Valentine v D & C Masters Painters & Decorators Pty Ltd
[2016] QDC 203
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- Unreported Judgment
- Valentine v D & C Masters Painters & Decorators Pty Ltd[2016] QDC 203
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Valentine v D & C Masters Painters & Decorators Pty Ltd[2016] QDC 203
Valentine v D & C Masters Painters & Decorators Pty Ltd[2016] QDC 203
DISTRICT COURT OF QUEENSLAND
CITATION: | Valentine v D & C Masters Painters & Decorators PL [2016] QDC 203 |
PARTIES: | SHANE MICHAEL VALENTINE (plaintiff) v D & C MASTERS PAINTERS & DECORATORS PTY LTD (ACN 120 083 267) (first defendant) and STATE OF QUEENSLAND (second defendant) |
FILE NO/S: | D824/14 |
DIVISION: | District Court of Queensland |
PROCEEDING: | Civil |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 11 August 2016 |
DELIVERED AT: | Maroochydore District Court |
HEARING DATE: | 20 - 21 June 2016 |
JUDGE: | Robertson DCJ |
ORDER: | The plaintiff’s claim is dismissed. The plaintiff to pay the second defendant’s costs of and incidental to the claim to be assessed on the standard basis; and the first defendant’s costs on the same basis but only from the 18.3.14. |
CATCHWORDS: | EMPLOYMENT LAW: where plaintiff was employed as a painter to paint a housing commission home by first defendant who had contracted with the second defendant for this purpose; where plaintiff slipped on an entry mat at front door upon leaving the residence on the third day and suffered agreed loss and damage; where both defendants acknowledged that they owed a duty of care to the plaintiff respectively as his employer and the owner of the house; whether the plaintiff could establish a breach of the duty of care; whether the risk of slipping was forseeable |
Legislation considered Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B & 305C Cases Dillon v Hair [2014] NSWCA 80 Fox v State of Queensland [2016] QDC 146 Seage v State of New South Wales [2000] NSWCA 328 | |
COUNSEL: | J.S. Miles of Counsel for the Plaintiff C.S. Harding of Counsel for the First Defendant A.L. Marks of Counsel for the Second Defendant |
SOLICITORS: | Stirling Law for the Plaintiff Kaden Boriss for the First Defendant Crown Law for the Second Defendant |
Introduction
- [1]The plaintiff, Shane Valentine (Mr Valentine) is an experienced painter and decorator. On 28 March 2012, he was working as an employee of the first defendant (Masters) painting internally a housing commission house at 61 Pearse Street, Keparra (the property). The house was one of a number owned by the second defendant (the State) which had contracted with Masters to paint the houses. At that time the property was tenanted by Judith Callaghan (Ms Callaghan) who had lived there as a tenant of the State for over two decades.
- [2]As Mr Valentine prepared to leave the property at the end of his day’s work on 28March at around 4.00 pm, and after he had stored his gear in the laundry, he walked to the front door with the intention of exited the house and locking the door.
- [3]When he had commenced the job on 26 March, he had arranged with Ms Callaghan to collect the key from the washing machine in the laundry in the morning and to return it there after securing the house at the end of each day’s work. She was in full-time employment at the time.
- [4]As he had done on the two previous days, he walked around a large floor rug (in the approximate position as depicted in photographs 3 and 4 in Exhibit 9 which were taken on 13 November 2014); he then turned right at the edge of the rug and proceeded to walk along the polished wood floor towards the front door. It was his practice to leave by that door each afternoon after having locked it. He reached with his left hand to the handle of the security door which opened outwards, intending to grab the handle of the wooden door which opened inwards and to pull it shut as he walked through the door. He described what then happened in these terms:
“All right continue on if you would, just describing your path towards the door?--- once I’d walked around the mat, around the main rug and coffee table and proceeded towards the door, and that’s when – just in the motion of putting my left hand out to open the screen door so I could grab the timber door, I placed my left foot on the mat and the mat’s just gone out from under me and I was just able to stop myself from landing completely on the ground by grabbing the door jam and my right arm landed on the couch and that was right next to the timber door.
