FRANCIS v ICI AUSTRALIA OPERATIONS PTY LTD [1995] NSWCA 154

FRANCIS v ICI AUSTRALIA OPERATIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, PRIESTLEY and COLE JJA 22 February 1995, 2 March 1995

[1995] NSWCA 154

APPEAL AND NEW TRIAL — jury verdict — employee's claim against employer dismissed — whether evidence so preponderates against the verdict as to show that it was unreasonable and unjust- employee manhandling heavy drums on roller line — held: Appeal dismissed.

NEGLIGENCE — employer's liability extent of duty of care — cause of injury conflict of evidence — verdict for employer — held: Verdict sustained.

APPEAL AND NEW TRIAL — jury verdict — stringent requirements for disturbance — obligation to show that the evidence so preponderated against the verdict that it was clearly unreasonable and unjust — no complaint of misdirection — conflicts of evidence — open to jury reasonably and justly to resolve conflicts favourably to employer — worker's claim rejected — held: (1) In judging whether a jury verdict should be set aside, the appellate court is required to view the whole of the evidence and to consider whether, in its totality, it so preponderates against the jury's verdict as to show that the same was unreasonable and unjust. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, applied. (2) Upon the hypotheses of resolution of factual differences open to the jury in favour of the defendant in the present case, no such conclusion could be reached. Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259 (CA), considered.

NEGLIGENCE — employer's liability — duty of care to employee — injury whilst moving large drums on assembly line — whether injury occurred getting drum over lip in line of rollers — conflicting evidence as to existence of lip — resolution of issues for trial — availability of evidence to sustain rejection of employee's case — jury enters verdict for employer in negligence claim — appeal that verdict perverse or against weight of evidence — held: Upon the hypotheses that the jury might properly have accepted as to the manner in which the employee's injuries were caused, the verdict was not shown to be unreasonable and unjust and would be sustained. Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33, applied.

Kirby P This appeal raises once again the question whether this Court is entitled to disturb a judgment which followed a jury verdict adverse to a plaintiff's claim for damages for negligence of his employer.

THE HIGH DUTY OF AN EMPLOYER TO AN EMPLOYEE

The facts are stated by Cole JA. Mr John Francis (the appellant) had an apparently strong case against his employer, ICI Australia Operations Pty Ltd (the respondent). Especially after his first injury, he was clearly vulnerable to further damage if he was required to work upon activities, unaided by mechanical or manual assistance, which imposed on him unreasonable necessities of physical exertion. Modern perceptions of the duties imposed by the common law upon an employer are protective of employees. They include no qualification to the effect that steps that are reasonably necessary need not be taken if to do so would

2 UNREPORTED JUDGMENTS

unduly impede the accomplishment of the employee's tasks. By definition, if protective measures are reasonably open to an employer, they will not ordinarily impede the accomplishment of the task. See Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 309. But as was emphasised in Braistina (ibid at 309):

".. in every case the tribunal of fact, be it a judge sitting alone or a jury, must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer. As Mason, Wilson, Brennan and Dawson JJ said in McLean v Tedman (1985) 155 CLR at p 313:

"Accident prevention is unquestionably one of the modern responsibilities of an employer'. However, it would be wrong to exaggerate the recency of the trend in this regard. It has long been required of an employer that in the case of repetitive work under strain he take account of the possibility of thoughtlessness or inadvertence or carelessness on the part of an employee... ".

The fundamental problem for the appellant, which he was obliged to acknowledge, was that the jury returned a verdict against his claim. The jury's reasoning is unknown to the Court. No clue is in this case provided by any special verdicts. Although the primary judge (Kirkham DCJ) offered the jury the opportunity of providing answers to special questions, he also made it clear that if they rejected the appellant's claim, they should proceed directly to a verdict for the defendant. This is what they did. The question is whether this Court is entitled, and required, to set aside that verdict (and the judgment which followed), to substitute judgment for the appellant or to require a retrial generally or one limited to damages.

PRINCIPLES GOVERNING APPELLATE REVIEW OF JURY VERDICTS

The principles to be applied are not in doubt. They were examined recently by the Court in Nair v Health Administration Corporation and Anor, Court of Appeal, unreported, 16 December 1994; [1994] NSWJB 146.

