Barra Pty Ltd, Kelly v Ramsey

[1997] QCA 116

IN THE COURT OF APPEAL	[1997] QCA 116
SUPREME COURT OF QUEENSLAND

Appeal No. 6317 of 1996

Brisbane

[Barra P/L & ors. v. Ramsey]

BETWEEN:

BARRA PTY LTD

(Third Defendant) Appellant

AND:

KEITH JOHN KELLY SENIOR

(Fourth Defendant) Appellant

AND:

KEITH JOHN KELLY JUNIOR

(Fifth Defendant) Appellant

AND:

MILDRED PATRICIA KELLY

(Sixth Defendant) Respondent to Cross-Appeal

AND:

CHRISTOPHER EVAN KELLY

(Seventh Defendant) Appellant

AND:

BRIAN ROBERT RAMSEY

(Plaintiff)	Respondent/Cross-Appellant
Fitzgerald P. Williams J. Lee J.

to the orders made.
APPEAL AND CROSS-APPEAL DISMISSED, IN EACH CASE WITH COSTS TO BE
TAXED.

CATCHWORDS:	NEGLIGENCE - breach of duty - apportionment of responsibility - appeal and cross-appeal - respondent injured whilst removing bags of soya beans stored at appellant’s premises - trial judge held that appellants were negligent but respondent guilty of contributory negligence - whether trial judge’s findings as to how accident occurred against the weight of the evidence - after closure of respondent’s case appellants had conversation with respondent’s witness and sought leave to cross-examine witness further - whether refusal by trial judge to grant leave for further cross-examination caused substantial miscarriage of justice.
Counsel:	Mr P.A. Keane Q.C. with him Ms J.H. Dalton for the appellants. Mr J. Griffin Q.C. with him Mr. J. Rolls for the respondent.
Solicitors:	Groom & Lavers for the appellants. Shine Roche McGowan for the respondent.
Hearing Date:	30 April 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 6317 of 1996

Brisbane

Before Fitzgerald P.
Williams J.
Lee J.

[Barra P/L & ors. v. Ramsey]

BETWEEN:

BARRA PTY LTD

(Third Defendant) Appellant

AND:

KEITH JOHN KELLY SENIOR

(Fourth Defendant) Appellant

AND:

KEITH JOHN KELLY JUNIOR

(Fifth Defendant) Appellant

AND:

MILDRED PATRICIA KELLY

(Sixth Defendant) Respondent to Cross-Appeal

AND:

CHRISTOPHER EVAN KELLY

(Seventh Defendant) Appellant

AND:

BRIAN ROBERT RAMSEY

(Plaintiff) Respondent/Cross-Appellant

JOINT REASONS FOR JUDGMENT - FITZGERALD P. and LEE J.

Judgment delivered 13 May 1997

This is an appeal and cross-appeal from a judgment delivered in the Trial Division on 5 July 1996.

The respondent was injured on 11 November 1986 when bags of soya beans which were stacked on

pallets fell onto him while he was engaged in moving other bags onto the tray of a truck. It was held that

the appellants had been negligent and that the respondent had been guilty of contributory negligence,

and liability was apportioned two-thirds against the appellants and one-third against the respondent.

The amount of the respondent’s damages had been agreed at $478,986.00. The appellants were

ordered to pay the respondent $319,324.00 with costs, including reserved costs, to be taxed. By their

notice of appeal, the appellants seek judgment against the respondent with taxed costs, including

reserved costs, of the trial and the appeal; alternatively, they seek a retrial, or that there be an

adjustment of liability in their favour and, in either event, that the respondent pay the taxed costs of the

appeal. The respondent, who has cross-appealed, seeks judgment against the appellants for the full

amount of his damages and, in addition, seeks to have judgment, with costs, against an additional

defendant whom the trial judge held was not liable.

