Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31
• Hearing dates: 11 February 2013
• Decision date: 26 February 2013
• Before: McColl JA (at [1]); Basten JA (at [2]); Barrett JA (at [3])

Decision

1.Grant to the second respondent leave to file its notice of cross-appeal.

2. Appeal allowed.

3. Cross-appeal allowed.

4. Set aside the judgment and orders of the District Court of 15 December 2011.

5. In lieu thereof order:

(a) Judgment for the first defendant against the plaintiff.

(b) Judgment for the second defendant against the plaintiff.

(c) That the plaintiff pay the costs of the first defendant and the second defendant.

6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal.

7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal.

8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - duty of care - workplace injury - employee of labour hire company lost footing on stairs when moving bulky office furniture at direction of host employer - content of duty of care - whether warning and instruction by host employer required - commonplace task - no unusual or unexpected risks - no special precautions required.
• Legislation Cited: Civil Liability Act 2002, s 5B; Workers Compensation Act 1987, Part 7
• Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2003) 239 CLR 420; Electric Power Transmission Pty Limited v Cuiuli [1961] HCA 3; (1961) 104 CLR 177; O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225; Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749; Seage v State of New South Wales [2008] NSWCA 328; TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1; Wilkinson v Law Courts Ltd [2001] NSWCA 196
• Category: Principal judgment
• Parties: Transpacific Industrial Solutions Pty Limited - Appellant; Kevin Ernest Phelps - First Respondent; Workpac Newcastle Pty Limited - Second Respondent
• Representation: J E Maconachie QC/R G Gambi - Appellant; B M J Toomey QC/G R Graham - First Respondent; P M Morris SC - Second Respondent; McCabe Terrill Lawyers Pty Ltd - Appellant; Philip Watson Pty Ltd - First Respondent; Moray & Agnew - Second Respondent
• File Number(s): 2012/11942

Decision under appeal

• Date of Decision: 2011-11-30 00:00:00
• Before: North DCJ
• File Number(s): 2010/354709

Judgment

1 McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes.

2 BASTEN JA: I agree with Barrett JA.

3 BARRETT JA: At the time relevant to this appeal, Kevin Ernest Phelps ("the plaintiff) was employed by a labour hire company, Workpac Newcastle Pty Ltd ("Workpac"), which had made his services available to Transpacific Industrial Solutions Pty Ltd ("Transpacific") which, in turn, had assigned him to duties as a labourer at the premises of OneSteel Ltd at Newcastle.

4 The plaintiff suffered injury to his back while working at the OneSteel site on 4 April 2008. He sued Transpacific and Workpac in the District Court alleging breach by each of a duty of care in negligence.

5 After a hearing in August 2011, North DCJ published reasons on 30 November 2011 in which he made findings in favour of the plaintiff and against Transpacific and Workpac. Orders were made on 15 December 2011 after receipt of further submissions on matters of calculation. Substantial damages were awarded to the plaintiff, with liability apportioned 75 per cent to Transpacific and 25 per cent to Workpac. Each defendant alleged contributory negligence but the primary judge rejected those defences.

6 Transpacific appeals from this decision (except as to absence of contributory negligence). It contends that the plaintiff's proceedings should have been dismissed, with judgment in favour of Transpacific and against the plaintiff. There is a subsidiary contention that, if liability was correctly found, the damages awarded were excessive.

7 Workpac (named as second respondent in Transpacific's notice of appeal, the plaintiff being named as first respondent) does not challenge the findings of the primary judge as to liability and apportionment but says that if Transpacific's appeal on liability is successful with respect to liability, there will be no foundation for the finding of breach of duty of care by Workpac, with the result that it too should is entitled to judgment against the plaintiff. Workpac has sought leave to file a notice of cross-appeal. I shall return to this matter.

The accident

8 On 4 April 2008, the plaintiff and two other workers (Mr McNally and a man referred to as "Tupou") were engaged in moving certain items of office furniture from one office building to another at the OneSteel site. Upon being brought to the second building, the furniture had to be taken up a staircase consisting of two flights, with a landing and right-angle turn half-way up. There were handrails on both sides of the staircase and a sloping ceiling over the lower flight of stairs.

