Kingston v State Fire Commission - [1999] TASSC 110

1999] TASSC 110

CITATION: Kingston v State Fire Commission [1999] TASSC 110

PARTIES:  KINGSTON, Lindsay John
  v
  STATE FIRE COMMISSION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1039/1995
DELIVERED ON:  27 October 1999
DELIVERED AT:  Launceston
HEARING DATE/S:  18, 22, 23, 24, 26, 30, 31 March 1999

1, 12, 13, 14, 15 April 1999

JUDGMENT OF: Crawford J

CATCHWORDS:

REPRESENTATION:

Counsel:
             Plaintiff:  A M Blow QC & R M Grueber
             Defendant:  J L Parrish & D Nicol
Solicitors:
             Plaintiff:  Jennings Elliott
             Defendant:  Dobson Mitchell & Allport

Judgment ID Number: [1999] TASSC 110
Number of paragraphs: 69

Serial No 110/1999
File No 1039/1995

LINDSAY JOHN KINGSTON v STATE FIRE COMMISSION

REASONS FOR JUDGMENT CRAWFORD J
27 October 1999

The plaintiff was a 45 year old station officer, employed by the defendant, when he suffered an injury by accident in the course of his employment on 31 March 1993. It was in respect of that injury that he sued the defendant for damages, claiming that it was caused by reason of the negligence of the defendant by its servants or agents. The accident occurred when he was participating, probably with eight other trainees, in a High Angle Rescue Technique training course (hereafter referred to as a "HART course"), under the supervision of two instructors. I will state my findings concerning the facts of the accident.

As part of the course he undertook the role of a stretcher attendant, which involved being lowered to the ground from the top floor of the Wilson Car Park, Hobart, while he carried a stretcher. In answers to interrogatories the defendant accepted that the height was approximately 33 metres. The stretcher contained a dummy, consisting of a pair of overalls stuffed with hose, rope, foam and sand. The evidence did not clearly establish the mass of the laden stretcher. One of the course instructors, Mr Freeman, estimated it to be 50 kilograms and disputed that it could have been as much as 70 kilograms. The plaintiff estimated the mass between 60 and 80 kilograms. One of his witnesses, Mr Free, expressed as a guess that the mass was 90 kilograms. I can make no finding that it was more than 60 kilograms. It was not less than about 50 kilograms.

The equipment being used and its set up were safe and more than adequate for the exercise. The breaking strains of the ropes and other items of equipment were greater than necessary. The three anchor points, to which the system was connected on top of the car park, were extremely solid, being the bases of concrete supporting columns. A twin line system, rather than a single line system, was implemented, involving each of two ropes constantly sharing the load at all times.

The plaintiff was wearing standard issue clothing and equipment, including boots, overalls, safety helmet and safety harness. The safety harness was standard equipment for the HART system and was called by some a "sit harness". It was described by Mr Rouse, the creator of the HART training scheme, as having a large padded waistband coming round the waist with two adjustment points. There were two leg loops, one going around each leg with an adjustment point on it. Both of the leg loops came up and were wrapped around the waistband and sewn in place. The harness was made of very strong webbing. The plaintiff described the harness as a series of webbing which fastened around the legs up through the groin, around the hips more so than the waist, and which came to a central point in the front at the middle. One of the persons who undertook the course, Mr Free, explained that the attendant would step into each leg loop, wrap the harness around the waist and clip it and then tighten it up, including the leg webbing, so that it was comfortable. The plaintiff and Mr Free had heard that it was possible to fall out of the harness if the stretcher attendant turned upside down (referred to in the evidence as inverting). There is no reason not to accept the evidence of Mr Rouse that it is very unlikely that a person would fall out of such a harness.

The exercise amounted to a simulated rescue of an injured person from the top of the car park. The system was put together and checked and rechecked, ensuring that everything was properly connected and secure. The plaintiff stood on a 1.33 metre high concrete parapet wall which surrounded the upper floor of the car park. He was facing into the car park. His harness was attached by a rope, known as the attendant's bridle, to a nearby small triangular rigging plate. Beyond that plate the rest of the ropes, making up the HART system, led back to brake men and the anchor points. Also attached to the small rigging plate was a stretcher bridle, consisting of four ropes leading from the plate to four attachment points on the stretcher, two on each side.

Immediately inside the parapet wall stood two edge men, to each side of the plaintiff. Their main role was to lift up the stretcher, one at each end, and pass it over to the plaintiff. He was required to take the stretcher from them, with a hand at each side of the stretcher. Once he felt ready to do so, he was expected to give a command to indicate that he wanted to be lowered over the outside edge of the parapet wall.

It was the plaintiff's evidence that he was handed the stretcher, and took hold of it, when all of his weight was on his feet on the parapet wall and when none of his weight was being taken by the system. In other words, it was his evidence that at that moment he was not leaning back against the taut attendant's bridle. A photograph taken when the edge men were holding up the stretcher to him and at a point when he appears to be taking hold of it, suggests however that the system was taut, or very close to it. The photograph does not suggest slackness in the system.

The plaintiff had been trained to say when he wanted to be lowered. Upon him saying so, he was to lean back. Two brake men, each of whom was holding one of the two lines in the twin line system, would start feeding out their ropes through friction devices, thereby allowing the plaintiff to go backwards with his feet still on the top of the wall. There would come a point when he would be leaning back at such an angle that gravity would take over and he would need to take several quick steps down the wall, perhaps two or three. A precise number was not established by the evidence. In an affidavit made 11 weeks after the accident and in answers to interrogatories sworn by him four and a half years after the accident, he called such a point "the point of equilibrium", and said that at that point "the rapelling [sic] rescue manoeuvre requires the rescuer to take two quick steps down the face of the building" and that "the action is usually taken when the rescuer reaches an angle of seventy degrees to the vertical surface". In evidence he agreed that the point was reached when at an angle of 40 to 50 degrees to the vertical. Another witness, Sergeant Scott, seemed to think that such a point was reached when at an angle of about 45 degrees.

The manoeuvre I have just described was referred to at the trial as "taking the drop". A number of witnesses explained what was required, with little variance between them. As the attendant leans back gravity is pulling him down and as he cannot beat gravity on his own it is necessary for him to initially move down from the top of the wall in a controlled manner, by taking the quick steps down the wall. In the course of descending in that manner the system's twin lines, on the car park side of the small rigging plate, drop and come into contact with the top of the parapet wall (in this case blanket-like friction material was draped over the top of the wall). From that point on the forces which have operated at the anchor points in a direct straight line from the attendant's harness and the stretcher are changed into forces operating at the top of the wall and very quickly the attendant and the stretcher are supported by the system from above. He can stop descending and collect his thoughts, no longer experiencing what were quite substantial forces on his legs when taking the drop.

The evidence of the plaintiff about the happening of his injury was as follows. The stretcher was passed up to him by the edge men and he took hold of it. He was asked whether he had the weight and he acknowledged that he did. The edge men let it go. He then hesitated for a considerable amount of time. He was unable to say for how long but expressed it as seeming like an eternity to him. He said that the instructors (they were Mr Freeman and Mr Arnol) "were virtually insisting that I go" saying words to the effect of "you know what to do" and "go back, do it". He said that those things were said at some point of time but he now has no idea as to precisely when. He was afraid but did not communicate that to any person. He determined to proceed with the exercise. He issued instructions for the ropes to be eased out so as to allow him to lean back. He cannot now recall the words he used. His evidence was that he leaned back until the forces of gravity took hold and he fell, turning upside down and his body twisting. He remembers looking at his right foot "still stuck upon the wall". Later in his evidence-in-chief he said that "my right foot remained firmly fixed to the edge of the, the top edge of the wall and my left foot had moved down the required couple of paces, a couple of quick steps, small short steps". I have difficulty accepting that with his right foot stationary he took small short steps with his left foot, but he was firm in his evidence that his left foot moved down the wall. The brake men were letting out the ropes in the course of lowering him and because he did not move his right foot from the top of the wall he inverted. In the course of doing so he suffered a fracture of his right tibia, described by an orthopaedic surgeon, Mr Bye, as a bi‑condylar fracture running down from the knee into the upper quarter of the tibia. Mr Bye was of the opinion that the nature of the injury revealed that it was caused by an impact and not by a twist. At the trial it seemed to be a common understanding that the likely cause of the fracture was the laden stretcher somehow colliding with his leg.

