Council of the City of Gold Coast v Stocks
[2002] QDC 304
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- Unreported Judgment
- Council of the City of Gold Coast v Stocks[2002] QDC 304
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Council of the City of Gold Coast v Stocks[2002] QDC 304
Council of the City of Gold Coast v Stocks[2002] QDC 304
DISTRICT COURT OF QUEENSLAND
CITATION: | Council of the City of Gold Coast v Stocks [2002] QDC 304 |
PARTIES: BY APPEAL | council of the city of gold coast Appellant and ALEXANDER ALBERT STOCKS Respondent |
AND BY CROSS-APPEAL | ALEXANDER ALBERT STOCKS Appellant by Cross-Appeal and council of the city of gold coast Respondent by Cross-Appeal |
FILE NO/S: | Appeal No. 111/01 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court Southport |
DELIVERED ON: | 15 October 2002 |
DELIVERED AT: | Southport |
HEARING DATE: | 20 September 2002 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: |
|
CATCHWORDS: | NEGLIGENCE – OCCUPIER’S LIABILITY – ESSENTIALS OF ACTION FOR NEGLIGENCE – whether local authority negligent in failing to fence refuse tip – whether negligence caused plaintiff’s injury Cases considered: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bennett v Minister of Community Welfare (1992) 176 CLR Betts v Whittingslowe (1946) 71 CLR 637 Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 Brodie v Singleton Shire Council Chappell v Hart (1998) 195 CLR 232 Ghantous v Hawkesbury City Council (2001) 180 ALR 145 Gondoline Pty Ltd v Hansford (2002) WASCA 214 Griffin v Coles Myer Ltd [1992] 2 Qd R 478 Hackshaw v Shaw (1984) 155 CLR 614 Kocis v S E Dickens Pty Ltd (1996) BC 9601051 Lanyon v Noosa District Junior Rugby League Football Club Inc (2002) QCA 163 Lombardi v Holroyd City Council (2002) NSWCA 252 Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305 Miller v Livingstone Shire Council (2002) QSC 180 Percy v Noosa Shire Council (2002) QCA 245 Sopher v Gold Coast City Council (2002) QCA 118 Spencer v Council of the City of Maryborough (2002) QCA 250 State of New South Wales v Steed (2001) NSWCA 178 Taber v NSW Land and Housing Corporation (2001) NSWCA 182 Treloar v Dache-Haven Pty Ltd (2001) QDC 044 Wilkinson v Law Courts Limited (2001) NSWCA 196 Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | Mr K Howe for appellant/defendant Ms K T Magee for respondent/plaintiff |
SOLICITORS: | O'Keefe Mahoney Bennett for appellant/defendant Davies-Graham & Associates for respondent/plaintiff |
- [1]This is an appeal and cross-appeal from the decision of Ms Cornack, Magistrate, after a trial in Southport Magistrates Court on 16 October 2001 in which she found that the plaintiff, who was injured when he fell into a refuse bin at the defendant’s garbage tip, was entitled to recover damages, but those damages should be reduced by 40 per cent for contributory negligence. The appellant/defendant appeals the entire decision, under which the respondent/plaintiff was awarded $20,849.28 inclusive of costs. The respondent/plaintiff resists that appeal, and cross-appeals the finding of contributory negligence against him and contends he should recover one hundred per cent of his damages.
- [2]The plaintiff, a male born 30 August 1932, drove his utility to the Miami transfer station at Sonia Street, Miami on 22 September 1999 intending to deposit a load of lawn clippings there. The grass clippings were on a plastic sheet in the bottom of the tray of the utility. He described reversing his vehicle towards the edge of a steel container, in the form of a bin set below ground level, alighting, and pulling on the piece of plastic. Unfortunately, a piece of it tore off and he lost his balance and fell into the bin, and was injured. It was put to him in cross-examination that he was in fact standing on or near the tray of the utility but he denied this, or that he slipped or tripped near the edge of the refuse bin. The Magistrate accepted his version of these events which appears in his evidence-in-chief in these terms:
“And what happened? - A piece of it tore off and when that tore off I went off balance and reached out for something but there was nothing there to sort of grab hold of and I went to the bottom of the bin.”
