New South Wales Court of Appeal CITATION : Russon v Ampol Ltd [1999] NSWCA 230 FILE NUMBER(S) : CA 40171/98 HEARING DATE(S) : 16 June 1999 JUDGMENT DATE : 9 July 1999 PARTIES : John Sydney Russon Ampol Ltd JUDGMENT OF : Giles JA at 1; Fitzgerald JA at 9; Brownie AJA at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5092/97 LOWER COURT JUDICIAL OFFICER : George ADCJ COUNSEL : Appellant - S G Campbell & G Pinkerton Respondent - A P Quinliven SOLICITORS : Appellant - I K Chipchase Respondent - Booth Mather Blackmore CATCHWORDS : NEGLIGENCE - fall from ladder - whether ladder slipped - whether treads dangerously slippery - decision on facts. DECISION : (By majority) Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40171/98 DC5092/97 GILES JA FITZGERALD JA BROWNIE AJA Friday 9 July 1999 John Sidney RUSSON v AMPOL LTD JUDGMENT 1 GILES JA: I have had the advantage of reading the judgments of Fitzgerald JA and Brownie AJA. The issues in this appeal concerning how the appellant came to be injured and the legal responsibility of the respondent are described in the reasons of Brownie AJA. He and Fitzgerald JA differ only as to whether the trial judge's finding that the accident was not caused by the ladder falling can stand. 2 There are, I think, two questions involved. 3 The first question is whether this Court should overturn the finding of the trial judge and find in lieu that the accident was caused by the ladder falling. On the one hand, if Mr Duncan had kicked the ladder down it could not have fallen. On the other hand, the appellant's evidence was that it fell, his almost contemporaneous accident report was that it "slipped downward approx 30 cm", and one view of his statement to Mr Duncan at the time that he had slipped off the ladder "because the problem we had with the ladder", was that his immediate explanation for the accident was that the ladder fell. Although I consider it a near thing, I share the view of Brownie AJA that this Court should not overturn the finding of the trial judge. 4 With respect to Fitzgerald JA, I would not describe the evidence of Mr Duncan's practice of kicking the ladder before putting his weight on it as rather tenuous. It is true that Mr Duncan could not recall doing so on the particular occasion, but that is not surprising if it was a matter of habit. His evidence that it was his invariable practice was strong, justifying the trial judge's statements that he was "quite adamant" and "quite insistent". And it should not be overlooked that the practice was current amongst the relevant employees, attested to by Mr Trew and by the appellant himself. 5 The finding made by the trial judge is not necessarily inconsistent with a contemporaneous belief by the appellant that the ladder fell, and does not necessarily involve fabrication on the part of the appellant, because it is possible that the appellant simply slipped but at the time erroneously attributed his slipping to the ladder falling. Weighing the relevant matters must have involved the impression which the appellant made when giving his evidence of the way in which the accident occurred. Consistently with the principles for which cases such as Devries v Australian National Railways Commission (1993) 177 CLR 472 are conventionally cited, I do not think that this Court should overturn the finding. 6 The second question is whether the trial judge's failure to refer to the accident report and the complaint heard by Mr Duncan vitiates the reasoning as expressed in the judgment. Fitzgerald JA takes this up when he says that the trial judge's rejection of the appellant's account without reference to the matters which supported what the appellant said was erroneous. 7 Again with recognition of his Honour's view, I do not agree. The trial judge does not refer to those matters. But it was not necessary that he refer in terms to everything for and against his finding. He expressly made his finding on the balance of probabilities, and so recognised that there were two available findings, and he can not have been unaware of the accident report. As Brownie AJA observes, the complaint heard by Mr Duncan did not attract much attention at the trial, but it was not clear whether the reference to the problem with the ladder was part of the complaint or an inference by Mr Duncan. The trial judge's reasoning was that the evidence concerning kicking the ladder down weighed more heavily than all else, including the appellant's evidence which he did not suggest represented other than the appellant's genuinely held impression of how the accident occurred. I do not think the trial judge's reasons were inadequate so as to require a new trial. 8 With the foregoing comments, I agree with Brownie AJA and with the orders his Honour proposes. 9 FITZGERALD JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Brownie AJA. I agree with his Honour except in one critical respect. 10 It was not in dispute that the appellant was injured when descending the ladder, and the central issue in the case was whether, as he claimed, the ladder malfunctioned and the material section fell, or whether his co-worker, Mr Duncan, had kicked the material section down before preceding the appellant down the ladder. 11 The trial judge rejected the appellant's claim that the material section of the ladder fell on the basis of rather tenuous evidence that it was Mr Duncan's invariable practice to kick the ladder before putting his weight on it. However, Mr Duncan could not recall doing so on the occasion when the appellant was injured. 