Classic Constructions (Aust) Pty Ltd v Fischetti
[2015] ACTCA 51
•30 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Classic Constructions (Aust) Pty Ltd v Fischetti |
Citation: | [2015] ACTCA 51 |
Hearing Dates: | 6 November 2014 |
DecisionDate: | 30 September 2015 |
Before: | Murrell CJ, Refshauge ACJ, Burns J |
Decision: | 1. The appeal is upheld and the verdict of the learned Master set aside. 2. In lieu, there will be judgment for Classic Constructions (Aust) Pty Ltd. 3. The parties be heard as to costs. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – negligence –duty of care – personal injury – workplace injury – independent contractor – not an employee – contributory negligence – risk assessment – assessment of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), s 100 Occupational Health and Safety Act 1989 (ACT), ss 38, 39 Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT) |
Cases Cited: | Australian Capital Territory v Crowley (2012) 7 ACTLR 142 |
Parties: | Classic Constructions (Aust) Pty Ltd (Appellant) Dominic Fischetti (Respondent) |
Representation: | Counsel Mr J E Sexton SC (Appellant) Mr P Webb QC and Mr D Richards (Respondent) |
| Solicitors Hicksons Lawyers (Appellant) Maurice Blackburn Lawyers (Respondent) | |
File Number(s): | ACTCA 81 of 2013 |
Decision under appeal | Court/Tribunal: Supreme Court of the ACT Before: Master Harper Date of Decision: 26 October 2013 Case Title: Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Limited Citation: [2013] ACTSC 210 |
THE COURT:
In late December 2005, Dominic Fischetti, the respondent, was asked by John D’Ambrosio, at the request of Michael Tanchevski, director of Classic Constructions (Aust) Pty Ltd (Classic Constructions), the appellant, to assist Mr D’Ambrosio to remove some concrete that had been excised from the driveway of residential premises in Nicholls in the Australian Capital Territory.
Mr Fischetti had worked for Mr D’Ambrosio previously, initially as an employee and later as an independent contractor. His work for Mr D’Ambrosio was done almost entirely for Classic Constructions, for whom Mr Fischetti later worked directly, also as an independent contractor.
Mr Fischetti agreed to assist Mr D’Ambrosio in removing the concrete from the Nicholls premises and went, at the appointed time, to the premises to find that the concrete to be removed had already been cut into three large sections.
He and Mr D’Ambrosio then proceeded to lift the three sections and put them into Mr D’Ambrosio’s truck. Although Mr Fischetti and Mr D’Ambrosio struggled to lift the pieces of concrete onto the truck, they managed to put the first two pieces into the truck without specific incident.
Lifting the third piece was, however, more difficult and Mr Fischetti particularly struggled. One of his knees almost buckled under him, his knee going to the ground. He felt “something go” in his back. Despite what was described as “a twitch in his back”, he and Mr D’Ambrosio managed to get the third piece of concrete onto the truck.
Mr Fischetti, however, later suffered severe back pain which persisted over some years until he finally had to cease work.
He commenced proceedings against Classic Constructions in 2008 and, in 2013, Master Harper entered judgment for him in the sum of $822,641.00: Fischetti v Classic Constructions (Aust) Pty Ltd and Vero Insurance Limited [2013] ACTSC 210 (Fischetti).
Classic Constructions appealed against the judgment.
Jurisdiction
Under s 37E of the Supreme Court Act 1933 (ACT), this Court has jurisdiction to hear appeals from final orders of the Master. Under s 37N, the Court must have regard to the evidence given before the trial judge and may receive further evidence.
No further evidence was sought to be adduced by either party and none was admitted on the appeal.
This Court is required to decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of the hearing of the appeal: Western Australia v Ward (2002) 213 CLR 1 at 87; [70].
The appeal is by way of a rehearing, which Kirby J described in CSR Ltd v Della Maddalena (2006) 224 ALR 1 at 7; [16]-[17] as follows:
...The relevant ‘requirements’ are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors of fact-finding. ... This involves, where, as here, there is no jury, conducting a thorough review of the primary judge's reasons and engaging in the tasks of ‘weighing conflicting evidence and drawing ... inferences and conclusions’.
The ‘limitations’ introduced into the rehearing based on the record of the trial are those necessarily involved in that form of appellate procedure. Such limitations include those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole.
(footnotes omitted)
As pointed out in Australian Capital Territory v Crowley (2012) 7 ACTLR 142 at 146; [5], error must be shown.
