Coatz v Westcourt Ltd - [2003] WASCA 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: COATZ -v- WESTCOURT LTD [2003] WASCA 49

CORAM: MURRAY J
ANDERSON J
STEYTLER J

HEARD: 13 FEBRUARY 2003

DELIVERED : 21 MARCH 2003

FILE NO/S: FUL 83 of 2002

BETWEEN: KENNETH ARTHUR COATZ
Appellant (Plaintiff)
AND
WESTCOURT LTD
Respondent (Defendant)

Catchwords:

Negligence - Dangerous premises - Proof of negligence - Occupier of building site - Rubbish collector engaged to clean up site - Foot caught in buried mesh - Liability of occupier

Legislation:

Occupiers' Liability Act 1985 (WA), s 5

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant (Plaintiff) : Mr B G Bradley
Respondent (Defendant) : Mr G R Hancy

Solicitors:

Appellant (Plaintiff) : Bradley & Bayly
Respondent (Defendant) : Godfrey Virtue & Co

Case(s) referred to in judgment(s):

Hollis v Vabu Pty Ltd (2001) 207 CLR 21
Jones v Bartlett (2000) 205 CLR 166
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Wyong Shire Council v Shirt (1980) 146 CLR 40. , ,

Case(s) also cited:

Calder v Boyne Smelters Limited [1991] 1 Qd R 325
Carlson v King (1947) 64 WN(NSW) 65
Cohen v Ninkovic [2000] WASCA 169
Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167
Gamser v Nominal Defendant (1977) 136 CLR 145
Giorginis v Kastrati (1988) 49 SASR 371
Graham Barclay Dysters Pty Ltd v Ryan [2002] HCA 54
JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237
Lloyd v Faraone [1989] WAR 154
Pettitt v Dunkley (1971) 1 NSWLR 376
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
Stojkovski v Fitzgerald [1989] WAR 328
Watts v Rake (1960) 108 CLR 158
Wilson v Peisley (1975) 50 ALJR 207

