Govic v Boral Australian Gypsum Ltd
[2014] VCC 1366
•26 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-13-01504
| JOHN GOVIC | Plaintiff |
| v | |
| BORAL AUSTRALIAN GYPSUM LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 13, 14, 15 and 18 August 2014 | |
DATE OF JUDGMENT: | 26 August 2014 | |
CASE MAY BE CITED AS: | Govic v Boral Australian Gypsum Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1366 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Plaintiff suffered injury to his left and right Achilles tendons over period of employment with defendant – whether plaintiff employee or independent contractor – whether defendant in breach of duty to take reasonable care to avoid the risk of injury – whether a breach of the Occupational Health and Safety Act and the Regulations made thereunder – pain and suffering only
Legislation Cited: Occupational Health and Safety Act 2004; Occupational Health and Safety (Manual Handling) Regulations 1999; Occupational Health and Safety Regulations 2007
Cases Cited:Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Humberstone v Northern Timber Mills (1949) 79 CLR 389; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Australian Mutual Provident Society v Chaplin & Anor (1978) 18 ALR 385; Elazac Pty Ltd v Shirreff [2011] VSCA 405; The Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools and Ors [2012] All ER(D) 238; [2012] UKSC 56; Boehm v Strongback Pty Ltd [2011] VSC 463; Ansett Australia Ltd v Taylor [2006] VSCA 171; R v ACR Roofing Pty Ltd (2004) 11 VR 187
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr S Loftus | Nowicki Carbone |
| For the Defendant | Mr D E Curtain QC with Ms J Frederico | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff claims to have suffered injuries to the Achilles tendon of both his left and right ankles in the course of his employment duties with the defendant, Boral Australian Gypsum Limited (“Boral”). Boral claims that the plaintiff was employed as an independent contractor rather than an employee. The plaintiff alleges that Boral was negligent in permitting him to work, or to continue to work undertaking various duties, including climbing ladders, lifting and carrying heavy plasterboard, placing the board on walls at various residential premises and being required to wear steel-capped safety boots. The plaintiff further alleges that Boral was in breach of the Occupational Health and Safety (Manual Handling) Regulations 1999, the Occupational Health and Safety Regulations 2007 (“the Regulations”) and the Code of Conduct referred to in those Regulations (“the Code”).
2 Boral denies negligence, alleges contributory negligence, and denies any breach of the Regulations.
The pleadings
3 By his Amended Statement of Claim,[1] the plaintiff alleges that over the course of his employment with Boral,[2] and on or about 31 January 2010, he was required to carry out various work duties, in particular:
[1]Leave was granted to the plaintiff to file an Amended Statement of Claim and Reply on the 15 August 2014
[2]While the evidence is not completely clear, it would appear the plaintiff commenced employment with Boral in 1997. Plaintiff’s Counsel conceded that the allegations as to negligence could only concern the plaintiff’s employment from October 1999
· Hanging, stopping, sanding and maintaining plasterwork
· Climbing on and off ladders
· Working on ladders
· Carrying heavy and awkward weights
· Supporting weights and equipment while on ladders
· Working in awkward positions
as a result of which he suffered injury. It is alleged the injury was caused as a result of the negligence of Boral, relevantly particularised as:
· Requiring or allowing the plaintiff to repeatedly lift and carry sheets of plaster which were awkward and weighed approximately 20 kilograms
· Requiring or allowing the plaintiff to repeatedly climb on plasterer’s stools while carrying heavy or awkward loads
· Requiring the plaintiff to lift, lower and carry heavy loads, applying uneven or fast forces
· Jumping while carrying a load
· Carrying loads which required two people to safely handle them
· Exerting high force while in an awkward posture
· Requiring the plaintiff to carry out repetitive or sustained postures, movements or forces
· Requiring or allowing the plaintiff to work repeatedly with his arms reaching overhead
· Requiring the plaintiff to wear elastic and/or non-lace-up steel safety boots after the plaintiff had informed Boral that his heels were injured
· Failing to instruct or properly instruct the plaintiff
· Failing to prescribe and/or enforce a safe system of work
· Failing to provide a comprehensive training and education program for the plaintiff in the performance of his duties
· Failing to provide any or any proper safety equipment
· Requiring the plaintiff to work extensive hours in heavy work boots
· Failing to provide the plaintiff with any or any adequate assistance
· Knowing the plaintiff had suffered the onset of symptoms affecting his right and left foot:
§ requiring and or permitting him to continue performing the work duties
§ not alternating his work duties
· Failing to comply with the provisions of the Occupational Health and Safety Act 1985, the Occupational Health and Safety (Manual Handling) Regulations 1999, and the Code of Practice in relation thereto, and the Occupational Health and Safety Regulations 2007.
4 Further, it is alleged the plaintiff suffered injury as a result of statutory breach, in particular, breach of the Regulations and the Code.
5 By its Defence, Boral:
· Denied it employed the plaintiff, and says at all material times, the plaintiff was a sub-contract plasterer pursuant to a sub-contract agreement
· Denied each and every allegation of negligence and statutory breach
· If the plaintiff suffered injury, such injury was caused by the plaintiff’s breach of the sub-contract agreement
· If the plaintiff was employed by Boral and suffered injury as a result of its negligence, the plaintiff was guilty of contributory negligence.
The evidence as to liability
6 The plaintiff, John Govic, gave evidence. He was born in 1974 and is now forty years of age. He was educated to Year 11. He first worked as an apprentice chef and then commenced work as a plasterer. He worked with his brother for six to ten years and commenced work with Boral in 1992.[3]
[3]Other documentary evidence would suggest the plaintiff commenced work for Boral in 1997. He remained working with Boral until he left because of injury in 2010.
7 The plaintiff’s work involved undertaking various plasterwork, in particular, at residential premises being constructed by various building companies which had contracted with Boral to undertake plastering. For a period between 2001 and 2003, he was employed as a supervisor. Over that period, he was provided with a car, and undertook supervisory rather than plastering duties.
8 The plaintiff said that he received no training in relation to the plastering duties but in 2006, underwent an induction course, along with ten or twenty other employees. The “do’s and don’ts” of work safety were explained, a test was conducted and induction cards provided. There was a slideshow about general safety.
9 The plaintiff generally worked five days a week, commencing at 7.00am and working until 3.00pm, or sometimes later, until the work was completed.
10 In 2003, he signed a contract to act as a sub-contractor for Boral. He was told by management that if he did not sign it, he would not get paid for the work which had been done. After the contract was signed, he worked the same hours. A supervisor would meet him at a particular job, or fax details of a job to him and then provide him with the paperwork at the job. He was provided with a list of the plastering work which had to be undertaken at a site. He worked only for Boral, save that in later years, he did some work for other people at weekends. He was employed to rectify or repair work undertaken by other tradesman, and generally to fix plasterwork at premises. He had to work to a timeframe, in that the work had to be completed to enable other tradesmen to get their work done.
11 The plaintiff used a range of tools, including hammers, a panel lifter, electric sander and box trails. They were all his tools. If he did not have the correct tool, then Boral would get what was required from another tradesman. The plasterboard and cornices and other material were purchased from Boral, although he supplied some. The ladders he used were his own. Boral sometimes provided the scaffold.
12 His work duties included climbing up and down ladders and onto scaffolding, mixing cement and carrying heavy materials, including 20-kilogram bags of cement, and installing the plaster. Generally, he would put the plaster on the back of a plasterboard or cornice, and then take it up onto the ladders and scaffold. He would sometimes carry plaster sheets of 4.2 metres by himself, or drag them into the relevant area. The sheets were very heavy, weighing something between 10 and 20 kilograms.
13 The plaintiff wore a high visibility shirt provided by Boral with his name on it.[4] The other equipment, including pants and boots, he provided himself.
[4]Exhibit CC
14 In about 2000, a boots supplier came to Boral’s premises and he picked boots. Boral specified that safety boots had to be worn on site.
15 The problems with his feet or heels started in 2006. In particular, they were affected by going up and down ladders, overstretching, carrying heavy equipment, walking over rough and uneven terrain and working by himself without assistance. On one occasion, he asked to be provided with extra labour, but was told that it was too costly.
16 The plaintiff said he first went to see an osteopath for treatment about his ankles. The osteopath did stretching and massage. He also saw a podiatrist, who suggested heel raisers, which he purchased.
17 For payment for the work he undertook, he had to fill in an invoice and submit it to his supervisor. He gave it to the supervisor on site, or dropped it into a letterbox or faxed it to the office. He was audited about three times on the job but his work was of high quality, and did not need checking. Gradually, his heel pain got worse.
18 There was a spot audit on 4 May 2010 conducted by a Boral manager, Phil Henderson, and another person, Travis Blake, who was training to be a supervisor. The plaintiff said he had received a certificate from his doctor in January of 2010 saying he had a problem with his heels.[5] He said that he provided that to his supervisor, although he could not remember who it was. He heard nothing further from Boral.
