance earlier in the day, but his request was for general assistance because of the speed at which he was required to work (Red, 16S-V). Mr Gomes did not seek assistance from his employer because the frames were too heavy. I interpolate that the trial judge failed to make mention of the reasons he gave in evidence for not again asking for help; "if I don't do it they call me a bludger" (Black T, 21.31): "I asked and I wasn't given [sic] and I couldn't do anything about it" (Black T, 21.56). And finally, "I wasn't always going to ask – to be asking all the time for help, otherwise they'd get angry with me" (Black T, 23.40). I consider those reasons were significant, bearing directly on the safety of the employer's system of work. 31 The trial judge concluded, as regards what the employer "would have foreseen" concerning the danger of moving the bundles of frames by hand: "I do not believe the defendant would have foreseen that the straightening of these bundles of frames would have been so dangerous that it would require the provision of a frame to put them in to move them" (Red, 17P-R). I interpolate that, significantly, this finding is not directed, as it should have been, to what should have reasonably been foreseen in the circumstances. Rather it was directed to the defendant's actual foresight. 32 Mr Gomes had not had any trouble in the past, and had been able to straighten the frames (Red, 17L-O). Although they were of a large weight, he often did it without any problem (Red, 18G-I). It was the normal lifting job that was often done (Red, 17U). While the defendant would have known that from time to time frames had to be put back in place, there was no evidence of knowledge of any problem in doing it (Red, 18E-F). 33 There was a proper system for handling and movement of frames (Red, 17W-X). But earlier the trial judge concluded that "[T]here was no system in place for the straightening of the frames and I had no evidence of any system of training" (Red, 15Z-16B). 34 I would interpolate here two comments. First, the two findings are contradictory – there could not be both a proper system and no system. Second, in actuality, as the evidence makes clear, there was no proper system. Such system as there was for handling and moving the frames did not deal with their misalignment nor did it provide for any warning against pulling or pushing the heavy frames manually where there was any risk of back injury. 35 If a verdict for Mr Gomes had been found, there would have been a finding of contributory negligence (albeit not in a large amount) on the basis that Mr Gomes was the one in charge of what he was doing (Red, 19I-N). Mr Gomes knew what was happening and could have asked for assistance, but elected to do the job the way he did: (Red, 19K-L). I interpolate that the respondent submits that this finding would be reflected in a deduction for contributory negligence in the order of 15%. GROUNDS OF APPEAL 36 These can be grouped under the relevant issues as follows. ISSUE 1: warning & training Ground 1 The judge erred in finding that the employer did not have to warn Mr Gomes of what might happen if he pulled or pushed the frames; Ground 6 The judge erred in finding that training that could have been given or would have been given was not necessary in the task that Mr Gomes was carrying out. ISSUE 2: Foreseeability of injury Ground 2 The judge erred in not putting weight on or sufficient weight on the report of Mr Tozer, a consulting engineer, dated 24 May 2002. Ground 3 The judge erred in finding that Metroform should not have foreseen that the straightening of the bundle of frames would have been so dangerous that it would require the provision of a steel frame to put them in to move them; Ground 4 The judge erred in applying the test of being "so dangerous" in a determination of foreseeability. Ground 5 The judge erred in [not] finding that Mr Gomes should have been provided with additional physical assistance. Ground 7 The judge erred in finding that there was a proper or adequate system for the handling and movement of frames. ISSUE 3: Contributory negligence Ground 8 The judge erred in finding that Mr Gomes was guilty of contributory negligence. DISPOSITION OF APPEAL 37 It is clear on the evidence and on the trial judge's own findings that: (a) there was no system in place to deal with misalignments other than manual effort by the one worker allocated to that task, (b) that occurrences of this kind were rare or unusual, but not so rare or unusual that they could not be reasonably foreseen, (c) there was no training programme or warning as to the dangers of pulling or pushing misaligned frames, (d) the events of that morning when the accident occurred reinforced the clear impression from the evidence that the employer would not have encouraged assistance from a second person to move a misaligned set of frames, despite the fact that their weight was well beyond a safe weight for one person to move on his own, (e) this was a matter simply of commonsense when one looks at the weight of the frames at somewhere between 25 and 35 kgs and the fact that, as happened here, up to five or six may have had to be moved, in circumstances where there was no mechanical device to handle the movement of frames of the kind generally described by Tozer & Associates though without supporting detail. 