Ward v Eagle Mining Nl
[2001] WADC 254
•5 NOVEMBER 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WARD -v- EAGLE MINING NL & ORS [2001] WADC 254
CORAM: BLAXELL DCJ
HEARD: 1 NOVEMBER 2001
DELIVERED : 5 NOVEMBER 2001
FILE NO/S: CIV 3496 of 1997
BETWEEN: SUZANNE THEA WARD
Plaintiff
AND
EAGLE MINING NL
First DefendantRAKKAN PTY LTD (ACN 009 305 140)
Second DefendantMINESITE CONTRACTING PTY LTD (ACN 009 015 980)
Third Party
Catchwords:
Tort - Joint or several tortfeasors - Plaintiff injured in fall on first defendant's premises in the course of her employment with the third party - Fall caused by hole in paving laid by second defendant - Consent judgment for damages in full against second defendant - Second defendant's claim for contribution against third party employer - Turns on own facts
Legislation:
Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 s 7(1)(c)
Result:
Order for two-thirds contribution by third party
Representation:
Counsel:
Plaintiff: No appearance
First Defendant : No appearance
Second Defendant : Mr S R Sirett
Third Party : Mr L Chiat
Solicitors:
Plaintiff: No appearance
First Defendant : No appearance
Second Defendant : Wojtowicz Kelly
Third Party : Srdarov Richards Burton
Case(s) referred to in judgment(s):
General Cleaning Contractors Ltd v Christmas (1953) AC 180
McLean v Tedman (1984) 155 CLR 306
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel (1985) 59 ALR 529
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16
Stott v West Yorkshire Car Co (1971) 2 QB 651
Case(s) also cited:
Braithwaite v South Durham Steel Co Ltd [1958] 1 WLR 986
Public Transport Commissioner (NSW) v Perry (1977) 137 CLR 107
Sinclair v Arnott Pty Ltd (1963) 64 SR (WA) 88
Smith v Austin Lifts Ltd [1959] WLR 100
Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110
Wyong Shire Council v Shirt (1980) 146 CLR 40
BLAXELL DCJ: The plaintiff in this action has obtained a consent judgment against the first and second defendants for the sum of $431,393.36 by way of damages for personal injuries. Pursuant to the terms of a settlement between the defendants, the second defendant’s claim for contribution against the first defendant has been dismissed. By consent, the first defendant’s claim against the third party has also been dismissed.
Accordingly, the only residual matter which has come on for trial and which requires my determination, is the second defendant’s claim for contribution against the third party.
Facts which are common ground
At all material times the first defendant was the manager and occupier of the Nimary Goldmine at Jundee near Wiluna. Approximately 120 personnel were employed at the mine site and they resided in a camp and mess premises which were in the final throes of construction by the second defendant.
The first defendant had also engaged the services of the third party as the cleaning and catering contractor at the mining camp. Under the terms of the contract between the first defendant and the third party, the latter agreed, inter alia:
- to supply all labour, supervision, transportation, materials, consumables, equipment, tools and supplies necessary to supply, deliver to the Nimary camp, install and maintain the provision of catering, janitorial and maintenance services to the Nimary camp (cl 2.2)
- to clean all buildings and surrounding areas at the Nimary camp and maintain them in an attractive manner (cl 2.9.1)
- to immediately report to the first defendant should any unsafe situation arise during the conduct of the cleaning and catering services and inform Eagle Mining of the dangers of it (cl 3.7.2)
The plaintiff was one of approximately seven personnel employed by the third party to carry out the cleaning and catering requirements at the Nimary camp. Her main duties involved the cleaning of sleeping accommodation areas and the mess, but on Wednesday afternoons she was also required to assist in unloading a truck which regularly delivered supplies on a weekly basis. (It was while assisting to unload the truck on 17 April 1996 that the plaintiff suffered the injury the subject of the present proceedings.)
