Gregory Warren Thomson v Twin Towns Employment Enterprises Limited

Occupational Health & Safety Act 2000 LEGISLATION CITED: Occupational Health & Safety Regulations 2001 Civil Liability Act 2002

Vairy v Wyong Shire Council (2005) 223 CLR 422 Rockdale Beef Pty Ltd v Carey [2003] NSW CA 132 CASES CITED: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Rauk v Transtate Pty Ltd (2001) Aust Torts Report 81-592; appeal (upheld) [2002] NSWCA 222

PARTIES: Gregory Warren Thomson Twin Towns Employment Enterprises Limited

COUNSEL: Mr R Harrington (Plaintiff) Mr R Cavanagh (Defendant)

The plaintiff claims damages for injuries he suffered on 22 September 2003 when he was working on a farm as part of the Commonwealth Government 'Work for the Dole' scheme. That scheme was administered for the Commonwealth by the defendant. The defendant's contractual obligations were to provide and organise labour to work on various sites. In this instance, the work was being carried out on a wild life refuge/farm operated by a community organisation.

The plaintiff was directed by the defendant's supervisor to erect a cyclone wire mesh fence onto existing fencing wire. That wire had been strung along and was either on top of, or adjacent to, a trench which had been dug some short time previously. The trench and existing wire/fence line was on a downhill slope. While using both his hands above his head to attach the cyclone wire mesh, the plaintiff slipped on the dirt, clay and other spoil from the trench and fell into the trench. His lower left leg snapped and his tibia and fibula were shattered.

1 The injury occurred on 22 September 2003. The plaintiff filed his statement of claim on 14 August, 2008.

2 At the time of the accident, the plaintiff was receiving social security/unemployment benefits. He was required to participate in a Commonwealth Government scheme known as the 'Work for the Dole' as a pre-condition for his continued receipt of those benefits. The plaintiff was required to participate in the scheme between 18 August 2003 and 15 February 2004.

3 The plaintiff has discontinued his action against the original first defendant, the Commonwealth of Australia. I was not informed of the reasons for this. However, I note that each page of the Work Experience Service contract entered into by the defendant provided that the defendant would "indemnify and hold harmless, the Commonwealth from and against any loss or liability arising out of the use of the contract (or any part of it) howsoever caused, including due to the negligence of the Commonwealth."

4 The remaining defendant, Twin Towns Employment Enterprises Ltd., trading as "Job Futures SEQ", contracted with the Commonwealth to provide work experience services for Work for the Dole participants and organise labour to work on sites pursuant to that scheme. The defendant arranged and organised for the plaintiff to attend for work as part of that scheme.

Defendant's contractual obligations with the Commonwealth

5 The contract between the defendant and the Commonwealth entitled "Community Work Coordinator Services Contract 2002" (Exhibit 13) was tendered. That indicated as part of the preamble (preamble B) that "the contractor has fully informed itself on all aspects of the work required to be performed". Attachment B specified that 'The contractor must ensure that the conduct of Work for the Dole Activities does not put people at undue risk of injury or mistreatment'.

6 Attachment G ('Service Standards') to that contract provided, under the heading 'Risk Management', that the service standard was to ensure that "Procedures exist for risk management which ensure that strategies are in place for managing risks including 'reasonable steps' for preventing risks". The indicators of that standard of service that the defendant as Community Work Co-ordinators, were contracted to provide, would "identify, prioritise, manage and monitor risks associated with their service delivery activities". Schedule 1, section A of this contract (page 29) provided for the defendant to 'provide materials, equipment, on-site services, supervision, insurance, training, clothing and transport for the Work for the Dole participants'. Schedule A of the contract dated, 26 August 2003 between Job Futures SEQ and Job Futures SEQ (Exhibit 14, page 3) was in similar terms as well as requiring the defendant as part of its services "Ensuring that Participants on the Work for the Dole activities are properly supervised at all times…".

7 In September 2003 the defendant placed the plaintiff with the Tweed Maritime Museum where he worked for some two to three weeks. The plaintiff was then directed by a message relayed to him from the defendant to attend the next day at the defendant's premises so that he could be allocated for work in another area. He attended the defendant's premises the following morning.

8 The plaintiff was not told what he would be doing by way of work nor where he would be working, nor in particular, the kind of locality in which he would be working. Nor was he told what to wear when he attended for work. He presumed that he would be engaged in another casual job of a similar nature to that in which he had been engaged. He wore the same style and manner of clothing he had been wearing while working in the Maritime Museum. Specifically, he was wearing flat soled boots or shoes which did not have a ripple or non-slip sole.

9 No inquiries were made of the plaintiff's experience in the work he was to perform. He had never done any fencing work nor had he worked on a rural property other than to do mowing on a ride-on mower. There was nothing in his past employment or other history that would have suggested that kind of experience.

10 The accident in fact happened on the plaintiff's first day on the work site. He was untrained and inexperienced in that work.

11 After arriving at the defendant's premises the plaintiff- along with 8 to 10 other persons who were also participants in the same scheme - was transported on a bus provided by the defendant to the farm on which the accident occurred. While on the bus he was informed by Cregan Webley, another participant in the Work for the Dole scheme, that he, Mr Webley, had been working on a site doing fencing work. That was the first the plaintiff knew that he would be working on such a site or doing such work.

12 The plaintiff noticed that others in the group of workers were wearing steel capped work boots. He said that he asked for similar boots but was told by the supervisor that none were available. I accept the plaintiff's evidence in that regard.

13 The accident occurred on a section of land at the Longueville Park Alpaca Stud at Palm Vale in northern NSW. The farm was operated by a non-profit organisation caring for distressed animals known as Tweed Valley Wildlife Carers Inc. That entity had sought labour from the defendant. The particular Work for the Dole activity was to include the construction of fences for animals on the farm. Neither party sought any orders against Tweed Valley Wildlife Carers Inc. nor the owners of the property/Stud.

14 The area to which the plaintiff and the others were taken was a rural farming area. There were no pathways nor roads leading from the drop-off point to the actual site on which the plaintiff was to work.

15 When the plaintiff arrived at the farm, he was told by the defendant's foreman/ supervisor, Mr Robert Ball, to follow Mr Webley, who had worked on the same site on the preceding day. Mr Ball said that Mr Webley would explain to him what to do. I accept that Mr Ball did not accompany the plaintiff to the actual location of the fence nor explain what needed to be done at that site. Mr Webley told the plaintiff what to do and worked with him for the remainder of the morning.

16 Mr Ball gave the plaintiff a set of fencing pliers. I accept that there were no other or sufficient instructions given to the plaintiff as to how to erect the fence, in particular, Mr Ball did not show the plaintiff how to erect the fence nor how to clip the cyclone mesh to the straining wires. I also find that - at least on that morning - there was no inspection by Mr Ball of the trench nor the spoil from the trench over which any person erecting the fence would need to traverse as part of the task.

17 Photographs tendered by the plaintiff (albeit taken some time after the accident) showed the gradient of the angle of the hill and the terrain on which the plaintiff and Mr Webley were working and the angle of the fence to be constructed. The plaintiff identified the precise section of the fence where the accident occurred.

18 The photographs the defendant produced were said to have been taken a week after the accident. I note that those photographs show that the grass in the area had completely grown over the area where Mr Ball himself said that the trench had been dug. The photos bore the date 21 April 2007. Evidence was led to show that those photographs were handed to an investigator, Mr Geoff Thompson, at an earlier date - probably January, 2007.

19 None of the photographs tendered by either side were taken contemporaneously. None displayed what the circumstances were at the time of the incident - particularly the depth of the trench, where the soil was deposited, the level or quantity of soil dispersal over the areas where the plaintiff had to work and traverse while he was erecting the fence. However those taken by the plaintiff seem to be more representative of the particular area where the accident occurred. The plaintiff identified the specific place where the accident occurred. Mr Ball's evidence was quite vague in that respect both as to where the relevant section was or where the soil had been deposited. By contrast the plaintiff was very specific on both counts.

20 The purpose of the fence was to keep animals in an enclosure. The animals in contemplation were either wallabies or alpacas, both relatively large and mobile animals which would presumably need a strong fence of considerable height to prevent their escape. In addition to securing the bottom of the cyclone mesh, the trench had been dug to a level to prevent animals burrowing under the fence. The cyclone wire fence was to be placed some distance underground in the trench.

21 The fence was to be cyclone-wire mesh clipped to pre-existing straining wires strung between steel posts and star pickets that had been inserted into or dug into the ground. The cyclone wire fence was to be constructed alongside another smaller, proposed post and rail fence. There was also a trench or a ditch or depression that had been dug alongside the fence. The trench was about 6" wide and on average about 4" to 6" deep - although deeper in parts. The trench ran between the wooden posts and along the area where the plaintiff was directed to work.

22 Once the cyclone wire was attached to the straining wires and pulled into a vertical position, the bottom of the cyclone wire was to be placed into the ditch that had been dug.

23 The area on which the fence was to be constructed was a rocky and sloping downhill area. When the plaintiff arrived at the area to be fenced, the post and rail fence had already been in the process of construction. Timber fence posts had been placed in holes, which had been dug to accommodate the posts. Metal posts as well as star pickets had also been inserted in the ground on the downhill side of the post and rail fence. I find that fencing straining wire had been placed through the steel posts and some star pickets. The cyclone fence was to be clipped at about every 6' interval on three sections of that straining wire. The top section or strand of wire was about 1.8 metres above the ground.

24 Soil, including shale, rocks, stones and loose gravel, originating from both the hole posts and the trench had been distributed across the ground. It was uneven and in heaps. The plaintiff had to traverse the soil to reach the fencing wire to which the cyclone mesh was to be fixed.

25 The plaintiff and Mr Webley unrolled a 50 metre section of cyclone wire mesh. They commenced working at about 10 am and had used about 30 metres of the fence by the time the accident occurred at about 1pm.

26 The plaintiff was told by Mr Webley to use pliers, which he had been given by Mr Ball, the defendant's supervisor, to attach cyclone wire fence to each of the single strand of straining wire running through the star-pickets. The pliers were hand-operated and contained a cartridge of clips that were used to attach the cyclone wire.

27 The plaintiff had to secure the top of the cyclone fence material to the top supporting wire strand. The position of the star-pickets and the cyclone fence to be erected was on the downside of the post and rail fence. I find that the slope of the land meant that the plaintiff had to reach across the existing post and rail wires to reach the tension wires running through the star pickets which would hold the cyclone wire mesh.

