DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD [2006] NSWCA 86 | Case summary

Court of Appeal (NSW)|2006-03-28|Before: Mason P, Santow JA, McColl JA

The application form (MAS Form 2A) states: The medical assessor will only assess the injuries listed here.

80 The material led at trial relevant to the procedural fairness issue was the testimony of the plaintiff and the medical assessor's statement of reasons. 81 The plaintiff said (Black 47-49): Q. Do you remember in June last year being asked by your solicitors to see a doctor at Blacktown so you could be assessed for the Motor Accident Authority? A. Yes. … Q. Did you go to his rooms? A. Yes. Q. Did he ask you to tell him what happened? A. Yes. Q. And did you tell him what happened? A. Yes. Q. Did he ask you how you were feeling? A. Yes. Q. Did you tell him how you were feeling? A. Yes. Q. What did you tell him? A. I told him all the problem I was having with the neck. Q. Tell us what you told him. A. I told him I had neck spasm; numbness; cracking noise; I can't sleep on it at night; I have to keep changing positions. Q. Did you tell him about your hands? A. Yes, told him. Q. What did you tell him? A. I told him that it goes numb and goes down all the way to my fingers in both arms - sometimes one arm, sometimes both of them. Q. Did you tell him how often that happened? A. Yes. Q. What did you tell him about your sleeping? A. It is very hard for me to fall asleep. I keep waking up at night all the time. Q. Did you tell him what it is that wakes you up at night? A. Yes. Q. What did you tell him? A. I wake up at night, change positions, and basically it's very hard for me to fall asleep. Q. Did you tell him why that was? A. From the pain in my neck. Q. The pain where? A. In my neck. Q. Did you tell him generally how your neck is during the day? A. Yes. Q. What did you tell him? A. Same, always still, making cracking noises when I move it and the numbness that comes in both arms. Q. Did he examine you? A. For about one minute. Q. Can you tell his Honour what he did? A. He asked me to get up, measured my arms. Q. What part of your arms did he measure? A. Biceps here. Q. And did he do anything else? A. That's it. Q. Did he ask you to move your neck? A. I can't remember. Q. Did he ask you to look up or down? A. No. Q. Did he feel your neck, touch your neck at all? A. No. Q. How long do you think you were in his rooms? A. 7 or 8 minutes. Q. Did he do anything to measure the strength of your grip? A. No. Q. Did he do anything to measure the strength of your upper arms? A. No. Q. At any time did he ask you to move your shoulders? A. No. Q. Or your elbows? A. No. Q. Or at any time did he measure or test your forearms? A. Yes, with the tape measure. Q. Did he measure your forearms? A. This one (indicating) Q. No, your lower arm. A. No, just the top of it.

