Wilkinson v BP Australia Pty Limited  QSC 171
Defendants are often called upon to consider whether expert evidence is required to defend a claim. When a plaintiff does not serve expert evidence, there is a temptation for a defendant to decline to serve expert evidence. Why take the risk that your report will prove the plaintiff's case?
In this case, the Queensland Supreme Court held that, despite the plaintiff not disclosing any expert evidence as to the failure of a metal strip to meet the required level of slip resistance, the plaintiff had nonetheless satisfied the evidentiary burden in proving that the metal strip posed a significant slipping hazard. The plaintiff was successful in his claim for damages in absence of any expert evidence.
The plaintiff, Mr Wilkinson was employed as a fuel tanker driver. In the course of his employment he was required to attend BP Australia Pty Limited's fuel terminal to fill trailers with distillate fuel.
It was necessary for Wilkinson to enter a part of the fuel terminal called the bay loader. That required him to step up from a concrete apron onto the entry to the bay loader. The step was estimated to be about 75 centimetres. On the edge of the step was a metal strip of some 75 millimetres in width. The strip was described by Wilkson as 'glassy, smooth steel'. It was located in the natural place to put a foot on mounting the step.
Wilkinson gave evidence that he entered the bay loader and then stepped up on to the step with his right foot. As he did so, he placed his foot on the metal strip. His foot then slipped out from under him going backwards causing him to fall forward and injure his right knee.
The principal issue was whether the metal strip on the edge of the step into the bay loader of the fuel depot presented a risk of injury against which BP should have guarded.
In its defence, BP submitted that that there was no evidence to support the plaintiff's contention that the step constituted a slipping hazard. The only relevant evidence led was from Wilkinson himself. His account was:
'On numerous occasions I have walked back in there and slipped but I've never injured myself, and probably to the point where it was pretty much a conscious act to make sure I wasn't stepping on it, I'd step clearly over it onto the actual concrete area instead of the steel itself. On that particular day and that hour of the day, it slipped my mind and I got on it and that's when the incident occurred.'
Wilkinson agreed that he had attended at the fuel terminal on every working day for approximately 10 years prior to the incident. He had ascended the step from the apron on probably thousands of occasions and was intimately familiar with the whole area.
Wilkinson also conceded he had gone through an induction procedure on many occasions. Part of that procedure dealt with hazard awareness and reporting. The procedure required that if a worker became aware of any hazard or defect in the premises it was the worker's responsibility to put in a report about it. Wilkinson agreed that despite inductions and instructions to report hazards and defects in the plant he had not reported this defect.
BP submitted that Wilkinson had failed to establish that there was any significant risk of slipping based on the combination of:
- The plaintiff failing to file any hazard / defect report prior to the subject incident
- The absence of any evidence from any other driver that the metal strip presented a slipping hazard
- The absence of any of the usual sort of evidence that one would expect in a case such as this, such as testing of the coefficient of friction of the metal strip.
The court dismissed BP's submissions and held that:
- Wilkinson's attitude to reporting hazards and / or defects was influenced by his perception of when his responsibility arose. It was clear from his evidence that he thought his responsibility was triggered if he was hurt and he considered that to be the attitude of others in the workforce. As a consequence, the fact that he did not file a report did not mean that his evidence about prior incidents of slipping was not truthful
- The absence of evidence other than that from Wilkinson cuts both ways. BP submitted that if the metal strip was a hazard then there would have been dozens, if not hundreds, of truck drivers who had come to the premises over the years who would have become aware of it. No witnesses were called to support Wilkinson. But equally, no witnesses were called by BP to deny Wilkinson's allegation
- Even more significantly, BP led no evidence of its own as to tests of the coefficient of friction of the metal strip. If anything, BP had available to it far more resources than a mere truck driver. The claim that a shiny metal surface was slippery was hardly inherently improbable. A negative inference could be drawn as a result the absence of such evidence being led by BP
- Once the hazard was reported by Wilkinson, BP's terminal manager fitted anti-slip tape to the metal strip to eliminate the hazard. Therefore, BP accepted the criticism in the defect report supplied by Wilkinson as legitimate and thought it appropriate to take action. Wilkinson's evidence was the only evidence presented to the court. The court found that that Wilkinson gave his evidence in a very forthright manner and there was no reason to think that he was doing other than his best to tell the truth.
The only criticism of Wilkinson's credit was his failure to file a hazard / defect report. The court found that such failure to do so was perfectly explicable. The court was therefore satisfied that the metal strip constituted a slipping hazard and that the risk was foreseeable.
The next question to be determined by the court was whether BP's response to the risk, in doing nothing, was reasonable. In making a finding that BP response was not reasonable, the court held that the risk of slipping was significant and, therefore, BP should have taken steps to eliminate the hazard. The court then went on to find that the provision of anti-slip tape to the metal strip was a practical and effective cautionary measure in meeting the risk.
The court concluded that Wilkinson had established his case.
When a plaintiff does not disclose expert evidence to support an allegation of an alleged failure to comply with the required standards, the plaintiff may fail to satisfy the evidentiary burden. However, in cases where a plaintiff provides compelling lay evidence as to defects, and the defendant fails to disclose any expert evidence in response, a court may be inclined to rely upon the plaintiff's lay evidence in making an adverse finding against the defendant. This is more so the case in situations where the defendant has significant resources at its disposal to obtain such evidence.
Defendants must be mindful when deciding whether expert evidence is required to assist in defending a claim. Consideration should not be restricted to responding to plaintiffs' expert evidence and should take into account plaintiffs' claims as a whole.
Had BP disclosed expert evidence confirming that the metal strip was not a hazard or, alternatively, had led positive evidence that the metal strip did not pose a risk of injury, then the Queensland Supreme Court's decision may have been in BP's favour.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.