Australia: Shoring in the Trenches of the Civil Liability Act
Curwoods Case Note

McDonald v Shoalhaven City Council [2013] NSWCA 81

In Brief

• Section 3B of the Civil Liability Act 2002 (CLA) will be strictly interpreted in determining whether a claim falls for assessment under the CLA, the Workers Compensation Act 1987 (WCA) or any other legislation, even if the duty of care arises from a derivative duty imposed by a differing legislative regime or pursuant to a cause of action which is excluded by s 3B.
• A court must properly consider all evidence put before it when making a determination as to what evidence is to be accepted or rejected.
• The statutory test requiring that the risk of harm to a person be "not insignificant" is more demanding or onerous, albeit only slightly, than the common law test that a risk of harm be "not far-fetched or fanciful".

Background

The plaintiff, Christopher McDonald, was injured whilst acting in the capacity of a "volunteer" who assisted Mr Mark Russell who was, at the relevant time, engaged in his employment with the Shoalhaven City Council (the Council).

Mr Russell had been standing in a trench which had been dug by various employees of the Council. There was no shoring put in place in the trench despite some of the trench walls being "wet", "waterlogged" or "seeping" with water. During the course of the day of the plaintiff's accident, 4 employees of the Council, all experienced at working in trenches, attended the site of the trench and none of them determined that the trench needed any shoring. The walls of the trench collapsed resulting in Mr Russell becoming pinned to the side of the trench by the earth which had fallen on him. During the course of assisting Mr Russell, the plaintiff was injured.

Each of the 4 employees who were present during the day gave evidence at the Hearing about what they saw in and around the trench on the relevant day and under what circumstances shoring would have been required. The plaintiff also gave evidence describing how the trench collapsed.

Section 5B of the CLA provides as follows:

1. "A person is not negligent in failing to take precautions against a risk of harm unless:
2. 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
   2. the risk was not insignificant, and
   3. in the circumstances, a reasonable person in the person's position would have taken those precautions. ..."

District Court Decision

The plaintiff brought proceedings in the District Court of New South Wales, alleging the Council was negligent.

The primary judge, Cogswell DCJ, categorised the plaintiff as a volunteer and found the plaintiff's claim should be determined pursuant to the CLA.

The primary judge noted while s 3B(1)(f) of that Act precludes claims which are governed by the Workers Compensation Act 1987 (WCA) and its associated legislation the Workplace Injury Management Act 1988 (WIMA), she found the section did not apply as the plaintiff was not a "worker" of the Council.

Once the primary judge found that the CLA governed the plaintiff's claim, he then considered how to formulate the duty of care owed to the plaintiff by the Council. He accepted that the Council owed the plaintiff a duty of care pursuant to the principles enunciated in Chapman v Hearse² . In doing so, he formulated the duty of care in the following terms:

The primary judge found that whilst the Council owed the plaintiff a duty of care, it had not breached that duty. In making this determination, the primary judge found that the risk of the trench collapsing "was significant and that the burden of taking precautions was not great. ... But what I am not satisfied about is that the probability that the harm would occur if the shorting (sic) was not put [in] place, was significant. I would regard the probability as slight. ..."

In the circumstances, the primary judge found in favour of the Council.

Court of Appeal

The plaintiff appealed the findings of the primary judge. There were 4 issues which arose for determination in the appeal:

1. Whether the plaintiff's claim was governed by the CLA or the WCA;
2. Whether the duty owed to the plaintiff was akin to the non-delegable duty owed by an employer to an employee;
3. Whether the primary judge had properly considered all evidence relating to the collapse of the trench; and
4. Whether the primary judge erred in finding that the term "not insignificant" in s 5B(1)(b) of the CLA has the same meaning as the word "significant".

In the Court of Appeal, Beazley P delivered the unanimous judgment.

Firstly, Beazley P dealt with whether the plaintiff's claim was governed by the CLA or the WCA. She noted that there was no relationship of worker and employer between the plaintiff and the Council. It was the plaintiff's contention that the duty of care owed to him by the Council arose from the derivative duty of care the Council owed to its employees. The plaintiff argued that the Council's primary duty of care was the non-delegable duty of care it owed to its employee, Mr Russell, and that that claim would be determined pursuant to the WCA. In those circumstances, he argued that it was incongruous that his claim would be determined pursuant to the CLA. The plaintiff argued that s 3B of the CLA should be construed such that there was no inconsistency.

Beazley P found that s 3B(1)(f) should be given a strict interpretation despite any "anomalies" consequent to such an interpretation. She noted that the court had previously acknowledged that such anomalies could occur³ . She cited reliance on the comments of Ipp JA in Ball⁴ , where he noted that the application of s 3B(1)(f) "can produce anomalies". He had stated that in "some cases it is difficult to discern under which particular statute the case falls, and difficult and somewhat illogical distinctions have to be drawn." Therefore, Beazley P found that the CLA was the correct legislative regime to be applied in the plaintiff's claim.

In respect of formulating the duty of care owed by the Council to the plaintiff, Beazley P concurred with the primary judge's formulation of the duty. She also agreed that the correct formulation was that enunciated in Chapman v Hearse⁵.

A central aspect of the plaintiff's appeal was that the primary judge failed to consider the plaintiff's evidence. The plaintiff's evidence in respect of how the trench collapsed was not challenged in cross-examination. Likewise, the evidence of Council's 4 employees about why no shoring of the trench had occurred and the appearance in and around the trench on the day of the accident was also unchallenged during cross-examination of those witnesses. Each of Council's witnesses gave evidence about when shoring was required, what work was being performed on the site on the day of the plaintiff's accident, and the appearance in and around the trench on the day of the plaintiff's accident. The primary judge failed to take into account the plaintiff's evidence about what he saw as the trench collapsed pinning Mr Russell in the trench.

Beazley P held that the primary judge should have expressly considered the plaintiff's evidence, stated whether he accepted the plaintiff's evidence, and then considered the evidence of the 4 employees of the Council. In failing to do so, the primary judge had erred in weighing all of the available evidence before him.

Finally, although the appeal did not turn on this issue, given Beazley P's findings that the trial judge had erred in properly weighing all of the evidence, she considered whether the primary judge had erred in incorrectly applying the test stipulated in s 5B(1)(b) of the CLA. Beazley P acknowledged that the section had "some linguistic complexity in the use of a triple negative" and that the test was difficult, however, she noted that the term "not insignificant" does not mean "significant". In doing so, she cited reliance on the decision of Shaw v Thomas⁶ where it was noted that the "not insignificant" test was more demanding, but only slightly more so, than the common law test that a risk be "not far-fetched or fanciful".

The court allowed the plaintiff's appeal, set aside the verdict and judgment in favour of the Council in the lower court, and remitted the matter back to the District Court for rehearing.

Implications

This case demonstrates the importance of correctly construing and interpreting what legislation governs a particular cause of action.

Once again, the court has been asked to consider whether the formulation of the duty of care owed to the plaintiff has been expressed properly. Determining the scope and nature of the duty of care owed by a defendant at the outset of a claim is of vital importance.

This case also reiterates that a court must weigh all the evidence before it when reaching its determination and the failure to do so will provide a party with an avenue of appeal.

Finally, this case acts as a reminder that the more demanding test that a risk be "not insignificant" is to be applied over the common law test, known colloquially as the Shirt calculus, in accordance with s 5B of the CLA.

Footnotes

¹ Beazley P, Ward JA and Simpson J
² [1961] HCA 46
³ State of New South Wales v Ball [2007] NSWCA 71
⁴ Ibid
⁵ see 2 above
⁶ [2010] NSWCA 169

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