Jasmin v Matchglen Pty Ltd
[1999] QDC 270
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- Unreported Judgment
- Jasmin v Matchglen Pty Ltd[1999] QDC 270
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Jasmin v Matchglen Pty Ltd[1999] QDC 270
Jasmin v Matchglen Pty Ltd[1999] QDC 270
DISTRICT COURT OF QUEENSLAND |
CITATION: | |
PARTIES: | KENNETH GEORGE JASMIN (Plaintiff) MATCHGLEN PTY LTD (Defendant) |
FILE NO/S: | D3447 of 1997 |
DIVISION: | |
PROCEEDING: | |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 2nd December, 1999 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8/11/99 - 11/11/99 |
JUDGE: | McLauchlan QC, DCJ |
ORDER: | Judgment for Defendant |
CATCHWORDS: | Employee or independent contractor – duty owed by an employer to an independent contractor |
COUNSEL: | G Allan (Plaintiff) M O'Sullivan (Defendant) |
SOLICITORS: | Shine Roche McGowan (Plaintiff) Thompson Hannan (Defendent) |
- [1]The plaintiff was born in South Africa on 27 January 1938, and came to Australia in July 1981. In south Africa he had completed an apprenticeship as a carpenter and had worked in the building trade. He worked for a time in 1982 and 1983 as project manager for Harley Industries (Aust) Pty Ltd in the building industry, and, it appears, was on an invalid pension for some years thereafter.
- [2]He was employed, again as a project manager, by R.E.L. Enterprises Australia Pty Ltd from January 1988 to August 1990. On 2nd August 1994 he started work for the defendant, responding to a newspaper advertisement by “Southside Stairs” which is the business name of the defendant. That advertisement stated that the defendant was the fastest growing staircase manufacturer in Queensland, and that it needed to recruit subcontract installers to help cope with current forward orders and anticipated growth over the next few years. It also stated that applicants would need to have their own tools and an appropriate commercial vehicle. The plaintiff had an interview with Robert Hannaford of the defendant company in July 1994, and it was arranged that he should accompany a senior installer, Peter Toohey on a job, so that he could see what was required, and be assessed as to suitability. Toohey considered him to be a competent carpenter and suitable to be employed as a subcontractor for the installation of staircases in residential premises. He was told that he would have to provide all his own tools and vehicle and that he would need a mobile phone. In fact the plaintiff acquired a mobile phone on 1st August 1994, a day before he commenced work with the defendant.
- [3]It is not in doubt that early in the morning of the 22nd August 1994 the plaintiff was constructing a staircase at Lot 9, Meown Crescent, Cornubia, and while he was sawing a length of wood with a Makita power saw he suffered an injury to his left thumb. He was using his left hand at the time to hold the timber in position between two saw horses and the power saw became jammed and kicked back, cutting his thumb, which was subsequently amputated.
- [4]The plaintiff's claim is for damages for negligence and/or breach of a contract of employment or in the alternative breach of a sub-contract agreement and/or breach of statutory duty by the defendant. The pleading sets out particulars of the alleged negligence and/or breach of contract of employment and similar particulars in relation to the alleged breach of the terms of the sub-contract agreement. The breach of statutory duty alleged relates to s. 9 of the Workplace Health and Safety Act 1989.
- [5]It is necessary to decide, initially, whether the plaintiff stood in relation to the defendant as an employee or as a subcontractor, and thereafter to decide what duty, if any, was owed to him by the defendant, and whether the defendant was in breach of any such duty.
- [6]Before examining these questions it is necessary to say something about the credibility of the plaintiff. Part of the plaintiff's case, as presented, was that he was unable to, and did not, work for remuneration as a carpenter between October 1994 and August 1996, or later. He conceded that he was guiding a Mr and Mrs Silva in the construction of their home at Springfield, but said that he was not himself engaged in performing any building work on that site and that he was not employed or paid by Mr Silva to do so. It is no longer in doubt that in fact the plaintiff was working for remuneration during that period. Exhibit 6 is a Certification of Conviction which shows that on the 19th of March 1999 the plaintiff pleaded guilty in the Magistrates Court at Beenleigh to a charge of defrauding the Workers' Compensation Board of Queensland between the 18th day of November 1994 and the 31st day of August 1996. The relevant particulars of the offence are that he in fact engaged in callings as a renovator/builder/supplier of materials, etc. during the period in question and was not incapacitated as he alleged to the Board, during which time he was in receipt of workers' compensation to an amount of $66,960.03. He was sentenced to imprisonment for six months suspended after one month. He was further ordered to pay $36,400.00 restitution to the Workers' Compensation Board and $6,000.00 in costs. Pursuant to s. 79 Evidence Act 1977 in the absence of proof to the contrary, the plaintiff is to be taken to have committed the acts and to have possessed the state of mind (if any) which at law constitute the offence. No persuasive proof to the contrary was offered.
