Safwat Beshara v Australian Postal Corporation; Australian Postal Corporation v Swan Services Pty Ltd; Swan Services Pty Ltd v The Underwriter Insurance Company Pty Ltd; Australian Postal Corporation v The..

[2008] NSWDC 72

CITATION:	Safwat Beshara v Australian Postal Corporation; Australian Postal Corporation v Swan Services Pty Ltd; Swan Services Pty Ltd v The Underwriter Insurance Company Pty Ltd; Australian Postal Corporation v The Underwriter Insurance Company Pty Ltd (No 2) [2008] NSWDC 72
HEARING DATE(S):	7 -16 April 2008
EX TEMPORE JUDGMENT DATE:	16 April 2008
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	1. Verdict for the defendant. 2. Dismiss the cross-claims.
CATCHWORDS:	NEGLIGENCE - Occupier
LEGISLATION CITED:	Workers Compensation Act 1987
CASES CITED:	Jones v Dunkel (1959) 101 CLR 298
PARTIES:	Safwat Beshara (Plaintiff) Australian Postal Corporation (Defendant/Cross Claimant) Swan Services Pty Ltd (Cross Defendant/Cross Claimant) The Underwriter Insurance Company Pty Ltd (Cross Defendant)
FILE NUMBER(S):	4885 of 2003
COUNSEL:	E G Romaniuk (Plaintiff) T McKenzie (Defendant/Cross Claimant) D T Miller with M Castle (Cross Defendant/Cross Claimant) R A Cavanagh (Cross Defendant)
SOLICITORS:	Keddies (Plaintiff) Graham Jones Lawyers (Defendant/Cross Claimant) Moray & Agnew (Cross Defendant/Cross Claimant) DLA Phillips Fox (Cross Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Safwat Beshara, brought this action against the defendant as occupier of a mechanical workshop at Granville, where he was employed as a cleaner in the first few months of 2002. On 29 April that year the plaintiff fell down some steel steps leading to an inspection pit under the floor level of the workshop while he was taking a polishing machine down the stairs. He slipped or lost his footing. The mishap has been described in both ways, but I have reached the conclusion that there is no real distinction between the words used, as the incident was the same and it was a slip or a loss of footing.

2 The New South Wales Government has precluded the plaintiff, like many other people in New South Wales who are injured at work, from suing their employers, even when the employer does not provide a safe system at work, that is because he does not cross the very high threshold established by the workers compensation legislation, in that his degree of whole person impairment does not reach the required level.

3 Nevertheless, I am satisfied on the balance of probabilities that he was seriously injured in his fall. I accept the view of Dr Wilding, who was the medical assessor appointed by the Workers Compensation Commission, as to the nature and extent of his physical injury. In my view, his principal injury was a bone bruising or a fracture of the coccyx, and this caused him considerable pain for some time. Ultimately, his coccyx was surgically removed by Dr Rosenberg. Since then he reports much less pain.

4 The fall also aggravated some pain in his neck, shoulders and lower back. There is ample evidence that he had some organic damage to his cervical spine before this fall and that he reported symptoms of neck, shoulder and lower back pain, radiating into his thighs, in the eighteen month period before the accident.

5 I agree with the medical assessor that the fall probably aggravated these conditions, but the probability is that the plaintiff would have suffered from neck, shoulder and back pain in any event, whether or not he had fallen at work.

6 As a consequence of his injuries the plaintiff has become somewhat depressed, to the extent that Dr Walden, a psychiatrist who examined him for the defendant, took the view that if some physical injury could be causally related to the fall, she was of the view that his psychiatric condition was a direct result of the physical condition, and on my findings that would be the case.

7 He has suffered great pain, even though I would have to accept that at times he exaggerated the extent of his pain and injuries. He has had some major surgery relating to his coccyx. He has had a number of psychological problems for which he has received extensive counselling. He has had marital difficulties, which he attributes to his psychological condition and a number of other problems.

8 In terms of general damages which he might be entitled to if his claim succeeds I would assess him between thirty-three and a third and thirty-five per cent of the most extreme case.

9 I would also be satisfied on the balance of probabilities that the plaintiff’s future earning capacity has been affected by the injury suffered in the fall. He is, on my view, clearly unfit to do any physical labour such as cleaning work, although I am satisfied that he would be able to earn something. I am not satisfied that he would have made out any case for domestic assistance.

10 If the plaintiff were able to succeed against the defendant he would be entitled to recover significant general damages and some damages for economic loss. I am not satisfied on the balance of probabilities that the plaintiff has properly mitigated his losses, as I would find that he has, at least since his surgery by Dr Rosenberg, been capable of earning some income, but he has chosen not to do so.

11 He is a man now in his early forties. He is well educated. He has a degree in accounting and experience in accounting in Egypt and I understand that a person of his religious background might find Egypt uncomfortable and he would prefer to spend his life in Australia.

