Coote v A R and G R Padgett Pty Ltd
[2004] TASSC 72
•7 July 2004
[2004] TASSC 72
CITATION: Coote v A R & G R Padgett Pty Ltd [2004] TASSC 72
PARTIES: COOTE, Graham
v
A R & G R PADGETT PTY LTD
WESLEY VALE ENGINEERING PTY LTD
FORESTRY TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 291/2001
DELIVERED ON: 7 July 2004
DELIVERED AT: Hobart
HEARING DATES: 20 - 23, 26, 27 April 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Torts – Negligence – Essentials of action for negligence – Standard of care – Particular persons and situations – Other cases – Forestry authority – Danger of tree dropping branch if not felled.
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, referred to.
Aust Dig Torts [49]
REPRESENTATION:
Counsel:
Plaintiff: K E Read
Third Defendant: D J Gunson SC and M D Duvnjak
Solicitors:
Plaintiff: Hilliard & Associates
Third Defendant: Gunson Williams
Judgment Number: [2004] TASSC 72
Number of Paragraphs: 58
Serial No 72/2004
File No 291/2001
GRAHAM COOTE v A R & G R PADGETT PTY LTD
WESLEY VALE ENGINEERING PTY LTD, FORESTRY TASMANIA
REASONS FOR DETERMINATION BLOW J
7 July 2004
On 14 September 1998, in the course of his work as a tree faller in a logging coupe in a State forest at Roses Tier in northern Tasmania, the plaintiff was hit by a branch that fell from a tree, and severely injured. As a result he is now a paraplegic. He brought this action claiming damages for breaches of statutory duty and negligence from four defendants. The first defendant, A R & G R Padgett Pty Ltd, is the company that engaged him to fell trees in that coupe. The second defendant, Wesley Vale Engineering Pty Ltd, had engaged the first defendant to harvest timber from the coupe. The third defendant, Forestry Tasmania, is a statutory corporation established by the Forestry Act 1920, s6(1). It had entered into a contract with North Broken Hill Ltd in 1995, pursuant to which that company was licensed to remove wood from areas of State forest, in consideration for which that company made payments of royalties to it. As at 14 September 1998, the second defendant was the assignee of that company's rights under that contract with the consent and knowledge of the third defendant. The fourth defendant was the State of Tasmania. The action was discontinued as against the fourth defendant at an early stage.
Each of the first, second and third defendants issued co-defendant notices against the other two, claiming indemnity or contribution. On 23 September 2002 Underwood J ordered that the question of liability in this action be determined separately from and before the question of quantum. In early 2004 the plaintiff reached a settlement with the first and second defendants, but not the third. As a result, a trial of the issues relating to liability between the plaintiff and the third defendant has proceeded. The third defendant has denied liability and pleaded contributory negligence on the part of the plaintiff.
The consequences of the plaintiff having settled with some, but not all, defendants are set out in the Wrongs Act 1954, s3(3), which reads as follows:
"(3) A release of, or accord with, one person granted or made by a person by whom damage is suffered ¾
(a)does not discharge another person unless the release so provides; and
(b)relieves the person to whom it is granted or with whom it is made from liability to make contribution to another person ¾
and has effect to reduce the claim of the person by whom damage is suffered ¾
(c)in the amount of the consideration paid for the release or accord;
(d)in any amount or proportion by which the release or accord provides that the total claim of that person shall be reduced; or
(e)to the extent that the person to or with whom the release or accord is granted or made would have been liable to make contribution to another person if the total claim of the person by whom damage is suffered had been paid by the other person ¾
whichever is the greatest."
Accordingly, the issues for determination in relation to liability are whether the third defendant is liable to the plaintiff and, if so, (a) whether there was contributory negligence on the part of the plaintiff; (b) whether the first defendant would have been liable to make contribution to the third defendant; (c) whether the second defendant would have been liable to make contribution to the third defendant; and (d) what apportionment of liability is just and equitable having regard to the extent of each party's responsibility for the damage.
The harvesting operation at the coupe where the plaintiff was injured was the subject of a timber harvesting plan approved under the Forest Practices Act 1985, s19. The plaintiff gave evidence, which I accept, to the effect that he understood that plan to prohibit him from felling pulpwood trees as readily as he ordinarily would. A pulpwood tree or pulp tree is a tree suitable only for pulping or woodchipping. Trees containing millable timber or sawlogs are referred to as sawlog trees or saw trees. Shortly before he was injured, the plaintiff felled two sawlog trees, each of which brushed against a third tree which contained the branch that later injured him. He had identified that third tree as a pulpwood tree. There was evidence that it was found at a later date to contain millable timber, but I will refer to it as "the pulp tree" because it was referred to in that way throughout the trial. Each of the two sawlog trees, when falling, damaged the pulp tree to such an extent that green branches were torn out of it. The plaintiff trimmed the fallen sawlog trees, and was walking towards a third sawlog tree, passing under the branches of the pulp tree, when one of those branches fell and hit him. He had looked to see whether there were any loose branches in the pulp tree, but had not detected any. He gave evidence, which I accept, that he would have liked to have felled the pulp tree before felling the two sawlog trees, but that he believed he was not allowed to fell it because of the provisions of the timber harvesting plan. A failure to comply with the timber harvesting plan would have been an offence contrary to the Forest Practices Act, s21(1). However I think the plaintiff was concerned with maintaining good relations with the first defendant ¾the company that engaged him ¾and with keeping his job, rather than with any possible prosecution.
