Campaspe Shire Council v De Young
[2008] VSCA 129
•25 July 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3729 of 2007
| CAMPASPE SHIRE COUNCIL | |
| Appellant | |
| v | |
| LAWRENCE DE YOUNG | Respondent |
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JUDGES: | ASHLEY and KELLAM JJA and OSBORN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April 2008 | |
DATE OF JUDGMENT: | 25 July 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 129 | |
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TORTS – Occupier – Duty of care – Breach of duty – Foreseeability of risk of injury – Utility of proposed remedial measure – Obviousness of risk – Sufficiency of evidence – Jury verdict open – Wrongs Act 1958 s 14B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Gillies QC and | DLA Phillips Fox |
| For the Respondent | Mr T Tobin SC and Mr P Jewell | Nowicki Carbone & Co |
THE COURT:
The appellant (‘the Shire’) is the occupier of a waste transfer station (‘the premises’) at Toolleen in Victoria. Toolleen is approximately 150 kilometres north of Melbourne.
On 24 November 2002 the respondent entered the premises lawfully for the purposes of disposing of rubbish. Whilst disposing of an old television set in a bin at the transfer station he suffered injury to his left eye when he was struck in that eye by an electric plug connected to the television set by an electric cord.
The respondent brought proceedings for damages in the County Court against the Shire in negligence and/or in breach of its statutory duty as an occupier of the premises under Part IIA of the Wrongs Act 1958. In June 2007 a jury found for the respondent and awarded him damages of $30,000. Judgment was ordered in his favour in the sum of $34,200 including interest. The Shire appeals the whole of the judgment.
The grounds of appeal
The notice of appeal filed on behalf of the Shire contains six grounds but before us counsel for the Shire stated that he relied only upon grounds 1 and 3. Those grounds are:
1.That there was no evidence to support the jury’s verdict that the appellant’s (defendant’s) negligence and/or breach of statutory duty (Part IIA of the Wrongs Act 1958) was a cause of the respondent’s (plaintiff’s) injury loss and damage.
3.That the verdict of the jury in favour of the respondent (plaintiff) was against the weight of the evidence.
The liability issue at trial. Pertinent evidence
It is necessary to shortly describe aspects of the Shire’s defence and to identify pertinent evidence adduced at trial. By its defence, the Shire admitted that it occupied the premises. It denied negligence and it denied that it was in breach of statutory duty. However it did not contend that the respondent was guilty of contributory negligence. Accordingly, the only liability issue before the jury was whether the respondent had established that the Shire’s negligence and/or breach of duty was a cause of his injury, loss and damage.
There was evidence that in 1994/95 the Shire turned the tip which had existed previously at the premises into a waste transfer station. A steel bin with a capacity of 24 square metres was placed upon the premises. It was 1.9 metres high, 2.5 metres wide and 6.1 metres long.[1] A ramp was built leading up the side of the bin. The top of the bin was approximately 1.2 metres above the level of the ramp at the point where it intersected with the bin.
[1]The bin, when full, could be removed and replaced.
The respondent gave evidence that he attended at the premises on 24 November 2002 in order to deposit refuse at the transfer station. He drove there in a utility vehicle in company with his brother. In the tray of the utility he had a wheelie bin containing household rubbish. In addition there was some hard rubbish, including an early model 17 inch television set. He reversed the utility up the ramp towards the bin. He lowered the rear tailgate and stood on the tray of the utility. From that position he threw the bagged household rubbish into the steel bin. He then stepped down to the ramp and took the television set from the tray of the utility, lifted it up to the edge of the bin and dropped it into the bin. As the television set fell into the bin the electric plug attached to the electric cord of the television came up and struck him in the left eye. The respondent was five feet six inches (1.67 metres) tall. He was 54 years of age at the time of the accident.
