Hooper v Universal Civil Staff Pty Ltd
[2021] VCC 1767
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-02648
| TIMOTHY PETER HOOPER | Plaintiff |
| v | |
| UNIVERSAL CIVIL STAFF PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-29 October 2021 (inclusive) and 5 November 2021 | |
DATE OF JUDGMENT: | 11 February 2022 | |
CASE MAY BE CITED AS: | Hooper v Universal Civil Staff Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1767 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL INJURY
Catchwords: Workplace injury – negligence
Cases Cited:Hardy v Mikropul Australia Pty Ltd [2020] VSC 42; Wyong Shire Council v Shirt (1980) 146 CLR 40; McLeod v Mainfreight Distribution Pty Ltd [2021] VSCA 255
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr B Hill | Shine Lawyers |
| For the Defendant | Mr W R Middleton QC with Mr M Clarke | Hall & Wilcox |
HIS HONOUR:
Introduction
Morang Views
1South Morang is a suburb of Melbourne, Victoria, approximately 21 kilometres north-east of the Melbourne Central Business District. Depending upon traffic and roadworks, it is an approximate forty-to-sixty-minute drive by car from the Central Business District.
2Morang Views is a residential development of apartments and town houses located near the intersection of Plenty Road and Gorge Road, South Morang. Access to a group of townhouses in Morang Views is via a driveway at 38-40 Gorge Road, South Morang (“the driveway”), adjacent to a large commercial hotel, which abuts a Dan Murphy’s liquor shop on Plenty Road, and to the untrained eye is not much of a view. The driveway runs in an approximate North – South direction and intersects with Gorge Road as it runs in an approximate East – West direction.
The Defendant
3The defendant, Universal Civil Staff Pty Ltd, is involved in civil construction. It is apparently one of several related entities as part of a group of “Universal” branded companies.
4The defendant and other “Universal” companies were the developers of Morang Views. For the purposes of that development a mixture of its own employees and sub-contract trades people were engaged. The Morang Views project was commenced some time prior to February 2016.
The Plaintiff
5The plaintiff, Mr Timothy Hooper, is now 46 years of age. He is now married and lives with his wife in Doreen, Victoria. They have a son together. The plaintiff has a daughter from a previous relationship. His wife has a son from a previous relationship. All the children currently live with them.
6The plaintiff had a difficult upbringing. His parents separated when he was approximately nine years of age. He attended Charlton High School to partway through Year 11. He then moved to Melbourne and drifted in and out of employment and in and out of trouble with the law. His is a far too familiar story of drug and alcohol abuse by a young person with little or no formal education. To some extent the inevitable happened when the plaintiff found himself imprisoned during 2005 for drugs and assault related crimes. To his credit, after his release from prison, he managed to turn his life around, particularly from approximately 2010, which coincided with his good fortune in forming a relationship at that time with his now wife. The picture is of a man who at that stage grew up, settled into married life, and accepted his family responsibilities.
7In the years after 2010 the plaintiff had labouring type employments, including working at a company that made windows. He then decided to move into civil construction as he saw job opportunities in that field and an opportunity to provide some stability for his family. After obtaining a Certificate III in Civil Construction and red and white tickets to work on construction sites, he obtained a job with Adams Earthmoving (“Adams”).
The Plaintiff commences work with the Defendant at Morang Views
8After working for about six months with Adams, in February 2016 the plaintiff obtained full time work with the defendant as a general construction labourer. Apart from perhaps a day here or there, that work was at Morang Views. His duties included tidying up the construction site, as well as operating various items of plant and equipment for which he had tickets. To some extent he was employed as a jack of all trades.
9Perhaps surprisingly, there was no process of formal induction when he commenced working for the defendant at Morang Views. He did, however, sign a site induction register[1] on 19 October 2016.
[1] Exhibit D1
10At Morang Views the plaintiff reported to and was supervised by an employee of the defendant, Mr Vince Astuto (“Vince”). On a day-to-day basis, Vince assigned job tasks to the plaintiff.
Incident on 5 December 2016
11The following is a summary of the event that brings this proceeding before the Court. In due course I will summarise in more detail the relevant evidence, but at the end of the day much of what follows is not in dispute.
12On 5 December 2016, Vince directed the plaintiff to clear out garages of townhouses under construction at Morang Views, in preparation for the installation of the garage doors.
13A site hut was located to the North-East at the rear of Morang Views. The plaintiff drove a small front-end loader from somewhere near the site hut and down the driveway in a southerly direction. He then parked the front-end loader and lowered the bucket to the ground at a point approximately in the centre of the driveway in the middle between two units. By reference to the site/set-out plan,[2] the plaintiff parked the front-end loader near the garages for townhouses 18 (to the east) and 19 (to the west). Unit 19 shown on the site plan was ultimately numbered for address/postal purposes as Unit 9 and Unit 18 shown on the site plan was ultimately numbered as Unit 6, when the development was completed. In these reasons I shall refer to the units by the both the site and postal address as Units 6/18 and 9/19.
[2]Exhibit P3
14The plaintiff was loading the bucket with items taken to clear out the garage of Unit 6/18, including a long piece of timber. He then moved to the off or western side of the bucket to finish loading the timber, as the length of timber was several metres long and longer than the width of the bucket of the loader. In the process of pulling to centre the timber and immediately after letting go of the timber, the plaintiff stepped backwards and contacted the kerb on the side of the driveway, before going over the top of the kerb and placing his right foot into what was then an unfinished garden bed adjacent to Unit 9/19, causing him to roll his right ankle and suffer injury (“the incident”).
15The plaintiff suffered a ligament injury to his right ankle, for which he ultimately required surgery. He has remained mostly off work since the incident. The dispute about that injury turns more on the extent of consequences and in particular incapacity for work.
The Common law proceeding
16This is a common law proceeding for damages that the plaintiff alleges were caused by the negligence or breach of statutory duty of the defendant. The plaintiff claims damages for both pecuniary and non-pecuniary loss.
17The defendant as the plaintiff’s employer owed him a duty to take reasonable care for his safety while working for it.
18The plaintiff alleges that the incident occurred by reason of a breach by the defendant of the duty owed to him. Broadly, he alleges that the defendant was negligent because it failed to provide a safe place of work, a safe system of work and exposed him to a risk of injury which could have been avoided by reasonable care.
19Specifically, by reference to the particulars of negligence sub-joined to the statement of claim,[3] his Senior Counsel in opening said that particular (h) was relevant in which the plaintiff identified as a particular of negligence “failing to erect any or any sufficient barricades, barriers or warning signs around the whole and/or the building rubble”. That was expanded upon in an opening statement when his Senior Counsel said that there was a fall of approximately half a metre into the garden bed and there should have been bunting or some form of barrier around all the garden beds until the work had been completed.[4]
[3]Plaintiff’s Court Book (“PCB”) 9
[4]Transcript (“T”) 8, Lines (“L”) 1-10
20The defendant by its defence dated 28 September 2020, denied liability. It admitted the existence of the duty to take reasonable care but did not admit any of the particulars of negligence. Further, by its defence, the defendant says if it was negligent, then the plaintiff was contributory negligent.
21In it’s opening statement, Senior Counsel for the defendant submitted that the fact of the plaintiff stepping backwards was the real cause of his injury. [5] The kerb had been there for some time, he was aware of its existence and so the defendant was not negligent.
[5]T22, L12-19
22The oral evidence in this proceeding was limited to the evidence called by the plaintiff. He gave evidence, as did his wife, Mrs Neesha Hooper, his treating orthopaedic surgeon, Mr William Edwards, an expert building surveyor engaged on his behalf, Mr Geoff Woolcock and a post injury employer, Mr Roanld Gerritson. The parties otherwise confined the medical evidence to the tender of medical reports. In addition, the parties tendered various ‘liability’ documents. Despite cross examining the plaintiff about evidence that the defendant said Vince would give, the defendant ultimately elected not to call Vince, or any oral evidence.
23Accordingly, and broadly stated, the issues to be resolved are relatively confined, namely:
(a) the nature of the duty of care owed by the defendant to the plaintiff;
(b) whether any such duty (or statutory duty) had been breached by the defendant;
(c) if the defendant was negligent, whether the plaintiff was contributory negligent; and
(d) the assessment of damages.
The View
24It is convenient to record at this early stage that in addition to the oral and tendered evidence, based on the joint application of the parties, shortly after the commencement of cross examination of the plaintiff, I directed that there be a view of Morang Views and the driveway in the area where the incident occurred. The view was useful in understanding some of the oral and documentary evidence, but otherwise did not add much to the resolution of the dispute between the parties on the primary issue of negligence, particularly as Morang Views is now a completed development. The transcript of the observations at the view is set out below:
“For the purpose of the transcript, I note as follows that on a joint application pursuant to s.57 of the Evidence Act, I allowed or directed a view occur which occurred on 27 October 2021 at the premises known as Morang Views, sorry 38 to 40 Gorge Road, South Morang. In attendance at the view were myself, my staff and representatives of both parties, together with the plaintiff. For the purposes of the view, the court noted that Gorge Road runs in an approximate east-west direction with a driveway running in an approximate north-south direction between the housing units.
At the view the plaintiff confirmed where the front end loader was parked, with the bucket of the front end loader being upon the pavement adjacent to an expansion line between units 19 and 6. The court was informed that unit 9 is marked as unit 19, and unit 6 is marked as unit 18 on the site plan, which is exhibit P3.
The plaintiff said the front end loader had been driven by him from the rear of the development, along the driveway, and was facing in a southerly direction towards Gorge Road when he parked it. When parked, the bucket was placed in the approximately centre of the driveway. The plaintiff indicated that he was loading the bucket with timber taken from unit 6. Unit 6 is located on the eastern side of the driveway. He was loading the bucket in a position where he was standing to the western side of the bucket near unit 9, facing in an appropriate easterly direction. The plaintiff was standing to the western side of the bucket of the front end loader when he stepped back towards the kerb of unit 9 at the location previously shown in exhibit 5.
The plaintiff indicated that the distance between the western offside of the bucket and the offside kerbing was approximately 90 to 100 centimetres. The distance between where the end of the timber plank the plaintiff was handling and the bucket was estimated to be 40 centimetres, and the distance thus between the end of the plank and the kerb was estimated at 50 centimetres.
The distance from kerb to kerb was measured at 4.05 metres. The distance from building wall to building wall was measured at 6.75 metres. The height of the kerb was measured at 14 centimetres. The width of the kerb was measured at 13 centimetres. The distance between the inside of the kerb near the expansion joint and the wall was measured at 103 centimetres, with the distance between the outer edge of the kerb and the wall being 116 centimetres. The width of the garage door of unit 9 was measured at 3.1 metres. The apron between the garage and the kerbing was measured at 3.75 metres.”[6]
[6] T295, L10-T296, L27
The Evidence-in-chief of the Plaintiff
25The plaintiff broadly gave evidence in three stages, firstly regarding his background and life before he commenced employment with the defendant and to the extent that evidence was relevant, I have already set it out in the introduction. Secondly, he gave evidence about his duties with the defendant and the circumstances surrounding the incident. Thirdly, he gave evidence of his injury, medical treatment and incapacity for social, recreational, and work activities post the incident and injury.
26Turning immediately then to the second stage of his evidence, relevant to the work with the defendant, the plaintiff described completing civil construction courses and then obtaining employment with Adams. That was a labouring job, but he was also put on all sorts of machines through which he “gained knowledge of machinery and stuff.”[7] He was with Adams for six months after which he started work for the defendant.
[7]T33, L24
27When he started at Morang Views he was fit and had to pass a medical examination to start with the defendant. He travelled to other sites controlled by the defendant in the first week or two and then the rest of the time was spent working at Morang Views. There were other employees of the defendant at Morang Views but that fluctuated from day to day.
28Day-to-day Vince was his supervisor and gave him tasks to do. His role at Morang Views was as a skilled general labourer. He completed a dogman course and at times was the dogman for the crane. He also had a medium rigid truck licence and a rail certificate to work along railway lines. Through the civil construction course, he got tickets to operate a front-end loader, excavator, bobcat and the like.
29He enjoyed the work at Morang Views and had finally set his sights on a career for the first time.[8]
[8]T37, L7
30He was asked about experiencing any problems at the work site of which he made comment to Vince and said there were quite a few. He said, “that the site – for – for one person like myself as a labourer – the site was way too big to keep housekeeping …”[9] He said he brought general housekeeping matters to Vince’s attention. He would start one task and then Vince would tell him he needed to hop off and go and do something else. He said his day was “so jumbled, you didn’t actually get to finish the first task he set.”[10]
[9]T37, L14-16
[10]T37, L22-23
31Moving next to 5 December 2016, by then the plaintiff had contemplated self-employment in steam cleaning business in addition to the work with the defendant. He had purchased a steam cleaner and had done some work for family and friends but that was as far as that went.
32At Morang Views on 5 December 2016, he was given a task to clean out debris from garages so the roller doors could be installed. He had to clean out more than one garage.[11]
[11]T39, L6
33The plaintiff described the Morang Views development by reference to photographs that depicted the driveway and completed units, including an aerial photograph of Morang Views.[12]
[12]Exhibit P1
34The plaintiff described how he was using the front-end loader shortly before the incident. He parked it facing towards Gorge Road and “in a suitable place where I wasn’t travelling too far from the items that I was putting into the bucket.”[13]
[13]T43, L16-18
35Next, the plaintiff gave evidence about the kerb and the garden beds at Morang Views and how the bucket was placed between Units 9/19 and 6/18. He had been emptying out Unit 6/18.
36The plaintiff was shown a photograph[14] where he had marked with an “X” to identify where the incident occurred. He said that the “X” was in the wrong spot and colourfully explained “I determine now that’s my stuff up there, it’s arse about, I was at the other end of the …”[15]
[14] DCB 234
[15]T50, L18-20
37He then described how the numbering on the site plan was different from the numbers that were assigned to the townhouses at Morang Views once they were constructed.
38He described driving the front-end loader, parking it and being near the off side of the bucket when he fell. He was then asked –
“In what did you fall into?---Into the garden bed.
What had you been doing before you fell into the garden bed?---Taking materials from the on side garage towards the off side of the garage to the bucket of the loader.
And when you took – the last piece of material you took before you fell, what was the nature of that piece of material?---It was a length of timber between three and four metres long.
When you put it on the bucket - - -?---It overhung both sides.
Sorry?---It overhung both sides of the bucket.
Once you put it up on the bucket did you have to adjust it at all?---Yeah, well, just centralising it so it was safe to move.
And how did you go about centralising it?---I just dragged it to the off side of the bucket.