The evidence establishes that timber harvesting plans routinely contain operation prescriptions or felling prescriptions that specify the types of harvesting operations to be undertaken. Some types of harvesting operations are fairly common. Clear felling is one well known type of harvesting operation, but there are also various types of partial harvesting operations. For example, regrowth retention operations, also known as advance growth retention operations, are often carried out in forests containing two or more age classes of established trees. The objective is to retain the regrowth or advance growth trees while harvesting all trees that are mature, defective or unnecessary for adequate stocking. The plaintiff gave evidence that he was familiar with this sort of operation. Another harvesting method, known as the shelterwood method, is sometimes used for stands where new regeneration requires initial protection from climatic extremes. The coupe where the plaintiff was injured is in an area that is prone to climatic extremes. It is mostly more than 800 metres above sea level, and it snows there. In a shelterwood retention harvest, all trees are felled other than those required to provide the shelterwood. The shelterwood, comprising about 30 per cent to 50 per cent of the overstorey, is retained to provide protection for a new regeneration crop. After a decade or so, when the mean height of the new crop is more than about 1.5 metres, the remaining overstorey is removed in a second harvest known as a shelterwood removal operation.
The timber harvesting plan for the coupe where the plaintiff was injured specified the operation prescription as "1 Overstorey Removal 2 Shelterwood ¾First Cut". It specified expected sawlog production as 2,850 cubic metres and expected pulpwood production as 3,000 cubic metres. This represented an unusually high proportion of sawlogs. The plan contained the following specifications as to felling:
"· This coupe is to be treated as a [sic] overstorey removal / shelterwood operation, however sawlog production is to be maximised. Trees in the shelterwood section are to be retained at a basal area of 12m2 [sic] or approximately one tree every two tree lengths. These trees retained are to be pulpwood quality.
·Category 2 & 8 sawlogs are to be maximised if markets exist.
·Remaining head logs are to be sold for pulp, however the aim of this operation is maximise sawlog production and minimise pulpwood.
·Sections that are high in pulpwood are not to be logged. These areas are to be treated at future harvesting operations.
·Direction from a Forest Officer will be supplied to help with selection.
·Habitat clumps are to be retained in high pulpwood sections.
·All trees that are considered to be un-safe [sic] by the contractor are to be removed.
·Sections of thinning areas to be excluded from logging are marked on the attached map, the Forest Officer will identify these patches to the faller. No falling of trees out of these areas.
·All regrowth of good form and vigour up to 60cm DBHOB [diameter breast height over bark] will be retained where possible."
There was nothing in the plan that expressly prohibited the felling of a pulp tree that, if not felled, was likely to be damaged by the felling of other trees to such an extent that green branches were likely to be torn out of it. However I infer that not felling a pulp tree in such a situation would have facilitated the maximisation of sawlog production and the minimisation of pulpwood production as reflected in the specified expected production figures of 2,850 cubic metres and 3,000 cubic metres for sawlogs and pulpwood respectively.
Most of the witnesses at the trial, if not all of them, gave evidence that sawlog maximisation was the objective of every harvesting operation. This is hardly surprising since millable timber is obviously of far greater value than pulpwood.
It is common ground that the plaintiff's injury could have been prevented by him felling the pulp tree before felling the two sawlog trees that collided with it. It is also common ground that the plaintiff had the right to fell any tree that he considered too much of a danger to leave standing, at least subject to any specific directions as to situations in which trees were not to be felled.
The plaintiff gave evidence that he spoke to Peter Johnstone, an officer of the third defendant, on the first morning that he worked at the coupe in question, about a month before he was injured. He said he spoke to Mr Johnstone about felling pulp trees, and that Mr Johnstone told him that another logging contractor was coming in to do that, and that only sawlogs were to be taken out. The plaintiff said he saw Mr Johnstone in the bush at that coupe on a number of occasions after that first day, and that every time Mr Johnstone would make sure that he was only taking sawlogs. He explained that pulpwood trees were felled for the purpose of installing landings and snig tracks, and whenever they were likely to be directly hit and smashed to pieces by a falling tree. He said that when a pulpwood tree was not going to get smashed to pieces, but was perhaps going to have a limb or two knocked off, he would fell alongside it. He said he would not remove pulp trees in that situation before felling sawlog trees near them because he was not allowed to take pulp trees. He gave evidence to the effect that he had never before been so restricted as to the taking of pulp trees. When asked to estimate what percentage of pulp trees were felled by him, he replied, "Probably about between 5 and maybe 10 per cent pulp trees, probably 5 per cent".
