Gaffey v Sridate Pty Ltd T/as The National Aquarium Wildlife Park Functions Centre [2002] ACTSC 89 (6 September 2002)

Last Updated: 9 September 2002

RAYMOND JOHN GAFFEY v SRIDATE PTY LIMITED ACN 008 657 609 T/AS THE NATIONAL AQUARIUM WILDLIFE PARK FUNCTIONS CENTRE [2002] ACTSC 89 (6 September 2002)

CATCHWORDS

OCCUPIERS LIABILITY - Skilled contractor - Duty to warn of hazard

PERSONAL INJURIES - Knee injury - Assessment of damages - No issue of principle

Bates v Parker [1953] 2 QB 231

Christmas v General Cleaning Contractors Ltd [1951] 1 KB 141

London Graving Dock Co Ltd v Horton [1951] AC 737

Modbury Triangle Shopping Centre Pty Ltd v Anszil [2000] HCA 61, (2000) 176 ALR 411

Pinborough v Minister of Agriculture (1976) 7 SASR 493

Woods v Multi Sport Holdings Pty Ltd [2002] HCA 9 (2002) 186 ALR 145

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

No. SC 514 of 1999

Coram: Master T Connolly

Supreme Court of the ACT

Date: 6 September 2002

IN THE SUPREME COURT OF THE )

) No. SC 514 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RAYMOND JOHN GAFFEY

Plaintiff

AND: SRIDATE PTY LIMITED T/AS THE NATIONAL AQUARIUM WILDLIFE PARK FUNCTIONS CENTRE

Defendant

ORDER

Coram: Master T Connolly

Date: 6 September 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant

2. Plaintiff to pay the defendant's costs

1. This is a claim for damages for personal injuries arising from an incident which occurred on 17 November 1998 at the premises of the defendant company, being the National Aquarium in Canberra. The plaintiff, who is the principal in a partnership which provides bobcat services, was on the premises pursuant to a contractual relationship with the defendant company to perform certain duties for the defendant company. He had moved his bobcat to an area where he was engaged to perform his services, and in order to obtain better access he says it was necessary for him to move a heavy item of equipment. To do this he would require a heavy chain, which was stored on his truck. He left the area of work and walked up an incline to his truck. It is his case that as he was returning carrying the chain he lost his footing when he stepped on a small plastic object, described as a "bioball" which formed part of the debris lying around. A bioball was tendered in evidence as exhibit A, and it might best be described as being about the size of a table tennis ball, and made of clear plastic shafts in a sphere. The plaintiff fell, and the chain fell onto his leg. He sustained a frank injury to his leg by way of a rupture to his right quadriceps tendon.

2. Liability was clearly in issue. The matter was pleaded as an action in negligence based on the occupiers alleged negligence in the following areas:

(a) failure to safely store the plastic balls used in the aquarium

(b) failure to dispose of the balls so as to avoid the risk that they might be spread onto areas where persons might be walking

(c) failing to warn the Plaintiff of the presence of the balls on or near the pathway

(d) failing to have in place a system of inspection and/or cleaning to ensure that balls were not spread onto or near pedestrian pathways.

3. Counsel for the defendant acknowledged that, had a member of the public suffered injury by slipping on a ball, liability would be established. He acknowledged that there would be a duty on the occupier, against the public at large, to ensure that the small clear balls which would not be a hazard a casual visitor would be expecting were properly disposed of, and to have in place a system of cleaning. But the defendant argues that the plaintiff here was an experienced contractor who was engaged, and had been engaged in the past, to do precisely those things, that is, to clean up the area of debris, which included plastic balls. As such, says the defendant, it has not breached a duty of care owed to the contractor.

4. The plaintiff was born in 1948 and after completing his leaving certificate worked as a bank officer for some 12 years. In 1977 he left the bank and bought into his own business delivering heating oil around Canberra as a contractor for a major oil company. After a couple of years he moved to a new business involving paper and cardboard recycling. This involved running a truck delivering and picking up papers, and the use of a bobcat type front-end loader to load waste paper from the recycling facilities at the Mugga Lane Tip.

5. This business grew into a general excavation machine business over the years. He worked for a while on the Parliament House job, and his son joined him when he left school. By 1998 the business was being run as a partnership with his wife and his son, and also involves a number of employees, which may vary from time to time. It was a substantial business, with gross receipts from contract activities, according to the financial records tendered, of some $307,000 in financial year 1997, $407,000 in 1998, and $518,000 in 1999. At the time of this accident Mr Gaffey said that the business ran some two large bogie trucks, one single axle truck, two bobcats, two small excavators and one large seven ton excavator.

