New South Wales Court of Appeal CITATION: Pitt v Gardiner & Anor [2005] NSWCA 144 HEARING DATE(S): 3 May 2005 JUDGMENT DATE: 3 May 2005 JUDGMENT OF: Giles JA at 1; Hodgson JA at 18; Tobias JA at 19 DECISION: Appeal dismissed with costs. CATCHWORDS: NEGLIGENCE - whether breach of duty of care - whether unreasonable force used in helping with a wheelbarrow causing appellant to fall - no question of principle. ND CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 Arthur Pitt - Appellant PARTIES: David Gardiner and Danny Billingsley - Respondents FILE NUMBER(S): CA 40437/04 COUNSEL: J E Rowe - Appellant SOLICITORS: D Russell SC & D Priestley - Respondents LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 1113/03 LOWER COURT JUDICIAL OFFICER: Rein DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40437/04 DC 1113/03 GILES JA HODGSON JA TOBIAS JA Tuesday 3 May 2005 PITT v GARDINER & ORS Judgment 1 GILES JA: This is an appeal from a verdict and judgment for the respondents in a claim for damages for personal injury. The question is whether the respondents were in breach of a duty of care owed to the appellant. 2 The appellant and the first respondent were neighbours. On 13 January 2001 the first respondent was moving sand by wheelbarrow from the front of his house to where he was building a shed at the rear. The appellant offered to help and did so. 3 The wheelbarrow had to be taken up three stone steps to a garden area. It was a heavy wheelbarrow when filled with sand. Initially the appellant and the first respondent took it up the steps with the first respondent holding the handles of the wheelbarrow and walking backwards and the appellant pushing the wheelbarrow from the other end. This was done two or three times. 4 The first respondent said he was tired and the appellant offered to take over the part of going backwards up the steps. When the appellant was standing at the top of the steps holding the handles of the wheelbarrow the second respondent, the son of the first respondent, came across and helped the first respondent push the wheelbarrow from the other end. The appellant said that he "did not realise he was going to go so fast" and that he went over backwards. He said, "Well, I couldn't walk back fast enough to - and hold the barrow up and keep control of it and I just went over backwards". 5 The appellant let go of the wheelbarrow and fell on his backside onto the ground, and suffered a fracture of the L2 vertebra. 6 The appellant's submission before the judge was to the effect that the system of work involved was potentially dangerous because, although there was no danger if the respondents pushed the wheelbarrow with appropriate force, the application of excessive force was likely to push the person holding the handles of the wheelbarrow backwards with risk of injury. The respondents conceded that they owed a duty of care to the appellant, although not as to a system of work but as to the particular occasion of pushing the wheelbarrow. 7 The case was subject to the Civil Liability Act 2002, and before the judge particular attention was given to s 5B, which reads as follows: " 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 8 The judge accepted that there was a foreseeable and not insignificant risk within s 5B(1)(a) and (b) of the Act, but held that the respondents had not been in breach of their duty of care. Although he did not say so in terms, plainly enough his Honour was not satisfied that in the circumstances a reasonable person in the position of the respondents would have taken precautions against a risk of harm, to use the language of s 5B. On his Honour's reasoning, he was not satisfied that a reasonable person in the position of the first respondent would have used a different method of getting the wheelbarrow up the steps, and was not satisfied that reasonable persons in the position of the respondents would have done other than providing the pushing power, if I can put it that way, which was applied. 9 Involved in this was that his Honour was not satisfied that the force exerted by the respondents in pushing the wheelbarrow was unreasonable and in addressing for the sake of completeness breach according to the principles found in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 to 48, well known as the calculus described by Mason J, his Honour said: "Nor do I think there was any breach of duty on the part of the third defendant by firstly coming to assist his father and the plaintiff nor in his proceeding to assist them even if there was a possibility that the amount of additional force his assistance brought to the operation might be more than the plaintiff was expecting or for that matter could cope with." 10 Before going to the submissions on appeal I should say a little more of the evidence. The appellant regarded the system of work as appropriate, and there was no other evidence of an expert kind that the method of getting the wheelbarrow up the steps was inappropriate. The appellant knew that the second respondent was going to help the first respondent push the wheelbarrow. He said that he "thought it would go easier". He did not agree that he knew that there would be about double the pressure, saying "probably because I didn't give it a thought at the time". He said he fell because there was more force applied to the wheelbarrow than he had anticipated. 11 On appeal the submissions were attractively put in a number of ways, but they all came down to the submission that on the evidence the judge should have found that the force applied by the respondents was excessive, meaning unreasonable in the circumstances. It was submitted that while there may not have been express evidence going to that matter, that was the only interpretation properly available on the facts the essence of which I have recounted. It was said that the onus was on the respondents as those who applied extra force to ensure that the appellant was ready for it, although that really turned upon the force being excessive in the sense of unreasonable in the circumstances. 12 It may be accepted that the appellant fell because there was more force applied to the wheelbarrow than he had anticipated. However, he must have anticipated that more force would be applied. The question is whether the force was shown to have been excessive in the sense of unreasonable in the circumstances. 13 That is a possible view of the facts. Another view, however, is that the force was appropriate in the circumstances, and the occasion for what happened was that the appellant was unprepared: as he said, he had not given a thought to the extent of the pressure which was going to come from the joining of the second respondent in the exercise. The appellant was unable to say how his feet were placed at the time, and although it was submitted that he was in effect rooted to the ground by the weight of the wheelbarrow with its heavy load it does not seem to me that that can be accepted. He was plainly able to move, and while the movement had to be in accordance with the pressure being applied it still remained for the appellant to show that the force was unreasonable. 14 The judge was of the view that that had not been shown. In my opinion it has not been established that the judge was incorrect in that view of the facts. 15 In the course of submissions there arose the possibility that the judge had erred when he had said that there was "no evidence that the third defendant used unreasonable force or acted inappropriately in what he did". There was evidence, in that it could be submitted and indeed was submitted that on the facts the use of unreasonable force or acting inappropriately could be inferred. The respondents' answer to this was to indicate from an earlier part of the judge's reasons that the words "no evidence" were not used in the sense of no evidence at all. At that earlier part of the reasons the judge recorded the submission for the respondents that there was "no evidence that the third defendant did anything inappropriate", with the explanation from counsel that all that happened was that the appellant did not expect the degree of force being applied. 16 It is plain enough, in my opinion, on reading the judge's reasons as a whole that the judge did not mean literally no evidence. He meant that he was not persuaded on the evidence that the force used was excessive in the sense of unreasonable. 17 In these circumstances, in my opinion there is no occasion to intervene and the appeal should be dismissed with costs. 18 HODGSON JA: I agree. 19 TOBIAS JA: I also agree. 20 GILES JA: That will be the order of the Court. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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