Victorian WorkCover Authority v Dundas Ridge Pty Ltd
[2021] VCC 506
•6 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-03630
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| DUNDAS RIDGE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 22, 23, 24, 25, 26, 29, 30 and 31 March 2021 | |
DATE OF JUDGMENT: | 6 May 2021 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Dundas Ridge Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 506 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION – RECOVERY PROCEEDING
Catchwords: Recovery proceeding pursuant to s369 of the Workplace Rehabilitation and Compensation Act 2013 (“the Act”) – worker suffered injury to his wrist and ankle when stepping down from his truck at defendant’s container facility premises – claims his ankle rolled on the edge of a large pothole on the surface of unload area – claims the pothole was repaired shortly afterwards – other witnesses claim there was no pothole present, and the plaintiff’s injury was caused when he slipped when descending from the truck – evidence of a modest depression in the area where plaintiff fell – fracture to left wrist requiring surgery on a number of occasions – prospect of future fusion of the wrist – breach of general duty of care owed by the defendant to the worker; alternatively, breach of occupier’s duty pursuant to s14B of the Wrongs Act 1958 – whether the worker contributorily negligent – whether worker’s employer negligent – calculation of factors A and X in s369(3)(b) of the Act
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s369; Wrongs Act 1958, s14B
Cases Cited:Jones v Dunkel (1959) 101 CLR 298; Ronchi v Portland Smelter Services Ltd [2005] VSCA 83; Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121
Judgment:Plaintiff’s case fails – judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Manova | Hall & Wilcox |
| For the Defendant | Mr R Stanley | Norris Coates Lawyers |
HIS HONOUR:
Preliminary
1 Paul Saultry is now fifty-five years old and has worked as a truckdriver since he was nineteen. For many years, he has driven under contract for Patrick Port Logistics (“Patricks”). At Patricks’ suggestion, around 2008, he incorporated a company, Saultry Transport Pty Ltd. He was and is the company’s only employee. He drives the company’s only truck.
2 Mr Saultry’s work involved delivering shipping containers from and to Patricks’ Melbourne terminal and various container depots around Melbourne. One of Patricks’ clients was the defendant, Dundas Ridge Pty Ltd, trading as Melbourne Reefer Services (“MRS”).
3 Over the years, Mr Saultry delivered many containers to MRS’s “container park” located on Francis Street, Yarraville (“the premises”).[1]
[1]See aerial photograph – Exhibit A
4 On 3 October 2013, Mr Saultry drove his Kenworth truck[2] to various container depots, including to the premises. He made three deliveries or pickups to the premises that day. On the third delivery, around 4.45pm, he parked his truck at a parking area (“the unload area”) designated by a sign which read:
“DROP OFF ONLY
STOP HERE.”[3]
[2]See photographs – Exhibit A
[3]See photographs – Exhibit B
5 The procedure was to stop the truck around this sign, get out and unhook locking pins used to hold the container secure during transit. A forklift driven by an MRS employee would then approach the middle of the trailer attached to the truck and remove the container.
6 Mr Saultry said he always abided a “three points of contact” safety rule when descending from the cabin of his truck. That is, at all times, either both hands and a foot, or both feet and one hand, would be in a secure position holding a rail or on a step of the truck.
7 Mr Saultry says, on that day, as he lowered himself to the ground, his right foot touched the edge of a large pothole. His foot rolled inwards, and he fell onto his buttocks and used his hands to break his fall. He was immediately aware of an injury to his left wrist as it appeared deformed or bent. He also suffered an injury to his right ankle. He looked and observed a pothole, oval in shape, about a metre long, 75 centimetres wide and 15 to 20 centimetres deep.[4]
[4]Mr Saultry, and other witnesses in the course of their evidence, gave the dimensions partly in feet and inches and partly in metres and centimetres. I will use metric measurements for the sake of consistency.
8 There was a forklift driver nearby, who did not render assistance. A truck driver behind helped to unhitch the locking pins. An employee from MRS, Mr Jamie Quarrier, came to the scene. He found Mr Saultry in pain, irate and pointing to the ground as the cause of his fall. Mr Quarrier said he could only see a minor depression, not as deep as the heel of his boot.
9 Others, including another contract truckdriver, Mr Wayne Ryan, and an employee of Patricks, Mr Chris Gauchi, arrived and made observations of the area. They noticed potholes. Another truck driver, Mr Alan Pope, said there were potholes around the unload area at the time.
10 Mr Saultry was taken to hospital. The fracture to his wrist has required surgery on a number of occasions. Arthritis has developed and there is the prospect of a fusion of the wrist. Notwithstanding the injury, he has managed to return to work, driving his truck on a full-time basis.
11 Mr Ryan gave evidence that he was requested by Mr Saultry to take photographs of the unload area[5] the next day. It was accepted in fact these photographs were not taken until 9 December 2013. Photographs 18, 19 and 20 show several dark patches in the unload area. The plaintiff’s case is that those patches represent works undertaken by MRS after Mr Saultry’s fall to repair the pothole which caused his injury. Although the photographs were not taken until 9 December 2013, the plaintiff says the works were in fact carried out between the date of the fall and Monday, 7 October 2013, when a WorkSafe investigator, Mr Kevin Baxter, having been notified of the incident, came to MRS to inspect the area and report.
[5]Exhibit B
12 For the defendant’s part, a number of current and former employees of MRS gave evidence. The forklift driver who was stationed near Mr Saultry’s truck at the time, Mr Peter Moutzikis, said he observed Mr Saultry fall about one metre, while descending from his truck. Other MRS employees denied any cover up, or even a repair of any pothole after the incident. They said that the unload area was in a good, safe condition, and while potholes occasionally developed at the premises, they were fixed promptly by Mr Leigh Taylor, the general manager, using a backhoe, asphalt and a roller. They all said safety was an important issue at the site and if there were potholes in the immediate vicinity of the unload area, it would be a danger to the forklift drivers unloading heavy containers.
13 According to a WorkSafe “entry” report, the WorkSafe inspector, Mr Baxter, went to the site on Monday, 7 October 2013 at 9.15am. He was accompanied by an MRS employee, Mr Jarred Sharpe. According to the report, Mr Baxter said Mr Sharpe explained:
“… that an incident occurred between 4-5 PM on this date in that a driver from Patrick Ports Logistics sustained a wrist injury when [he] stepped out of his vehicle and fell.”[6]
[6]Joint Court Book (“JCB”) 196
14 In the report, Mr Baxter said he viewed the area where the incident occurred and said “I observed the ground surface where this incident occurred is flat and in adequate condition”.[7] The report said Mr Baxter discussed with management, procedures to ensure potholes were addressed as soon as practicable. Neither party called Mr Baxter to give evidence.
