TOLL TRANSPORT PTY LIMITED v RAYMOND HASKINS

PARTIES: Toll Transport Pty Limited Raymond Haskins

COUNSEL: Appellant: R W Seton SC; S Glascott Respondent: A J Stone

SOLICITORS: Appellant: DLA Phillips Fox Respondent: Slater & Gordon

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40790/2007

ALLSOP P BELL JA YOUNG CJ in Eq

Monday 15 September 2008 TOLL TRANSPORT PTY LIMITED v Raymond HASKINS JUDGMENT

1 ALLSOP P: This is an appeal from orders made by the District Court (Phegan DCJ) that there be judgment for the respondent (the plaintiff) in the sum of $164,370 with costs, arising out of an injury suffered by him after falling from a loading dock at the appellant's place of business. 2 Only two issues are raised; first, whether the evidence permitted the finding of breach of duty and, secondly, whether the evidence required a deduction for contributory negligence. Those two issues were broken into sub-issues in a way that I will describe, nevertheless the appeal relates to interconnected findings of fact. 3 The facts and issues arise as follows, taken substantially from the appellant's submissions. The respondent was a self-employed courier working under contract to the appellant from 2002 to 2003 during which time the respondent was contracted personally to carry out the courier contract. In about 2003, the respondent formed a company which continued to perform the contract with the appellant. 4 The appellant was sued and found liable in negligence as an occupier of the depot in which the loading dock in question from which the respondent fell was situated. The respondent fell from a raised loading dock while looking for a package to be collected for delivery. The loading dock was 1.3 to 1.4 metres above the floor where the vehicles were parked. The purpose of the difference in height was to facilitate the loading of the courier vehicles from the loading dock. Contract couriers such as the respondent identified packages for delivery on the loading dock, the packages having been delivered onto the loading dock via a conveyer belt. The loading dock had two sides, being divided by the conveyer belt. The dock could be used by trucks coming from either side. 5 At the time of the accident, only the side where the couriers parked their vehicles was in use. This was called the "open side" of the dock as distinct from the "far side" where the accident in question occurred. As I said, the open side and the far side were partially separated by the conveyer belt. The far side, where the accident occurred, was 1.2 metres wide, that is from the conveyer to the edge of the dock. Packages were placed on the conveyer belt in a sorting room where employees of the appellant worked. 6 Sometimes, the packages fell off the conveyer belt onto the loading dock floor, including on to the far side of the dock before they reached the end of the conveyer belt. The far side could be accessed from the lower level by forklifts and larger trucks, but if one were to remove packages having fallen off the conveyer belt before reaching the end of the conveyer belt, one needed to walk around the conveyer belt to access and find such packages. On the day in question, the respondent went to the far side of the loading dock to collect a package and in the process slipped and fell over the edge of the loading dock onto the floor below. 7 This recitation of fact can be complemented by recognising a number of things. First, the dock was elevated 1.3 to 1.4 metres. The importance of this is that any slip or fall near the edge of the loading dock could in all likelihood cause a not insignificant injury to the person falling. Secondly, the narrowness of the far side of the dock being 1.2 metres wide, even if clear of parcels, meant that a person negotiating the far side of the dock would not be, at any time, far from the edge of the dock. Thirdly, and importantly in this case, the dock usually had a measure of clutter or congestion with parcels. The appellant's site manager, Mr McKinnon, said that it was congested every day. 8 The primary judge found that the far side was very often significantly obstructed by packages and other objects. The primary judge found, and I quote from p 4 of his Honour's reasons:

There was no real dispute that a person moving along the far side between the conveyer belt and the edge of the raised floor had to make his or her way around and/or over these obstructions. 9 The evidence and these findings are sufficient to conclude that the far side was elevated, narrow and often cluttered with boxes. The appellant was aware that drivers went behind the conveyer belt to pick up parcels from time to time. Though not required, it was known to be a not unusual aspect of the conduct of the business of the appellant and the largely contract labour such as the respondent here. 10 The primary judge dealt with various particulars of negligence. He first eliminated those that he thought had no bearing on the case. I will not deal with these matters exhaustively. I will indicate, however, that in the course of this reasoning, the primary judge rejected the proposition that a fence should have been erected as a precaution against falling from the edge of the far side of the dock because of the need for access to the dock from both sides. 11 The primary judge summarised the remainder of the case of the respondent as follows on p 10 of his reasons: Taking account of the relatively narrow width of the far side, that is 1.2 metres, and of the frequency with which the length of the far side was obstructed by the random presence of parcels of varying sizes and shapes and of other objects placed there by the defendant, there was a potential danger which the defendant failed to address by one of two measures. One was to have on hand in that area an employee with the specific task of keeping the far side of the floor as free as possible from obstructions. Alternatively, and perhaps to be fair to the plaintiff, they are not totally disconnected, but on the alternative allegation of negligence implicit in the remaining particulars, the floor should have been widened in order to provide a passageway which, even if objects had fallen onto the floor, there would have been more than adequate space for a person to negotiate the area with safety. Had one or other of those measures been in place, the injury would have been averted and there would of course had been no negligence. 12 Thus, the case was that in a space which was narrow and elevated containing a conveyer belt which from time to time lost boxes off the side, there should have been a system of clearing the boxes or alternatively a wider dock space. The two ways of putting the case were related as the primary judge understood. They essentially reduced to the proposition that a narrow, elevated and often cluttered space was prone to the kind of accident that occurred here: that is, someone falling off the dock. 13 It is important, before turning to the precise words of the primary judge, to understand with precision where the parties diverge, both on the appeal and at trial. Mr Seton, senior counsel who appeared with Mr Glascott for the appellant, clearly, if I may respectfully say, illuminated that the evidence did not support any finding that any clutter of boxes or any defect in the dock caused the actual slip itself. Mr Seton pointed to the frank and found to be honest evidence of the respondent to negative any suggestion that the slip was in fact a trip or stumble over the cluttered boxes. 14 The respondent accepts that that is not the basis of the claim against the appellant. Mr Stone, the respondent's counsel, necessarily accepted the evidence that was led below. The respondent himself could not explain the slip and when an opportunity "availed itself'', if I may use that expression, in evidence to state that he had in effect tripped over the cartons attempting to negotiate them, he rejected that possibility. I refer in particular to the evidence at p 32 of the transcript in which the following exchange took place: Q. When you went to the far side of the loading dock area, there were a number of cartons on the loading dock ground or level, weren't there? A. Yes. Q. You stepped through them, did you, to move towards a particular carton to pick it up and to put it somewhere? A. I couldn't say I was literally walking through, I was just going - walking into an area to pick up another carton and I slipped. 15 What the respondent says, however, is that in a narrow, raised and, to a degree, congested space, any slip that may occur was foreseeably likely to lead not merely to the falling to the ground, but to falling 1.3 to 1.4 metres to the ground, because of the proximity of the person at all times to the edge of the dock. 16 I will now turn to the findings of the primary judge. The primary judge found:

a) that the appellant was aware of the state of the dock; b) that the appellant from time to time had employed employees to clear the dock, although that did not occur on the morning in question; c) that the appellant was aware that people such as the plaintiff were from time to time negotiating the far side of the dock in a state of congestion; d) that the appellant was aware of the very narrow space revealed by the evidence. 17 In that context the primary judge said, quoting from p 12 of his Honour's reasons:

In those circumstances, it was foreseeable that a person using that side of the conveyer belt for the purpose for which it was being used by the plaintiff would have to negotiate their way around obstacles in their path and at certain points there would be very little room left for the person to pass, particularly on the outer edge. 18 His Honour continued: I am satisfied that while the plaintiff was unable to provide any details of precisely what caused him to slip, he did slip and when he slipped he was in an area close to the edge of the floor because of the need to negotiate the boxes which had already fallen from the conveyer belt or which had been put there for some other reason. A foreseeable consequence of his slipping in that area was that he would, as he did, end up on the concrete floor below. It is equally more likely than not that an extended floor area would have averted the worst consequences of his slipping. Even though he would still have fallen, he would not have fallen 1.3 to 1.4 metres onto the concrete below. In those circumstances, I find that his injury was a consequence of a breach of duty of care on the part of the defendant as the occupier of the premises and that the way in which the injury occurred was a foreseeable consequence on the part of the defendant, either to extend the floor or to provide staff to keep the passageway sufficiently clear to remove the danger which caused the plaintiff's injury. 19 The appellant identified four errors in his Honour's findings of breach:

1. The presence of the packages on the loading dock was the cause of slipping and falling.

2. The negligence found as to the number of packages when the number of packages was not proved.

3. That the appellant was negligent in not widening the dock.

4. That there were so many boxes that they should have been cleared. 20 Turning to the cause of the accident. There was evidence that the loading dock was uncongested at the time when the respondent first arrived at 5.30 in the morning. While it is not clear when the accident occurred, the evidence does reveal that the conveyer belt had been in operation for some time and boxes had fallen off the conveyer belt. The plaintiff could not recall the "exact number" of cartons on the dock when he fell. 21 Mr McKinnon, an officer of the appellant, conceded that the dock was generally congested. The plaintiff gave uncontested evidence that the photographs A to E to which we have been taken were typical of the clutter. Whilst those photographs are not precise, they do give an illustration of a number of boxes and other impediments in the far side of the dock. 22 The plaintiff was unable to explain how he fell. The primary judge found at p 5 of his Honour's reasons: I find that he simply slipped, for reasons he was unable to explain, on the raised loading dock floor and fell down onto the concrete floor below. 23 The appellant says that this being so, no causal effect of the cluttered cartons could be concluded. As I previously indicated, that proposition is legitimate if one were to seek to use cluttered cartons as the objects over which the plaintiff/respondent tripped. That is not, however, the gravamen of his Honour's findings or what the respondent submits on appeal. 24 I agree with the submissions of the respondent that even though the respondent could not precisely identify why he slipped or lost his balance, he did so in area where, because of its narrowness and the presence of some cartons, he was in all likelihood to be close to the edge of the dock. Because there was a narrow, and to a degree cluttered, area any casual slip had the likely or foreseeable consequence of falling off the edge of the dock. 25 The breach of duty found by his Honour, coupled with the accident of the very kind that might thereby be caused, assists in raising the factual inference that what happened was related to the breach of duty. That is not a legal proposition. Rather, it is to say that when someone slips in a narrow congested area close to a 1.3 to 1.4 metre drop, the responsibility of the party in control of the premises and who is able to either remove the clutter or widen the area can be seen. 26 In all the circumstances, in my view, it was open to the primary judge to conclude that the plaintiff slipped in an area close to the edge of the narrow space, in part because of the need to negotiate cartons and thereby placing himself necessarily at the edge or near enough to the edge of a 1.3 to 1.4 metre drop. I do not see any inconsistency in the findings of his Honour in that respect. 27 The probabilities are, on all the evidence, that the area had a degree of clutter and congestion and that this, together with the narrow space, contributed to the fall to the lower floor in the way identified by the primary judge. That is not a conclusion that the clutter contributed to the slip. It is a conclusion, as his Honour found, that the narrowness and the clutter contributed to the fall to the lower floor because of the narrow environment, the raised environment and the proximity to the edge. That was in essence what the primary judge found and in my view it displays no error. 28 The heads of negligence identified by his Honour were either failing to provide staff to clean or clear the area of clutter or, alternatively, widening the dock. As his Honour said, these were connected. There is some force, as the respondent recognised in his submissions, that the requiring of another to clear the dock may simply be transferring the risk. But I agree with the respondent's submissions that a properly organised system, together with properly organised training and a direction to staff, may well have enabled the appellant to deal with the clearing of any clutter in a way that minimised the risk to anyone attempting that task. Here, the respondent was not an employee of the appellant. He was an entrant into a workspace in relation to whom the appellant had responsibilities of the kind referred to in Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234. 29 The fact is, as I have said, that there was a narrow, cluttered elevated space upon which people had to work. A widening of the area would have reduced the risk of being near the edge. A clearing of the clutter would have reduced the risk of needing to, as the judge found, negotiate parcels and thereby come closer to the edge. In all likelihood and on the probabilities, taking either or both the steps identified by his Honour would have meant the injury, as it occurred, would not have occurred. It was open to the primary judge in my view to conclude that one or other of the methods identified would have averted the injury. It is my view as well, having been taken to the evidence by counsel. 30 The appellant also complains about the weight given by the primary judge to a report prepared by the appellant's employee three days after the event. The document was not a casual document, it was an incident report prepared about the events in question. It was prepared by someone who was not present at the time of the accident. The person was responsible, however, in the appellant's employment for, one would infer, creating the document. 31 The author of the document, Mr Smith, was still employed by the appellant, but was not called to give evidence. In that document, in a section entitled 'Information for Investigator' there was a question, "What do you think caused the incident?" adjacent to which Mr Smith wrote, "Rear of loading dock was congested". Adjacent to 'Your Improvement Suggestion' the following appeared, "Dock rear to be kept totally clear allowing walkway. Dock extension would improve area". 