Gomes v Metroform Pty Limited

Case [2005] NSWCA 171

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Gomes v Metroform Pty Limited [2005]  NSWCA 171

FILE NUMBER(S):
41018/03

HEARING DATE(S):               16 March 2005

JUDGMENT DATE: 18/05/2005

PARTIES:
Agostino GOMES  (Appellant) 
METROFORM PTY LIMITED  (Respondent) 

JUDGMENT OF:       Beazley JA Santow JA Campbell AJA   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          DC 11726/01

LOWER COURT JUDICIAL OFFICER:     Garling DCJ

COUNSEL:
M I BOZIC, SC/ R L INGRAM  (Appellant) 
D A PRIESTLEY  (Respondent) 

SOLICITORS:
Taylor & Scott  (Appellant) 
Hunt & Hunt  (Respondent) 

CATCHWORDS:
TORT - negligence of employer in failing to have a proper or adequate system of work for workplace injury to back suffered in handling and moving heavy frames when they became misaligned - circumstances included unwillingness to provide additional assistance and urgency of work - no known susceptibility to back injury - employer liable to employee. 

LEGISLATION CITED:

DECISION:
(1)  That this appeal be allowed and the judgment below set aside. 
(2)  In lieu thereof, verdict and judgment for the appellant. 
(3)  The parties to bring in Short Minutes of Order as to the amount of damages, in accordance with the trial judge's assessment of damages together with interest in accordance with the District Court Rules. 
(4)  The respondent to pay the appellant's costs of the appeal and at first instance. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41018/03
DC 11726/01

BEAZLEY JA
SANTOW JA
CAMPBELL AJA

18 MAY 2005

Agostino GOMES v METROFORM PTY LIMITED

Judgment

  1. BEAZLEY JA:  I agree with Santow JA. 

  2. SANTOW JA: 

    INTRODUCTION 

    The appellant, Agostino Gomes, unsuccessfully sued his employer Metroform Pty Limited, the respondent, for damages for workplace injury.  They were suffered when the appellant was moving misaligned metal formwork frames in course of them being lifted by crane, for the purpose of taking them offsite.  The central question in this appeal is whether, contrary to the finding of the trial judge Garling DCJ, the respondent employer was negligent in failing to have a proper or adequate system for the handling and movement of these frames and, or alternatively, whether there was a duty to warn, in the circumstances, or provide training. 

  3. The trial judge concluded that there was no liability in negligence, notwithstanding the absence of any system for handling and movement of frames.  This was essentially on the basis that the trial judge was not satisfied that the defendant would have foreseen that the straightening of the bundles of frames would have been so dangerous that it would require the provision of a steel frame to put them in to move them, and that there was no evidence of knowledge on the part of the employer of any problem from frames having to be put back into place when they became misaligned in the course of lifting. 

  4. The appellant’s case was that not only was there lacking any proper or adequate system for handling and movement of frames or any warning or training in relation to manoeuvring them manually, but that, having…

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AGLC
Gomes v Metroform Pty Limited [2005] NSWCA 171
Case
[2005] NSWCA 171
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Mr Agostino Gomes against a judgment of the District Court of New South Wales, which had found his employer, Metroform Pty Limited, not liable for injuries Mr Gomes sustained in the course of his employment. Mr Gomes, a formwork carpenter with 18 years of experience, suffered a back injury when he attempted to realign a misaligned stack of heavy metal formwork frames that had become dislodged during a crane lift. The frames, each weighing approximately 25-30kg, were stacked in bundles of twenty and lifted through a floor penetration. The injury occurred when Mr Gomes, after the bundle was deposited, pulled on a frame to realign the stack and felt a sharp pain in his back.

The legal issues before the appellate court were whether the trial judge erred in finding that Metroform Pty Limited was not negligent and whether there was a duty to warn Mr Gomes about the potential risks of straightening the frames. Specifically, the court had to consider the adequacy of the employer's system of work, the provision of assistance, and the necessity of training or warnings in relation to the task. The trial judge had found that Mr Gomes was an experienced worker who understood the nature of the task and that there was no specific system in place for straightening frames, nor was there evidence of training.

The appellate court allowed the appeal, setting aside the original judgment. The court reasoned that the trial judge had given insufficient weight to the finding that there was no system in place for the straightening of frames and no evidence of any training for this specific task. Despite Mr Gomes' experience, the circumstances, including the urgency of the work and his unsuccessful request for assistance, indicated a failure by the employer to implement a safe system of work. The court found that the employer was negligent in failing to have a proper or adequate system for handling and moving the heavy frames, particularly when they became misaligned, and that this negligence caused Mr Gomes' injury.

In lieu of the original judgment, the appellate court entered a verdict and judgment for Mr Gomes. The parties were directed to bring in Short Minutes of Order regarding the amount of damages, to be assessed in accordance with the trial judge's previous assessment, along with interest. Metroform Pty Limited was ordered to pay Mr Gomes' costs of the appeal and the costs at first instance.

Orders

Orders of the court

(1) That this appeal be allowed and the judgment below set aside.

(2) In lieu thereof, verdict and judgment for the appellant.

(3) The parties to bring in Short Minutes of Order as to the amount of damages, in accordance with the trial judge's assessment of damages together with interest in accordance with the District Court Rules.

(4) The respondent to pay the appellant's costs of the appeal and at first instance.

