Drummond v Gunne Constructions Pty Ltd [2013] QDC 43

DISTRICT COURT OF QUEENSLAND CITATION: Drummond v Gunne Constructions Pty Ltd [2013] QDC 43 PARTIES: MARK ROBERT DRUMMOND (plaintiff) V GUNNE CONSTRUCTIONS PTY LTD (defendant) FILE NO/S: 4873/11 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 22 March 2013 DELIVERED AT: Brisbane HEARING DATE: 11 - 14 December 2012, final written submissions received 21 January 2013. JUDGE: Kingham DCJ ORDER: 1. The claim is dismissed. 2. The plaintiff must pay the defendant’s costs of and incidental to these proceedings, assessed on the standard basis. CATCHWORDS: WORKERS’ COMPENSATION – LIABILITY FOR COMPENSATION – LIABILITY OF EMPLOYER – INJURY IN THE COURSE OF EMPLOYMENT - where the plaintiff claimed he was injured in the course of his employment with the defendant – where the plaintiff was injured on a Sunday – where the defendant denied knowing of or paying the plaintiff to work on the Sunday – where the defendant had treated the injury as work related in dealings with WorkCover Queensland WORKERS’ COMPENSATION – LIABILITY FOR COMPENSATION – LIABILITY OF EMPLOYER – EMPLOYER’S DUTY OF CARE – BREACH OF DUTY OF CARE – whether the defendant had breached its duty of care by knowingly failing to provide the defendant with assistance in rolling a concrete pipe – whether the defendant had breached its duty of care by adopting an unsafe system of work -- 1 of 14 -- 2 Workers’ Compensation and Rehabilitation Act 2003, s 305B, s 305D, s 305E McLean’s Roylen Cruises Pty Ltd v McEwan [1984] 58 ALJR 423, applied McLean v Tedman (1985) 155 CLR 306, applied COUNSEL: J P Kimmins for the plaintiff S T Farrell for the defendant SOLICITORS: Carew Lawyers for the plaintiff Bruce Thomas Lawyers for the defendant Introduction [1] Gunne Constructions is a civil engineering firm which undertakes drainage works, amongst other construction activities. Mark Drummond worked for Gunne, first as a labourer and later as a machinery operator. Mr Drummond claimed he injured his back in the course of his employment and seeks compensation from Gunne. [2] Mr Drummond said the injury occurred when he rolled a large and heavy concrete drainage pipe at Gunne’s depot at Willawong. Noel Gibb, a director of Gunne, had earlier instructed Mr Drummond to assist Mr Gibb’s neighbour, John Thompson, to construct drainage works on Thompson’s farm. As a favour between neighbours, Mr Gibb did not charge Mr Thompson for the work. In order to complete it, Mr Drummond needed to cut and load a piece of concrete drainage pipe. This is what he was doing on Sunday 18 July 2010, when he injured his back. [3] Gunne denied the injury occurred in the course of Mr Drummond’s employment. It alleged Mr Drummond had struck a private arrangement with Mr Thompson to work that weekend without pay. In return for this, Mr Thompson had agreed to construct a set of drawers for Mr Drummond’s utility. Mr Drummond denied the alleged agreement. He said he attended on Sunday with Mr Gibb’s knowledge and on his instructions to finish the work over the weekend. [4] Mr Drummond said Gunne breached its duty of care to him as its employee by not providing him with assistance to roll, cut and load the pipe. Alternatively, Mr Drummond claimed he used the usual system of work employed by Gunne for rolling pipes: that is that only one person would roll a pipe in order to cut or sling it for loading. [5] Gunne denied that was its system of work. It claimed rolling a concrete pipe was a two person job. Even if Mr Drummond did have to roll the pipe alone, Gunne said Mr Drummond had not proved such a method was necessarily unsafe. Further, it claimed Mr Drummond substantially contributed to his injury because he could have used other means to avoid or reduce the risk of injury. [6] After a week of sick leave, Mr Drummond returned to work. He left Gunne some months later because, he said, he was not given suitable light duties. Gunne claimed Mr Drummond had a pre-existing degenerative back condition that rendered him -- 2 of 14 -- 3 more vulnerable to injury and contributed to his current level of impairment. Although he had experienced previous bouts of back pain, Mr Drummond denied they had any bearing on the 2010 injury or his current level of impairment or disability. He argued the assessment of his damages should not be affected by the previous incidents. [7] The following issues arise in this case: 1. Was Mr Drummond injured in the course of his employment with Gunne? 