[7]JCB 196
15 Thus there are two diametrically opposed version of events as to the cause of Mr Saultry’s fall. One is the presence of a large pothole on the edge of which Mr Saultry turned his ankle. The other is that he failed to take sufficient care for his safety and slipped as he descended from his truck. A further issue arose as a result of the evidence of Mr Quarrier, that is, if the surface area where Mr Saultry placed his foot was the cause of his fall, what was the size of the pothole or depression where he placed his foot and did it represent a hazard?
16 Determination of the proceeding rests upon whether the plaintiff, the Victorian WorkCover Authority (“VWA”) which bears the onus, has proved, on balance, that the cause of Mr Saultry’s injury was the presence of a pothole which was of such size that to leave it unrepaired, was a breach if its duty of care.
17 Much turns upon the credibility of the various witnesses.
The proceeding
18 This case does not concern Mr Saultry’s claim for compensation for the injuries he suffered. That claim has resolved. This is a recovery action brought by the VWA against MRS pursuant to s369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The VWA seeks an order MRS indemnify it for an amount calculated in accordance with s369(3), as it claims the injury to Mr Saultry occurred in circumstances creating a liability in MRS to pay damages.
19 MRS denies the allegation, saying Mr Saultry’s injury arose as he fell from his truck and had nothing to do with the state of the ground surface in the area. Even if there was some depression where Mr Saultry stepped down, it was not of sufficient size or depth to be a hazard and as such its presence or the failure by MRS to repair it, did not constitute a breach of the duty of care it owed, either generally, or as occupier under the Wrongs Act 1958.
20 Further, even if the injury occurred in circumstances creating a liability in MRS, it says that Mr Saultry himself was guilty of contributory negligence in failing to observe the ground in the area; alternatively, for failing to maintain a secure hand or foothold on the truck while descending. It says further, Mr Saultry’s employer, Saultry Transport Pty Ltd, was also negligent in failing to provide Mr Saultry with a reasonably safe place and system of work.
21 In the event I do find the acts or omissions of MRS did create a liability to pay damages, then it will be necessary to assess the amount of indemnity calculated in accordance with the formula set out in s369(3) of the Act.
The issues to be determined
22 Having consulted with counsel, I consider the issues to be determined in this proceeding are:
(a)In relation to the premises:
(i)in Photographs 18, 19, and 20 of exhibit B, do the dark patches represent repair work to potholes in the area carried out by MRS shortly after the worker’s injury?
(ii)what was the nature of the ground surface in the unload area on 3 October 2013? (“the state of the premises”);
(b)On 3 October 2013, how did Mr Saultry suffer injury while descending from his truck? (“the cause of injury”);
(c)If Mr Saultry suffered injury as a result of stepping into a pothole, or some other uneven surface, was the defendant in breach of the duty of care owed either generally or as occupier for failing to keep the area in a reasonably safe condition? (“breach by the defendant”);
(d)If yes to Question (c), was Mr Saultry’s employer, Saultry Transport Pty Ltd, in breach of the duty it owed the worker to maintain a reasonably safe work environment? (“breach by employer”);
(e)If yes to Question (c), did Mr Saultry fail to take reasonable care for his own safety in failing to look to the ground before or during his descent from the cabin and/or failing to secure himself to the handrails or steps of the truck using the three points of contact rule? (“contributory negligence”);
(f)If yes to Question (c), and if there is a finding of negligence in answer to Questions (d) or (e), in what percentage is it fair and reasonable to apportion factor X, being the liability of the defendant, expressed as a percentage? (“factor X”);
(g)What is the amount of damages (assessed in accordance with the provisions of the Wrongs Act 1958) which the defendant is, or would have been, liable to pay, in relation to Mr Saultry’s injury? (“factor A”).
The state of the premises
23 The first issue which arises is to determine the state of the premises in the unload area at the time of Mr Saultry’s injury, in particular as to whether there were potholes present.
24 When the case was opened by Ms Manova, counsel for the VWA, it was said the photographs taken by Mr Ryan of the unload area,[8] showed clearly two darkened areas where recent repair works had been carried out. The photographs were said to have been taken the day after the incident, 4 October 2013.[9] This, it was submitted, was a clear admission by MRS not only of the existence of potholes, but of one of those potholes being the cause of Mr Saultry’s injury.
[8]Photographs 18, 19 and 20 of exhibit B
[9]Transcript (“T”) 23
25 However, at a later point in the trial, once the defendant’s container movement records had been analysed, it was accepted that in fact the photographs were not taken by Mr Ryan until 9 December 2013, some two months after the incident.
26 Ms Manova’s contention is that notwithstanding that delay, the repair work was carried out at some point between the date of the incident, and the date of the WorkSafe investigator’s inspection on 7 October 2013. This was because Mr Baxter’s report noted the ground surface area was flat and in adequate condition.
27 In his evidence, Mr Saultry said the weather on the day was fine and he was wearing Blundstone work boots. He described the makeup of the ground surface in the unload area as “asphalt, rock, broken, uneven”.[10] He said the area regularly had potholes, caused by truck movement and forklifts unloading the containers.[11] He said shortly before the incident, he complained to one of MRS’s forklift drivers about potholes in the driveway leading to the unload area.
[10]T56, L13
[11]T57, L19
28 According to Mr Sultry, over a period of time some of the potholes were filled and some not.[12] After he fell, Mr Saultry noticed his right foot was on the edge of a large pothole.[13]
[12]T71, L23
[13]T72, L24
29 Mr Saultry said the pothole was roughly as shown by the blue arrow marked on exhibit 1. There was no particularly designated area to stop the truck, and the sign in the area often moved.
30 An MRS employee, Jamie Quarrier, came to the scene in his car. He took Mr Saultry back to the office, where Mr Saultry explained that he rolled his ankle in a pothole. Mr Saultry said Jamie responded that they were moving to a new yard with no potholes.
