Martli v Ledger Engineering and Construction Pty Ltd (in Liquidation)
[2002] WADC 240
•20 NOVEMBER 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MARTLI -v- LEDGER ENGINEERING & CONSTRUCTION PTY LTD (IN LIQUIDATION) [2002] WADC 240
CORAM: MARTINO DCJ
HEARD: 10 & 11 SEPTEMBER, 6 & 7 NOVEMBER 2002
DELIVERED : 20 NOVEMBER 2002
FILE NO/S: CIV 2693 of 2001
BETWEEN: ZEKI MARTLI
Plaintiff
AND
LEDGER ENGINEERING & CONSTRUCTION PTY LTD (IN LIQUIDATION)
Defendant
Catchwords:
Torts - Negligence - Personal injury - Independent contractor or employee - Employer's liability
Legislation:
Nil
Result:
Plaintiff succeeds in trial of action on liability, no contributory negligence
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Ms F C E Davis
Solicitors:
Plaintiff: Ilberys
Defendant: Phillips Fox
Case(s) referred to in judgment(s):
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
McLean v Tedman & Anor (1984) 155 CLR 306
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204
Zurich Australian Insurance Ltd v Amec Services Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 980139; 31 March 1998
Case(s) also cited:
Bachor v Electricity Trust of SA (1984) 117 LSJS 407
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
Driscoll v J Scott Pty Ltd (1975) 8 ALR 593
Electric Power Transmission Pty Ltd v Cuiuli (1961) 104 CLR 177
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Commissioner of Taxation of the Commonwealth of Australia v Barrett & Ors (1973) 129 CLR 395
General Cleaning Contractors Ltd v Christmas [1953] AC 180
Hetherington v Mirvac Pty Ltd [1999] NSWSC 443
Hollis v Vabu Pty Ltd (t/as Crisis Couriers) (2001) 181 ALR 263
Itsikos v Ekklisirhis, unreported; SCt of NSW; BC8901356; 11 December 1989
Kondis v State Transport Authority (1984) 154 CLR 672
O'Connor v Commissioner for Government Transport (1958-59) 100 CLR 225
Raimondo v State of South Australia (1979) 23 ALR 513
Sarvanidis v Chicago Bridge and Iron Constructors Pty Ltd (1989) A Tort Rep 80-292
Smith v The Broken Hill Pty Co Ltd (1957) 97 CLR 337
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Waugh v Kippen & Anor (1986) 160 CLR 156
Williams v The Commissioner for Road Transport and Tramways (NSW) (1933) 50 CLR 258
Williams v Trimview Roof Restoration Pty Ltd [2001] WADC 22
Williams v Trimview Roof Restoration Pty Ltd [2001] WASCA 414
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110
The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561
MARTINO DCJ:
Introduction
In 1998 the defendant ("Ledger Engineering") carried on a steel fabrication business at its premises in Sheffield Road, Welshpool. In September 1998 the plaintiff ("Mr Martli") was doing welding work for Ledger Engineering at those premises. Mr Martli claims that he injured his back when attempting to load a coil of welding wire onto a wire feeding machine. In this action Mr Martli claims damages for that back injury.
Ledger Engineering does not admit that Mr Martli was an employee. It also denies that any injuries suffered by Mr Martli were caused by any breach of duty by Ledger Engineering and alleges that any injuries suffered by him were caused or contributed to by his own negligence. Although its defence does not specifically allege that Mr Martli was an independent contractor that is the case that it presented at trial and there was no suggestion that Mr Martli was taken by surprise by Ledger Engineering raising that issue. The defence does not admit that any injury was suffered by Mr Martli but it was not disputed at trial that Mr Martli did suffer some injury while working at Ledger Engineering's premises. The trial was limited to the issue of liability.
Mr Martli
Mr Martli was born on 6 June 1965 in Turkey. He migrated to Australia with his family in 1974. He attended school in Western Australia to Year 10 level.
He commenced work as a trades assistant in metal work on leaving school. He obtained a certificate as a second class welder in 1982 and qualified as a welder in 1996.
Ledger Engineering
Ledger Engineering carried on business from its factory premises in Welshpool. Those premises included two large areas inside its factory shed which were called the "east bay" and the "west bay". Each of those bays had large overhead gantry cranes. One of the fields of work carried out by Ledger Engineering was on very large truck trays for Komatsu.
