Stoker v Adecco Gemvale Constructions P/L & Anor [2004] NSWCA 449 (6 December 2004)

CITATION: Stoker v Adecco Gemvale Constructions P/L & Anor [2004] NSWCA 449

FILE NUMBER(S):

41175/03

HEARING DATE(S): 30 July 2004

JUDGMENT DATE: 06/12/2004

PARTIES:

Paul STOKER (Appellant)

ADECCO GEMVALE CONSTRUCTIONS PTY LTD (First Respondent)

ALLMEN INDUSTRIES PTY LIMITED (Second Respondent)

JUDGMENT OF: Mason P Sheller JA Santow JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 9973/01, DC 5956/01

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL:

D T KENNEDY, SC/ D E ANDREWS (Appellant)

D P M O'DOWD (First Respondent)

D G T NOCK, SC/ W P Y AUSTRON (Second Respondent)

SOLICITORS:

Rishworth Dodd & Co (Appellant)

Gillis, Delaney, Brown (First Respondent)

Leigh Virtue & Associates (Second Respondent)

CATCHWORDS:

NEGLIGENCE - the appellant claimed damages for back injuries allegedly suffered in two separate incidents with successive employers - extent of duty of employer to provide a safe system of work and equipment - extent of duty of employer to make inquiries as to employee's health - extent of duty of employer which knows or ought to know of particular susceptibility of employee - breach of duty - whether system of work unreasonably exposed appellant to a reasonably foreseeable risk of injury - whether system of work inherently unsafe.

EVIDENCE - burden of proof - proof of negligence - sufficiency of evidence - whether common sense requires a finding of negligence - findings of fact based on credibility of appellant.

PROCEDURE - Appeal and new trial - Adequacy of reasons - extent of duty of trial judge to give reasons - circumstances in which new trial required.

LEGISLATION CITED:

Workers Compensation Act 1987 s151G-H

DECISION:

Appeal dismissed. Appellant to pay costs of the appeal of both respondents.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41175/03

DC 9973/01

DC 5956/01

MASON P

SHELLER JA

SANTOW JA

6 DECEMBER 2004

Paul STOKER v ADECCO GEMVALE CONSTRUCTIONS PTY LTD & 1 Ors

Judgment

1 MASON P: I agree with Santow JA.

2 SHELLER JA: I agree with Santow JA.

3 SANTOW JA:

INTRODUCTION

The appellant, Paul Stoker, unsuccessfully sought damages arising from personal injuries he suffered in the course of his employment successively with Allmen Industries Pty Limited (the second respondent and first defendant) and Adecco Gemvale Constructions Pty Ltd (the first respondent and second defendant). In each case, the appellant, as plaintiff, contended unsuccessfully that the employer in each case was in breach of its duty of care to provide a safe system of work resulting in the first case in a back injury and in the second case an aggravation of that back injury.

4 There were essentially two incidents both the subject of this appeal. The first occurred on 23 September 1997 when Mr Stoker was employed by Allmen Industries Pty Limited. It was occasioned when Mr Stoker in the course of his duties was required to shift boxes from pallets onto a scaffolding. The boxes needed to be carried by Mr Stoker to the scaffolding from some three to five metres away. They then required to be loaded by Mr Stoker by lifting and heaving them some two metres above the ground. Essentially, Mr Stoker’s allegation was that the employer was negligent in failing to provide either a ladder or hoist with the result that he was required to heave boxes weighing between fifteen to twenty-five or thirty kilograms onto a platform above his head, with consequent injury to his back. He failed on liability before the trial judge Twigg DCJ on this incident.

5 The second incident occurred after Mr Stoker had left Allmen Industries voluntarily in August 1999 and when employed by Adecco Gemvale Constructions Pty Limited as a construction hoist operator. It occurred in circumstances where he had disclosed to Adecco his prior lower back injury at the commencement of his employment. The injury constituted by the second incident occurred when Mr Stoker was performing certain manual operations which he described as heavy. These were in first operating a steel kick-plate by pulling a heavy chain and then by pushing heavy upper and lower counter-balanced metal doors in order to open and close them. Shortly after, on Saturday 11 December 1999, Mr Stoker complained of a pain in his lower back. It radiated down his right leg to his right foot when operating the hoist. Subsequently on 14 December 1999, after working for about one hour, he complained of significant pain in his back and groin again radiating down his right leg. He had problems operating the hoist and filled in an accident report. He failed on liability before the trial judge on this incident too.

6 The trial judge formed an adverse view of Mr Stoker’s credibility as a witness, stated that he adopted the submissions and reasoning of each of the defendants as earlier outlined in his judgment. He concluded that neither defendant had breached any duty of care; that both defendants had discharged their duty of ensuring there was a safe system of work and proper equipment and that the place and equipment were reasonably safe for a worker of Mr Stoker’s experience. He further concluded that “I am satisfied that the real cause of the Plaintiff’s ailments to his back are diagnosed properly by Dr Innes-Brown” (Red, 47G). The latter concluded in a report of 11 April 2002 as follows:

“The history and the findings disclose that this man is suffering from longstanding lumbar spondylosis, a degenerative condition due to constitutional factors and not work-related.

The incident at work in September 1997 when he was lifting boxes of heavy bolts was clearly a musculoligamentous strain injury, all effects of which, including any transient aggravation of his lumbar spondylosis, should have resolved within the matter of days or at the most a few weeks.

The onset of back pain in December 1999 was clearly also a musculoligamentous strain injury in the lumbar region and again all effects of that strain injury should have resolved within a short period of time.

His strain injuries were not causally related to his lumbar spondylosis with associated disc bulging but did serve to unmask the slowly progressive degenerative pathology in his lumbar spine which brought him to a laminectomy performed by Dr McGee-Collett in April 2000.” Blue, 2/11

APPEAL GROUNDS

7 The appeal grounds can be summarised as follows:

Stoker v Allmen Industries Pty Ltd

(a) Error in holding that there was no breach of duty of care where an employee was required to climb up scaffolding without a ladder or suitable lifting equipment, while carrying heavy boxes, thereby causing injury;

(b) Error in holding that employer had met the standard of a safe system of work;

(c) Error in holding there was an onus on the worker to call fellow workers and supervisors, where the employer elected to call no evidence;

(d) Failure to give any, or any adequate, reasons for his decision.

Stoker v. Adecco Gemvale Constructions

(e) Error in holding that there was no breach of duty by an employer where the employee had disclosed his lower prior back injury and where the employee was fit only for light work;

(f) Error in not considering unchallenged expert evidence that Mr Stoker was only fit for light work and not to operate a hoist;

(g) Error in failing to find that employer was obliged to further investigate the injury disclosed in the Questionnaire (Ex Z) prior to devising a safe system of work;

(h) Error of law in holding that Mr Stoker was obliged to complain about his system of work and that there was an onus on him to do so prior to establishing a breach of duty;

(i) Error in assessment of medical evidence when there was only one opinion that Mr Stoker had suffered a temporary aggravation of a pre-existing degenerative condition;

(j) Failure to give any, or any adequate, reasons for his decision.

SALIENT FACTS

The first incident

8 As at September 1997, Mr Stoker was employed by Allmen Industries and was working at the Canterbury Hospital in Sydney.

9 On 23 September 1997 Mr Stoker’s duties required him to shift boxes from pallets onto scaffolding some three to five metres away from the pallets. The boxes weighed approximately 15 to 30 kilograms and the first platform where the boxes were to be loaded was approximately two metres above the ground. Mr Stoker himself is about 170 cm tall.

10 Mr Stoker was supervised by Mr Dewhurst and was assisting a Mr Topping. He adopted the following procedure with respect to the lifting of the boxes:

(a) steadying box on his right shoulder with one hand, with his right hand supporting it;

(b) placing his left leg onto a lug in the scaffolding; and holding the scaffolding with his left hand, and

(c) placing the box on the platform by heaving it up.

