| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : WHEARE -v- GEROHEEV PTY LTD & ORS [2002] WADC 266 CORAM : COMMISSIONER REYNOLDS HEARD : 12 & 14 AUGUST 2002 DELIVERED : 24 DECEMBER 2002 FILE NO/S : CIV 2407 of 2000 BETWEEN : RAMON JON WHEARE Plaintiff
AND
GEROHEEV PTY LTD
MARINA ATHANASIOU
ROSE FERMANIS
ROSE COURTIS
Defendants
Catchwords: Negligence - Occupiers' liability - Personal injuries - Liability - Delivery driver steps on drainage grate in car park - Foot goes through grate and leg goes into drain - Knee injury - Issue whether manager of premises was an independent contractor
Legislation: Occupiers' Liability Act 1985
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Result:
Defendants (owners of premises) liable
Plaintiff contributorily negligent at 20 per cent Representation:
Counsel:
Plaintiff : Mr D M Bruns
Defendants : Mr D R Clyne
Solicitors:
Plaintiff : Separovic & Associates
Defendants : Pynt McKay
Case(s) referred to in judgment(s):
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Case(s) also cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Ball v Wilson Parking (2001) 28 SR (WA) 80
Colonial Life Assurance v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41
Crombie v Uniting Church in Australia Property Trust (1997) 17 WAR 291
Haseldine v C A Daw & Son Ltd & Ors [1941] 2 KB 343
Hollis v Vabu Pty Ltd (2001) A Tort Rep 81-615
Jones v Bartlett (2000) 75 ALJR 1
Jones v Dunkel & Anor (1959) 101 CLR 298
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Stannus v Graham (1994) A Tort Rep 81-293
Thomson v Cremin [1953] 2 All ER 1185
Voli v Inglewood Shire Council & Anor (1963) 110 CLR 74
Woodward v Mayor of Hastings [1945] KB 174
Wyong Shire Council v Shirt (1980) 146 CLR 40
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Introduction 1 The plaintiff was born on 19 January 1961 and is 41 years of age. At all material times he was a truck driver and did bread deliveries. The defendants are the owners and occupiers within the meaning of the Occupiers' Liability Act 1985 ("the Act") of premises which included a Foodland shop ("the shop") and car park area at 111 Brighton Road, Scarborough ("the premises"). On Friday, 9 April 1999 the plaintiff went to the premises to deliver some bread and muffins. He parked his truck in the car park area at the rear of the premises. When he was walking from his truck to the back door of the shop to deliver some muffins he stepped onto a drainage grate in the car park area with his left foot. One of the bars in the grate was missing or gave way and nearly all of his left leg went down through the grate and into the drain causing him to suffer a left knee injury ("the accident"). 2 The plaintiff alleges that his knee injury was caused by the negligence and/or breach of the statutory duty of the defendants, their servants or agents. The defendants deny that they were in any way negligent or in breach of their statutory duty. 3 The matter proceeded to trial on the issue of liability only. The key issues for determination as between the parties relate to causation, foreseeability and whether or not s 6 of the Act provides a complete defence to the defendants.
The pleadings 4 The particulars of the plaintiff's claim against the defendants are outlined in pars 6 and 7 of the plaintiff's amended statement of claim which provide as follows: "6. The defendants, their servants or agents, knew or should have known that the grating was defective on the material date.
PARTICULARS
(a) The grating for some weeks prior to the material date was visibly damaged in that it had been bent out of shape.
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The evidence 5 The plaintiff gave the following evidence. He had been delivering bread to the shop for about three months or so leading up to the accident. He made daily deliveries five days per week on Monday to Friday inclusive. When he made his deliveries to the shop he parked his truck in the car park area behind the shop, took the bread in crates from the back of his truck into the shop, attended to the necessary paperwork while he was in the shop, returned to his truck with the empty crates from the previous delivery and then drove on to his next delivery.
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6 A side wall of the shop ran parallel to a public footpath on the edge of a roadway. The entrance to the car park area was immediately adjacent to the roadway just beyond the back of the shop. A fence was erected from the back of the shop to the rear of the premises along the boundary of the premises parallel to the roadway. The fence line was broken by a pole on each side of the entrance to the car park area. The drain and drainage grate in question was positioned in the car park area not far from the back of the shop.
