District Court of WA|2008-12-22

VLAHOS -v- JASMINA INVESTMENTS PTY LTD [2008] WADC 181 (22 December 2008)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : VLAHOS -v- JASMINA INVESTMENTS PTY LTD [2008] WADC 181

Torts - Negligence - Employer and employee - Duty to provide a safe system of work - Two unrelated accidents at work - Causation - Quantum of damages agreed

The defendant is liable to the plaintiff in damages for the first, but not the second, of the two accidents pleaded

1 EATON DCJ: Stamati Vlahos is 54 years old having been born on 4 April 1954. On 1 October 2004 he was employed by Jasmina Investments Pty Ltd at its business known as the "Marracoonda Motel" at 375 Great Eastern Highway, Redcliffe, Western Australia as a general handyman/maintenance worker. Having worked in Europe for several years the plaintiff returned to Australia in 2002 and began looking for work. He found a job vacancy at the Marracoonda Motel and applied for it. He was, as he said in evidence, originally employed there as an "all-rounder". In that capacity he was required to use the motel shuttle vehicle to take people to and from nearby Perth Airport and to prepare some meals. After a few months he was offered the job of maintenance man, which he accepted. In that capacity he attended to the gardens and the grounds, the swimming pool and to various minor problems as and when they appeared such as, leaking taps, cracked tiles and doors failing to close properly. In summary, he said, he attended to a "whole variety of the motel's day-to-day function".

2 He described the motel as having over 100 rooms with a new section and an older section, the former being the two storey and the latter comprising single bungalow units.

3 The tools provided to him were kept at the motel workshop. No doubt guests reported matters in need of maintenance from time to time. Those reports were recorded in a maintenance book kept at reception. Each morning the plaintiff would, upon arrival at work, check the book and attend first to those matters that were urgent.

4 On 1 October 2004 the plaintiff started work at about 5.30 am. As usual, he consulted the maintenance book in reception, making a handwritten note of things that needed to be done. He then, with his list, went to the workshop and prioritised the various jobs. He wasn't able to recall specifically what was on the list on that day because, as he said, it was just a normal day.

5 He recalls that he finished the urgent items at about 10.00 am and turned his mind to those jobs that had been less pressing. One was the need to change a light in the bar area. With that in mind he set off for the bar with his bucket containing spare lights and a ladder.

6 He explained that he was provided with two ladders, both kept at the workshop. Both were aluminium. Both had foot treads rather than rungs. Both were the type which folded out to a width constrained by unfolding bilateral braces such that, when the base was extended, its four legs provided stability on a flat surface. There was a larger and a smaller ladder, the former being about 1.8 metres long and the latter being about 0.8 metres long. The smaller had three steps including the top one. The steps were evenly spaced. The plaintiff could not remember how many steps the longer ladder had. It was used to clean gutters and occasionally to replace a fan in a room. Its braces were slightly bent such that the legs did not fully open.

7 The plaintiff confirmed that the bar was on the ground floor and that access to it was through the glass front doors which had to be pushed open. When he left the workshop he was carrying the smaller of the two ladders. He did so, he explained, because, not being provided with a service vehicle with which to carry equipment, it was easier to carry the smaller of the two.

8 The workshop was room 69. It was, the plaintiff agreed, about 2 minutes walk from the bar. He explained that he avoided using the longer ladder because it was heavier, more awkward to carry and more difficult to manoeuvre in and out of rooms should he be required to, for example, change a light in a guest room. He tended to take the smaller ladder because it was lighter, less awkward and more manoeuvrable. It was, he said, a matter of practicality or convenience.

9 The light to be replaced was a small halogen fitting. At its base were two protruding pins which needed to be inserted into corresponding holes in the light socket. The light to be replaced was above the bar. The fitting that had ceased to function had to be removed and a new one installed.

10 Because the light socket was above the bar it was not possible to place the ladder immediately beneath the socket and stand erect, reaching above one's head while looking straight up.

11 In his evidence-in-chief the plaintiff explained what happened when he attempted to change the light. He said:

"That ladder, because once you reach to the second step, you've got no balance - your hands are just hanging out by the side - you've got not balance to reach up to the light - to the light fitting, and then you had to lean a little bit to the left, and the - the reason you had to lean to the left is because the light fitting was slightly inside the bar, and you had to guide the two prongs into - into the actual fitting, so it was a very difficult thing to do with that particular ladder. I could not do it. I tried in the past and it was just too dangerous, so I opted to use a bar stool, with the backing of the bar stool against the bar so it was steady. It was a five-legged bar stool. I put both knees on the bar, one hand - sorry, both knees on the bar stool, one hand on the bar itself and leaned forward and just - guiding the actual light fitting, or globe, into its slot, and I was just pushing my body slightly up to reach and to complete the task, that's when my left knee cracked."

