Rice v Water Corporation - [1999] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL

LOCATION: PERTH

CITATION: RICE -v- WATER CORPORATION & ORS [1999] WADC 46

CORAM: VIOL DCJ

HEARD: 22 JULY 1999

DELIVERED : 27 AUGUST 1999

FILE NO/S: CIV 1760 of 1997

BETWEEN: FRANK RICE
Plaintiff
AND
WATER CORPORATION
First Defendant
SERCO WATER (WA) PTY LTD (ACN 070 955 074)
Second Defendant
ACHRON PTY LTD (ACN 009 014 895)
Third Defendant

Catchwords:

Negligence - Industrial Accident - Liability as between second and third defendants - Turns on own facts.

Legislation:

Nil

Result:

Second and third defendants found to be equally liable for the plaintiff's injuries.

Representation:

Counsel:

Plaintiff:     Not Applicable
First Defendant              :     Not Appicable
Second Defendant         :     Mr T Lampropoulos
Third Defendant            :     Mr B Bradley

Solicitors:

Plaintiff:     Marks Healy Sands
First Defendant              :     Freehill Hollingdale & Page
Second Defendant         :     Minter Ellison
Third Defendant            :     Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Stevens v Brodribb Sawmilling Co Pty Ltd 63 ALR 513

VIOL DCJ: The plaintiff was at all material times a gas service layer employed by Trend Nominees Pty Ltd ("Trend"). The plaintiff was injured in an accident ("the accident") at work on 23 May 1996 when he was laying gas pipes in a trench at a work site in Victoria Road, Malaga. The first and second defendants were engaged in laying water pipes in the same trench.
As a result of injuries received by him in the accident, the plaintiff commenced proceedings against the first, second and third defendants alleging that the negligence of each of them caused or contributed to the accident.
The action against the first defendant was discontinued and ultimately the second defendant consented to judgment in favour of the plaintiff on 18 March 1999 in the sum of $325,000. A memorandum of the consent became Exhibit A in the proceedings.
Each of the second and third defendants had denied liability. The second defendant alleged by statement of claim that the accident was due to the negligence of the third defendant and sought a declaration against the third defendant that the damage complained of by the plaintiff was caused or contributed to by the negligence of the third defendant. Although the second defendant sought a declaration that it was entitled to be indemnified by the third defendant for the plaintiff's claim for damages, at trial it was confirmed by counsel for the second defendant that in fact a contribution was sought by the second defendant rather than an indemnity.
The third defendant filed a defence to the second defendant's claim against it and after denying any negligence on its part, alleged that any injuries to the plaintiff were as a result of the negligence of the second defendant or contributed to by such negligence.
The action therefore became one involving the question as to the contribution as between the second and third defendants for any damages suffered by the plaintiff.
The issues between the second and third defendants can best be summarised by setting out the second defendant's statement of claim against the third defendant and the third defendant's defence to such statement of claim. These are as follows:
"SECOND DEFENDANT'S STATEMENT OF CLAIM AGAINST THIRD DEFENDANT
1.At all material times:
(a)the second defendant was a company incorporated under the Corporations Law;
(b)the third defendant was a company incorporated under the Corporations Law trading under the name of Triad contractors as sewage and drainage contractors.
2.In or about May 1996 Trend Nominees Pty Ltd ('Trend') was engaged by Alinta Gas to lay gas pipes in a common trench on Victoria Road, Malaga ('the worksite'). The second defendant was engaged to lay water pipes in the same trench.
3.The third defendant excavated the trench and was responsible for controlling and co-ordinating the worksite.
4.The plaintiff instituted proceedings in the District Court at Perth against the first, second and third defendants for injuries allegedly sustained by the plaintiff in an accident on 23 May 1996 at the worksite such alleged injuries being caused by the negligence of each of the defendants, their servants or agents.
5.By a statement of claim dated 13 October 1997, the plaintiff alleges that:
(a)on 23 May 1996 he was present at the worksite in the course of his employment with Trend when employees of the first and/or second and/or third defendants obtained a stack of 16 PVC water pipes from a holding yard at the worksite and delivered them to the edge of the trench. The said employees placed the pipes on the level top of the mound of soil which had been excavated from the trench. The stack was secured with steel straps at 3 points along the length of the stack.
(b)On the same day at approximately 3:30pm-3:35pm the plaintiff was standing immediately adjacent to the stack of pipes between the mound of soil and a truck parked at the side of the mound. An employee or employees of the first and/or second defendants cut the steel straps releasing the pipes from the stack. The pipes rolled down the soil mound and struck the plaintiff wedging him against the side of the truck ('the accident').
6.The plaintiff has now discontinued proceedings against the first and third defendants.
7.The plaintiff alleges that the accident was caused by the negligence of the second defendant, its employees or agents.
8.The second defendant has at all material times denied any liability in the Action.
9.Prior to May 1996 the third defendant was, among other things, engaged by the Shire of Swan to dig a common trench along a portion of Victoria Road, Malaga, to allow underground utility services and pipeworks to be installed.
10.Shortly before 23 May 1996, an employee of the second defendant, requested the third defendant to move a sealed pack of 16 PVC pipes closer to the excavated trench where those water pipes were to be laid by the second defendant.
11.Following that request, and without direction from the second defendant as to where to place those pipes, the third defendant placed a pack of 16 PVC pipes on top of the soil mound immediately adjacent to the common trench.
12.At all material times the third defendant was an occupier of, and responsible for, controlling and co-ordinating the worksite, being the excavated trench and surrounds.
