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Reasonably foreseeable

Smith v Sydney West AHS [2008] NSWCA 267. The Court: Beazley, Giles, Macfarlan JJA. 

15. "This answer was relied on by the respondent as indicative of hindsight reasoning, that is not available to determine the question of breach. There was no issue on the existence of a duty of care. The question essentially revolved around the foreseeability of the risk of injury: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. The precise risk need not be reasonably foreseenMount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 390".

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Macey v Macquarie Generation & Anor [2009] NSWCA 79. Beazley JA, Campbell JA & Gyles AJA agreeing shortly.

The worker failed on liability and credit before Sidis DCJ, having alleged injury in 2003 after slipping through a manhole at Bayswater Power Station operated by the first respondent Macquarie, who failed in its cross claim against the employer in contract.

His appeal was to findings. Macquarie appealed the verdict for the employer.

Beazley JA delivered the leading appeal judgment, with which Campbell JA and Gyles AJA shortly agreed.

Beazley JA outlined liability evidence and the trial judge’s findings.

Later [36], “Macquarie also submitted that it was relevant that the appellant said he did not need any instruction on how to enter the manhole. That is not determinative of whether Macquarie breached its duty of care to the appellant by failing to give an instruction. A person may not perceive that there is a risk of injury by undertaking an activity in a particular way and that may be the very reason that person needs either to be warned of such risk, or to be instructed as to how to engage in the activity. However, the appellant’s evidence is not irrelevant, as I explain below.”

That was infra [39]: “However, if the persons using the manhole on a regular basis regarded the task of accessing it as an ordinary matter for which no warning was required, and if there was no unusual risk in what was otherwise considered to be an ordinary task, it is unlikely that instruction was necessary.”

To employers’ obligations, Beazley JA had quoted from O'Connor v Commissioner for Government Transport [1954] HCA 11 at [5]; (1954) 100 CLR 225 at 229: “… by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury,” equivocating these with the duties of an occupier.

Also rejected was contention of error in finding the injury not reasonably foreseeable. The trial judge had iterated seven factors in support, particularly that the station was built two decades ago, that the four boilers were shut down in rotation at two year intervals, there were 98 manholes in the subject boiler, similar manholes were used in other power stations in NSW and overseas, there were no other reports of injury using manholes at Bayswater, the manholes had been used thousands of times without incident, and safety audits had not identified the pleaded risk.

Noting reliance on Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, Beazley JA quoted Heydon JA in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [66] that the test for foreseeability of risk had “a different and more demanding operation where simple uncomplicated operations by an employee within the normal system of work are concerned…”.

Beazley JA said [infra 47]: “His Honour noted that the position could not be different for independent contractors. To that may be added occupiers. In any event, as recent High Court authority has emphasised, it is usually not useful to merely refer to a generalised ‘duty of care’: see most recently Imbree v McNeilly [2008] HCA 40; (2008) 248 ALR 647. Rather, it is the content of the duty that needs to be determined in order to assess whether or not there had been a breach of that duty. Macquarie, as occupier of the premises, had a duty of care to the appellant. However, I am of the opinion that the matters enumerated by her Honour were relevant considerations in determining the content of that duty. Given those matters, that content did not require Macquarie to provide instruction as to how to access the manhole.”

Contribution did not arise.

Appeal and cross appeal dismissed with costs.

Conceicao v Visypak Operations PL [2008] NSWCA 307. Gyles AJA, Beazley & Giles JJA agreeing. 

The appellant worker succeeded in having remitted Hughes DCJ's $135,000 assessment, for want of address to certain proved incident consequences. The employer failed on liability and contributory negligence, attracting costs.

Injury was attributed to excessive height of a conveyor belt inspection step. Gyles AJA noted expert reference to AS 1657.

"The fact that the height was 550 mm was exacerbated in a practical sense in this case because the appellant is quite a short person. Whether he was short or not, 550mm is not what could be described as an ordinary step and to negotiate that without the benefit of any step or handrail clearly carries with it risks of falling or otherwise injuring oneself. It is not the case here that the plaintiff overbalanced, which is one of the risks, but in my opinion the risk of injuring oneself whilst jumping down from that height to a factory floor was obvious, it was foreseeable and it was preventable by the measures which the plaintiff suggested. The fact that the particular injury was occasioned by coming into contact with an angle iron was well within the range of possibilities, that being one of a number of possible obstructions on a factory floor. Indeed, in my view there was a considerable risk that, over time, people would simply turn over on their ankles when jumping down and suffer that sort of injury for that reason alone," Gyles AJA said [6].

To liability, the employer had queried evidence to the worker's intention: "Whether or not there was an urgency in the jump, the fact was that a jump, not a step, was necessary," his Honour said.

Gyles AJA said, within [10]: "The expert evidence and the photographs show an angle iron in very close proximity to the conveyor belt assembly and the evidence in chief of the appellant identified that as being the relevant angle iron. However, in the course of his evidence he was quite firm and clear that the angle iron was between two and three feet away. He would not be shaken on that. This is a puzzling discrepancy and raises a question as to precisely how this accident occurred. However, in my opinion it is unnecessary to go further than to note that the judge found that the injury was sustained by contact with an angle iron. In my view it does not matter whether the angle iron was two to three feet away from the conveyor belt assembly or much closer; the possibility of jumping and coming into contact with some obstruction was foreseeable."

Then, "The question of contributory negligence is of course more difficult. It is all the more difficult because the trial judge did not advert to it as such in his judgment. However, counsel for the appellant points out that paragraph [23], to which I have already referred, was framed as a choice between the act as a careless mis-step and fall or due to the system of work. It is put for the appellant that, at the most, it would be a careless mis-step or fall and that at the end of a twelve-hour shift, if there were some misjudgment involved in the method of making the jump, then that is the very sort of casual, careless inadvertence which a system of work should guard against: Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301, Podrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALR 529; (1985) 59 ALJR 492, and McLean v Tedman (1984) 155 CLR 306. I would not allow the cross-appeal on the issue of contributory negligence as in my view there would be no proper basis for making such a finding."

Orders.

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