Auswide Sales (Sunshine Coast) Pty Ltd v Fletcher Construction Australia Ltd & Anor [2001] QSC 45

SUPREME COURT OF QUEENSLAND [2001] QSC 045 File No 9836 of 2000 BETWEEN: AUSWIDE SALES (SUNSHINE COAST) PTY LTD (ACN 064 213 574) Plaintiff AND: FLETCHER CONSTRUCTION AUSTRALIA LIMITED (ACN 054 067 282) First Defendant AND: WACO KWIKFORM LIMITED (ACN 002 835 396) Second Defendant CONSOLIDATED WITH File No 9837 of 2000 BETWEEN: GRAHAM JOHN DAY Plaintiff AND: FLETCHER CONSTRUCTION AUSTRALIA LIMITED (ACN 054 067 284) First Defendant AND: WACO KWIKFORM LIMITED (ACN 002 835 396) Second Defendant MOYNIHAN J – REASONS FOR JUDGMENT DELIVERED ON: 27 February 2001 HEARING DATE/S: 12 – 14 February 2001 -- 1 of 8 -- 2 ORDER: Damages awarded to the first plaintiff in the sum of $29,240. Damages awarded to the second plaintiff in the sum of $25,000. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DAMAGE – Causation – Generally COUNSEL: Mr M Grant-Taylor for the Plaintiffs Mr P D Lane and Mr P Corkery for the Defendants SOLICITORS: O’Brien Solicitors for the Plaintiffs Deacons Lawyers for the Defendants [1] In these consolidated actions Graham John Day (Day) seeks damages for negligence or breach of duty as a consequence of injuries he suffered on 9 January 1997. The plaintiff Auswide Sales (Sunshine Coast) Pty Ltd (Auswide Sales) seeks damages for loss of Days’ services. [2] At the commencement of the trial, counsel of the defendants made an application to amend the defence to raise contributory negligence which was opposed. The plaintiffs had been advised of it a day or two before. I refused it. The application was renewed after the evidence was concluded. Apart from the case being virtually over nothing had changed. I refused that application. [3] The case is one where the mind of a competent practitioner ought to have turned to the issue of contribution at an early stage and taken the opportunity to consider and raise it in compliance with the Uniform Civil Procedure Rules 1999 if it was to be pursued. There was no attempt to explain why, notwithstanding the provisions of the UCPR 1999 and Practice Direction 4 of 2000, the plea was not raised in the original defence or in a timely way before trial. By the time the applications were made there had been an unsuccessful mediation and the defendants had answered -- 2 of 8 -- 3 interrogatories essentially establishing the plaintiffs’ liability case but not addressing contribution issues directly. When the point was taken that the counterclaim had not complied with R179, the counterclaim was abandoned. [4] The plaintiff Day has qualifications and experience in the construction industry and specifically, for present purposes, in respect of the waterproofing of buildings. He conducted a business in his own name on his own behalf before adopting a family trust structure, presumably for tax minimisation reasons. Auswide Sales was the trustee. Day and his wife, they have now separated, were its directors and Day its sole permanent employee, his efforts its sole source of income. In 1991 Auswide Sales entered into a contract to provide waterproofing for a resort project in Cairns being constructed by the first defendant Fletcher for which the second defendant Waco contracted to provide the scaffolding. [5] The project included the construction of four residential blocks each of four levels. During the construction stage scaffolding was erected around the perimeter of the blocks. The project was well advanced by 9 January 1997 and on that morning Waco was disassembling scaffolding associated with some of the blocks in preparation for removing it from the site. [6] At about 8.15 on that morning Day, who was aware in general terms that the disassembling was taking place, wished to move from one place to another across the site. The way he would ordinarily have taken was blocked by fabric mesh and associated warning signs relating to Waco’s activities. He therefore followed a route which took him through a ground floor unit of D block out onto an area conveniently described as a patio in front of the block. As he emerged he was -- 3 of 8 -- 4 struck on the left shoulder by an aluminium scaffolding plank dropped from above by Radecki, one of Waco’s workers engaged in disassembling the scaffolding. Radecki did not see Day until he had let go of the plank. The evidence establishes that the safe course was to pass the plank down to a worker waiting below and that dropping it is a dangerous course which should not have been followed. [7] Day’s evidence is that there were no warning signs or barriers to inhibit him following the particular route he took. That is supported by a contemporaneous incident record/report completed and signed by the workplace health and safety officer, an employee of Fletcher who was on the scene soon after the incident. That officer, Colin McHugh, was not called to give evidence. [8] My impression is that the evidence of the witnesses Radecki and Newman reflects a retrospective reconstruction of what they believed would (or should) have been the position rather than a reliable recollection of it. I also find it difficult to accept that Day chose to negotiate obstacles constituted by scaffolding, bars, ledges and the like described by the defendants witnesses to emerge where he did. He only had to move slightly to one side to have an unobstructed exit passage. [9] Notwithstanding the reservations I subsequently express about Day’s evidence on the damages issue, I find that there were no warning