12 He had the light in his left hand. His right hand was on the bar to provide stability.

13 My understanding of the foregoing is that, although the plaintiff had with him the small ladder, he carried it, not for the job in the bar but rather for tasks to be undertaken elsewhere in the motel on that morning. His past experience of changing lights in the bar area had taught him that it was too awkward, or unsafe, to use the small ladder standing on its four legs adjacent to the bar. It was more convenient and less dangerous to kneel on a bar stool. That is what he did, based on past experience of undertaking that particular task.

14 In cross-examination the plaintiff seemed to suggest that he was unable to reach the light fitting while standing on the second step of the small ladder he said:

"I couldn't do that with a ladder - with a small ladder, but I can do that with a bar stool, yes. Totally different angle to it, different proposition, because the actual bar stool, if you look, it's a certain height. Now, if I put my knees on that, put one hand on the bar, I have the height - distance to reach that light fitting. If I use a ladder, as you suggest, on the second step, put my hand on the bar and use my right hand to - I can't - it's impossible to reach. It's impossible to reach."

15 When asked how he knew it to be impossible he said that he had tried the small ladder to change lights in the bar. He said:

"It won't work. That's why I opted for the stool - for the bar stool".

16 There was another aspect, according to the plaintiff, as to why it was impractical to use a ladder at all for that task. He explained that, being unable to place the ladder underneath the light fitting, he was obliged, if using the ladder, to stand on it and move to one side. He said, in cross-examination:

"Like, if you move away from the - if you move in that direction, this moves away and it's not stable and it's not the right thing to do. It's a very unstable thing to do, so you'll never use a ladder and move away from it. You don't do that. You just never use any ladder like that and move away from the ladder. You just go up straight. ... so that's why I never used this - that's why I used the bar stool."

17 It seems to me, having regard to the tenor of the plaintiff's evidence both in chief and in cross-examination, that the reason why he used the bar stool in order to change the light was, firstly, because a ladder could not be placed beneath the light fitting which was above the bar and secondly, because standing on the second step of the three-step smaller ladder he was unable to reach the fitting. In any event, as he explained in cross-examination, using a ladder such that one had to stand on the ladder and lean to one side was inherently dangerous.

18 It is the case that the plaintiff, while kneeling on the stool in the bar changing the light above the bar, sustained an injury to his left knee.

19 On 21 April 2005 the plaintiff and a co-worker, whose name was Darren Woodnock, were required to cut a branch off a eucalyptus tree at the premises. The particular branch extended over a driveway and represented a hazard. The branch, at the trunk of the tree, was about 1.65 metres off the ground. Initially the plaintiff said that, at the trunk, the branch had a diameter of some 30 centimetres. The branch was 3 or 4 metres long. Using a carpenter's handsaw the plaintiff and his workmate took turns and eventually severed the branch from the trunk. It fell onto the driveway. In that position it was an obstruction. The plaintiff and his workmate decided, rather than leave the branch obstructing the driveway, that they would haul it off the driveway to a nearby garden bed. The plaintiff said:

"So he just grabbed one side of it, I grabbed it the other side of it just holding each end. He held one end, I held the other end opposite each other and we just dragged it to the right. That was my motion anyway, my motion was to the right in front of garden bed. So we 'heave ho'd' and just moved to the right and as I did my right knee cracked so then I had the similar procedure I had with the first knee."

20 The plaintiff sustained an injury to the right knee.

21 On 29 May 2006 the plaintiff sued the defendant in this Court claiming damages for personal injuries arising from the work accidents which occurred on 1 October 2004 and 21 April 2005 alleging that each was caused by the negligence of the defendant. The trial of those issues took place before me on 8 and 9 December 2008. At the outset counsel for the defendant announced that while liability in negligence remained in issue the parties had reached agreement as to quantum of damages in the event of the defendant being found liable in damages in respect of both injuries. On the morning of the second day of trial counsel for the plaintiff announced that the parties had reached agreement as to quantum so far as damages to be awarded for each injury were concerned. In each case the amount agreed was exclusive of workers' compensation payments paid to the plaintiff. What remained in issue was the question of liability in each case.

22 The plaintiff alleged that the first accident was caused by the defendant's negligence in that it, through its servants and/or agents:

(a) failed to provide the plaintiff with appropriate equipment, that being an articulated ladder;

(b) failed to provide the plaintiff with a workmate to assist in changing the light;

(d) invited or required the plaintiff to perform work that was dangerous or unsafe;

(e) failed to warn the plaintiff of any or all dangers associated with the work that he was invited or required to perform; and

(f) exposed the plaintiff to a risk of damage or injury of which it knew or ought to have known.

23 So far as the second accident was concerned, the plaintiff alleged that it was caused by the negligence of the defendant, its servants and/or agents, in that it:

(a) failed to provide the plaintiff with proper equipment such as a chainsaw and trailer to cut the trunk into smaller pieces and transport safely (sic);

(b) on the premises, failed to provide a safe system of work; and

24 So far as the first accident is concerned the defendant, by its amended defence, denied that it was negligent and pleaded that, if it was foreseeable that by kneeling on the bar stool the plaintiff might injure himself, the plaintiff's injuries were caused or contributed to by his own negligence in that he used the bar stool to change a light instead of using the ladder that was provided by the defendant for the task and that he failed to take any or any reasonable care for his own safety and health at work.

