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[2013] QCA 270
General information, not legal advice.
Court of Appeal (Qld)
2013-09-20
Muir and Morrison JJA and Margaret Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Original judgment source is linked above.
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - EMPLOYER AND EMPLOYEE - where the appellant was employed by the respondent as a trainee electrician - where the appellant was required to adopt a system of work whereby a piece of U-shaped framing cut from scrap metal was attached to fixed framing to protect electrical cables - where the appellant, as he alighted from a ladder, cut himself on the sharp edge of an offcut of U-shaped framing which he had positioned atop a high tool box near the ladder - where the appellant cut the U-shaped framing and knew it to be sharp - where the primary judge found that the respondent did not breach its duty to the appellant as the appellant knew that the offcut was sharp and created the hazard by placing the offcut, with its sharp edge exposed, on a tool box close to the ladder he was using - where the appellant submits that the respondent failed to prescribe and implement a safe system of work and breached its duty of care by providing no instructions as to where to perform the cutting task; the handling of sharp steel; where and how to place sharp offcut pieces; and the safe method of performing his task in relation to the cutting and fixing of the steel - whether the primary judge erred in not finding that the respondent was in breach of its duty to provide the appellant with a safe system of work and that such breach was causative of the loss suffered by the appellant
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - LOSS OF EARNINGS AND EARNING CAPACITY - RE-EMPLOYMENT OF WORKER - where the primary judge assessed damages for future loss of earning capacity at $150,000 and general damages at $50,000 - where the appellant submits that the former should have been $400,000 and the latter $75,000 - where the appellant submits that the primary judge erred in failing to make allowance for the appellant's loss of opportunity to return to mining work - where the respondent relies on evidence suggesting opportunities for work within mines generally suited to the physical capabilities of the appellant - where the appellant contends that the primary judge erred in failing to make sufficient allowance for the diminution in the appellant's earning capacity as an electrician doing general electrician's work - where the respondent relies on evidence that the appellant had been in constant employment since his injury - where the appellant submits that the primary judge erred in failing to calculate future loss of superannuation by reference to the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth) - whether the assessment of damages in relation to future economic loss and general damages were manifestly inadequate - whether the primary judge erred in calculating future loss of superannuation
Uniform Civil Procedure Rules 1999 (Qld), r 166
Czatyrko v Edith Cowan University (2005) 79 ALJR 839; [2005] HCA 14, cited
Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258; [1992] QCA 41, considered
Ferraloro v Preston Timber Pty Ltd (1982) 56 ALJR 872, cited
Heywood v Commercial Electrical Pty Ltd [2013] QSC 52, related
Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256, considered
Hunt v Australian Associated Motor Insurers Ltd [2012] QCA 183, cited
McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, considered
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5, considered
Miller v Jennings (1954) 92 CLR 190; [1954] HCA 65, considered
Perfect v MacDonald & Anor [2012] QSC 11, cited
Rasic v Cruz [2000] NSWCA 66, cited
Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19, cited
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, considered
G W Diehm QC, with G C O'Driscoll, for the respondent
[1] MUIR JA: Introduction The central issue for determination in this appeal is whether an employer breached its common law duty to provide a safe system of work to a trainee electrician who, as he alighted from a ladder, cut himself on the sharp edge of a U-shaped piece of steel which he knew to be sharp and had positioned atop a high tool box near the ladder.
[2] The appellant was 24 on 17 October 2008 when the subject injury occurred. He had just completed a three month period of probation and was about to sign papers to formalise his apprenticeship. He left school after year 12 and worked in mines in New South Wales, at times as a driller's offsider, for about 16 months. He then took an extended working holiday abroad. On his return he worked for his parents on their farm and then at a hotel before commencing his employment with the respondent on 30 June 2008.
[3] On 17 October 2008, the appellant was working in the fit out of a high rise apartment building. U-shaped framing had been attached to concrete ceilings to facilitate the positioning and support of internal walls. On lower floors of the building electrical cables had been damaged by being forced by internal wall sheeting against sharp edges of the framing. This problem was overcome by the expedient of cutting a piece of the U-shaped steel framing to an appropriate length, turning it upside down and fastening it to the fixed framing, thereby creating a soft edge along which the cables could run. The remaining offcuts had sharp edges. This technique, which was suggested by Mr Menz, an electrical subcontractor on site, and adopted by the respondent, was shown to the appellant by Mr Ridings, a director of the respondent, three weeks or so prior to the date of the accident. It does not appear, however, that the appellant had himself employed the technique before the subject incident.
