An incontrovertible truth: Photographs versus memory – Hutchison Construction Services Pty Ltd v Fogg; Fogg v Les Quatre Musketeers Pty Ltd (t/as Plastamasta South Coast) [2016] NSWCA 135

The plaintiff sustained injuries when he strained his ankle descending some steps while delivering sheets of plasterboard to a construction site. The principal contractor, Kane Constructions (NSW) Pty Ltd (Kane) engaged Hutchison Construction Services Pty Ltd (Hutchison) to perform interior refurbishments. Hutchison in turn engaged the plaintiff's employer, Plastamasta South Coast (Plastamasta), to supply construction materials.

There was a dispute in the evidence as to whether or not the final step before the ground had been constructed at the time of the accident, and the plaintiff's evidence that it was not was ultimately accepted. It was generally agreed that there was a 60 millimetre lip on the edge of the second last step. The trial judge² assessed the risk of harm as "the risk that the [p]laintiff would suffer injury by virtue of losing his footing on the uneven surface on which he was directed to unload the heavy and unwieldy plasterboard products." He found that Hutchison, which directed the plaintiff as to where to offload the material, could have avoided this risk by having the material unloaded at the level loading dock which was 20 to 30 metres away or devised some other unspecified access to the site. Hutchinson's failure to do so was a breach of its duty of care.

The trial judge dismissed the claim against Kane as it did not play a role in the delivery of the materials. He also dismissed the claim against Plastamasta on similar grounds. The plaintiff's contributory negligence was assessed at 15%. The trial judge assessed damages at $944,255.03. Hutchison appealed the decision. The plaintiff cross-appealed.

A challenge to the trial judge's findings of fact on the basis that these were inconsistent with incontrovertible facts³ was rejected by the New South Wales Court of Appeal (Court of Appeal). A photograph said to be showing the step in situ as at the date of the accident was not accepted as incontrovertible evidence of its existence as there was no date stamp and the dating of it was based upon witnesses whom the trial judge had already found to be unreliable.

The Court of Appeal did not accept Hutchison's submission that the trial judge had erred in casting the risk of harm too broadly, as the 'uneven surface' referred to was the missing step and the lip where the accident occurred, and not every uneven surface on the site.
The Court of Appeal rejected Hutchison's submission that the trial judge had not adequately assessed the reasonableness of the precautions it should have taken. It held that there was nothing unreasonable about placing the materials 20 to 30 metres away from where they were to be used. Furthermore, the fact that Hutchison had later installed a temporary timber ramp to receive delivery of materials showed that this was not an unreasonable precaution.

The Court of Appeal accepted that causation of the injuries was obvious (specifically, walking upon the uneven surface caused the ankle strain) and so intertwined with breach of duty of care that it did not need to be further articulated by the trial judge as submitted by Hutchison.

The finding of contributory negligence was challenged by the plaintiff and the amount of contributory negligence was challenged by Hutchison. The Court of Appeal elected not to disturb the finding, which was appropriate because the plaintiff knew that the site was uneven, and therefore not suitable for unloading materials, but proceeded to do so. It also did not disturb the amount assessed for contributory negligence, on the basis that the accident was caused by the selection of an inappropriate site for unloading, which was controlled by Hutchison, rather than the plaintiff failing to keep a proper lookout, and therefore should predominately be apportioned to Hutchison.

The Court of Appeal upheld the trial judge's finding that there was no negligence on behalf of Plastamasta, despite its non-delegable duty of care, on the basis that it had no say over where the materials were to be unloaded.
Damages were increased on cross-appeal by some $60,000, removing a reduction made by the trial judge for a theoretical earning capacity, which the Court of Appeal did not accept had been established by the evidence.

This case demonstrates the high threshold required to overturn a trial judge's findings of fact and the certainty that specific evidence must have before it can be classified as incontrovertible.

The case also shows the formulaic approach that courts will take in determining a defendant's breach of duty of care under the Civil Liability Act 2002 (NSW). Specifically, the broader the risk of harm is cast, the more likely it is that a defendant will be found to have breached it. Insurers should seek to have the plaintiff describe with specificity the particular risk of harm which is alleged so they can adequately assess whether their insured is likely to be found to have breached its duty of care.