[5]Exhibit A
19 On 4 May 2010, he told Mr Henderson that he had a medical certificate. Mr Henderson suggested he obtain a new one but regardless, the plaintiff still had to wear safety boots on the site. He obtained another certificate that afternoon, from his doctor.[6] He gave it to the supervisor on the jobsite, he thought Travis Blake.
[6]Exhibit B
20 The plaintiff was taken to an Audit Form[7] where it was noted that he was not wearing safety footwear because of a “doctor’s certificate”. He said the form was filled out in front of him and he had told them that he had a doctor’s certificate.
[7]Plaintiff’s Court Book (“PCB”) 260
21 Around this time, he kept his work boots in the car and drove to work in runners and tried to work with the runners on. He was told by the supervisor to wear safety boots. He could not recall any further discussion about the boots. After that time, the pain in his ankles and heels became more frequent and intense. He limped on the job. He would have been seen by the Boral supervisors, limping. Nothing further was said to him.
22 Mr Wang carried out surgery to his left Achilles tendon on 9 February 2011 and to the right Achilles tendon on 15 June 2011.
23 The plaintiff was then cross-examined. He could not recall whether he had always paid his own tax with Boral, or whether it had been deducted. During his work for Boral he had never been paid holiday pay, nor sick leave.
24 From 2003, after he signed the agreement, Boral would give him a fixed price for the work undertaken. After 2006, there was no more fixed price work, but rather, he was paid $38.50 per hour. He was not required to fill out timesheets. He provided an invoice to Boral for every job. He traded under the business name “Protech Plastering” and had a family trust, Govic Family Trust, and income was distributed to his wife.
25 In the homes he attended, he would be paid a certain fixed amount, for example $10 to repair holes in the plaster up to 150 millimetres, and $12 to repair holes in the plaster up to 400 millimetres. There was also a callout fee. The rate increased from $35 an hour plus GST to $38.50 per hour plus GST. Aside from the fixed amounts, he would be paid an hourly rate for his time on the job. Some jobs were only an hour or two, and some much longer. Sometimes he would attend several sites on a day. He received no long service leave entitlement, and Boral did not contribute to his superannuation.
26 Over the period from November 2001 until June 2003, he was employed by Boral as a supervisor. He was employed full time and paid holiday pay and other entitlements. Tax was deducted.
27 After 2003, when he signed the agreement, if he finished early he could go home if there was no work. He was told by the supervisors what section of the plaster was to be repaired and whether it was to be removed or patched. The supervisors did give some directions. They came to check his work.
28 The plaintiff signed contracts in 2003, 2006 and 2008. He tried to read them but could not understand them.
29 After 2003, he claimed the cost of running his car himself and obtained a tax deduction. He had to buy Boral products, including soft plaster, plaster screws and the like.
30 The plaintiff purchased his own new boots. He chose the ones which Boral had suggested as being safe. He went to a shoe shop and made his choice. He showed them to the supervisor, who said they were fine.
31 The plaintiff could not recall exactly when he first had problems with his feet. He thought it was before January 2010. He was taken to a letter from Dr Jade Harries, an osteopath who he consulted, which said that the first time he presented was in February 2010. He thought he went to see her before that. It was suggested to him that he did not complain about his ankles or feet to his general practitioner until 2010, although he had seen that doctor regularly from 2005. There was one time he complained of an ankle problem in 2006. He said he complained to people at Boral once or twice before 2010 to a supervisor, although he could not remember who, or the year he complained or on which site he was at the time of the complaint. The point of submitting a certificate was to let Boral know that he could not wear safety boots because of the pain in his heels. The certificate from Dr Best of January 2010 was for a month. He then went back to wearing safety boots. He said a supervisor would see him walking around limping on the jobsite and would ask what was wrong. The plaintiff told the supervisor that his feet were sore. The people he reported it to were Travis Blake and Phillip McGee, although he could not recall the dates. He thought it was before May 2010. He disagreed that the first discussion he had with anyone from Boral about his feet was May 2010. He highly doubted that at one point, after he was wearing steel-capped boots, he danced down the hall and said words to the effect “I am giving these safety boots a try again”.
32 The plaintiff changed his boots several times. He needed steel-capped boots to work on the site but the problem was with the heels not the toes. He looked at his local shoe shop in Melton, and several other shops. He knew they made steel-capped shoes that looked like jogging shoes and sneakers. He could not wear laces because they might get caught and were a tripping hazard. He tried a number of these shoes, but they did not provide any more comfort. He denied he was told by Mr Henderson that he could get sandshoes or sneakers with steel caps.
33 The plaintiff was taken to his Injury Claim Form[8] where it is said that his first report of the injury was on 8 November 2010. The form said it was reported to Colin Pavitt. He filled in the form with his wife and doctor. When queried as to the date, he said:
“That was a – they wanted to know when the injury occurred and they couldn’t figure out the actual time prior to this so they just said ‘We will go by the date there’.”[9]
[8]Exhibit C
[9]Transcript (“T”) 92, L20
34 The plaintiff said he did not put down that it was reported long before that because it was an ongoing injury.
35 He was taken to the medical records which showed that he made a complaint about problems with his feet in January 2010 but no further complaint until May 2010, although he attended the doctor on 19 April 2010 complaining of a fall from a ladder. He then, according to the records, did not attend the general practitioner again until 24 May 2010, and then not until 30 September 2010. In November 2010, he was told by Mr Wang that he needed an operation, and he disagreed that that was the first time he reported it to Boral. He thought he gave the medical certificate of 4 May 2010 to both Mr Blake and Mr Henderson. They were together.
36 The plaintiff disagreed that he did not produce the certificate of 4 May 2010 to Boral at all. He gave it to Travis Blake. He could not recall giving it to Mr Henderson.
37 The plaintiff said he changed his work boots regularly. He never tried sneakers. He saw other tradesmen wearing them and they were not soft at the back. He was told by the supervisors that if he suffered an injury and was not wearing safety boots, he would not be covered.
38 The plaintiff said he was told at induction to wear slip-on safety boots. He was worried about laces. He agreed the laces could be tied up or trimmed. He agreed he had climbed up ladders before wearing shoes with laces. He agreed he could have raised the matter with Boral to have lace-up boots, but he just did what he was instructed to do, which was to wear those safety boots. He did not consider wearing lace-up boots because he thought they were a tripping hazard and because of what was said at the induction.
39 The plaintiff agreed he signed the various agreements with Boral in 2003, 2006 and 2008.
40 In relation to him employing other workers to work with him for Boral, he said they had to be inducted by Boral and you had to have permission to bring other workers along.
41 The plaintiff agreed that between January and May 2010, there were occasions where he wore runners with laces. He would have worn them on some jobs using ladders.
42 In re-examination, he said that the invoice books which he used were given to him by Boral.[10] On any one day, he might have up to five different jobs at different premises and would work his way through the list. He was expected to start at 7.00am. There would be occasions where a job was required to be undertaken urgently. Boral needed to know where he was. He was called out to urgent jobs on a number of occasions. He did not work for any contractors other than Boral.
[10]Exhibit E
43 The medical certificates of January and May 2010 were provided to Boral. By January 2010, the plaintiff said his Achilles tendons were sore and there were lumps on the back of his heels. Before January 2010, he consulted an osteopath and podiatrist. The podiatrist was in Main Street, Melton, and he could not remember the name. He saw him, he thought, in 2008, possibly in November. The podiatrist provided inserts. He saw an osteopath in 2008 or 2009. That was the Western Regional Osteopathy Clinic. He received massage and was provided with orthotics, being insoles. He could not recall complaining to people at Boral before 2010.
44 Evidence was given by Dr Lyndon Best, general practitioner. He has treated the plaintiff over the years. He first saw him in 2005. He has seen the plaintiff at a number of clinics.
45 The plaintiff presented to Dr Best concerning his heels or Achilles tendons on 31 January 2010. He presented with a history that he had been suffering chronic heel pain and that he had been seeing a podiatrist to try to manage it.[11]
[11]T144, L4 – Dr Best was reading from his clinical notes.
46 On that occasion, Dr Best provided a certificate.[12] At the time, he knew the plaintiff was a plasterer.
[12]Exhibit A
47 He next saw the plaintiff on 24 May 2010, although noted that in the interim, another doctor within the clinic, Dr Toma Mikhael, had seen the plaintiff and provided a medical certificate.[13]
[13]Exhibit B
48 On 24 May 2010, Dr Best reviewed blood test results which had previously been ordered. An ultrasound for the Achilles tendons had been ordered but was not available. There was no examination nor treatment on that date.
49 Dr Best saw the plaintiff again on 5 November 2010 regarding his heels. By that time, he had been told by the orthopaedic surgeon, Mr Wang, to have surgery.
