Smith v Coles Supermarkets Australia Pty Ltd t/as Coles Distribution Centre; Ready Workforce (A Division of Chandler Macleod) Pty Ltd v Coles Supermarkets Australia Pty Ltd; Coles Supermarkets Australia Pty Ltd v Chandler Macleod Group Ltd

1. [1]

   LEEMING JA: A single judgment determining two actions has led to three appeals involving four parties.

2. [2]

   Two of the appeals are closely related. Mr Matthew Smith and Ready Workforce (A Division of Chandler Macleod) Pty Ltd separately sued Coles Supermarkets Australia Pty Ltd, the occupier of a 65,000m2 distribution centre at Smeaton Grange in western Sydney where Mr Smith worked. Mr Smith claimed that he was injured on 10 May 2014 while lifting a box of water bottles, located at the rear of a pallet resting on the floor. By the time proceedings were commenced, he had been paid slightly more than $100,000 in workers compensation. Mr Smith sued in negligence. His employer, Ready Workforce, sued pursuant to s 151Z of the Workers Compensation Act 1987 (NSW) to recover the workers compensation payments it had made. Both actions were heard together, and the primary judge dismissed both.

3. [3]

   Ready Workforce’s claim turned on establishing that Coles breached a duty of care owed to Mr Smith. Ready Workforce called no witnesses, and relied on the evidence adduced in Mr Smith’s case (the evidence of all witnesses, lay and expert, was treated as evidence in each proceeding). The fact that on most issues there were two counsel appearing in Mr Smith’s interest, and contrary to Coles’ interest, has some significance for some of the grounds of appeal, especially a complaint about re-examination. However, the most convenient course for the purposes of these reasons will be to focus attention on Mr Smith’s claim, and then return to that of Ready Workforce, noting that Mr Catsanos SC appeared at first instance and in this Court for Ready Workforce, Mr Parker SC for Coles, and while Mr Flett appeared at trial for Mr Smith, he was replaced by Mr Cranitch SC in this Court.

4. [4]

   There are 29 grounds of appeal, not counting sub-grounds, separately raised by Mr Smith and Ready Workforce, some of which turn upon the pleadings and the conduct of the trial. The drafters of both notices might profit from reviewing McHugh J’s observation in Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [70] that “[i]t is inherently unlikely that any personal-injuries action would give rise to fourteen issues ...” as well as his citation of a United States Circuit judge’s statement that where “an appellant’s brief contain[s] seven to ten points or more, a presumption arises that there is no merit to any of them”. It is unlikely that there will be 29 reasonably arguable errors in a judgment, each independently causing the wrong order to be made.

5. [5]

   Another difficulty is that the reasons for judgment, delivered promptly after a 4 day trial, occupy 83 single-spaced pages in small typeface, devoid of paragraph numbers. The first 60 pages deal with the liability of Coles to Mr Smith and Ready Workforce. Her Honour’s notional assessment of damages and contributory negligence occupy 5 pages.

6. [6]

   Concision and readability leads me to provide an overview of the trial which focusses upon the matter given most prominence in the appeal – the absence of “pick sticks” – before addressing the individual grounds of appeal.

7. [7]

   Discrete from the foregoing, but adding to the procedural complexity, was a contractual claim between Coles and Chandler Macleod Group Ltd (the latter being distinct from Ready Workforce), advanced by separate cross-claims in each action. Coles argued that any liability it incurred to Mr Smith or Ready Workforce, including the irrecoverable costs it incurred in defending each action, was either the subject of a contractual indemnity, or else was recoverable as damages for a breach of a contract. The primary judge upheld each cross-claim, but awarded nominal damages, from which Coles has appealed. This is the third appeal which was heard concurrently in this Court. It will be convenient to delay dealing with any aspect of this (which occupied the last 17 pages of her Honour’s judgment) until the end of these reasons.

Mr Smith’s action for negligence

1. [8]

   It is common ground that Coles owed Mr Smith a duty as a “host employer” which extended to taking reasonable care to avoid exposing him to unnecessary risks. None of the potential complexities considered in Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167 at [141]-[149] was explored and may therefore be passed over. It was not disputed that while Mr Smith’s duties did not amount to repetitive work in the sense of an operator on an assembly line, Coles also had to take into account the possibilities of thoughtlessness, inadvertence and carelessness, substantially in accordance with what was held in Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12].

2. [9]

   However, Coles was not Mr Smith’s employer. This had profound consequences. Mr Smith’s claim for damages was not a claim for “modified common law damages” pursuant to Division 3 of Part 5 of the Workers Compensation Act 1987 (NSW). That meant that many of the restrictions of that Division were not applicable (see for example ss 151H-151M). It also meant that the Civil Liability Act 2002 (NSW) was not displaced by s 3B(1)(f), and thus Mr Smith’s claim for personal injury damages was governed by Part 2 of that Act. Most importantly for present purposes, Part 1A applied. Thus Mr Smith had to satisfy ss 5B and 5C in order to establish a breach of duty, and ss 5D and 5E to establish causation. Although there can be a tendency to equate the tests for breach and causation at common law with the requirements of ss 5B-5E of the Civil Liability Act, they are distinct. Breach at common law reflects the formulation in Wyong Shire Council v Shirt (1980) 146 CLR 40; [1980] HCA 12; sections 5B and 5C modify the position including, most relevantly for this appeal, by insisting in all cases where the breach of duty arises because of a failure to take a precaution against a risk of harm that the plaintiff show that a reasonable person in the defendant’s position would have taken that precaution. Causation at common law continues to be governed by March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12, while the requirements of factual causation and scope of liability in s 5D more closely reflect McHugh J’s minority approach in that appeal.

3. [10]

   Mr Smith’s statement of claim did not mention the Civil Liability Act. Nor did it mention the legal concepts which were indispensable to his obtaining judgment, namely, risk of harm, precautions which a reasonable person in Coles’ position would have put in place, and factual causation.

4. [11]

   Not only was there disconformity between the pleading and the legal issues, but also the facts pleaded were quite distant from the case advanced at trial.

5. [12]

   The facts giving rise to the incident were pleaded thus:

6. [13]

   It is not clear how much a box of 25 x 1 litre glass bottles of water would weigh, although it must be considerably more than 25 kilograms. Mr Smith accepted, and the primary judge found, that Mr Smith lifted nothing like that weight. Instead, he lifted a box of 12 x 800ml “VOSS” water bottles, weighing some 16.4kg. No challenge is made to that finding.

7. [14]

   The statement of claim gave the following 13 particulars of negligence which are reproduced as Annexure A. Those particulars have been tailored to the case sought to be advanced by Mr Smith (and in this respect compare favourably with those propounded by Ready Workforce). In very large measure, they allege failures by Coles to undertake various precautions. However, three matters are conspicuous by their absence.

   1. (1)

      The first is the claim, permitted to be advanced over Coles’ objection, and maintained throughout the trial, that the reason for the injury was that there was a row of racking only 1.7m high, under which Mr Smith had to stoop when picking up the water.

   2. (2)

      The second is that a slat of the pallet was broken, impeding Mr Smith’s access to the box of water.

   3. (3)

      The third is the claim that a “pick stick” should have been made available to Mr Smith to assist in dragging the box closer to the aisle. The “pick stick” was a 180cm long thin metal pole with a handle at one end and a small base at the other end, perpendicular to the pole.

8. [15]

   The propositions that the overhead racking was too low and a slat of the pallet was broken were factual matters said to explain how the injury came about. The pick sticks were different. They were a precaution which, so it was said, a reasonable person in the position of Coles would have employed to address the risk of harm which was presented.

9. [16]

   Section 5B applied to any finding of breach based on a failure to take precautions. It provided:

10. [17]

    As Meagher JA said in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [22]:

11. [18]

    For other recent examples of the need to pay regard to the demands of s 5B, see also Fairall v Hobbs [2017] NSWCA 82; 347 ALR 151 at [74]; Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [41] and Coles Supermarkets Australia Pty Ltd v Bridge [2018] NSWCA 183 at [21].

12. [19]

    To anticipate what follows, Mr Smith’s counsel opened on the first and second of those aspects, and, over the defendant’s objection, evidence was adduced and findings made on those unpleaded aspects of the case. These were very important factual issues at trial.

13. [20]

    The allegation that Coles should have made available and mandated the use of pick sticks was quite different. It fell into the same category as most of the lengthy particulars reproduced in Annexure A, being precautions which Coles was alleged to have failed to take. Having regard to the prominence the pick sticks achieved on appeal, it may be useful to summarise what occurred.

14. [21]

    Section 5B made the identification of the precaution and establishing that a reasonable person in Coles’ position would have undertaken it critical to the success of Mr Smith’s claim. To put it bluntly, if Mr Smith was to obtain judgment based on Coles’ failure to do something, he needed to identify a risk of harm and to establish that the risk was foreseeable and not insignificant, and he also needed to identify precautions which a reasonable occupier in the position of Coles would have taken, having regard to the probability that harm would occur if the precautions were not taken, the likely seriousness of the harm, the burden of the precautions and the social utility of the activity which created the risk of harm. This is irrespective of the fact that his pleading did not engage with the Civil Liability Act.

15. [22]

    The pick sticks were treated differently at trial from the height of the racking and the broken slat. They were not mentioned in opening. Both sides’ experts had said, without elaboration, that pick sticks could have assisted, and both proceeded on the false premise that pick sticks were available in 2014. Neither expert was cross-examined. A reference was made to the pick sticks in cross-examination, to which Mr Smith responded that he had never heard of them and they had not been issued. The pick sticks assumed some prominence in closing submissions, but senior counsel eschewed the possibility that the trial might have departed from the pleadings, and insisted that they fell within the pleaded case.

16. [23]

    The trial judge regarded Mr Dubos’ evidence concerning the use of pick sticks as based on facts different from those her Honour found and therefore irrelevant. They were at the forefront of the submissions advanced on behalf of Mr Smith and Ready Workforce on appeal.

17. [24]

    Mr Smith’s case was opened on the basis that there were two reasons why he could not approach the box of water and lift it safely. He claimed that he could not stand on the pallet because of the 1.7m height of the racking. It was also put that the pallet had a broken slat. Immediately after the conclusion of the opening, counsel for Coles objected that:

18. [25]

    The trial judge deferred the issue thereby flagged until evidence was adduced. When Mr Smith was asked questions about the broken pallet, her Honour overruled what, in effect, was a relevance objection, and permitted the evidence to be led.

19. [26]

    It may be noted that the lay witnesses were all led in chief, and if statements had been supplied as to the evidence they were likely to give, it is not apparent from the transcript or the appeal books. Some idea of the plaintiff’s likely evidence may be inferred from the assumptions briefed to his expert. It is far from clear to me that the overriding purpose, to which the parties, their lawyers and the Court were subject by reason of s 56 of the Civil Procedure Act 2005 (NSW), was facilitated by Mr Smith giving an oral account of his accident. Leading evidence in chief was necessary when questions of fact were determined by juries, who might be illiterate. There are other occasions when it is appropriate. But I respectfully doubt whether a default position that lay evidence be adduced without notice of what it is likely to be is either the fairest or most efficient procedure available in the 21st century in civil litigation.

20. [27]

    Mr Smith gave firm evidence that when standing on the ground, he was at about eye level with the upper rack. He maintained in evidence in chief and in cross-examination that it was not 2 metres high, although he conceded that he never measured the height.

21. [28]

    Mr Smith accepted that the box he was lifting was a box of 12 “VOSS” water bottles. Each bottle contained 800ml of water. It was common ground that the box weighed 16.4kg.

22. [29]

    Although Mr Smith’s claim that the racking was only 1.7m high was maintained throughout the trial, the primary judge found against him, and the rejection of this aspect of his evidence is not challenged on appeal. Coles adduced contemporaneous documentary evidence that the boxes of VOSS water were stored at ground level in slot DD291A in May 2014. As it happened, a survey of the warehouse had been undertaken in March 2014. The survey showed that the height of the beam above slot DD291A was 2100mm. There was no dispute that the beam was 110mm thick. Thus the clearance above floor level was 199cm, and the clearance above the level of the pallet was 184cm.

23. [30]

    (There is nothing to suggest that Mr Smith or his lawyers had any notice of the documents which would be made available to support Coles’ case that the racking was 1.99m high. I repeat the comments made four paragraphs above.)

24. [31]

    It follows that Mr Smith could not have hit his head, or been concerned about hitting his head, had he stepped onto the pallet with one foot, keeping one foot on the ground in the aisle, and picked up the box. It may be that Mr Smith, who claimed a good recollection of the racking at eye level, was confusing this particular lift with one of the thousands of others he had performed in the years he had worked as a picker.

25. [32]

    The remaining key factual element which had been mentioned in opening was the broken slat in the pallet. The evidence in relation to the slat is quite unclear.

26. [33]

    It was agreed that each pallet’s dimensions was 1165mm x 1165mm x 150mm, and that the lead boards were 150mm wide, with the intermediate boards being 95mm wide with a small gap between each board. Uniformity of pallet dimensions is essential for logistics, and may confidently be accepted.

27. [34]

    The placement of the boxes of VOSS water bottles upon the pallet is shown in the photograph below. The photograph was taken in June 2018, some four years after the incident, and is of a different bay (“DD351”, rather than “DD291”) but there is no reason to think that the arrangement of the boxes on the pallet, or the configuration of two pallets in each bay, was any different from how it had been in May 2014. It is (at least to my eyes) consistent with a height of 1.99cm, although careful allowance must be had for parallax error (the key is to compare the top of the uppermost box, which must be around 1.7m, with the rear pillar of the racking immediately to its right in the photograph).

28. [35]

    Mr Smith gave evidence in chief as to why he did not walk across the pallet and pick up the box as follows:

29. [36]

    Late in his examination in chief, Mr Smith gave this evidence:

30. [37]

    It will be seen that Mr Smith’s erroneous recollection as to the height of the racking overlapped with his evidence about the broken slat, and that he gave no clear evidence about the location of the broken slat.

31. [38]

    Mr Catsanos was permitted to cross-examine Mr Smith, albeit before counsel for Coles. He was encouraged to ask non-leading questions. He elicited the following evidence concerning the lift which led to Mr Smith’s injury:

32. [39]

    This evidence was a useful attempt to identify with some precision the mechanics of Mr Smith’s injury. However, it does not clearly describe what happened.