9 One of the items to be moved was a large steel cabinet with concertina doors. The cabinet had been loaded on to a stair-climbing trolley that had three sets of wheels. It was held in place by a strap forming part of the trolley's mechanism. The plaintiff and Mr McNally set about manoeuvring the laden trolley up the staircase, with the plaintiff in front of (and therefore above) the trolley walking backwards to support and guide the load, while Mr McNally lifted and pushed from below. Mr McNally's evidence was that he "took pretty much all the weight from the bottom". The handles of the trolley were under the cabinet so that the plaintiff could not reach them. His only grip was on the smooth sides and the corners of the cabinet itself. His task at the top was, as he put it, "basically for stability and direction controlling the side of the cabinet".

10 The plaintiff and Mr McNally moved the laden trolley up the staircase step by step in this way, communicating with one another as they went to make sure that their actions were appropriately coordinated. Examples of the communication between them were given in the evidence of each. Mr McNally referred to a process by which he indicated from below when he was ready to move the trolley up to the next step and the plaintiff indicated when he was ready to receive that movement, after which Mr McNally lifted and pushed. Their common aim, clearly enough, was that the plaintiff should be told by Mr McNally when he was about to lift and push from below and that Mr McNally should not do so until informed by the plaintiff that he was ready.

11 Tupou was in attendance but, on Mr McNally's recollection, "was carrying something else behind" and was not actively engaged in moving the cabinet.

12 The plaintiff suffered injury when, after the trolley had negotiated the turn in the staircase (or was in the final stages of doing so) and its wheels were on the landing:

"[N]ext minute, I've lost my footing, I've gone down, and the cabinet came down on top of me."

13 The plaintiff had, by that point, climbed to the third or fourth step above the landing - or, according to one account he gave, was somewhat less than half-way up the second flight of stairs

14 After losing his footing, the plaintiff sat down heavily on the edge of a stair tread and the cabinet came to rest on his lower legs. Mr McNally squeezed past the cabinet, made his way to where the plaintiff was and lifted the cabinet off him. The plaintiff complained of pain in his back. Mr McNally and Tupou then completed the task of moving the cabinet to the upper floor. The plaintiff continued with the moving task for the rest of the day but carried only "lightweight boxes".

15 The back pain persisted and the plaintiff sought medical assistance a few days later.

Events before the accident

16 The plaintiff gave evidence that, on the day in question, Mr Eyres of Transpacific instructed Mr McNally and him to leave another job on which they were engaged and to move furniture. The plaintiff's evidence was that he complained because he had had to move furniture before and he "got irritated moving the furniture all the time from one building to another". He preferred to work in the open. He had made this clear to Mr Eyres previously. Mr McNally gave evidence that he had heard the plaintiff and Mr Eyres "having the odd go at each other about furniture moving" but he did not know "whether it was tongue in cheek or he [the plaintiff] was having a crack at him [Mr Eyres]". Mr McNally described the plaintiff as "always a fiery one; he called a spade a spade".

17 The plaintiff had been involved in furniture moving on several earlier occasions both at the OneSteel site and elsewhere. Work with a previous employer had included furniture moving. A statement of skills furnished by the plaintiff to another labour hire company had listed furniture removals as something in which he was experienced and skilled.

18 Despite the plaintiff's complaint, Mr Eyres said that the furniture had to be moved. He also said that whatever could be pulled apart should be pulled apart. The items of furniture to be moved were pointed out to the plaintiff and his co-workers by a OneSteel employee. The evidence does not suggest that Mr Eyres was familiar with the particular items.

19 Some of the items of furniture could be dismantled. Tables and desks, for example, were separated into pieces before being moved. The construction of the steel cabinet was such that it could not be conveniently dismantled. It had to be moved as a single unit.

20 The plaintiff gave evidence that, before he, Mr McNally and Tupou began the furniture-moving task, the three of them discussed hazards likely to be encountered. They did this because of a Transpacific requirement that a hazard assessment form be completed in advance of each work assignment. The document concerning the particular task was in fact written by Mr McNally after discussion among the three men but signed by all of them. The plaintiff accepted that the hazards identified in advance of the furniture-moving job were heavy lifting, twisting or twist and trip, bending and "pinch point" (jamming part of the body against a wall or the like). A section of the form asking "Is job safe to do?" was ticked, as was "Is work area safe for others?" The "job safety theme" recorded by the author in the document was twofold: to bend the knees and to work as a team.

