Cole v Franklins Ltd [2004] NSWCA 379 (3 November 2004)

Last Updated: 9 November 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: COLE v FRANKLINS LTD [2004] NSWCA 379

FILE NUMBER(S):

41045 of 2003

HEARING DATE(S): 19/08/2004

JUDGMENT DATE: 03/11/2004

PARTIES:

Kylie Anne Cole - Appellant

Franklins Limited - Respondent

JUDGMENT OF: Mason P Hodgson JA Bryson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 12249 of 2001

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:

Miss S. Norton SC and A. Healey - Appellant

M. Joseph - Respondent

SOLICITORS:

Bryden's Law Office - Appellant

Sparke Helmore - Respondent

CATCHWORDS:

EMPLOYMENT - workplace injury - appellant experienced pain in L arm and shoulder while placing bag of goods in shopping trolley - employed at check-out handling high rate of customers including some heavy goods - negligence alleged related to high rate of handling and handling technique - Trial Judge found that causation by alleged breaches of duty was not proved by medical evidence - no error shown, appeal dismissed.

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

41045 of 2003

MASON P

HODGSON JA

BRYSON JA

WEDNESDAY 3 NOVEMBER 2004

KYLIE ANNE COLE v. FRANKLINS LIMITED

Judgment

1 MASON P: I agree with Bryson JA.

2 HODGSON JA: I agree with Bryson JA.

3 BRYSON JA: The appellant suffered an injury in the course of her work at the respondent's supermarket in the Moorebank Shopping Village at Stockton Avenue Moorebank ("the Moorebank Supermarket") on Tuesday 30 May 2000. The appellant's action for damages against the respondent was heard in the District Court at Sydney by his Honour Judge Puckeridge QC on three days commencing on 8 September 2003, and his Honour gave judgment for the respondent with costs on 23 October 2003, for reasons then stated.

4 The appellant was born on 29 November 1968, and was 31 years of age at the time of her injury. She left school in 1983 without formal qualifications, worked in shops, and from about 1985 worked in a Flemings Supermarket; after six months she changed to Coles and worked there for about one year. She later had employment at several restaurants as a waitress, at a shop as a salesperson, and at Woolworths as a Service Supervisor for about three years. She was not employed for some years while looking after her children, but after that she worked for three years packing shelves at Woolworths. Over many years she did a lot of supermarket work in various different supermarkets and was well experienced.

5 The appellant's employment with the respondent at the Moorebank Supermarket commenced on 6 September 1999. Her position was designated Customer Service Team Leader. The appellant worked full time, five days a week from Tuesday to Saturday inclusive, and on 30 May 2000 she started work, as she usually did, at 7.45 am; she had duties to attend to before 8 am, including attending to money, collecting paper work, turning on the registers and the computer and inserting paper rolls in all registers; then at 8 am she opened the doors and proceeded to serve customers. It is the appellant's evidence that at the time she was injured, which she put at about 9 am, she was the only person working in the shop. There was one other employee who was working at the back dock receiving all loads of grocery items. (It was disputed whether the appellant was the only person working in the shop; there might have been one other, and the Trial Judge did not resolve this issue.)

6 It is the appellant's evidence that at the relevant time only one register was open; this was a register usually used for customers buying 10 items or less, and the layout of the register was not the same as the layout of other registers used later in the day for customers purchasing large number of items. The appellant was attending to customer checkout at the "10 items or less" register; and there were about 15 customers in the shop.

7 It is the appellant's evidence and her case that for the first hour and a half after the shop was open the pace of work at her register was very high, and customers usually had full trolley-loads, not just a few items. She had requested her supervisor, about four weeks after she started to work there, for another operator to help her in the mornings and the supervisor told her that the store could not afford to do this. She persisted with her request and asked again six or seven times, but received the same reply. Between 8 am and 9.30 am on 30 May 2000 the store was quite busy. She attended to a customer who brought a trolley full of goods to the checkout register; the customer did not have 10 items or less. The appellant alleged that when she was processing the order by lifting a bag and placing it into a trolley she heard a crack and felt pain at her left shoulder.