Mr Johnstone said he did not think he went to the coupe on the day logging commenced there, but that he did go there within a few days of the operation commencing. He said he discussed the timber harvesting plan with the plaintiff, and that he talked about tree selection with him on most occasions that he went there. He said they would basically talk about the type of tree that they were looking at taking out. He said that it was incorrect that he had directed the plaintiff not to fell any trees that were suitable for pulpwood in the coupe. However he was asked very little about what he said to the plaintiff. In particular, he was not asked to comment on the proposition that the plaintiff was, generally speaking, not allowed to take pulp trees, subject to exceptions when landings and snig tracks were being installed, and when a pulpwood tree was likely to be directly hit and smashed to pieces by a falling tree.
Mr Johnstone gave his evidence in a credible manner. The timber harvesting plan required the installation of landings and snig tracks in particular locations. The nature of the forest in the coupe was such that pulp trees would have to be felled in order to install landings and snig tracks. I infer that it was so obvious to those concerned with the harvesting operation, including Mr Johnstone and the plaintiff, that pulp trees would have to be felled where landings and snig tracks were to be installed, that that went without saying. Mr Johnstone and the plaintiff both seemed to me to be practical men, and men of reasonable intelligence. I do not think there was any real chance of a misunderstanding between them as to how readily Mr Johnstone wanted the plaintiff to fell pulp trees. There may have been some inaccuracy on the plaintiff's part in recounting what Mr Johnstone said to him on that subject. There may have been some inaccuracy on his part as to when his initial conversation with Mr Johnstone at the coupe in question occurred. But with those reservations, I accept the plaintiff's evidence as honest and generally reliable. Mr Johnstone may not have told him, in absolute terms, that he was not to fell any trees that were suitable for pulpwood in that coupe. However I am satisfied that Mr Johnstone did give the plaintiff a direction to the effect that he was not to fell pulp trees as he normally would; that the plaintiff rightly perceived Mr Johnstone's direction as prohibiting him from felling the pulp tree from which a branch ultimately fell and hit him; that when Mr Johnstone visited the plaintiff at the coupe from time to time, he did so for the purpose of checking that his direction was being complied with; and that the plaintiff rightly perceived that Mr Johnstone was supervising him with that purpose in mind. The plaintiff's evidence as to the circumstances in which he was and was not permitted to fell pulp trees is supported to some extent by the expected sawlog and pulpwood production figures in the timber harvesting plan, the specifications in that plan as quoted above that tend to emphasise the maximisation of sawlog production, and the fact that another contractor took over from the first defendant in the relevant coupe in May 2000.
On 25 August 1998 a representative of the second defendant, Mr Dargusch, visited the coupe and completed a forest operations report. He recorded that damage to retained trees was not within acceptable limits. He wrote, "Damage extensive due to falling prescription. Some trees potentially dangerous. Will be addressed by Dale Bramich by the end of this week." Dale Bramich was employed by the first defendant at the coupe as its bush boss. He was responsible for the supervision of the plaintiff's work. He gave evidence that the damaged trees referred to by Mr Dargusch were in an area where the plaintiff, but apparently no-one else, had been working. He said that the damage to the trees comprised "some limbs knocked out of trees, broken limbs, some butt damage". The butt damage may well have been caused by collisions involving logs being pulled by a skidder. However the limb damage must have resulted from the impact of trees felled by the plaintiff. Mr Bramich said that he felled the trees that Mr Dargusch drew attention to, but that he did not ever speak to the plaintiff about those trees that he could recall. I infer that the damage to those trees must have been obvious to any experienced forest worker who inspected the area they were in.
The plaintiff has pleaded three causes of action against the third defendant: one for breach of statutory duty based upon the Industrial Safety, Health, and Welfare (Forest Industries) Regulations 1990, reg11(1)(a); one for breach of statutory duty based upon the Workplace Health and Safety Act 1995, s9(4)(a); and one in negligence. I will deal with them in that order. For convenience, when I consider each of the legislative provisions I will also consider its applicability to the first and second defendants.
Industrial Safety, Health, and Welfare (Forest Industries) Regulations 1990
Regulation 11 of these regulations reads as follows:
"11 ¾ (1) A person engaged in a felling operation shall ¾
(a) take all practicable steps to ensure that the operation does not endanger the safety of any person; and
(b) ensure that if a chain saw is used the tree felling is carried out in accordance with Australian Standard No 2727 ¾ 1984 ¾ Chainsaws ¾ Guide to Safe Working Practices.
(2) A person who approaches an area where a felling operation is being carried out shall give reasonable warning of that approach to the area and shall not enter the area until that person has received a clear signal indicating that it is safe to enter.
(3) A person who has felled a tree shall take all necessary precautions to prevent that tree or a log from that tree from rolling or sliding onto a road, track or work area.
(4) A person who is carrying out a felling operation shall bring down trees that lodge together during that operation and shall not leave a standing tree partly cut through unless that person ¾
(a) takes steps to ensure that the tree or trees are felled as soon as practicable; and
(b) marks the tree in an approved manner; and
(c) warns other people of the dangerous situation.
(5) A person shall not supply to a sawmill a log which has an incomplete cross-cut at any point along its length."
