Sydney Night Patrol & Inquiry Co Pty Limited v Cilia & Anor

[2004] NSWCA 167

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Sydney Night Patrol & Inquiry Co Pty Limited v Cilia & Anor [2004]  NSWCA 167

FILE NUMBER(S):
40793/03

HEARING DATE(S):             26/05/04

JUDGMENT DATE:               26/05/2004

PARTIES:
Sydney Night Patrol & Inquiry Co Pty Limited (Appellant)
Colin Cilia (First Respondent)
Betona Corporation (NSW) Pty Limited (Second Respondent)

JUDGMENT OF:      Beazley JA Ipp JA McClellan AJA   

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC 6357/01

LOWER COURT JUDICIAL OFFICER:   Charteris DCJ

COUNSEL:
G M Watson SC/N J Owens (Appellant)
J P Gormly SC (First Respondent)
G P McNally (Second Respondent)

SOLICITORS:
Hunt & Hunt (Appellant)
Heazlewoods (First Respondent)
Ebsworth & Ebsworth (Second Respondent)

CATCHWORDS:
WORKER'S COMPENSATION - Injury to security guard - Where security patrol conducted on construction site - Whether duty of care involved employer attending the site - Whether inadequate instructions given by employer - Whether employee should have been given site plan - Whether inadequate lighting - Whether employer should have provided a torch - Whether area in question on site should have been roped off - Contributory negligence - Whether subcontractor of building site owed a duty of care to the employee.  ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.  Judgment amount of damages to be reduced from $375,938.84 to $368,659.05.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40793/03
DC 6357/01

BEAZLEY JA
IPP JA
McCLELLAN AJA

Wednesday 26 May 2004

SYDNEY NIGHT PATROL & INQUIRY CO PTY LIMITED v COLIN CILIA & ANOR

Judgment

1. IPP JA:  On 15 December 1999 the first respondent, to whom I shall refer as the plaintiff, was injured in an accident when he slipped and fell while working as a security officer for the appellant, to which I shall refer to as “SNP”.

2. The plaintiff sued SNP and the second respondent, to which I shall refer as “Betona”, for damages for personal injuries. Betona was a subcontractor on the site. Betona cross claimed against SNP and SNP in turn cross claimed against Betona. 

3. The trial judge held that SNP was negligent and its negligence caused the plaintiff’s loss.  His Honour also held that the plaintiff was guilty of contributory negligence and reduced his damages by fifteen percent.  His Honour held that Betona was not negligent and dismissed the plaintiff’s claims against Betona and SNP’s cross claim against Betona.  He awarded the plaintiff a substantial sum of damages.

4. SNP appealed, contending that the judge erred in four respects, namely, in finding that SNP was negligent and that its negligence caused the plaintiff to suffer loss, in finding that the plaintiff’s contributory negligence was only fifteen percent, in dismissing the claims against Betona, and in regard to a costs order which Mr Watson SC, who appeared for SNP, described as a Bullock order.

5. Initially, in the notices of appeal at least, the quantum of damages was challenged, but that part of the appeal has not been argued today.  It is common ground that the damages are to be reduced by an agreed sum to which I shall refer later.

6. The place where the accident occurred was a building site.  An extensive redevelopment was being undertaken on the site, involving the construction of a residential complex. 

7. The plaintiff was an experienced security officer, he had not previously been to the site.  He received his instructions to go there by telephone.  He was told by the relevant officer of SNP to go to the building site, find the site manager and talk to him about what needed to be done.  On the site, the plaintiff had difficulty in finding anyone who could give him instructions.  Eventually he found a security guard wearing an SNP uniform who told him in effect to sit in his car until all the workmen and builders had finished and that he should then do walking patrols on the site.  No other instructions were given to him.

8. During daylight hours the plaintiff’s shift commenced at 4.30pm.  He commenced his work by carrying out a patrol.  He walked on the roadway, on a sealed road, inside the building site. 

9. By the time he had finished his walk it was starting to get dark.  Although there were light poles in the area, no lights came on. There was no evidence to establish whether the lights were operating, whether they could be turned on. 

10. While the plaintiff was walking along the paved roadway in the building site, while it was light, he noticed the condition of the area.  He described it as “muddy and hilly”.  There was a heap of dirt in the area.  He noticed a drainage pit surrounded by concrete that was not covered.  The trial judge found that the plaintiff, by walking the site, was aware that there was much uneven ground about and particularly in the area in which he later fell.

