Richards v Richardson
[1994] QCA 78
•6/04/1994
| IN THE COURT OF APPEAL | [1994] QCA 078 |
| SUPREME COURT OF QUEENSLAND | Appeal No. 47 OF 1993 |
| Brisbane | |
| Before Mr Justice Davies Mr Justice Pincus Mr Justice Lee |
[Richards v. Union Steel and Richardson]
BETWEEN:
KRISTINE ROSEANN RICHARDS
(Plaintiff) Appellant
AND:
KEVIN HARRY RICHARDSON
(First Defendant) First Respondent
AND:
BUNGE PROPERTIES PTY LTD
(Second Defendant) Second Respondent
AND:
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
(Defendant by Election)
Third Respondent
AND:
SUNCORP INSURANCE AND FINANCE
(Third Party)
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 06/04/1994
The plaintiff is the widow of Gary Ronald Richards, who was killed by crushing under a forklift which he had been operating at his place of work on 4 September 1987. She brought an action for damages for negligence on her own behalf and on behalf of her son against the deceased's employer, Union Steel, and Kevin Harry Richardson, an owner- driver of a prime mover and semi-trailer involved in the accident which caused the death of the deceased.
Before the hearing of the action quantum of damages was settled between the parties at $214,000 and liability between the defendants, or more accurately between the Workers Compensation Board and Suncorp Insurance and Finance, the licensed insurer of Richardson's vehicle, was also settled.
The question left for determination in the action was whether either defendant was negligent and, if so, whether the deceased was also guilty of contributory negligence. The learned trial judge determined the first of these questions against the plaintiff and consequently did not need to decide the second. The plaintiff appeals against the judgment for the defendants which followed from that determination.
The deceased was a forklift operator of five years' experience. He had been employed by Union Steel for about eighteen months, including about six to nine months as a foreman. He was competent as a foreman and forklift operator.
The accident occurred during the unloading, from the trailer of Richardson's vehicle, by means of the forklift operated by the deceased, of a quantity of aluminium pipes, about 30 feet long, encased in wooden boxing consisting of long planks held together in a square by transverse members at intervals along its length. Some steel plate had to be loaded onto the trailer. It was required by Richardson, and agreed to by the deceased, that, in order to load it, the aluminium pipes should first be unloaded, the plate loaded and then the pipes re-loaded on top of the steel plate.
This was to prevent damage to the aluminium pipes.
The area where the unloading took place was a concrete apron or roadway between two large warehouses. Although the width of this apron or roadway, that is the distance between the warehouses, was not stated, the learned trial judge thought that it appeared from photographic evidence to be wide enough to accommodate four or five semi-trailers in parallel. There is no reason to doubt the correctness of that estimate as a measure of its width. However, the evidence established that steel stacked against the exterior side walls of each of the warehouses extended out onto this area.
Immediately prior to and at the commencement of the unloading operation, Richardson's vehicle was stationary parallel to the two warehouses. In its line of travel it was as close as it reasonably could be to the warehouse on its right-hand side. Between it and that warehouse, however, was a quantity of steel stacked on timber planks.
That steel and planks extended out on to the concrete apron for some considerable distance, the planks, which ran at right angles to line of travel of Richardson's vehicle, protruding beyond the steel. Richardson's vehicle was parked parallel to and within a metre or so of that material. To the left of Richardson's vehicle was another semi-trailer parked parallel to it and about 15 to 20 feet away. Richardson agreed that the loading area was very cramped and a bit messy.
The intended operation of unloading was as follows. The deceased would move his forklift forward at right angles to the line of travel of Richardson's vehicle, place the tines of the forklift under the aluminium pipes so that they were evenly balanced on each side and lift them clear of the tray of the semi-trailer. He would then reverse backwards until the pipes were no longer over the tray of the trailer. This last movement was necessary because the trailer had a very high tailgate and it was plainly not feasible, or at least practicable, to lift the aluminium pipes above the top of the tailgate. After the aluminium pipes had thus cleared the trailer, Richardson would then drive forward until his vehicle was out of the forward path of the forklift. The deceased would then drive his forklift forward so as to place the aluminium pipes on top of the stack of steel to which I have already referred. The forklift would then reverse out of the reversing path of Richardson's vehicle which would then reverse back into its original position to enable the steel plate to be loaded. After the plate had been loaded, the operation which I have already described would be reversed in order to load the aluminium pipes back onto the trailer.
The explanation for these elaborate manoeuvres was that the site was too congested for there to be any other practicable alternative. The site was often so congested and the method of unloading which required the vehicle being unloaded to move during the unloading procedure was one which was known to and approved by the deceased's superior, Mr Neish.
Plainly, at least in hindsight, an operation which did not involve Richardson's vehicle driving forward during the course of the unloading operation would have been much safer. However, it does appear that there was not sufficient space on the lefthand side of Richardson's vehicle for the deceased's forklift to place the aluminium pipes on that side whilst the steel plate was being loaded on to the trailer. There was also plainly insufficient room, unless Richardson's vehicle moved forward, for the deceased to manoeuvre his forklift so as to place the aluminium pipes on the righthand side of Richardson's vehicle. When one bears in mind the high tailgate of the trailer, the nature of the operation was itself the cause of some risk of damage or injury. Usually, Richardson agreed, if there had been sufficient room, his truck would have remained stationary whilst unloading and loading took place.
The risk was increased by the restricted space in which the deceased had to manoeuvre; the other semi-trailer was only a very short distance behind him. This increased the possibility that the deceased might not reverse sufficiently far to ensure that the pipes were safely clear of the trailer.
Another source of risk was the fact that, probably because of the congested nature of the site, Richardson's vehicle was parked parallel to and very close to the stack of steel on its righthand side. This meant that, when Richardson drove forward, he had to pay careful attention to the righthand side wheels of the trailer, so as to ensure that his tyres did not come into contact with that steel or the planks on which it rested. This would, and in fact did, divert his attention from the deceased once he had observed the latter's signal which he interpreted as one to proceed forward.
A third source of risk of damage or injury, when one has regard to the need for the deceased to communicate satisfactorily with Richardson, not only to tell him when to move forwards but also continuously thereafter, was the high ambient noise level. There were a number of sources of this. Steel was being moved, cranes were moving and near Richardson was the cutting bay where saws were cutting steel. In addition, there was the noise of the forklift and of Richardson's vehicle in very low gear.