…
“I just reached in to pull a bit of rubbish out – and hold a bit of plastic – it tore and I went off balance.
And you what? – I went off balance.
Went off balance. Did you fall into the pit backwards or forwards? – Sideways[1].”
- [3]As the case was conducted before the Magistrate, the plaintiff advanced his cause of action in negligence alone[2]. The allegations against the defendant were:
“(a) Failure to fence off the garbage bin so as to minimise the risk of persons such as the plaintiff from falling into the garbage bin;
(b)Failure to erect and maintain any or any adequate warning signs in or around the transfer station and/or in the immediate vicinity of the garbage bin in order to warn persons as they approached the edge of the garbage bin to take extra care for their safety;
(c)Failing to supervise or properly supervise the area around the garbage bin to ensure that the plaintiff was warned about the dangers of walking around near the edges of the garbage bin;
(d)Failure to restrict the plaintiff’s access to the garbage bin to only one side of the garbage bin, at which side a conveyor belt could have been provided at ground level to assist with his dumping rubbish into the garbage bin – as with garbage bins elsewhere within the transfer station.”
- [4]The plaintiff was the only witness called in his case. Through him some photographs of the relevant bin, and other parts of this and other refuse tips maintained by this defendant were tendered (Exhibit 2). The Magistrate found that at the edge of the bin there was only a small raised concrete lip, which is clearly shown in some of those photographs. She was not persuaded warning signs or more supervision were relevant issues, or that the absence of them was causative or constituted negligence. Nor, despite some photographs of a system at one of the defendant’s refuse tips where material is placed on a conveyor belt and then taken away to be deposited in a bin some distance from those leaving refuse, did she think a conveyor belt was a safe or sensible alternative. She was, however, persuaded that the hole was inherently dangerous, and the defendant’s failure to fence it off constituted negligence. She said[3]:
“The next part I get to is part A; failure to fence off the garbage bin so as to minimise the risk of persons such as the plaintiff from falling into the garbage bin. I have seen the photographs. They show that there is not a very high lip of concrete that slides down into the bin. As I said, if there had been some green material left there and Mr Stocks had slipped on it, then that would have been clear evidence of negligence. The Council, if it is going to operate such a system has to make sure that it is safe.
The Council pleads to this ‘There was an elevated concrete wall around the garbage bin area so as to prevent persons from falling into the garbage bin. However, in this instance the plaintiff fell from the back of his utility into the garbage bin and hence the concrete wall failed to prevent his fall; as the concrete wall was constructed by the defendant to prevent persons from falling into the bin from the area surrounding the bin, and not from the backs of utilities.’ I think that is nonsense. I think it is nonsense because one looks at the photograph; there is no way that that tiny little raised bit of concrete could stop anyone from falling into the bin.
Now, as I say, the case is made difficult because the plaintiff did not call an expert. I do not know what the Council could have done. I do not know how high the fence should have been. I do not know if the Council should have just simply put a pole in between, delineating each car parker. For example, on the photos, I see that there are red and white poles on the corners. If there was one of those poles on each of the corners of the tip pole, plus one half way along the edge where the people are dumping rubbish, maybe that would be sufficient to prevent people from falling off. Perhaps the height needs to be higher. I do not know how high it would have been.
I find that I am satisfied on the balance of probabilities that there was no adequate fence around that garbage bin which was a submerged bin. I find that the small wall that was there was not designed to prevent people from falling into the bin. It seems to be designed pretty effectively to get the garbage to fall into the hole; that is what it seems to be its main purpose, but certainly it does not seem to be constructed in such a way as to prevent people from falling in there. Perhaps the sides of that bin need to be as high as the back of the tray of a utility. Perhaps they need to be higher, perhaps there needs to be some posts along the way. I do not know this.
But I find I am satisfied on the balance of probabilities that the plaintiff has satisfied me that the negligence of the defendant was in its failure to fence off the garbage bin so as to minimise the risk of persons such as the plaintiff from falling into the garbage bin.” (Emphasis added).
