Judith Ann Herbig v Boral Windows Pty Ltd No. SCGRG 92/2103 Judgment No. 3927 Number of Pages 8 Negligence

[1993] SASC 3927

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), BOLLEN(2) AND MILLHOUSE(3) JJ

CWDS
Negligence - Contributory Negligence - Employer's Liability - factory accident - appellant stood on a pile of aluminium extrusions to prevent a fellow employee from putting an extrusion in a full scrap crate - the fellow employee pulled on an extrusion thus disturbing the base on which the appellant stood causing the appellant to fall and break an ankle - finding of contributory negligence against the appellant set aside - appellant could not be expected to have foreseen the conduct of the fellow employee. March v E and M H Stramare Pty Ltd and Anor (1991) 171 CLR 506, distinguished.

HRNG ADELAIDE, 8 April 1993 #DATE 13:5:1993
Counsel for appellant:     Mr W P Boucaut
Solicitors for appellant:    Moloney and Partners
Counsel for respondent:     Mr R W Evans
Solicitors for respondent: Ross and McCarthy

ORDER
Appeal dismissed.

JUDGE1 MOHR J The appellant was employed as a process worker by the respondent. Her duties were to place aluminium extrusions under a stretcher to straighten them and then cut them into the required lengths and then place them in the required bin. 2. On 2nd June 1988 the appellant was working on night shift. At about 11.30 p.m. a fellow employee, one Carr, approached her. He had a piece of scrap aluminium extrusion about 6 metres in length. He told the appellant that he intended to place it in a scrap bin which was eventually to be lifted away by means of an overhead crane. The appellant apprehended that the bin was already too full and that if Carr placed the piece of extrusion in it the result may have been that it would fall as the bin was lifted, to create a danger. She told Carr that the bin was already too full. According to her evidence on being told not to put the piece of extrusion in the bin Carr said "Yes, I am". The appellant replied "No you're not. Its too full". Carr replied "Yes I am". By that time Carr had the piece of extrusion on the floor and the appellant said "No you're not" and thereupon stepped on one end of the metal with both feet. Carr then picked up the other end and gave it a tug. The appellant fell over and in consequence suffered an injury to her ankle. 3. The appellant's attitude and expectation when she stood on the piece of metal was that Carr would accept what she had said and not proceed to touch the metal again. She looked away. 4. The learned trial Judge found that although Carr, who did not give evidence, did not intend any injury to the appellant nevertheless it was plainly foreseeable that by doing what he did it that he was exposing the plaintiff to a risk of injury. 5. The only question remaining was whether the plaintiff had been guilty of contributory negligence. The finding was that she had been guilty of contributory negligence and she was held to have contributed to her own injury to the extent of 30 percent. 6. It is this finding which is the subject of the appeal. 7. In her judgment her Honour dealt with the question in this way. She said:-
    "It is clear that the actions of both the plaintiff and
    Carr were foolish. The plaintiff's action in standing
    on the scrap aluminium extrusion was an action performed
    in the heat of the moment. I am satisfied that she did
    not apply her mind to the possible consequences of her
    actions. As she said she thought that Carr would accept
    her direction and leave. Nevertheless I am satisfied
    that in behaving as she did the plaintiff was negligent.
    Her act of standing on the scrap metal was deliberate.
    It was not inadvertent and the risk of injury by falling
    therefrom even without Carr's intervention was
    foreseeable. She must therefore take some
    responsibility for the injury which occurred." 8. In my opinion the foreseeable risk of a fall from piece of metal without Carr's intervention was irrelevant. The question was whether in the circumstances the appellant should have foreseen that in the situation that had arisen Carr would in some way go ahead with his expressed intention of placing the piece of metal in the scrap bin. 9. From the evidence it was clear that neither had authority over the other. It is also clear that the exchange between the two was in the end heated. I think her Honour correctly described the actions of both the plaintiff and Carr as being foolish. That being so in my opinion, it was foreseeable from the appellant's point of view that Carr would retaliate in some way and in doing so that she had placed herself in a situation of potential danger if he did retaliate. Carr's action was not so far out of what could be anticipated to excuse the plaintiff's action. 10. I would not interfere with the finding of contributory negligence nor with the apportionment. 11. As to the second ground of appeal which complains that there the respondent should not have had an order in its favour for the costs of a witness who was in attendance on the question of liability who was in attendance but not called. Mr Boucaut who appeared for the appellant conceded that he could only succeed if the appellant was successful on the main ground of appeal. 12. I would dismiss the appeal.

