Victorian WorkCover Authority v Cook
[2002] VSC 99
•14 March 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5675 of 1999
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| V | |
| ANNEMARTINE COOK | Defendant |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 13 and 14 March 2002 | |
DATE OF JUDGMENT: | 14 March 2002 | |
CASE MAY BE CITED AS: | Victorian WorkCover Authority v Cook | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 99 | |
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Torts – Negligence – occupiers liability – questions of fact – Part II B Wrongs Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Kennon QC with Mr J. Batten | Wisewoulds |
| For the Defendant | Mr A. Clements | Home Wilkinson & Lowry |
HIS HONOUR:
This action was commenced by a writ issued out of this Court on 4 June 1999. NZI Workers Compensation (Vic) Limited was then the plaintiff and Anne Martine Cook was the defendant. Subsequently, the Victorian WorkCover Authority was substituted for the plaintiff in accordance with the Accident Compensation (WorkCover Insurance) Act 1983.
The plaintiff's claim in the proceeding is for recovery of amounts paid or to be paid by it by way of compensation to a worker, one Peter Hannah, in respect of an accident which allegedly occurred on 17 June 1996 at or near premises known as 6 Cowderoy Street, West St Kilda.
The claim by the plaintiff is a statutory claim under s.138 of the Accident Compensation Act 1985 which in terms provides:
"Where an injury or a death for which compensation has been paid or is or may be payable by the authority, a self-insurer or an employer was caused under circumstances creating a legal liability and a third party to pay damages or that would, but for s.134A create such a liability in respect of the injury or death, the authority, self-insurer or employer is entitled to be indemnified by the third party in accordance with the section."
There follow a series of sub-sections which, among other things, set out the way in which the reimbursement claimed by the plaintiff is to be calculated.
This section, (which had its genesis in recovery rights included in British workers compensation legislation as far back as the turn of the last century) is now in a somewhat sophisticated and modern form. It is the means adopted by the legislature to ensure that statutory compensation funds are, where appropriate, indemnified by those who cause accidents.
In this case, the injured worker was employed by a company, of which he and his family were the effective controllers, known as Aloe Vera Pty Ltd. It engaged in the business of handyman home repairs and in particular, repairs to roofs. It advertised in local papers to that effect. It traded under a trading name of Kevin Bell Maintenance.
Shortly prior to 17 June 1996, the defendant, who was then known as Ms Annemartine Cook, (and is now Annemartine Wilson) telephoned Kevin Bell Maintenance for the purpose of having it assess a problem at her premises at 6 Cowderoy Street, West St Kilda which involved water penetrating into three of the rooms at the house. She believed the problem to originate on or about the roof.
An arrangement was made for Mr Hannah to attend at the premises on 17 June. This he did with two other employees; his son, Andrew Hannah, and another employee, one Cross.
At the time Mr Hannah attended at the premises Ms Cook was at work, but her then husband was home and he had a conversation with Mr Hannah senior (which might have occurred either in the presence of Mr Hannah junior or alone). The outcome of this conversation was that Mr Hannah proceeded to undertake an inspection of part of the roof.
To do so, of his own volition, he placed a ladder in a right of way to the side of the house with a view to climbing up that ladder on to the roof on that side. The wall of the house was contiguous with the right of way. After climbing the ladder and reaching the level of the gutter, Mr Hannah proceeded to climb onto the roof. Very shortly thereafter he fell to the ground and was seriously injured. As he fell, a brick, dislodged from the top of the parapet wall upon which he had placed his hand as he climbed, fell with him.
The evidence as to how Mr Hannah fell can be found essentially in two passages in the transcript. The first is in the evidence of his son, Mr Hannah junior, who described the event in these terms:
"Well, Peter Hannah climbed the ladder, placed his left foot up on the roof, sort of got from the ladder - had his hand up on the top of the brick wall just as a - didn't really actually pull himself up, he just sort of had it as a guide, and as I was sort of looking up, the tile seemed to break and slip, and this sort of thing happened pretty quick, within like a split second, he just come straight down, and it seemed that he had force on the wall that he come down. I didn't notice the brick falling, but as he hit the deck, I just noticed the brick was lying in the alley way.
So he put his left foot up on the roof?---Yes, and his left hand on the parapet.
