Elizabeth Kociolek v Alexandros Investments Pty Limited Sca [1991] ACTSC 47 (17 July 1991)

SUPREME COURT OF THE ACT

ELIZABETH KOCIOLEK v. ALEXANDROS INVESTMENTS PTY LIMITED
S.C.A. No. 25 of 1991
Appeal from Magistrates Court

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Appeal from Magistrates Court - Personal injury - Assessment of Damages - Neck and shoulder pain - Injury to cervical spine - Reduced employment capacity - No new question of principle.

Magistrates Court (Civil Jurisdiction) Act 1982

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Selley Chemical Company Pty Limited v Graham (ACTSC; Miles C.J.; 8/10/86; unreported)

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Turner v State of South Australia (1982) 42 ALR 669

Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619

McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306

Bankstown Foundry Pty Limtied v Braistina [1986] HCA 20; (1986) 160 CLR 301

HEARING

CANBERRA
17:7:1991

Counsel for the Appellant: Mr R. Crowe

Instructing solicitors: Messrs Higgins Solicitors

Counsel for the Respondent: Mr S. Wilcox

Instructing solicitors: Messrs Colquhoun Murphy

ORDER

The appeal be upheld.

There be judgment for the appellant in the sum of $40,992.21.

DECISION

This is an appeal pursuant to the Magistrates Court (Civil Jurisdiction) Act 1982. It is a rehearing. This Court will give due weight to the findings of the Court below, but is obliged to give effect to its own view of the facts save insofar as they do not relate to the credit of witnesses (see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Selley Chemical Company Pty Limited v Graham; (ACTSC; Miles C.J.; 8/10/86; unreported)).

2. The matter was heard by Magistrate Ward on 25 February 1991. By his decision delivered on 8 March 1991, his Worship found a verdict for the defendant. I set out hereunder the text of that decision:-
"Mrs Kociolek was a young lady of 17 years on 2 December

1983. She claims that she then injured herself whilst
working for the defendant. It is said that the defendant
is responsible for the injury since he failed to establish
a safe system of work. The determination of the facts of
the matter was not assisted by the fact that the accident
occurred on or about 2 December 1983, and the plaintiff
left it until 27 October 1989 to commence proceedings for damages.
The plaintiff was employed at the relevant time as an
assistant at the Tuggeranong Shoprite. The defendant was
her employer. Someone, she can't remember who, instructed
her to unpack Coolabah Wine casks from their box on a
trolley, and pack it on the shelves. The individual wine
casks were in boxes of four casks, and stacked on the
trolley. In evidence, she said the trolley was stacked
five boxes high and two deep placing the highest box on the
trolley level with her head. She reached for a box and
pulled it towards her chest, then lowered it to the ground.
She noticed that her arms were getting sore during the day.
Her shoulder was sore that night. She saw a Doctor and
rested at home for one week. She went back to work to a
different section. Her shoulder was then a lot better.
She lost no more time off her work with the defendant.
She left that job in 1985 and went to work for the National
Library.
There the trouble flared up when she was putting books on
shelves. Altogether, she lost 6 weeks or thereabouts from
her work with the library. She eventually left that job to
have a family.
It was agreed that the boxes weighed 18kg. I am not
satisfied that there was any proper reason for the
plaintiff to lower each 18kg box from the trolley to the
ground. She knew that each cask had to be taken from the
box and stacked on the shelf. That could easily have been
done in situ, i.e., with the box remaining on the trolley.
The plaintiff stated she could not properly reach the 2nd
row of boxes or the highest level of the trolley. If not,
then it would have been a simple exercise for her to have
turned the trolley round so that the 2nd row became the
first row.
The plaintiff differed in her evidence as to the number of
boxes on each trolley: at one stage, she said it was 8-10,
later she said it was 16-20. She was also uncertain as to
the number of trolleys she unloaded that day. It also
casts doubt about the frequency of lift used by the
plaintiff. That was fundamental in the plaintiff's
hypothesis. I am not satisfied that the frequency of lift
was less than 2 minutes for each 18kg box nor that the lift
occurred with the centre of gravity of the box 350mm away
from the body. Both cases, that is, for the plaintiff and
defendant, were supported by experts. Mr Beswick gave
evidence supporting the plaintiff's case to the effect
that, in the circumstances, the load of 18kg was too great
to be undertaken in safety by a seventeen year old girl.
Dr Adams for the defendant claimed that the task could be
performed in safety. Indeed, he claimed that almost the
entire female population of the world (presumably above 16
years of age) is capable of lifting such a load without
difficulty.
Both Dr Adams and Mr Beswick were well suited to express
their respective opinions. However, it must be stated that
Dr Adams appears better qualified, and in the upshot, I
found his evidence more persuasive. Mr Beswick's
hypothesis depends mainly upon the Snook tables and on the
frequency of the plaintiff's lift being between 1 and 2
minutes. I am far from persuaded that the latter figure is
accurate. I have concluded, on the balance of
probabilities, that the task allocated to the plaintiff by
the defendant was safe, and that the defendant was
not negligent, either in setting up its system of work, or
otherwise. The onus is upon the plaintiff of proving
negligence, and she has failed to do this.
There is evidence, and I accept this, that the plaintiff
was not given any instruction as to how to perform this
particular task. It is hard to imagine what instruction
she might be given. The task was so simple, it could be
performed without any instruction at all. We must assume
that the plaintiff went to school and received appropriate
tuition. Indeed, she said that that occurred and she
stayed at school until year 11. She was aged 17 at the
time and of apparently reasonable intelligence. I find, in
the circumstances, that the defendant was without blame in
leaving her to perform this essentially easy task without
further instruction.
There will be judgment for the defendant, and the plaintiff
must pay the defendant's costs of the action, to be taxed."

