The Plaintiff, Mr Speziali, claimed damages for work-related injuries he suffered in the course of his employment with the First Defendant, Nortask Pty Ltd (Nortask), who was carrying out repair works at the premises of the Second Defendant, Dalby Bio-Refinery Limited (Dalby). Mr Speziali was employed by Nortask as a rigger/dogger.
Facts of the case
On 15 June 2017, Nortask was working on the metal flooring of a 14.5 metre silo (described as the Cyclone) at Dalby’s premises. Mr Speziali arrived at about 8.35am to Dalby’s premises, and noted the ground conditions were very boggy, with clay-like soil sticking to everything. The entire site was muddy, waterlogged, and even the concrete platform had puddles. The access system to the Cyclone was constructed of hot-dipped galvanized steel, resulting in a very smooth surface. This made the ladders extremely slippery due to the water. The top of the Cyclone was accessible by three ladders, with platforms placed in between the ladders.
Despite the slippery conditions, Mr Speziali climbed the ladders cautiously to reach the top of the Cyclone and performed his required tasks. When descending the top ladder, Mr Speziali maintained the industry standard of three points of contact. However, approximately a third of the way down the top ladder, he placed a foot on a rung and it suddenly slipped. This caused him to lose balance, tumbling downward, hitting various parts of the ladder and platforms, before eventually landing on the concrete below. Rather than landing on the mid platform, he tumbled over the mid platform guardrails to the ground. As a result, his work-related injuries were assessed as causing a 48% loss of whole person function.
Although a JSEA completed by Nortask referred to the use of harnesses and lanyards whilst working at heights:
- that was considered a reference to working on the top platform;
- Dalby allowed its own staff to access the ladders without the use of any fall arrest system; and
- there was no certified anchor point on the ladders for use of lanyards and harnesses when on the ladders.
Dalby’s access system for the Cyclone was non-complaint with the relevant Australian Standard in that:
- the horizontal distance between the top ladder and the rear guardrail of the mid platform was 890mm rather than 900mm; and
- the distance between the top ladder and the side guardrail of the mid platform was 410mm rather than 500mm.
The employer, Nortask, admitted liability. The issues in respect of liability concerned:
- the liability in negligence of Dalby to Mr Speziali;
- any contributory negligence of Mr Speziali; and
- the appropriate apportionment and contribution as between Nortask and Dalby.
In determining the liability of Dalby, Justice Hindman examined the relevant data about the access system.
The key failure of the access system was the unacceptably large gap between the bottom of the steel cage around the top ladder and the top guardrails of the mid platform which permitted the circumstance that a person slipping from the top ladder may go over the top of the mid platform guardrails.
Given this failure, the Court held that it was unnecessary to determine if the slipperiness of the ladder rungs themselves constituted negligence by Dalby, as even a misstep on the top ladder in dry conditions may have had the same outcome of a fall to the ground as a result of the sub-standard guardrails.
Identifying and rectifying the non-compliant gap between the top ladder steel cage and the mid platform guardrails was Dalby’s responsibility, as occupier of the premises. Dalby should not have permitted the use of the top ladder whilst non-compliance existed. The Court held that the access system’s compliance was not a matter to which Dalby could leave to the responsibility of those who might attend their premises.
The Court found that the risk of a person in descent slipping from the ladder and falling within the steel cage toward the mid platform was foreseeable, particularly given the lack of a fall arrest harness, no anti-slip coating on the ladder runs and the implementation of a steel cage around the top ladder and guardrails indicating it had been built with fall risks in mind. If a person did slip, the Court found that it was foreseeable that they may at the end of the steel cage tumble over the mid platform guardrails to the ground below. This risk was not insignificant, and the distance from the mid platform to the ground was significant and the ground was concrete. The Court held that a reasonable person in the position of Dalby would have:
- identified the non-compliance of the access system with the relevant Australian Standards;
- identified the risk that person falling would fall through the gap between the steel cage and the guardrails; and
- closed the gap.
The Court held that causation was satisfied, as the non-compliance whilst small, was critical and not merely trivial. It was sufficient to constitute a lack of reasonable care by Dalby, as the mid platform failed to arrest Mr Speziali’s fall. Compliance with the relevant Australian Standard would not have permitted Mr Speziali’s fall to the ground.
Accordingly, the Court found Dalby liable for the injury caused to the Mr Speziali.
Contributory negligence analysis
Dalby alleged that Mr Speziali’s injury was caused and contributed to by his failure to take precautions against the risk of injury to himself; that a reasonable person in his position would have taken. When determining contributory negligence, the standard of care Mr Speziali is held to is that of a reasonable person in his position and is based on what a plaintiff knew or ought to reasonably have known at the time.
The Court held that there was no contributory negligence on the part of Mr Speziali, as: there was nothing unreasonable in the way the ladders were being used by Mr Speziali; the ladder was not constructed for ready use with a fall arrest harness; and, it was reasonable for Mr Speziali to assume that the ladders were safe for use in a wet condition.
Accordingly, Dalby failed to establish contributory negligence on the part of Mr Speziali for his work-related injuries.
Apportionment of negligence and Dalby's claim against Nortask
By way of a third-party claim, Dalby sought indemnity or contribution from Nortask for negligence, breach of contract and in the alternative, under section 6 of the Law Reform Act 1995 (Qld). The Court dismissed Dalby’s claims in negligence and contract.
Given the admission of liability by Nortask, none of the parties led any significant evidence as to the basis of Nortask’s liability to Mr Speziali.
Regarding contribution, the Court started with the position that “equity is equality”, meaning that if the damage caused by the defendants was indistinguishable, then damages should be apportioned 50/50. However, the Court held that the damages were not indistinguishable here, as the dominant cause of Mr Speziali’s injuries was the fact that there was a gap between the bottom of the steel cage to the top ladder and the guardrails of the mid platform, which a person when slipping could fall between and onto the ground. The responsibility for the access system and its non-compliance lay with Dalby, and could not have been readily identified by Nortask. As such, the Court accepted Nortask’s submission that the proper apportionment between Nortask and Dalby was 25/75.
Mr Speziali was successful in establishing the negligence of Dalby. In summary, the Court held that Dalby were responsible for the identification and rectification of the non-compliant gap on the top of the access system. The existence of the gap made it reasonably foreseeable that a significant injury could occur if someone was to slip from the top ladder, as the gap between the steel cage and the mid platform prevented the mid platform from arresting the fall. As such, Dalby was found negligent and a determination of 75/25 on apportionment was made, further to a submission by Nortask.
The damages awarded to the Plaintiff were $899,254 as against Nortask and $1,203,193 against Dalby, inclusive of WorkCover refunds of approximately $370,000. As such, WorkCover’s refund is greater than the damages for which the employer has been found liable (meaning that WorkCover is entitled to a refund from the judgment sum).
It is not uncommon for the dollar value of WorkCover’s legal liability to be less than its statutory refund in multi-party claims. What is uncommon, however, is for WorkCover to admit liability in a multi-party claim like this.
On one view, such a strategy comes with a risk that an employer may not be found negligent and admitting liability may give the other defendant a windfall; on the other hand, an admission of liability be appropriate:
- where such an approach is consistent with model litigant guidelines;
- in certain multi-party claims where a finding of negligence on the part of the employer is probable e.g. falls from heights, heavy lifting, labour hire;
- where WorkCover has paid significant statutory benefits;
- to gain advantage in relation to legal costs;
- where the other defendant is likely to be found more culpable.
Regardless of WorkCover’s reasons for admitting liability in this case, it is a strategy which would no doubt be broadly welcomed by plaintiff law firms in the future.