Clark v Schneider Electric (Australia) Pty Ltd - [2021] WADC 11

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CLARK -v- SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD [2021] WADC 11
CORAM:   HERRON DCJ
HEARD:   10 - 12 NOVEMBER 2020
DELIVERED          :   10 FEBRUARY 2021
FILE NO/S:   CIV 4501 of 2017
BETWEEN:   GARTH AARON CLARK
Plaintiff
AND
SCHNEIDER ELECTRIC (AUSTRALIA) PTY LTD
Defendant

Catchwords:

Negligence - Duty of care - Independent contractors - Subcontract - Whether principal contractor on building site owed duty of care to employee of subcontractor - Scope of obligations imposed on principal contractor - Section 22 Occupational Safety and Health Act 1984 (WA) - Section 5 Occupiers' Liability Act 1985 (WA) - Section 5B Civil Liability Act 2002 (WA)

Legislation:

Civil Liability Act 2002 (WA), s 5B
Occupational Safety and Health Act 1984 (WA), s 22
Occupiers' Liability Act 1985 (WA), s 5

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond
Defendant	:	Mr D R Clyne

Solicitors:

Plaintiff	:	Slater and Gordon
Defendant	:	Meridian Lawyers

Case(s) referred to in decision(s):

CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117
J-Corp Pty Ltd v Thompson [2019] WASCA 173
Laing O'Rourke BMC Pty Ltd v Kirwin [2011] WASCA 117
Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nikolich v Webb [2020] WASCA 169
Pollock v Wellington (1996) 15 WAR 1
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16

HERRON DCJ:

Introduction

In December 2014, the plaintiff, Mr Clark, suffered a back injury while working as a painter and sandblaster at the Australian Marine Complex (AMC) in Henderson, which was under the management and control of the defendant, Schneider Electric (Australia) Pty Ltd (Schneider). Mr Clark was employed by Mineworks.[1]
[1] ts 55; Amended statement of claim, par 7.
Schneider was the principal contractor for the construction of switch rooms at the AMC before they were transported to the Pilbara to be installed at the Chevron Australia Pty Ltd (Chevron) Wheatstone LNG Project site.
The issue in this case is the scope, or the content, of the duty of care owed by Schneider as the occupier and principal contractor to Mr Clark, who was working on the AMC site as an employee of Mineworks, a subcontractor to HVLV Pty Ltd, which was in turn a subcontractor to Schneider.
For the reasons which follow, I am not satisfied the scope of the duty of care owed by Schneider to Mr Clark extended to take any action in the circumstances in which he alleges he suffered injury, which would have avoided or reduced the risk of injury.

Quantum agreed

On the morning of the first day of trial, the parties agreed quantum and the trial therefore proceeded before me only in relation to liability.

Background

Prior to December 2014 Schneider entered into a contract with Bechtel International Inc (Bechtel) to construct and fit out switch rooms for the Chevron Wheatstone LNG Project near Onslow in the north of Western Australia.[2]
[2] Amended defence, par 5(a); Exhibit 1.9, subcontract between Schneider and HVLV Pty Ltd, preamble, page 309.
Although par 5 of the amended defence was not admitted by Mr Clark, the defendant elected not to call any evidence, and the contract between Schneider and Bechtel was not tendered into evidence, there was no issue between the parties there was a contract as pleaded in the amended defence between Schneider and Bechtel.
By a subcontract agreement between Schneider and HVLV Pty Ltd (HVLV), HVLV agreed to design, fabricate, construct, install and deliver the switch rooms and their base frames to and from the AMC.[3] The scope of work included a requirement that HVLV complete construction of the 'base frame and walls inclusive of blast and paint'.[4]
[3] Exhibit 1.9; Amended defence, par 5(b).
[4] Exhibit 1.9, s 1 Scope of Work and Pricing Commercial Notes, page 349.
HVLV contracted with Mr Clark's employer, Mineworks, who provided the spray painters and sandblasters who performed the work at the AMC site.[5] Otherwise no evidence was led as to the nature of the relationship between Mineworks, HVLV and Schneider but the parties proceeded on the basis there was a contract between HVLV and Mineworks for Mineworks to provide the workers to perform the painting and sandblasting duties. HVLV as the subcontractor had a presence on the worksite but the employer, Mineworks, did not.[6]
[5] Exhibit 1.16, HVLV event report and Analysis which states that Mineworks was Mr Clark's employer and that Mineworks was a subcontractor.
[6] Plaintiff's opening submissions; ts 18, ts 24, ts 28.
Schneider was the occupier and principal contractor at the AMC site.[7]
[7] Exhibit 1.12, user agreement between Western Australian Land Authority (Landcorp) and Schneider dated June 2013.
Mr Clark commenced working for Mineworks on the AMC site in about September or October 2014 as a painter and sandblaster.[8] The work performed by Mr Clark involved him working beneath the switch room structures, sandblasting and painting the framework. The switch room framework was mounted on concrete filled drums and stood approximately 1.5 m above the ground as shown, for example, in the following photographs:[9]
[8] ts 55.
[9] Exhibits 7.1 and 7.5.

When Mr Clark first arrived on site some of the switch rooms were enclosed and some were unenclosed.[10] He confirmed the switch rooms on which he worked were similar to those which appear in the bundle of photographs.[11] The switch rooms varied in size.[12]
[10] ts 58.
[11] Exhibit 7; ts 58 - ts 59.
[12] ts 58.
Mr Clark is 176 cm tall.[13]
[13] ts 54.
He worked 10 hour days, Monday to Friday, and five hours on Saturday.[14]
[14] ts 62.
Providing the barest of detail, Mr Clark said that the work he performed at the AMC site involved him spray painting, touching up with a brush and roller, and water blasting and sandblasting bare steel.[15] He spent 99% of his time working beneath the switch rooms, sanding and water blasting, grinding, touching up and washing the steel structures.[16]
[15] ts 61.
[16] ts 62.

The injury

I accept Mr Clark's evidence that after he had been working for about five weeks, he experienced severe lower back pain extending into his buttocks.[17] He reported the back pain to Mr Osborne and then was given work involving using an air chisel to clean paint off the floors. He was only able to do that work for about four hours.[18]
[17] ts 63 - ts 64.
[18] ts 64.
He later reported his back pain to Brett Fuller,[19] who, he believed, worked for Schneider.[20] He was then seen by a doctor and placed on light duties which he performed for a few weeks but was not able to continue because his 'back just give in'.[21]
[19] ts 69.
[20] ts 64, ts 66.
[21] ts 69 - ts 70.