2. Did Gunne breach its duty of care to Mr Drummond as its employee either by not providing assistance on the day of the injury or because its system of work was unsafe? 3. Did Mr Drummond contribute to his injury? 4. Did Mr Drummond have a pre-existing back condition? 5. How should damages be assessed? [8] If I do not find in Mr Drummond’s favour on the first two questions, which determine whether Gunne bears any liability for Mr Drummond’s injury, the last three questions do not need to be addressed. 1. Was Mr Drummond injured in the course of his employment with Gunne? [9] To succeed in his claim, Mr Drummond must establish, on the balance of probabilities, that the injury occurred in the course of his employment. [10] Mr Drummond alleged he was doing the work that he was required to undertake pursuant to his employment with Gunne. He alleged Mr Gibb knew he had to cut and load a pipe that weekend and instructed him to do so, without providing assistance. He thought he was paid to work that day and Gunne had treated the injury as a work related injury when he made a WorkCover claim. [11] Gunne alleged Mr Drummond sustained his injury while performing a task outside the employment relationship and pursuant to a discrete agreement with Mr Thompson to complete the work on the farm over the weekend. (1) (a) Was Mr Drummond undertaking work he was instructed to do? [12] Although Mr Drummond, Mr Gibb and Mr Thompson differed in their evidence about when work started and which days Mr Drummond worked on the farm, it is common ground that he was initially directed to work on the farm by Mr Gibb and paid by Gunne for at least some of his time on that job.1 Further, there is no dispute that the pipe Mr Drummond collected on Sunday was needed to complete the work.2 1 Transcript 1-76; 2-74; 2-76; 2-86; 4-7; 4-8; 4-9; 4-16 2 Transcript 2-87 -- 3 of 14 -- 4 [13] Counsel for Mr Drummond queried how he could be working within the employment relationship for some, but not all of the work he did on Thompson’s farm. Mr Drummond was engaged in an activity which directly related to work allocated to him in the course of his employment with Gunne. The payroll records indicate that weekend work was not unusual. Gunne did not instruct Mr Drummond he must not work on a weekend without specific authority. Indeed, Mr Gibb accepted that Mr Drummond may have commenced work on the Thompson farm on Saturday 10 July, a week before the injury.3 [14] I am satisfied that Mr Drummond was engaged in an activity directly related to the work he was assigned to do by Mr Gibb on Thompson’s farm. (1) (b) Did Gunne pay Mr Drummond to work on Sunday 18 July? [15] Mrs Gibb is a director of Gunne and keeps its books and accounts. She was asked about the payroll record for the week in which Mr Drummond was injured.4 Although the record showed the week to run from 13 to 19 July 2010, Mrs Gibb said this was a fault in the software program and that it should have read from 15 to 21 July 2010, because the pay week ran from a Thursday to the following Wednesday. The entries before and after that week are consistent with that explanation and neither party submitted anything turned on the error. [16] Mrs Gibb said Gunne workers usually did some overtime most days, although, around the time of the injury, Gunne’s major job at the RAAF base at Amberley was suspended and its workers were helping out on the Gibb farm to keep them employed. However, their overtime was reduced. When they were on a job, the usual work day during the week was 9.5 hours; 7.6 hours paid at the base rate and 1.9 hours paid at 1.5 times the base rate. [17] The entry for the week Mr Drummond was injured recorded that he was paid 15.2 hours at the base rate and 3.8 hours at time and a half. Mrs Gibb interpreted this to mean he had worked 2 days for the usual hours (15.2 hours = 7.6 hours x 2 days; 3.8 hours = 1.9 hours x 2 days). Mr Drummond was also paid 22.8 hours of sick leave that week at the base rate (22.8 hours = 7.6 hours x 3 days).5 That accords with Mr Drummond’s evidence that he was off work for a week after the accident, and therefore would not have been working from Monday until the end of that pay week. [18] Counsel for Mr Drummond suggested the 3.8 hours paid at time and a half that week related to work on the Sunday. Mrs Gibb rejected that proposition.6 She said any time worked on a Sunday was paid at 2 times the base rate. There was no entry for pay at that rate in that pay cycle. [19] I accept Mrs Gibb’s evidence, that the payroll records establish that Mr Drummond was not paid to work on Sunday 18 July 2010. 