82 During cross-examination there was the following additional evidence (Black 239): Q. You are aware that Dr Pierides, in his report of 5 June 2003, says that you complained to him of some numbness in both arms which occurred mainly at night? A. Yes. Q. Remember that? A. Yes. Q. You were aware, no doubt, that in his report he makes mention of no other complaint by you? A. I did complain to him. Q. No, I didn't ask you that? A. Yes. Q. He makes no mention in his report of any other complaint? A. Yes. 83 Dr Pierides' report to the Medical Assessment Service explaining the reasons for his decision in the s61(1) Certificates stated (emphasis in original): Thank you for asking me to assess Khaled Eldebal whom I saw at my Blacktown rooms on the 3rd June 2003. He was unaccompanied. I confirm I received all the documents listed on the applications forms and all the documents listed on the reply forms. I was aware I was to assess the following issues in dispute: Whether the injuries have stabilised. Whether the injuries sustained in the subject motor accident have given rise to a permanent whole person impairment which exceeds 10%. History of Accident Mr Eldebal told me he was driving a mid 80's model Ford and was proceeding through a green light. A car came through a red light and hit the left hand side of his vehicle. The police and ambulance attended. The car was towed and not repaired. He did not go to hospital. The following day he saw his family practitioner complaining of neck pain. Prior to his motor vehicle accident he had had 2 previous accidents, one on the 15th April 2000 related to a work injury where he injured his right shoulder. On the 2nd May 2000 he had a further injury to his back while at work following a fall. He was not at work at the time of the motor vehicle accident due to being on workers compensation for these injuries. He did not bring any of his investigations with him but they were kindly supplied by Caroll O'Dea, his lawyers. The following investigations were supplied. He had a right shoulder ultrasound and x-ray dated the 19th April 2000 which was reported as normal. He had a thoraco-lumbar spine x-ray dated the 3rd May 2000 which suggested the L5/S1 disc may be narrowed He had a CT scan of his lumbar spine dated the 17th May 2000 which suggested there was a mild bulge at L5/S1 disc. He had an MRI gadolinium scan of his right shoulder on the 29th September 2000. This revealed some right shoulder pathology. He had an MRI scan of his back on the 30th October 2000 which revealed degenerative change in the L5/S1 disc with minor bulging. The investigation relevant to his current presentation was done on the 25th May 2001 and was a cervical thoracic MRI scan. This investigation report was in the correspondence you sent me. This investigation revealed degenerative change within the middle cervical discs from C3/4 to C6/7. At C5/6 it was reported that he had a moderate left postero lateral disc protrusion with osteophyte formation causing moderate to marked compression of the cervical spine cord and some possible associated flattening. Examination I examined his cervical spine as this was the only area of injury mentioned on the application and reply forms. He did have other injuries related to workers compensation claims which were currently before the courts and these were not examined. I confined my examination to his cervical spine. Examination of his cervical spine showed a lack of the normal cervical lordosis. He had a full range of movement of his cervical spine. There was no muscle spasm or guarding in the para cervical or trapezius muscles. Reflexes in the upper limbs were normal. There was no muscle wasting in either upper limb with both upper limbs measuring equally in the mid upper limb and mid forearm circumference. There were no radicular signs. He had good strength in both upper limbs. Grip strength, elbow flexion and extension and shoulder abduction and flexion all appeared to have equal and normal strength. Issues in dispute Whether the injuries have stabilised. I am of the opinion his injury has stabilised in that it has now been 2 years and 8 months since the subject motor vehicle accident. I am of the opinion [he] has a whole person impairment that will not change substantially or by more than 3% in the next year with or without medical treatment. Whether the injuries sustained in the subject motor vehicle accident have given rise to a permanent whole person permanent impairment which exceeds 10%. I utilised the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Fourth Edition and the Motor Accidents Authority Guidelines 2000 when assessing whole person permanent impairment. With reference to his cervical spine I am of the opinion he belongs to Diagnostic Related Estimates Category 1, Complaints & Symptoms. The reason for my opinion is there was significant degenerative change in his cervical spine but he had no radicular signs, no muscle spasm or guarding and no significant clinical abnormalities. There was no dysmetria. He did complain of some numbness in both arms but this occurred mainly at night. It was not in any particular radicular distribution.

Whole person permanent impairment of all assessed injuries Body part or Stabilisation Chapter No in AMA Guides Table No. %WPI * System Cervical Spine Yes 3 73 0% Total estimated whole person permanent impairment (*WPI) 0%

