Humphries v Downs Earthmoving Pty Ltd
[2015] QDC 323
•11 December 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Humphries v Downs Earthmoving Pty Ltd and another [2015] QDC 323
PARTIES:
BRETT ANTHONY HUMPHRIES
(Plaintiff)AND
DOWNS EARTHMOVING PTY LTD
(First Defendant)AND
COOLOOLA SECURITY PTY LTD trading as DARLING DOWNS SECURITY (ABN 28 091 393 449)
(Second Defendant)FILE NO/S:
3580 of 2014
PROCEEDING:
Trial
DELIVERED ON:
11 December 2015
DELIVERED AT:
Brisbane
HEARING DATE:
16, 17, 18 November 2015
JUDGE:
Bowskill QC DCJ
ORDER:
Judgment for the defendants
CATCHWORDS:
TORTS – NEGLIGENCE – PERSONAL INJURIES – Dispute as to liability and quantum – Plaintiff employed as security patrol officer by second defendant, which was engaged to provide security patrol services at the premises occupied by the first defendant – Plaintiff injured ankle when tripping and falling on concrete embankment - Scope of the duty of care owed by the first defendant, as occupier, to the plaintiff – Relevance of the relationship between the parties to the judgment about what reasonableness required of the first defendant – Whether plaintiff took reasonable care for his own safety - Whether a reasonable employer in the position of the second defendant would have taken precautions in relation to the risk of injury – Quantum – Whether the plaintiff’s earning capacity diminished as a result of accident caused injury.
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305H, 306J
Workers Compensation and Rehabilitation Regulation 2003 (Qld)Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Davis v Nolras [2005] NSWCA 379
Erickson v Bagley [2015] VSCA 220
Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12
Jones v Bartlett (2000) 205 CLR 166
Kennedy v Queensland Alumina Ltd [2015] QSC 317
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Minogue v Rudd [2013] NSWCA 345
Nichols v Curtis [2010] QCA 303
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Turner v South Australia (1982) 42 ALR 669
Uniting Church in Australia Property Trust (NSW) v Takacs (2008) 174 IR 328
Vairy v Wyong Shire Council (2005) 223 CLR 422
Vozza v Tooth & Co Ltd (1964) 112 CLR 316COUNSEL:
AD Stobie for the Plaintiff
A Collins for the First Defendant
EJ Williams for the Second Defendant
SOLICITORS:
Turner Freeman for the Plaintiff
Carter Newell for the First Defendant
Jensen McConaghy for the Second Defendant
Introduction
The plaintiff was formerly employed by the second defendant (Darling Downs Security) as a security guard. The first defendant (Downs Earthmoving) had engaged the services of Darling Downs Security, by contract, to provide security services at its premises at 4 Rocla Court, Toowoomba (the premises). In the early hours of 9 April 2013, the plaintiff was at those premises in his capacity as a security guard, when he injured his ankle. By these proceedings, he seeks to recover damages for that injury, which he says was caused by the negligence of both his employer, Darling Downs Security, and the occupier of the premises, Downs Earthmoving.
The issues to be determined were agreed by the parties to be as follows:[1]
[1]Agreed List of Issues, filed in Court on 17 November 2015.
“1.What was the scope of the duty of care which the first defendant owed to the plaintiff?
2.If there was any defect in the premises was the first defendant under any duty to:
(a)remedy the defect; or
(b)give the plaintiff warning of the said defect?
3.Does the Civil Liability Act 2003 (“CLA”) apply and, if so, was the risk an obvious risk within the meaning of section 13 CLA?[2]
4.Has the first defendant breached the duty of care which it owed to the plaintiff?
5.Did the second defendant take all reasonable steps to discharge its duty to the plaintiff?
6.Has the second defendant breached the duty of care which it owed to the plaintiff?
7.If there is a breach of a duty of care by either defendant, has the plaintiff caused, or alternatively, contributed to his own loss by reason of failing to take care for his own safety?
8.If there is a breach of duty by both defendants, how should liability be apportioned between them?
9.Quantum of damages.”
[2]The parties (by email from counsel for the first defendant dated 13 November 2015) advised that no party would be submitting that the CLA applies, as all parties agree the injury is “an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies” (section 5(1)(b) CLA).
Pleadings
The following matters are not in issue:
(a)Prior to 9 April 2013 Downs Earthmoving had entered into an agreement with Darling Downs Security under which the latter agreed that it would provide security services to the premises (the agreement).[3] The plaintiff was employed by Darling Downs Security as a patrol officer.
(b)In the early hours of the morning of 9 April 2013, the plaintiff, in the course of his employment, went to the premises. He was with another officer employed by Darling Downs Security, John Tosi.
(c)At about 2.00am on 9 April 2013, and while the plaintiff was walking along the driveway of the premises, the plaintiff’s right foot stepped onto a “concrete embankment” (also referred to as a drain) that was located at the eastern side of a shed on the premises; the plaintiff slipped and fell after stepping onto the concrete embankment and suffered an injury to his right ankle (the incident).[4]
(d)As part of, or pursuant to, the agreement, Darling Downs Security had conducted a risk assessment of the premises on 16 January 2012 (at which time the premises were in materially the same condition as at 9 April 2013) which identified that the premises “can get dark in places” and noted the “corrective action required” was “carry your torch”.[5]
[3] [6] of the statement of claim; [6] of the second defendant’s defence; [6] of the first defendant’s defence.
[4] [9] of the statement of claim; [9] of the first defendant’s defence; [9] of the second defendant’s defence.
[5] [6] of the first defendant’s defence; [2] of the plaintiff’s reply to the first defendant’s defence.
The plaintiff’s case is that it was dark at the time of the incident and there was no artificial lighting in the vicinity of the concrete embankment.[6] He pleads that, “immediately preceding the incident”, he had not seen the concrete embankment; the presence of the concrete embankment was not then known to him, and was not then apparent to him; and the concrete embankment was not visible to him, because it was dark.[7]
[6] [10] of the statement of claim.
[7] [11] of the statement of claim.
In relation to the allegation that the concrete embankment “was not visible to him”:
(a)Downs Earthmoving says if that was so, it was because the plaintiff had failed to use his torch to illuminate his path of travel; and failed to heed instructions provided by his employer to do so;[8] and
(b)Darling Downs Security likewise says the concrete embankment was, or ought to have been visible to the plaintiff (either by virtue of his own torch, or Mr Tosi’s torch); and says, further, that on the basis of certain documents (the “first night brief” and a risk assessment) provided to the plaintiff, the presence of the concrete embankment ought to have been known to the plaintiff.[9]
[8] [11] of the first defendant’s defence.
[9] [11] of the second defendant’s defence.
The plaintiff pleads, in effect, that:
(a)he was using a torch – but that this did not illuminate the concrete embankment, because he was reasonably using his torch to scan the area at head height for possible threats such as an intruder; and
(b)although he was provided with the first night brief, he was not provided with the risk assessment and, in any event, neither of those documents provided any proper or adequate or timely instructions about the presence of the concrete embankment.[10]
[10][3] of the plaintiff’s reply to the first defendant’s defence; [2] and [3] of the plaintiff’s reply to the second defendant’s defence.
In so far as the occupier, Downs Earthmoving, is concerned, the plaintiff pleads that his injury was caused by its negligence by, in particular:
(e) failing to take any, or any reasonable measures to ensure that the concrete embankment was adequately lit so that persons, including the plaintiff, could see the concrete embankment;
(f) failing to give persons, including the plaintiff, any, or any adequate, notice or warning regarding the concrete embankment by way of verbal and/or written communication and/or signage and/or roping of the concrete embankment;
(g) failing to take any, or any reasonable measures to ensure that any defects in the driveway were remedied to render it safe for persons including the plaintiff;
(h) failing to install a steel grate, or take other steps to ensure that the concrete embankment did not create a potential hazard;
(i) failing to fence or cover or guard or barrier the concrete embankment in order to avoid injury being occasioned to persons, including the plaintiff, walking along the driveway.[11]
[11] [12] of the statement of claim.