7 The plaintiff entered the car park area by first driving his truck on the shop side of the roadway just past the shop and the entrance to the car park. He then reversed his truck between the two poles and into the car park area. When he reversed his truck into the car park area on the day of the accident he kept the drainage grate to his right ie, between the driver's side of his truck and the back of the shop. When he had driven past the drain he turned the truck to his right around the rear corner of the shop further away from the entrance to the car park area. He then drove his truck forwards towards the rear of the premises, past the drain, and parked it. The truck was parked facing the rear of the premises and the back of it was positioned just past the drainage grate. 8 The plaintiff arrived at the shop at about 6.50 to 6.55 am. He described the lighting at the time as shadowy, no longer dark and light enough for him to see. He got out of the driver's side of the truck and took 24 loaves of bread on two crates out of the back of the truck and delivered them inside the shop. When he was inside the shop doing the paperwork he realised that he still had three packets of muffins in the back of the truck that had to be delivered. He went back to the truck and got the muffins. He then stepped away from the back of the truck towards the back door of the shop with the intention of going into the shop to deliver the muffins. He took his first step with his right foot. When he took his next step with his left foot it went down the drain and he stopped falling when the grating of the drainage grate was about two inches from his crutch. 9 The plaintiff said that he could not say what he felt when he put his left foot on the area of the drainage grate because he was wearing boots at the time. He then said that he felt nothing but pain. After he came to a stop he felt stuck and one of his legs was twisted. He pushed himself out of the drain using his elbows and forearms and then walked slowly towards the rear door of the shop. On his way he found a metal bar on the ground about three to four metres from the drainage grate. The bar was bent. He did not know how it got there. He went inside the shop and told
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someone about the accident. When he went back outside with someone who worked at the shop and looked at the grate he noticed that one of its bars was twisted over and broken at one end. 10 The plaintiff said that he did not know whether or not the bar that he found on the ground had broken when he stepped onto the drainage grate. In my opinion the plaintiff was very upfront and open when he gave his evidence. I find that he was a very credible witness. He said that he knew from previous deliveries that the grate was there. He added that before the day of the accident all he had noticed was that the grate was old, that it was a little bit rough and that it was bent. He said that on the day of the accident and before the accident happened he did not take a good look at the drainage grate and that he had not noticed that a bar was missing. 11 The plaintiff gave evidence that before the day of the accident he saw delivery trucks drive over the drainage grate. Such trucks included a meat truck that weighed about 25 tonne, a truck that delivered flour, a waste bin truck and a Coca-Cola delivery truck. He said that he had seen drivers turn wheels of their trucks on the drainage grate but not actually park their trucks with a wheel on it. 12 At trial the defendants challenged the plaintiff as a witness of truth. Counsel for the defendants put to the plaintiff that he had given various versions of the accident to various medical practitioners that were inconsistent with each other and also inconsistent with his evidence. The plaintiff accepted that on various occasions he told various medical practitioners that, (1) the grating gave way and I fell in the drain shaft, (2) one of the bars broke when I stood on it with my left leg, (3) I stood on a stormwater drain which collapsed, (4) I stepped onto a storm drain and a couple of bars became broken and I became stuck, (5) I stood on a grid which broke and (6) I stepped onto a grate which gave way resulting in me falling into the hole. 13 Michael John Ryan ("Mr Ryan") drives a milk truck. He has delivered milk to the shop on six days a week for about the last five to six years. He knew the plaintiff from when the plaintiff used to deliver bread to the shop. He said that the drainage grate was positioned within a circle of concrete. The car park area was covered in a bitumen surface. He said that when he reversed his truck into the car park area he could tell when its wheels went over the lip of the concrete. 14 Mr Ryan also reversed his truck into the car park and around the back corner of the shop in the same way as described by the plaintiff. He
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said that he had to drive forwards and backwards about two to three times to do so. He also said that the wheels of his truck did not always go over the drainage grate when he did so. Sometimes they just went over the concrete. He said that he had seen wheels of trucks driven over the grate. He added that you had to in order to get the trucks around the back corner of the shop. 15 Mr Ryan gave evidence that there was a time when he came to hear that the plaintiff had fallen down a drain in the car park area of the premises. He said that at about the same time that he had found out about the plaintiff's accident he heard an unusual clunk noise when he reversed his truck over the drainage grate. He said that it felt like the driver's side rear wheels were falling down a pothole. 