Negligence - Damages - Provisional assessment of damages - Employee or independent contractor - Duty to take reasonable care - Roof plumber injured in fall from ladder - Reasonably foreseeable - Preference of one account of conversation to another - Contradictory evidence

Agbaba v Witter (1977) 51 ALJR 503

Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; (1985) 59 ALJR 842

Calder v Boyne Smelters Ltd [1991] 1 Qd R 325

Climaze Holdings Pty Ltd v Dyson (1995) 13 WAR 487

Commissioner for Railways v Halley (1978) 20 ALR 409

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Gamser v Nominal Defendant [1977] HCA 7; (1977) 136 CLR 145

Lloyd v Faraone [1989] WAR 154

State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 10496; 11 March 1997

Toth v Yellow Express Carriers Ltd [1969] 2 NSWR 425

1 MURRAY J: I agree that for the reasons given by Anderson J and Einfeld AJ, the appeal should be dismissed.

2 ANDERSON J: I have read the judgment of Einfeld AJ and respectfully agree that no error has been shown in the judgment appealed from, which dismissed a claim for personal injuries damages arising out of a workplace accident.

3 The circumstances of the accident were not very complicated. The appellant, a roof plumber, was working inside a warehouse at Kewdale using a ladder to fix a connection between an internal downpipe and the roof gutter. When he was near the top of the ladder, its feet slipped on the concrete floor allowing the base of the ladder to move outwards, bringing the appellant down. He sustained quite serious injuries to both wrists.

4 As to liability, the main issues were firstly whether the appellant was the respondent's servant or an independent contractor, and secondly, whether the respondent had a duty to take reasonable care for the safety of the appellant in the particular respects pleaded in the statement of claim and, thirdly, whether the respondent had breached that duty.

5 The trial Judge found that the appellant was an independent contractor and that the respondent did not breach the duty of care owed to him. In my opinion, these findings were plainly open on the evidence.

6 The respondent carries on business as a roofing contractor. This involves supplying and installing new roofing and repairing and replacing existing roofs, gutters and downpipes. The respondent maintained an office and an office staff, but subcontracted the roofing work and usually had about seven teams of subcontractors working on various jobs at any one time.

7 A tradesman seeking work through the respondent was required to fill out a form called a "Trade Employment Application" on which the details of the arrangement between the tradesman and the respondent were set out. In response to an advertisement placed by the respondent in the newspaper, the appellant and an associate by the name of Burnett attended at the respondent's office and filled out a Trade Employment Application in discussion with the respondent's managing director, Mr Turner. The evidence indicates that it was actually Burnett who wrote on the form, although the form was filled out in the appellant's name. The application

was accepted and the appellant and Burnett (mostly, it seems, the appellant) had been working under the arrangement for about three weeks when the accident happened.

8 As to whether the appellant was an employee or an independent contractor, the evidence was as follows. The appellant said in cross-examination that he regarded himself as a "contractor" and that he had set up in business for himself with his own commercial vehicle (a utility) fitted out with racks and the like to carry the tools and implements of a roof plumber's trade. In his income tax returns he declared his remuneration as a "business income" and he claimed as "business expenses" the costs of maintaining and running his motor vehicle and purchasing protective work clothing. The application to the respondent was a joint application made with Burnett. They applied for work as a "team". They nominated the specific work they were prepared to do, namely, installing and removing roof cladding and removing and replacing gutters and downpipes. They nominated an hourly rate for certain work, a rate per lineal metre for certain work and a square metre rate for certain work. The appellant said he "shared profits" with Burnett. By this, he can only have meant that when there was roofing work for them to do, the appellant and Burnett decided between them who would do the work and how the remuneration would be split between them.