3. As to the first paragraph, whilst the plaintiff did wait nearly six years before suing, the basic facts were not, apparently, in dispute. The medical history of the appellant was more complete by reason of the delay than otherwise. It is true that there was some confusion as to the situation leading up to the appellant's injury. That was probably due, in part, to faulty pleading and particularisation by the appellant's solicitors. It is clear that any such confusion had been resolved by the date of the hearing.

4. In the third paragraph, his Worship declared that he was not satisfied that there was "any proper reason for the plaintiff to lower each 18kg box from the trolley to the ground". This was not what the appellant (plaintiff) claimed she was doing. She had a trolley loaded with five layers of cartons each containing four wine casks. There were four cartons on each layer. Despite initial confusion, that was conceded on each side to have been the fact.

5. Nor was the method of work, again despite initial confusion, in doubt. The appellant was only 156.2cm tall. Each carton was 250mm high. The surface of the trolley on which they were stacked was 250mm above floor level. Each carton weighed 18kg. It followed from this that the top of the fifth layer of cartons was 150cm above floor level. The plaintiff, from floor level could not get access through the top of the cartons in the top stack to remove the casks individually. Her task was to stack the individual casks on the shelves.

6. It is obvious that to complete that task the appellant had to lower the cartons forming the top layer to the floor. She could then access all other cartons on the trolley progressively through their tops and remove the individual casks, discarding the empty cartons to access lower layers. There was not, however, until the lower layers below the top layer were so unpacked, any place for the top layer to go except the floor or some shelf. She had to lift them down and put them somewhere pending.

7. I regret that I simply cannot understand how his Worship came to the conclusion that the appellant could have unloaded the casks individually from the cartons they were within, loaded as they were, in situ, nor how turning the trolley around would assist. Neither counsel was able to explain this conclusion either.

8. The plaintiff gave unchallenged evidence that the four boxes constituting the top layer were lowered by her to the ground each time a loaded trolley was presented to her on the day in question for her to unload. She unloaded four to five trolleys each loaded as noted above. It took her 20 minutes to unload the trolley. She lowered the four cartons on the top within two minutes of each other. She lifted or lowered no other carton until the next loaded trolley was presented.

9. Mr Beswick, an expert who gave evidence for the appellant, had measured the precise way the plaintiff had carried out the task in question. Neither he nor anyone else asked his Worship to accept that the lift (or lowering) was with the centre of gravity of the box 350mm away from the body, a measurement referred to by his Worship. Mr Beswick estimated that the relevant distance varied during the lowering process but did not exceed 280mm. The "Snook" tables for recommended safe lifting have a calibration for 180mm, 250mm and 380mm. It is not clear where his Worship obtained the figure of 350mm from. Counsel were unable to explain where, if anywhere, this figure could have come from.

10. Certainly, it was agreed that there was no instruction given to the appellant as to how she was to lift the cartons in question from the trolley to the floor. His Worship concluded that the task was so simple that no instruction was necessary. It is difficult to know what task it was that his Worship had in mind in view of the fact that it seems that he had, apparently, misapprehended what it was that the plaintiff was required to do and what she had been doing when injured.

11. It was suggested by Dr Adams, whose expert evidence his Worship preferred, that the given task could have been performed with the top layer of cartons on their side (the top facing outwards, I presume) so that the individual casks could be accessed and stacked without the need to lift the cartons from the top layer to the ground. There is no doubt that had the work system used by the appellant been perceived by her employer to be unsafe, it would have been a simple matter for the system to have been altered so as to avoid the need to lift the top layer down to the floor.

12. The responsibility for instituting and maintaining a safe system of work lies with the employer, not the employee who is injured by any lack of safety (see Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Turner v State of South Australia (1982) 42 ALR 669; Castro v Transfield (Qld) Pty Ltd (1983) 57 ALJR 619; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306; Bankstown Foundry Pty Limited v Braistina [1986] HCA 20; (1986) 160 CLR 301).

