Cox v Mcmahon Services Pty Ltd No. DCCIV-98-26

COX v McMAHON SERVICES PTY. LTD.
[2000] SADC 43

Civil Jurisdiction
His Honour Judge David

The plaintiff claims damages for personal injury against the defendant in relation to a work accident which occurred on the 13th January 1995. The accident occurred while the plaintiff was working on the roof of a building at the DSTO (Defence Science and Technology Organisation) site at Salisbury. He was engaged in the process of removing asbestos sheets from the roof above the verandah of a canteen at that site when he fell through the asbestos sheeting to the ground and suffered personal injuries. At the time the plaintiff was employed by Extraman Pty Ltd as a labourer and was on hire to the defendant Company to work at the Salisbury site. He claims that the defendant Company was negligent in failing to ensure a safe system of work.
As a result of the injuries which he received the plaintiff received compensation from Extraman Pty Ltd (his employers at the time) pursuant to the Workers Rehabilitation and Compensation Act 1986. It is now argued by the defendant in this action that the defendant was the employer of the plaintiff at the time of the accident and therefore he is barred from making a claim for personal injuries at common law by virtue of Section 54(1) of the Workers Rehabilitation and Compensation Act. If the defendant is right then the present claim fails from the start. It is to that preliminary question that I now turn.
It is undisputed that at the time of the accident the plaintiff was employed by Extraman Pty Ltd. There was undisputed evidence led from a Director of that Company, Mr. Ian Stasinowsky, that Extraman Pty Ltd was a contract labour company that supplied labourers to building construction areas. One of their clients was the defendant Company. The plaintiff was employed by Extraman Pty Ltd from January 1995 and obtained work through that Company. The system in place at the time was that when a client company needed workers they would phone Mr. Stasinowsky who would contact the worker and arrange for him to go to the appropriate site. Extraman Pty Ltd provided the necessary equipment, although if asbestos suits were to be worn that would be the responsibility of the defendant because of the specialist nature of that type of work. The relationship between Extraman Pty Ltd and their employees was that they would be employed on a casual basis for the first week and then would be employed full time. Prior to the accident the plaintiff had been employed for two weeks. If there was no work available it was Extraman’s responsibility to pay the worker even thought he wasn’t working. Extraman Pty Ltd would adhere to the terms of the appropriate Award and would ensure that Union dues were paid and would deduct from the worker’s wage income tax, payroll tax, long service leave and superannuation. It also paid the workers compensation levies. The workers of Extraman Pty Ltd were also given timesheets to complete during the course of their duties with the company to which they were hired. Extraman Pty Ltd would then pay in accordance with those records and would bill the company to whom the workers were hired also in accordance with those records and with the arrangement between Extraman Pty Ltd and that company. If there was no work available to any of its employees Extraman Pty Ltd had to pay severance pay in accordance with Award provisions.
There was also uncontradictory evidence that the plaintiff would attend the worksite at DSTO in accordance with a direction from the defendant and would work under the defendant’s supervision. However the wages of the plaintiff were not paid by the defendant, he could not be dismissed by the defendant and responsibilities for workers compensation belonged with Extraman Pty Ltd and not the defendant.
The defendant argues that nevertheless pursuant to certain provisions of the Workers Rehabilitation and Compensation Act 1986 although employed by Extraman Pty Ltd the plaintiff at the time of the accident was also in an extended sense employed by the defendant. Consequently it is argued that pursuant to Section 54(1) of the Act there can be no claim at common law by the plaintiff against the defendant. I set out the relevant provisions:-
“By s 3(1) of the Act, “employment” is defined as follows:
‘employment’ includes-
(a).... work done under a contract of service;
(b)the work of a self-employed person to whom the Corporation has extended the protection of this Act;
(c).... the work of persons of whom the Crown is, under section 103A, the presumptive employer;
(d)the attendance by a worker at a place of pick-up;”
It is only sub-paragraph (a) of the definition that is relevant.
By the same section “employer” is defined as follows:
‘employer’ means-
(a).... a person by whom a worker is employed under a contract of service, or for whom work is done by a worker under a contract of service;”
The other sub-paragraphs are not relevant.
“Contract of service” is defined in s 3(1) as follows:
‘contract of service’ means-
(a).... a contract under which one person (the worker) is employed by another (the employer);
(b)a contract, arrangement or understanding under which one person (the worker) works for another (the employer) in prescribed work or work of a prescribed class;
(c).... a contract of apprenticeship;
(d)a contract, arrangement or understanding under which a person (the worker)-
(i).... received on-the-job training in a trade or vocation from another (the employer); and
(ii) is during the period of that training remunerated by the employer;”

