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Schmidt v S J Sanders Pty Ltd[2012] QDC 148

Schmidt v S J Sanders Pty Ltd[2012] QDC 148

DISTRICT COURT OF QUEENSLAND

CITATION:

Schmidt v S J Sanders Pty Ltd [2012] QDC 148

PARTIES:

HEINZ JOHANN SCHMIDT

(Plaintiff)

AND

S J SANDERS PTY LTD (ACN 074 002 163)

(Defendant)

FILE NO/S:

2802 of 2010

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

22 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17 and 18 April 2012

JUDGE:

Irwin DCJ

ORDER:

  1. The defendant is to pay to the plaintiff the sum of $225,000 clear of the WorkCover Queensland refund as damages for personal injuries and consequential loss arising as a result of the negligence of the defendant by it servants or agents.
  2. I will hear from the parties if necessary in respect of interest and costs.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – Where the plaintiff was employed by defendant as a truck driver – where the plaintiff was injured when he fell while attempting to alight from the cabin of a truck during wet weather – whether the plaintiff had proved the means by which he slipped and fell to the ground – whether the defendant had breached its duty of care to the plaintiff – whether the risk of injury to the defendant was foreseeable – whether there was a failure to provide a safe system of work – whether the defendant’s breach caused the injury to the plaintiff.

Workplace Health and Safety Act 1995 (Qld), s 28(1).

Bourk v Power Serve Pty Ltd & Ors [2008] QSC 29, applied.

Bus v Sydney City Council (1989) 167 CLR 78, applied.

Carlile v Hegedus & Ors [2003] QSC 323, applied.

Davie v New Merton Boards Mill Ltd [1959] AC 604, distinguished.

Dibb Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 2010, cited.

Donoghue v Stevenson (1932) AC 562, cited/

Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125, cited.

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited.

Lusk & Anor v Sapwell [2011] QCA 59. applied.

McLean v Tedman (1984) 155 CLR 306, applied.

McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423, applied.

Miller v Council of the Shire of Livingstone & Anor [2003] QCA 29, cited.

Nagle v Rottnest Island Authority (1993) 177 CLR 423, cited.

O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, applied.

Reck v Queensland Rail [2005] QCA 228, applied.

Vairy v Wyong Shire Council (2005) 223 CLR 422, applied.

Wakelin v London and South-Western Railway Co (1886) 12 App Cas 41 at 47, cited.

Webb v The State of South Australia (1982) 56 ALJR 912, cited.

Williams v Mount Isa Mines Limited [2000] QSC 161, distinguished.

Williams v Mount Isa Mines Limited [2001] QCA 101, distinguished.

Wyong v Shirt (1980) 146 CLR 40, applied.

COUNSEL:

J.P. Kimmins for the Plaintiff

G.C. O'Driscoll for the Defendant

SOLICITORS:

Shine Lawyers for the Plaintiff

MVM Legal for the Defendant

The plaintiff’s claim and the background to it

  1. [1]
    The plaintiff was employed by the defendant as a truck driver and was injured at approximately 3.00 am on 15 January 2008 when he fell while attempting to alight from the cabin of a Volvo FM prime mover which he had driven in the course of his employment to a location on the Bruce Highway at Gunalda. As a result, he suffered head injuries, chronic musculo-ligamentous injuries to his cervical and lumbar spine, headaches and psychiatric injuries.
  1. [2]
    He instituted an action against the defendant, alleging that his injuries were caused by the negligence, and/or breach of contract of the defendant by its servants and agents. His damages have been agreed in the sum of $225,000 clear of the WorkCover Queensland refund. However, liability remains in dispute. No contributory negligence has been pleaded in defence. 

Notice of Claim

  1. [3]
    The 4 May 2010 notice of claim provides the following description of events:[1]

“Heinz had been working long hours and was in the process of completing a 14 hour shift at the time of the incident. On 15 January 2008 at about 6:00pm Heinz left Brisbane and drove a Volvo BDouble truck to Gladstone. Heinz was given a 30 minute changeover period and then he got back in his trick and proceeded to drive back to Brisbane. Once on the road Heinz has a 30 minute break then a 6 hour trip back to Brisbane. It was raining very heavily that night on the trip to Gladstone and back.

Heinz had driven from Gladstone and down to Gunelda (sic) (just past Gympie). The rain was still very heavy and Heinz was travelling at an appropriate speed under the limit of 100km/hr.

Heinz recalls the alarms in the dashboard and the light started flashing, the light signal was ‘stop unit shutdown’. Heinz immediately looked for somewhere to get the vehicle off the roadway and put the trucks flashing lights on. Heinz recognised from the dashboard that the alarm was referring to a loss of air associated with the brakes.

Heinz rang his boss Steve Sanders who is based in Rockhampton. Steve queried Heinz about whether the loss of air was in the trailer or the truck. Steve told Heinz to turn the air off to the trailers and start again. Heinz did as Steve instructed and it was discovered that the problem was in the prime mover. Steve Sanders rang a Volvo mechanic in Gympie to come out and fix it.

Heinz went in and out of the truck, approximately 3 times, to check the air lines. It was on the third time that Heinz had a fall.

Heinz recalls opening the door and then grabbing the handle beside the wheel with his right hand. The next step was that Heinz had to move out of the seat and to place his right foot onto the top step and whilst doing this Heinz had to twist his body so that his back is facing away from the truck.  There is another handle on the lower part of the seat which Heinz is able to grab with his left hand whilst doing this. It is very difficult for Heinz to reach the first step because it is under the floor of the cabin and does not extend out plus it is situated close to the front of the truck. As Heinz was attempting this manoeuvre his foot slipped and he has fallen and landed on the roadway.  Heinz was on his stomach. Heinz grabbed his phone and put it in his pocket.

Heinz was trying to manoeuvre himself to get closer to the truck as he was in the middle of the roadway and could have been run over by oncoming traffic.” (emphasis added)

InterSafe report – 23 July 2010

  1. [4]
    In an expert report of 23 July 2010 by Mr Dargusch of the InterSafe Group[2] reference is made to an interview with the plaintiff in which he verified this description of the incident. Mr Dargusch reports that the plaintiff:[3]

“…recalls placing his right foot onto the top step while remaining partially seated in order to begin descent of the access system. … At some point following this, Mr Schmidt recalls his right foot slipping and/or losing his balance. After this, he only recalls ‘coming to’ lying on the roadway.” (emphasis added)

  1. [5]
    Mr Dargusch said that when he was preparing this report he understood the purpose of critically recording any instruction the plaintiff gave him in relation to how the incident and the injury occurred. He testified this is what he did in this particular case and he recorded everything the plaintiff told him about how the incident occurred. Mr Dargusch also confirmed that the plaintiff told him that he had no memory after his foot slipping.[4]
  1. [6]
    The plaintiff said that when he spoke to Mr Dargusch he was doing his best to be truthful and accurate to the best of his recollection about what occurred.[5]  However, when he was referred in cross-examination to the description of the incident reported by Mr Dargusch, as set out in [4] above, he responded that this was not really what he had told Mr Dargusch.[6]  The plaintiff said:[7]

“Well, I told him how I usually got out of the truck and that involves shifting my foot, twisting my foot.”

Further the plaintiff did not really think he had been knocked out. This appears from the following exchange in cross-examination:[8]

“You thought you were knocked out?--  Well, no, not really because everything was still in time. I mean, my phone was just lying there, the time was there. I had a premonition that I – you know, that I thought I might have been out for a couple of minutes, but the – I don’t know. The ambulance bloke reckons I probably wasn’t.”

  1. [7]
    It is relevant that the description of the incident reported by Mr Dargusch, as set out in [4] above also refers the reader to Section 3 of the report “for a full description of the method”. Section 3, with the assistance of contemporaneous photographs, describes the plaintiff’s demonstration of the method he always employed to exit the vehicle, and that he employed “at the time of the incident”. The description is as follows:[9]

“a.See Figure 5.

i. Mr Schmidt would lean outwards on the seat and extend his right foot outwards and down onto the top tread.

  1. While doing so, he would grasp the handle at the right of the door opening with his right hand, and possibly grasp the steering wheel with his left hand.
  1. Mr Schmidt would not pivot his body before stepping onto the top step.
  1. See Figure 6.

i. His body would move outwards and begin to pivot so that he was facing into the truck.

  1. As this was occurring, his left arm would reach backwards and behind his body toward the handle on the left of the door, and his left foot would begin to move outwards.
  1. See Figure 7.

i. Once facing into the truck, he would then grasp the handle on the left side of the door with his left hand, and maintain his grasp of the handle on the right side of the door with his right hand.” (emphasis added)

The description continues with how the plaintiff next moved his left foot onto the second tread, followed by his right foot, while still maintaining a grasp on both handles; then describes his descent to the third tread; and then stepping onto the ground. The Figures are the photographs. Figure 6 shows the plaintiff’s right foot pivoting on the top tread as the descent begins. I note that the demonstration used a different Volvo prime mover with similar truck access system steps. The primary difference was the vertical height between the steps (due to a higher cab height).[10]  The plaintiff was also wearing different shoes to those worn at the time of the incident.[11]

Admissions

  1. [8]
    The defendant admitted the following allegations contained in the amended Statement of Claim:[12]

“5. On or about 16 15 January 2008 at approximately 3:00am:

  1. (a)
    the plaintiff, in the course of his employment with the defendant, whilst travelling on the Bruce Highway at Gunalda in the State of Queensland, noticed that the warning lights, on the dashboard of the Volvo BDouble which he was driving, relating to the air brakes started flashing;
  1. (b)
    the plaintiff was in the process of completing a 14 hour shift and he had completed approximately 9 hours of the shift;
  1. (c)
    throughout the night it had been raining heavily where the plaintiff had been travelling and in a lot of places throughout the south eastern coast of Queensland;
  1. (d)
    the plaintiff stopped the vehicle on the side of the road and telephoned Steve Sanders, who was a servant or agent of the defendant;
  1. (e)
    Mr Sanders instructed the plaintiff to perform a number of tests on the vehicle to identify where the problem was and this involved the plaintiff getting in and out of the vehicle’s cab a number of times;
  1. (f)
    on the third time that the plaintiff exited the vehicle’s cab to carry out the aforesaid tests the plaintiff:

i.took hold of the handle beside the wheel with his right hand;

ii.moved out of the seat and placed his right foot onto the top step and whilst doing this had to twist his body so that his back was facing away from the truck;

iii.his right foot was partially overhanging the top step;

iv.he then took hold of another handle with his left hand on the lower part of the seat;

v.the first step was under the floor of the truck’s cab, and did not extend out and was very close to the front of the truck;

vi.as the plaintiff was making the manoeuvres described above his foot slipped on the edge of the first step and the plaintiff fell to the ground (‘the incident’);

  1. (g)
    the first step of the vehicle was made from aluminium and had a rounded front edge;

….

  1. (i)
    the edge of the first step of the vehicle was wet from the rain and from the plaintiff getting in and out of the truck’s cab on the 2 previous occasions.” (emphasis added)
  1. [9]
    Paragraph 5(h) was not admitted. It was in the following terms:

“the edge of the first step of the vehicle was slippery and was not slip resistant;”

 The basis of the denial was:[13]

“The Defendant denies the allegations in paragraph5(h) of the Amended Statement of Claim as they are untrue, as the step was slip-resistant as designed and constructed by the manufacturer, Volvo, and not altered in any way by the employer, and was thus not slippery. Further, the Plaintiff had used the same step at least two times prior to the event described in the pleadings on the night in question, and on many previous occasions in the two and a half months that the plaintiff was driving the said vehicle.”

The Plaintiff’s evidence

  1. [10]
    The plaintiff, who was 60 years of age at the time of the incident, gave evidence to the following effect. He commenced driving as an occupation in 1995, first as a coach driver. In 1997 he purchased trucks and ran his own trucking company. His employment with the defendant commenced in October 2007. This was the first time he had driven Volvo vehicles. He usually drove the same truck but had never previously driven a vehicle with the step configuration of the Volvo.[14]
  1. [11]
    He never received any instruction in relation to getting out of these vehicles during his employment with the defendant. His evidence-in-chief included:[15]

“…Now when you started working with the defendant did you experience any difficulties with getting out of the vehicle?--  Just that every man has his own way of getting out of them because of the room that was involved. I was a little bit more weighty, so yes, I did have a little bit.” (emphasis added)

He described his particular method of getting out the vehicle during the course of his employment with the defendant. This is the method he demonstrated to Mr Dargusch and is documented in the 23 July 2010 report. His evidence was that this was the method he used all the time at the depot. Although he did not know if his supervisor was present. One of his supervisors had instructed about the configuration of the dashboard only.

  1. [12]
    His evidence was that on 14 January 2008 he drove the Volvo B Double truck carting general freight from Brisbane to Gladstone, departing at about 6.00pm and arriving at about midnight. He had about half an hour break at Gin Gin and a similar period to changeover in Gladstone. There was then a 15 minute break at Gin Gin before proceeding towards Gunalda. It was raining very heavily on the trip from Gladstone. He stopped the vehicle at Gunalda because of the concern about low air.
  1. [13]
    The plaintiff said that following this he exited the vehicle on three occasions before the incident the subject of the claim occurred. On the first occasion he could not hear any air. He then returned to the cabin and reported this by phone to Steven Sanders, a director of the defendant. At Mr Sanders’ request, he exited the vehicle for the second time to turn the tap off in order to determine where the origin of the leak was. On returning to the vehicle, he again phoned Mr Sanders and advised that the leak must be in the prime mover. Mr Sanders said it was necessary to get a mechanic out. After this he exited the cabin for the third time to turn the taps back on. His evidence was that it was still pouring and the wind was driving the rain straight into the cabin when he opened the door to get in and out.
  1. [14]
    He said that the incident occurred when he decided to get out of the vehicle on a fourth occasion to place safety reflective triangles behind it. His evidence-in-chief was that prior to getting out, he pushed a foot pedal to put the wheel up because this made it easier to get in and out.[16]  He opened the door and grabbed the right handle up the top with his right hand and grabbed the steering wheel with his left hand.[17]  He put his right foot on the top step. His evidence then continued as follows:[18]

“Which step?--  The top step and then I just sort of fell forward and was sort of there, just there, and I stood up and swivelled to go around with my hand and I just lost my balance and just slipped off. The foot just slipped straight off the step. I tried to grab the door handle because that was the next thing you could grab. If I had got to that I would probably have saved a lot of it, but, no, it just – just was that wet it was so slippery it just completely lost it.

Okay. Now, when you put your right foot on the top step was it as you’ve indicated your normal method was?--  That’s correct.

…

MR KIMMINS:  Sorry. Could you just describe when you placed your right foot on the top step what part of the top step was your foot on?--  The very edge.

Okay?--  The very edge.

When your foot slipped from the step, what part of the step was your foot on?--  Very edge.

Now, did your left hand actually get to that handle on the left-----?--  I just – just hit it on the left. I just turned around, just hit it. That was when I slipped and then I tried to grab the door handle because that was the next thing that I had to grab.

You then fell to the roadway; is that correct?--  I fell on the roadway.

HIS HONOUR:  So you’re saying you never actually got a grip on the left-hand handle, is that what you’re saying?--  No, I just touched it like that, your Honour.

So you’re indicating with your open left hand?--  Yes.

You’re indicating-----?--  the hand was open, it would have closed as soon as I got to it, but I just touched it and I lost my balance.

All right. Well, just so we have got it on the record in case somebody needs to read what’s been said at some stage, you touched the left hand handle with the palm of your left hand, but never completed the grip around the handle?--  That’s right.

…

MR KIMMINS:  Mr Schmidt, just at the time when your right foot slipped, can you just describe what motion your right foot was adopting?--  Well, my right foot, as you can see, the heel is just – just over the edge.

Don’t worry about the photograph?--  I have to get it off and turn it inwards so I’ve got proper gripping. So I was actually twisting my right foot.

That’s bringing your toes in towards the vehicle?--  yes, so I was twisting to the left inward.” (emphasis added)

  1. [15]
    In cross-examination the plaintiff said there was one light in the door which came on when the door was opened. However, he said the edge of the step did not come out far enough to see from where he sat behind the wheel. He accepted he had driven everyday for the defendant for at least two months and had been doing this particular manoeuvre at least twice a day over this period. He also accepted that he had never previously had any difficulty in finding where the first step was. His evidence confirmed that he would move to the right and position himself on the seat to make it easier for him to put his right foot down. He accepted he did not blindly dangle his right foot out of the cabin hoping to find the step in the dark. The plaintiff said he was about 90 kilos at the time.[19] The care that he took in doing this was described in the following cross-examination:[20]

“And being a truck driver yourself, you know of the dangers of slipping on a step?--  Yes.

That’s why you take the care?--  That’s right.”

  1. [16]
    Although the plaintiff accepted that when the door is closed the top two steps are shielded from the weather, he said the steps had got wet when he first came out. He also said the more time spent in getting out the more water comes into the cabin. The plaintiff was also conscious that his shoes were wet. In this context he explained what happened as follows:[21]

“Because on one occasion you didn’t take enough care in getting out?--  I always took enough care. I always take the same care.

But on the evening in question when it had been raining you had been in and out of this truck safely five, six times without difficulty?--  About that, yeah.

But this last time you didn’t do it safely and your foot slipped and you fell out of the truck?--  That’s because all that water was in there.

You were aware that the water was there?--  Yes.

What was the extra feature about the water that made things difficult?--  Nothing until I slipped.

But you’d exited-----?--  When I twisted my foot I lost all, all grip on that step.

But when did you twist your feet?--  When I went – when I went from the wheel with my hand to grab the other handle behind me, right, at the same time you twist your foot to get more hold and it just came straight off.

And is the twisting of the foot language that you used?  Twist or pivot, how could you describe what you did?--  Yeah, twist, pivot, call it what you like.”  (emphasis added)

  1. [17]
    This issue was further investigated during the following cross-examination; commencing with reference to the outer edge of the top step:[22]

“Now, that nonslip outer edge worked on the occasions that you got out of the truck on that evening, didn’t they?--  For the first couple of occasions, yes.

They had worked for the two and a half months or so you had been driving that particular truck?--  In the dry – in the dry, yes.

You had never driven a Volvo truck in wet wether before?--  I don’t know. It’s rained – it rained for quite a while then, so it – I might have done so, but that night when I did it I just came out just normal and I slipped and I tried to save myself with the door handle and that’s all that happened. I don’t know why I slipped.

You don’t know why you slipped?--  Well, I twisted my foot and grabbed the other handle and that’s when I lost it.

You’ve never said before, Mr Schmidt, that you twisted your foot. That’s a reconstruction on your behalf?--  You asked me whether I used the work ‘twisted’ or – you asked the word – is that the term you used, ‘twisted’ or what’s the name?

HIS HONOUR:  Pivot?--  Pivot, that’s correct. I’ve said I’ve twisted my foot because that’s what I have to do.

MR O'DRISCOLL:  That’s ordinarily what you do, but you have no recollection that this – the twisting of the foot caused you to slip on the evening in question, do you?--  I do.” (emphasis added)

  1. [18]
    The plaintiff said the reason he shifted to the right partially on the seat so that he could find where the first step was, held the right hand handle inside the cabin and had his left hand on the steering wheel was because he understood in the trucking industry it was important to have three points of contact. In relation to this his evidence was:[23]

“… that’s why you were doing this on the evening in question?--  Yes. That’s why you did it all of the occasions that you got in and out of a truck?--  That’s right.”

In this context, the cross-examination continued as follows:[24]

“Okay. So the three previous occasions adopting your same method you had shifted across and were holding on to – right hand on to handle?--  Yes.

Left hand to steering wheel and at that stage you were still seated on the seat bearing some of your weight-----?--  Yes.

-----while you find with your right foot where that truck step is?--  Yes.

You don’t start to shift your weight, do you, until your right foot gets contact with that right step?--  That’s right. It’s right on the edge though.

Right on the edge. Right on the edge as shown in the photographs, I put to you?--  Yeah, but it’s dry in these photographs.

And it was wet at least on the two other occasions when you stopped on the evening in question, wasn’t it?--  Yeah.

