Spiteri v Monduran Aviation Pty Ltd
[2002] QSC 315
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- Notable Unreported Decision
- Spiteri v Monduran Aviation Pty Ltd[2002] QSC 315
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Spiteri v Monduran Aviation Pty Ltd[2002] QSC 315
Spiteri v Monduran Aviation Pty Ltd[2002] QSC 315
SUPREME COURT OF QUEENSLAND
CITATION:Spiteri & Anor v Monduran Aviation Pty Ltd & Ors [2002] QSC 315
PARTIES: FRANCIS JOHN SPITERI
(First Plaintiff)
and
KYM JOY PETERS
(Second Plaintiff)
v
MONDURAN AVIATION PTY LTD
(First Defendant)
and
JAMES JOHNSTON MULLETT
(Second Defendant)
and
MARK DE LACEY
(Third Defendant)
and
JAMES MULLETT and JOY MULLETT AS ADMINISTRATORS OF THE ESTATE OF IRVING JAMES MULLETT (deceased)
(Fourth Defendant)
FILE NO:S279 of 2000
DIVISION:Trial Division
DELIVERED ON:9 October 2002
DELIVERED AT:Rockhampton
HEARING DATE:8, 9, 10, 11, 12 July 2002
JUDGE: Dutney J
ORDERS:Judgment for the first plaintiff against the second defendant in the sum of $121,256.77.
CATCHWORDS:NEGLIGENCE – PERSONAL INJURIES – CONTRIBUTORY NEGLIGENCE – where duty of care owed to plaintiff – breach – where plaintiff failed to take reasonable care for his own safety – where reckless disregard for personal safety – where plaintiff fell from an insufficiently supported ladder
Husher v Husher (1999) 197 CLR 138, followed
Muller v Cherrie [2000] QSC 330, followed
Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155, followed
Bradshaw v McEwans Pty Ltd (unreported – High Court – 27 April 1951), followed
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, considered
COUNSEL:Mr J Webb for the Plaintiff
Mr G O'Driscoll for the First, Second, Fourth and Fifth Defendants
Mr De Lacey (in person) for the Third Defendant
SOLICITORS:Suthers Lawyers for the Plaintiff
McCullough Robertson Hancock for the First, Second, Fourth and Fifth Defendants
[1]Frank Spiteri, the first plaintiff, was on a ladder which fell from near the roof of an aircraft hangar to the concrete floor on 10 June 1997. He was then 38 years old having been born on 25 May 1959.
[2]At the time of the fall Mr Spiteri was erecting a spray painting booth or tent in the hangar. Mr Spiteri was a spray painter.
[3]Mr Spiteri had been a spray painter since commencing his apprenticeship in 1976. He qualified as a spray painter in 1980. For some time Mr Spiteri conducted his own business under the name “Frank’s Panel and Paint” in Bundaberg.
[4]In 1996 Mr Spiteri suffered injury in a motor vehicle accident for which he brought litigation which ultimately settled. At about the same time he commenced having marital difficulties. As a result of these difficulties Mr Spiteri was suffering disabling depression. He felt unable to carry on the business and sold it in 1997. Despite these problems Mr Spiteri had largely recovered by the time of the events I am considering and neither was likely to have any material medium or long term effect on him.
[5]Following the sale of the business Mr Spiteri proposed moving to Mackay to start panel beating and spray painting there with his new partner, Kym Peters[1]. At the time of the sale of the business Mr Spiteri was receiving money from an insurance company under a sickness and accident policy as a result of his depression.
[6]The move to Mackay was put in place and a house rented. Before the move was complete, however, Mr Spiteri was approached by James Johnston Mullett, the second defendant (“Jim Mullett”). Mr Mullett and his wife had started an aircraft business on the family property, Monduran Station in the early 1990s. The business was involved in aeroplane maintenance and sales. The business was conducted through the first defendant, Monduran Aviation Pty Ltd. There was an existing airstrip on the station and a number of hangars were constructed. In one of these a Mr Mondolo had conducted an aeroplane spray painting business. Mr Mondolo had recently left Monduran Station. Mr Mullett needed a spray painter to allow him to continue his aeroplane maintenance business.
