Rowney v Chambers Logging Pty Ltd [2000] NSWSC 254

New South Wales Supreme Court

CITATION : Rowney v Chambers Logging Pty Ltd [2000] NSWSC 254 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 100/86 HEARING DATE(S) : 27-29 March 2000 JUDGMENT DATE : 3 April 2000

PARTIES : Warren Peter Rowney (Plaintiff) Chambers Logging Pty Limited (Defendant) JUDGMENT OF : Studdert J

COUNSEL : C. Callaway QC/S. Harben (Plaintiff) W. Austron (Defendant) SOLICITORS : Whitelaw McDonald (Plaintiff) Hunt & Hunt (Defendant) LEGISLATION CITED : Workers' Compensation Act Humberstone v Northern Timber Mills (1949) 79 CLR 389 CASES CITED : Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561 Stevens v Brodribb Sawmilling Co. Pty Lltd (1985-86) 160 CLR 16 Bryce v Tapalis (unreported, NSWCA, 10 February 1989) DECISION : See paras 81-82

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

NEWCASTLE: Monday 3 April 2000 100/86 WARREN PETER ROWNEY v CHAMBERS LOGGING PTY LTD JUDGMENT

1 HIS HONOUR: Warren Peter Rowney is seeking damages from Chambers Logging Pty Limited. He claims to have been injured when struck by a tree or part of a tree on 21 May 1985. At the time of the happening of this event the plaintiff was engaged in cutting timber in the Wyong State Forest. 2 The plaintiff's evidence was that he was one of a team of four men engaged in the operation in the forest. The other men with whom he was working the plaintiff identified as Bob Clarke, Neil Onley and John Hamilton. According to the plaintiff, Mr Clarke was in charge of the team, and the timber getting operations started some weeks before his accident. The plaintiff described the particular compartment where the men were working as being in the Watagan Mountains. The plaintiff said that he and the other members of the team occupied a house some distance from the work site and that Mr Clarke drove the team to the work place each day in a four wheel drive vehicle. The plaintiff said that the work place was some thirty kilometres from the main road, although in cross examination he conceded that it may have been as little as fifteen kilometres away from the such road. In any event, the team travelled to the work site each day in the vehicle which Mr Clarke drove. 3 The plaintiff said that work started with daylight and it ceased when Mr Clarke, who the plaintiff regarded as the team foreman, decided that it should cease. 4 There were a number of machines used in the timber getting operation, consisting of a bulldozer, a skidder and an excavator. Mr Onley was the excavator driver, Mr Hamilton shared with Mr Clarke the job of driving the skidder and Mr Clarke drove the bulldozer. The plaintiff's task was to cut timber. 5 According to the plaintiff, the work went on for some weeks before the weather caused a period of disruption. Work had to cease because of wind and rain which rendered it too dangerous to carry on. It was the plaintiff's recollection that the disruption extended for two weeks and then a decision was made to work again, that decision being taken by Mr Clarke. The plaintiff said that work was performed on the Monday but the weather deteriorated that evening and on the following day it was wet and windy. Discussion took place at 4.30 am in the premises where the four men were staying and Mr Clarke decided that the men would work that day, although there were protests about this. Indeed, the plaintiff said that he protested that they would all be killed. Notwithstanding the protests from the plaintiff and his companions, Mr Clarke said that they would work and he drove the men out to the workplace. There was further discussion on the way and the vehicle collided with a tree on the wet and slippery road. The men arrived at the landing and, once again, the plaintiff said that he objected to working but Mr Clarke insisted. The weather did abate from time to time but not, in the plaintiff's opinion, to the stage where it was actually safe to undertake logging operations. 6 The plaintiff said that conditions were very difficult and the wind tendered to make it difficult to cut the timber because the saw kept getting caught. Again the plaintiff said he complained to Mr Clarke about the way the trees were leaning back but Mr Clarke said to keep going, and the plaintiff did so. 7 The plaintiff felled a tree and when he was about to cut the first limb off it after it had fallen, he was struck by what he later observed to be a piece of timber eight to twelve inches thick and fifteen to twenty feet long. He had not seen it come down on him, but he said it "smashed his safety hat to pieces" and drove him into the ground. 8 The plaintiff was subjected to a long and searching cross examination in the course of which he was asked about two statements which he made after the accident. The earlier of these in point of time was a notice of injury form which he completed on 2 June 1985 and in which in his handwriting he briefly stated that he had been injured when "hit on the head by a small dead tree". In cross examination it was suggested that this description was inconsistent with the description he gave in evidence as to the size of the timber which had struck him but in relative terms the plaintiff explained that a length of timber fifteen to twenty feet was small. 9 The later statement, which was made on 12 July 1985 at a time when the plaintiff was in hospital, contained no complaint about the plaintiff being required to work in dangerous conditions. In that statement, which the plaintiff signed, he said that work was delayed on 21 May because of rain and wind but that the wind died down about 7.30 am and it stopped raining and thereafter he felled twelve trees without incident. It was put to him that such a description of events was inconsistent with his evidence in chief. 10 Mr Austron submitted that I should not accept the plaintiff's account in the witness box because it differed from his earlier statements made so close to the accident. He also drew attention to the fact that no other member of the work team had been called and since there was evidence that Mr Onley had been present at court during the hearing, I should infer his evidence, had he been called, would not have advanced the plaintiff's case. Moreover, whilst a handwritten statement was introduced from Mr Clarke as Exhibit D the plaintiff did not call him and the statement did not accord with the plaintiff's account of events on the day of the accident. 11 So far as the failure to call Mr Clarke is concerned, I do not consider that I should draw any inference adverse to the plaintiff because of this. In the statement of claim filed on 18 February 1986 the plaintiff included as particulars of negligence an allegation that the plaintiff was required to work in unsafe and dangerous weather conditions and he had previously described Mr Clarke as his foreman in the notice of injury form upon which Mr Austron cross examined the plaintiff (Exhibit 1). I accept Mr Callaway's submission that it is to be expected that the defendant would have interviewed Mr Clarke in 1986, but in any event the evidence received when Exhibit D was admitted into evidence was that Mr Clarke's present whereabouts are unknown. As to the failure to call the other members of the team, there was no explanation placed before the Court as to why these men were not called and I am mindful that the plaintiff's account in the witness box has not been supported by Mr Onley or by Mr Hamilton. I heed that in his statement (Exhibit D) Mr Clarke made no reference to the protests the plaintiff claimed he had made to Mr Clarke about having to work on the day of the accident. I also have regard to the content of the statement made by the plaintiff when he was in hospital (Exhibit 2) as well as the earlier notice of injury form (Exhibit 1). 12 I approach the assessment of the plaintiff's evidence with the earlier documents and the above considerations very much in mind. I heed the various criticisms Mr Austron made of the plaintiff's evidence. 13 Notwithstanding all that Mr Austron has urged to the contrary, I formed a favourable impression of the plaintiff in the lengthy period he was in the witness box. Mr Austron submitted that I should reject his evidence as being mistaken because of the passage of time or, alternatively, as being deliberately untrue. Because the plaintiff made quite specific assertions as to the nature and the detail of his protests to Mr Clarke about working that day, it is difficult to treat this evidence as being the result of mistake through the passage of time. The plaintiff was clear about his protests to Mr Clarke. For instance, he said that before the men set out from the house on the morning of 25 May he said to Mr Clarke (T10): "…Bob, there is no way we are going to turn around and get up there because we'll all get killed." Then later, after cutting had begun, the plaintiff said he complained to Mr Clarke (T13): "Look all the trees are leaning back. The saw is getting caught all the time. It is unreasonable to turn round and expect carrying on logging operations." To that Mr Clarke replied: "Well, come on, let's keep going." 14 I do not consider there is room for rejection of the plaintiff's utterances to the above and the like effect because his memory has been rendered unreliable by the passage of time. He asserted specific recollection of those matters and a clear recollection of the events leading up to the injury. Moreover I do not accept the submission that the plaintiff was deliberately setting out to deceive the Court in his description of the events of 21 May 1985. On the contrary, I regard the plaintiff as having given an honest and generally reliable account of those events. Accordingly I am satisfied on the balance of probabilities that the plaintiff was injured when he was struck by falling timber in the circumstances he described. I accept that he regarded the working conditions as unsafe and dangerous that day and that he made the protests to Mr Clarke about which he gave evidence. 15 What was the relationship between the plaintiff and the defendant pursuant to which the plaintiff was working in the Wyong State Forest? 16 It is the plaintiff's case that he was working there under a contract of service. The defendant does not accept that this was so, and Mr Chambers, who was the defendant's manager in 1985, said that the plaintiff's services were engaged as subcontractor. 17 According to the plaintiff he had been working in New Zealand and he flew back to Australia to take up work with the defendant. Having arrived in Sydney, he flew to Newcastle where he was picked up by the other three members of the team and taken to Hawkes Nest where he spoke with Mr Chambers. According to the plaintiff Mr Chambers told him he was to start work on the following Monday and that the timber to be cut was "big hardwood". Mr Chambers also told him, the plaintiff asserted, that Bob Clarke would be the foreman in charge and that pay would be at the rate of $2-3 per ton. The plaintiff said that he spent the Saturday night at Mr Clarke's house at Hawkes Nest and the following day the four team members went to stay at a house which was provided by the defendant near the work site. Work proceeded in the forest for some weeks and was then interrupted by the bad weather earlier referred to. The accident happened on the second day after work resumed. In the period that the plaintiff worked under his contract with the defendant he said he was paid by the defendant by cheque. Payments were based upon records which Mr Onley kept of the tonnage of timber cut, and, according to the plaintiff, he was paid by cheque with "fifteen percent tax" deducted. 18 Mr Chambers' version of the arrangement was a different one. He said he offered the plaintiff a position "as a subcontractor", and that when the plaintiff arrived at Hawkes Nest Mr Chambers said there was discussion that the men would be on "so much per tonne" and that this was how they were paid, with no deduction for taxation. Mr Chambers said that the defendant was doing contract work for Sawmillers Export to whom the compartment to be worked was allocated by the Forestry Commission. Mr Chambers said he would not have told the plaintiff that Mr Clarke was his foreman because it was not the fact. He may have said (T121): "Bob [that is Mr Clarke} would look after you." 19 The criteria for determining whether a relationship is one of master and servant or of principal and independent contractor have been considered in a number of cases including Humberstone v Northern Timber Mills (1949) 79 CLR 389; Zuijs v Wirth Bros. Pty Ltd (1955) 93 CLR 561; and Stevens v Brodribb Sawmilling Co. Pty Ltd (1985-86) 160 CLR 16. As the cases stress, an important factor in defining the relationship between one person and another for whom work is done is the extent of control over the person actually performing the work. The particular significance is the right of control even though it may not always be practical to exercise it as the circumstances in Zuijs illustrate. 20 In Stevens Mason J said at 24: "But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation (145) 70 CLR 539 at 552; Zuijs' Case; Federal Commissioner of Taxation v Barrett (1973) 129 CLR at 401; Marshall v Whittaker's Building Supply Co. (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee." 21 Another test considered in the authorities is the organisation test but this is of lesser importance than the control test: see again the judgment of Mason J in Stevens at 27. 22 Mr Austron submitted that I should find that the plaintiff was an independent contractor, pointing to what he submitted were features established by the evidence: