New South Wales Court of Appeal CITATION : Keith WATERS v TROJAN TYRES (NSW) PTY LIMITED [2003] NSWCA 246 HEARING DATE(S) : 04/09/2003 JUDGMENT DATE : 10 September 2003 JUDGMENT OF : Tobias JA at 1; Foster AJA at 2-33; Gzell J at 34 DECISION : 1. The appeal upheld.; 2. The verdict in the Court below in favour of the respondent be set aside and there be substituted a verdict in favour of the appellant in the amount of $291,823.00, with credit to be given to the respondent for the amount of $109,799.00 previously paid by way of Workers' Compensation payments.; 2. The respondent pay the appellant's costs of this appeal and also the appellant's costs of the hearing in the Court below. CATCHWORDS : Appeal against claim to recover damages for injuries suffered at the workplace. LEGISLATION CITED : Occupational Health & Safety (Floors, Passageway & Stairs) Regulation 1990 Workers' Compensation Act 1987 Australian Oil Refinery Pty Ltd v Bourne (1980) 28 ALR 529 at 532-533 CASES CITED : Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308.5 Connors v Simplot Pty Limited [2001] NSWCA 205 PARTIES : Keith WATERS - Appellant TROJAN TYRES (NSW) PTY LIMITED - Respondent FILE NUMBER(S) : CA 41190/02 COUNSEL : Mr Andrew L McSpedden - Appellant Mr Maurice Neil QC/Mr Malcolm Batten - Respondent SOLICITORS : Turner Freeman - Appellant Goldrick Farrel Mullan - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 403/01 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41190/02 TOBIAS JA FOSTER AJA GZELL J WEDNESDAY, 10 SEPTEMBER 2003 KEITH WATERS v TROJAN TYRES (NSW) PTY LTD Judgment 1 TOBIAS JA: I agree with Foster AJA. 2 FOSTER AJA: This is an appeal from the decision of a judge of the District Court, given at Wollongong on 26 November 2002. By his decision, his Honour rejected a claim brought by the present appellant, Keith Waters ("Mr Waters") against his employer, Trojan Tyres (NSW) Pty Ltd. ("Trojan"), the present respondent. Mr Waters had sued Trojan, as his employer, to recover damages for injuries suffered by him, whilst at work on 10 November 1999. He was then working at Trojan's business premises at Moorebank, as a tyre retreader. It is clear that Trojan's business involved it in storing, in its premises, a large number of motor vehicle tyres, upon which work was to be performed. The premises consisted of a factory building, at the rear of which there was a large open area. The driveway into the premises led into this area. This back area was paved with concrete. There was set into this concrete a drain covered by a grate, photographs of which are in evidence. This drain was situated at a rear corner of the factory premises where they met the open area. This also appears from the photographs. It is apparent that the drain was intended to remove water accumulating on the concrete surface, in its vicinity. 3 The uncontested evidence establishes that, from time to time, it was necessary to store numbers of motor vehicle tyres in this outside area, close to the edge of the main building and also to the doorway from the building to the back area. It is also clear that this could, at times, lead to significant congestion in the back area in the vicinity of the doorway and the drain. 4 The uncontested evidence further indicates that industrial refuse, in the form of rubber shavings or "shards" would collect in significantly large quantities in the same vicinity. Such accumulations are clearly visible in the photographs. Mr Water's evidence was that this material, although cleared up occasionally, was mainly present on the driveway. This was not contested by Trojan, which called no evidence at the trial. 5 It was the appellant's case, at trial, that a cover had been placed over the grate, described as a tin sheet, which was not fastened to the grate but which sat on top of it. The apparent purpose of this cover was to prevent the ingress of unwanted materials into the drain, such as the rubber shards accumulated in the area. 6 The cover, itself, was not in evidence in the case. The appellant described it in evidence and also described it to an expert witness, Mr Donohue, who relied upon the plaintiff's description in forming his opinions. It was not available for inspection by Mr Donohue, when he visited the premises; nor did the respondent provide any evidence in relation to it or produce it at trial. 7 His Honour noted in his reasons, and appeared to have accepted as accurate, the appellant's recollection that "the piece of metal was smooth and that it was not fixed in any way to the grate or to the ground" and that there was "a considerable quantity of rubber shavings" in the area, which could be observed from the photographs in evidence "as a form of dust or dirt being small particles". 8 It appears that the cover was sufficiently substantial to withstand the weight of vehicles passing over it, but the grate beneath it would have underpinned it, being a strong metal object obviously designed to have significant weight bearing qualities. The appellant referred to the cover as making a "rippling noise" when he rolled tyres across it, which strongly suggests that it was of relatively light material which could answer the description of tin and which would not constitute a very secure walking surface if anchored only by its own weight. 