Schmidt v S J Sanders Pty Ltd
[2012] QDC 148
•22 June 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Schmidt v S J Sanders Pty Ltd [2012] QDC 148
PARTIES:
HEINZ JOHANN SCHMIDT
(Plaintiff)AND
S J SANDERS PTY LTD (ACN 074 002 163)
(Defendant)FILE NO/S:
2802 of 2010
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
22 June 2012
DELIVERED AT:
Brisbane
HEARING DATE:
16, 17 and 18 April 2012
JUDGE:
Irwin DCJ
ORDER:
1. The defendant is to pay to the plaintiff the sum of $225,000 clear of the WorkCover Queensland refund as damages for personal injuries and consequential loss arising as a result of the negligence of the defendant by it servants or agents.
2. I will hear from the parties if necessary in respect of interest and costs.
CATCHWORDS:
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - SPECIAL RELATIONSHIPS AND DUTIES - EMPLOYER AND EMPLOYEE - Where the plaintiff was employed by defendant as a truck driver - where the plaintiff was injured when he fell while attempting to alight from the cabin of a truck during wet weather - whether the plaintiff had proved the means by which he slipped and fell to the ground - whether the defendant had breached its duty of care to the plaintiff - whether the risk of injury to the defendant was foreseeable - whether there was a failure to provide a safe system of work - whether the defendant’s breach caused the injury to the plaintiff.
Workplace Health and Safety Act 1995 (Qld), s 28(1).
Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29, applied.
Bus v Sydney City Council (1989) 167 CLR 78, applied.
Carlile v Hegedus & Ors [2003] QSC 323, applied.
Davie v New Merton Boards Mill Ltd [1959] AC 604, distinguished.
Dibb Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 2010, cited.
Donoghue v Stevenson (1932) AC 562, cited/
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, cited.
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited.
Lusk & Anor v Sapwell [2011] QCA 59. applied.
McLean v Tedman (1984) 155 CLR 306, applied.
McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423, applied.
Miller v Council of the Shire of Livingstone & Anor [2003] QCA 29, cited.
Nagle v Rottnest Island Authority (1993) 177 CLR 423, cited.
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225, applied.
Reck v Queensland Rail [2005] QCA 228, applied.
Vairy v Wyong Shire Council (2005) 223 CLR 422, applied.
Wakelin v London and South-Western Railway Co (1886) 12 App Cas 41 at 47, cited.
Webb v The State of South Australia (1982) 56 ALJR 912, cited.
Williams v Mount Isa Mines Limited [2000] QSC 161, distinguished.
Williams v Mount Isa Mines Limited [2001] QCA 101, distinguished.
Wyong v Shirt (1980) 146 CLR 40, applied.
COUNSEL:
J.P. Kimmins for the Plaintiff
G.C. O’Driscoll for the Defendant
SOLICITORS:
Shine Lawyers for the Plaintiff
MVM Legal for the Defendant
The plaintiff’s claim and the background to it
The plaintiff was employed by the defendant as a truck driver and was injured at approximately 3.00 am on 15 January 2008 when he fell while attempting to alight from the cabin of a Volvo FM prime mover which he had driven in the course of his employment to a location on the Bruce Highway at Gunalda. As a result, he suffered head injuries, chronic musculo-ligamentous injuries to his cervical and lumbar spine, headaches and psychiatric injuries.
He instituted an action against the defendant, alleging that his injuries were caused by the negligence, and/or breach of contract of the defendant by its servants and agents. His damages have been agreed in the sum of $225,000 clear of the WorkCover Queensland refund. However, liability remains in dispute. No contributory negligence has been pleaded in defence.
Notice of Claim
The 4 May 2010 notice of claim provides the following description of events:[1]
[1]The reference to Heinz is a reference to the plaintiff. The notice of claim is set out in Exhibit 2 which is the 23 July 2010 InterSafe report.
“Heinz had been working long hours and was in the process of completing a 14 hour shift at the time of the incident. On 15 January 2008 at about 6:00pm Heinz left Brisbane and drove a Volvo B Double truck to Gladstone. Heinz was given a 30 minute changeover period and then he got back in his trick and proceeded to drive back to Brisbane. Once on the road Heinz has a 30 minute break then a 6 hour trip back to Brisbane. It was raining very heavily that night on the trip to Gladstone and back.
Heinz had driven from Gladstone and down to Gunelda (sic) (just past Gympie). The rain was still very heavy and Heinz was travelling at an appropriate speed under the limit of 100km/hr.
Heinz recalls the alarms in the dashboard and the light started flashing, the light signal was ‘stop unit shutdown’. Heinz immediately looked for somewhere to get the vehicle off the roadway and put the trucks flashing lights on. Heinz recognised from the dashboard that the alarm was referring to a loss of air associated with the brakes.
Heinz rang his boss Steve Sanders who is based in Rockhampton. Steve queried Heinz about whether the loss of air was in the trailer or the truck. Steve told Heinz to turn the air off to the trailers and start again. Heinz did as Steve instructed and it was discovered that the problem was in the prime mover. Steve Sanders rang a Volvo mechanic in Gympie to come out and fix it.
Heinz went in and out of the truck, approximately 3 times, to check the air lines. It was on the third time that Heinz had a fall.
Heinz recalls opening the door and then grabbing the handle beside the wheel with his right hand. The next step was that Heinz had to move out of the seat and to place his right foot onto the top step and whilst doing this Heinz had to twist his body so that his back is facing away from the truck. There is another handle on the lower part of the seat which Heinz is able to grab with his left hand whilst doing this. It is very difficult for Heinz to reach the first step because it is under the floor of the cabin and does not extend out plus it is situated close to the front of the truck. As Heinz was attempting this manoeuvre his foot slipped and he has fallen and landed on the roadway. Heinz was on his stomach. Heinz grabbed his phone and put it in his pocket.
Heinz was trying to manoeuvre himself to get closer to the truck as he was in the middle of the roadway and could have been run over by oncoming traffic.” (emphasis added)
InterSafe report – 23 July 2010
In an expert report of 23 July 2010 by Mr Dargusch of the InterSafe Group[2] reference is made to an interview with the plaintiff in which he verified this description of the incident. Mr Dargusch reports that the plaintiff:[3]
“…recalls placing his right foot onto the top step while remaining partially seated in order to begin descent of the access system. … At some point following this, Mr Schmidt recalls his right foot slipping and/or losing his balance. After this, he only recalls ‘coming to’ lying on the roadway.” (emphasis added)
[2]Exhibit 2. See also footnote 25 as to the role played by Mr McDougall of InterSafe in the preparation of this report.
[3]Ibid, page 2, paragraph 5.
Mr Dargusch said that when he was preparing this report he understood the purpose of critically recording any instruction the plaintiff gave him in relation to how the incident and the injury occurred. He testified this is what he did in this particular case and he recorded everything the plaintiff told him about how the incident occurred. Mr Dargusch also confirmed that the plaintiff told him that he had no memory after his foot slipping.[4]
[4]T 2-79, ll 40-55.
The plaintiff said that when he spoke to Mr Dargusch he was doing his best to be truthful and accurate to the best of his recollection about what occurred.[5] However, when he was referred in cross-examination to the description of the incident reported by Mr Dargusch, as set out in [4] above, he responded that this was not really what he had told Mr Dargusch.[6] The plaintiff said:[7]
[5]T 1-30, ll 42-51.
[6]T 1-41, ll 36-46.
[7]Ibid, ll 48-50.
“Well, I told him how I usually got out of the truck and that involves shifting my foot, twisting my foot.”