3 Transcript 2-76 4 Exhibit 2, document 2 – Payroll Advice entry for the period 1/7/10-12/4/11 at p 61. 5 Transcript 3-6 6 Transcript 3-13; 3-14 -- 4 of 14 -- 5 [20] During his cross-examination of Mr Drummond, counsel for Gunne proposed that Mr Drummond was not paid because he made no claim for that work and the reason he had not done so was that he had worked under a side agreement with Mr Thompson. [21] Mr Drummond initially said he could not remember whether he was paid to work that day. When pressed, he was insistent he had a specific recollection that he did not receive a pay slip for the week.7 This specific recollection, emerging as it did during cross-examination about not seeking payment for Sunday work, is unconvincing. [22] Mr Drummond was off work and medicated for pain he described as excruciating when the pay slip was due.8 He was unable to recall other personally significant events, such as the date of his wedding, which occurred only a month before the injury.9 In the absence of any particular reason to recall this relatively unremarkable event, it is highly improbable he would have the recollection he claimed to have. His insistence he did reflects on the credibility of his evidence generally. [23] Nevertheless, that has not led me to draw an inference that Mr Drummond worked on the weekend under an agreement with Mr Thompson. Mrs Gibb attributed the information used to prepare the payroll record to either her husband or their son Liam, because Mr Drummond was on sick leave.10 Given Mr Drummond was medicated for excruciating pain, it is possible that he did not check or did not appreciate he had not been paid for that day’s work. (1) (c) Did Gunne treat Mr Drummond’s injury as a work related injury in his WorkCover claim? [24] I am satisfied that Gunne did treat the injury as a work related one in its dealings with WorkCover Queensland. Mrs Gibb signed two forms in relation to the injury.11 She was insistent she would not have signed blank forms. She identified which sections she had filled in and thought other parts, including the date of the injury, were in Mr Drummond’s handwriting.12 She recalled Mr Drummond telling her he wanted to recoup hospital or doctor expenses.13 [25] Although Mrs Gibb said she could not remember reading the date of the injury,14 she did recall seeing Mr Drummond in pain on the Monday. 15 This suggests that, at the time she signed the forms, she knew the claim related to work Mr Drummond was doing on the Thompson farm. [26] Less than a week after she signed the forms, Mrs Gibb spoke to Ms Dos Remedios, a senior customer adviser with WorkCover Queensland. Ms Dos Remedios had no independent recollection of her conversation with Mrs Gibb but said her note would 7 Transcript 1-70; 1-71 8 Transcript 1-36 9 Exhibit 8; Transcript 2-4 (on 12 June 2010) 10 Transcript 3-6; 3-13 11 Exhibit 2 pp85 – 88 12 Transcript 3-9; 3-10; 3-15 13 Transcript 3-7; 3-8 14 Transcript 3-13 15 Transcript 3-7 -- 5 of 14 -- 6 have been a summary of the substance of their discussion.16 She recorded that Mrs Gibb confirmed that this is definitely a WRI (work related injury). She agreed Mrs Gibb may not have used that precise term. [27] Mrs Gibb described the relations with Gunne workers as like family. She agreed that in her conversation with Ms Dos Remedios she would have backed Mark up.17 [28] Given that evidence, it is reasonable to infer that Mrs Gibb knew Mr Drummond’s claim related to an injury sustained on Sunday 18 July and viewed it, then, as an injury that occurred in the course of his employment. (1) (d) Did Mr Gibb instruct Mr Drummond to work on Sunday or know that he would do so? [29] Mr Drummond said he spoke