50 Dr Best left the practice in June 2011, and did not see the plaintiff again until June 2012.
51 According to a report to the insurer of 21 August 2012,[14] Dr Best said:
“Due to the nature of his condition it has been deemed necessary for him to wear specially designed shoes that remove as much of the stress from the insertion of Achilles tendons into the calcaneum as possible. This will then aid in reducing triggers for aggravation of pain and allow his condition to further rehabilitate. He will require x 1 pair for work and 1 x pair for casual use. … .”
[14]PCB 119
52 Dr Best said this footwear would remove as much as possible, stress, tension and pressure from the back of the shoes and prevent irritation of the Achilles tendon insertion.[15]
[15]T150, L25
53 According to his report of 22 August 2013,[16] the plaintiff presented with:
“Pain, swelling and tenderness to his heels in 2010 secondary to overuse through his work as a plasterer. He underwent surgery to remove a Haglund’s deformity in 2011 which failed to completely resolve the pain. …
Mr Govic’s condition is entirely related to his employment as he had to frequently use ladders in his plastering job and the stress of this caused to (sic) the insertions of his Achilles tendons was responsible for his condition.”
[16]Part of exhibit G
54 Dr Best said the predominant factors which contributed to his injury were the regular and chronic use of ladders, and having to support his weight through his feet, and carrying weights up and down ladders.[17] He said the boots appeared to contribute to the problem as well.
[17]T153, L24
55 According to a medical questionnaire Dr Best supplied to QBE, he described the injury as:
“Chronic left heel pain secondary to left insertional Achilles tendonosis, together with an Adjustment Disorder with Mixed Anxiety and Depression.”[18]
[18]PCB 123-5
56 Dr Best described the mechanics of the effect of the boots upon the Achilles condition as being the extension above the ankle and the enclosure of the structures in and around the ankle, pulling them tight. As a result, there would be stress, friction and pressure across the Achilles tendon when the foot was used.[19] He said a pull-on boot would have more elasticity than a lace-up boot.
[19]T156, L2
57 In cross-examination, he described the plaintiff’s problem as an inflammation in the area where the Achilles tendon inserts into the calcaneum, which is a bone at the back of the ankle. Some people get the condition, and others do not. Some are more susceptible to it than others. It can arise without the ankle being constrained in any way. If the ankle is enclosed tightly, it is likely to aggravate the condition.
58 Dr Best said the greater contributing factor to the problem was the supporting of bodyweight through the ball of the foot while on the rungs of a ladder.[20] By “rungs of the ladder”, Dr Best meant where either the front or back part of the foot protruded over the step of the ladder. The condition would be alleviated by not wearing footwear that enclosed the ankle, such as sneakers which go below the bony part of the ankle.
[20]T157, L10
59 In January 2010, Dr Best gave the plaintiff the medical certificate,[21] which said he would be unable to wear work boots for the whole of February 2010. His clinical notes of that day read:
[21]Exhibit A
“Chronic inflammation for rub of boots”
that is, inflammation above the cut of a shoe.
60 He suspected there was some chaffing of the boot affecting the inflammatory process.
61 In January 2010, the note read that the patient was to be reviewed as he (the patient) required.
62 The next attendance was on 19 April 2010 with Dr Mikhael, after the plaintiff had fallen from a ladder. There was a note there was inflammation from the rubbing of boots in the Achilles tendon area.
63 The next entry was 4 May 2010, which was for blood test results. On that occasion, it was noted that there was chronic Achilles tenosynovitis. Anti-inflammatory medication was prescribed, together with physiotherapy.
64 The next review was on 27 May 2010, which noted that the results of ultrasound tests were awaited. After that, there was a review on 30 September 2010 relating to blood examinations. Again, there was noted a degeneration of both Achilles tendons, with referral to a specialist, Mr Wang.
65 Then, on 5 February 2011, there is a note that the surgeon had suggested surgery to improve the heels. At that point, he knew that the problems with plastering was climbing a ladder, wearing high-cut boots and having to carry weights up and down ladders.
66 Dr Best said that if the plaintiff was doing a significant amount of walking or running, that would not have assisted his heel condition, and potentially made it worse.[22] The problem with climbing ladders was to have the heel supported on the step of a ladder. Dr Best suggested to the plaintiff that he should not wear boots that enclosed the ankle. He did this in January 2010. Dr Best said it was likely he would have mentioned to the plaintiff that elastic-sided boots were likely to be less aggravating than lace-up boots.
[22]T164, L29
67 In re-examination, Dr Best said that activities which involved an extra load on the Achilles tendon, such as taking bounding steps or jumping off a ladder, would be likely to contribute to extra stress on the Achilles tendons. Spending eight hours a day on his feet would have contributed to the development of his condition.
68 Evidence was given by Mr Otis Wang, an orthopaedic surgeon, specialising in foot and ankle surgery. He first examined the plaintiff on 22 October 2010 and received a history that the plaintiff had two years of bilateral heel pain. He saw an ultrasound which had been undertaken on 26 May 2010 which showed calcification around the Achilles tendon. This indicated degeneration at the insertion of the Achilles. There were visible bony lumps at the insertion. Mr Wang considered the plaintiff suffered insertional Achilles tendinopathy.
69 Mr Wang performed two operations: the first to the left Achilles tendon on 9 February 2011, and the second to the right on 15 June 2011. Approval was obtained from the insurer, QBE, who paid for each operation.
70 Mr Wang described the plaintiff’s condition as tendon degeneration which is wear and tear with repetitive action. The tendon is stretched and, with time, degenerates. Once established, the condition is degenerative and can be accelerated with activity.
71 In cross-examination, Mr Wang said in the first consultation, when he asked the plaintiff as to what had occurred, there was no reference to his work. The plaintiff did not say his work aggravated his condition. There was no one specific incident. Work-related issues were not specifically discussed. The plaintiff then said that he would make enquiries at work to see if the condition, and hence the surgery, could be covered by WorkCover.
72 Mr Wang said the plaintiff had Haglund’s deformity, which is a bony prominence at the rear of the heel. This was not the crux of the diagnosis but a congenital problem. It was like a “speed hump”. Activities which involved the stretching of the Achilles tendon were likely to aggravate the condition, including walking around a job site, jumping, lifting heavier loads, climbing steps and moving the ankle up and down. It would not necessarily occur with doing weights and warm-up exercises at a gym. It was likely the plaintiff had the Haglund’s deformity all of his life. The Haglund’s deformity was a factor in the progress of his degenerative tendonitis. Things that would rub on the bone would cause it to become inflamed.
73 Mr Wang did not go into the specifics of footwear with the plaintiff. Any type of enclosed shoe would affect the degenerate tendon. There were a number of steps which could be taken to try to alleviate the pressure, including a heel wedge, padding around the area, or wearing shoes which do not rub.
74 In re-examination, Mr Wang said that he did not specifically ask the plaintiff whether his condition was work-related but by inference, at the end of their consultation, the plaintiff linked the fact that he had the condition and said “maybe this is due to all this time I have been at work”.[23]
[23]T203, L5
75 Not all people with Haglund’s deformity come to surgery. A minority do. The more enclosed the shoe, the more the aggravation of the condition. Any type of footwear which rubs in the area would cause aggravation. A boot may be more enclosed.
76 Mr Wang said that the type of work performed by the plaintiff was related to his condition moreso than his general activities of daily living. Some people with Haglund’s deformity, who were not plasters, get heel problems. Elderly people get Achilles tendinopathy. In the plaintiff’s case, there was a link between his work and the degeneration.
77 Evidence was given by Mr Bill Contoyannis, a forensic engineer. He interviewed the plaintiff on 1 July 2014 and had available to him a range of material, including the plaintiff’s affidavit in support of the serious injury application, and a statement or letter to his solicitors.[24] The plaintiff described to Mr Contoyannis the work duties he performed as a plasterer, his work hours and the equipment he used. He was taken to three photographs from his report,[25] which depicted a number of types of “plasterers’ stools” and a “step-up”. He said the step-up was not ideal because it was not stable. The plaintiff told him that he could not recall specifically discussing the heel pain which developed, with his supervisors; however, he believed that he would have mentioned it when he was attending appointments with health professionals.
[24]Exhibit 5 – plaintiff’s notes
[25]Exhibit X
78 Mr Contoyannis concluded that the plaintiff performed a range of manual handling tasks which were difficult and awkward. He said the carrying of plaster, weighing up to 20 kilograms, increased the load to his Achilles area, in particular, when climbing onto plasterer’s stools and stepladders. Climbing onto stools carrying loads would have created large forces in the legs. Moving from a stepladder to a plasterer’s stool would have been unsafe. He was told by the plaintiff that he would have stood up onto a plasterer’s stool fifty to seventy times a day, and then down again, sometimes jumping. This would have put very high forces on the lower limbs. The impact of a jump can increase the forces applied to the lower body by between 200 and 500 per cent. A combination of repetitive or sustained postures, movements and forces carried out over a long duration constitute a risk of musculoskeletal disorder. He said that he considered that the plaintiff was placed at risk of injury, in that an unsafe level of mechanical stress was applied to the plaintiff’s lower limbs because of the frequent lifting, stepping up and jumping down tasks. He said the footwear may have contributed to the risk but that he was unable to say to what degree.