11. After the plaintiff had completed his first patrol he returned to his car and sat there waiting, in accordance with the instructions he had been given.  At midnight he heard a door banging.  He was uncertain whether that had been caused by wind or whether there was an intruder on the premises.  He got out of his car and walked along the road, which I assume to be a paved road in the complex, and came to the area in which the accident occurred. 

12. The trial judge described what then took place as follows: 

    “The plaintiff stated that he intended to obtain a vantage site so that he could see if there were intruders in the premises causing the noise.  He states that he put his right foot on the kerb and his left foot on the dirt area.  He stated that there was a concreted or curved area and it was on that that he placed his right foot, although there was mud upon that structure.  His left foot was placed on a portion of dirt which was uneven and, I formed the view, involved him placing his heel in a depression or divot in that surface.  He turned off his torch and commenced to observe the area, looking for the source of the sound.  He had already observed that the ground was uneven and muddy in the area.  He stated that his left foot was only about half a metre from the ungrated pit to which I have earlier referred.  The plaintiff stated that his right foot slipped, causing him to fall towards the pit, which he tried to avoid.  After the fall he attempted to get up and he shone the torch upon his left foot which he observed was still stuck in the depression but that his foot was at an unnatural angle to his leg.  He was aware that he suffered a significant injury.”

13. Accordingly, it can be seen that the following matters contributed to the plaintiff’s fall.

    (a)Most importantly, the plaintiff placed his left foot in what was described variously as a hole or a depression or a divot.

    (b)          His right foot was lower down on the kerb than his left foot.

    (c)          The kerb had mud on it.

    (d)The plaintiff stood up, apparently to be as high as he could stand, in order to see over the mound of dirt which apparently obscured his vision.

    (e)          His right foot slipped on the kerb and he began to fall.

    (f)He fell towards the uncovered drainage pit which he attempted to avoid by leaning over.

    (g)As he fell, his left foot remained stuck in the divot and this must have aggravated whatever injuries he sustained.

    The combination of all these matters resulted in the plaintiff suffering a serious injury.

14. The trial judge found that SNP had breached its duty to the plaintiff in the following respects:

    (1)No person on behalf of SNP ever attended the site to see what work was actually involved.

    (2)Inadequate instructions were given by SNP to the plaintiff as to the work he was to do.

    (3)          No site plan was given to the plaintiff.

    (4)There was inadequate lighting provided to the plaintiff for him to carry out his work properly.

    (5)          Areas that should have been roped off were not.

15. Mr Watson challenged all these findings. 

16. He submitted that the omission by any person on behalf of SNP to attend the site was irrelevant.  He submitted that this was so because the plaintiff walked the site himself before the accident occurred and thereby learned probably more than he would have by receiving instructions from an SNP officer who might have attended the site.

17. I accept this submission, although I do think that there is more to attending the site than that.  By attending the site, SNP could have acquired some knowledge as to what equipment the plaintiff might have needed to carry out his duties and what other safety measures could have been taken.

18. The same argument was advanced in relation to the giving of the site plan and I accept Mr Watson’s submissions in that respect.

19. As regards the giving of instructions Mr Watson submitted that the instructions were obvious, it was unnecessary for SNP to explain to a senior security officer what he should do at a building site.  Carrying out the work normally undertaken by a security officer at such a site was well within the experience of such a person and it was unnecessary for SNP to say any more than that.  I consider that there is considerable force in these submissions.

20. Mr Gormly SC who appeared on behalf of the plaintiff submitted that the instructions should have encompassed a direction to the plaintiff to walk only on the paved road when carrying out a patrol.

21. There is some evidence in support of this proposition in unchallenged evidence given by an expert called by the plaintiff.  However, I accept Mr Watson’s submission that common sense demands acceptance of the proposition that there will be occasions when it will be necessary for a security officer to move away from the paved roads.  The incident in question on the evening when the accident took place was such an occasion.  The plaintiff had heard a noise that he considered to be suspicious.  He wished to take steps to see whether there was an intruder on the premises and for that reason he moved a short distance, probably less than a metre, with only one foot off the paved area.  I do not think any instructions in relation to where he should walk would have prevented him from doing this.

22. In regard to the absence of roping off, Mr Watson submitted that firstly, it would be impractical for SNP to rope off all possibly dangerous areas in the building site and secondly, even if the particular area where the depression was to be found had been roped off, it would have made no difference to the plaintiff’s conduct and the probabilities are that he still would have fallen.   Again, I would accept these submissions.

23. I now come to the lighting issue.  There was evidence from the expert to the effect that portable lighting systems should have been provided on the site by SNP.  Mr Watson challenged this.  He submitted that the evidence did not establish where the portable lighting should have been, in which areas it should have been installed and whether it was reasonable, generally, for SNP to provide portable systems.  Again, I consider that these submissions are correct. 