31 Mr Saultry also telephoned his wife, Tina, Chris Gauchi, the depot foreman at Patricks, and Wayne Ryan. While Mr Gauchi and Mr Benjamin Cramond, Patricks’ safety officer, visited Mr Saultry the next day in hospital, Mr Cramond completed a Patricks’ “Incident Notification Form” by hand which described Mr Saultry’s feet giving way because they were on the edge of a pothole.[14] Further, a typewritten WorkSafe “Incident Notification Form”[15] was also completed by Mr Cramond. That document was used to notify WorkSafe of the incident. Both documents are dated 4 October 2013.
[14]Exhibit O
[15]Exhibit N
32 Mr Saultry said he had previously complained to Patricks about the state of the surface at the premises, although did not make a formal report. He did not make any report to MRS.
33 As stated, the determination of the issues in this trial depends in significant part upon an assessment of the credibility of the various witnesses. Save in relation to a matter to which I will later refer, I found Mr Saultry a satisfactory witness. It was put by Ms Manova, counsel for the VWA, that he stood to gain nothing by telling a “series of complex lies”[16] to the Court in this recovery proceeding. However, in my experience, once a witness gives a version of events about an incident, they are unlikely to give a different version, even in an unrelated proceeding.
[16]T759, L3
34 Mr Stanley was critical of Mr Saultry’s evidence on the following grounds:
(a) his evidence lacked corroboration from other witnesses and was inconsistent with some witnesses’ accounts;
(b) there was a lack of any reference to a pothole in the clinical notes of the ambulance officers and upon hospital admission on the day of the incident;
(c) there were inconsistencies about whether Mr Saultry asked Mr Ryan to take the photographs;
(d) there was unsatisfactory evidence and confusion as to the origin of the photographs presented to the Court;
(e) it was implausible that no enquiries were made as to the truck driver who assisted Mr Saultry unlatch his container immediately after the incident;
(f) Mr Saultry was unwilling to make appropriate concessions in cross-examination.
35 I am not satisfied these matters significantly affect the credibility of Mr Saultry. There were different versions of events given as to the size of the pothole and the place where Mr Saultry fell. I do not consider the lack of any reference to a pothole in the clinical notes as a matter of any significance. In my experience, clinical notes rarely record everything that is said and are never written in the expectation they will be combed over in a court at a later time.
36 In relation to the photographs, there was some confusion as to the origin of a range of photographs provided to the Court. Some were taken by Mr Ryan and some were not. There have been investigations by Mr Saultry’s solicitors, WorkSafe, and possibly others. It is no wonder many photographs have been provided and that Mr Saultry was unable to account for their origin. That is not uncommon in cases of this nature. There was no dispute the photographs set out in exhibit B were taken by Mr Ryan. His evidence was Mr Saultry had asked him to take them on the way back from the hospital. Mr Saultry said he did not telephone Mr Ryan as he was in hospital. I am of the view it is likely there was a request by Mr Saultry for Mr Ryan to take the photographs, although confusion about where Mr Saultry was when he made that request. Again, I do not see this as a significant credit issue.
37 As to the driver of the truck which was following Mr Saultry on the day of the incident, I do not see it is any significant credit issue arises because that driver was not called to give evidence. There is no evidence to suggest that driver had a clear view of Mr Saultry’s fall. In fact it would seem that would be unlikely given he was positioned behind Mr Saultry’s truck. While he rendered assistance by unfastening the container, there is no evidence to suggest Mr Saultry invited him to look at any pothole. The failure to make enquiries about this driver, or call him as a witness, neither affects Mr Saultry’s credibility, nor, in the circumstances, raises a Jones v Dunkel[17] inference.
[17](1959) 101 CLR 298
38 Mr Stanley further submits Mr Saultry failed to make appropriate concessions in cross-examination. I do not accept that to be the case.
39 Mr Saultry gave evidence in a relatively straightforward manner and was reasonably responsive in cross-examination. On occasions he was argumentative when propositions were put to him contrary to his version of events. While generally I accept his evidence, there are aspects of it which stand in contrast to the evidence of other witnesses, including the position where the incident occurred and the dimensions of the pothole into which Mr Saultry said he slipped. I will analyse this evidence shortly.
40 Evidence was given by Mr Alan Pope. He was another Patricks’ subcontractor truck driver. He had travelled on many occasions to the premises, sometimes several times in one day. He knew the unload area well. He said there were potholes in the unload area “pretty much all the time”.[18] They were patched and filled in from time to time. He said the biggest were probably up to 1.8 metres and up to 60 centimetres wide and 10 centimetres deep.[19] They caused the trucks to lurch.
[18]T178, L15
[19]T179, L1-7
41 Mr Pope went to the premises on 3 October 2013. He noticed Mr Saultry’s truck was there. He said it was parked a little past the unload area, off to the left. He was informed by someone at MRS that Mr Saultry had an accident. On that day, there were potholes of various sizes in the unload area, in particular two fairly large potholes. They were 10 to 15 centimetres deep, 40 or so centimetres wide (he was able to compare them to the width of the tyres of his truck). They were shallower at the sides.[20]
[20]T184-185
42 Mr Pope did not speak to Mr Saultry on the day. He has not seen him since that time. Mr Pope said that when he returned to the site several days after the accident, the road was patched and smooth.[21] When shown Photograph 19 from exhibit B, Mr Pope said the area had obviously been patched. He said the bollards in the photograph were not there in October 2013 from what he could recall. He said the premises to which MRS subsequently moved at Altona had a better surface which was flat and sealed.
[21]T186, L11
43 However, Mr Pope conceded his evidence might be wrong when it was put to him that Mr Saultry’s truck had not been moved from the unload area after the incident. Mr Pope could not be sure when he next went to the premises and observed the pothole repair.
44 Generally, I found Mr Pope to be a witness attempting to give a fair account of his observations of the premises. The significance of his evidence is that he said he observed potholes at the premises on a regular basis, some large, including on the day of the fall. However, his evidence that Mr Saultry’s truck was parked away from the unload area stands in contrast to the evidence of Mr Ryan and Mr Quarrier that the truck remained near the sign until moved later by Mr Ryan. Mr Pope, quite fairly, conceded he may have been mistaken in that regard. I do have reservations about Mr Pope’s evidence about the nature and extent of the potholes present in the area at the time. There were clearly potholes at the premises from time to time. Exhibit 2 shows potholes in the driveway leading to the unload area, although it was not clear who took that photograph, nor when. While I accept Mr Pope’s evidence that there were potholes at the premises, I do not necessarily accept that on 3 October 2013, there were two large potholes in the unload area. In my view, his evidence has been influenced by what he has perceived or been told are the two “patch up” areas in photographs.
