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. The Ladder 4 The ladder was an extension ladder with a fixed lower section (the "standing length") and a moveable upper section (the "sliding length") which was manoeuvred by a hauling rope. However, unlike the extension ladder familiar in the building trade, the sliding length of this ladder was to the rear of the standing length. This was to enable the ladder to be reinforced by metal trussing on either side of its entire length. The Fire Brigade required ladders of this construction because they needed to be able to take unusually heavy loads: for example, a fireman carrying a person who had been affected by smoke from an upper storey of a building. 5 Attached to the sliding length was a mechanism known as a pawl (sometimes referred to as "the pawls"), consisting of two spring loaded metal hooks which secured the sliding length to the standing length when the ladder was at the desired height. The sliding length would be raised by pulling on the hauling rope and, when it was high enough, the pawl would lock onto whichever rung of the standing length it had reached. As an additional means of securing the ladder in position, the hauling rope would then be tied onto the bottom rung of the ladder in a clove hitch. 6 The pawl could be disengaged by raising the sliding length a little so as to trip it out of its locked position. The sliding length could then be repositioned by the use of the hauling rope to re-engage the pawl on a different rung of the standing length. However, unless it were controlled in this way by the use of the hauling rope, the sliding length would usually fall to the ground if the pawl became disengaged. In this regard the ladder was different from the more familiar extension ladder with the sliding length to the front of the standing length. With that type of ladder, if the locking mechanism became disengaged and the sliding length began to retract, it would simply engage the next rung on the standing length. 7 There were standard procedures in the Fire Brigade relating to the positioning and use of ladders, of which the plaintiff was aware. I have already referred to the requirement that the hauling rope be tied to the bottom rung of the ladder once it had been raised. When a fireman climbed the ladder another officer was to stand at the bottom, securing its base. This was known as "footing" the ladder. Firemen carried a length of rope known as a "pocket line". The officer who climbed the ladder was to secure the top of the ladder, using that rope to tie it to some convenient part of the structure. The Accident 8 When the plaintiff and his colleagues arrived at the scene, Firefighter Bebington remained with the fire engine and the others went to the units. Senior Firefighter Boorman joined police, who had also been called, and went into the building with them. While the plaintiff stood behind the ladder holding it, Firefighter McMillan used the hauling rope to raise the sliding length until the ladder was fully extended. According to the plaintiff, the hauling rope was tied off at the bottom of the ladder. Mr McMillan, who also gave evidence, said that tying the rope off at the bottom was the normal practice, but was not asked whether it was done on this occasion. While the plaintiff footed the ladder, Mr McMillan then climbed it, carrying a torch with him. He felt uneasy as he climbed the ladder because it was positioned at such an angle to the building that it was, as he put it, "almost vertical". It appears that he did not tie the ladder off at the top. 9 Mr McMillan entered the unit from the balcony, located the leak, but could not find the stopcock to turn the water off. He tried to leave the flat by the front door but found the security door locked, and he decided to climb back down the ladder. He returned to the balcony and asked the plaintiff to assist him to reposition the ladder so that it would be at a greater angle to the building. This they did. Mr McMillan also tried to extend the ladder only to find that it was already fully extended. It will be necessary to consider shortly what might have happened to the ladder in that process. 10 At this point of the narrative there is a conflict in the evidence. According to Mr McMillan, he then went back into the unit as Mr Boorman and the police had been able to gain entry through the front door. Shortly thereafter he heard a woman scream and discovered that the plaintiff had fallen to the ground. According to the plaintiff, Mr McMillan told him that he could not find the stopcock and asked him to obtain a portable light from the fire engine to assist in his search. Why Mr McMillan would have done so when he had a torch is unclear. However that may be, it is the plaintiff's account that he went to the fire engine, obtained the light, and ascended the ladder for the purpose of helping Mr McMillan to find the stopcock. 11 He said that when he reached the top of the ladder he put the light onto the balcony. He had one foot on the top rung of the ladder and was in the process of swinging his other leg over the handrail when, as he put it, "the pawls on the ladder disengaged and the ladder collapsed underneath" him. Neither Mr Boorman nor Mr Bebbington gave evidence. However, there was admitted a report prepared by Mr Boorman on 19 May 1994, only a matter of days after the accident. In that report he wrote that, whilst he was inside the unit, he heard what he "thought was the ladder being retracted then falling". In a report of 20 May, Mr Bebbington said that he saw the plaintiff "climbing the ladder and as he reached the top, the ladder suddenly retracted, causing him to fall … ". 