21 The cabinet was brought to the destination building on the back of a utility truck. The stair-climbing trolley was used to move the cabinet to the truck at the point of loading. The cabinet was held fast on the trolley by the strap. Two persons transported the cabinet to the truck on the trolley, one ahead of the trolley and one behind. Three persons lifted the cabinet on to the truck after it had been released from the trolley. This manoeuvre was repeated in reverse when the truck was unloaded at the destination building.

The judge's decision on liability

22 Transpacific contends that the primary judge erred in concluding that it had been negligent. It takes issue with the judge's formulation of the applicable duty of care and also with the findings relevant to breach. Transpacific's contentions relate mainly to paragraphs [117] to [123] of his Honour's reasons, as follows:

"117. I accept the plaintiff's submission, that once they discovered that this cabinet could not be broken down that they should not have been required to move it in the manner in which they did. For instance, following the plaintiff's complaint Mr Eyers [sic] should have investigated what needed to be moved. Indeed the first defendant was already on notice as a result of the plaintiff's previous complaints and the injury to Mr Gibb that trying to manoeuvre a cabinet of this size in the cramped circumstances was simply dangerous. I accept this because the position in which the plaintiff found himself, despite his training, did not allow him to lift correctly. He could not keep his back straight. He had to bend to reach the bottom of the large cabinet and walk slowly backwards up a flight of stairs whist manoeuvring the cabinet. It was not just a straight walk. He had to negotiate the first flight, then the landing and manoeuvre the cabinet under the bulkhead to start up the second flight. It was at this stage that he slipped and was injured. Looking at the dimensions of the cabinet, the staircase area and the plaintiff it is plain that ergonomically the plaintiff was forced into a dangerous position.

118. Further I accept that it was the duty of the first defendant as his host employer to consider the situation, devise a suitable system and instruct his employees what they must do and to provide appropriate equipment (see General Cleaning Limited v Christmas (1953) AC 180).

119. I find that that did not happen here. Mr Eyers [sic] did not consider the precise situation as he did not assess whether it was safe to move a cabinet of this size in these circumstances. There was no evidence that Mr Eyers [sic] was overstretched on that day. I have accepted that the plaintiff complained. Nothing was done apart from telling the team, including the plaintiff, that they must continue the moving of the office furniture.

120. It is for the employer to create a safe 'system of work'. It is necessary to isolate the actual factors that caused the injuries to the plaintiff. I find that he was endeavouring to manhandle one end of a large cabinet with both hands on the bottom corners of the cabinet around a ninety-degree bend in a staircase. He had to support one end, which was the end furthest from the bottom, which was sitting on a three-wheeled trolley. It projected a considerable length beyond the trolley itself. He needed to manoeuvre it upward and sideways and try not to damage walls or the cabinet itself. He was travelling backwards in an awkward position and he lost his footing, twisted and fell and I find that the cabinet came down on top of him. In this regard I find that his injuries and disabilities are a direct result of this accident. Although he had been injured at an earlier time I accept that this had resolved and that his injuries and disabilities are a direct result of the accident on the stairway when the cabinet fell on him after he fell on the step striking his back.

121. The plaintiff's expert, Mr Fogg, although agreeing that a stair lifting machine was not suitable for this task did state at page 12 of his report that the job needed to be redesigned given the inherent difficulties of lifting the cumbersome cabinet in this confined space in this particular way. There was nothing done to ensure that the work required to be done by the plaintiff and his co-workers could be done safely.

122. It may be that carrying straps could have enabled the plaintiff to at least ascend the stairs face forward and not backwards. The evidence is not certain on this point. However, what is certain is that given the complaints, given the previous knowledge the first defendant had that injuries could occur in a furniture moving situation and given the dimensions of the cabinet and the area in which it had to be moved it is quite obvious that the plaintiff and his co-workers should not have been required to move this particular cabinet on that day in this particular way. I accept that there was not a proper system in place to move objects of this size. I accept the plaintiff's submission that they were muddling through and just trying to get the job done. The cabinet was not being moved until near the end of the shift when most other items had been moved.

123. I find in accordance with the facts surrounding this accident that the plaintiff was owed a duty of care to ensure a safe system of work by the first defendant and that they clearly breached this duty."

