Darren James Shields v Zoran Gurcinoski t/as Perfect Air Refrigeration Air Conditioning & Heating
[2006] ACTSC 109
DARREN JAMES SHIELDS v ZORAN GURCINOSKI t/as PERFECT AIR REFRIGERATION AIR CONDITIONING & HEATING & ORS
[2006] ACTSC 109 (10 November 2006)
NEGLIGENCE – personal injury – workplace injury – safety of system of work – power saw – liability of operator of saw – liability of employer – contributory negligence – contribution between tortfeasors
DAMAGES – personal injury – hand injury – loss of four fingers of right hand at distal interphalangeal joint
Workers Compensation Act 1951
Kondis v State Transport Authority (1984) 154 CLR 672, applied
TNT Australia Pty Ltd v Christie [2003] NSWCA 47, applied
Causoski v Commonwealth of Australia [2004] ACTSC 103, distinguished
Sungravure Pty Ltd v Meani (1964) 110 CLR 24, applied
McLean v Tedman (1984) 155 CLR 306, applied
Andrikis v The Nominal Defendant (2004) 190 FLR 136, applied
Allianz Australia Insurance Ltd v Insurance Australia Ltd [2006] ACTSC 35, discussed
No. SC 744 of 2003
Judge: Master Harper
Supreme Court of the ACT
Date: 10 November 2006
IN THE SUPREME COURT OF THE )
) No. SC 744 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DARREN JAMES SHIELDS
Plaintiff
AND:ZORAN GURCINOSKI t/as PERFECT AIR REFRIGERATION AIR CONDITIONING & HEATING
First Defendant
AND:JOHN MARTIN SAALS t/as J M SAALS
Second Defendant
AND:THE NOMINAL INSURER
Third Defendant
ORDER
Judge: Master Harper
Date: 10 November 2006
Place: Canberra
THE COURT ORDERS THAT:
The action be stood over for further submissions in the light of these reasons and for the making of orders as to the entry of judgment and costs.
Introduction
On 18 December 2002, the plaintiff lost the distal phalanges of the four fingers of his right hand. They were cut off by the blade of a circular saw operated by the second defendant, Mr Saals. The accident happened at the Watson IGA supermarket, owned by Mr Andy Haridemos. Mr Haridemos also owned the Hackett supermarket. He engaged the services of Mr Saals, a licensed builder, to demolish both supermarket buildings and to erect new buildings. Although Mr Saals was a licensed builder, Mr Haridemos engaged his own building trades contractors direct, rather than as subcontractors through Mr Saals. One of these contractors was the first defendant, Mr Gurcinoski, an air-conditioning and refrigeration mechanic. Mr Gurcinoski was asked to remove existing refrigeration plant and equipment from the Hackett supermarket, and to install the equipment at the Watson supermarket. The work at Hackett took him about a week. There was then a break for a week before the Watson project was ready for Mr Gurcinoski to start. The work at Watson took about six weeks. Mr Haridemos was able to open the Watson supermarket for trading before the refrigeration work was finished. The plaintiff met Mr Gurcinoski socially during October 2002 and asked him whether he had any work available. Mr Gurcinoski offered him work as a labourer, undertaking the physical work associated with the refrigeration equipment. He worked for the short period at Hackett, and after a break he was called by Mr Gurcinoski again to help at Watson.
The plaintiff initially brought this action against Mr Gurcinoski as first defendant and Mr Saals as second defendant. Subsequently the nominal insurer was joined as third defendant, on his own application but with the consent of all parties. The nominal insurer’s involvement arises from the fact that Mr Gurcinoski did not have a workers’ compensation insurance policy to indemnify him against the plaintiff’s claim.
The plaintiff brought proceedings against Mr Gurcinoski in the Magistrates Court for workers’ compensation. The nominal insurer was also a respondent to those proceedings. The claim was heard by Magistrate Madden who delivered reasons for his decision, in the plaintiff’s favour, on 24 July 2003. The parties concede that his Honour’s decision gives rise to a res judicata in relation to a number of factual matters, though not against the second defendant, Mr Saals. His Honour found that the plaintiff was an employee of Mr Gurcinoski, so that he was entitled as a worker to compensation. In the course of his reasons, his Honour made the following findings:
The actual injury occurred on Wednesday 18 December 2002 in these circumstances. Mr Shields was working in the upstairs cool room. It was necessary for him to go downstairs to check some leaking drains. Mr Shields needed to go via the plant room to get a phillips screwdriver and in doing so he had to walk past Mr Saals. He was asked by Mr Saals for some assistance in the ripping and cutting of some sheets or panels of wood. The request for assistance did not seem to me to be unreasonable. It is probably not an unusual occurrence where there are a group of men working together in a joint building venture. Mr Macintosh, a fourth year apprentice with the respondent actually said it was just common decency to help Mr Saals. This witness was of the view that Mr Shields worked from time to time for all three men as required, ie Mr Gurcinoski, Mr Haridemos and Mr Saals, but he had been told that Mr Shields was working for the refrigeration man being Mr Gurcinoski. Even though Mr Shields was providing assistance in a limited way to Mr Saals at the time of the injury I am satisfied that Mr Shields was working for Mr Gurcinoski who had hired him, gave him instructions about both the Hackett then the Watson projects and held out some prospects of continuing work at some new ventures that he (Mr Gurcinoski) was about to embark upon.
