South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59

South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59 - TASSC 2003 case summary — Zoe

[18]

4 In 1991, Multi-Construction Services engaged the plaintiff to perform the electrical work on the construction of the Freycinet Lodge. Whilst working on large projects such as these, in order to protect his business, the plaintiff continued to take on and perform electrical work for domestic clients. As the major projects came to an end, the plaintiff obtained work with two businesses, Sasafras Stock Feed and Perfector Produce, with whom he contracted to work at an hourly rate. The work involved the design and implementation of the electrical services required by these businesses. The plaintiff described this sort of arrangement as labour-hire. He was attracted to it because of the consistency of the work and the substantial reduction in the overheads which he had to carry; the work did not require him to provide materials. Consistent with the plaintiff's interest in this sort of arrangement, he responded to an advertisement for an electrician placed in late 1993 by the first defendant, Loughrans. In early 1994, the plaintiff began what was initially intended to be a flexible working arrangement with Loughrans at an hourly rate of $25. Shortly after the plaintiff commenced working with Loughrans, he agreed to a request that he, in effect, work full time for Loughrans and thereafter he attended Loughrans' Wivenhoe office daily, arriving before 8am and not leaving until after 5pm. On the business card which Loughrans provided to the plaintiff, his position was designated as that of an estimator. Within a short time of the plaintiff starting with Loughrans, he began assisting with the preparation of estimates for the purposes of quotes for substantial jobs. The then manager of Loughrans was Michael Rutherford, and the second-in-charge was Gregg Sharman. The plaintiff performed work subject to the direction of these colleagues. At the time, Loughrans also employed about 10 to 15 electricians who were working in the field, that is, away from the Wivenhoe office. In late 1994, the plaintiff was heavily involved in the preparation of a tender to the second named defendant, Norths, for the construction of a mobile woodchip loader to be used for loading ships. The preparation of the tender was risky and difficult, as the job was substantial, but under-designed. Upon the successful completion of that tender, Mr Rutherford requested the plaintiff to take over the preparation of Loughrans' tender referable to a further Norths' project, the construction of a woodchip mill at Hampshire. This was a substantial and well designed project. Loughrans' tender, which exceeded $1,000,000, was accepted and thereafter the plaintiff became involved in procuring the materials Loughrans required to complete the project.

[23]

8 During the afternoon of Friday 20 January 1995, Mr David Davis, an engineer whose company had contracted with Norths to prepare a list of spares for the Hampshire Mill, visited the site in order to familiarise himself with the mill. The arrangements for Mr Davis' visit had been made with Greg Stanford, a mechanical engineer employed by Norths. He was one of the employees of Norths who were involved in the supervision of the construction of the mill. He regularly attended the site and on the day in question, Mr Davis travelled to and from the site with Mr Stanford. One of the last things Mr Davis did at the site was walk to the upper end of the C20 conveyor to inspect a drive motor and other items. Mr Davis accessed the C20 walkway via the stairs that had, that day, been installed by TEC. His access to the walkway was unimpeded, there was nothing to warn him of any danger associated with his use of the walkway. As Mr Davis walked to the upper end of the conveyor, he was shocked to find that a rectangular section of walkway grating was missing. I find the missing section was about 20 metres from the upper end of the walkway at a point where the walkway was approximately 23 metres above the ground. No precise evidence was given of the dimensions of the missing grating. I have not located a reference to the width of the C20 walkway in the head contract. The width specified in that contract for a catwalk and a walkway adjacent to the two belt conveyors is 30 inches. I find that the dimensions of the missing grating were about 1.2 metres long and .75 metres wide. Mr Davis navigated the gap in the walkway by placing his feet on the angle iron supports for the missing section and by holding on to hand supports on either side of the walkway. Upon returning to the ground, Mr Davis looked around for a means of warning others of the hazard presented by the absent section of walkway. He found some flag rope in the vicinity of the stairs leading to the walkway which he wound across the stairs so as to create a spider web effect and tied it off. Shortly after Mr Davis had attended to this, Mr Stanford, who had been engaged elsewhere on the site, came to drive Mr Davis back to Burnie. Mr Davis told Mr Stanford of the gap in the walkway and of the flag rope he had tied across the stairs as a temporary warning barrier. As they drove from the site, Mr Stanford stopped at a site office and went inside. Mr Stanford did not give evidence. Whilst it is not unreasonable to infer that Mr Stanford went into the site office with the intention of dealing with the gap in the walkway, in the absence of any evidence about what then occurred, I am unable to reach any conclusion on the balance of probabilities about what steps, if any, he took to ensure that the danger presented by the gap was dealt with. If he in fact gave appropriate directions to someone about promptly dealing with the problem, they were not complied with. My uncertainty about what Mr Stanford did or did not do, upon being informed by Mr Davis of the gap in the walkway, is compounded by the following answer Mr Stanford provided to an interrogatory delivered by the plaintiff to the second defendant:

[49]

20 Michael Meldrum said that on the day of the cable pull, he and the plaintiff walked up the C20 conveyor in order to check where the cable was to be pulled and assess the job. In the course of their walk, the plaintiff showed Mr Meldrum what the plaintiff wanted him to do and the plaintiff discussed with Mr Meldrum the number of workers needed on the walkway to carry out the task. Mr Meldrum's belief is that this was the first occasion on which he or the plaintiff had accessed the walkway. In his evidence-in-chief, Mr Meldrum said that as they walked up the walkway, he noticed a gap in the walkway grating which had been covered by a piece of marine ply and further up the walkway came upon a gap where a section of the walkway grating was missing. Mr Meldrum said that he and the plaintiff crossed the gap and after reconnoitring the length of the walkway, they returned to the ground. Under cross-examination, Mr Meldrum said that he had no clear recall of seeing the gap in the walkway. A statement Mr Meldrum provided to a loss assessor on 9 February 1995 satisfies me that on the day of the accident, Mr Meldrum in fact saw the gap in the walkway and that he and plaintiff traversed it. Mr Meldrum gave evidence that when he and the plaintiff returned to the ground, they did not mention the gap to anyone or do anything about it. Subsequent to the inspection Mr Meldrum and the plaintiff carried out, they returned to the walkway with a group of workers to carry out the cable pull. Initially a winch was used in an endeavour to pull the cable, but that method was abandoned in favour of the use of hands-on force. Mr Meldrum said that in the course of the work, the plaintiff was giving directions and liaising with the other two teams of workers via a walkie-talkie. Mr Meldrum estimated that in the course of his involvement in the work, he crossed the gap in the walkway about 14 times. Under cross-examination, Mr Meldrum: agreed that as between he and the plaintiff, when on the walkway, the plaintiff was the leader; resiled from evidence he had given about seeing flag rope attached to the side of the stairs leading to the walkway; and gave evidence which suggested that much of his recall about the gap in the walkway was reconstruction. Whilst Mr Meldrum was an unimpressive witness, I find that he and the plaintiff, in effect, reconnoitred the cable pull, discussed the number of workers needed to perform the task, and discovered the gap in the walkway. This evidence accords with what is likely to have occurred and is not contradicted by any other evidence.

[56]

27 Matthew Ling said he had worked at the Hampshire Mill site for about two or three months prior to the plaintiff's fall. He assisted with the cable pull. He is not sure how many times he went up the walkway on the day of the pull. It must have been at least two occasions, as he assisted in pulling the first cable down C20 and over the next conveyor, C14, and would have had to go back up C20 in order to assist with the second cable pull and the transfer of the first cable. His recall is that there was flag rope across the stairs leading to the C20 walkway which was tied on to the handrail; it was necessary to either step over the rope or get under in order to access the walkway. As he moved up the walkway, he noticed a piece of plywood had been placed over one gap in the walkway (statement of 7 February 1995) and further on he noticed a gap in the walkway which was not covered. He said that he did not consider the gap to be a really big risk. He made a comment to Roger Nutting about the need to be careful when near the gap. In the course of giving his evidence, Mr Ling acknowledged that Roger Nutting was in charge of the cable runs generally, but said that Mr Nutting did not take charge of the work carried out on the conveyor; the plaintiff took charge of this work and as to this work, the plaintiff was the boss. More generally, Mr Ling described the plaintiff as a hard worker and a busy bee. Mr Ling said that after the first cable had been pulled the length of the conveyor, the group went back to the upper end of C20 to pull the second cable, but had to change tack and transfer the first cable from the rollers to the cable tray before getting on with the second cable pull. Mr Ling said that as this was occurring, Doug Couzens, who was at the base of the conveyor near the rolls of cable, called to the group to get a move on; Mr Ling called back explaining the need for the cable transfer. Mr Ling said that the plaintiff was in the group as they were performing the cable transfer and during the performance of this exercise the plaintiff fell.

