Gale v State of New South Wales

Haynes v Harwood [1935] 1 KB 146 Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43 CASES CITED: Thurogood v Van Den Berghs & Jurgens Ltd [1951] 2 KB 537 Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40

Leonie Gale (A) PARTIES: State of New South Wales (R)

S Norton SC and P Khandhar (A) COUNSEL: S W Davis (R)

Bryden's Law Office (A) SOLICITORS: I V Knight, Crown Solicitor's Office (R)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41023/03 DC 7145/01

BEAZLEY JA YOUNG CJ in EQ MW CAMPBELL AJA

Friday 6 May 2005 LEONIE GALE v STATE OF NEW SOUTH WALES Judgment 1 BEAZLEY JA: I agree with Young CJ in Eq. 2 YOUNG CJ in EQ: This is an appeal from a decision of his Honour Judge Black in the District Court dismissing the plaintiff's claim for damages for personal injury. 3 Leave to appeal was granted on 17 August 2004 even though the amount involved, should the appellant succeed, may well be in the vicinity of only $15,000. 4 On 20 July 1998 the appellant was employed by a third party, not a party to these proceedings, to provide fitness instruction to officers of the Corrective Services at Long Bay Prison and their families. She worked in the staff leisure centre or gymnasium. 5 The staff leisure centre was owned and operated by the defendant. However, for a facility inside a gaol the arrangements were odd in that it would seem that not only its employees were able to use the centre, but also their friends and relations including children. 6 There appears to have been some contractual relationship between the company which employed the appellant and Corrective Services, but no such contract found its way into evidence before the trial judge. 7 Although the leisure centre was open 24 hours a day, seven days a week, the appellant worked in the leisure centre for only 16 hours per week. Whilst she was there she gave instruction to organised groups and was also responsible for the day-to-day maintenance of the equipment. This seems to have been limited to cleaning and oiling and other minor matters. The correspondence between the defendant and the appellant's employer tends to show that major maintenance was in the defendant's hands.

8 There were various weight machines in the gymnasium. The machines were not of a standard variety, but all seemed to work on the principle that the machine carried a series of weights shaped like a three dimensional rectangular parcel and the placing of a pin in a hole in the spine of the machine would allow the person using it to know what weights he or she was pulling.

9 At about 6 pm on 20 July 1998, the appellant was preparing for a class in the leisure centre. A Mr Barkho was trying to use a weight machine, but a pin was wedged in the machine disabling it. Mr Barkho endeavoured to remove the pin. Having failed to do so, he drew it to the appellant's attention. 10 The pin in question appears to be a piece of solid metal about the thickness of a ball point pen with a hollow metal rectangle at the outer end. However, there were a variety of other pins for other machines and they (or even a ball point pen) could be substituted for the official pin by users. 11 The appellant was not required to fix the machine. It was convenient, however, that it be in service for a session of instruction that the appellant was preparing to commence. 12 The appellant thus attempted to remove the pin. She first tried to remove it manually. She then endeavoured to remove it by lying on her back and using her foot to dislodge it. 13 To put matters simply (unfortunately, I will have to go into detail later), the pin was dislodged and heavy weights then fell onto the appellant's right foot and crushed it. 14 The appellant sued the gaol as occupier rather than her employer. Her case is that the machine was not well maintained and that the respondent should have foreseen that if it broke down, particularly if it broke down by someone doing temporary repairs badly, the appellant would attempt to fix it.

