Dobson v Offwood Pty Ltd
[1998] QDC 148
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- Unreported Judgment
- Dobson v Offwood Pty Ltd[1998] QDC 148
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Dobson v Offwood Pty Ltd[1998] QDC 148
Dobson v Offwood Pty Ltd[1998] QDC 148
DISTRICT COURT | No 591 of 1997 |
CIVIL JURISDICTION
ACTING JUDGE AMBROSE
BARRY ROBERT DOBSON | Plaintiff |
and
OFFWOOD PTY LTD (IN LIQUIDATION) (ACN 010 145 990) | Defendant |
BRISBANE
DATE 29/05/98
JUDGMENT
HIS HONOUR: This is an action for damages for personal injury suffered by the plaintiff in the course of his employment with the defendant. Quantum is agreed in the sum of $65,000. The only issue remaining, therefore, is liability.
The plaintiff's action is framed as “damages for personal injuries caused by the breach of contract of employment, negligence or breach of duty of the defendant”. It is not pleaded what kind of “breach of duty” the defendant committed.
Paragraph 9 of the amended plaint alleges that the plaintiff's injuries were caused by the negligence of and/or breach of the contract of employment by “and/or breach of statutory duty by the defendant or its servants or agents”. Particulars of the alleged failings of the defendant then follow.
It is not pleaded by the plaintiff that the defendant was in breach of any particular statute or section thereof.
Particular (d) alleges the defendant failed “to ensure the health and safety at work of the plaintiff;”. It is not pleaded that this was relied upon by the plaintiff as constituting a breach of any particular duty imposed by any particular statute.
I accept that paragraph 5 of the pleading asserts that section 9 of the Workplace Health and Safety Act 1989 imposed a duty on the defendant to ensure the health and safety at work of the plaintiff. It does not follow, however, that by this pleading the plaintiff has properly raised that a breach of that section occurred and in consequence thereof that the defendant is liable to the plaintiff in damages.
On 24 February 1994 the plaintiff was employed by the defendant as a carpenter. He, together with his co-employee, Mr Alexander, were engaged to work on a mid level of a multi-storey city building. They were engaged in building internal partitions and suspended ceilings. The carpenters used tools owned by themselves personally and tools owned by the employer.
It was the usual practice of the defendant and other employers, with whom both the plaintiff and Alexander had been employed for over 20 years or so, to provide a tool lock-up box in which to securely store the tools overnight. This lock-up box was invariably located on the floor on which the tradesmen were working. The exception would be where that floor was so awkward a shape as to prevent this occurring. That was not the case here.
At this site the usual practice was not followed. The upper floors at this site were serviced by two lifts from ground level. One only of those lifts serviced the basement which otherwise was accessed by one staircase consisting of two flights of stairs with a landing separating each flight. For a reason unexplained in the evidence, on this job the plaintiff's supervisor had located the lock-up box in the basement of the building undergoing renovation. This would not ordinarily cause a problem as the basement was serviced by a lift. Ordinarily tools would be taken from the lock-up box, placed in the lift and then taken by the tradesmen to the floor upon which they were working. At the end of the day the tools would be locked up following the reverse of the procedure referred to above.
On 24 February 1994, probably sometime after lunch, the lift which accessed the basement went out of order. It apparently remained out of order until after knock-off time. The plaintiff, and Alexander, were left without direction or assistance from the supervisor in the task of transporting the tools to the basement.
It was at about 4 p.m. on that day that the plaintiff, with Alexander's help, loaded the tools in the lift and took them to the ground floor.
The plaintiff had to make a decision how to safely transport the tools to the lock-up. The plaintiff and Alexander divided the load and carried them down the two flights of stairs to the basement. The plaintiff was carrying his own personal tools in a bucket. In addition, he carried a hammer drill and a screw gun, a laser level and a box, all of which belonged to his employer. He may also have been carrying one or possibly two electrical leads. Mr Alexander was following the plaintiff down the stairs.
