Key Takeaways

The judge deduced that the risk of injury was foreseeable because the defendant asserted that it had taken steps, some years earlier, to remedy the risk. That remedy had ceased to exist by the time of the plaintiff’s injury, as was demonstrated by the very occurrence of the injury.

A Civil Liability Act defendant’s liability will not be reduced by operation of s151Z (2)(c) of the Workers Compensation Act 1987 (the Act) unless it can be shown that the risk giving rise to the injury would have been apparent at a time when the employer may have reasonably inspected the worksite, usually before the commencement of the job. Unless the risk would have been apparent then, there is no breach of the employer’s duty of care, high as that duty may be.

Brief Facts

The plaintiff was injured in 2011 at premises occupied by the defendant CPB while carrying out his duties as a security guard. At the time, he was employed by Sydney Night Patrol (SNP) and was performing his duties as required by his employer and the defendant.

In the early hours of the morning, he fell in a ditch at the site and sustained an injury to his right knee. He subsequently developed back problems. At the time of trial, he had not worked for nine years and presented as a person with a severe disability. Damages were assessed at more than $1million.

The defendant said that the scene of the accident was not as the plaintiff asserted and that he could not have fallen in the ditch, as it was protected by star pickets and a mesh barrier.

CPB had been engaged to undertake the Pacific Highway upgrade works between Sapphire and Woolgoolga. Prior to the accident, the plaintiff had worked for SNP for a period of five years. At the time of the accident, his role was to patrol the compounds along the Pacific Highway between Coffs Harbour and Woolgoolga which had been installed as part of the works. The plaintiff visited each of the compounds four times during his twelve-hour shift and checked that the buildings in each compound were secure.

One of the compounds was known as Gate 6. The plaintiff had been to Gate 6 on two or three occasions on the night of the injury, prior to his accident. Access to Gate 6 was gained through an unsealed road off the Pacific Highway. The entrance of Gate 6 was secured by a large security gate which was chained and padlocked. The gate consisted of two arms that swung out away from the centre. It was his practice to open the southern arm of the gate so that he could drive through. There was no pin or bolts securing the northern arm. As he drove through the entrance, the northern arm remained in position, although it was not secured by anything. When he drove back out through the gate, he noticed that the northern arm had swung so that it was completely open and resting against the fence.

After he had closed the southern arm, he walked towards the northern arm which was up against the fence. He was required to leave the road and walk across an area of vegetation and some long grass. He was using his torch for illumination, although he was not shining it directly on the ground. There was no other source of light. As he was doing so, he fell in a ditch. The ditch was obscured by grass or vegetation. It was in the area where he was required to walk to close to gate. He had not walked in that area previously because the gate had not swung open to its full extent on any earlier occasion.

Judgment

The trial judge found that:

• The risk of harm was both reasonably foreseeable and not insignificant.
• The defendant must have been aware that security personnel would be attending the compound at night.
• There was no illumination in the area of the gate.
• The defendant plainly foresaw that persons might walk in the area of the ditch because it says that it secured the area through webbing and star pickets to prevent workers from walking in the area. Those safety measures had plainly ceased to exist by the time of the injury.
• For these reasons the defendant was in breach of its duty in failing to ensure that the area around the ditch was cordoned off or barricaded so as to prevent persons such as the plaintiff from walking into it. Alternatively, the defendant should have taken steps to prevent the gate swinging open and exposing the plaintiff to the risk associated with the obscured ditch.

The defendant alleged contributory negligence because the plaintiff did not use his torch correctly so as to identify the ditch. There was no other illumination. The defendant said that the plaintiff was shining his torch upwards rather than along the ground. It could not be said that he failed to take care for his own safety simply because he walked across the area, as the duties of his employment required him to close the gate. However, the defendant said that the plaintiff was not paying proper attention to where he was walking and was thus guilty of contributory negligence.

The judge rejected this argument because the plaintiff was using his torch for things that he needed to look for. He was shining his torch on the gate. It is not as if he had made a decision not to use his torch at all. Further, the defendant bears the onus of establishing the causal connection between any failure to take care on the part of the plaintiff and his injuries. Even if he was failing to take care by not shining his torch on the ground, the ditch was obscured by vegetation and grass.

The Judge went on to consider the appropriate reduction of CPB’s liability by operation of s151Z (2)(c) of the Act. That section provides that the liability of a non-employer tortfeasor is to be reduced by the proportion of the liability which can be attributed to the employer. The Judge found that the plaintiff would not have succeeded against SNP and thus the section has no application and the plaintiff’s damages should not be reduced because of the notional contribution of SNP. There were two grounds for this finding:

1. SNP’s duty, whilst onerous, was only to exercise reasonable care. No evidence was adduced as to what SNP may have done or not done. It would be imposing an overly onerous obligation on SNP to require it to have regularly inspected the area where the plaintiff fell at some unspecified earlier times. After all, the plaintiff’s role was to inspect the premises.
2. He could not define what SNP might have found if it had inspected the site. It was CPB’s case that in 2010 the gate could not swing that far open and there was webbing in place. That was not the situation at the time of the plaintiff’s accident. The Judge was unable to make any finding as to the state of the area at any time other than when the accident happened, as described by the plaintiff. The onus was on the defendant to establish what SNP would have seen if it had inspected the area at some time prior to the accident.

Implications

Because CPB could not show that the barricading and other protective measures were in place more recently than 2010, when they were allegedly installed, the very fact of the plaintiff’s injury was evidence that they had ceased to be there, or had become ineffective, by the time of the injury.

To establish contributory negligence one must apply the same principles as when assessing primary negligence. One must be satisfied that any failure to take care by the plaintiff caused his loss.

Although the employer owes a non-delegable duty of care even where its employee is on the premises of another party and working under its direction, there will be no notional negligence on the part of the employer unless it can be established that there was a breach of that duty of care by the employer.