- [5]Save for his own evidence about his accident, the plaintiff also presented the photographs mentioned earlier showing this refuse bin in a state like that which he says confronted him on the day of his accident; another photograph showing the aluminium sides of the bin raised up above ground level; another at Mudgeeraba tip showing persons depositing rubbish were confronted by a slightly higher border around the tip (up to about mid-thigh height, in Exhibit 2, photograph 7); and, a photograph of the system at Merrimac tip where, the plaintiff said, rubbish was deposited across a low wall onto a conveyor belt and then taken away to a bin. The Magistrate said that the photograph showing the raised sides to the bin, i.e. its “flaps”, did not indicate a better system and that, in fact, those flaps were only raised when a particular bin or hole was not in use; and, would be lowered on a bin in use. Her findings about the conveyor belt[4] were also unfavourable to the plaintiff. She said:
“I do not know where Mr Stocks gets this idea that a conveyor belt is somehow safer; and I am not satisfied it is. A conveyor belt is pretty dangerous. You have to have a lot of safety mechanisms in place. People can get dragged along the conveyor belt and pushed down chutes and I would have thought a council installing a conveyor belt would have to have very sophisticated engineering advice about that.”
- [6]The nub of the appellant’s argument was that the defendant’s alleged negligence – the failure to provide a fence – had not been shown to be causative of the plaintiff’s accident, and injuries. In other words, the Magistrate could not, on the evidence, have been satisfied that the lack of a fence was causative of the plaintiff’s fall. The appellant’s Outline advanced the argument in this manner:
“The point which is relevant is there was no evidence as to what system should have been implemented and evidence as to the cost, and appropriateness of any such system and the practicality of any system and therefore it could not be said that the accident could have been avoided if a fence had been so constructed. The point is one of causation. The Magistrate could not be satisfied as to what type of fence and how high it could have been, to avoid the fall, therefore it could not be said that the failure to implement any such system i.e. being the failure to put in a fence was causative of the incident.”
- [7]There is no dispute about the respondent’s right to visit and use the refuse station. He was, then, a lawful entrant, and the circumstances of his entry upon the appellant’s land established a relationship between them which, of itself, sufficed to give rise to a duty on the appellant’s part to take reasonable care to avoid a foreseeable risk of injury to him[5].
- [8]The photographs, Exhibit 2, show that visitors to the refuse station were required to deposit rubbish into large bins below ground level. The mere existence of the pit, and the inevitable proximity of visitors to the edge of it gives rise to an obvious, foreseeable risk of injury[6]. This raises the issues discussed by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47:
“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience as taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed for the reasonable man placed in the defendant’s position.”
- [9]More recently, in Woods v Multi-Sport Holdings Pty Ltd (2002) 76 ALJR 483 Gleeson CJ suggested the question is: what would a reasonable person, in the position of the respondent, do by way of response to the risk of injury to people using the premises? In that case Hayne JA explained the standard of care required of occupiers, at 506:
“Although conventionally described as a finding of fact, to make a finding that there has, or has not, been a failure to meet a standard of reasonable care requires the tribunal … to translate the relevant legal principle (that the defendant is obliged to take such care as the reasonable and prudent person would take in the circumstances) into what Fleming described as ‘a concrete standard applicable to the particular case’ and as a process which ‘involves not a determination of fact, but the formulation of a valued judgment or norm’. In undertaking that task the tribunal of fact must first consider whether the reasonable person would have foreseen that his or her conduct involved the risk of injury to the plaintiff or to a class of persons including the plaintiff. The risk is foreseeable if not far-fetched or fanciful. The tribunal of fact must then decide what the reasonable person would do in response to that risk. This latter decision requires attention to various considerations, very important among these being the magnitude of the risk of injury, the probability of its occurrence, the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities the defendant may have. Some of these considerations (and there may be others presented by the facts of a particular case) pull in different directions. Taking them all into account requires the striking of a balance.”