The evidence, his Honour went on to say, was sufficient to satisfy him that the plaintiff’s injuries were occasioned or sustained by virtue of an accident arising out of and in the course of his employment by Mr Gurcinoski whilst working as a labourer on 18 December 2002 at the Watson supermarket. His Honour found on the balance of probabilities that the average salary paid to Mr Shields for a five-day working period was of the order of $750.
By virtue of the Workers Compensation Act 1951, the nominal insurer is liable to pay workers’ compensation where an employer is uninsured, and also to pay damages recoverable by the worker independently of the Act. For that reason, and in particular taking account of the fact that Mr Gurcinoski is not legally represented, I thought it desirable to order the joinder of the nominal insurer to the proceedings notwithstanding that no relief was sought against him. The nominal insurer appeared by counsel throughout the hearing. Although the nominal insurer has a right of recovery against Mr Gurcinoski in respect of the payments of workers’ compensation already made, and will have a right of recovery in respect of any damages awarded against him, I was satisfied that for the purposes of the issues to be determined in this action, there was no conflict of interest between them.
The evidence as to liability
The plaintiff’s evidence before me was that his first task at Watson was to do some sweeping, cleaning and tidying for Mr Saals. He did this at Mr Gurcinoski’s request. By the time they arrived at the Watson site, much of the building work was done but it was not complete. Mr Saals did not have a labourer. Over the weeks, the plaintiff’s tasks varied. Sometimes he would be working with Mr Gurcinoski and at other times he would be helping Mr Saals or doing other work as directed by Mr Haridemos. Mostly this seems to have been because a particular task required two men for a short time. There were many people on site, and all pitched in and did what was required. The plaintiff helped Mr Saals in the presence of Mr Gurcinoski from time to time. He denied that Mr Gurcinoski ever told him not to do so. On occasions, Mr Saals used power tools, including saws. Mr Gurcinoski never gave the plaintiff any instructions in the safe use of power tools. From time to time over the weeks the plaintiff worked at the Watson site, he helped Mr Saals, when asked, to hold a timber sheet steady while Mr Saals was using a power saw.
On the morning of the accident, the plaintiff worked on refrigeration tasks such as the fitting and sealing of aluminium corners in a coolroom. He recalled that Mr Saals was making a vegetable processing bench outside the plant room where the plaintiff was working. Mr Saals was cutting plywood sheets to size, using a circular saw. The plaintiff’s recollection was that the plywood was attached to the bench by a clamp. During the morning the plaintiff volunteered to help him on two occasions. He could see that Mr Saals was having trouble, with the unclamped timber flapping about. The plaintiff explained that he assisted by holding the offcut behind the direction of the saw.
I found the plaintiff’s evidence about these incidents a little difficult to follow. He demonstrated that on the morning of the accident, he had been holding the timber with his fingers underneath and thumbs on top, and with his hands about a metre apart, with the saw coming towards him. He was asked what happened as Mr Saals approached him when standing in that position. His answer was “we’d sort of shuffle around each other, he’d go past me and I’d get behind him and hold the – that’s when I changed my grip on the back bit after I got behind him, because the back starts to flop around so you’re – I was clamping it with my hands like that”. The plaintiff demonstrated a position with his left hand on top of the timber and his right hand under it, in his words holding the offcut secure to the original piece. The plaintiff said that he was not given any directions by Mr Saals about how to hold the timber as the cutting proceeded, and that he was given no warning that there might be any danger to his hands.
Keiran Macintosh was a 29-year-old fourth-year apprentice employed by Mr Gurcinoski. He was identified by Mr Gurcinoski in his evidence as effectively the plaintiff’s supervisor when Mr Gurcinoski was not on site. Mr Macintosh gave evidence in the Magistrates Court, a transcript of which was tendered in these proceedings. He said that he recalled Mr Gurcinoski telling the plaintiff “not to get involved with other trades”, and that he had even told the plaintiff himself a few times that he was working for “refrigeration” and was not to help other people. He said that the plaintiff was re-engaged for the Watson job at the request of Mr Haridemos, who had presumably been impressed with his work a week earlier at Hackett. Mr Macintosh said that from time to time during the Watson job the plaintiff did work for Mr Saals and Mr Haridemos as well as for Mr Gurcinoski. He was asked about some conversation at morning tea on the day of the plaintiff’s accident when Mr Saals asked for a hand. He remembered this, and recalled Mr Saals saying “at least one of you have got the common decency to help me.” He explained that he (Mr Macintosh) would not help Mr Saals. The plaintiff in his evidence before me recalled Mr Saals using the same words.
