Autagavaia v King Construction Ltd [2008] WSSC 82 (18 September 2008)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

BETWEEN:

MOSES AUTAGAVAIA,
of Vaoala Apia
Plaintiff

AND:

KING CONSTRUCTION LIMITED
a duly incorporated company having its registered office at Vaitele, Apia
Defendant

Counsels: Ms M Tuatagaloa for the plaintiff
Mr RT Faaiuaso for the defendant

Hearing: 09, 25 April, 01 May, 06 & 11 June 2008
Judgment: 18 September 2008

JUDGMENT OF NELSON J.

Background:

At all material times the plaintiff was employed by the defendant construction company as an assistant welder. He had been so employed for about 4-6 months when the accident that is the subject of these proceedings occurred. The accident occurred at his place of work and has left the plaintiff a paraplegic permanently wheelchair bound.

The plaintiff brings these proceedings against his employer alleging the company was negligent in:

(i) Failing to take any adequate or effective precautions for the safety of the plaintiff when he was instructed to carry out the relevant work;

(ii) Exposing the plaintiff to a risk of injury which could have been avoided by reasonable care;

(iii) Failing to warn the plaintiff of the dangers to which he was exposed when instructed to carry out the relevant work;

(iv) Failing to exercise such degree of care and control over the pipe as was warranted having regard to all the circumstances;

(v) Failing to provide a safe system of work.

There is no dispute the plaintiff suffered spinal and pelvic injuries resulting in paralysis of his lower limbs and that his condition is permanent and 100% for paraplegia. There is also no dispute he was injured at his workplace being the companys yard at Vaitele. What is in issue is the allegation of negligence on the part of the defendant.

By consent the courts ruling is requested as to liability only. It is therefore unnecessary to refer to the evidence as to quantum or as to damages.

The facts:

It is common ground the accident occurred at the defendants place of business at Vaitele on 23 February 2006. That morning the defendant was engaged in fabricating concrete culverts for a bridge project. The culverts were formed by pouring concrete in between a round inner steel casing and a round outer steel casing. The end result was a concrete pipe 1.5 metres in diameter and 1.2 metres in length. The plaintiff gave different dimensions for the pipe but I am satisfied the above are the correct measurements as testified to by Mr Montini Ott the manager and major shareholder of the defendant and the other main player in this unfortunate incident.

The pipes were being fabricated near the southern boundary of the defendants property. The pipe in question was the first of 50 required for the defendants contract. When the fabrication was complete there was no difficulty experienced in removing the outer steel casing. But there was a problem encountered removing the inner steel casing. After seeking advice from the casing manufacturer it was determined by Mr Ott that the inner casing had to be cut using welding equipment. As the equipment was in a workshop located near the northern boundary of the property the pipe was transported to the front of the workshop. This was done by attaching straps to one end of the pipe and using an EX200 excavator to carry it to the workshop. The manager of the defendant company operated the excavator and although the plaintiff suggested that this was the first time he had driven an excavator, I am satisfied from the evidence Mr Ott is an experienced operator of heavy machinery including excavators.

The pipe was set down in an upright position in the front of the workshop as instructed by Naite the defendants senior welder. This was because the excavator boom carrying the pipe was too high and would not clear the workshop door. After the pipe was so placed the defendant manager instructed the plaintiff to obtain an empty tyre from the workshop and lay it behind the pipe so that the pipe could be rolled on to its side on top of the tyre without being damaged. This would enable the welders to enter the pipe and cut away the inner steel casing. The plaintiff accordingly went into the workshop and rolled out a large tyre he says of a type used in ten-wheeler trucks. He placed this between the pipe and the excavator as instructed then climbed onto the pipe and removed the straps. It is relevant that there is an incline although not a steep one where this work was being carried out. The intent of the manager was obvious, to place the pipe on its side on top of the empty tyre so that the inner moulding could be removed. What occurred next however was probably as startling as it was tragic.

In trying to achieve this purpose, the manager used the excavator boom to lay the pipe on the tyre. According to his evidence he managed to place the pipe on the tyre with the open end facing the workshop. The pipe at that time was stable. However Naite asked him to turn the pipe side on to the workshop. He used the teeth of the bucket to do this by pushing on the inside edge of the pipe. That was when it became unstable and after bouncing twice the pipe rolled off the tyre and towards a Suzuki jeep parked nearby. The plaintiff at this time was not near the pipe or in its way.

