McGlashan v QBE Insurance

Remaining issues 2At a directions hearing on the 9th of May 2014, I identified 3 outstanding matters for the consideration of the parties: (1)Should I have made contingent findings concerning contributory negligence, which I did not, lest there be an appeal; (2)Is it necessary to decide the question of whether the policy of liability insurance issued by the defendant covered Lidoran Roofing Pty Ltd, had it been legally liable for the consequences of the plaintiff's injures; (3)What order should be made under Rule 28.4 Uniform Civil Procedure Rules 2005 (NSW). 3I heard further argument from the parties about these issues on 26th May 2014. Essentially the plaintiff's legal representatives submitted that it was unnecessary for me to make any further decision. I understood this to be the adoption of a position based upon the unwillingness of the legal representatives to commence an appeal from my decision. Upon further questioning of Mr Grey, solicitor, who appeared for the plaintiff, it became apparent that Mr McGlashan, himself, was still considering his options. For that reason I reserved my decision until today to provide Mr McGlashan with the opportunity to put any further submissions that he wished to make before me. I have received no such submission. 4Mr Chen of Counsel who appeared for the defendant argued that I should make my contingent findings in relation to contributory negligence, decide the insurance question, which was hived off at the trial, and enter judgment in favour of his client.

Decision 5I have decided that I should make contingent findings in relation to contributory negligence which are relevant to the calculation of damages lest there be an appeal; not decide the separate insurance question; and enter judgment in favour of the defendant. My reasons follow.

Contributory Negligence 6As I have decided the question of primary liability and assessed the damages to which Mr McGlashan may have been entitled if my decision were wrong, I think it appropriate that I record my findings about contributory negligence. Contributory negligence is not mentioned in my reasons of the 29th May 2013 nor in the separate questions as reformulated by me, but it is raised on the pleadings and was fully argued by the parties orally and in writing before I acceded to the application to decide the separate questions. In truth, my failure to deal with it in my judgment of 1st May 2014 was an oversight. 7Mr McGlashan was Lidoran's independent contractor. He was an experienced roofer who had been in his own business for many years. Conventionally, the duty owed by a principal to its independent contractor is formulated in accordance with the judgment of Brennan J in Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16 as I discussed at [32] - [42] of my judgment of 1st May 2014. In the ordinary case, the content of that duty does not extend to an obligation to institute and maintain a safe system of work for the independent contractor. 8My decision about that would have been different had the plaintiff proved that Lidoran assumed responsibility for the institution and maintenance of a safe system of work in the knowledge that Mr McGlashan was relying on it to do so; that is had I found he was legally vulnerable. 9I made contingent findings about the question of breach at [75]-[80] of my earlier judgment. At [77] I decided that assuming the existence of a duty of care, "a reasonable person in Lidoran's position would have taken the precaution of providing adequate means of securing the ladder, even to the extent of providing a second tradesman, or offsider, to foot it if required". I found that, but for the availability of an offsider to foot the ladder during Mr McGlashan's descent, his personal injury would not have occurred. 10I also found that accepted safe practice in the roof-fixing industry involved long ladder work being performed as a two-man job, the second man footing the ladder (at [43]). I accepted the evidence of the expert engineers, Hugh Stark and Ron Beckett that it was possible for an unaided tradesman to secure a ladder by tying, or lashing it, to appropriate anchor points which could be reached from ground level. However, none of the experienced roofers who gave evidence before me referred to this as a possible procedure. Accordingly, I found that the standard of reasonable roofers, as opposed to reasonable engineers, did not extend to the adoption of this practice. Moreover there was no evidence before me of any appropriate anchor point that could be reached from ground level to secure the ladder at the Sefton job being performed by Mr McGlashan at the time of his injury. 11Questions of contributory negligence are to be decided in accordance with the provision of s 5R Civil Liability Act 2002 (NSW), that is, objectively. The principles expressed in ss 5B and 5C of the Act likewise apply to questions of contributory negligence. But it should be borne in mind that the specific provisions of the Act operate against, and on the assumption, of the continued validity of common law principles, except where those principles are excluded, either expressly or implicitly, by the statute. 12Where an "employer's" duty extends to instituting and maintaining a safe system of work, an employee injured by an incident of the system will generally not be guilty of contributory negligence: Davies v Adelaide Chemical and Fertiliser Co Ltd (1946) 74 CLR 541 per Dixon J at pp. 552-3. This principle may be taken to explain the decision in General Cleaning Contractors Ltd v Christmas [1953] AC 180 at 193-4 per Lord Reid. 13On the assumption that Lidoran's duty of care extended to instituting and maintaining a safe system of work, I would not have found Mr McGlashan guilty of any contributory negligence in performing the work alone, without an offsider to foot the ladder, notwithstanding that as an independent contractor, he could have refused to perform the job if in his judgment it could not be performed safely by one man. As Lord Oaksey pointed out in Christmas at (p 190) workmen, "have to make their decisions on narrow windowsills and other places of danger, and in circumstances in which the dangers are obscured by repetition"; see also Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at pp 177-8. The defendant has not discharged his onus of proving what precaution was reasonably available to a reasonable person like Mr McGlashan working alone to secure the ladder. He might have decided not to perform the job. But his decision to undertake it, in my judgment was not of itself unreasonable on the assumption adopted for the purpose of the argument that he was entitled to expect that Lidoran were responsible for sending the offsider, and had let him down.

