Walmsley v Norton Transport Pty Ltd
[2002] TASSC 32
•4 June 2002
[2002] TASSC 32
CITATION: Walmsley v Norton Transport Pty Ltd [2002] TASSC 32
PARTIES: WALMSLEY, Graeme Hamilton
v
NORTON TRANSPORT PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 87/2001
DELIVERED ON: 4 June 2002
DELIVERED AT: Hobart
HEARING DATE/S: 27 March 2002
JUDGMENT OF: Crawford, Evans and Blow JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant: D J Barclay and D R Fairley
Respondent: P L Jackson
Solicitors:
Appellant: Temple-Smith Barclay
Respondent: Griffits and Jackson
Judgment ID Number: [2002] TASSC 32
Number of paragraphs: 16
Serial No 32/2002
File No FCA 87/2001
GRAEME HAMILTON WALMSLEY
v NORTON TRANSPORT PTY LTD
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
CRAWFORD J
EVANS J
BLOW J
4 June 2002
Order of the Court
Appeal dismissed.
Serial No 32/2002
File No FCA 87/2001
GRAEME HAMILTON WALMSLEY
v NORTON TRANSPORT PTY LTD
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
4 June 2002
I agree that the appeal should be dismissed for the reasons expressed by Blow J.
File No FCA 87/2001
GRAEME HAMILTON WALMSLEY
v NORTON TRANSPORT PTY LTD
REASONS FOR JUDGMENT FULL COURT
EVANS J
4 June 2002
I have had the advantage of reading the reasons for judgment expressed by Blow J and agree with his reasons for dismissing the appeal.
File No FCA 87/2001
GRAEME HAMILTON WALMSLEY
v NORTON TRANSPORT PTY LTD
REASONS FOR JUDGMENT FULL COURT
BLOW J
4 June 2002
The appellant unsuccessfully sued the respondent, his employer, for damages for negligence in respect of an injury that he suffered in the course of his work. His action was dismissed on the basis that he had failed to establish on the balance of probabilities that the respondent was in breach of the duty of care that it owed him. He has appealed, contending that the learned trial judge erred in reaching such a conclusion.
The appellant is an experienced truck driver. The respondent carries on a transport business. On the day in question, the appellant was driving from Burnie to Ulverstone in a prime mover, towing a trailer on which there were two empty containers. He noticed that a curtain on one side of the trailer had become loose, and stopped to secure it. He noticed that a catch had become undone. He was not tall enough to reach the catch when standing on the ground, though some people are tall enough to do so. There is no suggestion that he was unusually short. He decided to climb onto a tie rail in order to reach the catch. This tie rail ran along the side of the trailer, a few inches below the tray on which the containers sat. The tie rail was wet. It was a wet and windy day. While standing with his right foot on the tie rail, attempting to secure the curtain and close the catch, and somehow using his left knee in this manoeuvre, the appellant lost his footing. He was left hanging in the air. He managed to get his left foot onto the tie rail, but could not hold on any longer, let go, hurled himself away from the trailer, and landed on the ground. He was injured as a result of that fall.
At the beginning of the trial, the appellant's counsel abandoned reliance on all the particulars of the respondent's alleged negligence, except for the following two:
"(a)failed to provide a semi-trailer which was fitted with a ladder or a device to enable the Plaintiff to climb safely onto the semi-trailer;"
"(e)failed to ensure that there was a safe system for the Plaintiff to climb onto the semi-trailer for the purpose of closing the curtains of the shipping container."
In essence, the appellant's case at trial was that the respondent's duty of care required it to provide the plaintiff with a ladder, or a set of folding steps similar to a ladder, to be carried on the prime mover. The respondent contended that the risk of the plaintiff being injured, in the way that he was, was not reasonably foreseeable, and that the respondent was therefore not in breach of its duty of care. Alternatively, it was contended that the failure to provide a ladder did not amount to a breach of the duty of care.
The prime mover was equipped with a radio. The learned trial judge accepted evidence from a director of the respondent that, if the appellant had radioed and asked for help, a utility would have been sent out, so that the appellant could have stood on the back of the utility in order to reach the catch on the curtain.
The learned trial judge made findings that the risk of injury to the appellant was foreseeable, but that there was an extremely low probability of the foreseeable risk becoming a reality. His Honour said the following:
"Apart from the evidence of Mr Barnard [a retired driver who had once climbed onto a trailer to do up a catch], neither the plaintiff nor Mr Norton nor Mr Dohrmann [a Melbourne engineer specialising in occupational health and safety, who was called as an expert witness for the appellant] had ever heard of an occasion, other than this one, when there had arisen a need to use a ladder to gain access to containers during transit. The existence of such a need, or the possible existence of such a need, did not occur to either the plaintiff or Mr Norton prior to 18 May 1994 [the day of the appellant's injury]. According to all the evidence, no one had seen a prime mover that was equipped with a ladder. The activity which gave rise to the risk of injury was not in itself very dangerous and the consequences of negligence not likely to be grave. In this respect, it appears that the plaintiff was extremely unfortunate, for the distance between the tie-rail of the trailer and the ground was only about four feet.
With respect to the response to the risk of injury, the defendant's vehicle was equipped with a radio which the plaintiff could have used to summon assistance and, had he done so, this would have eliminated the risk of injury. Although the provision of a ladder would, I infer, have been a relatively inexpensive response to the risk, there was no evidence to show that a ladder could have been conveniently stored on a prime mover.
