Meyer v Cool Chilli Pty Ltd
[2015] ACTSC 336
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Meyer v Cool Chilli Pty Ltd |
Citation: | [2015] ACTSC 336 |
Hearing Dates: | 14, 15 October 2015 |
DecisionDate: | 30 October 2015 |
Before: | Mossop AsJ |
Decision: | See [105] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Fall from ladder – injury to employee of independent contractor while working at premises of third party – limited participation in work by employee of third party – whether negligence or breach of statutory duty by independent contractor or third party – apportionment of liability between independent contractor and third party BREACH OF STATUTORY DUTY – Interpretation of “building work” in Scaffolding and Lifts Act 1912 (ACT) – applicability of statutory duty to principals and independent contractors – scope of statutory duty in relation to temporary use of ladder – Scaffolding and Lifts Regulation 1950 (ACT) ss 73, 80 |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 21, 168 Legislation Act 2001 (ACT) s 148 Scaffolding and Lifts Act 1912 (ACT) s 24 Workers Compensation Act 1951 (ACT) Scaffolding and Lifts Regulation 1950 (ACT) ss 6, 7, 73, 80 |
Cases Cited: | Carton v Rainbow Plumbing and Drainage Pty Ltd [2013] ACTSC 267 Classic Constructions (Australia) Pty Ltd v Fischetti [2015] ACTCA 51 The Uniting Church v Takacs [2008] NSWCA 141 |
Texts Cited: | P Butt Land Law (6th edition) |
Parties: | Ashlea Meyer (Plaintiff) Cool Chilli Pty Ltd (Defendant) Royal Canberra Golf Club Limited (Third Party) |
Representation: | Counsel Mr A Muller (Plaintiff) Mr D Shillington (Defendant) Mr B Kelleher (Third Party) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Dibbs Barker (Defendant) Colin, Biggers & Paisley (Third Party) | |
File Number: | SC 233 of 2014 |
Introduction
On 7 June 2012 the plaintiff, who was working in an IT support role for the defendant, was doing work at the premises of the third party which included the replacement of an uninterruptible power supply for a computer which was located in the ceiling space of a building. As she was climbing a ladder to get into the ceiling space, the ladder slipped from beneath her and she fell to the floor, injuring herself. She has sued the defendant, her employer, in negligence and the defendant has issued a third-party notice against the third party seeking contribution or indemnity.
Events up to the accident
As at the date of the accident the plaintiff was almost 21 years old. Her educational and work history prior to the accident was as follows.
After she completed year 12 at Lake Tuggeranong College she commenced an IT traineeship with the ACT government in July 2009. That traineeship involved a combination of work and study. She left that traineeship six months prior to its conclusion but after having completed a Certificate IV in Information Technology. Although the evidence was not particularly clear she appears to have taken time off work from July to December 2010. In December 2010 she commenced work for Lifeline Australia in a service desk role. She continued in that job until October 2011. She then worked briefly for J & J Interiors before commencing a three month contract at the Australian Competition and Consumer Commission in a service desk role at the beginning of 2012.
In April 2012 she commenced working for the defendant on a full-time basis as a service desk engineer. The defendant was a company which provided IT support to a range of small and medium-sized businesses in the Australian Capital Territory. The two owners of the company were Matthew Smith and Andrew Smith.
The plaintiff’s rate of pay was $1,057 per week, which translates to $54,964 per year. Upon commencement she received a basic induction and introduction to the systems and clients of the business. She became familiar with the “ticketing” system for the allocation of work to employees of the company. Prior to the accident she had been involved in answering the telephone and working on hardware on the workbench but had had limited exposure to fieldwork. She had attended some jobs with Matthew Smith and had also attended the premises of a few of the defendant’s clients on her own. Prior to the accident she had attended the premises of the third party with Matthew Smith who was fixing computers in the shop at the premises. She was shown around the administration building which was not near the site where the injury subsequently occurred. She was aware that some equipment with which the defendant was involved was located in the roof but did not know more than that and had not seen or worked on that equipment.
Prior to the accident she had received no training in relation to ladders, safety with respect to ladders, working at heights or accessing the roof space at the premises of the third party.
She had been away from work for a couple of days and 7 June 2012, a Thursday, was her first day back at work. She arrived at work and when she opened her computer saw that she had been allocated to an on-site job. Because Matthew Smith and Andrew Smith were not there and other senior technicians were not there, she queried the sales manager, James Davis, about her allocation to that job.
There was some difference in the evidence between the plaintiff on the one hand and the assistant general manager of the third party on the other hand as to how the equipment needed for the job was delivered to the third party’s premises.
The plaintiff’s evidence was that Mr Davis printed the relevant records for her and showed her the equipment that needed to go out to the site. He assisted her by loading up her car with three boxes of equipment as well as the uninterruptible power supply that she was required to install.
David Pattrick, the assistant general manager of the third party, gave evidence that the equipment had been already delivered to the site prior to the plaintiff attending. His evidence was that this was the usual way the defendant operated. Although little ultimately turns on it, I prefer the evidence of the plaintiff to that of Mr Pattrick on this point. It appears to me that there was greater reason for the plaintiff to recall what had occurred on that day. Her recollection of being assisted by Mr Davis and the number of boxes loaded into her car was detailed whereas Mr Pattrick, although he was reasonably confident of his evidence, may have been influenced by the usual practice rather than what occurred on this particular day.
It was a requirement that the plaintiff travel in her own vehicle to the third party’s premises. Whether this was the system adopted by the defendant generally or simply what occurred on this particular occasion is not clear. The plaintiff was not supplied with a ladder and could not have in any event taken one as her vehicle did not have roof racks.
She drove to the third party’s premises and met with Mr Pattrick who was the identified IT contact person for the third party. He showed her where the three new computers were meant to be installed and then they went to a storage room from which access was to be gained to the ceiling space where the uninterruptible power supply was to be installed.
The uninterruptible power supply was attached to a computer which was involved in control of the air-conditioning units at the premises. It was located inside the ceiling space above a part of the premises known as the Westbourne function room. Access was gained to that space through a manhole which was in the ceiling of a storage room adjacent to the Westbourne function room. The ceiling space where the computer was located was reasonably spacious and a person of average height was able to walk in that space without bending over. A floor had been installed in the area so that it was possible to walk normally from the manhole to where the computer was located. The computer was set up on a desk which had a chair. The computer was plugged into the uninterruptible power supply. Although the evidence discloses that the computer was involved in the control of the air-conditioning system the nature of the physical connection between the computer and the air-conditioning system was not identified by the evidence. The evidence did however disclose that the computer could be interrogated and controlled remotely from two computers located at the premises as well as by technicians of the defendant working off-site.
The reason that the plaintiff was sent to replace the uninterruptible power supply was that on 10 May 2012 a technician from the defendant had discovered that the computer was off-line and had attended the site, climbed into the roof and noted that the existing uninterruptible power supply was faulty. As a temporary measure, the computer was unplugged from the faulty uninterruptible power supply and plugged into the ordinary electrical supply and thus was operational but without the potential for battery backup if the power supply failed. A quotation was then obtained on 15 May 2012 for a replacement uninterruptible power supply and that quotation was accepted the next day by Mr Pattrick. The job of installing the replacement uninterruptible power supply had been allocated to the plaintiff to be carried out on 6 June 2012 but was reallocated to her for 7 June 2012 because she was not at work on 6 June 2012.
Mr Pattrick took her to the storeroom and pointed out the manhole. Mr Pattrick opened the manhole by standing on either a table or a chair and undoing the latch on the manhole cover. Either before or after doing this he went to fetch a ladder and the plaintiff waited until he returned. He returned with a straight aluminium ladder (as distinct from an A frame step ladder or an extension ladder). The ladder was approximately 3 m long. The ladder had feet which could pivot and which had blue rubber on their bases. These pivoting feet can be readily seen in exhibit 8. Mr Pattrick propped the ladder up into the manhole at an angle with its feet on the floor and its upper end resting against the side of the manhole. The evidence of the plaintiff and Mr Pattrick does not permit an assessment of the precise angle at which the ladder was placed. The floor of the storage room in which the ladder was erected was described in evidence as being “vinyl”. The evidence is not specific enough to determine whether it was in fact vinyl or linoleum but it is clear for present purposes that it had a smooth surface expected of either material. The room was not carpeted.
Mr Pattrick then climbed up the ladder. The plaintiff noticed the ladder wobble as he did so and hence held the bottom of the ladder as he finished the climb through the manhole. He disappeared into the roof and the plaintiff started to climb the ladder. She was not carrying the uninterruptible power supply or anything else. Mr Pattrick came back and, when her head was at about the level of the manhole, asked her to turn on the lights for the ceiling cavity. That switch was just above the manhole. There was some difference in the evidence between the plaintiff and Mr Pattrick about the location of the switch. The plaintiff said that the switch was directly behind her as she climbed up and that she turned to her right in order to operate it. Mr Pattrick, on the other hand, said that it was located in the middle of the left-hand side of the frame of the manhole.
Having turned on the switch, she returned to finish climbing the ladder. She climbed up a couple more steps so that she was in the position where she needed to step from the ladder onto the floor of the ceiling space. As she was contemplating how to do that the ladder slipped underneath her. She tried to grab the floor to catch her fall but was unable to hold on and fell down to the floor below, landing on her bottom on the ladder which by that stage was on the floor. There were some tables on the left-hand side as she fell and she had attempted to use them to break her fall. Immediately after landing she was in pain. She called out to Mr Pattrick and he came back to the manhole. However he was stuck inside the ceiling space without any ladder to get down. He called out for help but nobody responded. The plaintiff then got up after a short period and got her mobile phone which she then used to call reception. Other staff of the third party then attended, an ambulance was called and the plaintiff was transported to the Canberra Hospital.
What caused the ladder to fall?
The ladder had its feet on the floor of the storage room and protruded a reasonable distance – between 50 cm and 1 m – into the ceiling cavity beyond the manhole. The feet of the ladder must have lost traction on the floor and slipped a sufficient distance that the top of the ladder fell below the edge of the manhole. The defendant submitted that there were only two reasons why the ladder could have slipped:
(a) that the feet of the ladder were not properly in place;
(b) that the angle from the vertical at which the ladder was placed by Mr Pattrick was too great in the circumstances to permit the feet to retain their traction.
In those circumstances the defendant submitted that the manner in which the ladder was set up by Mr Pattrick must have been the cause of the collapse.
On the other hand, the third party submitted that there were alternative hypotheses consistent with the evidence which would indicate that there was no fault on the part of Mr Pattrick in his setting up of the ladder. The alternative hypotheses were that the feet of the ladder had moved at some stage between Mr Pattrick initially placing the ladder and before the plaintiff commenced climbing the ladder or alternatively that some action by the plaintiff as she was contemplating stepping from the ladder to the floor in the ceiling space had moved the feet of the ladder so that they lost traction.
Neither the defendant nor the third party elicited any direct evidence from the plaintiff to support any of these hypotheses.
There was no evidence that the angle at which the ladder was placed by Mr Pattrick was inappropriate in the circumstances. He clearly managed to climb the ladder successfully. The plaintiff did say that she held the bottom of the ladder after she saw that it wobbled as he went up but she did that simply because that is what she understood she ought to do rather than because of any observation that the ladder was moving in a way that would cause it to lose traction or otherwise become unsafe.
There is no evidence that the plaintiff moved the feet of the ladder from the position in which Mr Pattrick had placed them initially. There was no evidence that she had herself adjusted the position of the ladder between the conclusion of Mr Pattrick’s ascent and the commencement of her own. There was, however, evidence that the ladder wobbled while Mr Pattrick climbed it which led to the plaintiff steadying it herself.
There was no evidence that the plaintiff noticed any movement of the ladder as she ascended it or any movement in the ladder between turning on the light switch just above the manhole and the point where, after climbing further, she was contemplating stepping off the ladder.
In those circumstances all that can be said is that due to the use of the ladder by the plaintiff and possibly also by Mr Pattrick, notwithstanding that the feet of the ladder had sufficient traction to support the ladder while it was being used up to that time, the feet of the ladder had moved by the time that the plaintiff was contemplating stepping from the ladder to a position where they were no longer able to maintain traction. It is not possible to identify any particular aspect of the climbing or use of the ladder which was the immediate cause of that loss of traction. It is not possible to say on the balance of probabilities that the initial placement of the feet of the ladder was such as to create an unreasonable risk of injury arising from the collapse of the ladder.
Liability of the defendant
The plaintiff claimed that the defendant was negligent in that it failed to provide a safe system or place of work, failed to adequately instruct or train the plaintiff and failed to adequately supervise the plaintiff. Counsel for the plaintiff submitted that she had been left to her own devices in determining the system of work to be used for the performance of her tasks on that day, that she was required to use a ladder that was not secured and that she had no relevant training or direction as to the safe method for performing the task that she had to perform.
The defendant made no submissions in relation to its liability. Counsel for the defendant said: “Clearly, the lack of training was in evidence from the plaintiff, and I don’t wish to be heard in relation to negligence on behalf of the defendant” (T 110). In those circumstances I find that the defendant was negligent in that it failed to provide a safe system of work and failed to adequately instruct or train the plaintiff so that she was able to safely carry out the task that was assigned to her. Notwithstanding that ladders are relatively common pieces of equipment and the position may be different for a different type of employee, having regard to the nature of the work to be undertaken and the nature of the qualifications that the plaintiff had I do not consider it reasonable for the defendant to have simply left the plaintiff, without instruction or training, to work out for herself a safe system of work.