38 There is nothing novel about the duty of an employer in these circumstances. It has most recently been re-stated in Andar Transport Pty Ltd v Brambles Ltd (2004) 78 ALJR 907 in the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ at [54]. There, as it happens, somewhat similarly to here, the court was dealing with a system of working consisting of the loading and unloading, there of linen trolleys from a delivery truck: "As a result, Andar was obliged to take reasonable steps to ensure that the loading and unloading was carried out in a safe manner. That obligation in turn required Andar to develop, and maintain, a methodology or system which would achieve that result. As a sub-set of the general common law duty of care outlined earlier in these reasons, the obligation is non-delegable. This court's decision in Nicol demonstrates that an employer may be liable for breach of the duty notwithstanding that the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system.79" 79 Nicol (1987) 163 CLR 611 at 618. See also Munkman on Employer's Liability (13th ed, 2001) at p140. However, in so referring to this case and the two more recent High Court cases which follow, I do not draw on them so far as they concern considerations relating to breach being questions of fact, recognising that in that context previous cases carry no precedential value; Swain v Waverley Municipal Council (2005) ALJR 565 at [140] per Gummow J. 39 So similarly Czatyrko v Edith Cowan University [2005] HCA 14 (6 April 2005 unreported): [3] "…the appellant and another employee, Mr Fendick, were required to load 30 or so boxes on to a truck for removal to another campus. The boxes contained books and documents. The truck was parked on a grassy area outside a building. It was fitted with an enclosed tray, to which was attached an unenclosed hydraulic lifting platform. The platform was about 1.5m deep and its width was approximately the same as that of the truck. The platform was powered by the battery in the truck and was operated by a switch. It emitted a loud noise when it was being raised and a "clanging" sound when it "hit the top" (to bring it level with the tray of the truck). No sound was emitted however when it was being lowered. [4] The appellant and Mr Fendick each had a trolley. Together, they collected boxes and loaded them on to the truck, both using the platform. A storeman gave them a message that their supervisor wanted them to get on with the job more quickly. Mr Fendick suggested to the appellant that the appellant should work on the truck while Mr Fendick brought the remaining boxes to him. The appellant agreed. Mr Fendick, who was operating the platform control, then collected some boxes on his trolley, took them up to the appellant on the platform, unloaded them, and went down again on the platform to collect more boxes. The appellant remained on the truck re-organizing the boxes that were already loaded in order to make the best use of the available space, which was almost three-quarters filled. Mr Fendick brought another load of boxes up on the platform. He placed them on the truck. By this time, there was little room left on the truck. Mr Fendick, without saying anything further to the appellant, went down again on the platform. When the platform was about two-thirds of the way down, and still descending, the appellant, who did not realize it had moved, and who was still re-organizing the boxes on the truck, stepped backwards. If the platform had still been there, he would have been secure. Instead, he stepped into space, and fell heavily." 40 The Court in a joint judgment of Gleeson CJ and McHugh, Hayne, Callinan and Heydon JJ, stated the applicable principles and their application at [12]-[13], quoted below (omitting footnotes): "[12] … An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. [13] The appellant's reliance on these principles is well founded. This case is in our opinion a tolerably clear one. This is not simply a case of a failure to warn. It is a case of a failure to devise and implement a safe system of work, or to provide the appellant with proper and sufficient equipment to enable him to carry out his work safely. The risk that the appellant would attempt to step backwards on to the platform in the belief that it was raised, without checking whether this was the case, was plainly foreseeable. There was no system in place to guard against it. The risk could have been readily obviated by the respondent by the taking of simple measures. The measures included the fitting of a warning "beeper" or the introduction of a system for the giving of an oral warning as and when the platform was being lowered. In light of its failure to implement such or like measures, the respondent was in breach of its duty to take reasonable care to prevent the risk of injury to the appellant. …" 41 The High Court rejected any finding of contributory negligence absent, there as here, of any direction or warning from the employer. Moreover, the circumstances there as here presented a fertile field for inadvertence, more especially given the pressure to complete the job promptly. Thus at [18] (omitting footnotes): "[18] In the present case, the appellant did no doubt omit to take a simple precaution of looking to see whether the platform was raised before stepping on to it, and this omission was a cause of his injuries. But in acting as he did, the appellant did not disobey any direction or warning from the respondent. No directions or warnings of any kind were given by the respondent in relation to the use of the platform. Furthermore, both the appellant and Mr Fendick were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than "mere inadvertence, inattention or misjudgment". It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made. …" 42 The situation here is distinguishable from that in Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19 (21 April 2005, unreported). In that case the facts were as follows: 43 In August 1999, Ms Thompson injured her back while moving industrial waste bins to deliver bread to the Woolworths supermarket in Stanthorpe. She had already hurt her back in a work related incident a week or two earlier. Ms Thompson and her husband conducted a bread delivery service around Stanthorpe under a contract with Cobbity Farm Bakeries. She made daily early morning deliveries to Woolworths, at a loading dock where a storeman checked goods in. Sometimes the storeman was away from the dock and had to be summoned by a buzzer, but drivers at times had to wait for up to 15 minutes for him to return. Industrial waste bins were frequently left in front of the loading dock by garbage collectors rather than returned to their designated space. Instead of waiting for supermarket employees to shift them, drivers, including Ms Thompson, a small woman, moved them themselves. Her husband often deviated from his own rounds to help her unload and he would shift the bins if they were still in the way. Ms Thompson was moving the bins herself on the day in question when she hurt her back. Her husband arrived and moved the bins and they unloaded the bread on to the dock. 44 In the Queensland District Court, Ms Thompson sued Woolworths for damages for negligence, arguing that Woolworths exhibited a systemic failure to exercise reasonable care for her safety. An expert witness suggested Woolworths should either have eliminated the problem by providing alternative truck access through a car park or introduced procedural controls to ensure that its employees relocated the empty bins. Judge Nicholas Samios held that moving the bins was the responsibility of Woolworths rather than the drivers and that employees were aware that moving the bins was risky for someone of Ms Thompson's size and strength. She was awarded damages of $157,991.89. The Queensland Court of Appeal, by majority, allowed an appeal. The dissenting judge, Justice Philip McMurdo, would have upheld the finding of negligence but reduced the damages by one-third for contributory negligence. Ms Thompson appealed to the High Court. 45 The High Court unanimously allowed the appeal, upheld Justice McMurdo's judgment, and ordered that damages be reduced to $105,327.92. The Court held that since Ms Thompson was required to conform to a delivery system established by Woolworths, Woolworths' obligation to exercise reasonable care for the safety of people who came on to its premises extended to ensuring that its system did not expose people making deliveries to unreasonable risk of injury. Contributory negligence arose through Ms Thompson's awareness of the risk of moving the bins herself, especially when she knew that she had already injured her back. 46 By contrast, in the present case there was no prior back injury, nor known predisposition on the part of Mr Gomes as would justify a finding of contributory negligence. 47 That the employee Mr Gomes, experienced as he was, failed to appreciate the danger of pulling the frames without help, is no exculpation for the employer. The duty is non-delegable. 48 Indeed the very circumstances of this accident highlight the danger for the appellant. He was working under conditions of urgency and time pressure, he had been rebuffed when he sought help to cope with those conditions and he had no reason to believe that a further request would be met with the assistance he clearly needed. Had he had that assistance, the employee's evidence was that "if there was two of us it wouldn't have happened"; Black T, 11.4. It is not to the point that the evidence as to mechanical equipment from the expert's report was not given in any detail including matters relevant to what would be reasonable in terms of cost. The simple answer is that a second employee could have been made available ad hoc and should have been. 49 Turning to the reasoning of the trial judge, there is evidence of some confusion between foreseeability and what has been compendiously referred to as the Shirt calculus (Wyong Shire Council v Shirt (1980) 146 CLR 40). The passage is at Red, 17: "I do not believe that the defendant would have foreseen that the straightening of these bundles of frames would have been so dangerous that it would