16 Marina Athanasiou ("Mrs Athanasiou") is one of the defendants and an owner of the premises. She and the other owners bought the premises in about 1972. She said that the owners had always had managing agents for the premises. In 1994 she signed an authority for Hooker Corporation to manage the premises. She said that she did not attend the premises but knew what was happening from monthly reports and phone calls from time to time. She also said that prior to the accident she had no knowledge of any problem with a drainage grate in the car park area. 17 In cross-examination the contents of various documents in the managing agent's file were put to Mrs Athanasiou. She agreed that there was considerable expenditure on the premises from time to time. She said that the car park area was re-bituminised in about 1996. She gave evidence that the managing agent would always instigate action. She added that the managing agent would get three quotes to do whatever was necessary and go ahead with the quote that it thought was the best and not on the one that the owners agreed to. When it was put to her that the owners had the final say she said that the managing agent was always in control. She said that it was a case of the managing agent telling the owners what they had to do and it was done. She also gave evidence that as far as she can recall the owners always did what the managing agent said. In cross-examination she agreed that a copy letter of the managing agent dated 18 May 1998 on the managing agent's file asked for her approval to go ahead with some work at the premises. I will set out parts of this letter later. 18 Gemma Galipo ("Ms Galipo") was employed by Knight Frank from October 1994 to 26 March 1999 as a retail portfolio manager. At least by May 1996 Knight Frank was managing the premises. There is no
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evidence on and so I am not sure of the precise details on the changeover from Hooker Corporation to Knight Frank. However there is no reason to think that it was anything other than a smooth transition. Ms Galipo said that Knight Frank was responsible for all financials, repairs and maintenance of the premises. She had a portfolio of 25 properties to manage and the premises was one of them. 19 Ms Galipo gave evidence that she used to inspect the premises at least once a month before she prepared a monthly report for the owners of the premises. She said that an inspection aided the preparation of the monthly report. Ms Galipo said that when she inspected the premises she entered through the front of the shop. She also said that her inspections of the car park area included the drains. She said that she did not take notes during inspections and that she never observed any problem with the grills on the drains. She also said that she had never received any complaint about them. She added that if she had ever received a complaint about the grills on any of the drains then there was a system in place whereby the grills would be replaced. She also said that "tenants were your eyes and ears" between inspections of premises and that if there was a problem they would call and complain. In cross-examination she rejected the suggestion that she relied entirely on the tenants of the premises for information about problems with the premises. She did not recall anyone making a complaint about a faulty grate in late March, early April 1999. 20 Ms Galipo recalled that there were lots of problems with the car park and the drainage system in the car park in about 1996/1997. The car park needed to be resealed and the local government authority thought there was insufficient drainage and wanted another soakwell installed. A contractor was organised to install another soakwell. She said that she had to obtain quotes for the resurfacing of the car park and made a recommendation to the owners and sought their approval to proceed. Ms Galipo gave evidence that she had the authority of the owners to authorise repairs up to a cost of $100 without recourse to the owners and that for any repairs costing more than $500 she sought the owners' approval. 21 The resurfacing of the car park and the installation of the additional soakwell was completed by about early March 1997. 22 Exhibit 8 is a copy letter of Knight Frank dated 18 May 1998 signed on its behalf by Ms Galipo and addressed to Mrs R Courtis who is one of the defendants. The contents of this letter do not relate to the grate. However they are relevant to the issue of whether or not the defendants
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have a defence under s 6 of the Act. Before I set out the contents of the letter it may be useful at this point to set out the provisions of s 6(1) of the Act. It provides as follows: "6. Negligence of independent contractor (1) An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if — 23 The copy letter dated 18 May 1998 provides as follows: "We have received correspondence from the City of Stirling Health Inspector, who has requested that all overgrown vegetation be removed from the rear carpark perimeter. We have obtained quotations for this work and have been advised that a bobcat will be required in order to remove the vegetation, etc. to a depth that should restrict future growth. The cost for attending to this will be $800.00. Although the cost may seem high, we have been advised that it is now mandatory to separate green material from other rubbish for tipping purposes. This quotation also includes the cost of backfilling the area with sand suitable for future paving, which should be considered as an option. Alternatively, we may need to consider employing a gardener/cleaner to keep this area under control and free of weeds and debris. We have been advised that the cost for paving this area would be in the vicinity of $800.00. We shall now obtain quotations to employ the services of a gardener/cleaner on a monthly basis. These shall be forwarded to you in due course for your comment or approval.