45 Evidence was given by Mr Wayne Ryan, another contract truckdriver. He had known Mr Saultry for twenty-five years. In the twelve months before October 2013, he was at the premises every week, sometimes several times per day. He said the unload area was rough. There were potholes. Half a wheel of a truck could sit down in one of the potholes.[22] The truck tyres are 12 inches wide.
[22]T247, L9
46 On 3 October 2013, Mr Ryan received a telephone call from Mr Saultry saying that he had an accident, and requested Ryan come to the premises to pick up his truck. Mr Saultry told him he had tripped in a pothole.[23]
[23]T251, L17
47 On the day of the incident, Mr Ryan went to where the truck was located at the unload area, and saw potholes. He was taken to Photograph 19 of exhibit B, and said there was a pothole near the give-way sign, and another closer to the camera. He identified the different coloured ground as being where the potholes were. Mr Ryan marked the approximate area where the cabin of Mr Saultry’s truck was with a red dot on exhibit 1.[24] He thought that pothole was approximately 45 centimetres in circumference and approximately 10 to 15 centimetres deep, although his evidence as to the dimensions changed to some extent from examination-in-chief to cross-examination and was a little unclear.[25] He did not take any photographs on the day as he did not have his phone with him.
[24]A position different from that marked by Mr Saultry, who said the place where the incident occurred was marked with a blue arrow
[25]Compare T254, L18 and T315, L4
48 The next day, Mr Ryan said he went back to the premises and took a number of photographs.[26] Mr Saultry had asked him to take the photographs. He observed that the unload area had been resealed or resurfaced with gravel.[27] When he was at the site taking the photographs, Mr Ryan spoke to a forklift driver and asked him when MRS fixed the driveway. He said the forklift driver replied: “It’s because of your mate we had to fix it.”[28]
[26]Exhibit B
[27]T258, L25
[28]T292, L18
49 Mr Ryan was adamant that the photographs contained in exhibit B were all taken by him on 4 October 2013.[29] As things transpired, the photographs were not taken until 9 December 2013. While it is always difficult to recall dates with precision some eight years after an incident, nonetheless it is difficult to explain how Mr Ryan could be so sure of the date he took the photographs when in fact it was several months later. As a result, I conclude I am not able to rely upon Mr Ryan’s evidence, not only as to the date he took the photographs, but as to his evidence generally. In my view, his credibility was significantly affected. He showed himself as prepared to assist Mr Saultry’s cause. Accordingly, I am unable to rely upon his evidence as to the potholes he observed when he was at the premises on the day of the incident or shortly afterwards, the place where Mr Saultry’s truck was parked (marked by a red dot), nor his conversation with a forklift driver that repairs had been effected because of Mr Saultry’s injury.
[29]T297-298
50 Evidence was given by Mr Christopher Gauchi, who, at the time, was a depot foreman at Patricks. He said there was discussion amongst the truckdrivers about the potholes at MRS’s premises. Mr Saultry was one of the drivers who raised concerns about the potholes.
51 On 3 October 2013, Mr Gauchi received a telephone call from Mr Saultry saying he had fallen in one of the potholes at the premises. He drove to the premises and went into the office. There was a young man in the office named Justin or Jason. He said “Paul’s fallen into one of our numerous potholes … numerous f-ing potholes”.[30] Mr Gauchi said he telephoned Mr Ryan, using Mr Saultry’s phone, to come and drive his truck away. He did not go and look at the accident site.
[30]T371, L28-30
52 The next day, Mr Gauchi and Mr Cramond went to the hospital to see Mr Saultry, and the Incident Forms[31] were signed by Mr Cramond in his presence.
[31]Exhibits N and O
53 Generally, I found Mr Gauchi a satisfactory witness. He said he was informed by an MRS employee about Mr Saultry falling into a pothole. However, I am satisfied the language he said he used was unlikely to have been that of the MRS employee, either Mr Quarrier, or Mr Sharpe, at the time. I have reservations about his evidence in that regard.
54 Mr Leigh Taylor was the general manager of MRS over a long period. On 3 October 2013, the last container out of the premises was around 7.00pm. At the time, the sealed asphalt surface in the unload area was in good workable order. Mr Taylor set out the works undertaken in 2005 and following to the surface area of the premises.[32] MRS had a Safety Committee which met regularly. Minutes of that Safety Committee were tendered.[33] The minutes of the Safety Committee of November 2013 made no reference to Mr Saultry’s accident.
[32]Exhibit 4
[33]Exhibit 5
55 Mr Taylor would undertake daily inspections of the premises to ensure the surface was safe and usable. If there was an issue with a pothole, he would fix it himself or if it was more substantial, arrange for a contractor to come in to undertake repairs. At the premises, there was a frontend loader, a roller and a stockpile of asphalt to undertake the repairs. He was the only one who had a licence to drive the frontend loader. No repairs were undertaken without his knowledge or approval. Invoices relating to repair work undertaken by contractors were tendered.[34] Approximately $76,000 was spent in surface repairs around May 2013, although it was not clear where that work was carried out.
[34]Exhibit 6
56 MRS left the premises in May 2014 to go to new premises at Altona.
57 Mr Taylor’s son was born on 2 October 2013 and he was off work at that time. He was not at work on 3 October 2013.
58 Mr Taylor received a telephone call around 3 October 2013 from Mr Jarred Sharpe, the MRS operations manager, saying a driver had fallen from a truck. He informed Mr Sharpe to notify WorkSafe as that was required. An “Accident/Incident Report Form” dated 14 October 2013 was signed by him.[35] That Report Form noted a driver had slipped while exiting his truck. It was recommended the driver needed to assess his truck to ensure all slippery surfaces are covered with non-slip materials. To complete the form, Mr Taylor said he would have interviewed Mr Jamie Quarrier, then a container controller, Mr Sharpe, and Mr Peter Moutzikis, the forklift driver.
[35]Exhibit 10
59 After the investigation, Mr Taylor said there was no corrective action which needed to be taken. He could not recall anyone from Patricks coming onto the site after the fall.
60 Mr Taylor was not at the premises when the WorkSafe investigator attended on 7 October 2013. He said it would not have been possible to do any works overnight on 3 October 2013 as there was no staff present.
