Hamilton v Nuroof

This is an appeal from the dismissal of the appellant's claim for damages in respect of injuries caused to him whilst employed by the respondent as a labourer. The claim was based upon allegations that the respondent neglected "to provide a safe system of work" or "effective supervision" and failed to give "proper instructions for the carrying out" of the work in which, at the time, the appellant was engaged.

The evidence shows that on the day in question the appellant, with another employee of the respondent, one Wyczecki, was engaged in repairing the roof, or part of the roof, of Shell House in Perth. The building itself is six storeys high and the roof is at three different levels. The sixth storey is smaller in area than those below it so that on top of the fifth floor there is substantial roof space from which the roof of the sixth floor may be reached by an external steel staircase. Projecting above the roof of the sixth floor is what has been referred to as an engine house, or penthouse, and it was whilst the roof of this last-mentioned structure was being repaired, or treated, that the appellant was injured. From the roof of the sixth floor a vertical steel ladder leads to the roof of the engine house.

In the work of repairing the roof of the building hot bitumen was used. This was heated by a fire made on the roof of the fifth floor and from there a few buckets of bitumen were taken to the roof of the sixth floor and from there, ultimately, to the roof of the engine house. On each occasion the bucket employed was from two-thirds to three-quarters full and in this condition, we are told, it weighed approximately forty pounds. From the roof of the fifth floor the bucket was hauled by a rope to the roof of the sixth floor but this method was not used for the remaining part of its journey to the roof of the engine house. The wall of the engine house rising from the roof of the sixth floor was occupied by a number of obstructions. At the left-hand end there were a few steps leading through a doorway to the interior of this structure and these were surrounded by a guard rail some distance from the wall. The return of this rail was affixed to the wall immediately adjacent to the left of the vertical ladder already referred to and immediately to the right of the ladder was a shed which joined the wall and extended along it to a position adjacent to a tank which covered the remaining portion of the wall for a considerable height. From the iron roof of the shed to the flat roof of the engine house is five feet eight inches. We are not told the height of the shed from the roof of the sixth floor but from the photographs in evidence it appears to be a little more than half the height of the engine house itself. In transporting the bitumen to the roof of the engine house the bucket was first of all placed on the roof of this shed. This was accomplished by carrying it a few steps up the vertical ladder and then placing it on the roof. Thereupon the appellant climbed further up the ladder and stepped on to the roof of the shed. From this position he then lifted the bucket by the lower parts of the handle on either side so that Wyczecki, then on the roof of the engine house, could take it and carry it to the required position. This task was accomplished in safety on two occasions but on the third occasion the appellant, according to his evidence, looked up and, seeing that Wyczecki was not in position, called out to him inquiring if he was ready and, upon receiving an affirmative answer, lifted the bucket as he had done twice previously. But Wyczecki did not immediately take it from him whereupon his arms commenced to ache and he "got a splash of bitumen in the eye". The shock, he says, caused him to jump and "splash the bitumen all over" him. It is of importance to observe that at no stage in the proceedings has the appellant claimed or suggested that there was negligence on the part of Wyczecki. By his statement of claim and the particulars given thereunder and at the trial it was made clear that the appellant based his claim to damages upon negligence of the character already mentioned. We mention these matters because it may be thought that the appellant's evidence may give rise to the inference that there had been some carelessness on the part of Wyczecki. But since no such claim has been made and there was no issue between the parties on this aspect it is beyond our province to explore the matter further. And indeed since this issue was not investigated and Wyczecki was not called to give evidence it would be futile to attempt to deal with the matter.

It is clear from a perusal of the reasons of the learned trial judge that he was not satisfied that the accident happened in the manner deposed to by the appellant. In particular his Honour observed that he could not "account for sufficient turbulence being created in the bitumen in the bucket sufficient to release a drop in the way the plaintiff described". The happening, he thought, was "just as consistent with the plaintiff's having clumsily knocked the bucket on the projecting ledge of the flat roof of the penthouse, or perhaps having got tired of holding it up he attempted to stand it on the ledge of the penthouse and upset it in doing so." After a review of the evidence his Honour intimated that he was "unable to find precisely on the evidence how it (the accident) did occur." We share the learned judge's difficulty in determining upon the whole of the evidence just how the accident happened. The plaintiff's evidence in chief on the point has already been referred to. It is brief and throws little light on the matter. During the period of four or five seconds during which he says he was waiting for Wyczecki to take the bucket he "got a splash of bitumen in the eye" and this caused him to "jump and splash the bitumen all over" him. How the initial splash was caused - if there was one - we do not know. The appellant, in cross-examination, said that he did not think that he had started to move his grip on the handle yet in a statement made some six weeks or so after the accident he said that his "arms ached with the strain and in readjusting the weight overhead the hot bitumen splashed on to my face. The resulting shock made me sway still more with more bitumen splashing over me and I dropped the bucket in extreme pain." To the medical practitioner who attended him following his admission to hospital he said that he had "slipped and it came over his hands and forearms and left side of his face". No doubt the accident happened so suddenly and its results were so serious and painful to the appellant that it is not surprising that he was, and still is, unable to say precisely how it happened and it may not be of great importance that there has been some divergence between the accounts given by him from time to time. It was not, we should think, incumbent upon him to prove the precise manner in which the accident occurred if the correct inference from the proved facts is that it resulted from negligence for which the respondents would be liable. But if upon the evidence that inference is not permissible the appellant must, of course, fail.