JUDGE2 BOLLEN J The appellant was injured at her place of work on 2nd June 1988. She was injured by the action of a fellow employee. The appellant brought this action in the District Court seeking damages in negligence against her employer. She alleged and proved that her employer was vicariously liable for the conduct of the fellow employee. Indeed, that was hardly disputed at trial. But the learned trial Judge found that the appellant had been guilty of contributory negligence. The learned trial Judge thought it just and equitable that the damages awarded to the appellant should be reduced by 30% for her share in the events causing her injury. 2. The appellant appeals against the finding of contributory negligence. If that fail the appellant complains that the apportionment of 30% against her is manifestly excessive. 3. The appellant was a process worker. Her work involved handling aluminium extrusions. Her evidence describing her work was:-
    "Q. Can you tell Her Honour at approximately the time
    of the accident the type of activities or duties you had
    to perform.
    A. My job involved when the aluminium came out of the
    presses, it is still really hot, and we had to use a
    machine to stretch it, to cut it into separate pieces.
    Q. Was that procedure done while the aluminium was hot.
    A. Yes.
    Q. Did it make it malleable and capable of stretching.
    A. Yes, and then it was brought over, and my job was to
    cut it into required lengths and stick them into colours
    that were allocated to them, and just the general
    running of the whole lot.
    Q. Generally speaking, were they bits of aluminium like
    the frames of the window in the court, of different
    lengths, that had to be cut into prescribed lengths.
    A. Yes.
    Q. And different sized cross sections, presumably.
    A. Yes.
    Q. And different colours, dependent on the purpose for
    which they were to be used.
    A. Yes." 4. The appellant was working the night shift on 2nd June 1988. At about 11.30 the fellow employee, Philip Carr, approached the appellant. He was carrying scrap extrusion metal. It was about six metres long and approximately 3 inches wide. He told the appellant that he was going to put that metal on the scrap crate. That crate was near the appellant. Carr and the appellant were of equal status. The appellant told Carr that the crate was "too full to put it in there". 5. She explained why she said it was too full thus:-
    "Because when you start to strap up the aluminium you
    put metal bands around, as you lift the aluminium by an
    overhead crane, and if it is too full sometimes the
    aluminium pieces get stuck into the crate, and that way
    lots of accidents and things like that can happen." 6. She told the Court that she was confident that the crate was too full. The respondent called no evidence. The learned trial Judge accepted the evidence of the appellant. She thought her "a patently honest witness". It follows that the crate was too full and that the appellant was right in asserting that the metal should not be put in it. The learned trial Judge found on the evidence of the plaintiff that Carr put the metal which he had been carrying at the feet of the appellant. The learned trial Judge went on to say:-
    "The plaintiff said that the scrap bin was used for
    storing faulty extrusions which were sent for
    re-melting. When the bin was full an overhead crane
    lifted the scrap out of the crate with the assistance of
    straps and removed the contents to a different part of
    the factory. The plaintiff asserted that it would have
    been unsafe for any further extrusion to be placed in
    the crate on this occasion as there was a danger of
    scraps getting stuck or falling. 7. As I have already mentioned Carr approached the plaintiff carrying a length of scrap aluminium extrusion. Thereafter a somewhat petty altercation occurred. When Carr said that he was going to put the scrap in the bin the plaintiff said 'it's too full'. Carr said 'Yes I am' and the plaintiff said 'No you're not, it's too full' and Carr apparently again said 'Yes I am'. The plaintiff then stood on the end of the scrap with both feet. Carr thereupon picked up the end adjacent to him and gave it a tug which caused the plaintiff to fall. As the plaintiff fell she heard a crack and noticed that her ankle was twisted in 'a funny way'. The plaintiff said that she had not expected Carr to react as he had. She said she expected him to simply accept what she had said. She took it for granted that he would leave the scrap extrusion where it was to be disposed of later." 8. The appellant said that she had no idea that Carr would behave as he did. She gave this evidence:-
    "Q. How did he pick up his end.
    A. It was just with both hands, just picked it up off
    the ground, just pulled it.
    Q. If he had not put the scrap on or attempted to put
    the scrap extrusion in the crate at that particular time
    was there any procedure as to what would have happened
    and what happened on other occasions.
    A. Yes, he could have left it there because it took
    less than five minutes to strap up a bundle of scrap and
    I would have put it into a new crate.
    Q. Would you have done it yourself.
    A. Yes.
    Q. Had that sort of thing happened previously that