The respondent also gave evidence that he had attended the premises on numerous occasions in the years preceding the date of the accident but that previously he had never placed a television set or a like object in the bin. He said further that there were two signs at the premises, photographs of which were tendered before the jury. The first of these signs stated ‘ALL WASTE IS TO BE DEPOSITED IN THE BIN ONLY – DUMPING OF WASTE ON THE GROUND IS PROHIBITED – INFRINGEMENT $100 – IN COURT $2000’. The second sign related to the waste transfer station. It stated that all waste was to be deposited in the bin but that some waste - including concrete, car bodies, chemicals, tyres and batteries and dead animals - was ‘PROHIBITED AT THIS SITE’. Accordingly, the instructions given by the Shire to users of the waste station were that all permissible waste was to be placed in the bin.[2]
[2]Although the respondent gave evidence, not unambiguous, that at some stage there had been an area within the premises where old car bodies and other heavy items had in fact been dumped.
A consulting engineer, Mr Richard Lightfoot, was called on behalf of the respondent. He gave evidence that a ‘risk assessment’ was a ‘primary design function’ to be undertaken prior to construction of or the undertaking of a process. In this connection we note that by consent there was put in evidence a document entitled ‘Guide To Best Practice At Transfer Stations’. Published by Eco-Cycle Victoria, and part of the Shire’s discovery, it dealt specifically with the issue of risk assessment:
Risk assessment involves the identification and characterisation of the nature of existing and potential adverse effects to humans and the environment resulting from exposure to various hazards. Risk assessment leads to the development of a risk management plan which will provide control measures to target and manage the identified risks. The control measures used for reducing or eliminating risks should be regularly reviewed and the risk management plan updated appropriately.
In an answer to the plaintiff’s interrogatories, which answer was put in evidence, the Shire conceded that a risk assessment was not undertaken prior to construction of the waste transfer station. Nor was there any evidence before the jury of the Shire having adopted, before the incident in which the respondent was injured, a risk management plan in relation to the waste transfer station.
The Shire’s failure to conduct a risk assessment was said for the respondent to have meant that a reasonably foreseeable risk of injury was not identified; and, having been identified, then at least reduced. Mr Lightfoot gave evidence that three steps could have been undertaken to reduce the risk of an injury such as occurred in this case. The first was to have had the ramp at the same height as the top of the bin. That could have been achieved, he said, by the use of smaller bins, which would have allowed the existing ramp to be used. Alternatively the risk of injury could have been reduced by the construction of a higher ramp if the large bins were to remain in service. The second step was the provision of a warning sign which would ‘indicate that any trailing cables or anything hanging on to objects’ that were dumped in the bin should be removed. The third step was re-consideration of the opening times of the premises, so as to ensure that they would be under the control or supervision of a person during such times.
The appellant’s submissions
In this Court, counsel for the Shire submitted that the complaint that his client failed to conduct a proper risk assessment was met easily. He contended that the accident which occurred was not reasonably foreseeable. The incident, counsel asserted, was a freak accident which would not have been predicted by risk assessment.
Concerning the suggestion that a sign should have been erected, warning that loose cords should be cut off electrical appliances such as television sets, counsel submitted that it proceeded from a false basis – that is, that risk of injury was reasonably foreseeable. A like submission was advanced in relation to Mr Lightfoot’s evidence regarding the employment of a supervisor on duty. In addition, counsel submitted that there was no basis for concluding that, had a supervisor been present, any different result would have occurred in the circumstances of this case.
Counsel also submitted that having the top of the bin at the same height as the ramp would have achieved nothing. In this regard he relied upon the evidence of Mr Lightfoot that if the top of the bin had been at the same level as the ramp, a safety rail at one metre above ground level would have been required; and upon the witness’s evidence that if a safety rail had been in place, then an infill of approximately 700 mm would have been required. So, counsel argued, had the top of the bin been lower, and had there been a safety rail complying with the recommended practice, the respondent would nevertheless have deposited the television set in the bin in the same fashion. That is, he would have put the television set over the rail and the electric cord would still have followed the same course as it did in the circumstances before the jury. Counsel argued that there was thus no step open to the appellant which would have avoided or minimised risk of injury; and that the Shire had been justified in relying upon the respondent’s common sense and experience to avoid injury.
