TOLL TRANSPORT PTY LIMITED v RAYMOND HASKINS [2008] NSWCA 244

New South Wales Court of Appeal

CITATION: TOLL TRANSPORT PTY LIMITED v RAYMOND HASKINS [2008] NSWCA 244 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 September 2008

JUDGMENT DATE: 15 September 2008

JUDGMENT OF: Allsop P at 1; Bell JA at 41; Young CJ in Eq at 42

EX TEMPORE JUDGMENT DATE: 15 September 2008

DECISION: 1. Appeal dismissed. 2. The appellant pay the respondent's costs on the usual basis up to and including 22 May 2008 and thereafter on an indemnity basis.

CASES CITED: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 Thompson v Woolworths (Queensland) Pty Limited (2005) 221 CLR 234

PARTIES: Toll Transport Pty Limited Raymond Haskins

FILE NUMBER(S): CA 40790/07

COUNSEL: Appellant: R W Seton SC; S Glascott Respondent: A J Stone

SOLICITORS: Appellant: DLA Phillips Fox Respondent: Slater & Gordon

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 17/06

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

LOWER COURT DATE OF DECISION: 05/10/07

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40790/2007

ALLSOP P BELL JA YOUNG CJ in Eq

Monday 15 September 2008 TOLL TRANSPORT PTY LIMITED v Raymond HASKINS JUDGMENT

1 ALLSOP P: This is an appeal from orders made by the District Court (Phegan DCJ) that there be judgment for the respondent (the plaintiff) in the sum of $164,370 with costs, arising out of an injury suffered by him after falling from a loading dock at the appellant's place of business. 2 Only two issues are raised; first, whether the evidence permitted the finding of breach of duty and, secondly, whether the evidence required a deduction for contributory negligence. Those two issues were broken into sub-issues in a way that I will describe, nevertheless the appeal relates to interconnected findings of fact. 3 The facts and issues arise as follows, taken substantially from the appellant's submissions. The respondent was a self-employed courier working under contract to the appellant from 2002 to 2003 during which time the respondent was contracted personally to carry out the courier contract. In about 2003, the respondent formed a company which continued to perform the contract with the appellant. 4 The appellant was sued and found liable in negligence as an occupier of the depot in which the loading dock in question from which the respondent fell was situated. The respondent fell from a raised loading dock while looking for a package to be collected for delivery. The loading dock was 1.3 to 1.4 metres above the floor where the vehicles were parked. The purpose of the difference in height was to facilitate the loading of the courier vehicles from the loading dock. Contract couriers such as the respondent identified packages for delivery on the loading dock, the packages having been delivered onto the loading dock via a conveyer belt. The loading dock had two sides, being divided by the conveyer belt. The dock could be used by trucks coming from either side. 5 At the time of the accident, only the side where the couriers parked their vehicles was in use. This was called the "open side" of the dock as distinct from the "far side" where the accident in question occurred. As I said, the open side and the far side were partially separated by the conveyer belt. The far side, where the accident occurred, was 1.2 metres wide, that is from the conveyer to the edge of the dock. Packages were placed on the conveyer belt in a sorting room where employees of the appellant worked. 6 Sometimes, the packages fell off the conveyer belt onto the loading dock floor, including on to the far side of the dock before they reached the end of the conveyer belt. The far side could be accessed from the lower level by forklifts and larger trucks, but if one were to remove packages having fallen off the conveyer belt before reaching the end of the conveyer belt, one needed to walk around the conveyer belt to access and find such packages. On the day in question, the respondent went to the far side of the loading dock to collect a package and in the process slipped and fell over the edge of the loading dock onto the floor below. 7 This recitation of fact can be complemented by recognising a number of things. First, the dock was elevated 1.3 to 1.4 metres. The importance of this is that any slip or fall near the edge of the loading dock could in all likelihood cause a not insignificant injury to the person falling. Secondly, the narrowness of the far side of the dock being 1.2 metres wide, even if clear of parcels, meant that a person negotiating the far side of the dock would not be, at any time, far from the edge of the dock. Thirdly, and importantly in this case, the dock usually had a measure of clutter or congestion with parcels. The appellant's site manager, Mr McKinnon, said that it was congested every day. 8 The primary judge found that the far side was very often significantly obstructed by packages and other objects. The primary judge found, and I quote from p 4 of his Honour's reasons: