Chaffey v MPM Maintenance Services Pty Ltd & Anor
[2019] NSWDC 260
•12 June 2019
District Court
New South Wales
Medium Neutral Citation: Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260 Hearing dates: 5-7, 11 March 2019 Date of orders: 12 June 2019 Decision date: 12 June 2019 Jurisdiction: Civil Before: Hatzistergos DCJ Decision: See [305]
Catchwords: WORKERS COMPENSATION – employer and host employ – labour hire worker – negligence - assessing entitlement to compensation under different legislation – application of s 151Z of the Workers Compensation Act 1987 (NSW) Legislation Cited: Civil Liability Act 2002 (NSW) ss 3, 5B, 5R
Law Reform Miscellaneous Provisions Act 1946 (NSW) s 5
Workers Compensation Act 1987 (NSW) ss 151D, 151N, 151Z
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 280ACases Cited: Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139
Bon Appetit Family Restaurant Pty Ltd v Mongey [2009] NSWCA 14
Bourke v Hassett; Bourke v Victorian Work Cover Authority [1999] 1 VR 189
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Bulstode v Trimbel [1970] VR 840
Ghunaim v Bart [2004] NSWCA 28
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Gower v State of New South Wales [2018] NSWCA 132
Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447
Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104
Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Moravatju v Moradkhani [2013] NSWCA 157
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34
P & M Quality Smallgoods Pty Ltd v Leap Seng [2013] NSWCA 167
Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
TNT Australia Pty Ltd v Christie(2002) 65 NSWLR 1; [2003] NSWCA 47Texts Cited: N/A Category: Principal judgment Parties: Wayne Mervyn Chaffey (Plaintiff)
MPM Maintenance Services Pty Ltd (First Defendant)
Allianz Australia Workers Compensation (NSW) Ltd (Second Defendant)Representation: Counsel:
Mr M. Cranitch SC with Mr T. Meakes (for the Plaintiff)
Solicitors:
Mr A. Lloyd (for the First Defendant)
Mr S. Flett (for the Second Defendant)
Paramount Lawyers
RGSLAW
Moray & Agnew Lawyers
File Number(s): 16/88821 Publication restriction: N/A
Judgment
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On 13 May 2013 the Plaintiff occasioned personal injuries arising from an accident whilst carrying out work at the former ANZ bank at Pitt Street Sydney.
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At the time he was employed by MPM Recruitment Pty Ltd and he was contracted to work for MPM Maintenance Pty Ltd (the First Defendant). He brings this claim for damages against the First Defendant and Allianz Australia Workers Compensation (NSW) Ltd (the Second Defendant) being the insurer of his then employer.
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The background is as follows.
Employment
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On 17 October 2012 the Plaintiff signed a contract for casual employment with the First Defendant. [1] He accepted that in signing he understood that he was employed on a temporary, job to job, basis. MPM Recruitment Pty Ltd told him of the particular job and introduced him to the host employer or he was sent to the job. After meeting the host employer he would go through the process of them checking his qualifications and then inducted him into the position. The Plaintiff stated that each host employer would tell him what the job was and what he was required to do.
1. Exhibit 2D1, tab 1.
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The Plaintiff gave evidence that in November 2012, whilst working in the First Defendant’s employ as a crane operator to operate a fix gantry at Wetherill Park, he was required to lift panels off a table, tidy them up and put them away. He stated that he was stripping one of the panels down when he strained his back. He contacted his employer, told them what had happened, and indicated that he wanted to have a few days off to have his back treated. [2] He did so, before returning to work. He was then requested to fill in a form as to the injuries. [3] He stated that he was subsequently contacted by an insurance company representative to say that he wasn’t going to be compensated for his claim. He stated that he didn’t thereafter “put one in.” [4]
2. T 23.26-.33.
3. T 23.36.
4. T 23.42.
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After 2005 he had what was described as a heart problem that required a stent. [5] In 1987 he developed a ganglion after a bandsaw injury to the wrist that required surgery.
5. T22.21-.30.
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The Plaintiff nevertheless stated that up until the accident the subject of these proceedings, his state of health was fine and he did not have any aches or pains or anything else. [6]
Accident
6. T 24.15-.23.
The Plaintiff
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On Friday 10 May 2013 the Plaintiff was sent by the MPM Recruitment Pty Ltd to work for the First Defendant on a building which containing former the ANZ Bank offices earlier described. He attended at 6:30am. [7] He was instructed that along with others they were to strip out the premises and he proceeded to do work the whole of that day. [8] He did not have any issues on that occasion. He described there to be “full lighting.” [9]
7. T 24.27.
8. T 24.32-.44.
9. T 25.02.
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In cross examination the Plaintiff stated that MPM Recruitment Pty Ltd did not attend with him at the work site. He explained that when he went to the site he met Mr Thomas Young, and a number of other workers turned up after he did. He said that there was no toolbox meeting, and that Mr Young told them that they were to strip out the premises. [10] This was work he had previously done. He accepted that whatever tools he used that day were provided by Mr Young and any direction that came to him were also provided by Mr Young [11] who was described as the site foreman or supervisor. [12] He stated that that day he also tore up some carpet tiles and pulled out glass panelling. [13]
10. T 96.10-.17.
11. T 96.26-.36.
12. T 25.36-.38 and T 115.22.
13. T 96.48-97.11.
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The Plaintiff returned on Monday 13 May 2013. On that occasion, there were less workers. [14] He described there being only one ladder, being of solid tubular metal which he said was inappropriate for the job. [15] He stated that he pointed out that it was illegal to have the ladder on site. [16]
14. T 25.07-10.
15. T 25.17.
16. T 25.20.
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The Plaintiff stated that Mr Young told him what to do and where to work. [17] He stated that at some stage an electrician turned up and disconnected wiring in the ceiling, whilst leaving 2 power points to be used. [18] At that point, he described the working area as being totally blacked out. However, there were two work lights brought in by people from MPM Maintenance Pty Ltd. [19] He explained that these lights were in a cradle on the floor [20] and they were very strong. After they had been set up, one of the persons, described by the Plaintiff as “Lupo”, [21] decided to take the ladder and one of the lights to work at the back of the bank. [22] Subsequently, he stated that two other workers decided to go in that section as well and they “took the light with them, or turned it away from use and just left us, you know, in a – a really bad lit section of – of the bank.” [23] He explained that the light was totally opposite the direction he was working. [24]
17. T 25.47.
18. T 26.01-.05.
19. T 26.14-.15.
20. T 26.27.
21. T 26.38.
22. T 26.42.
23. T 26.45-.47.
24. T 27.02.
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In cross examination, the Plaintiff maintained that on the Friday 10 May 2013 there was full lighting [25] but on 13 May 2013, after the electricians had disconnected the power and the two working lights were brought in, they were moved. [26]
25. T 52.15-53.10.
26. T 56.11-.14.
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The Plaintiff said that he was then directed by Mr Young to start stripping out the panels and the back straps. He described the lighting as “very, very bad”, [27] and said he told Mr Young that it was not safe and that more light was required. He said that Mr Young responded with, “Mate, if you don’t want to get up there and do it, walk”. [28] In the circumstances, the Plaintiff said that he had no choice and needed the money, [29] so he continued with the work.