Further the plaintiff did not really think he had been knocked out. This appears from the following exchange in cross-examination:[8]
“You thought you were knocked out?-- Well, no, not really because everything was still in time. I mean, my phone was just lying there, the time was there. I had a premonition that I – you know, that I thought I might have been out for a couple of minutes, but the – I don’t know. The ambulance bloke reckons I probably wasn’t.”
[8]T 1-46, ll 22-26.
It is relevant that the description of the incident reported by Mr Dargusch, as set out in [4] above also refers the reader to Section 3 of the report “for a full description of the method”. Section 3, with the assistance of contemporaneous photographs, describes the plaintiff’s demonstration of the method he always employed to exit the vehicle, and that he employed “at the time of the incident”. The description is as follows:[9]
[9]Exhibit 2, page 5.
“a. See Figure 5.
i.Mr Schmidt would lean outwards on the seat and extend his right foot outwards and down onto the top tread.
ii.While doing so, he would grasp the handle at the right of the door opening with his right hand, and possibly grasp the steering wheel with his left hand.
iii.Mr Schmidt would not pivot his body before stepping onto the top step.
b. See Figure 6.
i.His body would move outwards and begin to pivot so that he was facing into the truck.
ii.As this was occurring, his left arm would reach backwards and behind his body toward the handle on the left of the door, and his left foot would begin to move outwards.
c. See Figure 7.
i.Once facing into the truck, he would then grasp the handle on the left side of the door with his left hand, and maintain his grasp of the handle on the right side of the door with his right hand.” (emphasis added)
The description continues with how the plaintiff next moved his left foot onto the second tread, followed by his right foot, while still maintaining a grasp on both handles; then describes his descent to the third tread; and then stepping onto the ground. The Figures are the photographs. Figure 6 shows the plaintiff’s right foot pivoting on the top tread as the descent begins. I note that the demonstration used a different Volvo prime mover with similar truck access system steps. The primary difference was the vertical height between the steps (due to a higher cab height).[10] The plaintiff was also wearing different shoes to those worn at the time of the incident.[11]
[10]Ibid, page 3, paragraph 1.
[11]Ibid, page 5.
Admissions
The defendant admitted the following allegations contained in the amended Statement of Claim:[12]
[12]See Amended Defence of Defendant, filed 22 August 2011, paragraph 1. These admissions relate to paragraphs 5(a)-(g) and (i) of the Amended Statement of Claim. The equivalent paragraphs appear in the Further Amended Statement of Claim, filed 10 April 2012. The further amendments only relate to damages and the date of the plaintiff’s fall. This does not effect the admissions previously made. This paragraph sets out paragraph 5 as it appears in the Further Amended Statement of Claim.
“5. On or about
1615 January 2008 at approximately 3:00am:(a)the plaintiff, in the course of his employment with the defendant, whilst travelling on the Bruce Highway at Gunalda in the State of Queensland, noticed that the warning lights, on the dashboard of the Volvo B Double which he was driving, relating to the air brakes started flashing;
(b)the plaintiff was in the process of completing a 14 hour shift and he had completed approximately 9 hours of the shift;
(c) throughout the night it had been raining heavily where the plaintiff had been travelling and in a lot of places throughout the south eastern coast of Queensland;
(d) the plaintiff stopped the vehicle on the side of the road and telephoned Steve Sanders, who was a servant or agent of the defendant;
(e) Mr Sanders instructed the plaintiff to perform a number of tests on the vehicle to identify where the problem was and this involved the plaintiff getting in and out of the vehicle’s cab a number of times;
(f) on the third time that the plaintiff exited the vehicle’s cab to carry out the aforesaid tests the plaintiff:
i. took hold of the handle beside the wheel with his right hand;
ii. moved out of the seat and placed his right foot onto the top step and whilst doing this had to twist his body so that his back was facing away from the truck;
iii. his right foot was partially overhanging the top step;
iv. he then took hold of another handle with his left hand on the lower part of the seat;
v. the first step was under the floor of the truck’s cab, and did not extend out and was very close to the front of the truck;
vi. as the plaintiff was making the manoeuvres described above his foot slipped on the edge of the first step and the plaintiff fell to the ground (‘the incident’);
(g) the first step of the vehicle was made from aluminium and had a rounded front edge;
….
(i) the edge of the first step of the vehicle was wet from the rain and from the plaintiff getting in and out of the truck’s cab on the 2 previous occasions.” (emphasis added)
Paragraph 5(h) was not admitted. It was in the following terms:
“the edge of the first step of the vehicle was slippery and was not slip resistant;”
The basis of the denial was:[13]
“The Defendant denies the allegations in paragraph 5(h) of the Amended Statement of Claim as they are untrue, as the step was slip-resistant as designed and constructed by the manufacturer, Volvo, and not altered in any way by the employer, and was thus not slippery. Further, the Plaintiff had used the same step at least two times prior to the event described in the pleadings on the night in question, and on many previous occasions in the two and a half months that the plaintiff was driving the said vehicle.”
[13]Amended Defence of the Defendant, filed 22 August 2011, paragraph 4.
The Plaintiff’s evidence
The plaintiff, who was 60 years of age at the time of the incident, gave evidence to the following effect. He commenced driving as an occupation in 1995, first as a coach driver. In 1997 he purchased trucks and ran his own trucking company. His employment with the defendant commenced in October 2007. This was the first time he had driven Volvo vehicles. He usually drove the same truck but had never previously driven a vehicle with the step configuration of the Volvo.[14]
[14]T 1-21, ll 53-55. He said at T 1-22, ll5-20 a Scania was the only other truck he had driven which was a “cabover” (i.e. cab over engine) but there were pronounced teeth along the whole of the steps to grab the bottom sole of his shoe. He said at T 1-12, ll 1-2 he had driven this vehicle for a little while when he worked for Latters from 2006.
He never received any instruction in relation to getting out of these vehicles during his employment with the defendant. His evidence-in-chief included:[15]
“…Now when you started working with the defendant did you experience any difficulties with getting out of the vehicle?-- Just that every man has his own way of getting out of them because of the room that was involved. I was a little bit more weighty, so yes, I did have a little bit.” (emphasis added)
He described his particular method of getting out the vehicle during the course of his employment with the defendant. This is the method he demonstrated to Mr Dargusch and is documented in the 23 July 2010 report. His evidence was that this was the method he used all the time at the depot. Although he did not know if his supervisor was present. One of his supervisors had instructed about the configuration of the dashboard only.
[15]T 1-13, ll 29-34.
His evidence was that on 14 January 2008 he drove the Volvo B Double truck carting general freight from Brisbane to Gladstone, departing at about 6.00pm and arriving at about midnight. He had about half an hour break at Gin Gin and a similar period to changeover in Gladstone. There was then a 15 minute break at Gin Gin before proceeding towards Gunalda. It was raining very heavily on the trip from Gladstone. He stopped the vehicle at Gunalda because of the concern about low air.
The plaintiff said that following this he exited the vehicle on three occasions before the incident the subject of the claim occurred. On the first occasion he could not hear any air. He then returned to the cabin and reported this by phone to Steven Sanders, a director of the defendant. At Mr Sanders’ request, he exited the vehicle for the second time to turn the tap off in order to determine where the origin of the leak was. On returning to the vehicle, he again phoned Mr Sanders and advised that the leak must be in the prime mover. Mr Sanders said it was necessary to get a mechanic out. After this he exited the cabin for the third time to turn the taps back on. His evidence was that it was still pouring and the wind was driving the rain straight into the cabin when he opened the door to get in and out.
