Tomic v A&G Formwork (Australia) Pty Limited

[2004] NSWCA 389

CITATION:	Tomic v A&G Formwork (Australia) Pty Limited [2004] NSWCA 389
HEARING DATE(S):	21 October 2004
JUDGMENT DATE:	1 November 2004
JUDGMENT OF:	Sheller JA at 1; Hodgson JA at 2; Tobias JA at 7
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - Failure to provide safe system of work - Whether lighting inadequate - Obscured puddle of water - Slip resulting in injury - No error by primary judge - EVIDENCE - Lack of detail - Poor English - Insufficient evidence regarding precise state of lighting - Defendant not required to establish level of illumination - Plaintiff's onus remains - Evidence - Expert evidence - Whether opinion ought to have been accepted - Evidence not specific to facts of case
LEGISLATION CITED:	Construction Safety Regulations
CASES CITED:	Blatch v Artcher (1774) 1 Cowp. 63 at 65; 98 E.R. 969 Hampton Court Limited v Crooks (1957) 97 CLR 367
PARTIES :	Sreten Tomic A&G Formwork (Australia) Pty Limited
FILE NUMBER(S):	CA 41026/03
COUNSEL:	A: Mr J Anderson / Mrs J Hill R: Mr D.G.T. Nock SC
SOLICITORS:	A: Martin Bell & Co, Sydney R: Vandervords, Sydney

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 13041/01
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

CA 41026/03
DC 13041/01

SHELLER JA
HODGSON JA
TOBIAS JA

Monday 1 November 2004

SRETEN TOMIC v A & G FORMWORK (AUSTRALIA) PTY LIMITED

Judgment

1 SHELLER JA: I agree with Tobias JA.

2 HODGSON JA: I agree with the orders proposed by Tobias JA and substantially with his reasons.

3 For the appellant to obtain a verdict on the only issue now pursued, he would have to establish on the balance of probabilities that the state of illumination of the area where the accident occurred was such that it was a breach of the employer's duty of care not to provide artificial illumination.

4 Inside a building in the course of construction there will generally be some areas better illuminated by natural light than others; but this will not mean that the darker areas must be given artificial illumination unless either the absolute level of light, or else the contrast between the darker areas and better-lit areas (or the outside daylight), means that the darker areas are such as to involve a risk of injury that an employer should eliminate or minimise.

5 This may be clear in some cases but in the present case, where the accident is said to have occurred about 15 metres in from an open side of the building, what was required was either substantial evidence to that effect from the appellant, or else some evidence from the appellant coupled with failure by the employer to lead evidence which it was in a position to lead. In this case, as explained by Tobias JA, the employer was not in a position to give precise evidence concerning the illumination of the area because of the appellant's failure to report the accident promptly, and failure to suggest inadequacy of lighting for a lengthy period. In those circumstances, the appellant's evidence that the area was "pretty dark" and "not dark, dark like night" but "dark because the formwork was already there", could properly have been considered by the primary judge inadequate to suggest such darkness or contrast as to involve a risk of injury.

6 In those circumstances, there was in my opinion no misapprehension of evidence by the primary judge, and no internal inconsistency in his judgment. And in circumstances where the expert did not have adequate facts or assumptions on which to base an opinion, the primary judge was not in error in not giving weight to his report.

7 TOBIAS JA: On 12 October 2000 the appellant, who was employed as a formwork carpenter by the respondent, was injured when he slipped on a small pool of water whilst working on an extension to the Westfield Shopping Centre at Castle Hill. At the time of his injury he was working on level 2 of the extension, which had been at least partially completed to level 4 in terms of poured floor slabs.

8 The appellant sued the respondent for damages in respect of the injuries so sustained by him alleging, relevantly, that it had been negligent in failing to provide and/or maintain a safe system of work, failing to provide any or adequate lighting to enable the appellant to safely perform the tasks required of him and failing to warn the appellant adequately or at all as to the presence of water on the floor slab of the level on which he was working.

9 The proceedings were heard by Nield DCJ who, on 7 November 2003, concluded that he was not satisfied that the fall or slip which caused the appellant's injury was the result of the respondent failing to take reasonable care for his safety. Accordingly, he entered a verdict and judgment for the respondent. The appellant appeals to this Court from that decision.

