Rehrmann v Carins

[1989] TASSC 124

Serial No B46/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Rehrmann v Carins [1989] TASSC 124; B46/1989

PARTIES:  REHRMANN
  v
  CARINS, D R
  CARINS, J R
  W A McKAY PTY LTD
  TASMANIAN PULP AND FOREST HOLDINGS LTD
  JOHNSON, M F
  JOHNSON J M

FILE NO:  2848/1985
DELIVERED ON:  25 October 1989
JUDGMENT OF:  The Master

Judgment Number:  B46/1989
Number of paragraphs:  16

Serial No B46/1989
File No 2848/1985

REHRMANN v D R CARINS, J R CARINS, W A McKAY PTY LTD, TASMANIAN PULP AND FOREST HOLDINGS LTD, M F JOHNSON, J M JOHNSON

REASONS FOR JUDGMENT  THE MASTER

25 October 1989

1. The plaintiff has filed an application seeking an extension of time, pursuant to s5(3) of the Limitation Act 1974, for joining the fourth defendants as defendants in this action.

1. In the statement of claim the plaintiff alleges that he suffered personal injuries on 17 October 1984 when, as an employee of the first defendant, he was delivering logs for the third defendant to sawmill premises, which at that time, he believed were owned and occupied by the second defendant. The plaintiff further alleges that when unloading logs from the truck at the sawmill premises he released binder chains and a log was dislodged from the truck. The log struck him resulting in serious leg injuries.

1. The plaintiff claims that his injuries resulted from the negligence of each of the defendants. He alleges the following particulars of negligence against the second defendant, W A McKay Pty Ltd:–

(a)Failed to secure the logs with a fork lift before the plaintiff undid the binder chains;

(b)Permitted the practice to arise at its mill whereby log truck drivers undid binder chains before the load was secure.

1. On 19 December 1988 the second defendant served an amended defence upon the plaintiff's solicitors whereupon they became aware for the first time that it was alleged by the second defendant that the fourth defendants were the occupiers of the sawmill premises at the material time. These facts are deposed to by the plaintiff's solicitor, Mr Kenneth Eric Read, in his affidavit sworn 8 June 1989, and tendered upon this application. As the three year limitation period for joining the fourth defendants as parties had expired, it was necessary for the plaintiff to lodge this application.

1. The plaintiff must establish upon the application that a reasonable explanation has been given for the total period of the delay, that the fourth defendants will not be significantly prejudiced by the delay and that the plaintiff has a prima facie case in negligence and/or breach of duty against the fourth defendants.

1. I am satisfied that the plaintiff has given a reasonable explanation for the delay and that no specific prejudice has been sustained by the fourth defendants. Mr R Webster, of counsel for the fourth defendants, conceded that the real issue upon this application rested with whether the plaintiff has established a prima facie case against the fourth defendants.

1. Three affidavits sworn by the plaintiff were tendered in support of the application. The fourth defendants did not file any affidavits. In his first affidavit, sworn 15 February 1989, the plaintiff added the further following particular of negligence:–

"(c)Failed to post any sign or provide any warning that the load should be secured prior to undoing the binder chains."

1. In his second affidavit, sworn 9 June 1989, the plaintiff deposed in paragraphs 2, 3, 4 and 5 as follows:–

"2On the 17th November, 1984 I drove to the mill which I now understand was operated and occupied by M F & J M Johnson. I was driving a truck carrying a jinker which had either nine or eleven logs on it. Four of these logs were long logs and the remainder were shorts.

3When I arrived at the mill there was no sign to warn me not to un–do my binder chains until the load was secure. No fork–lift was visible which could have been used to secure the load. No loader clamps were available.

4I alighted from the truck and started to un–do my binder chains from the driver's side. I un–did the front chain and then the back and then the centre. I let the centre chain go very slowly to watch for any movement at all. There was no movement. The log must have moved as soon as I took the hook from the chain. That is, a log slipped from the front on the driver's side which was up against the front peg but was not long enough to get to the centre piece. This log slipped and struck me on the leg causing personal injuries to me.

5I believe that I would not have been injured had the occupier and operator of the mill provided some means of securing the logs before the binder chains were undone. Such means are common at mills such as the Tasmanian Pulp & Forest Holdings chip mill and Kilndried Hardwoods. I normally go to those places and my load is secured by a loader which clamps the load down prior to undoing the binder chains. In that way if there is a short log such as the one that had slipped from the load on this day it could not fall once the chains were undone because it would be secured by the loader clamps. An alternative method is to provide a fork lift truck and place the tines of the fork lift under the logs and mast up against the logs. The binder chains are then undone from the side of the load supported by the fork lift."

1. In a third affidavit, sworn by the plaintiff on 28 September 1989, he deposed in paragraphs 2, 3 and 4 as follows:–

"2I had visited the mill apparently occupied by M F and J M Johnson on several occasions prior to the 17th November, 1984.