The third defendant contends that it was not "engaged in a felling operation" within the meaning of reg11(1). The plaintiff contends that it was. The word "felling" was defined in reg3(1) to include "cutting, chopping, pushing and pulling down a standing tree or part of a standing tree or felling a tree with explosive". Obviously the plaintiff and the first defendant were engaged in a felling operation. The critical question is whether the third defendant was also engaged in it.
The first defendant undertook a harvesting operation which involved engaging the plaintiff and at least one other faller to cut down trees. The second defendant had a more tenuous connection with the felling of trees. It engaged the first defendant as a contractor to harvest the trees, and left it to the first defendant to engage workers. The third defendant had an even more tenuous connection with the felling of the trees. It granted a contractual licence that permitted the second defendant as the assignee of the original licensee to remove trees, or to cause them to be removed, in consideration of the making of royalty payments. It also exercised a degree of supervision over the first defendant's operations, apparently for the purpose of ensuring compliance with the timber harvesting plan.
The wording of reg11(1)(b) suggests that the author of the regulations intended that provision to apply only to an individual or entity capable of ensuring that a chainsaw was used in the manner required by the appropriate Australian Standard. The presence of reg11(1)(b) suggests that reg11(1) was not intended to apply to any entity more remote from the felling operation than an employer of a faller or a company that engaged a contract faller.
Regulation 11 is in Div3 of Pt2 of the regulations. That division deals with safety procedures. It comprises a number of regulations dealing with specific aspects of forest operations. Regulation 10 deals with warning signs, and applies to a person "who is engaged in a forest operation or who employs another person in that operation". Regulation 12 is concerned with snigging logs. Regulation 13 is concerned with log landings. Regulation 14 is concerned with loading and unloading logs. Regulation 15 is concerned with log carrying vehicles. Regulation 16 is concerned with the carrying of tools in vehicles. The very specific nature of each of these regulations suggests that they were not intended to apply to individuals or entities with no legal right directly and immediately to control the activities of forest workers.
In my view the interpretation contended for by the plaintiff would stretch the language of reg11(1) too far. In my view neither the second defendant nor the third defendant was a person engaged in a felling operation within the meaning of reg11(1). The plaintiff's claim against the third defendant for breach of statutory duty based on reg11(1) must fail.
Workplace Health and Safety Act 1995
At the relevant time the Workplace Health and Safety Act, s9(4) provided as follows:
"(4) At any workplace under the control or management of an employer who is a principal, that employer must ensure so far as is reasonably practicable that a contractor engaged to perform work for the employer in the course of the employer's business, and any person employed or engaged by the contractor to carry on or assist in carrying on that work, is safe from injury and risks to health and, in particular, must so far as is reasonably practicable ¾
(a)provide and maintain a safe working environment; and
(b)ensure that any contractor or person employed or engaged by the contractor is aware of the health and safety requirements of the workplace and that the contractor and any person employed or engaged by the contractor comply with those requirements.
Penalty: In the case of ¾
(a) a body corporate, a fine not exceeding 1 500 penalty units; or
(b) a natural person, a fine not exceeding 500 penalty units."
The following relevant definitions appeared in s3(1) of that Act at the relevant time:
'''contract of service' means ¾
(a)a contract under which a natural person is employed by another person; and
(b)a contract of apprenticeship; and
(c)a contract or agreement under which a natural person receives training in an occupation, a trade or a vocation from an employer;
'contractor' means a person engaged by any person (otherwise than as an employee) to perform work for gain or reward;
…
'employee' means a natural person who is employed under a contract of service and, in relation to any educational or other training establishment, includes any natural person who, as a student, uses hazardous substances or plant in that establishment;
…
'employer' means a person by whom an employee is employed under a contract of service;
…
'industry' means any industry, trade, business, undertaking, profession, calling, function, process or work in which persons are or were employed or engaged and includes the use of plant in an educational establishment;
…
'workplace' means any premises or place (including any mine, aircraft, vessel or vehicle) where an employee, contractor or self-employed person is or was employed or engaged in industry."
The evident purpose of s9(4) was to spread the burden of responsibility for industrial safety. The subsection applies equally in relation to the safety of employees and the safety of independent contractors. Further it applies not only to employer-principals that engage workers as independent contractors, but also to employer-principals one step removed from the workers, who engage intermediate contractors who in turn engage workers as employees or independent contractors. The plaintiff in this case was an independent contractor. He provided his own equipment, and arranged his own sickness and accident insurance. The first defendant did not deduct tax from his remuneration as if he were an employee, nor did it make any superannuation payments for his benefit. The second defendant engaged the first defendant as a contractor, and it in turn engaged the plaintiff as an independent contractor. The plaintiff's relationship with each of the first and second defendants satisfied the requirements of s9(4). Each of them was an employer. Each was therefore bound by s9(4) if it had the "control or management" of the relevant workplace ¾the coupe where the plaintiff was injured. The first defendant had the day to day control and management of the coupe. I therefore think it was bound by s9(4). However the second defendant had given over control and management of the coupe to the first defendant when it engaged it to harvest the timber from that coupe. I therefore am not satisfied that the second defendant was bound by s9(4).
The plaintiff contends that the third defendant was bound by s9(4)(a). The third defendant contends that it was not. It was so bound only if either the plaintiff or the first defendant was "a contractor engaged to perform work for the employer [the third defendant] in the course of the employer's business." It was not part of the third defendant's business to harvest trees for the benefit of the second defendant. That is what the first defendant and the plaintiff were doing. Their activities did not amount to work for the third defendant in the course of its business.
In my view it follows that s9(4)(a) did not apply to the third defendant, and that the plaintiff's claim against it for breach of statutory duty based on that provision must also fail.
Third defendant's duty of care
The functions of the third defendant are listed in the Forestry Act, s8(1). The list of functions in that subsection includes the following:
"(c)the exclusive management and control of ¾
(i) all State forests …; and
(ii) all forest products on State forests … including the processing, removal, selling or other disposition of those forest products; and
(iii) the establishment and tending of forests, and all forest operations, on State forests …".
Subject to the provisions of the timber harvesting plan, I think that s8(1)(c) gave the third defendant the power to control the way in which the plaintiff did his work as a faller in a State forest. Although there was certainly no employment relationship between them, I think the third defendant had about as much power to control how the plaintiff did his work as an employer has to control how its employees do their work. The third defendant was able to exercise that power of control by sending Mr Johnstone to supervise and direct the plaintiff's work. Officers of the third defendant were well aware that harvesting operations were being undertaken in the area of State forest where the plaintiff was injured. Timber harvesting operations involve risks not only of injuries being caused as the harvested trees fall, but also of injuries being caused when severed branches later fall from trees. Such branches are known in the forest industry as "widow makers". It follows that it was reasonably foreseeable on the part of the third defendant that someone involved in felling trees in the course of the harvesting operations in question might be injured if reasonable care was not taken in the carrying out of those operations, and in the third defendant's supervision, management and control of them.
There are a number of recent High Court decisions as to when a duty of care is owed for the purposes of the law of negligence, none of which contains a precise definition of the circumstances that will or will not give rise to a duty of care. The relevant decisions include PyreneesShire Council v Day (1998) 192 CLR 330; Brodie v Singleton Shire Council (2001) 206 CLR 512; Sullivan v Moody (2001) 207 CLR 562; and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. In my view it is not necessary to discuss any case other than Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1. In that case the High Court held that the Australian Stevedoring Industry Authority had owed a duty of care to waterside workers who had been employed not by it but by various stevedores. That authority had statutory responsibilities for safety on the waterfront, whereas the third defendant has no corresponding safety responsibilities. However I do not think Crimmins should be distinguished on that basis. Both in that case and in this case, it was reasonably foreseeable that, if the statutory authority in question failed to perform its functions with reasonable care, workers would be at risk of suffering injury. Like the authority in Crimmins, the third defendant had or should have had knowledge of the special risks to which workers in the relevant industry were subject, and was in a position to exercise its statutory powers so as to minimise those risks. As in Crimmins, there was nothing in the relevant legislation negativing the existence of a common law duty of care. It must follow that the third defendant owed the plaintiff a duty to take reasonable care for his safety in its supervision, management and control of the timber harvesting operations in which he was engaged.
Breach of the third defendant's duty of care
The allegations of negligence particularised in the statement of claim, excluding those abandoned before or during the trial, were that the third defendant:
"aFailed to provide any or any adequate training or instruction to the Plaintiff as to the following:-
I How to best fall a tree in a selective logging operation so as to avoid damaging trees left standing.
…
IV How long to remain out of the fall line of a standing tree after that tree had been struck or brushed by a falling tree.
V The need to fall into gaps not into other trees.
VI The need to carry wedges and how to use wedges to assist in the directional falling of trees in a selective logging operation.
VII How to assess which trees posed a potential danger and to fall those trees first.
VIII Where to start falling trees on a coupe so as to maximise the potential for falling into gaps.
bFailed to supervise or adequately supervise the Plaintiff in his task as a faller.
cFailed to prevent the Plaintiff from continuing to fall trees on the coupe until he was adequately trained and instructed as to each of the matter [sic] set out in paragraph a hereof.
…
fRequired and/or permitted the Plaintiff to work in a selective logging operation when he did not have sufficient experience to adequately ensure his own safety.
gProvided a timber harvesting plan requiring selective logging when the nature of the block made the risk of injury from such an operation unreasonable.
hFailed to direct that the coupe be clear felled.
iFailed to direct that trees fit for pulp be felled and stored until market demand rose."
A number of these allegations have no merit at all. As to (i) the only evidence as to market demand was that there was a market for pulp wood at the time of the plaintiff's injury, and that it did not need to be stockpiled as it was at times when there was no such market. As to (g) and (h), the evidence establishes that selective logging of the coupe in question would have been reasonably safe provided all pulpwood trees likely to have branches torn out of them by trees being felled were first felled themselves in order to avoid the risk of someone being injured in the way that the plaintiff was injured. As to (f), the evidence establishes that the plaintiff had sufficient experience to ensure his own safety adequately. His experience suggested that he should have felled the pulp tree, but his perception of the third defendant's requirements led him not to fell it. The fact that he walked under it was not the result of any lack of experience. Subparagraphs (a) and (c) each alleged a lack of adequate training and a lack of adequate instruction. So far as training is concerned, the evidence establishes that the plaintiff was a very experienced worker, and that he did not need any additional training. There was no need for the plaintiff to be given any instruction as to items I, IV, V, VI or VIII of subpar(a), since he already had adequate knowledge of all of those matters. The same applies to the first part of item VII in subpar(a): the plaintiff already knew how to assess which trees posed a potential danger, and needed no further instruction as to how to make such assessments.