Ledger Engineering's work force included both employees who were paid wages and persons who worked for an hourly rate who were described as subcontractors. Both employees and those called subcontractors worked at the premises of Ledger Engineering and performed tasks assigned to them by the staff of Ledger Engineering. They were treated no differently in the way in which they were assigned work or supervised and it would not be possible for a person observing wages employees and subcontractors working at Ledger Engineering's premises to identify which were employees and which were subcontractors.
Mr Martli's engagement by Ledger Engineering
In or about the week commencing Monday, 14 September 1998 Mr Martli applied for a job as a welder with Ledger Engineering. He was given a welding test and shortly afterwards Ledger Engineering offered Mr Martli a job which Mr Martli accepted.
Ledger Engineering's supervisor told Mr Martli that he could start work immediately. He was to work on a subcontract basis at the rate of $23 an hour with Ledger Engineering paying superannuation and insurance. Tax was to be deducted from his income under the PPS scheme. The supervisor informed Mr Martli that the normal work hours were from 7.00 am to 3.00 pm and he was likely to be offered some overtime outside those hours and on weekends. Mr Martli could not recall the name of the supervisor but described him as a man with a ponytail. The person who spoke to Mr Martli was a Mr Lenard Cotgrove, who was foreman of boilermaking at Ledger Engineering and has a ponytail.
The safety induction
Mr Martli's evidence about the safety induction was that it was given to him by a safety officer. His evidence as to the induction was as follows:
"What did you discuss with the safety officer?‑‑‑He had a couple of sheets of paper in his hand and it had square boxes and he just went quick, some of the things like the time start and knock off time and lunchtime and smoko and if the alarm goes off evacuation, and I'm not allowed to use the forklift if I don't have a ticket, and if you have an accident you've got to report to the supervisor and, you know, things like that. As we go on he just ticked them quickly and it took us about roughly 20 minutes or so and he took me around and showed me where the toilets and lunch room and the supervisor's office, storeroom and etcetera.
In relation to smoko breaks or meal breaks did he say anything to you about whether you had to take those breaks?‑‑‑Yes.
What did he tell you?‑‑‑I have to take the smoko and the lunch break with the bell that goes off at that hours, (sic) our lunch hours and smoke hours. I have to take it just like anyone else.
And you were going to be paid $23 an hour?‑‑‑That's right.
Who had to do the work? To earn the $23 who had to do the work?‑‑‑I had to do the work.
Were you told anything else about how to get your meals?‑‑‑Yes, they said, 'If you bring your own this is the lunch room where you put them, otherwise the Jiffy van will come out the front and it will run the horn and that will be a minute or two after the lunch siren we have and you can buy it from outside, from Jiffy.'
The time in the office and the time that you spent being shown the various lunch room, toilet, supervisor's office, storeroom, whatever, how long did that whole induction take?‑‑‑The whole induction, nor more than half an hour.
Were you given a copy of the sheet that the ticks were going on?‑‑‑No.
In that induction course were you given any training about how to do your work?‑‑‑No, no‑one has given me any course or shown me manual handling and no‑one has told me that I have to work on the scaffold and I just know because just the basic welding in the premises, that's all." (T25 – 26)
Mr Cotgrove's evidence was that he was responsible for the induction of boilermakers and sometimes for the induction of welders. If he did not undertake the induction for welders it would be undertaken by Peter Roach who was the welding foreman at the time. However Mr Roach's evidence was that he did not give any inductions and all inductions were given by Mr Cotgrove.
Mr Kevan Wright, who was a trades assistant and a crane driver employed by Ledger Engineering, was a member of Ledger Engineering's safety committee. Other members of the safety committee were Merv Holden and a man named Garth. Mr Wright said that he did not carry out any inductions for new workers and that all inductions were carried out by Mr Cotgrove.
Mr Holden and the man named Garth were not called to give evidence.
It is unclear, therefore, who gave the safety induction to Mr Martli. It is unlikely that it was Mr Cotgrove because Mr Martli recalled that it was someone other than the man with the ponytail and because Mr Cotgrove said that he gave inductions to all boilermakers but not to all welders. Mr Cotgrove could not recall whether or not he had given Mr Martli an induction.
Mr Cotgrove's evidence was that when he gave a worker an induction he would use Ledger Engineering's induction record as a checklist. That record covered matters including the need to wear protective clothing and equipment, the need to report substandard conditions and accidents, the fact that Ledger Engineering had a safety committee and if a member of the safety committee saw a worker engaging in an unsafe work practice the member would ensure that the unsafe practice ceased by either speaking to the worker or to Mr Cotgrove. The induction record included two items: "Requirements of the OHSW Act and Regulations" and "Duties of employees S 2(a) of the OHSW Act". Mr Cotgrove did not understand what those items meant and so he did not cover them in the inductions that he gave.