He said that the incident occurred when he decided to get out of the vehicle on a fourth occasion to place safety reflective triangles behind it. His evidence-in-chief was that prior to getting out, he pushed a foot pedal to put the wheel up because this made it easier to get in and out.[16] He opened the door and grabbed the right handle up the top with his right hand and grabbed the steering wheel with his left hand.[17] He put his right foot on the top step. His evidence then continued as follows:[18]
[16]T 1-24, ll2-8.
[17]T 1-20, ll 23-26. Although the plaintiff does not here specifically refer to the right handle, in context this was the clear meaning of his evidence.
[18]T 1-20, l 30 to T 1-21, l 51.
“Which step?-- The top step and then I just sort of fell forward and was sort of there, just there, and I stood up and swivelled to go around with my hand and I just lost my balance and just slipped off. The foot just slipped straight off the step. I tried to grab the door handle because that was the next thing you could grab. If I had got to that I would probably have saved a lot of it, but, no, it just – just was that wet it was so slippery it just completely lost it.
Okay. Now, when you put your right foot on the top step was it as you’ve indicated your normal method was?-- That’s correct.
…
MR KIMMINS: Sorry. Could you just describe when you placed your right foot on the top step what part of the top step was your foot on?-- The very edge.
Okay?-- The very edge.
When your foot slipped from the step, what part of the step was your foot on?-- Very edge.
Now, did your left hand actually get to that handle on the left-----?-- I just – just hit it on the left. I just turned around, just hit it. That was when I slipped and then I tried to grab the door handle because that was the next thing that I had to grab.
You then fell to the roadway; is that correct?-- I fell on the roadway.
HIS HONOUR: So you’re saying you never actually got a grip on the left-hand handle, is that what you’re saying?-- No, I just touched it like that, your Honour.
So you’re indicating with your open left hand?-- Yes.
You’re indicating-----?-- the hand was open, it would have closed as soon as I got to it, but I just touched it and I lost my balance.
All right. Well, just so we have got it on the record in case somebody needs to read what’s been said at some stage, you touched the left hand handle with the palm of your left hand, but never completed the grip around the handle?-- That’s right.
…
MR KIMMINS: Mr Schmidt, just at the time when your right foot slipped, can you just describe what motion your right foot was adopting?-- Well, my right foot, as you can see, the heel is just – just over the edge.
Don’t worry about the photograph?-- I have to get it off and turn it inwards so I’ve got proper gripping. So I was actually twisting my right foot.
That’s bringing your toes in towards the vehicle?-- yes, so I was twisting to the left inward.” (emphasis added)
In cross-examination the plaintiff said there was one light in the door which came on when the door was opened. However, he said the edge of the step did not come out far enough to see from where he sat behind the wheel. He accepted he had driven everyday for the defendant for at least two months and had been doing this particular manoeuvre at least twice a day over this period. He also accepted that he had never previously had any difficulty in finding where the first step was. His evidence confirmed that he would move to the right and position himself on the seat to make it easier for him to put his right foot down. He accepted he did not blindly dangle his right foot out of the cabin hoping to find the step in the dark. The plaintiff said he was about 90 kilos at the time.[19] The care that he took in doing this was described in the following cross-examination:[20]
“And being a truck driver yourself, you know of the dangers of slipping on a step?-- Yes.
That’s why you take the care?-- That’s right.”
[19]According to the 23 July 2010 InterSafe report the plaintiff was 90-95kg at the time of the incident (see page 2, paragraph 2).
[20]T 1-28, ll 20-23.
Although the plaintiff accepted that when the door is closed the top two steps are shielded from the weather, he said the steps had got wet when he first came out. He also said the more time spent in getting out the more water comes into the cabin. The plaintiff was also conscious that his shoes were wet. In this context he explained what happened as follows:[21]
[21]T 1-29, l 56 to T 1-30, l 25.
“Because on one occasion you didn’t take enough care in getting out?-- I always took enough care. I always take the same care.
But on the evening in question when it had been raining you had been in and out of this truck safely five, six times without difficulty?-- About that, yeah.
But this last time you didn’t do it safely and your foot slipped and you fell out of the truck?-- That’s because all that water was in there.
You were aware that the water was there?-- Yes.
What was the extra feature about the water that made things difficult?-- Nothing until I slipped.
But you’d exited-----?-- When I twisted my foot I lost all, all grip on that step.
But when did you twist your feet?-- When I went – when I went from the wheel with my hand to grab the other handle behind me, right, at the same time you twist your foot to get more hold and it just came straight off.
And is the twisting of the foot language that you used? Twist or pivot, how could you describe what you did?-- Yeah, twist, pivot, call it what you like.” (emphasis added)
This issue was further investigated during the following cross-examination; commencing with reference to the outer edge of the top step:[22]
[22]T 1-40, l 46 to T1-41, l 16
“Now, that nonslip outer edge worked on the occasions that you got out of the truck on that evening, didn’t they?-- For the first couple of occasions, yes.
They had worked for the two and a half months or so you had been driving that particular truck?-- In the dry – in the dry, yes.
You had never driven a Volvo truck in wet wether before?-- I don’t know. It’s rained – it rained for quite a while then, so it – I might have done so, but that night when I did it I just came out just normal and I slipped and I tried to save myself with the door handle and that’s all that happened. I don’t know why I slipped.
You don’t know why you slipped?-- Well, I twisted my foot and grabbed the other handle and that’s when I lost it.
You’ve never said before, Mr Schmidt, that you twisted your foot. That’s a reconstruction on your behalf?-- You asked me whether I used the work ‘twisted’ or – you asked the word – is that the term you used, ‘twisted’ or what’s the name?
HIS HONOUR: Pivot?-- Pivot, that’s correct. I’ve said I’ve twisted my foot because that’s what I have to do.
MR O’DRISCOLL: That’s ordinarily what you do, but you have no recollection that this – the twisting of the foot caused you to slip on the evening in question, do you?-- I do.” (emphasis added)
The plaintiff said the reason he shifted to the right partially on the seat so that he could find where the first step was, held the right hand handle inside the cabin and had his left hand on the steering wheel was because he understood in the trucking industry it was important to have three points of contact. In relation to this his evidence was:[23]
[23]T 1-42, l 55 to T1-43, l 1
“… that’s why you were doing this on the evening in question?-- Yes. That’s why you did it all of the occasions that you got in and out of a truck?-- That’s right.”
In this context, the cross-examination continued as follows:[24]
[24]T 1-43, ll 15-38
“Okay. So the three previous occasions adopting your same method you had shifted across and were holding on to – right hand on to handle?-- Yes.
Left hand to steering wheel and at that stage you were still seated on the seat bearing some of your weight-----?-- Yes.
-----while you find with your right foot where that truck step is?-- Yes.
You don’t start to shift your weight, do you, until your right foot gets contact with that right step?-- That’s right. It’s right on the edge though.
Right on the edge. Right on the edge as shown in the photographs, I put to you?-- Yeah, but it’s dry in these photographs.
And it was wet at least on the two other occasions when you stopped on the evening in question, wasn’t it?-- Yeah.
Okay. So you got out of the truck on two occasions this evening with the steps being wet?-- Yes.”
The reference to the photographs are to those in the InterSafe report of 23 July 2010 and a further InterSafe report of 18 February 2011[25] demonstrating the method used by the plaintiff to exit the vehicle.
The plaintiff added:[26]
“the rain was that bad you’re trying to – you’re trying to hurry a little bit.” (emphasis added)
[25]This report which is Exhibit 3 was co-authored by Mr McDougall also of InterSafe. The evidence was that Mr McDougall also supervised the preparation of the 23 July 2010 report by Mr Dargusch, but did not sign it due to an oversight. He agreed with the opinions expressed in the earlier report (See T 2-67 ll32-35).
