Where the plaintiff cannot recall the incident and there are no eyewitnesses, can negligence be established? His Honour, Burnett AM, DCJ, considered this critical issue where the plaintiff was unable to recall whether he fell from a machine table 7.7 metres above ground or from standing height.
In issue
- This case involved a plaintiff’s claim for damage for personal injury in circumstances where he could not recall the event giving rise to those injuries. The plaintiff inferred (despite not recalling having done so and there being no eyewitnesses) that he fell 7.7 metres from a machine table, suffering injuries as a result. A further critical issue at trial was whether the plaintiff suffered an epileptic seizure after the inferred fall and prior to being found on the factory floor.
The background
On 10 July 2018, the plaintiff was working as a machine operator for the defendant, supervising a large piece of equipment which cut heavy metal blanks from large sheets of steel positioned on a bed by use of a computer activated by a torch (the machine). The worker supervising the machine was located beside the machine. However, when the machine needed to be stopped to attend to issues (which was common), workers were required to stand on top of the machine table (the table) and lean over the cutting head to activate the stop button. The table was 7.7 metres above ground.
Between 11am and 12.54pm, the plaintiff was supervising the machine. A witness saw the plaintiff standing on the table. No more than 30 minutes later, that witness saw the plaintiff lying on the ground, with a blank look on his face and dirt on his back. Due to the dirt on his shirt, the witness inferred the plaintiff had been lying on the floor, and called for assistance. The plaintiff had no memory of the incident and there were no eyewitnesses. He suffered multiple injuries to the lumbar, thoracic and cervical spine, right shoulder and right hip, a minor head injury and a secondary psychological injury.
It was alleged at trial by the plaintiff’s counsel that the defendant failed in its duty of care to provide him with a safe place of work by not having installed a suitably enclosed platform which would have permitted him to safely stop the machine without risk of falling 7.7 meters from the table onto the floor.
At trial, the following issues were considered, the third of which was most important:
- What was the cause of the fall? Did the plaintiff trip on the grated cutting table, or did he fall because of an epileptic seizure?;
- Did the defendant breach its duty of care by failing to put in place a system of work that would have prevented the fall irrespective of the cause of the fall?
- Was the plaintiff on the machine table or was he supervising from the floor when he fell?
The parties identified two competing scenarios giving rise to the plaintiff’s injuries, namely:
- The plaintiff fell from the table to the shop floor (the plaintiff’s version of events); or
- The plaintiff was standing on the shop floor, and fell to the ground as a result of an epileptic seizure (the defendant’s version of events).
As there were no eye witnesses and the plaintiff did not remember the incident, the evidence in support of both versions of events was entirely circumstantial.
The decision at trial
Burnett DCJ dismissed the plaintiff’s claim.
Cause of the fall
His Honour agreed with the plaintiff’s treating Neurologist, Dr Jayasinghe who considered it likely that a seizure occurred.
Did the defendant breach its duty of care?
The court concluded if the plaintiff was able to establish that he fell from the table, the plaintiff would be able to establish breach of duty and causation because the defendant did not have in place any barrier to prevent a fall from occurring. Thus, liability came down to which version of events would be accepted.
Considering equally plausible competing scenarios
Upon considering the totality of the evidence, His Honour concluded that each scenario was equally plausible on the evidence, and each of these scenarios was equally open. When considering the issue of equally plausible scenarios, His Honour referred to the following principles:
- Where there are equally probable inferences available to explain the incident, the situation does not authorise a court to choose between guesses on the basis one guess seems more likely than the other, pursuant to the decision in Jones v Dunkel (1959) 101 CLR 298.
- While circumstantial evidence could be relied upon to establish negligence, that evidence must do more than give rise to conflicting inferences of equal degrees of probability, pursuant to the decision in Luxton v Vines (1952) 85 CLR 352.
Taking into account the above, His Honour held that the plaintiff failed to establish negligence, a breach of statutory duty provided for by s 305D of the Workers’ Compensation and Rehabilitation Act 2003, or that the defendant breached any duty causing injury to the plaintiff.
Implications for you
The decision in Cameron v Atlas Heavy Engineering Pty Ltd reinforces the long-standing position that a court will not be satisfied by mere speculation. It is a timely reminder that the facts of the matter must do more than give rise to conflicting inferences of equal degrees of probability in order for a plaintiff to succeed in establishing liability.
