The accident
39 On 27 October 1996 the plaintiff and his team carried out the installation work at the Imperial Arcade. The job was due to be completed on that day. Tim Clarkson told the police that it had been raining. He gave evidence that he reached this conclusion because there was a pool of water where the accident occurred. He later found out that the pool of water was created by a cleaner trying to clean the blood away. No other witness gave evidence that it had been raining. I find that it had not been raining at the time of the accident. The ground where the plaintiff was working was not wet due to rain water.
40 The previous day, namely on 26 October 1996, the ceiling hooks, balls and decorations were delivered by Tim Clarkson's offsider Mathew Shaw. After Mr Shaw had opened the storeroom on the Pitt Street level of the Imperial Arcade, the plaintiff took out a ladder that he had used in previous years. It was a 12' aluminium ladder with steps on one side and two stiles holding it together on the other side. There were cross beams holding the stiles together. Tim Clarkson gave evidence that the ladder belonged to the defendant.
41 An employee Joris Smink who was part of the plaintiff's team, was placing Christmas garlands flush against the awning under the barge board on the Pitt Street entrance to the arcade. (see Ex D). In previous years the garland was looped onto the awning. In the 1996 year the garland was placed flush against the awning. To perform this task more hooks were required to be inserted than had been required in previous years. The ladder had to be moved constantly. The ceiling hooks had to be placed on the stepped part of the roof so that the garland could be hung. Mr Smink had carried out this procedure on the lower part of the awning and on the stepped part of the awning. He felt uncomfortable carrying out this task at a higher level and chose not to continue as he thought it was dangerous.
42 The plaintiff decided to personally undertake the work that Mr Smink thought was dangerous. The plaintiff was obliged to carry out the work at height and place the hooks in the higher part of the awning. To carry out this task he climbed the ladder. He placed his feet on the next rung down from the top of the ladder to affix the hooks into the stepped part of the roof overhead. The plaintiff reached up full stretch with one arm and leant forward to clip the hook in. He does not remember whether it was his left or right arm. (t 29.35). He then had to affix the garland. After inserting a number of hooks the plaintiff would descend the ladder and move it along the ground in the direction in which he was working. He would then ascend the ladder in order to place the hooks into the awning. To reach full stretch he could use only one side of his body. He was using one hand to clip the hook in. He would use either his right or left hand to position the hooks depending how far along the stepped awning he could reach.
43 The plaintiff was facing the Imperial Arcade from the Pitt Street Mall entrance on the left hand side. Just prior to falling the plaintiff was standing on the second top step of the ladder. The top of the ladder connected with the bottom of his shin. He can remember reaching out but cannot recall whether or not he put the hook in the slotted part. (t 31). The plaintiff has no recollection of his fall or lying on the ground. His next recollection is being in hospital.
44 Ms Kate Hancock gave evidence. She was a very impressive witness. On the day of the accident she was a Year 11 school student who was shopping in the Pitt Street Mall. She was walking to Town Hall station and remembered walking past a man on a ladder. She says that she was about 20 metres away and for some inexplicable reason turned around. From the corner of her eye she saw the man fall from the ladder. At the time of the accident Ms Hancock did not see anyone standing at the base of the ladder. She observed that the ladder was a normal sized ladder with steps on one side.
45 She immediately ran over to plaintiff who was lying on the ground in a semi-conscious state. When she came up close to him he was awake but was groggy. He was moving as though he had bumped his head. She spoke to him but he did not reply. When about 30 seconds had passed he lapsed into unconsciousness. Ms Hancock screamed to a security officer to call for an ambulance. She inspected the plaintiff to see if he was dead, alive or unconscious. This time the plaintiff was absolutely still and there was no jerking or movement in his body whatsoever.
46 Ms Hancock started screaming for help. There was blood everywhere. It seemed that for a long time although there were people around no one came forward to assist. She was holding the plaintiff's hand and finally two people came forward and told her that the plaintiff was dead. She said that they should try to resuscitate him. They replied that he was dead. She said that it was not good enough and they should at least try. She commenced doing CPR by pressing down on the plaintiff's chest while the man commenced doing mouth to mouth resuscitation. After about a minute the plaintiff regained consciousness.