The insurance question 14At the Trial, the insurance question was almost fully argued before me when an application was made on behalf of the plaintiff for an adjournment to enable another insurer to be joined as a second defendant, lest I decide that the "other insurance provision" in QBE's policy operated to deny Lidoran cover. It was the existence of a policy issued by the proposed new party that was said to engage the "other insurance" provision: see Zurich Australian Insurance Ltd v Metals and Minerals Insurance Pte and Others Ltd [2009] HCA 50; (2009) 240 CLR 391. After the adjournment application was argued, I took a short adjournment to consider my decision. When I resumed before pronouncing my order or giving my reasons, I was informed that both parties agreed that I should decide the primary questions informing Lidoran's liability separately from, and prior to, the insurance issue. 15In these circumstances, I do not think it appropriate to decide the insurance issue now. The separate question procedure provided by the rules envisages that final judgment may be entered in a case without all issues between the parties being decided, notwithstanding the rule of practice that a Judge at first instance should decide all issues presented for determination even if they will not be decisive of the case, to allow for the possibility of an appeal. 16My decision on the question of primary liability renders the determination of the insurance question almost entirely otiose. If my decision were overturned on appeal, it may yet remain that the plaintiff would wish to join the other insurer as a defendant. He is probably not out of time: Kinzett v McCourt and Others [1999] NSWCA 7; (1999) 46 NSWLR 32. It would be inimicable to the interest of justice to decide the question in such circumstances lest a plaintiff with a valid claim falls between two stools. Natural justice would require me either to hear the rest of the plaintiff's legal argument, or decide the sidetracked adjournment application. I decline to answer the insurance question. 17Moreover, it must have been in the contemplation of both parties that if I decided the primary issue against the plaintiff, the insurance question would fall away.

Judgment 18As my decision of the separate questions substantially disposes of the proceedings, or at least the plaintiff's claim for relief in the proceedings, I think it appropriate that I enter judgment in favour of the defendant to finally dispose of the proceedings. 19Before pronouncing orders, I record Mr Chen has foreshadowed an application for costs on the indemnity basis, based upon certain offers of compromise served during the course of the proceedings. I think it appropriate to deal with this application in Chambers without the need for the parties to attend and I will make directions in that regard in my final orders. 20My orders are: (1)Judgment for the defendant; (2)The plaintiff to pay the defendant's costs of, and incidental to, the proceedings on the ordinary basis forthwith after they have been agreed or assessed. (3)Grant leave to the defendant to apply to vary order (2) within 7 days of today by filing written submissions (not exceeding 2 pages) stating the costs order for which the defendant contends and the reasons why that order should be made, supported by an affidavit annexing any relevant offers of compromise; (4)The plaintiff to have a further 7 days to file any written submissions (not exceeding 2 pages) in response, supported by any evidence to which he wishes to refer.

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