Taouk v Waste Recycling & Processing Service of NSW & Anor

Court of Appeal (NSW)|2003-06-03|Before: Sheller JA, Beazley JA, McColl JA, Coll JA

CITATION : Taouk v Waste Recycling & Processing Service of NSW & Anor [2003] NSWCA 273 HEARING DATE(S) : 3 June 2003 JUDGMENT DATE : 25 September 2003

JUDGMENT OF : Sheller JA at 1; Beazley JA at 2; McColl JA at 3 DECISION : Appeal dismissed with costs

CATCHWORDS : NEGLIGENCE - occupier's liability - breach of duty of care - appellant injured while removing rubbish from his truck at rubbish tip - appellant an independent contractor who had frequented the tip previously - whether appellant had been directed to the proper area for disposal of his rubbish load - whether the respondent undertook a proper inspection of loads - EVIDENCE - failure to call witness - Jones v Dunkel inference - APPEAL - admission of fresh evidence on appeal - D LEGISLATION CITED : Supreme Court Act 1970 Atkins v National Australia Bank (1994) 34 NSWLR 155 Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241 Burns v Hoyts Pty Limited (2002) Aust Torts Reports 81-637 Dovuro Pty Ltd v Williams [2003] HCA 51 Drotem v Manning [2000] NSWCA 320 CASES CITED : Jones v Dunkel (1959) 101 CLR 298 Hackshaw v Shaw (1984) 155 CLR 614 Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141 R v Birks (1990) 19 NSWLR 677 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 University of Wollongong v Mitchell [2003] NSWCA 94 Van Der Sluice v Display Craft Pty Limited (2002) NSWCA 204 Wyong Shire Council v Shirt (1980) 146 CLR 40 Joussef Taouk (Appellant) PARTIES : Waste Recycling & Processing Service of NSW (First Respondent) Eric Newham Holdings Pty Limited (Second Respondent) FILE NUMBER(S) : CA 40580/02 COUNSEL : M S Abdul-Karim (Appellant) R S Sheldon (Respondents) John McEncroe & Co. (Appellant) SOLICITORS : Lynn Boyd (First Respondent) Ebsworth & Ebsworth (Second Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT DC 6277/00 FILE NUMBER(S) : LOWER COURT Gibb DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40580/02 DC 6277/00

Joussef TAOUK v WASTE RECYCLING & PROCESSING SERVICE OF NSW & ANOR

The appellant (the plaintiff below) carried on business as an independent contractor operating a rubbish removal truck. On 31 August 1999, he suffered injuries while attempting to unload metal frames at Chullora Tip, which was owned and managed by the first and second respondents (the defendants below) respectively.

The plaintiff brought proceedings against the defendants in the District Court, alleging that his injuries were suffered as a consequence of the defendants' negligence. He submitted that, had he been properly directed to the recycling area, rather than the demolition area to which he did in fact go, his load would have been assessed as unsafe, and he would have been turned away.

The trial judge found that the plaintiff had been directed to the recycling area. She found no breach of duty by either of the defendants and, accordingly, entered judgment in their favour and ordered the appellant to pay their costs. This appeal was brought from that judgment.

HELD per McColl JA (Sheller JA and Beazley JA agreeing), dismissing the appeal:

Gibb DCJ did not err in finding that the appellant had been directed to the recycling area.

Gibb DCJ did not err in finding the respondents had not breached their duty of care. The respondents had devised a system to deal with the risk posed by the enterprise they conducted. The appellant had not demonstrated that the respondents were acting unreasonably in failing to devise a "watertight" system that would have prevented him attempting to unload the metal frames.

The respondents were entitled to expect that the appellant would take reasonable care for his own safety. They were not in breach of their duty of care in failing to take steps necessary only to accommodate a person who chose to go off on a foolish frolic of his own.

There was no room for the drawing of any Jones v Dunkel inference favourable to the appellant due to the weighbridge operator or the recycling officer not being called.