with Mr Gibb on Friday afternoon at about 4.30 or 5pm and told him that a further half pipe was needed to complete the work. He said Mr Gibb wanted him to get the pipe on the Friday afternoon but he responded that it would take too long given the traffic. Mr Drummond said he told Mr Gibb that he would get the pipe on the weekend, but not on Saturday as he and his wife had plans. He said Mr Gibb told him to finish the job because he was needed to work at the RAAF base on the Monday.18 [30] Mr Gibb denied knowing or instructing Mr Drummond to work on the weekend. Had he known, he said he would have organised assistance. Mr Gibb said there was no urgency about the work. He said he went to Thompson’s farm on Friday, but not for very long. He could not remember what time of day he was there and conceded that it could have been at 4.30 or 5pm. When he was there all the pipes were in the ground and all that was left was to spread some gravel.19 He might have helped lay a pipe and said an earlier statement he made which described work “we” undertook was wrong, if it meant that he had done any substantial work on Thompson’s farm that Friday.20 He also accepted he might have had a conversation with Mr Drummond about a cross-over for a driveway, but remained firm that there was no conversation about needing a further half pipe to finish the work.21 [31] Mr Gibb told a WorkCover investigator there was no urgency about finishing the job on Thompson’s farm because there was no job for Mr Drummond to go to on Monday, the RAAF base job having been suspended. However, Mr Drummond produced evidence which placed both Mr Drummond and Mr Gibb at the RAAF base on Monday 19 July, it seems for a period of about 4 hours. During that time, Mr Drummond said he did some excavation work around an old well found on the base. [32] Mr Drummond said he made a call to Mr Gibb’s mobile from the entrance to the RAAF base, because he needed him to authorise a pass to access the base. 16 Exhibit 6; Transcript 1-15 17 Transcript 3-7; 3-11; 3-14 18 Transcript 1-32; 1-80 19 Transcript 2-51; 2-26; 2-76; 2-79 20 Transcript 2-77 21 Transcript 2-50; 2-52; 2-80 -- 6 of 14 -- 7 Mr Drummond’s telephone records for that day show that he made a call to Mr Gibb’s mobile phone shortly before 7 a.m.22 The origin of the call is recorded as Ipswich. Although evidence was not called to establish that a call from the entry to the base would be recorded at Ipswich, Amberley is near Ipswich, so that seems likely. [33] Mr Drummond also tendered a RAAF base pass issued for the day on 19 July23and a photograph of Mr Gibb which he said he took at the base.24 He said he took the photo, in humour, to send to someone who was calling him about a problem on another job that Mr Gibb had to deal with. He said he sent the photo so that person would recognise the person he had to talk to. [34] This explanation is somewhat incongruous with Mr Drummond’s account that he took the photo at around the time he was telling Mr Gibb that he was in so much pain he could not continue working. Mr Drummond said a map derived from his smart phone records proved the photo was taken in that vicinity at 10.42am that day.25 There is nothing to challenge the accuracy of that data. [35] Mr Gibb said the RAAF base job had been suspended when Mr Drummond was working on Mr Thompson’s farm. An archaeologist was investigating an old well found on the base before excavation around the well could continue.26 He agreed he probably would have been at the RAAF base some time on Monday 19 July, because he was there most mornings, even when the contract was suspended.27 [36] He could not say if Mr Drummond attended the RAAF base on Monday 19 July and, if he did so, why. He could not recall who did the excavation work around the well or when it was done, but denied it was Mr Drummond. He was certain that he and his wife saw Mr Drummond some time on Monday morning at their farm. He described Mr Drummond as being in so much pain that he could not get out of the work vehicle.28 This is consistent with Mr Drummond’s account of how disabling the pain was when he stopped work on the Monday. Mrs Gibb gave evidence that she saw Mr Drummond in pain at their farm on Monday, but could not say at what time.29 [37] I accept both men were at the RAAF base on Monday morning. Mr Gibb’s statement about the RAAF job30 was not made until 31 October 2011, some 15 months after the injury and in response to Mr Drummond’s assertion there was a need to finish Thompson’s job that weekend. The fact that Mr Gibb was wrong in that explanation does not mean that his evidence about the conversation the Friday before is inaccurate and should be rejected. On that matter, I prefer the evidence of Mr Gibb over that of Mr Drummond, for the following reasons. [38] Mr Gibb made concessions when presented with evidence that challenged his recollection or when reasonable propositions were put to him. As well as conceding 22 Exhibit 2 p16 23 Exhibit 2 p8 24 Exhibit 2 p9 25 Exhibit 2 pp 10-11 26 Transcript 2-84 27 Transcript 2-83 28 Transcript 2-53 29 Transcript 3-7 30 Exhibit 16 -- 7 of 14 -- 8 his recollection about the RAAF job might have been wrong, he made concessions about critical facts, such as whether he had ever seen a Gunne employee roll a concrete pipe on their own.31 Mr Gibb’s concession that what he described as Gunne’s usual system for rolling pipes was not necessarily followed 100% of the time demonstrated his willingness to give a truthful account, even if it might possibly damage the defence case. [39] On the other hand, Mr Drummond insisted that in all his time as a Gunne employee he had never seen a pipe being rolled by more than one person.32 This seems improbable, even if Gunne’s usual system was for one person to roll a pipe. [40] Earlier in these reasons, I questioned Mr Drummond’s credibility, given his evidence he could specifically recall not getting a pay slip for that week. In a similar vein, Mr Drummond rejected, as inaccurate, notes made by a number of health practitioners about what he had told them about prior incidents of back pain or about his condition when examined.33 This is not to say that Mr Drummond was deliberately untruthful in his evidence about those conversations, simply that his recollection is not necessarily reliable. [41] More troubling was that he would not concede that notes made by the practitioners during or shortly after their consultation with him might be more accurate than his recollection, unassisted by any contemporaneous note. This illustrates his tendency to be dogmatic, even in the face of evidence that contradicted his memory, particularly if it seemed to be adverse to his case. [42] There is also other evidence, which I do accept, which supports Mr Gibb’s evidence. Mr Thompson said the need for a further piece of pipe did not become evident until after Mr Drummond left the farm, he thought on the Saturday. He was firm in his evidence that Mr Gibb did not take part in his conversation with Mr Drummond about the final piece of pipe.34 [43] Counsel for Mr Drummond suggested in his written submissions that there had been collusion between Mr Thompson and Mr Gibb about their evidence. This serious allegation was not put to either Mr Gibb or Mr Thompson, nor did the evidence suggest that was so. Mr Thompson and Mr Gibb gave conflicting accounts of what work was done on the farm and when, which would be unlikely if they had colluded. [44] Further, Mr Thompson’s evidence about his discussions with Mr Drummond that weekend did not support Gunne’s case that he had a side agreement with Mr Drummond to work that weekend. [45] I reject the allegation of collusion as being without foundation. Although I found Mr Thompson to be somewhat unreliable in his recollection of the days on which the works proceeded, I have no reason to doubt his honesty and accept his evidence that Mr Gibb was not party to any discussion about the further piece of pipe before it was collected by Mr Drummond. 31Transcript 2-61 - 65. 