A10/1985 – Drew v Hobart Fire Brigade
Full Court (Neasey J, Nettlefold J, Brettingham–Moore J)
[Order Sheet]
Serial No. 10/1985
List “A”
File No. FCA 127/1985
ANTHONY BERNARD DREW v. HOBART FIRE BRIGADE
REASONS FOR JUDGMENT
FULL COURT:
NEASEY J.
NETTLEFOLD J.
BRETTINGHAM–MOORE J.
15th March 1985
ORDERS OF THE COURT:
1.
Appeal allowed.
2.
Judgment given and entered after the trial of the action set aside and in lieu thereof,
judgment for the appellant against the respondent for $85,000 damages.
Full Court (Neasey J)
[Page 1]
Serial No. 10/1985
List “A”
File No. FCA 127/1983
ANTHONY BERNARD DREW v. HOBART FIRE BRIGADE
REASONS FOR JUDGMENT
FULL COURT:
NEASEY J.
15th March 1985
I agree with the reasons and conclusions of Brettingham–Moore J. and have nothing to add.
Full Court (Nettlefold J)
[Page 1]
Serial No. 101985
List “A”
File No. FCA 1271983
DREW v. THE HOBART FIRE BRIGADE BOARD
REASONS FOR JUDGMENT
FULL COURT:
NETTLEFOLD J.
15th March 1985
The issue in this appeal is quite a narrow one. The only challenge to the judgment now pursued
is to his Honour‘s conclusion that the facts did not establish a breach by the respondent of the
duty of care which it owed to the appellant. At the trial of the action counsel agreed that it would
be appropriate for the learned trial judge to apply the tests outlined by Mason J. in Wyong Shire
Council v. Shirt (1979–80) 29 A.L.R. 217 at 221 in this passage:–
“A risk of injury which is quite unlikely to occur, such as that which
happened in Bolton v. Stone, may nevertheless be plainly foreseeable.
Consequently, when we speak of a risk of injury as being ’foreseeable‘
we are not making any statement as to the probability or improbability of
its occurrence, save that we are implicitly asserting that the risk is not
one that is far–fetched or fanciful. Although it is true to say that in many
cases the greater the degree of probability of the occurrence of the risk
the more readily it will be perceived to be a risk, it certainly does not
follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the
tribunal of fact must
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first ask itself whether a reasonable man in the defendant’s position
would have foreseen that his conduct involved a risk of injury to the
plaintiff or to a class of persons including the plaintiff. If the answer be
in the affirmative, it is then for the tribunal of fact to determine what a
reasonable man would do by way of response to the risk. The perception
of the reasonable man‘s response calls for a consideration of the
magnitude of the risk and the degree of the probability of its occurrence,
along with the expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the defendant may
have. It is only when these matters are balanced out that the tribunal of
fact can confidently assert what is the standard of response to be ascribed
to the reasonable man placed in the defendant’s position.”
It is appropriate for us to apply that passage also.
The dominant fact of the case is that the appellant suffered a life threatening injury while doing
work he was employed to do in a manner not shown to have departed from the method accepted
or acquiesced in by the respondent. I am satisfied that a reasonable man in the respondent‘s
position would have foreseen that the method adopted for performing this recurring task
involved a risk of injury to the employees called on to perform it. The medical evidence shows
that an injury of the type suffered by the appellant could result from an application of force to an
unprotected head of the order of severity of a punch. Other evidence, and in particular that of Mr.
Johnston, shows that some application of force to the unprotected head of an employee was to be
expected. And that evidence also shows that it was by no means unlikely that an event would
occur in which such an application of force would be of the order of severity of a punch.
I am satisfied that a reasonable man in the position of this respondent, in response to that risk,
would have taken before the 19th August 1976 the steps which the respondent in fact took after
the accident. Those steps could be taken
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easily and cheaply and they constituted a more efficient and much safer way of doing the work.
If those steps had been taken before the 19th August 1976 this accident would not have occurred.
I have given a great deal of thought to the question whether the approach which I have outlined
has the effect of applying too high a standard of care. That is the real problem in the case,
particularly in view of the opinion formed by the learned and experienced trial judge. But, after
much thought, with respect, I consider that the learned judge gave too little weight to the
following factors:–
1.
The extremely vulnerable nature of the human head as shown by the medical
evidence.
2.
The confined space in which the work had to be done.
