After a 4 day trial, the plaintiff who sustained a shoulder injury when he walked into the raised bucket of a bobcat was successful against his employer, the occupier and controller of the bobcat, however; damages were reduced by 20% for contributory negligence and quantum was assessed at a very modest amount of $26,007 (gross), with no allowance for future loss of earning capacity.
Primary liability was assessed as follows:
- 10% against the first defendant employer;
- 30% against the second defendant occupier of the worksite; and
- 60% against the third defendant supplier and controller of the bobcat.
Liability was founded without a breach of statutory duty.
Given the apportionment against the employer the plaintiff will be required to make a refund to WorkCover Queensland.
His Honour Applegarth J. factored into account the plaintiff’s exaggeration and lack of credibility, together with the intervention of a back injury post incident.
The third defendant was successful in their claim for indemnity against the second defendant pursuant to a contractual term on the reverse side of a tax invoice, despite having been found by his Honour Applegarth J to be the most culpable.
Whilst his Honour found against the plaintiff in respect of credibility flowing from covert surveillance of the plaintiff playing touch football and rugby league, together with different versions of the incident being provided to doctors and under cross-examination, a determination on balance was still made in his favour:
 The plaintiff’s evidence was highly unsatisfactory concerning the sequence of events. For example, he said that he struck his shoulder “simultaneously” with the call from a fellow worker that the conduit had been found. On another version he walked several metres between this call and hitting his shoulder. More importantly, the path of travel on different versions is very different. The plaintiff gave no satisfactory explanation as to why the path that he originally marked was wrong. The steel mesh was marked on this original sketch and the plaintiff marked a path to the west of it. This was the sketch adopted in his statutory declaration. I conclude that it is a more reliable indication of his probable path than the path later marked in red. I find that the path marked in red was drawn by the plaintiff in order to enhance his prospects in this litigation on the basis that he was walking through a relatively narrow gap between the steel mesh and the bobcat.
 I find that the plaintiff walked into one of the teeth on the raised bucket of the bobcat, and did so after being called back to the site after another worker had found the required piece of conduit pipe. The plaintiff was probably looking at the ground at the time. The area in which he was walking sloped from the vicinity of the steel mesh to the level of B1. The drop was about two metres. The dirt slope and the possibility of loose objects being on the ground warranted the plaintiff looking at the ground in front of him. He was wearing a safety helmet at the time and this may have restricted his peripheral vision of the bobcat’s bucket as he focused on the ground in front of him. It is possible that he was still looking for another piece of conduit, despite being told to return. The general unreliability of the plaintiff’s evidence does not permit me to conclude that this is probable. The plaintiff’s evidence about this possibility was couched in terms of “maybe”, and was given in an unconvincing manner.
The basis was common law negligence:
 The first defendant’s submissions correctly identify the issue as whether the plaintiff has demonstrated by direct evidence or reasonable inference that Tessman unreasonably failed to take measures or adopt a means reasonably open to it in all the circumstances which would have protected the plaintiff without unduly impeding accomplishment of the required task. It correctly submits that the plaintiff must demonstrate that there was a risk of injury that was reasonably foreseeable, that the defendant could have taken steps to remove that risk and that the failure to take such steps was unreasonable. The first defendant correctly concedes that the risk was reasonably foreseeable. It emphasises that Tessman’s putative liability as employer does not rest simply upon its duty being a non-delegable one. To be liable it must have itself failed to take reasonable care. The law does not impose a duty to prevent potentially harmful conduct. It imposes an obligation to exercise reasonable care. The assessment of breach depends on the correct identification of the relevant risk of injury and must be assessed prospectively, not retrospectively. Such an assessment must be made in the manner described by Mason J (as his honour then was) in Wyong Shire Council v Shirt. Accordingly, the issue of whether Tessman exercised reasonable care in the circumstances must be determined from the perspective of Mr Heilbronn, avoiding hindsight bias.
 The plaintiff was not specifically directed to continue to work in the area in which he was injured. He was earlier told to “try to avoid” the bucket when he and others were collecting steel mesh from the stack near it, and was later asked to find a piece of conduit. He was not specifically directed to go near the bobcat in order to find a piece of conduit, but he was not again told to avoid that part of the site when looking for conduit. However, the earlier warning to try to avoid the bobcat was not withdrawn and continued to apply.
His Honour concluded that the warning was not enough and ultimately concluded:
 In circumstances in which Lynsha and De Luca had neglected to cause the source of the danger to be removed, Tessman had an obligation to ensure that its workers were not unreasonably subjected to it. Reasonable care in the circumstances required Mr Heilbronn to direct the Tessman employees to not carry out tasks in the vicinity of the bobcat, not simply to warn them to try to avoid it. If Tessman wanted its employees to continue to work in the area, either by collecting mesh from the stack, searching for conduit or undertaking other tasks, reasonable care in the circumstances obliged it to barricade the area surrounding the bobcat.
