Spinks v Middlehurst
[2014] NSWDC 19
•27 March 2014
District Court
New South Wales
Medium Neutral Citation: Spinks v Middlehurst [2014] NSWDC 19 Hearing dates: 24/03/2014 - 26/03/2014 Decision date: 27 March 2014 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for plaintiff for $437,489.60
Catchwords: Pedestrian worker, liability of driver and employer. Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987Cases Cited: McLean v Tedman and Anor (1984) 155 CLR 306 Category: Principal judgment Parties: Gregory Spinks (Plaintiff)
Angela Middlehurst (Defendant)Representation: R McIlwaine SC and C Thompson (Plaintiff)
A Black SC (Defendant)
Carroll & O'Dea (Plaintiff)
McInnes Wilson Lawyers (Defendant)
File Number(s): 2010/00382932 Publication restriction: No
Judgment
The plaintiff was born in 1960 in Balmain. On 23 January 2009 he was injured when he was struck by a vehicle driven by the defendant. The plaintiff has sued the defendant for damages arising from his injuries.
The defendant has denied that she was negligent and, in the alternative, said that if she was negligent then so too was the plaintiff. The defendant has also relied on Section 151Z of the Workers Compensation Act 1987 (the "WCA") to reduce any liability she had. She said the plaintiff's employer was partly to blame for the accident.
The action is otherwise governed by the Motor Accidents Compensation Act 1999 (the "MACA"). The plaintiff claimed damages under the following heads: past and future economic loss (including lost superannuation benefits and Fox v Wood damages), past and future medical expenses, past gratuitous care and future commercial care.
The plaintiff is not entitled to non-economic loss because he has not exceeded the threshold imposed by Section 131 of the MACA.
Ultimately all of the heads of damages were agreed. The total was $476,862. The agreement was finalised on the last day of the hearing and after the completion of the evidence. This meant I had the opportunity to assess the plaintiff both in relation to his evidence on liability and his injuries.
Another agreement that should be noted at this stage is that the parties agreed that for purposes of Section 151H of the WCA, the plaintiff met the 15% threshold.
The plaintiff's background, including his work history, is set out in Exhibit A. Suffice to say, because damages have been agreed, that by the time of his accident the plaintiff was married with two sons, the family was living on the Central Coast and the plaintiff was travelling to work with the Sydney City Council where he was well established as a garbage truck driver.
As a result of the accident the plaintiff has been left with a permanent disability in his right leg together with significant scarring. He has returned to work but has limitations on his previous capacity. In addition there has been an interference with his hopes to have taken a second job as a personal trainer.
The accident
One of the plaintiff's 'runs' was in Queen Street, Newtown. This is a one-way street running in a general north-south direction. Traffic was allowed to travel north. The nature of the street can be seen in Exhibit C. It is a narrow street with cars parked on each side.
The plaintiff drove a garbage truck similar to the one pictured in Exhibit B. His team consisted of himself as driver and two colleagues who, when the vehicle was moving, would stand on the platforms that can be seen at the rear of the truck. As necessary the two co-employees would step down from the truck and retrieve bins that would be emptied into the compactus section at the rear of the vehicle.
The workers wore a bright shirt with reflective strips (Figure 4 at page 574 of Exhibit E2). The truck was bright yellow. It had flashing lights and revolving beacons on its roof (Exhibit B).
Some of the bins were very large, having a 1000 litre capacity. These would generally be found in blocks of units. There were a number of unit blocks in Queen Street. Where possible, and in order not to block the thoroughfare, the plaintiff would park the truck across the driveway of the block of units from which the bins were being collected.
On 23 January 2009, at about 8.15am, the plaintiff placed his truck across the driveway of a unit block at 5-17 Queen Street, Newtown. His two colleagues, Mr Carroll and Mr Golding, went off to fetch two 1000 litre bins from the block. They brought them both back to the truck and placed the first one into position. This involved lining it up squarely with the back of the truck and then activating a device which would latch onto the bin and then lift and empty it into the back of the truck. A compacting mechanism would be turned on, and then after the garbage had been dealt with, the bin would be lowered back to the roadway.
