Bourk v Power Serve P/L & Anor

SUPREME COURT OF QUEENSLAND

CITATION: Bourk v Power Serve P/L & Anor [2008] QCA 225

PARTIES: STEPHEN JOHN BOURK (plaintiff/appellant) v POWER SERVE PTY LTD ACN 060 977 513 (first defendant/first respondent) WORKCOVER QUEENSLAND (second defendant/second respondent) GIO WORKERS’ COMPENSATION (NSW) LTD (third defendant/not a party to the appeal)

FILE NO/S: Appeal No 2170 of 2008 / SC No 4647 of 2002

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 8 August 2008

DELIVERED AT: Brisbane

HEARING DATE: 29 July 2008

JUDGES: Keane, Muir and Fraser JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: (a)The appeal be allowed; (b)Judgment for the first respondent against the appellant given on 26 February 2008 be set aside; (c)The order for costs against the appellant in favour of the first respondent made on 6 March 2008 be set aside; (d)There be judgment for the appellant against the first respondent on the appellant's claim in the sum of $694,317.05; and (e)The first respondents pay the appellant's costs of and incidental to the appeal. Further orders of McMurdo P1.Costs orders [(c) and (e) above] set aside 2.Parties are allowed to make submissions as to the appropriate costs orders in accordance with the Practice Direction

CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – BREACH OF STATUTORY DUTY – CAUSATION – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – where s 28(1) Workplace Health and Safety Act 1995 (Qld) imposes an obligation on the employer to ensure the workplace health and safety of its workers – where the appellant argued that an employee need only prove that his injury is causally connected with an unsafe act or omission of his employer to establish a breach of s 28 Workplace Health and Safety Act 1995 (Qld) – whether the appellant must further prove that had there been a system of inspections and checks the defect in his pole strap would have been detected before he fell / EMPLOYMENT LAW – THE CONTRACT OF SERVICES AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE SYSTEM OF WORK – GENERALLY – where the appellant was unsuccessful in proceedings against his employer, the first respondent, for negligence and breach of statutory duty due to injuries sustained by the appellant in a fall from a power pole when the pole strap attached to his safety harness failed – where the primary judge found that the failure of the pole strap caused the injury – whether the first respondent had implemented a safe system of work – whether the appellant had established causation / Workplace Health and Safety Act 1995 (Qld), s 22, s 27, s 28, s 37 / Bonnington Castings Ltd v Wardlaw [1956] AC 613, applied / Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 15, applied / Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410, considered / Hardy v St Vincent’s Hospital Toowoomba Ltd [2000] 2 Qd R 19; [1998] QCA 86, cited / McWilliams v Sir William Arrol & Co Ltd & Anor [1962] 1 WLR 295, considered / Mount Isa Mines Ltd v Peachey [1998] QCA 400, cited / Schiliro Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518; [2000] QCA 18, cited / Schulz v Schmauser [2001] 1 Qd R 540; [2000] QCA 17, applied

COUNSEL: W D P Campbell, with F H Dawson, for the appellant / R J Douglas SC, with K F Holyoak, for the first and second respondent

SOLICITORS: Bennett & Philp for the appellant / HBM Lawyers for the first respondent / McCullough Robertson for the second respondent

KEANE JA: I agree with the reasons of Muir JA and the orders proposed by his Honour.

MUIR JA: Introduction

The appellant, a 31 year old linesman employed by the first respondent, was injured in a fall from a power pole when the pole strap attached to his safety harness failed. He commenced proceedings against the first respondent claiming damages for negligence and breach of statutory duty. On 26 February 2008 judgment in the proceedings was given against him with costs. He appeals against those orders.

Before considering the grounds of appeal it will be useful to explain the facts which gave rise to the claim. The primary judge explained the function of the pole strap as follows:

"[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.

. . .

[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."

The accident occurred when the appellant was engaged in replacing a cross arm on a power pole on 26 August 1999. The cross arms were 2.7 metres in length and weighed between 50 and 60 kilograms. A workmate of the appellant's, Mr Leacy, gave evidence of having observed the appellant at and immediately before the time of the accident. The reasons state in this regard:

"[15]Mr Leacy … said that when the cross arm was lifted to a height level with the [appellant he] 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 [appellant] 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 [appellant] rested the cross arm over the pole strap that he fell."

The primary judge found that when the appellant fell Mr Leacy observed that one end of the appellant's pole strap was attached to his harness but the other was not. The pole strap was seen by Mr Leacy to follow the appellant to the ground and to fall on or beside him. His harness was seen to be intact and undamaged. The harness rings were unbroken and secure in their fastenings but only one end of the pole strap was attached to a ring.