There were no injuries that were not stabilised 84 The submissions filed on behalf of the plaintiff in this Court explain the manner in which the procedural fairness issue is pressed. It is accepted that the circumstances of a particular case may indicate what response is appropriate (Kioa v West (1985) 159 CLR 550 at 594, 611-12). 85 It was submitted that the matters raised by the plaintiff when he attended the assessor were of crucial importance. According to the plaintiff's evidence, he complained about neck spasm, numbness, cracking, inability to sleep, numbness down both arms and into the fingers and pain and stiffness in the neck. The plaintiff said that the doctor did not do anything to measure the strength of his grip or the strength of his upper arms. 86 The plaintiff submitted that the doctor's recording of his presentation did not accord entirely with the plaintiff's account, in evidence, of the complaints he made to the doctor. Significantly, Dr Pierides noted that there was "no muscle spasm", whereas spasm was one of the symptoms specifically mentioned. Further, it was submitted that the plaintiff gave evidence that the numbness he experienced down both arms was sometimes in one arm and sometimes in both, whereas the doctor proceeded on an assumption that the arm numbness occurred at night only. 87 In my view, the plaintiff did not establish a basis for rejecting the Certificate. 88 The notified medical dispute was confined to the issue of determining the level of permanent impairment, in accordance with the Guides, referable only to the neck injury. The medical assessor had before him the Application for Assessment completed by the plaintiff's solicitors (Blue 593), the insurer's Reply (Blue 605), the medical reports provided by the solicitors and the plaintiff's Personal Injury Claim form (see Blue 551, 600). Dr Pierides was required to assess permanent impairment in accordance with the Guides (s133). 89 Relevant extracts from the Guides were in evidence. As regards spinal impairment, the assessor was directed to use the DRE (ie diagnostic related estimate) model for assessment and to start with Table 70 as amended in the Guides as a guide to the appropriate category for the spine impairment (Guides Chapter 4 s4.5, Blue 638). It is common ground that Table 70 directed the assessor to an inquiry as to the application of DRE Cervicothoracic Category III Radiculopathy. If present, there is a 15% whole-person impairment. The Guides state: Description and Verification: The patient has significant signs of radiculopathy, such as (1) loss of relevant reflexes or (2) unilateral atrophy with greater than a 2-cm decrease in circumference compared with the unaffected side, measured at the same distance above or below the elbow. The neurologic impairment may be verified by electrodiagnostic or other criteria (differentiators 2, 3, and 4, Table 71, p109). 90 Assuming in the plaintiff's favour that his sworn testimony recalling what occurred in the surgery is to be preferred to Dr Pierides' nearly contemporaneous written report, the fact remains that the plaintiff was a layman. Merely because he complained of certain symptoms does not establish that those complaints were overlooked. The Guides speak of "significant signs of radiculopathy". They state that impairment estimates are to be based on the history, objective findings and data, and any other information collected during the evaluation (s4.11). The assessment must follow the pathways stipulated in the following extract (emphasis in original): Radiculopathy 4.25 Radiculopathy is the impairment caused by malfunction of a spinal nerve root or nerve roots. Assigning of a DRE for spinal injury includes the presence or absence of radiculopathy (Category III in the lumbo-sacral region). In general, in order to conclude that a radiculopathy is present two or more of the following signs should be found: • loss or asymmetry of reflexes (Table 71, p109 AMA 4 Guides) • muscle atrophy and/or decreased limb circumference (Table 71, p109 AMA 4 Guides)

• muscle weakness which is anatomically localised to an appropriate spinal nerve root distribution • reproducible sensory loss which is anatomically localised to an appropriate spinal nerve root distribution. 4.26 Note that radicular complaints of pain or sensory features that follow anatomical pathways but cannot be verified by neurological findings do not constitute radiculopathy. They are described as guarding in Table 71 (p109 AMA 4 Guides). 4.27 Global weakness of a limb related to pain or inhibition or other factors does not constitute weakness due to spinal nerve malfunction. 4.28 Electrodiagnositc tests are rarely necessary investigations and a decision about the presence of radiculopathy can generally be made on clinical grounds if a competent examination is performed. 4.29 Exceptional cases of radiculopathy may have pain of radicular nature and only sensory changes, confined to an anatomical distribution of a specific spinal nerve root. 4.30 Imaging studies must support clinical findings of radicular malfunction. That is to say that the anatomical features reported to be abnormal on the imaging studies must be consistent with the distribution of the radicular malfunction. If more than one modality of imaging has been performed there should be anatomical consistency in the findings of abnormality.

