Cooper v Forestry Tasmania
[2000] TASSC 10
•2 March 2000
[2000] TASSC 10
CITATION: Cooper v Forestry Tasmania [2000] TASSC 10
PARTIES: COOPER, Stephen Robert
v
FORESTRY TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1381/1998
DELIVERED ON: 2 March 2000
DELIVERED AT: Hobart
HEARING DATES: 7, 9, 10 February 2000
JUDGMENT OF: Evans J
CATCHWORDS:
Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Prima facie case - Whether the responsibility for a breach of duty passed to the statutory body.
Forestry Act 1920, ss6(3), 7(2)(c), 9, 10(2).
Forestry Amendment (Forestry Corporation) Act 1994.
Forestry Legislation (Transitional Provisions) Act 1994, ss15(3), 18.
Tasmanian State Service Act 1984, s38(1)(b).
Tasmanian State Service (Transitional Provisions) Act 1984, Sch1, cl 29(1), (4)(u).
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, [2000] 74 ALJR 1, followed.
REPRESENTATION:
Counsel:
Applicant: S Taglieri
Respondent: D J Gunson and J R McDonald
Solicitors:
Applicant: Phillips Taglieri
Respondent: John McDonald
Judgment Number: [2000] TASSC 10
Number of Paragraphs: 35
Serial No 10/2000
File No 1381/1998
STEPHEN ROBERT COOPER v FORESTRY TASMANIA
REASONS FOR JUDGMENT EVANS J
2 March 2000
On 1 March 1994 the applicant injured his back when he slipped and fell in the course of working for the then Forestry Commission ("the Commission") on its pine plantation at Oldina.
On 3 November 1998 the applicant issued a writ against Forestry Tasmania claiming common law damages for the injuries he suffered in the accident. The writ having been issued more than three years after the date of the accident, the applicant also applied for an extension of the time within which he could bring the proceedings. That application is before me.
The applicant has named Forestry Tasmania as the defendant to his writ. He asserts that it is the entity to whom responsibility has passed for the breaches of duty upon which he relies to found his action, they being breaches by the Commission and the Crown.
In broad terms the applicant asserts that the Crown owed him a duty of care as his employer and the Commission owed him a duty of care as the body which directed and controlled him in the performance of his work. He asserts that his injuries result from breaches of these duties.
The applicant was employed by the Commission on 8 February 1985. The Commission was a statutory corporation created by the Forestry Act 1920. That Act, s9, provided that the powers, authorities, duties and functions of the Forestry Department shall be exercised, carried out, and performed, on behalf of the Crown, by the Commission. That Act, s10(2), empowered the Commission to engage employees. Consistent with this provision, when the applicant was initially engaged, he was employed by the Commission for the purposes of its performance of its obligations as the body charged with carrying out on behalf of the Crown, the functions of the Forestry Department.
The circumstances of the applicant's employment changed on 1 December 1995 when the Tasmanian State Service Act 1984 and the Tasmanian State Service (Transitional Provisions) Act 1984 commenced. Pursuant to the latter Act, Sch 1, cl 29(1) and (4)(u), the applicant, as a person employed under the Forestry Act, s10(2), was thereupon deemed to be an employee under the Tasmanian State Service Act 1984. In result, from 1 December 1995, consistent with the Tasmanian State Service Act s38(1)(b), the applicant was deemed to be employed by the Minister administering that Act on behalf of the Crown. This change of the entity which employed the applicant went unnoticed by him. This is not surprising, as in the performance of his work, he continued to be subject to the direction and control of the Commission. Generally, in carrying out his work the applicant continued to deal with the Commission as his employer and vice versa.
At the time of the applicant's fall the Crown owed him a duty of care as his employer. There is a clear basis for finding that at that time the Commission also owed the applicant a duty of care as the body which directed and controlled him in the performance of his work. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, (2000) 74 ALJR 1, McHugh J (who was agreed with by Gleeson CJ) said at par107:
"[107] … But usually the very fact of the direction or control will itself be sufficient to found a duty. Where the person giving the direction or in control of another person's freedom of action knows that there is a real risk of harm unless the direction is given or the control is exercised with care, the case for imposing a duty is overwhelming."
