Healey v Penrith City Council; Healey v Ussher; Healey v GIO General Limited
[2014] NSWSC 723
•30 June 2014
Supreme Court
New South Wales
Medium Neutral Citation: Healey v Penrith City Council; Healey v Ussher; Healey v GIO General Limited [2014] NSWSC 723 Hearing dates: 4 - 8 November 2013 Decision date: 30 June 2014 Jurisdiction: Common Law Before: Adams J Decision: Catchwords: TORTS - heavy loads - worker injured - liability of contractor for contractee's employee - duty of care - joint tortfeasors - insurer of liquidated company - applicability of policy exclusions Legislation Cited: Workers Compensation Act 1987 (NSW), s 151Z(2)
Corporations Act 2001 (Cth), s 601AG
Civil Liability Act 2002 (NSW), 5B, 42Cases Cited: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161; (2006) 227 ALR 46; (2006) 80 ALJR 900 Category: Principal judgment Parties: 2007/292443:
Ralph Stewart David Healey (Plaintiff)
Penrith City Council (Defendant)2010/350196:
2012/91723:
Ralph Stewart David Healey (Plaintiff)
Robert William Ussher Junior (First Defendant)
Penrith City Council (Fifth Defendant)
Usshers Pty Ltd trading as Ussher's Waste Management (Sixth Defendant)
Ralph Stewart David Healey (Plaintiff)
GIO General Limited (Defendant)Representation: Counsel:
2007/292443:
A Lidden SC/ E Welsh (Plaintiff)
S J Walsh (Defendant)2010/350196:
A Lidden SC/ E Welsh (Plaintiff)
S J Walsh (Defendants)2012/91723
A Lidden SC/ E Welsh (Plaintiff)
B McManus (Defendant)
Solicitors:
2007/292443:
Brydens Law Office (Plaintiff)
James Tuite & Associates (Defendant)2010/350196:
2012/91723
Brydens Law Office (Plaintiff)
James Tuite & Associates (Defendant)
Brydens Law Office (Plaintiff)
Kennedy's (Australasia) Pty Ltd (Defendant)
File Number(s): 2007/292443; 2010/350196; 2012/91723
Judgment
Introduction
The plaintiff was employed as a rubbish collector by Usshers Pty Ltd (Usshers), which had a longstanding contract with Penrith City Council for the emptying of litter bins in the municipality, and then by Usshers Solid Waste Pty Ltd (Solid Waste but, when the distinction is unimportant, the two entities are simply referred to as Usshers) which later performed Ussher's obligations under the contract by agreement between the two companies, although the contract was never assigned to Solid Waste, Usshers remaining contracted to the Council for its performance. The plaintiff was employed by Usshers from 7 February 2000 to 30 November 2004 and then by Solid Waste from 1 December 2004 to 29 April 2005. Usshers was placed into liquidation in 2008. It was insured for public liability from 31 October 2004 to 31 October 2005 by GIO General Ltd, which came on risk in respect of the plaintiff from 1 December 2004.
The plaintiff sued the Council and GIO (as surrogate, in effect, for Usshers pursuant to s 601AG of the Corporations Act 2001 (Cth)) for injury caused by the nature and conditions of his work. He could not sue Usshers (or Solid Waste) because his whole person impairment was not assessed at above the requisite 15 per cent as against any single employer under s 151H of the Workers Compensation Act 1987 (NSW). This is an agreed position and need not be more than noted as explaining the otherwise somewhat unusual form of the litigation Accordingly, in order to succeed against GIO, the plaintiff must show that Usshers was liable in negligence to him for the period commencing 1 December 2004 to 29 April 2005, when it was no longer his employer but was (so, in substance, the argument goes) undertaking the work of emptying the Council's bins jointly with Solid Waste, which employed the plaintiff. The GIO policy contained a number of exclusion clauses which, it was submitted, operated to defeat the plaintiff's claim against it. So far as the Council is concerned, the plaintiff alleges, in substance, that it was a joint tortfeasor with both Usshers and Solid Waste in respect of their negligence which caused his injuries. I mention (with some apprehension) that this matter is also complicated by the provisions of s 151Z of the Workers Compensation Act.
