Australia: Building site accident – Was plaintiff an employee or deemed worker? – Causation
Curwoods Case Note

Judgment date: 12 April 2012

Minogue v Rudd [2012] NSWSC

Supreme Court¹

In Brief

• To prove causation a plaintiff needs to establish that the alleged cause was more probable than any other.
• Breaches of the Occupational Health and Safety Act 2000 (NSW) (the Act) and Occupational Health and Safety Regulation (2001) (the Regulations) do not give rise to a private cause of action.
• Where an employer is able to control and co-ordinate the method of work, the duty owed to the plaintiff, whether he was an employee or an independent contractor, is substantially the same. Namely, a duty to take reasonable care to avoid exposing him to the risk of injury.
• Res ipsa loquitur will not apply in circumstances where "what occurred and why" are matters of speculation.

Background

Mr Minogue (plaintiff) was an Irish national and qualified carpenter who suffered a significant brain Injury when he fell from the ground floor to the basement in the kitchen area at residential premises under construction (premises).

The first defendant, David Jonathan Rudd t/as Rudd & Co Constructions (Rudd), contracted with the property owner (Mrs Rigby) to carry out renovations to the premises. Mr Tilden (Tilden), the second defendant, was also retained as a draftsman, clerk of works and was nominated as a supervisor in the agreement between Mrs Rigby and Rudd.

Rudd commenced work at the premises on 4 August 2003. The kitchen flooring was not completed since one of the joists did not have a 'noggin' (a beam that provides lateral stability to the joists) and was not properly fixed in place. Rudd's evidence was that the completion of the floor awaited a final decision as to the position of the stairs and location of an air-conditioning unit. The floor was likely left in this state since at least 5 January 2004.

On about 6 February 2004, Rudd went on a skiing holiday in Canada. In his absence, Tilden arranged for DMW Carpentry Services Pty Limited (DMW), the third defendant, to construct Page 2 of 4 an exterior chimney to the premises. This work involved constructing the chimney frame to the outside of the premises, and then fixing blueboards to the structure. The plaintiff was an employee/deemed worker of DMW and was supervised by Mr McWilliams (McWilliams), the Director of DMW.

Adamson J accepted Rudd's evidence that he arranged for hazard tape to be put up to bar the entrance to the kitchen area prior to him leaving for holiday, and that it was in position when McWilliams left the premises on the morning of the plaintiff's accident in view of the corroborative evidence of an electrician, Mr Hardwick, and Mrs Rigby who made a file note of their attendance on 12 February 2004.

On Monday, 9 February 2004, Tilden gave McWilliams drawings that indicated the dimensions of the chimney and where it was to be constructed. Tilden showed him around the outside of the site and took him into the entrance on the southern side of the house to show him the stairs that led from the ground floor to the first floor, which could be used to carry the sheets of blue board up to the first floor in order to construct the chimney at that level.

It was accepted by the parties that there was no reason for the plaintiff to enter the kitchen area to complete his work. Adamson J accepted that McWilliams left the site at approximately 9.00 am on 12 February 2004 to drop some materials to North Sydney, leaving the plaintiff to work without supervision.

A landscaper, Mr Bielik, was working at the site that morning and heard a scream and a crash of timber. He attended the plaintiff whom he discovered lying on the floor of the basement with considerable injuries. McWilliams attended the scene shortly afterwards.

It was accepted by the Court that the plaintiff fell from the ground floor to the basement of the premises. There were no witnesses to the fall and the plaintiff had no recollection of how it happened or why he was in the kitchen area.

The plaintiff sued Rudd, Tilden and DMW.

Causation

The plaintiff's counsel alleged that, whilst the plaintiff was walking across the kitchen floor joists, the incomplete and unstable joist moved under his foot causing him to loose his balance and fall down to the cement floor of the basement.

Adamson J accepted the consensus of the experts that neither the probable cause, the probable mechanics of the fall, nor where the plaintiff was probably standing when he fell could be determined.

In these circumstances, her Honour did not consider the hypothesis that the plaintiff lost his balance on a loose joist to be more probable than other possibilities (such as slipping, tripping or fainting etc) and therefore concluded that the plaintiff had failed to prove his case as it was pleaded.

In this respect her Honour followed the decision of Lithgow City Council v Jackson ² , finding:

Statutory Breaches

Adamson J, noting that the matter was conducted on a broader basis than the above, examined the allegations of statutory breaches by the defendants.

The plaintiff alleged various breaches of the Act and the Regulations and sought to argue that these breaches gave rise to a private cause of action. In particular, the plaintiff relied on breaches of a number of the Regulations which, it was argued, obliged Rudd to eliminate the risk of the plaintiff falling by, amongst other things, putting down floorboards over the exposed kitchen joists.