MURRAY J: I have read in draft the reasons for decision to be published by Anderson J. I regret that I have come to a different conclusion from that reached by his Honour. In my opinion the appeal should be allowed.
As Anderson J has said, the case turned on the appellant's allegation that the respondent was negligent in that it, or its servants or agents for which it was vicariously liable, "caused or permitted pieces of mesh to become buried and concealed in sand at [the building site], thereby creating a hazard." The claim was put alternatively on the ground of a breach of the statutory duty imposed upon the respondent as an occupier of the site within the meaning of the Occupiers' Liability Act 1985 (WA) s 5. The trial Judge thought the content of that duty was the same as that imposed on the respondent in respect of negligence at common law. His Honour therefore found it convenient to deal with the matter within the framework of the pleaded particulars of negligence. No attention was given to this aspect of the case on the appeal and I would propose to say no more about it (cfJones v Bartlett (2000) 205 CLR 166).
As I read the judgment of the trial Judge, his Honour concluded that the respondent owed the appellant a duty of care as the occupier of the building site not to unreasonably expose the appellant to a risk of injury in the course of his presence on the site doing the cleaning work for which, as an independent contractor, he had been engaged. The respondent and those in respect of whose conduct it was vicariously liable were obliged to take reasonable care that they did not create or permit a foreseeable risk of harm to the class of persons (entrants onto the site) which included the appellant. The risk would be regarded as foreseeable if not fanciful or farfetched: Wyong Shire Council v Shirt (1980) 146 CLR 40, per Mason J at 48. The trial Judge found that the wire mesh which caused the appellant's injury was "hidden", "buried by sand", and his Honour concluded that it was reasonably foreseeable that such a thing would occur given that the site, so far as it was cleared of vegetation, comprised loose sand.
The question then was whether that occurred as a result of some conduct or omission of the respondent or some person for whose behaviour the respondent was vicariously liable, whether as an employee, independent contractor, or in some other way because the person was on the site for a purpose connected with the respondent's building activities: Hollis v Vabu Pty Ltd (2001) 207 CLR 21. Again the trial Judge so found. The evidence, particularly that of the respondent's building supervisor, a Mr Tyler, was that mesh of the type in question was used to reinforce a concrete floor slab, not, as it appears it was otherwise thought might be the case, for the reinforcement of a swimming pool or a concrete driveway. As such it appears there was evidence to justify the conclusion that it was probably the case that the mesh was left over from the respondent's building operations on the site, as the trial Judge found to be the case. Indeed, his Honour said the respondent accepted this at the trial and it raises no contention about this finding on the appeal.
The question upon which the case turned, in the judgment of his Honour the trial Judge, was whether there was a breach of the duty of care, a failure to take reasonable care to preserve the appellant from harm of the kind which occurred. The trial Judge considered that reasonable steps had been taken. His Honour accepted the evidence of Mr Tyler in that regard. He noted that the system was that rubbish should be located in defined areas in piles. Although there were other such piles and although his Honour found that the site was untidy and rubbish had been strewn over the area generally, his Honour said the mesh was in an area where there was other building rubbish. As his Honour put it:
"It was obvious that a pile had accumulated where the mesh rod and frame were, and almost inevitable that objects such as mesh would become partly or wholly submerged in the sand. It is not obvious what else [the respondent] could do to remove such items except engage such a contractor as the plaintiff."
Of course, it is true that it was the appellant's job to remove rubbish from the site. In the area where he became entangled in the mesh and fell awkwardly he could not get access by the bobcat and so the rubbish had to be removed from that particular area by hand. It ought reasonably to have been anticipated that the appellant would be exposed to the risk in that way. While the nature of the risk was no doubt evident to the appellant there seems to have been nothing he could do, while exercising reasonable care for his own safety, to preserve himself from harm. It was not in those circumstances, in my opinion, a reasonable response for the respondent to merely rely upon the appellant to avoid the danger: cfRomeo v Conservation Commission (NT) (1998) 192 CLR 431.
Once hidden in the sand, the mesh became a snare and the danger was exacerbated by the fact that it was in a place where rubbish had been allowed to accumulate and where it was reasonably to be anticipated that the appellant would go in the course of the clean-up operation and, to avoid damaging the bush on the property, would reasonably go on foot, thereby exposing himself to the danger. While the respondent had a system to deal with rubbish, it was limited to encouraging those working on the site to deposit their rubbish in defined areas. There was no system to prevent items of rubbish becoming buried in the sand, which was described in evidence as being "very loose".
His Honour thought it was difficult to see what more might reasonably have been done, but the appellant suggested, and there was evidence to support the suggestions, that on some building sites the rubbish would be piled on a hardstanding area where it would be readily visible. If that was not possible (and I accept that such an area would have to be artificially created, at least temporarily, on this site) then in some cases kibbles, open bins in which rubbish could be placed so that it could later be taken away, were used. It does not seem to have been suggested that, having regard to the magnitude of the risk and the probability that rubbish of this kind would become buried on a site such as this, the expense, difficulty and inconvenience of taking such measures precluded the respondent from implementing them. There was nothing, in other words, to suggest that it would be to impose an unreasonable burden on the respondent to require such measures to be taken to avoid the risk inherent in buried rubbish and building materials such as wire mesh.
For those reasons in my opinion the appeal should be allowed and the judgment of the trial Judge set aside.
The respondent pleaded that the appellant was guilty of contributory negligence. It was pleaded that he failed to have sufficient care for his own safety in that he ought to have appreciated what was described as an obvious danger in the cleaning of the site. It was alleged that the appellant "should have had the obvious commonsense to find an alternative safe method in removing the mesh." It was contended that in view of his experience he should have "carried out his work differently to avoid any danger."
In view of his Honour's finding about liability, the trial Judge made no specific finding on the question of contributory negligence, but the relevant facts were found and I have described them generally. There is nothing to suggest that the trial Judge considered that it was unreasonable for the appellant to have proceeded to remove the rubbish from the area in question on foot because he could not get access with the bobcat without damaging the native vegetation which had been allowed to remain on the site, to the extent that it did not have to be cleared for building purposes.
Nor is there anything to suggest what alternative means of clearing rubbish from the site could have been used if it was not possible to use the

bobcat. It appears that Mr Tyler's evidence was restricted to the suggestion that it should have been possible to use that machine, but, as I have said, the trial Judge accepted that this was not possible without damaging the bush and his Honour does not seem to have thought that the appellant's reaction to proceed in the way that he did was unreasonable. I would respectfully agree. It seems to me that on the evidence and the view of the facts accepted by the trial Judge the allegation of contributory negligence was not made out.