It is clear that, as the learned trial judge found, as Richardson's vehicle moved forward, the tailgate hit the righthand end of the aluminium pipes. That was observed by an eye witness, and there were paint marks from the tailgate later found on the end boxing of the pipes. Although it is not completely clear how that caused the forklift to overturn, it seems likely that one of the transverse wooden members on the outside of the boxing around the pipes jammed against the tines of the forklift which were then, of course, elevated above the level of the tray of the trailer, forcing those tines sideways; and that as Richardson's vehicle continued to move forward the sideways pressure increased causing the forklift to overturn. This may have been either because Richardson drove forward before the aluminium pipes had cleared the nearside of the trailer, that is whilst they were still directly above the tray of the trailer; or because, after they had cleared the nearside of the trailer, the deceased swung the rear of his forklift to its right thereby causing the righthand end of the pipes to swing back over the tray of the trailer.
The learned trial judge rejected the first possibility, accepting the evidence of Richardson that he correctly interpreted the deceased's signal to proceed forward and that he also, by means of his lefthand side rear vision mirror, satisfied himself that the pipes were clear of the lefthand side of his trailer. I do not think that any basis was shown for disturbing those findings. Richardson said that he could see in his lefthand rear vision mirror, before this signal was given, that the load was clear of the tray of the trailer and that there was no part of the load projecting over the trailer. Moreover, he was familiar with the deceased's hand signals and his evidence that, in effect, he correctly interpreted the signal which was given to him as a signal to proceed forward was supported by the evidence of Mr Renz, another driver who was familiar with the deceased's hand signals, saw this one and interpreted it in the same way. It is therefore likely, as her Honour found, that the accident occurred because, after the pipes had cleared the lefthand side of the trailer the deceased, by turning the rear of the forklift to its right as it reversed, caused the righthand end of the pipes to swing back over the tray of the trailer.
It is not clear what caused the deceased to move the rear of his forklift to its right as he reversed. It is possible that, his attention being focused on the restriction on his backward movement, he accidentally turned the steering wheel. If the pipes were still quite close to the lefthand side of the trailer when the movement occurred only a slight deviation to the right would have brought their righthand end back over the trailer. Another possibility is that the deceased may have thought that that course would best avoid the other semi-trailer parked behind him.
A third possibility is that, as Richardson had to move his vehicle forward to the deceased's left to clear his path, the deceased moved slightly to his right to ensure that when he moved his forklift forwards, the lefthand end of the pipes would be well clear of the rear of Richardson's vehicle. All are explicable by the limited space in which the deceased had to manoeuvre. Mr Renz thought that the area in which the deceased had to manoeuvre was a confined one for the length of pipe being carried and Richardson described it as very cramped.
After the pipes cleared the nearside of the trailer and Richardson had received the signal to proceed forward, he paid no further attention to his lefthand side rear vision mirror. This was, he said, because, in addition to his need to observe his direction of travel, his attention was directed to his right in order to ensure that his tyres did not come into contact with the stacked steel or the wooden planks on that side. He agreed that under normal circumstances he would have considered it necessary to maintain a view of the forklift and its load after he had commenced to proceed forwards. His concern for his trailer tyres on his righthand side was his reason for not doing so on this occasion.
Richardson proceeded forward for, on his own estimate, 10 to 12 feet very slowly in a very low gear before he stopped. He stopped only because there was someone in front of his vehicle waving frantically at him. Because of that slow speed and the very effective brakes on his vehicle, had he seen an emergency situation or received a signal to do so, Richardson could have brought his vehicle to a halt very quickly, almost instantaneously.
It is plain from what I have said that if Richardson had not been required, by the presence of the steel stacked on the wooden planks on his right and, in particular, because of the presence of those wooden planks in close proximity to his driver's side wheels, to give close attention to that side of his vehicle to ensure that his trailer wheels did not come into contact with the steel or, more likely, the planks, he would have been able to and would have continued to watch the aluminium pipes and the deceased's forklift.
Had he done so, he would have seen the far end of those pipes swing back over the tray of the trailer and would probably have been able to stop before the tailgate of the trailer pushed the end of those pipes far enough to cause the forklift to overturn.
Although it was never specifically said, it is likely that the reason why Richardson parked his vehicle as close as he did to the stacked steel was, having regard to the presence on his left of the other semi-trailer, to allow maximum room on a cramped site for unloading of his vehicle.
Consequently, the provision of inadequate space for reasonably risk free unloading caused the need to perform a manoeuvre such as was contemplated and the need for Richardson to park so close to the stacked steel and the planks on which it rested that he had to devote so much attention to that side of his vehicle once he commenced to proceed forward, that he did not continue to look in his lefthand side rear vision mirror.
In my view, therefore, a cause of this accident was the failure of Union Steel to provide sufficient clear area for the unloading and re-loading of the aluminium pipes to be done safely. Renovations being carried out in a yard area which prevented it from being used for loading and unloading, as it ordinarily would have been, may have exacerbated the congestion in the area where the accident took place.
It is true that the deceased as foreman had authority to direct vehicles where to park for loading and unloading. Nevertheless he was a working foreman; he also operated a forklift. And it appears that the general responsibility for this area and the safety of workmen in it rested in Mr Neish, who was aware that it became quite cramped at times.
Although the particulars of negligence against Union Steel are pleaded in a very general way, they are plainly wide enough to include the failure to provide sufficient clear space to enable the unloading operation to be performed safely and no further and better particulars were sought.
More importantly, it appears from her Honour's judgment that permitting the workplace to be cramped and cluttered, thereby not allowing for safe manoeuvring by the forklift driver was one of the bases of negligence against Union Steel specifically argued by the plaintiff at trial and her Honour's failure to find this to be negligence of Union Steel causing the accident was a ground of appeal.
It is also correct in my view that if a third person had been engaged in the manoeuvre, in a position to watch the pipes and the movement of the forklift and to convey to Richardson any need to bring his vehicle to an immediate halt, the accident would never have occurred. Although in many cases effective communication between a forklift operator and a truck driver would be adequate without the necessary assistance of such third person, the circumstances of this case, including the noise level and the cramped conditions requiring, amongst other things, Richardson's attention to be diverted to his right, make the absence of such person a negligent omission for which Union Steel is responsible. This was also an omission specifically argued below, contained in the grounds of appeal and argued in this Court. It follows from what I have said that I consider that, given the problem of cramping in the area, it was the responsibility of Mr Neish to ensure the implementation of safe procedures including this one.