3.
The fact that it was inevitable that from time to time a coupling on the end of a
hanging hose would be in close proximity to the unprotected head of an employee who was
concentrating on moving up and down to pull on the rope in order to raise the hoses to the
top of the tower. It was to be expected that, when doing that work, an employee would be
concentrating on his task and, hence, would not always be mindful of the proximity of the
hanging couplings. It must not be overlooked that these couplings were heavy and there
was a lug on the side of them. It was inevitable that, from time to time, there would be
substantial movement of the hanging couplings. It is a trite piece of knowledge that a
person is very vulnerable if he receives a blow to his unprotected head while his feet are
firmly planted on the ground. It is that trite piece of knowledge which constitutes the
principal reason why a responsible boxing manager will not let one of his charges fight if
he is unfit; the risk of him being hit when his feet are flat on the ground so that he
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takes the unmitigated force of a powerful punch is far too great.
As I have said, it was inevitable that, from time to time, the hanging couplings would be moving
and, sometimes, moving to a considerable degree. There is a number of obvious reasons why
movement would occur, not the least of which is force applied by hoses being raised to hoses
already on pegs. Not infrequently movement would occur without an employee being conscious
of it because he was concentrating on his task. An employee could get a solid blow to the head
when the lug on a coupling came into his line of movement at a point above his head as he
moved upwards to take fresh hold on the rope. While doing that his head could hit the coupling
with considerable force while his feet were firmly planted on the ground. The probability is that
this is precisely what happened to the appellant. I am aware of the fact that the learned judge
rejected that view. But, with respect, I feel free to and I do differ from him on that point. The
following is a significant passage in Pallier’s evidence, Pallier being a witness whom the learned
judge accepted as truthful:–
“As we were pulling up on the hoses, we‘d stand up grasp the rope and
then you’d come down to a squatting position then stand up again to get
afresh hold on the hose. During the standing up firefighter Drew grabbed
his forehead and sat down and said he‘d hit his head.”
Counsel for the respondent faintly argued that this Court should hold that, if the respondent was
guilty of negligence, the appellant was guilty of contributory negligence. But the burden of proof
of contributory negligence is on the respondent and that burden has not been discharged. The
conduct of the appellant can be explained easily as understandable inadvertence not amounting
to contributory negligence.
[Page 5]
For these reasons I am of the opinion that this Court should make the following orders:–
1.
Appeal allowed.
2 . Judgment given and entered after the trial of the action set aside and in lieu thereof
there is to be judgment for the appellant against the respondent for $85,000 damages.
Full Court (Brettingham–Moore J)
[Page 1]
Serial No. 101985
List “A”
File No. FCA 1271983
1855 of 1976
DREW v. THE HOBART FIRE BRIGADE BOARD
REASONS FOR JUDGMENT
FULL COURT:
BRETTINGHAM–MOORE J.
15th March 1985
On or about 19th August 1976, the appellant was employed by the respondent. One of his duties
was to hoist fire hoses to the top of a tower in order that they should dry. Whilst doing this, his
head came into contact with a brass coupling on the end of a hose. This resulted in serious
injuries. He brought an action against the respondent claiming damages for negligence and
breach of duty and breach of contract of employment. The trial judge dismissed his claim, but
assessed damages at the sum of $85,000.
The appellant appealed from such decision on the following grounds:–
“1. That the dismissal of the appellant’s claim was against the evidence and the weight
of evidence and wrong in law.
2.
That the learned trial judge erred in fact and in law in holding that a reasonable man
in the position of an officer of the respondent would not have foreseen that the system of
work involved a risk of injury to a class of persons including the plaintiff.
[Page 2]
3.
That the learned trial judge erred in fact in law in concluding that the magnitude of
the risk of any injury and the degree of probability of its occurrence were not such as to
call for any alleviating action.
4.
That the findings referred to in grounds 2 and 3 hereof were against the evidence and
the weight of evidence.
5.
That the learned trial judge erred in assessing damages at $85,000 in that that sum
was manifestly inadequate.”
The Court was informed at the commencement of the hearing of this appeal that ground number
5 was abandoned.
The relevant facts as found by his Honour the trial judge were not challenged. Those facts can
conveniently be summarised as follow:–
(1) The appellant and another employee were hoisting canvas hoses of a maximum
length of 100 feet onto a tower to hang vertically to dry. This was done manually by means
of a rope and pulley.