Downs Earthmoving denies that, and says that its duty did not, as a matter of law, require it to take the steps alleged above, in circumstances where:
(a)the plaintiff was an experienced security guard;
(b)consequently, Downs Earthmoving was entitled to consider that the plaintiff was or ought to have been skilled in negotiating variable ground surfaces and potential footing hazards in night-dark conditions; and knew or ought to have known (including as a matter of common sense) to use his torch to check his path of travel in those conditions;
(c)the plaintiff was employed by a reputable and experienced security contractor engaged by Downs Earthmoving, which had conducted a risk assessment at the premises and identified the very risk of which the plaintiff now complains; and
(d)consequently, Downs Earthmoving was entitled to consider that the plaintiff would have been informed of the risk assessment; knew of the risk of which he now complains; would have been supplied with a torch; would have used his torch; and would have been trained (either by his employer, or prior to his employment) in the very activity he was undertaking, being negotiating unfamiliar outdoor surfaces in night-dark conditions.[12]
[12] [12] of the first defendant’s defence.
Although the plaintiff admits he was an experienced security guard, he says that his experience as such did not provide him with any particular skill in identifying and avoiding potential night time footing hazards of which he did not have previous knowledge.[13]
[13] [4(a)] of the plaintiff’s reply to the first defendant’s defence.
In so far as the employer, Darling Downs Security, is concerned, the plaintiff pleads that his injury was caused by its negligence by, in particular:
(d) failing to conduct a proper risk assessment in relation to the premises;
(e) failing to conduct a risk assessment in relation to the premises at night to understand the significance of the night time hazards;
(g) failing to request that the first defendant install security lighting at the premises;
(h)failing to ensure that the plaintiff was made aware of the presence of the concrete embankment;
(i) requiring, permitting or directing the plaintiff to perform the duties of his employment at the premises at night without any prior familiarisation to the premises.[14]
[14] [13] of the statement of claim. See also Plaintiff’s submissions at [37].
Darling Downs Security denies that and pleads that it did take adequate precautions for the safety of the plaintiff, namely, by:
(a)providing a MAG rechargeable torch;
(b)providing “an induction” to the plaintiff, and various documents (including “an induction” document and “Standard Operating Procedures document”) to the plaintiff when he commenced employment with Darling Downs Security; preparing a risk assessment for the premises, and a first night brief about the premises, both of which were provided to the plaintiff.[15]
[15] [13] of the second defendant’s defence.
The extent and consequences of the injury (otherwise agreed to be “a minimal retrocalcaneal bursitis to his right ankle”[16]) suffered by the plaintiff is in issue, as is the quantum of damages claimed, in particular for economic loss.
[16][15] of the second defendant’s defence; [14] of the first defendant’s defence; [15] of the statement of claim.
Both defendants also plead that any loss or damage suffered by the plaintiff was caused or contributed to by him failing to exercise reasonable care for his own safety (in particular on the basis that he failed to use his torch to check his vicinity and path of travel, failed to familiarise himself with the risk assessment and first night brief documents, and failed to comply with the instructions in those documents).
Each of the defendants also seek contribution from one another, under s 6 of the Law Reform Act 1995 (Qld).
Factual context – evidence and findings
The plaintiff is presently aged 27 (born December 1988), and was aged 24 at the time of the incident.
Plaintiff’s qualifications and employment history
The plaintiff completed high school to year 10. After leaving school, he initially pursued a career as an apprentice chef, but after two or three years, started working as an account manager for Macquarie Regional Radio Network, in Toowoomba. At the same time, he studied to become a security officer, and completed a certificate 3 in security operations.[17] He worked part time as a security officer from about 2009. After he finished working for Macquarie Regional Radio Network, he started working more as a security officer, employed by various companies, including Darling Downs Security,[18] in Toowoomba.
[17] T 1-18.36 – 1-19 (refers to certificate 2); but see 2-21 (clarifies as certificate 3).
[18]See exhibit 1, which summarises the various employment of the plaintiff from about July 2009 onwards. Also T 1-19.41 – 1-20.
He described his initial interest in working as a security officer as being on the basis of wanting “to gain experience in that industry to further open opportunities to become a police officer at some stage, or apply to become a police officer at some stage”, although he has not (either before or after the incident the subject of this proceeding) done anything to further that aspiration.[19] He said this was because, prior to the incident, he was not in any rush as he was enjoying his work in the security industry; and post the incident he does not think he could (physically) handle it.[20]
[19] T 1-50.5-.13.
[20] T 1-23.26-.38 and 1-24.1-.9.
He originally worked for Darling Downs Security from about late 2009[21] until about June 2012.[22] The plaintiff said he was initially employed by Darling Downs Security as a patrol officer, but by the time he left he was in a “split role”, working as a business development manager, as well as in the capacity of an armoured covert cash-in-transit officer.[23]
[21] T 2-138.24 (Mr Davie).
[22] Exhibit 1, p 2.
[23] T 2-17.38-.47.
The plaintiff left Darling Downs Security in mid-2012 to take up a position he was offered by Sydney Night Patrol (SNP), another security company, which was offering a “more lucrative income”, and an “opportunity to further develop [his] skills in the security industry”. He was employed as an account manager, for a particular client of SNP, the Brisbane City Council, to which SNP provided security services for “the council’s physical security sites”. He did not do patrol work. His role was “to manage staff, do rostering requirements for the relevant sites, ensure that staff were operating within the standard operating procedures, and also attend council meetings in regards to site facilities”. As part of his role, the plaintiff was responsible for ensuring that a risk assessment was done prior to any guard entering one of the Council’s sites (in the sense of requesting that they be done, as opposed to actually conducting the risk assessment) and he also reviewed the risk assessments once they had been done.[24] This job involved him moving to Brisbane.[25]
[24] T 1-22
[25] T 1-20.36-.41 and T 1-21.45.
The plaintiff finished his employment with SNP in January 2013. He explained that he left SNP because he was going through a relationship breakdown, and his then two young children were not getting to see him very often as he was living in Brisbane, so he decided that it was important for him to come home (to Toowoomba) and spend time with his children.[26]
[26] T 1-23.20-.24; 1-45.38 – 1-46.1.
After returning to Toowoomba in early 2013, he was re-employed by Darling Downs Security as a patrol officer, which involved checking a number of businesses every night to ensure their security (which he said could range from 100 to 130 checks per night; averaging 10 premises an hour over a 12 hour shift).[27]
[27] T 1-24.
He also worked for two other security businesses at this time, Ambush Security and Sargent Security.[28] With Sargent Security, he was a “static security officer” at Beef City, which he explained meant he was in an office there. As the plaintiff explained, he was employed on a casual basis by Darling Downs Security, so he was making up full time hours by working for other security providers as well.[29]
[28] Exhibit 1.
[29] T 1-44.
As to his return to working as a patrol officer in early 2013, although this was a “step backwards” in terms of his career progression, it suited him at the time, because it gave him the time to spend with his family during a difficult time.[30]
[30] T 2-72.21-.34.
He continued to work for Darling Downs Security until July 2013.[31] Following the incident, he had about 4-5 weeks off work. When he returned to work (which appears to have been in around mid-May 2013), he was given different duties, providing security at a shopping centre, saying that Adrian Carr, his then operations manager, told him he was doing that “because it would have been easier on my foot”.[32] He did that for about 4 months, but said he had difficulties because he was walking and standing for long periods of time, which caused pain in his ankle.[33]
[31]Exhibit 1 shows him finishing with Darling Downs Security on 30 September 2013; but also shows him starting with WIN Television on 22 July 2013. The plaintiff’s evidence was that he stopped doing work for Darling Downs Security when he started at WIN Television (T 1-46.9).