Okay. So you got out of the truck on two occasions this evening with the steps being wet?--  Yes.”

The reference to the photographs are to those in the InterSafe report of 23 July 2010 and a further InterSafe report of 18 February 2011[25] demonstrating the method used by the plaintiff to exit the vehicle.

The plaintiff added:[26]

“the rain was that bad you’re trying to – you’re trying to hurry a little bit.” (emphasis added)

  1. [19]
    The plaintiff said the reason he shifted on the seat was to get more reach because he was short.[27]  He accepted that he had developed this technique to make it safer and easier for him. He agreed that when he placed his foot on the top step he knew he was about to twist and pivot to get out of the vehicle and it was important to get a fairly significant purchase on that step with his boot. This was because it was going to be bearing a lot of weight when he did this. The plaintiff also accepted he would ordinarily ensure that he got as much of his weight as he could on the first step. The cross-examination proceeded as follows:[28]

“And ordinarily, as shown in the photographs, that’s how much of your foot that you get on to the step, isn’t it?--  Sort of, yes.

Not sort of, you were specifically doing that for the experts, weren’t you?--  But it was wet.

I accept that it’s wet. I’m not talking about it being wet. I’m just putting to you how much of your boot is ordinarily on that first step. So forget about it being wet?--  All right.

On this evening in question your foot was on the first purchase-----?--  Yes.

-----more on the step than not?--  About halfway – half of the boot.

I put to you more than three-quarters?--  No.”  (emphasis added)

These questions were asked against the background of the answers he had given earlier in cross-examination with reference to the photo which is Figure 5 in the 23 July 2010 InterSafe report.[29]  This cross-examination was as follows:[30]

“And that’s ordinarily your initial move on to the top tread?--  That’s right.

And in relation to what’s shown you there, you’d accept that your foot is almost completely on the top step; isn’t it?--  No. Only my heel and most of the front of my foot is still off the step. My heel has got the most, the most grip on it at the moment.

So that photograph, you say, shows that most of your foot is, in fact, off the step rather than on?--  Well, at least half of it I’d say.

How about three quarters, Mr Schmidt, that’s a bit more accurate?--  Maybe.

Three quarters?--  Okay.

HIS HONOUR:  Sorry, are you putting on or off the step?

MR O'DRISCOLL:  On the step.

Three quarters of your foot is on the step?--  I wouldn’t say that. I’d say it’s less than three quarters.”  (emphasis added)

The plaintiff also said:[31]

“I had half a foot on the top of the step, I moved my body right over while I had a hand on the wheel and what’s the name. See, the seat doesn’t come down while the weight is on the seat, right? …” (emphasis added)

He accepted that at the time he put his right foot down on the top step he had four anchor points, with the other three being his hands on the handle on the right and the steering wheel, and his left foot on the cabin floor. He also accepted that he still ordinarily had four points of contact when he was pivoting and twisting.

The plaintiff subsequently accepted that on the basis of what I take to be the photograph which is Figure 13 to the 18 February 2011 InterSafe report[32] he had more than 75 percent of his foot on the step. The cross-examination then proceeded as follows:[33]

“As you twist and pivot, the majority of your foot remains on that step?--  Well, it doesn’t because you pivot on the front of your foot.

You pivot on the front of your foot?--  Yeah.

And as you turn and pivot you pivot with your heel kicking out?--  that’s right.

So as the photographs show, the front part of your foot remains on the step and you pivot out at the time this you’re holding on to then the right-hand handle in the cabin of the vehicle?--  Yeah.

And the left-hand handle?--  You’re trying, yeah, to get the left-hand handle, that’s right. Once you’ve’ got that left-hand handle you’re right, but I never got that left-hand handle that night.

Okay. You told us before that you hold on with your right hand and you hold on with the steering wheel and you’re essentially using the steering wheel?--  That’s correct, but you’ve got to let go of the steering wheel at one time or another to put that – your left hand on to that rail.

But ordinarily when you are placing your right foot on the first step you have right hand on the handle and left hand on the steering wheel?--  Yes.

And you feel now you don’t let go of the left hand until you can feel you’ve got purchase on that first step, do you?--  No, you have purchase on the first step, but when you’re putting your hand back there to get the other one, you’re also moving the left foot to get it into position to come out because when you come out you’ve got one – you can’t – the only step that you can put two feet on is the top one because as they go down they get smaller and you can’t put two feet side by side.

So you are pivoting the left foot out to put it on the top step?--  Pardon?

You’re putting the left foot out to put it on the top step?--  That’s right. It’s all one movement.

Okay. So – but when you are attempting to turn around you still have your hand on the left-hand side – the left hand on the steering wheel; don’t you?--  No, because you gotta get that on to the other handle. You can’t hold on to the wheel and still expect to grab that handle. So you virtually at one – at one small stage you end up with a two point thing and that’s got to be a balancing.

Now you slipped off the step?--  Yes.

And I put it to you, you don’t really know how you slipped off but your right foot slipped out?--  I slipped off, yes.” (emphasis added)

  1. [20]
    In re-examination, the plaintiff said that he had three points of contact but then at the time he twisted he had two points of contact.
  1. [21]
    As emerges from the cross-examination, although the plaintiff had earlier said he didn’t know why he slipped, he subsequently said when it was put to him that he didn’t know how he slipped off the step:[34]

“I just slipped off the step because it was wet.” (emphasis added)

He said:[35]

“When I was pivoting, I just lost my footing and I tried to grab the handle beside me and the handle in the door and that’s all I remember. Once I hit the door handle, I just couldn’t grab it because it was just so wet.”

  1. [22]
    It was put to the plaintiff that he never told Mr Dargusch that his ankle had turned and that is what caused him to slip. His response to this was:[36]

“Yes, I did. I said that’s how I always get out…”

When this was followed by the proposition that the plaintiff never put it in the context that turning his ankle going inverted or at an angle, is what caused him to slip, together with the proposition that he did not recollect that happening to him, he responded:[37]

“Well I do. I do, losing – I do losing my weight and when I slipped I tried to grab the door handle and after that I hit the tarmac. I don’t remember for a couple of seconds.”

  1. [23]
    It was also put to him that his evidence his foot was on the very edge of the slippery part did not occur and he had no memory of this. He denied this. Although he accepted that he knew putting his foot here would be very dangerous.
  1. [24]
    The plaintiff said he had a clear recollection and memory of all the things that were occurring that evening. He conceded he had some difficulties with his memory since the incident. He complained of this at the Gympie Hospital on the date of the incident. And he had also sought assistance in September 2011 from Adult Mental Health concerning experiencing significant memory issues. However, he said he doesn’t forget what has happened as opposed to names.

The vehicle

  1. [25]
    As indicated the Volvo prime mover which the plaintiff was attempting to exit from at the time of the incident had a cab over engine configuration. The three steps providing entry to and egress from the cabin were located immediately behind the bumper bar and in front of the front wheels. As I have also stated, when the door was closed the top two steps were shielded from the weather. In the InterSafe reports the steps are referred to as treads and the three treads are referred to as the access system. As described in the 18 February 2011 report the three treads:[38]

“appear to be made from aluminium, with a rounded front edge and an array of openings in the tread. The treads are fitted to a structure comprised of plastic mouldings or claddings.”

Dr Grigg the principal of Forensic Engineering Consulting who gave evidence for the defendant described the treads as stainless steel.[39]  A representative tread was an exhibit.[40]

  1. [26]
    The description in the 18 February 2011 report is consistent with the admitted allegations in the amended Statement of Claim at paragraphs 5(f)(v) and 5(g) which are set out in [8] above. It is noted the admission is that the first step was made from aluminium and had a rounded edge.
  1. [27]
    The 18 February 2011 InterSafe report and the 1 August 2011 Forensic Engineering Consulting report contain measurements of this vehicle. The floor of the cabin was measured to be approximately 1,585 mm above ground level.[41]  The bottom step was 535 mm above ground level.[42]  These measurements are taken from the Forensic Engineering Consulting report. They do not appear in the InterSafe report.
  1. [28]
    Only the Forensic Engineering Consulting report contains measurements in relation to the handrails inside the cabin door. These are as follows:[43]

“It can also be seen in Photo 3 that there are substantial handrails inside the door opening at both the front and rear. The bottoms of these handrails are approximately 1,740mm above ground level. The top of the rear handrail is approximately 2,250mm above ground level and that of the front handrail is approximately 2,400mm above ground level. The door opens to a position that is approximately at right angles to the side of the cabin.”

This report also makes reference to the steering wheel providing a secure handhold when moved forward by the operation of a switch.[44]

  1. [29]
    The Forensic Engineering Consulting report also measures the top step to be approximately 360 mm below the floor of the cabin.[45]  The measurement of this in the InterSafe report is 36.5 cm.[46]
  1. [30]
    According to the Forensic Engineering Consulting report other measurements taken of the access way are in close agreement with those appearing in the InterSafe report.[47]  Accordingly, the balance of the measurements referred to in this judgment are taken from this report.[48]
  1. [31]
    The spacings between the top and second treads are 35.5 cm and 33.1 cm respectively.
  1. [32]
    The top tread dimensions are 48 cm at the back and 50.5 cm along the front edge. It was 19 cm wide. The second tread dimensions are 29 cm at the back and 34 cm along the front edge. Looking towards the vehicle it was 20.8 cm wide on the left and 19.5 cm wide on the right. The bottom tread dimensions are 28 cm at the back and 33.5 cm along the front edge. Looking towards the vehicle it is 23.5 cm wide on the left and 22.3 cm long on the right.
  1. [33]
    Viewing the treads by looking down from the cabin the offset of the top step which is visible was between 0.6 cm on the left and 4.4 cm on the right. Beneath this 3.6 cm of the second tread was visible beyond the edge of the top tread. And beneath the second tread the bottom tread was visible to the extent of between 4.3 cm on the left and 4 cm on the right.
  1. [34]
    The approximate angles formed by the access system were also measured as follows:[49]
  1. (1)
    82o-89o between edge of cab opening and edge of top tread (Tread1);
  1. (2)
    82o-84o between edge of Tread 1 and edge of Tread2; and
  1. (3)
    82o-83o between edge of Tread 2 and edge of Tread3.

Therefore the effective angle of the access system for a user was in the 80o-90o range.

  1. [35]
    Measurements were also taken of the dimensions of the rectangular and round openings with raised edges in the treads as well as the radius of the treads. These will be referred to where relevant to this judgment.[50]

The InterSafe reports

  1. [36]
    Three expert reports were admitted in evidence for the plaintiff. In addition to the reports to which reference has been made, an InterSafe report of 23 March 2012 was tendered.[51]  Messrs Dargusch and McDougall were again the authors. As indicated although Mr McDougall is not stated to be an author of the 23 July 2010 report, this is an oversight only. Both authors also gave oral evidence.
  1. [37]
    Mr McDougall has a Bachelor of Mechanical Engineering degree attained from the University of Queensland in 1978.[52]  Mr Kimmins on the plaintiff’s behalf placed particular emphasis on his role as fleet manager for the Shell Oil Company of Australia Ltd where he was accountable for 130 drivers. As set out in Exhibit 9 in this position he was responsible for driver training involving rearwards access and egress techniques using 3 functional points of support. This included addressing driver resistance when exiting Mercedes Benz vehicles with forward entry cab designs because drivers wanted to get out facing forwards. These vehicles were not greatly dissimilar to Volvo vehicles. The training involved teaching the drivers to rise from the seat and turn inside the cabin so they were facing rearwards and had three points of contact.[53]  Reliance was also placed on his role with InterSafe in providing advice to various organisations as to appropriate methods to get in and out of various types of mobile machinery. This included training drivers that there are systems and procedures in place to ensure they use optimum techniques when getting out of, and on and off mobile equipment.[54]  No issue was taken with his qualifications to speak in relation to the slip resistant qualities of metal.[55]
  1. [38]
    Mr Dargusch attained a Bachelor of Mechanical Engineering degree from the University of Queensland in 1999.[56]  Mr  Kimmins particularly placed emphasis on his evidence that his predominant role with InterSafe since 2008 was consulting with employers about appropriate access/egress systems for machinery. This involved advising them as to the need and manner in which to manage the risk of injury caused by persons using access systems on trucks. Part of this risk management approach involved training drivers as to the appropriate methods to access and egress vehicles.[57]  In addition in 2000/2001 he was involved in the design and manufacture of access systems for road tanker trailers; and fuel tanks which were fitted to the side of prime movers and had aspects of access systems built into them. From 2001 to 2008 he was involved in the design and manufacture of access systems on fixed plant, in which the principles by which people moved up and down the system were the same as for mobile equipment.[58]
  1. [39]
    The InterSafe reports of 23 July 2010 and 18 February 2011, despite some of the statements made in them, are not relied upon by Mr Kimmins on the issue of the causation of the incident itself, except in relation to the issue of the slip resistant qualities of the edge of the tread. Therefore I disregard any aspect in which an attempt is made in those documents to reconstruct how the incident occurred. With reference to the issue of the slip resistant qualities of the edge of the tread, this is a relevant matter on which the experts for both parties have commented. I make this point because much of the second day of the trial was occupied with argument about the admissibility of the content of these reports.
  1. [40]
    The InterSafe report of 23 March 2012 is relied upon in relation to Recommended Practice J185 on Access Systems for Off Road Machines from the US Society of Automotive Engineers, an extract from which is Attachment F to the Forensic Engineering Consulting report of 1 August 2011.

InterSafe report – 23 July 2010

  1. [41]
    I have already referred to those aspects of the 23 July 2010 InterSafe report which narrates the plaintiff’s description of the incident and his usual method of exiting the vehicle that he also employed at the time of the incident.
  1. [42]
    Following the plaintiff’s demonstration of the method used to exit the vehicle (including at the time of the incident) he demonstrated an alternative method of exiting the cabin under the guidance of Mr Dargusch.[59]  In summary this involved him effectively turning to face into the cabin before commencing his descent while maintaining three points for support at all times.[60]  This involved pivoting the body inside the cabin prior to moving onto the access system and making a backwards descent with three functional points of control being maintained at all times.
  1. [43]
    Reference is made to a number of reports or records which demonstrate that falling while using access systems of trucks is an on-going problem.[61]  These publications commence from 1980. The most recent report referred to is from the UK Health and Safety Executive in 2006 as to “The underlying causes of falls from vehicles associated with slip and trip hazards on steps and floors.”  It noted that:

“Vehicle ingress and egress was cited as one of the four most critical accident problems for the haulage industry. Slips and falls accounted for over 27% of all cases reported which resulted in lost workdays, second highest behind motor vehicle accidents. This study also revealed that there were three times as many egress accidents as ingress accidents.”  (emphasis added)

As recognised by the Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000):

“Accessing Trucks

Getting in and out of a truck cabin, particularly larger trucks can be risky. Trips and slips can easily occur in wet weather or if hurrying.  Access to many larger vehicles requires drivers to stretch or adopt awkward postures. Unnecessary bending, twisting and reaching should be avoided as much as possible.” (emphasis added)

Main risk factors in getting in and out of trucks are identified to include:

  • Footholds and handholds may be slippery when wet or muddy due to smoothness of surfaces.
  • Hidden/recessed steps – drivers unable to see the stairway.

Similarly the information from WorkSafe Victoria (2005) on “Prevention of Falls-Trucks” recognises that:

“Even for cabins below two metres it is common for drivers to injure themselves getting in and out of the cabin.”

  1. [44]
    Reference is also made to the Department of Employment, Training and Industrial Relations, 2000, “Risk Management Advisory Standard” which could be used to identify the risk of falling when using a truck access system. This lists the required steps for effective risk management as:

“1. Identify Hazards – based on experience, recorded data, or other information.

  1.  Assess Risks – by evaluating the level of risk to workers from the hazard.
  1.  Select Control Measures – from the control hierarchy (see below).
  1.  Implement – apply the control measures in the workplace.
  1.  Monitor – review the effectiveness of the controls.”

The hierarchy of controls mentioned in step 3 above describes measures that can be taken to control an identified risk. In order of preference, these are:

“1. Eliminate the risk of hazard

Or, if this is not possible; …

  1.  Substitute a less hazardous material, process or equipment;
  1.  Isolate the hazard (not an administrative isolation);
  1.  Minimise the hazard by engineering (redesign equipment or work process);
  1. Apply administrative/procedural controls (requires a number of steps to be effective, including clear detailed procedures that are written down, training the workforce, supervision and enforcement);
  1.  Use personal protective equipment (PPE).” (emphasis added)

The standard also outlines the various hazard identification strategies which include considering:

“How people use equipment and materials;

  • How people could be hurt directly and indirectly by the various workplace aspects.”

The WorkSafe Victoria publication also requires that if there is a risk of a fall from height, a risk assessment must be undertaken of that task.

  1. [45]
    Because the effective angle of the access system for a user of the vehicle was in the 80o-90o range, this essentially vertical stairway exceeds the recommendations of general guidance documents referred to in the report. For example the Australian Standard AS 3868-1991, “Earth-Moving Machinery – Design Guide for Access” recommends avoiding the use of vertical (80o-90o) ladders. The authors of the InterSafe report state that the principles are much the same for mobile equipment, including trucks. While they accept that the access system on a truck generally always involves compromises from guidance documents to accommodate the constraints of vehicle design controlled by the manufacturer, it is said this reinforces the importance of understanding the associated risks and attempting to manage those risks. In their opinion much of the focus in management of risk should be in the “administrative/procedural” controls for the workforce who are using the system.
  1. [46]
    As this report states AS 3868-1991 recommends that in designing an access system consideration should be given to:

“Permit and encourage the user to have three functional points of support at all times, e.g. two feet and one hand, two hands and one foot.” (emphasis added)

The Shell Driver’s Handbook published in 1993 is given as a typical example of such encouragement to use the three point technique. It expressly requires the technique to be coupled with “a backward exit from the cabin”. It is said that one of the administrative controls readily accepted in the transport industry is aimed at training workers to always maintain three point support when using access systems.

More recently the Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000) provided, inter alia:

Risk factors

Safe solutions for getting in and out of trucks

Inappropriate technique

Training in correct technique for getting in and out of a cabin safely. The three-point contact technique involves contact with at least three parts of a person’s four limbs with the vehicle at any one time.

  1. [47]
    The authors of the InterSafe report express the opinion that the alternative method of descent referred to in [42] above, represents a procedural or administrative control. According to them the method used by the plaintiff at the time of the incident was not a true backwards descent and was less than optimum whereas the alternative method was a true backwards descent which would reduce the risk of falling when using the access system. They state that for any such administrative control to be effective, it is necessary to:

  • Clearly detail the access procedure for the particular piece of equipment;

  • Document the procedure;

  • Provide training in the procedure; and

  • Enforce the procedure by providing appropriate supervision.

It is their experience that provision of the information and training requires a practical demonstration.

InterSafe report – 18 February 2011

  1. [48]
    I have already referred to the description and measurements of the vehicle in the 18 February 2011 InterSafe report. This report refers to another demonstration by the plaintiff of the method used for exiting the vehicle, at the time of the incident. On this occasion the vehicle was the actual vehicle involved. This demonstrated a variability of where his right foot was placed on the tread when he leant outside the vehicle.
  1. [49]
    The opinion is expressed that the design of the access system contributes to the opportunity for line contact of the foot with the edge of the tread rather than area contact with the tread. It is said that area contact is preferable.
  1. [50]
    The report observes that the series of rectangular and round openings with raised edges in the treads have a two-fold purpose:
  1. (1)
    to provide opportunities for interlocking of the shoe with the edges; and
  1. (2)
    to allow materials such as mud, dirt and water to fall through the openings.

Reference is made to the 2006 report of the UK Health and Safety Executive which noted:[62]

“Cab steps are generally of a profiled design, which gives the possibility of a physical interlock with the cleats of the driver’s shoe. However this is very difficult to predict because the design of the cleats on shoe soles vary, in layout, dimensions and depth.”