9 The appellant admitted that he was to be paid against invoices which he was to render. It appears that he was only paid once, but the payment he received was against an invoice which he rendered. The jobs for which he charged and was paid on this invoice were at various places and there was no dispute that the appellant had to get himself to these places if he wished to do the work. He supplied his own tools. No income tax was deducted from his remuneration. A deduction was made pursuant to the income tax legislation, but this was under the prescribed payments system applicable to contractors. There was no provision for sick leave, long service leave or holiday pay in his arrangement with the respondent and there was no provision for superannuation. The appellant and Burnett represented to the respondent at the time of their engagement that they had their own "workers' compensation cover".

10 According to Mr Turner, whose evidence was accepted, the appellant was free to engage others to assist him with work he was given. The appellant was also free to work for other people and he was able to refuse work which the respondent offered to him.

11 On this evidence, the trial Judge made the following finding:

"In my view, a consideration of all the relevant factors in this case point to the relationship being that of principal and independent contractor, ie, a contract for services."

Not only was that finding open on the evidence, but the evidence virtually compelled it.

12 The appellant's main point was that the respondent told the appellant which sites to work at and what to do at those sites and when to do it; and work was regular. The appellant also relied on the word "employment" printed at the top of the application form. These matters cannot affect the conclusion that the appellant was an independent contractor. The word "employment" on the application form is obviously used in its wider sense. The application form, as a whole, is not an application to enter into a contract of service. As to the degree of control exercised by the respondent, a firm which carries on business as a roof fixer and which employs a number of teams of subcontractors would have to organise its teams. The teams would have to be moved from job to job in an orderly fashion, and their work would have to be co-ordinated and integrated. Of course, this would require some degree, even a close degree, of direction as to the subcontractors' individual and collective activities, including a measure of control over when certain work was to be started and finished, and how quickly it was to be done. The evidence of Mr Turner was that the degree of control which the respondent sought to exercise over the activities of the appellant and its other contractors went no further than to achieve this. That evidence was not contradicted. There really was no evidence that the respondent sought to control the manner in which the appellant actually did his work. The respondent's case was, and Mr Turner's uncontradicted evidence was, that the respondent was interested only in the result.

13 The appeal against the finding that the appellant was an independent contractor must be dismissed. It really had no prospect of success.

14 The finding that the appellant was an independent contractor rather than an employee was not necessarily the end of the case, but whilst the respondent owed a general common law duty of care to its independent contractors within the work environment, the duty cannot be equated with the duty owed by an employer to his employees.

15 The particulars of negligence which were pleaded in statement of claim were as follows:

"4.1 Failed to secure the ladder to prevent it from slipping by using hooks.

4.2 Failed to secure the ladder to prevent it from slipping by tying the ladder.

4.3 Failed to ensure the feet of the ladder were installed with a non-slip surface.

4.4 Failed to warn or advise the plaintiff of the dangers of working on the ladder when the floor surface was wet.

4.5 Failed to provide adequate or sufficient lighting which meant that the plaintiff had difficulty descending the ladder.

4.6 Failed to provide the plaintiff with competent or adequate supervision."

16 Most of the duties reflected in these particulars of breach are duties the existence of which would depend on proof that the respondent was the appellant's employer pursuant to a contract of service. That is so, in my opinion, at least with respect to pars 4.1, 4.2 and 4.4. The duties reflected in these particulars were not duties owed by the respondent to its independent roofing contractors and so were not duties owed to the appellant. The matters referred to in these particulars are matters which it was reasonable to leave to competent and experienced independent contractors.

17 As to 4.3, the evidence was that the ladder in question was provided by the respondent for the use of the men at the site. Whilst there might not have been a duty to provide a ladder, the respondent was arguably bound by ordinary common law principles to take reasonable steps to ensure that any ladder which it did provide to the appellant was safe and suitable. The only respect in which the ladder is said to have been unsafe or unsuitable is that it did not have non-slip "feet". The evidence is overwhelming that it did have standard rubber grips on its feet. This allegation failed on the facts.

