Thompson v City of South Perth
[2003] WASCA 106
•21 MAY 2003
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: THOMPSON -v- CITY OF SOUTH PERTH [2003] WASCA 106
CORAM: PARKER J
WHEELER J
MCKECHNIE J
HEARD: 17 MARCH 2003
DELIVERED : 21 MAY 2003
FILE NO/S: FUL 116 of 2002
BETWEEN: GERARD JOSEPH THOMPSON
Appellant (Plaintiff)
AND
CITY OF SOUTH PERTH
Respondent (Defendant)
Catchwords:
Occupier's liability - Owner of a waste disposal site - Obvious danger - Duty of care to visitors unloading rubbish - Duty to warn - Duty to erect barriers - Case turns on own facts
Legislation:
Occupiers Liability Act 1985 (WA)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant (Plaintiff) : Mr T N Cullity
Respondent (Defendant) : Mr J Eller
Solicitors:
Appellant (Plaintiff) : Trewin Norman & Co
Respondent (Defendant) : John Eller
Case(s) referred to in judgment(s):
Jones v Dunkel (1959) 100 CLR 298
Thompson v City of South Perth [2002] WADC 141
Case(s) also cited:
Buttita v Strathfield Municipal Council [2001] NSCCA 365
Clark v Ryan (1960) 103 CLR 486
Edith Cowan University v Czatryko [2002] WASCA 334
Franklins Self Serve Pty Limited v Bozinovska, unreported; NSWCA; 14 October 1998
Giorginis v Kastrati (1989) Aust Torts Rep 80233
Graham v Baker (1961) 106 CLR 340
Inverall Municipal Council v Pennington (1993) ATR 81234
Medlin v State Government Insurance Commission (1994-5) 182 CLR 1
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Paul v Rendell (1981) 34 ALR 569
Romeo v Conservation Commission of NT (1998) 192 CLR 431
Warren v Coombes (1979) 53 ALJR 293
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Woods v Multi-sport Holdings Pty Ltd (2002) 76 ALJR 583
Wyong Shire Council v Shirt (1981) 146 CLR 40
PARKER J: For reasons indicated by McKechnie J, I agree that this appeal should be dismissed.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of McKechnie J, with which I agree.
MCKECHNIE J:
Introduction
This is an appeal from the decision of Muller DCJ who dismissed the appellant's claim for negligence against the respondent.
The facts are fully set out in the judgment: Thompson v City of South Perth [2002] WADC 141.
In brief, on 20 June 1999 Mr Thompson went with his friend Mr Silvestri to unload a trailer load of rubbish at the Collier Park Waste Transfer Station. The trailer contained railway sleepers, building rubble and other waste material. The waste transfer station, in common with many others, required drivers to back their trailers near to the top of a sheer wall, in this case a drop of some 3 metres. The rubbish is then off‑loaded and dropped down onto the lower floor where, in this case, a disposal bin was located.
There are signs warning of the extreme caution which must be exercised because of the obvious danger. On this occasion Mr Thompson was unloading the trailer when a timber sleeper from the trailer dislodged. He stumbled and fell backwards over the wall onto the floor below sustaining serious injuries.
The central issue agitated on the appeal is whether the City of South Perth, as occupier of the waste transfer station, was in breach of its undoubted duty of care owed to Mr Thompson in failing to erect some form of hand hold over the drop so that a person falling may have something to grab onto. The other main issue is whether the text and position of warning signs was adequate.
It is argued that the absence of straps which could act as hand holds was negligence on the part of the City of South Perth. The fact straps were later erected provides evidence of negligence. The lack of explanation by the City of South Perth as to why straps were erected enables an inference adverse to it to be drawn.
It appears that sometime after the accident, a form of web strapping, similar to truck tie‑downs, was strung across the drop at the top of the wall. Photographs tendered at trial showed a strap at shoulder or head height and other photographs showed a strap in that position and also a strap at about mid‑height.
The circumstances of the accident
It is only necessary to advert briefly to the evidence.
(a) Mr Thompson
The trial Judge accepted most of the Mr Thompson's account. Mr Thompson was towards the back of the trailer and the kerb was behind him with the bin down below:
"… The branch came free from the pile, so I stepped back and lost my balance and I went to grab onto something but I was basically grabbing for fresh air. There was nothing to stop me from going over."
Mr Thompson fell backwards.
The Judge believed it more probable that Mr Thompson was trying to remove a piece of timber rather than a branch and that it protruded over the back of the trailer.
In cross‑examination Mr Thompson pointed out that he was unable to grab the post to his right which would have involved a mid‑air turn. When he was asked to give a reason as to why he stumbled, he said:
"… I would think because when I was pulling the branch or piece of wood - whatever it was - off, the wood came free, which basically put me off balance and I went to step back, and I tripped on the curb (sic).