The defendant argues that it was an employer of the plaintiff by virtue of the fact that the plaintiff did work for the defendant under a Contract of Service. It is argued that under the definition of Contract of Service the relationship between the plaintiff and the defendant amounts to a Contract of Service pursuant to paragraph (b) namely “a contract, arrangement or understanding under which one person (the worker) works for another (the employer) in prescribed work or work of a prescribed class”. It is agreed that there is no Contract of Service pursuant to paragraph (a) and it is also agreed that when analysing paragraph (b) the work that was done by the plaintiff for the defendant is “prescribed work or work of a prescribed class”. The decision I have to make is therefore was there a Contract of Service between the parties pursuant to paragraph (b) of the definition of Contract of Service. I now turn to that question.
The defendant argued that although Extraman Pty Ltd was the employer of the plaintiff at the time and although there was not a Contract of Service within the meaning of paragraph (a) of the definition nevertheless because the plaintiff was doing prescribed work for the defendant there is a Contract of Service under the extended definition set out in paragraph (b). It is put, in my view correctly, that under the definition of Contract of Service paragraphs (a), (b), (c) and (d) are all alternatives. The plaintiff argued that even under the extended definition there is no contract, arrangement or understanding between the plaintiff and the defendant whereby the plaintiff was working for the defendant. On the contrary it is argued that the “contract, arrangement or understanding” was between Extraman Pty Ltd and the defendant.
The Full Court of the Workers Compensation Tribunal considered this question in York Civil Pty Ltd v Workers Rehabilitation and Compensation Corporation (Action No. 322 of 1995). In that case the appellant was sued by one Ahern at common law. Ahern was doing building work for them at the time and similar to the present case that was held to be “prescribed” work. Ahern was supplied to the appellant through a labour hire company. In that case it was argued that the appellant was the employer of Ahern pursuant to the extended definition and therefore the claim at common law must fail. The Full Court rejected that argument. It said:-
“Provisions of the type contained within the regulation are common place in workers compensation schemes. They are frequently referred to as a deeming provisions. That is to say, they deem a person who in law is not a worker, to be a worker. Independent contractors or self employed persons who would not otherwise be afforded the protection of the Act, are afforded that protection by provisions of this type. They exist for their benefit. They do not exist so as to provide those who are employed, the opportunity to identify others as their employer. Thus the expression ‘contract arrangement or understanding’ has to be interpreted in that light.”

That case was considered by the Full Court of the Supreme Court of South Australia by way of judicial review but was dismissed on procedural grounds and the substantive point was not decided. The Full Court of the Supreme Court of South Australia have considered two cases which are similar to though not identical with the present. In Warrior v Workcover Corporation (Judgment of the Full Court dated 2nd October 1998) there was an appeal from a decision of the Workers Compensation Appeals Tribunal which had held that the appellant was not a worker within the meaning of the Workers Rehabilitation and Compensation Act and therefore not entitled to any benefits under that Act. In that case the appellant was chosen by the Kaurna Heritage Committee to be an Aboriginal consultant at the site of excavations to be carried out by MBFI Resorts Pty Ltd who were developing the Wirrina Resort on the Fleurieu Peninsula. The appellant suffered an injury in the course of his work as an inspector of excavation and one of the questions to be decided was whether he was an employee of MBFI. The Workers Compensation Appeals Tribunal found that he was neither an employee in the normal sense of the word nor under the extended definition of a Contract of Service. It was also held by the Tribunal that the work he was doing was not “prescribed” work within the meaning of the extended definition. The Full Court held that the work he was doing was not of the “prescribed class” and therefore he did not come within the extended definition and was not an employee of MBFI and therefore was not entitled to compensation. However in deciding the matter Lander J. made certain observations about the extended definition. He considered the question whether there could be an “understanding” within that definition if another party was involved in that “understanding”. He said at page 10:-
“I believe that the worker might be performing work under a contract of service where the contract under which the worker works for an employer has been entered into by the worker’s usual employer and the second employer. So also a worker might perform work under a contract of service because of arrangements entered into by another person and the person for whom the work is being performed.
I suppose ordinarily if two persons reach an agreement or enter into an arrangement whereby another person, a worker, will perform work for one of those two persons at least an understanding will arise between the worker and the person for whom the work is being performed, i.e. the employer under which the worker performs the work. However, I do think a worker can come within a contract of service even if the circumstances giving rise to the worker performing the work were made by others as long as one of those others is the employer in par(b) of the definition of “contract of service” for whom the worker is working.
It was submitted by the respondent in this case that the appellant’s claim had to fail because there was no contract, arrangement or undertaking between the appellant and the respondent. It was said that MBFI concluded its agreement directly with the Kaurna Heritage Committee.
In my opinion there was at least an understanding existing between the appellant and MBFI under which the appellant worked for MBFI. That understanding must have existed because of the arrangements entered into between MBFI and Kaurna Heritage Committee. The appellant was paid for his attendance at the site. Indeed he was paid directly by MBFI. In the letter of 1 December 1994 from MBFI to the Committee reference was made to “the seminar/briefing of the on-site workers”. The Committee also referred to the education and instruction of employees who may be hired or arrive on site subsequent to the initial seminar. I think that there was at the least an understanding that the appellant would work for MBFI. There was no contract of employment nor was there a contract for services. The relationship was far more informal than a contractual relationship but it did involve at least an understanding of the kind I mentioned.”

