Lammin v Carroll No. Scgrg-96-189 Judgment No. S6109

[1996] SASC 6109

LAMMIN  v  CARROLL

FULL COURT:  Cox J, Matheson J & Duggan J  (Ex tempore)

DUGGAN J

The appellant, who was the plaintiff at first instance, was awarded damages against the respondent in a civil action heard in the Magistrates Court.  The respondent appealed against the finding of negligence to a single judge of this court who allowed the appeal after reaching the conclusion that negligence had not been proved. The appellant now appeals against the decision of the single judge.

The appellant was injured in an incident which took place at a building site at Woodcroft on 5 March 1992.  The respondent drove to the site in a large truck which was fitted with a concrete pumping machine.  The truck weighs approximately 25 tonnes.  The intention was to use the machine to pump concrete onto the site for use in connection with the construction of foundations for a building which was in progress on the site.

The appellant is a builder and he was there to assist while the concrete pouring operation was in progress.  When he arrived at the site the respondent set about positioning his truck in readiness for the pour.  He parked the vehicle on the roadway adjacent to the site so that it was on an angle and, to use his expression “nosed into the job”.  The vehicle was parked mainly on the bitumen roadway, but the right-hand tyre was on the verge of the road.  It had been raining earlier and the ground forming the dirt verge was wet.  However there was no evidence to suggest that the ground in this area was particularly soft.

As part of the process of setting the truck up for the pour the respondent used six hydraulically operated stabilisers which are attached to the vehicle and can be lowered by means of levers.   The end of each stabiliser is fitted with a steel disc approximately 150 mm in diameter. In order to avoid damage to bitumen and concrete surfaces, large blocks of hardwood, the approximate thickness of railway sleepers, are placed on the ground so as to give the stabilisers a resting place. In some situations it is necessary to increase the height by stacking blocks on each other and this is what happened in the present case.

When the stabilisers were in place, five were on the bitumen and the remainder was on the verge.  Wooden blocks were positioned in the manner which I have explained, the motor on the tray of the truck was in operation and the respondent stated in evidence that while he was doing a final check he heard a loud bang.  He went to the front of the truck and saw that the appellant had been injured.  He said he saw a piece of one of the blocks he had used lying on the ground.  It looked as though it had sliced off at an angle and he described it as a quarter circle of wood split off from the main block.  The appellant said he was about 5 metres from the truck picking up a piece of reinforcing rod when he heard a crack and looked up.  He then saw a chunk of wood flying through the air towards him.  It struck him on the nose. According to the evidence the piece of wood had broken off one of the blocks used on the bituminised area and not the one used in connection with the stabiliser positioned on the verge of the roadway.

There was no expert evidence given to assist the court to decide how the accident might have occurred and neither the evidence of the appellant nor the respondent is of any real assistance in this respect.  The learned magistrate could find no evidence to support the appellant's contention that there might have been some instability caused by the fact that one of the legs was on the verge of the road.  He was of the view that something inexplicable and unusual might have caused the block to split.  He continued (p75.8):

“However, I do not have to decide that because it is my view that setting up such a massive truck on six wooden pads is an inherently dangerous operation and a reasonable tradesman doing so, would ensure that all persons were kept clear of the immediate vicinity.  In my view, the failure to warn the plaintiff of the need to keep clear is negligent.  Although the operation has occurred many times without incident, it is so inherently a potentially dangerous operation that reasonable prudence requires the precaution of keeping people away.”

He went on to discuss the pleadings and continued:

“However during the conduct of the proceedings it was clear that one of the plaintiff's allegations of negligence was that a warning should have been given before the time when the incident occurred.”

The learned magistrate found that the failure to give the warning was negligent. He went on to say:

“If I am wrong about that I would have gone on to infer that the fact that the hard wood block split on this occasion, when this apparently has never happened before, infers that Mr Carroll did something - what, is not admitted and hence not known by me - which was sufficiently out of the ordinary to have been negligent.”

The learned judge appealed from rejected this reasoning.  He said:

“Therein lies the answer of the reason of the learned magistrate. Commonsense dictates a conclusion that, in the bare circumstances revealed by the evidence, what was in contemplation was a routine operation which had been performed by a highly experienced operator for twenty years without incident - in a manner apparently quite normal in the industry - which gave rise to a totally unexplained incident, which, on the evidence, remained inexplicable, save as the consequence of a probable latent defect in the bearer.  It was, by no stretch of the imagination, eloquent of negligence, on the face of it; and how it could be said that such a routine operation was inherently dangerous, in the sense of being intrinsically dangerous, defies the imagination.”

