Worldon v Schofield & Ors

District Court of NSW|2014-03-17|Before: Gleeson CJ

ndants) Mr Crowe SC with Mr Ronzani (Second defendant - 2010/257553) Mr Catsanos (Second defendant - 2013/165459) Kells the Lawyers (Plaintiff) Mr Schofield and Mr Smith in person (First defendants) Sparke Helmore (Second defendant - 2010/257553) Moray & Agnew (Second defendant - 2013/165459) File Number(s): 2010/257553 & 2013/165459 consolidated as 2013/165459 Publication restriction: None

Nature of the case 1In these proceedings the plaintiff, Craig Worldon, claims damages in respect of a debilitating back injury he received in the course of his employment with the defendants Andrew Schofield and Bradley Smith, who at the relevant time, traded under the business name of Schofield Fencing. 2Between about late June or early July 2007 and 3 September 2007, the plaintiff was working as a labourer on the construction of perimeter fencing at premises known as the Alexander Maconochie Gaol complex, in Fyshwick, in the Australian Capital Territory. The plaintiff claims his injury occurred because his employers were negligent in relation to the system of heavy manual work in which they required him to participate.

The proceedings and parties 3Pending resolution of a choice of laws question, the plaintiff has commenced two sets of proceedings arising out of the same events. At a previous sittings of the Court in Wollongong, an order was made consolidating the two sets of proceedings into the proceedings numbered 2013/165459. 4In proceedings 2010//257553, Andrew James Schofield and Bradley James Smith trading as Schofield Fencing were named as the first defendants and the Workers Compensation Default Insurance Fund Manager, the ACT Fund, was named as the second defendant. 5In proceedings 2013/165459, Mr Schofield and Mr Smith trading as Schofield Fencing were named as the first defendants and the Workers' Compensation Nominal Insurer, the NSW Fund, was named as the second defendant. 6In the consolidated proceedings, Mr Campbell SC with Mr Longhurst appeared for the plaintiff, Mr Schofield and Mr Smith were self-represented. Mr Crowe SC with Mr Ronzani appeared for the ACT Fund. Mr Catsanos appeared for the NSW Fund. 7At the commencement of the hearing the plaintiff sought and obtained leave to discontinue his proceedings against Mr Schofield and Mr Smith due to previous orders in bankruptcy made against those persons. The evidence of the respective status of those bankruptcies was left unclear on the evidence, but nothing seems to turn on this. 8Due to a need to resolve a choice of laws question, namely, whether the substantive law of New South Wales or the substantive law of the ACT applied to the circumstances of the plaintiff's injury, the parties identified separate questions for determination. This was because of the different schemes for assessment of damages that apply, depending on the resolution of the choice of law question: Workers' Compensation Act 1987 (NSW); Workers' Compensation Act 1951 (ACT).

Procedural orders and issues for determination 9At the commencement of the hearing, by consent, and pursuant to UCPR r 28.2, the following separate questions were ordered to be determined: Issue 1 - Choice of laws : Whether New South Wales or the Australian Capital Territory is the relevant state or territory of connection in relation to the plaintiff's employment at the date of his alleged injury; Issue 2 - Alleged negligence : Whether the entity Schofield Fencing is liable in negligence for any alleged injury suffered by the plaintiff; Issue 3 - Alleged contributory negligence : Whether the allegation of contributory negligence made against the plaintiff has been proved, and if so, the determination of the degree, if any, of the plaintiff's culpability in reduction to any, if any, damages awarded in due course by the court or to otherwise to be agreed between the parties. 10The parties required these questions to be determined separately because of the different procedural and insurance considerations that had to be pursued and applied depending upon whether the territory of connection of the plaintiff's employment at the time of his injury was either NSW or the ACT. 11Consequently, the determination of the plaintiff's entitlement to damages has to be deferred to a later hearing in accordance with those findings.