However the Full Court then went on to say that the appellant did not come within the definition because what he was doing was not “prescribed” work. In my view the factual situation is clearly different in the present case. Here we have no question of the defendant paying the plaintiff for his attendance and work at the site. Also in the present case it is not a situation of a Committee appointing a worker to do certain work for a third party but of an agency hiring the worker out. There is therefore an agreement between that agency and the third party to supply labour. I am of the view that in the present case there is no “contract, arrangement or understanding” between the plaintiff and the defendant for the plaintiff to work for the defendant. This is to be distinguished from the factual situation in Warrior’s case. In the present case although there were agreements between the agency and the plaintiff and indeed the agency and the defendant there was no direct “contract, arrangement or understanding” between the plaintiff and the defendant.
A further case considered by the Full Court was Mason & Cox Pty Ltd v McCann (Judgment of the Full Court on 17th December 1999). The Full Court considered a case where a worker whose services were provided by a labour hire company was injured during the course of performing his work. He sued at common law. It was held by the trial Judge that the claim was not barred by Section 54(1) of the Workers Rehabilitation and Compensation Act because the worker was not an employee within the meaning of the Act. That decision was upheld by the Full Court. However in that case it was conceded that the work being performed by the worker at the time of the injury was not “prescribed work” within the meaning of paragraph (b) of the definition of Contract of Service. Therefore the decision turned on the question whether the worker came within the definition of “Contract of Service” within the meaning of paragraph (a) of the definition of Contract of Service. It was held that there was no contract between the worker and the person he worked for. Perry J. in upholding the trial Judge’s reasoning said:-
“In my view, he was right in reaching that conclusion. It seems to me that a correct characterisation of the relationships between the various parties leads to the view that Mr McCann was engaged pursuant to a contract with the agency. It was a term of that contract that he agreed to work at the direction of the agency’s customer, upon being placed with the customer. There was a separate contract between the agency and each customer to whom the agency supplied labour, which included implied terms to the effect, inter alia, that the work to be performed by the workers supplied by the agency would be subject to the direction and control of the client.”

I cannot see why that reasoning should not equally apply to paragraph (b) of the definition of Contract of Service. In my view not only was there no contract in existence between the plaintiff and the defendant (which is agreed) but there was no arrangement or understanding between those parties within paragraph (b). As Perry J. said in McCann’s case there was a separate contract between the agency and each customer and there was a contract between the plaintiff and the agency.
I therefore find that the defendant was not the employer of the plaintiff for work done on the day in question either within the common meaning of the word or in the extended definition of Contract of Service. I therefore hold that the defendant’s argument that the plaintiff cannot claim for damages at common law pursuant to Section 54(1) of the Act fails. I now turn to the question of negligence.

Claim for Negligence

The plaintiff gave evidence that on Friday, 13th January 1995 pursuant to the arrangement with Extraman Pty Ltd he started work at 6.00 a.m. at the DSTO, Salisbury. He was told by an employee of the defendant namely Graham Beare to go onto a particular roof. Prior to that he heard about an accident involving an employee named Mick Devine who fell partially through the roof and was taken away by ambulance. The plaintiff gave evidence that there was no discussion between he and Mr. Beare about safety equipment to be used when going onto the roof. However the plaintiff said that he attempted to use a harness which he got from an old shipping container which was used as a storage room. He gave evidence that there were no instructions as to how to wear that harness or indeed to use it at all but he thought he should use it as he was going onto a roof. He put the harness on but there was no lanyard or rope attached to it and there was nothing on the roof which could anchor the harness. Therefore according to the plaintiff it was of no use and he eventually took it off. He was adamant that he never received any directions or instructions about the harness from Mr. Beare (who was the foreman). While on the roof he noticed that there were no “crawl boards”. He said also that prior to getting onto the roof he saw a sign attached to the building which said “Danger, fragile roofing, use crawl boards”. Photographs of the area where the accident took place were tendered (Exhibit P1) and that sign is clearly placed on the wall of the premises where the accident too place. Although the plaintiff was experienced in working with scaffolding he gave evidence that he had not worked on asbestos roofing before although he did know it was very brittle. He gave evidence that weather conditions were very hot and his job was to bring loose sheets of asbestos down the roof. He worked for about 3 hours doing this task and then went to lunch. He was then ordered back onto the roof to bring down further loose sheets that were on the roof. The plaintiff gave evidence that there was a forklift which had its actual forks protruding about a metre over the edge of the roof and it was onto those forks that the asbestos sheets had to be placed. The system of work according to the plaintiff was that he would walk down the slope of the roof carrying a sheet with the intention of placing it on the forklift. The sheets were some 5 to 6 feet in length and 2 to 3 feet in width and weighed approximately 20 to 25 pounds. He said that he was walking down the roof trying to walk along the purlins towards the forklift because that was the safe part of the roof. If he came off the purlins there was a chance that he would go through the asbestos. He then gave evidence that while doing this he went through the roof. He cannot remember how it happened but he obviously came off the supported area of the roof onto the weaker part of the asbestos and fell through. He said from the top of his journey with the asbestos to the bottom where he had to place it on the forklift was a distance of about 18 to 20 feet. He fell through that part of the roof which covered the verandah. The distance he fell was a little over 3 metres.
The plaintiff called Mr. Roland Warren Reeves who was an experienced builder and had been a supervisor of many building contracts. He has undertaken an arbitrators course and has acted on many occasions as a building arbitrator. He was of the opinion that when demolishing roofs the safest way to bring sheets or iron or other material down the roof would be to slide it down and not carry it. He gave evidence that to carry it would be a last resort and he would ask two men to take one sheet. He was of the opinion that the very fact of carrying an awkward load on a sloped roof could be dangerous. He gave evidence of the use of safety harnesses and the use of crawl boards. He gave evidence that crawl boards are a safety measure to be used when walking on roofs and in answering the question as to what a “crawl board” was said the following:-
“A.... For many years there have been roof ladders and many old houses with steep roofs one will see a stepladder left in a particular situation, and they are there because of the steepness of the roof and the fact that corrugated iron becomes very slippery in dewy conditions in the early morning, so it is something has moved from the use of crawl ladders to crawl boards being continuous walking areas, and they are used mainly in areas where demolition is in progress, or they will be in a permanent space in these modern times where airconditioning systems are required to be serviced regularly, and they are used as much to prevent damage to a roofing surface as they are to make safe the procedures which are being carried out at the time. So they represent a continuous planking in an area where foot traffic is being undertaken.

