State of New South Wales v Williamson

State of New South Wales v Williamson - [2005] NSWCA 352 - NSWCA 2005 case summary — Zoe

[28]

In assessing what steps should reasonably have been taken to avoid risk of injury, where the employer is the State rather than a "subject", the State must demonstrate some characteristic or quality which would allow departure from the norm on the basis that exact equivalence in approach is not "possible". This would seem to be the statutory context in which reliance was placed upon Brodie and Crimmins . 9 The relevance of Crimmins in this context is limited. It is true that Mr Crimmins sued the defendant for damages due to the inhalation of asbestos fibres during his employment in stevedoring operations, which resulted in him contracting mesothelioma. However, the liability of the defendant was not that of an employer (because it did not employ Mr Crimmins) but that of a statutory authority which had power to control conditions on the waterfront where Mr Crimmins worked. The issues in that case were whether the defendant was in such a relationship as to establish that it owed Mr Crimmins a duty of care under the general law and, if that were established, whether the imposition of such a duty was inconsistent with the statutory scheme under which it operated. Neither of those questions arises in the present case. 10 As noted by the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie, a line of authority (including Crimmins) had established that "the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of person or property of citizens as to impose upon the authority a duty of care": at [102]. The question for the Court in Brodie was whether the so-called "highway rule" excused the Shire Council from responsibility for injury suffered on a highway caused, not by any negligence in the construction of the highway, but by a failure adequately to maintain and repair the highway. At [104] the joint judgment stated: "To postulate that, without the 'highway rule' and with the principles of negligence, statutory authorities will be subjected to fresh, indeterminate financial hazards which the common law will ignore should not be accepted. … Secondly, financial considerations and budgetary imperatives may fall for consideration with other matters when determining what should have been done to discharge a duty of care."

[31]

Reasonable steps to rectify danger 15 It is convenient to deal together with the various grounds of appeal directed to his Honour's conclusion that the State had failed to take reasonable steps to avoid exposing the Plaintiff to a foreseeable risk of harm. The passage said to reveal error in this respect was in the following terms: "Included in the plaintiff's evidence … is a quotation for what would have been temporary repairs to the driveway, and the figure which appears … is a figure of less than $3,000 to carry out some temporary work that would obviate the risk of injury to members of the public and the police service. In my opinion, having regard to the history of injury, including the injury to the plaintiff, it was unreasonable, indeed it was incumbent upon the defendant to expend such money, at least, in the rectification of what was a foreseeable risk of injury." 16 The complaint made of this passage was that it fixed on a figure for the cost of repairing some 25-30 square metres of the driveway. This figure, it was submitted, should not have been relied upon for two reasons. The first concerned the imprecision of the Plaintiff's evidence in establishing the pothole into which he stepped. The second complaint was that it was irrational to focus on one particular area of the driveway when both police officers and public had access to the whole of the driveway and indeed to an adjoining car parking area, all of which was severely potholed. These complaints will be addressed in turn. 17 The first complaint was based on an assessment of the Plaintiff's evidence. Broadly speaking, the entrance to the police station may be described as on the west side of a driveway between two public streets in St Marys. The entrance and reception area led off a courtyard. Near the entrance was a recessed area of the driveway. There were rubbish bins along the wall of that recessed area, but the recess was sufficient to allow police vehicles to park there, at least if parked at an angle, without blocking the driveway. It was in that area that the vehicle intended to be used by the Plaintiff was parked on the night in question. The nature of the area is no longer apparent, the surface of the driveway and the car park having been sealed since the accident to the Plaintiff. Accordingly, the evidence at trial depended significantly on a number of photographs of the area taken before the repair works were completed, together with a hand drawn plan. The plan, as tendered in the Plaintiff's case, contained handwritten numbers indicating the position shown on certain photographs, together with a cross marking the spot where the Plaintiff said he had fallen. 18 The cross appears to indicate a spot a metre or so beyond the edge of the walkway outside the police station entrance. The evidence of the Plaintiff was that, in order to get to the driver's side door of the car he had to step off the walkway onto the driveway and proceed around the rear of the car. According to that description, the pothole which caused the injury was near to the rear corner of the car, on the driver's side. Although on the night in question the parked car would have prevented the Plaintiff walking directly from the position marked by the cross to the position where he now located the pothole, it would appear to be a distance of some 3 or 4 metres, at a diagonal to the walkway. 19 The first ground of appeal referred to the Plaintiff's "inability to identify with precision the particular pothole" at which he fell. This factual premise was explained to the Court on the basis of counsel's cross-examination of the Plaintiff. That his evidence changed as to the position of the pothole identified may be accepted, but is not to the point. Towards the end of the relevant passage of cross-examination, the following exchange occurred: "Neil [Counsel for the State]: I have so far, your Honour, been painstakingly fair to the witness, could I ask in fairness that overnight that part of the transcript might be checked from the transcript service to see whether there could be any error? His Honour: I think it is correct. Cranitch [Counsel for the plaintiff]: I am not challenging it, your Honour. Neil: Thank you. Q: So you can't tell the Court what you meant there by saying you went around the offside, from behind the offside? A: No, I can't. I went to the offside from behind the rear of the car. His Honour: I don't have any difficulty with it, Mr Neil. Cranitch: Neither do I. His Honour: I think you are the only one."

[32]

If an awkwardness of expression in one passage gave rise to some potential for confusion, it was clarified. The course taken by the Plaintiff on the night in question, over a few metres, was tolerably clear. Where he fell was tolerably clear. There appeared to be a pothole identifiable in the photographs which coincided with the area where he fell. 20 In any event, the purpose of this factual excursus was to establish that one could not be sure that the quotation for work of a temporary nature, covering 25-30 square metres, would have covered the relevant pothole. There are three answers to this ground of appeal. First, the factual premise as to the failure to identify the particular pothole, is not made out. Secondly, the area of the proposed temporary repair work was not shown to be significantly smaller than the area which included that across which the Plaintiff walked to get to his car. Thirdly, the trial judge did not limit his finding to such work as could be done for less than $3,000: rather, he suggested that "at least" that work should have been done. No doubt it may be inferred that he thought this would have been sufficient to remove the relevant danger: that inference is not shown to be wrong. 21 The second proposition on which the State relied was that it was simply not sensible to require a small area to be resurfaced on a temporary basis. Joined with that proposition was the argument that, acting entirely reasonably, officers of the State had determined that the whole driveway and car park should be permanently sealed, a course which was being undertaken with reasonable expedition. 22 There are a number of tensions within the position pursued by the State, which need to be identified. Before doing that, it is convenient to note that the Plaintiff filed a notice of contention seeking to have the judgment below affirmed on a ground other than that relied upon by his Honour, namely that the State was negligent "in that it failed to expedite the repair of the whole driveway". The validity of that contention depends upon the manner in which the Plaintiff pleaded his claim and the evidence presented at trial. So far as the pleading was concerned, it included a particular that the defendant failed "properly or adequately [to] repair the potholed driveway". As will appear below, this pleading was supported by evidence, so that the contention is available, if the relevant findings of fact can be made. 23 A significant strength in the Plaintiff's case (albeit one which the State sought to turn to its advantage in a manner to be discussed) was the fact that there had been a history of injuries and accidents at St Marys police station. It appears that the Plaintiff's accident was the fifth significant incident in less than two years, each involving people slipping or falling in potholes. The more serious incidents were identified in the judgment below. However, in preparing a report for the manager, Occupational Health and Safety Section, in early July 1999, the local area manager stated: "Senior Constable Auld was injured whilst walking down the driveway of the St Marys police station. This injury is one of five minor injuries sustained by staff members under similar circumstances at the St Marys police station within the last six months. The condition of the driveway has been deteriorating for some time."

[34]

This material, which was produced a month before the Plaintiff's accident, demonstrated, according to the State, that it had identified the extent, nature and seriousness of the situation and was acting with all reasonable expedition. The incidents, it was noted, were by no means limited to the driveway, let alone the area immediately outside the entrance to the police station. One significant incident, which resulted in a lengthy memorandum, involved a police officer, Mr Dickinson, on 25 May 1999. Constable Dickinson jarred an ankle when he stepped in a pothole in the car park. The report noted: "The incident happened after dark and I believe has two separate causes, the first is the state of the car park area at St Marys. The holes and loose surface have raised some concerns as to potential for injuries to members of the service or of the general public. The second is the lack of lighting." 25 The extent of the problem may readily be conceded, although it does not follow that immediate temporary repairs should not have been undertaken on a piecemeal basis. If the latter course had been undertaken, it would have been entirely reasonable, as the trial judge suggested, to start with the area in which the Plaintiff injured himself, which was immediately outside the entrance to the police station and was likely to be an area where vehicles needed for urgent calls were to be parked. It was also the area most likely to be used by members of the public. 26 Nevertheless, the difficulty with the State's position is not only its assertion that it was reasonable to undertake comprehensive and permanent repairs to the exclusion of temporary repairs, but the speed with which it had responded to a known problem. The first two incidents recounted by the trial judge occurred in October and November 1997 respectively. Each involved persons stepping in potholes on the driveway. The colour photographs before the trial judge, which demonstrate a serious state of disrepair in the driveway and other areas, were apparently taken on 26 May 1998. The Plaintiff gave evidence that the state of the driveway was worse at the time of his accident. In any event, it is not necessary merely to infer that relevant officers were aware of a serious risk of injury in May 1998: a report by Mr Martino dated 16 December 1998 recorded that there was an approved project "on the 1998/99 Minor Capital Works Program" in relation to accommodation at St Marys police station. Whilst the memorandum noted that funds had been reduced from $250,000 to $140,000 in the 1998/99 financial year, it was also noted that the balance would be available in the following financial year. Under the heading "Current Position" Mr Martino noted that stage 1, involving the conversion of part of an existing holding yard to provide parking for police vehicles was underway and would shortly be completed. Stage 2 involved the relocation of two demountable buildings to St Marys, with completion programmed for mid-March 1999. The remainder of the memorandum stated: "Stage 3: consists of alterations to the existing police station to rationalise existing accommodation, upgrade the Customer Service area, provision of additional lighting to car park/holding yard and the repair of the existing bitumen driveway. Construction is programmed to commence mid-March, 1999. Department of Public Works and Services have been engaged to administer the project works, which are programmed to be completed in July, 1999."

[42]

In answering that question, his Honour distinguished the cases involving local authorities, and referred to the remarks of Hayne J in Crimmins (supra) at [276] and [277] to the following effect: "[276] The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty 'of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury'. [277] Both the power to direct and the power to control are important. As was said by Mason J in Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688: 'The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employees safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken.'" 34 The words of the trial judge complained of in the present case, taken out of context, may suggest an absolute obligation was being imposed. However, it is indisputably clear from other passages in the judgment that his Honour well understood and applied the principle that what was required of the employer was to take reasonable steps. The comparison being made in the passage complained of was a comparison between the respective positions of the employer and the employee in relation to an obvious risk, which it was within the power and control of the employer to remove. No error is demonstrated on the part of the trial judge in this regard. 35 Ground 8 in the notice of appeal asserted that his Honour erred in finding that the pothole was not an obvious danger: to the contrary, his Honour held that it was and the ground was abandoned in the written submissions.

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Judgment (48 paragraphs)

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Legislation Cited (4)

Cases Cited (11)