Shortly after the accident the plaintiff was interviewed by a loss assessor and a statement was prepared for him. He took it to his solicitors for checking and on 15 June 1993 he swore an affidavit setting out the facts of his accident. The material parts are the following:

"13All necessary rope attachments were made to the descent line and were checked by the despatcher. I cannot recall who the despatcher was at the time. I then took up position on a one metre high parapet wall at the edge of the building with the stretcher at approximately waist height.
14I was supporting the stretcher with the assistance of two other team members. The stretcher contained a dummy which had been strapped tightly into position on the stretcher.
15Following the normal procedure, I placed my two feet on the top edge of the parapet wall of the building and started to lean back out over the edge. I was very nervous about the manoeuvre as I had not done it before. One of the course instructors, Gavin Freeman, had previously indicated this manoeuvre was the most difficult in the course. I had my right arm near my body and my left arm was outstretched. Before I commenced the descent either end of the stretcher was being supported by other officers before I had taken the weight of the stretcher. At that point I was relying on the other officers to take the weight of the stretcher.
16I recall that the other officers in the team started to talk me down which is the procedure whereby the officer encourages you and reassures you that the descent is proceeding as planned. I cannot specifically recall what comments or instructions were being given at the time.
17The rapelling [sic] rescue manoeuvre requires the rescuer to take two quick steps down the face of the building when he reaches a point of equilibrium and gravity begins to take over. This manoeuvre is designed to take up any slackness in the ropes. The action is usually taken when the rescuer reaches an angle of approximately 70 degrees to the vertical surface.
18Having reached the point of equilibrium, I endeavoured to take the required steps. I successfully moved my left foot down the face of the building; but I was unable to move my right foot from its position on the edge of the parapet. At this point I inverted and swung off to my right with my right foot still anchored in its original position.
19I fell approximately the length of my body and ended up upside down with my body twisted. During this motion I heard or felt what I thought was something breaking in my leg. I called out 'I've broken it - my leg I think I've broken it'. I believe that the stretcher may have collided with my leg at that time."

In that version of the events given shortly after the accident, the plaintiff did not suggest that he hesitated for a considerable amount of time on top of the wall. He had the edge men taking the weight of the stretcher, and he was relying on them to do so, before he commenced the descent. He was pressed hard by Mr Parrish, in cross-examination, about the apparent differences in this regard between his evidence and his affidavit. He did not suggest that his affidavit was incorrect but accepted that it contained what was his memory at the time he made it and that his memory had recently changed, although he could not say what prompted the change. An obvious explanation that comes to my mind is that he has since reconstructed in his mind what occurred, subconsciously or consciously influenced by a desire to strengthen his case against the defendant.

In his affidavit the plaintiff made no suggestion of being commanded or of being told to move, or of the instructors "virtually insisting that I go", as maintained in evidence. Rather he appeared to be describing in his affidavit what was a normal procedure of being encouraged and reassured by other officers.

He described in his affidavit his failure to move his right foot off the top of the wall as an inability to do so. It appeared from his cross-examination that he may have had in his mind, when he made the affidavit, that he might be able to blame the boots he was required to wear as the cause of that disability. However, in evidence he accepted that the cause was that he was too nervous and frightened to move his foot. I find that to be the case.

After hearing the plaintiff's evidence I therefore had doubts concerning whether he hesitated on top of the wall for a significant time before giving the command to be lowered. Probably within a few days of the accident the course instructors, Mr Freeman and Mr Arnol, furnished a joint report to the defendant. Being a joint report, it does not follow that what it stated were the observations of both Mr Freeman and Mr Arnol. Its contents were probably a combination of the recollections of each. In any event, the report contained the following description of the incident:

"Station Officer Lindsay Kingston then hooked into the system as he had requested extra training on this particular skill. Edge men were in place and a safety check was carried out before Station Officer Kingston committed to the edge.
Once Station Officer Kingston was in position on the edge he did appear a little nervous, but everything was working as it should, the brakes were put on the system to allow him to lean back into the correct position, which he did, he was however reluctant to step down onto the wall, he was told by both instructors Gavin Freeman and Chris Arnol to let the system take his weight. At this point he stepped down with one foot appeared to lose his balance. He then let go of the stretcher and grabbed for the rope in an attempt to stand again. The weight of the stretcher dropped onto his leg causing him to invert placing his leg on an unnatural angle. The system was still on brake and functioning correctly."

The instructors referred there to the plaintiff appearing a little nervous and of him being reluctant to step down the wall after he leaned back. The evidence of Mr Freeman was that he was observing the plaintiff at all times. Once on the wall the plaintiff was concentrating very hard, as do all students in that situation. Mr Freeman said that there was nothing different about the plaintiff compared to any other student who performed that activity. He maintained that the description in the joint report of the plaintiff appearing "a little nervous" was of what he would normally see in other persons performing the same exercise. To the best of his recollection, once the plaintiff had hold of the stretcher, he was only stationary for a moment before giving the command to lower and leaning back. Mr Freeman insisted that he gave no encouragement of any kind to the plaintiff before the lowering commenced. He said that the plaintiff, having given the command "lower", leaned back and the lowering commenced. However, when the plaintiff reached what Mr Freeman called the point of no return, he noticed that the plaintiff had not stepped down the wall as he should have done. Mr Freeman described saying at least three times in rapid succession instructions such as "you need to step down the wall, Lindsay", "step down", "you can do it", "you're going all right", "you need to step down", "step down now", or words to a similar effect. By doing so he was seeking to encourage the plaintiff to take the necessary short, quick steps down the wall. He maintained that the reference in the report he made jointly with Mr Arnol to both instructors telling the plaintiff "to let the system take his weight", was merely a reference to words such as the ones I have detailed. He has no recollection of telling the plaintiff to let the system take his weight in those words. He spoke to the plaintiff in a controlled voice, trying to encourage him and to let him know that he was going all right, to instil him with confidence. He did not see the plaintiff step down the wall with either foot after beginning to lean back, notwithstanding that the joint report said that the plaintiff stepped with one foot. Mr Freeman said that the next thing he recalled was the plaintiff unsuccessfully lunging for the rigging plate and going upside down.

I next refer to the evidence of Mr Arnol. He said that the reference in the joint report to the plaintiff appearing a little nervous was a correct description, but the plaintiff appeared no different than any other student in the same situation. It was clearly established by the evidence that the edge men were standing on the floor of the car park just inside the parapet wall. Mr Freeman was unable to recall where they were but Mr Arnol's recollection was that they were both sitting astride the parapet wall, facing each other, on either side of the plaintiff who was standing on the wall. Clearly Mr Arnol's recollection about that was wrong. It probably came about because he had witnessed edge men sitting astride the wall on other occasions. He did not agree that the plaintiff was standing on the wall for a significant period of time before leaning back, although he confessed that he was not paying particular attention at that point. He said that he heard the plaintiff give the command "lower" and he can remember looking at him then. As I understood Mr Arnol's evidence, he was talking to District Officer Burns and looking out at the city and his next recollection is of hearing Mr Freeman saying words to the effect of "Lindsay, you need to step down now". His attention was then drawn to what was taking place. He saw that the plaintiff was at a very crucial point and that if he did not step down he would invert. The plaintiff was leaning out from the top of the wall at an angle of about 45 degrees, holding onto the stretcher. Mr Freeman spoke to the plaintiff about three times and Mr Arnol believed that he reinforced what Mr Freeman had said, by saying "step down" or something like that. He described the tone of Mr Freeman's words to the plaintiff as "firm, yet encouraging". Mr Arnol then described the plaintiff as inverting. He thought that the plaintiff's right foot had stayed up on the edge of the wall and that his left foot had come down the wall. He saw the plaintiff grab towards the rigging plate.

