The ‘Guarded’ approach: ensuring safer conditions on construction sites

Author: Jevon Saba
Judgment date: 11 October 2019
Citation: Kabic v AAI Limited t/as GIO [2019] NSWCA 247
Jurisdiction: NSW Court of Appeal

Principles

• An employee or worker is not contributorily negligent for simply following the orders of an employer, regardless of whether those orders are (in some circumstances) unreasonable and would expose the worker to a seemingly obvious risk of injury.
  
  
• As a matter of caution, defendant insurers must be able to demonstrate that they made sufficient enquiries to ensure a relevant witness (lay or expert) is available for hearing, failing which an inference can be drawn against them under principles in Jones v Dunkel.

Background

The NSW Court of Appeal delivered judgment on 11 October 2019 in Kabic v AAI Limited t/as GIO [2019] NSWCA 247 allowing an appeal of a principal decision of the NSW District Court from 22 September 2017.

Mr Kabic was employed through a labour-hire company, Caringbah Formwork Pty Ltd (Caringbah) as a formwork labourer at a construction site at a property in Redfern, NSW where building works were being carried out principally by Deicorp Pty Ltd (Deicorp), which had subcontracted formwork services to Calcano Pty Ltd (Calcano).

On 26 May 2011, Mr Kabic alleged that he was working on a raised platform, about 2 metres above the ground without any protective barriers. He was standing on “treated plywood” which was “naturally slippery” and as it had been raining on the day of the incident, it was “even more slippery” than usual. Under these conditions, Mr Kabic alleged that his feet slipped out from under him and he fell from the platform to the ground.

He sued all three entities in negligence.

Decision at first instance

The primary judge found that Calcono breached its duty of care on the strength of the Mr Kabic’s co-worker, Mr Vujatovic’s evidence, which “substantially corroborated” the plaintiff’s version of events.

Notably, the primary judge drew a Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 inference from Calcono’s failure to call the site foreman, who could have been called to give evidence as to, inter alia, the presence of rain or water on the catch deck, the presence of cross-bracing, and where Mr Kabic was standing.

Controversially, the primary judge assessed Mr Kabic’s contributory negligence at 33.33% for “not drawing the attention of his superiors (presumably the foreman, Mr Calautti) to the unsafe conditions in which he had been directed to work”.

Finally, the primary judge assessed Mr Kabic’s economic loss on the following basis:

1. he had a residual earning capacity of at least $600 per week in performing light duties;
   
   
2. by the time he reached the age of 50 he would not, on the balance of probabilities, be able to work as a formwork labourer; and
   
   
3. the negligence did not harm the appellant’s future earning capacity after the age of 50 because the appellant would have switched to light duties at this age even if the injury did not occur and he was capable of performing such duties.

Decision on appeal

Mr Kabic appealed against the finding of contributory negligence and assessment of damages, while AAI Limited t/as GIO (as substitute for the now-defunct Calcono) cross-appealed against the finding of negligence.

The appeal centred on the following issues:

1. whether the primary judge erred in his findings of fact, notably, that Mr Kabic fell from the safety catch deck (without a guard rail) when he slipped on wet plywood;
   
   
2. whether the primary judge erred in making a finding of contributory negligence against Mr Kabic; and
   
   
3. whether the primary judge erred in his assessment of damages, specifically, in regards to past and future economic loss.

On appeal, issues 1 was dismissed, while issues 2 and 3 were upheld in part.

Issue 1

The Court of Appeal held that it was open to the primary judge to accept the evidence of Mr Kabic and Mr Vujatovic as to where Mr Kabic had been standing before he fell, as opposed to that of Calcono’s witness, Mr Reeves, who was not present until after the incident and “therefore would not know where Mr Kabic was positioned, and whether Mr Kabic was using the single bearer in the way contended by [Calcono]”.

Calcano further submitted that the primary judge should not have accepted the evidence of Mr Ian Burn, the consulting engineer, that the formply (on which Mr Kabic allegedly stood) is “slippery under dry conditions and more slippery under wet conditions” in the absence of an explanation from this expert as to “whether, as a matter of physics, the formply had a particular coefficient of dynamic friction when dry and whether that coefficient was different when wet, and if so, what that difference was”.

On the contrary, their Honours considered “exactness was not required. Mr Burn had the expertise based on experience of the hazardous nature of treated formply when wet to express the opinions he did, and there was no need for greater precision”. This was in part because the slipperiness of the formply surface was not the only reason for Mr Kabic’s sustaining his injury and had he simply slipped and fallen onto the formply surface, then the degree of slipperiness of formply when wet compared to when dry would have “loomed large”.

Lastly, on the issue of the guardrails, the Court of Appeal concluded that it was open to the primary judge to accept the plaintiff’s evidence that they were missing, “as their absence is consistent with the fact that the phase of construction on level 2 (from which height the plaintiff fell) was the deconstruction of (i.e. stripping and removing) the temporary structures on level 2”.

By the same token, the Court of Appeal refused to disturb the primary judge’s Jones v Dunkel inference from Calcono’s failure to call the site foreman, who could have given evidence as to, inter alia, the presence or rain or water on the catch deck, the presence of cross-bracing, and where the appellant was standing.

Issue 2

The Court of Appeal simply concluded that the primary judge had erred, because he “reversed the onus of proof by requiring Mr Kabic to prove that the site foreman could see that the safety catch deck was wet. The foreman must have been aware that the area in which the appellant was directed to work was wet”. It followed that Mr Kabic could not be contributorily negligent for following orders.

Issue 3

The Court of Appeal considered the deduction of $600 per week reflecting Mr Kabic’s residual earning capacity must be excised because the evidence, although establishing that the appellant was physically capable of performing the jobs used to calculate this figure, did not establish that these jobs were available to the appellant or that he could secure employment in them. It followed that the $600 per week deduction was also excised in assessment of future economic loss.

However, the Court of Appeal refused to disturb the primary judge’s assessment of damages for loss of future earning capacity as a formwork labourer up to the age of 50, because the Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 approach for which the plaintiff contended at first instance did not accord with the medical evidence and applied to past hypothetical events, not future events.

Why this case is important

The case underscores the importance for defendant insurers to pursue reasonable enquiries to ensure that all relevant witnesses are available for hearing, failing which they might risk an adverse inference being drawn against them for not calling said witness.

On a separate note, the case also highlights the importance of the transparency and caution with which head contractors must give instructions to those under their supervision on work sites. Perhaps more ostensibly, head contractors at sites on which above-ground building works are being performed should ensure that simple preventative measures such as guardrails are in place.