27. T 27.34.
28. T 27.41.
29. T 27.45.
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Whilst it was put to the Plaintiff that Mr Young did not tell him to do the work or get off the site, he reiterated that he did. [30]
30. T 56.16-.22.
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The Plaintiff said that he and a co-worker, Martin, (who he described as the Scottish fellow [31] ) got up there and started pulling down panels. [32] The Plaintiff described that he was working where the tellers would have sat. [33] At that point, he said he couldn’t see where he placed his feet, [34] and that the counter was covered in residue from the broken ceiling panels. [35]
31. T 27.48.
32. T 27.48-28.4
33. T 28.02-.04.
34. T 28.07.
35. T 28.10.
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In describing the accident, the Plaintiff stated:
Well, I had one of the strips. If you - if you look at the strip running along the ceiling I had - I'd had it hanging over me shoulder and I was pulling the panels out and - and Martin was behind me and as I went to heave on it I just went. Now, whether it was because he - he had also had hold off it, he grabbed at the same time and I just went off it, I lost me footing. [36]
36. T 28.23-.27.
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The Plaintiff said that when he lost his footing he couldn’t see where he was placing his feet. Consequently, he fell sideways, head first, into the concrete on the left side of his head. [37] He described his right leg as flying out and he hit the edge of the bar where the teller would have sat, causing him to sustain a cut. He threw his right hand out as well, but did not know what happened and was “blanked out for a bit”. [38] He stated that Martin then jumped down and grabbed hold of him. [39] Martin then pulled him up before he had realised what had happened, and he described as feeling not happy, dazed, a bit angry, and was trying to get his eyes back into focus. [40]
37. T 28.34-.38.
38. T 28.50-29.02.
39. T 29.06.
40. T 29.15-.17.
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The Plaintiff then said that Martin yelled out and one of the other workers brought the light back around. [41] He then noticed that his “army pants” had been cut and it went through the bone, and he realised that he was bleeding. He noted that he, “wasn’t feeling real good in the head anyway”. [42] He stated that he asked for a first aid box, but he was told that there wasn’t one, so he went to his bag and got a hand towel and wrapped it around his leg. [43]
41. T 29.20-.26.
42. T 29.34-.37.
43. T 29.43-.48.
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In cross examination the Plaintiff stated that he couldn’t remember whether he did or did not give an account of falling sideways to any doctor that he had seen, or to any other person who he had given an account prior to giving evidence before me. [44] He stated that if it wasn’t recorded in doctors’ notes, he didn’t know why. [45] The Plaintiff’s attention was drawn to a statement he prepared on 11 November 2016, [46] where he is recorded as stating:
“My co-worker did not communicate to me that he had been working on the panel, and on removal of the panel by him I lost my footing, subsequently hitting my knee on the counter and falling head first on the concrete floor.”
44. T 56.47-57.04.
45. T 57.09-.10.
46. Exhibit 1D1, p 31.
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He stated in evidence that he could not remember if that was a truthful and accurate account of his fall. [47] He stated he did not know of any reason why he would’ve given an untruthful statement or an inaccurate account. [48] He conceded that in the paragraph he did not give any history about falling sideways. [49] He reiterated that he fell head first onto the concrete floor. [50] It was put to him that there was no history of falling sideways, as he had recounted in evidence in chief. He responded that he had fallen down from a distance and head first. [51] He accepted that the distance was about 1.25 metres [52] and although he had put his right hand out during the fall, his fall was not broken. [53] He accepted that the account he had given before the Court was that the first thing that made contact with the concrete floor was his head, [54] adding that’s all he could recollect because he had “a period of blackness” when he got up. He stated that he could not recall whether he lost consciousness. [55] He recalled telling some people about the blackout, but he couldn’t recall whether he had told other people whether he had a loss of consciousness. [56] When further questioned about the matter, the Plaintiff stated:
I didn't say I blacked out. I said I had a period of - when - when Martin pulled me up, I - I remember falling, and I remember him pulling me up. I know when I went down, I went at a 45 degree angle, I went that way. My head slammed into the concrete, my leg slammed into the edge of the counter, and I had one hand out. Now, from the time that I was getting pulled up, I don't remember in between that. So whatever is - is - is there is because I can't remember. So I assumed I blacked out. That's why I said I blacked out. [57]
47. T 57.23.
48. T 58.27-.29.
49. T 58.31-.33.
50. T 58.35-59.02.
51. T 59.06-.07.
52. T 59.11.
53. T 59.16-.31.
54. T 59.50-60.02.
55. T 60.24.
56. T 60.14-.16.
57. T 60.44-.50.
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The Plaintiff accepted that he had a conversation with Mr Young shortly after the accident. [58] When it was suggested to him that he said to Mr Young that he stepped back off the bench and fell and grazed his shin, the Plaintiff stated that he did not recall saying that to him at all and that he couldn’t remember. [59] When it was suggested to the Plaintiff that he had in fact had a conversation with Mr Young where he explained that what had happened was that he had landed on his feet, he rejected this. [60] He further did not recall saying to Mr Young that the graze on his shin was the only injury that he sustained, [61] and didn’t know whether it was possible that he said such a thing. [62] He rejected the proposition that the graze on his shin was his only injury and at the time there was no blood. [63] He reiterated that he did not ask to go home, but all workers were told to go home. [64]
58. T 62.30.
59. T 62.32-.40.
60. T 62.44.
61. T 62.06-.47.
62. T 62.50.
63. T 63.01-.08.
64. T 63.12-.18.
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It was put to the Plaintiff that he did not tell Mr Young the history about falling and striking his head. He stated:
Tom was there, he saw - he saw the way I was and whatever conversation I had with him there and then - so he - he was aware of the fact that I'd went head down into the concrete. He was aware of the fact that I was bleeding from the cut, and that's why he has told everybody to pack and we'll leave early, which we did. [65]
65. T 63.23-.27.
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It was put to the Plaintiff that Mr Young was not present when the fall occurred. The Plaintiff maintained that he was. The Plaintiff stated that he could not remember telling Mr Young any history of having any back or neck pain. [66] The Plaintiff stated that the time of the fall was at about 2:15-2:20pm in the afternoon. [67]
66. T 63.29-.40.
67. T 64.22-.29.
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During cross examination it was also put to the Plaintiff that he had knowledge of work, health and safety requirements. [68] The Plaintiff reiterated that whilst he didn’t feel comfortable working on the bench top, he had no choice. [69] When it was suggested to him that he did in fact have a choice, he rejected this and said “There's not when you got to put bread and butter in your mouth.” [70] It was put to him that there are alternatives to employment, such as social security. [71] He accepted that he was aware of this. [72]
68. T 194.03-.25.
69. T 104.43-.47.
70. T 105.03.
71. T 105.05-.10.
72. T 105.13.
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It was also put to him that if he felt sufficiently aggrieved by what he had been directed to do, he could go back to the recruitment people and say “look that’s a dangerous job I’m not going to do it. Can you give me something else?” The Plaintiff responded that he was on the job. [73] He stated that everybody knew it was unsafe but they continued to do it. [74]
73. T 105.16-.20.
74. T 105.23.
Thomas Young
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Thomas Young gave evidence in the First Defendant’s case. He accepted that he worked for the First Defendant on 13 May 2013 as a site foreman, stating that he had a memory of working for the company for around 12 months at that point. [75] He stated that he had a vague recollection of working at the ANZ Bank. [76] He said that he did not have a 100% recollection of what the lighting was like on the site that day. [77] However, his best recollection was that “the lighting would have been off at - but there's still the safety lighting, so it would have been dull, but not as bright as what we have here.” [78]
75. T 115.21-.31
76. T 115.35.
77. T 115.50.
78. T 116.02-.05.
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Mr Young accepted that on the 13 May 2013 an electrician had disconnected the electricity and stated that it would have happened prior to commencing work that day. [79] He said that in those circumstances, temporary lighting would have been provided. [80] He described this as “just plug into a power point floodlight”. [81] Whilst he recalled there were ladders on the site, he didn’t recall how many. [82]
79. T 116.24-.25.
80. T 116.32.
81. T 116.40.
82. T 116.46.
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Mr Young recalled that the nature of the work that the Plaintiff was required to do was to de-fit a shop, which was demolition work. [83] He described the premises as an old bank where there were desks, walls and everything that you would see in a bank. He did not recall whether there was toolbox talk, or what instructions he had given to the Plaintiff in relation to the work. [84] He stated that he had forgotten about everything until he read a statutory declaration when the case was brought to his attention. [85]
83. T 117.10.
84. T 117.25-31.
85. T 117.35-.36.
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Mr Young’s attention was taken to a register of injury form dated 14 May 2013. He accepted that he completed it. [86] He stated that the description of the incident in that form was not based on something he had actually observed. [87] He said that it was based on what he was told by the Plaintiff upon his entrance back onto the job site. [88] Prior to him coming back in, Mr Young said he was helping an electrician take his tools to the van and he could not remember how long he was absent from the site. [89] From memory he recalled being told by the Plaintiff that he stepped back off the bench and grazed his shin as he landed on the ground. [90] As far as Mr Young was aware, the Plaintiff had landed on his feet. [91] Mr Young reiterated that no one else told him about the accident, [92] and he stated that the note that he had prepared was truthful and accurate. [93]
86. Exhibit 1D1, p 28; T 117.50-118.15.
87. T 118.25-.30.
88. T 118.33-.41.
89. T 118.45.49.
90. T 119-.03-.04.
91. T 119.06-.10.
92. T 119.22-.23.
93. T 119.27.
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Mr Young gave evidence that sometime after the accident he was contacted by his “superiors” and asked to complete a statutory declaration. [94] That statutory declaration dated 10 September 2013 read as follows:
“At the time of the injury Wayne Chaffey was pulling down gyprock whilst standing on two bench tops. I was not in the room while it happened but when I came back in, Wayne informed me that he stepped back off the bench and fell and grazed his shin. Wayne told me he landed on his feet and that the graze on his shin was his only injury. When he showed me the graze there was no sign of blood or did not look like he needed stitches. I offered Wayne first aid assistance but he refused it and just asked to go home early and rest his shin, which I allowed him to do.”
94. T 119.29-.43.
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Mr Young stated that he didn’t recall seeing blood and didn’t remember if he looked at any other part of the Plaintiff’s leg. [95] In particular, he didn’t recall looking at his socks or his boots.
95. T 120.11-.27.
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In cross examination, Mr Young stated that prior to work on that day he had supervised at other sites. [96] He accepted that so far as the site was concerned on that day, it was under his control. [97] He stated that when persons such as the Plaintiff came onto the site, they were allocated tasks. He could not remember if there was in fact a toolbox meeting on13 May 2013, but accepted that it was the usual practice to have one. [98]
96. T 121.40-.42.
97. T 121.48-.50.
98. T 122.17-.27.
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Mr Young stated that he could not recall whether he had done an occupational health and safety procedures course prior to the accident, and that it was not necessary for him to have done so in order to qualify as a foreman or supervisor. [99] He stated that he believed that height regulations required the provision of barriers at 1.5 or so metres. When it was put to him that it might be as low as 1 metre, he stated that he didn’t think so from memory. [100]
99. T 123.20-.28.
100. T 123.30-124.01.
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Mr Young stated that he was not aware of tools that could take down ceiling tiles whilst a person was standing on the floor. [101] He said that his recollection was that ladders, lights and basic hand tools (probably some shovels and wheelbarrows) were provided. [102] He couldn’t remember how many work lights were provided, but described these as standing a metre from the floor with a stand in the middle, branching off so that there were two lights either side. [103] The lights were described as 50cm in length. [104] Whilst he could not recall how many lights there were on the day of the accident, he accepted that without them it would have been pretty dark. [105] Mr Young explained that the lights were very bright and that you would need a couple to illuminate the work space, but if one of the lights was pointing away from the work area, then it would be quite dark. [106] He said on other worksites where de-fits were carried out, the ceiling tiles were removed on ladders, or if there was a stable desk, off the desk. [107] He stated that he wouldn’t have any hesitation in telling people to jump up on a desk if they were comfortable. [108] Mr Young accepted that he did not provide any railings on the desks to make sure people did not lose their balance. [109] He also stated that he did not clear the work area on the desk and if there was rubble, it was part of the employees job to clean it up. [110] He stated that he directed to do this and accepted that when a ceiling tile was pulled down, rubble was generated. [111] He further accepted that if someone was standing on a platform without guard rails, there was a possibility of miss-stepping on the rubble. [112] He accepted that there could be quite significant injuries, even if falling from a metre. [113]