8 The grounds of the appellant's claim are set out in the Amended Statement of Claim which appears to have been produced and used at the trial. The many particulars of negligence given included:

d. Requiring the Plaintiff to repetitively lift heavy bags of groceries into customers' shopping trolleys;

e. Requiring the Plaintiff to bend and reach forward so as to be able to place the said bags of shopping into trolley;

f. Failing to provide the "ten items or less" cash register with a sufficiently large table so as to allow customers to pack their own bags and load their own trolleys;

g. Requiring the Plaintiff to work the "ten items or less" register for periods which were too long;

9 There are many more particulars which challenged detailed aspects of the arrangement of the workplace, but one principal complaint was to the effect that the nature and conditions of work required repetitive lifting of heavy bags into shopping trolleys, the pace of work from 8 am to 9.30 am was excessive and there should have been at least two checkouts open, the "10 items or less" register should not have been used for large loads and was unsuitable in many design respects for that use, and the nature and conditions of work were such that the respondent was in breach of its duty of care as the appellant's employer. Another principal complaint related to the specific incident in which the injury occurred, and to the way in which the appellant handled a heavy bag of goods which she was placing in a trolley.

10 The Trial Judge stated, and in my understanding treated as established as a fact for the purpose of his Honour's decision, the event in which the appellant was injured in the following way: (Red 28-29)

The plaintiff alleges on 30 May 2000 she was lifting a bag containing three bottles of Coca-Cola and placing them in a trolley. She said in her evidence that she was lifting a bag containing three bottles of coke into the customer shopping trolley when she felt her left shoulder crack. She stated that each of the bottles of Coca-Cola were 1.25 litre bottles. She stated that she heard a crack in her shoulder joint down her inner arm. She stated that when she finished her shift at about 9.30 she left her register and went upstairs and reported the injury.

...

Further at page 77 of the transcript the plaintiff said she picked up the bag with both hands and then walked around to the trolley. She said that it was when she placed the bag in the trolley that she noticed the pain in her arm and that she noticed the pain when she lifted it into the front of the trolley. She said at that stage her arms, namely her elbows, were at her side but out a little bit. She said she walked around with her arms and elbows at her side and then had to raise her arms up a little bit in reaching over and putting the bag in the trolley. This movement is of significance in that it clearly indicates on the evidence that the plaintiff did not have outstretched arms. Also she was carrying a weight, approximately four kilograms with both hands.

11 Evidence in support of the appellant's case relating to the nature and conditions of work, and their relationship with the occurrence of the appellant's injury, appears in the report of Dr Neil Adams dated 21 June 2002 (Blue 1) and in his supplementary report dated 3 February 2003 (Blue 45). Dr Adams is an Ergonomics and Safety Management Consultant; he has high academic qualifications and is very experienced in his field. He is a Visiting Fellow in the Department of Safety Science of the University of New South Wales, a Doctor of Philosophy of that University and had earlier studies in Applied Psychology. Dr Adams was not cross-examined on his reports.

12 Dr Adams' report of 21 June 2002 includes in Section 3 statements of the assumptions and information concerning the work performed leading to development of the injury. In subs.3.1 Dr Adams set out a detailed description of the work performed which substantially accorded with evidence given by the appellant about her work tasks, including the work at the "10 Items or less" checkout between 8 am and 9.30 am which was extremely fast and repetitive for the entire one and a half hours. Dr Adams described operations at that checkout, and the nature and weight of the items handled; the weights varied greatly but could include very heavy items such as 20 kilo bags of potting mix, cartons containing 24 cans of soft drink and 10 kilo bags of rice, sugar or dog food. The appellant told Dr Adams that she estimated that approximately 30 customers per hour were processed by similar checkout operators with an average number of approximately 50 items per customer. In subs.3.1 under the heading of "Injury Occurrence" (Blue 5) Dr Adams said:

3.2 The injury occurrence.

Ms Cole recalls that she actually experienced injury during the course of checking through a very large order. In fact, she described the order as "huge". She had transferred three of the 1.25 litre bottles of soft drink from the conveyor into the plastic bag. As she lifted that bag with her left hand preparatory to carrying it around the end of her counter to deposit in the customer's trolley she experienced what she described as "a crack" in her left shoulder joint. I understand that she has been diagnosed as having developed "chronic bicipital tendinitis" in the left shoulder and has been identified as having suffered a disc protrusion at the C2/3 level of her cervical spine.

13 In Section 4 Dr Adams made an ergonomic evaluation. For the purpose of the evaluation he accepted the appellant's observations about the number of customers and the rate of work in the first 90 minutes of the day. Dr Adams said: "The figures provided by her suggest that the checkout operator would handle approximately 1500 items during that period of 1½ hours and with an average of perhaps five or six items being placed in each plastic bags. [S]he would also perform as many as 300 lifting and carrying movements as the filled bags were lifted and transported around the end of the counter to the customer's trolley." Dr Adams said:

4. ERGONOMIC EVALUATION.

The task demands that characterise that part of Ms Cole work to which her injury has been attributed may be compared against the criteria for the development of an occupational overuse syndrome summarised in Section 2 of this report. As this comparison and evaluation are made it must be borne in mind that the various causal factors which may contribute to the development of an occupational overuse syndrome do not necessarily act independently. In fact, there can be a synergistic interaction between the various factors such that the combined effect is multiplicative rather than simply additive. However, for any of the factors or their combined effect to have any significant causal influence, at least one of the factors must reach a level of intensity at which it might be considered to have a damaging effect.

14 Doctor Adams went on in his ergonomic evaluation to deal with the high rate of repetition maintained for an extended period, static loading, stress posture and the use of "considerable" effort, which could constitute three sets of risk factors, and gave this opinion: (Blue 7)

Having regard to the synergistic or interactive effect of the three sets of risk factors discussed above, I believe that it is entirely unnecessary to invoke either physiological or psychological predisposition as explanations for Ms Cole having developed injury. I am firmly of the belief that the combined effect of three risk factors that I have discussed would have been more than sufficient to engender or contribute quite significantly to the development of genuine cumulative trauma disorders of the kind that I understand she did develop.

On the basis of the evaluation and information presented above I believe it may quite reasonably be concluded that Ms Cole would have developed injury as a direct function of the physical demands and stressors inherent in the work that she was performing primarily during the first hour and a half of each day's work but without significant relief for the rest of the day's work.

As usual, while I am enabled by my expertise in ergonomics to comment on the causation of an injury I am prepared to defer to an appropriate orthopaedic expert as to the precise nature and severity (diagnosis) of any injury that was sustained.

Clearly, the information produced by the risk identification procedure, taken in conjunction with the ergonomic evaluation, make it entirely obvious that the work performed by Ms Cole did indeed expose her to a quite significant risk of developing injury or injuries of the cumulative trauma disorder type.

15 In one of his concluding comments and opinions Dr Adams said:

6.1 Regarding cause.

On ergonomic grounds I can fully accept that Ms Cole would have developed genuine injuries of the cumulative trauma type as a consequence of performing the rapid and at time relatively heavy lifting and effortful reaching that characterised her work as the customer service manager but working at the only available checkout for the first hour and a half of each day's work. I would regard that work as described in Section 3 and analysed in Section 4, and the cumulative stresses imposed on Ms Cole's musculo-skeletal system by that work performance, as the primary or proximal cause of the injuries she developed. Among the more fundamental or distal causes I would place greatest importance upon the system of work which required Ms Cole to perform such rapid and posturally stressed lifting as she was required to undertake. I would include as distal causes the apparent failure of the employer to have modified the system of work and the workstation along lines such as those suggested in Section 5 above.