However I do see merit in the few remaining parts of the particulars set out above. As to the second part of item VII in subpar(a), I see merit in the allegation that the third defendant was negligent in failing to provide any instruction to the plaintiff to fall first those trees that posed a potential danger. Insofar as the allegation of lack of supervision in subpar(b) relates to the felling of trees which posed a potential danger, I think that allegation also has merit. There is also merit in subpar(c), to the extent that it alleges that the plaintiff should not have been allowed to continue working until he was instructed to fall first those trees that posed a potential danger.
On the basis of the plaintiff's evidence, I find that Mr Johnstone regularly supervised the plaintiff's work, and gave him instructions to the effect that he was not to fell pulp trees as readily as he ordinarily would. I find that the plaintiff's decision not to fell the pulp tree was consistent with obedience to Mr Johnstone's instructions. Because of the instructions given by Mr Johnstone to the plaintiff, and because of the obvious damage observed by Mr Dargusch in the area where the plaintiff had earlier worked, it was reasonably foreseeable that a worker in the coupe might be injured by a falling branch if the plaintiff continued to leave standing pulp trees that had been damaged by trees that he felled.
A falling branch or "widow maker" is capable of causing death or severe injury. The evidence of the plaintiff and other witnesses experienced in forestry work satisfies me that it was by no means unusual for branches to fall from trees that had been damaged. Little or no expense or difficulty would have been involved in the plaintiff felling pulpwood trees that were likely to be damaged by falling sawlog trees. The first defendant would have ended up with a higher proportion of pulpwood while still having to pay the plaintiff the same hourly rate, but Mr Bramich would have been spared the possible task of later felling dangerous trees that was imposed on him by Mr Dargusch. There was no need to retain damaged trees for shelterwood purposes. In those circumstances, the only reasonable response to the foreseeable risk of injury was to require the fallers working in the coupe, including the plaintiff, to fell all pulpwood trees that were likely to have limbs torn out of them by other falling trees prior to felling those other trees.
I find that the third defendant was negligent in failing to instruct the plaintiff to fell first any trees that potentially posed a danger in that way, and in failing, through supervision, to ensure that he did so. I find that these breaches of duty caused the injury to the plaintiff since they resulted in him not felling the pulpwood tree, felling other trees in such positions that they hit the pulpwood tree, the dislodging of a branch when those trees were felled, the later falling of that branch, and its collision with the plaintiff.
Contributory negligence
The plaintiff was alert to the risk that there might be a loose branch in the pulp tree, and that such a branch might fall and hit him. He wanted to walk to another sawlog tree, on the far side of the pulp tree from him. For the sake of his own safety, he looked to see whether there were any loose branches in the pulp tree, but did not detect any. He walked under the pulpwood tree in order to take a fairly direct route to his destination. He could easily have taken a less direct route to his destination and not walked under the branches of that tree. Other witnesses with substantial experience in forestry work gave evidence to the effect that walking under a tree in such a situation would ordinarily be considered unsafe. There was evidence that a number of workers had stood under the tree on the day the plaintiff was injured, just after he was taken away in an ambulance. The skidder driver who had been working with the plaintiff did not think that the risk of a falling branch was anything to be concerned about. However I accept the evidence of those witnesses who expressed a contrary view. In my view the act of walking under the tree only minutes after it had been hit by two falling trees went beyond misjudgement and inadvertence, and amounted to contributory negligence. The plaintiff failed to take reasonable care for his own safety.
Less significantly, I think the plaintiff was also negligent in failing to fell the pulpwood tree. Despite the directions that I have found that Mr Johnstone gave, I think the only reasonable course was for him to have defied Mr Johnstone and felled that tree for the sake of his own safety.
Liability of the first defendant to make contribution
I need to determine whether the first defendant would have been liable to make contribution to the third defendant if the total claim of the plaintiff had been paid by the third defendant: Wrongs Act, s3(3)(e). I therefore need to consider whether such a liability for contribution would have arisen under the Wrongs Act, s3(1)(c), which reads as follows:
"3 ¾ (1) Where damage is suffered by a person as the result of a wrongful act ¾
…(c) a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable".