Evidence overview 12In addition to his own evidence and some documents and photographs of the construction works, the plaintiff also relied upon the expert evidence of Dr Neil Adams, an ergonomist and safety management consultant. Dr Adams prepared a report dated 18 May 2010: Exhibit "C". Dr Adams also gave oral evidence. The opinions of Dr Adams were not contradicted by other expert evidence. 13In the case for the defendants, oral evidence was given by Mr Smith, a former principal of the business, and Mr Malcolm Scott Thomas, a former co-worker of the plaintiff, and a former employee of Schofield Fencing. Those witnesses were called by Mr Crowe SC on behalf of the ACT Fund, and they were cross-examined by counsel for the plaintiff. Mr Schofield was present throughout the hearing. Contrary to an earlier indication given at the outset of the hearing, Mr Schofield was not called to give evidence.

Credit 14The plaintiff is an unsophisticated, plain speaking man who gave his evidence in a straightforward and clearly communicated manner. He impressed me as an honest and truthful witness who gave his evidence without guile and with measured restraint. It was put to him that he was exaggerating his evidence. I did not gain that impression. 15Although he gave what turned out to be an inaccurate estimate of the length, and perhaps the weight, of the formwork structures he was required to carry, namely about 15m, compared to his in-court estimate which turned out to be about 8m, that inaccuracy was relative. In the absence of precise definitions of the weights and dimensions of the objects he was required to manhandle, and in view of the expert evidence of Dr Adams on such matters, I consider that nothing turns on those discrepancies. 16The structures in question were without doubt long and very heavy. I consider that it would be a mis-characterisation to describe the plaintiff's estimates of lengths and weights as exaggerations given the inherent difficulties with after-the-event abstract in-court comparative estimates of distances and weights, in circumstances that are different from the dynamics that prevailed at the time of his injury. Contrary to the submissions made on behalf of the defendants, I did not consider the plaintiff's evidence to have been shown to have been unreliable in any material sense.

Facts 17In the paragraphs that follow, and unless otherwise qualified, I set out my findings of fact concerning the plaintiff's background circumstances and the facts surrounding the accident.

Plaintiff's background 18The plaintiff is presently aged 36 years. At the time of the injury he was aged 29 years. 19The plaintiff, a life-long resident of the Goulburn area, had left high school at the end of Year 10. From that time until the time of the accident he had pursued intermittent work as a bricklayer, fencer and farm labourer, according to what work was available for him at any given time. 20In about August 2006, the plaintiff met Mr Schofield and Mr Smith at their shed in Goulburn. It appears that he was introduced to them by Mr Thomas, and as a result, he was offered casual work to be performed whenever it was available: T17.50. The arrangements between them were that he would be called to work when casual work was available in various locations, whether in the Goulburn area, Canberra, Sydney, Melbourne, Bateman's Bay or wherever. 21The plaintiff was paid in cash for that work and he was not "on the books" of the business. That arrangement involved the plaintiff working for up to a couple of days per week, and in some weeks, not working at all: T18.10 - T18.36. 22In either late June or early July 2007, those arrangements changed. This occurred when Schofield Fencing acquired the fencing sub-contract for the subject gaol complex in Canberra. At that time, the plaintiff was told by Mr Schofield he would have "to go on the books" for the Canberra job. In the course of those events he was required to sign a piece of paper, the detail of which he could not recall. He was not given a copy of that document: T18.40 - T19.36. The plaintiff agreed it could have been a document that concerned a tax file number: T56.49. 23Immediately following those events, each morning he was transported by Schofield Fencing from the shed in Goulburn in that firm's vehicle to the gaol work site in Canberra. There were a number of such vehicles used to transport employees and tools to Canberra for that work. Mr Smith kept a record of the hours the plaintiff had worked in that regard. 24The plaintiff presented himself to the shed at Goulburn on 5 to 6 days per week at a very early hour in the mornings for the trip to Canberra, and he was then driven back to Goulburn each evening at the end of the working day: T19.40 - T21.27. 25In that period, the plaintiff was paid at the end of each week by means of a cash cheque. He was being paid at the rate of $18.60 per hour and his weekly earnings were about $1158 per week gross: T23.11. He worked in that position for between 50 to 60 hours per week, and he was not paid for travelling time: T53.16 - T53.28. 26The plaintiff received negligible instructions by way of a site safety induction from his employer. There were some earthmoving machines on the site but these could not be used as lifting aids for heavy formwork components or steel fencing posts where the ground was uneven, so that most of the time, manual handling of those heavy items was required: T60.47.

