Gerald Brennan v Capital Weed Control Pty Ltd
[2013] ACTSC 78
•2 May 2013
GERALD BRENNAN v CAPITAL WEED CONTROL PTY LTD AND ANOR
[2013] ACTSC 78 (2 May 2013)
NEGLIGENCE – personal injury – claim against employer – claim by employer against third party for contribution as vicariously liable for negligence of its employee – whether employee of third party owed duty of care to plaintiff – no duty of care established – claim for contribution dismissed
Civil Law (Wrongs) Act 2002 (ACT), s 21 and s 42
No. SC 512 of 2009
Judge: Master Harper
Supreme Court of the ACT
Date: 2 May 2013
IN THE SUPREME COURT OF THE )
) No. SC 512 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: GERALD BRENNAN
Plaintiff
AND:CAPITAL WEED CONTROL PTY LTD
(ACN 107 759 688)
Defendant
AND:AUSTRALIAN CAPITAL TERRITORY
Third Party
ORDER
Judge: Master Harper
Date: 2 May 2013
Place: Canberra
THE COURT ORDERS THAT:
the defendant’s claim for contribution from the third party be dismissed
the defendant pay the third party’s costs
On the morning of the hearing of this action for damages for personal injury, a settlement was reached between the plaintiff and the defendant, for a figure which the third party accepted as reasonable. This leaves only the claim for contribution by the defendant against the third party for determination by the Court.
The plaintiff was an employee of the defendant. He was injured on 21 May 2008 when a tree fell on him. He was a member of a team engaged in weed control along Ginninderra Creek in the Palmerville Heritage Park adjacent to William Slim Drive in Belconnen, between the suburbs of McKellar and Nicholls. The defendant company was carrying out this work pursuant to a contract with the third party, the Australian Capital Territory, through the Parks, Conservation and Lands division of the then Department of Territory and Municipal Services.
The plaintiff’s claim against the defendant was framed in negligence, the general particulars being failure to provide a safe workplace and failure to provide a safe system of work.
The third party claim was also in negligence. The negligence alleged was that of Ms Jenny Conolly, a pest and weeds officer at that time with the Department. Ms Conolly was the field supervisor and contract manager for the contract between the defendant and the third party. The negligence alleged against Ms Conolly was that, following a report by the defendant’s foreman, Mr Graeme Watters, that trees in the area where his crew were to work were leaning over and had apparently been damaged with a tomahawk or something similar, Mr Gregory Harris, a director of the defendant, contacted Ms Conolly and informed her of the report. She said that she would inspect the area. Work was suspended pending the inspection. The allegation was that she attended the site on either the afternoon of 20 May or the morning of 21 May 2008 and inspected the damaged trees. She then declared the area safe for the work to go on. At about 8.15 am on 21 May 2008, one of the trees fell and struck the plaintiff causing him injury. The defendant asserts that in the circumstances the plaintiff’s injury was caused by Ms Conolly’s negligence, for which the third party is vicariously liable.
A claim by a defendant against a third party for contribution is a creature of statute. The applicable legislation is now Part 2.5 of the Civil Law (Wrongs) Act 2002. Section 21 of the Act provides that a person who is liable for damage caused by a wrong can recover contribution from someone else who is also liable for the same damage. The contribution is to be an amount that the Court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage. It is thus an essential ingredient of the entitlement to contribution that the entity from which it is claimed would have been liable if sued by the plaintiff. The defendant’s claim against the Territory is framed solely in vicarious liability for the negligence of Ms Conolly. The defendant will have to establish that the plaintiff would have succeeded in a claim in negligence against Ms Conolly. It will accordingly be necessary to consider whether Ms Conolly owed a duty of care to the plaintiff, and if so, the ambit of that duty.
The evidence
The contract was dated 5 February 2008. It related to six areas, with a contract price for each area. One of the areas was Palmerville Heritage Park. The task was the removal of what were described as woody weeds, including cotoneaster, hawthorn, broom and privet; spraying of blackberries; and removal of stumps. The plaintiff explained in evidence that he and the rest of the crew were cutting and removing fallen trees and branches from the ground. The day before his injury, the plaintiff and other members of the crew encountered a stand of trees which had been vandalised. He was working in the vicinity of this stand the next day when either a tree or a branch fell on him, from a height well above his head, causing him injury.
The plaintiff had been working for the defendant for five or six months on the Palmerville job. He was one of a crew of about five, under the supervision of Mr Watters. The injury happened at about 8.00 am from his recollection. The crew started work at 7.00 am although he had been a little late starting work on that morning.
