Williams, Garry v Peterson'S Industrial Paint

• Jurisdiction: Tasmania
• Judge: Crawford J,Evans J,Blow J
• Judgment Date: 14 November 2002
• Date: 14 November 2002
• Court: Supreme Court of Tasmania
• Docket Number: FCA 106/2001

[2002] TASSC 99

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford, Evans and Blow JJ

FCA 106/2001

FCA 107/2001

Williams, Garry

Highrig Constructions Pty Ltd

(Acn 005 515 926)

T/As Highrig Crane Hire

and

Peterson'S Industrial Paint

Services Pty Ltd

Bleathman, Ewan Christopher

Bleathman, Ewan Christopher

and

Peterson'S Industrial Paint

Services Pty Ltd

Williams, Garry

Highrig Constructions Pty Ltd

(Acn 005 515 926)

T/As Highrig Crane Hire

Smith v McIntyre [1958] Tas SR 36 ; Tamar Park Pty Ltd v Smith [1999] TASSC 16; Lowe v Menzie [2000] TASSC 132, followed.

Aust Dig Appeal and New Trial [60]

O'Connor v Commissioner for Government Transport (1954) 100 CLR 225 , referred to.

Aust Dig Employment Law [34]

Aust Dig Torts [66]

Supreme Court Civil Procedure Act 1932 (Tas), s45(1).

Appeal and New Trial — Appeal — General principles — Interference with discretion of court below — Particular cases — Other matters — Apportionment of liability — In general.

Employment Law — The contract of service and rights, duties and liabilities as between employer and employee — Liability of employer for injury to employee at common law — Supervision and instruction — Experienced worker — Dogman not instructed to use tag line.

Torts — Negligence — Contributory negligence — Particular cases — Other cases — Negligent driving of mobile crane — Failure of dogman to use tag line.

REASONS FOR JUDGMENT

FULL COURT

Crawford J

1 I respectfully agree with the conclusion of Blow J and his Honour's reasons in reaching that conclusion, that both appeals should be dismissed.

Evans J

2 I agree with Blow J's reasons for judgment and the orders he proposes.

Blow J

3 These two appeals arise from the trial of an action for damages for personal injuries. The plaintiff (Mr Bleathman) sued his employer (Peterson's Industrial Paint Services Pty Ltd), a crane driver (Mr Williams), and a crane hire company (Highrig Constructions Pty Ltd, the employer of the crane driver). The learned trial judge found that the employer was not liable to the plaintiff for damages for negligence, but that the crane driver and the crane hire company were so liable. His Honour found that there had been contributory negligence on the part of the plaintiff, and reduced his damages by 20 per cent as a result. The crane driver and the crane hire company had sought contribution from the employer, but that claim was dismissed as a result of the conclusion that the employer was not liable. The crane driver and the crane hire company have appealed, contending that the employer was liable for damages for negligence, and that they should recover contribution from the employer. The plaintiff has appealed, contending that there should not have been any reduction in his damages on the basis of contributory negligence. The assessment of the plaintiff's damages has not been challenged in either appeal.

