Southern Colour (Vic) Pty Ltd v Parr
[2017] VSCA 301
•20 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0047
| SOUTHERN COLOUR (VIC) PTY LTD | Applicant |
| v | |
| MICHAEL PARR | First Respondent |
| and | |
| KNIGHT FRANK (VIC) PTY LTD | Second Respondent |
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| JUDGES: | SANTAMARIA, KAYE and ASHLEY JJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | 11 October 2017 | |
| DATE OF JUDGMENT: | 20 October 2017 | |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 301 | 1ST Revision: 25 October 2017 Appearances |
| JUDGMENT APPEALED FROM: | [2017] VCC 337 (Judge Carmody) | |
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NEGLIGENCE – Duty of care – Breach of employer’s duty of care – Breach of occupier’s duty of care – Employee injured when preparing to climb fence to gain access to work premises – Concealed pit at base of fence – Whether trial judge correctly identified the relevant risk of injury – Whether trial judge provided sufficient analysis of content of duty of care – Whether breach determined prospectively by trial judge – No error – Appeal dismissed – Wrongs Act 1958 s 14B – Wyong Shire Council v Shirt (1980) 146 CLR 40.
APPEAL – Whether findings of fact should be disturbed on appeal – Where findings based on inference as distinct from findings of primary fact – Relationship between finding of primary fact and drawing of conclusion or inference – No error.
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| APPEARANCES: | Counsel | Solicitors |
Applicant | Mr M F Wheelahan QC with Mr S Gladman | Minter Ellison |
| First Respondent | Mr J Ruskin QC with Ms C Spitaleri | Ryan Carlisle Thomas |
| Second Respondent | No appearance |
SANTAMARIA JA
ASHLEY JA
KAYE JA:
On 14 January 2006, the first respondent, Mr Michael Parr (‘Mr Parr’), suffered injury in the course of his employment with the applicant, Southern Colour (Vic) Pty Ltd (‘Southern Colour’), when he fell while preparing to scale a fence in order to gain access to the factory leased by Southern Colour in South Park Close, Keysborough.
Mr Parr commenced proceedings claiming damages against Southern Colour, on the basis that it had breached the duties that it owed to him both as his employer and as occupier. He also claimed damages against National Mutual Life Nominees Pty Ltd (‘National Mutual’), the owner of the premises, and the managing agent of the premises, the second respondent, Knight Frank (Vic) Pty Ltd (‘Knight Frank’), on the basis that they had each breached the duty of care they owed to him as occupiers of the premises. Before the commencement of the trial of the proceeding, Mr Parr settled his claim against National Mutual and Knight Frank. As a result, the trial concerned two related proceedings, namely, the plaintiff’s claim against Southern Colour, and that company’s claim for contribution against Knight Frank.
The trial proceeded before a judge of the County Court. In a reserved decision, the judge concluded that Southern Colour had breached the duties that it owed to Mr Parr both as his employer, and as the occupier of the premises, and that Knight Frank had also breached the duty of care that it owed to Mr Parr as occupier of the premises. The judge awarded Mr Parr damages in the sum of $571,379.50, and, in respect of the contribution proceedings, apportioned liability as 75% to Southern Colour and 25% to Knight Frank.[1] The applicant, Southern Colour, seeks leave to appeal against the judgment on two proposed grounds, both of which are directed to the issue of liability.
[1]Parr v Southern Colour (Vic) Pty Ltd [2017] VCC 337 (‘Reasons’).
The circumstances
In 1998, Southern Colour commenced to operate a printing factory from the premises at South Park Close. Mr Parr, who was born in September 1962, was employed by Southern Colour at those premises as a printer’s assistant between January 2004 and December 2007.
The accident occurred outside the south-eastern corner of the factory. The pedestrian entrance to the factory was located on the southern side of the premises, and there was a car park outside that entrance that was accessible to vehicles that travelled along South Park Close having entered from Springvale Road. In addition, there was another car park to the east of the factory, but it was not part of the premises. That car park was accessible to vehicles from Cheltenham Road. It could be accessed from inside the factory via the bindery door in the eastern wall of the factory. That door could not be opened from outside the factory.
Outside the factory, there was a two metre wide strip on the premises which ran adjacent to the eastern wall of the factory, and which was part of the premises occupied by Southern Colour. It contained cooling equipment and a garden bed with some trees, plants and shrubs planted in it. The garden bed was covered with some mulch. At the southern end of the garden bed, there was a 1.8 metre high fence connected to the south-east corner of the factory which extended for a short distance east of that point. It thus blocked direct access being gained from the eastern car park to the southern car park, or to the southern entrance to the factory.
At about midday, on the day of the accident, 14 January 2006, Mr Parr, and a co-worker, Mr Wayne Dalgleish, drove by motor vehicle to Dingley in order to collect their lunch. On their return, they were unable to gain access to the southern car park, because a motor vehicle accident had resulted in the closure of Springvale Road at that point. Accordingly, Mr Dalgleish drove his vehicle to the eastern car park where he parked it. Mr Parr and Mr Dalgleish then knocked on the closed bindery door, but there was no response. As a result, Mr Parr told Mr Dalgleish that he would climb over the fence, enter the factory using his swipe card, and open the bindery door for him.
Mr Parr walked along the garden bed to the fence, and prepared to climb over it. However, as he did so, his left foot went through a piece of chipboard, that was covered with some vegetation matter. The chipboard covered a drainage pit underneath it, which was located at the foot of the fence, about 45 metres from the bindery door. The pit was about 900 millimetres long and 600 millimetres wide, and it was approximately one metre deep. As Mr Parr fell, his left leg went into the hole, but his right leg stayed outside it. As a consequence of the fall, he hit his lower back, middle back and then his neck.
Mr Parr gave evidence that he had climbed over the fence on approximately six occasions in the two years before the accident, but he had not noticed the chipboard, and there was nothing which made him think that the ground in the area was unstable or unsafe. Mr Dalgleish gave evidence that he also had climbed over the fence on three or four previous occasions during the five years before the accident. Mr Parr, in his evidence, stated that he had often seen fellow employees also climbing over the fence. He said ‘everybody used to jump that fence that went to the kiosk if they couldn’t get back into the bindery for years’. As a consequence, the judge found, as a fact, that the management of Southern Colour was aware that its workers, on occasion, did climb over the fence in order to be able to return to work at the factory. At trial, Mr Parr did not allege that Southern Colour had actual knowledge about the existence of the drainage pit, or the fact that it was inadequately covered, but he alleged that if it had properly inspected and maintained the garden bed in the rear of the fence, it would have become aware of, and replaced, the chipboard cover over the pit. In that respect, the evidence revealed that, shortly after the accident, at Southern Colour’s request, Knight Frank arranged for a concrete cover to be installed over the drainage pit, at a total cost of $1,078.
In essence, the judge accepted the submissions made on behalf of the applicant. His Honour found that the relevant risk, against which Southern Colour had a duty to exercise reasonable care, was a risk of injury to its employees in seeking to safely access their place of employment in the circumstances of the case. The judge concluded that, in light of the knowledge by Southern Colour that its employees climbed the fence to gain such access, it had a duty to inspect and maintain the garden bed in the area of the fence, and that it had failed to discharge those duties. His Honour further found that if such inspection and maintenance had been conducted by Southern Colour, it would have revealed that the cover to the pit, near the fence, was unsafe, and it would have replaced it.