Alright. And what happened as you arrested your fall?--- I just- instant pain in my lower right-hand side of my back. Yeah. Just excruciating pain.
What did you do then?--- I got to my feet and I remember just standing there for a second and I used my foot to drag the mat back out from under the door and then just closed the door and slowly made my way back to the laundry to put the key away and then to my car, where I waited for the pain to subside a bit before I could even get in my car to drive home.”
- [5]As directed by his employer he had been wearing steel capped work boots.
- [6]He described the mat at the front door as brown in colour, “like a carpet with, like, loop pile carpet”. He was not able to describe the underside of the mat at all. He said he did not take much notice of the mat because of the pain. He did not see or touch the underside of the mat.
- [7]He said he used his foot “to drag the mat back out from under the door”. After he slipped, and before he pulled it back into place, he described the mat as “… like, one roll up, pushing hard against the door, and the rest of the mat was under the door, scrunched up somehow, like, behind the door… .” He recalls it being difficult to “scrape” back because it was caught under the door.
- [8]It is common ground that as a result of the fall he sustained an injury to his lower back which required surgical intervention, and damages are agreed in accordance with Exhibit 1. Liability is in issue.
- [9]Both defendants accept that they owe the plaintiff a duty of care – Masters as his employer, and the State as the occupier of the building; however both dispute that they have breached that duty of care.
The central issue
- [10]The real issue centres on whether Masters and or the State should have identified the door mat as a hazard. Essentially, Mr Valentine asserts that it is Masters failure to identify the mat as a risk of injury to him and then remove it that constitutes a breach of its duty of care. The breach of duty alleged against the State as occupier of the property is essentially the same, and brief reference will be made later to the principles that govern the breach of duty of care of an employer to an employee and of an occupier to a class of people such as an employee of an entity contracted by the occupier to perform services in relation to the property.
The evidence
- [11]Mr Valentine also relied on the evidence of Justin O'Sullivan an accepted expert in ergonomics and safety issues. Mr O'Sullivan prepared two reports. The first, Exhibit 8 is the subject of an objection by Mr Harding. One of the real difficulties for the plaintiff is his inability to describe the mat other than in very general terms. It is evident that he was on Workers’ Compensation after the incident for some time, however there is no evidence if anyone inspected the property and the mat soon after the incident. Ms Callaghan, clearly the person best able to describe the mat, was not aware that Mr Valentine had been injured or that it was as a result of slipping on her front door mat for (I infer) some years after the incident.
- [12]Mr Valentine told Mr Harding that he was first asked to think about the mat when asked by his solicitor, and he connected this with the involvement of Mr O'Sullivan. He went to Bunnings and found some mats that he thought looked like the mat “as being as close as (he) could recall”. He took some photos of the mats (Exhibits 3 and 4) which are reproduced at page 5 of Mr O'Sullivan’s first report. That report indicates that Mr O'Sullivan met Mr Valentine at his solicitor’s office on 15 May 2014. Mr Valentine thought it was 12 months to two years after the incident when he was first asked to think about the mat, so that would have been sometime prior to 15 May 2014. The problem with the first report is that Mr O'Sullivan did not have access to the property. He purchased what he thought were similar mats to the ones photographed by Mr Valentine and he then tested those mats on the polished floor of his own home. The mats he chose (depicted at page 6 of Exhibit 8) have fabric or sisal backing. Mr Harding’s point is that the opinions expressed in the report have little or no probative value because the testing was not done on the property, and the only mats tested had fabric or sisal backing.
- [13]I think there is merit in his objection for that reason, however, the report is otherwise useful in relation to the central issue so I will confirm it as Exhibit 8 and part of the evidence. As can be seen from the table at page 9, by reference to research relating risk factors for lower back injury to incidents, slipping is well down the list, being only 4 per cent in relation to that particular body of research.