There is no doubt that Richardson was inadvertent in not looking again in his lefthand side rear vision mirror after receiving the signal from the deceased to proceed. However, given the position in which he was placed, with the potential danger to the tyres on his driver's side, his obligation to keep observing his direction of travel to ensure that his path was clear and the fact that when he last looked the pipes had cleared the lefthand side of his trailer, I do not think he was negligent in failing to look again at the pipes or the forklift before the accident occurred.
The only other negligence alleged and argued against Richardson was that he ought to have removed the tailgate on his trailer before the unloading operation commenced. There is no doubt, in hindsight, that if he had done so that accident would not have occurred. On the other hand, this operation would not have been a risky one if more space had been provided by Union Steel, both to the deceased to manoeuvre his forklift and to Richardson to drive forward without having to pay close attention to his right. In other words it would not have been necessary to remove the tailgate in an ordinary operation of this kind. It is, in my view, too much to ask of a reasonable driver in Richardson's position, to expect that he should have realised that, because of the limited space provided to the deceased and to him extraordinary care was required, including removal of the tailgate.
Nor do I think that the deceased was guilty of contributory negligence. No doubt with the benefit of hindsight it can be said that he should not have turned the rear of his forklift to its right thereby causing the righthand end of pipes to swing back over the tray of the trailer. However, given the limited space in which he was operating, the difficult manoeuvre he was obliged to perform in that limited space, and the pressure which no doubt existed to perform the operation promptly, I think that this was at worst a momentary inadvertence.
In my view, therefore, the sole cause of the collision was the negligence of Union Steel. I would therefore set aside the judgment below and substitute judgment for the plaintiff against the Workers' Compensation Board. Although it appears that workers' compensation has been paid the precise amount of this does not appear from the evidence before this Court. The parties should therefore attempt to reach agreement upon the form of judgment in accordance with these reasons. Otherwise, each should make written submissions to this Court within 14 days.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No.47 of 1993
Brisbane
| Before | Davies J.A. Pincus J.A. Lee J. |
[Richards v. Richardson]
BETWEEN:
KRISTINE ROSEANN RICHARDS
(Plaintiff) Appellant
-and-
KEVIN HARRY RICHARDSON First
(First Defendant) Respondent
-and-
BUNGE PROPERTIES PTY LTD Second
(Second Defendant) Respondent
-and-
THE WORKERS' COMPENSATION BOARD Third
OF QUEENSLAND Respondent (Defendant by
Election)
-and-
SUNCORP INSURANCE AND FINANCE
(Third Party)
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 06/04/94
I have read the reasons of Davies JA and those of Lee J; the latter contain a comprehensive explanation of the facts of the case, making it unnecessary for me to set them out at length.
The deceased, using a forklift, took a load of pipes from the tray of the semi-trailer which the respondent Richardson was driving. Having lifted the load, the deceased drove the forklift backwards and then, according to the findings, signalled Richardson to move the semi-trailer forward. It was necessary to move the semi-trailer to enable the deceased to carry out his intention of putting the load of pipes down on the other side of the semi-trailer - i.e. on the side opposite to that from which he had taken the pipes.
Ordinarily Richardson would have, using his passenger side rear-view mirrors, kept an eye on the deceased and the forklift as the semi-trailer was moved forward. On this occasion, however, Richardson thought it necessary, once he saw the load of pipes was clear of the semi-trailer, to watch the rear driver's side of his vehicle; that was so because some timber was stacked close to the wheels of the trailer on that side and Richardson was anxious that the wheels not come in contact with the timber.
Because his attention was directed elsewhere, Richardson did not see what happened; this was, it appears, that the load of pipes came in contact with the tailgate on the moving semi-trailer and by that means caused the forklift to be overturned, bringing about the death of the deceased.
The views which the learned primary judge expressed in her reasons were in part as follows. Her Honour held that Richardson knew the deceased, having attended at the premises in question many times previously. The judge said that:
"The deceased on previous visits would direct [Richardson] where to drive his truck and direct him as to what to do and who was to load his truck. [Richardson] would talk to the deceased if he had any problems concerning the loading of any equipment or steel."
The judge also, as it appears to me, accepted evidence that safety requires that a load carried high on a forklift be set down as soon as possible, because forklifts with an elevated load are unstable. Similarly, her Honour appears to have accepted that it would be unsafe to turn a forklift to the right or left when carrying a load in the vicinity of a moving platform, until well clear of the platform. The relevance of the latter expression of view is that it seems likely that for some reason, which the evidence does not explain, the deceased turned the forklift he was driving somewhat as he reversed away from the trailer and presumably that caused the load carried on the forklift to come into contact with the tailgate.
On the question whether the area was so confined as to create a "hazardous work environment", her Honour found that there was an average amount of industrial noise and that there were three trucks in the general area on the apron where the loading was taking place. She pointed out that the driver of the third truck had been able to move his truck quickly when directed to do so after the accident.
Her Honour also made the following remarks on this subject:
"It was accepted that the deceased as foreman could and did readily direct the truck drivers who came on to Union Steel's premises to move their vehicles to appropriate loading points. There was no evidence to show that there was want of room on the site generally...The evidence was that there was insufficient room for the deceased to turn his forklift with its 9 metre wide load between [Richardson's] semi-trailer and the third truck whilst [Richardson's] semi-trailer remained stationary. It is not, however, clear that it was necessary for the deceased to turn the forklift or if that was his intention."
After discussing other matters her Honour went on, with respect to the question of congestion in the area:
"As mentioned above, I have concluded that more likely than not on the available evidence the deceased planned to place the pipes on the right side of [Richardson's] semi-trailer and that there was no need for him to turn the forklift at all.
Even if this were not so and the deceased thought it necessary to turn the forklift to take the load elsewhere or further to the right or to the left the deceased ought to have waited until [Richardson's] truck was quite clear or to have directed the driver of the third truck positioned behind him to move out of the way. The deceased was the foreman. He decided how to unload [Richardson's] semi-trailer, with what equipment, and where it was to take place. He directed [Richardson] where to go. He had the necessary skills to drive a forklift and was seen as competent."