The bags and pallets, which belonged to the respondent, had been stored at the appellants’ premises

some months earlier, and, on the day when he was injured, the respondent had come, in a truck driven

by one Kuhn, to remove some of them. There was an issue both at trial and in this Court concerning

who had stacked the bags and pallets at the appellants’ premises, which was resolved by the trial judge

in the respondent’s favour. There was sufficient evidence to support that finding, and the limited

criticism directed by the appellants towards his Honour’s reasoning does not persuade us that his conclusion was in error. His omission to make express reference to a portion of the testimony of one

witness which favoured the appellants does not warrant interference with a conclusion which was based

on his acceptance of the credibility and reliability of an independent witness. It was also found at trial,

correctly in our view, that some of the pallets and bags, including those which fell onto the respondent

and pushed him against the truck, injuring him, were stacked negligently and were unstable.

The bags and pallets were stacked in the south-eastern corner of the appellants’ premises. Although

the evidence is unclear in a number of respects which are not covered by findings, it seems to us that

the position was as follows. There were 22 pallets, each of which held 20 bags together weighing

approximately one tonne. The bags “did not have gussets and were made of a rather slippery type

synthetic material”. The bags on each pallet were in five layers, each containing 4 bags arranged around

and overlapping the perimeter of the pallet and touching, or near, each other at the centre of the pallet.

The 22 pallets were in nine stacks, in 3 rows each of 3 stacks, along the eastern and southern walls.

It is convenient to refer to the rows which ran in a north-south direction. Each of the three stacks

adjacent to the eastern wall consisted of three pallets and 15 layers of bags. The middle row was

similar. The front row consisted of a stack comprising two pallets and ten layers of bags adjacent to

the southern wall, and two stacks each of a single pallet and five layers of bags. The stacks were not

touching each other.

The pallet and bags at the northern end of the front row were placed on the tray of the truck using a

forklift, but there was insufficient room to manoeuvre the forklift to allow it to be used to move the

middle stack of that row. The respondent lifted the top two layers of bags from that stack onto the truck and then was injured. There is dispute concerning whether he was standing between the middle

stack in the front row and the truck, climbing onto the middle stack in the front row, or on that stack

when the top layers of the middle stack in the middle row fell on him. According to the respondent, and

as the trial judge effectively found, he was on the middle stack in the front row and there was nothing

which caused bags (and, on one version by the respondent, the top pallet) in the middle stack in the

middle row to fall; neither physical contact with that stack, vibration, air movement, nor any other factor.

As has already been noted, the bags in the various stacks were held not to be touching another stack.

The proposition that nothing except instability caused the bags which fell to fall, which founded the

conclusion that the appellants were negligent, also supported a finding that the respondent was

contributorily negligent. The following passages in the trial judge’s reasons for judgment sufficiently

reveal his Honour’s approach.

“The [respondent] said that he stood on the middle pallet in the front row. Mr Kuhn was on the tray of the truck. They intended that the [respondent] remove the bags and pass them to Mr Kuhn who would place them on the tray of the truck. The [respondent] removed 8 to 10 bags from the pallet. Mr Kuhn then called out a warning, and a bag fell from the top (that is, from the third pallet) of the second row, knocking the [respondent] against the side of the truck. Bags kept falling then from behind him.

The [respondent] said that neither he nor Mr Kuhn had done anything earlier to affect the stability of the stack of bags.

...

... I regarded Mr Kuhn as an independent witness, and I found his evidence credible.”

“Importantly, Mr Kuhn confirmed, ... that neither he nor the [respondent] did anything which could have affected the stability of the stack of bags on the pallets; and ... that when the [respondent] was knocked by the bags, he was working from a position standing on the central pallet in the front row, not on the floor.

...

... The bags which fell onto the [respondent], while he was standing on the front pallet, came from the top of the row behind. The pallets he was in the process of removing were the four pallets in the front row. It is difficult to identify any reason why pulling on the row behind would either facilitate his movement of the front row bags onto the truck, or help himself get onto the tray of the truck, positioned where it was.

...

... the bags when stacked on the pallets were not rigid, and ... there was the prospect that bags could become dislodged, or that a person standing on the pallet, on top of the bags, would have been somewhat vulnerable. ...

...
There is no evidence of substantial disruption to the bags on the pallets in the second
row at any stage. ... The [respondent] was drawing bags from the front. Yet the bags
which fell, came from the top, that is third pallet from the ground in the second row.