Notice of Appeal
Classic Constructions pleaded the following grounds of appeal:
(a) His Honour erred in imposing a duty of care akin to an employer contrary to Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox (2009) 240 CLR 1;
(b) His Honour erred in finding that a duty of care was imposed upon the appellant when the respondent was an independent contractor;
(c) His Honour erred in finding that a duty of care was owed to an independent contractor when work had been carried out by another independent contractor which it is said resulted in the harm;
(d) His Honour erred in his interpretation of the facts that bring the circumstances within the provisions of the decision in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16;
(e) His Honour erred in finding that the appellant ought to have taken steps to direct another contractor in the manner in which the concrete was to be cut up;
(f) His Honour erred in finding that the system of work involving the respondent and another independent contractor was unsafe when the means to obviate the risk lay within the means of the respondent;
(g) His Honour erred in finding that the respondent, being a contractor, was not guilty of contributing negligence in failing to take measures which would have obviated any harm;
(h) His Honour erred in imposing a duty of care resulting from the Occupational Health and Safety Legislation in the Australian Capital Territory, tantamount to a statutory breach;
(i) His Honour erred in imposing a duty of care under the Occupational Health and Safety (Manual Handling) Regulation 1997 (ACT) in particular, pursuant to section 38 and 39 (sic) of that regulation [these section numbers appear to relate to the Occupational Health and Safety Act 1989 (ACT)];
(j) His Honour failed to take into account the evidence of the respondent and Mr D’Ambrosio in imposing liability on the appellant for the actions of independent contractors;
(k) His Honour erred in failing to take into account the evidence of Dr Le Leu in assessing the injury to the respondent;
(l) His Honour erred in not taking into account the previous history of the respondent and his subsequent work history in assessing damages;
(m) His Honour ignored the evidence of Wages Declaration and tax returns in assessing the respondent’s economic loss, thereby falling into error;
(n) His Honour erred in awarding care where the evidence did not support it.
Mr P Webb QC, who appeared with Mr D Richards for Mr Fischetti, submitted however, that Classic Constructions did not argue the appeal in strict conformance with the grounds of appeal.
While that can cause injustice if a respondent is not given proper notice of the basis of the appeal, it was not the ultimate result here for the issues on the appeal became clear and did not take the respondent by surprise.
There were three issues in the appeal as conducted: Was Classic Constructions liable to Mr Fischetti in negligence? If so, was Mr Fischetti contributorily negligent? Were the damages a proper award of damages and, in particular, was the provision for damages in the nature of Griffiths v Kerkemeyer (Griffiths v Kerkemeyer (1977) 139 CLR 161) a proper provision?
Liability of Classic Constructions to Mr Fischetti
The proceedings were conducted on the basis that Mr Fischetti was an independent contractor to Classic Constructions; he was not an employee. This was the finding of the learned Master: Fischetti at [72]. It was not challenged on appeal.
The learned Master further found that the duty of an employer to an employee “is considerably more stringent than the duty generally owed by a principal to a subcontractor”: Fischetti at [73].
The parties agreed that the primary principle that applied to this case was that established in Stevens v Brodribb Sawmilling Co Pty Ltd at 47, where Brennan J said:
An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur.
(footnotes omitted)
This approach was confirmed by the High Court in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox at 25; [59]. The High Court in that decision also approved what had been said in Stevens v Brodribb Sawmilling Co Pty Ltd by Mason J. The Court summarised in the following way at 26, [62] what his Honour had said, namely that:
... if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work, and where there is a need for him to give directions as to when and where the work is to be done and to coordinate the various activities, the entrepreneur will come under a duty to prescribe a safe system of work.
The essence of the principal contention on the appeal was this. Classic Constructions submitted that Mr Tanchevski of Classic Constructions told neither Mr D’Ambrosio nor Mr Fischetti how to carry out the removal of the concrete and Mr Fischetti had sufficient experience to ascertain how the task should be performed. If Mr Fischetti considered that it should be performed in another way, then there was no impediment to him doing it in a different way or advising Mr Tanchevski that it should be done in a different way. There was no evidence to suggest that Mr Tanchevski would not have permitted or facilitated the task being performed in another way, had that suggestion been made by Mr Fischetti.
Mr Fischetti submitted that, contrary to this, Mr Tanchevski had prescribed the manner in which the task was to be performed. Inferentially, he had caused the concrete cutters to cut the concrete as they did and he had tasked Mr D’Ambrosio and Mr Fischetti to remove the cut pieces of concrete manually without making provision for the use of a bobcat or other aids. Mr Fischetti was, in all the circumstances, constrained so that he had to carry out the task in the way prescribed.
In order to decide between these competing submissions, it is necessary to have some consideration of the evidence.
The evidence
After leaving school, Mr Fischetti commenced an apprenticeship as a mechanic but abandoned that before its completion. After working as a labourer, he obtained a job as a concreter, working for the one firm for about six years.
