Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256

McMeekin J considered the issue of contributory negligence in the scenario of a worker stepping over a chain in his pathway (as opposed to taking an alternative route), which had a unseen hook catching his spats causing him to trip and fall heavily on his elbow and injuring his non dominant shoulder:

[5] Mr Whiteford, for the plaintiff, referred me to Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 where McColl JA discussed the principles that apply to the task of determining contributory negligence in the employment and non-employment situations in terms which meet the present case:

―13 At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which he or she was exposed: Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 (at [16]) per McHugh J.

…..

15 The appellant was not the respondents’ employee. Different considerations arise in the case of contributory negligence on the part of such persons: Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 (at [40]). In an employment situation a court is required to take into account, in determining whether a plaintiff has been guilty of contributory negligence, the fact that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing the plaintiff to unnecessary risks. In such a case, the question is whether, in the circumstances and under the conditions in which the worker was engaged, the worker’s conduct amounted to mere inadvertence, inattention or misjudgement or to negligence rendering him responsible in part for the damage: Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (at 310).

16 The circumstances which attract particular consideration when a person is injured in an employment situation may also be relevant, however, when the question of contributory negligence arises in a non-employment context. A finding of contributory negligence turns on a factual investigation of whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. Contributory negligence focuses on the conduct of the plaintiff tested against that of a reasonable person in the plaintiff’s position. The duty owed by the defendant is one of the factors that must be weighed in determining whether the plaintiff has so conducted him or herself as to fail to take reasonable care for his or her safety: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 (at [30]) per Gleeson CJ, McHugh, Gummow and Hayne JJ.

[6] I would add a reference to McLean v Tedman (1984) 58 ALJR 541 at 545 with its acknowledgment that the employer must bring into account, in formulating a safe system of work, the possible distraction of an employee engrossed in his task.

Discussion

[18] Obviously Mr Hughes’ actions in failing to clear the small hook protruding from the chain or sign was of significance, causally, in his accident. That of course is relevant.

[19] There is no absolute rule in life or in the workplace that it is inherently and unreasonably unsafe to step over something, whether it be a chain or otherwise, at about the height of the chain here. I have no doubt that this happens every day in our society in many and varied situations, and without injury. It is of course foreseeable that in stepping over an obstruction one might clip it and trip and fall. But while foreseeability of the risk in question is certainly necessary it is not a sufficient condition to ground an obligation to act or refrain from acting. The question is not generally discussed in the context of contributory negligence as foreseeability is established on the plaintiff’s case but see the discussion regarding foreseeability by Gibbs CJ in a different context in Jaensch v Coffee (1984) 155 CLR 549. It is necessary then that the defendants point to something, other than an everyday risk that is commonly avoided, as justifying a finding of contributory negligence.

[20] First, there was no reason, absent some express warning, why Mr Hughes should have been particularly wary of the chain. He appreciated that it was there to keep machinery out, not workers such as him in.

[21] In these circumstances I cannot see that it was unreasonable for a worker to use the shortest and most direct route to access machinery so that he could go about his employer’s business. It is commendable that a worker conscientiously sought to go about his tasks efficiently. The submission that it was unreasonable for Mr Hughes not to use the side door, which would have taken him a short distance out of his way from the time he decided to access the machine, is not made out.

[22] Here the defendants accept that the plaintiff was exposed to an unnecessary risk – it was not simply that the chain was low slung but that there were poking through it small hooks capable of catching on clothing, or in this case spats, and of which the plaintiff was unaware. It is not that the plaintiff failed to clear the chain that caused his fall but rather that he did not clear the small hook protruding that crucial margin out from the chain.

[23] It is against this background that the plaintiff’s actions need to be judged. The decision to step over the chain was not done in any conscious way. The plaintiff simply did not think of the alternatives. There was no deliberate weighing up of the risks and rewards of lifting the chain or stepping over it. Stepping over was the simpler of the two methods by a small margin.