- [14]The nub of Mr O'Sullivan’s opinion at that stage is expressed at pages 10-11 of Exhibit 8 by reference to the relevant Australian Standard for reduction of slip hazards. He refers to extracts from the Standard e.g. “slip resistant door mats at entrances are recommended. These should be secured or large enough to remain in place” and; “rugs and mats may slip on hard surfaces so consideration should be given to providing a slip resistant interface between the rug and the floor surface”.
- [15]Mr O'Sullivan opines:
“The type of mat identified by Mr Valentine is likely to slip on a polished timber floor if stepped onto at normal walking speed and even more so if changing direction as the feet need to decelerate the body as it changes direction. The likely COF (coefficient of friction) between these types of mats and a polished timber floor is less than recommended for safe ambulation, as discussed below.
- [16]He tested the coefficient of friction on the mats he had purchased at his home. These results are of little probative value however, at page 11 of his report, by reference to the relevant Australian Standard for slip resistance, measurement of existing pedestrian surface materials, he produced from the Standard Table 2:
TABLE 2
INTERPRETATION OF DRY FLOOR FRICTION RESULTS
Floor Friction Tester Mean Value | Notional* contribution of the floor surface to the risk of slipping when dry |
≤ 0.40 | Moderate to very low |
≥ 0.40 | High to very high |
*The term ‘notional’ has been used to highlight the need to consider all potential contributing factors to a slip incident.
NOTE: F4 a ‘moderate to very low’ interpretation, each individual test result shall be equal to or greater than 0.35.”
- [17]Ms Callaghan gave evidence as part of the State’s case. She has lived at the property for 26 years. She describes the floors as polished wooden floors but well worn. She was aware of an inspection undertaken by Mr O'Sullivan (with Mr Valentine present) on 13 November 2014 which was the subject of Mr O'Sullivan’s second report dated 9 January 2015 - Exhibit 9.
- [18]She said that the rubber backed blue mat at the front door on that occasion was very similar to the mat in place on 28 March 2012, and in the same position (see photos 5 and 6 of Exhibit 9). She said that throughout her tenancy she had always had rubber backed mats at the front door. She was in the habit of changing the mat every two years. She recalled that at the time of the incident, the door mat was very similar to that depicted at and inside the front door in the photographs in Mr O'Sullivan’s second report; it was 900 x 500 mm, green with short pile. She described the backing as thin rubber backing similar to that depicted in Exhibit 24. The rugs tested on 13 November 2014 (Exhibit 7 and 11 – also purchased by Mr O'Sullivan), were nothing like the mat she had at the front door. She said in the time she had lived at the house no-one to her knowledge had slipped on the front door mat including children.
- [19]Mr O'Sullivan conducted tests on the floor at the property on 13 November 2014 and, in relation to the mats he brought to the inspection, the COF was between 0.23 and 0.27. He also tested the rubber backed mat, and the COF was between 0.35 and 0.37. A “heel angle test” (designed to replicate the process described by Mr Valentine), produced a COF of 0.36. As a consequence, and by reference to the clear words of the NOTE to Table 2, the risk of slipping was properly assessed as “moderate to very low”. In cross-examination he properly conceded that a rubber backed mat would be recommended and present as a much lower slip risk than a sisal or fabric backed mat.
- [20]Ms Callaghan’s evidence is accepted. Indeed it was not challenged by Mr Miles. She was a forthright witness, who made concessions such as in relation to the polished floor when worn (as she said it was) she accepted that it may be more slippery.
- [21]Mr Masters gave evidence that he inspected the property when he quoted for the job. After his quote was accepted, he had another employee conduct and prepare a safe work method statement which is Exhibit 14. This employee was Mr Mense. He did not inspect the property himself. He relied on information from Q Build and Mr Masters.
