Delahunt v Westlake & Westlake No. Scgrg-98-1672 Judgment No. S366

[1999] SASC 366

DELAHUNT v WESTLAKE & WESTLAKE
[1999] SASC 366

FULL COURT:     Millhouse, Duggan and Lander JJ

1 MILLHOUSE J.  A nasty accident with serious consequences.
2 The appellant, in 1990, was an apprentice electrician.  It was a shared apprenticeship on the West Coast.  The male respondent was the appellant's master: the appellant had worked with him for nine months.  [The respondents are husband and wife but it is the husband who is the electrician and I shall be referring only to him.]  The appellant had been working with either the respondent or with the respondent's employee David Klante.  Sometimes the three worked together. 
3 It happened at the homestead on a farming property some way out of Wudinna.  The owner had complained about the TV reception. Klante and the appellant were there to do the job.  In attempting to put the reception right it was necessary to adjust the antennae at the top of a thirty foot high tower. It meant a good deal of fiddling to try to get the reception better.
4 The appellant, at Klante's request, went up the tower.  He was wearing safety equipment, a step-in harness and belt connected to D-rings on each side of the harness.  He had been up such towers wearing such equipment about a hundred times before in the previous five months.  The respondent had first shewn him how to use the equipment and had watched to see that he used it properly.    There had been no problem.
5 On this day the appellant went up the tower and did what Klante asked of him.  It didn't do much good for the reception.  He came down and they had a twenty-minute or so smoko.  Then he went back up the tower again and fell: he was unconscious on the ground.  We do not know quite what his injuries were, but that damages have been agreed at $838,000 shews they must have been severe.
6 The appellant sued the respondents for damages.  The action was heard in the District Court.  The learned Judge hearing the case dismissed the claim. 
7 Mr Andrew Collett, for the appellant, accepted the accuracy of the learned Judge's recital of the facts and of his exposition of legal principle.  It is only in his application  of the principles to the facts that he has erred, Mr Collett said.
8 I have given a quick sketch of the facts.  Here, at a little greater length, is how the learned Judge described the accident itself:-
"Again at Klante's direction, the plaintiff re-climbed the tower, taking with him a new television cable.  On this occasion, his task was to connect the new cable to a booster box at the top of the tower.  Again he used the harness.  Klante asked him to reposition one of the antennas, and he did so.  Klante told him that it made no difference to the reception, and asked him to hook up the new cable.
Klante saw the plaintiff grab a pole, move forward to shift his feet from one strut to another, and lean back.  When the plaintiff first leaned back, Klante heard a clicking sound and the plaintiff say 'oh shit'.  The plaintiff then fell to the ground and was rendered unconscious.  Klante saw that the belt was hooked to the right hand side but not to the left hand side of the harness.  He thinks that the fall occurred between 10.15 am and 10.30 am.  He thinks that the plaintiff had been up the tower for 10 to 15 minutes.  Klante remained with the plaintiff until an ambulance arrived.
The fall could only have resulted from the separation of the latch from the D-ring on the left hand side of the harness.  No criticism is levelled at the design and condition of the harness and the latches, and the parties are in agreement that the plaintiff's clothing must have become caught between the hook and the gate when the plaintiff first attached the latch of the belt to the D-ring.  I am unable to say whether it was his T shirt or jacket."
9 Mr Collett argued that the respondent had not done enough in those five months to instil into the appellant the need to check the harness every time he used it, to listen to the click of the catch as it closed round the D-ring: he should have instilled this into the appellant until it became habit: this was a nineteen-year old apprentice and he needed close supervision.
10 The learned Judge described the training the respondent had given to the appellant:-
"When the plaintiff began to work for him five months before the fall, he asked the plaintiff whether he had worked on towers and whether he was afraid of heights.  The plaintiff's answer to both questions was no.  Within the first or second week, and whilst working at the property of John Edmonds, the defendant gave instructions to the plaintiff on how to use a harness.  He demonstrated how to step into the harness, tighten it up and put it on.  He told the plaintiff that, as you clip the loose end of the belt to the harness, you listen for the click and watch it go in.  He told the plaintiff that you test the connection by hanging onto the tower and leaning back.  They then climbed a 60 foot tower on the property.  When they got to the top, the defendant again demonstrated the various steps with his harness and watched the plaintiff do the same with the plaintiff's harness.  When they returned to the ground, he asked the plaintiff how he felt and was he afraid of it and the plaintiff said no.  On subsequent occasions in the following weeks, he watched the plaintiff put his belt on, climb the tower and hook himself on in the way that he had been instructed.  The defendant said that, over the five month period, he and the plaintiff worked together on towers two or three times a week.  On each occasion, he and the plaintiff climbed a tower probably twice on average.  Right up to the time of the fall, he was quite happy with the way the plaintiff was going up and down towers and using a harness.  The defendant said that, when he wore a jacket, he left it open because it was more comfortable to wear the harness underneath.  In all his 30 odd years as an electrician, he has never experienced or heard of clothing getting caught in the latch of a harness.  He has never had problems in working on towers or with his hearing in moderate, fresh or strong breezes."