Relevantly, they include:

1. No jury verdict should be disturbed simply because the appellate court would have reached a different conclusion on the facts. In order to have the authority to set aside the jury's verdict, where the jury has lawfully pronounced that verdict (misdirection or some other vitiating error apart), it must be shown, in effect, that the jury's verdict is not a true verdict. Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 227;

2. Respect must be paid by the appellate court to the "constitutional" role of the jury. The jurors "represent the views of a cross-section of society and should mirror the generally accepted opinion" of society: cf. Snyder v Montreal Gazette Ltd (1978) 87 DLR (3d) 5 (QSC), 17; Hocking v Bell (1945) 71 CLR 430 (HC), 437. It is inescapably a serious thing to suggest that jurors have neglected their oaths, have failed to attend to the evidence and have brought in a verdict which is perverse or unreasonable and unjust. Cf. John Fairfax and Sons Ltd v Carson (1991) 24 NSWLR 259 (CA), 269;

3. In determining whether negligence has been established or not, the jury or other decision-maker is taken to reflect in a general way community standards of what, at any given time, may reasonably be expected of a person in the position

URJ FRANCIS v ICl AUSTRALIA OPERATIONS PTY LTD (Kirby P) 3

of the defendant. Cf. Markovska v St George Hospital, Court of Appeal, unreported, 10 December 1993; [1994] NSWJB 21; Braistina, above, loc cit. One of the advantages of the dual mode of trial now available in this State is that, by jury verdicts, it permits, in certain cases, the expression by juries of community standards and expectations. It allows comparison of judicial opinions with those of the community, expressed by juries; and

4. In the event of an appeal, an appellate court, faced with the argument that the verdict is against the weight of the evidence, is obliged to look at that evidence in its totality. Only if the total evidence "preponderates so strongly against the conclusion favoured by the jury", so that it can be said that the verdict is such that "reasonable jurors could not reach", will the appellate court be authorised to set aside the judgment based upon the verdict. See Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 41. It is by this test that the role of the appellate court, as a safeguard against serious miscarriage of justice, approximates, in civil litigation, the role which has been adopted in Australia in criminal appeals by Courts of Criminal Appeal. This is a failsafe function designed to deal with the exceptional case where, although all of ie forms have been observed, lawful directions given and proper procedures followed, the resulting verdict is so strongly out of harmony with the evidence as to demand appellate disturbance. In judging whether this is so in a particular case, it is conventional for the appellate court to examine the issues actually presented for the jury's resolution. If those issues could properly have been resolved in favour of the successful party and that conclusion sustains the verdict, respect must be accorded to the right of the jury to reach such conclusions and then the verdict resting upon them.

The verdict is neither demonstrably unreasonable nor unjust Although the pleading in this case suggested that the appellant intended to rely at trial upon the arduous, repetitive and awkward nature of the work assigned to him by the respondent, the actual presentation of the case was somewhat different, as Cole JA has explained. The difficulty for the appellant is that the case of the "lip", described by Cole JA, was one upon which there was conflicting factual testimony. As it was open to the jury to accept the evidence which contradicted that of the appellant, a verdict resting upon such a conclusion cannot be described as unreasonable or unjust.

The primary judge did leave to the jury the residual claim that the appellant's work was excessively and unreasonably strenuous. However, as Cole JA has pointed out, it was open to the jury, on the evidence, to decide that the rollers worked efficiently and required little force on the part of the appellant. Had it been otherwise, one would have expected evidence of multiple injuries or complaints over the years that the system was operating. None were proved.

So far as the alternative possible explanation of injury, viz manoeuvring the heavy drums manually, the appellant's evidence (extracted by Cole JA) negatives a complaint that this was the actual cause of his herniation. It is therefore irrelevant.

Accordingly, by the stringent tests which are applied and by reasoning which parallels that of Cole JA, I have come to the conclusion that this Court may not interfere.