His Honour provisionally assessed the damages to which, had his view about liability been different, the appellant would have been entitled, in the sum of $108,216.40. The appeal as originally brought contained grounds which challenged the adequacy of that provisional assessment. Those grounds were abandoned on the hearing of the appeal and we were told that if it became relevant the parties had agreed the quantum of damages in the sum of $137,000. I would enter judgment for the appellant in that amount.
ANDERSON J: This is an appeal from a judgment delivered in the District Court (H H Jackson DCJ) in April 2003 dismissing the appellant's claim for damages for personal injuries.
The respondent is a builder and at the material time it was engaged in constructing a substantial residence in Cessna Drive, Jandakot. As is to be expected a good deal of waste material was generated as the work went on. The respondent had a system for confining and collecting and removing this material but nevertheless there was evidence that from time to time the site became very untidy. For the most part however, waste material would be placed in piles and periodically removed from the site.
The appellant was one of the contractors who was engaged to clean up the site and take rubbish away. He carried on business as a bobcat operator under the style of Thompson's Lake Bobcat and Truck Hire and was often engaged in cleaning up building sites for builders including the respondent. Other work which he did included preparing sites for laying down driveways and general levelling and smoothing out.
According to the appellant when he was engaged to "do a site clean" his task would involve "going to the site, picking up the rubbish, which is usually in a pile or two piles, putting it onto a truck, levelling the site and cutting the carport and driveway to minus 1". The appellant was sometimes accompanied by his girlfriend, Ms White, who worked as his offsider.