11 The respondent's experience - or lack of it - of clothing getting caught was confirmed by an expert witness whom the appellant called, Mr Martin Eric Gibson.  Mr Gibson had been an ETSA linesman for five years to 1989 and then served on a safety committee for nine months as an industrial research officer with the Electrical Trades Union.  Quoting the words of the learned Judge, "Gibson knew only of one accident and one near miss when clothing became caught in a latch and obstructed the gate from closing properly."
12 At the hearing Mr Gibson tested the harness in the courtroom.  The tests shewed that if clothing be caught between the hook and the gate when doing up the harness there is no sound of a click.
13 There had been amply sufficient instruction.  The appellant seems to have acted on what he was told and shewn to do.  Mr Klante said that this was so on the morning of the accident. 
14 Mr Collett argued that at intervals in those five months the respondent should have been reminding the appellant, to instil the habit of always checking that his belt was done up.  I put to Mr Collett that what he said the respondent should have been saying, would have made him look like a fussy maiden aunt: to use a colloquial phrase, it would have been a "turn-off": the appellant more than likely would have ceased to listen.  After all, the appellant had been up towers a hundred times before in the five months.  He had taken correct safety precautions.  If a hundred times weren't enough for him to acquire good habits one wonders how many more times would have been.
15 Mr Collett conceded that the learned Judge has correctly set out the principles of law:-
"The duty, to whomever it falls to discharge it, is that of a reasonably prudent employer, and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.  The degree of care and foresight required from an employer must naturally vary with the circumstances of each case.   Hamilton v Nuroof (WA) Pty Ltd.
The inexperience of a worker is a factor which may increase an employer's duty of care.  Kerry v Carter and McInerney v Schultz.
It is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence.  The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.  McLean v Tedman.
...
As to whether the defendant was in breach, I refer back to the defendant's and Klante's evidence.  In the final analysis, I am unable to find that the defendant's instructions to the plaintiff and his and Klante's continued supervision of the plaintiff fell short of a reasonable response in all the circumstances. ... The defendant gave clear instructions to the plaintiff at the beginning of the period, and thereafter was happy with the way the plaintiff used the harness.  Klante knew that the plaintiff had received instructions from the defendant, and according to his own observations the plaintiff knew what he was doing.  The risks were self-evident.  As the plaintiff himself said, 'it is commonsense, just check to see if your belt's done up securely'.   The plaintiff gave the defendant and Klante no reason to think either that he had misunderstood the instructions or that he might ignore them through inexperience, complacency, inadvertence or otherwise."
16 I agree.  My impression of the evidence and having heard Mr Collett's arguments and those in response by Miss Robyn Layton QC are that this was a freak accident.  It would not have mattered what more either the respondent or Klante had said or done.  Most unfortunately the appellant simply had not checked that his belt was securely fastened on each side.  I expect he hadn't noticed that there had been no click.  He should have been listening for it: that is what he had been taught.  That being so he was the author of his own injuries.
17 I echo the learned Judge in saying, "This was tragic accident, and the plaintiff is deserving of the utmost sympathy."  Yet I can suggest only that the appeal be dismissed.
18 DUGGAN J.    In my view this appeal should be dismissed for the reasons given by Millhouse and Lander JJ.
 19 LANDER J.   I have had the advantage of reading the reasons of Millhouse J.
20 The appellant suffered very serious injuries which have left him with serious disabilities.  His plight deserves considerable sympathy.
21 This Court is called upon to decide whether the respondents, and more particularly the male respondent in this matter are responsible, in the legal sense, for those injuries.
22 There is no doubt that the male respondent owed the appellant a duty of care, notwithstanding the appellant was not employed by the respondents.  The Trial Judge proceeded upon the basis that the duty of care which was owed, notwithstanding there was no contract of employment between the appellant and the respondent, was the equivalent of that of a reasonably prudent employer. 