11 At about 1.30 pm as he was lifting one of the boxes onto the platform, Mr Stoker felt pain in his lower back but carried on working until about 2 pm when he reported the incident to the first aid officer.

12 On the next day Mr Stoker attended the Newtown Medical Centre and was prescribed painkillers and was referred for an x-ray and recommended physiotherapy.

13 While undertaking the physiotherapy and rehabilitation Mr Stoker did return to work with Allmen Industries, but claimed that after the incident he avoided heavy lifting.

14 Mr Stoker left Allmen Industries voluntarily in August 1999.

The second incident

15 Mr Stoker applied on 30 August 1999 for work with Adecco Gemvale. His application disclosed his experience in the construction industry. He completed a “Health Questionnaire” which commenced as follows: “To assist us in placing you on assignments that you are capable of efficiently and safely carrying out please complete the following ....” (Blue, 2/102H). Then in answer to the question

“Have you ever had or have you now: ....

any back pain or strain”

he answered “Yes”.

16 He also answered “Yes” to the question “Have you ever had a work related injury?”, and in answer to the further question, “Type of injury?” responded “back” with the date “Sept 97” and identification of the company where he had been injured.

17 Moreover, in the employment application form completed on 30 August 1999 he answered the question, “Do you suffer from any illness of [sic] pre-existing injury?” he circled the answer “Yes” (Blue, 2/103S). The form went on to say, “If yes, please specify?” to which he responded “back problems”.

18 In answer to the next question “Have you had any Workers comp claims?” with the further question “If so, when?” his answer was “about two-three years ago only three days”.

19 I should mention finally that there is a safety awareness assessment form (Blue, 2/105 and 8) where Mr Stoker ticked the box that contained the answer to the question “when you have to lift something, should you”, the box provided “squat down, bend your knees and lift with your legs”, being one of four boxes between which the applicant had to choose. The respondent relied on that to show an awareness on the part of Mr Stoker of the correct lifting practice.

20 Returning now to the circumstances of the second incident, in December 1999 Mr Stoker was working as a construction hoist operator at a site in Bondi Junction, conducting men and equipment to upper levels of the building. The hoist he was using was about 10 to 15 years old. There is some dispute as to just how heavy the manual operations were, but not as to the operations themselves. Essentially they involved operating a steel “kick-plate” which is pulled from the horizontal to the vertical in order to allow the doors to open vertically. The doors were counter-weighted, so as one pulls one door down the other door goes up. The following passage of cross-examination bears on the degree of difficulty of that lifting process and indicates that it is not accurate to simply describe the lifting as a process of lifting a 30 kilogram kick-plate unaided:

“Q. I think you told us that you had worked on a number of jobs operating these lifts relieving people from time to time who were having breaks?

A. Yes.

Q. And it’s fair to say, isn’t it, that you were aware of the operation of these devices?

A. Yes.

Q. Not only had you operated them yourself you had on many occasions had occasion to utilise them?

A. Yes.

Q. And it wasn’t rocket science, was it, in terms of how these things worked?

A. No.

Q. Let’s just go to that and so that you recall yesterday I was previously taking notes when you were describing the operation mainly so I could understand you have the cage attached to a vertical support, correct?

A. Yeah, structure.

Q. And that has – is that put up by .. (Not transcribable) .. or is that on a cog drive?

A. Cog and you can get cable hydraulic.

Q. Cog drives are obviously safer, aren’t they?

A. I’m not too sure.

Q. In any event the internal doors unlike an office elevator open vertically rather than horizontally, is that correct?

A. That’s correct.

Q. But they’re counter weighted, counterbalanced, aren’t they?

A. Yes.

Q. So as one pulls down as one goes down the other one goes up?

A. Yeah, it works --

Q. So all you really need to do to get them open putting aside the kick plate for the moment is get it moving of course it’s momentum carries it up and carries it down, correct?

A. Yes.

Q. So the amount of physical exertion required to do that isn’t great, is it?

A. Well, it depends on the Alemac, some were easy and some weren’t.

Q. You had no cause to complain to .. (Not transcribable) .. or to Adecco about this particular machine that you had been operating for three weeks before?

A. No.

Q. So as far as you were concerned this was operating as it should operate?

A. Yes.

Q. The doors were operating as they should operate?

A. Yeah.

Q. And the way it worked was you the kick plate was hinged, wasn’t it?

A. Yes, it was fixed.

Q. Yes so that there was never an occasion that you actually had to physically lift the whole weight of the kick plate was there?

A. No.

Q. You only had to elevate it using the pivot point which was where it was fixed to the cage, correct?

A. Where it was fixed with a chain.

Q. With a chain. Yep. And what you do is you pull the chain which was what shoulder level?

A. No, it was on the floor.

Q. All right. You pull the chain – I see – and that would hinge it up, correct?

A. Correct.

Q. And that would allow the door, the bottom door if it was open .... assuming the lift was closed and you wanted to open it, you firstly have to pull up the kick plate?

A. Yes.

Q. And that would allow free travel of the lower door?

A. Free movement.

Q. Now of course once the kick plate was pulled up it got to the – a point close to the vertical, correct?

A. Yes.

Q. And once it was at that point close to the vertical there was very little weight to be held, wasn’t there, having regard to the nature of the pivot point?

A. Yeah.” (Black, 112J-114E)

21 Then in terms of the safety awareness assessment procedure to which I have made earlier reference, the following questions and answers are relevant:

“Q. And you know I think without having to be told and I think the safety awareness assessment confirms it that when you’re lifting something lower than your waist for example that the safe way to do that is to squat down, bend your knees and lift with your legs, correct?

A. Yes.

Q. And in fact on that very questionnaire you correctly ticked that box?

A. Yes.

Q. And I take it that being an experienced and sensible trades assistant you employed that technique?

A. No, you couldn’t with that machine.

Q. Couldn’t use your legs?

A. Because you couldn’t squat down and – it just wouldn’t be practical.

Q. When you said to pick up the --

A. The chain, yeah, when – it just wouldn’t be practical.

Q. Well, that’s the normal way of picking it up, isn’t it?

A. No, no, not a chain, it just wouldn’t be practical. I can show you in the motion.

Q. What, to get down to get the chain you would need to you would initially bend your knees to get the chain, correct?

A. Yeah, but you don’t squat down.

Q. Oh no, you – well you --

A. You bends your knees and you pull with your right – your left hand.

Q. Right. All right?

A. Yeah.

Q. And there is no reason why you when you were lifting the chain up initially that you wouldn’t bend your knees of course is there?

A. Well, yeah, you bends your knees but not squat down.

Q. All right But you can --

HIS HONOUR: Q. Let’s get that clear. What you’re saying is to the extent that the safety regulation required that you do lower the bottom part of your body--

A. Yes.

Q. --without fully squatting?

A. Yes.

Q. And did you do that on the occasion?

A. Yes.” (Black T, 114K-115J)

22 It will be apparent from this evidence that, in the absence of any ergonomics or other expert with appropriate expertise, one could not simply (i) impute a weight to the lifting, (ii) conclude that such weight was likely to put an unsafe strain upon someone with a previously injured back such as to cause more than a transient injury, and that (iii) taking the safety assessment precautions would have avoided such an accident in circumstances where it was practicable to bend but apparently not squat down and taking into account the engineering features of the doors and their counter-weighting.