32 Transcript 1-24; 1-58; 1-61; 1-81; 1-84 33 Transcript 1-93; 1-95; 1-97; 1-99 34 Transcript 4-9; 4-20 -- 8 of 14 -- 9 [46] Further, I am satisfied that, had he known, Mr Gibb would have arranged assistance for Mr Drummond. This is what he did when he sent a worker with Mr Drummond to collect the pipes for the Thompson job at the commencement of the works.35 Mr Stafford also gave evidence that there were other options, including waiting until the Monday morning when a number of people had to drive past the depot in order to get to work.36 Mr Drummond was, no doubt, well intentioned in collecting the pipe on the Sunday, but, on his version of events, there was no need to collect it that day. He did not intend to drop the pipe over to the Thompson farm until the Monday, in any case.37 [47] On an assessment of all of the evidence, I am not satisfied Mr Gibb instructed Mr Drummond to work on Sunday or that he knew that Mr Drummond intended to cut and load a concrete pipe that weekend. (1) (e) Did Mr Drummond have a side agreement with Mr Thompson? [48] Gunne alleged Mr Drummond agreed with Mr Thompson that he would work without pay on the weekend in return for Mr Thompson constructing a set of drawers for Mr Drummond’s utility. 38 [49] In his evidence, however, Mr Thompson resiled from an earlier written statement in which he made a claim to that effect. He said Mr Drummond asked if he would help him with some welding work. However, Mr Thompson denied discussing being paid by Mr Drummond to do the work or that the welding work was in return for Mr Drummond’s work on his farm.39 Mr Drummond also denied there was such an agreement. [50] Although Mr Thompson did construct a set of drawers for Mr Drummond and Mr Drummond did not pay him for them, given Mr Thompson’s evidence about the matter, I am not satisfied those facts establish the side agreement pleaded by Gunne. (1) (f) Conclusion on question 1 [51] Mr Drummond was engaged to work on the Thompson farm as an employee of Gunne. Although I am not satisfied that Mr Gibb instructed Mr Drummond to work on the weekend, or knew that he would do so, there is no dispute that a further piece of pipe was required to complete the job. Although Gunne did not pay Mr Drummond for that work, it did treat the injury as a work related injury. I am not satisfied Mr Drummond worked on the Sunday pursuant to a discrete side agreement with Mr Thompson. On the accumulation of those factual findings, I am satisfied the injury did occur in the course of Mr Drummond’s employment by Gunne. 35 Transcript 2-76 36 Transcript 3-52 37 Transcript 1-33; 1-70; 1-80 38 Defence [6](i)(i) 39 Transcript 4-22; 4-23 -- 9 of 14 -- 10 2. Did Gunne breach its duty of care to Mr Drummond as its employee either by not providing assistance on the day of the injury or because its system of work was unsafe? (2) (a) the legal principles and Mr Drummond’s case [52] It is the duty of the employer to take reasonable care to avoid exposing the employee to unnecessary risk of injury.40 This includes an obligation to establish, maintain and enforce a safe system of work.41 The Workers’ Compensation and Rehabilitation Act 2003 provides that certain principles apply to injuries which occur after 1 July 2010. The relevant principles may be shortly stated, for the purposes of this case, by the following propositions: [53] Firstly, Gunne will not have breached its duty to take precautions against a risk of injury to Mr Drummond unless: (a) the risk of injury was foreseeable (i.e. Gunne knew or ought reasonably to have known of the risk); (b) the risk was not insignificant; and (c) in the circumstances a reasonable person in Gunne’s position would have taken precautions bearing in mind: (i) the probability of the injury occurring; (ii) the likely seriousness of the injury; and (iii) the burden of taking precautions to avoid the risk of injury. (s305B) [54] Secondly, in determining Gunne has breached its duty, the court must be satisfied:  that the breach was a necessary condition of causation of the injury (factual causation); and  it is appropriate for Gunne’s liability to extend to the injury so caused (scope of liability).(s305D) [55] Thirdly, Mr Drummond bore the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. (s305E) [56] Mr Drummond’s case for breach of duty of care was framed in the alternative. One basis for liability required the finding that Mr Gibb knew Mr Drummond was retrieving part of a pipe on the Sunday. I have already given my reasons for not making that finding, and will not consider that question further. [57] The other basis for liability alleged was that Mr Drummond followed Gunne’s usual system of work for rolling pipes, which was unsafe, because Gunne either required or allowed employees to roll a pipe without assistance. Gunne denied it required or allowed this but, in any case, submitted Mr Drummond had not established that such a system was unsafe. 