McGinniss v Southern Regional Cemetery Trust

[1987] TASSC 125

Serial No B55/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              McGinniss v Southern Regional Cemetery Trust [1987] TASSC 125; B55/1987

PARTIES:  McGINNIS, Roger John
  v
  SOTHERN REGIONAL CEMETERY TRUST

FILE NO/S:  2517/1985
DELIVERED ON:  Cosgrove J
JUDGMENT OF:  18 December 1987

Judgment Number:  B55/1987
Number of paragraphs:  15

Serial No B55/1987
List "B"
File No 2517/1985

ROGER JOHN McGINNISS v SOUTHERN REGIONAL CEMETERY TRUST

REASONS FOR JUDGMENT  COSGROVE J

18 December 1987

1. The defendant Trust was established by the Southern Regional Cemetery Act of 1981. At all relevant times it was responsible for the operation of the Cornelian Bay Cemetery and the Lawn Cemetery at Kingston. The plaintiff has been employed by the Trust since 20 December 1982. When he was first employed, he was engaged in setting up the Lawn Cemetery. Since February 1983, he has been, as leading hand, the senior of the two Trust employees located at Kingston. Although subject to general directions from the Trust and its senior officers, he has been, and still is, in charge of day–to–day operations at the cemetery. On 24 August 1984, whilst carrying a wooden railway sleeper from one grave to another, he slipped and fell, thereby sustaining an injury to his back. He sues the Trust for damages, alleging that it failed in its duty to take reasonable care to avoid exposing him to an unnecessary risk of injury; and that its failure to do so was causative of his injury. In order to understand his claim, it is necessary to describe the method whereby an excavated grave in a lawn cemetery was then and is now prepared for a burial.

1. The first step is to place a baulk of timber (in this case a sleeper weighing about 42 kilograms and a smaller length of timber of similar depth and width) along the low side of the grave. Other timbers are placed at the ends and along the other side. These timbers are said to provide a level, stable platform for a lowering device. I cannot think that this is anything other than a rudimentary arrangement effecting little more than a distribution of weight rather than levelling; for the sleeper although said to be 6" thick is clearly not uniformly so; its counterpart on the high side of the grave is ½" thick, and yet the gradient from high side to low side must vary from place to place. I imagine the end pieces are spacers designed to keep the side pieces parallel. At all events, these timbers constitute the foundation for a chequer plate of aluminium in the form of a hollow parallelogram. Over the perimeter of this is spread green artificial matting, and on it stands the lowering device, apparently made of steel from which depend straps, designed to bear the coffin down into the grave at a rate measured to be respectful by a form of clutch or governor hidden within the metal part of the device. When the coffin is in the grave and the mourners departed, a tractor driven trailer containing some or all of the excavated soil is brought to the grave site and dumped (in the manner of a dump–truck) into the grave at the relevant time. Grave covers are (and were) available, and although it seems to have been thought that their primary use was to cover empty or "stock graves", it was permissible to use one to cover a coffined grave until backfilling could commence.

1. None of the equipment was duplicated, with the result that, when successive burials were programmed, the equipment had to be taken by hand from the first site to the next site designated, before that site could be used. The minimum time–space between burials was one hour. Sometimes four burials were programmed for the one day.

1. It would not be difficult to devise a more efficient and probably a more decorous system, but it is safety rather than efficiency or decorum with which I am concerned.

1. The system in use was assailed as dangerous because:

(a)burials were scheduled so closely proximate in time as to necessitate hurried work;

(b)the sleeper was an awkward heavy burden for one man and increased the danger of slipping or falling;

(c)the system did not embrace any measures designed to reduce risks created by muddy, slippery ground.

(d)the requirement for more or less immediate backfilling was creative of hurry and a resulting reduction in the workers' care for their own safety.

1. In answer to these general allegations, Mr Reeve, the manager of the Trust, who has had a long experience in this field, having been superintendent at Carr Villa for many years prior to his appointment as manager for the Trust in about 1982, said:–

(a)an hour was a reasonable period between burials. It had always been the standard minimum at Carr Villa. However, because funeral corteges were sometimes late in arriving, and mourners sometimes reluctant to depart, there were occasions when it was necessary to hurry.

