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Humphries v Downs Earthmoving Pty Ltd and another[2015] QDC 323

Humphries v Downs Earthmoving Pty Ltd and another[2015] QDC 323

DISTRICT COURT OF QUEENSLAND

CITATION:

Humphries v Downs Earthmoving Pty Ltd and another [2015] QDC 323

PARTIES:

BRETT ANTHONY HUMPHRIES

(Plaintiff)

AND

DOWNS EARTHMOVING PTY LTD

(First Defendant)

AND

COOLOOLA SECURITY PTY LTD trading as DARLING DOWNS SECURITY (ABN 28 091 393 449)

(Second Defendant)

FILE NO/S:

3580 of 2014

PROCEEDING:

Trial

DELIVERED ON:

11 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16, 17, 18 November 2015

JUDGE:

Bowskill QC DCJ

ORDER:

Judgment for the defendants

CATCHWORDS:

TORTS – NEGLIGENCE – PERSONAL INJURIES – Dispute as to liability and quantum – Plaintiff employed as security patrol officer by second defendant, which was engaged to provide security patrol services at the premises occupied by the first defendant – Plaintiff injured ankle when tripping and falling on concrete embankment - Scope of the duty of care owed by the first defendant, as occupier, to the plaintiff – Relevance of the relationship between the parties to the judgment about what reasonableness required of the first defendant – Whether plaintiff took reasonable care for his own safety - Whether a reasonable employer in the position of the second defendant would have taken precautions in relation to the risk of injury – Quantum – Whether the plaintiff’s earning capacity diminished as a result of accident caused injury.

Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305C, 305D, 305H, 306J

Workers Compensation and Rehabilitation Regulation 2003 (Qld)

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Allianz Australia Insurance Limited v McCarthy [2012] QCA 312

Czatyrko v Edith Cowan University (2005) 79 ALJR 839

Davis v Nolras [2005] NSWCA 379

Erickson v Bagley [2015] VSCA 220

Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12

Jones v Bartlett (2000) 205 CLR 166
Kennedy v Queensland Alumina Ltd [2015] QSC 317

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Minogue v Rudd [2013] NSWCA 345

Nichols v Curtis [2010] QCA 303

Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234

Turner v South Australia (1982) 42 ALR 669

Uniting Church in Australia Property Trust (NSW) v Takacs (2008) 174 IR 328

Vairy v Wyong Shire Council (2005) 223 CLR 422

Vozza v Tooth & Co Ltd (1964) 112 CLR 316

COUNSEL:

AD Stobie for the Plaintiff 

A Collins for the First Defendant

EJ Williams for the Second Defendant

SOLICITORS:

Turner Freeman for the Plaintiff

Carter Newell for the First Defendant

Jensen McConaghy for the Second Defendant

Introduction

  1. [1]
    The plaintiff was formerly employed by the second defendant (Darling Downs Security) as a security guard.  The first defendant (Downs Earthmoving) had engaged the services of Darling Downs Security, by contract, to provide security services at its premises at 4 Rocla Court, Toowoomba (the premises).  In the early hours of 9 April 2013, the plaintiff was at those premises in his capacity as a security guard, when he injured his ankle.  By these proceedings, he seeks to recover damages for that injury, which he says was caused by the negligence of both his employer, Darling Downs Security, and the occupier of the premises, Downs Earthmoving.
  2. [2]
    The issues to be determined were agreed by the parties to be as follows:[1]

“1. What was the scope of the duty of care which the first defendant owed to the plaintiff?

  1. If there was any defect in the premises was the first defendant under any duty to:
  1. (a)
    remedy the defect; or
  1. (b)
    give the plaintiff warning of the said defect?
  1. Does the Civil Liability Act 2003(“CLA”) apply and, if so, was the risk an obvious risk within the meaning of section 13 CLA?[2]
  1. Has the first defendant breached the duty of care which it owed to the plaintiff?
  1. Did the second defendant take all reasonable steps to discharge its duty to the plaintiff?
  1. Has the second defendant breached the duty of care which it owed to the plaintiff?
  1. If there is a breach of a duty of care by either defendant, has the plaintiff caused, or alternatively, contributed to his own loss by reason of failing to take care for his own safety?
  1. If there is a breach of duty by both defendants, how should liability be apportioned between them?
  1. Quantum of damages.”

Pleadings

  1. [3]
    The following matters are not in issue:
    1. (a)
      Prior to 9 April 2013 Downs Earthmoving had entered into an agreement with Darling Downs Security under which the latter agreed that it would provide security services to the premises (the agreement).[3]The plaintiff was employed by Darling Downs Security as a patrol officer.
    2. (b)
      In the early hours of the morning of 9 April 2013, the plaintiff, in the course of his employment, went to the premises.  He was with another officer employed by Darling Downs Security, John Tosi.
    3. (c)
      At about 2.00am on 9 April 2013, and while the plaintiff was walking along the driveway of the premises, the plaintiff’s right foot stepped onto a “concrete embankment” (also referred to as a drain) that was located at the eastern side of a shed on the premises; the plaintiff slipped and fell after stepping onto the concrete embankment and suffered an injury to his right ankle (the incident).[4]
    4. (d)
      As part of, or pursuant to, the agreement, Darling Downs Security had conducted a risk assessment of the premises on 16 January 2012 (at which time the premises were in materially the same condition as at 9 April 2013) which identified that the premises “can get dark in places” and noted the “corrective action required” was “carry your torch”.[5]
  2. [4]
    The plaintiff’s case is that it was dark at the time of the incident and there was no artificial lighting in the vicinity of the concrete embankment.[6]He pleads that, “immediately preceding the incident”, he had not seen the concrete embankment; the presence of the concrete embankment was not then known to him, and was not then apparent to him; and the concrete embankment was not visible to him, because it was dark.[7]
  3. [5]
    In relation to the allegation that the concrete embankment “was not visible to him”:
    1. (a)
      Downs Earthmoving says if that was so, it was because the plaintiff had failed to use his torch to illuminate his path of travel; and failed to heed instructions provided by his employer to do so;[8]and
    2. (b)
      Darling Downs Security likewise says the concrete embankment was, or ought to have been visible to the plaintiff (either by virtue of his own torch, or Mr Tosi’s torch); and says, further, that on the basis of certain documents (the “first night brief” and a risk assessment) provided to the plaintiff, the presence of the concrete embankment ought to have been known to the plaintiff.[9]
  4. [6]
    The plaintiff pleads, in effect, that:
    1. (a)
      he was using a torch – but that this did not illuminate the concrete embankment, because he was reasonably using his torch to scan the area at head height for possible threats such as an intruder; and
    2. (b)
      although he was provided with the first night brief, he was not provided with the risk assessment and, in any event, neither of those documents provided any proper or adequate or timely instructions about the presence of the concrete embankment.[10]
  5. [7]
    In so far as the occupier, Downs Earthmoving, is concerned, the plaintiff pleads that his injury was caused by its negligence by, in particular:
  1. (e)
    failing to take any, or any reasonable measures to ensure that the concrete embankment was adequately lit so that persons, including the plaintiff, could see the concrete embankment;
  1. (f)
    failing to give persons, including the plaintiff, any, or any adequate, notice or warning regarding the concrete embankment by way of verbal and/or written communication and/or signage and/or roping of the concrete embankment;
  1. (g)
    failing to take any, or any reasonable measures to ensure that any defects in the driveway were remedied to render it safe for persons including the plaintiff;
  1. (h)
    failing to install a steel grate, or take other steps to ensure that the concrete embankment did not create a potential hazard;
  1. (i)
    failing to fence or cover or guard or barrier the concrete embankment in order to avoid injury being occasioned to persons, including the plaintiff, walking along the driveway.[11]
  1. [8]
    Downs Earthmoving denies that, and says that its duty did not, as a matter of law, require it to take the steps alleged above, in circumstances where:
    1. (a)
      the plaintiff was an experienced security guard;
    2. (b)
      consequently, Downs Earthmoving was entitled to consider that the plaintiff was or ought to have been skilled in negotiating variable ground surfaces and potential footing hazards in night-dark conditions; and knew or ought to have known (including as a matter of common sense) to use his torch to check his path of travel in those conditions;
    3. (c)
      the plaintiff was employed by a reputable and experienced security contractor engaged by Downs Earthmoving, which had conducted a risk assessment at the premises and identified the very risk of which the plaintiff now complains; and
    4. (d)
      consequently, Downs Earthmoving was entitled to consider that the plaintiff would have been informed of the risk assessment; knew of the risk of which he now complains; would have been supplied with a torch; would have used his torch; and would have been trained (either by his employer, or prior to his employment) in the very activity he was undertaking, being negotiating unfamiliar outdoor surfaces in night-dark conditions.[12]
  2. [9]
    Although the plaintiff admits he was an experienced security guard, he says that his experience as such did not provide him with any particular skill in identifying and avoiding potential night time footing hazards of which he did not have previous knowledge.[13]
  3. [10]
    In so far as the employer, Darling Downs Security, is concerned, the plaintiff pleads that his injury was caused by its negligence by, in particular:
  1. (d)
    failing to conduct a proper risk assessment in relation to the premises;
  1. (e)
    failing to conduct a risk assessment in relation to the premises at night to understand the significance of the night time hazards;
  1. (g)
    failing to request that the first defendant install security lighting at the premises;
  1. (h)
    failing to ensure that the plaintiff was made aware of the presence of the concrete embankment;
  1. (i)
    requiring, permitting or directing the plaintiff to perform the duties of his employment at the premises at night without any prior familiarisation to the premises.[14]
  1. [11]
    Darling Downs Security denies that and pleads that it did take adequate precautions for the safety of the plaintiff, namely, by:
    1. (a)
      providing a MAG rechargeable torch;
    2. (b)
      providing “an induction” to the plaintiff, and various documents (including “an induction” document and “Standard Operating Procedures document”) to the plaintiff when he commenced employment with Darling Downs Security; preparing a risk assessment for the premises, and a first night brief about the premises, both of which were provided to the plaintiff.[15]
  2. [12]
    The extent and consequences of the injury (otherwise agreed to be “a minimal retrocalcaneal bursitis to his right ankle”[16]) suffered by the plaintiff is in issue, as is the quantum of damages claimed, in particular for economic loss.
  3. [13]
    Both defendants also plead that any loss or damage suffered by the plaintiff was caused or contributed to by him failing to exercise reasonable care for his own safety (in particular on the basis that he failed to use his torch to check his vicinity and path of travel, failed to familiarise himself with the risk assessment and first night brief documents, and failed to comply with the instructions in those documents).
  4. [14]
    Each of the defendants also seek contribution from one another, under s 6 of the Law Reform Act 1995 (Qld).

Factual context – evidence and findings

  1. [15]
    The plaintiff is presently aged 27 (born December 1988), and was aged 24 at the time of the incident. 

Plaintiff’s qualifications and employment history

  1. [16]
    The plaintiff completed high school to year 10.  After leaving school, he initially pursued a career as an apprentice chef, but after two or three years, started working as an account manager for Macquarie Regional Radio Network, in Toowoomba.  At the same time, he studied to become a security officer, and completed a certificate 3 in security operations.[17]He worked part time as a security officer from about 2009.  After he finished working for Macquarie Regional Radio Network, he started working more as a security officer, employed by various companies, including Darling Downs Security,[18]in Toowoomba.
  2. [17]
    He described his initial interest in working as a security officer as being on the basis of wanting “to gain experience in that industry to further open opportunities to become a police officer at some stage, or apply to become a police officer at some stage”, although he has not (either before or after the incident the subject of this proceeding) done anything to further that aspiration.[19]He said this was because, prior to the incident, he was not in any rush as he was enjoying his work in the security industry; and post the incident he does not think he could (physically) handle it.[20]
  3. [18]
    He originally worked for Darling Downs Security from about late 2009[21]until about June 2012.[22]The plaintiff said he was initially employed by Darling Downs Security as a patrol officer, but by the time he left he was in a “split role”, working as a business development manager, as well as in the capacity of an armoured covert cash-in-transit officer.[23]
  4. [19]
    The plaintiff left Darling Downs Security in mid-2012 to take up a position he was offered by Sydney Night Patrol (SNP), another security company, which was offering a “more lucrative income”, and an “opportunity to further develop [his] skills in the security industry”.  He was employed as an account manager, for a particular client of SNP, the Brisbane City Council, to which SNP provided security services for “the council’s physical security sites”.  He did not do patrol work.  His role was “to manage staff, do rostering requirements for the relevant sites, ensure that staff were operating within the standard operating procedures, and also attend council meetings in regards to site facilities”. As part of his role, the plaintiff was responsible for ensuring that a risk assessment was done prior to any guard entering one of the Council’s sites (in the sense of requesting that they be done, as opposed to actually conducting the risk assessment) and he also reviewed the risk assessments once they had been done.[24]This job involved him moving to Brisbane.[25]
  5. [20]
    The plaintiff finished his employment with SNP in January 2013.  He explained that he left SNP because he was going through a relationship breakdown, and his then two young children were not getting to see him very often as he was living in Brisbane, so he decided that it was important for him to come home (to Toowoomba) and spend time with his children.[26]
  6. [21]
    After returning to Toowoomba in early 2013, he was re-employed by Darling Downs Security as a patrol officer, which involved checking a number of businesses every night to ensure their security (which he said could range from 100 to 130 checks per night; averaging 10 premises an hour over a 12 hour shift).[27]
  7. [22]
    He also worked for two other security businesses at this time, Ambush Security and Sargent Security.[28]With Sargent Security, he was a “static security officer” at Beef City, which he explained meant he was in an office there.  As the plaintiff explained, he was employed on a casual basis by Darling Downs Security, so he was making up full time hours by working for other security providers as well.[29]
  8. [23]
    As to his return to working as a patrol officer in early 2013, although this was a “step backwards” in terms of his career progression, it suited him at the time, because it gave him the time to spend with his family during a difficult time.[30]
  9. [24]
    He continued to work for Darling Downs Security until July 2013.[31]Following the incident, he had about 4-5 weeks off work.  When he returned to work (which appears to have been in around mid-May 2013), he was given different duties, providing security at a shopping centre, saying that Adrian Carr, his then operations manager, told him he was doing that “because it would have been easier on my foot”.[32]He did that for about 4 months, but said he had difficulties because he was walking and standing for long periods of time, which caused pain in his ankle.[33]
  10. [25]
    In July 2013 he obtained employment with WIN Television, in Toowoomba, as an account manager (a sales role, selling television advertising to customers).  He said he changed roles (to this position) because of the injury to his foot.  He said he was sick of feeling pain in his ankle from walking around a shopping centre.[34]
  11. [26]
    He worked for WIN Television until about February or March 2014, following which he took up another position with Wesfarmers General Insurance (now Insurance Australia Group), as an “area manager”, based in Brisbane,[35]where he remains employed.  He moved to Brisbane because of this role, which also offered more money.[36]His gross income in this role was initially $72,100 per annum, plus superannuation.[37]It is currently around $79,000 per annum, including superannuation.[38]Regarding the move to Brisbane, he explained that the situation with his ex-partner had become more stable by this time, and there was a greater consensus about visitation with his children, which gave him the ability to move to Brisbane.[39]
  12. [27]
    He is studying for a diploma in insurance, which he said will give him opportunities for promotion in that field.[40]His evidence was that there is no reason why he will not receive promotions, in due course, in the future.[41]
  13. [28]
    His income, both at WIN Television, and now at Insurance Australia Group, is more than he was earning as a security guard; and more than he would earn as a security officer.[42]For example, there was agreement that, at the time of his injury, he was earning $500 net per week.[43]Currently, his net weekly earnings are approximately $1,100.[44]Mr Davie, the owner and director of Darling Downs Security, said that, in his business, the usual range of salary for a full time security guard would be about $56,000 to $65,000 per annum.[45]
  14. [29]
    The plaintiff’s evidence was that his job involves working Monday to Friday, and he would consider doing security work on the weekends, to earn extra money, but does not believe he can, due to his ankle injury.  His evidence was that he thinks he could earn $200-$300 on the weekends doing this.[46]    However, he has not applied for any jobs as a security officer, including as a static security officer.[47]