23 At [124] to [131] of his reasons, the judge made a series of findings some of which repeat findings or observations at [117] to [123]. The findings were as follows: the risk to which the plaintiff succumbed was foreseeable and Transpacific was aware of it; that awareness came from the earlier case of Mr Gibb (referred to at [117] and to be explained presently); there was not a proper system in place "to move objects of this size"; the workers were "muddling through and just trying to get the job done"; the movement was not controlled and there was a risk of slipping at every stage of the "awkward manoeuvre"; the risk was not insignificant because of the requirement that the plaintiff "try and carry and pull" the cabinet up two flights; the plaintiff was told to do the particular job despite his earlier complaints; there was a real probability of harm to the plaintiff if care were not taken, because of the size of the cabinet and the need for the plaintiff to bend and walk backwards, there was "clearly a potential for serious harm to occur"; and it would have been no great burden to Transpacific had it not pressed the plaintiff to continue with the task. Most of these matters had been referred to in the earlier discussion at [117] to [123].

Assessment

24 The first matter referred to here (at [117] and then again in [124] to [131]) is the plaintiff's complaint to Mr Eyres. The judge's statements imply that the complaint went to the particular task that was to be performed in relation to the particular items of furniture. That is not borne out by the evidence. Rather, it appears that the plaintiff simply did not like moving furniture. He preferred to work in the open. His complaint was not about the particular task or the particular furniture. It was a general grumble about having to move any furniture.

25 The judge also appears to have found at [117] that the plaintiff and his workmates, having decided that the cabinet could not be dismantled, were nevertheless still affirmatively required to move it; and that it was Mr Eyres who imposed the requirement. That is mentioned again at [124] to [131]. There is, however, nothing in the evidence to suggest that Mr Eyres was aware of the particular items to be moved or that they included the large cabinet; much less that he gave any direction specifically related to the cabinet. To the extent that Mr Eyers should have made himself aware of the items to be moved and the staircase up which they were to be manoeuvred, the question (addressed below) is ultimately whether a reasonable supervisor, possibly with information not known to Mr Eyers, would have taken any particular steps which were not taken to ameliorate any foreseeable risk of injury to the workers under his control.

26 The next matter referred to (at [117] and later at [124] to [131]) is "the injury to Mr Gibb". This requires explanation. There was in evidence a handwritten document produced by Transpacific but otherwise of unexplained provenance apparently recording details of a workplace injury sustained by a Mr Gibb when moving furniture at the OneSteel site in January 2007. To the extent that anything can usefully be gleaned from the document without the assistance of evidence given by a person involved in its preparation or the events it records, it is that Mr Gibb suffered a back injury through lifting heavy furniture.

27 The relevance apparently attached by the judge to the Gibb document emerges from the part of [117] (and also from subsequent observations) referring to the position which was, as it were, forced upon the plaintiff by circumstances "did not allow him to lift correctly". But, of course, the evidence was that the plaintiff was not lifting and was not taking any significant weight as he guided the cabinet to keep the trolley on course. His ability to lift and any restrictions on that ability were not relevant matters.

28 Paragraph [117] goes on to state that the plaintiff "slipped and was injured". That is consistent with the evidence, at least if one accepts that there is, for relevant purposes, no difference of substance between slipping and tripping and that the situation was one of lost footing, however described.

29 There follows the statement that "ergonomically the plaintiff was forced into a dangerous position", a theme repeated later. The word "ergonomically" was presumably intended to indicate that the "dangerous position" related to the working environment and its efficiency and safety. But the reason why the position that the plaintiff was "forced" to adopt was "dangerous" was not explained.

30 At [118] and [119], there was a finding that Transpacific was subject to a duty to "devise a suitable system and instruct his [sic] employees what they must do and to provide appropriate equipment"; that this was not done; and that Mr Eyres did not make an assessment whether it was safe to move a cabinet of the particular size in the particular circumstances. There is further reference to the plaintiff's complaint to Mr Eyres but again the complaint is portrayed as one about moving the particular items in the particular circumstances.

31 Paragraph [120] begins with a statement that the "employer" must "create a 'safe system of work'". There is then reference to the "actual factors that caused the injuries to the plaintiff". The weight of the cabinet and a need for the plaintiff to bear that weight are not among these. Indeed, the causative matters are confined to the configuration of the staircase and the need for the plaintiff to manoeuvre the upper end of the cabinet around the right-angle bend while walking backwards in an "awkward position", in the course of which "he lost his footing, twisted and fell".