[4] The primary judge described the incident in which the appellant was injured as follows:[1]
"[8] There is no dispute as to the mechanism of the injury. On the day of the incident, the [appellant] was working on the fifth floor of the premises covering sharp edges of the U-shaped framing as described above. He located a scrap piece of U-shaped framing on the floor and placed it on his gang box (a tool box), the top of which was approximately 110 cms above ground level. He cut a piece off the framing to form the required sleeve, leaving the remainder on the gang box for later use. He ascended the ladder and positioned the sleeve into place. The [appellant] descended the ladder and, when he stepped off the last rung, his elbow came into contact with the scrap piece of framing.
[9] The [appellant] says that when he stepped off the ladder he swung around to his left. Mr Menz was working in the same area as the [appellant] and witnessed the [appellant] coming down the ladder. He says he saw the [appellant] step back when he came off the ladder and puncture his elbow.
[10] The [appellant] described the incident in this way:
'I wasn't really thinking about the U shaped steel. It was on top of the gang box, I guess, but I was more just thinking about the job at hand ... I made my way up the ladder, put the bit that I'd cut off over, made sure that it was snug, and then, ..., as I was walking back down the ladder, I was already thinking about the next job I had to do, because we were always under the pump, and as I got to the last rung of the ladder, I stepped off and swung around to my left and that's when the bit of steel went into my elbow.'"
[5] Mr Menz said that he was about two metres away from the place of the accident. He also saw the U-shaped steel turned upwards on the gang box prior to the accident but "wasn't paying a lot of attention to it". Under cross-examination, Mr Menz said that "technically" the appellant was under his supervision at the time of the accident. Asked why he did not, in effect, caution the appellant about the hazard posed by the sharp steel on the gang box, he responded, "The whole site's dangerous. That wasn't dangerous". He remarked that he did not know that the appellant was going to step backwards and said that only a few minutes had elapsed between the cutting of the steel and the appellant's descent on the ladder.
The system of work and the appellant's training
[6] The relevant safety training given by the respondent to the appellant, as far as one can detect from the evidence, was the provision to the appellant of the respondent's Environmental Health and Safety Policy. The most relevant part of the policy, it may be inferred from the references to it at first instance and on appeal, related to cable and ladder tray installation which, in the work method description, stated, "Secure ladders or trays to support". It listed the possible hazards of "cuts and abrasion (sic) from sharp edges". It was, however, acknowledged that this was not the "exact task" that was being performed.
[7] Mr Ridings gave evidence that he had interviewed the appellant before selecting him for employment. He assumed that, because the appellant had worked in mines and had helped his father out on his farm, he was familiar with hand tools and "familiar with working method statements and risk assessments and things like that". He asked the appellant in his interview if he had seen "a Matrix" (a risk evaluation chart) and the appellant responded affirmatively. There was no evidence that the appellant was asked by Mr Ridings or anyone else on behalf of the respondent to complete a risk assessment.
[8] Asked what steps were taken to induct and train a new apprentice or employee in relation to the workplace health and safety systems of the respondent, Mr Ridings said:
"We give them a starter's pack, which has the company policy. We induct them into our safety system and then on every commercial job, they're inducted into a site specific."
[9] Mr Ridings said that, in the presence of the safety officer, he personally asked the appellant, to whom he gave a folder (presumably containing the starter's pack), to read the documents and to bring up anything that he did not understand. He said that he was constantly "asking" or "critiquing" the appellant on his safety by telling him to wear his hard hat, safety gloves, ear muffs and "mainly those sort of things".
[10] The starter's pack made no specific reference to the work involved in cutting and handling U-shaped framing in connection with its fastening to fixed U-shaped framing. There was no suggestion that the induction referred to by Mr Ridings regarding the respondent's "safety system" imparted any information which was relevant for present purposes.
The primary judge's reasons in relation to liability
[11] The primary judge's reasoning was to the following effect. The appellant understood and appreciated the risk attaching to the handling of sharp objects in the workplace. He knew that the piece of channelling that injured him was sharp. Consequently, the respondent was not obliged to tell the appellant that it was sharp. The appellant created the hazard posed by the offcut by placing it, with its sharp edge exposed, on a tool box close to the ladder he was using. Before he ascended the ladder he was aware that the offcut would be close to the point at which he would eventually step off the ladder.
"a duty of care is not a general duty to protect careless people from the consequences of their own carelessness. The test of reasonable care is not whether the safety of the shop could be improved."
[13] The primary judge quoted the following passage from the reasons of the High Court in Thompson v Woolworths (Qld) Pty Ltd:[4]
"When a person is required to take reasonable care to avoid a risk of harm to another, the weight to be given to an expectation that the other will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend upon the circumstances of the case ...