The premises

  1. [30]
    The premises are located at 4 Rocla Court, Toowoomba, which is an industrial area.  Downs Earthmoving owns the whole of the property, but leases out the front part, on which there is a large shed, to another business (Toowoomba Lube & Mechanical[48]).   That shed directly adjoins another shed, to the rear of it, which is occupied by Downs Earthmoving for the purposes of its business and also, at this time, Mr Davage (the director and owner of Downs Earthmoving), who was living there as well.[49]    
  2. [31]
    Looking at the premises from the street, there is a fence and a gate to enter the premises.  Once on the premises, there is a concrete driveway along the left hand side, by which to access the rear of the premises, being the part occupied by Downs Earthmoving.  The concrete driveway is about 4 metres wide.[50]There is a gate across the driveway about half way down, where the Toowoomba Lube & Mechanical shed meets the Downs Earthmoving shed.[51]On the left hand side of the front shed, occupied by Toowoomba Lube & Mechanical, there are four windows along the driveway.[52]
  3. [32]
    There is an area between the driveway, and this shed (before the gate) which is also concreted, and appears to be a drain (also described as a concrete embankment).  The slope of the drain, from the driveway towards the shed, increases as you get closer to the gate.[53]The report of Mr O'Sullivan, relied upon by the plaintiff, contains some additional photographs, and measurements of the drain.  Mr O'Sullivan recorded that, at the start of the drain, the incline is approximately 7º and that gradually increases to an angle of around 38º at the point where the plaintiff says the incident occurred (below the 3rdwindow).[54]On the opposite side of the driveway, there appears to be a large hedge/shrubbery.  The gate opens from the hedge side.[55]
  4. [33]
    Mr Davage said that Downs Earthmoving has owned the property for 25-30 years, and the concrete driveway and drain was probably done “20 odd years ago”.[56]He explained that the “drain” is not actually a drain as such, but was built the way it is for erosion problems, because the building behind the shed occupied by Toowoomba Lube & Mechanical is higher.  He also made the point that, when the middle gate is shut, it is not necessary to go near the drain, because the gate opens on the hedge side; and when it is open, it swings out towards the road, and comes down to about the second window.[57]Mr Davage also said “nobody has hurt themselves and it has been there for 20 odd years and nobody has ever had an accident”.[58]He said he did not think it was a hazard.[59]
  5. [34]
    Mr Davie described the drain as “not an exceptional thing”, saying “it’s a stormwater drain.  It’s on lots of sites”.  He agreed that its presence involves a risk to an officer, losing his footing – but said “that’s why you use a torch and watch where you’re going”.  He also noted that “it’s also not in your general walk path” its “off to one side”.  He considered it was captured by the reference to “uneven ground” on the risk assessment.[60]
  6. [35]
    There is no access to the rear of the property, from the right hand side of the shed occupied by Toowoomba Lube & Mechanical.[61]
  7. [36]
    At the back of the premises, it seems there was often a lot of clutter and debris of various kinds around the place (including bits and pieces of machinery), the level of which was said to vary from time to time.[62]Mr Davage described “collecting junk” as his hobby.[63]
  8. [37]
    As at 9 April 2013, there was no operating lighting along the driveway on the left hand side of the premises.[64]I accept Mr Davage’s evidence that there was, at that time, a fluoro light installed towards the top of the Toowoomba Lube & Mechanical shed,[65]but the evidence does not support a finding that any such light was working, or on, when the plaintiff and John Tosi went to the premises on 9 April 2013.  Subsequently, there have been 3 lights installed along the driveway, one on the Toowoomba Lube & Mechanical shed, and two on the Downs Earthmoving shed.[66]The cost of this was just under $2,000.[67]Mr Davage said the new light was installed because a prime mover parked there, but seemed to say it was “for security too”.[68]Mr Davage no longer engages security services.[69]

The agreement between Darling Downs Security and Downs Earthmoving

  1. [38]
    Mr Davage said he had previously, going back 15 years or more, had arrangements with other security companies.  But at the time of this incident, there was an agreement with Darling Downs Security, which he said “they took over from somebody else originally”.  According to Mr Davie’s evidence, Downs Earthmoving had previously been a client of “Lombards Security”,[70]and Darling Downs Security acquired the “patrol clients” from Lombards at some stage, including Downs Earthmoving.[71]There was no written agreement in evidence, but the agreement is apparent from the evidence of Mr Davage and Mr Davie, the evidence of payment of a monthly bill (around $300 per month),[72]and the “first night brief”.
  2. [39]
    The arrangement between Downs Earthmoving and Darling Downs Security as described by Mr Davage was that a security officer was to come through the gates (the front gate, and the gate separating Toowoomba Lube & Mechanical’s premises from Downs Earthmoving’s premises), walk around the back, shine a torch, check the doors, and then leave.[73]Mr Davage described Toowoomba Lube & Mechanical as “nothing to do with me”, and he was not paying for its premises to be inspected.
  3. [40]
    In so far as Darling Downs Security is concerned, the arrangement is documented in the “first night brief”[74](referred to below) which records that there were to be 3 security checks per night (on run 467) and 1 (if Saturday) or 2 (if Sunday or a public holiday) daytime checks (on run 82).
  4. [41]
    Mr Davie understood that it was only the part of the premises under the control of Down’s Earthmoving that was to be patrolled, although he seemed to say they would have a look at the front shed because it “was on the way”, and if someone broke in there, they could get into Mr Davage’s shed via an internal door.[75]He had elsewhere described checking the windows as you walk down the drive way, albeit that this is done “in a glance”.[76]
  5. [42]
    The plaintiff said he was not aware of that limitation - he said understood he was to check the whole building.[77]
  6. [43]
    Mr Davage said he had no experience in the security industry.[78]

Training

  1. [44]
    The plaintiff described some general training that he received in the course of completing his certificate 3 in security operations (including basic training in relation to the Criminal Code, defensive techniques, inspecting premises, how to deal with intoxicated persons, how to confront an offender; and a “basic outlay of what .. to do” in terms of opening gates, locking locks etc).[79]
  2. [45]
    The plaintiff agreed that, not only on the Downs Earthmoving site, but any number of sites he may have to visit on any particular night, there would be hazards of various kinds that you need to keep a lookout for; and agreed that part of his training and experience is that the torch is constantly being used to be on the lookout for things on the ground, or things that you could fall over etc.[80]
  3. [46]
    In relation to dangerous items that are on premises that could cause harm, he was asked whether he had specific training, or “common sense training”, to which he responded:  “I guess it’s a bit of both, to be honest… when you’re given training in that regard, obviously they can’t give you examples of sites because there’s many sites.  So it would be just a general training in regards to looking at the hazards”.[81]He also agreed that, with experience over time (noting that he commenced security work in 2009) a security officer develops a level of awareness of the risks and hazards that exist in security operations, which would be greater than the inexperienced, untrained, ordinary person.[82]
  4. [47]
    Mr Tosi’s evidence was to a similar effect, saying that as a security officer, you enter upon any industrial site at night conscious that there are potential dangers everywhere, and said that being aware of potential dangers, and the need to keep a lookout, turn your torch on, be slow and careful, is something that does not exist in training, it is more common sense, something you learn on the job.[83]
  5. [48]
    The plaintiff described learning practical skills whilst working for Darling Downs Security, although said training provided by Darling Downs Security was not based on giving you “knowledge as to how to be a security officer”, but rather information regarding the different premises you had to attend, and what was expected of you at that premises (for example, how many times a night to attend, which gates to go into etc).[84]
  6. [49]
    The plaintiff described the patrol work at Darling Downs Security, as at February 2013, as being organised into four “runs”.  He did not work on all the runs, and said he was not trained specifically on any of the runs.  He said he was previously (when working there up to June 2012) trained on two runs (run 468 and run 467), but Downs Earthmoving was not on either of those.[85]It was not controversial that the plaintiff had received training at Darling Downs Security (in Oct 2009 and January 2010), but that this was not on a run that included Downs Earthmoving.   The plaintiff said that training involved going on patrol for a few nights with another patrol officer, during which you would be trained on “what is required on the site”, in terms of what door needs to be checked or “carded”, what gate needs to be locked etc.[86]That was consistent with the evidence of Mr Davie.
  7. [50]
    Otherwise, patrols were done by security officers on their own.[87]
  8. [51]
    The plaintiff’s evidence was that when he returned to Darling Downs Security (in early 2013) he asked the operations manager, Adrian Carr, for training,[88]and “it was denied on the basis that I’d done it all before”.[89]
  9. [52]
    Mr Davie said that he could not recall the plaintiff asking to be re-trained.  Mr Davie’s evidence was that the plaintiff had said he was trained by someone in Lombard Security, when he had worked for them.  What Mr Davie said is:

“He … told us he was a patrol officer for Lombard’s and worked in that – in that area of town that Downs Earthmoving was in, and when we put him back on patrols, and I asked if he wanted to jump in at night and sit in with the guys.  He goes, oh no, I’ve done six, seven with you and done the other clients at Lombard’s.  With – with Lombard’s.  I don’t need to be shown the ropes.  I’m pretty sure I can figure it out.  I’m not silly.  So I let him go.  He – he’s – he’s a lot quicker and sharper on the uptake than most patrol officers so I didn’t have any reason to doubt him.  You know, if we do an alarm response, we’ve never been there before, but you still take your usual care and attention to details.”[90]

  1. [53]
    Mr Davie clarified that the plaintiff did not specifically say he was trained at Lombards for patrol work at Downs Earthmoving.[91]The plaintiff agreed he had previously worked for Lombard Security, but said he did not do patrol work for them.[92]

Documentation

  1. [54]
    The way that employees know what they are to do with each of the properties required to be inspected on a “run” is by reference to a document called the “first night brief”, which is prepared for each client, and which sets out how many calls (or visits) are required; and what type of service is to be provided.
  2. [55]
    The plaintiff accepted that he had seen or been provided with the “first night brief” for Downs Earthmoving,[93]prior to 9 April 2013; save that he said he could not recall the words “Site risk assessment completed. (Behind this brief)” being on the document when he had seen it.[94]The first night brief is dated 16 January 2013.   Mr Davie’s evidence was that those words were definitely there, having regard to the date of the document.[95]The first night brief was kept in a “brief book”, in alphabetical order for all the clients on a particular run, which was in a bag like a laptop bag,[96]which would be taken by the patrol officer on their run.[97]Mr Davie said it was standard practice for the risk assessment to be put behind the first night brief in this folder.[98]Mr Tosi also said “every client has a risk assessment attached to its brief”.[99]
  3. [56]
    The plaintiff explained that you would check the first night brief on the first night you attended a particular site, and then review it subsequently only if you needed to update your memory on what had to be done.[100]
  4. [57]
    In terms of what had to be done at Downs Earthmoving, the first night brief reads as follows:

“Semi internal checks.  Checking for trespass, vandalism, fire or break + enter.

Cards to be used on accessible doors and pierce padlocks through cards, not rolled up in it.

Owner lives in back shed.  Be sure to secure middle gate.

Site safety:  be aware of uneven ground, slippery when wet, gets dark in places.  (Debris)

Carry your torch, watch your footing slips trips and falls.

Semi residential, please be mindful of your noise and lights (Owner may be asleep onsite).

Site risk assessment completed.  (Behind this brief).”

  1. [58]
    A “semi internal check” involves walking around the perimeter of the building, inside the fence line, but not actually entering inside the building.[101]
  2. [59]
    The plaintiff said he was not shown the risk assessment.  He agreed he could have asked for the risk assessment, but did not do so.[102]
  3. [60]
    The risk assessment is dated 16 January 2012.[103]Relevantly, the “issues identified” and corresponding “corrective action required” are:

“some surfaces are flat and slippery when wet” – “correct foot wear required”

“can get dark in places” – “carry your torch”

“debris and trip hazards” – “be aware, use caution, watch your footing, torch required”.

  1. [61]
    The risk assessment rated risks according to a scale, from something which is “minor” and “extremely unlikely to occur” (rated 1) up to something which is “disastrous” and “almost certainly will occur” (rated 25).  The first issue above (some surfaces are flat and slippery when wet) was given a score of 2 (minor, unlikely to occur) and the other two issues were given a score of 4 (minor, likely to occur).[104]
  2. [62]
    There were two other documents forming part of the records of Darling Downs Security, one called “Team Member Induction”[105]and the other called “Standard Operating Procedures”.[106]It was not in dispute that the plaintiff wrote both of those documents, although there was some doubt about when he did that.  His evidence was that it was when he was employed as a “business development manager” for Darling Downs Security (prior to August 2012, when he took up the position with SNP).[107]Mr Davie’s evidence was of the plaintiff writing these documents “on his second employment period with us”, after he had worked for SNP;[108]although he had earlier said he thought they were prepared in 2012.[109]In any event, the timing is not a critical issue – I proceed on the basis that it was either later in 2012, or early in 2013.
  3. [63]
    The Team Member Induction document includes an “induction checklist” (p 7), one of the items on which is “Tour all Sites”.  By reference to this, the plaintiff agreed he knew it was important to be familiar with all of the sites.[110]
  4. [64]
    The Standard Operating Procedures document includes a section headed “operational responsibilities and procedures” (p 15), one section of which is “3.5 Knowing the Client’s Premises”, which includes the following:  “In order to carry out the protection and prevention duties efficiently, Security officers should acquire knowledge of and be thoroughly familiar with the premises, including its layout and facilities, ie they should know …the general layout of the client premises, location of various buildings, departments and offices and the location of light and power switches”.
  5. [65]
    On the basis of Mr Davie’s and Mr Tosi’s evidence I find that the plaintiff is mistaken in his recollection, and that the words he disputes were on the first night brief, and that the risk assessment was behind that document in the folder which would have been available to him in April 2013.  If (as he says) he did not see the risk assessment, I nonetheless find that he ought to have done so, as it was available to him.
  6. [66]
    In so far as training is concerned, I do not accept the plaintiff’s evidence of his request for training being denied.  It must be acknowledged that Adrian Carr did not give evidence; but nor were any questions asked about his whereabouts, for example, whether he continues to be employed by the second defendant, and so I would be cautious to draw any particular inference from his absence.  But in any event, on the basis of Mr Davie’s evidence, which I found to be credible and reliable, and also on the basis of the plaintiff’s own evidence (including of the role he had at SNP; of the circumstances in which he returned to Darling Downs Security in early 2013 and that being a step backwards; and of him being the author of the Induction and Standard Operating Procedures documents), I consider it implausible that the plaintiff would have requested training.  The plaintiff was plainly experienced, both “on the ground” in terms of patrol work, as well as in matters of risk assessment (at least in terms of the need for them, if not the preparation of them), and general operating procedures concerning security patrol work.  I consider what Mr Davie described to be more plausible, in all of the circumstances – that the plaintiff did not think he needed to be “shown the ropes” again.

Risk assessment process

  1. [67]
    In relation to the risk assessment, Mr Davie said the purpose of that was to assess whether a site was safe enough to actually work on.  He said if there was “anything that was dangerous that can be changed”, they would talk to “the key holder or the owner and have them rectify it so it was a safer workplace for our guys”.[111]As described by Mr Davie, the risk assessment would not involve the client, save where a risk has been identified that they go back to the client and ask them to rectify.[112]For this risk assessment process, he described using a guideline that he borrowed from one used by Chubb.  He agreed that, in undertaking the risk assessment and, relevantly, determining what, if anything, to go back to the client about, there is a subjective determination made by his company, based on its skill set and experience (within the security industry) about that.[113]He said that did happen from time to time – that is, going back to a client and asking for something to be rectified.  He said the most common example of something they ask a client to fix up is where they leave hoses and powerlines across walkways.[114]He said he had never had a client refuse to rectify something.[115]He also said it is an ongoing process, so the patrol officers are also asked to provide feedback, if they identify any risks in the course of doing their patrols.[116]
  2. [68]
    In relation to Downs Earthmoving, Mr Davie said there had been no complaints coming back from his staff about any problems at the premises.[117]In this regard, I note Mr Tosi’s evidence, referred to below, that he had fallen down the drain/embankment himself at some stage – but it may be inferred from Mr Davie’s evidence that Mr Tosi had not, as a result of that, identified it as a risk to his employer.
  3. [69]
    Mr Davie also agreed that the very nature of security work, going to industrial sites, is that there are all sorts of potential hazards “for the non-vigilant or non-trained security officer” and that, in making a risk assessment, he also works on the basis that these are trained security officers who are going onto the sites (not untrained, inexperienced non-security guards).
  4. [70]
    Mr Davie confirmed that Downs Earthmoving had not been approached regarding any deficiencies, in terms of lighting or anything of that kind, at the site (other than perhaps a “dodgy lock or something like that”).[118]But when it was put to Mr Davie that it would be far preferable for the premises to have had artificial lighting down the driveway, for the purposes of security patrol, Mr Davie said “Yeah.  It’d be preferable for everything to be lit up, but is it practical?  That’s – you know, they don’t build it just for us.  We have to work with what we’ve got, sadly”.[119]
  5. [71]
    Mr Davie agreed that a security officer attending the premises would be heavily reliant on a torch.[120]It was uncontroversial that the plaintiff was provided with a torch by Darling Downs Security (a rechargeable Maglite).[121]Although there were questions directed to Mr Tosi and Mr Davie about the effectiveness of different kinds of torches, in terms of whether they would be expected to illuminate the drain, on balance I find that the effect of their evidence is that the torch provided by Darling Downs Security to its staff (including the plaintiff) would have, if being pointed straight ahead as the officer was walking up the driveway, illuminated the driveway, including the drain.[122]Although the plaintiff seemed to indicate he was using a “narrow-beam torch”,[123]it was not clear whether that was a different torch to the one he was supplied by Darling Downs Security, or whether it was a torch with an adjustable beam, or whether that was in the context of his evidence of shining the torch directly into the window on this particular occasion.His evidence in this regard does not persuade me against the finding just referred to.
  6. [72]
    Mr Davie said all sites have a certain level of risk, saying no site ever has a clean bill of health, but said the Downs Earthmoving site had a “low level”.  This was in the context of agreeing with the proposition, in essence, that if his company does not identify anything to the client, the client can assume that the security provider has brought its own expertise and skill to the assessment and are satisfied it is safe to go on.[124]