After morning tea, Mr Haridemos told Mr Gurcinoski and the plaintiff that a drain was leaking in a refrigerator downstairs. Mr Gurcinoski asked the plaintiff to go down and check. The plaintiff set out to do this. On his way, he passed Mr Saals who was just starting to cut another sheet of timber. The plaintiff stopped to assist. His recollection was that the same shuffle he had described as taking place earlier in the morning took place again. Mr Saals continued to cut. The plaintiff felt a stinging sensation in his fingers and realised that the tips had been cut off. He could not remember seeing the saw moving in any particular way or behaving out of the ordinary. Asked to demonstrate the position of his hands at this time, he demonstrated his hands close together, with the right hand below the timber and the left hand above, both palms against the timber. The accident was followed by general panic after which Mr Saals took the plaintiff to the Canberra Hospital.
The evidence of Mr Saals was that, on the morning of the accident, he was cutting to size standard sheets of plywood 2.4m by 1.2m, to form the top and base of a fruit and vegetable packing table with a metal frame. He said that on the morning he was engaged in cutting the ends of full-size sheets to fit the length of the bench frame. This involved reducing the length of the standard sheets by about 500mm. He said that he was attending to this task by placing a sheet on two saw stools. He recalled a number of workers on site sitting down and having morning tea. He was not sure whether he asked the plaintiff specifically, or whether it was a general request to the group, for a hand holding the end of the sheet. He explained that if he did not have someone to hold the end of the offcut, as he reached the end of his cut there was a risk that the offcut, under its own weight, would fall and tear unevenly, splintering the surface fibres. The plaintiff offered to assist, and did so, then going back to his own work.
Later in the day, Mr Saals said that he reached a point with his task where he needed to trim 50mm to 60mm off the full length of a strip of plywood about 230mm wide. He thought that the piece of plywood was about six feet long (about 1800mm). He used clamps to secure the timber to the top of the bench. Having done this, he said, it was not necessary for anyone else to help him with the job. His intention was to clamp the timber to the bench at one end, then cut halfway along its length. His intention was then to stop and turn the piece of timber around, clamp it and complete the cut from the opposite direction. Thus, Mr Saals’ recollection was that the cut during which the plaintiff’s fingers were injured was carried out in quite a different manner to the earlier cuts with which the plaintiff had assisted him.
Mr Saals was wearing earmuffs to mask the noise from the saw. He became aware that the plaintiff was in his general vicinity, but he was looking at the saw and the cut, and concentrating on what he was doing. He said that he had no recollection of the position of the plaintiff’s hands, and that he was not in a position to say anything to the plaintiff because he was engaged in the cut, and concentrating on it. He said that he came to the end of the half-length cut and released the trigger on the saw, whereupon the saw jammed slightly and kicked back and then he heard the plaintiff jumping around and yelling. Initially he thought that the plaintiff was joking but he quickly realised that he had been injured. He said that he kept both hands on the saw at all times. Asked about the saw kicking back, he explained that the saw tended to jam slightly in the cut and that because the blades were still running, the saw tended to be thrown back, perhaps three or four inches. He was asked whether he would have continued if he had known that the plaintiff’s hands were within inches of the saw. His answer was “I don’t think so. But I was cutting, so and concentrating on what I was doing, not on what he was doing. I wasn’t expecting him to come and put his hands anywhere near the saw blade.”
Mr Saals, cross-examined by counsel for the plaintiff, said that he was vaguely aware of the plaintiff’s presence out of the corner of his eye, to his right and ahead of him, but was concentrating on what he was cutting. He did not look at the plaintiff and did not see what he was doing. There was no communication between them because of the noise and the fact that Mr Saals was wearing earmuffs. He did not really think about why the plaintiff might be standing there. He was not aware at any time before the accident of the position of the plaintiff’s hands. He was not expecting the plaintiff to put his hands anywhere near the saw, and he said that he still did not know how the accident had happened. He agreed that it was a basic tenet that one did not use a power saw in close proximity to another person. If he had thought that the plaintiff was going to put his fingers anywhere near the saw he would have stopped the cut immediately.
