| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : THOMPSON -v- CITY OF SOUTH PERTH [2002] WADC 141 CORAM : MULLER DCJ HEARD : 19-21 JUNE 2002 DELIVERED : 18 JULY 2002 FILE NO/S : CIV 890 of 2000 BETWEEN : GERARD JOSEPH THOMPSON Plaintiff
AND
CITY OF SOUTH PERTH
Defendant
Catchwords: Occupiers' Liability Act 1955 - Fall by plaintiff at tip face of refuse transfer station - Whether occupier liable for plaintiff's injuries - Low back pain persisting after fall - Whether injury causally linked to accident - Provisional assessment of damages
Legislation: Occupiers' Liability Act 1955
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr T N Cullity
Defendant : Mr J Eller
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : John Eller
Case(s) referred to in judgment(s):
Caledonian Collieries Ltd v Spears (1957) 97 CLR 202
Luxton v Vines (1952) 85 CLR 352
Newcastle Entertainment Security Pty Ltd v Simpson & Ors (1999) ATR 81-528
Trimboli v Prima Homes Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 960520; 9 September 1996
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139
Wheat v Lacon & Co Ltd [1996] AC 522
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Australian Safeway Stores v Zalzuna (1987) 162 CLR 479
Bryant v Fawdon Pty Ltd (1993) ATR 81-204
Commissioner for Railways v Ruptecht (1979) CLR 563
Giorginis v Kastrati (1989) A Tort Rep 80-233
Graham v Baker (1961) 106 CLR 340
Hackshaw v Shaw (1984) 155 CLR 614
MacPherson v City of Stirling, unreported; DCt of WA; Library No D980324;
McLachlan v Purchas & Ors, unreported; SCt of WA; Library No 980749; 21 December 1998
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Nagle v Rottnest Island Authority (1993) ATR 81-211
Newcastle Entertainment Security Pty Ltd v Simpson & Ors (1999) ATR 81-528
Papatonakis v Australian Telecommunications Commission & Anor (1985) 156 CLR 7
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Paul v Rendell (1981) ALR 569
Romeo v Conservation Commission of the Northern Territory (1998) 72 ALJR 208
Stannus v Graham (1994) A Tort Rep 81-293
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
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1 MULLER DCJ: In this action the plaintiff has claimed damages for injuries he suffered in an accident at the Collier Park Waste Transfer Station which was under the management and control of the defendant. In his statement of claim the plaintiff alleges that the accident was caused by the negligence of the defendant. The defendant has denied liability and asserts that the plaintiff's injuries were caused solely by his own negligence.
Evidence of the plaintiff 2 The plaintiff, who was born 8 August 1970, is single and was previously employed as a plant operator by Brambles at the Murrin Murrin mine site in Western Australia. On 20 June 1999 he accompanied his friend, Antonio Silvestri, to the Collier Park Waste Transfer Station in Thelma Street, South Perth. Silvestri, who was driving, had collected a trailer load of building rubble, tiles and other waste material before taking it to the waste transfer station. Both he and the plaintiff had been to the transfer station previously and were familiar with the layout and the procedure users had to follow. Silvestri had an entry pass and, after stopping at the entrance to the transfer station and showing his pass, was allowed to enter the site. He reversed his vehicle and the trailer into what appears to have been a covered offloading bay numbered 3. Photographs of the area show a number of covered unloading bays with parallel solid white lines on the surface indicating the area where vehicles are to be positioned for unloading to take place. The photographs reveal that bays 3 and 4 are adjacent to each other and that there is no barrier between them. There are, however, partial barriers separating bays 3 and 4 from the adjoining bays on either side. Those adjoining bays are presumably numbered 2 and 5. At the end of each bay there is a concrete lip or kerb running horizontally across the end of the bay. This lip or kerb marks the end of the upper level of the unloading ramp. On the other side of the concrete kerb or lip there is a substantial drop of approximately 3 metres. On the date of the accident a waste removal bin had been placed on this lower level with the rear side of the bin flush against the brick retaining wall separating the upper from the lower level. 3 The concrete lip or kerb I have already described runs horizontally along the edge of the upper level in bays 3 and 4. On either side of this concrete lip there is a wire mesh fence or cage separating the loading end of bays 3 and 4 from the adjoining bays. This wire mesh fence is in an L shaped configuration and prevents access from the upper to the lower