The appellant's application to adduce fresh evidence was misconceived. It was, in truth, an application of the nature of that described in R v Birks (1990) 19 NSWLR 677. In any case, had his counsel at the trial cross-examined on the basis foreshadowed it is highly improbable that the outcome of the trial would have been any different.

Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40580/02 DC 6277/00

Joussef TAOUK v WASTE RECYCLING & PROCESSING SERVICE OF NSW & ANOR

3 McCOLL JA: The appellant carried on business as an independent contractor operating a rubbish removal truck. He was injured while on the first respondent's premises, the Chullora Waste Management Centre (the "Chullora Tip"), which was managed by the second respondent. He alleged that his injuries were suffered as a consequence of the respondents' negligence. The trial judge found no breach of duty by either of the respondents and, accordingly, entered judgment in their favour and ordered the appellant to pay their costs. This appeal is brought from that judgment.

4 In my opinion the appeal should be dismissed for the reasons I set out below.

5 The appellant was an independent contractor operating a rubbish removal business. He removed rubbish from building sites on behalf of builders for a fee. He transported that rubbish in his Mercedes Benz 12 1/2 ton tip truck for disposal to, among other sites, the Chullora Tip. The evidence established that prior to his accident on 31 August 1999, he had been to the Chullora Tip to deposit loads on some thirty-two previous occasions.

6 On 31 August 1999 he arrived at the Chullora Tip at about 7.00 am. At the time he was carrying on his truck a load of rubbish and two metal "H" frames, each of which weighed close to 200 kilograms.

7 The appellant spoke to a person in the weighbridge office. He gave evidence that the weighbridge operator, whose name he said he did not know, saw that he was carrying the two metal objects and indicated to him where he should go to dispose of them. The respondents did not charge for the disposal of metal items. It appears that it was necessary, therefore, for the metal objects to be removed from the appellant's load before the rest of the rubbish was weighed so the appropriate charges for disposing of that rubbish could be calculated.

8 The appellant gave different accounts of the area to which he said the weighbridge officer directed him. I shall return to that evidence in due course. The uncontradicted evidence, however, was that the appellant in fact went to an area known as the demolition area, climbed onto his truck and tried to remove the large metal objects by himself. He said that when he tried to move one of the pieces of metal it somehow "pushed" him off the truck. Although the appellant had no recollection, at the time of the hearing, of how this had happened, when he landed on the ground he saw one of the metal beams beside him. It was put to him in cross-examination that he had told an ambulance officer who attended after his accident that one of the metal objects had fallen 2 metres off the truck and struck him while he was trying, single handed, to unload it from his truck. Although he denied that he had given that information to the ambulance officer, it appears that whether he was on the ground prior to the accident or on the truck and fell to the ground, one of the metal beams struck him. He suffered severe injuries including fracturing his pelvis on both sides, a fractured right heel and a crush fracture to his sacrum.

9 The plaintiff claimed that his injuries were caused by the negligence of either or both the respondents. With the exception of paragraph (e), his particulars of negligence were expressed in the generic manner common to many pleadings. Thus, he complained, that either or both of the respondents had been negligent in:

"(a) Failing to take any, or any adequate, precautions for the safety of the Plaintiff;

(b) Exposing the Plaintiff to a risk of injury which could have been avoided by reasonable care;

(d) Failing to observe that the Plaintiff was in a position of peril in the circumstances;

(e) Failing to provide proper and suitable equipment for use by the Plaintiff for removing the said metal from the back of his truck, particularly a crane with a magnetic head."

10 The respondents denied the allegations of negligence. In addition they pleaded that the appellant's injuries were contributed to by his own negligence in the following respects:

"(a) Attempting to unload heavy metal when he knew or ought to have known of the danger involved;

(b) Failing to seek assistance with unloading the truck; (c) Failing to use the tipper of the truck to assist in unloading the steel;

(d) Failing to take any reasonable care for his own safety."

The decision below 11 The trial judge made detailed findings about the system the respondents had in place concerning the examination of loads. I have underlined some of the more significant findings. She found:

"1 The system was that customers would arrive at the entrance at the weighbridge and speak to the weighbridge operator. The weighbridge operator was located within an office adjacent to the weighbridge, and would discourse through a window with the driver of the arriving vehicle, also in his vehicle. That happened on this day.