    extrusions were left for the crate to be emptied.
    A. Yes.
    Q. When you stepped on the end of the extrusion, did
    you have any expectation as to what he might do.
    A. I had none whatsoever.
    Q. What happened when Mr Carr as you described tugged
    the end of the extrusion.
    A. I fell over and fell on my backside.
    Q. Can you describe to Her Honour what sort of tug it
    was.
    A. It was just a quick sharp tug, yes and I just fell
    over on my behind, just started yelling out because I
    heard the crack as I fell and looked down and my ankle
    was all twisted a funny way." 9. The appellant had no "authority over" Carr. But the appellant was "the one that always made sure that everything was running all right and you had to be careful with six metre lengths of aluminium". The appellant said she had had no earlier problem with Carr - "We were great friends". 10. The appellant had no reason to expect that Carr would pick up an end of the metal and pull on it. She had no reason to expect any such conduct. She took it for granted that Carr would leave the metal where he put it. 11. The learned trial Judge in finding that the appellant was guilty of negligence said:-
    "The only issue which arose on the question of liability
    related to the question of contributory negligence. It
    is clear that the actions of both the plaintiff and Carr
    were foolish. The plaintiff's action in standing on the
    scrap aluminium extrusion was an action performed in the
    heat of the moment. I am satisfied that she did not
    apply her mind to the possible consequences of her
    actions. As she said she thought that Carr would accept
    her direction and leave. Nevertheless I am satisfied
    that in behaving as she did the plaintiff was negligent.
    Her act of standing on the scrap metal was deliberate.
    It was not inadvertent and the risk of injury by falling
    therefrom even without Carr's intervention was
    foreseeable. She must therefore take some
responsibility for the injury which occurred." 12. In my opinion, the risk of falling even without Carr's intervention is irrelevant. The appellant did not fall without such intervention. Photographs of the metal and the area do not suggest that there was much risk of falling. Still it was, no doubt, foolish of the appellant to stand where she did. But a foolish act is not necessarily a failing to take adequate or reasonable care of one's own safety, i.e. not necessarily an act of contributory negligence. The appellant stood on the scrap, expected Carr to leave the metal there and paid no further heed to him. In my opinion, she was in no way at fault it so behaving. She had no reason from any past conduct to expect danger from any action by Carr. The action of Carr in pulling out the metal was so outrageously dangerous that no reasonable person in the position of the appellant could have foreseen it. There was, I repeat, no failure on the part of the appellant to take reasonable care of her own safety. With all respect, I cannot agree with the reasoning of the learned trial Judge. Moreover, I think that the sole cause of the injury was the negligence of Carr. True it is that the appellant acted foolishly in standing on the metal. But that conduct was all over before the action done by Carr. The appellant stood there in full view of Carr. He performed the action of pulling when he could see and appreciate the position of the appellant and the danger to her involved in a pulling away of metal. 13. We were pressed with the authority of the decision and reasoning in March v E and M H Stramare Pty Ltd and Anor (1990-91) 171 CLR 506. But that case is distinguishable. It was an accident on a road at night. The truck was in a foolish position on the road. The injured party came upon it in that foolish position at night. The present case involves no moving vehicle coming suddenly on an obstruction. It involves a man seeing the appellant where she was and causing injury by disturbing the base on which she stood. 14. Moreover this case is the type of case, mutatis mutandis, envisaged by Deane J in March v Stramare (supra). At page 524 His Honour said:-
    "The other further matter is that it should be apparent
    that nothing in what is written above should be read as
    indicating a view that a plaintiff is entitled to
    recover compensation under apportionment legislation in
    circumstances where his or her own negligence was, as a
    matter of ordinary common sense, the sole real cause of
    the accident. Even under apportionment legislation, it
    is an element of the tort of negligence that the injury
    sustained by the plaintiff be caused by the defendant's
    breach of duty. In a case where, as a matter of
    ordinary common sense, the 'sole' cause of the
    plaintiff's injury was his or her own negligence, that
    element of the tort will be lacking." 15. These remarks apply in the case of a defendant whose negligence was the sole cause of the accident. That is the position here. 16. I would allow the appeal. I would absolve the appellant from contributory negligence. I would enter judgment for the appellant in the full sum assessed as damages by the learned trial Judge. If necessary I would hear counsel on interest and costs below.

