Housden v Boral Australian Gypsum Limited; Victorian WorkCover Authority v Boral Australian Gypsum Limited
[2014] VCC 850
•16 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-00210
| PAUL RAYMOND HOUSDEN | Plaintiff |
| v | |
| BORAL AUSTRALIAN GYPSUM LIMITED (ACN 004 231 976) | First Defendant |
| and | |
| BORAL PLASTER FIXING PTY LIMITED (ACN 004 111 479) | Second Defendant |
| VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627) | Third Party |
-AND-
Case No. CI-09-04681
| VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627) | Plaintiff |
| v | |
| BORAL AUSTRALIAN GYPSUM LIMITED (ACN 004 231 976) | First Defendant |
| and | |
| BORAL PLASTER FIXING PTY LIMITED (ACN 004 111 479) | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 6, 7, 8, 9, 12, 13, 14, 15, 16, 19, 20, 21, 22, 26, 27 and 28 April and 9 May 2014 | |
DATE OF JUDGMENT: | 16 June 2014 | |
CASE MAY BE CITED AS: | Housden v Boral Australian Gypsum Limited & Ors; Victorian WorkCover Authority v Boral Australian Gypsum Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 850 | |
REASONS FOR JUDGMENT
---
Subject: NEGLIGENCE
Catchwords: Plaintiff injured as a consequence of following a work process - alternative work process available obviating the risk to which the plaintiff was exposed – whether the plaintiff was injured as a consequence of following the work process - whether the plaintiff was injured as a consequence of following the alternative work process - question of fact - question of which work process the plaintiff was following at the time he was injured – VWA recovery proceeding brought pursuant to section 138 of the Accident Compensation Act 1985 - factually the same case as the plaintiff’s
Legislation Cited: Occupational Health and Safety (Manual Handling) Regulations 1999; Corporations Act 2001(Cth), s601AG; Accident Compensation Act 1985, s138, s134AB; Evidence Act 2008, s44
Cases Cited: Browne v Dunn (1893) 6 R 67
Judgment: The plaintiff’s proceeding is dismissed, and the VWA proceeding is dismissed, with other consequential orders dealt with below
---
Case No. CI-10-00210
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr D O’Brien | Melbourne Injury Lawyers Pty Ltd |
| For the First and Second Defendants | Mr D McWilliams | Meridian Lawyers Limited |
| For the Third Party | Mr R Gorton QC with Ms J M Forbes | Thomson Geer |
Case No. CI-09-04681
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Galpin | Hall & Wilcox |
| For the First and Second Defendants | Mr D McWilliams | Meridian Lawyers Limited |
HIS HONOUR:
Preliminary Background
1 Paul Housden (“Housden”) is a second-generation plasterer. At age fifteen years he commenced an apprenticeship as a plasterer under his father. After completing his apprenticeship, he commenced a career as a fully qualified plasterer. The area of plastering in which he engaged was hanging plaster sheets.
2 In the period from 2004 to 2007 (“the relevant period”), Housden was a self-employed plasterer. He employed Brett Andrew Hayes (“Hayes”). Hayes was also a qualified plasterer. Over 2004 and into early 2005, he employed David Tunne (“Tunne”). Tunne was employed as a labourer.
3 At the commencement of the relevant period, Housden incorporated a company known as Stebec Pty Ltd (“Stebec”). The relevance of Stebec in the relationship between Housden and Boral was of critical importance to a part of the proceeding.
4 Housden maintained that he was engaged as a plasterer directly, by either Boral Australian Gypsum Limited or Boral Plaster Fixing Pty Limited. Both companies denied that they had engaged Housden. Boral Australian Gypsum Limited admitted in its Defence that it entered into sub-contract agreements with Stebec for it to provide a plastering service.
5 Despite the fact that the Housden brought his proceeding against both Boral Australian Gypsum Limited and Boral Plaster Fixing Pty Limited, I was informed that I was to assume that they were the appropriate defendants to this proceeding. In the course of the proceeding, all the parties referred to the two defendants as “Boral”, as will I.
6 Whether Boral entered into sub-contract agreements with Housden or Stebec was a matter of controversy. I will refer to the sub-contract agreements later in these reasons if necessary.
7 Housden pointed to one aspect of the work he performed as a plasterer as a cause of the injury he suffered to his lower back. The plasterboard delivered to building sites by Boral was uniformly 6 metres long, 1.2 metres wide and 10 millimetres thick. During the relevant period, it was delivered in a stack. The stack was positioned on timber bearers. The stack was about 1 metre in height. Each sheet of plasterboard weighed between 48 and 50 kilograms.
8 Housden maintained that, when plasterboard needed to be cut into particular sections, he was required to do that while the sheets of plasterboard remained flat on the stack. During the proceeding, that position was described as the plasterboard being horizontal.
9 More particularly, Housden said that it was only the first few sheets of plasterboard that he removed from the horizontal position to a vertical position in order to cut the plasterboard. He said he did that because it was difficult to cut the top sheets of plasterboard, because at 1 metre in height it was difficult for him to reach across the 1.2-metre width of the plasterboard in order to cut it. The balance of the sheets of plasterboard were cut while they were horizontal.
10 The necessity to cut plasterboard arose because the process of hanging plasterboard required different sized pieces to be cut from a sheet of plasterboard. For example, on 22 January 2007, when Housden suffered an acute episode of lower back pain, he needed to cut a 2-metre section off a sheet of plasterboard.
11 Housden said that the method he used to cut the 2-metre section off a sheet of plasterboard involved the following: He would use a “T” square to measure 2 metres off the sheet of plasterboard. He would mark off that section with a pencil. He would then lean across the sheet of plasterboard and make a cut into it with a Stanley knife. He would then place his left hand under the sheet of plasterboard to raise it about 10 millimetres into a raised position. He would then have 4 metres of plasterboard to his left and 2 metres of plasterboard to his right. The other side of the plasterboard from where he was standing would still be resting on the stack. He would then make a second cut and break off the section that he needed. The actual process of making cuts into the sheet of plasterboard was described as “scoring”.
12 Boral called the following witnesses to give evidence of the mode of delivery of plasterboard, and how they saw Housden cut the sheets of plasterboard and, in particular, whether they saw him cut the sheets of plasterboard while they were horizontal – Hayes, Tunne, Peter Raymond Matthews (“Matthews”) and Peter Brookes Dale (“Dale”).
13 Dale’s evidence corroborated Housden’s evidence of how he cut sheets of plasterboard. The evidence of Hayes, Tunne and Matthews was to the contrary. Matthews said that Housden did not cut sheets of plasterboard while they were horizontal. Hayes and Tunne said that Housden cut the sheets of plasterboard while they were horizontal infrequently.
14 Essentially, the evidence of those witnesses was that a sheet of plasterboard was slid off the stack and made vertical against the stack or against a wall. In that position the cutting process was undertaken.
15 The significance of the evidence of those witnesses goes to the essence of the case put by Housden in negligence and breach of statutory duty. Housden said that, if he was permitted to cut the plasterboard vertically, then it would have obviated the necessity to bend at the back across the sheet of plasterboard to make the first cut, and then to lift the sheet of plasterboard with his left hand while making the second cut. He said that process placed unreasonable strain on his lower back.
16 Counsel addressed me on the issues which I needed to consider, depending on the findings I made on the very many issues raised in this proceeding. However, what occurred to me was that, if I found that in fact Housden cut all, or the majority of, the sheets of plasterboard while they were vertical, then such a finding would amount to a failure on his part to establish negligence and breach of statutory duty.
The parties to the proceeding
17 The preliminary background is sufficient for me to now describe who the parties are to the proceeding, and the relief claimed by them, or against them.
18 Housden commenced a proceeding by writ, alleging that, as a consequence of the negligence and breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 (“the regulations”) by Boral, he suffered injury, loss and damage.
19 Boral filed a Defence in which it admitted that it entered into sub-contract agreements with Stebec to provide plastering services. Boral alleged that Housden was employed by Stebec and not by Boral and, as a result, Boral only owed a duty of care at general law and not the duty of care relevant to an employer and employee. Boral alleged that latter duty was owed by Stebec to Housden. Boral alleged that it had discharged its duty of care to Housden. Boral alleged that if it was in breach of the duty of care at general law, that Housden was guilty of contributory negligence.
20 Stebec was deregistered on 29 November 2008. As a result of that deregistration, Boral joined the Victorian WorkCover Authority (“VWA”) as a third party (“the third party”). The basis of the joinder of the third party is s601AG of the Corporations Act 2001 (Cth), which provides that Boral may recover from the insurer of a company which is deregistered an amount that was payable by the company under an insurance contract, in circumstances where the company has a liability to a person and there was a contract covering that liability in existence immediately before the company was deregistered.