16 Doctor Adams' report of 21 June 2002 contains much other material in support of his opinions. In his supplementary report Dr Adams commented on a report prepared on behalf of the respondents by Ms Louis Whitby, and stood by his earlier evaluation, opinions and comments.

17 After addressing the terms of Dr Adams' report, the Trial Judge said: (Red 31)

I consider that [Dr Adams' Report] is evidence of a foreseeable risk of injury from repetitive overuse of workers' hands and arms. I do not consider that the opinion of Dr Adams is evidence that the plaintiff sustained injury as claimed as a result of any overuse of the plaintiff's arm. That I consider would be a medical question in respect of which there would need to be a medical answer by a properly qualified medical expert.

I also note from an examination of the evidence of the plaintiff that the plaintiff herself in evidence before the Court does not confirm the information as contained in Dr Adams' report. Doctor Adams, as previously stated, said that the plaintiff lifted the bag with her left hand preparatory to carrying it around the end of the counter to deposit it in the customer's trolley and it was at that time that she experienced a crack in her left shoulder [joint]. The evidence of the plaintiff was that she was lifting the bag into the customer shopping trolley.

In cross-examination in respect of this matter, the plaintiff at page 72 of the transcript said that she took the bag, the bag containing the three bottles of coke, off a bag rack and then walked around the end of the register and placed them in the customer shopping trolley. She said she actually had to do like three sidesteps to go through a little gate and then put them in the customer's trolley.

Further at page 77 of the transcript the plaintiff said she picked up the bag with both hands and then walked around to the trolley. She said that it was when she placed the bag in the trolley that she noticed the pain in her arm and that she noticed the pain when she lifted it into the front of the trolley. She said at that stage her arms, namely her elbows, were at her side but out a little bit. She said she walked around with her arms and elbows at her side and then had to raise her arms up a little bit in reaching over and putting the bag in the trolley. This movement is of significance in that it clearly indicates on the evidence that the plaintiff did not have outstretched arms. Also she was carrying a weight, approximately four kilograms with both hands.

On the evidence before me, and particular the evidence of Ms Whitby, a lift of up to twenty kilograms would be within acceptable limits.

18 The event in which the appellant's injury was precipitated, as established by her evidence at the trial and as accepted by the Trial Judge for the purpose of disposition of the proceedings, is significantly different to the event which Dr Adams assumed to have happened. As described in evidence, the lift was a careful two-handed lift of a moderate weight in the order of 4 kilograms, in which the appellant did not use any inappropriate lifting technique which might bring under consideration the adequacy of the respondent's staff training or system of work with respect to lifting techniques as causation of her injury.

19 The critique made by Dr Adams, in a number of respects, of the nature and conditions of the work, including its fast pace, repetitive nature and the arrangement of the checkouts, would require adjudication if there was a basis for concluding that the appellant's injury was a cumulative trauma disorder caused by the nature and conditions of employment. Although Dr Adams offered his own opinion in support of that conclusion, he acknowledged that he should defer to an appropriate orthopaedic expert. It is plain that the Trial Judge was not prepared to accept and act on Dr Adams' opinion on the subject of causation of the appellant's injury. In this respect I am of the view that the Trial Judge was correct, and that causation is a subject outside the area of expertise which Dr Adams' reports show that he has; in the context of the present facts, it is a subject on which opinion evidence might be given by a person equipped with expertise in orthopaedic medicine, and perhaps by expertise in other medical practice, but not, it must respectfully be said, by the expertise which Dr Adams has been shown to have. The Trial Judge treated Dr Adams' expertise as of no weight in this particular respect, and in my opinion this is correct.

20 The Trial Judge reviewed the medical evidence which might have a bearing on the question of causation. A number of medical reports were tendered by each party. No medical witness gave oral evidence and none was cross-examined.

21 Doctor M.E. Bailey is a general practitioner who practices at Lurnea Medical Centre. The appellant saw Dr Bailey on 30 May 2000, the day of her injury. Dr Bailey gave a report of 2 November 2000 which includes a history of treatment to date, his diagnosis and prognosis, and gave a further report of 20 November 2002 bringing the position up to that time. He made another minor report. Dr Bailey's reports show that the appellant consistently gave a history of work injury. His first diagnosis on 2 November 2000 was "Soft tissue strain, initially left shoulder but extending into neck". In that report Dr. Bailey further said "Lifting a bag whilst working at Franklins seems to have been the initiating event, thus her employment would be a substantial contributing factor." In his report of 20 November 2002 he said: (Blue 61)

Prior to 30/5/2000, when she had a lifting strain at work, she had been working fulltime and had been asymptomatic. Early scans did not demonstrate abnormalities - see first report - but later investigations showed the above findings - so there seems to have been progressive deterioration since the initiating event.

22 Doctor Bailey referred the appellant to Dr Peter E. Giblin, an Orthopaedic Surgeon. At the trial two reports by Dr Giblin were included in the appellant's bundle of medical reports which were marked Exhibit E. Dr Giblin first saw the appellant on 31 August 2000. In his first report of 29 January 2001 Dr Giblin gave a history, his observations and opinions. The only passage which might be thought to bear on causation is as follows: (and I have emphasised some words) (Blue 65)

This lady has the provisional diagnosis of a soft tissue injury to the right side of her neck and left shoulder, reasonably causally related to the nature and conditions of her work environment as being the substantial contributing factor. Her general prognosis is guarded in the short-term, but would be more reasonable in the longer term.

23 Doctor Giblin made a further report of 14 February 2002, dealing with a further examination of the appellant on 11 September 2001. In this report he said nothing about causation. He made a further report on 21 November 2002 which carried the position up to an examination on that day, again not dealing with causation. After the trial had been completed and the evidence taken, the Trial Judge allowed a further report made by Dr Giblin on 17 September 2003 to be admitted in evidence (Exhibit J); this report was based on re-examining his earlier notes, and on reading the ergonomic expert reports by Dr Adams and Ms Whitby. In this report Dr Giblin said:

In reply to your letter of the 15th September 2003, I have re-examined my original hand written notes concerning this lady's work environment.

These records indicate that she was a customer service team leader at Franklins, but the vast majority of her work time was spent on the register.

It was during the course of this work environment, which she described as quite repetitive in terms of lifting and twisting that she started with sharp shooting pains around the left shoulder together with some pain and stiffness in her right side of the neck with headaches.

She reported that the symptoms became apparent when she was lifting a bag containing three large bottles of Coca Cola onto the trolley.

As such, my understanding of her work environment, was that she was employed as a check out operator, in a position in a supermarket typical of most other operators, in terms of lifting and twisting on a repetitive basis.

I have read the report of Dr Neil Adams and Ms Whitby as enclosed in your correspondence.

It remains my view, that the opinions as expressed in my report of the 19th January 2001 is unchanged.

24 The Trial Judge observed to the effect that Dr Giblin was the only medical witness who referred to the nature and conditions of the appellant's work as being causally involved in any condition which she suffered or claimed to suffer. The Trial Judge reviewed, extremely briefly, the reports of several other medical witnesses, who did not deal with causation. The Trial Judge referred to his having allowed the appellant to inquire of Dr Giblin what he understood to be the particular nature and conditions of the appellant's employment which contributed to her injury. The Trial Judge reviewed Dr Giblin's report of 17 September 2003 and said (Red 37): "The report was admitted only as to the doctor's understanding of the plaintiff's work environment." His Honour further said: (Red 37-38)

But Dr Giblin at no time indicates what was the nature of the repetitive and twisting movements involved. He does not state what was involved in lifting nor does he state how often the plaintiff was required to lift and twist and what weights she would be lifting and twisting with.