25 So far as the second accident is concerned the defendant denies that it was negligent, as alleged, and asserts that the plaintiff was free to cut the branch into smaller pieces with the saw used to cut it from the trunk.

26 It follows from the foregoing that the defendant asserts that the plaintiff was contributorily negligent in the first accident but not in the second.

27 The plaintiff gave evidence and called expert evidence from Ian McKenzie Gibson, a consultant ergonomist. The defendant called evidence from the current maintenance man at the Marracoonda Motel, David Brian Heathfield and expert evidence from Jennifer Rosemary Miller, an ergonomist.

28 David Brian Heathfield had been employed as a maintenance man at the Marracoonda Motel since 30 August 2005. He did not know the plaintiff. When he took up that job his equipment included three ladders, one about 12 foot long, another about 8 foot long and the third about 6 foot long. It was clear from his evidence that the small three-step ladder carried by the plaintiff on 1 October 2004 was not part of the equipment provided to him when he began the job. Of the three mentioned by him the 6 foot ladder was the opening type with its legs on each side connected by bilateral folding aluminium braces fixed together with a rivet. The braces, he said, on the 6 foot ladder were slightly buckled but the ladder itself was firm when opened up. His complaint about that ladder was that it was old and heavy. I infer that the smaller of the three ladders spoken of by Mr Heathfield was the larger of the two spoken of by the plaintiff.

29 It is apparent that Mr Heathfield disposed of all three ladders initially provided to him in favour of newer, lighter ones.

30 Of the three initially provided to him the two longer ladders were unsuitable for use in the bar. He did use the 6 foot ladder in the bar when changing light fittings. Exhibit 2, the light fitting identified by the plaintiff as being similar to or identical to that being handled by him during the first accident was identified also by Mr Heathfield as being the type of light fitting used above the bar. He had replaced those fittings and in doing so had used the 6 foot ladder, opening it up and placing it sideways beside the bar. Despite being old and heavy it was, he said, a stable ladder for that purpose and other tasks. He said that when changing the lights above the bar while standing on a ladder there was no need to lean over the bar.

31 In cross-examination Mr Heathfield said that the only practical problem with the 6 foot ladder was that it was too heavy.

32 The expert evidence comprised that of Ian McKenzie Gibson and Jennifer Rosemary Miller, both ergonomists. Both presented reports which became Exhibits 3 and 4, respectively. Both gave evidence at trial.

33 In his report Dr Gibson indicated that he was instructed to provide an opinion as to whether the plaintiff's duties exposed him to an identifiable risk of injury and whether a reasonably prudent employer could have taken steps to avoid, or lessen, such a risk. He had interviewed the plaintiff for that purpose on 14 April 2008 at his office. He did not, for the purposes of his report, visit the site or inspect any of the equipment used by the plaintiff. In his report he referred to Australian Standard AS/NZS 1892.1 - 1996 Portable Ladders, Pt 1: Metal which, he said, covered the safe design, construction and use of portable ladders. He then referred to s 5 of the standard dealing, he said, specifically with step ladders for industrial use which, he said, referred to the need for ladders to be constructed so as to be stable and to meet various test criteria for strength. He then concluded that the small ladder described by the plaintiff did not meet the requirements of the standard. That begs the question of the precise detail of the description given by the plaintiff to Dr Gibson.

34 He referred, in his report, to s 9 of the WorkSafe WA Code of Practice: Prevention of Falls at Workplaces (1997, revised 2004) pointing out that s 9 of that Code covered the use of portable ladders. He noted that, in accordance with the Code, ladders should meet the requirements of AS/NZS 1892, that domestic ladders should not be used and "only light duty work is undertaken while on the ladder where three points of contact can (sic) maintained and tools can be operated safely with one hand".

35 After a short discussion Dr Gibson concluded in his report, acknowledging the limitation of not having visited the workplace or seen the equipment, that the bar stool used by the plaintiff on 1 October 2004 was not an acceptable piece of equipment to enable him to carry out the task of changing a light globe, that the small step ladder used by the plaintiff while carrying out his normal duties was not suitable for the task and exposed him to risk of injury from a fall, that it did not meet the requirements of the relevant standard or the code of practice or good ergonomic practice generally. He concluded his report by expressing the opinion that the defendant could have reduced the risk of injury by providing a suitable step ladder, suggesting a particular make attainable at a cost of about $500.

36 Jennifer Miller noted in her first report that she had been requested by the defendant's solicitors to provide an opinion on the method of changing a light bulb. She had been provided with Dr Gibson's report. On 22 October 2008 she inspected the bar area at the Marracoonda Motel. She took photographs and included some of those in her report. They were very helpful. She was not able to inspect the ladder taken by the plaintiff to the bar on 1 October 2004. She was able to take measurements of the bar area.

37 Her opinion was that the task of changing a light fitting above the bar by kneeling on a bar stool pushed against the bar so it couldn't swivel posed little risk of knee injury. The plaintiff would have been, she said, kneeling on a padded surface for a very short period of time. The only potential risk factor would have been a fall from the stool. She thought that it was not a significant risk.

38 She concluded that there was little risk of knee injury from kneeling on a stable, padded surface for a short period of time to change a light fitting above the bar. She noted that the plaintiff could have used the ladder provided by the defendant and, in her opinion, he could have, standing on the bottom step, undertaken the task with very little risk of a fall. The plaintiff could have, in doing so, utilised three points of contact (two feet and one hand) while undertaking the one-handed task of removing and replacing a light fitting.

39 On 1 October 2004 the plaintiff was about 6 foot 1 inches (1854 mm) tall and weighed 89 kilograms. Ms Miller re-checked the distance from the floor to the ceiling in the bar area and concluded that it was 2.41 metres. The plaintiff told Dr Gibson that it was 2.45 metres. I accept Ms Miller's measurements because, as she said, she went back to the premises to check them. I accept also her other findings that the bar was 1.22 metres high and that, therefore, the distance from the bar to the ceiling was 1.19 metres. The light fitting to be replaced was recessed into the ceiling as depicted in the photographs in Ms Miller's report. It follows that the light fitting to be replaced was 2.41 metres above the floor.

40 The plaintiff took with him to the bar a bucket and a small ladder. He described the small ladder as being 80 to 83 centimetres high when opened. When placed, opened, beside the bar its top step would have been about 0.4 metre below the top of the bar. In cross-examination the plaintiff agreed that the three steps on that ladder were an equal distance apart such that the first step would have been about 27 centimetres above the ground, the second about 27 centimetres above the first and the third, top step being a further 27 centimetres distant above the second step.

41 On her first visit to the Marracoonda Motel bar area Ms Miller was shown a portable ladder and informed that it had been available to the plaintiff in October 2004. She described the ladder depicted in the photograph at p 9 of her report as an "Omega 5 platform single-sided step ladder" manufactured by Bailey. She noted that although it was a domestic rather than an industrial ladder, it had been manufactured in accordance with AS/NZS 1892.1 and was rated for a load of 100 kilograms.

42 In fact, the ladder depicted at p 9 of her report is not that which the plaintiff took to the bar on 1 October 2004. That is one of the ladders acquired by the plaintiff's successor, Mr Heathfield, during his term as the motel handyman. It is clear from his evidence that he disposed of both ladders available to the plaintiff.

43 Referring to the photograph of a person standing on a ladder with red trim at p 9 of Ms Miller's report, Mr Heathfield said that he had measured the height of the steps of the ladder depicted. The photograph depicts a man standing on the bottom step which, he said, was about 250 mm above the ground. The steps were each about 250 mm apart. The man depicted in the photographs at that page was 1.88 metres tall, about 26 mm taller than the plaintiff. Very clearly, while standing on the ladder fully extended and stable on the floor the man concerned had two feet on the bottom step and one hand, his right, on the right upright. With his left hand he was able to easily reach the light fitting without any obvious stretching.

44 Ms Miller's original report was dated 4 November 2008. She provided a supplementary report dated 21 November 2008 having been informed that the Bailey ladder with the red trim depicted in photographs mentioned above was not, in fact, available to the plaintiff in October 2004. It is apparent that she had been further informed that the larger of the two ladders available to the plaintiff was of similar construction to that depicted but without a platform. She was further informed that the ladder available to the plaintiff had hinged metal braces on both sides which were bent, making it difficult to open and close.

45 In her supplementary report Ms Miller included a photograph of a Bailey single-sided ladder without a platform which, she said, matched the description of the larger of the two ladders available to the plaintiff in 2004. If the ladder depicted in her supplementary report had been provided by the defendant to the plaintiff it would have been, she said, an industrial ladder with a load rating of between 120 and 150 kilograms. She concluded, based on the information that had been provided to her, that the taller ladder provided to the plaintiff "may have been an industrial ladder". Significantly, her view in par 6 of her supplementary report was as follows:

"I remain of the opinion that the defendant should have provided an industrial ladder, and maintained it in good condition."

46 The plea by the plaintiff is that both accidents resulted from the negligence of the defendant. In each case the plaintiff was an employee in the employ of the defendant. Given that relationship, the defendant owed the plaintiff certain duties. Generally, an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk or by the provision of adequate safeguards. An employer must also provide employees with suitable plant and equipment to enable them to carry out their work safely.

47 In the case of each accident complained of by the plaintiff, the first allegation of negligence levelled against the defendant is that it failed to provide him with appropriate equipment, specifically, an articulated ladder in the first accident and a chainsaw and trailer in the second. So far as the latter is concerned the plaintiff cast his net somewhat broadly, pleading that the defendant had failed to provide a safe system of work and a safe working environment.

48 In the case of the first accident the defendant's negligence was further particularised to allege a failure to provide the plaintiff with a workmate to assist in changing the light fitting, that it exposed the plaintiff to a risk of damage of which it knew or ought to have known, that it invited or required the plaintiff to perform work, the changing of the light fitting, that was dangerous or unsafe, that it failed to warn the plaintiff of the dangers associated with changing the light fitting and that it exposed the plaintiff to a risk of injury or damage of which it knew or ought to have known.

49 The plaintiff was at the time of each accident, employed in the capacity of generally handyman at a motel. As he said, he was required to perform, in that capacity, a variety of tasks which, quite clearly, included work indoors and outdoors. Not surprisingly, his work indoors included the task of changing light fittings and globes from time to time and his work outdoors included the task of removing branches from trees when they became a problem or a hazard. Each of those specific tasks may or may not be difficult or dangerous. The degree of difficulty or dangerousness in each case will depend surely upon the position of the light globe or fitting and the position and size of the branch to be removed, respectively.

50 In the case of the first accident the plaintiff was not, except in a very general sense, invited or required by the defendant to change the particular light fitting that he was attending to when he suffered injury. In evidence he outlined the system of work followed by him on a daily basis. There was, at reception, a maintenance book. In the day-to-day operation of the motel maintenance tasks such as leaking taps and the need to change light globes or fittings, arose. Those items were entered into the maintenance book. It was the plaintiff's daily habit to check the maintenance book at reception each morning at the beginning of his daily work. Those items which he considered to be urgent were given priority. There was no evidence that the defendant or its servants or agents were involved in the task of prioritising the maintenance list on any given day. My understanding is that the plaintiff, having considered the additions to the maintenance list, used his judgment in prioritising the work to be done first that day. I imagine that, given that the workplace was a motel, the needs and safety of the guests were something of a priority.

51 It does seem to me that the task of changing a light globe or fitting is not normally, of itself, a dangerous or unsafe one. Such a task would not normally involve more than one person. There was certainly no evidence to suggest a need for a workmate. In expecting the plaintiff to change light bulbs or fittings from time to time the defendant did not expose him to a risk of damage or injury. Nor did it invite or require the plaintiff to perform work that was inherently dangerous or unsafe. It follows that the defendant did not fail to warn the plaintiff of damages associated with that particular task because, generally speaking, there were none. I conclude that the task of changing a light globe or fitting not, of itself, being an inherently dangerous or difficult task, may become so by reason of the use of any equipment that might be needed to undertake the task. Clearly, the changing of a light globe or fitting in, for example, a bedside lamp is a simple, everyday task, undertaken without the use of any equipment other than the replacement fitting. The position of the light fitting or globe, therefore, determines the need for the use of additional equipment.

52 In the case of the task which confronted the plaintiff, that of changing the light fitting in the ceiling above the bar, there was a clear need for him to use a ladder because, standing on the floor, he could not reach the ceiling. He had available to him two ladders. The task in the bar was familiar to him, he having dealt with it on previous occasions. Knowing the position of the light fittings in the ceiling of the bar he left the workshop taking with him the smaller of the two ladders, not for the task of changing the light fitting in the bar but for the purpose of undertaking the remaining tasks to be completed by him during the course of his working day. He had already determined, from previous experience, that it was not appropriate to use the smaller of the two ladders. He had the taller ladder which, although slightly damaged in terms of its bent braces was, nevertheless, a functioning ladder used by him, from time to time, to clean gutters and to attend to overhead fans in guest rooms. He regarded that ladder as being too awkward and too heavy to be carried around by him as part of his daily routine.

53 Clearly, on the evidence, the plaintiff chose not to use the smaller of the two ladders, which he had with him, because of his experience of undertaking that particular task in the past and his conclusion that it was unsuitable for the purpose. He chose not to walk the 2 minutes back to the workshop to obtain the taller of the two ladders available to him so that it might be used instead. He adopted a method that he had used in undertaking that task on a previous occasion. The method that he adopted was one, according to Ms Miller, which posed little risk of knee injury given that the plaintiff, in undertaking the task, was kneeling with both knees on a padded surface for only a very short period of time.

54 There is evidence, albeit somewhat tenuous, to the effect that the smaller of the two ladders available to the plaintiff did not comply with relevant Australian Standards. I say "tenuous" because the ladder itself is no longer available. The only description of it at trial and to Dr Gibson was that provided by the plaintiff. In any event, the plaintiff chose not to use that ladder. The alternative ladder was non-compliant with relevant standards and codes by reason of its braces being slightly bent.

55 Specifically, the plaintiff pleads that he was not provided with appropriate equipment in the form of an "articulated ladder". There was no mention, during the course of the trial, of that phrase. I am uncertain as to what it means.

