Pollard v Baulderstone Hornibrook Engineering Pty Ltd 
A finding of contributory negligence still turns on a factual
investigation of whether the plaintiff contributed to his or her
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
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
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
(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,
(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
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