Schonell v Laspina, Trabucco & Co Pty Ltd
[2013] QCA 324
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- Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QCA 324
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Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QCA 324
Schonell v Laspina, Trabucco & Co Pty Ltd[2013] QCA 324
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | SC No 195 of 2012 |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 29 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 October 2013 |
JUDGES: | Chief Justice, Mullins and McMeekin JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: | 1. Appeal dismissed.2. Appellant to pay the respondent’s costs of and incidental to the appeal, to be assessed as necessary on the standard basis. |
CATCHWORDS: | TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – IN GENERAL – the appellant suffered an injury in the course of his employment with the respondent – the appellant was injured when he tried to move from a platform onto a ladder which gave way – the ladder had been visually inspected before use and no defects were observed, but its brace was later found to be defective – the primary Judge found that the appellant had failed to demonstrate any negligent act or omission by the respondent and dismissed the claim – whether the defect in the ladder was discoverable by any reasonable inspection that the respondent ought to have performed – whether the appellant had discharged the onus of proving that the defect in the ladder had caused his fall and resulting injury – whether the primary Judge’s factual conclusions were reasonably open on the evidence Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20, applied Schonell v Laspina, Trabucco & Co Pty Ltd [2013] QSC 90, affirmed Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, applied |
COUNSEL: | P V Ambrose QC, with M E Eliadis, for the appellant S C Williams QC, with W D P Campbell, for the respondent |
SOLICITORS: | Shine Lawyers for the appellant B T Lawyers for the respondent |
[1] CHIEF JUSTICE: The appellant was injured on 20 June 2008, in the course of his employment by the respondent as a block layer. The learned trial Judge assessed damages at $1,115,959.50, but dismissed the claim, finding that the appellant had not established “that any action or lack of action by the defendant either caused or contributed to his injury or that the defendant was otherwise negligent”.
[2] The appellant had been working from a platform comprising aluminium planks set on trestles. Having completed his work, he stepped from that platform onto an adjacent ladder. The ladder gave way. As he attempted to return to the platform, he injured his left knee.
[3] With one exception to which I will come, the learned Judge accepted the appellant’s account of how he descended from the platform. His Honour said:
“After finishing the job he was doing he moved across the platform towards the ladder and stood on the plank closest to the ladder with both feet. He then put both of his hands on the top of the ladder to steady himself and placed his right foot onto the rung of the ladder that was directly below the platform. It was about 200 millimetres below the level of the platform. When he did this, his left foot remained on the plank closest to the ladder. As he transferred his weight onto his right foot, the ladder suddenly ‘shunted’ (that was the term used by the plaintiff), by which he meant that the rung on which he was standing dropped suddenly in height. The plaintiff believed that the ladder was falling and swivelled his weight onto his left leg. As he did this his left foot became caught on the edge of the adjacent plank and as he returned to the platform his left leg was bent with his weight bearing on the back of his heel. He felt, and heard, a tearing in his left knee like a thick piece of plastic being torn.”
[4] The Judge did not accept the appellant’s evidence that as he transferred his weight back onto his left leg, his left foot was caught on the edge of the adjacent plank. He did however accept that the appellant’s left foot twisted as he attempted to return to the platform. Nothing now turns on those findings.
[5] The ladder suddenly lowered, or partially collapsed, when the appellant stepped with his right foot onto the rung, because the brace on the ladder was defective. But as his Honour found, the respondent had sufficiently checked the ladder before it was used: those checks had not uncovered the deficiency.
[6] His Honour referred to the exposition in Vairy v Wyong Shire Council (2005) 223 CLR 422, paras 124-128, per Hayne J, highlighting these passages:
“…The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be ‘nothing’….
When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about breach of duty must attempt to identify the reasonable person’s response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury.”