[32] T 1-33.21 – 1-34.5.
[33] T 1-34.7-.15.
In July 2013 he obtained employment with WIN Television, in Toowoomba, as an account manager (a sales role, selling television advertising to customers). He said he changed roles (to this position) because of the injury to his foot. He said he was sick of feeling pain in his ankle from walking around a shopping centre.[34]
[34] T 1-36.6-.25.
He worked for WIN Television until about February or March 2014, following which he took up another position with Wesfarmers General Insurance (now Insurance Australia Group), as an “area manager”, based in Brisbane,[35] where he remains employed. He moved to Brisbane because of this role, which also offered more money.[36] His gross income in this role was initially $72,100 per annum, plus superannuation.[37] It is currently around $79,000 per annum, including superannuation.[38] Regarding the move to Brisbane, he explained that the situation with his ex-partner had become more stable by this time, and there was a greater consensus about visitation with his children, which gave him the ability to move to Brisbane.[39]
[35] T 1-37.1-.8.
[36] T 1-46.33-.41.
[37] T 1-47.20-.30.
[38] T 1-48.41.
[39] T 1-46.39-.46.
He is studying for a diploma in insurance, which he said will give him opportunities for promotion in that field.[40] His evidence was that there is no reason why he will not receive promotions, in due course, in the future.[41]
[40] T 1-41.8-.18.
[41] T 2-58.11.
His income, both at WIN Television, and now at Insurance Australia Group, is more than he was earning as a security guard; and more than he would earn as a security officer.[42] For example, there was agreement that, at the time of his injury, he was earning $500 net per week.[43] Currently, his net weekly earnings are approximately $1,100.[44] Mr Davie, the owner and director of Darling Downs Security, said that, in his business, the usual range of salary for a full time security guard would be about $56,000 to $65,000 per annum.[45]
[42] T 2-57.31-.33.
[43] See exhibit 3.
[44] Exhibit 1, p 3; T 1-48.33.
[45] T 2-152.34 – 2-153.1.
The plaintiff’s evidence was that his job involves working Monday to Friday, and he would consider doing security work on the weekends, to earn extra money, but does not believe he can, due to his ankle injury. His evidence was that he thinks he could earn $200-$300 on the weekends doing this.[46] However, he has not applied for any jobs as a security officer, including as a static security officer.[47]
[46] T 1-40.30-.44.
[47] T 1-48.15-.24; 1-49.42.
The premises
The premises are located at 4 Rocla Court, Toowoomba, which is an industrial area. Downs Earthmoving owns the whole of the property, but leases out the front part, on which there is a large shed, to another business (Toowoomba Lube & Mechanical[48]). That shed directly adjoins another shed, to the rear of it, which is occupied by Downs Earthmoving for the purposes of its business and also, at this time, Mr Davage (the director and owner of Downs Earthmoving), who was living there as well.[49]
[48] T 2-102.25.
[49] Exhibit 14 (photos at the rear of the premises).
Looking at the premises from the street, there is a fence and a gate to enter the premises. Once on the premises, there is a concrete driveway along the left hand side, by which to access the rear of the premises, being the part occupied by Downs Earthmoving. The concrete driveway is about 4 metres wide.[50] There is a gate across the driveway about half way down, where the Toowoomba Lube & Mechanical shed meets the Downs Earthmoving shed.[51] On the left hand side of the front shed, occupied by Toowoomba Lube & Mechanical, there are four windows along the driveway.[52]
[50] T 2-18.42-.45.
[51] Exhibit 2, photographs 1 and 2.
[52] See below, the plaintiff describes falling down this drain, at the level of the 3rd window: T 1-28.
There is an area between the driveway, and this shed (before the gate) which is also concreted, and appears to be a drain (also described as a concrete embankment). The slope of the drain, from the driveway towards the shed, increases as you get closer to the gate.[53] The report of Mr O’Sullivan, relied upon by the plaintiff, contains some additional photographs, and measurements of the drain. Mr O’Sullivan recorded that, at the start of the drain, the incline is approximately 7º and that gradually increases to an angle of around 38º at the point where the plaintiff says the incident occurred (below the 3rd window).[54] On the opposite side of the driveway, there appears to be a large hedge/shrubbery. The gate opens from the hedge side.[55]
[53] This is apparent in exhibit 2, photographs 1 and 2.
[54] Exhibit 10 at p 5.
[55] T 2-40.35.
Mr Davage said that Downs Earthmoving has owned the property for 25-30 years, and the concrete driveway and drain was probably done “20 odd years ago”.[56] He explained that the “drain” is not actually a drain as such, but was built the way it is for erosion problems, because the building behind the shed occupied by Toowoomba Lube & Mechanical is higher. He also made the point that, when the middle gate is shut, it is not necessary to go near the drain, because the gate opens on the hedge side; and when it is open, it swings out towards the road, and comes down to about the second window.[57] Mr Davage also said “nobody has hurt themselves and it has been there for 20 odd years and nobody has ever had an accident”.[58] He said he did not think it was a hazard.[59]
[56] T 2-122.
[57] Referring to exhibit 2, photo 1; T 2-123.17-.37.
[58] T 2-126.21.
[59] T 2-127.36.
Mr Davie described the drain as “not an exceptional thing”, saying “it’s a stormwater drain. It’s on lots of sites”. He agreed that its presence involves a risk to an officer, losing his footing – but said “that’s why you use a torch and watch where you’re going”. He also noted that “it’s also not in your general walk path” its “off to one side”. He considered it was captured by the reference to “uneven ground” on the risk assessment.[60]
[60] T 1-171.9-.31.
There is no access to the rear of the property, from the right hand side of the shed occupied by Toowoomba Lube & Mechanical.[61]
[61] Exhibit 4 shows the right hand side, which is completely blocked off.
At the back of the premises, it seems there was often a lot of clutter and debris of various kinds around the place (including bits and pieces of machinery), the level of which was said to vary from time to time.[62] Mr Davage described “collecting junk” as his hobby.[63]
[62] See exhibit 14 (photographs); T 1-120 – 1-121 (Mr O’Sullivan); 2-19 (plaintiff); 2-167 (Mr Davie).
[63] T 2-101.44.
As at 9 April 2013, there was no operating lighting along the driveway on the left hand side of the premises.[64] I accept Mr Davage’s evidence that there was, at that time, a fluoro light installed towards the top of the Toowoomba Lube & Mechanical shed,[65] but the evidence does not support a finding that any such light was working, or on, when the plaintiff and John Tosi went to the premises on 9 April 2013. Subsequently, there have been 3 lights installed along the driveway, one on the Toowoomba Lube & Mechanical shed, and two on the Downs Earthmoving shed.[66] The cost of this was just under $2,000.[67] Mr Davage said the new light was installed because a prime mover parked there, but seemed to say it was “for security too”.[68] Mr Davage no longer engages security services.[69]
The agreement between Darling Downs Security and Downs Earthmoving
[64] T 1-54.5 (plaintiff);
[65]T 2-116.18-2-117.45. This is corroborated by the invoice, exhibit 19, which refers to the supply and installation of 3 lights along the eastern driveway, one of which is described as “a replacement of an existing fluoro”.
[66] These can be seen in exhibit 2, photograph 2.
[67] Exhibit 19.
[68] T 2-115.40 and 2-117.5-.8.
[69] T 2-131.47.
Mr Davage said he had previously, going back 15 years or more, had arrangements with other security companies. But at the time of this incident, there was an agreement with Darling Downs Security, which he said “they took over from somebody else originally”. According to Mr Davie’s evidence, Downs Earthmoving had previously been a client of “Lombards Security”,[70] and Darling Downs Security acquired the “patrol clients” from Lombards at some stage, including Downs Earthmoving.[71] There was no written agreement in evidence, but the agreement is apparent from the evidence of Mr Davage and Mr Davie, the evidence of payment of a monthly bill (around $300 per month),[72] and the “first night brief”.
