Australia: Scott Samways v WorkCover Queensland and De Luca Properties and Lynsha [2010] QSC 127
Insurance Update May 2010

This single judge (Applegarth J) decision of the Queensland Supreme Court concerns the commonly encountered considerations of duty of care and liability of those working on a construction site, as well as the application of a contractual indemnity between the principal contractor and a subcontractor.

The plaintiff was injured on 6 December 2005 when he walked into the raised bucket of a bobcat. He was a concreter, employed by the first defendant. He had been instructed by his supervisor to locate and retrieve some conduit pipe on the ground. A bobcat was parked close to where the plaintiff and others were preparing the concrete slab for pouring. He did not notice the raised bucket of the bobcat and he walked into it, injuring his left shoulder.

He brought a claim against his employer (first defendant), the principal contractor (second defendant) and its subcontractor who owned and operated the bobcat (third defendant).

The bobcat had been left in that place by the subcontractor. The bucket was raised to 1.5m to enable the operator to fix a failed hydraulic hose. The operator returned the next morning with a replacement hose and fixed the excavator, but then neither lowered its bucket nor returned it to its usual parking place out of harm's way.

There was a contract between the principal contractor and the bobcat owner/operator, which included two particular relevant clauses. The first provided that where the subcontractor also provided a driver for the machine, as in this case, the driver was under the sole control of the hirer (i.e. the principal contractor) and regarded as the servant/agent of the hirer. Furthermore, the contract contained an indemnity which provided as follows:

Findings

The trial judge did not accept the plaintiff as an honest and credible witness. The plaintiff admitted providing inaccurate and misleading information to doctors who he saw for medico-legal purposes, in order to enhance his claim. Although the actual incident was not observed by persons on the site, the plaintiff immediately reported it and received treatment from his general practitioner on the same day. Whilst the judge did not accept the plaintiff's allegations about the precise circumstances of the incident, he did accept that the plaintiff struck his shoulder on the raised bucket of the bobcat.

The judge found that each of the plaintiff's employer, the principal contractor and the bobcat subcontractor, were liable in negligence to the plaintiff.

Subcontractor

The subcontractor was vicariously liable for the negligence of the operator who left it parked in a position with its bucket raised that was unsafe on a worksite with workers in the area. The judge said that proper practice would be to park the machine in a designated place away from pedestrian traffic or at least to lower its bucket to the ground. The subcontractor gave evidence that "A bright red bobcat in the middle of the paddock is pretty hard to miss", but the judge noted that the bucket was not painted red, that it was not in the middle of a paddock and that the operator himself conceded that he would not ordinarily leave the bobcat in that position.

Principal contractor

The judge referred to the recent decision of the High Court in Leighton Contractors v Fox and noted that, in some circumstances, a principal comes under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The judge found that the plaintiff's employer raised concern with the principal before the incident about the danger of the bobcat. The principal did not appreciate that the bobcat had been repaired at that it was able to be moved. The judge found that the principal should have directed the bobcat driver to move it to a safer location or direct that it be fenced off in the event of a delay in having it moved. The judge said that bright plastic barricading material could have been erected to isolate the bobcat and its bucket from work areas. The principal contractor's foreman accepted that if he had been on site on the morning of the incident and seen the bobcat in that position, he would have barricaded it.

Plaintiff's employer

The judge noted the employer's duty to be non-delegable, to take reasonable care to avoid foreseeable risk of injury. The employer's foreman appreciated the risk of the raised bucket of the bobcat parked in the vicinity of where his crew was working. He verbally warned the crew to avoid the bobcat, and he asked the principal contractor to move it but was told (wrongly) that it could not. The task assigned to the plaintiff of looking for conduit required him to focus his attention on the ground whilst walking in the vicinity of the bobcat, and carried the risk of injury despite the earlier warning. The court noted that the employer could have arranged for a simple plastic barricade supported by star pickets to surround the bobcat. Barricading material was available on site. The judge said that in circumstances where the principal contractor and the subcontractor had neglected to cause the source of the danger to be moved, the employer had an obligation to ensure that its workers were not unreasonably subjected to it. The employer should not have directed the workers to carry out tasks in the vicinity of the bobcat unless and until it was barricaded.