The plaintiffs version is different. He said the pipe was never stable. The bucket was used to try and place it onto the tyre with the open end facing the workshop but this was unsuccessful and the pipe bounced twice and rolled off the tyre towards the parked vehicle.

Whichever version is accepted certain matters are clear. This was a heavy concrete pipe made heavier by the presence inside it of an inner steel casing. An excavator capable of lifting a 20-ton load was used no doubt because of that very reason. The excavator bucket being used was of a modified type with only two teeth as opposed to the heavier and larger 3-teeth and 5-teeth buckets. The manager in his evidence in cross examination admitted "because he has sworn on oath on the bible" that there was a "50/50" chance of the pipe becoming unstable while being turned on the tyre. That is a recognition by him of the risky nature of the manouvre being undertaken. It also should not be overlooked that all this was taking place not on flat ground but on an incline. It is perhaps not surprising the pipe became unstable and rolled off.

The manager and the plaintiff generally agree as to what occurred next. As the pipe fell off it gathered momentum and rolled towards the parked Suzuki. The manager swung the bucket around to try and stop it. He could not however place the bucket between the rolling pipe and the Suzuki because it would not fit. He therefore used the teeth of the bucket to in his words "flick" and yank the rolling pipe away from the vehicle and back towards the excavator. This succeeded and the pipe came to rest leaning against the right track of the excavator. Everyone agreed everything happened very fast.

In one crucial area however the managers evidence differs from the plaintiff. Mr Ott says that as the pipe rolled towards the Suzuki the plaintiff positioned himself between the pipe and the vehicle and tried to stop the rolling pipe. This was another reason why he could not place the bucket between the pipe and the Suzuki. He swore at him and told him to get away in case he gets hurt and he thought the plaintiff did that. He was surprised when the pipe came to rest against the excavator and he saw the plaintiff lying in between the excavator tracks injured. He swore again and exited the excavator cab and with some of his crew gently lifted the plaintiff away and onto a vehicle bound for the hospital.

The plaintiffs evidence is at no time did he try to interfere with the rolling pipe. After unhooking the straps, he stood out of the way at the left front side of the excavator. As the operator placed it on the tyre the pipe bounced twice and rolled off towards the Suzuki jeep. The operator then used the bucket to flick the pipe back towards the excavator and where he was standing. The speed and unexpectedness of the manoeuvre took him by surprise and he was unable to avoid the oncoming pipe. It struck his side and came to rest by the left track of the excavator. He believed the manager was trying to yank the rolling pipe not towards the excavator but back onto the tyre. He denied trying to stop the rolling pipe and denied hearing the manager swear at him and instruct him to get away. He accepted however that there were other employees standing in front of the workshop entrance and they were in a position to see what was happening. This included Naite the chief welder. He said there were also other employees in the vicinity but they were inside the workshop and would not have seen what occurred.

Four of the plaintiffs co-workers gave evidence. The first was Auauna Vaoga the then office manager of the defendant. He said he was standing just inside the entrance to the workshop where this operation was taking place. He saw the pipe being placed onto the tyre and it rolling off towards the parked Suzuki. He said the plaintiff who had been standing beside them ran towards the rolling pipe. He did not know what the plaintiff was trying to do but he heard the manager call to the plaintiff to get away but the plaintiff did not. The manager used the excavator bucket to yank the pipe back towards the excavator and the plaintiff got caught between the pipe and the excavator tracks. He said the plaintiffs evidence that he did not go near the rolling pipe was wrong but he did not see the plaintiff place his hands on the rolling pipe to try and physically stop it.

Another co-worker Fiti Samata also gave evidence. He said he was standing in the doorway of the workshop and observed what happened. He was adamant the plaintiff ran to the rolling pipe and tried to stop it with his hands. He saw the plaintiffs feet slipping along the ground and heard the manager swear at the plaintiff and tell him to get away. He said the plaintiff did but ran instead under the boom of the excavator. At that time Montini used the bucket to yank the pipe back towards the excavator. The plaintiff was struck by the pipe and ended up lying in between the excavator tracks. The pipe came to a rest on one of the tracks.

A third co-worker of the plaintiff Filemu Magele also gave evidence. He said the plaintiff did try to stop the pipe. He tried to get something to block the rolling pipe but when that failed he ran to the pipe and used his hands to try and stop it. He heard their boss yell at the plaintiff to get away and the plaintiff did. However when Montini flipped the pipe back towards the excavator it struck the plaintiff standing nearby causing him to fall injured in between the tracks of the excavator. The pipe came to rest on the left excavator track. Their boss swore and exited the excavator and instructed them not to be hasty but to take the plaintiff to hospital. This he did and on the way the plaintiff told him he was wrong and was too quick in going to the pipe. The plaintiff also told him his legs were now useless and he would be better off dead.