JUDGE3 MILLHOUSE J My brother Bollen has most adequately set out the facts of this appeal. I can come straight to the point - whether or not the appellant was guilty of contributory negligence. 2. During argument I put to Mr Richard Evans, for the respondent, that what he was saying amounted to this: "it was a damn silly thing for" the appellant "to do and therefore she was guilty of negligence." Mr Evans readily agreed. 3. Was it, to use words perhaps coarser than I should have used, "a damn silly thing" for her to do? 4. The appellant said that this sort of thing had happened before: other employees had brought scrap extrusions to go into the bin and she had said, "No". On such occasions the others had accepted her direction. The difference here was that this time Carr argued the point. She, perhaps arrogantly - I don't know - there is no evidence of her arrogance - just my assumption - assumed he would accept her direction despite the "petty altercation" as Her Honour described it. The appellant stood on the scrap extrusion metal as a sign to Carr that he should not move it. She looked away. Carr did not accept her action: he pulled the thing from under her. She fell and was injured. 5. Her Honour accepted the appellant as a reliable witness. I see from her evidence that this was the first time anyone had argued the point with her:-
    " Q. You have told us that when you spoke to Mr Carr
    and stood on the metal you assumed he would go away.
    A. Yes.
    Q. What made you assume that.
    A. Because he always used to do that.
    Q. Are you trying to tell us that happened before.
    A. They are always trying - fellows would bring down
    pieces of scrap metal.
    Q. I am talking about Mr Carr.
    A. Yes. usually when the bins were full the used to
    leave them on the floor, because the knew you had to
    strap it up and it would go.
    Q. You are saying there were occasions they have come
    back.
    A. Normally, and they have seen the bin, I have told
    them it was full, and they have left it and walked away.
    Q. What do you say, on previous occasions.
    A. Yes.
    Q. But you had never confronted Mr Carr and directed
    him not to put pieces into the bin before, had you.
    A. No, he just used his commonsense.
    Q. And, he was using what he thought was his
    commonsense that night, didn't he.
    A. So he thought, but he knew it was too full too.
    Q. So what we have is simply on this occasion there was
    a difference of opinion, between you and him, is that
    correct.
    A. Yes.
    Q. And never before had he responded to, or failed to
    respond to, an order from you, is that correct.
    A. Yes.
    Q. So why did you think on this occasion he would go
    away.
    A. Because he always used to.
    .................
    Q. That was the first occasion where there was an
    incident between you and Mr Carr, about whether there
    was no more room in the scrap bin.
    A. Yes." 6. That for the first time someone, Carr, had argued with her should have been a warning to the appellant: Carr might take the matter further and do something else in his insistence that the scrap go into the bin. 7. It had been foolish of her in the first place to stand on the scrap, I suppose to prevent Carr moving it. It may well have been a risky act in itself because she could simply overbalance and fall off. It was doubly foolish for her then merely to assume that Carr would accept her forbidding him to put it in the bin. Mr Evans referred us to two cases, both of which have dicta which cover the point. In Jones v Livox Quarries Ld. (1952 2QB
608) Denning LJ said (at 615):-
    " Although contributory negligence does not depend on a
    duty of care, it does depend on foreseeability. Just as
    actionable negligence requires the foreseeability of
    harm to others, so contributory negligence requires the
    foreseeability of harm to oneself. A person is guilty
    of contributory negligence if he ought reasonably to
    have foreseen that, if he did not act as a reasonable,
    prudent man, he might be hurt himself; and in his
    reckonings he must take into account the possibility of
others being careless." 8. In March v E. and M.H. Stramare Pty Ltd (171 CLR 506) McHugh J sai d (at 535):-

    " Damage will be a consequence of the risk if it is the
    kind of damage which should have been reasonably
    foreseen. However, the precise damage need not have
    been foreseen. It is sufficient if damage of the kind
    which occurred could have been foreseen in a general
    way." 9. The appellant should have realised that the act of standing on the scrap was in itself a risk. She also should have realised that Carr might do something, even if she did not foresee what, to make his point: that this might be something silly which could lead to her injury. 10. She was guilty of contributory negligence. As to the proportion opinions may differ. I could not say that 30% is wrong. 11. I suggest that the appeal be dismissed.