O'Reilly v Henson t/a Cavalier Foods
[2002] QDC 70
•3 April 2002
DISTRICT COURT OF QUEENSLAND
CITATION:
O’Reilly v Henson t/a Cavalier Foods [2002] QDC 070
PARTIES:
SANDRA JANE O’REILLY Plaintiff
-v-IVY ANN HENSON trading as CAVALIER FOODS
DefendantFILE NO/S:
D 5 of 2001
DIVISION:
Civil jurisdiction
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
3 April 2002
DELIVERED AT:
Brisbane
HEARING DATE:
6, 7, 8 March 2002
JUDGE:
Samios DCJ
ORDER:
Plaintiff’s claim is dismissed
CATCHWORDS:
Negligence – employment law - personal injuries – course of employment – breach of statutory duty.
Workplace Health and Safety Act 1995 section 26(3)(a), section 28(1), section 37 (1)(b)(i)
Workcover Queensland Act 1996 section 312(1)(b) and (2)
Humphrey Earl Limited v Speechly (1951) 84 CLR 126, 133; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281, 294;
Hamilton v Nuroof W.A. Pty Ltd (1956) 96 CLR 18, 25; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308-9;
Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47; Schiliro v Peppercorn Childcare CentresPty Ltd No. 2 (2001) 1 Qd R 518, 522);
Carrington Slipways Pty Ltd v Inspector Callagahan (1984)-8) Australian Industrial Safety Health and Welfare Selected Cases 48, 306; 52-152.COUNSEL:
Mr Curran for the plaintiff
Mr Geraghty for the defendantSOLICITORS:
John Davies & Co for the plaintiff
Hede Byrne & Hall for the defendant
In these proceedings the plaintiff claims against the defendant damages for personal injuries, loss and damage alleged by the plaintiff to have been caused by the defendant’s negligence and/or breach of contract and/or breach of statutory duty.
Liability and quantum are both in issue.
Between about early 1998 and November 2001 the defendant carried on business under the name “Cavalier Foods” (the business). The business involved the preparation of rolls such as chicken rolls and pizza rolls which were frozen and sold to fast food outlets.
The defendant employed the plaintiff as a kitchen hand in the business.
From about the end of 1996 to about January 2001 the defendant rented from Mr and Mrs Bool premises situated at 48 Dunne Street, Toowoomba (the premises). The defendant used the premises in the business for office purposes and storage.
The plaintiff’s evidence was that on 23 April 1999 the plaintiff was at the premises. The defendant had asked the plaintiff to assist the defendant to do deliveries as the defendant’s vehicle was being repaired. The plaintiff packed boxes and put them in her vehicle and drove her vehicle to do the deliveries. The boxes were taken from a shed at the back of the premises. There was a two track concrete driveway leading to a shed at the back of the premises. There was another shed beside that shed in which there were freezers. The plaintiff parked her vehicle on the driveway after having reversed the vehicle near one of the sheds. There was grass at the back of the house at the premises which was about an inch long.
The plaintiff said as she walked across the grass towards her vehicle her right foot twisted in a hole causing her to fall. The hole was concealed by grass and was adjacent to the driveway. The boxes the plaintiff was carrying came up to her upper chest. She held them with her arms underneath the boxes and her arms outstretched. She turned her head to the left looking in that direction to be careful not to trip. As the plaintiff put her right foot down into the hole her foot twisted and she fell over. The plaintiff described what happened by using her hand pressed against the edge of the witness box. Half of her foot went down as the other half went up on the edge of the hole. The plaintiff said the defendant was present. The plaintiff remarked to the defendant that there was a hole there. The plaintiff said the edges of the hole were straight and not slanted. The sides of the hole were vertical.
The plaintiff’s footwear on that date was tendered as an exhibit in the proceedings. No issue was taken in the proceedings regarding the plaintiff’s footwear.
The plaintiff said if she had been warned there was a hole there she would have walked around it. Further, the hole could have been filled in with sand or something like that without any difficulty.
The plaintiff said following her fall her foot was sore. When she got home she took her shoe off and noticed it was swollen. She got an icepack and wrapped it and elevated it. She returned to work but was unable to stay at work for long. She saw a doctor on 5 May 1999. The plaintiff thought she had stopped work by then.
The plaintiff said before she fell she had conversations with the defendant about the state of the lawn at the back of the house. It was a standing sort of a joke that the defendant never mowed her back lawn. The other employees said that to the defendant on many occasions. The defendant’s response was that she would get someone to mow it or she did not have time to do it.
The plaintiff attended the premises on 19 September 2000 with her solicitor. She said as she approached the hole she said to her solicitor that the hole was still there. She placed her foot in the hole. But it was later when she returned home that she thought to measure the depth of the hole with a ruler. Doing that she estimated that the depth of the hole was about 4 centimetres. Regarding the length and the width of the hole she said her foot with her sandal on fitted perfectly into the hole and she was a size 10 ½ and so the length was the length of her foot.
On the day the plaintiff weighed about 115 kilos. Her weight at the time of trial was 130 kilos. If she were in perfect shape for her size then she would probably weigh between 70 and 80 kilos.
The plaintiff said the hole was full of grass and the sides were straight. When her foot landed it went straight down. She put her hands in it and she felt it was just straight down the side. That is how it was on the day and on the day of her inspection on 19 September 2000.
The plaintiff claims that she suffered a fracture of her right fifth metatarsal and other loss and damage.
The defendant denies there was a hole in the grass. Further, the defendant denies that at the time the plaintiff was carrying the boxes to the vehicle the plaintiff was acting in the course of her employment. That is because this day was the plaintiff’s day off and the defendant claimed she had asked the plaintiff to drive the plaintiff’s vehicle as a favour as the defendant’s vehicle was being repaired.