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level in the space between the edge of the concrete lip and the adjoining bay which, in this case, was bay 2 on the left and bay 5 on the right. 4 Silvestri reversed the trailer to the edge of the upper level in bay 3. Both he and the plaintiff got out of the vehicle and began unloading the material on the trailer. The plaintiff was standing at the left edge of the concrete lip or kerb looking from the upper level towards the lower level. Photographs received into evidence and marked Exhibits 1C, 1D and 1F show his approximate location. It appears that he was standing near or on the left hand solid white line looking from the upper to the lower level. He said he was about 2 feet inside the kerb. In that position he would have been very close to the wire mesh and steel pole fence or cage which runs from the edge of the concrete lip to the next bay. The plaintiff described how he began unloading the trailer with his back to the concrete kerb or lip. He said he tried to dislodge a branch that was buried beneath the top layer of the material on the trailer. While he was pulling the branch he described how it suddenly and unexpectedly became dislodged causing him to stumble backwards. He said he tried to grab something to arrest his movement backwards but there was nothing to clutch on to. Stumbling backwards he went over the concrete verge and fell from the upper level to the lower level into the space or gap between the left side of the bin and the left retaining wall running from the bottom to the upper level. He claimed he landed on his back and had difficulty breathing. Silvestri climbed down to the lower level and came to his assistance. An ambulance was called and the plaintiff was taken to Royal Perth Hospital. 5 On his admission to hospital the plaintiff said he underwent investigation and was placed on medication. He said at the time he suffered low back and chest pain. He remained in hospital for four days and was discharged on 24 June 1999. When discharged he was on crutches and was required to wear a back brace. He was also on medication to relieve his pain. On his return home he convalesced for several weeks. During this time he remained on the couch and took medication for his pain. He needed assistance to stand and move. 6 On 29 June 1999 the plaintiff was seen at the outpatients' department at Royal Perth Hospital by Dr Lewis Blake, who was a medical practitioner contracted to work for the plaintiff's employer. He was certified unfit for work for about three weeks and remained at home during this time. 7 While off work he continued to receive a wage under an income protection insurance policy but the amount he received was approximately
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$400-$500 a week less than what he would have been paid had he been working. 8 The plaintiff returned to work on 9 August 1999. Initially he was engaged in office work and light duties until September 1999 when Dr Blake certified him as being fit to drive a water truck. Prior to the accident he had been operating heavy machinery including front end loaders and bulldozers. This type of work subjected him to substantial jarring and vibration. Driving a water truck, however, did not expose him to jarring and he was able to manage working 12 hour shifts. 9 Throughout this time the plaintiff continued to suffer back pain which he described as manageable. At the time he had certain financial commitments he had to meet including payments under a home mortgage. While he did not suffer any reduction in his wage during the time he drove a water truck he was anxious to return to his regular employment as a machine operator and told Dr Blake in October 1999 that he no longer had any back pain. He agreed he had misled Dr Blake because he wanted to return to his former type of work and, in that way, ensure that he continued to be paid at the wage levels he had come to rely on. 10 Towards the end of 1999 Dr Blake certified him fit to return to plant operating duties and, after a short holiday in New Zealand, the plaintiff returned to work as a plant operator at the beginning of 2000 and operated front end loaders and bulldozers as he had before the accident. He said that initially he managed to do what the work required but became increasingly less tolerant to the constant back pain he was suffering from. He saw Dr Blake in mid 2000 and complained of back pain. He continued to operate heavy machinery but, at the end of 2000, decided to tender his resignation with a view to moving into a less physically demanding role such as that of a safety officer in which he had some previous experience. His resignation, however, was not necessary. His employer offered him a position as a safety and training officer at a wage higher than what he had been paid as a plant operator. He began work as a safety and training officer in January/February 2001. His backache continued to trouble him but was less acute than when operating heavy equipment. 11 In September 2001 he resigned from Brambles after an incident which resulted in his being evicted from site accommodation. He said he initially considered living off site and commuting to work but this was not acceptable to his employer.