40 McLean’s Roylen Cruises Pty Ltd v McEwan [1984] 58 ALJR 423 at [8] 41 McLean v Tedman (1985) 155 CLR 306 at 313 -- 10 of 14 -- 11 [58] The issues, then, are whether the method used by Mr Drummond that day to roll the pipe was Gunne’s usual system and, if so, whether that system was unsafe. (2) (b) What was Gunne’s usual system of work for rolling concrete pipes? [59] Mr Drummond and his brother Matthew Drummond both gave evidence that the usual system was that only one person would roll a pipe of the dimension involved in this case.42 However, the preponderance of the evidence indicates the usual system of work employed by Gunne was to use two people to roll such pipes. Evidence to that effect was given by Mr Gibb43, Mr Stafford44 and Mr Dunn45. [60] I prefer the evidence given by Gunne’s witnesses on this issue for a number of reasons. (i) The Notice of Claim for Damages [61] Mr Drummond signed a Notice of Claim for Damages which, I infer, supports the evidence given by Gunne’s witnesses. The Notice includes the statement: “The task of rolling the pipe is one which is generally undertaken by more than worker.” [62] Counsel for Gunne suggested to Drummond that either “a” or “one” is missing from the sentence. If that addition were made, Mr Drummond’s statement supports Gunne’s case about its usual system of work. Mr Drummond rejected that suggestion and said it was a misprint and should have read “one worker” rather than “more than worker”.46 [63] The interpretation that Mr Drummond wished to place on the statement diametrically changed its meaning. On the other hand, the addition of either word “a” or “one” fits comfortably with the sentence as it stands and completes it. I reject the argument that the sentence is unintelligible and accept that it should have read more than one worker. [64] Mr Drummond has limited education and literacy skills, and his counsel argued he was unlikely to have read and understood the Notice. Accepting that is true, Mr Drummond was taken through the form and agreed that it was prepared on his instructions. In the absence of any explanation for such a critical misstatement, I infer the Notice reflects the instructions Mr Drummond gave to the person who prepared the Notice. Those instructions would appear to be consistent with the evidence given by Gunne’s witnesses, that the usual system of work involved two people, not one. (ii) Mr Drummond’s tendency to improve his evidence under challenge [65] I formed the view that Mr Drummond was prone to improve his evidence to suit his case when challenged under cross examination. I have already adverted to his evidence of whether he received a pay slip for the relevant week. Another example 42 Transcript 1-58; 1-107 – 1-108 43 Transcript 2-55; 2-65; 2-67; 2-94 44 Transcript 3-45; 3-56 45 Transcript 4-30; 4-32 46 Transcript 1-86 -- 11 of 14 -- 12 is his evidence that he had complained to Mr Gibb about the Gunne system for rolling pipes and that Mr Gibb had said something like If you don’t like it, move on.47 Mr Drummond did not give this evidence in chief, nor had this been raised earlier in the proceedings. Rather, it emerged during cross-examination about the system of work when he asked why he had not complained about it. (iii) Mr Gibb’s willingness to concede reasonable propositions [66] While Mr Drummond was dogmatic that only one person ever rolled a pipe, Mr Gibb was willing to concede that Gunne’s usual system of work was not always followed, although departures were rare; he thought 1 in 100.48 He also agreed that he had, himself, rolled such a pipe alone.49 Common sense tells us that, whatever the usual method might be, it is unlikely that it will be followed on every occasion. Mr Gibb’s willingness to concede this suggests his evidence, generally, is credible. (iv) The conflict between Mr Drummond’s evidence and Mr Stafford’s [67] Mr Drummond gave evidence about matters involving Adam Stafford, which Mr Stafford either did not support or contradicted. Mr Drummond said that Mr Stafford was present on an occasion when a worker named Joel came over to give