Had the plaintiff been provided with a safe system of work including adequate training as to how to manage the task assigned to her then, in my view, the injury would not have occurred. There is no reason why, with adequate equipment or training, it would not be possible to safely access the ceiling space. That could have involved using equipment such as a step ladder which would have permitted access to the ceiling space with a much lower risk of ladder collapse. It could have included instruction to avoid the use of a straight ladder unless it was secured or supported in some way at the bottom or the top.
Although contributory negligence was pleaded, no submissions were made in support of that pleading. I find that the plaintiff was not contributorily negligent.
I therefore find that the defendant breached its duty of care to the plaintiff and is liable to the plaintiff for the damage caused by the accident.
I will deal with the claimed breaches of statutory duty below.
Third party claim
Section 21 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) gives a right to contribution from a person who is also liable for the same damage to the plaintiff. The defendant claimed contribution or indemnity from the third party. The defendant was therefore required to establish that the third party would, if it had been sued by the plaintiff, have been liable to her. The defendant claimed that the third party would have been liable to the plaintiff both in negligence and for breach of statutory duty.
The particulars provided in the amended statement of claim for the purposes of the third-party notice were, in relation to negligence:
(a)The Third Party was negligent through its servant, Mr Pattrick when he failed to hold (secure) the top of the ladder when the plaintiff was ascending.
(b)The Third Party was negligent through its servant, Mr Pattrick when he requested the plaintiff to turn 180° to activate the light while she was on the ladder.
(c)The Third Party failed to provide safe access to the ceiling cavity and thereby placed the plaintiff in a position of peril.
The additional claim of breach of statutory duty based upon the provisions of the Scaffolding and Lifts Regulation 1950 (ACT) (SL Regulation) was also pleaded. The particulars alleged that the breach involved a failure to secure the ladder at its top or base or otherwise stabilise the ladder. I will address the claimed breach of statutory duty separately below.
The third party’s contention was that, having regard to the fact that the plaintiff was an employee of an independent contractor, it owed no relevant duty to her. Further, it submitted that the claim had not been pleaded as an occupiers liability claim and, in any event, there was nothing alleged in relation to “the state of the premises” which would make it liable to the plaintiff: CLW Act s 168.
In my view the claim is appropriately analysed by reference to the obligation of a principal to the employee of an independent contractor rather than as one of occupiers liability. The transactions that occurred between the plaintiff and Mr Pattrick were transactions that occurred for the purpose of an employee of an independent contractor performing work which the contractor had been contracted to perform. Any negligence arose as a result of the actions of Mr Pattrick rather than by reason of “the state of the premises” or “things done or omitted to be done about the state of the premises” as referred to in s 168 of the CLW Act. In those circumstances there are only limited circumstances in which the third party would owe the plaintiff a duty of care: Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1 at [20], [59]; Classic Constructions (Australia) Pty Ltd v Fischetti [2015] ACTCA 51 at [20]-[21]. A summary of the circumstances is provided in the decision of Basten JA (with whom Mason P agreed) in Sydney Water Corporation v Abramovic [2007] NSWCA 248 at [98] which was referred to with approval in Fischetti at [72]-[73].
Had this case simply involved the plaintiff accessing the roof space using a ladder made available by the third party it is clear that there would be no liability of the third party to the plaintiff. That is because, having regard to the type of work undertaken by the defendant at the third party’s premises and the knowledge of the defendant of what was involved in undertaking the contracted work, the third party was entitled to expect that the defendant and its employees would be competent to carry out that work and able to safely access the roof space in order to complete the work. The fact that potentially makes the position less clear is that an employee of the third party, Mr Pattrick, participated in the work to the extent of identifying the location of the manhole, opening it, setting up the ladder within it and ascending the ladder into the ceiling space in order to be able to identify for the plaintiff the location where the work was to be carried out. In those circumstances it cannot in my view be said that there was no duty of care to the plaintiff. Certainly, in relation to those activities which Mr Pattrick carried out, he was obliged to take reasonable care that he did not expose the plaintiff to a foreseeable risk of injury. However, having regard to the relationship between the defendant and the third party, when assessing what reasonable care involved, Mr Pattrick was entitled to assume that the employee of the defendant was reasonably competent to carry out work of the nature that the defendant had been contracted to perform and was properly trained to perform that work safely.
In those circumstances I do not think that any of the particulars of negligence have been made out.
Particular (a): I do not consider that Mr Pattrick was negligent because he failed to hold the top of the ladder while the plaintiff was ascending. The ascent of a ladder into a ceiling space is an activity which the third party and Mr Pattrick were entitled to assume that the defendant and its employees could competently and safely perform unsupervised or, if not, to seek such assistance from himself or others as was necessary. I do not consider that there was a breach of duty in failing to secure the top of the ladder in circumstances where there was no request by the plaintiff to do so and where the plaintiff was in a position to make her own judgment as to whether or not ascent of the ladder in those circumstances was safe.
Particular (b): I do not consider that Mr Pattrick was negligent when he requested the plaintiff to turn to activate the light switch while she was on the ladder. The evidence about the position of the light switch is referred to above. Requesting the plaintiff to turn it on has not been shown to have created any risk to which it was unreasonable to expose the plaintiff. Although turning to operate the switch while ascending the ladder would have taken some care, that action was something which it was reasonable to expect the plaintiff to have been able to manage and to only do if she was able to do so safely.
Particular (c): I do not consider that the third party was negligent by failing to provide safe access to the ceiling cavity. There are two points to be made here. First, the fact that the ceiling cavity had to be accessed through a manhole and by a ladder was not something that, of itself, involved any breach of a duty of care. The defendant was contracted to provide services in relation to a computer located in the ceiling cavity, which it was aware was located in the ceiling cavity and which it had in fact worked on in the past. There was nothing unreasonable in requiring a competent contractor to undertake work in the ceiling cavity which could only be accessed by a ladder. Second, insofar as this allegation might be broad enough to incorporate an allegation that the manner in which the ladder was set up by Mr Pattrick amounted to a breach of duty, the evidence does not establish that it was. As pointed out above, he set it up on its rubber feet and safely used it himself. There was no evidence that indicated that it was not possible to safely ascend the ladder into the ceiling. It was not unreasonable for Mr Pattrick to expect that a competent contractor would either adjust, or seek assistance in relation to, the ladder if she considered that such adjustment or assistance was necessary in order to be able to safely ascend the ladder into the ceiling.
Therefore, so far as the third party claim relies upon an allegation of negligence, as opposed to breach of statutory duty, the claim must fail.
