Supreme Court New South Wales Medium Neutral Citation: McGlashan v QBE Insurance (Australia) Ltd (No 2) [2014] NSWSC 486 Hearing dates: 27, 28, 29 May 2013 Decision date: 01 May 2014 Jurisdiction: Common Law Before: Campbell J Decision: Separate questions answered as follows: (1)Is Lidoran Roofing Pty Ltd legally liable to pay damages to the plaintiff for the consequences of the injuries received by him on 7th September 2006: Answer - no. (2)If the answer to (1) is yes, to what amount of damages is the plaintiff entitled? Answer - question does not arise. Catchwords: TORTS - negligence - duty of care - workplace injury - duty of principal to independent contractor - whether duty to control system of work of independent contractor - whether principal owed duty to provide the necessary manpower to contractor for compliance with usual industry practice Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 18 Law Reform (Miscellaneous Provisions Act) 1946 (NSW), s 6 Occupational Health and Safety Act 2000 (NSW) (repealed) Occupational Health and Safety Regulation 2001 (NSW) (repealed) Uniform Civil Procedure Rules 2005 (NSW), r 28 Cases Cited: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649; Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317; Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; HC Buckman and Son Pty Ltd v Flanagan and Another (1974) 133 CLR 422; Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44; Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1; Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406; Roads & Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; (2007) 234 CLR 330; Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16; Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another [2004] HCA 16; (2004) 216 CLR 515; Category: Principal judgment Parties: Barry McGlashan (plaintiff) QBE Insurance Limited (defendant) Representation: Counsel: M J Cranitch SC with R Harrington (plaintiff) R Cavanagh SC with N E Chen (defendant) Solicitors: File Number(s): 2009/297804 Judgment 1The plaintiff claims damages from the defendant in respect of personal injury suffered by him on 7th September 2006. 2The proceedings are brought under s 6 Law Reform (Miscellaneous Provisions Act) 1946 (NSW) to enforce the statutory charge on liability insurance monies that may become payable under a policy issued by the defendant ("insurer") to a company called Lidoran Roofing Pty Ltd ("Lidoran") in respect of "all sums which the insured should become legally obligated to pay as compensation for personal injury"(Exhibit 8L). Adamson J granted the leave necessary to bring the action on 5th May 2012, by consent. 3For reasons given in my decision of 29th May 2013, after 3 days of hearing I made an order under r 28.2 Uniform Civil Procedure Rules 2005 (NSW) in the following terms: That the questions of duty, breach, causation and damage to be determined separated from any other question including the insurance question in the proceedings. This order was made by consent. Upon reflection, I consider it appropriate to amend the questions posed as follows: (3)Is Lidoran Roofing Pty Ltd legally liable to pay damages to the plaintiff for the consequence of the injuries received by him on 7th September 2006; (4)If the answer to (1) is yes, to what amount of damages is the plaintiff entitled? B & J roofing and Lidoran 4Mr McGlashan is a roofing carpenter by trade. He has no formal qualifications as a carpenter but learnt the trade working with his carpenter father. 5In 1998, Mr McGlashan and his son, Jason, after he qualified as a carpenter, set up in partnership as roofing contractors trading under the name B & J Roofing. Most of their work involved installing metal roofing. The partnership was quite successful initially and employed other workers. It worked on a lump sum contract basis. Jason was responsible for preparing quotes and the business administration because his father's literacy and numeracy were poor. Mr McGlashan's wife kept the books. 6The partnership experienced a downturn in about 2006, forcing them to lay off their employees and look for other work. 7Mr McGlashan responded to an advertisement placed in a newspaper by Lidoran offering sub-contract work to experienced roofers. The advertisement specified that applicants "must have own transport, insurances and all tools, a clean tidy appearance and good working history". After being interviewed by Mr Bamford, who ran the company, Lidoran allocated work to the partnership. 8The terms of the arrangement are of some importance to the question of whether Lidoran owed Mr McGlashan a duty of care and if so, the content, nature and scope of it. But for present purposes, it is sufficient to say that essentially, Mr McGlashan and his son lent their labour to Lidoran at an hourly rate of $35 for each man. Essentially they worked on roofing jobs for Lidoran, providing their own hand tools. Lidoran quoted on the jobs, provided the materials and any larger pieces of equipment necessary for the performance of the task, such as elevated working platforms when required, and engaged Messrs McGlashan (and others) to provide their labour. 9The partnership performed work as required by the Lidoran between 1st May 2006 and early September 2006, charging out their labour at the agreed hourly rate of $35. As had occurred in their previous business, Jason handled the paperwork for this subcontracting. The plaintiff's injury 10It was raining on 7th September 2006 and Lidoran's production manager, Jared Keen, called off the work allocated for that day. Mr McGlashan took the call and passed the news onto Jason. About an hour later, on Mr McGlashan's version, Mr Keen rang back and asked whether the McGlashans could work that day fixing leaks. By the time Mr McGlashan got on to Jason he had made other plans. 