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12 He returned to Perth still hoping to find another position as a safety officer with Brambles at another location. He continued to do casual work for Brambles. On two occasions he worked for a total of approximately 15 days doing light duties in the Kwinana area. He also tried operating a low loader but only managed to complete one 12 hour shift before his back pain became so acute that he realised he could no longer do that type of work.
13 Apart from this casual work the plaintiff has been unemployed since he left Brambles in September 2001. He has not been receiving any social security benefits but has relied on a loan he received earlier in order to live. 14 His injuries now appear to have settled. He occasionally suffers from a slight stabbing pain in the chest but his major complaint is his low back pain which he describes as constant. While recent investigations have revealed degeneration in his low back area he claimed he suffered no back pain prior to June 1999 despite the fact that he had been working on heavy machinery for approximately 8 years before the accident. 15 The plaintiff is no longer on any form of medication or other treatment. He described his back pain as manageable but said it was aggravated by bending or prolonged sitting. Realising his limitations he described how he applied for various positions in the safety and training field but had been unsuccessful to date. 16 The plaintiff's account of how the accident occurred was supported by the evidence of Antonio Silvestri. Silvestri confirmed that the plaintiff was standing at the left rear of the trailer looking towards the offloading area. He said the plaintiff had his back to the edge of the drop and was pulling on a branch that was partially under the top layer of material on the trailer when it became dislodged and he appeared to lose his grip and his balance before falling backwards into the gap between the left retaining wall and the left side of the bin. Silvestri was really unable to say how close to the drop the plaintiff had been standing before he fell. He did not recall the plaintiff trying to remove an 8 foot railway sleeper from the back of the trailer. 17 Silvestri subsequently returned to the transfer station at a later date and noticed that a strap had been placed horizontally at about waist or chest height at the unloading end of each set of bays immediately above the concrete lip or kerb. Each end of the strap was secured to the L shaped wire and metal pole fence that I have described earlier. Silvestri
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said the strap was approximately 6 cm in width and about 1 mm wide. He said he and his father were able to unload the waste material on the trailer by pushing it underneath the horizontal strap. 18 The only other witness to the accident whose evidence need be discussed is that of Roy Forsman. He had been employed as a transfer station attendant at the Collier Park Transfer Station on 20 June 1999 and was called by the defendant to give evidence. He claimed to have seen the plaintiff's vehicle and trailer backed into bay 3. He noticed that there were railway sleepers on the trailer and that one or more of those sleepers protruded over the back of the trailer and beyond the edge of the drop. He went to the office to collect a brush and on his return found that the plaintiff had fallen over the edge. He saw the plaintiff lying in the gap between the side of the bin and the adjoining wall and noticed that a sleeper approximately 4-5 feet in length was lying next to him. 19 There were two other significant aspects of Mr Forsman's evidence. Firstly, he said that he had not seen a person fall over the edge in the preceding 2 years while he had worked at the transfer station. He had heard of one incident where this had apparently happened and knew of another where a vehicle had been reversed over the drop. Secondly, he said that after he had left the Collier Park transfer station he went back approximately 12 months before the date of trial and noticed that two parallel straps of the kind that are normally used to tie loads in trucks had been strung horizontally across the face of the drop at waist and shoulder height. When shown the photograph depicting a single strap across the face of the tip he said he believed that strap was positioned at approximately shoulder height. Finally, he said that the concrete lip or verge was approximately 60 mm wide and 30 mm high while the drop was approximately 3 m.
The medical evidence 20 Upon his admission to Royal Perth Hospital the plaintiff was found to have sustained a transverse process fracture of L3 and a right lower lung contusion with a small loculated right paravertebral pneumothorax. On his discharge from hospital he saw Dr Lewis Blake who had been engaged by Brambles to attend to the medical needs of its employees. He was first seen by Dr Blake on 19 July 1999 and declared unfit for work for a period of three weeks. In a report dated 24 August 1999 addressed to the plaintiff's solicitors Dr Blake listed the plaintiff's injuries as follows: Fracture of the transverse process of the third lumbar vertebra;
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Contusion (probable fractured ribs) affecting the thoracic wall; Contusion of the lower lobe of the right lung; Right paravertebral pneumothorax; Soft tissue injury to the cervical spine and a contusion on the right buttock. 21 Subsequent investigations cast some doubt on the diagnosis of a fractured vertebra and contusion of the lower lobe of the right lung. What is significant, however, is that at this first consultation the plaintiff told Dr Blake he was suffering from back pain. 22 On or about 3 July 1999 Dr Blake certified the plaintiff fit to return to work in a non-manual capacity doing office or store duties which were physically and posturally undemanding. As time went by, however, the plaintiff's condition improved to the point where on or about 8 September 1999 Dr Blake certified him fit to undergo trial work driving a water truck. 23 On 27 October 1999 the plaintiff told Dr Blake his only residual symptom was pain to the chest wall and that he no longer suffered back pain. Relying on what the plaintiff said and his own observations Dr Blake certified the plaintiff fit to resume normal duties as a machine operator on 9 November 1999. 24 The plaintiff continued to see Dr Blake intermittently and in March 2000 again complained of pain in his anterior chest. He did not mention back pain on this occasion. When he next saw Dr Blake on 30 June 2000 he complained of low central back ache following prolonged sitting or driving. It is significant that this complaint was made only six months after the plaintiff returned to his normal duties as a machine operator. In Dr Blake's opinion it was reasonable to assume that the recurrence of back pain had been caused by the plaintiff's resumption of his normal duties. While there was no obvious clinical explanation for the plaintiff's back pain Dr Blake expressed the view that it was mechanical in the sense that it was likely to be triggered by physical activity or postural demands without there being any underlying pathology or clinical signs to explain the cause of the pain. 25 An MRI scan was undertaken on 15 January 2001. This scan revealed what were described as minor degenerative changes at the L4/5 level and L5/S1 level with a small left sided annular tear at the L4/5 level.
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There was, however, no evidence of disc protrusion or neural impingement. When questioned about these degenerative changes in the plaintiff's spine Dr Blake was guarded in the expression of his views. While he accepted that the annular tear might be the cause of some of the plaintiff's pain he emphasised that the degenerative changes were minor and there was little in the MRI report to reveal the cause of the plaintiff's low back pain. He agreed that, after being exposed to 8 years of vibration and jarring working on heavy machinery, the minor degenerative changes revealed by the MRI scan were by no means unusual and were certainly not inconsistent with a person of the plaintiff's age who had been exposed to such factors over a considerable period of time. What Dr Blake could not say was that the degenerative changes were productive of or contributed to the plaintiff's low back pain; nor could he say with any confidence whether the low back pain was due to the plaintiff's work related activity or the fall on 20 June 1999. 26 Paul Bannon, a neurosurgeon, gave evidence along similar lines to that of Dr Blake. His examination of the MRI scan led him to conclude that the plaintiff had not suffered any significant disc injury although there was a possibility that the annular tear might be productive of pain. In his view the degenerative changes revealed by the MRI scan fell within the normal parameters of a person of the plaintiff's age. Like Dr Blake he categorised the pain as mechanical and was unable to explain its cause. 27 The report of Nick Batalin, an orthopaedic surgeon, was tendered in evidence by consent. This report adds little to the evidence I have already analysed. Mr Batalin, like the medical practitioners who gave evidence, expressed the view that the spinal degeneration fell within normal parameters and had not caused any neurological symptoms. Like the other medical experts he was unable to diagnose the cause of the plaintiff's back pain. 28 What emerges from the medical evidence is that there is no pathological or clinical explanation for the plaintiff's low back pain; nor is there any evidence as to what caused it. The degenerative changes to the plaintiff's spine, while capable of causing pain, fell within normal parameters and did not cause any neurological symptoms. The plaintiff's fall might have precipitated his low back pain although there was no clinical evidence of this. 29 I am satisfied the plaintiff does suffer from low back pain. I have no reason to disbelieve his assertion that the pain is constant and is aggravated by exposure to heavy vibration and jarring when operating the