[7] His Honour then expressed his conclusion in this way:
“The question which has to be answered is: what would the reasonable person have done to avoid what is now known to have occurred? It was not established that the use of this type of ladder was inappropriate. To guard against the possibility of a failure in some part of the ladder the action of a reasonable person would have been to inspect the ladder at a time close to its proposed use – “the practically useful means”. This was done. The fact that there was a failure does not, by itself, establish negligence.”
[8] His Honour’s summary of the evidence relating to the pre-accident inspections of the ladder, and its significance, follows:
“[6]A scaffold had been erected for the use of the plaintiff by Gary Duvalois. Mr Duvalois was a labourer employed by the defendant to erect scaffolds, and to supply block layers with blocks and mortar.
[7]The scaffold consisted of two A-frame trestles and four aluminium planks. A ladder was placed next to the scaffold to provide access to the platform created by the planks. The plaintiff said that the planks were four metres long. This is of some importance because the extent to which the planks would flex was an issue. I prefer the evidence of Mr Duvalois on this point. It was his job to create the scaffold and his evidence was convincing when he spoke of his reasons for saying that the planks were three metres long. He made it clear that if the planks had been four metres long, then he would have used three trestles rather than two. I find that the planks used were three metres long and there was an overhang at each end beyond the trestle of about 100 millimetres. The planks formed a work surface about 900 millimetres wide by 2.8 metres long.
[8]After Mr Duvalois put the scaffold together he made a visual inspection of the ladder and satisfied himself that the bracket hinge between the two uprights was locked and unbroken. He said that he pushed the hinge down so that it would “click” into place. In cross-examination he was referred to a statement that he had provided to an interviewer from WorkCover. In that statement he said:
‘I remember that when I returned some minutes later the ladder did not look much chop as the little angle bracket was broken but when I set it up initially the bracket was not broken. … I remember that when I set it up I made sure the bracket hinge between the two uprights was locked and unbroken.’ (emphasis added)
[9]He then said:
‘Well, obviously when you set up those ladders --- ? - - Yeah. When you ---
The two stiles are together, are they not? - - Yes.
You open up the ladders with your arms, presumably? - - Yes. Yep.
And you push down the --- ? - - Yes.
The things to click them into place; is that correct? - - Yes.
Okay? - - So you automatically know if there is something wrong with it because you have to actually enable it to be right.
Yes. And had that part of the bracket been broken at that time you would have seen it? - - It would have flexed.’
[10]Before ascending the ladder the plaintiff tested it for stability. He did this by giving it “a shake to make sure it was secure”. He also performed a cursory examination to make sure that “it had the two braces and there was no rubbish on the steps that could trip [him] up.” There was no evidence of anything untoward occurring when the plaintiff used the ladder to get onto the platform in order to lay the blocks.
[11]In summary, then, both the person who put the ladder up and the person who had to climb it checked it before use. There was no evidence that there was anything which would have suggested that the ladder was likely to break or collapse.
[12]The plaintiff called Dr David Jenkins, an engineer with substantial experience in mechanical testing, analysis and troubleshooting. He dealt with a number of matters in his report (Ex 35). With respect to what might have been done by the defendant he said:
‘From the point of view of possible preventive action which could have been taken, the fact that Mr Duvalois states that when he set up the ladder he “made sure the bracket hinge between the two uprights was locked and unbroken” is significant. It is difficult to envisage a more practically useful means of identifying failure or incipient failures than a visual inspection immediately before the equipment is placed into service, including a check that the link (“bracket hinge”) was locked in place.’ (emphasis added)
[13]Dr Jenkins then went on in his report to consider other means of testing for faults – these were generally of considerable cost and would not have been practicable – and observed:
‘Regular, careful, pre-use visual inspections are a reasonable, practical and effective means of detecting dangerous damage or structural failures in portable industrial ladders.’
[14]The ladder did have a defective brace – there was satisfactory evidence that immediately after the incident the brace was seen to have been broken – but the “practically useful means” of checking undertaken by the defendant did not disclose that to the defendant.