11There is some controversy about this, but essentially Mr McGlashan worked alone that day attending to repair jobs allocated by Lidoran. The controversy relates to whether Mr McGlashan only agreed to work because Mr Keen assured him he would help him to do the repair jobs. But whatever the arrangement it is common ground that Mr McGlashan worked alone that day. 12He was injured working on his third job of the day, at a furniture factory at Marjorie Street, Sefton. Again, there is controversy about what happened. Mr McGlashan says the ladder he was descending after completing the job blew over in the wind and he was forced to jump off. He fell three or four metres, landing on his feet, suffering severe injuries to each of his heels. The injuries are referred to in the medical evidence as "bilateral tongue-type calcaneal fractures" requiring treatment by surgical fixation. He underwent further surgery to remove the fixation devices. He has post-traumatic osteoarthritis. There is no real dispute that he is unfit to continue in his roofing work and any work involving working on rough or uneven ground. The issues 13The issues for decision are as follows: (i)What happened to cause Mr McGlashan's injuries: did he jump off the ladder as it was blown over as he contends; or did he jump from the roof in an attempt to get down after the ladder had blown over, as the defendant contends? (ii)Did Lidoran owe Mr McGlashan a duty of care, and if so, what was the nature, scope or content of it? (iii)If Lidoran owed a duty, was it guilty of negligence in the circumstances in which Mr McGlashan was injured, and did that negligence cause his injuries? (iv)If Lidoran is legally liable for Mr McGlashan's injuries what amount is he entitled to in damages? What happened to cause Mr McGlashan's injuries 14The context in which this issue arises is that Mr McGlashan says that as he was working on his own, his only means of securing the ladder was to lash it to the roof at its top end. When he had completed repairing the leak at Marjorie Street, it was necessary for him to untie the ladder as he stood on it to commence his descent. The weather was bad that day and as he made his way down, a sudden gust of wind blew the unsecured ladder over forcing him to jump the distance of 3 to 4 metres to the ground. He was injured when he hit the ground as I have described. 15The defendant's case is that whilst the plaintiff was fixing the leak, the ladder blew down in the wind. Without seeking assistance, the plaintiff decided to climb down from the roof by lowering himself to a light fitting on the face of the building (see Ex C), and jumping from there. The defendant says this was an unnecessary and voluntary act of folly. 16The account for which the defendant contends is based upon admissions the plaintiff is said to have made to Lidoran's Mr Keen when Mr McGlashan called him to report his accident immediately after its occurrence, and to Mr Seth Fitzgerald, its logistics manager, who was sent to the site to render assistance. 17Mr Keen says that Mr McGlashan told him over the phone: I've had an accident and broke my ankles at the Sefton property. My ladder fell over and I jumped off the roof. Mr Fitzgerald says that when he arrived at the Sefton site, Mr McGlashan was inside the factory sitting down with his feet bandaged and in ice. In response to Mr Fitzgerald's questions about what happened. Mr McGlashan said: My ladder had blown over leaving me stranded on the roof and I tried to climb down from the roof using a light on the side of the building and fell in the process. Mr Fitzgerald then identified the light fixture protruding from the building, which is shown in Ex C. 18The resolution of this question of primary fact turns, at least in part, on a question of credit of the lay witnesses involved. Having said that, I acknowledge that where possible it is preferable to base my conclusion on "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 129 [31]. 19On the balance of probabilities I accept Mr McGlashan's account on this issue. Although there are a number of aspects to his background, I refer to his criminal record including recent matters, which do not reflect creditably upon him, he struck me as a sober, mature and straightforward middle-aged-tradesman. There are aspects of his evidence to which I will refer below which I have difficulty accepting. But looking at the apparent logic, or probability of events, it strikes me as most unlikely that Mr McGlashan would have clambered down onto the fluorescent light fitting depicted in Exhibit C and jumped from there. As plaintiff's counsel argued, this would have involved a feat of considerable acrobatic ability. The evidence does not establish that he possessed such ability nor do I have any other reason to suppose that he did. 20The light fitting is about 8 brick courses below the cap of the parapet wall. Climbing down to it would not significantly reduce the height of the potential fall, making a jump from there no more palatable than a jump from the top of the wall. 21The light fitting appears to be bolted directly into the brickwork. Again, there is nothing in the evidence to suggest that it would support Mr McGlashan as he clambered down and prepared to jump, or swing, down from the light fitting, notwithstanding that he appeared to be of a spare, lightly built frame. 22Mr Keen, an experienced roofer, said he found it "profound that someone would want to ...jump off a roof" (151.35T). He agreed that it was "extraordinary"(153.8T). 23On the evidence, the factory was occupied. Mr McGlashan said he had langauge difficulties with the workers, but they were there. He could easily have called out for help. Moreover, he had his mobile phone with him. According to Mr Keen, Mr McGlashan telephoned him on that phone immediately after the injury. Doubtless he could have used the phone to telephone for help from the roof. 24Mr Keen strenuously denied having misheard or misunderstood what Mr McGlashan said to him over the phone. He was sure about it precisely because it was "profound" and "extraordinary". I think, however, given the circumstances that Mr Keen probably misunderstood what Mr McGlashan had said. The words he recalled are very close to what Mr McGlashan said happened i.e. the wind blew the ladder down and he jumped off. Mr Keen could easily have been mistaken and I find that he was. 25It was Mr Keen who passed on to Mr Fitzgerald the version that Mr McGlashan jumped from the roof after the ladder fell. He attended the furniture factory at Sefton with this version in his mind. Like "Chinese whispers", the propogation of an erroneous version can continue to grow. Even so, the additional detail about climbing down from the roof using the light fitting is hard to explain on that basis. It first appears in a note made by Mr Bamford on 11th September 2006 (Ex 5A). Mr Bamford recorded: Barry told Seth (Fitzgerald) he had climbed down onto a light and then dropped to the ground. Mr Bamford recorded that Mr McGlashan had told him "that the wind blew the ladder over with the wind on it". 26I find that Mr Fitzgerald was simply mistaken about the light fitting detail. In truth, that seems to me to be a highly improbable part of the story. It seems to be an embellishment that Mr Fitzgerald has re-constructed. I am not suggesting deliberate re-construction or any form of fabrication. However, for the reasons I have given, I do not regard this account as reliable. Its reliability is not enhanced by Ex 5A nor by Ex 4, a statement taken on 4th December 2006. As with "Chinese whispers" the introduction of an error is not validated by its repetition. 27I find that Mr McGlashan suffered injury when the wind blew over the ladder he was descending. He jumped free of it, landing heavily upon his heels and suffering the fractures I have already referred to. The duty of care issue 28The relevant legal relationship between Lidoran and Mr McGlashan was that of principal and sub-contractor. However, although he was a skilled and experienced tradesman, viewed from the standpoint of Lidoran he was not the supplier of specialist services. Rather he provided labour for the performance of Lidoran's core activities of roof fixing, and repair. He did not supply specialist equipment like the concrete-pumping independent contractor in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1. 29As I have already found, Mr McGlashan provided his experienced labour, personal hand tools usual to his trade, own transport and ladders for the performance of roofing work. He was not legally obliged to accept work offered, but was entitled to reject it. Obviously, his economic interests necessitated the acceptance of the allocation of work where he could. He was required to provide his own insurances including sickness and accident insurance and public liability insurance "with Lidoran Roofing noted as an interested party on the insurance policy". 30Although Mr Bamford approved B & J Roofing after an interview, the arrangement between Liddoran and B & J Roofing was not a subsisting and ongoing contract. Rather, each allocation of work which resulted in a separate claim for payment (as it happens signed by Jason) was a separate contract. The partnership warranted in each case"the work subject to this claim has been carried out and completed efficiently to the standard expected of competent tradespersons". 31By its amended defence, the defendant raised the issue of whether Mr McGlashan was a "deemed worker" to whom the principles discussed in Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236 applied, but in closing addresses the case was put that the relationship between the parties was one to which the duty formulated by Brennan J in Stevens v Brodribb Saw Milling Co Pty Ltd (1986) 160 CLR 16, at [47] - [48], as explained in Leighton Contractors, applied. 32As a unanimous High Court pointed out in Leighton Contractors at 12 [21], it is common in the construction industry for a principal contractor to have works carried out by sub-contractors rather than by direct employees. One advantage of this arrangement is that the principal does not incur the stringent obligations that the law imposes upon employers. The principle established in Stevens and explained in Leighton Contractors is not that a principal owes no duty of care to independent contractors engaged by it, but rather the duty owed is different in kind and content to the duty owed to employees. As Brennan J explained in Stevens at [47] - [48] An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. [my emphasis] Leaving aside obligations that may arise out of a need to exercise reasonable care in the co-ordination of various independent contractors, no ongoing duty to retain control of working systems is imposed provided it is reasonable to engage the services of independent contractors who are competent themselves to control the system of work without supervision by the entrepreneur. 33The unanimous court in Leighton Contractors (at [25] - [59]) said that where an independent contractor was engaged to perform work provided the contractor was competent, and provided that the activity of concrete pumping was placed in the contractors hands, [the principal] was not subject to an ongoing general law obligation with respect to the safety of the work methods employed by the contractor, or those with whom the contractor sub-contracted. 34It is this last proposition which represents the real difference between the parties in the legal positions for which they contended. That is to say, the plaintiff accepted he was a competent contractor, but argued that the activity of repairing the leaks had not been placed in his hands because Mr Keen had undertaken to provide a second man to assist in the task, namely himself. The defendant hotly contested this proposition. 35As a unanimous Court of Appeal pointed out in Pacific Steel Constructions Pty Ltd v Barahona; Jigsaw Property Group Pty Ltd v Barahona [2009] NSWCA 406, the dichotomy between employees and independent contractors for the purpose of the law of negligence involves some disadvantages to workers who chose to provide their labour as independent contractors, including the more limited circumstances in which they may be owed by the principal a duty to take reasonable care to ensure that the safe system of work is followed than if they provide their labour as employees (at [81]). 36Pacific Steel was a case involving a fall from a ladder. I am well aware that the similarity of facts provides no proper precedential value: see Roads & Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; (2007) 234 CLR 330 at 350 [56] - [58] per Gummow J. With that caution, the Court in Pacific Steel gave, with great respect, a useful example of the difference in the application in the law of negligence to an employee and an independent contractor at [86]: There can be results which might be thought curious. A head contractor such as Jigsaw may owe to its employees on the site a duty to take reasonable care in relation to sub-contractor A's system of work if there is risk of injury to the employees (see for example Leighton v Fox at [21]). It may owe a like duty of care to sub-contractor B if organisation of activities on the site is necessary to avoid or minimise the risk of injury. So, if Mr Barahona's unsafe use of the ladder brought risk of injury to a Jigsaw employee, or to sub-contractor B, through Mr Barahona falling onto the employee or the sub-contractor, Jigsaw could be obliged to exercise some control over the system of work being followed by Mr Barahona. But the risk of injury to Mr Barahona himself in the fall may not oblige Jigsaw to exercise control over that system of work. These results, however, flow from the ingredient in a duty of care of the person or class of persons to whom it is owed, and the maintenance of the differential duties of care owed to employees and independent contractors. [emphasis added] 37Having examined the facts in some detail, including the fact that the employee of the independent contractor in Pacific Steel was to work on site under the supervision of the site foreman, the Court in Pacific Steel held (at [115] - [119]) that unless the evidence revealed that the site foreman assumed responsibility to supervise the plaintiff as to how he did his work there may be seen to be an absence of foundation for a relevant duty of care owed to the plaintiff. The absence of that assumption of responsibility by the defendant (with or without known reliance) was fatal to the plaintiff's claim. 