Glover v Australian Concrete Floors Pty Limited [2000] NSWSC 928

New South Wales Supreme Court

CITATION : Glover v Australian Concrete Floors Pty Limited [2000] NSWSC 928 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC N213/95 HEARING DATE(S) : 21-24 August 2000 JUDGMENT DATE : 3 October 2000

PARTIES : David John Glover (Pltf) Australian Concrete Floors Pty Limited (Def) JUDGMENT OF : Newman J

COUNSEL : C R Callaway QC/P J Kirby (Pltf) K L Dodd SC (Def) SOLICITORS : Hill Sneddon Partners (Pltf) Sparke Helmore (Def) CATCHWORDS : Negligence - master and servant - credibility CASES CITED : Shedlezki v Bronte Baker Pty Ltd 72 SR NSW 378 at 385-386 DECISION : See para 51

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW

NEWMAN J

NEWCASTLE: TUESDAY, 3 OCTOBER 2000

N213/95 GLOVER v AUSTRALIAN ULTRA CONCRETE FLOORS PTY LIMITED

JUDGMENT

1 HIS HONOUR: This is a claim for damages brought by the plaintiff against his former employer. The defendant has denied liability and has also alleged that the plaintiff was contributorily negligent. 2 Furthermore, the defendant has alleged that the cause of the accident, if it be found to have occurred, if through any breach of duty by the defendant company that breach was in fact the breach of the plaintiff himself. 3 Any failure of the defendant company to perform its duty for which it would be vicariously responsible was, so it was alleged, completely co-extensive with the failure of the plaintiff who was under a concurrent obligation to perform the same duty. 4 This defence was based upon what had fallen from the majority of the Court of Appeal in Shedlezki v Bronte Bakery Pty Ltd 72 SR NSW 378 particularly Asprey JA at 385-386. 5 I turn then to the plaintiff's case. 6 The plaintiff, who is a British citizen now resident in England, was so resident in 1990 when he was employed by the defendant as its factory manager. The business of the defendant was the manufacture of pre-stressed reinforced concrete floor beams. 7 Prior to his engagement on 12 September 1990 the plaintiff had acquired expertise in the manufacture of these objects in England and as I understand it, elsewhere in the world. While having no formal qualifications he had, through working in the industry over many years, acquired expertise. 8 Upon his arrival in Australia his duties originally required him to set up and set in working order, a machine called a slide former. That machine is mounted on rails. Concrete floor joists are manufactured as the machine moves along the rails, cement mix passing through the machine and is extruded underneath it so that the beams are formed. 9 The machine moves along an area which is some 110 to 120 metres long taking 2 to 2 ½ hours to complete its journey. Having completed its journey and having extruded concrete so beams are formed, is then lifted by a crane on to a parallel bed and the process is repeated as the machine travels in the opposite direction. 10 Between the two parallel beds exists an area which was variously described in the evidence some times as a channel but in fact appears to be merely a concrete divide. The beams which are created by the process are cut into required sizes which cause the concrete slurry to enter the divided area. As the machine moves along it is necessary for a person to clean the beams as they are created by using a steel trowel. 11 After the beam is so cleaned and as the machine continues its progress it is necessary for a plastic cover to be pulled over the cleaned beams so, as I understand the evidence, to ensure that they remain clean. In order to carry out the cleaning process of the beams it is necessary for the person performing that task to stand in the divided area between the two beds. 12 It was the plaintiff's case that the presence of concrete slurry on that divided area was of such concern to him that he suggested to a person whom he falsely believed to be a director of the company, one Steven Frost, that a drain could be created by grating or placing pipes in the centre of the divide. 13 The plaintiff said that he had raised this matter originally about two years before the accident and on three or four occasions afterwards only to be told by Mr Steven Frost that this could not be done for costs reasons. 14 The machine is driven by one person who, while driving the machine, fills it with cement mix. Another man is at the rear of the machine cleaning the beams with a trowel in the manner already described and a third should pull the plastic over the cleaned beams. 15 On 1 May 1994 it was the plaintiff's case that an urgent job had arisen which required the plant to operate on that day which was a Sunday. Difficulty had been experienced in organising labour for the day. It was the plaintiff's evidence that to carry out the work properly some fourteen men were required but only six were on the job. Only two of these men were employees of the defendant. Others had been recruited from a company controlled by one of the directors of the defendant company, one William Saddington. 