Mr Robert Ussher Jnr was also sued on the basis, inter alia, that his interest in the contract had not been assigned to Usshers or, if assigned, continued by virtue of a clause in the original contract that assignment would not release his liability to perform the contract. This continuing liability to the Council was a term of the assignment also. It was suggested that, because his signature did not appear on the tendered copy of the Deed of Assignment, he had not executed it and had not assigned his interest to Usshers. Given the ensuing events, it is probable that, indeed, he did sign a copy of the assignment. At all events, however, there is no evidence that Mr Ussher actually continued in any relevant role. There is no need to discuss his position. He is entitled to judgment plus costs.
I should mention at the outset that the plaintiff was an impressive witness. He did not exaggerate. I formed the impression that he was genuinely attempting to tell the truth as he believed it to be. Although he was not the master of all the details, overall his evidence was also reliable.
I refer below to Council, Usshers and Solid Waste records that were tendered, which refer variously to bins not being emptied, heavy bins, bins filled with commercial waste rather than litter and damaged bins. The records of the Council up to and including 2004 were destroyed and there is no evidence that the tendered material was complete; in substance, the case was conducted on the basis that this could not be assumed, let alone inferred. However, the documents are a useful snapshot.
Background
The plaintiff was born in December 1948 and was educated in the United Kingdom. In 1965 he took up an apprenticeship as a toolmaker. He married his first wife in 1969 and, after a short period in South Africa in early 1971, returned to the United Kingdom where they lived for about five years. The couple with their daughter (born in May 1972) moved to Germany in 1978 where the plaintiff's brother in law was then living. The family returned to England in 1980 and the plaintiff was employed as a toolmaker for a short time before moving to Australia in 1981. Shortly after arriving in Australia the plaintiff obtained work as a toolmaker with several employers until March 1991, working in a second job packing shelves in a supermarket at the same time. His marriage broke down in 1990. There had been a number of significant crises in the marriage, their first child having died when he was not yet two years old and their second and third children, born respectively in 1974 and 1976, dying within a month or so after birth. The plaintiff returned to England in 1991 following his divorce since his wife, who had custody of their surviving daughter, returned there and he wanted to continue contact with his daughter. Apart from working as a toolmaker where he could, he completed a one year diploma in computer engineering during this time. He said he found it increasingly difficult to obtain work as a toolmaker and thought that computer engineering might offer better opportunities. The plaintiff returned to Australia in 1996 and to a previous employer as a toolmaker. However, the toolmaking side of the business was winding down and it was apparent that those operations were going to come to an end. He therefore obtained a heavy goods driver's license and a front end loader driver's certificate to widen his chances of obtaining work. He managed to obtain employment at Leppington operating a front-end loader and delivering manure to various garden centres.
The nature of the plaintiff's work
In early 2000, following information from a friend who told him that Usshers was looking for truck drivers, he decided to apply for work there. He was then very fit and strong. He started work driving a sewerage truck but only did this for a week before being assigned to the Penrith Council street litter bin run because something had happened to the previous driver. It was night work, the hours nominally being 10pm until 6am six nights a week. For the first two nights, the plaintiff said Mr Robert Ussher Junior accompanied him on the run. Although they started at 10pm they did not finish emptying bins until after 7am and then the rubbish had to be taken to the tip so they did not finish until after 8am. The plaintiff was given a run sheet with details of the 531 bins to be emptied. (There has been some issue about the precise number of bins on the run. I am satisfied it was something over 500.) After the first two nights, when he was working on his own, he found it extremely difficult because of problems, one way or other, with the bins. He said that it was "simply impossible" to complete the run in the allocated eight hours. It always took an hour or more to finish and, on occasion, he was still going at 11am. He said that he did his best to get the job done every day. For the first month, despite being promised that there would be a relief driver on Saturday nights, he had to work seven nights a week. In the end, he found a friend to work as a relief driver on Saturday nights and he did this shift for about 12 months. This friend was Mr Graham Blacklock, whose evidence I deal with in due course. The plaintiff said he was given a run sheet which identified the truck he was to drive and made provision for comments about any problems that were encountered during the run. He returned the run sheet to the office at the end of each shift, either handing it to whoever was there or otherwise leaving it on the desk. He said that he recorded problems with emptying the bins on most nights.