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Meanwhile, should you be in agreement with the above quotation, we ask that you please sign and return the attached copy of this letter to our office. In the event that we have not heard from you by 25 May 1998, we shall proceed with the above works." 24 The plaintiff called William Jack Apgar ("Mr Apgar") who gave evidence on the drainage grate. Mr Apgar visited the premises with the plaintiff on 24 November 2001 and inspected a grate over a drain at the location where the plaintiff indicated that he had fallen through. Mr Apgar took a photograph of the grate. The date of this inspection is about two and a half years post-accident. Mr Apgar said that the bars on the grate had been re-welded. He said that all of the welds looked about the same age. He concluded from this that they were likely all re-welded at the same time. The defendants accept that this is the grate involved in the accident. The grate was repaired after the accident. In a report dated 26 November 2001 Mr Apgar set out inter alia: "5.0 ANALYSIS A brief analysis was made of the strength of the bars used in the grate involved in the subject accident. The bars are only 8.2 mm thick by 40.8 mm wide and cover a span of approximately 430 mm. Assuming reasonable weld continuity on each end of the bar and a yield strength of 300 Mpa (mega Pascal), these bars would only be expected to sustain a lateral force of 2550 Newtons (260kg/force). To put this in perspective, this force could readily be applied by one set of the rear wheels of a 3 tonne truck accelerating at a rate of 1.7 meters per second squared (0.17 g where g is the acceleration of gravity = 9.8 meters per second2). This force could also be readily applied by braking forces. These forces are well within the capability of a small truck. By comparison the steel bars in a grate in a typical street drain consist of bars which are 40mm wide by 16mm thick with a span of 460mm. By comparison these bars should be able to sustain a lateral force of 8900 Newtons (908 kg/force). For a 3 ton (sic) truck this would provide for an acceleration of 5.9 meters per second2 (0.6 g). The tyre would likely slide before achieving this acceleration. This is 3.5 times as strong as the grate involved in the subject accident.
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Based on these observations and calculations, the clear indication is that this grate is not strong enough for the service for which it is being used. Such a grate might be adequate for light vehicle traffic but should not be used in a area where trucks travel. It is also indicated that substandard welds may have been involved in the original grate. These welds may have cracked progressively over time such that they became progressively weakened until they completely failed and the bars rolled over. … The gap between bars is 44 mm and the bars are 8 mm thick. The gap created by one missing bar would be 96mm. This is just wide enough for a person's foot and lower leg to protrude. If two bars were missing the gap would be 148mm and this gap should be wide enough to pass a person's knee and most of their leg. … 6.0 CONCLUSION From the available information it is clear that the grate involved in the subject accident is not of adequate strength for service in an area being traversed by trucks. The indication is that the bars of the grate have been bent from normal vehicle traffic and that this has caused the grate to deteriorate such that welds progressively failed causing two bars of the grate to become loose. There is no evidence that an unusual single event caused the damage to the grate. One bar was likely completely missing when Mr Wheare traversed the grate. The other bar was either loose in the grate or nearly loose so that it moved and became displaced when Mr Wheare stepped on it. The grate would likely have been in this condition for a significant period of time before the accident. As a result, Mr Wheare fell through the gap in the damaged grate and received injuries to his legs.
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It is not unusual for such a drain to be located in a trafficable area. However, such a drain should be fitted with a grate which is adequate for the service intended. At the very least, such a grate should be maintained so that its condition does not create a hazard. In this case, the grate design was inadequate and it was not properly maintained. As a result, the subject accident occurred." 25 Mr Apgar confirmed the contents of his report when he gave evidence. He described acceleration of .17g as "pretty gentle acceleration, normal type of acceleration – let the clutch out and move away type acceleration, it's not hard acceleration and it's the sort of force that you could readily get from a light truck accelerating on top of that bar." 26 In examination-in-chief Mr Apgar was asked and said: "You talk further down about 'welds cracking progressively over time and becoming progressively weakened.' When you say over time are we talking hours, days, weeks, months?---For an object like this I would say weeks, months, years. There's two types of failures you would expect in an object like this. One would be from some sort of a traumatic event. If you don't have a traumatic event, then you would expect a failure to be slow and progressive, especially when you have evidence that things are being overloaded, that you are actually getting yielding of the metal. An object like this – you would never expect to see it bending in service. If you did see it bending in service without a traumatic event, you would expect that it's overloaded, you would expect things to be breaking up progressively. Welds are typically your weak point, especially depending on the type of weld, and you would expect them to start to crack and the cracks would propagate through the weld material and it would progressively break up over time." 27 In Mr Apgar's cross-examination he was asked and said: "You said you weren't a grate expert. Do I take it then you have no knowledge of how regularly the Main Roads Department, for example, inspect their grates?---I've been involved in accident investigations involving people doing that and it is periodic. A typical sand trap under a grate, to my knowledge is looked at at least once a year.