33. [40]

    The difficulty starts with the question: “When you went to pick up the box of mineral water how far in front of you?” How is the distance to be measured? Is the distance to be measured before or after Mr Smith’s foot was on the pallet? Is the measurement from the edge of the box or from the middle of its sides? Is it a horizontal or diagonal distance? And, perhaps most vaguely of all, what is meant by “how far in front of you”? Mr Smith’s arms must have been outstretched prior to picking up the box. Was the answer a distance between his hands and the box at the time he placed his foot on the pallet? Or a distance from his shoulders, or his hips (or even – as the expert may have measured it – from the midpoint of his ankles) to the box?

34. [41]

    The difficulties were exacerbated by the exchange after the judge’s intervention (which was evidently not fully captured in the transcript). It is not clear whether, when stating “approximately about 90 centimetres”, Mr Smith thought he was answering the same question. Obviously, 90cm is approximately three feet, as opposed to the two feet initially answered by Mr Smith. None of this was cleared up, either at that stage or subsequently.

35. [42]

    Mr Cranitch was correct to state in oral submissions in this Court that “it is and remains unclear what part of his body was 2 feet from the box”.

36. [43]

    Yet, by the time of final addresses at trial, Mr Catsanos was maintaining that “the worker gave unchallenged evidence that the box of mineral water in question was 90cm from his body when he lifted it” and on that basis submitted that it was dangerously heavy, because of evidence that in no circumstances is it safe to lift at arm’s length a weight over 15kg. It will be clear from the transcript that the submission ignores Mr Smith’s previous answer. Further, as will be seen below, notwithstanding much that was unclear about Mr Smith’s evidence, it cannot be correct that he reached 90cm to the box of water bottles.

37. [44]

    In this Court, Mr Cranitch submitted:

38. [45]

    I agree that the evidence never identified where the broken slat was. However, I do not agree that the evidence of Mr Smith was clear, or that his evidence was the only clear evidence available to the primary judge.

39. [46]

    Mr Smith did give clear unchallenged evidence that he placed one foot on the pallet and kept the other on the ground in the aisle. There was no dispute about this on appeal (Transcript 22 July 2020, p 6.25).

40. [47]

    Parts of this evidence have been reproduced above. Mr Smith continued:

41. [48]

    The primary judge made no findings about precisely where Mr Smith stepped. The parties invited this Court to do so, if it could, in order to avoid a retrial. Aspects of what occurred can be illuminated by the evidence of the dimensions of the pallet, the box, the racking and Mr Smith’s height.

42. [49]

    There was conflicting evidence as to the dimensions of the VOSS water boxes. Dr Fairfax said each box was “22cm (L) x 20cm (W) x 31 cm (H)”. That is obviously wrong. Boxes of 12 cylindrical bottles can never be essentially square (22 x 20). They are inevitably much closer to an oblong, with the ratio between the short and long side being 3:4. (Twelve circulate bottles will, in the absence of internal packing, inevitably be arranged in a carton in a 3x4 rectangle.) As much is confirmed by the photograph, which shows that the base of each box is much closer to being an oblong than the near square described by Dr Fairfax. Mr Dubos said they were “300 mm in height x 290 mm in length x 220 mm deep”. This is roughly consistent with the basic geometry of packing 12 cylinders, and the photographs in evidence.

43. [50]

    The photograph reproduced above shows that the pallet was packed so as to have the boxes oriented in different directions. The total length of boxes facing the aisle when a pallet was positioned in the bay was 290 + 220 + 220 + 220 = 950mm, leaving around 100mm on each edge of the pallet empty. It is certainly open to proceed on the basis that the last box remaining on the pallet was hard on the far edge of the pallet, in the corner and oriented with either its narrow 220mm face facing the aisle or the broad 290mm face facing the aisle.

44. [51]

    The pallet was 1165mm square. Thus even assuming that the last box of water sat right on the far edge of the pallet, the distance between the front of the pallet and the closest face of the box was in the order of 910 or 840mm, depending on its orientation. More relevantly, the distance between the front of the pallet and the middle of the box of water (where a picker would obtain a grip) was in the order of 1020 or 990mm.

45. [52]

    It follows that if as he maintained Mr Smith had one foot on the pallet, then the horizontal distance between his foot and the remaining box of water was considerably less than 90cm, irrespective of where his foot was placed.

46. [53]

    It is not clear which slat was broken. But Mr Smith maintained that it was the broken slat which prevented his placing his foot next to the box. Taking that evidence at face value, it could not have been the 150mm slat on the far edge of the pallet, which would have been wholly underneath the box and could not, if broken, have caused any obstruction to Mr Smith. It must have been one of the three 95mm slats furthest from the aisle. (If the narrow face of the box faced the aisle, then the box would have rested upon the first 95mm slat, would perhaps have rested on part of the second 95mm slat, and would not have covered any of the third slat. If the wider face of the box faced the aisle, then the box would not have covered all of the furthermost 95mm slat, and so it would have been that slat or the second 95mm slat which was broken.)

47. [54]

    Conceivably, the exposed slat adjacent to the box was not broken, but the slat which was even closer to Mr Smith was broken, and Mr Smith formed the view that he could not safely put his foot with his toe on the unbroken slat. That would be the most favourable view of the evidence from Mr Smith’s perspective, because he would have been forced further than 10cm from the box. It was not advanced by any party on appeal. It was evidently rejected by the judge, who was in this respect better placed than this Court to assess what Mr Smith was conveying. As will be seen below, the trial judge formed the view that the broken slat caused Mr Smith’s foot to be 10cm removed from the edge of the box he was to pick up.

48. [55]

    This was made very clear during closing submissions:

49. [56]

    But for the broken slat, there would have been no difficulty in standing at the front of the pallet, placing one foot on the pallet next to the box, and performing the lunge lift recommended by Coles whilst retaining the other foot on the ground in the aisle. It would have been impossible for Mr Smith to have been in any way impeded by the racking above his head.

50. [57]

    On appeal, Mr Cranitch directed attention to Mr Smith’s evidence about being two feet from the box:

51. [58]

    I do not accept this uncritical approach to findings of fact. Mr Smith needed to prove his case. His evidence about the height of the racking was wrong. His pleaded case about lifting a box containing 25 x 1 litre bottles of water was wrong. His evidence about the box weighing more than 20 kg was wrong. His evidence about reaching 90cm was wrong. His evidence about being approximately 2 feet from the box is very unclear. Fundamentally, this is not a case where counsel can succeed simply by saying that it is all too hard to work out what must have occurred. Insofar as Mr Smith’s case turned on the broken slat, one needs to work out what consequences that had.

52. [59]

    It does not follow from the fact that Mr Smith’s evidence was unchallenged that the Court cannot draw inferences from the demonstrably established dimensions of the pallet, the slats and the boxes of water. The task of the trial court, and of this Court conducting an appeal by way of rehearing, extends to assessing all of the evidence, in order to make findings (if findings can be made) as to the mechanism of the incident.

53. [60]

    Yet Mr Cranitch maintained in chief, and in his address in reply, that the starting point was the testimonial evidence of Mr Smith:

54. [61]

    It will be clear from the above that I cannot agree with Mr Cranitch’s submission.

55. [62]

    In the present case, the way in which fact-finding is to be performed was straightforward. Contrary to the written and oral submissions advanced by Mr Smith and Ready Workforce, the starting point was not Mr Smith’s recollection (which was demonstrably incorrect in some respects), in 2019, of what he had done five years earlier. Rather, the starting point was the dimensions of the pallet and the slats and the box, which could be confidently and objectively established and in the light of which Mr Smith’s recollection fell to be assessed.

56. [63]

    It is plain from the exchange at trial between the primary judge and Mr Cranitch that her Honour regarded the broken slat as an issue about a 10 centimetre distance between Mr Smith’s foot and the box. Perhaps it was a few centimetres more. Even so, that seems unlikely to be causative of injury. Hence I asked the following question:

57. [64]

    The response was that this was common ground. But I do not accept that that was so.

58. [65]

    First, this allegedly common ground is not, so far as I can see, mentioned in the judgment or in the submissions (certainly, the Court was not taken to where this appeared).

59. [66]

    Secondly, it is inconsistent with the reasons of the primary judge, which deal extensively (see below) with the evidence of Dr Fairfax as to the plaintiff’s reach of 87cm and Mr Smith’s evidence of 2 feet and 90cm. The grounds of appeal in these appeals are numerous, but it was not said that her Honour departed from what was common ground.

60. [67]

    Thirdly, it is not how the case was argued. Illustrative of this is Mr Catsanos’ closing submission at trial:

61. [68]

    It was for the plaintiff to demonstrate that his inability to place his foot adjacent to the box made the lift dangerous. That involved contradicting Dr Fairfax’s opinions. But neither Mr Smith nor Ready Workforce sought to cross-examine Dr Fairfax.

62. [69]

    There was evidence accepted by her Honour that Mr Smith was trained how to lift properly and safely, to bend his knees and brace his abdominal muscles rather than bending his back. Mr Smith accepted that he did not do so. He accepted in cross-examination that he knew that in order to lift safely he needed to maintain the natural curve of the back, and agreed that he lifted with a bent back when he was injured, contrary to a specific prohibition:

63. [70]

    Mr Smith also agreed that the technique he adopted was contrary to the technique he had been taught. He also accepted that he knew that if he could not get close to an object, he had been instructed to leave it, and he had not done this. He accepted that he was aware that he should have tilted the box to facilitate the lift.

64. [71]

    There was ample basis for the finding by the primary judge that:

65. [72]

    It was on this basis that the primary judge found that had Mr Smith lifted in accordance with the manual handling technique in his training, the injury would not have occurred.

The use of pick sticks

1. [73]

   The most prominent submission on appeal concerned the use of pick sticks. Thus, Mr Cranitch submitted:

2. [74]

   The photograph to which he referred was this (the three thin white lines perpendicular to the pole in the middle of the stick and towards the handle appear to be reflections from the camera’s flash):

3. [75]

   The use of pick sticks was not pleaded or particularised. It was not mentioned in opening.

4. [76]

   In cross-examination, the topic of pick sticks was raised by counsel for Coles, as he proceeded through the following page from the “Coles Logistics Safe Work Practice” Manual:

5. [77]

   Mr Smith was asked these questions by reference to that page:

6. [78]

   No other oral evidence was given concerning pick sticks.

7. [79]

   True it is that the experts had exchanged opinions in their reports about the pick stick, and the page of the manual. Mr Dubos had said, by reference to the manual, that “A pick stick was not used in an attempt to drag the box forward on the pallet, but instead Mr Smith overreached potentially”. His report addressed the specific question concerning precautions as follows:

8. [80]

   It will be seen that the mandatory use of pick sticks was listed as one of half a dozen measures which “could” have reduced risks.

9. [81]

   Dr Fairfax agreed that she understood that workers used pick sticks to drag items forward from the rear of the pallet, and said that:

10. [82]

    The experts prepared their reports in 2018. Evidently they proceeded on the basis that pick sticks had been available in 2014. Naturally, the subsequent employment of pick sticks “does not of itself give rise to or affect liability” in respect of the risk of harm to Mr Smith, and “does not of itself constitute an admission of liability in connection with” that risk: s 5C(c). Further, the experts’ evidence falls short of maintaining that an occupier in the position of Coles should (as opposed to could) have mandated the use of pick sticks. To the contrary, Mr Dubos advanced a suite of other measures and when read fairly, measures such as increasing the height of the racking to 2m (he had been asked to assume it was only 1.7m high) and pallet turning were regarded as more important. Mr Dubos stated that these two measures “would” reduce the risk of injury.

11. [83]

    At the conclusion of his report, Mr Dubos provided the following summary under the heading “Controlling the risks of injury”:

12. [84]

    It will be seen that the use of pick sticks is not one of the ways there relied upon by Mr Dubos to control the risks of injury.

13. [85]

    Further, Mr Dubos’ opinions were based on the failure to use a pick stick when Mr Smith dragged the box towards him. But Mr Smith did not give evidence that he dragged the box towards him. Rather, he lifted it up after placing one foot on the pallet.

14. [86]

    There are, with respect, some difficulties with how the primary judge addressed the evidence of Mr Dubos and Dr Fairfax concerning pick sticks. Her Honour addressed the topic on four occasions: at pp 8, 9, 32 and 37 of her reasons. At page 8, after reproducing extracts of Mr Dubos’ report which referred repeatedly to Mr Smith dragging the box towards him, her Honour said:

15. [87]

    Her Honour continued, mentioning other discrepancies between the facts and Mr Dubos’ assumptions, and the fact that he had framed the employer’s duty in terms of ensuring the safety of workers, and saying that his opinion was rendered “of little weight and of questionable admissibility”. It is not clear whether this amounted to a ruling that it was inadmissible; on one view it falls short of going so far.

16. [88]

    At p 9, her Honour referred to Dr Fairfax’ opinion on pick sticks, saying that it “enters into the otherwise irrelevant arena of pick sticks”. That suggests that her Honour regarded the issue as outside the pleadings.

17. [89]

    At p 32, her Honour referred to pick sticks, in conjunction with a criticism of Mr Dubos’ opinions about altering the layout of pallets. Her Honour said that “[t]hese were among the things that Mr Dubos opined ... could – as distinct from would – have reduced the risks of injury”. Her Honour contrasted those matters with two factors which Mr Dubos opined would have reduced the risk of injury, namely, pallet rotating, and raising the first-row shelf height to 2 metres (Mr Dubos had assumed a lower shelf height).

18. [90]

    Finally, at p 37, her Honour in the course of summarising the submissions said:

19. [91]

    On one view, evidence concerning the use of pick sticks was irrelevant because it was outside the case. On another view, the evidence was regarded as turning on a materially different factual assumption, namely, that Mr Smith had dragged the box towards him. On a third view, her Honour regarded Mr Dubos’ evidence as so lacking in probative value that it should be rejected. Her Honour did not, as I read her reasons, definitively express a view, which may reflect the fact that pick sticks were far more prominent in this appeal than they were at trial.

20. [92]

    Notwithstanding that exchange of expert opinion, the case was run on the basis that the issues would be determined on the pleadings.

21. [93]

    This was raised during Mr Catsanos’ closing submissions (which preceded those of Mr Smith), just before the adjournment, after submissions on the use of pick sticks (and the possibility that the pallets should have been more widely spaced so as to permit access to their sides and rear):

22. [94]

    After an initial protest, which appears to have been an attempt to rely upon that class of trial where the parties have agreed to litigate issues beyond the pleadings (cf Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 287; [1990] HCA 11), Mr Catsanos renounced any attempt to contend that because of the exchange of expert reports, the case had expanded beyond the pleadings.