The principal question which requires to be decided on the appeal is whether the primary judge should have found that the employer was negligent in failing to provide enough clear space for the operation in question; my view on that point, as will appear, is that her Honour has not been shown to have erred. I am prepared to assume that a basic cause of the mishap was the cramped nature of the area in which the forklift was operating. It is true that there was evidence, which the primary judge appears to have accepted, that if the forklift had gone straight back there was enough clearance to enable the semi-trailer to be driven forward by Richardson without endangering the deceased; it was the deceased's turning the forklift somewhat which apparently brought the pipes into contact with the tailgate of the semi-trailer and led to the forklift overturning. But it seems evident enough that the space available for the manoeuvre was quite limited and I would be prepared to infer that, had it not been so limited, the accident would probably not have occurred.
The more difficult question is whether the attempt to do the job in cramped conditions was the fault of the employer rather than that of the deceased alone. On that point the judge's view was plainly adverse to the appellant.
Evidence was given bearing upon the deceased's responsibilities in the ordinary course of the employer's business. F M Lenz, another employee at the place where the accident occurred, gave evidence to the effect that as foreman the deceased had power to direct Richardson to move his truck to whatever place the deceased required in order to carry out work. P G Renz, a truck driver called for the appellant, agreed that it was his practice, when he went to the relevant premises, to seek the deceased out to obtain information to enable him to load or unload his goods; he also agreed that the deceased would tell him, amongst other things, where his truck was to be located. Richardson gave evidence along the same lines. Alan Neish, described as the "warehouse manager" at the premises, who had appointed the deceased as foreman and regarded him as competent, was asked who had the final say as to where any truck was to go in order to be loaded, unloaded or placed in the course of the employer's activities; his answer as recorded was, "The foreman do". I think the word "foreman" should be read "foremen", because at another place Neish said there "could have been" two or three foremen in 1987, when the accident happened.
Neish also gave evidence to the effect that there was plenty of room, generally speaking, for loading and unloading at the premises, but that on the occasion in question "there was less room in one area" - being, as I infer, the area in which the accident happened. As the deceased's superior, it was plainly open to Neish to countermand arrangements the deceased made for loading and unloading - for example, to direct him to perform the task in one place rather than another; Richardson, on the other hand, had no right to give orders to the deceased. Neish agreed that the area in which the accident happened could become quite cramped and also agreed that it was part of his job to walk around the premises from time to time to make sure that things were being done properly and safely.
Her Honour was unprepared to find that it was negligent on the part of the employer to permit the operation to take place in a confined space; she reached that view primarily because it was the deceased's prerogative to decide where and how the relevant operation was done. Further, her Honour remarked: "No unsafe practices involving the deceased were identified" (my emphasis). That is, in my opinion, so. It is true that there was evidence that the area in question was sometimes cramped, but it was not established that it was commonly or usually in that condition; nor was any attempt made to show that the operations of loading or unloading in the relevant area were generally unsafe or, indeed, had been conducted unsafely on any other occasion. No question along those lines was put to Neish or to any other witness.
It appears to me that an unnecessary risk was created by the attempt to unload the aluminium pipes by a method which involved having the truck being driven close to pipes held up on the tines of the forklift, when both the forklift and the semi-trailer had limited room in which to move. It would surely not have been difficult to arrange for the operation to be performed in more ample space. The appellant has to show, in substance, that the primary judge should have held Neish responsible for that. Neish left decisions of the kind, in the ordinary way, to the deceased.
That the deceased's method of work, on this particular occasion, appears to have been erroneous does not lead to the conclusion that Neish was negligent in entrusting the work to him; nor is the conclusion justified by the evidence that on some other occasions the area was cramped.
Working in a confined space may or may not be dangerous,
depending on the nature of the work being done.
It is desirable to recall the decision of the High Court in Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167, in which an appellate decision reversing the trial judge in a master-and-servant case was in turn reversed. In the reasons of McHugh J. with whom the other members of the court agreed, a now familiar passage from S S Hontestroom v. S.S. Sagaporack [1927] A.C. 37 at 47 is cited; I give only the last sentence:
"If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone."
Here, in my opinion, the judge's estimate of the weight to be attached to the various witnesses, expert and lay, who gave evidence before her, must have formed a substantial part of the grounds for her conclusions. In my view, her Honour's finding that no negligence was shown was essentially one of fact; it is likely to have depended on impressions she formed of the witnesses and in particular on the credibility of Neish. In those circumstances the onus on the appellant is a substantial one: see Devries v. Australian National Railways Commission (1993) 67 A.L.J.R. 528 at 531. It is true that in the same part of the Australian Law Journal one finds Nagle v. Rottnest Island Authority (1993) 67 A.L.J.R. 426, in which what appears to have been essentially a factual conclusion in a negligence case was upset; but that decision was surely not intended to throw any doubt upon the established practice with respect to appeals against factual conclusions of the primary judge.
I have considered the decision in Nicol v. Allyacht Spars Pty Ltd (1987) 163 C.L.R. 611 in which an employee succeeded against the employer on the basis that the system of work was unsafe, although the plaintiff had taken part in the devising of the system. Here, in my opinion, there was no evidence on which it could be found that the methods of work at the site were generally unsafe. The question then is whether the judge should have concluded that on the particular occasion an unsafe method was used, due wholly or in part to the fault of Neish. The judge was entitled to reach the conclusion on which she acted, which was that the choice of the method of work was entirely a matter for the deceased; nor was her Honour, in my view, obliged or indeed entitled to find that Neish was at fault in failing continually to supervise the deceased, or at fault in failing to supervise his mode of work on the occasion in question.
As to the other heads of negligence argued, I express my concurrence with the reasons of Davies J.A.
In my opinion the appeal should be dismissed with
costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 47 of 1993
Brisbane
[Richards v. Richardson & Bunge Property PL & Ors]
BETWEEN:
KRISTINE ROSEANN RICHARDS Appellant (Plaintiff)
AND:
KEVIN HARRY RICHARDSON
First Respondent
(First Defendant)
AND:
BUNGE PROPERTIES PTY LTD
Second Respondent
(Second Defendant)
AND:
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
Third Respondent
(Defendant by Election)
AND
SUNCORP INSURANCE AND FINANCE
Third PartyMr Justice Davies Mr Justice Pincus Mr Justice Lee
Judgment delivered 06/04/1994.
All members of the Court delivering separate reasons.
Davies and Pincus JJ.A. agreeing in the orders proposed in
respect of the first respondent, Lee J. dissenting. Davies
J.A. and Lee J. agreeing in the orders proposed in respect
of the third respondent, Pincus J.A. dissenting.
1. Appeal allowed insofar as the judgment below adjudged that the appellant recover nothing against the third respondent.