79 There were various measures available to Boral, including:
· Carrying out a review or audit of manual handling tasks conducted by the plaintiff and identifying any hazards
· Providing training in manual handling
· Encouraging employees to report symptoms of pain and discomfort
· Providing assistance to the plaintiff, in particular, in relation to large, heavy and awkward lifts
· Providing training in the use of stepladders and plasterer’s stools
· Providing scaffolding to enable the plaintiff to more easily move along when fixing plaster sheets or cornices
· Providing rest breaks.
80 In cross-examination, Mr Contoyannis said he was not told by the plaintiff that he had to carry 20-kilogram bags of plaster. The activities which the plaintiff spoke of were carrying sheets of plaster, and climbing on certain structures in ways that were awkward, including ascending and descending from a platform. He agreed the plasterer’s stools were not designed to be stood on. Jumping off a plasterer’s stool was risky. He could not say whether the step stool was inappropriate, as he had not seen it nor measured it. He accepted the plaintiff was not squatting, kneeling, crawling nor lying, as was set out in the Code. Further, it was not suggested that he was jumping for more than two hours, nor repetitively for 30 seconds at a time. Mr Contoyannis did not have information as to the frequency that he would stand with his body weight balanced on one leg. Reaching on one leg would put his Achilles tendon at risk, as does walking.
81 Mr Contoyannis agreed that the only criticism he could make of the tasks which imposed mechanical stress on the heels was jumping down from trestles and standing up onto trestles, in particular, while lifting a weight of 20 kilograms. He said a competent plasterer should not have used the plasterer’s stools, and then should not jump off them. His criticism was confined to the reach, the climbing up onto the trestles and to the jumping down.
82 In re-examination, Mr Contoyannis said that activities involving the plaintiff reaching and standing on the balls of his feet would expose him to a risk of injury.
83 Evidence was given by Dr Jade Harries, an osteopath. She first saw the plaintiff on 28 June 2010. The plaintiff had previously been seen at the clinic by another osteopath on 5 May 2008, although that was related to a problem with the plaintiff’s neck, shoulders, and headaches.
84 On 28 June 2010, the plaintiff presented with very swollen Achilles tendons and a sore calf. Previously, on 1 March 2010 at the clinic, the plaintiff had attended complaining that his Achilles tendons were very sore. On 24 March 2010, the plaintiff again attended and said his left Achilles tendon was sore. On 28 June 2010, Dr Harries recalled some discussion about possible causes which involved talk of the plaintiff’s work and leisure activities. She recalled the plaintiff describing his work as a plasterer, in particular, going up and down stairs and working on a ladder; the hours he worked were discussed, and carrying plaster and being on his feet for long periods of time. He said his work boots were quite heavy. Placing weight on a narrow step means that the whole of the foot does not take the body’s load and usually involves stepping up on the foot, which placed pressure on the ankle and calf. With repetition, that could affect the Achilles tendon.
85 In cross-examination, Dr Harries said the plaintiff attended on a number of occasions before March 2010 and there was no mention of the Achilles tendon. There was nothing in her notes or report about the discussion as to the cause of the Achilles problems. She could not recall when she was first asked to consider these matters. Pressure could be put on the Achilles tendons by walking on a treadmill for 5 to 10 minutes, going to a gym three to four times a week and doing squats and other gym work. However, the plaintiff’s work activities were more likely to have contributed to the Achilles problem.
86 On behalf of Boral, Mr Phillip Henderson was called to give evidence. In 2010, he was a contracts manager. He met the plaintiff on a number of occasions.
87 In May 2010, he met the plaintiff at a job. He was with his project co-ordinator, Travis Blake. The purpose was a “snap audit”, which was to ensure the contractors were conforming to occupational health and safety requirements. An audit document was completed.[26] Under the heading “Safety Footwear Worn”, a score of zero was entered with the reference – “doctor’s certificate”. Mr Henderson said he saw the plaintiff was wearing boots which he thought were steel-capped boots but the plaintiff himself told him they were not steel-capped and the reason was that he could not wear steel-capped boots. Mr Henderson said that he could get different styled steel-capped boots, or even sandshoe styled footwear. The plaintiff was wearing lace-up boots. Mr Henderson presumed the plaintiff did not like wearing them because they were heavy. He knew it was possible to get sandshoe-type safety footwear. The plaintiff said it was the steel-capped part that he was not allowed to wear.
[26]Exhibit 6
88 The plaintiff told Mr Henderson he had a doctor’s certificate stating that he could not wear steel-capped boots. Mr Henderson replied that was okay but asked him to provide a copy of that doctor’s certificate so it could be placed upon file and it was therefore not necessary to make an explanation in the future. Mr Henderson did not tell him that he required an up-to-date medical certificate.
89 A couple of days later, he saw the plaintiff again, at different premises. He was again with Mr Blake. The plaintiff did a bit of a jig and showed him that he was wearing steel-capped boots. Mr Henderson said “I didn’t think you were able to wear steel-capped boots”. The plaintiff replied that he thought he would “give them a go”. Mr Henderson said that it did not worry him if he did not wear steel-capped boots, all that he required was a copy of the certificate. As a result of this, Mr Henderson, some weeks later, wrote on the back of the certificate an explanation of what occurred.[27] The explanation said:
“A couple of days after this snap audit was done Travis Blake and I met up again with John on another job site. John pointed out that he was wearing steel-capped safety boots to both Travis and me. I asked John about his doctor’s certificate regarding not being able to wear steel-capped boots and he replied that he would give the steel-capped safety boots he was now wearing a try.”
[27]Part of exhibit 6
90 Aside from the above, there was no complaint to Mr Henderson on that or any other previous or subsequent occasion as to the plaintiff’s footwear. Mr Henderson was aware of lightweight sandshoe-type footwear with steel caps around 2010.
91 Mr Henderson was cross-examined. Contractors were not necessarily required to attend at jobsites at 7.00am, they may have other jobs on the day. The supervisors would provide the contractors with a list of jobs for the next day. The contractors were provided with invoice books, or they could use their own books. Mr Henderson had previously been himself a plasterer for eight or ten years. He had done all the same plastering duties as the plaintiff performed. The obligation was upon the supervisors or project co-ordinators to make sure that the contractors were compliant with occupational health and safety obligations. On any particular job, Boral would estimate the time that particular works to be carried out by the contractor would take.
92 Safety footwear had to be worn on jobsites. A range of matters had to be checked on the spot audit, including not only safety clothing, but equipment, work activities and risk management.
93 When he was a plasterer, he would use plasterer’s stools, as depicted in the photographs,[28] regularly. There was no problem from an occupational health and safety perspective with using them.
[28]Exhibit X
94 Mr Henderson did not follow up with the medical certificate, because when he saw the plaintiff a day or two after 4 May 2010, the plaintiff appeared to be satisfied with the new footwear, and there was no certificate required.
95 The contractors were provided with an occupational health and safety handbook and had to have it on site. There was also an industry safety induction card which they had to obtain. Aside from Mr Blake, the other supervisors were Colin Pavitt, John Domovski, Phillip McGee and Adam Tzavaras. They all supervised the plasterers. Mr Blake regularly used the plaintiff. There were regular meetings with the supervisors and Mr Henderson, mainly to discuss paying the plasters’ invoices.
96 There was training given to the contractors in manual handling by way of an induction video. The contractors had to provide their own equipment, although if high scaffolding was required, Boral would obtain it. Mr Henderson agreed that there was some work done by the plaintiff which could probably have been done more safely if two people were doing it.
97 The occupational health and safety requirements were imposed by Boral, by the builder and by building industry standards.
98 Evidence was given by Mr Travis Blake, an employee of Boral. In 2010, he worked for Boral as a project co-ordinator. He ran jobs and organised the maintenance. There were gangs of plasterers who would undertake plastering work to premises, and there were plaster repairers who would do repair work at those premises.
99 In 2010, Mr Blake saw the plaintiff almost every day, and gave him repair tasks to be undertaken at various worksites.
100 Mr Blake said that neither before nor after May 2010 had the plaintiff ever given him a medical certificate.
101 In May 2010, he was undertaking a snap audit with Phil Henderson at a site. The plaintiff was present and there was a discussion about his safety boots. The plaintiff said he had a doctor’s certificate for not wearing steel-capped boots. Mr Blake was pretty sure Phil Henderson asked him for it. The next day, he was seen at another site where he was working to patch up a hole. The plaintiff was wearing steel-capped boots which he pointed out. On that occasion, he did not produce any certificate. Mr Blake left Boral sometime between May and November 2010. The plaintiff made no complaints to him about trouble with his feet, nor did he say that he was unable to do the work because of problems with his feet.