Asked what happened to the plaintiff as he was walking down the stairs, the plaintiff said:
“Well, I got so far down and I just got a tremendous pain in me (sic) knee and just hobbled into the office with the rest of the tools.”
The plaintiff did not think there was anything awkward about the load he was carrying such that it might cause him to be outstretched and unbalanced. The pain he felt in his knee was not associated with any slip or trip or anything like that as far as the plaintiff could remember. He was not descending the stairs at anything other than a normal pace.
Mr Dobson's unchallenged evidence was that the load he was bearing weighed an estimated 35 kilograms.
Both the plaintiff and Alexander were acutely conscious that they ought not leave any tools unattended at the building site as there was a very real risk that the tools so left would be stolen. The plaintiff was not prepared to take that risk with either his own or his employer's tools, some of which were very expensive.
The loss of a tradesman's tools or those of his employer would entail not only the obvious loss but also, I infer, delay in performance of the job on behalf of the employer. The loss of the employer's tools through being left unattended would, I suspect, adversely reflect on the plaintiff's sense of responsibility, particularly as the risk was well known, if not notorious.
There is a difference in recollection between the plaintiff and Mr Alexander as to whether the supervisor was on site at the time of the descent. Mr Alexander believed the supervisor was on site but the plaintiff thought the opposite. I prefer the evidence of the plaintiff on this point. After his fall I believe it was his intention to report the incident to the supervisor, but I am prepared to find that the supervisor had left the site and was unable to receive such a report.
Prior to this incident the plaintiff was a physically active person who enjoyed being a regular runner, which running included long distance running. Prior to this incident he had never experienced any problems with his left knee whilst running.
Dr Curtis describes the circumstances as follows:
“It is unusual for a normal patella tendon to spontaneously rupture and one would presume that there was some degree of previous degeneration present. Whether this was due to the nature of his occupational tasks or his previous running or a combination of both, one cannot say, but it is unlikely that such a condition would have arisen ‘de novo’.
Presuming there was degenerative change present prior to the rupture, then it is probable that such changes would have gradually deteriorated as the causative factors persisted and that ultimately his present condition would have arisen in any case, although one can only be speculative about when such a condition would have happened, probably within a period of five years.”
An ultrasound did reveal the presence of degeneration in the patella tendon attachment area. Dr Bendeich says:
“There was little, if any, trauma involved at the incident at work on 24/02/94 when the knee just seemed to give way. There is very probably an underlying predisposing condition involved here relating to his road running.”
I am not prepared to find that there was an underlying predisposing condition related necessarily to road running. Nor am I prepared to find that the pre-existing degeneration could have predisposed him to this sort of spontaneous injury. There is simply insufficient evidence on this point.
I accept Dr Curtis' unchallenged evidence that this might have occurred within five years of 1994 irrespective of this incident.
No medical evidence was led to support a conclusion that bearing 35 kilograms was a precipitating factor in the happening of the injury. The plaintiff apparently had no prior history of injury to his knee and it cannot be found that the defendant ought to have appreciated he was at risk because of the presence of the degenerative condition. The plaintiff was not, to the knowledge of his employer, vulnerable in circumstances where special care ought to have been exercised for his safety.
Mr Daubney, learned counsel for the plaintiff, submitted that it was foreseeable that an employee being required to carry such a load down stairs is at risk of injury to the joints of his lower limbs. His second proposition was that that risk was foreseeable such that the employer owed a duty of care to take reasonable steps to avoid its happening. Next he submitted that there was a reasonable and practicable alternative system available to the employer; namely, that the lock-up box be located on the floor upon which the plaintiff was required to work, the adoption of which system would have avoided the risk of injury.
I have no difficulty in finding that it was reasonably foreseeable that, burdened as he was, he was at risk of injury whilst traversing the steps to the basement. In addition, I have no difficulty finding that there was a reasonably practicable alternative system which could have been employed to minimise the risk of injury.
