Boehm v Strongback Pty Ltd
[2011] VSC 463
•20 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2010 05340
| PETER BOEHM | Plaintiff |
| v | |
| STRONGBACK PTY LTD | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-13,15 September 2011 | |
DATE OF JUDGMENT: | 20 September 2011 | |
CASE MAY BE CITED AS: | Boehm v Strongback Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 463 | |
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ACCIDENT COMPENSATION – Workplace injury – Negligence – Employee or independent contractor – Control – Breach of statutory duty – Assessment of damages – Pecuniary loss damages – Pain and suffering damages – Occupational Health and Safety (Prevention of Falls) Regulations 2003, Regulations 101, 104 and 204 – Accident Compensation Act 1985, s 134AB.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.H. Mighell SC with Mr D.J.N. Purcell | Maurice Blackburn |
| For the Defendant | Mr P.Y. Rattray QC with Ms B.Y. Knoester | Herbert Geer |
HIS HONOUR:
Introduction
On 8 February 2007, Mr Peter Boehm, the plaintiff, was working at premises in Grieves Street, Fitzroy, when he fell from a ladder and suffered injury (“the accident”). At the time of the accident, the plaintiff was working at the premises pursuant to an agreement whereby Strongback Pty Ltd, the defendant, was paying him $44 per hour.
In this proceeding, the plaintiff claims damages from the defendant for the injuries he alleges he sustained as a result of the accident. The plaintiff’s claim is based on allegations of negligence and breach of statutory duty (specifically, the alleged breach of a statutory duty said by the plaintiff to arise under Regulation 204 of the Occupational Health & Safety (Prevention of Falls) Regulations 2003[1]). As part of his claim, the plaintiff asserts that he was at all relevant times an employee of the defendant. The defendant denies the plaintiff was its employee and contends that the plaintiff was in fact a subcontractor. The defendant also denies that it was negligent or breached any duty of care or statutory duty that it might have owed to the plaintiff. Further, the defendant alleges that there was contributory negligence on the part of the plaintiff.[2]
[1]Whilst the plaintiff’s claim as pleaded also alleged breaches of statutory duty under the Occupational Health & Safety (Manual Handling) Regulations 1999, this part of the claim was abandoned by the plaintiff at trial. Further, whilst the plaintiff’s claim as pleaded also relied upon breaches of statutory duty said to arise under Regulations 201, 202, 206 and 301 of the Occupational Health & Safety (Prevention of Falls) Regulations 2003, allegations that these Regulations gave rise to specific statutory duties were abandoned by the plaintiff in final address.
[2]Whilst the defendant’s defence also pleaded a voluntary assumption of risk defence, this was abandoned by the defendant in final address.
The plaintiff’s claim is governed by s 134AB of the Accident Compensation Act 1985. The plaintiff claims both pain and suffering damages and pecuniary loss damages within the meaning of s 134AB(37).
Thus, the issues in this case may be broadly summarised as follows:
(a)the nature of the relationship between the parties (that is, whether the plaintiff was an employee or independent contractor of the defendant);
(b)the content and standard of any duty of care owed by the defendant to the plaintiff;
(c)whether there was a breach of any duty of care owed by the defendant to the plaintiff;
(d)whether the statutory duty alleged by the plaintiff was in fact owed to him by the defendant;
(e)whether there was a breach by the defendant of any statutory duty owed to the plaintiff;
(f)whether there was any contributory negligence on the part of the plaintiff;
(g)the nature and extent of the plaintiff’s injuries; and
(h)the proper assessment of any pain and suffering and pecuniary loss damages to which the plaintiff might be entitled.
The plaintiff’s background
The plaintiff was born on 24 June 1953 in Germany and came to Australia at the age of two years. He attended Syndal Technical School to the end of Form 4, leaving school at about 15 years of age. He then commenced an apprenticeship as a cabinetmaker. He worked as a cabinetmaker/shopfitter, continuing on with the employer to whom he was apprenticed until he was a little over 20 years of age. He then commenced working as a self-employed domestic carpenter. When he was 25 years of age, he travelled overseas for a year or so.
Upon return to Australia, the plaintiff performed work doing deliveries, before going back to work as a carpenter in approximately 1980/81. Initially, he worked as a subcontractor. He then commenced working for a company called Coulson Construction. He worked for this company on wages, starting at the beginning of 1983. He was employed as a full-time carpenter. He remained in this employment for approximately 16 years.
In 1999, the plaintiff went back to subcontracting work. Principally he worked for a Mr Justin Smallman, who had a business called Bottlebrush Homes. He continued this work until late 2004/early 2005. Whilst doing work for Mr Smallman, the plaintiff also did other work for A.V. Jennings and a couple of other builders that he knew on a casual basis.
In February 2005, the plaintiff commenced work for the defendant (then known as MacQuire Building), a company run by Mr Richard MacQuire.
The relationship between the plaintiff and the defendant
The plaintiff came to work for the defendant because Mr Smallman was unable to provide the plaintiff with sufficient work. Mr Smallman put the plaintiff in contact with Mr MacQuire. The plaintiff met Mr MacQuire in February 2005 at a site in Prahran. The plaintiff described meeting Mr MacQuire “first thing in the morning and then start[ing] straight away”. The discussion between the plaintiff and Mr MacQuire as to the basis upon which the plaintiff would work for Mr MacQuire appears to have been somewhat perfunctory. The plaintiff gave evidence:[3]
“Was there any discussion between the two of you concerning the basis upon which you’d work for him?---Subcontract on the hourly rate.
On the hourly rate?---That’s right.
Was there anything else said that you can recall?---Just – no, not that I can recall. Just to work full-time for him on an hourly rate.”
[3]T26.3 - .9.
The hourly rate discussed was $40 plus GST of $4 – being the same amount that the plaintiff had received when performing work for Mr Smallman.