Over time, the plaintiff came to know the family members who were, one way or another, owners or managers of the business. These were Thomas McBurney Snr, Susan McBurney Snr, Thomas McBurney Jnr, Susan Benzie and Jimmy McBurney. Sue McBurney Snr was the daughter of Robert Ussher. Robert Ussher Snr and Robert Ussher Jnr were also involved. It was the latter who showed him the run over the first two days of his employment. (Susan Benzie was Susan McBurney Snr's daughter and is referred to for simplicity as Ms McBurney, which is how the plaintiff knew her.) Ms McBurney started work in about May 2000 and, so far as the plaintiff observed, took over the running of the business to a large degree, though but from time to time he would be given directions by her parents.
The plaintiff's run entailed him parking the truck next to each bin (if he could, which was often not possible), alighting and unlocking a padlock securing the bin to the cradle, lifting the bin from the cradle and emptying it into the back of the truck, replacing the bin and the lock, getting back into the truck and then moving to the next bin. In order to get the run done within the eight hour shift (which was almost never possible at all events) he had to work in considerable haste. The lift started at about waist height, the bin then raised to above shoulder height to remove it from the cradle. He said that when the bins were damaged and stuck he had to use all his strength to remove and empty them. Where there were no handles, he had to adopt an awkward stance to manipulate the bins from the cradles. Of course there were some bins that he was unable to empty.
A 240 litre wheelie bin which hung on a hook from the back of the back could be fixed to the mechanical hoist on the rear of the truck and upended and emptied into the back of the truck. The plaintiff said that the purpose of the wheelie bin was to get to inaccessible bins, for example in car parks where the truck could not drive up to them, so the collector would move around the car park filling the wheelie bin with the rubbish. Also, the bins were sometime secured by chains and could not be simply tipped into the back of the truck, and had to be emptied into the wheelie bin and thence into the truck. Amongst other things, it is obvious that this could not be used to remove the bins from their cradles and the bin had to be lifted to at least shoulder height to remove it from the cradle so it could be emptied into the wheelie bin. The only saving was that the wheelie bin could itself be lifted by the hoist and emptied into the back of the truck. The plaintiff said he tried to avoid using the bin as much as he could because it meant double handling and time was always short.
As I understand the plaintiff's evidence, the problems were of three main kinds: bags of rubbish were left around the bins; the bins or cradles were damaged; and the bins were too heavy to be lifted without difficulty. So far as the bags were concerned, they were unsafe to be removed as they often broke and covered him in rubbish of varying kinds, some particularly unpleasant. Restaurant waste, which included chicken carcases, meat and vegetable scraps also made the bin heavy to lift, some weighing "as much, say, as a six year old child" (agreed at about 30kg). Not only were the bins filled but also several black bags would be found piled around the bin which, for a time, he left uncollected until, in late 2004 received a note threatening him with a fine apparently based upon the false allegation that he had taken the bags out of the bins and left them on the footpath next to the bins. (Ms McBurney's evidence was, in substance, that she told the plaintiff that the Council believed he was taking commercial waste bags out of the litter bins and would give him "on the spot" fines if he continued to do this. The plaintiff denied removing bags from the bins.) It was suggested to the plaintiff in cross-examination that, where there were bags of commercial waste inside the bin he could, if he wished, remove each singly by hand rather than attempting to remove the bin out of the cradle. The plaintiff said that that is what he did but it was still necessary to remove the bin to empty the remaining rubbish. A lot of the bins were in dark places and it was safer to pick up the bin and empty it because there might be dangerous matter in the bin.
The damage largely comprised missing handles, making the bin difficult to lift, and deformed bins or cradles, causing them to get stuck. Sometimes building rubble, concrete and landscaping waste would be placed in the bins, making them too heavy to lift without considerable strain and, sometimes, too heavy to lift at all. In some cases also, because of the different designs of the bins, the wrong bin had been jammed into the cradle and was therefore very difficult to remove. In other cases, anti-litter signs were attached to the cradles with screws that were too long and obstructed removal of the bins.