102 In cross-examination, Mr Blake said that he had worked as a plasterer for about fourteen years before he became a supervisor with Boral.
103 In relation to time limits for work, the gangs of plasterers had to work with other tradesmen on the site to ensure the plastering work was done at an appropriate time. There was sometimes urgency in relation to the repairers if, for example painters or tilers had to come in the next day, it was important that the plaster repair work be completed. At other times, it was less urgent.
104 Part of his job was to ensure that the workplace was safe. If there was a mess, he would ring the builder and get them to clean it, or if it was only a small matter, he would do it himself. He acknowledged that there were risks of injury in plastering including reaching out to do wall plastering, reaching out using an electric sander and climbing up and down ladders. He knew the plaintiff had to lift plaster which sometimes required two people. He did not recall there being any big jobs that the plaintiff had to undertake. He knew it was important to record an injury if it happened at a worksite. He did not recall ever seeing the plaintiff limping. The first time he was asked to recall the conversations of May 2010 was about a week ago. He said the plaintiff did not ever provide a copy of a medical certificate because if it had been provided, he would have remembered. He did not think to ask the plaintiff after 4 May 2010 whether he had any further problems with his feet. He acknowledged that the plaintiff would have worn a high-visibility shirt as was shown to him.[29]
[29]Exhibit CC
105 The work done by the plaintiff mainly involved repairing holes, replacing cornices which needed to be removed and hanging plaster in garages and porches. The hanging of the plaster in garages and porches could only be done after other tradesmen had finished.
106 Evidence was given by Mr Colin Pavitt, who was the project co-ordinator for Boral in 2010.
107 In November 2010, the plaintiff mentioned to Mr Pavitt that he had some issues with his feet, had been to the doctor and was going to have operations. He said he was going to get some forms from the doctor and it was going to be a WorkCover thing. Prior to that, he did not ever complain to Mr Pavitt of any problem with his feet. Mr Pavitt used the plaintiff from time to time as a plasterer. He could not remember any complaint before 2010 to him by the plaintiff in relation to his feet. He could not remember anyone giving him any information about the plaintiff’s feet. If he had have been told that, he would have told the plaintiff to go and see a doctor. He could not recall seeing the plaintiff limping in 2009 or 2010.
108 Finally, on behalf of the Boral, evidence was given by Mr Adam O’Neill. He works as a maintenance contractor for Boral. He has been in that position for approximately two-and-a-half years. Approximately five years before that, he commenced with Boral as a contracts co-ordinator. He was a qualified plasterer. In the course of his plaster work, he worked for other employers, as well as Boral. He started work at 7.00am or 7.30am but it was up to him to determine when to start. He signed a subcontractor agreement. He did not always finish at the same time.
109 When he worked as a contracts co-ordinator, he said that some plasterers finished earlier if they wanted to. He took days off but would usually notify the supervisor as a matter of courtesy. He was not given sick pay, long service leave or other allowances.
110 He said the maintenance plasterers did rectification work and for a period when he was the contracts co-ordinator, he was responsible for checking the invoices they submitted. At that time, he would instruct the plasterers what to do. Most were experienced and did not need to be told how to do jobs. The subcontractors were expected to do their own risk assessments, and there was provision in the invoice for that to be completed. He wore the safety boots which were supplied by Boral. If he did not wear safety boots, there “would be repercussions”. Normally work started on the jobs at 7.00am. Certain tasks had to be completed within timeframes. The plasterers generally had their own equipment, although sometimes scaffolding was provided if they were working at a height.
Was the Plaintiff an employee or an independent contractor?
111 Aside from a period from approximately November 2001 until June 2003 when he was employed as a supervisor, the plaintiff, since 1999, was retained by Boral as a “repair plasterer”; that is, he was retained to effect plaster repairs and similar work at residential premises where Boral had contracts with builders.
112 Until November 2010, when he left employment because of the injuries to his left and right Achilles tendons, the plaintiff worked exclusively for Boral, although on occasions on the weekends in the later years, he did some work for other people. He generally worked from 7.00am to 3.00pm and conceded in cross-examination, if he had finished his work early, he could go home early. It was put to him that if he wished, although he did not employ any other people to work with him, he could do so. He said he would need permission from Boral to do that, and those persons would have to be subject to an induction program.
113 The plaintiff provided all of his own plastering equipment, save in respect of some scaffolding and the odd tool, which was obtained from other tradesmen or from Boral. The plasterboard and other materials used in his work was purchased from Boral.
114 The means by which the work was undertaken was that the plaintiff would be provided with a list of jobs at various sites by one of a number of supervisors, in particular, Mr Travis Blake. The plaintiff would meet Mr Blake at a jobsite, or would be faxed the listed jobs to be undertaken beforehand. Mr Blake or another supervisor would tell the plaintiff what was to be repaired, and whether plaster was to be removed or patched. He would then leave it to the plaintiff to carry out the work. The plaintiff was a reliable tradesman who could be trusted to properly complete the repair work.
115 Generally, the plaintiff was paid a unit price for various work that was undertaken. That unit price was set out in the Boral tax invoice book with which the plaintiff was provided, and he was required to complete that invoice in respect of any particular job and submit it to Boral. He was paid on the basis of the invoice. In addition to the item amounts, in the later years particularly, he was paid an hourly rate for work which was not the subject of items described in the invoice. He was also paid a call-out fee. On occasions, when a job was urgent, he would be required to “drop tools” and attend another site to perform those urgent repairs. He was required to wear a high-visibility t-shirt[30] with the “Boral” insignia on the left side, and his Christian name on the right side.
[30]Exhibit CC
116 He was the subject of spot audits conducted by managers and supervisors. In evidence, Mr Henderson said that these audits were to ensure that the plasterers were conforming with Boral’s occupational, health and safety requirements. The plaintiff and the other plasterers were also required to undertake an induction course and to have available on site Boral’s Occupational Health and Safety Handbook. The plasterers themselves were required to undertake site risk assessments and make appropriate notations on the invoice books.[31] It was a requirement that the plaintiff wear personal protective equipment, including safety work boots, although it was up to the plaintiff to purchase his own work boots.
[31]Exhibit E
117 Throughout his work as a repair plasterer, the plaintiff was responsible for the payment of his own tax. He was not paid sick leave, holiday pay, nor did Boral contribute any superannuation. He paid for his own vehicle and petrol, and claimed those expenses as a taxation deduction. He was not required to fill out timesheets. He traded under a business name “Protech Plastering”, and the business was operated through a family trust through which he distributed income to his family.
118 Throughout his evidence, the plaintiff referred to himself, and other repair plasterers, as “subcontractors”. The plaintiff signed three “Subcontract Agreements” dated respectively, 25 February 2003, 19 July 2006 and 14 November 2008.[32] The various agreements contained provisions, including:
[32]Exhibits 1, 2 and 3
· That the subcontractor would maintain accident compensation and other insurance in respect of any employees, public liability insurance and contractor works insurance.
· The subcontractor would be responsible for any damage at any worksite and was required to keep worksites in a tidy and safe condition.
· Each agreement stated that the relationship between Boral and the subcontractor was that of a contractor and independent contractor.
· Termination of the agreement could be effected upon appropriate notice.
· The subcontractor would indemnify Boral from any loss, damage or expense as a result of any claim or demand by any person relating to the performance by the subcontractor of works carried out upon the site.
· The subcontractor had the right to engage suitably qualified persons to carry out work.
· The subcontractor was to comply with all applicable rules and legislation, including the Occupational Health and Safety Act.
119 The test as to whether a person is an employee or a subcontractor has been considered by the Courts on many occasions. The earlier authorities considered that the ability to “control” is a significant factor in establishing the nature of the employment relationship. However, later authorities have recognised that control, or at least the right to exercise control, is only one of a number of possibly relevant factors in determining the issue.[33]
[33]See Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Humberstone v Northern Timber Mills (1949) 79 CLR 389; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Australian Mutual Provident Society v Chaplin & Anor (1978) 18 ALR 385; Elazac Pty Ltd v Shirreff [2011] VSCA 405
120 In Hollis v Vabu Pty Ltd,[34] the High Court considered the nature of an employment relationship. The majority of the Court found that, under Australian conditions, conduct of an enterprise in which persons are identified as representing that enterprise, should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise. In considering the question of control, the majority of the Court endorsed the earlier comments of Mason J in Stevens:[35]
“… the common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it ‘so far as there is scope for it’, even if it be ‘only in incidental or collateral matters’. …
Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered.”