101. T 124.06-.27.
102. T 124.21-.22.
103. T 124.36-.50.
104. T 125.04.
105. T 125.10.
106. T 125.16-.23.
107. T 125.25-.27.
108. T 125.42-.45.
109. T 126.11-.13.
110. T 126.15-.18.
111. T 126.20-.25.
112. T 126.23-.32.
113. T 126.34-.36.
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Mr Young stated that at the time of the accident, employees did not have access to a barrier and he did not think it was required. [114] He also accepted that it was probable that a trestle arrangement could have been put up, with scaffolding around it, [115] and that this would be a safer arrangement than standing on a bank teller desk. [116] He further accepted that if the light was pointing away from the workspace, then it would be unsafe to work on such a bank teller desk when pulling down a ceiling. [117]
114. T 126.42-.45.
115. T 126.47-.50.
116. T 127.03.
117. T 127.08.-.25.
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Mr Young stated that when he spoke with the Plaintiff he did not look at the counter top, as he was focused on what the Plaintiff was showing him. [118] He stated that from his recollection, the graze was on the front of the shin but he could not determine the exact position. [119] When he was asked what words the Plaintiff used to state that he had fallen on his feet, Mr Young stated that he can’t remember a conversation he had yesterday, let alone six years ago. [120] At the time he said that there were other workers still working probably pulling things down and making a racket. [121] He acknowledged that he could have misheard a lot, but rejected the suggestion that the Plaintiff fell off the bench and fell onto his head. [122]
118. T 127.46.
119. T 128.05-.09.
120. T 128.20-.24.
121. T 128.26-.30.
122. T 128.35-.40.
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In re-examination, Mr Young stated the he did not recall exactly that he had ever asked a worker if he or she was comfortable to jump off a ladder and work on a desk. [123]
123. T 130.42-.48.
Paul Horan
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The First Defendant called one of its directors, Paul Horan.
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Mr Horan gave evidence that in the course of his duties on 13 May 2013 he attended the subject site. [124] He stated that he was not on the site when the Plaintiff had his accident, but was there that day. [125] He had no recollection of the state of the premises at the time in question. [126] He did not recall the phone conversation with the Plaintiff in the period shortly after 13 May 2013, but believed that he did have one. [127]
124. T 131.34.
125. T 131.40-.44.
126. T 131.49-132.01.
127. T 132.08-.09.
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Mr Horan confirmed that he completed an incident report. [128] He stated that all references under “Time of the Injury” appeared to be his handwriting, but the top section was definitely not. [129] He reiterated that he did not observe the accident, [130] and therefore the comments that he had made in the report were based on things people had told him. [131] In the comments section of the incident report, Mr Horan recorded:
“I just left the site at the time of the incident and struggled to see how this occurred and there was no reason for Wayne to be on the counters.”
128. Exhibit 1D1 p 29.
129. T 133.-04-.05.
130. T 133.32.
131. T 133.35.
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Mr Horan confirmed that he also completed a statutory declaration. He said that he could not remember but he would say he was asked by MPM Recruitment Pty Ltd to do so. [132] In that document dated 10 September 2013 Mr Horan records;
At the time of the incident when Wayne Chaffey was injured I had already left the site. My manager on duty Thomas Young rang me to notify me Wayne had asked to go home because he had grazed his leg. Both Thomas and an External contractor said there was no blood and Wayne rejected the offer of first aid and he just wished to go home so he was allowed.
Wayne contacted me the following day and said that his GP said that he needed the day off but would be fine to return the following day. At no stage did he mention any other injury and the duties he was performing. I find it difficult to see how any other injury occur.” [133]
132. T 133.43-.45.
133. Exhibit 1D1, p 38.
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Mr Horan confirmed that putting aside the portion relating to the external contractor those statements were to his knowledge, truthful and accurate. [134] Mr Horan described the part of the statutory declaration recording what occurred as information that Mr Young would have told him. [135]
134. T 134.16.
135. T 134.28-.35.
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So far as having a conversation with Mr Horan on 14 or 15 May 2013, the Plaintiff’s evidence was that he may have spoken to Mr Horan but he could not remember. Specifically, he couldn’t recollect not mentioning anything about him falling on his head or having back or neck pain.
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Mr Horan also stated that he sent an email to Kirstie Collins, from MPM Recruitment Pty Ltd, on 18 June 2013 in which he acknowledges recording:
Thomas Young was MPM representative onsite when Wayne Chaffey reported he injured his leg. At the time of the incident, Thomas was assisting an electrical contractor Mark from M.E.S. Electrical with a heavy object so didn’t witness the accident first hand. Wayne did however go up to Tom and request he go home because he reported that he hurt his shin on the counter of the ANZ tenancy. Tom inspected his leg and has said that there was no blood. It appeared that it was just a bump, but Tom allowed him to leave and Wayne said he would be back the following day, cause he also said it wasn’t a problem. At no stage did he indicate any other issues or symptoms anywhere else in his body.
The following day Wayne rang me and wanted to discuss the incident and said that he had been to a doctor and said there was nothing serious he just needed to be off as well, but pressed the fact that it was not a serious injury and didn’t want to jeopardise his position as he needed to work and needed the money for personal issues. I assured Wayne that there was no issue and I’ll see him the following day at work. I never heard from Wayne again. He also never mentioned any other injuries or symptoms to me.” [136]
136. Exhibit 2D1, tab 7.
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Mr Horan confirmed that the first part of the email related to things that he had been told by Mr Young and the second part dealt with the telephone conversation that he had with the Plaintiff. [137] That aside, he said he had no recollection of the conversation. [138]
137. T 135.35-.41.
138. T 135.50-136.02.
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In cross examination by the Second Defendant, Mr Horan conceded that the work of MPM Maintenance Pty Ltd was essentially to strip office premises. He stated that permanent staff were employed because part of the business was plumbing. Labourers were provided through MPM Recruitment Pty Ltd and as far as he was concerned, worked under the direction of a supervisor. He stated that the site supervisor was the person who was in charge of the job and gave directions. [139] He stated that tools were located in site boxes which were moved from job to job, [140] and that tools would have been there before the Plaintiff started work. [141]
139. T 136.50.
140. T 137.21-.22.
141. T 137.26.
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In cross examination Mr Horan accepted that it was unsafe to work from a counter. [142] He stated that as a director, he would never condone the use of a counter in substitute for a ladder or some other suitable workplace appliance. [143] Mr Horan accepted, based on the phone call that he had with the Plaintiff, that the Plaintiff was motivated to keep the job. [144] He stated he could not recall the content of the conversation, but he stood by what he had written in his email. [145]
Aftermath of Accident
142. T 138.36-.45.
143. T 138.47-.49.
144. T 139.31-.33.
145. T 139.38-.44.
Ceasing Work
-
The Plaintiff stated that he was not offered first aid because there was no first aid kit there. He said that he noticed that his shin was bleeding and the quantity of blood filled his boot up. He said the blood was not gushing, but it was bleeding and you could see the bone. He said it was going into his socks and getting into his boots. When it was put to him that there was no blood on the wound on his right shin, he rejected this and said that this was totally incorrect.
-
The Plaintiff stated that following his fall he asked Mr Young to organise to get him to Liverpool Hospital, but Mr Young refused and told him, “Mate, you know, you’ll be right. Get on the train, it’s just around the corner”. [146] He stated that Mr Young then told everybody to go home for the day. [147] The Plaintiff explained that he then got on a train and later presented at Liverpool Hospital Emergency Department.
146. T 30.04-09.
147. T 30.10.
-
In cross examination it was put to the Plaintiff that following the accident, he told Mr Young that he would leave the site and take himself to Liverpool Hospital. The Plaintiff rejected this. [148]
148. T 62.11-.13.
-
Mr Young stated that he did not refuse to take the Plaintiff to the hospital and did offer him first aid, however the Plaintiff declined and stated that he just wanted to go home. [149] He stated that work on the site continued that day. [150]
149. T 120.29-121.02.
150. T 121.04-.09.
-
He stated that he couldn’t remember if there was a first aid box, but from memory it was probably near the door to the site. [151] When pressed, he said that he could not recall. [152]
151. T 129.05-.19.
152. T 129.23.
-
Mr Young accepted that he stated for the first time in his statutory declaration, some 4 months after the accident, that the Plaintiff asked to go home early. [153] He stated that he did not recall everybody going home early on that day. [154] He said that it could not have happened as there was no need. [155] However, he accepted that it was within his power to make such a direction. [156]
153. T 129.25-.39.
154. T 129.40-.44.
155. T 129.47-.50.
156. T 130.04.
Liverpool Hospital
-
The Plaintiff stated that when he got to Liverpool Hospital he had a massive headache and the initial lacerate to his leg was kicking in and he wasn’t feeling very good overall. [157] He said that he had to wait for triage, [158] and when he was seen, he was told his wound couldn’t be stitched as it had gone cold and there wasn’t much that could be done. [159] He stated that a nurse looked at his head and said that he would have to go and see his doctor in the morning. [160] The nurse then wrapped a bandage around him and gave him one for the following day. [161]
157. T 30.21-.24.
158. T 30.31.
159. T 30.35-.39.
160. T 30.41-.42.
161. T 31.01-.04.
-
In cross examination, the Plaintiff stated that he recalled being seen by two persons at the hospital. [162] He said that he saw a triage nurse and was told to sit and wait, and was told that he would need stitching. He stated that she also looked at the lump on his head. The Plaintiff accepted that he possibly saw the triage at around 4:50pm. [163] He rejected the suggestion that he told her that he had a laceration or cut to the right leg after falling. [164] He accepted that at that time it may not have been bleeding. [165] He rejected the suggestion that he did not tell the triage anything about having a massive headache, saying that she had a look at the lump on his head. [166] Later however, he stated, “She had a look at me head. She didn't look at it because she - she liked my hair.” [167] He stated that he then told the nurse about his headache. [168] When it was put to him that he gave no history to the triage nurse of any headache, he stated that he honestly could not remember. [169] He also said that he had no memory as to whether he told the nurse about the history of back or neck pain. [170]
162. T 65.17-.25.
163. T 65.42-.47.
164. T 65.49-66.01.
165. T 66.03-.07.
166. T 66.09-.11.
167. T 66.36-.39.
168. T 66.13-.20.
169. T 67.06-.08.
170. T 67.14-.19.
-
The Plaintiff rejected the suggestion that he did not see anyone at the hospital at the time. [171]
171. T 67.39-.48.
Shannon Naidu
-
The triage nurse, Shannon Naidu, was called by the First Defendant. Her evidence was that she worked full time as a registered nurse in the emergency department between 2008 and May of 2013. She stated that as a triage nurse, it was usual practice to make entries into triage notes which she followed and she had no reason on 13 May 2013 to not follow that practice. [172] She accepted that triage was something they do as part of their normal duties. [173] Ms Naidu stated that when given a history by a patient about what brought them to the emergency department, she would record, “Their main - their main presentation, as to why they are present in the emergency department. Their main concern.” [174] She accepted that if the Plaintiff had told her that he had fallen from a height and hit his head, such that he had a look at a lump on his head, her practice would have been to record that information, either about the lump or the fall. [175] She also noted that if she had been told the Plaintiff had a massive headache, then she would also record that. [176] Furthermore, if she had been told that he had fallen from a height and struck his head on a concrete floor, then her usual practice would have been a note to make a note about that detail. [177]
172. T 167.44-168.20.
173. T 168.35-.37.
174. T 165.18-.19.
175. T 168.43-.49.
176. T 169.19-.24.
177. T 169.26-.33.
-
Ms Naidu went on to explain that after a patient was triaged then they would be cared for by the waiting room nurse and that person would be making their own documentation. [178]
178. T 170.15.
-
In cross examination, Ms Naidu conceded that she would not make a note if there was no active bleeding, notwithstanding if blood may have gone into a patient’s socks or boots. [179] She stated that if it was several hours after the incident in which a patient went to the hospital, she wouldn’t be surprised to find that there was no active bleeding. [180] Ms Naidu also accepted that if the patient had presented with a complaint of a lump to the head after falling and hitting his head, but appeared to be unaffected, then she would leave that to the waiting room nurse and would not necessarily record it unless it was relevant to the triage at the time. [181]
179. T 171.11-.19.
180. T 171.25-.28.
181. T 171.49-172.29.
Consultations with Dr Andrew Robertson
-
The Plaintiff stated that the day after the accident he was at home and could not get out of bed. [182] He stated that he was suffering from pain and discomfort in the head, neck, back, arms, shoulders, and right leg. [183] He stated that apart from the pain killers which he was given by the hospital, he resorted to alcohol. [184] He said that he was informed by Dr Andrew Robertson that he was in intern and that he could not refer him for X-Rays or prescribe anything until the resident doctor was back. [185] The Plaintiff stated that at the time he spoke to Dr Andrew Robertson, he was still affected by alcohol. [186] He said he was told by the doctor to buy pain killers from the chemist and that he couldn’t prescribe anything because he wasn’t qualified to. [187]
182. T 34.09-.14.
183. T 34.16-.21.
184. T 34.23-.25.
185. T 35.01-.05.
186. T 35.07-.11.
187. T 35.10-.22.
-
The clinical notes of Dr Andrew Robertson were tendered. [188] For the consultation on 15/05/2013, they record:
188. Exhibit A.
Fell off a ladder and sustained a laceration to his right shin.