After the first bin was lowered, Mr Golding returned it to the block of units.
In order to assist Mr Carroll to attach the second bin, the plaintiff left the cab and walked along the driver's side to the rear of the truck. He then assisted Mr Carroll to line up the bin for its attachment to the relevant mechanism. Once it was attached the plaintiff took a step back, knowing that the bin was going to be lifted and he needed to be clear of it. In stepping back he moved about six inches into the roadway beyond the driver's side of the truck. He said that he looked for oncoming traffic before he did so. He did not see any traffic (T 42.41).
The reason he stayed in the general area was in case the bin detached and rolled backwards. This happened from time to time.
The plaintiff then remained standing while the process was completed. He said the whole operation took about 30 seconds.
There is no dispute that the defendant was driving north along Queen Street. An expert retained by the plaintiff, Mr Johnston, estimated that the defendant's vehicle, a Toyota Aurion, would have had about a 12cm clearance on either side as it proceeded between the parked vehicles (Exhibit E2, page 572).
While he was in the standing position, effectively with his back towards oncoming traffic, the plaintiff felt a "brush" just above his hip on his right hand side. He was startled and knocked off balance. He put his right leg backwards to regain balance. He felt an impact with the lower part of his right leg and then found himself on the ground facing in a southerly direction. He had suffered significant injuries to his leg.
There is no other explanation but that the plaintiff's right leg was run over by the left rear tyre of the defendant's Toyota.
A female approached the plaintiff and said: "Sorry". Assuming this was the defendant I do not regard her statement as an admission of negligence. The statement could have been about the plaintiff simply being hurt, or being in obvious pain. Something more would have been needed to elevate the statement into an acknowledgement of negligent driving. I note that Section 69 of the Civil Liability Act 2002 (the "CLA") does not apply to these proceedings.
The plaintiff was cross-examined on the precise location of the brush. It was suggested he had told Mr Johnston that it was in the buttock area. The importance of the point was that if the buttock was the point of contact it was unlikely that the brush was with the vehicle's left side mirror. If that was the case, ran the defendant's cross-examination, then it was more likely that the plaintiff had backed into the car somewhere between the mirror and the back tyre.
The plaintiff could not say what the brush was with. He was however adamant that he had been stationary in the same position for some time before there was any contact. I do think the position he initially indicated (in the witness box) was a little higher than later in cross-examination, but I do not think the issue is of major significance. The plaintiff did not positively allege he brushed the wing mirror. He did not know. The important question was whether he was standing still or walking backwards.
I also note from Figure 4 in Mr Johnston's report that the size of the mirror is large enough to include the top of the buttock (Exhibit E2, page 574).
I formed a very favourable impression of the plaintiff. I thought he was honest to the point of significantly understating the effect of his injuries. He has worked hard to return to full employment. He gave up alcohol as soon as he saw its consequences (the departure of his wife) and he fully accepted his wrongdoing in criminal proceedings against him. These proceedings arose from the plaintiff discovering his wife was having an affair with his cousin.
Mr Gregory Carroll gave evidence. He was one of the labourers present at the scene. He and Mr Golding retrieved the two bins from the block of units. The first was emptied into the garbage truck and returned to the block. He said that he was then assisted by the plaintiff to attach the second bin. He marked the position in which he was standing on Exhibit 1 with an 'X'. He marked the position of the plaintiff with the number '1' on the same exhibit. Although his mark has the plaintiff closer to the back of the truck, it does confirm the plaintiff's evidence that he was standing outside the line derived from the side of the garbage truck.
Mr Carroll said that when the bin was lowered he heard the plaintiff "singing out in pain". He then saw the rear window of a vehicle passing the back of the truck. A lady came up to the plaintiff and said, "I'm sorry, I'm sorry". Mr Carroll said his view of the plaintiff was obscured and he did not see the impact. He did, however, see the motor car. He thought it was travelling at about 50kph. He conceded under cross-examination that he only had a glimpse of the vehicle. I do not think his estimate of speed is reliable.
The defendant gave evidence. She said that she was on her way to work. She was driving along Queen Street. She saw the garbage truck and two workers ahead of her. The truck had flashing lights and the workers had protective clothing on.
The defendant said there were cars parked on both sides of the roadway but, although there was not a lot of room, it was nevertheless easy to drive through. She thought that the two men she saw were handling a bin. In cross-examination she thought that the bin might have been elevated. This is an important point because I think it corroborates the plaintiff's assertion that once the bin had started its journey from the ground he had stepped back to allow it to be raised.
The defendant said that when she saw the men ahead of her she slowed down and specifically looked at her speedometer. It displayed a speed less than 30kph. This assertion is different to her statement to the police officer (Exhibit H). The exhibit has this entry:
"Q: How fast were you travelling prior the collision?
A: About 30km/h I didn't look."
The defendant said that the two men were behind the truck. Neither of them was outside the line of the truck. This is, I think, inconsistent with her statement to the police where she said:
"I saw the garbage truck and the guys on the corner. I think they were with a bin ..." (Emphasis added).
The defendant said that as she passed the truck she heard a noise. She was almost past the truck at this stage. Although the matter was not taken up in cross-examination, having regard to the length of the truck, I find it difficult to accept that she had almost passed the larger vehicle when the noise was heard.
The defendant conceded that as she was passing the truck she was focussed on the road ahead of her and not on the men she had seen. She could not say where the plaintiff was:
"Q. You don't know, as you reached the area shortly before the garbage truck, where the man who was nearest to your vehicle was standing, because your focus was ahead of you up Queen Street; that's correct, isn't it?
A. Yes." (T 120.28)
The plaintiff submitted that the presence of the workers should have remained a constant alert to her so that she took them into account as she was passing the truck. As stated by counsel for the plaintiff, the defendant "took her chances" in passing the plaintiff.
The defendant said that having heard the noise she stopped her car and came back to the rear of the garbage truck where she saw the plaintiff lying on the ground, in agony. She denied that she said "Sorry". I have already dealt with the purported admission above. I do not think it necessary to decide whether the defendant did actually apologise, although I think she probably did, especially in the light of Mr Carroll's evidence.
Primary liability
I accept the plaintiff's description of the accident, in particular that he had been standing in a stationary position for some time before he was struck by the defendant's vehicle. My conclusion is derived from the following:
(a) My acceptance of the plaintiff as a reliable witness.
(b) The inconsistencies between the defendant's evidence and the contents of her statement to the police in Exhibit H.
(c) The probability that if the plaintiff was on the "corner" and the bin was being elevated, that the plaintiff was standing in the position that he alleged.
(d) The corroboration of the plaintiff's evidence, at least to the extent of the plaintiff standing in the defendant's path, provided by Mr Carroll and his markings on Exhibit 1.
I asked the defendant's counsel if he conceded that if I accepted the plaintiff's version that the defendant was necessarily negligent. He said he did not wish to make any submission to the contrary but was not able to make the concession. Section 3B of the CLA says that Part 1A of this Act applies to motor accidents. It is therefore necessary for me to apply the negligence provisions of the CLA. As far as the duty of care is concerned it was accepted by the defendant that she, as a motorist, owed a duty of care to the plaintiff, as a pedestrian.
Turning then to Section 5B of the CLA I am satisfied that the risk of running down a pedestrian was foreseeable and not insignificant. I am further satisfied that a reasonable person in the position of the defendant would have taken precautions to avoid that risk. In relation to Section 5B(2) I have considered that there is a probability that harm will occur if a vehicle strikes a pedestrian, that that harm is likely to be serious and that the burden of taking precautions to avoid the risk is achieved by keeping a proper lookout and driving at an appropriate speed. I do not think that Section 5B(2)(d) is relevant.