61 When taken to Photograph 19 of exhibit B, Mr Taylor said the darker shaded areas looked like a wet surface. It might have been an oil spill. It did not look like an asphalt repair as the edges were jagged. If there was a repair with asphalt, it would be done in a square. The gravel seen in the photograph might indicate some dirt or other material had come off trucks, trailers or containers.[36] If there was a “soft refill”, it would only last a short time, perhaps four or five trucks.[37]
[36]T483, L13
[37]T493, L21
62 Mr Taylor said around October 2013, the surface in the unload area was as depicted in exhibit 3. The opinion of the WorkSafe inspector as to the surface area coincided with his opinion.
63 Mr Taylor said that a pothole with a depth of approximately 15 centimetres would be a significant concern. A pothole with a depth of 10 centimetres would not be such a concern, but you would “certainly keep an eye on it”.[38] It was his job to inspect the premises, including the unload area every day.
[38]T466, L28
64 Mr Taylor could not recall any repair works being carried out to the unload area, nor traffic being diverted around any such repairs.[39] He could not recall any substantial repairs by contractors to the surface of the unload area. He said it was a solid area and did not require repairs.
[39]T480
65 Mr Taylor did not recall seeing any rectification work to the unload area when he returned to work after the birth of his son on 14 October 2013.
66 While Mr Taylor was not present at the premises at the time of the incident, his evidence was generally to the effect that safety was an important issue at MRS, that repairs were undertaken by him or outside contractors to the surface area when necessary, and at the time of the incident, the unload area was not marked by large potholes but in a safe and useable condition.
67 I found Mr Taylor a reasonable witness, although I found him somewhat protective of the interests of MRS and focused upon his assertion that there was no opportunity for any MRS employee to carry out any repairs to the surface of the unload area. It was not until the evidence of Mr Sharpe that it emerged that regularly the MRS premises were open on weekends and after hours when a request was made consequent upon the arrival of containers at the wharves.
68 Evidence was given by Mr Jamie Quarrier. He is now an assistant operations manager at MRS. In October 2013, he was a container controller. It was his job to manage movement of containers in and out of the premises. Most of his time was spent in the office.
69 At the time of Mr Saultry’s injury, Mr Quarrier was in the office. He was notified by two-way radio by Mr Moutzikis, the forklift driver. He was told a driver had been injured. He got into his car and drove to the unload area. He saw Mr Saultry standing next to the driver-side door of his truck, in quite a lot of pain. He looked pale and sweaty and was quite agitated.[40] Mr Saultry said he thought he had broken his wrist. When he asked what had happened, Mr Saultry “pointed to an indent in the ground and said that’s what he stepped on as he got out of his truck”.[41] He said “‘I stepped in that hole and it caused me to fall’”.[42] Mr Quarrier put witches hats over the area as he wanted to record the location. He observed a very small indent in the asphalt, although he did not thoroughly inspect it. It was about 25 millimetres to 30 millimetres in diameter in a bowl shape. He said it was very shallow, about 2 millimetres. He thought nothing that size could cause Mr Saultry to fall over. He measured the depth of the hole against the heel of his boot. The heel of his boot would not fit in the hole. He then took Mr Saultry back to the office. He denied telling anyone that Mr Saultry had fallen into one of MRS’s many potholes. He said the unload area was pretty level, flat and solid.[43]
[40]T525, L27
[41]T526, L11-12
[42]T526, L27-28
[43]T530, L29
70 The MRS records record the last container out on 3 October 2013 was around 7.00pm. There would have only been two staff on after 5.00pm, one being a forklift driver. He did not have any authority to authorise any repair works to the unload area.
71 Mr Quarrier said he told Mr Sharpe that he had put witches hats down for the purpose of the Incident Report. He would have expected the witches hats would have been left there for the WorkSafe inspector to look at the area.[44]
[44]T553, L8
72 When shown photograph 20 from exhibit B, he said he was not sure what might have caused the dark patches. It may have been material falling off trucks or containers, or maybe an oil spill.[45] He agreed it was possible it might be a combination of crushed asphalt and dirt to make a makeshift repair to a pothole. In cross-examination, Mr Quarrier accepted that it was most likely the dark patches were a mixture of gravel and dirt that had been put in the area and compacted.[46] In re-examination, he was less sure.
[45]T560, L12
[46]T564, L6
73 Mr Quarrier was surprised there was no reference in the MRS Incident Reports to the fact that the driver had blamed the ground for his injury.[47] He thought he would have told Mr Sharpe that.[48] He was a “little bit” surprised information about him placing the witches hats in the area and that the driver had blamed the ground did not turn up in the Incident Report.[49]
[47]T567, L23
[48]T568, L6
[49]T567, L26
74 I was impressed by the evidence of Mr Quarrier. He struck me as an honest witness attempting to give a fair account of his recollection of the state of the premises and events which occurred in October 2013.
75 Mr Quarrier was frank that when he arrived at the scene, Mr Saultry pointed to the ground, blaming its condition for his injury. He then took sensible steps, including placing witches hats in the area, and notifying Mr Sharpe that Mr Saultry had claimed the surface area was responsible for his injury. At one point in his evidence, he thought the dark patches shown in Photographs 18 to 20 of exhibit B could have been oil, or some other substance, although he accepted that it was possible, at one point in his evidence, likely, that they represented repairs undertaken. Having considered his evidence, I am not satisfied, at the end of the day, he accepted it was more probable that the area showed repairs. I conclude that he accepted it as a possibility, along with other possibilities.
76 Evidence was given by Mr Peter Moutzikis, the forklift driver present at the time of Mr Saultry’s injury. He left employment with MRS at the end of 2013.
77 When he was driving a forklift, he would position the forklift 4 or 5 metres back from the trailer, and when the pins were unlocked, move in and remove the container. He worked in the unload area about 70 per cent of the time, and knew it well. The surface in the area was in fairly good condition. If there were potholes in the area where he drove the forklift, he would not be able to take the containers off.
78 Mr Moutzikis said the handwritten Incident Report signed by him[50] was accurate. At the time of the incident, he was waiting in position to unload the container, looking at the “belly” of the truck, back 4 or 5 metres. He was observing the driver and had a good line of vision towards him. He said Mr Saultry “was exiting the truck and as he was exiting the truck, he slipped from a certain height and landed on the ground”.[51] Mr Moutzikis could not say whether a hand came off the rail or a foot was not properly secured on one of the steps. His foot was on one of the steps and as he came down, he slipped. The driver then got up and proceeded to unlock the container. He said the large mast on the forklift did not obscure his view.