10 The appellant's evidence as to how he sustained his injuries, as recorded by the primary judge, was as follows. On 12 October 2000 he was working on the second level, being the first floor, of the building under construction. He was erecting formwork for a column. Between 1.30 pm and 2.30 pm he required a piece of timber for the column's formwork. The timber he required was in a bundle or stack, although there were pieces of timber scattered on the floor. The floor was fairly smooth, being finished concrete.

11 The appellant had, without difficulty or mishap, walked to and from the bundle or stack of timber a number of times during the preceding five days as well as on the day in question. On this particular day, after walking to the bundle or stack, he selected a piece of timber which he then held in the crook of his left elbow. Whilst he was walking back to the column on which he was working, he slipped in a small pool of water, circular in shape and 200-225mm in diameter and 2mm deep. The appellant maintained that he was not aware of the existence of the water before he slipped upon it, asserting that it was in an area of the floor which was "pretty dark". He put his right foot into the pool which then slipped forward whereupon he overbalanced and fell onto his right side. In seeking to break his fall he severely injured the base of his right thumb.

12 There was a significant issue as to whether the accident occurred as the appellant had asserted in his evidence. In particular, there was an apparent conflict between the evidence of the appellant and that of Mr Frank Fazzino, who was the respondent's general foreman at the building site. His version of what occurred was entirely different to that of the appellant. Accordingly, the first question which the primary judge posed for himself, was: "Was the appellant injured in the way that he claimed to have been injured?"

13 In answering this question, his Honour considered that the appellant, his wife and Mr Fazzino had given their evidence directly and frankly. There was nothing about the manner in which each gave his or her evidence that caused his Honour to doubt their veracity. Accordingly, he determined that the decision he would make on the issue referred to would not be based upon the demeanour of any of the relevant witnesses.

14 At the end of day and although he considered that there were reasons for accepting the evidence of Mr Fazzino over that of the appellant, on balance his Honour was not prepared to reject the appellant's version of the accident. Consequently, he considered that Mr Fazzino had incorrectly remembered the events of 12 October 2000 and that although what Mr Fazzino had said had in fact happened, it had not occurred on the day in question. Accordingly, he answered the question that he had posed for himself in the affirmative. His finding was in these terms (Red 30 G-M):

"…I find that the plaintiff was injured in the way that he claimed to have been injured; that is by stepping on a pool of water approximately circular in shape about 8 or 9 inches in diameter and about two millimetres deep on the concrete floor in a darkened area on level 2 of the building while carrying a piece of timber that he intended to use in a building of a formwork around a beam."

15 The second question which the primary judge posed for himself was: "Was the appellant's injury the result the respondent's breach of duty that it owed to him?". The relevant issue was not the existence of the duty of care (which was admitted) but whether it had been breached. His Honour stated correctly the content of that duty which included the provision by the respondent of a safe place at which the appellant was to work. He said (at Red 30 T-31E):

"The employer must devise, explain, implement, maintain and enforce a system which will protect an employee from a foreseeable risk of injury. Moreover, an employer must take reasonable steps towards accident prevention. An employer cannot wait for an accident to happen before taking reasonable steps towards safeguarding the health and safety of its employee. However, of course, an employer's duty is not one of strict liability. An employer does not guarantee that an employee will not suffer an injury in the course of employment."

16 The appellant submitted before the primary judge that the relevant breach by the respondent of its duty of care was a combination of the failure to remove the pool of water from the floor of level 2 combined with its failure to adequately illuminate that floor sufficiently to enable the appellant to have seen the pool of water before he stepped into it. So far as the former alleged omission is concerned, the primary judge found (at Red 33 E-I) that upon the evidence, the pool of water on which the appellant slipped must have formed on the floor in some way (not explained by the evidence) after 8.30am on 10 October 2000 and that, as had been submitted, it could have fallen from an employee's drink bottle only minutes before the appellant slipped on it. He accordingly rejected the appellant's submission that the respondent was in breach of its duty in whole or in part, by failing to remove the pool of water from the floor prior to the appellant slipping upon it. The appellant's grounds of appeal do not challenge this finding.