21 Boral relies on two sub-contract agreements which contain clauses which provide that Stebec indemnified Boral from any liability incurred by Stebec. Therefore, if Housden was an employee of Stebec, and it is found to be negligent and in breach of the regulations, then, because it is deregistered, s601AG potentially makes the third party liable if the indemnity clause applies.
22 The VWA brought a proceeding pursuant to s138 of the Accident Compensation Act 1985 (“the ACA”). It is sufficient background in that proceeding to note that Housden made a claim against Stebec, submitting that Stebec was his employer for the purposes of payment of ‘no fault’ benefits under the ACA. The claim was admitted. He has been paid significant amounts of ‘no fault’ compensation.
The primary issue
23 The primary issue which I must firstly decide is whether Housden undertook the cutting of sheets of plasterboard in the way he described in his evidence or not. A finding in his favour will then require me to determine a number of other issues. A finding unfavourable to him will not require me to consider any other issues raised in the two proceedings.
The evidence – the primary question
24 It is firstly necessary to examine the way in which the plaintiff’s case was pleaded because of a criticism made by Mr McWilliams that the case pleaded was different from the case as opened. He ultimately submitted that the contrast between the pleadings and the opening was a matter going to the creditworthiness of the plaintiff. Put more sharply, he submitted that the plaintiff had more recently invented the case put at trial.
25 It should be remembered that Housden alleged that he was directly engaged as a sub-contractor by Boral. He denied that Boral engaged Stebec as a sub-contractor, and that he was employed by Stebec. Paragraph 5 of the Amended Statement of Claim pleads the conduct on the part of Boral which resulted in the plaintiff suffering injury caused by its negligence and breach of the regulations:
“The Plaintiff sustained injury when sub-contracted to perform work for the Firstnamed Defendant and/or Secondnamed Defendant using products of the Firstnamed Defendant and/or Secondnamed Defendant in the Period on and from 8 October 2004 when he was required to undertake repeated heavy manual work and more particularly on 22 January 2007 whilst working on a site at Narre Warren when he was required to manually handle and manoeuvre sheets of plasterboard, as a result of which activities, undue strain was placed on his spine (which injuries are hereinafter referred to as ‘the injuries’).[1]
[1]Leave was granted to the plaintiff to file and serve an amended statement of claim to reflect the relevant period of the claim from 2004 to 2007.
26 The pleading is very broad. The particulars of negligence subjoined to paragraph 6 of the Statement of Claim are non-specific in that they make general allegations of a requirement to undertake unreasonable levels of manual handling. A large part of the opening concentrated on documents generated by Boral and the regulations as the background to the allegation that “the fundamentals” of Housden’s case was that he complied with a system of work designed and implemented by Boral which required him to cut and manually handle sheets of plasterboard delivered horizontally.[2]
[2] For example, Transcript 22 and 31
27 The only particulars of negligence which were consistent with the manner in which Housden’s proceeding was opened were (j) and (k). Particular (j) alleged that there was a failure on the part of Boral to ensure that the sheets of plasterboard were stacked vertically so that they could be more easily manually handled by the plaintiff, and particular (k) alleged that the stacking of the sheets of plasterboard horizontally required the plaintiff to lift the sheets of plasterboard while bending.
28 No objection was taken by Mr McWilliams to the pleading in paragraph 5 of the Statement of Claim, or to the manner in which Housden’s claim was opened. However, reference was made to the pleading and the opening later when Boral called evidence from Hayes, Tunne, Matthews and Dale. By that stage, Housden had given very particular evidence of the manner in which he cut sheets of plasterboard. His evidence was significantly different from the pleading, but not necessarily inconsistent with the pleading, although it went close to being inconsistent.
Housden’s evidence
29 What Housden firstly said about the manner of delivery of the plasterboard and the way he cut sheets of plasterboard was as follows:
Q:“Just in relation to the method of scoring and cutting plasterboard that was on a horizontal plane, I have explained to His Honour how that was done. Can you just explain in your own words how that was done if you were cutting on a horizontal plane?---
A:Yes. All the sheets are all stacked in one stack and we measure up what we need to measure up in the house.
Q:So you might need a two-metre section from a six-metre sheet, for example?---
A:Yes, if it’s a two-metre piece of sheet, I will measure two metres and I have a T-square which I reach across to put onto the sheets. I have a Stanley knife which I score the front of the sheet.
Q:So the T-square gets the line in the exact right position?---
A:It gives a straight line. Then I proceed by putting my hand underneath on the left-hand side, because I’m a right hand with the knife. The second cut I cut through and the sheet has come apart.
Q:Let’s just go over that slowly. You score it at the two-metre point? ---
A:Yes.
Q:Which means you have got two metres on the left, four metres on the right of the sheet?---
A:I’m right handed. Yes, but when you put the score in at the two-metre point, there is two metres on this point and there’s four metres on the other side of the sheet?---
A:That’s right.
Q:Where do you put your left hand at that point?---
A:Under the four-metre part of the sheet.
Q:What do you do with your left hand at that point in time?---
A:Lift that sheet up off the other sheet.
Q:How high do you have to lift it?---
A:At about 10 mil or 10 whatever it is.
Q:At that time the sheet is still the entire sheet still in a single sheet?----
A:Yes.
Q:That’s the 48 to 50 kilograms that I mentioned previously?---
A:Yes.
Q:That’s with your left hand because your right hand does the second cut?---
A:Yes.
Q:At any time whilst you were working for Boral did anyone come and assess the forces that were involved in your performing that particular action? So lifting with your left hand the entire weight of the sheet before you cut with the second cut using your right hand. Was that assessed by anyone?---
A:No, not ever.
Q:To the best of your knowledge when performing that task did anyone come to examine the posture in which you were working? ---
A:No.
Q:What was the precise posture in which you were working as you performed that manoeuvre?---
A:You were always bent over and when the sheets got lower and lower you were on your hands and knees.
Q:The sheets could be stacked to a height of how many sheets?---
A:It depends on how big the job is.
Q:Just clarify this for me. I said the full weight of the sheet?---
A:Yes.
Q:Is the sheet a flat sheet still at that point in time?---
A:Yes.
Q:Before you put the second cut?---
A:Yes.
Q:So it is the full six metres of the sheet that is being lifted using your left hand, preparatory to the second cut. Have I understood that correctly?---
A:Yes.”[3]
[3] Transcript 52-54
30 Later, Housden gave the following additional description:
Q:“Can you tell His Honour what you did to prepare those boards for use at that residential development?---
A:I do the same as every other job, we measure the ceilings up first and we cut them off the stack and we hang them first.
Q:Yes?---
A:And we measure the walls up and we do the same thing; measure them off the stack, cut them off the stack, and then hang the walls.
Q:So take a step back; the measuring on the stack is the first score?---
A:No, measuring with a tape.
Q:The tape, and then scoring along the line?---
A:Along the - with a T-square.
Q:T-square that determines the line - - -?---
A:Yes.
Q:For the cut?---
A:Yes.
Q:That’s the first score?---
A:Yes.
Q:Is it the situation that the left hand goes under the larger part of the sheets in that situation?---
A:Yes.
Q:And then you lift the whole sheet up?---
A:Yes.
Q:And then the second score, using the right hand?---
A:Yes.
Q:That was the procedure that was followed on that site?---
A:Yes.
Q:Can you tell His Honour what happened on that date whilst you were working on that site?---
A:We were down to the last couple of sheets and they were on the floor and I had measured a sheet around two metres long. I was on my left knee reaching across with the T square to score the front of the sheet. I did that and lifted the rest of the sheet up with my left hand, followed through with the second cut and in doing that, I felt three cracks in my back.”[4]
[4] Transcript 60-61 and Transcript 711-729
31 The evidence of Hayes, Tunne and Matthews was in stark contrast to the evidence of Housden regarding the manner in which the plasterboard was delivered and their observations of the manner in which Housden went about cutting sheets of plasterboard. Their evidence was not put to Housden.
32 The proceeding commenced at 10:30am on Monday, 5 May 2014. A number of witnesses were interposed during Housden’s evidence, which had the effect that by Monday, 12 May 2014, Housden had not completed his re-examination. On 12 May 2014, I was informed that Housden had suffered a very serious psychiatric collapse. Dr Heffernan, psychiatrist, is Housden’s treating psychiatrist. He was one of the witnesses who was interposed on 6 May 2014. He was re-called on 13 May 2014. It was on the latter occasion that he gave evidence consistent with his report dated 13 May 2014.[5] Essentially, he said that the plaintiff had suffered a serious deterioration in his state of mental health, consisting of a florid exacerbation of a major depressive illness. He said that the plaintiff was suicidal, and required urgent admission to a hospital, which he said was being organised.