Scaffolding and Lifts Act 1912 (ACT)
The claimed breach of statutory duty
During the hearing I permitted the plaintiff to amend her claim against the defendant to include a claim of breach of statutory duty under the SL Regulation. I also gave leave to the defendant to amend its claim against the third party to pick up that additional cause of action.
The provisions of the SL Regulation that were relied upon were ss 73(1)(b), 73(1)(c), 80(6) and 80(7).
The particulars of the breach of statutory duty in the plaintiff’s claim against the defendant were as follows:
(a)The plaintiff was required to access her place of work by means of a ladder that was not secured at the top or at its base.
(b)The plaintiff was required to access her place of work by means of a ladder in circumstances where no person was stationed at the base of the ladder to prevent it from slipping.
(c)The plaintiff was required to access her place of work by means of a ladder that was not secured or stabilised in any way in circumstances where it was practicable for the ladder to be so secured or stabilised.
(d)The plaintiff was required to access her place of work by means of a ladder that, by virtue of its lack of fixing or stabilisation, was unsafe.
(e)In the circumstances the ladder constituted an unsafe working platform at a height in excess of 1.8 metres.
Particulars (a)-(d) were repeated in the defendant’s claim against the third party. Particular (e) was not.
Relevant legislation
Section 24 of the Scaffolding and Lifts Act 1912 (ACT) (SL Act) provides:
24 Regulation-making power
(1) The Executive may make regulations for this Act.
NoteRegulations must be notified, and presented to the Legislation
Assembly, under the Legislation Act 2001.
(2) The regulations may make provision—
...
(g) relating to—
...
(iv) the way of carrying out building work, excavation work or
compressed air work; and
(v) safeguards and measures to be taken for securing the safety
and health of persons engaged in building work, excavation work or compressed air work, or at or in connection with cranes, hoists, lifts, plant, scaffolding or gear; and
...
...
(4)The regulations may also prescribe offences for contraventions of the
regulations and prescribe maximum penalties of not more than 10 penalty units for offences against the regulations.
The Dictionary to the SL Act defines “building work” and “gear” as follows:
building work means work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning or demolishing that, when done in relation to a building or structure, is done at or adjacent to the site of the building or structure and that, when done in relation to a ship, is done on or adjacent to a ship in dock or on slips.
gear includes ladder, ... or other equipment used in connection with ... building working, excavation work, or compressed air work.
Where the terms “building work” and “gear” are used in the SL Regulation those terms have the same meaning as the defined terms in the SL Act: Legislation Act 2001 (ACT) s 148.
The relevant parts of the SL Regulation are as follows:
6
(1)If the obligation to observe any of the provisions of this regulation is not by this regulation specifically imposed on any person it is the obligation of every person who directly or by his or her servants or agents—
(a) carries out any building work, excavation work or compressed air work; or
...
to comply with the provisions of this regulation.
(2)A person must not directly or by his or her servants or agents use any crane, lift, hoist, scaffolding, plant or gear, unless it has been classified, designed, constructed, erected, set up, built or set or placed in position, and installed, and unless the person uses and maintains it, in accordance with the provisions of this regulation.
7
Every person must use the safeguards given and provided in accordance with this regulation and a person must not interfere detrimentally in any way with the use of the safeguards by any other person, nor with the use of any safeguard method or process.
...
Part 5Safeguards and measures to be taken for securing the safety and health of persons engaged in building work
Division 5.1 General
73
(1)Any person who directly or by his or her servants or agents (including every independent contractor from time to time engaged in that work) carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in the building work and for this purpose, without limiting the generality of the foregoing, the person shall—
...
(b)provide and maintain safe means of access to every place where any person
has to work at any time; and
(c)provide means by fencing or otherwise for securing the safety of any person
working at a place from which the person would be liable to fall a distance of more than 6 feet; and
...
Division 5.2 Constructing, erecting, adding to, altering, repairing, finishing, painting and cleaning buildings and structures
...
Provision and use of ladders and stepladders
80
Definitions
(1) In this section:
ladder—see section 142.
stepladder—see section 142.
Design and construction
(2)Every ladder and every stepladder used for any purpose covered by this regulation shall be designed and constructed as prescribed by this regulation.
To be provided and maintained
(3)Any person who directly or by his or her agents or servants carries out any building work shall provide and maintain in place during working hours the ladders that are necessary to provide safe means of access to all floor levels and to all places where any person has to work until the time that temporary or permanent stairways are completed and are available as such safe means of access.
Placing of ladders
(4) Ladders shall be placed so that—
(a)each side rail or stile has a level and firm footing and the top rest for each
side rail or stile is level, reasonably rigid and of adequate strength to support the maximum applied load; and
(b)the side rails or stiles are not supported by boxes, loose bricks, or other loose
packing.
...
To be securely fixed
(6)Every ladder shall so far as practicable be securely fixed so that it cannot move either from its top or from its bottom points of rest.
(7)If it cannot be so securely fixed it shall where practicable be securely fixed at the base or if such fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent slipping.
...
Angle of ladders
(17)Every ladder shall, if possible, be used at such an angle that the horizontal distance from the top support to the foot of the ladder is equal to 1/4 of the length of the ladder.
...
Part 16 Miscellaneous and penalties
General penalty
164
(1)When any matter or thing is by this regulation required, directed or forbidden to be done, or if any authority is given by this regulation to any person to require, direct or forbid any matter or thing to be done, and the matter or thing so required or directed to be done remains undone, or the matter or thing so forbidden to be done is done, in every such case every person offending against the requirement, direction or prohibition, commits an offence against this regulation.
(2)Any person guilty of a breach of this regulation shall, if no other penalty is expressly provided in this regulation for the breach, be liable to a penalty not exceeding $100.
Which provisions could apply in the circumstances?
It is necessary to address the operation of each of the provisions relied upon to determine which might arguably apply in the present circumstances.
Section 73 could readily apply to the third party because the section extends to a person who carries out building work by an independent contractor. The present form of the section, which extends it to work carried out by an independent contractor, resulted from an amendment to the SL Regulation after the decision of the High Court in H C Buckman and Son Pty Ltd v Flanagan (1974) 133 CLR 422 (‘Buckman’): see Carton v Rainbow Plumbing and Drainage Pty Ltd [2013] ACTSC 267 at [52].
Section 73(1)(b) requires the provision of a safe means of access to every place where any person has to work at any time. The obligation is limited to a person carrying out “building work”.