[70] Exhibit 22 is the “Lombards Security brief sheet” relating to Downs Earthmoving.
[71] T 2-138 and 2-162 (Mr Davie)
[72] T 2-106. An example of which is exhibit 20
The arrangement between Downs Earthmoving and Darling Downs Security as described by Mr Davage was that a security officer was to come through the gates (the front gate, and the gate separating Toowoomba Lube & Mechanical’s premises from Downs Earthmoving’s premises), walk around the back, shine a torch, check the doors, and then leave.[73] Mr Davage described Toowoomba Lube & Mechanical as “nothing to do with me”, and he was not paying for its premises to be inspected.
[73] T 2-106.38 – 2-107.
In so far as Darling Downs Security is concerned, the arrangement is documented in the “first night brief”[74] (referred to below) which records that there were to be 3 security checks per night (on run 467) and 1 (if Saturday) or 2 (if Sunday or a public holiday) daytime checks (on run 82).
[74] Exhibit 5 (and, from the previous security provider, exhibit 22).
Mr Davie understood that it was only the part of the premises under the control of Down’s Earthmoving that was to be patrolled, although he seemed to say they would have a look at the front shed because it “was on the way”, and if someone broke in there, they could get into Mr Davage’s shed via an internal door.[75] He had elsewhere described checking the windows as you walk down the drive way, albeit that this is done “in a glance”.[76]
[75] T 2-165.5-.19.
[76] T 2-150.47.
The plaintiff said he was not aware of that limitation - he said understood he was to check the whole building.[77]
[77] T 1-53.4-.10.
Mr Davage said he had no experience in the security industry.[78]
[78] T 2-111.19.
Training
The plaintiff described some general training that he received in the course of completing his certificate 3 in security operations (including basic training in relation to the Criminal Code, defensive techniques, inspecting premises, how to deal with intoxicated persons, how to confront an offender; and a “basic outlay of what .. to do” in terms of opening gates, locking locks etc).[79]
[79] T 1-19.4-.18.
The plaintiff agreed that, not only on the Downs Earthmoving site, but any number of sites he may have to visit on any particular night, there would be hazards of various kinds that you need to keep a lookout for; and agreed that part of his training and experience is that the torch is constantly being used to be on the lookout for things on the ground, or things that you could fall over etc.[80]
[80] T 2-20.36-.47.
In relation to dangerous items that are on premises that could cause harm, he was asked whether he had specific training, or “common sense training”, to which he responded: “I guess it’s a bit of both, to be honest… when you’re given training in that regard, obviously they can’t give you examples of sites because there’s many sites. So it would be just a general training in regards to looking at the hazards”.[81] He also agreed that, with experience over time (noting that he commenced security work in 2009) a security officer develops a level of awareness of the risks and hazards that exist in security operations, which would be greater than the inexperienced, untrained, ordinary person.[82]
[81] T 2-21.23-.28.
[82] T 2-21.40 – 2-22.5.
Mr Tosi’s evidence was to a similar effect, saying that as a security officer, you enter upon any industrial site at night conscious that there are potential dangers everywhere, and said that being aware of potential dangers, and the need to keep a lookout, turn your torch on, be slow and careful, is something that does not exist in training, it is more common sense, something you learn on the job.[83]
[83] T 3-8.9-.21.
The plaintiff described learning practical skills whilst working for Darling Downs Security, although said training provided by Darling Downs Security was not based on giving you “knowledge as to how to be a security officer”, but rather information regarding the different premises you had to attend, and what was expected of you at that premises (for example, how many times a night to attend, which gates to go into etc).[84]
[84] T 1-19.20-.31.
The plaintiff described the patrol work at Darling Downs Security, as at February 2013, as being organised into four “runs”. He did not work on all the runs, and said he was not trained specifically on any of the runs. He said he was previously (when working there up to June 2012) trained on two runs (run 468 and run 467), but Downs Earthmoving was not on either of those.[85] It was not controversial that the plaintiff had received training at Darling Downs Security (in Oct 2009 and January 2010), but that this was not on a run that included Downs Earthmoving. The plaintiff said that training involved going on patrol for a few nights with another patrol officer, during which you would be trained on “what is required on the site”, in terms of what door needs to be checked or “carded”, what gate needs to be locked etc.[86] That was consistent with the evidence of Mr Davie.
[85]See also Mr Davie’s evidence at T 2-138 – 2-139, and exhibit 5, timetables for October 2009 (showing three occasions of training) and January 2010 (showing two occasions of training).
[86]T 1-25. A door or gate being “carded” meant that a business card would be inserted into the door, or placed on the padlock (by opening the padlock, and piercing the card onto the lock, so that it won’t fall off) of the gate, as proof of the security patrol officer having been there. T 1-57.
Otherwise, patrols were done by security officers on their own.[87]
[87] T 1-63.33; 1-65.43.
The plaintiff’s evidence was that when he returned to Darling Downs Security (in early 2013) he asked the operations manager, Adrian Carr, for training,[88] and “it was denied on the basis that I’d done it all before”.[89]
[88] T 1-53.27.
[89] T 1-53.30.
Mr Davie said that he could not recall the plaintiff asking to be re-trained. Mr Davie’s evidence was that the plaintiff had said he was trained by someone in Lombard Security, when he had worked for them. What Mr Davie said is:
“He … told us he was a patrol officer for Lombard’s and worked in that – in that area of town that Downs Earthmoving was in, and when we put him back on patrols, and I asked if he wanted to jump in at night and sit in with the guys. He goes, oh no, I’ve done six, seven with you and done the other clients at Lombard’s. With – with Lombard’s. I don’t need to be shown the ropes. I’m pretty sure I can figure it out. I’m not silly. So I let him go. He – he’s – he’s a lot quicker and sharper on the uptake than most patrol officers so I didn’t have any reason to doubt him. You know, if we do an alarm response, we’ve never been there before, but you still take your usual care and attention to details.”[90]
[90] T 2-166.31-.42 (some full stops inserted, where they do not appear in the transcript).
Mr Davie clarified that the plaintiff did not specifically say he was trained at Lombards for patrol work at Downs Earthmoving.[91] The plaintiff agreed he had previously worked for Lombard Security, but said he did not do patrol work for them.[92]
[91] T 2-172.23.
[92] T 2-60.31.
Documentation
The way that employees know what they are to do with each of the properties required to be inspected on a “run” is by reference to a document called the “first night brief”, which is prepared for each client, and which sets out how many calls (or visits) are required; and what type of service is to be provided.
The plaintiff accepted that he had seen or been provided with the “first night brief” for Downs Earthmoving,[93] prior to 9 April 2013; save that he said he could not recall the words “Site risk assessment completed. (Behind this brief)” being on the document when he had seen it.[94] The first night brief is dated 16 January 2013. Mr Davie’s evidence was that those words were definitely there, having regard to the date of the document.[95] The first night brief was kept in a “brief book”, in alphabetical order for all the clients on a particular run, which was in a bag like a laptop bag,[96] which would be taken by the patrol officer on their run.[97] Mr Davie said it was standard practice for the risk assessment to be put behind the first night brief in this folder.[98] Mr Tosi also said “every client has a risk assessment attached to its brief”.[99]
[93] Exhibit 5.
[94]T 1-55; 1-59.29 – 1-60.11; 2-76.22. His evidence in this regard is somewhat at odds with other evidence he gave, that he was not given any documentation by Darling Downs Security in relation to the Downs Earthmoving site, and that no documentation was available to him when he attended to assist John Tosi on the night in question: T 1-30.23-.27.