(b)employees did sometimes carry the sleeper unaided (Mr Reeve said that he had himself done so).

(c)lawn cemeteries tended, in inclement weather, to be muddy and slippery. This cemetery was no exception, but such conditions were practically unavoidable.

(d)the requirement was that the grave be covered immediately after the burial – by backfilling if that was feasible, and if not, then by use of a grave cover;

and

(e)the system as a whole had been in use at Carr Villa for many years, and the plaintiff's was the only injury sustained by an employee.

1. It may be noted that there was another sleeper on site available to both parties. As the other timbers were in no way special, it would have been simple to duplicate the timber foundations. It apparently did not occur to either the plaintiff or Mr Reeve to do so.

1. It may also be noted that apart from these proceedings, neither before nor since the 24 August 1984 has the plaintiff suggested to management that the use of the sleeper (or any other part of the system) is hazardous. The only written reference to the sleeper is in the plaintiff's monthly report of August 1985, the month in which the Writ commencing this action was issued. The complaint then made was that the sleeper was "extremely awkward and heavy under wet conditions". I discount evidence of oral complaints of a similar nature.

1. In hindsight, it is possible to say that, given the conditions to be encountered underfoot, some slipping and falling would inevitably occur, that the tendency to slip might well be enhanced when the sleeper was being carried, and further enhanced if one man carried the sleeper. But would a reasonable employer foresee a risk of injury in the portage of the sleeper by one man? With some hesitation, I have come to the conclusion that he would. Work of this nature would be commonplace on a farm. But injuries of this causal genus do occur. In that context, they are rightly regarded as being practically unavoidable. In the present context, it would have been simple to reduce the risk by provision of more and/or better equipment.

1. Was the risk causative of the plaintiff's injury? Here I encounter some difficulty because I have no confidence whatever in the credibility of the plaintiff, or his principal supporting witness, Mr Short. I formed that opinion on observation of them in the court room and it has been confirmed by a reading of the transcript. In my opinion, they gave untruthful evidence purposefully. However, I am able to piece together something of the facts from independent sources. It is agreed that the ground was very wet and slippery. The plaintiff was carrying the sleeper when he fell (that fact was a matter of immediate report).

1. The resolution of the crucial issues is more difficult. First, there is the question whether the plaintiff was on the 24 August 1984 working under any real time constraint. There is what I regard as a very suspicious entry in the plaintiff's diary to the effect that the "first funeral was late by 30 minutes". No substantial reliance was placed on this entry. The plaintiff said in evidence that the funeral cortege was 20 minutes late, Mr Short said that it was 15 – 20 minutes late. Both of them said that the mourners from the first funeral did not leave until 12.05pm, and that the process of dismantling equipment at the first grave began at about 12.10pm. The second funeral cortege was scheduled to arrive at 12.15pm. According to the plaintiff, backfilling was likely to take 15 – 30 minutes. If the times deposed to by the plaintiff and Short are correct, it is inconceivable that Short would have been ordered to backfill in full view of the second group of mourners. It is very difficult to find facts when the evidence of the only persons present is quite unsatisfactory. However, the plaintiff gave another version. In his answers to interrogatories, he said that following the completion of the first burial at about 11.45am, Mr Short went off to backfill. This was, as a matter of calculation, 30 minutes prior to the scheduled arrival of the second funeral cortege. In another answer, the plaintiff said that they had "only some 30 minutes to backfill plot 37R and set up site 2V. I sent Mr Short to get the backfill. I undertook to move the sleeper myself". In his oral evidence, he said that he and Short removed to the second grave site the lowering device, the artificial matting and the chequer plate. If both pieces of evidence are true, the plaintiff had only to carry the timber and set up at the new site in the time remaining, still approximately 30 minutes. It is clear that if the plaintiff desired, there was ample time for Short to assist him with the sleeper, and to cover the coffined grave with a grave cover or planks and a floral tribute rack (all of which I find were available). Backfilling could then proceed at leisure. Holding the opinion which I do of the plaintiff's credibility, I am by no means satisfied that the answers to interrogatories are true. But they do provide one version of the facts put forward by the plaintiff himself. Whether I accept that, or hold that there is no satisfactory evidence at all as to the time schedule, I must still find that the plaintiff chose to carry the sleeper. Whether that was because he regarded it as easy (he is a big man, standing 6'2" or 6'3", he said) or because he regarded it as ultimately the lazy way, or whether some other reason prompted him, I cannot say.

