Bleathman v Peterson's Industrial Paint Services Pty Ltd & Ors

[2002] TASSC 99

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Appeal and New Trial - Appeal - General principles - Interference with discretion of court below - Particular cases - Other matters - Apportionment of liability - In general.

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Smith v McIntyre [1958] Tas SR 36; Tamar Park Pty Ltd v Smith [1999] TASSC 16; Lowe v Menzie [2000] TASSC 132, followed.

Employment Law - The contract of service and rights, duties and liabilities as between employer and employee - Liability of employer for injury to employee at common law - Supervision and instruction - Experienced worker - Dogman not instructed to use tag line.

O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225, referred to.

Torts - Negligence - Contributory negligence - Particular cases - Other cases - Negligent driving of mobile crane - Failure of dogman to use tag line.

First Respondent FCA 106/2001: S P Estcourt QC and I L Hallett

Second Respondent FCA 106/2001: W A Ayliffe and M A Nettlefold

Appellant FCA 107/2001: W A Ayliffe and M A Nettlefold

First Respondent FCA 107/2001: S P Estcourt QC and I L Hallett

Second and Third Respondents FCA 107/2001: K B Procter SC

Second Respondent FCA 106/2001: Ayliffe & Ayliffe

Second and Third Respondents FCA 107/2001: Murdoch Clarke

Judgment Number: [2002] TASSC 99

GARRY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

v PETERSON'S INDUSTRIAL PAINT SERVICES PTY LTD,

GARY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

GARRY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

v PETERSON'S INDUSTRIAL PAINT SERVICES PTY LTD,

GARY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

1 I respectfully agree with the conclusion of Blow J and his Honour's reasons in reaching that conclusion, that both appeals should be dismissed.

GARRY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

GARY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

2 I agree with Blow J's reasons for judgment and the orders he proposes.

GARRY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

v PETERSON'S INDUSTRIAL PAINT SERVICES PTY LTD,

GARY WILLIAMS and HIGHRIG CONSTRUCTIONS PTY LTD

3 These two appeals arise from the trial of an action for damages for personal injuries. The plaintiff (Mr Bleathman) sued his employer (Peterson's Industrial Paint Services Pty Ltd), a crane driver (Mr Williams), and a crane hire company (Highrig Constructions Pty Ltd, the employer of the crane driver). The learned trial judge found that the employer was not liable to the plaintiff for damages for negligence, but that the crane driver and the crane hire company were so liable. His Honour found that there had been contributory negligence on the part of the plaintiff, and reduced his damages by 20 per cent as a result. The crane driver and the crane hire company had sought contribution from the employer, but that claim was dismissed as a result of the conclusion that the employer was not liable. The crane driver and the crane hire company have appealed, contending that the employer was liable for damages for negligence, and that they should recover contribution from the employer. The plaintiff has appealed, contending that there should not have been any reduction in his damages on the basis of contributory negligence. The assessment of the plaintiff's damages has not been challenged in either appeal.

