Miller v G C Miller & Scons
[1988] TASSC 114
•9 December 1988
Serial No B47/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: King v JMK Constructions Pty Ltd [1988] TASSC 114; B47/1988
PARTIES: KING, Stephen John
v
JMK CONSTRUCTIONS PTY LTD
FILE NO/S: 1231/1986
DELIVERED ON: 13 December 1988
JUDGMENT OF: Cox J
Judgment Number: B47/1988
Number of paragraphs: 16
Serial No B47/1988
List "B"
File No 1231/1986
STEPHEN JOHN KING v JMK CONSTRUCTIONS PTY LTD
REASONS FOR JUDGMENT COX J
13 December 1988
The plaintiff sues the defendant company for damages for personal injuries sustained by him as the result of a fall from a timber framework on which he was working while employed by it. The defendant company had been engaged to erect the form work for a multi–storied car park in Hobart and employed some 14 carpenters including the plaintiff.
On the 8 January 1986 the plaintiff, who had been employed by the defendant company for about seven months, was working on the ramp of level 6 to level 6A at the car park. He had put in place a series of long joists over the main beams or bearers which sit on an adjustable metal framework. These long joists are of 4 x 3 inch oregon timber about three metres in length and once in place around their supporting column are covered with plywood in preparation for a concrete pour. Two of the long joists abut the narrower sides of this column which measures 1200 x 400 millimetres. The space between these two long joists on the 1200 millimetre side face of the column is covered with a framework of four short or "trimmer" joists also measuring about 1200 millimetres in length. The two outer short joists are placed immediately adjacent to the long joists and two inner short joists are placed at a distance of about 300 millimetres from each other and from the two on each side of them. They are all supported at their head by a bearer erected flush with the side face of the column and by the main bearer which supports the long joists. The midline of this main bearer is at a distance of approximately 610 millimetres from the column and there is in consequence an overhang by the short joists of about 450 millimetres of their total length of 1200 millimetres. This space is also covered with plywood in readiness for the concrete pour. Unless the short joists are adequately fixed in place it is obvious that they will not support the weight of a man's body if he happens to stand on them, or on one of them, on the other side of the main bearer.
The plaintiff's case is that he had the misfortune to stand on one or more of the overhanging sections of the short joists as the result of losing his balance while working in the near vicinity, that as a result two of the joists collapsed under him, that he fell to the concrete floor seven feet below and that the injuries he thereby sustained were caused by the defendant's negligence in not ensuring that the short joists had been securely fixed. He claimed that he should have been instructed in a safe method of constructing this section of form work, being required to so construct it and being supplied with the means of doing so.
The method the plaintiff used was to skewnail the short joists to adjacent long joists in the case of the two outer short joists and in the case of the two inner ones to likewise skewnail them into the wooden bearer at the side face of the column and at the main bearer. All four joists were 4 x 3 inch oregon and the two central ones were skewnailed with one 2 inch nail at each bearer.
Another method commonly used by the defendant company's employees on this site was to construct a module to fill the gap by nailing a back board with 3 inch nails into four short joists measuring 4 x 2 inches, rather than 4 x 3 inches, and then through nailing the two side joists to their adjacent long joists with three inch nails. Although the two central joists would not be attached to a bearer they would be affixed to the back board. If such a fabricated section is used with through nailing to the long joists the evidence indicates that "this will stop the short joists tipping" (per agreed report of Department of Labour and Industry Inspector, Fish).
One of the directors of the company, Mr Carroll, regarded this method as a desirable one and instructed some of his employed carpenters to use it. He was unable to recall whether he had given instructions to the plaintiff to use it and as the plaintiff denied receiving such instructions, and I have no reason to doubt him, I find that he was not so instructed even though he was aware that other carpenters were employing it.
