Sheridan & Anor v Borgmeyer [2006] NSWCA 201 | Case summary

Ex tempore 14 June 2006 ROBERT SHERIDAN & ANOR v JOHN WILLIAM BORGMEYER Judgment 1 BEAZLEY JA : The respondent was injured on 27 October 2000 when, whilst working as a shearer in shearing sheds owned by the appellants, he fell from a platform in the appellants' shearing shed known in the industry as a shearing board. He injured his back and suffered other injuries in the fall. 2 The respondent brought proceedings against the appellants alleging that they were negligent, essentially, in failing to provide a safe place of work. The appellants were not his employers. The respondent was employed by a person by the name of Murray Slater. It appears proceedings were not brought against the employer. 3 The trial judge found that the appellants were negligent on the basis that a reasonably prudent occupier, in their position, would have placed a guardrail around the platform, upon which the respondent was carrying out the shearing work. His Honour observed that the platform, which was almost 0.8 metres high and was about 1.7 metres in depth, was such that a fall, from such a height, was quite capable of causing severe injuries. His Honour further found that the first appellant was aware of the risk that a fall from the platform could cause such injuries and had known that for more than a couple of decades. His Honour found that the appellants were 75 per cent liable to the respondent as a result of their negligence, and that the employer was 25 per cent responsible. There is no appeal against the finding of apportionment. 4 The appellants' appeal against his Honour's finding of liability, first on the basis that there was no breach of duty and secondly, on the basis that the respondent had not established that the accident was caused by the negligence, if any, of the appellants. The appellants also challenge his Honour's finding that the respondent was not himself contributorally negligent. 5 The respondent had been a shearer for nearly the whole of his working life. He took a break from that occupation for some years but returned to shearing in late 1995. In September 2000, he commenced undertaking some shearing work at the appellants' property. 6 It was the respondent's practice to use a harness whilst he was undertaking shearing work. A harness was a device used by some shearers in the industry but was not compulsory in any way, nor was it a universal practice for shearers to use it. However, many shearers tended to wear a harness, as it gave them some support while they were bearing the load when shearing the sheep. The harness is secured from above and most shearing sheds accommodate the provision of these harnesses by having an overhead truss, to which the harness can be attached. The practice is that a shearer will attach the harness to the truss before commencing the shearing work. The truss was described in some detail by his Honour in para 9 of his judgment. Essentially, it consisted of a piece of piping which contained within it a moveable smaller piece of piping, able to move to the left and right to enable the shearer himself to have movement whilst he undertook the shearing work. 7 The platform itself was described as being a "U" shape. A set of metal steps were installed which were about 1.5 feet wide at the far end of the "U". On the morning of the respondent's accident, he was standing on the platform in order to carry out the shearing. He commenced to attach his harness to the truss but found that it was stiff and difficult to move. He gave it a light tug in order to release it. That did not succeed. The respondent, accordingly, gave the truss a harder tug. The truss became un-jammed suddenly and the respondent went backwards and fell over the edge of the platform. He landed on his back, hitting the platform with his back on the way down. His right foot became stuck or entangled between the top step of the steps near the platform and the edge of the platform itself. 8 The respondent's case was that a guardrail should have been provided around the perimeter of the platform, so as to ensure that the platform was reasonably safe from which to carry out the work and, in particular, so as to provide some protection against a possible fall from the platform to the floor. 9 The appellants contended before the trial judge and contend again here that they were not in breach of their duty of care to the plaintiff. They submitted that there were a number of factors which militated against there being any such breach of duty. First, they contended that it was not the usual industry practice for platforms to be guarded by a rail. They relied upon the respondent's own evidence that he had worked in about 100 sheds, of which a total only of about 15 had guardrails around the platform. They further relied upon the evidence of an expert witness, a Mr Black, who is a director of Shearing Industry Consultants, who gave evidence that, in his experience, it was uncommon for shearing sheds with raised platforms to have guardrails around the perimeter of the platform. He said that the presence of guardrails could be a disadvantage or an obstacle or hazard, because it would require more care and awareness to avoid during the frantic working pace that is common in a busy shearing shed. He re-emphasised this point in his report when he said that guardrails were uncommon due to the interference they have with the workflow and efficient running of the main working area of the shearing shed. He added that if a guardrail was in place, it needed to be high enough not to interfere with the working capabilities of all the shearing shed staff while they were doing their respective jobs. This comment would appear to be directed, at least in part, to the need for the rouseabouts to be able to clear the platform of wool, on a fairly continuous basis, as the shearing was being undertaken. 