Section 73(1)(c) requires either fencing or some other means for “securing the safety of any person working at a place from which the person would be liable to fall a distance of more than 6 feet”. It was not contended that fencing was relevant in the present case. In my view the terms of the regulation do not apply to a person who is in transit up and down a ladder to a place where they are to undertake work. Having regard to the terms of the paragraph it appears to cover a person undertaking substantive work rather than merely obtaining access to a place at which such substantive work is to be carried out. Access (which includes egress: Stojkoski v Belconnen Concrete Pty Ltd [2013] ACTSC 13 at [92] (‘Stojkoski’)) is dealt with in s 73(1)(b). It would not be a reasonable interpretation to suggest that as a result of this paragraph a ladder either needed to be fenced so as to prevent a fall or that some other means, apart from the ordinary use of the ladder, should be put in place to prevent a person from falling from the ladder as the person obtained access to a place in order to undertake work. That interpretation does not, of course, detract from any of the other detailed provisions relating to the use of ladders in the SL Regulation. In particular it does not detract from the obligation in the preceding paragraph to provide “safe means of access”. As a consequence I am not satisfied that s 73(1)(c) of the SL Regulation has any application in the present case.
The interpretation of s 80 is a little more complex. Section 80(3) identifies the persons to whom the obligation in the section applies. The balance of the provisions, including, relevantly, ss 80(6) and 80(7) do not identify those persons. As a result, in order to determine the scope of their operation it is necessary to refer to s 6 which imposes an obligation to comply upon “every person who directly or by his or her servants or agents” carries out the building work: s 6(1); and imposes a prohibition on a person “directly or by his or her servants or agents” using “gear” (which includes a ladder) unless it is used in accordance with the provisions of the SL Regulation: s 6(2).
In Fatur v IC Formwork Pty Ltd (2000) 155 FLR 70 (‘Fatur’), Miles CJ noted at [26] that s 6 of the SL Regulation had not been amended at the time s 73 was amended so as to extend its operation to persons who are acting not by servants or agents but instead by independent contractors. Notwithstanding the passage of 15 years since his Honour drew the attention of “the legislature … the Law Reform Commission or indeed ... anyone else interested in industrial safety” to the fact that amendment of s 6 had been overlooked, the executive and the legislature have not amended the terms of the section.
As a consequence, the obligations in ss 80(6) and 80(7) apply to a different, narrower group of persons than the obligations in s 73. There is no obvious rationale for this difference in coverage. I will return to this issue below.
The two particular provisions relied upon are ss 80(6) and 80(7). Section 80(6) of the SL Regulation needs to be considered in the context of the section as a whole and, in particular, s 80(7). Section 80(6) requires “so far as practicable” that a ladder be securely fixed so that it cannot move either from its top or bottom points of rest.
Dealing first with the position of the defendant, where, as in this case, a ladder is to be used to obtain temporary access to a ceiling space through a manhole from an otherwise usable room, in my view it would not be and was not in this case practicable to have it securely fixed to prevent movement at the top and bottom points of rest. As a consequence, this paragraph does not apply and instead the obligation in s 80(7) applied. That requires either secure fixing at the base or, if that is impracticable, a person stationed at the base to prevent the ladder slipping. In my view it was clearly impracticable to securely fix the base of the ladder because it was being used for temporary access from a room where there were no appropriate fixing points on the floor and where it would be impracticable to securely fix it to the floor for its temporary use. As a consequence the obligation was to have a person stationed at the base of the ladder to prevent it slipping.
Dealing next with the position of the third party the issue is whether or not the obligations in s 80(6) or (7) applied to the third party. Those obligations would only apply to the third party if the third party itself was “carrying out building work” or if the defendant was the “servant or agent” of the third party. I will come to the issue of whether or not the replacement of the uninterruptible power supply constituted carrying out building work below. In my view, the terms of s 6 of the SL Regulation mean that the third party was not subject to the obligations in s 80. By setting up the ladder and climbing up in order to identify the location of the power supply that needed replacement, Mr Pattrick was not “carrying out” building work and hence the third party was not “directly” carrying out such work. Next, it is clear that neither the defendant nor the plaintiff was the “servant” of the third party. Finally, in my view neither the defendant nor the plaintiff was the “agent” of the third party because neither was an agent in the ordinary legal sense of that term and the use of the term in the SL Regulation is not such that it extends to independent contractors: Buckman at 427-429, 433. As a result s 80(6) or (7) did not impose an obligation on the third party.
Thus, if the work being undertaken was “building work”, the obligations that applied in the present case were:
(a)in relation to the defendant, the obligations in s 73(1)(b) and s 80(7);
(b)in relation to the third party, the obligation in s 73(1)(b).
Was the work “building work”?
Whether or not the work being undertaken, namely accessing the roof space in order to replace the uninterruptible power supply which was connected to the computer controlling the air-conditioning system, amounted to “building work” depends upon whether it was work in “altering”, “repairing” or “equipping” a building or structure. Clearly enough the air-conditioning system is part of the building or structure. If the computer is considered to be part of the air-conditioning system then replacement of the uninterruptible power supply which supplied power and ensured the continuity of power to that computer would involve either repairing or equipping the building or structure. On the other hand if the computer is considered simply to be a computer within the building which is separate to the air-conditioning system then, even though it is somehow electronically connected to that system so that it can control it, that is not sufficient to make work on the computer work in altering, repairing or equipping the building or structure.
The computer sat, as any ordinary desktop computer would, upon a desk that had a chair in front of it. The means by which it was connected to the air-conditioning system was not disclosed. The evidence of Mr Pattrick when cross-examined by counsel for the defendant was as follows:
Thank you, your Honour. Mr Pattrick, can I just ask you about the set up in the attic? You gave some evidence yesterday about there being a computer in the attic and a desk and a mouse, and those types of items. And that computer’s sole purpose was to control the air conditioning system, is that right?---Correct.
And it was able to be remotely controlled by you and other parts of the club, is that right?---Yes, there were two of us who had access to it in the club.
And also remotely off site, is that right?---I believe so.
And so that computer was integral to the running of the air conditioning system in the club?---Yes, yes.
And your understanding was the UPS being an uninterrupted power source was required, so there was no breakdown in the running of that service?---That’s right.
In cross-examination by counsel for the plaintiff Mr Pattrick was asked how often technicians from the defendant were required to venture into the ceiling space to access the computer. Mr Pattrick said that “[i]t wouldn’t have been more than once or twice a year”. There was no evidence that any other person was required to physically access the computer at any other time.
In relation to whether or not in those circumstances, replacement of the uninterruptible power supply was building work, the parties referred me to the decisions in Buckman; The Uniting Church v Takacs [2008] NSWCA 141 (‘Takacs’) and Stojkoski. Only Takacs deals with the issue. In that case the New South Wales Court of Appeal found that the measurement of a roof for the purposes of quoting on a painting job was work “in” painting because it had a sufficiently close connection to actual painting for the quote to be held to be work “in” painting.
In my view the relevant element of the definition is “repairing” rather than “altering” or “equipping”. Even though what was involved was the replacement of a component of the computer system, namely the uninterruptible power supply, that is sufficient to fall within the scope of a repair to the system. What must be established is that the plaintiff was carrying out “work in ... repairing ... done in relation to a building or structure”. The phrase “in relation to” is not a broad connecting phrase as would be the case in other contexts but is, in the context of the definition, designed to draw a distinction between those activities undertaken on a building as opposed to those activities being undertaken on a ship which is also dealt with in the definition. Thus the question is whether what was being done was “work in … repairing … a building or structure”.