[57]

28 Roger Nutting was employed by Loughrans at the Hampshire Mill site from about October 1994. He was an experienced electrician, having obtained his qualifications in 1970. He assumed some of the administrative responsibilities at the site, as well as performing work as an electrician. Prior to the occasion of the plaintiff's fall, Mr Nutting had been appointed Loughrans' leading hand at the site. As to the cable pull itself, he said he was not running that exercise. He confirmed the correctness of a statement he had previously made with respect to the cable pull that: the plaintiff was giving the main directions; when the plaintiff came to the Hampshire Mill, he had a lot of input with management; if anyone was giving instructions, it was the plaintiff; and he was not sure if the plaintiff had authority over him, it never came to that, the plaintiff had a fair bit of pull within the company. Mr Nutting said that for someone to have walked over the conveyor before preparatory work on the cable pull began would have been standard practice, but he did not know whether this had occurred; if it had occurred, he was not involved. He had no recall of seeing a flag rope or the like in the vicinity of the stairs at the beginning of the walkway. The first time he walked up the C20 conveyor walkway on the day of the plaintiff's accident, other workers were already up there. He vividly remembered seeing that a section of grid mesh was missing from the walkway, and commenting on the need to be aware of it at all times. Everyone was aware of the gap and they were all constantly reminding one another of it and the need to be careful. He crossed the gap about four times and did so with a fairly lengthy stride whilst holding hand supports. The gap was not much of a problem to him and he did not feel threatened by it. After completing the first cable pull and returning to the upper end of C20 and commencing the second cable pull, it was realised that the first cable needed to be transferred from the rollers to the cable tray. He participated in the cable transfer during which the plaintiff fell.

[59]

30 In a written statement made on 7 February 1995, Mr Sharman said that before he went up C20, he was handed a cable sock which he passed on to Mr Rutherford. Whilst he did not mention this in the course of his oral evidence, I am satisfied that this occurred. That Mr Sharman did so is consistent with his evidence that the cable transfer had begun by the time he got to the top of C20. A cable sock had been used to connect the first cable to the rope which pulled it and would have been needed for the same purpose in relation to the second cable. As Mr Sharman, for the first time, made his way up the walkway on conveyor C20, he came upon the gap in that walkway, and was alarmed. In the written statement referred to, he said that when he got to the workers, he said words to the effect that they should not be up there, but received no response. In the course of his oral evidence, Mr Sharman said that this comment was directed to the plaintiff. As no specific mention of this was made in Mr Sharman's written statement, I am not prepared to accept that this is so. Upon Mr Sharman's arrival at the end of the walkway, some of the men were already working their way down the walkway transferring the first cable from the rollers to the cable tray. In the course of this process, the plaintiff moved down the walkway past Mr Sharman and fell through the hole. When giving his evidence, Mr Sharman acknowledged that the hole was very dangerous and that, with the benefit of hindsight, he should have insisted on the men stopping work; he explained his failure to do so on the non-response he received to his initial, and only, expression of concern about the hole and the absence of any pause between his crossing the hole and his involvement in the cable transfer. He estimated the time lapse between him crossing the hole and the occurrence of the fall at "probably less than 5 minutes". On the basis of his oral description of what occurred and the written statement to which I have referred, I am satisfied that the time lapse was considerably less than five minutes.