12 The plaintiff acknowledged that, after he had been to the fire engine to obtain the light, he did not inspect or test the ladder before he climbed it. He did not know whether Mr McMillan had tied it off at the top. As he climbed it he noticed nothing unusual about the pawl, although he said that it was dark. He agreed that he should not have climbed the ladder without another officer footing it, and that to do so while carrying a light was "extremely hazardous". He agreed also that, as the situation was not one calling for urgent action, he could have waited for Mr Boorman to return and foot the ladder for him. Liability 13 After an initial hearing of this matter, my having reserved judgment, I acceded to an application by the plaintiff to re-open the case to lead further evidence on the question of liability, in the light of certain additional material which had come into the hands of his legal advisers. Further evidence, both documentary and oral, was led although, at the end of the day, the plaintiff's case on liability remained much the same. 14 In final submissions after the renewed hearing, it was common ground that the plaintiff had fallen because the pawl had become disengaged, causing the ladder to retract. I received in evidence from the defendant's records internal memoranda of March and May 1992 and a number of internal e-mails transmitted in March 1997, in which dissatisfaction is expressed with the continued use of that type of ladder. The memorandum of March 1992 refers to "Extension ladders, the wrong way up" and the memorandum of May 1992 questions the safety of their use. The e-mails of 1997, which refer to the plaintiff's accident, describe the design of the ladders as "bastardised" and discuss the desirability of replacing them. These comments appear to be based upon the fact, to which I have referred, that the sliding length of the ladder was to the rear of the standing length so that, if the pawl were disengaged, the sliding length would retract completely rather than simply to the next rung. 15 I should record that this was also the focus of an engineer's report prepared for the plaintiff. However, that report did not analyse the circumstances of the accident and I have not found it helpful in resolving the issue of liability. Counsel for the plaintiff did not rely upon it in his final address. 16 An important question, then, is whether the pawl might disengage unexpectedly and, if so, whether other measures might be effective to prevent the ladder retracting. Mr Douglas Hall, a senior officer of the defendant who was manager of engineering services at the time of the plaintiff's accident, gave evidence. He said that he had not heard of such an accident in his fifteen years experience of this kind of ladder. 17 I am satisfied that the ladder which the plaintiff was using was not itself faulty. It was tested by the manufacturers, by Mr Hall and by Dr John Olsen, an engineer who prepared a report for the defendant. It is clear that the ladder could not retract if the pawl were engaged. It must have become disengaged when Mr McMillan and the plaintiff re-positioned the ladder, most probably when Mr McMillan tried to extend it. In his report, Dr Olsen was of no doubt that Mr McMillan "did lift the sliding section some 6" or so, thereby disengaging the pawl". 18 The accident was also investigated by another senior officer of the defendant, Mr David McKenzie. He has since retired but was Zone Commander of the plaintiff's region at the relevant time. He produced a report in June 1994 and gave evidence at the resumed hearing. It was his conclusion also that the pawl had become disengaged at the time the ladder was re- positioned. The same view was expressed by Mr Conrad Geisler, also retired, who was a District Officer at the time of the accident. He also produced a report of his investigation shortly after the accident and gave evidence at the resumed hearing. 19 If that were so, it might be asked, why did the ladder not retract at that point? Mr Hall was adamant that it would have done. However, Mr McKenzie proffered an explanation which I find acceptable. He witnessed a test when the ladder was extended to about 2/3 of its length and the pawl was engaged. It was then extended a little further to allow the pawl to disengage. His description in evidence continued: When the ladder was allowed to fold slightly it was found that the spring loaded device, which holds the locking piece of the ladder, was sufficient to just hold the ladder in place without the whole ladder lock being in place; in other words the hauling line could be let go and the ladder would not fold, it would hold in position. 20 In his report Mr McKenzie also described tests which revealed that, in those circumstances, the weight of a person on the ladder would not necessarily cause it to retract unless it were shaken or moved. This, he said, was the result of the weight of the ladder combined with the weight of the person causing "a braking of the ladder strings". (The strings are the sides of the ladder to which the rungs are attached). Accordingly, it was his view that the ladder remained in place as the plaintiff climbed it, but the transfer of his weight to the side as he began to climb over the balcony railing caused "enough vibration of the strings" to allow the ladder to retract. 21 This is the only explanation of what occurred which is consistent with the evidence. It also conforms with the views expressed by Mr Olsen in his report, which assume that the plaintiff was able to climb the ladder notwithstanding the fact that the pawl was disengaged. Mr Geisler thought that the sliding length might have been held in place by the position of rivet heads at the top of the ladder against the edge of the balcony railing, but I think that Mr McKenzie's proposition is more probable. 22 The question remains whether the plaintiff and Mr McMillan might have taken precautions to prevent the ladder retracting. Clearly, it would not have done so if Mr McMillan had tied it off at the top after it was re-positioned. Although the matter was not expressly raised in his evidence, it is obvious that he did not. From the evidence, it is equally clear that the ladder would not have retracted if the hauling line had been tied off at the bottom. Despite the plaintiff's evidence to the contrary, I am satisfied that it was not. It seems that both the plaintiff and Mr McMillan thought that the purpose of tying off that line was simply to keep it out of the way, but the preponderance of the evidence is that it served to maintain the stability of the ladder. 