Occupier held liable for security guard’s fall

09 February 2021

In Issue

  • Should the plaintiff’s evidence be accepted in relation to the mechanism of his injury?
  • Whether there was a risk which was reasonably foreseeable; and
  • Whether there were reasonably practical means of obviating such risk.

The background

The plaintiff, Stephen Hubbard, suffered injuries on 5 October when he attended premises occupied by the defendant, then known as Leighton Contractors Pty Ltd, to carry out his duties as a security guard.

The plaintiff claimed that during the course of his patrol at the defendant’s premises, he noticed that an access gate had blown open in the wind. As part of the plaintiff’s duties, he was required to secure that gate. To access the gate, it was necessary for the plaintiff to walk across an overgrown and dense patch of vegetation. It was the early hours of the morning and so the plaintiff used his torch to illuminate his path. While walking, the plaintiff fell in a drainage ditch and injured his knee. Subsequently, the plaintiff developed back problems.

The defendant disputed that the accident occurred as alleged by the plaintiff, asserting that it had taken sufficient preventative measures. In particular, the defendant maintained that the ditch in question had, at all relevant times, been protected with webbing and that, in any event, there was a post that would have prevented the gate from swinging open as alleged by the plaintiff.

The decision

The court awarded judgment in favour of the plaintiff in the sum of $1,212,281.

The issue of liability effectively turned on a factual dispute as to the mechanism of the plaintiff’s injury. In particular, the defendant relied upon evidence from two long-term employees which indicated that the drainage ditch in question had always been protected by webbing and therefore the incident could not have occurred as alleged by the plaintiff. However, critically, during the course of the trial, the defendant’s witnesses were presented with a photograph of the ditch without any protective webbing in place. While the photograph was taken some time after the subject incident, the absence of webbing around the ditch (without explanation) was clearly inconsistent with the defendant’s evidence. In the circumstances, his Honour ultimately preferred the evidence of the plaintiff and accepted that he had suffered his injury by falling into the unprotected drainage ditch, which was obscured by vegetation.

It naturally followed that his Honour found that the risk of harm in falling or walking into the ditch while closing the gate was reasonably foreseeable. His Honour held that the defendant must have foreseen that persons might walk in the area of the ditch it created because its evidence was that it secured the area through webbing to prevent workers, including the plaintiff, from walking in the area.

The defendant submitted that the plaintiff's injury involved an obvious risk. However, in circumstances where his Honour concluded that the ditch was obscured by vegetation and difficult to see in the dark, the submission was rejected.

In circumstances where his Honour concluded that the drainage ditch had not been protected by webbing at the time of the plaintiff’s incident, the defendant’s submission that it had adopted reasonable precautions was not accepted.

Accordingly, his Honour concluded that the defendant breached its duty of care by failing to ensure that the area around the ditch was cordoned off or barricaded to prevent people from falling into it.

The defendant argued that the plaintiff contributed to his injury through his own negligence. Specifically, it was argued that the plaintiff did not properly use his torch to illuminate his path. His Honour rejected that argument - it was reasonable for the plaintiff to have used the torch to illuminate the gate that he was endeavouring to locate at the time of suffering his injury.

Implications for you

This decision highlights the risks involved in proceeding to trial on a factual dispute. The defendant’s witnesses appear to have been surprised in cross-examination with photographs entirely inconsistent with their evidence. Without a reasonable explanation for that inconsistency, the plaintiff’s evidence was preferred in relation the factual dispute and a finding of liability (and a significant damages award) naturally followed.

Hubbard v CPB Contractors Pty Limited (No 2) [2020] NSWSC 1922

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