[26]T 1-43, ll 53-55.
The plaintiff said the reason he shifted on the seat was to get more reach because he was short.[27] He accepted that he had developed this technique to make it safer and easier for him. He agreed that when he placed his foot on the top step he knew he was about to twist and pivot to get out of the vehicle and it was important to get a fairly significant purchase on that step with his boot. This was because it was going to be bearing a lot of weight when he did this. The plaintiff also accepted he would ordinarily ensure that he got as much of his weight as he could on the first step. The cross-examination proceeded as follows:[28]
[27]According to the 23 July 2010 InterSafe report, the plaintiff was “5 feet 6 inches / 167cm” (see page 2, paragraph 2).
[28]T 1-45, ll 4-21.
“And ordinarily, as shown in the photographs, that’s how much of your foot that you get on to the step, isn’t it?-- Sort of, yes.
Not sort of, you were specifically doing that for the experts, weren’t you?-- But it was wet.
I accept that it’s wet. I’m not talking about it being wet. I’m just putting to you how much of your boot is ordinarily on that first step. So forget about it being wet?-- All right.
On this evening in question your foot was on the first purchase-----?-- Yes.
-----more on the step than not?-- About halfway – half of the boot.
I put to you more than three-quarters?-- No.” (emphasis added)
These questions were asked against the background of the answers he had given earlier in cross-examination with reference to the photo which is Figure 5 in the 23 July 2010 InterSafe report.[29] This cross-examination was as follows:[30]
[29]See page 6 of the report. The caption is “Mr Schmidt’s initial movement onto the top tread.”
[30]T 1-37, ll 5-28.
“And that’s ordinarily your initial move on to the top tread?-- That’s right.
And in relation to what’s shown you there, you’d accept that your foot is almost completely on the top step; isn’t it?-- No. Only my heel and most of the front of my foot is still off the step. My heel has got the most, the most grip on it at the moment.
So that photograph, you say, shows that most of your foot is, in fact, off the step rather than on?-- Well, at least half of it I’d say.
How about three quarters, Mr Schmidt, that’s a bit more accurate?-- Maybe.
Three quarters?-- Okay.
HIS HONOUR: Sorry, are you putting on or off the step?
MR O’DRISCOLL: On the step.
Three quarters of your foot is on the step?-- I wouldn’t say that. I’d say it’s less than three quarters.” (emphasis added)
The plaintiff also said:[31]
[31]T 1-45, ll 28-32.
“I had half a foot on the top of the step, I moved my body right over while I had a hand on the wheel and what’s the name. See, the seat doesn’t come down while the weight is on the seat, right? …” (emphasis added)
He accepted that at the time he put his right foot down on the top step he had four anchor points, with the other three being his hands on the handle on the right and the steering wheel, and his left foot on the cabin floor. He also accepted that he still ordinarily had four points of contact when he was pivoting and twisting.
The plaintiff subsequently accepted that on the basis of what I take to be the photograph which is Figure 13 to the 18 February 2011 InterSafe report[32] he had more than 75 percent of his foot on the step. The cross-examination then proceeded as follows:[33]
[32]See page 10 of the report.
[33]T 1-50, l 47 to T 1-52, l 18.
“As you twist and pivot, the majority of your foot remains on that step?-- Well, it doesn’t because you pivot on the front of your foot.
You pivot on the front of your foot?-- Yeah.
And as you turn and pivot you pivot with your heel kicking out?-- that’s right.
So as the photographs show, the front part of your foot remains on the step and you pivot out at the time this you’re holding on to then the right-hand handle in the cabin of the vehicle?-- Yeah.
And the left-hand handle?-- You’re trying, yeah, to get the left-hand handle, that’s right. Once you’ve’ got that left-hand handle you’re right, but I never got that left-hand handle that night.
Okay. You told us before that you hold on with your right hand and you hold on with the steering wheel and you’re essentially using the steering wheel?-- That’s correct, but you’ve got to let go of the steering wheel at one time or another to put that – your left hand on to that rail.
But ordinarily when you are placing your right foot on the first step you have right hand on the handle and left hand on the steering wheel?-- Yes.
And you feel now you don’t let go of the left hand until you can feel you’ve got purchase on that first step, do you?-- No, you have purchase on the first step, but when you’re putting your hand back there to get the other one, you’re also moving the left foot to get it into position to come out because when you come out you’ve got one – you can’t – the only step that you can put two feet on is the top one because as they go down they get smaller and you can’t put two feet side by side.
So you are pivoting the left foot out to put it on the top step?-- Pardon?
You’re putting the left foot out to put it on the top step?-- That’s right. It’s all one movement.
Okay. So – but when you are attempting to turn around you still have your hand on the left-hand side – the left hand on the steering wheel; don’t you?-- No, because you gotta get that on to the other handle. You can’t hold on to the wheel and still expect to grab that handle. So you virtually at one – at one small stage you end up with a two point thing and that’s got to be a balancing.
Now you slipped off the step?-- Yes.
And I put it to you, you don’t really know how you slipped off but your right foot slipped out?-- I slipped off, yes.” (emphasis added)
In re-examination, the plaintiff said that he had three points of contact but then at the time he twisted he had two points of contact.
As emerges from the cross-examination, although the plaintiff had earlier said he didn’t know why he slipped, he subsequently said when it was put to him that he didn’t know how he slipped off the step:[34]
[34]T 1-45, ll 57-58.
“I just slipped off the step because it was wet.” (emphasis added)
He said:[35]
“When I was pivoting, I just lost my footing and I tried to grab the handle beside me and the handle in the door and that’s all I remember. Once I hit the door handle, I just couldn’t grab it because it was just so wet.”
[35]T 1-46, ll 1-5.
It was put to the plaintiff that he never told Mr Dargusch that his ankle had turned and that is what caused him to slip. His response to this was:[36]
[36]Ibid, ll 53-56.
“Yes, I did. I said that’s how I always get out…”
When this was followed by the proposition that the plaintiff never put it in the context that turning his ankle going inverted or at an angle, is what caused him to slip, together with the proposition that he did not recollect that happening to him, he responded:[37]
“Well I do. I do, losing – I do losing my weight and when I slipped I tried to grab the door handle and after that I hit the tarmac. I don’t remember for a couple of seconds.”
[37]T 1-47, ll 3-6.
It was also put to him that his evidence his foot was on the very edge of the slippery part did not occur and he had no memory of this. He denied this. Although he accepted that he knew putting his foot here would be very dangerous.
The plaintiff said he had a clear recollection and memory of all the things that were occurring that evening. He conceded he had some difficulties with his memory since the incident. He complained of this at the Gympie Hospital on the date of the incident. And he had also sought assistance in September 2011 from Adult Mental Health concerning experiencing significant memory issues. However, he said he doesn’t forget what has happened as opposed to names.
The vehicle
As indicated the Volvo prime mover which the plaintiff was attempting to exit from at the time of the incident had a cab over engine configuration. The three steps providing entry to and egress from the cabin were located immediately behind the bumper bar and in front of the front wheels. As I have also stated, when the door was closed the top two steps were shielded from the weather. In the InterSafe reports the steps are referred to as treads and the three treads are referred to as the access system. As described in the 18 February 2011 report the three treads:[38]
“appear to be made from aluminium, with a rounded front edge and an array of openings in the tread. The treads are fitted to a structure comprised of plastic mouldings or claddings.”
Dr Grigg the principal of Forensic Engineering Consulting who gave evidence for the defendant described the treads as stainless steel.[39] A representative tread was an exhibit.[40]
[38]InterSafe report, 18 February 2011, page 4.
[39]Forensic Engineering Consulting report, 1 August 2011, page 5, paragraph 14.