No provisions in the Forestry Act 1920 are inconsistent with the imposition of a common law duty of care on the Commission to those it directed and controlled in the performance of its functions.
I do not understand the respondent to dispute that the Commission and the Crown owed the applicant a duty of care. What the respondent strongly disputes is that the applicant's injuries were caused by a breach of duty by the Commission or the Crown; and that responsibility for any breach of duty the applicant is able to establish against the Commission or the Crown has passed to the respondent.
The Commission ceased to exist by operation of the Forestry Amendment (Forestry Corporation) Act 1994 when that Act commenced on 1 July 1994. That Act also established the Forestry corporation. Pursuant to the Forestry Act 1920, s6(3), the Forestry corporation has designated "Forestry Tasmania" as its corporate name. The applicant says that upon the commencement of the Forestry Legislation (Transitional Provisions) Act 1994 on 1 July 1994 that Act, ss15(3) and 18 vested the Forestry corporation with responsibility for such causes of action as he can establish against the Commission or the Crown. Section 15(3) is as follows:
"Legal proceedings by or against the Commission or Crown to enforce a right that had accrued, and was in existence, immediately before the commencement day under the Former Act may be commenced by or against the Forestry corporation."
Such causes of action as the applicant can establish against the Commission or the Crown referable to his accident accrued before the commencement day, 1 July 1994. This is not disputed by the respondent. What the respondent says is that the applicant's causes of action are not rights that had accrued "under the former Act", that is, the Forestry Act 1920 as in force before 1 July 1994. As I understand the respondent's submission, it is contended that for a right to accrue under the former Act it must be a right created by that Act such as a right under a permit, licence or timber concession. I can see no reason for so confining the scope of s15(3). The evident purpose of the provision is to ensure that those who had a right of action against the Commission or the Crown under the Forestry Act could, once the Commission had gone out of existence, pursue that right of action against the Forestry corporation. Such a provision should be construed as widely as its terms permit; Crimmins v Stevedoring Industry Finance Committee (supra), Gaudron J, par14 and McHugh J, par142. See also Gleeson CJ, par3, Kirby J, par196 and Callinan J at par368. The causes of action asserted by the applicant relate to the work he was requested to do. He was called on to do that work for the Commission as a direct consequence of its obligation to carry out and perform "the powers, authorities, duties and functions of the Department … on behalf of the Crown"; Forestry Act 1920, s9(1). Those functions include the "thinning of forests", the Forestry Act, s7(2)(c), the activity the applicant was engaged in at the time of his accident. In these circumstances, I am satisfied that the applicant's engagement in that activity arose from the obligations placed on the Commission by the Forestry Act and such rights as he has against the Commission and the Crown, on whose behalf the Commission was acting, can properly be categorised as having accrued under the Forestry Act. That being so, the Forestry corporation has been properly named as a defendant to the applicant's writ. For the purposes of the application before me, it is accordingly not necessary to deal with the Forestry Legislation (Transitional Provisions) Act, s18, which the applicant says also renders the Forestry corporation responsible for the breaches he asserts.
At the time of the applicant's fall he was thinning trees in the Commission's pine plantation at Oldina. The portion of the plantation in which he was working was on an embankment. The trees had been planted in rows which ran across the face of the embankment. The applicant was working his way along a row of trees using a chain saw to cut down those that needed to be thinned out. As the applicant was walking across the embankment carrying his chain saw he slipped and fell, landing heavily on his tail bone. He says he fell because of the steep slope and loose ground conditions. He immediately felt considerable pain in the region of his lower back and tail bone. He completed his shift, notified his supervisor of the fall, and filled out an application for workers compensation. He attended work the next day, but after a short time found he could not continue because of back pain. He consulted a doctor and was off work for four days. He received workers compensation for the period of his absence.