47 Ms Hancock said to him "What is your name?". He replied "My name is Ben". He responded in a coherent manner and then tried to get up. Ms Hancock successfully talked to him and persuaded him not to get up. She remained with the plaintiff for about 10 minutes until the ambulance arrived. The plaintiff was groggy during this 10 minutes and he was not making much sense but he could still speak and move. She did not observe any spastic movement or seizures. She had witnessed three different people having seizures on three different occasions and would have been able to recognise if he had had one. Ms Hancock sat on the ground cradling the plaintiff's head until the ambulance personnel arrived. Ms Hancock should be publicly acknowledged for saving the plaintiff's life.
48 The ambulance report stated that the plaintiff had a closed head injury post fall. The report noted that on arrival at shopping mall male patient agitated on ground with gross blood loss from head injury and that the patient fell from step ladder approximately 4-5 metres and hit head on ground and was seen to fit leading to an episode of respiratory arrest as per a doctor on scene. On arrival patient thrashing about scene, blood loss from open wound on forehead, nil from ears. Swelling and bruising to both eyes. Patient complained of pain to left wrist. GCS 10/15 Patient verbalising, confused, but observations meant the plaintiff was stable. On route patient settled but very agitated. The doctor who apparently was on the scene did not give evidence. On 7 November 1996 Dr Abeysekera of St Vincents hospital (Ex 3) wrote a referral for the plaintiff stating that in relation to the work accident he had the initial presentation of an epileptic seizure while working and fell 4 to 5 metres. It is not known from whom this history was obtained so little weight should be ascribed to it.
49 There is divided medical opinion as to whether or not an epileptic seizure precipitated the fall from the ladder. All of these medical opinions were expressed without the benefit of Ms Hancock's evidence. Ms Hancock's evidence is taken into account with that of Dr Darveniza it is more likely than not that the plaintiff did not suffer an epileptic fit before he fell. Dr Darveniza stated at (t 153.10) that if the plaintiff had suffered a generalised seizure which caused him to fall from the ladder, someone might have seen a seizure on the ladder or seen him black-out at least and as it continued with the fall immediately after unconsciousness, one would expect to find a tonic-clonic conversion on the ground, a generalised seizure on the ground. Dr Darveniza said that if the plaintiff suffered an epileptic fit while standing on the ladder it was more likely that the plaintiff would have suffered the same type of seizure that he suffered in the past, namely grand mal seizures. As previously stated, Ms Hancock did not observe anything that would lead her to believe that the plaintiff suffered an epileptic fit.
50 There is no evidence to suggest that the plaintiff was suffering an grand mal fit. Mr Smink was not called to give evidence although he most likely would have witnessed the accident. He could have been expected to give the true complexion of whether he observed the plaintiff suffering an epileptic fit. There was not a sufficient explanation given to the court for his absence. Hence an inference is drawn that his evidence would not have assisted the defendant. For these reasons, it is my view, that on the balance of probabilities, the plaintiff did not suffer an epileptic fit which caused him to fall. The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in the slotted part of the awning. He overbalanced and fell from the ladder to the ground suffering serious injuries.
51 So far as these particulars relate to fault directly attributable to the defendant they depend upon there having been a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff's safety while he carried out his visual display work. It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height as he had to use a ladder. For the security and soundness of the ladder he had to rely upon the defendant.
52 The scope of that duty of care is determined by reference to the circumstances, the foreseeability of the risk and the reasonableness to such a foreseeable risk. What is reasonable will vary with the plaintiff's entry upon the premises. The defendants are entitled to take into account that a person such as the plaintiff who comes onto the premises will take reasonable care for his own safety. In the case of skilled independent contractors who encounter risks ordinarily incident to the work they are invited onto the premises to perform, reasonable men and women in the position of the defendant would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries which are ordinary incidents of the work - see Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at pp 20-21; Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, 148; Bates v Parker [1953] 2 QB 231; Pinborough v Minister for Agriculture (1974) 7 SASR 493. Such contractors must provide their own safeguards against the normal incidental risks of their trade (Christmas at 148).