The evidence
As the issues on this application are substantially narrower than the issues at trial, it is only necessary to summarise, relatively briefly, the evidence that is relevant to them.
In his evidence in chief, Mr Parr stated that the kiosk, which was accessed by employees of the factory through the bindery door, was very popular. As noted, he said that ‘everybody’, who went to the kiosk, used to jump the fence. He stated that he himself had climbed the fence on perhaps half a dozen occasions during the previous four years, and he had seen other employees of Southern Colour do so also. He said that, on the day of the accident, he prepared to climb the fence at the point closest to the factory wall, because it was strongest at that point. After he had fallen into the pit, he noticed a piece of chipboard which apparently had covered it. He said that at that point the surface of the ground consisted of ‘the normal leaves that I could see pretty much consistent with all the way along the back’. He had not previously seen the chipboard and he did not know it was there.
In cross-examination, Mr Parr stated that, although the eastern car park was not connected to the business of Southern Colour, nevertheless some of the employees of Southern Colour used to park their vehicles in it. He disagreed with the proposition, put in cross-examination, that the bindery door was not intended for ‘normal use’. He said that it was normally used at lunch time when people went to the shop. He again reiterated that he had climbed over the fence a few times previously when he had returned from lunch, and that other employees had also done so. He disagreed that he had only previously climbed over the fence on a Saturday or a Sunday, and he disagreed with the proposition that, if one of the bosses had seen him going over the fence, they would have stopped him. He said that, because he was running a $12,000,000 print machine that was ‘worth a fortune every minute it was not running’, his intention was to get back inside the factory to restart the machine. Mr Parr agreed that, on each previous occasion on which he had climbed the fence, he had had no difficulty in doing so, and he was not aware that the chipboard was in place at the point at which he commenced to climb it. He agreed that he had not seen anything at that point that made him consider that there would be any problem with the ground from which he was climbing. He said that there was garden mulch material along the garden bed from the bindery door to the fence line, although there was less outside the bindery door. Mr Parr stated that the ground under the mulch looked like ‘hard clay’. He said that if he scuffed his feet on the ground, the mulch was only about ‘an inch deep’ before his foot would touch the clay.
Mr Wayne Dalgleish gave evidence on behalf of Mr Parr. He commenced employment with Southern Colour in 1998 as a qualified plumber. Mr Dalgleish stated that an extension to the southern part of the factory was constructed after 2000, and that, before then, there was no fence at the end of the original factory. After the factory was extended, a fence was constructed from the south-east corner of the factory and along the north-south boundary, enclosing the southern car park of the premises.
Mr Dalgleish stated that, during the time in which he was working for Southern Colour, he, and fellow employees, would commonly use the bindery door to access the rear (eastern) car park to go to lunch, and that when they returned, they would park in that car park, in order to facilitate their access to Cheltenham Road and thus shorten their trip home. He said that the bindery door was also used by employees of Southern Colour to exit the premises in order to service the cooling tower for the machinery. In addition, workers used to go there to have a cigarette. During the summer time, the door was kept open all day in order to ventilate the factory.
Mr Dalgleish stated that, before the accident in question, he had seen Mr Parr jump the fence ‘probably twice’, and that he himself had jumped the fence about three to four times. In addition, he had seen other workers jump the fence, but not so often, because they did not all go out at the same time.
Mr Dalgleish stated that, on the day of the accident, after Mr Parr and he had returned from purchasing their lunch, they needed to use the eastern car park, because there had been a major motor vehicle accident on Springvale Road. When they knocked on the bindery door, there was no response. Accordingly, Mr Parr went to jump the fence. As he did so, he called out to Mr Dalgleish. In response, Mr Dalgleish ran up to where he was, and found that he was in a hole, with his right leg protruding. Mr Dalgleish noted that Mr Parr had gone through a piece of chipboard. He described that board as being ‘pretty old and faded’, and it was probably the same colour as the surrounding dirt. He said the chipboard looked familiar, because Southern Colour used to get similar boards on top of its stock, and which protected the contents of the pallet. He described the chipboard as a ‘pallet top’. He said that the chipboard was about one centimetre thick, and that it had about an inch and a half or two inches of tan bark over it.
In cross-examination, Mr Dalgleish stated that, before the factory extension had been constructed, he used to park in the eastern car park, because it provided an easier exit from the premises at the end of the working day. He said that, in 2006, the other factories, serviced by the car park, were vacant. Accordingly, employees of Southern Colour were able to use the car park. When asked if it was less convenient to use it because of the restricted access to it, Mr Dalgleish replied:
I wouldn’t say that because we still parked there after lunch and still went in the back door.
Mr Dalgleish said that the area along the eastern wall of Southern Colour’s factory was a garden bed containing some small shrubs, and it was covered by tan bark. He said that the piece of chipboard over the pit was camouflaged by leaves and bark on the ground, and that he himself did not know that it was there before the accident.
Mr Ian Leckie, who was the Business Improvement Manager of Southern Colour between 2004 and 2007, also gave evidence on behalf of Mr Parr. When Mr Leckie commenced employment with Southern Colour, the renovations to the factory had been completed. Mr Leckie was in charge of occupational health and safety matters as part of his duties with Southern Colour.
Mr Leckie confirmed that the bindery door used to be left open during the summer in order to allow fresh air to enter. He said that most of the members of the staff used the bindery door for access during lunch time to go to the shops, which were located at the rear of the business’ estate. He also said that some of the staff parked their vehicles in the eastern car park, because it provided easier access to the adjoining roadway when they left the premises.
After Mr Leckie was informed of Mr Parr’s accident, he inspected the hole in which Mr Parr had fallen. He noted that there was no concrete lid over the hole. Rather, there was a piece of timber with debris over it, and there was a hole through the middle of it. He said that the timber was chipboard, and, because it had been left outside, it was grey, so that its colour blended with the earth.
In cross-examination, Mr Leckie agreed that he had attended an occupational health and safety meeting of Southern Colour on 28 February 2006. He confirmed that item 7 in the record of the meeting, made by him, stated as follows:
Stormwater manhole (located near fence).
The cover is a piece of chipboard which is hidden by soil etc and recently broke when someone stepped on it. Needs to be replaced with a concrete slab before there is a serious injury.
Mr Priyanth De Silva gave evidence on behalf of Southern Colour. His evidence was principally directed to the issue of contribution between Southern Colour and Knight Frank. Mr De Silva was the accountant and office manager of Southern Colour at the relevant time, having commenced employment with Southern Colour in 2001. He said that he ordinarily dealt with Knight Frank on day-to-day matters such as garden maintenance. When an issue arose, he would contact Jonathan Lumsden of Knight Frank. He himself did not give directions or instructions to gardeners or maintenance people. On one occasion, he requested Knight Frank to remove a lot of dead tree branches in the same area along the back of the factory, because it was a potential fire hazard. He said that, after he was informed of Mr Parr’s accident, he contacted Mr Lumsden, and asked him to put ‘some sort of concrete or something there’.
In cross-examination, Mr De Silva stated that, after he heard of Mr Parr’s accident, he inspected the location, and saw a ‘timber type thing’ there, and a hole, but that there was not a proper concrete cover over it. He said ‘… you can see that it wasn’t a proper job at the time’.
Mr De Silva stated that he had previously been out to the back area from time to time, and when he did so, he had a quick look, doing a ‘site evaluation’. He said that he would just open the door and have a quick look, but he would not wander around the area. Mr De Silva said that he had never parked at the back of the premises, and he was not aware that some of the workers did so. He was not aware that employees of Southern Colour had jumped the fence between the eastern car park and the southern car park. Mr De Silva agreed that, during hot weather, the bindery door would be left open in order to ventilate the premises. As a result, in 2002, Mr De Silva had organised that the alarm security company disarm the alarm on that door so that people could open it.
Mr Jonathon Lumsden was called to give evidence on behalf of Knight Frank. Mr Lumsden was first employed by Knight Frank in 2002, and he took over management of the portfolio of property, which included the factory premises, in 2004.
Mr Lumsden stated that, when he took over the relevant portfolio, he inspected the property, but he did not inspect that part of it that was immediately adjacent to the eastern wall of the Southern Colour factory. He said that it was not ‘visible’. He said that his inspections of the property would include walking around it, and he would also do a random drive within the property to cast an eye over it. Mr Lumsden stated that he was never aware that employees of Southern Colour parked their vehicles in the eastern car park. Before Mr Parr’s accident, he was not aware of the existence of the drainage pit outside the south-east corner of the factory.
Mr Lumsden stated that he organised gardeners to carry out maintenance work at the property. That work involved mowing the grassed areas and maintaining the garden beds, but it did not include attending to the garden bed area east of the factory where Mr Parr was injured.
Mr Lumsden stated that he was notified of Mr Parr’s accident by Mr De Silva. He was told that an employee of Southern Colour had an accident when a lid caved in over a pit at the rear of the property. Accordingly, Mr Lumsden organised a contractor to attend the site to inspect it and make it safe. Mr Lumsden said that he was not aware that employees of Southern Colour had been using an external door on the east wall of the premises to gain access to, and to exit, the factory. Nor was he aware that there were occasions when employees of Southern Colour would climb the fence at the south-eastern corner of the premises, near where the drain was located.
Reasons of trial judge
Having summarised the evidence, the judge first considered whether there was a breach by Southern Colour of its duty of care as the employer of Mr Parr. In doing so, the judge stated:
The risk of injury to the plaintiff must be identified with some precision before a breach of the first defendant’s duty can be determined. In this case, it was the risk of the plaintiff sustaining injury as a result of his requirement to safely access the place of employment in the circumstances of this case. The employer’s duty of care extends to providing its employees with a reasonably safe means of access to and from the workplace.[2]
[2]Reasons [69].
The judge was satisfied that, before and at the time of Mr Parr’s accident, Southern Colour knew that its employees left the factory by the bindery door to go out to lunch, and to use the eastern car park. The judge noted that the bindery door was left open in summer for cross-ventilation, that the employees of Southern Colour went out the bindery door to smoke, and that servicemen for the cooling tower situated close to the eastern wall of the factory gained access by exiting the bindery door. The judge also noted that the alarm for the bindery door had been deactivated on the instruction of Mr De Silva in order to accommodate the use of it.[3] The judge also concluded that it was known to Southern Colour that the factory could not be accessed from the eastern side if the bindery door was shut.[4] The judge accepted the evidence of Mr Parr and Mr Dalgleish that they, and other employees of Southern Colour, had gained access to the factory by climbing over the fence near the factory wall in order to return to work.[5] The judge found, on the balance of probabilities, that employees of Southern Colour did climb over the fence at or near the south-east corner of the factory when they were unable to gain access to the factory through the bindery door. The judge was also satisfied that Southern Colour knew that its employees went out of the premises to use the car park or to go to lunch through the bindery door.[6]
[3]Reasons [73].
[4]Reasons [74].
[5]Reasons [75].
[6]Reasons [76].
The judge then made the following finding:
I find that it was not fanciful or far-fetched that the employees of the first defendant [Southern Colour] would climb over the fence to gain access to work after lunchtime. There was no evidence that the employer banned or instructed workers not to climb over the fence. On the evidence in this case, the overwhelming inference is that the management of the first defendant was aware that workers, on occasion, did climb over the fence to return to work.[7]
[7]Reasons [77].
The judge accepted the evidence of Mr Parr that the tan bark mulch and leaves over the garden bed were only about one inch deep, and if they were scuffed with a boot it would go down to the clay. The judge noted the evidence of Mr Lumsden and Mr De Silva that there was no maintenance of the garden bed at any time before the accident and after construction of the factory extension. His Honour further found that there was no evidence of any inspection of the eastern garden bed before Mr Parr’s accident.[8]
[8]Reasons [78]–[79].
The judge then made the following finding:
I find that if the first defendant had conducted an inspection of the eastern garden bed at any time after the fence adjoining the south-eastern corner of the factory was constructed, the drainage pit would have been located and a proper concrete cap and lid installed over it. If the chipboard had been placed over the drainage pit, it would also have been located after a proper inspection and the risk or danger of the drainage pit would have been discovered. The appropriate construction of a cap and lid would have taken place.[9]
[9]Reasons [81].
The judge further found that, similarly, if the eastern garden bed had been maintained in the same manner as the rest of the premises, the drainage pit would have been located and appropriate remedial action taken. In that respect, the judge stated:
The fact that the circumstances of the transport accident meant the plaintiff and Mr Dalgliesh could not access the front of the employer’s premises after they had gone to collect their lunch does not change my finding that the employer has breached its duty of care to the plaintiff. As I have found, the first defendant was aware the rear part of the premises – ie the eastern garden bed – was used by the employees to access the workplace and it had a duty to make sure it was safe for them to do so. It failed in that duty by failing to inspect and maintain the eastern garden bed of the premises.[10]
[10]Reasons [84].
After Mr Parr was injured, action taken by Southern Colour and Knight Frank to remedy the defect was both practical and inexpensive. If the drainage pit had been fitted with the proper cover before Mr Parr’s accident, he would not have been injured.[11] Accordingly, the judge concluded that Southern Colour failed in its duty of care by failing to inspect and maintain the eastern garden bed at the premises. The judge was satisfied that the injuries to Mr Parr’s lower back were caused by the negligence of Southern Colour.
[11]Reasons [83].
The judge then turned to the question of the duty owed by Southern Colour and Knight Frank to Mr Parr as occupiers of the premises. The judge considered that ‘… to any fair-minded person, the covering of a pit of this nature with a piece of chipboard open to the elements is “an accident waiting to happen”’.[12] The judge considered that it was a reasonable inference that Southern Colour and Knight Frank ought to have known that the drainage pit was located in the south-east corner of the factory at the foot of the fence, and his Honour considered that the duty of care, owed by both of them as occupiers of the premises, required that they each ensure that the pit was adequately and properly covered to avoid risk of injury to persons lawfully coming onto that part of the property.[13] The judge considered that the risk of injury to a lawful visitor was foreseeable if such a visitor was to step on the chipboard cover to the drainage pit.[14] The judge concluded that Southern Colour and Knight Frank had each breached the duty of care they owed as occupiers to Mr Parr by failing to inspect the eastern garden bed on a regular basis, and by failing to maintain it in a safe condition.[15] As mentioned, the judge apportioned liability as 75% to Southern Colour, and 25% to Knight Frank. The judge found that there was no contributory negligence on the part of Mr Parr.