While due to the geometry of the step of the vehicle from which the plaintiff fell, the authors of the InterSafe report were unable to measure the slip resistance of the smooth aluminium material of the step in wet conditions, they express the opinion that smooth steel or aluminium surfaces provide poor slip resistance in wet conditions as there are no textures or roughness to provide grip underfoot. InterSafe had previously measured the slip resistance (coefficient of friction) on wet unpainted steel plate using the Australian Standard for slip resistance on pedestrian surfaces at approximately 0.25. This Standard specifies a minimum slip coefficient of friction of 0.4 to control the risk of slipping on level surfaces during normal pedestrian movements. More recent Australian and New Zealand standards for slip resistant classification of new pedestrian surface materials specify a requirement for increased friction of greater than 0.47 in other situations, such as step nosings recognising the increased friction needs for users in these areas.

  1. [51]
    The radius of the smooth radiused front edge of the top tread was measured as approximately 8-10 mm. It is said that if a foot is placed in this area during descent, it relies on friction between the shoe and the smooth radiused area to resist the weight of the person descending and prevent a slip on the surface. Further it is said that the radiused nosing edge allows for the foot to pivot or roll over the edge as the descent continues. This is illustrated by a diagram of a shoe rolling over the radiused edge, contacting only the smooth aluminium surface. This is a diagram which is severely criticised by Dr Grigg in the 5 April 2012 Forensic Engineering Consulting report.
  1. [52]
    The authors of the report recommend two relatively low cost ways of modifying the nose region of the step to reduce the risk of slipping from this region. One is what is described as a bolt-on aggressive nosing design providing a degree of interlocking with the shoe sole. The other is using commercially available nosing strips or ladder rung covers. It is said that such covers or strips provide a square rather than rounded edge for increased slip resistance.
  1. [53]
    The report concludes with reference to the importance of having an understanding of the risks associated with a compromised access system and attempting to manage them. The opinion is expressed that the risks could have been managed in this case by:
  1. (1)
    Implementing procedural controls to provide a true backwards descent, providing area rather than line contact of the foot and three functional points of control at all times.
  1. (2)
    Provision of increased slip resistance at the nosing edges of the tread in the recommended manner.

InterSafe report – 23 March 2012

  1. [54]
    As indicated the 23 March 2012 InterSafe report is relied on in relation to Recommended Practice J185 on Access Systems for Off Road Machines. The authors refer to a section of this document which does not appear in the extract which is Attachment F to the 1 August 2011 Forensic Engineering Consulting report. It is as follows:

“4.7 Step, walkway and platform surfaces (including any machine or tool structural component used as part of an access system) as a minimum shall be slip resistant at the foot contact areas.”  (emphasis added)

Mr McDougall’s evidence

  1. [55]
    Mr McDougall said that the reference in the reports to “line contact” was to “a single line of contact, only or contact with an edge on the step and a line along the shoe.”[63]
  1. [56]
    He was cross-examined about the diagram referred to in [51] above, of the shoe rolling over the radiused edge, contacting only the smooth aluminium surface. He accepted this showed the shoe at an angled contact of something in the range of 30 to 45 degrees.[64]  He denied that if a person’s leg had been in the position illustrated in the diagram the person must have already fallen out of the cabin.[65]  However he agreed that if a person’s body went into the boot as depicted the rest of the body would be at the same angle as shown in the shoe unless there was a significant ankle inversion. He had not done any studies or testing as to the inversion capabilities of the plaintiff’s ankle, including with the footwear he was wearing at the time of the fall.[66]  He said that the purpose of the diagram was to illustrate that on this configuration the interlocking between the radiused nose edging of the step and the underside of the boot worn by a person may not come into contact and thereby increase the likelihood of slipping.[67]  His evidence was that it was more illustrative than to indicate a precise angle.[68]  He denied he was attempting to put the shoe into a particular configuration without any evidential foundation to show there was no interlocking between boot and step as it was designed to do.[69]
  1. [57]
    Mr McDougall, illustrated using his shoe on the vehicle tread (Exhibit 5) that the further a person gets to the edge, the lower the friction and potential for interlocking will be.[70] In relation to this he accepted that in addition to not testing the coefficient of friction on the edge because it was impossible to do so, the friction and the degree of interlocking on the holes along the edge were not tested.[71]
  1. [58]
    Mr McDougall also accepted that the construction of the Volvo steps provided good interfacing for a person who was up on the horizontal part of the tread but reducing the further the person got around the edge.[72]  He accepted it depends on where the foot is positioned.[73]  These propositions are best understood in the context of the following cross-examination, during which he continued to illustrate his answers by positioning his shoe on the top of the witness box:[74] 

“Well, the degree of traction or the interface on the Volvo step that you’ve just seen before provides sufficient traction for a person entering to or egressing from the cabin as long as his foot is located on those aspects of it?--  As long as his foot is located on the horizontal surface and away from the edge, then, yes, they provide high levels of traction and are highly unlikely to slip.

And doesn’t step crab like out of the cabin so that his foot is at an inverted angle that it just catches that aluminium edge on the corner of the step that’s slippery?--  That’s correct.

In the circumstances of this case, if the Court accepts that the plaintiff shifted on his seat to ascertain the first step and placed his foot – and planted his foot within the confines of the interface area of the step and then gets his right hand on the handle and the left hand on the wheel and twists to face backwards and then holds the left hand and then goes down, that’s an effective three point exiting of a vehicle?--  You’ve asked multiple questions there, but let me try to address the aspects of them. If he was able to get his foot down on to the horizontal surface such that the majority of the ball of his foot, in other words, there’s an area contact on the top horizontal surface, then he would be highly unlikely to slip.

I just hold you there. When you say a part of his foot, would you say 50 per cent of the foot would be sufficient if it is in interaction with the raised surface of the step? - - It would depend where his weight was being applied in that contact area. If his weight is applied on to the horizontal surface, then friction is vertical force times coefficient of friction, so if his weight is in the area and the contact area is down on to the horizontal section of the tread, then he is highly unlikely to slip. If his weight is in the centre of his shoe and so he gets line contact effectively, then, no, slipping is more likely to occur.

Okay. More likely to occur, but line contact is apart from the proposition I put to you – I am not assuming that the foot is towards the outer edge of the step. You can remove that to one point. I know that you are desperate to go there, but have the step located on the step itself. The foot is located on the step itself. You’ve indicated a substantial part of it. How much do you mean by “substantial”, 50 per cent? - - As I said, if the weight – if his weight is taken through the horizontal section of the foot, then slip won’t occur.

By the horizontal section of the foot, what do you mean by that, the ball of the foot as he pivots and twists? - - May I demonstrate with my shoe?

Sure” - - Weight is pretty much taken through the centre of the foot. If I stand out there such that my weight – my centre of mass is away from the edge, then highly unlikely to slip because my foot is now going to take and engage with the raised sections back from the edge. If I stand here, my weight is – I have now got line contact with that edge and that’s where it becomes marginal.

Okay. So the line contact is important in relation to the degree of traction? - - Very much so, yes.

If there isn’t line contact that is on the raised edge -----? -- If the foot is back on this edge substantially so the weight is – the centre of mass is back here, and remember the body is outside of this, right, so as he turns he’s starting to come out like this, and so this line contact – you know, while it is there and he’s starting to turn into this direction, we actually get a line contact back here.  So his centre of mass now instead of being here comes back out there and we get line contact in this direction, that’s when slip can occur as well.

On your version when a person is descending the stairs, he doesn’t put the whole of his foot in, he – ordinarily any person would only put that front part, the ball of his feet? - - We get – yes, the toe won’t come up against – it depends on the width of the tread in truth.

[At this point Mr McDougall was again shown Exhibit 5].

MR O'DRISCOLL: If I just put this question to you on a person then descending, he puts no more than the front bit of his foot on to those steps, doesn’t he? - - He puts – well, that would be the maximum he could get on to it okay. Now - - - - -.

HIS HONOUR:  That’s probably about half the shoe, would you agree with that? - - Yes.

Half the sole? - -   But the question is is the foot horizontal or is it at an angle?  If it is at an angle, there is – you can feel the likelihood of that slipping.

MR O'DRISCOLL:  Where it is at an angle like that he is already falling out of the truck, isn’t he? - - No, not at all. Not at all.

He has got his back arched in some contorted way? - - If I was to demonstrate here, that’s exactly what we’re talking about.

Do people access out of trucks like that, do they, have you observed?--  Certainly in vertical ladder systems, yes.

Okay? - - It is possible. The issue here though is from that point to that point and as the man’s centre of mass, he is moving his body, he has got his right hand up here, he goes to grab behind him with his left, he then steps down and his centre of mass comes out, so his foot comes down on to the shoe if he is stepping out backwards. As he steps down this way, he steps down on to this edge here and then must turn on to that edge and so the edge becomes critical.

It depends where he positions the foot? - -  It does depend where he positions the foot.”  (emphasis added)

 

Mr Dargusch’s evidence

  1. [59]
    Mr Dargusch’s evidence related to his experience and qualifications to express his opinions, the reports and research selected for the purpose of those opinions, and as already indicated that he recorded everything the plaintiff told him about the incident, including having no memory after his foot slipped.

Mr Sanders’ evidence

  1. [60]
    Mr Sanders, a director of the defendant company which was registered in 1996 gave evidence that he had driven trucks for about 40 years. During this period he had driven a range of different trucks, including heavy haulage. He had worked for other companies and been an owner/operator. The trucks he had driven included Volvos.[75]  He had fallen out of a Kenworth truck because the step was not where it was supposed to be.
  1. [61]
    The defendant had purchased and used 35 Volvo trucks since 1999. He said they were good trucks operationally. They were chosen for their serviceability because they had been identical for a long time. He said:[76]

“The main benefit of the Volvo is that it is walk up, walk in onto the flat floor of the truck. You have your two handles to get up and down. The steps are generally shielded from the weather, the door closes around the outside of the steps, and the main thing is that every truck – and it still is – has the same entry and exit. From 1999 to now you get in and out of the truck exactly the same way each time. So it is consistent.

…

It’s three points of contact.  You are facing into the truck, two nice long handles, three steps. So you always back out of the truck and you always climb up forward.

…” (emphasis added)

  1. [62]
    Mr Sanders said that in making the decision to purchase Volvo trucks the defendant took into account research and presentations demonstrating their safety features and driver comfort. He could not say that the defendant addressed considerations of access and egress from the cabin, because there was no choice. His evidence was:[77]

“It came with that, but it was a good point. It was a plus.”

  1. [63]
    Mr Sanders said that at least 60 people had driven the Volvos,[78] and as far as he was aware, the plaintiff was the only instance of someone falling out of a truck. He was also unaware of any complaints from employees about the steps or their edges being slippery. His evidence was that compared to other trucks he had driven and experienced, he considered the access to and egress form the cabin to be really good. He had personally had no difficulty with this and considered the Volvo was definitely the safer method.
  1. [64]
    His evidence was that he had met the plaintiff a couple of times and had a few short conversations with him. He had not personally instructed the plaintiff how to access the truck or egress from it, as he worked from a different depot. He had not seen the plaintiff getting in or out of a Volvo. He was also unaware of what the plaintiff’s depot manager in Brisbane had done about this. At that time the defendant would not have had a documented training policy specifically dealing with this which he was aware of. He did not believe there was a formal induction system in place for new drivers concerning this at the time of the plaintiff’s fall.
  1. [65]
    However, he said that since the incident a sticker had been attached to all trucks stating three points of contact. The stickers show a person getting out backwards or getting in facing the same way. He also initially gave evidence that there was now in place a documented training policy in relation to the access to or egress from the cabins. His evidence was that this would be part of the defendant’s driver’s handbook and its national heavy vehicle accreditation. However, he then said he didn’t know one way or the other whether the defendant had such a policy in place. He assumed it had been done as part of the accreditation requirements. He thought the accreditation may have been in November 2009, although he was not sure about this. There was no such documentation introduced into evidence. However, he said there was now a policy with new drivers that they are told in relation to a safe system of getting in and out of vehicles. The drivers are told to get out of the vehicles backwards and to use three points of contact.
  1. [66]
    Mr Sanders gave evidence that this was the method he used to get out of the cabin of a Volvo truck. His evidence can be summarised with reference to his response to a question from me followed by one by Mr Kimmins:[79]

“… what you are saying is that before you exited the cab you would have, you would have hold of both handles? - - - Yes. Yes.

MR KIMMINS:  And whilst you were in the cab you would have already turned such that your back was facing out of the door? - - Yes.”

Therefore, as he said, he was already facing backwards before he started going down the treads. He confirmed that in January 2008 there was no system in place at the Brisbane Depot to ensure that drivers exited the cabins of the Volvo prime mover vehicles in this manner.[80]

  1. [67]
    He was aware that while the tread had what he described as these “little hurdy gurdies” to hold a boot, to provide some traction, it had a rounded edge.
  1. [68]
    Mr Sanders said that even when his boots or the steps were wet, he had never had his foot slip off a step. He also said:[81]

“… and I wasn’t concerned but, obviously when it is wet you are taking a little bit more care … “

His evidence concluded on this basis:[82]

“-----when you purchased the Volvos at any stage did you ever consider that that configuration or the step was dangerous in any way, shape or form? - - No. No. I get back to the fact that the door does close on the outside of the steps, the fact that you are actually stepping down in front of the steer wheel, so you are going straight down, not having to walk backwards around your steering, the steer wheel, the front wheel on the truck. I wouldn’t have given it a second thought. I just thought that’s a really good system.” (emphasis added)

Forensic Engineering Consulting reports

  1. [69]
    Two expert reports were admitted into evidence for the defendants. The Forensic Engineering Consulting reports, dated 1 August 2011 (to which reference has been made) and 5 April 2012 were prepared by its principal, Dr Grigg who also gave evidence. He has a Bachelor of Mechanical Engineering awarded by the University of Queensland in 1963. He has held various research and teaching positions in the University’s Department of Mechanical Engineering for over 25 years, including teaching vehicle design. Since 1967 he has investigated over 2900 industrial, vehicle or personal injury accidents, of which many have led to appearances as an expert witness. Not surprisingly, his expertise was not challenged.[83]

Forensic Engineering Consulting report – 1 August 2011

  1. [70]
    In the 1 August 2011 report Dr Grigg states there is no Australian Standard, Design Rule or Vehicles Standard Bulletin dealing with access to cabins of trucks used on the highway. He says that because the truck of concern is not an earthmoving machine, the design of its access system does not fall within the scope of AS 3868-1991, which is referred to in the 23 July 2010 InterSafe report. He notes that, as its title suggests, it is only a guidance document providing recommendations. He accepts that the steps of the vehicle would not comply with the section relating to ladders.
  1. [71]
    On the other hand, he considers that the access system of the vehicle would satisfy the requirements of two United States and one European Standard. These are the US Society of Automotive Engineers Recommended Practice J185 to which reference has been made, US Federal Department of Transport Regulation #399.205 which applies to all trucks having a high profile cab-over engine configuration for entrance, egress and back of cab access, manufactured on or after 1 September 1982 and the European Directive which is equivalent to that Regulation. In referring to these international regulations, he observes that vehicles such as the truck involved are designed and manufactured for the world market. He says:[84]

“Australia is increasingly participating in the development of international standards and is frequently adopting standards from the ISO, often without modification for ‘Australian conditions’. In this case, it is apparent that Standards Australia has not seen the need for a uniquely Australian Standard and there is no relevant Design Rule.”

  1. [72]
    With reference to the truck involved, he expresses the opinion:[85]

“The access configuration on the tuck is amongst the best that I have seen. Although it includes compromises relating to the need to stay within the permitted overall dimensions of such a truck and other aspects, from an ergonomic viewpoint, the access arrangements are much better than found on many other types of machines and vehicles.”

  1. [73]
    However, it is to be noted that Recommended Practice J185 contains section 4.7 which as set out at [54] above, states that step surfaces as a minimum shall be slip resistant at foot contact areas. The US Federal Department of Transport Regulation and the European Directive contain similar provisions, as does AS 3868-1991. The Regulation at #399.207 under the heading of “Truck and truck-tractor access requirements” includes:[86]

“(3) Each step or deck plate shall be of a slip-resistant design which minimises the accumulation of foreign material. Whenever practicable, a self-cleaning material should be used.” (emphasis added)

The European Directive includes:[87]

“1.6 The upper surface of the steps shall be non-slip. In addition, steps exposed to weather and the dirt during driving shall have adequate run-off (draining surfaces).”  (emphasis added)

AS 3868-1991 concerning ladders provides in relation to “safety”:[88]

“3.5.3Debris  The steps should be designed so as to minimise the accumulation of debris. The tread surfaces and the leading edges of the steps should be slip-resistant along and across the tread, at all foot contact points, and should aid in the cleaning of mud and debris from the shoe sole.”  (emphasis added)

  1. [74]
    In this report Dr Grigg says that in view of the description of the incident, the only region of the access system of the truck that could be relevant to the causation of the incident would be the top step and the features of the cabin above that level. He further states that if the plaintiff simply lost his balance, aspects relating to the design, position and condition of the top step would be irrelevant.[89]
  1. [75]
    He observes that the plaintiff’s description to Mr Dargusch of the method of moving from the driver’s seat onto the steps leaves considerable doubt as to whether the three points contact procedure was being followed.[90]
  1. [76]
    He also observes that the alternative method of exiting the cabin described in the report leaves little doubt that it is possible to do so with safety provided care is taken.[91]
  1. [77]
    Although he questions whether the information in many of the reports and records relied on in the 23 July 2008 InterSafe report are relevant, he recognises that falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs.[92]
  1. [78]
    Further, while saying it is virtually impossible to avoid having a stairway that is close to vertical on a truck of the size involved, he recognises that this makes it essential to rely on available handholds when climbing into and out of the cabin. He also says that this immediately gives rise to the need to use the three points of support principle at all times.[93]
  1. [79]
    He also says that this does not mean that at times four points of contact should not be used. He expresses the opinion that the 23 July 2010 InterSafe report does not recognise that the descent method used by the plaintiff provides an opportunity to test the security of the footing before transferring all of his weight to the foot. In other words, when stepping down to the top step from the cabin floor, it is possible to maintain grip with two hands, one on the steering wheel and one on the front hand rail, with one foot on the floor whilst reaching down with the other foot to the top step. Only when satisfied the foothold on the top step is secure, should the weight on the other foot be reduced and that foot moved down, during which time there would be only three points of support. Having gained a secure footing with both feet, it would then be appropriate to transfer the left hand from the steering wheel to the rear handrail. From this position, it would then be possible to step down the remaining steps whilst grasping the two available handrails.[94]
  1. [80]
    Dr Grigg accepts the grip available on smooth stainless steel, such as that on the nose radius of the treads, is likely to be low when wet. However, he is of the opinion that the mechanism of slipping on the curved nosing of the step tread described in the 18 February 2011 InterSafe report relies on the weight having been transferred to the foot making contact with the tread before it was placed securely on the tread and at a time when the other points of support were not strong enough to prevent a fall.[95]
  1. [81]
    While accepting the suggested methods of modifying the nose region of the step treads described in the second InterSafe report would be likely to reduce the risk of slipping from the region, he expresses concern that the bolt-on aggressive nosing design in particular, could result in injuries due to leg contact in other circumstances.[96]
  1. [82]
    He says it is well known that administrative controls are much less effective than engineering solutions and although they may reduce the risk to some degree they rely heavily on the individual paying strict attention to the task at hand.[97]
  1. [83]
    Accordingly, he concludes that:[98]
  1. (1)
    The access configuration on the truck is amongst the best he has seen and when used with due care provides a safe method of entering and exiting from the cabin;
  1. (2)
    The design of the access system complies with US Department of Transportation requirements and the European Directive;
  1. (3)
    There is a high probability that the plaintiff failed to adhere to the three points of support rule when exiting the cabin;
  1. (4)
    Administrative controls are totally dependent on operator compliance and although they may reduce the risk they do not guarantee safety;
  1. (5)
    There are several possible ways in which the fall could have been initiated that are unrelated to the design of the access system.