2 The weighbridge officer made no detailed inspection of the load, and sometimes could not see inside the trays of vehicles with high-sides or under load covers or tarpaulins, etc. That was so in the case of high-sided vehicles such as the plaintiff's tipper truck.

4 The weighbridge operator would ask the customer what was in the load. The weighbridge operator had only limited capacity to assess the content of the load being delivered and relied upon the customer for advice as to the contents. That system was supported by commercial incentives since no charge was levied for metal, which was disposed of to a recycling area, although there was a charge for other refuse.

5 What the customer would be told to do depended upon the contents of the load. Relevantly, customers were told to dispose of recyclable material separately from general refuse before the latter was weighed for the purposes of imposing relevant charges. Customers were then told that there were no facilities to assist them in the unloading. Customers would be directed to the relevant designated area by being directed to follow lines/arrows of various colours marked on the roads.

6 There were signs at the entrance to the Chullora Tip advising of the categories of exclusions (but not the unmanageable rule) and that recyclable material (relevantly stated to include steel) was to be separated for specific disposal according to its type. Mr Taouk was familiar with all this.

7 The Chullora Tip did not accept certain cases [sic: I assume this should be "classes"] of waste, relevantly liquid waste, asbestos or other mineral fibrous waste, "oversized waste" meaning timber or metal that was too long for the 3 or 4 metre deep pits: i.e., something longer than 3 or 4 metres that could not be broken up for disposal. Nor would the Chullora Tip accept metal weighing in excess of 200 kg or which was, in Mr Newcombe's words "unmanageable", by which he meant that it could not be manipulated or handled by the driver/occupants of the arriving vehicle.

8 If the vehicle was carrying waste of a type that was not acceptable at the Chullora Tip, the weighbridge officer would turn the driver/customer away at the weighbridge. Likewise, if the weighbridge officer recognised the waste to be unmanageable, the customer would be turned away from the premises.

11 If the customer said that he had steel/metal or other recyclable material in his load, he would be directed to the recycling facility. The driver would be directed (by signs + the weighbridge officer) to report to the recycling area by following a designated coloured line that (relevantly) led to the recyclable area.

12 Upon arrival there, the recyclable material would be assessed by the recycling officer; and, if properly so classified, the waste disposed of in the appropriate recyclable bins according to the relevant designations/directions before the vehicle returned to be weighed and general refuse disposed of into the general area.

13 The recycling officer would direct the driver as to where to dispose of the material, and would turn away the material if it was unmanageable. That assessment was made on the basis of an ad hoc assessment of the "health and safety side of things" depending on whether the item/waste could be lifted off and placed in the (recycling) bins safely without danger to the person delivering the waste (or anyone else).

14 The Chullora Tip would accept metal of a "manageable length" under 200 kg in weight. There was no publication of the rule that the Chullora Tip applied to the effect that a load would be permitted to be unloaded only if it was considered to be "manageable". That was a judgment made by the recycling officer in relation to each individual load; and was thus somewhat ad hoc. 15 The plaintiff knew that, as he knew that he would receive no assistance in unloading. The category of "manageable waste" was somewhat subjective, but reflected an assessment made on the basis of the load and the delivery vehicle and the precise contents. Thus a tipper vehicle that was to unload by tipping might have been said to have a manageable load although without the tipping facility the opposite view might be reached.

16 No assistance was provided to customers (such as Mr Taouk) in the unloading of their vehicles. It was company policy - and known to Mr Taouk - that none of the defendant's equipment was available for use by or for customers in the unloading. If the staff at the Chullora Tip considered that it was unsafe to unload as the customer proposed, the customer would be turned away from the facility, rather than assisted in the unloading.

17 The recycling station was proximate to a transfer station, a distance behind the weighbridge. If the weighbridge officer directed someone to the recycling station, she would alert the recycling officer, or the staff member assigned to that task that day. If there was no one actually stationed in the recycling area/scrap metal area, the responsible/designated staff member would then attend at the recycling area/scrap metal area.