2. Judgment in favour of third respondent set aside and in lieu judgment entered for appellant against third respondent.
3. Appeal against judgment in favour of first respondent dismissed with costs.
4. Third respondent to pay appellant's costs of the action and of the appeal including those costs the appellant has to pay to the first respondent.
5. Parties to agree on form and amount of judgment, in default of which they are to have leave to file written submissions as to form and amount of judgment within fourteen days.
CATCHWORDS: | MASTER AND SERVANT - safe system of work - duty of employer to provide - avoidance of obvious and recurrent dangers - employee engaged in inherently dangerous procedure - whether in light of employee's skill and experience employer reasonably left responsibility for safe system and workplace to employee - whether employer retained overall responsibility - whether adequate instruction - whether employer negligent in failing to take into account possible inadvertent or negligent conduct of employee - whether employee sole author of his injuries. |
| NEGLIGENCE - contributory negligence - whether actions of employee amounted to mere inattention or inadvertence - whether employee's actions were the sole cause of his injuries. | |
| NEGLIGENCE - motor vehicles - duty of driver of truck on industrial site to keep proper look out - whether continuing duty - whether in view of dangerous condition of site driver reasonably focussed attention on possible obstruction - duty of driver to maintain effective communication - whether driver acted reasonably in relying on signal of employee. | |
| Counsel: | R V Hanson QC, with him W M Boulton for the |
Appellant.
J J Clifford QC, with him R J Douglas for the
Respondents.
| Solicitors: | C A Sciacca and Associates for the Appellant. McRea Jones for the Respondents. |
Hearing date: 06/08/1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 47 of 1993
Brisbane
Before the Court of Appeal
Davies J.A. Pincus J.A. Lee J.
[Richards v. Richardson & Bunge Property PL & Ors]
BETWEEN:
KRISTINE ROSEANN RICHARDS
Appellant
(Plaintiff)
AND:
KEVIN HARRY RICHARDSON
First Respondent
(First Defendant)
AND:
BUNGE PROPERTIES PTY LTD
Second Respondent
(Second Defendant)
AND:
THE WORKERS' COMPENSATION BOARD OF QUEENSLAND
Third Respondent
(Defendant by Election)
AND
SUNCORP INSURANCE AND FINANCE
Third Party
JUDGMENT - W.C. LEE J.
Judgment delivered 06/04/1994
The appellant is the widow of Garry Ronald Richards ("the deceased") who died on 4 September 1987 when he was crushed by an overturned fork lift which he was operating in the course of his employment with the second respondent ("Union Steel") at its Eagle Farm premises. The particular operation involved unloading on the front tines of that forklift, a bundle of aluminium pipes 30 feet in length encased in a timber frame, from the left side of a 40 feet long tray of a semi-trailer. The semi-trailer was owned and driven by the first respondent ("Richardson") who was at the time seated in the right hand side of the driver's cabin with his back to the deceased. The forklift was initially positioned close to a 90 degree angle to the side of the semi-trailer and to Richardson's left and rear. At some stage during the unloading operation when the load had been lifted to a height of about eight feet above ground level (about three feet above tray level), and following a hand signal by the deceased which Richardson said he observed in a small exterior left hand convex spotter's mirror affixed to the bottom of the glass of the left external rear view mirror, and which he interpreted as a "move ahead" signal, he caused his semi-trailer to move forward slowly.
Thereupon the right hand end of the bundle of pipes which had been positioned evenly on the tines, was struck by a fixed high tailgate extending some six feet above the rear of the tray of the semi-trailer causing the then unstable forklift to be dragged to the left and over on its side killing the deceased. The deceased and Richardson were the only two persons engaged in the operation which was described by the learned trial Judge as inherently dangerous. It was conducted in an area which was described as congested, confined and messy.
The appellant brought the action on her own behalf and on behalf of an infant son pursuant to s. 15 of the Common Law Practice Act 1867-1981. The quantum of damages was agreed at $214,000, the apportionment being $57,000 as to the son and $157,000 as to the plaintiff. The case was fought on liability only. The learned trial Judge held that the deceased was the author of the events giving rise to his death and that neither respondent was in any way responsible.
With respect to Richardson, the learned trial Judge
said:
"Mr Richardson was directed by the deceased to position his semi-trailer for unloading. The obstruction on the right of his vehicle was known to the deceased. If that obstruction had not been there the first defendant might have looked again finally before moving off. He did look again after the deceased's wave and satisfied himself that the load was clear and caused his vehicle to move forward. It should also be remembered that the first defendant needed to keep the way ahead under observation and that he was familiar with the deceased's method of working. There was no evidence to suggest that there was anything unusual about this day. In all the circumstances I do not find that the first defendant negligently failed to keep a proper lookout."
The learned trial Judge also rejected the submissions that Richardson had negligently misinterpreted the deceased's hand signal and that he was negligent for not having removed the rear metal tailgate from his semi-trailer in the circumstances then prevailing. It was said that it was for the deceased to direct that this be done if he thought it was necessary.
With respect to Union Steel, the view was held that the deceased directed Richardson where to go. He had the necessary skills to drive a forklift, was seen as competent and had never been seen to engage in unusual or unsafe practices. He had the experience and authority to control the work environment with which he was concerned. Reliance was placed on the observation of Crockett J. in Amalgamated Wireless (Australasia) Ltd v. Keogh (1985) 3 M.V.R. 245 at 250 that:
"The employer was entitled to treat the matter as
one for the man doing the job."
The grounds of appeal against Richardson (the first defendant) alleged that the learned trial Judge ought to have concluded that he was negligent in the following respects:
"a) The first defendant did not keep a proper lookout whilst driving his truck forward;
b) The first defendant probably misinterpreted a hand signal given by the deceased and drove forward when it was dangerous to do so;
c) The first defendant should have removed the metal gate at the back of his truck which was an obvious obstacle in the unloading procedure which had been adopted by the deceased and the first defendant."
Ground (c) was not a particular of negligence in para. 5 of the statement of claim but was part of the case against Richardson at the trial. This emerges from the learned trial Judge's reasons.
The grounds of appeal against Union Steel ("the second defendant") are as follows:
"1. The learned trial Judge ought to have found that the second defendant's system of work was unsafe and the second defendant was negligent because:
a) there had been a complete failure to devise, maintain and enforce a safe system of work, the deceased having been left to get on with his job without any safety instructions and supervision. As a result there was no proper signalling system either by way of proper hand signals or use of another employee to assist in the movement of vehicles during unloading;
b) the second defendant failed to ensure that trucks were not allowed to move while they were being unloaded, particularly in close proximity to a fork lift;
c) the second defendant failed to ensure that if the first defendant's truck was to move in close proximity to the fork lift whilst the fork lift was carrying a long load, the metal gate at the back of the truck was dropped or taken out;
2. The learned trial Judge ought to have found that the second defendant had failed to provide the deceased with a safe place of work because the loading area in which the accident occurred was cluttered or cramped and did not allow sufficient room for the fork lift driven by the deceased to manoeuvre safely;
3. In finding that an accidental touch to the wheel of the fork lift or a miscalculation by the deceased as to how fast the semi-trailer would move on were not unlikely explanations for the overturning of the fork lift, the learned trial Judge erred in fact and in law in failing to go on to find that it was the second defendant's unsafe system of work and unsafe place of work which left little or no scope for error or misunderstanding or inadvertence on the part of the driver of the fork lift or others;
4. The learned trial Judge erred in fact and in law in placing too much weight upon the fact that the deceased was a foreman and in concluding, in effect, the deceased in his position as foreman was responsible for his own safety;
5. The learned trial Judge erred in fact and in law in failing properly to take into account the relevance of the possibility of negligence or inadvertence on the part of the deceased."
Grounds 1 and 2, whilst expressed differently to the allegations in para. 5 of the statement of claim, appear generally to accord with those allegations and to the case against Union Steel identified in the reasons of the learned trial Judge.
It is settled that only rarely will a trial Judge's findings of fact be overturned on appeal if those findings are based wholly or partly upon the credibility and impression formed by a trial Judge of witnesses. Those findings must be shown to have been clearly wrong: e.g. if the trial Judge "has failed to use his or her advantage": SS Hontestroom v. SS Sagaporack [1927] A.C. 37 at 47; Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167 at 178, or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence", or if they are "glaringly improbable": Brunskill and Anor. v Sovereign Marine and General Insurance Co. Limited & Ors. (1985) 59 A.L.J.R. 842 at 844, Devries v. Australian National Railways Commission (1992-3) 177 C.L.R. 472 at 479. The onus on an appellant in such circumstances is a formidable one.
However, as was pointed out in Brunskill (supra) at 844, there is a clear distinction between a finding which is based upon a view taken of conflicting testimony, and one which is based on inferences drawn from uncontroverted facts. Where the facts are undisputed or where the facts having been disputed, are found by the trial Judge, the question then is: What proper inferences are to be drawn from those established facts? In such circumstances a Court of Appeal is generally in as good a position as a trial Judge to draw those inferences, whilst giving due respect and weight to the conclusions of the trial Judge: Warren v. Coombes and Anor. (1979) 142 C.L.R. 531.
The learned trial Judge was not faced with forming a view on conflicting testimony between witnesses as such, but rather was required to form impressions of two witnesses, Richardson and one Paul Gordon Renz ("Renz"), an independent truck operator waiting some 30 or 40 metres away from the site of the accident on a slight angle for his turn to have his large Mercedes-Benz semi-trailer loaded. Their crucial evidence bore upon the part Richardson played in the accident itself. Otherwise, the conclusions of the learned trial Judge were in the main based upon inferences drawn from facts which were not substantially in dispute. The learned trial Judge appears to have accepted much of the evidence of Frank Michael Lenz, a forklift operator who gave evidence for the appellant, and who had regularly worked under the deceased on the same shifts for some eight to nine months before the accident. He was subsequently promoted to foreman. There are no adverse findings with respect to any witness.
Much attention was directed on behalf of the respondents both at the trial and on appeal to the questions of whether there were other places available on the site both undercover and in open areas, where the unloading operation could more safely have occurred and whether the deceased, having effective control of the yard, could and should have directed Richardson's vehicle to be re-located to another area. It was also urged on behalf of the respondents that the case was not one of the failure of Union Steel to provide a safe system of work, the operation being one put into place by the deceased himself as an experienced foreman and forklift operator. The learned trial Judge placed some significance on these aspects in concluding that neither defendant was guilty of negligence.
It is therefore necessary to first consider in some detail the uncontradicted evidence bearing upon the background circumstances, the area where this procedure occurred and the method of operation. No view was taken of the premises during the trial.
Union Steel was engaged in the cutting, sorting, stacking and storing of steel on various parts of its premises, and also the sale and distribution of steel and steel products in South East Queensland. Its premises occupied about 5 acres. Trucks, particularly semi-trailers, loaded and unloaded steel at the site. These trucks and semi-trailers were operated by independent contractors not in the employ of Union Steel and who, along with Union Steel, were concerned with the expeditious unloading, loading and turnaround of their trucks and semi-trailers for obvious commercial reasons. On the day in question there were three large trucks or semi-trailers (including Richardson's and Renz's) in the particular area where the unloading operation from Richardson's semi-trailer occurred.
They were all waiting for their turn to be unloaded and/or loaded; ex. 1A. The order of their arrival does not appear but it seems that Richardson's semi-trailer was afforded priority over the other two. The part of the site where the unloading operation occurred and the prevailing conditions assume considerable importance.
There were two large sheds or warehouses situated one on each side of the site, to which access was gained by large doors. This appears from original photographs ex. 1A, 1C, 1D. The photographs show only one door to the large shed on the left whereas there are visible two doors giving access to the shed on the right (ex. 1A, 1D). The area between the sheds was referred to as the "outside area". It consisted of a large concreted area or apron sometimes referred to as the central driveway. This was where the unfortunate accident occurred. The area is best illustrated by the photograph ex. 1A. It was quite large and could ordinarily accommodate perhaps four or five semi-trailers in parallel, providing there was no steel or other obstructions in the area. This number of vehicles would doubtless cause extreme congestion and leave little room, if any, between them for manoeuvrability.
Alan Neish was the site manager with 14 years experience with Union Steel. He gave evidence for the respondents but gave no evidence as to the circumstances surrounding the accident itself, or as to the actual positions of the vehicles and forklifts on the site at the relevant time. He was an experienced and ticketed forklift operator. He was warehouse manager at the time in charge of the operations and was the immediate supervisor of the deceased. He said his task was to move around to see that the men did their job properly and safely. He engaged forklift operators and other staff. He in fact engaged the deceased who had been a qualified forklift operator since 1982. The deceased's appointment occurred about 18 months before the accident and he was made foreman some 6 to 9 months before the accident. All of the evidence shows that the deceased was a highly competent operator who always adopted safe practices. He was a working foreman in charge of well over 12 men on his shift working in various places on the site, including storeman and others working inside the sheds and elsewhere. Lenz, who had regularly worked under the deceased on the same shifts for some nine months before the accident, said that the deceased was the only foreman on the particular shift. Neish did not know.