10 The appellants further relied upon the evidence of Mr Hutchinson who was a grazier and a part-time shearing trainer and had been inducted into the Shearer's Hall of Fame. He gave evidence that any impediment to the performance of work in the shed, particularly that of rouseabouts, by the provision of a guardrail would be slight or minimal. However, the appellants contended that that evidence was of little value because Mr Hutchinson said that although he had seen guardrails in about 50 per cent of sheds that he had either worked in or visited, he never, at any stage, gave any indication of how many sheds that was and to the extent that he did give any evidence, he said that his visits to a variety of different sheds was somewhat restricted. 11 The appellants further relied upon the fact that the respondent had never fallen before from a platform, nor was there any evidence of anyone else having fallen from a platform. 12 The appellants further relied upon the fact that the risk of injury from falling from the platform was obvious and that was a matter to be taken into account in the determination of whether or not the appellants were liable. They relied, in particular, upon the provisions of s 5F of the Civil Liability Act 2002 (NSW) (the Civil Liability Act ). 13 In my opinion, there was no error in the trial judge's finding that there had been breach of duty. 14 In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, Mason J in a well-known passage said this: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff." 15 In this case, there was ample evidence upon which his Honour could conclude that a reasonable person would have foreseen that the failure to provide a guardrail would have involved a risk of injury to a person working on the platform. As the trial judge pointed out, the platform was about 0.8 metres high. It is a matter of common sense that a fall from that height could cause injury. To the extent that that may have been obvious, so as to call into play the provisions of s 5F of the Civil Liability Act , senior counsel for the appellants accepted that the question of obviousness of the risk is only one factor to be taken into account. 16 In this case, whilst it was obvious that a person would injure themselves in a fall from the platform, the dynamics of the accident were such that the tug on the malfunctioning truss caused a sudden movement by the respondent so that any obviousness of the potentiality of a fall was, in effect, nullified. Accordingly, the mere fact that it was obvious does not, in my opinion, take away from the basic proposition that there was a foreseeable risk of injury. 17 The first appellant also conceded in his evidence, that he recognised that there was a possibility of a risk of someone falling from the platform and sustaining injury. Indeed, in an earlier emanation of the shearing shed, he had placed a guardrail around the platform. He had not replaced it when he was rebuilding the shed after a fire because the shearers were hitting their heads on the guardrail when shearing. That, however, does not eliminate the foreseeability of the very real risk that attended the failure to provide a guardrail or other form of protection around this platform. 18 In Wyong Shire Council v Shirt , Mason J added to the passage to which I have referred, that if the answer to the question posed there be in the affirmative, it is for the tribunal of fact to determine what a reasonable person would do by way of response to the risk. A reasonable response to the risk, in this case, was the provision of a guardrail. Not only was that a reasonable response, it was in fact dictated by the Australian Standards: see Australian Standard 1657-1985. The trial judge properly referred to this in his judgment, noting that whilst the Australian Standards do not have to be complied with as they are without legislative force, they are a factor to be taken into account in determining whether or not there has been negligence. His Honour considered that they were relevant here and it was open to his Honour to do so. 19 According to the Australian Standards a guardrail should have been provided. In the circumstances here, where the evidence established that there was no impediment of any significant kind to the carrying out of the work within the shed, including the work of the rouseabouts, he failure to provide the guardrail was evidence of negligence. Accordingly, there was no error in his finding for breach of duty and accordingly, the grounds of appeal which relate to that issue should be rejected. 20 The appellants contend that even if negligence was established, any such negligence was not causally related to the injuries sustained by the respondent. The appellants' principal case, at trial and on appeal, was that the accident occurred in circumstances where the respondent fell directly backwards down the steps, having caught his right foot between the top step and the platform. They submitted that in that case, and as was apparent on his Honour's finding, any guardrail that ought to have been provided would not have extended across the top of the steps and it could not be said that the failure to provide a guardrail caused the respondent's injuries. 21 At trial, the respondents' counsel conceded that if it was established that the respondent had fallen backwards down the stairs, then causation had not been established. 22 Accordingly, the first step in determining whether this ground of appeal has been made out, is to determine if there was any error in the trial judge's finding that the respondent did not fall down the stairs. His Honour's finding, in that regard, is at para 16 of his judgment. His Honour said: "Though it was put to the plaintiff in cross-examination that he had fallen down the stairs, he denied that. I accept his evidence … that he did not." 23 The appellants contend that this finding in itself contained error because there was no denial by the respondent that he had fallen down the stairs. 