Background

The plaintiff was employed as a delivery driver by Toll. His work was, with an offsider, Mr Luyt, deliver soft drinks to a café at the entrance to the premises.

The loading dock at the premises was surfaced with concrete, industrial garbage bins were located on one side of the dock, and a manhole was located within the concrete surface of the dock in proximity to the bins. The concrete surrounding the manhole was cracked and the plaintiff alleged that there was a height differential between the concrete and the manhole which presented a tripping hazard which was known or ought to have been known to the defendants. Yellow markings and a warning were painted on the concrete/manhole and the dock was inspected as part of the maintenance system both by the defendants and periodically by an independent auditor.

It was uncontroversial that the plaintiff had a fall, but significant controversy arose as to the mechanism of the fall and whether the extent to which the plaintiff was injured as a result.

The plaintiff testified that following delivering the drinks to a café at the entrance to the building, he drove to the back of the building where the loading dock was located to dispose of shrink wrap which had been partially removed from the drink pallets on the truck when assembling the delivery. He alighted his truck, collected the shrink wrap and walked toward the garbage bin to dispose of it when he tripped on the height differential between the concrete surface and the manhole and fell heavily striking his arm and head and sustaining injury particularly to his shoulders. He said that at the time of the fall Mr Luyt was inside the truck ‘resting his eyes’ and did not see the fall. Further, the plaintiff claimed that he did not see the yellow markings and warnings because the sunlight was very bright and operated to obscure them.

Her Honour found the plaintiff to be an unreliable witness accepting the submissions by Colliers and Honeywell that the numerous inconsistencies in his various histories of the mechanism of the accident, the refusal to accept the existence of pre-existing impairments arising from earlier injuries plainly evident in the medical notes, his obviously false assertions as to the state of the premises on the day of the fall, and his inappropriate demeanour when giving evidence were such as to preclude accepting the plaintiff’s testimony unless corroborated by other evidence.

Mr Luyt testified to an entirely different mechanism of the fall. His evidence was that the plaintiff did not drive to the loading dock and was not walking to the garbage bin to dispose of the shrink wrap (Mr Luyt said that was not fully removed from the pallets and thus not ready to be disposed of) but rather the purpose of the plaintiff driving to the loading dock and walking to the side of the loading dock beside the bins was to relieve himself. Mr Luyt’s evidence was that when, moving at a light jog and remote from the manhole cover, the plaintiff tripped over his own feet and fell. Also, Mr Luyt said that the sunlight did not obscure the yellow markings. This version was consistent with a reasonably contemporaneous statement made to the workers’ compensation insurer.

A further issue arose as to the admissibility and weight to be given to the plaintiff’s expert evidence. The plaintiff tendered an expert’s reports based on photographs of the manhole cover taken by the plaintiff shortly after the fall. The expert opined that the height difference was 25mm (and probably more) without providing any explanation as to the foundation for that opinion. Similarly, the opinion of the expert as to whether that difference in height is in breach of standards and as to the cause of the defect were unsupported by foundation and not clearly within the witnesses’ expertise. Indeed, the ultimate finding was that the standards referred to by the expert were not applicable to the premises.

Judgement

Her Honour Ainsley-Wallace AJ entered judgements for the defendants.

Her Honour found that although the plaintiff fell when at the premises the cause of the fall was unrelated to the state of the premises but rather caused by the plaintiff tripping over his own feet.

Her Honour then proceeded to consider how she would have decided the case if the plaintiff had been found to have tripped on the height difference between the manhole and the concrete.

Despite accepting an evidentiary void as to the extent, depth, and age of the height difference at the manhole, her Honour found that a height difference between two surfaces would pose a foreseeable risk of harm to someone who had not noticed that difference. That risk was not insignificant and could have resulted in serious harm.

However, the defendants successfully submitted that a reasonable response to the risk of harm was to do nothing more as the risk of harm was extremely low in circumstances where the premises was painted with yellow warning markings at the manhole, as well as marked with designated safe pedestrian walkways around the loading dock. The defendants also had a system of regular minuted inspections and meetings to identify issues for rectification and arranged independent audits of the premises. No evidence was presented by the plaintiff of the inadequacy of the existing system and as to an alternative and preferrable system of inspection.

In short, the finding was that the plaintiff had not discharged the evidentiary onus to establish that the height difference was such to have given rise to a foreseeable risk of injury warranting further steps be taken by the defendants. Her Honour found that the lay and expert evidence was insufficient to establish the amount of the height difference, nor to identify why the plaintiff or another pedestrian walking in the dock would not have been reasonably expected use the designated pedestrian routes and/or in any event not to see and avoid the hazard, particularly in light of the obvious yellow markings in the vicinity of the manhole.

Finally, her Honour found that if the plaintiff had been successful on liability the appropriate assessment was $25,000.00 for general damages and $30,000.00 for economic loss in the past and future. Her Honour found the claim for domestic assistance was unrealistic and made no allowance for that head of damage.

Her Honour found that the plaintiff was aware of the potential for dangers in a loading dock and had no reason not to take the designated pedestrian pathway across the loading dock at the premises. Together the factors demonstrate a failure by the plaintiff to take reasonable care for his own safety, resulting in a significant finding of contributory negligence.

Thus, had the plaintiff succeeded, his loss would have been assessed in the amount of $55,000.00 and a finding of 50% reduction for contributory negligence would have been made, thus entitling the plaintiff to damages in the nominal sum of $27,500.00.

Key Takeaways

The judgement was primarily achieved by a diligent assessment of the copious records of the plaintiff’s workers compensation claim and his clinical medical records. That work allowed the effective cross examination and detailed submissions leading to the finding that the plaintiff was not a truthful witness. That in turn paved the way for the court to accept the credible alternative version leading to the successful defence.

Further though, the judgement is a useful reminder as to the care which must be taken in properly preparing expert evidence to ensure that the expert has the required qualifications and properly supports the opinions expressed with foundation in established facts leading to an admissible opinion relevant to the circumstances of the case.

The expert evidence tendered by the plaintiff in this case fell short of those requirements in establishing the fundamental elements necessary to make out the evidentiary onus. Plainly some steps had been taken to render the premises safe for pedestrians which were brought to the forefront in the defendants’ cases. The plaintiff was then required to tender evidence establishing that those steps were inadequate considering the risk presented by the manhole. He did not do so.

Further information / assistance regarding the issues raised in this article is available from the authors, Prue Loader, Partner, and Izaac Molenkamp, Lawyer, or your usual contact at Moray & Agnew.