Forensic Engineering Consulting report – 5 April 2012

  1. [84]
    The 5 April 2012 report is relied on only in relation to the diagram in the 18 February 2011 InterSafe report illustrating a shoe rolling over the radiused edged and the methods suggested for modifying the nose region of the step treads in that report.[99]
  1. [85]
    In this report Dr Grigg emphasises that although he agrees the rounded nose region of the tread is not slip resistant when wet, in his opinion this quality is only relevant to the causation of the fall if boot contact is made with it whilst it is weight bearing.[100]
  1. [86]
    He comments that InterSafe’s analysis is based on the assumption that when descending from the cabin, the claimant’s boot would have been positioned solely on the rounded nose of the top tread.[101]  He describes as grossly inaccurate the diagram in the 18 February 2011 report illustrating a shoe rolling over the radiused edge, contacting only the smooth aluminium surface.[102]
  1. [87]
    In relation to this, Dr Grigg says the details of the nose region of the truck involved are different from the diagram. In particular, he says the actual tread does not have the elevated shoulder region shown on the right-hand side of the small blisters in the diagram and the thickness of the tread does not vary in the manner illustrated.[103]
  1. [88]
    It is said that the effect of these differences is that in order for the perfectly flat sole of the boot to be unable to engage on the small blisters it would have to be tilted or rolled to an angle of approximately 35°. He says this is the maximum angle that most people can roll their foot in inversion, a substantially larger angle than that actually demonstrated by the plaintiff as his method of descent, and it is almost double the 20° maximum angle of dorsiflexion.[104]
  1. [89]
    In addition, he says that the upper region of a work boot surrounds the ankle and tends to limit the degree of inversion possible when wearing it, thus further reducing the risk of the foot being rolled to the degree that could result in loss of engagement with the blisters.[105]  He also says that in practice, work boots with a grip-style tread, such as those shown in the first InterSafe report as identical and similar in condition to those worn by the plaintiff at the time of the fall, would tend to deform when weight was placed on them so as to be able to provide mechanical interlocking with the blisters on the step tread to an even greater angle than otherwise, but due to the limited amount of inversion possible, this deformation would mainly serve to increase the degree of engagement with the blisters.[106]
  1. [90]
    With reference to the suggested modification of the nose region of the step by the addition of a bolt-on aggressive nosing design, he says although this would increase the width of the tread, the width provided would be more than sufficient to accommodate a boot in either a longitudinal or lateral orientation. In his opinion this addition has the potential to create a dirt trap in the groove on the inboard side that could result in the build-up of dirt/mud on the flat top surface of the tread, since it would inhibit drainage from that region.[107]

Dr Grigg’s evidence

  1. [91]
    Dr Grigg’s evidence-in-chief was that he still held to the opinions in the two Forensic Engineering Consulting reports.[108]
  1. [92]
    When cross-examined he agreed that his work was probably more the design and actual engineering side of things.[109]  He said he had been involved in the design of machinery from an ergonomic point of view, including the design of a prime mover cabin.[110]  He had never provided presentations, instruction or training to people about the correct method to access and egress vehicles such as the Volvo prime mover.[111]
  1. [93]
    When asked with reference to the method which it was asserted, the plaintiff used to exit the cabin, whether he agreed there was a likelihood that when he placed his right foot on the step there would be some overhang between his foot and the step, he responded:[112]

“It really depends on to what extent he slides sideways in the seat before placing his leg downwards, but can adopt a position which will, in fact, allow you to put your foot almost entirely on the tread.”  (emphasis added)

  1. [94]
    In his opinion the access system of the vehicle in this case was not a rung ladder but a slightly inclined step ladder.[113]  He accepted that in exiting the vehicle three effective points of support were needed.[114]  He did not consider it was necessary for one of these points to be more important than another at any particular time, but said:[115]

“… generally you would expect one of the two feet to be providing a substantial proportion of the vertical support, whereas the two hands are principally providing support largely in a horizontal direction but also in a vertical direction.”

  1. [95]
    He believes the appropriate way to exit the cabin was:[116]

“to turn and face the side of the vehicle, turn facing the inside of the cabin, in other words, whilst you’re basically standing on the floor before you step down.”

He agreed this was similar to the method which Mr Sanders described that he used to get out of such a cabin.[117]  Dr Grigg had been present when this evidence was given.

Why did the plaintiff fall?

  1. [96]
    The plaintiff must prove that the defendant was negligent and/or in breach of contract by its servants or agents if he is to recover the agreed damages. He must, therefore, prove the means by which he slipped and fell to the ground so as to show that the defendant’s lack of care or breach of contract was the cause of his injury: see Bourk v Power Serve Pty Ltd & Ors.[118]
  1. [97]
    The defendant submits that the plaintiff’s case fails at the outset. Because he cannot demonstrate why he fell, he cannot demonstrate that this relevant legal cause was the defendant’s breach of duty, tortious or contractual.[119]

Principles of law relevant to the determination of the cause of the plaintiff’s fall

  1. [98]
    The defendant as in Bourk places reliance on the judgments of Dixon CJ and Kitto J in Jones v Dunkel.[120]  In that case, Dixon CJ said:[121]

“… we are not concerned with a choice among rival conjectures. In an action of negligence for … personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true that ‘you need only circumstances raising a more probable inference in favour of what is alleged’. But they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.

…

But the law … does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess is more likely than other or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of facts may reasonably be satisfied.” (emphasis added)

  1. [99]
    In that case, Kitto J said:[122]

“One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened …” (emphasis added)

The plaintiff’s contentions

  1. [100]
    Mr Kimmins submitted on behalf of the defendant that there is clear evidence that the reason why the plaintiff slipped was that he twisted his right foot which was on the edge of the top step and the step was wet.

The defendant’s contentions

  1. [101]
    The defendant accepts by the admissions on the pleadings that the plaintiff’s foot slipped on the edge of the first step and he fell to the ground. However, it is submitted how he got there and the positioning of his foot have not been proven and nor does the plaintiff know. Mr O'Driscoll submits that while there is no challenge to the plaintiff’s credibility, his memory is unreliable and should be rejected. He argues that the most accurate statement must be that contained in the 23 July 2010 InterSafe report as set out at [4] above. On the basis of this, it is submitted the plaintiff remembers his foot slipping and/or losing his balance, and after this only recalls coming to lying on the roadway. Therefore, it is said he merely speculates as to how he fell or slipped off the edge. As it is put in the Outline of Submission on behalf of the Defendant:[123]

“The Plaintiff either to the expert or in court has provided no explanation as to how his foot slipped on this occasion whereas on the two previous occasions, with the same contaminant of water (one would think to the same degree) he was able to effect the exit safely.”

  1. [102]
    While it is conceded it is open on the evidence that the plaintiff lost his balance because the step was slippery, it is submitted there are other findings open on the evidence which are equally plausible, e.g. he could have overbalanced and then slipped, he could have slipped on the floor of the cabin which was wet from the rain storming in and where there was no nonslip surface, he could have overbalanced because he was hurrying and placed his foot too far out from the edge of the steps, or he could have known the safe way to exit and stumbled through it on the way out. It was submitted that this could have been misadventure as in Williams v Mt Isa Mines Limited.[124]  In that case the plaintiff gave evidence that he was simply unable to explain why his foot slipped while alighting from a truck.[125]  The Court of Appeal held that the trial judge was entitled to conclude on the evidence that the plaintiff slipped and was injured through misadventure, not through a breach of duty.[126]  It was submitted in the present case that none of these other findings which were said to be open on the evidence were addressed in re-examination.

Conclusions on the cause of the plaintiff’s fall

  1. [103]
    Although the defendant admitted that the plaintiff moved out of the seat and placed his right foot on to the top step and whilst doing this had to twist his body so that his back was facing away from the truck, his right foot was partially overhanging the top step, and as he was making these manoeuvres his foot slipped on the edge of that step and he fell to the ground, I permitted the defendant’s counsel to explore what happened between the placing of the right foot on to the top step and it slipping on the edge.
  1. [104]
    As indicated during his evidence the plaintiff said that he “just lost my balance and just slipped off” and “it was so slippery I just lost it”.[127]  The plaintiff also spoke of “losing my weight”.[128]  The plaintiff said at one stage while he was attempting to turn around “you end up with a two point thing and that’s got to be a balancing.”[129]  He also said that he touched the left handrail and “lost my balance”.[130]  On behalf of the defendant Mr O'Driscoll makes reference to this evidence in support of his submission that there are other findings open on the evidence which are equally plausible to a finding that the plaintiff lost his balance because the step was slippery.
  1. [105]
    Reference is also made in support of this submission to Mr Dargusch’s evidence that the plaintiff recalled during the interview “his right foot slipping and/or losing his balance”.[131]  This is in the context of Mr Dargusch’s testimony that he recorded everything the plaintiff told him about the incident, including having no memory after his foot slipped.[132]
  1. [106]
    Notwithstanding this I am satisfied the plaintiff had a clear memory of and was a reliable witness about what happened prior to this. In particular I am satisfied that when his evidence is viewed as a whole it is to the effect he remembers that as he twisted his body to exit the vehicle he also twisted his right foot so it came into contact with the wet rounded edge of the top step with the result that he lost his grip and therefore his balance on it and slipped. Further the effect of his evidence was that this happened before he was able to properly grip the left handrail. In other words the plaintiff’s evidence was that in these circumstances he lost his balance because the step was slippery.
  1. [107]
    This is consistent with what was contained in his notice of claim in which he said that when he was attempting the manoeuvre of placing his right foot on the top step while twisting his body so his back was facing away from the truck, his foot slipped and he fell to the roadway.[133]  The defendant’s admissions are also consistent with this.
  1. [108]
    The plaintiff’s attempts to describe how this incident happened during his evidence and his earlier interview with Mr Dargusch must be assessed in light of how he presented as a witness. This was as a down to earth person without the precision of expression to be expected of a witness who is more likely to be used to giving evidence in a court environment. It is unlikely that he actually expressed himself as recalling his right foot “slipping and/or losing his balance” as recorded by Mr Dargush in the 23 July 2010 InterSafe report. This is despite Mr Dargusch’s evidence that he recorded everything the plaintiff told him about the incident. The fact Mr Dargusch expressed the plaintiff’s recollection in terms of losing “his” balance makes it more likely that this was a paraphrase or interpretation of what was said by a person who was attempting to describe something about which he gave evidence was “all one movement.”[134]  I consider this explains the plaintiff’s evidence that this was not really what he told Mr Dargusch.[135]
  1. [109]
    Mr Dargusch’s expression of the plaintiff’s recollection must be considered in the context that it follows the plaintiff’s demonstration of the method used by him to exit the vehicle at the time of the incident. It is clear from the description of the demonstration[136] that after he had placed his right foot on to the top tread he moved his body outwards and began to pivot so that he was facing into the truck. As this was occurring he reached backwards and behind his body with his left arm toward the left handrail and his left foot would begin to move outwards.
  1. [110]
    Although the plaintiff accepted during cross-examination that the photo taken of this demonstration showed he had half of his right foot on the top tread[137] this was clearly a reference to his initial movement before he pivoted on the front of that foot. He denied that the majority of his foot remained on that tread as he twisted and pivoted. He agreed the heel kicked out as he did so.[138]  I consider that this has resulted in his right foot partially overhanging the top step as the defendant has admitted. As set out at [93] above Dr Grigg does not exclude the likelihood that when the plaintiff placed his right foot on the step, using the method the plaintiff described to exit the vehicle, there would be some overhang between his foot and the step. As Dr Grigg said, it simply depends on the extent to which he slides in his seat.
  1. [111]
    The plaintiff also accepted that on the basis of what I take to be the photograph which is Figure 13 to the 18 February 2011 InterSafe report he had more than 75 percent of his foot on the top step. This demonstrated a variability of where his right foot was placed on the tread when he leant out of the vehicle. However again this was a reference to his foot placement before he pivoted on it so he was facing the truck.
  1. [112]
    The plaintiff’s evidence was that his right foot was on the very edge of the top step when it slipped off. This was at a time when he was twisting his right foot to the left inward.[139]  He said that when he did this he lost all grip on the step and his foot came straight off. This was because the water was there. [140]  He also said when he was pivoting he just lost his footing and he just slipped because it was wet.[141]
  1. [113]
    Although he said at one point of cross-examination “I don’t know why I slipped” he responded to the next question which was “you don’t know why you slipped?” with the answer “well I twisted my foot and grabbed the other handle and that’s when I lost it.” Three questions later he denied the proposition that he had no recollection that the twisting of his foot caused him to slip that evening.[142]  Further it was when it was subsequently put to him that he didn’t know why he slipped off the step, he responded:[143]

“I just slipped off the step because it was wet.”

He followed this by saying “when I was pivoting, I just lost my footing.”[144]

  1. [114]
    Accordingly I am satisfied that when the whole of the plaintiff’s evidence is considered he did have a clear memory of why he slipped. I consider that this is what he was referring to when he said he had a clear recollection and memory of all the things that were occurring that evening. Mr Dargusch’s evidence is that he had no memory after this. The plaintiff’s evidence that he had complained of difficulties with his memory at the Gympie Hospital on the date of the incident and having such difficulties since the incident are to be viewed in this light.
  1. [115]
    As I have set out the plaintiff testified that he touched the left handrail and lost his balance. This was in the context of swivelling to go around with his left hand to grab this handrail. His evidence was that he just turned around and touched it with the palm of his left hand, but never completed the grip around it. This was when his foot slipped straight off the step. He also gave evidence about falling forward.[145]  His evidence also was that the more times spent in getting out of the prime mover the more water comes into the cabin. Further when asked “But the last time you did this you didn’t do it safely and you fell out of the truck?” he responded “That’s because all the water was in there.”  However this response also has to be viewed in the context that two questions later he said there was nothing about the water that made things difficult until he slipped.[146]   This also has to be considered in the context that at this stage he had taken his left hand off the steering wheel to grab the left handrail and was moving his left foot to get into position to come out. At the same time he was twisting his right foot to get more hold on the tread of the top step and it came straight off. This was the point at which he lost all grip. Further at the time he twisted he had only two points of contact.[147]  As Dr Grigg concedes there is a high probability that the plaintiff failed to adhere to the three points of support when exiting the cabin.[148]  In circumstances where all this was happening in one movement, taking the evidence as a whole I am satisfied that the plaintiff lost his balance because the step was slippery and not because he overbalanced and slipped in the cabin whether from the rain storming in onto a non slip surface or otherwise. This is the reason why he was unable to grip the left handrail. As he said:[149]

“When I was pivoting, I just lost my footing and I tried to grab the handle beside me and the handle in the door …”

I understand the reference to the handle beside him to be the left handrail as opposed to the door handle which he mentions separately.

  1. [116]
    It was put to the plaintiff that his reference to twisting his foot was a reconstruction on his behalf.[150]  He denied this was the case. I am satisfied that this reference did not involve a reconstruction. The term “twisted” had been adopted earlier in the notice of claim to describe how the plaintiff was attempting to exit the cabin. As described in that notice:[151]

“The next step was that Heinz had to move out of the seat and to place his right foot onto the top step and whilst doing this Heinz had to twist his body so that his back is facing away from the truck.”

It was this language which was adopted in the amended statement of claim and was subject to the defendant’s admission.[152]  As a matter of commonsense in conjunction with twisting his body the plaintiff would twist his right foot in the manner he described. I am satisfied that the term “twisted” originated from the manner in which the plaintiff described what happened from the time of the notice of claim. I am also satisfied that the use of the term “pivot” by the plaintiff does not involve a reconstruction by him. Even if the plaintiff had not initially used these terms it is not a reconstruction simply because he has subsequently adopted language used by others to articulate what he had already described occurring. The following aspect of cross examination must also be interpreted in light of this:[153]

“I put it to you again that you never told him that you ankle turned and that’s what caused you to slip? – Yes, I did. I said that’s how I always get out.”

This question was a reference to what he told Mr Dargusch. I consider the plaintiff took the reference to “ankle turned” in context to be a reference to the ankle twisting or pivoting and not to turning over on his ankle. In answering the question he was attempting to express that he had told Mr Dargusch this is how he always got out of the vehicle. This is consistent with the description given in the 23 July 2010 InterSafe report that the plaintiff moved his body outwards and began to pivot so that he was facing into the truck. As I have observed as a matter of commonsense such a demonstration would also involve twisting or pivoting his right foot. This is simply another way of expressing that in the process of doing this he was turning his ankle.

  1. [117]
    Consistently with this conclusion I do not understand the plaintiff to have given evidence that in doing this there was an inversion of his ankle. Therefore I do not consider that the diagram referred to in [51] above, of the shoe rolling over the radiused edge, contacting the smooth aluminium surface and which was criticised by Dr Grigg was meant to indicate a precise angle. I accept Mr McDougall’s evidence that it was more intended to be illustrative.[154]
  1. [118]
    I consider that what is relevant is that as Mr McDougall illustrated using his shoe on the vehicle tread during his evidence the further a person gets to the edge of the tread the lower will be the friction and potential for the boot cleats interlocking with the series of rectangular and round openings with raised edges in the treads. As he said it depends on where the foot is positioned. For example he said where 50 per cent of the foot was interacting with the raised surface of the step, if the plaintiff’s weight was being applied on the horizontal section of the tread he is unlikely to slip, but if his weight is in the centre of the shoe so that he effectively gets line contact, slipping is more likely to occur: Therefore line contact is important in relation to the degree of traction. As he also said with reference to the way in which the plaintiff described leaving the vehicle:[155]

“… he is moving his body, he has got his right hand up here, he goes to grab behind him with his left, he then steps down and his centre of mass comes out, so his foot comes down on to the shoe if he is stepping out backwards. As he steps down this way, he steps down on to this edge here and then must turn on to that edge and so the edge becomes critical.”  (emphasis added)

  1. [119]
    The defendant admits that the first step of the vehicle was aluminium and had a rounded edge.[156]  Mr McDougall’s evidence was that it was not possible to test the co-efficient of friction on the edge of the step. Further the friction and the degree of interlocking of the holes along the edge of the tread were not tested.[157]  The defendant denies that the edge of the first step of the vehicle was slippery and was not slip resistant.[158]  However Dr Grigg accepted that the grip available on smooth stainless steel such as on the nose radius of the treads is likely to be low when wet.[159]  He also expressed the opinion that this quality is only relevant to causation of the fall if boot contact was made with it whilst it was weight bearing.[160]  Expressed another way this quality is relevant to the causation of the fall if such contact was made whilst the boot was weight bearing.
  1. [120]
    On the basis of this analysis of the evidence, being satisfied that the plaintiff had a clear memory and was a reliable witness as to why he slipped, I conclude that the probable cause of his fall is that as he twisted his body to exit the vehicle he also twisted his right foot so that it came in contact with the wet rounded edge of the top step with the result that he lost his grip and therefore his balance and slipped before he had a proper grip on both handrails. It is probable that the plaintiff had initially placed half his right foot onto the tread of the top step but as he twisted or pivoted it so that he was facing into the truck with his left arm reaching backwards and behind his body towards the left handrail and his left foot moving outwards he did not have three functional points of contact and his right foot made line contact with the edge of the step in circumstances where it was weight bearing. Therefore it is probable that the reason why the plaintiff slipped when attempting to exit the vehicle was that as put by Mr Kimmins, he twisted his right foot, which was on the edge of the top step and the step was wet.  I consider this is the only reasonable inference. The fact that Mr Dargusch refers to the plaintiff recalling his right foot “slipping and/or losing his balance” does not affect this conclusion. The incident occurred quickly in one movement. Either or both of the descriptions are appropriate to describe how the fall happened.
  1. [121]
    Accordingly the plaintiff has proved the means by which he slipped and he fell. This is not a case where the court is required to choose between guesses or between conflicting inferences of equal degree of probability. It has passed from the realms of conjecture. It can be distinguished from Williams because when the complainant’s evidence is considered as a whole he is able to explain why he slipped and fell.