17 What is challenged is the primary judge's finding with respect to the illumination of the relevant part of the floor of level 2 at the time of the appellant's accident. It appeared common ground that the height between the relevant levels of the building (when completed) was to be between 5 and 5.8 metres, i.e., from the top of the floor slab below to the underside of the slab above. Although the floor slabs were 100 to 120 metres long and 80 to 100 metres wide, the evidence of the appellant was that he was working at a point approximately 15 metres from the open side of the building. In this respect, it was common ground that the sides of the building were open to the natural light. The appellant's evidence in chief on this issue is contained in the following exchanges (Black 7 N-T; Black 9 G-N):

"Q. …Immediately before you were injured where were you working in relation to the outside of the building?
A. Well it was around 15 metres distance from the opening in the building.
Q. Right, and apart from – was there light coming through that opening 15 metres away?
A. Yes, but some light because there were frames and columns obstructing the light.
Q. Right, apart from the light coming in from the outside was there any other light, any other source of light in the area that you were working on?
A. No, during the day there was no other source of light."
…
"Q. All right, so you're in a hurry, and what happened while you were in a hurry carrying this piece of timber under your left arm?
A. And I stepped on a pool of water and I slipped.
Q. When did you become aware that the pool of water was there?
A. When I fell down, then I realised that I'd stepped on it.
Q. Had you seen the pool of water before you stepped on it?
A. No I did not.
Q. Why not?
A. There are a lot of frames around and I was in a hurry and it was pretty dark."

18 In cross-examination (at Black 29 Q), in response to a question that he had told his Honour in chief that the work-site where he slipped was dark, the appellant said:

"A. It was not dark, dark like night, but it was dark because the formwork was already there."

19 The evidence of Mr Fazzino (at Black 73 R-T) was that level 2 would have been roughly level to the street "which has plenty of light and the decks would have been fine with the high- would have been plenty of light". He responded in the affirmative to a question from his Honour that the sides of the building were open. Although initially saying (at Black 74 B-C) that the light entered level 2 "from the top", it was submitted by the appellant that Mr Fazzino resiled from this when, in cross-examination, the following exchange took place (at Black 78 I-O):

"Q. So parts of the floor had been poured on level 2 by 12 October, is that correct?
A. Yes, level 2 was poured, yes.
Q. Now did I understand you to say that the only light that was relied upon was the natural light coming in from the side?
A. Yes.
Q. And is it also your understanding that the responsibility to light the area was left to the head contractor, Bovis and Lend Lease?
A. No, if there is an area which is not light enough of the natural area we would have floodlights shining into the area." (emphasis added)

20 The primary judge's finding on this issue was stated in the following terms (Red 32 B-0):

"As to the illumination of the floor, Mr Fazzino said that natural light entered level two from three sides and from above. As to this light, the plaintiff did not give evidence that the natural light in level two was unsatisfactory or inadequate, although he said that the pool of water was in a dark area of the floor, and Mr Fazzino gave evidence that the natural light was adequate and that, if it had been inadequate, artificial lighting would have been provided. In view of the absence of evidence from the plaintiff that the lighting was unsatisfactory or inadequate, I cannot see any reason to reject the evidence of Mr Fazzino that the natural light was adequate. Accepting the evidence of Mr Fazzino, I reject the contrary evidence of Mr Tozer, particularly as he expressed an opinion in the abstract without having seen the site."

21 The above reference to Mr Tozer was to his report dated 8 August 2002 in which under the heading "Lighting conditions", he had opined as follows (at Blue 10 J-M):

"In my opinion, it would be normal to provide temporary lighting where workers are required to undertake tasks such as cutting, measuring and assembling plywood and timber in areas internal to the building under construction. Daylight which penetrates these internal areas is often inadequate for accurate work, particularly if shadows are cast by columns or walls. There is a foreseeable risk of accident or injury whilst cutting or nailing timber when lighting conditions are not good. The contrast in lighting conditions between the daylight outside and the diffused light in the internal space is also often a source of glare, preventing the darker areas from being seen clearly."