4 The plaintiff was an experienced rigger and dogman. The employer carried on business as a paint manufacturer. It had decided to demolish some sheds. Demolishing sheds was not a routine part of its business. For the purposes of its demolition project, it employed the plaintiff on a casual basis, and contracted with the crane hire company for the provision of a mobile crane and a crane driver. The employer decided to retain a number of steel beams that had been vertical supports in one of the sheds that were being demolished. It decided to store these beams on another part of its premises. The plaintiff and the crane driver were required to move the beams to their storage position, using the hired crane. The beams were suspended from the end of the crane's jib. The crane driver drove the crane from the demolition site towards the storage site with the beams hanging in front of the crane, parallel with its front bumper. The plaintiff walked with the beams, maintaining a position at the right hand end of them. They proceeded along a street in this way, and turned to pass through a gateway in order to return to the employer's premises. Because the beams were about as long as the gateway was wide, the plaintiff slewed the beams, so that they were at an angle of about 45 degrees to the crane's front bumper, with the right hand end of the beams forward of the front of the jib. That is to say, he rotated the beams anticlockwise through about 45 degrees. After the crane had passed through the gateway, the plaintiff decided to return the beams to their original position, parallel with the front bumper, and began to rotate them for that purpose. The learned trial judge found that he rotated them clockwise, and no challenge has been made to that finding in either appeal. The crane had travelled over some uneven ground after passing through the gateway. The beams had begun swinging in some sort of pendulum motion. They were very heavy, and the plaintiff found them difficult to control. The beams passed through a position parallel with the front bumper, and continued to rotate clockwise, with the plaintiff trying to stabilise them. He maintained a position at the right hand end of the beams, between them and the front bumper, with his back to the crane, as they rotated clockwise. The crane driver did not stop the crane. When the plaintiff neared the front bumper of the crane, its front right wheel crushed his right foot, driving it into the ground. The plaintiff still had his back to the crane, but was facing to the right of the crane. The crane driver did not realise that the crane had collided with the plaintiff until the plaintiff told him he had run over his foot. The learned trial judge found that the crane driver was negligent in failing to keep a proper lookout; failing to stop, slow down or manoeuvre the crane so as to avoid running over the plaintiff's foot; failing to pay sufficient attention to the location and safety of the plaintiff; and failing to stop accelerating when the load being carried by the crane became unsteady. No challenge was made to those findings in either appeal. The crane hire company was of course vicariously liable for the negligence of the crane driver.

The first appeal - was the employer liable?

5 The crane driver and the crane hire company contended that the employer was negligent on the basis that its duty to provide the plaintiff with a safe system of work required it to insist that he use a "tag line" to control the movement of the beams. No other allegation of negligence was relied upon in this appeal. A tag line is a rope. The crane driver gave evidence, which the learned trial judge accepted, that tag lines had been used earlier during the course of demolition, and that they were kept in a tool box fixed to the crane. If the plaintiff had used a tag line, affixed at or near the right hand end of the beams, for the purpose of controlling their movement, he would not have positioned himself between them and the front of the crane as they rotated clockwise with their right hand end nearing the crane's front right wheel. Instead of pushing against the rotating beams with the crane behind him, the plaintiff could have pulled the tag line, either from a position well forward of the crane, or from a position to the right of its intended line of travel. The learned trial judge made a finding, not challenged in this appeal, that "Had a tag line been used, the plaintiff would not have been as close to the crane as he was and would not have had his body between the wheel and the beams". On the hearing of this appeal, the employer did not dispute these factual matters, but contended that, given the circumstances, its duty of care did not require it to insist on the use of a tag line by the plaintiff.

6 It is fundamental that "an employer has a personal, non-delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk": Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 per Murphy J at 689. That duty requires an employer to give an employee directions in the performance of his or her work "where directions might reasonably be thought to be required to secure him [or her] from danger of injury": Kondis (supra) per Mason J at 689. The standard of care expected of an employer requires account to be taken of the possibility of inadvertent and negligent conduct on the part of employees and others: McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312; Zerk v Finemores Transport (Qld) Pty Ltd [1994] SASC 4531; (1992) 62 SASR 333 at 341.

7 The employer's duty of care "is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear": Kondis (supra) per Deane J at 694. However an employer will be liable for damages for negligence only if a reasonable employer similarly circumstanced would have taken some step or steps that would have obviated the risk of injury. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48, Mason J (with whose reasons Stephen and Aickin JJ agreed) said the following:

"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."

8 Mr Procter SC submitted to the effect that the management of the employer company, to whom it must have been apparent that loads were going to be moved over distances by crane, should have made enquiries as to the system intended to be adopted; that it could have established from the crane driver or the manager of the crane hire company, a Mr Davies, what a safe system was; and that either of them would have said that a tag line was a usual thing to use. He submitted that the duty of care was not discharged, in that the employer's management took no interest in the system to be adopted, instead leaving it to the crane company and the plaintiff to devise a system, the result being that they came up with an unsafe one. He submitted that the employer's duty to provide a safe system was thus not discharged.