When you were dragging it where were you standing at the time you were dragging it?---On the off side of the bucket, between the bucket and the curb I fell.”[16]
[16]T52, L5-23
39He described how the incident occurred when he “stepped back and turn and gone down the hole (sic)”,[17] as a consequence his ankle rolled and he was in extreme pain. Both legs went into the hole.
[17] T52, L30-31
40The plaintiff was asked how deep was the area into which he stepped (the garden bed). He said that from the top of the kerb to the bottom he would say between 350 and 400 mm.[18] He was asked whether it was solid at the bottom and he said –
“Well, there was – there was to be an off cuts through there. I can’t exactly say I stepped out and landed on a piece of wood, or I stepped down and landed on the bottom of it.”[19]
[18]T53, L27-28
[19]T53, L30 – T54, L2
41The plaintiff was asked whether his foot landed on something when he stepped into the garden bed. He said that his ankle twisted and rolled over but “I can’t say what I landed on, no.”[20]
[20]T54, L18-19
42He was asked whether he was facing the kerbing or in some other direction at the time he stepped into the garden bed. He said that he stepped back to the kerbing. He was asked whether he had a consciousness of the kerbing and where it was. He said –
“No. Like it was there, but no, I didn’t have – I just stepped backwards and – yeah.”[21]
[21]T54, L30-31
43The plaintiff said there was no barrier guarding the kerbing on the day.
44The plaintiff indicated on a photograph[22] the approximate point of his fall by reference to the kerb.
[22]Exhibit P5
45At the time the plaintiff suffered injury he could not recall anyone in close proximity.
46Turning to the third stage of his evidence and events after the incident, he described how after the incident he had instant extreme pain in his ankle. He managed to get to the site hut where he took his boot off and showed Vince the swelling, which was massive and virtually instant. He could not recall any treatment given to him at the site hut. The defendant did not have any facility or first aid method for applying ice to the injury. Vince took him to the Danaher Medical Centre as it was the closest one. He was sent for an ultrasound and x‑ray. Eventually he returned to Morang Views as his motorcycle was there and he needed to ride home. Vince drove him from the x‑ray back to Morang Views.
47The plaintiff described the pain in his ankle over the next days and weeks. He started some physiotherapy. The ankle remained swollen. He was needing painkillers. He had another scan of his ankle. He was struggling with the unknowing of what was happening and around Christmas he had panic attacks[23] which was something he had never experienced before.
[23]T61, L13-18
48The plaintiff was then referred to the orthopaedic surgeon, Mr Edwards. He saw Mr Edwards on 7 March 2017. Mr Edwards organised an MRI scan, reviewed that scan and then told him there was no fix other than surgery. That surgery was performed on 12 April 2017 by Mr Edwards. Leading up to the surgery he had ongoing pain and instability in the ankle.
49After surgery, the plaintiff required a plaster cast for approximately six weeks and was on crutches. He was not able to weight bear. He then commenced physiotherapy and hydrotherapy. By that stage he had been off work for approximately six months and described himself as not coping well at all emotionally.[24]
[24]T64, L3
50The plaintiff returned to work with the defendant in June 2018 as part of the return-to-work program at their factory in Epping. That was restricted hours that gradually built up. He was unsure how long that went on for but accepted it may have been about six weeks. When asked about how he progressed in that return to work he said “not well at all. Like, each day was go there, home and put my foot up and, yeah, just go through pain pretty much.”[25] The duties as part of that return to work were limited duties, sweeping. He struggled with those duties and considered himself to be deteriorating. He then decided in conjunction with his doctor to stop the return to work.
[25]T64, L20-24
51In July 2017 he returned to see Mr Edwards and was prescribed a brace for the ankle. He wore it for a period. He was prescribed Lyrica which he continues to take when his ankle plays up.[26]
[26]T66, L3
52The plaintiff gave evidence about other specialist referrals and ongoing symptoms in his ankle. Those referrals included treatment with Dr Euahna Varigos by way of some form of laser treatment.
53The plaintiff continues to take Mersyndol Forte of a night-time to assist with sleep. He said he could not describe his ankle pain, but it gets uncomfortable and will wake him up.[27]
[27]T67, L19-22
54The plaintiff gave evidence about referral to a psychologist and psychiatrist and his ongoing use of medication. He described his mood and how it had impacted on his family life. He had a cortisone injection into his ankle on 2 March 2018 which he described as providing short term improvement.[28]
[28]T69, L29
55He then described how he learned to live with his injury. He described ongoing swelling. When asked about his exercise tolerances he said –
“That really hasn’t changed all that much. Day-to-day can be different. Generally I can walk for half an hour, maybe 40 minutes or so before I’ll start taking breaks. If I overdo it and push past the limits where I know I’ve got to get off this foot and rest it, if I push past that, I go into the swelling and, yeah, I can be – I can be in quite a bit of pain for two days after that and that’s still going forwards from today. That’s just how it is.”[29]
[29]T70, L16-24
56Mr Edwards referred him for a second opinion with Mr Terence Chin but he (sort of) pain managed himself over the last few years. He sees his general practitioner Dr Chaudhary Panwar each fortnight. He had been seeking a pain management course which he intended to start on 11 November 2021.[30]
[30]T72, L8
57He would love to be working and regarded work as what a man is supposed to do.[31] He had looked for work tow truck driving and through a friend he had given it a go, but it did not work out. Climbing up onto the tray of the truck caused discomfort and his foot to swell and he was then out of action for a couple of days with his foot elevated.[32]
[31]T74, L28
[32] T75, L26-29
58His wife has had her own health problems. Because of his injury, their relationship had suffered. Pre‑injury he had hopes of gaining experience and continuing to work in civil construction. He said that the way his foot now is he could not see himself doing that. He gave evidence as to how his injury impacted on the sorts of things he could do with his children.
59Next, the plaintiff expanded upon how his injury had impacted on his relationship with his children and his wife. Before the injury was the first time in his life that he saw himself as having an actual future and a career he liked.[33] He saw himself pre‑injury with opportunities he never thought he would have, and was looking in the future for a position as a supervisor and being somebody important in the job which he had never previously dreamt about ending up having.[34] But, with his foot the way it is now, how he did not see the future as he had hoped. The inability to work made him frustrated and irritable.
[33]T77, L29
[34]T78, L12
60He expanded again about how his ankle impacted on certain activities. He now has his own special way of going up and down steps. He described difficulty walking on uneven ground and difficulty with gardening and of his foot at times still being sensitive with immediate pain and how if he stands on something that causes a quick reaction in the foot.[35]
[35]T80, L9
61The plaintiff was asked about riding motorcycles and domestic duties. He still rode a motorbike but not a dirt bike. He explained that “Half an hour on a dirt bike and I’m down for two days with my ankle”[36] but he did not have any problems riding a road bike. He still did housework to the best of his abilities. He has increased pain after gardening and swelling. He takes two Mersyndol Forte at night with the main reason to have a good block of sleep.[37]
[36]T80, L26-27
[37]T81, L18
62He has attended a job agency and asked for help to obtain a higher level of truck licence because with a heavy rigid licence “you’re based sort of in the truck more. That you’re not frequently in and out.”[38] There had been no jobs offered to him over the last two or three years.
[38]T82, L4-5
63The plaintiff gave evidence about obtaining a job at Mobility Scooters. It was a general labourer and maintenance position in a small company. He enjoyed the work, and it was within his capacity but as time went on he was coming home from work and the ankle was sore and started to drag him down. So he ceased that job.