require the provision of a frame to put them in to move them. It seems from the plaintiff's accident that there had been few problems and he didn't expect there to be one. It was just the normal lifting job that was often done." [emphasis added] 50 The trial judge in an ensuing passage states that he believes there was a proper system and that a warning was not needed. Neither proposition is in my respectful opinion, supported by the evidence. To quote the trial judge again: "The additional physical and mechanical help which should have been provided I have covered. The design of a proper system for handling and movement of frames, I believe there was a proper system and as to the warning of the plaintiff of the danger of moving something, he seems to have been the man who constantly did this type of work with other employees. He knew exactly what was involved and I don't see that he needed to be warned." 51 Finally, the trial judge concludes, again in my respectful opinion, wrongly, that "whilst the defendant would have known that from time to time, frames had to be put back into place, there was no evidence of knowledge of any problem in doing it" (Red, 18). 52 Taking each of these passages in turn, in the first instance, the test is not whether the defendant in fact foresaw that the straightening of these bundles of frames would lead to the injury that occurred. Nor is the test whether the straightening "would have been so dangerous" that it would require the provision of a frame to put them in to move them. The test of foreseeability is what is reasonably foreseeable in an objective sense. That test is not predicated on actual foresight or on the level of damage, though a trivial risk would on the Shirt calculus be a factor to be weighed in determining what was reasonable to avert it. 53 Nor in terms of reasonable foreseeability is more required to be foreseeable than a possibility which "may sometimes involve a concatenation of events of a highly unexpected kind which could not be precisely foreseen even as a possibility"; Glass, McHugh and Douglas in "The Liability of Employees in Damages for Personal Injury" (1979) at 28. 54 That this was just "the normal lifting job that was often done" is no answer either, nor is it the case that one should assume a warning would go unheeded. I would here respectfully adopt what was said by Beazley JA in Boyded Industries P/L v Canuto [2004] NSWCA 256 at [9] to [12]. There Her Honour, though in minority in the result, reviews a number of the High Court authorities on the employer's duty of care, including the duty to take account of carelessness or inadvertence. She commences with McLean v Tedman (1984) 155 CLR 306 at 312 which Her Honour quotes in the following passage of her judgment: "Many statements are to be found in the cases which give emphasis that in discharging his duty to take reasonable care to avoid injury to his employee an employer is bound to have regard to any risk of injury that may occur by reason of an employee's inadvertence, inattention or misjudgment in performing his allotted task. Thus, in Sungravure Pty. Ltd. v. Meani (1964) 110 C.L.R. 24 at p. 36, Windeyer J. said: 'A safe system of work is one that is safe for an average workman taking reasonable care for his own safety.' But his Honour immediately followed that comment with the observation: 'It is not a system which is safe only for persons of superior skill whose attention never wanders.' More recently, in Ferraloro v. Preston Timber Pty. Ltd. (1982) 56 A.L.J.R. 872, at p.873, the Court in its unanimous judgment said: 'The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the 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'" Their Honours continued at 312-313: "If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then this is a factor which the employer must take into account. That this is so was implicitly acknowledged by Taylor J in Smith v. Broken Hill Pty. Co. Ltd. (1957) 97 C.L.R. 337, at p.343, when he referred to an employer contemplating 'the possibility of thoughtlessness or inadvertence – or to use what is, perhaps, a strong word, carelessness'." 55 Their Honours' emphasised at p.313 that: "… the employer's obligation is not merely to provide a safe system of work: it is an obligation to establish, maintain and enforce such a system … in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands." 56 The final statement earlier quoted from the trial judge, to the effect that the employer would have known frames had to be put back into place but there was no evidence of knowledge of any problem doing it, with respect, overlooks an important fact. It was that there had been incidents of misalignment calling for manual intervention, albeit rare. An employer taking proper care should therefore have been aware that frames become misaligned in the way which occurred here. The employer was required to make sure there was a system of work in place whereby the employer fulfilled its obligation to exercise reasonable care for the safety of its employees. That was clearly lacking. There was no proper system exhibiting reasonable care for the safety of employees having to cope with the straightening of misaligned heavy frames, a situation which was reasonably foreseeable, though its occurrence was relatively infrequent. 