[95]T 2-144.33.
[96] T 2-144.45 – 2-145.5.
[97] T 2-145.36.
[98] T 2-145.7.
[99] T 3-8.30.
The plaintiff explained that you would check the first night brief on the first night you attended a particular site, and then review it subsequently only if you needed to update your memory on what had to be done.[100]
[100] T 1-56.10-.13.
In terms of what had to be done at Downs Earthmoving, the first night brief reads as follows:
“Semi internal checks. Checking for trespass, vandalism, fire or break + enter.
Cards to be used on accessible doors and pierce padlocks through cards, not rolled up in it.
Owner lives in back shed. Be sure to secure middle gate.
Site safety: be aware of uneven ground, slippery when wet, gets dark in places. (Debris)
Carry your torch, watch your footing slips trips and falls.
Semi residential, please be mindful of your noise and lights (Owner may be asleep onsite).
Site risk assessment completed. (Behind this brief).”
A “semi internal check” involves walking around the perimeter of the building, inside the fence line, but not actually entering inside the building.[101]
[101]In contrast, an external check would be where the security officer just stops outside the fence line, has a look, and drives on. T 1-56 (plaintiff). See also T 2-142.15-.30 (Mr Davie).
The plaintiff said he was not shown the risk assessment. He agreed he could have asked for the risk assessment, but did not do so.[102]
[102] T 1-53.12-.27.
The risk assessment is dated 16 January 2012.[103] Relevantly, the “issues identified” and corresponding “corrective action required” are:
“some surfaces are flat and slippery when wet” – “correct foot wear required”
“can get dark in places” – “carry your torch”
“debris and trip hazards” – “be aware, use caution, watch your footing, torch required”.
[103] Exhibit 11.
The risk assessment rated risks according to a scale, from something which is “minor” and “extremely unlikely to occur” (rated 1) up to something which is “disastrous” and “almost certainly will occur” (rated 25). The first issue above (some surfaces are flat and slippery when wet) was given a score of 2 (minor, unlikely to occur) and the other two issues were given a score of 4 (minor, likely to occur).[104]
[104] Exhibit 11.
There were two other documents forming part of the records of Darling Downs Security, one called “Team Member Induction”[105] and the other called “Standard Operating Procedures”.[106] It was not in dispute that the plaintiff wrote both of those documents, although there was some doubt about when he did that. His evidence was that it was when he was employed as a “business development manager” for Darling Downs Security (prior to August 2012, when he took up the position with SNP).[107] Mr Davie’s evidence was of the plaintiff writing these documents “on his second employment period with us”, after he had worked for SNP;[108] although he had earlier said he thought they were prepared in 2012.[109] In any event, the timing is not a critical issue – I proceed on the basis that it was either later in 2012, or early in 2013.
[105] Exhibit 16.
[106] Exhibit 12.
[107] T 2-67.34 – 2-68.17.
[108] T 2-148.39 – 2-149.11.
[109] T 2-146.27.
The Team Member Induction document includes an “induction checklist” (p 7), one of the items on which is “Tour all Sites”. By reference to this, the plaintiff agreed he knew it was important to be familiar with all of the sites.[110]
[110] T 2-68.5.
The Standard Operating Procedures document includes a section headed “operational responsibilities and procedures” (p 15), one section of which is “3.5 Knowing the Client’s Premises”, which includes the following: “In order to carry out the protection and prevention duties efficiently, Security officers should acquire knowledge of and be thoroughly familiar with the premises, including its layout and facilities, ie they should know …the general layout of the client premises, location of various buildings, departments and offices and the location of light and power switches”.
On the basis of Mr Davie’s and Mr Tosi’s evidence I find that the plaintiff is mistaken in his recollection, and that the words he disputes were on the first night brief, and that the risk assessment was behind that document in the folder which would have been available to him in April 2013. If (as he says) he did not see the risk assessment, I nonetheless find that he ought to have done so, as it was available to him.
In so far as training is concerned, I do not accept the plaintiff’s evidence of his request for training being denied. It must be acknowledged that Adrian Carr did not give evidence; but nor were any questions asked about his whereabouts, for example, whether he continues to be employed by the second defendant, and so I would be cautious to draw any particular inference from his absence. But in any event, on the basis of Mr Davie’s evidence, which I found to be credible and reliable, and also on the basis of the plaintiff’s own evidence (including of the role he had at SNP; of the circumstances in which he returned to Darling Downs Security in early 2013 and that being a step backwards; and of him being the author of the Induction and Standard Operating Procedures documents), I consider it implausible that the plaintiff would have requested training. The plaintiff was plainly experienced, both “on the ground” in terms of patrol work, as well as in matters of risk assessment (at least in terms of the need for them, if not the preparation of them), and general operating procedures concerning security patrol work. I consider what Mr Davie described to be more plausible, in all of the circumstances – that the plaintiff did not think he needed to be “shown the ropes” again.
Risk assessment process
In relation to the risk assessment, Mr Davie said the purpose of that was to assess whether a site was safe enough to actually work on. He said if there was “anything that was dangerous that can be changed”, they would talk to “the key holder or the owner and have them rectify it so it was a safer workplace for our guys”.[111] As described by Mr Davie, the risk assessment would not involve the client, save where a risk has been identified that they go back to the client and ask them to rectify.[112] For this risk assessment process, he described using a guideline that he borrowed from one used by Chubb. He agreed that, in undertaking the risk assessment and, relevantly, determining what, if anything, to go back to the client about, there is a subjective determination made by his company, based on its skill set and experience (within the security industry) about that.[113] He said that did happen from time to time – that is, going back to a client and asking for something to be rectified. He said the most common example of something they ask a client to fix up is where they leave hoses and powerlines across walkways.[114] He said he had never had a client refuse to rectify something.[115] He also said it is an ongoing process, so the patrol officers are also asked to provide feedback, if they identify any risks in the course of doing their patrols.[116]
[111] T 2-145.24-.31.
[112] T 2-157.38.
[113] T 2-155.40.
[114] T 2-155.42 - 2-156.2.
[115] T 2-157.5.
[116] T 2-156; 2-158.
In relation to Downs Earthmoving, Mr Davie said there had been no complaints coming back from his staff about any problems at the premises.[117] In this regard, I note Mr Tosi’s evidence, referred to below, that he had fallen down the drain/embankment himself at some stage – but it may be inferred from Mr Davie’s evidence that Mr Tosi had not, as a result of that, identified it as a risk to his employer.
[117] T 2-158.27.
Mr Davie also agreed that the very nature of security work, going to industrial sites, is that there are all sorts of potential hazards “for the non-vigilant or non-trained security officer” and that, in making a risk assessment, he also works on the basis that these are trained security officers who are going onto the sites (not untrained, inexperienced non-security guards).
Mr Davie confirmed that Downs Earthmoving had not been approached regarding any deficiencies, in terms of lighting or anything of that kind, at the site (other than perhaps a “dodgy lock or something like that”).[118] But when it was put to Mr Davie that it would be far preferable for the premises to have had artificial lighting down the driveway, for the purposes of security patrol, Mr Davie said “Yeah. It’d be preferable for everything to be lit up, but is it practical? That’s – you know, they don’t build it just for us. We have to work with what we’ve got, sadly”.[119]
[118] T 2-170.4-.10.
[119] T 2-169.45 – 2-170.2.
Mr Davie agreed that a security officer attending the premises would be heavily reliant on a torch.[120] It was uncontroversial that the plaintiff was provided with a torch by Darling Downs Security (a rechargeable Maglite).[121] Although there were questions directed to Mr Tosi and Mr Davie about the effectiveness of different kinds of torches, in terms of whether they would be expected to illuminate the drain, on balance I find that the effect of their evidence is that the torch provided by Darling Downs Security to its staff (including the plaintiff) would have, if being pointed straight ahead as the officer was walking up the driveway, illuminated the driveway, including the drain.[122] Although the plaintiff seemed to indicate he was using a “narrow-beam torch”,[123] it was not clear whether that was a different torch to the one he was supplied by Darling Downs Security, or whether it was a torch with an adjustable beam, or whether that was in the context of his evidence of shining the torch directly into the window on this particular occasion. His evidence in this regard does not persuade me against the finding just referred to.
[120] T 2-169.42.
[121] T 2-149.20-.41.
[122] See, for example, T 3-3 (Mr Tosi); 2-149, 2-151 and 2-168 (Mr Davie).
[123] T 2-41.
Mr Davie said all sites have a certain level of risk, saying no site ever has a clean bill of health, but said the Downs Earthmoving site had a “low level”. This was in the context of agreeing with the proposition, in essence, that if his company does not identify anything to the client, the client can assume that the security provider has brought its own expertise and skill to the assessment and are satisfied it is safe to go on.[124]
[124] T 2-157.41-.45.
Plaintiff’s knowledge of the premises
The plaintiff acknowledged that he had been to Downs Earthmoving’s premises prior to 9 April, but could not recall how many times. He said he had driven past it during the day, but could not recall entering the premises during the day.[125]
[125] T 1-30.7-.21.
Patrol rosters and log sheets produced by Darling Downs Security[126] showed that the plaintiff had attended at Downs Earthmoving on some occasions from December 2011 to May 2012, and then on a number of occasions in March and April 2013.
[126] Exhibit 15; and exhibit 26 (aide to understanding exhibit 15).
In so far as those records indicated these attendances were during the day,[127] the plaintiff said that would usually involve just an external drive by, because Mr Davage lived on the site, and if you attended on a weekend he was often working onsite, in which case “we would just make our presence known to Mr Davage and continue on”.[128]
[127] For example, 26 December 2011.
[128] T 1-65.
His evidence was also to the effect that where, on a log sheet, there is an entry for an attendance at Downs Earthmoving at a particular time, followed by an attendance at another site very shortly after that (a few minutes), that would indicate that he did not get out of the car and actually conduct an inspection of the premises, but rather that he just stopped outside the gate, saw that the owner was on site (either waving at them if the owner saw them, or if not, recording OS on the log sheet, in case the owner checked up later on[129]), and kept going.[130]
[129] T 2-29 – 2-30.
[130] See, for example, at T 2-26 – 2-27.
This explanation applied, on the plaintiff’s evidence, to both the day time attendances logged on 26 January 2012; one of the day time attendances on 6 April 2012 (the other he said he would have gone into the premises); one of the day time attendances on 7 May 2012 (the other attendance he would have conducted a check); the one day time attendance on 10 March 2013; all three night time attendances on 21 March 2013 and 29 March 2013; two of the night time attendances on 6 April 2013 (a third did involve a check); and two of the night time attendances on 7 April 2013 (a third did involve a check). He agreed he did conduct three night time checks on 30 March 2013.[131]
[131] See exhibit 15, exhibit 26; and the plaintiff’s evidence at T 2-24.31 - 2-34.30.
Mr Davie said the patrol officer was expected, on all occasions to inspect the premises, although said if the owner was out in the yard working, you would pop in and say hello, but not walk around and check the doors while he was there. But if the lights were on in his unit where he stayed the officers were expected to walk around.[132]
[132] T 2-142.32 – 2-143.11.
Mr Davage’s evidence was that the security officers would always come in, and said when he was there, they came in and he used to talk to them.[133]
[133] T 2-107.25 and 2-111.1-.8.
There is plainly some inconsistency between the employer’s expectation, as well as the client’s, and what the plaintiff says he did. One might speculate that there were some short cuts taken, given the number of premises which were required to be checked in the course of a shift (up to 10 per hour in a 12 hour shift). But even accepting the plaintiff’s analysis, it can be seen that he had been to the Downs Earthmoving premises during the day in April and May 2012 and at night on 30 March, and 6 and 7 April (so within 2 weeks prior to the incident).
The plaintiff’s evidence seemed to be that, as at 9 April 2013, although he had some awareness of a drain, the depth of it was not clear to him, or the fact that the incline increased as it went along the building.[134] He referred to being conscious of what he called a “cement block” sitting at the commencement of the drain, which was “on a little bit of an incline”.[135] As it turns out, this was a tool box.[136]
[134]T 2-39 – cf and cn 2-39.2 (where the plaintiff says it is not his evidence that he had no idea the drain existed as at 9 April); 2-39.13 (where he says he wasn’t aware of the drain) and 2-40.15-.18. Also, 2-55.
[135] Depicted in photograph 3, of exhibit 2 (which was taken by the plaintiff).
[136] T 2-103.
Mr Davie, who had also worked as a security patrol officer at the Downs Earthmoving site, said that, in his experience, the “drain” is visible when walking up the driveway, using a torch.[137]
[137] T 2-151.
Mr Tosi commenced employment as a security officer in about January or February 2011. He had been attending the Downs Earthmoving site from the time he started working there.[138] He only ever attended at night. He said he was very aware of the drain because he had fallen down it himself.[139] He explained that there was a “severe drop on the side of the roadway” (by which I took him to mean driveway) and trucks would often park in that driveway, so you did have to be careful with your footing alongside the driveway.[140] He said if there was no truck there, and he was walking up the middle of the driveway, shining his torch, he would be able to see the embankment. He referred to doing that run for 7 months continually[141] (although it was not clear when that was, before or after the incident[142]).
[138] T 3-2.21 – 3-3.2.
[139] T 3-7.3.
[140]T 3-3.5 – 9 (there is an error in the transcript at .8, where the word “didn’t” ought to read “did”, according to my understanding of Mr Tosi’s evidence).
[141] T 3-6.22.
[142] Cf T 3-9.24 which could suggest it was before.
In terms of plaintiff’s awareness of the drain, although there is some doubt about how frequently he actually set foot on the premises, including during the day, as recently as 30 March 2013 he had been there and done 3 inspections at night, as well as an inspection on 6 and 7 April 2013. Both Mr Davie and Mr Tosie said the drain was visible using a torch, at night. It is more probable than not, in my view, that the plaintiff had, in the course of his previous inspections, become aware of the presence of the drain, and that it was not of a uniform shape or depth. However, what is also probable is that, due to the manner in which he routinely carried out his inspections (referred to below) he had no need to go near that drain, and so did not register it as any form of hazard or risk to particularly guard against.
The “standard routine” when attending at Downs Earthmoving
In terms of what his standard routine was, when attending the Downs Earthmoving premises, the plaintiff said:
“… when I was doing the checks, my routine was to walk into the premises, walk around the side to the … gate with no access [ie the right hand side], come back around, walk to the left then. We take wide berths on purpose. Obviously we don’t want to be walking – or we’re trained not to walk close to the building and in and around a corner like that in case there is someone waiting there in … ambush to attack you. So on purpose we do take wide berths to, you know, get around a corner. My routine was to come around the corner, then walk towards the left side of the driveway [near the hedge on the side[143]]. As I was walking up the driveway I’d shine my torch on the window, just to ensure that none of them were open. I didn’t check them physically, and then I would go to the left-hand side of the gate and unlock the gate and enter the premises”.[144]
[143] T 2-40.36-.41.
[144] T 2-37.1-.31; also 2-56.
When asked if he would look in the windows, he said “often I would”.[145] He said he would then go through that (middle gate) – which was often hard, because of machinery parked there – to the back of the building, and then to the right, where there was another shed, and a roller door and a sliding door. He said “[w]e didn’t go right out the back of Mr Davage’s property, because there was too much out there. Old Cars. Old bits of machinery, and it was too dangerous to sort of walk in and try and manoeuvre your way around it”. But there was a kind of “pathway” though the debris, which the security officers would go along, in order to check that the doors to the shed at the back were secured and locked.[146] After doing the semi-internal inspection around the back of the building, he would make his way back out, locking both gates.[147]
[145]See also at T 2-36 (“on most occasions” he said he would shine his torch light on the windows as he walked up the driveway).