[12]Reasons [90].
[13]Reasons [92].
[14]Reasons [94].
[15]Reasons [95].
Grounds of appeal
The application for leave to appeal is based on two proposed grounds of appeal, namely:
1.In determining that the applicant had breached the duty of care that it owed to the first respondent, the trial judge failed to apply correctly the principles essayed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 41 at 47–8 and the factors set out in s 14B(4) of the Wrongs Act 1958 (Vic).
In particular:
(a)the trial judge failed to identify correctly the relevant risk of injury — namely, the risk of the first respondent sustaining injury as a result of falling into a concealed and inadequately covered drainage pit in the eastern garden-bed area of the premises occupied by the applicant;
(b)the trial judge failed to determine whether the relevant risk was reasonably foreseeable in the sense that it was not ‘far-fetched or fanciful’;
(c)in the event that the relevant risk was reasonably foreseeable, the trial judge failed:
(i)to make any finding about the probability of the occurrence of that risk;
(ii)to determine what, if anything, a reasonable person in the applicant’s position would have done by way of response to that risk, having regard to the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action; and
(iii)to determine the nature and extent of any inspection or maintenance that a reasonable person in the applicant’s position would have carried out by way of response to that risk; and
(d)the trial judge failed to determine the issue of breach prospectively, with the consequence that his determination of that issue became separated from the standard of reasonableness.
2.The trial judge erred at [81]–[82] and [96] of the reasons in finding that, if the applicant had properly inspected or maintained the eastern garden-bed area, the location and state of the drainage pit would have been discovered.
Submissions
In support of ground 1, counsel for the applicant submitted, first, that the judge erred by identifying the relevant risk as being the risk of Mr Parr sustaining injury as a result of his requirement to safely access his place of employment. Counsel contended that the judge should have identified the relevant risk as being the risk that materialised, namely, that of Mr Parr sustaining injury as a result of falling into a concealed, and inadequately covered, drainage pit in the eastern garden bed area of the premises. Counsel contended that the generality of the identification by the judge of the risk obscured the circumstances in which Mr Parr sustained his injuries, so that the judge did not correctly address the questions whether the relevant risk of injury was reasonably foreseeable, and, if so, what would have constituted a reasonable response to that risk.
Counsel submitted that the relevant risk — of an employee falling into the drainage pit — should have been assessed as far-fetched or fanciful, in circumstances in which nothing had occurred to put the applicant on notice that any such risk existed, and in which the garden bed was covered by mulch so that the chipboard and drainage pit were obscured. While the applicant knew that its employees used the garden bed area for a number of purposes, there was no evidence that the applicant was on notice that the area in which Mr Parr fell constituted a danger.
Counsel for the applicant further contended that, in determining what a reasonable person would have done by way of response to a foreseeable risk of injury, the analysis of the content of a duty of care, described by Mason J in Wyong Shire Council v Shirt,[16] required the judge to have considered the magnitude of the risk and the degree of probability of its occurrence, together with the expense, difficulty and inconvenience of taking remedial action. He submitted that the judge did not embark on any such analysis of the risk. Counsel noted that, on the evidence of Mr Parr and Mr Dalgleish, employees of Southern Colour only climbed the fence on a few limited occasions, which were so infrequent that it was not reasonable to expect Southern Colour to inspect that area of the garden bed alone. Further, counsel contended that the judge ignored the fact that no reasonable inspection could have led to discovery of the drainage pit, unless such an inspection involved displacement of the mulch at the foot of the fence. In that respect, counsel submitted that the judge ignored the fact that the garden bed area covered some 90 square metres, and it would not be reasonable to expect the applicant to have displaced the mulch from the whole of the garden bed in response to a risk of injury that was extremely unlikely to materialise. Further, it was contended that Mr De Silva had conducted a sufficient visual inspection of the area, and thus had discharged any obligation the applicant might have to inspect it.
[16](1980) 146 CLR 40, 47–48 (‘Shirt’).
In those circumstances, counsel submitted that the application of the Shirt analysis to the relevant risk of injury in the case should have led the judge to conclude that the applicant had not breached its duty of care to Mr Parr.
In support of ground 2, counsel for the applicant submitted that the judge erred in finding that, if the applicant had properly inspected or maintained the eastern garden bed area, the drainage pit, and the chipboard cover over it, would have been discovered. In that respect, it was submitted, the judge failed to specify, or give content to, the inspection and maintenance which he held should have been undertaken by Southern Colour. Counsel further submitted that, on the facts of the case, no reasonable inspection could have led to the discovery of the drainage pit or the cover over it. Further, it was submitted that no explanation was given by the judge as to how appropriate maintenance of the eastern garden bed would have led the applicant to discover the pit or the cover to it. Indeed, it was submitted, if additional tan bark and mulch had been placed over the eastern garden bed, that would have had the effect of rendering the discovery of the drainage pit less likely.
In response, in respect of ground 1, it was submitted on behalf of the first respondent (Mr Parr) that the judge correctly identified the relevant risk, namely, the risk of injury to employees accessing the workplace via an unmaintained and uninspected garden area, including by climbing an adjacent wire fence. Counsel submitted that the risk, created by those circumstances, was that an employee might fall and sustain injury due to a hazard or irregularity in the surface of the garden bed that was concealed by the layer of mulch on the garden bed, or by seeking to access the workplace via the fence. In that respect, the pit was a hidden trap, placed at the foot of that part of the fence which, the applicant was aware, its workers climbed over from time to time in order to return to work.
Counsel for the first respondent further submitted that the judge did not err in holding that the risk was reasonably foreseeable, in light of his Honour’s findings that there was no maintenance of the garden bed at any time before the accident, that the applicant was aware that employees gained access to the bindery door from the car park over the garden bed, that there was no inspection of the eastern garden bed other than by a ‘quick look’, and that, if such a proper inspection had taken place, the existence of the chipboard cover over the drainage pit would have been obvious and discovered. In those circumstances, it was submitted, the judge did not err in finding that it was not fanciful or far-fetched that employees might sustain injury by seeking to climb over the fence in order to access the workplace after lunch time.
Counsel for the first respondent further submitted that the question, of what would have been a reasonable response to the risk, was not to be answered by confining the risk to the particular hazard that eventuated in the case. Rather, the relevant risk was that of the employees of the applicant using the garden bed to access the factory by various methods, including climbing the fence. In those circumstances, it was submitted, the applicant was obliged to inspect the garden bed adjacent to the fence, and to maintain it in order to ensure that it provided a safe and secure surface for that purpose. In the present case, the applicant did not conduct any adequate inspection or maintenance of the garden bed.