HIS HONOUR

Q...... What physically are they, are they like a plank.
A.Not one plank so much as probably most of them would be the best part of 600 mm wide, and you might well make them up out of four 150 mm floorboards nailed to a short length of joist. It is something that a firm would make up from the available material; often it is the present demolition.
XN
Q.600 mm is what, in the old measurement.
A...... Two feet wide.
Q.And it would be constructed in such a manner that they could take the weight of workmen walking along them.
A...... Yes, you would apply the section supporting the flooring, for instance, at the point of bearing over purlins, so that each one would be sitting on the nails, if you like.
HIS HONOUR
Q...... So the advantage would be not just that they would give support, but they would tell the workmen where to walk to be on a safe part of the roof.
A.Well, more than anything the workmen can concentrate perhaps on the load. Assuming the workmen are carrying something heavy, they can concentrate on feet and all the other safety factors.
Q...... They would be confident that where they were walking was a safe place that was on a reinforced part of the roof.
A.That is so.
Q...... Like a track through a minefield.
A.Very much so.”

He also gave evidence as to the difference between a rafter and a purlin. He said that a rafter is that section of timber which proceeds from the apex of a roof down to the lower most part of the walls and the purlin is a section of timber that runs at 90o to the rafter. That is not unimportant because obviously the plaintiff when giving evidence of walking along the purlin was talking about the rafter. I find that to be an innocent mistake and of no consequence. The important factor of course is that when walking down an asbestos roof a worker must at least walk on that area which is the rafter and preferably on that area where the rafter crosses the purlin. He also gave evidence that the use of a harness on a roof which was low (as in this case) would probably not be effective. A harness, for obvious reasons, is meant for much higher use. He gave the opinion that for a job on a roof such as the present he would seek to do the work without using a safety harness because of the lowness of that area of the roof through which the plaintiff fell.
Richard Frank Thornton was employed by the Department of Industrial Affairs as a construction safety engineer inspector. He attended at the premises at Salisbury four days after the accident namely the 17th January 1995 and made observations and took various measurements. He also took statements from various people. On arriving at the site he saw the demolition manager, Mr. Phillip Bubner, who showed him the broken asbestos roof sheet through which the plaintiff obviously fell and proceeded to take measurements and draw up a plan of the area. He gave clear evidence that there was no plywood on the roof. This is important when considering the defendant’s case and particularly the evidence of Mr. Beare. He was also of the opinion that in removing sheets down a sloped roof crawl boards should be used.
On the question of liability the defendant called two witnesses. They were Phillip James Bubner who was employed at the time as the operations demolitions manager for the defendant Company and David Mark Beare who was the project supervisor at the time for the defendant Company. Mr. Bubner was at the site on the day in question and can remember the incident when Mr. Devine went partially through the roof and injured his finger. He gave evidence that on that day at the site there were safety harnesses with lanyards and inertia reels provided. He said that they were kept in a store by the office and the employees had access to that store. He also gave evidence that he was of the view that a safety harness would not be effective for a person who fell from a height of about 3 metres. That is because the distance would be too short for the harness to work. He also gave evidence that there were no crawl boards used at the site of the accident. He said that the object of a crawl board which would run from the top of the roof to the gutter line was to give the worker a chance to walk on an identifiably solid part of the roof.
In cross-examination Mr. Bubner frankly admitted that once he found out that crawl boards were not used he gave an order that no more work was to be done on the roof until crawl boards were used. He said further in his cross-examination the following:-
“Q.... I take it, from that, that you thought that that was the safe way of removing the asbestos sheets; namely, to have the workers walk down crawl boards and not walk on the asbestos sheeting.
A.Yes.
Q...... That was your view before and after the accident.
A.Yes.
Q...... If you’d seen workers up on that roof, where Cox fell from, without the use of crawl boards, you would have put a halt to it.
A.Yes.
Q...... I take it from that, the fact is you didn’t see it happening therefore you were unable to prevent it.
A.Correct.
Q...... I think in answer to the questions by my friend and his Honour, crawl boards were the preferred safety method of implementing safety procedures for walking on the roof rather than harnesses.
A.You still need the harness in case you step off the crawl boards and go through the roof.
HIS HONOUR
Q.With a shallow roof you don’t think it is going to be of much use.
A...... No, not where he actually fell.
Q.Three metres or so.
A...... If he had of been up in the apex of the roof, that would have been different.”