56 Suffice it to say that the question of liability in accordance with the plaintiff's pleading is reduced to one allegation of negligence, that being whether he was provided with a ladder appropriate to the task which gave rise to the injury.

57 In Neindorf v Junkovic [2005] HCA 75 Kirby J at [56] said:

"Generally speaking, each of the constituent elements of the tort of negligence - duty, breach and damage - considered seriatim, progressively increases the specificity of the enquiry into how the incident occurred and the way in which damage was sustained. The broadest and most general level of analysis occurs at the duty stage. Here, the enquiry is primarily concerned with whether injury to the plaintiff or a class of persons to whom the plaintiff belongs, was reasonably foreseeable. With respect to the breach element, the enquiry is directed, in part, to whether a reasonable person in the defendant's position would have foreseen the risk of injury to the plaintiff. Finally, the damage element is the most specific. The issue here is whether the damage sustained as a result of the breach of duty was of a kind which was reasonably foreseeable. Attempts to force more content into the duty element, by defining the obligation created with greater specificity, turns the traditional analysis of the tort of negligence on its head. It blurs the distinction between its constituent elements. It may also lead to the decision as to breach being pre-empted. This Court should avoid such an error."

58 The relevant duty in the present case may more generally be described as a duty to provide a safe system of work. That duty incorporates a requirement that an employer provide its employee with equipment appropriate to the tasks that the employer requires the employee to undertake. Given the plaintiff's role of general handyman the duty required the defendant to provide the plaintiff with a range of equipment and tools appropriate to the variety of tasks that he might be required to undertake in discharging his duties. As mentioned, his duties comprised a wide variety of tasks including gardening, cleaning and what might be required by way of general maintenance. The latter would incorporate the need to replace consumables from time to time. Light fittings are consumables in the sense that they need to be replaced from time to time having a finite functional life. Given the variety of tasks required of the plaintiff I would expect that discharge of the duty would require that he be provided with more than one ladder, at least one larger and one smaller. The ladders should have been in compliance with the relevant Australian Standard AS/NZS 1982.1. On the evidence available to me it seems that neither ladder available to the plaintiff was compliant with that standard.

59 I conclude that the duty of care owed by the defendant to the plaintiff as described above existed. I conclude that the defendant was in breach of that duty in failing to provide ladders that were appropriate to the varied tasks required of the defendant. On the evidence of Ms Miller it seems that in order that the plaintiff be properly equipped for the varied tasks faced by him in his day-to-day work he should have been provided, not only with larger and smaller ladders compliant with relevant standards and codes, there should also have been a ladder of the type depicted at p 9 of her first report being the ladder manufactured by Bailey described by her as an "Omega 5 platform single-sided step ladder" which, she said, had been manufactured in accordance with the relevant standard and had a load rating of 100 kg. I infer that, had such a ladder been available, it would have been sufficiently light to be carried by the plaintiff without difficulty in the course of his tasks around the motel, sufficiently small to have been manoeuvred in the course of undertaking those tasks without difficulty and compliant, in terms of work practices, in that it would afford the necessary three points of contact, as depicted in the photographs at p 9 of Ms Miller's first report.

60 Did the breach cause the injury? Was the risk of injury or damage "reasonably foreseeable"? Counsel for the plaintiff refers to Hughes v Lord Advocate [1963] UKHL 1; [1963] AC 837 in support of the proposition that the kind of damage must be foreseeable, not necessarily the actual damage or its extent. In that case workers dug a manhole in a public street. They left the site after securing the manhole and placing paraffin lamps around it as a warning. Two young boys caused a paraffin lamp to fall into the hole, resulting in an explosion. One of the boys fell into the manhole and suffered severe burns. The House of Lords decided that a child being injured by falling in the hole or being burnt by a lamp was a foreseeable risk. Although the explosion was unforeseeable, the injury fell within the kind of injury that could be foreseen even though the severity was unexpected.

61 In the matter before me the type of injury suffered by the plaintiff, being an injury to the knee, does fall within the category of the kind of injury that might be suffered as the result of the use of an inappropriate ladder. Dr Gibson noted in his report that falls and over-exertion injuries from the use of ladders are well known occupational accidents. He noted that a fall from even a low step ladder is dangerous because of the chance that the person may strike a hard or sharp object as they fall. In my view, the type of injury which the plaintiff did suffer in the first accident fell into a category of injury that was foreseeable in the event of he undertaking a task requiring the use of a ladder and falling from it.