Evidence was given by two other persons who were present at the time, Mr Free and Mr Monash. The former was called by the plaintiff and the latter by the defendant. Mr Free said that when the plaintiff was on the wall, just before he leaned back, he appeared very uneasy and showed a lot of nerves. Asked to explain, he said that he could see in the plaintiff's eyes that he was nervous, he was not his usual confident self and "there were nerves in his voice". Later he said that the plaintiff appeared very fidgety and uneasy. He agreed that the plaintiff had the understandable nervousness that he had observed in others performing similar exercises, although he thought that the plaintiff was probably a little slower than the more confident sort of people would be. He was not suggesting that the plaintiff froze on the wall, or anything like that, just that he was a little bit slower. Mr Free said that once the plaintiff had said that he was comfortable with the stretcher, the edge men let him go with it and he had total control of it for two or three seconds before he commenced to make his descent. The plaintiff was slowly working his way back, telling the brake men to lower. He agreed that the plaintiff appeared to do everything he was trained to do until the point was reached where his right leg did not move as it should have done. He described what happened as "the right foot got stuck" and the plaintiff "basically went straight back". It was his evidence that the left foot had moved but not the right foot.

Mr Monash, who had performed the same exercise immediately before the plaintiff, said that he observed no signs of the plaintiff being very nervous or anxious. However, he saw very little of what occurred because his role was to hold open the prussik knots which involved him standing with his back to the action. His evidence is best understood by quoting it. He said:

"I heard all the usual calls for the system, like, 'On the system,' 'Lower’, and everything was going fine and then I heard someone casually say, 'Step down, Lindsay', and then it got a little bit more urgent and it was 'Step down, Lindsay', and then it got directive, 'Step down now, Lindsay.' … After that something had happened - … And all the instructions I know was - 'Stop', 'Brakes on', which was my job, I put the brakes on."

The preponderance of evidence leads me to the following findings of fact. Once on the wall the plaintiff demonstrated that he was nervous, but that was to be expected. He may have appeared more nervous than some others would have appeared in the same situation, but nothing of significance arises from that. I am unable to accept his evidence that having taken the stretcher from the edge men, after acknowledging that he had its weight, he hesitated for a considerable amount of time before giving the command to lower. That was not supported by the evidence of any other witness to the incident. Nor do I accept his evidence that the instructors were insisting that he go. No other witness supported that claim and he did not make it in his statement of the facts sworn in June 1993 or in his answers to interrogatories. Notwithstanding that he felt nervous about what he was doing, I find that he acknowledged to the edge men that he had the weight of the stretcher and with no delay that is significant to the issues at the trial, he gave the command to lower. The brake men commenced to ease out the ropes and he began to lean backwards until he reached the point where he knew from his training and experience that it was necessary for him to take two or three quick steps, to enable the twin ropes to make contact with the top of the parapet wall so that he became suspended from above. He failed to move his right foot down the wall. Mr Freeman, and then Mr Arnol, realised that he was not taking the necessary quick steps down the wall and encouraged him to do so. Mr Monash referred to that encouragement becoming "directive", which is hardly surprising having regard to what was obviously going to happen to the plaintiff if he did not take the necessary steps. I find that he had by then reached the point of no return and there was no option reasonably open to him but to take the quick steps. He failed to take them, inverted and as a result sustained the fracture to his leg.

At this point it is convenient to deal with par(d) of the particulars of negligence pleaded by the plaintiff, by which he claims that the defendant's servants or agents encouraged him to attempt the exercise when it ought to have been apparent that he was too apprehensive to carry it out safely. In this regard it is necessary to refer to evidence of a conversation the plaintiff had the previous evening with the two instructors. It was the plaintiff's evidence that on 30 March, the day before the accident, those attending the HART course went to the Wilson Car Park and the same exercise was carried out, with other course participants descending from the top of the car park with a laden stretcher. He assisted setting up the system but did not perform the exercise himself. Although other students performed it, his evidence was that he avoided doing so because "it frightened the tripe out of me". However, at the end of the day at the Cambridge Training Centre, after the other course participants had gone home, he went to Mr Freeman and Mr Arnol. His evidence was that he told them he had avoided doing the exercise because it frightened him, and he was "pretty sure" that he used the words "I chickened out" or words similar to that. He told them, he said, that his conscience would not allow him to accept a certificate for having passed the course and that he had therefore come to see them and owned up. He asked if he could try the exercise on the following day and was told that he could do so if there was time.

Both instructors agreed that a conversation took place. The evidence of Mr Freeman was that the plaintiff said that he was pretty right with the stretcher work but he would not mind having more of a go at it, and the response was that if there was time after the next exercise the system would be set up and he, and probably a couple of others, could do it. Mr Freeman denied being told by the plaintiff that he had been frightened, that he had chickened out of doing the exercise or that his conscience would not allow him to receive the certificate until he had completed the course. Mr Arnol made similar denials, and gave evidence that the plaintiff emphasised that it was not a problem but he wanted a little more practice with stretcher attendant work.

I am not persuaded that I should accept the plaintiff's evidence and reject the evidence of Mr Freeman and Mr Arnol. The evidence does not satisfy me on the balance of probabilities that Mr Freeman or Mr Arnol encouraged the plaintiff to attempt the exercise at a time when it ought to have been apparent to them that he was too apprehensive to carry it out safely. On the other hand the evidence established that the exercise was carried out by the plaintiff on 31 March as a direct result of him requesting to do it. I find that he gave to Mr Freeman and Mr Arnol the impression that he wanted to do the exercise and that there was no reason why it ought to have been apparent to them that he was too apprehensive to carry it out safely.

I also reject the plaintiff's argument that the instructors ought to have called him off the parapet wall. The evidence did not establish that it ought to have been apparent to the instructors that he was too apprehensive to safely carry out the exercise when he was standing on the wall. The first point of time when it might have come to their notice that he was apprehensive to the extent that concern might be felt, was after he had committed himself to the drop. It was then too late to call him back.

Bases of negligence pleaded in the statement of claim, par7(b) and (f), were that the instructors, Mr Freeman and Mr Arnol, were inexperienced and inadequately trained and that they were not properly and adequately instructed and supervised. However, Mr Blow QC for the plaintiff, conceded, and I agree, that a finding that those paragraphs have been established will not lead to a conclusion that the plaintiff's injuries were caused by the negligence of the defendant's servants or agents. He merely submitted that it could be used by me to assist the assessment of the evidence. In particular he submitted that lack of experience in and supervision of the instructors led to inappropriate decisions by them concerning their failure to call the plaintiff off the parapet wall, their failure to position the edge men astride the wall instead of on the floor of the car park immediately inside the wall and the learning curve provided in the course for the plaintiff. It is unnecessary that I spend much time on the experience and training of the instructors, although I will refer to some of the evidence about the matter.