The plaintiff’s solicitor, John Marshall Davies attended with the plaintiff at the premises on 19 September 2000. He did not have a measuring device such as a ruler or a tape measure with him. He prepared a diagram of the area where the plaintiff fell. This diagram is Exhibit 15. He gave evidence about his observations of the area where the plaintiff fell. He said regarding the spot indicated by the plaintiff as the place where she fell he could see there was “a fairly narrow sort of drain or a trench ... underneath the grass ...”. He wrote on the diagram “about one inch deep” and marked with a “X” a point about two metres from the cement apron of the shed at the rear of the premises. At the point marked “X” he asked his client to place her foot in the hole where she said it approximately occurred. He carefully observed her foot in the hole. The “trench” or “drain” was level with the top of her foot. He said the “trench” or “drain” was fairly shallow close to the cement apron of the shed but as it extended from the shed it became deeper. Where the plaintiff’s foot was there were decided edges and her foot fitted snugly into the depression. He recalls saying “Gee, that’s a dangerous little hole” or something to that effect. He said the side of the hole although not exactly vertical had a very steep gradient. He wrote on the diagram “grass at time so high you couldn’t see the hole”. That was something the plaintiff told him. On the day of his inspection he recalled observing that when he looked at the area from a distance the grass may have been a slightly different colour. He said the closer he got to the place where the plaintiff fell he could see the drain.
When cross examined Mr Davies agreed that the plaintiff’s particulars provided in the proceedings stated the depth was approximately 2.5 to 4 centimetres. Further, the width was 14 centimetres. When it was put to him the depression that was there was a maximum of 20 millimetres he said that it was obviously deeper than that. He also denied the depression was at least 20 centimetres wide and possibly 30 centimetres wide. He also denied the sides were gradual and of the order of 6 degrees. He said one could actually see the sides on either side of the plaintiff’s foot.
The plaintiff also called Terrence William Brennan. He is a health and safety consultant. He provided a report to the plaintiff’s solicitor. His report is a response to a report provided to the defendant by Roger John Kahler, a director of the Intersafe Group Pty Ltd, a company specializing amongst other things in accident analysis.
Mr Brennan did not inspect the area where the plaintiff fell. In his written report Mr Brennan says Mr Kahler did not in his report mention or use the advisory standard “The Code of Practice for Manual Handling”. There was no dispute in these proceedings that the Code was in force at the time the plaintiff fell. Mr Brennan refers in his report to s. 28 of the Workplace Health and Safety Act 1995 (the Act) which requires an employer to ensure the health and safety of each of the employer’s workers at work. Further, pursuant to s. 26(3) of the Act if an advisory standard states a way of managing exposure to risk a person may discharge their obligations only by following a stated way or by adopting and following another way that gives the same level of protection against the risk. In his opinion the lifting and carrying of boxes (which is what the plaintiff was doing at the time of her fall) comes under the definition of “manual handling” in the Code. Therefore the standard was relevant to activities being carried out by the plaintiff. Despite not having inspected the area in question, Mr Brennan expressed the view in his report that the defendant failed to discharge her obligation by not following the stated way unless she followed another way that gave the same level of protection which as it seemed to him either was never done or implemented.
Photographs (Exhibits 16, 17 and 18) and photographs contained in Mr Kahler’s report Exhibit 9 show the area where the plaintiff fell to be a grassed area. Although not clearly shown in the photographs there is a house at the front of the premises. The grassed area is at the rear of the premises. The driveway leads to the rear of the premises to a shed. There is another shed beside that shed. The grassed area is adjacent to the driveway and in front of the latter shed.
When shown the photographs Mr Brennan said the indentations and holes in the grass generally required an assessment under the Code. That is because he considered the surface of the grass is uneven. That is manual handling is defined in the Code as “any activity requiring the use of force otherwise by a person to lift ... carry or otherwise move, hold ... any inanimate object.” The lifting of boxes in his opinion comes within that definition. The Code requires Risk Identification as a first step for an employer to fulfill the employer’s obligations under the Code. He said clause 3.14 of the Code provides that a “yes” answer to a checklist of risk factors leads to further assessment under the Code, namely Risk Assessment. Under Risk Identification one of the key factors is Item 15, namely “are the floor working surfaces cluttered, uneven, slippery or otherwise unsafe”.
In his opinion as the grass is uneven that called for further risk assessment. Risk Assessment involves many factors which must be taken into account in making that assessment. Clause 4.36 of the Code provides that if a “yes” answer is given to the following question namely “are the floors and surfaces under foot uneven or slippery’, that indicates an increased risk. Risk Control is the final step under the Code. Risk Control is defined in the Code to mean the process of eliminating or reducing identified and assessed risk factors (clause 5.1). Then clause 5.3 provides that risk control can best be accomplished by a combination of :
(a) job redesign;
(b) mechanical handling equipment; and
(c) provision of training.
Basically Mr Brennan’s opinion was that if a person can visually see that there is an uneven surface that indicates a risk. He believed a reasonable person attending this site and looking at the grass could identify risks. Once the risk was identified then under the Code it became a matter of assessing the degree of risk. Amongst the factors involved in that assessment would be what was the environment used for, what tasks people were performing, were they carrying objects, how heavy those objects were and what were the dimensions. In his opinion this surface could not be considered even and would require assessment for risk. In his opinion that would lead to risk control which would require a decision about the control that suited the particular risk. Examples of risk control were filling in the hole or redirect traffic around the hole or give a warning to avoid the hole or provide mechanical assistance.
Mr Kahler inspected the premises on 26 February 2001. He found a depression within the ground adjacent to the driveway and running at a slight angle to the driveway. This depression was approximately 2 metres long. He placed his foot in the depression at a point 2100 millimetres from the shed door. He said there was slight ankle roll. At a point 3 metres from the garage door, he pressed a level firmly into the grass to contact the surface of the ground and the depth and width of the depression was measured relative to a concrete strip that runs parallel to the driveway. From his measurements he found the depression to be at least 200 millimetres wide with a maximum depth of 20 millimetres. He placed an inclinometer on the side slope of the depression at a distance 2100 millimetres from the garage door and that sideslope was 15 degrees over a 100 millimetre distance. At 3 metres from the garage door, the sideslope was 12 degrees over a 100 millimetre length. The depth he recorded was significantly less than those stated in the plaintiff’s Further and Better Particulars. That is, 20 millimetres found by Mr Kahler rather than 40 millimetres expressed by the plaintiff.
Mr Kahler’s opinion is that it was unlikely the plaintiff’s injury occurred as a consequence of encountering the depression but more as a consequence of the unexpectedness of the foot movement and the plaintiff’s response which resulted in her falling. With respect to risk identification techniques in his opinion the application of a range of techniques would not have highlighted the depression as requiring correction. When Mr Kahler gave evidence he said he measured the slope of the depression and found the slope to be typically 6 to 7 degrees to the horizontal. With some local variations it went to 12 degrees. There was a maximum at one place of 15 degrees. In my opinion the area covered by Mr Kahler’s measurements corresponds with the area indicated on Exhibit 15.
When he inspected the area he had in mind the injury was an ankle roll type injury. He looked around the area extensively looking for something that could have been more significant but could not find it. He also said there was arthroprometric research done about the degree of movement in the various joints in the body. If a person approached parallel to the length of the depression then depending on which side of the depression they put their foot on, the ankle would either roll in or roll out. In his opinion the angles that the ankle can roll in that direction are accommodated by the slopes that are there.
The medical evidence called in these proceedings is to the effect that the plaintiff had a condition before her fall called pes cavus, commonly called high arched feet. There is no evidence the plaintiff or the defendant was aware the plaintiff had high arched feet before her fall.
The plaintiff for many years had renal problems and had a kidney transplant on 15 November 1995. Dr Wilson, an orthopaedic surgeon stated that because of her renal transplant the plaintiff had osteoporosis/osteomalacia. Further, the plaintiff had bilateral pes cavus. He described the pes cavus as mild. However, in his opinion the plaintiff was more likely to sustain inversion injuries of her hindfoot and ankles. Dr Meibusch, another orthopaedic surgeon in his report dated 4 March 2002 was of the view the pes cavus made the plaintiff more likely to sustain inversion type injuries to the foot. He also stated the plaintiff had osteoporosis and osteomalacia from her renal problems and its treatment. In his opinion the bone weakness made her bones easy to fracture.
In Dr Miebusch’s opinion the plaintiff’s fracture was caused by a combination of these problems. In his opinion the placing of her foot in the slight depression was enough to cause the base of the fifth metatarsal to fracture because when the foot went into inversion, peronei tendons pulled on the base of the fifth metatarsal causing the fracture. In his opinion it was unlikely a normal human being would suffer a fracture of this type in a depression of the kind described to him by the defendant’s solicitors.
Dr Wilson agreed the plaintiff’s pre-existing condition of her bones and the pes cavus pre-disposed the plaintiff to the injury she suffered. However, he thought the plaintiff would probably have suffered some sort of injury stepping into the hole and twisting her ankle. He thought that under most circumstances she would have sustained a tear of her lateral ligament complex in her ankle rather than a fracture but because of her pes cavus and her osteoporosis she got the fracture. He thought a normal person could sustain an inversion type injury stepping on the edge of the depression with dimensions as claimed by the defendant. He described the injury in those circumstances as a lateral ligament complex injury.
Mr Brennan thought a disability a worker had would be something to be taken into account when undertaking a risk assessment. Mr Kahler did not consider the condition would have any effect on this situation because the movement is actually accommodated in bones higher up in the ankle and is not accommodated in the metatarsal.
Mr Kahler also gave evidence about the Code. In particular about Item 15 in the section from risk identification. Mr Kahler considered the Code provisions had to be interpreted in context and in the knowledge of what goes on with people walking and environments within which they are walking. In Mr Kahler’s opinion in the present situation there are many places in moving from the garage to the vehicle where there are height variations. For example the concrete pathway or the wheel tracks. But, because of the context of the incident he would not place a high emphasis on those variations. Therefore, even though it may be said looking at the whole area it is uneven, in his opinion an expert or consultant with appropriate training and understanding of what goes on and people falling would not interpret Item 15 as having relevancy to this situation because the clause does not quantify “uneven”. In his opinion it becomes a matter of making a judgment. In his opinion the nature of this area would not result in a “yes” tick because it would not be expected to create the opportunity for what is known in his area of expertise to be the majority of damage to people due to surface variation. Further, in his opinion if an outside consultant had been brought in the grass in question would not have been recognized as something likely to cause a risk to manual handling.
In cross examination Mr Kahler agreed that in hindsight the depression could be filled in at a minimal cost. However, he said looking at the front end of the situation he was not convinced people would have extended their perception of the size of the depression that it was going to create some significant over-reaction with people moving in the area. If the sides were steeper and there were sharper changes in elevation he would agree remedial action was called for.
The defendant’s evidence was that she rented the premises in about the end of 1996. She had her freezers and her office for her business at the premises. The only time that work was done at the premises was when the defendant cooked some meat in the kitchen in the house. She said no work of spreading rolls, filling rolls and wrapping rolls was carried out at the premises. According to the defendant, the plaintiff did not at any stage do any work at the premises. She said the plaintiff would visit the defendant at the house and if the defendant had not dropped her pay off, the plaintiff would come to the premises and pick her pay up. The plaintiff would not normally go out to where the grass was in the backyard except once when the plaintiff’s son was offered a job to clean out some boxes.