Liability

Principles of law relevant to the determination

  1. [122]
    The relevant cause of the fall having been identified, the question becomes whether it was the result of the defendant’s breach of duty.
  1. [123]
    As Mason J observed in Wyong Shire Council v Shirt[161] with reference to Donoghue v Stevenson,[162] as it has been refined in later decisions, prima facie a duty of care arises on behalf of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the plaintiff’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff. It has not been suggested that there were present in this case any considerations which negated the duty owed by the employer defendant to its employee, the plaintiff. The issue is whether the plaintiff was in breach of its duty to take care.
  1. [124]
    In Wyong v Shirt Mason J said that in deciding whether there has been a breach of a duty of care:[163]

“…the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of 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 to the reasonable man placed in the defendant’s position.” (emphasis added)

Mason J then explained that a risk of injury which is extremely unlikely to occur may nevertheless constitute a foreseeable risk:[164]

“The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” (emphasis added)

  1. [125]
    Additionally, a person who owes a duty of care to others must take account of the possibility that one or more persons to whom the duty is owed might fail to take proper care for his or her own safety.[165]  As stated by Mason, Brennan and Deane JJ in Webb v The State of South Australia:[166]

“… the reasonable man does not assume that others will always take due care; he must recognise that there will be occasions when others are distracted by emergency or some other cause from giving sufficient attention to their own safety.”

Their Honours then proceeded to address what response a reasonable man, foreseeing the risk would make to it. In doing so they applied what has been referred to in subsequent decisions as the Shirt calculus from the judgment of Mason J as set out at [124] above. In Webb which reversed a decision that there was no negligence where injury had been suffered because of the manner of construction of a false kerb which was a very obvious feature and where there was no record of any previous accident in the seven years since its construction, their Honours said:[167]

“But obviousness and the absence of accident over this period does not mean that the construction presented no risk of injury. As the false kerb was adjacent to the bus stop there existed the distinct possibility that a pedestrian, because he was in a hurry to catch a bus or was intent on observing an approaching bus or because his attention was distracted for some other reason, would fail to take sufficient care to avoid injury to himself…

…

Here the risk of significant personal injury was obvious; the occurrence of such an injury was a distinct possibility.” (emphasis added)

  1. [126]
    Similarly in McLean v Tedman, Mason, Wilson, Brennan and Dawson JJ having held that the risk of injury to employees who were garbage collectors was a foreseeable and significant risk inherent in the way which the garbage was collected arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of the part of an employee, said:[168]

“In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence. The employer is not exempt from the application of this standard vis-à-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer’s obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

…

If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his duties then this is a factor which the employer must take into account”. (emphasis added; references to authorities omitted)

  1. [127]
    In Bus v Sydney City Council[169] Mason CJ., Deane, Dawson and Toohey JJ said with reference to these observations that the law had progressed by placing an increased emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom the duty of care is owed. Their Honours stated that possibility is now recognised as being relevant to the standard of care owed by an employer to an employee and as well generally in situations in which a duty of care exists. As their Honours observed the principle that a duty is owed to a person who may inadvertently or negligently injure himself if the duty is breached is not unique to employment situations. Gaudron J said:[170]

“Where inadvertence, even inadvertence amounting to contributory negligence, is itself a foreseeable possibility the duty of care extends to the foreseeable risk of injury by inadvertence. So much is clear from McLean v Tedman. In the present case inadvertence was a foreseeable possibility and there was a foreseeable risk of injury by inadvertence even if usual and tradesmanlike practices were followed.”

  1. [128]
    As Muir J said in Carlile v Hedegus & Ors[171] the duty of the defendant was that of a reasonably prudent employer and it was a duty to take reasonable care to avoid exposing the plaintiff to unnecessary risks.
  1. [129]
    His Honour also said that in determining whether there was a breach of duty, regard may be had to the considerations expressed in the following passage from the reasons of Dixon CJ and Kitto J in Hamilton v Nuroof (WA) Pty Ltd:[172]

“It has been said that a reasonable and prudent employer is (i) bound to take into consideration the degree of injury likely to result; (ii) bound to take into consideration the degree of risk of an accident; (iii) entitled to take into consideration the degree of risk, if any, involved in taking precautionary measures.” (References to authorities omitted)

  1. [130]
    Muir J also referred with approval to Neill v NSW Fresh Food and Ice Pty Ltd[173] where Taylor and Owen JJ observed:

“… in order to enable an injured workman to recover damages from his employer the evidence must be such as to justify a finding of negligence on the part of the employer and if, the negligence alleged is in relation to the system of work employed, the evidentiary material must be such as to enable the jury to find that the system unreasonably exposed the workman to the risk of injury. In other words, it must appear that the employer failed ‘to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation’”. (references to authorities omitted)

  1. [131]
    In McLean v Tedman[174] Mason, Wilson, Brennan and Dawson JJ held:

“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer…  And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.” (emphasis added)

  1. [132]
    Further, their Honours stated:[175]

“It is said, nevertheless, that the alternative system was not practicable because the employees would have refused to accept it or to have carried it out, notwithstanding that its object and effect was to protect them from injury. We would reject the suggestion that the appellant bore the onus of proving specifically that the alternative system was acceptable to the employees and that they would have carried it into effect. In our view, once the appellant was able to point to an alternative and safe system which as practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system because its implementation would have been resisted by employees on the ground that the increase in the time taken to do the work would have damaged the man’s prospects of taking a second job.” (emphasis added)

  1. [133]
    In O'Connor v Commissioner for Government Transport[176] the High Court of Australia held that an employer is under a duty, either himself or by his servants or agents, to take reasonable care for the safety of his employee by providing him with proper and adequate means for carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.[177]

However while emphasising that the “standard of care for an employee’s safety is not a low one”[178] their Honours held that the employer had not failed in his duty to the employee, an experienced plumber, as the question of how he should perform the work was an ordinary question for a plumber to decide. They considered it was fanciful that a warning or special instruction was demanded about so simple and obvious a matter requiring neither special skill nor knowledge to decide and ordinarily treated as a matter for the man doing the job.

  1. [134]
    This principle was quoted with approval by Gibbs CJ in McLean’s Roylen Cruises Pty Ltd v McEwan.[179] Where his Honour said:

“It is not implied by this statement that an employer is never under a duty to warn his employees of risks which are usual or expected … the question simply is whether in all the circumstances of the case the taking of reasonable care by the employer involved the giving of a warning.” (emphasis added)

In this case where the plaintiff was aware of the risk which he described as an occupational hazard, Gibbs CJ said:[180]

“It is not reasonable to expect the employer of an experienced [worker] should be obliged to warn him of a danger which is obvious, and of which he is in fact already fully aware, unless there is some circumstance which indicates that a warning is necessary …”

  1. [135]
    Williams[181] is a case in which de Jersey J (as he then was) at first instance found that the particular method of safely exiting the vehicle in that case was a matter of commonsense which could reasonably be left to the individual employee. His Honour said that the relevant question was whether it was reasonably required of the defendant to instruct its employees in the way they should safely alight from the truck in order to avoid an unnecessary risk of injury.[182]  He concluded in the circumstances of the case that there was no unnecessary risk of injury which reasonably obliged the defendant to take any particular step, whether with respect to the layout of the vehicle, by instruction to the plaintiff or otherwise.[183]
  1. [136]
    On appeal[184] it was held that de Jersey J was entitled to conclude on the evidence that the plaintiff slipped and was injured through misadventure, not through breach of duty. McMurdo P, with whom Ambrose J agreed said:[185]

“Alighting from the truck was an ordinary everyday event which involved some obvious risk; an employer could not reasonably be expected to warn of the potential danger of such a risk; any risk must have been obvious to the appellant who described the process as akin to alighting from his own Toyota Landcruiser. There were no circumstances here that made a specific warning or special training necessary: see McLean’s Roylen Cruises Pty Ltd v McEwan.”

Williams JA said:[186]

“There was nothing exceptional about the task of getting out of (or into) the vehicle. There were a number of ways that could be done safely. It was for the appellant to determine what was the safest method for him to adopt given his height, weight etc.”

  1. [137]
    In Reck v Queensland Rail[187] the plaintiff locomotive driver was injured by a fall in the course of exiting the defendant’s locomotive. He tripped over a raised lip on the floor at the doorway and fell out the door. It was the defendant’s failure to instruct him in the dangers associated with alighting from the locomotive that resulted in the trial judge’s finding of negligence or breach of duty against the defendant. It ought to have been made clear to the plaintiff that he should not protrude his head out but should remain wholly within, the cabin, until he had a firm grip with both hands on the security handrails on either side, so that he had “three point contact”, as it was described in evidence. It was held that if the defendant had been properly informed of this and shown how to exit safely, the accident would, on the balance of probabilities, not have occurred.
  1. [138]
    The Court of Appeal held there was no good reason for disturbing this finding even though locomotives with doors of this design had been used for over 700 years of “man hours” without an accident of this type happening before this one and the plaintiff had successfully alighted from it a thousand times or more during the three and a half years before the incident occurred.
  1. [139]
    A ground of appeal was that the defendant had no duty to train the respondent in egressing the locomotive because the danger was obvious and the plaintiff was aware of it. Fryberg J, with whom McPherson JA and Holmes J agreed, rejected this submission, saying:[188]

“… An employer is not relieved of a duty to provide training in methods of avoiding risks inherent in its system of work simply because the risks are obvious and are known to its employees. In the present case, although the risk was obvious, the remedy was not.

…The remedy as his Honour found, was a method of egress involving three-point contact so as to avoid having the centre of gravity outside the cabin before the driver had a secure grip on the handrail.

[Counsel for the defendant/appellant] submitted that it was obvious that this was what should have been done and that no instruction was needed, I accept neither that characterisation nor that submission.

[16] Given the design features just described, devising a method of egress which would consistently satisfy the criteria described by his Honour while not creating other unreasonable risks was not something which could be assumed to be among the skills of a train driver. In the absence of a specific line in the job description, train drivers cannot be taken to be experts in human movement, ergonomics or kinetics, much less industrial safety. It is true that this was the only incident of a driver falling forwards out of the locomotive after tripping on the door sill despite some 700 use years for this class of locomotive; and that the respondent must have entered and exited the locomotive hundreds if not thousands of times in the period of almost 3½ years prior to the accident. However that history does not demonstrate that either the respondent or other drivers had the skills to devise a proper method of egress. It does not even demonstrate that they were using such a method.

…

The history referred to above might have been relevant to the probability of a fall when using the method which the respondent had devised for himself, but it does not demonstrate that his was a proper method of egress. It was not. In the circumstances of this case the duty to provide a safe system of work required the respondent to devise a proper method, train its employees in its use, instruct them to use it and take reasonable steps to ensure its instruction was implemented. His Honour rightly found that the respondent breached that duty.”

  1. [140]
    The second ground of appeal was that if the duty was breached, the breach was not proved to have caused damage. It was submitted that the plaintiff did not give evidence that if he had received that instruction he would have done something differently. In rejecting this submission Fryberg J said:[189]

“I doubt whether such evidence, given with the benefit of hindsight, would have added much to the strength of the respondent’s case. There was no suggestion that he was a disobedient employee and no reason to think that he would not have followed an instruction given to him. Even if he ought to have appreciated the danger of falling, the fact that he still exited the cabin in a dangerous manner does not prove the contrary. Moreover, in the circumstances of the case, proper instruction required training. Training to perform an action involves more than issuing warnings and giving commands. It requires the employer to demonstrate and explain the action, and then to have the employee practice it until it becomes automatic. That is one way of reducing the risk of injuries due to inadvertence. The finding that on the balance of probabilities, had the appellant performed its duty the accident would not have occurred, was justified.”

  1. [141]
    On behalf of the defendant Mr O'Driscoll relies on the principle expressed in Davie v New Merton Boards Mills Ltd.[190]  Chesterman J applied this principle in Bourk v Powerserve Pty Ltd & Ors[191] where he said:

“In general an employer will discharge its obligations of providing proper plant and equipment to its employees by showing it bought appropriate equipment from a reputable manufacturer or supplier.”

  1. [142]
    Davie v New Merton Boards Mills Ltd was discussed in Dibb Group Pty Ltd trading as Hill & Co v Cole[192] where Basten JA, with whom Beazley and McColl JJA agreed, addressed the issue of whether it is sufficient for the purpose of the employer’s duty to provide adequate plant and equipment, that the employer purchase plant and equipment from reputable suppliers. His Honour said:[193]

“The first question was addressed by the House of Lords in Davie v New Merton Board Mills Ltd [1959] AC 604. In that case, a maintenance fitter suffered an injury when a piece of metal came off a tool he was hammering and lodged in his eye. The tool was purchased by his employer from a reputable supplier and had been manufactured by reputable makers; nevertheless, the manufacture was negligent and the question was whether the employer was liable to the employee, in circumstances where the defect was neither apparent nor discoverable by reasonable inspection on the part of the employer. The claim of liability put by the appellant was described by Lord Reid as a ‘somewhat startling proposition’: at 630. After a review of the authorities, Lord Reid concluded at 645-646:

‘The conclusion to which I have come is that an employer, besides being liable to his servant for injury caused by the negligence of his own servants, is in some cases liable in respect of the negligence of others. Where, then, is the line to be drawn?  On the one hand it appears that an employer is liable for the negligence of an independent contractor whom he has engaged to carry out one of what have been described as his personal duties on his own premises and whose work might normally be done by the employer’s own servant – at least if the negligent workmanship is discoverable by reasonable inspection. On the other hand, for the reasons which I have given, I am of opinion that he is not liable for the negligence of the manufacturer of an article which he has bought, provided that he has been careful to deal with a seller of repute and has made any inspection which a reasonable employer would make.’”

  1. [143]
    In Lusk & Anor v Sapwell[194] Muir JA, with whom Margaret Wilson AJA and Ann Lyons J agreed, observed that it appeared that the primary judge may have focused unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the appellants having regard to the prospect of the risk of injury. The decision confirms that the inquiry as to whether a duty of care has been breached is prospective and not confined to the circumstances of the plaintiff’s accident. This principle was expressed by Hayne J in Vairy v Wyong Shire Council[195] which is set out in the judgment.
  1. [144]
    Hayne J said:[196]

“[126] When a plaintiff sues for damages alleging personal injury has been caused by the defendant’s negligence, the inquiry about the 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 injury.

[127] … And it is only by looking forward from a time before the accident that due weight can be given to what Mason J referred to in Shirt as “consideration of the magnitude of the risk and the degree of the probability of its occurrence.”  It is only by looking forward that due account can be taken of “the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.””  (emphasis added; references to autorities omitted).

  1. [145]
    The plaintiff must allege and prove, not merely that the defendant was negligent, but its negligence caused or materially contributed to the injury.[197]  As Margaret Wilson AJA said in Lusk:[198]

“An employer’s duty of care to his or her employee is non-delegable, and a high standard of care is expected. But the duty is not absolute. And in order to succeed in an action for damages for breach of duty the employee must establish both the breach and the employer’s conduct materially caused the injury. Where the employer’s negligence consists of an omission to provide certain safeguards, the employee must establish that the performance of the duty would have adverted the harm.” (references to authorities omitted).

Her Honour cited the judgment of Gibbs J in Duyvelshaff v Cathcart & Ritchie Ltd,[199] where it was said:[200]

“On the issue of causation it was for the plaintiff to satisfy the Court that his injuries were caused by the defendant’s omission to provide a safe system of work or to perform his statutory duty. To do so he must show that the safety measures would have been effective and he would have made use of them if they had have been available.

…

It is readily apparent that the use of a safety belt would have avoided the occurrence of the injury to the plaintiff. But it was for the plaintiff to prove that he would have used a safety belt, had it been supplied with the ladder.

In general it would be easy to draw the inference that the plaintiff would use a safety belt if it were available, that being the course which a reasonable person mindful of his own safety would take. But here there are circumstances which persuade me that such an inference should not be drawn.”

The plaintiff’s contentions

  1. [146]
    The plaintiff first addressed the relevance of Williams. It is submitted that the only matters which are binding are principles of law; and that neither the outcome nor the findings of facts are binding in the present case. In support of this proposition reliance is placed on the decision of de Jersey J, the primary judge in Williams, where he stated with reference to a decision relied upon by the plaintiff:[201]

“But the factual determination obviously cannot control this one, which must be made on the evidence given in this case.”

Reliance is also placed on Bus where Mason CJ, Deane, Dawson and Toohey JJ said with reference to an earlier High Court decision:[202]

“Once it is accepted that the decision turns on failure to observe the standard of care appropriate in the particular circumstances of the case, rather than on the precise scope of the duty of care, then it is impossible to regard the case as formulating a statement of principle which binds this Court in such a way as to compel a decision for the Council in the present case.

…

Having recognized that the decision with respect to negligence in Dell’Oro was one based upon the particular facts of that case and that the facts of the present case, though similar, are not identical, it necessarily follows that the Court of Appeal was not bound … to follow Dell’Oro in the present case. In Teubner v Humble Windeyer J observed:

‘[D]ecisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application …  That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence.’” (reference to authorities omitted)

It is submitted that there are factual differences between Williams and the present case which make it distinguishable and therefore the findings in that case are irrelevant to my decision.

  1. [147]
    Mr Kimmins relied on McLean’s Roylen Cruises Pty Ltd v McEwan, Bus, McLean v Tedman and O'Connor for the following propositions:

  • The defendant owed the plaintiff a duty to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of injury;

  • The duty of care is not a low one;

  • The duty includes an obligation not only to establish and maintain a safe system of work but also to enforce it; and

  • The duty includes taking account of the possibility that the plaintiff may inadvertently or negligently injure himself.

He submitted that the present case does not involve a failure to warn of unusual or unexpected risk but one where the defendant was required to instruct the plaintiff in the performance of his work because instructions might reasonably be thought to be required to secure him from danger of injury.

  1. [148]
    It is also submitted that the defendant owed the plaintiff a duty pursuant to s 28(1) of the Workplace Health and Safety Act 1995 (Qld) to ensure the workplace health and safety of the plaintiff was not affected by the conduct of the defendant’s business or undertaking. The defendant admits that it owed the plaintiff a duty pursuant to that provision.[203]  While the plaintiff accepts that s 28(1) does not create a statutory cause of action, it is submitted to remain relevant to the question of whether the plaintiff was negligent.
  1. [149]
    Reliance is also placed on the passages from the judgment of Fryberg J in Reck set out at [139] and [140] and Webb at [125] above.
  1. [150]
    It is submitted that:

  • the risk of falling from the cabin of the Volvo prime mover was a foreseeable risk of injury;

  • it was incumbent on the defendant to carry out risk assessments which would have disclosed shortcomings in the access system of the vehicle; in particular the rounded smooth edge of the strip;

  • having regard to the shortcomings with the steps of the Volvo, it was incumbent on the defendant to ensure that the plaintiff adopted a safe means of exiting the vehicle; and

  • the defendant was negligent for failing to ensure that the rounded edge of the step was slip-resistant.

  1. [151]
    The plaintiff emphasises with reference to Shirt that a risk of injury is foreseeable if it is not far-fetched or fanciful.[204]
  1. [152]
    It is submitted that the risk of injury occurring whilst ascending or descending the stairs of a truck is foreseeable. This is based on the 23 July 2010 InterSafe report which refers to reports and research which show that falling while using access systems of trucks is an ongoing problem. Reference is made to the report from the UK Safety Executive in 2006 and Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000) which are quoted at [43] above. Reliance is placed on Dr Grigg’s recognition in the 1 August 2011 Forensic Engineering Consulting report that falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs.[205]
  1. [153]
    As to breach of duty reliance is placed on the statement of Mason J in Shirt set out at [124] above. It is submitted that the reasonable response to the foreseeable risk of falling whilst exiting the cabin of a Volvo prime mover was to:

  • ensure the plaintiff was instructed in and adopted a safe system of exiting the truck; and

  • ensure that the steps of the truck were appropriate.

  1. [154]
    It is submitted that to begin with the defendant should have had in place an adequate system of risk management. Having referred to the observations on the issue of risk management in the 23 July 2010 InterSafe report, including the Department of Employment, Training and Industrial Relations, 2000, “Risk Management Advisory Standard”, it is submitted:

  • there are shortcomings in the design of the steps to the truck, i.e. the angle of the steps, the small amount of available tread, the smooth, rounded edge of the steps and the excessive distance between the cab floor and the top step;

  • the slip resistant nosing could have been easily bolted to the step to make it slip resistant;

  • it was incumbent on the defendant to instruct the plaintiff as to a safe method of exiting the truck in particular having regard to the short comings in design of the steps of the truck; and

  • had the defendant undertaken a risk assessment then it would have become aware of the short comings and the fact that the plaintiff was adopting an inappropriate way of exiting the truck.