Mr Freeman was at the time a Senior Fire Fighter Grade 1. A few months after the plaintiff's accident he was promoted to the rank of Station Officer. As a Senior Fire Fighter he had responsibilities which included the training of subordinates. In 1990 he successfully completed an instructional techniques course, which concerned course development including the preparation and delivery of lessons and the critical review and assessment of training. His experience and qualifications in rappelling and high elevation rope work included the following. In 1990 he qualified with the defendant as a helicopter rappeller, having passed a training course conducted by the defendant in conjunction with the Australian Army. He attended training and as a consequence was qualified by the defendant in twin rope rescue work. In December 1992 he satisfactorily completed and passed a 20 day HART course conducted by the Melbourne Metropolitan Fire Brigade in Melbourne. The HART course undertaken by the plaintiff in March 1993 was modelled on the Melbourne course and was very similar to it. In February 1993 the defendant certified Mr Freeman as a HART instructor. His evidence was that he was the most experienced and qualified person in the employment of the defendant at that time. He had experience abseiling in the form of "straight building work". I have the impression that he had more experience in aerial rope work than was elicited from him in evidence, and in that regard it is emphasised that the onus was on the plaintiff to prove that he was inexperienced and inadequately trained. It is impossible to find those matters having regard to the fact that his inexperience was not thoroughly investigated by the plaintiff's counsel in cross-examination nor established by evidence led by the plaintiff.

The same comment can be made concerning Mr Arnol. He gave evidence that he was also accredited as a helicopter rappeller through military instruction in 1990. He obtained qualifications as a rigger in what was referred to as the twin rope method in about October 1992. It occurs to me he was probably referring to the same qualification obtained by Mr Freeman in twin rope rescue work. He was a member of the Army Reserve for 10 years until 1986 and completed instructor's qualifications for corporal and sergeant. As part of his qualifications for promotion to Leading Fire Fighter he undertook a course for the defendant in 1990 to qualify him as a trainer. That was possibly the course undertaken by Mr Freeman. He also undertook and passed in December 1992 the 20 day HART course conducted by the Melbourne Metropolitan Fire Brigade. Between December 1992 and March 1993 Mr Freeman and Mr Arnol were involved in the training of members of the Army Reserve to rappel from buildings. Mr Arnol performed rappelling from the Hobart Centrepoint Car Park with members of his shift. In conjunction with Mr Freeman he practised his skills in preparation for the HART course they were intending to conduct in March 1993. In that regard Mr Freeman gave evidence that they practised the despatching of stretchers and transfer of casualties into stretchers at the Wilson Car Park.

I will leave to later in these reasons a consideration of whether the learning curve provided for the plaintiff in the course was too steep and difficult, to the extent that he should not have been allowed to attempt the exercise, which resulted in his injury, when he did. Omitting that consideration, the next matter with which I deal concerns the positioning of the two edge men. It was the plaintiff's case that the exercise would have been safer if they had been sitting astride the parapet wall, instead of standing just inside it on the floor of the car park. It was submitted that a demonstration video in evidence established that was desirable, showing that the edge men, if sitting astride the wall, could take the weight of the stretcher for the initial moments of the stretcher attendant's descent, at a time when the forces on his legs were undoubtedly at their greatest. (Concerning those forces in a static situation there was evidence from a Dr Ashley.) However, the demonstration video does not support the plaintiff’s argument, in my view. It contains three demonstrations of an attendant taking the drop while holding a stretcher. In the first two demonstrations, the edge men are sitting astride the wall. At the time the attendant takes the drop in the third demonstration, one edge man is sitting astride the wall and another person, fulfilling the role of the other edge man, is standing on the floor inside the wall, and as the attendant takes the drop that person is holding the stretcher, leaning over the parapet wall, until the stretcher has gone below the level of the top of the wall. The impression I gain from that demonstration is that it makes little difference, in the case of a parapet wall 1.33 metres high, whether the edge men are sitting astride the wall or standing inside it, so far as concerns the ability to take the weight of the stretcher while the stretcher attendant is taking the drop.

Mr Freeman's evidence was that edge men should steady the stretcher for the attendant until he gives the command to lower, and that they are a hindrance and put themselves in a dangerous position, if they are sitting on the wall and continue to take some of the weight as the attendant commences to descend. He also referred to the risk of unbalancing the attendant if an edge men continues to hold one end. More preferably, in Mr Freeman's opinion, the edge men should let go once the attendant is comfortably holding and in control of the stretcher and about to commit himself to be lowered. However, he accepted that whether the edge men sit astride the wall or stand inside it is more a matter of their own choice based on comfort. It was also Mr Arnol's evidence that there is no need for the edge men to continue to take some of the weight of the stretcher as the attendant begins his descent. He referred to the danger of one end of the stretcher going up if it is being held by an edge man and he spoke of the desirability of the stretcher being in the control of the attendant. The evidence of Mr Monash was that the role of the edge men is to assist to get the stretcher up from the ground to the stretcher attendant and once he takes control of it the edge men are out of the system. Mr Rouse, who I regard as the most experienced of all of the witnesses, and who developed the HART course and managed it in Melbourne, considered it far safer to have the edge men on the inside of the wall. He said that if they are astride the wall there is a risk that they can become too involved with the stretcher and be too hesitant about letting it go. He also regarded their role as essentially one of lifting the stretcher to the attendant and letting it go once the attendant is adjusted and comfortable with it. Another experienced witness, Mr Kane, gave similar evidence. He thought it a debatable point whether the edge men should be straddling the parapet or standing inside it and regarded both methods as suitable. He pointed to a risk if the edge men sit astride the parapet, that they can fall over the edge or become involved, notwithstanding that they will be tied to ropes. Mr Kane also emphasised that the role of the edge men is to assist by getting the stretcher up to the attendant and once the latter commences to lean back he is on his own without any help from the edge men, except perhaps to ensure that the rope runs correctly over the edge. He pointed out that some edges have no walls, some walls have rails on the top and some walls are very high, making it impracticable for edge men to sit on top of them. So far as support of the stretcher is concerned, as the attendant leaves, he could see no difference concerning where the edge men are positioned.

As a result I am not persuaded that to have the edge men standing inside the wall was unsafe or negligent. No witness for the plaintiff gave evidence suggesting the contrary.

It was the plaintiff's case that the procedure whereby the attendant takes the initial drop when standing on the wall and holding the stretcher is an unsafe one and that instead the "grovelling" method should have been used. That was advocated by the plaintiff's expert witness, Sergeant Scott. He is a police officer with considerable experience in climbing and mountaineering and in search and rescue, including what I loosely refer to as rope work. Significantly more of his rope experience is in a wilderness setting although he said that he also had a substantial amount of experience in an urban setting. The grovelling method advocated by him is essentially the following. The stretcher, containing the patient, is lowered over the edge on its own. The stretcher attendant then climbs over the edge, outside one end of the stretcher on a "cow's tail", with a chest harness and a set of jumars which he can use to control his height in relation to the stretcher. Having got himself at the correct height he can work his way along the wall under the stretcher, until he has it between him and the wall. He can then take hold of the stretcher and give the command to be lowered.

Sergeant Scott perceived disadvantageous risks in the method being employed by the plaintiff in accordance with his HART training. He was against a procedure whereby the attendant is lowered over the edge while holding the stretcher. He said that as the attendant leans back a considerable amount of weight bears on his legs and feet and if there is too much weight on them it becomes very difficult for him to move his feet. Further, if the attendant takes too big a step with one foot he can be put off balance. Sergeant Scott also criticised the procedure upon the basis that the attendant has no control over the rate at which the rope (on his command) is being fed out by the brake men and he referred to the ropes undergoing slack and stretch factors when the attendant takes the sudden drop. However, even if it is accepted that the risks referred to by Sergeant Scott existed, there was no evidence establishing that the plaintiff was unable to move his right foot because of an enormous force, that he took too big a step with his left foot, or that the brake men fed out the rope at too slow or too fast a pace. Further, there was nothing in the evidence to suggest that slack and stretch factors in the rope contributed to his accident. The detailed evidence of Mr Rouse satisfied me that stretch in the ropes would have been minimal as would its affect on the plaintiff. I add that I found Sergeant Scott unsatisfactory as an expert witness and when his opinions differed from those of other expert witnesses I preferred their opinions rather than his. I say this because Sergeant Scott demonstrated a prejudice for the plaintiff's case, a desire to assist it if he could. In cross-examination he frequently avoided answering questions directly and responsively, instead making off-the-point long-winded statements favourable to the plaintiff. At the conclusion of his evidence I recorded that he had been determined to present and reinforce his own views at the expense of not answering questions directly.

The evidence of Mr Rouse and other defence witnesses satisfies me that a conscious patient in a stretcher will be far more comforted if he or she goes over the edge of the wall in the hands of a professionally trained attendant than if the stretcher is lowered over the edge on its own. From the point of view of the psychological welfare of the patient therefore the grovelling method is not as sound. Also, although only to a limited extent at first, the attendant is better able to attend to the patient's injuries and needs if he is with the patient at all times. Of course if the person in the stretcher is unconscious or dead, that is not a consideration. Mr Rouse is against the grovelling method. He considers it messy, with a risk of lines tangling. An extra line is required to be run from the system. There is also a risk of the attendant falling off the top of the wall with slackness in his system. Mr Rouse regards the method used by the plaintiff as the quicker of the two and that can be an important consideration when life threatening injuries are concerned He said that both methods are employed around Australia and overseas but he decided to mainly teach the method used by the plaintiff. He had instructed about 50 trainees in it and all applied it successfully without undue difficulties, except for the plaintiff.

What the plaintiff was doing was part of a 20 day training program in which a variety of skills and methods of rescue operations were being learned. In a particular situation in real life it may be that the grovelling method will be preferable whereas in another situation it will not be. Mr Kane confirmed that the HART system prefers the method being employed by the plaintiff instead of the grovelling method. He emphasised that in a real life situation the environment dictates what can be done. Training therefore must be realistic and cover all aspects. He regarded both methods as having good points and bad points. Both should be taught in his opinion. He prefers the HART system however. An advantage of the grovelling method is that it is easier for the stretcher attendant to get over the edge. An advantage of the HART system is that the safety officer checks the entire set up of the system before the stretcher attendant goes over the edge with the stretcher. In Alaska one man died and two others suffered severe injury through use of the grovelling method, because the system could not be checked in its entirety before it was despatched. He added that for a person in a stretcher to go over the edge on his or her own is an absolutely horrific experience and can cause shock. With the HART system the stretcher attendant is with the patient at all times, more ready to comfort and assist the patient. Mr Arnol also accepted that both methods have their good and bad points. He preferred the HART system but agreed that sometimes the particular environment may dictate that the grovelling method should be used. Mr Freeman's evidence was also that conscious patients prefer the HART method. His opinion was that it is smoother and easier to set up. He regards the grovelling method as messy, with the stretcher attendant lying on his stomach and grovelling and wriggling around until he gets to the point when he is down off the edge and hanging. It can cause damage to the equipment.

The evidence persuades me that the method used by the plaintiff, and which he was being trained to use, was not a particularly unsafe one which ought to have been avoided. I find that it was appropriate that trainees be taught to use it. It was important that they learn a variety of skills and methods for rescuing people. I am unable to conclude that the defendant, by its servants or agents, was negligent in providing that the members of the HART course learn the method in question and in not requiring that the plaintiff employ the grovelling method instead.

There was evidence, which I accept, that it is easier to go over an edge at the commencement of a descent if the system is anchored at a point substantially above the attendant rather than at a point approximately level with or below the level of the attendant. If the anchor point is directly above the attendant, all of his weight is taken by the system and there is no need for him to take the drop with a few quick steps. At the time of the plaintiff's accident the anchor points were at about floor level, which was about 1.33 metres below his feet. The nearest anchor point was 7.3 metres away from the wall. Two other anchor points were further away. It was necessary that the participants learn to descend on a system for which the anchor points were at such a level, to replicate situations with which they might need to contend in real rescue situations. Therefore, no criticism can be made concerning the use of anchor points at that level during the course.

In opening the plaintiff's case, his counsel said that a metal frame should have been used to obviate the effect of a low anchor point by raising the rope substantially above the height of the floor. Evidence in particular was called concerning the Crux 2000, a gantry device which can be erected on the edge of a drop, but not where there is a parapet wall. No witness spoke in favour of such devices because they are heavy, cumbersome and slow, as well as costly. It was reasonable for the defendant not to use such devices when training the course participants in the various skills required for high angle rescue situations.

It was the plaintiff's case that the defendant's course provided too steep a learning curve. Relevant particulars of negligence alleged by him are that the defendant failed to provide him with an appropriate learning curve, permitted him to carry out the exercise by means of a technique inappropriate for a person of his experience and failed to adequately prepare or train him for the exercise. His counsel commenced his submission about this by raising two possible explanations for the accident. One was that the plaintiff was too scared and the other was that the forces were too great for him to move his right foot. The plaintiff's evidence was of being too nervous and frightened, but he gave no evidence that he was unable to move his right foot because the forces acting on him prevented him from doing so and I disregard it as a likely cause of his injury.

It is not surprising that a person would feel nervous and frightened when leaning backwards from a parapet wall at the edge of a 33 metre drop, notwithstanding that he is securely attached to a system of well anchored ropes. Evidence was given by many witnesses establishing that apprehension and nervousness are usual and that it is common for the most experienced of persons to have a level of apprehension when taking the drop. It was in this context that the plaintiff's counsel submitted that it was reasonably foreseeable that a trainee stretcher attendant might freeze or panic, or make some misjudgment, if he was required to progress too far or too soon with a technique. He submitted that the plaintiff was permitted or required to do too much too soon and that the defendant ought to have obviated the consequent risk of injury by providing a "gentler learning curve or by taking more gradual steps", before having the plaintiff perform what one or two witnesses referred to as the most difficult exercise on the course. It therefore becomes necessary to consider the HART course generally and the training undergone by the plaintiff and the other participants at the course in question.

The HART training system was developed by Mr Rouse for the Melbourne Metropolitan Fire Brigade. After substantial inquiries he undertook a six-week study tour of other courses and systems in the United States of America. He developed a HART training package which was largely adopted by Mr Freeman and Mr Arnol for their course. Safety of equipment was a paramount consideration, the safety standards being far in excess of what was necessary. There were two common systems in existence, a single-line rescue system and a twin-line system involving one main active line and one safety line. His system took the twin-line system further and used two active lines which constantly shared the load at all times.

The HART course developed by Mr Rouse was 20 days in length and the course conducted by Mr Freeman and Mr Arnol, during which the plaintiff was injured, was 19 days in length. The difference is of no significance. I presume that the course was shortened by one day because Good Friday followed the nineteenth day. Mr Rouse's evidence was that a course 20 days in length was longer than any other known course. He explained that a course needs time for training, but it was almost a luxury to secure 20 days in which to run his course. It was his understanding, and there was no evidence contradicting it, that a 19 or 20 day course would be the longest rope rescue course in Australia and certainly in some parts of the United States of America. There are other courses undertaken in Australia, United States and United Kingdom which teach similar skills in a much shorter time. He said that the Victorian State Emergency Service would consider it a complete luxury to have eight days to run a course that included stretcher handling. He referred to a three stage program run in the United States by the Virginia Beach Fire Department which was less than 100 hours in length. It was his evidence that the biggest criticism he had received concerning the HART course was that it was too safe and that the training time was too long. It was the evidence of Mr Kane, who also had considerable experience, that the HART course was a leap forward in technology, the equipment being far superior and safer than any he had used, and to his knowledge there were no other courses in 1993 which approached 20 days in length. He said that the HART course was far in excess of any other course he knew of in Australia and the USA. He said that within the military system similar skills, including stretcher bearing skills, would be taught in a seven day period and the Victorian Police Special Operations Group would expect a similar level within five days. In his words, to have the luxury of a 20 day course was amazing. There was no evidence contradicting what Mr Rouse and Mr Kaine said about these matters.

I deal next with the plaintiff's experience before and during the course. He was not new to working at heights. He had been a fire fighter since 1976 and had as much experience of heights as any other fire fighter. He had worked on roofs and with ladders reaching over 38 metres in height and with snorkels over 29 metres high. He had twice descended by rope from the tallest of the ladders on which he had worked. He agreed that he had a lot of exposure to and experience of working at heights. He also had experience with ropes as a recreational sailor. He voluntarily applied to undertake the HART course.