So far as the final words of s3(1)(c) are concerned, there is no suggestion that the first defendant was entitled to be indemnified by the third defendant. Further, it is clear that any liability on the part of the first defendant would have been in respect of the same damage as that for which the third defendant is liable, namely the damage suffered by the plaintiff as a result of being hit by the falling branch. The critical question is whether the first defendant was liable in respect of that damage. The plaintiff pleaded causes of action against the first defendant in negligence and breach of statutory duty, relying on the Workplace Health and Safety Act, s9(4)(a) and (5), and the Industrial Safety, Health, and Welfare (Forests Industries) Regulations, reg11. However the causes of action relied upon by the third defendant in its co-defendant notice against the first defendant were somewhat different. It pleaded negligence and breach of statutory duty, relying on the Workplace Health and Safety Act, ss9(4)(a) and 15, but it did not rely on s9(5) of that Act, nor on the Industrial Safety, Health, and Welfare (Forests Industries) Regulations.
I think that all of the provisions I have referred to, when applicable, give rise to causes of action in tort, since they all relate to industrial safety. The relevant principle was stated by Dixon J in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478 in the following terms:
"… I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears."
No contrary intention appears in relation to any of the relevant pieces of legislation.
My earlier findings led to the conclusion that the first defendant had a duty under the Workplace Health and Safety Act, s9(4)(a) to ensure, so far as was reasonably practicable, that the plaintiff was safe from injury and risks to health and, in particular, so far as was reasonably practicable, to provide and maintain a safe working environment.
At least after the report of Mr Dargusch and the felling of trees in accordance with that report, Mr Bramich, a director of the first defendant, must have been aware that the plaintiff was not felling pulpwood trees that were likely to have limbs torn out of them by other trees that he felled. That practice made the plaintiff's working environment unsafe, since there was a serious risk that he might be injured by a falling branch. It was therefore the first defendant's statutory duty to ensure that the plaintiff ceased following the practice of not felling pulpwood trees in such circumstances. Mr Bramich or some other officer of the first defendant should have discharged that duty by instructing the plaintiff to fell pulpwood trees in such circumstances, or, if he was unwilling to comply with such a direction, by stopping him from working. Neither of those courses was taken. The first defendant therefore breached the statutory duty that it owed the plaintiff under s9(4)(a).
At the relevant time the Workplace Health and Safety Act, s9(5) read as follows:
"(5) An employer must not allow a contractor engaged by the employer or any person employed or engaged by that contractor to carry on work for the employer at the employer's workplace in a manner which the employer reasonably believes would place at risk the health or safety of any person.
Penalty:
In the case of ¾
(a)a body corporate, a fine not exceeding 1 500 penalty units; or
(b)a natural person, a fine not exceeding 500 penalty units."
It was the duty of the first defendant not to allow the plaintiff, a contractor engaged by it, to carry on work for it at its workplace, the coupe, in a manner which it reasonably believed would place the plaintiff's health or safety at risk. The manner in which the plaintiff was doing his work was one that did place his health and safety at risk, but it does not necessarily follow that the first defendant believed that that was so. I do not have any evidence that Mr Bramich or any other officer of the first defendant believed that the manner in which the plaintiff was working placed his health or safety at risk, and I am not prepared to infer that there was any such perception. I am therefore not satisfied that the first defendant breached the statutory duty imposed by s9(5).
As I have said, the third defendant pleaded the Workplace Health and Safety Act, s15 in the relevant co-defendant notice. At the relevant time, that section read as follows:
"15 ¾ (1) A person who has control of any premises, plant, substance or temporary public stand to which subsection (2) applies must ensure so far as is reasonably practicable that the premises and the means of access to or egress from the premises, or the plant, substance or temporary public stand are safe and without risk to health and safety.
Penalty:
In the case of ¾
(a) a body corporate, a fine not exceeding 1 500 penalty units; and
(b) a natural person, a fine not exceeding 500 penalty units.
(2) This subsection applies to ¾
(a)premises which have been made available to persons, other than employees of the person in control of the premises, as a workplace or the means of access to or egress from those premises; and
(b)any plant, substance or temporary public stand which has been provided for the use or operation of persons at a workplace, other than employees of the person in control of that plant, substance or temporary public stand."
The coupe amounted to premises of which the first defendant had control. The premises had been made available to the plaintiff, who was not an employee of the first defendant, as a workplace. The first defendant therefore had a duty under s15(1) to ensure so far as was reasonably practicable that the coupe was safe and without risk to health and safety. It failed to discharge that duty by failing to ensure that the plaintiff either adopted a practice of felling pulpwood trees that would otherwise be likely to have limbs torn out of them by other trees that he felled or, if he would not follow such a practice, was prevented from working in the coupe.
As I have said, the first defendant was a person engaged in a felling operation for the purposes of the Industrial Safety, Health, and Welfare (Forest Industries) Regulations, reg11(1)(a). It was therefore the first defendant's duty to take all practicable steps to ensure that the felling operation did not endanger the safety of any person. That duty required it to instruct the plaintiff to adopt a practice of felling pulpwood trees that would otherwise be likely to have branches torn out of them by other trees that he felled or, if he would not follow such a practice, to prevent him from working in the coupe. I find that it breached the duty imposed by reg11(1)(a).