The plaintiff started work on the job at the site in Prahran and kept working for the defendant until his accident on 8 February 2007. Each week, the plaintiff invoiced the defendant for the hours that he worked. The defendant would then pay the amount of the invoice into the plaintiff’s bank account the following week. Generally, the plaintiff worked 40 hours per week, except for holidays or inclement weather or other occasions when he took time off.
The plaintiff provided his own hand tools. He had a station wagon with a trailer. It had a compressor. The plaintiff also had a six foot (sometimes described as 1.8 metre) A-frame ladder. The plaintiff was not involved in quoting any of the jobs on which he worked. He was not involved in purchasing materials, not involved in dealing with customers and not involved in organising when a job would start and when a job would finish. The plaintiff gave evidence (and it was not disputed by Mr MacQuire), that Mr MacQuire would usually inform him as to where he would be working each day.
At the time the plaintiff performed work for the defendant, the defendant employed an apprentice, Jason Bowen. When things were needed onsite (for example, scaffolds or cranes or the like), it was Mr MacQuire who would organise their delivery.
Whilst performing work for the defendant, the plaintiff did not perform work for anyone else. He said the only carpentry work he did whilst working for the defendant was when he did something at home or helped a friend out on weekends. The usual start time was 7.30am, finishing at 4.00 or 4.30pm and with a designated lunch break at around 12.00pm.
The plaintiff gave evidence that when working on the site, it was Mr MacQuire who would determine what had to be done.[4] Indeed, in cross-examination, Mr MacQuire was asked and answered the following questions:[5]
[4]T29.28.
[5]T172.12 – T173.4.
“Mr MacQuire, he [the plaintiff] was a very experienced carpenter?---Yes.
Been doing it for a long period of time?---Yes.
In fact, with a couple of years’ exception, really all of his working life. And whilst he was very knowledgeable, if you asked him to do something on a site, he would do it?---Yes.
The hierarchy was it was your business and he was the worker for the purpose of it?---Yes.
And in practical terms, that might not have happened a lot because he was so experienced. But the fact was you had control over what he did on a site at any time if you needed to have?---Yes.
And he couldn’t send somebody else to work in his place, for example. You expected him to turn up?---Yes.
And you expected him to turn up at the regular working hours, assuming you had work on at the time?---Yes.
And unless there was some agreement or discussion between the two of you about him not turning up, he was expected to turn up to work every day at 7.30 and work till four o’clock?---Yes, unless he said he wasn’t. Yeah.
Yes, unless he said, ‘Look, I’m crook’?---Yes.
Or, ‘I’m going on family holidays’?---Yeah, yes.
And no doubt he would give you requisite notice for that?---Yes, yes.”
Whilst the plaintiff had his own ABN, he did not carry on business under a business name, he had no signage on his station wagon, he did not advertise for work and he did not work in partnership. On the other hand, the plaintiff took out his own insurances and made his own provision for long service leave. No superannuation or holiday pay was paid by the defendant.
Mr MacQuire gave evidence that, but for the accident, the plaintiff would in all probability have continued to work for him up to the present. The projects the defendant had were not large, but the work was “continual”. In evidence-in-chief, Mr MacQuire said that if the plaintiff had remained with him, he would have given the plaintiff the opportunity to become a project manager. This would have entailed the plaintiff performing extra duties such as material purchasing, dealing with architects, dealing with tradesmen, negotiating, quoting and dealing with clients.
As I have said above, a significant issue in this case is whether the plaintiff was an employee of the defendant or an independent contractor. Much has been written about the differences between employees and independent contractors and how one is to recognise in an individual case whether a person is one or the other. The authorities in this area were recently surveyed by Robson J in Shirreff v Elazac Pty Ltd.[6] Whilst earlier authorities often regarded “control” as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered. Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
[6][2010] VSC 381, [125]-[136].
(a)the degree of control which the former can exercise over the latter;
(b)whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c)whether or not the person engaged can set their own hours of work;
(d)the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e)whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f)whether or not the person engaged employs employees and/or conducts his business in partnership;
(g)whether or not there is a power to delegate (send someone else to perform the work); and
(h)whether or not the person engaged considered the relationship as one of independent contractor.[7]
[7]Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 26 and Shirreff v Elazac Pty Ltd [2010] VSC 381, [125]-[136] and the authorities referred to therein.
Looking at the totality of the relationship between the plaintiff and the defendant, I am well satisfied that the plaintiff was an employee of the defendant. The defendant sought to rely on the fact that the plaintiff was a significantly more experienced carpenter than Mr MacQuire as being a factor pointing to the conclusion that the plaintiff was an independent contractor. Additionally, the defendant relied upon the fact that from time to time the plaintiff’s advice would be sought as to the way in which particular work should be performed. These facts were said to also point to the conclusion that the plaintiff was an independent contractor. Whilst earlier authorities might have supported the proposition that if the person engaged had more technical or specialist skill than the person who engaged him, then the person engaged was more likely to be an independent contractor, more modern authority recognises that it is relatively commonplace to employ employees who have particular technical skills or expertise that are not possessed by those employing them. Further, advice may even be sought from time to time from such specialist employees, by those who employ them, in their area of expertise. The fact that a person engaged to perform work has particular expertise and is a person from whom advice is sought no longer, of itself, provides any great support for a conclusion that that person is an independent contractor.
The plaintiff was essentially employed by the defendant full-time – although he was paid on an hourly basis for the hours he worked. His pay was not determined by his level of output or production. He was not paid by reference to the amount he achieved or material he produced. He was expected to attend full-time from 7.30 in the morning to perform the work necessary. He was directed to the sites at which he was to perform work. He could be directed as to the work to be performed (some of which included work of a cleaning nature[8]). He did not run his own business. He had no power to send somebody else to perform the work he was engaged by the defendant to perform. Whilst he supplied some items of equipment, major items were supplied by the defendant. Additionally, Mr MacQuire’s evidence would suggest that whilst the parties may have described the plaintiff as working as a sub-contractor, he was treated as if he was an employee with (as Mr MacQuire said in evidence) a possibility of promotion within the defendant’s organisation to the position of project manager.
[8]T128.
In my view, the fact that the plaintiff took time off from to time (either to go on an overseas trip or to some appointment) is relatively neutral in this case. The evidence of the plaintiff and Mr MacQuire on this issue does not tell with any great significance one way or the other. Many employees are given time off from time to time (either to go on an overseas trip or to attend appropriate appointments on notice or for some other purpose).
The defendant did not deduct PAYG income tax instalments from the amounts it paid the plaintiff. Further, it did not pay superannuation, holiday pay or long service leave in respect of the plaintiff – these matters (together with public liability insurance and income protection insurance) were taken care of by the plaintiff. Notwithstanding these matters, I have concluded, in light of the circumstances set out in paragraph 20 above, that the plaintiff was an employee of the defendant. The totality of the relationship between the parties mandates that conclusion. Indeed, the evidence of Mr MacQuire (to which I have already referred) mandates that conclusion.
The accident
On 8 February 2007, the plaintiff was working at a site in Grieves Street, Fitzroy. The worksite was relatively small (being described by Mr MacQuire as 2.4 metres x 5 metres in dimension). The work involved renovating part of the house on the site. This work included the removal of a skillion roof.
There was a hot water service attached to one of the walls of the premises in an internal corner (the roof over this corner having been removed). The hot water service had a flue coming out of the top of it. As the roof had been removed, the hot water service was potentially exposed to the elements.
On the day of the accident, Mr MacQuire asked the plaintiff to put a cover over the hot water service. The plaintiff responded, in substance, that it was unlikely to rain. However, Mr MacQuire responded (to use the words of the plaintiff), “The forecast was for a shower overnight, so could I do it”.[9]
[9]T34.5.
Mr MacQuire gave evidence that, “I asked him [the plaintiff] to put a cover – put a bit of corrugated iron, tack it on over the hot water unit to protect it from the weather”.[10] Mr MacQuire said his exact words were, “Put a bit of corrugated iron up there and tack it on”. Mr MacQuire also said that he did not tell the plaintiff how this should be done.
[10]T166.12 - .16.
On the other hand, the plaintiff gave evidence that Mr MacQuire told him how to perform the work, suggesting that the plaintiff take a piece of the old roofing iron and cut a length of it (cutting a hole for the flue) and place it on and fix it onto timbers, themselves to be fixed, by the plaintiff, to the walls of the internal corner.[11]
[11]T38 – 39.
It is not necessary to resolve the factual dispute between the plaintiff and Mr MacQuire as to precisely what was said when Mr MacQuire asked for a cover to be placed on the hot water service. In my view, it is unlikely that there was any detailed discussion as to how the work should be performed. More likely, both men proceeded from a mutually understood position that (in their view) the best way to cover the hot water service was with a piece of roofing iron which could be nailed to timbers affixed to the surrounding walls. Having regard to the experience of both men and their knowledge of each other and carpentry matters, it would be surprising if detailed express directions were given about the matter by Mr MacQuire to the plaintiff. Nevertheless, I accept that both the plaintiff and Mr MacQuire understood the way in which the plaintiff would perform the task requested of him.
The plaintiff gave evidence that he affixed pieces of wood to each wall. The accident occurred whilst the plaintiff was attempting to affix the piece of iron he had cut to the pieces of wood. At the time of the accident, the plaintiff said he was standing on the first step down from the top of a 2.1 metre aluminium A-frame ladder. This ladder was owned and provided by the defendant. The plaintiff said that as he proceeded to put the third nail in, it did not pierce the iron. The nail “fell over and [the plaintiff] proceeded to pick it up again, and at the same time the ladder just flexed and twisted and bucked [the plaintiff] off”.[12] The plaintiff then said that his “feet went up in the air and then [he] flipped back down on [his] back across [floor joists which were sitting on top of an old floor, which floor joists ran parallel to the wall on which the hot water service was attached]”.[13]
[12]T41.
[13]T41 and following.
The plaintiff gave evidence that the ladder was 2.1 metres in height and that the first step down from the ladder was 1.8 metres above the ground. Mr MacQuire (who gave evidence that he measured the ladder) said that the ladder was two metres in height with the first step down being 1.7 metres above the ground. Whilst the ladder was ultimately disposed of by Mr MacQuire (on advice), I have no reason to doubt the measurements he gave in evidence.
The plaintiff gave evidence that the length of iron he cut to cover the hot water system was “about a metre wide by about 700 [millimetres] deep”.[14] No evidence was given to the contrary as to these dimensions, and I have no reason to doubt the plaintiff’s evidence in this regard.
[14]T43.3.
There was some cross-examination of the plaintiff concerning the height at which he was working and the step on the ladder on which he was standing at the time of the accident. Notwithstanding some inconsistencies in the plaintiff’s evidence, I accept the evidence he gave before me that the work he was doing was being done at a height of approximately 2.5 metres above the ground,[15] and the step he was standing on was one step down from the top of the ladder (1.7m above ground). Whilst the defendant tendered two inconsistent histories alleged to have been given by the plaintiff that he was doing work at a height of “approximately 3.5 metres”[16] and “a height of 3.6 metres”,[17] I am satisfied on the whole of the evidence that the height was in fact 2.5 metres. Further, whilst the defendant tendered an answer by the plaintiff to an interrogatory that suggested he was working on either the top step or the first step from the top of the ladder,[18] it is very difficult to imagine that the plaintiff could have in fact been doing the work he described from the top of the ladder. The defendant submitted that the histories and answer to which I have just referred shows that the plaintiff’s evidence is unreliable. There may be some force in this submission. However, when one looks at the whole of the evidence, it is clear that the histories must be wrong (the error being either the plaintiff’s or the person to whom he was speaking), and the answer (insofar as it suggests that the plaintiff worked from the very top of the ladder) must be wrong.