He was later approached by Mr D’Ambrosio, a concreter with his own business, who invited him to work for him, which he did. Most of Mr D’Ambrosio’s work was for Classic Constructions. That company was then building residential premises. Mr Fischetti performed concreting work, laying concrete slabs, driveways and foundations.
Mr Fischetti remained as an employee of Mr D’Ambrosio for about five years. During that time, he met Mr Tanchevski, who invited him to undertake some extra work for Classic Constructions.
Mr Fischetti then ceased to be Mr D’Ambrosio’s employee and established himself as an independent contractor. He continued to undertake work for Mr D’Ambrosio. The evidence was that initially he worked about half his time for Mr D’Ambrosio and half his time directly for Classic Constructions. Later, he worked mainly for Classic Constructions directly, but also undertook some private jobs.
At some point, Concrete Constructions informed all its subcontractors, including Mr Fischetti, that they would have to incorporate as companies to carry out subcontracted work or they would not be paid. As a result, Mr Fischetti incorporated a company to conduct his business, Correct Concreting Pty Limited.
As an independent contractor, Mr Fischetti was given a plan of work by Mr Tanchevski and told where to work. He said that Mr Tanchevski “would organise everything”. Mr Tanchevski was frequently on site discussing the work with each subcontractor. Classic Constructions supplied the concrete that he used. Sometimes Mr Fischetti would supply the steel mesh for the concreting.
One of the jobs Mr Fischetti carried out for Classic Constructions was on a residential site at Nicholls. He laid the footings, then the slab and, at a later date, the driveway.
Mr D’Ambrosio also worked on the site fairly frequently. He helped Mr Tanchevski peg out where the footings had to be dug when the excavations started and he dug the footings.
When Mr Fischetti was laying the concrete on the site, Mr Tanchevski was regularly on site, organising the subcontractors and, amongst other things, ensuring that the work was done as required.
The owner of the premises, Robert Douglas, gave evidence. He said that he had had discussions directly with Mr Fischetti when he was trying to ensure that the work was done as he wanted it. He described Mr Fischetti as “a man who was clearly running his own concreting business”.
Mr Douglas explained that Mr Tanchevski was one of his neighbours. His other neighbour had raised a concern that part of the driveway on Mr Douglas’ house had been laid over the boundary onto the neighbour’s block and he wanted that concrete removed. Mr Douglas then spoke to Mr Tanchevski who agreed, for payment, to cut off the piece of the driveway that encroached on the neighbouring block and remove it.
Although Mr Douglas was not at home when the concrete was cut, he saw that it had been cut into three pieces. The area that was removed was a little over 2 metres long, 400-600 mm in width and four to six inches thick. It was cut into three pieces. He estimated the weight of each piece to be in the order of 100 kgs.
Mr D’Ambrosio gave evidence that, shortly before Christmas, Mr Tanchevski rang him and told him to arrange to do a job for him with Mr Fischetti. Mr D’Ambrosio said that he did not tell Mr D’Ambrosio what the job was. They were to meet at the Nicholls site. Mr D’Ambrosio considered that it was Mr Fischetti’s “job”, although Mr Tanchevski had asked him to do the work. He said that Mr Tanchevski was unable to arrange for a bobcat so the concrete that had been cut had to be moved into Mr D’Ambrosio’s truck by hand. He said that the pieces were very heavy.
Mr Fischetti gave evidence broadly to the same effect. He also said that Mr D’Ambrosio had telephoned him to arrange for the work to be done at the Nicholls site. He said, however, that Mr D’Ambrosio told him that they had “to move some concrete”. They met at the premises and, when he saw the concrete pieces, Mr Fischetti expressed some concern that the pieces of concrete were going to be very heavy and that the cutters should have cut them into smaller pieces.
He said that Mr D’Ambrosio simply replied that they were there now and they should make an effort to do the work. Mr Fischetti agreed.
The two men managed to get the first piece of concrete into Mr D’Ambrosio’s truck. Using a crowbar, they moved the piece, loosened it, got under it, lifted it up and took it over to Mr D’Ambrosio’s truck, where they loaded it.
They managed to get the second piece into the truck using the same method. As to the third piece, they managed to loosen and lift it but Mr Fischetti found that he was struggling. He “gave it a good go” but then felt his leg give way. He nearly fell, but managed to put his knee on the ground. He felt a twitch in his back. He managed, however, to summon his strength and put the third piece into the truck.
As a result, Mr Fischetti’s back was injured and the proceedings were brought to obtain compensation for the injuries he suffered.
We turn to some aspects of the cross-examination of Mr Fischetti. He agreed that, once he established his own business, he was able to employ other people if necessary and was very much his own boss. He described the way in which he worked with Mr Tanchevski as follows:
So is this the situation, that when you were working for Classic or Mr Owen or whoever else you worked for, they would tell you the scope of the job and give you the plans and you would be responsible for implementing it from that moment forward, is that correct? --- No. They would give us the plan, they would give me the plan, but I would meet them on the job and we’d go through it, you know, what to do. I just can’t go there with the plan and do – because there’s engineers involved and everybody else, you know.
Because there are other trades and professionals involved, is that right? --- Yes, especially engineers, yes.
But once the scope of the job was set out in that fashion with the people on the site, you were able to follow the plans and bring it to completion? --- Yes.
As far as you - - -? Unless there’s a problem, you now, a problem occurs. I’d ring the builder, he’d come out and we’d, you know, try to fix the thing, whatever it is.
He agreed that there was never a problem with Classic Constructions if he wanted to have a bobcat on a site where he was working to assist with the work.
Mr Fischetti also agreed that he had a good but “fairly loose” relationship with Mr D’Ambrosio, where they would help each other out on each other’s jobs from time to time.
As to the removal of the concrete at the Nicholl’s premises, Mr Fischetti agreed that he only spoke to Mr D’Ambrosio about the job and that all he knew was that some concrete had to be removed. He did not speak to Mr Tanchevski about the work.
Despite the evidence of Mr Douglas, Mr Fischetti denied receiving any instructions from him when he had previously worked on the Nicholls site. He said that all the instructions had come from Mr Tanchevski as the builder. He said that he could not do any “boxing in” or pouring of concrete until Mr Tanchevski was on site and approved it. He agreed, however, that once he had that agreement he utilised his own skills to get the work done, as he was the concreter. He made his own decisions about how the job should be done and the best way to do it. He also agreed that he decided which tools he would use.
As to the particular task of removing the cut pieces of concrete, he agreed that he was not keen to lift them, as he knew they were going to be heavy. He agreed that Mr D’Ambrosio had suggested that they try to do the work. He agreed also that he could have contacted Mr Tanchevski and ask for the cutter to return to cut the concrete into smaller pieces or get a bobcat, but he said that Mr D’Ambrosio had been instructed by Mr Tanchevski to do the job and he was concerned because Mr D’Ambrosio had a longer history of employment by Mr Tanchevski. He suggested that he felt bound to do the work as required by Mr D’Ambrosio.
Mr Fischetti also agreed that, based on his past experience, there would have been no problem in getting a bobcat on the site or having the concrete pieces cut into smaller pieces. He was, however, prepared to act on the urging of Mr D’Ambrosio.
Mr Fischetti also agreed that he could have asked Mr Tanchevski to supply further labourers to assist in the task if a bobcat was not available or it was not possible to cut the concrete into smaller pieces.
He said that Mr Tanchevski would have known that the concrete pieces were heavy because he had measured them up. Mr Tanchevski was a builder and not a concreter and, as a concreter, he, Mr Fischetti, knew what the pieces would weigh.
He also agreed that after lifting the first piece, he could have stopped and rung Mr Tanchevski to seek assistance. He was, however, aware that Mr Tanchevski liked to save money and he had Mr Fischetti do things for him without payment.
In re-examination, Mr Fischetti explained further why he did not approach Mr Tanchevski:
MR CROWE: Mr Fischetti, you recall that Mr Cranitch asked you a question about whether you could have, when you were at 5 Peken Place on 19 December 2005, whether you could have rung Mr Tanchevski to ask him for a bobcat or for more concrete cutting. Do you remember that question being asked? --- Yes, yes.
And you said eventually, yes, you could have rung him? --- Yes, but ---
Did you ring him on that day? --- No, because ---
Why not? --- Because the way John was going, like, he didn’t want to, so I just, you know, like, because Mick rang him, I let it go, like, you know, like, he said no, we’ll do the best we can. And I just, you know, like, I didn’t, like, ring him. It wasn’t really up to me, because Mick rang John, you know. If it was probably me, I would have, you know what I’m saying, but I’m not going to go over John, I didn’t want to go over John, because Mick, he was the first one to start with Mick, so that’s why I left it. Now everybody is like, you know, saying like, you know, like, John might have got upset, like and would have said – or Mick would have got upset and would have just said, like, normally sometimes he says, just try doing it without the bobcat, you know, like, things like that. That’s how Mick sometimes was. He’s like – so and John knows that too.
All right. --- So it wasn’t really, you know, like it wasn’t – I know I did the job, but that job had nothing really to do with me, just because it was out, they made a mistake, Mick and the owner and my job was finished, you know, the job I did was finished. I was finished for the year, you know, like, and so but John rang me to go. I said to John, like, you know, like, okay, because I had finished work for the year. And then I said to him, like, I said, get your offsider to help you, you know, and I don’t know why he didn’t ring me. But so he rang me probably because I did the job, but the job was finished and so he was the, you know, in charge of that work what Mick set him to do, so Mick, he rang me. To be nice, I said, ‘Okay, I’ll come and give you a hand’. But when I went out there, yes, I’ve looked at it and I’ve said like, John, you know, at least they could have cut it more or, you know, got, you know, they should have used the backhoe, but they didn’t at that time. I don’t know why Mick didn’t do it.