Clearly there must be a distinction between things which are part of the building or structure and things which are merely within the building or structure. In my view it is appropriate to apply the test applicable in determining whether an item is a fixture, which is part of the land, or a chattel, which is not. While this is, in part, a question of physical connection it is also a question of intention. So far as physical connection is concerned it is likely that there was a physical connection both to the computer network and the electricity supply. It is likely that both of those would have been able to be disconnected in a similar manner to any other desktop computer. There is no evidence that there was any hardwired connection to the air-conditioning system or other physical integration of the computer into the air-conditioning system. However the computer was physically located in a position where it was only useful as a part of the air-conditioning system and where its continued operation was essential for the operation of the air-conditioning system, hence the need to replace the uninterruptible power supply. Thus while the physical connection between the computer and the building is likely to have been minimal, the computer is likely to be treated as a part of the air-conditioning system. If one asks whether or not the computer would be treated as a fixture, having regard to the evidence as to its sole purpose and the fact that it was integral to the running of the air-conditioning system, then, even though it could have been disconnected from that system, I would regard it as a fixture and hence part of the building: see P Butt Land Law (6th edition) at [303]-[311]. Although the question appears to me to be finely balanced I find that the computer and hence the uninterruptible power supply through which it was connected to the electrical circuits in the building were a part of the building and hence that the work done by the plaintiff was work “in repairing” the building. The effect of that conclusion is that the SL Regulation and, in particular, s 73 could apply because what was being carried out was “building work” within the meaning of the SL Act.
Was there a breach of s 73(1)(c)?
In Fatur at 75 Miles CJ said:
21.Under reg 73 the duty is cast upon any person who carries out building work. The duty is directed at the protection of persons engaged in the building work. The exact scope of the duty as prescribed by reg 73(2) is to provide and maintain safe means of access to every place of work in which any person has to work at any time. There is nothing that restricts the scope of the duty to what is practicable or reasonable. A means of access is unsafe if it is a possible cause of injury to anybody acting in a way that a person may be reasonably expected to act in circumstances which may reasonably be expected to occur: Trott v W E Smith (Erectors) Ltd [1957] 1 WLR 1154; Brown v National Coal Board [1962] AC 574 at 596 per Lord Denning.
This passage was adopted by Refshauge J in Stojkoski at [95].
The ladder was not secured at either end and was not stabilised when it was used by the plaintiff by a person standing at its base. Having regard to the test in Fatur I am satisfied that the means of access to the ceiling space was unsafe. That is because it was a possible cause of injury to a person using the ladder in a manner in which she could reasonably be expected to act, namely, because of the possibility of the feet of the ladder losing traction as a result of it being moved during the course of its ordinary use. As a consequence I am satisfied that both the defendant and the third party failed to comply with s 73.
My conclusion is therefore that both the third party, acting through its independent contractor the defendant, and the defendant, acting through its servant the plaintiff, breached s 73 of the SL Regulation when they carried out work in repairing the computer system in the ceiling space.
Was there a breach of s 80(7)?
In the light of my conclusions set out above it is apparent that the defendant breached s 80(7) by failing to station a person at the base of the ladder in order to prevent it slipping.
Damages
Facts
Following the accident the plaintiff was conveyed to the Canberra Hospital. Various investigations were undertaken and she was discharged into the care of Brenton Denman-Murray, her future husband, who took her home. She suffered soft tissue injuries but the most significant longer term problem has been the symptoms associated with her lower back. An MRI scan of her thoracic and lumbar spine revealed compression fractures of the superior endplates of the thoracic spine at T3 and T4.
She did not return to work for the defendant. She made a workers’ compensation claim and had the benefit of a significant regime of rehabilitation funded by the defendant’s workers’ compensation insurer. The regime of rehabilitation involved numerous consultations with her general practitioner, chiropractic treatment, treatment by a psychologist between June and December 2012, remedial massage and a consultation with an orthopaedic surgeon.
That regime continued quite intensively until the end of 2012. The plaintiff was married in February 2013 and, after three weeks travelling in Europe, in March 2013 reported to her general practitioner that she felt much better in general and only suffered back pain and stiffness when bending, lifting heavy objects or sitting for more than one hour. During 2013 the treatment regime lessened. At the beginning of 2013 the workers’ compensation insurer requested that she go through a process of a graduated return to work. She commenced in a volunteer administrative position with MS Australia in May 2013 but she found that she could not sit for significant periods of time. As a consequence, in consultation with the rehabilitation provider engaged by the workers’ compensation insurer, she commenced a process of retraining. In July 2013, with the assistance of the workers’ compensation insurer, she commenced a certificate IV in fitness at the Canberra Institute of Technology. She completed that course in December 2013 and then commenced working in the fitness industry. In the summer of 2013/2014 she worked at Samsara, a gymnasium. At the end of that she worked for an organisation referred to in the evidence as A’Hern doing personal training and then for a gymnasium called Fernwood doing work on the floor of the gymnasium as well as one-on-one sessions with clients. The work was satisfactory because she kept on her feet and kept moving and that assisted with her pain management. She was able to avoid exercises that she recognised would aggravate her back. However she found the fitness industry quite fickle and hard to make a career out of. In about September 2014 she stopped working as an employee and attempted to commence her own business. That attempt was not successful and she abandoned it in January 2015. She had then planned to go travelling for a significant period but because of the pendency of this case only ended up travelling for a short period of time, being two weeks in July 2015.
The plaintiff married Mr Denman-Murray in February 2013. However in September 2015 she moved to Melbourne to live with her mother, her husband remaining in Canberra. Mr Denman-Murray’s evidence was that one of the causes of the difficulties with the relationship between him and his wife has been the difficulties caused by the accident.
Since 2013 her back pain has been manageable. She had adapted her lifestyle so as to avoid aggravating her pain. In terms of her psychological state, she still has some anxieties about particular activities which she attributes to her experience in the accident and subsequently. Presently she has some limitations on her capacity to sit down for long periods depending upon the particular circumstances. She is able to exercise with only modest limitations on the bending or stretching that she can do. She suffers some difficulties with household activities such as vacuuming and washing up. She finds it difficult to drive for long distances. She does not use a deep trolley at the supermarket. She performs yoga in order to maintain her strength and manage her back. She does not take any medication on a regular basis.
The plaintiff’s evidence about her experience of back pain, her difficulty in sitting for substantial periods and the need to undertake regular exercise activities in order to avoid a recurrence of her pain was not challenged in cross-examination.