The pleadings

By par 4(a) of his amended statement of claim, which is admitted by Schneider, Mr Clark pleads Schneider owed him a duty of care:
i.at common law to take reasonable care to prevent persons carrying out work at the Workplace from sustaining personal injuries and suffering loss and damage as a result of any danger and/or hazard present at the Workplace;
ii.pursuant to Section 5 of the Occupiers' Liability Act 1985 (WA) to ensure that any persons who are at the Workplace would not suffer personal injuries and suffer loss and damage upon entering the Workplace;
iii.pursuant to Section 22 of the Occupational Safety and Health Act 1984 (WA) to ensure that persons who are at the Workplace are not exposed to hazards; and
iv.to take reasonable precautions for the Plaintiff's safety whilst he was engaged in carrying out work at the Workplace and/or not to expose the Plaintiff to any risk of injury of which it knew or ought to have known and to provide and maintain a safe system of work and/or a safe place of work at the Workplace for the Plaintiff;
It is further pleaded that:
1.The switch rooms were positioned on concrete pylons approximately 1.5 m above the ground and that persons who were required to clean and paint the bottoms of the switch rooms had to adopt an awkward posture and bend and crouch to perform their cleaning and painting duties and to move underneath the switch rooms.[22]
2.On 8 December 2014 while he was performing cleaning and painting duties in the course of his employment, Mr Clark suffered an injury to his lower back, particularised as disc protrusions at the L3/4, L4/5 and L5/S1 levels.
3.The back injury was caused by having to bend and crouch and work with an awkward posture beneath the switch rooms.[23]
[22] Amended statement of claim, pars 5 and 6.
[23] Amended statement of claim, par 11.
In par 12 of the amended statement of claim, Mr Clark pleads Schneider was negligent and in breach of its statutory duty. The particularisation of the alleged breach is unhelpful and confusing. The particulars are prolix and repetitive. The amended statement of claim does not plead with any clarity what was the scope or content of the duty of care it is claimed was owed by Schneider to Mr Clark. Nor do the particulars of the breach of duty clarify the basis upon which it is claimed Schneider breached its duty of care to Mr Clark.
Nor do Mr Clark's written opening submissions clarify the position.
The following observations of the Court of Appeal in Nikolich v Webb are apposite:[24]
It is surprising then that in this case, as in many cases which require consideration of the CLA, neither party's respective pleading sought to identify the risk of harm. That course is to be deprecated. Identification of the risk of harm was important to Mrs Nikolich's case for the purpose of indicating how s 5B was satisfied. It was important to the respondents' case so far as they invoked s 5O. A trial judge should have the assistance of a pleaded case which addresses what is contended for in terms of identification of risk of harm. It is for the parties to identify the legal and factual target that is contended for; it should not be something for the trial judge to tease out by questioning of counsel or by after-the-event consideration of how the case was run. Proper articulation of the relevant risk of harm should be the norm whenever the CLA's provisions fall to be applied.
[24] Nikolich v Webb [2020] WASCA 169 [68].
Mr Clark later refined the basis of his claim in the following terms:[25]
[25] Plaintiff's supplementary submission relevant to liability, dated 11 November 2020.
2.It is not in dispute that the Defendant was the occupier of the Workplace.
3.It is not in dispute that the Defendant was the head contractor.
4.It is not in dispute that an entity known as HVLV was a subcontractor who performed works on the site, and in particular, in relation to assembling the Switchrooms.
5.The nature of how the Plaintiff suffered his injury (ie: by working for extended periods underneath the Switchrooms) is also not in dispute.
Duty of Care
6.As an occupier of the Workplace, or as the head contractor at the workplace, the Defendant owed to the Plaintiff:
a.A common law duty:
i.not to expose the Plaintiff to a risk of injury (namely an injury to his lumbar spine) of which it knew or ought to have known might have occurred as a result of the Plaintiff (and workers like the Plaintiff) working underneath the Switchrooms at the Workplace for an extended period of time;
ii.to take reasonable precautions for the Plaintiff's safety whilst he was engaged in carrying out his painting work underneath the Switchrooms at the Workplace;
b.In the alternative, a duty pursuant to Section 5 of the Occupiers' Liability Act 1985 (WA) to take reasonable steps so that persons such as the Plaintiff, upon entering the Workplace, would not suffer injuries, (namely an injury to his lumbar spine) as a result of spending extended periods of time working underneath the Switchrooms; and
c.In the alternative to a. and b. an obligation pursuant to Section 22 of the Occupational Safety and Health Act 1984 (WA) not to expose the Plaintiff to a hazard, namely a system of work that resulted in the Plaintiff working underneath the Switchrooms at the Workplace for an extended period of time.
Breach of Duty
7.The Defendant breached its duty of care as articulated at paragraph 6 a. and b. by failing to:
a.Instruct workers who were working underneath the Switchrooms to take regular breaks and remove themselves from underneath them;
b.In the alternative, instruct HVLV to implement a system of work where workers who were working underneath the Switchrooms were taking regular breaks and to remove themselves from underneath them;
c.Provide workers who were working underneath the switchrooms with lumbar support whilst they were working, such as a sturdy and lightweight adjustable chair;
d.In the alternative, instruct HVLV to implement a system of work where workers who were working underneath the switchrooms were provided with lumbar support whilst they were working, such as a sturdy and lightweight adjustable chair;
e.Instruct HVLV to implement a system of work where workers who were working under the direction or control of HVLV were routinely prescribed alternative tasks to working under the switchrooms.
8.It is not in dispute the Plaintiff has suffered injuries, namely a soft tissue injury to his lumbar spine ('the harm') as a result of working for extended periods of time underneath the switchrooms.
9.For the purposes of section 5B of the CLA, the harm suffered by the Plaintiff in this case:
a.Was foreseeable, having regard to the amount of time the Plaintiff was required to work in an awkward height;
b.Was not insignificant in the sense it was not far-fetched or fanciful; and
c.By virtue of the matters set out at paragraph 7 a. - e., there were reasonable and practical responses to the risk of the harm occurring.
10.In relation to the Plaintiff's claim pursuant to section 22 of the Occupational Safety and Health Act 1984 (WA), the Defendant did not take practicable steps to prevent the Plaintiff being exposed to the hazard.
In his opening, counsel for Mr Clark submitted Schneider was under a duty of care when coordinating the activities of trades at the premises to avoid the unnecessary risk of injury to those engaged in the activity it organised. It failed to ensure that workers on the premises such as the plaintiff had a safe system of work by which workers were rotated from working beneath the switch rooms.[26] It was submitted Schneider ought to have coordinated the work but did not, by:
1.ensuring that workers employed by HVLV, such as the plaintiff, were regularly rotated from under the switch rooms and in a relatively regular period of time;[27]
2.providing practical and adequate means of lumbar support such as a sturdy but lightweight chair;[28]
3.prescribing a system whereby workers of the height of the plaintiff were provided with alternative painting duties on switch rooms which did not require them to work beneath the switch rooms.[29]
[26] ts 24.
[27] ts 24 - ts 25.
[28] ts 25.
[29] ts 26.
It was further explained that the risk of harm was that a painter performing his duties in cramped conditions on a repetitive basis would be exposed to an unreasonable risk of injury, i.e. a back injury.[30] Mr Clark was required to work between 8 to 10 hours each shift beneath the switch rooms in confined and cramped conditions.[31]
[30] ts 27.
[31] ts 28.
It was also submitted that because Mr Clark's employer, Mineworks, did not have a presence on the worksite, but was required to work under the direction of HVLV, who was overseeing the switch room project, and because the plaintiff was working at the AMC site which was under the control of Schneider, the duty of Schneider to ensure the work activities on site 'were free from risk of injury' required it to ensure that Mr Clark did not work for lengthy periods without rotation in cramped and confined conditions, without lumbar support and without having regard to his height.[32] It was submitted that, because Schneider had the ability to dictate the systems of work, it was under a duty to ensure that workers, such as Mr Clark, were provided with a safe system of work by HVLV who had the primary control over how the workers performed their work duties.[33]
[32] ts 29 - ts 30.
[33] ts 32.

The evidence

Only two witnesses gave evidence, each of whom was called by the plaintiff. The defendant did not call or tender any evidence.

Garth Aaron Clark

Without elaboration, Mr Clark said he was painting beneath the switch rooms and touching them up.[34] Later, in re-examination, Mr Clark explained that touch-up work involved him sanding down areas from 2 inches to 10 feet, either using a mechanical sander or by hand, then dusting down the area using an air duster or using an air hose, or a hand duster, then priming the area and later applying a finishing coat using a spray gun or a roller or a paintbrush.[35] Some of the work involved large scale painting, which Mr Clark explained required, as an example, painting a beam measuring 20 feet using a hand sander weighing a couple of pounds and then repainting the beam.[36]
[34] ts 59.
[35] ts 78 - ts 80.
[36] ts 80.
When he commenced at the AMC site, he was given a safety induction which was presented by Schneider for about an hour.[37]
[37] ts 61.
He was allocated work by Shane Osborne and Chris Broomhead, but did not know by whom they were employed.[38]
[38] ts 62.
The structures beneath which Mr Clark worked were at about his chest height from the ground, which required him to bend, duck walk and crawl beneath the structure and drag his gear. He was not able to fully stand up.[39] He performed his work duties while he was bent over.[40] A photograph[41] showing Mr Acciano, apparently standing adjacent to a switch room structure which is level with his chest, depicts the height of the bottom of the structure relevant to Mr Acciano's body, which was similar to Mr Clark's experience.[42] Mr Clark thought the photograph showed Mr Acciano standing on the outside of the structure and not in the gaps between the beams.[43] It was not possible for Mr Clark to stand between the beams.[44]
[39] ts 71, ts 72.
[40] ts 72.
[41] Exhibit 1.25.
[42] ts 73.
[43] ts 75 - ts 76.
[44] ts 76.
Mr Clark worked beneath the structures without being able to fully stand up for the whole of his daily shift except for a lunch break of half an hour and a 15 minute 'smoko' break and an occasional toilet break.[45] There was nowhere beneath the switch rooms where Mr Clark was able to stand.[46]
[45] ts 73, ts 71 - ts 72.
[46] ts 76.
In cross-examination Mr Clark agreed that the painting and sandblasting work he was doing involved remedial work beneath the structures to make sure they could not be damaged by rust. He was required to clean swarf, or areas where rust was appearing, and then paint the areas. When working on the beams he was required to sand them back and then paint them.[47] He did not perform any work on the walls or the cladding. That work was performed by sheet metal workers.[48]
[47] ts 77.
[48] ts 77.

