Robertson v B H MacLachlan Pty Ltd

[1985] HCA 21

HIGH COURT OF AUSTRALIA

Mason, Wilson, Brennan, Deane and Dawson JJ.

BRIAN LESLIE ROBERTSON v. B.H. MACLACHLAN PTY. LTD.

26 March 1985

Decisions

MASON and DEANE JJ. This appeal from a decision of the Full Court of the Supreme Court of South Australia arises out of an action in negligence brought by the appellant against the respondent for damages for personal injuries he sustained in February 1978 while drawing water from an underground tank on the respondent's property, known as "Jumbuck Station", in the far North-West of South Australia. The sole question is whether the Full Court of the Supreme Court was in error in reversing the primary judge's finding that the appellant's injuries were attributable to a breach of the respondent's duty of care.

2. The appellant was employed as a cook by a firm of shearing contractors which commenced work on the property early in January 1978. He was then some fifty years old. He worked in a kitchen attached to the shearers' quarters which were located near the shearing shed. His duties were to provide meals for members of the shearing team and, from time to time, for stationhands employed by the respondent.

3. The kitchen at the shearers' quarters was normally supplied with rainwater by a pipe from an overhead tank. The overhead tank was in turn supplied with water pumped from an underground tank situated about 30 yards from the kitchen. The pumping of the rainwater from the underground tank to the overhead tank was organized by the respondent. However, problems with the motor of the pump occurred some weeks after the shearing commenced and resulted in a restriction of the amount of water reaching the overhead tank. On the day the appellant was injured the overhead tank was empty and consequently no rainwater was being supplied to the kitchen by means of the pipe.

4. The appellant had previously complained about the lack of rainwater and his complaints had led to steps being taken by the respondent to have the pump repaired or replaced. As a temporary measure, the respondent had, through its overseer, provided access to rainwater by means of an open topped bucket on a rope which could be used to draw water through an opening in the top of the underground tank. The overseer had offered to have water drawn and carried to the kitchen for the appellant until the pump was operational, and a quantity of water had in fact been supplied to the kitchen in this way by an employee or employees of the respondent. The evidence does not make clear when this method of water supply commenced but it was found by the primary judge that it was "some time" prior to the appellant's injury.

5. The underground tank was a cylindrical reinforced concrete structure the top surface of which was flat and stood two to three feet above the level of the ground. It was found by the primary judge that the opening in the of the tank was square or rectangular with a flat iron lid. The outside edge of the opening was eighteen inches to two feet from the edge of the tank. The water level appears to have been between three feet and six or seven feet below the top of the tank. The bucket ordinarily used to draw the water was a plastic bucket with a two gallon capacity although there was another plastic bucket in the vicinity with a three gallon capacity which may have been used.

6. The appellant, who was accepted by the primary judge as a basic witness of truth, said that he did not have to go over to the underground tank at any time before the day on which he was injured. On that day, after the morning "smoko", it seems that both the members of the shearing team and the employees of the respondent were at the shearing shed or handling sheep in the yards and the appellant went alone to the tank to draw water. He said that he drew out one bucket of water and carried it to the kitchen where he used it to fill his kettles. He then returned shortly afterwards to draw more water. It was in drawing water a second time that the incident occurred which caused his injuries.

7. According to the appellant's evidence the rope was quite long, probably measuring twenty to thirty feet. He tied the rope to the handle of the bucket and stood on the top of the tank to lower the bucket into the water through the opening as he had done when he had drawn the water the first time. He said that as he pulled the bucket filled with water up through the opening he tried to swing it from his left hand to his right hand when he tripped on the rope and was dragged off the side of the tank onto the ground. He landed heavily on his feet on the ground, jarring his back and causing the injuries of which he complains. The primary judge found on the balance of probabilities that the incident occurred as the appellant pulled the bucket clear of the top of the tank and simultaneously turned to get down from the tank and that he tripped on the rope which was lying on the top of the tank. It was not suggested, however, that the rope had been placed in that position by an employee of the respondent and it seems that the rope was left there by the appellant himself after he untied it from the bucket on the first occasion on which he drew water from the tank. He untied the rope before carrying the bucket to the kitchen. On returning to the tank he again attached the rope to the bucket, leaving that part of the rope which was not in use lying on the surface of the tank.

8. The primary judge found that the respondent had been guilty of negligence and the appellant of contributory negligence and apportioned responsibility as to 75 per cent to the respondent and 25 per cent to the appellant. His Honour entered judgment for the appellant in the sum of $95,182.40. On appeal, the Full Court, by majority (Sangster and Millhouse JJ., Mitchell A-C.J. dissenting) reversed his Honour's finding of negligence on the part of the respondent and entered judgment for the respondent.