[40]Exhibit 5.
The description in the 18 February 2011 report is consistent with the admitted allegations in the amended Statement of Claim at paragraphs 5(f)(v) and 5(g) which are set out in [8] above. It is noted the admission is that the first step was made from aluminium and had a rounded edge.
The 18 February 2011 InterSafe report and the 1 August 2011 Forensic Engineering Consulting report contain measurements of this vehicle. The floor of the cabin was measured to be approximately 1,585 mm above ground level.[41] The bottom step was 535 mm above ground level.[42] These measurements are taken from the Forensic Engineering Consulting report. They do not appear in the InterSafe report.
[41]Forensic Engineering Consulting report, 1 August 2011, page 2, first paragraph.
[42]Ibid.
Only the Forensic Engineering Consulting report contains measurements in relation to the handrails inside the cabin door. These are as follows:[43]
“It can also be seen in Photo 3 that there are substantial handrails inside the door opening at both the front and rear. The bottoms of these handrails are approximately 1,740mm above ground level. The top of the rear handrail is approximately 2,250mm above ground level and that of the front handrail is approximately 2,400mm above ground level. The door opens to a position that is approximately at right angles to the side of the cabin.”
This report also makes reference to the steering wheel providing a secure handhold when moved forward by the operation of a switch.[44]
[43]Ibid, fourth paragraph.
[44]Ibid, third paragraph.
The Forensic Engineering Consulting report also measures the top step to be approximately 360 mm below the floor of the cabin.[45] The measurement of this in the InterSafe report is 36.5 cm.[46]
[45]Ibid, first paragraph.
[46]InterSafe report, 18 February 2011, page 4.
According to the Forensic Engineering Consulting report other measurements taken of the access way are in close agreement with those appearing in the InterSafe report.[47] Accordingly, the balance of the measurements referred to in this judgment are taken from this report.[48]
[47]Forensic Engineering Consulting report, 1 August 2011, page 2, first paragraph.
[48]InterSafe report, 18 February 2011, pages 4-9.
The spacings between the top and second treads are 35.5 cm and 33.1 cm respectively.
The top tread dimensions are 48 cm at the back and 50.5 cm along the front edge. It was 19 cm wide. The second tread dimensions are 29 cm at the back and 34 cm along the front edge. Looking towards the vehicle it was 20.8 cm wide on the left and 19.5 cm wide on the right. The bottom tread dimensions are 28 cm at the back and 33.5 cm along the front edge. Looking towards the vehicle it is 23.5 cm wide on the left and 22.3 cm long on the right.
Viewing the treads by looking down from the cabin the offset of the top step which is visible was between 0.6 cm on the left and 4.4 cm on the right. Beneath this 3.6 cm of the second tread was visible beyond the edge of the top tread. And beneath the second tread the bottom tread was visible to the extent of between 4.3 cm on the left and 4 cm on the right.
The approximate angles formed by the access system were also measured as follows:[49]
[49]Ibid, page 17, paragraph 3.3.
(1)82o-89o between edge of cab opening and edge of top tread (Tread 1);
(2)82o-84o between edge of Tread 1 and edge of Tread 2; and
(3)82o-83o between edge of Tread 2 and edge of Tread 3.
Therefore the effective angle of the access system for a user was in the 80o-90o range.
Measurements were also taken of the dimensions of the rectangular and round openings with raised edges in the treads as well as the radius of the treads. These will be referred to where relevant to this judgment.[50]
[50]Ibid, pages 6 and 7.
The InterSafe reports
Three expert reports were admitted in evidence for the plaintiff. In addition to the reports to which reference has been made, an InterSafe report of 23 March 2012 was tendered.[51] Messrs Dargusch and McDougall were again the authors. As indicated although Mr McDougall is not stated to be an author of the 23 July 2010 report, this is an oversight only. Both authors also gave oral evidence.
[51]Exhibit 4.
Mr McDougall has a Bachelor of Mechanical Engineering degree attained from the University of Queensland in 1978.[52] Mr Kimmins on the plaintiff’s behalf placed particular emphasis on his role as fleet manager for the Shell Oil Company of Australia Ltd where he was accountable for 130 drivers. As set out in Exhibit 9 in this position he was responsible for driver training involving rearwards access and egress techniques using 3 functional points of support. This included addressing driver resistance when exiting Mercedes Benz vehicles with forward entry cab designs because drivers wanted to get out facing forwards. These vehicles were not greatly dissimilar to Volvo vehicles. The training involved teaching the drivers to rise from the seat and turn inside the cabin so they were facing rearwards and had three points of contact.[53] Reliance was also placed on his role with InterSafe in providing advice to various organisations as to appropriate methods to get in and out of various types of mobile machinery. This included training drivers that there are systems and procedures in place to ensure they use optimum techniques when getting out of, and on and off mobile equipment.[54] No issue was taken with his qualifications to speak in relation to the slip resistant qualities of metal.[55]
[52]His Curriculum Vitae is part of the two InterSafe reports on which his name appears. An attachment to this document was Exhibit 9. The attachment specifically related to his experience with vehicle access system design and driver training.
[53]T2-68 l 20 to T2-69 l 15.
[54]T2-69, ll 49-58.
[55]T 2-70 ll 24-27.
Mr Dargusch attained a Bachelor of Mechanical Engineering degree from the University of Queensland in 1999.[56] Mr Kimmins particularly placed emphasis on his evidence that his predominant role with InterSafe since 2008 was consulting with employers about appropriate access/egress systems for machinery. This involved advising them as to the need and manner in which to manage the risk of injury caused by persons using access systems on trucks. Part of this risk management approach involved training drivers as to the appropriate methods to access and egress vehicles.[57] In addition in 2000/2001 he was involved in the design and manufacture of access systems for road tanker trailers; and fuel tanks which were fitted to the side of prime movers and had aspects of access systems built into them. From 2001 to 2008 he was involved in the design and manufacture of access systems on fixed plant, in which the principles by which people moved up and down the system were the same as for mobile equipment.[58]
[56]His Curriculum Vitae is part of the three InterSafe reports. An attachment to this document is Exhibit 8 which addresses similar matters as Exhibit 9 in relation to Mr McDougall.
[57]T2-78, ll 14-30.
[58]T2-77, l 56 to T2-78, l 12; T2-79, ll 10-26.
The InterSafe reports of 23 July 2010 and 18 February 2011, despite some of the statements made in them, are not relied upon by Mr Kimmins on the issue of the causation of the incident itself, except in relation to the issue of the slip resistant qualities of the edge of the tread. Therefore I disregard any aspect in which an attempt is made in those documents to reconstruct how the incident occurred. With reference to the issue of the slip resistant qualities of the edge of the tread, this is a relevant matter on which the experts for both parties have commented. I make this point because much of the second day of the trial was occupied with argument about the admissibility of the content of these reports.
The InterSafe report of 23 March 2012 is relied upon in relation to Recommended Practice J185 on Access Systems for Off Road Machines from the US Society of Automotive Engineers, an extract from which is Attachment F to the Forensic Engineering Consulting report of 1 August 2011.
InterSafe report – 23 July 2010
I have already referred to those aspects of the 23 July 2010 InterSafe report which narrates the plaintiff’s description of the incident and his usual method of exiting the vehicle that he also employed at the time of the incident.
Following the plaintiff’s demonstration of the method used to exit the vehicle (including at the time of the incident) he demonstrated an alternative method of exiting the cabin under the guidance of Mr Dargusch.[59] In summary this involved him effectively turning to face into the cabin before commencing his descent while maintaining three points for support at all times.[60] This involved pivoting the body inside the cabin prior to moving onto the access system and making a backwards descent with three functional points of control being maintained at all times.