12 He now understands English and I observed him during the trial following the questions put to him and speaking in some way, so I am satisfied that he could hold down a job of types which were described to him in the course of his cross-examination.

13 Because of the conclusion I have reached about the liability of the defendant it will not be necessary for me to address those issues in more detail.

14 The premises where the plaintiff was working were a fairly modern workshop, where the defendant repairs its motor vehicles. The building has two levels, a floor level where most of the work is done and an inspection pit below floor level. After the plaintiff started working for the Swan companies, it is agreed that Swan Cleaners were his employer, he was designated to work in the workshop area, cleaning it. His evidence, which was not challenged, was that he spent most of his time cleaning the floor level but from time to time he had to go into the inspection pits and clean the floors there.

15 The plaintiff’s evidence is that when he went into the inspection pits his supervisor, who is called Hussein, had told him to take a polishing machine to remove deposits of grease. He also said that Sam, who was the defendant’s manager, had given him similar instructions. According to his evidence he was required to take the machine down the stairs, use it and then bring it up to the floor level again. He gave evidence about how he did this. The machine which is in evidence has two wheels and if the handle is tilted back towards the operator it can be wheeled along a flat surface. It can also be pushed up and down stairs using the wheels, and that is what happened on this occasion when he fell on the stairs.

16 The allegation of breach of duty against the defendant is framed in terms of a breach of the occupier’s duty to take reasonable care to prevent injury to those who come onto the premises. Specifically, the allegation is that first, the stairs were not safe, and an expert witness, Mr Simpson, gave evidence that the design of the stairs did not comply with the appropriate Australian Standard, although the degree of non-compliance was small. Secondly, it was alleged that at the relevant time the stairs were covered by water and/or oil so that they were slippery and unsafe. The plaintiff’s evidence was that it was raining at the time and that there were pools of water on the floor of the workshop inside the doors. However, I could not find on the evidence presented in this case that the stairs, as opposed to the floor, at the time were covered either in oil or in water or in a combination of both. That finding alone is sufficient to dispose of the issue of liability.

17 Even though the stairs did not comply with the Australian Standard, the plaintiff’s evidence was that he had used them safely on a daily basis for some months and that the mechanics who worked in the inspection pit used them regularly. There was no evidence of any other slip or fall on the stairs. In any event, the manager of the workshop, Mr Sam Abu Dhou, gave evidence that he told workers, and specifically the plaintiff, that heavy equipment was not to be taken up and down the stairs. Mr Abu Dhou’s evidence was that the plaintiff had asked him three times for permission to take a polishing machine down the stairs and that he refused permission on each occasion.

18 I find more probably than not that the plaintiff was told this before the accident. Mr Abu Dhou gave evidence that his instructions were that the cleaning in the pits was to be done with brooms, mops, hoses and degreasing fluid not with a machine. As I have indicated the plaintiff said that both Mr Abu Dhou and Mr Hussein had instructed him to take the polishing machine downstairs. Because I have some doubt about the reliability of the plaintiff’s evidence in respect of his injuries, I prefer the evidence of Mr Abu Dhou to that of the plaintiff on this issue.

19 I find that the defendant’s representative directed the plaintiff not to take a polishing machine down the stairs. That direction is sufficient to discharge any other duty which the defendant had to ensure that the stairs were used in a safe way.

20 Further, I find that there is nothing inherently dangerous in the stairs themselves, particularly as the plaintiff was familiar with them. With stairs, there is always an obvious risk that a person who slips on them may fall.

21 Although Mr Hussein was available - the plaintiff saw him bringing the polishing machine to court and his identification of Mr Hussein was not challenged - Mr Hussein was not called to give evidence. I would, therefore, be obliged to accept the plaintiff’s evidence that Mr Hussein had told him to take a polishing machine down the stairs as I must infer pursuant to the rule in Jones v Dunkel that Mr Hussein’s evidence would not have assisted any party who called him. This is relevant to the defendant’s reliance on the Workers CompensationAct s151Z, as it would inevitably lead to a finding that the employer failed to provide a safe system of work. The hearsay evidence of a so called toolbox meeting of which a record is in evidence is hearsay and I do not attach great weight to it.

22 There is other evidence which would suggest that there was no proper supervision of the way in which the plaintiff carried out his duties, but I do not have to decide that issue as the employer is not a party, except to the extent that I should indicate the degree to which the employer if sued would have been found liable for the plaintiff’s injury.

23 If the matter had to be decided I would also find that the plaintiff, himself, failed to take reasonable care for his own safety, given the direction of Mr Abu Dhou that he should not take heavy equipment down the stairs on his own. I would find the employer 60% responsible and the plaintiff 40%.

24 However, in the circumstances I will find a verdict for the defendant.

25 I think that disposes also of the cross-claims. They should be dismissed.

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