Mr Saals signed a written statement for an investigator on 18 February 2003, from which I quote:
During the mid-afternoon at about 2.45 pm I was cutting a strip about 180mm wide off a piece of ply that was 18mm thick and about 1.8m long. The ply was clamped to the top of the table. It was securely clamped at the opposite end of the table to where I began cutting the ply, using an electric Makita 9¼ inch saw with a cast base and a roller guide on the saw guard. The saw was in excellent condition with no defects. The timber was being cut to fit on the base of the table. I intended to cut part way along the length of the ply, then unclamp the timber, turn it around and finish the cut. I did not need any assistance and I did not ask any person for assistance. As I was making the first cut into the ply, pushing the saw away from my body towards the clamp, I noticed that Darren Shields, who was working with the refrigeration mechanic, walked past me and stopped near the clamp, apparently to hold the ply. I was wearing earmuffs and the saw was operating, so I did not say anything to Darren and did not hear him say anything. I was only vaguely aware of his presence. I was watching the saw and timber, controlling the saw with my right hand on the trigger and left hand on the front grip. I did not see Darren’s hand at any stage. I did not see a hand on the ply at any point in the immediate proximity of the saw. When I had reached forward as far as I could without changing my grip on the saw, I released the trigger on the saw. The saw then “kicked” slightly, but it did not seem to bite into the ply as it moved up and back toward me. I then noticed Darren jumping around at my side. I was not aware that he had come near or into contact with the saw, so I thought he was joking when he yelled and said his fingers were cut. I still do not know the mechanism of how his fingers could have come into contact with the saw blade. However, I soon realised his injury was genuine. Darren held his injured right hand and I yelled for help to get ice for his injuries and the severed tips of his fingers. I then picked up the severed tips and placed them in a plastic tray with ice. I repeat that I did not ask Darren to help me at the time of the incident in the afternoon. The only time I had asked him for help was in the morning when he was having morning tea and I needed assistance to hold a full sheet of ply. He then helped me to hold the full sheet. I thanked him and I did not ask for help again. It was only after the accident I was told (not by Darren) that after the time of the incident Darren had been on his way to the plant room, just past me, to get a screwdriver. I later drove Darren to Canberra Hospital. I am still unable to understand exactly how the accident occurred, as I did not see Darren’s hand in the vicinity of the saw.
Mr Gurcinoski gave evidence that he was in and out of the supermarket on the day of the accident. He saw Mr Saals upstairs making the bench in the freezer room. Mr Gurcinoski was sealing the floor of the meat coolroom about ten or twelve metres away, around a corner. Mr Saals was not within his line of sight. Keiran Macintosh was on site on that day also. Mr Gurcinoski said that he had given the plaintiff instructions on a number of occasions not to do work for anyone else on the site. He wanted the plaintiff to concentrate on his own work because he wanted the refrigeration part of the job to be completed that week. His recollection was that he told the plaintiff at least two or three times during the week before the accident not to help other people.
Shortly before the accident, he asked the plaintiff to go downstairs to have a look at the freezer drain. The plaintiff left the meat coolroom. Less than a minute later Mr Gurcinoski heard him screaming. He came around and lent assistance in respect of the plaintiff’s injuries. Prior to the accident, he was unaware that the plaintiff had given any assistance to Mr Saals earlier in the day. He noticed that the piece of plywood was cut about halfway along its length but was still in one piece, with a clamp at the uncut end. It was put to him that he had told the plaintiff that it was in order for him to take instructions from Mr Haridemos on site. He denied this, other than in relation to the driving of a forklift truck at a much earlier stage of the job. He agreed that Mr Haridemos was on site for much of the project, directing the work, although he saw Mr Saals, being the licensed builder, as the person actually in control of the site. He took his directions from both Mr Haridemos and Mr Saals. He said that if he had seen what was happening immediately before the accident, he would have intervened.
Mr Gurcinoski thought it highly unusual that Mr Saals did not have a builder’s labourer on site. This had caused Mr Gurcinoski some inconvenience: he had been unable to move onto his next task until Mr Saals had completed a previous stage. There had been a point at which he and another of his employees had helped Mr Saals with a building task for this reason. He knew that the plaintiff had helped Mr Saals from time to time, and had instructed him not to do so. However, he agreed that he had instructed the plaintiff to take directions from Mr Haridemos. He had not told Mr Haridemos that he had any objection to the plaintiff being used for tasks other than the forklift driving. He agreed that the plaintiff had done some general work such as sweeping and cleaning up a concrete area earlier on during the job with his blessing, and said that he did not like to see anybody stand around doing nothing. The plaintiff had also helped out with the task of fitting out the butcher’s shop within the supermarket, during which he was not under Mr Gurcinoski’s direction. The whole job had been done under pressure, Mr Gurcinoski taking the view that he had been given six weeks to build a shop that really required three months.
Mr Gurcinoski agreed that the plaintiff had not been given any induction or provided with any safety brochures. Specifically, he was given no instructions about how to use power tools. Mr Gurcinoski said that he did not require him to use power tools, or expect that he would be doing so.
Findings as to liability
I took the view that each of the three witnesses who gave oral evidence about the accident, the plaintiff, the first defendant and the second defendant, were honest witnesses doing their best to remember the events of about two and a half years earlier. It is not surprising that there are some differences in recollection between the three witnesses.
I think that the evidence of Mr Saals is more likely to be reliable than that of the plaintiff as to the way in which he was undertaking his tasks on the morning of the day of the accident. I accept that he had set up two saw stools to balance the timber sheets while cutting them. The plaintiff was called in at short notice to help him and would have had less reason to remember matters of detail. I also prefer the evidence of Mr Saals as to how the bench and timber were set up for the cutting task in which the plaintiff was injured. Again, Mr Saals was undertaking the task and knew what he was intending to achieve and how he proposed going about it.
