Did the first plaintiff suffer damage as a result of the defendant's breach of duty?
- The plaintiff bears the onus of proving, on the balance of probabilities, that the defendant's failure to take reasonable care in respect of the tree-felling operations was a necessary condition of the occurrence of the harm suffered by him when he was hit by a tree: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [20]. The question here is whether the plaintiff has established, to the requisite standard, that he would not have entered the area in which he was injured if the defendant had erected barriers around that area or had erected a warning sign.
- Although that question is a subjective one, the plaintiff could not have given evidence about what he would have done, or not done, except to the extent that what he said went against his interest: sub-s 5D(3)(b) CLA. The question of proof of this issue in light of sub-s 5D(3)(b) is explained in the following authorities.
- In Neal v Ambulance Service of New South Wales [2008] NSWCA 346 Basten JA said:
"[40] Whatever the real purpose of the provision, the issue for determination is how a court is now to identify what course the plaintiff would have taken, absent negligence. That assessment might include evidence of the following:
(a) conduct of the plaintiff at or about the relevant time;
(b) evidence of the plaintiff as to how he or she might have felt about particular matters;
(c) evidence of others in a position to assess the conduct of the plaintiff and his or her apparent feelings or motivations, and
(d) other matters which might have influenced the plaintiff.
[41] Properly understood, the prohibition on evidence from the plaintiff about what he or she would have done is of quite limited scope. Thus, the plaintiff cannot say, "If I had been taken to hospital I would have agreed to medical assessment and treatment". Indeed, as the Negligence Review recognised, such evidence would be largely worthless. However, the plaintiff might have explained such evidence along the following lines:
"I recall on the trip to the police station that I began to fell less well; my state of inebriation was also diminishing; I began to worry about the pain in my head …."
[42] That evidence (entirely hypothetical in the present case) would not be inadmissible. If accepted, it might provide a powerful reason for discounting any inference as to future conduct drawn from the past refusal of treatment. It would constitute evidence as to the plaintiff's position, beliefs and fears. Because an inference would need to be drawn from that evidence, no doubt the court would take into account the likely response of a reasonable person in such circumstances. That is consistent with the Act requiring that the matter be determined "subjectively in the light of all relevant circumstances". …"
- In Roads & Maritime Services v Grant [2015] NSWCA 138 Emmett JA said:
"[179] The primary judge found that, with sufficient notice of the location of the nose of the median strip, Mr Grant would not have clipped it. That is a finding that, but for the absence of a "Keep Left" sign, Mr Grant's motorcycle would not have come into contact with the nose, thereby causing him to lose control of the motorcycle. While his Honour found that Mr Grant was negligent (by his exceeding the speed limit by some 20 km/hr), his Honour also found that, were it not for the negligence of the Authority, the accident would not have occurred. However, his Honour gave no reasons and referred to no facts for that ultimate conclusion.
[180] In order that a fact may be regarded as established, the evidence should be such that it is more probable that it exists than it does not. A fact cannot be regarded as established unless its existence is at least a reasonable inference from some matter provided in evidence. It is not sufficient that there be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference, and not of conjecture. The existence of a fact may be inferred from other facts, when those facts make it reasonably probable that it exists. However, if they go no further than to show that it is possible that the fact may exist, the existence of the fact does not go beyond mere conjecture. If there is no piece of evidence that, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, then it cannot be treated as established."
(Citation omitted)
- The Court must be affirmatively satisfied of what would have happened based on inferences drawn from the established facts and not simply rely on conjecture or a choice between available possibilities: Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305; Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [47].
- There was no evidence here similar to the type of evidence referred to by Basten JA in Neal. However, there was other evidence from which inferences may be drawn as to what the plaintiff would have done had there been safety cones in place at the time of the incident.
- First, as submitted by him, the plaintiff's history supports the view that he is driven, a high achiever and very hard worker. He takes great pride in his business, enjoys it and the success it has brought him and does not plan to stop working. The plaintiff takes great care of his business and exercises close control over it.