Resolution of the appeal
Ground 1 of the grounds of appeal, noted at [4], in terms raises issues of negligence (and breach of statutory duty) and causation. The submissions advanced by the appellant, however, focussed only upon aspects of the first issue: the contention that there was no reasonably foreseeable risk of injury; and, alternatively, the proposition that no step had been identified the taking of which would have eliminated or reduced foreseeable risk of injury, and that the appellant had been justified in relying upon the respondent’s common sense and experience. It was not submitted, if it had been open to the jury to conclude that there had been a reasonably foreseeable risk of injury, and to conclude that such risk could have been at least reduced by remedial action, that the respondent had nonetheless not established that failure to take such action was a cause of him sustaining injury.
There can be no doubt that the Shire as the occupier of the premises owed the respondent a duty of care. The issue before us, in light of the way in which the appeal was argued, is whether the jury could have concluded reasonably that the Shire was, in all the circumstances of the case, in breach of the duty which it owed to the respondent pursuant to s 14B(3) of the Wrongs Act 1958.
The standard of care owed by the Shire to the respondent is defined as being:
… to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
Section 14B(4) lists a series of matters which go to the question of reasonable response to a foreseeable risk.
As noted above, the Shire first contended that there had been no reasonably foreseeable risk of injury - that the injury sustained by the respondent was in consequence of a freak accident. But although it is true that counsel for the Shire used the words ‘freak accident’ in his final address to the jury, his cross-examination of the respondent, and more particularly of the consulting engineer Mr Lightfoot, was to the contrary.
To say of an incident that it was a freak occurrence implies that it was an event beyond the range of reasonable foreseeability; and so implies no fault on the part of anyone in its having occurred. But in cross-examination of the respondent, notwithstanding also the fact that the Shire did not allege contributory negligence against him, the proposition was put to him that he was at fault. He was asked ‘Have you heard the expression “I’m to blame myself?”’.
This theme was repeated by counsel in his final address when he said:
This freak accident was caused if by anyone, it was caused by the activity of the plaintiff and that’s our case, so that if there was fault on behalf of anyone, if there was any fault on behalf of anyone, if there was any fault, it was the fault on behalf of the plaintiff.
Of more significance was the following passage in cross-examination of Mr Lightfoot:
QUESTION: … if the cord is over – is on my side for instance of a barrier, that’s directly in front of me and I’m putting the tv over that side then as we are all familiar with, what occurs is the tv goes down and the cord comes up?
ANSWER: The cord’s got to be pulled to go over the top to drop in.
QUESTION: Of course,
ANSWER: Yes.
QUESTION: If I asked a grade 1 person that, they’d say that wouldn’t they?
ANSWER: Well I hope they would.
QUESTION: Yes exactly. It doesn’t take an engineer saying well if you drop a tv over there up comes the cord.
ANSWER: Yes.
The gist of this cross-examination was that the way in which the cord came to strike the respondent in the eye was entirely foreseeable – indeed, the inevitable consequence of dropping a television set into the bin whilst the cord was still on the near side. It also laid a foundation for the alternative case advanced by the Shire.
In his final address, in the course of criticising the evidence given by Mr Lightfoot to the effect that the bin should have been wholly below the level of the ramp, counsel said:
If there had been a set up on this occasion with the top of the bin about level with the depositing area of the landing bay and there had been a bar across of about one metre in height and if the gentleman had adopted a similar procedure when he rested the tv on the bar and let if fall across, and if the cord, for example, had been on his side of the bar and the tv falling on the bin side of the bar, (what) would have been the likely behaviour of the trailing (cord)[3] for a start?
[3]The transcript records the world ‘board’ but clearly the intention of counsel was to use the word ‘cord’.
Thereafter counsel said:
Most helpful and we were all so grateful and Mr Lightfoot’s explanation as to what would have happened in relation to the cord had been at the alternative over the rail. Absolutely it depends, no difference whatsoever. Over goes the tele, up comes the cord, flick and click go the shears.`
In this colourful submission, which was inconsistent with the proposition that there was no reasonably foreseeable risk of injury, counsel addressed the Shire’s alternative case – the subject of its alternative submission in this Court. He argued that if there had been a recessed bin as recommended by Mr Lightfoot, and if there had been a bar at one metre above ground level in accordance with recommended practice, the foreseeable and likely action of a cord which was left hanging over the bar as a television set was dropped into the recessed bin would have been precisely the same as in the circumstances which were before the jury.
In our view - just as counsel for the Shire suggested, in effect, to both Mr Lightfoot and the jury – if an object such as a television set was deposited into a bin in the manner required at the Shire’s premises, there was a reasonably foreseeable risk of physical injury by the action of the cord and plug attached to such object. Certainly the jury was entitled to so conclude. Mr Lightfoot’s evidence that he knew of no similar incident could not have been decisive of a contrary conclusion in light of the passages in his cross-examination and in counsel’s final address to which we have referred.
We go to consideration of the Shire’s alternative submission - that even if injury to the respondent was reasonably foreseeable, the exercise of reasonable care by the Shire would not have reduced the risk of injury; and that the Shire was justified in relying upon the respondent’s common sense and experience to avoid injury.
There was evidence before the jury as to recommended practice in the construction of waste transfer stations, and as to the practice in fact adopted by other municipal authorities. First, the ‘Guide to Best Practice at Transfer Stations’, published in 1998, contains a diagrammatic representation of types of ‘direct load operations’ into bins such as that used by the Shire at the Campaspe waste transfer station. It states that bins ‘may range from 3 square metres to 30 square metres depending on the throughput requirement’. It states that in ‘such an operation waste is emptied directly into the skips from collection tanks and/or the general public’. All of the schematic representations contained in the guide provide for the bin to be below the level of the area from which the waste is to be transferred. All of them provide for a safety barrier.
Secondly, Mr Lightfoot produced photographs of the Nillumbik waste transfer station. They showed that at that waste transfer station the height of the bin was approximately level with the height of the platform.
Thirdly, Mr Lightfoot gave evidence that he had attended at and taken photographs of the waste transfer facility at the City of Darebin. Photographs of the Darebin transfer station demonstrated that the top of the bins were level with or below the depositing platform.
Fourthly, Mr Lightfoot gave evidence that he had attended at the Moira Shire Council waste transfer station. At that station the disposal bins were placed adjacent to a ramp, just as was the situation at the Campaspe waste transfer station. However, consistent with the photographs of the Nillumbik and Darebin waste transfer stations, and with the diagrammatic descriptions contained in the Guide, the height of the ramp where it met the bin was approximately the same as the height of the bin.
Accordingly, the evidence before the jury was that the construction of the Campaspe waste transfer station differed substantially from that proposed by the ‘Guide to Best Practice at Transfer Stations’ and from the construction at other stations photographed by Mr Lightfoot. The Shire called no evidence to rebut Mr Lightfoot's evidence about these matters. Neither was there evidence that any of the other transfer stations had been constructed at a time which was irrelevant to this proceeding.
But, as noted above, counsel for the Shire submitted that a safety rail must have been erected if the Campaspe waste transfer station had been constructed in accordance with the Guide; and he argued that the risk of the respondent suffering injury would not have been reduced in those circumstances. In that connection, the requirement for an infill was relevant, he argued, because it meant that an object such as a television set could not have been slid in under the rail.
The submission, in our view, failed to grapple with an important piece of evidence. It will be recalled that Mr Lightfoot agreed that if the top of the bin was at the same level as the depositing platform, a safety rail at 1 metre would have been required. At the Campaspe waste station, however, the top of the bin was 1.2 metres, not 1 metre, above the ramp. The jury was entitled to regard that fact as a matter of considerable relevance.