13.Should the second defendant be found liable to the plaintiff, the second defendant claims that it was the third defendant's negligence that caused or contributed to the plaintiff's alleged injuries, loss and damages.
PARTICULARS OF THIRD DEFENDANT'S NEGLIGENCE
14.The third defendant was negligent in that it:
(a)placed the pack of PVC pipes on top of the soil mound in a position where it knew or ought to have known that eventually the pack of pipes would have to be opened and the pipes would invariably spill or fall from the soil mound;
(b)failed to separate the pipes from the pack before placing them on the top of the soil mound;
(c)failed to barricade or cordon off the area around the pack of pipes placed on the soil mound;
(d)failed to co-ordinate the worksite so as to prevent the risk of injury to the plaintiff; and
(e)failed to warn visitors to the worksite of the potential dangers that existed.
AND THE SECOND DEFENDANT CLAIMS:
1.a declaration that the damage complained of by the plaintiff in his statement of claim was caused or contributed to by the negligence of the third defendant;
2.a declaration that the second defendant is entitled to be indemnified for or to a contribution from, the third defendant towards the plaintiff's claim for damages;
3.judgment for the amount of costs which the second defendant may be adjudged to pay the plaintiff and for the amount of the second defendant's costs incurred in its defence of the action."
"THIRD DEFENDANT'S DEFENCE TO SECOND DEFENDANT'S STATEMENT OF CLAIM IN THE CONTRIBUTION PROCEEDINGS
1.The Third Defendant does not admit the allegations contained in paragraph 1 of the Statement of Claim.
2.Save that the Third Defendant denies that it was responsible for controlling and/or coordinating the worksite as alleged or at all, the Third Defendant does not admit the allegations contained in paragraphs 2 and 3 of the Statement of Claim.
3.The Third Defendant is not required to plead to paragraphs 4 to 8 inclusive of the Statement of Claim.
4.The Third Defendant does not admit the allegations contained in paragraphs 9 to 11 inclusive of the Statement of Claim.
5.Further, or alternatively, if the Third Defendant placed the pack of pipes on top of the soil mound as alleged or at all, which is not admitted, then:
(a)it did so at the request and/or under the direction and/or supervision of the Second Defendant;
(b)the Second Defendant did not express any concern as to the location of the pack of pipes;
(c)the Second Defendant did not relocate, or seek to relocate, the pack of pipes;
(d)the pack of pipes could not possibly have represented a danger and/or exposed any person to the risk of injury unless reasonable care was not taken in opening the pack of pipes.
6.The Third Defendant denies each and every allegation contained in paragraphs 12 to 14 inclusive of the Statement of Claim.
7.Further or alternatively, if the accident occurred as alleged or at all, which is not admitted, then the Plaintiff's injuries, loss and damage were caused or contributed to by the negligence of the Second Defendant, its servants and/or agents.
PARTICULARS OF THE SECOND DEFENDANT'S NEGLIGENCE
The Second Defendant, its servants and/or agents were negligent in that they:
(a)placed the pack of pipes in an unsafe location;
(b)arranged for, and/or allowed, the pack of pipes to be placed in an unsafe location;
(c)failed to express any concern as to the location of the pack of pipes;
(d)failed to have the pack of pipes relocated before opening it if the location in fact represented a danger;
(d)failed to ensure that the pipes could not escape and/or roll away when they opened the pack of pipes;
(f)failed to ensure that there were no persons in a position where they could be struck by the pipes if they escaped and/or rolled away after the pack of pipes was opened;
(g)generally failed to take reasonable care for the safety of the Plaintiff in the circumstances.
8.In the premises, the Third Defendant denies that the Second Defendant is entitled to the relief claimed or to any relief at all."
Mr Michael John Palmer gave evidence on behalf of the second defendant. He is a service layer for the second defendant. He told me that the service layers maintain the Water Authority's pipes, valves, water services to new houses and generally maintain and repair mains. They have a contract with the Water Corporation, ie, the first defendant. The work involved was a subdivision in Victoria Road Malaga. It was a bush area being developed. The work was being done adjacent to and down Victoria Road. On the day in question he was working with his offsider, Denis McShane. He said the main contractors were the third defendant, "Triad". He described the site as an industrial site and said that Triad was undertaking the roads, installing storm water drains etc. There was a large amount of machinery on site, the property of Triad. There was a foreman employed by Triad by the name of "Henry" who, according to Mr Palmer, was in charge of the site.
The job of the second defendant was to lay water service pipes, ie, the main water pipes. The trench had been dug by Triad and Triad back-filled the trench once the pipes had been laid. The trench was what is known as a "common trench" and water pipes were being laid alongside the gas main. It appears that Alinta Gas was involved in laying the gas pipes.
The pipes being laid by the second defendant were six metres long by 150 mm in diameter, made of plastic. It was agreed that each pipe was 40 kg in weight. The pipes came in large packs containing 18 pipes and they are shown in the photograph Exhibit 1. The packs are secured at four points by a wooden frame which was secured by a metal strap tightened by a machine and effectively locked in place. When the pipes were first delivered they were placed on the verge on the side of Victoria Road furthest from the side where the trench was being dug. In order to release the pipes from the pack a hacksaw would be used to cut the metal straps which would then spring open and generally all but one of the attachments would be removed. The pipes would then be slid out - one end was straight and the other end was flanged.
The pipes would then be carried one by one to the trench and after a few were laid along the trench they would be locked together and glued. The soil from the trench was dug out and placed between the trench and Victoria Road, which meant that the pipes would have to be carried over the soil and then down on the other side of the soil and lowered or placed into the trench.
As the trench got deeper and up to the time of the accident, the distance for the pipes to be carried increased. From the position where the pipes were to be connected to the delivery point was between 30 and 50 metres, and it was apparently getting more difficult to walk to the top of the trench.
Mr Palmer spoke to the foreman from Trend ("Henry") and asked him if he could arrange for the pipes to be placed closer to the job, ie, closer to where they were installing the pipes.
When they got back to the job two or three days later, they found that a pack of pipes (as earlier described) had been placed on the top of the sand mound running parallel with the trench and next to the trench. The sand had been excavated from the trench. The sand was not level so that there were some parts of the pipes which were not in contact with the top of the sand. The sand was about a metre in width, which was approximately the same as the pack of pipes.
Mr Palmer confirmed the method for removing the pipes from the packs and said that each pack was different, some being tighter than others. Therefore, the number of steel bindings cut and wood removed altered from pack to pack. Sometimes, he said, the pipes would "all just fall apart".
On this occasion they walked up the bank and began cutting the steel bindings to remove the pipes which, as previously stated, were sitting on the top of the mound between the trench and the road. Mr Palmer could not say whether it was he or Mr McShane cutting the straps but they were cutting the first or second one when the pack broke apart and the pipes "collapsed down the bank". Two or three of the pipes rolled into the trench and three of four pipes rolled towards the road.
The plaintiff was standing on the road talking to a truck driver when the pipes rolled down the bank and struck him on the back of the leg and jammed him against the truck.
They shouted to the plaintiff to warn him but this did not assist him. Mr Palmer put the height of the mound at two and a half to five metres from normal ground level.
He said that he did not see any other machinery big enough on site at the time to move the pack of pipes.
Mr Palmer, in cross-examination, confirmed that his employer arranged for the pipes to be delivered on site. Prior to the accident they had laid some six or seven packs of pipes, ie, approximately 100 of them. Mr Palmer said that the reason for the trench getting deeper and the mounds of sand getting higher was that the there were two hills through which the trench had to be dug by the third defendant. He said he thought they were working for the third defendant as the main contractor. He did not see it as asking a favour to get the pipes delivered by Triad to a more convenient position but simply because they were the main contractor. He had asked Henry to put the pipes closer to the installation point but in no particular position. There was no time at which his employer had ever used a machine to lift the pipes to a particular place by the use of an extension. He confirmed that the pipes are tightly locked into the packs and under tension. He could not remember an occasion when the band had broken when they had been taking out pipes previously. On this occasion they had not got to the point of attempting to pull pipes out of the pack; the pack broke when the band was being cut. He confirmed that he could not remember who was doing the cutting, nor could he remember how many of the frames had been released, or cut, before the accident. He denied that he was cutting the band when it broke. Because they did not know it was going to break and had not had problems with the bundles before, they did not think to put stakes into the ground to prevent the pipes rolling down the bank or secure them with ropes. He said they had never had an accident and did not think that they had had a band break before spontaneously. He said that the sand was yellow and was "like powder, like salt".
He confirmed in re-examination that the sand was very dry and that they had trouble walking up the side of it.
Denis George McShane gave evidence for the second defendant. He was a labourer at the relevant time employed by the second defendant and working with Mr Palmer. He recalled that he was cutting the bands and said he had cut two and was about to cut the third one when the pipes "burst open". He recalled someone yelling out but after the plaintiff had jumped one pipe, another two hit his legs.
He said that the overall control of the site was under the third defendant and that Mr Palmer would see their foreman "Henry" when necessary. He said that he was standing on the trench side of the mound and whilst he was cutting them, they were about at chest height. He said that on many prior occasions he had cut three of the bands and was able to work the pipes out of the last one. Sometimes it was necessary to cut the final band to get them out. He was not prepared to say that he had seen broken bands on the pipes before but had seen them with the pipes loose, such that they could pull the pipes out of the pack without cutting any of the bands at all. He had seen such packs on this particular site. He thought that it was possible that the fourth band had been loosened in the particular pack involved before he arrived at the scene.
He described the tension as being sufficiently great to require them to stand to one side and watch one's face when the metal band was cut because it sprang open. Whenever they opened a pack of pipes they stood to one side because when the pipes would spring open they had the possibility of hitting them on the face. He appeared to agree that there were hazards involved in cutting open the pipes in the manner normally used and described by him and Mr Palmer.
The plaintiff gave evidence for the second defendant. He was employed by Trend Nominees, which company was contracted to Alinta Gas to lay gas services and mains, such gas pipelines being laid in trenches being dug by the third defendant, Triad. At the time of the accident he was standing talking to some men in a truck and had been doing so for some 60 to 90 seconds. He heard a shout and turned and saw two large pipes, together with a piece of timber with some nails coming out of it, so he jumped out of the way but was struck by some of the pipes. He received back injuries in the accident. He had had discussions with Triad men on site, mainly to find out the dates the trenches would be opened, so they could put the pipes in.