62 In the plaintiff's case he did undertake a task requiring the use of a ladder but elected not to use one. In fact, he did not fall. There is no medical evidence as to the mechanism of the injury but I may infer that it was in the nature of an over-exertion injury brought about by the plaintiff leaning slightly to one side in order to insert the light fitting into its socket while kneeling on the apparently stable platform of the bar stool with both knees. In those circumstances I must ask whether the injury suffered by the plaintiff is causally related to the defendant's breach in failing to provide him with appropriate ladders. Mr Heathfield said that he had used the larger of the two ladders in the bar. He described opening it up and putting it against the bar sideways. He was referred to the photographs at p 9 of Ms Miller's report and said that he would have adopted the same approach, albeit reversed, because he was right-handed and would have used his right hand to insert the light fitting. The man depicted in the photographs was using his left hand for that purpose. He was, he said, about 6 feet 2 inches high. He recognised Exhibit 2 as being the type of light fitting that required replacement in the bar from time to time. He had undertaken that task using the larger of the two ladders standing on either the first or second step, probably the second. His complaint about that ladder was that it was old and heavy but he did say that it was stable, adding that had it not been he would not have used it for that task.

63 The use of a step ladder enables the task to be undertaken by a person standing upright on a step. The use of a larger ladder would have enabled the person undertaking the task to have three points of contact, two feet on a step and one hand on the upright of the ladder while inserting the fitting with the other. Being adjacent and sideways to the bar, there was some lateral support to the ladder which might accommodate the need to lean to one side, described by the plaintiff. The injury suffered by the plaintiff to his knee came about as he knelt on the bar stool with both knees together in the course of undertaking the task of changing the light fitting. He chose not to have resort to the larger ladder that was available to him but rather to adopt a method of undertaking the task which he had found, in the past, safe and suitable. In doing so, he saw no need to resort to the larger of the two ladders available to him. His reason for not doing so related more to his reluctance to take it on his rounds in the course of his daily work because, firstly, of its weight and, secondly, of its awkwardness if he was required to use it in a guest room or other confined spaces. He certainly was required to work in guest rooms from time to time. The bar was not a confined space.

64 There is no evidence that the defendant knew that the plaintiff would undertake that particular task in the manner in which he did. He certainly was required to undertake such tasks. He adopted a novel approach to the task for his own reasons.

65 In my view, it was foreseeable that the plaintiff, not having a ladder appropriate to the task, would attempt to undertake the task of changing the light fitting in the bar without the use of a ladder. The novel method adopted by the plaintiff was itself, in my view, not foreseeable by the defendant but the injury to the knee, was causally related to the plaintiff's breach of its duty to provide the defendant with a safe system of work and equipment appropriate to the tasks that he was required to undertake. That is because it was foreseeable that the plaintiff might, in the absence of appropriate equipment, attempt to undertake the task by some alternative method. I therefore find that the defendant is liable in damages for the first accident.

66 By its amended defence the plaintiff pleads that, if the defendant is liable to the plaintiff with respect to the first accident, his injuries were caused or contributed to by his own negligence. By way of particulars, the defendant pleads that the plaintiff was negligent in that he used a bar stool to change a light globe instead of using the ladder that was provided by the defendant for the task and failed to take any or any reasonable care for his own safety and health in doing so.

67 The situation in which the plaintiff found himself when about to undertake the task of replacing the light fitting in the bar was that, of the two ladders available to him, the smaller was too small and did not afford three points of contact and the larger was too heavy and too awkward to use. It could not be said that the plaintiff was negligent in failing to use the smaller of the two ladders for the task to be undertaken. What is suggested is that he was negligent in failing to use the larger of the two ladders. I have, however, found that the larger of the two ladders was not only heavy and awkward to use (that being the substance of the plaintiff's complaint about it) but also that it did not comply with relevant standards or codes, it being slightly damaged. I find that neither of the two ladders available to the plaintiff were appropriate to the task which confronted him. As such, it was not surprising that he, in those circumstances, attempted to undertake that task in a novel way. It is said that, in doing so, he failed to take any or any reasonable care for his own safety and health. The opinion of Ms Miller was that there was little risk of knee injury in kneeling on a stable, padded surface for a short period of time to change a light fitting above the bar. In fact, it is clear that the plaintiff thought that he was adopting a relatively stable method of undertaking the task. What he did do, in doing so, was place the burden of his body weight on his knees while attempting to undertake a task above his head. In those circumstances, he suffered a knee injury. I conclude that, had he been provided with a ladder appropriate to the task, he would have undertaken the task standing upright on a step of the ladder and not subjecting his knees to the load that they were subjected to. Without doubt an employee is bound to exercise reasonable care for his or her own safety. So far as the plaintiff was concerned, he thought that he was, in using the bar stool, adopting a fairly safe method. As it happened, in doing so, he suffered an injury. In my view, the plaintiff was not negligent. Rather, he was responding to the need to complete a task in circumstances where the equipment available to him was not appropriate to the task. In those circumstances he did not contribute to his own injury.

