WILLIAMS v Trimview Roof Restoration Pty Ltd - [2001] WADC 22

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILLIAMS -v- TRIMVIEW ROOF RESTORATION PTY LTD [2001] WADC 22

CORAM: WISBEY DCJ

HEARD: 9, 10 OCTOBER 2000

DELIVERED : 9 FEBRUARY 2001

FILE NO/S: CIV 3038 of 1999

BETWEEN: STUART ARAM WILLIAMS
Plaintiff
AND
TRIMVIEW ROOF RESTORATION PTY LTD
Defendant

Catchwords:

Negligence - Employee or independent contractor - Terms of contract of engagement - Supervision - Control - Roof plumber injured in fall from ladder - Provisional assessment of damages

Legislation:

Nil

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr B G Bradford
Defendant: Mr M H Zilko

Solicitors:

Plaintiff: Bradford & Co
Defendant: Basile Hawkins

Case(s) referred to in judgment(s):

Humberstone v Northern Timber Mills (1949) 79 CLR 389
Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16

Case(s) also cited:

Astley v Austrust (1999) 73 ALJR 403
Black v MVIT (1986) WAR 32
Bowen v Tutte (1990) A Tort Rep 81-043
Commissioner of Railways v Halley (1978) 20 ALR 409
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Davie v New Merton Board Mills Ltd (1958) 1QB 210
Fox v Wood (1981) 148 CLR 438
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Kondis v State Transport Authority (1984) 154 CLR 672
McLean v Tedman (1984) 155 CLR 306
Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611
Paris v Stepney Borough Council (1951) AC 367
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 A Tort Rep 80-321
Sungravure Pty Ltd v Meani (1864) 110 CLR 563
Thomas v O'Shea (1989) A Tort Rep 80-251
Toth v Yellow Express Carriers (1969) 2 NSWR 425
Wade v Allsop (1976) 10 ALR 353
Wilsons and Clyde Coal Co v English (1938) AC 57

WISBEY DCJ: Some time between 7.00am and 10.00am on 8 August 1997, the plaintiff, who was engaged in roof plumbing activity, fell from a ladder on which he was standing whilst working on a downpipe in a warehouse in Miles Road, Kewdale, sustaining significant wrist injuries.
The plaintiff alleges that the accident resulted from the negligence of the defendant, and the issues for determination are:
1.What was the contractual relationship if any between the plaintiff and the defendant?
2.How did the accident happen?
3.Was the defendant negligent, and if the defendant's negligence was causally related to the accident, was the plaintiff guilty of contributory negligence?
4.What is the proper quantification of the plaintiff's damages, and particularly the extent of the reduction if any in his earning capacity?
The resolution of those issues requires an examination of the evidence.

