Voigt v v/Line Pty Ltd
[2021] VCC 5
•20 January 2021
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04671
| WARREN JAMES VOIGT | Plaintiff |
| v | |
| V/LINE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 2 and 3 December 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 20 January 2021 | |
CASE MAY BE CITED AS: | Voigt v V/Line Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 5 | |
REASONS FOR JUDGMENT
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Subject: NEGLIGENCE
Catchwords: Left knee injury – stepdown from a veranda to ground below – whether there existed a reasonably foreseeable risk of injury in the plaintiff stepping down from the veranda – no evidence that the height of the stepdown created a reasonably foreseeable risk of injury
Cases Cited:Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201; Bainbridge v James & Ors [2013] VSCA 12
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms K Karadimas | Slater & Gordon Lawyers Ltd |
| For the Defendant | Mr S Smith QC with Ms K M Manning | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff commenced this proceeding by Writ, endorsed with a Statement of Claim, alleging that on 16 January 2012, he suffered injury in the course of and within the scope of his employment under the defendant as a result of the defendant’s negligence.
2 The defendant filed a Defence denying that it was negligent in the causation of the plaintiff’s injury. It alleged that if it was found to be negligent, then the plaintiff was guilty of contributory negligence. The allegations of contributory negligence were abandoned by the defendant during the trial.
The plaintiff’s employment
3 The plaintiff is a fifty-nine-year-old man who was born in February 1961 in Murtoa. Murtoa is a rural township about 305 kilometres north-west of Melbourne.
4 The plaintiff had two stints of employment with the defendant. The second, and the relevant stint, commenced in 2002. By January 2012, the plaintiff had obtained promotion to the position of ganger. I understood that position to be that the plaintiff was in charge of a work gang. His immediate district supervisor was Mr Greg Egan.
5 The depot out of which the plaintiff and Mr Egan worked was in Donald. Donald is a rural township about 282 kilometres north-west of Melbourne.
The depot
6 The incident which resulted in the plaintiff’s injury occurred at the depot. The plaintiff and the defendant tendered five photographs of the depot, and a veranda and its surrounds, which I will now refer to. The first two photographs were taken by Mr Egan on 25 March 2011.[1] The other three photographs were taken by him in 2019.[2]
[1]Exhibit M
[2]Exhibit 3
7 The first photograph in the relevant exhibit[3] was taken by Mr Egan facing north. To the west is a portable building. The centre of the photograph shows an open area covered in gravel.
[3]Exhibit M
8 The second photograph was taken by Mr Egan facing west. It shows the portable building to the west, and another view of the open area covered in gravel.
9 Mr Egan described a sequence of events relevant to the placing and levelling of the gravel and the placing of the portable building. He said that the gravel was placed prior to 25 March 2011 and levelled on that day. The portable building was placed where it is seen in the photographs some time before 25 March 2011. It was used by Mr Egan as his office. He said that there had been no change in the state of the gravel between the date when the photographs were taken and the date when the incident occurred which resulted in the plaintiff suffering injury.[4]
[4]Transcript 78
10 The first of the photographs taken in 2019 in the relevant exhibit[5] is a black-and-white photograph taken by Mr Egan facing east. It shows a close-up of the veranda and posts which support the roof over the veranda. It shows gravel to the east of the veranda and a vehicle parked to the east of the veranda.
[5]Exhibit 3
11 The second photograph was taken by Mr Egan facing east. It shows a close-up of the veranda and the posts. It shows a close-up of gravel to the east of the veranda. It shows a ruler placed against the edge of the veranda.
12 The third photograph shows a close-up of gravel to the east and underneath the veranda. It shows a close-up of the ruler sitting against the edge of the veranda.
The portable building
13 The portable building became Mr Egan’s office. Employees of the defendant, including the plaintiff, would enter the depot and would enter the portable building for the purpose of speaking to Mr Egan when that was necessary. The plaintiff, in his role as a ganger, said that he would enter the portable building most days to check in with Mr Egan in the morning and before he concluded his duties for the day.[6]
[6]Transcript 16
The incident
14 On 16 January 2012, the plaintiff said that he entered the open area of the depot in a truck. There were other occupants of the truck who were also employees of the defendant who worked under the authority of the plaintiff. The truck was parked in the middle of the open area of the depot. He observed that Mr Egan’s ute was parked in front of the portable building. He entered the portable building through the doorway as seen in the photographs of the portable building. His recollection is that he was in the portable building for a few minutes, presumably speaking to Mr Egan. He was unable to remember the work that he and his crew were expected to do that day but he knew it was in a locality known as Cope Cope, which is to the south of Donald.[7]
[7]Transcript 20
15 The plaintiff exited the portable building and walked across the veranda, intending to return to the truck. He described the incident which resulted in him suffering injury to his left knee in the following way:
Q:“When you left the portable what did you then do?‑‑‑
A:Ah, I come out of the portable. I walk towards the truck because the ute was out I had to walk further along the veranda, stepped off and then had my knee problem.