On the day of the accident the plaintiff constructed the form work near the column using his own method. I find that he asked another director of the defendant company, Mr O'Connor, who was working nearby and who placed a metal prop under the bearer alongside the column side face, to pass him some short joists and that Mr O'Connor passed him four short joists measuring 4 x 3 inches. I find that Mr O'Connor, who was not called to give evidence, must have realised the purpose for which these joists were required and must have realised that the plaintiff was not using the module method which the defendant company preferred but acquiesced in the plaintiff adopting his own method. Having completed this form work the plaintiff then proceeded to lay plywood over the adjacent long joists and to tack down each corner, the last one being alongside the short Joist section. To do this he knelt on the short joists at an angle with his back to the column reaching out to and attaching the plyboard to the extremity of the long joist nearest him. He then stood up and while facing in towards the column with one foot on the short joist immediately next to that long joist and his left foot on the next short joist, and while on the stable section between the main bearer and the column, he lost his balance. He tried to reach forward to grab a reinforcing rod protruding from the column but failed in this attempt and the next thing he can recall is lying on the concrete floor below. Somehow in the course of the fall the two central short joists had broken away from the bearers and fallen to the ground.
In these circumstances I am asked to infer that the plaintiff stepped backwards onto one or both of the overhanging sections of the central short joists which had failed to support his weight and given way causing him to fall. Alternatively, I am asked to infer that he somehow fell on to those overhanging sections and that his further fall to the ground was caused by their giving way.
The plaintiff can shed little light on how he fell or what caused him to fall. On the night of the accident he made a statement to the following effect:
"It was nearly morning break time when I finished, so I laid a sheet of form ply in position on the Collins Street side of column 3B. I stood on the trimmer joist to pin the sheet down. I turned around and lost my balance; in attempting to regain my balance I must have put my foot on the cantilevered section of the trimmer joists, they gave way under my weight, pulling out the skewnails and I fell to the level below."
Three weeks later in a statement to the Department of Labour and Industry Inspector he was asserting as a fact:
"When I stood up I lost my balance placing my foot on the outside of the short joist causing the timber to cantilever making me fall to the next level below."
In cross–examination however this exchange occurred:
"Q When you lost your balance or when you started to lose your balance what was the next thing that you did? What was the first thing that you did?
A I tried to reach for the reinforcing coming out of the column.
Q Yes, did you manage to reach it?
A No.
Q And what happened then?
A I was on the ground.
Q Did you have anything in your hands?
A I may have had a hammer in my hand. I can't remember.
Q What did you do with your feet when you lost your balance?
A I don't know.
Q You don't know. You don't know where your feet went?
A Well I was – imagine in my attempt to regain balance I stepped backwards.
Q You imagine but you don't know do you?
A Well no.
Q And you never have known?
A No.
Q Precisely what happened?
A No."
I accept that the plaintiff does not know what happened after he lost balance and failed to reach the column. No other witnesses were called as to how the accident occurred.
Even within the so–called stable area between the main bearer and the bearer adjacent to the column there were gaps of about 300 millimetres between joists and the possibility exists that the plaintiff missed his footing and fell backwards over the main bearer, his body dislodging the two joists which fell with him. In the same way he may have placed a foot in the gap between them on the outer side of the main bearer falling with the same consequence. I think it unlikely that he stepped backward placing all his weight on the overhanging end of one short joist, for that one would think would be likely to dislodge only the joist he stepped on and not the one next to it as well. Even more unlikely is the possibility that he stepped backwards in such a way that both feet were on the unstable overhanging end of both the joists which fell. One thing is quite clear; he did not deliberately step onto the overhanging sections, but lost his balance at some stage before any part of his body touched them. It is possible that the loss of balance was such that no matter how stable the overhanging section was he would have fallen to the ground in any event.
Of all the possibilities open in the circumstances I find I am unable to be satisfied on a balance of probabilities that but for the instability of the overhanging section of short joists he would not have fallen and injured himself. It was submitted that even if I were not satisfied the plaintiff stepped on the outer end of the joist and fell as a result of that, but that the joists were dislodged because he fell upon them, then I should find that had the module method been used he would have fallen no further and would not have been injured. However, I am unable to accept this proposition either for I do not know the manner in which he was falling or what part of the joists he might have hit and to what extent if any the fact that they were so solidly fixed as to prevent their dislodgement might have arrested his further fall.
The onus of proving that the injuries resulted from some negligence on the part of the defendant lies on the plaintiff. Even were the defendant company careless in failing to insist that he should adopt the method of prefabricating the section in question, the plaintiff has not discharged the onus of proving that he would not have been injured but for the fact that that method was not used.
There must be judgment for the defendant.
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