The accident
There were two shifts at Ledger Engineering ‑ the day shift and the afternoon shift. The day shift was from 7.00 am to 3.00 pm. The afternoon shift commenced at 3.00 pm. Mr Martli worked on the day shift. For the first few days at work Mr Martli worked on the tray of a truck which was upside down. Mr Martli performed this work on the floor of the factory. Mr Martli carried out welding using a welding machine supplied by Ledger Engineering. The welding machine has a wire feeding machine which would hold a coil of welding wire. The wire coil would need to be replaced generally once and sometimes twice a day. When it was necessary to replace a coil of welding wire Mr Martli would collect the new coil from the store, take it to the wire feeding machine, kneel in front of the machine and fit the coil into it. He had no difficulty performing that task.
Mr Martli worked on Saturday 19 September 1998. He did not work on Sunday, 20 September 1998. He did not go to work on Monday, 21 September 1998 as one of his children was ill and Mr Martli took his ill child to Princess Margaret Hospital.
When Mr Martli arrived at Ledger Engineering on Tuesday, 22 September 1998 the truck tray on which he was working was sitting on its side and scaffolding was hard up against the tray with the wire feeding machine set up on a scaffolding plank. Mr Martli was told by a supervisor that he was to work on that scaffolding. Mr John Dee, a welder on Ledger Engineering's work force, was working on the same truck tray.
Mr Martli's evidence was that the scaffolding had a single scaffolding plank approximately two and a half metres above the ground. The wire feeding machine was set up on that single plank. There are different sizes of wire that are used on the wire feeding machine. Mr Marti's evidence was that on the day of the accident he was using 2 millimetre wire. A full coil of 2 millimetre welding wire weighs approximately 23 kilograms. Mr Martli was cross‑examined as to whether in fact he was using 1.2 millimetre wire. Coils of 1.2 millimetre wire weigh 15 kilograms. This line of cross‑examination was based primarily upon the fact that Mr Martli took photos of a wire feeding machine with 1.2 millimetre on it before the trial. Mr Martli maintained that he was using 2 millimetre wire at the time of the accident. Mr John Dee, who was called by the defendant, gave evidence that he was using 2 millimetre wire. I accept that the plaintiff was using 2 millimetre wire at the time of the accident.
The wire feeding machine is loaded with wire from one side only. To load the wire coil it is necessary to lift the coil approximately 500 to 600 millimetres from the level on which the wire feeding machine is standing. The machine is approximately 1.2 metres long and 500 millimetres wide.
Mr Martli's evidence was that the wire feeding machine was situated on a single plank on the scaffolding with the side on which the coil is to be loaded closest to the tray of the truck on which he was working.
Mr Martli's evidence was that because of the limited amount of space between the wire feeding machine and the tray he was not able to adopt a position of bending his knees and keeping his back straight when he loaded the coil onto the machine. He stood with his left foot on the scaffolding plank and his right foot on a scaffolding bar and bent forward to pick up the coil to place it into the machine. He bent down and took hold of the welding wire coil and commenced to lift it. As he did so he felt a sharp stabbing pain in his lower back. He took a break and attempted the same manoeuvre but developed the same pain as soon as he tried to lift the coil. Mr Martli called for assistance from Mr Dee and Mr Dee assisted him to load the coil into the machine. Mr Martli immediately ceased work as he was in severe pain and reported the accident to Ledger Engineering.
There were no witnesses to the accident. Mr Dee's attention was drawn to Mr Martli immediately after Mr Martli injured his back. Mr Dee's recollection of the circumstances was unclear. He could recall that Mr Martli told him that he had hurt his back and that Mr Dee loaded the coil onto the machine. He could not recall whether or not he did so with Mr Martli's assistance. Mr Kevan Wright gave evidence that after the accident he looked at the accident scene and the wire feeder machine was placed diagonally across the beam on the scaffold. However his recollection was based on a quick look at the scaffolding as he walked past on his way to his work. Mr Roach said that the position of the wire feeding machine described by Mr Martli was one that he had seen on other occasions and it was a convenient way to set up the machine to carry out welding. I accept that the wire feeding machine was set up as described by Mr Martli and I accept his evidence of the circumstances of the accident.
Employee or independent contractor?
There are various criteria to determine whether a person who is carrying on work for another is an employee or an independent contractor. The degree of control over the work carried out by the worker is an important factor but it is one of a number of indicators which must be considered. Other relevant matters include but are not limited to the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work, provision for holidays, the deduction of income tax and the delegation of work by the person who is to carry out the work: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 24 per Mason J.
