Bourk v Power Serve Pty Ltd[2008] QSC 29

SUPREME COURT OF QUEENSLAND

1. The plaintiff was employed by the defendant as a linesman when, on 26 August 1999, he fell from a pole on which he was working.  His injuries were severe and his damages have been agreed in the sum of $850,000.

2. The defendant is a company registered in New South Wales.  Its head office and perhaps only substantial office, was in Patterson in the Hunter Valley.  It carried on business as an electrical infrastructure contractor, building and maintaining structures for the transmission and distribution of electricity.

3. It contracted with Stanwell Corporation Limited, a Queensland company, to refurbish 17 kilometres of power transmission lines and supports which carried power from the Koombooloomba Dam to the Kareeya Power Station near Ravenshoe in North Queensland.  The lines ran through rain forest.  The terrain was steep and rugged.

4. The power lines, three in number, were to be replaced with lines, or conductors, as they were called, of greater capacity along the 17 kilometre stretch. The conductors were suspended from wooden poles, each about 11 metres in height, fitted with a single cross arm. The contract required the defendant to replace some poles and most of the cross arms, after which new conductors were to be ‘strained’ onto the new cross arms.

5. The plaintiff claims damages from his employer. The defendant seeks indemnity from its statutory insurer. It had two policies which would answer any liability it might be found to have to pay damages to the plaintiff: one with each of the third parties. They have both declined indemnity on the basis that the other’s policy covers the defendant’s risk, and that theirs does not. No other basis is advanced for declining indemnity. Regardless of the outcome of the plaintiff’s action this contest must be addressed in order to determine which of the insurers should pay the defendant’s costs if it succeeds; and the damages and costs awarded against the defendant should the plaintiff succeed.

6. The plaintiff was an experienced and competent linesman. He left school after year 11 and trained with the State Electricity Commission in Victoria receiving his A grade qualification as a linesman in 1988.  He worked on the construction of powerlines in Western Australia and the Northern Territory before coming to Queensland where he made contact with Mr Keith, the defendant’s operations manager, having ascertained that the defendant was looking to engage linesmen for the Koombooloomba Forest contract.

7. The plaintiff first spoke to Mr Keith by telephone. Mr Bourk was in Brisbane where he was living.  Mr Keith cannot recall where he was.  They spoke about the possibility of employment after which the plaintiff drove to Ravenshoe where he was interviewed by Mr Keith on or about 15 July 1999 and employed as a linesman.  He started work that day or the next and was a member of one of two gangs engaged on the refurbishment of the transmission line.  The gangs consisted of electricians, linesmen and a crane driver.  The plaintiff was one of two linesmen in his gang.

8. When the plaintiff commenced work with the defendant he was given, as were all the other gang members, a new harness and ‘pole strap’. This was a strap the material of which resembled in appearance the seatbelt of a motor car, though the strap was wider and thicker. At each end of the strap was a steel clip elliptical in shape one straight side of which could be opened to allow the clip to be affixed to a metal D shaped ring sewn onto the harness. The harness itself was of similar material and consisted of a stout waistband, shoulder straps and leg straps which fastened around the upper thighs of the wearer. The two harness rings were securely sewn on to a fold of the waist strap of the harness. The clips on each end of the pole strap were attached to the rings so that the strap formed a loop, the base of which was the harness enclosing the man wearing it. The loop went around the pole. It was, of course, a safety strap. Should the linesman wearing the harness and pole strap slip, the strap would catch on one of the step irons and prevent a fall.

9. The harnesses and pole straps had been bought new by the defendant to supply to its gangs working in the Koombooloomba Forest.  They were bought by an employee at Mr Keith’s direction from a supplier in Maitland.  He instructed the employee to purchase harnesses and pole straps that complied with the relevant Australian Standard, although the Standard was not identified nor put into evidence.  The parties seemed to assume, although it was not proved, that the equipment met the requisite standards.

10. The plaintiff was replacing a cross arm on a pole when he fell. He has little recollection of the events of that day. He remembers going to the pole to replace the cross arm, and falling, but nothing else. He does not know what caused his fall. There were two other employees present, Jason Leacy and Mark Beattie. Mr Leacy saw the plaintiff fall but cannot explain what caused the fall. Only Mr Leacy was called as a witness but no criticism was made of the fact that Mr Beattie was not called to testify and no explanation was offered for his absence.

11. The plaintiff had replaced cross arms many times before. He was experienced and accomplished in his work. The cross arms were 2.7 metres in length. They weighed between 50 and 60 kilograms and were, in cross section, 15 centimetres by 15 centimetres.

12. Although the plaintiff has no recollection of his activities on the day prior to his fall he was able to give a good account of what was involved in the task of replacing a cross arm. This, in summary, is the plaintiff’s description. He was one of a gang of three. Towards the top of the pole a number of steel ‘step irons’ had been screwed into the wooden pole, on opposite sides at staggered heights. These provided rungs to allow a linesman to climb to the top of the pole. The lowest step iron was about nine metres above the ground. The plaintiff climbed to this level by means of an extension ladder which was rested against the pole. Having extended the ladder he lashed its top to the pole and climbed up the pole using the step irons. He then detached the conductors from their insulators at each extremity of the cross arm and rested the lines, or conductors, on the top of the pole where they were tied so they could not fall. He then detached the insulators and lowered them to the ground.

13. The cross arm was held in position by a king bolt which penetrated the cross arm and pole. It was braced in position by steel straps bolted onto the pole and the cross arm. He rigged a pulley on the top of the pole through which he reeved a rope which fell to the two men below. When the bracing on the cross arm was unscrewed so that the cross arm could pivot on the king bolt he tied the hoisting rope to one end of the cross arm so that the weight of the cross arm could be taken by the men below. He then removed the cross arm from the king bolt so it hung vertically, suspended from the hoist rope. He tied the lower end of the pole to the rope so that when lowered the cross arm would remain vertical and not flail. It was then lowered to the ground where it was untied and the new cross arm tied to the rope in its place. It was then hoisted, vertically, to the plaintiff.

14. When the top of the cross arm was level with the plaintiff’s chest he untied the top knot holding it to the hoisting rope and signalled the men below to hoist further, the rope still being tied to the lower end of the cross arm. As it was lifted higher, and the middle of the cross arm was level with the king bolt the plaintiff guided it and slid it onto the king bolt. The task was then to screw the nut on the end of the bolt and reattach the steel bracing straps. The plaintiff fell when was about to place the cross arm onto the king bolt.

15. Mr Leacy described the plaintiff performing the last part of the task in a different manner. He said that when the cross arm was lifted to a height level with the plaintiff Mr Bourk untied the top knot attaching the cross arm to the hoisting rope which was then raised higher, the cross arm still being attached to the hoisting rope by the bottom knot. As it was raised this last distance the plaintiff guided it and rotated it from the vertical to the horizontal, taking the weight by resting the cross arm across the pole strap. The task was then to lift the cross arm from where it rested horizontally across the pole strap and slide it onto the king bolt. According to Mr Leacy’s testimony it was at the point when the plaintiff rested the cross arm over the pole strap that he fell.

16. The pole strap allowed the linesman to perform his work. To detach the conductor wires and insulators the linesman had to lean out and reach away from the pole. The friction of the strap against the pole would prevent the linesman falling or over balancing, as long as his feet were firmly on a step iron.

