Woods v Murray River Council [2022] NSWDC 120
- Injury sustained on 11 March 2014.
- Claim and Statement of Claim filed on 23 March 2020.
- Decision delivered 22 April 2022.
Background
The plaintiff, Mr Darren Victor Woods (Woods), sustained injuries on 11 March 2014 during the course of his employment with Murray River Council (the Defendant), who was the Council for the Murray Shire area.
Woods was employed by the Defendant in manual labouring roles – including operating plant and machinery – and was instructed to perform work at a worksite at Moama, New South Wales. The work consisted of the installation of PVC pipes in a trench running parallel to the road.
Woods and a co-worker “complained to the defendant that transporting the pipes in the manner in which they had been directed was physically demanding and difficult to undertake given the length and weight of the pipes and the terrain the workers needed to traverse while carrying the pipes” both on the day before and on the day of the accident. However, they were instructed to continue to carry the pipes to the trench by hand.
Woods and his co-worker followed the Defendant’s instructions and carried the pipes for the whole of the day on 10 March 2014. However, on the morning of 11 March 2014, when picking up a pipe, Woods sustained an injury.
Allegations
Woods alleged that the Defendant failed to provide a safe system and place of work, or to take reasonable care to avoid exposing Woods to a risk of harm which was foreseeable and not insignificant. Woods alleged, inter alia, that the Defendant:
a. Failed to provide mechanical aids or assistance to transport the pipes.
b. Failed to instruct Woods and his co-workers to use the mechanical aids or assistance to transport the pipes.
c. Failed to conduct risks assessments of the duties that Woods had to perform.
d. Failed to create a pipe stockpile closer to the installation points.
e. Failed to provide adequate supervision at the worksite.
Absence of Appropriate Equipment
Woods’ evidence was that the position of the pipes and the absence of a equipment was identified during a site meeting. Only an excavator had been delivered to the site, and no other plant (such as a forklift or backhoe) was on site at all.
The usual process for laying pipes was to have the pipes placed near to where the work was to be performed, and this had not been followed. The pipes were estimated to be 60-70kg, and are not designed to be carried.
Woods and his co-worker were allegedly instructed that they were required to carry the pipes, as a backhoe was not available.
The third person at the site, Mr Sanderson, claimed there was a backhoe at the site, as did two other employees of the Defendant, who attended the site after complaints had been raised.
Even on the evidence of the Defendant’s witness (Mr Sanderson), Gibson DCJ highlights that there were ‘clearly problems with the system of work on the day of the injury, which had resulted in complaints from [Woods]…’
Failure to Supervise
Gibson DCJ states that it was “Mr Sanderson’s job to ensure that the workmen were carrying out their work safely, and his failure to supervise them, even if [Gibson DCJ] accepted his evidence that there was a backhoe on the site, would be sufficient to amount to negligent conduct.
Safe System of Work
The question of whether the Defendant was negligent was determined with reference to the common law principles set out in Wyong Shire Council v Shirt (1980) 146 CLR 40. Identifying whether the negligence was the relevant cause of Woods’ injury is achieved by applying the “but for” test set out Strong v Woolworths Ltd[2012] HCA 5; 246 CLR 182.
Applying these principles to the facts demonstrates the Defendant’s creation of a risk by failure to adopt a safe system of work by providing the Defendant’s employees (i.e. Woods) with suitable plant and equipment to enable them to carry out their work safely. Informing Woods and his co-worker that the backhoe was not available, and that they should do the work by hand, is determined by Gibson DCJ as a clear failure to provide a safe system of work.
Gibson DCJ provides that:
“[Woods] found himself in a situation where you needed to complete the task allocated to him in the manner that dictated by his supervisor and by the only means available. Although Mr Todd submitted that the plaintiff could have refused to do the work, that is not a realistic approach to the nondelegable duty of care that an employer must have in the circumstances.”
Decision
Gibson DCJ stated that this was a clear case of total loss of earning capacity, and it would be “mere speculation” to reduce the sums set out in the schedule of damages, which he proposed to award in full.
There was found to be no basis for an assessment of contributory negligence.
Judgment for the plaintiff, (Woods), with liberty to the parties to bring in Short Minutes of Order reflecting the mathematically agreed judgment sum.
All other issues, including costs and interest, were reserved with liberty to the parties to apply.