32 There is then reference (at [121]) to the opinion evidence of an expert witness, Mr Fogg, an engineer with experience and qualifications in the field of safety precautions in construction and industrial settings. The judge stated that Mr Fogg had said, at page 12 of his report, that "the job needed to be redesigned given the inherent difficulties of lifting the cumbersome cabinet in this confined space in this particular way". This seems to refer to a passage on that page of the report which described as "concerning" the fact that Transpacific did not provide an electric stair-climber as a hazard control measure.

33 Mr Fogg was taken to this matter in cross-examination. It was pointed out to him that there was a sloping ceiling above the lower flight of stairs and that the moving of the cabinet up the stairs had to be accommodated within the limited headroom allowed by the ceiling. The cross examination continued:

"Q. . . . If any part of the height difference between the tread of a step and the ceiling immediately above it, whether it's angled or straight, is less than 2.2 metres, then the stair trolley climber that you refer to is not going to work in this situation.

A. In this situation, no."

34 It is thus clear that Mr Fogg's evidence was that an electric stair-climbing device could not have been used; and that the unavailability of one was immaterial.

35 At the beginning of [122] the judge engaged in speculation: both that the plaintiff could have walked forwards rather than backwards (somehow steadying and guiding the cabinet on the trolley then behind his back) and that carrying straps could have made this possible. There was no evidence on these matters.

36 His Honour returned, in the remainder of [122], to the complaints, the previous knowledge that injury could occur (presumably another reference to the lifting episode involving Gibb), the size of the cabinet and the confined area in which it had to be moved; and stated that "the plaintiff and his co-workers should not have been required to move this particular cabinet on that day in this particular way", there being no "proper system of work in place to move objects of this size".

37 The formulation of the applicable duty of care at [123] corresponds largely with that at [118]. That is a matter that will be considered presently. Subject to that, the following observations should be made regarding [117] to [123] of the judgment and the further findings at [124] to [131]:

1. The findings that the plaintiff had complained to Mr Eyres about having to move the particular items of furniture and that Mr Eyres had insisted that he do so are not supported by the evidence.

2. The activity in which the plaintiff was engaged (guiding the cabinet on the trolley from above while Mr McNally took the weight and pushed from below) made inapt any comparison or analogy with the case of Mr Gibb that apparently involved injury through heavy lifting.

3. If, as the judge found, the plaintiff was "forced" into a "dangerous position" where he could not "lift correctly", the compulsion that he occupy that position was irrelevant as he was not engaged in lifting and was not required to lift.

4. Resort to page 12 of Mr Fogg's report and its description of a need to redesign the job because of the confined space - which can only have been a reference to the section of the report recommending use of an electric stair-climber - was unwarranted because of Mr Fogg's acceptance in cross-examination that such a machine could not have been used within that confined space.

5. The possibility that injury would have been avoided had the plaintiff walked forwards rather than backwards and used carrying straps was purely speculative, there being no basis for any finding that walking forward with carrying straps was a method by which the required results could have been achieved.

6. The only aspect of the analysis that may be accepted as consistent with the evidence is the finding that the plaintiff slipped or tripped, lost his footing and fell.

38 This last aspect is elucidated not only by the evidence of the plaintiff and Mr McNally but also by the evidence of Mr Fogg. In the course of cross-examination, Mr Fogg stated his understanding of the way in which the plaintiff had come to fall, based on what the plaintiff had told him. The understanding was that the plaintiff was "not able to get his feet up on to the next step in time" as Mr McNally lifted and pushed the cabinet from below, with the result that there was "a backward trip" and the plaintiff fell.

39 It may be accepted, therefore, that the slip or trip occurred because of a combination of two factors: first, the plaintiff was walking up the stairs backwards and therefore had, at best, an imperfect view of precisely where the tread of the next step was; and, second, his rate of progress and the timing of each movement up to the next step were dictated to some extent by the timing of Mr McNally's pushing and manoeuvring from below - albeit that the two of them were speaking together with a view to coordinating their movements.

Duty and breach

40 Transpacific, as "host employer", owed the plaintiff a duty of care in negligence. Because the services of the plaintiff were effectively at the disposal of Transpacific for all purposes and Transpacific controlled the work the plaintiff was required to do and the circumstances and manner in which it was to be done, Transpacific owed to the plaintiff either a duty corresponding with that of an employer or a duty very similar to an employer's duty: TNT Australia Pty Ltd v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1. That being so, the duty could not have been higher or more onerous, from Transpacific's viewpoint, than that described by Hoeben J (as he then was) in Pritchard v Trius Constructions Pty Ltd [2011] NSWSC 749 at [45]:

"[The employer] had an obligation to exercise reasonable care for the safety of the plaintiff while he was carrying out the work allocated to him. That obligation included warning him of unusual or unexpected risks and instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury."