28 The height of the top straining wire meant that the plaintiff had to hold the pliers above his head with both hands while at the same time holding onto the section of cyclone wire mesh which was to be attached to the straining wire. He gave evidence, which I accept, that this meant that he had to look at and concentrate on that section of the wire rather than looking down where his feet were located or to be placed. There is no evidence about the actual weight of such a section of the cyclone wire mesh however, it was at least 1.8 metres in width and was attached to a longer section of wire. Holding such a section of cyclone wire mesh, while at the same time holding pliers above one's head, could reasonably be expected to cause loss of balance, particularly where the soil surface under the plaintiff's feet was both uneven and sloping.

29 A safety audit report was tendered showing that work should not have been carried out over 1.8 metres. Further, that a National Parks Officer should have been present when the fence was to be erected and that "proper PPE" (personal protective equipment) should be provided and worn at all times.

30 After the plaintiff had been working and clipping the section of the wire mesh to the straining wires, he stood up from a crouching position in which he was while he clipped the cyclone mesh to the bottom strand of the straining wire. The plaintiff's weight while he was in that position was directed downwards following the slope of the hill.

31 The plaintiff stood up with his hands above his head holding the pliers in his right hand and the next section of the cyclone mesh in his left hand as part of the process of moving up to the next section. He was in the process of standing up, or had just stood up and was moving to his right, while he continued to clip up the next section of the mesh fence. That meant that he had to traverse across the rubble and soil area. It was while he was in that position that his feet slid on the rubble and, picking up momentum, he fell or slid forward. His left foot went into the trench by the fence.

32 The plaintiff is a person about 5' 10" in height. At the time of the accident he weighed about 95 kilograms. The gravitational momentum of him falling down the gradient of the slope of the soil refuse mound propelled him towards and into the trench.

33 The plaintiff's leg snapped. His left lower leg including his tibia and fibula were shattered. Thereafter the plaintiff said he was in excruciating pain. He could see his bone immediately under the skin and it was pushing out.

34 At the time of the accident the plaintiff was working on his own and Mr Webley was about 20 metres away. The supervisor, Mr Ball, was about 250 metres away. Other participants in the scheme came to his aid. An attempt was made to roughly splint his leg with branches from the nearby bush. He was then placed on the back of a tractor and transported to the bus onto which he was carried and placed on the floor of the bus. The bus then travelled on the corrugated dirt road. All movements caused him extreme pain. There was no medication for him. No one in the party, including Mr Ball the supervisor, had any first aid or related accident or safety training.

35 The plaintiff was ultimately taken to the Tweed General Hospital where he arrived about 2 to 2 and ½ hours later. No doctor was available that evening at the hospital. He was operated on the next day. He remained in hospital for about 5 days.

36 A procedure was undertaken for an open reduction and internal fixation of the fractured tibia. That involved the insertion of a plate and ten screws to stabilise the fracture.

37 The plaintiff remained in hospital with his leg in high elevation for a period of time. He was mobilised on crutches and could not bear any weight for some months. He lived with his mother for about 6 months, being bed-ridden for about three months. His mother did all his household chores, cooking and bathing him along with his laundry. His mother was then aged about 63. Lifestyle and activities 38 Following the accident the plaintiff was unable to return to the sporting activities he had previously undertaken including more active sports such as water skiing, squash, and touch football. His weight increased to about 120 kilograms. Issues

39 There is no issue but that the accident occurred while the Plaintiff was engaged in that work on that site to which he had been taken by the defendant's servant or agent. Against that background, the issues for determination are:

A. What is the nature and extent of the duty owed by the defendant to the plaintiff, if any?; and

B. Depending on whether there is such a duty, and depending on whether there has been a breach of that duty, what damages have been suffered by the plaintiff?

40 Evidence was given by the plaintiff and his father. No issue was taken with the medical reports tendered by the plaintiff.

41 The defendant called the Job Futures supervisor, Mr Ball.

42 Neither side called Mr Webley. The plaintiff said that he had no subsequent discussions with him after the accident. A statement of Mr Webley dated 23 September, 2003 was tendered (Exhibit 16).

43 The plaintiff is a 41 year old man - his date of birth being 10 January 1967. He is separated with one dependent child aged 10. He is currently unemployed and on single parent benefits. He lives in a house on a substantial block of land with a garden in Burnett Heads near Bundaberg in Queensland with his daughter. That house is owned by his father. He receives some assistance from his step-mother with the heavy housework, vacuuming and the like to the extent of about 3 hours per week.

44 The plaintiff had been unemployed for about 18 months immediately before the accident. Prior to that he had been in the workforce almost 20 years, including a 10 year term in the Royal Australian Navy (RAN) from which he retired in as a leading A/B seaman. He was a boxing champion in the Navy. Thereafter he worked as a security officer in some clubs and night-clubs, then as the owner/operator of a restaurant in Pottsville Beach. That business went bankrupt and he then worked for some months in a 7/11 store in Coolangatta. He was retrenched from that last position.

45 At various times in his life the plaintiff had been a fit, strong person. He was a diver in the RAN. He used to play a lot of sport and had worked in the security industry.

46 Since the accident, the plaintiff has been unable to pursue his prior sporting and lifestyle activities although he can occasionally play golf but only if he hires a buggy to limit the time on his legs. His particular interest is in training and racing greyhounds. He also walks his greyhounds for short periods. He gave evidence that he could not stay on his feet for longer than a two-hour period.

47 It appears that about the time of the collapse of his restaurant, the plaintiff's use of alcohol and cannabis increased. He also had difficulties with his then long-term relationship with the mother of his daughter. He candidly admitted that at that earlier stage he was an alcoholic.