6. He says that he had been involved during the later stages of construction activity at the National Aquarium when it was still under development by the original developers. He says that he had worked on the site for about 18 months, and was familiar with the premises. A Mr Ken Holmes was his contact at the site, and he says that he would get small jobs from time to time at the site. He described this as basically just bobcat work, involving "trenching or we'd do some bobcat work to tidy up." I am satisfied that among the tasks Mr Gaffey was engaged to do at the Aquarium was cleaning up debris. I am satisfied that, to the extent that the Aquarium owed a duty to the public to ensure that the bioballs were disposed of and cleaned up, being particulars of negligence (b) and (d), the defendant compiled with this duty by engaging Mr Gaffey to clean up the area. It seems to me that the central issue in this case is whether Mr Gaffey knew of the existence of the bioballs in the area, and whether the Aquarium owed a duty to him to warn him of their presence. If he, as the contractor who undertook tidying up work, knew of the existence of the balls, it seems to me that the Aquarium was not in breach of a duty of care. If he knew of the presence of the bioballs, it seems to me that it is his duty, as the principal of a substantial business, to ensure that he looked out for his own safety in working in an area that he knew contained an unusual hazard by way of small transparent spheres on which a person might easily slip.

7. He says that on this day he arrived at the site and the job to be performed was to move some large tree trunks that had been used inside an aquarium tank. He says he started to work on this, and then was told by Mr Holmes that his job for that day was to remove a mound of manure that was to be used for a worm farm. He says that before he could move the manure he needed to move an old carriage that had been used for transporting visitors around the site. He says that he was told to move that, and he decided that he would have to use a chain to attach the carriage to the bobcat to move it. He carried such a chain in his truck, and he says that he walked up to the truck through a pathway.

8. He says that he got the chain from the truck, and then carried it by hand back down the path, which he described as a level path with a gradual slope. He says that as he walked down the path

"my feet went from under me- literally flew from under me and I've never experienced that before. I landed flat on my back and at the same time as I hit may back on the- as my back hit the ground, I felt in my right leg like somebody had hit me with a baseball bat or something".

He said that the chain had struck him at the top of the left knee as he fell.

9. Mr Holmes attended and summonsed an ambulance, and Mr Gaffey was taken to Canberra Hospital, where he was admitted, and operated on by Dr Hannaford to repair the damage to his tendon. He was hospitalised for about five days, and then was immobilised in a fixed brace until 28 December, when the fixed brace was removed and a flexible brace was fitted. He says that he began to return to work activities at around the end of January 1999, and completed a program of physiotherapy by March 1999.

10. In his evidence in chief Mr Gaffey did not say that he was unaware of the presence of bioballs on the site. In cross-examination he denied that he had seen thousands and thousands of them, but then acknowledged that he had probably seen thousands of them. He said that he first became aware of them during the period of the former owner of the Aquarium. He denied that he had seen them littered around the site for years, and then added

"I don't think I'd seen them and noticed them as what they were"

He agreed that the main duty he had had since 1991 in the Aquarium was to clean up and remove debris. He agreed that the debris would include broken down structures, manure and general rubbish. It was put to him that the debris would also include bioballs, and he said he could not remember that. When pressed on this, he said that

"it doesn't jump at me that there were used bioballs there"

11. He acknowledged that he had prepared a diagram to explain the state of the accident site in January 1999, and that this diagram showed where bioballs were lying around. He was asked whether he knew that bioballs were in the area on the day he was injured, and he said

"The reason I know that there were bioballs there, because the next day, when my operator came, he took a photo of the area, and in that photograph was the bioballs."

12. He agreed that since about 1992 he had been engaged about twice a year to clean up the general area where the accident occurred. It was put to him that from when he started this there would have been bioballs in the area. He replied, at transcript page 30

"Yes, I'd have to agree with that. There would have been- there may have been bioballs, yes."

He eventually agreed, at transcript page 37, that he had seen bioballs in this area "probably on prior occasions", and had cleaned them up along with the general rubbish with the bobcat.