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The sand trap but the testing of the steel itself, can I suggest to you that the Main Roads Department do not have periodical inspections of the metal grates?---I would suggest that part of the worker's responsibility if he saw a damaged grate on his, say, annual inspection of the pit under the grate would be to call in a replacement." 28 Clause 9.2 of the lease of the premises that was operative at the time of the accident and in which the defendants are named as the lessors provides as follows: "Clause 9.2 Control of the Common Areas. The Common Areas shall at all times be subject to the control of the Lessor who shall have the right having regard to the interests of the Lessor in the Centre as a whole and or the rights or interests of the other tenants occupiers or persons lawfully therein from time to time to establish modify and enforce reasonable rules regulations with regard thereto. Without limiting the generality of the foregoing the Lessor expressly reserves the right at any time and from time to time to:- 1. construct maintain and operate lighting facilities; 2. police the Common Areas; 3. change the area level location and arrangement of the Common Areas the Parking Areas and other facilities; 4. restrict parking by the lessees and their agents and employees to such parts of the Parking Areas as the Lessor may from time to time designate; 5. Close all or any portion of the Common Areas to such extent as may in the opinion of the Lessor be legally sufficient to prevent a dedication thereof or the accrual of any rights to any person or the public therein; 6. close temporarily all or any portion of the Common Areas or facilities for the purpose of building reconstruction repairs or like purposes; and 7. impose and charge fees against users of the Parking Areas."
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The duty of care under the Act
29 Section 5(1) of the Act provides as follows: "5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger." 30 Section 5(2) and s 5(3) do not apply in this particular case. Section 5(4) of the Act provides as follows: "(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to — (a) the gravity and likelihood of the probably injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and
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(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
Analysis and findings on the issue under s 6 of the Act 31 The defendants retained control of the car park area pursuant to cl 9.2 of the lease. That of itself does not necessarily mean that Knight Frank was not an independent contractor. It is simply a factor and an appropriate starting point to consider the issue. 32 Mrs Athanasiou's evidence that the managing agent was always in control needs to be assessed in the context of all of her evidence and also with the evidence of Ms Galipo. Mrs Athanasiou's evidence as a whole does not show that Knight Frank was an independent contractor. Although generally she seemed to want to paint Knight Frank as having unilateral control of the premises some of her evidence suggested otherwise. For example, to say that the owner always did what the managing agent said is not supportive of the proposition that Knight Frank was an independent contractor. 33 To the extent that Mrs Athanasiou was attempting to say that Knight Frank had ultimate control of the management of the premises I totally reject her evidence. Ms Galipo gave clear evidence which I accept to the effect that she had the authority of the owners to make relatively small decisions on the management of the premises without consulting them. When more weighty decisions had to be made she requested the authority of the owners and supplemented her request with a recommendation. Where there is conflict between the evidence of Mrs Athanasiou and Ms Galipo I prefer and accept the evidence of Ms Galipo. 34 The contents of the letter dated 18 May 1998, which is only about 11 months before the accident, clearly shows that Knight Frank by Ms Galipo was truly a managing agent and not an independent contractor. 35 For the combination of all of these reasons I find that Knight Frank was not an independent contractor and that the provisions of s 6 of the Act do not apply in this particular case.