The defendant said that her vehicle had broken down and she had to get her deliveries done. Therefore, she rang the plaintiff the night before and asked if she was not doing anything would she come over and drive the defendant so that the defendant could do the deliveries. The defendant said she asked the plaintiff to do this as a favour. The defendant offered the plaintiff petrol money. The plaintiff came to the premises with her vehicle. Two deliveries were done before the plaintiff’s fall. The defendant did not see the plaintiff fall. However, the defendant was at the back of the shed and heard a noise and wondered what that was. She walked out and saw the plaintiff on the ground. She asked the plaintiff what happened and the plaintiff said she fell. That was all that the plaintiff said. Before the plaintiff’s fall the defendant was not aware of any hole or depression in the area. She said the lawn was mowed regularly. The defendant became aware two weeks later that the plaintiff suffered an injury. After the plaintiff made a worker’s compensation claim the defendant went looking for the hole. She could not find a hole. She found a depression where the plaintiff fell. She said it was not very deep. The edge was not sharp. It was very smooth.
The defendant called a number of other witnesses.
Michael James Tierney who was employed by the Queensland Government as a Workplace Health and Safety Inspector went to the premises on 16 March 2001 following a complaint. The information he had was that a lady tripped over at the premises. He went there to have a look at the ground and the area in front of the shed at the back of the premises to make an assessment. In his report to his superior he reported amongst other things that the grassed area had minor undulations in the order of 30 millimetres maximum. In his opinion the ground conditions were in a fair to good condition for pedestrian traffic. There did not appear to be an excessively large trip hazard at the time of the inspection. He did not consider there was any breach of the Code. When he made his assessment he was not sure where the person tripped. He looked around the driveway, the path areas and the lawn areas.
Henrick Douglas Bradford, an insurance loss adjustor, inspected the premises on 7 August 2000. He took the photographs that are Exhibits 16, 17 and 18. He looked for a hole. He could not find a hole. He said the lawn was relatively thick and spongy and there were depressions in the lawn surface approximately 20 millimetres in depth. When the plaintiff gave evidence she marked on the photographs the point where she specifically fell. Mr Bradford not having the benefit of that indication of where the plaintiff fell did not specifically look in that area. He walked back and forth across the corner area of the grass. In my opinion Mr Bradford was indicating by his evidence he walked in the area generally indicated by the plaintiff as being the area where she fell. He did not detect a hole. He detected a depression. However, initially in his evidence he indicated that depression was coming at a 45 degree angle from the point made by the leading edge of the driveway and the leading edge of the apron of the garage. However, later in his evidence Mr Bradford indicated the depression he detected was consistent with a depression located by Mr Kahler and referred to in Mr Kahler’s report. When shown Exhibit 17 he could see the discernible darker green strip. If the depression were a spoon drain he agreed the green strip would be at a lower level than the surrounding area. The depression though was not apparent to him when he took the photograph. He said if the depression had an abrupt edge he would assume he would have felt it but he did not.
David Thomas Gates had been to the premises between 30 to 40 times over the years the defendant lived there. He had walked over the general area where the plaintiff fell. He did not recall having any problems other than with the gravel next to the driveway. He never noticed a depression in the vicinity of the shed.
Bette Leah Bool also gave evidence. Mrs Bool and her husband have owned the premises for about 9½ years. They rented the premises to the defendant. Mrs Bool would visit the premises to do inspections and if a tenant had something needing attention normally she and her husband would go to the premises to check out what was the matter. On those occasions she would go into the back yard and always see the lawn. She did not notice any problems with holes or areas people could fall into. She walked over the area and never felt any problems. After the defendant moved out Mrs Bool lived at the premises for about 11 months. She became aware of the claim in these proceedings. She deliberately walked over the area and did not notice anything. She never received any complaints from the tenants about the lawn. When she became aware of this proceeding she had a look at the area and noticed an indentation in the area where the darker grass is shown in Exhibit 17. She said regarding that depression before the defendant’s tenancy the protective covering for an electricity cable from the house to the shed required removal. Therefore the lawn was dug out to take the cable out and replace it. She believed the trench had been filled in and it took some time for the grass to re-grow. After that she never noticed any depression and nobody complained to her.
Finally, the defendant’s solicitor Paul William Hede gave evidence. He inspected the premises on 19 September 2000. That was the same day the plaintiff and Mr Davies inspected the premises. He did not have any particulars from the plaintiff at that stage. The defendant showed him the area where the plaintiff fell. Mr Hede’s particular interest was to see whether he could detect any hole or any trip hazard. He walked over the area that had been identified to him. There was no hole and there were indentations in the ground but nothing with a sharp edge. He thought there was nothing particularly unusual nor anything of particular significance in the area. There were undulations but it was not rough. He was satisfied he was looking at the same area the plaintiff had indicated as the relevant area because he saw the plaintiff and her solicitor spend some time at a point approximately 2 metres from the edge of the concrete in front of the garage. Mr Hede did not detect anything in the nature of a sharp edge or trip hazard.
When Mr Hede was cross examined he said he did not notice a depression in the area represented by the green strip shown on Exhibit 17. He said there was no deep depression at all. From his inspection he did not notice anything of a significant drop or anything out of the ordinary. He could not comment on Mr Davies’ evidence that the depression started off as a shallow depression and then became deeper as it moved away from the concrete apron.
