Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99

  • A finding of contributory negligence still turns on a factual investigation of whether the plaintiff contributed to his or her own loss.

Why is this slip and fall case in Product Risk Review 2008? Because it is a useful example of an important principle and in our editorial discretion we have decided that a slippery surface is a defective product.

Mr Pollard was injured when he slipped and fell on the surface of a wash bay while cleaning the tyres of his truck after making a delivery of concrete to the M5 East Motorway Project. He brought proceedings against Baulderstone Hornibrook alleging his injuries were caused by their negligence and breach of statutory duty. Pollard was successful at first instance but challenged four aspects of the award of damages including the finding that he was guilty of contributory negligence.

At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed.

Post-tort law reform, the issue of contributory negligence is governed by statute, specifically in New South Wales by section 5R of the Civil Liability Act which provides:

"(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time."

The Court of Appeal noted that a finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff's position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety.

In the view of the primary judge, Mr Pollard's conduct in taking a step backwards in circumstances where he "may have looked to see where [he] was stepping" but "was not paying particular attention to the structure of the grid" amounted to a failure to take reasonable care for his own safety judged against the standard required by section 5R.

However, the primary judge found that Mr Pollard was not guilty of contributory negligence in attempting to clean the wheels, in circumstances where his evidence was that he knew the metal rails on which he was walking were muddy and slippery and that there was mud on his boots. Immediately before Mr Pollard fell he had already cleaned the offside front wheel and was hosing the first set of rear tyres without incident.

As far as the NSW Court of Appeal was concerned, these two findings were somehow inconsistent. It thought that there was nothing unusual in the step that Mr Pollard took immediately prior to his fall. In circumstances where the primary judge concluded he was not guilty of contributory negligence in hosing the tyres on a muddy, slippery surface while wearing muddy boots, the single step he took backwards did not amount to a failure on his part to take reasonable care for his own safety within the meaning of section 5R.

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