23. [95]

    It would have been open to counsel to seek to have resolved, then and there, whether the case extended to the failure to provide pick sticks as had emerged in the evidence, at the possible risk of an adjournment and costs if it was outside the pleaded case. Other judges might have been less hostile to that course than the primary judge appears to have been. Nonetheless, counsel chose not to do so, in circumstances where it was plain that Coles was insisting on Mr Smith and Ready Workforce being confined to the pleaded case and the judge was proceeding on the same basis. Indeed, the judge had already hinted her tentative view, contrary to Mr Smith and Ready Workforce, when she said “I thought it was all about training and supervision”.

24. [96]

    The submissions advanced by Mr Flett on behalf of Mr Smith did not take the matter any further.

25. [97]

    As noted above, it is unclear from her Honour’s reasons whether her Honour proceeded on the basis that the use of pick sticks was outside the pleadings, notwithstanding the exchange in final addresses between her and Mr Catsanos reproduced above. Her Honour’s reference to “the otherwise irrelevant arena of pick sticks” is difficult to reconcile with any other possibility, but the other places in her reasons which mention pick sticks have a different force.

26. [98]

    The pleadings and particulars did not mention the absence of pick sticks. It seems reasonable to assume, based on the expert reports, that both parties proceeded on the basis that pick sticks were available (as they seem to have been in 2018 when the expert reports were prepared). It is difficult to see how the unavailability of pick sticks could have been regarded objectively as part of Mr Smith’s or Ready Workforce’s case. Rather, it was a fortuitous development which occurred, no doubt to the surprise of the cross-examiner, when Mr Smith said he had never heard of them. There could be no criticism of counsel for Mr Smith and Ready Workforce seeking to take advantage of that development in their clients’ interests. However, it was made clear by Coles and the judge that the trial was going to be determined on the basis of the pleadings. Her Honour expressly rejected (in relation to submissions concerning a reconfiguration of the racking) the proposition that “effectively anything raised in the expert report should be treated as having been particularised” (reasons pp 28.8 – 29.2).

27. [99]

    Her Honour was well placed to determine whether Mr Smith’s case as pleaded and particularised extended to the use of pick sticks. I see no error in the primary judge regarding the use of pick sticks as irrelevant insofar as they were outside the pleaded case, if that is what her Honour did.

28. [100]

    Pleadings in a case such as this ought to descend to the things which the plaintiff had to prove if he were to obtain judgment, including the precautions which, so he contended, a reasonable person in the position of Coles would have employed. I see no reason why the statement by Gageler and Edelman JJ is inapplicable to Mr Smith’s action for negligence, modified as it was by s 5B of the Civil Liability Act:

29. [101]

    But the matter may also be addressed substantively, and, in light of aspects of the reasons of the primary judge which are uncertain, it is appropriate to do so. I am unpersuaded that the use of pick sticks would amount to a basis for concluding breach of duty if the point were considered on its merits.

30. [102]

    There are two mentions of pick sticks on the relevant page of the Safe Work Practice manual (which has been reproduced above). One, at the bottom of the page, under the heading “Picking at Height”, there is the statement, “Ensure you use a pick stick to pull cartons/objects forward from the rear of the pallet”. The other, to which a great deal of attention was given during the appeal, was under the heading “First Level Picking”. It was the fourth entry. The first three concerned lifting. The fourth entry provided:

31. [103]

    When the document is read as a whole, it seems tolerably clear that the use of pick sticks had nothing to do with a lift of an item from the first level where there was a flat surface, as opposed to a gravity feed. The sense of the entry which was treated as critical for the purpose of the appeal is that in cases where there is a gravity feed (which I understand to refer to items being stored on a slope, such that they are assisted by gravity to slide down towards the aisle) and an item is stuck away from the employee's immediate reach, then rather than overreaching for it, or rattling the shelving to cause it to descend, a pick stick should be used instead.

32. [104]

    That is the ordinary meaning of the words used. That is confirmed by the second reference to pick stick – “Ensure you use a pick stick to pull cartons/objects forward from the rear of the pallet”. That applies only to “Picking at Height”. If the instruction were to use pick sticks for all items at the rear of a pallet, then there would be no reference to a gravity feed, and the second reference to pick sticks would not be confined to items which are picked at height.

33. [105]

    This was pointed out during the hearing:

34. [106]

    After referring to Dr Fairfax’s evidence, counsel continued:

35. [107]

    As was suggested by Emmett AJA’s question, I do not think what was said on behalf of Ready Workforce is right.

36. [108]

    First, there is a misreading of the Safe Work practice page. If pick sticks should have been used even for “First level picking”, why would not that have been said in simple terms? Why is the general instruction to use pick sticks to pull items from the rear of the pallet confined to “Picking at Height”?

37. [109]

    Secondly, 16.4kg is quite heavy. It is heavier than a 15kg bag of chemicals, and approximately as heavy as a case of wine. The idea that one would apply sufficient force to cause such a box to move, on a flat surface, and then sustain that force until the box approached the edge of the pallet adjoining the aisle seems counterintuitive, although there is no evidence of the smoothness of the bottom of each box and the surface of the pallet, or the coefficient of friction involved.

38. [110]

    Thirdly, the attachment to the pole seems ill-designed to achieve a grip on the edges of the box. Indeed, it is not difficult to contemplate circumstances where the grip fails, potentially causing injury to the worker. It is far from obvious to me that it would be safe to drag the box with the stick in this manner.

39. [111]

    The primary judge made no finding as to how a pick stick would be deployed. If, favourably to Mr Smith and Ready Force, the pleaded case extended to the use of pick sticks, then it is clear that her Honour was unpersuaded that Mr Dubos’ opinion concerning pick sticks had any material probative value. It was premised on Mr Smith dragging the box towards himself, which is contrary to the findings. And it fell short of amounting to evidence capable of satisfying s 5B. Mr Smith and Ready Workforce ask this Court to find that (a) the use of pick sticks was a precaution which a reasonable person in Coles’ position would have taken, and (b) if it had been taken, then Mr Smith would not have incurred his injury.

40. [112]

    There is no obligation on a court to accept even unchallenged expert evidence. The evidence of Mr Dubos and Dr Fairfax did not in any event go so far as to warrant the two findings which are necessary to Mr Smith’s case. I am not persuaded that the pick sticks were even viable, let alone that their use was so obvious that a reasonable person in the position of Coles would have mandated their use in a situation such as that encountered by Mr Smith.

41. [113]

    The primary judge quite carefully attended to what precisely happened. In light of ground 11 of Mr Smith’s appeal, it is desirable to reproduce the relevant portions of pp 22-24 of her reasons:

42. [114]

    (I interpolate: as noted above, Dr Fairfax’s dimensions are demonstrably wrong, and those given by Mr Dubos are not “slightly” different: the difference is between 200 and 290mm, or 45%.)

43. [115]

    Nothing turns on the erroneous dimensions of the box. The reasoning summarised above was grounded in Dr Fairfax’s analysis of a person’s horizontal and vertical reach, and evidence that Mr Smith was trained to pick a box at ground level by first placing it on its edge to increase its height. It was clear from Dr Fairfax’s evidence that she considered a box weighing 16.4kg could be safely lifted even if it was considerably more than the 10cm or so in front of Mr Smith. It is also clear that the primary judge proceeded on the basis that the evidence permitted her to find that the lift could be made safely, even though the precise location of the broken slat was not specified in the evidence.

44. [116]

    In one respect, the primary judge may have proceeded on a basis unduly favourable to Mr Smith. Accepting that Mr Smith was 1.82m tall, the heel of his work boots was 4cm, and the pallet was 15cm high, his height when standing on the pallet was 201cm. This was slightly higher than the bottom edge of the rack above him. Her Honour appears to have accepted submissions that he could not stand upright while on the pallet. That does not seem right to me. He could not stand upright on the edge of the pallet immediately below the horizontal beam supporting the upper level. But anywhere else on the pallet, there was an additional 110mm clearance. If there were a pallet above, then it was no lower than the top of the upper beam. That is obvious as a matter of how pallets are supported, and may be seen in the photograph of bay DD351 taken in 2018. As presently advised I see no reason why it would not have applied to bay DD291 in 2014. But on the view I take it is not necessary to express a concluded view on this point, which was not the subject of argument.

45. [117]

    Significantly for present purposes, as has been seen, the judge’s reasoning was supported by an analysis of the dimensions of the box and the pallet, and the unchallenged evidence of Dr Fairfax as to the means by which persons of Mr Smith’s height could, and should, lift a box weighing 16.4kg.

Overview of the position

1. [118]

   The onus at all times rested with Mr Smith, insofar as his action depended upon Coles’ failure to take precautions against the risk that he might suffer injury, (a) to identify one or more precautions on which he relied, (b) to establish that a reasonable person in Coles’ position would have taken those precautions, and (c) to demonstrate that if those precautions had been taken, he would not have suffered injury.

2. [119]

   It was accepted at trial that, at least on paper, Coles had established a safe system of work. I did not understand it to be in issue, at least in this Court, that but for Mr Smith failing to lift the box in accordance with his training – by flexing his abdominal muscles, not bending his back, and not twisting his body – the lift would have been performed safely. After all, that was the opinion of Mr Dubos, the expert on whom Mr Smith relied. That is not sufficient in order for Coles to succeed. Coles owed obligations as if it were, or at least akin to those owed by, an employer, and that extended to taking steps bearing in mind the possibility that Mr Smith might, through thoughtlessness, inadvertence or carelessness, depart from his training.

3. [120]

   The first question was to determine, by reference to all the evidence, the mechanics of the injury, if it was possible to do so. Her Honour found that the box could not have been lifted safely without Mr Smith bending his knees or lunging. It followed that the “height of the shelf above the carton is irrelevant so long as there was room to approach with knees bent by squatting or lunging, as there was on all measurements” (reasons, p 30.6). (Hence the observations above about an additional 110mm clearance when Mr Smith was standing on the pallet would not have affected her Honour’s reasoning.)

4. [121]

   Section 5B(1)(c) required an analysis of the precautions which, according to Mr Smith and Ready Force, a reasonable person in the position of Coles would have implemented. In this Court’s decision in Transpacific Industrial Solutions Pty Ltd v Phelps [2013] NSWCA 31, also a “host employer” case, that was the analysis employed. Barrett JA, with whom McColl and Basten JJA agreed, reproduced in this context what had been said in O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230; [1954] HCA 11:

5. [122]

   Her Honour then addressed the series of measures advanced by Mr Smith or Ready Workforce as precautions that ought to have been taken, rejecting each one. A somewhat simplified and reordered summary of her Honour’s reasoning is as follows:

6. [123]

   Her Honour addressed the submissions concerning the arrangement of the pallets, so as to leave gaps providing better access. The precaution which was advanced was a 40cm gap in the middle of each bay. Her Honour said of this:

7. [124]

   That approach reflected the requirements of s 5B(1)(c). I would add that placing each laden pallet hard against the side of each vertical pole at the edge of the bay invites the risk of collision between pallet and pole. It is clear that some of the hundreds of pallets deposited in that fashion each day would contact the poles.

8. [125]

   Pallet rotation: The primary judge addressed the submission that half empty pallets should have been turned around, so as to prevent the need for a picker to reach to the rear of a pallet. Here her Honour was faced with the opposing opinions of two experts, neither of whom was cross-examined. Her Honour was critical of Mr Dubos’ opinion because he did not engage with the detail and the consequences of the proposal. As her Honour said, in Mr Dubos’ account:

9. [126]

   This Court is in approximately as good a position as the primary judge in considering which of two experts who expressed diametrically opposed views, but neither of whom was cross-examined, is to be preferred. I see no error in her Honour accepting Dr Fairfax’s evidence, which included that using a forklift or pallet jack to remove pallets from pick bays was “impractical and potentially dangerous”, causing large scale problems, causing congestion, and “[i]nevitably, there would be accidents involving forklifts, pallet trucks and people and it would be very hazardous for staff picking in the aisles.” Dr Fairfax concluded that “I do not consider this to be a reasonable control measure”.

10. [127]

    It is to be firmly borne in mind that the suggestion that pallets be rotated means that every pallet of the multitude which arrived each day must be lifted, rotated and replaced in the bay at some stage during its time in the centre and when it was half empty and (ex hypothesi) unbalanced. Another way of putting this is that pallet rotation means an additional pallet movement for every pallet at a time when it is unbalanced. To my mind, this precaution has the same air of unreality as placing the pallets hard against the edges of the bay in order to obtain a 40cm gap between the pallets.

11. [128]

    Training: Her Honour rejected the submissions based on training, on the basis that there was substantial evidence of training, that Mr Smith accepted that he knew how to lift, and that:

12. [129]

    Breaks/task rotation/fatigue/failure to warn of risk: Her Honour also rejected the case based on rest breaks, task rotation, and fatigue, on the basis that there was no evidence that Mr Smith was tired, lacked adequate rest breaks or had any lack of adequate rotation of tasks. Her Honour observed that there were ample warnings in the material which Coles made available to Mr Smith, including how not to lift.

13. [130]

    Bonuses: Arguably this aspect of Mr Smith’s case was not a precaution which a reasonable person in Coles’ position should have taken, but rather a positive aspect of the system which led to injury. But it is not necessary to determine whether that is so, or the consequences, which in any event was not part of any party’s submissions. There was uncontroversial evidence of a system which was put in place for bonuses to be paid if Mr Smith achieved his KPIs. But it lacked detail. Her Honour observed that the evidence did not permit her to make any assessment of the prescribed time limits. Her Honour also said the following:

14. [131]

    I see no error in the way her Honour addressed those precautions, many of which gave rise to grounds of appeal.

Mr Smith’s appeal

1. [132]

   Mr Smith’s notice of appeal contained 14 grounds. His written submissions were directed to each ground. His counsel’s oral submissions were not. He said that “What I was seeking to do was to cover in a generic way matters which might not have been picked up directly in our written submissions”. This illustrates the problem of far too many grounds of appeal.