The learned trial judge appears to have thought that the occurrence of the accident was equally consistent with negligence on the part of the appellant himself yet, nevertheless, he found it necessary to consider whether the respondent had been negligent in any of the respects alleged and, having done so, made a finding adverse to the appellant. Perhaps the more logical approach to the question of the respondent's liability is to determine first of all whether the respondent had been negligent in any of the respects alleged and, if so, thereafter to determine whether the plaintiff's injuries resulted from that negligence. The resolution of the first question in favour of the appellant would provide a background against which the latter's evidence may be viewed and it might be no answer to the claim that his injuries had been caused by the negligence of his employer in failing to provide proper safeguards in the carrying out of work which involved a risk of serious injury to say that the appellant had not proved with particularity the manner in which the accident had occurred. It would be otherwise of course if the evidence should lead to the conclusion that the appellant's injuries had resulted from his own negligence or if that conclusion should be equally open upon the evidence. But in our view the latter questions cannot be resolved merely by an examination of the appellant's brief description, or descriptions, of the manner in which his injuries were caused. If the method employed to raise the bucket to the roof of the engine house involved an unreasonable risk there can be little doubt that the respondent should be held liable, for it is beyond question that the appellant was injured in the course of this operation and that, upon the stated hypothesis, the risks involved in the method employed must, in the circumstances of the case, be taken to have been the cause of his injuries. To say, in the one breath, that the operation then being performed by the respondent required him to undertake unreasonable risks of the nature indicated and then to reject his claim because he is not able to specify exactly how the accident happened would do less than justice to his case. The real question on the facts of this case is whether the appellant was required to submit himself to any unreasonable risk.

This was a question of fact to be determined in the light of all the circumstances. Essentially its resolution involved an appreciation of the risk involved and investigation whether that risk might have been obviated or diminished by the employment of some other means of raising the bucket to the roof of the engine house. The degree of risk which was involved depended upon a number of factors but it is not ascertainable merely by saying that hot bitumen is a potentially dangerous substance. That is, of course, beyond doubt and this is a material matter for consideration. But unless one is to subscribe to the bare proposition that the handling of potentially dangerous substances by an employee is an operation which exposes him to an unnecessary or unreasonable risk - and this is not suggested - it is necessary to look further. The question is whether, bearing in mind the vice of the commodity, the method of handling does, in all the circumstances, expose the employee to such a risk.

For the appellant it was said first of all that the method employed should not have been used. The operation, conducted as it was, exposed the appellant, it was contended, to an unreasonable and unnecessary risk. We do not understand this contention to depend upon the view that the lifting of the bucket in the manner described was so hazardous that the risk involved was unreasonable but rather upon the suggestion that some other and safer method might have been employed or that safeguards of some kind might have been provided. The suggestion was made that the rope should, again, have been employed to haul the bucket to the roof of the engine house but this suggestion was rejected by the learned trial judge as not feasible in the circumstances. There were, it seemed to him, too many obstructions in the way. Moreover it is by no means beyond question that the adoption of this method would not have resulted in the creation of new dangers particularly to the person hauling the rope and seeking to keep the bucket far enough out from the wall to clear the overhang of the roof. The only other suggestion that was made was that the bucket should have been provided with a lid. But this would have carried the matter no further for the provision of a lid would, as the learned trial judge indicated, have introduced new risks and there is nothing to indicate that if a lid had been provided there would have been any greater margin of safety.

It is proper to observe that these suggestions were not based upon or supported by any evidence in the case; they came from the bar table and, for acceptance, depended necessarily upon what view the learned trial judge, otherwise uninstructed, should form concerning both the suggestions made and the method actually employed. And if the learned trial judge was of the opinion that the latter method did not expose the appellant to any unreasonable risk there was not the slightest reason why he should have thought that some other suggested method should have been employed. As already appears his Honour did not think that the method employed did expose the appellant to any unnecessary risk. Whilst agreeing to the full with the submission made on behalf of the appellant that hot bitumen is a potentially dangerous substance we can see nothing in the circumstances of this case which should induce the court to differ from the finding of the learned trial judge. The plain fact of the matter is that the appellant was engaged in a task, the safe performance of which, whilst it called for the exercise of care, did not call for the exercise of any degree of skill. The appellant was a man of thirty years of age and six feet in height. The bucket which he was handling had been constructed from a four gallon drum and it contained three gallons, or slightly less, of bitumen. It was of course of considerable weight - approximately forty pounds - and the process of raising it from the roof of the shed by grasping the lower parts of the handle on either side was not calculated to make it feel any lighter. But no complaint is made that it was too heavy to handle safely in this manner. Indeed it was the third occasion on which the bucket had been handled in this fashion and, according to the evidence, it was the appellant who had ladled the bitumen into it on this occasion. If three gallons were too heavy the remedy was a simple one - something less than that quantity could, and, probably, would have been ladled into the bucket. But the evidence does not suggest that the raising of the bucket in the manner indicated so that Wyczecki might take it was not well within the capacity of an ordinary workman; nor does it appear that the performance of the task required the appellant to raise his hands to any unduly high level. Of course if the task had called for constant repetition unremitting care over long periods would have been necessary and in those circumstances an employer might reasonably be required to devise a method which would guard against casual, though, no doubt, inevitable inadvertence or carelessness. But this was not the case. Only a few buckets - estimated at about a half a dozen - were required to complete the repairs to the engine house roof and there was no reason to think that the operation might not have been completed with the requisite amount of care. Moreover it was not suggested that experience showed that the method which was employed was unsafe; on the contrary it appears to have been used safely in like circumstances for a number of years. In these circumstances it cannot be said that the appellant's injuries resulted from any breach of duty as alleged; still less can it be said that the finding of the learned trial judge on this point in favour of the respondent should be disturbed.