As far as causation is concerned I am satisfied that but for the defendant's negligence the plaintiff would not have suffered his injuries. No submission was made to the contrary.
I think it necessary to expand a little on my conclusion of the defendant's negligence.
The defendant approached the plaintiff knowing he was ahead of her. Even if there was enough room to pass him, the available 'free' space was very limited. He had his back to her and was not made aware of her progress. It was not suggested to the plaintiff that he would have heard the vehicle approaching. In any event the noise of the Toyota's engine may well have been secondary to the noise of the bin being lifted and also of the truck's engine. The engine was still running notwithstanding that the vehicle was stationary (T 136.23).
In addition, if the defendant was driving at about 30kph then I think this speed was too fast in the circumstance of having so little space in which to negotiate her way past the plaintiff.
If I am wrong in accepting the plaintiff's version I think the defendant was negligent on her own version. She was approaching workers with their back to her who were engaged in an operation that, reasonably, might have seen them move, including beyond the path of the line of the truck. It would have been a very simple action on her part to sound her horn and give warning of her approach. In addition, she could, and should have, slowed to effectively a walking pace as she passed the men working so close to her path of travel. The only difference I think that arises from the acceptance of one version or the other concerns whether there was, and the extent of, any contributory negligence on the plaintiff's part.
I have already referred to the expert report by Mr Grant Johnston. It can be found behind Tab 29 in Exhibit E2. Mr Johnston was cross-examined. I did not obtain much assistance from Mr Johnston's report, although it did contain some useful measurements and photographs. In my view the resolution of the liability issues in this case has depended on factual findings. The parties did not suggest otherwise.
Contributory negligence
The plaintiff submitted that there should be no finding of contributory negligence. The defendant suggested a range of 25% to 30%. The defendant submitted that the plaintiff, as the leader of the crew working on the garbage truck, would have been aware of the circumstances in which he was working, in particular that the street was narrow and busy, that there was enough room for vehicles to drive past and that if they did so they would be driving in very close proximity to any person standing outside the line of the truck.
Had I found that the plaintiff had walked backwards into the vehicle there would have been a finding of contributory negligence. However, that is not my finding. On the version that I have accepted he first of all looked to see if there were vehicles approaching. There were not. He was wearing very visible clothing and the truck was brightly coloured and well lit, including flashing lights both at its base and (revolving) on the top. Having assumed a position where there were no vehicles coming he was in my view entitled to assume that any driver approaching would have him well in view and would react accordingly, that is either wait for him to get out of the way, sound the horn or proceed at effectively a snail's pace so that he would become aware of the vehicle and it would be unlikely to cause him any harm.
Accordingly I make no finding of contributory negligence on the plaintiff's part.
Section 151Z(2) of the WCA
My first observation on this topic is that Section 5B of the CLA does not apply to the assessment of the employer's negligence. If it did apply my conclusion stated below would be no different.
The defendant called Mr Michael Jones to give evidence in support of her allegations against the plaintiff's employer. Mr Jones is a team leader with the Council. He works in the Cleansing Department. After the plaintiff's accident he was asked to prepare a hazard report. He did so and made two recommendations. The report is Exhibit 2. The recommendations are on the second page. The first recommendation is:
"In narrow one way streets drivers must ensure the waste compactor vehicle is parked in the centre of the road to prevent wheeled vehicles or cycles and pedestrians from trying to pass in a confined or narrow space."
This recommendation was adopted by Council and given as a directive to the cleansing employees at a toolbox meeting within two weeks of the plaintiff's accident.
I have some reservations about the weight that should be attached to Exhibit 2. My concern arises from the details given under the headings "Description of Incident/ Hazard" and, on the second page, "Cause of Incident/ Hazard". The version of the accident under these headings is different to that which I have found. The defendant did not rely on these entries in support of her case.