signs on barriers to deter Day from following the course he did. I also find that dropping the plank rather than passing it to another worker was an unsafe practice. [10] It is properly accepted by the defendants that Fletcher owed Day, as an employee of an independent contractor, a duty of care and that Waco owed him a duty as -- 4 of 8 -- 5 occupier of a worksite. The events being as I have concluded I am satisfied the defendants were in breach of their respective duties. [11] It is also accepted that both defendants were “employers” for the purpose of s 10 of the Workplace Health and Safety Act 1995. The plaintiff alleges a number of breaches of the Act, the defendants’ pleading does not raise the defences provided by s 37. The answers to interrogatories in conjunction with the other evidence to which I have referred found the conclusion that the defendants were in breach of their obligations under the Act. The defendants are therefore liable for the consequences of the plaintiff being struck by the plank. [12] Day’s left shoulder was struck by the end of the plank. No doubt the blow had the potential to inflict severe injury with potentially dire consequences. In fact Day was knocked down but apparently not out. He drove himself to the emergency department of the Cairns Base Hospital. There he complained of a painful left shoulder. On examination he had a full range of movement of the left shoulder and there was no neurovascular deficit. There was abrasion over the left supraclavicular region and the shoulder was painful on abduction to greater than 90 degrees. There was no fracture or dislocation. Day was diagnosed as having suffered a soft tissue injury, given analgesics and advised to rest. He declined to wear a sling which was recommended. [13] The significant aspect of Day’s damages case is that there is a casual relationship between his being struck by the plank and a propensity for his left shoulder to dislocate with long term consequences for his future pain, suffering, loss of amenities, work capacity and needs for treatment and support. -- 5 of 8 -- 6 [14] I am satisfied that Day’s left and right shoulders had a propensity to dislocate prior to 9 January 1997, this was probably as a result of congenital factors. He has given confusing, and on occasion conflicting, accounts of the history of dislocation of his shoulders both prior to and since the events of 9 January 1997 to various doctors and in evidence. His answers in cross-examination directed to these issues, on occasion, may fairly be described as at least evasive. The view I take of Day’s credibility on these issues is such that I am not satisfied that there is a post accident history of dislocation of his left shoulder as a consequence of the events of 9 January 1997. [15] It may be accepted that some two years after 9 January 1997, Day suffered an episode of depression brought about by a combination of a number of causes. To the extent to which dislocation of his left shoulder or concern about dislocation contributed to it, as I have said, I am not satisfied that there was any causal connection with that ever made out. That being so there is no basis for concluding that the 9 January incident contributed to the episode. [16] I have taken into account that Day suffered an injury to his neck with some long term consequences but the evidence was not established that these are particularly disabling. [17] I am prepared to accept, I did not understand it to be seriously contested, that following the 9 January incident Day was restricted in carrying out his work for something like six months and that Auswide Sales had to hire someone to assist him. It seems reasonable to allow something of the order of another six months for Auswide Sales to re-establish itself in the market place and for Day’s efforts to -- 6 of 8 -- 7 generate income for it. After that it is not established that the accident restricted his capacity to work in any significant way. [18] Auswide Sales income was generated by Day’s efforts. The Cairns project was by far the most lucrative in the history of Day and Auswide Sales. Day had been bankrupted some two years before the trust arrangements were put in place. Auswide Sales financial results in terms of financial years were:- Year Amount 1994 $10,560 1995 - $20,362 1996 -$11,619 1997 $98,872 [19] The 1997 result was not representative of Day’s capacity to generate income for Auswide Sales. The evidence is far from persuading me that those figures indicated a trend which would have continued in subsequent years but for the events of 9 January. It also follows from what I’ve said earlier that I am not prepared to conclude that Day’s future earning capacity is limited as a consequence of those events. [20] The defendants made admissions as to the calculation of aspects of Day’s special -- 7 of 8 -- 8 damages claim subject to causation being established. Since Day has failed to do that in a significant respect, the figures arrived at by the agreed calculation must be discounted. Given the state of the evidence the discount is necessarily fairly arbitrary but substantial. [21] I assess damages as follows:- Day (a) Pain, suffering and loss of amenity $24,800 (b) Interest (on $18,000 over 4 years) $1,440 (c) Past economic loss (see Auswide Sales) (d) Special damages (including an allowance for interest) $2,000 (e) Past care (including an allowance for interest) $1,000 TOTAL $29,240 Auswide Sales (a) Past economic loss (including interest) $25,000 -- 8 of 8 --