Falconer v Budget Garages (Australia) P/L & Anor [2003] QSC 148

SUPREME COURT OF QUEENSLAND CITATION: Falconer v Budget Garages (Australia) P/L & Anor [2003] QSC 148 PARTIES: KERRY ALAN FALCONER (plaintiff) v BUDGET GARAGES (AUSTRALIA) PTY LTD ACN 078 804 654 (first defendant) STRAMIT CORPORATION LIMITED ACN 005 010 195 (second defendant) FILE NO: 6922 of 2001 DIVISION: Trial Division PROCEEDING: ORIGINATING COURT: Supreme Court DELIVERED ON: 16 May 2003 DELIVERED AT: Brisbane HEARING DATE: 28-30 April 2003 JUDGE: Byrne J ORDER: CLAIM DISMISSED CATCHWORDS: TORTS – NEGLIGENCE – Independent Contractor – where plaintiff fell on building site, carrying purlins down slope - where no breach of duty of care COUNSEL: M W C Harrison for the Plaintiff P D Lane for the First and Second Defendants SOLICITORS: Shine Roche McGowan for the Plaintiff Gadens for the First and Second Defendants [1] Miss Badham owns land at Mt Tamborine. Three years ago, she engaged the first defendant (“Budget”) to supply the materials for, and to build, a three car garage on her land. Budget subcontracted part of the work to the plaintiff: construction of the garage with the materials Budget was to arrange to be delivered to the property. [2] On 15 July 2000, the plaintiff, then in his mid-thirties, suffered an injury to his right ankle and abrasions when he slipped and fell at the site. At the time, he was carrying two, 9m long metal purlins, each weighing about 11kg, and was assisted by his workmate, Sean Smith. The two men had collected the purlins from higher up on Miss Badham’s land where the building materials had been left by a carrier engaged by Budget. From there, the men – one at each end of the purlins – walked down a -- 1 of 6 -- 2 formed, dirt path, heading towards a lower area where the slab had been poured and part of the garage constructed. During this journey, the plaintiff lost his footing, fell awkwardly, and sustained his injuries. [3] The plaintiff claims that his fall resulted from a breach by Budget of a duty of care owed to him under the general law. 1 In essence, his case is that he was told by Mr Norton, who controlled Budget, to carry the purlins down the path. This is said to have been a dangerous activity because of the gradient and condition of the way. Budget’s case, in short, is that (i) no such direction was given; (ii) the path was safe for two men to carry a couple of the purlins; and (iii) the plaintiff, an independent contractor, himself decided that he and Mr Smith would carry the purlins down the path. [4] The path was part of a “ring road” that permitted a vehicle to enter Miss Badham’s land at a high point, head downhill to slightly below the level on which the garage was to be constructed, and then to turn left to proceed uphill to exit the property. [5] The plaintiff gave this account of the circumstances surrounding his fall. Mr Norton, he said, told him to “grab some purlins”. The plaintiff objected that it was “too dangerous” to carry them down the path. Mr Norton said that if the plaintiff refused to carry the purlins down, he could “pack up his tools and piss off”. So despite his anxiety about the danger, he and Mr Smith walked to where the carrier had deposited the building materials. There they picked up two purlins, and set off down the path, the plaintiff in the lead, one purlin on each shoulder. This first trip was uneventful. At the slab, the purlins were passed to Mr Norton, who was standing on a ladder. Mr Norton screwed the purlins into the frame. Then he told the plaintiff to get more. [6] The plaintiff testified that he and Mr Smith retraced their steps, found two more purlins, and carried them down the path. About halfway down, the plaintiff was walking in the middle of the way when his “feet just went out from under me”. He slid over an embankment sustaining his ankle injury. [7] The main question in relation to liability is: did the path pose an unnecessary risk of injury to someone engaged in the task which the plaintiff and Mr Smith had in hand when the plaintiff fell? [8] The surface and other characteristics of the path were described in evidence in different ways. [9] The plaintiff spoke of the slope as “steep”. The surface, he said, was “slippery as hell”, being comprised of “little balls of grit – basically like a gravel but more dirt … like a mud gravel, balls of dirt … just dry dirt … dirt gravel … slippery … soft”. [10] Mr Smith considered that the “gravel” on the “ramp” was “quite loose and because of the slope you had to watch your footing … it was pretty slippery”. [11] Mr Norton, who had walked over the path, considered it safe, with a “quite firm” surface texture. 1 An alternative claim founded on an allegation of breach of statutory duty was abandoned. -- 2 of 6 -- 3 [12] Miss Badham, who is about 20 years older than the plaintiff, made several trips carrying building materials to the slab to keep them safe from thieves. Despite a quite steep gradient at the top, she had no difficulty negotiating the way carrying guttering and downpipes to a length of 4.5 metres and other things. She described the surface as “clay” with some “grass” which afforded a “solid footing”. She believes that the path afforded “quite smooth walking” and was “in excellent condition for a building site”. [13] Mr Coyne, who worked for Budget until April 2001, and who also had walked the way before 15 July, considered that two men ought to have been able safely to carry a couple of 9m purlins from the top area to the slab using the path. He thought the path surface was “like a gravel or dirt” which was in “good condition”, if somewhat “awkward” – presumably a reference to the gradient. [14] About three days after the fall, the plaintiff returned to the site with his wife and Mr Smith to take photographs. Some 2 show the path. They depict the gradient as appreciable. The dry surface presents as a little uneven, mainly due to vehicular tyre tracks. [15] The scene presented by the photographs seems more consistent with the impressions of those witnesses – Mr Norton, Miss Badham and Mr Coyne – who do not regard the path as having involved an impediment to the safe transportation of two 9m purlins in the way the plaintiff and Mr Smith carried them. [16] I prefer the evidence of Mr Norton, Miss Badham and Mr Coyne. On this basis, even if Mr Norton had directed the plaintiff to carry the purlins down the path, Budget would not thereby have exposed him to unnecessary risk of injury. No doubt carrying the purlins down the path called for care, as Mr Smith said. But no characteristic of the path posed an unreasonable or unnecessary risk of injury to either of the men in the task of carrying the purlins as they did. [17] Whatever view may be taken of the duty of care which a principal might owe to an independent contractor in respect of a worksite such as Miss Badham’s, 3 no breach of any such duty is established here. [18] That conclusion entitles Budget to judgment. For the sake of completeness, however, other factual disputes may as well be mentioned. [19] The plaintiff says that, at the site on the day of his accident and earlier, he had complained to Mr Norton that it was dangerous to carry the purlins by hand down to the slab. And he asserts that he had made the same point to Mr Coyne before the fall, eliciting the response that the purlins could be moved by vehicle. [20] According to Mr Norton, he came to the site on 15 July 2000 because of the lack of electric power, arriving to find that the partly completed shed had been blown down, apparently overnight. So he decided to help in the re-erection and the further construction of the garage, using a cordless drill. Mr Norton denies that he told the plaintiff to move the purlins, let alone directed him as to how they should be 2 Ex 5, 6 and 10. 3 With McDonnell v Hoffman [2000] QSC 054 [23]-[24], cf Rourke v Transtate Pty Ltd [2000] NSWSC 1020, [24]-[27]. -- 3 of 6 -- 4 transported to the slab. And he disputes that the plaintiff suggested to him at any time that the site was dangerous in any respect. [21] Mr Coyne did not accept that any site risk had been drawn to his attention or that he had canvassed with the plaintiff the possibility of moving the purlins mechanically. [22] I prefer the versions of Mr Norton and Mr Coyne. [23] The plaintiff is not a reliable historian. [24] In 1995, he suffered a neck injury while working in a steel foundry. In 1997, he instituted proceedings for damages for personal injuries allegedly sustained in that accident. Particulars in the plaint included: severe pain radiating from the back of the neck to the base of the head, numbness in both legs, pain in the hips, and headaches. It was also alleged in the pleading that he had suffered a chronic pain disorder which had given rise to somatoform pain disorder. He was treated by a psychiatrist, Dr Mulholland. He was prescribed tranquillizers and anti-depressants. He saw two orthopaedic surgeons. [25] Yet four medical specialists – two psychiatrists and two orthopaedic surgeons – who assessed the plaintiff for the purposes of the present litigation, and who testified to having asked him to relate his medical history, learned little or nothing of this. Other than a mention to Dr James Curtis, an orthopaedic specialist, of an injury to the cervical spine some 10 or more years ago from which, as Dr Curtis reported his understanding, the plaintiff “made a full recovery”, the plaintiff omitted to tell any of these four specialists of the 1995 accident or its consequences. [26] These multiple occasions of dishonesty4 no doubt reflect the plaintiff’s anxiety to make