He also gave evidence that when he inspected the roof after the accident he saw no plywood.
I say at the outset that I found Mr. Bubner to be a frank and impressive witness.
David Mark Beare who at the time was the projects supervisor gave evidence that before the plaintiff went onto the roof he was shown how to put a safety harness on. He said that the plaintiff and a Mr. Govett who went onto the roof with the plaintiff had safety harnesses on. He said however that at the time of the accident the plaintiff did not have his safety harness on. He gave evidence of the system of removing the sheets from the roof to the forklift. In answer to his counsel’s questions he gave the following evidence on that topic:-
“Q.... And to remove the sheets from the area, what system did you employ. I understand you had a forklift there.
A.Seeing it was only a single storey building we brought our forklift there and listed the tines of the forklift up to the roof, underneath the tines I had constructed a plywood platform so when the blokes walked there, there being on the verandah, the unsafest part of the whole job, the verandah was, the fellows would walk along the bolt lines, place it on the forklift, then walk back up to grab another sheet.
Q...... These pieces of timber, what size were they.
A.Back then we would have been using 6 by 4 construction ply.
Q...... Is that 19 millimetres in thickness.
A.Mostly all the time it is, it might vary a millimetre, mostly all the time 19.
Q...... It is supposed to be 19.
A.Yes.
Q...... There is some manufacturing variation.
A.Yes, we never measured it. You can tell when you pick it up.
Q...... How had you set up these plywood sheets.
A.It was usually three or four sheets placed in a lock-in and just placed underneath the forks of the tines, locked in the place by resting in the gutter; if it wasn’t high enough, you used a nail like a bottom section of timber against it, and pushed them up against it.
Q...... The ply was either anchored by the gutter itself and were part of the tines of the forklift over this plywood.
A.The tines were actually resting on the plywood, yes.
Q...... Did this platform project on to the roof.
A.It took up a section of the verandah so if it was four sheets of 6 by 4, that’s how big an area was covered by the sheets.
Q...... So the two sheets together would mean that it would extend - if it was one sheet it would extend four feet on to the roof; if it was two sheets, it would extend eight feet on to the roof.
A.Yes, down the bottom of the area you put three sheets together, so the most dangerous part is when you place the sheets on the forklift the men are usually on the sides of the tines, especially if two blokes are carrying the sheet, they place it down, so the most dangerous places are the sides.
Q...... These sheets protected either side of the tines because they stand to the side for the purpose of loading the tines.
A.Yes.”

This evidence is clearly totally at odds with the evidence given by the plaintiff. The plaintiff when cross-examined made it clear that there was no plywood at all on the roof let alone as described by Mr. Beare. It will be noted that neither Mr. Thornton who admittedly came three days later nor Mr. Bubner observed any plywood.
Mr. Beare gave evidence in cross-examination that when a worker was bringing sheets down the roof onto that part which covered the verandah he did not have to walk on the verandah roof at all. A worker carrying out that task would step from the main part of the roof straight onto some plywood placed near where the forklift was parked. This once again is totally at odds with what the plaintiff says.
I observed the plaintiff very closely and I observed Mr. Beare very closely. I was far more impressed with the evidence of the plaintiff and I accept his evidence that there was no plywood for him to walk on on that part of the roof covering the verandah. I accept that he came down the roof in the way that he has described. I am re-enforced by the fact that neither Mr. Bubner nor Mr. Thornton saw any plywood and that when Mr. Beare was interviewed by Mr. Thornton about the accident on the 18th January 1995 (Exhibit P19) he did not mention the presence of plywood. This was despite the fact that he was asked the following pertinent questions by Mr. Thornton:-
“I said:...... Were crawl boards in use on the roof of building No. 95 prior to the accident Mr. Cox.
He said:No.
I said:........ Were there any crawl boards on the roof of Building 95 at the time of Mr. Cox’s accident.
He said:No.”

It would be very strange that if there was plywood on the roof which would obviate the necessity of having crawl boards that it would not be mentioned by Mr. Beare if that were the case. I therefore make the following findings of fact as far as the accident is concerned:-

1...... On the 13th January 1995 while employed by Extraman Pty Ltd and out on hire to the defendant Company the plaintiff was engaged in the process of removing asbestos sheets on a verandah roof of a building at the Defence Science and Technology Organisation at Salisbury.

Earlier that day an employee had partially fallen through a part of that roof because of the weakness of the asbestos injuring his finger.

In removing a sheet of asbestos he carried it down the roof intending to walk to a forklift on which the sheet was to be placed.

While walking down the roof he was attempting to walk along a line of the rafter (which he erroneously described as “purlins”) because to come off that area would be dangerous.

I find that there was a clear inference from the evidence that because of that system of work in the situation he was in he over balanced inadvertently and stepped on the weak part of the asbestos roof and fell through to the ground.

The distance he fell was something like 3 metres.

I find that the plaintiff put on a safety harness but found that it did not have the appropriate attachments on the roof to be of use and therefore rejected it. I accept the plaintiff’s evidence in contrast to the evidence of the witness Beare on that topic. I find that he did not receive any instructions about his safety harness from anybody.

I find that there were no crawl boards on the roof to assist a worker walking down the roof and I find that there was no plywood on the roof as described by Mr. Beare or at all.

It is an agreed fact that on the day in question at about the time the accident took place the temperature was in the vicinity of 39oC and the wind speed varied between 10 and 15 knots.

I find on the whole of the evidence presented to me that the use of a harness even if it was properly and effectively worn would not have helped in the situation the plaintiff found himself in. I accept the opinion of Mr. Bubner that at 3 metres the probabilities are that a safety harness would not be effective. I therefore do not regard the question of the harness as relevant when considering both negligence and contributory negligence.

In the light of the above findings I find that there was clearly a duty of care owed by the defendant Company to provide a safe system of work to those workers including the plaintiff, working on the roof removing asbestos. I find in the circumstances of this case there was clearly a breach of that duty in failing to provide crawl boards or some safety device whereby the worker could remove the asbestos. To expect a worker to carry a sheet of asbestos down the roof and at the same time be conscious of walking not only on that part of the roof which covered a rafter but to be especially careful to place his feet on that part of the rafter which crossed a purlin was not only unsafe but was an accident waiting to happen. In all of the circumstances I find that the defendant Company was clearly in breach of its duty. I now turn to the question of contributory negligence.