The uncertain difficulty and inconvenience of storing a ladder on a prime mover, the low magnitude of the risk, and the low probability of its occurrence were together, such that a reasonable employer situated in the position of the defendant would not have done any more than the defendant did to reduce that risk, viz, provide the plaintiff with a radio in his truck so that he could call for assistance. Accordingly, the plaintiff has failed to establish that it is more probable than not that the defendant was in breach of the duty of care it owed him."
In the final paragraph quoted above, the learned trial judge made a mistake as to the identity of the provider of the radio. Although the prime mover belonged to the respondent, the radio was provided by Brambles. In my view that error was immaterial. For the purpose of determining what action, if any, the respondent needed to take in order to discharge the duty of care that it owed the appellant, what counts is that there was a radio in the prime mover. The identity of the provider of that radio is of no significance at all.
The grounds of appeal relating to the radio include contentions that it had not been supplied so that drivers could seek help, but so that they could talk to each other; and that there was no evidence that the respondent had instructed the appellant to use the radio if he needed help, or instructed him in relation to the radio at all. But the appellant's case at trial was confined to the particulars I have quoted, which involve no allegation as to the respondent giving no instructions, or inadequate instructions, as to the use of the radio. Grounds 2 and 3, which relate to the radio, must fail.
The only other ground of appeal is ground 1, which reads as follows:
"1 The learned trial judge erred in fact and in law in determining that the Appellant had failed to establish that it was more probable than not that the Respondent was in breach of the duty of care it owed to the Appellant.
particulars
(a)The learned trial judge failed to give sufficient weight in the circumstances of the case to the height at which the Appellant was required to stand off the ground to close the container door on the trailer of the prime mover and the risk of injury it posed to the Appellant.
(b)The learned trial judge erred in holding that there was no evidence to show that a ladder could have been conveniently stored on a prime mover driven by the Appellant.
(c)The learned trial judge erred in holding that a reasonable employer situated in the position of the Respondent would not have done any more than the Respondent did to reduce a risk of injury to the Appellant, viz providing the Appellant with a radio in his truck so that he could call for assistance."
As to ground 1(a), we were referred to evidence that the catch was about 7 feet 6 inches above ground level, and that the tray of the trailer was about 4 feet 7 inches above ground level. The tie rail was some inches below the tray. With a ladder, any driver of ordinary height who could not reach the catch while standing on the ground would not need to climb as high as the tie rail. Mr Dohrmann gave evidence, which the learned trial judge accepted, that it was "dangerous for a driver to climb up and stand on a trailer tie-rail because it can be slippery, especially when wet, and therefore there is a danger of falling to the roadway". I do not think this is inconsistent with his Honour's conclusion that the activity which gave rise to the risk of injury "was not in itself very dangerous". An activity can be dangerous, to some degree, without being very dangerous.
As to ground 1(b), we were referred to a number of pieces of evidence relevant to the question of where a ladder could be stored. Mr Dohrmann gave evidence that it was usual to find places where one can suspend, hook or store ladders of different sizes; that the proposed ladder did not have to be very big; that it might be collapsible; and that one could usually find a place to put such a ladder on such a trailer. He said it was less likely, but not impossible, for a place to be found for such a ladder to be stored on a prime mover, particularly if the ladder was collapsible, but that he would normally consider the trailer as the obvious place. However the respondent was in the business of providing prime movers to tow various customers' trailers. If it were to provide ladders to its drivers, places would have to be found for them on prime movers, at least some of the time. Behind the cabin of each prime mover is a storage box which is quaintly and inexplicably called a "hungry board". It is about 4 or 5 feet square. Ropes, chains and such things are stored in it. I accept that the hungry board could be used to store a small collapsible ladder, though there was no evidence as to what else a hungry board needs to contain, nor as to how much room would be left for a ladder. Counsel for the appellant submitted that a place could be found for a collapsible ladder on the passenger side of a prime mover cabin, which is normally unoccupied, but I do not think it would be feasible to carry an unsecured ladder there as a matter of routine.
As to ground 1(c), counsel for the appellant submitted that the risk of a driver being injured in the way that the appellant was injured was greater than "extremely low". That flies in the face of the evidence that neither the appellant nor Mr Norton nor Mr Dohrmann had ever heard of any other occasion when a driver had needed a ladder to get access to a container during transit.
The learned trial judge correctly identified that there was a foreseeable risk of injury. The critical question, therefore, is what a reasonable person in the respondent's position would have done by way of response to that risk: Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47. The chances of a driver ever needing to stop on the highway and secure a loose curtain were slim. The chances of a driver not being able to reach the catch, and choosing to climb onto the tie rail, were also slim. Those drivers who could not reach had other alternatives open to them such as radioing for assistance, or doing what the appellant ultimately did ¾temporarily securing the curtain at a level within his reach and driving to a place where he could safely stand on something. If a driver did stand on the tie rail, the chances of slipping off it were also slim. If a driver fell off the tie rail, the chances of being seriously hurt after falling about 4 feet were also slim. Even if a ladder could conveniently be stored on a prime mover, I think the chances of a driver being injured in the way the plaintiff was injured, and the likely severity of any such injury, were such that it cannot be said that a reasonable employer in the respondent's position (and, for that matter, every reasonable employer similarly circumstanced) would provide a ladder in order to obviate the risk of injury. I think the learned trial judge was correct to conclude that the appellant had failed to establish a breach by the respondent of the duty of care that it owed to him.
I would dismiss the appeal.
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