Edith Cowan University v Czatryko
[2002] WASCA 334
•9 DECEMBER 2002
EDITH COWAN UNIVERSITY -v- CZATRYKO [2002] WASCA 334
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 334 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:126/2001 | 18 JUNE 2002 | |
| Coram: | WALLWORK J MURRAY J TEMPLEMAN J | 9/12/02 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | EDITH COWAN UNIVERSITY BRETT GEORGE JERZY CZATRYKO |
Catchwords: | Negligence Personal injuries Worker loading truck fell off Stepped back thinking hoist was raised Hoist was being lowered No breach of duty of care to fail to warn worker |
Legislation: | Occupational Safety and Health Act 1984 (WA), s 19 Occupiers Liability Act 1985 (WA), s 5 |
Case References: | Chappel v Hart (1998) 195 CLR 232 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Rosenberg v Percival (2001) 205 CLR 434 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Bankstown Foundry Pty Ltd v Braistina (1986) A Tort Rep 80-713 Bowen v Tutte (1990) A Tort Rep 81-043 Clark v Ryan (1960) 103 CLR 486 Commissioner of Railways v Ruprecht (1979) 142 CLR 563 Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989 Mason v Williams & Williams Ltd & Anor (1955) 1 All ER 808 McLean v Tedman (1984) 155 CLR 306 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Nair v Health Administration Corporation & Anor (1994) A Tort Rep 81312 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 Rae v Broken Hill Pty Co Ltd (1957) 97 CLR 419 Raimondo v State of South Australia (1979) 23 ALR 513 Sungravure Pty Ltd v Meanie (1964) 110 CLR 24 Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65 Thomas v O'Shea (1989) A Tort Rep 81-251 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 Wade v Allsopp (1976) 10 ALR 353 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : EDITH COWAN UNIVERSITY -v- CZATRYKO [2002] WASCA 334 CORAM : WALLWORK J
- MURRAY J
TEMPLEMAN J
- Appellant
AND
BRETT GEORGE JERZY CZATRYKO
Respondent
Catchwords:
Negligence - Personal injuries - Worker loading truck fell off - Stepped back thinking hoist was raised - Hoist was being lowered - No breach of duty of care to fail to warn worker
Legislation:
Occupational Safety and Health Act 1984 (WA), s 19
Occupiers' Liability Act 1985 (WA), s 5
(Page 2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Ms B A Mangan
Respondent : Mr B G Bradley
Solicitors:
Appellant : Phillips Fox
Respondent : Leonard Cohen & Co
Case(s) referred to in judgment(s):
Chappel v Hart (1998) 195 CLR 232
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
Rosenberg v Percival (2001) 205 CLR 434
Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483
Case(s) also cited:
Bankstown Foundry Pty Ltd v Braistina (1986) A Tort Rep 80-713
Bowen v Tutte (1990) A Tort Rep 81-043
Clark v Ryan (1960) 103 CLR 486
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Electric Power Transmission Pty Ltd v Orgaz, unreported; FCt SCt of WA; Library No 7914; 3 November 1989
Mason v Williams & Williams Ltd & Anor (1955) 1 All ER 808
McLean v Tedman (1984) 155 CLR 306
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nair v Health Administration Corporation & Anor (1994) A Tort Rep 81312
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
(Page 3)
Rae v Broken Hill Pty Co Ltd (1957) 97 CLR 419
Raimondo v State of South Australia (1979) 23 ALR 513
Sungravure Pty Ltd v Meanie (1964) 110 CLR 24
Ta v Lucky Import & Export Co Pty Ltd [2002] WASCA 65
Thomas v O'Shea (1989) A Tort Rep 81-251
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wade v Allsopp (1976) 10 ALR 353
Wyong Shire Council v Shirt (1980) 146 CLR 40
(Page 4)
1 WALLWORK J: I agree with the reasons for judgment of Murray J and to the orders proposed by his Honour.
2 There is nothing I wish to add.
3 MURRAY J: The respondent was employed as a general assistant by the appellant. As the title of the position suggests, he could be required to perform a variety of different tasks. On 13 January 1997 he was loading and stacking boxes onto the back of a truck. In the course of that work, he fell to the ground, suffering various physical injuries for which he sued the appellant for damages for negligence.
4 As his case was pleaded, he added alternative claims of breach of statutory duty arising out of the Occupational Safety & Health Act 1984 (WA), s 19 and the Occupiers' Liability Act 1985 (WA), s 5. Section 19(1) of the Occupational Safety & Health Act, so far as material, provides:
"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -
(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;
(b) provide such information, instruction, and training to, and supervision of, his employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards;
(c) consult and co-operate with safety and health representatives, if any, and other employees at his workplace, regarding occupational safety and health at the workplace."
"... reasonably practicable having regard, where the context permits, to -
(Page 5)
- (a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;
(b) the state of knowledge about -
(i) the injury or harm to health referred to in paragraph (a);
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and
(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii)."
6 The Occupiers' Liability Act, s 5, similarly imposes a duty of care upon an occupier of premises, owed to a person entering on the premises, in respect of dangers due both to the state of the premises and to anything done or omitted to be done on the premises for which the occupier is responsible in law and, although various particular considerations are adverted to in the section, it is sufficient, for present purposes, to observe that the duty is to take, "such care as in all the circumstances of the case is reasonable to see that [the entrant] will not suffer injury or damage by reason of any such danger". In particularising this alleged breach of duty, the respondent repeated the pleaded particulars of negligence.
7 I have not sought to ascertain to what extent these alternative pleas were given attention during the trial which was held in the District Court, but I surmise that the content of these duties was not thought to be different as a matter of law or fact from the content of the duty owed at common law by virtue of the law of negligence. These alternative pleas were not referred to at all in the reasons for judgment of the trial Judge or on the argument of the appeal. I propose to pay no regard to them. In passing, I note that there were some issues fought at trial and decided by his Honour the trial Judge which are not the subject of any ground of appeal and, therefore, need not be referred to further.
8 The appellant denied liability and negligence which was pleaded by the respondent to arise by reason of the appellant's failure to provide safe equipment and a safe system of work. The following particulars were given:
(Page 6)
- "1. The [appellant] failed to provide a warning 'beeper' or device, which would have clearly indicated that the mechanical lifting platform was in the process of being lowered;
2. The [appellant] instructed the [respondent] and his assistant to hurry their work in a manner which impliedly ignored safety issues;
3. The [appellant] failed to instruct its employees to create a system whereby the mechanical lifting platform would be operated by one person who would keep any other persons in the vicinity aware of its position at any particular time."
9 To better understand this pleading, it is necessary to have regard to the way in which it was alleged that the accident occurred. It was pleaded that:
"On 13 January 1997 the [respondent] was engaged in work for the [appellant] which involved moving the contents of an office in boxes. Another employee was bringing the boxes on a trolley from the office to the said truck, which was parked on a grassed area outside the building, and the [respondent] was at the time arranging the boxes in the truck. The [respondent] was near the edge of the truck's tray, with his back toward the open end of the truck, when he took a step backwards expecting that a mechanical lifting platform at the rear of the truck would be in place. The [respondent's] employee however had, unbeknown to the [respondent], lowered the platform, and as a consequence, the [respondent] fell about 1 metre, hitting the platform which was almost on the ground and then bouncing off on to the ground."
10 The fellow employee referred to in the pleading was a Mr Fendick. The trial Judge found that Mr Fendick was in the process of lowering the lifting platform when the respondent fell. His Honour found that Fendick had given no indication that he was going to do that and his Honour said that there was an obvious risk of injury if the respondent should fall from the back of the truck. He continued:
"It was also obvious that when the loading of the truck was almost complete, so that there was limited space left on the tray of the truck, the [respondent] would step on to the platform. As
(Page 7)
- the platform could be lowered without any sound, it was foreseeable that the [respondent] would not know that the platform had been lowered and would fall when he stepped where the platform had been. One simple method of avoiding that risk of injury would be to ensure that the [respondent] received a clear warning when the platform was lowered. That warning could have been provided either by having a device which emitted a sound when the platform was being lowered or by having a system whereby the person who lowered the platform informed any person on the tray of the truck that the platform was about to be lowered. I conclude that the [appellant] was in breach of the duty of care that it owed to the [respondent] in failing to have such a device or system and that in consequence the [respondent] fell from the back of the truck and suffered injury."