48 There appears to be no suggestion that the plaintiff was affected by either drugs or alcohol at the time of the accident. The relevance of that evidence appears to be that the plaintiff's subsequent employment difficulties resulted, at least in part, from his drug and alcohol consumption. The plaintiff's evidence was that he completed an abstinence and withdrawal programme conducted by Alcoholics Anonymous and then the Salvation Army. It does not seem that he is completely abstinent from alcohol but is abstinent from cannabis usage.

49 Mr Ball, the Job Futures supervisor of the participants on the day, gave evidence. He provided a report on the day of the accident stating that the plaintiff had fallen into a trench. His recollections of the events which had occurred almost five years ago were quite vague in a number of respects. He said that the Job Futures organisation had not been asked to return to the site. He left that employment some six months after the accident.

50 Mr Ball had no fencing qualifications nor any qualifications nor expertise in safety management nor risk assessments of work-sites. Mr Ball had not been shown the safety audit report prior to the accident and before going to the site.

51 Mr Ball also said that, if the plaintiff was doing the job on his own, it would have been an unsafe work practice. I accept that plaintiff's evidence that he was working on his own at the immediate time of the accident and that Mr Webley was some 20 metres away.

52 The parties do not agree on the gradient nor condition of the land on which the fence was placed and the underlying fence was dug immediately prior to the accident. As noted, the photographs of the area produced by both sides were taken at later dates, although I consider that those produced by the plaintiff were more relevant in demonstrating the section of ground and the fence which was to be constructed. The plaintiff's evidence and recollection was much more precise than that of Mr Ball.

53 In evidence, the plaintiff asserted that the area surrounding the trench on both sides (upper and lower) were covered in debris (dug from the trench and for the fence posts). The defendant alleges that there was no debris (in the form of shale, rocks etc) surrounding the trench. Rather, there was only soil from the trench dug out from it, and that this soil was only heaped onto the lower side.

54 Mr Ball, with others, dug the trench on an earlier day. It was his evidence that the contents of the trench were heaped on the lower side as this was the most convenient.

55 The plaintiff contends that, given that the trench was dug by previous Work for the Dole (untrained) participants with shovels and mattocks, it is likely that its contents would be expelled in both directions.

56 There is also a contest as to the content expelled by digging the trench - whether this was 100% soil or a combination of other material such as shale or rocks and whether it was crumbling or firm. Neither party was in a position to produce tangible evidence of this matter. Resolution of this small detail is in part irrelevant as in my view, the contents of the trench were likely to have been found on both sides of the trench. The plaintiff's fall into the trench was in my view caused by him slipping on the soil - whatever its make-up or wherever its precise location - while he had his hands above his head affixing the mesh fence. It is most likely that the soil would have constituted an uneven and unstable surface.

57 A further issue was where the plaintiff was immediately prior to the accident and, in particular, on what side of the fence being the uphill or downhill side and the stage of construction of the fence - in particular, whether there were wires between the wooden fence posts or not.

58 The plaintiff said that he was working from the uphill side of the fence. Mr Ball said that he thought the plaintiff was working from the downhill side. Mr Webley in his statement said that he saw 'Greg on the outside of the fence tying the ties to wire fencing.' He observed the plaintiff to slip '…backwards, his ankle went into a trench and he could hear bones cracking.'

59 Some time was taken up in the hearing on the issue of whether the plaintiff was standing up from a crouching position when he slipped or whether he had actually stood up and was moving a couple of steps to the side when he slipped. In my view it is more likely that the plaintiff was moving onto the next section of the fence and the straining wire but that overall it makes little difference to the immediate cause of the accident which was that the plaintiff slipped and fell on the uneven soil surface on which he was required to both work and traverse.

60 The defendant questions the credibility of the plaintiff. The defendant contends that the evidence the plaintiff gave is inconsistent, particularly in evidence related to tax returns, levels of experience and abilities/ disabilities. The plaintiff, in my opinion gave a plausible reason for his failure to lodge tax returns, that is, that that he did not earn up to the income tax threshold for these periods.

61 Where there is a conflict between the evidence of the plaintiff and Mr Ball, I prefer the evidence of the plaintiff, in particular, as to the position of the accident, the amount of dirt and soil deposited, where the dirt and soil was positioned, where Mr Webley was at the time of the accident, and whether, and where, the wire was between the fence posts.

62 Where there are any substantial issues of credibility either in relation to the circumstances of the accident nor to damages suffered by the plaintiff, I accept the evidence of the plaintiff - other than that I think that he has exaggerated his current needs for domestic assistance. I also have some reservations as to whether he is prepared to undertake any form of employment but rather, that he would prefer to work for his father or another sympathetic employer who will let him rest his leg every two hours.

63 The plaintiff claims that the relationship and duty of care owed by the defendant to the plaintiff is one of, at least, equivalence to that of an employer/employee. In the circumstances of this case where the defendant knew, or should have known, that it was dealing with mainly unemployed persons, such as the plaintiff, who had little relevant work experience. In those circumstances, the duty on the defendant is submitted to be higher than would be the case with a skilled or trained workforce or employee to ensure that the workplace and equipment was such that the system of work, including supervision, was in place in a way which would ensure the safety of those working.

64 The plaintiff submits that he was working at the direction of the defendant, with equipment provided to him by the defendant and in accordance with the only system in place.