64The plaintiff described how there is “never no pain” in his ankle.[39] The pain is like a dull ache with electrical type shocks through his foot, or sometimes pins and needles and hot burning. He has recognised when to get off his ankle and when to sit down and rest, for example when at the shops with his wife. He is still able to engage in some day-to-day activity and he can take his son to school. He had thought about employment such as a bus driver because it was something off his feet and did not entail reading, writing, computers “and stuff like that”.[40] Previously he had hoped to buy a house, but he could not see that as being realistic now. His symptoms have remained pretty much the same over the last four or five years.
[39]T83, L27
[40]T85, L1-4
Cross-examination of the Plaintiff
65Soon after cross-examination commenced, the plaintiff was asked if he would prepare a map or diagram in crude terms showing the position of the front-end loader to the garden bed and the like. That map was tendered by the defendant.[41] Not much turns on it.
[41]Exhibit D5
66The plaintiff was asked questions about the front-end loader. He said it was not a massive machine; it was not a bobcat and was sort of like a regular tractor but without the big wheels on the back.[42]
[42]T90, L20-27
67The plaintiff was then asked about his tax returns and the fact that when working at Majestic Windows it had been part time employment. He was taken through his earnings in the years commencing with the defendant and his work with Adams.
68The cross-examination of the plaintiff then resumed after a view had been held at Morang Views. Upon resumption of his oral evidence, the plaintiff was asked questions about the qualification he had by way of the Certificate III. He was asked whether that course embraced such things including occupational health and safety and he said it did. He was cross-examined about his certificates to operate machinery and his red and white cards and accepted that it taught him about occupational health and safety and the need to do inductions and those sorts of things before going onto a work site.[43]
[43]T103, L10
69It was suggested he had been given an induction program with the defendant, but he disagreed and said that did not occur until well after he had started. When shown the site induction register, he accepted that it contained his signature and he was asked about what he signed off on and said “Well, it would have been their safe work methods or their JSA. I’m not sure.”[44] He could not recall the detail in the induction, and it was “Pretty much just sign the form so we can – you’re inducted onto site and let’s get back to work.”[45]
[44]T104, L20-21
[45] T105, L13-15
70The plaintiff was then cross-examined about a safe work method statement – mobile plant – signed by him on 27 May 2016[46] and he agreed that he must have read that document.
[46]Exhibit D2
71As to the nature of his employment, he was employed to perform general duties around the site. He accepted a big part of the duties was to be responsible to Vince and clean the site, but it was not just that. He coped with the work but expressed a few times to Vince that the site was too big for one person to be doing the same job. He told Vince it was too big for the general duties that he was doing but disagreed that was only because he was new to full time work.[47]
[47]T110, L8
72Turning to 5 December 2016, the plaintiff was cross-examined about how the incident occurred. He agreed that cleaning out the garages was not a new task. He would have been given a specific direction by Vince to do it. He could not now recall what time he commenced that task, but it would not have been his first task for the day. The incident occurred approximately just before lunch or just after.[48]
[48]T112, L31
73The plaintiff was cross-examined about where he parked the front-end loader and the bucket on it and what would have stopped him from driving the front-end loader forward another metre to an open expanse of the two entries to the double garages. In answer he said, “I can’t honestly answer. Maybe there was another trade ute there, I don’t – I can’t answer. I can’t give a reason.”[49] It was again put to him that there was no reason why he could not have positioned the bucket another metre or so and so that it had available the expanse that provided entrance to the garage. Where he had parked was the closest for the job that he was doing[50] but he accepted that he decided where to place the front-end loader and the bucket. When pressed, he said, “Well obviously I put it there because there was an obstruction in front and I put it in the safest place for me.”[51] In response, Senior Counsel for the defendant suggested he was simply making that up, to which he replied, “Obviously there was something that made me make that choice to park it there,”[52] but eventually he conceded “I don’t recall why I stopped – why I parked there”.[53]
[49]T114, L1-3
[50]T114, L17-19
[51]T115, L7-9
[52]T115, L13-14
[53] T115, L22-23
74In respect to the bucket, the plaintiff could not recall how full it was or how many items he had placed in it before the accident. He was asked questions about the piece of timber that he had extracted from Unit 6/18. He could not recall any obstruction to the entrance to that garage. At the time that he was placing items in the bucket he could not remember any other trades people walking past. He could not remember what he had placed in the bucket, but he remembered the timber because “the timber was where I injured myself”.[54]
[54] T117, L28-29
75Regarding the piece of timber, he had put the timber over the bucket, and then moved to the offside to drag the timber back, when he stepped backwards and “it’s gone down the hole”.[55] He was asked about the description of going down the hole and clarified that as “over the kerb” and that his foot went over the top of the kerb and “down into the garden bed”. He was asked whether his foot struck the kerb and he said, “the top of the kerb, yes, and then down into the hole”, and that his foot “slipped on the top of the kerb down into the hole”.[56]
[55]T118, L8-10
[56]T118, L11-23
76Specifically, the plaintiff was asked whether he fell into the garden bed. He said “Well, my foot went down the – to the ground – the base level of the garden bed into the – my ankle has rolled and I’ve gone down to my knee, you could say, because I had no – my foot was gone”.[57]
[57]T119, L1-6
77The plaintiff was asked, when moving backwards, whether he was still handling the timber and he said that he had adjusted the timber and stepped back away from the timber. He was asked to explain that and said, “I just let my hands go of the timber to move away, step back around and down”.[58]
[58]T119, L7-13
78Returning to the timber, the plaintiff said he had gone round to the offside of the bucket and dragged it across, but he did not know why he did not do that from the front and could not give a reason why he did not do it from the front.[59] It was put that there was no necessity to go to the offside of the bucket and he said “Well, obviously the way I done it – I felt that there was”.[60]
[59]T119, L27-29
[60]T119, L31-T120, L1
79The plaintiff was then cross-examined about what was set out in his statement of claim and again asked about the circumstances of the incident. Again, he said that he stepped backwards from the top of the kerb down into the garden bed and that there were offcuts from different trades in the bottom of the hole.
80The plaintiff was then asked more questions about how the incident occurred. It was put that before he went into the garden bed, he had put his foot onto the concrete kerb, and he agreed. It was then put to him that―
“That’s because you’re walking backwards, correct, and you weren’t looking where you were placing your feet, were you?--- Well – yes – yes.
The answer’s yes, you weren’t looking where you were placing your feet, were you?---Yes, I had to step backwards, no, yeah.
Because if you had looked and you had seen it, you wouldn’t have walked backwards, would you?---No.
But you knew that concrete kerb was there and had been – well, you knew it was there for a start?---Yes.