3On no occasion when I visited the mill prior to the 17th November, 1984 had the occupier or any person acting on his behalf secured the logs on my jinker before I undid the binder chains.

4The only contact I had with any person on the property occupied by M F & J M Johnson was with the forklift truck driver. At no time did any person give me any direction or make any attempt to ensure that my load was safely secured before I undid the binder chains."

1. At the hearing Mr Read of counsel for the plaintiff also referred to s32 of the Industrial Safety, Health and Welfare Act 1977, and reg201(b) of the Regulations made pursuant to the Act. Those provisions are as follows:–

"32      Every occupier of a work place and every person carrying on an industry shall take reasonable precautions to ensure the health and safety of persons employed or engaged at that work place or in that industry."

"201 – Without prejudice to the application of any other provision of these regulations, the occupier of any work place shall cause –

(a)       ........

(b)       all machinery, plant, equipment, and fittings within the work place,

to be maintained in such a condition as does not constitute a risk to the safety or health of the workmen employed therein, and shall cause the working methods and processes carried on in the work place to be so carried on as to not constitute a risk to the safety or health of the workmen therein."

1. Upon this material it is submitted by counsel for the plaintiff that a prima facie case has been established. To do so the plaintiff needs to establish that the fourth defendants owed him a duty of care and that the duty has been breached.

1. Until recent years the courts distinguished between an occupier's special duty to persons entering premises and the general duty owed under the law of negligence as defined in Donoghue v Stevenson [1932] AC 562. It now seems, at least in Australia, that this distinction has been largely obliterated. In Australian Safeway Stores Pty Ltd v Zaluna (1986–1987) 69 ALR 615, the High Court traced the development of the law of occupier's liability and negligence, beginning with Indermaur v Dames [1866] LR 1 CP 274, to Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7. In Safeway Stores v Zaluna (supra) the majority of the members of the High Court held that the duty which an occupier of land owed to an invitee was properly to be seen as the ordinary common law duty to take reasonable care. In Papantonakis (see supra) some members of the High Court held that special and general duties may co–exist. But in Safeway Stores v Zaluna (supra) at pp620–21, the majority of the court referred to the following passage of Deane J in Hackshaw v Shaw (1984) 155 CLR 614:–

"...... All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk."

The majority of the court concluded:

"In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent."

1. The evidence as presented before me upon the affidavits of the plaintiff does not establish the nature of the relationship between the plaintiff and the fourth defendants, except that it can be inferred that he lawfully entered the fourth defendants' sawmill premises for the purpose of discharging logs from his truck. There is no evidence to indicate that the fourth defendants had the power to or in fact did exercise control over the plaintiff in the manner in which he was to discharge the logs. It was not the occupier's truck, nor is there any evidence to establish that the occupier was under any obligation to supply equipment to the plaintiff to enable him to unload the logs from the truck. The nearest the evidence reaches on this aspect of the case is that loader clamps and binder chains were common equipment at other mills at which the plaintiff discharged logs from the truck. (See paragraph 5 of his second affidavit). I am entitled to draw inferences from the facts before me, but not to speculate and, in my view, the evidence does not enable me to find that the fourth defendants owed the plaintiff any duty, let alone that they were in breach of it, whether it be on the basis of an occupier's special duty or under the general duty based on proximity and foreseeability. Whilst it can be inferred that the fourth defendants are under an obligation, as sawmillers, to ensure that persons on their premises are protected from their equipment and machinery by adequate safety measures, the material before me does not extend that duty to trucks belonging to others which are brought upon their premises for unloading logs and in which the sawmiller may have no special skills. In reaching this conclusion I am mindful of what Cox J said in Soul v Soul, 23/82, at p6:–

"The task of determining whether there is a prima facie case in an application such as this is at one remove from the last mentioned cases which, apart from being concerned with criminal prosecutions, involved a consideration of evidence presented in final form on the trial of an issue. The evidence here is skeletal and it may be that at a subsequent trial additional evidence may alter its complexion to such an extent that the conclusion no longer remains open. But, as matters now stand, it is my opinion that a tribunal could conclude that the respondent's driving in those scantily described circumstances, was negligent."

I do not consider that the plaintiff has reached even this stage on the present application.

1. Mr Read also submitted that the fourth defendants were under the statutory obligations referred to above, pursuant to the Industrial Safety Health and Welfare Act and Regulations. But Mr Webster submitted that the statutory duty is confined to employees or persons over whom an occupier has control and which relates to the occupier's premises, machinery, plant, equipment and fittings.

1. I am satisfied that the evidence before me does not introduce the statutory duty claimed on behalf of the plaintiff.

1. As a result the plaintiff has not established a prima facie case against the fourth defendants. The application is therefore dismissed.