Well, it'd be pretty hard to do wouldn't it?---Explain that you - up - be natural to sort of get some sort of guide as you're coming up, like I mean, you're going up. His left, up like that, and then that's fairly consistent with him slipping, and then coming down on his right side with all his injuries on the right-hand side - on the right side of his body. It's how I explain that."
Further on, Mr Hannah answered a further question:
"Did the foot stay more or less where the tile is or did his left
foot - - - ?---Well, it just – you can't actually say that the foot stayed - it was his whole body went. It just sort of happens in a split sort of second, but his - from that, I would say that the tile - the foot would stay - would've stayed up into the gutter, it was very quick."
Mr Hannah senior, the injured worker, described the accident in these terms:
"I then positioned the ladder at the most appropriate place to the leak from where I was shown inside and proceeded up the ladder, stepped onto the roof to go to the point where I'd been shown where the leaks were, in this instance about three feet inside the roof, so that would be four foot, or four foot six from the point where the ladder was. In other words, there's 18 inches of eave to be negotiated first, then the thickness of the walls which would've been ten inches, and then approximately three feet inside the roof.
What did you do when you got to the top of the ladder?---Proceeded to step off the ladder onto the roof.
With what foot?---The left foot.
And what did you do with your hands, where were your hands at this point?---The right hand would've been holding onto the ladder and the left hand would've been extended out in front of me.
But did you hold on to the parapet at all?---I don't know about holding on but I would've placed my hand on top of the brickwork.
Then what happened?---The tile beneath my left foot slipped out, slipped out from its position with my foot and my pressure of my body on that tile, so when it slipped, I lost my balance, grabbed, I don't know whether I grabbed, but used the brick wall to correct my balance and the brick came away.
What happened then?---From that point on, I know I fell and with the point of impact with the ground, I don't go any further."
Mr Hannah senior conceded that he had had no memory of the accident until something like five years after it occurred although he says that in recent times he has recalled what happened in the detail to which I have referred.
Although in general terms what Mr Hannah senior says coincides and is corroborative of what his son said, where the two versions differ, I prefer that of the son. I am not satisfied that Mr Hannah's recollection is really a recollection at all. Rather, I believe it is a conscientious reconstruction, aided and assisted by discussion with other people including his son, who was present at the time, and his counsel. Such discussion could not, of course, produce a first hand account, but merely a reconstructed account.
But it matters little, for when one comes to analyse how this accident occurred, it seems to me that it is impossible to say whether it had anything whatsoever to do with the house which Mr Hannah was inspecting and in particular it is impossible to say that it had anything to do with the single brick parapet, one brick of which came away when he fell.
It is incumbent upon the plaintiff to prove its case. In order to establish negligence in the defendant which would be the basis of its right to recovery, it would need to be able to demonstrate that the accident happened in such a way that the question, "Was there any negligence on the part of the defendant which was a cause of the accident?" could be answered in the affirmative.
On the facts in this case, I do not believe it could; not solely because I do not find any negligence in the defendant at all, but also because the causal link between the accident and any assumed negligence could not be proved on the evidence of Mr Hannah junior, much less on a combination of his evidence and that of his father.
It would be impossible to say that were it not for the movement of the brick on the single brick parapet, Mr Hannah would not have fallen. I believe the opposite is probably true. Once he lost his footing, he was doomed to fall to the ground. It would have mattered not whether the parapet had been one brick, two bricks or five bricks thick.
To assert the contrary one would have to accept that once he lost his balance he would have been able, as a matter of probability, have regained his balance by grabbing on to the top of the brick parapet with one hand and then, whilst taking all or most of his weight on that hand, would have got both his feet into a stable position. Not only could one not say that that would have been the probable result of the parapet not giving way, the probabilities go the other way. Mr Hannah would almost certainly have fallen in any event. The inferences I have drawn in reaching this conclusion are strengthened by the unexplained absence from the witness box of Mr Hannah's other employee, Mr Cross who might reasonably have been expected to be able to shed some light on the way the accident happened. He was, after all, an eye witness and employee of Kevin Bell Maintenance at the time.
Having made that finding, it is unnecessary to go any further. The plaintiff must fail. However, lest I am incorrect in that finding, I have considered the issue of negligence.
