Introduction
There have been a number of recent appellate level decisions in personal injuries claims which have gone the way of the defendant. One of those decisions is that of the Queensland Court of Appeal in Manca v Teys Australian Beenleigh Pty Ltd.1
That case involved injuries suffered by the appellant, Mr Manca, as a result of slipping and falling down stairs at the respondent’s meatworks facility, where he worked. Mr Manca was unsuccessful at first instance, and on appeal.
While no new principles arise from this decision, it provides a timely reminder of a number of key principles that should be borne in mind when defending claims.
The System of Work
Mr Manca worked on the “kill floor” at Teys’ Beenleigh meatworks. Because of the amount of cattle involved and the process of killing cattle, there was a large amount of blood, which accumulated on the blooding floor.
Workers were supplied with a rubber apron and gumboots, which had deep-treaded soles. There were also two metal washdown cubicles that opened onto the blooding floor where the workers came to wash and resterilise their tools. The workers washed their tools and rinsed off their aprons and boots at the end of the shift.
Access to the blooding floor was via a set of stairs, which consisted of six concrete stairs (the stairs). Following the preliminary washdown, the workers had to walk back along the edge of the blooding floor, before entering a passage to the top of the stairs.
The washdown in the cubicle was only intended to be a preliminary washdown, and after they descend the stairs, the workers proceeded to another area with their tools, where there were full washing facilities.
The Incident
Mr Manca took the path outlined above on the day of the incident. He said he was carrying his knife pouch in one hand and his sharpening steels in the other hand. As a result, he was not able to hold onto the handrail as he descended the stairs. When he reached the second or third step, his right foot slipped, and he fell backwards.
Allegations
Counsel for Mr Manca argued Teys failed to take reasonable precautions for Mr Manca’s care, including failing to:
- Repair the damaged and worn edges of the steps;
- Provide a non-slip surface and metal edge strips to the steps;
- Ensure the steps were kept clean from blood;
- Conduct an adequate assessment of the risks posed to workers;
- Adequately respond to previous slips and/or falls by other staff members on the steps; or
- Warn the plaintiff that the steps were damaged, worn and slippery from the presence of blood.
Teys’ Response
Teys denied the surfaces and edges of the concrete steps were damaged and worn, or that they were covered in blood.
Teys also pleaded that it trained and instructed Mr Manca to use the handrails on the stairs, that there were signs on the premises to remind workers to use the handrails, that it provided a pouch in which to keep the equipment, leaving workers’ hands free to use the handrails, and that it required the workers to undertake a full apron and boot wash before accessing the stairs.
Factual Issues in Dispute
There were a number of factual issues in dispute, including whether there was blood on the steps, whether Mr Manca was instructed to use the handrails, and what caused Mr Manca to fall.
Mr Fry, who worked in the “knocking box” (not far from the steps in question) gave evidence of having previously complained about the steps because they became bloodied. Mr Fry could not say though whether there was any blood on the steps or whether they were slippery at the time of the incident. Mr Rodrigues, Mr Manca’s supervisor, also gave evidence that he did not observe blood, water, or other substances on the steps when he viewed them shortly after the incident.
In the absence of there being evidence concerning blood being on the steps, the attention shifted to whether there was blood on the soles of Manca’s boots. The primary judge was not satisfied, on the evidence, that there was blood on the soles of Manca’s boots, and, if there was, it was not to the extent that any such blood was slippery. The judge noted there was no expert evidence about the slipperiness or otherwise of the blood, and what evidence there was, was conflicting.
Counsel for Mr Manca also submitted that the surfaces and edges of most of the steps were damaged, worn, and irregular, and it was noted that Teys later installed metal cappings on the edges of the steps. However, there was limited evidence about the physical state of the steps, and it was accepted that there was no evidence demonstrating whether any particular alternative stair applications, treads, system of inspection, or any other precaution not taken by Teys at the time, would have avoided the fall.
In relation to the handrails, the trial judge found that Mr Manca was not specifically instructed by Teys to use handrails, however, he was aware it was prudent to do so from previous employment.2
The primary judge considered that the net effect of the evidence was that it was not clear what caused Mr Manca to slip and fall.3
Decision at First Instance
Based on the factual findings, the primary judge found that there was not a foreseeable risk of a worker slipping on the steps, given the precautions that Teys had taken to avoid or minimise a risk.4
The steps taken by Teys were reasonable and sufficient to mitigate the risk because the stairs had a rough, non-slip surface, employees were instructed to use a handrail (despite the finding Mr Manca had not been so trained) and there were facilities for employees to undertake a preliminary rinse of their aprons and boots.
The primary judge also found, when considering whether Mr Manca contributed to the injury, that by Mr Manca’s choosing to hold his tools with both hands, and not holding the handrail with his right hand, he was contributory negligent in the order of 30%.