Counsel for the first respondent contended that the judge did determine the issue of breach prospectively. The judge had the advantage of hearing the evidence of both Mr Parr and Mr Dalgleish, and he was entitled to infer that the applicant was aware that its employees did climb the fence in the general area in which the pit was located. It also knew that its employees used the bindery door to access the car park, and for other purposes. Counsel submitted that proper maintenance and inspection of the garden bed would have revealed the danger of the chipboard cover over the drainage pit, and would have resulted in its replacement by a suitable cover.
Counsel repeated the same submission in response to ground 2. In particular, counsel submitted that, in order to ascertain whether employees commenced their climb of the fence from a sound surface, Southern Colour was required, as part of its duty of care, to check the stability of the surface of the ground at that point beneath the mulch that covered it. In that respect, counsel noted that the judge had accepted the evidence of the applicant that the mulch was only about one inch (2.5 centimetres) deep, so that if it was scuffed with a boot, the surface under it would be readily revealed. Having accepted that evidence, it was submitted, it was clearly open to the judge to hold that appropriate maintenance and inspection of the area of the eastern garden bed would have readily revealed the presence of the chipboard cover over the drainage pit.
Legal principles
The duty of care, owed by Southern Colour to Mr Parr as its employee, is well established. It was defined by the High Court in Czatyrko v Edith Cowan University[17] in the following terms:
… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.[18]
[17](2005) 214 ALR 349 (‘Czatyrko’).
[18]Ibid 353 [12] (citations omitted). See also Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1, 12 [21].
The stringency of that duty, owed by an employer to its employee, is exemplified by the proposition, stated in Czatyrko, that the employer must take into account possible thoughtlessness, inadvertence or carelessness by an employee in the course of his or her employment. In McLean v Tedman,[19] the plurality described the obligation by the employer in the following terms:
The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. … The employer is not exempt from the application of this standard vis-á-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.[20]
[19](1984) 155 CLR 306.
[20]Ibid, 311–2 (Mason, Wilson, Brennan and Dawson JJ).
As mentioned, the claim by Mr Parr was based on a breach by Southern Colour of both its duty of care to him as his employer, and also a breach by Southern Colour of its duty of care that it owed him as the occupier of the factory premises. Under s 14B(3) of the Wrongs Act 1958, as occupier of the premises, Southern Colour owed Mr Parr a duty to take such care as in all the circumstances was reasonable to see that any person on the premises would not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises. It was common ground, on this application, that that duty of care was co-extensive with the common law duty imposed on Southern Colour as the employer of Mr Parr.
In order to determine whether the applicant breached its duty of care to Mr Parr, it was necessary for the judge to correctly identify the relevant risk of injury against which Southern Colour was alleged to have failed to take adequate steps to protect Mr Parr. As Gummow J pointed out in Roads and Traffic Authority of NSW v Dederer,[21] it is only through the correct identification of that risk that an assessment can be made as to what Southern Colour should have done in response to that risk. In the absence of such a characterisation of the risk, the Court might be deflected from an evaluation of the probability and foreseeability of injury eventuating from that particular risk.[22]
[21](2007) 234 CLR 330, 351 [59] (‘Dederer’).
[22]Ibid 351 [60] (Gummow J). See also Vairy v Wyong Shire Council (2005) 223 CLR 422, 461–465 [126]–[137] (Hayne J) (‘Vairy’).
On the other hand, it is well established that, while the characterisation of the risk must necessarily take into account the harm that occurred in the particular case, and the circumstances in which the harm occurred, nevertheless it is not confined to the specific combination of circumstances in which the plaintiff sustained his or her injury. Thus, in Chapman v Hearse,[23] the High Court[24] stated the principle as follows:
… one thing is certain and that is that in order to establish the prior existence of a duty of care with respect to a plaintiff subsequently injured as the result of a sequence of events following a defendant’s carelessness it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. As far as we can see the test has never been authoritatively stated in terms other than those which would permit of its general application and it would be quite artificial to make responsibility depend upon, or to deny liability by reference to, the capacity of a reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.[25]
[23](1961) 106 CLR 112.
[24]Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ.
[25]Ibid, 120–1. See also Thompson v Bankstown Corporation (1953) 87 CLR 619, 630 (Dixon CJ and Williams J); Caledonian Collieries Limited v Speirs (1957) 97 CLR 202, 220–2 (Dixon CJ, McTiernan, Kitto and Taylor JJ); Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, 337 [60] (Gummow J); Hughes v Lord Advocate [1963] AC 837, 847 (Lord Reid), 847 (Lord Jenkins), 852 (Lord Morris), 855–6 (Lord Guest), 858 (Lord Pearse).
Similarly, in Erickson v Bagley,[26] (which involved a claim for breach of s 14B of the Wrongs Act 1958) Kyrou and Kaye JJA stated:
As with the common law, in defining the content of the duty of care, the section focuses on the identification of the risk, its foreseeability, the probability of the risk, and the reasonableness of precautions which are alleged to be required to address that risk. Thus, the first step in the analysis requires the appropriate identification of the risk against which it is alleged that a particular defendant failed to exercise reasonable care. Commonly, the proper identification of the risk can be difficult, if not problematic. Necessarily, the risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, the risk, referred to in s 48, is not to be confined to the precise set of circumstances in which the plaintiff was injured. It is well established that, in order that a defendant be held to be negligent, it is not necessary that that defendant should have reasonably foreseen that the particular circumstances, in which the plaintiff was injured, might occur. Rather, what must be reasonably foreseeable is the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred.[27]
[26][2015] VSCA 220; see also Uniting Church in Australia Property Trust v Miller [2015] NSWCA 320, [118] (Leeming JA).
[27]Ibid [33] (citations omitted); see also Port Macquarie Holdings Council v Mooney [2014] 201 LGERA 314, 329 [67] (Sackville AJA, with whom Emmett JA and Simpson J agreed); Vairy (2005) 223 CLR 422, 461 [124] (Hayne J).
Where a court determines that a relevant risk of injury was reasonably foreseeable by a person in the defendant’s position, the court is then required to consider the content of the duty of care thus owed by the defendant to the plaintiff in respect of that risk. In Shirt,[28] the High Court was concerned with the issue of whether the appellant in that case had breached its duty of care to the respondent. That issue necessarily involved consideration of the content of the relevant duty of care. In determining that question, Mason J stated, in a passage that has since been consistently applied:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[29]
[28](1980) 146 CLR 40.
[29]Ibid 47–8.
In applying those principles, it has been emphasised that it is important that the inquiry, as to whether a defendant has breached a relevant duty of care, is prospective. In particular, the court must determine what response would have been made by a reasonable person looking forward at the prospect of the risk of the particular injury that occurred.[30]
[30]Vairy (2005) 223 CLR 422, 461–2 [126]–[127] (Hayne J). See also Dederer (2007) 234 CLR 330, 353 [65]–[67] (Gummow J).
Further, in applying those principles, it is well recognised that a court may, and indeed should, rely on common sense and common knowledge in determining whether a particular risk is foreseeable, and in determining the reasonable and appropriate precautions which a defendant should have taken to avert such a risk.[31]
[31]Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362, 368 (Taylor and Owen JJ); Swain v Waverley Municipal Council (2005) 220 CLR 517, 535–6 [44] (McHugh J); Greater Shepparton City Council v Clarke [2017] 223 LGERA 221, 248–9 [108] (Santamaria, Beach and Kaye JJA).