[50]Exhibit 8
[51]T582
79 Mr Moutzikis accepted the handwriting on the statement was not his. He said he had a “photographic image” of what happened.[52] There were other details about the incident, including conversations he had, which he did not recall. He said he had a “straight on” view of the driver, and not at a 45-degree angle.[53]
[52]T600, L24
[53]T603, L3-5
80 He could not recall going to the area of the truck to look at the surface. He could not recall witches hats in the area. He could not recall where Mr Saultry’s feet or hands were at the time he fell. He could not recall how far above the ground Mr Saultry’s feet were at the time.
81 I found Mr Moutzikis an unsatisfactory witness. In cross-examination, the answers to questions were often confused, or unresponsive. He claimed that he had positioned the forklift looking at the “belly” of the truck and yet would not accept he would have been looking to his right at an angle to observe the driver.
82 His handwritten statement[54] is not written in the first person. He could not explain how, in the statement, he said the alleged uneven ground played no part in the driver’s accident. It was difficult to know how he came to such a conclusion as he could not recall either inspecting the area nor speaking to the driver. He said further, at no stage did the driver blame the uneven ground.
[54]Exhibit 8
83 Despite having a “photographic image” of the incident, and while he was adamant the driver had fallen before his feet touched the ground, he was unable to recall anything about where the driver’s hands or legs were positioned at the time, or how far above ground he was when he fell.
84 I do not accept Mr Moutzikis’ version of events as to what occurred in the incident.
85 The final witness called on behalf of the defendant was Mr Jarred Sharpe. He is currently an operations manager for MRS and has held that position from September 2012. He said the premises, including the unload area, was regularly inspected. Mr Taylor undertook repairs to the surface, but they were minor. Mr Taylor was the only one who drove the backhoe. If there were potholes in the area, it would throw the forklift drivers around.
86 On 3 October 2013, he was at work and heard of Mr Saultry’s injury. He thought he would have been told by Mr Taylor to obtain a statement from any witnesses as to what had occurred and record it. Mr Sharpe recalled speaking to Mr Moutzikis, he thought the next day, in the office, and asked him what happened. Mr Sharpe said Mr Moutzikis told him in his own words and he recorded what was said. He said all the information from his statement was from Mr Moutzikis.
87 He said that shortly afterwards, WorkSafe were notified, although he could not recall by whom. On the following Monday, 7 October 2013, the WorkSafe investigator came to the premises. Mr Sharpe took him to the area near where the sign in the photographs was. The WorkSafe officer looked at the area, watched the operations as the trucks were being unloaded and took photographs. The WorkSafe officer had his own procedures, and Mr Sharpe did not interfere. He looked at the ground where the incident occurred.
88 Mr Sharpe denied there was any work done to the surface in that area after Mr Saultry’s injury and before the WorkSafe officer attended. Mr Taylor was the only one who had a licence to drive the backhoe. Mr Sharpe did not direct any work be undertaken to the area. He said any potholes in the area were repaired straight away.[55]
[55]T655, L8
89 It was put to Mr Sharpe that three truckdrivers had given evidence that there were potholes around the unload area. He was asked whether from his specific memory he was able to recall to the state of the unload area as of 3 October 2013. He said he could not.[56]
[56]T660, L2
90 As to the conversation Mr Sharpe had with Mr Quarrier, he said Mr Quarrier told him there had been an accident and Mr Quarrier confirmed Mr Moutzikis’ version of events; that is, the driver had fallen out of his truck.[57] He could not recall being told anything about the driver’s version of events. Mr Sharpe did not get a statement from Mr Quarrier as to what he saw in the aftermath of the incident. He denied that was because he did not want a different version of events to be available to the WorkSafe investigator.
[57]T663, L12, L27
91 Around the time of the incident, Mr Sharpe said there was overtime done on Saturdays or Sundays if there were bulk container movements.[58] Very often the premises was open on weekends. There were also midnight shifts.[59] If a ship were to arrive at the wharf and containers were to be unloaded, MRS and others would be notified. This occurred at weekends and at night.[60]
[58]T675, L22
[59]T676, L12
[60]T676-677
92 I was unimpressed with the evidence of Mr Sharpe. His evidence is in contrast to that of Mr Quarrier, who I accept told Mr Sharpe that the driver had blamed the surface area for his injury. I prefer the version of events given by Mr Quarrier and that Mr Sharpe was told that Mr Saultry had blamed the ground for his fall.
93 Further, his evidence about the statement he took from Mr Moutzikis is unsatisfactory. He claims he wrote down the words that Mr Moutzikis used. From the handwritten statement, that is clearly not the case. Much of the statement is Mr Sharpe’s recounting of what Mr Moutzikis said.[61] Further, it was fanciful that it was Mr Moutzikis’ words that he “do solemnly declare that this statement is true and correct”.[62]
[61]T666-667
[62]Exhibit 8
94 I am of the view that Mr Sharpe was aware of the attribution of blame by Mr Saultry to the surface area. He determined to accept the version of events given by Mr Moutzikis, without making any reference to what Mr Quarrier had told him the driver said. While Mr Baxter, the WorkSafe investigator, would undoubtedly have made his own examination of the unload area, I am of the view the version of events as set out in Mr Baxter’s report, was, at least in part, a reflection of the version of events Mr Sharpe had told him occurred.
95 I have concluded that what occurred was that Mr Sharpe, knowing from the conversation with Mr Quarrier that the driver blamed the state of the surface as causing his injury and that witches hats had been deployed, chose to accept Mr Moutzikis’ version without passing that other version onto others, including Mr Taylor and the WorkSafe inspector, Mr Baxter. He should have done so.
96 Notably, the incident did not appear in the OH&S Safety Committee minutes of November 2013. I do not accept Mr Sharpe fabricated or was dishonest about what he had been told, but rather chose to accept a version of events which best suited MRS’s interests.
97 Having analysed the evidence of the various witnesses, the first matter to determine is whether Photographs 18, 19 and 20 of exhibit B show repair work to the surface of the unload area.
98 Ms Manova contends that the dark patches represent repairs undertaken between the date of the incident, and the inspection by Mr Baxter around 9.15am on 7 October 2013.
99 Upon first observation, the two dark patches seen on Photograph 19 of exhibit B appear to show a relatively recent repair of the surface area using asphalt or some other like substance. That is particularly so, given there would appear to be small pieces of rock or gravel in the area around the patches which look like some overflow from the repair.