(2) When fully hoisted, the centre of each hose was placed over a peg at a height of
about 50 feet from the ground.
(3)
At each end of each hose was a brass coupling which weighed about 2¼ pounds.
(4) The hoses were of variable lengths and therefore the brass couplings hung at variable
heights from knee level to above head level of those standing on the ground.
(5) These hose ends with the brass couplings were hanging in two rows about 1.2 metres
apart at the base of the tower.
[Page 3]
(6)
The men hoisting the hoses were required to work between these rows.
(7) If the hoses were swinging or if they were obstructing those doing the hoisting they
could be hung over the tower framework or could be tied back.
(8) There was no wind at the time of the appellant‘s accident and they were not hung on
the framework or tied back.
(9) The ends of the hanging hoses were not “swinging” at the time of the accident
although the ends of the hoses actually being hoisted were moving to a slight extent
otherwise than in a vertical plane.
(10) The appellant hit his head on a coupling when he stood up from a crouched position.
(11) There had been no prior episode of injury from hose couplings but another employee,
6 feet 4 inches tall, had been hit by them on occasions around the shoulders and back when
hoisting hoses.
(12) The appellant said that he did not consider the hoses to be a danger during the
process of hoisting them.
It is clear that no protective headgear was worn prior to the accident by employees who were
employed in hoisting the hoses but that such headgear was required to be worn subsequently. It
is also clear that the hoses are now hoisted by means of an electric winch.
His Honour’s comments as to the facts, his application of the law and his ultimate findings on the
issue of liability are expressed in the following passage in his reasons for judgment:–
[Page 4]
“That the plaintiff suffered a blow to the head is undoubted. The
difficulty is to determine the manner in which that blow occurred. I do
not regard the plaintiff as a truthful witness. That fact has more
importance in the context of damages than of liability, but it has some
small significance in the latter context. Where there is a difference
between his evidence and that of Pallier, I prefer the evidence of Pallier.
But I can do no other than accept his evidence that he saw, or thought he
saw, a coupling coming towards him; that he took evasive action, and
that it was then that his head was struck. But I accept the evidence of
Pallier that the plaintiff was not knocked down by the blow and he was
crouched down heading outside the perimeter of the tower when Pallier
saw him. Pallier said that the blow occurred as Drew was beginning to
stand up from the crouched position. The conclusion seems inevitable
that a hanging coupling and Drew‘s head made contact, but it seems to
me, in the light of all the evidence, more probable than not that Drew
moved towards the coupling rather than that the coupling swung towards
him. The contact was not severe enough to knock him to the ground, but
it was severe enough to have the medical consequences which have been
detailed. The medical evidence was that in order to create those
consequences the blow would have to be of the order of severity of a
punch. But it is common knowledge that a blow of some severity can
occur by a sharp movement of the head or body. Anyone who has struck
his head on a cupboard door or in some other situation of reasonably
close confinement can testify to the fact that it requires only a sharp
movement of the head to cause a situation where some temporary loss of
some part of consciousness can occur.
Is the Board to be liable in damages to the plaintiff for an injury which
occurred in these circumstances, and probably in this way? Both counsel
were agreed that it would be appropriate for me to apply the tests
outlined by Mason J. in Wyong Shire Council v. Shirt (1979–80) 29
A.L.R., 217 at 221, in this passage:–
’A risk of injury which is quite unlikely to occur, such as that which
happened in Bolton v. Stone, may nevertheless be plainly foreseeable.
Consequently, when we speak of a risk of injury as being
‘foreseeable’ we are not making any statement as to the probability
or improbability of its occurrence, save that we are implicitly
asserting that the risk is not one that is far–fetched or fanciful.
Although it is true to say that in many cases the greater the degree of
probability of the occurrence of the risk
[Page 5]
the more readily it will be perceived to be a risk, it certainly does not
follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the
tribunal of fact must first ask itself whether a reasonable man in the
defendant‘s position would have foreseen that his conduct involved a
risk of injury to the plaintiff or to a class of persons including the
plaintiff. If the answer be in the affirmative, it is then for the tribunal
of fact to determine what a reasonable man would do by way of
response to the risk. The perception of the reasonable man’s response
calls for a consideration of the magnitude of the risk and the degree
of the probability of its occurrence, along with the expense, difficulty
and inconvenience of taking alleviating action and any other
conflicting responsibilities which the defendant may have. It is only
when these matters are balanced out that the tribunal of fact can
confidently assert what is the standard of response to be ascribed to
the reasonable man placed in the defendant‘s position.’