[59]InterSafe report, 23 July 2010, pages 8-10.
[60]Forensic Engineering Consulting report, 1 August 2011, page 4, paragraph 10.
Reference is made to a number of reports or records which demonstrate that falling while using access systems of trucks is an on-going problem.[61] These publications commence from 1980. The most recent report referred to is from the UK Health and Safety Executive in 2006 as to “The underlying causes of falls from vehicles associated with slip and trip hazards on steps and floors.” It noted that:
[61]This description is adopted from the Forensic Engineering Consulting Report, 1 August 2011, page 4, paragraph 11, as a convenient summary of the effect of these reports. Dr Grigg states here that this is recognised to be the case “despite efforts by manufacturers to improve the designs.”
“Vehicle ingress and egress was cited as one of the four most critical accident problems for the haulage industry. Slips and falls accounted for over 27% of all cases reported which resulted in lost workdays, second highest behind motor vehicle accidents. This study also revealed that there were three times as many egress accidents as ingress accidents.” (emphasis added)
As recognised by the Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000):
“Accessing Trucks
Getting in and out of a truck cabin, particularly larger trucks can be risky. Trips and slips can easily occur in wet weather or if hurrying. Access to many larger vehicles requires drivers to stretch or adopt awkward postures. Unnecessary bending, twisting and reaching should be avoided as much as possible.” (emphasis added)
Main risk factors in getting in and out of trucks are identified to include:
·Footholds and handholds may be slippery when wet or muddy due to smoothness of surfaces.
·Hidden/recessed steps – drivers unable to see the stairway.
Similarly the information from WorkSafe Victoria (2005) on “Prevention of Falls-Trucks” recognises that:
“Even for cabins below two metres it is common for drivers to injure themselves getting in and out of the cabin.”
Reference is also made to the Department of Employment, Training and Industrial Relations, 2000, “Risk Management Advisory Standard” which could be used to identify the risk of falling when using a truck access system. This lists the required steps for effective risk management as:
“1.Identify Hazards – based on experience, recorded data, or other information.
2.Assess Risks – by evaluating the level of risk to workers from the hazard.
3.Select Control Measures – from the control hierarchy (see below).
4.Implement – apply the control measures in the workplace.
5.Monitor – review the effectiveness of the controls.”
The hierarchy of controls mentioned in step 3 above describes measures that can be taken to control an identified risk. In order of preference, these are:
“1. Eliminate the risk of hazard
Or, if this is not possible; …
2. Substitute a less hazardous material, process or equipment;
3. Isolate the hazard (not an administrative isolation);
4.Minimise the hazard by engineering (redesign equipment or work process);
5.Apply administrative/procedural controls (requires a number of steps to be effective, including clear detailed procedures that are written down, training the workforce, supervision and enforcement);
6.Use personal protective equipment (PPE).” (emphasis added)
The standard also outlines the various hazard identification strategies which include considering:
“ Ÿ How people use equipment and materials;
ŸHow people could be hurt directly and indirectly by the various workplace aspects.”
The WorkSafe Victoria publication also requires that if there is a risk of a fall from height, a risk assessment must be undertaken of that task.
Because the effective angle of the access system for a user of the vehicle was in the 80o-90o range, this essentially vertical stairway exceeds the recommendations of general guidance documents referred to in the report. For example the Australian Standard AS 3868-1991, “Earth-Moving Machinery – Design Guide for Access” recommends avoiding the use of vertical (80o-90o) ladders. The authors of the InterSafe report state that the principles are much the same for mobile equipment, including trucks. While they accept that the access system on a truck generally always involves compromises from guidance documents to accommodate the constraints of vehicle design controlled by the manufacturer, it is said this reinforces the importance of understanding the associated risks and attempting to manage those risks. In their opinion much of the focus in management of risk should be in the “administrative/procedural” controls for the workforce who are using the system.
As this report states AS 3868-1991 recommends that in designing an access system consideration should be given to:
“Permit and encourage the user to have three functional points of support at all times, e.g. two feet and one hand, two hands and one foot.” (emphasis added)
The Shell Driver’s Handbook published in 1993 is given as a typical example of such encouragement to use the three point technique. It expressly requires the technique to be coupled with “a backward exit from the cabin”. It is said that one of the administrative controls readily accepted in the transport industry is aimed at training workers to always maintain three point support when using access systems.
More recently the Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000) provided, inter alia:
Risk factors Safe solutions for getting in and out of trucks Inappropriate technique Training in correct technique for getting in and out of a cabin safely. The three-point contact technique involves contact with at least three parts of a person’s four limbs with the vehicle at any one time.
The authors of the InterSafe report express the opinion that the alternative method of descent referred to in [42] above, represents a procedural or administrative control. According to them the method used by the plaintiff at the time of the incident was not a true backwards descent and was less than optimum whereas the alternative method was a true backwards descent which would reduce the risk of falling when using the access system. They state that for any such administrative control to be effective, it is necessary to:
· Clearly detail the access procedure for the particular piece of equipment;
· Document the procedure;
· Provide training in the procedure; and
· Enforce the procedure by providing appropriate supervision.
It is their experience that provision of the information and training requires a practical demonstration.
InterSafe report – 18 February 2011
I have already referred to the description and measurements of the vehicle in the 18 February 2011 InterSafe report. This report refers to another demonstration by the plaintiff of the method used for exiting the vehicle, at the time of the incident. On this occasion the vehicle was the actual vehicle involved. This demonstrated a variability of where his right foot was placed on the tread when he leant outside the vehicle.
The opinion is expressed that the design of the access system contributes to the opportunity for line contact of the foot with the edge of the tread rather than area contact with the tread. It is said that area contact is preferable.
The report observes that the series of rectangular and round openings with raised edges in the treads have a two-fold purpose:
(1) to provide opportunities for interlocking of the shoe with the edges; and
(2) to allow materials such as mud, dirt and water to fall through the openings.
Reference is made to the 2006 report of the UK Health and Safety Executive which noted:[62]
“Cab steps are generally of a profiled design, which gives the possibility of a physical interlock with the cleats of the driver’s shoe. However this is very difficult to predict because the design of the cleats on shoe soles vary, in layout, dimensions and depth.”
While due to the geometry of the step of the vehicle from which the plaintiff fell, the authors of the InterSafe report were unable to measure the slip resistance of the smooth aluminium material of the step in wet conditions, they express the opinion that smooth steel or aluminium surfaces provide poor slip resistance in wet conditions as there are no textures or roughness to provide grip underfoot. InterSafe had previously measured the slip resistance (coefficient of friction) on wet unpainted steel plate using the Australian Standard for slip resistance on pedestrian surfaces at approximately 0.25. This Standard specifies a minimum slip coefficient of friction of 0.4 to control the risk of slipping on level surfaces during normal pedestrian movements. More recent Australian and New Zealand standards for slip resistant classification of new pedestrian surface materials specify a requirement for increased friction of greater than 0.47 in other situations, such as step nosings recognising the increased friction needs for users in these areas.
[62]InterSafe Report, 18 February 2011, page 13.
The radius of the smooth radiused front edge of the top tread was measured as approximately 8-10 mm. It is said that if a foot is placed in this area during descent, it relies on friction between the shoe and the smooth radiused area to resist the weight of the person descending and prevent a slip on the surface. Further it is said that the radiused nosing edge allows for the foot to pivot or roll over the edge as the descent continues. This is illustrated by a diagram of a shoe rolling over the radiused edge, contacting only the smooth aluminium surface. This is a diagram which is severely criticised by Dr Grigg in the 5 April 2012 Forensic Engineering Consulting report.