In response to a question to Neish in evidence-in-chief "Was loading carried on outside or inside or what?", he said "The majority would be undercover but there was some done outside". In cross-examination he said in response to a question "Most of the unloading occurred in the central driveway?", "No. We unload the majority of the steel inside the sheds because that's where it's stored". (Emphasis added). This occurred in loading/unloading bays inside the sheds, which is quite understandable in case of steel being unloaded from trucks and placed into stock piles in the shed (whilst the vehicles remained stationary).
However, this could not be said of the subject pipes because they were not to be stored at Union Steel. They belonged to someone else. They merely had to be temporarily unloaded from Richardson's semi-trailer whilst flat steel was loaded and placed at the bottom of the trailer whereupon the bundle of lighter aluminium pipes was to be reloaded onto the top. This was to avoid damage to the softer pipes.
The whole load was then to be taken away by Richardson.
Use of the outside area might more readily occur if access to the sheds was in any way impeded or if the loading facilities inside the sheds were already in use on other vehicles or otherwise. The evidence does not specifically disclose whether there were any other trucks inside the two large sheds so as to prevent access to the sheds by one or more of the three large trucks or semi-trailers out on the apron (ex. 1A), or whether there were spaces available, assuming that large articulated vehicles of the length of Richardson's semi-trailer (the trailer alone of which was 40 feet in length) or the large Mercedes-Benz semi-trailer owned by Renz would have had no difficulty in manoeuvring into one of the sheds through the doors (as opposed to fixed wheeled trucks) having regard to material lying on various parts of the site.
Neither Neish nor any other witness was specifically asked about available spaces inside the sheds at the time and there is no finding on this point. Neish said that he had no idea whether the overhead cranes were in use in the sheds at the time i.e. whether for loading or unloading of trucks or for sorting and stacking of steel etc., although there is evidence by Richardson of noise generated by cranes which indicates that at least some of them were in use at that time inside the sheds. The cross-examination of Lenz suggests that trucks other than the three on the concrete apron might have been present elsewhere on the premises, including inside the buildings.
Lenz was at all times a qualified forklift operator.
He said that "back in those days", it was a regular practice of Union Steel (i.e. both on the day in question and over that period) to store stacks of steel, piping etc. on both sides of the concrete apron, thus restricting the overall space of the concrete area, and restricting to some extent access to the large sheds on each side. Indeed ex. 1A shows a large quantity of steel and piping stacked on timber on the right hand side of the concrete apron, parallel to the shed on the right, and encroaching onto the apron, clearly obstructing one of the entrances to the large shed on the right. It is not clear whether this stack of steel extended along in front of the second door on the right further ahead. Richardson, when asked in re-examination about the length of this material, said he did not know. There is no other evidence on the point.
Lenz also said that there was a stack of RHS steel on the left hand side of the concrete apron which he identified in ex. 1D. He said that it was covered by tarps. It was located near what appears to be the only visible entrance to the shed on the left of the concrete apron and may have partly obstructed the entrance to that large shed door on that side. In addition, the photograph ex. 1A shows stacks of other material on the concrete apron past that doorway.
Its extent is obstructed by the truck to the extreme left of the photograph ex. 1A. On the day in question Lenz and the deceased were in the process of performing together the task of relocating that RHS steel from outside to the inside where it was to be stored, when the deceased came outside one of the sheds with Lenz and spoke to Richardson. The removal of the RHS steel was to involve the use of a forklift and probably a crane, and would have impeded entrance to the particular shed at the time Richardson's truck was being unloaded. Indeed, Lenz commenced to do this job on his own after the deceased took up with Richardson, until he (Lenz), was interrupted by the unfortunate accident.
Also Neish agreed that there were "piles or stacks of steel and piping stored out on the concrete in the central driveway area". Indeed, a close examination of the original photograph ex. 1A shows that in the centre background between the overturned forklift and Richardson's semi- trailer on the right and to the right of Renz's semi- trailer, there is further material of some description which would not facilitate access to the shed on the right by the furtherest door of that shed and would impede overall manoeuvrability in that area.
Richardson and Neish as well as Ian Ralph Miller, an employee of Bruce Shack Concreting, gave evidence that there was construction going on consisting of the renovation of buildings, cement work and other types of activity by various workmen. Miller, on being shown photograph ex. 1A, said that his firm was laying a concrete driveway and that he was some 30 metres or so away from the overturned forklift. His firm had been doing that work in the driveway area for a little over a week which must have caused some restriction to the general driveway area.
After it was made clear during the trial that the appellant could not adduce evidence to show that there were not other (unidentified) places on the premises where trucks might generally have been directed to go, Neish was subsequently asked in evidence-in-chief about the outside areas available for unloading or loading. He said "We had a central driveway between two sheds and we had the yard area out the back of the another shed." (sic). When asked if trucks could go to either of those places if directed to do so, he said "They could, but at the time there was some construction going on on the outside yard". Later he said that "There was less room in one area yes".
The "yard area out the back" was not specifically identified but his reference to construction going on in the outside yard is consistent with the reference to the area outside between the two sheds where the accident occurred, having regard to his use elsewhere of the word "outside".
Whatever he intended to convey, he at least said that some areas of the premises normally used for loading and unloading would not have been readily accessible on the day in question.
Of some importance was the evidence of Lenz who said that the outside concrete area depicted in the ex. 1A was the unloading area. He was not challenged on this statement. Renz also accepted that the area where the accident occurred was the unloading/loading area. He had been there previously. Indeed Richardson, who had been to the premises about three times per week for well over two years, by parking his semi-trailer where he did, appears to have accepted that this was the appropriate place to park for unloading and loading on the day in question.
The mere presence of three large vehicles on the concrete apron at the relevant time, waiting to be unloaded/loaded also indicates that this was a normal unloading/loading area. It may also indicate that there were no convenient spaces available inside the sheds to accommodate the large articulated vehicles then on the concrete apron.