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response ...
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration."
[14] The primary judge concluded his discussion of liability as follows:[5]
"The factors that I have referred to above concerning the actions of the [appellant] and the knowledge he possessed at the time demonstrate to me that it has not been established that the [respondent] breached its duty to the [appellant]. It was not a difficult task, the [appellant] knew how to do the task, and the injury came about through the actions of the [appellant]."
[15] The appellant alleged in his amended statement of claim that the respondent had a duty:
"3.1 To take all reasonable precautions for the safety of the [appellant] whilst he was engaged upon his employment;
3.2 Not to expose the [appellant] to any risk of damage or injury of which it knew or ought to have known; ...
3.5 To provide for the [appellant], a proper and safe system of working;
3.6 To provide for the [appellant], training in the safe and proper method of performing his employment duties;
3.7 To provide for the [appellant], supervision in the safe and proper method of performing his employment duties."
[16] The respondent in its amended defence admitted that the appellant was owed an unspecified duty of care as required by law. It did not otherwise deny or admit the allegations in paragraph 3 of the amended statement of claim. By operation of r 166 of the Uniform Civil Procedure Rules 1999 (Qld), the respondent is taken to have admitted the above duties of care. At first instance and on appeal the issue between the parties was whether there had been a breach of one or more of the alleged duties and whether, if so, the breach had been causative of loss.
[17] Counsel for the appellant argued that the respondent failed to prescribe and implement a safe system of work and thus breached its duty of care by providing no instructions to the appellant as to:
[18] The appellant put in evidence a report of Mr Byard, a mechanical and electrical engineer who specialised in industrial accident prevention and investigation and in auditing and advising on occupational health and safety management systems. In a report dated 30 November 2011, Mr Byard identified the following ways in which the risks inherent in the subject work of the appellant could have been identified and negated or reduced:
1. Placing an offcut with its sharp edges facing down and away from the edge of the tool box or on the floor, either next to or leaning against the tool box.
2. Separating the appellant's working area from his preparation area.
3. Identifying the factors contributing to the risk of accident by subjecting the system of work to an audit or risk assessment as part of an appropriate occupational health and safety management system.
4. Instructing the appellant regarding health and safety management in the workplace.
5. Undertaking a formal risk assessment for the use of the offcuts for sharp edge protection or undertaking an informal task assessment and spending several minutes assessing the task and the work area prior to commencement.
6. Rounding the sharp corners of the offcuts with tin snips.
[19] Mr Byard was not cross-examined on these opinions.
[20] The appellant was given no training or warnings concerning the handling of dangerous objects and their placement. There is no reason to dispute Mr Menz's observation about the whole site being dangerous and it is probable that his observation about the offcut on the tool box not being dangerous was made defensively and did not represent his considered opinion.
[21] The leaving of a sharp piece of metal on a tool box to which the appellant and other workmen had recourse for tools was hardly a safe practice. That was recognised by Mr Ridings who said that, if he had seen the appellant leave the offcut on the tool box, he "would have asked him not to leave anything on the tool box, because people want to go in there and get stuff out of it". Mr Ridings also agreed in cross-examination with the proposition that it was "dangerous to leave a Stanley knife on top of a gang box because it's a sharp item".
[22] It is not an answer to an allegation that an employer has breached its duty of care to establish that the risk of injury was obvious and known to the employee. Referring to a situation in which employees had adopted a work practice which routinely exposed them to a significant risk of injury, Mason, Wilson, Brennan and Dawson JJ said, in McLean v Tedman:[6]
"In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: Wheare v. Clarke; Henwood v. Municipal Tramways Trust (S.A.). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk." (citations omitted)
[23] Their Honours quoted the following passage from the judgment of the High Court in Ferraloro v Preston Timber Pty Ltd:[7]
"The employer's duty, to whomsoever it falls to discharge it, is to take reasonable care to avoid exposing his employee to an unnecessary risk of injury and the employer is bound to have regard to a risk that injury may occur because of some inattention or misjudgment by the employee in performing his allotted task."
"If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his duties then this is a factor which the employer must take into account ...
The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer: see Fleming, Law of Torts, 6th ed. (1983), pp. 480-481. And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."
[25] In considering whether there was a breach by the respondent of its duty of care, it is necessary to identify what a reasonable employer in the position of the respondent would have done to obviate a foreseeable risk of injury to the appellant.[9] This inquiry does not focus on the injury, which in fact occurred, but on the range of activities in which employees, such as the appellant, were engaged and potentially at risk.[10] Relevant to this inquiry are:[11]
"...the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant."