The appellant's involvement with the site in question started in about June or July 1999 when he was asked to do a "first site clean" which he did, clearing away all the debris, rubbish and builder's waste which he and Ms White could find, leaving the site "spotless" to use his word. He was later engaged to go back to the site for a second time to prepare it for the laying of brick paving and for the laying of concrete flooring in the garages. This involved the use of his bobcat and also required him to do some clearing away of waste material. The date of this second visit to the site was not established in evidence and does not matter. He went to the site on a third occasion on the day of the accident, 23 November 1999. He did so pursuant to an arrangement which was quite informal. His evidence was that he and Ms White were sitting in his truck at another site when he received a call on his mobile telephone from the respondent's building supervisor, Mr Tyler who said:
"Ken, I've got an urgent job, could you – that one at Cessna Drive. Could you go and give it a final clean?"
Although he did not say so in evidence it is to be inferred that the appellant accepted this offer because he went to the site later that afternoon with Ms White, taking his bobcat and tip truck. There was evidence that there were several piles of builder's rubbish at the site and that a lot of lighter rubbish such as paper bags and cardboard boxes had been blown about and was scattered across the lot. He and Ms White set about loading the piles of material onto his tip truck using the bobcat for the purpose. The appellant took a full load to the municipal rubbish tip while Ms White remained behind gathering up litter. On his return from the rubbish tip the appellant approached a pile of rubbish which included a section of mesh about 2 metres square. There was evidence that the grid of this mesh was about 6 inches square. The evidence was that the mesh was on a pile comprising other discarded articles such as (according to a statutory declaration made by the appellant on 10 December 1999 and tendered as exhibit 4) "brick strapping, plastic, corrugated iron sheets, reinforcing steel rod and a large window frame". There was evidence that the pile was approximately 2 feet high and spread over about 2 metres. According to the appellant he observed the mesh lying with the other materials and attempted to pick it up in order to fold it so that it would fit in the bucket of his bobcat. He gave evidence was that as he was pulling on the mesh "… I couldn't go anywhere. My feet – I felt my foot get caught – me right foot and as I went to go like this – the other foot – and I just twisted around and fell on the door frame that was there".
His evidence was that he discovered that one or other or both his feet had become entangled in what he described as "another piece of mesh that was buried. I didn't see it."
That his feet could become entangled in mesh which was "buried" is explained, perhaps, by evidence that the ground conditions at the site were very sandy. The appellant's evidence was that he had earlier walked near or past or towards this particular pile of rubbish "probably five or six times at least" and had not seen the section of mesh in which his foot or feet had become entangled. His partner, Ms White, gave evidence that she did not see the offending piece of mesh until after the accident.
What emerges from the evidence is that this was an untidy building site but that nevertheless builder's rubble and waste materials and damaged building components were accumulated in identifiable piles and cleared away from the site from time to time. It is not in controversy that the section of mesh which had become buried was a leftover from the respondent's construction activities. The respondent's building supervisor, Mr Tyler, gave evidence that mesh of that kind was used as re‑enforcement in the floor slab and that it must therefore have been on the site since the earlier stages of the work, that is, probably since before the first site cleanup when the appellant had left the site "spotless".
The appellant's case against the respondent was pleaded in par 4 of the statement of claim as follows:
"4.The plaintiff's fall, pain and injury as pleaded aforesaid were caused by the negligence of the defendant, its servants or agents.
Particulars of Negligence
The defendant , its servants and agents were negligent in that they
(i)failed to adequately supervise the site to ensure that all rubbish and debris was placed in a single pile and not strewn across the site
(ii)allowed debris to be strewn across the site
(iii)failed to advise subcontractors to leave their rubbish in one pile
(iv)caused or permitted pieces of mesh to become buried and concealed in sand at the site thereby creating a hazard."
The appellant failed to obtain a finding that failure to ensure that all rubbish was placed in a single pile was unreasonable or that it exposed contractors on the site such as the appellant to unreasonable risk of injury. There was indeed no such evidence. Insofar as the case was based upon particulars (i) and (iii), it failed.
The appellant also failed to obtain a finding that allowing "debris to be strewn across the site" exposed contractors such as the appellant to unreasonable risk of injury. There was no evidence that mesh of the kind in which the appellant caught his feet was "strewn across the site". The material which was strewn across the site was paper bags, cardboard boxes and litter blown by the wind. There was no evidence that this caused or contributed to the appellant's injury. Therefore, in order for his case to succeed, the appellant had to make good the allegation in item (iv) of the particulars. He had to prove firstly that the respondent "caused" or "permitted" the mesh to "become buried and concealed in sand at the site" and secondly, that in so doing the respondent was in breach of its duty of care to the appellant.
There was no evidence, direct or indirect, that the respondent caused the mesh to become buried. There was a complete absence of evidence as to how the section of mesh came to be where it was.
As to whether the respondent "permitted" the mesh to become concealed in the sand, this called for proof at least that the appellant failed to take some precaution which it was reasonable to take in order to prevent the mesh becoming buried as it was. There was some rather vague evidence that at other building sites it was usual to have kibbles or waste bins into which builder's waste could be thrown. But there was no evidence which could lead his Honour to the conclusion that it was negligent not to provide such receptacles. There was no evidence that using kibbles was an effective safety measure nor that it was a generally accepted practice in the building industry in order to make a building site safe for contractors who might be called in to clean it up. Indeed, if waste bins were used under a strict regime which required all waste material to be placed in them, the appellant's site clean up services would not be required at all. There was no other evidence on the question of proper or usual precautions or to the effect that the appellant had failed to ensure that proper or usual precautions were taken. Nor was there any evidence as to what reasonable steps were available to avoid waste material and cast off objects becoming buried in the light sand comprising this site.

It is trite that what is or is not reasonable in the context of negligence cases is to be judged in the light of all the circumstances including the degree of risk of harm to the appellant if the precaution is not taken, the seriousness of the harm should it occur and the cost and inconvenience involved in the measures that should have been taken. As Mason J said in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 ‑ 48:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
In this case there was simply no evidence upon which the trial Judge could act in coming to any confident conclusion that there was negligence on the part of the respondent. In some cases the degree and magnitude of risk together with the measures that are available to avoid the risk readily suggest themselves to the Court and experience of life may be sufficient to enable the Court to make a judgment about the reasonableness involved in the taking of precautionary measures. I do not think this is such a case. This was a large construction job and a large construction site involving many different trades. There was evidence from Mr Tyler to the effect that considerable efforts were made to keep the site tidy. Rubbish piles were established and workmen and contractors were strongly encouraged to place their waste material on the rubbish piles. If they were found not doing so they were followed up and instructed to do so. There was no evidence upon which the Judge could base an inference that the system put in place by the respondent was inadequate or that the measures taken to enforce the system were less than they should have been.