13. For liability to be established it is not necessary that the hypothetical reasonable employer perceive the risk of injury to be that it is likely. It is enough that it be a real risk.

14. There was no argument before me to suggest that the duty of care of the respondent was as referred to. The real issue in the case is whether the system of work should have been perceived as exposing the plaintiff to a real risk of injury.

15. There were two expert witnesses called. Mr Beswick, an occupational therapist, gave evidence for the appellant. Dr Neil Adams, Senior Lecturer, Safety Science, University of New South Wales, gave evidence for the respondent.

16. Mr Beswick said that, according to the generally accepted standard in 1983, known as the "Snook Tables", the appellant was subjected to an unacceptable lifting task. It was unacceptable because of a perceived risk of injury. It was made more unacceptable by reason of the age (17 years) of the appellant and the repetition of the task.

17. He concluded that the maximum lift, if the more advantageous posture was adopted by the appellant, would be 13.26kg. If the less advantageous posture had been adopted, the maximum lift should not have exceeded 12.24kg. In cross-examination, the conclusions to be drawn from the Snook Tables were not challenged. It was suggested that the lift was, nevertheless, not inherently dangerous. Mr Beswick did not accept that suggestion.

18. It may have been the case, of course, that Mr Beswick assumed 8-10 boxes needed to be lifted down within 1-2 minute intervals. However, he did conclude that, even apart from the "frequency" issue, the lift was, by reference to the Snook Tables, demonstrably unsafe.

19. Dr Adams disagreed with Mr Beswick. He felt that a lift down to floor level was less risky than a lift in the opposite direction. He agreed in cross-examination, that even without any corrections for her age or the frequency of the lift, that the maximum allowable for the appellant to lift in New South Wales would have been 16kg. That standard had been applied for health and safety purposes in New South Wales since 1912. He agreed that according to the Snook Tables, on any view of them, with or without corrections for frequency but corrected for her age, the lifting task assigned to the appellant was excessive. The Snook Tables, he said, were accepted by the Australian Medical Health and Research Council in 1983.

20. Had the matter rested there, of course, there would have had to be a verdict for the appellant. Dr Adams, however, contended that it was more appropriate to apply the standard recommended by the US National Institute of Occupational Safety and Health (NIOSH). That standard was first published in 1981. It has yet to be adopted in the United States. It was described by Dr Adams in his written report as follows (exhibit 12):-

(10) "Instead of specifying an absolute weight limit, NIOSH
spells out recommendations in terms of the compressive load
imposed on the spine when a particular load and a
particular posture, as well as the person's own build and
physical stature, are taken into account."

21. Dr Adams noted that Prof. Chaffin, of the University of Michigan had prepared a computer program giving effect to these variables. Dr Adams had produced a computer printout utilising this program. It demonstrated that a lift of 18kg from 150mm above floor level could be carried out safely even with incorrect lifting techniques (deep bend of the back). Of course, this was not the relevant task but Dr Adams, in his oral evidence, said that the lift down which the appellant had actually performed should be at least as safe if not more so.

22. Effectively, it was Dr Adams' opinion that the Snook Tables were too conservative assuming that the load was being lifted smoothly (that is, no sudden deceleration of the load).

23. Neither of the two experts was challenged as to credit. It really came down to a choice as to which standard correctly forecast the risk inherent in the task to be performed. It was not disputed, as it happens, that the appellant in fact suffered injury as a result of the lifting tasks she performed that day.

24. Thus if Dr Adam's view was accepted it would amount to saying that, in 1983, an employer should not, if acting prudently according either to the Snook Tables or the New South Wales standard, have required the appellant to lift 18kg. The reasonable employer would not have given the appellant such a task because of a perceived risk of the kind of injury the appellant in fact suffered. That would be so whether or not such a lift was repeated. However, that perception by the reasonable employer would (Dr Adams says) be misplaced. The risk was much less than such employer would have believed.

25. However, realistically, to assess the risk by reference to Dr Adams' standards, an employer would need to have access to Dr Adams' computer program or to manually carry out the complex calculations required. Then, of course, there would remain some risk of injury if the appellant handled the load so as to decelerate it too suddenly. That was a risk which could not itself be disregarded.

26. If follows, it seems to me, that the reasonable employer would have adopted one of the measures suggested by Dr Adams to avoid the appellant having to lift the 18kg cartons. If that had been done the appellant would not, on the balance of probabilities, have suffered the injury she did.

27. The test is what a reasonable employer should have concluded. By that test the task carried with it a perceived unacceptable risk of injury. It follows that the employer was negligent. The view of an expert that the reasonable employer's standard was objectively wrong would be relevant if and only if it was contended that the lifting task was so safe that it had not, in fact, caused the injury complained of. That conclusion was not open.

