Insurance

A precautionary tale – Bauer Media v Khedrlarian

22 November, 2020

Can a party be found to have breached a duty of care in the absence of evidence as to specific precautions which should have been taken to obviate or reduce the risk of injury? The Court of Appeal recently explored this issue in Bauer Media v Khedrlarian [2020] NSWCA 288.

Author: Candice Ingleton & Leighton Hawkes
Judgment date: 18 November 2020
Citation: Bauer Media v Khedrlarian [2020] NSWCA 288
Jurisdiction: New South Wales Court of Appeal

Principles

Section 5B of the Civil Liability Act 2002 (NSW) provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, the risk was not insignificant and, in the circumstances, a reasonable person in the person’s position would have taken those precautions. Such precautions need to be clearly identified by a plaintiff.
To establish breach, it is necessary to provide evidence as to specific precautions which should have been taken which would have obviated or reduced the risk of injury to an acceptable level, whilst considering the burden of taking those specific precautions.
Admissibility issues arise where an expert liability report fails to identify, with precision, the nature of the precautions which should have been taken, and with reference to how they may have been successfully implanted, particularly in a ‘system of work’ case.

Background

The plaintiff was employed by a labour hire company known as Demand Personnel Pty Ltd (Demand). Demand entered into a contract with Bauer Media Pty Ltd (Bauer), whereby Demand provided to Bauer the services of various of its employees. Bauer’s business involves the publishing, collating, packing and transporting of printed material, including magazines.

The plaintiff worked at Bauer’s premises filling orders for magazines to be dispatched to newsagents. Her role primarily involved selecting the number of magazine titles required for each order and placing them on a conveyor belt. She otherwise spent time on a manual bench lifting and moving piles of magazines to a stationary workbench from a nearby pallet.

It was alleged that during her employment with Demand, she developed a sudden onset of pain in her neck and right shoulder, and subsequent injury to both arms and wrists, from repetitively lifting bundles of magazines.

In 2016, the plaintiff commenced proceedings against Bauer and Demand (substituted by the Workers Compensation Nominal Insurer) in the NSW District Court. The question in the proceedings was whether Bauer, Demand, or both, breached the duty of care each owed to the plaintiff.

The earlier decisions

In 2017, an Acting Judge of the District Court (the First Judge) directed the entry of judgment in favour of the plaintiff against both Bauer and the Insurer, apportioning two thirds liability to Bauer and one third liability to Demand. In essence, the First Judge made findings as to the system of work implemented based on speculative evidence from an expert, who only interviewed the plaintiff and did not conduct any form of view of Bauer’s premises. Bauer appealed the orders made by the First Judge.

In 2018, the NSW Court of Appeal ordered that Bauer’s appeal be allowed and set aside the orders made by the First Judge. It held that the plaintiff failed to establish evidence of a breach of duty by Bauer based on its system of work, but did not consider it was in sufficient position to decide the matter. The proceedings were remitted back to the District Court for retrial.

In 2019, a different Acting Judge of the District Court (the Primary Judge) again directed the entry of judgment in favour of the plaintiff against both Bauer and the Insurer, apportioning 85% liability to Bauer and 15% liability to Demand. Once again, the decision was primarily based on the same expert opinion considered by the First Judge. Bauer again appealed the orders made by the Primary Judge.

The 2020 appeal

Bauer appealed primarily on the basis that the Primary Judge erred in concluding on the available evidence that there were breaches by Bauer of its duty of care owed to the plaintiff and that any injury suffered by the plaintiff was caused by any such breach.

Over the objection by Bauer, the Primary Judged admitted into evidence an expert liability report concerning the systems in place at Bauer’s premises and the proper safe work systems that should have been in place during the plaintiff’s employment.

The plaintiff sought to support the findings of the Primary Judge that the system of work created a risk because it permitted repetitive work by the plaintiff without implementing “job rotation”, which was one of the precautions recommended in the expert report.

Bauer submitted that it was necessary for the plaintiff to propound a particular regime of “job rotation” that, if followed, may have obviated or minimised the risk of injury and that that was necessary in order that the further question of causation might be addressed by medical evidence.

Although the Primary Judge was not persuaded by this argument, the Court of Appeal accepted that the expert report should have been rejected as it failed to identify with precision the nature of the precautions which should have been taken by Bauer.

The Court of Appeal also accepted that the Primary Judge failed to explain what was meant by “job rotation” when he found the absence of such “job rotation” rendered the system of work unsafe. Neither the expert report nor His Honour explored precisely what rotation was feasible, or whether the adoption of such “job rotation” would have prevented the plaintiff’s alleged injuries. Additionally, there was no examination of the question of the cost to either defendant of such “job rotation”.

In essence, the Court accepted Bauer’s contentions (made consistently since the hearing before the First Judge) that the expert had failed to consider all of the available evidence, including that from Bauer, and instead relied on assumptions obtained from interview with the plaintiff, which ultimately could not be substantiated. As such, his views were no more than mere speculation.

In the absence of evidence capable of supporting a finding that any reasonable precaution would have averted the risk of injury from repetitive work, the Court of Appeal held that the Primary Judge erred in concluding that there was a breach by either Bauer of any duty owed to the plaintiff, and further erred in concluding that there was a causal connection between any breach of duty and the injuries alleged to have been suffered by the plaintiff.

The Court of Appeal unanimously dismissed the plaintiff’s claim against Bauer (and also against Demand) and ordered the plaintiff to pay its costs of the entire proceedings.

Why this case is important

This case serves as a reminder that breach of a duty of care will not be established where the principles in section 5B of the Civil Liability Act 2002 (NSW) are not met. A defendant will not be found to have breached the duty it owed where a plaintiff is unable on the evidence to establish what precise ‘precautions’ it ought to have adopted.

It also highlights the importance of expert liability reports identifying, with precision, the nature of the precautions which should be taken to obviate or reduce the risk of injury to an acceptable level. Vague and unsupported theories as to what precautions may have alleviated a risk is not sufficient, the precautions need to be articulated with reference to how they may have been successfully implemented by a defendant, particularly as occurred here, in a system of work case.

The authors acted for Bauer in each of the proceedings, including the successful appeal.

published by

Leighton Hawkes

Principal

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