The law of negligence involving occupiers is of very long standing, such that by the 1980s, it had become complicated and beset with technicalities. Following developments in England and in some other states of Australia, in 1983, the parliament of this state passed the Occupiers Liability Act 1983 which inserted Part 2A into the Wrongs Act 1958.
As the second reading speech of the Minister representing the attorney-general said –
"The purpose of the bill is to do away with this emphasis on categories and labels and to put in its place the general principles of the ordinary law of negligence."
(Hansard: Legislative Council 12 October 1983, p.437).
Further on, the Minister said: "The approach taken in the bill which is to introduce a common duty in place of the variety of duties which existed previously is in harmony with similar developments in other parts of the common law world." It is those developments to which I have already referred.
It follows that the purpose of this Act was not to change the common law but merely to coalesce the various categories of entrant such that the inquiry to be embarked upon in determining liability did not involve the categorisation of entrants into the old categories. Shortly after the passing of this Act, in fact, the High Court decided the case of Australian Safeway Stores v Zaluzna[1] which effected a not dissimilar change in the common law by judicial precedent.
[1](1987) 162 CLR 479
Mr P. Kennan QC for the plaintiff submitted that s.14B(3) of the Act imposed an "onerous duty" on an occupier – although he stopped short of submitting that the duty is more onerous than that which would now be also imposed by the common law. In my opinion s.14B does no more than express the common law in statutory language. The duty imposed on an occupier is a duty of reasonable care: no more and no less. The content of that duty (and thus the question as to whether it has been breached) in any particular case will always be a question of fact to be resolved by reference (inter alia) to the matters listed in s.14B(4).
Having said that, it is sufficient to ask the question whether the conduct of the defendant in this particular occupier's liability situation was reasonable having regard to all the circumstances surrounding the happening of the accident and the various criteria set out in s.14B(4) of the Act.
Mr Kennon for the plaintiff conceded that the only way in which he could establish liability (assuming causation in the plaintiff's favour) would be to establish that there was some negligence in the defendant which related to the single brick parapet wall; that is to say that with respect to that wall, the defendant ought to have either taken some positive step or should have imposed some negative restriction on Mr Hannah so as to obviate the risk of the injuries which he suffered.
The plaintiff relied upon a letter dated 28 April 1985, which it was conceded was received by the defendant, relating to an offer of $500 made by the Government of Victoria in respect of some then recent cracking which was said to have been found upon an inspection of the defendant's house.
Mr Kennon's argument ran that having received that letter the defendant had an obligation to take some step in relation to the parapet wall which would have obviated the injuries suffered by Mr Hannah.
There are a number of faults in this argument.
Firstly the letter relates to "recent cracking". There is no evidence, nor do the photographs which have been produced and exhibited, in any way suggest that the single brick parapet wall was cracked. Indeed, the evidence with respect to cracking is all to the contrary. Mr Cook, the defendant's former husband, and Mrs Cook, each deny there was any cracking in the house at all other than some minor cracking in relation to some work that had been previously done in relation to an “air brick” in one of the rooms of the house. This area was not on or anywhere near the parapet wall. In any event, the fault identified by Mr Kennon as being causative of the accident was not a fault related to cracking, but rather a design fault in that the wall was only one brick in thickness.
Secondly, so far as giving any effective instruction to Mr Hannah is concerned, he was adamant that he would have made up his own mind as to where and how he would access the roof and would have disregarded any instruction the defendant or her former husband might have given him even if they had known, or even suspected the integrity of the parapet wall – of which there was no evidence.
The plaintiff failed to demonstrate any lack of reasonable care on the part of the defendant, either in relation to the parapet wall or generally. Thus the plaintiff's claim fails on the negligence issue as well.
Had the plaintiff succeeded in establishing liability in the defendant, questions may have arisen as to the way in which the calculation of the plaintiff's right of recovery would be undertaken and how the formula set out in s.138(3)(b) of the Accident Compensation Act 1985 would be applied. However, having regard to the fact that I find there was no basis for the plaintiff's action, it is unnecessary for me to discuss those matters further. It is also unnecessary for me to consider whether there was any negligence either in Mr Hannah himself, or his employer.
There will be judgment for the defendant.
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