[34]Supra
[35]Supra at paragraph [29]
121 In Elazac Pty Ltd v Sherriff,[36] the Court of Appeal referred to a number of factors to take into account in determining the nature of the relationship of employment, including:
[36]Supra
“(a) the degree of control which the former can exercise over the latter;
(b) whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c) whether or not the person engaged can set their own hours of work;
(d) the method of payment (and, in particular, whether payment is determined by hours of service or output or production);
(e) whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f) whether or not the person engaged employs employees and/or conducts his business in partnership;
(g) whether or not there is a power to delegate (send someone else to perform the work); and
(h) whether or not the person engaged considered the relationship as one of independent contractor.”[37]
[37]At paragraph [30]
122 In that case, the Court of Appeal found that the principal did not exercise control over the worker as to how the work was to be performed. Although he was able to allocate particular tasks, the principal could exercise significant control and when something had to be done urgently, it was done. However, the principal took no particular interest in the manner in which the task was done. Further, the worker employed his own employees and did work for a range of other entities. The worker considered himself to be self-employed, although there was no particular subcontract agreement.
123 It is clear from the decision in Elazac that the whole relationship, its nature and circumstances must be examined. The manner in which the work duties are to be undertaken, and the extent of supervision and control are all relevant.
124 In The Catholic Child Welfare Society & Ors v Various Claimants and The Institute of the Brothers of the Christian Schools and Ors,[38] the English Court of Appeal said:
“In days gone by, when the relationship of employer and employee was correctly portrayed by the phrase ‘master and servant’, the employer was often entitled to direct not merely what the employee should do but the manner in which he should do it. Indeed, this right was taken as the test for differentiating between a contract of employment and a contract for the services of an independent contractor. Today it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the relationship between employer and employee. Many employees apply a skill or expertise that is not susceptible to direction by anyone else in the company that employs them. Thus the significance of control today is that the employer can direct what the employee does, not how he does it.”[39]
[38][2012] All ER(D) 238; [2012] UKSC 56
[39]At paragraph [36]
125 In Boehm v Strongback Pty Ltd,[40] Beach J[41] dealt with a factual situation not dissimilar to the present case. In that case, the plaintiff was paid an hourly rate plus GST. He worked on various building sites. While performing work for the principal, the plaintiff did not perform work for anyone else. He started at 7.30am and finished at 4.00pm, with a lunch break. He provided his own tools. He did not quote for jobs, did not purchase materials and did not deal with customers. The principal would inform him each working day where he was to go. The principal was an experienced carpenter but the worker had control over what he did on any particular site. The worker had his own Australian Business Number but did not carry on business under a business name. He took out his own insurance and made his own provision for long service leave. There was no contribution to superannuation or holiday pay by the defendant.
[40][2011] VSC 463
[41]As his Honour then was
126 Having considered the authorities, and the principals enunciated in Shirreff,[42] his Honour concluded that looking at the totality of the relationship between the plaintiff and the defendant, that he was “well satisfied” that the plaintiff was an employee of the defendant. He noted the plaintiff was essentially employed full time by the defendant, although paid an hourly rate. He was expected to attend full time and to perform all the necessary work. His Honour noted he could be directed as to the work to be performed.
[42]Supra
127 In my view, there are distinct similarities between the situation in Boehm[43] and the present case. The first matter of significance is that Boral had essentially control of the workplace, and directed the plaintiff as to what work had to be undertaken. It would direct the plaintiff where to go and the specifics of the plastering work to be carried out. It was, as one might expect of an experienced tradesman, the plaintiff’s decision as to how precisely the work was to be undertaken. Boral laid down requirements as to occupational health and safety and conducted spot audits. If the plaintiff did not comply, he would answer to Boral.
[43]Supra
128 Further, the plaintiff could be directed to leave one worksite and attend another. He worked almost exclusively for Boral, and I accept his evidence that he started at 7.00am and finished usually at 3.00pm. He had no other employees, wore Boral apparel and purchased his materials from Boral.
129 Like Beach J in Boehm,[44] I am “well satisfied” that when regard is had to all of the circumstances, the true nature of the relationship between the plaintiff and Boral was that of employer and employee. The fact that each of the subcontract agreements purports to make that the relationship one of contractor and subcontractor, does not override the reality of the relationship and the common-law test. A mere statement purporting to establish the nature of the relationship cannot be binding upon a court. While the contracts did require the plaintiff to undertake insurances and provide indemnities, and it is further clear that the plaintiff was responsible for his own tax, and was not provided with long service leave, holiday and sick pay and superannuation contributions, nonetheless, the essential relationship was one of employer and employee. The real control of what occurred and how it occurred at any worksite, and role the plaintiff played there, lay with Boral.
[44]Supra
130 Mr Morfuni, for the plaintiff, further argued that the acceptance of the plaintiff’s WorkCover claim,[45] the payment of weekly compensation and medical and like expenses pursuant to the Act and the issue by QBE of a certificate pursuant to s134AB(16)(a), all stand as an admission that the nature of the relationship between the parties was of employer and employee. In support, Mr Morfuni referred to the principles established by Ansett Australia Ltd v Taylor.[46]
[45]Exhibit D
[46][2006] VSCA 171 at paragraphs [38]-[40]
131 Because of my findings as to the nature of the relationship between the parties, I am not called upon to determine whether the matters referred to constitute admissions. However, Ansett was concerned with whether, by accepting a claim for compensation, an employer was seen to admit an injury occurred in compensable circumstances. That, as an admission, is significantly distant from whether, under the same circumstances, such conduct is an admission of the nature of the employment relationship.
The complaints made by the Plaintiff to Boral about his injuries
132 The plaintiff said that he first began to experience problems with his heels in 2006.[47] This came on when he was carrying heavy materials, going up and down ladders, and stretching to do plastering work on walls and ceilings. He was wearing steel-capped safety boots at the time. As a result, he said that he went to his osteopath, who provided stretching and massage, and also went to a podiatrist, who provided heel raisers or innersoles. This evidence stands in some contrast to the evidence of the osteopath, Dr Jade Harries. According to the records of her clinic, the plaintiff first consulted there in May 2008 with problems with his neck, shoulders and headaches. It was not until March 2010 that he complained of Achilles tendons soreness. There was no evidence provided by the podiatrist, who the plaintiff said he could not locate.
[47]T39, L3
133 On a number of occasions, the plaintiff said he “would have” complained to his supervisor because of the problems with his heels. He said that was particularly so, as he would limp around a worksite. However, he conceded that he could not recall making any such complaint, nor the person to whom he made it.[48]
[48]T133 – T134
134 According to the defendant’s witnesses, no such complaint was made. Mr Henderson said that the first time he was aware of any complaint of problems with the plaintiff’s footwear or heels was May 2010, and that was in relation to the steel capped part of the boot. In 2010, the supervisor, Mr Travis Blake, saw the plaintiff almost every day. He had never received any medical certificate, nor did the plaintiff complain to him about any problem with his heels or safety boots, save when he was with Mr Henderson on site in May 2010. Mr Colin Pavitt received no complaints. He could not recall the plaintiff limping in 2009 or 2010.
135 The plaintiff was first seen at Dr Best’s clinic in 2005. The first record of any complaint about a heel was on 31 January 2010. The plaintiff said that he was suffering chronic heel pain and that he had been seeing a podiatrist to try to manage it. Dr Best noted that the Achilles tendon was tender and inflamed. He suggested anti-inflammatory gel and that the plaintiff abstain from using his work boots for a month. He provided a medical certificate to that effect.[49] The next recorded consultation in relation to the plaintiff’s heels was April, and then May 2010, when an ultrasound was conducted. A further medical certificate was provided on 4 May 2010.[50] The next occasion Dr Best saw the plaintiff was on 5 November 2010,[51] by which time the plaintiff had seen the surgeon, Mr Wang. It is likely he saw another doctor in the clinic in October 2010 and was referred to Mr Wang.
[49]Exhibit A
[50]Exhibit B
[51]T145 L20
136 The plaintiff first saw Mr Wang on 22 October 2010, although he did not provide any specific history that his work duties caused or aggravated his heel problems.
137 On 8 November 2010, the plaintiff completed a WorkCover Injury Claim Form.[52] According to that form, the plaintiff said that he first reported the injury on 8 November 2010.
[52]Exhibit C
138 The plaintiff said that he provided the medical certificate of January 2010 to a supervisor, although he could not recall who it was. He said he handed it to the supervisor on a jobsite.
139 On 4 May 2010, there was a “spot audit”. The audit was carried out by Mr Henderson, and Mr Blake was present. According to the plaintiff, he told Mr Henderson that he had a doctor’s certificate.[53] The plaintiff said Mr Henderson required him to obtain a new certificate, and that in the interim, he was required to continue to wear safety boots. The plaintiff said he then got the certificate later that day, and the next day, handed it to Mr Blake. The spot audit disclosed that the plaintiff was not wearing his safety boots on 4 May 2010.