And it had been there for some duration, a long time?---Not too long.”[61]
[61]T121, L28-T122, L8
81There was further cross examination directed to his answers to the defendant’s interrogatories and how he had described the incident in those answers, which were then tendered.[62] Specifically, he was taken to the defendant’s interrogatory 5(a) which enquired as to whether prior to the incident he was aware of the presence of the kerb and his answer “Yes”. He was next taken to defendant’s interrogatory 6 and his answer that “I cannot recall how long the ‘concrete kerb’ was there before the incident but I was aware of it on the day of the incident and before I was injured”. This part of the cross-examination culminated in the suggestion that if he had not slipped, tripped or lost balance on the concrete kerb, he would not have gone into the hole. He said “No, if the hole was correctly built I wouldn’t have thought – I wouldn’t have done the injury that I received”, but eventually conceded that if he had not stepped backwards, he would not have gone into the hole.[63]
[62]Exhibit D3
[63]T125, L12
82Eventually, the plaintiff agreed that the incident occurred when he stepped backwards, his foot clipping the kerb going over and injuring himself at the bottom of the hole.[64] He pulled on the timber to centre it on the bucket, and he then let go of it and stepped backwards and that is when the incident happened.[65]
[64]T129, L7-8
[65]T130, L6-8
83Pausing here, at the conclusion of the evidence, the parties essentially agreed that as at the happening of the incident there was contact by the plaintiff’s foot with the kerb, but that he did not stand on the kerb, in the sense of planting his foot, and he did not sustain his weight on the kerb. He then fell into the garden bed and suffered injury.[66] This highlights the narrow factual dispute in this proceeding, to which I shall return, in that the exact mechanism and circumstances of injury are not really in dispute.
[66]T325, L27-31 and T327-L1
84The plaintiff was then cross-examined about the garden bed and his answer to the defendant’s interrogatory 5(b). It was put to him that his suggestion that the hole was 400-450 millimetres was incorrect. He said―
“Well, my rough measurements were pretty close. The top of the kerb – like from concrete top of the kerb, I estimated 135 and it was 140. Then I said a slab is 300 plus, so that gives you 430 just in the slab of the – the base of the driveway, and the height of the kerb on top of that. That’s where I got my answer from.”[67]
[67]T133, L2-8
85There was then cross-examination based on what the defendant said the evidence would be about the construction of the garden bed, bearing in mind that ultimately no evidence was called about that, which I shall return to discuss.
86The cross-examination then moved to the events after the plaintiff was injured. He said he limped to the site hut and Vince was there and then they went to the Danaher Medical Clinic. The plaintiff was cross-examined about events on that day, the reporting of the injury and again about his role working at Morang Views and induction.
87The plaintiff was then cross-examined about the consequences from the ankle injury and the treatment he has had and continues to require. It is unnecessary to set that out in detail, but I have considered it. The focus of that part of the cross-examination was on the plaintiff’s attempts at finding work. He was cross-examined about his hobby of restoring motorbikes and of dirt bikes that he owns. He said he had bought and sold bikes since the accident but was unclear as to how many.[68]
[68]T169, L7
88He was next cross-examined about his post-accident work at Mobility Scooters. That was for six months, up to 20 hours a week. The plaintiff said he left because of his ankle restrictions, and he had not looked for another job since then.[69]
[69]T169, L23-29
89The plaintiff was cross-examined about his current tolerances, and he agreed that standing 30 to 60 minutes was about the basic of what he can do, although he could push further, but he risked the effects of pain. He accepted that walking was also about 30 to 60 minutes. He has had to modify how he climbed stairs. He could drive unrestricted. He was asked about the possibility of a job as a courier and said it would depend on carrying and manual handling and stuff and getting in and out of vehicles. He was further cross-examined about his motorbike and agreed that he had a Harley Davidson and could ride that for about an hour or so. He was cross-examined about a driving offence in 2018 when he did a “wheelie” on a different motorbike.[70]
[70]T171, L16
90The plaintiff was cross-examined about his past criminal offending. He was asked about other jobs he might have now considered, such as Uber driving. He was cross-examined about whether he could do a forklift job and said it would depend on hopping on and off the machine and manual handling.[71] He was asked about the fact he already had a medium size truck licence and he thought he could get a heavy truck driver’s licence. He said he thought that with a heavy rigid licence he would not have to handle any product or equipment, just simply drive the truck, and he had also contemplated being a bus driver, but he had not made any inquiries about any of those jobs. He gave evidence about a recent referral to a vocational provider.
[71]T180, L11
91The cross-examination finished with a suggestion to the plaintiff that he was exaggerating his physical symptoms, which he denied.[72] He was cross-examined about a lump sum superannuation payment.
[72]T185, L10
Re-examination
92In re-examination, the plaintiff said he was involved with a job agency who are now looking at different jobs, such as sitting in a traffic camera car.[73] He said no job had been identified that he should apply for. He was again asked questions about his current ankle symptoms, and he said that clicks and cracks all the time.[74] He was asked questions about getting a job at Mobility Scooters.
[73]T186, L27
[74]T188, L26-27
93In respect to the work at Morang Views and the induction form, he said it related to an occasion when WorkSafe came to the site and there was a quick scramble to try and fix things up,[75] but he could not recall being given any other induction documents.
[75]T190, L23-24
Geoffrey Woolcock
94Mr Woolcock (“Woolcock”) is a building surveyor consultant. It was agreed between the parties that he was appropriately qualified to provide opinion evidence regarding the incident.
95Woolcock’s opinion was confined to sections of two reports prepared by him on 4 May 2021 and 1 July 2021[76] and he otherwise gave oral evidence and was cross-examined.
[76]Exhibit P9
96Woolcock had not been to Morang Views, and he had not interviewed the plaintiff. His written and oral opinions were based on documents provided to him and questions asked of him.
97In that setting, in evidence-in-chief, Woolcock confirmed his opinion, as set out at point 7.13 of his first report, that the worksite should have been inspected on a routine basis to identify any hazards. He then confirmed his opinion, as set out at point 4.2 of his second report, that the kerb and rough ground should have been identified as a trip hazard.
98He was then asked about parawebbing and described that it was plastic mesh, the height of a balustrade, that is stretched between pickets or bollards to isolate an area that might be considered a hazard.[77]
[77]T196, L25-28
99Woolcock was then cross-examined by junior counsel for the defendant. He was cross-examined about his opinion that parawebbing is often used around an excavation. It was put to him that there was nothing to suggest the facts of this proceeding involved anything about an excavation site and he agreed. He also agreed that when walking it is a good idea to watch where you are walking and that it was a matter of common sense to watch where you are placing your feet and that it would be good practice to watch where you are placing your feet on a building site.[78] It was put to him that it is more important on a building site because you expect there to be more hazards and he agreed particularly because a building site goes through different stages of construction, which would be well known to persons working in building sites.[79]
[78]T201
[79]T202
100Woolcock was then cross-examined about his knowledge of various courses that the plaintiff had obtained to work in civil construction, but he did not have expertise in those courses.
101Woolcock was then asked –
“And you’d expect that person to certainly be aware that if they were stepping backwards on a building site, that they should first look where they were stepping backwards to?---I guess you would think so, depending whether or not they’d already overbalanced or tripped.
But if they had made a deliberate action to step backwards, you’d expect them to have made the deliberate action to see where they’re stepping backwards to?---That’s right.”[80]
[80]T204, L8-15
102Woolcock was asked if you were going to step backwards, you should look where you are going and he agreed, “particularly given the area’s surrounded by hazards.”[81] He was asked if a person did step backwards, whether he would agree they were not taking appropriate care for their own safety and said, “That’s probably hard to judge”.[82]
[81]T204, L26
[82]T204, L30-31
103In cross-examination, he agreed that he had not been to the building site and had only limited his opinion to the written questions asked of him and that he had been asked to provide an opinion in respect to a trip on the building site after examining several documents. He accepted it was only very limited information that he had.[83]
[83]T206, L6
104He was cross-examined about his opinion that the trip hazard could have been minimised using parawebbing or tape barricades after an assessment of the site hazards and said, “Yes, it’s a fairly general statement, yes.”[84] He was then asked about the hazard referred to in his report as being the rough ground inside the garden bed and eventually agreed. He also agreed that he was not focussed on the kerb in his report and he described the kerb as “fairly typical.”[85]
[84]T206, L14-17
[85]T207, L12
105It was then put to Woolcock that –
“So there’s no need to be barricading the kerb with para webbing or tape?---I wouldn’t have thought if that was the only feature, no.