On the basis common law negligence was made out his Honour determined in respect of breach of statutory duty:
 My findings that each defendant was negligent makes it unnecessary to address their alleged breaches of statutory duty and the legal issue of whether such a breach gives rise to a cause of action.
As against the third defendant the assessment was straightforward:
 It was an easy matter for Mr Manning to move the bobcat or to lower its bucket once he had repaired it on the morning of 6 December 2005, provided he had the keys. He had the keys or easy access to them. A significant risk was posed to workers by leaving the bobcat with its bucket raised in the middle of a worksite.
 Given the risk of serious injury, the degree of probability of its occurrence and the minimal inconvenience that would have been occasioned to Mr Manning in moving the bobcat after it had been repaired, I conclude that Mr Manning breached his duty of care and his employer, the third defendant, is vicariously liable for his negligence.
 If Mr Manning had moved the bobcat once the hydraulic hose was fixed to its usual parking place, where its other buckets were stored, then the accident would not have occurred. Mr Manning’s negligence was a substantial cause of the plaintiff’s shoulder injury.
The second defendant site controller was less straightforward. His Honour at paragraph 33 applied the seminal High Court decision of Leighton Contractors Pty Ltd v Fox:
“ It may be accepted that (the principal contractor), as the occupier of the site, owed a duty to persons coming onto it to use reasonable care to avoid physical injury to them. However, this says nothing about whether (the principal contractor) owed a duty to (the plaintiff) to take reasonable care to prevent him suffering injury on the site as a result of the negligent conduct of (a sub-contractor). The relationship between principal and independent contractor is not one which, of itself, gives rise to a common law duty of care, much less to the special duty resting on employers to ensure that care is taken. …
 The obligation imposed on (the principal contractor) under the Regulation, while not founding an action for breach of statutory duty, is central to the Court of Appeal’s conclusion that a common law duty existed. While it is true that obligations under statutory or other enactments have relevance to determining the existence and scope of a duty, it is necessary to exercise caution in translating the obligations imposed on employers, principal contractors and others under the OHS Act and the Regulation into a duty of care at common law. This is because, as Gummow J explained in Roads & Traffic Authority (NSW) v Dederer, ‘whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden’.”
And at paragraph 34:
 The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe.
The basis for the finding was as follows:
 In circumstances in which Mr Furlanis was alerted to the danger and was in a position to address the risk posed to workers, I consider that it was unreasonable for him to not direct Mr Manning to move the bobcat or, if the bobcat could not be promptly moved, to not barricade it. The fact that he did not personally have the keys to the bobcat did not disable him from exercising control over the situation. The terms of the hire agreement between Lynsha and De Luca placed Mr Manning under the control of Lynsha, and therefore subject to Mr Furlanis’ directions.
 It was unreasonable for Mr Furlanis to fail to promptly direct Mr Manning to move the bobcat to a safe position once it had been repaired. Alternatively, he should have arranged for it to be barricaded whilst it remained in its parked position, with its bucket elevated. I am satisfied that Mr Furlanis was negligent.
 Had Mr Furlanis directed the bobcat to be moved or barricaded then the accident would not have occurred. De Luca is vicariously liable for Mr Furlanis’ negligence.
Apropos contributory negligence:
 Notwithstanding these considerations in the plaintiff’s favour, neither the task required of him at the time of the accident (returning to B1 and abandoning the search for conduit) nor regard to his own safety required him to have his vision fixed on the ground immediately in front of him. The exercise of reasonable care for his own safety required him to glance up from the ground regularly to avoid potential hazards. His failure to do so cannot be described as mere inadvertence, inattention or mismanagement. It justifies a reduction of his damages by 20 per cent on account of his contributory negligence.
The terms of the contractual indemnity understandably turned on the contract. His Honour applied the strict rules of construction:
 Such an indemnity clause falls to be construed strictly, and any doubt as to the construction should be resolved in favour of the indemnifier. The doubt may arise not only from the uncertain meaning of a particular expression but from its apparent width of possible application.
 The authorities that require ambiguity to be resolved in favour of the indemnifier do not require that ambiguity be detected where the natural and ordinary meaning of the language, taken in its contractual context, requires no such conclusion. Absent statutory authority, a court has no mandate to rewrite a provision to avoid what it retrospectively perceives as commercial unfairness or lack of balance.
 The clause should be construed in its contractual context which allocates risks of different kinds between the parties, and, relevantly in this case, provides that the operator shall be under the control of the Hirer. Effect should be given to the ordinary meaning of the language used (absent use of technical expressions or terms of art) so as to provide certainty as to where responsibility may lie, against which insurance may be obtained. The fact that the contract requires a party to take out insurance against the indemnified liability may be taken into account in concluding that the indemnity applies to that liability, whether or not insurance is in fact taken out. The absence of a provision for insurance against the liability may also be taken into account. However, the fact that the indemnifier is not required by the contract to take out insurance, and chooses not to take out insurance should not affect the construction of an indemnity that unambiguously allocates responsibility for the liability against the indemnifier.