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Analysis and findings on the accident
36 I repeat my finding that the plaintiff was an open and credible witness. In my view the plaintiff made each of the various statements to various medical practitioners to do no more than simply convey a general idea of how he was injured. The inconsistencies in the detail of his descriptions of what happened are simply the product of him not knowing exactly what happened other than he stepped inside the perimeter of a drainage grate and that his foot went through it and down into the drain. If anything his different descriptions are no more than reflections of his own thoughts on what might have happened. He may have thought that the medical practitioners simply wanted a general description of what happened and were not so much concerned with the detail. Anyway I have no doubt that he did not give the various descriptions to in any way mislead. The plaintiff impressed me as an honest witness. 37 When Mr Apgar gave evidence he referred to parts of an undated prior written statement purportedly made by the plaintiff about the accident. It seems that Mr Apgar had the prior written statement with him when he visited the premises with the plaintiff on 24 November 2001. During cross-examination counsel for the defendants asked Mr Apgar and Mr Apgar said the following in relation to the statement:
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No, the one after that?---Sorry. I haven't got a copy, 'I had noticed the - - -'? ---I had seen the grate on that morning when I was making my deliveries but I thought nothing of it and it looked to me as it was quite solid. So you had a statement from the plaintiff to the effect that he had seen the grate earlier on that day and he thought nothing of it and it looked quite solid?---Yes. So there was nothing in that statement to indicate that when he saw the grate there was a bar missing?---No." 38 Counsel for the defendants submitted that these prior written statements purportedly made by the plaintiff form an integral part of the evidence. Counsel for the plaintiff submitted that they do not. In my view even if it is evidence no weight should be attached to it. The prior written statement and in particular who made it has not been proved. Even if the statement was proved and it was also proved that the plaintiff made it the statements would not equate to evidence of the plaintiff. At best they could be compared to the plaintiff's evidence to assess the credibility and reliability of the evidence he gave on oath during the trial. 39 Mr Apgar's evidence that he is not a grate expert should be considered in the context in which it was given. I find that he was suitably qualified to give the expert evidence about the drainage grate and measurements relating to the grate to which I have referred. I accept his evidence save that I attach no weight to his opinions on how the accident may have happened because in my view they go beyond the nature of expert evidence and are matters of fact for me to determine. 40 The duty of care of the defendants was to show such care as in all the circumstances of the case was reasonable to see that persons including the plaintiff did not suffer injury or damage by reason of a danger due to the state of the premises or to anything done or omitted to be done on the premises. All dangers of which the occupiers knew or reasonably should have known are included. 41 Mr Ryan was a credible witness and I accept the evidence he gave on how he manoeuvred his truck and the observations he made of other trucks driving over the drainage grate. However, his evidence on the timing of when he reversed his truck over the drainage grate and heard an
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unusual clunk noise was vague and imprecise. Accordingly I am not satisfied on balance whether it happened before or after the accident. Given that the plaintiff carries the onus of proof I attach no weight to this aspect of his evidence. 42 Counsel for the defendants has argued that the court is being asked to speculate on how the accident happened and in particular whether it happened because a bar was missing or because a bar gave way. In my view it does not really matter which one of these two alternatives was the direct cause or whether the plaintiff stepped through a gap between the bars and in the course of his fall his leg caused one of the bars to break off at one end and twist. All of these scenarios can be properly related back to the drainage grate being structurally inadequate to service the car park area in the position it was located. Anyway, I am satisfied on balance that a metal bar was missing from the drainage grate at the time of the accident. 43 In my view it is highly likely that the bent metal bar that the plaintiff found about three to four metres from the drainage grate after the accident did not break off the grate when the accident happened. If a bar broke off the grate when the plaintiff stepped on it then it would probably have dropped into the drain. In the unlikely event that it broke off when the plaintiff stepped on it and got caught on his clothing and was then carried by him when he walked from the drainage grate towards the back door of the shop I think that his attention would have been drawn to it falling on the ground. There is no evidence to even suggest that this may have happened. 44 In my view the plaintiff probably fell into the drain and injured his knee as a result of stepping on the drainage grate at least where the metal bar was missing. The structural defects of the bar immediately adjacent to where the bar was missing caused the plaintiff's left leg to fall deeper into the drain than it otherwise would have thereby exacerbating his fall. 45 In my view the decision in this case does not turn on whether or not the defendants knew or reasonably should have known that the metal bar was missing from the drainage grate. Indeed the defendants and Knight Frank probably did not know that the metal bar was missing. It is necessary to look at the originating cause for the metal bar becoming detached or being rendered capable of being detached from the grate in the first place. Based on Mr Apgar's evidence I find that the metal bar would have gradually bent over time and that eventually it deteriorated to the point where the welds failed. It probably broke off the grate in service