French CJ, Gummow, Hayne, Heydon and Bell JJ had already determined in Leighton Contractors Pty Limited v Fox ³ (Leighton) that "the terms of [the Act] prevent the duties imposed by it on employers and others giving rise to correlative private rights".

Accordingly, the plaintiff's counsel sought to distinguish this matter from Leighton on the grounds that neither Leighton nor the Act made reference to whether a breach of the Regulations would give rise to a private cause of action (see in particular s 32 of the Act).

Ultimately, Adamson J, following the decision in Leighton, concluded that although breaches of the Regulations were relevant to the question of negligence, any breach would not necessarily amount to negligence, since the duty and standard of care was moderated by the standard of reasonableness (that is, "they do not impose a more stringent or onerous burden" ⁴ ).

Employment Issue

During the course of the proceedings, the plaintiff put, as an alternative, that he was an employee of DMW. Rudd put this as his primary submission in his cross-claim against DMW.

The duty and standard of care owed by DMW to the plaintiff depended in part on whether the plaintiff was an employee of DMW or a subcontractor.

Adamson J weighed up the following factors in determining the plaintiff's employment status:

1. the plaintiff was paid at an hourly rate of about $28.50 and his wages were paid by DMW into the plaintiff's personal bank account without tax having been deducted;
2. the plaintiff registered a business name, "A1 Carpentry", and obtained an ABN when he arrived in Australia. Had he not already done so, DMW would have required him to do so;
3. the plaintiff worked exclusively for DMW from the time of his arrival in Australia;
4. the work the plaintiff performed allowed DMW to fulfil his contractual responsibilities to third parties;
5. the plaintiff did not obtain any work on his own account; it was DMW that obtained the jobs;
6. the plaintiff worked a 40-hour week, and was not paid for any extra time worked;
7. the plaintiff supplied his own minor tools. Other tools, such as power tools, including angle grinders, drills and skill saws, sawhorses and trestles, were supplied by DMW;
8. DMW controlled the work that would be done by the plaintiff, when it would be done and where it would be done. In effect, DMW supervised the plaintiff; and
9. the plaintiff wore DMW's uniform.

Adamson J noted the extent to which McWilliams controlled the plaintiff is relevant but not determinative, since the whole of the relationship must be considered: Hollis v Vabu Pty Limited ⁵ . Her Honour found that McWilliams controlled the work that would be done by the plaintiff, when it would be done, where it would be done and also supervised the plaintiff.

Having regard to the above, her Honour found that the plaintiff was employed by DMW. However, her Honour noted that, even if she was incorrect and the plaintiff was an independent contractor, the duty may well be substantially the same as described in Stevens v Brodribb Sawmilling Company Pty Limited ⁶ , excerpted as follows:

Adamson J concluded there was a need for McWilliams to give directions to the plaintiff and co-ordinate his work with the plaintiff's own, and that McWilliams had the ability not only to prescribe a safe system, but also to direct the plaintiff to comply with it. Her Honour considered that irrespective of whether the plaintiff was an employee or independent contractor the duty owed to him by McWilliams was no different to that which would have been owed had he been an employee, namely a duty to take reasonable care to avoid exposing him to the risk of injury: Rockdale Beef Pty Limited v Carey ⁷.

Implications

This matter highlights the importance of adducing evidence to establish the relied upon version of events above other possibilities. Ultimately, in this matter, the plaintiff was unable to convince the judge that his version of events was more probable than any other that may have occurred and it was for this reason that he failed against all three defendants.

In respect of DMW, this decision confirms that, in circumstances where an employer controls the manner of the work to be performed by employees and sub-contractors, the employer will be held to the same standard of care to ensure a safe system of work is formulated and adhered to irrespective of whether the injured party is an employee or a subcontractor.

In circumstances where a plaintiff is able to establish a breach of duty of care, the threshold question is whether the breach was causative of the plaintiff's injuries.

This matter also confirms the High Court's decision in Leighton that breaches of the Act may be indicative of negligence, but do not confer a private cause of action based on breach of statutory duty. In addition, her Honour confirmed earlier NSW Court of Appeal decisions that this principle applies equally to breaches of the Regulations (see for example, Elphick v Westfield Shopping Centre Management Company Pty Ltd ⁸).

Footnotes

¹ Adamson J
² [2011] HCA 36
³ [2009] HCA 35
⁴ as per Gummow J in Roads and Traffic Authority (NSW) v Dederer [2007] 234 CLR 330 at 345
⁵ [2001] HCA 44; 207 CLR 21
⁶ [1986] HCA 1 at 31
⁷ [2003] NSWCA 132 at 94
⁸ [2011] NSWCA 356M

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.