 The outcomes of other cases involving different contractual arrangements and different clauses do not dictate the outcome of this case. However, the principles of construction established in those cases should be followed.
His Honour concluded:
 I conclude that the plaintiff’s personal injury was in connection with or arising out of the use of the bobcat. The bobcat was in use at the relevant time. The breakdown had been repaired. The operator, who was under De Luca’s control, repaired it and left it in its location, rather than move it. Although cl 7 should be strictly construed and any ambiguity resolved in favour of De Luca, the word “use” is not ambiguous and in its contractual context could not be construed to mean that the plant was being driven or operated. At the time of the accident the plant was in use, being in an operational condition and having been parked with a view to being deployed on tasks at the direction of De Luca. The deployment of the plant at that location involved its use for the purpose of the hire.
 There was a sufficient nexus between the plaintiff’s personal injury and the use of the plant to conclude that his personal injury was in connection with or arose out of the use of the plant.
 Lynsha is entitled to an indemnity against the plaintiff’s claim, and in respect of any costs that it may be adjudged to pay to the plaintiff and its own costs in defending his claim. I will hear the second and third defendants concerning the form of judgment to be given in favour of Lynsha against De Luca.
The nature and extent of the plaintiff’s injury was the subject of much attention. The plaintiff suffered poorly in the exchange, which is reflected in the damages.
The scene is set at paragraphs 82 & 83 from which the plaintiff never recovered:
 The plaintiff relies on a number of medico-legal reports. However, I am not prepared to accept, without qualification, the opinions expressed in them because they are based at least partly, if not substantially, on the history given by the plaintiff who I find to be an unreliable historian who admitted to providing misleading information to some of the doctors who were asked to assess him. The medico-legal reports and opinions of orthopaedic surgeons and neurosurgeons who examined the plaintiff were also partly based upon the plaintiff’s reporting of the extent of his pain upon examination, and I find that the plaintiff was prone to exaggerate the extent of his pain and the degree to which his shoulder injury restricted his movement and activities.
 A remarkable feature of the case is the abundance of medico-legal reports obtained to advance the plaintiff’s legal claim compared to the relative absence of evidence of medical treatment for his allegedly debilitating conditions.
His Honour found in respect of the left shoulder:
 Having regard to the medical evidence concerning the plaintiff’s left shoulder injury, and the need to discount medical opinions that were based upon an unreliable or inaccurate history given by the plaintiff, I conclude that the plaintiff suffered a relatively minor soft tissue injury to his left shoulder. The injury was most painful in the weeks and first few months after it was sustained on 5 December 2006. It prevented the plaintiff from returning to work until 11 January 2006.
This finding premised the modest awards that followed, coupled with the intervention of a back injury:
 The injury that occurred on 26 June 2009 to the plaintiff’s back occurred when he was attempting to lift a heavy machine with another worker and lower it to a builder’s labourer. According to the plaintiff, the builder’s labourer pulled the machine down, his fellow worker, John Miller, lost his grip on it, the plaintiff took all the weight and, as a result, twisted his back. The plaintiff’s evidence was that his earlier shoulder injury did not contribute to the accident that occurred on 26 June 2009. I find that the back injury which the plaintiff sustained on 26 June 2009, and not the shoulder injury that he sustained on 6 December 2005 and its aftermath, have prevented him from working since 26 June 2009. I find that if he had not suffered the back injury that occurred on 26 June 2009 he probably would have been capable of working as a concreter or in other employment as a labourer as he had prior to 26 June 2009. I find that the shoulder injury that he sustained on 6 December 2005 had resolved itself by 26 June 2009. It is likely that on occasions prior to 26 June 2009 heavy work may have caused the plaintiff to have a dull pain in his left shoulder, but this pain did not prevent him from working as a concreter after January 2008 and would not have prevented him from doing so had he not sustained a back injury on 26 June 2009.
As an indicator of just how much his Honour considered the shoulder injury to minor, the psychiatric injury was discounted as well:
 I conclude that the plaintiff has not proven depression to the extent that he reported to his doctor in April 2007 was caused by the physical injury to his shoulder.
Damages were assessed as follows:
- Pain, suffering and loss of amenities $20,000
- Interest thereon $1,900
- Past economic loss $2,300
- Loss of superannuation contribution $207
- Fox v Wood – to be addressed by the parties in supplementary submissions
- Special damages and interest on out of pocket expenses $1,600
With respect to indemnity clauses compare the decisions of:
Westina Corporation Pty Ltd v. BGC Contracting Pty Ltd  WASCA 213;
Erect Safe Scaffolding (Australia) Pty Limited v. Sutton  72 NSWLR 1; and
Ellington v. Heinrich Constructions Pty Ltd & Ors (2004) QCA 475.
The interpretation by his Honour shows that if the clause is unambiguous in the context of the contract it will be enforced. The decision is at odds with the above line of authorities. As to how the courts will move forward is yet to be seen. However, the decision seem to be in more in keeping with the sentiment of Erect Safe Scaffolding.
Brisbane Barrister – David Cormack