DISTRICT COURT OF QUEENSLAND

1. [1]
   On 9 June 2000, the plaintiff sustained an injury to his left eye whilst working on the defendant’s property clearing lantana. That injury resulted in a 50 per cent loss of eyesight, translated as a 10 per cent impairment of the whole person. There is no contest that the plaintiff sustained such an injury on the defendant’s property. Furthermore, it is accepted that the arrangement between the plaintiff and defendant was one of independent contractor. The plaintiff sues in negligence, to recover damages for his injury, against the defendant.

2. [2]
   At an early stage of the trial the parties agreed that the relationship between the plaintiff and defendant was one of independent contractor, although I will refer to the evidence concerning this later, for it has some relevance to the ultimate arguments advanced by both parties.

3. [3]
   The plaintiff’s case is that, having moved from North Queensland in early 2000 where he had conducted a cleaning business, the plaintiff actively sought employment and saw an advertisement in a Cooroy shop for persons interested in clearing work on the defendant’s property. Although there was some little contest as to how the plaintiff and defendant met (which is of little or no consequence in the overall case), the plaintiff met the defendant to discuss the nature and extent of the work at the defendant’s property, which was located opposite the land which was to be cleared.

4. [4]
   The defendant denies the existence of any liability. He argues that because the plaintiff was an independent contractor, although accepting a degree of responsibility for the plaintiff’s safety, having assured himself that the plaintiff was indeed capable of performing the task requested, that was the end of and extent of the defendant’s liability. The defendant argues, in effect, that the plaintiff, although supplied with equipment to use, was responsible for his own safety and specifically for the provision of safety equipment or, at least, working in a method and manner that was safe for him.

5. [5]
   Much of the evidence in the case is not in dispute, including, as I have said, the incident resulting in the eye injury. However, the meeting between the parties prior to the commencement of the plaintiff’s work is of some importance and ultimately has repercussions on the view that I take of the evidence and the ultimate result in this trial.

6. [6]
   Some background relevant to the plaintiff is necessary for an understanding of the agreement which was eventually reached between the parties. The plaintiff was born in 1939 and had, for many years, worked in the timber and forest industry in New Zealand. He was, as he said in evidence, experienced in working in that industry and understood the nature of the work to be undertaken in that industry and the dangers involved, particularly in the felling of trees and all that that involved. The plaintiff had, he said, worked with head protective equipment, which was described as a helmet with a visor. The plaintiff also said in evidence that eye-protecting equipment, such as goggles, in humid conditions were likely to “fog-up” and, for practical purposes, were useless.

7. [7]
   At the first meeting between the parties prior to the plaintiff commencing work, it is common ground that the parties discussed the nature of the work, the extent of it in terms of expected duration, and where the clearing, which was of lantana, was to take place.

8. [8]
   A significant point of departure is discussions, or the absence thereof, in relation to safety equipment. On behalf of the plaintiff he, himself, said that there had been no discussions about safety equipment by the defendant, nor did the defendant offer to provide safety equipment, although the defendant did provide, which was also common ground, both brush-cutter and chainsaws for the purpose of the clearing operation. The defendant, on the other hand, swore that not only had he offered the plaintiff the use of some protective equipment, which he had in a shed on the property at which the meeting took place, but that the defendant refused that offer, saying, effectively, that he did not want the “rubbish” that the defendant’s equipment represented and showed to the defendant, in the motor-vehicle (the type of which the defendant could not recall), his own rather superior and substantial protective equipment, including boots, some form of head and eye protection, and gloves. The plaintiff absolutely denied that demonstration of the equipment had taken place.

9. [9]
   The original meeting between plaintiff and defendant occurred in April of 2000, and the plaintiff commenced work the next day, engaging, to assist him on various occasions, two of his sons. An employee of the defendant, a Mr Mal Rigby, also assisted the plaintiff. On 9 June 2000, the day of the incident, the plaintiff was working with his son, Ulrich, at the time and Mal Rigby. Neither saw the incident occasioning the injury to the plaintiff’s eye. The plaintiff, however, described that after a meal break he attempted to remove some lantana which had already been cut down. In pulling at the tangled branches of the cut lantana, one cane flicked backwards and caught his left eye. The following day he sought medical treatment at a local hospital. Soon thereafter, the plaintiff left for a short time to attend a family funeral in New Zealand and during that period was hospitalised, for the eye had become infected. On returning to Queensland, the plaintiff went directly to the Nambour Hospital, where the treatment commenced in New Zealand continued. Eventually the infection was successfully treated, but the eye was left permanently damaged. Dr Vandeleur, a specialist ophthalmic surgeon, examined the plaintiff and provided a report, which is part of Exhibit 1. The opinion may be summarised as the injury occasioned a 50 per cent impairment to the left eye, which translated as a whole person impairment of close to 10 per cent. Furthermore, the doctor considered that there was no loss of visual field in the left eye, which was assessed using various components of vision, and the statements made by the plaintiff to the specialist concerning difficulty with activities, such as pruning and handling cattle at close quarters, were “reasonable concerns or difficulties related to the impaired vision in his left eye”.

10. [10]
    The plaintiff claims general damages, loss of past income, for at the time of trial the plaintiff had retired. Special damages were agreed amongst the parties, as per Exhibit 2, in the sum of $3,192.85.

Independent Contractor

11. [11]
    The parties, at an early stage of the trial, indicated that they agreed that the nature of the relationship between the plaintiff and the defendant was that of independent contractor. The relationship between the parties is fundamental to the issue of liability in this case. The duty of care owed to a contractor is rather less than that owed by an employer to one of his employees^[1].

12. [12]
    A number of factors affect the determination of the nature of the relationship. In this case, according to both plaintiff and his son, Ulrich, a witness called in the proceedings, although the defendant indicated initially the nature of the work to be undertaken and from time to time would tell the plaintiff where the work was to be performed, the carrying out of that work and related activities were left solely in the hands of the plaintiff himself, who directed his sons, Ulrich and Eveleigh, as to what work was to be performed and where. Tax was not taken out of the money paid to the plaintiff on behalf of himself and his sons. The plaintiff provided the name “Ohiru” as a business name to which the invoices could be made out and cheques were to be paid for the work performed. Although the plaintiff was originally asked to provide his own equipment, the defendant agreed to provide that equipment, which included a brush-cutter and chainsaws, because the plaintiff said that, having recently arrived from North Queensland and having operated a cleaning business, he did not have that equipment.

13. [13]
    On the evidence, the plaintiff was clearly in control of the way in which he worked, the hours which he worked, the leave which he took at his own whim, as, for example, attending the funeral in New Zealand. On this and the other evidence available in the case, I am satisfied that the relationship between the parties was that of independent contractor.

The duty of care

14. [14]
    Despite the fact that the relationship between the plaintiff and defendant was that of independent contractor, nonetheless the defendant owed a duty of care to the plaintiff. The nature of the duty of care generally owed by that relationship characterised as independent contractor was discussed by the High Court in Stevens (supra).  Brennan J (as he then was) at 47 said:

“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 risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity.  The entrepreneur’s duty arises simply because he is creating the risk … and his duty is more limited than the duty owed 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 … 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.”

Wilson and Dawson JJ, assuming that a duty of care did exist, examined the extent of it and at 45 said:

“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 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 employees. ….Any such duty was, in effect, a duty to exercise care in the coordination of the activities of the various contractors.”

15. [15]
    The extent of the duty of care was recently analysed by Chesterman J in McDonnell and Anor v Mount Sugarloaf Forest Pty Ltd and Ors (2000) QSC 54.  His Honour said, at paras 24-26:

“The judgment of Mason J at 31 appears to go further and might be understood as suggesting that one who engages the services of an independent contractor is obliged to provide a safe system of work for the contractor as he would if he employed someone to perform the contracted task. Such a view is contrary to the opinions expressed by the majority of judges in Stevens and does not, I think, reflect the law. The Court of Appeal in CSR Limited v Wren [1997] 44 NSWLR 463 at 484 appears to be of the same understanding.

Apart from CSR, which was not a case involving contractors, I have not found nor been referred to any authority in which this aspect of Stevens has been considered.  The most comprehensive discussion of the principle underlying the imposition of duty on one who engages a contractor is found in the judgment of Brennan J. 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.

So understood the duty does not apply to either Sugarloaf or the defendant. The former did not engage contractors to perform potentially conflicting or overlapping activities which, without proper planning, might cause injury. It engaged the defendant to fell, snig and deliver logs to its mill. There was a gang of three to work an entire plantation. The defendant was chosen because he was recommended for his competence by another sawmiller. Sugarloaf ‘is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work’, per Brennan J who also pointed out that ‘the way in which the independent contractors chose to deal with the problem … was a matter for them.’ Having engaged a competent contractor Sugarloaf was not, as I understand the authorities, itself under a duty to provide a safe system of work for the performance of the contracted task.”

16. [16]
    These considerations in my view apply equally to the defendant in this case. He engaged a competent subcontractor. The plaintiff’s own evidence disclosed, and I accept this was communicated to the defendant, that he was a man experienced in the forest industry and that, although, as the plaintiff said, he regarded the job as rather more “domestic” and “backyard work”, nonetheless he portrayed himself as and was actually someone with the very sort of experience to have properly carried out the task. He appreciated also that there were risks associated with the task. The plaintiff was, in reality, in total control of the carrying out of the actual task. The defendant’s only input, once having appropriately satisfied himself as to the competence of the plaintiff, was to point out those places where the task was to be performed.

17. [17]
    On the evidence, which I accept, the plaintiff was responsible for how the task was carried out and when. In the performance of the task, although there was a discussion between the plaintiff and defendant as to rate of pay and the length of time expected to complete the task, nonetheless, the plaintiff had control.

18. [18]
    As will become apparent below, I accept, on the evidence, that the plaintiff actually actively encouraged the defendant to believe that he had expertise, especially in commercial forestry activities relevant to the task for which he was applying by a refusal to accept the domestic safety equipment, which the defendant had at hand, and indicated to the defendant his possession of rather more commercially suitable equipment, which he had at hand on the day of the original interview, and which, by inference, he had used in the past.

19. [19]
    There was no suggestion that the defendant would oversee, in any way, or exercise any other controls, other than those I have described, in the activities of the plaintiff. Furthermore, the very nature of the task, the clearing of the lantana, was something that needed, in terms of the carrying out of that task, to be assigned entirely to the plaintiff in terms of the manner in which the task was carried out. It follows, from what I have said and the statements in Stevens and McDonnell, that the plaintiff was responsible not only for the carrying out of the work, but for all matters associated with the safety of himself and his sons. 

20. [20]
    That Mr Rigby, who worked on some occasions with the plaintiff, was an employee of the defendant and therefore owed, by him, a higher duty, does not detract from or change the nature of the relationship and level of duty of care owed by the defendant to the plaintiff. That duty was discharged effectively, once the defendant had satisfied himself that the plaintiff had all the appropriate capabilities to carry out the task, including, as I have said, the possession of safety equipment.

21. [21]
    Further, it is worth mentioning that, although the defendant, on occasions, saw the plaintiff and spoke to him about his failure to use safety equipment, that does not change the nature or extent of the duty owed by the defendant to the plaintiff.

22. [22]
    From what I have decided, the fact that the defendant supplied the equipment to be used without complementary safety equipment does not change the duty of care owed by the defendant to the plaintiff. Specifically, it does not mean that the defendant, by supplying that equipment, was required thereby to supply that complementary safety equipment.

23. [23]
    Ultimately, the duty described by the majority in Stevens and in McDonnell by Chesterman J has scope for operation as between the defendant and the plaintiff in this case.

Significant issue as to credit

24. [24]
    In the event, because of the views I have formed as to the evidence in this case, it is largely irrelevant what particular duty of care was owed by the defendant to the plaintiff.

25. [25]
    There was much common ground in the evidence of both the plaintiff’s case and the defendant’s case, except on the issue as to whether there were discussions about the presence and use and offers made of protective equipment by the defendant. The plaintiff’s evidence was that he had not been offered protective equipment by the defendant and had not seen any such equipment at any time. The plaintiff’s two sons, Eveleigh and Ulrich, both gave evidence that they had not seen such equipment, but gave no evidence as to any conversations had between the plaintiff and defendant at the relevant time.

26. [26]
    However, it was not suggested on their evidence that they had been in a position to have heard, or were even present, when such conversations were said to have taken place by the defendant.

27. [27]
    The evidence of Ulrich was that he had never seen his father use protective equipment, other than a helmet, but that helmet did not include a visor.

28. [28]
    That evidence was contrary to the plaintiff’s evidence, who said that he had, in the past, been careful to ensure that others had used such equipment when he had worked in the forestry industry and that he had used such protective equipment, including visors, himself.