68 The only witness to give evidence in relation to the second accident was the plaintiff. He said that on 21 April 2005 he and an assistant, Darren Woodnock, had the task of cutting a branch off a eucalyptus tree which was extending over the driveway and was a hazard. They proposed to cut the branch off at the trunk allowing it to fall onto the ground. It was about 1.6 or 1.7 metres off the ground. In cross-examination the plaintiff agreed that it was, at the trunk, about 20 centimetres in diameter and about 3 ½ to 4 metres long. He and his workmate used an ordinary carpenter's saw, taking it in turns to complete the task of severing the branch. They did that successfully. The branch fell to the roadway beneath. It was then an obstruction on the roadway. Rather than attempt to saw it into smaller pieces while it lay on the roadway a decision was made to drag it off the roadway onto the garden nearby where it might later then be cut into smaller pieces.

69 When asked in cross-examination why they didn't cut the branch into smaller pieces before moving it the plaintiff replied:

"Because it was sticking out on the road - onto the driveway and we weren't going to do it that particular day, we had other things to do so we said 'we'll get it out of the way and come back to it when we - in due'."

70 The plaintiff then explained that there was no time to undertake the task of further cutting up the branch as there were other things to be done at the motel. Counsel for the defendant asked:

"Are you seriously telling me that you couldn't spend the time it took to cut the branch in half again?"

72 It was put to the plaintiff that he had, at his disposal, the means of cutting the branch in half in the form of the carpenter's saw used to severe the branch from the trunk. He replied:

"It took us about half an hour to cut through that one bit. I wasn't prepared to use a handsaw again to cut through it then and there. I was permitted to do that - allocate that to Darren when he was younger and stronger, to come back to him when had time to do it when I allocated a time for him."

73 Mr Heathfield, the plaintiff's successor in the role of handyman at the Marracoonda Motel, said in cross-examination that he was not provided with a chainsaw by his employer. He said that he didn't use one and that one had to be trained to use a chainsaw.

74 What is alleged by way of pleading? There is effectively an allegation that the defendant failed to provide the plaintiff with a safe system of work and a safe working environment in that it failed to provide the plaintiff with a chainsaw and trailer. There can be no doubt that a chainsaw would have made the task of cutting the branch from the trunk easier and quicker. The plaintiff's injury did not arise from the severing of the branch from the trunk of the tree. It occurred when the plaintiff and his co-worker were attempting to drag the branch from the roadway to a garden nearby. The plaintiff appears to have been in charge. He decided that there were things to be done in the course of their day's work that were more important than cutting up the severed branch. He decided, therefore, that they should move it off the roadway and return to that task at some later stage. The plaintiff had with him his co-worker and the saw used to severe the branch from the trunk. It had been effective for that purpose. It could have been used to cut the branch into smaller pieces while it lay on the roadway. The smaller pieces would, I assume, have been lighter and might well have been moved easily off the roadway. The plaintiff could have asked his younger offsider to undertake the task of further cutting the branch. He chose not to do so.

75 Clearly, an employer owes to an employee a duty to provide a safe system of work which includes, as already mentioned in relation to the first accident, an obligation to provide proper equipment to undertake the varied tasks required of the employee. There was very little reference, in the evidence, to the need for a trailer. The evidence did not demonstrate the necessity for a trailer.

76 The clear submission, on behalf of the plaintiff, is that the failure to provide a chainsaw was a breach of the defendant's duty to the plaintiff. As suggested by Mr Heathfield, a chainsaw can be a dangerous instrument. A prudent employer, if providing an employee with a chainsaw should also provide training in its use. A chainsaw is, after all, a power tool with a chain metal blade moving at high speed when in operation. I do not regard the failure to provide the plaintiff with such an instrument as being a breach by the defendant of its obligation to provide him with either a safe system of work or a safe working environment. The task to be undertaken was the severing of the branch from the trunk of the tree and its removal from the roadway. The first part was successfully achieved with a handsaw and the two men taking turns. It took some time. Rather than take further time to severe the fallen branch into two lighter pieces before removing it from the roadway the plaintiff elected that the two of them should drag it from the roadway. As they did so the plaintiff suffered an injury.

77 The content of the duty owed by the defendant to the plaintiff could not, in my view, be extended to include an obligation on the part of the defendant to provide the plaintiff with a chainsaw. The obligation upon the defendant is to provide both a safe system of work and a safe working environment. There was no evidence that the many tasks undertaken by the plaintiff called for the use of a chainsaw in particular. The particular task undertaken by the plaintiff was undertaken effectively with a handsaw. That saw could have been employed safely to cut the branch into two lighter pieces. It is not appropriate to define the extent of the employer's duty by reference to this one incident. In my view the discharge of the defendant's obligation to provide the plaintiff with a safe system of work or a safe working environment did not involve an obligation on the part of the defendant to provide the plaintiff with an inherently dangerous power tool. I find against the plaintiff in relation to the second accident.

VLAHOS -v- JASMINA INVESTMENTS PTY LTD [2008] WADC 181 (22 December 2008)

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VLAHOS -v- JASMINA INVESTMENTS PTY LTD [2008] WADC 181 (22 December 2008)