9 There was also uncontested evidence from the appellant that the cover had been in position for over 20 months. There was also a source of water in the vicinity, as appears from the photographs, namely a coiled fire hose on the side of the building. He also testified that when there was no room for tyres in the building, "then the room up the driveway would be utilised", which was "where this drain was." 10 Mr Waters described his accident in the following evidence:- "Q. At the time of the accident what were you doing? A. I was, because that driveway was chock a block with tyres and during the course of the day or early hours I'd taken enough of them away to enable me to wheel some tyres through, put a passage through there and as I wheeled the tyres over the grid there it had a sheet of tin on it at the time, once I got to that I just slipped. Q. When you say you were wheeling tyres how many tyres were you wheeling at the time? A. Two." 11 The appellant also said in evidence that he was wheeling the tyres in front of him, one on each side with his hands on top of them, just pushing them forward. The tyres went over the tin making a rippling noise. When his left foot came onto the tin, it slipped forward and went out from under neath him. He fell backwards. He noticed that the area of the cover was wet and that there was always rubber dust around in the area, which could be seen in all the photographs. He told his employer almost immediately that he had slipped on the tin and was in severe pain. The employer was near the scene of the accident at this time. He gave no evidence in the proceedings. 12 The appellant, also, gave the following evidence, in cross-examination:- "Q. No one to your knowledge has slipped in that vicinity before, that you know about? A. Not that I was aware of. Q. The tyres were, how far away from the drain were the tyres? The tyres that were being stored in that area? A. Virtually the drain was, the width of the drain was basically the part through, that's how wide it was, and enough for say two tyres. Q. To go through? A. That's right. Q. And you don't know really why you slipped, is that right, or? A. It's like, when you do a lot of things. Q. I am not being critically, I'm just asking you, is it, you don't really know why it is that you slipped? A. Well, I know it was wet, because the tyres themselves, they have a lot of grit on them as well, as they're, you wheel them along, a lot of the dust falls off. So, and at times that fire hose that's on the side of the building, that'll, whoever's been using it beforehand, mightn't shut it off properly, whatever, because it's on a slope and it heads towards that drain, which is natural and that'll make it slippery. Q. So you had seen the metal sheet, in a wet state on numerous occasions? A. That's correct. Q. Before November '99, is that right? A. That's correct. Q. And you knew, when you're in that vicinity, that it might well be wet, was that right? A. That's right. Q. Could it be that you're just weren't paying sufficient attention to what you were doing at the time and that's the reason why you slipped? A. You're concentrating on wheeling two truck tyres through, so that you lose sight of the tin for a start and so, I mean, if it's out of sight. Q. But you knew it was there? A. Yeah, I knew it was there. Q. And you'd done that many many times before is that right? A. That's right. Q. I need to suggest to you that perhaps a little bit more care on your part, would have meant that you wouldn't have slipped over, what do you say about that? A. Well, possibly, if I was just walking through without wheeling the tyres, well then I would have been able to apply a bit more care." 13 His Honour dealt with Mr Water's claim that Trojan was in breach of its duty of care to him at common law and also for breach of statutory duty, in the following passages in his judgment:- "There is no evidence of the weather at the time this event took place but Mr Waters says that the ground was wet. As he was pushing two truck tyres from the driveway to the rear of the premises his route led him across the grate and therefore across the sheet of metal that was attached to it. His evidence is that his left foot slipped forward and that he fell backwards in an arching movement landing on his left hand. This caused him immediate severe pain to his lower back. Mr Waters alleges that the state of the drain and its covering at the time constituted either a failure on the part of the defendant to provide a safe system of work or a breach of the duty established by reg 6 of the Occupational Health and Safety (Floors, Passageway and Stairs) Regulation 1990. Regulation 6 reads as follows:- " Safe Working in Relation to Floors For the purposes of Part 3 of the Act (the provisions of which are adapted accordingly) floors at a place of work are unsafe and a risk to health if the following requirements are not complied with, (b) all floors (or their coverings) must have an even and unbroken slip resistant surface which is free from holes, indentations, projections or other obstructions likely to cause a person to trip or stumble." In my view the construction of that regulation confines the term "floor" to areas that are inside a building. It would not be reasonable and practical to apply the requirements of that regulation to surfaces, for example, in a driveway or yard area surrounding premises and for that reason the plaintiff's claim for breach of statutory duty fails." 