Stuart Aram Williams

The plaintiff was born in Tasmania on 29 May 1970 and was educated to Year 10, although it is clear that he was not academically gifted. Upon leaving school he commenced but did not complete an apprenticeship as a roof plumber, although he apparently worked in the trade. In fact it appears that in or about June 1994 whilst working as a roof plumber for one Kelvin Radcliffe, the plaintiff fell from a roof and fractured his left wrist.
Prior to commencing work for the defendant the plaintiff was employed at "Shade & Sale".
The plaintiff applied for work with DTS Restorations (the defendant) on or about 15 July 1997 when he and his associate Mick Burnett responded to a newspaper advertisement. It appears that Burnett completed a trade employment application (Exhibit 1) which in summary was a joint application for work which represented that they held a trade licence and appropriate workers' compensation cover, and would work on an hourly or piecework basis. The trade employment application in its terms makes it clear that an appropriate workers' compensation facility was a prerequisite to employment.
It appears from the plaintiff's evidence that he commenced work about a week after the application for employment was submitted, and only worked with Burnett for a day or so. Upon commencing work, the plaintiff would ring the defendant's managing director, Mr Turner, who would direct him as to where his services were required. His first task was a day's work replacing flashings and some roof sheeting at a site in Morley. He was then involved replacing guttering and downpipes on various houses before transferring to the Kewdale warehouse.
The plaintiff claimed that the hours of work were regularly 7.30/8.00am to 4.30pm, and that he generally worked five days a week. He stated that he worked with three or four other men, claiming that although he would go out on his own and do gutter work, the size of the jobs generally required the presence of a number of people. The plaintiff had his own vehicle and personal tools including a drill, tin snips, riveter, nail bag, hammer, silicon gun and such like. He stated that Dave Turner was the overall boss and "he'd turn up every now and again and leave, just to see how we was going". He stated that Ken Cullin was foreman on the big jobs, although it appears Mr Cullin was doing the same type of work as the plaintiff.
The plaintiff stated that he had been working on the warehouse job for about four days prior to the accident, replacing rusted box gutters and downpipes. Ken Cullin, a subcontract carpenter Vince, Chris, and one other person, were also present. The plaintiff stated that the defendant provided three to four aluminium extension ladders 2.7m in length before extension, and one which appears to have been about 10m before extension which was used to enable access to the roof. The day before the accident it was used to get access to the roof and remove and replace old box gutters.
The plaintiff said that there had been two mobile scaffolds on site, but that on the day of the accident there was only one. That day the plaintiff claimed to have been fixing new downpipes internally and externally, and stated in particular that he had fitted a downpipe near the front roller door opening of the building. The plaintiff stated that he used a scaffold when replacing the downpipe, but later remarked that in the days before the accident he had also used extension ladders when fixing downpipes inside the warehouse.
The factory floor consisted of smooth concrete and appears to have been wet on the morning of the accident.
The plaintiff stated that on the morning of the accident Ken Cullin used a flashlight to check the work previously done, and noticed that the internal downpipe fixed by the plaintiff had been leaking. Mr Cullin instructed the plaintiff to seal the leak, but on the plaintiff's account had instructed him to first give Chris a hand. It was apparently necessary to use a flashlight because it was overcast and there was no artificial lighting in the warehouse. The downpipe angle that required sealing was about 5 to 6m above the floor at the point where it entered the building from the external gutter. Because of the instruction given him by Mr Cullin, the plaintiff stated that he helped Chris pick up old box gutters that had been removed, and stack them in an indoor bin, an activity which took approximately an hour and a half.
The plaintiff then turned his attention to sealing the downpipe elbow joint, and alleged that he looked around for a ladder or scaffold, and having spoken with Chris, obtained a ladder from the service vehicle. He had looked for the scaffold but because it was being used at the other end of the warehouse decided to use a ladder. His recollection was that Vince Doran and Ken Cullin were also using ladders. Vince Doran appears also to have been using a trouble lamp for illumination. The plaintiff selected a 2.7m aluminium extension ladder which extended to approximately 5.4m, and erected it at an angle of 60 degrees at the base so that he could reach a height necessary to facilitate the sealing of the elbow joint. He stated that the ladder was standing on the wet cement floor and he made sure it was stable before ascending with his silicon gun held in his nail bag. The plaintiff stated that he sealed the downpipe and had descended approximately two rungs when the ladder slipped out, the base moving away from the wall, causing him to fall straight down onto the ground. He immediately experienced pain in the wrists.
The plaintiff's recollection was that Vince and Chris came to his assistance and Chris took him by utility to a medical centre in Belmont from where he was taken by ambulance to Royal Perth Hospital. He came under the care of the orthopaedic surgeon, Michael Wren, who carried out an operative procedure on the right wrist and plastered the left wrist. At a later date the right wrist was bone grafted and plated.
At the time of the accident the plaintiff was living with Ms Kelly Gibbs and she took approximately six weeks off work so that she could assist the plaintiff for half of each day. During that period Ms Gibbs bathed and fed the plaintiff who stated that it was about a year before he was able to fully care for himself. During that period it seems that Ms Gibbs performed certain domestic duties including tidying the house, mowing the lawns, and the like, to assist the plaintiff. The plaintiff claimed that before the accident he attended to his own domestic requirements.
Following the acute post‑accident phase and partial recovery, the plaintiff underwent a rehabilitation course through Work Focus. Initially he did a work trial at Everbloom Nursery, Sawyers Valley, for about six months commencing in June 1998. He stated that the work was not suitable because it involved a fair bit of heavy lifting which, together with repetitive activity, resulted in wrist pain, although he was able to do the lighter aspects.
In December 1998 the plaintiff commenced a work trial at Bunnings in customer service and again had trouble with the heavier aspects such as lifting and repetitive manual work. He stayed at Bunnings for three months before undertaking a further six to eight week work trial at Mundaring Hardware. Because that was a smaller business than Bunnings, the work involved a greater physical component.
At the date of trial the plaintiff was involved in a computer electronics course run by ITEC. It is a six months course and subject to satisfactory completion would enable the plaintiff to engage in electronics repair work. The plaintiff began the course approximately six weeks after it commenced and four weeks before trial. He expressed his interest in the course and in the work that it would qualify him to undertake.
When asked by his counsel whether there were any factors to be taken into account when using extension ladders, the plaintiff stated that it was important to make sure the ground was level; that the ladder was properly seated on the ground; and that it was tied off if it was being used for long periods. It seems that the plaintiff considered it was only necessary to tie off the ladder if it was being used as a working platform for periods in excess of 20 minutes.
When asked concerning his current symptoms, the plaintiff stated that he experienced more wrist pain in colder weather, and following repetitive physical activity. He demonstrated scarring to the wrists which I did not consider constituted a significant cosmetic component, and which by itself would justify an award of $1,000/$1,500. The plaintiff stated that he was unable to use a lawnmower because of the effect vibration had on his symptoms. He indicated that he now employed a gardener, but did not give any evidence concerning the cost thereof.
In cross-examination the plaintiff stated that it was in fact August 1994 when he first fractured his left wrist, and that he was off work for some two or three months. He agreed that he did not have formal accreditation as a roof plumber.
The plaintiff conceded that his tax returns suggested that he was a subcontractor, and that he had claimed deduction for his tools and motor vehicle. He asserted that he was an employee with "Shade & Sales" where he was paid a basic daily rate. The tax returns make it clear that whilst working for the defendant he claimed a deduction for his motor vehicle and tools, and represented himself as a contractor. Although Burnett completed Exhibit 1, the plaintiff readily adopted what Burnett had represented on his behalf, and confirmed that he represented to Mr Turner that he was in partnership with Burnett. Notwithstanding the representation in Exhibit 1 that the partnership held a trade licence, the plaintiff confirmed that neither he nor Burnett held a licence, nor did they have workers' compensation cover, although the plaintiff had a personal accident policy as a requirement of a former engagement.
The plaintiff confirmed that Mr Turner had not engaged him on a salaried basis, and stated he had an obligation to send Mr Turner an account for work done from time to time. The plaintiff's account covering work done at Bell Street, Banksia Road, Leonard Street and Belmont Avenue was tendered as Exhibit A. The plaintiff was unable to recall much of the initial discussion with Mr Turner when the terms of engagement were discussed, and I formed the impression that his lack of recollection was directly referable to the harm he felt the facts revealed might do to his cause.
The plaintiff's attention was drawn to correspondence passing between his solicitors and the defendant's solicitors concerning the reference to workers' compensation in Exhibit 1, and it is clear that the instruction given by the plaintiff to his solicitors concerning the matter was knowingly incorrect. The relevant correspondence was tendered (Exhibit B).
The plaintiff confirmed that his tax return for the year ended 30 June 1998 (the year in which he was working with the defendant) contained a claim for motor vehicle and other work expenses on the basis that he was operating his own business. The same position applied in respect to the tax return for the year ended 30 June 1999. When it was put to the plaintiff that his earnings since commencing work for the defendant were the highest they had ever been, he said that was because he was a contractor and not just on salary. He agreed that he was working for the defendant on a contract basis.
When it was suggested that he had inverted the ladder when placing it against the wall, the plaintiff responded that he could not say for certain. He denied that the ladder had only been extended slightly. When asked why he had used the ladder when the floor in the area in which he was working was wet, the plaintiff said that the floor was wet everywhere. The plaintiff asserted that Ken Cullin was also using a ladder. He denied having been instructed by Mr Turner a week or so earlier as to the importance of tying off ladders. He denied telephoning Mr Turner from Royal Perth Hospital shortly after his admission.
The plaintiff denied that Mr Cullin instructed him not to use the ladder because of the state of the concrete floor, and to assist other tradesmen on the mobile scaffold.
When it was put to the plaintiff that Mr Cullin would say the ladder had been inverted when placed against the wall, he denied it, although it was clear that what he was in fact saying was that he had no recollection of so doing. The plaintiff stated that he used the ladder notwithstanding the conditions, because Vince Doran was also using a ladder. He confirmed that he was aware of the requirement to tie a ladder, but did not do so on this occasion because the task was going to be of short duration.
The plaintiff denied that his attitude concerning the use of his wrists was over protective. He stated that he enjoyed the work trial at the nursery, but confirmed he had trouble with the heavier tasks and repetitive physical activity.
In re‑examination the plaintiff stated that he was only using a motor vehicle to get to and from work, and confirmed that he shared the profits from the first job with Mick Burnett, although that job seemed to be of short duration. He claimed to have been standing on the flat rungs as he ascended the ladder - that is that it was correctly positioned.
The plaintiff's book of taxation returns were tendered as Exhibit 4.