I apprehend the issue to be whether the injury was relevantly caused by the employer's conduct. That requires me to consider whether the spontaneous rupture was caused or contributed to by the requirement to carry tools weighing approximately 35 kilograms down the two flights of stairs. I accept that if an employer requires an employee to carry miscellaneous tools of various shapes and weights, it is foreseeable that he might lose his balance whilst descending stairs or turning at a landing between flights. I do not believe that a spontaneous rupture of an apparently healthy tendon in the absence of evidence that it was precipitated by the carrying of an excessive load could be said to be caused by the employer's conduct.
The plaintiff did not think that the load was excessive. He described it as “no problem”. This is to be expected of an industrious and loyal worker.
The duty imposed upon an employer is to take reasonable care. The scope of the duty is limited to the area of foreseeable risk. See Finn v. The Roman Catholic Trust Corporation for the Diocese of Townsville (1977) 1 Queensland Reports 29, in particular Williams J at page 40 line 45 where His Honour said:
“If, at the material time, a reasonable employer, taking all reasonable care for the safety of his employees, would not have foreseen the particular injury to the employee which gives rise to the action, negligence cannot be proved. It is important when considering evidence said to be relevant to such issues to have regard only to what was considered reasonable and what was foreseeable at the material time. It is easy for both employers and Judges to be wise after an event, but hindsight cannot convert what was at the material time the taking of reasonable precautions into a failure to discharge the duty of care.”
I do not understand His Honour to be confining “the particular injury” to one which complies with the medical definition of the one the subject of the claim. The injury must be of the kind that is foreseeable.
Mr Boris Smolakovs holds a diploma in mechanical engineering. He is a consultant with Geoff McDonald & Associates Pty Ltd. He gave evidence on behalf of the plaintiff. In his expert opinion, a man of the plaintiff's weight, which was 57 kilograms, is at risk of suffering injury to his lower limb tendons if he was required to carry a load of some 35 kilograms down stairs. It was put to him by Mr Given, learned counsel for the defendant, at transcript page 40:
“Would you categorise that as a remote possibility?-- On my investigations here, I'd say it's more than remote.”
Mr Smolakovs was conveying that he did not agree with the proposition put to him and that, in his view, the risk was not remote.
But for this evidence, I would have found it difficult to be satisfied that the risk was such that the employer ought to have guarded against its happening. I accept his evidence and it follows that the plaintiff has discharged the onus resting upon him to establish on the balance of probabilities that his injury was caused or contributed to by the employer's conduct. In my opinion, there was a reasonably practicable alternative system available which the employer ought to have adopted.
In these circumstances, it is unnecessary to consider whether, despite the lack of clarity in the pleading set out above, the plaintiff is otherwise entitled to judgment on a claim for a breach of section 9 of the Workplace Health and Safety Act 1989.
It is submitted that a breach of this provision, namely that the employer must ensure the safety of the employee save where it is not practicable for the employer so to do, necessarily gives rise to a civil law action.
In the cases to which I have been referred, the point seems to have been conceded by the defendant without argument. See Rogers v. Brambles (1988) 1 Queensland Reports 212 and see also St Vincent's Hospital Toowoomba Ltd v. Hardie (unreported appeal 174 of '97) judgment 6 May 1998, but on this point see Thomas J in Finn (supra) at 40.
This matter is not beyond argument. For what it is worth, I do not think even if a civil action is available that the plaintiff is entitled to succeed if the defendant does not plead that it was not practicable to ensure the employee's safety or even if the defendant does not go into evidence on this issue. That matter, however, does not arise for decision in this case as I am otherwise satisfied that the defendant is liable at common law.
Mr Given did not submit that if I were to find in favour of the plaintiff that I might find he was guilty of contributory negligence. It follows from my findings above that he was not.
I give judgment for the plaintiff in the sum of $65,000.
...
HIS HONOUR: I order that the defendant pay the plaintiff's costs of and incidental to the action, including reserved costs, to be taxed on the scale appropriate for actions where the sum recovered is greater than $50,000.