25 The Trial Judge reviewed, briefly, the evidence of Ms Whitby. His Honour concluded: (Red 38)

On the evidence before me, the defendant was aware that overuse could bring about what has been referred to as a repetitive strain or overuse injury. On the evidence before me the defendant took reasonable steps to avoid any such injury.

26 When stating conclusions the Trial Judge said: (Red 40)

On a review of all the evidence, I cannot be satisfied that the nature and conditions of the plaintiff's employment prior to 30 May 2000 was in any way causally related to the injury on 30 May 2000. There is divergence in the medical reports as to what did occur to the plaintiff's shoulder or the nature of the plaintiff's injury ...

I consider that Dr Adams is putting forth a theory and the evidence simply does not substantiate that theory. The plaintiff had no problems prior to 30 May 2000. The incident on 30 May 2000 I accept the plaintiff's submission that it was unremarkable. If the plaintiff was lifting a heavy item or a weight over twenty kilograms into a trolley it could be argued on her behalf that that was something she should not have done and could have been supervised to ensure that she did not lift any such weight. But that is not the plaintiff's case. The plaintiff's case is that she was lifting a weight of approximately four kilograms which was well within Industry Standards so far as weights that could be lifted.

The defendant was not in breach of any duty to protect her from unnecessary risk of injury in allowing the plaintiff to lift a weight of four kilograms with both hands and place it in the trolley as she stated in evidence. There was nothing in any industry standards which would show that the defendant was in breach of a duty of care to the plaintiff in those circumstances.

Considering all the evidence and finding as I do that there was no breach of duty, in the circumstances there will be a verdict for the defendant.

27 In the Trial Judge's reasons his Honour did not pursue to conclusion a number of issues of fact on which the evidence of the parties differed. The Trial Judge disposed of the litigation on the issue of causation, and in my understanding it was his Honour's finding that on any case of negligence reasonably available for adjudication the appellant's injury was not caused by breach of duty. The evidence of the appellant about the event in which her injury occurred, and the Trial Judge's finding based thereon, establish that the event occurred in a significantly different way to that on which Dr Adams' report was based. The evidence of Dr Giblin did not establish in any way which could carry proof on the balance of probabilities, that causation of the injury which the appellant sustained arose from the nature and conditions of work during her employment in the period preceding her injury. There is no clear relation between Dr Giblin's highly general statements about causation and the events which the appellant alleged showed negligence in the nature and conditions of her work.

28 Submissions made by Senior Counsel for the appellant contended that the judgment of the Trial Judge should be set aside and that there should be a new trial, on a number of different grounds. Under the first ground it was contended that it was impossible to assess the impact of the expert reports so as to draw any conclusion whether there had been a breach of duty, as the Trial Judge had not gone further than noting the evidence of the appellant as to the nature and conditions of her work, and had noted the expert reports on the system of work, but had not made any findings in relation to breach of duty by the respondent. In my opinion this ground should not be upheld because the reasons given show that the Trial Judge was of the view that, even at the highest position reasonably available, it should not be found that the appellant's injury was caused by any breach which was open to consideration.

