Ronald Charles Hamilton v Blue Circle Southern Cement Ltd [2006] NSWSC 147

New South Wales Supreme Court

CITATION : Ronald Charles Hamilton v Blue Circle Southern Cement Ltd [2006] NSWSC 147 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 07/03/2005 - 09/03/2005, 29/08/2005 - 31/08/2005

JUDGMENT DATE : 17 March 2006

JUDGMENT OF : Howie J at 1

DECISION : Judgment for the defendant.

CATCHWORDS : Personal injury claim - Industrial accident - slip case - no matter of principle.

LEGISLATION CITED : Civil Liability Act 2002 - ss 5F(1), 5G Supreme Court Rules - Schedule K

CASES CITED : Kingshott v Goodyear Tyre and Rubber (No. 2) (1987) NSWLR 707

PARTIES : Ronald Charles Hamilton v Blue Circle Southern Cement Ltd

FILE NUMBER(S) : SC 20192/2003

COUNSEL : D. Campbell with A. Capelin - Plaintiff M.T. McCulloch with N. Sharp - Defendant

SOLICITORS : Stacks/Goudkamp - Plaintiff Griffin Hilditch Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 17 MARCH 2006

20192/2003 RONALD CHARLES HAMILTON v BLUE CIRCLE SOUTHERN CEMENT LTD

JUDGMENT 1 HIS HONOUR: This is a claim for damages arising from injuries suffered by the plaintiff during the course of his employment. The only issue before the Court is the liability of the defendant as it is agreed that, if the plaintiff has made out his case, the amount of damages, subject to discount by reason of contributory negligence, should be $587,500. 2 On 31 July 2001 Hymix Australia Pty Limited employed the plaintiff as a truck driver. At 2.30 am that day the plaintiff attended the premises owned and operated by the defendant in order to pickup a load of dry cement. The plaintiff's version of the facts is as follows. He parked his truck on a weighbridge in a bay at the cement works, alighted from it and loaded cement into the truck. He then proceeded to walk back along the weighbridge beside his truck intending to obtain a weight ticket. It was as he walked along the kerb of the weighbridge that he says he slipped and fell, thereby suffering injuries, loss and damage. 3 The statement of claim asserts that the plaintiff's injuries, loss and damage were caused by the negligence and breach of duty of the defendant. The particulars of negligence are as follows: (a) failing to ensure that the area where the plaintiff was required to walk was kept clean; (b) failing to take steps to eliminate the combination of cement dust and moisture resulting in an icy slippery surface; (c) failing to provide a dedicated safe walkway between the truck loading area and the weighbridge ticket machine; (d) failing to cover the surface of the area with appropriate non-slip material; (e) failing to warn the plaintiff of the slippery nature of the surface; (f) failing to have any or any adequate persons on duty to ensure that the walking area was kept free of ice and accumulated cement dust and moisture; (g) devising a system requiring truck drivers such as the plaintiff to walk across a dangerous or potentially dangerous area in order to obtain a weighbridge ticket; (h) allowing the surface of the area where the plaintiff was required to walk to become smooth and slippery; (i) failing to provide a safe means of access; (j) failing to ensure the premises were safe and without risks to health; (k) failing to provide adequate lighting; (l) failing to provide a rail on or near the walkway used by the plaintiff. 4 The plaintiff asserts that as a result of the fall he suffered a head injury, an injury to his cervical spine, lower back injury, shock and sequelae and a number of continuing disabilities. These damages are particularised in the plaintiff's statement of particulars, along with particulars of continuing disability, out of pocket expenses, claims for economic loss and a claim for assistance. 5 The defendant takes issue with the plaintiff's version of the facts and denies that it breached any duty of care it owed to the plaintiff. In particular, the defendant asserts that the plaintiff did not fall in the manner that he suggests. The defendant submits that it is more probable that the plaintiff simply over-stepped and missed his footing on the edge of a kerb, thereby tripping and slipping. The defendant submits that, even if the plaintiff fell in the manner he suggested, the fall was not the result of the defendant's negligence. In particular, the defendant submits that there is no evidence that there was ice or gravelly particles or both on the walkway, or that the area where the plaintiff fell was inadequately lit. The defendant submits that, even if there were ice or gravelly particles or both on the walkway, or the area where the plaintiff fell was inadequately lit, the plaintiff has failed to prove that reasonably practicable measures were available to eliminate these risks or that the failure to implement such measures caused the plaintiff's injuries. The defendant submits further that any risk which did exist was an obvious risk, with the result that the defendant is presumed to have been aware of that risk unless he proves the contrary, pursuant to s 5G of the Civil Liability Act 2002.