[5] Exhibit Y
33 Mr McWilliams informed me that when he understood the way in which Housden was actually putting his case, as opposed to the way it was pleaded, investigations were put into effect which put him in possession of instructions on 12 May 2014 from Hayes and Matthews. It was as a result of those instructions that he informed me that he wished to have the plaintiff recalled to put his instructions to the plaintiff, and he intended to call Hayes and Matthews.
34 After hearing submissions from Mr Ingram, who objected to Hayes and Matthews being called, and hearing submissions from Mr McWilliams, I ruled that Mr McWilliams could call Hayes and Matthews. I left it open to Mr Ingram to apply to adduce further evidence from Housden if that was possible, and to call evidence in reply. No application was made to do either.
35 The only challenge, if it could be called that, to Housden’s evidence of the manner of delivery of the plasterboard and to how he cut it was oblique, to say the least. The plaintiff swore an affidavit in support of an application pursuant to s134AB of the ACA. The affidavit was sworn on 6 October 2008. In paragraph 14 of that affidavit, he said:
“I was working at a site in Narre Warren on 22nd January, 2007. Plaster sheets had been delivered to this site by Boral Interior Linings Pty Ltd using a driver and jockey and brought into the house and piled in the biggest room. The plasterboards would then be prepared for use on the walls and ceilings. The sheets were 6 m in length and would be slid off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings. On this particular occasion I went to grab the sheet which was at the top of the pile, although the pile had by that stage shrunk somewhat and the sheet was close to the ground. I believe that this particular sheet which I was lifting was approximately 2 m in length by 1200 mm in width. As I lifted the sheet I felt something go in my back.”[6]
[6]Exhibit D14. Housden swore a second affidavit in which paragraph 14 was repeated: exhibit D15. Housden swore a second affidavit on 10 March 2009, repeating paragraph 14 in that affidavit: exhibit D15.
36 Housden was cross-examined about the content of paragraph 14 and that what he swore to was that he removed a sheet of plasterboard from the top of the stack and made it vertical for the purpose of cutting it:
Q:“What I’m suggesting to you is in October 2008 your memory of the events of the date of your injury on 22 January 2007 – your memory then is better than it is now?---
A:100 per cent.
Q:So you would agree with that, wouldn’t you?---
A:Yes, I would.
Q:Because when you made this affidavit it was about 18 months or thereabouts after you had injured yourself. Is that correct?---
A:This?
Q:Yes. October 2008?---
A:Yes, whatever - - -
Q:You were hurt in January two thousand and - - ?---
A:Seven.
Q:So it’s a bit more, it’s around - - - ?---
A:Yes. The reason I know that is because it’s one date that just never goes away, when I got injured.
Q:The way - you were very particular, weren’t you, Mr Housden, in how you described the way in which you hurt your back in this affidavit?---
A:Yes.
Q:You wanted to make sure you got it right?---
A:I just told it how it was.
Q:Right. If I could get you to go to paragraph 14. Can you turn that portion up, please, Mr Housden. In paragraph 14 you state there, don’t you, ‘I was working at a site in Narre Warren on 22 January 2007’?---
A:Yes.
Q:‘Plaster sheets had been delivered to this site by Boral Interior Linings Pty Ltd using a driver and jockey and brought into the house and piled in the biggest room. The plasterboards would then be prepared for use on the walls and ceilings. The sheets were six metres in length and would be slid off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings. That's what you say there, isn’t it?---
A:That’s what it says there.
Q:What that suggests, isn’t it, Mr Housden, is that the practice that you adopted in cutting these sheets is, firstly, that the boards were slid off the pile. Would you agree with that?---
A:I cut the sheets on the pile.
Q:That’s not what you say there, is it, Mr Housden?---
A:It’s not what it says there, no.
Q:No, but you were quite particular when you made this affidavit to get the story straight, weren’t you?---
A:I was telling it how it was.
Q:And you agree with me, don’t you, that your memory, when you made this affidavit, was better than it is when you’re standing in the witness box now?---
A:My memory then, no, because the only two dates that I know out of all this injury are the dates of when I done it and the date when I stopped work.
Q:Mr Housden, do you seriously suggest to his Honour that your memory in 2008, in October 2008, was not better than it is now?---
A:It would have been better then.
Q:Right?---
A:Yes.
Q:So you agree, don’t you, that your memory of these events on 22 January 2007 were better in October 2008 than they are today?---
A:Yes.
Q:What you say in that affidavit, Mr Housden, is that the plasterboard sheets would be prepared for use on the walls and ceilings. The sheets were six metres in length and would be slid off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings. What that suggested, Mr Housden, is that the practice that you adopted was to slide the plasterboards off the horizontal sheet and then cut them. That's what that suggests there, isn’t it?---
A:The sheets might have been high, that I had to take the top ones off.
Q:Right, but that’s not what you say there. You don’t say that you only did it for the top sheets, do you?---
A:I didn’t say I did it for the whole sheets either, all the sheets.
Q:What you do, you say generally that the sheets were six metres in length and would be slid off the top of the pile as required to be cut in order to the necessary size for affixing to walls and ceilings. What that suggests is that your practice was you take the plasterboard sheets off the horizontal plane and then you cut them. That’s the practice you adopted, wasn’t it?---
A:For the higher sheets which you couldn’t reach.”[7]
[7]Transcript 219-222
37 It is evident from the portion of the cross-examination which I have quoted that Housden did not accept that paragraph 14 of the affidavit was accurate. He limited the extent to which there was any sliding and lifting to place the sheet of plasterboard in a different position from being on the stack only, to sheets of plasterboard which were higher on the stack.
38 Two other attacks were made on Housden’s creditworthiness. The first was by reference to a WorkCover Worker’s Claim Form,[8] and a WorkCover Employer’s Claim Report. The Claim Form was completed by Housden on 1 June 2007. It is a claim for compensation pursuant to the ACA lodged on Stebec. In answer to Question 18, Housden wrote that he was injured “lifting plaster sheets”. In answer to Question 20, he wrote that what caused or contributed to his injury was that he “bent over to lift plaster sheets pain in lower back immediately …”. Although he did not complete the Employer’s Claim Report, the report described a similar mechanism of injury in answer to Question 11 - “lifting plaster sheets ...”. The Employer’s Claim Report was completed by Joanne Housden, who is the wife of Housden.
[8] Exhibit D18
39 The attack made on Housden’s creditworthiness through the claim for compensation and the Employer’s Claim Report is unconvincing. What is abundantly clear is that the form serves a particular purpose, and was not intended to be a pleading of any precision of the mechanism of injury. What is written on both is otherwise accurate. Part of Housden’s case is that he was engaged, among other tasks, in lifting sheets of plasterboard in between the first score and the second score of the sheets of plasterboard.
40 The next attack made on his credit was made through the history recorded by Ms Kikas, physiotherapist (“Kikas”). Kikas was engaged by Housden’s solicitors to confer with him and to provide an opinion on the risk to which Housden was exposed in undertaking plastering work. Housden was taken to paragraph 5.26 of Kikas’ report dated 6 August 2013.[9] In that report, she recorded the following at paragraph 5.26:
“Mr Housden described that the flat-stacks plasterboard sheets compared to the edge stacks (resting on their long edge) of sheets resulted in the introduction of four additional steps which made the job more strenuous and time-consuming:
1.Pulling and sliding the top plasterboard horizontally across the stack (only when the stack height was between 1400 mm and 1000 mm);
2.Lowering the top sheet of plasterboard to the floor to rest it on its long edge against the stack in order to be able to cut it … .”
[9] Exhibit A2
41 I am not persuaded that the history is necessarily inconsistent with Housden’s evidence that he cut the sheets of plasterboard while horizontal except for the few top sheets. It appears to me that that is what he informed Kikas was his practice, and indeed, that appears to be what she recorded of that practice in the following paragraph numbered 5.27.
The Evidence of Hayes, Tunne and Matthews, and compliance with the rule in Browne v Dunn[10]
[10](1893) 6 R 67
42 The foregoing was the upshot of the challenge which was made on Housden’s account of how he cut the sheets of plasterboard. As I have already observed, the evidence of Hayes, Tunne and Matthews was not put to the plaintiff because the plaintiff did not return to court.
43 Mr McWilliams submitted, in reply to the submission made by Mr Ingram, that I should not permit Mr McWilliams to call Hayes and Matthews,[11] that the reference to paragraph 14 of the affidavit and the cross-examination based upon it was a discharge of his obligation under Browne v Dunn.[12] A comparison between the evidence of Hayes, Tunne and Matthews with that of Housden makes it very plain that the submission has no substance. The thrust of much of the evidence of Hayes, Tunne and Matthews was that Housden invariably cut sheets of plaster when they were vertical and not when they were horizontal.