[53]T43, L10
140 The evidence of Mr Blake and Mr Henderson of what occurred on those two occasions was different from that given by the plaintiff. Mr Henderson said he saw the plaintiff was wearing boots which looked like safety boots, but he was told by the plaintiff they were not. According to Mr Henderson, the plaintiff said that he was not allowed to wear the steel-capped boots and that he had a doctor’s certificate to that effect. Mr Henderson said that he requested the plaintiff provide him with a copy of that certificate so it could be placed upon the file. He denied asking for an up-to-date certificate, or being told of any earlier certificate. Mr Henderson said a couple of days later, he was again on site with Mr Blake and saw the plaintiff. Mr Henderson said the plaintiff did a “jig” and showed him that he was wearing steel-capped safety boots. When Mr Henderson commented that he did not think he was able to wear such boots, the plaintiff said that he would “give them a go”. As a result, Mr Henderson made the endorsement on the back of the audit report, recording the incident.
141 According to Mr Blake, he was present at the snap audit of May 2010. He recalled a discussion about safety boots and the plaintiff said that he had a doctor’s certificate which allowed him not to wear the steel-capped boots. The next day on site at other premises, the plaintiff was wearing steel-capped boots but he did not produce any certificate.
142 To the extent there is a divergence in evidence between the plaintiff, on the one hand, and Mr Henderson and Mr Blake on the other, I prefer the evidence of Mr Blake and Mr Henderson. I was impressed by the evidence of both witnesses. Both gave evidence in a straightforward manner, making appropriate concessions. The plaintiff’s evidence was rather vague and unimpressive as to his recollection of what occurred, in particular, the complaints he made.
143 I accept the evidence of the Boral witnesses that the plaintiff made no complaints to any supervisors of work of any problems with his feet or Achilles tendons until May 2010. It is clear that he obtained medical certificates both in January and May 2010, but I am not satisfied he provided them to any Boral supervisors. It is somewhat unusual that he would obtain certificates but not provide them, but I take it that he considered that he would wear safety boots at some times and other footwear at others, but that he had the certificate available in the event that he had to explain the fact that he was not wearing safety boots. I further accept that the plaintiff did not produce the certificate to Mr Blake or Mr Henderson on 4 May 2010 or within days after that. I conclude there was never any medical certificate provided to Boral. I accept that when he saw those gentlemen, the plaintiff did in fact say that he was back wearing safety boots, presumably a new pair, and that he was going to try them out. His “jig” was an indication that all was relatively well with his feet. I am thus satisfied that it was not until May 2010 that there was any complaint of any problem with the plaintiff’s feet or heels. I am further satisfied, there was no further complaint until November of that year, after the plaintiff had consulted Mr Wang and faced the prospect of surgery.
Was there negligence on the part of the Defendant which was a cause of the Plaintiff’s injury?
144 As an employer, Boral was under a duty to take reasonable care against the risk of foreseeable injury in the workplace. The duty extends to providing safe plant and equipment, to provide adequate training and supervision, and a safe system of work. The duty should also take account of inadvertence or even negligence on the part of an employee. In fact, in the modern work environment, there is a positive duty to take reasonable steps to ensure accidents and injury do not occur.
145 In order to determine whether there was a breach of the employer’s duty, it is necessary to assess the tasks the plaintiff was required to perform in the course of his employment duties and the injury he suffered. He was an experienced and competent plasterer and well knew how to perform the duties he was allocated. Those duties included the following:
· Using a plasterer’s trowel to effect plaster repairs to holes in the walls and ceilings of premises. He did this work until 2004 or 2005;[54]
[54]T28, L18
· On occasions, the plaintiff had to replace cornices, which would require him to stand on ladders, or scaffolding. This would require him to work with his hands above his head. On occasions, he would have to spring from a ladder onto his “benches”;[55]
[55]T34, L4
· He would carry 20-kilogram bags of cement on almost a daily basis;[56]
[56]T34, L21
· The work with the cornices required him to apply plaster and then carry the cornice up a ladder;[57]
[57]T35
· On occasions, he was required to carry sheets of plaster inside the house and then cut it to length. The plaster sheets would weigh between 10 and 20 kilograms. He would, on occasions, lift the plaster sheet to the wall using his foot;[58]
[58]T37
· He was required to wear steel-capped safety boots on site;
· His work required him to climb up and down ladders regularly;
· The plasterwork on ladders or stools required the plaintiff often to stretch in order to apply the plaster. The work on ladders meant that the whole of his foot was not used to support the weight of his body. This led to some dorsiflexion at the ankle.
146 Mr Wang, the plaintiff’s treating surgeon, described the plaintiff as suffering insertional Achilles tendinopathy. He said the plaintiff’s Achilles tendon had degenerated and calcified. This occurred as a result of wear and tear occurring in repetitive action.[59] Progressive activity can accelerate and deteriorate the condition.[60]
[59]T184, L24
[60]T185
147 At the outset, when the plaintiff consulted Mr Wang, he did not say that any particular work duties aggravated his condition.[61] However, Mr Wang said that because the plaintiff had a long history of being a plasterer, an application was made for WorkCover.
[61]T194, L5
148 Mr Wang said the plaintiff suffered Haglund’s deformity, which was a congenital problem and was like a “speed hump” on the back of the heel or calcaneus.[62] He said activities which tended to stretch the tendon were likely to aggravate the condition. Other activities which might aggravate the condition included jumping, lifting heavier loads, hyperdorsiflexion of the ankle in an up and down motion. Carrying loads, walking around a jobsite and climbing steps would be likely to aggravate the degenerative process in the heels.[63] The Haglund’s deformity predisposed the plaintiff to the condition.[64] Many people have Haglund’s deformity without symptoms, but the difference for the plaintiff was that he had degeneration of the tendons. The Haglund’s deformity was a factor in the progress of his degenerative tendonitis.[65]
[62]T197, L22
[63]T198, L18
[64]T199, L12
[65]T200, L1
149 Mr Wang said that the type of work the plaintiff undertook as a plasterer was a greater factor in the aggravation of his condition than his general day-to-day activities.[66]
[66]T204, L21
150 I conclude from the medical evidence, particularly that of Mr Wang, that the plaintiff had a degenerative process to the Achilles tendons of both heels. To some extent, that degeneration was contributed to by the plaintiff’s constitutional deformity, being the bony process across both heels, or Haglund’s deformity. However, it is clear from the evidence of Mr Wang that, even although the plaintiff did not identify his work duties as aggravating the condition at the outset, activities which required repetitive stretching of the ankle, such as climbing up and down ladders, and stretching for plaster, aggravated it. In submissions, Mr Curtain said that the plaintiff’s underlying degenerative condition, in combination with the deformity, would have led the plaintiff to the same condition he is in today regardless of the workplace activities.[67] However, there was no medical evidence to that effect and I am left with the evidence of Mr Wang, which I accept, that a range of activities in the workplace aggravated the condition.
[67]T391
151 As stated, I am satisfied Boral was only on notice of the problems with the plaintiff’s heel from May 2010. The plaintiff ceased work in November 2010. It was thus only those six months during which Boral had the opportunity to act upon the plaintiff’s complaints.
152 However, I accept the evidence of Mr Henderson that within several days of the spot audit, the plaintiff did not produce a further medical certificate and told Mr Henderson that he was trying a new set of boots. The plaintiff’s actions of the day said nothing as to any significant ongoing problem, rather something that was not particularly troublesome. For Mr Henderson and Mr Blake to do nothing in the circumstances was, in my view, not unreasonable. They had been apprised of a problem with the plaintiff’s boots, but he appeared to be coping by trying a new set of boots, and made no further complaint between May and November 2010. Nor am I satisfied that the plaintiff had a limp or a gait such as was to make it obvious to anyone present there that he had a problem. It was thus not unreasonable for the supervisors to take no further action notwithstanding what transpired at the spot audit on 4 May 2010.
153 The evidence of the plaintiff as to the duties he undertook in the course of his employment were regular, unexceptional duties that plasterers would be expected to undertake in the course of their average working day. On occasions I accept the plaintiff had to lift relatively heavy loads, at times work in awkward positions, and regularly walk up and down ladders, and the like, which caused flexion of the Achilles tendon.
154 Mr Morfuni pointed to the evidence of Mr Contoyannis as to the various measures available to Boral which it could have taken to prevent the risk of injury.[68] The description of the duties the plaintiff told Mr Contoyannis he undertook were somewhat different to those he described in evidence. He told Mr Contoyannis he was up and down plasterer’s stools fifty to seventy times a day. In evidence, he said he was up and down ladders daily.[69] He said he would jump from his scaffolding or platform (which I take to be something akin to plasterer’s stools) in order to fix cornices, while to Mr Contoyannis he said he would jump up and down from the stools to the floor from a height of 600 millimetres.