15 The trial judge held in a rather succinct judgment that the accident was the appellant's own fault. 16 The appellant appeals on the grounds that the learned judge failed to disclose his reasoning process in the judgment and erred in his assessment on the question of foreseeability of harm. 17 The appeal was heard on 4 April 2005. Miss S Norton SC and Mr P Khandhar appeared for the appellant and Mr S W Davis appeared for the respondent. 18 The trial was odd in many ways. Experts on each side prepared reports, a Mr Nicholson for the appellant and a Dr Coyle for the respondent. Both reports were tendered without objection and neither expert was cross-examined. 19 It is common ground that the weight machine consisted of a series of weighed three dimensional rectangles through holes in which passed three tubes. The left hand and right hand tubes were fixed and the weights passed up and down them when pressure was applied. The middle tube, or spine, had a series of holes in it. A pin could be pressed through the weight into the hole in the spine and this would govern the total weight the user would lift. 20 Mr Nicholson's report contained a series of photographs. Unfortunately, unless one is very careful about the use of those photographs, they can convey a most misleading impression. 21 In fairness to the expert, it would seem that the respondent had, between the time of the accident and the time the photographs were taken, undertaken a considerable amount of renewal of the equipment in the leisure centre. 22 However, it is not clear whether any of the machines photographed is the machine in question. What is more, the photographs depict at least two different types of machine, though the principle behind each type is the same. 23 The most obvious of the photographs are number 20 and three numbered 21 in Blue Appeal Book pp 69-71. 24 In her evidence-in-chief, the appellant says that she observed that there was a pin (she described it as "the wrong pin") jammed in the back of the machine. Later, the judge asked her, "When you say the pin was jammed, you mean through the proper hole?" to which the appellant answered, "Yeah but the pin was too big for the hole so it had been jammed in somehow at the back of it." 25 This was followed by the appellant saying that the pin was still holding the weights above it, but it was only slightly too big and it went through a bit. 26 She then said that "I laid on my side and I had to kick it to try and get it out and the pin, I was trying to get to the pin to kick it out so it would fall out the other side … and I must have loosened it the second time because when I put my foot in the third time the stack came down on my foot." 27 The weight of the evidence also tended to show that, when the appellant started to fix the machine, there were some weight parcels above other weight parcels with a gap of about 20 centimetres or eight inches in-between them. 28 Photograph 20 showed a weight marked "60" with a pin in it to secure it, then a gap and below it a weight marked "65" with a pin wedged diagonally into the shaft in which the spine travelled. 29 If this were the scenario, then, one can see that if the wedged pin were removed, the spine must descend and any foot in the gap would be crushed. 30 However, this scenario does not fit well with the appellant's description. In photograph 20, the pin is in the lower weight at the front, not the back. It is not in the proper hole, but in the spine's shaft. There is no way that the pin could come out the other side if this was the case. 31 The photographs numbered 21 are simply enlargements of 20, though the first photograph labelled 21 shows the appellant's foot and is entitled, "A depiction of the way the Plaintiff tried to free the jammed pin using her right foot." The foot is shown aiming, not for the lower weight 65, but for the upper weight 60. 32 The general impression was that what the appellant was saying was that there was a pin, other than the official pin that was inserted in the spine from the back and she attempted to kick it out. 33 However, even this is obscure as it doesn't account for the pin having "gone through a bit" and also how it could come out the other side with a kick. What the appellant meant by "the back" was never fully elucidated. 34 The trial judge's reasons occupied but three and a half pages. The gravamen was set out in three paragraphs as follows: " … the Plaintiff … initially attempted to remove the pin manually. She was unsuccessful. Because the weights being held by the pin were too heavy for her to hold by pulling on the handle with one hand, the Plaintiff then decided to lie on the floor, pulling down on the weights with both hands. She then used her right foot to attempt to kick out the pin, which, as I understand her evidence, was at the back of the weights, so that her foot was going underneath the weights suspended by the pin on the vertical rod. By this method, she succeeded in dislodging the pin, causing the weights to descend upon her right foot and injure it. … However, I find myself quite unable to form the view that what the Plaintiff did in relation to this jammed pin was reasonably within the contemplation of the Defendants should such a situation arise. Attempted manual removal, as the Plaintiff initially tried is one thing: however, to lie on the floor placing one's leg and foot under the very weights which are being attempted to be released, is in my judgment not something which the Defendant should have foreseen. It would be quite unreasonable in my judgment for me to impose any liability upon the Defendant in the circumstances of this case and accordingly there must be a verdict for the Defendant." 35 Miss Norton put that the learned judge's summary of the evidence was not completely accurate. It was difficult to see how the plaintiff was seeking to kick at the back of the weights. Miss Norton put that the evidence showed that the appellant was kicking the front of the weights in order to dislodge the pin at the back of the weights. 36 The criticism that the judge misunderstood the evidence may be fair, but not for the reason given. There does not appear to be any material at the trial to suggest that the appellant was kicking the weights rather than the pin. 37 A matter of greater concern is that when the judge asked questions of the appellant at the end of her evidence, the material suggests that he had one scenario in his mind and that the appellant had a different scenario in hers, so that apparent matching questions and answers were not quite that. 38 Indeed, the appellant gave evidence during this exchange that "In hindsight I guess I realize now that they probably would have come down but it seemed to be jammed, we couldn't work out how … I didn't realize that the pin would come out … that the weight would come down." 39 This evidence was actually inconsistent with what the appellant had said in chief that the weight was sitting on top of the pin or stopping it from coming out and that it never occurred to her that the weight would drop on her foot if the pin were removed. She maintained that view under cross-examination. 