16 The evidence indicates that at the relevant time the Board of the defendant company was constituted by persons who had interests in companies which either utilised or sold the defendant company's products. Mr Saddington was a director, inter alia, of a company known as Saddington Building Supplies. Another director, a Mr Julian White, was the representative of yet another company on the Board as was Mr Spencer Higgins. Mr Mal Frost was a representative of another company on the Board as was a Mr Doug Irvine. I should add that it was Mr Saddington's evidence which was unchallenged in this respect that Mr Steven Frost to whom the plaintiff said he had discussed the matter of draining the divide was never a director of the company but merely the brother of one. 17 I return to the events of 1 May 1994. It was the plaintiff's case that a Mr Scott Thompson was driving the machine and that he was carrying out the task of both cleaning the freshly made concrete beams with a steel trowel and also pulling the plastic cover over the beams having carried out the cleaning process. Normally, it was his evidence, that a third person would perform that task. 18 I should add that while the plaintiff was engaged in a supervisory role of factory manager it was his evidence and this was not subject to any serious challenge that he was not only a supervisor, but also in the normal course of events would carry out a number of manual functions required to produce the beams. 19 Indeed, it was his evidence that not only was he cleaning the beams and pulling the plastic but also assisting Thompson in the operation of the machine because of Thompson's unfamiliarity with its operation. 20 The process of manufacturing had commenced at about 6 am. It was the plaintiff's case that the accident happened at 9.30 am. At the time the plaintiff was engaged in the task of cleaning the beams with the steel float. 21 To perform that task he had to stand in the divide which had on it concrete slurry as a consequence of the operation which had been carried out and as he turned to pull the plastic he slipped on the divide made slippery by the concrete slurry and fell backwards on to the adjoining bed. 22 He felt immediate pain in his low back which extended into his right leg. Although he temporarily ceased work to return home to change his trousers which had become wet, he in fact continued working on during the day albeit as the day went on the pain in his back and right leg became worse. 23 He reported the accident on Monday to Mr Saddington and ultimately saw a general practitioner who had x-rays taken and referred him to an orthopaedic surgeon, Professor Ghabrial. 24 When seen by Professor Ghabrial on 27 May 1994 his symptoms were quite severe. He was limping and stood with a list. His lordosis was decreased with moderate paraspinal lumbar spasm. In addition, his spinal range of motion was markedly restricted. A CT scan revealed a marked disc prolapse with sequestration at the L5-S1 segment. 25 Such was the severity of his condition that Dr Ghabrial recommended surgery and on 8 June 1994 that Doctor excised the prolapsed and sequestrated disc. 26 The plaintiff had quite a short time off work following such a radical procedure, returning to work on 18 July 1994. However, due to an illness unrelated to the accident he went off work again on 28 September 1994. 27 He was off work for some six weeks with that illness and indeed as I understand the evidence, was dismissed by the defendant either at the end of that period of absence or shortly thereafter. Indeed he was dismissed by the defendant company on 14 November 1994. 28 The plaintiff's evidence as to the accident was challenged on a number of fronts by the defendant. First, it was suggested to the plaintiff that he had not followed the usual practice of recording matters such as his injury in a diary he kept at the factory. Second, the challenge was extended to the accident happening as the plaintiff said it did. It was put to the plaintiff that he had stated to Mr Higgins that the injury had occurred when his wife pushed him over. 29 Mr Thompson who was operating the machine gave evidence that he was unaware of any accident befalling the plaintiff on the Sunday and indeed, challenged in his evidence that the accident could have occurred in the manner suggested by the plaintiff. 30 Third, it was put to the plaintiff that the reason why it was necessary for work to be undertaken on the Sunday was not so much that an urgent job had to be completed but that the job on hand which could have been finished on the Saturday was not then completed because the plaintiff had failed to order sufficient cement for the work to proceed. 31 This challenge was directed towards that part of the plaintiff's case which was that he was required on the day of the accident, to undertake a number of additional tasks because the factory was shorthanded as a consequence of the necessity to complete an urgent order. For reasons that will become apparent it is not necessary for me to dwell on this aspect of the matter. 32 Fourth, the plaintiff in chief, stated that he reported the accident on the Monday to a director, Mr Saddington and on the same day saw his doctor. In fact, a medical report tendered on the plaintiff's behalf from Dr Ireland, general practitioner, contains the following: "I am unable to provide much information regarding Mr Glover's injury. He was seen twice at our surgery regarding that injury by a locum. The notes state the following: '4/5/94 Works as manager at concrete flooring place. Bent over at work 1/5/94 and felt sudden right L4-5 level back pain.' " 33 When this date was put to the plaintiff in cross-examination his response was "I am not sure now." When it was put to him in cross-examination that all he had told the doctor whom he saw on 4 May was that he had bent over. The plaintiff maintained that he had told that practitioner "I was bending over and I went to get up and slipped and went back on some beams." 