- [22]On the day Mr Valentine commenced work, the 24 March, Mr Masters came to the property but I accept that he did not undertake any real inspection. He walked from the front door through to the kitchen. Mr Valentine said that on that first day, Mr Masters turned up with some gear, and they spoke with the tenant and made arrangements about access. He said that on the three days he was there his routine was the same: he got the key from the laundry (except for the first morning), he would open the front door, proceed through the house and unlock the back door and commence work. At the end of the first and second day he exited by the front door with no difficulties.
- [23]Q Build had identified all houses as an asbestos risk because of their age and there was some preliminary training on that issue.
- [24]In cross-examination by Mr Miles, Mr Masters said that he had been a painter and decorator since he was 16. He said he had painted in premises with polished floor surfaces and he accepted that it was necessary to use drop sheets to protect floors.
- [25]As I understand the plaintiff’s final position, it is his case that even if I conclude that the mat in place was as described by Ms Callaghan, there was still a reasonably foreseeable risk of someone like the plaintiff slipping and suffering significant injury.
- [26]There is no reason for me not to accept Mr Valentine’s evidence as to what occurred. He was not challenged about what happened e.g. by reference to Workers’ Compensation forms he must have completed very soon after his injury.
- [27]Mr Miles relies on concessions made by Mr Masters in cross-examination which he submits were relevant to the likelihood of a risk of the incident occurring and significant injury resulting. Mr Miles was good enough to encapsulate this aspect of his argument in a supplementary written submission dated 24 June 2016. His references in the transcript to various answers to Mr Masters confirms my impression at the time, that the witness was simply conceding the obvious i.e. that people do trip on door mats. His answers were often highly qualified e.g. “I’m sure that’s possible”; “I suppose so”, “it probably does”. This has to be measured against his evidence that he had heard of “people” tripping on door mats, but he had no recollection of any of his workers slipping over many decades, except for Mr Valentine.
- [28]Exhibit 10 is clearly directed at the risks that a painting contractor would ordinarily anticipate in relation to its employees. The difficulty here for Mr Valentine is that even if Mr Masters had noticed the mat, it would not have presented as any risk. Although an occupier liability case, and more relevant to the case against the State, the case of Dillon v Hair [2014] N.S.W.C.A 80 is an example where an occupier moved an obviously degraded mat from outside the house to the inside and placed it on a polished wooden floor. The danger to people entering and slipping was therefore obvious.
- [29]On my factual findings here, this mat was ubiquitous, and even on Mr O'Sullivan’s evidence a moderate to very low risk of slip, and an appropriate response, greatly reducing the risk of slipping. The statement of MacFarlane JA (with whom Tobias JA and James J agreed) in Seage v State of New South Wales [2000] NSWCA 328 at [32] is apposite here:
“[32]It would be a large step to take to find as a general proposition that employers have an obligation to warn or take other precautions in relation to everyday activities in which employees might incidentally engage in the course of their employment, being activities which if not performed with care might lead to injury. Should employers reasonably be expected to warn employees not to cut themselves when using knives in the staff kitchen? Or not to scold themselves when pouring water which they had boiled for their tea or coffee? Or to be careful when ascending or descending stairs? Or not to bump into furniture? C F Phillis v Daly (1988) 15 NSWLR 65 at 74 at B-C; Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at 177.”
- [30]Mr Miles referred to Exhibit 10 in his submissions, a publication of workplace health and safety Queensland which Mr Masters said he had seen and read at least in part.
- [31]In relation to the circumstances here, there is an oblique reference to floor surfaces and usually that is in the context of obvious dangers e.g. contaminants or water on the floor, or damaged floors. Mr Masters did not notice the mat. There was nothing about it to identify it as a slip risk. Obviously, it would have been easy to remove it, if it was identified as a risk. It cannot be overlooked that Mr Valentine, an experienced painter, had walked over the mat on his evidence on at least three occasions without incident. If Mr Masters had noticed the mat, and he did not, and if he asked the tenant if it was a risk he would have been told that for two decades no-one had slipped on the mat.