The authors of the report recommend two relatively low cost ways of modifying the nose region of the step to reduce the risk of slipping from this region. One is what is described as a bolt-on aggressive nosing design providing a degree of interlocking with the shoe sole. The other is using commercially available nosing strips or ladder rung covers. It is said that such covers or strips provide a square rather than rounded edge for increased slip resistance.
The report concludes with reference to the importance of having an understanding of the risks associated with a compromised access system and attempting to manage them. The opinion is expressed that the risks could have been managed in this case by:
(1) Implementing procedural controls to provide a true backwards descent, providing area rather than line contact of the foot and three functional points of control at all times.
(2) Provision of increased slip resistance at the nosing edges of the tread in the recommended manner.
InterSafe report – 23 March 2012
As indicated the 23 March 2012 InterSafe report is relied on in relation to Recommended Practice J185 on Access Systems for Off Road Machines. The authors refer to a section of this document which does not appear in the extract which is Attachment F to the 1 August 2011 Forensic Engineering Consulting report. It is as follows:
“4.7Step, walkway and platform surfaces (including any machine or tool structural component used as part of an access system) as a minimum shall be slip resistant at the foot contact areas.” (emphasis added)
Mr McDougall’s evidence
Mr McDougall said that the reference in the reports to “line contact” was to “a single line of contact, only or contact with an edge on the step and a line along the shoe.”[63]
[63]T2-70, ll 11-12.
He was cross-examined about the diagram referred to in [51] above, of the shoe rolling over the radiused edge, contacting only the smooth aluminium surface. He accepted this showed the shoe at an angled contact of something in the range of 30 to 45 degrees.[64] He denied that if a person’s leg had been in the position illustrated in the diagram the person must have already fallen out of the cabin.[65] However he agreed that if a person’s body went into the boot as depicted the rest of the body would be at the same angle as shown in the shoe unless there was a significant ankle inversion. He had not done any studies or testing as to the inversion capabilities of the plaintiff’s ankle, including with the footwear he was wearing at the time of the fall.[66] He said that the purpose of the diagram was to illustrate that on this configuration the interlocking between the radiused nose edging of the step and the underside of the boot worn by a person may not come into contact and thereby increase the likelihood of slipping.[67] His evidence was that it was more illustrative than to indicate a precise angle.[68] He denied he was attempting to put the shoe into a particular configuration without any evidential foundation to show there was no interlocking between boot and step as it was designed to do.[69]
[64]T2-71, ll 14-20.
[65]T2-71, ll 42-48; T2-72, ll 9-12.
[66]T2-72, ll 1-7.
[67]T2-71, ll 21-31.
[68]T2-72, ll 18-21.
[69]Ibid, ll 30-36.
Mr McDougall, illustrated using his shoe on the vehicle tread (Exhibit 5) that the further a person gets to the edge, the lower the friction and potential for interlocking will be.[70] In relation to this he accepted that in addition to not testing the coefficient of friction on the edge because it was impossible to do so, the friction and the degree of interlocking on the holes along the edge were not tested.[71]
[70]T2-72; l 44 to T2-73, l 1.
[71]T2-73, ll 3-7.
Mr McDougall also accepted that the construction of the Volvo steps provided good interfacing for a person who was up on the horizontal part of the tread but reducing the further the person got around the edge.[72] He accepted it depends on where the foot is positioned.[73] These propositions are best understood in the context of the following cross-examination, during which he continued to illustrate his answers by positioning his shoe on the top of the witness box:[74]
[72]T2-73, ll 55 to T2-74, l 3.
[73]T2-76, ll 22-23.
[74]T2-74, l 20 to T2-76, l 23.
“Well, the degree of traction or the interface on the Volvo step that you’ve just seen before provides sufficient traction for a person entering to or egressing from the cabin as long as his foot is located on those aspects of it?-- As long as his foot is located on the horizontal surface and away from the edge, then, yes, they provide high levels of traction and are highly unlikely to slip.
And doesn’t step crab like out of the cabin so that his foot is at an inverted angle that it just catches that aluminium edge on the corner of the step that’s slippery?-- That’s correct.
In the circumstances of this case, if the Court accepts that the plaintiff shifted on his seat to ascertain the first step and placed his foot – and planted his foot within the confines of the interface area of the step and then gets his right hand on the handle and the left hand on the wheel and twists to face backwards and then holds the left hand and then goes down, that’s an effective three point exiting of a vehicle?-- You’ve asked multiple questions there, but let me try to address the aspects of them. If he was able to get his foot down on to the horizontal surface such that the majority of the ball of his foot, in other words, there’s an area contact on the top horizontal surface, then he would be highly unlikely to slip.
As I have indicated this duty included not only a duty to establish and to train and instruct its drivers in such a safe system of work but to ensure it was implemented by enforcing it, such as by providing appropriate supervision. As Fryberg J said in Reck “Training to perform an action requires more than issuing warnings and giving commands. It requires the employer to demonstrate and explain the action, and then for the employee to practice it until it becomes automatic”.[273]
[273]See [140] of this judgment.
However as Mr Sanders confirmed, in January 2008 there was no system in place at the defendant’s Brisbane Depot to ensure drivers exited the cabins of the Volvo prime mover vehicles in the manner proposed in the 23 July 2010 InterSafe report, which was in fact the manner he personally used to exit the cabins of those vehicles.[274]
[274]Ibid [66].
While recognising that the issue of whether the duty of care has been breached is to be judged prospectively, the fact that subsequently to the plaintiff’s injury a sticker had been attached to all trucks stating three points of contact, and as part of the national heavy vehicle accreditation requirements there was now a policy that new drivers are told about a safe system of getting in and out of vehicles, involving getting out of vehicles backwards and using three points of contact, demonstrates that at the time of the plaintiff’s injury their existed a simple, practical, convenient and inexpensive way of taking action to alleviate the risks.
Because of the reliance placed on the statements by the courts in Williams to support the argument that the defendant provided a safe system of work and therefore had not breached its duty of care I set out the reasons why I consider the case is indistinguishable from the present circumstances. Unlike Williams, where it was held that there were no circumstances which made a specific warning or special training necessary as to the way for employees to safely alight from a truck in order to avoid the risk of unnecessary injury, in the present case the particular method of safely exiting the vehicle was not a matter of commonsense which could be reasonably be left to an individual employee; the process of exiting the vehicles was not akin to alighting from a Toyota Landcruiser;[275] there were not a number of ways that getting out of the vehicle could be done safely;[276] and this is not a case in which the plaintiff does not significantly, contend that there was anything defective about the step, or that there was slippery material on it.[277]
[275]In Williams the appellant described the process of getting out of the truck as akin to alighting from his own Toyota Landcruiser. In that case the distance between the seat of the vehicle and the ground was 110 cm. See [2000] QSC 161 at [8] and [11]; [2001] QCA 101 at [9]. In the present case the equivalent distance was 1,585 mm (see [27]). At [2000] QSC 161 at [11] de Jersey J considered it difficult to see why, what was, akin to jumping down two ordinary steps would impose unreasonable force on the body.
[276]In accordance with my finding in the present case, this is not a case where that an employee driving a Volvo prime mover can adopt a number of ways to safely exit the cabin. The evidence is there is only one safe method. It is not a case of just leaving it to an employee to find a safe method.
[277]See [217] to [220] of this judgment.