[11]At the time when the submission was made it would appear that the defendant had not contemplated calling Tunne
[12] Supra
Dale’s evidence
44 Dale is now retired. Before he retired he was employed by Boral. He commenced an apprenticeship at sixteen years of age in plastering. He pursued the occupation of plasterer after completing his apprenticeship. He worked as a plasterer doing both hanging and stopping until he was about forty-three or forty-four years of age. He suffered a back injury, which resulted in him being approached by his then employer, Derite, to take up a supervisory job. He was subsequently occupied as a supervisor for about twenty years before he retired in 2008.[13] Derite was taken over by Boral. It would appear that after the takeover, Dale continued his work as a supervisor with Boral.
[13] Transcript 557-558
45 During the relevant period, Dale supervised two gangs of plaster hangers. One of those gangs comprised of Housden and Hayes. There were a number of preparatory steps he took before the commencement of any particular plastering job. Much of that evidence is not so relevant to the question of the manner of delivery of the plasterboard and whether Housden cut it when it was horizontal or vertical. He would check the site, for example, to ensure that it was clean, that there was a toilet on site, and that the job was ready to commence. He would then place a sticker at the site which represented that the site was ready for the plasterers to commence work. He would subsequently contact the plasterers when the job was ready, and that contact would usually be made the day after the plasterboard had been delivered to the site.[14]
[14] Transcript 564-566
46 Dale said that, during the relevant period, Boral delivered plasterboard to sites horizontally. He was aware that there had been a fatality which was caused by plasterboard which had been delivered vertically to a site.[15]
[15] Transcript 566 and 598
47 During evidence-in-chief, Dale was asked whether Housden had ever made any comment regarding the delivery of plasterboard horizontally:
Q:“Mr Dale, did Mr Housden ever make a comment to you about boards being stacked horizontally?---
A:No. Could I - he might have but that was a Boral direction, so I can’t do anything about, can I?
Q:Can you recall what the comment was?---
A:No.”[16]
[16]Transcript 597
48 That evidence was to become something of critical importance to Housden’s case. Dale, under cross-examination, confirmed that not only was plasterboard delivered horizontally, but that it was his understanding that it was a Boral direction, and furthermore, he observed Housden cutting sheets of plasterboard horizontally.
49 Under cross-examination, Dale repeated that the manner of delivery of plasterboard was a Boral direction:
Q:“You have just given evidence about five minutes ago about the horizontal stacking of boards, that that was a Boral direction?---
A:Correct.
Q:And that you couldn’t do anything about it?---
A:No, because I worked for Boral.
Q:Can I suggest to you that you said that Mr Housden might have complained about the change in the system, but can I suggest to you that he actually did make a complaint to you about the change in the system from the vertical delivery to the horizontal delivery? ---
A:I can’t recall.
Q:If he says that he did make such a complaint to you, you’re not in a position to dispute that he made that complaint?---
A:No.
Q:Similarly he says that your response was, ‘I’m only the messenger, don’t shoot me,’ which would be pretty consistent with, ‘It’s a Boral direction, it’s nothing to do with me’?---
A: That’s right.”[17]
[17] Transcript 598-599
50 Later, and still under cross-examination, Dale said:
Q:“Mr Dale, when I first started questioning you at the outset, I was asking you about the horizontal stacking of boards and you gave the answer that it was a Boral direction and you couldn’t do anything about it. Do you recall that evidence?---
A:Yes.
Q:You said that Mr Housden may well have complained to you about that, but you couldn’t recall and you weren’t in a position to dispute that he may have complained about it. Do you recall giving that evidence?---
A:Yes.
Q:Can I suggest to you that the reason that Mr Housden was complaining to you was that he was of the belief that if the boards were delivered in a horizontal stack, it was necessary for him to cut off the stack? Does that make any sense to you?---
A:Yes, it does.
Q:Is that a situation of which you were aware? That plasterers who were delivered with vertical stacks were cutting off the stack?---
A:Horizontal.
Q:Sorry, thank you. When they were delivered horizontally plasterers were cutting off the stack?---
A:They were.
Q:That was something that you knew about?---
A:Yes, I did.
Q:That was something that you had seen the plasterers doing, which was why you knew about it?---
A:That’s right.”[18]
[18] Transcript 607-608
51 Housden’s evidence was then put to him regarding the steps he took when cutting sheets of plasterboard when they were horizontal:
Q:“In the cutting of the horizontal boards of the stack, it meant that there was first of all a stretching across the stack to put in the first score?---
A:That’s right.
Q:It meant that the hand that wasn’t holding the scoring device would be put under the plasterboard to lift it up for the purposes of the second score?---
A:That’s right.
Q:Then the second score would be used to break the plaster sheet? ---
A:That’s right, the second cut.
Q:Yes, the second cut would break the sheet. So if you were cutting two metres off a six-metre sheet, that’s the way you would do it, the way I have just described to you?---
A:That’s right. As long as the second cut is a very strong one.
Q:Of course in doing it that way, not only did you have the leaning across the sheet, but you also had the significant weight of lifting with the one hand virtually the entire weight of the sheet in order to get that second strong cut through the sheet?---
A:Correct.”[19]
[19] Transcript 608-609
52 Dale denied that he instructed Housden to cut the plasterboard in the manner described to him under cross-examination. Essentially, he said that as far as he was concerned, Housden was a professional plaster hanger, and he did not see any reason why he needed to tell him how to do his job.[20]
[20] Transcript 610
53 Dale’s evidence has to be seen in the context of how often he saw Housden working on sites. It would appear that apart from the initial visit to the site which he undertook, he attended a second time for about quarter of an hour. The purpose of the second attendance at the site was to see if all was in place for the work to progress:
Q:“Then as far as your involvement on site, firstly, how much time - if you think of one particular job between October 2004 to mid-2007, if Mr Housden is doing plastering on site could you tell His Honour please firstly for this one particular job how many times you may or how many times you would turn up on site?---
A:Only once.
Q:That’s once while he’s doing the work. Is that correct?---
A:Correct.
Q:And how long would you stay for?---
A:Quarter of an hour, something like that.
Q:What would you do during that quarter of an hour?---
A:Well, usually when I turn up or anybody else turns up they would just stop work and have a little chat.
Q:When you go there, what are you looking for?---
A:That everything is in place.
Q:Why do you need to know whether everything is in place?---
A:Well, we get back to if there’s an untidy site - which it shouldn’t be because I’ve directed the work there - I can’t answer that.”[21]
[21] Transcript 568-569
54 Dale’s first attendance at the site was to undertake an inspection of the site to determine whether the site was in a fit state for the plasterboard to be delivered so that the plasterers could commence their work. So, it could only have been on the second occasion when he attended the site to have “a little chat” and to see “that everything is in place” that he would have seen Housden and his gang undertaking plastering, including cutting sheets of plasterboard.
55 Neither the examination-in-chief nor the cross-examination descended into any detail of the occasions when Dale actually saw Housden cutting the plasterboard in the manner described by Housden, and in the manner which Dale said he observed it being undertaken. The only conclusion open is that he observed Housden cutting sheets of plasterboard when he attended the site on the second occasion.
Hayes’ evidence
56 Hayes commenced an apprenticeship as a plasterer when he was twenty years of age. He has been a plasterer for twenty years. He presently pursues that occupation with a firm known as GSR Plaster. He commenced his apprenticeship with Housden in about 1994.
57 Hayes said that plasterboard was delivered vertically before 2004. That changed when Housden took up sub-contract work with Boral.[22] In relation to how sheets of plasterboard were cut, he said:
Q:“At this time when the transition was taking place, when you attended a site that had plasterboard which had been delivered horizontally can you tell His Honour please how it was you and Mr Housden went about cutting those sheets which had been delivered horizontally?---
A:We would pull them off the stack one at a time and then cut it as if we were cutting them when they were standing up - just the same process of measuring with the T-square, scribing it and cutting it back and snapping it with a little flick of the foot and that’s the process.”[23]
[22] Transcript 1078 and 1081-1082
[23] Transcript 1082
58 And he repeated that evidence later:
Q.“You’ve described that process. Firstly, in relation to that process, why was it you did it that way?---
A.That’s the way we always learnt how to do it. We preferred it - well, I don't know if it was even preferred but that’s just the way we did it. So we always liked cutting sheets whilst they were standing up. It was probably like it was more beneficial for you. That’s just the way we used to cut sheets.
Q.Who made the decision to do it that way?---
A.If it was a decision, I would say it was Paul because I worked under Paul. So I wouldn’t make a decision for someone I worked for.”[24]
[24] Transcript 1082-1083
59 Hayes said that the cutting of sheets of plasterboard during the relevant period was undertaken by Housden and himself equally.[25]
[25] Transcript 1092
60 Hayes was cross-examined at length regarding the truth of what he said was the way Housden cut sheets of plasterboard.
61 The first attack made on his creditworthiness was the use of the expression “cutting on the stack”. The cross-examination sought to create a distinction between cutting on the stack which was said to be consistent with cutting sheets of plasterboard while horizontal, as opposed to “cutting off the stack” which was said to be consistent with cutting sheets of plasterboard which were removed from the horizontal stack to a vertical position to be cut.
62 Under cross-examination the following was put to Hayes:
Q:“I want to suggest to you that that that’s before do that, the expression ‘cutting on the stack’, is that an expression known to you?---
A:Yes.
Q:Cutting on the stack means cutting of plasterboard whilst they’re still located on the stack, doesn’t it?---
A:Yes.
Q:Yes. You know that?---
A:Yes.
Q:Yes. You, I suggest when working with Mr Housden, frequently cut plasterboard on the stack?---
A:No.
Q:Are you quite sure about that?---
A:Yes.
Q:Are you positive about that?---
A:Yes.”[26]
[26] Transcript 1106
63 I should pause here to note that the cross-examination that was to follow relevant to Hayes’ creditworthiness was based upon a statement in writing made by Hayes and a previous representation of Katherine Anne Wilson (“Wilson”). The cross-examination sought to demonstrate that whenever Hayes used the expression “cutting on the stack” it meant that the cutting occurred while the plasterboard was horizontal; however, other witnesses also used the expression “off the stack” to mean the same thing. Housden used it,[27] as did Dale, who accepted Mr Ingram’s questions prefaced with the description “off the stack” to mean horizontal.[28]
[27] Transcript 61: “… we… measure them off the stack, cut them off the stack.”
[28] Transcript 608: “… it was necessary for him to cut off the stack?”
64 The use of the expressions “cutting on the stack” and “cutting off the stack” created confusion. That confusion was pointed to by Mr Ingram during his cross-examination of Hayes.[29] Hayes agreed that whichever expression was used, it meant the same thing.[30] Housden’s evidence was then put to Hayes:
[29] Transcript 1107
[30] Transcript 1107
Q:“He went on to say that this system - over at 609 - was going on from 2004 to 2007. I put to you that that is the truth of the situation that from 2004 until 2007 on regular occasions Mr Housden was cutting on the stack?---
A:No.
Q:You deny that?--
A:Yes.
Q:You deny that under oath?---
A:Yes.”[31]
[31] Transcript 1108
65 Hayes was then cross-examined on a statement he made to the VWA.[32] It was a statement which was provided to Mr Ingram by Ms Galpin. It had not previously been discovered.[33] Hayes was provided with a copy of the statement. He was given time to read it. Having done so, he was asked whether his signature appeared on the third page of the statement, and whether his initials appeared on each of the first two pages. He acknowledged that the signature and initials were his.[34]
[32] Exhibit A4
[33]The statement was provided by Ms Galpin to Mr Ingram on Friday, 16 May 2014. The cross-examination of Hayes using the statement occurred on Monday, 19 May 2014.
[34] Transcript 1109
66 Before turning to the cross-examination based upon the statement, I will set out the relevant part of the statement said to be a prior inconsistent statement, and going to Hayes’s creditworthiness:
“… It is also correct that they were stacked in piles on the floor of the house. We would cut them to size on the stack, and then carry the piece we were going to fix to the wall, apply glue and then nail it into place.”[35]
(emphasis added).
[35] Exhibit A4, paragraph 4
67 Mr Ingram directed Hayes’s attention to that portion of the statement, and put the following to him:
Q:“’Paul and I carried them one at each end and we had to be careful how we handled them to avoid damaging them.’ It is also correct that they were stacked in piles on the floor of the house?---
A:Yes.
Q:So that’s horizontal stacking system, isn’t it?---
A:Yes.
Q:‘We would cut them to size on the stack.’ Now, that’s the truth, isn’t it?---
A:Yes, but also it’s stacked - no - - -
Q:You cut them to size - - -?---
…
Q:I put to you in accordance with this statement that you made knowing any false or misleading information would be punishable by law, that you would cut the plasterboard sheets to size on the stack, and that was a true statement?---
A:No.
Q:That statement was a lie, was it? --- Because ‘stack’ also means when the sheets are standing up. We still call it the stack. I have already asked you about cutting on the stack and you agreed with me. I described it with the folder up there. I showed you what cutting on the stack was and I asked you if you understood that, and you said that you did?---
A:Yes, but you never asked me if that was a stack if they’re standing up that way, did you?
Q:I put to you when you use the phrase ‘cut them to size on the stack’, that you were referring to a horizontal stack and the cutting to size on the stack?---
A:The way you described it earlier I agreed with, but not in this – that’s not how.
Q:I asked you if you understood specifically what ‘on the stack’ meant and you said that you did. Do you agree with that?---
A:Yes.
Q:I’m suggesting to you that in accordance with Mr Housden’s evidence you did in fact cut plasterboard sheets to size on the stack?---
A:Not in the manner that you’re asking me, no.
Q:I suggest to you, Mr Hayes, that you are altering your evidence in this case - - -?---
A:No.
Q:- - - from your previous statement?---
A:No.”[36]
[36]Transcript 1117-1118
68 Later, in the cross-examination, it was put to Hayes that the vertical delivery of plasterboard was of great assistance to plasterers. He agreed, saying that it was the preferable way. He was then asked that if the statement suggested that sheets of plaster were not cut “on the stack”, that is, horizontally as opposed to vertically, then the statement was false. He agreed. He also agreed that the statement, if read that way, would be inconsistent with the evidence of Dale.[37] However, that part of the cross-examination was premised on Hayes accepting that his reference to “on the stack” in the statement meant that the sheets of plasterboard were cut horizontally, when in fact his earlier evidence was a flat denial that that was how Housden went about cutting sheets of plasterboard.
[37] Transcript 1122
69 The next attack on Hayes’ creditworthiness was made through a prior representation of Wilson. Wilson is the principal of Melbourne Injury Lawyers Pty Ltd, who are the solicitors retained by Housden to represent him in this proceeding. Wilson telephoned Hayes on 10 August 2013. She recorded the upshot of that conversation in a handwritten diary note which I will come to shortly. On 11 August 2013, she typed up her handwritten diary note into a typed diary note with the addition of a note of her impressions of Hayes, the value of his evidence in support of Housden’s case, and what difficulties she foresaw if Hayes was called by Housden to give evidence. The typed diary note was not sent to Hayes. He was not asked to sign it.
70 Before turning to the handwritten diary note and the typed diary note, I should revisit the basis upon which this evidence was admitted. I ruled that the substance of what is recorded in the diary note and the typed diary note constituted a previous representation as referred to in s44 of the Evidence Act 2008.
71 The use of a previous representation is conditional upon ss(2) being satisfied, that is, if the evidence of the representation has been admitted, or, that it will be admitted. I ruled that Mr Ingram could cross-examine Hayes by reference to the diary note and the typed diary note on condition that he call Wilson. He cross-examined Hayes first, and subsequently called Wilson.
72 Wilson was asked to read the handwritten diary note into evidence. If there was any difference between the handwritten diary note and the typed diary note, it was only because the handwritten diary note was a shorthand version on which she expanded to create the typed diary note. The relevant parts of the handwritten diary note are:
“… used to be mainly stood up, then it changed. Someone died - electrical contractor. Started loading sheets down towards end of period by law. Hard for tractors to deliver that way. Electrician pull them away from wall to get to wall. Now always laid down … Preferable to stand them. Hard to cut. If I had a choice, stand them up and cut them. Lifting off ground more difficult. Get to bottom of stack would sometimes stand up. Don’t remember date of accident …”.[38]
[38] Transcript 1235-1236
73 The relevant part of the typed written diary note is as follows:
“In my view as a plasterer it is preferable for the sheets to be stacked vertically. They are harder to cut when horizontal on the floor and they are harder to lift off the ground. If I had a choice it would have been vertical. At the sites I perform plastering work for GSR Plaster, the sheets are delivered and stacked horizontally.”[39]
[39] Exhibit A5
74 After Hayes read the type written diary note he was asked whether he agreed with its contents. He gave two answers. The first was that if Wilson said that he said what is contained in the type written statement, then it was correct. He was then asked to give an unqualified answer whether it was correct or not. He said it was. The substance of the type written diary note was put to him:
Q:“Can I just take you back to the second page and the second paragraph where you said, ‘In my view as a plasterer, it was preferable for the sheets to be stacked vertically. They are harder to cut when horizontal on the floor and they are harder to lift off the ground. If I had a choice, I would have been vertical.’ Can I suggest to you that you are there saying that you were in fact involved in the cutting of sheets on the horizontal stack?---
A:No.