In Cross-examination Mr Rice told me that his family company, Trend Nominees, was working on contract with Alinta Gas. The pipes they were using were water pipes which were heavier than normal pipes. They would put approximately four of them in the truck from the holding yard and take them into the trench one at a time and glue them there. It took three of them to carry each pipe. In so doing, it was necessary for them to walk over the mound excavated from the trench.
He said that 16 of the 18 pipes came down the hill towards him.
Mr Martin Jeffrey Doyle is a Land Officer for the Shire of Swan. He was involved in the scheme for the building works in Malaga. The contract documents were tendered, Exhibit B. The contract was expressed to be between the Shire of Swan and the third defendant. The contract incorporated the Australian Standard General Conditions of Contract (Exhibit C). The accepted contractor with control of the site, he said, was the third defendant. He attended site meetings with the third defendant approximately once a month to monitor the progression of the works.
Mr Trevor Alva Wilton is a Contracts and Works Inspector for the Shire of Swan. He was involved in the Malaga project. He was involved in daily meetings on site with the main contractor, the third defendant. There was an independent company, McDowell Afleck Consulting Engineers, appointed to superintend the implementation of the general scheme involved in the subdivision. It was necessary for him to go through the consulting engineer or superintendent to give instructions to the main contractor, Triad.
Mr Richard William Afleck gave evidence for the second defendant. His company, McDowell Afleck Pty Ltd, had the job of the design of the project, the preparation of the contract for the calling of tenders, the analysis of the tenders and superintendence of the contract. Superintendence of the contract involves making sure that the contractor complies with the contract, to certify payments and administer the contract. Correspondence relating to the superintendence of the contract including correspondence from the third defendant, was tendered. In a letter from the third defendant to his company of 11 January 1996 the third defendant confirmed that on site activities would be under their overall control. Mr Afleck was of the view that on-site safety and co-ordination of contractors was the responsibility of the contractor and not his company. He confirmed that Triad were not laying the gas pipes but having them laid by contractors appointed by Alinta. He confirmed that as part of the obligation of the main contract to Triad it was necessary that they co-ordinated the arrival of various workmen to ensure that there was not a clash of activity on site. They expected Triad to ensure that the work was done as it was required to be done under the contract and to organise the job generally. He said that if the activities of one contractor presented a potential danger to employees of another contractor it was Triad's responsibility to deal with this matter.
It is quite clear in my view that the third defendant was responsible for controlling and co-ordinating the work site in this particular matter. The plaintiff was obviously employed by Trend Nominees as a gas service layer, that company being engaged by Alinta Gas to lay the gas pipes in the common trench being excavated by the third defendant. The second defendant was involved in the laying of water pipes in the same trench.
The employees of the second defendant were involved in the laying of the water pipes and were required to contend with any difficulties encountered as a result of the excavation of the trench, in the course of laying such water pipes.
It is clear from the evidence that the pipes involved were contained in a very heavy pack and that wherever situated the undoing of these packs involved a known and potential danger in the sense that the packs could at any time spring open as they were being cut open.
It is also clear that the second defendant's employees were carrying the pipes for further distances, which became greater as the excavation continued. At the same time, the height of the mound was also becoming greater. The mound itself was in a very unstable condition and involved difficulty for people walking on it and was in my view, very unsuitable for the placement of such pipes upon it.
The second defendant's employees were of the view that the pipes should be placed closer to the place of installation and they sought a favour in effect, from the third defendant in that they requested the third defendant through its foreman "Henry" to arrange this.
The pack of pipes was placed by the third defendant upon the mound in the condition to which I have already referred.

