Brekalo v Sommerauer
[2017] ACTSC 29
•10 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brekalo v Sommerauer |
Citation: | [2017] ACTSC 29 |
Hearing Date: | 8 February 2017 |
DecisionDate: | 10 February 2017 |
Before: | Ashford AJ |
Decision: | See [ 35 ] |
Catchwords: | WORKERS COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES – injury – persons liable to pay compensation – assessment by agreement – rights and liabilities between employer and third persons. |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 21 |
Cases Cited: | Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 Sydney Water Corporation v Abramovic [2007] NSWCA 248; (2007) 5 DDCR 570 |
Parties: | Glenn Sommerauer (Defendant) Huon Contractors Pty Ltd ((Second) Third Party) |
Representation: | Counsel Mr Lloyd (Defendant) Mr Muller ((Second) Third Party) |
| Solicitors Hicksons (Defendant) Moray and Agnew ((Second) Third Party) | |
File Number: | SC 31 of 2015 |
Ashford AJ:
The plaintiff sued the defendant seeking damages arising from a workplace accident which occurred on 14 May 2012. The principal action settled in the sum of $830,000 and costs, which were agreed at $95,000. The first third party has also settled its action and it appears the agreement is that it will contribute 20 per cent of the defendant's liability to the plaintiff. The issue therefore remaining is the defendant's claim against the second third party for indemnity or contribution.
The matters in issue are said to be:
a) whether the defendant is a tortfeasor liable to the plaintiff;
b) if so, was a duty of care owed by the second third party to the plaintiff;
c) if so, was there a breach of duty by the second third party which was causative of loss to the plaintiff; and
d) if so, the apportionment of liability between the defendant and the second third party.
I am advised by counsel for the defendant that there is agreement the settlement is reasonable and that the defendant's actions on the day of injury were negligent in the operation of the machine, but it is submitted that the second third party (whom I shall refer to as “Huon”) owed a duty of care to the plaintiff and thus has a liability to the plaintiff. It is submitted there was a breach of a duty of care in that there was a failure by Huon to ensure site safety regulations were observed by the plaintiff in respect of any approach towards heavy machinery and entry to the exclusion zone and the site rules.
Glenn Sommerauer, the defendant, gave evidence. He freely admitted his recollection of events on 14 May 2012 was not as good now as it was at the time surrounding that injury. Prior to that date he had approached Huon seeking employment. He was a machine operator of an eight tonne Volvo excavator.
He entered into a subcontract arrangement with Huon some eight months prior to the accident working on a subdivision development. He started work at 7 am, with smoko at 9.00 to 9.30 am, lunch at around 1 pm and finished work at about 5 pm. He thought there were around 30 people on site, and to his knowledge around half of those men were subcontractors.
Each day he said the Huon foreman would allocate jobs to him and some days these instructions would change during the course of the day. He identified Vlado as being the foreman at Huon and he was the person who gave him those directions and instructions.
Mr Sommerauer said he was aware of the safety protocols which had to be followed and that he had undergone an induction process. He identified documents, which are marked exhibit A, being the site induction register, work methods, statements and the like signed by him relevant to the work site. He said he was well aware of the protocol that there was a requirement no person was to enter an exclusion zone when plant was operating without making eye contact with the operator and all plant was to have flashing lights and reversing sirens.
He was aware of a rule that no mobile phones were to be used on site unless specific permission had been given to use same in an emergency, and he also said that Huon would ring him from time to time if he needed to be given instructions, but he had not been give permission otherwise to use the phone on site.
On 14 May 2012, Mr Sommerauer was at work on site and driving his excavator. It appears his phone rang and he answered the call. It was apparently his daughter, who had rung him to tell him that her partner had died the previous night. This was clearly a disturbing call and distressing. The phone was in his pocket. However, he was wearing earphones and he conducted a conversation with her for some minutes.
At that time, he had been performing backfilling work. He said the bucket on the excavator was full of gravel, the blade of the machine which stabilises the machine was on his left side and he began to lower the blade. He became aware of the door to the machine on his left side opening and Mr Brekalo suddenly appeared. He said Mr Brekalo was leaning over the moving blade.
Mr Sommerauer said he did not recall seeing Mr Brekalo until the door opened. It appears the blade lowered onto Mr Brekalo's foot, causing serious injury. Mr Sommerauer did not believe there had been any eye contact with Mr Brekalo prior to the door opening. He thought Mr Brekalo had started to speak to him as he opened the door, but he did not recall having made any response. He could not recall if he had been wearing sunglasses that day. Mr Sommerauer immediately raised the blade by means of a control on his right side. Taking his hand off the control immediately stops the operation of the blade. On his left side there is a lever which can be raised to shut down the machine's operation.
Tony Brekalo, the Plaintiff, also gave evidence. He was an employee of Kuna Contractors Pty Ltd, the first third party, and he had been working on that building site for some six months. He thought Kuna had three employees on the site, but all instructions to him on site came from Huon not from his employer. He said he had undergone an induction process conducted by Huon in respect of work methods, safety procedures and the like. Part of that induction included instruction on how to approach the plant which was being operated, noting an instruction not to enter an exclusion zone without first making eye contact with the operator.