Mr Martli was clearly under the control of Ledger Engineering. The work upon which he was engaged each day was work he was directed to perform by his supervisor. He worked a regular shift and could work overtime if it was made available to him. On the factory floor his position was indistinguishable from that of Ledger Engineering's employees. The work he carried out was an integral part of the business of Ledger Engineering.
He was called a subcontractor, he was paid an hourly rate, he was not entitled to holidays or sick pay and income tax was deducted under the PPS scheme. These factors point to him being an independent contractor however the more important factors of control, that Mr Martli was essentially supplying only his work and skill and the work on which he was engaged was part of Ledger Engineering's business point to Mr Martli being an employee.
I find the facts of this case to be not relevantly distinguishable from the facts considered by the Full Court in Zurich Australian Insurance Ltd v Amec Services Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 980139; 31 March 1998. I conclude that Mr Martli was an employee of Ledger Engineering.
The changing of coils of welding wire when the wire feeding machine was on the scaffolding
As I have mentioned coils of 2 millimetre welding wire weigh 23 kilograms. Various methods of changing those coils were adopted by workers at Ledger Engineering. When counsel for Ledger Engineering asked Mr Roach in his evidence‑in‑chief about the system of work for changing those coils his evidence was:
"What was Ledger's system of work for changing wire spools or coils and are there standard procedures in relation to that for all welders?‑‑‑There isn't a laid down procedure. The welders you're employing are supposed to be experienced and they're supposed to know how to do them. With the 15 kg coils, which are small, which is no problem, you would carry it up to the machine and put it on like that. If it's 25 kg, which is big and cumbersome and heavy, you'd have two methods. You could either lift your wire feed unit off the plank, put it onto the floor and feed the wire on by hand. When I say feed the wire on I mean you put the wire – you fix the wire from the stores, which is in the cardboard circle with the wire around the outside and you put that onto your wire drum and then feed it on. The easiest way to do it is to leave it – once you've got your machine in place it was just tied down and you put your drum onto the floor, put your wire onto the drum and then lift your drum by a crane onto your machine. That's the easy way." (T278 – 279)
Mr Cotgrove's evidence was that when a welder was working at height and he was required to change the coil of welding wire he would use a crane to take the wire feeding machine off the scaffolding and lower it to the floor, put the new coil of wire onto the machine on the floor and then use a crane to raise the machine back onto the scaffolding. The welder could also call for assistance from trades assistants and other workers if he needed to do so. Mr Dee's evidence was that the usual method was to use the crane to lift the coil of wire to the wire feeding machine on the scaffolding or the welder could use the crane to lower the machine down to the ground and change the coil there, depending upon which method was most convenient for the welder.
Mr Wright's evidence was that depending upon the position and height of the wire feeding machine the welder could use the overhead crane to lift the wire to the scaffolding but if the machine was low to the ground most welders picked up the coil, carried it up to the machine and loaded it in that position.
Mr John Thompson, a welder employed by Ledger Engineering at the time, gave evidence that the welder would take the empty spool off the machine, take that away and assemble the coil of wire onto the spool, use the crane to lift it into position and feed the spool loaded with the coil of wire back onto the machine.
These witnesses also gave evidence that at Ledger Engineering a welder was free to set up his work place as he found safe and convenient, that if a member of Ledger Engineering's safety committee saw an unsafe work practice that work practice would be stopped and that on no other occasion has a worker injured his back while attempting to load a coil of wire onto a wire feeding machine.
There was no evidence that at any time Mr Martli was told the appropriate method of changing a coil of wire weighing 23 kilograms when the wire feeding machine was above the ground on scaffolding and there was little room to get access to the side of the machine from which the coil was to be loaded. Mr Roach's evidence as to the instructions given to a new welder was as follows:
"When a new welder started, what did you do?‑‑‑I took him to the job, shown him – explained to him what were required because if it's a different size of welder, position and different things you ought to do with it. Went through the machine with him so that he fully understood the machine because not all the same automatic – all the machines are the same, so that he fully understood how to operate it, how to control it, how to put different settings on it. I gave him his general setting to start with so that he had some guidance where to start and then kept a close eye on him to make sure that he was – he was okay.
