Written by Peter CarterOctober 22, 2013
The Supreme Court has refused labourer damages for back injuries resulting from a stairwell bump that sent him tumbling down as many as 20 steps during a crowded end-of-project spit roast attended by 250 co-workers.
Martin Geyer, was at the renovation-completed AMP building in Circular Quay, Sydney in September 2004. He claimed to have been bumped by a server employed by caterer Barbehire Pty Ltd and that his tumble resulted in serious back injuries.
Martin attended the function at noon but had consumed no alcohol by 3pm – the time until which he was required to stay – when he decided to leave via the stairs.
As he was descending, he saw a man enter the narrow stairwell from the street and make his way up.
In his testimony, Martin described the man as wearing the same uniform as the caterers at the function and carrying a black tub.
“Hang on mate, I will go back up the stairs and give you a free go,” he claims to have said. Martin twisted and flattened against the right side of the stairwell as the server brushed past him on his continued ascent, bumping him on the shoulder with his elbow and causing him to lose his footing and go face first.
He sued his employer Sydney Site Services, in that it ought to have known that the stairs were too narrow for guests and caterers to pass safely going in opposite directions.
He also claimed the caterer had failed to train its employees adequately and provide instructions regarding using the stairwell and what measures to take in the face of someone ascending or descending from the opposite direction.
The employer claim was dismissed on the basis that there were no unusual characteristics of the stairs that would have required a reasonable employer to have taken special measures or issued special warnings to employees about their use.
The claim against the catering company turned on whether or not it was one of their staff with whom Martin had had his encounter on the stairway.
The person had never been identified and it was evident from Martin’s cross examination that his recollection of was “vague and confused” and also affected as a result of a so-called “displacement effect” by what he had subsequently seen when investigating the company via its website.
The trial judge found that there were equally competing possibilities that the bump originated from a co-worker ascending with an alcohol re-supply; catering staff; or “an employee of a local hotel or wine merchant replenishing alcohol for the party”.
The trial judge was of the view that Martin had failed to establish a 50% or greater probability that the unidentified bumper was a member of the caterer’s staff and hence his lawsuit must fail. He nevertheless assessed Martin was having lost 90% of his income earning capacity of more than $750 weekly over 30 years; general damages of $175k and past economic loss at $218k.
The appeal judges agreed with the lower court reasoning that because the wrongdoer could not satisfactorily be identified to the extent of at least 50% probability, as a member of the catering staff, Martin’s claim against Barbehire should be dismissed.
Geyer v Redeland Pty Limited  NSWCA 338 Sydney Beazley P Ward JA Emmett JA 14/10/2013 – view decision