Giuseppe Giovanni Acciano

In 2014 Mr Acciano was also employed by Mineworks as a painter and blaster at the AMC site.[49] Blasting involved applying high pressure air with a cutting tool to clean corrosion off steel and the painting involved applying paint with a brush and a roller and also spraying the paint.[50]
[49] ts 81 - ts 82.
[50] ts 82.
Mr Acciano was 5 foot 6, or approximately 170 cm tall. The floors of the switch rooms beneath which he was required to work were positioned at about his chest height. He was one of the shortest workers on site and because working beneath the floors involved a lot of squatting he was asked to perform the work beneath the floors.[51]
[51] ts 83.

There were 13 modules on site, some bigger than others.[52]
[52] ts 83.
He reported to Shane Osborne who was the Mineworks supervisor on site. Occasionally someone from Schneider would tell him what to do and he would say to them that they had to see his supervisor because he did not work for Schneider.[53] Each morning Mr Osborne directed the painters as to the work they were to perform. There were about 12 or 14 painters.[54] Mr Acciano estimated that he spent 90% of his time working beneath the structures.[55]
[53] ts 83.
[54] ts 83.
[55] ts 84.
Each morning the painters attended a pre-start meeting run by Mineworks. Schneider and HVLV also had their separate pre‑start meetings. Once a week on Friday, the employees from the various companies attended a meeting together.[56]
[56] ts 83.
At the pre-start Mineworks meetings, a lot of the people complained about banging their heads. He banged his head many times. The only comfortable position for him to work from was to sit on a safety step.[57]
[57] ts 84.
He worked with Mr Clark for about two months in a team of four.[58] He and Mr Clark knelt on a safety step to comfortably reach the area they were painting or blasting. They normally had breaks because of working in an awkward position and would often by questioned by a Mineworks safety officer as to what they were doing.[59]
[58] ts 84.
[59] ts 84.
Schneider safety officers were also present, wandering around, making sure that no one was doing the wrong thing.[60] A few times a Schneider safety officer, Brett Fuller,[61] spoke to him and asked whether he was alright and Mr Acciano responded saying it was awkward beneath the structures because they were made out of steel and get hot.[62] He often asked his supervisor, Mr Osborne, whether he could do some indoor work because it was too hot to work during the day.[63]
[60] ts 84 - ts 85.
[61] ts 86.
[62] ts 85.
[63] ts 85.
He confirmed there was no roster system rotating workers from working for extended periods beneath the switch rooms and he worked beneath the switch rooms continuously for at least three months.[64]
[64] ts 85.
There were regular complaints at the daily pre-start meetings about the structures not being mounted higher so that the painters working beneath the structures could stand up rather than having to sit down or kneel to perform the work comfortably.[65]
[65] ts 85.
In cross-examination Mr Acciano confirmed that when he commenced on site he underwent an AMC induction, a Schneider induction, and a Mineworks induction.[66]
[66] ts 87.
Mineworks gave its workers both JHAs and 'take fives' which happened each morning before they started a job, and also after smoko and lunch. Three take fives were signed each day and the JHA was signed once a week.[67]
[67] ts 87 - ts 88.

Findings

On the basis of the evidence of Mr Clark and Mr Acciano I accept Mr Clark, over a period of approximately five weeks, regularly performed painting and sandblasting duties over extended periods in a bent over or crouched position beneath the switch room structures. I accept that because of his height of 176 cm the height of the structures from the ground were at about Mr Clark's chest height which required him to regularly bend, duck, walk and crawl beneath the structures. I accept that he was unable to fully stand up beneath the structures while performing his work duties. However, because of the limited evidence about the nature and details of the work duties he performed, how they were performed and over what periods of time, beyond finding that he used mechanical instruments such as a sander and spray gun and also manually sanded and painted, I am unable to make any detailed findings regarding the nature of his work duties and how he performed them, nor how they are relevant to the circumstances in which he suffered a back injury. Although Mr Clark said he performed his work duties while bent over and was not able to fully stand he did not otherwise explain what his posture was when he was performing his work duties, for example whether he worked above his head or worked with his back in a flexed position with his arms in front of him. Mr Acciano said that both he and Mr Clark knelt on a safety step to comfortably reach the area they were painting or blasting but otherwise no evidence was given as to what that entailed and what, if any, impact working in such a position had on Mr Clark. Of course Mr Clark did not give any evidence he knelt on safety steps when performing his work duties.
I accept Mr Clark was instructed and directed in his work duties by Mr Osborne who is either a HVLV or a Mineworks employee.
I also find that neither Mr Clark nor Mr Acciano were provided with a system of work by which painters and sandblasters were regularly rotated from working beneath the switch room structures and working in other areas where they were not required to work in cramped and confined conditions. Mr Clark and Mr Acciano worked in a team of about 12 or 14 painters working on the switch room structures.
I find there were daily pre-start meetings about the work to be allocated and that there were regular complaints at those meetings about the height at which the structures were mounted which created difficulties working beneath the structures because of not being able to fully stand and no actions were taken by Mr Clark's employer, Mineworks, or by HVLV, or by Schneider, in response to the complaints to implement a system of rotation by which Mr Clark was not required to spend all of his shift working beneath the structures or by which he was provided with a chair on which he could sit to perform his duties.
I accept that when he commenced working at the AMC Mr Clark underwent a site and safety induction presented by Schneider and it is probable he also underwent a Mineworks or HVLV induction based upon Mr Acciano's evidence that he, Mr Acciano, underwent a Mineworks induction. It is unlikely, in my view, that Mr Clark would also not have undergone a Mineworks induction.

Written subcontract between Schneider and HVLV

Although neither party referred to the terms of the subcontract between Schneider and HVLV,[68] it is helpful to refer to the subcontract terms as part of the analysis to determine the scope of the duty of care owed by Schneider to Mr Clark.
[68] Exhibit 1.9.
Section 4 of the subcontract agreement is headed 'General Conditions'. Appendix 1 is headed 'Site Specific Conditions'. Clause 1 of appendix 1 is headed 'Subcontractor's Manager On Site'. 'The Subcontractor' is HVLV. Pursuant to cl 1.2:[69]
… The Subcontractor shall be responsible for maintaining the staff required for performing the Subcontract Work. From the date of starting of the Subcontract Work, Schneider may at any time request evidence that the staff required for performing the Subcontract Work will be available.
[69] Exhibit 1.9, page 344.
The following clauses are also relevant:[70]
1.3The Subcontractor shall maintain a strong and capable organisation at the Jobsite headed by the Site Manager. The Site Manager will be empowered to take any decision necessary for an efficient day to day running of the Subcontract Work. The Subcontractor is fully responsible for monitoring and performance of the part of the Subcontract Work which it shall ask its employees to carry-out. The Subcontractor shall not be entitled to change or modify what has been previously defined or written about the instructions, specifications or procedures needed to carry out the Subcontract Work, without having received the written agreement to this from Schneider. No approval by Schneider shall relieve in any way whatsoever the Subcontractor of its obligation, responsibility and liability for the safety, correctness and performance of the Subcontract Work.
…
2.5Responsibility: The Subcontractor's Representative(s) shall be fully experienced and properly qualified to advise and give direction for the services provided in this Subcontract and shall act for and on behalf of the Subcontractor. The Subcontractor certifies that it is properly licensed, equipped, organized and financed to provide such advice and direction. The Subcontractor shall act independently and not as an agent of Schneider, Bechtel or Owner in performing this work and maintaining complete control and responsibility over its employees.
…
2.8Jobsite Requirements: the Subcontractor work areas on the Jobsite will be assigned by Schneider and the Subcontractor will confine its operations to the areas so assigned. The Subcontractor shall, at all times, be solely responsible for conducting operations under this Subcontract to avoid risk of harm to the health and safety of persons and property. The Subcontractor shall comply with Schneider's and Owner's Wheatstone Project Safety and Health Plan.
2.9Others may be working at the Jobsite during performance of this Subcontract. The Subcontractor acknowledges its obligation to coordinate its activities on the Jobsite with the work of each such party to avoid or mitigate to the greatest extent possible interference with their work. Schneider also reserves the right to schedule the Subcontractor work in a manner to minimize interference with work of any of the parties involved.
[70] Exhibit 1.9, pages 344 - 346.
Those clauses emphasise that the subcontractor, HVLV, was responsible for the performance of the subcontract work, relevantly the painting and sandblasting of the switch room structures, was responsible for organising the way in which the work was performed and was responsible for the employment or hiring of workers to perform the work. Further, HVLV maintained 'complete control and responsibility over its employees'[71] in the way in which they performed their work duties. The subcontract agreement did not give Schneider the right to control and direct the employees of HVLV as to the manner in which they were to perform their work duties. The reservation by Schneider in clause 2.9, of the right to schedule Subcontractor work in a manner to minimise interference with work of any of the other parties involved, reflects Schneider's role and its responsibility on site was to coordinate the various trades and activities on site. Schneider did not have the right, nor the responsibility, by the subcontract to control and direct how subcontractor employees ought to perform their work duties.
[71] Clause 2.5.

Pleaded statutory causes of action

I have earlier referred to the duty of care Mr Clark pleads Schneider owed him including a duty of care it is claimed is owed pursuant to s 5 of the Occupiers' Liability Act 1985 (WA) and s 22 of the Occupational Safety and Health Act 1984 (WA).[72]
[72] [23] of these reasons.
Section 5 of the Occupiers' Liability Act reads:
5. Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property.
(3)A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2).
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to -
(a)the gravity and likelihood of the probable injury; and
(b)the circumstances of the entry onto the premises; and
(c)the nature of the premises; and
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e)the age of the person entering the premises; and
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
Section 22 of the Occupational Safety and Health Act (OSHA) reads:
22. Duties of persons who have control of workplaces
(1)A person that has, to any extent, control of -
(a)a workplace where persons who are not employees of that person work or are likely to be in the course of their work; or
(b)the means of access to and egress from a workplace,
shall take such measures as are practicable to ensure that the workplace, or the means of access to or egress from the workplace, as the case may be, are such that persons who are at the workplace or use the means of access to and egress from the workplace are not exposed to hazards.
(2)Where a person has, by virtue of a contract or lease, an obligation of any extent in relation to the maintenance or repair of a workplace or the means of access to and egress from the workplace, the person shall be treated for the purposes of subsection (1) as being a person that has control of that workplace or that means of access or egress.
(3)A reference in this section to a person having control of any workplace or means of access to or egress from a workplace is a reference to a person having control of that workplace or that means of access or egress in connection with the carrying on by that person of a trade, business or undertaking (whether for profit or not).
[(4) ‑ (6) deleted]
(7)This section does not apply to a person whose duties are set out in section 20.

Civil Liability Act 2002

Although the Civil Liability Act 2002 (WA) is not pleaded, it applies to the action.[73]
[73] As accepted by the plaintiff in his written outline of opening submissions, par 15.
In addressing the question of whether Schneider breached its duty of care it is necessary to have regard to the terms of s 5B of the Civil Liability Act, which provides:
5B. General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.

Principles of law - duty of care

As was explained in CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote):[74]
77Section 5B has been construed as setting out preconditions for establishing a breach of duty, rather than the existence of a duty. We agree with the analysis of Buss JA in Smith for reaching that conclusion.
78The questions posed by s 5B(1), and the considerations referred to in s 5B(2), are to be answered and assessed prospectively and not with the wisdom of hindsight. In particular, the precautions which a reasonable person would have taken are to be assessed before the accident began. The court must look forward to identify what a reasonable person in Frontline's position would have done, not backward to identify what would have avoided the injury to Mr Coote.
(footnotes omitted)
[74] CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [2018] WASCA 117 [77], [78].
In this case the existence of a duty of care on the part of Schneider to workers on the AMC site, including Mr Clark, is not disputed. Rather, what is in issue is the scope, or the content, of the duty of care, namely whether it extended to a duty to instruct workers who were working beneath the switch rooms, such as Mr Clark, to take regular breaks from working beneath the switch rooms, or provide the workers with lumbar support such as an adjustable chair. Alternatively, instruct HVLV, which was in control of and directing the painting and sandblasting activities, to implement a system of work requiring workers to take regular breaks from working beneath the switch rooms or to provide workers with lumbar support such as an adjustable chair or to rotate workers with alternative tasks which did not require them to work between the switch rooms.[75]
[75] Plaintiff's supplementary submission relevant to liability, 11 November 2020, pars 6 and 7.
In identifying the scope, or the content, of the duty of care and what a reasonable response to the risk of harm was, it is first necessary to identify the risk of harm. The correct approach in determining the scope or content of the duty of care has recently been explained by the Court of Appeal in Nikolich v Webb:[76]
[76] Nikolich v Webb [66], [67], [69].
66As Gummow J explained in Roads and Traffic Authority of New South Wales v Dederer:
It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.
67Leeming JA has recently emphasised the practical importance of identifying the relevant risk of harm. As his Honour stated (Payne and White JJA agreeing):
The Civil Liability Act makes the specification of the risk of harm important in every case. That applies at the threshold in every case in which a failure to take reasonable care is alleged, by reason of the three mandatory matters in s 5B(1) that a plaintiff must establish, and the four matters in s 5B(2) which a court is required to consider, all of which are addressed to a 'risk of harm' … The importance of identifying the risk of harm has been stressed in [numerous decisions in the New South Wales Court of Appeal between 2012 and 2018].
This is one of the signal changes effected by the Civil Liability Act. While the correct identification of the risk of harm was stated to be essential to identify a reasonable response in decisions to which the statute did not apply (for example, Roads and Traffic Authority of NSW v Dederer), the statute crystallises the position. (original emphasis) (citations omitted)
…
69In identifying the risk of harm:
1.The formulation of risk of harm should identify the true source of potential injury and the general causal mechanism of the injury sustained.
2.The risk must be defined taking into account the particular harm that materialised and the circumstances in which that harm occurred.
3.What is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning; for example, because:
(a)it obscures the true source of potential injury;
(b)it too narrowly focusses on the particular hazard which caused the injury; or
(c)it fails to capture part of the plaintiff's case.
(footnotes omitted)
In this case the risk of harm identified by Mr Clark is the risk of injury, specifically a back injury, from working beneath the switch rooms for extended periods without being able to fully stand.

What then was a reasonable response on the part of Schneider to the risk of harm? It must be emphasised that the risk of harm which materialised, the injury suffered by Mr Clark, was suffered by him in the course of performing his work duties. It is Mr Clark's case that his injuries were caused by being required to work in cramped and confined conditions over an extended period of time without proper lumbar support. This is not a case where the injury suffered by Mr Clark occurred because of the way in which another trade performed its work. This is not a case where there was a failure by a principal contractor and occupier to coordinate the work of two trades to avoid unnecessary risks of injury, or minimise the risk of injury, to the painters and sandblasters from the work performed by another trade.[77]
[77] Compare J-Corp v Thompson [2019] WASCA 173 [51].

