IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

CA 13/08

BETWEEN:

MOSES AUTAGAVAIA
of Vaoala, Samoa
Appellant

AND:

KING CONSTRUCTION LIMITED
Respondent

Coram:	The Honourable Justice Baragwanath
The Honourable Justice Slicer
The Honourable Justice Fisher

Hearing: 	7 October 2009

Counsel:	Ms M K Tuatagaloa for the appellant
Mr R T Faaiuaso for the respondent

Judgment: 	9 October 2009

JUDGMENT OF THE COURT

Introduction

[1]	On 18 September 2008 Nelson J gave judgment for the appellant on a claim for personal injury suffered in the course of his employment with the respondent ("the company"). Nelson J found the company liable for negligence and breach of statutory duty but reduced damages by 80 per cent for contributory negligence. The appellant appeals against the finding on contributory negligence.

Factual Background

[2]	The company has a construction business operating from a workshop and yard at Vaitele. Mr Ott was its manager and major shareholder, Mr Naite its senior welder and the appellant its assistant welder. The appellant was a man in his mid-twenties who had been employed by the company for about 4 to 6 months by the time the events in question occurred.

[3]	In February 2006 the company’s operations included the construction of 50 concrete culverts for a bridge project. The culverts were formed by pouring concrete between inner and outer cylindrical steel casings. When set, the concrete formed a heavy concrete pipe 1.5 metres in diameter and 1.2 metres in length. 

[4]	The first pipe was fabricated in the company’s open yard at Vaitele on 23 February 2006. After the concrete had set, the outer steel casing was successfully removed but there was a problem with the inner casing. After consulting the casing manufacturer, Mr Ott realised that the inner casing would need to be cut away from the new pipe using gas cutting equipment. The gas cutting equipment was installed in the workshop in another part of the yard. The pipe with its inner casing still intact would have to be taken to an area adjacent to the workshop. There it could be worked on with the gas cutting equipment. 

[5]	The company had a mechanical excavator with a two-pronged bucket on the end of a hydraulically operated steel boom. Mr Ott drove the excavator to the position in the yard where the pipe lay. Under his direction the appellant and another employee attached the pipe to the excavator bucket with strops. 

[6]	Operating the excavator, Mr Ott carried the pipe to the workshop. He set it down on the ground in a vertical position in front of the workshop. The ground where the pipe stood was on a gentle incline sloping down from the workshop. Approximately 10 metres from the tyre was the parked Suzuki jeep of a company employee.

[7]	Under Mr Ott’s instructions, the appellant removed the strops attaching the pipe to the bucket, obtained an empty tyre from the workshop, and placed the tyre on the ground between the pipe and the excavator. The tyre was there to cushion the pipe from the ground when toppled onto its side. Once on its side, the welders would be able to enter the pipe to cut away the inner casing. The appellant stood back about 2 metres from the excavator. Other interested employees from the workshop gathered to watch. 

[8]	Mr Ott successfully used the bucket on the end of the excavator boom to topple the pipe on to the tyre with the open end facing the workshop. Mr Naite asked Mr Ott to realign the pipe on the tyre so that it would be side on to the workshop. It does not seem to have been noticed that with the pipe side on to the workshop its rolling surface would be facing downhill. Using the excavator boom, Mr Ott placed the teeth of the bucket against the inside edge of the pipe and pushed against it to rotate it. During this manoeuvre the pipe became unstable, rolled off the tyre, and set off down the slope towards the Suzuki jeep nearby.

[9]	In this Court there is no basis for challenging the credibility findings which Nelson J made as to what occurred next. When the pipe headed for the parked Suzuki, the appellant leapt into its path in an attempt to stop it. At the same time Mr Ott swung the excavator bucket around to head off the pipe. Seeing the appellant between the rolling pipe and the vehicle, Mr Ott shouted at him to get out of the way. The appellant leapt back to a position which he thought would take him out of harm’s way. He was now between the pipe and the excavator. Unfortunately at that very moment Mr Ott used the excavator bucket to pull the rolling pipe away from the Suzuki on a new path towards the appellant. The pipe struck the appellant who finished up prone between the tracks of the excavator. The pipe itself finished up resting against one of the tracks of the excavator. 