18 As to 4.5, accepting, without deciding, that the respondent was obliged to supply its independent contractors with adequate lighting there was no evidence which established a nexus between the standard of lighting at the warehouse and the events by which the appellant was injured. There was no evidence that better lighting might have prevented this accident.

19 This leaves only the allegation implicit in par 4.6 that the respondent was bound to provide the appellant with "competent" and "adequate" supervision.

20 As I understood his argument, counsel for the appellant submitted that the man Cullin was engaged by the respondent to supervise the work at the warehouse, that he did so negligently and that the respondent was vicariously liable for his negligence; alternatively, that there was a duty upon the respondent to supervise the workplace and it failed to do so inasmuch as Cullin's purported supervision was inadequate.

21 Insofar as the appellant's case is that the respondent is vicariously liable for Cullin's negligent acts or omissions, Cullin was himself an independent contractor. The evidence as to that was overwhelming and unchallenged. There was no evidence that he was employed by the respondent to supervise the appellant's work. The respondent was therefore not vicariously liable for his negligence.

22 It can be accepted that, in the respondent's eyes as well as in the eyes of the other subcontractors, Cullin had a leadership role at the work site, but this seems to have been simply because he had been one of the respondent's subcontractors for a long time and he was the lead subcontractor on this job. As Mr Turner put it, this job was really Cullin's subcontract. Cullin's evidence was also to this effect. He said the work had been let to him initially, but it became too big for him to handle, so other subcontractors were brought in. It is natural that Cullin would assume the responsibility to co-ordinate and integrate the work to be done at this site in those circumstances.

23 The role adopted by Cullin is entirely consistent with all persons on site being independent contractors, but Cullin taking an organising responsibility and the others acquiescing in that state of affairs. Merely because tradesmen subcontractors organise themselves in that way does not mean that the principal is to be fixed with vicarious liability for the negligent acts or omissions of the independent contractor who takes the lead.

24 Turning to the alternative way in which the appellant's case on supervision/safe system may be put, a principal who engages independent contractors or teams of independent contractors to carry out an operation is under a duty to use reasonable care in organising the activity to avoid or minimise risks involved in that activity. But as Brennan J said in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47 - 48:

"The entrepreneur's duty arises simply because he is creating the risk (Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 479) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent in themselves to control their systems of work without supervision by the entrepreneur ... Once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility."

25 The question presented by particular 4.6 is whether the relevant activity at this workplace (working from ladders) was such that the general principles of the law of negligence gave rise to a duty in the respondent to retain and exercise a supervisory power with respect to the manner in which the work being done by the appellant at the site was carried out. That question must be answered in the negative. It was not reasonable to require the respondent to put a supervisor on the site to supervise competent and experienced independent roof plumbers in the safe use of ladders.

26 Anyway, if there was such a duty, the appellant failed to establish that a breach of it caused the appellant's injuries. No reasonably competent supervisor employed by the respondent for the purpose of superintending the activities of the independent contractors at this work

site would have done any more than was done by Cullin. As Einfeld AJ has pointed out, Cullin did all that was reasonably required of a supervisor in the circumstances. He could not order the appellant not to do work which the appellant had subcontracted to do and was bent on doing. He could only assist, suggest and advise, which he did.

27 The appeal against the finding that the respondent was not guilty of breaching the duty of care which it owed to the appellant must be dismissed. Once again, I am bound to say that it had no real prospect of success.

28 EINFELD AJ: On the morning of 8 August 1997, the appellant, then a roofing plumber, sustained serious fractures to both wrists when he fell from a five-six metre extension ladder to a concrete floor while working in the respondent's warehouse in Kewdale. He sued the respondent for damages in negligence alleging that he was the respondent's employee and on 9 February 2001 the District Court (Judge Wisbey) dismissed the claim. To avoid a further trial if his conclusions were overturned on appeal, his Honour provisionally assessed the damages at $198,128.70.