[15]There was no evidence of any regular inspections by the defendant of this equipment but, importantly for this case, there was the evidence (which I accept) of inspection before use on this occasion. The absence of regular inspections means nothing if an inspection immediately before an incident discloses nothing untoward.
[16]It was submitted for the plaintiff that Mr Duvalois failed to properly inspect the ladder. This is a submission which cannot be accepted in circumstances where:
(a)Mr Duvalois was called for the plaintiff,
(b)No attempt was made to lead evidence of inadequacy of inspection by him,
(c)When he was asked in chief about his statement to WorkCover he confirmed that it was true, and
(d)In that statement he says “I made sure the bracket hinge between the two uprights was locked and unbroken”.
[17]The submission that a conventional ladder should have been used was not established by the plaintiff. There was nothing to suggest that the use of this particular type of ladder was dangerous. Indeed, it was accepted by all witnesses that it was a common means of gaining access to a platform in these circumstances.”
[9] The ambit of the appeal substantially contracted after the filing of the notice of appeal. The only remaining grounds are ground 12 to 19, as follows:
“12.The primary Judge erred in holding (concluding) that, because Mr Duvalois visually "inspected" the ladder, and the appellant performed a cursory visual examination of the ladder before use, there would have been "no evidence", on proper and adequate inspection of the ladder as required by the respondent's Health and Safety Guidelines Handbook "which would have suggested that the ladder was likely to breach or collapse." The primary Judge erred in failing to differentiate between visual inspections of the ladder carried out by the respondent's workers in the ordinary course of performing their duties, and inspections which ought reasonably to have been carried out by the respondent employer for the specific purpose of looking for defects in, and ascertaining the safety of the ladder for use by its workers.
13.The primary Judge erred in finding that the absence of regular inspections by the employer meant "nothing" because the visual "inspections" performed by Mr Duvalois and the appellant immediately before the accident disclosed nothing untoward.
14.The primary Judge erred in failing to hold that the respondent's failure to conduct regular, careful inspections would have detected the defect in the ladder and avoided the appellant's injury.
15.The primary Judge erred in failing to hold that the respondent failed to conduct proper and adequate inspections of the ladder in accordance with its common law duties of care, and in accordance with the respondent's Health and Safety Guidelines Handbook, and that such failures were the cause of the appellant's injury.
16.The primary Judge erred in failing to hold that the respondent had an evidentiary onus of establishing that compliance with its common law obligations of inspection and with its own Health and Safety Guidelines Handbook would not have revealed the defect in the ladder.
17.The primary Judge, having held the ladder had a defective brace, erred in failing to hold that the respondent breached its common law duty of care and its contractual obligations to provide the appellant with safe and adequate equipment, and that such breaches were a cause of the appellant's injury.
18.The primary Judge erred in failing to hold that the visual inspections as were carried out by the respondent were not sufficient to discharge the respondent's duty of care to the appellant, and the respondent's failure to discharge its duty of care was the cause of the appellant's injury.
19.The primary Judge failed to give any, or any sufficient, weight to the fact that the respondent did not allege the defect in the ladder, that is, the defective brace, was an inherent, hidden defect, unable to be ascertained by the carrying out of proper and adequate inspections and examination by the respondent. On 13 November 2012, 13 days before the commencement date of the trial, the Court would not permit an amendment to the defence to permit the respondent to allege that the failure of the ladder was as a result of a latent defect, which was not apparent despite the respondent's exercise of reasonable care.”
[10] I now deal with those grounds.
Ground 12
“The primary Judge erred in holding (concluding) that, because Mr Duvalois visually "inspected" the ladder, and the appellant performed a cursory visual examination of the ladder before use, there would have been "no evidence", on proper and adequate inspection of the ladder as required by the respondent's Health and Safety Guidelines Handbook "which would have suggested that the ladder was likely to breach or collapse." The primary Judge erred in failing to differentiate between visual inspections of the ladder carried out by the respondent's workers in the ordinary course of performing their duties, and inspections which ought reasonably to have been carried out by the respondent employer for the specific purpose of looking for defects in, and ascertaining the safety of the ladder for use by its workers.”