24 It is correct to say that there was no direct denial of this proposition. However, the respondents' evidence was, consistently, that he had fallen back off the platform and that his right leg had become caught between the top step and the rim of the platform. 25 The appellants contended that, notwithstanding that was the way the respondent had put his case, the clear effect of his evidence was that he had fallen backwards down the steps. They rely, in particular, upon the following passages in cross-examination. The respondent was shown a photograph of the platform and the steps and he was asked, "And you fell, you said, near the step?". The respondent agreed. He was then asked "Now when you fell, did you fall down those steps?". He answered "I fell - first of all, that rail wasn't there on those steps". That was a reference to a rail which was now shown at the side of the steps in the photograph. The question was put to him again, "Did you fall down the steps?". He answered "I got my legs hooked in them". He was asked "Well, whereabouts was your right leg when you fell?". He answered "My right leg, I don't know where my right leg was but I'm saying to you my right leg went down between the step, the top rung of that step and the board". He agreed that he was not quite sure what happened after the truss came free. He was asked "Where did you end up, to your recollection?". He answered "On the floor". He was asked "And do I take that the top of your body was somewhere on the floor near the bottom of those steps?". He answered "Correct". He was asked "I think you said you had a period of unconsciousness?". He agreed. He was asked then a short question about that and then this question was put. "Do you recall being in that position, that is with your right foot caught under the board, between the top step and the board, and your body at the bottom of the stairs, do you recall that as being the case before you apparently passed out?". He answered, "Yes, that is correct, that was only a very short period of time". The appellants contend that that is clear evidence by the respondent that he fell backwards down the stairs. With respect to the submission, I do not think that is so. The cross-examination, up to that point, had been proceeding quite specifically, on the basis of a series of questions that his body had ended up near the bottom of the steps. In the last question, to which I have referred, the question changed to it being put to him that his body was at the bottom of the stairs. 26 That question involved a double proposition in any event. The answer is equivocal and appears to be a direct response to the last part of the question, that is, that he had passed out after he had fallen. In my opinion the question is not sufficiently direct, nor is the answer sufficiently unequivocal to conclude that the trial judge erred in his finding that the respondent did not fall down the steps. The shift in the question from the line of questioning being pursued up to that point was not put clearly enough to the respondent to amount to an admission by him. It is against all the other evidence in the case which quite clearly was to the effect that he had fallen near the steps, but with his right leg being caught in the steps. Accordingly, in my opinion there was no error in the trial judge's finding in relation to the place where he had fallen and how he had fallen, that is by falling off the platform and not backwards down the stairs. 27 Senior counsel for the appellants informed the Court that the causation question was significantly bound up with that particular finding. As I understood the submission he said that if he was able to establish that the respondent had fallen backwards down the steps, causation would not have been established. As I have already indicated, that was conceded in any event. 28 As this submission developed, senior counsel for the appellants then referred to another finding of the trial judge on causation in para 17 of the judgment. His Honour had earlier made findings about the guardrail. He said a guardrail could have been provided across the front or it also could have returned along the arm of the "U" up to the steps. His findings on causation then followed that same train of reasoning. He said: "I find the [respondent] would probably have grabbed the rail had it ended on the corner, and he would have been restrained by it by falling against it had it run along the end as well." 29 Senior counsel for the appellants contended that his Honour's finding that the plaintiff would probably have grabbed the railing had it ended on the corner was speculation. It was certainly not an inference that was open on the evidence. There may be some merit in this submission, but in my opinion it does not matter. His Honour's alternate finding on causation was clearly open to him. That is, that if the railing had turned along the arm of the "U" up until the steps, then the respondent would have been restrained by it, by falling against it. 30 In my opinion, that finding was open to his Honour even if the respondent was at the time that he was on the platform in effect straddling a portion of the platform which extended along the opening of the steps as well. In those circumstances I am of the opinion that his Honour's finding on causation was open and those grounds of appeal are also rejected. 31 That brings me to the question of contributory negligence. It was submitted on behalf of the appellants that his Honour was in error in finding that the respondent was not contributorally negligent and submitted that a finding of at least 50 percent should have been made. This was an accident which happened in the course of undertaking an activity where a piece of machinery gave way unexpectedly. In those circumstances, I am of the opinion that it has not been established that the respondent failed to take reasonable care for his own safety, and his Honour's finding of contributory negligence should be upheld. Accordingly, I would dismiss the appeal with costs. 