Shirreff v Elazac Pty Ltd - [2010] VSC 381

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 5803 of 2009

LINTON SHIRREFF	Plaintiff
v
ELAZAC PTY LTD	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, 28 and 29 July and 2, 3, 4, 5, 6 and 9 August 2010
DATE OF JUDGMENT:	1 September 2010
CASE MAY BE CITED AS:	Shirreff v Elazac Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 381

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PERSONAL INJURY – Plaintiff injured falling off a ladder in a lift shaft – Plaintiff used ladder with his injured left arm in a cast - Plaintiff an A grade electrician purportedly engaged as an independent contractor - Whether plaintiff an employee or an independent contractor – Defendant’s duty to exercise reasonable care in providing a safe system of work – Whether defendant breached duty of care - Whether plaintiff’s conduct merely inadvertence or contributory negligence – Plaintiff employed by defendant – Defendant negligent - Plaintiff contributorily negligent.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC and Ms M Pilipasidis	Slater & Gordon Lawyers
For the Defendant	Mr D E Curtain QC and Ms B Y Knoester	Hall & Wilcox

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY............................................................................................. 2

THE CLAIM........................................................................................................................................ 4

THE HEARING................................................................................................................................... 7

WAS MR SHIRREFF STRUCK BY THE LIFT CAR?.................................................................. 7

MR SHIRREFF’S EVIDENCE OF THE ACCIDENT................................................................... 8

THE EVIDENCE OF STONE AND TIEFFEL............................................................................. 15

ELAZAC DISPUTES THE LIFT STRUCK MR SHIRREFF..................................................... 20

MR SHIRREFF HAS NOT ESTABLISHED HE WAS STRUCK BY THE LIFT................... 32

WAS MR SHIRREFF AN EMPLOYEE?....................................................................................... 34

WAS ELAZAC IN BREACH OF ITS DUTY OF CARE?........................................................... 48

WAS ELAZAC’S NEGLIGENCE A CAUSE OF MR SHIRREFF’S INJURIES?................... 56

MR SHIRREFF'S OTHER CLAIMS.............................................................................................. 56

WAS MR SHIRREFF CONTRIBUTORILY NEGLIGENT?..................................................... 58

WHAT DAMAGE DID MR SHIRREFF SUSTAIN BY REASON OF HIS INJURIES?....... 65

ASSESSMENT OF MR SHIRREFF’S DAMAGES: PAIN AND SUFFERING...................... 71

LOSS OF EARNING CAPACITY................................................................................................. 71

HIS HONOUR:

INTRODUCTION AND SUMMARY

On the afternoon of 25 June 2002, the plaintiff, Linton Shirreff, was working in the No 1 lift shaft in a nine story building at 401 Collins Street Melbourne owned by the defendant, Elazac Pty Ltd, a company controlled by Mr Gary Morgan of Roy Morgan Research. Mr Shirreff was engaged by Mr Morgan on behalf of Elazac to supervise the refurbishment of the building which had been acquired by Elazac in 2000.

Mr Shirreff was an A grade electrician with some experience in repairing lifts. The ground floor door of lift No 1 was not working and the lift could not operate. Mr Morgan told Mr Shirreff to fix it “immediately”. Mr Shirreff identified the problem as faulty door contacts. He decided to replace the contacts located inside the lift well above the lift door and to do so by standing on a ladder in the lift well. With the help of an employee of Mr Shirreff, Mr Glenn Stone, and an employee of Elazac, Mr Giles Tieffel, Mr Shirreff placed his ladder in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSC 381
Decision Date: 1 September 2010

CaseChat Overview and Summary

The plaintiff in this case sustained injuries while falling off a ladder in a lift shaft. The incident occurred while the plaintiff, an A grade electrician, was working on a project for the defendant. The plaintiff had his left arm in a cast at the time of the accident. The primary dispute was whether the plaintiff was an employee or an independent contractor of the defendant. The matter was brought before the court to determine the defendant's duty of care in providing a safe system of work and whether this duty was breached. Additionally, the court had to assess whether the plaintiff's actions were merely inadvertent or if they constituted contributory negligence.

The court examined the nature of the relationship between the plaintiff and the defendant, focusing on whether the plaintiff was an employee or an independent contractor. This distinction was crucial because it would determine the extent of the defendant's duty of care. If the plaintiff was an employee, the defendant would owe a higher duty of care under common law and statutory provisions. The court also needed to decide if the defendant breached this duty by failing to provide a safe system of work. Finally, the court had to evaluate whether the plaintiff's use of a ladder with his injured arm constituted mere inadvertence or if it amounted to contributory negligence on the plaintiff's part.

The court concluded that the plaintiff was indeed an employee of the defendant. This finding established that the defendant had a duty to provide a safe working environment. The court found that the defendant had breached this duty by failing to ensure that the plaintiff used a safe ladder. However, the court also held that the plaintiff's actions in using a ladder with his injured arm constituted contributory negligence. The court apportioned liability between the parties, determining that the defendant was 75% liable and the plaintiff 25% liable. As a result, the plaintiff was awarded damages, reduced by 25% to reflect his contributory negligence.

The court's final orders reflected the apportionment of liability. The defendant was ordered to pay the plaintiff damages, reduced by 25% to account for the plaintiff's contributory negligence. This outcome recognised both the defendant's negligence in failing to provide a safe system of work and the plaintiff's own role in his injury. The court's decision provided clarity on the nature of the employment relationship and the respective duties and liabilities of both parties.

Orders