Kelly v Bae Systems Australia Ltd No. DCCIV-01-504

KELLY V BAE SYSTEMS AUSTRALIA P/L
[2003] SADC 165
Judge Allan
Civil

The plaintiff hurt his back at work on 9 April 1998 when he trod on a drill bit and fell. He claims the injury was caused by the negligence and/or breach of statutory duty of the defendant. He seeks damages from the defendant for the loss sustained by him as a result of the injury. The quantum of those damages has been agreed at $210,000. The issue arising for determination is whether the defendant is liable therefor.
At all relevant times, the plaintiff was employed as a cleaner by Prestige Property Services Pty Ltd, a company which provided cleaning services to the defendant; and the defendant carried on business as a defence contractor in premises it occupied at Salisbury.
Part of the defendant’s premises was a machine shop. The machines in the shop included lathes, drill presses, grinders and milling machines. The shop was kept clean; unusually clean so far as premises of that sort are concerned. The cleanliness of the shop was a matter of pride for the defendant and its employees. The operators of the machines frequently cleaned about the respective machines being operated by them and the plaintiff’s job was to clean the shop generally.
Drill bits of the sort the plaintiff trod on were commonly used in the workshop. Some of the machine operators had their own sets. Drill bits could also be obtained from the store as required. Some machine operators had a drill rack in which they could store the drill bits not being used according to size; and some of those operators would place a drill bit into the rack immediately after using it, while others would leave used drill bits on their work bench and put them in the drill rack at the end of a shift. Some operators would place idle drill bits in a tray; a measure designed to prevent them rolling off the bench. Others would place them on the bench in a way designed to prevent them rolling off. The machine operators were not given any instructions as to the storage of drill bits not being used, it being regarded as inappropriate and unnecessary to direct skilled tradesmen as to the handling of drill bits.
As might be expected in a machine shop, the floor would become littered with swarf, particularly around the machines, and drill bits would also find their way onto the floor; sometimes because operators would inadvertently drop them and other times because they would roll off a work bench. Once the drill bits hit the floor, because of their cylindrical shape, they could roll some distance and be difficult to find; particularly if they fell onto the rubber mat surrounding the machines, causing them to bounce before they rolled. They were recognised as being a hazard if left on the floor and, so, on discovering a drill bit was missing, an operator would search for it. Sometimes, because of pressure of work or whatever, being aware that a drill bit had fallen from the bench, or having dropped one, a machine operator would not retrieve it or search for it. Sometimes, because of noise in the shop and, no doubt, other distractions, the disappearance of a drill bit from a work bench would pass unnoticed; at least for a time. The plaintiff was accustomed to cleaning up drill bits from the floor.
The plaintiff worked the afternoon shift, from 2.30 pm to 7.30 pm. On the afternoon shift about five operators worked on the machines. On the day shift, considerably more operators worked. It depended on the work available. The hours worked by the plaintiff did not allow him time to clean the whole of the machine shop; and, so, at the outset of his shift and prior to cleaning, he inspected the shop to ascertain those areas which needed to be cleaned. It was a matter of prioritising his cleaning duties. He cleaned those areas which most required cleaning in the time available to him.
On the day in question, 9 April 1998, the plaintiff had almost completed his shift when he trod on the drill bit, causing him to lose his balance and fall. He had conducted his usual cleaning duties. The last thing he did was to use a scrubbing machine to clean part of the shop floor.
The scrubbing machine was large. It had two scrubbing pads underneath, two cleaning fluid containers at the top and a “squeegee” on the rear with a vacuum attachment. It was driven by a battery-run motor and was self-propelled by means of a hand throttle.
On finishing with the scrubbing machine, the plaintiff cleaned it and was returning it to the place in the shop where it was stored when he trod on the drill bit. He was walking behind the scrubbing machine. The scrubbing pads had been raised for cleaning purposes and were not touching the floor as the plaintiff steered the machine to its storage place. The scrubbing machine passed over the drill bit without disturbing it and the plaintiff trod on it. He had not seen it. Ironically enough, if the scrubbing pads were in the operating position, the plaintiff would not have trodden on the drill bit: it would have been swept away.
The plaintiff had inspected the area where he trod on the drill bit in his customary way at the start of his shift and had not noticed a drill bit on the floor. He also had not noticed a drill bit in that area on his way to collect the scrubbing machine from its storage place. He had not cleaned that area.
I have no difficulty in finding these facts: they are not really in dispute. So far as the way in which the plaintiff fell is concerned, I am content to rely on his evidence.