The circumstance facing the respondent was that the Shire, by the notices placed at the entrance to the waste facility, required him to place all permissible waste in the bin. To not do so placed him at the risk of being fined. A television set was not one of the items stated by the notices to be prohibited waste. The bin which the Shire provided to the respondent was 1.2 metres (or 3.93 feet) in height above the level of the ramp upon which the respondent would stand. He was 1.67 metres (5 feet 6 inches) in height. Accordingly, he was required to lift the television set to chest height, to enable it to be dropped into the bin. The dropping of the television set into the bin from a height of more than 1.2 metres enabled the electric cord to whip up and strike him in the eye.
The jury was not obliged to conclude, had the waste transfer station been constructed in accordance with the recommendations contained in the Guide or in accordance with the construction method used at other transfer stations about which Mr Lightfoot gave evidence, that the foreseeable risk of injury to the respondent would not have been avoided or reduced. To the contrary, and accepting that because of the required infill an object must have been dropped into the bin over a rail at 1 metre above ground level, the jury was entitled to find that the risk of an electric cord (or a plug attached to a cord) striking the respondent’s eye would have been much reduced had the respondent dropped his television set over such a rail rather than into a bin the side of which was 1.2 metres in height; likewise, that the force of any contact which did occur would have been much less. The extra one fifth of a metre (or 8 inches) may well, in the jury’s view, have been seen as being critical in causing the injury which occurred to a person of the height of the respondent.
Gleeson CJ said this in Swain v Waverley Municipal Council:[4]
Where an action for damages for negligence is tried before a jury, the question whether the conduct of the defendant has been negligent, that is, whether it has departed from what reasonableness requires, is presented as a question of fact for the jury. The jury's decision will ordinarily involve both a resolution of disputed questions of primary fact, and an application, to the facts as found, of the test of reasonableness. Depending upon the nature of the case, and the findings of primary fact, the application of the test of reasonableness might be straightforward, or it might involve a matter of judgment upon which minds may differ. Either way, it is a jury question.
In this case, there was virtually no dispute as to the facts. The respondent, through the evidence of Mr Lightfoot, not only led evidence of a reasonably practical alternative system of construction of a waste transfer station on a hypothetical basis, but in addition led evidence of such reasonably practical alternative systems in actual use by other municipal councils. It was well within the province of the jury to contrast those systems with the system adopted by the Shire and to assess the advantages or disadvantages of such systems. It was well within the province of the jury to say that had the system operated by other municipal councils been adopted by the Shire, the risk of the injury which was suffered by the respondent would have been avoided, or at least substantially reduced.
[4](2005) 220 CLR 517, 520.
In considering whether the Shire’s failure to construct its transfer station in accordance with recommended practice showed want of reasonable care for users of the facility, in our opinion the jury was also entitled to take into account, inter alia: first, the circumstance that, as a matter of great probability, the facility would be used by persons of different sex, age, height and physical strength; secondly, the fact that the set-up adopted by the Shire exposed users to risk of injury to a vulnerable part of the body - the face; thirdly, the fact that the alternative construction method involved no obvious difficulty or great expense. Further, in our opinion, the jury was entitled to conclude that the Shire’s failure to construct the station in accordance with recommended practice was not irrelevant in the present case only because, let it be assumed, such practice was not directed to prevention of an accident such as here occurred. Further again, in light of the respondent’s evidence that he had not undertaken a task such as this on a previous occasion, and that he was not shown to have understood the physics of the situation as they were put to Mr Lightfoot (but not to him[5]), the jury was entitled to conclude that the Shire was not relieved of an obligation to address a reasonably foreseeable risk of injury by reason of the respondent’s ‘common sense and experience’.
[5]Indeed, counsel for the Shire asked the witness to agree - and he did - that it was not apparent to him that there was any danger at all associated with the task.
For completeness, we should add this. In our view the jury was also entitled to conclude that the increased risk of injury attributable to the Shire’s failure to construct the facility in accordance with recommended practice (and practice elsewhere adopted) in fact manifested itself, in this case, in injury to the respondent – that is, that the Shire’s want of reasonable care was in fact causative of the respondent’s injury.
In the event, we consider that it was reasonably open to a jury to find for the respondent. The verdict of the jury was not against the weight of the evidence. The appeal should be dismissed.
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