34 I should add that Mr Saddington gave some support to the plaintiff as to the time when the plaintiff reported the accident to him during the following exchange in chief: "Q. Can you recall when in relation to 1 May it was that you asked Mr Glover what he had done to himself or what had happened to him? A. Well, it would probably - it would have to be the Monday or the Tuesday, because I wasn't at the plant during the weekend, so the first I would have noticed it would have been the first weekday that I had been to the plant when I noticed it." 35 In relation to the first of the challenges it is the fact that the diary kept by the plaintiff does not make any mention of him suffering injury. When pressed in cross-examination as to why he did not, he responded that he did not think it necessary to record matters relating to himself. He agreed that he would record injuries suffered by others. 36 However, when taken to an earlier entry in the diary on a page dated "Wednesday, 20 April 1994" and directed to an entry "Me go home sick", the following exchange occurred: "Q. Why did you make an entry along those lines if you didn't consider it important enough to make an entry regarding what you say happened on 1 May? A. I don't know." 37 In relation to the second challenge Mr Higgins stated that he had good reason to remember his visit to the defendant's premises on 5 May 1994. He stated that earlier on that day he had met with the Chairman and Managing Director of James Hardie and taken him to a site in Sydney and then had a further meeting at the defendant's factory premises at Rutherford at 10 o'clock on that day. 38 Mr Higgins deposed that he saw the plaintiff at the factory and noticed him limping and asked him "what has happened to you David?" He went on to depose that the plaintiff replied "Ronnie pushed me over". Ronnie being the plaintiff's wife. Mr Higgins deposed that he made no mention of hurting his back at work. 39 The plaintiff in cross-examination denied that he had told Mr Higgins that. Mr Higgins when challenged in cross-examination as to this conversation, did not resile from his evidence in chief. 40 As I have already mentioned, Mr Scott Thompson stated that he was unaware that the plaintiff had an accident on Sunday, 1 May. The plaintiff, in chief, had deposed that he had told Mr Thompson of the injury. Mr Thompson, when challenged in cross-examination, maintained his position. 41 I should add that there were some other minor challenges to the plaintiff's veracity in relation to the subject accident. These included the fact that on the claim form for workers' compensation which was signed by the plaintiff on 30 May 1994 and largely completed in his own hand while saying notice of the injury was given on 2 May 1994 did not complete the form where asked for the time when notice was given and to whom it had been reported. The plaintiff had no explanation as to why the form was not so completed. 42 However, the plaintiff denied that he told a Dr Smyth a medical practitioner who carries on his practice in the suburb of Hamilton in Newcastle who saw the plaintiff on 1 December 1996 that he had slipped on some tiles when he suffered injury. 43 Excluding the third matter of challenge I am of the view that any of the matters standing alone would not, of themselves, cause me sufficient doubt to conclude that the plaintiff had not established his case on a balance of probabilities. 44 However, when taken in combination I find myself driven to the conclusion that doubt created by these matters is such that I am not satisfied that the plaintiff has, on a balance of probabilities, established his case. 45 The severity of his back injury as has been indicated by Professor Ghabrial was such that it is startling that the plaintiff did not seek medical assistance until 4 May 1994. 46 In chief, of course, he said he had sought assistance on the Monday but as I have indicated could not give any reason as to why it was that the recorded delay occurred. 47 While doctors histories are not always accurate, the fact that there are recorded two histories which are inconsistent with the plaintiff's account that he slipped is a matter of concern. 48 However, the evidence of Messrs Higgins and Thompson when viewed in combination with the other evidence to which I have referred, casts such doubt on the plaintiff's account of the subject accident as to prove fatal to his case. 49 I accept Messrs Higgins and Thompson as being truthful and reliable witnesses and wherever their testimony is in conflict with that of the plaintiff, I prefer their evidence to that of the plaintiff. Such is the doubt I entertain that I find that the plaintiff has, on a balance of probabilities, failed to establish that the accident occurred as he said it did. 50 It follows that the plaintiff's claim must then fail and there must be a judgment for the defendant. 51 Because the matter was argued before me I believe I should make reference to the defence based upon Shedlezki's case. In Shedlezki the plaintiff was not only the Managing Director but also the principal shareholder of the private company concerned. Any decision he made was the decision of the company. The plaintiff here was not a director and was not even a shareholder in the company. 52 In my view even if Shedlezki is still good law I believe the situation in this case is distinguishable from that case. The defendant company still had a duty to provide a safe place of work for the plaintiff. If I had accepted the plaintiff's version of events I would have held that the defendant was in breach of its duty and while the plaintiff occupied the position of factory manager and was in control of all operations in the factory his position was so distant from that of the plaintiff in Shedlezki's case that I would have concluded that the defence would fail. However, on my findings of fact there must be a judgment for the defendant plus costs. **********