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types of machinery he was required to work with at Murrin Murrin. There is, however, no direct evidence as to the cause of his pain. It might, on the one hand, be a product of the degenerative changes and the annular tear revealed by the MRI scan. It could, on the other hand, have been triggered by his fall on 20 June 1999. In considering this issue I must decide whether the circumstances raise a more probable inference in favour of one cause or another. Luxton v Vines (1952) 85 CLR 352 at 358. Much will turn on my finding as to the credibility of the plaintiff. I found him to be a credible witness who did not seem prone to exaggeration. While he certainly told Dr Blake in October 1999 that he no longer suffered from back pain I am satisfied he did so because of his anxiety to return to the type of work he normally did. It is significant that, six months after returning to such work, when he was exposed to persistent jarring and vibrations during prolonged 12 hour shifts, he returned to Dr Blake and complained of a recurrence of his low back pain. He had, of course, first complained of low back pain on the first occasion he saw Dr Blake on 15 July 1999. Accepting, as I do, that the plaintiff is a truthful witness there can be no more probable explanation for his low back pain than the fall on 20 June 1999. I accept the plaintiff's evidence that he had not suffered from back pain before the fall. There is no other credible explanation as to why he should have suffered from this mechanical pain other than the fall. I am satisfied the low back pain was caused by the fall on 20 June 1999.
Issue of liability 30 In par 5 of his statement of claim the plaintiff alleged that the accident was caused by the negligence of the defendant and particularised the defendant's negligence as follows:
"Particulars of the defendant's negligence
(a) Failing to take any or any adequate precaution for the safety of the plaintiff when he was at the premises; (b) Exposing the plaintiff to a risk of damage or injury of which it knew or ought to have known; (c) Failing to erect an adequate barricade or hand hold around the upper level that was continuous and covering the section of the edge above the bin so as to prevent people using the area from falling to the lower level;
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(d) Failing to mark a line near the edge of the upper level instructing people on the upper level not to pass the line so as to prevent them from falling to the lower level; (e) Failing to place a sign on the upper level to warn people on the upper level to stand clear of the edge of the upper level; (f) Allowing or permitting the plaintiff to unload rubbish from the upper level when it was unsafe to do so by virtue of it being reasonably foreseeable that a person on the upper level could fall to the lower level without the adequate precautions mentioned in paragraphs (c) to (e) hereof." 31 The first question I have to decide is whether the defendant owed the plaintiff a duty to take reasonable care not to injure the plaintiff by any act or omission on its part. The second question is whether the defendant failed to perform that duty. In considering the question whether the defendant owed the plaintiff a duty of care the issue is whether the risk of injury to the plaintiff and others from the use of the defendant's premises was reasonably foreseeable. See Newcastle Entertainment Security Pty Ltd v Simpson & Ors (1999) ATR 81-528. I accept the submission made by counsel for the plaintiff that in its management and control of the Collier Park Waste Transfer Station the defendant clearly owed a duty to those using the facility to exercise reasonable care for their safety from the dangers which arose from the layout and other physical features of the refuse depot. Counsel for the defendant submitted that, in the particular circumstances of this case, no such duty was owed. In his submission it was unreasonable to conclude that the defendant ought to have foreseen the plaintiff would stand so close to the edge of the drop and physically pull material out of the trailer in such a way as to stumble backwards, lose balance and fall over the edge. In making this submission counsel relied on the decision of the Full Court in Trimboli v Prima Homes Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 960520; 9 September 1996. I believe that case is distinguishable. The situation there involved a plasterer who used an unfenced balcony on the upper storey of a house under construction to jettison a piece of building equipment which became entangled in his clothing and caused him to fall off the balcony. In that case, unlike as in the present, the injured party was acting in a manner that could not reasonably have been foreseen by his employer and I cannot accept that decision has any application to the facts under consideration.
