Bayntun v Carlson
[2000] WASCA 179
•14 JULY 2000
BAYNTUN -v- CARLSON [2000] WASCA 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 179 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:193/1998 | 13 APRIL 2000 | |
| Coram: | KENNEDY J MURRAY J ANDERSON J | 14/07/00 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | MICHAEL JOHN BAYNTUN KEVIN JAMES CARLSON |
Catchwords: | Tort Negligence Workman falling from rear platform of rubbish truck Whether driver negligent in failing to keep adequate lookout for safety of workman before moving off Turns on own facts |
Legislation: | Nil |
Case References: | Nil Jones v Sykes Transport Pty Ltd, unreported; DCt of WA (Deane DCJ); Library No D990169; 21 June 1999 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 State Government Insurance Commission v CSR Limited [1999] WASCA 36 Wade v Allsopp (1976) 50 ALJR 643 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BAYNTUN -v- CARLSON [2000] WASCA 179 CORAM : KENNEDY J
- MURRAY J
ANDERSON J
- Appellant (Plaintiff)
AND
KEVIN JAMES CARLSON
Respondent (Defendant)
Catchwords:
Tort - Negligence - Workman falling from rear platform of rubbish truck - Whether driver negligent in failing to keep adequate lookout for safety of workman before moving off - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant (Plaintiff) : Mr B L Nugawela
Respondent (Defendant) : Mr K N Allan
Solicitors:
Appellant (Plaintiff) : Friedman Lurie Singh
Respondent (Defendant) : K N Allan
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Jones v Sykes Transport Pty Ltd, unreported; DCt of WA (Deane DCJ); Library No D990169; 21 June 1999
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369
State Government Insurance Commission v CSR Limited [1999] WASCA 36
Wade v Allsopp (1976) 50 ALJR 643
(Page 3)
1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Anderson J. I am entirely in agreement with those reasons and I would therefore dismiss this appeal.
2 MURRAY J: The reasons published by Anderson J explain clearly why this appeal must be dismissed. I respectfully agree and have nothing to add.
3 ANDERSON J: This is an appeal from a judgment of Judge L A Jackson in the District Court whereby he dismissed a claim for damages for personal injuries arising from an accident which occurred in Merredin in August 1993.
4 The appellant was employed by the Shire of Merredin as a rubbish collector. His job was to ride the back of the rubbish truck, collecting and emptying bins into the truck. He was one of a team of two, the only other member of the team being the truck driver, who was the defendant and the respondent in the appeal. It was the appellant's case that the accident occurred when his left foot slipped from the rear platform as the truck was moving forward and before he had time to place his right foot on the platform. His evidence was that he retained his grip on the handles, while both feet were dragging along the roadway. Eventually, he managed to haul himself up onto the platform. The truck continued to the next bin stop about 40 metres further on, by which time the appellant was suffering from what he described in evidence as a "sharp pain down the left-hand side of my back". There was evidence that he had sustained a facet joint injury at the L4/5 level of his spine which completely incapacitated him for work for some six or seven months. It was the appellant's case that he has suffered permanent damage to his spine which has reduced his working capacity.
5 The case is a little unusual in that the appellant did not institute proceedings against his employer, the Shire of Merredin. He sued only the truck driver, Mr Carlson. He does not allege that there was any duty on Mr Carlson to devise a safe system of work. There is no allegation of an unsafe system of work. According to the statement of claim, Mr Carlson was negligent because he:
"(a) failed to have any or adequate regard for the safety of the Plaintiff who was his passenger;
(b) failed to keep any or adequate lookout for the safety of his passenger;
(Page 4)
- (c) failed to wait for the Plaintiff to signal that it was safe for the Defendant to continue driving."
6 The last particular refers to the fact that there was a buzzer which could be sounded in the driver's cab by pressing a button located at the rear of the truck.
7 According to the reasons for judgment, it was conceded at trial that particular (c) "on the evidence, should not be pressed". The appellant's evidence was that it was not his practice to use the button to signal the driver to proceed after he had mounted the truck following a bin stop or to signal in any other way. His evidence was that he had received no instructions from his employer to do so and, as to the buzzer, he did not even know if it was working. His counsel put a number of hypothetical questions to him (AB 51) designed, it seems, to obtain evidence as to when the appellant "would have pressed the buzzer". The following is an extract of some of the examination-in-chief on this point:
"Going back to how you described to his Honour how your accident happened when you put both hands on the handles and your left hand - sorry, your left foot on the platform and you were bringing your right foot back to the platform when the truck moved off and you lost your balance, at what point in time would you have pressed the buzzer?---If I was going to use it when I would hop on?
On that day, yes?---Yes, if I was going to use it, after I had hopped up I would have pressed the buzzer.
After you had hopped up?---Yes, after being up and I was safely there, I would have then pressed the button.
After both your feet are on the platform?---Yes."
8 This line of questioning was plainly inadmissible. The appellant had given clear evidence that he never used the buzzer after a bin stop. The learned Judge intervened and obtained a concession from counsel to that effect. His Honour said to counsel:
" … but he wasn't going to use it anyway. That is the evidence. They had got into a habit when picking up ordinary bins that it simply wouldn't be used.
NUGAWELA, MR: Indeed.
(Page 5)
- L.A. JACKSON DCJ: That is my understanding of the position. Is that right?---Yes."