Q:When you say you had to walk further along the veranda, did you walk to go around the front of the utility or the back of the utility?‑‑‑
A:Ah, the front.
Q:And you say you had your knee problem. Can you tell His Honour at the time you stepped off at the front of that utility what leg did you step on to; in other words, what leg did you lead off the veranda with?‑‑‑
A:My left.
Q:And when did you have the problem?‑‑‑
A:As soon as I contacted the ground.
Q:Was it a flat contact with the ground or was there a twisting contact with the ground?‑‑‑
A:Ah, probably got to walk reasonably fast but, um, I think it was flat but it was just a jarring sort of.
Q:And what did you feel in the knee at the time?‑‑‑
A:It was just like a pop and a tear in me knee.”[8]
[8]Transcript 21
16 The plaintiff was asked about the height of the step from the surface of the veranda to the point where he placed his foot as he descended. He said:
Q:“Mr Voigt, can you remember how high the step down from the veranda to the ground was at the time?---
A:No. I know it was reasonably high, but I don’t know the exact measurement.”[9]
[9]Transcript 23
17 There was no issue that after the incident occurred, that further gravel was applied in and around the veranda, raising its height to some degree. The plaintiff was aware that that had occurred, but when asked about the degree to which it had raised, the best he could do was to say that he did not think the height between the surface of the veranda to the ground below had been raised very much.[10]
[10]Transcript 24-25
18 Under cross-examination, the plaintiff was asked about the height of the step from the surface of the veranda to where he placed his foot. He said that it was “definitely higher” than at the point where the ruler is shown in two of the photographs. He was unable to say by how much, because he said that he had never measured that point.[11]
[11]Transcript 36
Where was Mr Egan?
19 Mr Egan disputed that he was in Donald at the depot at the time when the plaintiff said that he entered the portable building where he presumably spoke to Mr Egan. Mr Egan said that he was in Bendigo that day. He said that he left Donald at 6.30am and travelled to Bendigo, arriving there at somewhere around 8.00 to 8.30am. He spent the entire day in Bendigo, returning to Donald by about 5.30pm. He had consulted a work diary which he said confirmed that he was in Bendigo that day.[12]
[12]Transcript 81-82
20 Under cross-examination, Mr Egan was taken to his diary and, in particular, the page devoted to 16 January 2012, for the purpose of testing his memory whether he in fact was in Bendigo or Donald that day. In the course of that cross-examination, he said that he had a particular memory of going to Bendigo because he went there every Monday morning.[13] He added that the portable building had not been set up as a functioning office. There was no internet connected, no printers and no tools or office equipment necessary to run an office, except for a desk.[14] I gathered from that evidence that he was not using the portable building because of the lack of office equipment.
[13]16 January 2012 was a Monday
[14]Transcript 116
21 Whether Mr Egan was in Bendigo or not and whether the plaintiff entered the portable building or not was something of a side issue. The defendant did not seriously contend that the incident did not occur, and later evidence confirmed that in fact it did. Nor did the defendant seriously contend that the plaintiff did not step down from the veranda at the point broadly identified by the plaintiff.
22 Both the plaintiff and Mr Egan have given equally compelling versions of their movements on the date of the occurrence of the incident. The plaintiff had every reason to attend the depot at the start of the day and to report to Mr Egan, and I gather from the evidence that Mr Egan expected his work crews to do that either by attending the depot or at least making contact with him. Mr Egan, on the other hand, described the office space of the portable building as being inadequate from which to work and hence the reason why he went to Bendigo as he did every Monday.
23 A finding one way or the other is really of no consequence; however, should it later be considered to be more important than I think it is, I prefer Mr Egan’s evidence that he was in Bendigo on that day. I thought he gave his evidence with good recall, and with the assistance of his diary, which enabled him to locate where he was on that day. The plaintiff, on the other hand, gave evidence which I do not accept about a number of events which I have dealt with under the subheading of credit and reliability. I think the fact that he was mistaken about those matters leads me to conclude that his memory of some of the surrounding circumstances of that day are unreliable, and I think that unreliability extends to whether Mr Egan was in Donald that day.