The primary judge held that the detachment of one end of the pole strap from the harness ring resulted from a defect in the mechanism of the clip. But his Honour concluded that the evidence offered no explanation of how the part of the clip, open when the gate failed to close completely, became juxtaposed to the ring. His Honour found that:

"The weight of the [appellant'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 appellant's supervisor, Mr Kemp, who was also a linesman, examined the pole strap the day after the accident. Of that examination, his Honour said:

"[21]… 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."

Miss Davies, District Manager for Workplace Health and Safety examined the pole strap on 2 September 1999. 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." Her impression was that the clip looked "worn", that it had "minor indentations" and a "clay type contaminate throughout".

In describing the pole strap clip his Honour said:

"[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 had 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.

Relevant findings

The primary judge held that there was an obligation imposed by Section 28(1) of the Workplace Health and Safety Act 1995 ('the Act') on the first respondent to maintain safety equipment provided to its employees and that s 27 obliged the first respondent to choose an appropriate way of discharging the obligation to maintain the strap poles. It was submitted on behalf of the first respondent that it had discharged its obligation to ensure the appellant's workplace health and safety by supplying new equipment which complied with the relevant standard. That submission was rejected for the following reasons:

"[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 primary judge found however that the breach, in itself, was insufficient to establish liability as the appellant was still obliged to prove that the breach of the Act caused the appellant's injury. His Honour explained, "that is to say 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."

The primary judge concluded that there was a lack of evidence on the point and no way of knowing if a monthly inspection would have detected the defect. That conclusion was based on the evidence that the defect was not apparent on every occasion the gate was opened and had been detected by Mr Kemp and Ms Davies only after each of them had opened the gate several times. Another reason for the conclusion was that there was no evidence as to when the defect first manifested itself. The primary judge considered it possible that the defect may not have become apparent until the day of the accident.

The appellant's contentions

One ground of appeal was that the primary judge erred in finding that the appellant had to prove that had there been a system of inspections and checks, the defect in his pole strap would have been detected before he fell.

Counsel for the appellant argued that in order to establish a breach of s 28 of the Act an employee need only prove that his injury is causally connected with an unsafe act or omission of his employer. It was submitted that to require further proof of a further causal connection with a negligent act or omission of the employer ignores the established legal principle that s 28 effectively adds to the duty imposed upon employers at common law and does not require that negligence be established.

The respondents' contentions

Counsel for the respondents sought to uphold the primary judge's finding that the appellant "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." The following argument was advanced to this end.

The finding was supported by the necessity for a plaintiff claiming damages for breach of statutory duty to establish that the breach of duty caused his injury. McWilliams v Sir William Arrol & Co Ltd & Anor¹, Duyvelshaff v Cathcart & Ritchie Ltd² and other authorities establish that for the plaintiff to succeed: the breach of statutory duty must be identified; breach proved and it must be proved also that "the accident was causally associated with the breach of duty."

The Act is pro-active in its approach and directed at obviating or reducing risk. Its focus is not on damage claims. In order to determine whether a breach of s 28(1) had occurred and was causative of loss, it is necessary to identify the breach. That, relevantly, needed to be done by reference to sub-sections (2) and (3) of s 27. Those provisions contemplate the identification of a particular risk and the selection of means to obviate it. The employer could have chosen, under s 27, as an appropriate way of discharging the employer's obligations under s 28(1), "a system of inspections and checks" of the safety strap. If the diligent implementation of such a system by the employer would not have prevented the injury on the balance of probabilities, the employee would have failed to establish that his injury was caused by the employer's breach of s 28(1).

Relevant provisions of the Act

The Act relevantly provides as follows:

"Ensuring workplace health and safety

22.(1) Workplace health and safety is ensured when persons are free from—

(a)death, injury or illness caused by any workplace, workplace activities or specified high risk plant; and

(b)risk of death, injury or illness created by any workplace, workplace activities or specified high risk plant.

How obligations can be discharged if no regulation etc. made

27.(1) This section applies if there is not a regulation or ministerial notice prescribing a way to prev ent or minimise exposure to a risk, or an advisory standard or industry code of practice stating a way to manage the risk.

(2) The person may choose any appropriate way to discharge the person’s workplace health and safety obligation for exposure to the risk.

(3) However, the person discharges the workplace health and safety obligation for exposure to the risk only if the person takes reasonable precautions, and exercises proper diligence, to ensure the obligation is discharged.

Obligations of employers

**28.(1)**An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work.

˙Defences for div 2 or 3

**37.(1)**It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove—

(a)if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk—that the person followed the way prescribed in the regulation or notice to prevent the contravention; or

(b)if an advisory standard or industry code of practice has been made stating a way or ways to manage exposure to a risk—

(i) that the person adopted and followed a stated way to prevent the contravention; or

(ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or

(c)if no regulation, ministerial notice, advisory standard or industry code of practice has been made about exposure to a risk—that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention."