I accept the evidence of Mr Saals generally as to what happened during the period leading up to the accident, with the exception that I am persuaded that the accident could only have happened if Mr Saals had failed to see the plaintiff’s right hand on top of the plywood in front of the saw immediately prior to the blade coming into contact with the plaintiff’s fingertips. I generally accept Mr Saals’ evidence about the way in which he was going about the cut. I accept that he did not think he required any assistance with the task. I accept that he saw the plaintiff out of the corner of his eye, approaching or standing near him, and that he continued with the cut because he was concentrating on it, and it did not occur to him that the plaintiff might attempt to help in the way he did.
I am unable to make definite factual findings as to the movements of the plaintiff in the short time immediately prior to the accident. I am left in some doubt as to whether his recollection about his movements is accurate, particularly in relation to his description of the shuffle around Mr Saals. There are, however, two matters of which I am objectively satisfied. The first is that the plaintiff’s severed fingertips were on top of the plywood immediately after the incident. This convinces me that his hand must have been on top of the plywood at the time of the impact. If it had been underneath, his fingertips would have fallen to the floor or into the half-built vegetable bin.
I am also satisfied that the plaintiff’s fingers must have been cut off by the front of the saw as it was advancing, rather than the back of the saw as it jumped back. I am satisfied about this because of my observation of the saw during Mr Saals’ demonstration while giving his evidence, and the photographs of the saw. The blade of the saw is covered by a sprung guard, which opens so as to expose only as much of the blade as is required to cut the thickness of the timber. That is to say, the only part of the blade exposed during cutting is a small arc of a little more than the thickness of the timber being cut. Somehow, the front of the saw must have been slightly elevated and must have moved forward through all four of the plaintiff’s fingers. It seems plausible that the front of the saw was elevated as Mr Saals reached or got close to the end of his intended cut, halfway along the length of the timber, and disengaged the trigger, perhaps at the same time reducing the downward pressure on the guard.
It follows from these findings that there must have been a period of time, no doubt very brief, during which the plaintiff’s hand was on the timber with the tips of his fingers in line with the direction of the cut and ahead of it; and that Mr Saals failed to see it. This can be explained only by Mr Saals having, for that brief period, failed to keep a proper lookout in the danger area: that is the area immediately in front of the saw and in line with the cut.
The evidence is that the saw was an industrial one, larger and more powerful than those typically found in a domestic garage or workshop. The operator of an industrial power saw, on a building site with other tradesman and workers about, has a very high duty to ensure that there is no danger of injury to any person. To fail to keep a proper lookout ahead of a moving saw, in circumstances where the hand of another person is in its path, is a breach of that duty. I am satisfied that Mr Saals was negligent.
Quite apart from his personal fault, it might be argued that Mr Saals, as the licensed builder responsible for the overall project, owed to the plaintiff a duty of care analogous to that owed by an employer, that is a general duty to provide a safe system of work. If it were necessary to do so, I would have no hesitation in finding that the system which resulted in the plaintiff’s injuries was an unsafe one. Because I am satisfied that Mr Saals was personally at fault it is unnecessary for me to consider further the question of any general liability on his part as a quasi-employer.
Different considerations arise in relation to the plaintiff’s employer, Mr Gurcinoski. He had sent the plaintiff to undertake a task in relation to the refrigeration work. He had no actual knowledge that the plaintiff would stop and attempt to assist Mr Saals. He was not in overall charge of the building site. Mr Saals did not answer to him and was not subject to his direction. On the contrary, Mr Saals was the licensed builder on site and if anything, the reverse applied: Mr Gurcinoski might have been subject to some level of direction by Mr Saals.
At the same time, Mr Gurcinoski was well aware that the plaintiff was disposed by personality to help others on site. He knew that the plaintiff had helped other people on site from time to time, including Mr Saals. Indeed, he knew that the plaintiff had, earlier during the project, helped Mr Saals with the cutting of timber using the power saw in question; although I accept that he had been away from the site on the morning and was not specifically aware that the plaintiff had assisted Mr Saals earlier in the day.
I accept that there had been times during the project when Mr Gurcinoski had told the plaintiff not to help other tradesmen on site. I am not satisfied that this was a general or strictly enforced instruction to the plaintiff. It does not seem to me that it was based in any way on concern for the plaintiff’s safety. It seems to me that from time to time, Mr Gurcinoski became concerned that the plaintiff was not there when he needed him because he was off helping someone else. Mr Gurcinoski on those occasions was unhappy with the plaintiff because his absence was interfering with the efficiency of Mr Gurcinoski’s completion of his work under his contract with the owner. Other factors were his awareness that he was paying for the plaintiff’s time, and his irritation that Mr Saals, the licensed builder responsible for the project, had not incurred the expense of employing a builder’s labourer himself.
At the same time, I accept that there were times when it was in everyone’s interest for the plaintiff to help Mr Saals, or one of the other tradesmen on site, with some task, the completion of which was necessary before Mr Gurcinoski could get on with the next part of his job. On those occasions I have no doubt that Mr Gurcinoski encouraged the plaintiff to help others.