Following the fall the applicant continued to suffer back pain; however, he expected to totally recover in time. In 1995 he needed physiotherapy for a troublesome shoulder. In the course of receiving that treatment he also obtained back treatment on about three occasions. He made no claim for workers compensation in relation to that treatment.
In April 1997, the applicant again found it necessary to seek treatment for his back. His general practitioner gave him a reference for physiotherapy. In about August 1997 he needed more physiotherapy on his back and was placed on light duties for a week or so. The Commission arranged for him to be examined by Mr P S H Browne, an orthopaedic surgeon. In his report dated 17 December 1997, Mr Browne advised the Commission:
"OPINION AND PROGNOSIS
I consider that Mr Cooper may well have developed back pain at work in the manner in which he describes as occurring in March of 1994. Since then he has had persistent low grade symptoms which have become worse in the past 12 months. Recently these symptoms have been such as to impair his work efficiency."
Mr Browne recommended that further investigations be carried out on the applicant. Following x-rays and an MRI scan, Mr Browne provided the Commission with a report dated 4 February 1998 which included the following:
"I have now seen an X-Ray of Mr Cooper's dorsal and lumbar spine. This X-Ray shows that he has a mild lumber scoliosis with a compensatory dorsal scoliosis. He also has evidence of some degenerative change at the L3-4 and L4-5 levels of the lumbar spine.
An MRI scan performed on 30.1.98 shows evidence of degeneration and some disc bulging at the L3-4 and the L4-5 levels of the lumbar spine. It also shows evidence of minor facet joint arthritis at the L5-S1 level. A bone scan of 30.1.98 shows evidence only of some moderately increased uptake in the region of the right sacro-iliac joint consistent with osteo-arthritis.
I would consider therefore that Mr Cooper had a mild scoliosis of his spine since adolescence. He now has evidence of disc degeneration at two levels of his lumbar spine with some disc bulging at these levels. In my opinion this lesion in his lumbar spine is responsible for his present symptoms. He may well have damaged the intervertebral discs in his lumbar spine as a result of the fall in 1994. It is also possible that he developed these degenerative changes in his lumbar spine during his years of work as a labourer for Forestry Tasmania. I would consider that the predominant cause for his present back condition is his work for Forestry Tasmania.
Having such degenerative changes in his back (particularly at his young age of 29) I would recommend that he no longer works as a labourer doing the work he has been doing for Forestry Tasmania. I would recommend that he is retrained for either light bench work or clerical duties.
I would answer your particular questions as listed in your letter of 10.12.97 as follows:-
1 Mr Cooper made complaints of pain and disablement and there are abnormalities shown on X-Ray and MRI scan to support his complaints.
2 His complaints are reasonable and there are abnormalities shown on X-Ray and MRI scan to support his complaints.
3 I consider that Mr Cooper has had an impairment of his back of some 25 per cent (total body impairment of some 15 per cent). In my opinion having such an impairment he is disabled from performing heavy and continual manual labouring work for Forestry Tasmania. It is my opinion that the greater portion of this assessment of permanent impairment is due to his work for Forestry Tasmania.
4 Mr Cooper is no longer fit for heavy manual labouring as stated above. He is not fit for work which involves repeated bending or twisting movements of the back. He is not fit for work involving driving of vibrating machinery or driving on rough and irregular terrain."
Upon receiving this report, the Commission put the applicant on light duties and raised retraining options with him with a view to having him do non-manual work. This development, coupled with the applicant's realisation that his back was not going to recover, prompted him, in July 1998, to approach a union official about his rights. He was referred to a lawyer whom he consulted on 9 July 1998. She advised him of his common law rights, the three year limitation period and the need for him to apply to the court for an extension of time if he wished to pursue a common law action. She requested him to obtain further information relevant to the prospects of his claim, including details of the extent of the slope of the ground where he fell and prepared written advice which she provided to the applicant. He instructed her to institute common law proceedings on 5 October 1998. There was a delay of about a month in the institution of proceedings whilst further information in relation to the applicant's fall was obtained from the Commission's workers compensation file.