Plaintiff’s knowledge of the premises

  1. [73]
    The plaintiff acknowledged that he had been to Downs Earthmoving’s premises prior to 9 April, but could not recall how many times.  He said he had driven past it during the day, but could not recall entering the premises during the day.[125]
  2. [74]
    Patrol rosters and log sheets produced by Darling Downs Security[126]showed that the plaintiff had attended at Downs Earthmoving on some occasions from December 2011 to May 2012, and then on a number of occasions in March and April 2013.
  3. [75]
    In so far as those records indicated these attendances were during the day,[127]the plaintiff said that would usually involve just an external drive by, because Mr Davage lived on the site, and if you attended on a weekend he was often working onsite, in which case “we would just make our presence known to Mr Davage and continue on”.[128]
  4. [76]
    His evidence was also to the effect that where, on a log sheet, there is an entry for an attendance at Downs Earthmoving at a particular time, followed by an attendance at another site very shortly after that (a few minutes), that would indicate that he did not get out of the car and actually conduct an inspection of the premises, but rather that he just stopped outside the gate, saw that the owner was on site (either waving at them if the owner saw them, or if not, recording OS on the log sheet, in case the owner checked up later on[129]), and kept going.[130]
  5. [77]
    This explanation applied, on the plaintiff’s evidence, to both the day time attendances logged on 26 January 2012; one of the day time attendances on 6 April 2012 (the other he said he would have gone into the premises); one of the day time attendances on 7 May 2012 (the other attendance he would have conducted a check); the one day time attendance on 10 March 2013; all three night time attendances on 21 March 2013 and 29 March 2013; two of the night time attendances on 6 April 2013 (a third did involve a check); and two of the night time attendances on 7 April 2013 (a third did involve a check).  He agreed he did conduct three night time checks on 30 March 2013.[131]
  6. [78]
    Mr Davie said the patrol officer was expected, on all occasions to inspect the premises, although said if the owner was out in the yard working, you would pop in and say hello, but not walk around and check the doors while he was there.  But if the lights were on in his unit where he stayed the officers were expected to walk around.[132]
  7. [79]
    Mr Davage’s evidence was that the security officers would always come in, and said when he was there, they came in and he used to talk to them.[133]
  8. [80]
    There is plainly some inconsistency between the employer’s expectation, as well as the client’s, and what the plaintiff says he did.  One might speculate that there were some short cuts taken, given the number of premises which were required to be checked in the course of a shift (up to 10 per hour in a 12 hour shift).  But even accepting the plaintiff’s analysis, it can be seen that he had been to the Downs Earthmoving premises during the day in April and May 2012 and at night on 30 March, and 6 and 7 April (so within 2 weeks prior to the incident).
  9. [81]
    The plaintiff’s evidence seemed to be that, as at 9 April 2013, although he had some awareness of a drain, the depth of it was not clear to him, or the fact that the incline increased as it went along the building.[134]He referred to being conscious of what he called a “cement block” sitting at the commencement of the drain, which was “on a little bit of an incline”.[135]As it turns out, this was a tool box.[136]
  10. [82]
    Mr Davie, who had also worked as a security patrol officer at the Downs Earthmoving site, said that, in his experience, the “drain” is visible when walking up the driveway, using a torch.[137]
  11. [83]
    Mr Tosi commenced employment as a security officer in about January or February 2011.  He had been attending the Downs Earthmoving site from the time he started working there.[138]He only ever attended at night.  He said he was very aware of the drain because he had fallen down it himself.[139]He explained that there was a “severe drop on the side of the roadway” (by which I took him to mean driveway) and trucks would often park in that driveway, so you did have to be careful with your footing alongside the driveway.[140]He said if there was no truck there, and he was walking up the middle of the driveway, shining his torch, he would be able to see the embankment. He referred to doing that run for 7 months continually[141](although it was not clear when that was, before or after the incident[142]).
  12. [84]
    In terms of plaintiff’s awareness of the drain, although there is some doubt about how frequently he actually set foot on the premises, including during the day, as recently as 30 March 2013 he had been there and done 3 inspections at night, as well as an inspection on 6 and 7 April 2013.  Both Mr Davie and Mr Tosie said the drain was visible using a torch, at night.  It is more probable than not, in my view, that the plaintiff had, in the course of his previous inspections, become aware of the presence of the drain, and that it was not of a uniform shape or depth.  However, what is also probable is that, due to the manner in which he routinely carried out his inspections (referred to below) he had no need to go near that drain, and so did not register it as any form of hazard or risk to particularly guard against.

The “standard routine” when attending at Downs Earthmoving

  1. [85]
    In terms of what his standard routine was, when attending the Downs Earthmoving premises, the plaintiff said:

“… when I was doing the checks, my routine was to walk into the premises, walk around the side to the … gate with no access [ie the right hand side], come back around, walk to the left then.  We take wide berths on purpose.  Obviously we don’t want to be walking – or we’re trained not to walk close to the building and in and around a corner like that in case there is someone waiting there in … ambush to attack you.  So on purpose we do take wide berths to, you know, get around a corner.  My routine was to come around the corner, then walk towards the left side of the driveway [near the hedge on the side[143]].  As I was walking up the driveway I’d shine my torch on the window, just to ensure that none of them were open.  I didn’t check them physically, and then I would go to the left-hand side of the gate and unlock the gate and enter the premises”.[144]

  1. [86]
    When asked if he would look in the windows, he said “often I would”.[145]He said he would then go through that (middle gate) – which was often hard, because of machinery parked there – to the back of the building, and then to the right, where there was another shed, and a roller door and a sliding door.  He said “[w]e didn’t go right out the back of Mr Davage’s property, because there was too much out there. Old Cars.  Old bits of machinery, and it was too dangerous to sort of walk in and try and manoeuvre your way around it”.  But there was a kind of “pathway” though the debris, which the security officers would go along, in order to check that the doors to the shed at the back were secured and locked.[146]After doing the semi-internal inspection around the back of the building, he would make his way back out, locking both gates.[147]

What happened on 9 April 2013?

  1. [87]
    The plaintiff said he was working a shift as a patrol officer on this night, although could not remember which run he was assigned to (but it was not the run which included Downs Earthmoving).  He said he received a phone call at about 2am from John Tosi, who was at Downs’ Earthmoving’s premises, and who the plaintiff said “told me that there was an alarm light that was illuminated and it was flashing.  He told me that he would like – would require some backup for the site as he believed there may be an offender on site, as we were advised previously that there had been break and enters to the site”.  Following this, the plaintiff said he “attended to the site to assist John with securing the site”.[148]
  2. [88]
    He said when he first arrived at the premises, he saw John standing at the front gate, so he pulled up (his car) behind him and got out and spoke to him.  There was no lighting around the premises.  He and John opened the gate [I infer, the front gate, on the street] and walked inside.  He said “[w]e secured the front of the building and then we proceeded to walk around the side of the building, on the left-hand side” to head up towards the gate [I infer, the gate which is half way up the driveway, marking the entry to the premises occupied by Downs Earthmoving].  He said they “were looking for visible signs of forced entry”, “with our torch”.[149]
  3. [89]
    The plaintiff went on to say that:

“… due to the alarm light being illuminated, we had suspicion that there was someone on site.  We then started – the actual windows of the Downs Earthmoving site were tinted on that side.  So we had to walk fairly closely towards that side of the building to get our lights through the window.  As – as I was walking, I was walking up to about the third window, at which time I tripped and fell down the side of the embankment.”[150]

  1. [90]
    He said it was his right foot that slipped down the side of the drain, curving in as it went, and his left leg “sort of just curled up as I fell down” and “I ended up landing on my backside”.[151]
  2. [91]
    He said he was shining his torch through each of the windows, first, second and third, along the left hand side of the building, “seeing if there were offenders on site”.   As he did this, he said John Tosi was “walking behind me on my left-hand side”.  He could not recall if John Tosi had his torch on.[152]
  3. [92]
    The plaintiff said it was “very dark” on the driveway.[153]
  4. [93]
    The plaintiff described what he was doing on this occasion as being different from his usual routine, because he was “in a guarded position”, being “of the belief that there is an intruder inside”.  For that reason, he came closer to the windows on the left side of the shed than he normally would, on a routine check. 
  5. [94]
    There was evidence that there had been a break in at Downs Earthmoving, a couple of nights earlier.[154]Mr Davage gave evidence of getting to the premises in the morning, and finding broken glass near the middle gate, which he said was from a window of one of the trucks in the yard.  He also referred to his shed being broken into, and both the shed and the truck being ransacked.[155]Mr Davage said he was not aware of any other break-in, on the night the plaintiff was injured (saying he found out about the plaintiff being injured, later on, in a letter from solicitors).[156]
  6. [95]
    The version of events which the plaintiff described to Mr O'Sullivan, an ergonomist retained to provide an expert opinion to the court,[157]differed in some material respects to his evidence at trial.  In particular:
    1. (a)
      Mr O'Sullivan recorded that:  “While the other security guard when (sic, went) around the right side of the building [the plaintiff] walked up the left side in order to shine his torch in through the windows and check for intruders.  The left side of the building was in complete darkness, due to lack of lighting, and Mr Humphries was focused on looking in through the windows while holding the torch at shoulder level in a stab type of grip.” (p 4)

In fact, the other security guard (John Tosi) was with the plaintiff, walking up the left side of the building.[158]In relation to this, Mr O'Sullivan said this could have an effect on the conclusions in his report, but it would depend on where the other person was, and whether they were in a position, with their torch, to help indicate the presence of the drain.[159]

  1. (b)
    Mr O'Sullivan recorded that:  “In the few previous visits to the site during routine inspections, Mr Humphries had walked around the right side of the building and back down the left side near the fence line.  There had not been any lighting on that side of the building and Mr Humphries had never detected the drain in question…” and “The normal inspections involved heading around the right side, checking doors on the way, continuing around the rear of the building and then coming back down the left side …” (pp 4-5)

In fact, it is impossible to walk around the right side of the building (as is apparent from exhibit 4).  But Mr O'Sullivan was very clear in his oral evidence that this is what the plaintiff told him.[160]

  1. [96]
    It may perhaps be possible to infer that Mr O'Sullivan misinterpreted the description of the plaintiff’s usual routine (in (b) above); although in that regard I observe that Mr O'Sullivan is an experienced witness in matters of this kind, who may be expected to be a careful interviewer and note-taker, given the issues he is asked to consider, and give evidence about.  The description recorded by Mr O'Sullivan in (b) has the plaintiff only travelling down the driveway when leaving the premises (as opposed to travelling up and down the driveway), and thus being less likely to have come across the drain prior to this incident, or to have done so less regularly.
  2. [97]
    In any event, it is far more difficult to draw such an inference in relation to the description of what happened on the night in question (in (a) above).    It was suggested to the plaintiff that, at the time he spoke to Mr O'Sullivan, it had not become apparent that Mr Tosi would provide a statement and give evidence in the proceeding, and therefore he adapted his version, to have him on his own on the left hand side of the shed.  He denied this.  But in my view, having regard to the significant difference in versions, it is reasonable to infer that the plaintiff gave the version he did to Mr O'Sullivan, in order to bolster his claim, particularly in terms of a lack of lighting (from Mr Tosi’s torch, if not his own).
  3. [98]
    The plaintiff’s evidence also differed in some other respects, from that given by Mr Tosi.
  4. [99]
    Mr Tosi was rostered on to do the 3 random checks on the Downs Earthmoving premises on this night.  He said he had arranged to meet the plaintiff there, saying:

“… a break-in was missed on the weekend.  According to the customer, he claimed that there was an attempted break-in that our day shift had missed on the weekend and we went to investigate to see if there, in fact, was an attempted break-in, had we missed it.”[161]

  1. [100]
    Mr Tosi said there was no emergency on the night; and no suspicion of a burglary in progress, but he said “if there’s been a break-in the previous couple of nights, … we were very aware that – if it had been unsuccessful, people could come back and try again”.[162]He said there was no alarm sounding or flashing light when they went there that night.[163]
  2. [101]
    This is in a context where, it seems, Mr Davage may have been considered somewhat of a difficult client, who had expressed concerns about how frequently offices were attending on site for security checks, and where there suggestions, of which the plaintiff said he was aware, that Mr Davage would sometimes remove the “cards” from the locks, as the plaintiff said, to “make us second guess as to if an offender had been on site or if a patrol officer had been on site”.[164]
  3. [102]
    According to Mr Tosi, he was in front as they walked down the left side of the shed.  He said he was shining his torch “inside through a mechanical workshop at the front of the warehouse at the back wall to see if there had been an attempted breach on an inside wall, and I couldn’t see”.  He said he was talking to the plaintiff, and the plaintiff was coming from behind him.  He said the plaintiff “moved up my right-hand side to have a look as well” and “just went down”.  He thought the plaintiff was “probably, as you would, looking where my light was shining”.[165]
  4. [103]
    Mr Tosi did not think his torch would have illuminated the drain, because it was fully focussed on the wall (inside the building).  But he said he was very mindful of the drain.[166]He said he could not remember if the plaintiff’s torch illuminated the drain.[167]
  5. [104]
    Mr Tosi presented as an honest and reliable witness.  He has no interest in these proceedings, and gave his evidence in a clear and straightforward manner.  Where their versions differ, I prefer the evidence of Mr Tosi, to that of the plaintiff, as to what occurred on the night in question, relevantly:
    1. (a)
      that they were not responding to any report of a break-in on the night/early morning of 9 April 2013 – and there was no alarm sounding or flashing light[168]when the plaintiff and Mr Tosi arrived at the premises;
    2. (b)
      that they went to the premises together, in order to “investigate” – that is, to see if there was any evidence of a previous break-in which had been missed – in circumstances where complaints had been made by Mr Davage to that effect;
    3. (c)
      that when they were walking down the driveway, Mr Tosi was in front, and the plaintiff was behind him, to his right;
    4. (d)
      that Mr Tosi was shining his torch directly into the windows of the shed occupied by Toowoomba Lube and Mechanical, so that he could see whether there had been any evidence of an attempted breach on an inside wall;
    5. (e)
      the plaintiff was following closely behind Mr Tosi, also looking closely into the windows;
    6. (f)
      although not responding to a report of a break-in, or the presence of intruders, they would both have been on alert, having regard to the break-in which had occurred a few nights earlier.
  6. [105]
    I further find, on the basis of the plaintiff’s and Mr Tosi’s evidence, that:
    1. (a)
      what they were doing on this occasion was different from what they would routinely do when conducting a security patrol at the Downs Earthmoving premises – because they were walking very close to the front shed, looking directly and intently into the inside of the front shed – rather than walking down the driveway more generally, or along the side closer to the hedge, to approach the middle gate’s opening, and shining a torch on the window from that distance;
    2. (b)
      they were not (or not only) carrying out a security check on the premises, in accordance with the agreement, but looking for evidence as to whether or not there had been a previous break-in, which had been missed (and presumably on that basis to be able to respond to the complaint from Mr Davage).
  7. [106]
    In terms of the plaintiff’s use of his torch, it follows that I do not accept his evidence that he was in front of Mr Tosi, being the only one of the two shining his torch into the windows.  It may well be, having regard to the overall circumstance, particularly as described by Mr Tosi, that the plaintiff was also shining his torch into the windows, behind Mr Tosi.   In any event, it seems probable that the plaintiff was not shining his torch towards the ground, or more generally in the direction of their travel, illuminating the path in front of them, and was not keeping a look out for where he was walking – concentrating instead on looking closely into the windows, behind Mr Tosi.

Other general matters regarding security work

  1. [107]
    The plaintiff agreed with the propositions that undertaking security work in industrial sites at night involves walking around at night, within premises having differing degrees of illumination (from no lighting to brilliant lighting), and there is always an alertness to the risk that there may be something onsite that could cause harm to a person (for example, pallets could be stacked up; there may be pieces of wood sticking out; there may be drainage holes).[169]
  2. [108]
    On the assumption that there are points of darkness or danger within a premises, the plaintiff said he would expect an employee to be vigilant, and have his torch, agreeing that it would be foolhardy for an employee to walk around in areas of darkness without a torch on.[170]

The plaintiff’s injury

  1. [109]
    The plaintiff described feeling pain in his ankle straight away.  He continued working that night, and the following days, but said the pain and swelling increased over the next few days.[171]He took pain killers (panadeine forte) and anti-inflammatory medication, upon prescription from his GP, who also recommended physiotherapy.  He had about four to five weeks off work, during which he said he stayed in bed and rested, as recommended by his physiotherapist and doctor.[172]
  2. [110]
    He said he was referred to a specialist (whose name he could not remember) who gave him a cortisone injection, and told the plaintiff he should be right to go back to work, which he did about a week after the injection.[173]
  3. [111]
    He described telephoning this specialist to see if he could have another visit, because his ankle was painful again after returning to work.  He said he was told to call WorkCover, but when he did that, was told his case had been closed, so he did not see the specialist again.[174]
  4. [112]
    The specialist that the plaintiff saw shortly after his injury was Dr Bookless, an orthopaedic surgeon.  He reported back to the plaintiff’s GP on 6 May 2013,[175]noting that:

“On examination [the plaintiff] was walking very slowly with apparent right foot pain.  With a significant amount of encouragement I could ascertain that he could toe and heel walk.  He had a full range of movement in the right ankle and subtalar joints equal to the left.  There was tenderness on palpation at the tendo-achilles with maximum tenderness being about it’s insertion.  The tendon it’s self (sic) was not acutely tender and certainly not locally thickened.  Plain x-rays were essentially normal.  I note the ultra-sounds report.

It is possible [he] has a bursitis but quiet (sic) frankly the apparent severity of his symptomatology doesn’t seem to be adding up.  I have referred him for an MRI of the region and will review again with this result.”

  1. [113]
    He wrote a further letter to the GP, dated 8 May 2013, reporting that:[176]

“I reviewed [the plaintiff] today with the MRI of his right ankle.  This study reveals a small retrocalcaneal bursa.  It was otherwise normal.  I have injected the area of this bursa with steroid today and returning to work.  I intend reviewing him again in two weeks.”