91 Dr Pierides' report shows that he examined the plaintiff's cervical spine. He twice records absence of muscle spasm and of radicular signs. The reference to numbness occurring "mainly at night" does not show that the doctor proceeded on the assumption that arm numbness occurred at night only, as submitted. 92 As to the level of whole person permanent impairment, the doctor utilised the Guides referable to the cervical spine, this being the only area of injury mentioned on the application and reply forms. The doctor noted the plaintiff's complaint of some numbness in both arms, recording that this occurred mainly at night. He stated that the numbness was "not in any particular radicular distribution". 93 The plaintiff led no medical evidence to show that the assessor had not complied with the Guides nor to suggest that the symptoms complained of (according to the plaintiff's recollection) disclosed clinically significant signs of radiculopathy assessable by the criteria in the Guides. In this, I include the finding of normal grip strength, not overlooking the plaintiff's evidence that the doctor did nothing to measure the strength of his grip. 94 In this Court, senior counsel for the plaintiff submitted that the symptoms complained of provided clear evidence of referred pain and of radiculopathy as per the Guides. I cannot accept either proposition. 95 Nor can I accept counsel's invitation to infer want of procedural fairness merely by placing the plaintiff's evidence at trial as to his symptoms side by side with the medical assessor's report (cf CA Tr p91). In my view, the plaintiff has not established any denial of procedural fairness. It is unnecessary to address the additional requirement of establishing that admission of the Certificate would cause substantial injustice to the plaintiff. 96 The award of $25,000 for economic loss was modest, but so flawed as to justify Ms Darke's complaints in grounds 21-30 of her Notice of Appeal. No reasons were provided beyond the bald statement that "his past economic loss, which I assess broadly speaking at approximately $100 a week but round it out to a figure of $25,000" (sic). There were additional problems deriving from his Honour's attempt, earlier in the reasons, to apportion the economic loss stemming from the earlier injuries and the injuries in the motor vehicle accident. The judge suggested various percentages (J31, 32) which read as little more than stabs in the dark lacking any attempt to grapple with the factual and legal issues involved in apportioning the respective impacts of the three accidents. 97 At the time of the motor accident the plaintiff was not working, but in receipt of workers compensation. The appellant Darke had argued that the motor vehicle accident was insignificant in its level of aggravation of the earlier injuries. There was medical evidence to support such an argument (Blue 108, 382, 418). The appellant was entitled to have these arguments addressed. Likewise the possible application of ss126 and 127 of the MACA. 98 The issue of economic loss referable to the motor accident must be remitted to the District Court. This includes past and future economic loss and superannuation.

Disposition 99 For these reasons, the verdicts for the defendants in proceedings DC 8848 of 2001 and DC 3576 of 2002 must be set aside. In lieu, there should be verdicts for the plaintiff for damages to be assessed with a new trial to take place on the issues of damages, contributory negligence concerning the ladder claim (Network only) and the cross-claims between the defendants. 100 In the appeal concerning the motor vehicle case (DC 4591 of 2003) the appeal should be upheld with the issues of economic loss being remitted for determination at the same time as the new trial in the other two proceedings. 101 The plaintiff should have the costs of the first trial referable to the industrial accidents. The costs of the first trial referable to the motor vehicle accident should be determined by the judge hearing the new trial having regard, among other things, to the plaintiff's failure to challenge the Certificate successfully and to the amount ultimately recovered in those proceedings. 102 In each of the appeals the respondent or respondents should pay the appellant's costs and, if qualified, have a certificate under the Suitors' Fund Act 1951. 103 It is well known that a certificate under the Suitors' Fund Act is less than a full indemnity. This is particularly disturbing in the present case given that the conduct of the parties at trial has in no way contributed to the litany of errors patent in the judgment below. I propose that the Registrar be directed to send a copy of this judgment to the Attorney General with a request that he give favourable consideration to an ex gratia payment covering so much of the costs of trial as were thrown away in consequence of the manner in which the issues were handled in the judgment. 104 The parties are urged to attempt to settle their remaining differences. Indeed I would reserve liberty to any of them to apply within 14 days for an order directing a referral to mediation if there is not agreement to do so. Absent any such application, the orders I have proposed should be made 14 days after publishing these reasons. 105 SANTOW JA: I agree with Mason P. 106 McCOLL JA: I agree with Mason P. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD (IN LIQ) ;EL DEBAL v KARI & GHOSSAYN PTY LTD [2006] NSWCA 86

American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCA 72, 222 ALR 411 Booksan Pty Ltd v Wehbe [2006] NSWCA 3 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Davey v Skinner [1961] SR(NSW) 648 H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422 Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18 Hodgson v Crane (2002) 55 NSWLR 199 CASES CITED: Kioa v West (1985) 159 CLR 550 Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 Lenz v Trustees of the Roman Catholic Church [2005] NSWCA 446 Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 Pro-Krane Pty Ltd v Nobbs, CA unrep, 15 November 1996 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 TNT Australia Pty Ltd v Christie [2003] NSWCA 47 Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428