38In this context, it is convenient to refer to an argument advanced for the present plaintiff, that in the circumstances in which he was working on 7th September 2009 he was, in the legal sense, vulnerable. Vulnerability of course may be an important, even decisive, factor suggesting that one party owes a duty of care to another. However, as the defendant argued, vulnerability in this context has a particular meaning. It is not to be understood as meaning only that the plaintiff was likely to suffer damage if reasonable care was not taken: Rather, ''vulnerability'' is to be understood as a reference to the plaintiff 's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. [footnote omitted] (Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Another [2004] HCA 16; (2004) 216 CLR 515 at 530 [23]). 39It should also be pointed out that cases where notions of an assumption of responsibility and known reliance have been salient factors in imputing a duty of care are better explained by reference to notions of vulnerability: Woolcock Street at 531 [24]. 40Viewed in this way, the concepts of whether the principal has placed the task in the hands of the independent contractor; whether there has been an assumption of responsibility coupled with known reliance; whether the plaintiff is legally vulnerable, are different expressions of the same idea. 41Finding a duty exists, and when it does the content of it, are conclusions of law. However, the proper approach which may result in such a conclusion is a fact sensitive exercise requiring a close analysis of the facts bearing upon the relationship between the plaintiff and the putative tort feasor by reference to the 'salient features' or factors affecting the appropriateness of imputing a duty of care: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649 at 676 [102] per Allsop P (as his Honour then was). 42In the present case, the critical question is whether Mr Keen assumed responsibility, knowing Mr McGlashan relied upon him, to provide a second man to assist in the performance of the leak-repair work. Mr McGlashan says that he did, Mr Keen denies it. If the plaintiff is right, in my judgment, for the reasons I have explained, that "salient feature" would permissibly extend Stevens v Brodribb duty to meet the circumstances of the present case, notwithstanding that Mr McGlashan was an independent contractor. Did Mr Keen undertake to help Mr McGlashan in fixing the leaks 43 It's common ground that accepted safe practice in the roof-fixing industry involving work done, or accessed, from a ladder required either tying the ladder to the building, or a second person "footing" the ladder: Joint report of Hugh Stark and Ron Beckett of 1st May 2013 (Exhibit G(3)). An unaided tradesman would need to tie the ladder to appropriate anchor points, which he could be reached from ground level, before he ascended, according to the joint expert opinion, which I accept so far as it goes. 44None of the experienced roofers who gave evidence before me referred to this as a possible procedure. The common practice amongst roofers, as opposed to engineers, is that work required to be done using long ladders is a two-man job: cf Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at 369 [163] per Hayne and Callinan JJ. I find that by common practice in the roofing industry, work done, or accessed, from a long ladder, such as the work at the furniture factory at Sefton, is performed by two men for the purpose of securing the ladder during ascent and descent. 45Moreover, there was no evidence before me of any appropriate anchor point that could be reached from ground level to which Mr McGlashan could have secured the ladder at the Sefton job. 46It is also common ground that Mr Keen knew that Mr McGlashan was working alone on 7th September 2006. On his version, when he rang Mr McGlashan to call off work on that day, it was Mr McGlashan who inquired of the availability of leak-repair work. Mr Keen says that he informed Mr McGlashan that he would not know until after 9 am when customers might ring in with complaints. It does not matter whether Mr McGlashan or Mr Keen is correct about who first raised the possibility of the performance of leak-repair work, although I think it more likely that Mr Keen's version is correct. 47In any event, it transpired that leak-repair work was available and that Mr Keen contacted Mr McGlashan about performing it after 9 am. It is also common ground, as I have said, that by the time the work was offered Jason had made other arrangements and was not available to perform it. 48Where Mr McGlashan and Mr Keen in substance, part company, is on the question of whether Mr Keen assumed responsibility for providing a second man, according to Mr McGlashan, it was Mr Keen himself, knowing that Mr McGlashan was relying upon him to do so. It is at this point that I have found some of Mr McGlashan's evidence difficult to accept. I should add, I find some of Mr Keen's evidence about this topic difficult to accept. 49In his evidentiary statement, Mr McGlashan said that he needed assistance to carry out the work because it was a two-man job. Mr Keen assured him that he would join him at the first job after he had completed his paperwork. Mr Keen did not show up, but there was a scissor lift from which the roof could be safely accessed which Mr McGlashan said he used to locate and repair the leaks. The second job was at a Toyota factory. Again, Mr Keen did not turn up. Mr McGlashan used his extension ladder to access the roof and fix the leak. He said the roof was not high. Sefton was the third job. 50He expanded upon this in his oral evidence. He said that at the Shell Refinery he used the scissor lift to locate the leak. And the factory directed him to an internal staircase by which the roof could be accessed. He used that staircase in fixing the leak. Having done so he rang Mr Keen and informed him he was now going to the second job. He says Mr Keen said: "I should meet you at that job". Mr Keen did not show up, but the building was small, "only about 8 foot to the roof" and he was able to access the roof easily from his ladder. 51After that job he rang Mr Keen again, told him he was going to Sefton, and Mr Keen said "I'll meet you there". 