... [The bags] were on 41" pallets, and overhung the pallets. They were of slippery type synthetic material, and the result was not rigid, with the prospect of dislodgment, and risk to a person standing on top of them.

...

... it was unsafe to have a stack of that height involving filled bags of slippery type fabric

and overhanging the 41" pallets.

...

There is nevertheless ground for a finding of contributory negligence. The [respondent] agreed it was not ‘a safe thing to do’ to work from the loaded pallet, without a forklift ... . He did not check the apparent stability of the stack, visually, before commencing the removal operation ... , and in particular did not check the ... stack which was the one which collapsed ... .

On the other evidence in the case, there was real potential instability in a stack of bags like this, and climbing on it was therefore inadvisable. The [respondent] was contributorily negligent, particularly, in failing to check the stack for its stability before commencing the operation. ... That failure to check - a proper check should have shown up the risk - is especially seen to be culpable when taken with the [respondent’s] concession that working on this stack manually, that is, without a forklift, was unsafe.

The major fault, which I set at 2/3, lies with the [appellants], for creating or maintaining the potentially unstable stack, with the [respondent] carrying 1/3 of the responsibility, on that basis.”

In accepting the evidence of the respondent and Mr Kuhn to which he gave “full weight”, the trial judge

said that he had “carefully assessed” it, and that he “was influenced by my view of their demeanour as

witnesses”. However, the appellants submitted that the trial judge erred in his conclusion concerning

how the accident happened, and that that conclusion was against the evidence and was reached after

rejecting evidence which should have been admitted. The essence of the appellants’ submission was

that it should have been held that the respondent touched the stack which fell, causing it to fall.

The findings made were inconsistent with the respondent’s amended statement of claim, which was

delivered only shortly before the trial, on 4 June 1996. The respondent pleaded that he was on the

northern stack of the front row, not the middle stack, that Mr Kuhn was on the southern stack of the

front row, not the truck, that they were both loading bags from the middle stack in the front row, which

did not consist of one pallet and five layers of bags but two pallets and ten layers of bags, and that they

had loaded about 15 bags onto the truck and Mr Kuhn had just climbed onto the truck when not only

the top pallet in the middle of the middle row and the 20 bags on it but also the top pallet in the middle

of the back row fell forward.

In an answer to an interrogatory, the respondent gave another version, in which, “immediately prior to”

the bags falling on him, he was “standing between the pallets of soya beans and the truck ... passing

bags of soya beans from pallets to the person standing on the truck”.
The trial judge also rejected the evidence of a number of witnesses (three of whom apparently
independent]. As to the first, his Honour said:

“David Darby, who was loading his own truck at the time, gave evidence of seeing the [respondent] pulling on a bag in the stack apparently to facilitate his getting onto the tray of the truck. But as Mr Darby conceded in cross-examination, he was principally attending to his own work, and first alerted to the [respondent’s] predicament by the noise of the collapsing stack. I am not confident that Mr Darby saw what he now says he saw, and I reject his evidence insofar as it conflicted with Mr Kuhn’s.”

The evidence of one of the appellants was also rejected, primarily because of his Honour’s preference

for oral evidence over the appellant’s evidence, which was given on affidavit.

Further, the respondent’s evidence was also preferred to that of two other witnesses in the following

passages.

“Mr Christoffel gave evidence that in 1986 (or 1985), the [respondent] told him that he went ‘to pull himself up’ on a stack of seed, and it fell on him. I have carefully considered whether I should accept that evidence, especially in context of Mr Darby’s claim, but I reject it as unreliable. It was founded on a recollection 10 years old, not supported by any document, and was the recollection of a person not involved in the incident. I am not questioning Mr Christoffel’s honesty, but not accepting the reliability of that piece of evidence.

Mr Shannon, ..., also gave similar though not identical evidence, that in November, 1986, the [respondent] told him that he (the [respondent]) had “grabbed hold of the bags” to pull himself up onto the tray of the truck, leading to the collapse of the bags. The [respondent] denied that allegation when it was put to him in cross-examination, and at the time I found that denial credible. Significantly, Mr Shannon did not mention this claim in his statement ... prepared in July, 1987. There is of course a difference between Mr Shannon’s and Mr Christoffel’s verbiage: pulling himself up on to the truck, pulling himself up on the stack. That increased my circumspection about relying on this evidence. It is in any case hard to conceive why a person would pull or grab at a bag in the stack for either of those purposes. In the end, the age of the recollection, not supported by any contemporaneous document, and from a relative ‘outsider’, are critical features. I likewise did not accept Mr Shannon’s evidence on that point as reliable.”