The duty of principals to independent contractors

In Leighton Contractors Pty Ltd v Fox[78] the High Court explained:
20The duty of principals to independent contractors. The common law does not impose a duty of care on principals for the benefit of independent contractors engaged by them of the kind which they owe to their employees. However, it is recognised that in some circumstances a principal will come under a duty to use reasonable care to ensure that a system of work for one or more independent contractors is safe. The principles were explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd:
'An entrepreneur who organises an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organising the activity to avoid or minimise that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organising an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organised and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.'
21It is common in the construction industry for the principal contractor to arrange for the works to be carried out by subcontractors rather than by employing its own labour force. Among the advantages that accrue to the principal contractor in adopting this model for its undertaking is that it does not incur the obligations that the law imposes on employers. An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee. …
[78] Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 [20], [21].
In response to the submission that the principal contractor, Leighton, owed a duty to workers on site to provide induction training to them in the safe method of performing their work duties, the High Court observed that if Leighton owed a duty to workers to provide them with induction training as to the safe method of performing their cleaning duties:[79]
… it owed a duty to provide training in the safe method of carrying on every trade and conducting every specialised activity carried out on the site to every worker on the site. There is no reason in principle to impose a duty having this scope on a principal contractor. The latter is unlikely to possess detailed knowledge of safe work methods across the spectrum of trades involved in construction work. And a duty to provide training in the safe method of carrying out the contractor's specialised task is inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractors.
(footnote omitted)
[79] Leighton Contractors Pty Ltd v Fox [52].
Later,[80] the High Court explained:
In Stevensv Brodribb Sawmilling Co Pty Ltd Mason J explained that if an entrepreneur engages independent contractors to do work that might as readily be done by employees, in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for direction and co-ordination of the various activities being undertaken, the entrepreneur will come under a duty to prescribe a safe system of work. Mr Fox submitted that Downview's liability should be sustained upon this basis. He pointed to the fact that this was a busy building site with many people in and about it. However, as the Court of Appeal observed, there is nothing unreasonable about subcontracting the work of concrete pumping. It is an activity that requires specialised equipment and which lends itself to being carried out by independent contractors. The primary judge's findings that the line cleaning was a self-contained operation that did not require co‑ordination with other activities on the site was not disturbed. Mr Fox's submission cannot be sustained.
(footnotes omitted)
[80] Leighton Contractors Pty Ltd [62].
It is accepted by the parties that Schneider owed a duty to Mr Clark to take reasonable care when co‑ordinating the activities of trades at the AMC to avoid unnecessary risks of injury or minimise the risk of injury to those engaged in the activity it organised. It is the type of duty explained by Brennan J in Stevens v Brodribb Sawmilling Co Pty Ltd[81] as further explained in Leighton Contractors v Fox. Therefore, in the circumstances of this case, as the principal contractor and occupier of the AMC site, Schneider owed a duty of care to Mr Clark to take reasonable care when coordinating the activities of trades at the AMC to avoid unnecessary risks of injury, or minimise the risk of injury, to him and those engaged in the activity it organised, the construction of the switch rooms, including the painting and sandblasting of the floor or the bottom of the framework of the switch rooms. Schneider's duty is to be distinguished from the more stringent non‑delegable duty owed by Mr Clark's employer to him to ensure that reasonable care was taken for his and his fellow employees' safety.[82] Schneider's duty did not require it to retain control of all working systems of the various trades on site. There is no suggestion that it was unreasonable for Schneider to engage the services of an independent contractor, HVLV. Nor is it suggested it was unreasonable for HVLV to engage the services of Mineworks.
[81] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
[82] J-Corp Pty Ltd v Thompson [50].
Although there is a flavour in Mr Clark's submissions that HVLV were not competent themselves to control their system of work without supervision by Schneider, it was not a submission, as I understand Mr Clark's case, which was directly made. Even if that is Mr Clark's case, I reject such a submission. There is no evidence which persuades me that HVLV were not competent themselves to control their system of work without supervision by Schneider.
Further, I am not persuaded there were circumstances which made it necessary for Schneider to retain and exercise the supervisory power over the work being performed by HVLV or its subcontractors. As I have explained, this is not a case where there was a need for Schneider to exercise supervisory power over independent contractors because there was confusion about areas of responsibility creating a risk of injury. The injury suffered by Mr Clark was unrelated to the work being performed by other contractors on site. The painting and sandblasting activity was organised and its operation was in the hands of an independent contractor, HVLV, who organised daily site and pre‑work meetings and job safety and risk analysis.
Nor is there any suggestion that there was a failure on the part of Schneider to take reasonable care in the employment of HVLV.

Can Leighton Contractors be distinguished from Mr Clark's circumstances?