1 MASON P: Regrettably, there must be a new trial on almost all issues. In a reserved judgment prepared with the assistance of a transcript, but obviously delivered ex tempore, the primary judge overlooked critical evidence, failed to address all pleaded causes of action, decided points that had not been argued and failed to give reasons for several key findings. The matters not requiring a new trial were found against the plaintiff, but since the evidence was clear and uncontradicted, the plaintiff should have the benefit of this Court's determination of them in his favour. 2 Three proceedings in the District Court were heard concurrently by Christie ADCJ. The plaintiff in each was Mr Khaled El Debal. 3 The claims related to an industrial accident on 15 April 2000 at the Kari & Ghossayn (K & G) workshop at Chipping Norton, an industrial accident on 2 May 2000 at the Olympic Village, Homebush and a motor vehicle accident on 18 October 2000 involving the admitted negligence of the appellant Darke. 4 The plaintiff was employed by Network Welding (Network), a body hire company specialising in welding that hired out the services of its employees to companies that, it was alleged, assumed their own duty of care analogous to that of an employer (see TNT Australia Pty Ltd v Christie [2003] NSWCA 47. See also Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] 2 WLR 428 (Eng CA)). 5 The accident on 15 April 2000 occurred at the workshop of K & G to which the plaintiff had been sent under such an arrangement. The plaintiff's primary task was to weld two long steel beams that weighed hundreds of kilograms. When the beams were joined parallel to each other they formed what was known as a "soldier". An overhead crane travelling along a fixed beam on the roof and operated by a K & G employee moved them to a pile where they were stacked. The welded soldier was supported by two chains that converged to a single chain attached to a hook. As it travelled east-west and was then lowered to the stack a little to the south, the load was steadied by the plaintiff who was acting under the direction of the K & G employee. The plaintiff's right shoulder was wrenched when one of the chains around the soldier shifted or slid and the load he was steadying with his right hand moved suddenly to the left. 6 The plaintiff sued Network as employer (in DC 8848/01) and K & G as the person to which his services had been hired (in DC 3576/02). The claims were framed in negligence, including allegations of an unsafe work system. Network and K & G cross-claimed against each other for indemnity and/or contribution under the Law Reform (Miscellaneous Provisions) Act 1946. 7 On 2 May 2000 the plaintiff injured his lower back when a ladder gave way under him because it wobbled or slipped on damp grass that was sloping or uneven. On this occasion he had been sent by Network to work for Abigroup Pty Ltd (Abigroup), the head contractor constructing the Olympic Village. He took his working instructions from Mr Todd Williams, an Abigroup employee, whom the plaintiff regarded as the foreman on site. 8 The plaintiff had to weld mesh screens onto the first floor balconies of villas. The balconies were well over two metres above sloping ground that had recently been turfed and was wet from sprinklers. On previous days the plaintiff had used a cherry-picker or a scissor-lifter, equipment supplied by Abigroup. But, because of the state of the grass, Mr Williams instructed the plaintiff to work from an "A" frame aluminium ladder that he provided. The ladder was unaccompanied by any timber to secure its base, any rope or wire to secure it to the balcony, or any assistant to steady it generally. The plaintiff was forbidden access to the balcony from the inside, because new carpet had recently been laid. Throughout the day the plaintiff moved the ladder from time to time as the particular workplace changed. He noticed that its legs were sinking into the grass. The fall occurred at about 3pm when he was working near the top of the ladder wearing a welding mask, carrying welding equipment in one hand and steadying himself on the ladder with the other hand. 9 The plaintiff sued Network as his employer (in DC 8848/01) and Abigroup as the head contractor for whom he was working (in DC 3576/02). The pleaded causes of action were negligence and statutory counts under regs 73 and 80 of the Construction Safety Regulations. Network and Abigroup cross-claimed against each other relying upon the Law Reform (Miscellaneous Provisions) Act 1946 and contractual rights said to stem from their sub-contract agreement. 10 As indicated, negligence was not in issue for the motor accident on 18 October 2000. Damages for that injury were to be assessed in accordance with the Motor Accidents Compensation Act 1999 (MAC Act). 11 The trial took place over six days in late October and early November 2004. The plaintiff was the only witness and he was accepted as truthful in relation to his description of the events that befell him (J p9). His claims of negligence and breach of statutory duty were supported by the unchallenged report of an engineering and ergonomics expert. There was also a slew of medical reports, none of them challenged. As the judge acknowledged, the plaintiff was entitled to favourable Jones v Dunkel inferences given the unexplained absence of key defence witnesses, including Mr Ghazi the foreman/crane driver at the K & G workshop, Mr Kari, the proprietor of K & G who witnessed the accident, Mr Williams, the Abigroup supervisor or anyone from the plaintiff's employer, Network. 12 A major issue in the motor accident case was whether the plaintiff passed the 10 per cent whole person impairment threshold required by the MAC Act. The defendant in those proceedings had a "conclusive" certificate to the contrary, but the plaintiff contended it was vitiated for want of procedural fairness. 13 The reasons for judgment were delivered ex tempore on 14 December 2004. They are discursive and the transcript is unrevised. Sometimes relevant evidence is set out. At other times the judgment merely cites a string of transcript references as support for a proposition (nothing wrong with that). Unfortunately, there are areas where the critical evidence is neither set out nor cited and where statements that there was no evidence on a particular matter are demonstrably wrong.