However, as his Honour correctly points out, Mr Tozer had not had the benefit of seeing the site in question at the relevant time.

22 The appellant submitted that the primary judge's finding that the lighting in the accident location was adequate was unsupported by the evidence. Reference was made to those passages in the evidence of both the appellant and Mr Tozer on the one hand and Mr Fazzino on the other which I have extracted above. It was submitted that this evidence dictated a finding by his Honour that the illumination of the area where the appellant worked was inadequate, thus resulting in a failure by the respondent to provide a safe system of work.

23 More particularly, it was submitted that the critical findings of the primary judge which I have extracted in [16] above, were vitiated by two errors of fact. The first was his finding, based on Mr Fazzino's evidence, that natural light entered level 2 "from above". The second was that his Honour's finding that there was an absence of evidence from the appellant that the lighting was unsatisfactory or inadequate, was contrary to the appellant's own evidence that the frames and columns were obstructing the light coming through the open sides of the building and that "it was pretty dark".

24 I do not consider that the primary judge mistook Mr Fazzino's evidence as to one of the sources of light being "from above". After referring to the open sides of the building between levels and that the infill for the walls were shutters, the following exchange took place (at Black 74 B-F):

"Q. So how did the light get in onto the level 2?
A. From the top.
Q. But the --
A. There's nothing above, there's only shutters going up, there's nothing on top on that level. Half of the section, one section was completely open, there's nothing there, no frames, no deck, no nothing, under the walls which was very close to the line of the street."

25 Further explanation of the last answer in the above exchange is to be found in Mr Fazzino's evidence in chief at Black 69. From that evidence it is apparent that the floor slab for level 3 was not poured in one piece but in separate sections. Those sections were identified as sections BA, BB, BC, BD and BE. Section BE had been completed. At Black 69 T-V Mr Fazzino's evidence was that section BD at level 3 was "forming" or was "decking out". I take this to mean that in that section the formwork was being erected in preparation for the pouring the floor slab. Section BA was also only "the forming" stage.

26 It is fair to say that this evidence of Mr Fazzino was less than clear. However, it does appear that the effect of what he was saying was that as at 12 October 2000, the whole of the floor slab of level 3 had not been poured although sections of it had. This would be consistent with the appellant's evidence that the task he was required to perform on the day he was injured was, as the primary judge found, the erection of formwork around steel beams to form columns that would be filled with concrete to support the floor slab above. His evidence was that he had been working alone for the previous five days erecting the formwork for columns at the rate of two columns per day. When taken in conjunction with the evidence of Mr Fazzino to which I have referred, in my opinion it was open to the primary judge to find that one of the sources of natural light entering level 2 was "from above".

27 However, the appellant submitted that Mr Fazzino's evidence in cross-examination which I have extracted at [15] above, involved a resiling by him from any suggestion that natural light entered level 2 from a source other than from the side. The question which elicited an affirmative answer was as follows:

"Now did I understand you to say that the only light that was relied upon was the natural light coming in from the side?"

This was a somewhat misleading question (no doubt unintentional) in that it purported to be a reference to Mr Fazzino's evidence-in-chief which, in my respectful opinion, the question did not accurately encapsulate.

28 It is convenient to note at this point that Mr Tozer in his report, apparently based upon information obtained by him directly from the appellant as well as from his solicitor, contained a number of factual assumptions. One of those was that it was "an overcast day and it had been raining". This was at variance with the evidence which was that on 12 October 2000 the weather was fine. There was no evidence one way or the other as to whether it was a sunny or overcast day. Further, Mr Tozer noted that the appellant was working on the level 2 floor slab, erecting column form work for the floor above. The evidence established that fact. However, he went on to assert that:

"The plywood soffit, framing and falsework frames had been erected for the floor above"

Unfortunately these assumed facts were neither explained nor the subject of evidence. They were therefore unproven.

29 After referring to a "slight depression in the floor behind the column location into which water and mud had accumulated", Mr Tozer continued:

"Because the area was shaded from the daylight by the column and the floor above he [the appellant] did not see the slipping hazard on the floor in front of him." (emphasis added)

The foregoing statement assumed that the floor above where the appellant was working was in fact in place. However, the evidence did not establish this and it appears to be inconsistent with that of Mr Fazzino.