4 The plaintiff was an experienced rigger and dogman. The employer carried on business as a paint manufacturer. It had decided to demolish some sheds. Demolishing sheds was not a routine part of its business. For the purposes of its demolition project, it employed the plaintiff on a casual basis, and contracted with the crane hire company for the provision of a mobile crane and a crane driver. The employer decided to retain a number of steel beams that had been vertical supports in one of the sheds that were being demolished. It decided to store these beams on another part of its premises. The plaintiff and the crane driver were required to move the beams to their storage position, using the hired crane. The beams were suspended from the end of the crane's jib. The crane driver drove the crane from the demolition site towards the storage site with the beams hanging in front of the crane, parallel with its front bumper. The plaintiff walked with the beams, maintaining a position at the right hand end of them. They proceeded along a street in this way, and turned to pass through a gateway in order to return to the employer's premises. Because the beams were about as long as the gateway was wide, the plaintiff slewed the beams, so that they were at an angle of about 45 degrees to the crane's front bumper, with the right hand end of the beams forward of the front of the jib. That is to say, he rotated the beams anticlockwise through about 45 degrees. After the crane had passed through the gateway, the plaintiff decided to return the beams to their original position, parallel with the front bumper, and began to rotate them for that purpose. The learned trial judge found that he rotated them clockwise, and no challenge has been made to that finding in either appeal. The crane had travelled over some uneven ground after passing through the gateway. The beams had begun swinging in some sort of pendulum motion. They were very heavy, and the plaintiff found them difficult to control. The beams passed through a position parallel with the front bumper, and continued to rotate clockwise, with the plaintiff trying to stabilise them. He maintained a position atthe right hand end of the beams, between them and the front bumper, with his back to the crane, as they rotated clockwise. The crane driver did not stop the crane. When the plaintiff neared the front bumper of the crane, its front right wheel crushed his right foot, driving it into the ground. The plaintiff still had his back to the crane, but was facing to the right of the crane. The crane driver did not realise that the crane had collided with the plaintiff until the plaintiff told him he had run over his foot. The learned trial judge found that the crane driver was negligent in failing to keep a proper lookout; failing to stop, slow down or manoeuvre the crane so as to avoid running over the plaintiff's foot; failing to pay sufficient attention to the location and safety of the plaintiff; and failing to stop accelerating when the load being carried by the crane became unsteady. No challenge was made to those findings in either appeal. The crane hire company was of course vicariously liable for the negligence of the crane driver.

The first appeal — was the employer liable?

5 The crane driver and the crane hire company contended that the employer was negligent on the basis that its duty to provide the plaintiff with a safe system of work required it to insist that he use a ‘tag line’ to control the movement of the beams. No other allegation of negligence was relied upon in this appeal. A tag line is a rope. The crane driver gave evidence, which the learned trial judge accepted, that tag lines had been used earlier during the course of demolition, and that they were kept in a tool box fixed to the crane. If the plaintiff had used a tag line, affixed at or near the right hand end of the beams, for the purpose of controlling their movement, he would not have positioned himself between them and the front of the crane as they rotated clockwise with their right hand end nearing the crane's front right wheel. Instead of pushing against the rotating beams with the crane behind him, the plaintiff could have pulled the tag line, either from a position well forward of the crane, or from a position to the right of its intended line of travel. The learned trial judge made a finding, not challenged in this appeal, that ‘Had a tag line been used, the plaintiff would not have been as close to the crane as he was and would not have had his body between the wheel and the beams’. On the hearing of this appeal, the employer did not dispute these factual matters, but contended that, given the circumstances, its duty of care did not require it to insist on the use of a tag line by the plaintiff.

6 It is fundamental that ‘an employer has a personal, non-delegable duty, to take all reasonable care to institute a safe system of work and to ensure that it is carried out, so that his employees will not be exposed to unnecessary risk’:Kondis v State Transport Authority (1984) 154 CLR 672 per Murphy J at 689. That duty requires an employer to give an employee directions in the performance of his or her work ‘where directions might reasonably be thought to be required to secure him [or her] from danger of injury’: Kondis (supra) per Mason J at 689. The standard of care expected of an employer requires account to be taken of the possibility of inadvertent and negligent conduct on the part of employees and others: McLean v Tedman (1984) 155 CLR 306 at 311 – 312; Zerk v Finemores Transport (Qld) Pty Ltd (1992) 62 SASR 333 at 341.

7 The employer's duty of care ‘is not discharged by delegation unless the delegate, be he employee or independent contractor, in fact provides the reasonable care which the employer was under an obligation to bring to bear’:Kondis (supra) per Deane J at 694. However an employer will be liable for damages for negligence only if a reasonable employer similarly circumstanced would have taken some step or steps that would have obviated the risk of injury. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 – 48, Mason J (with whose reasons Stephen and Aickin JJ agreed) said the following:

‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response tothe risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are...