Particular emphasis is placed on the opinion expressed in the 18 February 2011 InterSafe report as set out in [53] above that the risks could have been managed in this case by:

  • implementing procedural controls to provide a true backwards descent, providing area rather than line contact of the foot and three functional points of control at all times; and
  • provision of increased slip resistance at the nosing edges of the tread in the recommended manner.

This is said to sum up the plaintiff’s case.

  1. [155]
    It is submitted that not only did Messrs McDougall and Dargusch give evidence that the safe method in which to exit the cabin of the Volvo prime mover was to use a backward descent and a system where there were at least three points of conduct but Mr Sanders and Dr Grigg agreed. Reference was made to Mr Sanders’ evidence that the method he used to get out of such a cabin was to turn in the cabin such that his back was facing out the door as described at [66] above, and to the evidence of Dr Grigg where he described as set out at [95] above, a similar method as being the appropriate way to exit the cabin.
  1. [156]
    The point is made that at the time of the plaintiff’s injury the defendant did not have in place any training policy or system instructing new drivers as to the safe method of entry and exit of the cabins of the Volvo prime movers.[206]  Further, the defendant did not have any policy in place to ensure that its drivers exited the vehicles in the manner described by Mr Sanders.[207]
  1. [157]
    Reliance is placed on Dr Grigg’s 1 August 2011 Forensic Engineering Consulting report in which he accepts the grip available on smooth stainless steel, such as that on the nose radius of the tread is likely to be low when wet[208] and the methods of modifying the nose region of the step treads described in the second InterSafe report would be likely to reduce the risk of slipping from the nose region.[209]
  1. [158]
    It is submitted that in determining breach of duty it is relevant that the means of overcoming the risk of injury, i.e. by making the step slip-resistant, was simple and inexpensive.
  1. [159]
    After analysing the plaintiff’s method of exiting the cabin of the Volvo prime mover, it is submitted that it was not appropriate because he did not maintain three points of contact and did not undertake a backwards exit from the cabin. The point is made that this is a method which he had adopted over 12 years of exiting trucks with a different access system. Further it is submitted that adoption of the alternative method of exiting the cabin was important given the small amount of tread offset from the cabin to the first step.
  1. [160]
    It is submitted that it was incumbent upon the employer to instruct the plaintiff as to this safe method of exiting the cabin for the following reasons:

  • The employer would have observed the plaintiff exiting the cabin at the depot;

  • The employer must have known that on occasions the plaintiff would have to exit the cabin in the rain;

  • This was essential because the plaintiff would have to regularly exit the cabin of the truck;

  • The Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000) advocates training in the three-point contact technique as a safe solution for getting in and out of trucks as set out at [46] above;[210] and

  • As set out at [47] above the authors of the 23 July 2010 InterSafe report express the opinion that the alternative method of descent represents a procedural or administrative control. According to them the method used by the plaintiff at the time of the incident was not a true backwards descent which would reduce the risk of falling when using the access system. They state that for any such administrative control to be effective, it is necessary to:

  • Clearly detail the access procedure for the particular piece of equipment;

  • Document the procedure;

  • Provide training in the procedure; and

  • Enforce the procedure by providing appropriate supervision.

  1. [161]
    It is also submitted that on the basis of the evidence:

  • The critical foot contact area at the nosing edge of stair treads of the access system to the cab of the truck, cannot be considered as slip resistant in wet conditions and therefore did not meet recommendations in the guidance documents;

  • The risk of falling from trucks is increased as a result;

  • This is an ongoing risk which has been known about for more than 30 years;

  • The method employed by Mr Schmidt when using this access system to descend from the truck increased the risk of a fall;

  • A risk management approach could have provided information and training to require the plaintiff to use a true backwards descent, reducing the risk of falling; and

  • Addition of non-slip strips or edging could have further reduced the risk.

  1. [162]
    Mr Kimmins emphasises Mr Sanders’ evidence which is set out at [65] above, that since the incident a sticker had been attached to all trucks stating three points of contact, and his evidence about a documented training policy having subsequently put in place in relation to the access to and egress from the cabins. Despite Mr Sanders’ subsequent lack of certainty concerning whether this latter policy had been implemented, he also said that there was now a policy with new drivers that they are told in relation to a safe system of getting in and out of vehicles.[211]  This involved the drivers being told to get out of the vehicles backwards and to use three points of contact. The point is made that is similar to the system of the driver training that Mr McDougall had previously been involved in.[212]  Therefore it is submitted that there is no reason that the defendant did not have such a system in place in January 2008.
  1. [163]
    It is submitted that if the plaintiff had been instructed as to the correct method of exiting the vehicle, it is unlikely he would have slipped off the edge of the top step. It is argued, this is supported by Mr Sanders’ evidence that when using the backward exit from the cabin he had never slipped off the step even in the wet, and he had no concerns.[213]  Mr Kimmins submits Mr Sanders appeared to be indicating that if this method to exit the cabin is adopted then reasonable traction is obtained between his foot and the step. Reference is also made to his knowledge that the step had a rounded edge.[214]
  1. [164]
    Therefore it is submitted that:

  • as at January 2008 the defendant should have had in place a policy whereby all new drivers were provided with instructions to exit the Volvo prime mover cabins backwards and to use three points of contact;

  • it was not appropriate to leave the method of exiting the vehicle to the driver;

  • the defendant failed to so instruct the plaintiff;

  • the plaintiff was injured getting out of the vehicle whilst so adopting a backwards descent and slipped when he had only two points of contact; and

  • had the plaintiff been provided with proper instructions he would not have slipped as the backwards exit, according to Mr Sanders, allowed for good traction and did not cause a foot to come into contact with the edge of the step.

Further it is submitted:

  • as at January 2008, Mr Sanders knew that the edge of the step was rounded and was obviously smooth and did not have good slip resistance quality;
  • it was the edge of the step on which the plaintiff slipped as admitted on the pleadings;
  • if the edge of the step had slip-resistant qualities then on the balance of probabilities the plaintiff would not have slipped; and
  • the evidence was that the plaintiff’s foot slipped on the edge of the step, the edge of the step had low slip resistant qualities, in particular in the wet and it was raining at the time of the plaintiff’s slip. On the balance of probabilities, it is those factors which caused the plaintiff to slip.

In oral argument Mr Kimmins reminded me that the 18 February 2011 InterSafe report had recommended two relatively low cost methods of modifying the nose region of the step to reduce the risk of slipping in this region.[215]

  1. [165]
    Mr Kimmins addressed the application of the principle arising from Davie v New Merton Boards Mills Ltd by submitting that the only aspect of this case to which it relates is the slip resistant qualities of the top step. He argues that in this case the defendant well knew that the step had a rounded edge. It is his submission that knowing this steps should have been taken to adopt one of the recommendations in the 18 February 2011 InterSafe report as to relatively low cost ways of modifying the nose region of the step to reduce the risk of slipping from this region.[216]
  1. [166]
    He also submitted that even if the plaintiff had shown it had bought appropriate equipment from a reputable manufacturer or supplier the question of whether the instructions should have been provided to the plaintiff as to how to access the vehicle is a separate issue.[217]

The Defendant’s contentions

  1. [167]
    The defendant accepts that a slip from a truck is foreseeable risk of injury. However it submits that the plaintiff has not proved that the defendant failed to discharge its duty to take reasonable care for him in circumstances where it engaged him as an experienced truck driver; purchased appropriate plant and equipment (the Volvo prime mover), and via its servant or agent had owned 35 Volvo trucks since 1999,[218] employed at least 60 drivers[219] (with no complaints concerning the access to or egress from the trucks, including from the plaintiff either in relation to the truck involved in the incident or other Volvos for the period he was driving for the defendant), had taken into account research and presentations demonstrating the safety features of Volvo trucks in making the decision to purchase them,[220] and chose them for this feature.
  1. [168]
    Therefore it is submitted that having regard to the likelihood of injury occurring the defendant’s response to the foreseeable risk of injury was reasonable. Mr O'Driscoll asserted that the test is that of a reasonable employer and not a reasonable interSafe expert.[221]
  1. [169]
    Reliance was placed on statements by de Jersey J and Court of Appeal in Williams, Muir J in Carlile, and Taylor and Owen JJ in Neil in support of the argument that the defendant had provided a safe system of work and therefore had not breached its duty of care.
  1. [170]
    In particular it was argued that:

  • The plaintiff had demonstrated very thoroughly his awareness of maintaining three point contact in exiting from the cabin of the Volvo prime mover, and was particularly mindful of the added dangers that occur when it was wet;

  • He was able to successfully negotiate it in the adverse wet conditions, before he slipped, adopting the system and utilising the configuration of the step integral to the Volvo system safely;

  • He was unable to do it on the last occasion and slipped, but could provide no evidence as to what caused his foot to slip on this last occasion;[222]

  • There were no further instructions that the employer could have provided to arm him with knowledge of the system or of the danger, that he did not already know or possess; and

  • This is not a claim that there was some error occasioned by repetition of tasks (as the plaintiff indicated he was well aware of the danger and was taking it into account in exiting the cabin).

  1. [171]
    Reck was sought to be distinguished on the basis that the plaintiff in this case knew of the remedy to any risk involved in exiting from the cabin. It is submitted that this was using the system of three point contact. It is said he was embarking on this remedy and was taking particular care because he was appreciative of the difficulties arising due to the rain, but was simply hurrying.
  1. [172]
    With reference to the submission that given the plaintiff’s knowledge of the need for three point contact there was no further instructions the employer could have provided to him, Mr O'Driscoll recognised that the method postulated by the plaintiff had an additional feature of turning inside the cabin before commencing the backwards descent.
  1. [173]
    He responds that even adopting this method there was still the opportunity for the plaintiff to come within the dangerous area of the step with the smooth aluminium edge at its outer extremity. Therefore it was submitted that this method had the same inherent risk. Further he observed that it seems patently clear that there was no non-slip surface at the top of the cabin. Therefore it is submitted that the alternative system advanced on behalf of the plaintiff would not have made any difference. He also submitted that there should have been evidence that the plaintiff would have adopted this method if he had been instructed to do so.
  1. [174]
    The defendant submits that the plaintiff’s case essentially is that the configuration of the Volvo truck was inherently unsafe, and it was a design defect which was causative of the plaintiff’s accident and/or as a reasonable response, the defendant should have been aware of it and prescribed a warning to the plaintiff and for the plaintiff to adopt a different method of exiting from the truck.
  1. [175]
    It is submitted that if there is such a defect (which is denied), it was not readily ascertainable by the defendant upon any reasonable inspection or reasonable use of the truck in circumstances of:

  • The reputation for safety which Volvo trucks enjoyed;

  • The defendant relying upon the representations made by Volvo in relation to safety;

  • The defendant taking into account research and presentations demonstrating the safety features;

  • The defendant’s experience of its 60 drivers of Volvo trucks since 1999 and never having a complaint in relation to the design configuration of the steps; and

  • No complaints ever having been made by the plaintiff.

  1. [176]
    It is submitted on the product defect case that the defendant has discharged its obligation to take reasonable care by the purchase of the Volvo truck.
  1. [177]
    It is also argued that the claim based on the failure of the system of work is parasitic to the claim based on a product defect, i.e. the system in place was safe and suitable but for the product defect, and thereby the system was safe. As Mr O'Driscoll put it during oral argument the issue of the reasonableness of the training and instruction only arises for consideration if the defendant employer had knowledge there was a defect in the system of access to or egress from the cabin of the Volvo prime mover.[223]
  1. [178]
    Mr O'Driscoll relies on Davie v New Merton Board Mills Ltd.  As he put the argument in oral submissions, if the edge of the step was defective, the defendant was only reasonably required to give further instructions, if upon reasonable inspection it was aware of the defect and therefore had to give an instruction over and above that which would normally have been needed.[224]

Conclusions on liability

  1. [179]
    The defendant employer clearly owed the plaintiff employee a duty to take reasonable care to avoid reasonably foreseeable risks of injury.[225]  As I have observed it has not been suggested that any considerations were present in this case which negated this duty.
  1. [180]
    As Muir J said in Carlile the duty of the defendant was that of a reasonably prudent employer to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury.[226]
  1. [181]
    The duty of care is not a low one.[227]  A high standard of care is expected.[228]  The issue is whether the plaintiff was in breach of its duty of care.
  1. [182]
    Because the negligence alleged is in relation to the system of work employed it is necessary for the plaintiff to satisfy me that the defendant failed to take reasonable steps to provide a system which was reasonably safe, having regard to the dangers necessarily inherent in the operation.
  1. [183]
    As stated by Mason J in Shirt[229] in deciding whether there has been a breach of a duty of care the first question I must ask is whether a reasonable person in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.
  1. [184]
    The defendant accepts that a slip from a truck is a foreseeable risk of injury. This is despite the fact that as far as Mr Sanders’ was aware the plaintiff was the only instance of someone falling out of a Volvo truck.[230]
  1. [185]
    However as Dr Grigg recognised falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs.[231]  The 23 July 2011 InterSafe report refers to a number of reports and records which demonstrate that this problem had been known for at least 28 years at the time the plaintiff sustained his injuries.[232]  As set out above the UK Health and Safety Executive 2006 report notes that vehicle ingress and egress was cited as one of the four most critical accident problems for the haulage industry. Slips and falls accounted for over 27 per cent of all cases reported which resulted in lost work days. The study also revealed that there were three times as many egress accidents as ingress accidents.[233]  Of particular significance to Queensland is the 2000 Workplace Health and Safety Road Freight Transport Health and Safety Guide which identifies getting in and out of truck cabins, particularly larger trucks as being risky and states that “Trips and slips can easily occur in wet weather or if hurrying.”[234]  This is the exact circumstance in which the plaintiff suffered his injuries. The WorkSafe Victoria (2005) publication on “Prevention of Falls – Trucks” recognises that even for cabins below two metres, as is the case here, it is common for drivers to injure themselves getting in and out of the cabin.[235]
  1. [186]
    The defendant’s director Mr Sanders had himself fallen out of a Kenworth truck.[236]  And it can be inferred that the defendant accepts there is a danger that a truck driver will slip on a  step of a Volvo prime mover cabin. This arises from the following exchange during the plaintiff’s cross-examination set out at [15] above:

“And being a truck driver yourself, you know of the dangers of slipping on a step? - - Yes.

That’s why you take the care? - - - That’s right.”

  1. [187]
    The defendant was aware through Mr Sanders that the top step of the Volvo prime mover he was driving had a rounded edge.[237]  It is admitted that this step was made from aluminium and had a rounded edge.[238]  In the 18 February 2011 InterSafe report, the opinion is expressed that smooth aluminium surfaces provide poor resistance in wet conditions.[239]  Although Dr Grigg is of the opinion the access configuration of the Volvo prime mover is amongst the best he has seen and when used with due care provides a safe method of entering and exiting the cabin,[240] he agrees the rounded nose region of the tread is not slip resistant when wet.[241]  Further despite the design of the truck to shield the top two steps from the weather when the door is closed, when the door is opened to exit the vehicle in wet weather as happened on this occasion, the steps and the driver’s shoes will become wet.[242]  Therefore the nosing edge of the top tread cannot be considered slip resistant in wet conditions. The defendant through Mr Sanders must have been aware of this and that the risk of drivers falling from the top step when exiting from the cabin will be increased in these circumstances. Although Mr Sanders had never had his foot slip off the edge of a step when wet, he acknowledged that obviously a little more care is taken in these circumstances.[243]  This must have been accentuated by knowledge that the effective angle of the access system for a user of the vehicle was in the 80-90o range,[244] the small amount of tread offset from the cabin to the first step and the distance between the cabin floor and the first step.[245]
  1. [188]
    Further the defendant through its servants or agents must have been aware of the method employed by the plaintiff to exit the vehicle at the time of the incident because the plaintiff said that this was the method which he always employed.[246]  It was the method he used all he time at the Depot.[247]  As stated by the authors of the 23 July 2010 InterSafe report this method was not a true backwards descent and was less than optimum whereas a true backwards descent would reduce the risk of falling when using the access system.[248]  The method proposed by the authors involved him turning to face into the cabin before commencing his backwards descent while maintaining three points of contact at all times.[249]  Although the plaintiff knew the importance of having three points of contact from his experience in the trucking industry he said at the time he twisted he had only two such points of contact.[250]  As Dr Grigg observes the plaintiff’s description to Mr Dargusch of his method of exiting the cabin leaves considerable doubt as to whether the three points contact procedure was being followed.[251]  Dr Grigg also observed that the alternative method of exiting the cabin as described in the InterSafe report leaves little doubt that it is possible to do so with safety provided care is taken.[252]  In his opinion the angle of the access system immediately gives rise to the need to use the three points of support principle at all times.[253]  In his oral evidence Dr Grigg described a similar method to that proposed by the InterSafe report as the appropriate way to exit the cabin.[254]  This is also the way which Mr Sanders himself descended using to exit the cabin of the defendant’s Volvo prime movers.[255]  Accordingly even though the plaintiff didn’t know if his supervisor was present, given he had commenced employment in October 2007, by 15 January 2008 the defendant must have been aware that the method employed by the plaintiff to exit the cabin in the depot increased the risk of him falling from the top step and this risk would be increased when the tread was wet. Relevantly the plaintiff also gave evidence that every man had his own way of getting out of the vehicles.[256]  The defendant must also have been aware of this.
  1. [189]
    The plaintiff gave evidence that while he took care because he knew of the dangers of slipping on a step “the rain was that bad you’re trying to – you’re trying to hurry a little bit”.[257]  However even if the plaintiff fell and injured himself through inadvertence in the course of hurrying to exit the cabin the defendant was obliged to take this possibility into account. As stated in McLean v Tedman:[258]

“The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.

…

If there is a foreseeable risk of injury arising from the employer’s negligence in carrying out his duties then this is a factor which the employer must take into account.”

In this case despite the fact the plaintiff was aware of the dangers of slipping off the top step, and not withstanding that of at least 60 people who had driven Volvos for the defendant since 1999 the plaintiff was the only instance of someone falling out of a truck to the defendant’s knowledge, this does not mean there was no risk of injury. In this case, in circumstances where it is recognised that falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs, I consider the defendant was required to recognise that there will be occasions when truck drivers will be distracted by emergency or some other cause from giving attention to their own safety. Accordingly there existed a distinct possibility that a driver who was hurrying to exit a cabin in wet conditions would fail to take sufficient care to avoid injuring himself. Inadvertence can also arise from an employee not having been given proper instructions as to how to safely exit a truck in these circumstances. Therefore in my view inadvertence by a truck driver in exiting the defendant’s Volvos in wet conditions was a foreseeable possibility and there was a foreseeable risk of injury through inadvertence even by an experienced truck driver.

  1. [190]
    Having regard to this analysis I find that it was foreseeable to the defendant that a driver exiting the cabin of a Volvo prime mover in wet conditions by using the access system with the angle of the steps, the small amount of tread offset from the cabin to the top step, the distance between the cabin floor and the top step and the smooth rounded edge of the top step will not adopt a true backwards descent while maintaining three points of contact at all times, such that his foot may well come into contact with that wet smooth rounded edge in such a way that a slip will result with the resulting fall and injury.
  1. [191]
    Accordingly a person in the defendant’s position would have foreseen that providing a vehicle with this access system for the plaintiff to use in wet conditions involved a risk of injury to the plaintiff through falling from the cabin in the course of using the access system to exit the vehicle.
  1. [192]
    I do not consider this to be a risk that was extremely unlikely to occur. It was neither far fetched nor fanciful.
  1. [193]
    Having answered this first question affirmatively, it is next necessary to determine what a reasonable person would do in response to the risk. As Mason J said in Shirt,[259] this calls for a consideration of the magnitude of:

“the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

  1. [194]
    In answering this question it is essential to focus on a reasonable person in the position of the defendant having regard to the prospect of the occurrence of the risk of injury which the plaintiff suffered rather than the circumstances of the incident itself.[260]  It is by looking forward from a time before the incident that due weight can be given to the consideration of the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty or inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have had.[261]
  1. [195]
    The defendant submits that its response to the foreseeable risk of injury caused by a slip from a truck was reasonable. It submits in particular that it provided a safe system of work.
  1. [196]
    In prospectively considering the magnitude of the risk and the degree of probability of its occurrence I take into account Dr Grigg’s opinion that the configuration of the Volvo prime mover is amongst the best he has seen and when used with due care provides a safe method of entering and exiting the cabin; and that of at least 60 people who have driven Volvos for the defendant since 1999 the plaintiff was the only instance of someone falling out of a truck. On the other hand as Dr Grigg also recognised falling when using access systems of trucks is an ongoing problem despite efforts by manufacturers to improve designs. Reports and records in support of this have been discussed at [185] above. As recognised in the Queensland report slips can easily occur while getting in and out of larger truck cabins in wet weather or if hurrying. Mr Sanders had himself fallen out of a different type of truck. It can be inferred the defendant accepted there is a danger that a driver will slip on a step of a Volvo prime mover. As Mr Sanders was aware the vehicle driven by the plaintiff had a top step with a rounded edge. It was made from aluminium. When the door of the vehicle is opened to exit in wet conditions the steps and the drivers’ shoes will become wet. Dr Grigg agrees that the rounded nose region of the tread is not slip resistant when wet. Therefore as I have concluded, the nosing edge of the top tread cannot be considered slip resistant in wet conditions. Balancing these considerations I consider that the risk of the injury that the plaintiff suffered was at least a distinct possibility.
  1. [197]
    In my view in response to this degree of risk a reasonable employer would have provided a safe system of work by implementing an adequate system of risk assessment, devising a method to safely exit its Volvo prime mover cabins, training employees in its use (including documenting it), instructing them to use it and taking reasonable steps to ensure the instruction was implemented.[262]  In addition to the implementation of a procedural control of this nature I consider a reasonable employer would have responded to the degree of risk by implementing increased slip resistance at the nosing edge of the tread.
  1. [198]
    As the defendant through Mr Sanders was aware of the rounded edge of the top step, and was aware that a little more care had to be taken when it was wet, I agree with Mr Kimmins’ submission that it was incumbent on the defendant to have in place an adequate system of risk management. As indicated in [44] above the WorkSafe Victoria publication requires that if there is a risk of a fall from height, a risk assessment must be undertaken. The 2000 “Risk Management Advisory Standard” of Department of Employment, Training and Industrial Relations as also set out at [44] above would be an effective system to identify the risks of falling when using the Volvo access system. Had the defendant had such a system in place I consider it would have identified a method to safely exit its Volvo prime mover cabins.
  1. [199]
    Not only did the defendant not have such a system in place but Mr Sanders was not aware of a documented training policy dealing with how to access or egress from the truck. He also did not believe that there was a formal induction system in place for new drivers concerning this at the time of the plaintiff’s fall.[263]  This is in accordance with the plaintiff’s evidence that he never received any instruction in relation to getting out of the Volvo vehicles during this employment with the defendant.[264]  This is also consistent with the plaintiff’s evidence that every man had his own way of getting out of the vehicles.
  1. [200]
    As indicated in [188] above the authors of 23 July 2010 InterSafe report proposed a method to exit the cabin involving the plaintiff turning inside the cabin before commencing a true backwards descent while maintaining three points of contact at all times. The authors’ express opinion is that this is a procedural or administrative control which would reduce the risk of falling when using the access system.[265]  This is the method in which Mr McDougall had trained Shell drivers to exit Mercedes Benz vehicles which were not greatly dissimilar to Volvo vehicles.[266]  As set out at [46] above the Shell Driver’s Handbook published in 1993 is a typical example of encouragement to use this type of technique. The Queensland Government Workplace Health and Safety Road Freight Transport Health and Safety Guide (July 2000) also identifies a safe solution for getting in and out of trucks as training in a three-point contact technique.[267]  As also set out in [188] above Dr Grigg considered the method to exit the cabin described in the InterSafe report leaves little doubt that it is possible to exit the cabin with safety provided care is taken; in his opinion the angle of the access system immediately gives rise to the need to use the three points of support principle at all times; in his oral evidence he described a similar method to that proposed by the InterSafe report as the appropriate way to exit the cabin; and this was also the way Mr Sanders himself described using to exit the cabin of the defendant’s Volvo prime movers.
  1. [201]
    In my view this was a safe method to exit the cabin. However as stated by the authors of the InterSafe report at [47] above for such an administrative control to be effective, it is necessary to:[268]

  • clearly detail the access procedure for the particular piece of equipment;

  • document the procedure;

  • provide training in the procedure; and

  • enforce the procedure by providing appropriate supervision.

This is consistent with the decision in Reck where the court said within reference to the circumstances in that case:[269]

“the duty to provide a safe system of work required the respondent to devise a proper method, train its employees in its use, instruct them to use it and take reasonable steps to ensure its instruction was implemented.”

  1. [202]
    As was said in McLean v Tedman in deciding whether an employer has discharged its common law obligation to his employees the court must take into account the employer’s power to prescribe, warn, command and enforce obedience to his commands. As such the employer’s obligation extends to establishing, maintaining and enforcing such a system.[270]
  1. [203]
    In accordance with O'Connor the plaintiff was under a duty to instruct the defendant in the performance of his work where instructions might reasonably be thought to be required to secure him from the danger of injury.[271]
  1. [204]
    In this case the plaintiff was aware of the dangers of slipping off the top step. However as also said in McLean’s Roylen Cruises Pty Ltd v McEwan it is not to be implied that an employer is never under a duty to warn his employee of risks which are usual or expected. The question is whether in all the circumstances reasonable care by the employer involved the giving of the warning.[272]
  1. [205]
    This is a case in which I consider that the circumstances are such that reasonable care by the defendant involved giving a warning to the plaintiff and its other truck drivers in the form of instructing and training them in the method of safely exiting the cabin of the Volvo prime mover (including documenting it) and taking reasonable steps to ensure its instruction was implemented.
  1. [206]
    As in Reck while the risk may have been obvious, the remedy was not. The risk may have been obvious in the sense of the plaintiff being aware of the added dangers occurring when exiting the cabin in the wet. I do not accept the defendant’s submission that because the plaintiff knew of the importance of maintaining three points of contact because of his experience in the trucking industry he therefore knew the remedy to the risk in exiting the cabin. Given the design features of the access system from the cabin to which I have referred the method of exiting involving a turning to face into the cabin before commencing a true backwards descent, while maintaining three points of contact at all times can not be assumed to be among the skills of a truck driver. This is particularly so when the 23 July 2010 InterSafe report describes the method the plaintiff always employed as not a true backwards descent and less than optimum, and where every man had his own way of getting out of the vehicles. As with the train drivers referred to in Reck truck drivers cannot be taken to be experts in human movements, ergonomics or kinetics much less individual safety. The history of there being no other previous similar incidents involving the plaintiff or other drivers, including the fact that shortly beforehand the plaintiff had successfully negotiated the access system from the cabin on three occasions adopting his personal method, does not demonstrate that either he or the other drivers had the skills to devise a proper method of egress. To the contrary the evidence indicates that the plaintiff’s own personal method was not a proper method of egress because it was not a true backwards descent while maintaining three points of contact at all times. As such this was not a case of the defendant instructing and training the plaintiff and its other truck drivers about a matter which was for an ordinary truck driver to decide. Specialist skill and knowledge was required. Therefore it was a case in which the defendant was under a duty to instruct and train the plaintiff and other truck drivers in the performance of their work by using the method of exiting the cabin which might reasonably be thought to secure them from the danger of injury.
  1. [207]
    As I have indicated this duty included not only a duty to establish and to train and instruct its drivers in such a safe system of work but to ensure it was implemented by enforcing it, such as by providing appropriate supervision. As Fryberg J said in Reck “Training to perform an action requires more than issuing warnings and giving commands. It requires the employer to demonstrate and explain the action, and then for the employee to practice it until it becomes automatic”.[273]
  1. [208]
    However as Mr Sanders confirmed, in January 2008 there was no system in place at the defendant’s Brisbane Depot to ensure drivers exited the cabins of the Volvo prime mover vehicles in the manner proposed in the 23 July 2010 InterSafe report, which was in fact the manner he personally used to exit the cabins of those vehicles.[274]
  1. [209]
    While recognising that the issue of whether the duty of care has been breached is to be judged prospectively, the fact that subsequently to the plaintiff’s injury a sticker had been attached to all trucks stating three points of contact, and as part of the national heavy vehicle accreditation requirements there was now a policy that new drivers are told about a safe system of getting in and out of vehicles, involving getting out of vehicles backwards and using three points of contact, demonstrates that at the time of the plaintiff’s injury their existed a simple, practical, convenient and inexpensive way of taking action to alleviate the risks.
  1. [210]
    Because of the reliance placed on the statements by the courts in Williams to support the argument that the defendant provided a safe system of work and therefore had not breached its duty of care I set out the reasons why I consider the case is indistinguishable from the present circumstances. Unlike Williams, where it was held that there were no circumstances which made a specific warning or special training necessary as to the way for employees to safely alight from a truck in order to avoid the risk of unnecessary injury, in the present case the particular method of safely exiting the vehicle was not a matter of commonsense which could be reasonably be left to an individual employee; the process of exiting the vehicles was not akin to alighting from a Toyota Landcruiser;[275] there were not a number of ways that getting out of the vehicle could be done safely;[276] and this is not a case in which the plaintiff does not significantly, contend that there was anything defective about the step, or that there was slippery material on it.[277]
  1. [211]
    I also do not agree with the manner in which the defendant seeks to distinguish Reck at [171] and [172] above. Although as Mr O'Driscoll argues the plaintiff knew that the remedy to any risk involved in exiting the cabin was three point contact which the plaintiff was embarking on, he also recognised that the method postulated by the plaintiff of safely exiting the cabin had the additional feature of turning inside the cabin before commencing the backwards descent. Further as I have found the plaintiff was not embarking on a true backwards descent. It is in this sense that just as the remedy had not been obvious in Reck it was not obvious in this case.
  1. [212]
    In addition as I have indicated I consider a reasonable employer would have responded to the degree of risk by implementing increased slip resistance of the nosing of the tread.
  1. [213]
    I have found, the nosing edge of the top tread cannot be considered slip resistant in wet conditions. Dr Grigg agreed that the rounded nose region of the tread is not slip resistant when wet. The defendant must have been aware of this particularly when this consequence could have been accentuated by knowledge of the angle of the steps, the small amount of tread set off from the cabin to the first step and the distance between the cabin floor and that step.
  1. [214]
    Although Dr Grigg observes that the access system complies with the US Department of Transportation requirements and the European Directive[278] it is relevant that the former includes a requirement that “Each step … shall be of a slip resistant design”[279] and the Directive stated that “The upper surface of the steps shall be non-slip”.[280]  Dr Grigg also refers to US Society of Automotive Engineers Recommended Practice J 185, which states that step surfaces as a minimum shall be slip resistant at foot contact areas.[281]  Further the Australian Standard AS 3868-1991 relating to earth moving machinery contains a guideline that “The tread surfaces and the leading edges of the steps should be slip resistant along and across the tread, at all foot contact points”.[282]
  1. [215]
    I am satisfied that increased slip resistance at the nosing edges of the tread to alleviate the risk of injury could have been achieved easily, inexpensively and without inconvenience by modifying the region to reduce the risk of injury in either of the two ways recommended in the 18 February 2011 InterSafe report. These were described as relatively low cost, and are as follows:[283]
  • bolt on aggressive nosing design;
  • commercially available nosing strips or rung ladder covers.

Dr Griggs accepts that these suggested methods of modifying the nose region of the step treads would be likely to reduce the risk of slipping from the region.[284]  Although he expresses concern that the former design, in particular, could result in injuries due to leg contact in other circumstances, it is not apparent that the second design could cause this result. Further he accepts that the former response will achieve the aim of reduced risk of injury from slipping off the step treads.

  1. [216]
    Accordingly I find persuasive evidence that those precautions above which were practical, easy, inexpensive and convenient to implement and were likely to afford an employee such as the plaintiff an appreciable degree of protection from the risk of falling. In my view it has been established that it was unreasonable of the defendant not to have taken these precautions. In these circumstances a safe system of work was not provided.
  1. [217]
    In my view the principle expressed in Davie v New Merton Boards Mills Ltd that in general an employer will discharge its obligations of providing proper plant and equipment to its employees by showing it bought appropriate equipment from a reputable manufacturer or supplier is inapplicable because in this case any inspection made by a reasonable employer would have revealed the defect to the top step on which the plaintiff slipped.
  1. [218]
    This defect was that, as agreed by Dr Grigg the rounded nose region of the step was not slip resistant when wet. As I have found, the defendant through Mr Sanders who was aware of the rounded edge of the step, must have been aware of this and that the risk drivers falling from the top step will be increased when the door is opened to exit the vehicle in wet weather.[285]  Because this nosing edge of the treads of the top step was not slip resistant it did not comply with the requirements, directives and guidelines identified in [214] above.
  1. [219]
    Further despite Dr Grigg’s opinion that the access configuration of the Volvo prime mover is amongst the best he has seen and when used with due care provides a safe method of entering in excessing the cabin, I consider the evidence demonstrated short comings in the design of the vehicle. In addition to the smooth rounded edge of the top step, these involved the angle of the steps, the small amount of tread offset from the cabin to the top step and the distance between the cabin floor and the top step.
  1. [220]
    Accordingly I consider that there was a defect to the access system of the vehicle which was not hidden, unusual or unexpected but should have been obvious to the defendant.
  1. [221]
    For this reason I do not accept the defendant’s submission that this defect was not readily ascertainable upon reasonable inspection and reasonable use of the vehicle. Therefore the defendant did not discharge its obligation to take reasonable care by the purchase of the Volvo truck. This also answers the defendant’s argument that the issue of reasonableness of training and instruction only arises for consideration if the defendant had knowledge there was a defect in the system of access and egress to and from the cabin.
  1. [222]
    I therefore find on the balance of probabilities that the defendant breached his duty of care to the plaintiff by failing to provide a safe system of work.
  1. [223]
    I am also satisfied on the balance of probabilities that the defendant’s negligence in omitting to do so caused or materially contributed to the plaintiff’s injury because if it had performed its duty to provide the safeguards I have identified this would have adverted the harm.
  1. [224]
    In particular it is unlikely that the plaintiff’s foot would have slipped off the edge of the top step with its poor slip resistant qualities in wet weather, if he had been instructed in the method of exiting the cabin by turning inside it before using a true backwards descent while maintaining three points of contact at all times as proposed in the 23 July 2010 InterSafe report and also if the nosing of the tread then had the increased slip resistance recommended in the 18 February 2011 InterSafe report. The former proposition is supported by Mr Sanders’ evidence that he had never slipped when using this method to exit the cabin, even in wet conditions.
  1. [225]
    I disagree with the defendant’s submission that the alternative system advanced on behalf of the plaintiff would not make any difference because this method still provided the opportunity for him to come within the dangerous area of the step and because of the non slip area at the top of the cabin. To the contrary I consider that this method would ensure that when the plaintiff stepped from the cabin on to the top step he would be holding onto both handrails and have three functional points of contact. This true backwards descent would also avoid the plaintiff needing to twist or pivot his foot with the risk it would make line contact with the edge of the step in circumstances where it was weight bearing.
  1. [226]
    In Lusk Margaret Wilson AJA said it was for the plaintiff to prove that he would have used the safety measure which would have avoided the occurrence of the injury. Mr O'Driscoll submits that there should have been evidence of this in the present case. However as her Honour also observed in general it would be easy to draw this inference, that being the course which a reasonable person mindful of his own safety would take.[286]  I have no hesitation in drawing this inference in the present case. As was the case in Reck there is no suggestion that the plaintiff was a disobedient employee and no reason to think that he would not have followed an instruction given to him. As Fryberg J said:[287]

“Even if he ought to have appreciated the danger of falling, the fact that he still exited the cabin in a dangerous manner does not prove the contrary.”

The fact is in this case Mr Sanders did not believe that there was any formal instruction system in place for new drivers concerning how to access or egress from a truck at the time of the plaintiff’s fall.[288]  And there was no system in place at the defendant’s Brisbane Depot at that time to ensure drivers exited the cabins of the Volvo prime mover vehicles in the manner proposed in the 23 July 2010 InterSafe report.

  1. [227]
    In addition as was said in McLean v Tedman[289] there is no onus on the plaintiff to prove specifically that the alternative system was acceptable to employees and they would have carried it into effect. Because the plaintiff has been able to point to an alternative and safe system which is practicable and would have obviated the risk of injury, it was for the defendant to establish that it would have been unable to enforce compliance with this system because its implementation would have been resisted by employees.
  1. [228]
    I am therefore satisfied on the balance of probabilities that the proposed safety measures would have been effective and the plaintiff would have made use of them had they been available to him.

Conclusion

  1. [229]
    For these reasons I find the plaintiff’s injuries were caused by the negligence of the defendant by its servants and agents.

Order

  1. [230]
    The defendant is to pay to the plaintiff the sum of $225,000 clear of the WorkCover Queensland refund as damages for personal injuries and consequential loss arising as a result of the negligence of the defendant by it servants or agents.
  1. [231]
    I will hear from the parties if necessary in respect of interest and costs.

Footnotes

[1]The reference to Heinz is a reference to the plaintiff. The notice of claim is set out in Exhibit 2 which is the 23 July 2010 InterSafe report.

[2]Exhibit 2. See also footnote 25 as to the role played by Mr McDougall of InterSafe in the preparation of this report.

[3]Ibid, page 2, paragraph 5.

[4]T 2-79, ll 40-55.

[5]T 1-30, ll 42-51.

[6]T 1-41, ll 36-46.

[7]Ibid, ll 48-50.

[8]T 1-46, ll 22-26.

[9]Exhibit 2, page 5.

[10]Ibid, page 3, paragraph 1.

[11]Ibid, page 5.

[12]See Amended Defence of Defendant, filed 22 August 2011, paragraph 1. These admissions relate to paragraphs 5(a)-(g) and (i) of the Amended Statement of Claim. The equivalent paragraphs appear in the Further Amended Statement of Claim, filed 10 April 2012. The further amendments only relate to damages and the date of the plaintiff’s fall. This does not effect the admissions previously made. This paragraph sets out paragraph 5 as it appears in the Further Amended Statement of Claim.

[13]Amended Defence of the Defendant, filed 22 August 2011, paragraph 4.

[14]T 1-21, ll 53-55. He said at T 1-22, ll5-20 a Scania was the only other truck he had driven which was a “cabover” (i.e. cab over engine) but there were pronounced teeth along the whole of the steps to grab the bottom sole of his shoe. He said at T 1-12, ll 1-2 he had driven this vehicle for a little while when he worked for Latters from 2006.

[15]T 1-13, ll 29-34.

[16]T 1-24, ll2-8.

[17]T 1-20, ll 23-26. Although the plaintiff does not here specifically refer to the right handle, in context this was the clear meaning of his evidence.

[18]T 1-20, l 30 to T 1-21, l 51.

[19]According to the 23 July 2010 InterSafe report the plaintiff was 90-95kg at the time of the incident (see page 2, paragraph 2).

[20]T 1-28, ll 20-23.

[21]T 1-29, l 56 to T 1-30, l 25.

[22]T 1-40, l 46 to T1-41, l 16

[23]T 1-42, l 55 to T1-43, l 1

[24]T 1-43, ll 15-38

[25]This report which is Exhibit 3 was co-authored by Mr McDougall also of InterSafe. The evidence was that Mr McDougall also supervised the preparation of the 23 July 2010 report by Mr Dargusch, but did not sign it due to an oversight. He agreed with the opinions expressed in the earlier report (See T 2-67 ll32-35).

[26]T 1-43, ll 53-55.

[27]According to the 23 July 2010 InterSafe report, the plaintiff was “5 feet 6 inches / 167cm” (see page 2, paragraph 2).

[28]T 1-45, ll 4-21.

[29]See page 6 of the report. The caption is “Mr Schmidt’s initial movement onto the top tread.”