In cross-examination the plaintiff agreed that Ms McBurney told him, "initially" that if the bin was too heavy to lift than he was not to lift it. The plaintiff was shown a document headed "Street Litter Bin Policy as of 1 July 2002", which he signed. That policy stated -
"Any bin suspected of having excessive weight should not be lifted".
He signed that instruction. As I pointed out to Mr Walsh, counsel for the Council, at the time Ms McBurney's instruction did not mean much since, if a bin was too heavy to lift, he could not lift it. Mr Walsh explained, in response, that it was not his case that the plaintiff was ever given any advice as to what weight he should be lifting. To my mind the instruction put to the plaintiff really just amounted to, "Don't do the impossible" or, at best, "Don't try to do what might be impossible". The written instruction scarcely takes the matter any further. It is unarguable, as it seems to me, that an employer such as Usshers needed to ascertain what was a safe lifting weight in the circumstances of the work being undertaken by its employees, train them to recognise that weight and instruct them not to lift any bin the worker thought might exceed the weight. The instruction did not deal with damaged bins.
The plaintiff was cross-examined about a note from Ms McBurney passing on an "allegation" from the Council that 19 bins in Queen Street, apparently ½ to ¼ full, had been left unemptied for two consecutive nights. The plaintiff explained that they had in fact not been missed but they were in the business area of Queen Street and would be refilled by the shopkeepers after they had seen him empty the bins and pass on. He agreed that there were occasions on which Ms McBurney told him that Council had inspected bins which he had reported as too heavy and told her that they were not heavy. He said that he had no idea how this came about because if he left a bin that he found impossible to lift then that was the fact. He was very fit when he began the job and had no problem with lifting. He thought if it was too heavy for him to lift than it was too heavy for anybody to lift.
The plaintiff agreed that there were occasions during his employment when he reported bins as being too heavy to lift, by which he meant that he was unable to lift them. On 19 December 2003 in a facsimile message to Mr Brown at the Council, Ms McBurney informed him of the three bins which were "full of heavy food stuffs" and were too heavy to lift. Although the note does not state whether they were in fact lifted, the plaintiff said that there were occasions upon which he was unable to empty bins because they were too heavy and he would report these to Ms McBurney or someone at Usshers. He said that, on occasions, even when the bin had been reported as being too heavy for lifting it was not always emptied by the time he returned the following night. There were occasions when the bin stayed full for a week.
The plaintiff said there was no training manual and no training at all in respect of occupational health and safety. There was an occasion when daytime drivers attended some sort of lecture or instruction and he was asked whether he wanted to attend but, having just completed a 12 hour shift, he was exhausted and attended only for a little while because he was too tired to go on. He said the instructions were given over a three day period but he did not attend again. There is no suggestion that any reference was made in this training to the issue of what weight it was safe to lift.
The plaintiff said sometime in 2000 or 2001 Mr Thomas McBurney Snr was in the office on the telephone to Mr Brown, who was the contract manager for the Council. Mr McBurney said to Mr Brown, "Here, you need to speak to this man" and gave the telephone to the plaintiff. The plaintiff said that, during this (his only) conversation with Mr Brown he told him that about 10 or 15 per cent of the bins were inoperable because of disrepair, no handles or jammed into wrong cradles, sometimes too heavy to pick up, sometimes impossible to pick up, impossible to jar free. He also told him there was serious abuse by various commercial interests who were dumping rubbish into the bins and leaving extra bags around the bins. He said he had encountered a lot of restaurant food waste left in black bags which, on occasion, burst when being lifted and covered him in swill, that on occasions there had been concrete poured into the bins, on other occasions landscapers had dumped bricks, broken cement and the like and were using the bins to avoid the normal avenues for that kind of refuse collection. He said that the main problem was that the bins were just too heavy and too jammed in. The plaintiff said that Mr Brown's response was to say he inspected the bins regularly, he saw no evidence of any bins that were in disrepair nor any evidence of excessive weight in any of the bins and, the plaintiff thought, was almost accusatory. The plaintiff replied, "There was just no way that I on my own could cope with some of the bins that were neglected or overloaded." He said that Mr Brown told him that, if he encountered any difficulty, he was to telephone someone called Shane, whom the plaintiff understood was one of the rangers, and gave him a mobile telephone number. Mr Brown told him that he was to empty the bins regardless of what was in them. The plaintiff said that he tried to do this twice but could not contact Shane because the run finished before Shane started work and he never spoke to him. Mr Brown asked the plaintiff why he didn't get help from the other worker and the plaintiff told him, "There is no other worker, I do this on my own, it's a one man operation". The conversation ended with Mr Brown saying to the plaintiff, "Can you put Tom back on". The plaintiff gave the phone to Mr McBurney and left the office.