In my opinion the plaintiff’s evidence regarding the basis upon which she was at the premises on that day is not significantly different to the defendant’s evidence. There is a conflict in the evidence about how often the plaintiff may have made deliveries for the defendant before this day. Further, there was a conflict between the plaintiff and the defendant about whether the defendant had agreed to give the plaintiff a bottle of wine in addition to paying the plaintiff for her petrol.
The plaintiff’s evidence that there was a hole in the grass and her evidence about its dimensions and that the hole had straight edges was supported by her solicitor Mr Davies. However, the evidence from the plaintiff and her solicitor about these matters was in conflict with the evidence of Mr Kahler. Further, the evidence from the plaintiff and Mr Davies that the hole was observable on the day they inspected the premises was in conflict with the evidence of Mr Hede whose evidence was to the effect he did not see anything significant. Further, the evidence of the plaintiff and Mr Davies that there was a ‘hole’ of some significance in this area was in conflict with the evidence of the defendant, Mr Tierney, Mr Bradford, Mr Gates and Mrs Bool whose evidence was to the effect that they had not seen or experienced anything significant in this area..
I found the plaintiff’s evidence about the hole to be imprecise and not persuasive.
When the plaintiff had the opportunity to inspect the premises on 19 September 2000 no specific measurements were made by use of a ruler or otherwise. The plaintiff made estimates based on a recollection of seeing her foot in the hole on the inspection and then going home and attempting to measure her foot by making a comparison between her recollection about the position of her foot in the hole and a ruler. When the plaintiff gave evidence she indicated that she had some difficulty recollecting these matters as it had been some 12 months earlier that she had carried out the inspection. Further, when the trial commenced it was not the plaintiff’s intention to call her solicitor (T. 214/30). The justification for calling Mr Davies was that counsel for the plaintiff considered that as the plaintiff was cross-examined about Exhibit 15 that made it necessary to call Mr Davies. However, Mr Davies’ evidence went beyond merely identifying the document and explaining references in his handwriting on the document. That is, his evidence was that he could see the hole as he approached it and he considered it was dangerous. Further, that it had steep sides. Further, notwithstanding he marked on the document that the depth was about an inch, in his evidence he maintained the depth was more than 20 millimetres. However, his notation on Exhibit 15 that the depth was about one inch is consistent with Mr Kahler’s evidence.
On the other hand in my opinion Mr Kahler’s evidence shows that Mr Kahler approached the task with more precision. He used instruments and made a record of his findings. He also measured the slope using an instrument.
It was not suggested to the defendant she should have been aware of the depression because of the darker coloured grass where the plaintiff fell. It was part of Mr Davies’ evidence that he recalled the grass was a slightly different colour than the surrounding grass on his inspection. An examination of Exhibit 17 does show the grass is a darker colour than the surrounding grass where the witnesses have indicated the presence of the hole or the depression. However, it was not suggested by anyone that this was apparent on the day the plaintiff fell or before the plaintiff fell.
When counsel for the defendant cross examined the plaintiff, he accepted the plaintiff was given a bottle of wine by the defendant. He did not challenge the plaintiff’s answer in that regard. When the defendant gave evidence the defendant denied she gave the plaintiff a bottle of wine. Mr Hede’s evidence was that when he took instructions from the defendant her instructions did not include instructions that the defendant agreed to give the plaintiff a bottle of wine nor that she gave the plaintiff a bottle of wine. While it is possible the defendant may have given counsel for the defendant those instructions between Mr Hede taking the defendant’s statement and when the plaintiff was cross examined, my observation of counsel for the defendant when he accepted the plaintiff’s evidence that the defendant gave her a bottle of wine was that counsel was merely accepting the plaintiff’s evidence without giving due regard to what were his instructions. That was the tone of counsel’s cross-examination. In my opinion the acceptance that the defendant gave the plaintiff a bottle of wine by counsel for the defendant was merely an error on his part. This conflict is not a reason why I would reject the defendant’s evidence.
However, I was not impressed with the defendant. I consider she gave answers in her evidence that were contrived and which she felt from her point of view could assist the defence of the plaintiff’s claim. That does not mean I accept the plaintiff’s evidence as there are aspects of her evidence which I do not accept.
In Henderson v Commissioner of Railways(WA) (1937) 58 CLR 281 at 294 Dixon J said:
“The general principle governing the ascertainment of the ‘course of employment’ appears now settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of employment, the acts of the workman must be part of his service to the employer ... where the accident arises ... in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorised to do in order to carry out his actual duties.”
Further, in Humphrey Earl Limited v Speechly (1951) 84 CLR 126 at 133 Dixon J said:
“ When an accident occurs in intervals between work the question whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties ....”
I accept the plaintiff fell as she was carrying boxes to her vehicle that day. Except that the plaintiff may have made a delivery for the defendant on one other occasion to Oakey, I do not accept the plaintiff made deliveries for the defendant on other occasions before this day. In my opinion when the plaintiff came to the premises to assist the defendant to do the deliveries that day the plaintiff ceased to be on her day off. I accept the plaintiff had already carried boxes to the vehicle before her fall. Further, the plaintiff was not expressly asked to do so by the defendant. In my opinion by allowing the plaintiff to carry the boxes to the vehicle before her fall the defendant authorized that work and authorized the work the plaintiff was doing when the plaintiff fell. I accept the plaintiff and the defendant agreed that there would be no monetary payment for the plaintiff’s work that day. In my opinion that meant only that the work would not be paid for. In my opinion that did not mean the plaintiff was not engaged in the defendant’s employment when she fell as she was carrying the boxes to the vehicle.
Therefore, I find the plaintiff was acting in the course of her employment with the defendant as she was carrying the boxes to the vehicle and fell to the ground.