There was no suggestion by any of the witnesses that the instructors did not fully and clearly explain to the plaintiff and the other participants in the course the equipment that would be used and the various methods and procedures the participants were expected to perform. Importantly there was no suggestion by the plaintiff that when he was about to perform the procedure during which he suffered the injury he did not fully understand what he needed to do. I have already found, on the balance of probabilities, that his failure to do what was required of him, that is to say, to take a few quick steps down the wall, was caused by nervousness and fear. It was not caused by failure to provide him with adequate instructions.

Evidence about exercises performed by the course participants was given by the plaintiff, Mr Free, Mr Freeman, Mr Arnol and Mr Monash. In many respects the evidence was uncertain because of the passage of six years since the course was conducted. In evidence is the timetable which Mr Freeman and Mr Arnold used for the course, but it is vague in many respects. For example on day seven, 23 March 1993, it scheduled traversing in the "City" and on day eight there was scheduled "HART exercise in Hobart City". It is also possible that decisions were made to change what was planned. There was evidence that on a rainy day the course had to be moved from a planned outdoor exercise to an indoor exercise at the Cambridge Training Centre. Some of the witnesses who undertook the entire course had difficulty remembering the order in which some of the exercises and venues occurred and there is a risk that an exercise recounted by a witness may have in fact occurred later in the course than day 13, which was the day of the accident. It was the evidence of Mr Freeman that he made notes in a pocket notebook of the exercises and who performed them, but the notebook cannot be found. Mr Arnol no longer has his own notes which he had at the time and which may have recorded the various days and venues of exercises.

Prior to his accident, the plaintiff performed a number of exercises involving rappelling. (That word was used by witnesses interchangeably with abseiling and I do not understand there to be a difference.) By rappelling I am referring to a person descending essentially under his own control and not to a situation where a person is lowered, his rate of descent being physically controlled by others. The evidence satisfies me that the plaintiff rappelled from a variety of heights, at a variety of venues, on a number of days and on at least some of those days he did so a number of times. There were not a great number of course participants, Mr Freeman agreeing in cross-examination that there may only have been nine. It was therefore possible on some occasions for participants to perform an exercise at a particular venue a number of times. At the trial it was referred to as rotations and the making of a number of evolutions.

The plaintiff gave evidence of rappelling from the Wilson Car Park, initially from a "mediocre height", which he later said was six storeys up the car park. As was the case at the time of the accident, the anchor points were at floor level round the bases of piers supporting the building. However, with the exception of the top level, where there was a parapet wall on which a participant could stand before commencing to descend, on all of the levels there was a fence topped by a safety rail. At the lower levels the participants climbed over the fence and commenced to descend from a toe-hold outside the fence. Therefore there was no "taking the drop" involving initial quick steps down the wall. The plaintiff did not give evidence of the number of times he rappelled from the Wilson Car Park but other evidence established that he did so on many occasions. His witness, Mr Free, referred to rappelling from different floor levels until they eventually reached the top level. He also said that early in the course participants rappelled from a hose drying tower at the Cambridge Training Centre, possibly from a height of 10 metres, and also from a mezzanine floor at Cambridge.

Mr Freeman's evidence was that throughout the course the height from which rappelling exercises were undertaken was increased and many of those exercises were at the Wilson Car Park, where most of the anchor points were at a low level. On the afternoon of the first day of the course, the participants rappelled from level three at the car park, with multiple lines set up in order that they could achieve as many evolutions as possible. Each participant was required to make a minimum number of three descents, and every time something a bit different was introduced again it had to be performed at least three times by each person. Mr Freeman said that they rappelled two levels higher at the Wilson Car Park on day two and there was further rappelling there on day three. Three lines were set up for a number of evolutions. One line was down a stairwell for ascending practice. Mr Arnol's evidence was that most of the rappelling exercises were conducted at the Wilson Car Park, commencing at level four and going up. Mr Monash had the first rappelling exercise at the car park commencing at a different level again. He thought it was at the first or second level, the heights increasing to the top of the car park.

The plaintiff also rappelled from the top of the Tasman Bridge onto the Eastern Shore of the Derwent. That was a different experience for the participants, because once they left the top of the bridge they were hanging in space, with no structure against which they could walk or work their way down. The plaintiff said that the height was nearly as great as the Wilson Car Park. The evidence did not establish the number of times the plaintiff, or participants generally, rappelled from the bridge.

The participants, including the plaintiff, rappelled from the top of the Repatriation Hospital. The plaintiff was unable to recall the number of times he did so but said it may have been a couple. He said that he stood on top of a wall about two feet six inches high. The anchor point was at a lower level than his harness. He therefore needed to take the drop when he commenced to rappel.

It was also the plaintiff's evidence that he rappelled from the top of the Commonwealth Bank, which is about six or seven floors high. There was no wall surrounding the top. The anchor point was at a level lower than the plaintiff's harness and it was therefore necessary for him to take the drop when he commenced the exercise. He said that he believed he rappelled only once there. In evidence were three photographs of exercises being performed on top of the bank, the plaintiff along with eight others appearing in two of them, apparently engaged in rigging equipment. In a third photograph a participant is suspended from the building holding an empty stretcher. It was the plaintiff's evidence that he did not descend from the bank carrying a stretcher. No witness had a recollection which contradicted that assertion. Mr Freeman's evidence was that they were at the bank, on the fourth day of the course, and there was raising and lowering on the HART twin rope system, including some evolutions with an unladen stretcher. He said that there was some lowering with an unladen stretcher and some without it. Some participants performed the role of "rat men", rappelling to the ground. The height of the bank was about 33 metres, he said. Mr Arnol gave evidence that the bank was probably the first venue where anybody was lowered with a stretcher, but he accepted that the plaintiff may only have rappelled and may not have been lowered with the stretcher. Mr Monash's evidence was that a few of the participants practised the role of stretcher attendant on the HART raise/lower system and those who did not observed. Everybody rappelled, he said.

The plaintiff said that the course went to the Organ Pipes on Mount Wellington, where he performed some exercises, but he did not say what they were. He said that one participant made a descent, but not him. Mr Freeman's evidence was that he believed everyone went down and certainly more than one, but he accepted that he could not say positively that the plaintiff did so. He referred to a rat man descending (which would have involved rappelling) and a stretcher attendant descending to retrieve a dummy which had been thrown over. Mr Arnol's recollection was similar, in that he believed some and possibly all of the participants rappelled, but he could not specifically recall the plaintiff doing so. Mr Monash's evidence was of a raise/lower system being carried out at the Organ Pipes and those who wanted to then did rappelling. He could not recall the plaintiff doing so, however. I will shortly deal with the evidence of exercises involving the HART raise/lower system, but mention that I generally accept the evidence of Mr Freeman that when such exercises were performed it was common to employ a participant as a rat man, who would rappel.

It was probably on the seventh day of the course that the plaintiff, along with the other participants, practised traversing by rope from one building to another, one of which was the Wilson Car Park. Although not directly relevant to the main issues, it amounted to another experience for the plaintiff of working on ropes at a substantial height.