52When he arrived at the job site, he had difficulty making himself understood by the Asian workforce, but eventually he "got it through to them". He then rang Mr Keen again. The following conversation took place: (20.20T) Then I rang Jared. I said "where are you Jared?" He said "I am still in the office doing paperwork". And I said," Well it's dry here at the moment I will try to fix this leak". Mr McGlashan explained that it is important that it was dry because the silicone, which he used to repair the leaks, would then stick. Mr Keen said, "Do what you can". He explained that he thought he should proceed without assistance because there was a risk of the customer's product, furniture, being damaged by the water. He said (21.15T): ... when I rang Jared and he said he was still at the office I took it on myself to put the ladder up and do the job, fix the job. 53In cross-examination Mr McGlashan accepted that he was a very experienced roofing contractor who well knew how to fix a leak. He had done that work many times before 2006 and he "did not need Lidoran to tell him how to do roof leak work" (43.20T). He denied that Mr Keen said to him it was enough "if you could identify the leak, see if you can fix it, or if not, just find out where the leak was" (45.30T). He agreed that he did not need instructions to do the jobs safely (46.5T). He agreed that Mr Keen did not give him any instructions about using a ladder or how to go about his task. Mr McGlashan agreed that all he was asked was "to go out and see if he could identify the leak, and if possible fix it" (48.15T). 54When asked whether he attempted to enlist the help of someone to hold the ladder at the furniture factory he said he did (50.15T). But Mr McGlashan explained that he could not make himself understood. 55He denied that Mr Keen "was never going to be assisting you" (51.50T). 56In his statement, Mr Keen said that he had allocated three repair jobs to Mr McGlashan, instructed him to identify the source of the leak, "and either draw a map of where the water was penetrating or if [safe] so to do, make it water tight". He left it to Mr McGlashan to make his own assessment of whether the roof was safe to repair. At [25] of Exhibit 9 he said: At no time during the day did Barry advise me that he needed any assistance or did he request any assistance. I did not inform Barry that I would assist him with the work. I never assisted sub-contractors with leak repairs. This was not my role. Sub-contractors are engaged to perform this work. It is minor work and I consider that experienced subcontractors such as Barry would have been capable to assess whether he could perform the work. 57He maintained this denial in cross-examination. He said there was no one at Lidoran to help, "otherwise they could have went with him" (149.5T). He maintained that Mr McGlashan had no obligation to fix the roof. 58He accepted that roofing work could be dangerous. I understood this to be because of the risk of falling. But he was of the view, depending upon the size of the job, there was no difficulty in one man working from a "regular extension ladder" (144.15 - .30T). He did say he was surprised that Mr McGlashan had turned up on his own as he was expecting both father and son. Notwithstanding this, he felt it was really a matter for the tradesman. "If they felt unsafe then they could have someone foot the ladder. But if they feel safe with it, walk up the ladder, go up the ladder. Climb the ladder" (146.20T). 59I have difficult accepting Mr McGlashan's evidence that Mr Keen repeatedly assured him he would come and help. I reject this part of his evidence. I find that Mr Keen did not regard it as part of his job as Production Manager to assist a subcontractor perform leak-repair work. He never offered to do so on 7th September 2006. 60At the same time, I find that Mr Keen had the expectation that this work would be a two-man job and that when he offered it to Mr McGlashan he had the expectation that the father and son would undertake the work, because situations could arise where to perform the work safely, and in accordance with the industry practice, two men were required. This is why he expressed surprise that Jason did not attend with his father (144.30 - .40T). This is also why he said "if they felt unsafe they can have somebody foot the ladder" (146.20T) and why he said if someone else had been available they could have gone with Mr McGlashan (149.5T). 61I reject Mr Keen's evidence that Mr McGlashan wasn't under any obligation to fix the leaks. The whole idea of allocating leak-repair work on rainy days was to keep the customer satisfied. Mr Keen's statements to the contrary are completely disingenuous. 62Accordingly, I have rejected Mr McGlashan's evidence that Mr Keen offered to be the necessary second man. I have also rejected Mr Keen's evidence that Mr McGlashan had no obligation to fix the leaks. It was expected he would do so. I find that notwithstanding the industry practice, if Mr McGlashan was prepared to do the work on his own, Mr Keen was content to let him do it. And Mr McGlashan was so prepared. Conclusions about duty 63I return then to the question of whether Lidoran owed Mr McGlashan a duty of care in particular circumstances of the case. I reject the argument that Lidoran assumed responsibility for Mr McGlashan's safety knowing he relied upon them for that purpose. 64Both Mr McGlashan and Mr Keen knew the risk of injury by falling if any of the jobs required the use of a long extension ladder to a significant height. In this sense, the risk was certainly foreseeable. Moreover, both were aware of the expectation that Mr McGlashan would perform the leak-repair work allocated to him. In this regard, it was clearly foreseeable that he would access a roof to repair a leak using a long extension ladder, working alone, contrary to industry practice. Do these circumstances, relevantly, constitute an inability of Mr McGlashan to protect himself from the consequences of Lidoran's want of reasonable care in allocating the work to one man rather than the expected two? 65It might be said that as an experienced, and independent, contractor, Mr McGlashan might have refused the work once he knew that Jason was not available to assist. I do not accept the argument that he felt compelled to accept for fear of losing future work. Once that position is reached, bearing in mind the important differences in the treatment the law of negligence affords employees, on the one hand, and independent contractors on the other, I do not accept that in accepting the work on 7th September 2006 Mr McGlashan was relevantly vulnerable. 66Again bearing the differences between employees and independent contractors in mind, one returns to the formulation of Brennan J in Stevens. A principal contractor who organises an activity involving a risk of injury is under a duty to use reasonable care in organising the activity to avoid or minimise the risk. The duty arises because the principal is creating the risk. The content of the duty is to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. There is no duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. 67The question in the present case is whether Mr McGlashan was competent to control his own system of work without supervision given that it was known that he proposed to work alone, contrary to the common practice in the industry. In these circumstances, was Lidoran either bound either to withhold the work from Mr McGlashan or provide the usual assistance? 68I have not found the question of duty in this case easy to resolve. In the end, however, I have decided that extending the principal's duty to an independent contractor beyond Brennan J's formulation in this case is unwarranted, even accepting that the categories are not closed. 69In my judgment, the arguments for and against imputing duty in the present case are relatively evenly balanced. But principles of legal coherence tell against the imposition of a duty. Freedom of contract remains a fundamental value of the common law. Legally, Lidoran and Mr McGlashan were entitled to make a contract that Mr McGlashan would undertake leak-repair work alone. Lidoran was entitled to leave it to the judgment of an experienced tradesman, like Mr McGlashan as to whether a particular job could be undertaken safely by him. Mr McGlashan was entitled to decide not to perform a particular repair if he judged it required a second man, even if only for the purpose of "footing" a long extension ladder, notwithstanding the expectation of Lidoran to the contrary. A decision by him not to perform a particular repair might possibly have commercial ramification if Lidoran took that as a sign of "unreliability". But as I have said this did not make Mr McGlashan "vulnerable" in the legal sense. Nor do I have any doubt that, on the findings I have made, Lidoran put the whole task of repairing the leaks in Mr McGlashan's hands as a competent independent contractor. They were entitled to leave it to him, notwithstanding the industry standard that long ladder work is performed by two men. 70In Koehler v Cerebos (Australia) Ltd [2005] HCA 15; 222 CLR 44 at 56 [31] four Justices of the High Court of Australia said: Giving content to what we have called an "external standard" by which work requirements would be judged may not be easy. Presumably, it would be some form of industry standard. Assuming, however, that content can be given to that concept, its application would invite attention to fundamental questions of legal coherence. Within the bounds set by applicable statutory regulation, parties are free to contract as they choose about the work one will do for the other. In particular, within those bounds, parties are free to stipulate that an employee will do more work than may be the industry standard amount. Often the agreement to do that will attract greater rewards than the industry standard. Developing the common law of negligence in a way that inhibited the making of such agreements would be a large step to take. 71I appreciate that Koehler concerned whether an employer was liable to an employee for psychiatric injury. Considerations very different from those relevant to the present case apply in employer's liability cases. And different considerations again apply to cases of psychiatric rather than physical injury. Bearing these important differences in mind, I am of the view that the statement I have quoted is apposite in the present case. 72Some emphasis was placed upon the obligations imposed by the Occupational Health and Safety Act 2000 (NSW) (repealed) and the Occupational Health and Safety Regulation 2001 (NSW) (repealed), in force at the time of Mr McGlashan's injury. It may be that these statutory requirements set bounds for the performance of the work undertaken by Mr McGlashan. However, in my judgment, they make no difference to the question of whether a duty arises, and if so, its content for the reasons discussed by the Court of Appeal in Pacific Steel at [117]-[122]. 73The plaintiff relied upon s 10 of the Act and Clauses 5, 34, 35, 37 and 39 of the Regulations. Other than Clause 39 concerned with safe access to places of work, each of these provisions is of the most general kind. They cannot be construed as impeding the freedom of Lidoran and Mr McGlashan to make a contract. Nor in my view does Clause 39 make any difference. As Mr McGlashan undertook performance of the work as an independent contractor, if these provisions are applicable, Mr McGlashan may be the person required to comply with them: HC Buckman and Son Pty Ltd v Flanagan and Another (1974) 133 CLR 422 at 429. 74In my opinion, Lidoran did not owe Mr McGlashan a duty of care in the performance of work at Marjorie Road Sefton which extended to an obligation to exercise reasonable care for his safety by instituting and maintaining a safe system for the performance of the work including the provision of a safe means of access to the roof. The question of breach of duty 75My conclusion on duty makes it strictly unnecessary to consider questions of breach. However, it is appropriate that I express my views about that question. The question of whether Lidoran was negligent must be considered on the basis of the findings of fact I have made. That is to say, Mr McGlashan did not voluntarily and unnecessarily jump from the roof, rather the ladder blew down as he was descending and he was forced to jump clear of it. 76The question of breach is to be decided by reference to the provisions of s 5B Civil Liability Act 2002 (NSW). The case against Lidoran is that it was negligent by failing to taking the precaution of providing a second man to foot the ladder against the risk of Mr McGlashan suffering personal injury by falling (or jumping) when an unsecured ladder fell or blew down. 77Assuming a duty of care which extended to the institution and maintenance of a safe system of work, Lidoran knew or ought to have known of the risk. Everyone in the industry knew long ladder work could be dangerous. That danger was constituted by the risk of serious injury by a workman falling from a height. The risk was not insignificant. Serious injury, or even death, could ensue. Given the standards prevailing in the industry, a reasonable person in Lidoran's position would have taken the precaution of providing adequate means of securing the ladder, even to the extent of providing a second tradesman, or offsider, to foot it if required. 78In deciding that a reasonable person in Lidoran's position would have taken the precaution I have described, I have taken into account that there was a significant degree of probability that personal injury would occur if care were not taken. The risk of falling from unsecured ladders was well recognised in the industry, doubtless because experience had shown the risk is likely to materialise if care were not taken. Given the heights involved, serious injury, or even death, are likely consequences of a fall. The burden of taking precautions by the provision of an additional worker may be said to be not insignificant, but viewed against the likely seriousness of the harm, the burden is not unreasonable. Indeed, its reasonableness may be tested by reference to the industry standard. 79Commercial and economic activity has social utility, and obviously so. However, that consideration would not tell against the reasonableness of adopting the precaution of requiring roofing workers to work in pairs. It has been well recognised for centuries that the fruits of economic activity may come at too high a price in terms of the consequence of industrial accident. The recognition of this underpins the stringent duty the law of negligence imposes upon employers for the benefit of their employees. 80On the findings of primary fact I have made, I am well satisfied that but for the availability of a second person to foot the ladder during Mr McGlashan ascent and descent, his personal injury would not have occurred. That is, the failure to take the precaution I have described was a necessary condition of the occurrence of his personal injury. Had Lidoran owed Mr McGlashan a duty no question would arise about the scope of the former's liability. One purpose of the law of negligence where breach of a recognised category of duty occurs is to provide compensation for the consequences of it, especially in cases of personal injury. The damages to which Mr McGlashan would otherwise be entitled 81The quantum of damages does not arise given the decision I have made that Lidoran did not owe Mr McGlashan a duty of care. However, again, it is appropriate that I assess the damages I would have awarded had I been of a different view. The following narrative sets out my principal factual findings. 82Mr McGlashan is a married man who was born on 27th October 1949. He was approaching the age of 57 when injured and is now aged about 64 years and 6 months. 83As I have said, he is a carpenter by trade and most of his work over recent decades has been in metal roofing. 84He gave evidence before me that he had a criminal record as a younger man, including some offences of quite a serious nature. Following this accident he was jailed from 7th September 2009 to 7th September 2010 for possession of a significant quantity of illegal drugs. He gave evidence that he was tempted to engage in this illegal activity by his strained financial circumstances due to his inability to work because of his injuries. I accept that this explains the offending, obviously it does not excuse it. 85As I have said before, he suffered severe fractures to the heel of each foot requiring fixation and subsequent surgery to remove the fixation devices. The first surgery was undertaken on 15th September 2006 by Dr Roderick Kuo. The second surgery, on 12th June 2008, was needed because of ongoing pain and discomfort resulting from the prominent heads of the screws by which the fractures had been fixed. He has developed post-traumatic osteo-arthritis causing ongoing symptoms. In their joint report (Ex. F(3)), Dr Davis, an occupational physician, and Dr Cummine, an orthopaedic surgeon, are of the view that the arthritic change in Mr McGlashan's subtalar joints may require arthrodesis in the future. Dr Kuo is of the same view. 86Mr McGlashan was in severe pain after the accident which required morphine and he was wheelchair bound leading up to his surgery and after. He remained in a wheelchair until about the end of November. It was necessary to modify his home by constructing a ramp to enable him to access his house during that period. He required personal attendant care during this time. 87The relationship between Mr McGlashan and his wife was a modern one and he assisted with domestic chores relating to cooking and ironing as well as looking after the yards and routine home maintenance. He was unable to attend to any of these matters whilst he was in a wheelchair. 88When he became more mobile he ambulated on crutches until about March 2007. Initially, however, he was not able to weight bear longer than about 20 minutes. 89He still has pain in his feet and requires Panadeine Forte for relief. He has to frequently rest with his feet up. He is able to do household activities including mowing the lawns, but needs to pace himself. He cannot stand for long periods of time ironing. 90Before the accident he played lawn bowls, golf and waterskiing. He has not been able to resume waterskiing or golf, but can play bowls since the early part of 2013, although he needs to sit down between ends. 91He has suffered depression because of his altered circumstances and the resulting financial difficulties. He cannot envisage performing any work of a type he has previously performed in his life. The doctors are against him working at heights and also against him working on uneven surfaces. As I have said already, his literacy and numeracy are poor. Because of this, his age at the time of the accident, and his significant on-going incapacity it is very doubtful that he will be able to re-enter the workforce. But for his injury he would have worked beyond the age of 65. 92He is prepared to undergo the arthrodesis when recommended by his doctors. 93He has received assistance from his wife, his son and some friends to perform the activities of daily life he is unable to perform for himself. His wife, however, has health issues including degenerative blindness of gradual onset and she will be unable to assist him in the future. 94There is no real issue about any of this. The arguments concentrated on how the losses I have described ought to be assessed, there was not much difference between the parties. The most significant argument was about the extent to which Mr McGlashan was entitled to damages for domestic assistance, and what findings should be made about any residual capacity to work. 95For the reasons explained at [91], I find that he really has no residual earning capacity he can reasonably exploit in the labour market for wages. Effectively, he is totally incapacitated. The defendant argued that his most likely future circumstances, but for the injury, were affected by other factors which should be reflected in the amount allowed for both past and future economic loss. Particularly, it was argued I should find that he probably would have offended in any event and his incarceration would necessarily have put an end to his partnership business with his son. On this basis he would have found it very difficult to go back into the workforce at his age. Really, this meant he would have been on the industrial scrapheap because of that, in all probability. 