The first question to be asked then is whether reasonable men in the
position of the officers of the Board would, or should have foreseen that
the system used for raising the hoses to their drying positions was such
as to involve a risk of injury to the plaintiff or a class of persons
including the plaintiff. Injury in this context seems to me to mean much
the same as the expression ‘bodily harm’ means in the criminal law, that
is to say, a physiological change in the body which is more than trivial.
Superintendent Johnson described having been ‘nudged’ in the course of
carrying out this activity, but he did not depose to any injury having been
sustained by a firefighter in the course of an activity which was carried
out at very frequent intervals. It was not suggested that it had ever
occurred to him that the process involved any risk of injury. The plaintiff
himself said that he did not regard the system as dangerous. It was not
suggested by Mr. Pallier that he saw any inherent danger in the process.
It seems to me that there was nothing in the procedure used which would
suggest to a reasonable person that it created any untoward risk of injury.
Of course there is always risk of injury when a head is in proximity to a
hard object, for example, the carrying out of work in confined spaces
such as a boiler room, a yacht, a sawmill, a joinery room; wherever a
person, by abruptly moving his head, may bring it into contact with a
hard object
[Page 6]
there is some risk of injury, but it is not a duty of an employer to
eliminate hard objects. I have come to the conclusion that a reasonable
man in the position of an officer of the Board would not have foreseen
that the system involved a risk of injury to a class of persons including
the plaintiff. And even if such a reasonable man ought to have foreseen
that there was some risk of injury, then, in my opinion, the magnitude of
the risk and the degree of probability of its occurrence were not such as
to call for any alleviating action. Accordingly, in my view, the plaintiff
fails on the issue of liability.”
Under s.47(2) of the Supreme Court Civil Procedure Act, a Full Court has full power to review
the judgment appealed from on questions of fact as well as law. It is open to such Court to
interfere with the decision of a trial judge because of failure to draw an inference which is open
upon the evidence: Livingston v. Halvorsen (1978) 22 A.L.R. 213; Warren v. Coombes (1979)
142 C.L.R. 531; Sharma v. The Law Society of Tasmania, Unreported, Tas., Serial No. 221980,
per Green C.J.
I am unable to reach the same conclusion as the learned trial judge by applying the law to the
facts and to the inferences to be drawn from the facts. I cannot agree with his Honour‘s view that
there was nothing in the procedure used which would suggest to a reasonable person that it
created any untoward risk of injury.
It seems to me from the facts in this case that a risk of injury to persons such as the appellant
when engaged in hoisting the hoses should have been foreseen. That risk was not, it seems to me,
“far–fetched or fanciful”. There was a system whereby two men were pulling hoses up in a
confined space with couplings hanging down, some at head height, quite close to them. Some of
the hoses would move sideways for three or four inches from time to time. I consider that a
reasonable person with knowledge of this system of work, as the respondent Board should have
had, should have realised that there was a likelihood of injury
[Page 7]
to an employee placed in the same position as was the appellant at the relevant time. Such injury
was not a matter of insignificance. Common experience indicates that, if the head comes into
contact with a hard object such as one of these hose couplings, serious injury is possible. The
evidence of Dr. Billings confirms this:–
“HIS HONOUR: Well there is a question I want to ask, and it is probably appropriate to
ask it now. Are you able to assist me at all, Doctor, in relation to the causation of the
injury? I am a little puzzled that this subdural haemotoma could arise from an injury in
which there was no apparent laceration or bruising of the skin of the scalp.
WITNESS:
Oh yes, that is absolutely consistent, Your Honour. In fact, it’s the rule,
one could say, with subdural haemotomas that the injury can be relatively trivial, and what
happens is that a little vessel which is running across the space between the dura and the
brain is torn. And that can be in just a violent concussive movement the brain actually
moves within the skull and tears the vessel. It‘s just a blow of that kind can cause that,
even though it hasn’t been severe.
HIS HONOUR: A slap you are illustrating, is that what you –
WITNESS:
Well, knocking the head, for instance, against a cupboard door is the kind
of injury that I‘ve encountered on a number of occasions where a subdural haemotoma has
resulted.