13. I formed the impression that Mr Gaffey was trying his best to give truthful answers, but also to minimise his knowledge that there were bioballs in the area. I found his earlier claims not to have any recollection of bioballs unconvincing, but it seems to me that at page 37 he has acknowledged that he knew that bioballs were in the area, and he had cleaned them up along with general rubbish in the past. He then said that he had previously cleaned up bioballs only from within a fenced compound.

14. Again it seemed to me that Mr Gaffey was trying to deny any knowledge of bioballs in the area where he fell by claiming that his prior experience was with bioballs only in the fenced maintenance compound, identified in the chart tendered as exhibit C. He acknowledge, however, that waste material was stored "haphazardly" at the Aquarium (transcript page 37), and he acknowledged that when he had cleaned up debris in the past the debris had included bioballs (transcript page 39). He said that he assumed that they would be capable of being moved around easily by wind. It is his case that they had been scattered around in the area that he had marked on the chart as being between the maintenance building and the maintenance area, which is where the fall occurred.

15. It was put to him that he had cleaned up bioballs on 11 November, the week before the accident, and he said that he did not recall this. It was put to him that the job for the 18^th was a continuation of the job on the 11^th, being a general clean up of the area. He denied this.

16. Accounts were tendered that showed that the plaintiff's partnership billed the defendant for work done on 11 November 1998 being described as

"Clean up inside maintenance compound and load out bin. 20 mtrs of worm material stockpiled and 20 mtrs of rubbish for new bin."

There is a further account for the days 17 and 18 November. This shows the work billed for as being, for 17 November "Operator Ray. Start cleaning area into hoppers", and for 18 November "Operator Don. Finish cleaning area and moving spoil to other area."

17. Mr Gaffey denied that this account was accurate, and indeed described it as a lie at transcript page 49. He then said that it was inaccurate, and he denied that on 17 November he spent the time shown on the invoice, being one and a half hours, cleaning the area into hoppers.

18. I find Mr Gaffey's denial that he was cleaning up on the day of the accident inconsistent with his acknowledgment that this was his normal role, and with the billings of his partnership for both 11 and 17 November, which billed for services for cleaning, and on the day of the accident billed for his services for 1.5 hours for "start cleaning area into hoppers". I find that he had worked on this site over a long period, and that he knew that bioballs were a waste product that had to be removed, and was a part of the general debris. I find that he knew that these were light and could be moved around in the wind.

19. Mr Gaffey did not himself see what he tripped on, and if this was the only evidence, he could only succeed if I were to make the inference that it was a bioball. This inference would not be inevitable, as there are conflicting versions of the history. Although he says that he does not know what he slipped on, the ambulance report records a history that the patient "slipped on gravel." The records of the emergency department at the hospital contain a history that the plaintiff was

"carrying a heavy chain at work. Chain swung into r knee. Slipped awkwardly and r knee gave way."

20. If this was the only evidence, it seems to me that the plaintiff would not establish, on the balance of probabilities, that he was injured by slipping on a small plastic ball. In order to remedy this gap in the evidence, the plaintiff called a Mr Reid, who at the time was a truck driver for Pacific Waste Services, who gave evidence that he witnessed the accident. In his evidence in chief he said that he was loading his truck and he observed the plaintiff fall. He said that he "must have stepped on one of these balls" He said that on that day there

"was a lot of little balls come from somewhere, floating around the bin....swirling around in the wind and rolling down the grade...in the track".

21. Mr Reid was cross-examined at some length as to whether he did in fact see the incident. I am satisfied that he did. In cross-examination he went further and said that he did see the plaintiff's foot come into contact with a ball. I accept this evidence. In giving this evidence, he said that there were "hundreds of balls everywhere", and then that there were "thousands of balls". He agreed with the proposition that "any body working there would be covered with balls", and added, unprompted by cross-examining counsel "You'd have to watch where you step."

22. It seems to me that the plaintiff must seek to rely on the evidence of Mr Reid as being the only witness who can give evidence to establish the fact that it was a bioball that Mr Gaffey slipped on. In giving this evidence, which I accept, Mr Reid described the balls as being very obviously present in the area where he observed Mr Gaffey to fall, variously stating that there were "hundreds" and then "thousands" of them lying around, and he embellished this by volunteering that it would be necessary to watch your step to avoid stepping on a ball. On this evidence, Mr Gaffey must, if he was taking appropriate care of his own safety, have been aware of the presence of the bioballs as he walked down the path where Mr Reid saw him slip on one of the many and obviously apparent bioballs.