- [10]Some matters obvious from the plaintiff’s evidence, and the photographs, and matters of common knowledge, suggest this system for depositing rubbish involved a clear risk of injury to a class of persons which included the plaintiff. The system is one which, almost inevitably, will result in users taking their vehicles close to the edge of the pit. They will, then, unload items of refuse of varying weight and size and carry them to the pit and drop them in, or push or pull or tip them with that aim in mind. It is perfectly foreseeable they may attempt to move and deposit objects which are awkward, or cumbersome. In those circumstances, the risk of a fall into the pit is readily foreseeable, and clearly not far-fetched or fanciful. There is, with reference to the tests discussed above, a risk of injury which is far from improbable, and of obvious magnitude.
- [11]Although the Magistrate made no specific finding about the defendant’s obligation, if any, to guard against mishaps of the kind suffered by this plaintiff, it would also have been reasonable for her to conclude that, where visitors are performing operations of the kind described above, the occurrence of an accident of the kind the plaintiff suffered when he lost his balance is, also, readily foreseeable. Unloading, moving, and throwing or tipping objects of refuse of various kinds and sizes are exercises which, again, common experience suggests not infrequently give rise to events like that which befell this plaintiff.
- [12]In light of all these matters it is not surprising the Magistrate concluded that these risks, with their obvious degree of probability, gave rise to an need for alleviating action on the Council’s part and that a fence would, by inference from her reasons, constitute a proper safety measure which did not involve excessive or inappropriate expense, difficulty or inconvenience. An obvious problem arose for her however because she had no evidence suggesting how high an appropriate barrier ought to be (and, obviously, any barrier had to strike an appropriate balance between providing improved safety for users, but not preventing them depositing rubbish altogether or making that task inappropriately difficult or, even, dangerous). She could not know, on the evidence as it stood, how high a fence must be which would prevent a person from falling in, but still allow refuse to be deposited safely, and efficiently. On the evidence which she accepted, he had suddenly lost his balance, and fallen sideways. It is that circumstance upon which the appellant seizes for its submission that she could not, on the evidence, reasonably conclude that the absence of a fence was causative of the plaintiff’s injury.
- [13]I was pressed, by the appellant, with a large number of cases of the “slip and fall” kind, and cases involving local authorities, in support of the argument that a heavy onus rested upon the plaintiff, in cases like this, to show as a necessary prerequisite to success in the action that the existence of a proper system, or safeguard, would have avoided the injury. The slip and fall cases include Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241; Griffin v Coles Myer Ltd [1992] 2 Qd R 478; Taber v NSW Land and Housing Corporation (2001) NSWCA 182; Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305; Sopher v Gold Coast City Council (2002) QCA 118; Treloar v Dache-Haven Pty Ltd (2001) QDC 044; Kocis v S E Dickens Pty Ltd (1996) BC 9601051; Wilkinson v Law Courts Limited (2001) NSWCA 196; and, Gondoline Pty Ltd v Hansford (2002) WASCA 214. Cases involving duty of care owed by local authorities, and the like in respect of their facilities, and public spaces, included State of New South Wales v Steed (2001) NSWCA 178; Lanyon v Noosa District Junior Rugby League Football Club Inc (2002) QCA 163; Lombardi v Holroyd City Council (2002) NSWCA 252; Spencer v Council of the City of Maryborough (2002) QCA 250; and, Miller v Livingstone Shire Council (2002) QSC 180. Those involving slips and falls on objects dropped onto the floors of supermarkets, etc. clearly show that, in such cases, a plaintiff is likely to fail unless it can be shown the defendant’s system for monitoring, and removing those things was adequate, in terms of the risk involved. The cases involving falls on footpaths, in other public places, or on steps or ramps or floors often show an obligation, on the plaintiff’s part, to prove that through such things as poor original design, a history of previous accidents or complaints or deterioration there was a danger which called for an appropriate pre-accident response from the defendant: Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 180 ALR 145, per Kirby J at 212-3.