[11] It was noticed after the incident that the bracket had broken. But on the expert evidence, there was no clear basis on which to conclude that it was the breaking of the bracket which caused the collapse of the ladder. Dr Jenkins said:
“The cause of failure of the bracket hinge is not clear, but the failure may have occurred as a result of the incident. In the absence of any photographs or other records, it is not possible to be definitive in determining the cause of failure (if failure in fact occurred).”
[12] Dr Jenkins considered the most likely explanation for the collapse of the ladder related to the manner in which the appellant’s weight was applied to it. He put it this way:
“One possible mode of occurrence of the ‘shunting’ or movement of the ladder would be if the ladder, under the influence of the sideways thrust of the plaintiff’s weight being applied to the rung, tended to tip outwards i.e. away from the platform. This could occur by rotation of the ladder about the outer two feet i.e. those remote from the platform. This would involve unloading of the feet nearest the platform, or even their lifting off the ground. Such a movement would be limited by the tie which connected the stile to the platform…[e]ven if the wire tie had been twisted using a tool, there would be the potential for some movement at this location as the wire was tensioned. If the wire were only twisted by hand, then potential for greater movement would exist.
In this context only a small amount of outward and consequent downward movement of the rung would be required to cause the plaintiff to form the view that the ladder was giving way and not supporting his weight. The expected movement is exactly what is described by Mr O'Sullivan in the third dot point in his report, page 6 ‘the rung dropped a bit in height and appeared to tip slightly’. Such a movement and the consequent response would be completely consistent with the ladder tipping about the two feet remote from the platform, within the constraint provided by the tie.
In my opinion this is the most likely explanation of the observed and perceived movement.”
[13] The broken bracket was not retained after the incident. It was therefore not possible to produce at the trial evidence of the post-incident state of the bracket, from which it may perhaps have been possible to draw conclusions as to its earlier condition, in relation for example to whether there was a crack, the extent of any crack and its visibility on careful inspection.
[14] In relation to that matter, Dr Jenkins said this:
“…[T]he only practicable means of crack detection would be by visual inspection. That is, it may be possible to detect cracks of some physical extent (e.g. more than three mm long) by purely visual means. Not all cracks, even of such a size, will be visible to the naked eye…
In the case of ductile materials such as the aluminium of the ladder components, the rate of crack growth is quite small. Hence a crack will only reach the critical stage, that is, when the application of one more load cycle causes rupture, when its length is quite considerable, a significant fraction of the size of the component. That is, if there was a pre-existing crack in the component that failed, then it would have been expected that Mr Duvalois would have noticed it when setting up the ladder.”
[15] As it was put by Mr Williams QC who appeared for the respondent, Dr Jenkins did not implicate the failure of the bracket in the movement of the ladder which led to the appellant’s injury.
[16] While the learned Judge expressed no view on this, I think it is implicit in what he said that because what he regarded as an appropriate inspection prior to use did not disclose any defect, and the appellant had successfully and safely ascended the ladder earlier, there would probably have been no visible crack. Hence the Judge’s finding (para 11):
“In summary, then, both the person who put the ladder up and the person who had to climb it checked it before use. There was no evidence that there was anything which would have suggested that the ladder was likely to break or collapse.”
[17] Mr Ambrose QC, who appeared for the appellant, suggested this should be read as saying no more than that the appellant and Mr Duvalois (through their cursory examination) detected no defect. But I think on a fair reading that the Judge is to be taken as saying more than that: he is to be taken as saying that those persons carried out an adequate check, and that there was no visible defect which such a check would have uncovered.