2. [133]

   Mr Cranitch summarised the position as follows:

3. [134]

   I cannot accept this, for the following reasons. First, I disagree that the analysis starts and ends with the concededly imprecise testimonial evidence of Mr Smith, and ignores the uncontroversial dimensions of pallet, box and beams. Secondly, to say that “about a third of the distance that you’re unable to put you feet in, on any analysis of it” materially overstates the difficulty caused by a broken 95mm slat. Thirdly, Mr Smith was not “obeying all the requirements he had to perform”; he candidly conceded he was lifting improperly, and twisting. Fourthly, the solution of the pick stick was not “obvious”. It had not been pleaded or opened. It arose during the trial, was seized upon by Mr Smith and Ready Workforce, but her Honour appears to have regarded it, in my view correctly, as outside the pleaded case. If that were not so, I remain unpersuaded that the use of a pick stick to drag a 16.4kg box across a pallet is a precaution which a reasonable person in Coles’ position would have adopted.

4. [135]

   Although that addresses what was prominent in oral submissions on appeal, I see no option but to address each of the grounds in turn, elaborating where appropriate based on Mr Cranitch’s oral submissions. I raised this during the hearing (“[Y]ou’ve taken the course of making some more general submissions without reference to the 14 grounds. Speaking for myself, my approach would be to deal with each of the grounds in the notice of appeal, deal with the written submissions, slot into those as best I can the oral submissions that are being made today, and do them in order.”) However, in light of what has already been said, I can be quite concise.

5. [136]

   This is conclusionary, and fails to have regard to s 5B. Insofar as his case was based on the failure to take precautions, it was necessary in order to establish breach for Mr Smith to identify some precaution which an occupier in the position of Coles would have taken.

6. [137]

   Large portions of Mr Dubos’ report were ruled inadmissible or admissible only as assumptions at the third day of the hearing – not that this would be obvious to a casual reader of the appeal books. None of the paragraphs which were rejected, and none which had been admitted only as assumptions, was marked. I only appreciated this when working through this ground of appeal.

7. [138]

   Those preparing the appeal books need to indicate what portions of evidence have been rejected and what has been admitted conditionally, as required by UCPR r 51.29(2)(a)(ii)-(3). It is important in every case, but vital where as here a ground of appeal is the wrongful rejection of documentary evidence.

8. [139]

   While on the topic of deficient appeal books, it would be as well in an appeal where quantum was not in issue to recall that the appeal books must contain only the documents “relevant and necessary” for the hearing and determination of the appeal: UCPR r 51.29(1)(b), and so the hundreds of pages of medical and financial documents tendered at trial on Mr Smith’s case for damages (which constitute the majority of the appeal books) should have been excluded.

9. [140]

   If I had reached a different conclusion on the outcome of the appeal, I would have favoured a special costs order concerning the cost of preparing appeal books which do not comply with the rules and fall short of the standards required in this Court; cf Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [61]-[70].

10. [141]

    A deal of Mr Dubos’ report was rejected, or else admitted on a limited basis. For all the effort that was directed to objections (which occupy some 60 pages of transcript on the third day of the trial), no one thought it advisable to elicit from Mr Dubos how much of his opinions continued to be applicable to the very different facts as they emerged at the trial. In particular, despite Mr Smith’s acceptance that he was lifting a 16.4kg box of bottled water, despite the evidence of the racking being 1.99m high, and despite the evidence of the absence of pick sticks, no attempt was made to cause Mr Dubos to revisit his assumptions. As it happens, the lay evidence was given on 1 and 2 July 2019, with the objections and submissions taking place the following week, 10 and 11 July 2019, so there was ample opportunity to do so.

11. [142]

    Naturally, expert evidence is only of value if the assumptions upon which it is based are supported by evidence. That does not mean that “the facts so proved must correspond with complete precision to the proposition on which the opinion is based”: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 at 846. Their Honours cited with approval a passage from Wigmore on Evidence that “the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect”; see also Keith v Gal [2016] NSWCA 152 at [93]. But the difference between the height of the racking and the weight of the box that Mr Dubos was asked to assume and the evidence was material.

12. [143]

    In all of those circumstances, there was no error in the approach taken by the primary judge. The report was prepared on the basis of assumptions which very substantially were not made out.

13. [144]

    This ground is not made out.

14. [145]

    This has been addressed above.

15. [146]

    Enough has already been said in order to resolve these three related grounds. The primary judge concluded that the broken slat did not prevent Mr Smith from getting close enough to the box to perform a safe lift. It has not been shown that the approximately 10cm gap between Mr Smith’s foot and the box had any impact upon the safety of his lift. Her Honour was with respect correct to regard the evidence about the slat as a distraction. These grounds are not made out.

16. [147]

    Mr Flett’s re-examination of Mr Smith was brief. It occupies pp 101-103 of the transcript. There were two occasions where the primary judge intervened.

17. [148]

    In cross-examination, Mr Smith had been taken to a manual handling document, and asked these questions:

18. [149]

    In re-examination, Mr Smith was taken to p 80, and was asked “Was it after training?” when the trial judge interrupted saying “Re-examination. Where’s the ambiguity in the answer?” Counsel then asked “Did you have to use your commonsense and self-assessment?” and again the primary judge intervened saying “Where’s the ambiguity in the answer?” The transcript does not record Mr Flett identifying any ambiguity in the answers, or indeed attempting to cavil with the rulings of the primary judge.

19. [150]

    There was one other passage where Mr Flett was cut off:

20. [151]

    The references to “two plaintiff’s goes” and “”third free kick” are references to the fact that Mr Smith was led in chief, and then asked further questions (not all of which were non-leading) by Mr Catsanos, although his interest was relevantly identical.

21. [152]

    It is not quite clear from the transcript what part of the cross-examination this attempt at re-examination was directed to. No submission was made as to what the question was. Further, there was no explanation, or evidence, of the question which would have been asked or the answer likely to have been given to the primary judge. These difficulties were exposed thus:

22. [153]

    The onus lies on the appellant to demonstrate an entitlement to ask the question, and that it might have made a difference. I do not accept that any error has been made out in the trial judge’s rejection of the questions which were sought to be asked.

23. [154]

    No oral submissions were directed by Mr Smith to this ground. The written submissions assert that “[h]er Honour should have made a finding of fact that the pallet on which the carton was sitting was inaccessible from the sides and the rear”. This is because, so it was said, such a finding, together with a broken slat and the absence of a pick stick caused it to become reasonably clear that Mr Smith had no choice but to bend his back in the way he did to obtain access to the carton.

24. [155]

    There was no dispute that it was not possible to access the pallet from the side or the rear. That was implicit in her Honour’s reasoning. Such a finding would make no difference. The material findings were that the broken slat was not shown to have sufficiently prevented Mr Smith’s access to the box to prevent a safe lift from being performed.

25. [156]

    The primary judge rejected the submission based upon leaving a 40cm gap between each pair of pallets on the basis that it was tentatively offered by Mr Dubos, without analysing the consequences it would have upon the operations of the warehouse.

26. [157]

    No oral submissions were directed to this ground.

27. [158]

    The written submissions asserted that broken slats on pallets was “common”. No reference was given to such evidence. There was evidence that “from time to time” pallets get damaged, including cases where the damage was not known until the stock was taken off. No foundation was laid for the submission that “the evidence of Mr Tryhuba and the uncontradicted evidence of Smith … suggests that the problem was not only common but was well known to be common”. Indeed, it is not clear to me what “common” means in this context – there was evidence that the warehouse occupied 65,000m2 and had 200-300 people working in it at any one time.

28. [159]

    A minor point made in the written submissions is that the primary judge reproduced on pp 42-43 of her reasons two questions and answers which had been rejected. But it was not submitted that the error was material, and I fail to see how it could have been.

29. [160]

    These pages have been reproduced above. The exchange with Mr Catsanos preceded Mr Fleet’s closing submissions. It was perfectly plain that her Honour was considering the evidence of the dimensions of the pallet, the slats, the box, the racking and Mr Smith’s evidence. How else was she to determine the mechanism of what occurred?

30. [161]

    Further, Coles’ written submissions (which were provided and to which Mr Parker spoke before Mr Catsanos or Mr Flett commenced their address) analysed in some detail the evidence concerning the height of the pallet, the racking, Dr Fairfax’s evidence about Mr Smith’s reach (see especially Black 428-429). At trial, Mr Parker made this submission orally:

31. [162]

    It should have been clear, and I see no reason to doubt that it was in fact clear at the time, that the primary judge was attempting to understand the evidence so as to make findings about the basic mechanics of the incident, and to resolve the submissions she had received on that fundamental issue. This was necessarily based on the height of the racking, the dimensions of the pallet and the boxes, and the location of the broken slat. This was reflected in the exchanges during submissions, some of which have been reproduced above. There was no denial of procedural fairness.

32. [163]

    Mr Cranitch characterised what occurred very differently:

33. [164]

    I disagree. What her Honour did was appropriate, was foreshadowed, and was based on the only uncontrovertibly reliable evidence of the dimensions of the pallet, the box, the racking and Mr Smith’s height.

34. [165]

    Despite the potential breadth of this ground, the submissions in support of it (which occupy less than half a page) turned on the failure to issue a pick stick. This is not established, for the reasons already given. The evidence concerning Mr Smith’s training, and his accepted departure from that training, has been summarised above.

35. [166]

    This has been addressed above. In short, there was no evidence of what the KPI or the bonus was, although there was evidence that workers sought to achieve it and that the extra money mattered to them. Mr Cranitch submitted that her Honour “ignored the pressures upon the appellant ... in terms of working at speed”. I disagree. The primary judge explicitly found that Mr Smith was not rushing. Indeed, Mr Smith gave no evidence that he was rushing. The primary judge found that the bonus system was not causally connected with the injury. No basis has been established to overturn that finding.

36. [167]

    This ground is not wholly without merit. Part of the reasons of the primary judge appear to proceed on the basis that once Mr Smith departed from the modes of lifting he had been trained to follow, then there could be no breach. But that does not exclude the possibility of other precautions, which a reasonable person in Coles’ position would have put in place, and which would have prevented Mr Smith from suffering the injury. As Mr Cranitch put it:

37. [168]

    While the work was not “repetitive” in the sense of an assembly line, it may be accepted that Coles was required to identify unnecessary risks, including those which might arise through a worker’s inadvertence or carelessness. As French CJ, Kiefel, Bell and Nettle JJ explained in Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31 at [53]:

38. [169]

    I am prepared to proceed, favourably to Mr Smith, on that basis. But I remain unpersuaded that there was material error. Ultimately, Mr Smith needed to identify a precaution which a reasonable person in the position of Coles would have taken. The use of pick sticks was outside his case, and I am not persuaded they were a practical precaution which an occupier in the position of Coles would have used. The other matters which were proposed were found by the primary judge to be impracticable (such as rotation of pallets as they became empty, or making available access corridors down the sides or at the rear of pallets). This ground is not made out.

Ready Workforce’s appeal

1. [170]

   Ready Workforce provided the 17 paragraphs of particulars in support of its claim under s 151Z. They are in annexure “B”. Coles’ defence identified precisely the same 17 paragraphs as particulars of an allegation of contributory negligence. None of these particulars could have been drafted with Mr Smith’s claim in mind. To take the most obvious, particular (l) of negligence: a “failure to guard the worker”. What can this mean? Why did Coles respond by saying that one way in which Mr Smith was at fault was his failure to guard himself? The common law has a long tradition of fictional allegations (notably the Bill of Middlesex) but those days are long since past. Whatever be the reason for these formulaic particulars, it is clear that one cannot expect that the case pleaded and particularised by Ready Workforce will be more extensive than that put by Mr Smith. There is, of course, nothing in the particulars concerning pick sticks, or providing any basis for concluding that the use of pick sticks was somehow wider in Ready Workforce’s case than in Mr Smith’s case.

2. [171]

   Ready Workforce’s first ground (“The trial judge erred in concluding that [Coles] was not in breach of the duty of care it owed to [Mr Smith]” is conclusionary. Ground 2 was substantially identical to ground 2 of Mr Smith’s appeal and fails for the same reasons.

3. [172]

   These grounds fail for the same reason as ground 14 of Mr Smith’s appeal.

4. [173]

   This formulaic ground, not accompanied by any submissions directed to it, does not assist.

5. [174]

   These grounds are unhelpfully vague. All are factual, and a complaint of “failing to take proper account” in isolation does not much assist; the real question is what finding of fact Ready Workforce is asking the appellate court to make. Concerning (a) and (b), a large part of the judgment is concerned with the effect of the broken slat upon Mr Smith’s access to the box, and for the reasons I have sought to give above, I see no error in her Honour’s conclusion that the broken slat was ultimately a distraction. The complaint about pick sticks has also been addressed above. The complaints about training and annual reviews are addressed below, when dealing with ground 15. The complaints about working at fast rates and the “prevalence” of broken pallets is addressed by grounds 13 and 9 respectively of Mr Smith’s appeal.

6. [175]

   The written submissions focussed on the lack of access along the sides of pallets, and the arithmetic which yielded the possibility that a 400mm gap could be created between each pair of pallets. It was put that:

7. [176]

   Her Honour did have regard to this, at length, at pp 31-32 of her judgment, parts of which have been reproduced above. Her Honour was correct to state that there was no analysis of the advantages and disadvantages of a 400mm gap down the middle of the bay. It seems a very narrow gap for workers to step into. As mentioned above, it would appear to have the consequence that every single pallet unloaded each day would be hard against the vertical poles of the racking, and that presumably carried with it risks of damaging the pallets and the racking. There was no analysis of the risks or costs of this measure. Surely it is obvious that in a busy warehouse, with many, many fully laden pallets being deposited each day, no rational operator would instruct the forklift drivers to place the pallets hard adjacent to the structural pillars supporting the racking on the side of each bay. Surely one needs to undertake no analysis of the lateral strength of the poles to see that the suggestion carries with it risks of damage to the pallet and the racking.

8. [177]

   This ground is not made out.

9. [178]

   First, the evidence was not uncontroversial. Mr Smith maintained until the end of the trial that the overhead racking was 1.7m high.

10. [179]

    Secondly, since the overhead rack was 1.99m high, there was no difficulty with access to the box using a lift placing one foot on the pallet and leaving one foot on the floor of the aisle.

11. [180]

    Thirdly, as noted above, it seems probable that the actual overhead clearance on all of the pallet save the edge underneath the beam exceeded 1.99m.

12. [181]

    This ground is not made out, for the reasons given in response to ground 11 of Mr Smith’s appeal.

13. [182]

    Insofar as this ground is directed to the re-examination of Mr Smith by Mr Flett, it has been addressed above.