96I reject this argument. Although he has some serious criminal offences in his past, as at 7 September 2006, I am of the view that this was behind him. Regrettably he succumbed to temptation, I accept, because of his strained financial circumstances due to his incapacity. But for the injury he would not have offended. This does not mean the offending and its consequences sound in damages. Naturally those matters are beyond the proper scope of Lidoran's liability for the purpose of s 5D(1)(b). No allowance, of economic loss will be made for the 12 months he spent in prison, but otherwise I will proceed on the basis that he would have been fully employed in his trade until the age of 67 years, subject of course to the usual 15 per cent discount for the vicissitudes of life. This allowance, it seems to me takes into account adequately the prospect that he may yet find some odd jobs within his very much reduced and theoretical earning capacity. 97The amount claimed is $700 per week. This is well below the $35 per hour he was earning selling his labour to Lidoran. This claim is advanced on the basis that because he and his son were in partnership, providing their own transport, tools and insurances some discount should be made over and above the discount for taxation. It seems to me that this broad and modest approach also accommodates the idea that he may obtain odd jobs within his residual capacity from time to time and I will adopt it. 98I will turn then to the question of damages for personal care and domestic assistance. In this regard, I accept the assessment of Glynis J Flannigan (Ex. F1), occupational therapist, as expressed in her report of the 26th of June 2009. I appreciate that her assessment on an ongoing basis is somewhat less than the assessment made by Dr Davis in his report of 13th December 2010 (Ex. E2). It seems to me that the detailed assessment undertaken by Ms Flannigan in her capacity as an occupational therapist is more persuasive. She spent quite some time with Mr McGlashan and observed him attempting to perform many of the ordinary activities of daily life. Having said this, I think it appropriate to apply a broader brush than Ms Flannigan who has measured things rather too finely, giving her assessment a somewhat artificial air of precision which should be eschewed. 99I am satisfied that Mr McGlashan satisfied both the intensity and duration thresholds for a period of about 2 years after the accident. This takes him to about three months after the surgery to remove the screws which had some effect in relieving his pain and therefore his disability. During this period of time I am satisfied that principally his wife and his son provided personal care when necessary and assistance with the activities of daily living. Occasionally friends may have supplemented their efforts. Obviously much more assistance was required early on than later. Doing the best I can, I propose to allow an average of 12 hours per week over 2 years of voluntary assistance actually provided. I find that that in no week during this period did he require less than 6 hours per week. The reality is that it had probably tapered down to that level by September 2008. 100Between September 2008 and the present, I think his net need is less than 6 hours per week. In my assessment around 4 hours per week for the heavier aspects of his previous chores, including the ironing, is appropriate. That is, of course, below the intensity threshold and there is no entitlement to damages under this head for that period. 101So far as the future is concerned, I accept that his wife, by reason of her disabilities will be unable to provide the assistance she has provided so far and for this reason it is likely that Mr McGlashan will have to fall back on commercial care in the future and I propose to allow 4 hours per week in that respect into the future, reduced by 15 per cent for the vicissitudes of life. 102I turn then to the individual heads of damage starting with damages for non-economic loss. Considering Mr McGlashan's age, the pain and suffering he has and will suffer, the loss of amenities of life I have already described, loss of enjoyment of life including the significant interference with his activities of daily living, I assess this case as equivalent to 33 per cent of a most extreme case entitling Mr McGlashan to damages for non economic loss in the sum of $182,000. 103Out of pocket expenses are summarised in Exhibit H. There seems to be no serious issue about them and I allow them as claimed rounding the figure down slightly to $18,000. 104For past economic loss, on the findings I have made, omitting the period of his incarceration, I allow $700 per week for 345.8 weeks, totalling $242,060. 105As Mr McGlashan was self-employed, in partnership, it is not appropriate to make any allowance for loss of compulsory employer contributions to superannuation on the past wage loss. 106Mr McGlashan is now aged 64 years and 6 months. He has 2.5 years of working life, according to my assessment, ahead of him. I will adopt the 5 per cent discount rate, a multiplier of 122.5, and allow a 15 per cent discount for the vicissitudes. The figure for future economic loss is $72,887.50. Again as he is self employed, no allowance should be made for employer funded superannuation. 107For past voluntary care I allow 12 hours per week for 104 weeks at an hourly rate of $23.50. The total is $29,328. 108For future care, I allow 4 hours per week for 21 years applying the medium life expectancy table; the hourly rate I allow is $36; the discount rate for 21 years on the 5 per cent tables is 685.6. I will reduce this by 15 per cent for the vicissitudes. The final figure is $83,917.44. 109As I have said, Mr McGlashan will undergo the arthrodesis when required. Dr Kuo has assessed the total cost of this as in the range of $12,000 to $15,000. He also says that the operation should be delayed for as long as possible. Currently Mr McGlashan only requires strong analgesics. But it is likely that his condition will deteriorate up until the time he requires arthrodesis and other treatment will be called for. Deferring the cost of the future surgery, but bearing in mind other, albeit modest, ongoing costs, and again adopting a necessarily broad brush approach, I consider an allowance of $17,500 to be appropriate. 110Subject then to an allowance for pre-judgment interest calculated in accordance with the provisions of s 18 Civil Liability Act 2002, I would have assessed damages in the sum of $645,693. Orders 111I answer the separate questions as follows: (1)Is Lidoran Roofing Pty Ltd legally liable to pay damages to the plaintiff for the consequences of the injuries received by him on 7th September 2006: Answer - no. (2)If the answer to (1) is yes, to what amount of damages is the plaintiff entitled? Answer - question does not arise. 112In accordance with the wishes of the parties I have not dealt with the question of the insurer's liability under s 6 Law Reform (Miscellaneous Provisions Act) 1946. 113For the purpose of finalising the matter, it is listed for directions before me on Friday 9th May 2014 at 9:30 am ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2014