[18] The appellant essentially contends that the Judge ought to have found that the observations of Mr Duvalois and the appellant before the use of the ladder were inadequate, and that a more detailed regular examination of the ladder would have disclosed the defect. As it was submitted, “regular pre-use visual inspections are important, but alone are no substitute for regular maintenance by a competent person accompanied by pre-use visual inspection by a competent person”. Reference was made to the respondent’s handbook on “Health and Safety Guidelines for Employees”, provided to employees upon engagement.
[19] The appellant challenged his Honour’s factual conclusion that the “practically useful” examination or inspections carried out by Mr Duvalois and the appellant, which did not uncover the defect, were adequate. That conclusion was however reasonably open.
[20] Mr Duvalois, for example, said that he “made sure” the hinge was locked and unbroken. His Honour expressly rejected a contention that the inspection by Mr Duvalois was inadequate. The Judge also accepted the appellant’s own evidence that he had tested the ladder for stability before using it, and had carried out an inspection, albeit “cursory”, to identify the braces and absence of rubbish from the rungs.
[21] As to a contrast between the inspections carried out by Mr Duvalois and the appellant, and such as could have been done under some sort of rolling maintenance program, the Judge was entitled to conclude that “The absence of regular inspections means nothing if an inspection immediately before an incident discloses nothing untoward”. And that sufficiently answered the appellant’s reliance on the handbook.
Ground 13
“The primary Judge erred in finding that the absence of regular inspections by the employer meant "nothing" because the visual "inspections" performed by Mr Duvalois and the appellant immediately before the accident disclosed nothing untoward.”
[22] His Honour’s conclusion was reasonably open. He was entitled to conclude, as he effectively did, that because reasonable inspections proximate to the use of the ladder revealed no problem, neither would previous inspections, carried out as part of a rolling maintenance program, have done so. This is a fundamentally factual conclusion: being reasonably open, it is not vulnerable to interference on appeal.
Ground 14
“The primary Judge erred in failing to hold that the respondent's failure to conduct regular, careful inspections would have detected the defect in the ladder and avoided the appellant's injury.”
[23] A similar response to that set out in relation to Ground 13 is apposite here.
Ground 15
“The primary Judge erred in failing to hold that the respondent failed to conduct proper and adequate inspections of the ladder in accordance with its common law duties of care, and in accordance with the respondent's Health and Safety Guidelines Handbook, and that such failures were the cause of the appellant's injury.”
[24] Ditto.
Ground 16
“The primary Judge erred in failing to hold that the respondent had an evidentiary onus of establishing that compliance with its common law obligations of inspection and with its own Health and Safety Guidelines Handbook would not have revealed the defect in the ladder.”
[25] The applicable burden of proof rested on the appellant.
[26] The respondent did in fact plead that there was no defect in the brace which reasonable inspection would have disclosed (para 10(h)D amended defence dated 14 November 2012).
[27] The evidence of Mr Duvalois and the appellant and Dr Jenkins effectively established that.
[28] There was no need for the respondent to go further, or obligation upon it to do so.
Ground 17
“The primary Judge, having held the ladder had a defective brace, erred in failing to hold that the respondent breached its common law duty of care and its contractual obligations to provide the appellant with safe and adequate equipment, and that such breaches were a cause of the appellant's injury.”
[29] It is important to note that the Judge did not enter upon the question whether the breaking of the bracket caused the collapse of the ladder. (In para [14] of his reasons, he refers to the condition of the brace after the incident: he made no finding as to when the bracket broke – and on the evidence he could not.) That is unsurprising. Dr Jenkins was not prepared to express any conclusion about the relationship between the collapse and the breaking of the bracket, and under his preferred scenario, the breaking of the bracket may well have followed subsequently upon the collapse of the ladder.
[30] On the available evidence, whether or not prior to use the bracket was cracked, and whether that crack should reasonably have been detected upon inspection, were matters for mere speculation, not reasonable inference. The appellant did not establish, and was unable to establish, that the bracket, prior to use, displayed a visible crack.