At the conclusion of the evidence in these proceedings, Mrs Bool provided evidence, which I accept, that this area had been disturbed to replace an electricity line. Mr Kahler found a depression in that area. That is what I would expect after hearing Mrs Bool’s evidence. Further, that there has been a depression in the area is also consistent with the darker shade of green that in my opinion can be seen in Exhibit 17.
However, I do not accept there was a hole or a depression with the dimensions and edges of the kind claimed by the plaintiff in these proceedings. I accept Mr Kahler’s evidence about the dimensions and gradient of the edges of the depression because he approached his task with the use of instruments by which objective measurement could be obtained. Further, Mr Kahler’s evidence about the depth of the depression corresponds with that noted by Mr Davies on the plan drawn by Mr Davies from his inspection. It may be that Mr Davies’ evidence given at the trial was more extensive than what was noted on Exhibit 15. However, even Mr Davies did not approach the matter with the use of any measuring devices. Further, if Mr Davies considered the depression to be deeper than what was indicated by him on Exhibit 15, I would have thought that is what would have been noted on Exhibit 15. It may be the plaintiff’s instructions were that it was as much as 4 centimetres in depth. However, if the depth was such that the plaintiff came to that estimation at home when she had the opportunity to measure it, I am surprised that was not an estimation Mr Davies might have made at least when he inspected the site and recorded that on Exhibit 15. The plaintiff did not impress me as an accurate person and certainly not someone more observant than Mr Davies. Apart from Mr Davies the plaintiff called no other person who had inspected the area nor anyone who had any experience with the area. Because Mr Davies gave evidence, Mr Hede the solicitor for the defendant gave evidence. Mr Hede’s evidence was that he could not detect anything significant. Mr Hede’s evidence is supported by Mr Kahler’s evidence and in turn the evidence of Mr Tierney, Mr Gates, Mr Bradford and Mrs Bool. I accept Mr Hede’s evidence. I also accept the evidence of Mr Tierney, Mr Gates, Mr Bradford and Mrs Bool. The evidence of these witnesses that I accept I consider is consistent one with the other and with Mr Kahler.
Therefore, I do not accept the plaintiff’s evidence nor Mr Davies’ evidence about the dimensions of the depression, the gradient of the sides of the depression and that a “hole” was observable as they approached the area where the plaintiff fell when they inspected the premises on 19 September 2000.
Therefore, I find when the plaintiff fell there was a depression in the area where the plaintiff fell. The depression was about 2 metres long, about 200 millimetres wide and about 20 millimetres deep. Further the edges were about 6 to 7 degrees in gradient to the horizontal and in some places as much as 12 to 15 degrees in gradient to the horizontal. I accept the plaintiff placed her right foot on the edge of the depression. I accept part of the plaintiff’s right foot rolled down and part of the plaintiff’s foot rolled up. I find the plaintiff suffered a fractured fifth metatarsal in her right foot. I find the plaintiff’s fractured fifth metatarsal in her right foot was caused when the plaintiff’s foot rolled on the edge of the depression. I find an injury of some kind could have been suffered by a person placing their foot on the edge of the depression. I find the depression was not visible as it was covered by grass.
Although there is a darker green area apparent in Exhibit 17 I am not satisfied this darker green area was in existence before the plaintiff fell. In my opinion the darker green area of grass apparent in Exhibit 17 may have resulted from the amount of rain that had fallen before the photograph was taken. I find the defendant was not aware of the existence of the depression before the plaintiff fell. I find when the plaintiff fell the grass was about 25 millimetres tall. I find the defendant kept the grass regularly mowed. I find the grassed area generally had undulations in the order of 20 millimetres to 30 millimetres.
I accept Mr Kahler’s evidence that in the circumstances the Code would not have applied to this area where the plaintiff fell. Further, the Code would not have required any control measures to be implemented by the defendant for the health and safety of the plaintiff. Hence I do not accept the evidence of Mr Brennan on these issues. That is because I accept Mr Kahler’s reasons that the application of the Code requires consideration to be given to the context of the application of the Code to the circumstances and a judgment made about its application to the relevant circumstances of the plaintiff’s work at these premises.
The duty owed by the defendant to the plaintiff, at common law and under the contract of employment, was to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury (Hamilton v Nuroof W.A.Pty Ltd (1956) 96 CLR 18, 25.)
Furthermore, in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, at 308-9, Mason, Wilson and Dawson JJ said:
“Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is ‘not a low one’ ... whether or not it will be found to have been satisfied is always a question of fact to be determined in light of the circumstances of each case ... on the other hand, being a question of fact, it is undoubtedly true, as McHugh JA said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. ... in every case the tribunal of fact ... must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer ...”.
Finally, I refer to Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47 where Mason J said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
I accept the defendant was the person likely to remove boxes from the shed to be placed in a vehicle for delivery. However, I do not accept the defendant’s evidence to the effect an employee would have no reason to walk over this area. The defendant stored boxes in freezers in the shed before delivery to customers. Therefore, I find it was at least possible employees may have been required in the course of their work for the defendant to walk over the area, as happened on this day.
I accept it would not have been difficult to remove the depression. To do so would have required only a few spades of soil or sand. However, I find the occasions for an employee to walk over this grassed area were likely to be infrequent. The defendant was not aware of the depression. Further, I find there was nothing significant about the depression or the grassed area or the work to be done that could reasonably require the defendant to locate and eliminate the depression or take some other step or steps to avoid exposing the plaintiff to unnecessary risk of injury.
In my opinion, the depression was not likely to become apparent to the defendant unless the defendant or someone else who told the defendant, had a negative experience with the depression. In my opinion the available degree of movement in the joints of a person’s body including their ankle and the direction of approach to the length of the depression are factors that would impact upon the degree of probability of a negative experience. In my opinion the dimensions and gradient of the edges of the depression were such that there was a very low degree of probability of a negative experience.