There was no evidence to suggest that Mr Fischetti had decided where the driveway was to be laid and, therefore, had been responsible for the encroachment; indeed, to the contrary, the inevitable inference was that Mr Tanchevski, possibly in consultation with Mr Douglas, had made that decision. Because Mr Tanchevski did not give evidence for his company, Classic Constructions, that inference may be drawn more confidently: see Jones v Dunkel (1959) 101 CLR 298.
Consideration of the liability of Classic Constructions to Mr Fischetti
The nub of the challenge by Classic Constructions was that the task assigned to Mr Fischetti was a relevantly simple one and one well within his competence as an independent contractor. It was not to be performed in a particular way prescribed by Mr Tanchevski or Classic Constructions and Mr Fischetti could, as he acknowledged, have sought help; a bobcat could have been procured to assist, the pieces could have been cut into smaller pieces or more labour could have been employed.
Mr Fischetti’s response to this challenge had three strands. First, the relationship between Mr Fischetti and Mr Tanchevski and Classic Constructions was one of dependence and dominance so that Mr Fischetti was in a rather different position than would ordinarily be the case with an independent contractor.
The second strand was that Mr Tanchevski had prescribed the method of performing the task and, therefore, had assumed such responsibility as would render him liable for the negligence that was inherent in the method of performance of the work.
The third strand was implicit; that the task was wider than just the removal of the pieces of concrete, but was the whole rectification of the encroachment of the driveway and, viewed in this way, the actions of Mr Tanchevski showed that he did prescribe the method of carrying out the work so as to assume a responsibility for it and those who carried it out.
In response to the submission of Mr J Sexton QC, counsel for Classic Constructions, that this was “so simple and obvious” a task (see O’Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 230) that Mr Fischetti did not require special knowledge to decide how to do it; that a grown man needs no such instruction on the ground of common sense (see Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177 at 180-1), Mr Webb QC submitted that this was no longer the relevant test.
In our view, none of these answers to the challenge by Classic Constructions to the decision of the learned Master is made out.
As suggested in the first thread of the response, the history of the relationship between Mr Fischetti and Classic Constructions and Mr Tanchevski does show a degree of dependence. Mr Fischetti obtained most of his work from the company. The evidence, however, did not show that this played any particular part in the decision by Mr Fischetti not to seek assistance in any of the three ways he acknowledged were available to undertake the assigned task with safety. The evidence did not establish that Mr Fischetti had no choice but to perform the task in the way in which he did perform it.
The highest that the evidence came was Mr Fischetti’s comment that he knew that Mr Tanchevski was frugal and did not like to spend money unnecessarily on projects. He did not suggest, however, that this was a reason he did not seek any assistance.
It was never suggested by Mr Fischetti that he was concerned that there would be repercussions from Mr Tanchevski or that his work flow from Classic Constructions would suffer if he asked for the kind of assistance that he thought may be necessary.
Despite Mr Fischetti’s misgivings, the only urging to continue with the task, was that of Mr D’Ambrosio, to whose suggestion that the two men should just get on with it Mr Fischetti acquiesced.
Indeed, apart from the reservation that Mr Tanchevski did not like to spend money if he did not have to, Mr Fischetti’s evidence was that there was no real impediment to him seeking the assistance that he thought was appropriate. The task was well within his competence and expertise.
As to the second thread of the response, it may be accepted that Mr Tanchevski had requested Mr D’Ambrosio to arrange with Mr Fischetti for the joint removal of the cut pieces of concrete. The request contained no mention of the size of the concrete pieces, the use of a bobcat or any other labour.
This, it was submitted, constituted Mr Tanchevski prescribing that the work must be done by the two men alone and manually. This was consistent, therefore, at best with a prescription that was not express and only to be implied from the absence of any reference to a method of removal. That, however, cannot be accepted. Mr Fischetti, in his evidence, gave no indication that he could not have sought the assistance that he clearly thought was needed to move the pieces of cut concrete safely.
While Mr Fischetti did say that he understood that Mr Tanchevski had been on site when the concrete had been cut, that, it appeared, was not within his own knowledge. Even if the apparent inference that this was so could be drawn on a Jones v Dunkel basis, it does not go so far as to show that Mr Tanchevski was aware of the weight of the concrete and whether it needed more than two men to remove it.