57 I finally turn to the expert's report. I consider that the conclusion earlier reached of the employer being negligent in failing to make available an employee when needed for the occasional heavy pulling or pushing does not depend upon expert evidence of the kind in Mr Tozer's report. Mr Tozer was not required to give evidence though on the appeal, issue was taken by the respondent with a number of aspects of that report. They included first that the report was based on the assumption that the prefabricated steel tube frames had a weight of about 35 kg whereas the evidence of the employee was of a lesser weight of around 25-30 kilos (Black T, 5.16). I consider that difference to be trivial particularly when taken against the likely weight of five or six frames placed on top of each other. 58 Then an attack was made on the report for the way in which it dealt with the calculation of a maximum pushing force of 50 kgf. As I understand this attack, it was on the basis that the assumption made was of the employee having to push the frames at the middle of the bundle which would mean at around the tenth or eleventh frame from a total of 20, producing a total weight of 350 kg, as against the actuality of his pushing frames around five or six from the top. 59 While this may cast some question over the inclusion of the maximum pushing force, the respondent not only did not require the expert for cross-examination, but made no mention of these matters in address. Nor did the respondent object to the report going in. It is not only too late to raise these matters now but beside the point. 60 Finally I should state that I do not consider this is a case where the employer enjoys immunity from the duty to provide a safe system of work, by reason of the task being so simple and mundane that it should have been self-evident to the employee what he needed to do to avoid the risk; compare Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 per Heydon JA at [74] and earlier at [63]. While moving the frames into alignment is a relatively simple operation, like the loading and unloading of linen trolleys in Andar Transport (supra), it is not so simple that one is dealing with "isolated operations of no complexity outside the normal system or simple uncomplicated operations within it"; Glass, McHugh and Douglas (supra) at 45-6. Contributory negligence 61 I should briefly deal with contributory negligence. 62 In my view, the failure by the employer to provide a safe system of work was not in doubt. The employee's failure was perfectly explicable by the speed at which he was expected to carry out his task and with the kind of inattention or misjudgement that stems from absence of warning and the failure to institute a proper system of work which fulfilled the obligation to exercise reasonable care for the safety of employees. Accordingly I would not attribute contributory negligence to the appellant. I consider the degree of inadvertence, inattention or misjudgement here exhibited in such circumstances of work pressure was wholly understandable, more especially given the appellant's earlier rebuff when seeking help. Here, as in Thomson (supra), the question was whether the respondent had a proper system in place; in Thomson this was a delivery system, here a system for handling and movement of frames. There was in my judgment no such system satisfying the requirement for reasonable care towards employees so engaged. One needs to remember, as in Thomson at [38] "the appellant and other delivery drivers [here "unloaders"] had no responsibility to design, and no power to implement, the delivery system [handling system] operating on the respondent's premises". In those circumstances, with no prior known history of back injury, contributory negligence does not enter into the matter. OVERALL CONCLUSION AND ORDERS 63 I consider that the respondent was negligent in failing to provide a system of work satisfying the respondent's obligation as an employer and that there was no contributory negligence on the part of the appellant employee. I note that the total of the individual items of damages referred to but not totalled by Garling DCJ (Judgment Red, 18X-19H) aggregates $148,029.50 (see [6] above). Further I note that Garling DCJ refers to non-economic loss at 27% of a worst case which, accepting $244,250 (Ingram Black, 42J) as the relevant maximum figure, produces $65,947.50. Accordingly, I propose the following orders: (1) That this appeal be allowed and the judgment below set aside. (2) In lieu thereof, verdict and judgment for the appellant. (3) The parties to bring in Short Minutes of Order as to the amount of damages, in accordance with the trial judge's assessment of damages together with interest in accordance with the District Court Rules. (4) The respondent to pay the appellant's costs of the appeal and at first instance but to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. 64 M W CAMPBELL AJA: 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. 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