29 A considerable amount of the trial was devoted to the issue of whether the appellant was an employee of the respondent on the day of the injury, as he contended, or an independent contractor as the respondent argued. In his reasons for judgment, his Honour decided this issue in favour of the respondent's contention and this aspect of the judgment has been strongly attacked on this appeal. In this regard I respectfully agree with the conclusions of Anderson J.

30 In certain circumstances this matter could have been important in arriving at a final result. More fundamental to the outcome of the appeal, however, is the failure of the appellant's collateral attack on his Honour's findings that he had not established any negligence by the respondent and that he was the author of his own misfortune. In my opinion, the learned Judge's findings in this regard were amply justified by the evidence. It will suffice to accept, or proceed upon the assumption, that the respondent owed the appellant a duty to take reasonable care for his safety while he was on its premises.

31 The appellant's case on negligence was based on evidence that:

2. it was wet and slippery from rain water escaping through a leaking downpipe which the appellant was repairing or replacing;

4. the respondent supplied the ladder which the appellant was using;

5. the ladder had corrugated rubber "feet" designed to grip the surface on which it stood;

6. in the circumstances as applied on the day in question, it is customary to secure ladders by tie ropes;

8. there was nothing on the wall to which tie ropes could have been attached.

32 Moreover, the appellant submitted that in the circumstances, it was dangerous to use a ladder at all and that a mobile scaffold one of which was available at the site should have been provided for him to use. It was common ground that an accident of this kind suffered by the appellant was reasonably foreseeable, in particular in that the combination of bird droppings and water on a smooth concrete floor created an obviously hazardous surface on which to place an extension ladder holding at its zenith a worker performing active repair tasks.

33 Within this context, there were two principal issues of fact, both of which were decided by the trial Judge adversely to the appellant. One was whether the appellant and a fellow worker Vincent Doran were instructed by the supervisor, Ken Cullin, who was himself an independent contractor, not to use the ladder and to use the mobile scaffold. The second was whether the appellant used the ladder upside down so that the corrugated rubber "feet" were useless and the risk of falling was substantially increased. In fact, the appellant conceded on this appeal that the third ground of appeal was crucial to his success. This ground says:

"3. The finding by the learned trial Judge that the Respondent's (Defendant's) foreman Cullin had counselled the Appellant (Plaintiff) not to use the ladder was wrong in fact and law and was manifestly against the weight of the evidence.

Particulars

(i) Doran gave evidence that he also was using a ladder to repair down pipes in close proximity to the position to where the Appellant (Plaintiff) was working and in the period immediately preceding the accident.

(ii) Doran gave evidence that he had not been warned or counselled by Cullin not to use the ladder for such purpose.

(iii) The learned trial Judge should have accepted Doran's evidence in this regard and should have rejected the contrary evidence from Cullin.

(iv) Doran's evidence cast real doubt on the veracity of Cullins evidence generally which evidence should have been rejected."

34 In the teeth of the trial Judge's acceptance of Cullin as a witness of truth, the appellant argued that his evidence was so "glaringly improbable" as to require its rejection in favour of the evidence of the appellant and Doran. On an appeal of this kind, this argument is quite untenable. Cullin gave clear evidence that he told this appellant not to use the ladder. Cullin said, and the appellant denied, that he had instructed the appellant to use the scaffold. Likewise, Doran who was on another ladder 20 feet away from the appellant doing similar work, said that he was not instructed not to use the ladder and to use the mobile scaffold. Although it does not seem that Cullin was ever expressly asked whether he had instructed Doran to these effects, Doran's evidence was that if one worker had been told, all of them would have been told. He did not see the appellant in discussion with Cullin at all.

35 The appellant submitted that it is inconceivable that Cullin would have given an emphatic safety instruction to the appellant but not given it to another person undertaking the same task in the same physical environment at the same time. The appellant pointed to the very limited cross-examination of Doran on this issue and said he was an "impressive and forthright" witness who had no reason to lie or embellish his evidence. He hardly knew the appellant and had had no contact with him after the accident.