9. The issue which the primary judge was called upon to the drawing of the rainwater from the underground tank during the period in which the pump had ceased to be operational, the respondent failed to take reasonable precautions to guard against a foreseeable risk of injury to the appellant. Once the primary judge made a finding of negligence in this respect, the Full Court in deciding whether this was the proper inference to be drawn from his findings of fact - there being no challenge to the correctness of those findings - was bound to give respect and weight to the conclusion of the primary judge.

10. Giving that weight and respect to the finding of negligence made by the primary judge on findings of fact which are not disputed, we do not discern any sufficient ground for disturbing it. The matter is very much one of impression on which different minds might reasonably reach different conclusions and, after giving due consideration to the arguments for and against the drawing of an inference of negligence, we are persuaded that the conclusion reached by his Honour was entirely open on the findings which he made.

11. Although the respondent's overseer offered to have the water drawn and carried to the kitchen, it was, as his Honour stated, reasonably foreseeable by the respondent that the appellant would draw water from the underground tank in the manner in which he did for the purposes of his cooking. In the circumstances which existed on the day and at the time he was injured it was entirely reasonable for him to attempt to draw the water himself without enlisting the aid of others.

12. It is apparent that the risk that a person drawing water from the tank might slip or trip on the rope in the course of the operation was reasonably foreseeable. Indeed, this is not disputed. However, the respondent submits that the inherent likelihood of such a mishap occurring was minimal and that there was even less risk of the appellant suffering such a mishap because in normal circumstances the respondent's employees were available to draw water. There are two answers to this submission. The first is that it is incorrect to assess the likelihood of risk in terms of the danger which it presented to the appellant alone; it must be assessed in terms of the danger which it presented to anyone having occasion to draw water by the method provided. The second answer is that the risk of injury arising from someone slipping or tripping on the rope when pulling up the bucket and moving in the confined space between the opening and the side of the tank preparatory to lowering the bucket to the ground, or in the process of clambering or jumping down from the tank, though perhaps slight, was nonetheless obvious and not fanciful.

13. Likewise, we cannot accept the submission that the likelihood of severe injury, such as that sustained by the appellant, resulting from the accident, was minimal. Granted that the accident was reasonably foreseeable the likelihood of severe injury, though certainly not high, was a distinctly foreseeable possibility.

14. In the light of these considerations the primary judge was quite entitled to conclude that the respondent was not entitled to ignore the risk inherent in the method of drawing water which was in use at the time. The majority in the Full Court pointed out that this method was an improvised temporary arrangement on a country property and that the risk of tripping on a rope which was being used to draw a bucket of water from a tank is perhaps not one which would normally be regarded as requiring any particular precaution to be taken. However, it is somewhat misleading to describe the method of drawing water adopted by the respondent as a purely emergency measure. It was intended to be used for an indefinite period as the sole method of obtaining rainwater for the kitchen until the pump was repaired or replaced. It was accepted by the primary judge that the appellant needed in excess of 20 gallons of rainwater each day for use in the kitchen. In these circumstances, the use of such a long unsecured rope - several times longer than was necessary - posed a risk which, because it was avoidable or could be minimized simply by securing the rope or by shortening its length, could quite properly be seen as reasonably requiring precautionary action on the part of the respondent.

15. For these reasons we conclude that the Full Court was not justified in reversing the finding of negligence by the primary judge.

16. Although the respondent submits that the assessment of 25 per cent contributory negligence made by the primary judge should be increased to 50 per cent, no sufficient reason has been shown for interfering with the assessment made by his Honour.

17. In the result we would allow the appeal, set aside the order of the Full Court of the Supreme Court, restore the judgment of Legoe J. and order that the respondent pay the costs of the appellant of the appeals to the Full Court of the Supreme Court and to this Court.

WILSON, BRENNAN and DAWSON JJ. The appellant, who was the plaintiff in the action, was employed by a firm of shearing contractors as a shearers' cook. In the course of his duties he suffered injury to his back as the result of an accident.

2. At the time of the accident the appellant was cooking for a team of shearers who were working at Jumbuck Station in the northern part of South Australia. That station was one of a number of properties run by the respondent, whose headquarters were at Commonwealth Hill Station. At the relevant time, a man named Wilson acted as the respondent's overseer at Jumbuck Station.

3. The appellant cooked for about eighteen men, who included some of the station-hands as well as the shearers. The kitchen used by the appellant was part of the shearers' quarters, which was some distance from the shearing shed. Water for the shearers' quarters and for the shearing shed was provided from a large cylindrical cement tank, which was sunk into the ground. The tank protruded above ground level and the flat top surface was some two to three feet above the surrounding ground. In the top of the tank there was an access hole with a flat iron lid which was eighteen inches to two feet from the edge of the tank. By means of this opening, it was possible to reach the water in the tank, the level of which was up to seven feet below the of the tank. Water from the cement tank was pumped by a motor-driven pump to a smaller overhead galvanized iron tank on a stand alongside the concrete tank. From there, pipes ran to the shearers' quarters and the shearing shed. The tanks were about thirty yards away from the shearers' quarters.