65 The plaintiff further submits that the defendant's negligence is self-evident and that simple steps could, and should, have been taken by the defendant to ensure the plaintiff was pursuing his work as directed in a safe place at work and a safe system of work with proper safety equipment.

66 The specific submissions are that the defendant should have organised a system and provided the relevant tools to ensure that the area of ground and soil over which the plaintiff had to traverse while connecting the cyclone wire mesh fence to the straining wires was level. It is submitted that that would have been obvious had a proper safety audit been carried out on the site.

67 The plaintiff also relies on statutory counts of negligence including that the defendant was the controller of the site and that therefore the relevant provisions of section 10 of the Occupational Health and Safety Act 2000 and regulation 34 of the Occupational Health and Safety Regulations 2001 are applicable.

68 The defendant denies that there was no duty of care owed by the defendant to the plaintiff. It submits that it is not a training authority nor did it employ anyone. It was not the occupier of the premises; it was merely acting as an employment agency administering the scheme in accordance with the governments requirements, and, as such, owes only the duty to exercise reasonable care in the circumstances.

69 Counsel refers to Vairy v Wyong Shire Council (2005) 223 CLR 422 at page 14 and [66] of the judgement as to the scope of the duty, whether the duty is "fair, just and reasonable". He submits that the appropriate question to be asked in determining whether a duty existed is whether a reasonable person in the defendant's position should have foreseen that its conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

70 The defendant also submits that it did not take on any duties from either the Commonwealth or the occupier. Its only duty was to act reasonably - which, counsel submits, it did. Further, that what the plaintiff was required to do was simple menial work not requiring any complex directions. It was not incumbent on the supervisor to point out the obvious need to take care. The magnitude of the risk was, in any event, slight.

71 The defendant also denies that there is any evidence of causation. In relation to the issue of whether ripple sole shoes should have been supplied, the defendant submits that it has not been established by the plaintiff that the supply of such work boots with ripple soles would have made any difference or that the plaintiff would not have slipped on the surface.

72 The defendant also submits that the fact that the plaintiff had been able to erect the fence for a 30 metre section without incident or harm meant that the accident happened as a result of the plaintiff's failure to keep a proper lookout as to where he was going and, in particular, where he was putting his feet.

73 The defendant argues that it is not a labour hire business nor an employer. In that context the decision of the New South Wales Court of Appeal in Rockdale Beef Pty Ltd v Carey [2003] NSW CA 132 is relevant. That concerned an injury to an independent contractor (who was not an employee) while herding cattle at the feedlot owned by the appellant. There, the Court held that the relevant duty of care was akin to that which would have been owed to the contractor had he been an employee. The duty of care arises in circumstances where there is no need for the defendant to give directions as to when and where the work is to be done nor to coordinate the various activities but where reasonable care on the part of a person in the position of the defendant affects the way in which the work is to be undertaken and the safety of the work site.

74 The feedlot owners, Rockdale Beef, were under a duty to provide the contractor with a safe system of work, the relevant duty of care being to take reasonable care to avoid exposing employees to unnecessary risks of injury.

75 Both counsel have referred me to TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 where the Court of Appeal held that, where an employer hires out its employees into the control of another person without a transfer of employment to that person, the first employer retains the employers non-delegable duty of care even though it is no more than an employment agency/bureau or body hire company. Mason P held that the employment relationship is what creates the relevant non-delegable duty.

76 To the extent that the defendant argues that it did not control the work site, namely the farm on which the fence was to be erected, the remarks of Mason P at [67] are in my view, apposite: "In my view, it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees."

77 The accident occurred in circumstances where the plaintiff was required to attend and comply with the directions of the defendant and its supervisor, Mr Ball. The plaintiff worked for no one else on the site but the defendant. There was an inequality of bargaining power between the parties given that the plaintiff was effectively required to work for the defendant where, and when, and how he was directed - otherwise he would risk losing unemployment benefits. The plaintiff had very little say in the work he carried out. The reality was that the defendant had organised the configuration of the work including the trench which had been dug. The defendant provided an employed supervisor. The plaintiff had little choice but to rely on the care and skill of the defendant in the arrangements and the care and skill of Mr Ball and, to the extent relevant, Mr Webley. Although the plaintiff was directed to erect the fence, no responsible person gave him directions as to how the fence was to be constructed safely. The plaintiff was as reliant on the defendant for his safety as any employee.

78 In those circumstances, there was a clear relationship of proximity between the plaintiff and the defendant as set out by Mason J in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16at 31. It is that relationship which gave rise to the duty of care.

79 I find that the duty of care in this instance was akin to that of an employer to an employee to take reasonable care to avoid exposing a person in the position of the plaintiff to unnecessary risks of injury. That duty was to provide the plaintiff with a safe system of work, a safe place of work and appropriate work-place equipment. The contract between the defendant and the Commonwealth suggests these are the exact responsibilities the defendant contracted to fulfil in relation to the participants in the scheme (exhibit 13, p 29).

80 The plaintiff's position as a participant in the Work for the Dole scheme was known to the defendant. No inquiry was made of the plaintiff's relevant experience or competence to determine his suitability for that work, or his experience (or the lack of it) in that work. No attempt was made prior to the morning of his attendance nor to inform him of the kind of work he would be doing nor the clothing (including boots) which would be required.

81 The circumstances of this case seem to come within the description referred to by the Court of Appeal in Rockdale that "…if a controlling undertaking occupies the site (and) fails to select competent co-workers or to adopt a safe overall system it should be liable just as would be an employer in respect of such failing".

82 The plaintiff was required to work on an uneven surface, which in any event was also on a relatively steep gradient. No attempt had been made to level the site on which the fence was to be constructed to ensure that the plaintiff was able to move safely along the trench while carrying the cyclone-wire mesh without falling off, or sliding down, the loose soil and other debris.

83 Had that been done, or had there been some timber or placing placed on the uneven surface or surrounding trench, the accident may well have been avoided.

84 Given the evidence of Mr Ball, the defendant had limited control over the premises being the farm for the purposes of digging the trench and erecting the fence. The duty of care applying to those sections of the farm included the identification of hazards arising from the physical working environment including the potential for slipping or falling. That identification should have taken place before work on that section took place and should have included identification of actions necessary to ensure those risks were eliminated or controlled.

85 The defendant did not provide a safe system of work. The plaintiff was required to hold the cyclone-mesh in one hand while holding the clip-gun in the other. Specifically, the defendant did not provide the plaintiff with a system of erecting the cyclone wire mesh-fence which would enable the plaintiff to keep a proper lookout on the area of soil he was to traverse while he moved up the fence line to clip the mesh-fence in place. His sight would have been directed at the top section of straining wire. That would have been in the direction of a height of 1.8 metres and not at his feet nor at the soil around his feet. Had he been working from the down side of the fence - as in implicit in the defendant's case through the evidence of Mr Ball - that vision would have been directed at objects at an even greater height.

86 The establishment and supervision of a system whereby one employee held the cyclone mesh while another one affixed the mesh to the wires may well have alleviated or minimised the risk of a person in the position of the plaintiff from being unable to watch out for his footing. I do not accept the description of the defendant that what was involved was low-skilled, repetitive work nor the submission that the fact that the plaintiff had done the task for a section of 30 metres meant that it was his negligence that caused the action to occur when it did.

87 The plaintiff while working on the particular site where the accident occurred, was not the subject of supervision, either at all or by any person who was trained in the erection of a fence of this nature.

88 The defendant did not provide the plaintiff or his co-worker with a rake or other kind of instrument to level the soil or to cover the trench on which it was reasonably foreseeable that the plaintiff would have to either stand, or traverse, to erect the cyclone wire mesh fence.

89 I find that the plaintiff did enquire as to the availability of such boots and that the defendant breached its duty of care by not providing the plaintiff with work boots with soles such that would either prevent or minimise the risk of him slipping on the soil.

90 As a result of all these breaches of the duty owed by the defendant to the plaintiff, the plaintiff slipped and fell on the disturbed, uneven and loose soil surface while he was affixing the cyclone mesh to the wires or while he was moving to fix the next section of the mesh. In my view, causation is established.

Duty to avoid a reasonably foreseeable risk of injury

91 If I am in error and the plaintiff was not in a position similar to that of an employee, or that the defendant was not in a position to organise the activities of the plaintiff, nevertheless, in my view the defendant still owed the plaintiff a duty of care - see Rauk v Transtate Pty Ltd (2001) Aust Torts Report 81-592; appeal (upheld) [2002] NSWCA 222.

92 The defendant had an overriding responsibility to take precautions for the safety of the plaintiff in accordance with the principles of Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 31 and to avoid a reasonably foreseeable risk of injury to a person in the position of the plaintiff. The risk of harm was real, obvious, and potentially serious. It occurred in circumstances where the defendant owed the plaintiff a duty of care - per Gummow J in Vairy v Wyong Shire Council at [66].

93 The duty was at least one to provide a safe surface on which the plaintiff could walk and traverse in circumstances where the defendant through its supervisor, Mr Ball, knew that the soil surface was at least uneven and broken and likely to mean that someone traversing it was likely to slip and fall into the newly dug trench. That risk could have been avoided by reasonable measures including making the soil surface either level or secure or by providing planking or covers for the affected soil area to provide a solid footing. Such steps would have constituted a relatively cheap, remedial measure. I find that, as in Rockdale, the defendant has breached its duty of care. Further, that there was a direct causal relationship between the breach and the plaintiff's injuries.

94 It seems to me to be clear that those risks were foreseeable in that they were inherent in requiring the plaintiff to work on the area of disturbed ground at the slope and gradient which they were, in the area in which, and over which, the plaintiff was required to work. In particular, I find that there was a foreseeable risk that a person in the position of the plaintiff - particularly of his height and weight - would slip while he was working with his hands above his head and fall into the ditch or trench which was at or near his feet. The height of the metal poles and star-pickets were such that the plaintiff was going to be working some of the time where he was focussed on a height of over 1.8 metres.

95 I reject the submission that the plaintiff contributed to the accident in either not looking out or following the correct procedures, or that the plaintiff did not look where he placed his feet. The soil surface was uneven and the slope on a substantial gradient. The plaintiff's attention and eyesight needed to be focussed on where he was to affix the cyclone wire mesh - that is, above his head almost exactly at the 1.8 metre mark.

96 The plaintiff started looking for work in May, 2004 after getting out of the detoxification unit. He attempted to mitigate his damages by obtaining other employment as follows:

· By working as a seasonal worker including in a macadamia nut processing factory. That employment was terminated; · As a veterinary assistant. That employment was terminated; and · As an electrical trades assistant for his father whenever his father is working in the Bundaberg area.