In the course of the trial the plaintiff’s “renal problems” were referred to without identifying what those problems were and how those problems may have impacted on her fall.
Another matter that was referred to in these proceedings is that the plaintiff had the pre-existing condition pes cavus. The plaintiff was unaware of this condition before her fall. There was no evidence the defendant was or could be aware of this condition in the plaintiff.
Finally, the plaintiff was overweight at the time of her fall.
In my opinion, in the circumstances the plaintiff’s ‘renal problems’, her pes cavus and her weight did not require the defendant to take any step or steps to avoid exposing the plaintiff to unnecessary risk of injury. In my opinion in all the circumstances the defendant could not reasonably foresee a risk of injury to the plaintiff.
Therefore, I find the defendant did not breach the duty of care owed to the plaintiff at common law nor breach the contract of employment between the plaintiff and the defendant.
There remains to be considered s. 28 of the Act. That provides:
“An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.”
This section imposes a civil liability on an employer who has failed to ensure the health and safety of his or her employees and thereby causes injury to the employee (Schiliro v Peppercorn Childcare Centres Pty Ltd No. 2 (2001) 1 Qd R 518, 532).
However, the employer’s liability is subject to the employer demonstrating that it has discharged its obligations under ss. 26 or 27 or that it has established a defence under s. 37 of the Act. This adds to the common law of negligence by placing the onus on employers to establish these matters under the Act, once the employee has proved the employer breached the obligation to ensure the workplace health and safety of the employee, thereby causing injury to the employee. Thus s. 28(1) of the Act provides a civil cause of action to such an employee (Schiliro p. 532-3).
The only authority I am aware of in which the words “to ensure” in this context have been considered is Carrington Slipways Pty Ltd v Inspector Callagahan (1984)-8) Australian Industrial Safety Health and Welfare Selected Cases 48, 306; 52-152. In that case Watson J held the words were not to be considered in any way other than their ordinary meaning of guaranteeing, securing or making certain.
To come to a conclusion that the defendant has breached s. 28(1) of the Act requires consideration of ss. 26(3)(a) and 37(1)(b)(i) of the Act.
Section 26(3) provides:
“(1) If an advisory standard or industry code of practice states a way of managing exposure to a risk, a person discharges the person’s workplace health and safety obligation only by –
(a)adopting and following a stated way that manages exposure to the risk.”
Section 37(1)(b)(i) provides:
“It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under Division 2 or 3 for the person to prove –
(b)if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk –
(i)that the person adopted and followed a stated way to prevent the contravention.”
It is not suggested by the plaintiff in these proceedings that the weight of the boxes being carried by the plaintiff exceeded the recommendations in the Code. The Code requires risk identification, assessment and control. Risk identification is only the first step in identifying factors likely to cause manual handling injury and is aimed at identifying tasks likely to be a risk to health and safety; it requires identification and placing in priority order the jobs or tasks which require assessment by an analysis of workplace injury records; consultation with employees and direct observation or inspection of the task or work area (Code cl. 3.3). Only if any of these steps indicate the need for assessment is it necessary to move onto the second step namely risk assessment (Schiliro p. 536).
It was not suggested there were any workplace injury records which identified the plaintiff’s task as a risk. There was no evidence the plaintiff or anyone else raised or had concerns as to the safety of carrying boxes of food from the shed to a vehicle parked on the driveway. In my opinion there would be nothing unusual about the way the plaintiff performed her task on that or any other occasion so that direct observation would identify a risk. The Code provides by cl. 3.4 that if a “yes” answer is given to the key risk factor such as Item 15 that indicates the need for further assessment as outlined in s. 4 – Risk Assessment.
As to that Item 15, I accept Mr Kahler’s evidence that should be seen in context. That context being the nature of the terrain in this instance to identify any risk. In my opinion even if a risk were identified, this was not a workplace that could reasonably justify a smooth concrete surface for employees to walk over from the freezers in the shed to wherever the vehicle was to be loaded. In my opinion there was not enough work being done there to elevate the area, if it were identified as providing a risk, to the next stage, risk assessment. If I were wrong to conclude Item 15 in the key risk factors would not have led to a “yes” answer in the circumstances, then the next consideration is risk assessment. As to risk assessment I find there was no likelihood of a risk of health and safety in the plaintiff carrying the boxes to the vehicle and no further risk assessment was necessary under the Code.
I find there was no reasonably foreseeable risk in this case. Therefore, there was no occasion to apply the Code further to the circumstances. Therefore, I find ss. 26(3) and 37(1)(b) of the Act were satisfied by the defendant.
Therefore, I find the defendant was not in breach of the statutory duty owed to the plaintiff.
The defendant in these proceedings also relies upon s. 312(1)(b) of the Workcover Queensland Act 1996 which provides:
“1. In deciding whether a claimant is entitled to recover damages not reduced on account of contributory negligence, or at all, all courts must have regard to whether the claimant has proved such of the following matters as are relevant to the claim –
...(b)that the actual and direct event giving rise to the worker’s injury was actually foreseen or reasonably readily foreseeable by the employer.”
Sub-section 3 of s. 312 provides that if the claimant fails to prove the matter mentioned in sub-s. (1)(b), the court must dismiss the claim.
In my opinion in the circumstances the plaintiff has failed to prove the matter mentioned in sub-s. (1)(b) of s. 312. Therefore, I must dismiss the plaintiff’s claim.
