"Although, the defendant did not make any submissions about the appropriateness of the recommendations made by Mr Dohrmann, it nonetheless is incumbent upon me to examine whether they are practical, available and sensible as alternatives to the access the plaintiff was provided. I think they are in all respects."

Extracts from Judge Misso's judgement in relation to evidence provided by expert witness engineer Mr Tom Dohrmann.

Paragraph 20: The plaintiff tendered the report of Mr Tom Dohrmann, engineer, of Dohrmann Consulting dated 29 July 2020 with some redactions.5 The report contains a number of photographs which are a better illustration of the excavator and the drawbar and dog trailer...

Paragraph 160: After considering all of the evidence on liability, and before turning to the evidence of Mr Dohrmann, I think it is probable that the plaintiff had the practice of mounting the drawbar, walking across it and onto at least the first rung on the front of the dog trailer consistent with the description he gave when describing the route he took by reference to exhibit A. I also think it is probable that when he dismounted the drawbar, that he dismounted the rung, turned and then stepped onto the triangular steel bar marked “D” in exhibit A before descending to ground level.

Paragraph 183: Mr Dohrmann adopted his report which contained the basis upon which the plaintiff submitted that the defendant was negligent in providing unsafe plant and equipment.132 In the course of his evidence-in-chief, he identified the particular parts of his report in which he expressed an opinion that the setup of the drawbar and the rungs on the front of the dog trailer were deficient.133

Paragraph 184: The defendant did not challenge the evidence which Mr Dohrmann gave under examination-in-chief. What challenge there was to his evidence went rather more to how the excavator operator would go about loading the tip truck and the dog trailer.

Paragraph 185: I will, therefore, briefly summarise the points made by Mr Dohrmann in his report. Mr Dohrmann described the means the plaintiff had available to him to step down from the first rung on the front of the dog trailer, and then onto the drawbar in paragraph 7 of his report, and observed that it was the lack of a proper platform across the drawbar which was the primary cause of the incident (paragraph 7.7). He then described the predicament facing the plaintiff as he dismounted from the rung:

“7.8 Access to and from the bottom base plate was difficult, requiring negotiation of the aforementioned narrow beams. As he climbed down the rungs, Mr Talent was faced with the risky decision of either jumping sideways from the base plate at a height above 1 metre (and needing to clear the drawbar assembly) or stepping backwards and down to the drawbar beam.”134

Paragraph 186: In relation to the plaintiff’s movements after he stepped onto the triangular bar, he then made the following observation:

“7.11 To get to the ground, Mr Talent needed to balance his muddy boots on this beam and turn his body to step to the next beam, a spare wheel attachment point which was missing its wheel, before he could step down off the drawbar assembly. His alternatives here were to step backwards to the spare wheel attachment beam or jump from the drawbar beam, both of which were likely to be higher risk than turning his body to step towards the spare wheel attachment beam.”135

Paragraph 187: Mr Dohrmann then referred to the twisting motion that the plaintiff undertook with his left foot as he turned around, noting that the twisting action increased the risk of a slip as it changed his weight distribution and increased the likelihood of breaking any static friction which may have existed with his feet on the triangular bar (paragraph 7.14 and preceding).

Paragraph 188: Mr Dohrmann referred to a Standard known as AS 1657 which refers to means of access in circumstances similar to what the plaintiff was doing to which the Standard had application. It was on the basis of the instructions he obtained from the plaintiff, a consideration of a number of enclosures he was provided and a consideration of the relevant Standard, that he considered the failure to provide safe plant and equipment could have been remedied by any of the following:

• By providing a complete and proper means of access to the trailer which complied to AS 1657. This solution may have comprised a combination of steps, ladders, platforms and handrails. While there would be a cost associated with this, it appears that local fabrication expertise was available, such as the original manufacturers of the trailer.
• By relocating the rungs to the side of the trailer (similar to the one 134 Mr Dohrmann’s reference to the “base plate” is a reference to point C in exhibit A, and his reference to “narrow beams” is a reference to points E and D in the same exhibit 135 Mr Dohrmann’s reference to the “beam” is again a reference to Point D in exhibit A and his reference to the “spare wheel attachment Point” is a reference to Point E in the same exhibit on the truck tray installed after the incident). This would make extension of the access all the way to the ground easier and would have removed the necessity for an intermediate platform, such as over the drawbar area.
• By providing a portable extension ladder which Mr Talent could have erected on the side of the trailer and safely accessed from the ground. This may have cost a few hundred dollars and could have been stored in the trailer.
• By positioning the excavator on a mound of soil next to the trailer, such that the excavator was sufficiently higher than the trailer for Mr Patterson to see into the trailer from the excavator’s seat and eliminating the need for a spotter.

Paragraph 189: Mr Dohrmann conceded that using the bucket to flatten down the peak that he would make in the course of loading soil into the tip truck and the dog trailer was a way of undertaking the loading.137

Paragraph 190: After hearing all of the evidence of the liability witnesses and viewing a large number of photographs, it is clear to me that mounting the drawbar was a risky exercise. It required the plaintiff to firstly mount the drawbar and maintain his balance, and then traverse at least point D shown in exhibit A and then point C. It was only somewhere between traversing those points that he had a handhold to steady himself and to maintain his balance and that was either of the rungs on the front of the dog trailer, and probably the rung being point A.

Paragraph 191: The plaintiff was faced with the same risky exercise in dismounting the drawbar. At some point, and probably after he placed both of his feet on the triangular bar, he had no handhold, and to use Mr Dohrmann’s language, an absence of three points of contact to maintain his balance and to undertake the dismounting safely.

Paragraph 192: Although, the defendant did not make any submissions about the appropriateness of the recommendations made by Mr Dohrmann, it nonetheless is incumbent upon me to examine whether they are practical, available and sensible as alternatives to the access the plaintiff was provided. I think they are in all respects. The most sensible alternative would have been for the defendant to have provided a platform at point D rather than a triangular bar, or a portable extension ladder or to have fixed the rungs to the side of the dog trailer as shown in exhibit Z.

Paragraph 193: After considering all of the liability evidence, I have reached the conclusion that the defendant provided the plaintiff with an unsafe means of access to the front of the dog trailer via the drawbar which I conclude amounts to negligence on its part which was a cause of the plaintiff’s injuries.

Full court report can be accessed via the Australasian Legal Institute - Talent v Patterson’s Earthmoving Pty Ltd.