1. It is said that the defendant Trust should have forbidden the plaintiff to carry the sleeper, and was negligent in failing to do so. To uphold that submission would be to load the employer with an altogether too onerous a duty of care. The plaintiff was an experienced operator – formerly, as the Trust knew, a foreman at the Hobart City Council supervising 15 to 20 men, an active person who accepted the defendant's invitation to cut and gather firewood on its property, and the person–in–charge of the cemetery. It would be absurd, and no doubt resented, to issue to him prohibitions of that sort.

1. The other question is the part played by the sleeper in causation of his fall. As to this I set out a passage from the plaintiff's cross–examination by Mr Hill:

"And correct me if I'm wrong, but I take it that you're suggesting that this accident occurred and you hurt your back because firstly you were required to carry the sleeper on your own, right?....Yes.

Do you agree with that?....Yes.

Secondly because of the slippery conditions?....That's correct.

Because of the wet grass and so on, and thirdly because you were in a hurry?....That's right.

And would it be fair to say that you believe the accident occurred primarily because you were in a rush?....Oh, I don't think so.

Well you wouldn't have been required to carry the sleeper on your own if you hadn't been in a rush, would you, on your evidence?....No.

Well, isn't it logical that the main reason for your accident is because of the rush that you were in to try and prepare the second burial site?....I wouldn't say that.

I see. Well what would you say then was the main reason for your accident?....The wet slippery and clayey condition.

HIS HONOUR: Yes, is that what you really mean? What caused you to fall?

WITNESS:      Wet slippery clayey condition, your Honour.

HIS HONOUR: What part, if any, did the carrying of the sleeper have in it?

WITNESS:      I beg your pardon?

HIS HONOUR: Did the sleeper cause you to fall?

WITNESS:      No, the wet – I would say the wet, slippery, clayey surface."

There is no other evidence that the carrying of the sleeper was causative of his fall. It is noteworthy that Mr Binns, to whom the plaintiff had given the impression that he injured his back whilst lifting the sleeper, said, on being informed of the state of the evidence:

"The way his Honour describes it, it's his fall that has caused the injury, and not the sleeper, so that he's had a fall on to his back, and the fact that the sleeper is there has been irrelevant because it's fallen across his stomach after he's hit the ground."

It follows that any causal connection between the carrying of the sleeper and the injury to his back must be found in the role of the sleeper portage in contributing to his fall. I am not satisfied on the evidence that there was any such contribution. One can envisage the possibility that the carriage of the sleeper might so contribute, but there is no evidence that it did.

1. I conclude that the system was defective and that it did involve a foreseeable risk of injury which a prudent and reasonable employer could and would have reduced by supplying more and better equipment. However, I am not satisfied, on the balance of probabilities, that the system caused or contributed to the plaintiff's injury, and therefore not satisfied that the plaintiff has a cause of action against the defendant. Nevertheless, I will proceed to assess damages.

1. There are no special damages, and no pre–trial loss of income. The plaintiff's accident has triggered symptoms in a back which was asymptomatic but distorted by Spondylolisthesis. He has continued to work with the defendant Trust, and has been able to do most of his work except digging to more than a metre below ground level. As most graves are dug by back hoe, this is not a serious problem. He has some discomfort and pain but exaggerates them. Nevertheless, continued heavy work will lead to a gradual increase in the severity of his symptoms, and his industrial attractiveness is diminished. I view his complaints about change in personality and diminished sex activity with a high degree of reserve. To the extent that they exist at all, resolution of this dispute will remove them. However, at 39, he has a prematurely symptomatic back and if successful, ought to be compensated for that. His present employment cannot be regarded as secure, and apart from his physical strength, he has few advantages in the labour market. His future is likely to involve periods of unemployment but the onset thereof may well be delayed. I assess damages for pain, suffering and loss of amenities at $15,000 and future economic loss at $90,000. However, for the reasons which I have given, there will be judgment for the defendant.