23 It is not immediately apparent that having another officer foot the ladder would have prevented it from retracting. However, Mr McKenzie believed that it might have inhibited the sideways movement of the ladder to which he referred in his report, enabling the plaintiff to climb onto the balcony safely. This, he acknowledged, was "all theory". 24 I am satisfied that the defendant is liable for the plaintiff's injuries. It was Mr McMillan's attempt to extend the ladder which caused the pawl to disengage. The design of the ladder was such that precautions were required to ensure that it did not unexpectedly retract. One of those was tying it off at the top, which Mr McMillan failed to do. 25 However, there is clearly a measure of contributory negligence on the plaintiff's part. I accept that it was dark (or becoming so) and I would not expect him, before he climbed the ladder, to have noticed that it was not tied off at the top or that the pawl was disengaged. At the most, this might amount to "mere inadvertence, inattention or misjudgement" and would not be such as to render the plaintiff "responsible in part for the damage": Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310. It is true that the task was not urgent and he could have waited until another officer was available to foot the ladder. However, notwithstanding the view of Mr McKenzie to which I have referred, I very much doubt that this would have prevented the accident. 26 On the other hand, it is likely that the accident would not have occurred if the hauling line had been tied off at the bottom of the ladder. The plaintiff failed to ensure that it was. This is a significant matter, for which he should bear some responsibility. On that account, I would reduce the damages which he might otherwise recover by 25 per cent. 27 At par 10 of these reasons I referred to a conflict between the evidence of the plaintiff and of Mr McMillan about the circumstances in which the plaintiff came to climb the ladder. I do not find it necessary to resolve that conflict, although I find the plaintiff's account somewhat odd. I mention the matter merely to record that I do not consider that it reflects adversely upon his credibility. He appeared to me to be an honest witness, and it is understandable that there might be some distortion of his recollection of events leading up to the accident. Damages 28 The plaintiff was forty-six years old at the time of the accident and is now fifty-two. He is married with three children As a result of the accident he sustained fractures to three ribs on the right side, associated with a pneumothorax, and fractures to his pelvis. He also suffered soft tissue injuries, to which I shall turn in a moment. He was in hospital for six days and for some of that time he required a chest tube. He was placed under the care of Dr Damian Ryan, orthopaedic surgeon, whom he continued to see after his discharge. He was on crutches for some time (although the evidence does not disclose precisely how long). 29 I am satisfied that the accident also caused ligamentous injury to his right elbow and wrist. He had a pre-existing injury to his right knee and degenerative changes to his spine at the lumbar and sacral levels, all of which were exacerbated by the accident. In December 1994 he was readmitted to hospital for an arthroscopic meniscectomy of his right knee. He continued to experience pain as a result of deformity of his pelvis, and in October 1995 he underwent corrective osteotomy of his right iliac crest by Dr Paul Stalley, to whom he had been referred by Dr Ryan. 30 I accept the plaintiff's evidence that he suffered severe pain for the three or four months following the accident, after which it gradually lessened. It seems that the operative procedures on his knee and pelvis were successful. Nevertheless, I also accept his evidence that at the time of the hearing he still experienced occasional pain or discomfort in the knee and his right hip. According to Dr Philip Truskett, an orthopaedic surgeon retained by the defendant, there is some risk of his developing premature degenerative changes in his knee. He also described some pain in his chest from time to time, with shortness of breath. On the other hand, his right arm settled down after about eighteen months. 31 By far the most significant of his continuing disabilities, however, is his lower back pain. His evidence about this is borne out by the medical reports. He had found some relief, initially through physiotherapy and later by the use of a TENS machine. However, at the time of hearing he was continuing to experience pain, especially in the area of his coccyx. The effect of the expert evidence is encapsulated in the opinion of Dr Truskett, in his report of 20 May 1997, that "it is unlikely that the symptoms will significantly improve". 32 He had been a fit man, who enjoyed golf, jogging and bike riding. At the time of the hearing, he was maintaining a level of fitness through a rehabilitation program at a gym provided by the defendant. He can still walk a fairly long distance. However, he has been unable to pursue his pre-accident sporting activities and he will never be able to do so. 33 Not surprisingly, the accident has also had adverse effects upon the plaintiff emotionally. He became depressed, lacking energy and motivation, and experienced sleep disturbance. He was irritable, and for a time his sexual relations with his wife were affected. He began to drink more than he used to and to gamble. He also experienced recurrent and vivid visual memories of the accident. 