14. [183]

    Insofar as this ground is directed to Mr Catsanos, the exchange giving rise to this ground of appeal occurred at pages 104-105 of the transcript. It was framed in terms of an application for leave to ask further questions in chief, although Ready Workforce had not called Mr Smith in its case. In the absence of the witness, there was this exchange:

15. [184]

    The exchange continued, but what has been reproduced above captures its flavour.

16. [185]

    Ready Workforce contended, by reference to Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 at 478, that the question was whether the interests of justice were better served by allowing or rejecting the application, and put that this was “acutely” relevant evidence. Let that be assumed. The question on appeal is whether there was House v The King error in the trial judge refusing the application for further cross-examination. It is quite plain that this was a dynamic trial, highly dependent upon what was said by the lay witnesses, not all of which could have been anticipated. I see no error in refusing further cross-examination from a party whose interest was relevantly identical to that of the plaintiff, whose cross-examination had been required to precede that of Coles, and who wished to undertake further cross-examination consequent upon that undertaken by Coles.

17. [186]

    The written submissions of Ready Workforce were grouped in terms of topics rather than grounds. These grounds are specifically addressed in two places in the written submissions.

18. [187]

    First, although there is a heading above paragraph 76 “The Bonus System and Coles’ Knowledge of the Risk of Harm”, the only submission made was that it was known that there would be workers who from time to time did not lift properly. That evidence was uncontroversial. It is important, and means that it is not sufficient for Coles, in order to defeat a claim of negligence, merely to have put in place a safe system. But that only leads to an inquiry as to what further precautions a reasonable person in the position of Coles would put in place.

19. [188]

    Secondly, the submissions referred to the evidence that the yearly review of safe procedures took place only in a few minutes, and that the witness called by Coles did not conduct Mr Smith’s review. A criticism was then advanced of the reasoning of the primary judge, insofar as it “ignored entirely the worker’s unimpeached evidence that this review took less than 10 minutes”. It was said that this “entirely ignores the objectives of review and re-training and bespeaks error in excusing yet another flaw in the Coles system”. In oral submissions, it was said that the system provided by Coles “was really a lip service approach”. Ready Workforce referred to the evidence that the annual review took about 5-10 minutes, or alternatively 10-15 minutes (this came from other witnesses; Mr Smith himself could not remember), and complained that “well in excess of half an hour” was required to discuss and reinforce the procedures in place.

20. [189]

    But what turns on this? This criticism was made of page 13 of the 83 page judgment, when her Honour was summarising the evidence. No attack is made on the dispositive parts of the reasoning. Indeed, in this section of the reasons, her Honour stated:

21. [190]

    If there is an error here, it was not material. Suppose the review had taken twice as long. The onus lay on Mr Smith to establish that that would have prevented his injury. There is no basis in the evidence for drawing any such conclusion.

22. [191]

    It follows that each of Mr Smith’s and Ready Workforce’s appeals should be dismissed.

Coles’ appeal against Chandler Macleod

1. [192]

   Coles has in fact filed two separate appeals against Chandler, which have been given file numbers of 2020/55981 and 2020/55990. Each is identical. Although separate judgments for nominal damages were entered, a single appeal would have sufficed, and, except when dealing with orders, I shall refer, for simplicity, to Coles’ appeal (singular), which was the course followed in the parties’ submissions, reflecting the fact that the second notice of appeal was not included in the Red Book. In this appeal brought by Coles against Chandler, the issue is very narrow.

2. [193]

   Coles’ cross-claims against Chandler were based on a service agreement between the two companies. Consistently with this Court’s earlier decision between the same parties on the same contract in Coles Supermarkets Australia Pty Ltd v Ready Workforce (a Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140 at [109], Coles’ appeal did not extend to the rejection by the primary judge of Coles’ claim for an indemnity from Chandler.

3. [194]

   The remainder of the cross-claim was a claim for damages for breach of a contractual obligation upon Chandler and its subcontractors and their agents to comply with all reasonable directions of Coles and, when onsite, the OH&S requirements and any other reasonable on-site procedures (this was cl 3.2(b) and (c)). The primary judge found that Mr Smith’s conduct in failing to adhere to directions was to be imputed to Ready Workforce and to Chandler, constituting a breach of the agreement.

4. [195]

   Coles had contended that the irrecoverable costs incurred by it in defending the claims of Mr Smith and Ready Workforce were damages it could recover for the breach of the agreement. It tendered no evidence of its actual costs or of its likely partial recovery.

5. [196]

   Her Honour awarded nominal damages of $100 on the basis that Coles had not established any loss caused by that breach. Her Honour said:

6. [197]

   There was no challenge by Chandler to the finding of breach (contrary to its submissions responding to an appeal by Coles in the Gray litigation heard the following day and determined on the same day as this judgment). It follows that this Court’s decision in the current appeal is not authority for the correctness of the finding of breach. It is an assumption, favourable to Coles, which is required to be made by this Court as a consequence of (a) Coles not contending at the second trial that Chandler was bound by the first decision, and (b) Chandler advancing inconsistent positions in this Court in the two appeals. (I should not be understood as being critical of Chandler. Faced with defending a judgment against it for nominal damages, I can easily see how it might be rational not to file a cross-appeal contending there was no breach.)

7. [198]

   Two submissions were advanced by Coles on its appeal. First, it was put that in the absence of any submissions from Chandler or warning from the primary judge that Coles had not established its case, Coles was denied procedural fairness. Secondly, it was put that pursuant to UCPR r 36.1 the appropriate order was “[Chandler] should pay [Coles’] costs of defending the actions by … Mr Smith and Ready Workforce after taking into account such recovery as may be received from either plaintiff”. Both aspects may be resolved together.

8. [199]

   A logically anterior question is whether the order sought by Coles could be made by the District Court under r 36.1 (or some other power). Such an order has problematic aspects. Was there power in the District Court to make such an order? How and when could it be enforced? The amount recoverable from Chandler could not be determined until Coles’ entitlement to costs from Mr Smith and from Ready Workforce had been resolved. Did the order mean that Chandler had an entitlement to be heard on, say, any contested assessment of party party costs between Coles and Ready Workforce? Was Chandler bound by a compromise between Coles and Ready Workforce of the quantification of the costs order? Was Coles under an implied obligation to take reasonable steps to enforce its entitlement to costs? I pass over all of these matters because no aspect of them was explored in the parties’ written or oral submissions.

9. [200]

   First, Coles did not seek any such order. Coles’ cross-claim relevantly sought “Damages”. If there were particulars, they were not in evidence.

10. [201]

    Secondly, there was no splitting of the trial, and in particular there was no separation of damages from issues of liability. I fail to see why it is procedurally unfair to rule against a party which adduces no evidence of its loss following a trial on all issues. The onus lay on Coles to establish not only the existence but also the amount of its loss: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 80, 88, 99, 118 and 137; [1991] HCA 54; Berry v CCL Secure Pty Ltd at [28]. The time to do so was at the trial of its cross-claim. Yet Coles gave no evidence of its likely irrecoverable costs, although such evidence could readily have been given, and so far as I can see without great difficulty, by a solicitor or a costs assessor. The position might be different with an unrepresented litigant, but Coles was represented by solicitor and senior counsel.

11. [202]

    Thirdly, Coles’ entitlement turns upon its irrecoverable costs being recovered as damages caused by a breach which may be imputed to Chandler. But that raises a question of causation, as was raised during the hearing.

12. [203]

    The submission, which was repeated, conflates “but for” causality with the “common sense” test applied at common law for breach of contract. This is quite wrong. The submission misunderstands March v Stramare.

13. [204]

    March was a tort case. It is clear that a but for test for causation is “inadequate as a comprehensive positive test” (as the joint judgment in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6; [1995] HCA 5 observed), even in tort and even in those areas unaffected by statutes such as s 5D of the Civil Liability Act. The position is no different in contract. As McHugh J explained in Commonwealth v Amann Aviation Pty Ltd at 174-175:

14. [205]

    March rejected the sufficiency of a “but for” test of causation, and reaffirmed (over McHugh J’s opposition) the traditional so-called “common sense” direction to juries.

15. [206]

    True it is that but for Mr Smith’s failure to adhere to directions, he would not have been injured, he would not have received workers compensation, and neither he nor Ready Workforce would have sued Coles, without success, and caused Coles to incur costs beyond those recoverable pursuant to the costs orders. But Coles needs to establish more than the fact that it would not have incurred irrecoverable costs but for Mr Smith’s breach.

16. [207]

    The irrecoverable costs incurred by Coles were not caused by the breach by Chandler in this sense. The intervention of the decisions by Mr Smith and Ready Workforce to sue, and the separate choices made by Coles in how to defend the claims (whether to brief senior counsel, whether to require experts to attend for cross-examination) and the separate decision of the court to make costs orders, preclude a characterisation of Coles’ costs as being caused by Chandler’s breach as a “value judgment involving ordinary notions of language and common sense”, in Deane J’s words. I would also accept the submissions advanced by Mr Cheshire SC who appeared for Chandler:

17. [208]

    There is probably a fourth reason why Coles’ appeal must fail, although it was not argued. “Remoteness” in the law of contract is an ambiguous term, as is emphasised in J Edelman, McGregor on Damages (20th ed, Sweet & Maxwell, 2018), pp 102 and 179. Sometimes it is used in connection with the factual determination of causation, as Lord Wright did in Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196 at 225. But for the most part, it refers to the body of principles which limit the recovery of damages to those within the parties’ reasonable contemplation, as McHugh JA observed in Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 363. To my mind, it is very difficult to see how Coles’ irrecoverable legal costs fall within those principles. But since this point was neither argued nor is necessary to resolve this appeal, nothing more need be said of it.

18. [209]

    It follows that Coles’ appeal should be dismissed.

Orders

1. [210]

   I propose that each of the appeals brought by Mr Smith, Ready Workforce and Coles (in the case of Coles, both 2020/55981 and 2020/55990) should be dismissed. As presently advised, costs of each appeal should follow the event. If there is a basis for some different order, application may be made within the period specified by UCPR r 36.16.

Annexure “A”

1. [211]

   Particulars of Coles’ negligence as alleged by Mr Smith.

Annexure “B”

1. [212]

   Ready Workforce’s particulars of negligence, which corresponded to Coles’ particulars of contributory negligence.

2. [213]

   EMMETT AJA: These three appeals arise out of an injury to his back suffered on 10 May 2014 by the appellant in two of the appeals, Mr Matthew Smith (the Worker), when he leant forward to lift a carton containing bottles of water from the back of a pallet in the course of his duties while working as a picker/packer at the distribution centre operated by Coles Supermarkets Australia Pty Ltd (Coles) at Smeaton Grange (the Premises). Coles is the respondent in the two appeals brought by Mr Smith and the appellant in the third appeal. The respondent in the third appeal is Chandler Macleod Group Limited (Chandler).

3. [214]

   The Worker sued Coles in the District Court of New South Wales. The Worker was entitled to workers’ compensation from his employer, Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Ready Workforce), a related corporation of Chandler. Ready Workforce also sued Coles in the District Court for recovery of the workers’ compensation paid to the Worker pursuant to s 151Z of the Workers Compensation Act 1987 (NSW). In addition, Coles sued Chandler in cross-claims filed in the actions brought by the Worker and Ready Workforce. The cross-claims against Chandler were based on a service agreement between Coles and Chandler. Coles contended that any liability it incurred to Mr Smith or Ready Workforce, including the irrecoverable costs it incurred in defending each action, was either the subject of a contractual indemnity, or else was recoverable as damages for a breach of a contract.

4. [215]

   Both actions were heard together, and a judge of the District Court (the primary judge) directed the entry of verdict and judgment for Coles in both actions. The primary judge found in favour of Coles on both cross-claims, but awarded nominal damages. Each of Coles, the Worker and Ready Workforce then appealed to this Court. The first question in the appeals is whether the injury suffered by the Worker was caused by the negligence of Coles.

5. [216]

   The Worker alleged that Coles was negligent in the following respects:

6. [217]

   Ready Workforce alleged that the Worker’s injuries occurred as a result of the negligence of Coles, which it particularised as follows:

7. [218]

   The Worker, in the course of his duties, was required to pick up a carton of bottled water from a pallet, where the carton was the last one on the pallet. His intention was to load the carton onto his pallet jack. The carton was in the back corner of the pallet. It was not possible to get access to the carton from the sides or the rear of the pallet.

8. [219]

   The pallet consisted of boards of wood nailed together with slats that run horizontally parallel to the line of the aisle. The Worker said that he could have walked into the area where the pallet and the single carton were stored. He said that he had to stand on the pallet, putting one foot on the pallet, in order to pick up the carton. The Worker observed that the pallet was broken. He said that, because the pallet was broken, he was unable to stand on it with two feet because “the board was indented in, broken inwards”. He said that he could not have walked onto the pallet without ducking his head because the shelving was just about his head height, indicating that, when standing on the pallet, the shelving above was at the height of his chin.

9. [220]

   The Worker said that, when he reached the pallet containing the carton he could readily see the broken pallet. With one foot on the ground and one foot on the pallet, the Worker leant over to pick up the carton. He lifted the carton slightly off the ground and then felt a jarring in his back. He then placed the carton back down. He said that he ultimately got the carton off the pallet after resting for about 10 minutes and placed it on his pallet jack. He continued to work the rest of his shift on that day although he felt discomfort in his lower back.

10. [221]

    The Worker was asked whether he could have got closer to the load and said that he could not. He said that if he was not able to get as close to the load as he possibly could the option was not to pick it up. He said that the option was not really there to pick not it up and that it was “not advised to not pick it”. He said that, if he had indulged in what he described as a “short chase”, it was more likely that he would have been redirected to go and pick the carton up anyway.

11. [222]

    In cross-examination, the Worker accepted that he was familiar with the directions in Coles’ manual handling manual. He agreed that the manual directed workers to use the correct handling technique when working with equipment and that he was able to choose which technique was appropriate for the goods that he was lifting. He also accepted that there were always supervisors wandering around if he needed assistance. The Worker agreed in cross-examination that his actions on the day in question were depicted in a prohibited action in the manual.

12. [223]

    The Worker accepted that the direction that he had to lift safely required him to get as close as possible to the load before he handled it and he knew from his instructions that if he was not close to the object he was lifting it was unsafe. He agreed that one of the options if he could not get close to the load to lift it was to leave it and do a short chase if he could not get close to the carton. He agreed that one of the things he was trained in was that he should always bend his knees not his back, brace his abdominal muscles and place his feet apart for good balance, which was something he adhered to all the time. He knew that in order to keep himself free from injury he needed to follow those directions. However, he agreed on the occasion of the accident he did not adhere to those requirements.