Q:And that because you cut them on the horizontal stack, they were harder to lift off?---
A:No.
Q:And it was because of that that if you had a choice you would have preferred for them to be delivered vertically?--
A:No, I preferred them to be delivered vertically, full stop.
Q:But the statement doesn’t say that. It says, ‘They’re harder to cut when horizontal on the floor and they’re harder to lift off the ground’?---
A:Yes, because you have to slide it off the stack in a vertical position so I’m doing extra work as opposed to if they were delivered vertically.
Q:Mr Hayes, you don’t say there that you have to slide them off the stack to cut them vertically. You say, ‘They are harder to cut when horizontal on the floor’?---
A:Because of that it was just like this - a bit left out. It was just - because I have to slide it down off the stack, so ‑ ‑ ‑
Q:I suggest that that means and reads that you in fact found them harder to cut them when they were on a horizontal stack?---
A:I disagree with the way that’s written.
Q:You already agreed with me about five minutes ago that that would be correct, what I read out to you?---
A:Well, I just disagree with that. The way it’s written is not - or the way you’re interpreting it I disagree with because it’s leaving out the slide - once they’re horizontal, I have to lift them down and it’s still against the stack - against the horizontal stack.
Q:Why don’t you explain to me what, ‘They are harder to cut when horizontal,’ has to do with lifting them to a vertical plane in order to cut them?---
A:Because you have to slide it off the stack in the horizontal position and lean it against the horizontal position to cut it.
Q:What about the paragraph that follows, ‘When we get them towards the bottom of the stacks, we sometimes stand them up’? I suggest that means that when you became low in the stack you would stand them up but before that time you would cut them on the stack?---
A:Not correct.
Q:What does that sentence mean then?---
A:That means that once the sheet has got to a certain height, then we’d stand them all up in one stack against the wall. Prior to that, we would pull each sheet down and lean it against the stack.
Q:‘When we get towards the bottom of the stacks we sometimes stand them up,’ means, according to you, that before the bottom of the stack you would remove each sheet individually and stand it vertically, and when you got towards the bottom of the stack you would move a number of sheets together to stand them vertically?---
A:Yes.
Q:I suggest to you that that evidence is completely and utterly false and that what you are clearly conveying in this sentence, ‘When we get towards the bottom of the stacks we sometimes stand them up,’ indicates quite clearly that you cut them vertically and it was only when you reached the bottom of the stacks that you cut them horizontally and it was only when you reached the bottom of the stack that you lifted the sheets up and cut them vertically?---
A:No, I disagree. That's not correct.” [40]
[40] Transcript 1999-1200 and Transcript 1203-1204
75 The last substantive attack made on Hayes’ creditworthiness was based upon Hayes informing Wilson that he was $20,000 to $30,000 out of pocket because Housden had failed to make superannuation contributions for his benefit as he should have. Hayes admitted that there was a point in time at which he was extremely annoyed with Housden because of his failure to make the relevant level of superannuation contributions, but he said that was a long time ago. I took that to mean that he is no longer extremely annoyed, given the relevant period of time that has passed. He denied that he had declined to give evidence for Housden because of the superannuation contribution issue.[41]
[41] Transcript 1201
76 During re-examination, Hayes said that he had never used the expression “cutting on the stack” to describe the way he went about cutting sheets of plasterboard.[42] He explained that what he meant by what he said in the statement “we would cut them to size on the stack” meant pulling the sheet of plasterboard down off the stack and cutting them vertically.[43]
[42] Transcript 1218
[43] Transcript 1218
77 The reference in the statement to “we would cut them to size on the stack” is equivocal as to its meaning. It is already apparent to me that there is some confusion in what is meant by “cutting on the stack” and “cutting off the stack”. Irrespective of whether those expressions, or either of them, referred to cutting sheets of plasterboard when horizontal or vertical, what I am left with when analysing the evidence of Hayes is that he was adamant that the sheets of plasterboard were cut vertically. The reference in the statement is potentially a prior inconsistent statement, but it all depends upon the context in which the expression “we would cut them on the stack” was intended.
78 As far as the diary note and the typed diary note are concerned, I am less troubled in concluding that what I have quoted from the typed diary note is consistent with Hayes saying that Housden cut the sheets of plasterboard when they were vertical.
Wilson’s evidence
79 Wilson was cross-examined about the purpose she had in mind in taking a statement from Hayes. Her focus was whether plasterboard had ever been delivered vertically. She candidly admitted that she did not go into any detail with Hayes about how sheets of plasterboard were cut.[44] She also candidly admitted that at the time she spoke to Hayes, she did not appreciate that the position of the plasterboard and how it was cut by Housden was to be part of his case.[45]
[44] Transcript 1241 and 1243
[45] Transcript 1243
Tunne’s Evidence
80 Tunne is a landscape gardener by occupation. He worked full time for Housden from about March 2004 for about twelve months as a labourer. He obtained employment with Housden through a family friend of Hayes.
81 During examination-in-chief, Tunne said that the plasterboard was delivered horizontally. He had only cut plasterboard once or twice in the relevant period he worked for Housden. He described how he saw it being done, and that he saw the sheets of plasterboard being cut vertically:
Q:“Just stop for a moment, can you listen to my question. I asked you when the boards were delivered horizontally did you observe how they were cut when they'd been delivered horizontally?---
A:Yes.
Q:You’ve observed them being cut once they’re delivered horizontally. What did you observe? How were they cut?---
A:The top sheet was taken off the pack, stood vertically against the stack and then cut until a point in time it got down to the last couple of boards and the board that you’d pull off wouldn’t hold itself when you’d go to store it, it’d slide out, so that you’d have to stack the rest of them up against the wall and you would continue just cutting vertically.
Q:From the start of the stack, as I understand it, your evidence is that they were pulled down. Is that correct?---
A:Yes.
Q:They were rested against the stack?---
A:Yes.
Q:In that fashion how many people used to lift those boards off the top of the stack? Was it a one man, two man job, three man job? ---
A:Paul was doing it by himself, but we’d try and - no, Paul was doing - the first part of the stack was done by Paul, yes, or Brett (indistinct)
Q:You described once the boards get to a certain level then if they’re standing up the stack won’t support them. Is that correct?---
A:That’s correct, yes.
Q:What was the process of cutting once the boards got to a certain level?---
A:You would stop cutting and stand them up, it was just easier and quicker. Then stop work and then stand them all up and then continue cutting vertically.
Q:So what would you stand them up against?---
A:The kitchen wall.
Q:Would it be the process that down to a certain level they would be lifted up one at a time and stacked vertically, or would they all be lifted up off the stack?---
A:Yes, one at a time, two guys would move them across. Paul would slide the sheet off to us, Brett and I would pull it up and then we would walk across to the wall and drop it and then stand them up, and repeat that process until all the sheets were stacked.
Q:When you say ‘repeat that process until the sheets were stacked’, do you do mean they were stacked horizontally or vertically?---
A:They were stacked vertically against the wall.
Q:Once they were stacked vertically as you have described, how was it that they were then cut?---
A:They were then cut in the same way with a set square, scored downwards and brought to them.
Q:So in the fashion you described as when they were delivered vertically. Is that correct?---
A:That’s right.
Q:Mr Tunne, are you able to tell His Honour please that fashion in which you have described the boards were cut, I am talking about after they’re delivered horizontally?
A:Yes.
Q:That fashion you have described where they are lifted off, placed vertically and then cut, are you able to state what percentage of the time that system of cutting was employed? Was it 100 per cent or was it some period or some percentage less than that?---
A:99 per cent of the time, it was always cut like that, yes.