Initially seen at LDH ED. Wound was bandaged and he was sent home. Has not brought in DC summary.
Today has come to seek treatment.
He is obviously intoxicated by alcohol and tells me he has been drinking all morning.
Examination
Wound is approximately 3cm long, serous fluid discharge. No obvious erythema surrounding it. No pus discharging. Minimal signs of infection.
IMPRESSION
Shin wound
…
-
The following day on 16 May 2013, Dr Robertson recorded:
Wound has scabbed over well. No signs of infection. He has not yet filled the script for antibiotics. I stressed the importance of taking them
His dressing apparently fell off. I have replaced it.
Workcover cert completed.
Apparently was on a work bench doing demolition work. He slipped while trying to pull something down and cut his leg.
Is living in a boarding house in Liverpool. He tells me he has no money. His wife is over in Thailand having some kind of operation to remove a tumour that was ? growing in her spine.
IMPRESSION
Laceration – work related
Healing well
…
-
It is not in issue that on both 15 and 16 May 2013 there was no recorded mention of injury to any other part of the Plaintiff’s body, apart from his right leg.
-
The Plaintiff was cross examined about his consultation on 15 May 2013 and it was put to him that Dr Andrew Robertson did have authority to prescribe medications and prescribed Cephalexin. The Plaintiff responded that he did not recall that, but Dr Andrew Robertson possibly could have done so. [189] It was put to the Plaintiff that he did not say anything in the consultation about falling on his head or a lump on his head and he said that he couldn’t recall. [190] It was also put to him that he did not have any neck or back pain and the Plaintiff stated that he did not recall. [191] The Plaintiff did not agree that he did not have a lump on his head from the accident and that he did not have neck and back pain. [192]
189. T 69.35-.37.
190. T 69.44-.70.16.
191. T 70.18-.19.
192. T 70.21-.27.
-
In cross examination the Plaintiff could not recall the details of the consultation with Dr Andrew Robertson on 16 May 2013. [193] It was put to the Plaintiff that when he saw Mr Andrew Robertson he knew that he did not fall on his head, did not have a lump on his head, and did not suffer from any neck or back pain due to the accident. The Plaintiff responded that he did not recall. [194] The Plaintiff insisted that he was telling the court what he could remember, but he can’t remember half the conversations that he had yesterday. [195]
193. T 70.29-.49.
194. T 71.01-.04.
195. T 72.34-.37.
-
The Plaintiff was given a Work Cover certificate from 16 May 2013 to 21 May 2013. [196] In the certificate, it is recorded:
Was on a work bench doing demolition work. Slip. Fell. Cut his leg.
196. Exhibit 2D1, tab 3.
-
In his evidence, the Plaintiff explained that he then returned to work and was given the job of cleaning the elevated work platforms and keeping the premises clean. He stated that, “I wasn’t doing too good with it, because I had to – even with an elevated platform is in sitting position, not in elevated position. You have to climb up through it to get into it.” [197] He said that his neck and his back prevented him from doing the work properly and that his leg was still bandaged. [198]
197. T 35.40-.47.
198. T 36.03-.05.
Claim Form
-
The Plaintiff accepted that he had completed a claim form on 17 May 2013, in which he stated that he had injured his right shin and described his injury as “lower right shin front on bone”, and described what happened and how he was injured as, “fell onto edge of counter”. The Plaintiff stated that he did not record anything about his headaches, back or neck pain because he “took it like a punch”. [199] The Plaintiff stated that he didn’t know why he didn’t include more details in the claim form as he couldn’t recollect and when pressed stated, “I was basically told just to put down the injury that was evident at the time, which was on my right leg.” [200] He accepted however, that he completed the form and signed it. [201] Later he stated:
… At the time, when I recorded what I did on the document, I wrote it in very quickly, and at that time, I did not believe that the lump on the head and the rest of the aches and pains were going to be relevant later on in my life. That's why I didn't put them in. And I was told to basically - I actually led to write - I was told to write in the evident injury to my right leg, which I did. [202]
199. T 74.01.
200. T 74.26-.27.
201. T 74.34-.41.
202. T 75.19-.24.
-
The Plaintiff stated that he continued to see Dr Andrew Robertson and followed his instructions to take painkillers. He saw Dr Robertson on 21 May 2013 and he recorded:
The wound is healing well.
No signs of infection.
Will continue POAB.
Diagnosis:
Laceration
Counselling
Actions:
Letter printed.
Prescription printed: Cephalexin 500mg Capsule 1 four times a day
-
In the course of his notes, Dr Robertson recorded that the Plaintiff said to him “well I’m not drunk today” and told him that he had done hard labour his whole life and now his body is failing. It was recorded that the Plaintiff stated that he was drinking a lot and he knew that it caused him to get depressed.
-
The Plaintiff in cross examination by the First Defendant stated that he could not recall what he said in the consultation on 21 May 2013. [203] He accepted at one point that he would have said something, but he couldn’t remember what the conversation was about and what he said to Dr Robertson. [204] However, he stated that if he was truthfully feeling pain in his back or neck he would have told him, but he could not recollect. [205]
203. T 75.42-77.36.
204. T 77.20.
205. T 77.26-.28.
-
On 28 May 2013, the Plaintiff again saw Dr Andrew Robertson. In his notes, Dr Andrew Robertson recorded that the wound was healing well but it was still causing the Plaintiff a bit of pain when he touches it. He noted no signs of infection and that the scab was reducing in size. He also recorded that the Plaintiff was having issues with the employer over the claim. Dr Andrew Robertson noted that the Plaintiff should not be doing further demolition work until the wound fully healed due to the risk of further injury to that area. He recorded that the Plaintiff had been doing light duties the previous week for 10 hours.
-
The Plaintiff asserted in his evidence that on both 21 May 2013 and 28 May 2013, he complained about his neck and his back [206] although, he stated that the focus of those visits were on his leg. The Plaintiff could not provide a reason as to why this was not recorded. [207] He stated that he had, had “bigger knocks” in his life than what occurred in the subject accident, [208] and he thought it would just dissipate and go away.
206. T 36.30-.32.
207. T 36.26-.28.
208. T 36.46-.47.
-
On 5 June 2013, the Plaintiff again visited Dr Andrew Robertson, in respect of which Dr Andrew Robertson recorded:
Laceration to the right leg is still not well healed.
He went to see a lawyer yesterday. He has told him to raise some new issues with me and Wayne is telling me that the lawyer is requesting scans.
Wayne tells me that since the accident he has been having neck pain. Neck pain is worse on the right side. Worse with movement.
No radiation. No upper limb neurology.