[30]T 1-37, ll 5-28.

[31]T 1-45, ll 28-32.

[32]See page 10 of the report.

[33]T 1-50, l 47 to T 1-52, l 18.

[34]T 1-45, ll 57-58.

[35]T 1-46, ll 1-5.

[36]Ibid, ll 53-56.

[37]T 1-47, ll 3-6.

[38]InterSafe report, 18 February 2011, page 4.

[39]Forensic Engineering Consulting report, 1 August 2011, page 5, paragraph 14.

[40]Exhibit 5.

[41]Forensic Engineering Consulting report, 1 August 2011, page 2, first paragraph.

[42]Ibid.

[43]Ibid, fourth paragraph.

[44]Ibid, third paragraph.

[45]Ibid, first paragraph.

[46]InterSafe report, 18 February 2011, page 4.

[47]Forensic Engineering Consulting report, 1 August 2011, page 2, first paragraph.

[48]InterSafe report, 18 February 2011, pages 4-9.

[49]Ibid, page 17, paragraph 3.3.

[50]Ibid, pages 6 and 7.

[51]Exhibit 4.

[52]His Curriculum Vitae is part of the two InterSafe reports on which his name appears. An attachment to this document was Exhibit 9. The attachment specifically related to his experience with vehicle access system design and driver training.

[53]T2-68 l 20 to T2-69 l 15.

[54]T2-69, ll 49-58.

[55]T 2-70 ll 24-27.

[56]His Curriculum Vitae is part of the three InterSafe reports. An attachment to this document is Exhibit 8 which addresses similar matters as Exhibit 9 in relation to Mr McDougall.

[57]T2-78, ll 14-30.

[58]T2-77, l 56 to T2-78, l 12; T2-79, ll 10-26.

[59]InterSafe report, 23 July 2010, pages 8-10.

[60]Forensic Engineering Consulting report, 1 August 2011, page 4, paragraph 10.

[61]This description is adopted from the Forensic Engineering Consulting Report, 1 August 2011, page 4, paragraph 11, as a convenient summary of the effect of these reports. Dr Grigg states here that this  is recognised to be the case “despite efforts by manufacturers to improve the designs.”

[62]InterSafe Report, 18 February 2011, page 13.

[63]T2-70, ll 11-12.

[64]T2-71, ll 14-20.

[65]T2-71, ll 42-48; T2-72, ll 9-12.

[66]T2-72, ll 1-7.

[67]T2-71, ll 21-31.

[68]T2-72, ll 18-21.

[69]Ibid, ll 30-36.

[70]T2-72; l 44 to T2-73, l 1.

[71]T2-73, ll 3-7.

[72]T2-73, ll 55 to T2-74, l 3.

[73]T2-76, ll 22-23.

[74]T2-74, l 20 to T2-76, l 23.

[75]He said he would have driven the truck involved in the incident at some stage (T 2-56, ll 30-40).

[76]T 2-55, ll 4-17.

[77]Ibid, ll 31-36.

[78]He said that at the time of the plaintiff’s fall there would have been about 30 semi-trailer drivers (T 2‑57, ll 45‑54).

[79]T 2-62, ll29-35.

[80]T2-66, ll 5-9.

[81]T 2-64, ll 30-32.

[82]T 2-64, ll 49-58.

[83]T 2-84, ll 14-15. Dr Grigg’s abridged Curriculum Vitae (July 2011) is attached at page 25 of the 1 August 2011 Forensic Engineering Consulting report.

[84]Forensic Engineering Consulting report 1 August 2011, page 3 paragraph 5.

[85]Ibid, paragraph 6.

[86]Ibid, page 19, Attachment E.

[87]Ibid, page 22, Attachment G.

[88]Ibid, page 17, Attachment D.

[89]Ibid, page 4, paragraph 7.

[90]Ibid, paragraph 8.

[91]Ibid, paragraph 10.

[92]Ibid, paragraph 11.

[93]Ibid, paragraph 12.

[94]Ibid, page 5, paragraph 13.

[95]Ibid, paragraph 14.

[96]Ibid, paragraph 15.

[97]Ibid, page 6, paragraph 18.

[98]Ibid, Conclusions, paragraphs 1-4.

[99]T 2-82, ll 16-34.

[100]Forensic Engineering Consulting report, 5 April 2012, page 1, paragraph 2.1.

[101]Ibid, subparagraph (i).

[102]Ibid, subparagraph (iii).

[103]Ibid, subparagraph (iv).

[104]Ibid, subparagraph (v).

[105]Ibid, subparagraph (vi).

[106]Ibid, subparagraph (vii).

[107]Ibid, subparagraph (ix).

[108]T2-84, ll 24-31.

[109]T2-85, ll 11-13.

[110]T2-86, l 57 to T2-87, l 1.

[111]T2-85, ll 5-9.

[112]Ibid, ll 24-28.

[113]Ibid, ll 43-49.

[114]T2-85, l 51 to T2-86, l 12.

[115]T2-86, ll 41-45.

[116]T2-87, ll 2-5.

[117]Ibid, l 7.

[118][2008] QSC 29, per Chesterman J at [26].

[119](supra) at [27].

[120](1959) 101 CLR 298.

[121](supra) at 304-5.

[122](supra) at 305.

[123]See para 4.9.

[124][2000] QSC 161 per de Jersey J (as he then was); [2001] QCA 101 where the appeal was dismissed.

[125][2000] QSC 161 at [6].

[126][2001] QCA 101 at [17].

[127]See [14] of this judgment.

[128]Ibid, [22].

[129]Ibid, [19].

[130]Ibid, [14].

[131]Ibid, [4].

[132]Ibid, [5] and [59].

[133]Ibid, [3].

[134]Ibid, [19]. This was in the context of his evidence about having purchase on the first step, moving his left hand back to grab the left handrail, and moving his left foot to get into a position to put it on the top step.

[135]T1-41, ll 36-46.

[136]See, [7] of this judgment

[137]Ibid, [19] where he also described the positioning of the boot on the top tread as “about halfway”, and “at least half of it”. He also said it was “less than three quarters.”

[138]Ibid.

[139]Ibid, [14].

[140]Ibid, [16].

[141]Ibid, [21].

[142]Ibid, [17].

[143]Ibid, [21].

[144]Ibid.

[145]Ibid, [14].

[146]Ibid, [16].

[147]Ibid, [19] and [20].

[148]Ibid, [83].

[149]Ibid, [21].

[150]Ibid, [17].

[151]Ibid, [3].

[152]Ibid, [8] at 5(f)(ii).

[153]T1-46 ll 53-56.

[154]See [56] and [57]of this judgment.

[155]Ibid, [57]. As set out at [55] “line contact” refers to a single line of contact, only or contact with an edge on the step and a line along the shoe.

[156]Ibid, [8] at 5(g).

[157]Ibid [57].

[158]Ibid, [9].

[159]Ibid, [80].

[160]Ibid, [85].

[161](1980) 146 CLR 40 at 44.

[162](1932) AC 562 at 580.

[163](1980) 146 CLR 40 at 47-48.

[164](Supra) at 48. See also Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431 per Mason CJ., Deane, Dawson and Gaudron JJ in which it was said “a risk may constitute a foreseeable risk even though it is unlikely to occur.”  (applied in Carlile v Hegedus & Ors [2003] QSC 323 at [43] per Muir J).

[165]Nagle (supra) at 431, applied in Carlile at [43].

[166](1982) 56 ALJR 912 at 913.

[167](Supra) at 913.

[168](1984) 155 CLR 306 at 311-313.

[169](1989) 167 CLR 78 at 90.

[170](Supra) at 92-93.

[171][2003] QSC 323 at [42] applying Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; see also McLean’s Roylen Cruises Pty Ltd v McEwan (1984) 58 ALJR 423 at 425.

[172](1956) 96 CLR 18 at 26; see Carlile at [44].

[173](1963) 108 CLR 362 at 368, 369; see Carlile at [47].

[174](1984) 155 CLR 306 at 313.

[175](Supra) at 314.

[176](1954) 100 CLR 225 at 229.

[177](Supra) at 230.

[178]Ibid.

[179](1984) 58 ALJR 423 at 425, Mason, Wilson, Brennan and Dawson JJ agreed.

[180]Ibid.

[181][2000] QSC 161 at [15].

[182](Supra) at [10].

[183](Supra) at [15].

[184][2001] QCA 101.

[185](Supra) at [16].

[186](Supra) at [21].

[187][2005] QCA 228.

[188](Supra) at [15]-[16].

[189](Supra) at [17].

[190][1959] AC 604.

[191][2008] QSC 29 at [42].

[192][2009] NSWCA 210.

[193](Supra) at [32].

[194][2011] QCA 59 at [22].

[195](2005) 223 CLR 422.

[196](Supra) at [126]-[127].

[197]Bourk at [40] applying Miller v Livingstone [2003] QCA 29 referring with approval to the judgment of Lord Watson in Wakelin v London and South-Western Railway Co (1886) 12 App Cas 41 at 47.

[198][2011] QCA 59 at [76].

[199](1973) 1 ALR 125.

[200](Supra) at 142-143.

[201][2000] QSC 161 at [13].

[202](1989) 167 CLR 78 at 88-89. The earlier decision was Sydney City Council v Dell’Oro (1974) 132 CLR 97.

[203]Amended Defence of the Defendant, filed 22 August 2011, para 3.

[204]See [124] of this judgment.

[205]Ibid, [77].

[206]Ibid, [64].

[207]Ibid, [66].

[208]Ibid, [80]. I note that as set out Dr Grigg has qualified this statement.

[209]Ibid, [81]. I again note that as set out Dr Grigg has qualified this statement.

[210]It is submitted that this and other published data referred to in the evidence of Messrs McDougall and Dargusch, and the 23 July 2010 InterSafe report support the assertion that truck drivers should be instructed as to the safe method of exiting the cabin of vehicles.

[211]Mr Kimmins submitted at T3-12, ll 1-2 that it is open to me to find on the balance of probabilities that there was now a system in place because this was Mr Sanders’ initial evidence.

[212]See [37] of this judgment.

[213]Ibid [68].

[214]Ibid [67].

[215]Ibid [52].

[216]T3-4, l 42 to T3-5, l 13.

[217]T3-10, ll 28-32.

[218]See [61] of this judgment.

[219]Ibid, [63].

[220]Ibid, [62].

[221]T3-44, ll 31-32.

[222]However, as I have found the plaintiff has proved the means by which he slipped and fell.

[223]T3-45, ll 21-24.

[224]T3-27, l 53 to T3-28, l 3.

[225]Williams v Mt Isa Mines Ltd [2001] QCA 101 at [15] per McMurdo P with whom Ambrose J agreed.

[226][2003] QSC 323 at [42].

[227]O'Connor at 230.

[228]Lusk at [76] per Margaret Wilson AJA.

[229](1980) 146 CLR 40 at 47.

[230]See [63] of this judgment.

[231]Ibid [77].

[232]Ibid [43]. As there stated these publications commence from 1980.

[233]Ibid.

[234]Ibid.

[235]Ibid.

[236]Ibid [60].

[237]Ibid [67].

[238]Ibid [8]. See Amended Defence of Defendant, filed 22 August 2011, paragraph 1 with reference to paragraph 5(g) of the Amended Statement of Claim.

[239]Ibid [50].

[240]Ibid [83].

[241]Ibid [85]; See also [95] where he says that the grip available on smooth stainless steel, such as that on the nose radius treads is likely to be low when wet.

[242]Ibid [16].

[243]Ibid [67].

[244]Ibid [45].

[245]As set out at [33] viewing the treads by looking down from the cabin the offset of the top step which is visible was between 0.6 cm on the left and 4.4 cm on the right. As set out in [29]. The top step is approximately 36 cm below the cabin floor.

[246]See [7] of this judgment.

[247]Ibid [11].

[248]Ibid [47].

[249]Ibid [42].

[250]Ibid [19] and [20].

[251]Ibid [75].

[252]Ibid [76].

[253]Ibid [78]. See also [94].

[254]Ibid [95].

[255]Ibid. See also [61] and [66].

[256]Ibid [11].

[257]Ibid [18].

[258](1984) 155 CLR 306 at 311-313, see [126] of this judgment.

[259](1980) 146 CLR 40 at 47-48.

[260]See [143] of this judgment with reference to Lusk at [22].

[261]See [144] of this judgment with reference to Vairy at [12].

[262]This is in accordance with the duty to provide a safe system of work identified with reference to the circumstances in Reck as set out at [139] above. I consider that this is also applicable in the circumstances of this case.

[263]See [64] of this judgment.

[264]Ibid [11].

[265]Ibid [47].

[266]Ibid [37].

[267]Ibid [46].

[268]In the authors’ experience a practical demonstration is also required.

[269][2005] QCA 228 at [16].

[270](1984) 155 CLR 306 at 313; see [131] of this judgment.

[271]See (1954) 100 CLR 225 at 230; [133] of this judgment.

[272](1984) 58 ALJR 423 at 425; see [134] of this judgment.

[273]See [140] of this judgment.

[274]Ibid [66].

[275]In Williams the appellant described the process of getting out of the truck as akin to alighting from his own Toyota Landcruiser. In that case the distance between the seat of the vehicle and the ground was 110 cm. See [2000] QSC 161 at [8] and [11]; [2001] QCA 101 at [9]. In the present case the equivalent distance was 1,585 mm (see [27]). At [2000] QSC 161 at [11] de Jersey J considered it difficult to see why, what was, akin to jumping down two ordinary steps would impose unreasonable force on the body.

[276]In accordance with my finding in the present case, this is not a case where that an employee driving a Volvo prime mover can adopt a number of ways to safely exit the cabin. The evidence is there is only one safe method. It is not a case of just leaving it to an employee to find a safe method.

[277]See [217] to [220] of this judgment.

[278]See [83] of this judgment.

[279]Ibid [73].

[280]Ibid.

[281]Ibid; see also [54].

[282]Ibid.

[283]Ibid [52].

[284]Ibid [81].

[285]See discussion at [187].

[286]See [145] of this judgment.

[287]Ibid [140].

[288]Ibid [64].

[289]Ibid [132].

Close

Editorial Notes

  • Published Case Name:

    Schmidt v S J Sanders Pty Ltd

  • Shortened Case Name:

    Schmidt v S J Sanders Pty Ltd

  • MNC:

    [2012] QDC 148

  • Court:

    QDC

  • Judge(s):

    Irwin DCJ

  • Date:

    22 Jun 2012

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2012] QDC 14822 Jun 2012Mr Schmidt suffered personal injuries when he fell whilst exiting from the cabin of a Volvo prime mover in the course of his employment. The defendant was ordered to pay $225,000 clear of the WorkCover Queensland refund as damages for personal injuries and consequential loss: Irwin DCJ.
Appeal Determined (QCA)[2012] QCA 35818 Dec 2012Appeal dismissed with costs: McMurdo P, Gotterson JA, Boddice J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Bourk v Power Serve Pty Ltd [2008] QSC 29
4 citations
Jump To
Cite 1 - [2008] QSC 29
Cite 2 - [2008] QSC 29
Cite 3 - [2008] QSC 29
Cite 4 - [2008] QSC 29
Bus v Sydney County Council (1989) 167 CLR 78
4 citations
Jump To
Cite 1 - (1989) 167 CLR 78
Cite 2 - (1989) 167 CLR 78
Cite 3 - (1989) 167 CLR 78
Cite 4 - (1989) 167 CLR 78
Carlile v Hegedus [2003] QSC 323
6 citations
Jump To
Cite 1 - [2003] QSC 323
Cite 2 - [2003] QSC 323
Cite 3 - [2003] QSC 323
Cite 4 - [2003] QSC 323
Cite 5 - [2003] QSC 323
Cite 6 - [2003] QSC 323
Davie v New Merton Board Mills Limited (1959) AC 604
3 citations
Jump To
Cite 1 - (1959) AC 604
Cite 2 - (1959) AC 604
Cite 3 - (1959) AC 604
DIB Group Pty Ltd trading as Hill & Co v Cole (2009) NSWCA 210
1 citation
Jump To
Cite 1 - (2009) NSWCA 210
Dibb Group Pty Ltd trading as Hill & Co v Cole [2009] NSWCA 2010
1 citation
Jump To
Cite 1 - [2009] NSWCA 2010
Donoghue v Stevenson (1932) AC 562
2 citations
Jump To
Cite 1 - (1932) AC 562
Cite 2 - (1932) AC 562
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125
2 citations
Jump To
Cite 1 - (1973) 1 ALR 125
Cite 2 - (1973) 1 ALR 125
Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 C.LR. 18
3 citations
Jump To
Cite 1 - (1956) 96 C.LR. 18
Cite 2 - (1956) 96 C.LR. 18
Cite 3 - (1956) 96 C.LR. 18
Jones v Dunkel (1959) 101 CLR 298
3 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Cite 3 - (1959) 101 CLR 298
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
3 citations
Jump To
Cite 1 - [2011] QCA 59
Cite 2 - [2011] QCA 59
Cite 3 - [2011] QCA 59
McLean v Tedman (1984) 155 CLR 306
6 citations
Jump To
Cite 1 - (1984) 155 CLR 306
Cite 2 - (1984) 155 CLR 306
Cite 3 - (1984) 155 CLR 306
Cite 4 - (1984) 155 CLR 306
Cite 5 - (1984) 155 CLR 306
Cite 6 - (1984) 155 CLR 306
McLean's Roylen Cruisers Pty Ltd v McEwan (1984) 58 ALJR 423
4 citations
Jump To
Cite 1 - (1984) 58 ALJR 423
Cite 2 - (1984) 58 ALJR 423
Cite 3 - (1984) 58 ALJR 423
Cite 4 - (1984) 58 ALJR 423
Miller v Council of the Shire of Livingstone [2003] QCA 29
2 citations
Jump To
Cite 1 - [2003] QCA 29
Cite 2 - [2003] QCA 29
Nagle v Rottnest Island Authority (1993) 177 CLR 423
3 citations
Jump To
Cite 1 - (1993) 177 CLR 423
Cite 2 - (1993) 177 CLR 423
Cite 3 - (1993) 177 CLR 423
Neill v NSW Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
1 citation
Jump To
Cite 1 - (1963) 108 CLR 362
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
4 citations
Jump To
Cite 1 - (1954) 100 CLR 225
Cite 2 - (1954) 100 CLR 225
Cite 3 - (1954) 100 CLR 225
Cite 4 - (1954) 100 CLR 225
Reck v Queensland Rail [2005] QCA 228
3 citations
Jump To
Cite 1 - [2005] QCA 228
Cite 2 - [2005] QCA 228
Cite 3 - [2005] QCA 228
Sydney City Council v Dell'Oro (1974) 132 CLR 97
1 citation
Jump To
Cite 1 - (1974) 132 CLR 97
Vairy v Wyong Shire Council (2005) 223 CLR 422
2 citations
Jump To
Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Wakelin v London & Southwestern Rye Co (1886) 12 App Cas 41
2 citations
Jump To
Cite 1 - (1886) 12 App Cas 41
Cite 2 - (1886) 12 App Cas 41
Webb v South Australia (1982) 56 ALJR 912
3 citations
Jump To
Cite 1 - (1982) 56 ALJR 912
Cite 2 - (1982) 56 ALJR 912
Cite 3 - (1982) 56 ALJR 912
Williams v Mount Isa Mines Limited [2000] QSC 161
7 citations
Jump To
Cite 1 - [2000] QSC 161
Cite 2 - [2000] QSC 161
Cite 3 - [2000] QSC 161
Cite 4 - [2000] QSC 161
Cite 5 - [2000] QSC 161
Cite 6 - [2000] QSC 161
Cite 7 - [2000] QSC 161
Williams v Mt Isa Mines Ltd [2001] QCA 101
6 citations
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Cite 1 - [2001] QCA 101
Cite 2 - [2001] QCA 101
Cite 3 - [2001] QCA 101
Cite 4 - [2001] QCA 101
Cite 5 - [2001] QCA 101
Cite 6 - [2001] QCA 101
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
5 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40
Cite 4 - (1980) 146 C.L. R. 40
Cite 5 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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