The other gap in the evidence was the absence of a statement by Mr D’Ambrosio that Mr Tanchevski had prescribed how the concrete was to be removed. That is, he simply requested that Mr D’Ambrosio and Mr Fischetti attend and remove the concrete. The court is entitled to accept that Mr Tanchevski knew that both Mr D’Ambrosio and Mr Fischetti were experienced concreters who would know how to perform the task. There was no evidence that Mr Tanchevski forbade the use of a bobcat, further labour or re-cutting. There was evidence that both Mr D’Ambrosio and Mr Fischetti had used other employees on relevant projects from time to time to perform work for Classic Constructions.
As to the third thread in the response, it may be accepted that Mr Tanchevski was, as the builder and contractor with Mr Douglas, responsible for the whole project, from the cutting of the concrete to the removal of the cut pieces from the site. That, however, does not require a finding that Mr Tanchevski had responsibility for the manner of performance of each part of the relevant task. The evidence did not go so far.
Mr Webb QC referred to what Basten JA said in Sydney Water Corporation v Abramovic [2007] NSWCA 248 as to the indicia of when a principal may owe a duty to an employee of a contractor. This was the situation here, as Mr Fischetti was the employee of his company, the contractor to Classic Constructions.
His Honour said at [98]-[99]:
98 However, the principal may also owe a duty to a worker who is an employee of an independent contractor. The legal question is to identify the criteria which must be satisfied to give rise to such a duty of care. The cases suggest that satisfaction of one of the following criteria may give rise to such a duty:
(a) the principal directs the manner of performance of the work;
(b) the work requires the coordination of the activities of different contractors;
(c) the principal has or ought to have knowledge of the risk and the employer does not and cannot reasonably be expected to have such knowledge;
(d) the principal has the means to alleviate the risk and the employer cannot reasonably be expected to do so;
(e) although the employer has or should have the relevant knowledge and can be expected reasonably to take steps to alleviate the risk, it does not, to the knowledge of the principal, do so.
99 The operation of criteria (a) and (b) is reasonably clear, but they were not engaged in the present case. The operation of (c)-(e) is not so obvious, nor is it clear that there may not be additional criteria. For example, the degree of control which the principal retains over the workplace and the statutory responsibility with respect to safety at the workplace, both of which existed in Crimmins, may be critical considerations in relation to criterion (e).
100 There is a question as to the inter-relationship of (c) and (d). For example, criterion (c) may operate only in tandem with (d) or, if it is sufficient by itself, it may give rise only to a duty to warn, that is to pass on the relevant information to the employer. Criterion (d), on the other hand, may give rise to an obligation to require the institution of a particular system of work and, if necessary, to supply the necessary equipment to alleviate the risk.
In this case, it does not seem to us that the criteria here set out have been met such as to impose liability on Classic Constructions.
The evidence is not at all clear, for the reasons set out above (at [68]-[69]) that Mr Tanchevski was aware of the risk outlined in criterion (c). It is clear, however, that Mr Fischetti was well aware of the risk and expressed his concern to Mr D’Ambrosio soon after arriving at the site.
While what Basten JA said in relation to criterion (d) does apply here, in that Classic Constructions could have provided the identified means to alleviate the risks, the evidence does not go so far as to permit the conclusion that Mr Tanchevski refused to provide or prohibited the use of a bobcat or more labour. He was never asked for either alternative and so there was no occasion for a refusal.
So far as the further suggestion that the principles as to the responsibility for simple tasks “had changed with time”, this was the response by Mr Webb QC to the submission of Mr Sexton SC that:
... it was a simple uncomplicated operation within the normal system of work: Glass, McHugh and Douglas The Liability of Employers in Damages for Personal Injury (2nd Ed 1979) at 45-6.
Indeed, Mr Sexton SC went further and submitted:
that, even if the respondent had been an employee of the appellant, the factual circumstances fall within the category of cases in which the duty of care to a worker does not extend to informing the worker of obvious risks involved in simple tasks within the worker’s knowledge and expertise.
He referred to O’Connor v Commissioner for Government Transport and Electric Power Transmission Pty Ltd v Cuilui and other decisions.
Mr Webb QC submitted that these were old decisions that no longer represented the law because of the evolving obligations the law imposed on employers and contractors in work situations. He referred, in particular, to Seage v New South Wales [2008] NSWCA 328 as authority for this approach.
That authority goes part of the way to support the submissions of Mr Webb QC but not far enough. In that decision, Macfarlan JA, with whom Tobias JA and James J agreed, said at [39]:
Whist it is possible to discern a trend since cases such as Smith, O’Connor and Electric Power were decided towards a more stringent standard applicable to employers and whilst statutory changes such as the enactment of the Occupational Health and Safety Act 2000 have occurred, the applicable tests continue to require a focus on how a reasonable person would assess the risk of injury to the plaintiff (or a class to which the plaintiff belongs) and would respond to any risk so identified. Notwithstanding these changes, I consider that the reasonable employer’s position in 2003, when the accident occurred, would have been as I have described earlier.