Circumstances of injury 27The fencing construction site at the gaol involved the plaintiff carrying out a number of labouring tasks that could reasonably be described as comprising repeated heavy work, and included heavy lifting as well as twisting movements. That work was of a kind that would foreseeably place the plaintiff at the risk of suffering a straining injury to his back. 28At the worksite in question, the plaintiff was engaged as part of a team of workers to build both the inner and the outer perimeter fences at the gaol complex. It appears that some of those workers were employed by Schofield Fencing and others were employees of the head fencing contractor. 29The various work tasks in which the plaintiff participated associated with erecting the inner fence portion of that project can be identified as comprising the following activities: (1)Digging trenches into the ground in readiness for the fitting of sections of formwork to construct in-ground plinth-type foundations for a perimeter fence to be erected around the gaol facility; (2)Repeatedly lifting and relocating heavy sections of formwork into position to test for appropriate size and fit, and to then lift out those sections to enable further digging to take place, and to then re-fit the formwork into position in preparation for pouring concrete plinth foundations for the proposed fencing structures; (3)Positioning and tying steel mesh and associated upright bolts into the pre-prepared formwork channels; (4)Removing the formwork after the poured concrete had cured; (5)Lifting, carrying, and at times dragging long and heavy steel posts to their respective bolt down positions and points into the concreted plinth sections of the fence line foundations; (6)Raising the steel posts into an upright position near the bolting points on the cured concrete plinths; (7)Lifting the steel posts in order to place the footplate holes of those posts into position over the upright bolts, and then fixing those posts into place with an arrangement of tightened nuts, washers and bolts; (8)Attaching wire mesh fencing to the fixed fence posts. 30In addition to participating in the construction of the inner perimeter fence as described above, the plaintiff's work also entailed him assisting with the erection of steel posts for a parallel but lighter outer fence onto concrete plinths, and then fixing cyclone wire to the upright posts of that outer fence. 31The formwork the plaintiff was required to manhandle was of the order of 5m to 6m long: T25.20. The heavier steel posts were estimated in the evidence of the plaintiff as being roughly between 80kgs to 100kgs: T26.4. 32The plaintiff continued in the course of this work between July and August 2007. In the course of the activity associated with the erection of components of the inner fence, in about mid-August 2007, the plaintiff began to notice a sharp pain in his left calf, which had later extended to just below his left buttock. 33The plaintiff had complained to his employers of the excessively arduous nature of the work that had been allocated to him but his complaint had been rebuffed by Mr Schofield in a mocking manner, a matter to which I shall return in considering the question of whether or not the system of work involved negligence. 34The plaintiff's experience of pain led him to cease his work on about 20 August 2007. In those events he notified his employers that he had suffered a back injury in the course of his work. On about 3 September 2007 he then attended upon his general practitioner, Dr Natalie Pecker, for those problems. He was then initially sent for physiotherapy, but he was later sent for a specialist evaluation. 35The ensuing investigations ultimately led to a diagnosis of a large L5/S1 disc prolapse for which the plaintiff underwent surgical treatment. The unchallenged medical evidence is that there is a direct causal link between the nature and conditions of the plaintiff's work and that disc prolapse: Dr Bodel, Exhibit "E".