The reports of six medical experts were tendered. The earliest of them was from November 2013, almost 18 months after the accident. The plaintiff tendered the report of Dr Gautam Khurana, a consultant neurosurgeon, dated 27 November 2013, the report of Dr David Fitzgerald, a consultant occupational physician, dated 18 December 2013, the report of Mr Tom Sutton, a psychologist, dated 15 July 2014 and the report of Dr Leon Le Leu, an occupational physician, dated 18 August 2015. The defendant tendered the report of Dr Geoffrey Stubbs, an orthopaedic surgeon, dated 28 January 2014. The third party tendered the report of Dr Anthony Smith, an orthopaedic surgeon, dated 3 February 2015.
The experts recorded that apart from minor endplate fractures at T3 and T4 there were minimal signs of ongoing disabilities. There was, however, no challenge to the plaintiff’s complaint of back pain and the minor limitations, needed to avoid aggravation, imposed upon what she can do. Her low back pain is now intermittent and controlled by avoiding aggravating activities. She is not routinely required to take pain relief medication. She has some relatively minor restrictions requiring her to avoid activities which aggravate her back pain, namely, driving for long periods, using large deep shopping trolleys, vacuuming and sitting on hard chairs for a significant period of time. She does not require any form of psychological treatment arising from the injury. Dr Le Leu indicated that, having regard to her symptoms in her lumbar spine, she should avoid lifting, carrying, pushing or pulling greater than 10 kg and repetitive or sustained back bending or twisting.
To the extent that there is any difference between the recent report of Dr Le Leu and the report of Dr Smith, I prefer the report of Dr Le Leu as that report is consistent with the oral evidence given by the plaintiff of ongoing pain which was not challenged in cross-examination.
The plaintiff gave evidence that she has not yet determined what direction to take in her career. In particular, she has not yet determined whether or not to attempt to return to the IT industry. It appears that she will not return to the fitness industry having regard to her experience of it.
General damages
The plaintiff suffered a traumatic fall. She was very fortunate not to have suffered greater injuries than she did. She was significantly incapacitated for a two week period and then underwent a significant period of rehabilitation in order to control the back pain from which she suffered. She lost the opportunity to pursue a reasonably well paid full-time job in the IT industry which would have given her a solid grounding for a long term career in that area had she wished to pursue such a career. She has suffered a period of over three years where to a greater or lesser extent her life has been significantly affected by the need to manage her back condition so as to permit her back to recover sufficiently that she can get on with the rest of her life. While it is difficult to disentangle the effect of the accident from other events and changes in her life, the accident and its sequelae have been at least a contributing factor to the deterioration in her relationship with her husband. In my view an appropriate award of general damages is the sum of $70,000 with $55,000 of that amount attributed to the past. That gives an interest award of $3,666 (3.333 x $55,000 x 2%).
Past economic loss
In relation to the past, the payments made by the workers’ compensation insurer in the period 7 June 2012 until 21 October 2014 amounted to $93,255. That amount is a gross amount and hence if an award is based on it then it also includes the Fox v Wood component of damages. The plaintiff submits that an additional amount should be awarded for the following reasons:
(a)Compensation payments under the Workers Compensation Act 1951 (ACT) were set at 65% of her pre-injury earnings after the first 26 weeks of incapacity and the plaintiff did not commence paid employment in the fitness industry until the end of 2013. As a consequence the plaintiff submits that she is entitled to top up payments calculated at the rate of $239 per week to cover the difference between her full pre-injury earnings and her compensation payments during the 12 month period in which the payments were made at the 65% rate and during which she was not earning any amount from her fitness industry work.
(b)The plaintiff submits that she has continued to suffer restrictions that were, in part, productive of her financial loss in the period since October 2014 when the workers’ compensation payments ceased. For this period a claim is made at the rate of 50% of her pre-injury earnings.
The defendant submitted that the amount of $93,255 was appropriately awarded by way of a buffer for the whole of the period up to judgment having regard to the fact that the plaintiff’s income in the financial year ending 30 June 2012 was $28,413 and that by the time the plaintiff saw Mr Sutton in July 2014 there were no emotional impediments to her resuming her previous IT career.
The third party submitted that the plaintiff’s decision not to seek employment after January 2015 was in fact the reason for her economic loss during that period rather than the injury which she had suffered.
Had the plaintiff not been injured then it is likely that she would have maintained her employment with the defendant or equivalent employment in the IT industry. While the plaintiff did not have a long history of employment or a history of steady employment, she had demonstrated the capacity to get jobs including the job that she had with the defendant. The job with the defendant was well remunerated for a person of her age and experience. As a result of the accident, she was put in a position where she was unable to return to that job or, indeed, that form of employment. Instead, she was forced to change the direction of her career in order to find employment which both maintained her physical condition and avoided activities which aggravated her back pain.
I accept the methodology contended for by the plaintiff, namely, that an award should be made based on the gross amounts paid by the workers’ compensation insurer.
For the period from December 2012 until December 2013 when the plaintiff was receiving only 65% of her pre-injury wages and was not receiving any additional income I consider that she is entitled to an additional award of damages. The difference between the net income received by the plaintiff as a result of workers’ compensation payments and the net income that she would have received had her employment continued is approximately the amount of $239 per week contended for by the plaintiff. That amount over a 12 month period is $12,428.
In relation to the period after she commenced working in the fitness industry in December 2013, the evidence from the payment summaries in exhibit 2 relating to the financial years ending 30 June 2014 and 30 June 2015 disclosed that the plaintiff received gross payments of $8,091 over the 14 months up until January 2015 when she ceased attempting to obtain income from the fitness industry being comprised of $5,114 in the seven months December 2013 to June 2014 and $2,977 in the seven months from July 2014 until January 2015. This gives an average of $168 per week during those months in the 2013-2014 financial year and $98 per week in those months in the 2014-2015 financial year. Having regard to the other income received during those financial years those amounts were equivalent to a net income of approximately $119 and $98 per week respectively. That means that her loss compared with her pre-accident income would be $120 ($239-$119) per week for the seven months in the 2013-2014 financial year, giving a total net loss of approximately $3,640. For the seven months in the 2014-2015 financial year the net loss would be $141 ($239-$98) per week, giving a total net loss of $4,277.
The period since January 2015 is somewhat more difficult. The plaintiff did not actively pursue employment or make a decision about her future course of employment. She expressed a degree of frustration at the fact that the proceedings were not concluded prior to the hearing before me. Her evidence was that she had intended to travel overseas for a longer period of time but chose not to do so because of the processes and uncertainties associated with the pending litigation. Neither the defendant nor the third party has pleaded that the plaintiff has failed to mitigate her loss. I do not accept the submission that any loss during this period was causally unrelated to the accident. The plaintiff would not have been in a position of having to make a decision about which area of endeavour to deploy her earning capacity if it was not for the accident. In my view the plaintiff is correct to submit she had an earning capacity of approximately 50% of her previous earning capacity. That is consistent with her capacity in the fitness industry which was frustrated (and hence productive of a greater loss of earnings) by her inability to obtain more work in that industry. During the period from January 2015 it is therefore appropriate to make an award of damages equivalent to 50% of her pre-injury wages for the period, namely, $16,711 (39 weeks at $857 per week x 0.5).