The applicant's writ is 20 months out of time. His delay in investigating his legal rights and instituting proceedings is, in my view, explicable. He was aware of his entitlement to workers compensation referable to his injuries and he did all he had to for the purposes of claiming the same. His delay in further investigating his rights was not the result of indifference or a wilful disregard to an obvious entitlement. He expected to recover from his injuries and was not prompted to investigate his rights until his injuries threatened his future employment. He then acted reasonably promptly in instituting proceedings.
When the applicant lodged a workers compensation claim with the Commission in relation to his fall, Mr K A Nichols, a senior technical forester, investigated what had occurred. Shortly after the applicant's return to work he accompanied Mr Nichols to the scene of the accident and pointed out where he fell. Using an inclinometer, Mr Nichols measured the slope at the site of the fall at 74 per cent, that is, 36.5 degrees. Mr Nichols is experienced in the use an inclinometer. The result he obtained was in line with his expectations based on his observations at the scene. An inclinometer is a small, matchbox sized device comprised of a weighted wheel held vertically within a non-magnetic housing. It acts as a plumb-bob, and must be aimed at a point, the same height above the ground as the operator's eye, in order for the reading to be accurate. It measures the slope by reference to a percentage gradient. A vertical rise of 100 units over a horizontal length of 100 units is a 100 per cent gradient. A vertical rise of 74 units over a horizontal length of 100 units is a 74 per cent gradient. Converted to degrees, a gradient of 100 per cent is 45 degrees, that is the angle of the hypotenuse (slope) to the horizontal length.
Mr Nichols prepared a written report on the accident, dated 11 March 1994, which includes the following.
"Subject: Stephen Cooper Accident 1/3/94
Accident Report
Stephen Robert Cooper: Age 26
Oldina 28G
1/3/94
Location: See attached map
Employer: Forestry Commission
Outcome
Acute pain, lack of movement to lower back. Painful to move or bend.
Circumstances
Time: 4.30 Witness: Nil witness. Notified Norm Reeve when subject worked his way out of his row which was approximately 14.40 hrs. Equipment Details: 034 Stihl Chainsaw Owner: Forestry Commission Other Details: Was wearing: · Helmet/Ear Muffs
· Safety Visor
· Safety trousers & vest
· Safety Boots
· Bandage Tool Kit
Accident Details
The following as told to me by Stephen Cooper:
Stephen was walking across slope following his row while falling out unpruned trees (p radiata) to waste.
He subsequently stepped on loose rubble, fell awkwardly down the hill on the right hand side of his back side. He had a hold of his chainsaw (which was going) when he fell.
The slope was checked by myself (where he fell) and was measured at 74 per cent.
Factors Affecting Circumstances
Weather Conditions:
· sunny day, windy
· dry rubbly ground
· bush was rough in patches with approx medium density".
That Mr Nichols considered it appropriate to measure the gradient of the slope where the applicant fell indicates that the slope was perceived to be a causative factor in the fall. The actual gradient of the slope is an issue between the parties. The severity of the slope is a matter upon which the applicant relies in asserting breaches of duty. The applicant says it was well recognised that working on a significant slope constituted a danger and the Commission breached its duty of care towards him by requiring him to work on the slope without taking any action to minimise the risks of him performing that work. Matters referred to include failing to instruct him as to the wearing of appropriate footwear, that is, spiked boots, and failing to ensure that he was wearing the same; requiring him to work across the slope rather than up and down the slope and failing to give him any instructions on how to work on the slope with safety.