[7]I accept Mr Spiteri’s evidence of the first conversation he had with Mr Mullett. Mr Mullett offered Mr Spiteri the opportunity to set up a spray painting business in the hangar previously occupied by Mr Mondolo. There were several discussions between Mr Mullett and Mr Spiteri. The exact terms of those conversations are not material. The effect was that Mr Spiteri would operate out of the hangar. He would be the proprietor of the spray painting business and would pay rent for the premises. Monduran Aviation Pty Ltd would supply the work.
[8]An essential item of equipment for the spray painting operation was the spray painting booth. In the case of aeroplanes the booth is in the nature of a canvas tent erected inside the hangar. When Mr Mondolo had operated the business he had owned such a tent but had taken it with him when he left. Much of the discussion and one of the critical issues in the trial concerned the replacement tent.
[9]Mr Mullett wanted Mr Spiteri to buy his own spray booth. Mr Spiteri was unable to do so because his financial position was adversely affected by the matrimonial difficulties he had recently gone through. Mr Mullett accepted that position and ultimately he agreed to buy the spray booth and charge an additional amount to Mr Spiteri as a result. There was no agreement as to whether this was to be rent for the spray booth or some sort of terms purchase. Neither side could give coherent evidence on this. In any event it is clear that Mr Mullett ordered the spray booth from an upholsterer in Bundaberg, a Mr Fawkes, without reference to Mr Spiteri. In any event, Mr Spiteri had no experience at all of painting aeroplanes and hence insufficient knowledge to supply tent specifications to the manufacturer.
[10]I prefer Mr Spiteri’s recollections as to how the booth came to be in the process of erection on 10 June 1997. Mr Spiteri checked on the progress of the booth while he was in Bundaberg on other business. He says that Mr Fawkes told him it would be finished by the morning and to return with a cheque. Mr Spiteri asked when Mr Fawkes was going to erect the booth. Mr Fawkes replied that he wasn’t. After some initial surprise, Mr Spiteri asked Mr Fawkes how the booth was intended to be erected. Mr Fawkes told him that he would need a pipe frame to go inside the tent to support it. He would also need wire or rope of some kind to hang it from the rafters in the hangar. Mr Fawkes told Mr Spiteri how much pipe he would need and what gauge and Mr Spiteri purchased the pipe before leaving Bundaberg. Mr Mullett was told the upholsterer would not be erecting the booth and that a cheque was required the following day. As to Mr Fawkes not erecting the tent, Mr Mullett said words to the effect of:
“Yes, I know. That’s not a problem. We’ll get all the guys together and we’ll put the booth up.”
[11]Mr Spiteri also gave evidence that Mr Mullett said something about having the right equipment and “String”, a station employee called Carl Stringer, knowing how to do it. Mr Spiteri was also asked to help. Mr Spiteri had already tried to hire trestles to use in the erection but none were available for hire for about another week. Mr Mullett was not prepared to wait that long because he had aeroplanes ready for painting. He told Mr Spiteri “Don’t worry about that. We can’t wait that long. We have to get that booth up. The guys know what gear to use.”
[12]Mr Mullett asked Mr Spiteri to pick up the booth on the following morning, Saturday, and gave him a cheque. The booth was collected and paid for on the Saturday by Mr Spiteri. The erection was programmed for Tuesday morning. On Tuesday morning Mr Spiteri and Ms Peters went to the hangar. Mark de Lacey, Mr Mullett’s brother-in-law and the third defendant, and Andrew Dingle, a station employee arrived. Mr Spiteri asked where String was and was told “He’s not here. He’s out picking up an aeroplane.”
[13]A discussion took place as to how to put up the booth. It was quickly apparent that nobody present had ever erected such a booth before or knew how to do it. What followed was the result of collective ad libbing.
[14]The tent was unrolled. Mr Spiteri explained to the others what Mr Fawkes had told him about needing wire to hang it. None was available. Wire was ultimately obtained. The only equipment available was an “A” frame trestle belonging to Mr Spiteri. A long hardwood ladder that was located on the station was also obtained.