17. The pole strap could be adjusted in length. As the linesman ascended a pole having climbed from the ladder onto a step iron he would attach the strap and flick it upwards over the step irons as he ascended. On descent he would detach one clip, shorten the length of the strap, and sling it over his shoulder.

18. A moment before the plaintiff fell, Mr Leacy heard a metallic sound, a ‘click’ which resembled the noise made by the keeper shutting. It is impossible to know what caused the sound or what significance it has for the plaintiff’s case.

19. When the plaintiff fell Mr Leacy observed that one end of the plaintiff’s pole strap was attached to his harness but the other was not. As he described it, the pole strap ‘followed’ the plaintiff to the ground and fell on him or beside him. His harness was intact and undamaged. In particular the harness rings were unbroken and secure in their fastenings. Only one end of the pole strap was attached to a ring.

20. The immediate puzzle is why, or how, the pole strap clip became detached from the harness. The clip itself appears quite sturdy, as one would hope. That part, called the gate or keeper, which opens to allow the clip to be attached to the ring is spring-loaded so that it closes once the clip has been slid onto the ring.  It can only be opened by two opposing simultaneous applications of pressure.  On the side of the clip opposite the keeper is a catch which must be depressed inwards towards the keeper, before the keeper itself can be moved inwards to make the gap to allow attachment to the ring.  Once the pressure is released from catch and keeper its springs shut.  The clip is obviously designed so that once attached to the ring it remains attached until, by the deliberate application of doubled sided pressure, the keeper can open and the clip detached from the ring. 

21. After the plaintiff’s fall the immediate concern of the defendant’s employees was to give him all possible assistance. Fortunately an army unit was training nearby and its numbers included a paramedic who rendered first aid until a helicopter was summonsed to fly the plaintiff to hospital. The next day however the defendant’s supervisor, Mr Kemp, himself a linesman, looked at the plaintiff’s pole strap. He noticed that the gate on one of the clips ‘stuck’. It was ‘half open or about an inch open and did not close completely when (the pressure) was released.’ The opening mechanism was not defective: it still required the double pressure but once open it ‘stayed open (and) wouldn’t … retract to a closed position.’ This fault occurred intermittently. It was only sometimes when the keeper was opened that it failed to close automatically. Mr Kemp described the clip as being in apparently good condition. There was no dirt or clay adhering to it, nor did it appear to be damaged or worn.

22. The pole strap was also examined by Ms Davies, now the Regional Operations Manager for Workplace Health and Safety in Cairns but then District Manager at Innisfail.  She attended the defendant’s office in Ravenshoe on 2 September 1999 where she interviewed some of its employees.  She noticed that ‘by shutting and closing the gate a number of times … every now and then the gate stayed open … intermittently … not all the time.’  She thought the clip looked ‘worn’.  It had ‘minor indentations’ and a ‘clay type contaminant throughout.’

23. Ms Davies seized the pole strap and took it to her office in Innisfail. It has been lost. Ms Davies had no qualification which would equip her to express an opinion as to the cause of the defect. She was a registered nurse, had undertaken a course in workplace health and safety, the content of which was not proved, and had a diploma in business management.

24. It is not established that the defective clip was the one which in fact became detached from the plaintiff’s harness. No explanation was offered for the occasional tendency of the gate to remain open. No evidence was called from the manufacturer or anyone knowledgeable about the design and fabrication of such clips. No one investigated the particular clip other than the examination carried out by Mr Kemp and Ms Davies. The latter assumed that the clay which she observed on the clip was somehow responsible for the sticking phenomenon but no one looked inside the clip mechanism to see if it was restricted by clay or whether there was some other mechanical explanation.

25. Likewise there is no evidence as to when the defect would first have been observable, or how long it had been present, whether from manufacture or after the plaintiff fell, or sometime in between. There is no evidence when the clay Ms Davies observed became attached to the clip.  She examined it about a week after the fall.  The next day, when Mr Kemp looked at it, it appeared to be clean.

26. These observations pose an obvious problem for the plaintiff’s case. Mr Bourk must prove that his employer was negligent or in breach of a relevant statutory duty if he is to recover the agreed damages. He must, therefore, prove the means by which the pole strap clip lost contact with the harness so as to show that the defendant’s lack of care or failure to comply with a statutory obligation was the cause of his injury.

27. The defendant and the third parties submit that the plaintiff’s case fails at the outset. Because he cannot demonstrate why he fell, or the mechanism by which the clip and ring became detached, he cannot demonstrate that the relevant legal cause was the defendant’s breach of duty, tortious or statutory.

28. Reliance was placed on the judgment of Dixon CJ in Jones v Dunkel (1959) 101 CLR 298 at 304-5:

‘... we are not concerned with a choice among rival conjectures.

In an action of negligence for … personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.  It is true that “you need only circumstances raising a more probable inference in favour of what is alleged”.  But they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture.

…

But the law … does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess is more likely than other or the others.  The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of facts may reasonably be satisfied.’

29. In the same case Kitto J said (305):

‘One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened …’

30. When the plaintiff fell one end of his pole strap was not attached to the harness. He could not have fallen had both ends of the pole strap been attached to the harness rings. Therefore one can say that the relevant cause of the fall was lack of attachment at one end. There are, I think, only three possibilities to explain the detachment. They are:

1. The plaintiff did not attach one end of the pole strap to the harness when he commenced working on the pole, or when he climbed up.

2. He, deliberately, unclipped the pole strap from the harness at some stage when he was working on the pole.

3. The clip detached from the ring because of some defect in its structure or mechanism.

31. It should be mentioned, by way of parenthesis, that a fourth possibility was mentioned. It was that the plaintiff inadvertently attached the clip not to the harness ring but to some item of his clothing, not more particularly identified. This conjecture was not pleaded and the possibility was not put to the plaintiff. It appears to have its origin in a speculation Mr Leacy raised with Ms Davies. I think it is entirely fanciful. The only item of clothing one might think of to which the clip could have been attached without having to pierce the fabric of the clothing was a belt loop. It does not seem likely, though the matter was completely unexamined in evidence, that an experienced linesman would attach his clip to a belt loop rather than a steel harness ring and not notice the error. There was some evidence that the plaintiff’s clothing was not damaged after his fall. More significantly the plaintiff’s account of what he had to do by way of removing the cross arm makes it impossible to believe that the clip was not attached to the ring. He had to lean out from the pole, relying for support only on the friction of the strap around the pole. While so positioned he removed the conductors and insulators and positioned the conductors on top of the pole itself. It would require convincing evidence to think that a belt loop or some other item of clothing could provide a sufficient anchor for the pole strap carrying the weight of the plaintiff and the additional force of his activities.

32. The evidence eliminates the first two possibilities.

33. The plaintiff was working upon the pole for between 15 and 30 minutes before he fell. He was engaged in the tasks I have described which required him to lean away from the pole relying for support on the step irons and the pole strap. He could not have done what he was observed to have done had the pole strap not been attached at both ends. Mr Leacy saw the plaintiff positioning the new cross arm onto the pole straps immediately before he fell. It must have been attached at that stage.

34. The second possibility can be rejected as a matter of inference and not mere conjecture. There was no conceivable reason why the plaintiff would disconnect the clip unless he were about to descend the pole to the ground. He was not doing so. He was part way through the task of fitting the new cross arm. He was actually working to position it across his pole straps in order to bolt it to the pole when he fell. Absent a desire to inflict serious injury to himself he would not have detached the strap. No one makes such a suggestion, which is fanciful.