It follows that I am not satisfied that the plaintiff, in helping Mr Saals, was in some way committing a breach of a standing instruction from Mr Gurcinoski about how he was to go about the duties of his employment.
Legal basis of duty of employer
An employer owes a non-delegable duty to provide an employee with a safe system of work. The principles were restated by the High Court in Kondis v State Transport Authority (1984) 154 CLR 672. The worker in that case had been injured by the negligence of a contractor to his employer, a crane operator who had dropped an object which struck the worker. It was argued on behalf of the employer that it had not been guilty of any negligence, and that the only negligence was that of the contractor. The employer had delegated the crane task to an apparently competent contractor and should not be found liable for negligence by the contractor. Mason, Murphy, Brennan and Deane JJ all held that the contractor’s failure to adopt a safe system of work constituted a failure by the employer to comply with a non-delegable duty to the worker to provide a safe system. In the words of Deane J at 694:
… in the context of the particular relationship of employer and employee and of the undertaking by the employee of the general obligation to work in the interests of the employer, the content of the employer’s duty to take reasonable care to provide a safe system and conditions of work for the employee is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear.
Such a duty has regularly been found to be owed by a labour hire company, which formally employs workers but provides their services to other companies for whom they carry out their duties in practical terms. In TNT Australia Pty Ltd v Christie [2003] NSWCA 47, the NSW Court of Appeal (Mason P, Foster and Davies AJJA) found that a labour company which assigned a worker to work at a brewery over a period of over nine months was liable in negligence where the worker was injured when a pallet jack ran over his foot. TNT Australia, which conducted the brewery, was in practical terms totally in control of the place and system of work, but the Court found that the labour hire company retained a non-delegable duty of care to provide the plaintiff with a safe system of work. The Court found TNT liable in negligence also, its relationship with the plaintiff being analogous to that of employer and employee, and its duty to the plaintiff being equally non-delegable. As Mason P explained at para [29], the expression “non-delegable duty” is misleading, implying as it does that an employer may not delegate a duty. The legal position is that an employer cannot avoid liability by relying on delegation to a competent delegate. The duty is personal or direct rather than vicarious.
The present case is not one where the employer delegated a function, by contract or otherwise, to the primary tortfeasor. Mr Saals was not in any sense a delegate of Mr Gurcinoski. Nevertheless Mr Gurcinoski as the plaintiff’s employer owed the plaintiff a duty to provide him with a safe place and system of work. He owed this duty notwithstanding that he was not in control of the building site or of the overall system of work applicable to the building project. He was nevertheless responsible for the place of work and system of work in so far as they were applicable to the plaintiff. His opportunity to control the place and system of work was considerably greater, and more direct, than that which is practically available to a labour hire company. The plaintiff’s injury, whilst directly caused by the negligence of Mr Saals in operating the power saw, arose out of an unsafe system of work for which I find Mr Gurcinoski as employer responsible to the plaintiff. Hence I find Mr Gurcinoski liable in negligence to the plaintiff.
I arrive at this decision notwithstanding the judgment of Crispin J in Causoski v Commonwealth of Australia [2004] ACTSC 103, in which his Honour found the Commonwealth as occupier of an office building liable to an employee of a cleaning contractor, in circumstances where the plaintiff was employed as a cleaning supervisor and her place of work was the office building in question. She was injured by the malfunction of a hydraulic lift. His Honour found the cleaning contractor, the plaintiff’s employer, not liable, that is, not in breach of its non-delegable duty to the plaintiff. It seems to me that that decision must be seen as dependent upon its own somewhat unusual facts, and distinguishable from the circumstances of the present case.
Contributory negligence
Whilst, as I have said, I am unable to make specific findings as to the plaintiff’s movements immediately before the accident, I am satisfied that he placed his hand on the plywood a little ahead of the saw and directly in its path. If he had not done so, the accident would not have happened. I have given consideration as to whether his conduct should be characterised as temporary inadvertence, inattention, or the taking of a risk “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man”: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windeyer J at 37; McLean v Tedman (1984) 155 CLR 306 at 315. It seems to me that the plaintiff’s behaviour cannot be so characterised, and that the placing of his hand in the way of the saw must be seen in objective terms as a failure to take reasonable care for his own safety. In arriving at an apportionment reflecting the plaintiff’s share in the responsibility for his injuries, I take account, in relation to Mr Saals, of the fact that a power saw is an extremely dangerous piece of machinery imposing on its operator a very high duty of care; and in relation to Mr Gurcinoski, of the high duty of care on an employer to protect an employee from the risk of injury by dangerous machinery. It seems to me that an appropriate reduction for contributory negligence in relation to each defendant is ten percent.
Apportionment of liability between defendants
The first and second defendants have exchanged notices claiming contribution. In apportioning liability between them I take into consideration the fact that the duty imposed upon Mr Saals as the operator of an industrial power saw was a very high one. It seems to me that Mr Gurcinoski’s breach of the duty to the plaintiff as his employee was of a much lower order. As between defendants, I am of the view that Mr Saals should bear eighty percent of the responsibility and Mr Gurcinoski twenty percent.