12 On the other hand, the appellant gave evidence of his actual recollection of the material section of the ladder falling under his weight and his evidence was supported by both what Mr Duncan heard when the appellant injured himself and an almost contemporaneous written report of what had occurred by the appellant. 13 Obviously, had the trial judge considered those matters which supported what the appellant said, he might well have accepted the appellant's account. In my opinion, his Honour's rejection of that account without reference to those matters was erroneous. 14 I would allow the appeal with costs and remit the action for retrial. The respondent should have a certificate under the Suitors Fund Act, if qualified. 15 BROWNIE AJA: The appellant sued the respondent for damages for personal injuries sustained in an accident which occurred at Sydney Airport on 30 August 1987. The appellant and a Mr Duncan were engaged in refuelling an aircraft. The performance of that task involved driving a specially adapted truck, known as Unit 13, under the wing of the aircraft, and then raising an hydraulically operated platform, attached to the rear of the truck, to a height which enabled the two men to connect a fuel hose to the aircraft wing fuel tank. 16 Access from the raised platform to the ground was gained by the use of an aluminium ladder attached to the chassis of the truck and to the platform. The appellant was injured when descending this ladder. 17 The stiles of the ladder were contained, at both the upper and lower ends of the ladder, within metal guides or "channels", but the stiles were free to move vertically within these guides. As the platform was raised, it lifted the ladder from the top, so that, within limits, the whole ladder could be raised or lowered, as the platform was raised or lowered. The trial judge, George ADCJ, found that by reason of an earlier incident, the ladder malfunctioned intermittently, with the consequence that, on occasions, when an employee was on the ladder, the ladder would fall distance of perhaps 300 millimetres and the appellant said that this was what happened to him. The learned trial judge did not accept this case. On appeal, the appellant challenged this finding, starting with the proposition that the trial judge had found that the appellant was an honest witness, and therefore that his version of the accident should have been accepted, and that it should now be accepted. 18 I do not think that the premise contended for was established. The trial judge made four findings, relevant to this question. First, he accepted that the appellant had been injured in a fall from the ladder, but he did not accept that the fall was occasioned by the ladder jamming, as the appellant described. Secondly, he said that he thought that the appellant's recollection of the events of the day of the accident was likely to have been clearer than the recollection of Mr Duncan; but the relevance of that seems to be limited to the proposition that the appellant said that Mr Duncan had preceded him down the ladder, whereas Mr Duncan did not recall that sequence of events; and in any event, as his Honour said, the recollections of the two men were not materially different. Thirdly, his Honour found that the accident did not occur in the manner that the appellant described, but rather that the appellant had slipped from the ladder. Finally, his Honour referred to the evidence of the appellant concerning a prior back injury, in 1973. He accepted that the appellant gave "quite honest evidence in this regard". This observation seems to me to have been a carefully guarded one, not capable of being regarded as being applicable to the whole of the appellant's evidence. 19 A good deal of the time taken up at the trial related to questions relating to damages. Over a long period of time the appellant had been injured on a number of occasions, so that there was a major issue litigated as to whether the appellant had injured his back in the accident sued upon, and if so, what consequences flowed from that incident. This was the context in which his Honour made the final finding just mentioned, and it was the context in which the appellant made a different challenge. Having rejected the claim that the ladder fell as the appellant had asserted, his Honour said that it remained to determine whether what happened was that the appellant merely had an accident such as may lead to workers' compensation benefits, or whether there had been a breach of a duty of care owed to the appellant. As I read his Honour's reasons for judgment, he was not saying anything remarkable. A good deal had been said about the appellant's claims for workers' compensation benefits, and it seems impossible to read into the passage in question any suggestion that his Honour was misdirecting himself as to the legal issues. 20 It was generally known amongst the community of aircraft refuellers employed by the respondent that the ladder on Unit 13 was defective, and a practice had grown up of these men kicking or stamping on the top rung of the ladder before putting any weight on the ladder. His Honour accepted that, on the occasion of the appellant's injury, Mr Duncan descended the ladder before the appellant did, and he accepted Mr Duncan's evidence of his invariable practice of kicking the ladder before putting his weight on it. I do not see any proper basis upon which this Court can interfere with this finding, predicated as it is upon a preference for the evidence of Mr Duncan to the evidence of the appellant: Devries v Australian National Railways Commission (1993) 177 CLR 472, 479. The one circumstance that serves to throw any doubt upon this conclusion is a passage in the evidence of Mr Duncan. In his evidence in chief, he described how, having descended the ladder, he had done around to the far side of the truck. He saw "movement" which he could not describe, but which was evidently the appellant falling, and heard a "bit of cursing". He walked back around the truck and saw the appellant near the base of the ladder. Asked if the appellant made any complaint he said: "Yes, he'd slipped off the ladder or something like that, because the problem we had with the ladder" (sic). 