100 However, a number of other observations should be made about these photographs. They were taken with a mobile telephone and the quality is not particularly good nor are the images particularly clear.
101 While small pieces of rock or gravel do appear to surround the patches in Photographs 18, 19 and 20, other photographs[63] show similar small pieces of rock or gravel, but in other areas. Combining this with the evidence of Mr Taylor, who said that when potholes were repaired, they were repaired in a regular square patch rather than with jagged edges, as otherwise the area would unravel, I am unable to conclude that the small pieces of rock represent part of the repair material which has moved around the surface.
[63]Exhibit B, Photographs 12, 15 and 17
102 Also, there were other possible explanations from various witnesses as to what the dark patches may represent. It would appear from a number of photographs, including Photographs numbered 1 to 8, 10, 11, 12 and 13 of exhibit B, that at the time Mr Ryan took them, it was either raining, or the ground wet from recent rain. It is possible there were areas of moisture which made the photograph look darker. Also, it would not be unexpected, given the regular vehicular traffic, that oil could accumulate in the unload area. There could also possible be some other material which may have been discharged from the containers or the trucks as they unloaded.
103 Of significance is the report of Mr Kevin Baxter.[64] According to his observations, the ground surface where the incident was said to have occurred was “flat and in adequate condition”.[65] The WorkSafe “Incident Notification Form” prepared by Mr Gauchi and Mr Cramond the day after the incident, 4 October 2013,[66] the purpose of which was to notify WorkSafe of the incident, made clear reference to the fact that the driver tripped in a pothole as he exited the vehicle. While Mr Baxter was not called to give evidence, it is likely he was aware of that allegation given the reference in his own report to a discussion with management about potholes in the yard being addressed as soon as practicable. In those circumstances, had he perceived the darkened areas as a recent repair, I am of the view it is likely that would have made its way to his report, or that he would have made further enquiries about how the repair came to be effected, given it would have looked fresh at the time. The absence of any such reference mitigates against the darkened areas representing a recent repair using asphalt or some like substance.
[64]Exhibit 7
[65]Exhibit 7
[66]Exhibit N
104 In all the circumstances, I cannot be satisfied, on balance, the darkened areas represent a repair carried out by MRS in the period between the incident and Mr Baxter’s attendance at the premises.
105 The next issue to address is as to the nature of the ground surface in the unload area at the time of the incident. Mr Saultry, Mr Pope and Mr Ryan all gave evidence they regularly encountered potholes at the premises including in the unload area. Mr Gauchi said that was a topic of regular discussion with truck drivers at Patricks. To the contrary, the evidence of Mr Taylor and other MRS employees was to the effect that while potholes did develop, they were promptly repaired and the surface of the unload area was in a satisfactory and reasonable condition in October 2013. Mr Taylor went so far as to say he could recall no repairs, either by himself or contractors, of any potholes in the unload area. Other witnesses said that had there been potholes of any significance, they would have caused the forklifts carrying large and heavy loads to lurch and make it difficult to unload the containers.
106 It is evident from some of the photographs tendered that there were indeed potholes on the surface at the premises from time to time. That is shown in exhibit 2 and Photographs 5, 6, 9, 12, 14, 21 and 22 of exhibit B. While perhaps all these photographs do not represent “potholes”, they do indicate, in part, a rough and uneven surface with depressions in places.
107 While the various surface earthworks invoices tendered[67] are not specific as to the work undertaken at the premises, it is evident that once a year or so, significant surface works were carried out at the premises, as recently as May 2013, involving the laying of asphalt. It is difficult to accept that this was for any other reason than to repair areas which required attention.
[67]Exhibit 6
108 However, these matters, of themselves, do not mean there were potholes in the unload area on the date of Mr Saultry’s incident.
109 For the reasons given, I do not accept the evidence of Mr Ryan, Mr Sharpe nor Mr Moutzikis. I have reservations Mr Pope can accurately recall the surface of the unload area at the time of the incident. Mr Taylor was not present at the time, nor for some weeks afterwards. The witnesses who are more likely to have an accurate recollection of the state of the surface in the area are Mr Saultry and Mr Quarrier.
110 Mr Saultry’s version is that he suffered injury when his foot twisted as it came into contact with the edge of a large pothole. Notably, the pothole he describes is of different dimensions to that described by Mr Ryan, and in a different position. Both those versions stand in contrast to the evidence of Mr Quarrier who, while he noticed a depression in the area, it was shallow, less than the height of his boot heel.
111 Again of significance is the report of Mr Baxter. Ms Manova said I should not be satisfied, given that Mr Sharpe and Mr Moutzikis had decided that Mr Saultry had fallen from his truck, a version of events which most favoured MRS, that when Mr Baxter arrived at the premises, he was directed by Mr Sharpe to the correct area where Mr Saultry fell. He was shown a different area. To accept this proposition would place Mr Sharpe in a position of having actively undermined the WorkSafe investigation and deliberately falsified information. I am not satisfied, even accepting my reservations about his credibility, that he would undertake such a course. Further, if the VWA sought to establish that proposition, Mr Baxter ought to have been called to give evidence. As Mr Stanley pointed out in addresses, MRS was content to let Mr Baxter’s report stand as evidence without challenge. Its findings aligned with the defendant’s case. However, if the VWA sought to challenge Mr Baxter’s findings in relation to the surface in the unload area, or that he was directed to inspect a different area without potholes, then he ought to have been called to give evidence.
112 An affidavit of Ms Candice Carrasco affirmed 30 March 2021[68] was tendered. She is the solicitor for the VWA. That affidavit refers to investigations made by Ms Carrasco as to “handwritten or informal notes of the inspector at the time of the inspection or photographs taken”, none of which were able to be produced. She was also advised that Mr Baxter left the employment of WorkSafe in September 2014. However, the affidavit makes no reference to any steps taken to locate Mr Baxter’s current whereabouts. While it is likely his recollection of the events in 2013 would be hazy, nonetheless, with the aid of maps, photographs and his report, he could have been asked as to the area he inspected and what he observed. I am of the view that as a result of the failure by the plaintiff to call Mr Baxter, I may infer, in accordance with the principles of Jones v Dunkel,[69] that had he been called, Mr Baxter’s evidence would not have assisted the plaintiff.