- [7]There is a further exhibit, Exhibit 30, being an account submitted by the plaintiff to Silva in respect of work done by him and charged at the rate of $22.00 per hour which is a clear indication of his working for remuneration during this period. Evidence was also given by Elizabeth Jasmin, the plaintiff's former wife, and Greg Baker, her son, as to work done by the plaintiff during this period. On 18th November 1994, Greg Baker, who had come to Brisbane for the wedding of his mother with the plaintiff, assisted him to construct a staircase at a house owned by one Son Doang at Forest Place, and saw him paid for what the plaintiff referred to as a “week's work”. Elizabeth Jasmin said that the plaintiff had gone back to work in October or November of 1994, initially working for Son Doang. He worked on that house up to Christmas on a daily basis. It was here that he met Silva, who was delivering some tiles to the construction site, and for whom he subsequently did work. He also did work at Son Doang's shop in West End, and in respect of this and the other work, charged $22.00 per hour for his services. Work began on the Silva's house at Springfield in February or March of 1995 and according to Mr Silva the plaintiff was employed on the site and earned $800 to $1,200 per week. That work ceased in about June of 1995 and thereafter the plaintiff did some work at the tile shop owned by Silva. There was a dispute concerning his bill and he subsequently issued a plaint against Silva. Again the evidence satisfies me that he was charging the sum of $22.00 per hour for his work. Elizabeth Jasmin gave evidence about other work which the plaintiff did from about Christmas 1995, at a variety of other premises, for which he was paid.
- [8]Elizabeth Jasmin also gave evidence that the plaintiff is in fact right handed, whereas he has contended throughout these proceedings that he is left handed.
- [9]I have no doubt, having seen and heard the witnesses, that Mr and Mrs Silva, Mrs Jasmin and Greg Baker are all witnesses of truth, and I have equally no doubt that the plaintiff has been deliberately untruthful in his evidence, concerning both his alleged left handedness and his alleged incapacity to work during a period following his accident.
- [10]The circumstances point strongly to the conclusion that the plaintiff stood in relation to the defendant as a subcontractor, not as an employee. The terms of the advertisements placed by the defendant and the evidence of Robert Hannaford and Peter Toohey combine to convince me that the parties themselves viewed the relationship as one between employer and independent contractor. Furthermore, there are many indicia of such a relationship, and virtually none consistent with the relationship of an employer and employee.
- [11]In Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16 at page 24, Mason J pointed out that a prominent factor in determining the nature of the relationship between a person who engages another to perform work and a person so engaged is the degree of control which the former can exercise over the latter. He went on to say however that the existence of control, while significant, is not the sole criterion by which to gauge whether a relationship is one of employment. There are a number of indicia which must be considered in the determination of that question including 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.
- [12]In this case the plaintiff was not on a wage or salary, he was paid a piecemeal rate for work which he performed and for which he submitted invoices. He was required to supply his own vehicle and all his own tools. The defendant supplied nothing but the material required in the construction of the staircases in the form of a kit which was either picked up by the defendant or delivered to premises for his use. The plaintiff filled out a taxation form appropriate to an independent contractor rather than to an employee and himself collected the form from a post office. The plaintiff had no fixed hours of work. He appears to have worked at his discretion, subject to arrangements made between the defendant and the builder of the particular premises at a particular time. The evidence shows that in fact he had worked on the job at Meown Crescent on the Sunday prior to the date on which he was injured, and he worked as he chose, on that occasion with the company of his dogs, and whilst watching television. He was not controlled or supervised as to the manner in which he did his work although there were inspections of the completed jobs as was natural, since the defendant was providing the construction of a staircase by contractual arrangement with the builder of various residential premises, and it would be necessary to ensure that the work had been properly done. There is no evidence that there was any discussion on the subject of sick pay, superannuation benefits or holiday pay, or any other matter indicative of an employer-employee relationship. The evidence points overwhelmingly, in my view, to the conclusion that the plaintiff was an independent contractor.
- [13]It follows from this conclusion that the plaintiff can not rely upon a breach of s. 9 of the Workplace Health and Safety Act 1989, whether or not it is correct to say that that section does not confer a private cause of action upon someone injured as a result of its breach: see Castle v Weeks [1999] QCA 450.