Vincent Raymond Doran

Mr Doran stated that he was a carpenter and in 1997 was working for the defendant; in particular that he was for three to four days prior to the accident doing carpentry and roof plumbing at the FAL Warehouse at Kewdale. He stated that he was on the prescribed payment tax system whereby the defendant would deduct 20 per cent tax from his entitlement, and he provided his handtools and had his own vehicle. He stated that Ken Cullin was the foreman at the warehouse, and that the team included the plaintiff and several other workers. He claimed that Mr Cullin's job included supervising the other workers to make sure the work was to a good standard, and that they were working a standard eight hour day. Mr Cullin would allocate the work to them. Mr Doran confirmed that the factory floor consisted of smooth concrete which was wet. He stated that the defendant provided ladders and a mobile scaffold which they used outside the building. Mr Doran stated that he used the ladder when sealing downpipes at height, and that he also used the mobile scaffold to pull out some downpipes. He stated that there were no specific instructions given concerning use of ladders, the only requirement being to get the job done.
Mr Doran stated that on the morning of the accident he was working on a ladder inside the factory, approximately 6m from the plaintiff, fixing a downpipe with silicon. The factory floor was wet and slippery. He confirmed that the plaintiff was doing the same sort of work as himself, and stated that he noticed the bottom of the plaintiff's ladder slip out, causing the plaintiff to crash to the floor. He went to the plaintiff's aid, essentially extricating the plaintiff from the ladder and moving the ladder to the side. He claimed that he moved the ladder aside because it was in the opening of a doorway, and he contemplated that an ambulance would have to come in. I find that difficult to accept.
Mr Doran stated that he was the first person to attend to the plaintiff, and was joined by Ken Cullin. He stated that he had not tied his ladder off, and his evidence suggests that he thought it was a waste of time.
In cross-examination Mr Doran stated that he had shifted the ladder a couple of metres from the plaintiff, but was unable to indicate with any particularity how he shifted it, making the obvious point that it was the last of his concerns at the time. He was positive that the mobile scaffold was outside the warehouse, but it actually appeared that he was uncertain as to that fact. Mr Doran stated that he was a subcontractor, meaning that he worked for himself, and that the defendant did not provide him with sick leave or holiday entitlement. He stated that he charged the defendant on an hourly basis.

Robert Glen Philpot

Mr Philpot, a lecturer in applied electronics, works for ITEC Training which conducts six month full‑time courses in applied electronics. He stated that the plaintiff was a student in a course which started on 17 July 2000, although he did not join the course until 29 August 2000. Mr Philpot described the general nature of the course, indicating that there was a good pass rate, and that two‑thirds of those undertaking the course satisfactorily completed it. Of those that dropped out, a number did so because they obtained employment. Mr Philpot stated that the plaintiff was struggling, partly because of his educational background, and partly because he started the course late.
Mr Philpot stated that an electronic service technician could be expected to earn $35,000 a year, but that persons completing the course would not commence work at that level. It seemed from Mr Philpot's evidence that there was a likelihood that the plaintiff would be required to repeat the course, and if that was the case would not be able to do so until the second half of 2001.

David Leonard Turner

Mr Turner is the managing director of the defendant, a roofing company involved in domestic and commercial roofing, entailing the supply of new roofing, removal and replacement of existing roofing, and roof maintenance. Mr Turner had been in the building industry for approximately 25 years, and worked as a building supervisor.
As at August 1997 the defendant had approximately five employees who were working directors and office staff, and engaged contractors to do the roofing work. Mr Turner thought that as at August 1997 the company engaged approximately six subcontractors, although the number has since increased substantially. Mr Turner stated that the subcontractors engaged by the defendant were able to determine their hours of work; were if requested subject to prescribed payment tax deduction; and were required to supply their own tools and vehicles. The defendant supplied materials for some jobs, whilst others were on a supply and fix basis. Subcontractors were at liberty to employ others to assist in the performance of the task for which they were engaged. They were expected to provide their own disability insurance, and did not receive sick leave or holiday entitlement. Their work was not supervised on an ongoing basis, the defendant being only concerned with the end result. Contractors were entitled to work for other people.
Mr Turner stated that the plaintiff and Mick Burnett attended together to apply for work, and they were given a trade application employment to complete (Exhibit 1). He then had a discussion with them when they assured him that they had the expertise to handle the roof plumbing work, and identified the financial basis on which they were prepared to work. Having regard to the information provided in Exhibit 1, Mr Turner assumed that they had the necessary trade licence and workers' compensation cover.. He stated that they requested him to make PPS deductions, and that they had the right to reject work.
Mr Turner said that it was agreed that Burnett and the plaintiff would invoice fortnightly for work completed up to and including the Thursday night, and would receive payment on the Friday. He confirmed that Exhibit A was the invoice he received from the plaintiff. It was apparent from Mr Turner's evidence that it was envisaged that Burnett and the plaintiff would work for a trial period engaged on jobs where other contractors were working "so that we could have a look and find out if they knew what they were doing". Mr Turner stated that he did not exercise any control over the plaintiff save as to assessing the final result. His assessment of the plaintiff was that he was a competent trades assistant, not a competent tradesman.
Mr Turner learned of the accident when he received a telephone call from Ken Cullin who advised that the plaintiff had fallen from a ladder, claiming that he had told the plaintiff twice not to do what he was doing at the time. Mr Turner was of the view that Ken Cullin was the principal subcontractor for the warehouse job and had assumed a leadership role although he had no specific control over the other persons working at the site.
He stated that the defendant supplied a mobile scaffold approximately 3.6m long and 1.2m wide to the site, and in addition there was one of the defendant's ladders on Ken Cullin's vehicle. Upon receiving the telephone call from Mr Cullin, Mr Turner attended the warehouse and observed a ladder lying on the ground in a wet, dirty area of the floor. Inspection revealed skid marks going away from the wall directly towards the top of the ladder which was the furthest portion of the ladder from the wall - that is the semi‑circular treaded feet of the ladder were closest to the wall. Mr Turner pointed out that the treaded feet of the ladder are designed to provide grip and stability, and that it was not safe to invert the ladder so that the flat plastic top was resting on the ground. A series of photographs of the ladder involved in the accident were tendered as Exhibit D.
Upon observing the ladder on the ground, Mr Turner concluded that it had been only extended about two rungs. He confirmed that the floor where the ladder had been positioned was wet and soiled with bird droppings. The mobile scaffold was on the other side of the warehouse approximately 50m from where the plaintiff had been working.
Mr Turner claimed to have visited a worksite in Kewdale some days before the accident when he emphasised to the plaintiff and a number of other persons the necessity to tie off ladders when they were being used. It was his view that if the plaintiff was using a ladder it should have been tied off at about half its height. Mr Turner claimed that the plaintiff telephoned him from the hospital to enquire as to what was happening to his utility, and during the conversation told him that the ladder slipped from under him. Mr Turner accepted in cross‑examination that water and bird droppings on the concrete floor constituted a hazard.
Mr Turner stated that when he got to the warehouse a person by the name of Gordon Price was working on the mobile scaffold. He stated that Chris Peck, the person who transported the plaintiff for medical attention, was a direct employee of the defendant. He accepted that Ken Cullin had assumed the role of giving directions on site - that is allocating jobs - although that is probably no more than one would expect in the particular situation. He would not accept that it was expected anyone would work at height from a ladder.
Mr Turner confirmed that he completed a workers' compensation employer's report of injury form on 14 August 1997 and that document was received in evidence (Exhibit 6). Mr Turner was uncertain whether Vince Doran was working at the warehouse at the relevant time but conceded that he had listed Doran as a witness in Exhibit 6. He stated that the skid marks apparently made by the ladder began 900mm or so out from the wall where one would expected the feet of the ladder to be, and extended out for about 2½m before curving away to where the ladder was lying. The floor area where the marks appeared was wet and covered with bird droppings. It appeared from the marks that the ladder was resting where it had fallen.
Mr Turner was of the view that there was only one mobile scaffold at the site. He seemed to accept that Mr Cullin was "in charge" but that had not been arranged or contemplated by him since Mr Cullin was simply another subcontractor. He was emphatic that he did not contemplate or expect that ladders would be used inside the warehouse for erecting the guttering and downpipes, although it appears that he saw nothing wrong in a contractor using a ladder to ascend 5 or 6m to apply silicon sealer to a downpipe. He expressed surprise that a ladder was being used in the situation in which the plaintiff was using it as he considered it was unsafe to so do. Although there was no artificial lighting he considered that the visibility within the warehouse was adequate for working requirements.
I formed a favourable impression of Mr Turner as a witness. He appeared thoughtful and responsible in giving his evidence, and was prepared to make concessions that might be considered adverse to the defendant's interests.

Kenneth George Cullin

Mr Cullin is a subcontractor roof plumber who has worked for the defendant on and off for approximately three years, and who was working in that capacity in August 1997. He described his role as a subcontractor as that of being given a job and it being up to him to do it. He supplied all his own tools and was not subject to any supervision. Mr Cullin commenced his working life as a plumber, joined the Air Force when he was 35, and returned to roof plumbing in 1989. He had been working in that capacity for the past 11 years. He stated that initially he was the only subcontractor on the warehouse job but because it was too big for one person Mr Turner engaged other subcontractors to assist. He recalled that the plaintiff was one such person, although he seemed uncertain about the names of others. He stated that they were engaged in fixing downpipes inside the building, and for that purpose the defendant had provided them with a mobile scaffold.
Mr Cullin stated that on the morning of the accident he observed the plaintiff with a ladder inside the warehouse, and when he asked what he was doing the plaintiff stated that he was going to fix a downpipe that was just inside the doorway. Mr Cullin stated that the light was not good. He advised the plaintiff not to use the ladder, and directed him to the mobile scaffold. When he did so the plaintiff stated that there were too many people working on the scaffold, and repeated his intention to use the ladder. Mr Cullin stated that he again advised the plaintiff not to use the ladder as it was too dangerous, instructing him to join the others on the scaffold. Mr Cullin went to the scaffold and had been there for 5 to 10 minutes when he heard the ladder being used by the plaintiff fall to the ground. He immediately attended the plaintiff and observed him to be lying on the floor alongside the ladder. Chris Peck also attended, but he did not have any recollection of the presence of Mr Doran. It appeared to Mr Cullin that the ladder had been inverted when placed against the wall by the plaintiff. After attending to the plaintiff, Mr Cullin rang Mr Turner and advised him of what had taken place.
In cross‑examination Mr Cullin confirmed that Chris Peck was engaged in delivering materials for the defendant, although he would occasionally provide the subcontractors with assistance. Generally it appears that he did so under instructions from Mr Cullin. Mr Cullin confirmed that he was coordinating the team's activity, describing himself as "coordinator, foreman, leading hand, whichever way you like to put it". He confirmed that he would give the other men directions as to what work they were to do, but not how to do it. He could not recall if he was using a torch that morning, but appeared willing to accept that he might have been. He was also prepared to accept that he could have told the plaintiff that the particular downpipe on which the plaintiff had been working needed attention. He had no recollection of Vince Doran.
When pressed as to the regularity of their working hours, Mr Cullin stated that they worked eight or nine hours, or whatever time they felt like working. He stated that as he was in charge of the job he would nominate the starting time, but that the others did not have to start at that time if they did not wish to do so. In terms of his supervisory role, Mr Cullin appears to have put it very succinctly when he stated "well, yes, virtually I was the subcontractor of the job so I was virtually in charge of the actual worksite". Mr Cullin was unable to recall any other person working on a ladder.
He readily accepted that not all of the men present at the warehouse could work from the scaffold at the same time, but pointed out that there was other work not involving the use of the scaffold that those not working on the scaffold could undertake. Mr Cullin had no recollection at all of the involvement of Mr Doran either in working duties, or in attending to the plaintiff following his fall. When it was suggested to Mr Cullin that he did not instruct the plaintiff not to use a ladder, he stated that he certainly did.
Mr Cullin confirmed that he was working for the defendant as at the date of trial on the same subcontract basis, and that he would coordinate other subcontractors if they were at his site.
I found Mr Cullin to be an ingenuous individual who gave his evidence in a low key frank and forthright manner. It is difficult to conclude that he has any vested interest in the outcome of this litigation, and I have no reason to doubt the truthfulness and accuracy of his evidence.
I now turn to the issues for determination identified at the commencement of these reasons.