[68]Exhibit AA
[69]Supra. See further Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at paragraph [81]; Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121 at paragraph [28]
113 Whether or not there were potholes in the unload area at the time is not so much the issue. The issue is whether a pothole caused Mr Saultry’s injury when he turned his ankle on the edge of it. I will examine this issue in determining how Mr Saultry suffered injury
The cause of injury
114 Of the two versions of events as to how Mr Saultry came to suffer injury, I reject the version given by Mr Moutzikis. I found him an unsatisfactory and unreliable witness. I do not accept he was parked in a position directly aligned towards Mr Saultry’s truck’s cabin, but was rather at some point 4 or 5 metres back at about the middle of the trailer of the truck. His view of Mr Saultry was at an angle towards his right.
115 The fall would have happened in a very short space of time and from the distance away from the cabin of the truck, and the manner in which he gave his evidence, I am not satisfied he had the “photographic image” of the event as he claims. Undoubtedly Mr Saultry “fell”, but that fall did not commence until he put his foot on the ground. I reject Mr Moutzikis’ version of events.
116 Mr Saultry’s evidence that his right ankle rolled as it touched the ground is supported by the evidence of Mr Quarrier that when he arrived some short time later, Mr Saultry was in pain, distressed and pointed to the surface area as the cause of his injury. It would have required a level of sophistication and guile to, in that short space of time, have determined to invent the ground as the reason for his fall rather than his own lack of attention in maintaining a secure hold on the steps or rails of the truck. I am not satisfied that Mr Saultry possessed that sophistication or guile.
117 Further, when he was seen the next day in hospital by Mr Gauchi and Mr Cramond, the Incident Notification Forms[70] provide details of the incident confirming the pothole as the cause of the fall. The Worker’s Claim Form signed 8 October 2013[71] gave the same explanation. These documents provide support for the version of events as given by Mr Saultry.
[70]Exhibits N and O
[71]Exhibit L
118 I accept, for these reasons, that the cause of Mr Saultry’s fall was a pothole, depression or uneven surface of the unload area when he stepped from his truck on 3 October 2013.
119 However, that is not the end of the matter. The defendant contends that even if the cause of injury was the surface in the unload area, that pothole or depression was so modest that it would be unreasonable to expect MRS to have identified it and taken some action to repair it.
120 Mr Saultry’s evidence was that the pothole was substantial, both as to size and depth. Different evidence was given by Mr Ryan as to the size of the pothole he observed, and by Mr Pope as to potholes generally in the area. There was little uniformity between these witnesses as to the dimensions of the pothole, save to say they were large. Mr Quarrier’s evidence was that the area pointed out by Mr Saultry was a depression only 30 millimetres’ deep and less than the depth of the heel of his boot.
121 I am not satisfied that the evidence of either Mr Ryan or Mr Pope as to the size of the pothole is reliable for the reasons stated. While I found Mr Saultry a satisfactory witness, I am not satisfied that his description of the size and depth of the pothole can be relied upon. I am of the view that what has occurred is that undoubtedly there were potholes from time to time at the premises, including upon the driveway down which trucks passed to get to the unload area, and on other surfaces. Those potholes would have, until repaired, caused problems for drivers and I accept the trucks would “lurch” from time to time, in particular traversing potholes the size of those shown in exhibit 2. I further accept that the potholes were probably a subject of discussion amongst the drivers at Patricks, including Mr Gauchi. While I am satisfied the cause of Mr Saultry’s injury is some depression or unevenness in the surface of the unload area, I am of the view that Mr Saultry has transposed his recollection and image of potholes in other parts of the surface area of the premises, to that area onto which he put his foot on 3 October 2013. Possibly out of annoyance or dissatisfaction with MRS because of the general state of the premises, or possibly in an attempt to heighten the degree of culpability of MRS, he has come to the view that the area into which he put his foot was indeed a large pothole. I am not satisfied that was the case.
122 The main reason for coming to that conclusion is, again, the report of Mr Baxter. There is nothing from the evidence which causes me to doubt his conclusion that the ground surface in the area where the incident occurred was “flat and in adequate condition”.[72] I am not satisfied from the evidence that he was taken to another area by Mr Sharpe where the surface, in contrast to the unload area, was smooth and sound. I am not satisfied that any MRS employees performed repair work to the unload area before Mr Baxter’s visit.
[72]Exhibit 7
123 Had there been a pothole of the approximate size and dimensions as was said by Mr Saultry, then Mr Baxter would undoubtedly have made reference to it and possibly taken some action.
124 I prefer the evidence of Mr Quarrier that the size of the depression or hole at the point where Mr Saultry fell was only modest.
Breach
125 Given I am satisfied the cause of Mr Saultry’s injury was him stepping upon a part of the surface of the unload area, it is necessary to determine whether the fact that that surface area was uneven and had not been repaired by MRS gives rise to a breach of its duty as occupier in failing to take steps to ensure that Mr Saultry was not injured by reason of the state of the premises or things done or omitted to be done in relation to the state of the premises; alternatively, in breach of its general common law duty of care to take reasonable steps against the risk of foreseeable injury.
126 It would have been known to MRS that the unload area was an area where truck drivers regularly descended from their trucks and walked around to unlock their containers for removal by forklifts. It was foreseeable that any significant potholes, depressions or uneven parts of the surface area could lead to a truck driver suffering injury. Much depends then upon the size, in particular the depth of the area onto which Mr Saultry placed his foot.
127 Again, the evidence of Mr Quarrier and the report of Mr Baxter are significant.
128 Mr Quarrier said the depression was so minor that he could not understand how it could have caused Mr Saultry’s fall. While he placed witches hats in the area, and reported the matter to Mr Sharpe, that was more for the sake of reporting the incident, than to warn other persons in the area that there was a significant depression or pothole.
129 Had the depression been anything more than modest, I would have expected it would have appeared in the report of Mr Baxter. His description of the area as flat and in adequate condition would indicate that whatever the size and depth of the depression or hole was, it was only very modest.
130 It could not be expected in a premises such as this that the surface area would be always completely smooth and without indentation, depression or even small holes. It was an area where very heavy vehicles traversed regularly. It would be expected there would be some small rises, falls indentations and unevenness in the area.
131 However, I am not satisfied the depression onto which Mr Saultry put his foot was such as to cause a reasonable occupier in the position of MRS to take steps to repair it or cover it.
132 In those circumstances, there was no breach by MRS of its duty, either at common law or as occupier.
133 Given my findings, it is not necessary for me to determine any negligence on the part of Mr Saultry, or his company, nor to make any assessment of factors X or A.
134 There should be judgment for the defendant.
135 I shall hear from the parties as to costs.
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