Damages
Immediately after the accident, the plaintiff was taken by Mr Saals to the Canberra Hospital where he came under the care of Dr Tony Tonks, plastic, cosmetic and hand surgeon. The plaintiff’s solicitors arranged for the hand to be examined on a number of occasions by Dr Hunter Fry. He noted in 2003 that the plaintiff, then aged thirty-five, had been left-handed for writing but right-handed for throwing and racket sports. He had a history of an injury to the palm of the left hand and wrist in about 1987, cutting tendons and nerves to the ring and little fingers. For a time after this the plaintiff had used his right hand for writing. Dr Fry saw the plaintiff for the first time within a few weeks of the injury. He thought that the initial surgery had been skilfully carried out. The hand was deformed by the loss of the distal phalanges. Dr Fry noted that the plaintiff would not have a normal grip and had lost his fingertips. The injury was a severe one, on an arbitrary scale (minimal – mild – moderate – severe – extreme). He was not expected to resume his previous employment, but seemed more determined than usual, and might find some sort of suitable work. It was too soon to form an opinion about his future employability.
Dr Fry saw the plaintiff at intervals over the next two years or so, the last time before the hearing being on 7 May 2004. He noted at that time that the plaintiff had had further surgery about two months earlier, with revision of stumps under general anaesthetic and a generally favourable outcome, including reduction of tenderness. He still had poor use of the hand and lacked grip. There was little movement in the interphalangeal joints. His injury was still rated as severe on the scale previously mentioned.
The solicitors for the nominal insurer had the plaintiff seen by Dr Peter Battlay, a general physician with experience in hand injuries. Dr Battlay first saw the plaintiff on 27 February 2003, at which time he was totally incapacitated for employment and the prognosis was guarded. Dr Battlay thought that the plaintiff would have a major permanent loss of function of the dominant right hand. He saw the plaintiff again early in September 2003. The plaintiff had some stiffening of the remaining interphalangeal joints of all four fingers. He was suffering, Dr Battlay thought, from reflex sympathetic dystrophy. He had suffered from some infection which was not expected to recur. The stump of the index finger was quite sensitive.
The solicitors for the second defendant sent him to Dr W B Connolly, a highly experienced hand surgeon, in March 2004. Dr Connolly confirmed that there was unsatisfactory grip or grasp mechanism in the right hand, and that the plaintiff needed to use his left hand for activities requiring such mechanism. This led to a restriction in his social and leisure activities. Further surgery was then in contemplation.
Loss of the tips of the fingers is a particularly serious injury. It is bad enough to lose the tip of one finger. If several digits are amputated the relative importance of each remaining digit assumes an additional dimension. To lose four fingertips, as the plaintiff did, is a matter of immense significance to any person. Digital amputations affect hand function in many ways. First, there are local problems related to the amputation stump itself, problems which are common to all digits. Secondly, there are problems related to the loss of digital length which vary in importance from digit to digit. Partial or total loss of a fingernail constitutes not only an aesthetic loss, but an important functional one. A short finger is obvious. If this is accompanied by loss of function and grip, it is of greater significance. The loss of digital length compromises the function of a shortened finger and its appearance. The plaintiff in this case has lost the distal phalanx of all four fingers of the right hand. This is an injury with immense and permanent repercussions for him.
Counsel were invited to put submissions as to an appropriate award of general damages for pain and suffering and loss of amenity. The evidence is that the pain has been excruciating. Counsel for the plaintiff submitted that an appropriate award was of the order of $120,000. Counsel for one of the defendants suggested a figure of $80,000. I remind myself that I am assessing damages in an era when the legislatures in some Australian jurisdictions have fixed a ceiling for general damages of the order of $340,000 for a most extreme injury, the assumption being that the ceiling is something less than a court uninhibited by such legislation might award. In the present case I am satisfied that an award of general damages of $120,000 is entirely justified by the severity of the injury.
It is nearly four years since the accident. The plaintiff has many years to live. I apportion $40,000 to the past, which attracts interest of $4,000, taking account of the fact that the pain in the period immediately after the accident was intense.
Wage loss to the date when addresses were completed was agreed at $52,470. By that time, the plaintiff was back at work and there was no continuing claim for loss of income for the present. An award of interest on past economic loss to that date at $1,000 was not opposed. I allow loss of superannuation benefits at 9% of the past economic loss, which I round to $4,720.00.