97 He has also tried to get some employment within the greyhound industry but without any lasting success.

98 A folder of medical reports was tendered by the plaintiff including clinical notes from the Tweed Hospital and various reports from Dr AG Hopcroft - an orthopaedic surgeon. There is no serious contest as to the contents of those reports. In short summary, those documents set out that the plaintiff broke his left leg, in particular his left tibia and fibula had snapped. His leg was immobilised in a below knee back-slab cast. The alignment of the bones is difficult to control and the fracture is unstable.

99 Dr Hopcroft reported that the plaintiff has been left with significant ongoing swelling, tenderness, pain, and restriction in movement to his left ankle. He may also have developed varicose vein changes in his legs due to the severity of the condition, the protracted time it has taken to recover from it. In his opinion the plaintiff would struggle with any kind of heavy manual work, or any work involving prolonged standing and walking on an even ground. Those difficulties would prevent his return to activities such as squash, water skiing, and touch football which he otherwise took.

100 Dr Hopcroft considered that the plaintiff is suitable for sedentary type work but that he would be unable to work in a restaurant or in the security industry. It was recommended that, in the event that the plaintiff was employed in sedentary type work, he use a surgical stocking on his leg.

101 Dr Hopcroft's opinion (13 April 2005) is that the plaintiff suffered a whole person impairment of 8% based on a moderate impairment to his ankle changes and to his inversion and eversion loss.

102 Dr Hopcroft recommended that the plaintiff pursue a regular program of hydrotherapy on a year round basis. The cost of that is $400 per year.

103 In a further report of 23 March 2007, Dr Hopcroft re-examined the plaintiff and found that he had quite marked pitting odema of the distal left leg and ankle. There were residual changes of the fracture to his left tibia and fibula and an aggravation of the underlying varicose vein condition. Dr Hopcroft also considered that it was likely that the plaintiff would suffer low grade arthritis developing in his ankle joint in the longer term, together with regular three-monthly examinations by a GP.

104 Dr Hopcroft said that swelling to the plaintiff's distal leg and foot increased towards the end of every day and was directly proportional to the amount of time he spent on his feet. Dr Hopcroft's opinion (13 April 2005) is that the plaintiff suffered a whole person impairment of 8% based on a moderate impairment to his ankle changes and to his inversion and eversion loss.

105 In other reports Dr Hopcroft confirmed that he did not consider that the plaintiff needed any specific assistance with home maintenance chores.

106 The defendant submits that the plaintiff's only entitlement is that he would be put back in the position he would be in but for the accident. Further, that the past earnings of the plaintiff are only a guide to his future earning potential. The plaintiff had been unemployed for the 18 months prior to the accident. By May 2004 he was sufficiently fit to obtain a greyhound trainer's licence and was travelling around to watch and train greyhounds for greyhound racing.

107 The plaintiff is 41 years of age, his life expectancy is a further 44.39 years. The defendant submits that even if liability is established, that an appropriate buffer figure would be one of $25,000. The plaintiff submits that the appropriate award of damages pursuant to section 16 of the Civil Liability Act 2002 is in the range of 30% to 40% ie., $101,500 to $177,000. Findings

108 I find that the plaintiff has been unable to continue in all the positions he obtained because he could not continue to stand for long periods of time on his legs. Unfortunately, there is probably a cyclical relationship between his lack of work, his inability to pursue his former, more vigorous sporting interests and his weight gain and consequently the increased pressure on his leg.

109 I accept that the plaintiff cannot work as a security guard nor as a veterinary assistant nor in any of the fields of employment previously open to him which require him to stand for periods of longer than two hours. In my view, the plaintiff has tried to mitigate his loss to some extent although he is probably reluctant to take any work where he considers that he may be on his feet for substantial periods of time or where he cannot rely on a sympathetic employer to give him frequent breaks.

110 The plaintiff is a relatively young man. He has suffered a significant injury, was conscious at the time of the injury and was unable to be obtain pain relief or medical attention for several hours after the incident. He has had ongoing pain and swelling to his legs which affects many aspects of his life. Taking into account these circumstances, I find that the severity of the non-economic loss is 28% of the most extreme case. In my view the figure awarded should be $62,000.

111 The plaintiff's past work record was full time until 1994. The real deterioration in his work record came when he became involved in the restaurant business and his relationship breakdown. Thereafter he did not work for long or continual periods. That deterioration in his circumstances seems to have led to his drug and alcohol abuse and his ultimate admission to the detoxification unit in May, 2004 from which he was released in July, 2004. He did not earn more than the taxable threshold in the years 1998, 1999 and 2000.

112 The precise date of his release from that detoxification unit is unclear but, given the reality of such schemes and the readiness to work of an individual of the plaintiff's background in that position and when they are released from such treatment environment, I would adopt the potential start date of 25 August, 2004. The period 25 August 2004 to 25 August 2008 is 208 weeks.

113 The plaintiff's readiness for employment is unclear although it is clear that he did comply with the 'Work for the Dole' scheme requirements. He also attempted to work in the various jobs and positions set out above, working for the vet at $15.90 per hour and for his father at $24.95 per hour.

114 The plaintiff claims that averaging those amounts would give a rate of $776 average gross or net $633 per week. The plaintiff submits that that figure should be used as the basis for forward projections given the plaintiff's prior record. The defendant submits that, according to the tax returns filed (when they were) in the 10 years prior to the accident he had earned at most $11,210 gross or about $204 per week. The defendant further submits that the most that should be awarded for this figure should be $25,000.