No challenge was brought to the directions given to the jury by the primary judge. No objection to his Honour's charge was reserved at the trial. In his attempt to explain the sub-issues of the legal requirements to establish an entitlement to recovery in the appellant, the primary judge used a metaphor of

4 UNREPORTED JUDGMENTS

gateways. He told the jury that the appellant had to pass through a number of gateways. In this way he explained the employer's duty in respect of the provision of a safe system of work to an employee such as the appellant. Whilst no objection was taken at the trial, the overall impression of the summing-up left upon me was that it unduly emphasised the barriers which stood in the way of the employee before he could establish an entitlement to recover damages for negligence on the part of his employer. I am sure that this was not his Honour's intention - nor, apparently, did it strike either counsel at the time in that way. But I leave this case with the caution that, however useful such metaphors may be, they should not obscure the ultimately simple and commonsense question which the tort of negligence poses for answer by a jury. If the jury were ever left with the impression that, for the employee to succeed, he or she must master a labyrinthine journey worthy of a modern Theseus without Ariadne's thread, a risk of misdirection would present which this Court would be obliged to repair.

Orders: appeal dismissed

The jury's verdict is not unreasonable or unjust in the evidence which was called at the trial. A verdict for the appellant could not have been disturbed. Nor can a verdict for the respondent.

The appeal must be dismissed with costs.

Priestley JA The materials in the appeal papers in this appeal show that the case presented by the plaintiff was quite a strong one, if the jury accepted it in full. However issues of fact arose about material aspects of the plaintiff's case which had to be decided by the jury and on which in my opinion it was reasonably open to them to find either way. The jury's verdict for the defendant is explicable on the basis that, without perversity or unreasonableness (in my opinion) they did not accept some essential part of the plaintiffs case as it was presented and contested before them. As these matters are explained in detail in the reasons of Cole JA there is no point in further elaborating my own reasons.

In my opinion the appeal should be dismissed with costs.

Cole JA This is an appeal by John Stanley Francis, a worker who alleged he was injured on two occasions at his place of employment with the respondent. The first injury occurred on the 25th of October 1984, and the second on the 3rd of January 1985. His claim for damages was heard before a jury. On 24 July 1991 the jury returned a verdict for the defendant. The appellant contends that the jury verdict was against the evidence and the weight of the evidence and was so unreasonable that it should be disturbed on appeal.

The principles applicable in considering whether this Court may disturb the finding of the jury were enunciated in the High Court in Calin v Greater Union Organisation Pty Ltd.! It was there said:

"The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.

Authority in this Court and in other jurisdictions supports the appellant's submission (32). It should be noted that, in Hocking v Bell, Dixon J drew a distinction between cases, on the one hand, in which the verdict is vitiated by he some legal error, such as material misdirection or misreception of evidence, or

1. (1991) 173 CLR 33 at 41.

URJ FRANCIS v ICI AUSTRALIA OPERATIONS PTY LTD (Cole JA) 5

was perverse in the sense that the jury disregarded the judge's direction and, on the other hand, cases where, on conflicting evidence a verdict is found which is said to be against the weight of the evidence (33). In the cases last mentioned, as Starke J noted, "the verdict is not disturbed unless the jury, viewing THE WHOLE EVIDENCE reasonably, could not properly find it' (EMPHASIS added) (34). The party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that "the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust(35)".2

Notwithstanding the width of the allegations in the Further Amended Statement of Claim, the manner in which the appellant told the jury he was injured was in manhandling a drum to get it above a "lip", the lip being created by a difference in height between a line of rollers and a scale. In consequence the appellant said that he was injured on each occasion whilst working a drum, which weighed between 185 and 240 kilograms, over that lip. The injury so caused was said to be a further injury to a pre-existing hernia. That that was the case which the appellant put to the jury is clear from his evidence in chief at page 16R-S, 17B-D, 17V-W, 18B-D, and in particular at page 19P-V and 200-T of the appeal book. The appellant reaffirmed to the jury that the injury which he suffered on both occasions was caused by trying to manhandle the drum over the so-called lip in cross-examination at page 41H-0, 42C-D and 43B-N. It is sufficient to quote two passages from examination-in-chief and cross-examination. In chief the appellant said:

Q. "From the time when you started to work on the B drumming line was there any problem so for as the ordinary procession of the drum only the line was concerned?"