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or someone broke it off in a damaged condition. None of this would or could have happened if the grate had not been structurally defective in all the circumstances. 46 In my view the proper question to be asked to arrive at the correct decision in this case is whether or not it is reasonable having regard to all of the circumstances to conclude that the defendants should have known that the drainage grate was structurally defective for its purpose. Everything flows from that. The following circumstances should be taken into account in answering this question. 47 The position of the drainage grate within the car park area and relative to the back door of the shop is a significant relevant circumstance. In my view the drainage grate was badly positioned in the car park area because small delivery trucks were driven over it when drivers entered the car park area and parked their trucks. I accept the evidence of the plaintiff and Mr Ryan that on some occasions delivery drivers turned the wheels of their trucks on the grate. I also accept the evidence of Mr Apgar that lateral forces on the bars of the grate were of particular relevance. 48 Based on the combination of this evidence of the plaintiff and Mr Ryan and the expert evidence of Mr Apgar I make what I regard to be a crucial finding that the bars of the drainage grate would have gradually bent and deteriorated over a significant period of time due to the lateral forces from the turning wheels of delivery trucks. I accept the plaintiff's evidence that he had noticed that the grate was bent before the accident. While this evidence provides some but not complete support to my finding I do not rely on it because it is silent on timing. I regard this finding as crucial because it is significant on the issue of inspections which I now turn to. 49 I accept Ms Galipo's evidence that she inspected the premises on a monthly basis to aid her preparation of monthly reports to the defendants. However, I am not satisfied that her inspections of the car park area and the drains were anything more than general perusals. I accept the evidence of Mr Apgar that the Main Roads Department visually inspects its road drains and grates at least once a year. I find that there should have been and was no system in place for the proper inspection of the drainage grates in the car park area of the premises. I also find that the monthly inspections carried out by Ms Galipo were inadequate in this regard. In my view the position of the drainage grate in this particular case clearly warranted proper inspection. I have already mentioned that trucks drove over it. Further, and also importantly, the combination of its relative
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position in the car park area and its relative position to the back door of the shop made it likely that delivery drivers would step on it from time to time when they accessed the back door of the shop to make their deliveries. 50 There is no evidence that the drainage grate the subject of this accident relates to the extra soakwell that was added to the car park area in 1996/1997. I make no finding that it was. The drainage grate in question must have been in the car park area for at least about two years before the accident. While it would have been necessary to conduct scientific tests on the grate to determine its strength or lack thereof for its use, the structural weakness of the grate manifested itself by the bars bending. This was no hidden danger. I find that if a proper inspection of the drainage grate in question was carried out before the accident it would have been visually obvious that the bars were bent. Such an observation would have prompted further investigation and in light of Mr Apgar's evidence inevitable replacement. 51 The plaintiff delivered bread and muffins to the shop on the premises. He had done so on about five days a week for about three months before the accident. Clearly he was an invitee and a frequent one at that. The structurally defective drainage grate was positioned in the car park area where delivery drivers parked their trucks and accessed the back door of the shop. The defendants would not have been burdened financially or at all by causing proper inspections to be carried out of the drainage grates in the car park and maintaining and/or replacing defective grates. In my view it was reasonably foreseeable that a delivery driver who parked his truck in the car park area and accessed the back door of the shop to do a delivery would be exposed to injury if a drainage grate positioned on the drain in question was structurally defective.
Conclusion on the issue of the defendants' liability 52 For the combination of all of these reasons I find that the defendants were negligent and breached their statutory duty to the plaintiff.
Contributory negligence 53 The onus of proof lies with the defendants to establish contributory negligence against the plaintiff.
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54 The principles governing apportionment of liability are well settled. In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, the High Court held:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involved a comparison both of the culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre (1958) Tas SR 26 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination." 55 The plaintiff was well aware of the existence and the position of the drainage grate in question. In my view he should have kept a better lookout and exercised more care for his own safety when he stepped away from the back of his truck towards the drainage grate to access the back door of the shop to deliver the muffins. 56 I find that the plaintiff was 20 per cent contributorily negligence.
Conclusions |