35. One is left then with the accidental detachment for which there is some explanation. There was a defect in the clip, not in its structure, but in its mechanism. It is true that the defect was not noticed before the plaintiff’s fall and may have been occasioned by the fall, but its existence prior to the fall offers the only possible answer to the puzzle of how the clip and the harness separated.

36. The conclusion depends upon the gate remaining open after the plaintiff attached the pole strap to the ring when he first ascended the pole. It is unlikely that he would have himself detached it and reattached it once he had climbed onto the pole. He was as I have mentioned, working on the pole for at least 15 minutes and perhaps half an hour moving and exerting different loads on the pole strap which, on this hypothesis, remained opened. This course of events was said to be unlikely, but I think it must have occurred.

37. The conclusion leaves unanswered the precise description of how that part of the clip, open when the gate failed to close completely, became juxtaposed to the ring. The weight of the plaintiff’s body leaning backwards ought to have pulled the elliptical end of the clip taut against the ring. Somehow the strap and clip must have been moved relative to the ring so that it slipped out of the open gate. The evidence offers no explanation, inferential or otherwise, for that occurrence.

38. Nevertheless the third possibility is a more probable inference from the circumstances than either of the other two. The three possibilities are not conflicting inferences of equal degree of probability. In the circumstances I think it is the only reasonable inference.

39. The relevant cause of the fall having been identified, the question becomes whether the defect, or failing to detect it, was the result of the defendant’s breach of duty, tortious or statutory.

40. The law was conveniently summarised by McPherson JA in Miller v Livingstone Shire Council [2003] QCA 29.  His Honour referred with approval to the judgment of Lord Watson in Wakelin v London and South-western Railway Co (1886) 12 App Cas 41 at 47:

‘… the plaintiff must allege and prove, not merely that (the defendants) were negligent, but their negligence caused or materially contributed to the injury.’

41. His Honour went on:

‘These decisions are old, but the principle has not changed.  In the absence of evidence, speculation is not enough.  It was necessary for the plaintiff to prove how or why he fell.  Inference from proved facts will do, but not merely hypothesis.  The circumstantial evidence in the present case does not support an inference that the plaintiff’s injuries resulted from the negligence of the defendants … installing or maintaining a fence that was too low rather than from some other cause … inconsistent with negligence …’.

42. The plaintiff’s case comes down to an allegation that the defendant failed to provide safe equipment. In general an employer will discharge its obligation of providing proper plant and equipment to its employees by showing that it bought appropriate equipment from a reputable manufacturer or supplier: Davie v New Merton Board Mills Ltd [1959] AC 604.  The defendant bought new harnesses and pole straps for the plaintiff and his co-workers for the particular contract on which they were engaged.  It was a term of the contract of sale that the harnesses and straps comply with relevant Australian Standards.  There is no direct evidence that they did in fact comply or that the manufacturer and/or supplier was reputable.  These matters were simply not explored in evidence.  Certainly there was no criticism from the plaintiff of the type or quality of the equipment supplied to him by the defendant.  Ms Davies had no criticism of the safety equipment which she seized, presumably for the purposes of inspection.  In these circumstances I am not prepared to find that the defendant failed to provide adequate or appropriate harnesses and pole straps.

43. The focus of the plaintiff’s case was on the manner in which the plaintiff (and his co-workers) stored their harnesses and pole straps while on the job, and the lack of any regular inspection or maintenance of the equipment. The premise, which went largely unstated, was that the defect in the clip was caused because of improper storage; and/or that a regular programme of inspection would have detected the defect.

44. The plaintiff and the other workers lived in accommodation in Ravenshoe and drove from there to the worksite each morning and evening. They were provided with 4 wheel drive vehicles, Landcruisers or the like, for the journey.  At the site there was a container which served as a storage shed, a work truck and a crane.  The truck was used to drive from pole to pole as worked progressed, and to carry cross bars, cables and tools for that purpose.  It had a dual cabin and a tray back to which was welded a cabinet. 

45. The plaintiff’s practice appears to have been to leave his harness and pole strap either in one of the cabins of the truck or in the cabinet which could be locked. The truck remained each night at the work site. When driving from pole to pole the plaintiff would take off his harness and pole strap, which were uncomfortable, and put them in the back of the truck. On some occasions it is likely that there was in the back of the truck objects which might have come into contact with the pole strap, and its clips, such as cross bars, tools and sundry items of equipment. There may have been mud or clay in the back of the truck.

46. The complaint is that the defendant should have provided a designated store for the pole straps in which they would be kept clean and secure from impacts.

47. This aspect of the plaintiff’s case fails for lack of proof. There is no evidence that the clip was defective because of the manner in which the pole strap was stored or transported. There is no evidence that the clip stuck open because the spring was clogged with clay. Ms Davies’ opinion to that effect must be disregarded. It had no basis. She did not inspect the mechanism. She could not say whether there was clay inside the casing where the spring was.  (It was not proved there was a spring but that fact seems self-evident from exhibit 7).  It was not proved that the clay seen by Ms Davies became attached to the clip while the pole strap was in the back of the truck rather than from the impact of the fall.  There was evidence that the ground on which it and the plaintiff fell was soft and muddy. 

48. The same problems exist with respect to the hypothesis that the mechanism was damaged from an impact with some heavy objects in the back of the truck. The indentations seen by Ms Davies (which Mr Kemp did not observe) may have been caused in the fall. The detached end of the pole strap could easily have come into contact with the pole or step irons as the plaintiff’s body dragged it down. There is in any event no evidence that the indentations were somehow connected with the defect. The defect may have been caused by an error in the process of manufacture.

49. Clay, impact, and error in manufacture, are all hypotheses which might explain the occasional malfunction in the clip but the evidence does not allow one to make any choice between them because no one bothered to examine the clip to see why it would not close sometimes. The plaintiff has not proved that the malfunction occurred because of the manner in which the pole strap was stored or transported.

50. Apart from the lack of proof of causation the plaintiff, in my opinion, failed to establish that the defendant did not take reasonable care for the maintenance of the pole straps. The plaintiff was provided with a safe place to store his equipment.  He could keep it in the cabin of the truck as he mostly did, or in the container, or in the steel cabinet on the truck.  He seems to have used all three receptacles but for the most part the strap was left in the cabin.  He seems to have put the strap in the back of the truck only on the occasions when they drove from location to location to refurbish poles.  It is true he received no instruction not do this but it does not seem to me unreasonable for the defendant to have left the plaintiff to devise for himself a suitable place for the carriage of his strap when he changed sites.

51. The plaintiff is an intelligent man. He was a competent and experienced tradesman. The employer is entitled to rely upon the commonsense and experience of its skilled workers. Of necessity the plaintiff and his co-workers were left to their own devices in performing the refurbishment of the power line. The work they were to perform was explained to them. They were all familiar with it and competent to do it. They were given the appropriate means to undertake it. The detail of how they went about their job such as where they put their pole straps when they drove relatively short distances was a matter the employer could reasonably leave to the discretion of its employees.

52. This aspect of the case is governed, I think, by the principle expressed in McLean’s Roylen Cruisers Pty Ltd v McEwan (1984) 58 ALJR 423, in which Gibbs CJ quoted with approval from the judgment of the High Court in O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 at 229:

‘The defendant as employer was under … a duty … to take reasonable care for the safety of (his employee) by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.’