23. The plaintiff tendered a photograph exhibit D which was taken the day after the accident and which he says showed the area where he fell in the condition that it was on the day of the accident. The presence of a large number of bioballs is apparent from the photograph. The photograph, it seems to me, goes to confirm that this was an obvious hazard.

24. Mr Tinsdale, who was at the time General Manager of the Aquarium, gave evidence for the defendant company. He gave evidence that when the company took over at the Aquarium in June 1998 there was rubbish everywhere, including bioballs scattered in various areas. He said that there were a range of issues to deal with in making the general area safe and presentable, and that in November they wanted to establish a worm farm in the area near the maintenance yard, and clean up that area. He said that this involved cleaning up bioballs as part of the general rubbish in that area, which was the area where Mr Gaffey fell.

25. He said that he instructed his staff to engage someone to do this work, and Mr Gaffey was engaged. He says the task was to collect organic material and move this to establish a worm farm, and that before this task was undertaken, to clean up and remove the rubbish in the area where the worm farm was to be established. He said that the rubbish included bioballs, and that these were lying around in the general area, because they were light and would be blown around. In cross-examination he said

"that's what we got Ray in to do, was to clean up those areas where the bioballs had been blown into the piles of rubbish."

26. It was put to him in cross-examination that he did not know what instructions had been given to Mr Gaffey because he did not directly instruct him, and he said that the invoices received from Mr Gaffey and which Mr Tinsdale had paid for 11 and 17 November showed that Mr Gaffey was cleaning up the maintenance compound. He said that the invoice of 11 November referred to the area where the accident occurred.

27. Much time was spent in cross-examination by counsel for both the plaintiff and the defendant in trying to clarify what both Mr Gaffey and Mr Tinsdale meant by the various descriptions they gave to the area where the accident occurred. I do not think that much turns on this, as I am satisfied that the accident occurred where Mr Gaffey says it did, and I have found, on all of the evidence, that Mr Gaffey had performed cleaning jobs in this general area in the past, and had been aware that included within the debris that he had previously cleaned up were bioballs. I have also found that Mr Gaffey was aware that the bioballs were light and could be wind blown beyond any piles into the general area. I also find, on the evidence of Mr Reid, that on the day of the accident the bioballs were very obviously present in the area where Mr Gaffey had his fall. I do not accept the version of events put by Mr Gaffey that he had only been aware of the presence of bioballs within the fenced area described as the maintenance compound.

28. It is clearly the law that the defendant, as the occupier of land, owes a duty of care to the plaintiff as a lawful entrant to the land. In Modbury Triangle Shopping Centre Pty Ltd v Anszil [2000] HCA 61, (2000) 176 ALR 411 Gleeson CJ said at [17]

"That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park".

So in this case the defendant owed the plaintiff a duty of care in relation to the area of the Aquarium where he was to perform his contractual tasks. The imposition of the duty of care requires a defendant to take reasonable steps to protect the plaintiff. The question, as Mason J said in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 is what a reasonable person, in the position of the defendant, would do in response to the duty of care and the risk presented.

29. In the present case the duty said to be owed by the occupier to the plaintiff is said to be a duty to warn of the presence of the bioballs, and a duty to ensure that they do not present a hazard. As I have found that the plaintiff was engaged to provide his services as a skilled machine operator to remove debris, including the bioballs, the real issue goes it seems to me to go to warning. To the extent that the pleadings allege a failure to clean the area, it seems to me that this is answered by the fact as I have found it that the plaintiff was engaged to clean the area.

30. In Woods v Multi Sport Holdings Pty Ltd [2002] HCA 9 (2002) 186 ALR 145 Gleeson CJ said that

"Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant."

31. There is authority for the proposition that, where an independent contractor is engaged to perform a task and that contractor is injured as a consequence of a risk that is ordinarily incidental to the task they have been engaged to perform, the occupier is not liable on the basis of a claimed failure to warn the contractor of a danger that would have been obvious to a competent contractor, even though it might not be obvious to an ordinary visitor to the premises. In Pinborough v Minister of Agriculture (1976) 7 SASR 493 Hogarth J in the South Australian Supreme Court said that

"I do not think that the defendant was under a duty to warn skilled operators against the type of hazard which they would commonly incur in the ordinary course of their duties."(at 499)

He had earlier in effect endorsed the proposition advanced to him by counsel for the defendant that

"where an invitee is an independent contractor, the fact that he is an independent contractor and so is left to decide how and in what manner he will perform his task, affects first the duty of the invitor to him and secondly the question whether there is an unusual danger. He said that it is the duty of the contractor to satisfy himself as to the safety or condition of that part of the premises in which he is to work, and that the experience and skill of the contractor in respect of a particular task is relevant in determining whether a danger is to be classified as unusual."