23 I agree, in the circumstances of this case, that even though there was no relationship of employer and employee between the appellant and the male respondent it was appropriate to proceed upon the basis that the duty of care owed by the male respondent was akin to that owed by an employer to an employee.  The respondents owed the appellant a non delegable duty of care to provide the appellant with a safe system of work which included a duty to avoid exposing the appellant to an unnecessary risk of injury.  To proceed upon that basis is to make the most favourable assumption in favour of the appellant.
24 The precise ambit of the duty of care which falls upon an employer varies with the circumstances of each case: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25.
25 The risk of injury, in this case, was self evident.  Unless the appellant properly fastened the belt there was a real risk that the appellant would fall and suffer very serious injuries.
26 In this case because it was known to the respondent that the appellant was relatively inexperienced the duty of care included a duty to avoid exposing such a relatively inexperienced worker to the risk of unnecessary injury.
27 The work which the appellant was called upon to perform in climbing towers obliged the respondent to exercise greater care because of the risk of catastrophic injury to the appellant.
28 In my opinion, there was no doubt that the respondent had to take care to ensure that this young and inexperienced "employee", who was called upon to work in such dangerous circumstances, was not exposed to an unnecessary risk of injury.
29 It meant that the respondents had to provide the appellant with appropriate equipment to safeguard the appellant in the carrying out of his work on the harness.  The equipment with which the appellant was provided was adequate and appropriate in the circumstances.  The safety harness, which was adequate to protect the appellant, was a very simple and straightforward piece of equipment. There is no suggestion, on this appeal, that the equipment was not appropriate notwithstanding that it was equipment failure which allowed the appellant to fall.
30 It also meant that the male respondent had a duty to give the appellant careful and appropriate instruction and direction in the performance of his work on the towers so as to secure him from the risk of injury: O'Connor v Commissioner for Government Transport (1954) 100 CLR 225.
31 The learned Trial Judge found, and it was a finding open on the evidence, that the male respondent gave proper instructions to the appellant in the manner in which the appellant should use the equipment with which he was provided to protect himself against injury.  Again, there is no suggestion, on this appeal, that the instructions given the appellant were inadequate.
32 The only question, in this case, was whether or not the respondent failed to sufficiently reinforce the instruction when the appellant climbed a tower.  It was submitted, on behalf of the appellant, that the duty of care which fell upon the male respondent required the male respondent to continue to instruct the appellant in the use of the safety harness.
33 I do not agree that the duty of care required the respondent to continually remind the appellant of the manner in which the equipment ought to be used.
34 As I have already said the respondent gave the appellant adequate instruction when the appellant first came within his control and thereafter the appellant was supervised by both him and his employee, Mr Klante for a period of five months.  The appellant had climbed a tower more than 100 times since first being instructed.
35 There was no suggestion that this appellant had any difficulty, after five months, in operating this equipment. There was no suggestion that this appellant was the type of person who was careless about his own safety or had reached a level where he was complacent about his own safety. This was not a case of the kind where the male respondent should have appreciated that the appellant would be guilty of inadvertence or negligence in regard to his own safety: McLean v Tedman (1984) 155 CLR 306 per Mason, Wilson, Brennan and Dawson JJ at 311-312.
36 If the appellant's argument was correct then it would mean that the respondent would have had to warn, or perhaps even demonstrate to the appellant on every occasion that the appellant used the safety harness, the manner in which the safety harness ought to be operated for the appellant's own protection.  That kind of warning or instruction was not reasonably required.
37 In any event, the appellant's injuries were not caused by a failure to use the safety harness as instructed but the fall was due to the safety harness failing in circumstances which were unforeseeable.
38 In my opinion, the duty of care was not as wide as that contended for by the appellant, and even if it was, in my opinion, the appellant has not established, on the evidence, that the failure to comply with that wider duty of care was a reason for his fall.
39 As I have said in these brief reasons the appellant is entitled to the utmost sympathy for the tragic consequences of this fall but regrettably, so far as the law is concerned, those consequences are the result of "an accident".
40 In my opinion the appeal should be dismissed.

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