A plaintiff was awarded $1.38 million in damages against his employer after sustaining injuries consequent to a fall from his own ladder while inspecting hail damage to a roof. The Queensland District Court found that his employer was negligent by failing to supply a ladder mate or an adequate ladder to the plaintiff, and the plaintiff’s misjudgement in the circumstances did not establish contributory negligence.
In issue
- Whether the plaintiff’s employer breached its duty of care to provide a safe system of work by allowing the plaintiff to ascend and descend a ladder alone without having appropriate means to secure it.
- Whether the plaintiff’s claim should be reduced for contributory negligence for failing to take precautions to mitigate his risk of falling from the ladder despite the plaintiff’s history and knowledge of the building industry and experience with ladder stabilisation aids.
The background
On 31 October 2022, whilst working alone west of Brisbane, the plaintiff, an assessor and estimator in the building-insurance area, sustained significant injuries to his right elbow, right hip and spine after falling from a ladder whilst he was descending. He had used the ladder to access a roof which he was inspecting for hail damage following a hailstorm in the area.
The plaintiff was experienced in assessment and estimation in the insurance-building industry and had previously worked at three other firms performing the same kind of work.
The plaintiff had been provided with a ladder by his employer but, due to the usual ladder being borrowed by another employee, the employer had requested that the plaintiff use his own personal ladder temporarily while the employer obtained extra ladders.
On the day of the incident, the plaintiff chose to use his own step-ladder to inspect the roof of a single-storey home. The step-ladder measured 350 mm above the gutter and the plaintiff used a strap to attach the top of the ladder to the gutter for stabilisation. However, the strap was required to be removed when descending the ladder following the completion of the inspection. Despite the plaintiff being unable to recall how the fall had occurred, it was accepted that he had fallen from the ladder whilst descending after removing the strap.
It was accepted by the Court that the plaintiff had a conversation with the employer’s operations manager about requiring ladders and requesting a ‘ladder mate’ for safety as he would be working alone without any assistance to secure the ladder when climbing up and getting on roofs. The Court heard evidence that a ‘ladder mate’ is a piece of equipment which can be hooked over a metal gutter from the ground to provide for stable placement of the ladder when it is leaning against a gutter.
The plaintiff issued proceedings in the District Court of Queensland against his employer Ezy Projects Pty Ltd (the employer) alleging its negligence caused his injuries.
The decision at trial
Did the employer breach its duty of care?
His Honour, Judge Bernard KC, applied the duty of care principles articulated by the High Court in Czatyrko v Edith Cowan University [2005] HCA 14, noting that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury.
His Honour noted the relevant risk of harm was the risk of injury to an employee when required to ascend and descend a ladder alone without having appropriate means to stabilise it. Consequently, His Honour found that the employer breached its non-delegable duty of care by failing to supply an adequate ladder or a ladder mate to the plaintiff.
His Honour reasoned that if these precautions were provided by the employer, the plaintiff would have utilised them and the probability of the incident occurring would be extremely low or 'perhaps nil'. In reaching this determination, His Honour placed great significance on the fact that the burden of supplying a good quality ladder and/or a ladder mate was 'very modest', with a ladder mate being sold by hardware retailers for approximately $50.
Did the plaintiff contribute to his own injuries?
His Honour characterised the question of contributory negligence as being whether the plaintiff’s fall, in circumstances where the plaintiff had knowledge of the risk and how to avoid it, could be said to amount to mere inadvertence, inattention or misjudgement only, or whether his actions amounted to negligence which made him responsible, in part, for his own loss.
In his reasons, His Honour noted the plaintiff’s honesty whilst giving evidence, including his concession under cross-examination that he could have bought a ladder mate himself. In this regard, His Honour commented that 'the fact that Mr McGrath did not have a proper ladder and/or a ladder mate is an omission that lies with his employer. On the other hand, there is no doubt he could have gone and got a ladder mate himself.'
His Honour ultimately concluded there was nothing about the way the accident occurred which indicated a disregard by the plaintiff for his own safety such as placing the ladder in an obviously dangerous location or jumping from the roof. Rather, the accident occurred because of the plaintiff’s misjudgement. That is, the plaintiff formed a reasonable view that the method he adopted would be safe, albeit this turned out to be wrong. Accordingly, His Honour held that the circumstances did not engage the principles of contributory negligence.
The agreed damages between the parties totalled $1,378,287.61. After a refund to WorkCover Queensland of $741,623.57 was deducted, His Honour entered judgment for the plaintiff of $636,664.04.
Implications for you
This case serves as a reminder for employers in system-of-work cases that an employee’s inadvertence is unlikely to reduce an employer’s liability when the employer has failed to establish proper safety systems, especially when the burden or cost of implementing such a system is minimal. It is therefore essential for employers to undertake appropriate risk assessments, devise proper methods, instruct and train employees, and take reasonable steps to ensure the implementation of a safe system of work, even where employees may be experienced workers.