13. [224]

    I have had the advantage of reading in draft form the proposed reasons of Leeming JA for dismissing the appeals by the Worker and Ready Workforce. I agree with his Honour’s conclusions and orders for the reasons proposed. I also agree with Leeming JA, for the reasons proposed by him, that the third appeal, by Coles, should also be dismissed with costs.

14. [225]

    ADAMSON J: On 10 May 2014 Matthew Smith injured his back lifting a box of water which weighed 16.4kgs at a depot at Smeaton Grange operated by Coles Supermarkets Australia Pty Ltd (Coles). At the time, he was employed by Ready Workforce (A Division of Chandler Macleod) Pty Ltd (Ready). Ready, which was associated with Chandler Macleod Group Limited (Chandler) was a labour hire company. Chandler and Coles had an agreement whereby labour would be provided to Coles.

15. [226]

    Mr Smith was paid workers compensation arising from the injury. Ready commenced proceedings in the District Court against Coles pursuant to s 151Z(2) of the Workers Compensation Act 1987 (NSW) for recovery of workers compensation payments made to Mr Smith (the Ready claim), which totalled $100,649.98 at the time of trial. Subsequently, Mr Smith also commenced proceedings in the District Court, claiming damages against Coles for negligence. Mr Smith’s claim and the Ready claim were heard together with Coles’ cross-claim against Chandler seeking indemnity and damages under the labour-hire agreement for the claims made against it by Mr Smith and Ready.

16. [227]

    The matter was heard by Gibb DCJ over 4 days on 1, 2, 10 and 11 July 2019 following which her Honour reserved her decision. In a judgment published on 28 August 2019, her Honour ordered judgment for Coles on Mr Smith’s and Ready’s claims and made costs orders accordingly. Her Honour also purported to order a “verdict” in favour of Coles in each of these proceedings. Only a jury can return a verdict. Judges cannot. The distinction is maintained in both civil and criminal cases: see, for example, s 133 of the Criminal Procedure Act 1986 (NSW), which, notwithstanding its somewhat misleading heading (Verdict of single judge) provides that a finding of a judge in a judge alone trial has the same effect (but is, implicitly, not the same) as a verdict of a jury. Further, while a judge can “direct” a jury to return a verdict of acquittal, a judge cannot order, or return, one. The use of the expression “verdict” in connection with common law personal injury cases is an anachronism left over from the days when such cases were commonly heard by a judge (as the tribunal of law) and jury (as the tribunal of fact), rather than, as presently, by judge alone (who is the tribunal of law and fact).

17. [228]

    Her Honour ordered judgment on the cross-claim in favour of Coles in the sum of $100. By agreement between Coles and Chandler, consent orders were made on 27 September 2019 which included an order that each party to the cross-claim bore its own costs.

18. [229]

    Each party to the proceedings in the Court below, apart from Chandler, has filed a notice of appeal against the orders for judgment. It is convenient to address Mr Smith’s and Ready’s appeals together. As Coles’ appeal in respect of the cross-claim against Chandler raises separate issues, it will be addressed last.

The appeals by Ready and Mr Smith

1. [230]

   The evidence established the following. The depot operated by Coles at Smeaton Grange was very large. Grocery merchandise was delivered to, and distributed from, the depot in order to fulfil orders. Merchandise was “picked” from pallets which were located on the floor of the warehouse and packed before being sent out of the depot. There were several shelves higher than the ground floor on which merchandise was stored before it was required to be moved to the ground floor to be available to pickers. The shelves above the pick bays were fixed at a particular height. Those working at the Coles depot included Coles employees as well as those who were employed by labour-hire companies such as Ready, who had been sent to the depot to work under Coles’ direction. Ready also had representatives at the Coles depot.

2. [231]

   Mr Smith worked as a casual “picker/packer” which required him to drive a forklift, which took two pallets, around the warehouse, collecting grocery items from locations in the warehouse to fulfil orders which had been allocated to him. His instructions were given to him by a headset. His productivity was measured and, if he exceeded a specified rate, would give rise to a bonus. Failure to achieve the specified rate had the potential to jeopardise his prospects of continued employment. His evidence as to the speed of work included the following:

3. [232]

   Mr Smith had been working at the depot for over three years before the accident occurred. He had been instructed in the job during an induction period before he commenced work and was required to undertake an annual review of his training which took no longer than 15 minutes. Supervisors were also present in the depot to supervise the work done there, including by picker/packers.

4. [233]

   On the morning of 10 May 2014 he commenced work at the depot at 5am. After he had been working for about three hours, during which he had lifted between 200 and 300 boxes, he went to pick up a box of water which was located on the back of a pallet in a pick bay.

5. [234]

   In that particular pick bay, the height of the first shelf was 199cms above the ground. The height of the pallet on which the items were sitting was 15cms. Mr Smith’s work boots added 4cms to his height of 182cms, which meant that he could not stand upright on the pallet (his effective elevation above the ground being 201cms). The effect of the height of the first shelf was that Mr Smith could not lift items which were not located at the front of the pallet using the preferred squat lift which he had been trained to use and which he understood to be the safest way of lifting.

6. [235]

   There was no access from either side of the pallet or from the back. The sole access was from the front. There was a broken slat on the pallet between the front edge of the pallet and the location of the box. Because of the location of the broken slat, Mr Smith was not able to get his foot as close to the box as he had been trained to do when lifting a heavy object. When Mr Smith leant over to pick up the box, his front foot was on the pallet and the other was on the floor of the warehouse. The broken slat was between his front foot and the box. Mr Smith estimated that the box was between 2ft and 90cms away from his front foot. As soon as Mr Smith tried to lift the box, he felt a jarring in his back.

7. [236]

   Mr Smith accepted that when he had lifted the box, he had not done as he was trained to do and explained that the reason for this was that he could not get close enough to the box because of the broken slat.

8. [237]

   Mr Smith accepted that his training had been reviewed annually since he commenced working at the depot. He also accepted that he had been reviewed on 4 December 2013 (being the most recent review prior to the accident) and had initialled the document entitled “Yearly review record” to indicate that he had been trained and reviewed on that date, including on the topics of “LOG026 Manual Handling 1st and 2nd Level Order Picks” and “LOG027 Manual Handling”. Mr Smith accepted in cross-examination that since he started working at the depot he had complied with the manual handling techniques in accordance with his training.

9. [238]

   Mr Parker SC, who appeared for Coles at first instance and on appeal, cross-examined Mr Smith by reference to the following extract from the Coles manual entitled “Coles Logistic Safe Work Practice”. He asked several questions by reference to the extract from LOG026 relating to first level picking (which was said to apply from April 2010 and therefore covered the period of Mr Smith’s work at the depot) as follows:

10. [239]

    Mr Parker put the first three items on this list to the plaintiff in cross-examination. When he came to the fourth item, pick sticks, the following exchange ensued:

11. [240]

    This was the first mention of pick sticks in the oral evidence as no evidence in chief had been led about them. Mr Parker did not challenge the plaintiff’s evidence that there were no pick sticks at the depot when he was working there.

12. [241]

    Mr Smith was also cross-examined by Mr Parker to the effect that he could have left the box on the pallet if he was unable to lift it in accordance with the training he had received from Coles. The relevant part of his cross-examination is as follows:

13. [242]

    Ready and Mr Smith relied on the expert report of Mr Dubos, who was not required for cross-examination. Mr Dubos had inspected the depot on 15 December 2017 for the purposes of preparing his report. During his inspection he had seen pick sticks which were generally available and in use in the depot.

14. [243]

    Mr Dubos opined that the risk of back injury posed to workers when lifting items from a pallet could be mitigated in the following three ways:

    1. (1)

       the use of pick sticks which would enable workers to pull items to the front of the pallet;

    2. (2)

       increasing the height of the first shelf so that workers could stand upright on the pallet in their work boots and use a squat lift to lift items, including those located at the rear of the pallet; and

    3. (3)

       the pallets themselves could be turned so that the items to the rear of the pallet would, after its rotation, be accessible at the front of the pallet.

15. [244]

    Of present relevance, Mr Dubos said in his report:

16. [245]

    Mr Dubos said in his report that, on his inspection on 15 December 2017:

17. [246]

    He also confirmed in his report:

18. [247]

    He also said, on the topic of pick sticks:

19. [248]

    Mr Dubos included a photograph of a pick stick in his report together with the following description:

20. [249]

    Coles called evidence from Peter Tryhuba, who worked at the depot at the relevant time. He gave evidence about the processes at the depot and the dimensions of pick bays and racks but was not asked and did not give evidence about pick sticks. He accepted that broken pallets created a danger in that they tended to compromise a worker’s access to items on the pallets, which, as a consequence, posed a risk of injury to workers who are required to lift such items.

21. [250]

    Coles also called evidence from Mr Palmer, who was a trainer at the depot. Mr Palmer gave evidence that he instructed the trainees as to how to lift safely and told them not to worry about the pick rate or the potential of a bonus and that it was more important to lift the items safely than to do it in a rush. He said he would tell the trainees:

22. [251]

    Mr Palmer did not say that there were pick sticks at the Coles depot when Mr Smith was working there. Indeed, he was not asked about pick sticks at all.

23. [252]

    Coles relied on the expert report of Dr Fairfax, who was not required for cross-examination. Dr Fairfax opined that Coles’ training was sufficient to instruct its workers in safe techniques of lifting and that, had Mr Smith lifted the box as he had been trained to do, he would not have been injured. Dr Fairfax’s opinion was that:

24. [253]

    She responded to Mr Dubos’ opinion about pick sticks as follows:

25. [254]

    A fair reading of the extract from Dr Fairfax’s report is that a pick stick would have provided a solution to the problem and avoided the risk to which Mr Smith was exposed on 10 May 2014 when he was faced with the task of picking up the box of water which was located on the other side of a broken slat.

26. [255]

    As set out above, it was plain from the expert reports of Mr Dubos and Dr Fairfax that both experts had assumed (incorrectly) from the fact that pick sticks were available at the depot when Mr Dubos inspected it on 15 December 2017 that pick sticks had been available at the depot when Mr Smith was working there. It was common ground between the experts that the risk of injury posed by attempting to lift a heavy object by reaching forward because of difficulties of access could have been avoided by the use of a pick stick.

27. [256]

    In substance, Mr Smith’s case at trial was that the duties owed to him by Coles were analogous to those owed by an employer to an employee. He alleged that his injury was caused by Coles’ negligence in failing to provide a safe system of work.

28. [257]

    In support of their cases at trial, Ready and Mr Smith relied on the principle from the well-known passage in Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 (Czatyrko) at [12] as follows:

29. [258]

    The cases put by Ready and Mr Smith at trial were that the combination of the height of the shelf above the picking bay, the broken slat in the pallet and the location of the box at the back of the pallet from which the only access was from the front, was such as to create an unnecessary risk of injury. They argued that Coles was obliged to take reasonable care to avoid the risk by devising a method of operation for the lifting of items from pallets which eliminated the risk that poor access to an item would affect the capacity of a worker such as Mr Smith to pick it up using safe techniques.

30. [259]

    Ready and Mr Smith put at trial that Coles could have obviated the risk which ensued when Mr Smith lifted the box by providing pick sticks to workers to assist them to move boxes and other items from the back of the pallet to the front of the pallet. They submitted that such an aid was a reasonable precaution in circumstances which included that the height of the rack above the pallet did not permit all workers to stand upright and broken slats were commonplace. Other precautions were also put but need not be considered for present purposes.

31. [260]

    Coles’ case at trial was that it had discharged its duty of care by training its workers, including Mr Smith, in safe methods of lifting, that the cause of Mr Smith’s injuries was that he had lifted the box in an improper and unsafe manner and that he had not been sufficiently close to the box when he attempted to lift it. Coles submitted that if the box was positioned in a location where Mr Smith could not lift it in accordance with one of the approved methods which he had been instructed to undertake, he should simply have left the box on the pallet. Coles submitted, on this basis, that Mr Smith was the cause of his own injuries and that he had no entitlement to damages against Coles and that Ready had no entitlement to indemnity under s 151Z(1)(d) of the Workers Compensation Act.

32. [261]

    At trial, Mr Parker submitted that Mr Smith could not raise the non-provision of pick sticks because it had not been pleaded. In response, Mr Catsanos SC, who appeared for Ready at trial and on appeal, submitted that it was covered by the pleading in that it fell within the allegation that Coles had failed to provide a safe system of work. Mr Catsanos also said that Coles had raised the issue of pick sticks in its manual and Mr Parker had cross-examined about it. Both experts had given opinions about the difference pick sticks would have made. In these circumstances, he submitted that the plaintiff was entitled to rely on the non-provision of pick sticks as part of his case.

33. [262]

    The primary judge accepted that the duties owed by Coles to Mr Smith to provide a safe system of work were similar to those owed by an employer and accepted that the statements of principle in Czatyrko applied to the present case. Her Honour said, of the risk which Coles had a duty to eliminate or minimise:

34. [263]

    The primary judge engaged in a calculation whereby her Honour purported to work out how far Mr Smith reached before picking up the carton. This calculation is the subject of ground 11 of Mr Smith’s notice of appeal. Her Honour said when describing her own reckonings:

35. [264]

    The primary judge, after quoting from the evidence, said further:

36. [265]

    The primary judge accepted Coles’ case that Mr Smith was the author of his own loss. Her Honour accepted Dr Fairfax’s evidence set out above and said:

37. [266]

    The primary judge found that Coles’ training system was adequate to discharge its duty of care to Mr Smith.

38. [267]

    The primary judge found that the height of the rack above the pick bay was irrelevant because Mr Smith could have approached the box with bent knees (a proposition which derived no support from either expert). Her Honour said:

39. [268]

    Her Honour did not decide that Mr Smith was not entitled to rely on the case based on the non-provision of pick sticks. However, the primary judge considered the provision of pick sticks to be irrelevant because they were not, in fact, provided and also because she considered that the real cause of the injury was Mr Smith’s bad lifting technique.

40. [269]

    The primary judge found that what Mr Palmer had told his trainees about not worrying about the pick rate reflected Coles’ general approach to productivity amongst workers working at the depot. She said, by reference to Mr Palmer’s evidence:

41. [270]

    The primary judge assessed the damages to which Mr Smith would have been entitled had Coles been found liable at $414,909. She found that Ready was 50% liable for the damages and said that she would have reduced Mr Smith’s damages against Coles accordingly had Coles been liable. There is no challenge to these findings.