30 The second factual error advanced by the appellant was, as I have noted, the finding by the primary judge at Red 32 J-K that there was an absence of evidence from the appellant that the lighting was unsatisfactory or inadequate. The appellant's evidence was that the formwork and columns (by which I assume he meant the columns which he had covered with formwork) were obstructing light and that it was "pretty dark" where the pool of water was located upon which he slipped. The appellant did not suggest in his evidence that the area generally where he was working on level 2 was "pretty dark".

31 The primary judge acknowledged in his findings which I have extracted in [10] and [16] above that the pool of water was "in a darkened area on level 2" or "in a dark area of the floor". It is apparent that his Honour's finding of an absence of evidence from the appellant that the lighting was unsatisfactory or inadequate was intended as a reference to the area generally where the appellant was working acknowledging, as he clearly did, that where the pool of water was located was a "dark" or "darkened area".

32 Nonetheless, the appellant submitted that the fact that the pool of water was in a dark or darkened area gave rise to a foreseeable risk that if the appellant passed through that area he might slip or trip on some obstruction or the like. Accordingly, the respondent's reasonable response to that foreseeable risk required it to artificially illuminate that particular area. It was pointed out that regulation 73(4) of the Construction Safety Regulations required a builder in charge of a construction site

"to make provision to ensure and maintain lighting (natural and artificial) sufficient and suitable for the illumination of all work places … where persons must frequent, pass or use in the performance of their work or in passage to and from their work…"

33 No submissions were directed to us to establish that this regulation applied to the respondent and, in fact, Mr Tozer's report seems to assume that it only applied to Bovis Lend Lease Pty Limited, who was the principal building contractor.

34 Regulation 73(4) notwithstanding, in my opinion the reasonable response of the respondent as the appellant's employer, in the circumstances of the present case, did not require the particular area where the pool (or more accurately, puddle) of water was located to be artificially illuminated. In the first place, there was no suggestion by the appellant that the area in question was without any light. In fact, as is indicated in [14] above, the appellant conceded that it was "not dark, dark like night". This did not convey that it was so dark as to pose an unreasonable risk of danger. Secondly, when the appellant said that the area in question was "pretty dark", he was saying that compared to areas which were not obstructed by frames and columns, it was not as well illuminated. Certainly, it was common ground that the only illumination of the area in question was from natural light entering that part of the building from the outside but in circumstances where, even if the formwork on level 3 had been in place above the appellant's work area, the floor to ceiling height was in excess of 5 metres and the appellant was working only 15 metres from the open side of the building.

35 Thirdly, the appellant was the person erecting the formwork for the columns. No doubt, before he commenced to do so the space to be occupied by that formwork and the area immediately behind it would be in full natural light. Equally, the appellant must have been aware, as was obvious, that the formwork for the column, once erected, would obstruct the natural light to the area immediately to the rear of the column. However, common sense dictates that although that area would be less well illuminated by the natural light than that on the opposite side of the column closer to the side of the building, nonetheless there would still be a degree of residual light behind the column which would be adequate to enable a person such as the appellant, who was responsible for the erection of the column, to be fully aware of what was immediately behind it.

36 Finally, in my opinion it would be unreasonable, where otherwise the illumination of the appellant's work area was adequate to enable him to perform the work upon which he was engaged, to require the respondent to artificially illuminate the area immediately behind each column as it was erected. An application of the Shirt calculus does not, in my opinion, justify such a response. The appellant has failed on the balance of probabilities to establish that the area where the pool of water was located was so dark and posed such a danger as to require its illumination by artificial means for the respondent to have fulfilled its duty of care to the appellant to provide him with a safe place to work.

37 In the foregoing circumstances, in my view the primary judge accurately found the facts in the paragraph of his judgment under challenge as a consequence whereof no error has been demonstrated.

38 Before leaving this aspect of the appeal I should note a submission of the appellant that, given his background and lack of English, he should not be criticised for failing in his evidence to provide greater detail as to the circumstances surrounding the incident, with particular reference to the state of the lighting. Reliance was placed upon what the High Court said in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371-2 where Dixon CJ observed:

"that plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means that slight evidence may be enough unless this explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Artcher (1774) 1 Cowp. 63 at 65; 98 E.R. 969 at 970."