A. "The top ends they kept falling off, initially. There was a problem on the sales section itself."

Q. "Tell me please what was that problem was on the scale section?"

A. "The rollers as you came off were slightly higher than the scale."

Q. "So, what would that have meant you had to do?" A "You would have to manhandle that drum to get it above that lip so it would freely roll down to the pallet."

Q. "Assume that the lip had not been there, is it the fact that the drum would have just proceeded along without any interruptions?"

A. "Yes, just a push."

Q. "How did you find manhandling the drum, what sort of work was it?"

A. "It's very heavy work."

Q. "What would you have to do, given that they weighed between 185 and 240 kilos full?"

A. "You would either have to use the section where the scales are and either push the drum against that, sort of a push action. then lift it or pull it towards you, whichever was the easiest way you could get it over that lip."3

In cross-examination, the appellant said:

Q. "But, in any event, are you telling the jury that is not the problem here. The problem here is this lip on the join between the downward rollers and the rollers in the weighbridge were higher than what they should have been. It was a mechanical problem, it wasn't fixed."

2. (1991) 173 CLR 33 at 41-42. 3. Appeal Book, page 16P-X, 17B-D.

6 UNREPORTED JUDGMENTS

A. "The rollers as it came off the weighbridge were higher than what they should have been. It was a mechanical problem, it wasn't fixed."

Q. That is a different problem from any difficulty that might have arisen from out of the rollers not rolling smoothly as they sometimes didn't?"

A. "Yes, the problem we are talking about, that is the lip." Q. "That is the problem we are talking about?" A. "Yes."

Q. "Have you always said to various people who you would talk to about this injury that there was a lip there, which was the problem?"

A. "Yes, the rollers were raised." HIS HONOUR: "That is not what you were asked." WITNESS: "I have never mentioned a lip until today."

Q. "You have always said the rollers were raised. You never yourself used the word lip, that is the word that counsel has used?"

A. "Yes".

Q. "So Iam quite clear about what you are saying, the problem with the rollers being raised was quite a different problem from rollers tending to stick in places, is that right?"

A. "Yes "4

Whether such a "lip" existed was in issue. If it did not exist, the jury was entitled to find that the injury which the plaintiff said he suffered in seeking to "work" the drum over the lip did not occur in that fashion. If the jury came to the view that there was no lip, they were entitled to bring in a verdict for the defendant because the appellant said that was the only activity which caused his injury. Further, if there was no "lip", the manner in which the appellant was injured was unexplained, and thus negligence was not established.

There was evidence from the foreman, Mr Altendorf, that no such lip existed.5 If the jury accepted Mr Altendorf, they were thus entitled to bring in a verdict for the defendant.

Where there was, as here, a clear conflict of fact, it was for the jury to decide whom to believe. The verdict reached by the jury is clearly explicable on the basis that the jury may have accepted Mr Altendorf in preference to the appellant.

Such an acceptance would not have been unreasonable. That flows from the following circumstances. First, the appellant told his doctor, Dr. Neophyton, that the injuries were caused by pushing and pulling drums on rollers that were poorly maintained. In his history to the doctor he did not attribute the injury to trying to work drums over a lip. Whilst the appellant said in evidence that "it was mentioned (to the doctor) that that section was raised",© Dr Neophyton had no record of that. The history taken by him was that: "He was moving heavy drums at work These drums were on rollers, one of the rollers became stuck and as a result of that he incurred a strain to his abdominal wall."7

4. Appeal Book, page 43B-O. 5. Appeal Book, page 77L-W. 6. Appeal Book, page 44H. 7. Appeal Book, page 66R.

URJ FRANCIS v ICI AUSTRALIA OPERATIONS PTY LTD (Cole JA) 7

Second, in completing workers compensation forms in respect of each accident, the appellant made no mention that the cause of the injury was trying to work the drum over the lip. In respect of the latter accident he attributed the injury to "continuous pushing of these full drums down rollers that tend to stick in places".8

Third, and of less importance, the appellant did not make any written complaint of any such matter requiring maintenance although he asserted he made an oral complaint.

