Tramontin v Jayform Pty Ltd

[1993] QCA 65

THE COURT OF APPEAL	[1993] QCA 065
SUPREME COURT OF QUEENSLAND

Appeal No. 252 of 1992

Brisbane
[Tramontin v. Jayform Pty Ltd]

BETWEEN:

IVO TRAMONTIN

(Plaintiff) Appellant

- and -

JAYFORM PTY LTD

(Defendant) Respondent

The President
Mr Justice Pincus

Mr Justice Derrington

Judgment delivered the 15th day of March 1993
Judgment of the Court

Appeal allowed. Judgment and orders below set aside. Judgment for the appellant in sum of $33,180.20 together with costs of action, including reserved costs, to be taxed on the District Court scale. Respondent to pay appellant's costs of appeal.

CATCHWORDS:
Negligence. Master and servant. Servant experienced
worker. Deliberate performance of work in way producing
unsafe place of work. Method adopted to due pressure and to
avoid inconvenience. Master knew of practice by some
employees. No instructions to contrary. Apportionment of

liability seventy per cent/ thirty per cent against master.

Counsel:	I. Hanger Q.C. with him M. O'Sullivan for the appellant
M. Grant-Taylor for respondent

Solicitors: Paul Richards and Associates for the

appellant

Heiser Bayley and Mortenson for the
respondent

Hearing date: 8 March 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 252 of 1992

Brisbane
[Tramontin v. Jayform Pty Ltd]

BETWEEN:

IVO TRAMONTIN

(Plaintiff) Appellant

- and -

JAYFORM PTY LTD

(Defendant) Respondent

JUDGMENT OF THE COURT

Delivered the 15th day of March 1993

This is an appeal by the plaintiff limited to the

finding
of the learned trial judge as to the proportion of his
responsibility for the relevant accident due to his
contributory negligence. The apportionment was seventy per
cent.

He was employed by the defendant as a carpenter in the construction of a multi-storey car park. As part of his work he was required to prepare the form-work for the construction of a short flight of concrete stairs. It consisted of a flat piece of plywood which was fitted at the appropriate angle from the foot to the head of the proposed stairs and upon which the concrete would be poured.

Before the concrete pour, it was usual for workmen to use the form-work as a walkway so it was prudent as a safety measure to nail cleats on the plywood to avoid the danger of their slipping on its sloping and slippery surface.

The appellant knew that this should be done but he deliberately failed to do it claiming, with some justification, that he was then at a very busy stage of the work and was under pressure to carry out his tasks quickly.

That it was a busy time was confirmed by the respondent's foreman in his evidence. The appellant gave other excuses for his omission, but they were not reasonable. The learned trial judge found that his reason was that it was inconvenient and time-consuming to install the cleats.

On the respondent's side the foreman knew that some workmen habitually refrained from fixing cleats on form-work such as this where there was relatively short span. He did nothing to correct this and permitted the practice to continue. More particularly he gave no directions or instructions to the appellant or any other workman requiring a safe practice, and of course no steps were taken to enforce it.

Later while he was partly mounting this walkway the appellant slipped and fell due to the slippery nature of the plywood. He had placed one foot well up its slope and leaned forward to pick up his lunch bag. This action was probably undertaken on the spur of the moment and without any serious thought of the danger. It was the obvious and perhaps necessary course for him to take as part of his authorised activity and little if anything by way of fault can be attributed to him for this. His real fault lay in deliberately omitting to affix a cleat or cleats in the first place, knowing that he would probably use such a dangerous means of passage at a later time. In that respect his conduct was more deliberate.

This is mitigated by the pressure under which he was working, the conformity of his action with the known practice of other workmen at this job-site, and the absence of any disobedience to instructions or of any frivolity on his part. Accordingly whilst he was certainly guilty of some departure from the standard of reasonable care for his own safety (Pennington v. Norris (1956) 96 C.L.R. 10 at 16), it cannot be said that he "had been defiantly careless of his own safety" (Bankstown Foundry Pty Ltd v. Braistina (1986) 160 C.L.R. 301 at 311).

This is important in apportioning blame according to "the relative importance of the acts of the parties in causing the damage": Stapley v. Gypsum Mines Ltd (1953) A.C. 663 at 682; Smith v. McIntyre (1958) Tas.S.R. 36 at 42-49 and Broadhurst v. Millman (1976) V.R. 208 at 219). "It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination": Podrebersek v. Australian Iron & Steel Pty Ltd (1985) 59 A.L.J.R. 492 at 494.

"A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks": Bankstown Foundry Pty Ltd v. Braistina (supra) at 310. In that case the High Court did not comment upon the suggestion that there was a tendency of the courts to match the increasing severity towards employers with increasing leniency towards workers.

Whatever the position may be in that respect, it has generally been held that the development and enforcement of a safe system of work is primarily the obligation of the employer as a positive duty; and while the employee has the ordinary duty of a reasonable person to take care for his own safety, this is seen as a duty which has to be discharged within the context of the distractions, pressure and the like to which the employee is subjected in the course of his work. Unless he has been disobedient or foolish the tendency is to visit less responsibility upon the employee whose fault lies in following a system of which his employer knows and which is tolerated: cf. Beauchamp v. Mt Isa City Council (Appeal 103 of 1982, 29 July 1983, Full Court of Queensland); Davies v. Adelaide Chemical and Fertiliser Company Limited (1946) 74 C.L.R. 541; Raimondo v. State of South Australia (1979) 23 A.L.R. 513, 517; McEwan v. McLean's Roylen Cruises Pty Ltd (Appeal No. 107 of 1983, 19 April 1984, Full Court of Queensland).

A suitable apportionment of responsibility in the present case would be seventy per cent against the respondent and thirty per cent against the appellant. This is sufficient to justify disturbing the apportionment made below, notwithstanding the caution with which such a step is taken: A.V. Jennings Construction Pty Ltd v. Maumill (1956) 30 A.L.J.R. 100 at 101; Public Trustee v. Sutherland Shire Council (1992) Aust. Torts Rep. 81-149; British Fame (Owners) v. McGregor (Owners) (1943) A.C. 197, 201.

In the result the damages assessed at $84,891.89 should

be reduced by thirty per cent for contributory negligence.
This produces a figure of $59,424.33. When workers'
compensation payments of $26,244.13 are deducted the
residual figure is $33,180.20.

Accordingly the judgment and orders below should be set aside and in lieu thereof there should be judgment for the plaintiff in the sum of $33,180.20 together with costs of and incidental to the action, including reserved costs if any, to be taxed on the District Court scale. The respondent is also to pay the appellant's costs of the appeal.