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Worker awarded $1.2M after falling into ditch – employer found negligent

A security guard fell into a ditch resulting in severe disability.
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Worker awarded $1.2M after falling into ditch – employer found negligent

Worker awarded $1.2M after falling into ditch – employer found negligent

18 February 2021

By Gaby Grammeno

When a security guard fell into a ditch at his employer’s premises, his injuries resulted in severe disability. His employer insisted the accident could not have happened as the worker alleged, because the ditch was guarded with a barrier. The focus of the case before the court was whether the incident occurred as the security guard claimed.

The incident

The worker was employed by a business providing security services. His role was to patrol a number of compounds that had been established along the Pacific Highway as part of the reconstruction works between Coffs Harbour and Woolgoolga.

In October 2011, his job was to visit each of the compounds during his shift from 6.00pm to 6.00am and check that the buildings in each compound were secure. He would generally visit each compound four times each shift.

On the night of the incident, he was carrying out his duties at premises occupied by a major construction company when he fell into a drainage ditch while walking towards one arm of a gate that had swung open. Despite using his torch, he did not see the ditch, which was obscured by long grass and vegetation. He injured his right knee and subsequently developed back problems.

He claimed that the occupier of the premises where he was working had been negligent in failing to take certain precautions to prevent anyone from falling into the ditch. Specifically, he alleged that there was no barrier around the ditch at the time, that the company had failed to illuminate the area near the ditch or ensure it was safe to walk in. They had failed to arrange the premises such that the arm of the gate did not move beyond the ditch, and failed to warn by signage or other means that there was a ditch there.

The occupier of the premises disputed these claims, submitting that the ditch had been secured with star pickets, posts and para-webbing to prevent workers from walking in the area.

The case was heard in the Supreme Court of New South Wales.

In court

By the time of the hearing, the worker was 64 years old and had been unemployed for nine years. He presented as someone with a severe disability, using a walking stick and in constant pain.

The occupier of the premises suggested that the worker’s version of events was improbable, and pointed to a number of inconsistencies in his evidence. Its statement also asserted that the worker was ‘an unimpressive witness and patently unreliable’.

The judge, however, noted that while the defendant’s witness was doing his best to give evidence on the basis of his recollection, his statement that the area of the ditch was always protected by meshing and posts was shown to be wrong, as photographs taken the following year showed no posts or webbing. Whatever the changes between the date of the accident and the date of the photos, it was clearly not correct that the ditch was always protected.

Moreover, the judge did not agree that the worker was an unreliable witness.

He observed that ‘the competing positions of the parties cannot be reconciled’.

Nevertheless, he accepted the worker’s evidence, supported by the medical reports, that he fell or walked into an unguarded ditch as he was retrieving the gate that had swung fully open. He said it was difficult to understand how the worker could have fallen into the ditch if it was guarded by pickets and webbing.

The company occupying the land where the incident occurred owed a duty of care to the worker. The judge took the view that the risk of harm had been both reasonably foreseeable and not insignificant. The worker was not guilty of contributory negligence because he had been using his torch, in the absence of other illumination.

The company was found liable for the incident, and damages were assessed amounting to a total of $1,212,281.

The bottom line: A fall can have serious consequences for a person with pre-existing degenerative conditions. People with management of worksites must ensure ditches, trenches and other such hazards are securely guarded.

Read the judgment

Hubbard v CPB Contractors Pty Limited (No 2) [2020] NSWSC 1922 (31 December 2020)

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