Lumbar back pain is also worse on the right. Describes radiating pain originating from his laceration which travels up the side of his thigh.
No problems with his gait. No bowel or bladder problems.
…
IMPRESSION
Neurological findings are inconsistent and I am suspicious.
Ongoing pain around the laceration. It is otherwise healing well. No signs of infection.
PLAN
Because this is workcover and issues may come into dispute I have decided to thoroughly image the areas in question. I have explained this to the patient. Again should not be working in demolition until the laceration has healed.
Needs to be reviewed next Thursday with JR
-
In a certificate completed by Dr Andrew Robertson dated “4 June 2013,” it states:
“Has started complaining of neck and lumbar spine pain (05 June) which he tells me are related to the fall. Have requested CT imaging to clarify the cause of the symptoms.”
-
The Plaintiff said that at this time he continued to perform light duties and that he went in and was later sent home as there was nothing for him to do. He stated that some alternative work was provided in the form of shredding papers. [209] Notwithstanding the notations in Dr Andrew Robertson’s notes, the Plaintiff stated that he was never referred to do X-Rays by him because Dr Andrew Robertson was not qualified to do so. [210]
209. T 37.40-.47.
210. T 38.10-.12.
-
The Plaintiff could also not recall the consultations he had with Dr Andrew Robertson on 5 and 28 June 2013. He stated that he does recollect being advised by MPM Recruitment Pty Ltd to seek legal advice at one point. [211] He stated that he did not recall telling Dr Andrew Robertson that his lawyer has requested some scans, although he may have, he may not have, he just could not recall. [212] He said that he had previously told Dr Andrew Robertson about his neck pain. [213] When it was suggested to him that it was the first occasion that he so told Dr Andrew Robertson, he stated that he did not know because when he saw him on the 15th of May 2013 he had a lot to say and could not recall everything that he had said to him. [214]
211. T 78.23-.26.
212. T 79.01-.10.
213. T 79.17.
214. T 79.25-.26.
-
In oral evidence Dr Andrew Robertson stated that he did not recall anything about the consultations with the Plaintiff other than what was recorded in the notes. [215] He confirmed that at the time that he was working at the medical practice, he had the authority to prescribe medication. [216] He stated that he did not believe he had any restrictions imposed on his practice whilst working as a GP registrar, but it was his practice to tell persons that he was a training GP. [217] He stated that at the time, he wrote the notes himself on a computer and would type as a patient would talk. [218]
215. T 150.23.
216. T 150.36-.39.
217. T 155.18-.24.
218. T 155.26-.32.
-
Dr Andrew Robertson stated that his usual practice from the time he worked at Gosford Hospital was to make notes of his consultations, and when he began at the Liverpool Practice in January 2013 he was advised that he needed to take notes. [219] He said that he followed that practice from the time that he started there. [220] He stated that the notes were not transcripts, but he described himself as having taken thorough notes. [221] He said that had he been given a history that the Plaintiff fell on his head onto a concrete floor from a height above a metre, his usual practice would have been to make a note of that, [222] and he could not think of a reason why he would not. [223] He further stated that on the assumption of being told that the patient had a headache and neck pain, he would do an examination following that complaint, [224] and might order further testing or make a management plan. [225] He stated that there was no reason why on 16 May 2013 he would not have followed his usual practice. [226]
219. T 147.31-44.
220. T 147.46-.48.
221. T 148.03-.05.
222. T 148.17-.22 and T 149.12-.26.
223. T 148.24-.25.
224. T 148.48-.149.01.
225. T 149.07-.10 and T 149.12-.26.
226. T 149.12.-15.
-
Again in relation to the consultation on 21 May 2013, Dr Andrew Robertson said there was nothing different about his usual practice. [227] He stated that he did not know how to respond to the statement given by the Plaintiff that he had “done hard labour his whole life and now his whole body is failing him”, describing this as a quote. [228] Dr Robertson confirmed that following seeing the Plaintiff on 05 June 2013 he made a note of his impression and had authority to request further imaging. [229]
227. T 150.08-.11.
228. T 150.21-.27.
229. T 151.38-152.01.
-
Dr Andrew Robertson had no recollection of the Plaintiff stating that he had a lump on his head. [230] He stated that if he had done so, he would have written that down and follow it up with some questions and examine the lump. [231] He stated that there was a standard protocol for assessing persons who had a head injury and in May 2013 he would have followed that protocol. [232]
230. T 152.03-.06.
231. T 152.07-.39.
232. T 152.31-.33.
-
In cross examination, Dr Robertson acknowledged that persons who are intoxicated can give confused accounts and in such circumstances he would be doing his best to obtain whatever history he could about the patient, bearing in mind the intoxication. [233] He stated that he could not remember if, in passing, the Plaintiff mentioned other matters other than those about the laceration to his leg. [234] He confirmed that the consultation notes are not transcripts, but summaries of what he deemed to be the relevant points and accepted that when counselling, not much is written down of what was said as it is essentially counselling. [235] He stated that if the patient had told him about other parts of his body that were failing, he would have made a note about it. [236] He accepted however, that when the Plaintiff told him that his body was failing, he did not write anything specific down. [237] Dr Robertson confirmed that the history he recorded was in accordance with his usual practice [238] Although he confirmed that the Plaintiff was intoxicated he said that the information recorded was the best information that he could get out of him being that he “fell of a ladder and sustained a laceration to the right shin. [239]
233. T 153.20-.33.
234. T 153.35-.40.
235. T 156.01-.04.
236. T 157.27-.31.
237. T 157.15-.19.
238. T 158.29-.159.11.
239. T 158.25-159.02.
Phillip Docherty
-
The Second Defendant called Phillip Docherty. At the relevant time he was an employee of MPM Recruitment Pty Ltd. [240] He gave evidence that he was an engineer tradesperson, aware of the requirements of engineering type businesses and the employment of labourers generally. He stated that generally, advertisements would be put out inviting people to apply for a position. They would then be interviewed and assessed and engaged following reference checks if found suitable. [241] The employment capacity of a person would then be matched according to their skill and training. Prior to supplying labour, he stated that a site would be visited and a site assessment conducted. [242] After a person had been allocated to a site, they would be followed up by MPM Recruitment Pty Ltd to see how the work was being carried out. [243]
240. T 175.05-.20.
241. T 175.32-.38.
242. T 175.44—176.01.
243. T 176.03-.06.
-
Mr Docherty gave evidence that the First Defendant did fit out work, plumbing work and “general” types of work. [244] MPM Recruitment Pty Ltd supplied labour to the First Defendant and other employers. [245] The First Defendant would contact MPM Recruitment Pty Ltd and thereafter MPM Recruitment Pty Ltd would consult whether there was anybody to fulfil the tasks required. [246]
244. T 176.11-.19.
245. T 176.25-.27.
246. T 176.37-.39.
-
Mr Docherty stated that before 2013 he knew Thomas Young and Paul Horan. [247] He visited sites where both of them had been working and was satisfied with their degree of skill.