[146] T 2-19.26 - 2-20.20.
[147] T 1-65 – 1-67. A similar process was described by Mr Davie: T 2-150 – 2-151.
What happened on 9 April 2013?
The plaintiff said he was working a shift as a patrol officer on this night, although could not remember which run he was assigned to (but it was not the run which included Downs Earthmoving). He said he received a phone call at about 2am from John Tosi, who was at Downs’ Earthmoving’s premises, and who the plaintiff said “told me that there was an alarm light that was illuminated and it was flashing. He told me that he would like – would require some backup for the site as he believed there may be an offender on site, as we were advised previously that there had been break and enters to the site”. Following this, the plaintiff said he “attended to the site to assist John with securing the site”.[148]
[148] T 1-26.40 – 1-27.7.
He said when he first arrived at the premises, he saw John standing at the front gate, so he pulled up (his car) behind him and got out and spoke to him. There was no lighting around the premises. He and John opened the gate [I infer, the front gate, on the street] and walked inside. He said “[w]e secured the front of the building and then we proceeded to walk around the side of the building, on the left-hand side” to head up towards the gate [I infer, the gate which is half way up the driveway, marking the entry to the premises occupied by Downs Earthmoving]. He said they “were looking for visible signs of forced entry”, “with our torch”.[149]
[149] T 1-26.
The plaintiff went on to say that:
“… due to the alarm light being illuminated, we had suspicion that there was someone on site. We then started – the actual windows of the Downs Earthmoving site were tinted on that side. So we had to walk fairly closely towards that side of the building to get our lights through the window. As – as I was walking, I was walking up to about the third window, at which time I tripped and fell down the side of the embankment.”[150]
[150] T 1-26.43 – 1-27.2.
He said it was his right foot that slipped down the side of the drain, curving in as it went, and his left leg “sort of just curled up as I fell down” and “I ended up landing on my backside”.[151]
[151] T 1-27.38 – 1-28.3.
He said he was shining his torch through each of the windows, first, second and third, along the left hand side of the building, “seeing if there were offenders on site”. As he did this, he said John Tosi was “walking behind me on my left-hand side”. He could not recall if John Tosi had his torch on.[152]
[152] T 1-27.8-.36.
The plaintiff said it was “very dark” on the driveway.[153]
[153] T 1-28.45.
The plaintiff described what he was doing on this occasion as being different from his usual routine, because he was “in a guarded position”, being “of the belief that there is an intruder inside”. For that reason, he came closer to the windows on the left side of the shed than he normally would, on a routine check.
There was evidence that there had been a break in at Downs Earthmoving, a couple of nights earlier.[154] Mr Davage gave evidence of getting to the premises in the morning, and finding broken glass near the middle gate, which he said was from a window of one of the trucks in the yard. He also referred to his shed being broken into, and both the shed and the truck being ransacked.[155] Mr Davage said he was not aware of any other break-in, on the night the plaintiff was injured (saying he found out about the plaintiff being injured, later on, in a letter from solicitors).[156]
[154] T 2-35.1-.14 (plaintiff). See also exhibit 21 (Mr Davie’s evidence at 2-159 – 2-160).
[155] T 2-108.
[156] T 2-110.
The version of events which the plaintiff described to Mr O’Sullivan, an ergonomist retained to provide an expert opinion to the court,[157] differed in some material respects to his evidence at trial. In particular:
(a)Mr O’Sullivan recorded that: “While the other security guard when (sic, went) around the right side of the building [the plaintiff] walked up the left side in order to shine his torch in through the windows and check for intruders. The left side of the building was in complete darkness, due to lack of lighting, and Mr Humphries was focused on looking in through the windows while holding the torch at shoulder level in a stab type of grip.” (p 4)
In fact, the other security guard (John Tosi) was with the plaintiff, walking up the left side of the building.[158] In relation to this, Mr O’Sullivan said this could have an effect on the conclusions in his report, but it would depend on where the other person was, and whether they were in a position, with their torch, to help indicate the presence of the drain.[159]
(b)Mr O’Sullivan recorded that: “In the few previous visits to the site during routine inspections, Mr Humphries had walked around the right side of the building and back down the left side near the fence line. There had not been any lighting on that side of the building and Mr Humphries had never detected the drain in question…” and “The normal inspections involved heading around the right side, checking doors on the way, continuing around the rear of the building and then coming back down the left side …” (pp 4-5)
In fact, it is impossible to walk around the right side of the building (as is apparent from exhibit 4). But Mr O’Sullivan was very clear in his oral evidence that this is what the plaintiff told him.[160]
[157] Exhibit 10, report dated 20 April 2015.
[158] See paragraph [88] above; also 2-45.18.
[159] T 1-105.8-.20.
[160] T 1-108; 1-115.7-.17.
Past economic loss
I would assess the plaintiff’s past economic loss at no more than 5 weeks (being the time taken off work after the injury), at his then rate of pay, which was agreed to be $500 pet per week. This amounts to $2,500, to which interest and superannuation would also have to be added.
For the reasons that I will address in relation to the claim for future economic loss, I do not consider it has been established that the injury has resulted in any diminution of the plaintiff’s earning capacity, nor, in any event, that he has suffered any loss of earnings, such that I would not have awarded the additional amount he claims by way of past economic loss.
Future economic loss
For the purposes of this analysis, I do not distinguish between the common law principles (applicable to the claim against the first defendant) and the position under s 306J of the WCRA (applicable to the claim against the second defendant) on the basis that the latter did not alter the common law test.[271]
[271] See, eg, Vowles v Osgood [2012] QSC 82 at [55] per McMeekin J.
The plaintiff’s claim for economic loss (both in the past and the future) is advanced on the basis that, as a result of the negligence-caused injury to his ankle, his earning capacity has been diminished, because he is no longer able to work as a security guard, which he says he would have done in the past, and in the future, on the weekend, to supplement his income.
I gratefully adopt the following summary of the relevant principles, from the reasons of White JA in Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [48]-[50]:[272]:
[272]Although her Honour was in the minority as to the result in that case, the general principles summarised by her Honour were not called into question by the majority’s reasoning.
“[48] In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:
‘… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.’
That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:[273]
[273] (1995) 182 CLR 1.
‘A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life. It is that “the diminution of … earning capacity is or may be productive of financial loss.”’
[49]In Nichols v Curtis[274] Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:
‘The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.’
[50] His Honour continued:
“Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity has been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.’”[275]
[274] [2010] QCA 303.
[275] Emphasis added. Footnotes omitted.
I note that Fraser JA went on to say, immediately after the passage just quoted, that “[t]here was no error in the primary judge’s observation in paragraph 39 of the reasons that the applicant did not discharge her onus of proving that her incapacity to do heavy work caused her economic loss merely by proof of that impaired capacity itself.” In Nichols v Curtis, however, the Court of Appeal took a different view about that evidentiary issue.
In my view, for the following reasons, the plaintiff has not proved, on the balance of probability, that his earning capacity has been diminished because of the ankle injury:
(a)The medical evidence of Dr Saxby does not support such a finding – Dr Saxby’s opinion was that he did not think the injury should adversely affect his ability to work as a security officer.
(b)In so far as Dr Gamboa expressed a different view, I have preferred the evidence of Dr Saxby about the extent and consequences of the injury but, in any event, note that Dr Gambaro’s view is briefly expressed and appears to reflect what the plaintiff told him (that he struggled with his previous occupational duties as a security officer), as opposed to an objective analysis of capacity.