As to the slope on which the applicant fell, Mr Nichols said: "Although the area was reasonably easy to walk over, if walking along the side of the slope it was possible to occasionally slip on the ground". More generally, as to the danger of working on a significant slope, it is pertinent that at a meeting of staff on 20 May 1993, workers expressed concern about establishing pine plantations in steep areas because it was unsafe to work them. That concern was raised at subsequent meetings of the Commission's Occupational Health & Safety Committee. This led to Mr L Saurine, the District Forester in charge of the Murchison District, which includes the Oldina plantation, revising the policy on plantations in steep areas. The revised policy was to plant areas where the slope was greater than 50 per cent at a density which avoided the need for thinning and pruning work to be carried out and also that "steep pinches into watercourses" would be left unplanted. This revised policy was the subject of a memo issued by Mr L Saurine on 8 November 1993. Safety was only one of the factors which prompted the policy revision. There were also concerns that it was not economic to service plantations in steep areas.
Whilst steps were taken to avoid the risks associated with working in steep areas by revising the planting policy, no action was taken to avoid or minimise the risks of working in the Commission's existing plantations in steep areas, such as the plantation in which the applicant was working at the time of his fall.
The accuracy of Mr Nichols' measurement of the slope at the scene of the applicant's fall, at 74 per cent, is now disputed by the respondent. When Mr Nichols went to the scene of the fall he marked the point where it had occurred on a 1:10,000 scale map of the area. No marker was left at the scene of the accident to indicate where it had occurred. On 5 August 1999, Mr Nichols took Mr L C MacKenzie, a surveyor, to the place where he considered the accident had occurred. Mr MacKenzie carried out a series of measurements over an area of 30 metres by 30 metres and concluded that the maximum slope was less than 50 per cent, that is, 26.5 degrees and the slope at the place of the applicant's fall was less than 45 per cent.
On 12 November 1999, the applicant took Mr Ward, a surveyor, to the area where he considered he had fallen which was about 80 metres to the east of the location which had been examined by Mr MacKenzie. Mr Ward measured the range of the gradient of the land in the area at between 58.4 per cent and 75 per cent.
It is likely that growth of trees and other foliage, together with forest litter, changed the scene of the accident within a comparatively short time of its occurrence. In the absence of evidence of a marker or some distinctive feature at the accident site, I am not satisfied that either Mr Nichols or the applicant were able to identify with any precision the point at which the applicant fell when they separately returned to the scene over five years after its occurrence. Both of them referred to a gully as providing a guide as to where the accident occurred. I am unpersuaded that such a broad natural feature would, if correctly identified, enable either of them to do more than locate the approximate accident site. Similarly, I am of the view that the cross Mr Nichols marked on a 1:10,000 plan of the area could do no more than guide him to the general area of the accident.
What the evidence establishes is that in the vicinity of the area where the applicant was working at the time of his fall, the slope was between 32 per cent and 75 per cent. Within a few days of the accident Mr Nichols measured the slope at the site of the fall at 74 per cent. Whilst that measurement may be inaccurate, as it was made with an inclinometer, it accords with Mr Nichols' observation of the extent of the slope. From this evidence, I have no hesitation in concluding that the slope of a substantial part of the land in the vicinity of the fall was over 50 per cent and that it is likely that the slope where he fell exceeded 50 per cent.
At the time of the applicant's fall, he was wearing standard work boots with rubber soles and treads. He slipped on loose ground on a bare patch of soil. When giving evidence, the applicant was unable to recall whether he had been issued with spiked boots at the time of the accident. As to spiked boots, he said he only wore them in wet conditions as they were quite hard on his ankles. The conditions at the time of the applicant's fall were dry. The records of the Commission show that the applicant had been issued with spiked boots several years prior to the accident. It is apparent from the applicant's evidence that he gave no consideration to wearing spiked boots on the day of his fall.
Evidence was given by Mr G J Howard, who, until recently was the Training Manager at the Hollybank Forestry Centre; the forestry training centre for Tasmanian Forest Industries. He is a private occupational, health and safety consultant for the forest industry. As to avoiding the risk of workers slipping and falling when working on plantations established in steep areas, he said the options included:
· leaving the plantation, or relevant portion of the plantation, unthinned until final harvesting;
· ensuring that the work was performed by highly skilled and experienced workers using appropriate equipment, including wearing spiked boots; and
· carrying out the work up the slope rather than across the slope which is a less demanding task as it is safer to walk up a slope than across it.