Appeal
The notice of appeal contained 15 grounds, many of which were interrelated. Some of the main issues on appeal were:
- Whether it was specifically pleaded Teys failed to give an instruction to Mr Manca about not holding his tools in both hands on the stairs;
- Whether the primary judge conflated foreseeability and breach of duty, such that breach was not independently considered; and
- Whether the stair modifications made following the incident proved Teys was negligent in failing to do so prior to the incident.
The leading judgement was given by Applegarth J, with whom the other judges (Bowskill CJ and Fraser JA) agreed.
Pleadings
Mr Manca’s counsel argued Mr Manca was not specifically instructed by Teys to use handrails, and it was not sufficient to rely on background knowledge gained years earlier about using handrails, or on signs in other parts of the meatworks. This was because an employer’s duty to provide and enforce a safe system of work included the giving of instructions, and the supervision of their enforcement, having regard to the fact that even experienced workers may inadvertently or negligently injure themselves.5
In response to these arguments, Teys contended that such a case was not specifically pleaded.
The Court was not satisfied that Mr Manca’s pleaded case raised the allegation that he should have been specifically instructed during his induction not to carry tools in both hands after the washdown, and it was unfair to Teys for it to face a basis of liability that was not pleaded or particularised.
Accordingly, Mr Manca was unable to advance that argument on appeal.
Conflating Foreseeability and Breach
The Court found the primary judge was correct to conclude that the precautions taken by Teys meant the risk of a person being injured by slipping on the steps was insignificant.
In arriving at this conclusion, the Court stated:6
The primary judge found that if the risk of a person slipping on the steps and being injured was foreseeable, it was “not significant”. This conclusion was based on a number of matters, including the absence of a report of anyone slipping. There was a non-slip floor. Teys provided a handrail at the steps and had erected signs in the premises reminding them to use handrails where provided. … It was unnecessary to carry the knife pouch, knives and other equipment in both hands because the apron and the belt with the pouch could be worn when walking down the steps. … In the light of these precautions, the risk of a person being injured by slipping on the steps was found to be not significant.
Stair Modifications
While yellow metal edging had been installed on the stairs following the incident, the primary judge commented that this simply demonstrated that Teys did undertake safety inspections and made ongoing improvements to the plant when it considered it appropriate.7
The Court agreed with the primary judge’s findings concerning the subsequent improvement to the stairs stating:8
It is arguable that the metal caps on edges might have made the steps safer, but the extent to which they guarded against slipping was not the subject of evidence. The possibility that metal capping may have reduced the risk of slipping does not prove that their installation was a reasonable precaution in all the circumstances.
The Court also cited McHugh J in Dovuro Pty Ltd v Wilkins9 with approval, who stated:10
A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk.
The Court ultimately concluded the primary judge’s findings that Mr Manca had not proven that he slipped due to a failure by Teys to take reasonable precautions was not in error, and the appeal was dismissed with costs.
Key Takeaways
There are a number of important points to remember when defending claims, of which this decision provides a timely reminder.
First, defend the case in front of you. While, in the early stages of defending a claim, particularly in those jurisdictions that have pre-court procedures, during which the issues are often not clearly defined, there is a tendency to assess a case based on all avenues of potential exposure. However, defendants only need to respond to the allegations made against them, and once the issues are clearly defined on the pleadings, that is the case to be met, and on which an assessment of the merits of the claim should be based.
Secondly, the onus of proof lies with the plaintiff. When seeking to establish causation, the plaintiff must do more than lead evidence that gives rise to ‘conflicting inferences of equal degree of probability such that the choice between them is a matter of conjecture.’11 If the plaintiff is unable to establish causation to the requisite standard, the claim may be defensible.
Thirdly, if a factual issue is properly a matter for expert evidence, and no such evidence is obtained, the plaintiff may have difficulty in establishing that matter. While, depending on the circumstances, it can be open for a court to draw an inference in the absence of expert evidence,12the more technical the issue, the more difficult this will be.
And finally, the courts have repeatedly emphasised that steps taken after an incident to reduce a risk do not amount to proof that a reasonable person in a defendant’s position would have adopted such steps prior to the incident, and when assessing what a reasonable person ought to have done, one must avoid hindsight reasoning.13
1 [2024] QCA 060.
2 Manca v Teys Australian Beenleigh Pty Ltd at [40].
3 Ibid at [32].
4 Ibid at [42].
5 Ibid at [64].
6 Ibid at [158].
7 Ibid at [132].
8 Ibid at [163].
9 (2003) 215 CLR 317 at 330 [38].
10 Manca v Teys Australian Beenleigh Pty Ltd at [163].
11 Ibid at [171]; see also Bradshaw v McEwans Pty Ltd Unreported, 27 April 1951.
12 As in TNT Australia Pty Limited v Christie [2003] NSWCA 47, for example.
13 Manca v Teys Australian Beenleigh Pty Ltd at [164].
This article may provide CPD/CLE/CIP points through your relevant industry organisation.
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.