21 The last phrase seems to have escaped the attention of all concerned at the time, and it was not the subject of any further questioning, although there was a good deal of evidence then given about problems with the ladder more generally. It is not clear whether the last phrase quoted represented something the appellant said immediately after the accident, or something Mr Duncan inferred. In any event, this circumstance does not satisfy the condition discussed in Devries. 22 The appellant invited us to take judicial notice of the fact that appropriate steps to guard against the risk of injury consequent upon the ladder jamming and then falling were available, but it is plain that we cannot do this. What was involved was a piece of specialised equipment of quite an unusual nature. Moreover, the finding by the learned trial judge that the accident was not caused by the ladder falling makes such a finding irrelevant. 23 The appellant advanced an alternative case, to the effect that his injury was caused by the slipperiness of the rungs of the ladder. The trial judge found that during aircraft refuelling operations it was inevitable that some fuel would be spilt; that the accident occurred on a day when the weather was "marginally inclement"; and that a mixture of fuel and rainwater would provide a lubricant which in normal circumstances may be slippery. He found that the risk that an employee such as the appellant might slip was "certainly foreseeable", and "definitely not far-fetched"; and he added that it was almost the case that "a ladder is something that is in itself inherently dangerous". He referred to Wyong Shire Council v Shirt (1980) 146 CLR 40; and it is clear that he applied the test discussed by Mason J (as he then was) at 47-48: "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." 24 The rungs of the ladder were made of extruded aluminium. They were generally round in shape, and had grooves running horizontally, from one stile to the other. His Honour described them as having a theoretically non-slip surface. So far as the evidence goes, up until the time of the accident no-one had noticed any deficiency in the rungs or the grooves, or had complained to the respondent about them. 25 It is true that in April 1993, some 5½ years after the appellant's accident, the Transport Workers' Union of Australia made a written complaint to the successor of the respondent, complaining about a number of units, including Unit 13 (which by then was known as Unit 11); and one of the complaints about Unit 13 was: "Platform ladder requires modification or flat type steps". Some time after that complaint was made, the rungs were modified, in that they were "capped" so as to provide a flat upper surface for each rung, rather than a round surface, and so that the flat upper surface was sprayed with strips of some non-slip material, perhaps carborundum. It may be legitimate to infer from the language of the Union's complaint that by 1993 both the Union and the respondent's successor were reasonably familiar with the type of modification then adopted. 26 However, the evidence does not establish any other detail concerning the expense, difficulty and inconvenience of taking this particular or any other alleviating action, nor whether it was possible in or before 1987. Unit 13 was either unique or almost unique and the evidence does not establish who manufactured it, or who provided it to the respondent. The evidence did include an invoice dated January 1988, showing repairs to the handrails, ladder guide, steps and pneumatics, at a cost of some $1400, but these repairs do not seem to be relevant to the question I am now considering. 27 His Honour found against the appellant on this part of his case, on the basis that there was no evidence of any prior accidents occurring by reason of any employee of the respondent slipping on a rung of the ladder, or that the respondent was or ought to have been aware at the time that there was a danger arising from the potential slipperiness of the rungs. That is, the reasonable man's response did not require any remedial action. It is difficult to fault this part of his Honour's reasoning. 28 There is, however, a further difficulty in this part of the appellant's case: He himself did not say that his foot slipped because the rung was slippery. Rather, he said, both in evidence and in prior statements, that his foot slipped because the ladder slipped downwards, so that his foot was jolted off the rung; and he buttressed that claim by saying that his shoes (or gumboots) were wet and slippery, and that his gloves and the handrails that he was gripping with his gloved hands were wet and slippery; and there was no other evidence to the effect that the accident was the result of the slipperiness of the rungs. 29 I propose that the appeal be dismissed with costs. __________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.