The reference to what his Honour “described earlier” includes the following comment at [33]:
A reasonable employer would ordinarily regard it as quite unnecessary to give warnings or take other steps in relation to these commonplace activities. The movement of furniture, when it forms no part of the employee’s regular duties or activities to perform it, in my view falls into the same category.
That decision, it should also be noted, involved an employee of the defendant, not an independent contractor or the employee of an independent contractor. It does not stand for the proposition that the older authorities are no longer good law.
Among the decisions to which Mr Sexton SC referred his submissions were more recent ones, namely, Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204; Bostik Australia Pty Ltd v Liddiard [2009] Aust Torts Reports 82-020 (which post-dates Seage v New South Wales).
The court in Van der Sluice v Display Craft Pty Ltd quoted from and followed O’Connor v Commissioner for Government Transport.
The court in Bostik Australia Pty Ltd v Liddiard referred to Electric Power Transmission Pty Ltd v Cuilui, as well as other decisions to a like effect, such as J Blackwood & Son Steel & Metals Pty Ltd v Nichols [2007] NSWCA 157, which were to the same effect.
In this case, there was no duty cast on Classic Constructions to give any greater directions or to take further precautions than it did to protect Mr Fischetti from injury in the circumstances, given the nature of the task and Mr Fischetti’s experience.
The appeal should be upheld and the judgment of the learned Master set aside. That, however, does not relieve the court of considering the other matters raised in the appeal.
Contributory Negligence
The learned Master’s consideration of this issue was relatively brief. He said at [85]-[89]:
85. The defendant relies on a defence of contributory negligence, the particulars being as follows:
(a) Failure to undertake any or any proper risk assessment prior to commencing concreting work.
(b) Failure to obtain suitable equipment and/or labour to break up and move any concrete.
(c) Failing to take any or any adequate precautions for his own safety and the safety of his employees as a director and employee of Correct Concerting Pty Ltd.
(d) Failure to exercise reasonable care given his experience obtained in the building industry over a number of years as an employee and conducting his own business as an expert concreting contractor.
86. I am not satisfied that it would be reasonable to expect the plaintiff to have carried out a risk assessment. It does not seem to me that it is fair to describe him as having been engaged in concreting work. It was not his responsibility to obtain equipment or labour to break up or move the concrete. As I have said, the task he was asked to help with was a simple labouring task, not one which required or utilised the experience of a concreter. Nevertheless the defence raises the question of whether he failed to take adequate precautions for his own safety. On his own evidence, he was aware in the course of the lift of the first piece of concrete that the pieces he and Mr D’Ambrosio were expected to lift were too heavy and, because of the sharp ends of the reinforcing steel, too awkward to be moved manually. Nevertheless he persisted, encouraged in that regard by Mr D’Ambrosio, with the lifting and carrying of the second and third pieces of concrete. It is apparent on the evidence that it was during the lifting and carrying of the third piece of concrete that his injury happened. He was, it seems to me, too easily persuaded by Mr D’Ambrosio to continue with the removal, when a reasonable person would have realised that it was dangerous and would have declined to take the removal task any further. Having said that, there were only three pieces to be moved. Mr D’Ambrosio was obviously keen to complete the task immediately, and it was made apparent to the plaintiff that this was Mr Tanchevski’s wish also. He was, I think reasonably, worried that if he refused to complete the task, this might affect Mr Tanchevski’s willingness to continue to give him work as a concreting subcontractor.
87. It was open to the plaintiff to stop the task. There were, it seems to me, good reasons why he did not adopt that course. With the benefit of hindsight, we now know that by continuing with the task to its completion, the plaintiff suffered a serious low back injury, but he was not to know that this would happen, or even that there was any particular likelihood of it happening.
88. The question is whether a reasonable person in the plaintiff’s position, including his situation as a regular subcontractor to the defendant, should have refused to continue with the task until completion. All things considered, I am not persuaded that his failure to stop work on the job was unreasonable, or something I would have expected a reasonable person in his position to do, having regard to his continuing relationship at that time with the defendant.
89. I am not satisfied that the plaintiff was guilty of contributory negligence.
There are a number of things to be said about this reasoning.
In the first place, it should not be accepted that the reference to “risk assessment” in the first particular has or was intended to have, any particular technical meaning. Indeed, it seems that Mr Fischetti did carry out a risk assessment when he looked at the pieces of concrete and expressed the view that they were going to be heavy and, inferentially, difficult to lift.
