Watt –v- Mahoney

[2003] QDC 164

DISTRICT COURT OF QUEENSLAND

CITATION:

Watt –v- Mahoney [2003] QDC 164

PARTIES:

BRENDAN PHILLIP WATT  (Plaintiff)

AND

BARRY JOHN MAHONY  (Defendant)

FILE NO/S:

D438 of 1998

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court

DELIVERED ON:

18 July 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

10 and 11 July 2003

JUDGE:

Judge J.M. Robertson

ORDER:

I find the defendant 80% responsible in negligence for the plaintiff’s injuries and the plaintiff 20%.

CATCHWORDS:

NEGLIGENCE – personal injuries. Where plaintiff fell through exposed stairwell void.

DUTY OF CARE – extent of duty of care of owner occupier  where plaintiff employed by independent contractor

CONTRIBUTORY NEGLIGENCE – whether the plaintiff failed to take due care for his safety.

Cases Cited

Stevens v Brodribb Sawmilling Company Pty Ltd [1985-1986] 160 CLR 16

McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2002] QSC 054

Almelda v Universal Dye Works Pty Ltd & Ors [2001] Aust Torts Reports 66,740

McLean v Tedman [1984] 155 CLR 306

COUNSEL:

M. Grant-Taylor (for the Plaintiff)

J.B. Rolls (for the Defendant)

SOLICITORS:

Boyce Garrick Lawyers (for the Plaintiff)

McInnes Wilson Lawyers (for the Defendant)

1. The plaintiff’s claim is for damages as a result of the alleged negligence of the defendant. The claim based on breach of statutory duty was abandoned during the trial. Quantum is agreed, and the only issue at trial was liability.

1. It is common ground that the plaintiff sustained injuries on Monday the 12^th January 1998 when he fell through an exposed stairwell in the upper level of a house under construction at 11 Northridge Court, Chancellor Park. The defendant was the owner builder of the house, and he and his wife still reside at the same address. The defendant accepted that at all material times he was the person in control of the premises. The plaintiff was born on the 22 December 1980, so at the time of the accident, he had just turned seventeen.

1. The defendant had contracted with Ace Wallboard Service, a company under the control of Mr Karel Van Dijk, to hang plasterboard in the premises and Mr Van Dijk had in turn subcontracted with the plaintiff’s father, Mr Don Watt, and others to carry out the work. Mr Watt’s gang consisted of his brother, Jeff Watt, and Russell Cahill and himself, all of whom were experienced plasterers and fixers, and the plaintiff who had just completed school and worked for his father and the others helping them on jobs for “pocket money”. He had been working like this for about eight weeks previous to his injury. He was not on any fixed wage; rather each of the three fixers contributed “a few dollars” for pocket money. He had worked in a similar capacity for his father on a few occasions on weekends as a schoolboy. It follows that he was relatively inexperienced in fixing work.

1. The fixers arrived at some time between 6am and 7am. It is common ground that this was their first day on this particular job.

1. There is some conflict in the evidence about what happened initially. Because of the passage of time, the memories of the plaintiff and his witnesses have faded, and there is a lack of detail. Mr Jeff Watt did not give evidence. He was subpoenaed by the defendant, but did not give evidence for either party. There was no explanation given or sought for his absence. I think it more probable that the defendant did show Mr Watt senior around the site before work commenced. It follows as a matter of common sense, particularly as the house was a bit unusual, and could not be described as a “run of the mill” job.

1. I am satisfied that the only people on the site at the time of the accident were the defendant and the plaintiff, the brothers Watt and Mr Cahill. Mr Don Watt accepted that the plaintiff was under his control and supervision throughout. The defendant would have realised that the plaintiff was quite young, but I am satisfied he did not have any direct knowledge about his level of experience on building sites.

1. All witnesses acknowledged that open stairwells in partially constructed buildings are a notorious danger and source of potential injury to workers.

1. The fixers commenced work. They started in the upper level bedrooms. Mr Cahill and Mr Jeff Watt worked together in one bedroom and Mr Don Watt and the plaintiff worked together, although I am satisfied that the plaintiff was not doing any fixing; rather he was assisting all the fixers by obtaining plasterboards and scoring and cutting them to required lengths.

1. The defendant had prepared the site for the fixers. He is and was an experienced carpenter with long experience on building sites. He was acutely aware of the danger associated with open stairwells. He seemed to have a very good knowledge of the relevant provisions of the Workplace Safety legislation and standards. He had erected a guardrail around the open sides of the stairwell opening, which he had removed in preparation for the arrival of the fixers. The fixers need access to the stairwell area to erect plasterboard.

1. The defendant says, as a form of barrier, he facilitated the placing of the stack of plasterboards at a position demonstrated by him in his scale drawing diagram number one in Exhibit 3. He did this when the boards were delivered by directing the driver to place each sheet one on top of the other to form a barrier almost 1 metre high and 6 metres long and 1.35 metres in width. The defendant is adamant that the area marked “ply sheet floor” to the left of the plasterboard stack in that diagram was a clear space, unimpeded by any wall or anything else. This is the area marked ‘dining’ and ‘family’ in the first floor plan in Exhibit 2. The plaintiff described this area in his evidence as a larger room; but his recollection was quite vague on this issue. Mr Don Watt thought that there was some impediment on the left side of the stack and that is why they commenced to remove boards from the right side nearer the hole. Mr Cahill had very little memory of events, and largely reconstructed.

1. I am satisfied that the fixers did access the plasterboard stack from the right hand side. Mr Don Watt acknowledged that that was risky because of the presence of an uncovered stairwell hole.

1. I am satisfied that the stack was very close to the angled edge of the stairwell as depicted in diagram 1. This accords with the evidence of Mr Don Watt and the defendant. Insofar as the plaintiff suggested the stack may have been slightly more to the left of that diagram, I think he is mistaken.

1. There was much evidence about the mode of access. The plaintiff and his father say they accessed the upper level by means of a step up into one of the back bedrooms. The plaintiff thought he used a ladder. The house was highset at the front and built on a quite steep uphill block. The defendant accepts that access was possible from that point. He says as part of his preparation of the site for the fixers, he placed a ladder in the position marked in diagram 1 of Exhibit 3 for an access point to the ground floor, and, he says as a further safety measure to close off access to the area marked “ply sheet floor” beside the void. The plaintiff and his father could not recall a ladder, but I am satisfied there was a ladder there. For reasons I will identify later, I am satisfied that the ladder was probably not in the position as stated by the defendant. However, there was an alternative access and I accept that when the plaintiff first accessed the upper level he did so by means of the step up to the back bedroom and not by use of the ladder in the stairwell.

1. There is also some conflict about how much time had elapsed when the accident occurred. The plaintiff said about twenty minutes; his father thought it was longer. On all the evidence, I think it is probable that the plaintiff fell within an hour of arriving at the residence. He certainly had time to remove and cut a number of boards for the fixers.

1. The plaintiff says that he recalls measuring a wall in a bedroom, going to the stack, measuring a board using a T-square and pulling a board backwards. It slipped, he overbalanced, and fell backwards 2.7 metres onto the concrete ground floor. He sustained a fracture to his ankle. He says that the board came fully off the stack. I infer he was standing in the area marked “ply sheet floor” next to the area marked “void” immediately prior to his fall. He says he never saw the hole at all, and was not aware of its presence. I think he is mistaken in this evidence. If as the evidence strongly suggests, and as I have found, the boards were being accessed from the right hand side of the stack as depicted in diagram 1, and the stack was very close to the angled edge of the stairwell as I have found; it is improbable that the plaintiff would not have seen the hole. Albeit more experienced, the other two fixers who gave evidence certainly saw the hole prior to the accident.

1. There are a number of aspects of the evidence of the defendant that require careful consideration. Indeed, in a very forceful submission, Mr Grant-Taylor suggests that I will find that the defendant is not a witness of truth, and will not accept anything he says, unless he is supported by independent acceptable evidence. I am quite certain that the defendant is not a liar, however I am satisfied that he has very significantly reconstructed his evidence.

1. For the first time in cross-examination, the defendant positively asserted that in showing Mr Watt around at the start of the job, he specifically pointed out the stack and its function as a barricade, and specifically directed Mr Watt to work from the left-hand side because of the risk of working on the other side. This was never suggested to Mr Watt; and I am quite satisfied it was of recent invention. I so conclude not because I think the defendant has deliberately lied, rather in cross-examination he displayed an inappropriate degree of combativeness and aggression completely out of proportion to the intensity of the questioning, and this answer probably fell out as a consequence of the defendant trying to “outsmart” Mr Grant-Taylor.

1. Secondly, the defendant’s reliability as a witness is seriously undermined by what can only be described as a “moving feast” associated with his case concerning the critical issue in the trial, namely the appropriate level of safety measures required to protect workers coming onto the site by the obvious and real danger of an open stairwell 2.7 metres above a concrete floor. At the start of the trial, and in accordance with the further amended entry of appearance and defence filed by leave by Mr Rolls, the defendant’s case appeared to be that the exposed stairwell hole had been covered by a piece of plywood “which had been moved by the plaintiff or one of the other persons with whom the plaintiff was working immediately prior to his fall.” (paragraph 2A). Obviously, a pleader takes instructions from the defendant, and I can only infer that the defendant’s case was, that as part of his preparations of the site, he or someone at his direction, had covered up the hole with a piece of plywood, and that the plaintiff, or one of the others, had removed it thus exposing him to risk. This was certainly not the defendant’s case during the trial. His case is that in fact, either the plaintiff or someone in the fixers gang had placed a piece of plywood approximately 900mm x 1400mm x 22mm thick in the position marked in diagram 2 in Exhibit 3. The defendant is the author of these diagrams. He says the access ladder had been moved to the position marked in that diagram but not by him. As a result, Mr Rolls filed a second further amended defence by leave after the conclusion of the trial which amended paragraph 2A. Mr Don Watt recalls that indeed there was a piece of flooring across the corner where the sheets were stacked, but he did not put it there. The plaintiff and Mr Cahill’s evidence does not take the matter any further. I think it is more probable than not that the defendant did place a piece of flooring there which then provided access to the area from where the plaintiff ultimately fell. As I have noted, I think the defendant has largely reconstructed his evidence for the reasons set out earlier.

1. Notwithstanding these findings, the primary argument of Mr Rolls is that because the plaintiff was employed by an independent sub-contractor, the defendant’s duty of care was limited in the manner described by various members of the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16; and that I will be satisfied that as the occupier of the premises on which the plaintiff was working, what the defendant did was sufficient to satisfy that duty of care. His submission is that the plaintiff’s injuries were caused by the negligence of his father and the other parties; and alternatively if I am satisfied that the defendant’s duty of care extends to the plaintiff in the circumstances of the case, I will be satisfied that the plaintiff himself has contributed significantly to his injuries by his own negligence.

1. THE LAW

The starting point is Stevens v Brodribb Sawmilling Company Pty Ltd (1985-1986) 160 CLR 16. The relevant passages of the judgments were considered by Chesterman J. in McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2002] QSC 054. In that case, the plaintiff was a timber cutter. He sustained serious injuries when a tree fell on him in the course of a tree felling operation at Stanthorpe. The first defendants were timber carters and the third and fourth defendants respectively operated and owned a sawmill. In that case, the third and fourth defendants denied the existence of the duty of care. That is analogous to the primary argument advanced by Mr Rolls. The first defendants acknowledged a duty of care to provide a safe system of work, but alleged such a system had been implemented, but on this occasion the plaintiff failed to adhere to the safe system. One of the primary issues in McDonnell was the nature of the relationship between the plaintiff and defendants. That is not an issue before me. Clearly the plaintiff was not employed by the defendant. As I have indicated, he worked for the three fixers, who in turn contracted with Van Dijk who contracted with the defendant. The facts in Stevens were somewhat similar to those in McDonnell. The clearest statement of the applicable law is in the judgment of Brennan J at 47:

“An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that tisk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants emplyed by him to carry out that activity. The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman (1985) 157 C.L.R. 424 at p 479) and his duty is more limited than the duty owned by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work wither within his area of responsibility or in an area of shared responsibility.”

1. In their joint judgment, Wilson and Dawson JJ said,

“…we are prepared to assume that it was under such a duty of care, although it seems to us that the extent of the duty would have to take account of the independent functions of the contractors and be something less than that owed by an employer to his employees. To equate the duty with that owed by an employer to his employees would be to give no weight to the very circumstances which differentiates the contractors from the employees. For reasons which will appear, it is unnecessary to pursue that aspect of the matter to finality.

Such as the alleged duty was, it is said, apparently in reliance upon the analogy with the duty of care owed by an employer to his employees, that it was non-delegable. We think that such a duty in this case was non-delegable, although for reasons which can be expressed more simply and in a different way. Any such duty was, in effect, a duty to exercise care in the co-ordination of the activities of the various contractors.”

1. These passages are reproduced by Chesterman J at paragraph 23 of his Honour’s judgment in McDonnell. At paragraph 25 he says, (in relation to the scope of the duty)

“The essence of it seems to lie in the organisation of an activity which carries a risk of injury. The activity is to be organised with reasonable care to avoid risk of injury. So a builder who engages a plumber and an electrician to work on the same site at the same time must take reasonable care that each can work without harm from the other. Beyond this sort of consideration the duty appears to have no scope for operation.”

1. CONCLUSIONS:

Based on my earlier findings as to reliability and credibility, I am satisfied on the balance of probabilities that the defendant, being well aware of the risk of injury to workers coming on site, did not do enough even to satisfy the limited duty of care he owed to the plaintiff contemplated in Stevens. I think it is more probable than not that he did place a piece of flooring in the position depicted in diagram 2 in Exhibit 3; and thus then provided access to an area that he clearly recognised was dangerous. This finding is consistent with the shifting nature of the defendant’s case in relation to the covering of the hole. It would have been a simple and inexpensive safety measure to cover the hole with a piece of ply, which could have been readily moved when the fixers came to work on the stairwell area. The defendant’s rationale for not covering it, i.e. that thereby the workers could not access the ground floor, is simply untenable in light of the acknowledged fact that there was an alternative reasonable means of access. I accept that the fixers were also probably negligent in agreeing as it were (i.e. not complaining) to work around a dangerous site; however that is not to the point. The plaintiff did not sue his father, and he is not otherwise a party to the proceedings. It is not at all uncommon that in workplace accidents there are joint tortfeasors, whose contribution is worked out between them or ordered by the Court if they are all parties.

1. In any event, I think there is considerable merit in the argument advanced by Mr Grant-Taylor based on what he submits is evidence of negligence by the defendant for a number of breaches of the relevant workplace health and safety laws. As I have noted, he abandoned any reliance on a cause of action based on breach of statutory duty. Rather, he made this argument by reference to authority such as the judgment of Santow AJA in Almelda v Universal Dye Works Pty Ltd & Ors (2001) Aust Torts Reports 66,740 at paragraphs 150-151 on page 66,769. It is not necessary for me to finally determine the merits of this submission because of my primary finding.

1. CONTRIBUTORY NEGLIGENCE

The plaintiff was young and inexperienced. Apart from his obvious youth, the defendant had no other knowledge of the plaintiff’s experience. In McLean v Tedman (1984) 155 CLR 306, the High Court considered the principles applicable to contributory negligence in the context of the relationship of employer and employee where the employer had the responsibility of providing a safe system of work. The same general statements of principle apply equally to the situation here where the plaintiff is not the employee of the occupier and controller of the premises. At page 315, Mason, Wilson, Brennan and Dawson JJ said,

“The issue of contributory negligence has now to be approached on the footing that (the employer) failed to discharge its obligation to provide a safe system, that is, to take appropriate precautions against the risk of injury arising from the motorist's negligence and the employee's failure to observe an oncoming vehicle as he carried out his allotted task.  The question is whether that failure should be characterized as mere inattention or inadvertence or whether it amounts to negligence, there being a well recognized distinction between the two.  It is accepted that in considering whether there was contributory negligence by an employee in a case in which the employer has failed to provide a safe system of work, the circumstances and conditions in which he had to do his work must be taken into account.  And the issue of contributory negligence is essentially a question of fact.

As Windeyer J. observed in Sungravure (at p.37), when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to "inattention bred of familiarity and repetition, the urgency of the task, the man's preoccupation with the matter in hand, and other prevailing conditions".  It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man". 

1. On my view of the evidence, the plaintiff here, although young, should have appreciated the danger of working over an unprotected hole, and working in an area close to the hole with large, unwieldy and heavy pieces of plasterboard. As I have found, he must have seen the hole. It goes beyond mere inattention or inadvertence. He had worked continuously on building sites for about eight weeks. The risk must have been quite obvious even to someone of his youth. I am satisfied that he was negligent in failing to observe an obvious danger, and doing the best I can I find that he contributed 20% to his own injuries by his negligence.

1. I have not been told the agreed quantum. I invite submissions on costs if necessary.

1. I find the defendant 80% responsible in negligence for the plaintiff’s injuries and the plaintiff 20%.