Regarding the quantum of the plaintiff’s damages there is no dispute on the medical evidence that the plaintiff suffered a right 5th metatarsal fracture. Her foot was placed in a cast for a 10 day period. There was non-union of the fracture. Therefore, the plaintiff had significant co-morbidities because of the renal transplant in 1995. The plaintiff therefore required internal fixation of the fracture and a bone graft. This was performed on 28 July 1999. The removal of the screw took place on 19 November 1999. When seen by Dr Ivers, orthopaedic surgeon on 14 January 2000 the plaintiff told him that although she normally stood at work she felt that she could return to her usual work if she could sit on a stool. Dr Ivers thought that would be appropriate. Therefore, he thought she should be able to return to work on 24 January 2000. His assessment of permanent impairment was 5% permanent impairment.
Dr Wilson, an orthopaedic surgeon saw the plaintiff on 9 March 2001. In his opinion the plaintiff’s permanent disability was greater than her impairment. In his opinion her level of permanent impairment was consistent with 10% of the foot, 7% of the lower extremity and 3% of the whole person.
When he was cross-examined Dr Wilson was asked to take into account the plaintiff’s pre-existing condition pes cavus and renal dysfunction. He thought those two predisposing factors would contribute at least some 50% of her problem. Dr Wilson’s opinion was that the effect of the injury upon the plaintiff’s capacity to work was a small effect or even a negligible or zero effect.
Dr Meibusch, another orthopaedic surgeon, examined the plaintiff on 30 March 2001. He considered that any contribution from the injury would be in the vicinity of 5% loss of use of the lower limb. He thought her future prognosis would be governed by her other medical problems and this fracture would not contribute to any deterioration she has.
The plaintiff returned to work with the defendant on 24 January 2000. Both the plaintiff and the defendant agreed that the defendant asked the plaintiff to sign a contract for her employment and the plaintiff refused to do so. The plaintiff accepted that was the end of her employment because she refused to sign the contract. The plaintiff said if she had not hurt her foot she would still probably be working for the defendant in the defendant’s business. However, the defendant’s business ceased in November last year when the defendant became bankrupt. If the plaintiff could not have worked with the defendant then she would have gone out and looked for another job. She would have tried to continue to work for as long as she could.
The plaintiff also said that she would undergo a pain management program as suggested by the occupational therapist if she had the money to do so. She also would purchase a special chair for the shower. The plaintiff also attended the Commonwealth Rehabilitation Service for rehabilitation for which there was a fee charged.
The plaintiff was 31 years of age when she suffered her injury and is now 34 years of age. I find the plaintiff was pre-disposed to suffering an injury of this kind. In my opinion the plaintiff could very easily have suffered this injury in the normal course of her everyday life. Further, a pain management course has good prospects of success in resolving the plaintiff’s pain. Therefore, her damages for future pain and suffering and loss of amenities of life must be significantly discounted.
I would assess the plaintiff’s damages for pain and suffering and loss of amenities of life in the sum of $17,000.
I would allow the plaintiff interest on past pain and suffering and loss of amenities of life on the sum of $12,000 at 2% per annum for 2.94 years which is the sum of $705.60.
I would act upon the evidence from the defendant as to the plaintiff’s average weekly earnings before the accident. In my opinion it was unlikely the plaintiff would earn more than her average weekly earnings in the future. The plaintiff had been out of employment for many years before she found employment with the defendant. Besides not having a consistent work history from when the plaintiff commenced dialysis in August 1992 to when she obtained her employment with the defendant about 12 and 18 months before she suffered her injury, the plaintiff did not have any skills to improve her prospects of success in obtaining employment in the open labour market. Further, my assessment of the plaintiff is that she was a person who was content to earn what she was earning by way of average weekly earnings so that it would not interfere with her pension to which she had an entitlement because of her disability. I do not accept the plaintiff’s evidence that she could have worked 8 hours a day, five days a week. In my opinion the casual nature of the work the plaintiff had with the defendant suited the defendant’s circumstances.
Finally, with respect to past economic loss, in my opinion that should be assessed at the plaintiff’s average weekly earnings from about the end of April 1999 to 24th January 2000. However, after 24 January 2000 a judgment must be made about the probability the plaintiff could have maintained work at that average thereafter because the plaintiff voluntarily ceased her employment with the defendant because she refused to sign the contract and would have had to then find another job. In my opinion her prospects of success in finding another job would not have been good.
Therefore, I assess the plaintiff’s past economic loss to be 37 weeks at $65 per week which is the sum of $2,405 and thereafter to the date of this judgment 114 weeks at $65 per week discounted by 50%. That is the sum of $3,705. The total therefore is $6,110.
I would allow the plaintiff interest on the sum of $3,507 after deducting $2,603 for the weekly benefit received by the plaintiff from Workcover at the rate of 5% per annum for 2.94 years. This is a sum of $515.52.
With respect to future economic loss there are a number of relevant considerations. First of all I would accept the evidence of Dr Meibusch that the injury and the effects of the injury would not have prevented the plaintiff from work. In my opinion, Dr Wilson’s evidence was to the same effect. Further, it is reasonable in my opinion to allow the plaintiff the cost of pain management which seems to be a significant factor in her case. Therefore, for the cost of the pain management course of $3,000, in my opinion there are good prospects that the plaintiff’s pain could be resolved. Therefore, I would not allow the plaintiff damages for future economic loss. I would allow the plaintiff the cost of the pain management course in the sum of $3,000. The plaintiff would also recover Workcover expenses $4,903, Health Insurance Commission refund of $232.90 and the charge for rehabilitation from the Commonwealth Rehabilitation Service in the sum of $1.002.10.
I would also allow the plaintiff the cost of a shower chair in the sum of $250.
These items total $33,719.12.
From that has to be deducted the Workcover refund of the sum of $7,506.
That would leave a resulting sum for damages of $26,213.12
However, because of my findings on liability I dismiss the plaintiff’s claim.
I will hear the parties on the question of costs.
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