11 It can be seen that in the end, the case turned on the question of breach of duty. There is no problem in defining the scope of the duty. The risk of the fall was eminently foreseeable although, of course, a plaintiff paying attention to where he was putting his feet would have been perfectly safe. There was no problem with the practicality of the measures suggested, by which the risk of injury could have been averted. They were the process of warning by a beeper or other sound emitting device, or the giving of an oral warning when the lifting platform was to be lowered, particulars of negligence 1 and 3 as pleaded by the respondent.
12 The appellant had pleaded contributory negligence on the part of the respondent, asserting that he was negligent in that he:
"1. failed to look behind himself before stepping backwards.
2. failed to keep any or any proper lookout.
3. was not paying any or any sufficient attention to where he was stepping.
4. failed to exercise reasonable care for his own safety."
- In short, it was said that the respondent was careless in that he failed to look to see that it was safe to step on to the lifting platform before he did so.
13 Although the trial Judge did not expressly so find, it is implicit in what he said about liability that his Honour accepted that the respondent
(Page 8)
- did not look before stepping back off the tray of the truck, as he thought, on to the lifting platform but, as to the question of contributory negligence, his Honour said:
"The [respondent] stepped backwards believing that the lifting platform was still at the same level as the tray of the truck. He believed that because he had not been told that the platform was to be lowered, nor heard any sound to indicate that it was being lowered. In those circumstances I conclude that the [respondent's] conduct in stepping backwards where he believed the platform to be was not a failure to exercise reasonable care for his own safety."
15 In my opinion, this was a case where the proper conclusion about causation was that to which the trial Judge effectively came; the failure to warn would be regarded as a material cause of the respondent's injuries unless, the evidentiary onus (at least) being on the appellant, it was able to persuade the court of trial that the respondent probably would not have heeded a warning in either of the forms suggested: Nagle v Rottnest Island Authority (1993) 177 CLR 423; Chappel v Hart (1998) 195 CLR 232; and Rosenberg v Percival (2001) 205 CLR 434. I would not uphold ground 3.
16 It seems to me that the true issue upon which the case turned was simply whether, in the circumstances, the omission to provide a warning, in either form suggested, that the lifting platform was to be or was being lowered breached the duty of care, or whether this was a case where, as Kirby J said in Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 478 [123]:
"Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just."
(Page 9)
17 In that event, because the obligation of the defendant is to take reasonable care to avoid foreseeable risks of injury, the duty will not be breached by the failure to warn. Of course, one must be careful not to elevate that observation, which was directed to the facts of Romeo, into some form of definitive statement of the law, but the remark was described by Gleeson CJ in Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 at 490 [45] as "fair comment" "as a generalisation". The Court must not lose sight of the fact that, as Gleeson CJ said in Woods at 488 [39], "ultimately, the question of fact is what a reasonable person, in the position of the defendant, would do by way of response to the risk".
18 I have set out the view upon this question to which the trial Judge came. Having gone on to reject the proposition that the respondent was guilty of contributory negligence, his Honour assessed damages, which were also hotly in issue. His Honour gave judgment for the plaintiff in the sum of $379,402 with costs. There are grounds of appeal directed to the questions of contributory negligence and important aspects of the assessment of damages.
19 As to the question of liability, the question of breach of duty, the appellant's arguments are effectively encapsulated in the first two grounds of appeal:
"1. The Learned Trial Judge erred in fact in finding that one simple method of avoiding the risk of injury from falling from the back of the truck would be to ensure that the respondent received a clear warning (a sound device or information from the person who lowered the platform) when the lifting platform was lowered. He erred because:
1.1 the undisputed evidence was that:
1.1.1 the respondent's co-worker Fendick was making regular trips to and from the truck - at 2 to 3 minute intervals,
1.1.2 the lifting platform was being lowered and raised repeatedly, and
1.1.3 most of the time the lifting platform was on the ground.
(Page 10)
- 1.2 a clear warning (a sound device or information from the person who lowered the platform) when the lifting platform was lowered could not have prevented or materially reduced the risk of this accident occurring because in the circumstances the respondent could:
1.2.1 be mistaken or confused by the last sound (lifting sound or lowering sound) that he heard.
1.2.2 never be sufficiently sure about the last sound (lifting sound or lowering sound) that he heard to safely step backwards without looking where he was going first.
1.2.3 not reasonably rely upon information from the person who lowered the platform (and whose job it was to repeatedly raise and lower the platform) that the platform was about to be lowered or was lowered, to simply step backwards without looking where he was going.
1.2.4 never be sufficiently sure about the last information (that the platform was about to be lowered or was lowered) that he was given to safely step backwards without looking where he was going first.
1.2.5 never be sufficiently sure that the platform was fully raised so that he could safely step backwards without looking where he was going first.
1.2.6 never be sufficiently sure that the platform was not loaded up with items so that he could safely step backwards without looking where he was going first.
- 2. The Learned Trial Judge erred in law in finding that the appellant was in breach of the duty of care that it owed to the respondent in failing to have such a device or system because:
(Page 11)
- 2.1 any apparent safety offered by such a system is illusory - for the reasons given in sub-paragraphs 1.2.1 to 1.2.6.
2.2 there was no evidence that the appellant did not engage a reputable and experienced supplier to install the lifting platform on the truck
2.3 there was no evidence that the appellant was in a better position than any other consumer purchasing a truck to make the assessment or judgment that it would be reasonable in the interests of safety, for the lifting platform to have a (sound) warning device when the platform was lowered
2.4 the evidence given by the expert (called by the respondent) was that it was highly unusual for such lifting devices to have a sound warning device."
20 Although the trial Judge briefly reviewed the evidence, it is necessary, I think, to pay some particular regard to the evidence given by both the respondent and Mr Fendick.
21 Little attention appears to have been paid to the nature of the motor vehicle. The witness, Apgar, an engineer called by the respondent to give evidence about the nature of warning devices that might be fitted to the lifting hoist, described the vehicle as a two-axle truck fitted with a van body over the tray of the truck. I take it from that description that the vehicle had sides and a roof over the tray, but at the time in question it seems either to have had no rear door or any such door was out of the way and the back of the truck was open. The tailgate hoist was fitted to the rear of the truck. It may have been able to be folded up so as to form a tailgate, but I was unable to locate any evidence about that.
22 Nor does the evidence deal with the dimensions of the hoist. It is not clear to me from the evidence whether it was the full width of the truck, but I think it probably was, having regard to the respondent's evidence-in-chief. That evidence is confusing because, after identifying the hoist as an "hydraulic tray lift", he was asked to describe the size of "the tray" and said, "the tray itself was a metre and a half in length and the width of the truck". If that is a reference to the hoist, it was obviously a sizeable unit, which I would describe as being 1.5 metres in width and having a length equal to the width of the truck.
(Page 12)
23 The hydraulic system was activated electrically from the battery of the truck. There was a switch somewhere at the rear of the truck which, when depressed, would cause the hoist to raise or lower itself. When it was lifting it made a loud noise and when it reached the top there would be a clanging sound as it made contact with the rear of the truck tray. On the other hand, when the hoist was lowered it was very much quieter because it was lowered under its own weight as the hydraulic pressure was released. The respondent used the truck frequently and was very familiar with its operation and with the operation of the hoist.
24 The particular work in which the respondent and Fendick were engaged was to load the contents of the office of a staff member who was transferring to the University's Bunbury campus. In particular, they were engaged in loading on to the truck the library of the staff member in question, which was packed in boxes. I gather there was furniture and sundry other items which they had already loaded into the truck when this work commenced. They were able to back the vehicle up quite close to a doorway to the building in which the office was located.
25 Initially, both men used trolleys to bring cartons of books from the office to the truck, but they soon decided that a more efficient process, because they were in something of a hurry, would be to have the respondent work on the tray of the truck, in the van, stacking the cartons which were loaded on to the tray.
26 It was Fendick's job to put a number of cartons on his trolley, bring the trolley to the rear of the truck, lower the hoist, put the trolley and its load of cartons, or perhaps the cartons themselves, on to the hoist, himself get on to the hoist and, operating the electrical switch, raise the hoist to the level of the tray. Fendick, with the assistance of the respondent one presumes, would then place the cartons on the tray of the truck so that the respondent might stack them and Fendick would then ride the hoist down to the ground and take his trolley back to the office for another load. This, one gathers, he did on a number of occasions. On the particular occasion, he said he was about two-thirds of the way down to the ground on the hoist and, while it was still travelling down, the respondent fell back, as Fendick thought, and struck the hoist.
27 Both Fendick and the respondent agreed that at the time when the accident happened there was about a metre of space on the tray upon which the respondent was working and upon which the cartons could be placed. Fendick said that his average trolley load would be four or five cartons. As I have mentioned, the accident happened when for some
(Page 13)
- reason during the process of stacking the boxes, the respondent stepped back without looking where he was on the tray of the truck and without looking to see where the hoist was, the hoist at that time being in the process of lowering Mr Fendick to the ground. The respondent conceded that in the performance of his task he would be constantly looking about to see what he had to stack and where. He agreed that he was aware of Fendick's comings and goings.
28 In those circumstances, in my respectful opinion, the breach of the duty of care owed by the respondent was not established simply by the observation of the trial Judge, which I have quoted, that it was obvious that, "when the loading of the truck was almost complete so that there was limited space left on the tray of the truck, the [respondent] would step on to the platform". To my mind, the chance that he would do so without looking where he was going was, although reasonably foreseeable, remote.
29 In my opinion, the appellant was, acting reasonably, entitled to expect that the respondent would look where he was going rather than that he would step back, knowing that he was about to step off the back of the truck tray, without looking to see whether the hoist, which he knew was constantly on the move and which he knew he would not necessarily hear being lowered, was in fact in a position level with the tray of the truck. Further, unless he looked or heard what was happening behind him and so positively satisfied himself that it was safe to step backwards, the respondent could not know whether there were cartons of books on the hoist or whether, as was the case when the accident happened, Fendick was there. There was no substitute for the respondent looking where he was going and, in my view, it was not negligent for the respondent to rely upon him to do so.
30 If, however, I am wrong on the issue of breach of duty, it is convenient in respect of the liability of both parties to have regard to the question of contributory negligence, upon which I have set out the view of the trial Judge. His Honour did not find this to be a case of mere inadvertence. He found that the respondent stepped back without looking because he believed that the hoist would be in a position for him to do so safely. He was of that belief, his Honour found, because the respondent had not been told that the hoist was to be lowered and had not heard any sound to indicate that it was being lowered.
31 Again, in my respectful opinion, that is not to the point. The question was whether the respondent failed to take due care for his own
(Page 14)
safety in any of the respects pleaded; in short, by failing to look where he was going when there was no suggestion that there was anything to prevent him doing so. In my respectful opinion, the respondent's failure in that regard was very much the substantial cause of the receipt of the respondent's injuries.
32 If the appellant was negligent in failing to have a system to warn the respondent when the hoist was being lowered, then, in my opinion, the respondent's failure to take the simple precaution of looking to see that it was safe to step backwards was contributory negligence and, in my view, the proper apportionment would have been 70 per cent against the respondent, having regard to all the circumstances of the case.
33 However that may be, I conclude that the appellant should succeed on the issue of liability and it is, therefore, unnecessary for me to consider those grounds of appeal which are concerned with errors alleged in respect of the assessment of damages. I would allow the appeal, set aside the award of damages made to the respondent and direct the entry of judgment for the appellant.
34 TEMPLEMAN J: I have had the advantage of reading in draft the reasons prepared by Murray J. I agree with those reasons, and with the orders proposed by his Honour.
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