40 There is a lot to be said for the proposition that even though the learned judge asked his questions in a temperate fashion, there was misunderstanding and/or the appellant fell into the well acknowledged psychological state of agreeing with propositions put by a judge. 41 Miss Norton then says that the trial judge made no findings as to whether or not the respondent owed the appellant a duty of care and if so what was the nature of that duty. 42 I agree that the judgment was unsatisfactory in many respects. It does not disclose to this court what the reasoning process was and indeed even what the facts were relating to the occurrence of the accident. 43 I have already dealt with some of the uncertainties as to the facts. In addition, there was dispute as to whether there was one pin or two holding up the weights. 44 Mr Barkho, in his written statement which was tendered said that there must have been two pins. The same appears in the photographs. However, his oral evidence was very vague. 45 I found it very difficult to assess the appellant's case on foreseeability and the principal reason for this was that there were not clear findings as to how the accident happened. Indeed, on appeal, we found ourselves asking counsel questions as to basic facts. 46 Of course, fact finding in this case was not easy. The accident happened in a flash and the evidence was vague. With respect, plaintiff's counsel at the trial did not seem able to gain from the plaintiff a complete picture of how she said the accident occurred. The judge tried to remedy this at the end of the plaintiff's testimony, but the confusion just became worse. 47 For complete confusion, there was added to the mix the report of Mr Nicholson, with which Dr Coyle agreed, and on which both sides seemed to rely, which appears to have given a quite misleading picture of the rogue pin. 48 Thus, when one comes to evaluate counsels' submissions on foreseeability, one is left with the great difficulty of not having a secure factual foundation as to what actually occurred. 49 Mr Davis simply puts that no reasonable person would have anticipated that an experienced fitness instructor would be silly enough to put her foot under a pile of weights and then release the only piece of metal holding up the weights. 50 He relied on cases such as Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 to show that here the defendant had put in place an experienced operative and could assume that she would by dint of her skill and experience be able to deal competently with otherwise dangerous or risky tasks. 51 He endeavoured to develop this submission by equating the appellant fitness instructor with the mechanic with specialist training in forklift maintenance in Pack-Tainers Pty Ltd v Moore [2005] NSWCA 43. I reject this as a false analogy. The appellant was a fitness instructor with an obligation to keep the gymnasium in working order, not a skilled machine repairer. 52 The second problem with the submission is that there is very great doubt as to whether the appellant did in fact just insert her foot under the weights. 53 On the other side, Miss Norton put that it was enough that the occupier should reasonably have foreseen that a person removing a pin would sustain injury and that it was immaterial that the appellant's particular method of doing so might not have been considered. 54 She further submitted that as the judge failed to make any analysis of the duty of care and breach problems in the case, including questions of foreseeability, it was a case that must go back to the District Court for a proper trial. 55 In this sort of case, a court resorts to "The Shirt Calculus", the test in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 and asks itself whether a reasonable person in the defendant's position would have foreseen a risk of injury to a class of person including the plaintiff, and, if so, what a reasonable person would have done in response to that risk. 56 The learned judge did not address this matter. 57 Submissions as to what a reasonable person would have foreseen were canvassed before us. However, we are not the primary fact finding body: these matters should have been the subject of adjudication below. 58 The respondent submits that any mature person would have seen the obvious risk and that no reasonable occupier would foresee that anyone would act in the way the appellant did; see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204. 59 The appellant submits that the risk was not far-fetched nor fanciful and, in any event what needed to be foreseen was not the exact accident that occurred, but rather that there might be an accident of the general type that did occur. This appears to be generally correct; see Haynes v Harwood [1935] 1 KB 146 at 156 though its logical extension to the "imaginary necktie" rule mentioned in Thurogood v Van Den Berghs & Jurgens Ltd [1951] 2 KB 537 would not be embraced today. 60 All in all, I consider that the appellant's submissions that the judge did not adequately find facts or analyse the case in his reasons must prevail. Had the judge performed the analysis, he may very well have found that the appellant had made out a case. 61 I note that, because the trial resulted in the way it did, there was no call for a decision on contributory negligence. 62 The respondent filed a notice of contention basically alleging that there was no evidence of the existence of a duty of care, or, if there was such a duty, there was no evidence of breach. 63 I believe that the foregoing demonstrates that there was some evidence on each of these issues on which a court might have found for the appellant. 64 What was of more concern to me than the points raised on the notice of contention was whether the appellant had put before the trial judge sufficient evidence as to how the accident occurred to enable him to determine the matter in her favour. 65 However, I have reached the view that although the evidence could and should have been presented to the court in a much clearer fashion, there was sufficient evidence there for a court to assess the material and properly find a verdict for the plaintiff. 66 Unfortunately, the result of all this is that the matter must be returned to the District Court for retrial. I regret this, particularly in view of the relatively small amount involved, but the appellant is entitled to a fair adjudication on her claim. 67 The orders I propose are as follows:

(1) Appeal allowed; (2) Verdict and judgment of the District Court set aside; (3) Remit the proceedings for retrial in the District Court; (4) Order that the defendant pay the costs of this appeal; (5) Order that the costs of the parties in the District Court be dealt with by the judge who hears the retrial. 68 M W CAMPBELL AJA: I agree with Young CJ in Eq.

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