My concern about Exhibit 2 arises from the possibility that the recommendations were a product of the history that Mr Jones had received. I put this issue to counsel for the defendant. He replied that the detail was not relevant; rather the important point was that Mr Jones was dealing with an accident involving an employee on a narrow street. It did not matter that the employee may have walked into the vehicle, or the vehicle struck him while he was standing still.
While there is force in counsel's argument I nevertheless think that the document must be treated with caution. What it does achieve, however, is to show that there were simple steps available to the employer to avoid accidents of the type that occurred in this case.
The plaintiff submitted that the hypothetical claim against the employer could not succeed because it simply lacked the evidence to support it. It was pointed out that there was no evidence of any other previous incidents of a similar nature. It was also submitted that there was no negligence on the Council's part. The workers were adorned in reflective clothing and the truck was a bright colour with lots of flashing lights. The Council had provided reasonable precautions for the safety of its employees. Further, to have the trucks blocking traffic was an unreasonable reaction to the possible risks.
The defendant submitted that the duty of an employer to an employee is a very high duty. It includes consideration of the negligence of third parties as well as the negligence of the employees themselves. The latter point is not relevant here in light of my finding that there was no contributory negligence on the plaintiff's part.
The anticipation of the negligence of motorists is, however, relevant. This was made clear by the High Court in McLean v Tedman and Anor (1984) 155 CLR 306. I accept that the present case involves different facts but nevertheless the principles remain applicable. I refer in particular to this passage from the judgment at page 311:
"There are several points which need to be made about this course of reasoning. Although running across the road was a means of doing the work which the appellant and other employees chose or preferred, it was nevertheless a system of work of which, as the primary judge found and the Full Court did not deny, Brambles was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the appellant was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful (see Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at p 47) or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of an employee."
The last sentence of the above quote is especially relevant.
In my view it was negligent on the part of the employer not to have introduced a system which would prevent injuries to employees working in circumstances such as existed in Queen Street. I think it is reasonably foreseeable that motorists will try and pass workers while they are going about their duties and will attempt to do so by precarious manoeuvres. As shown by the directive in Mr Jones' report, the burden of taking precautions is very light. The possibility of causing a build up of traffic is a necessary inconvenience in the provision of safety to the employees.
I am therefore of the view that an action by the plaintiff would have succeeded against his employer.
The next step is to apportion the negligence as between the defendant and the employer. The plaintiff submitted that any apportionment should be in the order of 5% to 10%. The apportionment was an assessment "of the causative potency of each act of negligence", said counsel for the plaintiff.
The defendant's submission was that the apportionment should be more like 50% to each tortfeasor, or perhaps slightly in favour of the employer.
In my view the employer's proportion of blame should be assessed at 20%. This is to recognise that the defendant engaged in a risk laden act of 'squeezing' her vehicle between the plaintiff and the line of cars parked on her right. Her highly negligent act must carry with it the majority of the blame for the plaintiff's injuries. Were it not for the high duty of care owed by an employer to its employees the contribution of the Council would have been less than 20%.
Final orders
The parties agreed on the methodology that I should apply if I reached the above conclusions. It was agreed that I should use the following formula:
(a) Calculate the damages against the defendant (agreed at $476,862).
(b) Calculate the damages against the employer (agreed at $280,000).
(c) Calculate the employer's percentage responsibility (20%).
(d) Calculate 20% of $280,000 ($56,000).
(e) Calculate 20% of $476,862 ($95,372.40).
(f) Calculate the difference between the two figures in steps (d) and (e) ($95,372.40 - $56,000 = $39,372.40).
(g) Deduct $39,372.40 from $476,862 ($437,489.60).
I make the following orders:
(1) Judgment for the plaintiff for the sum of $437,489.60.
(2) The defendant is to pay the plaintiff's costs of the proceedings.
I will hear the parties on any application to change the above costs order.
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Decision last updated: 27 March 2014
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