[24] As the defendants contend it was a simple matter to raise the chain, and raising the chain would have obviated the risk of tripping over the chain, but neither feature compels a finding that the chain ought to have been raised rather than stepped over. As it happens, Mr Hughes was unfamiliar with the method by which the chain hung and so not aware of how simple it might be to lift it off its fixing point – if he had thought about it he probably would have appreciated that it was a simple matter. He certainly would have appreciated that it was a simple matter to just lift the chain above his head.

[25] But the issue really is – was he obligated to pause, consider and carefully weigh up the issue? I cannot see that the exercise of reasonable care requires that much. There first needed to be some trigger to make him realise that he ought to pause and weigh up things before simply stepping forth. The defendants had not thought to issue any instruction to workers concerning the chain as a particular hazard. Why should that reasonably be expected to occur to a worker in the course of his working day and when engrossed in his task?

[26] There was no direction that workers must at all times stay within the green painted areas which instruction would have had the effect of keeping workers away from the chain at its low point and so prevent them from crossing over it there. The painted areas were there for a different purpose, namely to keep men and machinery separate when machines were present. Hence it is not immediately apparent why a worker ought to have thought that it was unsafe to go outside the painted areas when no machinery was present and none were imminently likely to be present.

[27] The defendants were aware, by their employees, that the hooks were there – Mr Hughes was not. No feature of the evidence suggests that it ought to have occurred to Mr Hughes, as he went about his work, that this seemingly innocuous step was more fraught with risk than it appeared. In my judgment Mr Hughes was not negligent of his own safety in deciding to step over the chain.

[28] The final suggestion is that the plaintiff failed to execute the step in a safe manner. Here the line between inadvertence and misjudgement on the one hand and carelessness amounting to negligence on the other is a very fine one. Had Mr Hughes tripped on the chain itself he would have some difficulty in persuading me that he should not bear a significant proportion, if not all, of the blame for the accident. But it is common ground that it was not the chain but, to him, the unseen and unknown hooks that brought him down. The real problem was that the chain was so low as to appear to be an easy hurdle to clear. There was a hidden danger. Given his reasonable distraction with the task at hand and the apparent innocuousness of the low slung barrier, I cannot accept that Mr Hughes was negligent in failing to identify that danger and avoid it.

[29] The defendant submitted that the decision in Reck v Queensland Rail [2005] QCA 228 provided some guide to the approach I should take here. I did not find the analysis there of any great help. Generally, decisions on one fact situation rarely assist in determining another, particularly on questions of contributory negligence. That is so with the comparisons sought to be drawn here with the situation in Reck. There the plaintiff locomotive driver fell a distance of about two meters out of the door of his locomotive whilst trying to alight. He had performed that task hundreds, if not thousands of times before. The majority in the Court of Appeal (McPherson JA and Holmes J, as she then was) upheld the finding of contributory negligence of 25% referring to the ―dangers of falling such a distance and the severe consequences of doing so‖2 as being obvious to the plaintiff. Those considerations are not present here.

[30] Despite the causal significance of his decision to step over the chain, in my judgment it is not just or equitable to reduce the damages recoverable by the plaintiff.3 I reject the defendants’ submissions and find the plaintiff was not guilty of contributory negligence.

 

2 At [7]

3 Law Reform Act 1995 (Qld), s 10(1)(b)

 

 Age  General Damages  ISV  Uplift  Occupation  Past economic loss  Future economic loss
48(M) $55,000.00Non dominant shoulder  – horrendous tears –

Dr Cook has assessed the extent of the impairment using the AMA Guides (5th edition) as at about 17% to 18% of the shoulder and 10% to 11% of the whole person

n/a n/a Underground fitter on the mines  $34,447.00

 

 $343,000.00

 

$1,188 through to age 60 years with a 30% discount for contingencies and then for a further 5 years with a 90% discount.

Noting very few workers in the mining industry worked post 60 years of age

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