36 The appellant put the somewhat startling proposition that the trial Judge's preference for Cullin's evidence to Doran's arose from what he described as the Judge's "contaminated" view of him arising from his evidence on the upside down use of the ladder. But as will be seen, this "contamination" was a mere rejection of some of Doran's evidence on that issue which his Honour thought was unlikely to be true. There was no finding that Doran lied, still less did his Honour manifest any inherent antagonism to him as a witness. The conclusion reached was merely that Doran's evidence was improbable.

37 It is obvious that this Court has not had a "live" opportunity of comparing the contradictory evidence. We have only been able to read it in the transcript. My reading does not enable me to substitute another view of the truth to that reached by his Honour who did see and assess the witnesses in person. No error of principle has ever been advocated. It has not even been argued that the trial Judge "palpably misused his advantage": Wilson v Peisley (1975) 50 ALJR 207 at 214; Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-3; Rosenberg v Percival [2001] HCA 18; (2001) 75 ALJR 734 at [26], [38]-[39]; SS Hontestroon v SS Sagaporack [1927] AC 37 at 47. See also Galea v Galea (1990) 19 NSWLR 263 at 265-6; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd [1999] HCA 3; (1999) 73 ALJR 306 at [90], [92]. Indeed, on no view of the evidence on the "instruction" issue could any such submission have been made or conclusion reached.

38 It will be a rare case when a simple conflict of recollection such as this one will provide a basis for appellate intervention to reverse a factual finding made at trial. There is nothing irrational or illogical in a preference for one account of a conversation to another. All types of arguments might be validly put in a given case as to why the alternative conclusion should have been reached, but the failure to reach it will not thus become appealable. It is, in my view, a complete misuse of the appeal process to seek to impugn a Judge's findings on credibility and the probabilities on such a basis. The appellant's arguments in this respect must be rejected.

39 As the appellant said that if this issue was found against him, he could not succeed in this appeal, it is strictly not necessary to resolve the issue concerning the alleged upside down use of the ladder. However, it is convenient to do so, albeit briefly.

40 The appellant's examination-in-chief on this matter was that:

1. he placed the ladder so that the rubber "feet" were on the floor;

2. he checked its stability by getting on and off the bottom rung(s) before he ascended;

3. he walked up the ladder on the correct side of its rungs;

4. he got right to the top of the ladder;

5. the ladder started to slip as he began his descent;

6. the top slid down the wall and the legs of the ladder moved out;

7. he landed backwards with his hands outstretched behind him.

41 In cross-examination, he "couldn't say for certain" that he had not put the ladder upside down.

42 Doran saw the appellant fall. He said that the bottom of the ladder slipped out from under him "and down he came". When he went over to help, the appellant was beside the ladder with his hands inside it. Doran took the ladder off him and moved it to one side because, so he said, it would block the doorway through which an ambulance would have to come to take the appellant to hospital. In fact, no ambulance came and the appellant walked to a car which took him to hospital.

43 In cross-examination, Doran stated that he had only been asked to recall the accident a week before the trial or nearly four years after it happened. He appeared somewhat confused about the relative position of the appellant and the ladder on the ground after the fall. He said he did not turn the ladder around.

44 Cullin arrived at the scene very soon after Doran. David Turner, the respondent's managing director, followed soon after. Their evidence included the observation of parallel skid marks leading to the ends of the ladder such as to clearly indicate that it had been standing upside down. Their evidence was accepted in preference to Doran's. Of Doran's evidence, his Honour said:

"Mr Doran stated that on the morning of the accident he was working on a ladder inside the factory, approximately 6m from the [appellant], fixing a downpipe with silicon. The factory floor was wet and slippery. He confirmed that the [appellant] was doing the same sort of work as himself and stated that he noticed the bottom of the [appellant's] ladder slip out, causing the [appellant] to crash to the floor. He went to the [appellant's] aid, essentially extricating [him] from the ladder and moving the ladder to the side. He claimed that he moved the ladder aside because it was in the opening of a doorway, and he contemplated that an ambulance would have to come in. I find that difficult to accept."

