In the recent decision of Tsoromokos v Australian Native Landscapes Pty Ltd, the New South Wales Supreme Court reduced the award of damages made to a contractor by 40% on account of contributory negligence.
On 17 September 2007, the plaintiff (an independent contractor) was carrying out repairs to the fuel tank of a Volvo loader, owned and operated by the defendant, Australian Native Landscapes Pty Ltd (ANL). When attempting to remove the bash plate (which weighed roughly 200 kilograms) to gain access to the fuel tank, the bash plate fell onto the plaintiff’s right arm, causing serious injuries.
The plaintiff alleged ANL directed him on numerous occasions to adopt unsafe work practices and to return machinery to use without proper maintenance. He stated that there was a high level of “interference” in the manner in which he performed his work and indicated he was under considerable time pressure to complete work within an unrealistic time frame and with inadequate tools and equipment.
In April 2007, the plaintiff had undertaken repairs on the fuel tank of the same loader. He alleged that he was directed by ANL to reuse unsuitable bolts to fix the bash plate into place on the right and to tack weld the left side of the bash plate into place in the absence of suitable bolts. An ANL representative stated the weld would be rectified within a week. However, this did not occur.
The loader was returned for repair in September 2007. The plaintiff alleged that the loader had come back from the fields covered in fertiliser and mulch, so much so that the area of the bash plate was covered and he could not see the bolts in position. The plaintiff alleged he cleared the muck from the right side of the bash plate with a screwdriver to expose the bolts for removal, but not the left.
Whilst attempting to “crack” the bolts from the right side, the bash plate gave way at the tack weld and his arm was crushed under the plate. The plaintiff contended that the poor condition of the bolts was causally related to the incident, in that they were of insufficient strength and quality to hold the bash plate in place once the weld failed. On the basis that ANL instructed the plaintiff to use unsuitable bolts and tack weld the other side of the loader, the plaintiff maintained that the defendant was wholly responsible for the accident.
The Supreme Court found that the plaintiff was a difficult and combative witness, prone to exaggeration and was belligerent and evasive in his demeanour. In light these findings, much of the evidence provided by ANL regarding the equipment, safety requirements and time pressures were accepted.
The allegation that he was not provided the necessary equipment was not accepted. However, the direction to tack weld and later repair the bash plate was the responsibility of ANL. It was also found that immediately following the incident, the plaintiff accepted a measure of responsibility for the fall of the bash plate to two co-workers, indicating he had “f***ed up”.
The Court held that ANL were liable for the incident on the basis of its responsibility to rectify the known defect in the bash plate. ANL owed the plaintiff a duty of care in this respect, which was breached by the defendant’s failure to rectify the weld.
The plaintiff’s contributory negligence was assessed at 40%. The trial judge found that the plaintiff’s failure to carry out a proper visual inspection of both sides of the loader before commencing work was objectively unreasonable. The failure to clean down the machine or at least to scrape away the mulch with the screwdriver on both sides before starting work went beyond a mere “inadvertence”. The plaintiff was aware of the requirement to undertake a visual inspection of the loader before commencing work and, if the loader had been cleaned, the plaintiff would have identified the tack welding to the left of the bash plate.
Take away points
- A plaintiff’s credit, demeanour and presentation as a witness can be influential in the Courts acceptance or otherwise of the plaintiff’s version of events, especially in circumstances where the employer’s evidence or version differs
- In circumstances where there is a significant departure from the standard work procedure, Courts are prepared to make a finding of contributory negligence
- Employers need to establish that adequate prior training and instruction was provided to the worker regarding the task being undertaken in order for the departure from that procedure to amount to contributory negligence