34 The situation improved after he returned to work in April 1995, and underwent psychological counselling and treatment in that same year. Nevertheless, he continues to suffer from what Dr Derrick Lovell, a psychiatrist retained by the defendant, described as "an Adjustment Disorder with mixed anxiety and depressed mood". In a report of 24 June 1997, the doctor described this condition as "chronic". A significant factor in his emotional state is that, since he returned to work, he has been confined to clerical duties and has been unable to engage in active fire fighting. It is to his employment situation I must now turn. 35 The plaintiff qualified as a carpenter in the late 60s. Thereafter he was self-employed as a builder, engaged in maintenance work and home renovation. He joined the Fire Brigade in February 1980, progressing through the ranks to the position of Senior Fireman Qualified. That means that he had done the necessary examinations to progress to the rank of Station Officer. His shift work provided him with time off sufficient to enable him to maintain some sporadic building work, although on smaller jobs. 36 Prior to the accident, he had intended to pursue promotional opportunities within the Fire Brigade. After the position of Station Officer comes Inspector, Superintendent, Chief Superintendent, Assistant Commissioner and Commissioner. He had aspired to the rank of Superintendent, although relatively few progress that far. His claim for future wage loss is based upon the assumption that he would have retired with the rank of Inspector. That he had the competence and diligence necessary to attain that rank was attested to by Mr Robert Gouttman and Mr Christoper Lewis, who were called in his case and were themselves Inspectors with the Brigade. 37 On 26 April 1995 the plaintiff returned to work, retaining the rank of Senior Fireman but being confined to clerical duties. It is clear from the medical evidence that he is physically capable only of duties of that kind and he will never return to active fire fighting. Prior to returning to work, he was able to complete some building work in progress at the time of the accident with the assistance of some friends in the Brigade who had the relevant skills. However, he ceased work of that kind after he returned to his employment with the defendant because the hours involved did not allow the flexibility which he had been afforded by shift work as an active fireman. 38 His evidence was that the work he was doing upon his return was at the level of a Station Officer but that, apart from the occasional payment of a higher duty allowance, he continued to be paid the salary of a Senior Fireman Qualified. His promotion to Station Officer was dependent upon his being declared medically fit for that office, as it involves a significant amount of active fire fighting. At the time of the hearing he was still unfit and, I have no doubt , he never will be. It is fortunate that the defendant has been willing and able to maintain his employment within the limits of his present physical capacity. Assessment 39 Damages for non-economic loss must be determined as a percentage of the amount fixed under s151G of the Workers Compensation Act 1987 for a most extreme case. Having regard to the severity of the plaintiff's injuries, their physical and emotional effects, his continuing disabilities and their effect upon his lifestyle, I consider that he is entitled to 55 per cent of the applicable maximum. 40 As his injuries are clearly serious within the meaning of s151H(2A) of the Act, he is also entitled to damages for economic loss. He has, of course, been receiving workers compensations payments. The evidence is that, but for his injuries, he would have been promoted to the position of Station Officer on 3 November 1995, following the retirement of another officer occupying that position. Past loss of wages should be assessed on that basis. 41 Counsel for the defendant argued that the plaintiff was unlikely to be promoted to Inspector, in the light of the evidence of Mr Lewis that, of his class of about twelve, only he had attained that rank. Nevertheless, as I have said, the evidence as a whole satisfies me that the plaintiff had the capacity to do so. His claim for future wage loss is on the basis that he might have expected promotion to that position five years after 3 November 1995, the date on which he would have been appointed a Station Officer. I consider that to be a reasonable approach and his claim should be assessed accordingly. In addition to the discount required by s151J of the Act, that claim should be reduced by a further 15per cent for contingencies. These findings, of course, will determine the Fox v Wood claim. 42 As to the plaintiff's part time building work, there is no claim for past loss of income but there is a claim for the future, based upon the assertion that he would have continued that work until his appointment as Inspector. I would not allow this claim. There is a paucity of evidence about the extent of his part time building work and the income which he derived from it. More importantly, the evidence does not disclose whether that work could have been accommodated with his position as Station Officer. 43 I understand that out-of-pocket expenses are agreed upon, at least as to the past. If there is no agreement about future out-of-pockets, I will need to hear counsel on that matter. In the light of my finding of contributory negligence, counsel will also need an opportunity to consider s151N of the Act and the matter will need to be re-listed for that purpose. Counsel then will be able to assist me if I have failed to deal with any matter in dispute or to meet any requirement, statutory or otherwise, in the assessment of damages. In addition, some figures may need to be adjusted due to the lapse of time since the question of damages was argued. I would then request the parties to bring in short minutes to give effect to my findings. I shall also hear the parties on costs. ********** Last Modified: 09/25/2000 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.