Sault v City of Melville
[2002] WASCA 84
•16 APRIL 2002
SAULT -v- CITY OF MELVILLE [2002] WASCA 84
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 84 | |
| THE FULL COURT (WA) | 16/04/2002 | ||
| Case No: | FUL:46/2001 | 21 MARCH 2002 | |
| Coram: | ANDERSON J STEYTLER J MILLER J | 21/03/02 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | EDWARD SAULT CITY OF MELVILLE |
Catchwords: | Negligence Occupier's liability Courier driver utilising stairs instead of access ramp Failure to warn Failure to advise location of ramp Whether breach of duty of care Turns on own facts |
Legislation: | Occupiers Liability Act 1985 (WA), s 5 |
Case References: | Nil Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 De Vries v Australian National Railways Commission (1993) 177 CLR 472 Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510 Graham v Baker (1961) 106 CLR 340 Heath v Aussietrans Pty Ltd [2000] WASCA 12 MacPherson v City of Stirling, unreported; DCt of WA; Library No D980324; 24 November 1998 Magjarraj v Pietracatella, unreported; DCt of WA; Library No D990171; 23 June 1999 McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Paul v Rendell (1981) 34 ALR 569 Trimboli v Prima Homes Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 960520; 9 September 1996 Watts v Rake (1960) 108 CLR 158 Williams v Trimview Roof Restoration Pty Ltd [2001] WADC 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SAULT -v- CITY OF MELVILLE [2002] WASCA 84 CORAM : ANDERSON J
- STEYTLER J
MILLER J
- Appellant (Plaintiff)
AND
CITY OF MELVILLE
Respondent (Defendant)
Catchwords:
Negligence - Occupier's liability - Courier driver utilising stairs instead of access ramp - Failure to warn - Failure to advise location of ramp - Whether breach of duty of care - Turns on own facts
Legislation:
Occupiers Liability Act 1985 (WA), s 5
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr R R Cywicki
Respondent (Defendant) : Mr J Eller
Solicitors:
Appellant (Plaintiff) : S C Nigam & Co
Respondent (Defendant) : John Eller
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
De Vries v Australian National Railways Commission (1993) 177 CLR 472
Executive Director of Health v Lily Creek International Pty Ltd (2000) 22 WAR 510
Graham v Baker (1961) 106 CLR 340
Heath v Aussietrans Pty Ltd [2000] WASCA 12
MacPherson v City of Stirling, unreported; DCt of WA; Library No D980324; 24 November 1998
Magjarraj v Pietracatella, unreported; DCt of WA; Library No D990171; 23 June 1999
McLachlan v Purchas & Ors, unreported; FCt SCt of WA; Library No 980749; 21 December 1998
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Paul v Rendell (1981) 34 ALR 569
Trimboli v Prima Homes Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 960520; 9 September 1996
(Page 3)
Watts v Rake (1960) 108 CLR 158
Williams v Trimview Roof Restoration Pty Ltd [2001] WADC 22
(Page 4)
1 ANDERSON J: This is an appeal from a judgment in the District Court (Nisbet DCJ) dismissing the appellant's claim for damages for personal injury. The appellant was employed as a courier driver by Compu Store which manufactures archive boxes for the storage of business records. It was the appellant's task to deliver 200 cardboard archive boxes to the respondent at its municipal offices. The boxes were in a knocked-down state, and packed flat in bundles. The evidence does not clearly reveal how many boxes were contained in each bundle, but there is some evidence that there were 25 to the bundle. The trial Judge found that, when the appellant arrived at the respondent's offices, he attended at the reception desk and the respondent's employee, Mr David Paull, came to meet him, and took him downstairs to the records department, where he introduced the appellant to the respondent's records manager, Mr Mark Caporn. The appellant and Mr Caporn went to the appellant's vehicle parked at the front of the building, about 20 metres from the front steps. The appellant had already unloaded bundles of boxes from the courier van and had stacked them on a trolley. The evidence of Mr Caporn, accepted by the trial Judge, was that he assisted the appellant to get the loaded trolley up the front steps. This was accomplished without difficulty or incident and Mr Caporn then showed the appellant to the lift, which the appellant used to take the trolley to the basement. Mr Caporn then assisted the appellant to unstack the boxes from the trolley and the appellant then left for another load. As the appellant left, Mr Caporn told the appellant that he would come to assist the appellant with the next load as soon as he had finished putting away the first load. When Mr Caporn returned to the front of the building he found the appellant nearly at the top of the steps with a loaded trolley. The appellant told Mr Caporn that he thought he had "done his back in".