Findings of Fact

It is quite clear from the evidence that the placing of the pack of pipes on top of the soil mound was in a position where it would have been obvious that there was some danger involved. The sand was fine and unstable and the mound was high. The pipes were placed in a position where they were not securely in contact with the top of the mound but on some occasions there was a gap between the bottom of the pipes and the mound itself. It could be said that the pipes were "perched" on the top of an unstable mound of sand. The matter was exacerbated by the weight of the pipes and the size of the pack involved. There were a number of potential dangers in my view involved in this operation by the third defendant. There was the potential possibility of the pipes, when the pack was opened, for the pipes to spill, not only onto the road but also into the trench itself. There was need, in my view, for some protective barrier to be erected, even by means of the placing of pipes to prevent the pipes from running down the hill. People in the area should have been warned, in my view, of the possibility of the pipes rolling down the hill after the pack was opened. Overall, it is clear in my view, that placing the pipes in the position they were, involved a serious risk of injury to people in the area.
On the other hand, upon the arrival of the employees of the second defendant, it should have been obvious in my view, that the pipes were in a dangerous position and that to open the pack in the position where it was was likely to cause injury to some person in the area. I am satisfied that difficulties with the opening of pipes had been experienced by both Messrs Palmer and McShane in the past and it is clear that there was a likelihood of the fact of pipes bursting open. Even on flat ground this apparently represented some danger to the people in the immediate vicinity of the pipes, and in my view, it must have been obvious to employees of the second defendant that for the opening operation to take place on the top of the mound created an even greater danger. They failed to express any concern as to the location of the pack of pipes and in my view should have requested that the pipes be removed and placed in a safer position before they attempted to open the pack. Having commenced the operation of opening the pack they should have ensured that there were no people in the vicinity who could have been injured had the pipes burst open and the pipes either rolled into the trench or onto the road.
Of particular importance is the fact that the mounds of excavated sand came to the edge of Victoria Road. That road was being used by vehicles and workers. The possibility, indeed, probability, of a loose object rolling down the slope and onto the road should have been obvious to employees of both the second and third defendants.
I have considered the pleadings in this particular matter and the various allegations made by the second defendant against the third defendant, and vice versa. In my view it is clear that the third defendant was in control of the site and responsible for general safety on it. On the other hand, the employees of the second defendant were involved in an operation that in itself had the potential for causing injury to other people on site.
Turning to the particulars of the third defendant's negligence, I consider that allegations 14(a), (c), (d) and (e) have been made out.
On the other hand, on the evidence, the employees of the second defendant acted negligently. The allegations in paragraph 7(a)-(g) have been established.
Each of the second and third defendants caused or contributed to the plaintiff's injuries, loss and damage. Notwithstanding that, the third defendant was in control of the site; the work in laying the water pipes was under the control of the second defendant. In my view each of the second and third defendants was equally responsible for the accident and the injuries, loss and damage caused to the plaintiff.
I find therefore, that each of the second and third defendants should contribute equally to the plaintiff's damages.
I will hear counsel as to the appropriate orders to be made.