Finally, and perhaps most significantly, the trial judge refused to permit the appellants to call evidence

that the respondent had informed another person, Mr Trimmingham, that the respondent’s “injury was

caused when he grabbed on bags to hoist himself up”. That had not been put to the respondent or to

Mr Trimmingham, who had been called as a witness by the respondent, because the appellants were

unaware that Mr Trimmingham could give evidence of such a conversation until the interval between the

closure of the respondent’s case and the opening of the case for the appellants.

While the trial judge had a discretion to permit or refuse the appellants’ further cross-examination of the

respondent, which was necessary if Mr Trimmingham was to be called to give evidence of their

conversation, in the context of what his Honour described as “a closely fought trial” it was wrong to

refuse leave, apparently on the basis that to grant leave would encourage a lack of “discipline in the

proceedings with a view to bringing an end to it at some finite point”. The justice of the cause[1] required

[1]          Brown v. Petranker (1991) 22 N.S.W.L.R. 717; Urban Transport Authority of New South Wales v. Nweiser (1992) 28 N.S.W.L.R. 471

that the additional brief evidence be received, and, subject to one qualification, the rejection of the

evidence involved a substantial miscarriage in the trial.[2]

[2]          Supreme Court Act 1995, s. 230; Stead v. State Government Insurance Commission (1986) 161 C.L.R. 141; cf. Queensland v. J.L. Holdings Pty Ltd (1997) 71 A.L.J.R. 294.

There would not have been a miscarriage if Mr Trimmingham’s evidence would not have affected the

trial judge’s acceptance of the evidence of the respondent and Mr Kuhn concerning how the accident

occurred, but that cannot be concluded. It would be illogical to suggest that the combined weight of

the evidence that the respondent touched the stack which included the bags which fell might not have been significantly increased by the additional evidence which the appellants sought to lead from Mr

Trimmingham, whose earlier evidence had been accepted as correct by the trial judge. However, the

question remains whether the outcome of the case would have been different if the respondent had been

found to have pulled on, or pushed against, the stack which included the bags which fell.

We have earlier discussed the basis on which the trial judge apportioned liability. On the alternative

hypothesis now under consideration, the appellants remain negligent for the reasons given by the trial

judge. That was not disputed. However, the respondent, in addition to climbing on a stack in the front

row without checking on the stability of the adjoining stack in the second row, also placed weight on

that stack without checking its stability. In both sets of circumstances, the appellants were primarily to

blame for the injuries to the respondent and he was contributorily negligent. On the latter hypothesis,

an apportionment of two-thirds against the appellants and one-third against the respondent is

appropriate. On the basis on which the trial judge assessed liability, his apportionment was more

favourable to the appellants than we would have assessed had it fallen for us to do so. However, in

accordance with established principle,3 that is not of itself sufficient to warrant this Court’s interference

and we do not think that there is sufficient reason for us to do so.

The respondent’s other complaint related to the dismissal of the action, with costs, against one of the

persons named as a defendant; costs were ordered “notwithstanding that issues involving her, occupied

only minimal time during the trial”, the trial judge stating that that was for the taxing master. It is

regrettable that in such circumstances the matter should be made the subject of appeal.
The point arose because there was some question concerning which of the persons named as

defendants were engaged in material business activities. The trial judge held that there was insufficient

evidence to permit him to reasonably draw any inference in favour of the respondent against the

defendant whom he dismissed from the case. While he might have taken a different view, he was not

obliged to do so, and there is no sufficient justification for this Court to alter a conclusion of fact based

upon equivocal evidence.

In summary, both appeal and cross-appeal should be dismissed, in each case with costs to be taxed.

3           Podrebersek v. Australian Iron & Steel Pty Ltd (1985) 59 A.L.J.R. 492.