Home owners are responsible for injuries to tradesmen working on their home if they fail to protect them from harm.
This is the lesson from an important decision on occupiers’ liability: Hendrex v Keating [2016] TASSC 20 decided this month.
Chief Justice Blow of the Supreme Court of Tasmania found that that the home owners (Matthew and Lisa Keating) had breached their duty of care for the safety of their tradesman (Dale Hendrex), and awarded damages of $1,126,904.
What was the duty of care, how was it breached, and did it cause the injury?
The Keatings wanted to replace the roof cladding at their house in Pybus Street, Snug, South Hobart. They engaged Hendrex, a roofing contractor they knew, and agreed to pay him $25 per hour. Mr Keating, a neighbour and another friend helped Hendrex, as unpaid volunteers.
Mr Keating set up his ladder on the concrete driveway at the front of the carport so that Hendrex and the other workers could travel to and from the roof of the house via that ladder and the roof of the carport. The ladder was erected in the “A” position, and not in the extension position. The ladder was tendered as an exhibit at the trial.
The duty of care
The Court was satisfied that the Keatings owed Hendrex “a duty to take reasonable care to protect him from harm when he was travelling up to and down from the carport roof.”
The Court did not explore whether or not the risk of falling was obvious, and therefore whether the defence of voluntary assumption of risk could be raised by the Keatings.
The breach of the duty of care
Each of the three requisites set out in s 11 of the Civil Liability Act 2002 (Tas) were satisfied:
- It was reasonably foreseeable that “any person travelling to or from the roof of the house that day via the ladder and the carport could fall” and be injured because the top of the ladder was 40 cm lower than the carport roof. Because of the gap, an “awkward manoeuvre” was necessary to step down onto the ladder from the carport roof. Also, it was reasonably foreseeable that “the ladder might tilt if it were not secured”.
- The risk of injury was significant.
- A reasonable person in the position of Mr Keating “would have taken precautions to avoid the risk of a man falling and suffering injury” by setting up the ladder in the extension ladder configuration so that the top was above the carport roof (90 cm above is recommended), and by securing the ladder with a rope or something similar.
Causation
The requisite that the breach of the duty of care caused the harm was satisfied for the purposes of s 13 of the Civil Liability Act 2002 (Tas) -
“But for (a) Mr Keating’s failure to erect the ladder as an extension ladder, with its top well above the carport roof, and (b) his failure to secure the ladder with a rope, [Hendrex] would have descended the ladder in a conventional way.”
The Court said that “it is clearly appropriate that the scope of the Keating’s liability should extend to the harm that Hendrex suffered”.
Contributory Negligence
Was Hendrex contributorily negligent by failing “to take reasonable care for his own safety” under s 23 of the Civil Liability Act 2002 (Tas)?
The Court found that the injury was caused in this way:
Hendrex “elected to descend from the carport roof by sitting on the edge of the roof, stepping face forward onto the ladder, and descending the ladder without turning to face the ladder”. “He lost balance on the way down, causing the ladder to fall over”. He suffered severe head injuries, fractured both of his wrists and injured his right shoulder when he fell onto the concrete driveway.
The Court found that Hendrex was negligent, just as Keating was - because he should have looked at the ladder before he climbed it, and saw that it was not fully extended and not secured, and either did so himself, or asked Keating to do so.
The Court considered that Hendrex was more negligent than Keating because he had descended the ladder frontwards, with nothing to hang onto. Therefore the Court apportioned to Hendrex 60% responsibility and to Keating 40% responsibility for the fall. And so the damages awarded to Hendrex were reduced by 60% because of his contributory negligence.
Damages
The damages were assessed on the basis that: Hendrex was 36 years old on the day of his fall and 44 years old at the time of the trial; he had not done any paid work since his fall; he was permanently unemployable as a result of his fall; he was substantially incapacitated with brain damage: memory impairment and headaches; and his wife had taken the role of a carer, looking after him day and night.
This is how the damages were calculated:
Past loss of earnings $60,750
Future loss of earnings $180,750
Past gratuitous care $548,000
Future care $1,537,226
Past medical and pharmaceutical expenses $29,957
Future medical, pharmaceutical & misc. expenses $81,078
Pain and suffering and loss of amenities $210,000
Total of the above $2,647,261
Less 60% (contributory negligence) ($1,588,357)
Balance $1,058,904
Fund management expenses (17% of $400,000) $68,000
Total $1,126,904
Other claims
In addition the Civil Liabilities Act claim, Hendrex pursued two other claims at the trial –
- Breach of the Workplace Health and Safety Act and Regulations – the Court held that the Act did not apply because Keating did not make available any part of the premises to be used as a workplace; and Hendrex was an independent contractor, not an employee; and AS 1892 - being the Australian Standard relating to portable ladders - was not breached because there was nothing unsuitable about the design or construction of the ladder for this use.
- Breach of an implied term in the contract to provide a safe system of work – the Court was not convinced that without implying that term the contract lacked business efficacy.
Final thoughts
Ladder safety is a serious issue – look at the ACCC webpages – Product Safety Australia and Safety Alert using a ladder.
The proceedings illustrate the importance of maintaining Home Insurance, because of the Liability cover it contains. This is a typical cover -
We cover the legal liability of you or your family for: death or bodily injury to someone else, or loss or damage to someone else’s property in an incident that takes place in your home or at the site and for which you or your family is responsible as an owner or occupier of your home or the site. For example, you may be liable when someone falls and is injured when visiting your home.
This covers not only the damages award, but also the legal cost of defending the proceedings.
And so unless a home owner has Liability insurance, they are putting their property and their assets at risk every time a tradesman visits, even if the tradesman has their own insurance.