Consideration of the ground of appeal

Section 28(1) of the Act imposes on an employer the obligation to ensure the workplace health and safety of its workers. "Ensure" is used in its normal everyday meaning of "make certain" or "make sure".³ The primary judge's finding that the first respondent breached its obligations under s 28(1) was unchallenged on appeal.

Breach of s 28 gives rise to a civil cause of action.⁴ The primary judge held that the appellant must "prove that the [first respondents] breach of the Act caused his injury." That conclusion, with respect, was correct. There is ample support for the proposition that a plaintiff claiming damages for breach of statutory duty must prove that the breach caused or materially contributed to his injuries⁵.

The breach of s 28(1) found by the primary judge was breach of an obligation to "eliminate the risk of injury by providing proper safety equipment and maintaining or ensuring the maintenance of that equipment in good order." His Honour found that there was no system or "appropriate way" of ensuring that the pole straps were maintained in good working order, no system or "way" of inspections or checks and no program to require employees "themselves to inspect or check the efficacy of their pole straps." The argument that the mere supply of new equipment complying with the relevant standard was sufficient to fulfil the first respondent's obligations under s 27(1) was rejected.

The appellant's rights by virtue of s 28(1) may be distinguished from those of the deceased employee in McWilliams v Sir William Arrol & Co Ltd & Anor,⁶ an authority relied on by the respondents*.* The employee in that case was a steel erector who was not wearing a safety belt when he fell 70 feet from a steel tower and was killed. The relevant statutory provision was:

"Where any person is to work at a place from which he is liable to fall a distance of more than ten feet, then … means shall be provided so far as is reasonably practicable, by fencing or otherwise for ensuring his safety".

The trial judge found that even if a safety belt had been provided, the employee would not have worn it. It was submitted on behalf of the appellant that "if the deceased's hypothetical refusal to wear a safety belt must be recognised as the effective cause of his not wearing one and hence of his death, the failure of the [employer] to provide a safety belt should not be ignored as a causative factor."

Viscount Kilmuir LC said in respect of the submission⁷:

"The answer in my view must be that there are four steps of causation: (1) a duty to supply a safety belt; (2) a breach; (3) that if there had been a safety belt the deceased would have used it; (4) that if there had been a safety belt the deceased would not have been killed. If the irresistible inference is that the deceased would not have worn a safety belt had it been available, then the first two steps in the chain of causation cease to operate."

Lord Reid addressed the same issue, observing⁸:

"If I prove that my breach of duty in no way caused or contributed to the accident I cannot be liable in damages. And if the accident would have happened in just the same way whether or not I fulfilled my duty, it is obvious that my failure to fulfil my duty cannot have caused or contributed to it. No reason has ever been suggested why a defender should be barred from proving that his fault, whether common law negligence or breach of statutory duty, had nothing to do with the accident."

In Duyvelshaff v Cathcart & Ritchie Ltd,⁹ another of the decisions relied on by the respondents, an employed plumber, working in an air-conditioning shaft in a building under construction, fell from a plank resting on ledges inside the shaft and was injured. He sued for damages, alleging breach of statutory duty. The employer had provided a ladder for the employee's use but the employee, without the employer's knowledge, failed to use it. Paragraph (b)(i) of Regulation 19A(1) of Regulations made under the Inspection of Scaffolding Acts 1915 to 1966 (Qld) provided that any person employing another to work in a dangerous position where it was impracticable to erect any scaffolding or gear should provide a properly fitting safety belt.

It was held that if the provision of the ladder was a breach of the regulations, it had been established that there was no causal relationship between the breach and the employee's fall.

Gibbs J discussed the question of causation in the following passage from his reasons:¹⁰

"However, if it be assumed that for some reason or other the respondent was required by statute to provide the appellant with a safety belt, and failed to do so, the appellant, as plaintiff, bore the burden of proving that the provision of a safety belt would, more probably than not, have averted the injury. Statements in the earlier authorities, such as Vyner v Waldenberg Bros Ltd [1946] KB 50, at 55 ; [1945] 2 All ER 547, and Roberts v Dorman Long & Co Ltd [1953] 1 WLR 942, at 946 ; [1953] 2 All ER 428, that once a workman has proved a breach of statutory duty, and that he has suffered injury which could have resulted from the breach, the onus of proof shifts to the employer of showing that the breach was not the cause of the injury, are not good law. The general principle is clear, that the plaintiff must prove, on the balance of probabilities, that the breach of duty caused or materially contributed to his injury: Bonnington Castings Ltd v Wardlaw [1956] AC 613, at 620 ; [1956] 1 All ER 615; McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295 ; [1962] 1 All ER 623; Wigley v British Vinegars Ltd, supra. This means that “it is for the plaintiff to prove on a balance of probabilities both that the safety measures would have been effective and that the injured person would have made use of them had they been available”: Wigley v British Vinegars Ltd ([1964] AC, at 325) In some cases the fact that the employer is in breach of his statutory duty may itself provide some prima facie evidence of a causal connexion between the breach and the subsequent damage: McWilliams v Sir William Arrol & Co Ltd ([1962] 1 WLR, at 302) or, in other words, “the breach of duty coupled with an accident of the kind that might thereby be caused is enough to justify an inference, in the absence of any sufficient reason to the contrary, that in fact the accident did occur owing to the act or omission amounting to the breach of statutory duty”: Betts v Whittingslowe (1945) 71 CLR 637, at 649. Nevertheless, the burden of proving the causal connexion between the breach and the damage remains on the plaintiff."

Mason J's reasons contain similar statements of principle.¹¹

The statutory duty in Duyvelshaff, if it had been found to exist, in the relevant circumstances, was a duty to provide equipment of a particular type. That being so, it is readily understandable why the employee could not establish causation without proving that he would have used the equipment had it been supplied.

In McWilliams v Sir William Arrol & Co Ltd the alleged breach of the employer's statutory duty to provide "means, so far as is reasonably practicable, by fencing or otherwise for ensuring [the employee's] safety" was failure to provide a safety belt.¹² The alleged breach was thus a failure to supply a particular item of equipment and, moreover, the duty to supply it was a qualified one.

Under s 28(1) the employer's duty to ensure the employee's safety is absolute. It is not expressed as a duty to supply equipment, advice, training, conditions, or assistance of a particular type or at all. Subject to the operation of s 26, s 27 and s 37, if an employee such as the appellant is injured through the failure of a piece of necessary safety equipment provided to him by his employer there is a breach of the obligation imposed by s 28(1). The employer has failed to ensure the safety of the employee. Causation is established. If the employee's safety had been ensured, the employee would not have been so injured.

A requirement that the appellant prove that "had there been a system of inspections and checks the defect in the pole strap would have been detected" is not to be found in s 28(1). Nor is it justified by s 27. An employer can avoid liability, where there is no regulation, ministerial notice, advisory standard or industry code within the meaning of s 27(1), by choosing "any appropriate way to discharge the … workplace health and safety obligation for exposure to the risk"¹³ and by taking "reasonable precautions" and exercising proper diligence to ensure the obligation is discharged.¹⁴ The employer may also establish a defence under s 37¹⁵ or discharge the obligation imposed by s 28(1) by acting in accordance with s 26. Section 26 has no relevance for present purposes. Section 27 however does not define the obligation under s 28(1). It states, in quite general terms, a means by which such obligation may be discharged.

The unchallenged finding at first instance was that the first respondent did not have the benefit of a defence under s 27. That being the case, the appellant was entitled to succeed. Whether the defect in the pole straps would have been detected by a proper "system of inspections and checks" diligently carried out would have been relevant to the application of s 27 or s 37 had there been such a system. Absent such a system and the application of s 27(3) or s 37(1)(c) what such a system may or may not have detected was irrelevant. It sufficed for the appellant's purposes that he was provided by his employer with a defective pole strap which failed, causing him injury.

Conclusion

The appellant has other grounds of appeal, but in view of the foregoing, it is unnecessary to consider them. After the hearing the legal representatives of the parties, most commendably, agreed on the amount of the judgment to which the appellant would be entitled should the appeal be allowed. The agreed figure of $694,317.05 is made up of $850,000 less $185,537.51 refund to WorkCover Queensland plus interest at 10% per annum from 26 February 2008 to 8 August 2008 of $29,854.56.

I would order that:

the appeal be allowed;

judgment for the first respondent against the appellant given on 26

February 2008 be set aside;

the order for costs against the appellant in favour of the first respondent made on 6 March 2008 be set aside;

there be judgment for the appellant against the first respondent on the appellant's claim in the sum of $694,317.05; and

the first respondents pay the appellant's costs of and incidental to the appeal.

FRASER JA: I agree with the reasons of Muir JA and with the orders proposed by his Honour.

Footnotes

1. [1962] 1 WLR 295 at 306. ↩

2. (1973) 47 ALJR 410. ↩

3. Hardy v St Vincent's Hospital Toowoomba Ltd [2000] 2 Qd R 19; Mt Isa Mines Ltd v Peachey [1998] QCA 400. ↩

4. Schiliro v Peppercorn Child Care Centres Pty Ltd (No. 2) [2001] 1 Qd R 518. ↩

5. Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 168; Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620; McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295 at 306; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 at 419; Schulz v Schmauser [2001] 1 Qd R 540 at 550, 551. ↩

6. [1962] 1 WLR 295. ↩

7. McWilliams v Sir William McArrol & Co Pty Ltd [1962] 1 WLR 295 (HL). ↩

8. At 305 – 306. ↩

9. (1973) 47 ALJR 410. ↩

10. Supra at 416 – 417. ↩

11. Supra at 419. ↩

12. Supra At 297. ↩