23 The only reportedly expert evidence came from a Mr Ted Brincat. He was a civil engineer and licensed builder, with professional experience of some twenty-three years in the building construction industry and heavy engineering construction projects where he had worked as a project manager, contracts manager and project engineer as well as site supervisor. Mr Brincat’s report appears at Blue, 135. It is clear from his report that he had not inspected the actual hoist. He stated the “purpose of this report”. It was “whether it was reasonable to expect the Plaintiff to perform the repetitive reasonable [sic] heavy work in operating this hoist” and also “was there available at the time an alternative method of gaining access to the constructed building”; Blue, 136Q. That statement of his task presupposed that the work was reasonably heavy in operating the hoist. But it was not a matter upon which his expert opinion was specifically directed. Mr Brincat indicated that he was familiar with hoists of the type used; Blue, 137-8.

24 His conclusion as to alternative access was that the relevant hoist was the best and most cost effective means of transporting personnel and materials so that the issue was simply the nature of the work for a person in Mr Stoker’s disclosed condition so far as his back was concerned.

25 Under “operation of the hoist” the following was said by Mr Brincat:

“It is a requirement of AS 2550.7 that the Defendant was responsible to ensure that all personnel involved in the operation of the hoist had the necessary physical attributes to operate the hoist. Refer Clause 7.2.1 of AS 2550.7. ... (Blue, 139)

26 Then follows the hardly controversial statement that, “the operator of the hoist cannot operate the hoist unless they are physically and mentally competent”.

27 Finally, under “Summary” the conclusion is stated that “from the injury sustained by the plaintiff, it is my opinion that the plaintiff may not have had the physical attributes to operate the hoist.”; Blue, 140J [emphasis added].

28 Apart from purporting to state in conclusionary form an opinion which depended upon analysis of the safety of the relevant equipment for someone with the disclosed condition of the appellant, and failing to do so, Mr Brincat reaches no firm conclusion. What he says is essentially assertion without proper analysis.

29 To complete the sequence of events, Mr Stoker had worked on this kind of work for six days a week on a ten hour day with a twenty minute smoko at 9 am and 45 minute lunch break at 12.30 pm. It was on Saturday 11 December 1999 that Mr Stoker first felt a pain in his lower back which radiated down his right leg to his right foot. Nevertheless he continued to work that day and returned to work on Monday 13 December 1999 at 7 am. On 14 December 1999, after working for about one hour, Mr Stoker felt significant pain in his back and groin again radiating down his right leg. He had problems operating the hoist and filled in an accident report.

30 The next day Mr Stoker attended a general practitioner, Dr Scobie, who referred him for a scan with Dr McGee-Collett who prescribed him painkillers. He did not return to work.

31 On 4 April 2000 Mr Stoker underwent an operation at Ashfield Private Hospital for a lower lumber laminectomy, where decompression of the L5-S1 disc was carried out. This required hospitalisation for about six days and ongoing physiotherapy and pain management throughout 2000 and 2001.

32 Mr Stoker was unable thereafter to return to heavy work or work carried out previously but in November 2001, commenced light work at Foxtel. This did not involve any sitting or standing for long periods. The job involved locating tapes or cassettes when requested and making them available to an operator. Mr Stoker continues with this work to the present, now working a five day week of about 30-35 hours.

The first instance judgment

33 The trial judge, Twigg DCJ, delivered an extempore judgment on 14 August 2003. It was structured in general terms as follows: first, the trial judge set out the claims made by the plaintiff and the defences of each defendant, then he set out the circumstances of the first accident and the second accident. The trial judge then set out and considered the submissions of Adecco and Allmen, although with some considerable degree of overlap. Finally, the trial judge set out and considered the submissions of Mr Stoker, before ultimately stating his conclusion on liability, which was in the following terms:

“I adopt the submissions and reasoning of each of the defendants which I have outlined earlier in this judgment. In my view the defendants respectively have not breached any duty of care in discharging their duty to ensure that there was a safe system of work for the Plaintiff or that he had proper equipment and that the place and equipment were reasonably safe for a worker of the experience of the Plaintiff. The equipment was safe in each instance and properly maintained.” (Red, 46R-X)

34 The trial judge further stated his finding that the real cause of the plaintiff’s injury was the underlying degenerative back condition diagnosed by Dr Innes-Brown (Red, 47F-G). He also accepted the submissions made on behalf of both defendants that Mr Stoker had not in any case achieved the economic levels required by s151G-H of the Workers Compensation Act 1987, as they then stood, for damages to be awarded (Red, 41Q, 42Z-43D, 46R).

35 It is apparent from the judgment that the conclusions of Twigg DCJ were informed significantly by his findings as to the credibility of Mr Stoker, findings which proceeded from the submissions of both defendants. The judge dealt concurrently with the submissions of both Adecco and Allmen Industries on credibility, generally concluding that Allmen Industries’ submissions supported those of Adecco; (Red, 36G-I, V-37N, 38D-E). The trial judge’s ultimate findings were as follows:

(a) Mr Stoker was an unsatisfactory witness whose demeanour made clear he was unreliable in recalling the events in 1997 and following (Red, 46F-H).

(b) Mr Stoker’s evidence of the incidents was vague and unsatisfactory (Red, 46N) and sought to specify the injury arose from a particular incident of which he gave great detail (Red, 37V).

(c) The recollection in recorded reports made by Mr Stoker closer to the events is preferable to his oral account (Red, 46L-N).

(d) Mr Stoker was evasive when shown medical reports that showed matters contrary to his oral evidence (Red, 46J).

(e) Mr Stoker was determined to put forward an account which suited his claim for common law compensation (Red, 46O-Q).

Nevertheless, the trial judge noted that Mr Stoker’s accounts of the incidents were not contradicted by any evidence called by either of the defendants (Red, 43Y, 44C). Indeed he took the view that Mr Stoker’s case revolved around the contention that his evidence should be accepted because no evidence was put forward on behalf of the defendants to contradict it, and for that reason the credibility of Mr Stoker needed careful scrutiny (Red, 44K-P).

The first incident – liability of Allmen Industries

36 Although the trial judge to some extent collapsed into one his findings on liability with respect to the two separate proceedings, it is possible to extract findings with regard to each. The following findings of fact relevant to the liability of Allmen Industries can be extracted from the submissions of the defendant as adopted by the judge:

(a) Mr Stoker was working with Mr Topping at the time of the incident, but made no attempt to call him as a witness, even though he was readily available (Red, 37E-G).

(b) After the accident Mr Stoker attended the Newtown Medical Centre where he consulted Dr Khuu, but was given no treatment. Mr Stoker took Panadeine and continued to work. Although Mr Stoker said he had three days off after the accident (in late September 1997), he could not be sure that they were not in January 1998 (Red, 31F-M)

(c) Mr Stoker worked with Allmen Industries for a long period after the incident and made no complaint thereafter about the incident (Red, 46Y-47C).

(d) Mr Stoker resigned voluntarily from Allmen Industries and not because of any problem with his back (Red, 42K-L). (The transcript reveals that he ceased to work with Allmen about 2½ years after the incident; Black, 18F.)

(e) There was no impact of the 1997 incident upon Mr Stoker’s working capacity (Red, 42W).

(f) Mr Stoker’s oral evidence as to how he was injured and his medical history is inconsistent with that shown in the exhibits made closer to the time (Red, 36C).

(g) Mr Stoker’s injury was in fact caused by longstanding lumbar spondylosis, a degenerative condition which was not work related (accepting the report of Dr Innes-Brown) (Red, 42N-T).

37 The trial judge held that there was no breach of any duty of care by Allmen Industries in the circumstances. The trial judge also appears to have concluded against Mr Stoker on the issue of causation, leading him to the conclusion that Mr Stoker had failed to make out his cause of action. These findings were based significantly on the trial judge’s assessment of Mr Stoker’s credibility.

The second incident – liability of Adecco

38 The trial judge had more to say with regard to the liability of Adecco. The following are the findings of fact relevant to the liability of Adecco which can be extracted from the submissions of the defendants as adopted by the trial judge:

(a) Mr Stoker was an experienced operator of the hoist and the equipment was safe and properly maintained (Red, 35U).

(b) Mr Stoker’s oral evidence as to how he was injured and his medical history is inconsistent with that shown in the exhibits made closer to the time (Red, 36C).

(c) Mr Stoker had had longstanding history of lower back problems pre-dating both accidents (Red, 36J).

(d) Mr Stoker had considerable experience in construction and actual experience in operating this particular type of hoist (Red, 40V-W).

(e) Mr Stoker did not complain over the three weeks of his employment carrying out the task with the hoist (Red, 40X).

39 The trial judge then stated his conclusions on liability, which again boiled down to a finding that Mr Stoker had not made out his onus of proof. In particular the trial judge rejected the sufficiency of the evidence of Mr Brincat to establish that the system of work was unsafe. The following findings can be extracted from the submissions of the defendants as adopted by the trial judge.

(a) It is for Mr Stoker to prove that the injuries were caused by the fault of the defendant in some way that shows a breach of duty (Red, 45Z-46C). This would involve him calling evidence to show that safe equipment (the hoist) was not provided and that the system of work was not safe (Red, 45O-V).

(b) There is no evidence that Mr Stoker was exposed to a risk of injury that he could not avoid by reasonable care (Red, 35S). The evidence of the expert Mr Brincat as to the adequacy of the hoist must be rejected since he had not even sighted the particular hoist (Red, 39B-F).

(c) There is no evidence that the hoist was unsafe or not properly maintained or that the system of work was inappropriate (Red, 39I-M). The expert’s opinion that Mr Stoker did not have the physical attributes to operate the hoist cannot be accepted, since the expert did not have the necessary expertise in medical or ergonomic matters (Red, 39R-W).

(d) Mr Stoker did not make Adecco Gemvale sufficiently aware of his medical history in relation to his back (Red, 39Y). The law does not require an employer to check from workers’ previous employers as to any potential problem for manual work from the information provided by Mr Stoker (Red, 40E-G).

(e) Adecco Gemvale did not call evidence to show any enquiries made once they had knowledge of a prior injury, but the only inference that can be drawn is that there is nothing that could have advanced their case (Red, 45G-I).

(f) There is not sufficient evidence to support a breach of duty as alleged by Mr Stoker (Red, 41C-E).

(g) Causation is not established, as the evidence shows that Mr Stoker had an underlying and pre-existing condition which merely flared up while he was working with Adecco Gemvale (Red, 41H-L). Further, it is of the nature of underlying back conditions to worsen over time (Red, 41M).

DISPOSITION OF THE APPEALS

40 The first instance judgment in this case tends to conflate the two claims and in simply adopting the totality of the submissions of the defendants the reasoning in respect of the two claims is difficult to differentiate. A significant complaint raised in the amended Notice of Appeal with respect to both claims is that the trial judge failed to give any, or any adequate, reasons for his decisions.

41 It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.

42 In this case, the general complaint of Mr Stoker is that the trial judge’s approach in setting out the submissions for each party and then adopting the submissions of the defendant companies did not disclose an adequate process of reasoning, in that it did not make specific explicit findings about the relevant issues. However, I do not agree that adopting the submissions of one party over another necessarily constitutes inadequate reasoning. It will depend upon the nature of the case and the content of the submissions actually made. It is significant that in this case, the respondent companies did not seek to deny that the incidents complained of occurred. Rather they denied that any legal consequences attached to those incidents. The respondents here did what a defendant is always entitled to do, namely, to put the plaintiff to proof on the balance of probabilities. The net effect of their submissions, ultimately adopted by the trial judge, was that Mr Stoker had not proved his case. Combined with the specific findings on credit, this means that acceptance of those submissions may amount implicitly to a finding by the trial judge to this effect: “having regard to the evidence put before me, I am not satisfied on the balance of probabilities that the plaintiff has suffered loss by reason of any act or omission of the defendants”.

43 A new trial is not automatically required just because a statement of reasons is inadequate: Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 at [31] per Giles JA (with whom McColl JA and Bergin J agreed), referring with approval to the comments of Meagher JA in Beale (supra) at 444. Meagher JA had this to say about the results of inadequate reasoning:

“It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered.”

Meagher JA then went on to say:

“Lastly, it is noted that an appealable error arising from inadequate reasons does not necessarily mean that a new trial is required. An appeal court is entitled to consider the matter and, if appropriate reasons are given, may itself decide the matter. Thus, if the only conclusion open on the evidence available at trial was the conclusion reached by the trial judge, then, notwithstanding an inadequate statement of reasons, the matter need not go to a new trial.”

If no miscarriage of justice can be said to have occurred, there is no reason to send the matter back for a retrial.

44 Bearing this in mind, I now turn to resolution of the specific issues in these appeals, dealing with them separately in chronological order.

Stoker v Allmen Industries Pty Limited

45 I have earlier set out the grounds of appeal relied on with respect to the claim against Allmen Industries. This is one of those difficult claims where the Court is asked by a plaintiff to draw a common sense conclusion from extremely sparse evidence.

Facts and evidence

46 The first matter to consider is the alleged incident itself. The only direct evidence of the alleged incident came from Mr Stoker. The trial judge as I have said was extremely critical of his oral evidence. It is not suggested that it was not open to the trial judge to form an adverse impression of Mr Stoker’s credibility and place more reliance on contemporaneous reports than on his oral evidence.

47 Those contemporaneous reports were relevantly as follows. First, the employee’s compensation claim form, dated 29 October 1997, recorded that the circumstances of the injury were as follows: “lifting heavy boxes & steel, after a few days starting to fell pain in lower back” (Blue, 2/4).

48 Second, the report of Dr Stening (the specialist to whom Mr Stoker was referred by Dr Khuu of the Newtown Medical Centre) of 3 November 1997 based upon his notes of consultation on 27 August 1997 (Blue, 2/20) is significant. In that report, Dr Stening sets out Mr Stoker’s account of his back troubles:

“He has had back pain on and off and he says that his work involves a lot of manual work and lifting. Over the last 3-4 weeks after no specific incident he found that he could not bend over. He did not lose time from work but was transferred to light duties.” (Blue, 1/61)

49 The next account of the injury is contained in the 15 January 1998 report of the physiotherapist Penny McBride of the Centre which treated Mr Stoker from 4 December 1997 onwards:

“He described an incident on the 23 September 1997 when he was carrying boxes of bolts weighing approximately 20-30 kilograms. At that time he felt pain like a pulling sensation. He continued to work on full duties for another 6 weeks whereupon he went to see his doctor.” (Blue, 1/84)

50 This is the first description of an account by Mr Stoker of the specific details of the alleged incident, coming almost 4 months after the incident.

51 I set out the above evidence because it is not immediately clear from the judgment whether the trial judge accepted Mr Stoker’s evidence that the alleged incident had actually occurred as alleged. Although Mr Nock, SC of counsel for Allmen Industries appeared to concede that the trial judge accepted that “something” had occurred and indeed that something did occur, I did not understand him to be conceding all the particulars of Mr Stoker’s account of the injury. Though the trial judge recounts what appears to be a narrative as to how the injury occurred (Red, 30E-31E) it is simply unclear whether this constituted a finding of fact or not. If it was a finding of fact, it sits uneasily with the judge’s later adverse credibility findings in which he expresses a preference for the contemporaneous written reports over Mr Stoker’s oral evidence, to which I have already referred. It would also sit uneasily with the following passage from the judgment:

“Generally the plaintiff added to his description of the site in a vague and imprecise way, particularly as to the extent of steel pipes lying on uneven ground, the description of the scaffolding, the estimated weight of the boxes and particularly what he had told doctors in histories as to how the incident occurred.” (Red, 37X-38C)

It must be recalled that, apart from the brief reference in the physiotherapists report made some 4 months afterwards, it is only Mr Stoker’s oral evidence (of which the trial judge was sceptical) and reports made later in time to medico-legal practitioners that sets out the detail of the alleged incident which brought about the onset of pain.

52 Considering these features of the judgment, the conclusion becomes irresistible that several crucial factual issues remain either undetermined or determined adversely to Mr Stoker. First, the trial judge makes no clear finding as to the weight of the boxes that Mr Stoker was lifting. In his narrative of events, the weight is variously referred to as “about 15 kilograms” and “between 20 and 25 kilograms” (Red, 30V-Y). Importantly, there is little other evidence that can corroborate the weight of the boxes apart from the physiotherapist’s report, in turn emanating from Mr Stoker and referring to yet another range of “20 to 30 kilograms”. Still another range of 10 to 15 kilograms is mentioned in the report of Dr Sammut-Paul of 18 October 2001 (Blue, 2/70). Second, the trial judge made no clear finding on the crucial matter of the height of the scaffolding. Again, Mr Stoker provided the only evidence of this matter, and the trial judge did not accept him as an accurate historian.

53 In my judgment, the better view is that the net effect of the comments by the trial judge amounts to a finding that the incident did not occur as Mr Stoker alleged it to have occurred. One thing is reasonably clear – the findings were credibility based findings which should not be set aside in the absence of facts incontrovertibly established by the evidence or unless glaringly improbable, given there is no evidence that the trial judge palpably misused his advantage in seeing and hearing Mr Stoker give evidence: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, Devries v Australian National Railways Commission (1993) 177 CLR 472.

54 The facts in this case are somewhat similar to those in Devries (supra), though in that case, the trial judge upheld the plaintiff’s claim relating to an injury sustained to his back while working for the defendant. The trial judge expressly accepted the plaintiff’s account in oral evidence of the events leading to the injury even though that account was inconsistent with statements made in reports filled in shortly after the accident. The basis for accepting the plaintiff’s oral report was the trial judge’s assessment of the plaintiff as a truthful and reliable witness. The Full Court of the Supreme Court of South Australia reversed the trial judge’s decision, holding that the inconsistencies were so great as to throw grave doubts on the sworn testimony as to require the conclusion that the plaintiff had failed to establish that the incident had happened as he had sworn. The High Court restored the trial judge’s decision. Brennan, Gaudron and McHugh JJ stated:

“No doubt the inconsistencies between the plaintiff’s out-of-court statements and his evidence at the trial were matters which might make a tribunal of fact hesitate to accept his evidence. But the trial judge had the great advantage of seeing the plaintiff in the witness box over several days. This gave the trial judge an incomparable advantage over an appellate court in determining what reliability could be placed on the sworn evidence having regard to the out-of-court statements of the plaintiff.” (at 478-9)

55 I interpose that the same could be said in this case; it is just that the trial judge here came to the opposite conclusion as to the reliability of Mr Stoker. In Devries, Brennan, Gaudron and McHugh JJ continued:

“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.” (at 479)

56 This reasoning, one would think, equally applies to a refusal by a trial judge to make a finding of fact as sought by the plaintiff. In this case the trial judge was not satisfied that the factual basis of Mr Stoker’s cause of action in negligence had been established. That, clearly enough emerges, though he does not engage with the particularities of the issues in any detailed reasoning.

57 I do not think that it can be said that the trial judge was bound to accept matters as recounted by Mr Stoker upon whom the onus fell merely because no specific evidence was adduced to the contrary. A tribunal of fact is bound to weigh the reliability of evidence adduced before it. That is the point of the requirement in law that the plaintiff make out an onus of proof to a certain standard. True it is that Mr Stoker adduced his own evidence of the alleged incident leaving it to Allmen Industries to adduce any evidence to the contrary either directly or elicited in cross-examination. Now Allmen Industries did not call any positive oral testimony to contradict Mr Stoker’s account. But the whole thrust of its cross-examination of Mr Stoker was to call into question his account of how the injury had occurred (see especially Black, 66-67). It challenged him as to his history of the incident that occurred given to doctors shortly after the alleged incident and his failure to give the history of an incident to other doctors. Mr Stoker provided no adequate response to these challenges. In those circumstances I do not think that the trial judge was wrong to conclude as he did. His findings were substantially credibility-based. It has not been shown that he misused his advantage.

Common sense and legal liability

58 What is therefore left is a case where the only facts as proven are essentially that Mr Stoker suffered injury to his back after lifting heavy loads while at work. Mr Stoker gave evidence in cross-examination that he knew of the appropriate procedures for lifting and carrying heavy goods (Black, 56X-57E, 59V-60H, 92Y-93X). No further particulars beyond the carrying of heavy objects have been established – in particular, the ‘system of work’ involved has not been established with any degree of particularity. However the mere fact that “something” occurred at work, after which time Mr Stoker suffered injury, will not be sufficient to establish negligence on the part of the employer.

59 Mr Stoker’s case was that the system of work was inherently unsafe, and he invited the Court to find essentially as a matter of common sense that there had been negligence on the part of Allmen Industries. However, in the absence of proof that a certain system existed, the mere system of carrying heavy boxes is unlikely to move the common sense of the tribunal of fact to the conclusion that there was negligence on the part of the employer. This is not a case of res ipsa loquitur. Common sense aside, the fact that an employee sustains injuries while performing work tasks does not ipso facto prove that the employer has failed to fulfil its standard of care in providing a safe system of work and equipment: Bankstown Foundry Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301. Allmen Industries submitted that Mr Stoker had proved to the satisfaction of the trial judge only that he had suffered injury while at work on 27 September 1997, and that there was no evidence to prove anything more. I accept that submission.

60 It is true, as Taylor and Owen JJ stated in Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1962) 108 CLR 362 (at 368), that “in many cases no more than common knowledge, or perhaps common sense, is necessary to enable one to perceive the existence of a real risk of injury and to permit one to say what reasonable and appropriate precautions might appropriately be taken to avoid it”. But that statement posits the existence of a sufficiently established factual basis upon which common sense can be brought to bear. Taylor and Owen JJ went on to say:

“...[I]n order to enable an injured workman to recover damages from his employer the evidence must be such as to justify a finding of negligence on the part of the employer and, if the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the workman to risk of injury. In other words, it must appear that the employer failed ‘to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation’ : see Per Lord Tucker in General Cleaning Contractors Ltd v Christmas. Whether or not there has been such a failure on the part of the employer may, in some cases be resolved, by the application of common knowledge; in others it may be necessary to show a departure from long-established practice in the type of work under consideration or by showing that an appropriate method which would eliminate or minimize the risk was reasonably available.” (at 369) [emphasis added]

See also NSW Land & Housing Corporation v Watkins [2002] NSWCA 19; (2002) Aust Torts R 81-641 per Heydon JA at 68,415ff.

61 In this case, it is indisputable that a system of work requiring Mr Stoker to lift relatively ‘heavy’ objects might expose him to a risk of injury of the kind ultimately sustained. But this has only been shown as a matter of possibility, not established probability. What is not apparent – and cannot be found on the facts as accepted by the trial judge – is that this has been shown as a matter of probability to have unreasonably exposed Mr Stoker to that risk of injury. Confronted with boxes possibly ranging from 15 to 30 kilograms in weight, to be carried an uncertain distance to scaffolding of an uncertain height, I do not accept that appeal to common sense or knowledge of the tribunal of fact actually advances matters.

62 The trial judge simply concluded that there had been no negligence. Given the circumstances as I have described them including the unsatisfactory expert evidence I am not satisfied that the trial judge’s conclusion was in error. It simply follows as a matter of course from his credibility-based findings. Grounds 1 and 2 of the appeal must therefore fail. They do so for the reason they allege the trial judge erred in concluding that there was no breach of duty of care “in circumstances where appellant was required to climb up scaffolding without a ladder or suitable lifting equipment to carry and haul large steel bolts on his shoulders and heave the same onto the required level”. Those circumstances, as I have said, were not established before the trial judge with sufficient precision for an inference of negligence to be drawn.

63 Neither party called evidence from Mr Dewhurst or Mr Topping who were, as far as is known, the only witnesses to the alleged system of work which gave rise to the incident. To the extent that the trial judge referred to the failure of Mr Stoker to call evidence from Mr Topping or Mr Dewhurst he was highlighting the evidentiary inadequacies in the plaintiff’s case. Contrary to Ground 3 of the Allmen Industries Notice of Appeal, I do not consider that the trial judge held that there was an onus upon Mr Stoker to call fellow workers and supervisors where the employer elected to call no direct oral testimony. The failure to call them may in one sense have contributed to the failure of the plaintiff at trial to make out his onus of proof, but the trial judge did not impose an onus on Mr Stoker to call them. Ground 3 must fail. In so holding I am mindful of the well known principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that in appropriate circumstances an inference otherwise capable of being drawn may be strengthened by the failure by a party to call evidence, on the basis that the uncalled evidence would not have assisted that party’s case on the issue. In this instance, even were it the case that nothing said by either Mr Topping or Mr Dewhurst could have assisted Allman Industries as the employer in resisting the evidence of Mr Stoker as to the system of work and the circumstances of the accident, there was nonetheless ample evidence in the form of the medical reports and the cross-examination of Mr Stoker as to his prior inconsistent reports of the incident (both referred to supra), to negate the effect of any adverse inference so drawn. I consider that the findings of fact by the trial judge should not be disturbed on this basis.

64 Given the above conclusions, it is unnecessary to consider in relation to the claim against Allmen Industries questions which arise from Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 as explained in Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, and Shorey v PT Ltd [2003] HCA 27; (2003) 77 ALJR 1104 at 1111 per Kirby J. This is whether the defendant discharged its evidentiary onus of disentangling the causative effect of the incident and negligence from the pre-existing back condition from which Mr Stoker suffered. It suffices to say that the report of Dr Innes-Brown (Blue, 2/7) does seek to separate the effects of the incident from the pre-existing lumbar spondylosis. Dr Innes-Brown was of opinion that the incident resulted in “a musculoligamentous strain injury, all effects of which including any transient aggravation of his lumbar spondylosis, should have resolved within a matter of days or at the most a few weeks.” (Blue, 2/11).

65 It is open to question whether this report satisfies the requirement that the defendant adduce evidence of the pre-existing condition of sufficient cogency or precision as to the nature and probable future development and progress of the pre-existing condition. I note that Mr Stoker asserts that there is contrary medical evidence in the report of Dr Davies (Blue, 2/66). The trial judge did not seek to reconcile the differences between them or give reasons for preferring one over the other. Nevertheless, given the evidence of Dr Innes-Brown, it would appear to have been open to the trial judge to come to the conclusion that any prima facie inference that the incident was causative of the injury was thereby negated. However, as I have said, the trial juge’s view, stated without much in the way of explicit analysis, that the real cause of the injury was as diagnosed by Dr Innes-Brown does not really engage with that issue in relation to the claim against Allmen Industries.

Adequacy of reasoning

66 The judgment, while failing to do much more than accept the submissions of the defendant/respondent did articulate that Mr Stoker failed because he had not made out his onus of proof, a conclusion which the paucity of supporting evidence justified. The judgment does indicate, albeit without great clarity, the basis upon which it was made. In coming to that conclusion, the trial judge does engage with the evidence of the plaintiff, and the reports of Dr Stening and the other medical practitioners. If the trial judge had been satisfied of the essential particulars of the defective system of work alleged, more would have been required. The trial judge would have been under a duty to engage in explicit analysis along the lines of the calculus of negligence prescribed by Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. As I have said, the breadth of the requirement to give reasons varies according to the nature of the issues involved in the case.

67 It follows from the above, it cannot be said that the trial judge was in error with respect to the Allmen Industries claim. Ground 4 of the appeal cannot therefore succeed. I should add that even if I were of opinion that the reasoning were inadequate, I would not have remitted the matter to the District Court for redetermination, as I do not think that a miscarriage of justice has occurred in the sense referred to by Meagher JA in Beale (supra) and Giles JA in Zhang (supra).

68 The appeal in respect of the claim against Allmen Industries must therefore be dismissed with costs.

Stoker v Adecco Gemvale Constructions Pty Limited

69 I have already made mention of some of the deficiencies in the trial judge’s approach to both claims and have previously set out the grounds of appeal in the claim against Adecco. In particular, Mr Stoker makes the same complaint I have earlier referred to with regards to the adequacy of the reasons provided by the trial judge.

70 Essentially Mr Stoker mounts a two-pronged case, grounded on both a general duty and a particular duty. First he claims that the task of operating the kick-plate in the hoist was inherently unsafe in that the employer ought to have appreciated there was a reasonable risk of injury therein and guarded against it. Second, Mr Stoker claims that the system of work was unsafe given his previous back condition, and that the employer was negligent in requiring him to perform such a task having regard to its prior notice of those back problems. On appeal, Mr Stoker claims that in both those circumstances the trial judge was wrong not to find breach of duty.

Was the system of work inherently unsafe?

71 The first prong of this attack can be readily dealt with, as it is essentially confronted by the same difficulty attending the claim against Allmen Industries. Mr Stoker’s argument rests on the premise that the system of work in repetitively operating the kick-plate on the hoist carried a reasonably foreseeable risk of injury which ought to have been guarded against by the employer. The trial judge made no finding of fact as to the weight imposed on Mr Stoker by the operation. Again, there was simply insufficient evidence to make those critical findings of fact, which would render such a conclusion open on the evidence when it was otherwise not self-evident. I have previously canvassed the state of the evidence with respect to the weight of the operation, and stated my view that the report of the purported expert witness, Mr Brincat, was to all intents and purposes relatively useless in the relevant inquiry. Neither before the trial judge or this Court was there a sufficient basis in evidence for drawing the conclusion sought by Mr Stoker. I note here for completeness that Mr Stoker accepted in cross-examination that he had prior personal experience in operating and using construction hoists, and had been instructed on how to use this particular hoist (Black, 126L-W).

72 Again this claim transforms into one where the appellant seeks the Court to draw a common sense conclusion from too sparse an evidentiary basis. As with the Allmen Industries claim, the evidence is just not sufficient to establish that the system of work in operating the kick-plate mechanism of the hoist was inherently unsafe or that it unreasonably placed the workman at risk of foreseeable harm. This, I think, is sufficient to dispose of the first prong of Mr Stoker’s attack.

73 This case differs from the Allmen Industries claim only insofar as I doubt whether the application of common sense alone would in this case be enough for a tribunal to determine whether the system unreasonably exposed the workman to the risk of injury: contrast Neill (supra) in the passage cited. To that extent Mr Stoker faced a bigger hurdle in establishing liability in respect of this aspect of his claim against Adecco. The concluding submission of Adecco at trial, as accepted by the trial judge was that “none of the particulars of breach of duty of care are supported by the evidence to the extent that the Court could come to the conclusion that there have been no breaches of duty of care.” (Red, 41C-F). The trial judge could have come to no other conclusion. It was not shown that to an ordinary worker used to heavy work (or whatever type of work it was), there was an undue risk of injury such as would cause a reasonably prudent employer to take steps to guard against it.

