By Gaby Grammeno Contributor

The worker was employed by a formwork subcontractor as a labourer on a construction site in Canberra. 

On his first day on the job, with only about four weeks’ experience as a labourer, the 26-year-old was involved in setting up formwork for concrete pours. He was directed to carry large sheets of plywood across the top floor of the building, which was exposed to the elements.

It was a cold, damp, icy morning. As he was walking across the wet floor, he slipped and fell heavily on his left side. He noticed immediate pain in his lower back, hip and leg, and was unable to get to his feet.

After 12 hours’ observation in hospital he was sent home on crutches but later suffered ongoing back pain as a result of the accident. Because of his pain, discomfort and mobility issues, he claimed he was unfit for employment and dependent on support from family and friends, as he was not eligible for Centrelink benefits.

He claimed his employer and the host employer (itself a subcontractor who gave instructions and prescribed the system of work for the formwork subcontractor) were negligent in that they had failed to provide a safe system of work.

He maintained that both businesses had failed to take precautions such as warning him about dangerous aspects of the work, ensuring plywood sheets were carried by two people, that the work surface was wiped down or otherwise free from moisture, and not requiring him to walk on the parts that were slippery.

He sought damages for past and future lost earnings, along with ongoing domestic assistance, general damages and medical expenses totalling approximately $600,000.

The employer did not hold the requisite workers compensation insurance, so the Workers Compensation Default Insurance Fund Manager in the Australian Capital Territory was also involved.

The case was heard in the Supreme Court of the ACT.

IN COURT

The worker’s direct employer – the formwork subcontractor – did not file a defence.

The host employer – which was responsible for safety measures on site and when work should start – denied its own negligence was to blame. It knew the decks were wet with ice and maintained that the workers were told to wipe down the deck before working in their areas.

It submitted that any injuries were the fault of the formwork subcontractor, or the worker’s own failure to take proper care, follow instructions to mop and de-ice the decks or refuse to do unsafe work.

It also questioned the extent of the loss and damage claimed, submitting that even if the worker had not fallen that day, he probably would have ended up with similar symptoms within a few years anyway due to a pre-existing, previously asymptomatic degenerative spinal condition.

The worker, however, said no one had told him anything about slippery floors. Though instructions had to be passed on to him in Arabic by his employer, there was no clear evidence that the need to mop and dry the floors was even communicated to the worker’s employer, and in the event, they worked on areas they had not mopped so should not have walked on.

Her Honour Justice Verity McWilliam accepted that though the worker could see the deck was wet and he knew it was slippery, no one had told him to mop the surface before walking on it, and despite his care, he slipped and fell.

The formwork subcontractor owed the worker a duty of care to avoid exposing him to the risk of injury. Considering the degree of control it exercised over how work was carried out at the site, the host employer also had a duty of care towards the worker, as an employee of its subcontractor.

Both the formwork subcontractor and its host employer failed to take reasonable precautions against the risk of injury due to slipping on ice or a slippery surface.

Regarding the worker’s contributory negligence, Justice McWilliam found that because he was on a new job under time pressure, facing a language barrier and dependent on the employment for income, and especially considering the power imbalance between the worker and his employers, he could not realistically have refused to do the work.

The medical evidence showed the worker did have a pre-existing asymptomatic spinal condition that was likely to cause back pain later in his life, but it was aggravated or exacerbated by the incident, and his current intermittent pain and mobility restrictions were probably related to his fall.

Anticipating that the injury would be manageable with rehabilitation and regular physiotherapy, the Court awarded general damages of $100,000 plus $3,200 for interest; $2,000 and $10,000 respectively for past and future treatment expenses; $10,000 for past and future domestic assistance; $12,000 for out-of-pocket expenses and $200,000 for past and future economic loss to enable him to improve his English and re-establish himself in his former profession as a special needs teacher.

Justice McWilliam found that the damages should be discounted by 25% due to expected ‘vicissitudes’ and the ‘real likelihood that this injury would have occurred regardless of the negligence’, particularly considering the heavy physical work involved in construction.

The formwork subcontractor and the host employer were ordered to pay the worker $243,900, with half the sum to be paid by each defendant, as they were equally negligent.

WHAT IT MEANS FOR EMPLOYERS

In a work situation involving subcontractors, information and instruction on measures to minimise the risk of injury can be lost in chains of communication. Host employers need to ensure monitoring and supervision are adequate to ensure important safety messages are understood and complied with.

READ THE DECISION:

Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 (26 June 2024)