53 Two engineering experts namely Dr Adams and Mr Olsen, provided divergent opinions. Dr Adams wrote reports dated 1 September 1998 and 6 August 1999 (Ex A). He gave evidence and was cross examined. Although Dr Adams in his report thought that the ladder would have been no more than 10' in height the fact that it was 12' made no difference to his opinion. Dr Adams said that the plaintiff's feet would have been approximately 2.7 metres above the pavement. He also remeasured the heights before coming to court and acknowledged that the measurement of 4 metres in his report was incorrect. He measured the distance by using a pillar. Even though there has been some work done on the entrance to the mall, the pillar shown in the photographs is still unaltered. He observed the pavement by placing tape over it. The brackets to which the plaintiff was attaching hooks for Christmas decorations were at varying heights up to 4.8 metres and the distance to the stepped top of the awning where the decorations were to be placed was a further metre. I make a finding that the plaintiff had been working to a height of 4.8 metres from the ground.
54 As previously stated, Tim Clarkson and the plaintiff are about the same height and same build. Later on that day after the accident occurred, Tim Clarkson took over the plaintiff's position. Tim Clarkson used the same ladder to complete affixing the garland. He described the ladder as a solid and very stable ladder. He said that although he cannot recollect which rung his feet were on, he was at a safe level. He raised his hands above his head. His arms were extended, his elbows were bent and his hands were about one foot above the top of his head (t 344). Tim got down and moved the ladder and went up again until the hanging garland on the awning had been completed. He did not experience any sensation of the ladder being unstable. Nor did he find it necessary to request an employee hold the ladder to ensure his safety.
55 In his report dated 1 September 1998 Dr Adams inferred if the plaintiff was attempting to attach as many as three hooks in a row from the one ladder location, he would have been reaching to the side from the ladder on which he was standing and may inadvertently have moved so far as to take his centre of mass beyond the base of support of the ladder. If there was any movement whatsoever in the ladder which was not being held by his fellow worker, then the plaintiff could have been thrown off balance and would have been unable to arrest the fall since there was nothing above or beside him which he could grab. Dr Adams conceded that even if the plaintiff had been standing at the fourth rung from the top, this would have made very little difference to his opinion.
56 Dr Adams gave evidence that a stepladder is not designed to be used as and should not be used as a work platform. It should only be used for the simplest and most physically undemanding of tasks, such as, for example, changing a light bulb. He gave evidence that had the plaintiff been able to reach above or in front of himself, directly within the envelope encompassed by the two styles and without any significant force being required, the ladder could be used. This is on the proviso that the ladder would be standing on a stable surface and was firmly footed or held. (t 267.55). While Dr Adams observed that the floor surface of the accident site was not perfectly level (t 274.45) he did not measure it.
57 Dr Adams referred to a notice that appears on most ladders to the effect that a person using a stepladder should not ascend above the second step from the top. It is not known when this ladder was purchased or whether it actually had a warning sign such as "Do not ascent above this level" on the second step from the top of the ladder. This warning is not of assistance to the plaintiff's case. It is not disputed that the higher a person goes on a ladder and/or the further they lean to the side while standing on a ladder the less stable the system becomes. Dr Adams said that falling from a height at which the plaintiff's centre of mass would have been over 3.6 metres above the ground the plaintiff would have acquired a vertically downward velocity of approximately 8.4 metres per second or about 30 kilometres per hour. Undoubtedly, an impact against an unyielding pavement by a person falling at such a velocity could cause significant injury.
58 Finally, Dr Adams also expressed the view that as the plaintiff was working under some considerable time pressure, attempting to get all of the garlands and decorations hung before Christmas and that the plaintiff had been provided with an unskilled, inexperienced work team the plaintiff should have had available to him at least two other experienced workers who were capable of assisting in making judgments about the safety of the work as well as about the speed and efficiency of the work. It should be noted that the plaintiff attended a training session with his team.
59 The defendant tendered two reports of Dr Johnn Olsen dated 14 May 1999 and 22 December 1999. (Ex 14). In his first report Dr Olsen assumed that the height of the ladder was 3.34 metres, the ladder width .56 metres, there were 11 steps (excluding the board at the top) and the spacing between each step was 300 millimetres. The plaintiff was 6' tall, (the same height as Tim Clarkson).