18 There is a second area where "bulk" recyclable material is disposed of: the demolition area. That is not far from the recycling station, and slightly closer to the weighbridge/entry. It is about 10-15 metres away from the recycling station - effectively on the other side of the internal roadway - and closer to the weighbridge. The procedure applied at the defendants' Chullora Tip was that customers were not directed to the demolition area initially. Customers were directed to report to the recycling officer at the recycling area first; or, alternatively, they attended the demolition area by some prior arrangement.

19 Mr Newcombe said that the demolition area was reserved for bulk or overflow disposal of metal, and that the area was used by prior arrangement, and commonly by councils disposing of scrap metal in bulk. Mr Taouk proffered a different version of this. He said that he had previously been to the demolition area, as he had been to the scrap metal/recyclable area, and "they give you permission" "at the office"."

12 The trial judge found that the appellant knew from the start of the exercise, in particular before he entered the Chullora Tip, that he would not be able to lift the "H" frames on his own. She found that they had been loaded onto the truck by a backhoe, that the only way he could remove them from the truck was to push or pull them off, and that he had attempted to do that. She also found that he knew Chullora Tip would not give him any assistance to unload the "H" frames. He did not, in fact, ask for any assistance.

13 Significantly, the trial judge found that when the appellant attended the Chullora Tip on 31 August 1999: "The weighbridge officer observed that there was metal on the tipper tray. She told Mr Taouk to dispose of it in the appropriate area (the scrap metal area) - which she indicated with a hand gesture (pointing). Mr Taouk understood the message. He knew that the weighbridge officer would send him to the recyclable area - as she did. I find that she directed him to the recycling area to see the recycling officer, and that he was sufficiently familiar with the system applied at the Chullora Tip to know that he was being directed to the recycling station area - not the demolition area." (emphasis supplied)

14 The trial judge accepted that the respondents, as the owner and manager respectively of commercial waste disposal premises, owed duties of care to the appellant whilst he was on the premises. The measure of the discharge of these duties was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. [1]

15 Her Honour accepted that in considering the content of the duty of care the respondents owed the appellant she should be guided by Kirby P's observations in Brady v Girvan Bros Pty Limited (1986) 7 NSWLR 241 at 246. Speaking of the duty of care owed by occupiers of a commercial facility who invite people to that facility knowing that those invitees might carry with them or deposit upon the premises hazardous or dangerous items, his Honour observed:

"[The] law imposes a duty on the occupier of premises, the requirements of which vary with the circumstances. In the circumstances of a private dwelling, with relatively few visitors, the scope of what might reasonably be expected will be much more circumscribed. In the case of a public facility, such as a shopping mall, with many visitors of all ages ... the requirements of the duty will be more substantial."

16 That passage in Kirby P's judgment was referred to recently in Drotem Pty Ltd v Manning [2000] NSWCA 320 at [48] where Powell JA (with whom Beazley and Stein JJA agreed) observed that in the case of those occupying places to which members of the general public are able to have resort:

"... [The] scope of duty will vary according to the circumstances and, in particular, the nature and size of the place, the nature of the activities carried on within it, and the likely characteristics of the members of the general public who might reasonably be expected to attend the premises."

17 The trial judge also referred to Morgan v Sherton Pty Ltd (1999) 46 NSWLR 141 where Sheller JA (with whom Mason P and Fitzgerald JA agreed) pointed out that although the duty of an occupier extends to taking care against risks arising from an entrant's failure to exercise reasonable care for his or her own safety:

"... This does not necessarily extend to risks arising from the entrant deliberately behaving in a foolhardy or reckless manner such as climbing over or attempting to climb over a fence along the edge of a cliff. This may be foreseeable rather than far-fetched or fanciful but it does not follow that the occupier's duty extends to protect the entrant from the risk of injury that comes with such conduct. In the words of Toohey J and Gummow J 'the risk existed only in the case of someone ignoring the obvious' and the scope of the duty does not extend to require occupiers to protect entrants from such risk."