In about March 1996 the first defendant instructed the second defendant to enlarge the veranda attached to the mess at the mining camp. This involved a widening of the veranda so that the veranda posts were moved further outwards from the main building. However, one of the veranda posts could not be immediately moved because it supported the Telstra cable entering the building. For this reason, that particular post was temporarily left in situ following completion of the veranda extension.
The floor of the veranda both before and after the extension was constructed of paving bricks. The post which had been left in situ necessitated a gap in this paving and this was partially filled by one of the second defendant’s employees with half a paving brick.
At some later time prior to 17 April 1996, Telstra installed a new cable into the building, and the veranda post was removed by the second defendant. The hole left in the paving by the post was then filled with gravely loam from the area surrounding the building. Once compacted this loam was level with the surrounding bricks and had filled a hole which was approximately 10cm or 11cm square.
On 17 April 1996 the plaintiff suffered injury in the course of her employment with the third party when she stumbled and fell on the area of the paving from where the veranda post had been removed. At that time the plaintiff was carrying two cartons of soft drinks in her arms which she was holding out in front of her.
On about 18 April 1996 (and on the instructions of the first defendant) the second defendant removed the half brick (which had originally been placed next to the veranda post) and replaced it and the previously filled area with a full paving brick. This had the effect of removing the imperfection in the surface which had caused the plaintiff to fall.
The issues between the second defendant and the third party
As against the first defendant, the second defendant has acknowledged that it is liable in full for the plaintiff’s judgment for damages in the sum of $431,393.36. The second defendant claims a contribution from the third party in respect of that sum on the grounds that the plaintiff’s accident occurred as a result of an unsafe system of work adopted by the third party. The particulars of the alleged unsafe system of work are that:
"4.4.1The third party caused or permitted its employees to carry heavy cartons of drink and other supplies across the paving, including the repaired area, when trolleys were available for this purpose or, alternatively, ought to have been provided for this purpose.
4.4.2The surface of the pavers was not smooth, but was of rough tumbled variety.
4.4.3The system of work described in paragraph 4.4.1 reduced the ability of the third party’s employees to see the surface upon which they were walking.
4.4.4The system of work described in paragraph 4.4.1 reduced the ability of the third party’s employees to maintain their balance when walking across the pavers, including the repaired area.
4.4.5By reason of the matters in the preceding paragraphs, the third party exposed the third party’s employees to tripping on the pavers, including the repaired area.
4.4.6The said accident was caused by the third party’s breach of its non‑delegable duty of care."
The third party defends this claim (and also counterclaims for recovery of workers’ compensation payments paid to the plaintiff) on the basis that the accident was caused by the negligence of the second defendant. The particulars of the second defendant’s alleged negligence are that:
"7.1The Second Defendant replaced the hole with a half paver and gravelly loam and / or sand which in the circumstances was unsuitable for the purpose;
7.2The Second Defendant failed to adhere to requests made to it to replace the missing paver with a full brick paver;
7.3The Second Defendant was aware of the fact that the half paver and gravelly loam required to be replaced by a full brick but failed to replace this until after the Plaintiff had suffered injury."
As there is no evidence to support particular 7.2 above, the question of the second defendant’s negligence needs to be resolved by reference to the issues raised by particulars 7.1 and 7.3.
The evidence
At trial I have heard evidence from two witnesses, both of whom were called by the second defendant.
The first of these witnesses was the plaintiff and she has testified that on 17 April she and six fellow employees were required to unload cartons of soft drink and beer from the delivery truck. The truck was backed up to the veranda and the cartons had to be carried by the employees a distance of approximately 20m along the brick paving and around a corner to a storeroom. The unloading operation was supervised by the plaintiff’s superior, Mr Dennis Clark, who also undertook the task of stacking the cartons in the storeroom.
This same unloading operation had been conducted on every Wednesday afternoon during the approximate six months that the plaintiff had been working at the camp. The system adopted was to firstly unload dry goods from the truck at a separate location where rollers on a conveyor frame alleviated the task. The truck was then shifted to a position closest to where the cartons of soft drink and beer were to be stored. However, these cartons had to be carried over a longer distance than the dry goods, and the seven employees had only one trolley and one wheelbarrow between them.
