Doktor v Hawkins

[1992] QCA 343

IN THE COURT OF APPEAL

[1992] QCA 343

QUEENSLAND

Appeal No. 20 of 1992

BETWEEN:

ISTVAN DOKTOR

(Plaintiff) Appellant

- and -

CHARLES HAWKINS

(First Defendant) Respondent

- and -

VERA HAWKINS

(Second Defendant) Respondent

The President
Mr Justice Pincus
Mr Justice McPherson

Judgment of the Court delivered on the twelfth day of October, 1992

APPEAL ALLOWED.
JUDGMENT BELOW SET ASIDE AND, IN LIEU, JUDGMENT IS
GIVEN FOR THE APPELLANT IN THE SUM OF $69,343.23 WITH
COSTS, INCLUDING RESERVED COSTS, OF THE PROCEEDINGS IN
THE TRIAL DIVISION AND THE APPEAL TO BE TAXED.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 20 of 1992

Before the Court of Appeal

The President
Mr. Justice Pincus
Mr. Justice McPherson

BETWEEN:

ISTVAN DOKTOR

(Plaintiff) Appellant

- and -

CHARLES HAWKINS

(First Defendant) Respondent

- and -

VERA HAWKINS

(Second Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the twelfth day of October 1992

MINUTE OF ORDER:	Appeal allowed. Judgment below set aside and, in lieu, judgment is given for the appellant in the sum of $69,343.23 with costs, including reserved costs, of the proceedings in the Trial Division and the appeal to be taxed.
CATCHWORDS:	Negligence. Reasonable foreseeabililty of damage. Appeal from dismissal of claim for injuries sustained by applicant/labourer whilst moving 50kg bags - whether trial judge correctly concluded that causing a heavy object to drop onto an inherently unstable platform involved no foreseeable risk of injury.
Counsel:	Mr R. Stenson for the appellant Mr R. Stewart for the respondent
Solicitors:	Messrs. Pescott Reaston for the appellant Messrs. Quinlan Miller and Treston as t/a/ for Messrs. MacDonnells for the respondents

Hearing date: 5th October, 1992
IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 20 of 1992

BETWEEN:

ISTVAN DOKTOR

(Plaintiff) Appellant

- and -

CHARLES HAWKINS

(First Defendant) Respondent

- and -

VERA HAWKINS

(Second Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the twelfth day of October 1992

The appellant has appealed against the dismissal of his claim for damages for injuries which he sustained in the course of his employment on 6th September 1982. A judge of the Trial Division assessed the sum of $69,343.23 for the injuries which the appellant sustained, but found that the respondent - employers were not liable because, in his Honour's view, there was no negligence or breach of statutory duty.

The appellant was employed as a labourer to assist the
male respondent in moving bags of borax, each weighing about
50 kilograms, out of a shed for dumping in a nearby gully.
The bags were hardened and misshapen through exposure to
weather. There was a landing attached to the shed and the
bags were first dragged onto the landing by the male
respondent and then pushed by him onto a wheelbarrow held by
the appellant which he used to cart the bags to the gully.
The landing was about 1.2 metres high, and the front of the
wheelbarrow was positioned under the landing so that as a
bag was pushed from the landing it landed in the
wheelbarrow, perhaps half a metre to a metre below.

According to the male respondent, one of the odd shaped bags of borax landed towards one side of the wheelbarrow, causing it to roll sideways, striking the appellant on the leg and throwing him sideways. There was a dispute between the appellant and the male respondent, but the primary judge accepted the evidence of the male respondent that the appellant toppled but did not fall over and managed to control the wheelbarrow.

The appellant continued with his work but it is not disputed that his injuries were sustained in the incident. The primary judge found that there was not a foreseeable risk of injury to the appellant but that, even if there was, the risk was so small and there was no reasonably practicable way of minimising or eliminating it that "a reasonable man would not have refrained from participating in that operation or setting it up or have adopted an alternative approach". His Honour said:

"The other alternatives discussed by Mr McDonald in his evidence and his reports all involve some risk, including two men lifting each bag from the landing down into the barrow, which was to my mind the most attractive of those alternatives. In the end, and having carefully considered the evidence, I am not satisfied that there was any alternative method available which would have minimised or eliminated any small risk of injury which was involved in dropping the bag into the barrow with the plaintiff there steadying it with the handles and the legs on the ground."

With due deference to the advantages possessed by the Trial Judge, we are unable to agree. Causing a heavy, hard, irregularly shaped object to drop onto an inherently unstable platform such as a wheelbarrow which was prone to tilt and roll in one direction or another depending upon where the object struck does involve a foreseeable risk of injury. Indeed, the very need for human intervention to attempt to stabilise the wheelbarrow by counteracting the forces resulting from the impact of the object bears that out. Nor is it correct to describe the risk of injury as small, particularly where there are a number of objects dealt with in that manner.

Finally, we do not think it is correct that there was no reasonably practicable way of minimising or eliminating the risk which existed. The height of the landing was such that it would have been feasible for two men to lift each of the bags from the landing and place it in the wheelbarrow and, in any event, there was no suggestion that the bags could not have been pushed from the landing onto the ground and then lifted into the wheelbarrow although that may have been more laborious and less convenient. It should be mentioned that the reasons as published contain an admittedly erroneous statement of the height of the landing, but it is unnecessary to consider whether that had some impact upon the judge's view of the matter or whether it was, on the other hand, a misprint.

It is unnecessary to pursue these matters at any greater length. There was a foreseeable, significant risk, which could and should have been avoided, in the course which was adopted which led to the appellant's injuries. In the circumstances he is entitled to recover the damages assessed for the injuries which he sustained.

The appeal is allowed and the judgment below set aside and, in lieu, judgment is given for the appellant in the sum of $69,343.23 with costs, including reserved costs, of the proceedings in the Trial Division and the appeal to be taxed.