[68]See paragraph 79 above
[69]T33 L13
155 According to the affidavit of the plaintiff filed in support of his serious injury application,[70] the activities of which he complained as causing injury were walking on uneven ground, meeting tight deadlines, enduring long hours in heavy work boots, climbing ladders and carrying around a heavy toolbox. According to a letter to his solicitors,[71] he listed various activities in the workplace including wearing work boots, save when he was required to work on a concrete slab; overstretching over kitchen and bathroom basins; the requirement to work in the heat, rain and mud and amongst rubbish; working without running water and power; working without supervision; hanging plasterboard by himself when the job required two persons; meeting deadlines; overstretching to do the plasterwork; carrying large plaster boards on his own; parking 50 to 100 metres from the job; difficulty gaining access to the job; picking up materials from other job sites, and long hours of work.
[70]Exhibit t
[71]Exhibit 5. The document was provided to Mr Contoyannis
156 While this list of duties could not, given the context of the letter, be said to be the precise duties which the plaintiff regarded as causing or aggravating his heel problems, nonetheless, given this document, his affidavit and the history to Mr Wang as to the lack of any correlation between his work duties and his heel problems, leaves the distinct impression the plaintiff was casting about attempting to find work tasks which could support his WorkCover claim.
157 While the measures referred to by Mr Contoyannis may have been available, in my view, there was nothing to alert Boral that the failure to take such steps carried the risk of injury to the plaintiff. As stated, all of the tasks performed by the plaintiff were the tasks normally expected of plasterers carrying out their duties.
158 I am not satisfied that there was anything unreasonable about the conduct of Boral in requiring the plaintiff to carry out the duties in the manner he did. The touchstone of the duty is reasonableness, not a standard of perfection. Had the plaintiff suffered an injury to his lumbar spine caused by repetitively lifting heavy articles, and there was a causal connection between that lifting and injury, then it would be clear an employer would be in breach of its duty to provide a safe workplace. But in the present case, the circumstances are decidedly different. The plaintiff suffered from a degenerative condition in his heels which was aggravated by the workplace activities. There was really nothing to suggest to Boral that any of those activities was likely to result in injury to the plaintiff, even notwithstanding the plaintiff complained to Mr Henderson on 4 May 2010. Boral did not know of the plaintiff’s condition which made him susceptible to such an injury, nor that his duties may aggravate the condition. Had it known, then it may have been negligent in allowing him to perform duties which were likely to stretch the Achilles tendon. But it had no such knowledge. The only knowledge came when the plaintiff complained on 4 May 2010 to Mr Henderson that he was unable to wear work boots and had a medical certificate. That was different from knowing the plaintiff had a condition that was likely to be aggravated by work duties, in particular, those which resulted in the stretching of his Achilles tendons. Further, the problem appeared to have ameliorated a day or two later when the plaintiff said he was trying a new set of boots and did not produce the medical certificate, which had been requested.
159 In the circumstances, I am not satisfied, the onus being with the plaintiff, that there was any breach of the duty of care owed by Boral.
Breach of the Regulations
160 Mr Morfuni submitted that Boral was in breach of the Regulations which constituted an element of negligence on its part, and a breach of the statutory duty owed. If Boral was in breach of its statutory duty, and that breach was a cause of the plaintiff suffering injury, then the reasonableness or otherwise of the conduct of Boral is irrelevant. Once a breach is established, the plaintiff is entitled to damages for the injuries causatively related to that breach.
The 1999 Regulations
161 The plaintiff alleges Boral was in breach of Regulations 7, 12, 13, 14 and 15 of the 1999 Regulations. “Hazardous manual handling” is defined in Regulation 13, relevantly, to mean:
“(a) manual handling having any of the following characteristics—
(i) repetitive or sustained application of force;
(ii) repetitive or sustained awkward posture;
(iii) repetitive or sustained movement;
(iv) application of high force;
(v) …
(b) … .”
162 The evidence is not particularly clear as to the regularity with which the plaintiff performed the various work tasks and whether or not those tasks required the application of high force. Nevertheless, I shall presume that the tasks performed by the plaintiff satisfied this definition.
163 Regulation 13 requires an employer to identify any task involving hazardous manual handling.
164 Regulation 14 provides an employer must assess any such task to determine whether there is a risk of musculoskeletal disorder occurring as a result of the performance of that task. That assessment should take into account:
“(a) postures adopted;
(b) movements undertaken;
(c) forces exerted;
(d)…
(e) the duration and frequency of the task.”
165 Regulation 15 provides an employer must ensure that any risk of musculoskeletal disorder is eliminated or reduced as far as practicable.
The 2007 Regulations
166 The plaintiff alleges Boral was in breach of the 2007 Regulations, in particular, Regulation 3.1.1, 3.1.2 and 3.1.3. The 2007 Regulations have the same definition of hazardous manual handling as the 1999 Regulations.
167 Regulation 3.1.1 requires an employer to identify any task which involves hazardous manual handling.
168 Regulation 3.1.2 requires an employer to ensure the risk of a musculoskeletal disorder associated with the hazardous manual handling task is eliminated as far as is reasonably practicable or reduce that risk so far as is reasonably practicable.
169 Regulation 3.1.3 requires an employer to review any measures taken to control risks.
170 On behalf of Boral, Mr Curtain submitted that even if a risk assessment had been conducted, it would not have disclosed that the tasks being performed by the plaintiff led to a risk of him sustaining a musculoskeletal injury.
171 Even although it has been held that legislation concerned with furthering industrial safety is “to be construed so as to give the fullest relief which the fair meaning of the language will allow”,[72] I have concluded that there has been no breach of the Regulations by Boral. The focus of the Regulations is to undertake an assessment of employment tasks and to determine whether those tasks are any risk of causing musculoskeletal injury.
[72]See Boehm (supra) at paragraph [52]; Nettle JA in R v ACR Roofing Pty Ltd (2004) 11 VR 187 at paragraph [43]
172 There is no evidence Boral undertook an assessment of the plaintiff’s tasks at any time during the course of his employment.
173 Even accepting that failure is a breach of the Regulations, there must be a causative relationship between the breach and the plaintiff’s Achilles tendons injury. Had Boral carried out a risk assessment of the plaintiff’s various duties, either before or after May 2010, what would it have revealed? It is necessary to bear in mind the medical evidence, in particular of Mr Wang. The plaintiff had a degenerative condition in his Achilles tendons which, until May 2010, was not known to Boral. The Haglund’s deformity was also a factor involved in the onset of injury. Mr Wang said that the various work tasks, in all probability, aggravated the condition.
174 There is always a risk on a worksite where reasonably strenuous activities are performed, that an employee may suffer some musculoskeletal injury. A prolapsed disc can occur as a result of a jolt from stepping off a kerb. An injury to the supraspinatus tendon of a shoulder may occur when force is applied by an arm, even on a single occasion. A muscle or tendon can be strained and damaged as a result of a reasonably innocuous event. The key words of the Regulations are:
“… whether [in assessing a hazardous manual handling task] there is any risk of a musculoskeletal disorder affecting an employee occurring as a result of that task.”
- Regulation 14(1) of the 1999 Regulations; and
“An employer must ensure that the risk of a musculoskeletal disorder associated with a hazardous manual handling task affecting an employee is eliminated so far as is reasonably practicable.”
- Regulation 3.1.2 – 2007 Regulations.
175 “Musculoskeletal disorder” is defined in both regulations:
“… means an injury, illness or disease that arises in whole or in part from manual handling in the workplace, whether occurring suddenly or over a prolonged period of time … .”
176 Relevantly in this case, the assessment is as to the plaintiff’s Achilles tendons. There must, in my view, be a reasonably practical consideration given to the task the Regulations require an employee to perform. If Boral had performed a risk assessment, in my view, it would not have resulted in a reasonable conclusion that there was any risk of an injury to the plaintiff’s Achilles tendons from the tasks he was required to perform. It cannot be the obligation of an employer in a modern safety-conscious workplace, to make a physiological assessment of an employee’s body to determine whether any task or series of tasks might lead to damage to a tendon. In an employee with a degenerate condition, that would require assessment by a medical professional. What was evident to the employer in this situation were tasks which were relatively common and straightforward for plasterers to perform. Any risk assessment of those tasks would not, given the plaintiff’s condition, reasonably have suggested any risk of injury to his Achilles tendons.
177 In my view, that situation did not change after May 2005. The plaintiff complained of problems with his feet, but then within a day or two, told Mr Henderson that he was trying out new boots, even performing a jig to demonstrate that all was relatively well. I accept the evidence of Mr Henderson that the problem was with the steel capped part of the boot rather than the heel. There was nothing at that stage to suggest the plaintiff had suffered an injury to his Achilles tendons.
178 In all these circumstances, I am not satisfied that there has been a breach either of the 1999 or the 2007 Regulations.
179 Accordingly, the plaintiff’s claim fails.
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