39 The observation of Lord Mansfield referred to by the Chief Justice was that

"all evidence is to be weighted according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."

In my opinion, this principle has no application to the present case. It was the appellant who was in a position to provide the critical evidence relating to the illumination of the area within which he was working including, in particular, the extent to which the level 3 floor slab and/or any formwork with respect thereto had been erected above the area where he was working. He did not do so. Furthermore, in fairness to the appellant, he was not directly asked questions which would have elicited that evidence.

40 The appellant's evidence was that on the day in question, and for the five preceding days, he had been working on his own. Although he maintained that he was working under the direction of a foreman and leading hand (who were not called to give evidence notwithstanding that it was established that they were still working for the respondent), the appellant did not suggest that either of those persons were within the vicinity at the time of his accident or at any other relevant time and, more pertinently, he never sought them out in order to report the accident.

41 Although a submission was made to the primary judge relating to the failure of the respondent to call those persons, his Honour found that it was difficult to understand why the appellant did not seek out the leading hand or foreman to report his injury which was first reported to the respondent's head office on the following day by his wife and then only in circumstances where she only informed the person to whom she spoke that her husband had been injured. His Honour was not prepared to draw a Jones v Dunkel inference as a consequence of the failure of the respondent to call the foreman and leading hand. There is no ground of appeal challenging this finding.

42 Although, as I have observed, the appellant's wife reported the fact that he had been injured to the respondent's head office the following day, it was not until 19 October 2000, a week after the accident, that she lodged on his behalf a compensation claim with the respondent in which firstly, the accident was described by reference to the appellant slipping over whilst carrying timber, but secondly, noting that there were no witnesses. Further, there was no reference in this claim form as to where or how the appellant slipped. In these circumstances, there is in my opinion no justification for the appellant's submission that it was the respondent rather than the appellant who ought to have called the evidence to clarify the state of the illumination of the area within which the appellant was working at the time of his accident. In any event, the respondent did call such evidence through Mr Fazzino albeit that that evidence was not as explicit in relation to some matters as it might otherwise have been.

43 The appellant's next submission was that there was an internal inconsistency in his Honour's judgment between his finding at Red 30 K-L that the pool of water was "in a darkened area on level 2" and his finding at Red 32 J-K that there was an absence of evidence from the appellant that the light was unsatisfactory or inadequate. With respect, I can see no inconsistency given that at Red 32 F-G his Honour acknowledged that the pool of water was "in a dark area of the floor". Accordingly, this submission should be rejected.

44 The appellant's final submissions was that the primary judge erred in rejecting the evidence of Mr Tozer (which was unchallenged in the sense that he was not cross-examined). In my opinion no such error has been shown. It may well be, as Mr Tozer opines, that daylight which penetrates the internal areas of a building is often inadequate to enable accurate work to be done and that columns or walls cast shadows. However, in the present case, the evidence does not establish that on the day in question it was sunny; nor did the appellant suggest that there were shadows cast by the columns. Furthermore, Mr Tozer did no more than state a general proposition without any reference to the particular facts of this case, given that he had not visited the site in circumstances which are obviously explicable. Mr Fazzino, who was on site at the time, gave evidence which it was open to the primary judge to accept (as he did) that daylight did adequately penetrate the relevant area of level 2. In these circumstances, there was clearly no obligation upon the primary judge to accept Mr Tozer's opinions.

45 I have already noted in [24] and [25] above the assumptions of fact upon which Mr Tozer expressed the opinion, which I have recorded in [17] above. As will be apparent, a number of those assumptions of fact which, in my opinion, would be critical to the formation of that opinion, were not established by the evidence. For this further reason the primary judge was justified in declining to accept Mr Tozer's expressed opinions.

46 For the foregoing reasons, in my opinion the appellant's challenge to the primary judge's finding that there was no breach of duty on the part of the respondent fails as a consequence whereof the appeal should be dismissed with costs.

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Last Modified: 11/03/2004