115 My impression of his father while he was giving his evidence was that he was not going to do his son any favours at that time - certainly until he was sure the plaintiff had given up his substance abuse. In my view, the father's payment was a realistic commercial payment - although for a very limited period as it is likely that the father will only be able to offer him employment while his company works in the Bundaberg area.

116 The plaintiff's future earning capacity but for the injury is also complicated by his age and lack of relevant work experience and qualifications in the area in which the plaintiff has chosen to live as well as his childcare responsibilities and the possibility of the re-occurrence of his substance abuse issues. He does not seem to have pursued any re-training options. The plaintiff's child care commitments for his daughter will prevent movement away for employment for some years.

117 The actual attempts made by the plaintiff to obtain and retain employment in the intervening four years over and above the positions he had are unclear. The circumstances of his retrenchment from the 7/11 store are somewhat clouded as is the evidence as to his preparedness to work in that kind of employment. There is no issue but that the plaintiff's leg and associated problems have interfered with his ability to remain on his feet for long periods. The only long-term work the plaintiff had was within the security of the Navy. His work on his own and in other organisations has been very limited. Realistically, the only organisations he is likely to work for are those which would be prepared to extend him some substantial flexibility to stay off his leg for extended periods. It is also noteworthy that he seems to have been able to play a considerable quantity of golf (at least once weekly albeit with a motorised caddy) and to have been able to train and walk his greyhounds. In my view an appropriate figure, given the past work record and period of unemployment, should be $300 per week.

118 For the period of 25 August, 2004 to 25 August, 2008 the past economic loss should be assessed at $300 pw (net) x 208 weeks = $62,400 less $3750 (earnings during this time) $58,650.

119 Superannuation entitlements on that past economic loss $300 net (average loss) x 208 weeks -less earnings (3750) x .09 = $5278.50.

120 The plaintiff submits that, but for the accident and his entry to the detoxification unit he would have been ready for employment in July, 2004 and remained in work until his 66th birthday.

121 Further, that his work history and experience is limited to essentially physical tasks which his ongoing leg problems would restrict. That means that his earning capacity has been reduced by 20% of his ability to earn in an uninjured state. This means that the weekly loss should be 20% of $300 or $60 per week.

122 In my view, that exaggerates the diminution of the plaintiff's ability to earn and the figure should be one of 20%. I am required to have regard to the vicissitudes which I assess at 15% and propose this discount. Adopting the same figure of the likely average net earnings, the assessment of future economic loss should be $300 (net) x 753.6 (25 year multiplier) x .85 x .20 = $38,433.60

123 Applying the same process to the superannuation loss, this yields a sum of $300 x 753.6 x .85x .2 x .1 (10% of net amount) = $3843.36

124 The plaintiff's evidence was that he lived with his mother for some 6 months. She had been a domestic assistant at a local hospital although she had no formal nursing or care qualifications. Her care for him was:

(i) For the first 3 months full time. He was effectively unable to do anything for himself and he required care on all levels including washing and assistance with toileting, cooking and laundry; (ii) The next three month period was of the order of 3 to 4 hours per day. I find pursuant to section 15 of the Civil Liability Act 2002, that during these periods there was a reasonable need for the services to be provided and that that need has arisen solely because of the injury. Further that the services would not have been provided to the plaintiff but for the injury; (iii) After sixth months to the present was and is of the order of 3 hours per day.

I do not regard the claim for that period to the present as having been established on the evidence.

125 Adopting the statutory rate the calculations should be:

(i) 8 weeks at $792.50 = $6340.00 4 weeks at $807.40 = $3229.60

(ii) 21 hours at $20.19 per hour x 8 weeks = $3391.92 21 hours at $19.84 per hour x 4 weeks = $1666.56

Total: $14, 628.08 Future attendant care services: section 15(2)

126 The plaintiff claims future attendant care services of three hours per week based on 3 hours x $23.02 per hour x 944.5 (44 year multiplier) = $65,227.

127 That claim seems to be based on the plaintiff needing help to do some cleaning tasks, some lifting of groceries, vacuuming and mowing the lawn on the property the plaintiff occupies for his father. Those tasks could be done within the two-hour tolerance period that the plaintiff said he has before he is required to rest his leg.

128 I do not accept that the need for these services has been established and that therefore the threshold has not been met as referred to in the decision of the Court of Appeal in Harrison v Melham [2006] NSWSC 1293. Future medical expenses

129 There was limited evidence that there might be future medical expenses, however the plaintiff claims the following yearly expenses

Hydrotherapy - $400 General practitioner - $140 Injections including anti-inflammatory analgesics Annual injection to his joints - $85 Medication - $200

Average weekly cost of medicals - $16 The amount claimed is equivalent to $16 per week which, when projected for the years referred to above is $16 x 944.5 (44 year multiplier) - $15,112.

Out of pockets(agreed) - $1,604.65 Non-economic loss - $ 62,000.00 Past economic loss - $ 58,650.00 Superannuation loss on past wages - $ 5,278.50 Future wage loss - $38,433.60 Superannuation loss on future wages - $3843.36 Past attendant care services - $14, 628.08 Future medical expenses - $15,112.00

(a) Verdict and judgment for the Plaintiff and damages in the sum of $199, 550.19.

(b) I will reserve liberty to both parties to make submissions as to costs. In the event that no such submissions are received I will order that the defendant to pay the plaintiff's costs.

(c ) Exhibits to be returned 28 days from today to the party tendering the particular exhibit.

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