[26] An obvious enough hazard to which an apprentice electrician doing fit out work of the kind under consideration is exposed, is the risk of injury from sharp objects or surfaces. Such an electrician works under pressure, at least from time to time, without the luxury of periods of contemplation and reflection about possible hazards before moving from one task to the next. Such risks may be addressed in part by the giving of reminders and warnings of their existence and potential gravity. Such warnings and reminders, however, may not guard sufficiently against injury through inattention, inadvertence or carelessness. That is why workplace procedures and practices are implemented. Workmen, such as electricians, are routinely provided with a code of conduct which, although it may be basic in nature, if followed, will reduce the risk of injury.
[27] Counsel for the respondent argued that if instructions were required to be given about how to handle an obviously sharp object such as an offcut, it would follow that similar instructions would be required in respect of other sharp objects such as Stanley knives and tin snips. This, it was contended, would lead to a plethora of instructions, the efficacy of which would be diminished as the instructions increased. The argument is misguided.
[28] Mr Byard identified basic measures which the respondent could have taken to minimise workplace risk. Those measures included requiring supervisors to instruct apprentices in safety management and adopting procedures in which dangerous objects, particularly if brought into existence by the apprentice, were handled and positioned in a safe, orderly and consistent manner. Such instructions would have been beneficial, not only in relation to safety, but in terms of efficiency.
[29] Instructions of the kind being discussed would have alerted the appellant to take basic precautions of the nature of those recommended by Mr Byard: placing the offcut with its sharp edges facing down; placing the offcut away from the edge of the gang box; or, preferably, placing the offcut in a position where it was unlikely to come into contact with anybody.
[30] The taking of measures of the nature of those just discussed would have been a reasonable, cheap, conventional and convenient response to obvious risks. No application of hindsight is required in order to arrive at that conclusion.
[31] It is relevant that the appellant, to the knowledge of the respondent, was inexperienced. Such persons, as Mr Ridings frankly acknowledged, were "prone to making silly mistakes" and "focusing on the task at hand without thinking too far ahead". The risk that the appellant would leave an offcut in a place where it could cause injury to himself or another was foreseeable. Nothing was done to guard against the risk, which could have been reduced significantly by the simple expedient of providing instructions along the lines of those just discussed. As well as the existence of a failure to warn, there was in fact the creation of a risk by the failure of the respondent to adopt a safe system of work.[12]
[32] The argument of counsel for the respondent also concentrated on the appellant's knowledge of the hazard which he had created. As the above discussion shows, that is an insufficient answer to the question of whether there was a breach of the respondent's duty of care. Counsel for the respondent argued that, even if, instructions of the type just discussed had been given, it is probable that they would not have averted the appellant's injury. There was, however, evidence from the appellant that he would do his "level best to [adhere] to the workplace health and safety or the safe work method statement of [his] new employer". He accepted in cross-examination that he would do his "level best to tick every box" and there is no suggestion that he had any propensity not to follow his supervisor's instructions.
[33] For the above reasons, the primary judge erred in not finding that the respondent was in breach of its duty to provide the appellant with a safe system of work and that such breach was causative of the loss suffered by the appellant.
[34] The primary judge assessed the general damages he would have awarded had the appellant succeeded at first instance at $50,000 and future loss of earning capacity at $150,000. The appellant claims that the former should have been $75,000 and the latter $400,000 with a consequential award of $45,320 in respect of loss of future superannuation.
The appellant's arguments in respect of future economic loss
[35] Counsel for the appellant submitted that the primary judge erred in failing to make allowance for the appellant's loss of opportunity to return to mining work and that he also erred in failing to make sufficient allowance for the diminution in the appellant's earning capacity as an electrician doing general electrician's work. In relation to the both complaints, the appellant relied on the following findings:
[36] As a result of the above matters, the primary judge held:[18]
"The plaintiff will be disadvantaged in the employment market because his injury will:
(a) make him slower at some tasks than other workers,
(b) have to be disclosed to prospective employers, and
(c) make him vulnerable to further injury and, thus, reduce his employability."
[37] There was evidence that tasks commonly undertaken by electricians involved:
[38] The appellant gave evidence that his physical limitations as a result of the accident excluded him from working with big solar panels, air conditioning units and the handling of "bigger power cables", which would need to be handled to enable him to do "high-voltage work".