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32 Given the defendant's admission that the waste transfer station was subject to its management and control the provisions of the Occupiers' Liability Act 1995 apply. There can be no dispute that the defendant had sufficient control of the premises that it ought to have realised that any failure of care on its part might result in an injury to a person entering those premises (s 2 of Act) Wheat v Lacon & Co Ltd [1996] AC 522.
33 The standard of care owed by an occupier of premises to those coming there is defined in s 5 of the Act as follows:
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premises from the danger as compared to the risk of the danger to the person." 34 It is now settled that the common law sub-categories of visitors to the occupier's premises, and the differing nature of the duty owed by the occupier to the visitor depending upon the sub-category of the visitor concerned, no longer has any application and that the basic effect of the current statute is to extend the principles of the common law of negligence to occupiers' liability. 35 In Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139, Malcolm CJ summarised the current position at 145: "The common law, ... had developed special rules regarding the duty of care owed by an occupier to persons entering his premises depending on whether the entrant was a contractual visitor, invitee, licensee or a trespasser. In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 the High Court of Australia held that the relevant duty of care should be based on the principles stated by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. In doing so, it abandoned the artificial distinctions and special risks regarding the duty of care which had been developed in the line of cases from Indemaur v Dames (1866) LR 1 CP 274 per Lillee J to London Graving Dock Co Ltd v Morton [1951] AC 727. This result flowed from Hacksaw v Shaw (1984) 155 CLR 614 and Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7. The purpose of the Occupiers' Liability Act was to achieve by statute what was achieved by the development of the common law by the decisions of the High Court. The statutory provisions did not create a new cause of action for breach of statutory duty. What they did was to replace the former common law rules regulating the standard of care owed by occupiers to persons entering the premises in given situations, by a single standard of care in terms of the general duty of care referred to in Donoghue v Stevenson. In other words, the statute did no more than reform the content of the duty of care at common law in the case of occupiers for the purpose of the common law action for negligence. Thus, s5(4) sets out a number of considerations relevant to
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'determining whether an occupier of premises has discharged his duty of care'. That duty of care is the duty, the content of which has been defined by the statute, but only for the purposes of simplifying the law governing the cause of action in negligence against occupiers. There is nothing in the statute which would have the effect that the cause of action in negligence at common law against occupiers has been converted into a cause of action for breach of statutory duty. The Western Australian Occupiers' Liability Act is based on the Occupiers' Liability Act 1957 (UK) and the Occupiers' Liability (Scotland) Act 1960. In any action in which the duty of care provided for in the Act is relied upon, the question will be whether the occupier has taken reasonable care in all the circumstances. This is, in effect, the same question as arises in any ordinary negligence case." 36 I accept that the drop of approximately 3 m was largely unguarded and constituted a danger due to the state of the premises. The critical question is whether the defendant has been shown to have failed to have taken such care as was reasonable in the circumstances to see that the plaintiff would not suffer injury by reason of such danger. In considering this question the remarks of Mason J in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47-48 are relevant: "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 inconvenient 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."