Background

Background to the litigation

Garling DCJ, helpfully, made a further alternative finding as to the appropriate award of damages should an appeal be upheld. The total of the amounts he referred to separately in his judgment is $148,029.50. The Notice of Appeal sought the entry of judgment and verdict for the plaintiff without any reference to quantum. However, in the written submissions the appellant sought judgment “in accordance with his Honour’s assessment of damages.” The respondent did not oppose that result should the appeal succeed. SALIENT FACTS What follows is an uncontroversial summation of the relevant events and background. It requires to be read with the specific and more detailed findings of fact by the trial judge which follow. The appellant was 46 years old at the time of the accident. He had worked in this country for 18 to 19 years, for the same employer. He was a formwork carpenter. On 14 September 2000, Mr Agostino Gomes sustained injury in the course of his employment with the respondent, Metroform Pty Ltd (“Metroform’”, then known as Fyna Formwork. He started work at around 7am. Early on he unsuccessfully sought assistance, in circumstances elaborated under the heading “key findings of fact”. The injury at about 10.30am occurred while he was assisting with the removal of bundles of metal formwork frames, which were being readied for transportation from the site. They had been stacked ready for lifting by crane. The system for removing the formwork frames was as follows:(a)The frames were being stripped from the site after the decking or floor had been poured. Each frames was about 2 x 1.2 metres in dimension (T, 4O-Q), and each weighed about 25-30kg (T, 15I); (b)The frames were bundled into neat stacks of twenty frames (one on top of the other) on the lower-ground floor (T, 6S-T, 7M), that being the maximum load a crane could bear (T, 7C-D); (c)Each stack was about 1½ metres high (T, 8W); (d)A dogman would affix chains around the stack, and each bundle was then raised by crane through a penetration in the floor to the ground-level, where another dogman would remove the chains (T, 6S-X, 7H-I); (e)Mr Gomes was to add another 5 frames to the top of the stack and then affix a thin aluminium band around the bundle of twenty-five (using a machine) (T, 7L-T); (f)The dogman on the ground level would then affix chains so that another crane could take the bundle away to load it onto a truck for removal from the site (T, 7W-X). The injury occurred in the following way. As the crane on the lower-ground level was raising the load through the floor penetration, the load struck the concrete, causing some rows of frames in the stack (being some 5 to 6 frames) to twist out of alignment (T, 8D-H). After the crane had deposited the skewed bundle, Mr Gomes tried to realign the stack, by grasping the lowest misaligned frame (which was 5 to 6 from the top) in order to pull it and those on top of it back into alignment. It was not possible to move them individually (T, 8I-R). As he pulled, Mr Gomes felt a sharp pain in the middle of his back, radiating to his neck and right arm, and then numbness in his lower body (T, 9D-O). He reported the incident to his supervisor, Mr Aracic, and was sent to the doctor.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Although Mr Gomes continues to work as a formwork carpenter, he continues to have pain to his neck, arm, leg and back if he performs heavy work (T, 12G-L). First Instance Judgment In the course of his judgment the trial judge made the following specific findings of fact, and of law; where necessary I interpolate some comment. Key findings of fact Mr Gomes was a very experienced formwork carpenter (Red, 11N), and had carried out heavy lifting, putting formwork in place and in bundles over a period of 18 years (Red, 13U-W). He had not had any formal training in the lifting or moving of frames (Red, 12X). Mr Gomes was assisting as follows with the removal from site of bundles of formwork frames. Frames were stacked in bundles of 20 on the floor below where Mr Gomes was working, and were lifted by crane through an opening in the floor, where they were then unloaded (Red, 11T-12F). The bundle of frames was very heavy requiring a crane to move it and each frame weighed about 25kg (Red, 11U-V, 15O-P). I interpolate here that the expert Mr Tozer, in his report stated that “[T]ypically, these prefabricated steel tube frames have a weight of about 35 kg each” (Blue, 23). Mr Gomes in examination in chief said that the approximate weight of each frame was “25 to 30 kilos, it depends” (Black, T, 5.18). It was Mr Gomes’ job to ensure that frames were neatly stacked for transportation, which involved pushing and pulling them into position if they were out of position (Red, 15P-R). Mr Gomes had straightened formwork like this before. He said he had no difficulty in pushing or pulling the frames into position, admitting they were often easy to move and it was rare for something like this to have happened (Red, 13K-O). Mr Gomes felt sharp pain to his lower back, right buttock and numbness in his lower body when he was pulling at a frame 5 or 6 from the top [in order to straighten] (Red, 12S-W). On the day of the accident there were a number of employees of the respondent on-site, but none were working with Mr Gomes (Red, 12I-K). There were two dogmen working with the crane, one on the floor below and one on Mr Gomes’ floor, supervising the lift and carrying out the lifting (Red, 12C-F). Mr Gomes asked for assistance. This was not for the purpose of straightening the pile, but because of the speed at which the job had to be done: (Red, 13H-J). Although there was dispute as to whether he asked for assistance, Mr Gomes’ evidence was accepted by the trial judge, who described him as a straightforward witness (Red, 13Q-S). There was no system in place for the straightening of the frames, and no evidence of any system of training (Red, 15Y-16C). I would point out that this was an important finding, given, as I explain, insufficient weight by the trial judge. Key findings of Law The defendant was not negligent (Red, 18O). There was no duty to warn the plaintiff of what might happen if he pulled or pushed the frames; that is, that he should seek assistance if the frames did not move easily into place (Red, 16G-H). Mr Gomes was a very experienced employee and very experienced in heavy work (Red, 16K). He constantly did this type of work with other employees, and knew exactly what was involved and did not need warning (Red, 17Y-18D). It is not apparent how training, either when he first started on the job or at any subsequent time could have been given or would have been necessary in the task he was carrying out. Nonetheless, the trial judge did acknowledge that “[P]erhaps he would not have pulled the frame without help”. However, Mr Gomes had had little problem in the past and would usually do this job by himself (Red, 16C-D, L-N).

Ratio Decidendi

Legal Principle Established

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