The more fundamental defect in the appellant's case is that there was no evidence at all as to how this piece of mesh came to be where it was and came to be covered by sand. There was no evidence that it was placed there by someone for whose negligent acts the respondent should be held vicariously liable. There was no evidence that the respondent knew or ought to have known that it was there. There is no evidence save for the accident itself, which enabled the trial Judge to make a judgment about the magnitude of the risk of injury to persons such as the appellant. On the face of it a section of flat re‑enforcing mesh buried in sand would not present so serious a risk of injury as to call for the taking of special precautions.
The relevant findings of the trial Judge in par 75 and par 76 of his judgment are as follows:
"75.The [respondent] took reasonable steps to keep building and site rubbish within the building envelope, and this event occurred there. Both parties accept that that was an attempt to keep rubbish in specific piles but also that light papers would blow away over the site. There is no particular evidence of how the hidden mesh came to be where it was, but clearly, it was in an area in which there was other building rubbish… It is not apparent that the [respondent] failed to take reasonably available steps to prevent it. The [respondent] did have a system to deal with rubbish.
76.The most it can be said from the [appellant's] perspective is that the [respondent] should have done more to restrict the various rubbish to one or two strictly defined piles. There is no evidence as to exactly how much more it should have done in that regard. It was obvious that a pile had accumulated where the mesh rods and frame were, and almost inevitable that objects such as mesh would become partly or wholly submerged in the sand. It is not obvious what else it could do to remove such items except engage such a contractor as the [appellant]."
In my opinion these findings were open and the appeal must be dismissed.
STEYTLER J: I have had the considerable advantage of reading the reasons for decision to be published by Murray J and Anderson J. It is

consequently unnecessary for me to restate the facts and issues, save insofar as is necessary to explain the conclusion at which I have arrived.