  1. [114]
    Regarding the second-last sentence, Dr Bookless explained that he thought the plaintiff was capable of returning to work.[177]
  2. [115]
    Dr Bookless agreed in cross-examination that there could be a range of responses in different people, but said he thought the plaintiff’s reported symptoms seemed to be more than one would normally anticipate with a small retrocalcaneal bursa such as the MRI subsequently revealed he had.[178]
  3. [116]
    Dr Bookless said his records showed that he saw the plaintiff again on 27 May 2013, on which day he recorded “Pain has settled.  No abnormalities to examination”.[179]
  4. [117]
    As noted above[180]the plaintiff returned to work around mid-May 2013.
  5. [118]
    At this time, he was living at his mother’s house, in Toowoomba.[181]He and his then partner, Ms Stanley, had moved into his mother’s house in January 2013 (when Ms Stanley was pregnant[182]) and moved out into their own place in about June or July 2013, just before their son was born.[183]
  6. [119]
    Ms Stanley said she observed the plaintiff’s ankle to be “very swollen and extremely bruised” in the couple of weeks after the injury.  In the couple of months after, she said he couldn’t really do much, saying that “usually of an evening he’d be in a lot of pain”.  She observed him to have difficulties doing the things he would normally do, like mowing the lawn, and to be quite agitated and in pain.  Their relationship came to an end in December 2013 (with Ms Stanley moving to Armidale in New South Wales).  By this time she thought his injury was not as bad as it originally was, although it was still swollen quite often, he had some difficulties running around with his daughters when they visited, and he would still complain of pain at night.[184]Ms Stanley’s evidence was that the plaintiff did not do a lot around the house, he helped with a little cleaning, but when they were in their own place, she took on that role.  She said his injury did not interfere with his ability to do the small amount of cleaning he did.  She said that when they were at his mother’s house, he used to mow the lawn; and when he could not do it, after injuring his ankle, they got someone to do it.[185]
  7. [120]
    The plaintiff’s mother, Ms Wale, likewise observed the plaintiff’s ankle to be swollen; and when he and Ms Stanley moved out, in the middle of the year, she said he seemed a bit grumpy and was walking with a limp, and would tell her his ankle was aching.[186]Ms Wale’s evidence was that she and her husband have a person who mows the lawn for them.  It appeared from her evidence the plaintiff had not done that.  She thought the same person was mowing the lawn at the house that the plaintiff and Ms Stanley moved into.  I did not form the impression from Ms Wale’s evidence that the plaintiff had done much, or anything, in terms of helping around the house, either when living with her, or when he and Ms Stanley moved out.[187]
  8. [121]
    He said he continues to take painkillers up to the present, but has not had any other treatment.[188]
  9. [122]
    He described the pain and swelling in his ankle continuing when he was examined by Dr Gamboa in July 2014, and indicated that although his pain is the same now, he gets less swelling.[189]
  10. [123]
    He described having some difficulties driving for extended periods of time (a couple of hours).[190]
  11. [124]
    He said that, since injuring his ankle, he had paid for lawn mowing (saying he spends $60 a month) and car cleaning (about $50 a month) (both of which he did straight after the injury) and some cleaning tasks (about six months after the injury, which he said costs $50 a week).[191]No documentation was tendered in relation to any of this expenditure.
  12. [125]
    He used to enjoy playing indoor cricket, but has not done that since the injury.[192]

Family arrangements

  1. [126]
    The plaintiff has four young children.  His two oldest children, aged five and three, reside with their mother in Toowoomba.  The third child is aged two and resides with his mother, Ms Sally Stanley, in Armidale.  The fourth and youngest child, aged three months, resides with the plaintiff and his current partner, in Brisbane.[193]
  2. [127]
    The plaintiff has arrangements to visit with the children who do not live with him on weekends, and during weekdays also when he can.[194]He agreed that his availability to work on weekends would be contingent upon access and time spent with his children, “to a degree”.[195]

Previous, and subsequent medical conditions

  1. [128]
    In about August 2011, whilst the plaintiff was working as a security officer for another company (Murphy & Co), he suffered an assault whilst he was working, in a “crowd control” capacity, at a Toowoomba hotel.  He described suffering headaches as a result of that, and nervousness about being back in that capacity as a crowd control officer.  He said he still gets headaches on and off.[196]In the context of a workers’ compensation claim in relation to this assault, the plaintiff was examined by Dr Campbell, neurosurgeon, on 13 June 2012.  Dr Campbell’s report, of the same date,[197]records that the plaintiff was diagnosed with chronic post-traumatic headaches secondary to a closed head injury, resulting in a 3% whole person impairment.   Dr Campbell noted that the plaintiff “now avoids crowd control at work as a security guard”, and on that basis his “prognosis with regard to performing his duties as a security officer is satisfactory”.  Dr Campbell also noted that “[a]ny return to crowd control work would expose him to a further head injury and would be best avoided”.
  2. [129]
    There was also evidence, in March 2014, of the plaintiff experiencing what his GP (Dr Sullivan) described as “back pain, right side, radiates to knee”,[198]and what the plaintiff described as having “a sore bum cheek”, with pain down the back of his leg.[199]He related this to a problem with his car seat, and said once he moved into a larger car he did not have any further problems.[200]Although, the medical records indicate this problem persisted for some time, with a record of a further attendance on 15 August 2014, a diagnosis of trochanteric bursitis, and a recommendation for a steroid injection.[201]
  3. [130]
    Dr Sullivan’s notes appear to commence from 6 November 2013.  What these notes also indicate, by way of omission, is that the plaintiff did not make any complaint to Dr Sullivan of ankle pain in any of his visits from 6 November 2013 to 15 August 2014.  The plaintiff said he had spoken to his GP about his ankle previously.[202]No notes from the GP prior to 6 November 2013 were tendered.  I accept that the plaintiff may well have mentioned his ankle injury to his GP prior to November 2013; but on the basis of the notes produced, I consider it reasonable to infer that he has not mentioned it to his GP, or sought any treatment for it, since November 2013.

Expert evidence

Dr Gamboa

  1. [131]
    The plaintiff relied upon the expert opinion of Dr Gamboa, an orthopaedic surgeon, who saw the plaintiff on 27 June 2014 and prepared a report dated 9 July 2014.[203]
  2. [132]
    Dr Gamboa diagnosed the plaintiff’s injury as “Achilles tendonitis and strain with retrocalcaneal bursitis - right ankle” (p 5). 
  3. [133]
    In terms of subjective complaints from the plaintiff, Dr Gamboa recorded that the plaintiff complained of “mild constant pain from the posterior aspect of his ankle” which “intermittently becomes moderately severe on prolonged walking, especially on hard surfaces”.  The plaintiff also complained of “some degree of stiffness and occasional swelling”.  He described difficulties with activities of daily living which require prolonged standing, walking and repetitive stair climbing; said he was unable to gain restful sleep at night because of pain; and struggles with most domestic duties.  He told Dr Gamboa that he struggled with his previous occupational duties as a security officer, but did not complain of any great deal of difficulties with his current sedentary occupation.  He was said to be restricted in his recreational activities (p 7).
  4. [134]
    Of his own examination, Dr Gamboa recorded:

“… There appeared to be some degree of loss of muscular tone of the right calf muscles, compared to the contralateral side, although objective measurement did not reveal any discrepancies with regards to calf girth.  He had bilateral flat feet.  I was unable to appreciate any swelling of the ankle or the retrocalcaneal region.  He continued to have tenderness over the distal Achilles tendon, approximately 2cm from its insertion into the back of the calcaneus.  The range of motion was slightly deranged because of pain.  He was able to achieve 5º of dorsiflexion as opposed to a little over 10º on the contralateral side.  Plantar flexion was preserved at 45º and there was no limitation in hindfoot inversion or eversion.  There was no ligamentous instability with a negative anterior draw test and a negative varus dorsiflexion test.  There were no distal neurovascular deficits.” (p 7)

  1. [135]
    Dr Gamboa assessed the plaintiff as having a 3% loss of whole person function, on the basis of the loss of range of motion (p 9).
  2. [136]
    He considered that it was likely the plaintiff would benefit from further steroid injections into the region (p 9).  He also recommended anti-inflammatory medication for a short period of time, and said it is possible he would also benefit from further physiotherapy for stretching and range of motion exercises (p 10).
  3. [137]
    Dr Gamboa regarded the plaintiff’s “remunerative prospects” as “relatively preserved”, on the basis that although he is not suitable to re-engage in his previous occupation as a security officer, his current sedentary occupation is suitable for him (p 9).

Dr Saxby

  1. [138]
    The defendant relied upon the expert opinion of Dr Saxby, an orthopaedic surgeon specialising in disorders of the foot and ankle.  Dr Saxby saw the plaintiff on 7 January 2015, and provided a report dated 13 January 2015.[204]Dr Saxby recorded, from the plaintiff, a complaint of ongoing discomfort in his ankle, recording that the plaintiff stated “he has never really improved” (p 2).
  2. [139]
    He recorded that the plaintiff is able to carry out his normal household duties, but that the plaintiff said he is not able to mow the lawn (p 2).
  3. [140]
    Of his own physical examination of the plaintiff, he recorded:

“This gentleman walks without a limp.  There is no other deformity or swelling.  He is able to perform a full squat.  He is able to walk on tiptoes.  On specific examination there was some mild tenderness over the area of the Achilles insertion however he had full range of motion of his ankle.  He had normal pulses and sensations.  There was no obvious wasting.” (p 2)

  1. [141]
    Dr Saxby expressed the opinion that the appropriate diagnosis was of “a soft tissue injury to [the plaintiff’s] right leg which has resulted in a retrocalcaneal bursitis which [he] has been treated appropriately for” (p 3).  Dr Saxby explained that bursitis is  inflammation of the bursa, which is a sack of fluid that acts as a cushioning pad between the tendon and the heel bone.[205]He said that bursitis is “usually” associated with overuse or repetitive friction over a period of time, rather than one single episode of trauma”, although it is possible to result from a trauma.[206]
  2. [142]
    Dr Saxby commented that the plaintiff’s “reported symptoms are somewhat more than one would expect from this type of injury.  [He] has sustained a very mild soft tissue injury with very mild radiological changes and therefore I would not expect [him] to have such a degree of ongoing pain as he reports” (p 3).
  3. [143]
    Dr Saxby said that he could not detect any objective measureable loss in terms of muscle wasting or range of motion and therefore would assess him using the objective findings of the AMA Guidelines to have a zero percent permanent impairment.  However, he said that the plaintiff could be assigned a small degree of permanent impairment for his reported pain.  On that basis, Dr Saxby assessed him to have a 1% whole person impairment due to pain not accountable by the other objective measures (p 3).
  4. [144]
    In relation to work, Dr Saxby said the plaintiff would have been incapacitated for a short period (a few weeks) following injury, but that he should have been able to return to work on full duties (p 4).  Further, he said he did not think the injury should adversely affect his ability to work as a security officer.[207]He did not consider the plaintiff required any domestic care (p 5).
  5. [145]
    Dr Saxby said he would not recommend further steroid injections, but said anti-inflammatories and stretching exercises might help.[208]
  6. [146]
    In terms of the differences between what Dr Saxby observed on examination, and what Dr Gamboa observed:
    1. (a)
      in relation to muscle tone, Dr Gamboa did not seem to consider the different views as of any particular significance, as he had not relied upon that in assessing the plaintiff’s impairment;[209]
    2. (b)
      in relation to the range of dorsiflexion that he measured, Dr Gamboa acknowledged that things might have improved between his examination, and that of Dr Saxby; otherwise he thought it might be explained by the methodology used (active or passive – but I note that Dr Saxby used both[210]); or how the plaintiff was feeling on the day.[211]Dr Saxby also commented that the results of this kind of testing are variable.[212]
  7. [147]
    Dr Gamboa also acknowledged that, to some extent at least, his assessment of a loss of range of motion, was informed by the pain response of the plaintiff, which is subjective.[213]
  8. [148]
    On balance, I prefer the opinion of Dr Saxby, as to the appropriate assessment, because of the particular specialty of Dr Saxby in relation to feet and ankles (which I did not understand Dr Gamboa to share); his examination being the most recent in time; the probability that the difference in outcomes is explained either by improvement, or alternatively that what Dr Gamboa observed was affected in some way by subjective behaviour; and the consistency of the comment made by the treating doctor, Dr Bookless, with the view expressed by Dr Saxby.

Occupational therapist

  1. [149]
    The court also received evidence from Ms Deanne Flynn, occupational therapist, who saw the plaintiff on 30 May 2014 and prepared a report dated 14 August 2014.[214]Ms Flynn notes that, from a physical perspective, the plaintiff “has demonstrated a tolerance for his current work” (pp 8 and 9), but that, due to his injury (in respect of which she noted the plaintiff described increased pain with prolonged periods of standing and walking) he is no longer suited to “physically demanding positions” for which he is otherwise reasonably qualified (in respect of which I note Ms Flynn includes work such as commercial cleaner, labourer, factory or process worker, as well as ) (pp 8 and 9).  She referred to Dr Gamboa’s view that the plaintiff is not suitable to re-engage in his previous occupation as a security officer (p 8), and indicated that she agreed with that opinion.[215]In her oral evidence she agreed with the proposition that there are many types of security work that do not involve prolonged standing, and said that, from a physical perspective, if he had the opportunity in such a role, to alternate between sitting and standing regularly, he would be capable of that.[216]

Ergonomist

  1. [150]
    As already mentioned, the plaintiff relied upon a report from Mr Justin O'Sullivan, of Ergowork, dated 20 April 2015.[217]In his report, Mr O'Sullivan observed (at pp 10-11):

“… it would appear that there were no lights fitted to the left side of the building at the time of the incident and, in the absence of other nearby lighting, the area will have been in almost complete darkness at the time of the event.

In dark conditions, without being aware of the presence of the drain, particularly its presence immediately adjacent to the wall of the building rather than at the outer edge of the driveway, there will be a significant risk of a person inadvertently stepping into the drain as well as a greater likelihood that a security officer, such as [the plaintiff], would not be actively checking the ground surface for such a hazard but rather checking for intruders through the windows.

… the matter at hand was one where he was focused on detecting intruders and was holding the torch at shoulder level with the purpose of directing its light in through the windows of the building.  He described his grip on the torch as the type of grip he was trained to use while his other hand was resting on top of his gun.

In his previous visits to the site [the plaintiff] had not had cause to walk close to the wall of the building but had walked on the outer side of the driveway near the hedge and, as appears to have been the practice, directed his torch at the building and the windows and possibly at the ground directly in front of his feet…

A key issue for a foot security patrol is the geography of the site.  [The plaintiff] states that he was not provided with the First Night Brief[218]though the document and its content appears to be relatively generic with no reference to the significant falling hazard posed by the drain.  … [The plaintiff] denies being provided with the site risk assessment though this document, even though in checklist form, makes little or no reference to specific work-site features.  The item most relevant to the drain, item 1, refers only to some surfaces being flat and slippery when wet.

Given that [the plaintiff] had to patrol 60 to 80 buildings and sites per night, the site risk assessment is critical, along with strict procedures once on site, with the emphasis on personal safety as opposed to work goals, such as detecting intruders or security breaches.”

  1. [151]
    In so far as the employer is concerned, the deficiencies identified by Mr O'Sullivan – and appropriate countermeasures – are:
    1. (a)
      Failing to carry out a proper site risk assessment, prior to work commencing on the site, and ensuring that the patrol officer(s) are familiarised with the site (pp 12 and) – with the countermeasure being (pp 13, 14, 15):
      1. effective site audit and risk assessment (including, where obvious hazards are identified, the client being notified and required to address them);
      2. effective communication of same to the patrol officer; and
      3. daytime familiarisation tour by patrol officer;
    2. (b)
      Further to (a), deficiencies in the content of the site risk assessment and first night brief, which fail to make reference to the “specific and significant hazard posed by the deep drain” (pp 12 and 14).
    3. (c)
      Failing to require the client to provide suitable lighting on the left side of the building (pp 12-13) – with the relevant countermeasure being to require the client to install appropriate lighting; or provide the officer with a headband torch as well as a handheld torch (p 15).
  2. [152]
    It was Mr O'Sullivan’s view that a hazard such as this drain was something that ought to have been identified on a risk assessment, and he referred in this regard to “expectations”, the expectation being that the driveway surface is probably flat, and the expectation that the drain at the front of the building will continue in the same way.[219]
  3. [153]
    However, Mr O'Sullivan agreed that if there was adequate lighting by torchlight, of the conditions underfoot, and the plaintiff was watching where he was going, then he would have an awareness of the drain, and the recommendations that he makes in his report would not have made any difference.[220]
  4. [154]
    I turn now to address the issues for determination (albeit with some revision from the list agreed by the parties).

Exclusion of the Civil Liability Act 2003

  1. [155]
    It is appropriate to deal with this first, before the other issues.
  2. [156]
    As noted above, no party submitted that the CLA did apply.    I am satisfied that is correct, having regard to the exclusion in s 5(1)(b) of the CLA.   Plainly, this is a case where the claim is that the activities of the plaintiff’s employment were a “significant contributing factor to the injury” for which the plaintiff seeks to recover damages from the first defendant and the second defendant.[221]
  3. [157]
    In so far as the first defendant, Downs Earthmoving is concerned, the matter is to be determined according to general law principles.  In so far as the second defendant, Darling Downs Security, is concerned, its liability is governed by the relevant provisions of the Workers’ Compensation and Rehabilitation Act 2003.

First Defendant’s Liability

Principles and authorities

  1. [158]
    It was not in issue that, as the occupier of the premises, Downs Earthmoving owed the plaintiff a duty to exercise reasonable care to avoid foreseeable risks to the plaintiff whilst he was lawfully on the premises.[222]
  2. [159]
    What was in issue, however, is what that duty required of the first defendant, having regard to the particular relationship between it and the plaintiff.
  3. [160]
    In Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 the High Court, after referring to the change in the common law, following Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, rejecting an approach of seeking to construct a series of special duties on occupiers by reference to different categories of entrant, said:

“24 … That is not to say, however, that the law now disregards any aspect of the relationship between the partiesother than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty.[223]

25 Even in the days when the content of an occupier’s duty of care was defined by reference to fixed categories, within those categories the requirements of reasonableness were affected by a variety of considerations. Mason J, in Papatonakis v Australian Telecommunications Commission,[224]said:

‘The content of the occupier’s duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.’

26 The purpose for which, and the circumstances in which, the appellant [plaintiff] was on the respondent’s [defendant’s] land, constituted a significant aspect of the relationship between them…”[225]

  1. [161]
    As Gummow and Hayne JJ observed in Jones v Bartlett(2000) 205 CLR 166 at [167]:

“… it would be of no utility merely to conclude that the duty is to be expressed simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the appellant. That would be to leave unanswered the critical questions respecting the content of the term ‘reasonable’ and hence the content of the duty of care, matters essential for the determination of this case, for without them the issue of breach cannot be decided.”

  1. [162]
    In this case, the first defendant submits that it engaged the second defendant, an independent contractor, to provide specialist security services at its premises, and relied upon the skill and expertise of the second defendant in doing so.  It was submitted that the second defendant operates as a licensed specialist in a highly regulated industry; it employs trained security officers who visit many different industrial sites, in the course of a shift, often at night; and brings with it to any given site a degree of experience and skill in dealing with security matters, including the ability to negotiate potential hazards on those sites.[226]
  2. [163]
    On this basis, the first defendant relies upon the principle, established in Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at 30 (in the reasons of Brennan and Dawson JJ), that:

“… where an independent contractor carrying on a particular trade is engaged by an occupier to work on his premises, the occupier is not under a duty to give warning of a defect in the premises if tradesmen of that class are accustomed to meeting and safeguarding themselves against defects of that kind.”

  1. [164]
    That principle did not provide an answer in Papatonakis itself, because, as Brennan and Dawson JJ further observed:

“It is one thing to leave it to an independent contractor to decide for himself how to do his work; it is another thing to leave him in ignorance of a fact that is material to his decision if he, using reasonable care, might not discover that fact.”[227]

  1. [165]
    The emphasised words in that passage reflect the general principle that an occupier is entitled to assume that the entrant will use reasonable care for their own safety.  The content of that assumption was addressed by Gleeson JA (with whom Emmett JA and Tobias AJA agreed) in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [159]:

“The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, ‘the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case’: Roads and Traffic Authority of New South Wales v Dederer and Another[2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q’land) Pty Ltd[2005] HCA 19; 221 CLR 234 at [35].”[228]

  1. [166]
    In Papatonakis, the occupier was held to be in breach of its duty of care to a Telecom linesman who came onto its property to repair a fault in the telephone line, because the occupier had tampered with the line (by installing a length of domestic flex that contained no bearer wire), after its initial installation by Telecom, but failed to warn the linesman that this wire could not be relied on (to brace the pole against which the linesman placed his ladder).
  2. [167]
    Although Mason J was in dissent in Papatonakis in terms of the outcome (his Honour considered the occupier was not liable, on the basis a lack of foreseeability), the following passage from his judgment[229]reflects the approach that has been taken in subsequent authorities, in seeking to reconcile Papatonakis with the modern approach to occupier’s liability:

“The content of the occupier’s duty to exercise reasonable care for the safety of an invitee must, of course, vary with the circumstances including the degree of knowledge or skill which may reasonably be expected of the invitee and the purpose for which the invitee enters upon the premises.  It is in this context that I would place Christmas v General Cleaning Contractors Ltd, Bates v Parkerand Pinborough v Minister for Agriculture,[230]the cases relied upon by the majority in the Federal Court.  Those cases, which have denied the liability of occupiers to skilled independent contractors injured when encountering risks ordinarily incident to the work they were invited onto the premises to perform, should not be seen as establishing any exception to the normal duty of an occupier to an invitee but rather as particular applications of that duty.  In the language of Indermaur v Dames[231]they simply decided that the risks were not to those invitees ‘unusual dangers’ which the occupiers knew or ought to have known, an ‘unusual danger’ being a danger ‘not usually found in carrying out the task or fulfilling the function which the invitee has in hand’:  Horton.[232]By way of alternative explanation, it might be said that reasonable men in the position of the occupiers would not have foreseen, or if they had foreseen would not have thought it reasonably necessary with regard to the knowledge and skill of the invitees to guard against, the occurrence of those injuries to those invitees.”[233]

  1. [168]
    Reflecting these comments, in Davis v Nolras [2005] NSWCA 379 at [65] Brereton J said:

“… the Papatonakis principles do not constitute an exception to the normal duty of an occupier to an entrant, but … in the application of those ordinary principles, a specialist contractor may be taken to expect to encounter and safeguard himself or herself against those risks which are ordinarily incidental to performance of his or her specialist function, so that such risks are not regarded as necessitating a warning[234]…”

  1. [169]
    Brereton J went on to say, at [66]:

“Consistently with that approach, if, in that context, a risk remains an unusual one, in the sense that it exceeds what is ordinarily incidental to performance of the contractor’s specialist function, and might not be discoverable by the contractor prudently performing his or her function (including making appropriate inspections), there will (subject to any issue of foreseeability) remain a duty to warn the entrant of it.”

  1. [170]
    But as Brereton J also said (at [72]), again reflecting Mason J’s comments in Papatonakis:

“… the existence of a duty to warn depends on the actual or constructive knowledge of the occupier, not of the entrant, and the duty to warn entrants of risks attends dangers of which the occupier knows or ought to know.  In the context of entrants who are skilled specialist contractors, this means that the duty to warn does not extend to dangers which a reasonable occupier would not have foreseen, or if foreseen would not have thought it reasonably necessary to guard against having regard to the specialist knowledge and skill of those entrants…”[235]

  1. [171]
    It is helpful, in understanding these principles, to consider their application in other cases.
  2. [172]
    In Davis v Nolras the Court of Appeal, albeit for differing reasons as between two members of the court, found no breach of duty on the part of an occupier of a factory, at which the plaintiff, an employee of an independent contractor with expertise in dismantling racking systems, was injured in the course of doing that, as a result of falling from water-damaged shelving.  Ipp JA reached that conclusion, inter alia, on the basis that Papatonakis applied, finding that having to deal with water-damaged shelving was not an unexpected phenomenon, it was “simply part of the job” which the contractor, as a specialist racking system dismantler, had contracted to undertake.  Accordingly, it was reasonable for the occupier to rely on the contractor’s employees to take reasonable care for their own safety should they encounter water-affected shelving (at [39]-[49]).  Brereton J, on the other hand, considered that because the shelving was located internally, the fact that it had been exposed to water was “an unusual danger, exceeding the risks which [the plaintiff] would ordinarily anticipate”, and therefore the Papatonakis principle was excluded (at [71]).  However, his honour also found that it was not reasonably foreseeable to the occupier, either that the shelving might become compromised by exposure to water, or that the shelving dismantlers might stand on it and be injured as a result (at [76] and [78]).
  3. [173]
    In contrast, in Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12, the New South Wales Court of Appeal held that the occupier of a building site had breached its duty of care to the plaintiff, an experienced workman who carried out work as a brick-cleaner, in circumstances where he was injured when he fell through a hole in scaffolding on the building site.  The accident was caused by the dangerous state of the scaffolding on the building site, “which bore a reassuring sign that it was safe”.  In rejecting the occupier’s submission, that it did not owe a duty to a tradesman such as the plaintiff, based on the principle in Papatonakis, Allsop P (with whom Hodgson and Whealy JJA agreed) said, after setting out the statement of principle from Brennan and Dawson JJ’s reasons in Papatonakis:

“20 The logical syllogism that the appellant [the occupier] sought to engage from this statement was that since [the plaintiff] should, in the exercise of due care for his own safety, have examined the scaffolding before he began work, any defect that he would have found was a defect in the premises that tradesmen such as [the plaintiff] were accustomed to meeting and safeguarding themselves against.

21 I reject this submission.  This way of putting the matter transforms contributory negligence into a complete defence to the claim.  It is not a fair application of what Brennan and Dawson JJ were saying.  Tradesmen of [the plaintiff’s] class are not accustomed to dealing with dangerous scaffolding, especially scaffolding that was said by a sign to be safe.  Undoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with.  That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession.”[236]

  1. [174]
    On the other hand, in Uniting Church in Australia Property Trust (NSW) v Takacs (2008) 174 IR 328 the Court of Appeal (Hodgson JA and McColl JA; Basten JA finding it unnecessary to determine this point (at [123])) found that the occupier did not breach any duty of care it may have owed to the plaintiff, an experienced painter who was injured when he fell from the roof of the occupier’s premises.  Hodgson JA accepted a submission for the occupier that any risks of injury, from going on to the roof, were obvious and did not call for any precautions to be taken by the occupier (at [49] and [52]).  His Honour did not expressly address a further submission that the occupier was entitled to assume that to ask an experienced professional painter to go on to a roof such as this was not asking him to do something outside his experience (also at [49]), although McColl JA did (at [62]), saying that the plaintiff “was an independent contractor with apparent expertise to safeguard himself in undertaking his trade”, referring to Papatonakis.
  2. [175]
    Another case in which the relevant risk was found to be an obvious one, not requiring any warning, or action to be taken, where the entrant was an experienced carpenter, is Minogue v Rudd [2013] NSWCA 345.  In that case, a home building site was in an unfinished state, including a kitchen floor in the course of construction, having joists but no floor covering, below which was an area proposed for a laundry.  The builder / occupier left to go overseas for a period of time.  During that time, a carpenter engaged to do work elsewhere on the site was injured when he fell through that unfinished floor, to the area below.  In circumstances where the unfinished state of the floor was obvious, and the plaintiff, as a qualified tradesman, was used to walking in partially constructed sites (at [69]), it was held there was no breach of duty by the occupier, by not installing a temporary floor in the kitchen area or constructing a barricade of some kind.  In this context, Macfarlan J (with whom Hoeben and Emmett JJA agreed) applied the statement of principle by Brennan and Dawson JJ in Papatonakis.  His Honour drew a distinction between an experienced tradesperson such as a carpenter, and children or other non-tradespeople who might come into the kitchen area (at [68]).  It was not necessary to decide whether the occupier might have breached a duty to such other persons.  As Macfarlan J said, at [73], “[t]he issue of breach of duty must be considered in the context of the particular plaintiff, bearing in mind what the defendant knew or should have known about the plaintiff or the class of persons of which the plaintiff forms part”.
  3. [176]
    There will be other aspects to the relationship between occupier and entrant, which will affect the content of the duty owed.  So, for example, in Thompson v Woolworths, it was significant that the plaintiff, in the pursuit of her own business, was delivering goods to the defendant for the purpose of sale in the course of the defendant’s business; and to do that, she was required to conform to a delivery system established by the respondent.[237]Accordingly, since the defendant established the system to which the plaintiff was required to conform, the defendant’s duty in that case covered not only the static condition of the premises but also the system of delivery.  The defendant’s obligation to exercise reasonable care for the safety of people who came on to its premises therefore extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of injury.[238]It was the failure on the part of the defendant to have a proper delivery system in place, which lead to the finding of negligence.[239]That was the focus of the breach analysis in circumstances where there were measures that could reasonably have been implemented, which would have averted the risk of harm.

Application in this case – scope of the duty of care owed by Downs Earthmoving – what did “reasonable care” require?

  1. [177]
    To the principles just referred to, it is appropriate to add the principle that the question of what a reasonable response to the relevant risk of harm in this case would be is to be considered objectively, but taking into account the particular subjective position of the first defendant, in the circumstances that were known, or ought to have been known, to the first defendant, before the subject incident occurred (that is, prospectively, not retrospectively with the benefit of hindsight).[240]
  2. [178]
    It is necessary of course to appropriately identify the relevant risk of harm – because that informs what a reasonable response to the risk might be.[241]The authorities caution against defining the risk too narrowly.  This is demonstrated, for example in Erickson v Bagley [2015] VSCA 220 at [33]-[34] and [40] and Port Macquarie Hastings Council v Mooney[2014] NSWCA 156 at [52]-[54], [67] and [70].  Having regard to the analysis undertaken in each of those decisions, in my view the relevant risk in this case was a risk that a security patrol officer might injure themselves, by tripping or falling on an unseen hazard on the driveway of the premises, in the night, in dark conditions.  As was observed in Erickson at [40], the risk ought not be confined to the “specific concatenation of circumstances in which the plaintiff was injured”, but rather the “type or nature of the event, or harm, that eventuated”.
  3. [179]
    For present purposes, it is sufficient to address the question of what “reasonable care” required by reference to the precautions the plaintiff alleges the occupier, Downs Earthmoving, ought to have taken, in response to the risk.  As to that, I refer, in particular, to paragraph 12(e) (lighting), (f) (warning), (g), (h), (i) (measures to remedy “defects in the driveway”, namely the concrete embankment) of the statement of claim.
  4. [180]
    In light of the primciples summarised above, having regard to the following factors, in my view, the scope of the duty owed by Downs Earthmoving to the plaintiff did notextend to warning him about the presence of the drain/embankment; or taking precautions such as lighting the driveway or otherwise (in terms of the things alleged in paragraph 12(g), (h) and (i) of the statement of claim):
    1. (a)
      The driveway, including the drain/embankment, was a permanent fixture, which had been in place for “20 odd years”, including the approximately 15 years that Downs Earthmoving had been engaging security patrol services, which also includes the period of time that Darling Downs Security was engaged to provide those services.
    2. (b)
      There is nothing hidden or obscured about the state of the drain/embankment.
    3. (c)
      Relevantly, it can be seen from both the Lombard’s document (exhibit 22) and the “first night brief” (exhibit 5), that security patrol officers were (or at least were expected to be) attending the premises 3 times per night over a lengthy period of time.
    4. (d)
      On the evidence, to Mr Davage’s knowledge, there had been no accidents involving the drain, in the 20 odd years it has been there.
    5. (e)
      Mr Davage engaged Darling Downs Security to provide security patrol services to his premises (not the premises occupied by Toowoomba Lube & Mechanical) – which required officers from Darling Downs Security to patrol along the driveway, enter the middle gate, check Downs Earthmoving’s premises at the back, and then leave the premises the same way.
    6. (f)
      Mr Davage (and so Downs Earthmoving) was entitled to assume the terms of his engagement of Darling Downs Security would be communicated to its employees.
    7. (g)
      Since the gate opened on the left hand side of the driveway (nearest the hedge) and opened outwards, in the ordinary course, there was no need for security officers to walk in, or near, or be in, the area where the drain/embankment was steepest (the corner, where the front shed adjoins the Downs Earthmoving shed), when performing the services Mr Davage had retained them to perform.[242]
    8. (h)
      Darling Downs Security was a specialist provider of security patrol services, which employed experienced and trained security officers, and carried out its own risk assessment of the premises – independently of, and without reference to the first defendant, its client.[243]
    9. (i)
      Beyond stipulating what part of the premises was to be checked, the number of inspections, and that they were to be semi-internal, Downs Earthmoving (and Mr Davage) did not have any control over how the Darling Downs Security patrol officers who would attend his premises would carry out their task of checking the premises.
    10. (j)
      The state of darkness, at night, at the premises, would have been obvious.
    11. (k)
      In circumstances where their role is to attend at multiple different industrial sites in the course of a 12 hour shift, in the night, knowing that it will be dark, for the purposes of a security patrol - it is reasonable to expect that a security patrol officer will be vigilant, and alert, not only to the potential for security risks and breaches, but also the potential for other hazards of various kinds, including footing hazards – which necessarily requires such an officer to use their torch and watch where they are going.[244]
    12. (l)
      This involves the application of a level of skill and experience (as well as the application of common-sense), which is above that expected to be demonstrated by someone who is an inexperienced, untrained non-security patrol officer.[245]
    13. (m)
      Downs Earthmoving was entitled to assume that Darling Downs Security officers who attended at its premises to provide the security services it was paying for were appropriately trained and experienced.
    14. (n)
      Downs Earthmoving was entitled to assume that Darling Downs Security officers who attended at its premises to provide the security services would use reasonable care for their own safety – and knowing that they would be there at night, in dark conditions, it would be reasonable to assume that they would use a torch to illuminate their pathway through the premises.
    15. (o)
      The drain/embankment was not an “unusual danger” – even in the dark, using reasonable care, by using a torch to illuminate their pathway, a security patrol officer would discover it.[246]
  5. [181]
    Having regard to all of those matters, in my view, the drain/embankment was either something that a reasonable occupier would not have foreseen as posing a risk to a person in the position of the plaintiff or, if it ought to have been foreseen as posing a risk, it is something that a reasonable occupier would not have thought it reasonably necessary to guard against injury to such persons.
  6. [182]
    It follows that I find that the first defendant, Downs Earthmoving did not breach its duty of care, as occupier, to the plaintiff.