On 14 May 2012, he was on site. He said he needed to speak to Mr Sommerauer to suggest that the gravel was distributed in a more convenient way for those who were shovelling in order to save himself some time and effort. He said the machine was idling. He walked towards the machine, stood on a manhole and raised his arm to attract attention. He said Mr Sommerauer gave him a “reverse nod” and thus he was of the belief he had made eye contact.
He walked towards the machine. He said Mr Sommerauer was wearing chrome aviator sunglasses and he could not see Mr Sommerauer’s eyes through them. He went to the door of the machine. He placed one foot on the blade and opened the door and spoke several sentences to Mr Sommerauer but received no response. Mr Brekalo then felt a burning sensation in his left foot and he screamed. Mr Sommerauer immediately lifted the blade. Prior to that time he had not seen it moving. He said Mr Sommerauer had plugs in his ears.
Evidence was given by Phillip Martin, consulting engineer. His report of 22 December 2016 was tendered. In his opinion, no person should approach an excavator unless that person had ensured there had been contact with the operator and an acknowledgment received of that contact and the machine had then been placed in idling mode.
As well, the operator should indicate to the other person it was all right to approach. He agreed there would have been ample time for the operator to take his hand off the right‑hand lever to cease the operation of the blade if the operator had been aware of another person at the door who was speaking to him. He agreed it was unsafe for the operator to use a mobile phone whilst the machine was in operation and that if an operator was on the phone then the machine should have been shut down.
Section 21 of the Civil Law (Wrongs) Act 2002 (ACT) is relevant and states:
(1) A person (the first person) who is liable for damage caused by a wrong can recover contribution from someone else (a contributory) who is also liable for the same damage.
(2) The contribution must be an amount that the court considers just and equitable having regard to the extent of the contributory's responsibility for the damage.
3) However, the first person is not entitled to contribution under this section if (a) the first person is liable to indemnify the contributory against the contributory's liability for the damage; or (b) the court exempts the contributory from liability to make contribution; or (c) the court has directed that contribution to be recovered from a person for the damage is a complete indemnity for the damage.
As noted previously, it is agreed that the settlement reached by the parties is reasonable. It is accepted by the defendant that Mr Sommerauer was negligent in his operation of the machine by use of a mobile phone in breach of a site rule. It is submitted the defendant owed a duty of care to the plaintiff to exercise reasonable care, and his use of a mobile phone in contravention of site rules whilst operating heavy machinery was a breach of that duty and caused the accident as his attention was clearly on the phone call and not on the approach to the vehicle by Mr Brekalo.
It seems Mr Sommerauer was under the direct control of Huon in that his work was allocated each day to him by the Huon supervisor. The site documents relating to safety, induction and site rules were all prepared by Huon. Whilst Mr Brekalo was an employee of the first third party, Kuna, he was clearly also under the control and supervision of Huon, the second third party. He was given instruction on site by the Huon foreman. He underwent an induction by a Huon engineer. He had a site induction package and he identified work method statements. He said he was aware he was not to enter an exclusion zone unless he had gained eye contact with the operator, and I accept that evidence and I find him to have been under the control of Huon on that work site.
Following on from the decision of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 where the court looked at the question of duty of care owed by an entrepreneur to independent contractors, in the New South Wales Court of Appeal in Sydney Water Corporation v Abramovic [2007] NSWCA 248, Basten JA looked at the scope of the duty owed by a principal to a worker employed by an independent contractor. He identified four criteria:
a) The principal directs the manner of performance of the work.
That was clearly so in the present case.
b) The work requires the coordination of the activities of different contractors.
Again, that was clearly the case here.
c) The principal has or ought to have knowledge of the risk and
d) the employer does not and cannot reasonably be expected to have such knowledge.
Mr Sommerauer gave evidence that he had raised with the Huon supervisor issues where people had approached his machine when it was operating and he had not been aware of them and that he had told the supervisor about those incidents and was not sure if any action had been taken to cease that practice. Mr Sommerauer did not report to anyone other than Huon on that site and thus Huon had knowledge of the risks which the first third party could not reasonably be expected to know about.
It is submitted by counsel for the defendant that site rules were devised and implemented by Huon and they were deficient in that Huon should have emphasised to all workers, such as Mr Brekalo, the need to receive an acknowledgment from the operator of the heavy machinery before approaching the machinery.
There is clearly a divergence in the evidence of Mr Brekalo and Mr Sommerauer as to the procedure which was followed on 14 May 2012. Both agreed they were aware of the need for caution in approaching the vehicle and that eye contact should be made and that there was an exclusion zone as set out in the Huon systems manual. The manual notes:
All plant operating on site to have functioning flashing lights and reversing sirens and special attention was to be paid to blind spots and exclusion zones. Personnel are not to enter a machines exclusion zone without gaining eye contact with the machine operator.