The contractual relationship

The factors to be taken into account in determining whether there is a contract of service or a contract for services were considered by the High Court in Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16. Mason CJ pointed out that a prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged, was the degree of control which the former could exercise over the latter, emphasising however that the importance of control lay not so much in its actual exercise, as in the right of the employer to exercise it. He referred to Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404 where Dixon J said:
"The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter's order and directions."
Mason CJ went on to point out that whilst the existence of control was significant it was not the only criteria by which to gauge whether a relationship was one of employment, noting that there were a number of indicia which had to be considered in the determination of that question such as the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee. His Honour also referred to the organisational test. In the final analysis, however, he emphasised that it is the totality of the relationship between the parties which must be considered.
Their Honours Wilson and Dawson JJ at p 35 said about the test to be applied:
"The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it; Performing Rights Society Ltd v Mitchell & Booker (Palais de Danse) Ltd (1924) 1 KB 762. The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. … The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person to do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance."
In my view a consideration of all the relevant factors in this case point to the relationship being that of principal and independent contractor, ie a contract for services. Exhibit 1, the trade employment application, makes it clear that the plaintiff and Mr Burnett were seeking work as a team, were selling their particular expertise, and were providing their own disability cover. They were being paid on a piecework and/or hourly basis. It is clear from the evidence of the plaintiff, and that of Mr Turner which in substance is uncontradicted on this issue, that both the plaintiff and the defendant regarded the contract as one for services. The basis of remuneration referred to in Exhibit 1 constituted the exclusive financial arrangement between the parties, and the plaintiff was not entitled to any statutory superannuation contribution, sick leave or holidays. The plaintiff was required to provide his own tools of trade, was at liberty to engage others to perform the work, did not have to work exclusively for the defendant, and was not in reality subject to direct control and supervision. He was remunerated according to result.
The application of the objective indicia support the view held by, and the intention of the parties, that it was a contract for services.
In all the circumstances the duty of care owed by the defendant to the plaintiff was the ordinary common law duty of care based on proximity and foreseeability. There were no dangers inherent in the nature of the work required to be done that imposed any special obligations or duty on the defendant.

The nature of the accident

There is no dispute but that the accident occurred when the ladder erected by the plaintiff against the factory wall fell because the base of the ladder slid away from the wall when the plaintiff was working from the ladder. I am satisfied that the ladder slipped because it was standing on a wet, dirty and hence slippery concrete floor, and had not been tied off. I am also satisfied on the evidence that the ladder was inverted when placed against the factory wall and as a consequence did not have the advantage of the foot grip designed to prevent the base from slipping.

Was the defendant negligent

Based upon the finding I have made in (1) hereof, the defendant did not have a duty to supervise the manner in which the plaintiff performed his work. That responsibility rested with the plaintiff who professed the expertise to confidently undertake the work he was doing. In any event I accept the evidence of Mr Cullin that he counselled the plaintiff against the use of the ladder, suggesting that he work from the scaffold. The plaintiff did not take that very sensible advice, and in the result was the author of his own misfortune. He chose to work from the ladder when there was no necessity that he do so; neglected to tie the ladder off, a safety precaution of which he was well aware; and inverted the ladder so that it lacked the designed footing stability. The plaintiff has failed to establish negligence by the defendant.

Quantification of loss

(On basis that he was subject to Part IV, Division 2 of Workers' Compensation & Rehabilitation Act 1981.)