The Plaintiff’s report of the incident
24 Mr Egan said that the plaintiff telephoned him on 16 January 2012 and informed him that he had hurt his knee stepping off the veranda. On the following day he spoke to the plaintiff. He could not recall whether he spoke to him face-to-face, however, he recalled that the plaintiff told him that he had sought medical treatment from a doctor.[15]
[15]Transcript 82-83
The station incident report
25 Mr Egan conducted an investigation of the area in front of the veranda. He said that he did not notice anything during that inspection which he would regard as a hazard.[16] He then used an investigation template which is headed “Station Incident Report” to record his inspection of the area and the conclusions he reached on investigating the incident. The template is dated 17 January 2012.[17]
[16]Transcript 83
[17]Exhibit G
26 The content of the station incident report became one of two bases upon which the plaintiff mounted his case in negligence against the defendant. The first was that the height between the surface of the veranda and the point where he placed his foot, and the second, was whether the point where the incident occurred was in fact of a greater height than that measured by Mr Egan.
27 I will firstly deal with the content of the Station Incident Report. Mr Egan recorded the product of his investigation on the investigation template which required him to insert details onto it. I propose to highlight aspects of it which were emphasised by the plaintiff. The first of those was a description of the incident. Mr Egan wrote:
“Stepped off decking from the portable office at the Donald depot - felt pain in left knee.”
28 The next part carries a heading of “CONTRIBUTING FACTORS”. Under that heading are a series of boxes which required Mr Egan to mark the boxes where relevant. The box he marked as a contributing factor was “Design/Layout”. The next heading is “ROOT CAUSE/s”. It required a description to be inserted onto the template. Mr Egan wrote:
“Decking on portable office may be too high.”
29 The next part essentially asked Mr Egan to identify “Corrective & Preventative Action Plan”. On the left side are a series of boxes which required Mr Egan to mark the boxes where relevant. The box he marked was “Equipment Modification”. To the right of that box Mr Egan was identified as the person responsible for taking the corrective and preventive action. The “Action” was described as:
“Build up in front of office.”
30 Mr Egan recorded on the template that the corrective and preventative action was completed on 24 January 2012.
31 Mr Egan said that he did not have any concern that stepping down from the veranda to the point where the plaintiff placed his foot constituted a hazard, but despite that, he was instructed by his supervisor to place more gravel in front of the portable building. He said that the reason given to him as to why he was to undertake that was because his supervisor said that if the plaintiff’s claim became a WorkCover claim, that WorkCover would expect some kind of improvement to be made which he said led him to build up the area “slightly”.[18]
[18]Transcript 83-84
32 Mr Egan purchased extra gravel from a local provider. The extra gravel was provided within a week or two of the occurrence of the incident. A contractor named “Greg’s Digging” was engaged to place the extra gravel and level it.[19]
[19]Transcript 84
33 There was no issue that the extra gravel raised the level about 40-50 millimetres at a point measured by Mr Egan. He was the person who placed the ruler against the veranda shown in some of the photographs. One of the photographs shows that the height between the surface of the veranda and the gravel below is 200 millimetres. Mr Egan calculated that the level had been raised by 40-50 millimetres by measuring through the gaps in the timber veranda to the level below which had been unaffected by the placing of the extra gravel. That measurement was 240 millimetres.[20]
[20]Exhibit 4
34 The only evidence relied upon by the plaintiff relevant to the height between the surface of the veranda and the point where the plaintiff placed his foot came from Mr Egan, as did the evidence of the height to which the surface of the open area in front of the veranda had been raised.
35 There was very equivocal and uncertain evidence given by Mr Egan that there was a difference in height between the left side of the portable building (from the west) to the right side of the building (to the east), but no evidence of what that difference in height was in 2012 or now. This became relevant, because Mr Egan parked his ute with the front of it facing to the right side of the building (to the east). The plaintiff stepped down from the veranda around the front of the ute at a point where he says the height between the surface of the veranda and where he placed his left foot is more than 240 millimetres. The only conclusion I can reach, and I think of very little value to the plaintiff, is that there was some difference in height, but by how much is unknown, and whether it constituted a greater risk than stepping down 240 millimetres is something which I simply cannot conclude is or is not the case.
Credit and reliability
36 The defendant undertook a review of the plaintiff’s evidence to demonstrate that he was neither creditworthy nor reliable in many respects. The submissions were designed to achieve two ends: firstly, to encourage me to the view that I should be cautious in accepting the plaintiff’s evidence on issues going to the critical question of negligence; and, secondly, that if I concluded that the plaintiff was neither creditworthy nor reliable, or not entirely so, that I should then prefer the evidence of Mr Egan if there is a conflict in their evidence.
37 I do not propose to set out the whole of the submissions made by the defendant, because in the end the real issue in this trial is based upon noncontroversial facts. I am in no doubt that the plaintiff stepped down from the veranda to the ground below, resulting in an injury to his left knee. The defendant did not contest that the incident occurred, and indeed, there is strong evidence to the contrary in the evidence of Mr Egan that the plaintiff reported the incident by telephone on the day of the occurrence of the incident, and then on the following day. Furthermore, Mr Egan’s investigation of the incident led to him to conclude that the incident did occur consistent with the circumstances described by the plaintiff.