… Nothing could have stopped me stepping backwards but I feel some sort of grab strap or rail running across there would have stopped me going over the edge or I could have grabbed it on the way down which would have stopped me falling.
… You could have one strap running across between the whole bay at waist height or something or a bit higher."
(b) Mr Silvestri
Mr Silvestri said in evidence:
"… I was on the left side, he was on the right side of the trailer and we started taking rubbish out and Gerard grabbed onto one of the branches. As he was grabbing, it kind of dislodged and his hand slipped off the branch and he lost his balance, fell backwards, and he went over the kerbing. … and landed on the ground down the bottom."
He expanded this:
"… Well, he pulled it out - tried to pull it out and kind of dislodged and made a sudden movement and he kind of lost his grip on the branch and as he lost, he went backwards, lost his balance and he went over the kerbing and he was just flapping as though he was trying to grab air pretty much and he fell backward …"
The evidence about the straps
The statement of claim set out as a particular of negligence that the City of South Perth failed "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".
Sometime after the accident, Mr Thompson returned to the waste station with Mr Silvestri and took some photographs of the scene. Other photographs, apparently taken by City of South Perth officers, were also tendered at trial. Some photographs showed one strap at about shoulder to head height of a person of average height, extending across the drop, while other photographs show two straps in position, the second being at about knee height.
In cross‑examination Mr Thompson described the strap as being similar to 2 tonne tie‑down straps.
In the course of Mr Silvestri's evidence, his attention was directed to the photographs. An objection was taken to Mr Silvestri giving evidence about the straps which led to an exchange between the Judge and counsel.
The Judge pointed out to counsel that Mr Silvestri did not know the resilience or strength of the strap or whether it was intended to be used as a hand hold in the case of an emergency or had some other purpose and was simply there on the day to prevent people using the tip for some particular reason.
In response to this observation counsel suggested that Mr Silvestri, as a truck driver, could give evidence as to the strength of the straps.
The Judge ruled that Mr Silvestri could not unless he had tested the strap. He could simply describe what he saw and what the material appeared to be.
In my opinion this ruling was, in the circumstances, correct.
Mr Silvestri said he had these kinds of straps on his truck to tie down loads. When he went to the waste transfer station later with his father, he unloaded rubbish and was able to do so notwithstanding that the straps were across the bay and they created no problem. The straps were about two inches wide and approximately one millimetre thick. In cross‑examination he was asked whether the straps in the photograph might have made a difference at the time of the accident. He said:
"… Well, his back would have probably landed on it and he might have had a chance, like, grabbing it or something like that.
… It was chest to neck high. He could have landed on it, like, on top of his shoulder or something like that."
The City of South Perth called Mr Forsman who was, at the time of the accident, a waste transfer station attendant. He unloaded what was left in the trailer after the accident.
Mr Forsman was asked about forms of restraint at the waste transfer station and in particular about strapping and said:
"… They talked about it and they weren't up when I - just before I left.
Mr Forsman had seen the webbing straps in place subsequent to the accident when he had visited the waste transfer station. He had been told by other employees that the webbing was truck tie‑down webbing guaranteed for 10,000 kilograms breaking strength.
The trial Judge's findings about handholds
At [39] the trial Judge noted that it was significant no expert evidence was led on the issue:
"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."
At [40] and [41] he said:
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 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."
Conclusion on the issue of handholds
A curious feature of the case was that no direct evidence was called by either party as to the purpose of the straps. An attempt was made to call in aid the principle set out in Jones v Dunkel (1959) 100 CLR 298.
In order for the principle to operate it is necessary for a plaintiff to first establish a ground in the evidence from which a favourable inference can be drawn.
For the reasons expressed by the trial Judge, I agree that Mr Thompson failed to establish his case about the absence of hand holds.
The inference that the presence of straps might have prevented the fall is not the more probable inference to be drawn from the evidence.
Warning signs
Mr Thompson complains that the text and positioning of the warning signs was inadequate. The trial Judge noted Mr Thompson's assertion that he did not see any warning signs. He found however, that if Mr Thompson did not see the warning signs he ought reasonably to have done so. Signs at the station read:
"EXTREME CAUTION
MUST BE EXERCISED
WHEN TIPPING AT TIP FACE
COVERED OR SAFETY FOOTWEAR
MUST BE WORN AT ALL TIMES
AT THIS FACILITY"
The trial Judge held at [38]:
"… 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."
This was not the case of a hidden danger, nor one which required reminders from the occupiers to careless invitees. Mr Thompson gave evidence that he knew of the drop and of the danger. He was not inadvertent to the risk. The trial Judge concluded the issue of liability saying at [42]:
"… 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."
This conclusion was open on the evidence. In my opinion this appeal should be dismissed.
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