18 The passage from Toohey J and Gummow J cited in Sheller JA's judgment in Morgan was from their Honours' decision in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. That case underlines the proposition that in considering whether an occupier has breached its duty of care, a relevant factor is that the occupier is entitled to assume most entrants will take reasonable care for their own safety. [2]

19 The trial judge found that the appellant had not established the respondents had breached their duty of care. She accepted the respondents' submissions that the measures the appellant submitted they should have adopted to guard against the foreseeable risk (inspecting loads upon arrival, providing unloading equipment, supervising all unloading) would have required the respondents to operate their business in an entirely different manner to the business they conducted, and, importantly, to the business they represented to the public.

20 Her Honour found the risk to which the appellant was exposed was obvious to him, as a person exercising reasonable care for his own safety. She concluded there was no breach of the respondents' duty of care. Rather:

"This is a case in which the invitee brought with him onto the premises the very peril by which he came to grief, and complains that he was not prevented from his own 'sillier activities' (to adopt the description applied by the plaintiff's counsel), in trying to manoeuvre that object."

21 Finally, her Honour observed that had she found any breach of duty by the respondents she would have found the appellant guilty of contributory negligence in all the respects particularised. Further, she would have assessed his contributory negligence as being in the order of 80% as the respondents had apparently submitted although, in her Honour's view, there was a strong case for a higher apportionment in the order of 90%.

22 Before the Court of Appeal, the appellant's counsel described his actions as "foolish" but nevertheless submitted the trial judge should have found the respondents had breached their duty of care.

23 There were eleven grounds of appeal but those can be effectively reduced to the following propositions:

(a) that the trial judge wrongly found that the appellant was directed to the recycling area rather than to the demolition area where he was injured.

(b) that the trial judge should have found that the respondents breached their duty of care to the appellant in failing to reject his load before he got to the demolition area.

(c) that the trial judge ought to have found that the respondents were negligent in that they failed to devise a watertight system - meaning one which would prevent a "fool" from engaging in "foolish conduct".

(d) that the trial judge ought to have found that the first respondent was negligent in that its system of assessing the content of a load of rubbish to be delivered to the Chullora Tip depended upon persons such as the appellant forming their own opinion as to whether or not their loads could be safely disposed of without assistance from personnel or machinery made available by either respondent.

(e) that the trial judge erred in failing to take into consideration the absence of evidence from a weighbridge operator said to be relevant to the safety system in place on the day of the appellant's accident.

(f) that the trial judge was in error in preferring the evidence of an employee of the second respondent, Mr Newcombe, the site Manager at the Centre on the day the appellant was injured, insofar as that evidence related to instructions given to the appellant at the weighbridge.

24 The last two grounds of appeal were added by way of amendment on the day the appeal was heard.

25 Despite the numerous grounds of appeal, the issue which lay at the heart of the appeal as outlined orally was the appellant's submission that if he been directed to take his truck and his load to the recycling area,[3] his load would have been inspected by the recycling officer, it would have been detected that it could not be safely unloaded at the Chullora Tip and he would have been turned away.

26 In order to succeed in that ground of appeal, it was necessary for the appellant to persuade the Court that the trial judge erred in a manner susceptible to appellable review in finding that he had been directed to the recycling area. That proposition was unsustainable in light of the following passage in the appellant's cross-examination which clearly supported the trial judge's factual finding:

Q. You see what I'm suggesting to you is that when you attended at the office on 31 August 1999 all you told the operator was that you had metal and rubbish in your truck? A. The steel from the top and the rubbish down.

Q. When she told you to go and put the metal over there you knew where the metal goes, you knew that she was referring you to the area where recyclable metal was received? A. Yes. [4] Yes.

Q. And to reach that area you would drive forward from the office and follow the road round a kerb until you come to the area where the recyclable bins were? A. Actually you had to go from the office you know to the right side it's after the office where she told me to go.