I deal next with the evidence of the plaintiff's experience with the HART lowering and raising system. He gave little evidence about it. He said that at the Hobart Casino, which may have been higher than the Wilson Car Park, he was lowered to a point about halfway down the building, taking a spare line and harness with him. He entered the building through the window of a room containing a simulated patient. He placed the spare harness on the patient and they both exited the room by the window and were raised back to the top of the building. The system's anchor point was lower than his harness at the point of departure, but as I understood his evidence he did not take the drop. He said that there was a rough cast parapet wall over which he clambered and from which he then hung on the outside with no toe-hold available. I did not find his evidence wholly convincing about that. Mr Freeman's evidence was that descents were from the top of the wall (which would have involved taking the drop) and that he would have discouraged the method referred to by the plaintiff. Mr Monash also doubted that the participants climbed over the wall, but he said that he could not swear to the point. He believed that participants descended after standing on the wall and he assumed that the exercise was probably carried out with the use of a stretcher, but he was unsure about that. Mr Arnol's evidence was similar to that of Mr Freeman. He doubted that the participants would have clambered over the wall before descending. He referred to exercises involving a pick‑off exercise and also a stretcher attendant's exercise with a laden stretcher, but he accepted that the plaintiff may only have been involved in a pick-off exercise. Mr Freeman referred to both pick‑off exercises and descending with a stretcher containing a dummy, but not everybody did the latter because time did not permit.

I will return to the plaintiff's evidence later, but refer next to some of the evidence of witnesses about venues not referred to by him. Mr Free gave evidence of a lower/raise exercise at the Commonwealth Government Centre. With a dummy hanging on a rope down the side of the building, a participant rappelled down to the dummy and another participant, holding an empty stretcher, was also lowered. The two of them placed the dummy in the stretcher and they were raised. Mr Free performed the exercise but doubted that everybody had a chance to do so. He thought it was performed on a day prior to the plaintiff's accident, but he was not sure about that. Mr Monash confirmed that a raise/lower exercise was performed at the Commonwealth Government Centre and said that the system's anchor point was lower than the departure point. However, he could not remember at what stage of the course it was, nor whether there was stretcher attendant work, but he surmised that there was. Mr Freeman referred to the timetable which scheduled for all of the eighth day of the course "HART exercise in Hobart City", "Raising/lowering" and "Rat men/edge men". He was at first "pretty sure" that was done at the Commonwealth Government Centre, which is about 67 metres high, but he admitted to some doubt concerning whether the venue was used on that particular day. It was certainly used at some time during the course. The anchor points were lower than the point of departure and lowering commenced from the top of a parapet wall (which would therefore have involved taking the drop). He was also "pretty sure" that there was stretcher involvement and that a simulated casualty was brought out of a window lower down. I do not believe that either the plaintiff or Mr Arnol gave evidence or were asked about activity at that building.

The Grand Chancellor Hotel was mentioned by Mr Freeman and Mr Free. Mr Freeman expressed himself as being certain that the plaintiff went to the Grand Chancellor. The anchor point for the system was low and there was a parapet wall which presumably meant that the participants took the drop. Mr Freeman said that involved was a pick-off exercise without the use of a stretcher, a person descending to a room containing a casualty and being raised back to the top with the casualty. Mr Free's recollection was that a person abseiled down to the simulated patient in a room followed by another participant being lowered with a stretcher on the HART system to bring the patient back up. Mr Free gave no evidence concerning whether the plaintiff participated. Mr Arnol, Mr Monash and the plaintiff gave no evidence and were not asked about the Grand Chancellor.

The timetable for the ninth day of the course provided for "HART exercises" all day in the city. Mr Freeman thought it possible that the exercises that day were performed at the Lands Department building, but he was not sure. The anchor point was low and there was a parapet wall. Mr Freeman said that by day nine exercises involving rescue situations were being practised and a stretcher may have been involved. The height of the Lands Department building is about 45 metres. Mr Freeman also referred to an exercise at the AMP building in the earlier stages of the course, which he believed involved a rescue from within a window by somebody dangling outside it. He also referred to a second occasion at the AMP building involving a traverse (Mr Free referred to that also) but he said that was after the date of the plaintiff's accident.

I find that prior to the plaintiff's accident, a substantial number of the exercises undertaken by him involved taking the drop with a few quick steps down from an edge, associated with low anchor points. He accepted that on four or five days he practised taking the drop and that he would have done so more than once with some activities on a particular day. He did not claim that after he had done it a number of times, he found it particularly difficult.

I also find there that there took place on a number of days and occasions prior to the plaintiff's accident, exercises involving descents, usually from a substantial height, when a participant held a stretcher. Such descents were practised at the Commonwealth Bank, Wilson Car Park (including its lift shaft), the Organ Pipes, the Casino and the Cambridge Training Centre, and possibly at another venue. It was the plaintiff’s evidence in chief that he made no descent with a stretcher at any of those places. However, for reasons which will shortly appear, I do not believe that to be so, particularly because the evidence positively established that he practised a descent with an unladen stretcher, taking the drop as he did, at the Cambridge Training Centre. That inaccuracy in his evidence, causes me to doubt that he made no such descent elsewhere. It was the evidence of Mr Freeman that the instructors endeavoured to ensure that all participants performed each training exercise, including stretcher exercises. He maintained that they were meticulous about that and to that end he made notes at the time of who had done each procedure. He did not however retain those notes. It was also the plaintiff’s evidence that while most, if not all, of the other participants practised an exercise with a laden stretcher from the top of the Wilson Car Park on the day before his accident, he deliberately avoided doing so because he was frightened of it. He said that he assisted with the rigging and setting up of that exercise. On the morning of his accident there were descents with a stretcher down a lift shaft of the Wilson Car Park. He supervised a group of half the participants in the lift shaft exercise and that was his explanation for not performing the exercise himself that morning. I am not persuaded by the evidence that I should make a finding one way or the other whether he did or did not descend with a stretcher on some of the other occasions, such as at the Commonwealth Bank, the Organ Pipes and the Casino.

There was evidence that at the Casino one of the participants, Mr Hazelwood, inverted while performing the same stretcher exercise as was performed by the plaintiff when he suffered his injury. Inverting was not an unexpected occurrence and in the early part of the course the participants were shown how to get out of an inverted position by turning their hips.

As I have already stated, the plaintiff's evidence-in-chief suggested that he had no experience of taking the drop while carrying a stretcher, laden or unladen, prior to the accident. He said that two days before the accident he performed an exercise involving a stretcher at the Cambridge Training Centre. Inside the Centre was a mezzanine floor with a drop of about three metres to the floor below. At the edge of the mezzanine floor was a pipe fence. According to the plaintiff, the participants rigged lines over the pipe fence from an RSJ above their heads. He described the RSJ as forming the ceiling joist of the roof truss. He said that once the lines were rigged, he and the other participants had to step over the fence and were lowered about two metres. They did not have to carry anything, he said. They then placed a dummy, which was suspended from the fence and hanging against the wall, into a stretcher which was also suspended there. They and the stretcher were then raised. He described the anchor point, which was the RSJ, as being "in the ceiling above" his head about a metre or more, although in answer to a question from me he conceded that it was "back from the edge".

I find the plaintiff's description of that exercise was significantly inaccurate and harmful to his credit. I add that his counsel opened his case by saying that although during the training course he had been required to descend from great heights on a number of occasions he was, on those occasions, rappelling and in control of his own descent. The evidence established that to be incorrect and that the plaintiff was lowered by brake men, on the HART system, from great heights at a number of locations. His counsel also opened by saying that he had never been required to make a descent from a position with a lower anchor point. That was untrue. His evidence-in-chief, in so far as it suggested that he had never descended with a stretcher, laden or unladen, also proved to be untrue. In cross-examination counsel for the defendant put before the plaintiff his sworn statement about the events which he made on 15 June 1993, less than three months after the accident, and which he subsequently repeated in answers to interrogatories. In it he stated that he recalled that on the day before the accident (at the trial he said it was two days before) he had practised a technique off a 15 foot balcony at the Cambridge Training Centre. He continued:

"This technique involved descending a wall with an empty stretcher to rescue a dummy suspended on a rope on the face of the wall which was approximately 15 feet high. This technique was completed by me without difficulty. A further extension of this technique involved descending from the top of a wall with a fully laden stretcher and dummy. I had not previously carried out this exercise. On the day in question I had asked to complete this latter technique on the Trafalgar building" (a reference to the Wilson Car Park).