60 Dr Olsen's referred to CIS information sheet which stated that stepladders can be used during painting, decorating or installation work and that stepladders are particularly recommended where workers are required to remain on a ladder for longer periods of times such as in storerooms, libraries and archives. It was Dr Olsen's view that stepladders remain the most useful access to elevated places including an awning where the time required for access is relatively small and where it is necessary to move from place to place frequently. Consequently, a stepladder was the correct equipment and was suitable for the job in the Imperial Arcade. It was his view that the stepladder would not place the plaintiff at any significant risk of injury.
61 Dr Olsen stated that it could not be expected of an employer of a contractor to check on how the contractor was standing on the ladder, particularly in light of the plaintiff being in charge of the job and being responsible for the work performed by others. It would be reasonable to assume that he would have taken at least rudimentary safety precautions which of course would not include leaning sideways from a ladder or performing vigorous movements whilst standing near the top of a ladder.
62 I accept that the plaintiff was under time constraints and he was the one with the responsibly to ensure that the job was completed by the end of the day. However, the plaintiff had been told by Mr Smink that he (Smink) refused to go any higher on the ladder to carry out the work because it was too risky. The plaintiff nevertheless chose to ascend the ladder to the step nearest the top of the ladder and reach overhead to a full stretch outside the style area of the ladder. The plaintiff was experienced as he had been doing this type of work for a number of years. I infer that the plaintiff knew that this was dangerous and that he was taking a risk, but nevertheless elected to carry on with the job. As the plaintiff was the supervisor in charge of the job, he could have easily requested an employee to hold the ladder for him so that it was more stable. He chose not to give that direction.
63 Alternatively the plaintiff could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time he would not be called upon to reach outside the centre of his mass and he would have been securely balanced. This is exactly the mode which Tim Clarkson adopted when he completed the job later that day.
64 It is my view that the accident was caused when the plaintiff elected to place himself in a precarious position at the top of the ladder and over reached. The plaintiff lost his balance and fell with very serious consequences. The plaintiff did not take care of his own safety, and was the author of his own misfortune.
65 It is my view that a reasonable person in the defendant's position would not have foreseen that there was a risk of injury to the plaintiff when he was installing the Christmas decorations on the awning by means of a ladder. The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly, as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff's claim in negligence fails.
66 In relation to breach of contract, it is my view, for essentially the same reasons as above, that the defendant did not breach its contract with the plaintiff. The defendant took reasonable care not to injure the plaintiff. The plaintiff's claim in contract also fails. There will be a verdict and judgment for the defendant. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant's costs.
67 In case I am found to be in error, I will record my findings on the defendant's reasonable response to the risk, contributory negligence and damages. Five cheap and practical responses to the foreseeable risk have been suggested by Dr Adams. They are firstly, the plaintiff's employer could have provided a small, mobile man-lift platform of the scissors lift or "cherry-picker" type. Such machine can be hired for a couple of hundred dollars a day and would have enabled the work to be performed very much more expeditiously and safely. Secondly, at a simpler level there are available for hire mobile scaffolding units which have a work platform generally of the dimensions approximately 1.2 metres by 2.4 metres and capable of providing a work platform at adjustable heights up to about 4 metres. Such mobile scaffolding platforms are mounted on wheels and castors and can be pushed manually and quite quickly to any desired location. This costs about $70 per day.
68 Thirdly, another simple provision would have been to supply a pair of trestles and a couple of planks and lengths of steel railing. Although, technically, it should be the task of a rigger to set up scaffolding using trestles, planks and steel rails or handrails, the very simple work platform required for the work being performed by the plaintiff could have been assembled and disassembled for movement quite quickly and would have provided for much safer access than is possible from a ladder. Fourthly, at the very least the employer could (should) have ensured that the plaintiff was given thorough training in the safe use of stepladders including the importance of having the stepladder firmly held or secured in place as a person was using it for access; and should have provided him with a ladder long enough to enable the plaintiff to reach any of the points at which he was inserting hooks without having to climb to an unsafe height (i.e., above the second step from the top) on the ladder. Dr Olsen's view was that there was no necessity for the defendant to provide the alternatives suggested by Dr Adams.
69 It is my view that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk. The trestle and planks could be destabilised by unwary shoppers. The cheery picker alternative is not the best alternative as it is more expensive. It could have been expected that the plaintiff would have been aware of the safe use of stepladders.