The ladder accident 27 The judge accepted that the plaintiff was obeying the directions of Abigroup employees "who seem to have been in charge of quite a lot of building activity" going on at the Olympic Stadium (J p15). Abigroup was the head contractor. Through its supervisor Mr Williams it controlled the plaintiff's activities at the site, and it exercised a relevant coordinating role. 28 His Honour records that the plaintiff undoubtedly fell from a ladder and that nobody disputed this. The evidence about Mr Williams refusing access to the accustomed scissor-lifter and cherry-picker because of the newly laid lawn was also set out. Likewise the evidence about the plaintiff doing welding at the top of the ladder that suddenly fell over. This unchallenged evidence was apparently accepted, as it should have been. 29 Other passages from the plaintiff's evidence are set out in the judgment, demonstrating that, as far as the plaintiff knew, the ladder simply went from under him (esp Black 190). It was also recognised that the plaintiff had himself put the ladder in its place knowing it was unsupported and on uneven ground. The plaintiff had fallen from a ladder once before. 30 I interpose that this shows that there is a live issue as to contributory negligence in the claims against the employer, Network (Workers Compensation Act 1987, s151N). But the defence is not available to Abigroup in relation to the statutory counts having regard to the fact that the plaintiff was not a "worker" qua Abigroup and to the date of the accident (see Booksan Pty Ltd v Wehbe [2006] NSWCA 3 at [160], [172]-[173]). 31 The reasons for judgment are opaque as to why this negligence claim failed. At times his Honour appeared critical of the plaintiff for not taking greater precautions to secure the ladder. But the operative grounds appear to be two-fold. First, Judge Christie rejected the suggestion that requiring the plaintiff to work from a ladder bespoke negligence in the employer or head contractor (J pp25-26). Later in the reasons, during discussion of the expert's report concerning this accident the judge observed (p28): What is missing from that is whether the assumed system involving the ladder was itself inherently dangerous.

35 The employer and the party owing a duty analogous to that of an employer did not discharge their pro-active duties of care by leaving it up to the plaintiff to do the best he could in the circumstances. The High Court has recently described the employer's duty as: … a duty to take reasonable care to avoid exposing the employee to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work. ( Czatyrko v Edith Cowan University [2005] HCA 830 at [12]).

36 There may well have been some contributory negligence that Network can point to, but the defendants were themselves unreasonable in the discharge of the duties that lay upon them. 37 The case is distinguishable from Van der Sluice v Display Craft Pty Ltd [2002] NSWCA 204, invoked by the relevant defendants, because the plaintiff was directed to use the ladder in obviously risky circumstances. The defendants ought reasonably to have foreseen the risks involved in the very task of climbing the ladder and working from it wearing a mask. 38 It is no answer for Network to contend that it did not learn of Mr Williams' requirements about the ladder before the accident happened. The non-delegable nature of the relevant duty meant that it could not be discharged merely by sending the employee into the care and control of another. Unlike cases such as Pro-Krane Pty Ltd v Nobbs, CA unrep, 15 November 1996 and Harrison v Lau Nay Nominees Pty Ltd [2004] NSWCA 18, invoked by Network, it is easy to identify what ought to have been done for this plaintiff on the day in question, to have avoided the accident. 39 There is an even clearer reason why Network and Abigroup were each liable to the plaintiff for the injury suffered from his fall from the ladder. This is because of breaches of regs 73 and 80. These breaches were pleaded and are addressed in detail in the expert's report (Blue 30-37), yet they were not considered in the judgment under appeal. 40 Relevantly, reg 73 provides:

(9) A step ladder shall be set up on a level and firm footing and shall not be stood on loose bricks or other loose packing. …. 42 Unlike the previously used cherry-picker and scissor-lifter, the unheld, unsecured and unstable ladder was not a safe means of access to the outside of the balconies (cf reg 73 and reg 80(3)), nor was its placement and securing compliant with reg 80(4) and (6). The plaintiff was working between 2.4 and 3.4m above ground level (Blue 65, Black 174). 43 I do not understand Network or Abigroup to contend to the contrary. And they accept, as they must, that the judge's failure even to address this component of the plaintiff's case means that a new trial on this ground would be the minimum remedy to which the plaintiff is entitled, subject to what follows as regards Abigroup. The plaintiff contends on the other hand that the evidence of breach of the regulations is entirely in his favour. I agree with the plaintiff on this point. 44 The one defence to liability on the statutory counts, raised only by Abigroup, was the contention that this defendant was not a person that directly or by its servants or agents carried out any construction/building work at the Olympic Village site. 45 The leading case dealing with the scope of this provision is H C Buckman & Son Pty Ltd v Flanagan (1974) 133 CLR 422. The decisions in this Court were recently reviewed in Lenz v Trustees of the Roman Catholic Church [2005] NSWCA 446 at [49]-[64]. 46 Abigroup contended that Network alone was actively carrying out the relevant building work at the site. We were taken to provisions in the Formal Instrument of Agreement between Abigroup and Network (Blue 449), especially the terms requiring the subcontractor (Network) to execute and complete the work it had quoted for and to supply the necessary equipment and materials. Abigroup placed particular reliance on a clause requiring Network to supply "all necessary scaffolds, mobile scaffold, scissor lifts etc" for the work (Blue 507). 47 The plaintiff agreed that he would ask the Network supervisor, Mr Elias, if he needed anything. However, his understanding is not conclusive, nor does it exclude Abigroup from having a relevant involvement in the construction work in which the plaintiff was involved. 48 The Buckman line requires close attention to be paid to the tasks actually performed on the worksite. However, the regulations do not require that only one person in the chain may be liable if injury occurs. It is conceivable that both a contractor and a head contractor may each be so actively involved in a relevant portion of building work as to render each "the active person, that is the one who carries out the work in actual fact" (Davey v Skinner [1961] SR(NSW) 648 at 651, Buckman at 428, Lenz at [58]). The ultimate inquiry is a factual one, as Heydon JA pointed out in Kolodziejczyk v Grandview Pty Ltd [2002] NSWCA 267 at [83]. 49 Here the evidence showed that, despite the terms of the formal contract between head contractor and subcontractor, Abigroup provided and regulated the means of access required by the welders as they performed their tasks at the Olympic Village. Thus it was that Abigroup supplied the cherry-picker or scissor-lifter used by the plaintiff up to the day of the accident. In any event, it was definitely Abigroup that supplied the ladder. Ladders are not mentioned expressly in the Contract as a Network responsibility, but it would not matter if they were. In the Agreement, Abigroup retained the right to give directions to its subcontractor (Blue 468). 50 In my view, Abigroup did not wholly delegate the welding work. It coordinated and supervised it on site in the same way that the head contractor Maggiotto did in Maggiotto Building Concepts Pty Ltd v Gordon [2001] NSWCA 65 (see Lenz at [61]-[62]). Abigroup did more than just supply the ladder (cf Buckman at 429). Through Mr Williams, it instructed the plaintiff not to use the accustomed access of a cherry-picker of scissor-lifter or the safe access from inside the villas. 51 I do not understand Network to suggest that it was exempt from liability under the regulations. Its concern is to preserve its claim to contribution against Abigroup. 52 For these reasons, both Network and Abigroup were liable for the injury suffered in the ladder fall. These should be verdicts for the plaintiff accordingly. The matter should be remitted for a new trial limited to the issues of damages, contributory negligence (Network only) and the cross-claims between the tortfeasors.

DARKE v EL DEBAL; EL DEBAL v NETWORK WELDING PTY LTD

At a glance

Court

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Judgment (9 paragraphs)

Cases Cited (15)

Cited By (6)