42. [271]

    Both Ready and Mr Smith have raised a large number of grounds of appeal, which can be divided into two categories: first, those which challenge findings of fact and application of legal principles to findings; and, second, those which raised matters of procedural fairness. The grounds in the second category include Mr Smith’s ground 11 which is:

43. [272]

    Ready’s ground 14, which also falls into the second category, is as follows:

44. [273]

    In the usual course, this Court would address grounds alleging a denial of procedural fairness first and, if any such ground is made out, would order a new trial. When such an order is made, it is generally inappropriate for this Court otherwise to consider the judgment under appeal since there would be, on that scenario, a new trial. However, in the present case, Mr Catsanos and Mr Cranitch SC, who appeared with Mr Wathukarage and Dr Blount for Mr Smith, contended that, if this Court was otherwise minded to allow the appeal on liability, they did not press their application for a new trial on the grounds of procedural fairness.

45. [274]

    In these circumstances, I propose to turn to the first category of grounds: those which allege that the primary judge failed to address the case that was put by Mr Smith and Ready or which challenge the factual findings of the primary judge and her application of legal principle. These grounds comprise all 15 grounds, apart from ground 14, in Ready’s notice of appeal, and grounds 1-6, 8-10 and 12-14 in Mr Smith’s notice of appeal.

46. [275]

    At the hearing of the appeals, none of the parties sought to address the grounds individually. Each counsel made global submissions which paid no particular attention to the grounds as formulated. This approach was understandable given the matters at issue in the proceedings and on appeal. At the conclusion of the hearing, Leeming JA, the presiding judge, asked the parties whether it was necessary for this Court to address each and every ground or whether the parties were content for the Court to address the matters of substance, in accordance with the way the parties had conducted the hearing of the appeal. The parties confirmed that this approach was both acceptable and appropriate.

47. [276]

    Ready and Mr Smith accepted that her Honour had correctly recited the applicable legal principle from Czatyrko. However, they contended that the primary judge had failed to deal with the cases they had put. They contended that it was common ground that Mr Smith had attempted to lift the box in a way which was at odds with his training and that it was dangerous in itself but submitted that the primary judge had failed to address their cases that it was the difficulties in access which created the very risk which ensued. In other words, they alleged that the primary judge failed to deal with why Mr Smith had lifted the box incorrectly.

48. [277]

    I accept this submission. The primary judge appeared to consider, erroneously, that Coles was absolved from liability because Mr Smith had lifted the box in a way which exposed him to risk of injury because he reached for it when he lifted it, rather than having it close to his feet at the time he began to lift it. As Czatyrko makes clear, the relevant inquiry is whether, to borrow its language, Coles, taking into account the possibility of thoughtlessness, inadvertence, or carelessness on the part of a worker such as Mr Smith, had devised a method of operation for performing the task of lifting items from a pallet which would avoid the risk that the worker would lift in a sub-optimal way by reason of the difficulties posed in gaining access to a box at the rear of a pallet in which one of the slats was damaged. The primary judge failed to undertake this inquiry. Once her Honour had determined that the cause of the injury was the poor lifting technique, she decided that Coles was not liable. Thus, her Honour failed to carry out the task of determining the issues between the parties or addressing the case that had been put by Ready and Mr Smith.

49. [278]

    I am persuaded that this error permeated the whole of her Honour’s judgment and the reasons for her decision that Coles was not liable in negligence to Mr Smith or liable under s 151Z(2) to Ready.

50. [279]

    Error having been established, it falls to this Court to exercise the powers conferred on it by s 75A of the Supreme Court Act 1970 (NSW) to determine whether Coles is liable to Mr Smith and Ready.

51. [280]

    Mr Parker argued on appeal that it was not open to this Court to allow the appeal on the basis of Mr Smith’s case on pick sticks because no such case had been pleaded; and that as Mr Smith had not given evidence that he would have used a pick stick had one been provided to him, Mr Smith had not established causation and therefore his and Ready’s claims had to fail in any event.

52. [281]

    It is necessary to deal with the pleading point at the outset. Ready alleged that Mr Smith’s injuries “occurred as a result of the negligence of the defendant”. The following particulars of negligence are relevant and, in my view, are sufficient to comprehend Ready’s case that the failure to provide pick sticks materially caused the accident:

53. [282]

    Mr Smith also alleged that his injuries, loss and damage were caused by Coles’ negligence. The relevant particulars to his case on the failure to provide pick sticks included the following:

54. [283]

    None of these particulars is inconsistent with, or sufficient to exclude, the case based on the absence of pick sticks. In R v Associated Northern Collieries (1910) 11 CLR 738 at 740-741; [1910] HCA 61 Isaacs J said:

55. [284]

    The issue of pick sticks was dealt with by both experts (albeit on the incorrect assumption that they were available for Mr Smith’s use at the depot) and raised by Mr Parker with Mr Smith in cross-examination. It was not outside the pleadings. Nor did the primary judge consider it to be outside the pleadings, although her Honour erroneously considered it to be an irrelevant matter.

56. [285]

    The conclusion that the case that Coles was negligent because it failed to provide pick sticks, the use of which would have avoided the accident, was open on the pleadings is consistent with the principles outlined and applied by the High Court in Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70. In that case, Dare, a jockey, sued Pulham, the driver of a motor vehicle for damages in negligence. In the particulars, Dare alleged that, but for the accident, he would have been able to earn “at least $200.00 net per week”. It was held that it was open to the jury to accept the evidence that Dare would have earned more than $200 net per week in the future and to find, as the jury did, that damages ought be awarded in an amount which was explicable on the basis of a future loss of $300 per week. The High Court overturned the decision of the Full Court of the Supreme Court of Victoria, which had allowed Pulham’s appeal on damages, and reinstated the jury’s verdict. The High Court (Murphy, Wilson, Brennan, Deane and Dawson JJ) said at 666:

57. [286]

    The issue in the present case was liability and not damages and Dare v Pulham proceeded at first instance as trial by jury. Despite these differences, the same principles apply. It is significant that, as in Dare v Pulham, there could be no suggestion Coles was taken by surprise in any relevant sense. The only matter of surprise to Coles (or at least its legal representatives) was that there were no pick sticks at the depot when Mr Smith worked there. This emerged in the cross-examination of Mr Smith as referred to above.

58. [287]

    Mr Smith’s case that, had Coles provided pick sticks, the accident could have been avoided, was not excluded by the pleadings or particulars and, indeed, fell within them although it was not articulated expressly in them. It is of utmost significance that Coles chose to defend the claim on the basis (as set out in Dr Fairfax’s report) that, had a pick stick been used by Mr Smith to move the box of water, the accident would have been avoided. Thus, to borrow the words of the High Court in the passage extracted above, Coles was bound by the course which it took at trial and was obliged to accept the effect of the evidence, in the tender of which it not only acquiesced, but for which it was responsible. Thus, the use of pick sticks as a method for moving the box of water was plainly within the ambit of the case, not only in the way it had been pleaded but also by reason of the way in which the parties conducted the trial. The question of the effect of the evidence is addressed below in the context of the consideration of whether Coles was negligent in failing to provide pick sticks.

59. [288]

    The Civil Liability Act 2002 (NSW) applies. The relevant risk of harm was the risk of workers suffering a back injury from lifting an article incorrectly because of difficulties with access. The risk was plainly foreseeable (s 5B(1)(a)) and was in fact foreseen, as was evident from the Coles manual and the training of workers which it undertook. The risk was not insignificant and indeed was a substantial one (s 5B(1)(b)). The risk was exacerbated by the known occurrence of broken slats and the circumstance that some workers, including Mr Smith, could not stand upright on the pallet to do a squat lift because the rack above the lowest level was only 199cms from the ground. Because the pallet was 15cms high and the work boots added about 4cms to a worker’s height, a proportion of the workers at the depot would fall into this category. I infer that a reasonable person in the position of Coles would have been obliged to take reasonable precautions against such risk of harm.

60. [289]

    In determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the matters listed in s 5B(2) of the Civil Liability Act. I am satisfied that it was probable that, if precautions were not taken, workers at the depot would suffer injury if difficulties in access to items which had to be lifted were not ameliorated (s 5B(2)(a)). I am also satisfied that such injury was likely to be serious (s 5B(2)(b)). I infer that the burden of taking precautions to avoid the risk of harm (s 5B(2)(c)) was not particularly great as the Coles manual mandated the use of pick sticks by workers whenever “overreaching for stock” would otherwise be required to retrieve an item from a pallet. Further, Mr Dubos’ evidence established that pick sticks were available and in use when he visited the depot in 2017. The social utility of the activity (s 5B(2)(d) of the Civil Liability Act) is not a limiting factor in the present case as the activity was part of a commercial operation conducted by Coles for a profit.

61. [290]

    It is not necessary to address each of the measures which Ready and Mr Smith contended would have avoided the risk since it was common ground that the provision of pick sticks would have done so. The Coles manual (as the case was conducted, see further below) provided for the use of pick sticks in the very circumstances which confronted Mr Smith before he performed the dangerous lift. Accordingly, I infer that the provision of pick sticks was a reasonable precaution that ought to have been taken by Coles as part of the duty which it owed to those persons whose labour had been provided for work on the site. As referred to above, this inference is fortified by the circumstance that there were pick sticks available when Mr Dubos visited the site in December 2017, which also shows that it was reasonable for them to have been provided earlier, when Mr Smith was working at the depot.

62. [291]

    The uncontroverted expert evidence of both Mr Dubos and Dr Fairfax was that, had Coles provided workers in the position of Mr Smith with pick sticks and had Mr Smith used the pick stick when confronted with the present situation, the risk of his injuring himself as a result of performing an awkward lift over a broken slat to gain access to a box at the rear of a wooden pallet would have been avoided.

63. [292]

    I have had the benefit of reading the reasons of Leeming JA in draft and note that his Honour has come to a conclusion which is at odds with the opinions expressed by the experts as to the utility and suitability of a pick stick in the present case. I respectfully disagree with the approach taken by Leeming JA since I consider that it is inconsistent with the way the case was conducted at first instance by Coles, which can be taken to have affected the forensic decisions taken by trial counsel for Mr Smith and Ready.

64. [293]

    The starting point is that a party is bound by the conduct of its counsel. Many of the seminal statements to this effect are to be found in criminal appeals. However, they also apply to civil litigation: Saffron v Societe Miniere Cafrika (1958) 100 CLR 231 at 240 (Dixon CJ, McTiernan and Menzies JJ); [1958] HCA 50. Gleeson CJ said in R v Birks (1990) 19 NSWLR 677 at 683:

65. [294]

    The importance of this principle to the adversarial system and the “fairness of the process” was emphasised by Gleeson CJ in Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 at [9] as follows:

66. [295]

    When parties litigate their dispute, they are entitled to assume that it will be decided in accordance with rules and principles: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 (McHugh JA). The rules and principles include those which govern adversarial litigation.

67. [296]

    The relevant forensic decisions made by counsel at trial can be taken to have included the following: Coles’ decision to tender Dr Fairfax’s report to the effect that, had Mr Smith used a pick stick to move the box of water the accident would have been avoided; the decision by counsel for Mr Smith and Ready not to require Dr Fairfax for cross-examination; the decision by counsel for Mr Smith and Ready to rely on Dr Fairfax’s report in this respect in final submissions; and the decision of counsel for Coles to argue against liability, not on the basis that Dr Fairfax was wrong (which was relevant to breach of duty), but on the basis that it had not been proved that Mr Smith would have used a pick stick had it been provided (which was relevant to causation).

68. [297]

    The forensic setting in which the trial was conducted and the choices made by counsel are not matters to be swept aside on appeal. To the contrary, they provide the parameters within which this Court’s power under s 75A of the Supreme Court Act is to be exercised: see, for example, Fuller-Lyons v New South Wales [2015] HCA 31; (2015) 323 ALR 639. In Crampton v The Queen (2000) 206 CLR 161; [2000] HCA 60 at [16], Gleeson CJ, in the context of an appeal from a jury’s verdict, warned of the “tendency [on appeal] to look for a new approach to the case” which “carries with it the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges”. These comments equally apply to civil cases.

69. [298]

    Coles ran its case on the basis that the fourth entry in its manual under the heading “First Level Picking” applied to the present circumstance. This is evident from Mr Parker’s cross-examination of the plaintiff in the following exchange:

70. [299]

    The interpretation placed by Leeming JA on the extract from the manual is not only open as a matter of English, but also may be the better interpretation. However, the Coles manual is not a piece of legislation to be construed by judges. What is significant is that Coles, through its counsel, Mr Parker, did not conduct its case on the basis of that interpretation. Coles ran its case on the basis that the instruction at the fourth point of the manual under the heading First Level Picking applied to the circumstances of the present case, where Mr Smith was required to lift boxes of water from a pallet on the ground floor of the depot. The interpretation placed by Coles on its manual was common ground, as is evident from Mr Catsanos’ answer to the question asked by Emmett AJA set out in Leeming JA’s judgment. If the trial is not to be regarded as a “preliminary skirmish”, it is necessary for this Court to take account of forensic choices such as these.

71. [300]

    It is also of significance that both Mr Dubos and Dr Fairfax had inspected the depot and had been informed of Mr Smith’s version of events. No relevant objection was taken to Dr Fairfax’s evidence that a pick stick would have avoided the accident. No issue was raised at trial either by Mr Dubos, Dr Fairfax or the parties’ representatives about the coefficient of friction or whether the pick stick was a suitable implement in the particular circumstances of the case of a broken slat on a pallet and a box which weighed 16.4kg.

72. [301]

    There is a further reason for not coming to a different conclusion than the one to which the experts came. While a tribunal of fact, whether judge or jury, is not bound by expert evidence, agreement by experts about particular matters which fall within their expertise is not to be put aside without good reason: see, in the civil context, Coopers Payen Ltd v Southampton Container Terminal Ltd [2004] 1 Lloyd’s Rep 331; [2003] EWCA Civ 1223 at [43] (Clarke LJ, Lightman J and Schiemann LJ agreeing) and, in the criminal context, the authorities referred to in R v Klamo (2008) 18 VR 644; [2008] VSCA 75 at [44] and R v Hall (1988) 36 A Crim R 368 at 370.

73. [302]

    No assumption can be made as to what Mr Dubos’ or Dr Fairfax’s responses would have been had a new hypothesis about why a pick stick would not have been an appropriate implement in the present case been put to them. In these circumstances, it is not for this Court to gainsay the uncontroverted expert evidence given by experts whose expertise was accepted and who had signed the Expert Witness Code of Conduct.