- [32]Mr Finch, who was, at the time, a Senior Estimator for Q Build, did the assessment on its behalf concentrating on the work sites and the estimates of costs. He did not visit the site. He accepted fairly that he did not really do a risk assessment. He acknowledged that on-site risks were for the approved contractor to assess.
The law
- [33]I gratefully adopt for present purposes the relevant principles as set out by Her Honour, Judge Bowskill QC, DCJ in Fox v State of Queensland [2016] QDC 146 paragraphs 67 to 74.
“[67]At common law, an employer owes a duty to take reasonable care for the safety of its employees. The duty does not oblige the employer to safeguard employees completely from all perils. As explained by Windeyer J in Vozza v Tooth & Co Ltd (at 319):
‘For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.’
[68]Under the common law principles, in considering whether there has been a breach of the duty of care owed, it is first necessary to consider whether a reasonable person in the defendant’s position would have foreseen the risk of injury and, if so, to determine what a reasonable person would do by way of response to the risk.
[69]The determination of whether there has been a breach of duty in this case must be considered by reference to ss 305B and 305C of the Workers’ Compensation and Rehabilitation Act 2003, which operate against the background of the common law principles, but modify them to an extent.
Application of s 305B
[70]Under s 305B(1), a person does not breach a duty to take precautions against a risk of injury to a worker unless:
- (a)the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)the risk was not insignificant; and
- (c)in the circumstances, a reasonable person in the position of the person would have taken the precautions (as to which, s 305B(2) is relevant).
[71]Each of the elements of s 305B(1)(a) to (c) are to be judged from the viewpoint of the defendant, in the circumstances that were known, or ought to have been known, to the defendant at the time of the alleged injury. The analysis must be undertaken prospectively; not retrospectively with the wisdom of hindsight.
Foreseeability?
[72]The identification of the risk of injury is central to the assessment of liability, because that informs what a reasonable response to the risk would be. The risk must be defined taking into account the particular harm that materialised, and the circumstances in which that harm occurred. However, it is not confined to the precise set of circumstances in which the plaintiff was injured. Rather, what must be reasonably foreseeable is ‘the nature of the particular harm that ensued, or, more relevantly, the nature of the circumstances in which that harm was incurred’. ……..
[74]As s 305B(1)(a) makes clear, under the legislation a foreseeable risk is a risk of which the defendant knew, or ought reasonably to have known. Of an identically worded requirement in s 5B(1)(a) of the Civil Liability Act 2002 (NSW), in Benic v New South Wales [2010] NSWSC 1039 at [92] Garling J said:
‘… the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant's position and the obviousness or the likelihood of the event happening when using common sense.’” (citations omitted)
- [34]The common law governs the liability of the State. It is not an issue that the State owed Mr Valentine a duty to take reasonable care to avoid foreseeable risk of injury to him.
Conclusion
- [35]My factual findings lead inevitably to the conclusion that Mr Valentine has not satisfied me that the risk that he would slip on the front door mat and sustain an injury was foreseeable, that is, it was a risk of which either Masters or the State knew or ought to have known. Even if a detailed risk assessment had been undertaken either by the employer or the State, the mat would not have been identified as a risk.
- [36]As I have noted the mat as described by Ms Callaghan was ubiquitous in the sense that it was the type of mat one would expect to see at the front door of residential and commercial premises as a matter of course. There was nothing about the mat that called for it to be inspected. Had Mr Masters inspected it, he would have found that it was rubber based, exactly the type of mat recommended for that purpose by Mr O'Sullivan. If he (or the representative of Q Build) had enquired of the tenant, she would have told them that a mat like that had always been in place and no-one had ever slipped. The fact that Mr Valentine did slip is not to the point. Foreseeability is to be judged prospectively, from the point of view of the defendant, in circumstances that were known or ought to have been known at the time of the injury. It follows that the plaintiff’s claim is dismissed.
- [37]I invite the parties to make written submissions on costs (if not agreed), and I am happy to make a decision on this issue on the papers if the parties agree.