The plaintiff knew Ms Conolly by sight. His evidence was that he did not see her on the day before the accident, or the morning of the accident before his injury. The plaintiff thought that the crew had been working in the area for about a fortnight before the accident. He had noticed trees which appeared to have been vandalised. He said it looked as though trees had been placed on top of one another to make something like a small humpy. He first noticed this on the first day on site, well before the injury.
Mr Harris gave evidence that he was a director, and the owner, of the defendant company. Mr Watters was his foreman. He confirmed that he had been dealing with Ms Conolly in relation to the contract, and that he had a crew of five or six working in the Heritage Park area. He said that on 20 May, the day before the plaintiff’s injury, he received a telephone call from Mr Watters to say that some trees in the area appeared to have been damaged by an axe or tomahawk. Mr Watters had some reservations as to safety. Mr Harris said that he instructed Mr Watters to leave the area and to move on to another area along the creek line. He said that he would call Ms Conolly, and did so. Ms Conolly said that she would come out to the site immediately and look at it.
His evidence was that he received a call from Ms Conolly during the afternoon. She told him that she had been for a walk around the site and was happy for work to continue.
The next morning, Mr Harris received a telephone call from Mr Watters to tell him that a tree had fallen and injured the plaintiff. He immediately rang Ms Conolly, and both of them went to the site. This was soon after 8.00 am from his recollection. Ms Conolly said that work on the site was to cease. Ambulance officers arrived in due course and conveyed the plaintiff to hospital.
On the evening following the accident, Mr Harris received a text message on his mobile telephone from Ms Conolly as follows:
Hiya i am genuinely upset about this morning i feel responsible and will support u if it means i get dragged thru the mincer with workcover jen
Mr Harris agreed that there were a number of large poplars along the creek. There were also willows.
Mr Harris had attended the site a number of times during the period of the contract. He had not noticed any vandalised trees. He had done work for Ms Conolly for a period of five or six years before the incident. He made a practice of contacting her whenever there was any problem about a job. He was “pretty sure” that he had telephoned her the day before the plaintiff’s injury, using his mobile phone, and that she had called him back after her inspection.
Mr Harris said that subsequently there had been a Workcover investigation into the injury, and that no action had been taken against his company.
Senior counsel for the third party put to Mr Harris in cross-examination that he had concocted the story that he had called Ms Conolly and that she had approved work continuing, in order to deflect blame from himself and his company in the event of a Workcover prosecution. He denied this.
Mr Watters had been employed by the defendant as foreman at the time of the plaintiff’s injury, and remained in that employment when he gave evidence. He said that the job had been to remove woody weeds from a poplar plantation where there were also a lot of suckers. This involved cutting timber already on the ground, and administrating poison to some plants along the creek bed. On 20 May, the day before the plaintiff’s injury, he noticed damage to a stand of poplar trees, apparently by axe or tomahawk, about a metre above the ground, with some trees leaning precariously. He informed Mr Harris, and meanwhile deemed it too dangerous for staff to continue with the work. Some time later he saw Ms Conolly at the site, either on the same day or early the following morning. He knew Ms Conolly from that job and earlier jobs.
When Ms Conolly attended the site before the accident, Mr Watters had a conversation with her. He pointed out the damaged trees and his opinion about their danger. She had a look around and then told him that it was safe to proceed, but to do so with care. On the morning of the accident, following a site meeting of the crew, work commenced. Mr Watters was driving an excavator. Mr Watters did not see the tree fall on the plaintiff but his attention was drawn to the accident immediately afterwards. The plaintiff was lying on the ground with a fallen poplar over his leg, more than 5 m long and 25 to 30 cm in diameter. The crew had to cut the tree into manageable lengths with a chainsaw to get it off the plaintiff.
Mr Watters had been working for the defendant company for about five years before the plaintiff’s injury, and about eight years by the time he gave evidence.
Mr Watters’ evidence was that when he saw the vandalised trees the day before the plaintiff’s accident he rang Mr Harris and also rang Ms Conolly. Mr Harris asked him to contact Ms Conolly, and he did so. He did not know whether Mr Harris had spoken to her as well. He had her telephone number in memory in his own phone from earlier jobs.