24. But there is more to the lighting issue than that. 

25. The usual practice of SNP generally was to assign torches together with other equipment for use by its security officers at the sites to which they were assigned for work.  The plaintiff had been working for SNP for four years as a security officer.  Most of the time he had done night work and, until this occasion, when the accident occurred, SNP always had provided a torch. That did not occur at the building site in question. 

26. On 15 February 1999 SNP failed to provide a torch at the site.  The plaintiff had with him a pocket torch that was his own.  It was described as a small AA metal torch.  During the trial a demonstration was carried out in the courtroom as to the effectiveness of the torch.  The lights of the courtroom were dimmed and the torch switched on.  The trial judge found as follows:

    “Although the batteries in the torch were obviously not strong, I formed the view that the light thrown by that torch was very limited indeed, even if it had had adequate power source”.

27. When the accident occurred it was so dark that the plaintiff could not see without a torch.  With the torch he could see the roadway and the guttering.  He could see where the pit was, although he could not see it clearly.  He could not see that the ground was uneven and did not see the hole or depression with the light of the torch.  The torch was not strong enough to illuminate the area sufficiently.

28. The plaintiff knew from his earlier patrol that generally speaking the ground in the area where he fell was not even.  But he did not know of the existence of the depression or hole into which he placed his foot.  He said that he had not seen that hole during his daylight patrol. 

29. To summarise, the plaintiff could see the kerb, gutter and road and knew that the area adjacent to the paved area where he was standing was uneven.  However, he did not know of the existence of the hole or depression and could not see it because of the limited illumination cast by his pocket torch. 

30. The hole, it seems to me, was a major contributing factor in the plaintiff’s fall and contributed to a significant extent to the seriousness of the injuries he sustained.

31. In my opinion, SNP was negligent in failing to provide the plaintiff with an adequate torch.  I would have thought that this conclusion is self-evident.  Employers taking due care for the safety of their security officers, who carry out security work at night, in areas that are not lit would undoubtedly, in compliance with their duty of care owed to their employees, provide the security officers with reasonably powerful torches that cast wide and strong illumination.  In this case no torch at all was provided.  It was SNP’s practice to supply a torch and for some reason there was a failure in this respect on the night in question.  In my view that failure caused, or at least was a major contributing factor to, the injuries suffered by the plaintiff.  For this reason I conclude that the judge correctly found that SNP negligently caused the plaintiff’s injuries.

32. I turn now to the question of contributory negligence.  The judge said in this regard that he was satisfied that the plaintiff did conduct himself somewhat imprudently in the way he carried out his duties, and had he devoted greater care to the risks at hand, the chances of his injury occurring would have been reduced but perhaps not eliminated.  For my part I have strong doubts as to whether the plaintiff was guilty of any contributory negligence whatever.  I see no negligence on his part in the way he stood in order to see further.  There is no appeal by the plaintiff as to the findings concerning contributory negligence but, in view of the conclusion to which I have come, I would not uphold SNP’s appeal on this issue.

33. The next matter with which I must deal is the appeal concerning the findings concerning Betona.  The evidence established that the development concerned was being undertaken by a joint venture between two construction companies who did not include Betona.  These companies subcontracted out various work.  Included in that subcontracted work was the building of the residential structures on the site.  Betona was the subcontractor in this respect.  Other contractors were also involved on the site and were contracted to both main contractors in relation to the carrying out of the work.  The judge concluded:

    “In my view the state of the evidence in respect of the contracts and the obligations of the various contracted parties is unsatisfactory and piecemeal at best.  It is difficult for this Court to arrive at any firm conclusion as to the terms of the contract alleged.”

    On this basis SNP failed to establish that control of the site vested in Betona to a sufficient degree for a duty of care to be imposed on Betona in relation to persons coming onto the site.  For that reason I would not uphold the appeal in regard to this issue.

34. Finally, apart from the damages question, there is the costs order.  This is essentially a matter of discretion.  In my opinion there were sufficient grounds for his Honour to exercise the discretion in the way that he did. I would not uphold the appeal on this respect. 

35. Accordingly, I would dismiss the appeal with costs.  In accordance with the agreement that is common ground, however, an order should be made reducing the judgment amount of damages from $375,938.84 to $368,659.05.

36. BEAZLEY JA:  I agree with Justice Ipp.

37. McCLELLAN AJA:  I agree with Justice Ipp.

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LAST UPDATED:             01/06/2004