29 Under the second ground Senior Counsel contended that the Trial Judge's reasons were affected by a number of factual errors. Some of the supposed errors relate to matters which the Trial Judge did not pursue to a finding and which, having regard to his Honour's approach, it was not necessary to pursue to a finding. One was a reference to Ms Bridges, who was a Store Manager at the Moorebank Supermarket in May 2000 and is still employed as an Assistant Store Manager elsewhere by Franklins. Ms Bridges was the Manager supervising the appellant at the relevant time, and was called as a witness on behalf of the respondent. The appellant's counsel contended to the effect that the Trial Judge was under a misunderstanding about whether Ms Bridges was called as a witness of the appellant or the respondent. There is in my view nothing in the context of his Honour's observations about Ms Bridges' evidence which tends to show that he was truly under a misunderstanding about whose witness she was, or which shows that he took a wrong view of what her evidence was. It is very difficult to suppose that the Trial Judge was in fact under any misunderstanding, because Ms Bridges was, as the transcript recorded (Black 134) called as a witness by the respondent's counsel immediately after the appellant's counsel had closed her case, and Ms Bridges was examined in chief by the respondent's counsel and cross-examined by the appellant's counsel. The general tenour of Ms Bridges' evidence makes it impossible, in my view, to suppose that the Trial Judge misunderstood which party called her evidence, and I regard the reference to her as called on behalf of the appellant as no more than a momentary slip and misstatement which cannot have had any real influence on the proceedings.

30 In Ground 3 Senior Counsel presented a critique of an observation by Ms Whitby and contended that the Trial Judge's summary of Ms Whitby's evidence was incorrect and misleading. In dealing with the facts the Trial Judge referred to Ms Whitby's evidence only for the proposition that a lift of up to 20 kg would be within acceptable limits: this was of peripheral importance as the actual lift was about 4 kg. As the Trial Judge's disposition of the proceedings on the merits was not based on the evidence of Ms Whitby I do not think that Ground 3 requires adjudication on appeal.

31 Under Ground 4 Senior Counsel contended "The Trial Judge having found that the respondent was aware of the risk of repetitive strain injury to a person in the position of the appellant erred in finding they had taken reasonable steps to avoid such injury." In my opinion adjudication on this ground is not required because, while the Trial Judge expressed the view that reasonable steps had been taken to avoid injury, his Honour's disposition of the merits of the case did not turn on this finding, but turned on his Honour's view on causation.

32 In Ground 5 Senior Counsel for the appellant contended "The Trial Judge appears to have found that because the appellant had no problems or pain prior to the incident of 30 May 2000 she could not have sustained an injury arising out of the nature and condition to her employment. This finding if made was incorrect." In my view the Trial Judge did not make a finding to the effect contended for. Evidence shows and it would be in no way difficult to accept that the nature and conditions of employment might predispose an employee to an injury, or bring about some changes before precipitation of injury without the employee's being aware of them. I do not think there is any substantial indication that the Trial Judge was not aware of these possibilities. The difficulty with reasoning in this area is that there is no substantial basis for finding that any such chain of events in fact precipitated the appellant's injury. Ground 6 relates to a subject closely related to Ground 5, and can be disposed of on the same reasoning.

33 Under Ground 7 Senior Counsel contended "The Trial Judge erred in failing to make any or any sufficient findings as to the dangers posed by the physical configuration of the express lanes on which the appellant was required to work." In my opinion the Trial Judge was not required to pursue this subject to conclusion, having regard to the basis on which his Honour's actual conclusion was reached.

34 Under Grounds 8 and 9 it was contended to the effect that the Trial Judge had not given sufficient reasons for rejecting parts of the appellant's case and that the reasons which his Honour gave did not expose a logical reasoning process behind the decision; Senior Counsel referred to Beale v. Government Insurance Office of New South Wales (1997) 48 NSWLR 430. In my opinion the essential reasoning process leading to decision was fully disclosed by the Trial Judge's reasons.

35 In my view the evidence before the Trial Judge raised the possibility that the appellant's injury might have been caused by one or other of the two substantial matters which were put forward as allegedly breaches of duty; but did no more. The evidence of Dr Giblin hardly touched on the matter. It is not surprising that the Trial Judge did not make a finding, on the balance of probabilities, of causation on the material before him. I would doubt that there were grounds upon which such a finding could reasonably be based.

36 In my opinion the Court of Appeal should not set aside the judgment and orders made by the Trial Judge. The Court of Appeal should make the following order:

Appeal dismissed with costs.

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LAST UPDATED: 03/11/2004