53. The Chief Justice went on:

‘No detailed rules can be laid down; the question is simply whether in all the circumstances of the case the taking of reasonable care by the employer involved the giving of a warning …’.

54. In Roylen Cruisers it was not thought to be unreasonable not to warn a deckhand experienced in his work of an obvious danger, with which he was familiar, in performing an essentially simple task.

55. In my opinion it was not unreasonable for the defendant not to instruct an intelligent, experienced, linesman where to put his pole strap when driving from pole to pole.

56. In a recent case, Roads and Traffic Authority of NSW v Dederer (2007) 81 ALJR 1773 Gummow J (with whom Callinan and Heydon JJ agreed) said:  (para 43)

‘… whatever their scope, all duties of care are to be discharged by the exercise of reasonable care.  They did not impose a more stringent or onerous burden.’

57. His Honour expressly disapproved of the notion that such a duty is to prevent injury,  and went on: (para 54)

‘The error in that approach lies in confusing the question of whether the RTA failed to prevent the risk taking conduct with the separate question of whether it exercised reasonable care.  If the RTA exercised reasonable case, it would not be liable even if the risk taking conduct continued.  If the contrary were true, then defendants would be liable in any case in which a plaintiff ignored a warning … and engaged in the conduct the subject of the warning.  … such a defendant would ipso facto have failed to prevent the plaintiff from engaging in it.  If this quasi automatic form of liability represented the true state of the law, it would be startlingly at odds with the general proposition that liability in tort depends upon proof of fault through the … negligent infliction of harm.’

58. The plaintiff had a choice when it came to transporting his pole strap. He could have kept it with him in the cabin of the truck, or put it securely in the cabinet or, as he did at least some of the time, put it in the back of the truck. No doubt he did that because he saw no adverse consequence from putting it there. The evidence does not show that his assessment was wrong.

59. The second aspect of the plaintiff’s case has more substance. The defendant had no system of regular inspections of pole straps and their clips and did not require its linesmen to inspect their own. A system of monthly inspections was introduced after the plaintiff’s injury. The workers themselves formed, or were formed into, groups and each man in the group checked another’s equipment. If a defect was found the belt was replaced. The question was not explored in any depth but it appears that harnesses almost never suffer damage but pole belts sometimes do. The evidence appeared to be that the straps themselves were sometimes damaged or frayed. Mr Keith did not mention any instance of a defective clip found on inspection.

60. In response to Ms Davies’ enquiries about how the safety of the defendant’s employees might be improved Mr Keith and Mr Kemp prepared ‘a safe working procedure’ for the use and case of safety harnesses which was to be issued to all employees required to use that equipment. The procedure included the following:

‘•The harness is to be inspected by the user before each use.

•Particular notice should be taken to the condition and operation of all … clips.

•Care should be taken when storing harness to ensure that safety clips … will not be exposed to prospective damage for the dropping or placing of other equipment on the harness.

•Harnesses shall not be left exposed to the elements and are to be stored in a clean dry environment to ensure their serviceability.

•When attaching the harness to the work site … the wearer shall check that the safety clip is properly closed … each time the harness is connected or reconnected.’

61. Mr Campbell, who appeared with Mr Dawson for the plaintiff, submitted that the monthly inspection and the standing instructions to linesmen to check their equipment at every use were measures which would have been effective to detect a defect and would have been easy and cheap to implement. The lack of such inspections and instructions were said to amount to a failure to take reasonable care for the plaintiff’s safety.

62. The submission has some force but I do not, in the end, accept it. The defendant took reasonable care by providing its employees with new and adequate safety harnesses and belts. They are, the evidence reveals, robust appliances which last for years. Indeed most linesmen seem to keep their belts for many years. These belts and harnesses were barely six weeks old when the plaintiff fell. It was not, I think, unreasonable not to have inspected them for defects in that short period.

63. As to the wearer’s own inspections, whether or not such instructions had been given, the linesman would in fact have carried out some sort of inspection when he picked up the harness to put it on and attach the belt to the harness. He may not have looked particularly for defects but the acts of donning the harness and attaching the belt were apt to reveal a discernable defect. Again I do not think it shows a lack of reasonable care not to require an experienced man to specifically check new equipment several times a day, which is what the instruction calls for. As well the considerations discussed in paragraphs 82-84 answer the plaintiff’s submission.

64. This disposes of the claim for negligence but there is also one for breach of statutory duty to which different considerations apply.

65. Section 28(1) of the Workplace Health and Safety Act 1995 (‘the Act’) provides that:

‘An employer has an obligation to ensure the workplace health and safety of each of (its) workers at work.’

66. Section 22 of the Act provides that workplace health and safety is ensured when workers are free from injury, or the risk of injury, caused by any workplace or workplace activity. Section 27 applies when no regulation or ministerial notice prescribes a way to prevent or minimise exposure to risk, and there is no advisory standard or industry code of practice stating a way to manage the risk. No regulation, ministerial notice or advisory standard or industry code applied to wearing or use of strap poles. Accordingly s 27 applied and provided:

‘(2)The (employer) may choose any appropriate way to discharge (its) workplace health and safety obligation …

(3)However, the person discharged of the workplace health and safety obligation … only if (it) takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.’

67. Section 37 provides that it is a defence in a proceeding for a contravention of the obligation imposed on an employer by s 28 if the employer proves, relevantly:

‘That the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention.’

68. Section 28 imposes:

‘… civil liability on employers who have failed to ensure the health and safety of their employees and thereby caused injury to those employees, unless the employer demonstrates that it has discharged its obligations under … s 27 or that it has established a defence under s 37 of the Act.  … this adds to the common law of negligence by placing the onus on employers to establish these matters under the Act, once the employee has proved the employer breached the obligation to ensure the workplace health and safety of the employee, thereby causing injury to the employee.  … the imputed intention of s 20(1) … is to provide a civil cause of action to such employees.’

Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518 at 532-3.

69. The statutory obligation is to ensure the employee’s safety at work. If any injury is caused to an employee at work which could by some means have been prevented by the employer, s 28 will have been contravened and the employer will be liable in damages for the injury, unless it can make good one of the defences provided by s 27 or s 37 of the Act.  See Hardy v St. Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19 at 21-22.  The standard is higher than that imposed by the common law.

70. In Calvert v Mayne Nickless Limited [2005] QCA 263 Jerrard JA said (para 87):

‘… once Ms Calvert proved that she was not free from a trivial risk of injury created by her work place or work activities … she established the prima facie conclusion that Mayne Nickless had breached its obligation to ensure her workplace health and safety.  The onus then lay on Mayne Nickless to establish either the matter as specified in s 26(3) and that it had accordingly discharged its workplace health and safety obligation, or to establish the defence provided by s 37(1)(b) of that Act.’

The relevant provisions for this case are s 27(2) and (3) and s 37(1)(c). 

71. The provision and maintenance of plant and equipment, especially safety equipment, has always been an obligation imposed by the general law on an employer. Obviously if such equipment is not kept in good working order the employee who depends upon it for his safety will be exposed to the risk of injury. Accordingly there is an obligation imposed by the Act on an employer to maintain safety equipment provided to its employees. Section 27 obliged the defendant to choose an appropriate way of discharging the obligation to maintain the strap poles. It would discharge that obligation only if it took reasonable precautions and exercised proper diligence to ensure the maintenance of the pole straps. Section 37 would provide the defence only if the defendant had chosen an appropriate way to maintain the pole straps in good working order and took reasonable precautions and exercised proper diligence to prevent their not being in good working order.

72. Counsel for the defendant and third parties argued that the defendant had discharged its statutory duty by providing new harnesses and pole straps at the commencement of the contract. The equipment was new, of an appropriate standard, and, in the nature of things, expected to give many years service. This last point is proved obliquely rather than directly. The evidence, scant as it was, appeared to justify the inference that the equipment was robust and simple. When wear and tear occurs it is to the fabric of the strap rather than the clips. The defendant’s contention is that any program of inspection was not called for in the case of six week old equipment and s 28 of the Act did not require any such program.

73. There is considerable force in the submission that the defendant had chosen an appropriate way to discharge its obligation to ensure the plaintiff’s (and his co-workers) workplace health and safety.  The appropriate way was the supply of new equipment that complied with the relevant Standard.  If that way was appropriate s 27(2) was complied with by the provision of the equipment.

74. Despite the force of the submission I have, with some hesitation, concluded that it should not be accepted. Section 28 is in absolute terms. An employer must ensure that its employees are free from the risk of injury caused by any workplace activity.  The plaintiff has proved that he was not free from a risk of injury created by his workplace activity.  Therefore, applying Calvert, the plaintiff has established a prima facia case of breach of statutory duty by the defendant.

75. Its particular obligation was to eliminate the risk of injury by providing proper safety equipment and maintaining or ensuring the maintenance of that equipment in good order. It had no system or, in the words of the statute, ‘appropriate way’ of ensuring that the pole straps were maintained in good working order. It had no system or ‘way’ of inspections or checks, and no program to require its employees themselves to inspect or check the efficacy of their pole straps. Not having devised an appropriate way, the defendant did not, of course, take reasonable precautions or diligence to ensure the implementation of the system, or that the ‘way’ was followed.

76. The conclusion is therefore that the defendant was in breach of s 28. The conclusion is, however, not enough to bring the plaintiff success in the action. He must still prove that the defendant’s breach of the Act caused his injury. That is to say he must prove that had there been a system of inspections and checks the defect in his pole strap would have been detected before he fell.

77. The problem for the plaintiff here is lack of evidence. There is no way of knowing if a monthly inspection, which would have occurred in about the middle of August 1999, would have detected the defect.  There are two reasons for saying so.  The first is that the defect was not apparent on every occasion the gate was opened.  The fault was intermittent and was only detected by Mr Kemp and Ms Davies after they had opened the gate several times.  An inspection may well not have detected the defect because the gate on one, or even two or three openings, may have closed normally.  Of course it may not have closed, but there is no basis for saying, as a matter of probability, that an inspection would have detected the fault.  The second reason is that there is no evidence as to when the defect was first manifest.  The gate may not have begun to malfunction until the very day of the plaintiff’s mishap.  There is no warrant for concluding that it would have been detectable earlier.

78. Nor is the evidence any more helpful with respect to the second aspect of the system: requiring the linesmen themselves to check the efficiency of their equipment on each occasion they used it and to check that the safety clip was properly closed.

79. This topic was not explored in evidence. The plaintiff was not asked what his reaction would have been to such an instruction. In any case such evidence is of little weight because of a plaintiff’s natural inclination to testify favourably in his cause. But whether or not evidence of that kind is suspect, none was given in this case.

80. It is not self-evident that a linesman provided with new, proper equipment and experienced in its use and with a busy workload would look assiduously on every occasion he used the equipment for defects he had no reason to suspect existed.

81. On the inferences I have drawn the gate was open on the occasion Mr Bourk climbed the pole to replace the cross arm and fell. It must, I think, have been open for the duration of his ascent on the pole. Had he looked specifically he should have noticed that it had not closed and either pushed it closed or climbed down the pole to equip himself with another strap.

82. In this context it is relevant to note that the clip on the pole strap issued to the plaintiff carried its own warning. It read:

‘Warning – when in use keeper must be closed and locked’.

The letters spelling out the warning were stamped onto one side of the bar which constituted the second part of the opening mechanism.  Neither by size nor colour was the warning conspicuous, but the plaintiff accepted that he had read it.  In any event he was well aware of the message which the warning was meant to convey.  The plaintiff asserted that he put the admonition into effect every time he clipped the pole strap to the harness. 

83. He was asked if he had noticed any problem with the clip during the times he had worn it in the five weeks since it was issued. He said:

‘No, every time I went ... like you put it around the pole and you have it clipped in, you are looking at that time and yeah, never had a problem with it.  It is always clipped in.

Obviously, visually, it looked okay? - Yes.

So, really what you have to do is make sure the keeper springs back next to the outside of the clip? – Yes, that is right ...

Is that something that you would do over that five week period ... when you clipped on the pole strap onto the harness? – Yes.

Would you make sure it was closed? – Yes ... to clip it on you look at it and you make sure – it is my body that is going to fall.  You would make sure it is clipped on.’

84. The relevant instruction in the safe working procedure was that the linesmen should check that the safety clips close each time the harness is connected. But that very instruction was given by the stamped warning of which the plaintiff was aware. It was, in any event, a precaution which he said he undertook on every occasion he attached the pole strap. The employer’s failure to issue that instruction has no consequence for the case. Without it the plaintiff knew that such an inspection was an appropriate safeguard and, indeed, said he undertook it.

85. On my finding one would have to think that he did not look on this occasion, or did not look carefully and missed seeing the open gate. But that oversight does not help the plaintiff. If he failed to comply adequately with the instruction the employer was not at fault. Of course if the plaintiff is right and he observed that the gate had closed, the cause of his fall is a mystery and the plaintiff has failed to establish that it was a consequence of the defendant’s breach of duty.

86. Likewise, the defendant’s failure to issue the other instructions found in the safe working procedure had not been shown to have caused the plaintiff’s fall. The other instructions are those relating to the careful storage of harnesses and pole straps and their protection from the environment or accidental damage. The plaintiff has not been able to show that the defect in the clip was occasioned by improper storage or exposure to weather or dirt. The point is the same as that discussed in paragraphs [48] to [50].  It is not possible to say whether or not the defect would have occurred had the plaintiff cared for his harness and pole strap in any different way.

87. I must deal with a separate argument raised by the plaintiff. It was that the manner in which the plaintiff handled the new cross arm prior to attaching it to the king bolt was a separate cause of his fall. The procedure, said to be dangerous, was resting the cross arm across the pole strap prior to lifting it up and affixing it to the bolt. The linesman would be leaning backwards with his feet on the leg irons. He was held in position by the strap across which he laid the cross arm so that its weight was taken by the strap. There was no suggestion in the evidence that the clips or the strap was insufficient to bear the additional weight.

88. The point of the argument is that the defendant issued a second safe work practice in response to Ms Davies’ inquiries. This one forbad the practice of resting a cross arm over the pole strap and instead required the new cross arm to be fixed to the king bolt before it was untied from the hoisting rope.

89. It should be noted that the plaintiff’s evidence was that it was his practice to attach the cross arm without resting it on the pole strap. His description of what he did is the same as that required by the subsequent ‘work procedure’. It was Mr Leacy who testified that the plaintiff did rest the cross arm over the strap and had done so immediately before his fall. The state of this evidence makes it difficult to know what procedure the plaintiff followed. There is no reason to doubt either witness, but they both cannot be right. One must be mistaken. It is perhaps more likely that the plaintiff was correct in his description of his work practice, but Mr Leacy observed what actually happened. For the purposes of dealing with the argument I will assume Mr Leacy is right.