The plaintiff was cross-examined by Mr Walsh for the Council suggesting that his recollection about his conversation with Mr Brown was faulty and Mr Brown had not said that he did not believe the plaintiff about the damage to the bins and that he was required to empty them regardless but the plaintiff insisted that indeed this was said and he recalled it. He became convincingly indignant when he was pressed on whether he had been reconstructing this conversation and he was asked whether he was sure that it occurred. I have no doubt that he believes the conversation occurred. This was the only conversation he had with Mr Brown and the only occasion, on his evidence, when he conveyed directly to the Council the problems he was having with the run. It seems to me that it was a conversation he was likely to remember, at least as to its substance and he was not confabulating, let alone fabricating his evidence about it. I am satisfied that the plaintiff conveyed the substance of his complaints about unserviceable and excessively heavy bins filled with commercial waste and building rubbish and told Mr Brown that he was the only worker on the run and also that Mr Brown told him that he inspected the bins and denied that what the plaintiff told him was the truth. In his evidence, Mr Brown was unable to recall one way or another whether he had spoken with the plaintiff and did not deny being told about the heavy and unserviceable bins although, in effect, he denied being told or, at least, knowing that the plaintiff was the only worker on the run.
(There was an occasion upon which Ms McBurney sent Mr McBurney Jnr with the plaintiff to do the run after she had told him that she was going to split the run. However, he was extremely physically unfit and only managed to complete one and half nights, at the end of which period he was obviously in a state of physical distress and told the plaintiff that he could not go on. Mr McBurney denied this account of what happened. The parties have not suggested that I need to determine the controversy. I regard it as inconsequential.)
There was frequent interchange between Usshers and the Council, amongst other things, about the requirement that all bins were to be emptied, regardless of contents, except where the bins were too heavy. It appears that the Council received many complaints about bins not being emptied. Mr Brown said that he personally inspected bins on some of these occasions on two successive days and found the rubbish which he had noted on the first day was still there on the second. The fact that there may have been some bins which were on some occasions not emptied is not relevant to any issue in the case, and, although the plaintiff's denials that he left bins unemptied might be adverse to his reliability to some extent, This is inconsequential to my mind. (It did not appear his honesty was in issue.) Of more significance is that this evidence supports the conclusion that Mr Brown gave close attention to the way in which the run was operating. Thus, on 27 December 2002 the plaintiff was given a written note by Mr Ussher Jnr, the operations manager, that stated, "On orders from Penrith Council all bins are to be emptied even if filled with foreign waste". Since the bins were plainly intended only for litter and not for either the commercial waste or heavy rubbish, this note can only be regarded as an insistence by Council that this material was all to be removed together with the normal litter, a direction accepted as legitimate by Ussher's and thus passed on to the plaintiff. To the same effect was a note to him from Ms McBurney (then in charge), he thought sometime in 2004, which took an entire A4 page to state simply -
"PENRITH COUNCIL SCREAMING DO EVERY BIN!!
ESPECIALLY RIVER ROAD, OLD BATHURST ROAD, EMU PLAINS, GWH [Great Western Highway]!!!
PLUS GWH ST MARYS OPPOSITE VICTORIA PARK."
In cross-examination the plaintiff was asked about the frequency which he found bins to be heavy or so heavy that lifting them might cause injury. He agreed that in 2001 it was probably one a month though in the odd month there might be five such bins, but it got worse over ensuing years. It was put to him that, by about early 2004, maybe one or possibly up to three a month were too heavy but he did not agree with this. He said there was a huge problem in early 2004 with a landscaper and that occurred every night along the whole of Henry Street where there were maybe 12 bins. He said that commercial waste was always a problem. He said that he prepared many reports to Ms McBurney about commercial waste left in bins. They were not necessarily too heavy but in the main they were. So far as stuck or jammed bins were concerned, he disagreed that in "the odd month, two or so bins were stuck of jammed and that was about the extent of it" saying it was "a week-nightly thing not a monthly thing". Every night jammed bins were a problem. He said he did not report this because he was discouraged by Ms McBurney from reporting anything although this conversation occurred in mid-2004 when Ms McBurney told him she'd had enough of complaints, which were not going down well with Council and she was being asked to dismiss him. He said that initially he reported damaged bins on the run sheet he was given each day but there were many days when he made no entries. After that he only wrote about damaged bins in his run sheets on one occasion. He said that a new arrangement came into place as to how he would notify Usshers of damaged bins. He was provided with an inventory of all bins on the run and asked to tick off all the ones that were difficult, damaged, heavy, dangerous. He said from that time until he stopped work in April 2005 he filled in possibly four or five of these sheets and gave them to a staff member.
Since the litter run had been undertaken by Ussher's for some years, it seems virtually certain that whoever was responsible from time to time for managing this collection knew about the problems of deformed bins, heavy rubbish and missing handles which must have occurred to a greater or lesser extent from the very beginning.
The plaintiff said that there was no point in him complaining about anything because nothing was ever done. He said that over the time he was emptying the bins from 2000 to 2005 he saw very little sign of any maintenance being undertaken on the bins or the cradles and that there were bins which were broken or damaged at the beginning of his employment which were still in that state five years later. He said it was extremely rare to see a bin replaced.
In my view both Council, in particular, Mr Brown who managed the litter contract, and the management of Usshers considered that the issue of heavy bins, which the plaintiff was not expected to empty, concerned only those bins which were too heavy for him to lift at all as distinct from those which were too heavy to lift safely. I would accept that there were not many of the former, which because of the physical impossibility were not emptied. However, the crucial issue in this regard were the bins - which, I am satisfied, comprised a significant number - which were unsafe for him to repetitively lift. For obvious commonsense reasons, bins which required extra force to lift because they were stuck in their cradles and bins which only had one handle, and thus required initial lifting with only one arm were also likely to be too heavy to lift safely. None of this required an ergonomic expert: a moment's thought about the issue of worker safety would have been enough.
Over the years he was working for Usshers the plaintiff had experienced pain in his shoulders and elbows from his work about which he saw his doctor but he continued to work on. As 2004 progressed he noticed increasing pain in his shoulder, elbows, neck, back and knees. A particular incident occurred on 29 November 2004 in Station Street Penrith at about 2am. (There was some issue as to whether this was the precise location but, in my view, nothing turns on this.) The plaintiff had to empty a bin which was full of heavy rubbish and which had been damaged so that it was jammed tightly into its cradle. He jolted the bin to release it. As he attempted to lift it, the bin suddenly released from the cradle and he felt an intense severe shooting pain in his left arm. (It may also have only had one handle, but the plaintiff's evidence about this might be mistaken.) The plaintiff said that the bin had been in that condition for the whole period of his employment and he had emptied it before. He said, "It was quite difficult to empty but with a heavy load in, unusual heavy load it, it was very difficult to empty". It was quite dark in the area under the overpass where the bin was situated. After a rest the plaintiff continued his shift but it took him two hours longer to complete because of the pain in his left arm. He said that when he returned to work at the end of the shift he reported his injury to Ms McBurney who gave him some Panadeine Forte tablets and said, "We are not here to be your pension fund". He went to see his general practitioner, Dr Obeidulla who prescribed Panadeine Forte which he used to control his pain. The plaintiff was not offered alternative duties and it appeared obvious to him that time off work was out of the question.
At one point in 2004 the plaintiff was provided with an older truck with a different design so that he had to lift the bin some two feet higher than was necessary with the newer truck. He was not sure how long that situation continued but it appears he was still using that truck on 29 November 2004.
The plaintiff continued working his usual duties until 29 April 2005, during the intervening months developing increasing pain and discomfort in both shoulders and arms, his neck and lower back. He also had pain in his hands and knees. What had been problems in 2003 when he first saw Dr Obeidulla but with which he could cope became disabling and he was unable to continue working at the end of his shift on 29 April 2005 and has not worked since.