Contributory Negligence

I have already found that the question of the harness does not effect my decision either in considering whether there has been a breach of duty by the defendant or whether there is contributory negligence on behalf of the plaintiff. The reason being that the probability is that the harness would not be effective anyway over such a short distance. As there was no other alternative presented to the defendant to carry out the work on the roof the plaintiff clearly had no choice in the circumstances as to how he was to carry out the job. He cannot be blamed for that. In my view there was a breach of duty because no crawl boards were provided and to expect a man to walk down the roof in the way that the plaintiff was required to was a breach of the defendant’s duty. The plaintiff in overbalancing was merely carrying out what he was expected to do and it was clearly an accident brought on by the situation in which he was asked to work. At worst it was merely inadvertence on his part. I find that there is no contributory negligence on behalf of the plaintiff. I now turn to the question of damages.

Damages

At the time of the accident the plaintiff was aged 41 being born in the United Kingdom on the 25th November 1953. He was educated in the United Kingdom to the equivalent of our old leaving standard. He regularly played sport and on leaving school worked in his parents business which was a hotel. He also worked with his uncle who ran a small shipping company which took tourists out on day trips around the United Kingdom. He was employed there as a junior deck hand and did this work for about two seasons of five to six months each. When he was aged 19 he left England and migrated to Australia arriving at Fremantle in 1973. His work record in Australia started in Melbourne when he was employed at a butchers shop in Prahran. He worked there for three months. He then started a career at working in the building industry. He gave evidence that he worked as a concrete labourer in 1974 and also in that same year he was employed as a trades assistant to diesel fitters. In 1975 he travelled through north eastern Australia living off money he had saved. From 1976 to 1978 he worked at Bitumax in Adelaide and various country centres in South Australia doing labouring work, driving rollers, driving a tractor broom and raking hot mix. In 1978 he went to Melbourne and worked as a labourer and in 1979 he worked in Western Australia as a bricklayers assistant. He was a boilermakers trades assistant at Mount Tom Price in 1980 and in 1981 he went back to the United Kingdom for about three months. He gave evidence that after he returned to Australia he obtained employment in the Moomba oil fields as a labourer. In 1984 he worked with Frankipile Constructions on the Aser Hyatt Hotel Construction site as a construction worker. In 1985 he worked with a construction company doing work on the Hyatt Hotel and in 1986 he did labouring work with a pile driving company called Vidipile. From that time until 1988 he worked with Sabemo as a hoist driver and a scaffolder. He worked sporadically as a scaffolder labourer from 1989 to 1992 on the Remm Construction site. When that project finished he did sporadic work as a scaffolder or labourer until he got a job with Complete Scaffolding in 1994. He gave evidence that in 1992 and 1993 and some of 1994 there were large periods of unemployment and that is shown by his tax returns which have been tendered in evidence.
Complete Scaffolding was a company at Port Adelaide which was on hire to the Adelaide Brighton Cement doing maintenance scaffolding when that company had a shutdown. That job finished in November 1994 and his next employment was early January 1995 with Extraman Pty Ltd. The nature of his work and the relationship with Extraman Pty Ltd has been set out in my narrative of the events concerning liability.
The plaintiff gave evidence that when he was working with Sabemo on the Hyatt Hotel contract he injured his right knee. This was in about July of 1986. He has since recovered from that injury. On the Queen’s Birthday weekend in 1992 he was involved in a motor vehicle accident when the vehicle he was in hit a tree. He suffered a lower back injury. He gave evidence that for a period of 18 months to two years he had physiotherapy and acupuncture because of that problem although he was still very active. He gave evidence that he used to cycle a lot and would provide his own maintenance for his cars. In April of 1993 he saw an orthopaedic surgeon, Dr. Mintz and did a pain management course. The symptoms which he was suffering from were back stiffness and soreness. The plaintiff gave evidence that the scaffolding work with Complete Scaffolding which he commenced in 1994 involved very heavy lifting work. It involved bending and squatting and twisting his body. The plaintiff gave evidence that his back problems from the accident in 1992 did not prevent him from doing that type of work for Complete Scaffolding.
The plaintiff gave evidence that when he was first employed by Extraman Pty Ltd before the accident, which is the subject of this case, his first job was jack hammering approximately metre high concrete peers, taken right down to ground level. He did this work for about three and a half days and he did not have any problems with his back. He said he enjoyed his work at construction sites and made many friends in the building industry. Also while working for Extraman Pty Ltd before the accident, other than jackhammering, he was involved in heavy lifting and general labouring work. Once again there were no problems on his back with that type of work.
As I have already indicated I find the plaintiff to be an honest witness. I find that at the time of the accident on the 13th January 1995 he was a fit 41 year old man capable of doing heavy labouring work. I find that the symptoms of the pre‑existing accident in 1992 had abated.
Immediately after the accident the plaintiff gave evidence that while lying on the ground he was in a lot of pain and felt disoriented. He was advised by his supervisor to go home but before doing so he went to the rooms of his general practitioner, Dr. James Cassar. At that time his left wrist, neck, back and legs where hurting. The plaintiff gave evidence of the further development of his injuries as time went on. A few days after the accident he started getting headaches and there was consistent pain in his lower back. He gave evidence that that pain is still with him both in his lower and upper left back. He can only walk for about 45 minutes at a slow pace because of the pain and can only sit comfortably in a chair for something like a half an hour. He suffers from constant headaches. He gave evidence that his back is aggravated by domestic duties both inside and outside of the house, sitting for long periods and driving. He never had any of these symptoms immediately before the accident and the pain he experienced after his accident in 1992 was different both in nature and intensity to the present symptoms. He also now suffers pain in his left shoulder which he did not have before.

