Thelander v Sydney Ferries Corporation  NSWSC 1530 – 4 November 2014
The plaintiff instituted proceedings against its employer, the Sydney Ferries Corporation, seeking damages for personal injuries sustained when he tripped over a sill while aboard a ferry.
In this Alert, Partner Robert Tidbury and Solicitor Candice Stower discuss the key factors considered by the Court in its assessment of the employer’s liability exposure and contributory negligence by the plaintiff.
The plaintiff, a general purpose deckhand, was a longstanding employee of the defendant with many years of experience working on board a particular ferry known as the Queenscliff. On the date of injury, the plaintiff approached the crew’s mess area and tripped on a raised sill forming part of the doorway, when his toe caught on the top of the step. The plaintiff thought the sill was lower then what was actually the case as he mistakenly assumed that he was aboard the Queenscliffwhen in fact he was on board another ferry known as the Narrabeen.
Evidence was led at trial by the plaintiff, and accepted by the Court, that the distance between the top of the sill to the floor level on each ferry differed by seven centimetres.
The Court found the employer was negligent for the incident by reason of the following:
- From at least 1999, the plaintiff had been a permanent member of the crew of the Queenscliff, and rarely worked on the Narrabeen. While the plaintiff would have been familiar with the height of the equivalent sill in the Queenscliff, he was not familiar with the height of the sill in the Narrabeen.
- Whilst the plaintiff, an experienced and qualified deckhand, would have been aware that the sills vary in height between different vessels, it was not expected that he would be familiar with the height of the sill in the Narrabeen, particularly given there was no warning or marked visual clue that might have prompted the plaintiff to consider the potential risk.
- The act of the plaintiff tripping over the sill amounted to mere momentary inattention and was not a casual attitude to his own safety. The Court had regard to the principle affirmed in authorities such as Czatyrko v Edith Cowan University whereby an employer in designing a method of operation for the performance of tasks must take into account the possibility of thoughtlessness, inadvertence or carelessness, particularly in a case of repetitive work. The possibility of an employee’s inadvertence increases in circumstances where that employee is concentrating on a task to the extent that they might not notice any risks, such as a deviation in the expected step height.
- In circumstances where the height of the sills vary, the Court considered a common sense precaution to draw the plaintiff’s attention to the risk would have been to paint the sill with a contrasting colour. This measure was in fact undertaken by the employer after the incident. The Court found if that measure had been in place at the time of the incident, it was unlikely the plaintiff would have tripped over the sill.
- The employer made submissions in respect of the plaintiff’s casual attitude to his own safety by raising his concession that he was a long term heavy drinker.The Court considered that while that fact might be true, he was not drinking on the date of the incident, which was demonstrated by his contemporaneous medical attendances. The Court also determined it unlikely that the plaintiff, as an employee who loved his job, would risk being intoxicated at work given the employer regularly tested for drugs and alcohol. Therefore, the plaintiff’s long term drinking was only a relevant consideration when it came to making an increased allowance for vicissitudes in the assessment of his damages, to the extent that his drinking may have diminished his capacity to work.
The Court declined to find that the plaintiff was contributory negligent for the incident on the basis that the plaintiff was only guilty of inattention or inadvertence. Although he acted on the mistaken assumption that he was onboard his usual ferry, the Queenscliff, even if he had known he was on the Narrabeen, the incident might still well have occurred given the failure of the employer to alert its employees’ to the height of the sill. Although the plaintiff could have acted with greater care, his failure to do so does not provide for a finding of contributory negligence, especially when most other workers placed in the same situation would have acted in the same way.
- To reduce the risk of injury to employees in circumstances where inadvertence or inattention by an employee bred by familiarity with a task is likely to occur, the adoption of straight forward measures such as signage or colour variation, that effectively draws an employee’s instinctive attention to the risk, is a must.
- Absent contemporaneous evidence from a co-worker/supervisor that a worker is affected by alcohol at the relevant time of incident and/or reference to intoxication in the initial medical records compiled post incident, it is very difficult for a defendant employer to establish contributory negligence by the worker, even in the case of an employee known to habitually drink alcohol to excess.