A fourth co-worker was called but I disregard his evidence of the plaintiff smoking marijuana the morning of the accident because there is no evidence even if it is correct as to how or to what extent if any this may have affected the plaintiffs judgment or contributed to the accident.

Discussion:

The evidence of the plaintiffs co-workers swings the pendulum away from the plaintiff. While they do not agree on all the details of what happened, this is not unusual. There was no reason to expect anything dramatic would occur and no reason why everyone would pay attention to the minutiae. My impression is the workers were curious as to what was happening and were standing around watching the events unfold. There is agreement on the main issues in particular that the plaintiff ran from the safety of where he was standing to the rolling pipe. He was then instructed by his boss to get away and it appears that is what the plaintiff tried to do. But a wrong choice of retreat route placed him in the path of the pipe which was being yanked back towards the excavator. He was no doubt taken by surprise by this action and this is how he became injured.

I prefer the evidence of the manager and the co-workers and further note that if his evidence of standing to the left of the excavator pre-impact is correct, there would be no reason why the pipe being yanked back to the right side of the excavator would strike him. He was the author of much of his misfortune in entering the area of danger and putting himself in close proximity to the out of control heavy rolling pipe. Having viewed the accident scene it is clear we are not talking about substantial distances. The plaintiffs own evidence was after he unstrapped the pipe, the excavator was immediately in front of the tyre with the pipe in an upright position behind it. He was standing approximately 2 meters to the left of the tyre. The suzuki was parked on the right of the tyre a bit further away, a distance estimated by the manager in his evidence at approximately 10 meters.

I am satisfied the plaintiff was guilty of contributory negligence. The main question however is whether there was primary negligence on the part of the defendant manager in his use of the excavator bucket for a purpose and for manoeuvres for which it was not designed.

I am satisfied to the required standard that there was. The action of balancing on a tyre the heavy concrete pipe with its inner steel casing still attached using an under size bucket was neither safe nor sound. And using the bucket to turn it while on the tyre was by the defendant managers own assessment risky and carried a 50/50 chance of instability. A reasonable and prudent employer would have used proper equipment and a safer procedure to remove the inner steel casing. Furthermore, when the pipe began to roll the first priority should have been to secure the safety and well-being of the foolish employee who the manager knew had gone to the pipe to try and stop it from reaching the parked Suzuki. The evidence shows that after yelling at and instructing the plaintiff to get away the manager carried on in his actions no doubt believing the plaintiff had obeyed and had placed himself out of harms way. I accept the accident was unintended but the negligence comes about as a combined result of the risky manoeuvres being performed with inappropriate equipment and the failure of the machine operator to ensure the plaintiff had in fact obeyed his instruction and vacated the area. The priority was not to save the parked vehicle from damage but for the manager to ensure first the safety of his employee before indulging in the further dangerous manoeuvre of using the teeth of the bucket to yank the rolling pipe away from the car.

That an employer owes its employees a duty of care is well established by cases such as Samoan Public Trustee v Pila Patu [1970-1979] WSLR 35 and Manufotu v Phil/ Rorbyg Joint Venture [2002] WSSC 12 where the following passage was cited with approval and applied by Sapolu CJ:

"The employers obligation is not merely to provide a safe system of work, it is an obligation to establish maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer."

The cases establish that this duty includes providing a safe system of work and using adequate plant and applicances. As was said by Mason J in Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 687:

"The employer has the exclusive responsibility for the safety of the appliances the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employers provision and judgment in relation to these matters. The consequence is that in these relevant aspects the employers safety is in the hands of the employer, it is his responsibility."

Furthermore as noted by the Chief Justice in the Rorbyg Case the employer in fulfilling his duty to provide a safe system of work is also required to take into account the possibility of inattention, lapse of concentration, inadvertence or misjudgment on the part of his employee. It is not an acceptable answer to an action in negligence for personal injuries for the employer to say that the system of work used was safe provided there was no inattention, lapse of concentration, inadvertence or misjudgment on the part of the employee. Because those are matters the employer should take into account in providing a safe system of work. In this case it means the defendant manager should have checked that all of his employees were well out of the way and nowhere near where the pipe was going to be yanked before undertaking the manoeuvre. The inattention or misjudgment on the part of the plaintiff in standing where the pipe was being yanked provides no answer or excuse for the defendant manager.

For the meaning of a "system of work" see Charlesworth & Percy on Negligence 10th edition at paragraph 10-62 where it is stated:

"A system of work is the term used to describe (i) the organization of the work; (ii) the way in which it is intended the work shall be carried out; (iii) the giving of adequate instructions; (iv) the sequence of events; (v) the taking of precautions for the safety of the workers; (vi) the number of persons required to do the job; (vii) the part to be taken by each and (viii) the moment at which they shall perform their respective tasks."

According to Lord Greene MR in Speed v Thomas Swift & Co. [1943] 1KB 557, 563 it

"may include according to circumstances such matters as the physical layout of the job – the setting of the stage so to speak – the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system."

A simpler definition was favoured by Lord Brandon in McDermid v Nash Dredging & Reclamation Co. Ltd [1986] UKHL 5; [1987] A.C. 906, 919 (HL) when he said:

"the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it."

The managers actions and his use of the excavator fall well within the parameters of a "system of work" notwithstanding that this was the first time the excavator was used in this one-off manner. As noted in Charlesworth at paragraph 10-63:

"An employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety: Vernon v B.T.C. (1963) 107 S.J. 113 (an employer should have made allowances for the fact tht workmen do stumble sometimes); Field v Jeavons & Co. Ltd [1965] 1 W.L.R. 996 (occupiers of a factory must be prepared for some degree of stupidity on the part of those working in the factory); McArther v B.R.B. (1968) 6 K.I.R. 40 (engine driver was killed when he was obliged to lean out of the cab to observe a signal placed near a bridge with an unusually narrow clearance)."

Reference should also be made to the judgment of Lord Reid in Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 835 where he said:

"A system of working normally implies that the work consists of a series of similar or somewhat similar operations and the conception of a system of working is not easily applied to a case where only a single act of a particular kind is to be performed. Recently however, this obligation has been extended to cover certain cases where only a single operation is involved. I think that the justification for this is that, where the operation is of a complicated or unusual character, an employer careful of the safety of his men would organize it before it was begun and in that sense provide a safe system of working for it."

See also Nicol v Allyacht Spurs Pty Ltd (1987) 75 Q.I.R. 1, H.C. of Australia.

Of relevance here is the managers evidence that post-accident a different solution to removing the inner steel casing problem was found and no further accidents occurred.

Decision:

I find negligence established to the required standard as against the defendant manager and thereby the defendant. The degree of negligence is not gross but the use of the two teeth excavator bucket to perform the obviously delicate and difficult task of balancing a heavy concrete (with inner steel casing intact) pipe on a tyre sitting on an incline and the subsequent action of yanking the rolling pipe back away from the parked Suzuki without first ensuring the whereabouts and safety of the plaintiff constitutes a breach of the employers common law duties of care. It is also a breach of the defendants statutory duties under subsections 11 and 23 (c) of the Occupational Safety and Health Act 2002.

However there is much contributory negligence present. If the plaintiff had not entered the danger area and tried to stop the pipe the evidence shows he would have been out of harms way and the subsequent yanking back of the pipe towards the excavator should not have affected him. Instead he took the foolish option of trying to stop a heavy rolling concrete pipe which in his own evidence he said could not be stopped by any person, and in the end he was unable to get clear.

Considering all the circumstances, I assess the plaintiffs contributory negligence at 80%. That is, the liability of the defendant company I fix at 20%. A useful discussion of the relevant principles of the law on contributory negligence can be found in Matautia v Schuster [1993] WSSC 15.

The defence of volenti non fit injuria was also raised but was not actively pursued by defence counsel. Probably because the defence does not arise on the facts because for volenti to succeed it must be shown the plaintiff voluntarily assumed the risk of harm. In other words it must be shown "that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran impliedly agreed to incur it": per Wills J in Osborne v London & North Western Railway Co. [1888] UKLawRpKQB 115; (1888) 21 QBD 220, 223. In this case I am not satisfied the plaintiff had full knowledge of the nature and extent of the risks he was running as the evidence shows he had no idea the excavator operator was going to yank the pipe back towards the excavator to where he was standing. I have no doubt that had he known that he would have expeditiously got out of the way.

For the reasons given I find for the plaintiff but only to the extent of 20% liability. If agreement cannot be reached as to quantum, the parties should consider mediating their clients respective positions. If however this does not prove successful, the matter can be re-listed for a determination as to damages. As both parties have been partially successful in the present matter each will bear their own costs.

JUSTICE NELSON