Issue 1 - Territory of connection of employment 36The plaintiff seeks a finding that the substantive law of the ACT applies to the assessment of damages of his case. 37The provisions of the Workers' Compensation Act 1951 (ACT) provide for the substantive law of the ACT to be applied in connection with a claim for damages for workplace injuries of the kind sustained by the plaintiff in this case if the employment in question is connected to the ACT: s 182A, s 182B, s 182D. 38In order for the plaintiff to have his damages assessed according to the substantive law of the ACT, the plaintiff must satisfy the required connection of employment test: s 36A and s 36B of the Workers' Compensation Act 1951 (ACT). 39The question of the state of connection of the plaintiff's employment is a question of fact that must be determined according to the considerations set out in s 36B(6) of that Act. 40Accordingly, the decided cases the parties made reference to on the question of the territory of connection of employment, whilst providing helpful guidance, are all dependent upon their own facts, and therefore of no binding effect as precedents that determine the outcome of this case: Hanns v Greyhound Pioneer Australia Ltd [2006] ACTSC 5; Avon Products Pty Limited v Falls [2010] ACTCA 21; Ellis v Weldcraft Engineering ACT Pty Ltd and Construction Control Holdings Pty Ltd [2011] ACTSC 164; Ruskic v Greenwich Contractors Pty Limited [2013] ACTSC 263; Martin v RJ Hibbens Pty Ltd [2010] NSWWCCPD 83; Weir Services Australia Pty Ltd v Allianz Australia Insurance Limited [2013] NSWSC 26. 41Section 36A of the Workers' Compensation Act 1951 (ACT) provides that the question of the connection of a worker's employment to a state or territory must be determined under Pt 4.2A of that Act. 42Section 36B of the Workers' Compensation Act 1951 (ACT), which is part of Pt 4.2A of that Act, sets out relevant criteria to be considered in making the factual determination of the issue of employment connection. The section relevantly provides: 36B Employment connection test (1) Compensation under this Act is only payable if the ACT is the Territory or State of connection. ... (3) A worker's employment is connected with- (a) the Territory or State where the worker usually works in the employment; or (b) if no Territory or State, or no single Territory or State, is identified by paragraph (a)-the Territory or State where the worker is usually based for the purposes of the employment; or (c) if no Territory or State, or no single Territory or State, is identified by paragraph (a) or (b)-the Territory or State where the employer's principal place of business in Australia is located. ... (6) In deciding whether a worker usually works in a Territory or State- (a) regard must be had to the following: (i) the worker's work history with the employer over the previous 12 months; (ii) the worker's proposed future working arrangements; (iii) the intentions of the worker and employer; (iv) any period during which the worker worked in a Territory or State (a relevant place) or was in a relevant place for the purposes of employment, whether or not the worker is regarded as working or employed in the relevant place under the workers compensation law of the relevant place; but (b) regard must not be had to any temporary arrangement under which the worker works in a Territory or State for a period of not longer than 6 months. ... 43I now turn to address those considerations referred to in s 36B of that Act that are relevant to the present case, and make findings as follows. 44The place where the plaintiff usually worked for Schofield Fencing was the gaol site in the ACT. This engages the provision of s 36B(3)(a) of the Act because he was transported to that workplace as a matter of course by his employer on each working day, and the paid work component was on the site in the ACT, and did not include a component for travel. In my view, the connection of employment test, which is undemanding, plainly establishes that the plaintiff's usual workplace for his employment when he was injured was in the ACT and not in NSW. 45It is therefore not relevant to consider the alternative circumstances described in s 36B(6)(b) and (c) of the Act. 46In determining for the present purposes whether the plaintiff usually works in the ACT I must have regard to the criteria set out in s 36B(6)(a)(i)-(iv) and s 36B(6)(b) of the Act as cited at paragraph [42] above. 47As to s 36B(6)(a)(i) of the Act, a review of the plaintiff's work history over the previous 12 months is instructive. Until late June 2007, the plaintiff was an intermittent casual employee of Schofield Fencing. That work was characterised by four significant elements. First, the work was casual, secondly, it was intermittent and not regular or constant, thirdly, it was work carried out at disparate locations, and fourthly, the status of that employment was not formalised by inclusion of the plaintiff on the books of the business for tax purposes or otherwise until the advent of the job at the gaol in Canberra, which necessitated that he went "on the books". That combination of events compels me to the view that on or about late June or early July 2007, the character of the plaintiff's employment with Schofield Fencing changed in a material sense so as to render the relevant employment to have a connection with the ACT and not NSW. This view is consistent with the undisputed evidence of the plaintiff's employment with Schofield Fencing having commenced on 1 July 2007, as is stated in the plaintiff's workers' compensation claim form: Exhibit "B". 48As to s 36B(6)(a)(ii) of the Act, the plaintiff's future work intentions were unlikely to involve long-term or continuation of employment with Schofield Fencing beyond the life of the Canberra gaol job. This is plain from the evidence of the plaintiff because the work was unduly arduous, the employers were not considerate of the work safety concerns of the plaintiff, and the difficulties that such work posed for the plaintiff. This suggests to me that once the Canberra job had concluded, the working conditions in the employ of Schofield Fencing were unlikely to attract the plaintiff to continue working for that firm beyond the duration of the Canberra job. This too suggests that the employment was connected with the ACT and not NSW. 49As to s 36B(6)(a)(iii) of the Act, the evidence of the intentions of the plaintiff and his employers did not coincide so as to suggest that the parties were likely to have a long-term working relationship so as to suggest an ongoing employment connection with NSW. This view is plain from the undisputed attitude of Mr Schofield in disrespecting the plaintiff's concerns over the safety and congeniality of the working conditions, and the plaintiff describing those conditions in the vernacular as "crap". In my view, those circumstances did not provide a reasonable framework for inferring a long-term future working relationship between them. Instead, I consider the contrary to be more likely to be the case after the Canberra gaol project had been completed. This too negates the notion of an ongoing employment connection with NSW. 50As to the considerations in s 36B(6)(a)(iv) and s 36B(6)(b) of the Act, the plaintiff's previous temporary periods of employment with Schofield Fencing at various places when work was available was not continuous or of a duration longer than 6 months. This is consistent with the commencement date stated in Exhibit "B" as 1 July 2007. That date was nominated by the plaintiff well before the legal issues under present consideration became apparent, so it could not be reasonably suggested that the plaintiff's evidence on this account had been tailored in a self-serving way. This too compels a finding that the connection of the plaintiff's employment was the ACT and not NSW. 51On the first question for separate determination, I therefore conclude that at the time of his injury, the plaintiff's employment was connected with the ACT and not with NSW.