Q. You drive past the office and follow a road to where the recyclable bins are is that correct? A. Actually I know where to go to tip the metal.

27 Counsel for the appellant also challenged the trial judge's conclusion that the appellant had been sent to the recycling area to the extent it was based on Mr Newcombe's evidence of a call he had received from the weighbridge operator on the two-way system "that there was a recyclable person going down to the recycle yard."

28 The challenge to this evidence, to the extent it could be discerned, was linked to the appellant's complaint that the respondents had not called the weighbridge operator to give evidence. I will return to this in due course. Suffice it to say, at this stage in the light of Mr Newcombe's evidence (which was not objected to) and the appellant's evidence which I have set out above, there could be no prospect of a successful challenge to her Honour's finding that the appellant was sent to the recycling area.

29 I interpolate at this stage to note that counsel for the appellant's oral submissions departed significantly from his written submissions in which it was accepted that when the appellant spoke to the weighbridge officer and told her the content of his load he was directed to follow coloured line markings directing him to the recyclable area.

31 The appellant next submitted that the respondents should have had a "watertight system that acts as a sieve to exclude or filter out dangerous and hazardous weight loads." This system, it was submitted, should have operated as drivers passed the weighbridge window, leading at that stage either to acceptance of the waste meant for disposal or rejection of the load. It was submitted that if that system had been in place on 31 August 1999 the appellant's load would have been rejected and he would, presumably, have been sent away - although even this proposition was not clearly articulated.

32 The respondents submitted that the appellant was a skilled and experienced contractor who came to the respondents' premises and who exercised his own judgment to determine how to load and unload his vehicle.

33 They relied upon the observations of Heydon JA (with whom Meagher JA and Foster AJA agreed) in Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [74] [5]:

"... It would have been reasonable for the defendant to assume that he, as a skilled and experienced contractor in that line of work, would have perceived and guarded against ... dangers ... all citizens can safely and reasonably assume that each normal adult human being acting autonomously and voluntarily will not incur unnecessary and blatantly obvious risks. The assessment of risks in those areas is for the judgment of each normal adult in the light of the particular adult's capacity ... in view of the interposition of the judgment of the workmen between the task which the defendant had engaged them for and any risk of injury, the risk of injury was not reasonably foreseeable."

34 The respondents submitted that they were in an even stronger position than the defendant in Van Der Sluice because they had not engaged the appellant, rather they had offered him the use of a facility to pursue his own business. They submitted they were entitled to assume, as was the defendant in Van Der Sluice, that the appellant was a skilled and experienced person who would perceive and guard against dangers relevant to the task he was undertaking. They submitted that the appellant's injury was suffered by either a defect in the manner in which his truck was loaded originally or the way in which he went about the task of unloading it.

35 In his written submissions, counsel for the respondents pointed out that the submission that they should create a "watertight" arrangement to exclude dangerous and hazardous waste loads would contradict the Wyong Shire Council v Shirt (1980) 146 CLR 40 test of the reasonable response to a foreseeable risk of injury. The respondents also pointed out that the appellant knew that the system proposed was not that which they employed, that he knew the condition of his load and chose the method and place of disposal with full knowledge of those matters. 36 In evaluating the competing submissions it is important to recall that this is not a case where the respondents had no system to deal with the clearly foreseeable risk of danger to persons disposing of unwieldy objects at the Chullora Tip. As the trial judge's careful findings which I have set out in detail record, the respondents had established a system which would have enabled identification of the fact that the H frames were unmanageable at their premises and would have led to the appellant being turned away, presumably to dispose of his metal materials at a site where unloading facilities were provided. The appellant does not challenge the system the respondents had implemented in terms. Rather, his submission is that the respondents ought to have devised an entirely different system operating at the entry to the Chullora Tip.

38 The proposition that the respondents ought to have created a "watertight" system aspired to a level of perfection which human ingenuity to date has not been able to create even in the safest of enterprises. Further, as McHugh J pointed in Dovuro Pty Ltd v Wilkins [2003] HCA 51 at [34]:

"If negligence law is to serve any useful social purpose, it must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community or, in cases of expertise, of the experts in that particular community. To hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute ..."