In his closing submissions Mr Clark submitted Leighton Contractors can be distinguished from his circumstances on two bases:
1.First, the principle of Leighton Contractors is confined to circumstances where the work being performed by independent contractors involved specialised activity which the principal was not in a position to provide training for or direct how the work was to be performed, which is to be contrasted with the work being performed by Mr Clark, which although it involved specialised work, the scope of the duty of care did not extend to providing training for that work. Rather, the scope of the duty of care required the application of common sense, by the implementation of a system of rotation so that workers were not working in cramped or awkward positions or conditions over an extended time or the provision of a chair, which did not involve the need to interfere with or provide specialised training as to how Mr Clark ought to perform his work duties.[83]
It was further submitted that the work being performed by Mr Clark did not involve any specialised activity which is to be distinguished from the nature of the specialised activity being performed by the respondent in Leighton Contractors.[84]
2.Secondly, Leighton Contractors was not a case involving a breach of statutory duty because the Occupational Health and Safety Act2000 (NSW) prevented the duties imposed by it on employers and others giving rise to private rights,[85] which is to be distinguished from the Occupational Health and Safety Act 1984 (WA) which does not prevent the duties imposed by it giving rise to private rights.[86]
[83] ts 128 - ts 129.
[84] ts 130.
[85] Leighton Contractors Pty Ltd [42].
[86] ts 131 - ts 132.
It was also submitted that s 22 of the Occupational Safety and Health Act created strict liability.[87]
[87] ts 134.
I reject Mr Clark's submissions that the circumstances in Leighton Contractors can be distinguished from Mr Clark's circumstances. In my view they cannot. Schneider's duty of care did not extend to it being required to instruct workers who were employees of the subcontractor, such as Mr Clark, as to how they should safely perform their work duties. Specifically, Schneider's duty of care did not extend to it being required to instruct Mr Clark to regularly take breaks or to use an adjustable chair in the performance of his work duties beneath the switch rooms. Nor did the scope of Schneider's duty of care require it to instruct HVLV to implement a safe system of work and how to implement a safe system of work.
As I have earlier stated[88] Schneider's duty to take reasonable care required it to coordinate the activities of the various trades working at the AMC site to avoid unnecessary or unreasonable risks of injury to the workers engaged in the construction of the switch rooms, including the painting and sandblasting of the bottom of the switch room structures. Schneider's duty of care is to be distinguished from the more stringent duty of care owed by Mr Clark's employer, Mineworks, to him or owed by HVLV, who appeared to have stood in the place of the employer and who was directing and coordinating the plaintiff each day in the work he was to perform. The employer, Mineworks, or HVLV who apparently stood in the place of Mineworks, was required to devise and maintain a safe system of work to avoid unreasonable risk of injury to Mr Clark. Schneider's duty of care did not extend to it directing either Mr Clark, or his employer, as to how Mr Clark's work duties ought to be safely performed. As with Leighton Contractors, who were held not to owe a duty of care to the respondent worker to provide induction training as to a safe method of performing the work, Schneider was not under a duty of care to instruct or direct either Mr Clark or his employer, or HVLV, as to a safe method of performing his work duties beneath the electrical switch rooms structures.
[88] [68] of these reasons.
Further, this is not a situation where Schneider has engaged independent contractors to do work that might readily have been done by its own employees in circumstances in which there is a risk to them of injury arising from the nature of the work and where there is a need for direction and coordination of the various activities being undertaken which would place Schneider under a duty of care to provide a safe system of work.[89] Schneider was not involved in the business of painting and sandblasting. Neither was it involved in the business of constructing and fitting out electrical switch rooms. HVLV conducted the business of constructing switch rooms. It had the expertise upon which Schneider relied when it appointed HVLV to construct and fit out the switch rooms. Mineworks were subcontracted by HVLV to undertake painting and sandblasting duties. Those tasks, in my view, were of a specialised nature.
[89] As explained by Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd discussed in Leighton Contractors [62].
Essentially, it is Mr Clark's submission that because Schneider was in control of the AMC site and in control of the various activities on site and the work being performed, and had the overall responsibility for construction of the switch rooms, its duty of care extended beyond coordinating the work of the various trades on site to avoid unnecessary risks of injury, or minimise the risk of injury, to the workers of one of the trades or contractors from the work performed by another trade or contractor. The duty of care of Schneider went beyond, it is submitted, a duty to coordinate the work of the various trades on site to ensure that the work of one trade on site was performed safely so that it did not expose workers from another trade on site to unreasonable risk of injury.[90] It is submitted that Schneider's duty of care required it to direct Mr Clark as to how he should safely perform his work, or to instruct HVLV as to how Mr Clark should safely perform his work so as to reduce the unreasonable risk of injury caused by Mr Clark while performing his work duties.
[90] Compare J-Corp v Thompson [51].
As was recognised in CGU Insurance Ltd v Coote:[91]
… the examples given in Stevens of when a duty may arise are not exhaustive. As Newnes JA, with whom Pullin and Buss JJA agreed, noted in Anyco Pty Ltd v Kleeman:
It is not necessarily the case, however, that the circumstances referred to in [Stevens] are exhaustive of the circumstances in which liability may be found on the part of a principal or head contractor. As Ipp JA pointed out in Rockdale Beef Pty Ltd v Carey [2003] NSWCA 132, the nature and extent of the duty of care must be established by a reference to the general law of negligence and the examples given in Stevens are not exhaustive. Ipp JA (with whom Mason P and McColl JA agreed) said:
Such a duty may arise in circumstances where there is no need for the entrepreneur to give directions as to when and where the work is to be done and to co-ordinate the various activities, but where, for other reasons, reasonable care on the part of the entrepreneur affects the way in which the work is to be undertaken and the safety of the work site, and where other considerations (not applicable in Stevens …) such as vulnerability, inequality of bargaining power, control, and the other manifold factors that the law recognises as being relevant to the existence of a duty of care, are present. [84]
(footnotes omitted)
[91] CGU Insurance Limited v Coote (by his Next Friend Stephen Desmond Coote) [74].
In my view there is nothing in the circumstances of this case which extend the scope of Schneider's duty of care to coordinate the various trades and various activities on site, to specifically directing the painters and sandblasters, or directing HVLV, and for that matter Mr Clark's employer Mineworks, as to how their employees ought to perform their work duties to minimise the risk of injury from working beneath the switch room structures. Schneider's duty of care did not extend to it being required to implement and maintain a system of work for the painters and sandblasters to minimise the risk of injury to them from the way in which they were performing their work duties. The responsibility, the duty of care, to establish a system of work for the painters and sandblasters was with Mineworks or HVLV. Schneider's duty to coordinate the activities of the trades on site was to ensure that the way in which the painters and sandblasters performed their work did not expose other persons or trades on the site to an unreasonable risk of injury.
In discharge of its duty of care Schneider prepared and issued the AMC contractor induction[92] by which all contractors and all persons coming on to the AMC site were required to complete an induction and assessment. Each contractor was required to submit any documents specific to the project for review as requested.[93] Each contractor was required to undertake a site orientation and to complete a works schedule.[94]
[92] Exhibit 1.3.
[93] Exhibit 1.3, page 8.
[94] Exhibit 1.3, page 8.
The responsibility for each contractor on site for Environmental Health and Safety (EHS) was spelt out[95] as were each contractor's obligations[96] which included undertaking risk assessment in preparation of a safety plan or method of work statements relevant to the service being provided.[97]
[95] Exhibit 1.3, page 9.
[96] Exhibit 1.3, page 10.
[97] Exhibit 1.3, page 10.
The written AMC induction emphasised that everyone had a responsibility to look for and report hazards and if a hazard was identified the person should immediately notify the supervisor. The induction was focussed on the various trades, or contractors, and activities on site being coordinated in a safe way so that the activities of one trade or contractor did not cause an unreasonable risk of injury to the employees of other trades or contractors.
The written Schneider 'Environmental Health & Safety Management Plan' (EH&S Management Plan)[98] reflects that, (and responds to), Schneider's duty of care was to coordinate the various workers, subcontractors and activities on site. The following provisions are relevant:
[98] Exhibit 1.4.
2PURPOSE
The purpose of this document, the Project EHS Plan PEHSP), is to detail the quality processes, responsibilities and sequence of events relevant to this project under the provisions of the SCHNEIDER ELECTRIC AS/NZS ISO 14001 AND 18001 Management System.
The purpose of this plan is to indicate the intent of how to manage the environment, health and safety on the Wheatstone down Stream Project, activities at AMC Henderson
This EH&S management plan has been implemented to assist SCHNEIDER ELECTRIC and its employees to jointly meet their obligations under the governing legislation.
The safety management plan is an integral part of the AMC, SCHNEIDER ELECTRIC FIT OUT FASCILITY (sic) program to ensure that " The on site safety culture " Zero Harm and Duty of care is owned by one and all.
3.SCOPE
The scope of this plan includes all areas of the project that involves everyone SCHNEIDER ELECTRIC, AMC and Responsibility of the sub contractors, employees any personnel including visitors to follow and adhere to all Western Australian legislation and guidance through their own company procedures for Health and Safety.
SCHNEIDER ELECTRIC Must treat all matters related to People, safety & health, environmental damage very seriously, taking the lead to act promptly in the event of any incidents. Our emphasis is preventative rather than reactive action to safety and health issues.
SCHNEIDER ELECTRIC
Shall ensure that authorised and competent company personnel adequately supervise all work undertaken on the project, regardless of scope or value.
…
5AIMS AND OBJECTIVE OF THIS EH&S PLAN
The objective of the EH&S Management Plan is to ensure that a safe and healthy working environment is maintained on the project for the mutual benefit of SCHNEIDER ELECTRIC employees, AMC Employees, other occupiers at AMC the Public and other personnel as may be engaged by SCHNEIDER ELECTRIC.

THE EXPECTATION FOR THIS PROJECT

Following continuous improvement initiatives aligned to a Zero Incident Target rate,

Aligned to a

Duty of Care 'principle'.

Ensuring that welfare, wellbeing and cognitive abilities for all personnel are catered for.

At the SCHNEIDER ELECTRIC, AMC, Fit Out Facility.

The EH&S Management Plan and procedures shall apply to all SCHNEIDER ELECTRIC personnel, labour hired by SCHNEIDER ELECTRIC, subcontractors and visitors working on the project. When applicable, subcontractor EH&S systems will supplement this EH&S Management Plan where they meet or exceed the requirements of SCHNEIDER ELECTRIC procedures
This EH&S Management Plan outlines:
•The philosophy for the EH&S Management program including statutory requirements.
•The application of SCHNEIDER ELECTRIC standard procedures for EH&S Safety management.
•The Responsibilities of all personnel that will make this EH&S Plan happen.
•Site Specific EH&S requirements.
6OBJECTIVES AND TARGETS
The SCHNEIDER ELECTRIC Management Team shall through a 'hands on' approach, demonstrate commitment to and accept the defined Project safety performance goals as their own targets and objectives, they shall as part of their day to day activities put health, safety and protection of the environment first in all matters and strive to achieve an incident free work place for our employees, sub-contractors and Bechel.

Under the heading 'Stakeholders' cl 10 reads:
Chevron Australia is the majority share holder of the development vehicle and has engaged the services of Bechtel as its lead contractor.
SE Australia is the nominated Principal Contractor to undertake the turnkey design and construction of the Wheatstone Substations.
SE is the Principal Contractor at the AMC site as Lessor (from AMC) and Site Occupier.
SE will engage various subcontractors to perform certain work activities as required for the project.
As recognition of the importance of stakeholders to the success of the project, office facilities will be made available to Bechtel and Chevron personnel visiting the AMC site.
Clause 12.8 sets out the responsibilities for the Schneider site manager which includes:[99]
Having the ability to recognise and stop work when it's unsafe to continue and correcting the incident immediately …
[99] Exhibit 1.4, page 63 (cl 12.8(2)).
The site manager also had the responsibility to conduct regular safety audits, toolbox meetings and the reporting of 'hazards, unsafe work practices, near misses and all injuries'.[100]
[100] Exhibit 1.4, page 63 (cl 12.8(7), cl 12.8(8) - cl 12.8(12)).
By cl 12.10 all subcontractors were required to provide a 'Job Safety Analysis' and comply with the Schneider EH&S Management Plan.
By cl 13.4 under the heading 'Job Safety Analysis':[101]
No repetitive or frequently occurring tasks are expected with this contract …
[101] Exhibit 1.4, page 67.
By cl 13.5 under the heading ' "Take 5" Risk Analysis' there was a requirement that if a new task was performed or a new hazard was identified to undertake a Take 5 risk analysis prior to continuing with the work.[102]
[102] Exhibit 1.4, page 68.
Clause 14.5 sets out the procedure for hazard identification and risk assessments.
Although it is not relied upon by Mr Clark, cl 17.3 refers to what must be done if work is required to be undertaken in 'Confined Spaces'.[103]
[103] Exhibit 1.4, page 88.
The EH&S Management Plan is a comprehensive document which reflects and responds to Schneider's duty of care to coordinate the various activities and trades on site to avoid the unreasonable risk of injury occurring because of the interaction of the various trades and activities on site.
It is further submitted by Mr Clark that because Schneider was on notice that an employee of HVLV, Lee Jones, suffered an injury earlier in the year on 7 March 2014 from performing repetitive tasks when he was 'crouched over'[104] that Schneider was under a duty of care to step in and instruct workers or their employers to ensure that tasks are rotated,[105] or put in place a system of work, which guarded against the risk of injury from performing repetitive work.[106] The plaintiff submits that because Schneider had actual knowledge of a work system that gave rise to a foreseeable risk of injury, simply putting into place procedures that direct a subcontractor to follow appropriate safety policies and guidelines was not sufficient to discharge its duty of care to Mr Clark because of his vulnerability.[107] In circumstances where both Mr Clark and Mr Acciano were regularly performing repetitive work and neither of them were instructed by their employer or HVLV to rotate their duties, Schneider, it is submitted, came under a duty of care to specifically instruct Mr Clark in the performance of his duties and to put in place a system of rotation.[108] I reject that submission.
[104] Exhibit 3, incident report form and attached HVLV documentation.
[105] Exhibit 3, HVLV incident report and investigation form, page 2.
[106] ts 103 - ts 104.
[107] ts 112.
[108] ts 113 - ts 114.
The HVLV incident report and investigation form states that Mr Jones suffered an injury to his big toe on his left foot from performing repetitive movements. The more detailed description of what is alleged to have happened was that:
he was doing the same task frequently and was crouched over. … the fumes from the glue were too much. Evie said it is always a repetitive task - the following day he will be assigned a new task. Adam assigned Lee a new task but Lee continued doing the task.
The cause of the problem was identified that the worker had started a repetitive task again after being told not to. The corrective action was identified to be 'supervisors to ensure tasks are rotated.'
In a Schneider incident investigation report form the incident is described as Mr Jones 'doing the same task quite often but he was frequently working in the same crouched and bent over position' and suffered pain in his left big toe on his left foot. The failed controls were identified as the 'worker was not rotated previously' and the worker went against the instructions given to perform another task. The further corrective actions were identified as supervisors ensuring that workers were not given tasks where they are frequently repeating the same movements. Workers were encouraged to follow instructions and to speak up about any issue that may potentially affect their safety which was to be brought up at a toolbox meeting.
Although I accept that Schneider were aware of that incident, and the circumstances in which the injury occurred, it does not follow that a reasonable response by Schneider as the principal contractor required it to step in and instruct and direct the painters and sandblasters, or their employer, as to how they should safely perform their duties beneath the switch room structures. There is nothing in the reported circumstances in which Mr Jones suffered his injury to suggest that there were any safety concerns about the way in which painters and sandblasters were performing their work duties beneath the switch room structures and that it was unsafe. Simply because Schneider was on notice that Mr Jones had suffered an injury to his big toe in March 2014 while performing repetitive movements when he was 'crouched over' in March 2014, despite being instructed not to continue to perform that task, does not lead to a conclusion that Schneider came under a duty of care to instruct individual employees of subcontractors on site and put in place a system of work to guard against the unreasonable risk of injury from any work activity requiring the performance of repetitive tasks in cramped or awkward conditions which Mr Clark, by his submissions, appears to say should have happened. Although it is unclear precisely what were the nature of the activities performed by Mr Jones and over what period of time the activities were performed, there is no connection with or relationship to those activities and the activities performed by Mr Clark six months later. Mr Jones' position is described as a labourer.[109] He was not working as a painter and sandblaster. Nor is there any evidence that suggest he was performing repetitive tasks beneath the switch room structures. There is nothing in those documents to alert Schneider to concerns about the work practices of HVLV in relation to the work being performed by the painters and sandblasters beneath the switch room structures.
[109] Exhibit 3, HVLV accident/incident report form, page 1 of 2.
The documentation is consistent with Schneider in its role as the principal contractor and occupier of the AMC coordinating the various activities on site and being informed of any work injuries for the purpose of ensuring that the various work activities are safely undertaken and coordinated. The documentation is also consistent with HVLV, as the subcontractor directing and supervising Mr Clark in the performance of his duties, being responsible for and being under a duty of care to Mr Clark to avoid an unnecessary or unreasonable risk of injury from the performance of his work duties. It reflects the evidence of Mr Acciano of the realities of working on the AMC site that if someone from Schneider told him what to do he would tell them to speak to his supervisor because he did not work for Schneider.[110]
[110] [37] of these reasons.
Further, even if the circumstances of Mr Jones' injury ought to have raised concerns by Schneider about whether workers working under the direction of HVLV were not being provided with a safe system of work that does not establish any basis for the scope or the content of Schneider's duty of care extending to directing or instructing HVLV, or Mineworks, or the painters and sandblasters working beneath the switch room structures, as to how they ought to have safely performed their work duties to avoid the unreasonable risk of injury, in the way particularised by Mr Clark. The situation in which Mr Jones suffered his injury, and also in which Mr Clark suffered his injury, did not arise because of unsafe work practices from one trade or contractor causing an unreasonable risk of injury to another trade or the workers of another contractor such that there was a failure to properly coordinate or organise the work activities on site. Generally, if a worker suffers an injury because of unsafe work practices by his employer, as distinct from unsafe work practices from another contractor on site, the employer is responsible and liable for the injury to its employee. The failure by a contractor to provide a safe system of work for its employees does not, by itself, give rise to a duty of care on the part of the principal contractor or occupier, towards the employee.
Essentially, it is Mr Clark's submission that in the discharge of its duty of care it was not sufficient for Schneider to simply issue its EH&S Management Plan. It was required, in respect of each separate work activity on site, to undertake its own analysis and assessment to ensure each worker on site was provided with and performed his or her work activities in accordance with safe working practices required by the management plan. I reject that submission. Such a submission places Schneider in the position of an employer in respect of each individual worker on site. In my view Schneider's duty of care to Mr Clark did not extend to ensuring the way in which his employer required him to perform his activities was safe and that he was provided with a safe system of work. The employer was under that duty of care, not Schneider. It was a nondelegable duty of care.
Turning to the second basis upon which Mr Clark submits Leighton Contractors can be distinguished from his circumstances in this case which is that the respondent's cause of action in Leighton Contractors was not based on a breach of statutory duty, unlike Mr Clark's action. While I accept Leighton Contractors was concerned with the extent of the duty of care owed by Leighton Contractors at common law and not by virtue of a statutory duty of care pursuant to s 22 of the OSHA nothing turns on that. Although, as I have earlier explained, Mr Clark's counsel initially submitted s 22 gave rise to strict liability on the part of Schneider,[111] counsel later resiled from that submission. In written supplementary submissions[112] counsel accepted that s 22 does not alter the common law position and does not create any different duty of care or expand the scope of the duty of care owed by Schneider as the principal contractor. Counsel accepted the principles explained by the Court of Appeal in Laing O'Rourke BMC Pty Ltd v Kirwin,[113] which considered the nature of the duty imposed on an employer by s 19(1), rather than s 22, also apply to the operation of s 22 and persons who have control of a work place.
[111] ts 134.
[112] Filed 13 November 2020.
[113] Laing O'Rourke BMC Pty Ltd v Kirwin [2011] WASCA 117 [30] - [39] (Murphy JA).
In summary, it is conceded by Mr Clark, in my view quite properly, that the nature and content of the duty of care owed by Schneider at common law, or under the Occupiers' Liability Act or the Occupational Safety and Health Act are, in the circumstances of this case, conterminous.