He said that wearing rubber soled footwear provided poor stability when working on steep slopes and spiked boots gave a more stable footing. In his opinion, the applicant should have been required to wear spiked boots when performing the work he was undertaking. Mr Howard also queried the sufficiency of the applicant's experience for the work.
As referred to in par20, notwithstanding the Commission's recognition of the risks of working in plantations on steep slopes, it took no action to minimise that risk in relation to existing plantations. The applicant received no specific instructions or training in relation to working on steep slopes.
In Mr Howard's opinion the work being performed by the applicant could have been performed more safely if spiked boots had been worn. That opinion seems reasonable and is not controverted by the evidence before me. Had the applicant received appropriate training and instruction in relation to the wearing of spiked boots, it may be that his attitude to wearing them would have been different and he would have worn them on the day of the accident. Had this occurred, the accident may have been avoided. The accident may also have been avoided if the Commission had directed the applicant and his co-workers to thin the plantation by working up the slope rather than across it.
The applicant's employment required him at times to work unsupervised in remote areas. It is understandable that the Commission would not play an intrusive role, on a day to day basis, in the manner in which the applicant performed his work and the equipment he used. Often such matters are best left to the discretion of the worker, in the light of his experience and training. However, the applicant having been directed to undertake work which involved a known risk, it is not difficult to envisage that he may establish liability on the basis that the Commission should have attended to the sort of matters adverted to in par26 in order to alleviate the risk; Wyong Shire Council v Shirt (1979 - 1980) 146 CLR 40. In the absence of any alleviating action by the Commission, the applicant may establish liability against the respondent. His prospects in this regard are not so speculative as to warrant denying his application for an extension of time because he has not established a prima facie case.
The applicant's back disabilities are likely to jeopardise his future employment. If he can relate his back disabilities to his fall at work, he has a potentially substantial damages claim.
Evidence on the cause of the applicant's back disability is equivocal. In Mr Browne's opinion, the applicant may well have damaged the intervertebral discs in his lumbar spine in the fall. It is also possible that he developed the degenerative changes in his lumbar spine during his years of work. In Mr Browne's opinion, this is the predominant cause for the applicant's present back condition.
The respondent says that it has been prejudiced by the applicant's delay. Particular reliance is placed on the difficulty of now establishing the place of the applicant's fall and the problem of identifying the actual cause of his back disability.
The point where the applicant fell was made known to the Commission within a few days of its occurrence when he directed Mr Nichols to it. I consider it unlikely that the parties can now identify the point at which the applicant fell with any certainty although they are able to locate the area of the plantation in the vicinity of his fall. In my view, there is no real prospect that the applicant's delay has caused the respondent prejudice in this regard. As no steps were taken to mark the point of the fall shortly after its occurrence, it is unlikely that it could have been relocated within a comparatively short time thereafter, due to foliage growth and other naturally occurring changes. The vicinity of the place of the fall can be located. The slope of the land in that vicinity is probably of more relevance to the safety of the system of work that was in operation than the slope at the precise point of the fall.
The evidence of the cause of the applicant's back disability being equivocal, it may be that better evidence of the causal relationship between the fall and the disability would have been available if the applicant had instituted common law proceedings within time or the respondent had received earlier notice of the common law claim. This is a matter of conjecture as are the conclusions that might have been drawn from any earlier medical investigations that may have been undertaken. I am quite unable to say whether the result of earlier medical investigations, if available, would have assisted the applicant or the respondent. Whilst the opportunity to pursue medical investigations at an earlier date has been lost, I am not persuaded that as a consequence the respondent is not able to fairly defend the proceedings, or that there is any significant chance that this is so, although I do not disregard presumptive prejudice; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555.
On reviewing my findings and paying particular regard to the explanation for the applicant's delay, his prospects of success, the potential quantum of his claim and prejudice, I am satisfied that the applicant has established that the justice of the case favours the granting of an extension of time. I will allow the application.
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