Negligence - causation - principles to be applied

Originally Published 15^th September 2008

Case Note Toll Transport Pty Limited v. Raymond Haskins [2008] NSWCA 244

In Brief

• The Court of Appeal declined to overturn the decision of the primary judge who found against the defendant despite the fact that the plaintiff could not explain how the accident in which he was injured occurred.

Background Circumstances

• In 2002 to 2003 the plaintiff, Raymond Haskins, was a self-employed courier contracted to the defendant, Toll Transport Pty Limited.

• In the course of his duties, the plaintiff 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.

• The defendant was the occupier of the depot in which the loading dock from which the plaintiff fell was situated. The loading dock was partially separated by a conveyer belt. Packages were delivered on to the loading dock via a conveyer belt. The loading dock had two sides, which were divided by the conveyer belt. Packages would often fall off the conveyer belt on to the loading dock floor before they reached the end of the conveyer belt.

• On the day of the accident the plaintiff 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 on to the floor below.

District Court Decision

• The trial judge, Phegan DCJ, found that the far side of the dock, where the plaintiff fell, was very often significantly obstructed by packages and other objects. He held that this, coupled with the relatively narrow width of that side of the dock, that is 1.2 metres, and the frequency with which the length of the far side was obstructed by fallen parcels of varying sizes and shapes and other objects, was a potential danger which the defendant failed to address by way of one of two measures:

• His Honour held that if one of these measures had been in place, the risk of injury to the plaintiff would have been averted and there would have been no negligence on the part of the defendant.

• His Honour held that the defendant was aware of the state of the dock and that from time to time the defendant had employed employees to clear the dock. He also found that the defendant 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 and that it was a very narrow space.

• In these circumstance, his Honour held that it was foreseeable that a person using the far side of the conveyer belt for the purpose for which it was being used by the plaintiff immediately prior to his fall, would have had to negotiate their way around obstacles and would be left with very little room for the person to pass, particularly on the outer edge.

• His Honour was satisfied that whilst the plaintiff was unable to provide any details of 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 conveyor belt.

• His Honour held that a foreseeable consequence of his slipping in that area was that he would, as he did, end up on the concrete floor below.

• In these circumstances the trial judge found that the plaintiff's 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 plaintiff's injury occurred was foreseeable on the part of the defendant.

Court of Appeal Decision

• The defendant submitted that the trial judge erred in his Honour's findings of breach in the following ways:

• Allsop P, who wrote the unanimous decision of the Court of Appeal, considered that even though the plaintiff could not precisely identify why he slipped or lost his balance, he did so in an 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. He held that because the area in which the plaintiff fell was narrow, and to a degree cluttered, any casual slip had the likely or foreseeable consequence of falling off the edge of the dock.

• His Honour agreed with the trial judge's finding that the narrowness and the clutter contributed to the fall to the lower floor because of the raised narrow environment and the proximity to the edge.

• Allsop P also agreed with the plaintiff's submissions that a properly organised system, together with properly organised training and a direction to staff, may well have enabled the defendant to deal with the clearing of any clutter in a way that minimised the risk to anyone attempting that task. His Honour noted that although the plaintiff was not an employee of the defendant he was an entrant into a workplace in relation to whom the defendant had responsibilities to ensure an appropriate and safe system was in place consistent with the principles espoused by the High Court in Thompson v Woolworths (Queensland) Pty Ltd [2005] 221 CLR 234.

• On appeal, counsel for the defendant submitted that if it was wrong as to the question of negligence, then there must have been a finding of contributory negligence. Allsop P noted that cross-examination as to the issue of contributory negligence was scant by trial counsel.

• Allsop P held that there was no evidence to conclude that the slip occurred because the plaintiff was failing to take into account any precaution which a sensible person would have taken. His Honour held that the plaintiff was in the elevated space in which he found himself in not because of any lack of care, but because that was the system of work at the defendant's premises. The plaintiff went behind the conveyer on to the far side of the dock as part of carrying out his usual obligations and duties as a contract driver. Allsop P confirmed the judgment of Campbell J in J Blackwood & Son v. Skilled Engineering [2008] NSWCA 142 wherein his Honour held:

  "Any assessment of what reasonable care for a plaintiff's own safety requires that plaintiff to do must take in to account the practical opportunities for choice that the plaintiff has concerning his or her own safety."

Implications

• It is notable that the court was not persuaded to find in favour of the defendant despite the fact that the plaintiff was unable to explain how the accident occurred. The decision seemly circumvents the whole notion of causation and the fact that while there might be negligence and injury, a causative link between the two are required.

• This decision confirms Commissioner for Main Roads v. Jones [2005] HCA 27, wherein Gleeson CJ observed that, where the only evidence concerning causation was that the defendant had breached his duty of care and that the injury that had occurred was within the scope of the risk of injury arising from the breach of duty, it is:

  "Always open to the tribunal of fact to find a causal connection between the breach and the injury, even though the exact cause of the injury or conduct of the plaintiff is unknown."

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