38 Therefore, where the plaintiff was mistaken about when the portable building was brought to the depot, and other like matters, it does not appear to me that they are of any particular consequence. They may be when it comes to the question of the plaintiff’s reliability and whether I prefer his evidence over that of Mr Egan where their evidence might be in conflict.
39 In the end I prefer the evidence of Mr Egan regarding the placing of gravel and the levelling of it in March 2011, the placing of the portable building at the depot, the building of the veranda, and that the level of the gravel relative to the surface of the portable building had not changed between the time when the gravel was placed and levelled and the occurrence of the incident. I also accept his evidence of the height of the surface of the veranda which he measured through the gaps in the veranda, demonstrating the 2011 level when compared with the level after the extra gravel had been placed and levelled after the occurrence of the incident.
Negligence
40 After reviewing the whole of the evidence, I am not satisfied that the plaintiff has established that there existed a reasonably foreseeable risk of the plaintiff suffering injury by stepping down from the veranda.
41 The plaintiff’s evidence does not of itself establish negligence. It establishes that the plaintiff believes that the step down from the veranda was too high, but he does not say why he believes it was too high nor by what degree, nor that stepping down from the surface of the veranda to where he placed his foot was unreasonable.
42 The whole of the plaintiff’s case was based upon the content of the Station Incident Report. The fact that the defendant, through Mr Egan’s supervisor, considered that the design and layout of the area where the incident occurred “may be too high” is a starting point in the analysis of whether the defendant was negligent or not, as is the corrective and preventative step of placing extra gravel; however, the question remains whether the evidence is persuasive enough to have me conclude that it alone establishes that the defendant’s conduct was unreasonable in permitting the plaintiff to step down from the veranda over a height said to be unreasonable.
43 The plaintiff did not rely upon any expert evidence nor resort to any enactments or regulations made under any enactments which condescend to standards of risers and treads relevant to the construction of steps. Whilst it is obvious that the plaintiff was not descending what is commonly understood to be a step, for example of a set of stairs, that evidence would provide a standard by which the plaintiff’s allegations that the height between the surface of the platform and where he placed his left foot was unreasonable.
44 The plaintiff submitted that the fact of corrective and preventative action by placing the extra gravel of itself points to a reasonable, practicable and available means of obviating a risk; however, that still begs the question of whether stepping down from the surface of the veranda to the point where the plaintiff placed his foot constituted a risk.[21]
[21]I was referred to Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 per Gibbs J
45 What I am left to do by the plaintiff is to work on the basis that this is a case in which common knowledge or commonsense should enable me to conclude what precautions might reasonably have been taken by the defendant to avoid the alleged risk to which the plaintiff was exposed by stepping down from the veranda.
46 Mr Egan gave evidence that he had no concern that stepping down from the veranda was a hazard. He had stepped up and down from the veranda every day, and probably more than once each day. He estimated that visitors came to the portable building every day and the number could vary between one or two and as many as ten per day. He had not noticed any difficulty stepping down from the veranda nor had he received any complaint from anyone who experienced such a difficulty.[22]
[22]Transcript 81
47 The evidence, both from the plaintiff and Mr Egan, demonstrates that the height between the surface of the veranda and the point where the plaintiff placed his left foot was often used by persons attending the portable building without incident, or any complaints being made, which suggests that it was a reasonable height to step up onto and down from the veranda.
Failure to call witnesses
48 The plaintiff submitted that the defendant failed to call the other employees in the truck in which the plaintiff arrived at the depot before the incident occurred who might have given evidence relevant to whether Mr Egan was in Donald on the day of the occurrence of the incident, and the failure of the defendant to call Mr Egan’s supervisor relevant to whether the step down from the surface of the veranda to the point where the plaintiff placed his left foot constituted any and what risk, and why he instructed Mr Egan to place extra gravel at that point.
49 I am not persuaded that I need go down that path at all because of the conclusion I have reached that there did not exist a reasonably foreseeable risk that the plaintiff would suffer injury stepping down from the veranda. The drawing of an adverse inference in those circumstances cannot assist the plaintiff in any respect it all.[23]
[23]Bainbridge v James & Ors [2013] VSCA 12 at paragraphs [14]-[17]
Quantum
50 Considering the conclusion I have reached, it becomes unnecessary to consider the competing submissions on the quantification of the plaintiff’s damages.
Orders
51 Consistent with the conclusions I have reached, I will order that the plaintiff’s proceeding be dismissed with costs.
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