Second Defendant’s Liability

Principles and authorities

  1. [183]
    At common law, an employer owes a duty to take reasonable care for the safety of its employees.  The duty does not oblige the employer to safeguard employees completely from all perils.[247]The employer is not an insurer of his employees against danger.[248]As explained by Windeyer J in Vozza v Tooth & Co Ltd(at 319):

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

  1. [184]
    As the employer of the plaintiff, the second defendant owed him a non-delegable duty to take reasonable care to avoid exposing him to unnecessary risks of injury,[249]including the risk that an injury may occur because of some inattention or misjudgement by the employee in performing his allotted task.[250]
  2. [185]
    Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk.[251]
  3. [186]
    The determination of whether there has been a breach of duty by the second defendant, Darling Downs Security, in this case, must be considered by reference to ss 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003 (WCRA) which operate against the background of the common law principles,[252]but modify them to an extent. 
  4. [187]
    I refer again to paragraph [178]above, regarding the identification of the risk of injury. 
  5. [188]
    It was not in issue that the risk of injury was foreseeable, and was not insignificant (s 305B(1)(a) and (b)).[253]The dispute in this case concerns whether, in the circumstances, a reasonable person in the position of Darling Downs Security would have taken certain precautions against that risk (s 305B(1)(c)).

Did the second defendant fail to take reasonable precautions in response to the relevant risk of injury?

  1. [189]
    Once again, that is matter which is to be judged prospectively, and objectively, taking into account the subjective position of Darling Downs Security, in the circumstances that were known, or ought to have been known, to it before the incident.[254]
  2. [190]
    In summary, the precautions that the plaintiff contends the second defendant ought reasonably have taken are:
    1. (a)
      conducting a “proper” risk assessment at the site (including at night, in order to understand the significance of night time hazards) – which, would have expressly identified the “drain” on the side of the driveway as a hazard;
    2. (b)
      asking the first defendant to install lighting at the site;
    3. (c)
      ensuring the plaintiff was made aware of the drain (by prior familiarisation with the site, or otherwise).[255]
  3. [191]
    On the basis of the evidence, I find it is reasonable to conclude that before this incident Darling Downs Security knew the following:
    1. (a)
      Its retainer with Downs Earthmoving was for 3 nightly security patrols (leaving to one side the day time patrols) of Downs Earthmoving’s premises (not the premises at the front of the property).
    2. (b)
      This required a security patrol officer to enter the front gate of the premises, walk down the driveway to the left of the buildings, checking the premises as this was done (which could include checking that the windows along the side of the building (including the front building) were not broken or open), open the middle gate, continue through to the rear of the premises, check the doors to the shed at the back, and on the way back out, lock the middle gate again on leaving, and exit the premises.[256]
    3. (c)
      This pathway of travel, in the usual course of conducting a security patrol, would not have the security officer walking very close to the front shed occupied by Toowoomba Lube & Mechanical – as Mr Davie said, that “was not in your general walk path”.
    4. (d)
      It had conducted a risk assessment of the premises, in January 2012, which had effectively identified the Downs Earthmoving site as a low level risk,[257]but had identified:
      1. that the premises “can get dark in places” – the response to which was “carry your torch”;
      2. that there might be “debris and trip hazards” - the response to which was “be aware, use caution, watch your footing, torch required”.
    5. (e)
      It had prepared a “first night brief”, in January 2013, which officers were expected to (and, on the plaintiff’s evidence, did) look at before attending a site for the first time, and subsequently as necessary.[258]That document carried the following warning: 

“Site safety:  be aware of uneven ground, slippery when wet, gets dark in places.  (Debris). 

Carry your torch, watch your footingslips trips and falls.”[259]

  1. (f)
    It is fair to assume that the reference to “debris” on these documents was a reference to Mr Davage’s collection of “junk” at the rear of the premises, which would appear to have been a particular feature of the premises.
  2. (g)
    Both the first night brief and the risk assessment were in a folder made available to officers conducting the particular “run” which included Downs Earthmoving - and it could be expected the officers would have looked at those documents. 
  3. (h)
    Its officers had been conducting regular nightly inspections at the Downs Earthmoving premises (required to be 3 per night, although perhaps not involving actual inspection on every occasion) for some time, at least since 2011.[260]There had been no complaints or feedback from security patrol officers about any issues or risks at the premises.
  4. (i)
    It employed people, including the plaintiff, who are trained, experienced security officers – whose training and experience includes knowledge of the need to be cautious and on the look out for potential hazards and dangers.
  5. (j)
    In so far as the plaintiff in particular was concerned, he was not only an experienced security patrol officer, but had also been responsible for drafting some of the operational documents of the business, namely the “Team Member Induction” and the “Standard Operating Procedures”.  Although those documents do not have client site specific content, the plaintiff’s role in drafting them demonstrates a level of skill and expertise, in and about the carrying out of the duties of a security officer, which could be considered to be above that of a security patrol officer without that added expertise.[261]
  6. (k)
    The plaintiff had not participated in training, provided by Darling Downs Security, on the run which included Downs Earthmoving.
  7. (l)
    The plaintiff had attended at the Downs Earthmoving premises on previous occasions, in 2012 and 2013, for the purpose of carrying out security inspections in the course of his duties as a patrol officer.
  8. (m)
    Security patrol officers were provided with a torch, that they were expected and directed (in terms of the first night brief) to use.  The torch provided would have illuminated the driveway and other areas around Downs Earthmoving sufficiently in order to walk around them in the dark.[262]
  1. [192]
    In that context, and from the point in time before the plaintiff’s fall, the question is what would a reasonable person in the position of the employer have done?  In this case, it is relevant to note s 305B(2)(c) and 305C(a) of the WCRA.  In considering what precautions a reasonable person would have taken against a risk of injury, the court is to consider the burden of taking precautions to avoid the risk, including the burden of taking precautions to avoid similar risks of injury for which the person may be responsible.
  2. [193]
    In so far as the plaintiff relies upon the report of Mr O'Sullivan to establish that the measures he proposes are reasonable, in my view, to a considerable degree Mr O'Sullivan’s report suffers from the flaw that it is engaged in a retrospective analysis – that is, beginning with what actually happened to the plaintiff, and from that perspective identifying measures that ought to have been taken (in particular, specifically identifying the drain / embankment as a hazard, and requiring the client to provide lighting).
  3. [194]
    It also begins from an identification of a risk of harm that is narrower than, in my view, the authorities referred to above indicate is appropriate.  If the risk is identified in a narrow way (the risk that an officer will be injured by slipping or falling on, in or near the concrete drain), the analysis of what is reasonable in response to that risk, might be different from the analysis of what is reasonable in response to the risk as I have found it ought properly to be identified (at paragraph [178]above).[263]
  4. [195]
    On behalf of Darling Downs Security it was submitted that it would not be reasonable to expect it - as a provider of security services, which employs a number of trained and experienced patrol officers, who attend a large number of industrial sites in any one shift – to identify, on a risk assessment (and/or “first night brief”) each and every potential tripping hazard that might be present on all of these sites.  In relation to the Downs’ Earthmoving premises, in particular, reference was made in this context to “Mr Davage’s collection”, of various bits and pieces of “junk” and machinery parts etc.  It was submitted that it would be unreasonable, indeed impossible, to identify all the potential tripping hazards that could give rise to.  It was also submitted that the employer is entitled to rely on the experience of its employees (that is, trained security personnel).  In that context, it was said that a reasonable response to the potential risk  is to advise employees that there are tripping hazards, there is debris, the premises gets dark in places – so you should carry your torch, and be careful.  It is said that is precisely what the second defendant did do.
  5. [196]
    On the other hand, the plaintiff submits that in circumstances where Darling Downs Security officers frequently visited the premises; such visits would often be in conditions of reduced light or darkness; the officers would require access to all areas of the premises; and they might be acting under emergency conditions (such as the suspected presence of, apprehension of, or pursuit of an intruder), a reasonable employer would have conducted a risk assessment which specifically referred to the hazard posed by the drain, would have asked Downs Earthmoving to install security lighting and would have made sure all officers attending the site had been previously familiarised with the site.[264]
  6. [197]
    I turn then to consider the measures it is contended a reasonable employer, in the position of Daring Downs Security, would have taken.
  7. [198]
    In my view, looked at prospectively, from the perspective of Darling Downs Security, it would not be reasonable to expect the employer to have required the client, Downs Earthmoving, to install security lighting.  As Mr Davie said, although it would be preferable for everything to be lit up, “they don’t build it just for us”.[265]If it was considered, at this site, reasonable for the employer to have required the client to install lighting that would mean it was necessary to do that with each of their clients, which would be extremely burdensome, and demonstrates the unreasonableness.  The employees were provided with, and directed to use, an artificial light source (namely, a torch), which would have provided sufficient illumination, provided it was being used appropriately.[266]
  8. [199]
    In relation to the issue of lighting, I note also that Mr O'Sullivan referred in his report to an Australian Standard for “external lighting at a workplace”.[267]In my view, in a practical sense, there is a need to distinguish a “workplace” (for example, such as an employee of Downs Earthmoving, or Toowoomba Lube & Mechanical might regard the premises), from the place where security officers are engaged to patrol, overnight, and outside of working hours.  Simply on the basis of that reference in Mr O'Sullivan’s report, I would not regard this as indicating a contrary finding to that expressed in the preceding paragraph.
  9. [200]
    The fact that Mr Davage has now installed lighting does not affect the first or second defendant’s liability (see s 305C(c) of the WCRA).   
  10. [201]
    In relation to the content of the risk assessment and first night brief, once again, it is necessary to consider what the reasonable employer would have done, before the incident on 9 April 2013 occurred, with the knowledge the employer had, and ought to have had, at that time.  
  11. [202]
    To an extent, I consider the submission on behalf of the second defendant is misplaced.  The question is not whether a reasonable employer would have identified each and every tripping hazard on this premises – by reference to the extensive collection of “junk” at the rear of the premises - but whether such an employer ought to have identified the drain next to the concrete driveway as such a hazard, that being in a different category to the “junk”.
  12. [203]
    Notwithstanding that observation, I find that I am unable to conclude, having regard to the matters set out in paragraph [191]above, that a reasonable response to the risk of injury identified at paragraph [178]above required a reasonable employer to have expressly identified this drain in the risk assessment and “first night brief”.
  13. [204]
    In my view, the warning, in those two documents, to “carry your torch”, “be aware, use caution, watch your footing, torch required” (risk assessment); “be aware of uneven ground”, “carry your torch, watch your footing slips trips and falls” (first night briefs), communicated to trained and experienced security patrol officers, was all that reasonableness required in response to the risk of injury in this case.
  14. [205]
    It is more probable than not, in my view, that if the plaintiff was carrying his torch in such a manner as to illuminate his path of travel, and watching his footing, he would have been aware of the drain, and not have fallen.
  15. [206]
    Finally, in terms of the precaution of ensuring staff are familiar with the premises to be patrolled, I find that Darling Downs Security did have a system in place to do this, at least in terms of familiarising patrol officers with what was expected at each premises, and visiting the premises with another experienced security guard, on at least three occasions.[268]All that can be said is that Darling Downs Security did not insist that the plaintiff to do that, when he returned to work there in February 2013, it being the case, as I have found, that the plaintiff said he did not need to do that.  
  16. [207]
    There may be circumstances in which an employer, in discharging their duty, must insist on an employee undertaking certain training.  However, in this case, for the following reasons, I do not consider that the failure to do that, even if it was considered unreasonable, could give rise to liability in negligence, because I am not satisfied that such failure was a necessary condition (s 305D(1)(a)) of the harm that eventuated:
    1. (a)
      again, by reference to the circumstances as they were known prior to this incident, and having regard to the purpose of the training as described by both Mr Davie and the plaintiff, it is not to be reasonably expected that particular attention would have been drawn to the presence of the drain (and, further, given the number of times the plaintiff had already been to the premises, including in the 2 weeks prior to the incident, it is difficult to see how attending in the course of such training would have brought to his attention anything he was not otherwise aware of, from his own inspections); and
    2. (b)
      significantly, given the circumstances in which the plaintiff came to be on the premises in the early hours of 9 April 2013, and the findings I have made about what that involved, I am not satisfied that, even if he had participated in the training, that would have prevented the harm from eventuating – since I have found that the plaintiff’s attention was intently focussed on looking into the front shed, for a particular purpose, not connected with a routine security inspection, which diverted his attention from looking where he was walking.
  17. [208]
    I therefore find that the second defendant did not breach its duty of care to the plaintiff.

Quantum

  1. [209]
    Notwithstanding my conclusion regarding liability, it is appropriate that I also address, albeit briefly, the issue of quantum.

General damages

  1. [210]
    It is necessary to address the general damages that may have been awarded against the first defendant (the claim in respect of which is governed by the common law) separately from the second defendant (in respect of which the Workers Compensation and Rehabilitation Regulation 2003 (Regulation) applies).

First defendant – common law

  1. [211]
    I refer to the discussion above of Dr Saxby’s evidence,[269]and the evidence of the plaintiff, Ms Stanley and Mrs Wale.[270]
  2. [212]
    The ankle injury plainly caused the plaintiff pain and discomfort, particularly in the period up to the end of December 2013, although having improved considerably by then, as observed by Ms Stanley.  It has interfered to a small degree with the plaintiff’s recreational activities.  I do not consider the evidence supports a finding that it has significantly interfered with his ability to carry out domestic activities that he would previously have done.  To the extent that Dr Saxby attributes a 1% whole person impairment that is on the basis of the plaintiff’s reported pain, and is not accountable by objective measures.   The pain experienced by the plaintiff has not been such as to cause him to seek medical treatment, since late 2013.
  3. [213]
    Having regard to the authorities cited by the plaintiff and the first defendant, I consider that the appropriate award for general damages would be $7,500.  I consider that Tawera v BDS Recruit Pty Ltd[2014] QDC 167 is perhaps the most comparable (in which an award of $5,000 for a minor ankle injury was made – see at [34]-[42]).  I have had regard also to Prasad v Ingham’s Enterprises Pty ltd [2015] QDC 200 at [82]-[89] (in particular the attribution of $10,000 general damages for the past, in circumstances where the impact of the injury appears to have been more significant than in this case).
  4. [214]
    The cases which might be said to support a higher award involved more serious injuries:  for example Dailly v Hamilton [2002] QDC 223 at [10] and [27] (an ankle impairment assessed at 5% lower limb impairment with mild ankle instability); and Duck v Woolworths [2011] QDC 312 at [3], [69], [78]-[84] (an injury involving a lisfranc fracture to the foot, with a greater assessment of impairment, and significant impact on recreational activities).
  5. [215]
    Interest would be payable on this award of damages.

Second defendant – Regulation

  1. [216]
    I consider that item 143 of schedule 9 to the Regulation applies (minor ankle injury), since this is a soft tissue injury.   The range of ISV is 0 to 5, with factors affecting the ISV assessment said to include whether the worker has fully recovered from the injury and, if not, whether there is any tendency for the ankle to give way; and whether there is scarring, aching or discomfort.
  2. [217]
    Although the plaintiff submitted that item 142 (moderate ankle injury) applies, I do not accept that submission, given that the examples of injury given for item 142 are more serious than the injury here (a fracture, ligamentous tear or similar injury causing moderate disability) and having regard to the comment that an ISV at or near the bottom of the range provided for (6 to 10) will be appropriate if there is a whole person impairment for the injury of 6%.  Even on the basis of Dr Gamboa’s evidence, such a finding would not be supported.
  3. [218]
    I note that, at the beginning of the section of the part of schedule 9 dealing with ankle injuries, there is a general comment that “[t]he appropriate ISV for the vast majority of ankle injuries is 1 or 2”.
  4. [219]
    In the circumstances of this case, I would regard an ISV of 2 as appropriate.  Consequently, the award for damages would be $2,540.00.  Interest is not payable.

Past economic loss

  1. [220]
    I would assess the plaintiff’s past economic loss at no more than 5 weeks (being the time taken off work after the injury), at his then rate of pay, which was agreed to be $500 pet per week.  This amounts to $2,500, to which interest and superannuation would also have to be added.
  2. [221]
    For the reasons that I will address in relation to the claim for future economic loss, I do not consider it has been established that the injury has resulted in any diminution of the plaintiff’s earning capacity, nor, in any event, that he has suffered any loss of earnings, such that I would not have awarded the additional amount he claims by way of past economic loss.

Future economic loss

  1. [222]
    For the purposes of this analysis, I do not distinguish between the common law principles (applicable to the claim against the first defendant) and the position under s 306J of the WCRA (applicable to the claim against the second defendant) on the basis that the latter did not alter the common law test.[271]
  2. [223]
    The plaintiff’s claim for economic loss (both in the past and the future) is advanced on the basis that, as a result of the negligence-caused injury to his ankle, his earning capacity has been diminished, because he is no longer able to work as a security guard, which he says he would have done in the past, and in the future, on the weekend, to supplement his income. 
  3. [224]
    I gratefully adopt the following summary of the relevant principles, from the reasons of White JA in Allianz Australia Insurance Limited v McCarthy[2012] QCA 312 at [48]-[50]:[272]:

“[48] In Graham v Baker Dixon CJ, Kitto and Taylor JJ noted:

‘… an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss.’

That is, it must be demonstrated that the injured person’s impairment has resulted in loss in monetary terms. This statement of fundamental principal was restated in Medlin v State Government Insurance Commission:[273]

‘A plaintiff in an action in negligence is not entitled to recover damages for loss of earning capacity unless he or she establishes that two distinct but related requirements are satisfied. The first of those requirements is the predictable one that the plaintiff’s earning capacity has in fact been diminished by reason of the negligence-caused injury. The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in additional to general damages for pain, suffering and loss of enjoyment of life. It is that “the diminution of … earning capacity is or may be productive of financial loss.”’