(c)Prior to the present incident, the plaintiff was under medical advice to avoid one aspect of security work, crowd control work, due to his head injury.
(d)I am not satisfied on the balance of probability that the mild ankle injury sustained by the plaintiff is such as to prevent him, should he wish to do so, working as a security officer, in some capacity, on the weekends. Even Ms Flynn, the occupational therapist, whose opinion about capacity aligned with Dr Gamboa’s, acknowledged that the plaintiff would be capable of doing security work that did not involve prolonged standing, provided he has the opportunity to alternate between sitting and standing regularly.
(e)In that regard, it was apparent from the evidence that the nature and scope of security work varies widely, and would include “static” security work, which would not involve prolonged standing or walking. The onus is on the plaintiff to prove his loss of capacity, and resultant loss of earnings. He has failed to lead (for example) any evidence about enquiries he has made about obtaining weekend security work; what that work would have entailed; why he would be physically prevented from doing that work, because of his ankle injury (and not some other injury, for example, his previous head injury, or his subsequent back pain/trochanteric bursitis); whether other security work, for which he would be physically capable, would be available on weekends. These examples are apart from the other evidence that might also have been expected, of having applied for and been rejected for such work; or having tried and failed to obtain such work, in each case as a result of his ankle injury.
(f)In so far as his previous aspiration regarding joining the police is concerned, I do not consider that the plaintiff has established any real prospect that he would have done that, or that it would have resulted in him earning more money. The evidence in fact was to the contrary.[276]
[276] See T 2-58.
In addition, I am also not satisfied that, even if the plaintiff had established an impaired capacity, for security patrol work, as a result of his ankle injury, that that has been productive of financial loss. As the plaintiff’s work history reveals, prior to February 2013, he had already embarked on a different career path, in an administrative / managerial role. He took a temporary step back, to security patrol work, at a time when his family circumstances were difficult. But once those circumstances were resolved, he returned to administrative / managerial work, and has successfully continued on that path. The evidence is to the effect that he presently earns more than double what he was earning as a security patrol officer at the time of the incident; considerably more than he could ever have earned as a security patrol officer; and that there is every expectation that he will advance and be promoted in the future, with attendant increases in income. He has demonstrated an earning capacity far in excess of that which he was earning at the time of this incident. His earning capacity in that regard is entirely unaffected by the ankle injury. In those circumstances, and having regard also to his family circumstances, I regard it as entirely speculative that he might have looked to do extra work, on the weekends, as a security guard; such that I do not consider the principle in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 to be engaged here.
But in any event, for the reasons already outlined, I am in the first instance not satisfied the plaintiff’s earning capacity has been impaired, as a result of the ankle injury.
Future expenses
I do not consider that the plaintiff has established his claim for the cost of domestic assistance, in terms of cleaning, lawn mowing or car cleaning. I take into account the evidence of Ms Stanley, Ms Ware, and Dr Saxby’s opinion, in this regard. The evidence as to the nature and extent of his injury does not support the claim; and in addition no evidence has been adduced to support the incurring of any such expenses to date.
It may be fair to include a modest amount for the cost of ongoing, occasional anti-inflammatories or analgesics, and I accept the defendants’ submission that an amount of $500 is appropriate.
I do not accept that there is any future treatment required, or established on the evidence. The plaintiff has not consulted his GP, since November 2013 about his ankle; and Dr Saxby says no further treatment is required.
Out of pocket expenses
The out of pocket expenses would include amounts referred to on the WorkCover payments/recoveries history,[277] not including the two amounts paid to Wolfgang Seckler Pty Ltd, for which there was no evidence. This seems to leave an amount of $2,531.
[277] Exhibit 25.
I do not accept the plaintiff’s claim regarding past expenses incurred on car cleaning, lawn moving and domestic cleaning, in the absence of any evidence of such payments (apart from the conclusion already expressed about whether the incurring of such costs has been established as causally related to the ankle injury).
It may be accepted that the plaintiff would have incurred expenses for analgesics and anti-inflammatories in the past. But again, without any evidence of such expenses, and bearing in mind the plaintiff has had other experiences in the past (his back pain) which may well have seen him incur the cost of such expenses, I would have allowed no more than $500.00
Contributory negligence
Although it is customary, notwithstanding an unfavourable conclusion on the question of liability, to address quantum, there is, in my view, necessarily an inevitable artificiality in addressing matters such as contributory negligence (and apportionment) in such circumstances, because in truth, a properly considered finding on contributory negligence would have to take account of the actual findings giving rise to liability on the part of a defendant (that is, what action, or omission, on the part of the defendant gave rise to the finding of liability).
With that qualification, I will record that, had I formed a different view on liability, I would have found that the plaintiff failed to take reasonable care for his own safety, which contributed to his injury. The plaintiff is an experienced security patrol officer; cognisant of the need to be vigilant about the possibility of unseen hazards on industrial premises that he patrols at night, in the dark, and the need to use his torch constantly to be on the lookout for such things.[278] He was provided with a torch by his employer, and instructed to use it. Reasonable care for his own safety required that he use his torch, appropriately, to illuminate his path of travel through the premises. He failed to do that – distracted as I find he was by looking intently in through the window of the front shed, in a manner which was not consistent with how security inspections were routinely conducted on the premises.
[278]See paragraphs [45] and [46] above.
But the extent of apportionment which would be appropriate would depend on:
(a)the findings made about liability, of each defendant – that is, on what basis they were (had I done so) found to have breached their duty to the plaintiff; and
(b)the different duties owed by each of the defendants – the relevant principles in relation to contributory negligence in the context of an employer / employee relationship[279] being different to those in relation to occupier / entrant; and
(c)in those contexts, conclusions reached about the causative effect of the plaintiff’s failure to use reasonable care for his own safety on the occurrence of the injury.
[279]The principles were recently summarised in Kennedy v Queensland Alumina Ltd [2015] QSC 317 at [85]-[88], including by reference to s 305H of the WCRA.
In a global sense, I would regard the plaintiff’s failure to use reasonable care as requiring him to bear the majority of the responsibility for his injury, in so far as the first defendant, Downs Earthmoving, is concerned. In that regard, I would regard the submission on behalf of the first defendant, that the plaintiff bear 66% to 80% as a fair one, resulting in a finding of perhaps 75%.
In so far as the second defendant, Darling Downs Security is concerned, there are different considerations, having regard to the non-delegable duty owed by the employer. Nevertheless, I would regard the plaintiff’s conduct on 9 April 2013 as amounting to more than “mere inadvertence, inattention or misjudgement”, and that in terms of s 305H(1) he failed to comply with the instruction in the first night brief (and the risk assessment) to use his torch and watch his footing (s 305H(1)(a)); failed to use his torch in a way that was designed to reduce his exposure to injury – that is, by illuminating where he was walking (s 305H(1)(c)); and, in undertaking the exercise that he was with Mr Tosi on the morning in question, failed to take account of the obvious risk that if he did not use his torch to look where he was going, he might fall (s 305H(1)(f)).
In those circumstances, had I found the employer breached its duty of care to the plaintiff, for example, by failing to bring the drain to the attention of the plaintiff, either in the form of the first night brief/risk assessment, or familiarisation/training, I would consider that the plaintiff ought to bear a reasonable amount, but less than half the responsibility for his injury (say 30%).
Apportionment
Lastly, I will record that as between the defendants, if I had found them both liable for the injury, I would have accepted the submission on behalf of the first defendant, that an appropriate apportionment would be 80% to the second defendant/employer and 20% to the first defendant/occupier, for the reasons outlined in summary in [82] of the first defendant’s submissions.
Orders
For the foregoing reasons, the plaintiff’s claim is dismissed as against the first and second defendants. There will be judgment for the defendants. I will hear the parties as to costs.
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