And you’re certainly, in this initial report, directing your opinion to the hazard just being the rough ground?---Well, it’s the combination, yeah, that’s right.
It’s not the combination in this initial report, I suggest and a moment ago you accepted that when you were referring to hazard you were referring to the rough ground inside the garden bed?---Yeah, the question put to me was about the rubble and the like and the rough ground, yes, so I focused on that.
Is that another way of saying yes to my question?”---Yes.[86]
[86]T207, L13-25
106It was then further put to Woolcock that –
“So that being so, you’d agree, wouldn’t you, Mr Woolcock, that if it were the case, if the court accepted Mr Hooper fell or tripped as a result of impacting the kerb, then the measure of para webbing or tape would have no impact on whether the event occurred or not?---Well para webbing could have provided a form of warning that - - -
(indistinct) whether if his foot had impacted the kerb and caused the fall, para webbing or the tape barricade would have been of no assistance to prevent the fall?---It would be unlikely that it would have been of any assistance, unlikely, yeah.”[87]
[87]T207, L26 – T208, L5
107Woolcock was then re-examined about hazards on building sites. He was then asked –
“Mr Clarke asked you about why mark a kerb and you said if this were the only feature, it may need not to be marked. In relation to this particular event, what if any additional feature was there apart from the kerb that makes this area exist as a hazard?‑‑‑Well, there was a drop of about 450 on the other side where there was a trench, there was loose rubble, and rough ground. It wasn’t simply a difference in level between two smooth surfaces, it was quite a different surface on the other side that was not suitable for standing in, really.
Now, you were asked questions about how would bunting or taping stop a falling - somebody falling if they did trip, but what’s the purpose of the bunting and taping? Is it to stop the falling or does it have another purpose?‑‑‑The main purpose is to warn people that the area has been isolated.”[88]
[88]T211, L29 – T212, L13
108Woolcock was re-examined further as follows –
“All right. Well, it’s - you said it wouldn’t stop the fall. Why do you put para webbing or taping around the hazard if that itself wouldn’t stop the falling of the person?‑‑‑It’s twofold. It’s really to isolate an area and to act as a warning.”[89]
[89]T212, L24 - 28
109Finally, on the issue of parawebbing around the kerb he was asked –
“Mr Woolcock, if there were para webbing or taping around this kerbing at the location where you understand the fall occurred, what effect would that have upon the potential of the fall occurring at that place?---It may’ve provided early warning that the area was defined as a hazard. You may’ve felt it before moving in that direction.”[90]
[90]T213, L13-19
William Edwards
110The plaintiff’s treating orthopaedic surgeon, Mr Edwards, gave evidence as a specialty in foot and ankle surgery. He had provided reports regarding the plaintiff which were tendered.
111Mr Edwards was then cross-examined about the treatment he had provided to the plaintiff and the plaintiff’s ongoing complaints of pain. In a relatively lengthy but appropriate cross-examination, it was effectively put to Mr Edwards that the plaintiff’s current ongoing complaints of pain could not be explained in the setting of Mr Edwards performing a ligament repair which had been successful. It was effectively put to Mr Edwards that the plaintiff’s ongoing complaints could not be explained on an organic basis and he was cross-examined about his opinion that the subtalar joint might now be involved and explained the plaintiff’s pain.
112In re-examination Mr Edwards was asked about nerve pain and a nerve problem that he had identified and what the prognosis was regarding that. He said that without intervention it would stay the same.[91]
[91]T234, L29-30
Ronald Gerritsen
113Mr Gerritsen was called to give evidence as the owner and operator of Mobility Scooters, who had employed the plaintiff in 2018 as a technician to carry out repairs on mobility scooters. He spoke highly of the plaintiff. The plaintiff was doing four to six hours a day and he thought the plaintiff was suffering a little bit of pain by the end of the day and it was getting difficult for him to do the work and the plaintiff did not necessarily work every day of the week either.[92] He gave evidence broadly of the plaintiff working part time but with difficulty, but otherwise having the technical ability to do the job as a technician.
[92]T244, L25-30
114In cross-examination he said he thought the plaintiff finished work in February 2019, but he could not recall any conversation with the plaintiff about why he was ceasing work. He conceded the plaintiff could have just decided to leave for some other reason as they did not discuss it specifically, but he said it did not surprise him when the plaintiff finished work because he had seen him under considerable pain and he just could not work at times.[93]
[93]T249 – T250
Neesha Hooper
115The final witness called to give evidence was the plaintiff’s wife, Mrs Hooper. She gave evidence of the plaintiff’s background, his move into civil construction and his involvement with the children before his accident. Before the accident he wanted to do something to lead to more opportunities and more pay and that was why he had pursued construction.[94]
[94]T268, L13-16
116She then gave evidence about his injury and the impact on him since then and of her observation of him being in pain from his ankle injury and also of his mood. She had a significant health problem of her own but had returned to the workforce prematurely because of the family’s financial situation.[95] She gave evidence broadly of what she had observed of her husband and his day-to-day suffering in pain.
[95]T272, L24
117In cross-examination she accepted that it was a busy household with all the children at home. She had recently started a new job in a dispensary. She was aware that her husband helped with some of the activities such as the school run and the housework, but she did not let him do the laundry as he did not do that properly.[96] She gave evidence about general maintenance around the property and of him tinkering with motorbikes. She thought he had bought a couple of bikes. She described ongoing symptoms and how her husband had rolled his ankle a couple of times after the surgery.
[96]T277, L26
The other evidence
118In addition to the oral evidence, the parties tendered material, including photographs of Morang Views, a photograph of the kerbing upon which the plaintiff fell,[97] and interrogatories of the defendant for the examination of the plaintiff and his answers to interrogatories 1 to 6 (inclusive).[98] In addition, the parties provided written submissions, which were taken as exhibits.[99] Further, in circumstances where the Court had been informed that the primary issue between the parties related to the issue of negligence, with the Court’s encouragement, the parties otherwise tendered medical reports upon which they relied, instead of requiring the medical experts to attend Court to give oral evidence. I have considered all the tendered material, the parties’ written submissions and the transcript of the evidence and the oral submissions. I will only refer to that material to the extent necessary in these reasons.
[97]Exhibit P1 and Exhibit P2
[98]Exhibit D3
[99]Exhibit P11 and Exhibit D10
119It is again convenient, at this stage, to briefly note that the medical dispute in the proceeding was also relatively confined. The defendant accepted that the incident occurred, and the plaintiff suffered injury. The defendant submitted, consistent with the material tendered by it, that the inversion injury to the plaintiff’s ankle had been successfully treated by Mr Edwards and there was no anatomical explanation for the plaintiff’s ongoing complaints of pain. The defendant also took issue with the extent of the plaintiff’s claimed incapacity for work and recreational pursuits.