- Secondly, there is evidence of the plaintiff's own conduct during the days preceding the incident. He was aware during the course of the week leading up to the incident that there was tree-felling going on. That much was not in dispute and, if it had been in issue, would have been resolved against the plaintiff as it was obvious. The footage of the incident reveals that there were fallen trees lying around the common area, an excavator had been used, a chain saw was used to cut up the trunks and branches and a forklift and truck had been used to move the cut up wood.
- The plaintiff himself acknowledged that he knew his brother had used the plaintiff's forklift for the purposes of the tree removal. Knowing this, and knowing that there was tree-felling occurring, the plaintiff had, prior to the day of the incident, gone out to the yard to retrieve the forklift.
- Thirdly, the footage of the incident is telling and deserves a detailed description.
- The footage is taken from some height looking out from what I infer is the roof of one of the units towards the boundary of the property on the Hume Highway. In the foreground there is a bare, dirt yard in which there is a type of large bin. In the mid-foreground there is what appears to be a forklift, vegetation including a number of standing trees and a number of large logs or tree trunks lying on the ground. At the far part of the property there is an excavator situated right behind a tree and just on the inside of the boundary fence. The excavator has a large light on at the front of it shining in the direction of the camera by which the images were captured.
- The time stamp shows 5:20 pm. It is getting dark but not yet dark. The sky in the background is clear and has some colour suggesting that it is around sunset. Given the date, I find that sunset had occurred or was about to occur.
- The plaintiff is shown in the foreground walking across the yard in the direction of the excavator. The light on the excavator is shining directly towards him. The plaintiff then changes direction slightly and walks around what appears to be a large part of a tree lying on the ground. He then turns to his left towards the forklift.
- The plaintiff's brother can be seen towards the boundary fence, about five metres to the left of the excavator. He then walks towards the forklift carrying what appears to be a heavy object. The shape of the object suggests that it is a chainsaw but it is unnecessary to reach any conclusion about that.
- The two brothers then stand near each other next to the forklift for about 45 seconds. During this time, the tree immediately in front of the excavator starts to rock back and forth quite violently. Other trees are swaying as though blown by a fairly strong wind, but not to the extent of the tree in question. It is likely that, at this point, the tree is in contact with the excavator which is in the process of pushing it over. Given the position of the excavator, there was a high likelihood that, when the tree was pushed over, it would fall in the vicinity of the place where the plaintiff had just walked in order to reach the forklift.
- The plaintiff's evidence was that he did not see the excavator. I do not accept that. He walked directly towards it; it had a large, bright light on facing towards him and it was in action. It is common experience that large earth-moving machinery such as that shown in the footage are noisy when in operation. Even allowing for the noise of the peak-hour traffic on the Hume Highway, in circumstances where there had been tree-felling on the property for a number of days, it is highly unlikely that the plaintiff did not hear the excavator and that he did not see it.
- In spite of that, the plaintiff walked directly into an area in which there was clearly tree-felling activity. There were cut up tree trunks on the ground, he walked around one of them. The plaintiff did so to retrieve his forklift so that he could close up his business and go home.
- Indeed, after talking to his brother for about 45 seconds, the plaintiff turns around and walks over the same area to return to his unit. When the tree that is being pushed by the excavator starts to fall, the plaintiff looks around and moves quickly to his right (towards the left of the image). He then dives over the log that is lying on the ground and appears to avoid being hit by the falling tree. On a close review of the footage it appears that he hits his leg on the tree that was lying on the ground. He then rolls on the ground and comes to a stop and remains still for some time.
- In my view, this evidence suggests that the plaintiff was more likely to have ignored any warning device or barrier placed in the vicinity of the tree-felling operation and that he would have gone to get his forklift. Whatever be the case, it undermines the plaintiff's case that the defendant's negligence caused his injury and I find that he has not discharged his onus to prove causation. For that reason the plaintiff's case must be dismissed. As Super Start's case was reliant on the success of the plaintiff's case, its case too, must be dismissed.
- Although this conclusion disposes of the proceedings, I will follow the usual course and go on to consider briefly the remaining issues including the question of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]; Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53].