28. It may also be noted that although his Worship found Dr Adams better qualified and hence more persuasive, no reasons were advanced for this conclusion. Further, it is not stated what evidence of Dr Adams it was that was more persuasive. To my mind, it is necessary to evaluate not merely the qualifications of various qualified experts but also the inherent quality of their data and hypotheses. The NIOSH standard has not been adopted in the United States. It purports to make no difference between men and women. It depends for its proper application on the precise dynamics of the lift in question. The Snook Tables provide a certain guideline not dependent on the precise dynamics of the lift. I would be loath to suggest to employers, as his Worship's decision does, that those standards can be safely ignored or, at least, ignored without risk of tortious liability. I reject that suggestion. In my view, it would compromise the health and safety of many manual workers. It should not be cast aside merely because of some suggestion that a lesser standard could be more appropriate. I do not say the NIOSH standard is useless. It may be that some lifts within the Snook Tables may be unsafe if analysed by reference to the NIOSH standard. A reasonable employer would need to meet all reasonably accepted standards.

29. It follows that I may either now proceed to assess damages or refer the matter back to the Magistrates Court for that purpose. As the parties are agreed that all relevant evidence as to damages is before me and that there are no factual or medical issues in contention, I consider that it would cause unacceptable delay to take the latter course.

30. The appellant's history of injury was that during the day following the lifting work, she experienced pain in the neck and left shoulder region. She did not cease work. She did, however, change jobs. She went to work at the National Library. The left shoulder was not then symptomatic. She had to lift some boxes of books. It was not suggested that the weight she had to lift was inherently unsafe, yet she experienced neck pain and pain in her shoulder. It extended to her elbow and wrist. She had physiotherapy and acupuncture. She had, after the initial injury, seen Dr Bremner, a general practitioner. She continued to have some problems with lifting such things as tubs of mince at Shoprite before she left the defendant's employ but it was, apparently, only occasional.

31. After the incident at the National Library, the pain did not clear entirely. In 1988, the appellant went on maternity leave. She resigned in June 1989. The shoulder problem has continued.

32. She has trouble with it when vacuuming, hanging out washing, cleaning the bath, coping with babies. She was treated by Dr Cassar. As a result, she has had some relief but not a complete cure.

33. The pain can, however, recur with or without activity of the kind described.

34. The time off work was paid for through Comcare.

35. Dr Bremner's report of 18 March 1986 was tendered. It detailed a history consistent with the appellant's evidence.

36. Dr Cassar, a consultant physician, provided several reports and gave oral evidence. He was of the opinion that the December 1983 incident caused:-

"discogenic and nerve root irritation injury in her
cervical spine with nerve root irritation pain radiating
into the left shoulder."

37. On 18 January 1991, Dr Cassar reported that:-

"It is also my opinion that treatment for exacerbation such as her
current flare up will be required most years with the expectation of
expenditure in the order of three to five hundred dollars per annum for
medication and pain management therapy without which intolerable pain
and a vicious cycle of arm weakness and secondary depression will ensue
in the manner of such cases of chronic upper limb pain (CULP)."

38. There is no treatment available surgically to correct the condition. It is a 10% disability of the left upper arm. Without ongoing palliative treatment it could be as high as 50%. She will be limited to light clerical work.

39. In cross-examination, Dr Cassar conceded that his opinions were based on the accuracy of the history given to him by the appellant but, as that history was not successfully challenged, I accept Dr Cassar's opinions.

40. A report was tendered from Dr Roebuck, an orthopaedic surgeon. He examined the plaintiff in December 1989. He found evidence of a left trapezius strain and tenderness. He could find no other clinical signs. He concluded that the December 1983 incident had caused "a temporary residual disability...to her left shoulder". He expected gradual improvement once her children were past the stage of requiring physical exertion.

41. Dr Roebuck was not called and so was not cross-examined. Mr Wilcox (for the respondent) conceded that, in those circumstances, it would be unfair to prefer Dr Roebuck's opinion to that of Dr Cassar. I therefore accept Dr Cassar's opinion as the more probably correct.

42. It follows that this young lady has a permanent injury and a restriction on her future work capacity, although it is not possible to conclude that she would lose future employment prospects which realistically she might otherwise have embraced.

43. It is, I think, appropriate to reflect her reduced employment capacity in general damages. She will have a continued expenditure for treatment and medication. It will average $400.00 per annum approximately.

44. I award $25,000.00 for pain, suffering, loss of enjoyment of life, including reduced working capacity. I award $10,000.00 for future medication and treatment.

45. Past wage loss due to work absences was agreed at $2,449.11.

46. Past out-of-pocket expenses total $3,543.10.

47. That totals $40,992.21. There will be judgment accordingly (subject to any mathematical adjustments).

48. I will hear the parties on costs.