The trial Judge made a number of findings which are material to the appeal.
He found, firstly, that the respondent building company occupied and controlled the building site at which the appellant was injured and that it owed to the plaintiff, who it had invited to come onto the site for the purpose of cleaning it, "the general duty of care expressed in the tort of negligence as replicated in the Occupiers Liability Act [1985]". That duty, relevantly, was one to take such care as in all the circumstances of the case was reasonable to see that the appellant would not suffer injury or damage by reason of any dangers which were due to the state of the premises or to anything done or omitted to be done on the premises and for which the respondent was, by law, responsible (s 5(1) of the Act).
Next, the trial Judge found that the appellant's evidence was truthful. He accepted the facts as given in evidence by him and by his partner, Ms V White.
The appellant's evidence was that he did three "site cleans" at the respondent's building site. The first was done in July 1999. The site was "very messy" with "rubbish everywhere". The rubbish was not collected into one or two piles, as was ordinarily done. On the second visit, the site resembled "a pigsty". The appellant then removed light rubbish, such as cardboard boxes and pieces of plasterboard. In November 1999 the appellant was asked to do a third and "final clean" of the site. He went there with Ms White. There was a pile of rubbish at one point, but light bags, concrete bags and cardboard boxes were everywhere. There was no "orderly" pile of rubbish. The appellant's bobcat could not get access to the area without damaging either the kerbing of the new driveway or the bushland near the house, with the consequence that the appellant and Ms White were required to walk through bush to put the rubbish in the bucket of the bobcat. While pulling at a piece of mesh, the appellant's feet became entangled in another, concealed, piece of mesh, resulting in a severe injury to his right knee. The second piece of mesh was concealed because it had become buried in soft sand. The respondent's building supervisor, Mr W L Tyler, described the soil at the site as "very sandy" and Mr D M Willshee, the site owner, said that the sand was so loose "[y]ou could sink in well deeper than your feet". When the appellant rang Mr Tyler to tell him of his injury and of the state of the building site, Mr Tyler said words to the effect that the site had "got away from him" and that it "had been going on for a while".
Ms White said that the site was generally very untidy and that rubbish was placed in numerous inaccessible locations. She did not see the mesh in which the appellant's feet had become entangled, although she had walked across the area and seen the other mesh lying in the sand.
The mesh, which was of a kind used in the construction of the house, had most probably been left over from building operations on the site, although, according to Mr Tyler, it should have been removed on one of the earlier site cleans.
Notwithstanding these findings, the trial Judge found that the respondent had not breached the duty of care owed by it, as occupier of the site, to the appellant. He said, in this respect:
"75The defendant took reasonable steps to keep building and site rubbish within the building envelope, and this event occurred there. Both parties accept that that [sic] was an attempt to keep rubbish in specific piles but also that light papers would blow away over the site. There is no particular evidence of how the hidden mesh came to be where it was, but clearly, it was in an area in which there was other building rubbish. Whilst it was foreseeable to the defendant that such rubbish may become buried by sand, it was equally foreseeable to the plaintiff. More importantly, however, it is not apparent that the defendant failed to take reasonably available steps to prevent it. The defendant did have a system to deal with rubbish.
76The most that can be said from the plaintiff's perspective is that the defendant should have done more to restrict the various rubbish to one or two strictly defined piles. There is no evidence as to exactly how much more it should have done in that regard. It was obvious that a pile had accumulated where the mesh rods and frame were, and almost inevitable that objects such as mesh would become partly or wholly submerged in the sand. It is not obvious what else it could do to remove such items except engage such a contractor as the plaintiff.
77I am not satisfied that it was negligent in what it did. Realistically, a building site inevitably involves such materials and hazards and, notwithstanding designated areas and regular cleanups, it must be inevitable that some items will be dropped or left elsewhere or become hidden or covered."
With due respect, I am unable to accept that it was open to the trial Judge to conclude that negligence on the part of the respondent had not been made out, given his findings of fact.
There had been no sufficient attempt by the respondent to keep rubbish in specific piles. I have said that the trial Judge accepted the appellant's evidence, which was to the effect that, on his first visit, the rubbish was not collected into one or two piles, on his second visit the site resembled "a pigsty" and on his third visit there was rubbish everywhere, with no "orderly" pile of rubbish. I have also said that Mr Tyler himself conceded that the site had "got away from him" and that "this had been going on for a while". While it is true that there was no particular evidence of how the hidden mesh came to be where it was, the most probable inference, given the evidence and the findings to which I have referred, is that it had been left there during the building operations and had been allowed to sink into the soft sand, where it could not be seen. That could not have happened if it had been placed on top of other rubbish collected together in an orderly pile.
It was, as the trial Judge found, foreseeable to the respondent that rubbish of that kind, if left loose on the soft sand, would become buried. Indeed, the trial Judge found that this was "almost inevitable". It was also reasonably foreseeable by the respondent that someone working in the area, such as the appellant, might sink a little way into the sand and have his or her feet caught in the mesh, thereby risking injury. In those circumstances, applying what was said by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 ‑ 48, the tribunal of fact was required to determine what a reasonable person would do by way of response to the risk. In my opinion, such a person would have ensured that this kind of rubbish was not left loose in soft sand. The risk of it sinking and becoming a concealed hazard was very real. That risk could readily have been avoided by the respondent. However, the steps taken by the respondent were clearly inadequate for that purpose. It is quite plain that the rubbish had for some time, been allowed to accumulate in a random way around such piles as there were. It would have been a simple matter for the respondent to prevent that from happening merely by directing and ensuring that rubbish be properly accumulated in orderly piles and that material (such as wire mesh) which was likely to sink into the soft sand should be placed above other material. The respondent should not have let the site "get away" from it in the manner admitted by Mr Tyler.
It consequently seems to me that the appellant made good his plea, in par 4(iv) of his amended statement of claim, that the respondent negligently permitted a piece of mesh "to become buried and concealed in sand at the site thereby creating a hazard".
While it may also be true that, as the trial Judge found, the appellant might have foreseen that some rubbish might become buried, he could not know where it might have been buried or what kind of rubbish it might be. In my opinion, it is unreasonable to expect him to have been able to protect himself against a concealed hazard of the kind encountered by him.
In all of the circumstances it seems to me that the appeal should be allowed and the judgment of the trial Judge set aside. As has been mentioned by Murray J, the parties have agreed the quantum of damages in the sum of $137,000. I agree with Murray J, for the reasons which he has given, that no contributory negligence on the part of the appellant has been made out. I would consequently enter judgment in his favour for the sum of $137,000.