- [14]The remaining question on liability is whether or not, although the plaintiff was an independent contractor, the defendant owed him a duty of care for his safety in performing the work which he did in that capacity. Reference is made to Stevens v Brodribb Sawmilling Co Pty Ltd (supra) and Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487 for the proposition that a duty of care may be owed by an employer to an independent contractor. It is clear from these two authorities that the particular relationship between an employer and an independent contractor may be such that he is owed a duty of care by the defendant. In Stevens this arose because the defendant company was coordinating different activities upon a particular work site and a risk of injury to an independent contractor employed by it arose from that situation. It is useful to refer to the judgment of Mason J at page 31 where his Honour said:
“The interdependence of the activities carried out in the forest, the need for coordination by Brodribb of those activities and the distinct risk of personal injury to those engaged in the operations, called for the prescription and provision of a safe system by Brodribb. Omission to prescribe and provide such a system would expose the workers to an obvious risk of injury. Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to coordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system. Brodribb's ability to prescribe such a system was not affected by its inability to direct the contractors as to how they should operate their machines.”
- [15]In that case there were two sets of independent contractors working in the operation conducted by the defendant on the land in question. The defendant had the responsibility of coordinating those activities and it was a failure to exercise due care in that respect which rendered the employer liable for injury suffered by the plaintiff. In the present case there is no operation conducted by the defendant where there is a necessity to coordinate the activities of different groups of workers, be they employees or independent contractors. The residence in which the plaintiff was called upon to install a staircase was being built, not by the defendant, but by a builder. The defendant had no responsibility for coordinating activities at the building site. He therefore did not owe the plaintiff a duty of care arising out of such a responsibility.
- [16]Stevens thus provides one example of a situation in which an employer may have a duty of care to a person employed by him as an independent contractor. Another example is afforded in Climaze Holdings Pty Ltd. In that case, again, the plaintiff was found to be an independent contractor and not an employee. However the defendant was held to owe the plaintiff a duty to provide a safe system of work. The plaintiff had been engaged in a process of fixing sheets of metal wall cladding to the outside of an industrial structure, and he had utilised for this purpose an aluminium extension ladder. The work was being performed for the defendant, and although the plaintiff was an independent contractor viz-a-viz the defendant, under the particular arrangements which existed in that case the provision of scaffolding, when required, was the responsibility of the defendant. The decision whether scaffolding was necessary was made by the defendant or its servants, and the trial judge had found that the defendant “was well aware of safety considerations which required the use of scaffolding or other stable platforms for the use of workers at heights above the ground”. The plaintiff also had given evidence to the effect that he had been “working off ladders for years” and that he was sure that he would have been doing so “at times when a representative from the appellant saw him working”.
- [17]In the Court of Appeal it was concluded in light of these facts that it must have been obvious to the defendant that it was probable, if it supplied no scaffolding, that the plaintiff would use a ladder for the purpose of carrying out the work at the site at which the accident occurred. It was the use of the ladder which was the cause of the accident suffered by the plaintiff.
- [18]In the Court of Appeal at page 499 Steytler J said:
“In the end it seems to me that the learned trial judge was correct in his conclusion that the appellant owed a duty of care to the first respondent so as to ensure that a stable platform was used and that means were provided accordingly and that, by failing to do so, the appellant breached that duty.
It was apparent, on the findings of fact made by the learned trial judge, that the appellant could reasonably have foreseen that there was a real risk that the use of an untied ladder to carry out the work performed by the first respondent would result in an injury of the kind which he sustained. It seems to me also that a relationship of proximity existed between the appellant and the first respondent sufficient to ground a common law duty of care.”
- [19]Again, that case is distinguishable from the present. It was not any part of the relationship between the defendant and the plaintiff that the defendant should provide any tools or equipment for the use of the plaintiff in carrying out the work he was required to do. The plaintiff supplied all his own equipment. There is no respect in which the defendant assumed any responsibility for any aspect of the manner in which the plaintiff did his work or the equipment which he used. It is true that the defendant was concerned that equipment used by its subcontractors should be in good condition, and stated in a memorandum to its subcontractors that unless this was done with respect to leads and electrical machinery further subcontracting work would not be offered. That is, in my opinion, quite a different situation from one in which either equipment is provided by the employer who thereby undertakes an obligation with respect to its safety, or suitability for the work, or where the employer directs the worker to take certain steps in the exercise of a power to control the worker in the way in which he does his work. The power proposed to be exercised by the defendant in the memorandum referred to, was not a power to control the plaintiff with respect to his safety procedures, but a power to refuse to further engage him unless he undertook certain safety measures.
- [20]In my view it is clear that the plaintiff was an independent contractor viz-a-viz the defendant, so that the complex of duties owed by an employer to an employee was not owed to him by the defendant. There is also no aspect of the particular relationship between the plaintiff and the defendant which raised a duty of care on the part of the defendant for the safety of the plaintiff in carrying out his work, and in particular there was no duty to provide a safe system of work for the plaintiff. The injury suffered by the plaintiff was not therefore caused by any breach of duty owed to him by the defendant, and the plaintiff must fail in his action for damages.