The plaintiff gave evidence of the effect of the accident upon him psychologically. He says that he is now very reclusive and does not socialise and in his opinion his own personality has declined. He said he noticed this about two weeks after the accident. He cannot now ride a bike, an activity he used to enjoy and took very seriously. Riding brings on pain to his legs and his back and also causes headaches. He says that going to activities he used to enjoy before like watching a soccer match is something he now does not do. He feels lethargic and to use his own words he doesn’t have any “get‑up-and-go”. He feels depressed and cannot concentrate.
Prior to the accident he never had cause to see either a psychologist or psychiatrist. Since the accident he has seen a psychiatrist, Dr. Graham Craig and a psychologist, Monica Ciccocioppo.
The plaintiff gave evidence that when paid a lump sum pursuant to the provisions of the Workers Compensation Rehabilitation Act he bought a house at Clayton. While living at Clayton he approached the proprietor of the Milang Bakery and obtained employment. He started work at 1.30 in the morning and worked for about six hours per session. He gave evidence that the work load aggravated his injuries especially the lower back into the leg. This was because he was on his feet for virtually the whole of the six hours he was working without a break. He didn’t tell his employer about those problems because he thought that it might jeopardise future employment. Mr. Bates, the proprietor of the bakery, was called by the defendant and gave evidence that the plaintiff worked there from Monday, 15th February 1999 to Friday, 9th July 1999. According to Mr. Bates had the plaintiff not resigned there would still be a job available for him as he was happy with his work.
The plaintiff gave further evidence that although he is not qualified for any work other than labouring he is actively looking for work in an area with which he can cope. He obtained employment for two or three days at the Clayton Turf Club but the work was too heavy. He has done a four weeks course at TAFE at Langhorne Creek training to work in vineyards. He did vineyard work for about six weeks. However he gave evidence that working on vines was too difficult and caused problems with his back. Those problems were caused by the bending and squatting needed for that type of work. I now turn to the medical evidence.

Medical Evidence

On the plaintiff’s case he suffered both physical and psychiatric injuries. Generally speaking the physical injuries were a right wrist injury, soreness and damage to the back and low back. The psychiatric and psychological injury was an adjustment disorder with a depressive component.

Physical Injuries

Two orthopaedic surgeons gave evidence. Robert Joseph Bauze was called by the plaintiff and Johnathan Rodwell Middleton was called by the defendant. Also Dr. Cassar the plaintiff’s general practitioner was called. Dr. Bauze was of the opinion that the plaintiff had a degenerative back problem at the time of the accident in January of 1995. In his opinion the plaintiff has a permanent residual disability in the order of 30% loss of lumbar spinal functions. Dr. Bauze is of the opinion that half of that, namely 15% is due to the injury of the 13th January 1995 and half is due to the pre‑existing degeneration. The condition of his back due to the accident would prevent him working as a scaffolder or a labourer in Dr. Bauze’s opinion. He further says that even if the accident had not happened because of the degenerative problems with his back he would inevitably be prevented from doing such work. When that would happen he is unable to say.
Mr. Middleton gave the opinion that the plaintiff would have some residual problems with his back as a result of the fall in January 1995 and puts a figure of 10% loss of function of the lumbar spine. However he divides that figure between the motor vehicle accident in 1992 and the roof accident.
The plaintiff’s general practitioner, Dr. Cassar, first saw him as a patient in 1993. He thus had the benefit of observing him both before and after the accident. He was of the opinion that before the plaintiff fell through the roof in January of 1995 he was capable of working as a builders labourer and the effects of the motor vehicle accident in 1992 did not prevent him from doing that. However he was of the opinion that the accident in 1995 has precluded him from working in the building industry.
As far as the physical injury is concerned I find that because of the fall through the roof on the 13th January 1995 the plaintiff has suffered an injury to his lower back which now precludes him from doing any labouring or heavy work. I find that the accident has caused a permanent 10% residual disability in his back. I also find that there were inevitable degenerative changes which will overtake that injury and those changes would inevitably have precluded him from working as a labourer whether this accident had taken place or not. However I find on the evidence before me that when that would have happened is speculative and doing the best I can with the material before me it would not be until some years into the future. I base that on the fact that those degenerative changes have certainly not precluded him from doing heavy work in the period leading up to the accident. I now turn to consider the psychiatric and psychological evidence.
The plaintiff called Dr. Graham Craig, a psychiatrist, and two psychologists Ms. Ciccocioppo and Professor Michael Wood. Dr. Graig examined the plaintiff in 1995 just before the Court hearing. He gave evidence that he was of the opinion that the plaintiff as a result of the accident is suffering from an adjustment disorder which has an associated depression component. He gave evidence that the plaintiff suffered depression from soon after the accident until he last saw him just before trial. He is of the view that the plaintiff is likely to remain depressed and isolative and reclusive with a limited amount of social involvement. He gave evidence that one of the major contributors to the adjustment disorder was the fact that he now lacks the ability to do the type of physical labour which he could do before the accident. He said that because of his depressive condition the plaintiff’s desire to work fluctuates. Dr. Davis, who was called by the defendant, examined the plaintiff in 1999 was of the opinion that when he saw him he did not have a major depressive disorder. In his opinion the symptoms described to him by the plaintiff were not of a sufficient level to amount to a psychological disease. He did not doubt that before the plaintiff saw him in 1999 he may have had an adjustment disorder with a depressive component but was of the view that he had recovered from that by the time he saw him. However Dr. Davis agreed that because he may have had an adjustment disorder, which in his opinion is resolved, he would have an increased vulnerability to further stresses bringing about the symptoms of that disorder in the future. This may of course interfere with his working capacity.
I therefore find that as far as the psychiatric condition of the plaintiff is concerned he has in fact suffered from an adjustment disorder involving depression. However I also find, consistent with Dr. Davis’ opinion that even if it is not resolved at this stage the termination of legal proceedings will remove a significant stressor and go a long way to resolving the psychiatric aspect of the plaintiff’s condition. I now turn to the discrete heads of damage.