Did you give instructions to the welders as to how to change a wire coil?‑‑‑No, it was the ‑ anybody experienced that's a welder can do it. It's part of their job." (T284)
I find that at Ledger Engineering a welder was entitled to set up his work place as he found safe and convenient and that the welder was entitled to use whatever method he thought appropriate to change the coil when the wire feeding machine was on scaffolding above ground. The welder could if he wished to do so use a crane to lower the machine to the ground and use a crane to lift the coil of wire to the machine or call upon assistance from other workers. I also find that Mr Martli was never told these things by anyone at Ledger Engineering and that on 22 September 1998 he encountered a situation that he has not encountered before namely the wire feeding machine was some 2.5 metres above ground, there was little room to get access to the machine to load the coil of wire onto the machine and the coil he had to load was 23 kilograms in weight. Mr Martli therefore had to devise for himself the method of loading the coil. I accept the evidence of Ledger Engineering employees that if a member of the safety committee saw an unsafe work practice being used by a worker that work practice would be stopped and that on no other occasion has a worker at Ledger Engineering injured his back in attempting to load a coil of welding wire onto a machine.
Mr David Barham, a welding consultant, gave evidence that it is unusual to use a crane to lift a coil of welding wire to a welding machine to load the wire onto the machine and also unusual to use a crane to lower the machine to the ground. I accept that in Mr Barham's experience it is unusual. I also accept Mr Martli's evidence that they were not practices that he was familiar with. Nevertheless they were practices used at Ledger Engineering.
Risk of injury
Mr Phillip Hardcastle, a specialist in orthopaedic medicine who has been treating Mr Martli, gave evidence that when a person lifts a weight by bending forward as opposed to getting into a squatting position he puts a lot of extra pressure on the lower lumbar spine and when lifting up a reasonably heavy weight in that position the person could easily cause a disruption of soft tissues in the low lumbar spine. I find that it was foreseeable that if a person attempted to lift a weight of 23 kilograms in a confined space where they could not adopt a squatting position to maintain proper posture when lifting the weight an injury to the back could be caused.
The duty of care owed by Ledger Engineering to Mr Martli
Ledger Engineering owed a duty of care to Mr Martli to avoid exposing him to unnecessary risk of injury: Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18. This duty required Ledger Engineering to provide a safe system of work for its employees and to have regard to the possibility of inadvertence or negligence on the part of its own employees including Mr Martli: McLean v Tedman & Anor (1984) 155 CLR 306.
Was there a breach of the duty
It was foreseeable that Mr Martli would find himself in the position where the wire feeding machine was positioned as it was and it required a coil of welding wire to be loaded onto it. The position of the wire feeding machine in that way was described by Mr Roach as one he had seen before and one which was "all right for welding" because the wire is fed out in the right direction (T283). In my view it was foreseeable that when a worker such as Mr Martli who had only recently commenced work at Ledger Engineering encountered this situation he would attempt to load the coil in the wire feeding machine in its location without any assistance in the absence of training and instruction as to the most appropriate method of doing so. It was also foreseeable that if Mr Martli did attempt to change a 23 kilogram coil in that confined position he would not be able to adopt a safe lifting position and would injure his back.
Counsel for Ledger Engineering referred me to Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 where an independent contractor who fell from a ladder failed in his action. In my view Van Der Sluice v Display Craft Pty Ltd is a significantly different case from this. The use of ladders at height is a matter of everyday experience and the need to exercise caution and care in that situation is a simple well known fact:
"It is a fact as fundamental, as elementary, as clear and as well known as, for example, the fact that it is dangerous to behave boisterously near pots cooking on stoves, the fact that broken glass needs to be carefully handled when picked up, the fact that rocks along the seashore can be slippery, the fact that shells in the sand at beaches can be sharp and the fact that when moving about rubbish dumps one must bear in mind the possibility that rubbish may be lying there." Per Heydon J at [74].
The situation in which Mr Martli found himself was not so obvious to a person who had not been working at Ledger Engineering for many years and so familiar with the appropriate method of handling the situation. I conclude that Ledger Engineering was in breach of its duty of care to Mr Martli in failing to provide him with a safe system of work by instructing him on a safe method of changing coils of 2 millimetre wire when the wire feeding machine was above ground and in a confined space.
Contributory negligence
A worker will be guilty of contributory negligence if he has failed to exercise reasonable care for his own safety. In considering whether a worker has failed to exercise reasonable care for the worker's safety it is necessary to consider the worker's conduct in the context that the worker is carrying out work for the employer and "some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man" may not constitute contributory negligence: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 per Windeyer J at 37. Mr Martli found himself in a position he had not encountered before. It was not a situation in which he had received any training or instruction from Ledger Engineering. In that context I see his conduct as having consisted of an error of judgment rather than a failure to exercise reasonable care for his own safety. I conclude that there has been no contributory negligence by Mr Martli.
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