247. T 176.47-177.01.
-
Mr Docherty accepted that prior to 03 May 2013, he had been to the ANZ Bank at Pitt Street where the Plaintiff had been sent as a labourer. In the course of doing so he completed a site assessment. [248] He accepted that he completed a document which recorded the site assessment details as follows:
8 labourers, 2 electricians + plumber. Decommission of ANZ office. Take all ceiling tiles, floor coverings + teller’s desk. Roller door + safety glass to skip bin. [249]
248. Exhibit1 DA p 27; T 177.13-.29.
249. Exhibit 1D1 p 27.
-
He further accepted that the document identified the machinery and tools used on site, including “all general hand tools. Hammer mallet. Hand held. Battery drive jack hammer. Shovel and broom”. [250]
250. Exhibit 1D1 p 7; T 176.18-.22.
-
Whilst completing the assessment, Mr Docherty stated that there was someone from the First Defendant present. [251] Mr Docherty stated that the tools were to be supplied to workers on site and that personal protection equipment in the form of face masks would be provided by the client. [252]
251. T 178.23-.26.
252. T 178.38-.39.
-
Mr Docherty described it as normal practice that he attend the site from time to time to check up. [253] He stated that he was not there when the Plaintiff suffered his injury on 13 May 2013. [254] He was satisfied that Mr Young, was a competent supervisor with a knowledge of occupational health and safety requirements. He was not aware of Mr Young ever engaging in unsafe work practices. [255] He said he was confident that any person whom he supplied to a particular job supervised by Mr Young would be adequately looked after. He accepted that Mr Young engaged in tool box meetings and as site supervisor he had total control of the site. [256] He stated that he was satisfied that the Plaintiff would have been adequately instructed of the duties that he was required to do, and would have been given appropriate equipment to do whatever job was required by the host employer. [257]
253. T 178.41-.44.
254. T 179.03-.08.
255. T 179.10-.24.
256. T 179.30-.50.
257. T 180.01-.11.
-
In cross-examination, Mr Docherty stated that he spoke to the Plaintiff after the accident in the office and he filled out an incident report form. He recalled him saying that he would be back starting work tomorrow because he had a cut to his thigh or shin and he had no reason that he wouldn’t be returning the following day. [258] Mr Docherty explained that the account that was given was that the Plaintiff had fallen off a bench and scratched his leg. He asked if he could see the leg and see the problem. He noticed it had a bandage. [259] He stated that he asked Mr Chaffey about the incident and he wrote down on his work statement that he had fallen off a bench and cut his leg. [260] Mr Docherty stated that the Plaintiff did not mention anything about falling onto his head. [261] He stated that as an employee he was satisfied with the Plaintiff’s performance. [262]
258. T 180.02-.16.
259. T 182.18-.21.
260. T 182.23-.27.
261. T 182.32-.33.
262. T 182.35-.45.
-
Mr Docherty accepted that the reason why he attended sites to make assessments was because he knew that it was his obligation as an employer to do the best he could to make sure that he was not sending employees to places where they would be exposed to unsafe work practices. [263] He further accepted that in the site assessment document, it recorded that he would be attending the site on a daily/nightly basis. [264] He stated that he attended the site between 2-3 times per week. [265] He did not accept that in order to discharge his obligations it was necessary for him to go every day. [266] He stated that he had supervisors on site who would manage the site, and he would go down to the site to visit and make sure things are going ok. [267] He explained that the supervisors on the site were not his employees. Notwithstanding this, he did not accept that he needed to go to the site to check that it was safe every day that there was work. [268] He said that he could not have persons working on the site if he thought it was unsafe, but he did not want to completely take over the management of the site. [269] He accepted that there was nothing in writing to confirm that he visited the site after the Plaintiff started work. [270] Nevertheless, he confirmed that he visited the site “many times’. [271]
263. T 183.24-.28.
264. T 184.08-.15; Exhibit 2D1, p 4.
265. T 184.17-.19.
266. T 184.21-.24.
267. T 185.33-.38.
268. T 185.07-.11.
269. T 185.13-.21.
270. T 185.23-.35.
271. T 185.37-.43.
-
Mr Docherty accepted that in his statement of 14 February 2018 he did not state that he actually attended the site on any occasion when the Plaintiff was present. [272] In that statement, Mr Docherty states:
I attended the site on a few occasions to check the job in general or check the job site to ensure safety for the MPM Recruitment staff. There was day and night shifts working on the site. [273]
272. T 186.22-.47.
273. Exhibit 2D1, tab 6.
-
Mr Docherty did not accept that it would be relevant to whether the work would be performed safely if there were fewer workers provided than were identified in his assessment. [274] He stated that he knew that part of the job involved working on ceiling tiles, that there were teller’s desks, and that the ceiling tiles were above the desks. [275]
274. T 188.04-.07.
275. T 188.09-.17.
-
When asked about whether he turned his mind to the work method that was going to be used by his employees in removing the ceiling tiles, he asserted that he did make an enquiry. The transcript records:
Q. Did you ever make any inquiry about what the method of work was going to be when it came to your employees removing the ceiling tiles above the teller's desk?
A. Well, I would say yes.
Q. Where do you point to, in your site assessment, where you identified anything about what system of work would be used when your employees came to remove ceiling tiles above that teller's desk.
A. ..(not transcribable)..
Q. And that's because you didn't turn your mind to what that system would be. That's true, isn't it?
A. No, the supervisor on site, the guys that managing the site would know what they were doing. I've got a fair idea that it held up with pegs up above the ceiling, these exact ceilings, are to ceilings that run in the place. So it's a ladder up, lift them out. There's no hard and fast rule about it.
Q. But how would you use a ladder, to your knowledge, if the teller's desk was in place when your men were removing ceiling tiles above that teller's desk?
The Second Defendant is to receive an indemnity in respect of the sum of $16,339.09 paid to the Plaintiff pursuant to s 151Z(1)(d) of the 1987 Act.
Verdict and Judgment for the Second Defendant against the First Defendant on the Second Defendant’s cross claim in the sum of $ 171, 717.
I will defer entry of final orders to enable the parties to check my calculations and to submit any argument as to costs to 14 June 2019.
I grant liberty to the parties to submit agreed short minutes to my Associate before 14 June 2019 to enable orders to be made in chambers in the event agreement is reached.
**********
Endnotes
Decision last updated: 14 June 2019
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