14 His Honour later dealt with the appellant's claim for breach of the common law duty in the following passage:- "However, there is a crucial issue of whether the injury on 10 November can be said to be a result of the defendant's negligence. I have already held it is not a result of a breach of statutory duty. The plaintiff relies primarily on a report by Mr Patrick Donohue, a forensic engineer and ergonomics consultant. Mr Donohue's report makes the judgments of Lord Eldon look like plain English. It is verbose almost to the point of incomprehensibility but, so far as I can understand it, Mr Donohue take the view that the reason why Mr Waters slipped in the way that he did, constituted an unacceptable risk. He says it was beyond the plaintiff's control. However, I am not satisfied that the situation in the defendant's premises was such that it was reasonably foreseeable that a person such as Mr Waters would slip on it, nor could I be satisfied on the balance of probabilities that it would have been reasonable for the defendant to have done anything other than what it did. The presence of the rubber shavings that I have described may well have constituted a considerable environmental hazard or simply a physical obstacle to the plumbing if they had been allowed to go into the drain. It was not in my view reasonably foreseeable that a person like Mr Waters would slip on the metal in the way that he did, and there is no evidence that this had happened previously." 15 Accordingly, his Honour held that no breach had been established of the employer's duty to provide a safe system of work, with the result that he entered a verdict for Trojan. 16 By his appeal to this Court, Mr Waters seeks that his Honour's findings both as to the breach of Trojan's duty of care to him and also in respect of the relevant regulation, should be set aside and that, in lieu thereof, findings in his favour on those issues should be entered. The Appeal 17 In the appeal the appellant contends that his Honour erred in failing to hold that the metallic cover over the grate of the drain created a foreseeable risk of injury and also in failing to find that the respondent should have taken reasonable steps available to it of obviating or minimising that risk. 18 It is also submitted that the trial judge erred in dismissing the statutory count on the basis that the driveway in which the drain and grate were situated was not, relevantly, a "floor". 19 It is further submitted that his Honour was in error in failing to provide sufficient reasons for his conclusion against the appellant on the issues of "foreseeability" and "reasonableness." 20 In relation to this last ground, I have come to the conclusion that it is better to approach this appeal on the basis that his Honour did not set out in his reasons the whole of the evidence given by the appellant in relation to the condition of the rear area and the circumstances of the appellant's slipping on the metal cover. His Honour gives no indication of not having accepted the appellant as a credible witness. Accordingly, in my view, it is appropriate to accept that his Honour had additional facts before him which were entirely credible and which, although they did not find a place in his reasons, were, nevertheless considered by him in reaching his decision. 21 In particular he had the appellant's evidence, set out above, as to the congestion in the area of the grate and the necessity to wheel the tyres through a narrow passage of similar width to the grate. Also, the wet condition of the cover and the presence in the area of the rubber particles. 22 I consider, first, the issue of foreseeability. This must be considered, of course, in the context of the respondent's duty of care to the appellant as its employee, to provide him with a reasonably safe system of work. 23 It is plain that the metal cover over the grate had been in position and obvious to the employer for a considerable period of time before the accident. It had a smooth surface. It was in the driveway where workers might walk. It was likely to become wet and have its surface affected by the presence of rubber material. Also, at times, when the rear area was congested by the presence of stored tyres, improvised pathways through those tyres could require workers to traverse the metal plate, whilst working there. The congestion would severely limit their ordinary ability to avoid the risk, by walking round the grate. 24 There was evidence from Mr Donohue which supported the view that the metal plate, when wet and/or covered with loose material, could be slippery and dangerous. In my view, this evidence was not strictly necessary to establish that the metal cover, when wet, presented a slipping risk to anyone walking on it. This was a matter of common sense (Australian Oil Refinery Pty Ltd v Bourne (1980) 28 ALR 529 at 532-533). 