[168]

76 There was some inconsistency in the evidence about the flag rope. I find that Mr Davis tied the flag rope across the stairs as he described and that the rope was in place when the plaintiff first accessed the walkway. I infer that the plaintiff removed, or partly removed, the flag rope to facilitate access. It was almost inevitable that he would do so. Stairs had, only the previous day, been installed to provide Loughrans with access to the walkway. Save for the general warning provided to the plaintiff by the flag rope, the plaintiff had no warning of the gap in the walkway until he came upon it. The magnitude of the danger presented by the gap was immediately obvious; anyone who fell through it was likely to die. The evidence satisfies me that all concerned, including the plaintiff, recognised that the plaintiff was the leader of the group on the walkway. He was in charge of a group of workers who were to undertake work which required them to pass over the gap in the course of performing the activities involved in the cable pull. The plaintiff should have decided that work would not proceed until the gap had been covered. Instead, in the face of concerns expressed by some of his crew, he pressed on with the work. Whilst Loughrans was subject to time constraints in relation to the completion of its contract, I am not satisfied that the pressure so imposed was other than usual, or more particularly, that pressure was put on the plaintiff to complete the cable pull. It is understandable that a reasonable worker would want to get on with the job, however, it was fool-hardy in the extreme for the plaintiff not to arrange for the gap to be covered; covering the gap was a simple task and there were ample Loughrans workers available to attend to it. Some witnesses, including Mr Rutherford, gave evidence that it was TEC's responsibility to cover the gap; that being so, TEC should have been immediately requested to do so. TEC was represented on the site all that Saturday by Rodney Miller; he was eminently suited to arranging for the gap to be covered, or (if it was available) to arranging for the installation of the grating that had been ordered for the gap. That gating was installed first thing the next day. If there was concern about delaying the cable pull until TEC had covered the gap, then, in my view, the danger presented by the gap was so great that no question of demarcation should have deterred the plaintiff from directing Loughrans employees to cover the hole. The plaintiff and others worked on the conveyor for at least two hours before his fall. Whilst the plaintiff's action in stepping into the gap may be explained on the basis of inattention, his failure to defer work until the gap had been covered and his persistence with work for an extended period in the face of the danger presented by the gap cannot be so categorised and was the antithesis of the conduct of a reasonable and prudent man. The contributory negligence of the plaintiff is established.

[178]

83 TEC was aware of the danger presented by the gap from 4 January 1995 when construction work on the conveyor ceased. Whilst at that time the danger presented by the gap was foreseeable rather than immediate, TEC should, at that time, have covered the gap. Access via a temporary ladder was available to the walkway. The presence of a flag rope across that ladder would not have barred workers from accessing the walkway and did no more than provide a general warning that there were hazards on the conveyor. That TEC workers might access the walkway was recognised by Mr Williamson in his handwritten statement where he said that after 4 January 1995 the conveyor was a "low commitment area for TEC activities". It seems that TEC was indifferent to the danger constituted by the gap. Not only did it fail to cover the gap, but from Mr Miller's notes, it seems that the missing grating was not ordered until about 13 January 1995. A further indication of TEC's indifference to the danger presented by the gap is the installation of the grating prior to work commencing on Sunday, 22 January 1995. This strongly suggests that the grating was available for installation, but that TEC had not attended to the task. By 20 January 1995, the likelihood that an injury would result from TEC's failure to cover the gap was real and imminent. TEC (certainly Mr Williamson and probably Mr Miller) knew that access to the walkway was required "to allow a large contingent of electricians ... to pull cables". Armed with this knowledge, TEC persisted with its failure to cover the gap and did not warn Loughrans of the gap. It is noteworthy that neither Mr Williamson nor Mr Miller said they gave a direction that at the same time that access was provided to the walkway the gap should be covered. The latter task would have been far easier for Mr Hardy to perform than the installation of the stairs. That this direction was apparently not given suggests that Mr Williamson and Mr Miller did not address the risks of the gap. This suggestion finds further support in the absence of any reference in their statements and notes to giving a direction about providing a warning of the danger presented by the gap. As no flag rope was across the stairs when Mr Davis accessed the walkway on the same day that the stairs were installed, in the absence of any evidence from any of the TEC employees referred to, I am not satisfied that Mr Hardy put flag rope across the stairs or that he advised Mr Miller that he had done so.

[200]

101 The injuries to the plaintiff's right arm included the loss of most of the proximal row of his carpal bones, the loss of part of the head of the ulna, and a partial ulna nerve injury with a lot of dirt ingrained in the nerve. The arthrodesis performed on his right wrist achieved a sound result. His ulna nerve palsy did not recover and he is left with reduced sensation in the little, ring and middle fingers of his right hand. In an endeavour to overcome his problems with his ulna nerve, the plaintiff underwent operations on 17 April 1996 and 10 May 1996 which involved the exploration and decompression of the nerve at his right elbow and his right wrist. Whilst these operations reduced the rigidity of his wrist, they did not lessen his ulna nerve-related problems. They also set back his progress insofar as he contracted a staph infection whilst in hospital, and he lost right arm strength and hand dexterity whilst recuperating. By the end of 1995, with the aid of exercises, he had regained the ability to close his right hand into a fist. The surgery carried out on his right arm in 1996 put him back to where he had been in early 1995 with regard to wrist pain and his ability to utilise his hand. His levels of distress, lack of confidence and indecision were also, once again, much the same as they had been following his accident. To maximise the use of his right hand, he again had to go through a regime of exercises and physiotherapy which he found irritating and frustrating. For a short time after each of the 1996 operations, he found it necessary to resort to pain-killing medication. The pain and discomfort he suffered as a consequence of the operations severely interfered with his daily comfort, his capacity to sleep and his relationship with his wife. Using a chain saw he had previously gathered wood for the home as needed. He was frustrated to be unable to perform tasks such as this and irked by the need to pay for the delivery of firewood. He found it difficult to restrict his physical interaction with his children.

[238]

142 In considering contingencies, I am conscious that had the plaintiff not been injured, his drive and abilities may have resulted in him earning more than I have estimated and working for longer than I have estimated. On the other hand, it may be that his earnings would have been less than I have estimated as a consequence of sickness, accident or lack of work. I consider it highly unlikely that the plaintiff, in his pre-accident condition, would have been out of work for an extended period. I have, of course, recognised that during a period of economic inactivity the plaintiff may have found it difficult to obtain appropriately remunerative work. In considering the possibility that regardless of his injuries the plaintiff may have lost income due to injury or accident, I am conscious that the plaintiff works with electricity and in situations where work can involve considerable risks. The plaintiff is a "can do" worker who, as his accident demonstrates, tends to focus on getting the work done at the expense of safety considerations. The plaintiff's pre-accident health is also relevant. Prior to the accident he had suffered from esopheria, his right eye tends to turn in. To deal with this condition, in 1987, the plaintiff was prescribed glasses with a rectifying prism. It seems that the plaintiff had some hearing problems prior to the accident, as in December 1988, he attended the Burnie hospital complaining of loss of hearing following a fall and in January 1989 he returned to the hospital and requested that he be referred to an ear, nose and throat surgeon referable to the problem. An x-ray of the plaintiff's lumbar spine subsequent to the accident revealed that he had a first degree spondylolisthesis at the vertebal body of L5 and S1. The spondylolisthesis pre-dated the plaintiff's accident. Dr Maclaine-Cross said the slippage was 1 centimetre. There is no suggestion that at any time prior to the plaintiff's accident any of the matters to which I have referred had interfered with his employment. Their existence is, however, relevant to his vulnerability and the possibility that they might have interfered with his capacity to work at some time in the future. I will deduct 15 per cent for contingencies.

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Judgment (254 paragraphs)

South v James Loughran & Sons Pty Ltd & Ors [2003] TASSC 59 (4 July 2003)

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Legislation Cited (2)

Cases Cited (8)