9 That issue having been disposed of in that way, I consider that the learned trial Judge was perfectly justified in saying in his judgment, in effect, that it was no part of the appellant's case at trial that the driver was negligent in failing to wait for a signal from the appellant that it was safe to proceed. There being no signalling system, and there being no plea to the effect that there was a duty on the truck driver to devise a signalling system, it is beside the point to allege as a particular of negligence that the truck driver "failed to wait for the plaintiff to signal". He would not have received a signal however long he waited.
10 This is not to say that there was no duty upon the truck driver to take reasonable steps to ensure that it was safe for him to move on. This is what the appellant's case came down to at trial. As I understand the course of the evidence, the appellant's case was put upon the basis that Mr Carlson, being the driver of the truck, was duty-bound to take reasonable care not to drive the truck in a manner that exposed the appellant to unnecessary risk of injury. It may be accepted that the content of this duty included taking reasonable steps to ensure that the appellant had fully remounted the platform at the back of the truck, and was holding on, before driving on. The learned trial Judge found that, in the absence of a signalling system, the only reasonably practicable means available to the respondent to ensure that the appellant had fully remounted the truck and that it was therefore safe to proceed was by looking in the wing mirrors and observing the appellant's activities.
11 It is clear that his Honour accepted the evidence of the respondent as to what observations he made and it is clear that his Honour found that on the strength of those observations it was not negligent of the respondent to move on when he did. His Honour summarised the respondent's evidence in the following way:
"He said he had stopped the truck and had waited for the plaintiff to empty the bin. He said he observed the plaintiff collect the bin. He lost sight of him when he was behind the truck but assumes that the plaintiff in the ordinary way emptied the bin into the rear of the rubbish truck. He says he observed the plaintiff wheel the bin back to its position and then get onto the truck. He could only see the left hand side of the plaintiff but could observe the plaintiff's left hand grasping the handle on the side of the truck and part of plaintiff's leg and foot
(Page 6)
- apparently on the platform. The defendant then put the truck into first gear. He again looked through his left hand wing mirror and observed the plaintiff apparently in position as usual on the left hand corner of the truck. He then checked in his right hand mirror as he moved off to ensure there was no traffic coming up the road behind him. He said he had moved about 20 metres when he realised he could no longer see the plaintiff. He stopped the truck." (AB 11)
12 At AB 15, his Honour said:
"I accept the defendant's evidence in this case. He was a most experienced employee having driven various rubbish trucks for the Shire of Merredin for many years. He had himself worked as an off-sider. When he says that he observed the plaintiff on two occasions before the truck moved off I accept his evidence. In my opinion the amount of time over which he observed the plaintiff was more than adequate for the plaintiff to have properly got himself into position on the platform. There was no reason for the defendant to think otherwise. His duty is to act reasonably. He is not an insurer. He does not become liable simply because the plaintiff has fallen off."
13 The reference to observing the plaintiff "on two occasions" is plainly a reference to the following evidence which was given by the respondent. It was given in examination-in-chief and I will omit the questions which elicited the evidence:
"When he got on he was - I could see part of his left leg, left foot, and [left] arm holding the handle … and, to me, he was on there quite securely. I put the truck into gear. Then I moved forward, and I was probably seeing Mick for probably 2 seconds. Then I looked in my right-hand side mirror to check for traffic … " (AB 187)
14 In cross-examination, an inaccurate summary of that evidence was put to the respondent, with which he did not agree. He said (AB 198):
"No. I knew he was on because when I put the truck into first gear and moved forward, I was still watching in the left-hand mirror, and Mr Bayntun was on there for possibly 2 seconds before I checked my right-hand view mirror."
(Page 7)
15 Although I do not think it matters, it is perhaps not strictly accurate to treat this evidence as evidence of two observations. It must be remembered, however, that his Honour had the benefit of seeing the respondent give that evidence. It is clear from the transcript that the respondent tended to gesticulate, and to act out his testimony as he was giving it, and it may be that, putting the respondent's oral evidence and body movements together, it was open to the trial Judge to understand his evidence as amounting to evidence that he made two observations of the appellant: the first before putting the truck into gear and the second after having put the truck into gear and commencing to move off. At all events, the appellant does not by any of his grounds of appeal plead that it was not open to his Honour to find on the respondent's evidence that the respondent had made two observations of the appellant mounted on the back of the truck.
16 As there is no allegation against the respondent of a failure to devise a safe system of work involving the use of signals, the appellant could not succeed unless he could persuade the court of trial that the respondent had been negligent in his manner of operation of the truck. Once the respondent's evidence was accepted, there was no basis on which a finding of negligence in the operation of the truck could rest. The respondent's duty was to take reasonable steps in the circumstances to ensure that he could move off without exposing the appellant to unreasonable risk of injury. That involved ensuring as best he could from his position in the cab of the truck that the appellant was fully mounted on the rear platform and that he was holding on. The only means reasonably available to him was by looking in the left-hand wing mirror and judging by what he could see of the appellant that he was fully mounted. What he saw was the appellant's left-hand grasping the handle and the appellant's left foot securely on the platform. Not until then did he put the truck into gear and commence to move off. Accepting those to be the facts, it was open to the learned trial Judge to conclude that the respondent had not failed to take reasonable care for the appellant's safety.
17 I would dismiss this appeal.
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