[15]The method of construction adopted was as follows. Pipes were placed inside the tent lengthways on the left and right hand edges of the roof part of the tent. The right hand pipe was then tied to the wall of the hangar with wires passed through eyelets in the tent and round the side supports of the hangar. Three ropes were then passed over a roof beam in the hangar and attached to the left hand pipe which was lifted up to the desired height by pulling and tying off the ropes. The tent was now in place with one side fixed to the wall of the hangar and the other suspended by three ropes from the ceiling. The next step was to secure with wire ties the side hanging by ropes from the roof beam. This was done by one person outside the tent passing the wire over the ceiling beam, through the eyelet in the tent to a person inside the tent who passed it around the pipe and back out the eyelet to the man outside who tensioned it and tied it off.
[16]The straight ladder was too short to lean against the roof beam and so it was determined that the man outside the tent, de Lacey, would use the trestle placed on the tray of a utility to give it sufficient height. The man on the inside, Mr Spiteri, used the straight ladder to receive the wire through the eyelet and pass it back. The ladder was leaned against the pipe suspended from the ropes.
[17]The danger of the method adopted is obvious. The pipe against which the straight ladder was leaning was not fixed. When weight was placed on it, it would naturally swing away from the weight. In this instance the pipes capacity to swing away was only retarded by the weight of that portion of the tent that it was supporting, the surface friction of the ropes through the eyelets and the friction of the roof of the tent as the pipe moved across it away from the point of force of the ladder. There were about 20 eyelets in the tent and consequently 20 points at which the tent would be tied off.
[18]Remarkably, the ladder did not collapse until the third wire was tensioned. Why this is so is not clear. The plaintiff alleged it was because, contrary to the agreed work method Mr de Lacey tensioned the third wire before Mr Spiteri had descended the ladder thus raising the pipe and causing the ladder to fall. The defendant suggested it was because the ladder slipped on the smooth concrete floor. It might just as easily have been because the position of Mr Spiteri on the ladder affected the force on the pipe at the point of contact and he was higher up the ladder than before causing it to swing away from the ladder and the ladder to drop out. It might have been that Mr de Lacey was slightly more vigorous than before in pulling the wire back through the eyelet and the equilibrium was so finely balanced that that was sufficient to move the pipe. On the evidence I cannot conclude what caused the pipe or the ladder to move. It is apparent to me, however, that the system adopted was fraught with obvious danger and ought never to have been attempted.
[19]Having concluded that the system employed was at fault it remains to be determined who was responsible for the system.
[20]Monduran Station, the property on which the hangar was located, was owned at the relevant time by Irving James Mullett. Mr Irving James Mullett was the father of Jim Mullett with whom Mr Spiteri conducted his conversations. Irving James Mullett was also the husband of Joy Mullett. Irving James Mullett died before the trial and the executors of his estate are Jim Mullett and Joy Mullett. Irving James Mullett had ceased to be actively involved in Monduran Station before Mr Spiteri went there. It was stated in evidence that Joy Mullett was the owner of the hangar in which the booth was being erected. I am not sure how this would be so since it appeared on the evidence to be plainly a fixture on the land. The negotiations between Mr Spiteri and Jim Mullett did not descend into the identity of the landlord to whom the rent for the shed or the booth would be paid. Nor were the arrangements ever reduced to writing. I am satisfied that on the evidence Mr Spiteri believed he was dealing with Jim Mullett as principal and was unaware of the real ownership of the shed or the booth. There does not seem to me to be any evidence to suggest that Monduran Aviation Pty Ltd was responsible for the erection of the tent despite the fact that the spray painting business Mr Spiteri was to operate was being set up as a complement to that company’s business.
[21]I am satisfied that Jim Mullett was the person directly responsible for the erection of the spray booth because he ordered it to be done, he was the person who was charged with ensuring on behalf of the landlord of the business premises that it was provided as part of the fit out of the hangar for Mr Spiteri’s business and because he had himself paid for it and owned it. In any case, Mr Spiteri’s arrangement was that he would be provided with the spray booth as part of the premises rented by him. I am further satisfied that for the purpose of erecting the spray booth Jim Mullett engaged Dingle, de Lacey and Mr Spiteri. Even though he was ultimately to use the booth Mr Spiteri was engaged in its erection at the direction of Jim Mullett. Having undertaken to erect the spray booth Mr Mullett owed a duty to those directed to do the work whether as employees or volunteers to take reasonable care for the safety of those persons. I am satisfied that Jim Mullett has breached this duty in at least 2 respects. Firstly, he has failed to ensure that those entrusted with the task were competent to perform it. Secondly he has failed to provide the equipment necessary to perform the task. In particular he was not prepared to wait until adequate trestles could be hired. As a result he directed the tent to be erected without either a ladder long enough to rest against the fixed rafters in the hangar roof so as to free up the trestle for use inside the tent or, alternatively sufficient self-supporting trestles of adequate height.