It is impossible for me to find, on the evidence, how the drill bit came to be on the floor in the position in which it was when the plaintiff stepped on it; whether it was dropped, fell from a work bench or found its way there in some other manner; and it is impossible to find how long it had been there before the plaintiff trod on it.
There is no dispute that the defendant owed a duty of care to the plaintiff; the real issue going to the extent of that duty; the standard of care.
Subsections (1) and (2) of Section 17C of the Wrongs Act (“the Act”) provides as follows:
“(1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(1)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account –
(a)the nature and extent of the premises; and
(b)the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d)the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of –
(i)the danger; and
(ii)the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h)any other matter that the court thinks relevant”.
The defendant is an occupier for the purposes of the Act.
As Mr. Harms, for the plaintiff, said, there is a sense in which, leaving aside the matter of statutory duty, this case is as much about the general duty of care owed by the defendant to the plaintiff as it is about its duty as an occupier; but I think it does not matter because the question to be answered remains the same: applying the law of negligence to the facts as I have found them, did the defendant discharge its duty of care to the plaintiff? Mr Harms submitted that it did not.
The Particulars of Claim set forth a number of areas in which, it is alleged, the defendant was negligent, but, basically, the plaintiff’s allegations come down to this: the defendant failed to provide or maintain a safe working environment for the plaintiff. Mr Harms submitted that the defendant failed in this regard in that it did not provide, and did not direct employees to use, drill blocks or trays for the storage of idle drill bits; a system which, so the submission goes, would go to preventing drill bits not being used from falling onto the floor. Assuming that the drill bit in question came to be where it was when the plaintiff trod on it because it rolled off a work bench, I do not accept Mr Harms’ submission.
As I have said, the machine shop, including its floor, was unusually clean. A regime, including the duties of the plaintiff, was in place for that purpose. The defendant and its employees were conscious of the hazards presented by the presence of drill bits on the floor and care was taken to see that did not occur and, if it did, that, subject to what I said earlier, the drill bit was located and removed from the floor as soon as possible. I think the requirement proposed by Mr Harms, in all the circumstances, would be an unreasonable one to impose on the defendant. In my view, it would exceed the standard of care required of the defendant in all the circumstances. I repeat that I am not prepared to find that the drill bit came to be on the floor because it rolled from a work bench; nor am I prepared to find that it was inadvertently dropped by a machine operator and a search for it was not instituted. These things are possible, but it is equally possible, on the evidence, that it was inadvertently dropped by an operator of one of the machines and that a search for it was in progress when the plaintiff trod on it.
All this means that, on the facts, I am not satisfied that the defendant was negligent.
So far as the claim of breach of statutory duty is concerned, the plaintiff relied on certain sections of the Occupational Health Safety and Welfare Act (“the Safety Act”). Those sections are as follows:-
“19(1)       An employer shall, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular –
(a)   shall provide and maintain so far as is reasonably practicable –
(i)      a safe working environment
(ii)safe systems of work;
(iii)plant and substances in a safe condition; and
(b) shall provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and
(c) shall provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health…….”
“23.   The occupier of a workplace shall ensure so far as is reasonably practicable -
(a)   that the workplace is maintained in a safe condition; and
(b) that the means of access to and egress from the workplace are safe…..”
“23A.(2)    The owner of a building that comprises or includes a workplace must -
(a)   ensure so far as is reasonably practicable that the building, and any fixtures or fittings within the building that are under the control of the owner, are in a condition that allows people who might work in, on or about the workplace to be safe from injury and risks to health; and
(b) ensure that the building complies in all respects with prescribed requirements (if any) applicable to it…….”
Mr Harms readily conceded that section 23A(2) has no application in the present case.
Sections 19(1) and 23 impose duties on employers and occupiers respectively. “Employee” is defined in the Act as “………a person who is employed under a contract of service or who works under a contract of service”. There seems to be no dispute that the plaintiff came within that definition.
It seems to me that, in the present case, the relevant provisions of the Safety Act do not impose upon the defendant a duty more extensive than that required of it by the law of negligence; with the result that the plaintiff does not succeed on this aspect of his claim: he has not established that the defendant is in breach of its statutory obligation. On the facts, I am not satisfied that the defendant failed to ensure so far as reasonably practicable the safety of the plaintiff from injury.
The plaintiff’s claim will be dismissed.
There will be judgment for the defendant.
I will hear counsel as to costs.

[2003] SADC 165

21 November 2003