[15]Indeed, Mr MacQuire agreed in evidence that the work required the plaintiff to affix the tin at a height of at least 2.5 metres (T176.23).
[16]Section 9.0 of the report of Mr Lightfoot.
[17]Report of Dr David Weissman dated 19 February 2009.
[18]Plaintiff’s answer to interrogatory 18(e).
The defendant made a similar submission in relation to the recording of a history in Mr Lightfoot’s report that, “On climbing the ladder and standing approximately two steps down from the top he [the plaintiff] took the cut iron sheet and placed it on the batons to cover the hot water service”. Again, one cannot know whether this history was the result of some miscommunication between the plaintiff and Mr Lightfoot, some inconsistency on the part of the plaintiff or some error on the part of Mr Lightfoot. One point that might be made is that one could imagine describing the first step below the top of a ladder as the second step in some circumstances, and this being mistranslated subsequently into a recorded history that the relevant person was “two steps down”. Mr Lightfoot was not called at trial and one can only speculate as to possibilities concerning why the words used to record some histories can be construed so as to appear (or so as to be) inconsistent with evidence actually given at trial. In the end, having seen the plaintiff, I formed the view that, notwithstanding arguable inconsistencies between some histories as recorded and the plaintiff’s evidence at trial (an event which is not unknown in cases of this kind), I accept that the plaintiff was working from the first step down from the top of the ladder. When one looks at the dimensions involved and the probabilities, histories that suggest the plaintiff was working on the very top of the ladder or on a step 2 steps down appear to me to be less likely to be true than the evidence actually given that the plaintiff was working one step down from the top.
In order to put a cover over the hot water service, the plaintiff was required to hammer nails through the iron and into the pieces of wood affixed to the walls, at a height of approximately 2.5 metres. The plaintiff says he was standing one step below the top of the ladder – a height I have found to be 1.7 metres above the ground. The ladder was placed at a 45 degree angle to the corner of the iron furthest away from the internal corner. To perform the work, the plaintiff had to lean over the length of iron – which, as I have said, measured approximately 700 millimetres x 1 metre. The plaintiff gave evidence that, in performing the work, he could not have reached to where he was required to reach if he had stood on a step lower than the step he was standing on. There is no reason to doubt this evidence. Indeed, I accept the plaintiff in relation to this matter. In my view, the likelihood is that the plaintiff stood on the lowest step available to him to do the work he was required to do. Ordinary experience suggests that people do not climb ladders higher than they need to climb in order to reach heights they need to reach (particularly when holding items on a ladder, which ladder would have become more unstable the higher it was climbed). The plaintiff is a man of average height. In my view, it is very likely that he was required to climb the ladder to a height of 1.7 metres (the step down from the top) in order to perform work at 2.5 metres, which involved leaning over a piece of iron measuring approximately 1 metre x 700 millimetres.[19]
[19]See T43.4 - .22.
At various times in his evidence, the plaintiff described the ladder “flexing”, “twisting”, “bucking” and “slipping” at the time of the accident. Some attention was paid to whether the ladder doing any of these things was a cause of the accident (and if so, whether any such flexing, twisting, bucking or slipping was the result of the ladder being defective or “dodgy”). Whilst I can understand the plaintiff describing the ladder going through one of these movements at the time of the accident, in my view, such a description merely represents the perception of someone who has fallen from high up on a ladder in circumstances where, by the time the plaintiff commenced to fall, the ladder would itself have been unstable and moving. I do not accept that the accident was caused by some flexing, twisting, bucking or slipping of the ladder that was independent of the movements the ladder would have gone through once the plaintiff commenced to fall. The more likely scenario is that the plaintiff was on the first step down from the ladder, reaching over the iron in order to perform his task, and the obvious occurred - the ladder became unsteady as a result of the plaintiff’s position and the plaintiff fell (during which the ladder moved).
Witnesses on liability
Before proceeding further, it is necessary to say something about the witnesses who gave evidence relevant to the issue of liability. Those witnesses were the plaintiff, Mr MacQuire and the defendant’s then apprentice, Mr Bowen. I was particularly impressed by the evidence of Mr MacQuire. In my view, his evidence was straightforward and objective. I formed the view that he was doing his best to give a completely accurate account of matters. I was similarly impressed with the evidence of Mr Bowen.
I was slightly less impressed with the evidence of the plaintiff. There were occasions when I thought the plaintiff was not taking the same care to be accurate as was taken by Mr MacQuire. That said, I do not believe the plaintiff deliberately set out to mislead me. Whilst much of what the plaintiff said in evidence accorded with the probabilities, there were occasions when he gave answers that had an air of improbability about them. Specifically, I was unimpressed by the plaintiff’s evidence as to problems he claimed he experienced with the ladder prior to the accident and reports he claimed to have made to Mr MacQuire concerning the ladder. I turn now to those matters.
Evidence concerning prior complaints and difficulties with the ladder
In cross-examination, the plaintiff, for the first time, gave evidence that he had experienced difficulties with the ladder before the accident, and that he had reported these difficulties to Mr MacQuire. Additionally, the plaintiff claimed to have reported a difficulty with the ladder which he said had been experienced by Mr Bowen. It is sufficient to say that both Mr MacQuire and Mr Bowen gave evidence inconsistent with the plaintiff’s evidence on this issue. Further, the evidence given by the plaintiff in cross-examination was not the subject of any pleading by the plaintiff, was not opened at the commencement of the plaintiff’s case and was not the subject of any examination-in-chief. In my view, the evidence of Mr MacQuire and Mr Bowen on these issues was convincing. Again, whilst I do not think the plaintiff attempted to deliberately mislead me, I reject his evidence as to prior difficulties, reports and complaints with respect to the ladder. For completeness, I should note that the defendant tendered the plaintiff’s answer to interrogatory 2(f) in which the plaintiff denied making any report or complaint to the defendant concerning the ladder prior to the accident.