On Mr Fischetti’s evidence, he knew that there were alternatives to the manual handling of the pieces of concrete. That would amount to an assessment of risk in the ordinary sense. That he did not go further than raising the question of whether the task was able to be carried out without a real risk of injury meant that he did not complete the risk assessment. That decision is well within his competence and expertise.
While it was likely not within Mr Fischetti’s responsibility to obtain equipment or labour, nor was he obliged to carry out the task in a manner that he knew was unsafe, as the finding of the learned Master made clear, the finding of the learned Master was that Mr Fischetti was “too easily” persuaded by Mr D’Ambrosio to continue with the task notwithstanding his concerns. This amounts to a finding that he was guilty of contributory negligence.
While it was clear that Mr D’Ambrosio wished to complete the task and to do so immediately, there was simply no evidence for the further finding of the learned Master that Mr Tanchevski was also eager to have it completed promptly. Indeed, the owner, Mr Douglas, gave no evidence that he or Mr Tanchevski was particularly anxious for the task to be completed. Nothing in Mr D’Ambrosio’s account of his telephone conversation with Mr Tanchevski suggested any need for such urging and Mr D’Ambrosio did not use “urging” as a reason to continue with the task when Mr Fischetti expressed reservations. All that he said was that they were there and should get on with the job.
We do not understand the matters to which the Master was referring when he said that there were “good reasons” for Mr Fischetti continuing with the task. There does not seem to have been any reason, other than the urging of Mr D’Ambrosio, in relation to which the learned Master found that Mr Fischetti had succumbed too easily.
The finding of the learned Master that there was no contributory negligence must be set aside.
Mr Sexton SC submitted that the level of contributory negligence of Mr Fischetti should be set at 50%. We agree with that assessment.
Damages
The issues as to damages were only addressed in the written submissions and not in the oral submissions. They were faintly pressed by Mr Sexton SC.
It was submitted that the expert medical opinions tendered by Mr Fischetti were of little weight because he had given an inaccurate pre-injury history of back symptoms to the medical practitioner.
There is, however, no doubt that Mr Fischetti suffered an injury to his intervertebral disc when lifting the concrete pieces at the property at Nicholls.
The learned Master accepted that Mr Fischetti had degenerative changes in his lower back prior to the injury but accepted that they were asymptomatic. That finding was not challenged and was not inconsistent with the medical evidence given in the proceedings, including the cross-examination of Dr Le Leu.
The learned Master accepted the evidence of Drs Kennedy, Eaton and Le Leu as to causation and there is no basis for setting that finding aside.
The calculations as to economic loss were challenged because there was evidence that for two years Mr Fischetti’s post accident income was greater than his pre-accident income. There were, however, reasons why initially Mr Fischetti was able to continue to work. For example, in those years he was using strong pain killers which would assist him to continue working for a time, but which were not sustainable in the longer term.
The findings about economic loss were also challenged on the basis that they were inconsistent with the evidence that Mr Fischetti’s earning capacity would deteriorate over the ensuring ten years, but that this was not reflected in the calculations on which the learned Master relied.
The learned Master accepted, as his Honour was entitled to do, the report of the Macquarie Reporting Services, prepared by Mr G W Davis, accountant. It was tendered without objection and the author was not cross-examined. His Honour clearly read and considered it carefully, making a correction to an error in the calculations. There was no challenge to the opinion of Mr Davis.
The learned Master also accepted the evidence of Dr Le Leu, that Mr Fischetti would likely have worked for a further ten years from the date of his injury. It was open to the learned Master to accept this evidence.
His Honour, however, did discount this for the conventional vicissitudes of life which took into account the possibility that Mr Fischetti’s capacity to earn would be reduced over his lifetime.
Finally, there was a challenge to the evidence of Dr M Giblin as to the extent of Mr Fischetti’s need for the provision of gratuitous services, payable under s 100 of the Civil Law (Wrongs) Act 2002 (ACT) and under the principles established in Griffiths v Kerkemeyer. It was submitted by Mr Sexton SC that this report was merely an ipse dixit of Dr Giblin and did not justify the report’s finding that Mr Fischetti required four hours per week of assistance.
The difficulty with this submission, however, is that Dr Giblin’s report was not challenged at trial; it was tendered without objection and its author was not cross-examined. The learned Master was, accordingly, entitled to rely on it as he did.
No challenge to the damages award is made out.
Conclusion
Classic Constructions has made out its case that there was no breach of duty of care owed by it to Mr Fischetti.
Accordingly, the appeal must be upheld and the verdict of the learned Master set aside. In lieu, there will be judgment for Classic Constructions.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Acting Chief Justice Refshauge and Justice Burns. Associate: Date: 30 September 2015 |
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