HIS HONOUR: And just taking evasive action, could that do it?
WITNESS:
That would be very unlikely. That might occur in a very elderly person
where the vessels, perhaps, were particularly fragile. But no normally it is a blow which is
sufficient at any rate to cause movement of the brain within the cranial cavity.”
The respondent could have adequately responded to the risk by requiring employees doing the
work in question to wear protective helmets. The fact that these were required to be worn after
the accident, and have in fact been worn, demonstrates that it was a practical step which
[Page 8]
could have been taken prior thereto. The provision of an electric winch subsequent to the
accident also demonstrates another practical step which could have been taken beforehand. There
is no evidence that either of these steps would have been impracticable or inconvenient or
disproportionately expensive.
There are accidents which occur in unusual circumstances and which are not due to any want of
reasonable care on the part of the employer. But I do not regard this as being one of them. The
presence of hoses hanging down with heavy couplings at their ends, near the heads of men
working in a confined space, was something which in my view should have been regarded by the
management as a potential cause of head injury unless protective steps were taken.
The fact that the appellant did not consider the couplings to be a danger is not the end of the
matter. The test is an objective one. It is a question whether a reasonable man in the position of
the respondent Board ought to have foreseen the possibility of an employee hoisting the hoses
sustaining an injury by hitting his head on a coupling. The dicta of Lord MacMillan in Glasgow
Corporation v. Muir (1943) A.C. 448 at p.457 are apt:–
“The standard of foresight of the reasonable man is, in one sense, an
impersonal test. It eliminates the personal equation and is independent of
the idiosyncrasies of the particular person whose conduct is in question.
Some persons are by nature unduly timorous and imagine every path
beset with lions. Others, of more robust temperament, fail to foresee or
nonchalantly disregard even the most obvious dangers. The reasonable
man is presumed to be free both from over–apprehension and from over–
confidence, but there is a sense in which the standard of care of the
reasonable man involves in its application a subjective element. It is still
left to the judge to decide what, in the circumstances of the particular
case, the reasonable man would have had in contemplation, and what,
accordingly, the party sought to be made liable ought to have foreseen.
Here there is room for diversity of
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view, as, indeed, is well illustrated in the present case. What to one judge
may seem far–fetched may seem to another both natural and probable.”
My own view is that no reasonable employer should have allowed its employees to work in the
circumstances here without requiring them to wear protective headgear. The absence of accidents
over a long period does not conclude the issue of foreseeability in favour of the respondent. It
seems to me that this was due to good luck rather than good management.
In my view the respondent was in breach of its duty to provide a safe system of work for the
appellant. The question arises as to whether he was guilty of contributory negligence. In its
amended defence the respondent alleged that the appellant was negligent in the following
respects:–
“(a) he did not keep a proper lookout whilst hoisting the hoses.
(b) He placed himself in the vicinity of the hose couplings when he knew or ought to
have known that they would swing and hit him.
(c)
He failed to cause the hose couplings to be restrained.
(d) He hoisted the hoses without proper care causing the coupling attached to the hoses
to swing about.”
There is a relative dearth of evidence in relation to the issue of contributory negligence. I can
find nothing to support the allegation contained in paragraph (d). As for (a), the trial judge’s
finding that he accepted the appellant‘s evidence that he saw, or thought he saw, a coupling
coming towards him and it was then that his head was struck does not support any inference that
he was not keeping a proper look out. It seems to be open to find that
[Page 10]
the appellant was doing his best to keep an eye on the couplings in the course of hoisting the
hoses in a confined space. As for (b), it does not seem to me that it was open to find that the
appellant placed himself closer to the couplings than was necessary in the course of his duties,
nor do I consider that it was open to find that he ought to have known that they would swing and
hit him. That leaves paragraph (c) to be considered. I do not believe that it was open upon the
evidence to say that the appellant was wanting in proper care in not restraining the hose
couplings. There was no wind at the time. He was not the person in charge of the operation. If
each hose had been secured to the side of the tower after it was fully hoisted, that would
presumably have eliminated the danger. However, it seems to me that a direction to this effect
was a matter for the management to decide upon and that the appellant cannot be blamed, under
the circumstances, for not having taken the initiative.
Since there is not now any challenge to his Honour’s assessment of damages, I would allow the
appeal and direct that judgment be entered for the appellant (plaintiff) for $85,000.