Negligence: principles to be applied
I have already found that the plaintiff was an employee of the defendant. In such circumstances, it is trite to say that the defendant owed the plaintiff a duty to take reasonable care to avoid exposing its employees to risks of injuries which were reasonably foreseeable. This duty has a number of facets to it, involving a duty to take reasonable care to provide a safe and proper system of work, a duty to take reasonable care to provide safe and adequate plant and equipment, and a duty to take reasonable care to provide a safe place of work.
The duty of care owed by an employer to an employee was described by the High Court in Czatyrko v Edith Cowan University.[20] The Court said:[21]
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a risk of an injury to an employee in the performance of a task in the workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.”[22]
[20](2005) 79 ALJR 839.
[21]Ibid at 842 [12].
[22]Footnotes omitted.
In McLean v Tedman,[23] Mason, Wilson, Brennan and Dawson JJ said:[24]
“The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th edition (1983), pp 480-481 and in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”
[23](1984) 155 CLR 306.
[24]Ibid at 313.
More generally, Mason J said in Wyong Shire Council v Shirt:[25]
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
[25](1980) 146 CLR 40, 47-48.
Was there negligence on the part of the defendant which was a cause of the accident?
In my view, the defendant breached the duty of care it owed the plaintiff as its employee. As part of the plaintiff’s work duties on 8 February 2007, the plaintiff was required to affix a length of iron above a hot water service and at a height of 2.5 metres. The plaintiff was not provided with either appropriate assistance or appropriate equipment to perform this task. Insofar as it might have been appropriate to use a ladder, the defendant did not provide anyone to hold or steady the ladder. Requiring the plaintiff to work at such a height that the work could only be done from the first step down from the top of the ladder the plaintiff used (and without providing someone to hold or steady the ladder) was negligent.
The plaintiff was cross-examined as to why he did not use his own ladder. In my view, there was nothing in this point. It is to be remembered that the plaintiff’s own ladder was shorter than the ladder he used. In all probability, if the plaintiff had attempted to use his own ladder, he would have had to have stood on the very top of it to perform the work he was required to perform. This would have been even more unsafe.
The plaintiff gave evidence-in-chief that the defendant owned portable scaffolding known as Quick Stage Scaffolding. However, the plaintiff also said that he did not recall the Quick Stage Scaffolding being onsite at the time.[26] In cross-examination, the plaintiff agreed that it was possible that there was some scaffolding onsite – although he again said that he did not recall it. He was asked and answered the following questions:[27]
[26]T127.5.
[27]T129.25 – 130.21.
“Did you think that there was anything else available on the site at that time that could have been used that was any safer or would have given you even better access?---No, because that's why I used that ladder. I don’t recall any scaffolding being there. If it was there, it might have been taken away. I don’t know. I can’t remember.
If it had have been there?---A very small site.
Yes, if it had have been there, would you have used it, or would you have used a ladder?---If I had have had someone else there, I would have probably used it, yes, to set it up.
Did you need another person to set it up?---Yeah, well, if Jason had have been there, it would have been handy.
Is that because it can't be set up by one person?---Well, it’s, yeah, because they’re usually long sections. It can be done by one person but it’s very awkward.
And do you think it was there, or do you know whether it was there at the time?---No, I don’t recall it.
Do you have any recollection of it being used on the site?---I don’t recall having it there. That’s what I mean. I don’t recall it. I mean, it’s a narrow site and I remember cleaning up the rubbish and taking that out every day because it was so small. But I – I remember there was a pile of material, timber there, and a pile of rubbish. But I don’t remember – don’t recall the scaffold.”
Mr MacQuire was asked about the Quick Stage Scaffolding and said that “There were pieces onsite”.[28] He also said, “We would have had – because it’s so small, there was only a small tower that we did basically have onsite”. Mr MacQuire was then asked and answered the following questions:[29]
“Would the scaffold have fitted into that corner where the hot water service was?---If you wanted it to, yes.
And would that have been a major job?---For the time relative to put the work that was to be done, you’d steer to using a ladder.
Did you see the ladder - a ladder as a safe way of doing the job?---Yes.
So you wouldn’t be critical of the plaintiff for not erecting the scaffold and doing - - -?---No. No. No, not at all.”
[28]T165.2.
[29]T165.7 - .14.
In my view, the evidence discloses that the plaintiff was expected by his employer to use a ladder to perform the work he needed to perform to cover the hot water service. Further, I am not persuaded that such scaffolding as may have been onsite would have been sufficient to permit the plaintiff to gain access to the areas he needed to gain access to in order to cover the hot water service. At the time of the accident, the plaintiff was doing no more or less than was contemplated by the defendant in order to perform the work that was required of him. That is not to say that the defendant contemplated that the plaintiff would stand on the first step down from the top of the ladder - merely that it was contemplated that the plaintiff would use the ladder.
As I have said above, I do not accept the plaintiff’s evidence as to difficulties with the ladder before the accident or reports or complaints of any such difficulties. However, as is apparent from what I have already said, notwithstanding that there had been no problems with the ladder before the accident, it was negligent of the defendant to require the plaintiff to perform work which necessitated standing on the first step down of the ladder without providing assistance to hold or steady the ladder. Standing on the first step down from the top of the ladder, whilst in part leaning over the iron attempting to affix it to the wood that had been affixed to the walls, carried with it a significant and obvious risk that the plaintiff might fall and/or that the ladder might become unstable or unsteady and cause the plaintiff to fall. That is what in fact occurred. The defendant’s negligence was a cause of the accident.