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37 The duty is certainly not an absolute one. As is said in Fleming's The Law of Torts, 9th ed at p 562:
"But however high, the duty is not one of insurance; it demands no more than the provision and maintenance of work premises in as safe a condition as reasonable care by a prudent employer can make them." In considering this issue and the provisions of s 5(4) of the Act I accept most of the plaintiff's account of how the accident happened. I believe it is more probable that he was trying to remove the piece of timber, rather than a branch, and that it protruded over the back of the trailer. What is significant is his assertion that he did not see any warning signs and there were no hand holds or barricades to stop him falling or assist him arrest his fall. 38 While the plaintiff claimed he did not see a warning sign I accept the evidence of Roy Forsman that there were warning signs displayed in prominent positions and that users of the facility could reasonably have seen such signs. One such sign was the subject of a photograph (Exhibit IL). The sign indicated that extreme caution had to be exercised when tipping at the tip face. Given the obvious and inherent dangers at the tip face it is questionable whether such signs were really necessary. I am satisfied, however, that the defendant did what was reasonably necessary to warn users of the facility of the dangers that existed at the tip face. 39 The main thrust of the plaintiff's argument was directed at the alleged failure of the defendant to barricade or provide suitable hand holds at the upper level of the tip face. In my view it is significant that no expert evidence was led on this issue. It is certainly true that chains were fastened to what appears to be the cage or fence on either side of bays 2 and 5. According to the witness Forsman, however, these chains were never placed in position. There is no direct evidence as to what their purpose was or how they were intended to be positioned. 40 The position in relation to the horizontal straps is different. These straps are clearly visible in Exhibits 1G, 1F, 1H and 1I. Those photographs were apparently taken on 19 August 1999. According to Forsman the upper strap was positioned at shoulder level and the lower strap at waist level. Subsequent changes to the system of work are relevant to the issue of whether the place was unsafe at the time of the accident. Caledonian Collieries Ltd v Spears (1957) 97 CLR 202. Counsel for the defendant, while conceding that these changes had been made, emphasised that no evidence had been led to establish why the
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straps had been put there or what their purpose was. The evidence was certainly silent as to whether the straps, if in position at the time of the accident, would have broken the plaintiff's fall or at least provided him with a hand hold he could have used to arrest his fall. There was no evidence as to how strong the straps were, their possible degree of movement, both lateral and vertical, when subjected to pressure, or whether they were positioned in such a way, or were stable enough, as to be likely to provide a suitable barrier or handhold to a person falling over the edge between them. Their installation after the plaintiff's accident does not per se, in the absence of evidence, demonstrate they were a reasonably practicable method available to the defendant to eliminate the foreseeable risk of someone falling over the tip face. There are other equally probable inferences. They might only have been installed as a visual, rather than a practical, barrier intended to reinforce the warnings of the obvious danger to users unloading vehicles on the edge of the drop; or to deter users from reaching or stretching over the tip of the drop when removing material from a vehicle or trailer. 41 I should mention in passing that photographs produced by the plaintiff that were taken at a later date show only a single strap running across the tip face. In some of these photographs the second parallel strap can actually be seen to have been detached. No evidence was led to explain why this was done and it would be unduly speculative to suggest what the reason or reasons might have been. It is questionable whether a single strap running across the tip face would necessarily break a person's fall or provide a hand hold. The evidence before the Court, however, is that parallel straps were initially in place in 1999. For the reasons I have given, however, I am unable to conclude that the more probable inference is that a set of parallel straps running horizontally across the face of the tip at waist and shoulder height would be likely to have broken the plaintiff's fall or at least provided him with a hand hold. 42 I am not satisfied that the defendant was negligent in failing to take reasonable steps to guard against the risk of users of the facility being injured by falling over the edge of the tip face. I believe this was a situation where the occupier was justified in relying on the user himself taking the necessary precautions. See Fleming (supra) p 562. In my view the plaintiff failed to take reasonable care for his own protection and this failure caused his injuries. I have come to this conclusion because the dangers facing the plaintiff at the tip face must have been obvious. If he did not see the warning signs he ought reasonably to have done so. I am satisfied on the evidence that he stood very close to the kerb or concrete lip at the edge of the drop. On his own evidence he was only 2 feet from
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the concrete verge. I also find that he lost his balance while trying to remove a railway sleeper from the back of the trailer. Given the evidence of the defendant's employee, Roy Forsman, that the pieces of timber were actually protruding over the edge of the drop I am satisfied that the plaintiff must have stood too close to the edge for his own safety. Given the dimensions of the railway sleeper I believe it was unreasonable for the plaintiff to stand with his back towards the drop so close to the edge and attempt to pull one of the sleepers from beneath the first layer of material in the trailer. By carrying out that manoeuvre when he was so close to the edge of the drop he ought reasonably to have known there was a real and substantial risk of his losing his balance and falling backwards. The conduct of the plaintiff in carrying out this manoeuvre was, in my view, the cause of his fall and the injuries he suffered.