74 Therefore, and for essentially the same reasons as I have outlined in relation to the claim against Allmen Industries, the trial judge’s reasoning while suffering the shortcomings identified, still sufficiently disclosed the basis upon which the conclusion was reached and that, in any event, a new trial is not warranted, there being no miscarriage of justice. The first prong of Mr Stoker’s challenge alleging breach of the general duty of care must fail.

Was it negligent to require Mr Stoker to operate the hoist?

75 I turn now to the second prong of Mr Stoker’s claim: that it was negligent of the employer to require him to operate the hoist, given its knowledge of his prior back condition. This argument rests upon the proposition that Adecco knew or ought to have known by inquiry it should have made of Mr Stoker’s susceptibility to the aggravation of the previously asymptomatic degenerative condition from which he suffered.

76 To my mind, the primary complaint of Mr Stoker is that the trial judge simply does not appear to have turned his mind to whether in the circumstances Adecco was under a particular duty given its knowledge of his prior back problems. The trial judge adopted the submissions of Adecco on this point that “the law does not require an employer to check from workers’ previous employer any potential problem for manual work from the information given by the plaintiff as set out in this instance” (sic) (Red, 40E-H). In respect of this part of Mr Stoker’s claim the trial judge’s approach may well have been deficient in its reasoning, a point to which I shall return. I merely note at this juncture, as I have previously stated, that a failure to give adequate reasons will not necessarily compel a new trial where no miscarriage of justice can be said to have occurred. Further, bearing in mind the expense and difficulty involved in new trials, and the fact that appeals under s75A Supreme Court Act 1970 are by way of rehearing, this Court can determine the matter for itself if it is in as good a position to come to a proper decision as the trial Court.

77 It is well settled that an employer owes a duty to each employee as an individual, and must take into account any special weakness or peculiarity of the worker of which it knows: Paris v Stepney Borough Council [1950] UKHL 3; [1951] AC 367. It is clear that the gravity of the risk to a particular employee and the knowledge of the employer will affect what steps must be taken by the employer to comply with the duty to take reasonable care. I pause to note that the decision in Paris v Stepney Borough Council deals with the situation where the employer has actual knowledge or the means of knowledge of the particular vulnerability of the employee, and does not deal with the question of duty to obtain such knowledge: see Finn v The Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29 at 36 per Thomas J. It is appropriate in this context to cite comments of Manning J in Pitsiavas v John Lysaght (Aust) Pty Ltd [1962] NSWR 1500, though strictly obiter:

“In my opinion there is no basis for imposing upon the employer the additional burden of taking care not to expose a particular employee to risks resulting from his inherent weakness. His duty is to act with reasonable care to protect his employees from unnecessary risk. He is not required to inquire into the question as to whether each labourer employed by him may be unfit for the work involved by reason of some constitutional defect or weakness.” (at 1504)

78 In Finn (supra) at 41, Williams J (with whom McPherson JA concurred) noted that this principle was too broadly stated insofar as it should be limited to situations where the employer had knowledge or the means of knowledge of the susceptibility. Nevertheless, Williams J considered it, with that qualification, to be good law. Finn stands for the proposition that unless some fact, circumstance or state of affairs existed which should put an employer upon special enquiry, there is no duty at common law to interrogate either prospective or existing employees as to their health and medical history: see Bailey (by his next friend Bergin) v Baltoro Holdings Pty Ltd (WASC Full Court, 25 September 1998, unreported), Blackman v Commonwealth (1978) 20 ACTR 33.

79 Accordingly, the critical question is whether any fact or circumstance should have alerted Adecco to any need for further inquiry as to Mr Stoker’s state of health. Mr Stoker placed great reliance in this regard upon two pieces of evidence, to which he says the trial judge did not have proper or any regard (this being a point relevant to the adequacy of reasons, to which I return later). These pieces of evidence were, first, the Employment Application Form (Exhibit 2D11, Blue, 2/103), in which Mr Stoker disclosed that he had suffered from “back problems”. Second, there was the Health Questionnaire filled out by Mr Stoker before he commenced work with Adecco (Exhibit Z; Blue, 1/126 apparently identical to Exhibit 2D10, Blue, 2/102). In that questionnaire he ticked the box that he had suffered in the past from “back pain or strain”.

80 Both of these documents were filled out at the end of August 1999, when Mr Stoker applied to work with Adecco. I have already excerpted the relevant parts of both these documents. They give no further substantive detail of the injury apart from the approximate date and identification of his then employer. No evidence was adduced by Adecco as to what, if any, inquiries it had made as a result of these documents. The trial judge correctly stated that the only inference that is available from this is that there was nothing that could have advanced Adecco’s case in relation to those matters (Red, 45G-I). The question is whether these constitute facts or circumstances that should have alerted Adecco to the need for further inquiry.

81 This case is distinct from the situation in Finn. In that case, the worker had previously had lung infections and surgery which rendered him particularly susceptible to a rare disease known as aspergillus fumigates, contracted by exposure to certain organisms which are commonly found in soils. The danger of infection to a normal person was negligible. The worker applied for employment as a school groundskeeper, answering “No” to a question on the application form querying any noteworthy disabilities. In the event, the worker contracted the disease and claimed breach of duty by the employer to make inquiries as to his state of health, and thereby breach of duty of care in guarding against the additionally serious risk which would have thereby been revealed.

82 The Full Court of the Supreme Court of Queensland reversed the verdict for the plaintiff obtained at first instance. Thomas J (with whom McPherson JA agreed and Williams J generally concurred) held that there was no duty on the employer to further interrogate the employee, having received the answer “No” to their initial inquiry. It is important to appreciate the significance of the “No” answer in conjunction with the common assumption of both worker and employer that he was fit for the type of work contemplated.

83 In the present case, Adecco did not receive a “No” answer to the inquiries made on the papers. In fact, the Employment Application disclosed “back problems” and the Health Questionnaire provided further details regarding the place and time of previous back injury, and the name of the employer at the relevant time. It may be that the responses given did not by any means provide full or frank disclosure. But the relevant question as formulated in Finn and Bailey (supra) is whether there is any fact or circumstance which should have alerted a reasonable employer to any need for special further inquiry into the medical condition of the worker. The proclaimed purpose of the Health Questionnaire was “to assist us in placing you in assignments that you are capable of efficiently and safely carrying out” (Blue, 2/102). What would be the point of requesting the particulars of work-related injuries if not to enable inquiry to be made where possible? In these circumstances, it is difficult to accept that there was no fact or circumstance which would put a reasonable employer on notice of the need for further inquiry. If that were so, one might be tempted rhetorically to ask whether a duty to make further inquiries will only arise where the applicant arrives for his job interview with a neck-brace and walking-stick.

84 I therefore conclude that Adecco should have been alerted to the need for further inquiry as to Mr Stoker’s medical history. That, however, is not the end of the matter. It must not be forgotten that the principle arising out of Paris v Stepney Borough Council applies to the question of what level of risk is reasonably to be anticipated by an employer having knowledge of the worker’s condition. It does not relieve the appellant as plaintiff of demonstrating that the system of work did contain an unreasonable risk for a person with his or her characteristics. The failure to make inquiries does not automatically mean that the employer has breached its common law duty of care to the employee. That result would only follow where the inquiries would have revealed to the reasonably prudent employer such information as would have prompted it to conclude that the risk to the particular employee was such that it was unreasonable to require him to perform the particular task in question.

85 In this case, what would inquiry have revealed? Mr Kennedy of counsel for Mr Stoker submitted that had Adecco made proper inquiry it probably would have ascertained that he had a degenerative state in his spine that was susceptible to injury and disability. It should be noted in this respect that Mr Stoker conceded in cross-examination that he was, naturally enough, concerned not to be too forthcoming about previous back problems lest that prejudice him in obtaining jobs with various host employers that Adecco might place him with (Black, 110C-F). Nevertheless, since it does not appear that inquiry was made and assuming in favour of Mr Stoker that all currently available medical information would have been disclosed, Adecco would have known:

(a) Dr Stewart’s report of 8 October 1997, that at L4/5 there is minimal disc bulging and narrowing of both posterior joints, whereas at L5/S1 there are gaps between the discs indicating it was degenerate, as well as annular bulging with a more localised central protrusion posteriorly (Blue, 1/50).

(b) Dr Markell’s report of 2 October 1997 that there is evidence of degeneration at the L5/S1 disc (Blue, 1/90).

(c) Dr Stening’s reports of 3 November 1997, 3 December 1997 and 4 March 1998 (Blue, 1/61-63). In the first report, Dr Stening diagnosed a broad calcified L5/S1 disc protrusion towards the right and a milder such protrusion at the L4/5 level and recommended Mr Stoker to continue on light duties at work. The second report recommended physiotherapy noting that the symptoms had eased somewhat but Mr Stoker still got tight in his back and got cramps in his right leg when he performed the heavy work he was currently doing. In the third report, Dr Stening noted that Mr Stoker was currently pain-free, but apart from 3 days off the previous month he was trying to continue with light duties at unreduced hours.

(d) Active Physiotherapy report of 15 January 1998 (Blue, 1/84-5), disclosing that Mr Stoker initially complained of a central dull ache with occasional right lateral thigh pain, the aggravating factor for which was bending and a direct turn into upright standing. The report stated that although he was feeling some improvement, Mr Stoker finds it difficult to avoid lifting or bending at work.

(e) Mr Stoker was certified by the doctor as fit for full duties about 4 or 5 months after the September 1997 incident (I deliberately leave aside the vexed question of whether Mr Stoker in fact returned to heavy duties).

86 That information is consistent with the existence of a degenerative spinal condition and perhaps by inference susceptibility to back pain and injury, but also with the fact that such a condition had not hitherto prevented Mr Stoker from working full duties as a trades assistant in the construction industry. Furthermore, nothing would have appeared as to the seriousness of the degenerative spinal condition, or its current prognosis. Common sense tells that it is of the nature of degenerative spinal conditions to worsen over time, but that does not of itself suggest what level of work the person is safely capable of nor provide any insight as to particular risk factors or how serious those risk factors were. That knowledge in and of itself certainly does not determine the question of whether it was unreasonable of Adecco, cognisant of his greater risk, to assign to Mr Stoker the task of operating the hoist, or whether Adecco should have taken some reasonable steps which would have guarded against the risk.

87 The real question is whether this job of operating this hoist contained an unreasonable risk of injury to a person with a back problem. It is at this point that Mr Stoker’s claim again confronts what is to my mind the overarching difficulty with his claim and the present appeal. Common sense aside, there is just insufficient evidence for the Court to make the necessary finding upon which negligence is predicated. I have already considered the evidence with respect to the weight of the operation and the value of Mr Brincat’s evidence. I have found the trial judge was right to reject the evidence of Mr Brincat insofar as he asserted that Mr Stoker may not have had the physical attributes to operate the hoist. I need not further repeat my earlier remarks on that issue. Mr Stoker relied upon the opinion of Dr Middleton of 12 March 2001 (Blue, 1/36N, 39U-Y) as expert evidence that the sort of task involved with the operation of the hoist could result in aggravation of a pre-existing degenerative spinal condition. That opinion, even if accepted (and I note that it is inconsistent with the opinion of Dr Innes-Brown (Blue, 2/11S-V)) does not answer the question, though it may be relevant to causation and foreseeability.

88 It is of course trite law that the existence of a reasonably foreseeable risk though necessary, is not determinative of negligence. There is simply no evidence to suggest that the kick-plate and chain operation was one such that it would be unreasonable for an employer to require a worker in the position of Mr Stoker to perform it. How can the response of the reasonable employer be ascertained in accordance with the calculus in Wyong Shire Council v Shirt (supra) at 47-8? That is to say, how can the magnitude of the risk or the degree of probability of its occurrence be assessed in relation to the particular task, let alone all the other relevant factors?

89 Even if Adecco were entirely cognisant of Mr Stoker’s condition and symptomatology, nothing appears from the medical evidence or any other evidence to substantiate Mr Stoker’s claim that it was unreasonable to expose a person with a degenerative back problem to this risk of injury in this task. This is so whether the particular risk is conceived as a pure risk of back injury or the risk of making an asymptomatic pre-existing condition becoming symptomatic. Furthermore, I am not prepared as a matter of common sense and without further evidence to draw the conclusion that the particular employment of operating the hoist was unsafe for Mr Stoker.

90 In reaching this conclusion, I am mindful of the principle expressed in a number of decisions that an employer is not bound to refuse to employ a person particularly susceptible to a specific risk of the employment just because it does not believe it is in the person’s best interests: Withers v Perry Chain Co Ltd [1961] EWCA Civ 4; [1961] 1 WLR 1314 (per Sellers LJ at 1317 and per Devlin LJ at 1320); Uehlin v Standard Telephones & Cables Pty Ltd (1963) 80 WN (NSW) 1600 (per Sugerman J at 1602-3, with whom Else-Mitchell and Taylor JJ agreed). The absence of duty is based on the principle that the employee knows of the risk and made his or her own choice. Although that principle is not strictly applicable here, it is relevant to note that, in applying to work for Adecco, Mr Stoker was holding himself out as willing and able to perform the jobs of a rigger and dogman. Both were roles which common-sense would tell involve certain physical demands. Further, for what it is worth, Mr Stoker did not protest the task to which he was assigned or complain that he was not fit to perform it.

91 It follows from the foregoing, that the trial judge was not in error in holding that Adecco did not breach its duty of care. The evidence did not establish that Mr Stoker was unfit to carry out work other than light duty work not involving stress to his lumbar spine or that he was physically unfit to operate the hoist on the construction site. In particular, it did not establish that it was unreasonable for the employer to have allowed him to be assigned to the task of operating the hoist. For these reasons, this part of Mr Stoker’s claim must also fail. Consequently, although the trial judge did not really deal adequately with this part of the claim, it would nevertheless be futile to order a new trial.

92 I should add that given this conclusion, it is not strictly necessary to examine the trial judge’s apparent finding on causation, namely, that Mr Stoker’s ailments were caused by the pre-existing lumbar spondylosis rather than by any work-related injury. As I read the judgment of the trial judge, that finding was not a central plank in his reasoning, being merely tacked on after his conclusion rejecting breach of duty. I express no concluded opinion on this issue, merely that it would appear to have been open to the trial judge to accept the evidence of Dr Innes-Brown as to the causative effect of the hoist incident on Mr Stoker. Certainly the report of Dr Innes-Brown was relied upon by Adecco as effecting the disentanglement mandated by Purkess v Crittenden (supra).

GENERAL CONCLUSION

93 From the foregoing, it is clear that while the trial judge’s reasoning had the shortcomings identified, I am nonetheless of opinion that the correct result was reached in respect of the claims by Mr Stoker against both respondents. I am not persuaded that the trial judge was in error in concluding that Mr Stoker had failed to prove that either Allmen Industries or Adecco had breached a duty of care. On the evidentiary material before the trial judge, that was a proper conclusion. I am of opinion that, to the extent that the reasons given by the trial judge could be said to be deficient, there was no miscarriage of justice as would justify a new trial and the verdicts should stand.

94 Therefore, I propose the following orders:

(a) The appeal is dismissed.

(b) The appellant is to pay the costs of the appeal of both respondents.

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LAST UPDATED: 08/12/2004