Mr Drummond a hand to roll a pipe while they were working on a job at the Sleeman Centre. He said Mr Gibb specifically directed Joel not to assist.50 Mr Gibb specifically denied this, as well as denying giving a similar instruction on an earlier occasion.51 Mr Stafford recalled working with Mr Drummond at the Sleeman Centre and recalled the name of the other worker. However, he did not recall the incident Mr Drummond described.52 [68] Mr Drummond also gave evidence that Mr Stafford had told him that he injured his back rolling a stormwater pipe when working on a job at Boggo Road in 2008.53 Mr Stafford agreed he injured his back in 2008, although he wasn’t sure it was on the Boggo Road job. He denied it occurred rolling a pipe. It happened, he said, while he was shovelling some dirt. He hit a rock with the shovel and pinched a nerve in his back.54 (v) Mr Dunn’s evidence [69] Mr Dunn, who trained Mr Drummond, denied ever instructing Mr Drummond that the usual method of work was for only one worker to roll the pipe. He described the same work method for manually rolling pipes as Mr Gibb and Mr Stafford did: that is, that two people were used.55 Mr Drummond tendered photos he said he took when he laid his first pipes with Gunne.56 One shows Mr Dunn standing in a trench alone. During his evidence this photo was put to Mr Dunn as suggesting that only two people were engaged that day: he and Mr Drummond. Mr Dunn rejected that 47 Transcript 1-65 48 Transcript 2- 61 - 65 49 Transcript 2-70 50 Transcript 1-25 51 Transcript 2-58 – 2-59; 2-73 52 Transcript 3-58 53 Transcript 1-104-105 54 Transcript 3-53 55 Transcript 4-28 – 4-31 56 Exhibit 2 p6 -- 12 of 14 -- 13 proposition and suggested that the third person who connected the pipe might have been out of the camera range.57 I accept that is a probable scenario. (vi) Matthew Drummond did not support his brother’s evidence that Gunne instructed employees not to use more than one person to roll a pipe [70] Although Mr Drummond was supported to some extent by his brother’s evidence, Matthew Drummond agreed Gunne did not instruct its workers that they must not use more than one person to roll a pipe. (vii) Mr Drummond’s evidence that an excavator operator would not assist the person rolling a pipe is improbable [71] Finally, each of the Gunne witnesses rejected the proposition that the excavator operator would remain in the vehicle while a worker rolled a pipe alone. Mr Drummond said this is what he was told to do. He and his brother both agreed there would be nothing stopping the excavator operator from assisting and Mr Drummond’s brother agreed they were not instructed they must not assist.58 Mr Drummond offered no reasonable explanation for why the excavator operator could not assist. Although it might inconvenience that worker, it would not delay works as the operator could do nothing until the pipe had been rolled on to the sling for loading, in any case. I find Mr Drummond’s description of the usual system of work to be improbable. [72] Accordingly, I am not satisfied, on the balance of probabilities, that the usual system of work was that only one person would roll a drainage pipe of the dimensions of the pipe involved in this case. (2) (c) Conclusion on question 2 [73] I have found that the usual system of work employed by Gunne to roll concrete pipes involved two people. In rolling the pipe on his own, Mr Drummond was not employing Gunne’s usual system of work. I have found that Mr Gibb did not instruct Mr Drummond to undertake the task alone, nor was he aware of Mr Drummond’s intention to do so. Given those findings, there is no basis for concluding Gunne breached its duty to Mr Drummond by failing to take reasonable precautions against the risk of Mr Drummond injuring his back while rolling a pipe on his own. 3. Final conclusion and orders [74] Given Mr Drummond has failed to establish Gunne’s liability to compensate him for his injury, it is unnecessary to address the remaining issues which relate only to the assessment of damages. [75] I make the following orders: 57 Transcript 4-37 58 Transcript 1-110 -- 13 of 14 -- 14 1. The claim is dismissed. 2. Mr Drummond must pay the costs of Gunne Constructions Pty Ltd assessed on the standard basis. -- 14 of 14 --