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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kingston v State Fire Commission

Details

AGLC: Kingston v State Fire Commission [1999] TASSC 110
Case: [1999] TASSC 110
Decision Date: 27 October 1999

CaseChat Overview and Summary

Lindsay John Kingston, a station officer for the defendant, the State Fire Commission, sued the defendant for damages, claiming that he was injured by the negligence of the defendant's servants or agents. The injury occurred when he was participating in a High Angle Rescue Technique training course. He had the role of stretcher attendant, which involved being lowered to the ground from the top floor of the Wilson Car Park, Hobart, while he carried a stretcher. The equipment and its set up were safe and more than adequate for the exercise. The plaintiff claimed that he was encouraged to attempt the exercise when it ought to have been apparent that he was too apprehensive to carry it out safely. He further claimed that the defendant's servants or agents were inexperienced and inadequately trained and that they were not properly and adequately instructed and supervised. The plaintiff further submitted that the defendant's course provided too steep a learning curve. The plaintiff's 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. 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. The court held that there will be judgment for the defendant.

Orders