9 It is true that the employer did little by way of discharging its duty of care. However it engaged the crane company to supply a suitable crane and a suitable driver. The equipment provided by the crane company included not only a crane but also the contents of the tool box affixed to it, which included a tag line. The making available of a tag line for use by the plaintiff made his system of work safe. The employer might have done too little by way of ensuring that the system was safe, but that was inconsequential because the system of work was in fact safe.

10 Given that the employer was a paint company not routinely engaged in demolition, that the plaintiff was an experienced rigger and dogman, and that he was required to undertake a variety of tasks in relation to the demolition job, I do not think a reasonable employer similarly circumstanced would have engaged a consultant to advise as to the minimisation of safety risks associated with the plaintiff's various tasks, nor undertaken detailed supervision of his work for the purpose of ensuring his safety, nor even made enquiries of the crane company's personnel about matters of detail relevant to the plaintiff's safety. As an experienced rigger and dogman, he was in a better position than his employer's management to assess the risks inherent in the transportation task, and to decide whether to use a tag line. It was therefore quite appropriate for the employer to leave any decision on such a matter of detail entirely to him. The evidence did not reveal any basis for a suspicion that the plaintiff needed watching to a greater extent than an average worker doing his job.

11 The plaintiff was in a similar situation to the employee with whom the High Court was concerned in O'Connor v Commissioner for Government Transport [1954] HCA 11; (1954) 100 CLR 225. That employee was an experienced plumber who was required to modify an awning that extended over a footpath. The awning was incapable of bearing his weight. He went onto it, it collapsed, and he was killed. The High Court held that the employer had not been negligent, saying the following at 229:

"The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury.

But the party was provided with trestles and plank and nothing was wanting in tools or equipment. The deceased was experienced in his work. It was obvious that a question must exist whether the awning would bear his weight. The party sent down was as 'expert' or competent to judge of that simple subject as anybody that could reasonably be sent."

12 Whilst an employer has a duty to give an employee instructions or directions in the performance of his or her work where instructions or directions might reasonably thought to be required, I think in this case that an instruction or direction to use a tag line was not one that the employer ought reasonably to have thought to be required. For these reasons, I think the employer did not breach its duty of care by failing to give such an instruction, and that the first appeal should therefore be dismissed.

The second appeal - contributory negligence

13 Mr Ayliffe submitted that it was not open to the learned trial judge to have made a finding of contributory negligence and, alternatively, that a reduction of the plaintiff's damages of 20 per cent as a result of contributory negligence was too great.

14 The learned trial judge made findings that the following particulars of contributory negligence were established:

"(a) As an experienced Dogman [the plaintiff] failed to insist that the load was connected to a tail rope to steady the load and to enable the plaintiff to stand at a safe distance from the crane."

"(c) [The plaintiff] failed to keep a proper look out."

"(h) [The plaintiff] placed his body between the steel beams and the crane when the steel beams were being transported."

"(i) [The plaintiff] placed his body in close proximity to the crane wheels while the steel beams were being transported."

15 Mr Ayliffe submitted that no finding of contributory negligence was available on the evidence on the bases that (a) in getting in the way of the crane, or failing to get out of its way, the plaintiff was guilty only of misjudgment or inadvertence, as distinct from negligence; and (b) that the evidence was such that it was not reasonably open to the learned trial judge to make a finding that the plaintiff was negligent in failing to use a tag line. I will deal first with the question of the tag line.

16 The crane driver gave evidence that different riggers had different practices in relation to tag lines - that some riggers will tie the load onto the front of the crane, and that some riggers will tie a rope onto the load and walk with it. When asked whether he gave any consideration to using ropes before setting out to drive along the street, he said "it seemed funny not to tie it off". The manager of the crane company, Mr Davies, gave evidence that a tag line is normally attached to the load to keep personnel that are working close to the area of the load at bay. He said the load can be guided and steadied with a tag line. He gave a number of examples of the advantages of the tag line:

"... if anything should happen to slip, your fingers don't come in between the items that you are carrying ... Or, you don't get pinned. You've got a barrier that's in between you and the vehicle or wall or fence - obstruction to keep you free away from the load itself."

He was asked what, in his experience, was the usual thing for a dogman to do if he was using such a line and for some reason the load became difficult for him to control. He replied, "Well if you can't physically restrain the load for any particular reason you would normally step back, let the tag line go, and tell the crane driver to stop".