90. Mr Campbell’s argument is that the extra weight of the cross arm rested over the pole strap would have caused the strap to slacken and to rotate ‘changing the angle of the hook to the ring which in all probability caused the ring to slip out through the opening in the hook.’ This is a plausible explanation but there is no way of knowing if it is right. The submission is that to proceed in that way, resting a cross arm over the strap, was a concurrent cause of the fall because without the force applied by laying the cross arm over the strap, the defective clip would not have moved relative to the harness ring.

91. The next step in the argument is that the procedure of laying the cross arm over the strap was dangerous and should have been forbidden by the defendant prior to the fall, as it was afterwards.

92. In my opinion the argument should not be accepted. The relevant, or proximate, or legal, cause of the plaintiff’s fall was the defective clip. Whatever the plaintiff did which caused the clip to move relative to the ring so that it slipped out was not relevant to the analysis of causation. The clip should have closed and remained closed once attached to the ring. Had it done so it would not have mattered whether or not the plaintiff rested the cross arm over the strap.

93. In addition to that consideration there is not sufficient evidence to satisfy the onus of proof that it was the act of resting the cross arm over the strap which brought the open clip over the ring. That is no more than a plausible possibility.

94. As well it is not established that the practice was negligent, or unsafe. Mr Leacy gave evidence that the linesmen employed by the defendant continued to use that method after the plaintiff’s fall and the promulgation of the secure work procedure. There was no evidence from other linesmen or employers of linesmen that that particular procedure was unsafe. What made it unsafe, if it was unsafe, on the day of the plaintiff’s fall, was the defect in the clip, not something intrinsic in the procedure.

95. The evidence therefore compels the conclusion that the plaintiff has been unable to prove his fall and injuries were caused by the defendant’s breach of statutory duty which, I think, he has established. I reach the conclusion with regret. I have considerable sympathy for the plaintiff. He was seriously injured through no fault of his own. He was, in my assessment, a decent man and a competent and conscientious employee hurt in the course of his employment. The truth is, however, that, as far as one can tell, he fell because of a defect in the pole strap clip which neither he nor his employer had any reason to suspect existed.

96. There must be judgment for the defendant against the plaintiff.

97. The defendant’s claim for indemnity against the third parties must be decided even though the plaintiff’s claim against the defendant has failed and there will inevitably be an order for costs against the plaintiff. The defendant maintains its claim for indemnity in respect of the difference between the costs it will actually have paid to defend the plaintiff’s suit and the costs it recovers from the plaintiff, which will be assessed on the standard basis, and the costs of prosecuting the claim for indemnity which will fail. There is, I suppose, a possibility that the plaintiff will be unable to satisfy, or only partially satisfy, the costs order to be made against him. To the extent that it will be out of pocket by reason of that eventuality the defendant seeks reimbursement from one of its insurers.

98. At all times material to the action the defendant was insured under a policy of insurance, AW970756618 (‘the WorkCover policy’) issued by the first third party (‘WorkCover’) issued in accordance with s 52 of the WorkCover Queensland Act 1996. 

99. Section 52 provided:

‘Every employer must, for each worker employed ... insure and remain insured, that is, be covered to the extent of accident insurance, against injuries sustained by the worker for –

(b)the employer’s legal liability for damages.’

‘Accident insurance’ is defined by s 9 to be:

‘Insurance by which an employer is indemnified against all amounts for which the employer may become legally liable, for injuries sustained by a worker employed by the employer for -

(b)damages’.

‘Damages’ are, in turn, defined by s 11 to mean:

‘Damages for injuries sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages to –

(a)the worker ...’.

There is an exception.  The liability of an employer referred to in s 11(2):

‘... does not include a liability against which the employer is required to provide under ... a law of another state ...’

100. WorkCover’s contention, briefly put, is that s 155 of the Workers’ Compensation Act 1987 (NSW) required the defendant to provide, by insurance, against its liability to the plaintiff, so that its policy did not extend to the plaintiff’s claim.

101. The defendant was also the holder of a policy of insurance issued by the second third party pursuant to s 155 and s 159 of the Workers’ Compensation Act 1987 (NSW) (‘the Compensation Act’).  The policy was in the form specified by the regulation made pursuant to s 159.  The policy, and the form, provided:

‘Cover provided by policy

3. What the insurer is liable for

The insurer will indemnify the employer against all of the following sums for which the employer becomes liable during or in respect of the period of insurance:

(a)Compensation that the employer becomes liable to pay under the Act to ... any person who is a worker of the employer ...

(b)Any other amount that the employer becomes liable to pay independently of the Act (but not including a liability for compensation in the nature of workers’ compensation arising under any Act ... of another state ...) for an injury to any such person ...

(c)Costs and expenses incurred ... in connection with the defence of any legal proceeding ...’

102. Section 4 of the Compensation Act defines injury to mean personal injury arising out of or in the course of employment.  Section 9 provided that a worker who has received an injury should receive compensation in accordance with the Act from his employer.  Section 13 deals with claims for compensation for injuries received outside New South Wales.  It provided:

‘If:

(a)An employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and they are employed as a worker;  and

(b)Any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,

the injury is an injury to which this Act applies, and compensation is payable accordingly.’

103. Part 3 of the Compensation Act provides for compensation payable to injured workers.  Part 5 of the Compensation Act makes provision for claims for common law damages which it modifies.  Section 151E, entitled ‘Modified common law damages’ provides:

‘This division applies to an award of damages in respect of:

(a)An injury to a worker ...

being an injury caused by the negligence or other tort of the worker’s employer.’

104. Section 155 of the Compensation Act is in Part 7.  It provides:

‘An employer ... shall obtain from a licensed insurer, and maintain in force, a policy of insurance that complies with this division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (but not including a liability for compensation in the nature of workers’ compensation arising under any Act ... of another state ...) for any injury to any such worker.’

105. Before considering the authorities it is necessary to say something of the relevant facts.

106. At the time the plaintiff was employed by the defendant he was resident in Queensland.  Obviously the whole of his employment with the defendant took place in Queensland.  The defendant is a company registered in New South Wales, has its principal office there, and would appear to conduct most of its business activities in New South Wales.  However the contract which it was performing, and for which it employed the plaintiff, was one the obligations of which were wholly discharged in Queensland.  The plaintiff’s contract of employment was made in Queensland, at Ravenshoe, where he was interviewed by Mr Keith on behalf of the defendant.  That engagement followed an earlier telephone conversation in which the possibility of employment was explored, but no contract of service was made.  The plaintiff’s wages and other emoluments were identical to the wages and allowances paid to linesmen under the terms of an agreement the defendant had made with an industrial union in New South Wales.  Those conditions had been incorporated into a formal Enterprise Bargaining Agreement which was registered as an industrial agreement in New South Wales.  But that agreement had no force in Queensland and its terms, and even its existence, were probably not mentioned in the interview between the plaintiff and Mr Keith.  It is, though, a fact that the defendant took as the appropriate remuneration for the plaintiff the relevant terms of the Enterprise Bargaining Agreement.

107. The defendant’s contribution towards the plaintiff’s superannuation were paid into a fund, the head office of which was located in New South Wales.  His wages were paid into his bank account in Queensland from the defendant’s bank in New South Wales.

108. All these facts were urged upon me as being pertinent to the choice of insurer. The only relevant facts are, in my opinion, that the plaintiff was injured in Queensland and was employed in Queensland.  By ‘employed’ I mean that the contract of employment was made in Queensland and that the work he was employed to do was to be done in Queensland. 

109. The question to be answered is whether s 155 of the Compensation Act required the defendant to insure, in accordance with the provisions of Division 7 of that Act, against the liability it might incur in respect of its tortious liability to the plaintiff arising out of his injury in Queensland in the course of his employment.  There is no doubt that the WorkCover policy applies and obliges the first third party to indemnify the defendant in accordance with the terms of the policy, unless s 155 has the effect just described.

110. A similar question was addressed by the High Court in Mynott v Barnard (1939) 62 CLR 68.  The case concerned a contract of employment made in Victoria between a worker and builder, both resident in Victoria.  The worker was employed on the construction of a building in a neighbouring border town in New South Wales.  The worker was injured at work in New South Wales.  He died in Victoria.  The High Court held that his dependants were not entitled to compensation under the Victorian Act.  In doing so it followed a judgment of the Court of Appeal, Tomalin v S. Pearson & Son Ltd [1909] 2 KB 61 in which the English Workers’ Compensation Act was held not applicable where the worker, resident in England, was employed by an English company to work in Malta, where he was injured.  The Victorian Act at the time provided that if in any employment personal injury by accident arising out of and in the course of the employment was caused to a worker his employer should be liable to pay compensation.

111. Latham CJ made the point which, with respect, appears to have been overlooked in some subsequent decisions and the submissions (75):

‘... The question which arises is a question of the construction of a statute.  It is not a question whether a statutory provision, the construction of which is clear, is or is not within the territorial competence of the Legislature.  ...  The fact that a provision in a particular form would have been within the competence of the Legislature does not provide any positive assistance towards the true construction of a provision expressed in general terms without any territorial restriction.’

The question in this case is whether s 155, on its proper construction, obliged the defendant to insure against liability to pay the plaintiff damages, not whether to do so was with the competence of the New South Wales parliament.

112. Earlier (73-74) the Chief Justice had pointed out that the Court had been offered ‘an embarrassing choice of possible limitations’ on the territorial extent of the Act’s application. The possibilities were:

(a)The domicile or residence of one or both parties.

(b)The place where the contract of employment was made.

(c)The place where the work, under the contract of employment, was to be done, wholly or in part.

(d)The location of the accident.

(e)The proper law of the contract of employment.

(f)The jurisdiction with which the relationship of employment has a real and substantial connection, or a more real and substantial connection than with any other.

(g)The ‘localisation’ of the employer’s enterprise.

113. Having considered these possibilities the Chief Justice concluded (at 86):

‘... We have in the Workers’ Compensation Act ... a general law for compensating ... injuries.  The Act does not concern itself with the terms of any contract of employment.  ...  The Act is directed towards providing compensation for injury or death resulting from accidents to employed persons.  If those accidents take place in Victoria there is every reason why the Act should be held to be applicable.  ...  There is no apparent reason for regarding its general provisions as applicable to accidents which take place beyond Victoria.’

114. Rich J said in a brief judgment (87):

‘The law in question is one of local policy confined to the State of its origin and not intended to apply to any country so far as accidents are concerned.  ...  The employment of the deceased was carried out in New South Wales, and the accident which caused his death did not arise out of and in the course of a local employment.’

115. Starke J noted that (88):

‘Various constructions were suggested during the argument:

(1)That the Act is limited to personal injuries by accident sustained in Victoria:  the situs of the accident is the criterion of liability. ...

(2)That the place where the agreement or contract of employment ... was made determined the right to compensation ...;  in other words the lex loci contractus ...

(3)That the “proper law of the contract” ... determines the right to compensation ...’

116. His Honour chose the first. He said (at 89):

‘The Workers’ Compensation Act provides for compensation in respect to personal injuries by accident.  It is not a contractual right, but a right which is imposed by the Act upon the relationship or status arising from a contract of employment.  Either the accident or the contract would attract the constitutional authority of the Legislature, but the accident, in my opinion, is the circumstance that has attracted the exercise of the legislative power in the Workers’ Compensation Act.

Unless the Act otherwise provides, the implication is that the accident contemplated is an accident occurring within the territorial limits of the State of Victoria, and not one occurring outside those limits.’

117. McTiernan J took the same view, saying (94) that there was ‘nothing in the present case’ which differentiated it from Tomalin.

118. Dixon J took a different view. His Honour (at 91):

‘The general words of the statute must obviously receive an application restricted territorially:  ...  but it is not easy to discover the basis, or the nature, of the particular restriction to be applied.  Workers’ compensation is a liability neither in tort nor in contract.  It is a responsibility positivi juris and is annexed by law to a relationship, that of master and servant.  The parties may choose whether they will enter into the relationship;  but if they do the employer’s liability for, and the worker’s ... corresponding right to, compensation are legal consequences which are independent of and cannot be controlled by their agreement.  It appears to be natural to say that the statute is confined to “employments” within the territory.  The “employment” is the continual relationship, not the engagement or contracting to employ and to serve.  It is the service ... “carried on”.’

119. His Honour went on (92-93):

‘The test in all cases is the place where the employment is located.  When the course of employment requires the workman to perform work beyond the borders of the state a close question may at times be presented as to whether the employment itself is located here.  ...  The facts in each case, rather than juristic concepts, will govern such determination.  Occasional transitory work beyond the state may reasonably be said to be work performed in the course of employment here;  employment confined to work at a fixed place in another state is not employment within the state, for this state is concerned only remotely, if at all, with the conditions of such employment.’

120. As I read that authority there was a clear majority in favour of the proposition that it is the location of the accident which determines whether the Workers’ Compensation Act applied.  That was the express view of Latham CJ and Starke J.  McTiernan J appeared to express the same opinion.  Rich J may have propounded a compound test:  the location of the employment and the accident.  Notwithstanding this apparent clarity, subsequent cases have thought the test was ambiguous.  See e.g. remarks of Kirby ACJ in WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd CA 40263 of 1994 unreported judgment given 14 July 1995.  His Honour claimed that:

‘For many years there has been a state of uncertainty as to the connections that are required to bring into operation a local workers’ compensation Act when the character of the employment or the place of the injury are properly assigned to a jurisdiction other than that in which the claim ... is brought.  Part of the difficulty has arisen from the failure of the High Court of Australia in Mynott v Barnard ... to provide a clearer holding to guide other courts ... .  The absence of clear guidance has been the subject of complaint.  See eg Dykes v Dunn [1958] VR 504.’

121. Dykes was a case the facts of which were rather similar to those in Mynott.  The Victorian Act had been changed in the intervening period and provided:

‘If in any employment personal injury arising out of or in the course of the employment is caused to a worker his employer shall ... be liable to pay compensation in accordance with the ... Act.’

122. Smith J (517) repeated the observation that:

‘... There has been much difference of opinion as to what is the appropriate form of territorial limitation to be applied in statutory provisions expressed in terms similar to those of s 5 ...’.