- [21]The plaintiff was aged 56 at the date of the accident and, as I have said, I accept that he is right handed, and the accident was suffered to his left hand. The injury was effectively an amputation of the thumb on his left hand and this occurred in a situation where he had many years earlier suffered an amputation of an index finger. Dr Stephen Coleman, a specialist in surgery of the hand and upper limb, noted that the plaintiff had lost his index finger as well as the thumb through in the interphalangeal joint, but that the middle, ring and little fingers are normal. He said:
“His current disability is related to the amputation of the thumb through the interphalangeal joint which amounts to 75% loss of function of the thumb which is equivalent to 30% loss of function of the hand.
The index has been amputated through the distal joint and amounts to 45% loss of function of the index finger or 11% loss of function of the hand. In total, therefore he has lost 41% loss of function of the hand which is equivalent to 37% loss of function of the arm.”
- [22]The amputation of the plaintiff's left thumb was revised on 9th May 1996. On that occasion the surgeon removed neuromas from under the skin which were causing sensitivity and discomfort, and the distal phalanx stump was removed. He was reviewed on 20th May 1996, when the wound had healed, and the sutures were removed. According to the doctor there was no further sign of a neuroma and the joint was much less tender following the surgery. He still had difficulty pinching and lifting a heavy object because of decreased sensation but it was thought that this would gradually improve over time. No further treatment is recommended for him. The loss of function of his arm is permanent and further surgery is not recommended. In his last report, dated 13 July 1998, Dr Coleman opined:
“Overall he has quite a reasonable functioning stump considering his injury, and as stated above he has a significant disability assessment of his hand. I do not think any further skin surgery will help the apparent tightness on the radial side of the thumb. Also as noted above, he has had a vast improvement on the original presentation in 1996. I would not recommend any further surgery and would consider his condition to be stable. There does appear to be some reluctance in a return to work, and I am unsure whether rehabilitation will get him back to the workforce. There is certainly no medical reason that he could not do so, and I have many patients with much worse injuries who are back at work in manual activities. It is only by a keenness to return to work and a positive attitude that he can get back to the workforce. He would be required to do a job which did not involve firm gripping or pressure on the left thumb. Unfortunately he has little training and this is one of the main limitations on his return to the workforce.”
- [23]The two injuries to the plaintiff's hand can be, and have been, discretely assessed by the doctor, and it is not the case that one of them is compounded by the other. In my opinion the defendant would be liable to compensate the plaintiff only in respect of the loss of function of the thumb which is equivalent to a 30% loss of function of the hand. Having regard to the plaintiff's age at the time of the accident and to the fact that he is right handed I consider that an appropriate assessment of damages for pain, suffering and loss of amenities is a sum of $25,000. The plaintiff received a disability settlement of $19,610. He would be entitled to interest on no more than $16,000 of the amount awarded for pain, suffering and loss of amenities, and the result is that no interest is allowed.
- [24]With respect to past economic loss I infer from the evidence that the plaintiff was earning a net amount of approximately $500 per week. He should be compensated for that loss for the three month period from the 22nd of August 1994 up till the time he was once again engaged in gainful employment and it is reasonable to allow a further four weeks in respect of the second operation on his thumb. That is a total of 16 weeks and produces a figure of $8,000. Interest is not sought on that sum, no doubt because of the fact that the plaintiff was in receipt of workers' compensation benefits during the period. There is no claim for past economic loss beyond the period I have mentioned nor is there any claim in respect of future economic loss. With respect to the Griffiths v Kerkemeyer assessment I will allow one hour per day for four months at $10 per hour, i.e. approximately 120 days, producing a figure of $1,200. I would allow interest on that amount at 2% per annum for five years amounting to $120.
- [25]Special damages as itemised in the WorkCover schedule amount to $2,454.69 and in addition to that I will allow the plaintiff a further $500 in respect of travel expenses and pharmaceuticals. The Fox v Wood component amounts to $9,351.90.
- [26]Damages are thus assessed in the sum of $46,626.59 calculated as follows:—
Pain, suffering and loss of amenities | 25,000.00 |
Past economic loss | 8,000.00 |
Griffiths v Kerkemeyer | 1,200.00 |
Interest thereon | 120.00 |
Special damages paid by WorkCover | 2,454.69 |
Other special damages | 500.00 |
Fox v Wood | 9,351.90 |
$46,626.59 |
- [27]In the event that the plaintiff had established a liability on the part of the defendant to compensate him for his injuries, the amount so assessed would have to have been reduced by the amount refundable to WorkCover, which, since it is greater, would have resulted in a judgment for the defendant. That result follows, however, from the plaintiff's failure in any event to establish any such liability on the part of the defendant.