Q:For the remaining 1 per cent are you able to tell His Honour, again after they have been delivered horizontally, for that remaining 1 per cent how was it they were cut?---
A:If there was a short section, a very thin section that needed to be cut then, yes, they would run the knife down the board horizontally and just fold it underneath itself and then cut the back, cut the rest of the sheet and take it away.”[46]
[46] Transcript 1299-1302
82 Later, in examination-in-chief, Mr McWilliams informed Tunne of Housden’s evidence, and in particular, that the plasterboard was delivered horizontally and how he would cut sheets of plasterboard while they remained horizontal. It was at this point that Tunne said that he did not see Housden cut sheets of plasterboard with quite as much frequency, and he was somewhat doubtful how many times Housden actually cut sheets of plasterboard vertically or horizontally.[47]
[47] Transcript 1303-1304
83 The description Tunne gave of how sheets of plasterboard were cut when vertical was different from the impression I was left with after hearing Hayes’s evidence. Tunne said:
Q”“At the time when or during the time where the plasterboards were delivered vertically as you’ve described how was it that the boards were cut?---
A:The boards were cut by using a setsquare. Take a measurement from one end, pencil it and then with a set square they’d run their knife - like I didn’t personally do this, but they’d run their knife down the square to cut the first side of the paper, bring the sheet forward, break the plasterboard and then run the knife up the back of the sheet and then push it back onto the stack and that would break - normally break just the bottom bench and then would take the sheet away.”[48]
[48] Transcript 1298
84 Tunne made demonstrative gestures with his hands while sitting in the witness box at the time when he answered that question. The impression I was left with from his oral description and gestures was that the sheets of plasterboard were moved from the stack and made vertical. After it was measured it was cut on one side with a Stanley knife, and then moved forward and cut on the other side before being pushed back onto the stack to break the sheet of plasterboard at the point where it was cut. During cross-examination conducted by Mr Gorton, Tunne confirmed that that was the way cutting of sheets of plasterboard was undertaken. He added that Housden used his toe to push the sheet of plasterboard back to snap it at the bottom while it was still vertical, and that he saw Hayes cut both sides.[49]
[49] Transcript 1307-1308
85 During cross-examination conducted by Mr Ingram, it became apparent that Tunne observed sheets of plasterboard being cut while horizontal. He said that the top two sheets of the stack were used to cut smaller sections. He said that was not a regular occurrence. He saw Hayes cutting sheets of plasterboard horizontally for the purpose of cutting smaller sections of plaster.[50]
[50] Transcript 1310
86 Tunne was uncertain of the frequency that he saw Housden cutting sheets of plaster while horizontal because he was not watching him closely;[51] however, in re-examination, he was asked:
Q:“Bearing in mind that frequency with which you saw him doing the cutting does that assist you in telling His Honour, firstly, when comparing cutting the boards vertically, as you’ve described by sliding them down and then cutting them vertically, by comparison to cutting them horizontally are you able to tell His Honour, comparing those two forms of cutting the boards, whether one way was done more than the other?---
A:Yes, cutting them vertically was done way more than cutting them horizontally.”[52]
[51] Transcript 1313
[52] Transcript 1315
Matthew’s evidence
87 Matthews commenced working as a plasterer, presumably as an apprentice, when he was sixteen years of age in 1967. He has been a plasterer, and now a stopper for a period of forty-six years. He presently operates a business known as “Matthews Plaster”. Its source of work is through a sub-contract agreement with Boral.
88 Matthews undertook stopping work for Boral during the relevant period. He said that plasterboard was delivered horizontally. He had observed Housden cutting plasterboard vertically. He estimated that he was on a site at the same time as Housden, on average twice a month. He said he would probably see him at work for about 15 minutes on those occasions. He said that what he saw of Housden’s practice was as follows:
Q:“In your role as a plaster hanger, how frequently - and if you do your best to consider the period 2004 to 2007 – how frequently would you see Mr Housden on site? Are you able to put sort of an average period of time or average number of days?---
A:On average, twice a month.
Q:When you would see him twice a month, at those times how much time would you see him going about his work?---
A:15 minutes.
Q:With those observations, Mr Matthews, firstly did you see Mr Housden cut plasterboard on site?---
A:Yes.
Q:Are you able to tell His Honour what you observed Mr Housden to do?---
A:Drag the sheets off the top of the stack, stand them up vertically and then proceed to cut the sheets - measure and cut the sheet.
Q:How does that compare with the way plasterboard sheets were cut before they were delivered horizontally? How were they cut when they were delivered vertically?---
A:Just standing up vertically?
Q:Yes?--
A:Yes, just the same procedure.
Q:Did you ever have any discussion with Mr Housden about how it was he went about cutting about plasterboard sheets that were delivered horizontally?--
A:Yes, he told me once that they used to stand them up vertically, cut them, and then when they got to a certain level they would stand them up against the wall vertically to cut the remaining sheets.
Q:So when they got to a certain level - - -?---
A:Yes.
Q:- - - they would stand the boards up. Is that correct?---
A:Yes.
Q:What did you observe in relation to that practice? Did you see that particular practice being adopted by Mr Housden?---
A:Yes.
Q:Could you tell His Honour what it is you observed about that onsite?---
A:Well, when the sheets got to a certain height, Mr Housden would push them off, then cart them over to a wall to stand them all up vertically.”[53]
[53] Transcript 1046-1047
89 During the relevant period, Matthews observed other plasterers cut sheets of plasterboard in the same way he saw Housden cut sheets of plasterboard, that is, standing the plasterboard up vertically and then cutting them.[54] That is in contrast to the evidence of Dale, who, when referring to his observation of how Housden cut sheets of plasterboard, referred to observing “plasterers” cutting sheets of plasterboard in that manner. I am not entirely sure whether he used the plural intentionally. If he did, then I assume he was referring to the plasterers in the other gang because it was his evidence that he only supervised two gangs of plasterers. No other plasterers who worked under sub-contract agreements with Boral were called.
[54] Transcript 1048 and 1067
90 During cross-examination, Matthews said that, generally speaking, plaster hangers and stoppers are not on the same site at the same time, nor on the same level of a building site.[55] He disagreed that the infrequency of his observations of Housden meant that he did not observe how Housden went about cutting sheets of plasterboard.[56]
[55] Transcript 1065
[56] Transcript 1068
91 During re-examination, Matthews said that Dale attended sites on which he and Housden worked about three times a week.[57] That is, in contrast to Dale’s own evidence that he attended a site before plastering work commenced and then on one further occasion, after plastering commenced, to have a chat. However, perhaps the more frequent attendances noted by Matthews were after the hangars had completed their work and the stoppers were going about their work.
[57] Transcript 1072
92 Matthews also said that, during the relevant period, the work he undertook as a stopper was on estates and, it would appear, mostly single houses. He said it was very easy to observe what Housden was doing because they were working next door to each other, and he was able to see through the houses to where Housden was working.[58]
[58] Transcript 1073
How was the cutting undertaken?
93 Looking at the evidence I have summarised from a distance gives the impression that there are two completely opposed versions of how Housden cut sheets of plasterboard. The opposing versions potentially comprise Housden and Dale on one side, and Hayes, Tunne and Matthews on the other side. However, drilling down into the detail of the evidence of those witnesses demonstrates to me that Housden’s evidence of how he cut sheets of plasterboard is far less likely to be the case.
94 It is trite to say that the pleadings in any case are of critical importance in setting out so much of the facts for the factual matrix of a plaintiff’s case to be understood, in the context of the legal principles embraced by the pleadings. It is the aggregation of the facts against the legal principles which either demonstrate, or fail to demonstrate, a breach of those principles entitling the plaintiff to relief.
95 The pleading of the Statement of Claim relied on by Housden appears to me to plead a case based upon the whole of the work which the plaintiff undertook during the relevant period, and not limited to cutting sheets of plaster while they were horizontal. The pleading in that form appears to me to be consistent with the evidence of Wilson, that the formulation of precisely how Housden was to put his case at trial had not completely evolved at the time the Statement of Claim was drawn, and maybe not until Housden’s case was opened at trial.
96 However, I have not placed much weight on the pleading. I assumed, and wrongly so, that in the absence of objection at that time when Housden’s case was opened, that Boral understood how Housden intended to put his case at some time prior to the opening. It was only later when the trial was well underway that the contrast between the way in which Housden’s case was pleaded and opened was mentioned, but not mentioned as an objection but rather as an observation of the position in which Boral found itself having to reshape its case.
97 The affidavits sworn by Housden in support of his application for serious injury pursuant to s134AB of the ACA do constitute a prior inconsistent statement. It must be understood that the affidavits serve the purpose of satisfying all of the elements required in order to have serious injury conceded, or to persuade a judge at trial that leave ought to be granted for the applicant to commence a common-law proceeding.
98 One of the elements which Housden needed to satisfy was that he was an employee of Stebec, and that the injury he suffered was incurred in the course of and within the scope of his employment with Stebec. In order to do that he needed to set out so much of the facts that demonstrated that the injury was incurred through some work process or incident, hence the necessity for him to say something in that regard in paragraph 14 of the affidavits.
99 Taking what Housden said in paragraph 14 of the affidavits at face value, and ignoring the body of evidence which I heard in the trial from the many witnesses whose evidence went to how Housden cut sheets of plasterboard, I am left with little doubt that the reference to sliding a sheet of plasterboard “off the top of the pile” is more likely than not to mean removing a sheet of plasterboard from the horizontal, and it is consistent with being slid off for the purpose of subsequently being cut. It is difficult to understand how the sheet of plasterboard could be slid off and still remain horizontal. By inference, sliding off a sheet of plaster must have put it in a position other than being horizontal, and the only other position it could be placed in for the purpose of cutting was vertical.
100 The prior inconsistent statement comprising what Housden swore to in his affidavits does undermine my confidence in being able to accept his evidence that he cut the sheets of plasterboard always on the horizontal except for the top few sheets.