Causation

I turn to consider the issue of causation on the basis that I am wrong in my conclusion that Schneider was not under a duty of care in the way identified by Mr Clark. That is, that Schneider was under a duty of care to instruct Mr Clark, or direct HVLV, as to how Mr Clark must safely perform his work by regularly rotating him from beneath the switch room structures, or to direct him to perform other duties not requiring him to work beneath the structures and to use a chair, and accepting that Schneider breached its duty of care by not doing those things, whether the breach of duty caused the injury suffered by Mr Clark while performing his work duties.
In relation to causation, Mr Clark principally relies upon the expert opinion of Dr Alan Home, an occupational physician.[114]
[114] Exhibit 5.1 and 5.2.
Mr Clark originally pleaded he suffered disc protrusions at the L3/4 - L5/S1 levels.[115] In his supplementary written submissions, which revised the basis of his claim against Schneider, Mr Clark stated that it was not in dispute that he suffered soft tissue injuries to his lumbar spine.[116] However Dr Home does not, in his report of 31 August 2020,[117] say that Mr Clark suffered disc protrusion injuries as a result of his work, or a soft tissue injury to his lumbar spine. Rather, under the heading 'Assessment' he states:
Mr Clark had experienced chronic left-sided mechanical low back pain with sematic referred pain to the left thigh since undertaking workplace activities in December 2014, as set out in my previous report. The clinical presentation is consistent with chronic back pain arising from left‑sided lumbar facet joint dysfunction. Again, I note positive uptake in a previous technician bone scan in relation to the L4/5 and L5/S1 facet joint. There is also underlying degenerative disc disease in the lower lumbar spine that may be contributing to his experience of low back pain.
Mr Clark's condition had been stable since my last review.
[115] [19] of these reasons.
[116] [23] of these reasons; Plaintiff's supplementary submissions dated 11 November 2020, par 8.
[117] Exhibit 5.2.
Under the heading 'Causation' Mr Home states:
7.Are you of the view that, based on the history which has been provided by my client in respect to how the work accident occurred, that my client's injuries are as a direct result of his work activities?
I remain of the view that Mr Clark's injuries arise from his workplace activities. I find that the workplace activities were a significant contributing factor to the development of his chronic back pain.
8.But for the accident my client described to have taken place on 8 December 2014, would my client have suffered from any impairment or be left with the symptoms and medical condition in which he now finds himself?
I remain of the opinion that Mr Clark's condition will be unlikely to be symptomatic in the absence of the workplace activities undertaken on 8 December 2014.
9.Based on the history provided by my client, are you of the view that my client's work activities were a significant contributing factor in causing his current injuries?
Mr Clark's activities over the two week period leading up to 8 December 2014 were a significant contributing factor to the cause of his current injuries.
Dr Home does not identify or explain what are the injuries suffered by Mr Clark as a result of his workplace activities. His diagnosis that Mr Clark suffers from chronic left sided mechanical low back pain arising from left sided lumbar facet joint dysfunction is not a diagnosis of an injury suffered as a result of workplace activities. Dr Home also notes underlying degenerative disc disease in the lower lumbar spine but otherwise does not explain its significance to the back pain suffered by Mr Clark other that it may be contributing to the pain.
There is no identification of, or analysis of, the work activities performed by Mr Clark in the 'two week period' leading up 8 December 2014 and how those work duties 'were a significant contributing factor to the cause of his current injuries.' Mr Home does not set out any basis for his conclusion that the work activities contributed to development of Mr Clark's back pain other than that back pain arose during the course of those activities. He does not explain what were the work activities and the relationship between those activities and any injuries suffered by Mr Clark. He does not explain the physical mechanism which caused any injury. If the injury is a disc protrusion he does not explain whether that was caused by the work activities, and if so how, or whether it was pre‑existing. He does not, for example, explain the significance of the underlying degenerative disc disease and how, if it is the case, the work activities caused, in the sense they materially contributed to, that condition becoming symptomatic when it had previously been asymptomatic.
The factual basis of Dr Home's opinion that the workplace activities contributed to Mr Clark suffering back pain is not sufficiently set out in his report which undermines his opinion the work activities caused a back injury or back pain. For Dr Home's opinion to be accepted he must identify the primary facts on which his opinion is based. Before an expert medical opinion can be of any value, the facts upon which it is founded must be proved by admissible evidence and the opinion must be founded upon those facts. A court ought not to accept an opinion or act on it if the basis for it is not explained by the expert witness: Pollock v Wellington; Makita (Australia) Pty Ltd v Sprowles.[118]
[118] Pollock v Wellington (1996) 15 WAR 1; Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Nor does the substance of Dr Home's evidence,[119] for similar reasons, assist Mr Clark. Referring to the photographs, exhibits 1.24 and 1.25 (which are annexed to these reasons), Dr Home offers the opinion:
3.One option to reduce the risk of injury to a worker who was working in such a confined space would be to implement a rotation roster, where individuals such as Mr Clark would be placed on, say, a half hour-about roster to prevent him from being in the confined space for an extended period of time.
4.Another way of avoiding the risk of injury in this case would have been to introduce something as simple as a sturdy, but light weight chair for workers to sit on whilst painting or sandblasting the underside of the switch rooms.
[119] Exhibit 5.1.
Without knowing the factual circumstances of how Dr Home understands the injury to be caused to Mr Clark, and the nature of that injury, his opinion as to how the risk of that injury could have been reduced is meaningless and no weight can be given to it. Without knowing the detail of the activities performed by Mr Clark and the circumstances in which he was performing those activities relevant to when he suffered any back pain or back injury, it is not possible to make any assessment as to whether working a half hour-about roster would have reduced the risk of injury. Without knowing the mechanism which caused the injury, it is not possible to conclude how a half hour-about roster would have reduced the risk of such an injury. For example, without knowing what was physically involved in the activities and Mr Clark's posture when performing the activities and the period of time in which he maintained such a posture, it is not possible to say whether working a half hour-about roster would have reduced the risk of injury. Was Mr Clark performing work duties bent forward or bent backwards? Was he working using equipment such as spray painting guns or sandblasting equipment above his head or at chest or shoulder level? Did he have to squat with his knees bent for extended periods of time? Did he work for extended periods of time with his back in a forward flexed position which may have subjected his lower back to physical strain exposing him to the risk of injury. If working half hour-about rosters was a reasonable response to the risk of injury how would that have reduced the risk of injury? Why not an hour‑about roster rather than half an hour? Mr Clark gave evidence he worked 10 hour days. If he worked half hour‑about rosters he would have worked 5 hours a day beneath the switch room structures. How would working 5 hours a day, rather than 10 hours a day, beneath the structures have avoided the risk of injury?

In relation to the use of a chair, no explanation is provided as to how that would have avoided the risk of injury. Presumably it is intended that sitting on a chair would have avoided Mr Clark from having to work in a crouched condition, although that is unclear. No assessment or analysis is provided as to how the use of a chair would have avoided or reduced the risk of injury. There is no explanation as to how the various duties required of a painter and sandblaster would have been performed by using a chair and what impact that might have had on any positioning or posture of Mr Clark while performing his work activities. There is, for example, no explanation of whether a chair might have been used for some duties but not other duties, or how a chair might have been used if it was necessary to paint a large area or a 20 m length of beam.
Further, although Dr Home provides limited details about the type of chair which could be provided to reduce the risk of injury, Mr Clark in his reframing of the basis of the claim for liability pleads that the chair would be an adjustable chair. Dr Home does not refer to the chair being an adjustable chair. It is unclear whether the reference to an adjustable chair means a chair which is able to be adjusted for height or for lumbar support or both but I proceed on the basis it is for both.
Because it is not clear what the mechanical cause of the injury was, it is not clear how Mr Clark would have performed his duties using an adjustable chair and how such a chair would have reduced the risk of injury.
This is a matter about which I would have expected more detailed expert evidence to have been adduced such as an ergonomic or occupational health and safety assessment. I acknowledge that the working conditions faced by Mr Clark probably no longer prevail and it would have been difficult to obtain an ergonomic or occupational assessment of the exact working conditions which existed at the time the injury was suffered for the purposes of the court proceedings. Nevertheless, I would have expected there to be a detailed analysis of some kind by an appropriate expert regarding the nature of Mr Clark's work duties, their relationship to any injury suffered by Mr Clark and what action could have been taken to reduce the risk of that injury. The opinion of Dr Home does not provide any sufficient analysis of the cause of Mr Clark's injury, indeed what is the nature of the injury, and how the risk of such an injury could have been avoided or guarded against. I place no weight on Dr Home's opinion and do not accept it.
In summary, even if Schneider's duty of care to Mr Clark required it to take the action or put in place the steps identified by Mr Clark, I am not persuaded that action or those steps would have avoided or reduced the risk of injury to Mr Clark.
Accordingly I dismiss Mr Clark's claim.
I will hear the parties as to the orders which follow from these reasons and also as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KG
Associate to Judge Herron
8 FEBRUARY 2021