39 Counsel for the appellant also submitted that the respondents had breached their duty of care in failing to have a "recycling officer in the demolition area and in failing to lock the demolition area." These submissions were made even though no such case appeared to have been advanced at trial, they were not the subject of any ground of appeal and did not appear in the appellant's written submissions.

40 Further, as McHugh J also observed in Dovuro Pty Limited v Wilkins ([at 38]):

"A defendant is not negligent merely because it fails to take an alternative course of conduct that would have eliminated the risk of damage. The plaintiff must show that the defendant was not acting reasonably in failing to take that course. If inaction is a course reasonably open to the defendant, the plaintiff fails to prove negligence even if there were alternatives open to the defendant that would have eliminated the risk." (emphasis in original)

41 This, of course, is not a case of inaction on the part of the respondents. They had devised a system to deal with the risk posed by the enterprise they conducted at their premises. The appellant did not establish below, and has not established on appeal in my opinion, that the respondents were acting unreasonably in failing to devise the "watertight" system that the appellant proposed. [6]

42 There was abundant evidence that the appellant knew what the procedure was, and that he was directed to go to the recycling officer in the recyclable area, but instead chose to go to the demolition area. It cannot be said, in those circumstances, that the respondents were in breach of their duty of care in failing to take steps necessary only to accommodate a person who chose to go off on a foolish frolic of his own. The respondents were entitled to expect that the appellant would take reasonable care for his own safety.

43 In my opinion the evidence amply supported the trial judge's conclusion that the respondents had not breached their duty of care.

44 Accordingly, the grounds of appeal which challenge the safety of the respondents' system must fail.

Jones v Dunkel - the respondents' "failure" to call the weighbridge operator

45 The appellant filed supplementary written submissions which raised a new but quite unintelligible complaint based on Jones v Dunkel (1959) 101 CLR 298. This complaint led to one of the two amendments to the Grounds of Appeal to which I have already referred.

46 These submissions complained that the respondents had not called two witnesses: the recyclable officer to explain the role he or she played in the respondents' safety system or the weighbridge operator who spoke to the appellant on 31 August 1999.

47 The supplementary written submissions also complained that the trial judge did not refer to the "issue of the failure of the respondents to call the weighbridge operator." They then conceded that this might have been because neither counsel addressed any Jones v Dunkel inference in submissions. Rather remarkably, in the light of that concession, it was submitted, "the absence in her Honour's judgment to Jones v Dunkel appears to be unexplained." [This is a literal transcription of the written submission]

48 In order to deal with this submission it is necessary to recount an exchange at the end of the evidence for the respondents. At that stage their counsel, Mr Charteris, informed the trial judge that while there was "a further witness who was the other operator ... she would not be able to provide any evidence about what was said between herself or anyone else in the operator's office and the plaintiff but would have given evidence which is not in issue as to the system for proceeding with any customers that came in." It must have been apparent at this stage that Mr Charteris was most probably referring to the weighbridge operator who spoke to the appellant because Ms Newham, another weighbridge operator who had come to the appellant's assistance when she heard his cries for help was called. She gave unchallenged evidence that she had not "served" the appellant.

49 As a result of Mr Charteris' statement, it appears to have been common ground between counsel who appeared at the hearing that an explanation had been given by the respondents for not calling this witness. This explained the absence of any Jones v Dunkel submission by the appellant's counsel - who was not the counsel who appeared in the Court of Appeal.

50 The futility of this ground of appeal is also underlined by the appellant's own evidence that the weighbridge operator directed him to take his load to the recycling area. In such circumstances there was no room for the drawing of any Jones v Dunkel inference favourable to the appellant due to the weighbridge operator who gave him that direction not being called.

51 The complaint about the absence of the recycling officer is nonsense. Mr Newcombe, who would have performed the duties of the recyclable officer had the appellant gone to the recycling area as directed, was called.

53 The appellant sought to adduce what his counsel submitted was "fresh evidence" on the hearing of the appeal. That application, in contrast to the Jones v Dunkel submission, was based on the proposition that the respondent had called the weighbridge operator who gave the appellant directions, but that the appellant had been unable to give his legal advisers instructions to that effect on the day and hence his counsel had not cross-examined that witness at all.

54 In support of the motion, counsel for the appellant sought to read two affidavits, sworn respectively by the appellant and his wife. Counsel for the respondent objected to all of Mrs Taouk's affidavit bar one paragraph in which she identified herself as Mr Taouk's wife and objected to substantial portions of the appellant's affidavit.

55 The Court heard the appeal on the basis that a ruling would be made at its conclusion on the admissibility of the evidence.

56 It might conveniently be noted, at this stage, that in the course of his oral submissions, counsel for the appellant did not deal with the significance of the so-called "fresh evidence" and, in particular, how if admitted it would alter the outcome of the appeal.

57 The gist of the appellant's affidavit was that Ms Newham, to whom I have already referred, was the weighbridge operator who had directed him where to go with his load on 31 August 1999. He said that when her evidence concluded he was "very surprised that she was not asked any questions by my barrister." He said that during a conference with his current solicitor and counsel (who were not those who had represented him at the trial) after the transcript of the hearing had been obtained he instructed them that it was Ms Newham to whom he had spoken at the weighbridge.

58 If that allegation was correct, it would be inconsistent with Ms Newham's evidence that she did not serve the appellant but, rather, had first encountered him on 31 August 1999 after hearing somebody calling for help. The allegation would also have been inconsistent with the statement by counsel for the respondents during the trial to which I have already referred in relation to the Jones v Dunkel submission, the clear purport of which was that it was the witness who was not called who was the weighbridge operator who gave the appellant directions on 31 August 1999.

59 The appellant's solicitor also swore an affidavit in support of the application to adduce fresh evidence in which he stated that the appellant had instructed counsel and he that he had tried to tell his legal representatives at the trial that it was Ms Newham to whom he had spoken on 31 August 1999 but that "neither his solicitor or counsel would listen to him and that he had not seen counsel in conference prior to commencement of the hearing."

60 In my opinion the application to adduce fresh evidence was entirely misconceived. What was said to be an application to admit fresh evidence was, in truth, an application of the nature of that described in R v Birks (1990) 19 NSWLR 677. In other words, the appellant's counsel sought to point to the evidence to which I have already referred to say that the hearing was fundamentally tainted by the manner in which his then legal representatives had conducted it.

61 There was no suggestion that the appellant's former legal advisers had notice of the allegations the appellant made against them. They have not had an opportunity to be heard and it would be inappropriate to reach any conclusion about the substance of the appellant's assertions.

62 In my opinion this issue can be resolved in another manner. Assuming, for present purposes in the appellant's favour, that his counsel had cross-examined Ms Newham on the basis she was the weighbridge operator who gave the appellant directions, it is highly improbable that the outcome of the trial would have been any different. This was because the appellant had already agreed the weighbridge operator had directed him to the recycling area.

63 I reject the appellant's evidence on this issue.

1 Hackshaw v Shaw (1984) 155 CLR 614 at 663; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Burns v Hoyts Pty Ltd [2002] NSWCA 5. Special leave to appeal to the High Court was granted in the latter case, the appeal has been heard and judgment has been reserved. It appears that the grounds of appeal do not involve the issue of duty of care or its breach: see University of Wollongong v Mitchell [2003] NSWCA 94 per Giles JA at [40].

2 See especially Brennan CJ at 447 [25], Toohey and Gummow JJ at 454 [50], 455 [53], 456 [56], Kirby J at 478 [123], 481 [132]; see also University of Wollongong v Mitchell [2003] NSWCA 94 per Meagher JA at [10] - [13], Giles JA at [33], [37].

3 The area appears to have been referred to interchangeably as the "recycling" and the "recyclable" area.

4 The asterisks indicate an answer was not given through an interpreter.

5 Special leave refused by the High Court on 20 June 2003.

6 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 per Mason J.

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