17 The plaintiff gave evidence that he had never used a tag line when moving a load like the one in question with a mobile crane; that he had never been instructed to use a tag line in such a situation; that a tag line would not have helped in the circumstances when the load became unstable; that a tag line would probably have pulled him over because of the momentum of the moving load; and that a tag line would probably have pulled him wherever the load went. He conceded however that, if he had been standing up the front with a rope and felt there was any problem at all with controlling the load, he would have been in a perfect position to signal the driver to stop.

18 That being the state of the evidence, it was open to the learned trial judge to accept the relevant evidence of the crane driver and Mr Davies, and to reject the plaintiff's evidence to the effect that using a tag line would have been ineffective. That is what his Honour did. It was open to him to make his finding that "Had a tag line been used, the plaintiff would not have been as close to the crane as he was and would not have had his body between the wheel and the beams". It was open to him to find that particular (a), quoted above, was made out. His Honour had the advantage of seeing the plaintiff, the crane driver, and Mr Davies in the witness box. His acceptance of the evidence of Mr Davies and the crane driver should not, in my view, be disturbed.

19 Mr Ayliffe submitted that it was the case of all parties that the beams needed to be manoeuvred by hand to fit through the gate. He relied for that submission on two passages in the evidence of the crane driver. In the first of those passages, when asked what the plaintiff used to turn the load prior to passing through the gateway, the crane driver replied, "He - you use your hand, you turn it by hand". However he was only asked what the plaintiff had in fact done, and the plaintiff was not using a tag line. Further, his answer related only to the initiation of the turning of the load, and not to the appropriate means for bringing a turning load to a standstill. In the second passage relied upon, the crane driver said, "I can only tell you, through my experience, as how you get steel through a gate. ... That's all I can tell you. ... There's only one way to do it". Plainly, the witness was saying that turning the load is the only way to get such a load through a gateway. He was not saying in either of the passages relied upon that manual handling, without the use of a tag line, was the only way to control a load in such a situation.

20 Mr Ayliffe drew our attention to a finding by the learned trial judge that the crane driver "was the operator and had control over the methodology to be used". However the crane driver was not the only individual who decided to proceed without a tag line being used. He left it to the plaintiff to decide whether to use one, and the plaintiff proceeded without even looking for one. Mr Ayliffe drew our attention to the finding that the crane driver was the driver of a large, inherently dangerous crane, and that the failure to use a tag line did not absolve the crane driver of responsibility. However those findings do not impinge upon the learned trial judge's conclusion that, "given that the two men worked as a team, some portion of responsibility ought be attributed to the plaintiff". Mr Ayliffe also reminded us that Mr Davies had not been present, that the crane driver did not say a tag line should have been used, that the plaintiff's evidence that he had never used a tag line in such a situation went unchallenged, that the plaintiff was accepted as an honest witness, and that no expert witness was called to give evidence about tag lines. Those things are all really beside the point. It was open to the learned trial judge, on the basis of the evidence of Mr Davies and the crane driver, referred to above, to find that a tag line should have been used. Further, such a finding accords with common sense. If the plaintiff had attempted to stop the load rotating by using a tag line from a position somewhere forward of the right hand end of the load, he could not have got caught between the load and the crane, and he would not have been injured.

21 I turn to the question of whether the plaintiff was negligent in failing to keep a proper lookout, and in placing his body between the load and the crane, or close to the wheels of the crane. He was in a difficult situation. The beams were both swaying and rotating. He was using a lot of force to try to stabilise them and control them, and having little or no success. He was making judgments in the agony of the moment, in a stressful situation. He apparently perceived some risk of the load colliding with the crane's bumper, and it was not the done thing to let that happen. Because he was attempting to stop the clockwise rotation of the beams from a position at their right hand end, he had his back to the crane. He needed to be alert to the position of the crane behind him, and to get out to his right before getting trapped between the beams and the crane, and to make sure he was not hit by the swaying beams. When a tribunal of fact needs to decide whether a plaintiff is guilty of contributory negligence, as distinct from mere misjudgment or inadvertence, it is necessary to take into account such things as the urgency of the plaintiff's task, and the plaintiff's preoccupation with the matter in hand; Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37; McLean v Tedman (supra) at 315. However the plaintiff knew the crane was advancing behind him, knew the load was forcing him back towards it, was able to escape to his right, and was able to observe the movements of the load so as to judge when it would be safe to move to his right without being struck by the load. He apparently made no attempt to escape to his right. He apparently did not know quite where the crane was until it met his foot. In moving ever closer to the crane without escaping to his right, and in failing to keep a proper lookout for the crane, I think his failure to take care for his own safety was so gross that it must be regarded as negligence, as distinct from mere inadvertence, inattention or misjudgment.