In looking to the evidence I accept that Mr Sommerauer was operating the excavator and while doing so was engaging in a distressing conversation with his daughter for some minutes. He was no doubt distracted by that activity, which was in breach of the rules, in any event. It was his evidence that he first saw a movement to his left side and became aware of the door opening when the blade of the machine was going down and it was too late to stop it at that time. He said he had not stopped the machine as the bucket was full of gravel and the blade needed to be down to stabilise his machine and the whole incident happened very quickly. He said he was able to continue working whilst he had the earphones on and his hands were thus free.
In contrast, Mr Brekalo said the machine was idling, that he had placed one foot on the blade and started to speak to Mr Sommerauer. He said he did not feel the blade moving and he was not aware of it lowering at all, but saw Mr Sommerauer operate the controls. He did not see him speak nor did he receive any response to his words. He was not aware Mr Sommerauer was on the phone.
Each of these gentlemen appeared to be straightforward and to give evidence to the best of their recollection. Mr Sommerauer was quite frank that his recollection some four and a half years ago was better than it is today. The evidence of Mr Sommerauer was to my mind compelling. Allied to his evidence is that of the safety environmental incident report which was completed on 14 May 2012 by the site supervisor/foreman which recorded:
Plant operator putting down front blade to stabilise machine has lowered blade onto labourer's right foot accidentally. Labourer screamed alerting plant operator who has immediately raised the front blade.
That gives credence to Mr Sommerauer's evidence of needing to stabilise the machine, and by implication that the machine operator was aware of the situation only when there was a scream. Thus I accept that more probably than not the machine was in operation when Mr Brekalo approached Mr Sommerauer and that Mr Sommerauer took immediate action when he became aware of Mr Brekalo's presence.
Mr Brekalo says he made eye contact with Mr Sommerauer. That would appear difficult in circumstances where Mr Sommerauer, in Mr Brekalo's evidence, was wearing chrome aviator sunglasses. He then said he received an acknowledgment from Mr Sommerauer by means of a “reverse nod”. To my mind, that could be almost any movement of the head. Perhaps he was stretching his neck or otherwise moving his head around. It seems to me a fairly inexact way of determining that there has been some indication of being able to approach the machine.
As well, in accordance with Mr Martin's evidence, the site rules needed to go further than a mere making eye contact with the operator. Commonsense would dictate that some acknowledgment of the contact and indication of agreement to approach is reached. Thus, I accept that if there had been such a clear and obvious rule Mr Brekalo would have followed such a rule and this would have prevented any accident. I am satisfied Huon's site rules were deficient in that regard.
No evidence was called of the site supervisor or by any employee of Huon in relation to the site rules. Some of those have been tendered. It appears that the recommendation made by supervisors after the event were that there should be a need to press home the observance of the exclusion zone and eye contact when entering the exclusion zone. None of the people who completed the safety or environmental report were called in relation to that evidence.
It seems Huon's site rules were deficient. As well, it appears Mr Sommerauer had identified deficiencies in respect of workers approaching his machine on prior occasions and that had been identified to the Huon supervisor but no action appears to have been taken to remedy these problems. I am satisfied Mr Sommerauer owed a duty to Mr Brekalo to exercise reasonable care and there was a breach of that duty by use of his mobile phone whilst operating the excavator. I am also satisfied Huon owed a duty to Mr Brekalo in that they were responsible for management of contractors who were on site, including Mr Brekalo, and owed him a duty of care and it had acknowledged site risks but it had the means to alleviate those risks by amending the site rules or enforcing them.
I am satisfied the site rules devised by Huon were defective in respect of a workman approaching heavy machinery more than eye contact should be made but to the effect of receiving an acknowledgment. As well, Huon did not follow up on the advice given to the foreman that workers had been approaching Mr Sommerauer and his machine without warning and nothing appears to have been done by Huon to remedy that situation. Such breach was clearly causative.
Counsel for the defendant has submitted that in determining apportionment both culpabilities need to be compared in respect of the degree of departure from the requisite standard of care and the relative importance of the acts of the parties in causing the damage. Counsel for the second third party submits there was a breach of the duty by Sommerauer in relation to use of a phone, but nothing done or not done by Huon contributed to the loss and the system in place was not unreasonable.
In the alterative, he submitted that any shortcomings by the second third party did not materially contribute to the loss. I have given my reasons as to why I do not accept that submission and I do find that the second third party that is, Huon, is a person liable for damages caused by a wrong on their part in accordance with section 21 of the Civil Law (Wrongs) Act 2002 (ACT) and that it is just and equitable and appropriate that a contribution is made by the second third party.
Having considered all submissions in relation to the apportionment and in consideration of all the evidence which is before me, I have come to the view that I should apportion the liability in the proportion of 40 per cent to the defendant and 40 per cent to the second third party. There has already been a 20 per cent agreement in relation to the first third party, and I make orders accordingly.
| I certify that the preceding [ 35 ] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: 17 February 2017 |
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