45 It is not entirely clear from this statement what part of Doran's evidence his Honour was doubting or rejecting. If Doran moved the ladder, the reason given was perhaps unlikely because of the unlikely need for an ambulance at all, let alone for it to drive right into the warehouse. But it was not entirely implausible having regard to the shock of the accident itself and the natural desire to help the appellant disentangle from the ladder. The evidence of Cullin and Turner was that the ladder was still in the place where it had finished its slide down and out when they reached the scene. The skid marks they saw through the wet bird droppings to the base of the ladder proved the slide and were inconsistent with Doran's evidence that he had moved the ladder to one side. They also indisputably showed that the ladder had been inverted when the appellant was standing on it. In the event, his Honour was satisfied:

" ... that the ladder slipped because it was standing on a wet, dirty and hence slippery concrete floor, and had not been tied off. I am also satisfied on the evidence that the ladder was inverted when placed against the factory wall and as a consequence did not have the advantage of the foot grip designed to prevent the base from slipping."

46 The appellant submitted, apparently correctly, that if Doran's evidence of moving the ladder was accepted, the evidence of its use upside down must be rejected along with the skid marks observations. He argued that this approach to the evidence, overwhelmingly called for, would have removed the taint on or "contaminated" approach to Doran's evidence on the "instruction" issue, in which event, the appeal must be upheld. The basis for these hypotheses must be rejected.

47 It may well have been open to the trial Judge to have accepted Doran's evidence about moving the ladder. His Honour might also have rejected Turner and Cullin and found that there were no skid marks to the base of the ladder. But such conclusions were at best no more open - "reasonable", "logical" or "plausible", to adopt terms used by the appellant in argument - than the alternative assessment and findings which were made. The task of evaluating evidence and the witnesses who give it is exclusively in the hands of trial Judges. As the authorities earlier referred to make clear, it will only be in very limited circumstances that they will be put to one side in favour of the views of an appellate court. There was nothing which called for any such result on this factual issue.

48 I cannot leave this appeal without a final comment on its conduct. This appeal was inadmissibly argued on all issues as a retrial of the whole case, quite contrary to well-established principles. The appellant's challenge to the judgment below was peppered with words and phrases such as:

• "The reasoning was neither justified not logical."

• "The reasoning does not withstand scrutiny by reference to logic or commonsense or experience."

• The rejected evidence of Doran "was entirely plausible and reasonable" and "was not inherently unlikely. It should have been accepted."

• It was rejected "on a patently illogical and unreasonable basis".

• " ... his Honour formed an (unwarranted) contaminated view of [Doran] generally, which view was carried forward into the assessment of his other evidence."

• "The assessment of Doran's evidence on the critical issues ... was tainted by this unjustified impression."

• The rejection of this evidence had "a flawed illogical foundation" when in fact he "should have rejected the evidence of Cullin ..."

49 I could find no basis for any of these quite polemic contentions. Some of them at least bordered on offensive and tendentious because they had nothing other than counsel's rhetoric to sustain them. Perhaps cumulatively they might, if true, have established some basis for appellate intervention. But when properly analysed, they amounted at best to no more than a closing address at the conclusion of a trial, not to the task required on appeal of identifying an error of principle or a patent misuse of a trial Judge's beneficial exposure to the oral evidence of the witnesses concerned. Fearless submissions by counsel are an essential part of our system of justice. They often assist the courts to clarify and resolve the issues between the parties. But the more outspoken and aggressive they are, the more they must be supported by the facts and the legal principles applicable to their consideration. In my view, those concepts were dangerously stretched in this appeal.

50 In the light of my conclusions, it is not necessary to deal with the provisional assessment of damages. I propose that the appeal on liability be dismissed with costs.