74. [303]

    In these circumstances, I am satisfied that it was negligent of Coles not to provide pick sticks to those whose duties on the site included picking and packing from pick bays. Indeed I do not consider any other conclusion to be reasonably open on appeal, having regard to the way the trial was conducted.

75. [304]

    The burden of providing pick sticks to avoid the relevant risk of harm would not appear to increase any other risk of harm (unlike the postulated measure of “pallet-turning” which would substantially increase fork lift traffic in the depot). The uncontroverted evidence of the experts established that pick sticks constitute a relatively simple, effective way of avoiding the risk which would otherwise present itself to picker/packers at the depot engaging in picking tasks. Although the fact that Coles made pick sticks available to its workers at the depot at least from December 2017 does not of itself constitute an admission of liability in connection with this risk (s 5C(c) of the Civil Liability Act) it tends to prove that it is not particularly burdensome to provide such mechanical aids to workers engaged in such tasks. That the Coles manual advised workers such as Mr Smith from April 2010 (the date of the version annexed to Dr Fairfax’s report) is further evidence that it was an appropriate and available precaution of avoiding the risk of harm.

76. [305]

    As referred to above, Mr Parker submitted that this Court ought not infer that, had a pick stick been provided for the use of persons such as Mr Smith, he would have used it, there being no direct evidence to that effect. He submitted that the lack of such evidence was fatal to the appeals by Ready and Mr Smith. I disagree for the following reasons.

77. [306]

    The question whether Mr Smith would have used a pick stick had it been provided is a hypothetical one since the evidence established that it was not. The proof of causation in such a case requires the tribunal of fact to be satisfied that he would have used a pick stick to move the box closer to him before he engaged in lifting it. In Glass, McHugh and Douglas, The Liability of Employers in Damages for Personal Injury (2nd ed, 1979, Law Book Co.), the authors addressed this situation at 39 in the following terms:

78. [307]

    The common law principles have been amended by s 5D(3) of the Civil Liability Act, which applies to actions commenced on or after 6 December 2002, and which provides:

79. [308]

    The reason for the insertion of s 5D(3) into the Civil Liability Act appears from [7.40] of the Review of the Law of Negligence: Final Report (Commonwealth of Australia, August 2002) which said:

80. [309]

    Thus, had Mr Smith been asked whether, if Coles had provided pick sticks, he would have used one, an affirmative answer would have been inadmissible, which was presumably why neither Mr Flett (who appeared for Mr Smith at first instance) nor Mr Catsanos asked the question. Mr Parker did not put to him that he would not have used a pick stick if it had been available, presumably because there was no basis for such a suggestion. Coles is, accordingly, bound by the conduct of its case by counsel at first instance: see, in a criminal context, R v Birks at 684-685 (Gleeson CJ, McInerney J agreeing).

81. [310]

    It is important to note that s 5D(3) does not alter the onus of proof; it merely affects the admissibility of evidence which, prior to its enactment, could be used to discharge it. The onus was described in the following passage from Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 417 (Mason J), on which Mr Parker relied:

82. [311]

    The evidence showed that Mr Smith had been working at the depot without incident for a number of years before the accident the subject of the proceedings and that he was plainly aware of the correct lifting technique and that he had been unable to comply with the technique he had been instructed to use by reason of the difficulties with access. There was no challenge to Mr Smith’s credibility before the primary judge and no basis for contending that this Court is not in a position to conclude, in the absence of any suggestion to the contrary, and in light of the evidence of Mr Smith’s work history at the Coles depot, that he would have used a pick stick, had it been provided to him.

83. [312]

    In these circumstances, I am persuaded that the appeals by Ready and Mr Smith ought be allowed on the grounds which relate to the challenges to the primary facts. For the reasons given above, it is not necessary to address the procedural fairness grounds (grounds 6, 7 and 11 in Mr Smith’s notice of appeal and ground 14 of Ready’s notice of appeal) as it was common ground that there would be no utility in ordering a retrial.

84. [313]

    The remaining issue on the appeals by Ready and Mr Smith is the question of contributory negligence. As Coles is at fault, I do not consider that s 5S of the Civil Liability Act applies. Coles bears the onus of proving contributory negligence: Anderson v Eric Radio & TV Pty Ltd (1965) 114 CLR 20 at 43 (Windeyer J); [1965] HCA 61 and Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 at [18] (McHugh J). By reason of s 5R of the Civil Liability Act, the same principles apply in determining whether a person has been negligent as they do when determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. The standard of care, for this purpose, is objective and to be determined on the basis of what the person knew or ought to have known at the time.

85. [314]

    The context of the work being performed by Mr Smith is highly relevant. In Commissioner of Railways v Ruprecht (1979) 142 CLR 563; [1979] HCA 37, it was held that, in considering contributory negligence, it was necessary to have regard to the nature of the work which was being performed in order to assess the significance of the employee’s conduct. Gibbs J (Stephen J agreeing) said at 568:

86. [315]

    Mason J said at 572 that “... the existence of an unsafe system of work increases the risk of injury to an employee through his inadvertence.” Statements to similar effect were made in McLean v Tedman (1984) 155 CLR 306 at 315-316; [1984] HCA 60 (Mason, Wilson, Brennan and Dawson JJ).

87. [316]

    The question is whether Mr Smith’s conduct showed an unreasonable lack of care for his own safety. The answer to this question depends in part on the practical alternatives open to him. His evidence extracted above, which I accept, was that it was not reasonably open to him to simply leave the item on the pallet and leave the order unfulfilled since this would affect Coles’ assessment of his work performance, make it less likely that he would obtain a bonus for his pick rate and potentially subject him to a reprimand. There was substantial pressure on him to fulfil the orders which had been allocated to him. Although Mr Smith appreciated that he was not lifting the box in accordance with the way that he had been taught, he did not discern that there was any alternative to what he in fact did, which was to reach across the broken slat and lift the box. I do not consider that he was inadvertent or that he was not paying attention. However, I consider that he was so focussed on the task in hand and the pressure on him as a picker/packer to fulfil his orders for the day, that it was reasonable for him to consider that he had no practical choice but to pick up the box in whatever way he could manage to lift it. The insufficient height of the rack above, the broken slat and the absence of an aid such as a pick stick were each matters for which Coles was responsible and which impeded the safe performance of his work. Mr Smith had been well-trained and can be taken to have been diligent and hard-working. His injury was caused by matters outside his control.

88. [317]

    In these circumstances, Coles has not established that there ought be any deduction for contributory negligence. It follows that the plaintiff is entitled to judgment in the sum assessed by the primary judge, less amounts to be deducted for his workers compensation payments. As there is no challenge to the primary judge’s apportionment of 50%/50% between Coles and Ready, this apportionment is to be reflected in the judgment sums.

The appeal by Coles against the judgment on its cross-claim against Chandler

1. [318]

   Mr Cheshire SC, who appeared on behalf of Chandler, did not challenge her Honour’s judgment on the cross-claim or the assessment of nominal damages of $100. Mr Parker, however, challenged the assessment of damages and contended that her Honour ought to have assessed Coles’ damages by reference to the amount of costs which Coles had expended in the proceedings. Before turning to the grounds of the appeal, I propose to address the terms of the agreement between Coles and Chandler.

2. [319]

   The agreement, which is entitled “Services Agreement” has two parties: Coles and Chandler. The latter is defined as “Service Provider”. The commercial purpose of the agreement is to govern the provision by Chandler of labour to Coles. Of present relevance, cl 1.1 of the agreement contains the following defined terms:

3. [320]

   It was common ground that the definition of “Sites” included the Smeaton Grange depot.

4. [321]

   Clause 3, entitled “Services”, relevantly provides:

5. [322]

   Clause 13, entitled “Indemnities”, relevantly provided:

6. [323]

   Clause 16(g) relevantly provides that the “Service Provider will be liable for Services or other obligations under this agreement that are performed or discharged by its subcontractors or agents.” It was common ground that Chandler would be liable for any relevant breach by Ready.

7. [324]

   Mr Parker relied on the following factual findings made by the primary judge in support of his appeal against Chandler:

8. [325]

   Mr Parker also relied on the finding of “legal breach” as follows:

9. [326]

   As her Honour did not find that the indemnities in the agreement applied, it is not necessary to consider them further.

10. [327]

    Mr Cheshire submitted that it was plain from the definition of “Services” in cl 1.1 that the intention of the parties was that Chandler, as Service Provider, would not be liable for the work done by the temporary labour supplied by it, or the end-products of that work. He also submitted that it was plain from the terms of the agreement that it was Coles and not the Service Provider who had the right to direct persons such as Mr Smith how to do their work.

11. [328]

    The different possibilities which could arise if a worker falling within the definition of Agency Personnel under the agreement sued Coles are as follows:

    1. (1)

       Coles is 100% responsible for the accident;

    2. (2)

       Coles is x% responsible for the accident and Ready is (100-x)% responsible;

    3. (3)

       Coles is x% responsible and Mr Smith is (100-x)% responsible.

12. [329]

    Other combinations are possible to take account of all of the parties being responsible. However, consideration of the three scenarios postulated above is sufficient for present purposes.

13. [330]

    In scenario (1), Chandler would not be liable because there would have been no breach by either Ready or Mr Smith.

14. [331]

    In order to address scenarios (2) and (3), it is necessary to have regard to s 151Z of the Workers Compensation Act which relevantly provides:

15. [332]

    In scenario (2), Ready would have been found to have breached its obligation to Mr Smith. However, even on the assumption that this breach constitutes a breach of cll 3.1 or 3.2 of the agreement (which I regard as highly questionable), s 151Z(2)(c) would operate to reduce the judgment entered against Coles to accord with the amount of Coles’ responsibility. Therefore, there would be nothing for Coles to pass on and no damages from any alleged breach by Ready (for which Chandler would, on that assumption, be liable as Ready was accepted to be a sub-contractor of Chandler).

16. [333]

    In scenario (3), Mr Smith’s damages would be reduced to reflect his responsibility for the accident by way of a deduction for contributory negligence. Therefore, as with scenario (2), the judgment against Coles would accord with the proportion which Coles’ liability bore to the total responsibility for the accident. In neither (2) nor (3) would Coles suffer any loss as a consequence of any breach by Ready or Mr Smith.

17. [334]

    The analysis set out above deals with the question of any substantive damages awarded against Coles, which does not arise because of the effect of s 151Z(2) and the principles of contributory negligence. But what of the cost incurred by Coles in defending the proceedings in the three scenarios? The question arises whether it can be said that Coles was required to spend money on costs because of a breach by Chandler (or Ready) of its obligations under cll 3.1 or 3.2. This point was addressed by this Court against Coles in Coles Supermarkets v Ready Workforce (A Division of Chandler Macleod) Pty Ltd [2018] NSWCA 140 (the 2018 decision) at [109] where White JA (Basten JA and Simpson AJA agreeing) said:

18. [335]

    The 2018 decision is to be distinguished from the present case since it was a claim under the indemnity in cl 13 of the agreement as opposed to the present appeal which turns on whether Coles is entitled to recover its costs on the basis that they constitute damages for breach of cl 3.2. Thus the requirement in cl 13 that the loss must be suffered or expenses incurred “directly in connection with” the matters listed in the subparagraphs to the clause does not arise on the appeal. However, in order to recover more than nominal damages for breach of contract, it was necessary for Coles to prove that its loss (in the form of costs) was suffered as a result of Ready’s breaches (for which Chandler was responsible).

19. [336]

    The measure of damages for breach of contract is that amount of money which will put the injured party in the same position as if the breach had not occurred: Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363, approved in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 (Amann). Whether or not Chandler (or Ready) was found to be in breach by the primary judge, the costs would still have been incurred since Mr Smith brought proceedings against Coles because he considered Coles was in breach. Therefore Coles was required to incur the costs of defending the proceedings, whether or not Chandler or Ready or Mr Smith was found to be in breach. Mr Smith’s conduct in bringing the proceedings against Coles was, thus, the substantial cause of Coles having to incur costs to defend itself. Although the question posed in the appeal is a slightly different one from the one which arose in the 2018 decision, the answer is the same: Coles cannot recover its costs against Chandler. This consequence is consistent with the term contained within the definition of “Services” in cl 1.1 of the agreement that Chandler, as the Service Provider is “not responsible for the work done by the temporary labour supplied by it”.

20. [337]

    There is a further reason why Coles’ appeal must fail. Coles failed to adduce any evidence to establish the amount of costs it had already incurred in the proceedings and would incur in defending the balance of the proceedings. While some latitude may be given by courts in the assessment of damages where the nature of the breach prevents precise evidence as to loss, Coles was still obliged to prove its loss “on the balance of probabilities and with as much precision as the subject matter reasonably permitted”: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768 at [37] (Hayne J), citing Amann, at 80, 83-84 (Mason CJ and Dawson J), 138 (Toohey J), 153 (Gaudron J) and 161 (McHugh J).

21. [338]

    In the present case, there could have been no particular mystery about such figures. Presumably, Coles’ legal representatives complied with their obligations as to costs agreements under the Legal Profession Act 2004 (NSW). The costs estimates and agreements could have been tendered, together with any invoices rendered to the date on which the evidence was adduced. In these circumstances, the primary judge was correct to find that Coles had failed to prove any loss. For these reasons, I consider that Coles’ appeal ought be dismissed.

Proposed orders

1. [339]

   For the reasons set out above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the judgment of Gibb DCJ ordered on 25 September 2019 and in lieu thereof, order judgment for the plaintiff.

   3. (3)

      Order the respondent to pay the appellant’s costs of the trial and of the appeal.

   4. (4)

      Allow the appeal.

   5. (5)

      Set aside the judgment of Gibb DCJ ordered on 25 September 2019 and in lieu thereof, order judgment for the plaintiff.

   6. (6)

      Order the respondent to pay the appellant’s costs of the trial and of the appeal.

   7. (7)

      Dismiss the appeal.

   8. (8)

      Order the appellant to pay the respondent’s costs of the appeal.

2. [340]

   I note that it was common ground that if Ready succeeded, the fact that it may have been a joint tortfeasor did not preclude or limit its entitlement to recovery, having regard to s 151Z(1) and (2) of the Workers Compensation Act. However, since the calculation of the monetary sums of the judgments is not obvious from the court books, I propose that the parties be directed to bring in short minutes which reflect the judgment sums which follow from these reasons.