There is no doubt that, speaking generally the degree of care required varies directly with the risk involved so that:

“Those who engage in operations inherently dangerous must take precautions which are not required of persons engaged in the ordinary routine of daily life.” (Glasgow Corporation v Muir (1943) AC 448, at 456).

However, the assessment of the degree of danger or risk must be evident, either from common knowledge or established by the evidence in the particular case, see the case of Mercerv Commissioner for Road Transport and Tramways(NSW) (1937) 56 CLR 580.

The only basis upon which the learned magistrate could have reached the conclusion that the positioning of the stabilisers was inherently dangerous was by means of his own unaided assessment of the situation.  There was no evidence to support that conclusion and what evidence there was suggested that the procedure, as carried out by the respondent over many years, was not so obviously dangerous as to require a warning of the type envisaged by the learned magistrate.

Accordingly, I am of the view that liability cannot be supported on the basis that there was a requirement to warn the appellant because of the nature of the operation itself. I am also of the view that liability for negligence cannot be established through the alternate route suggested by the learned magistrate and supported by Mr Fox for the appellant, namely, that the block split and as this had never happened before the respondent must have done something which was sufficiently out of the ordinary to have been negligent.  This conclusion amounts to a finding of negligence in the occurrence itself and appears to be based on the process of reasoning associated with the maxim res ipsa loquitur.  As Barwick CJ pointed out in The Government Insurance Office of New South Wales v Fredrichberg, (1968) 118 CLR 403 at 413 the “doctrine” of res ipsa loquitur:

“... is no more than a process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of the person in the position of defendant; or perhaps, as it might more accurately, in my opinion, be expressed, where in the opinion of the judge, the jury would be entitled to think that such an occurrence was not likely to occur in the ordinary experience of mankind without such a want of due care on the part of such a person.”

In the present case it cannot be said that the breaking off of the piece of wood and it is projection through the air was not likely to occur without a lack of care on the part of the respondent.  This requirement is an essential step towards liability by the process of reasoning referred to above and to ignore it would be to produce the result that:

“... mere proof of any occurrence causing injury will constitute sufficient proof of negligence in any case where an object which physically, has caused injury to the plaintiff is under the control and management of the defendant and the actual cause is therefore, not known to the plaintiff, and is, or should be, known to the defendant.”  (Mummery v Irvings (1956) 96 CLR 99 at 116).

In Mummery v Irvings the plaintiff was struck by a piece of wood which was thrown from a circular saw.  The majority of the court considered whether this occurrence was such as, in the ordinary course of things, does not happen if those who have the management use proper care. Their Honours said:

“To that inquiry in this case there cannot be an affirmative answer. We are told nothing of the characteristics of circular saws and we are not told that such an occurrence is usual or unusual or indeed highly improbable.  Moreover we are told nothing concerning the size of the piece of wood in question and it is difficult, if not impossible, in these circumstances to attribute the accident to some act of negligence on the part of the operator.  If the question is posed, ‘Was the accident such as in the ordinary course of things does not happen if those who have the management use proper care?’ the answer, on the evidence in the case, must be ‘We simply do not know’.  One may but conjecture but cannot as a matter of inference attribute negligence to the respondent’s foreman.”  (supra at 117)

I have reached the conclusion that the same answer must be given in the present case.  As the learned judge pointed out there may well have been some latent defect in the block of wood.  Mr Fox observed that the blocks had been used on many occasions.  But the fact is that they were inspected regularly and there was no evidence put before the court as to the effect which stress of this nature might have on the equipment.  In short, there is insufficient material before the court to establish that the accident would not have happened but for negligence on the part of the respondent.

Mr Fox criticised the technique used by the respondent in that he did not set up the vehicle entirely on the bitumen, but he then had to concede that this had not been established as the cause of the accident or as contributing to it.  Nor was it established that the wet ground at the verge of the road had anything to do with the accident.  Mr Fox stressed the precautions which were taken to ready the truck for the pour.  The evidence discloses that the respondent was careful in setting up the truck and stabilising it.  However this cannot be used as proof that the operation was dangerous in the sense that an incident of this nature could take place.

There is, in my view, no basis upon which liability for negligence could be found and I am of the view the appeal should be dismissed.

COX J 

I would dismiss the appeal.  I agree with the reasons of Duggan J.

MATHESON J

I would also dismiss the appeal for the reasons given by Duggan J.

COX J

The order of the court will be appeal dismissed. The appellant must pay the respondents costs to be taxed.