The various components of damages for past economic loss are therefore $93,255, $3,640, $4,277 and $16,711 giving a total of $117,883.
Although I have assessed damages for the period since January 2015 in my view some adjustment to the damages awarded for the past is appropriate to take account of the uncertainties involved in an assessment of what would have happened but for the accident. In favour of some discount are the plaintiff’s youth and her short employment history which demonstrated a number of changes of employment. Her youth is relevant because it leads to the possibility that she may not at that stage of her life have been committed to immediately settling into consistent employment. She may have been willing to change employment as she had done prior to employment with the defendant or may have made other decisions, such as a decision to take time off and travel. There is at least a significant chance that the changes in perspective on life identified by Mr Sutton may have occurred in any event. On the other hand there is also the possibility that she may have worked continuously during the period and, either by remaining in the employment of the defendant or by changing jobs, may have increased her income over the period. On balancing these factors I consider it appropriate to reduce the award of damages for the past by 10% largely because, having regard to her age and employment history, there was a significant chance that she would not have continuously deployed her earning capacity during the period. That reduces the amount for past loss of income to $106,095.
The difference between her entitlement and the amount already paid by the workers’ compensation insurer is therefore $12,840. Interest on the unpaid amount of the loss is not simple to calculate but I will make an award of $270, calculated on the assumption that the loss occurred in the period from February 2015 until the date of judgment.
Future economic loss
In relation to the future the position is that the plaintiff has made no decision about what employment she should seek. The evidence, in particular the report of Mr Sutton, indicates that the plaintiff is, as a result of getting older, reconsidering some aspects of her approach to life. That is something which may have happened in any event but on the other hand may have been precipitated by the adversity of the accident.
By reason of her training and experience as well as her physical capacity she has the capacity to earn income in a range of areas. However, having regard to her less than consistent employment history following the accident there is the likelihood that, even if she were to return to the IT industry, it will be some time before she is able to achieve the level of income that she was being paid by the defendant. If she was to continue in the fitness industry it is likely that she would find it difficult to achieve the level of income that she had prior to the accident for a significant period. Finally if she were to embark on a new area of employment there is likely to be a significant period before she would be able to achieve an income equivalent to that which she was able to command prior to the accident.
The uncertainties are such that any precision in the calculation is not possible and an award by way of a buffer is appropriate. In my view an amount equivalent to a loss of $300 per week inclusive of superannuation for a period of 18 months is appropriate, namely, $23,400. That recognises that the plaintiff has an existing earning capacity which she can commence to deploy but that there may be a period during which she is increasing the amount that she works as well as a period which may be necessary for her to achieve the levels of income which were available prior to the accident.
Out-of-pocket expenses
Past out-of-pocket expenses are agreed at $24,463. In relation to future out-of-pocket expenses an amount of $2,000 is claimed as a buffer. The defendant contended that no amount should be awarded having regard to the fact that the plaintiff no longer takes medication. In my opinion some allowance should be made for the possibility of a requirement for over-the-counter medication or some minor treatment. I will therefore make an award of $1,000 for future out-of-pocket expenses.
Griffiths v Kerkemeyer
There was little difference between the submissions of the parties in relation to Griffiths v Kerkemeyer damages for the past. The rate of $35 an hour was agreed. The plaintiff contended for an amount of $11,970 based on an amount of 28 hours per week for the first two weeks, followed by seven hours per week for the next six months and then followed by two hours per week for the 12 months after that. The defendant contended for an amount of $10,000. In my view an award of $10,000 is appropriate. That is approximately equivalent to reducing the number of hours in the six months and one year periods after the accident by one hour each, which I consider to more accurately reflect the amount of assistance required.
No amount was claimed for the future.
Superannuation
Superannuation is claimed at 11% of the net past economic loss. For the purposes of this calculation the whole of the net economic loss needs to be taken into account not simply those amounts in excess of the workers’ compensation payments made. On the other hand it should be calculated by reference only to the net loss rather than by reference to an amount which includes, in effect, the Fox v Wood component. That amount is not readily disclosed by the evidence. In order to arrive at the figure I have reduced the amount of economic loss for the purposes of this calculation by $10,000 from $106,095 to $96,095 which represents approximately the amount of tax paid on the workers’ compensation payments in the 2013 to 2015 financial years. An award at 11% of this amount is $10,570.
As indicated above in relation to the future, having regard to the manner in which I have assessed the economic loss, namely by way of a buffer which is inclusive of superannuation, no separate award is appropriate.
Summary of damages
The components of the award of damages are summarised in the following table.
General damages $70,000 Interest on past component ($55,000) $3,666 Income loss – past $106,095 Interest on past income loss $270 Income loss – future $23,400 Griffiths v Kerkemeyer – past $10,000 Griffiths v Kerkemeyer – future $0 Out-of-pocket expenses – past $24,463 Interest on past out-of-pocket expenses $0 Out-of-pocket expenses – future $1,000 Superannuation $10,570 Award of damages $249,464
Apportionment
Section 21 of the CLW Act requires that the contribution be “an amount that the court considers just and equitable having regard to the extent of the contributory’s responsibility for the damage”. That assessment must take into account the degree of departure from the relevant standard of care as well as the relative importance of the acts of the parties in causing the damage. In my view the defendant must bear the majority of the responsibility for the damage. It was the entity obliged to provide the plaintiff with a safe system of work and to provide her with training necessary in order to be able to safely carry out the job. There was nothing necessarily unsafe in the circumstances in which she found herself as a result of the assistance provided by Mr Pattrick of the third party. Further I have found that the defendant breached its obligations under s 73 and s 80 of the SL Regulation. I have found that the third party did, however, breach its obligation under s 73 of the SL Regulation. In my view an appropriate contribution from the third party is 25%. This gives an amount of $62,366.
Orders
The orders of the Court are:
1.Judgment be entered for the plaintiff against the defendant in the sum of $249,464.
2. The usual order as to interest.
3. Judgment be entered in favour of the defendant against the third party in the sum of $62,366.
4. The defendant is to pay the costs of the plaintiff.
5. The third party is to pay the defendant’s costs of the third party claim.
6. Orders 4 and 5 do not take effect for a period of 14 days and if a party affected by either order notifies my associate and the other affected party within that period that the party wishes to be further heard in relation to costs then the relevant order does not take effect until further order of the Court.
| I certify that the preceding one hundred and five [105] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 30 October 2015 |
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