The breach of statutory duty claim
Regulation 101 of the Occupational Health & Safety (Prevention of Falls) Regulations 2003 (“the Regulations”) provides that the objective of the Regulations “is to prevent incidents at workplaces involving falls of more than two metres and to prevent or reduce injury resulting from those falls”. “Fall” is defined in Regulation 104 to mean “a person’s involuntary fall of more than two metres”. “Fall hazard” is defined to mean “potential to fall”. Regulation 107 provides that, for the purposes of the Regulations,[30] “employee” includes “an independent contractor engaged by an employer …”.
[30]Except Regulation 303.
Regulation 201 requires an employer to ensure that any task that an employee is required to undertake at a workplace that involves a fall hazard is identified. Regulation 202 requires an employer to assess the risk of a fall in respect of tasks identified under Regulation 201.
Regulation 204 provides:
“If an employee is required to undertake a task that involves a fall hazard at a workplace, the employer must ensure that the risk of a fall is –
(a) eliminated; or
(b) if it is not practicable to eliminate the risk, reduced so far as is practicable.”
The defendant contended that, as the plaintiff was standing on a step 1.7 metres above the ground, the Regulations had no application in this case. As was said by Nettle JA,[31] in R v ACR Roofing Pty Ltd:[32]
“It is a recognised principle of statutory construction that legislation which is concerned with furthering industrial safety is to be construed so as to give the fullest relief which the fair meaning of its language will allow.”
[31]With whom Ormiston and Vincent JJA agreed.
[32](2004) 11 VR 187, [43].
The same can be said of Regulations of the kind here under consideration.[33] In my view, Regulation 204 and the definition of “fall” in Regulation 104 should be construed so as to give the fullest relief which the fair meaning of the language used will allow. Whilst the Regulations should be understood as requiring an employer to give some focus to the height of structures or places from where there might be falls, that focus should not give rise to a construction that would defeat the objective of ensuring workplace safety.
[33]Papadopoulos v MC Labour & Anor (Ruling No. 1) [2009] VSC 175.
The words “fall of more than two metres” are ordinary English words. They should not be construed in some narrow and pedantic sense. If, on the whole of the evidence, it can be fairly said that a person fell more than two metres, then such a fall is a fall of the kind covered by the Regulations.
In this case, affixing the iron above the hot water service at a height of 2.5 metres involved a “fall hazard” within the meaning of the Regulations. That is, there was a potential to fall more than two metres. Regulation 204 required the defendant to ensure that the risk of such a fall was eliminated or, if it was not practicable to eliminate the risk, then the employer was required to ensure that the risk was reduced so far as was practicable. The defendant did not eliminate the risk of such a fall. Further, there was no evidence that it was not practicable to eliminate this risk. In the circumstances, the defendant breached the statutory duty it owed the plaintiff as imposed by Regulation 204.[34] This breach was a cause of the accident. Had the risk of a fall of more than two metres been eliminated (either by the use of appropriate scaffolding or the provision of assistance), the accident would not have occurred. I turn now to consider the defendant’s allegation of contributory negligence.
[34]I should note for the sake of completeness that this conclusion would apply even if I had concluded that the plaintiff was an independent contractor (See Regulation 107).
Contributory negligence
The principles relevant to a finding of contributory negligence have been set out recently by the Court of Appeal in the decisions of Mayhew v Lewington’s Transport Pty Ltd[35] and Fassbender v Bohlmann.[36] They do not need to be repeated here. As has been repeatedly said,[37] the issue of contributory negligence has to be approached on the footing that the employer has failed to discharge its obligations to take reasonable care, and in considering whether there is contributory negligence on the part of a worker, the circumstances and conditions in which he or she had to do his or her work have to be taken into account.
[35][2010] VSCA 202.
[36][2010] VSCA 204.
[37]See for example Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, 493.
The defendant put its case in relation to contributory negligence against the plaintiff on a number of bases. These included:
(a)suggesting that the plaintiff could have used his own ladder;
(b)suggesting that the plaintiff could have used the Quick Stage Scaffolding that was onsite;
(c)alleging that the plaintiff climbed the ladder to (and performed the work from) a rung that the plaintiff knew or ought to have known was too high on the ladder;
(d)contending that the plaintiff should not have performed the work from the ladder in the manner he performed it, having previously identified the ladder as defective; and
(e)contending that the plaintiff should have asked or telephoned for assistance to perform the work (if assistance was needed).
The suggestion that the plaintiff was guilty of contributory negligence for failing to use his own ladder must be rejected. The plaintiff’s own ladder was shorter than the ladder he used. Consistent with my finding that the plaintiff was required to work from 1.7 metres to be able to lean over the length of iron so as to be able to hammer the nails through the iron into the wood affixed to the walls, the use by the plaintiff of a shorter ladder would have placed him in even more danger than he was in when using the defendant’s ladder.
So far as the Quick Stage Scaffolding is concerned, the evidence does not enable me to be satisfied as a probability that there was sufficient scaffolding on the site to enable the plaintiff to erect scaffolding which would have permitted him to do the work any more safely than he did by using the ladder. Mr MacQuire’s evidence was only that there were pieces of scaffolding onsite. On the day, no-one contemplated the use of any scaffolding. Indeed, the plaintiff does not remember scaffolding being present. Further, Mr MacQuire was not critical of the plaintiff for not using such scaffolding as might have been present on site at the time. In my view, the evidence is far too uncertain to make a finding that not only was there sufficient scaffolding present, but that the plaintiff was guilty of contributory negligence in failing to use it.