41 Any obligation of Transpacific to warn the plaintiff therefore could not have required more than warning of unusual or unexpected risks; and any obligation to instruct could not have required more than such instruction as might reasonably be thought to be required to secure the plaintiff from danger of injury.

42 The decision whether Transpacific breached the applicable duty of care fell to made in the context of s 5B of the Civil Liability Act 2002 which, as was recognised in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2003) 239 CLR 420 at [13], is "evidently directed to questions of breach of duty", even though it appears under the heading "Duty of care". Section 5B is in these terms:

"(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

43 The risk of harm to which the plaintiff succumbed was that of slipping or tripping while ascending stairs. It may be accepted that the risk of slipping or tripping is foreseeable and not insignificant on every occasion on which a person walks up or down a flight of stairs. As Heydon JA noted in Wilkinson v Law Courts Ltd [2001] NSWCA 196 at [32]: "Stairs are inherently, but obviously, dangerous". The foreseeability and significance of the risk are greater when a person is moving up stairs backwards while supporting and guiding an awkward load on a trolley and someone else pushing and lifting from below might cause the load to move forward before the person has a secure foothold on the next step.

44 That leaves, in the s 5B context, the question whether a reasonable person in Transpacific's position would have taken particular precautions against the risk of slipping or tripping in such circumstances.

45 The following evidence given by Mr Fogg in cross-examination is relevant to that question:

Q. . . . If the system was that Mr Phelps would call out when he was ready for the cabinet to come up the next step, you would assume, wouldn't you, that he would have his feet planted firmly on the step, ready to guide the trolley and the cabinet up the next one?

A. Yes.

Q. And so, as far as that system is concerned, if I can use that term, nothing unusual or unsafe about that, is there?

A. No, providing it's a controlled communication process.

Q. That's right. And if you assume that it was, no problem.

A. No problem.

A. And if you assume that, using the three wheeled trolley, correctly strapped with the cabinet on it, where one or two people down the bottom who, common sense would suggest, would take the bulk of the weight, and would be bending over and lifting the cabinet up the stair -

A. Correct.

Q. And if the system was, and Mr Phelps is guiding the cabinet as he is moving up the step, one at a time, that in itself is not an unsafe system, assuming, to use your words, it's a controlled method of doing it?

A. No.

Q. And if the system was that Mr Phelps would sing out to the person or persons underneath to bring it up the next step, if that was the controlled situation, no problem with that?

A. That's a reasonable process.

Q. And can we just assume at the moment that the stair climber trolley that you've referred to is really not applicable in this situation, for the reasons we've discussed, and we're using the three wheeled trolley, that in itself is not an unsafe system, as long as it's controlled and you do it properly?

A. Correct.

Q. You get it up, get it onto the landing, have it at an angle, someone from the bottom taking the bulk of the weight, assisting Mr Phelps to turn it around and take it up the next step, if it wasn't for the fact that he stumbled or missed his step a fairly safe system to get it up to the top wasn't it?

A. It was a reasonable system, yes.

Q. A reasonable system. Yes. And as far as obligations of Transpacific and/or WorkPac, the employer, I take it from your report that what you expected them to do is to identify various hazards in relation to any particular task that had to be done, is that right?

A. Correct, yep.

Q. And give instructions about how the work was to be done?

A. Correct.

Q. And if the three gentlemen, Mr Phelps at least who had moved furniture in the past, and Mr McNally who had moved furniture in the past, looked at it and identified whatever hazards they thought were appropriate, and chose this method of getting it up the stairs, you wouldn't be critical of anyone?

A. Provided they've gone through the process, correct.

Q. And the process is, as we discussed, the controlled method of getting it up the stairs - no issue?

A. No issue, no."

46 It may readily be accepted that the "system" described by the cross-examiner - particularly as it involved the workmen calling to one another to coordinate movements and the timing of movements - was that which both the plaintiff and Mr McNally described in their evidence. Thus, while the questions put to Mr Fogg were, in terms, hypothetical, they reflected the factual situation that emerged from the evidence.

47 Counsel for Transpacific placed particular emphasis on the joint judgment of Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ in O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225 and the following observation (at 230):

"The standard of care for an employee's safety is not a low one, but in a case such as this the question must be whether any suggested course that was omitted could really be regarded as reasonable."

48 O'Connor v Commissioner for Government Transport involved an experienced plumber who had been sent with other men to modify corrugated iron on an awning. The group had been provided with trestles and a plank which, if used, would have avoided the need to climb on to the awning. The plumber nevertheless chose not to use these aids and went on to the awning. Because timbers were rotten, the awning collapsed under the plumber's weight and he was killed. The presence of the rot was easily ascertainable by anyone making inspection. The High Court said (at 230):

"It was an ordinary question for a plumber to decide for himself how he would do the work. Obviously any experienced plumber would see that there must be a question whether a structure like the awning supported not by posts but by brackets was strong enough to bear his weight as he dismantled it. It was not

made for that purpose and neither the deceased nor any of his companions can be supposed to have thought that it had been specially tested to see if it was strong enough. It seems fanciful to treat the question as one to be gone into and decided by some superior officer, as distinguished from the workmen on the spot, and still more fanciful to suppose that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill or knowledge to decide and ordinarily treated as a matter for the man doing the job."

49 Transpacific says that there were no unusual or unexpected risks related to task of moving the cabinet up the staircase and thus no need for instruction. The nature of the task and the location in which it was to be performed, considered in the light of the equipment provided, meant that there was only one way of proceeding. The staircase was an ordinary staircase of a type with which everybody is familiar. There is no suggestion that the particular stairs presented any special or unusual risk of tripping or slipping. And the activity of moving furniture is a familiar one described by Macfarlan JA (with the concurrence of Tobias JA and James J) in Seage v State of New South Wales [2008] NSWCA 328 at [31] as "a commonplace activity likely to be encountered, just as frequently, if not more frequently, in the course of ordinary domestic life than in the workplace". Macfarlan JA continued (at [32] - [33]):

"It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scald themselves when pouring water which they have boiled for their tea or coffee? Or to be careful when ascending or descending steps? Or not to bump into furniture? Cf Phillis v Daly (1988) 15 NSWLR 65 at 74B-C; Jones v Bartlett [2000] HCA 56 ; (2000) 205 CLR 166 at 177 [24].

A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee's regular duties or activities to perform it, in my view falls into the same category."

50 Macfarlan JA referred to Electric Power Transmission Pty Limited v Cuiuli [1961] HCA 3; (1961) 104 CLR 177 which involved an employee who was required to chop wood for use in a fuel stove. The employee suffered injury when using a tomahawk to perform the task. Kitto J (with whom three other members of the Court agreed) said (at 180 - 181):

"When I am asked to hold that a jury may reasonably think it negligent of an employer not to give a grown man instructions in looking after himself while cutting pieces of bush timber with a tomahawk, I feel obliged to decline on the ground of common sense to do so."

Conclusion on Transpacific's liability

51 The difficulty for the plaintiff in this case is that the primary judge identified only one measure that Transpacific could and should have taken (and one instruction that it could and should have given), but the postulated course was, as a matter of common sense, impractical and of no utility; added to which there was nothing in the evidence to suggest that it would have eliminated or reduced the risk of slipping or tripping. I refer to the speculative reference to the plaintiff guiding a load behind his back while walking forwards using carrying straps.

52 The case was one of a commonplace activity. I venture to suggest that virtually every able bodied adult has, at some time, had the experience of cooperating with another person while the two of them transport a bulky item, with one person walking forwards and the other backwards and with one or more steps having to be negotiated as part of the process.

53 It was submitted by counsel for the plaintiff on appeal that Transpacific should have taken the precaution of using professional furniture removalists instead of the plaintiff and his co-workers. That possibility was not canvassed at trial or mentioned by the primary judge. There was no evidence that professional removalists would have proceeded in any different way; and, on the evidence, the plaintiff had experience as a furniture removalist.

54 Of course, if others had undertaken the task, the plaintiff would not have been injured, but that was not the issue. The real question was whether it was unreasonable to ask the plaintiff and his two colleagues to do the work, a proposition for which there was no direct support in the evidence, which was not adopted by the primary judge and which has not been established on appeal.

55 In the circumstances of this case, it was not established by the plaintiff that there were any precautions that, in terms of s 5B of the Civil Liability Act, a reasonable person in Transpacific's position would have taken against the risk of harm to which the plaintiff succumbed.

56 I would allow Transpacific's appeal on the issue of liability and order verdict and judgment for Transpacific on the plaintiff's claim.

Damages

57 If the appeal is disposed of in that way, there is no need to determine the aspect concerning assessment of damages. I nevertheless deal with it briefly.

58 The judge awarded damages for domestic assistance or attendant care against Transpacific - $27,216 for past domestic assistance and $147,960 for future domestic assistance. Transpacific contends that no damages should have been awarded under this head - essentially because the plaintiff had shown neither that assistance had been provided in the past nor that there was a reasonable need for it in the future.

59 The plaintiff says that it is not open to Transpacific to take this stance on appeal because it conceded before the judge that an award for domestic assistance was warranted. Transpacific's counsel said at the trial:

"Look it is reasonable for this gentleman to have paid care in respect of cleaning the house. I don't quibble with that your honour, it's probably unreasonable to expect his daughter continuously to do things."

60 At a later point, counsel submitted:

"And your Honour would allow maid and maintenance - which I think is the cleaning - of $1106.95 that's all for the past."

61 And later:

"So then in relation to the future, once he gets back into his own premises, your Honour might allow cleaning at $50 a week, lawn mowing at $30 a week, and Ms Hammond says it is reasonable, when and if he buys another car, to have it washed once a month."

62 Counsel then indicated that, on the basis he had stated, the total would be "$76,000 roughly."

63 Having examined the transcript, I am not satisfied that counsel for Transpacific conceded that there should be an award of damages for attendant care in the sum of $1106.95 for the past and "$76,000 roughly" for the future - or at all. Counsel was merely making submissions as to what the appropriate amounts would be if a case for damages for attendant care were made out by the plaintiff.

64 Transpacific has, however, not demonstrated error in this part of the judgment. The judge had before him evidence consistent with a finding of impairment of the plaintiff in the performance of ordinary domestic tasks. The evidence does not support the proposition advanced by Transpacific that the plaintiff was able to do everything that he needed to do domestically, albeit more slowly and laboriously. The expert evidence of the occupational therapist, Ms Hammond, and the rehabilitation specialist, Dr Bowers, supported the judge's findings of impairment; and the calculations underpinning the award his Honour made were supported by the expert evidence of Dr Bowers.

65 Had I been of the opinion that Transpacific's appeal on liability should be dismissed, I would have proposed that its appeal on damages also be dismissed.

Workpac

66 Workpac was the plaintiff's employer. His action against it in negligence in respect of the injury he suffered on 4 April 2008 was therefore an action to which Part 5 of the Workers Compensation Act 1987 applied.

67 Workpac does not actively embrace the proposition that it did not breach the undoubted duty of care owed by it to the plaintiff. But it says that if, as I consider to be the case, there was no breach of duty by Transpacific, then it follows as a corollary that there is no basis on which a finding of breach of duty by Workpac can stand.

68 That submission must be accepted. The duty of care owed by Workpac was either equal to or only slightly more onerous than that to which Transpacific was subject. The considerations leading to the conclusion of lack of breach of duty on Transpacific's part produce the same conclusion in relation to Workpac.

69 Workpac did not file any notice of cross-appeal in accordance with the rules but an application for leave to file out of time was heard concurrently with the hearing of the appeal. The supporting affidavits of the solicitor refer to certain administrative errors that led to that situation and, since no relevant prejudice to either of the other parties has been shown, I am of the opinion that the leave Workpac seeks should be granted and its cross-appeal should be allowed. The grant of leave is, however, an indulgence and Workpac should pay the costs of the leave application.

Disposition

70 I propose the following disposition:

1. Grant to the second respondent leave to file its notice of cross- appeal.

2. Appeal allowed.

3. Cross-appeal allowed.

4. Set aside the judgment and orders of the District Court of 15 December 2011.

5. In lieu thereof order:

(a) Judgment for the first defendant against the plaintiff.

(b) Judgment for the second defendant against the plaintiff.

(c) That the plaintiff pay the costs of the first defendant and the second defendant.

6. Order that the second respondent (cross-appellant) pay the costs of the other parties of the motion seeking leave to file a notice of cross-appeal.

7. Order that the first respondent pay the costs of the other parties of both the appeal and the cross-appeal.

8. Order that the first respondent, if qualified, have a certificate under the Suitors' Fund Act 1951.

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Decision last updated: 26 February 2013