- [14]What those cases also show is that the balancing exercise will vary with circumstances and, when injury occurs in a situation commonly encountered – irregularities in public footpaths, and the like – economic questions, as much as anything else, affect both the measure of the defendant’s proper response, and the lengths to which a plaintiff must go to show the response is inadequate. In Spencer v Council of the City of Maryborough the plaintiff fell over on a footpath in one of Maryborough’s main streets. The trial Judge found that at the place she tripped there was a slight difference in height, or a lip between two adjacent concrete slabs and the Council should have had a system of inspection, and repair in place to alleviate the risk those differences created. On appeal, however, McMurdo P and Holmes J (Jerrard JA dissenting) held the plaintiff had failed to establish just what system of inspection would have been appropriate and, therefore, how the absence of a system was causative of the plaintiff’s injuries. Holmes J said:
“[35]And what is, with respect, lacking in the learned trial Judge’s reasons, is any detail of what the system of inspection required of the Council to meet its duty of care was. It is one thing to assert that the defendant ought to have had an ‘effective and appropriate risk assessment program’ in place. It is quite another to identify what form such a program should have taken; and more, what form it would have had to take in order to prevent the respondent’s injury. Without such identification, it was impossible to say that the failure to implement it was causative of the plaintiff’s injury. One might say that by failing to have a regular system of inspection – for example, annually – as opposed to reliance upon a system of response to complaints, the Council was in breach of its duty of care to pedestrians using its footpath. But it does not follow, and the evidence is not sufficient to support a conclusion, that such a system of inspection would have prevented existence of the defect in this case.”
- [15]A similar conclusion was reached by Dutney J in Miller v Livingstone Shire Council (supra) where the plaintiff had fallen from a roadway, over a fence and into a culvert, and suffered very bad injuries. There were no witnesses, and a fence beside the roadway above the culvert had originally complied with appropriate design standards but, because of the build-up of the footpath over the years, was inadequate by the time of the plaintiff’s accident to provide a reasonable barrier to protect persons from this fall. Dutney J concluded that it was reasonably foreseeable that if a vertical drop to a concrete culvert is created on a busy walkway someone might fall over it and injure themselves unless an adequate fence is constructed; but, in the absence of any evidence as to just how the plaintiff came to fall, he was not persuaded some cause or connection between the inadequate fence, and injury, was established:
“[21]In all the circumstances I am not satisfied that the plaintiff has discharged the onus of establishing that the hypothesis relied on by him either occurred or is more probable than any other inference that may be drawn from the evidence. It is not inevitable that the fence which I found by the time of the accident to be inadequate and substantially below both the design height and the height specified by the only objective standard available was causative of the injury.”
- [16]While the hypothesis to which Dutney J was referring concerned the central issue whether the plaintiff, in the case before him, had actually fallen over the fence or, rather, at some other place, these cases illustrate the proposition that the mere existence of a potential danger on an occupier’s property is not the only thing an injured entrant must prove; and, to establish causation, a plaintiff must be able to show some link between his injury and those steps the defendant might have taken which, the plaintiff asserts, would have provided a satisfactory remedy and prevented that injury.
- [17]After the hearing of the appeal I received, from the respondent plaintiff’s counsel, copies of the judgments in Betts v Whittingslowe (1946) 71 CLR 637, Bennett v Minister of Community Welfare (1992) 176 CLR, and Chappell v Hart (1998) 195 CLR 232, in which certain passages had been marked with the intention of illustrating the proposition that, as Gaudron J said in Bennett’s case, at 420-421:
“Although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.”
Betts’s case involved a clear breach of a statutory to fence machinery and is authority for the proposition that, not surprisingly in those cases, an obvious breach may shift the onus of proof to the employer to show that it was not causative. Bennett and Chappell concerned difficult questions of causation but nothing in the judgments in them, or the passage cited above seems to me to detract from the principle that a plaintiff who asserts a particular breach was causative of his injury retains an onus to establish, with reasonable precision that an efficacious remedy was available and would have prevented his injury.
- [18]It would place an almost intolerable burden upon plaintiffs claiming damages for personal injuries in these circumstances, particularly in the lower Courts if expert evidence was, in effect, mandatory to discharge this onus. I do not think, however, that an expert was necessary here. The plaintiff need simply have given evidence about the height of a fence which would have prevented his fall and the Magistrate could have decided, by performing the balancing exercise, whether that was an appropriate, and satisfactory response to the risk. It must be suspected his failure to do so arose because he simply could not say; or, that a fence of sufficient height to prevent his fall would, necessarily, have been too great an impediment to practical use of the pit. The absence of any evidence about those matters left the Magistrate, however, in the same dilemma as that which confronted the Courts in the cases just discussed: i.e. she could not, on the evidence before her, conclude the absence of a fence was causative of the injury because she could not know whether or not it would have prevented a fall of the kind the plaintiff suffered.
- [19]I am persuaded that, while the onus upon the plaintiff was not, necessarily, to call evidence from experts showing just what kind of fence and at what height it should have been constructed by, for example, reference to Australian Standards, it nevertheless behoved him to show that a fence, of a practicable height for the purpose of users of the rubbish tip, would have prevented his fall. He spoke of reaching out to grab something[7] but it is not at all clear whether the position of his body, or hands at the time meant that a fence or a railing would have been available, or useful to him. The most likely explanation is that the circumstances of his fall prohibited him from giving meaningful evidence about these matters: i.e., it simply occurred too quickly. In these circumstances I am obliged to consider the question of causation by reference to probabilities and, in particular, the question whether the plaintiff has shown that it is more probable than not that his injury was caused by the defendant’s breach of duty, i.e. by failure to provide a fence: Kocis v S E Dickens Pty Ltd (supra) per Hayne JA at 12.
- [20]There is no uncertainty about how this plaintiff came to fall. The critical question is, then, whether the necessary causal link is established between the absence of a fence, and his injury. On the evidence before the Magistrate that question could not be safely answered in the affirmative; i.e., the plaintiff had not proved it was more probable than not that his injury was caused by the absence of an appropriate barrier. For these reasons, the appeal should be upheld.
- [21]For the sake of completeness, it should also be said that while I am not persuaded the Magistrate’s finding about an alternate system, using a conveyor belt, necessarily extinguished that as an arguable head of negligence, the plaintiff would nevertheless confront the sorts of difficulties which arose in Lanyon v Noosa District Junior Rugby League Football Club Inc (supra), and Percy v Noosa Shire Council (2002) QCA 245 including, in particular, economic considerations (Percy v Noosa Shire Council per White J at paras 16 & 17). The plaintiff failed to establish the use of conveyor belts was, necessarily, a safer and better system but even if the Magistrate was wrong in the conclusion she reached about that matter, it is difficult to see how the plaintiff could have succeeded on it in the absence of evidence touching such matters as the occurrence, if any, of falls by users of refuse tips, the efficacy and safety of the conveyor belt system, and its cost.
- [22]It is also appropriate, for the sake of completeness, to deal with the cross-appeal. The respondent plaintiff, as cross-appellant, asserts that the Magistrate’s findings of fact used by her as a basis to determine contributory negligence in the order of 40 per cent were not available on the evidence. The Magistrate found[8] that the plaintiff adopted a system of removing the rubbish which was “totally dangerous and unsafe”. He performed the task on his own, without someone else to help him; he used plastic that was inadequate and tore, bearing in mind the heavy load of grass; and, failed to use a safer system, e.g. by taking a rake, climbing into the utility, and pushing the grass clippings out. The plaintiff’s contention is that none of these matters were ever put to him so that he never had the opportunity to explain why, for example, any of them might not have told against him. Contributory negligence was, however, specifically pleaded, and supported by allegations that the plaintiff failed to take care for his own safety, keep a proper lookout, or watch where he was walking or standing. It does not appear, from the Magistrates Court file, that any particulars were ever sought. While it is true the plaintiff was not cross-examined about the matters which gave rise to the Magistrate’s findings, no evidence was adduced from the plaintiff, in evidence-in-chief, about the system he chose to adopt or the existence of any alternatives; and, on the system he did describe it was, I think, an inference reasonably open to the Magistrate that the plastic tore because it was inadequate when compared to the load of grass. There was no evidence the plaintiff had tested its adequacy before adopting a system wherein he simply pulled at it while standing in close proximity to what was, for reasons given earlier, an obvious danger which must have been abundantly apparent to him. While the finding of contribution is, at 40 per cent, quite high it is tolerably clear that the Magistrate was persuaded the system he chose to adopt was quite unsafe in the face of those risks, as I think she was entitled to do. I am not persuaded the finding is wrong, or warrants interference.
- [23]I will hear submissions about costs.