29. [29]
    The plaintiff denied a conversation wherein the defendant alleged that, upon the offer by the defendant of the use of his own domestic protective equipment, which included eye protective equipment, the plaintiff was said by the defendant to have rejected it, referring to the equipment possessed, allegedly, by the defendant as “rubbish”.

30. [30]
    The defendant’s evidence was really diametrically opposed on this topic. The defendant’s evidence was that not only had he offered the plaintiff the equipment which he possessed at the time, which included eye protective equipment, but that the plaintiff had actually shown the defendant his own superior equipment (at least that was the view of the defendant). That protective equipment, the defendant said, was indicated by the plaintiff in the back of his vehicle. The defendant could not, however, recall the type of vehicle which the plaintiff had in which the equipment was located. This conversation, the defendant alleged, occurred on the interview day, prior to the commencement of work by the plaintiff. In considering the veracity of the evidence I have taken into account the age of the plaintiff and the fact that I regarded him as a man of gentle and quiet disposition. On the other hand, the defendant is someone whose background and experience seemed rather more sophisticated. He was a forceful and, at times, dogmatic witness.

31. [31]
    The plaintiff, in my view, demonstrated nonetheless, in both the giving of the evidence and in his demeanour, some hesitation amounting to prevarication about his tax return for the year 2000. It is clear that the moneys paid to him were paid to a business name, Ohiru. Detailed cross-examination of the plaintiff concerning his taxation affairs for the year ending June 2000 was suggestive of the fact that he had not disclosed the income earned by him in relation to the work performed for the defendant. It is to be noted that during the course of the plaintiff’s evidence, upon being warned, the plaintiff refused to answer some questions concerning his taxation affairs for that year. I have not however taken this evidence nor the claim of privilege into account in the event in assessing the credit of the plaintiff.

32. [32]
    The defendant gave detailed and credible evidence as to the conversation concerning the offer of protective equipment and the plaintiff demonstrating his possession of his own protective equipment.

33. [33]
    To complete the picture of the plaintiff’s evidence it is important to record that the plaintiff did not request the defendant, at any time, to supply him with protective equipment. This is a factor which I have taken into account in my overall assessment of the credibility of the parties, which leads to the inference that the plaintiff indeed has his own protective equipment. Furthermore, the very clear impression I gained from the evidence of the plaintiff was that such protective equipment was, in the climatic conditions and circumstances in which he was working, likely to have hampered him, particularly with the use of goggles or a visor, for in his evidence he pointed out that in the circumstances in which he worked goggles would have been “fogged-up” because of heat and perspiration.

34. [34]
    I form the very clear impression from the plaintiff’s evidence that, had that equipment been available, which indeed I believe it was, the plaintiff had no intention of using that equipment because of the likelihood of it being uncomfortable to use.

35. [35]
    Having therefore had the advantage of seeing both parties and, furthermore, taking into the account the evidence of the employee Rigby, who gave evidence for the defendant, whose evidence was to the effect that there was protective equipment available at the shed on the property where the original conversation took place between the plaintiff and defendant, I am satisfied that the defendant’s version of events is correct. On that evidence, therefore, I am satisfied that the defendant did offer the plaintiff his own protective equipment; secondly, that the plaintiff refused the offer of that equipment; and, thirdly, that the plaintiff showed to the defendant his own equipment, which, in the circumstances, I accept was a representation by the plaintiff that he would use such equipment himself in the performance of the task.

36. [36]
    On the issue of the duty of care owed by the defendant to the plaintiff, I have concluded that the defendant discharged the duty of care which was owed by him, and that the plaintiff was responsible for the carrying out of the work and, incidental to that, his own safety in carrying out that work.

37. [37]
    Furthermore, on the view I have formed of the evidence in relation to the plaintiff’s possession of his own equipment and refusal of the defendant’s protective equipment, even if the defendant owed a higher duty of care to the plaintiff, the plaintiff’s specific rejection of the defendant’s equipment and implicit assertion that he would use his own equipment is sufficient, in my view, to satisfy any question as to whether, in those circumstances, any duty of care was owed by the defendant to the plaintiff. In my view, on the evidence, I have found that there was none.

38. [38]
    I therefore dismiss the plaintiff’s claim.