[39] In relation to the appellant's loss of opportunity to return to mining work, the appellant challenged the primary judge's finding that:[19]
"... the evidence about the work available for electricians in the mining industry was limited. Mr Bird could describe what he did as an electrician on a mine site but no one was called who could give a more extensive overview of the type of work which might be undertaken, where it might be and the possible duration of such work. Ms Dent gave evidence that she had found over 15 advertisements for mining electricians between 1 March and 27 March 2011. But that does not allow a consideration of the type of work available and the [appellant's] capacity or lack of capacity for such work. Further, the [appellant] declined the [respondent's] invitation to take part in an independent examination to test his capacity to work in the mining industry."
[40] A friend of the appellant's, Mr Bird, who was employed in the mining industry as an electrician, gave evidence of the tasks he was required to perform in the previous two and half years for three separate employers in three separate mines. The primary judge accepted that the work described by Mr Bird of "heavy lifting and carrying of tools of engine parts" would create difficulties for the appellant.[20] Mr Bird gave unchallenged evidence that during his two and a half years working as an electrician at the mines he was aware of job opportunities arising "[a]ll the time".
[41] In respect of the type of work likely to be undertaken by an electrician working in a mine, Mr Bird gave evidence that his employment positions required him to work 12 hour shifts and that he would not have been employed had he not been ready to work such shifts. As indicated in paragraph [35] above, the primary judge accepted Dr Robinson's evidence that, because of his injured hand, the appellant would become fatigued "very, very rapidly compared to an uninjured person".[21] Ms Dent's unchallenged evidence was that the appellant "would now find longer hours difficult".
[42] The appellant's unchallenged evidence was that he would have been prepared to relocate if necessary to obtain work in the mines.
[43] Mr Bird's evidence, again unchallenged, was that in order to obtain his employment positions in the mining industry, he underwent tests in relation to "grip strength" and which also involved the shovelling of gravel into a wheelbarrow, the dumping of it and the repeating of the exercise.
[44] An electrician employed in mines, on the evidence, had an earning capacity of $140,000 per annum plus superannuation, which equates to $1,870 net per week, compared with the average weekly gross earnings for an electrician of Mr Bird's experience of $1,407 gross per week ($1,085 net per week) plus superannuation.
The respondent's arguments in respect of future economic loss
[45] The appellant's evidence of the conditions that he would encounter as an electrician working in the mines was derived from what he had been told by Mr Bird. Mr Bird's experience in the mining industry was limited and did not provide a general account of the work which may be available for electricians within the mining industry. In particular, Mr Bird had a preference for work which combined electrician's work with other roles such as mechanical repairs and other more manual tasks. The appellant gave evidence to the effect that he had decided to become an electrician to avoid the heavier manual work in which he had earlier been engaged.
[46] Another electrician, Mr Kamphuis, gave evidence that he had worked in mines in Victoria and Queensland many years ago and that recently he had undertaken electrical contracting work for the respondent in a mine. According to Mr Kamphuis, the work required of electricians in mines was, if anything, easier than general commercial work. There were two reasons for this. Firstly, the work generally involved routine maintenance because if there was a major problem, specialist contractors would be engaged "to come in and fix it". The second reason given was that mines were exceptionally safety conscious and required electricians to spend a great deal of time on paperwork connected with safety. They also imposed restrictions on weights which could be lifted so that an electrician doing general commercial electrician's work would be more exposed to the lifting of heavy weights than an electrician in a mine. Mr Kamphuis said that he had suffered a recent heart attack but, nevertheless, he had subsequently passed the medical test for the mine in which he had worked.
[47] It was submitted that the primary judge's finding set out in paragraph [39] above was justified.
[48] The finding of the primary judge in paragraph [39] above was, if anything, unduly favourable to the appellant. Mr Kamphuis' evidence suggested that there may well have been opportunities within mines generally suited to the physical capabilities of the appellant. Mr Bird's experience was limited to three mines. He was employed for 12 months from March 2010 in a gold mine. He was then employed as a maintenance technician carrying out electrician's as well as a fitter's duties. At an unspecified time in 2012, Mr Bird obtained employment by Xstrata in an underground coal mine. He asserted that his "normal duties would be no different to anyone else that worked underground, whether their title was an operator or a fitter". In cross-examination, however, he accepted that the electrical maintenance work performed by electrical contractors was "a lot lighter" than the work in which he had been engaged and that an electrical contractor's position was one which was "fairly desirable". He also accepted that there were "many other opportunities for electricians on mine sites which don't involve that heavy, laborious type activity [i.e. of the nature of that which he undertook for Xstrata]" for which he obviously had a preference.
[49] As for the appellant's general capacity to work as an electrician, counsel for the respondent referred to the evidence that:
[50] The point was made that the medical evidence on which the appellant relied was somewhat dated.