Some considerable part of the evidence in this case was taken up with exploring what the plaintiff knew or ought to have known about the dangers associated with standing above a step two steps down from the top of a ladder. It is sufficient to say that, having regard to the experience of the plaintiff in carpentry matters, I am satisfied that he was well aware at the time of the accident of the dangers of climbing a ladder to a point where one was performing work from a step above the step two down from the top. The plaintiff was an experienced carpenter. He was more experienced than Mr MacQuire. In fact, the plaintiff was the most experienced person within the defendant’s organization. In my view, it should have been (and probably was) apparent to him from the outset that what he was being asked to do involved an element of risk unless there was someone present to assist him and hold or stabilise the ladder. Whilst the issue of contributory negligence has to be approached on the footing that the defendant failed to discharge its obligations to take reasonable care of the plaintiff, the circumstances of this case lead me to conclude that the plaintiff (a person with considerable experience) should, in the exercise of reasonable care for his own safety, have either sought assistance at the time he was asked to put a cover on the hot water service, or contacted Mr MacQuire and sought assistance when he realised he would have to perform the task he was required to perform from the rung one step down from the top of the ladder.
So far as the allegation made by the defendant that there was contributory negligence because the plaintiff was aware before the accident that the ladder was “dodgy” is concerned, I reject this submission. For the reasons I have already given, I am of the view there is no good evidence that the ladder was in any way defective or “dodgy” before the accident. That said, for the reasons given above, the plaintiff was, in my view, guilty of contributory negligence, being a well experienced carpenter who was more than capable of asking for assistance to perform a task which, at some time prior to the accident, he must have known would involve him in performing work from an unsafe position on the ladder unless he was provided with appropriate assistance. Further, having seen both the plaintiff and Mr MacQuire give evidence, I have little doubt that the plaintiff well knew he could seek assistance from Mr MacQuire. Further, I am satisfied that if the plaintiff had sought such assistance, Mr MacQuire would have either arranged assistance or not required the plaintiff to perform the task requested of him until assistance was provided.
The present case is to be distinguished from those cases which have held that where the alleged contributory negligence consists of doing that which the employer’s system of work requires, there is no room for a finding of contributory negligence.[38] In many such cases it would be entirely unreasonable to expect the employee to cavil with his or her employer about the system of work. This would be even more so in a case where the task being performed was one that was constantly required to be performed by relevant employees. However, the position here is different. The task the plaintiff was required to perform was a one-off task. The relationship between the parties permitted the plaintiff to express his views about the way particular activities might be performed. In the circumstances, reasonable care for his own safety required the plaintiff to at least raise any concern he might have had about risks associated with the task he was asked to perform.
[38]Kulczycki v Metalex Pty Ltd [1995] 2 VR 377 at 409.
In his final address, Senior Counsel for the defendant submitted that an appropriate allowance for contributory negligence was 30%. This submission correctly reflects the fact that, even on the case for contributory negligence advanced by the defendant, the defendant’s departure from the standard required of it and the causal potency of the defendant’s conduct respectively were both greater than the plaintiff’s departure from what was reasonably expected of him and the causal potency of his conduct. However, in my view, bearing both of these matters in mind, the appropriate allowance for the contributory negligence I have found is, in the circumstances of this case and in light of the relationship between the parties, 15%.
The plaintiff’s injuries
As a result of the accident, the plaintiff suffered serious spinal injuries affecting his cervical, thoracic and lumbar spines. These included a disc prolapse at C4/5, a fracture at T6 and a transverse process fracture at L1 and L2. The injury to the plaintiff’s thoracic spine has required treatment involving injections into the spine in August and September 2007. Additionally, the plaintiff suffered an injury to his right shoulder, necessitating treatment by way of a cortisone injection in February 2008 and surgery in April 2008.
As a result of his injuries, the plaintiff has also developed an impairment to his eyesight, including the development of blurred vision; a urinary impairment; abdominal bloating; impaired sexual function; constipation; a major depressive illness; chronic pain; headaches and facial numbness. There is no dispute that all of these conditions, which are documented in the medical reports tendered in evidence, are the result of the accident. To put it in the words of the plaintiff’s GP, Dr Reid:
“The injuries of the spinal fractures (sic) and subsequent degeneration of the spine, the right shoulder injury, musculoligamentous neck and entire back injuries, and then later the development of depression, chronic constipation, … bladder and visual problems, are all directly attributable to the fall from the ladder whilst at work … and would never have occurred otherwise.”
As a result of his injuries, the plaintiff has had extensive treatment, which treatment has included the prescription of multiple medications, including Endone, Flomaxtra, Oxycontin, Valium and Zoloft. He has also had two ketamine infusions. Notwithstanding all this treatment, the plaintiff is never free of pain. When asked to describe his pain levels, the plaintiff said that at times it was ten out of ten.
Following the accident, the plaintiff was off work for a time. He attempted a return to work between March and May 2007 on a very limited part-time basis. Since then, the plaintiff has not worked. At trial, there was no dispute between the parties that (save for the attempted returned to work) the plaintiff has been and will remain permanently unfit for any form of employment as a result of the injuries he sustained in the accident. In the words of Dr Clayton Thomas:
“Your client has no work capacity. Even prior to his recent admission for renal impairment, he presented with marked degree of incapacity. He is not able to return to any form of sustained activity. He is not able to return to work as a carpenter, shopfitter or the like. He is not able to perform any physical work of any variety. He presents with no work capacity. The nature of his incapacity is due to the organic impairment that has arisen. This is not a case in which psychological factors are significantly contributing to (sic).
The prognosis is poor. The prognosis was poor from the outset. He has a marked degree of pain and disability, the lifelong consequence of the injury.
He needs to be considered totally and permanently incapacitated with no prospect of vocational rehabilitation to be successful.”