The plaintiff was 27 years old at the date of the accident.
Essentially there is no dispute as to the nature and extent of his injuries, and the reports of the orthopaedic surgeon, Mr Michael Wren, were admitted by consent (Exhibit 5). The reports indicate that the plaintiff sustained bilateral wrist fractures, and make reference to an earlier left wrist fracture from which he made a good recovery with no residual dysfunction. Mr Wren recorded that the plaintiff suffered a severely comminuted intra‑articular fracture of the right distal radius with an ulnar styloid fracture. Additionally he had a moderately comminuted fracture of the distal radius of the left side with intra‑articular extension but without displacement of the articular surface.
The fracture to the right wrist was treated by way of open reduction and internal fixation, and it is obvious from the report dated 11 August 1997 that this was a difficult procedure. Following extensive operative intervention, a below elbow back slab cast was applied. The fracture to the left wrist was treated by way of closed reduction and application of a below elbow plaster. It appears that at his request, and contrary to Mr Wren's recommendation, the plaintiff was discharged home approximately 24 hours post‑operation.

In a short note dated 21 August 1997 Mr Wren referred to the fact that the plaintiff's partner had to take time off from her work to care for him.
The internal fixation wires in the right wrist were removed at operation on 26 September 1997.
Because of continuing problems with the right median nerve which was adherent to scar tissue, Mr Wren performed neurolysis on 27 October 1997.
It is apparent that the plaintiff required extensive physiotherapy.
Following review on 25 November 1997 Mr Wren reported that there had been no subjective improvement in sensation in the right hand, but some improvement in the range of motion, wrist flexion being 30 degrees, extension 45 degrees, pronation 70 degrees, and full supination. Flexion of the left wrist was 40 degrees, extension 95 degrees, pronation 70 degrees, and there was full supination. Mr Wren expressed the view that the plaintiff was not fit to return to his work as a roof plumber for at least six months, and prognosticated that he may never be able to do so, suggesting that he look to retraining in other areas.
On 30 January 1998 Mr Wren performed a corrective osteotomy of the radius of the right wrist with bone grafting and fixation with an ace dorsal plate. The procedure appears to have been a lengthening and dorsal opening wedge osteotomy of the radius in its distal metaphysis with bicortical grafts from the outer table of the iliac crest. This required hospitalisation for several days, and the wrist appears to have been in plaster for about eight weeks, following which it was supported by a wrist splint.
At review on 15 April 1998 Mr Wren noted that the osteotomy was clinically firm. The range of motion had improved considerably with both flexion and extension increasing to 75 degrees, supination was to 80 degrees, and there was full pronation. Mr Wren considered that it might be appropriate to look at work trials in about mid‑1998.
On 1 July 1998 Mr Wren reported that the plaintiff was managing his four hours per day work rehabilitation but experienced aching in the right wrist with long periods of carrying or pruning, and bilateral aching at night. Examination at that stage showed that in respect of the right wrist there was 45 degrees of flexion, 75 degrees of extension, and full pronation and supination. There was persistent hypoaesthesia in the median nerve distribution. The left wrist demonstrated a good range of motion with both flexion and extension to 80 degrees, and full pronation and supination. Mr Wren expected that the plaintiff would slowly experience further functional and symptomatic improvement in both wrists.
On 17 February 1999 Mr Wren noted that the plaintiff was working as a storeman but was restricted in lifting and other activities with a significant physical component. He expressed the view that there was not much future for a storeman with the plaintiff's physical limitations, and suggested rehabilitation along other lines.
On 21 June 1999 Mr Wren reported that he did not expect further improvement in the plaintiff's condition. He noted that the plaintiff had successfully completed work trials as a hardware assistant, although he had experienced difficulty with lifting heavier items such as bags of cement, and was likely to experience some discomfort with heavier manual lifting which was a small component of the nature of the duties ordinarily expected of a hardware worker. He suggested that the plaintiff would be able to find his way around such difficulties by using a trolley or similar device, and considered that he was physically fit to obtain work in that area. He stated that no future medical treatment was contemplated in the short to medium term, but that because of the extent of the injury to the right wrist there was a high risk of progressive osteoarthritis, and a reasonably high likelihood of the plaintiff requiring an arthrodesis (fusion of the wrist) in the next few decades. He put that risk at a 50 to 60 per cent chance stating that if such operative procedure was necessary the current day costs were of the order of $6,000 and the plaintiff would experience incapacity for manual tasks for a period of two to three months thereafter. Mr Wren estimated that there was a 25 per cent loss of function in the right limb below the elbow, and a 10 per cent loss of function of the left limb below the elbow.
The final review by Mr Wren took place on 14 September 1999 at which stage the plaintiff was reporting ongoing symptoms predominantly in the right wrist with aching in the dorsal aspect. There was a limitation of 45 degrees of flexion, extension was restricted to 70 degrees, radial and ulnar deviation were two‑thirds of the normal range, pronation was 80 degrees and there was full supination. Flexion in the left wrist was restricted to 70 degrees, there was full extension and a full range of pronation, supination, and radial and ulnar deviation, with good strength.
The plaintiff was reviewed on three occasions by the occupational physician, Dr Home, whose reports were tendered by consent by the defence (Exhibit C1 - 3). Dr Home's assessment confirms that of the treating surgeon both as to prognosis and retained earning capacity.
There is no doubt that the plaintiff sustained significant orthopaedic injuries, particularly to the right wrist, although by reason of the expert medical treatment the residual functional limitations have been contained. It does appear, however, that there will be an increase in the functional limitation of activity in the right wrist by reason of progressive degeneration. The plaintiff has required a number of operative procedures and ongoing physiotherapy, and must have experienced considerable pain and loss of enjoyment of life. In addition there is the cosmetic disability to which I have made reference. Taking all those factors into account it is my view that the appropriate award by way of general damages for pain and suffering and loss of amenities is $39,375 being 17.5 per cent of a most extreme case.
I would allow the sum of $2,750 to cover the cost of probable future treatment.
The evidence as to gratuitous services lacked definition, making quantification a difficult exercise. I am prepared to accept that for a period of six months post‑accident the plaintiff would have required 1.5 hours assistance per day, or 10.5 hours per week. At the relevant time the average adult weekly total earnings in Western Australia was $737.80 or approximately $18.50 per hour. Using that figure the appropriate allowance for the first six months is:
10.5 hours x $18.50 x 26 = $5,050.50
From that time until the present, a period of three years, I would allow 2 hours per week at $18.50 per hour being -
2 hours x 156 weeks x $18.50 = $5,772
I am satisfied that with time and physical adaptation the plaintiff will not require much in the way of assistance, and I would allow a further $10,000 to cover his future needs.
The evaluation of lost earning capacity requires a consideration of the antecedent work history which essentially appears in the taxation documents (Exhibit 4), a summary of the relevant information being set out hereunder:

Financial Year	Taxable Income	Net Income
30.6.93	$ 8,153.00 (origin unidentified)	$ 7,602.40
30.6.94	$23,259.00 (employee of Calvin C Radcliffe as roof plasterer)	$18,964.94
30.6.95	$18,860.00 (C C Radcliffe $12,748.00 J M Wilson $5,200.00 Concorde Roofing $288.00 Social Security $603.00)	$15,903.96
30.6.96	$ 9,898.00 (Social Security $7,139.90 Robert Pfeiffer $2,784.00)	$ 8,998.40
30.6.97	$14,471.00 (Social Security $3,443.00 Drillcorp $248.00 Superannuation $4,884.00 Self-employment $5,901.00)	$12,410.80
30.6.98 (Year of accident)	$32,201.00 (Self‑employed ‑ mostly w/c)	$24,747.65
30.6.99	$34,911.00 (Self‑employed -totally w/c)	$26,720.00
30.6.2000	$34,820.00 (Self-employed - totally w/c	$26,436.90

It will be observed from the foregoing that prior to the accident the plaintiff had a somewhat erratic earnings history. In the year ended 30 June 1996 his income consisted mainly of social security benefits, and in the year ended 30 June 1997 approximately one‑third was derived from that source. It is therefore difficult to make any realistic prediction as to what the situation would have been but for the accident. It is clear that he had a demonstrated capacity for manual work particularly roof plumbing activities, and doing the best I can on the information available it is my finding that but for the accident the plaintiff had the capacity to generate net earnings (without any deduction for motor vehicle and other personal expenses) of $20,000 per annum or $385 per week. The past loss until 9 February 2001 is 182.42 weeks x $385 = $70,231.70. Having regard to the plaintiff's necessity to retrain and then find employment it is realistic to proceed on the basis that a loss of capacity in the sum of $385 will continue for a further 12 months resulting in a future loss of $20,000.
Because the plaintiff has been in receipt of workers' compensation interest on past loss is not appropriate.
Debbie Ann Larson, the labour market economist called by the defendant, gave evidence concerning work availability and remuneration. She stated that there was a reasonable level of job opportunity as a sales assistant in places such as hardware stores, and that the weekly remuneration for such work was of the order of $592 gross. She considered that there was work available for office equipment repairers, although it was somewhat more competitive, and that one could expect to be paid something of the order of $675 per week in such employment. Her research and documentation suggested that an electronic sales person could expect to earn $493.90 per week.
I am confident that the plaintiff will satisfactorily complete the course that he has embarked upon, and that in the year 2002 is likely to obtain employment no less remunerative than that which he would have been expected to have undertaken had he not had the accident. It must not be overlooked, however, that the injuries he sustained have reduced his employment opportunities particularly in his chosen field, and that if he requires future treatment as prognosticated by Mr Wren, there will be some economic loss following the necessary operative intervention. In the circumstances there should be a further allowance to cover this loss of capacity. Clearly it is not possible to quantify the loss of capacity (opportunity) with arithmetical precision, and I believe that a sum of $50,000 is an appropriate allowance therefor, to include any loss of superannuation benefits.
Had I found for the plaintiff on liability and made an award in his favour there would necessarily have been a reduction to cover the net amount received by way of workers' compensation.