[22]In the circumstances I find Second defendant guilty of negligence. On the evidence I am not able to determine who else, if anyone, was vicariously responsible for Jim Mullett’s negligence. I cannot determine to whom the rent for the hangar, or more particularly, the spray booth, was actually paid.
[23]A separate allegation of negligence was made against Mark de Lacey, the third defendant. Mr de Lacey was on the trestle outside the tent as it was being erected. His task was to pass the wire over the rafter and through the eyelet. After Mr Spiteri inside the tent had passed it around the pipe over which the tent hung and passed the wire back out through the eyelet, Mr de Lacey would tension it and tie it off.
[24]Mr Spiteri alleged that the arrangement between them was that Mr de Lacey would not tension the wire until Mr Spiteri was safely off the ladder and on the ground. Mr Spiteri would call out that he was clear. On the third occasion when the ladder fell, Mr Spiteri alleges the wire was tensioned while he was still up the ladder and this caused the pole to rise and the ladder to drop out under it.
[25]A number of matters cause me to reject the allegation of negligence against Mr de Lacey. Firstly, before the men started erecting the tent, Mr de Lacey made it plain that he had no knowledge as to how to go about it. My impression of Mr de Lacey, who represented himself and gave evidence, was that he would simply do as he was instructed without innovation or independent action. Secondly, Ms Peters who might be thought to have a particular interest in the matter had no recollection of Mr Spiteri calling out that he was clear on the earlier successful tie offs. Thirdly, it seems to me that there are a number of plausible scenarios as to how the ladder fell. It may have just pushed the pipe against which it was leaning away and slipped under. That it had not done so on the first two occasions could have any number of explanations. The ladder may have slipped on the concrete floor of the hangar. The occasion on which the ladder fell was the only occasion on which Mr Dingle was not holding the ladder to stop it falling. The simple act of pulling the wire back through the eyelet might have been enough to overcome the initial friction forces which were holding the pipe in place. I am left in the position that there is no evidence on which I am prepared to act which would identify an uninstructed and negligent act on the part of Mr de Lacey as the probable cause of the ladder falling. In the absence of a reasonable inference as to the actual cause of the accident which is more probable than any other, I can only guess as to whether any negligence on Mr de Lacey’s part was a an actual contributory cause of the injury. Guessing in these circumstances is impermissible.[2] The claim against Mr de Lacey must fail.
[26]The circumstances are such that the issue of contributory negligence must be considered. As I have already indicated the system adopted was an accident waiting to happen. Mr Spiteri’s failure to take reasonable care for his own safety goes well beyond “mere inadvertence, inattention or misjudgement”[3]. Even were Mr Spiteri to be treated as akin to an employee in relation to the erection of the tent, I am satisfied that exercising a reasonable care for his own safety he should have appreciated that it was dangerous to lean a timber ladder on a smooth concrete floor against an unsecured pipe and climb up it without even the rudimentary precaution of having someone hold the ladder to steady it. It seems to me that this reckless disregard for personal safety is at least as great a contributory cause of the accident as the negligence of Mr Mullett in requiring people with no knowledge or experience of the task to erect the spray tent and without providing any equipment with which to perform the task. I assess contributory negligence at 50%.
[27]As a result of the fall, Mr Spiteri suffered injury to his left hip, an intertrochanteric fracture of the left femur and an injury to his left shoulder. Open reduction and internal fixation of the fracture was carried out with a compression screw and plate. Mr Spiteri commenced weight bearing a few days later and underwent physiotherapy for about eight weeks. Mr Spiteri returned to Monduran Station and commenced work as an aeroplane spray painter on 1 September 1997. He continued in that occupation until 16 February 1998. During that period Mr Spiteri was able to perform the work. The end results were excellent. His work, was, however, slower than it would have been had the accident not happened and possibly too slow to make the business viable. Mr Spiteri also needed assistance with heavier tasks. After a period in consequence of his difficulties Mr Spiteri ceased to be the proprietor of his own business and worked on hourly rate for Monduran Aviation. Personal difficulties with one of the Monduran Aviation employees were ultimately the catalyst for Mr Spiteri leaving. Monduran Aviation ceased business at the end of the 2001 financial year.
[28]Mr Spiteri now complains of pain over the trachanteric region and anterior aspect of his left thigh. On occasions he has pain in the left groin. Dr Khursandi attributes this to some irritation from the screws and plate which could be alleviated by removal of those objects. The groin pain is attributed by Dr Khursandi to early arthritis in the hip. Dr MacFarlane disagrees in relation to the arthritis but on balance I am inclined to accept Dr Khursandi on this. Eventually, Mr Spiteri will require some surgery for this. This may not be for 15 or more years.
[29]Mr Spiteri still has some pain in his shoulder. This is probably accident related tendonitis and likely to be permanent.
[30]The medical evidence supports the conclusion that Mr Spiteri’s injuries should not prevent him from working, even as a spray painter, albeit he might be slower than he would otherwise be and he would have some problems with squatting and bending. On balance his injuries have healed well and he has only a slight permanent disability. Despite Mr Spiteri’s evidence that he has tried working and cannot this seems to me to be inconsistent both with the orthopaedic evidence as a whole and with the evidence of his own conduct in returning to and remaining at work. I am not satisfied that Mr Spiteri cannot work.
[31]I assess damages for pain and suffering and loss of amenities at $35,000. I attribute $20,000 of that to the past and allow interest on that sum at 2% for 5.25 years in the amount of $2,250.
[32]For past economic loss, no claim is made for the period Mr Spiteri worked at Monduran Station. For the period since the end of February 1998 Mr Spiteri has lost the opportunity of building up the aeroplane painting business. He has not sought alternative work although on my findings he might well have done so. In any event the aeroplane painting business would have ceased in 2001 when Monduran Aviation ceased and Mr Spiteri would have had to establish a new smash repair business or do other work. With these factors and a paucity of evidence about what might have been earned in fact I can only give a global figure for past economic loss which I assess at $45,000 which equates to about $200 net per week. In arriving at this figure I have disregarded Jim Mullett’s statement that the business Mr Spiteri was setting up could earn $900 per week as mere puffery. I did consider the earnings of Frank’s Paint & Panel of $329 net average over its last three years. I also had regard to evidence that an employed panel beater in 1997 earned about $400 net per week. As this is a global sum and incorporates a period when Mr Spiteri was likely to be self employed I do not propose to award a separate amount for lost superannuation.
[33]For the future I again propose to take a robust approach to reflect the fact that Mr Spiteri has a substantial residual working capacity but with his disability is likely to be disadvantaged in finding work. His opportunities in smash repairs are likely to be limited by his problems with bending and squatting. I propose to allow a sum of $200 net per week for 17 years with a multiplier of 713 making $142,600 and discounting that sum by 15% for contingencies to reach $121,210. I allow future superannuation at 9% on this sum making $10,909.
[34]I allow past gratuitous care at $3,535.38 and interest on that sum at 5% for 5.25 years in the sum of $928.04.
[35]Special damages are claimed at $11,090.24 which I did not understand to be seriously disputed and which I allow. I allow future medical and pharmaceutical expenses in the sum of $8,154.87 for the cost of a hip replacement in 15 years and $1,600 to remove the existing plates in the hip. In addition I allow $2,846.02 for future pharmaceutical expenses.
[36]The total award comes to $242,513.55. Taking into account my conclusion that the second defendant and the first plaintiff were equally liable for the injuries this results in a judgment in favour of the first plaintiff against the second defendant in the sum of $121,256.77. The action is otherwise dismissed.
Footnotes
[1] Ms Peters is the second plaintiff. She was joined to the action because of the claim for loss of earnings by the partnership between herself and Mr Spiteri. Since the clarification of the law in Husher v Husher (1999) 197 CLR 138 her joinder is unnecessary and I do not propose to refer to her claim again.
[2] See Muller v Cherrie [2000] QSC 330 at [14] – [15]; Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155 at 161 – 162; Bradshaw v McEwans Pty Ltd (unreported – High Court – 27 April 1951).
[3] Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310.