Statutory duty

The plaintiff had also pleaded a case against each defendant on the grounds of breach of statutory duty (Workplace Health and Safety Act). It would have been helpful and interesting to receive the Supreme Court's judgment in respect of the statutory duty and the potential liability of each of the defendants in the circumstances of this case. However, the judge said that the findings of negligence made it unnecessary to address the alleged breaches of statutory duty and a legal issue of whether such breach gives rise to a private, civil cause of action. This largely remains a moot point in Queensland.

Contributory negligence

The judge also found that the plaintiff was contributory negligent. He said it was not a failure born of "inadvertence, inattention or misjudgement" (McLean v Tedman) or where the plaintiff's inattention was "bred of familiarity and repetition" (

Sungravure v Meani

The judge accepted the evidence of engineer Mr McDougall, that the plaintiff might not reasonably either detect the presence of the raised bucket or recall it at the critical time, particularly when working on a construction site and focussing on a task. However, the judge found that neither the task required of him nor regard to his own safety required the plaintiff to have his vision always fixed on the ground immediately in front of him, and that the exercise of reasonable care for his own safety required him to glance up from the ground regularly to avoid potential hazards. The failure to do so justified a reduction of his damages by 20% on account of contributory negligence.

Apportionment

The judge considered it just and equitable to apportion liability between the joint tortfeasors with 10% against the employer, 30% against the principal contractor and 60% against the subcontractor.

Contractual indemnity

The judge referred to the usual principles of interpreting such a clause. He noted there is a line of authority to construe an indemnity clause on the assumption that it is inherently improbable that one party would contract to absolve the other party against claims based on the other party's negligence, and a competing view that at least one purpose for obtaining or seeking such an indemnity is to protect that party against liability for its own fault.

The judge looked at the particular words in the indemnity clause here and construed the clause in the context of the contract as a whole. Whilst the clause did not specifically state that the indemnity included claims in respect of the subcontractor's own negligence, the judge found that this arises from the ordinary language of the clause. He found that the commercial and contractual context of the clause does not make it improbable that the subcontractor would seek to be indemnified against claims for damages caused by its own negligence. In this regard, the judge particularly noted that the bobcat was ultimately under the control of the principal contractor. He said "Lynsha (subcontractor) might be found liable to a third party by reason of the negligence of its employee, as occurred in this case. However, as between Lynsha and De Luca (principal), the employee was under the control of De Luca. In circumstances in which Lynsha ceded control over the operator and De Luca assumed that control, the clause should be construed according to its ordinary meaning to extend the claims for liability for personal injury in circumstances in which Lynsha is vicariously liable for the negligence of its employee". It was critical in the judge's decision that the driver of the bobcat was deemed and actually under the control of the principal contractor in this case.

The judge also concluded the meaning of the word "use" in the context of indemnity clause should not be restricted to the actual driving of the bobcat, but it is wide enough to include circumstances where the machine is utilised for some purpose, including whilst it is stationary at the worksite.

Therefore, the judge concluded that the subcontractor is entitled to an indemnity against the plaintiff's claim and in respect of any costs to the plaintiff and its own costs of defending the claim from the principal.

Damages

The judgement was permeated by the finding that the plaintiff was an unreliable historian who provided misleading and inaccurate evidence to doctors. The judge particularly noted that the plaintiff had more medico-legal appointments than treatment appointments. The judge considered that the opinions of the plaintiff's medico-legal experts (psychiatrist, neurologist, orthopaedic surgeon, and occupational physician) were flawed because of the plaintiff's misleading presentation. The judge said; "Having regard to the medical evidence concerning the plaintiff's left shoulder injury and the need to discount medical opinions that were based upon an unreliable or inaccurate history given by the plaintiff, I conclude that the plaintiff suffered a relatively minor soft tissue injury to his left shoulder ".

The plaintiff's damages were assessed in the grand total sum of $26,007. In particular, no allowance was made for future economic loss on the basis of the findings that the left shoulder injury largely resolved within 2 years, the plaintiff was able to return to work as a concreter and the judge was not persuaded that the injury and any consequential adjustment disorder impaired the claimant's future earning capacity.

Conclusion

It would seem to be a Pyrrhic victory for the plaintiff given the meagre damages awarded. It is a good example of a case where the plaintiff's credibility and unreliability will generally taint the case.

On a sound note for defendants, the case indicates that not every plaintiff will prove an entitlement to an award for an impairment of their future earning capacity.

Whilst the nature of the duty of care owed by participants on a work site is settled law, an application of the law still depends greatly on the particular facts and circumstances of the case. The same can be said of construing a contractual indemnity clause.

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