Evidence of more than hypothetical or impractical precautions required

Transpacific Industrial Solutions Pty Limited v Phelps [2013] NSWCA 31


In Kuhl v Zurich Financial Services Australia Ltd[1] it was observed:

“To satisfy the element of causation on the case presented for Mr Kuhl to this Court, it would be necessary to identify the action which, on the available evidence, the trial judge could conclude ought to have been taken; that action, if failure to take it is to be accounted negligent, must be such that the foreseeable risk of injury would require it to be taken, having regard to the nature of that risk and the extent of injury should the risk mature into actuality; and it would be necessary that the trial judge could conclude as a matter of evidence and inference that, more probably than not, the taking of that action (here the installation of the break box) would have prevented or minimised the injuries the Claimant sustained [ State of Victoria v Bryar (1970) 44 ALJR 174 at 175 per Barwick CJ, McTiernan, Owen and Walsh JJ concurring.].”

For a plaintiff to succeed it needs to be established that one or more of the precautions alleged was causative of the injury suffered from the incident: Neill v NSW Fresh Food and Ice Pty Ltd [1963] HCA 4; (1963) 108 CLR 362 (at 364) per Dixon CJ, (at 369 – 370) per Taylor and Owen JJ; Vozza v Tooth & Co Limited [1964] HCA 29; (1964) 112 CLR 316 (at 319) per Windeyer J (with whom the other members of the Court agreed); see also Australian Iron & Steel v Krstevski [1973] HCA 42; (1973) 128 CLR 666.

In Transpacific the application of the above principle (s.5B of the New South Wales CLA) was determinative of the appeal; namely the precautions, which a reasonable person would have taken against the risk of the harm, which the plaintiff succumbed. The appeal court held:[2]

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

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

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

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

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

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

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

Brisbane Barrister – David Cormack

[1] [2011] HCA 11; (2011) 276 ALR 375 at [45].

[2] Barrett JA with whom McColl and Basten JA agreed.

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