the most of his right ankle injury. But his dissembling did not end at the courtroom door. One clear illustration is that his testimony was in conflict, and in more than one respect, with the diary note-assisted recollection of Miss Badham. [27] An assessment of the controversial aspects of the plaintiff’s evidence must be approached sceptically. Indeed, my impression of his veracity is so adverse that I would not be inclined to accept his evidence on any contested matter, at least in the absence of acceptable support in independent testimony. [28] Corroboration of part of the plaintiff’s account of his fall was said to be found in the evidence of Mr Smith. By mid-July 2000, he had been working with the plaintiff for a few months, being trained in method of building sheds and garages. The plaintiff paid him a small amount for this assistance in his construction business. [29] Mr Smith recalls that no power was available on site the day the plaintiff fell. This posed problems in re-erecting the garage after it had been blown over the previous night. Mr Smith seems to remember the plaintiff telephoning Mr Norton to tell him that work on the garage could not continue, and he thinks Mr Norton brought cordless drills to the site. [30] Asked whether he could recall a conversation involving Mr Norton the morning the plaintiff fell, Mr Smith said that Mr Norton did not give instructions about how to “cart” the purlins down, that the only way to get them to the slab was to carry them, 4 The plaintiff was cross-examined on the evident assumption that he had sustained the injuries – physical and mental – alleged. -- 4 of 6 -- 5 one or two at a time, and that is what he and the plaintiff proceeded to do. Pressed to say whether he could remember any conversations between the plaintiff and Mr Norton that morning, Mr Smith at first replied, “Not really, no”. Invited to recall any “argument” between Mr Norton and the plaintiff, he said that the plaintiff had mentioned that he did not want to carry the purlins down, because “it was too dangerous”, and told Mr Norton that the carrier should come by and leave the materials near the slab. 5 [31] It emerged later in Mr Smith’s evidence, however, that he personally had not spoken to Mr Norton about the purlins, and, more importantly, that he heard only “parts” of what had passed between Mr Norton and the plaintiff. [32] Mr Smith also accepted that he found the conversations difficult to remember, and he acknowledged that his memory was quite vague concerning the matter. [33] In the circumstances, Mr Smith’s testimony is not a satisfactory basis for a conclusion that the plaintiff had broached the carriage of the purlins with Mr Norton, let alone that he had objected that carrying them down the path was risky. [34] In short, Mr Norton is not proved to have told the plaintiff to carry the purlins. The plaintiff, more probably than not, made that choice for himself. In any event, as I have said, a decision to carry the purlins in the method adopted did not involve exposure to unnecessary risk of injury. [35] Only two components of the damages are in contest: pre-trial gratuitous assistance and pre-trial economic loss. [36] The plaintiff gave an exaggerated account of the level of assistance provided by his partner, Miss Martin. She testified, much in generalities, about the things she has done for him and around the house property since the fall. She helped with his personal hygiene affairs and by carrying out household chores which formerly he undertook. [37] In the eight weeks or so when the plaintiff was in plaster, no doubt he needed, as Miss Martin has said, her help to some extent. And since then, it seems likely that she has assisted him in other ways. [38] The rate is agreed at $12 per hour. [39] In view of the less than satisfactory quality of the evidence to support the claim, no more than an average of two hours a week should be allowed over the entire period since the fall. [40] The parties are not far apart in relation to the pre-trial economic loss component. The plaintiff claims $20,000; the defendant concedes $16,000. [41] The plaintiff has returned to remunerative work after a period of convalescence. His prior work history had been somewhat erratic. 5 Miss Badham had not informed the plaintiff that she had taken the materials to the slab. He and Mr Smith laboured under the misapprehension that the carrier had deposited them there. -- 5 of 6 -- 6 [42] Two different approaches for assessing the pre-trial loss are advanced. 6 Had it been necessary to decide this quantum issue, I would have been disposed to accept the submissions from Budget: see p 1 of Ex 23. [43] The claim against the second defendant, the carrier, was discontinued. [44] The claim against Budget is dismissed. 6 See Exs 23 and 24. -- 6 of 6 --