4. Some days before the accident, the pump, or the motor which drove it, failed to function and water in the overhead tank ran out. Complaints were made to Wilson, who contacted Commonwealth Hill Station and asked for a new motor and pump. The replacements were going to take some time to arrive, so the lid to the access hole in the cement tank was taken off and water was obtained by dropping a bucket through the hole and hauling it up by means of a rope attached to its handle. This was the method used on other occasions to obtain water to prime the pump and for this purpose there was a two-gallon plastic bucket in the vicinity of the tank. In addition, there was another two or three-gallon plastic bucket, which was kept in the vicinity of the shearers' quarters. Wilson offered to arrange for water to be supplied from the cement tank to the kitchen and before the accident a station-hand did in fact cart some water to the kitchen.

5. On the day of the accident, however, Wilson and the station-hands were busily engaged with the shearers at the shearing shed and the appellant was alone in the shearers' quarters. He ran out of water and, using one or other of the plastic buckets, obtained water himself from the cement tank for use in the kitchen. When he needed more water, he went back to the tank. The rope was there and he tied it to the handle of one or other of the buckets. The rope was some twenty to thirty feet in length and half-an-inch to one inch in diameter. The appellant obtained the water by standing on the top of the tank and dropping the bucket through the access hole. He hauled the bucket containing the water back through the hole and, as he described it:

"Went to swing it from the left hand to the right hand and I turned and tripped on the rope and it dragged me off ... Actually I tripped on the rope as I was swinging it from the left to right hand and just grabbed it and it pulled me straight off the side."

6. The appellant landed on his feet and, although he did not fall over, he felt a sharp pain going right through the middle of his back. The bucket of water was still in his hand and its contents remained largely unspilt.

7. The learned trial judge found that the appellant pulled the bucket up to the top of the tank and that when the bottom of the bucket cleared the top, he turned, probably in the direction of where the rope was lying piled up on the tank top by his foot on the side to which he had turned; in his attempt to carry the bucket of water to the edge of the tank, he tripped on the rope.

8. As a result of the accident, the appellant suffered injury to his lumbosacral spine, resulting in severe permanent disability.

9. There was no dispute that the respondent was under a duty of care to take reasonable steps for the appellant's safety, having regard to the relationship between them. The learned trial judge found that there was a failure to discharge this duty because " ... the rope and method of lowering the bucket on the rope and drawing it up again ... " had not been " ... set up in such a way so as to provide adequate protection from the movements, particularly the foot movements of the person drawing water". The risk to which the appellant was subjected was described by the trial judge as:

" ... the risk which arose from the use of the long rope in lowering this bucket into the tank and drawing a bucketful of water out again."

10. On appeal by the respondent, the Full Court (Sangster and Millhouse JJ.; Mitchell A.C.J. dissenting) held that there was no failure on the part of the respondent to discharge its duty to the appellant. It had not, in the view of the Full Court, failed to take reasonable steps to avoid risk of injury to him and was not guilty of negligence.

11. The facts found by the trial judge, from which the foregoing recitation is taken, are not in dispute. It was foreseeable that the appellant, in his capacity as a shearers' cook, needing water in the kitchen and lacking any immediate assistance, would draw water from the tank by the means provided. The means provided was a bucket and a length of rope, longer than necessary for drawing water from the tank. The sole question is whether, upon those facts, a reasonable man in the position of the respondent would have thought that some precautionary step was necessary to safeguard the appellant from a risk of injury.

12. The operation in which the appellant was engaged at the time he was injured was not, in our view, an operation of an unusual kind on a large sheep station and was not a difficult or risky operation. The appellant had safely carried out the task of drawing water on at least one occasion before the accident happened, as indeed had others before him. When he did so, he was able to position himself and the rope in such a way as to carry out the task without mishap and, in our view, it would be unreasonable to have imposed upon the respondent any requirement to take steps to safeguard against the possibility that the appellant might handle the rope in such a way as to trip himself up.

13. In the end, when it is asked what steps the respondent could have taken to safeguard the appellant's safety, the only sensible answer that can be advanced is that it could have ensured that the rope was shorter. But even accepting that the appellant might not have tripped upon a shorter rope, it was not, we think, unreasonable for the respondent to assume that the appellant would handle the rope without running the risk of injuring himself. It would not, in our view, have been reasonable to have imposed upon the respondent a duty to ensure that the rope used was of such a length that none of it remained on the tank top when the bucket of water was being hauled up. The length of rope needed to haul water from the tank would have varied from time to time according to the level of the water in the tank and no significant difficulty was to be anticipated in the management of any rope not immediately required for the purpose.

14. Notwithstanding the sympathy to which the appellant is entitled for the regrettable injury which he suffered, it would, in our view, be not only unreasonable, but also unrealistic, to find any breach of duty on the part of the respondent. We would dismiss the appeal.

Orders

Appeal dismissed with costs.