32 The primary judge is said to have given significant weight to this report. On reading the primary judge's reasons and the place in those reasons where the incident report appears, it seems to me clear that the primary judge's decision did not turn on the incident report. His Honour's conclusions of breach of duty had occurred by the time he dealt with the matter. He did place some weight on the report and that, in all the circumstances, was entirely legitimate. There was arguably a misconception as to how the accident occurred in the incident report, but the employee of the appellant who could have explained the report and any qualification of it was not called. In my view, the primary judge was entitled to pay some regard to the almost contemporaneous views of the deputed employee of the appellant in the incident report and there was no error to the extent that his Honour took into account. 33 Mr McKinnon, another employee of the appellant, as his Honour found, distanced himself from Mr Smith's assessment in the report, but his Honour was of the view that as a practical matter he was entitled to take the incident report into account. At pp16-17 of his reasons the primary judge said the following: Again those comments should not and will not be construed as some kind of admission of liability but they do indicate that the most immediate response on the part of a relatively senior employee of the defendant was that the measures which I have drawn from the particulars that are most relevant to the plaintiff's claim, namely some system to keep the dock area clear or alternatively an extension of the floor, were the two measures which occurred to Mr Smith as effective ways of averting a similar incident. That carries some weight even though it is not in any sense an admission of liability. Mr McKinnon distanced himself from Mr Smith's assessment. His view was that neither of those measures would necessarily have been effective. As a practical matter it was impossible to keep the dock area clear all the time and he did not agree with the proposition that extending the floor would necessarily have been effective. However that is a view expressed some years after the incident and does not have the spontaneity of Mr Smith's assessment even though Mr McKinnon was a more senior employee. The incident report does provide the plaintiff with some support for the conclusion which I have come to in any case. 34 In my view, the primary judge was entitled not only to give the report the weight that he did, but to conclude that the respondent's fall to the lower floor was in part at least caused by the narrow cluttered far-side of the dock and although slipping for reasons other than that can be attributed to the fault of the appellant, the appellant's failure to clear the far-side of the dock of parcels or to widen it placed a person in the position of the appellant in a position of risk such that should he trip or slip for any reason he was at risk of considerable injury by falling off the edge of the dock. That, in essence, was what the primary judge concluded. 35 Having looked at the evidence, in my view not only was there no error in his Honour so concluding, they would be my conclusions also. 36 It is necessary now therefore to deal with contributory negligence. The appellant said that if it was wrong as to the question of negligence, then there simply must have been contributory negligence because otherwise how could the event have occurred. If I may respectfully say, without the slightest disrespect to trial counsel, there was a cursory cross-examination as to contributory negligence. In all the circumstances, that course was probably understandable. It was put to the respondent that he was not looking where he was going. He said he was. Nevertheless he slipped. There is no evidence to conclude that the slip occurred because the respondent was failing to take into account any precaution which a sensible person would have taken. There was no basis to think that the slip was his own fault in that sense. 37 Once that is understood, it must be recognised that the respondent was in the elevated space in which he found himself not because of any lack of care, but because that was how the whole system worked at the appellant's premises. He was not required, as the primary judge found, to go behind the conveyer on to the far side of the dock but he did so in the ordinary conduct of his obligations and duties as a contract driver. There was no evidence of any warnings that he should not do so. To the contrary, it was known to the appellant that from time to time persons in his position would do so. 38 In those circumstances, an apt encapsulation of his position can be taken from the judgment of Justice Campbell in J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 when his Honour said: Any assessment of what reasonable care for a plaintiff's own safety requires that plaintiff to do must take into account the practical opportunities for choice that the plaintiff has concerning his or her own safety. 39 In the circumstances of the running of this dock and the appellant's business, there was nothing undertaken by the respondent which displayed a failure to take into account his own safety. 40 In my view, the appeal should be dismissed with costs. 41 BELL JA: I agree with the orders proposed by the President for the reasons that his Honour gives. 42 YOUNG CJ in Eq: I also agree.

(Discussion as to costs.) 43 ALLSOP P: The orders of the Court are: 1. Appeal dismissed. 2. The appellant pay the respondent's costs on the usual basis up to and including 22 May 2008 and thereafter on an indemnity basis. **********

22/10/2008 - Correction of Solicitors names on coversheet - Paragraph(s) NA

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