For this reason, most of the cartons had to be carried by hand, and according to the plaintiff:
"We were always in a hurry because Dennis wanted us to finish and get on with our jobs."
Prior to the accident the plaintiff was carrying two cartons at a time which were "quite heavy". The height of the cartons while being carried in front of her also meant that she was not looking at the ground "because I couldn’t see for two or three steps in front of me".
After the plaintiff had made 8 to 10 such trips from the truck to the storeroom, she stumbled in the area of the filled hole in the paving. This caused her to throw the two cartons away in front of her (so that they "broke everywhere"), and to fall forwards on to her wrists.
Immediately following the accident the plaintiff noticed the hole in the paving for the first time, and according to her, the surface of the red sand was approximately 2cm lower than the surrounding bricks.
The second witness was a director of the second defendant, Mr David Forman. At the material time Mr Forman was the supervisor of works for the second defendant at the Nimary mining camp and had approximately 14 workers onsite. He was aware before 17 April 1996 that the veranda post had been removed, but had not paid any particular attention to the state of the paving.
Mr Forman became aware of the accident soon after it had occurred and looked at the hole in the paving on the same day. He noted that it had been filled with compacted earth, and was "happy with what I saw". According to him, the indentation within the hole was only approximately one quarter of an inch (viz 6mm) below the surrounding bricks. This indentation was consistent with the general nature of the paved surface which comprised "rough tumble" pavers with numerous crevices.
Following the removal of the veranda post the second defendant had always intended to replace it with a full paving brick. However, the second defendant did not regard this as a matter of high priority and was going to attend to the task in due course (in approximately one month) simultaneously with repairs to other isolated areas of paving. A full paving brick was in fact inserted very soon after the accident and was accomplished with about ten minutes labour.
The evidence of both the plaintiff and Mr Forman establishes that at all material times the paved area where the accident occurred had been regularly cleaned by another employee of the third party. This cleaning operation included the use of a fire hose, which may well have caused a scouring of the earth within the hole in the paving.
The second defendant has also tendered certified copies of meteorological records. These establish that the temperature in the Wiluna area at the time of the accident was approximately 32ºC with humid conditions.
Factual findings
Very little issue was taken with the evidence of either the plaintiff or Mr Forman, and I have no hesitation in generally accepting each of them as a credible witness. I find that the plaintiff stumbled and fell on 17 April 1996 as a result of the heel of her shoe catching in the hole in the paving caused by removal of the veranda post. I prefer the evidence of Mr Forman as to the depth of that hole and accordingly find that it was approximately 6mm below the surface of the surrounding bricks.
I also find that by reason of the "rough tumble" nature of the bricks, the surface of the paving was not perfectly smooth. The depth of the hole was nevertheless a sufficient imperfection in the surface as to cause the plaintiff to stumble.
I accept the plaintiff’s evidence as to the relevant system of work adopted by the third party. I find that the plaintiff and her fellow employees were required to manually carry the cartons of soft drink, when it would have been relatively easy to provide trolleys and/or wheelbarrows to alleviate this task. Although the plaintiff was not specifically directed to carry two cartons at a time, she and her fellow employees were under pressure to complete the unloading quickly, and her supervisor, when receiving the cartons at the storeroom was well aware of how many were being carried. It was because the plaintiff was holding two cartons in front of her that she was unable to watch her footing as she proceeded across the paving.
I also find that the third party by its employee who regularly cleaned the paved area, ought to have been aware of the hole left behind by the veranda post, and the state that it was in. Under the terms of its contract with the first defendant the third party was obliged to report any "unsafe situation". Had the third party reported to the first defendant on the condition of the hole in the paving, it is likely that the second defendant would have been instructed to immediately rectify it.
The questions of liability and contribution
The second defendant’s claim for contribution from the third party is pursuant to s 7(1)(c) of the Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 which relevantly provides:
"Where damage is suffered by any person as a result of a tort … any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is or would if sued have been liable in respect of the same damage whether as a joint tortfeasor or otherwise … ."