[51] The appellant's argument in relation to the loss flowing from his alleged inability to obtain employment in mines assumed that such work would continue to be more readily available than general electrical work and that it would continue to be more highly paid. Neither assumption had any evidentiary foundation, particularly the former. As for the latter, it is probably safe to assume that due to their remote location and the inherent danger and discomfort associated with working in the mines, remuneration will tend to be greater than that which can be achieved for more normal electrical work in and about large cities. It is probably not safe, however, to assume that the differences in the rates of pay will maintain their existing relativities.
[52] The proper basis for quantification of damages for loss of earning capacity was explained by McHugh J in Medlin v State Government Insurance Commission, as follows:[22]
"In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because 'an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss'. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred." (citations omitted)
[53] It was submitted that the primary judge had failed to apply the above principles and that his assessment was manifestly inadequate. Counsel for the appellant attempted to demonstrate such inadequacy and the appropriate level of quantum by reference to single judge decisions in which courts had made awards of damages in broadly similar circumstances. This process was plainly flawed. In any case, economic loss must be determined by reference to facts of that case. It is of no assistance, and it is highly likely to be productive of error, to attempt to set the level of an award for future economic loss by reference to awards in other cases by a process of adjusting, by means which are not apparent, to allow for differences in the extent of injury, ages and levels of income in the subject field of employment.
[54] Counsel for the appellant did not identify an error in the primary judge's reasoning nor was it shown that the primary judge had made an error of law, taken irrelevant matters into account or failed to have regard to relevant considerations.
[55] The primary judge was criticised for observing that "the plaintiff declined the defendant's invitation to take part in an independent examination to test his capacity to work in the mining industry".[23] The comment was made in the context of the discussion of the limited evidence of the nature of the work available for electricians in the mining industry. The primary judge was not suggesting that the appellant's failure to participate in an independent examination affected his evaluation of the evidence before him.
[56] For the above reasons, with one exception, no basis has been shown for disturbing the primary judge's findings in respect of future economic loss. The exception is that the primary judge erred in calculating future loss of superannuation by failing to take into account that under the Superannuation Guarantee (Administration) Amendment Act 2012 (Cth), employers are required to pay superannuation benefits as follows:
[57] Counsel for the appellant submitted that by applying the five per cent multiplier tables and the deferred aspect of the above rates, loss of future superannuation should be awarded at the rate of 11.33 per cent of the sum awarded for loss of earning capacity so that an award of $400,000 for such loss would result in an award of $45,320 for loss of future superannuation. Consequently, an award of $150,000 for future loss of earning capacity would result in an award of $16,995 for future loss of superannuation.
[58] The respondent's only submission in this regard was to submit, by reference to Elford v FAI General Insurance Company Limited,[24] that:
"... if there is nothing more than a wrong estimate of one component [of an award of damages] which has no substantial effect on the total, the award stands. The pointing out of a relatively small error in one estimated component of a judgment which is in substance a sum of estimates does not necessarily make the judgment as a whole wrong."
[59] There can, however, be no objection in principle to rectifying an error which appears to be one of calculation rather than of principle. So much appears from the decision in Elford and from Hunt v Australian Associated Motor Insurers Ltd.[25]
[60] The respondent relied on the principle stated in Miller v Jennings[26] that:
"In effect the court, before it interferes with an award of damages, should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered."
[61] It is not necessary, however, for a party to succeed on an appeal from an award of damages for personal injuries to show that the overall award is erroneous.[27]
[62] The appellant was an active sportsman before the accident. At secondary school, he had been in the first XV rugby and the first XI cricket and soccer and after leaving school he enjoyed snowboarding and was physically active. After the accident, he tried to take up cricket again, but found he could not bat properly. He can still play golf, but his hand starts to ache after about nine holes and he loses his grip. His grip is weak and he had problems gripping and lifting large objects.
[63] The appellant has suffered sufficient pain in his left hand to require him to take paracetamol regularly and he takes magnesium tablets daily to stop the cramps which develop in that hand. Continuous vibrations with work equipment, such as drills, cause the appellant pins and needles and pain if he persists and he has had numbness in the left hand since the accident.
[64] The primary judge dealt with general damages as follows:[28]
"I was referred by Mr Munt to Hunter v New Fishing Australia Pty Ltd [2009] QSC 229 in support of an award of general damages of $85,000. That case is of no assistance as general damages had been agreed. I prefer to rely upon Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256 as providing a better indication of the appropriate area for general damages. For General Damages I award $50,000."
[65] The primary judge was right to reject the authority of Hunter for the reason he gave. Counsel for the respondent referred his Honour to Perfect v MacDonald & Anor.[29] It was submitted that although the Civil Liability Act 2003 (Qld) and the Civil Liability Regulation 2003 (Qld) applied to Perfect, the award was "instructive".