Issue 2 - Alleged negligence of the employers 52It is beyond argument that as employers of the plaintiff, Mr Schofield and Mr Smith owed the plaintiff a non-delegable duty of care requiring them to take reasonable care for his safety in the workplace, including the duty to take reasonable care to maintain a safe system of work that avoids exposing him as an employee to unnecessary risks of injury: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254, at [13] per Gleeson CJ; Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301, and other cases in that line of authority. 53In view of the findings on Issue 1, the determination of whether the plaintiff's employers were negligent must proceed according to the requirements of the substantive law of the ACT. This means that the alleged negligence of the plaintiff's employers stands to be assessed according to the common law of the ACT as modified by the Civil Law (Wrongs) Act 2002, and in particular, Pt 4.1 of that Act. 54The relevant sections of that Act are s 42 to s 45. Section 43 of that Act is in similar terms to s 5B of the Civil Liability Act 2002 (NSW). 55This requires a prospective analysis of whether the plaintiff's employers were negligent according to accepted common law principles: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. 56The relevant particulars of negligence relied upon by the plaintiff were as follows: (a)Failure to heed repeated warnings by the plaintiff and other employees of the difficult nature of the lifting required. (b)Failure to institute, devise and or maintain appropriate alternative systems for lifting including the use of more labour and/or mechanical assistance. (c)Failure to stack the fencing posts by mechanical means closer to the site where they were to be inserted into the concrete. (d)Required the plaintiff to lift and carry the fencing posts and bags of cement over a prolonged distance. (e)Required the plaintiff to carry heavy loads over uneven surfaces thereby enhancing the risk of injury. (f)Failure to provide suitable mechanical assistance in relation to the lifts including but not limited to wheeled trolleys, modified tractors, bobcats or forklifts or a purpose built designed small mobile crane. (g)Failure to provide appropriate training in relation to safe lifting and manual handling techniques. 57Repetitive heavy labouring work of the kind the plaintiff was required to perform represented a foreseeable source of potential injury to him. I accept that this was well known to Mr Schofield and to Mr Smith. I accept the evidence of the plaintiff that the weights of the objects he was required to manhandle were very heavy and this represented a foreseeable source of injury to any workers who were required to perform those tasks: s 43(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT). 58In the context of the work being carried out on a construction site on uneven ground and with the requirement that the plaintiff had to repeatedly lift, carry and manipulate heavy formwork segments and steel fencing posts, including with the need to perform some twisting movements under load, the risk of injury to the plaintiff was ever present and foreseeable, even where there was additional manual labour available to form part of the team allocated to carry out the work. 59The risk of injury to a worker in the course of handling heavy materials on a construction site is not an insignificant one: s 43(1)(b) of the Civil Law (Wrongs) Act 2002 (ACT). 60The risk that such work could cause injury to a worker engaged in the handling of the heavy materials on uneven ground as described by the plaintiff was an ever-present one, and therefore are that would ordinarily require a reasonable employer to take precautions against the risk of injury to workers: s 43(1)(c) of the Civil Law (Wrongs) Act 2002 (ACT). 61According to the unchallenged evidence of the plaintiff, before his injury when he pointed out to Mr Schofield the arduous and "ridiculous" nature of the work, he was met with the mocking response that he should "harden the eff up and stop wearing a skirt" as if the safety issue he had raised was just a joke: T41.6. 62Mr Schofield, who was present in court throughout the hearing, was not called to contradict that evidence given by the plaintiff. 63In my view, the response the plaintiff received when he raised that safety issue was not in accordance with a reasonable risk management response expected of a reasonable employer in the circumstances described by the plaintiff. 64I accept the evidence of the plaintiff that before he injured his back at the gaol site, he had repeatedly mentioned to Mr Smith the problems of carrying out the work on uneven ground, and that the workers on the job should not be engaged in lifting heavy formwork and the like: T39.25; T40.20 - T41.2. This was because the work could be performed more safely with mechanical assistance from machines on the site. 65I accept the opinion of Dr Adams that the manual handling tasks required of the plaintiff had the foreseeable potential to impose quite injurious stress upon the plaintiff's spine. This was from the perspective of both accumulative work stresses as well as an individual stressor that could cause a frank physical injury. 