By way of future economic loss, senior counsel for the plaintiff mounted an argument in favour of an award for 27 years at $375 per week (multiplier 970.06) less 15% for vicissitudes, a total exceeding $300,000. It does not seem to me that a loss of that magnitude is made out on the evidence. True it is that the plaintiff had worked for most of his adult life, though with periods between jobs. By the time of the hearing, he was back in work but with no guarantee of continuity. I accept that in an employers’ market the plaintiff might find himself out of work, whilst at times of full employment his experience and skills might be in demand. One can do no more than make an informed guess as to the future balance of employment opportunity. The plaintiff undoubtedly has experience and skills, but when conditions are harsh there will be many in the employment market with more to offer than he can. He is well-motivated and will, for the rest of his useful employment life, work when the opportunity presents itself. He is unquestionably impaired by comparison with his condition prior to the injury. One can do no more than to put a general figure on his loss. For future economic loss I award $120,000.
I allow $10,800.00, being 9% of that figure, for future loss of superannuation benefits.
It is agreed that up to the date of hearing, the plaintiff had lost $9,734.80 in treatment expenses. By the date of hearing, he was spending little, other than by way of chemist expenses for painkillers and the like. I award $10,500 for the past and $12,000 for future medication and other medical expenses.
It is agreed between the parties that the third defendant has paid, by way of indemnity to the first defendant, the sum of $6,415.01 by way of rehabilitation expenses. As I explained in Andrikis v The Nominal Defendant (2004) 190 FLR 136, rehabilitation expenses are payable by an employer by virtue of specific provisions in the Workers Compensation Act 1951 which are quite separate from the compensation provisions of that Act. They are not covered by the workers’ compensation policy: a workers’ compensation insurer has no obligation to indemnify an employer in respect of such expenses, and they do not form part of the compensation which is recoverable by a worker in an action under the general law, nor are the recoverable by an employer or insurer from a plaintiff out of damages recovered under the general law. Equally, they are not repayable by a defendant liable for damages under the general law to a workers’ compensation insurer. For present purposes, the third defendant stands in the position of a workers’ compensation insurer.
An appeal from my decision in Andrikis was upheld by consent, but for a reason not applicable in the present circumstances. The rehabilitation provider in Andrikis was a Commonwealth statutory authority, a fact not in evidence. Recovery rights were conferred upon the authority by a Commonwealth statute, the applicability of which had not been appreciated at first instance.
My reasoning in Andrikis was approved by Gray J in Allianz Australia Insurance Ltd v Insurance Australia Ltd [2006] ACTSC 35. An appeal from his Honour’s judgment was heard by the Court of Appeal on 8 November. The plaintiff is not entitled, in the state of present authority, to recover the rehabilitation expenses. The position may be otherwise if the appeal from Gray J’s decision is upheld. I shall hear counsel as to whether I should enter judgment immediately or await the decision in that appeal before doing so.
In relation to the provision of gratuitous services, there was no real issue that the plaintiff’s partner, Sandra Johnston, looked after him in the early stages when he could do very little for himself. The need for her help reduced gradually over time. There are still a number of things which he was able to do before the accident and is unable to do any longer. The plaintiff and Sandra Johnston at one time lived together but for a lengthy period before the accident, and since, they have lived in separate establishments in Canberra but spent a lot of their spare time together. This, I find, is likely to continue indefinitely. It seems a sensible practical arrangement for them.
It is agreed between the parties that an appropriate rate for services provided by his partner to the plaintiff is $18 per hour. This is not an exercise which can realistically be conducted on a mathematical basis. For the period from the accident to date, I award $25,000 plus interest of $3,000. For the future, I award $30,000.
The Fox v Wood component (interest on workers’ compensation) is agreed at $10,156.14.
The total of the components is as follows:
General damages $120,000.00 -interest $4,000.00 Past wage loss $52,470.00 -interest $1,000.00 Past loss of superannuation $4,720.00 Future economic loss $120,000.00 Future loss of superannuation $10,800.00 Past treatment $10,500.00 Future treatment $12,000.00 Griffiths v Kerkemeyer - past $25,000.00 -interest $3,000.00 -future $30,000.00 Fox v Wood $10,156.14 Total $403,646.14
The total sum will be reduced by ten percent to take account of the plaintiff’s contributory negligence. I shall hear counsel as to whether I should enter judgment for the amount so adjusted immediately, or await judgment in the recent appeal on the question of recoverability of rehabilitation expenses.
Subject to resolution of that question, and any submissions as to costs, I would propose to make the following orders:
(a) Judgment be entered for the plaintiff against the first and second defendants for 90% of the damages assessed.
(b) The first and second defendants pay the plaintiff’s costs.
(c) Judgment be entered for the first defendant against the second defendant for contribution of 80% of the amounts recovered by the plaintiff
(d) Judgment be entered for the second defendant against the first defendant for contribution of 20% of the amounts recovered by the plaintiff.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 10 November 2006
Counsel for the plaintiff: Mr M J Cranitch SC & Mr J R Sainty
Solicitors for the plaintiff: Blumers
First defendant: In person
Counsel for the second defendant: Mr L V Gyles
Solicitors for the second defendant: Moray & Agnew
Counsel for the third defendant: Mr G A Stretton
Solicitors for the third defendant: Mallesons Stephen Jacques
Date of hearing: 26, 27, 28 July 2005
Date of judgment: 10 November 2006
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