22 For these reasons, I think the learned trial judge was right to find that there was contributory negligence on the part of the plaintiff, and that all the particulars of contributory negligence quoted above were made out. I turn to the question of apportionment.

23 The appellate review of an apportionment of damages for contributory negligence involves the review of a discretionary decision, and is analogous to the review of an assessment of damages or a sentence: Tamar Park Pty Ltd v Smith [1999] TASSC 16 at par47; Lowe v Menzie [2000] TASSC 132 at par16. In Smith v McIntyre [1958] Tas SR 36 at 51, the Full Court took the view that, once it reached a conclusion that it was open to a trial judge upon his findings of specific facts to hold that the greatest share of responsibility must be taken to lie with one party, the Full Court should not attempt to review the precise apportionment of damages. Further, the learned trial judge's determination as to what reduction of the plaintiff's damages was just and equitable was a discretionary decision whose review is restricted by the Supreme Court Civil Procedure Act 1932, s45(1), which reads as follows:

"45 - (1) A Full Court, on the hearing of any appeal from any judgment, order, or other determination (whether final or otherwise) of a judge, shall not reverse or vary any adjudication of the judge which is, or purports to be, only the exercise of a discretion which the judge was entitled by law to exercise, unless it appears to the Full Court that -

(a) the judge has, in fact, declined or failed to exercise the discretion;

(b) the judge has proceeded on a wrong principle or otherwise contrary to law, or on irrelevant or insufficient materials, or has misapprehended the facts or has failed to consider any material fact;

(c) the adjudication is founded wholly or in part on an erroneous finding of fact or an erroneous determination in point of law; or

(d) by reason of further evidence received by the Full Court in exercise of the powers conferred by section 48, or some special circumstance, the adjudication should be reversed or varied."

24 Mr Ayliffe submitted that a reduction of 20 per cent was too great, given that (i) neither the crane driver nor the employer had specified a different system of work; (ii) the chain of command was weak or non-existent; (iii) the transportation task was being undertaken by an ad hoc workforce without supervision; (iv) the plaintiff had not used tag lines in such a situation before; (v) there was a blatant failure on the part of the crane driver to keep a proper lookout; and (vi) the plaintiff was acting in the agony of the moment. He referred us to Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 and Liftronic Pty Ltd v Unver (2001) 75 ALJR 867, in each of which the High Court held that it had been appropriate for a jury to reduce a plaintiff's damages by over 50 per cent (90 per cent in Podrebersek; 60 per cent in Liftronic). However he failed to identify any error of a sort that would warrant appellate intervention in the exercise of a judicial discretion. It may be that the learned trial judge erred in saying that the point of impact was 20 metres from the kerb, given that it was an agreed fact the gateway was 4.1 metres from the kerb, and that the distance from the kerb to the point of impact was variously estimated at 10 metres, 11 metres, and 10 to 15 metres. However any mistake as to the distance from the kerb to the point of impact was not, in my view, of any significance in relation to the question of apportionment.

25 The plaintiff was negligent in failing to use a tag line, and in failing to extricate himself from a situation of his own making. I think it would have been open to the learned trial judge to reduce his damages by somewhat more than 20 per cent, even though he also had to take into account the gross negligence of the crane driver in failing to keep a proper lookout, and in failing to stop the crane before it collided with the plaintiff's foot. However, in my view the reduction of 20 per cent was unimpeachable.