In this case I have had the advantage of reading the joint judgment of the Chief Justice and of Kitto J. I agree entirely with it, and there are only one or two observations that I desire to make.

The learned trial judge, who considered the case with great care and witnessed a demonstration, said that he was unable to find precisely on the evidence how the accident did occur. But no reason is suggested for doubting the credibility of the plaintiff. We have a photograph showing the marks made on the wall by the bitumen. And we have the medical evidence, which shows that the burns suffered by the plaintiff involved his left eye and ear, the left side of his face, both hands and both forearms. While it may be difficult to reconstruct the accident in accurate detail, one may, I think, feel quite confident that it happened because the plaintiff was required to lift a bucket of molten bitumen, weighing about forty pounds, by its handle to a point where the top of it was level with, or above, his eyes. I would think it not improbable myself that he jarred the bucket against the projecting edge of the roof of the generator room. He may have lifted the bucket above the level of his eyes, and then simply lost his grip with one hand. But, however this may be, the substance to be handled seems to me to have been obviously dangerous in the sense that, if it came in contact with any part of the human body, it would cause serious and painful injury. And it seems to me equally obvious that the method of handling it - the method which the plaintiff was instructed by Wyczecki to employ - was dangerous in the sense that it involved a real risk of some such thing happening as did in fact happen. It follows that, if there was any other reasonably practicable "system of working", which could be expected to occur to a reasonable person as involving less danger to the worker, that system ought to have been adopted.

It is, of course, easy to be wise after the event, and not so easy to be wise before it. But a very strict view has for many years been taken in England of the common law duty of an employer to provide a reasonably safe system of working. I think, indeed, myself that the courts have gone too far, and that there are reported decisions which it is impossible really to justify on the footing that the ultimate basis of liability in such cases is negligence. In the present case, however, there seems to me to have been an alternative method of handling the buckets, which would have involved very considerably less risk, and which might very readily have suggested itself to those responsible. I cannot see that any serious difficulty presented itself in the way of using a rope for the purpose of raising the buckets to the roof of the generator room. Mr. Griffith, a foreman employed by the defendant, said: "We use a rope wherever possible. That is because we are appreciative of the risk in handling this material."

He offered reasons for not using a rope in the particular case, and other reasons were suggested by counsel for the defendant. But none of these appears to me to carry any weight. One of them almost seems to imply that it was more important that a wall should not be splashed than that a workman should not be splashed. Mr. Griffith said that, if a rope were used, there would be danger to a man standing under a bucket. But why should a man go out of his way to stand under a bucket that was being raised by a rope? It was suggested that a bucket might sway in a wind and cause some person to be splashed who was some distance away. But it seems impossible that such a thing should happen while a bucket, weighing forty pounds is being hauled up a distance of six feet. Wolff J. observed that, whatever method were adopted, a stage would come when the bucket would have to be manhandled. That is true, but the whole point about the use of a rope is that it would have obviated the necessity of a man's raising the bucket with his hands to the level of his face.

The plaintiff said that, before he raised the bucket, he called out to Wyczecki, who was above: "Are you ready?", and that Wyczecki replied: "Yes". Wyczecki, however, did not immediately take the bucket. If this evidence were accepted, the case might be put on the basis of negligence by Wyczecki in the actual doing of the work. For such negligence, since the doctrine of common employment has been abolished by statute in Western Australia, the defendant would be vicariously liable. No such cause of action, however, was pleaded. The plaintiff has relied solely on a breach of the duty of an employer to provide a safe system of working. That duty, as has often been said, is a duty that rests on an employer personally, and, if a safe system is not provided, his liability - even though the actual fault be that of a servant or agent, as, of course, it must be, if the employer is a company - is for a breach of his own duty and not for a breach of duty of a servant or agent. But there is no liability unless there is negligence either on the part of the employer himself or on the part of a servant or agent. The employer's duty may perhaps be stated as a duty to ensure that all reasonable steps are taken to provide a safe system of working. I am of opinion that a breach of this duty was proved in the present case, and that the appeal should be allowed and judgment given for the plaintiff for damages to be assessed.