Lenz agreed to a question put to him in cross- examination that "there was a considerable amount of activity going on loading trucks during the course of any shift". Neish agreed in cross-examination that with respect to the central driveway area, there could often be many trucks waiting to be loaded and the area would become quite cramped. On this day there were three large semi-trailers on the outside area. The evidence of Lenz who regarded the day in question as a normal working day, and that of Renz who described the area as a "confined area" and who regarded the condition of the premises on the day the same as on previous visits by him, supports the conclusion that the outside area was commonly used for unloading/loading according to the exigencies of the business in conditions generally similar to those which operated on the day of the accident. Also Richardson described the area on the day in question as "very cramped" and a "bit messy", and there is uncontradicted evidence of the presence of steel and material about the driveway on the day and "over that period", as well as some construction work going on.
The evidence of Neish shows that loading or unloading inside the large warehouses on each side of the driveway area usually occurred by the use of fixed overhead cranes. Two forklifts, one large and one small and a mobile crane, were necessary for use in the outside area. The finding of the learned trial Judge that most of the unloading occurred under cover but that some took place outside where the accident occurred, is consistent with the view that the outside area was commonly used for that purpose also. It cannot be said that the deceased, in conducting this operation in the area where it occurred, was acting contrary to normal and regular practice at the time, even if there might have been other places generally available on the premises where unloading could have occurred.
Lenz said that it was "pretty common" to move trucks around as they were loaded. He said that unloading usually occurred "wherever was the easiest place to load or unload the vehicle". Renz said that it was far simpler to unload a vehicle in the way attempted by the deceased, when working in a confined area and that loading occurred "wherever they had room, I guess". Also Richardson agreed that he had been loaded and/or unloaded previously by moving his truck around during the operation. Neish said:
"You were aware of the practice, were you of forklifts unloading vehicles which had to - or trucks which had to move as part of the unloading procedure?-- Yes.
You had seen that happen before?-- Yes.
It is safer and easier for a forklift driver to unload a vehicle that remains stationary throughout and manoeuvre the load around the stationary vehicle than to unload a vehicle which is required to move; correct?-- Not necessarily.
In General Cleaning Contractors Ltd v. Christmas [1953] A.C. 180 at 193-4: [1952] 2 All E.R. 1110 at 1117, Lord Reid said: 'On that matter the appellants say that their men are skilled men who are well aware of the dangers involved and as well able as the appellants to devise and take any necessary precautions. That may be so but, in my opinion, it is not a sufficient answer. ... It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required ..."
In the circumstances, Union Steel should have ensured less congestion in the loading area by appropriate directions to employees, thus removing unnecessary distractions during unloading by this method, or alternatively Union Steel should have exercised more control over the movement of vehicles in the congested yard during this type of proceeding, by supplying another employee to relay messages between the forklift driver and truck driver who is required to move ahead and stop when required, and who might either fail to keep a proper lookout (as Richardson did), or be unable to keep the forklift driver continuously in view to the rear, due to some contingency arising to his front or elsewhere. This was more important in the present case because of the noise level which probably prevented normal communication between the drivers.
Another employee was readily available to stand to the left hand front of Richardson's cabin and co-ordinate the movement and stopping of his vehicle. Had this occurred, this probably would have enabled Richardson to bring his semi-trailer to an immediate halt when the pipes first struck the tailgate. Either of the foregoing precautions, which were reasonably simple to take, would probably have prevented injury to the deceased: Turner v. The State of South Australia (supra) at 840.
In my opinion, grounds 1(a) and 2 are made out. Ground
1(b) is not made out as the method of operation was accepted
as usual and was not pursued at the trial or on the appeal.
Neither is ground 1(c) made out for reasons stated by the
learned trial Judge. In the result, Union Steel was
negligent and responsible for the consequences.
This leaves the question of contributory negligence.
Senior counsel for the respondents submitted that in the event that the respondents or either of them were found to be negligent, the deceased was negligent to a significant extent. The onus of establishing contributory negligence is on each of the respondents.
The approach is set out in McLean v. Tedman (supra) at 315-6 in the joint judgment of Mason, Wilson, Brennan and Dawson JJ. where approval was expressed of the statement by Windeyer J. in Sungravure Pty. Ltd. v. Meani (1963-64) 110 C.L.R. 24 at 37 as follows:
"Whether a person was negligent in that sense must be determined in every case in the light of all the circumstances. When a worker in a factory is alleged to have been wanting in care for his own safety, the jury may, of course, as part of the totality of circumstances, have regard to such things as inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions. They may consider whether any of these things caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."
The question is whether the employee's actions should be characterised as mere inattention or inadvertence or whether it amounts to negligence. Further, this question must be considered on the basis that it was the employer's negligence which has set the scene for the allegedly negligent conduct of the employee: McLean v. Tedman (supra) at 315.
It was urged on behalf of the respondents that the deceased failed to adopt the ordinary precaution of dropping his load immediately he got clear or that he proceeded to turn while Richardson's semi-trailer was moving through at his direction. The proximity of the right hand end of the pipes to the tailgate of the semi-trailer and the fact that at best the pipes were only some 12 to 18 inches clear, rendered it unlikely that the deceased had any opportunity to lower his load onto the ground because due to some momentary inadvertence or accident the right hand rear end of the pipes immediately came into contact with the tailgate. In these circumstances, it must be concluded that Union Steel has failed to discharge the onus of establishing that as against it, the deceased was in any way negligent.
As to Richardson, it is clear from the judgment of Windeyer J. in Sungravure Pty. Ltd. v. Meani (supra) at 37 as approved by the High Court in McLean v. Tedman (supra), that the same approach to the question of contributory negligence applies to activities in factories, a coalmine, a musterers' camp, a shearing shed, upon a highway or anywhere else. This principle was affirmed by the High Court in Bus v. Sydney County Council (supra) at 445 where in the joint judgment of Mason C.J., Deane, Dawson and Toohey JJ., it was stated that the principle of inadvertence applies generally to any situation where a duty of care exists.
For reasons already stated, the conduct of the deceased was probably due to momentary inadvertence or an accidental movement of the forklift at a time when Richardson's attention was wholly directed elsewhere. In the circumstances, Richardson has failed to discharge the onus of proving that the conduct by the deceased amounted to a failure on his own part to take reasonable care for his own safety. Accordingly the deceased was not guilty of contributory negligence.
In the result, I would allow the appeal with costs both here and below. I would set aside the judgment and orders below and enter judgment for the appellant against the first and third respondents. As the third respondent has made some Workers' Compensation payments, the parties should attempt to agree upon the precise form of the judgment, in default of which, each should deliver written submissions to the Court within fourteen days.
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