[10]	The appellant was taken to hospital. There it was found that the injuries he had suffered were so severe that he would be a quadriplegic for life.

Proceedings in the Supreme Court

[11]	The appellant sued the company claiming damages for personal injury. He alleged breach of an employer’s common law duty of care to an employee and breach of parallel statutory duties owed under ss 11 and 23(c) of the Occupational Safety and Health Act 2002. The company denied liability and in the alternative pleaded contributory negligence and volenti non fit injuria.

[12]	 Following a trial on liability only, Nelson J gave judgment on 18 September 2008. There had been a conflict between the account given by the appellant, on the one hand, and his co-workers, on the other. Nelson J found against the appellant on that aspect and determined the facts to be those outlined above. 

[13]	As to the legal consequences of those facts, Nelson J accepted that the company had breached a duty to provide and maintain a safe system of work. He also found that the company was vicariously liable for the negligence of Mr Ott in trying to balance a heavy concrete pipe and casing on a tyre and trying to turn it using an excavator bucket. Even on Mr Ott’s own account, this was a risky venture with a 50/50 chance of instability. The Judge also found that when the pipe began to roll, Mr Ott’s first priority should have been to secure the appellant’s safety rather than to save the parked Suzuki from damage. He accepted that these failures and actions constituted negligence in tort and a breach of the statutory duties owed under the Occupational Safety and Heath Act.

[14]	The Judge went on to find that there was contributory negligence on the appellant’s part. The contributory negligence consisted of entering the danger area and trying to stop the rolling pipe "which in his own evidence he said could not be stopped by any person". However the Judge rejected the defence of volenti non fit injuria because he was not satisfied that the appellant had full knowledge of the nature and extent of the risks he was running in that "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". 

[15]	The Judge went on to conclude that the appellant’s contributory negligence was to be assessed at 80 per cent and in consequence the liability of the company only 20 per cent of the damages still to be determined.

The Appeal 

[16]	In this Court the appellant has not challenged the Judge’s factual findings. He contends that the Judge misunderstood the principles by which relative contributions are determined as between employer and employee. He also contends that the Judge was plainly wrong in the manner in which he applied those principles to the facts of this case.

Liability and contributory negligence principles

[17]	In both this court and the court below it was undisputed that four legal principles were applicable:

(a)	An employer owes its employees a duty of care to establish, maintain and enforce a safe system of work: see, for example, Samoan Public Trustee v Pila Patu [1970-1979] WSLR 35 and Manufotu v Phil/Rorbyg Joint Venture [2002] WSSC 12.

(b)	For this purpose "system of work" extends to the organisation of the work, the way in which it is intended the work is to be carried out, the giving of adequate instructions, the sequence of events, the taking of precautions for the safety of the workers, the number of persons required to do the job, the part to be taken by each and the moment at which they are to perform their respective tasks: Charlesworth & Percy On Negligence, 10th Ed at para 10-62; see further Speed v Thomas Swift & Co. [1943] 1KB 557,563.

(c)	The obligation to establish, maintain and enforce a safe system of work extends to a single operation which has not previously been performed: Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 835 and Nicol v Allyacht Spurs Ltd (1987) 75 ALR, H.C. of Australia.

(d)	In devising a safe system of work, the employer must cater for foreseeable human error on the part of employees including inattention, lapse of concentration, inadvertence and misjudgment: Field v Jeavons & Co. Ltd [1965] 1 W.L.R. 996; McArther v B.R.B. (1968) 6 K.I.R. 40; Oli Manufoti v Pihl/Rorbyg Joint Venture [2002] WSSC 12; and McLean v Tedman. (1984) 155 CLR 306 at pp 311-312.

[18]	Those principles were adverted to in the judgment of Nelson J. Unfortunately, counsel do not appear to have drawn to his attention a fifth principle which we see as the key to the present case. It is often referred to as the "agony of the moment" principle. On that principle a plaintiff will not be guilty of contributory negligence if (i) his or her action is a response to a sudden emergency brought about by the wrongful act of the defendant and (ii) the action is one that a reasonable person faced with that emergency might take. The rule does not help a person who has created the emergency but does excuse a blameless person who, in a state of emergency, does the wrong thing due to the need to make up his or her mind in a hurry: Hindmarsh v Guthrie (1930) NZLR 15; Donald v Marshall [1939] GLR 643. In Hindmarsh v Guthrie, for example, a plaintiff was exonerated from any blame in swerving to the wrong side of the road in order to avoid a collision.

Application of principles to this case

[19]	As Nelson J pointed out, the originating cause of the present accident was the decision of Mr Ott, supported by the expressed wish of the senior welder, Mr Naite, to attempt to realign a heavy concrete pipe on a tyre using the bucket of an excavator with employees in the vicinity. Mr Ott himself accepted that the exercise was a risky one with a 50/50 chance of instability. It was done on sloping ground. There was a vehicle nearby. Employees were allowed to stand in the vicinity. The appellant was only two metres away. 

[20]	Nelson J said "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 Judge noted the employer’s obligation to take into account the possibility of inattention, lapse of concentration, inadvertence or misjudgment on the part of his employee and continued that "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". 

[21]	We agree. Well before matters started to go wrong, it was foreseeable that the pipe might roll off the tyre, that it might cause damage to person or property, and that faced with such an emergency a conscientious employee might intervene in an attempt to save the situation. 

[22]	However the last opportunity for a considered decision was the moment when Mr Ott decided to proceed with the attempt to rotate the pipe on the tyre. Even at that late stage there was ample time to pause, take stock, and decide whether what was proposed was a safe course to follow. But from that point on all opportunity for a considered decision was lost. All witnesses agreed that once the pipe rolled off the tyre, everything happened very quickly. The two main participants – Mr Ott and the appellant – were making split second decisions. The appellant’s split second decisions were to leap forward to try to stop the pipe and then to leap to a position where he thought he would be safe when Mr Ott shouted. Mr Ott’s split second decisions were to shout when he saw the appellant and then to deflect the pipe into a new direction with the excavator bucket. We do not criticise either of them for the decisions they made once the pipe had rolled off the tyre. Those decisions were made in the agony of the moment. But the same can not be said of the decisions made up to the point that the pipe rolled off the tyre. Until then there was ample opportunity to stop the dangerous course they were on. 

[23]	The Judge was critical of the appellant for taking "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". But all this shows is that given the luxury of time to think about it, and with the benefit of hindsight, the appellant could see that his attempt to stop the pipe was futile. That is the whole point of the agony of the moment principle. Indeed, in the context of volenti non fit injuria the Judge himself concluded that "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".

[24]	This is a classic case of an employer creating a dangerous emergency which trapped an employee into an impulsive response. Acting from the best of motives, and without time to think, the employee has responded in the way he thought best by leaping into the path of a rolling concrete pipe. Even then all would have been well if the pipe had been left to continue on its existing path. But tragically, just as the employee leapt clear, another hazard was created when the manager flicked the pipe into his escape route. We do not criticise the manager for his own reaction to the emergency. But we do criticise the employer for creating the situation in the first place. 

[25]	We agree that the company is liable but cannot accept that there was any contributory negligence on the appellant’s part. 

Result

[26]	The appeal is allowed. The respondent is liable for such sum as may be found to be appropriate damages without deduction for contributory negligence. 

[27]	In this Court the respondent must pay the appellant the sum of $1,500 in costs. Costs in the Supreme Court are remitted to that Court for determination in addition to quantum of damages. 

Honourable Justice Baragwanath
Honourable Justice Slicer
Honourable Justice Fisher