2 The appellant claims to have suffered serious injuries to his lumbar spine, which have totally and permanently incapacitated him for any form of work to which he might otherwise be suited. He brought this action against the respondent, alleging that the respondent was responsible for these injuries. He alleged that the respondent was negligent, alternatively in breach of s 5 of the Occupiers Liability Act 1985 (WA). The particulars of breach of the duty of care at common law and the particulars of breach of s 5 of the Occupiers Liability Act are the same and are pleaded in par 11 of the statement of claim in the following terms:
"11. The injuries referred to in paragraph 8 hereof were sustained by the Plaintiff by reason of the breach of the duty of care by the Defendant, its servants or agents.
(Page 5)
- PARTICULARS OF BREACH
The Defendant, its servants or agents:-
- (a) failed to take any or any adequate precautions for the safety of the Plaintiff whilst he was on the premises in that the Defendant:-
(i) failed to display any or any adequate notice or sign at the premises to direct delivery persons including the Plaintiff to an alternative access ramp;
(ii) failed to instruct its employees to direct the Plaintiff to an alternative access ramp;
(iii) failed to inform the Plaintiff of the existence of an alternative access ramp;
(iv) failed to put into place any or any adequate system to ensure that the Plaintiff was informed of the existence of the alternative access ramp;
(v) in the event, failed to provide the Plaintiff a safe means of access to the Defendant's offices to enable him to deliver archive boxes with their lids with safety;
(b) exposed the Plaintiff to a risk of damage or injury of which it knew or ought to have known in that the Defendant:-
(i) by its employees, directed the Plaintiff to deliver the archive boxes and their lids by delivery trolley up the front steps of the premises;
(ii) failed to display any or any adequate notice or sign at the premises to direct delivery persons including the Plaintiff to an alternative access ramp;
(iii) failed to instruct its employees to direct the Plaintiff to an alternative access ramp;
(Page 6)
- (iv) failed to inform the Plaintiff of the existence of an alternative access ramp;
(v) failed to put into place any or any adequate system to ensure that the Plaintiff was informed of the existence of the alternative access ramp;
(vi) with the knowledge that the Plaintiff would be pulling a loaded trolley up the front steps of the premises backwards failed to render the Plaintiff any or any adequate assistance;
(vii) in the event, failed to provide the Plaintiff a safe means of access to the Defendant's office to enable him to deliver the archive boxes with their lids with safety."
3 In order to understand these particulars, the following additional facts should be stated. At the time of the happening of the events by which the appellant was injured, the municipal offices were undergoing renovations and extensions. Before this work was started, there were at least three ways by which deliveries could be brought into the building. Direct vehicle access could be gained to the building by reversing down an inclined driveway at one side of the building to a delivery bay at basement floor level. An alternative method of access was by means of a pedestrian ramp, provided mainly for persons with disabilities. The third means of access was by the front steps, which were nine in number rising from natural ground level to the floor level, where the reception area was located.
4 When building works commenced, the delivery bay had to be cordoned off. There was evidence that it was the respondent's policy thereafter to have its officers direct couriers and delivery persons to the pedestrian ramp as a means of access, depending, no doubt, on the nature of the delivery. Although the evidence is not altogether clear on the point, the pedestrian ramp seems to have been some distance from the reception area. On all previous occasions when the appellant had made deliveries for his employer, he had gone to the delivery bay. This was his first delivery since the bay had been cordoned off. As appears from the particulars set out above, his case in the main was that he should have been directed by appropriate signage, or by an officer of the respondent -
(Page 7)
- Mr Paull, or Mr Caporn, or someone else - to the effect that the pedestrian ramp was available to be used for courier deliveries; and that, by failing to so inform or direct him and by leaving him instead to negotiate the nine entrance steps with his loaded trolley, the respondent was in breach of its duty to the appellant at common law and under the Occupiers Liability Act. That case is put in a number of ways in the particulars of breach set out above, but that is, I think, what it comes down to.
5 The appellant failed to persuade the trial Judge that the respondent was negligent or in breach of its statutory duty in any of the respects pleaded and this is his appeal from that decision. At the conclusion of argument, the Court ordered that the appeal be dismissed and announced that reasons would be delivered later. These are my reasons for joining in the decision to dismiss the appeal.
6 There were seven numbered grounds of appeal, but counsel for the appellant, Mr Cywicki, abandoned grounds 5 and 6. The remaining grounds of appeal are, nevertheless, copious and it is as well to set them out. They are as follows:
"1. The learned trial judge erred in fact and in law and misdirected himself in finding that the defendant owed no duty to all delivery drivers including the plaintiff to ensure that they were informed by a member of its staff of the existence of the alternative ramp. The learned trial judge should have found that:
1.1 In accordance with the uncontradicted evidence of Messrs Paull and Caporn the defendant had developed a policy whereby all courier drivers were to be directed to the alternative ramp.
1.2 The defendant had thereby adopted a standard of care for the safety of courier drivers.
1.3 There was no evidence that Mr Paull nor Mr Caporn nor any other officer of the defendant had directed the plaintiff to the alternative ramp.
1.4 The defendant had failed in its duty of care to the plaintiff in failing to discharge its self imposed standard of care.
(Page 8)
- 1.5 The evidence of Mr Paull at pages 242 to 246 of the transcript revealed that there were no signs directing the Plaintiff to the alternative ramp.
1.6 Mr Paull knew of the existence of the alternative ramp.
- 2. The learned trial judge erred in fact and in law and misdirected himself in finding that the defendant did not breach its duty of care to the plaintiff by failing to erect signage directing delivery drivers to the alternative access ramp. In making such finding the learned trial Judge further erred in law in rejecting the evidence of Professor Nedved and Miss Jenni Miller on the sole basis that the evidence they gave as to the need for signage was in respect to an issue for determination by the trial judge. The learned trial judge should have found:
2.1 That on the uncontradicted and unchallenged evidence of Professor Nedved and Miss Jenni Miller the defendant in order to take adequate precautions for the safety of the plaintiff should have erected signs directing the plaintiff to the alternative ramp.
2.2 The failure of the defendant to erect signs directing the plaintiff to the alternative ramp constituted a breach of the defendant's duty of care to the plaintiff.
3. The learned trial judge erred in fact and law and misdirected himself in finding that the defendant could not reasonably have foreseen that an experienced delivery driver such as the plaintiff would have committed himself to hauling a heavy load up its front steps without first asking whether there was an alternative access way. The learned Judge should have found:
3.1 There was no evidence that the officers of the defendant knew that the plaintiff was an experienced courier driver.
3.2 The evidence of Mr Caporn was that he had received safety training from the defendant
(Page 9)
- including risk assessment. In assisting the plaintiff with the first load he had considered that the hauling of a heavy load up the front steps was a hazardous exercise. He had turned his mind to the use of the alternative ramp as being safer route. He had not however informed the plaintiff of the alternative route and in doing so he had failed to discharge his duty of care to the plaintiff irrespective of his knowledge of the plaintiff's experience.
- 4. The learned trial Judge erred in law in failing to have regard or sufficient regard to the positive duty imposed upon the defendant by the operation of the Occupiers Liability Act 1985. The learned trial judge should have found:
4.1 The likelihood of the plaintiff sustaining injury in hauling a heavy load up the front steps of the defendant's premises was high.
4.2 The plaintiff's entry onto the premises to deliver cardboard boxes was at the request of and for the benefit of the defendant.
4.3 The nature of the premises was that of an administrative centre. The premises had been specifically designed to accommodate wheeled traffic.
4.4 The defendant was well aware of the diverse and wide ranging traffic coming and going from its premises.
4.5 The defendant in altering the condition of its premises knew that this may cause confusion to those attempting to deliver goods.
4.6 The plaintiff in not being apprised of the existence of an alternative route was therefore unable to make an informed decision as to the risk of using the steps as a delivery route.
(Page 10)
- 4.7 The burden on the defendant of eliminating the risk of injury to the plaintiff was not great given the significant resources available to the defendant.
4.8 That weighing all of these factors in the balance, the defendant failed to discharge its duty of care to the plaintiff.
- …
7. The learned trial judge erred in fact and in law and misdirected himself in finding that the plaintiff would have been unlikely to use the alternative ramp had there been a sign directing him to it.
The learned trial judge should have found that the test of causation was subjective and that the plaintiff had given express evidence that the would have used the ramp had he been informed of its existence (see AB 100E and 101B)."
7 With due respect, there is no need to deal with each of these grounds separately. As can be seen, they are overlapping, if not repetitive and, taken together, they reflect the single complaint that the trial Judge erred in failing to find that in all the circumstances, including the circumstances under which the appellant came to be at the premises, the nature of the premises themselves, the fact that delivery persons were usually directed to the disabled persons' ramp when the loading bay was inaccessible and the risk of injury in hauling heavy loads up steps, the respondent failed to discharge its duty of care to the appellant by failing to positively ensure that he knew that there was a ramp available to be used instead of the steps.
8 In my opinion, the trial Judge was entitled to be not satisfied that the appellant had made out his pleaded case. The steps themselves were not defective, or dangerous, or in any way awkward or unusual. They were only nine in number and were not steep, nor were the risers unusually high. Entrance steps are a common feature of private and commercial buildings throughout the city, suburbs and elsewhere and it is commonplace to see them used by people with wheeled equipment such as trolleys, prams and the like. It is an ordinary human activity. It may be accepted that it is an activity which may present some degree of risk, but the degree of risk, if any, surely depends on what is attempted and how it
(Page 11)
- is done - the manner in which the steps are used. In this case, the evidence was that 200 cardboard archive boxes and lids were to be delivered and the appellant elected to transfer the consignment from his delivery van into the building in two lifts by loading the trolley with 100 boxes and lids at a time. There is no evidence that this manner of delivery was dictated by the nature of the articles or the way in which they were packed. There is no evidence that effecting the delivery in two lifts was other than by the appellant's own choice. The trolley itself weighed only about 22 kilograms. There was evidence that 100 lids weighed 21.2 kilograms and 100 boxes or "bases" weighed 64 kilograms. Mr Caporn's unchallenged evidence was that, after the first load was delivered into the basement and after the appellant had helped him to unload the trolley, Mr Caporn "put away the boxes under the stairwell" (AB 135), from which it is safe to infer that there was no difficulty in dividing up the load into bundles which could easily be managed by one man. Even so, the first lift of 100 boxes and lids was accomplished without difficulty by the two men acting together. Mr Caporn offered to assist with the next lift. The evidence as to that is as follows:
"Okay. Well, how did he manoeuvre the trolley?---Okay. Between the two of us we lifted one end of the trolley, I think I took the lower end, and we lifted it up the stairs.
Was there any problem with that manoeuvre?---No, not on my part and I didn't see any other problem that was stated.
Once you got to the top of the stairs what happened then?---We went through the doors and over to where the lift was.
Through the doors that are on that photo?---The doors in the photo, yes.
Right. And went to a lift?---Went to the lift and took the lift down to the basement.
Both of you?---I may have taken the stairs. It was quite a small lift and you couldn't get that much in it.
Okay. So you went to a records area, did you?---Yes.
Did you both unpack the boxes or just you?---We both started unpacking the boxes off the trolley. At that point in time since it was right next to records that they were doing the extensions
(Page 12)
- and the renovations, I need to pack away those boxes under the stairwell so it would be clear for the next load of boxes.
Right. Where was Mr Sault when you were doing that?---He was helping take those boxes off until the trolley was empty. He then left.
He then left?---He then left to go upstairs.
Do you know what he was going to do?---I presumed he was going to wait for me because I stated, 'I'll be up there in a second to help you with the next load.'
Are you sure you told him that?---I'm positive I told him that.
So you were packing the boxes under the stairs?---Yes.
You told him to wait for you so you could help. Up the stairs again I presume you meant?---Yes. That's correct.
And he went?---Yes."
9 In fact, the appellant elected not to wait for Mr Caporn, but to go ahead alone with a fully-loaded trolley. He could have waited for the assistance that had been offered to him, or he could have divided the load into lifts easily manageable by one person. If for some reason this was inconvenient, or impossible, he could have simply asked whether there was some other way to get the boxes and lids into the building, 100 at a time. He did not do any of these things and I agree with Nisbet DCJ that it would be going too far to hold the respondent responsible for the injury which he sustained in consequence.
10 There is one further observation that should be made. One of the appellant's principal arguments was that, because the respondent itself had adopted a policy that couriers with deliveries should be directed to the pedestrian ramp, the failure to direct the appellant to the pedestrian ramp was a failure "to discharge its self-imposed standard of care": see ground 1.4 above. With due respect, this is a non sequitur.
11 The measures which an occupier actually takes for the safety or convenience of persons coming to his premises might be decisive of the question whether such measures were practicable and reasonably within the capacity of the occupier. But the fact that the measures which are usually taken are not taken in a particular case is not decisive of the ultimate issue of breach of duty. The question is not whether the
(Page 13)
- defendant had a policy or practice with regard to such matters, but whether a failure to do something (whether it was usually done or not) amounted to a breach of duty. For reasons which I have tried to explain, I am not persuaded that failure by the respondent to positively direct the appellant's attention to the availability of the pedestrian ramp amounted to a breach of the respondent's common law or statutory duty, notwithstanding the existence of a policy that this be done.
12 STEYTLER J: I have had the advantage of reading the reasons for decision to be published by Anderson J. I agree with them. They express my own reasons for joining in the decision to dismiss the appeal. There is nothing I wish to add.
13 MILLER J: I have had the advantage of reading in draft the reasons published by Anderson J. I am in agreement with those reasons and have nothing further to add.
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