Non-Economic Loss

As a result of the fall the plaintiff has experienced and does experience pain particularly in his lower back. This has impacted seriously on his working life and social life. Psychologically the plaintiff has become reclusive and physically can no longer indulge in recreational activities which he did before the accident. Consequently for non‑economic loss I assess damages at $35,000.00.

Past Economic Loss

At the time of the accident the plaintiff of course was in full employment with Extraman Pty Ltd. If he continued to work as a builders labourer from then until the date of judgment the plaintiff has asked me to use as a guide to assessing past economic loss firstly the amount of weekly wage maintenance he received from Workcover from the 13th January 1995 to the 26th March 1997. In doing this calculation Mr. Eriksen for the plaintiff asked me to separate this figure into two periods. The first was from the 13th January 1995 until the 13th January 1996 whereby the gross weekly wage he received from Workcover was $670.34. The second period was from the 13th January 1996 until the 26th March 1997 when the Workcover payments were reduced by 20% marking a gross weekly wage of $536.27. On Mr. Eriksen’s calculation the total gross figure from the 13th January 1995 to the 26th March 1997 is an amount of $68,793.18. It was agreed that the figure was appropriately a gross figure due to the principles of Fox v Wood (1981) 148 CLR 438. Then Mr. Erikson asked me to add the net 20% loss from the 13th January 1996 to the 26th March 1997 and that comes to $5,398.00. From that time until the date of judgment the net figure which is lost by the plaintiff is $508.66 per week. Multiplying that out there is a further amount of approximately $80,000.00. To that the loss of superannuation which is $11,175.00 is to be added less an amount of about $7,000.00 which the plaintiff earned from his employment at the Milang Bakery. This amounts to a raw figure in the vicinity of $160,000.00. Mr. Eriksen has asked me to use those very general figures as a guide to assessing past economic loss.
I find this method although in a sense helpful in establishing the absolute parameters of my assessment to be basically unrealistic. Even for past economic loss in the confined period from the date of the accident to the date of judgment there are serious contingencies which have to be borne in mind. The plaintiff’s work record as evidenced by what he said in evidence and as shown in his taxation returns indicates that up until the time of the accident it was sporadic to say the least. It would be unrealistic to assume that he would work anything like the full period between the date of accident and judgment. Similarly there are the general contingencies such as difficulties in the labour market, non‑compensable accidents and illnesses. I do not regard the degenerative condition of his back as a contingency for the purposes of past economic loss. Although I have used the plaintiff’s calculations as a very general guide I must inevitably use a broader approach bearing in mind all of the evidence on this topic and I assess past economic loss at $85,000.00.

Future Economic Loss

Once again the plaintiff has asked me to assess future economic loss by reference to a raw figure in excess of $400,000.00 which includes continual employment until the plaintiff is aged 65 and loss of superannuation using a net figure of $508.66 per week being the amount that the plaintiff was earning at the time of the accident. Once again such a figure can only be a rough starting point and no more. In assessing future economic loss I take into account that the plaintiff has lost his capacity to work as a labourer or scaffolder or any type of slightly heavy manual job. I find that for a period of time he may be hindered in looking for other types of work by virtue of his psychiatric condition. However I find in time that that problem will resolve. I once again have to bear in mind the fact that his work record before the accident was patchy. There was also the contingency that he may not have wanted to work until he was 65 and there is the important contingency that the degenerative changes to his back may have precluded him from doing labouring work anyway. As I have said earlier when that will happen is problematical but it is a contingency which I must bear in mind. Once again using a broad approach bearing in mind the above matters I assess future economic loss at $90,000.00.

Future Medical Expenses

I have assumed that this claim is based upon Dr. Bauze’s opinion that in the future the plaintiff may have to wear a lumbosacral corset. According to Dr. Bauze this will cost no more than $200.00 a year. The plaintiff has claimed $1,250.00 for that expense and I allow that amount.

Special Damages

These have been agreed at $12,917.30.

I assess the plaintiff’s damages as follows:-
Non-Economic Loss  $35,000.00
         Past Economic Loss  $85,000.00
         Future Economic Loss  $90,000.00
         Future Medical Expenses                   $1,250.00
Special Damages  $12,917.30
  $224,167.30

Consequently there will be judgment for the plaintiff in the sum of $224,167.30. I will hear the parties as to interest and costs.

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Citations

Cox v Mcmahon Services Pty Ltd No. DCCIV-98-26 [2000] SADC 43

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Graham v Baker [1961] HCA 48

[2000] SADC 43

11 April 2000