32 The respondent brought a cross-appeal based upon his Honour's failure to award damages for past gratuitous attendant care services beyond one year and for failing to award such damages for the future. The underlying basis for this ground of appeal was that his Honour had failed to give adequate reasons for rejecting the respondent's claim for past and future gratuitous attendant care services. 33 For the purpose of the cross-appeal I will continue to refer to the parties as appellants and respondent as I have so far. 34 The respondent's claim for gratuitous care services was that from the time that he had undergone a back operation in May 2002, he required attendant care services of between seven and eight hours per week. Those services included immediately post operative additional care such as assistance with showering and the like, but that thereafter he needed care each week. For example, assistance with putting on his socks and with other aspects of his dress and assistance about the home and the garden. 35 His wife gave evidence in which she said that she provided that care for six to eight hours per week. There was medical evidence which clearly supported that claim, being the evidence of Dr Lewis and Dr Long. Dr Long, in a report of 25 October 2004, gave evidence that considering the respondent's impairment it was reasonable that he receive up to 12 hours domestic assistance each week. Dr Lewis, in a report dated 2 October 2004, gave evidence that he considered that the respondent required 10 to 12 hours a week in domestic assistance. 36 His Honour accepted the respondent's complaints of disabilities. He also said that he accepted his complaints as to his needs " for at least past domestic care ". He noted that it was rare for there to be accurate evidence about times involved in domestic care claims. His Honour then found that as to the past care, that the accident was the sole cause of need for care in and around the home and garden and that this need which arose was about seven hours per week for a period of a year. He allowed therefore the statutory amount of $19 per week making a total allowance of $6,916 for the past. He made no award for the period up to the date of trial beyond that one year period, nor did he make any award for the future, save for an amount for lawn mowing. He did not give any reasons as to why he confined the claim for services to a period of one year, nor did he give any reasons as to why he did not make any such award for the future. Nor did his Honour explain why he allowed the claim for lawn mowing services but not for other aspects of the claim for attendant care services. 37 The respondent submitted that the medical evidence supported his case that his medical condition had plateaued at about the time or shortly after the time of the operation and that there was no evidence of a deterioration in his condition. His evidence at trial was that he continued to need and in fact received those additional care services from his wife. In those circumstances it was incumbent upon his Honour to give reasons why he only made the award for a closed period of one year, which in the manner in which the case was run, was clearly for the year following the respondent's back operation in May 2002. 38 In his submissions, senior counsel for the appellants advanced numerous reasons why his Honour may have come to that decision. Again, with respect to senior counsel who was putting all matters that he could on behalf of his client, the more reasons he put the more speculative the matter became. That underscored the appellable failure of his Honour to give reasons. That failure having been established it is open to this Court to itself determine the matter, because this is not a matter which was credit based and senior counsel for the appellants did not oppose that course being taken. 39 In circumstances where the doctors were not challenged as to the need for continuing domestic assistance, where there was no evidence to the contrary and where the respondent's own evidence and that of his wife was for a continuing need, I am of the opinion that the award should have been ongoing at the same rate as his Honour found for the year immediately following the operation. There is one qualification to that. His Honour made a separate allowance for lawn mowing that was provided to the respondent. His Honour observed in that regard that he had been paying $7.50 per hour to have his lawns mowed and that that has been continuing. His Honour made an allowance of about half an hour a week for that. 40 It would seem therefore that the allowance for future care should be an allowance of six and a half hours from May 2003 up to trial and into the future. 41 Having reached that conclusion, it is not necessary for me to enter into an issue raised as to whether or not s 15 of the Civil Liability Act requires that there be a threshold requirement that must be satisfied as from the date of hearing. In a decision of this Court in Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388 that view was taken. Mr Maconachie did not seek leave to re-argue that decision because he said that on the respondent's case it was not necessary to do so. As this will be a matter which will undoubtedly be revisited by this Court from time to time, it is appropriate for me to record my doubt as to the correctness of that decision. I say no more than that. We have not had considered argument on the matter and we have not had time to give considered reflection to it. McGregor's decision has not been directly challenged, and even on the view taken in McGregor , the respondent would have been successful on this claim. Accordingly, I would allow the cross-appeal with costs.

Sheridan & Anor v Borgmeyer

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Judgment (29 paragraphs)

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