32. His Honour was there relying on a line of English authority from London Graving Dock Co Ltd v Horton [1951] AC 737 and followed by the Court of Appeal in Christmas v General Cleaning Contractors Ltd [1951] 1 KB 141 and Bates v Parker [1953] 2 QB 231. In Christmas' case Denning LJ in what seems to me to be an important passage, stressed that this doctrine applies against an independent contractor, but does not provide an answer in a case where an employee brings a claim against his employer for being sent to perform a dangerous task. His Lordship said

"There is a difference between a masterman and a journeyman. A masterman, working on his own account, who knows of the dangers, has a choice before him. He need not do the work if he does not wish to run the risk. But a journeyman, working for another, has no such easy choice. He has been sent to do the work and he may well feel that do it he must, even though he knows that it involves risk."

33. A finding that there is no liability on an occupier at the suit of an experienced contractor who is injured by tripping over a hazard that he has been engaged to clean up does not, it seems to me, imply any general weakening of the liability imposed by the common law upon employers to safeguard their employees for the reasons stated by Lord Denning. I have found that the plaintiff was aware of the existence of bioballs on this site, and that he had been engaged to clean up the general area where bioballs were to be found, and that the debris that he had to move included bioballs. I accept the evidence of both Mr Tinsdale for the defendant, and Mr Reid who gave evidence in the plaintiff's case that the bioballs were very obviously present on the day of the accident. I place some significance on Mr Reid's evidence that the balls were so apparent that "You have to watch where you step." Mr Gaffey, unfortunately, did not watch where he stepped, and he suffered an unfortunate accident. I am not satisfied, however, that his accident can be held to have occurred as a consequence of the negligence of the defendant.

34. The defendant clearly owed a duty to the world at large to remove these apparently hazardous objects from its premises, which were operated as a tourist attraction. A visitor who slipped on these unusual clear spheres would succeed in an action for damages. In order to comply with its duty of care to the general community, I am satisfied that the defendant engaged the plaintiff, the principal in a substantial contracting partnership, and a man with prior experience and knowledge of the conditions at the Aquarium, to clean up the area around the maintenance compound and to remove the debris, which I am satisfied Mr Gaffey knew to include bioballs. I find no breach of the defendant's duty of care in failing to expressly warn Mr Gaffey of a hazard that was known to him as the contractor who had been engaged to remove the hazard. I direct a judgment for the defendant, with costs.

35. If I be wrong in my primary finding, it is appropriate for me to proceed to assess damages. There was little dispute on the medical evidence in this case, and the defendant did not tender any expert material beyond hospital and ambulance notes. The defendant did have the plaintiff examined by a medico legal expert, Dr Billett, but his report was not tendered, and I can draw from this the inference that it would not have assisted the defendant's case. I accept the plaintiff's medical evidence. It is clear that the plaintiff sustained a tear of his tendon that required surgical intervention. I am satisfied that the original frank injury was painful, and I accept his evidence that he thought at first that he had broken his leg. I am satisfied that the process of recovery was very uncomfortable, with his leg being confined to a fixed cast for a period, and then to a flexible cast until he was able to return to work at the end of January 1999.

36. Dr Hannaford, the orthopaedic surgeon who performed the procedure to repair his tendon, reported in April 199 that the plaintiff's injury was painful and he suffered significant restriction of activity during his rehabilitation period. He certified the plaintiff as having been fit to return to his usual work on 31 March 1999, although I accept the plaintiff's evidence that he was keen to return and began a graduated return to full duties in late January. His opinion was that the plaintiff was fit for full duties, but that the right knee would tire, and he gave a good prognosis for further improvement.

37. This is quite consistent with a report from Dr Brook, a rheumatologist, who in January 1999 said that the plaintiff remained incapacitated and would be so for some weeks. Dr Brook again assessed the plaintiff in October 1999 and said that the right knee was at that point only mildly symptomatic. He said that the plaintiff was fit for all work and required no domestic assistance, and said

"he requires no further treatment and the long term prognosis is that the knee will basically remain the same as it is at present albeit his nuisance type symptoms may become less of a nuisance."