Analysis and conclusion
The submissions made on behalf of the applicant, particularly in support of ground 1, focused on the question of the identification of the relevant risk by the judge. In particular, counsel emphasised that the judge erred by failing to identify the relevant risk as being the risk that, in the circumstances of the case, actually materialised, namely Mr Parr suffering injury as a result of falling into an inadequately covered drainage pit. Counsel submitted that, as there was no evidence that the applicant knew, or ought to have known, of the existence of the pit, or the chipboard cover over it, the risk constituted by it was not, and could not have been, reasonably foreseeable by the applicant. Further, it was submitted, if the applicant was under a duty to inspect the surface of the garden bed on the eastern side of the factory, underneath the mulch that covered it, the discharge of that duty would have required the applicant to inspect the whole of the garden bed, which, as we have mentioned, covered some 90 square metres or more.[32]
[32]Reasons [69].
That submission, on behalf of the applicant, was based on an artificially narrow, and incorrect, conception of the risk which came to pass in this case. As the authorities to which we have referred make clear, the relevant risk was not confined to the specific set of circumstances in which Mr Parr was injured, namely, by falling through a concealed hazard in the surface of the garden area from which he commenced to climb the fence. Rather, as correctly concluded by the judge, it comprehended the risk of injury arising from the circumstance, of which Southern Colour was aware, that its employees from time to time climbed the fence to the southern car park, in order to access its premises. That risk included the risk of injury to an employee should the surface, from which the employees commenced that climb, be unsafe or unsuitable for that purpose. It is clear from the judge’s reasons that, contrary to the submissions made on behalf of Southern Colour, the judge did correctly focus on the foreseeability of that particular aspect of the risk so identified by him, and which resulted in Mr Parr’s injury, namely, the unsafe nature of the surface of the ground at the point at which the accident occurred.
In characterising and addressing that risk, the judge made four important findings of facts, none of which were sought to be impugned on this application, namely:
(1)Southern Colour knew that its employees left the factory by the bindery door to go to lunch and in order to use the eastern car park.[33]
(2)Employees of Southern Colour climbed over the fence at the south-east corner of the factory when they were unable to gain access to the factory through the bindery door.[34]
(3)Southern Colour knew that the factory could not be accessed from the eastern side if the bindery door was shut.[35]
(4)Management of Southern Colour was aware that its employees, on occasion, did climb over the fence in order to be able to return to work.[36]
[33]Reasons [73].
[34]Reasons [76].
[35]Reasons [74].
[36]Reasons [77].
On any view, the activity thus engaged in by employees of Southern Colour, to the knowledge of its management, involved a reasonably foreseeable risk of injury. Quite clearly, the process of climbing a fence that was 1.8 metres high, from an untended garden bed, involved a not insubstantial risk of injury to those employees. In the circumstances of this case, it could not be disputed that the employer, Southern Colour, owed to its employees a duty to take reasonable care to protect them from injury arising out of the manner by which they sought to access the factory by climbing over the fence.
As a matter of common experience, and common sense, there are a number of potential hazards involved in climbing a cyclone wire fence that is 1.8 metres high. The most obvious hazard would arise if the fence was in any way unstable. Equally, it would be hazardous to venture upon such a climb if the surface, onto which the employee was seeking to land on the southern side of the fence, was unsafe. Further, and relevantly for the purpose of this case, experience demonstrates that there is a risk of injury, in climbing such a fence, if the surface, from which the climb is commenced, is in any way unstable, hazardous or unsuitable for that purpose.
The evidence of Mr De Silva and Mr Lumsden made it clear that, for quite some time, no steps had been taken to inspect or maintain the garden bed area, particularly at the point at which Mr Parr commenced to climb the fence. As mentioned, if for some reason the surface from which such a climb was to commence was hazardous or unstable, the person climbing the fence would be exposed to a foreseeable risk of injury. It follows, therefore, that, by virtue of its knowledge of the practice of its employees of climbing the fence at that point, Southern Colour was aware, first, that those employees would be exposed to a real risk of injury if the surface from which they commenced their climb was in any way unsafe, and, secondly, that it had not checked, inspected or maintained the ground near that part of the fence to ensure that it was a safe surface from which to climb the fence.
Counsel for the applicant sought to counter that proposition by contending that the action of Mr Parr, in preparing to climb the fence, was incidental to, rather than connected with, the risk that eventuated, namely, the collapse of the concealed chipboard cover to the pit. That proposition cannot be sustained. As the applicant was aware, the reason why employees, from time to time, entered upon the garden bed at that point, was in order to climb the fence. The applicant therefore was aware that its employees were engaged in an activity, in that part of its premises, which could result in injury to the employees, if for any reason the fence, or the ground adjacent to it, was not safe for that purpose. In that way, the conduct of the employees of the applicant, in preparing to climb the fence, was directly connected with the particular risk posed by the concealed inadequate cover to the pit, namely, by rendering the surface, from which the employees commenced their climb, to be unsafe for that purpose.
Accordingly, it follows that, as part of its duty of care to its employees, Southern Colour was required to take reasonable care to ensure that the surface of the garden bed, from which its employees climbed the fence, was safe. Contrary to the submission made on behalf of Southern Colour, the risk of injury, from that aspect of the manoeuvre of climbing the fence, was neither ‘far-fetched’ nor ‘fanciful’. The fact that Southern Colour was not aware of any previous accident involving its employees climbing the fence, and that it had not received any complaint as to the condition of the garden bed at the point at which the applicant sustained his injury, does not negate or undermine the proposition that the foreseeable risk of injury to an employee climbing the fence involved, and included, any mishap which might occur in that process due to the unsafe or unstable nature of the surface from which the employee commenced such a climb.
Counsel for the applicant contended that, notwithstanding those considerations, the applicant was not required to undertake an inspection or maintenance of the garden bed because, on the evidence, Mr Parr, and other employees of Southern Colour, only climbed the fence on infrequent, if not rare, occasions. In that respect, counsel pointed to the evidence of Mr Parr that, during the previous four years, he had climbed the fence on five or six occasions, and to the evidence of Mr Dalgleish that he had jumped the fence on three or four occasions previously. Mr Parr and Mr Dalgleish also each gave evidence that they had seen other employees climb over the fence in order to access the factory.
That evidence, of course, does not stand alone. In cross-examination, Mr Parr also said that the top part of the fence was folded over, so that there were no untrimmed pieces of wire protruding at the top, ‘because of how many people climbed over it’. Mr Parr stated that Southern Colour had some 30 employees at the time, who regularly exited the premises via the bindery door in order to go to the kiosk at lunch. In cross-examination, he said that on ‘quite a few times’ when he and his work colleagues had returned from lunch and the bindery door was closed, ‘we’ve gone over the fence’.
The judge did not make a specific finding of fact as to how many occasions Mr Parr, Mr Dalgleish, and others, had climbed the fence during the previous few years before the accident. However, as mentioned, his Honour did make a finding that employees of Southern Colour ‘… did climb over the fence at or near the south-east corner of the factory when they were unable to gain access to the factory through the bindery door’.[37] That finding, and the evidence, tends against a conclusion that only on rare occasions did the employees of Southern Colour climb the fence. In our view, the evidence established that, while the fence was climbed infrequently, nevertheless it was climbed on a sufficient number of occasions as to require Southern Colour, in discharge of its duty of care to its employees, to take reasonable care to see that it was safe for the employees to climb the fence. As stated, that obligation of Southern Colour required it to see that the surface from which the employees commenced their climb over the fence was safe for that purpose.
[37]Reasons [76].
That conclusion, then, leads to the issue of whether, in order to discharge its duty of care, Southern Colour was required to inspect the surface of the garden bed, adjacent to the fence, and if necessary to maintain it so that it provided a suitable base from which its employees might commence to climb the fence.
In our view, the judge was clearly correct in concluding that the discharge by Southern Colour of its duty of care to its employees required it to inspect and, if necessary, maintain the surface of the garden bed, next to the fence, in that way. At the risk of repetition, Southern Colour knew that its employees were climbing the fence at that point in order to be able to access the southern door to its premises. It did not take any action, whether by way of warning, or otherwise, to prevent or discourage its employees from doing so. Nor did Southern Colour take any action to enable its employees to access the premises through the bindery door, thus eliminating the need for its employees to climb the fence in order to be able to access the factory. Southern Colour knew that the area in which the employees climbed the fence was neither inspected nor maintained by it or by anyone else. In those circumstances, in our view, the judge was correct in determining that, as part of its duty of care to its employees, including Mr Parr, Southern Colour was obliged to carry out a reasonable inspection of, and appropriate maintenance to, the section of the garden bed next to the fence, in order to ensure that it provided a safe surface from which its employees might commence to climb the fence.
Senior counsel for the applicant submitted that, in the course of his judgment, the judge elevated the content of the duty of care, owed by Southern Colour to its employees, to a stricter duty than that prescribed by law. In support of that submission, he referred to the use by the judge, on occasion, of the proposition that Southern Colour had ‘a duty to make sure’ that it was safe for employees to climb the fence from the garden bed,[38] and that, as part of its duty of care as occupier of the premises, Southern Colour was required to ‘ensure that the drainage pit’ was adequately and properly covered to avoid risk of injury to persons coming onto that part of the property.[39]
[38]Reasons [84].
[39]Reasons [92].
Those passages, from the reasons of the judge should not, however, be read in isolation, or out of context. In his reasons, the judge, who is an experienced common lawyer, accurately set out the nature and content of the common law duty of care owed by Southern Colour to its employees, including Mr Parr[40] and the statutory duty of care that it (and Knight Frank) owed, as occupiers of the premises, to persons who entered the land.[41] The conclusion by the judge, that the discharge of the relevant duty of care owed by Southern Colour to the applicant, both as his employer, and as occupier of the premises, required Southern Colour to properly inspect and maintain the part of the eastern garden bed from which Mr Parr commenced to climb the fence, did not, in any way, involve the application to Southern Colour of a more strict duty than that prescribed by law, namely, a duty to take reasonable care.
[40]Reasons [67]–[68].
[41]Reasons [89].
Those propositions, then, lead to the question raised by ground 2, namely, whether a reasonable response by Southern Colour to that foreseeable risk obliged it to take steps which would be likely to have revealed to it the existence of the unsafe cover to the pit at the point at which Mr Parr commenced to climb the fence.
In resolving that issue, the judge first made a finding of fact, which is not in dispute in this application, that the tan bark mulch and leaves on the garden bed were only about one inch (2.5 centimetres) deep, and if they were scuffed with a boot, that would reveal the nature of the surface under that vegetation.[42] The judge then noted that, while Mr De Silva stated on occasions that he had a quick look around the eastern garden bed from the bindery door, there was no evidence of any inspection of the eastern garden bed at any time before Mr Parr’s accident.[43] While that finding of fact was put in issue under ground 1 of the application, it was well founded in the evidence to which we have referred. As mentioned, Mr De Silva stated that he would have a ‘quick look’ when he opened the bindery door, but he did not walk around. When asked if he walked up to the point at which Mr Parr’s accident occurred, he said:
Not really. That is in the far corner of the building, not close to the doorway.
[42]Reasons [78].
[43]Reasons [79].
The judge then proceeded to make two further findings of fact, both of which were put in issue by ground 2. The judge found, first, that, if Southern Colour had conducted an inspection of the eastern garden bed at any time after the fence adjoining the south-east corner of the factory was constructed, the drainage pit would have been located and a proper concrete cap and lid installed over it.[44] That finding appears to have been based by the judge, first, on his finding that the layer of tan bark, mulch and leaves could have been easily removed, and, secondly, on the dimensions of the drainage pit (90 centimetres by 60 centimetres). The second finding by the judge was that, if the eastern garden bed as a whole had been maintained in the same manner as the remainder of the premises, the drainage pit would have been located and appropriate remedial action taken. The judge based that conclusion on the circumstance that, in order to carry out such maintenance to the eastern garden bed, it would have been necessary to make a proper assessment of what was required, and, in that process, the danger of the chipboard over the drainage pit ‘of that dimension’ would have been obvious, discovered and fixed.[45]
[44]Reasons [81].
[45]Reasons [82].
Each of those two findings by the judge were essentially conclusions of fact based on the evidence, as distinct from findings of primary fact. The principles, relating to the drawing of conclusions or inferences, from established facts, are well established. In short, the inference must be based on evidence, it must be the product of logical deduction rather than speculation, and the party, that seeks to establish the inference, must demonstrate that that inference is the more probable conclusion to be drawn from the proven facts.[46]
[46]Holloway v McFeeters (1956) 94 CLR 470, 480–1; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 129–30 (Winneke P), 141 (Tadgell JA); Marriner v Australian Super Developments Pty Ltd [2016] VSCA 141, [73]–[77] (Tate ACJ, Kyrou and Ferguson JJA) (‘Marriner’); Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88 [101] (Santamaria, Ferguson and Kaye JJA) (‘Masters’).
On appeal, the Court is required to undertake a ‘real review’ of the evidence in respect of the findings made by the judge, and the reasons for the judge’s conclusions.[47] Where the finding, that is under review, depended on the acceptance or rejection by the trial judge of the evidence of a particular witness or witnesses, the appellate court should only set aside that finding if, after making due allowance for the advantages enjoyed by the trial judge, that finding is ‘glaringly improbable’ or ‘contrary to compelling inferences’.[48] On the other hand, in general, an appellate court is in as good a position as the trial judge to decide the proper inferences to be drawn from facts which are undisputed, or which have been established by the evidence. In deciding the proper inference to be drawn, the appellate court should, however, give respect and weight to the conclusion of the judge, but, having reached its own conclusion, it must give effect to it.[49]
[47]Fox v Percy (2003) 214 CLR 118, 126–127 [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550, 558–9 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ) (‘Robinson Helicopter’).
[48]Fox v Percy (2003) 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter (2016) 331 ALR 550, 558–9 [43].