[66] The primary judge was thus provided with limited guidance. The plaintiff's injuries in Hughes appeared initially to be approximately as disabling as the appellant's, but his condition deteriorated and his pain levels continued to increase from the date of the accident in August 2006 to the time of the trial in 2011. The medical evidence was that, by the time of trial, he was unsuited to his work as a fitter in an underground mine. He was: in pain "most of the time";[30] unable to sleep on his left side; unable to swim recreationally (which he had previously enjoyed); and unable to play more than nine holes of golf "and then only with pain".[31] He experienced difficulties in dressing and undressing and could not enjoy activities with his young grandchildren. His condition was expected to gradually worsen over the years.
[67] Although Mr Hughes was much older than the appellant when injured (42 years) it cannot be said that the decision, in which the general damages award was $55,000, is of no reasonable value as a precedent.
[68] Whilst the award in this case is lower (but not unreasonably so) than some of the awards referred to on appeal, I am not persuaded that the primary judge erred. His Honour was entitled to decide the case by reference to the arguments put forward and the authorities cited by counsel for the parties.
[69] Consequently, the appellant's damages are assessed as follows:
[70] The parties have sought leave to make submissions on costs. It is convenient that when so doing, they make submissions as to the content of an appropriate order to reflect these reasons. The order will need to provide that:
3. judgment be given in the proceedings for the appellant against the respondent, in the sum of $156,650.
[71] I would direct that, within seven days of today's date, the parties file and serve submissions on costs and as to the content of an order to reflect these reasons which do not exceed four pages in length.
[72] MORRISON JA: I have had the benefit of reading the reasons prepared by Muir JA. I am generally in agreement with what his Honour has said in relation to the matters of liability and assessment of damages. However, I wish to add some matters of my own.
[73] There was no issue at the trial that the U-shaped piece of metal cut by the appellant was sharp and potentially dangerous. Evidence to that effect came not only from the appellant, but also from Mr Ridings,[33] a director of his employer, and from Mr Menz, an electrical subcontractor on site. The evidence of Mr Ridings and Mr Menz amply supported a finding that harm was foreseeable if such a piece of metal was left where others could come in contact with it.
[74] The evidence before the learned primary judge revealed it was Mr Menz who devised the method of cutting pieces of the U-shaped metal in order to attach them to the fixed framing on the ceiling. That method was not devised by Mr Ridings, or anyone else from the appellant's employers.
[75] The evidence of Mr Ridings was that he discovered the method of cutting and using the U-shaped sections some time after its use had commenced. Thus when asked why his company had adopted that method he said, "Because it seemed to be the most logical way to eliminate the risk".[34] Then when asked whether it was something that he had instructed his employees to do, or whether it was something that was always done in the industry, his response was,
"It was something that I came to - I was at the site a day or two before and I asked them - I asked Mitch what he was doing. He explained to me that Keith had instructed him ..."[35]
[76] In cross-examination he was asked whether it was his idea. His response was,
"well, it was something that was proposed to me. I actually asked what was being done and it was proposed to me that that was what had occurred down below when I asked what they were doing. ... They told me exactly what they were doing. I agreed upon it. I'm a contractor, I agreed that it was an appropriate method."[36]
[77] The appellant's evidence was that Mr Ridings had shown him how to take the piece of scrap metal, how to cut it off and how to flare the edges out a little bit so that it would sit up against the steel framing fixed to the ceiling.[37] He said the demonstration by Mr Ridings had been at least three weeks prior to the incident, and had occurred on the third floor. At the time of the incident the appellant was working on the fifth floor. In the same passage of evidence the appellant said that he had been given no instructions about where to cut the steel, whether to take care with the sharp pieces, how to handle it, where to place the off-cuts or how to place them.
[78] It is evident from Mr Ridings' evidence that he did not give any instructions beyond adopting the method of work which Mr Menz had devised.
[79] The failure of Mr Ridings to give any instructions in relation to the adopted method of work is significant for two reasons. First, this was a method of work which had not been devised by the appellant's employer, and therefore had not been specifically addressed in any system of risk assessment or safety analysis. It was, in effect, a new system introduced part way through the appellant's work.
[80] Secondly, the absence of any instruction occurred in circumstances where Mr Ridings' own evidence was that:
(a) the tool box on which the sharp metal had been left was just that, namely a tool box, and was not to be used as a tool bench;[38]
(b) had he seen a sharp U-shaped piece of steel sitting on top of the tool box he would have told the appellant to move it, "because people want to go in there and get stuff out of it";[39] this was a clear recognition that others might be injured when they went to use the tool box if something sharp was left on it;
(c) he would not have wanted a sharp object such as a Stanley knife left on top of the tool box.[40]
[81] There was no challenge to the appellant's evidence as to the demonstration by Mr Ridings, nor the absence of any instructions. The respondent's case proceeded on the basis that the risk of the sharp object was so obvious that no warning was needed, and that it was a risk which had been created by the appellant when he cut the U-shaped steel and left it (the cut off) on the tool box.
[82] In my view, the question of whether there had been a breach of duty has to be approached in light of the evidence that I have referred to above. The appellant was introduced to a method of work, namely the cutting of the U-shaped steel sections and fitting them to the frame on the ceiling, which was a method of work not devised by his employer. It is true that Mr Menz, who was the subcontractor on site, stood in many ways in the shoes of a supervisor to the appellant, but that seems on the evidence to have simply been the product of his experience and the appellant's inexperience. When Mr Ridings, for the employer, discovered the method that was being used, he merely adopted it without giving any apparent thought to whether those using it, and particularly a relatively inexperienced apprentice such as the appellant, should be given further instructions to safeguard against harm. In essence, those carrying out that method of work (presumably Mr Menz and the appellant) told Mr Ridings what they were doing and he "... agreed upon it. I'm a contractor, I agreed that it was an appropriate method".[41]
[83] In the light of that evidence it is wrong to say that it was the appellant who created the danger. True it is that he cut the piece of steel on the day he was injured, and placed it on the tool box. But all he was doing was what his employer had sanctioned.
[84] Those facts fall to be considered in light of what the High Court had to say in Wyong Shire Council v Shirt: [42]
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
[85] Further, in a situation where there is a foreseeable risk in the method of work, the High Court has stated:
"In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. ... The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence."[43]
[86] Later in McLean v Tedman[44] the High Court stated:
"The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."[45]
[87] In this case a relatively inexperienced worker was permitted to adopt a method of work, which was not devised by the employer, but adopted out of expediency with little effort given to actually assessing whether it was safe to the appellant or others working in the workplace. The risk was obvious to the employer, so much so that the sharp piece of steel was left at a place that the employer would have advised against, for the very reason that others would be brought into proximity with the sharp steel when they came to use the tool box.
[88] Whilst the appellant's evidence was that this was the first occasion on which he had performed the task of cutting the steel and fixing it to the ceiling, there was evidence to the contrary from Mr Menz. According to the appellant they were working on level 5 on the day in question, and the demonstration by Mr Ridings had been when they were on level 3. Mr Menz was asked whether he had observed the appellant carrying out the particular task and the answer was in the affirmative "On Level 1".[46] The learned primary judge did not address which version of those events he accepted, but in my respectful opinion that would not matter to the outcome. Even if the appellant had done the task a few times before, that would not relieve the employer from observing its duty to provide a safe system of work for the appellant.
[89] I agree with the direction proposed by Muir JA.
[90] MARGARET WILSON J: I agree with the reasons for judgment of Muir JA, and with the direction his Honour proposes.
[1] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [8]-[10].
[2] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [26].
[3] [2000] NSWCA 66 at [42].
[4] [2005] HCA 19; (2005) 221 CLR 234 at 246-247.
[5] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [28].
[6] [1984] HCA 60; (1984) 155 CLR 306 at 311-312.
[7] (1982) 56 ALJR 872 at 873.
[8] McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 312-313.
[9] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 461-462 per Hayne J.
[10] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 455-456 per Hayne J.
[11] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 480-481 per Callinan and Heydon JJ.
[12] See e.g. Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 at 843.
[13] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [35].
[14] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [38].
[15] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [39].
[16] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [42].
[17] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [33].
[18] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [46].
[19] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [47].
[20] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [43].
[21] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [38].
[22] [1995] HCA 5; (1995) 182 CLR 1 at 16.
[23] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [47].
[24] [1994] 1 Qd R 258 at 265.
[25] [2012] QCA 183 at [43].
[26] [1954] HCA 65; (1954) 92 CLR 190 at 196.
[27] Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258 at 264.
[28] Heywood v Commercial Electrical Pty Ltd [2013] QSC 52 at [37].
[30] Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256 at [45].
[31] Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256 at [45].
Heywood
Commercial Electrical Pty Ltd [2013] QCA 270
(2005) 79 ALJR 839
(1982) 56 ALJR 872
(1984) 155 CLR 306
(1995) 182 CLR 1
(1954) 92 CLR 190
(2005) 221 CLR 234
(2005) 223 CLR 422