Donnelly v Hansen & Yuncken Pty Ltd & Ors [1993] QCA 424

IN THE SUPREME COURT [1993] QCA 424 OF QUEENSLAND Brisbane Before Mr Justice McPherson Mr Justice Thomas Mr Justice MacKenzie [Donnelly v. Hansen & Yuncken P/L] Appeal No. 107 of 1993 BETWEEN MARK ALEXANDER DONNELLY Plaintiff AND HANSEN & YUNCKEN PTY LTD Defendant AND WORKERS' COMPENSATION BOARD OF QUEENSLAND First Third Party AND K. & L. QUALITY HANDRAILS PTY LTD Second Third Party AND A.F.G. INSURANCES LIMITED Third Third Party AND INDUSTRIAL MUTUAL INSURANCE LIMITED Fourth Third Party REASONS FOR JUDGMENT - THE COURT Delivered the Twenty Second day of October 1993 The appellant, who is the plaintiff in the action, was injured on 8 February 1982 when he fell from a balcony on the third floor of a building known as "The Resort", which was then under construction at Ferny Avenue, Surfers Paradise. At the time he was preparing to do work on an -- 1 of 7 -- 2 existing handrail on the balcony which, as a subcontractor to the second third party K.& L. Handrails Pty Ltd., it was his function to affix. The defendant is sued in the action as the occupier of the building premises and also as the "constructor" within the meaning of s.6 of the Construction Safety Act 1971-1982. What happened was, as the trial judge found, that the plaintiff walked on to the balcony carrying a power tool in each hand with the electric power leads trailing behind. The balcony was about 18m in length by about 3m wide. He intended to work at the far end of it, where he was planning to put the power tools down before he used them. To ensure that the leads would be out of the way, he turned and walked backwards and parallel to the existing glancing at it from time to time to gauge his position. Moving in this fashion, he unwittingly reached the end of the balcony, took another step backwards, and fell over. The reason why the plaintiff fell is that there was no guard rail, as there should have been, at the shorter side of the balcony. He knew from working elsewhere on the building during the course of the preceding fortnight that on the other balconies there were guard rails, or acrow props with rods strung between, to prevent people from falling off. The handrails that the plaintiff was engaged in installing were designed to fit along the length of the balconies. Someone else had the task of installing the rails along the sides of the balconies. Until that was done there should have been protective railings or guard rails in -- 2 of 7 -- 3 place. That is what is required by pars. (e), (f), and (k) of s.20 of the Construction Safety Act. Read with reg.31(2) of the Construction Safety Regulations, it was the defendant's duty under those provisions to provide protective rails, or to ensure they were provided. The trial judge found that the defendant was in breach of its statutory duty to the plaintiff and of its general duty under the common law as occupier. He also found that the plaintiff would not have fallen or sustained the injury he did if the side of the balcony had been fenced or protected as required. He gave judgment for the plaintiff for a substantial sum in damages the amount of which had been agreed. However, he arrived at the lesser amount for which judgment was given only after reducing the plaintiff's agreed damages by 20% to reflect what he considered to be the plaintiff's contributory negligence. It is this reduction or apportionment against the plaintiff that is the subject of the appeal. His Honour rejected a defence submission that the plaintiff had voluntarily assumed the risk of injury to himself. He nevertheless held that there was in the plaintiff's conduct an "element of recklessness" for his own safety amounting to contributory negligence. However, his Honour made no finding that the plaintiff knew that the side of the balcony was unguarded when he walked backwards toward it. In his evidence at the trial there was some suggestion that the plaintiff may have looked in that direction but taken it for granted that there was protective railing there because he -- 3 of 7 -- 4 knew of their presence on the other balconies. His Honour nevertheless considered that the plaintiff's "assumption of the presence of a guard rail would, if it be the case, still be evidence of some carelessness ...". We are, with respect, unable to agree with his Honour's conclusion that there was contributory negligence on the part of the plaintiff. It is true that the plaintiff may have been under no particular pressure to perform his task hurriedly. There is nothing in the evidence to suggest that that is what he was doing. There is no good reason for supposing that the plaintiff knew the protective railing was missing and decided to ignore it. The judge's finding with respect to voluntary assumption of risk is contrary to any such conclusion. It is quite possible that the plaintiff looked in that direction but did not notice there was no railing there. No doubt impressions formed from working elsewhere on the building would have led him to expect its presence. At the time he was concentrating on the task in hand of laying out the electric power leads. The fact that guard rails existed around all other relevant balconies on these buildings was a circumstance likely to lull him into a false sense of security. The most obvious explanation of the plaintiff's conduct is inadvertence on his part to the unexpected risk confronting him. Mere inadvertence in the workplace is not ordinarily enough to constitute contributory negligence on the part of a person who is injured there through the fault of another. What must be shown is that the plaintiff failed -- 4 of 7 -- 5 to take reasonable care for his own safety. The onus of satisfying that requirement rests on the defendant who asserts it. The defendant here has, in our opinion, failed to discharge the onus. The plaintiff would not have fallen and injured himself if the protective rail had been there, as by law it should have been, and as he naturally assumed it to be. Treating such an assumption on the part of the plaintiff as reasonable, as we do, it is not possible to view the method he used of working on the balcony as involving a culpable disregard of his own safety. His failure to notice that the protective rail was missing may have been inadvertence but it did not amount to a failure on his part to take reasonable care for his own safety. The appeal must be allowed with costs; the finding of contributory negligence on the part of the plaintiff must be set aside; and the amount for which judgment is given must be increased to $214,000. None of the other orders in the judgment below will be disturbed. -- 5 of 7 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 107 of 1993 Brisbane [Donnelly v. Hansen & Yuncken P/L] BETWEEN MARK ALEXANDER DONNELLY Plaintiff AND HANSEN & YUNCKEN PTY LTD Defendant AND WORKERS' COMPENSATION BOARD OF QUEENSLAND First Third Party AND K. & L. QUALITY HANDRAILS PTY LTD Second Third Party AND A.F.G. INSURANCES LIMITED Third Third Party AND INDUSTRIAL MUTUAL INSURANCE LIMITED Fourth Third Party Mr Justice McPherson Mr Justice Thomas Mr Justice MacKenzie Judgment delivered 22/10/93 Reasons for judgment by the Court APPEAL ALLOWED WITH COSTS; THE FINDING OF CONTRIBUTORY NEGLIGENCE TO BE SET ASIDE; AND IN LIEU THE AMOUNT FOR WHICH JUDGMENT GIVEN BE INCREASED TO $214,000. NONE OF THE OTHER ORDERS IN THE JUDGMENT BELOW TO BE DISTURBED. CATCHWORDS PERSONAL INJURY - Negligence - Breach of Statutory duty - Section 20 Construction Safety Act 1971-1982 (Qld.) - Whether plaintiff contributorily negligent. Counsel: J.C. Crowley Q.C., with him K.B. Varley for the plaintiff C. Newton for the respondent Solicitors: Clewett Corser & Drummond, t/a for Gall Stanfield & Tiley, Southport, for the plaintiff -- 6 of 7 -- Watkins Stokes, t/a for Rapp Hickey Morgan Power, Bundall, for the respondent Hearing Date: 18 October 1993 -- 7 of 7 --