Faced with that, the plaintiff conceded in cross-examination that he may well have been lowered with an empty stretcher. He accepted that he completed the task without difficulty, except that he said getting the dummy into the stretcher was a bit awkward. Mr Free recalled that at the Cambridge Training Centre they practised going over the edge with an unladen stretcher. Mr Monash said that his first descent with a stretcher was at Cambridge. He said that there was a suspended casualty and they practised putting it into the stretcher and retrieving it, as well as departing and returning with both a laden and an unladen stretcher. He accepted that he could only speak of his experience in that regard and seemed to accept that it was possible that some participants practised with a laden stretcher and some with an unladen stretcher. Mr Freeman's evidence was that the participants, including the plaintiff, performed the manoeuvre of stepping off with the stretcher, the object being participants "getting used to that technique of stepping off with a stretcher and going to lower". He added that "it was the actual despatch from the edge that we were concerned with". I find that, contrary to the plaintiff's evidence, the rail at the edge was removed because it was not sufficiently strong to take the weight of the exercise. The evidence of at least three witnesses, other than the plaintiff, causes me to find that the anchor point for the system was a truss some five to eight metres back from the edge at about head height. The participants therefore were required to take the drop while holding the stretcher. I am not persuaded that because the anchor point was at about head height the experience was significantly different than one involving an anchor point at a lower level. Because of the evidence about the number of evolutions which were usually undertaken with exercises, it is more likely than not that at the Cambridge Training Centre participants performed the exercise of taking the drop with a stretcher more than once. The contrary was certainly not established.

For these reasons the plaintiff has failed to establish that prior to the time of his accident he had not experienced a descent while holding a stretcher. I find that he had done so. Further, I am unable to find that he had not done so from a height with a low anchor point, taking the drop, at a location other than the Cambridge Training Centre. However, I find that he had not done so with a stretcher containing a dummy. He maintained that he had not and the instructors, Mr Freeman and Mr Arnol, accepted that he may not have done so. In answers to interrogatories the defendant conceded that, to its knowledge, he had not previously "acted as a barrow boy" (stretcher attendant) "to sending" (descending?) "over an edge with a fully laden stretcher".

The plaintiff's counsel made the following submissions. No matter how safe the system may be, to the knowledge of the course participant, there will be a natural fear of falling. It is reasonable to foresee that a trainee stretcher attendant might freeze or panic or make some misjudgment if required to progress too far or too soon. In this case, it was submitted, the plaintiff was required or permitted to do too much too soon and a reasonable authority in similar circumstances, would have taken steps to obviate the risk (of the trainee freezing, panicking or misjudging) by providing a more gentle learning curve, in other words, more gradual steps. The plaintiff's counsel submitted that it would have been appropriate for the plaintiff to have practised at the Cambridge Training Centre from the mezzanine floor with a laden stretcher or at a (greater) height with an unladen stretcher, before be attempted the exercise at a height with a laden stretcher. If an appropriate learning curve had been adopted he would have had sufficient confidence and experience to perform the exercise safely. As I am unable to find that the plaintiff had not practised at a greater height with an unladen stretcher, I need only deal with the submission that he should first have been required to practice with a laden stretcher from the mezzanine floor at the Cambridge Training Centre before being permitted to do so from a substantial height.

There was not a foreseeable risk, against which reasonable safeguards had not been put in place, that an inexperienced or untrained stretcher attendant would fall to the ground. I am satisfied that the harness and the other equipment were safe and secure and that the braking system would have prevented such a thing happening. Counsel for the plaintiff did not submit to the contrary. However, he submitted that there was a foreseeable risk that the participant might collide with the wall of the building or with the stretcher and suffer some form of personal injury as a result. Although I do not think there was any evidence of injury occurring in that way, apart from the plaintiff's injury, I agree and the question which needs answering therefore is what a reasonable person's response to that risk would be. The evidence from both sides of the case established that a reasonable person would ensure that the participants be trained with the exercises gradually becoming more difficult as the course progressed. Expressions such as gradual learning curve and building block approach were used to express this. Given that the equipment and the procedures themselves were as safe as could reasonably be expected, which I find, it was nevertheless necessary for the course to be so designed that the participants had the opportunity of gaining confidence in the performance of a variety of skills and techniques and that, certainly initially, they needed experience at relatively low heights before practising at substantial heights. However, I reject any suggestion that as a general proposition, nothing new should have been permitted unless it was first practised at a low height.

Plainly a great height is more likely to engender in a participant a greater perception of danger than a low height. But essentially it is the perception of risk which is enhanced and not the risk itself although, of course, the consequent risk of injury, and the likelihood of it occurring, will be greater for a nervous or frightened participant than for one who is more confident and less fearful. What I have been saying was supported by the plaintiff's expert, Sergeant Scott. He said that he would usually have a trainee perform a number of practices with an unladen stretcher before proceeding to training with a laden stretcher. He was then asked from what heights should practice with an unladen stretcher take place and he responded by saying that the height is irrelevant, except that "if they are not comfortable with heights then I wouldn't ask them to do it". That was reflected in Mr Freeman's evidence when he said that "once they get used to working at height the technique is all that really counts". I accept the submission of Mr Parrish, for the defendant, that the evidence highlighted that as the course evolved and trainees became more comfortable with height it was not really an issue. I am satisfied that the plaintiff had a considerable amount of experience and practice working at substantial heights throughout much of the course.

A most important fact in this case is that the plaintiff requested the instructors to allow him to perform the exercise in question. As stated by him in his affidavit of June 1993, "on the day in question I had asked to complete this latter technique on the Trafalgar building". He had practised the technique with an unladen stretcher at Cambridge and I am not persuaded that he had not also done so at relatively substantial heights at other venues. On the morning of the accident he had supervised trainees descending with a stretcher in the lift shaft at the Wilson Car Park and probably one or two days earlier he had been in attendance when other participants had performed the procedure from the parapet wall with a laden stretcher. Immediately before the accident Mr Monash did so in the plaintiff's presence. The evidence does not satisfy me that he was placed under any pressure by the instructors to undertake the exercise in question. He chose to do it. Having completed the technique with an unladen stretcher without difficulty at Cambridge, he communicated that wish and the system was set up so that he could do what he had requested. Mr Rouse's evidence, and also Sergeant Scott's evidence, emphasised the importance of the trainee wishing to perform a particular exercise. In Mr Rouse's words, "it would be up to the individual student to make his own mind up whether he wanted to take that step". When referring to a similar, but not identical circumstance, Sergeant Scott said that "it would depend very much on the student". In the words of Mr Kane, "he has been a stretcher attendant, he has worked at height, and then, to put it in a nutshell, he has approached the instructors and said, 'I want to do this'" and he assumed that the instructors "would believe he could have done it, he, obviously, believed he could do it".

By all known standards it was a long course. It was conducted in accordance with the building block approach advocated by the plaintiff, with a gradual development of skills and techniques and a gradual increase in heights until, prior to the time of his accident, he and the other participants were regularly practising exercises at substantial heights. He had gained a great deal of experience in rappelling, in being lowered in the HART system, and in other skills and techniques. He had adequate practice in taking the drop with low anchor points and in performing exercises at substantial heights. He had practised being lowered while holding an unladen stretcher at the Cambridge Training Centre, taking the drop as he did so, and the evidence has not persuaded me that he had not similarly practised with an unladen stretcher on other occasions at other places. He made a special request to the instructors to perform the relevant exercise with a laden stretcher. The evidence does not persuade me that he communicated that he was suffering nervousness or fear, in any significant way. I find that the instructors had no reason to think that he was not sufficiently confident or competent to perform the exercise.

For these reasons it is my judgment that the evidence has not established that the defendant failed to take reasonable care for the plaintiff's safety. There will be judgment for the defendant.

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Citations

Kingston v State Fire Commission [1999] TASSC 110

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