The Parties’ submissions
The Defendant’s submissions
120Senior Counsel for the defendant commenced oral submissions by raising what the defendant said were matters of credit in respect to the plaintiff’s evidence. It submitted that the plaintiff was evasive, unreliable and reluctant to say things that he thought might be contrary to his position.[100] The thrust of that submission was directed more towards the plaintiff’s claimed restriction for day-to-day activity, but the defendant submitted that it was also relevant as to the liability evidence given by the plaintiff regarding the garden bed and the worksite.[101]
[100]T301, L15-17
[101]T302, L1-7
121There is some merit in the submissions of the defendant regarding the credit of the plaintiff, in the sense that he was at times a garrulous and argumentative witness, but insofar as it is possible to make an assessment of someone’s personality when meeting them for the first time in a perhaps unfamiliar forum of a common law trial, the impression I formed of the plaintiff was that he was in fact attempting to give his evidence as best he could and as he understood the process, even at times when the manner adopted by him was a little irritating. I did not form an adverse view of him as such, but I accept that he did appear at times to be attempting to put his case at its highest when it came to matters such as why he was currently out of work.
122It is important, in my view, to distinguish between the plaintiff putting his best foot forward when it came to the consequences from his injury, as distinct from how his evidence about how the incident occurred, which struck me as particularly clear and candid. I do not accept that the plaintiff’s credit was impugned in respect to the accident circumstances, especially as the defendant elected to call no relevant evidence on that topic. I am comfortable that I can accept the plaintiff’s evidence about how the incident occurred.
123The defendant submitted that the unfilled garden bed was not a hazard, in part because it was not a thoroughfare and not an area that the plaintiff was directed to go into. The plaintiff was aware of it and the cause of his injury was his stepping backwards and not looking. The way the plaintiff was injured was not a foreseeable risk. The plaintiff’s case, it was submitted, was an example of retrofitting the identification of the risk of injury after the event to suit the case in negligence in circumstances where the real risk was the plaintiff’s stepping backwards on a building site without looking where he placed his feet.[102]
[102]T313, L2-8
124The plaintiff’s own expert opinion did not assist his case. Parawebbing or a tape barricade may have provided a warning, but it would not have stopped the plaintiff from stepping backwards and so the Court could not be satisfied that a parawebbing or tape barricade would have prevented the fall and the plaintiff’s injury.
125Next, the defendant made submissions regarding contributory negligence. The defendant submitted that the plaintiff was contributory negligent and that such a finding of contributory negligence should be significant, certainly more than 50 per cent and in the range of or up to 75 per cent.
126Next, the defendant made submissions regarding the medical evidence, the evidence of Mr Edwards and the issue as to the possibility of the plaintiff requiring a subtalar fusion. The defendant accepted that the plaintiff had suffered a ligament injury to the ankle,[103] which required a repair that had been technically successful. The diagnosis or explanation of the plaintiff’s ongoing complaints is not clear. Ultimately the defendant submitted that a figure in the range of $150,000 was an appropriate figure for pain and suffering damages.
[103]T319, L8
127Finally, the defendant made submissions regarding economic loss. Its position is that the plaintiff had a residual capacity for work which he has failed to exercise and accordingly that needed to be factored into an assessment of pecuniary loss damages and in what was effectively a broad-brush approach, the defendant submitted that a figure of $100-$150,000, inclusive of superannuation, would be a reasonable figure for pecuniary loss damages past and future.[104]
[104]T322, L20-26
The Plaintiff’s submissions
128Senior Counsel for the plaintiff commenced by submitting that the failure to identify the hazard and use of parawebbing as tape is the main breach of the defendant’s breach of duty.
129Regarding the accident circumstances, the plaintiff effectively agreed with the defendant’s summary of that evidence. The incident occurred when he had completed performing the task of centralising a plank of timber on the bucket of the front-end loader. He then took a deliberate step backwards without checking what was behind him and that stepping caused his foot to impact the kerb and then fall into the garden bed and sustain injury.
130The plaintiff conceded that to succeed he must show that there was a foreseeable risk of injury from the hazard as identified. He submitted that the foreseeable risk of injury was the risk of injury by reason of the kerbing and the associated hole and the risk of somebody falling into it.[105] The exact mechanism of injury need not be contemplated to determine that there is a foreseeable risk of injury. Somebody carrying out a hazard inspection would have considered that the kerbing and the hole in the proximity to the thoroughfare and where people are going to be working did constitute a risk.
[105]T329-330
131The plaintiff expanded upon this submission to note that the open area, that is the kerb and the hole, had been there for several weeks and was going to remain until landscaping was done. The reaction by the employer in those circumstances should have been to provide some protection from that foreseeable risk of injury, namely parawebbing or a tape barricade.
132Regarding the parawebbing or a tape barricade, Senior Counsel for the plaintiff submitted that such a measure would not be to prevent the injury but rather to provide a visual and tactile warning to the person stepping backwards feeling it before they have transferred their weight and therefore provide a guard, or an opportunity, for that person not to suffer that injury.[106]
[106]T333, L2-9
133In short, the plaintiff submitted that the risk was foreseeable, easily identifiable, and easily guarded against by the use of parawebbing or a tape barricade.
134The plaintiff, in addition to the claim in negligence, also raised in the statement of claim a breach of statutory duty and a claim pursuant to s14B(3) of the Wrongs Act 1958, but sensibly, in final submissions, accepted that the claim for either statutory breach or pursuant to the Wrongs Act did not, in effect, add to the plaintiff’s claim in negligence.
135Next, in respect to contributory negligence, the plaintiff submitted that when the accident occurred, he was concentrating upon activities in fulfilment of the employer’s wishes,[107] and his movement into the “hole” was inadvertent and was not done with any consciousness that his actions at that time were likely to cause him injury or to put him at risk of injury. In comparing the culpability of the plaintiff to that of the defendant, in all the circumstances, it was such that there should be no finding of contributory negligence, but, if contributory negligence was found, it should only be of a minimal amount.[108]
[107]T338, L30-31
[108]T339-340
136Next, the plaintiff made submissions regarding the medical evidence and damages. The plaintiff also made submissions regarding the lay witness evidence, and in particular the evidence of the plaintiff’s wife. It was submitted on his behalf that he had a serious ankle injury and had made reasonable efforts to rehabilitate himself into employment after injury.
137The parties had tendered a summary of agreed mathematics.[109] In accordance with that summary, the plaintiff submitted that he should be allowed the totality of the mathematical calculation as to his past loss. It was accepted, however, that the future loss was more difficult to assess. In the short term he is likely to undergo a pain-management course, and unlikely to obtain employment in the very short term. In that scenario it was realistic to allow him two years of total loss into the future before he returns to the workforce, and then another three years part-time before a full-time work capacity, but with the restrictions and vulnerability created by his ankle injury.[110] The plaintiff then referred to the calculations in the written submissions,[111] accepting that it was not a precise science and the figures “can be used in different ways”,[112] resulting in future loss of earning capacity of approximately $350-400,000.
[109]Exhibit C1
[110]T348
[111]Exhibit P11
[112]T353, L27
138Finally, in respect of pain and suffering, the plaintiff submitted that in light of the serious ankle injury, and by reference to the medical evidence, and in particular the evidence of Mr Edwards, a figure of $350-400,000 would be appropriate for pain and suffering.
Negligence - broadly
139The defendant owed the plaintiff a duty to take reasonable care to avoid exposing him to unnecessary risks of injury. That much is not in dispute.
140In considering the claim in negligence, it is necessary to identify the risk which should have been foreseen, before considering what, if any, steps the defendant should have taken to remove or minimise the risk. Again, that much is not in dispute, but for completeness, what this requires was succinctly stated by J Forrest J in Hardy v Mikropul Australia Pty Ltd as follows:
“It is necessary to identify with some specificity the nature of the risk which must be foreseen. It is not sufficient to address the issue generally, although it is unnecessary for the defendant to foresee the precise risk of injury or damage or how it may occur...”[113]
[113] [2020] VSC 42 at paragraph [227]
141If the risk of injury as identified is foreseeable then the next step is to consider the issue of breach of duty of care. In that regard, the statement by Mason J in the often-cited passage from Wyong Shire Council v Shirt[114] remains apposite, namely:
“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.”
[114](1980) 146 CLR 40 at paragraph [14]
142A more recent statement of the approach regarding identification of risk and breach of duty is set out in McLeod v Mainfreight Distribution Pty Ltd.[115] In McLeod, the Court of Appeal stated:
“The duty of care falls to be discharged by the exercise of reasonable care. In order to assess the scope of the obligation to exercise reasonable care it is necessary to accurately identify the actual risk of reasonably foreseeable injury faced by the applicant. As Gummow J observed in Roads and Traffic Authority of NSW v Dederer, it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be. The mischaracterisation of the relevant risk in that case was apt to distract from a proper evaluation of the probability of the risk occurring and to an attribution to the defendant of a greater control over the risk than it in fact possessed”,[116]
and that:
“The enquiry as to whether a defendant has breached a relevant duty of care is prospective. The Court must determine what response would have been made by a reasonable person looking forward at the prospect of the risk of the particular injury that occurred. Further, as the Court observed in Southern Colour (Vic) Pty Ltd v Parr:
… it is well recognised that a court may, and indeed should, rely on common sense and common knowledge in determining whether a particular risk is foreseeable, and in determining the reasonable and appropriate precautions which a defendant should have taken to avert such a risk.”[117]
[115][2021] VSCA 255
[116]Ibid, paragraph [44]
[117]Ibid, paragraph [49]
Liability – application of the facts
143Turning then to the facts of this proceeding and then applying the relevant legal principles to those facts, it is firstly necessary to determine what the hazard or risk of injury was which should have been foreseen, without the benefit of hindsight.
144The risk properly characterised is that a person stepping backwards may fall into the unfilled garden bed and suffer injury.
145In response to the risk identified, the plaintiff says the defendant was negligent by failing to provide parawebbing or a tape barricade as a visual warning. I disagree.
146Firstly, a consideration of the evidence tends to the conclusion that no warning was needed. The kerb and the garden bed were well known to the plaintiff, and he did not suggest he was unaware of either the kerb or the garden bed when he stepped backwards.
147Secondly, the expert evidence called in aid by him does not assist as that opinion was that the parawebbing or tape barricade would provide a visual warning but would otherwise not have prevented his injury. Indeed, as I understood the plaintiff’s oral evidence, he did not suggest he needed a warning of the kerb or the garden bed. In my view, as correctly contended for by the defendant, parawebbing or a tape barricade would be of no use to provide a visual warning in circumstances where the plaintiff was stepping backwards and on the facts of this case where he did not transfer his weight onto the kerb, but merely contacted the top of the kerb as he went into the garden bed.
148Thirdly, I accept the submission of the defendant that the way in which the plaintiff put his case involves retrofitting the identification of the risk of injury to suit the case in negligence.
149Fourthly, there was no suggestion in the evidence that the kerb or unfilled garden bed posed a risk of injury to anyone walking forwards at Morang Views. Accordingly, I reject the submissions of the plaintiff in the broad about the risk of persons working in the vicinity of the garden bed suffering injury. The plaintiff was injured because he chose to step backwards. The relevant risk to be assessed, without the benefit of hindsight, is the risk that a person might step backwards without looking where they were going, in the vicinity of the unfilled garden bed.
150Fifthly, the plaintiff made submissions about the defendant’s failure to call Vince. In many proceedings involving a work injury there is a factual dispute about the circumstances or happening of an injury, where an adverse inference might be drawn against a defendant who did not call relevant liability evidence that was otherwise available to be called. But the factual scenario in this proceeding does not fall into such a circumstance as there is no real dispute about how the plaintiff was injured. Therefore, while the defendant did not call Vince, and I can more comfortably accept the evidence of the plaintiff, at the end of the day that does not advance the plaintiff’s position to a level where an adverse inference can be draw against the defendant in the liability case.
151I accept the evidence of the plaintiff, which was confirmed by the view, that the Kerb was approximately 135 – 140 mm high and, in the absence of any other evidence, I also accept his evidence that the unfilled garden bed was approximately 300 mm deep when measured from the level of the driveway.
152However, I do not accept the description used at times by the plaintiff (or his counsel) to describe the unfilled garden bed as a “hole” in the sense that to call it a “hole” conveys a suggestion of some sort of unexpected opening in the ground. As observed at the view and as depicted in the photograph tendered as exhibit P5, the kerb itself was a substantial and obvious structure and delineated another obvious area, namely the unfilled and yet to be completed garden bed areas between the driveway and the walls of the Units. To describe the unfilled garden bed as a “hole” in my view is apt to mislead, particularly regarding the primary issue regarding the need to provide a further warning of its existence.
153Sixthly, while the issue of negligence must be decided by the application of legal principles to the facts of the proceeding before the Court, there is some similarity between the circumstances of this proceeding and the factual scenario in McLeod.
154In my view, like the factual scenario in McLeod, the evidence reveals that the real risk of injury that eventuated in this proceeding was not reasonably foreseeable: namely, that the plaintiff would walk backwards in the vicinity of the garden bed, which, if it were a hazard, was a hazard of which he was aware.
155Seventhly, the plaintiff has a significant ankle injury that it has caused him considerable pain and suffering, and impacted upon his ability to work to date, and will impact on his ability to work into the future. I agree that his wife was an impressive witness and that her evidence was compelling as to the plaintiff’s motivation for work before the accident and as to how the accident has impacted upon his life and ability to work. But sympathy does not decide the issue of negligence.
156Eighthly, in summary, the cause of the plaintiff’s accident was that he stepped backwards without looking. It was an unfortunate accident, and not one which an employer exercising reasonable care would have been expected to have foreseen and guard against. It would be unreasonable to expect the defendant to conduct a view of the premises to prospectively identify hazards that might exist if people walk backwards without keeping a proper lookout. To impose such a standard would be akin to demanding a standard of perfection and not to impose a standard of reasonable care. Further, the structure of the kerb and the unfilled garden bed was obvious and well known to the plaintiff. The failure to provide a further warning by way of parawebbing or tape barricade was not necessary in all the circumstances and there was no breach of duty by failing to provide same.
157Therefore, for the reasons given, the plaintiff’s claim in negligence fails.
158For completeness, as noted, the plaintiff brought this proceeding effectively relying solely on the failure to provide parawebbing or a tape barricade to provide a visual warning, as the act of negligence by the defendant. A more detailed analysis of the various particulars of negligence contained in the statement of claim is unnecessary in light of the evidence called and the way his claim was presented; but, if necessary, the claim still fails because, at the risk of repetition, the cause of injury was the plaintiff stepping backwards towards the kerb and unfilled garden bed, which realistically was only a hazard to a person stepping backwards without looking where they were going. In such a scenario there was no breach by the defendant of the duty owed to the plaintiff to take reasonable care for his safety.
159Accordingly, the proceeding is dismissed. I shall hear from the parties as to the consequential form of formal orders.
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