I think it is clear that the first defendant owed the plaintiff a duty of care, requiring it to take reasonable care for the plaintiff's safety while working at the coupe. It had the day to day control of the coupe and the harvesting operation. It was reasonably foreseeable that the plaintiff could be injured by a falling branch. In my view, a reasonable contractor in the position of the first defendant would have directed the plaintiff to adopt a practice of felling pulpwood trees that would otherwise be likely to have branches torn out of them by other trees that he felled or, if he would not follow such a practice, to prevent him working in the coupe. I find that the first defendant breached its duty of care to the plaintiff by not taking such a course.
The plaintiff's injury resulted from the first defendant's breaches of ss9(4)(a) and 15, reg11(1)(a) and its duty of care in tort. Had the plaintiff's claim against it not been compromised, and had the total claim of the plaintiff been paid by the third defendant, it would have been liable to make contribution to the third defendant.
Liability of the second defendant to make contribution
The second defendant did not have the day to day control of the coupe or the harvesting operation. It had engaged the first defendant to carry out the harvesting operation for it. It instituted a system whereby the coupe was regularly inspected, at least monthly, if not fortnightly. The report by Mr Dargusch was the product of an inspection in accordance with that policy. Mr Dargusch detected that unsafe trees were being left standing, and arranged for remedial action to be taken to eliminate the safety hazard that he had detected.
In my view the second defendant did not owe the plaintiff a duty of care at common law. They were not in a relationship of proximity such as to give rise to such a duty of care. Even if they were, any duty of care would have been discharged by the institution of the system of inspections and the carrying out of the inspection by Mr Dargusch whereby the unsafe trees were detected and a director of the first defendant was spoken to about them.
In my view the second defendant was not engaged in a felling operation within the meaning of reg11(1)(a). It engaged the first defendant to carry out the felling operation instead of engaging in that operation itself.
Once again, the third defendant relied in its co-defendant notice against the second defendant on the Workplace Health and Safety Act, ss9(4)(a) and 15. Those provisions did not apply because the coupe was not under the control or management of the second defendant. Even if it was, any duty imposed by s9(4)(a) or s15 would have been discharged by the institution of the system of inspections and the implementation of that system as already described.
It follows that the second defendant would not have been liable to make contribution to the third defendant under any circumstances.
Apportionment of liability
The parties who were responsible for the relevant damage were the plaintiff, the first defendant, and the third defendant. It is necessary to determine what apportionment of liability is just and equitable having regard to the extent of the responsibility of each of them for that damage.
The plaintiff was not the master of the situation. Under ordinary circumstances he would have felled the pulp tree. He did not fell it because of the directions of the third defendant's officer, Mr Johnstone. I therefore think very little responsibility for the damage attaches to him for not felling it. It was against his better judgment that he left it standing. He went a long way towards discharging his duty to take reasonable care for his own safety by not walking under the tree within 20 minutes of it being hit, and by looking at the tree to see whether there were any obvious unsafe branches before walking under it. Evidence from one of the witnesses, Mr Howard, satisfies me that the damage to the branch that fell could not have been seen by the plaintiff from where he was. His negligence was only marginally worse than inadvertence or misjudgement, in my view.
The third defendant was the master of the situation. Under the Forestry Act, s8(1)(c), it had the "exclusive management and control" of the State forest. It was what the third defendant's Mr Johnstone ¾not any of the first defendant's men ¾said to the plaintiff that led him not to fell the pulp tree. No-one was in a better position than the third defendant to know the dangers involved in imposing or tolerating a practice whereby such trees were left standing.
The first defendant was in breach of its common law duty and its statutory duties. I do not think it makes any difference to its culpability that reg11(1)(a) was not relied upon in the relevant co-defendant notice. It had day to day control of the situation. Its director and bush boss, Mr Bramich, was well aware that the plaintiff had too readily been leaving trees standing, but had refrained from saying anything to him. It may well be that Mr Johnstone or some other officer of the third defendant gave the first defendant a direction to the effect that pulp trees were not to be harvested if they were likely to have limbs torn out of them but not be directly hit by trees that were to be felled. There was no evidence either way as to whether such a direction was given, and I am not able to make a finding as to whether one was given However compliance with any such direction would have involved breaching the law, ie, the contravention of ss9(4)(a) and 15 and reg11(1)(a). I therefore think the question whether such a direction was given is not a significant one.
Having regard to the factors I have mentioned, I think it just and equitable that the plaintiff should bear one sixth of the responsibility for the damage, the third defendant one half, and the first defendant one third. For the purposes of the Wrongs Act, s3(3)(e), if the total claim of the plaintiff (ie, five sixths of his damages) had been paid by the third defendant, the first defendant would have been liable to contribute two fifths of the amount paid by the third defendant.
Conclusion
I determine (a) that the plaintiff was injured as a result of the third defendant's negligence; (b) that the damages recoverable in respect of the plaintiff's damage shall be reduced by one sixth; (c) that, for the purposes of the Wrongs Act, s3(3)(e), the extent to which the first defendant would have been liable to make contribution to the third defendant if the total claim of the plaintiff had been paid by the third defendant is two fifths; and (d) the extent to which the second defendant would have been liable to make contribution to the third defendant if the total claim of the plaintiff had been paid by the third defendant is nil.
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