A statement was tendered by consent by Rodney Brown, another member of the crew. The statement had been taken by an investigator in April 2009, almost a year after the accident. Mr Brown said in the statement that he had been working for the defendant company for about eighteen months. The crew had been working on the Ginninderra Creek contract for about two weeks. On 20 May 2008, the day before the plaintiff’s accident, he noticed that a number of trees had been damaged. Some had fallen to the ground and others were leaning against other trees. Mr Brown drew the problem to the attention of Mr Watters. Mr Watters said that he would contact Ms Conolly. The crew moved to another area and kept working for the rest of the day.
The next day, 21 May, Mr Brown arrived at the park at about 7.00 am with other crew members. At about 8.00 am Ms Conolly arrived. She walked around the area with Mr Watters, after which Ms Conolly departed. The crew walked through the area and saw a number of leaning trees which needed to be removed to make the area safer. Mr Brown felled a poplar tree which was leaning against another tree. As he finished this task he looked up and saw a poplar tree falling toward the plaintiff, who had his back to it. He said that the tree was about 15 m high and 80 to 90 cm in circumference. He saw the tree fall on the plaintiff and push him to the ground. One of the crew called an ambulance. Mr Harris also arrived at the scene, and soon after Ms Conolly arrived. After a discussion with Mr Harris and Ms Conolly, Mr Watters told the crew not to work in the area of the stand of poplars, and to start work some distance away, which they did.
The investigator who had taken the statement from Mr Brown, Paul Eagar, is a former police inspector. He made contact with Ms Conolly in the course of his investigation, which I take it would have been in about April 2009. He had a telephone conversation with her. His evidence was that he asked her whether he had approved work being carried out by the defendant company and whether she had attended the area before the plaintiff’s accident. She told him that she had been out to the site and “had cleared the staff to continue working in that park”. She indicated at that time that she was prepared to make a written statement to that effect, but this did not eventuate. Mr Eagar expanded on the conversation in cross-examination, saying that Ms Conolly told him that she had been out to the site the day before the accident after concerns were raised by staff of the defendant, to inspect the area, after which she approved work continuing. She had also been to the site again following the accident. Mr Eagar conceded that he did not have any note or other written record of the telephone conversation with Ms Conolly. His evidence was reliant on his memory of a conversation some two years earlier.
Ms Conolly was called by senior counsel for the third party. She was by then still working with ACT Parks and Conservation but in a different position. At the time of the plaintiff’s accident she had been the invertebrate pests and weeds officer with the service and had been in that position for seven years. She held a diploma in horticulture from the Canberra Institute of Technology.
Her evidence was that she had been at the site last before the plaintiff’s injury about a week earlier. She went to the site after the plaintiff’s injury and saw him lying on the ground. She was very upset. He had clearly been seriously injured. She took photographs of the trees and noticed that they had been freshly vandalised. She saw fresh axe marks on the trees. She thought that the damage was no more than a matter of days old.
Ms Conolly denied receiving a telephone call on 20 May, and denied going to the site on 20 May. She also denied going to the site on 21 May before the plaintiff’s injury. She denied receiving a telephone call from Mr Watters before the injury, and she denied giving any telephone clearance for work to proceed before the accident.
She agreed that she had sent a text message to Mr Harris that evening. She said that she had sent this from her home. She had been extremely upset to have someone injured on her work site and needed to talk to someone about it. She was asked about a telephone record which suggested that she had telephoned Mr Watters on the same evening. She did not recall doing so but agreed that she might have. She had a recollection of speaking to an investigator some time after the event but could not remember his name or details of their conversation.
Senior counsel for the defendant put to Ms Conolly in cross-examination that, having no memory of her conversation with the investigator, she could not deny telling him that she had attended the site, inspected it and cleared the area for work to proceed. Her response was “well, I don’t remember stating that”. She subsequently said that she would not have said it because she had not been there.
She was asked whether she was saying that Mr Watters was fabricating the story about her attendance on site, and she said that he was. She was asked the same question about Mr Harris and gave the same answer. She was then asked whether Mr Eagar, the investigator, was also fabricating the story, and she said that he also was.
There were various contemporaneous documentary records put into evidence. Ms Conolly’s evidence was that she used a departmental vehicle for work purposes. Running sheet records were tendered, completed in Ms Conolly’s handwriting for the period from 19 to 22 May 2008. These showed that she had driven from her headquarters at Stromlo to Belconnen at 9.00 am on 19 May 2008, returning at 11.00 am; at 9.00 am on 20 May, returning at 11.15 am; at 9.00 am on 21 May, returning at 10.00 am; and at 10.30 am on 21 May, returning at 12 noon. It appears that these entries may have been made at the same time, perhaps some time after the event. Entries by other staff made following these entries related in some cases to earlier dates, suggesting that they were not necessarily always entered immediately.