Provisional assessment of damages 43 In the event of my finding on liability being found wrong I propose to assess the damages I would have awarded the plaintiff if I had found in his favour on liability.
Failure to mitigate damages 44 It was submitted by counsel for the defendant that since leaving his permanent employment with Brambles the plaintiff had failed to mitigate his damage. It was submitted that he had unreasonably made no real effort to find work he was capable of doing and had told his medical practitioner, Dr Lewis Blake, that he did not seriously intend looking for work until the resolution of his case. As against this the plaintiff tendered various correspondence which showed he had written to prospective employers trying to find work as a safety officer. I have no reason to suspect that his efforts to find work were not genuine. I am unable to conclude that the plaintiff refused to mitigate his loss.
Past loss of earning capacity 45 The accident occurred on 20 June 1999. The plaintiff claims damages for his past loss of earning capacity from the date of cessation of his employment on 5 September 2001 to the date of trial on 19 June 2002. During that period of 41 weeks he would have earned a net weekly wage of $967.42. 41 x $967.42 = $39,664.22.
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Over that same period he worked for a period of approximately 16 days and earned $6,547.50 which, when deducted from the previous figure, leaves a balance of $33,116.72. Interest at 4 per cent per annum for a period of 1 year totals $1,324.66. 46 I would have awarded the plaintiff $34,441.00 for past economic loss.
Future loss of earning capacity 47 What the plaintiff has lost is his capacity to return to his former occupation as a machine operator. I have already found that his low back pain will probably preclude him from operating heavy machinery in the foreseeable future. Given that his pain is mechanical in nature there may come a time when he is able to return to the type of work he used to do. But for the moment his capacity to do that work is lost. At the same time he is capable of performing work that does not expose him to lifting, bending or undue vibration or jarring. As a safety officer employed by Brambles he actually earned more than he had earned as a machine operator. He is actively seeking work as a safety and welfare officer and, given his previous prior experience, his prospects of finding such work seem reasonable. In these circumstances counsel for the plaintiff has asked the Court to compensate the plaintiff for his loss of "parameter of employment" and the chance of risk of future unemployment or less remunerative employment. I agree that is the only approach that seems feasible. While it is always difficult to select a figure that will reasonably compensate the plaintiff for a loss such as this I believe an award of $40,000 is warranted. 48 I would have awarded the plaintiff $40,000 for future loss of earning capacity.
General damages 49 Following the accident the plaintiff was hospitalised for 4 days and was on medication. When discharged from hospital he had to use crutches and wear a back brace. He continued to be on medication for some time and was immobile for several weeks. During his period of convalescence he had to be physically helped in his movements. His recovery after that was rapid. Within three weeks he had returned to his employment albeit on light work. Not long after that he began driving water trucks and at the beginning of 2000 returned to his former duties. The only residual effect of the accident, apart from a periodic stabbing
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pain in the chest, is his low back pain. At this stage that pain is manageable but is aggravated by bending and prolonged sitting. There is no evidence as to how the plaintiff's back pain has affected his social activities, although he did say he was no longer able to play golf. 50 I would have awarded the plaintiff $15,000 for pain and suffering. 51 Summary of provisional award:
Past loss of earning capacity $34,441.00 Future loss of earning capacity $40,000.00 General damages $15,000.00 $89,441.00 |