[49] In Nichols v Curtis[274]Fraser JA, with whom the President and Chesterman JA agreed, observed of a finding by the primary judge that there was no evidence that the plaintiff had lost employment or, in seeking employment, had rejected work because of her injury:

‘The effect of those findings was that the applicant did not merely fail to prove that it was more probable than not that she would have earned more money if she had not been injured; she failed to establish that there was any real prospect that she would have earned more money. On that basis there was no room for the application of Malec v JC Hutton Pty Ltd.’

[50] His Honour continued:

“Nor did the primary judge make the mistake of thinking that damages for economic loss were awarded for loss of earnings rather than for loss of earning capacity. Whilst damages are awarded for loss of earning capacity, they are awarded only to the extent that the loss produces or might produce financial loss. In Medlin v State Government Insurance Commission, Deane, Dawson, Toohey and Gaudron JJ held that a plaintiff in [an] action for negligence is not entitled to recover damages for loss of earning capacity unless the plaintiff establishes both that the plaintiff’s earning capacity has been diminished by reason of the negligence-caused injury and that the diminution of earning capacity was or might be productive of financial loss.’”[275]

  1. [225]
    I note that Fraser JA went on to say, immediately after the passage just quoted, that “[t]here was no error in the primary judge’s observation in paragraph 39 of the reasons that the applicant did not discharge her onus of proving that her incapacity to do heavy work caused her economic loss merely by proof of that impaired capacity itself.”  In Nichols v Curtis, however, the Court of Appeal took a different view about that evidentiary issue.
  2. [226]
    In my view, for the following reasons, the plaintiff has not proved, on the balance of probability, that his earning capacity has been diminished because of the ankle injury:
    1. (a)
      The medical evidence of Dr Saxby does not support such a finding – Dr Saxby’s opinion was that he did not think the injury should adversely affect his ability to work as a security officer.
    2. (b)
      In so far as Dr Gamboa expressed a different view, I have preferred the evidence of Dr Saxby about the extent and consequences of the injury but, in any event, note that Dr Gambaro’s view is briefly expressed and appears to reflect what the plaintiff told him (that he struggled with his previous occupational duties as a security officer), as opposed to an objective analysis of capacity.
    3. (c)
      Prior to the present incident, the plaintiff was under medical advice to avoid one aspect of security work, crowd control work, due to his head injury.
    4. (d)
      I am not satisfied on the balance of probability that the mild ankle injury sustained by the plaintiff is such as to prevent him, should he wish to do so, working as a security officer, in some capacity, on the weekends.  Even Ms Flynn, the occupational therapist, whose opinion about capacity aligned with Dr Gamboa’s, acknowledged that the plaintiff would be capable of doing security work that did not involve prolonged standing, provided he has the opportunity to alternate between sitting and standing regularly.
    5. (e)
      In that regard, it was apparent from the evidence that the nature and scope of security work varies widely, and would include “static” security work, which would not involve prolonged standing or walking.   The onus is on the plaintiff to prove his loss of capacity, and resultant loss of earnings.  He has failed to lead (for example) any evidence about enquiries he has made about obtaining weekend security work; what that work would have entailed; why he would be physically prevented from doing that work, because of his ankle injury (and not some other injury, for example, his previous head injury, or his subsequent back pain/trochanteric bursitis); whether other security work, for which he would be physically capable, would be available on weekends.  These examples are apart from the other evidence that might also have been expected, of having applied for and been rejected for such work; or having tried and failed to obtain such work, in each case as a result of his ankle injury.
    6. (f)
      In so far as his previous aspiration regarding joining the police is concerned, I do not consider that the plaintiff has established any real prospect that he would have done that, or that it would have resulted in him earning more money.  The evidence in fact was to the contrary.[276]
  3. [227]
    In addition, I am also not satisfied that, even if the plaintiff had established an impaired capacity, for security patrol work, as a result of his ankle injury, that that has been productive of financial loss.  As the plaintiff’s work history reveals, prior to February 2013, he had already embarked on a different career path, in an administrative / managerial role.  He took a temporary step back, to security patrol work, at a time when his family circumstances were difficult.  But once those circumstances were resolved, he returned to administrative / managerial work, and has successfully continued on that path.  The evidence is to the effect that he presently earns more than double what he was earning as a security patrol officer at the time of the incident; considerably more than he could ever have earned as a security patrol officer; and that there is every expectation that he will advance and be promoted in the future, with attendant increases in income.  He has demonstrated an earning capacity far in excess of that which he was earning at the time of this incident.  His earning capacity in that regard is entirely unaffected by the ankle injury. In those circumstances, and having regard also to his family circumstances, I regard it as entirely speculative that he might have looked to do extra work, on the weekends, as a security guard; such that I do not consider the principle in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 to be engaged here.
  4. [228]
    But in any event, for the reasons already outlined, I am in the first instance not satisfied the plaintiff’s earning capacity has been impaired, as a result of the ankle injury.

Future expenses

  1. [229]
    I do not consider that the plaintiff has established his claim for the cost of domestic assistance, in terms of cleaning, lawn mowing or car cleaning.  I take into account the evidence of Ms Stanley, Ms Ware, and Dr Saxby’s opinion, in this regard.  The evidence as to the nature and extent of his injury does not support the claim; and in addition no evidence has been adduced to support the incurring of any such expenses to date.
  2. [230]
    It may be fair to include a modest amount for the cost of ongoing, occasional anti-inflammatories or analgesics, and I accept the defendants’ submission that an amount of $500 is appropriate.
  3. [231]
    I do not accept that there is any future treatment required, or established on the evidence.  The plaintiff has not consulted his GP, since November 2013 about his ankle; and Dr Saxby says no further treatment is required.

Out of pocket expenses

  1. [232]
    The out of pocket expenses would include amounts referred to on the WorkCover payments/recoveries history,[277]not including the two amounts paid to Wolfgang Seckler Pty Ltd, for which there was no evidence.  This seems to leave an amount of $2,531.
  2. [233]
    I do not accept the plaintiff’s claim regarding past expenses incurred on car cleaning, lawn moving and domestic cleaning, in the absence of any evidence of such payments (apart from the conclusion already expressed about whether the incurring of such costs has been established as causally related to the ankle injury).
  3. [234]
    It may be accepted that the plaintiff would have incurred expenses for analgesics and anti-inflammatories in the past.  But again, without any evidence of such expenses, and bearing in mind the plaintiff has had other experiences in the past (his back pain) which may well have seen him incur the cost of such expenses, I would have allowed no more than $500.00

Contributory negligence

  1. [235]
    Although it is customary, notwithstanding an unfavourable conclusion on the question of liability, to address quantum, there is, in my view, necessarily an inevitable artificiality in addressing matters such as contributory negligence (and apportionment) in such circumstances, because in truth, a properly considered finding on contributory negligence would have to take account of the actual findings giving rise to liability on the part of a defendant (that is, what action, or omission, on the part of the defendant gave rise to the finding of liability).
  2. [236]
    With that qualification, I will record that, had I formed a different view on liability, I would have found that the plaintiff failed to take reasonable care for his own safety, which contributed to his injury.   The plaintiff is an experienced security patrol officer; cognisant of the need to be vigilant about the possibility of unseen hazards on industrial premises that he patrols at night, in the dark, and the need to use his torch constantly to be on the lookout for such things.[278]He was provided with a torch by his employer, and instructed to use it.  Reasonable care for his own safety required that he use his torch, appropriately, to illuminate his path of travel through the premises.  He failed to do that – distracted as I find he was by looking intently in through the window of the front shed, in a manner which was not consistent with how security inspections were routinely conducted on the premises. 
  3. [237]
    But the extent of apportionment which would be appropriate would depend on:
    1. (a)
      the findings made about liability, of each defendant – that is, on what basis they were (had I done so) found to have breached their duty to the plaintiff; and
    2. (b)
      the different duties owed by each of the defendants – the relevant principles in relation to contributory negligence in the context of an employer / employee relationship[279]being different to those in relation to occupier / entrant; and
    3. (c)
      in those contexts, conclusions reached about the causative effect of the plaintiff’s failure to use reasonable care for his own safety on the occurrence of the injury.
  4. [238]
    In a global sense, I would regard the plaintiff’s failure to use reasonable care as requiring him to bear the majority of the responsibility for his injury, in so far as the first defendant, Downs Earthmoving, is concerned.  In that regard, I would regard the submission on behalf of the first defendant, that the plaintiff bear 66% to 80% as a fair one, resulting in a finding of perhaps 75%.
  5. [239]
    In so far as the second defendant, Darling Downs Security is concerned, there are different considerations, having regard to the non-delegable duty owed by the employer.  Nevertheless, I would regard the plaintiff’s conduct on 9 April 2013 as amounting to more than “mere inadvertence, inattention or misjudgement”, and that in terms of s 305H(1) he failed to comply with the instruction in the first night brief (and the risk assessment) to use his torch and watch his footing (s 305H(1)(a)); failed to use his torch in a way that was designed to reduce his exposure to injury – that is, by illuminating where he was walking (s 305H(1)(c)); and, in undertaking the exercise that he was with Mr Tosi on the morning in question, failed to take account of the obvious risk that if he did not use his torch to look where he was going, he might fall (s 305H(1)(f)).
  6. [240]
    In those circumstances, had I found the employer breached its duty of care to the plaintiff, for example, by failing to bring the drain to the attention of the plaintiff, either in the form of the first night brief/risk assessment, or familiarisation/training, I would consider that the plaintiff ought to bear a reasonable amount, but less than half the responsibility for his injury (say 30%).

Apportionment

  1. [241]
    Lastly, I will record that as between the defendants, if I had found them both liable for the injury, I would have accepted the submission on behalf of the first defendant, that an appropriate apportionment would be 80% to the second defendant/employer and 20% to the first defendant/occupier, for the reasons outlined in summary in [82] of the first defendant’s submissions.

Orders

  1. [242]
    For the foregoing reasons, the plaintiff’s claim is dismissed as against the first and second defendants.  There will be judgment for the defendants.  I will hear the parties as to costs.

Footnotes

[1]  Agreed List of Issues, filed in Court on 17 November 2015.

[2]  The parties (by email from counsel for the first defendant dated 13 November 2015) advised that no party would be submitting that the CLA applies, as all parties agree the injury is “an injury for which compensation is payable under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which section 34(1)(c) or 35 of that Act applies” (section 5(1)(b) CLA).

[3]  [6] of the statement of claim; [6] of the second defendant’s defence; [6] of the first defendant’s defence.

[4]  [9] of the statement of claim; [9] of the first defendant’s defence; [9] of the second defendant’s defence.

[5]  [6] of the first defendant’s defence; [2] of the plaintiff’s reply to the first defendant’s defence.

[6]  [10] of the statement of claim.

[7]  [11] of the statement of claim.

[8]  [11] of the first defendant’s defence.

[9]  [11] of the second defendant’s defence.

[10]  [3] of the plaintiff’s reply to the first defendant’s defence; [2] and [3] of the plaintiff’s reply to the second defendant’s defence.

[11]  [12] of the statement of claim.

[12]  [12] of the first defendant’s defence.

[13]  [4(a)] of the plaintiff’s reply to the first defendant’s defence.

[14]  [13] of the statement of claim.  See also Plaintiff’s submissions at [37].

[15]  [13] of the second defendant’s defence.

[16]  [15] of the second defendant’s defence; [14] of the first defendant’s defence; [15] of the statement of claim.

[17]  T 1-18.36 – 1-19 (refers to certificate 2); but see 2-21 (clarifies as certificate 3).

[18]  See exhibit 1, which summarises the various employment of the plaintiff from about July 2009 onwards.  Also T 1-19.41 – 1-20.

[19]  T 1-50.5-.13.

[20]  T 1-23.26-.38 and 1-24.1-.9.

[21]  T 2-138.24 (Mr Davie).

[22]  Exhibit 1, p 2.

[23]  T 2-17.38-.47.

[24]  T 1-22

[25]  T 1-20.36-.41 and T 1-21.45.

[26]  T 1-23.20-.24; 1-45.38 – 1-46.1.

[27]  T 1-24.

[28]  Exhibit 1.

[29]  T 1-44.

[30]  T 2-72.21-.34.

[31]  Exhibit 1 shows him finishing with Darling Downs Security on 30 September 2013; but also shows him starting with WIN Television on 22 July 2013.  The plaintiff’s evidence was that he stopped doing work for Darling Downs Security when he started at WIN Television (T 1-46.9).

[32]  T 1-33.21 – 1-34.5.

[33]  T 1-34.7-.15.

[34]  T 1-36.6-.25.

[35]  T 1-37.1-.8.

[36]  T 1-46.33-.41.

[37]  T 1-47.20-.30.

[38]  T 1-48.41.

[39]  T 1-46.39-.46.

[40]  T 1-41.8-.18.

[41]  T 2-58.11.

[42]  T 2-57.31-.33.

[43]  See exhibit 3.

[44]  Exhibit 1, p 3; T 1-48.33.

[45]  T 2-152.34 – 2-153.1.

[46]  T 1-40.30-.44.

[47]  T 1-48.15-.24; 1-49.42.

[48]  T 2-102.25.

[49]  Exhibit 14 (photos at the rear of the premises).

[50]  T 2-18.42-.45.

[51]  Exhibit 2, photographs 1 and 2.

[52]  See below, the plaintiff describes falling down this drain, at the level of the 3rd window:  T 1-28.

[53]  This is apparent in exhibit 2, photographs 1 and 2.

[54]  Exhibit 10 at p 5.

[55]  T 2-40.35.

[56]  T 2-122.

[57]  Referring to exhibit 2, photo 1; T 2-123.17-.37.

[58]  T 2-126.21.

[59]  T 2-127.36.

[60]  T 1-171.9-.31.

[61]  Exhibit 4 shows the right hand side, which is completely blocked off.

[62]  See exhibit 14 (photographs); T 1-120 – 1-121 (Mr O'Sullivan); 2-19 (plaintiff); 2-167 (Mr Davie).

[63]  T 2-101.44.

[64]  T 1-54.5 (plaintiff);

[65]  T 2-116.18-2-117.45.   This is corroborated by the invoice, exhibit 19, which refers to the supply and installation of 3 lights along the eastern driveway, one of which is described as “a replacement of an existing fluoro”.

[66]  These can be seen in exhibit 2, photograph 2.

[67]  Exhibit 19.

[68]  T 2-115.40 and 2-117.5-.8.

[69]  T 2-131.47.

[70]  Exhibit 22 is the “Lombards Security brief sheet” relating to Downs Earthmoving.

[71]  T 2-138 and 2-162 (Mr Davie)

[72]  T 2-106.  An example of which is exhibit 20

[73]  T 2-106.38 – 2-107.

[74]  Exhibit 5 (and, from the previous security provider, exhibit 22).

[75]  T 2-165.5-.19.

[76]  T 2-150.47.

[77]  T 1-53.4-.10.

[78]  T 2-111.19.

[79]  T 1-19.4-.18.

[80]  T 2-20.36-.47.

[81]  T 2-21.23-.28.

[82]  T 2-21.40 – 2-22.5.

[83]  T 3-8.9-.21.

[84]  T 1-19.20-.31.

[85]  See also Mr Davie’s evidence at T 2-138 – 2-139, and exhibit 5, timetables for October 2009 (showing three occasions of training) and January 2010 (showing two occasions of training).

[86]  T 1-25.  A door or gate being “carded” meant that a business card would be inserted into the door, or placed on the padlock (by opening the padlock, and piercing the card onto the lock, so that it won’t fall off) of the gate, as proof of the security patrol officer having been there.  T 1-57.

[87]  T 1-63.33; 1-65.43.

[88]  T 1-53.27.

[89]  T 1-53.30.

[90]  T 2-166.31-.42 (some full stops inserted, where they do not appear in the transcript).

[91]  T 2-172.23.

[92]  T 2-60.31.

[93]  Exhibit 5.

[94]  T 1-55; 1-59.29 – 1-60.11; 2-76.22.  His evidence in this regard is somewhat at odds with other evidence he gave, that he was not given any documentation by Darling Downs Security in relation to the Downs Earthmoving site, and that no documentation was available to him when he attended to assist John Tosi on the night in question:  T 1-30.23-.27.

[95]  T 2-144.33.

[96]  T 2-144.45 – 2-145.5.

[97]  T 2-145.36.

[98]  T 2-145.7.

[99]  T 3-8.30.

[100]  T 1-56.10-.13.

[101]  In contrast, an external check would be where the security officer just stops outside the fence line, has a look, and drives on.  T 1-56 (plaintiff).  See also T 2-142.15-.30 (Mr Davie).

[102]  T 1-53.12-.27.

[103]  Exhibit 11.

[104]  Exhibit 11.

[105]  Exhibit 16.

[106]  Exhibit 12.

[107]  T 2-67.34 – 2-68.17.

[108]  T 2-148.39 – 2-149.11.

[109]  T 2-146.27.

[110]  T 2-68.5.

[111]  T 2-145.24-.31.

[112]  T 2-157.38.

[113]  T 2-155.40.

[114]  T 2-155.42 - 2-156.2.

[115]  T 2-157.5.

[116]  T 2-156; 2-158. 

[117]  T 2-158.27.

[118]  T 2-170.4-.10.

[119]  T 2-169.45 – 2-170.2.

[120]  T 2-169.42.

[121]  T 2-149.20-.41.

[122]  See, for example, T 3-3 (Mr Tosi); 2-149, 2-151 and 2-168 (Mr Davie).

[123]  T 2-41.

[124]  T 2-157.41-.45.

[125]  T 1-30.7-.21.

[126]  Exhibit 15; and exhibit 26 (aide to understanding exhibit 15).

[127]  For example, 26 December 2011.

[128]  T 1-65.

[129]  T 2-29 – 2-30.

[130]  See, for example, at T 2-26 – 2-27.

[131]  See exhibit 15, exhibit 26; and the plaintiff’s evidence at T 2-24.31 - 2-34.30.

[132]  T 2-142.32 – 2-143.11.

[133]  T 2-107.25 and 2-111.1-.8.

[134]  T 2-39 – cf and cn 2-39.2 (where the plaintiff says it is not his evidence that he had no idea the drain existed as at 9 April); 2-39.13 (where he says he wasn’t aware of the drain) and 2-40.15-.18.  Also, 2-55.

[135]  Depicted in photograph 3, of exhibit 2 (which was taken by the plaintiff).

[136]  T 2-103.

[137]  T 2-151.

[138]  T 3-2.21 – 3-3.2.

[139]  T 3-7.3.

[140]  T 3-3.5 – 9 (there is an error in the transcript at .8, where the word “didn’t” ought to read “did”, according to my understanding of Mr Tosi’s evidence).

[141]  T 3-6.22.

[142]  Cf T 3-9.24 which could suggest it was before.

[143]  T 2-40.36-.41.

[144]  T 2-37.1-.31; also 2-56.

[145]  See also at T 2-36 (“on most occasions” he said he would shine his torch light on the windows as he walked up the driveway).

[146]  T 2-19.26 - 2-20.20.

[147]  T 1-65 – 1-67.  A similar process was described by Mr Davie:  T 2-150 – 2-151.

[148]  T 1-26.40 – 1-27.7.

[149]  T 1-26.

[150]  T 1-26.43 – 1-27.2.

[151]  T 1-27.38 – 1-28.3.

[152]  T 1-27.8-.36.

[153]  T 1-28.45.

[154]  T 2-35.1-.14 (plaintiff).  See also exhibit 21 (Mr Davie’s evidence at 2-159 – 2-160).

[155]  T 2-108.

[156]  T 2-110.

[157]  Exhibit 10, report dated 20 April 2015.

[158]  See paragraph [88] above; also 2-45.18.

[159]  T 1-105.8-.20.

[160]  T 1-108; 1-115.7-.17.

[161]  T 3-4.26 – 3-5.12.

[162]  T 3-5.24-.28.

[163]  T 3-7.22-.24.

[164]  T 1-57 and 1-58.

[165]  T 3-5 – 3-6.

[166]  T 3-6.38-.44.

[167]  T 3-7.13.

[168]  Cf T 2-34.34 – 2-35.27.

[169]  T 1-50.32 – 1-51.7.

[170]  T 1-51.39 - 1-52.5.

[171]  T 1-31.38 – 1-32.5

[172]  T 1-32.

[173]  T 1-32.42 – 1-33.17.  See also paragraphs [112] and [113] below (regarding Dr Bookless, who is the specialist the plaintiff saw) – on the basis of that material, it seems the plaintiff returned to work in about mid-May 2013, and therefore had about 4-5 weeks off work.

[174]  T 1-40.12-.28.

[175]  Exhibit 6.

[176]  Exhibit 7.

[177]  T 1-74.39.

[178]  T 1-74.23-.32.

[179]  T 1-75.10-.24.

[180]  See paragraph [24] above.

[181]  T 1-35.45.

[182]  T 2-98.39.

[183]  T 2-87.38-.46.

[184]  T 2-88 – 2-89.

[185]  T 2-92.

[186]  T 2-94 – 2-95.

[187]  T 2-97 – 2-99.

[188]  T 1-36.30-.32 and 1-39.

[189]  T 1-37.

[190]  T 1-38.1-.8.

[191]  T 1-38.20 – 1-39.8.

[192]  T 1-39.18.

[193]  T 1-21.20-.34.

[194]  T 1-47.

[195]  T 1-49.

[196]  T 1-21.1.-.19.

[197]  Exhibit 23.

[198]  Exhibit 18, p 3 (21 March 2014).

[199]  T 2-50.43 – 2-51.24.

[200]  T 2-52.

[201]  Exhibit 18, p 2; T 2-54.

[202]  T 2-80.27 and 2-85.11 (prior to November 2013).

[203]  Exhibit 9.

[204]  Exhibit 8.

[205]  T 1-86.4-.6 (Dr Saxby); T 1-76.32-34 (Dr Bookless);

[206]  T 1-81.18-.24; 1-86.1-.13; Dr Gamboa’s opinion was to similar effect:  T 1-100.

[207]  Exhibit 8, p 4; T 1-80.17.

[208]  T 1-84.8-.22.

[209]  T 1-90.37-.42 (and, in addition, noted of his own observation, that the actual calf girths were equal, and his comment about some difference in muscle tone was just a matter of looking at the muscles themselves).

[210]  T 1-82.35-.45.

[211]  T 1-90.43 – 1-91.29.

[212]  T 1-83.9.

[213]  T 1-92.

[214]  Exhibit 13.

[215] T 2-15.4-.8 and 2-16.19-.27.

[216]  T 2-9.35 – 2-10.3

[217]  Exhibit 10.

[218]  Cf at p 9 Mr O'Sullivan makes reference to the plaintiff’s reply to the second defendant’s defence, where he admits he did receive the first night brief.  In his oral evidence, he said his opinion was based on the content of the first night brief (in his view being deficient as not identifying this particular hazard), so it did not make a difference to his opinion whether the plaintiff saw it or not (T 1-105.1-.6)

[219]  T 1-110.43 – 1-111.

[220]  T 1-121.17-.21; also 1-111 and 1-113.10-.17.

[221]  See s 32 of the WCRA (definition of “injury”) and see also Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519 at [23]-[24].

[222]  See [2(a) to (e)] of the statement of claim; [2(a) and (b)] of the first defendant’s defence (the scope of the admitted duty of care being set out in [2(b)(iii)]); and [2] of the second defendant’s defence.  See also Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at [23]-[24].

[223]  Note also Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [145] per Gummow and Hayne JJ as to the relevance of the “totality of the relationship between the parties” to determination of the existence of a duty of care.

[224]  (1985) 156 CLR 7 at 20.

[225]  Emphasis added.

[226]  First defendant’s submissions at [11], [12], [15], [17] and [18].

[227]  Emphasis added.

[228]  See also Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [53] per Leeming JA (McColl JA and Basten JA agreeing).

[229]  Papatonakis at 20-21.

[230]  Citations omitted.  These are amongst the cases cited by Brennan and Dawson JJ as illustrating the principle set out at p 30, and quoted at paragraph [163] above.

[231]  (1866) LR 1 CP 274. 

[232]  [1951] AC at p 745.  Another example is Pinborough v Minister of Agriculture [2974] 7 SASR 493, in which it was found that the existence of a weaker portion of a ceiling, through which an employee of a pest control firm engaged to work at the occupier’s premises fell and was injured, was not an unusual danger to a pest control operator, as it was a “hazard which they would commonly incur in the ordinary course of their duties” (at 499).

[233]  Emphasis added.

[234]  Referring in this context to Papatonakis at 20-21 per Mason J.

[235]  Emphasis added.

[236]  Emphasis added.

[237] Thompson at [3] and [26].

[238] Thompson at [27].

[239] Thompson at [38], approving the reasoning of McMurdo J (as his honour then was) in the Court of Appeal (set out at [17]).

[240] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31] per French CJ, Gummow, Hayne, Heydon and Crennan JJ; Neindorf v Junkovic (2005) 222 ALR 631 at [93] per Hayne J; Vairy v Wyong Shire Council (2005) 223 CLR 422 at [60]-[61] per Gummow J and at [126]-[129] per Hayne J.   See also Lusk v Sapwell [2012] 1 Qd R 507 at [17]-[20] and [22]; Erickson v Bagley [2015] VSCA 220 at [35] and [46] per Kyrou and Kaye JJA.

[241] Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at [59].

[242]  See paragraph [34] above (Mr Davie also said “it’s not in your general walk path”, its “off to one side”).

[243]  In this regard, it could not be said Mr Davage had detailed knowledge of any risk assessment process undertaken, however, he did recall someone turning up with paperwork, and “they looked around the place, and there was nothing – nothing was ever said…”.

[244]  This was acknowledged by the plaintiff (see paragraphs [45] and [46] above); Mr Davie (see paragraph [69] and [71] above) and Mr Tosi (see paragraph [47] above).

[245]  See paragraphs [46] and [69] above.  See also Minogue v Rudd, discussed at paragraph [175] above.

[246]  This was the effect of Mr Davie’s and Mr Tosi’s evidence (see paragraphs [71], [82] and [83] above).

[247] Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318 per Windeyer J (with whom McTiernan, Kitto, Taylor and Owen JJ agreed).

[248] Turner v South Australia (1982) 42 ALR 669 at 670 per Gibbs CJ.

[249] Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12].

[250] Turner v South Australia (1982) 42 ALR 669 at 674 per Murphy, Brennan, Deane and Dawson JJ; Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12].

[251]  See Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.

[252] Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [11], [15], [27], [39] and [41] (in relation to the very similar provisions in the Civil Liability Act 2002 (NSW)); see also Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [22] and [23].

[253]  T 3-25.21.

[254]  See paragraph [177] above.

[255]  Plaintiff’s submissions at [37], referring to paragraphs 13(d), (e), (g), (h) and (i)] of the statement of claim.

[256] See paragraph [39] above.

[257]  See paragraph [72] above.

[258]  At least in so far as the “first night brief” is concerned, this was the plaintiff’s evidence – see paragraph [56] above.

[259]  Emphasis added.

[260]  Precisely when Darling Downs Security took over the patrol of Downs Earthmoving, from Lombard’s Security, was not clear.  But Mr Tosi said he started working for Darling Downs Security in 2011, and was doing the patrols at Downs Earthmoving from then (see paragraph [83] above).

[261]  This was reflected in Mr Davie’s description of the plaintiff as “a lot quicker and sharper on the uptake than most patrol officers” – see paragraph [52] above.

[262]  See paragraphs [71], [82] and [83] above.

[263]  This is demonstrated in Port Macquarie Hastings Council v Mooney [2014] NSWCA 156 at [76].

[264]  Plaintiff’s submissions at [41].

[265]  See paragraph [70] above.

[266]  The additional suggestion, by Mr O'Sullivan, of a head lamp, was not the subject of any further consideration, or evidence, at the trial.

[267]  Exhibit 10 at p 12.

[268]  See paragraph [49] above.

[269]  See paragraphs [138]-[148] above.

[270]  See paragraphs [109]-[125] above.

[271]  See, eg, Vowles v Osgood [2012] QSC 82 at [55] per McMeekin J.

[272]  Although her Honour was in the minority as to the result in that case, the general principles summarised by her Honour were not called into question by the majority’s reasoning.

[273]  (1995) 182 CLR 1.

[274]  [2010] QCA 303.

[275]  Emphasis added.  Footnotes omitted.

[276]  See T 2-58.

[277]  Exhibit 25.

[278]  See paragraphs [45] and [46] above.

[279]  The principles were recently summarised in Kennedy v Queensland Alumina Ltd [2015] QSC 317 at [85]-[88], including by reference to s 305H of the WCRA.

Close

Editorial Notes

  • Published Case Name:

    Humphries v Downs Earthmoving Pty Ltd and another

  • Shortened Case Name:

    Humphries v Downs Earthmoving Pty Ltd and another

  • MNC:

    [2015] QDC 323

  • Court:

    QDC

  • Judge(s):

    Bowskill QC DCJ

  • Date:

    11 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
3 citations
Jump To
Cite 1 - (2009) 239 CLR 420
Cite 2 - (2009) 239 CLR 420
Cite 3 - (2009) 239 CLR 420
Allianz Australia Insurance Limited v McCarthy [2012] QCA 312
2 citations
Jump To
Cite 1 - [2012] QCA 312
Cite 2 - [2012] QCA 312
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
1 citation
Jump To
Cite 1 - (1987) 162 CLR 479
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
3 citations
Jump To
Cite 1 - (2005) 79 ALJR 839
Cite 2 - (2005) 79 ALJR 839
Cite 3 - (2005) 79 ALJR 839
Dailly v Hamilton [2002] QDC 223
1 citation
Jump To
Cite 1 - [2002] QDC 223
Davis v Nolras [2005] NSWCA 379
5 citations
Jump To
Cite 1 - [2005] NSWCA 379
Cite 2 - [2005] NSWCA 379
Cite 3 - [2005] NSWCA 379
Cite 4 - [2005] NSWCA 379
Cite 5 - [2005] NSWCA 379
Duck v Woolworths Ltd [2011] QDC 312
1 citation
Jump To
Cite 1 - [2011] QDC 312
Erickson v Bagley (2015) VSCA 220
3 citations
Jump To
Cite 1 - (2015) VSCA 220
Cite 2 - (2015) VSCA 220
Cite 3 - (2015) VSCA 220
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
1 citation
Jump To
Cite 1 - (2002) 211 CLR 540
Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12
2 citations
Jump To
Cite 1 - [2011] NSWCA 12
Cite 2 - [2011] NSWCA 12
Indermaur v Dames (1866) L.R. 1 C.P. 274
1 citation
Jump To
Cite 1 - (1866) L.R. 1 C.P. 274
Jones v Bartlett (2000) 205 CLR 166
2 citations
Jump To
Cite 1 - (2000) 205 CLR 166
Cite 2 - (2000) 205 CLR 166
Kennedy v Queensland Alumina Limited [2015] QSC 317
2 citations
Jump To
Cite 1 - [2015] QSC 317
Cite 2 - [2015] QSC 317
Lusk v Sapwell[2012] 1 Qd R 507; [2011] QCA 59
1 citation
Jump To
Cite 1 - [2012] 1 Qd R 507
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
Meandarra Aerial Spraying Pty Ltd v GEJ Geldard Pty Ltd[2013] 1 Qd R 319; [2012] QCA 315
1 citation
Jump To
Cite 1 - [2013] 1 Qd R 319
Medlin v State Government Insurance Commission (1995) 182 CLR 1
2 citations
Jump To
Cite 1 - (1995) 182 CLR 1
Cite 2 - (1995) 182 CLR 1
Minogue v Rudd [2013] NSWCA 345
2 citations
Jump To
Cite 1 - [2013] NSWCA 345
Cite 2 - [2013] NSWCA 345
Neindorf v Junkovic (2005) 222 ALR 631
1 citation
Jump To
Cite 1 - (2005) 222 ALR 631
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 519
Nichols v Curtis [2010] QCA 303
2 citations
Jump To
Cite 1 - [2010] QCA 303
Cite 2 - [2010] QCA 303
Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7
6 citations
Jump To
Cite 1 - (1985) 156 CLR 7
Cite 2 - (1985) 156 CLR 7
Cite 3 - (1985) 156 CLR 7
Cite 4 - (1985) 156 CLR 7
Cite 5 - (1985) 156 CLR 7
Cite 6 - (1985) 156 CLR 7
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253
1 citation
Jump To
Cite 1 - [2015] NSWCA 253
Pinborough v Minister of Agriculture (1974) 7 SASR 493
1 citation
Jump To
Cite 1 - (1974) 7 SASR 493
Port Macquarie Hastings Council v Mooney [2014] NSWCA 156
3 citations
Jump To
Cite 1 - [2014] NSWCA 156
Cite 2 - [2014] NSWCA 156
Cite 3 - [2014] NSWCA 156
Prasad v Ingham's Enterprises Pty Ltd [2015] QDC 200
1 citation
Jump To
Cite 1 - [2015] QDC 200
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
2 citations
Jump To
Cite 1 - [2014] NSWCA 98
Cite 2 - [2014] NSWCA 98
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
2 citations
Jump To
Cite 1 - (2007) 234 CLR 330
Cite 2 - (2007) 234 CLR 330
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
1 citation
Jump To
Cite 1 - [2007] HCA 42
Tawera v BDS Recruit Pty Ltd [2014] QDC 167
1 citation
Jump To
Cite 1 - [2014] QDC 167
Thompson v Woolworths (Q'Land) Pty Limited [2005] HCA 19
1 citation
Jump To
Cite 1 - [2005] HCA 19
Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234
6 citations
Jump To
Cite 1 - (2005) 221 CLR 234
Cite 2 - (2005) 221 CLR 234
Cite 3 - (2005) 221 CLR 234
Cite 4 - (2005) 221 CLR 234
Cite 5 - (2005) 221 CLR 234
Cite 6 - (2005) 221 CLR 234
Turner v State of South Australia (1982) 42 ALR 669
3 citations
Jump To
Cite 1 - (1982) 42 ALR 669
Cite 2 - (1982) 42 ALR 669
Cite 3 - (1982) 42 ALR 669
Uniting Church in Australia Property Trust (NSW) v Takacs (2008) 174 IR 328
2 citations
Jump To
Cite 1 - (2008) 174 IR 328
Cite 2 - (2008) 174 IR 328
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
Vowles v Osgood [2012] QSC 82
1 citation
Jump To
Cite 1 - [2012] QSC 82
Vozza v Tooth & Co Ltd (1964) 112 C.L.R 316
2 citations
Jump To
Cite 1 - (1964) 112 C.L.R 316
Cite 2 - (1964) 112 C.L.R 316
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
1 citation
Jump To
Cite 1 - (1980) 146 C.L. R. 40

Cases Citing

Case NameFull CitationFrequency
Morris v Evolution Traffic Control Pty Ltd [2023] QDC 1951 citation
1

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