Telephone records in evidence confirm that Ms Conolly sent the text message to Mr Harris’ mobile telephone number set out at paragraph [12] above, at 6.05 pm on 21 May.
Telstra records confirm a number of telephone calls made from Mr Harris’ telephone to Ms Conolly’s work mobile, including five calls made between 8.39 am and 11.16 am on the morning of 21 May 2008.
Optus records show numerous calls made from Ms Conolly’s work mobile telephone to Mr Harris’ mobile telephone, including eleven calls between 28 April and 12 May, one at 10.21 am on 21 May, and further calls on the mornings of 21 and 22 May.
Factual findings
I did not form the view that any of the witnesses were giving deliberately untruthful evidence. It seemed to me that, more than three years after the event, all were doing their best to give evidence truthfully to the best of their recollection. Inevitably, after the passage of time, recollections will vary and in some respects will be unreliable.
I reject the suggestion that witnesses in the defendant’s camp have fabricated a version of events to suit their purposes, and I also reject the suggestion that Ms Conolly has made up a story to protect her position.
I accept in general terms the evidence that members of the defendant’s crew observed damage, apparently caused by vandalism, to poplars in the area where they were working. I accept that the foreman, Mr Watters, telephoned Mr Harris for instructions. I think it most likely that Mr Harris told Mr Watters to call Ms Conolly and ask her to come out to inspect the damage. Mr Watters was not asked his mobile telephone number and that is not in evidence, and hence unavailable to check against the records produced in relation to Mr Harris and Ms Conolly’s telephones.
I think that more probably than not Mr Watters telephoned Ms Conolly and told her about the damage to the trees. I am satisfied on the balance of probabilities that she attended the site, either on 20 or 21 May, and conducted something in the nature of an informal inspection with Mr Watters. I am satisfied that she came to the view, and expressed the view to Mr Watters, that the site seemed to be safe for work to proceed. I cannot be sure that she was aware that Mr Harris and Mr Watters were in effect putting in her hands the decision as to whether or not work should proceed. I cannot be sure that she was doing any more than telling Mr Watters that so far as her division, Parks, Conservation and Lands, was concerned, there was no impediment to the work proceeding. I am not satisfied that as a result of anything said or otherwise conveyed to her, she was aware that she was in any way taking responsibility for the safety of the defendant’s employees on the site.
Senior counsel for the defendant seemed to place reliance in closing submissions to the Territory having some primary liability, over and above its vicarious liability for any negligence on the part of Ms Conolly. No such primary liability was pleaded, nor was the basis of any such liability articulated in address. I am not satisfied that the defendant has established that the Territory owed any direct duty of care to the plaintiff, or that the plaintiff could have succeeded against the Territory other than as vicariously liable for any negligence by Ms Conolly.
Conclusion
On the facts as I have found them, it does not seem to me that a duty of care arose between Ms Conolly and the plaintiff. It was not made clear to her by Mr Watters that the defendant was relying on her decision as to whether it was safe for its employees to resume work in the area of the plaintiff’s injury. She was a relatively junior ACT Public Servant. Her responsibility was to manage the contract with the defendant and to make sure that the defendant carried out the work it had contracted to do. I am not satisfied that this placed Ms Conolly in a position where she had a duty of care to take precautions to avoid the risk of injury to the plaintiff which eventuated.
Section 42 of the Civil Law (Wrongs) Act provides that for deciding whether a person was negligent, the standard of care required of the person is that of a reasonable person in her position who was in possession of all the information that she either had, or ought reasonably to have had, at the time of the incident out of which the harm arose. I am not satisfied that a reasonable person in the position of Ms Conolly would have done any more than she did, in relation to the risk of injury to the plaintiff.
I am accordingly not satisfied that Ms Conolly is a person, in the words of s 21 of the Act, who is also liable for the same damage as the damage caused to the plaintiff by the admitted negligence of the defendant.
The defendant’s claim against the third party therefore fails, and will be dismissed with costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 2 May 2013
Counsel for the plaintiff: Mr D A Shillington
Solicitors for the plaintiff: Baker Deane and Nutt
Counsel for the defendant: Mr G A Stretton SC
Solicitors for the defendant: Mallesons Stephen Jacques
Counsel for the third party: Mr B A Meagher SC
Solicitor for the third party: ACT Government Solicitor
Date of hearing: 5 September 2011
Date of judgment: 2 May 2013
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