His Honour discerned three constructions of Compensation Acts to impose a territorial limitation.  The first was to limit personal injuries within the territorial jurisdiction of the Parliament passing the Act.  The place where the injury occurred determined whether a compensation statute applied.  The second test was that the employment must be within the jurisdiction in the sense that the worker must be working or acting in the course of his employment within the jurisdiction at the time when the injury occurs.  Smith J pointed out that the two tests will provide the same answer.  If the injury occurred at work and the work was done within the jurisdiction the injury must always occur within the jurisdiction.  The third test was that advanced by Dixon J in Mynott.  His Honour described Dixon J’s opinion as ‘powerful authority’, as did Herring CJ who (508) thought it had ‘very much to commend it’.

123. It will be observed that whichever of the three tests is applied to this case the answer is that the Compensation Act does not apply to the plaintiff’s claim and the defendant’s resultant claim for indemnity.  The accident did not occur in New South Wales – first test.  The plaintiff was not carrying out his contract of employment (when he was injured) in New South Wales – second test.  The continuing relationship of employment occurred wholly within Queensland – third test. 

124. Difficulties arise in cases where a course of employment will take a worker from one state to another and hard questions may arise as to whether work was being performed in the state where injury occurred, or whether the worker’s presence was in the course of employment, or connected with it. There is no such difficulty in this case. It is one to which the remarks of Dixon J, last quoted, apply with full force.

125. As I mentioned, the question is one of statutory construction. One looks to see whether s 155, or some other provision of the Compensation Act, says anything about what territorial limit applies to s 155.  One approaches the construction with the principles expressed in Mynott, in mind.

126. The case of Goodwin v La Macchia & Ors [1999] NSWSC 963, a decision of Studdert J, is helpful.  Goodwin was employed as a deckhand/cook on a fishing trawler.  She was injured in January 1992 in Queensland waters.  Her employer was a Queensland company.  The contract of employment was made in Queensland.  The work the plaintiff was employed to do took place in Queensland.

127. The point in issue in Goodwin was whether the plaintiff’s damages should be assessed in accordance with the common law or the principles set out in Part 5 of the Compensation Act which restricted quantum.  Studdert J found that Part 5 had no application.  The decision does not precisely answer the question whether the obligation to insure found in s 155 extends to the circumstances of this case, but it points to the answer.

128. Studdert J said:

‘... The Act has no application to cases not involving “injury” as defined in s 4.  For relevant purposes, s 4 defines “injury” as meaning “personal injury arising out of or in the course of employment”.

However, the ambit of the statute to “injury” as defined extends outside New South Wales only in the circumstances contemplated in s 13(1) ...

Because the plaintiff’s employer had not been proved to have had a place of employment in New South Wales at any relevant time, and because it has not been proved to be present in New South Wales and there having employed the plaintiff, s 13(1) has no proven application in this case.

In my opinion it follows that Part 3 of the Workers’ Compensation Act which provides for compensation benefits has no application ...

Part 5 makes provision for common law damages in a modified form only in respect of “an injury to a worker” (s 151E(1)(a)).  However, s 151 expressly preserves common law liability not affected by the Act ...

The definition of “injury” ... applies to Part 3 and Part 5 alike, so that when Part 5 introduces modified common law damages, it does so “for personal injury arising out of or in the course of employment”, but there is nothing in Part 5 to indicate that the provisions of that part apply to injuries beyond those contemplated in Part 3.  It follows, in my opinion, that Part 5 can and does only apply to injuries sustained outside New South Wales if:

(a)An employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and

(b)If such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act.

Subparagraph (a) has not been satisfied here. 

...

Section 155 renders it compulsory for an employer to obtain and maintain in force a statutory policy. ...  It would be an extraordinary result if the legislature intended to render an employer which is not conducting business in this state and which is not employing a worker to carry out duties here, liable to an offence for not maintaining a policy complying with Part 7.’

129. I do not overlook the fact that the plaintiff’s claim was not one for compensation but for damages and the authorities to which I have referred dealt with claims for compensation. But the question here is whether s 155 of the Compensation Act obliged the defendant to insure against liability occurring beyond the borders of New South Wales.  There is no reason to think that the territorial limit relevant to insuring against liability to pay damages should be any different to that which applied to the obligation to insure against having to pay compensation.  That was, in essence, the view taken by Studdert J in Goodwin and I think it is right.

130. The same opinion was expressed by McMurdo J in Francis v Emijay Pty Ltd & Ors [2006] QCA 60 at para 46.  His Honour said:

‘Section 155 required insurance against two types of liability.  One was ... for workers’ compensation ... .  The second was the employer’s liability independently of the Act “for any injury to any ... worker”.  The evident intent was that the same worker ... should be the subject of insurance against each kind of liability.  Accordingly it is relevant to consider the circumstances in which an employer was liable under the Act for workers’ compensation.  A connection with New South Wales which was sufficient to expose the employer to a liability for workers’ compensation is likely to represent the necessary connection for the obligation to insure against that liability and otherwise pursuant to s 155.’

131. Section 13 of the Compensation Act lays down the test for extra territoriality when a claim is made for compensation.  The same test should apply to a claim for damages.  That is, s 155 obliges an employer to insure against its liability to pay damages if the employer has a place of employment in New South Wales, or is for a time present in New South Wales, and there employs a worker, and the worker while outside New South Wales receives an injury under circumstances which would entitle him to compensation had it been received in New South Wales.  I understand s 13 to mean that (if subsection (1)(b) is satisfied) compensation is payable if an employer has a place of employment in New South Wales and there employs a worker;  or if an employer employs a worker in New South Wales at a time when the employer was present in New South Wales. There is no doubt that the defendant had a place of employment in New South Wales and was always present there.  But he did not employ the plaintiff in New South Wales. 

132. Counsel for WorkCover in his very thorough submissions pressed upon me the cases of Emijay, Billpat, Burrows v The Workers’ Compensation Board of Queensland Appeal 6694 of 1996 unreported judgment 12 June 1997 Court of Appeal Queensland and Stanley v Gallagher CA 40537/01 Court of Appeal New South Wales unreported judgment given 14 June 2002.   All of these cases concerned a worker who was injured in New South Wales and was, when injured, in the course of his employment or travelling in connection with his employment.  The importance of the location of the accident is stressed in the judgments.  For example in Billpat Kirby ACJ said (22):

‘On the factual level, whatever may be the precise requirement in addition to the happening of the injury within the jurisdiction, there were very many connectors with this state which make the application of the New South Wales Act to the injury within the State neither surprising nor offensive to the Mynott principle.’  (emphasis added)

133. In Burrows the plaintiff was an interstate truck driver who ‘went to New South Wales on numerous occasions in the course of his employment and his injury occurred in New South Wales while he was working there in the course of his employment.’  In holding that s 155 of the Compensation Act did apply Fitzgerald P said:

‘However, some limitation must be imported into subsection 155(1) ...  Each of the respondent and his employer at the time when he was injured was a Queenslander and subsection 155(1) plainly was not intended to apply if the respondent had been injured whilst working in Queensland ... .

...

... The subsection was applicable to the respondent’s then employer in respect of the work related injury which the respondent suffered in New South Wales ...’.

134. I do not regard these cases as being of any assistance. Section 13 of the Compensation Act provides the test for extra territorial application of s 155.  Although the defendant was a New South Wales company it did not employ the defendant in that state.  Section 155 did not require the defendant to insure against the plaintiff’s claim.

135. I therefore declare that the first third party is liable to indemnify the defendant with respect to the costs incurred by the defendant in defending the plaintiff’s claim against it, and in prosecuting its claim for indemnity against the second third party.

136. The defendant’s claim against the second third party must be dismissed.