[49]Warren v Coombes (1979) 142 CLR 531, 551; Fox v Percy (2003) 214 CLR 118, 126–7 [25] (Gleeson CJ, Gummow and Kirby JJ); Devries v Australian National Railways Commission (1993) 177 CLR 472, 480; (Deane and Dawson JJ); Marriner [2016] VSCA 141, [139]–[141] (Tate ACJ, Kyrou and Ferguson JJA); Masters [2017] VSCA 88, [95]–[98] (Santamaria, Ferguson and Kaye JJA); Beaumaris Football Club v Hart [2017] VSCA 226, [90]–[91] (Osborn, Beach and Kaye JJA); Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17, [51] (Santamaria and Beach JJA); Springfield v Duncombe [2017] NSWCA 137, [16]–[20] (Basten JA).
In applying those principles, however, it is important to bear in mind that there is a necessary interrelationship between the finding of a particular primary fact or facts, and the drawing of a conclusion or inference. That relationship was described by this Court in Box Hill Institute of TAFE v Johnson[50] in the following terms:
… while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge’s view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.[51]
[50][2015] VSCA 245.
[51]Ibid, [37] (Warren CJ, Hansen and Kaye JJA).
Counsel for Southern Colour submitted that, in concluding that a reasonable inspection would have revealed the unsafe cover to the drainage pit, the judge failed to take into account that the whole of the eastern garden bed between the bindery door and the fence covered some 90 square metres. Thus, it was submitted, the judge was required to determine whether an inspection involving the displacement of mulch from the whole of that area would have been required as a reasonable response to the relevant risk of injury. In support of that submission, counsel relied on a passage from the judgment of Hayne J in Vairy,[52] which, counsel submitted, supported the proposition that, in determining the response to be made by a defendant to an identified risk, the court is required to take into account, not only the particular part of the defendant’s premises at which the risk eventuated, but the whole of the premises under the control of the defendant to which the same, or a similar, risk might occur.
[52](2005) 223 CLR 422, 460 [122].
That submission ignores the particular risk that was in issue in the present case. As stated, that risk comprised the risk of injury to persons who endeavoured to climb the fence, at the south-east corner of the factory, in order to gain access to the factory. Mr Parr gave evidence that he favoured the point at which the fence connected to the factory as the location of his climb, because the fence was strongest at that point. Thus, the relevant risk was specific to one part only of the defendant’s premises. As previously mentioned, the potential risk to an employee climbing the fence, which was reasonably foreseeable, involved a range of contingencies, including those which might eventuate if the surface from which the climb commenced was unsafe or unstable in any manner. It follows that the nature of the inspection, that was required as a reasonable response to the risk of injury, would particularly focus on that point of the eastern garden bed from which, to the knowledge of Southern Colour, its employees from time to time sought to climb the fence.
No doubt, in general terms, Southern Colour owed a duty to its employees to inspect the whole of the eastern garden bed, as the evidence suggested that its employees walked over other parts of it for various purposes. However, as stated, the stability and safety of the garden bed, at the point at which employees climbed the fence, was of particular importance. It was the point at which, to the knowledge of Southern Colour, employees commenced to climb the fence, an activity which, on any view, involved a foreseeable risk of injury.
In that way, this case is quite distinct to the facts in Vairy, that were relevant to the passage from the judgment of Hayne J, to which counsel referred. In that case, the plaintiff had suffered irreversible tetraplegia as a result of diving from a natural rock platform into shallow water of the sea. The defendant council was responsible, not only for that part of the seabed, but for a section of it that extended along some 27 kilometres of coastline. The risk to the plaintiff, in that case, thus was the same as, or similar to, the risk to any other person who might dive into the seabed along the whole of that coastline. By contrast, in this case, the risk, that was relevant to this case, was confined to one point in the applicant’s premises, namely, that part of the eastern garden bed that was adjacent to the fence over which Mr Parr had commenced to climb.
The evidence demonstrated that most of the eastern garden bed, and, in particular, that part of it that was adjacent to the fence that Mr Parr commenced to climb, was covered with a mulch comprising fallen leaves and other vegetation, that had accumulated over the years. That layer of material obscured the surface of the garden, from which employees of the applicant climbed onto the fence. In order to ascertain whether the garden bed, at that point, provided a safe surface from which to commence to climb the fence, it was necessary for Southern Colour to check the nature of the surface of the bed that was under the layer of mulch at that point.
In our view, the judge was clearly correct in concluding that if Southern Colour, for that purpose, had undertaken even a relatively cursory inspection of the surface of the garden bed at the point at which the employees commenced to climb the fence, such an inspection would have revealed the existence of the pit, and the existence of the inadequate cover over the pit consisting the piece of chipboard. As we have already mentioned, the conclusion, by the judge, to that effect was based on his finding that there was a relatively thin layer of tan bark and mulch and leaves over the chipboard at that point (approximately 2.5 centimetres), which could have been readily removed by the scuffing of a boot. Further, given the dimensions of the drainage pit, the judge was justified in concluding that such an inspection of the surface of the ground at that point would be likely to have revealed the existence of the chipboard cover over the drainage pit. Accordingly, the judge was correct in concluding, as a fact, that a reasonable inspection of the garden bed, at that point, would have revealed the unsafe nature of the cover over the drainage pit, and into which Mr Parr fell when he sustained his injury.
The evidence of Mr De Silva made it plain that Southern Colour itself did not carry out any maintenance on the garden bed adjacent to the eastern wall of the factory. Mr Lumsden stated that while the garden bed south of the dividing fence was maintained, Knight Frank did not organise any maintenance for the garden bed adjacent to the eastern wall of the factory, because that area was the property of Southern Colour. On the findings by the judge, Southern Colour was aware that its employees walked along or across the garden bed for a variety of reasons, including to access and climb the fence. As such, it owed a duty to its employees to maintain the garden bed in a condition that was reasonably safe for that purpose.
As noted, the judge found, as a fact, that, if the eastern garden bed was maintained, the first step to that process would involve a proper assessment of what was required, and, in that process, the danger of the chipboard over the drainage pit would have been obvious. Southern Colour had not taken any step to maintain the garden bed since the construction of the southern fence, some four years before Mr Parr’s accident. In the meantime, it was covered by a layer of mulch from vegetation that had fallen into it. In those circumstances, a sufficient assessment of the garden bed, that would be preliminary to maintaining it in a safe and proper condition, would have involved an examination of the nature of the surface of the bed under the layer of mulch that covered it, particularly in the area that was adjacent to the fence over which Southern Colour’s employees, from time to time, climbed. In that way, if Southern Colour had undertaken basic maintenance to the garden bed to ensure that it was safe, at that point, that process would be likely to have revealed to it the existence of the pit, and the chipboard cover over it.
It follows that the judge was correct to conclude that, if Southern Colour had undertaken proper maintenance of the eastern garden bed to make it a safe surface for its employees to climb onto the fence, that process would be likely to have revealed the existence of the pit, and the unsafe chipboard cover to it.
For those reasons, we have reached the conclusion that grounds 1 and 2 of the application must fail.
Accordingly, we would grant the applicant leave to appeal on both grounds, but would dismiss the appeal.
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