[31] The point is that because the respondent had acted reasonably, its failure nevertheless to identify the defect in the ladder did not attract liability. Reference might usefully be made to what Hayne J said in Vairy, extracted above.
Ground 18
“The primary Judge erred in failing to hold that the visual inspections as were carried out by the respondent were not sufficient to discharge the respondent's duty of care to the appellant, and the respondent's failure to discharge its duty of care was the cause of the appellant's injury.”
[32] The Judge was entitled to conclude, having heard the witnesses, that the inspections carried out by Mr Duvalois and the appellant were reasonable and adequate.
Ground 19
“The primary Judge failed to give any, or any sufficient, weight to the fact that the respondent did not allege the defect in the ladder, that is, the defective brace, was an inherent, hidden defect, unable to be ascertained by the carrying out of proper and adequate inspections and examination by the respondent. On 13 November 2012, 13 days before the commencement date of the trial, the Court would not permit an amendment to the defence to permit the respondent to allege that the failure of the ladder was as a result of a latent defect, which was not apparent despite the respondent's exercise of reasonable care.”
[33] I refer back to the response made above in relation to Ground 16.
Conclusion
[34] The Judge’s factual findings were reasonably open. None of the grounds of appeal which were pursued, was sustained.
Orders
[35] I would order that the appeal be dismissed, and that the appellant pay the respondent’s costs of and incidental to the appeal, to be assessed as necessary on the standard basis.
[36] MULLINS J: I agree with the Chief Justice.
[37] McMEEKIN J: I have had the advantage of reading the reasons of the Chief Justice and agree with them but wish to add a few words of my own.
[38] Mr Schonell has suffered a very serious injury in the course of his employment when he injured his knee in a fall from a ladder. After the event it was found that the ladder from which he fell was defective, in the sense that there was a crack found to be present in a brace. It is understandable that he would think the injury and the defect to be connected. And in the context of the employer not having any system of inspection procedure in place[2] and the ladder being “fairly old”[3] his disappointment in failing to obtain a judgment for damages assessed at a sum in excess of $1,000,000 can well be imagined.
[39] It is true that the defect in the ladder possibly caused the fall but that is not enough. As the High Court stated in St George Club Ltd v Hines (1961) 35 ALJR 106 at 107:
“In an action at law a plaintiff does not prove his case merely by showing that it was possible that his injury was caused by the defendant's default, Binnington Castings Ltd v Wardlow (1956) AC 613); nor does proof of default followed by injury show that the default caused the injury, for as Viscount Simonds said in Quinn v Cameron and Robertson Ltd (1958) AC 9 at p 23), 'Post hoc, ergo propter hoc' is a fallacy in respect of a breach of a statutory regulation as it is in respect of any other event in life.”
[40] And I would add just as much a fallacy in respect of a breach of duty at common law.
[41] Mr Schonell’s difficulty is that the evidence did not establish on the balance of probabilities the two crucial matters that he needed to show to succeed. The first is that the defect in the ladder caused his fall which resulted in his injury.[4] The second is that the defect was discoverable by some measure that his employer ought reasonably to have adopted before the event.
[42] There was no direct evidence as to what caused the fall or when precisely in the sequence of events the injury occurred. There were competing possible hypotheses. In that situation it was incumbent on the plaintiff to demonstrate that the hypothesis consistent with negligence on the part of his employer was the more probable.
[43] Here the competing possibility was that the injury and fall were sustained not by the ladder collapsing because of a pre-existing defect but by the plank on which Mr Schonell was standing shifting under his weight, he twisting his knee in reaction to that sudden shift, and that causing the ladder to fall. As the Chief Justice points out Dr Jenkins considered this to be the more likely scenario.[5] Admittedly that by no means concludes the matter as Dr Jenkins was then speaking from a set of assumptions provided by the defendant’s side and not the evidence eventually led, but his opinion on this point was not shown to be wrong by reason of the evidence led.