Pecuniary loss damages
During their final addresses, the parties submitted detailed calculations in relation to pecuniary loss damages. In respect of past pecuniary loss damages, each party submitted two calculations described as “scenario one” and “scenario two”. Each scenario contained an agreed amount for Fox v Wood damages and a carve-out of 13 weeks for a period of incapacity caused by the plaintiff’s unrelated renal condition (referred to by Dr Clayton Thomas in the extract of his report set out above).
The plaintiff’s scenario one calculation totalled $281,318. His scenario two calculations totalled $346,180. The defendant’s scenario one calculation totalled $258,756. Its scenario two calculation totalled $284,090. The differences between the parties and the scenarios relate to the appropriate hourly rate upon which the calculation should be based (this depends in part on when or if the plaintiff might have been promoted to project manager), the calculation of expenses and the treatment of GST.
The plaintiff’s tax returns prior to the accident included the GST as part of his gross income – rather than simply recording amounts earned net of GST (with the GST to be remitted to the Commissioner of Taxation less any relevant GST paid by the plaintiff). As a result of this, the plaintiff submitted that even if there was to be no increase in the hourly rate from the day of the accident, the plaintiff’s pecuniary loss should be calculated on a base of $44 per hour. The defendant, on the other hand, submitted that the base should be $40 per hour on the assumption that the GST should have been (and must now be) dealt with appropriately. There is force in the defendant’s submission. However, with the uncertainty as to whether the plaintiff would have been promoted (either at any particular time or at all) and whether he would have commenced to receive pay at some rate greater than $44 per hour at some time in the past, one needs to ensure that one does not take too narrow or pedantic an approach when considering all the factors necessary to arrive at a proper figure. In any event, notwithstanding the defendant’s submission, its scenario calculations included the GST.
The defendant’s scenario two calculation is based upon an hourly rate of $49.50. In my view, this fairly reflects the evidence of what the plaintiff would probably have earned had he not been injured in the accident – save that I do not think the evidence justifies a conclusion that the plaintiff would have received the pay rise this calculation reflects immediately after the day of the accident. Whilst the amount allowed for expenses in the defendant’s scenario two calculation is probably a little high, in my view, this is offset by the inclusion of the GST in the calculation. The plaintiff’s scenario two calculation is based upon a rate of $55 per hour. This calculation assumes that the plaintiff would have been paid $55 an hour from the day of the accident. This does not accord with the facts as I have found them. Further, the plaintiff’s scenario two calculation[39] is, on the evidence, a little conservative in its allowance for expenses. In my view, the plaintiff’s past pecuniary loss damages assess in accordance with the defendant’s scenario two calculation, with a small reduction to reflect that the plaintiff would have remained on $44 per hour for some period after the accident. In the circumstances, I assess the plaintiff’s past pecuniary loss damages at $275,000. I turn now to consider pecuniary loss damages in relation to the future.
[39]Like the plaintiff’s scenario one calculation.
The first issue to be determined is the likely age to which the plaintiff would have worked. The plaintiff gave evidence of his financial circumstances in support of the proposition that he would have worked past what some might regard as the normal retiring age for a carpenter or project manager. In the end, I was persuaded that, because of his financial circumstances (and given his good work history), but for the accident the plaintiff would in all probability have worked until the age of 67 years.
In my view, the future should be calculated on the basis of an hourly rate of $50 plus GST. Like the calculation for past pecuniary loss, this calculation needs to take account of the fact that there will be unpaid holidays each year. In relation to holidays, the parties agreed the plaintiff took an average of six weeks holiday per annum.
The agreed multiplier to age 67 is 365.5. The net weekly amount calculated in accordance with what I have said above is $950. Undiscounted for vicissitudes, the amount for future pecuniary loss is $347,225. The defendant invited me to discount this figure by 20% for the vicissitudes – the vicissitudes in this case including the plaintiff’s unrelated renal condition which, in the past, incapacitated him for a period of 13 weeks. On the other hand, the plaintiff submitted that the appropriate discount for vicissitudes in the future is 10%. The tenor of the evidence given by the plaintiff’s treating renal physician, Dr Wood, was to the effect that if the plaintiff continued to be appropriately monitored, he would not expect the plaintiff’s condition to be productive of further significant disability. Indeed, Dr Wood said that if the plaintiff maintained his current level of kidney function, he would not expect the plaintiff to have any symptoms. In my view, the appropriate discount for vicissitudes is 10%. In reaching this figure, I have included the positive vicissitude that the plaintiff might work beyond the age of 67.[40] Accordingly, I assess the plaintiff’s future pecuniary loss damages at $312,502 – making a total for pecuniary loss damages of $587,502.
[40]The multiplier to age 67 is, as I have already said, 365.5 – whereas the multiplier to age 70 is 450.5.
Pain and suffering damages.
I have already described the plaintiff’s injuries. His injuries have had very serious consequences for all aspects of the plaintiff’s life. They will continue to do so. Further, the plaintiff’s pain levels have been severe. They are likely to continue to be severe. An appropriate allowance for pain and suffering and loss of enjoyment of life in this case is $350,000.
Conclusion
For the reasons given above, the plaintiff has established that the injuries he sustained in the accident on 8 February 2007 were caused by the negligence of the defendant and a breach of Regulation 204 of the Occupational Health & Safety (Prevention of Falls) Regulations 2003. However, the defendant has established that there was contributory negligence on the part of the plaintiff, which contributory negligence I have assessed at 15%. The plaintiff’s damages (unreduced for contributory negligence and for any reductions required by s 134AB(25) of the Accident Compensation Act) assess as follows:
(a)pecuniary loss damages $587,502
(b)pain and suffering damages $350,000
I will hear counsel as to the appropriate form of orders, interest and costs.
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