Allen v NSW Fire Brigade [2000] NSWSC 276

New South Wales Supreme Court

CITATION : Allen v NSW Fire Brigade [2000] NSWSC 276 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20163/95 HEARING DATE(S) : 01/06/98; 02/07/98; 14/08/98; 21/09/98; 29/09/98; 02/10/98; 29/01/99; 18/02/99 JUDGMENT DATE : 7 April 2000

PARTIES : Leslie John Allen (plaintiff) New South Wales Fire Brigade (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : A J Lidden (plaintiff) G R Waugh (respondent) SOLICITORS : Brydens Law Office (plaintiff) Hickson Lakeman & Holcombe (defendant) CATCHWORDS : NEGLIGENCE - Action for damages for personal injury - contributory negligence LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED : Bankstown Foundry v Braistina (1986) 160 CLR 301 DECISION : Judgment for Plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Friday 7 April 2000

20163/95 Leslie John Allen v New South Wales Fire Brigade Reasons for judgment

1 HIS HONOUR: In the early evening of 14 May 1994 the fire station at Campsie received a call to attend a block of units in Beamish Street, Campsie. As it happens, the problem was not a fire but, rather, a leaking water pipe in an unoccupied unit on the third floor, which was causing water to seep into the units below it. The plaintiff was a Senior Fireman employed by the defendant, the New South Wales Fire Brigade, at the Campsie station and was one of four firemen who attended the scene. 2 Each of the units had a concrete balcony with a metal handrail and it was through that balcony that access was to be gained to the third storey unit. For this purpose the plaintiff and Firefighter McMillan removed an aluminium extension ladder from the fire truck. The ladder was fully extended and placed against the balcony. Mr McMillan ascended it and went into the unit to find the leak. Some minutes later, the plaintiff himself ascended the ladder to the third floor balcony. As he began to climb over the handrail onto the balcony he fell, striking the handrail of the second floor balcony, glancing off the first floor balcony and landing on the concrete driveway. 3 It is the plaintiff's case that he fell because the upper section of the ladder retracted at a time when he was still reliant upon it for support. He was seriously injured as a result and he seeks damages in an action in negligence against his employer. It is necessary to examine the structure and functioning of the ladder, and the evidence of how it was erected and positioned on the evening in question and the circumstances in which the plaintiff climbed it.