25 His Honour was somewhat dismissive of Mr Donohue's evidence. However, in my view, it provided clear support for a finding that the cover of the grate, in the circumstances in which it was positioned and, having regard to its propensity to become wet and covered with loose material, constituted a foreseeable risk of injury to workers employed by the respondent in its premises. This was the more so, when the employee was required to work in circumstances of congestion and when, as in the present case, the employee needed to focus his attention on the job at hand. 26 The appellant gave evidence, as indicated, that he was not personally aware of anyone previously slipping on the grate cover. However, he was a mere employee not charged with the responsibility of recording such matters. No evidence was given by the defendant. For my part I am not prepared to conclude, in Trojan's favour, that there had been no previous slipping on this cover. As I have already said, in situations where there was no obstruction, employees would no doubt, as a matter of prudence, avoid walking over this cover, especially when it was wet or covered with foreign material. However, in the absence of any evidence from the defendant, the inference is clearly open that the employer was aware of the problems associated with congestion occasioned by the storage of tyres in the outside area and the necessity for employees to make a passage through the congested area which could lead them to traverse the cover, in circumstances where they could come upon it unexpectedly, whilst manoeuvring rolling tyres in front of them. 27 I am satisfied that a prudent employer, in the exercise of his duty of care to his employees, should have reasonably foreseen the risk of injury from the presence of the metal cover and should have taken reasonable steps to remove the risk. Although the appellant gave no direct evidence of slipping on loose rubber pieces on the surface of the plate, it can readily be inferred from the presence of significant accumulations of this material in the area of the cover, and from the photographs which indicate the close proximity of this material to the area of the grate, that such material could be present and could add to the slipping hazard. In my view, a reasonable employer should have had regard to this factor. Again, it can reasonably be inferred that the cover itself did not provide a firm and secure walking surface. This was another factor, in my view, which a prudent employer would have taken into account in discharge of its duty of care. 28 With respect to his Honour, for reasons which I have now given, I consider that he was in error in finding that there was, in the circumstances of this case, no foreseeable risk of injury to the appellant. 29 His Honour found, in effect, that there was nothing that the employer could reasonably have done to prevent injury to an employee from the presence of the cover. With respect, I consider that his Honour erred in this regard. His Honour should have given weight to the uncontested evidence of Mr Donohue, as to means that could have been adopted to obviate or minimise the risk. Specifically, instead of the tin sheet that was provided, a rigid, fixed, metal cover with a slip resistant surface, such as chequer-plate or resinous paint with grit impregnated in it, could have been supplied. This would have fulfilled the role of preventing the entry of undesirable refuse into the drain, when it was in place, and would also have provided a significantly less hazardous walking surface. Reasonable steps could also have been taken, in my opinion, by way of direct issue of instructions or, perhaps, the erection of some simple system of barricades to prevent employees creating ad hoc pathways through congested areas which would take them in dangerous proximity to the cover. These would have been protective measures, reasonably open to the employer, which would not have unduly impeded the accomplishment of the employee's task. (Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 308.5; Connors v Simplot Pty Limited [2001] NSWCA 205). 30 In my opinion, therefore, there existed, in the present case, a reasonably foreseeable risk of injury to the appellant, as Trojan's employee, which risk could reasonably have been obviated or minimised by the taking of reasonable preventative measures. I consider, with respect, that his Honour was in error in not finding a verdict for the appellant. 31 This appeal also sought a reversal of his Honour's finding that there was no relevant breach of the regulation set out earlier in these reasons. As I have reached the conclusion that the appellant should succeed in the appeal for the reasons already given, I find it unnecessary to determine whether, on the facts, there was a breach of the duty imposed by the regulation. I prefer to leave that matter for decision on another day. 32 The parties have, sensibly, agreed that in the event of this appeal succeeding, that a verdict in favour of the appellant should be entered in the amount of $291,823.00, with it being noted that credit should be given to the respondent in the amount of $109,799.00 for Workers' Compensation payments already made to the appellant. 33 Accordingly, I propose that the following orders be made:- 1. The Appeal upheld. 2. The verdict in the Court below in favour of the respondent be set aside and there be substituted a verdict in favour of the appellant in the amount of $291,823.00, with credit to be given to the respondent for the amount of $109,799.00 previously paid by way of Workers' Compensation payments. 3. The respondent pay the appellant's costs of this appeal and also the appellant's costs of the hearing in the Court below. 34 GZELL J: I agree with Foster AJA. *********************** Last Modified: 09/19/2003 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.