66I also accept the opinion of Dr Adams that prior to the plaintiff's injury it would have been well known to employers that there was a causal relationship between musculo-skeletal injury and the performance of tasks such as awkward or repetitive manual handling tasks, including lifting, carrying and manipulating heavy and bulky items. In my view, that description aptly applies to the tasks in which the plaintiff was engaged on the Canberra gaol site. 67I accept the opinion of Dr Adams that it was entirely foreseeable that the plaintiff, in being required to repeatedly perform such heavy work, could foreseeably suffer the musculo-skeletal injury to his lumbar spine, which in fact occurred due to the nature and conditions of his work: Dr Bodel. It is not necessary to determine whether the plaintiff's injury occurred as a result of the cumulative stresses to which he was subjected, or whether it was due to a single event. Both scenarios were equally foreseeable and could have applied equally: s 43(1) of the Civil Law (Wrongs) Act 2002 (ACT). 68I find that those physical work stresses to which the plaintiff was subjected in the work system employed could have been readily avoided by implementing reasonable, relatively simple and apparently inexpensive measures aimed at preventing the injury which the plaintiff has incurred: s 43(2) of the Civil Law (Wrongs) Act 2002 (ACT). 69Those measures included undertaking a comprehensive risk evaluation of the entire set of manual handling tasks inherent in the work system, proper training on site safety, and the provision of mechanical lifting and transportation aids to enable safe manoeuvring of the formwork components and the steel fence posts. 70In a system of work requiring the manual handling of heavy and awkward materials such as in the case under present consideration, the probability of injury occurring to a participant worker was high if reasonable precautions against injury were not taken: s 43(2) of the Civil Law (Wrongs) Act 2002 (ACT). 71The likelihood of serious harm occurring to an employee engaged in an unsafe system of work was a well known and obvious phenomenon that hardly needs stating: s 43(2) of the Civil Law (Wrongs) Act 2002 (ACT). 72The burden of taking precautions against the harm that occurred in this case was slight and inconsequential: s 43(2)(c) of the Civil Law (Wrongs) Act 2002 (ACT). 73There is no social utility in allowing unsafe work practices to prevail: s 43(2)(d) of the Civil Law (Wrongs) Act 2002 (ACT). 74Relatively simple and inexpensive safety measures were available to the plaintiff's employer. 75There was a bobcat machine on site. That could have been used in connection with lifting slings. If not, some similar small mobile lifting device could have been used in association with the machinery already on site. The evidence discloses that the plaintiff's employers did nothing to address the risk of injury associated with the requirement that the plaintiff participate in carrying and manipulating heavy loads over uneven surfaces. 76That risk could also have been readily and simply addressed by flattening the uneven ground of the work areas with machinery and by the use of mechanical lifting devices to eliminate the need for manual carrying. 77In particular, the task of lifting the fence posts in the vertical position and then manipulating them onto fixation bolt mounting points required the provision of reliable mechanical support to take the weight of the load, which was lacking in this instance. I accept the opinion of Dr Adams that this element of the work system was the most demanding of the plaintiff, and had the highest potential to cause injury. 78When the plaintiff pointed out problems with the work to his employer, instead of mocking him and challenging his manly capacity for manual work, the employers should have taken the opportunity of evaluating the scope for deficiencies in their system of work. The fact that they did not do so, and instead mocked the plaintiff in the manner already described, confirms to me the view that the employers had a cavalier and callous attitude to the safety of their employees, and that such an attitude was more probably than not present at the outset of the plaintiff's involvement in the job. 79Had the plaintiff's employers approached the question of safety with ordinary prudence, they would have ensured that the plaintiff was adequately trained and supervised for the performance of his work, including by induction into safe working practices, and to ensure that the tasks allotted to him were carried out safely. I find that all such measures were absent on this particular job and this is what caused the plaintiff to suffer his back injury as claimed. 80In my view, each of the particulars of negligence relied upon by the plaintiff, as outlined at paragraph [55] above, have been made out. I therefore find that Mr Schofield and Mr Smith were negligent in the manner alleged. 81Having regard to the unchallenged opinion of Dr Bodel, I am also satisfied that such negligence was the cause of the plaintiff's back injury which is the subject of this claim: s 45 of the Civil Law (Wrongs) Act 2002 (ACT).