[44] Mr Ambrose pointed to Mr Schonell’s evidence that he tied the plank with wire before his fall and he explained that it was tied tightly by hand. But the evidence did not go so far as showing, on the balance of probabilities, that the plank could not shift as Dr Jenkins said it could. As Dr Jenkins observed there was “potential for greater movement” when tensioned by hand.[6]
[45] That analysis is sufficient to conclude the matter against Mr Schonell.
[46] However, as the learned trial judge found, the evidence did not go so far as demonstrating that the defect in the ladder was discoverable by any reasonable inspection that could have been performed. So even if the foregoing analysis be wrong it cannot be concluded that the employer has breached its duty of care, a duty which the authorities show to involve a high standard of care but nonetheless one based on a reasonable response to the risk in question: see the discussion in Bankstown Foundry Pty Ltd v Braistina.[7] Again the relevant standard of proof is the balance of probabilities.
[47] It was common ground that anything other than visual inspection of the ladder was impracticable because of expense and the delay that other forms of more sensitive testing would entail. The evidence was largely silent as to the frequency of inspections, but again it was common ground that the ladder was inspected every time before use,[8] perhaps by two people, the one who erected the scaffolding incorporating the ladder and the user of the ladder, if that person was a different individual as it was on the day of Mr Schonell’s fall. It was common ground that no person, including Mr Schonell and Mr Duvalois each of whom inspected the ladder on the day of the accident and prior to the fall, detected any cracking of the ladder to indicate the possibility of a defect.
[48] Mr Schonell relies on the evidence of Dr Jenkins that the Chief Justice has quoted[9] but that does not establish the necessity of a visible crack being present prior to the accident. Equally his evidence is consistent with two other inferences - that for the crack to have been causative of the event it would need to have been of such a size that it could not have been missed; alternatively, the application of force in the instant case was not the same as, but possibly exceeded, the load in “one more load cycle” referred to by Dr Jenkins by which he meant one more use of the ladder in the normal way.[10] In each of those scenarios any defect present, if there was one, would probably have been too small to be seen.
[49] These two hypotheses needed to be excluded by the appellant on the balance of probabilities and in my view were not.
[50] While the direct proposition was not put to Mr Duvalois, the whole tenor of his evidence is that, when examining the brace earlier in the day before the accident, he would have expected to see a crack had one been present in the brace and visible, which post accident he saw to be broken.[11] While Mr Duvalois agreed that he had just a “general look”[12] questions were not asked, perhaps for good reason, of the time spent examining the ladder, whether the precise area where the crack was later found was examined or even easily seen, whether dirt or other material may have impeded any inspection and if so what steps were taken to remove any such impediment, how frequently the ladder was used and so inspected, and so on.
[51] Effectively Mr Schonell’s arguments were based on the premise that the Court could not be satisfied that the prior inspections, however many there were, were carried out with the degree of care necessary to detect an already visible crack. I agree with the Chief Justice that the argument involves a degree of impermissible speculation.
[52] I agree with the orders proposed by the Chief Justice.
Footnotes
[2] See the evidence of Mr Duvalois at AB 215/ll 15-20.
[3] AB 218/ll 5.
[4] In this regard the appellant’s outline at [8] misstates the trial judge’s findings at [14] of the Reasons.
[5] See [12] above.
[6] AB 357/ll450.
[7] (1986) 160 CLR 301 at 308-309 per Mason, Wilson and Dawson JJ.
[8] AB 232/ll 45; AB 334 para 16.
[9] At [14] above.
[10] See the evidence of Dr Jenkins concerning forces at AB 255-256 and his opinion at AB 356/ll 437-439.
[11] See Mr Duvalois’ statement (Ex 28 at AB 332-334), his evidence at AB 231 and the debate at AB 234-235.
[12] AB 234/ll 30.