The case put to the jury by the appellant was thus a single issue case, namely, whether the injuries suffered by the appellant on the two separate occasions were caused by him seeking to work a drum over the "lip". That that was so appears yet further from the evidence led from the plaintiffs doctor, Dr Neophyton regarding the cause of the two incisional hernias that the appellant suffered on or shortly after the two dates when he asserted he suffered injury in working the drum over the lip. Prior to those two incidents, in 1983, the appellant had suffered an hiatus hernia. Dr Neophyton was asked by counsel for the appellant whether the two incisional hernias suffered "had something to do with the lifting that was involved" referring to the lifting on the two occasions of the drum over the lip.? No evidence was sought to be led from Dr Neophyton, the only medical practitioner called, that his injury was due to any other cause such as pushing drums along rollers, pushing drums over seized rollers, or turning drums to ensure that labels affixed to them were visible when they were stacked on a pallet.

There was here a clear conflict of fact for the jury to decide, namely whether there was a lip. If the jury found there was not, then the plaintiff's account of the manner in which his injuries were caused must necessarily have been rejected and his claim would fail.

On the appeal, a wider case was sought to be made. It was argued that the case which went to the jury concerned two other bases of claim. The first was that the work generally was "heavy work" or "strenuous work" and that that heavy work, in particular the pushing the drums along the rollers which from time to time seized, was the cause of the injuries suffered by the appellant. The second was that the work of turning drums once they had passed down the roller line and onto a pallet so that labels were visible was heavy work which may have caused the injuries.

It may be true, as the appellant contended, that those cases were left to the jury.!0 Each such case raised issues for the jury. There were clear grounds upon which the jury was entitled, if they so decided, to reject each such case.

Regarding the "strenuous activity" case involving the appellant in seeking to establish negligence of his employer in relation to the system of work in consequence of his being required to push heavy drums along rollers, there were the difficulties that that was not the manner in which the appellant said he was injured, there was no evidence from the medical practitioner that the earlier injuries which he suffered were caused by that activity, and the mechanical expert called by the appellant in his case accepted that the force required would be something in the order of 7-8 kilograms. On any of those bases the jury could properly have found for the defendant.

8. Appeal Book, page 46F, 88C-K. 9. Appeal Book, page 72V-73K. 10. Appeal Book, page 123R-124K.

8 UNREPORTED JUDGMENTS

Regarding the allegation that there was an unsafe system of work establishing negligence in that the appellant was required from time to time to turn heavy drums on the pallet so that labels were visible, the plaintiff's evidence regarding this was scant indeed. It was raised only in cross-examination in the following evidence:

Q. "You say that, don't you, that with the absence of that lip or step there would be no trouble in doing that work, at all, is that right?"

A. "Well, it would have gone down to the next section which entailed the manhandling of the drum further, which the drum had to be turned. It would hit a metal section that was protruding. They wanted all the labels facing outwards. It would have gone down easily to that section, but then when you get to that section you have got to literally manhandle the thing and turn it."

Q. "The labels are put on before the drums are full, is that not right?"

A. "Yes "

Q. "If you turn them out while they are empties they usually slide down to a position where the labels are supposed to be, is that not right."

A. "Two on the back, four on the pallet. So they have to face outwards, all of them. So you would have to turn at least two."

Q. "You were turning though as they are moving along rollers, are you not using the metal thing as a pivot thing?"

A. "You take the minimum turn of the drum."

Q. "That is the utilisation of the drum to make the manoeuvre easier?"

A "Yes "

Q. "There is a pivot pointing to the position in those rollers which assists in that manoeuvre?"

A. "Yes."

Q. "You say you hurt yourself not doing that, but getting the them over the lip, you say, was there?"

A. "Yes."11

The jury was clearly entitled to find for the defendant upon the basis that the appellant was not injured whilst performing that activity for the simple reason that he agreed he was not.

In my view there is no ground for holding that the jury's verdict was either unreasonable or against the weight of the evidence.

In my view the appeal should be dismissed with costs.

Appeal dismissed with costs.

COUNSEL:

Appellant: M R Aldridge

Respondent: C R R Hoeben

SOLICITORS:

Appellant: Bryden Doherty and Shead, Liverpool

Respondent: Hunt and Hunt

11. Appeal Book, page 41K-X, 42B-D.