101 The cross-examination of Housden from the WorkCover Worker’s Claim Form, the WorkCover Employer’s Claim Report and the history taken by Kikas have been dealt with in the body of these reasons. For the sake of completeness, I am not persuaded that they impinge upon the credit of Housden in any significant way.
102 Housden relied heavily on the evidence of Dale as corroboration of his evidence that he cut the sheets of plasterboard while they were horizontal. Dale’s evidence was that he supervised two gangs of plasterers. Housden’s was one gang. He said that he observed Housden cutting sheets of plasterboard while they were horizontal, and he saw “plasterers” cutting sheets of plasterboard the same way. What is clear from his evidence is that he assumed that sheets of plasterboard had to be cut that way because it was an instruction from Boral. He agreed that he had a conversation with Housden about that in which Housden expressed his concern about having to cut sheets of plasterboard in that way.
103 Even though he assumed that the sheets of plasterboard had to be cut that way, that he saw Housden cutting sheets of plasterboard that way, and also other plasterers, I am not persuaded that his exposure to Housden and what he and his gang did is consistent with what Housden and his gang actually did when it came to cutting sheets of plasterboard.
104 The evidence discloses that on the two occasions on which Dale regularly attended a site, only on one was Housden actually on site undertaking hanging of sheets of plasterboard. That occasion lasted about 15 minutes and involved having a chat to Housden, and perhaps members of his gang. The inference I draw is that if it was a chat, that it was probably in a setting where Housden, at least, and perhaps members of his gang, had downed tools in order to have the chat. Alternatively, they may not have downed tools, but it is a little difficult to see how the chat could have occurred while they continued working.
105 Dale’s evidence about how often he attended sites is in contrast to the evidence of Matthews. Matthews had Dale attending about three times per week. Perhaps, the explanation lies in the fact that Matthews was a stopper. The stopping work would not commence until the hangers had almost completed their work. In any event, I prefer the evidence of Dale that the only occasion he attended a site where Housden was working was on one occasion to have a chat.
106 I prefer the evidence of Hayes, Tunne and Matthews that the dominant method of cutting sheets of plaster was to remove a sheet of plasterboard from the stack and stand it up vertically. My reasons for preferring their evidence is because they worked in very close proximity to Housden. Matthews less so, but Hayes worked with him every day as part of his gang, as did Tunne during the time he worked as a labourer for twelve months from March 2004.
107 It is the aggregate impact of the evidence of Hayes, Tunne and Matthews which I find more persuasive, in that it was more likely than not that the dominant method of cutting sheets of plaster during the relevant period was as I have described in the preceding paragraph.
108 Much was made of the expressions “cutting on the stack” and “cutting off the stack”, but in the end neither of those expressions is of any particular moment because they appear to have been used in the trial to describe either cutting of sheets of plaster while horizontal or cutting sheets of plaster while vertical.
109 Despite the cross-examination of Hayes regarding his creditworthiness, what I am left with after closely analysing his evidence-in-chief and cross-examination is that the dominant method of cutting sheets of plaster was to remove them from the stack and make them horizontal before cutting occurred. I am fortified in accepting his evidence because of the evidence of Tunne, whose evidence was much to the same effect, and the evidence of Matthews.
110 Hayes’s credit was attacked on a number of bases. Firstly, that the statement he made to the VWA constitutes a prior inconsistent statement. It was the expression “on the stack” to which his attention was directed. It was put to him that his acceptance that “on the stack” meant horizontal was consistent with Housden’s evidence that the sheets of plasterboard were cut while horizontal. Hayes disagreed, and did so repeatedly.
111 Secondly, the previous representations of Wilson and her handwritten diary note and typed diary note were put to him as something akin to a prior inconsistent statement. Whilst I mean no disrespect to Wilson nor do I make any suggestion of anything untoward regarding her creditworthiness or reliability, it must be remembered that this is a diary note prepared by her which was never given to Hayes in its typed form for him to accept, revise or reject.
112 Initially, Hayes accepted that if Wilson had recorded what he said, then the diary note was correct in its content; however, he denied that the content of the diary note put to him was consistent with him representing to Wilson that the sheets of plasterboard were cut while horizontal. His explanation for that part of the statement which read “they are harder to cut when horizontal” appears to me to be a perfectly reasonable one. He said that to have to slide a sheet of plasterboard off the horizontal required extra work as opposed to if they were delivered vertically.
113 It must also be remembered that Hayes was first exposed to the typed diary note while he was in the witness box. It was put to him as if it was his statement. It was during the very particular cross-examination conducted through a dissection of the typed diary note that he gave very particular answers about what expressions used in the typed diary note meant. On my examination of the handwritten diary note, the typed diary note and the transcript of his cross-examination, I think evidence he gave about how Housden cut sheets of plasterboard, and the meaning of the content of the statement and the typed diary note are plausible.
114 The last attack on his credit was the alleged ill feeling he has for Housden because Housden did not make the superannuation contributions he should have, putting Hayes significantly out of pocket. Whilst I can see why Hayes would have some ill feeling toward Housden, I am not persuaded that the superannuation contribution issue coloured his evidence to such an extent that he lied. Again, I am fortified in reaching that conclusion not only because I consider that his evidence on the issue of how the sheets of plasterboard were cut is plausible, but because of the evidence of Tunne and Matthews which is very much to the same effect.
115 The notation at the foot of the typed diary note is informative of the focus of the enquiry made by Wilson of Hayes during her telephone conference with him. What is clear is that Wilson considered that part of the factual defence which Boral would probably present was that the plasterboard was never delivered vertically. That was not the case as it transpired. Vertical deliveries had occurred before 2004, and according to some of the documents tendered by Boral, vertical deliveries were considered appropriate when they were fixed by tape to the frame of the building accompanied by a sign affixed to the delivery noting that caution was to be taken by persons handling a vertical delivery or persons being in close proximity to it.
116 Tunne struck me as being a witness who was trying very hard to give a truthful account of what he observed while working as a labourer for Housden from March 2004. Initially, he said that the plasterboard was cut vertically. He then expressed some doubt, not whether they were cut vertically, but the extent to which they were cut vertically, but in the end I was left with the strong impression that the dominant manner he observed of the cutting sheets of plasterboard by Housden was to remove a sheet of plasterboard from the stack and make it vertical, and when vertical, the cutting was undertaken.
117 Housden’s case at trial was based upon the dominant form of cutting being undertaken while the sheets of plasterboard were horizontal. The only variation from that was the few top sheets which were cut vertically because of the difficulty cutting them horizontally due to the vertical size of the stack.
Summary of findings
118 In summary, I find that the extent that Housden cut sheets of plasterboard while horizontal was marginal. Cutting them while they were vertical was the dominant manner in which he undertook that task.
119 What has persuaded me to reach that finding is, firstly, the fact that the pleadings appear to me to contemplate a case put quite differently than the one which was opened. Whilst I have given that some weight, it is not something on which I have placed all that much weight. Additionally, I consider that the affidavits in support of his application for serious injury are prior inconsistent statements for the reasons set out above.
120 While Dale was a reasonably impressive witness in that he was composed, and gave answers in evidence-in-chief and cross-examination very fairly and without any hint of favouring one party over the other, his evidence is dramatically at odds with Hayes and Tunne, who I think were in the best position to observe precisely how Housden went about cutting sheets of plasterboard. I am less inclined to accept his evidence because of the infrequency of the occasions when he observed Housden at work, and again, because I prefer the evidence of Hayes, Tunne and Matthews, whose observations struck me as being clear, reasonably precise and absent much doubt as to how Housden went about his work.
121 In the end, the aggregate impact of the initial pleading of Housden’s case, the prior inconsistent statement comprising Housden’s affidavits, and the fact that I prefer the evidence of Hayes, Tunne and Matthews has led me to conclude that I do not accept that Housden cut the sheets of plasterboard in the manner he described in his evidence-in-chief. Therefore, Housden’s proceeding must be dismissed.
122 The VWA’s proceeding shares a common interest with Housden’s proceeding. The VWA relied upon the same allegations of negligence and breach of statutory duty as did Housden. It must follow, therefore, that the VWA proceedings must also be dismissed.
Orders
123 On the basis of the foregoing, I think the orders which must follow are:
· Housden’s proceeding must be dismissed.
· Judgment must be entered for Boral in Housden’s proceeding.
· Boral’s third-party proceeding must be dismissed.
· Judgment must be entered for the third parties against Boral.
· The VWA proceeding must be dismissed.
· Judgment must be entered for Boral in the VWA proceeding.
124 It is inevitable that orders for costs must be made. I will now invite the parties to address me on the formal orders that should be made in both proceedings and what orders for costs should be made.
---
0
0