Issue 3 - Alleged contributory negligence 82The defendants raised the following particulars of a plea of contributory negligence against the plaintiff: (a)Failure to take proper care for his own safety. (b)Failure to take any or any proper care in or about the performance of his work. (c)Failure to take proper precautions for his own safety in the performance of his work. 83Each of those allegations are in general and non-specific terms. The plaintiff was carrying out his allotted work tasks as was required of him. In my view the evidence in this case does not reasonably permit a finding of contributory negligence against the plaintiff. Furthermore, notwithstanding the particularised plea of contributory negligence, the defendants raised no substantive arguments in support of such a finding. 84I therefore find that the pleaded allegations of contributory negligence have not been made out.

Disposition 85The plaintiff has succeeded on the issues of establishing that the territory of connection of his employment at the relevant time was the ACT. He has also established that his injury was relevantly caused by the negligence of his employers, Schofield Fencing, a partnership comprising Andrew Schofield and Bradley Smith. The defendants have failed to establish any of the required elements for the defence of contributory negligence. The plaintiff is therefore entitled to a verdict and judgment in his favour on each of the separate liability questions posed.

Costs 86Having succeeded on all of the issues for separate determination, the plaintiff is entitled to have his costs of determining those questions paid by the defendants on the ordinary basis, unless a party is able to demonstrate an entitlement to some other costs order.

Orders 87I make the following orders: (1)On the first question posed for separate determination, that at the time of the plaintiff's injury the territory of connection of the plaintiff's employment was the ACT; (2)On the second question posed for separate determination, verdict for the plaintiff on the issue of the negligence of Andrew Schofield and Bradley Smith, trading as Schofield Fencing; (3)On the third question posed for separate determination, the defendants have failed to establish any contributory negligence on the part of the plaintiff; (4)The defendants are to pay the plaintiff's costs incurred in connection with the determination of the separate questions, such costs to be paid on the ordinary basis, unless otherwise ordered; (5)During the current sittings of the Court in Wollongong the parties are to bring short minutes for the appropriate procedural directions now required in order to advance the next phase of the proceedings to finality; (6)Liberty to apply on 7 days notice if further orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2014

Workers' Compensation Act 1951(ACT)

Workers' Compensation Act 1987(NSW)

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