38. I am satisfied that the plaintiff has had a near full recovery following the surgery, and I note that the most recent expert reports refer only to nuisance type symptoms which were resolving as at October 1999. I accept his evidence that he still has some of these low level symptoms. In respect of general damages, and taking into account all of the evidence, I would assess these in the sum of $35,000 all for the past, generating interest of $1950 for a total award of $36,950.

39. Past out-of-pocket expenses were agreed in the sum of $6100, and I award this sum. I am not satisfied on the medical evidence that any future expenses are made out.

40. There was considerable dispute between the parties as to the appropriate approach to economic loss. The plaintiff's claim was particularised as a buffer in the order of $30,000 for the period in which he was not able to work, but the documentary evidence did not establish this with any precision.

41. He had said in evidence in chief that he was not able to engage another operator to perform the work that he would have performed for the partnership, but he agreed in cross-examination that there was a person by the name of Don who did from time to time come in to perform work for the partnership. The account shows that it was Don who completed the cleaning job at the Aquarium on 18 November.

42. I am satisfied from the evidence that the plaintiff was unable to perform his normal duties for the partnership until he began a gradual return to work in January 1999, and that he was not back to full duties until some time after this. I am satisfied, however, that he was able to engage other persons in the business, although there is not clear evidence of the cost of this. The business was experiencing a period of growth at the time of the accident, and the financial year of the accident showed a higher turnover and profit than the period before the accident.

43. I accept the plaintiff's evidence that, although the partnership involved a three way split of income, he was the principal of the enterprise, and I accept his evidence that he was responsible for about 60% of the earnings. The evidence establishes a charge out rate of about $60 an hour for the plaintiff when he was operating machinery, and the financial year records show a gross billings for the enterprise in the order of $10,000 a week. Accepting the plaintiff's version of his share of this, it amounts to a gross loss of $6,000 a week, although of course the costs of generating this income must also be taken into account.

44. Counsel for the plaintiff acknowledged that the figure could not be defined with accuracy, but submitted that an appropriate buffer for the period until his return to full duties in early 1999 would be somewhere between $20,000 and $30,000. He also urged a modest buffer for the future on the basis that, although he is now fully able to participate in the business, albeit with some nuisance value symptoms, there would be some disadvantage on the open marked. This figure, it seems to me, is based on gross billings, and does not reflect costs of outgoings.

45. Taking all of the evidence into account I award a buffer for past and future economic loss, inclusive of interest, in the sum of $20,000.

46. A claim was particularised for domestic assistance from his wife and family in the period of convalescence. I am satisfied from the evidence of Mr and Mrs Gaffey that he was substantially immobilised when in the fixed brace, and required extensive assistance, which dropped off as he moved to a flexible brace and graduated return to work, recovering full independence as he returned to full duties. This is particularised as a claim for $5000, which seems to me to be appropriate as an award inclusive of interest on all of the evidence.

47. This amounts to an award of $68,050 which, if I had found liability, I would have assessed as appropriate damages. If I had found primary liability I would still have had to deal with the issue of contributory negligence. It was pleaded against the plaintiff that he failed to keep a proper look out and failed to watch where he put his feet. On the evidence of Mr Reid and Mr Tinsdale, which I have accepted, I have found that the bioballs were very obviously present on the day of the accident, and even if the Mr Gaffey had not previously been aware of their presence, contrary to my primary finding, I find that he should have been aware of their presence on the day of the accident and should have been careful as he engaged in the obviously hazardous task of walking on a slope while carrying a heavy chain. As Mr Reid said, the bioballs were so scattered about this area that "You have to watch where you step". Mr Gaffey did not do this, and this must sound with some significance in contributory negligence, particularly as he was carrying a heavy chain, which was what appears to have caused his injury as he fell. I would have assessed contributory negligence at 50%, which would have resulted in an award of damages of $34,025 if liability had been established.

48. There will be judgment for the defendant, with costs.

I certify that this and the forty eight (48) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 6 September 2002

Counsel for the plaintiff: Mr R Crowe

Solicitor for the plaintiff: Blumers Personal Injury Lawyers

Counsel for the defendant: Mr F J Purnell SC

Solicitor for the defendant: Meyer Clapham

Dates of hearing: 30 July 2002

Date of judgment: 6 September 2002