The requirement that the claimant for contribution be "liable" in respect of the plaintiff’s damage may be satisfied not only when there is an actual finding as to liability, but also when such liability arises under a consent judgment (Stott v West Yorkshire Car Co (1971) 2 QB 651). Nevertheless, the claimant must also prove that it was in fact "liable", and that there was not simply a settlement in good faith (see Fleming: "The Law of Torts" 8th Ed at 261).
In the present instance, the third party has not taken issue with the second defendant’s liability to the plaintiff. In any event I am satisfied on the evidence that by reason of the state of the paving, the second defendant was in fact "liable" to the plaintiff for the damage the subject of the consent judgment.
A successful claim for contribution also requires proof that the other tortfeasor "is, or would if sued have been, liable in respect of the same damage". In the present instance the plaintiff did not at any time sue the third party, and accordingly the second defendant must prove that the third party would have been held liable if it had been sued.
In this regard it is claimed that the plaintiff was injured as a result of an unsafe system of work adopted by the third party. It is of course trite law that an employer owes an employee a non‑delegable duty of care to provide a safe system of work (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16). The discharge of that duty requires the employer:
"… to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required … ." (General Cleaning Contractors Ltd v Christmas (1953) AC 180, 194)
Furthermore, the employer is required to take into account the possibility of inadvertent or negligent conduct by an employee or other third parties (McLean v Tedman (1984) 155 CLR 306).
In the present instance I am satisfied that the third party failed to exercise the duty of care it owed the plaintiff to provide a safe system of work. In particular, the third party failed to provide sufficient trolleys or wheelbarrows as would have enabled the plaintiff and her fellow employees to carry the cartons of soft drinks without the risk of tripping or stumbling on the rough surfaced paving. The third party also breached its duty of care by failing to observe the particular hole in the paving which caused the plaintiff’s injury and to request in a timely fashion that it should be repaired.
These breaches of duty by the third party were a direct and immediate cause of the accident resulting in the plaintiff’s injury. Accordingly I am satisfied that if the plaintiff had sued the third party in respect of her damage, the third party would have been found to be liable.
Accordingly, the second defendant is entitled to recover contribution from the third party, and the amount of that contribution is to be "such as may be found by the Court to be just and equitable" (s 7(2) Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947).
Although not expressly required by s 7(2), the assessment of the amount of the contribution must obviously involve an apportionment (as between the second defendant and third party) of responsibility for the relevant damage. The appropriate apportionment is a finding upon:
"… a question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds." (Podrebersek v Australian Iron & Steel (1985) 59 ALR 529, 532)
A just and equitable apportionment of responsibility for the damage must also involve a comparison of the culpability of each party. "Culpability" does not mean "moral blameworthiness but the degree of departure from the standard of care of the reasonable man" (Pennington v Norris (1956) 96 CLR 10, 16).
In this respect, the "culpability" of the second defendant was that it failed to immediately replace the veranda post with a full paving brick when it would have been very easy for it to do so. The second defendant instead filled the hole with compacted earth, when it ought to have realised that the earth might erode and cause a trip hazard. Given that this action on the second defendant’s part was intended to be a temporary repair for perhaps no longer than a month, I consider that the degree of culpability involved was towards the low end of the scale.
The third party on the other hand carried out daily cleaning of the paved area and was in a better position to be aware of the potential hazard. The third party also had a contractual obligation to report any "unsafe situation", which obligation it failed to meet. This failure was compounded by the third party’s system of work which required its employees to carry a relatively heavy load across the paved area while being unable to see their feet. It would have involved very little effort or expense to provide an adequate number of trolleys which would have removed the risk of injury altogether.
It follows in my view that the third party’s degree of culpability for the damage was much higher than that of the second defendant. Doing the best that I can, I consider that a just and equitable apportionment of the relative responsibilities of the parties for the damage would be two‑thirds/one‑third in favour of the second defendant.
Accordingly the second defendant is entitled to a contribution from the third party in the sum of $287,595.57. There will be judgment against the third party for that amount.
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