I also do not agree with the manner in which the defendant seeks to distinguish Reck at [171] and [172] above. Although as Mr O’Driscoll argues the plaintiff knew that the remedy to any risk involved in exiting the cabin was three point contact which the plaintiff was embarking on, he also recognised that the method postulated by the plaintiff of safely exiting the cabin had the additional feature of turning inside the cabin before commencing the backwards descent. Further as I have found the plaintiff was not embarking on a true backwards descent. It is in this sense that just as the remedy had not been obvious in Reck it was not obvious in this case.
In addition as I have indicated I consider a reasonable employer would have responded to the degree of risk by implementing increased slip resistance of the nosing of the tread.
I have found, the nosing edge of the top tread cannot be considered slip resistant in wet conditions. Dr Grigg agreed that the rounded nose region of the tread is not slip resistant when wet. The defendant must have been aware of this particularly when this consequence could have been accentuated by knowledge of the angle of the steps, the small amount of tread set off from the cabin to the first step and the distance between the cabin floor and that step.
Although Dr Grigg observes that the access system complies with the US Department of Transportation requirements and the European Directive[278] it is relevant that the former includes a requirement that “Each step … shall be of a slip resistant design”[279] and the Directive stated that “The upper surface of the steps shall be non-slip”.[280] Dr Grigg also refers to US Society of Automotive Engineers Recommended Practice J 185, which states that step surfaces as a minimum shall be slip resistant at foot contact areas.[281] Further the Australian Standard AS 3868-1991 relating to earth moving machinery contains a guideline that “The tread surfaces and the leading edges of the steps should be slip resistant along and across the tread, at all foot contact points”.[282]
[278]See [83] of this judgment.
[279]Ibid [73].
[280]Ibid.
[281]Ibid; see also [54].
[282]Ibid.
I am satisfied that increased slip resistance at the nosing edges of the tread to alleviate the risk of injury could have been achieved easily, inexpensively and without inconvenience by modifying the region to reduce the risk of injury in either of the two ways recommended in the 18 February 2011 InterSafe report. These were described as relatively low cost, and are as follows:[283]
[283]Ibid [52].
· bolt on aggressive nosing design;
· commercially available nosing strips or rung ladder covers.
Dr Griggs accepts that these suggested methods of modifying the nose region of the step treads would be likely to reduce the risk of slipping from the region.[284] Although he expresses concern that the former design, in particular, could result in injuries due to leg contact in other circumstances, it is not apparent that the second design could cause this result. Further he accepts that the former response will achieve the aim of reduced risk of injury from slipping off the step treads.
[284]Ibid [81].
Accordingly I find persuasive evidence that those precautions above which were practical, easy, inexpensive and convenient to implement and were likely to afford an employee such as the plaintiff an appreciable degree of protection from the risk of falling. In my view it has been established that it was unreasonable of the defendant not to have taken these precautions. In these circumstances a safe system of work was not provided.
In my view the principle expressed in Davie v New Merton Boards Mills Ltd that in general an employer will discharge its obligations of providing proper plant and equipment to its employees by showing it bought appropriate equipment from a reputable manufacturer or supplier is inapplicable because in this case any inspection made by a reasonable employer would have revealed the defect to the top step on which the plaintiff slipped.
This defect was that, as agreed by Dr Grigg the rounded nose region of the step was not slip resistant when wet. As I have found, the defendant through Mr Sanders who was aware of the rounded edge of the step, must have been aware of this and that the risk drivers falling from the top step will be increased when the door is opened to exit the vehicle in wet weather.[285] Because this nosing edge of the treads of the top step was not slip resistant it did not comply with the requirements, directives and guidelines identified in [214] above.
[285]See discussion at [187].
Further despite Dr Grigg’s opinion that the access configuration of the Volvo prime mover is amongst the best he has seen and when used with due care provides a safe method of entering in excessing the cabin, I consider the evidence demonstrated short comings in the design of the vehicle. In addition to the smooth rounded edge of the top step, these involved the angle of the steps, the small amount of tread offset from the cabin to the top step and the distance between the cabin floor and the top step.
Accordingly I consider that there was a defect to the access system of the vehicle which was not hidden, unusual or unexpected but should have been obvious to the defendant.
For this reason I do not accept the defendant’s submission that this defect was not readily ascertainable upon reasonable inspection and reasonable use of the vehicle. Therefore the defendant did not discharge its obligation to take reasonable care by the purchase of the Volvo truck. This also answers the defendant’s argument that the issue of reasonableness of training and instruction only arises for consideration if the defendant had knowledge there was a defect in the system of access and egress to and from the cabin.
I therefore find on the balance of probabilities that the defendant breached his duty of care to the plaintiff by failing to provide a safe system of work.
I am also satisfied on the balance of probabilities that the defendant’s negligence in omitting to do so caused or materially contributed to the plaintiff’s injury because if it had performed its duty to provide the safeguards I have identified this would have adverted the harm.
In particular it is unlikely that the plaintiff’s foot would have slipped off the edge of the top step with its poor slip resistant qualities in wet weather, if he had been instructed in the method of exiting the cabin by turning inside it before using a true backwards descent while maintaining three points of contact at all times as proposed in the 23 July 2010 InterSafe report and also if the nosing of the tread then had the increased slip resistance recommended in the 18 February 2011 InterSafe report. The former proposition is supported by Mr Sanders’ evidence that he had never slipped when using this method to exit the cabin, even in wet conditions.
I disagree with the defendant’s submission that the alternative system advanced on behalf of the plaintiff would not make any difference because this method still provided the opportunity for him to come within the dangerous area of the step and because of the non slip area at the top of the cabin. To the contrary I consider that this method would ensure that when the plaintiff stepped from the cabin on to the top step he would be holding onto both handrails and have three functional points of contact. This true backwards descent would also avoid the plaintiff needing to twist or pivot his foot with the risk it would make line contact with the edge of the step in circumstances where it was weight bearing.
In Lusk Margaret Wilson AJA said it was for the plaintiff to prove that he would have used the safety measure which would have avoided the occurrence of the injury. Mr O’Driscoll submits that there should have been evidence of this in the present case. However as her Honour also observed in general it would be easy to draw this inference, that being the course which a reasonable person mindful of his own safety would take.[286] I have no hesitation in drawing this inference in the present case. As was the case in Reck there is no suggestion that the plaintiff was a disobedient employee and no reason to think that he would not have followed an instruction given to him. As Fryberg J said:[287]
“Even if he ought to have appreciated the danger of falling, the fact that he still exited the cabin in a dangerous manner does not prove the contrary.”
The fact is in this case Mr Sanders did not believe that there was any formal instruction system in place for new drivers concerning how to access or egress from a truck at the time of the plaintiff’s fall.[288] And there was no system in place at the defendant’s Brisbane Depot at that time to ensure drivers exited the cabins of the Volvo prime mover vehicles in the manner proposed in the 23 July 2010 InterSafe report.
[286]See [145] of this judgment.
[287]Ibid [140].
[288]Ibid [64].
In addition as was said in McLean v Tedman[289] there is no onus on the plaintiff to prove specifically that the alternative system was acceptable to employees and they would have carried it into effect. Because the plaintiff has been able to point to an alternative and safe system which is practicable and would have obviated the risk of injury, it was for the defendant to establish that it would have been unable to enforce compliance with this system because its implementation would have been resisted by employees.
[289]Ibid [132].
I am therefore satisfied on the balance of probabilities that the proposed safety measures would have been effective and the plaintiff would have made use of them had they been available to him.
Conclusion
For these reasons I find the plaintiff’s injuries were caused by the negligence of the defendant by its servants and agents.
Order
The defendant is to pay to the plaintiff the sum of $225,000 clear of the WorkCover Queensland refund as damages for personal injuries and consequential loss arising as a result of the negligence of the defendant by it servants or agents.
I will hear from the parties if necessary in respect of interest and costs.
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