Lists of problematical bins
I have mentioned the missing Council records and the possible - I think likely - gaps in the records of Usshers and Solid Waste as to problems with bins. It is also clear that the plaintiff did not always report unserviceable bins; indeed, my understanding of his evidence is that he often did not. I also point out that the issue of the cause of the plaintiff's injuries is not confined to these bins, but to unsafe weights that he (and his employers) did not think of as potentially dangerous. As it happened, however, in early 2005 three lists of problems were compiled, the first two almost certainly by the plaintiff. In September 2006 the plaintiff took photographs of bins in the Penrith CBD as examples of the problems he had encountered. Although, not surprisingly, these "compilations" are not identical, they reflect a similarity which is informative.
On 22 February 2005 Ms McBurney emailed to Mr Brown a list of what she described as "First pass of OHS issues re bins" (emphasis added), 22 of which had either only one or no handles, 19 bins were too large for the cradle, five had issues with chains either being attached to the wrong side or too short, two had "tosser screws" (the screws fixing the anti-litter signs) which were too long and three bins were identified as having inside handles. It is most likely that this list was the plaintiff's because of the use of the first person in the following comment -
"With inside handles the operators hands are on the inside of the bin whilst emptying it and heavier objects hit his gloved fingers as they fall out, or the load in the bin will not fall out due to the protruding handle allow free flow [sic]. Then I have to physically put my hand in a remove it whilst still holding the bin with other arm."
On the last day he worked, 29 April 2005, the plaintiff prepared a handwritten list of bins with one handle, no handle and "arm breakers", a term meaning a bin that needed a great deal of physical force to remove, causing severe pain, sometimes being too difficult to remove. The numbering is not completely clear but my arithmetic has a total of 70. In his evidence in chief he said that he did not recall damaged bins ever having been repaired or replaced. He agreed that he came to know which ones they were and that he would have to use a fair bit of force to get them out. There were areas where bins were typically overfilled or filled with heavy material and in those areas also he would be more than usually careful. He said that there was nothing he could do about them: "I was obliged to empty every bin no matter what".
By and large, one cannot infer from the lists of 22 February and 29 April 2005 that, merely because a bin, say with only one handle, is identified in a particular street in one list and a bin in the same condition is identified in the same street in the other list that they were the same bins since, in all the streets and locations in question, there were two or more bins required to be emptied. Even where it might be that the same bin is noted as damaged in both lists, it cannot be inferred from that fact that the bin had not been repaired in the meantime and damaged again by the time of the second list. Also there are inconsistencies with the lists in the sense that it appears that damaged bins recorded in one list do not appear in the other. A number of locations listed in one list do not appear in the other. It should be noted, however, that the earlier list is described as having been prepared "on a first pass" which suggests that it was compiled on a cursory inspection. I think it improbable, however, that a significant proportion of the damaged bins happened to be damaged simply over the one 24 or 48 hour period, even given the destructive tendencies of drunken persons skylarking in the areas identified.
On 11 May 2005 a further list (not prepared by the plaintiff) of bins with no or missing handles was forwarded by Ms McBurney to Mr Brown identifying 13 locations. It is difficult to be altogether sure but it seems to me that these locations are not the same as those which were earlier complained of although there does appear to be a degree of overlap.
It is reasonable to treat these compilations as fairly reliable indications of the situation as at their dates, noting that only the list of 29 April purports to be complete. I am also satisfied, chiefly relying on the evidence of the plaintiff and Mr Blacklock but also because of the incomplete documentary material, that the picture they represent was not unusual or exceptional but, broadly speaking, depicted the frequent if not daily actuality of the run with which the plaintiff had to deal.
The plaintiff produced photographs taken in September 2006 when he went to look at some of the bins which he remembered had been broken and damaged when he last worked in 2005. He said that he took photographs of about 20 of these bins which had not been repaired in that period. He said that, when he went back to the specific bins which he remembered had been damaged when he last worked, not one of them had been replaced or repaired. Those photographs were produced. As well as bins which were photographed to show how they should have been, there were a number of other photographs of bins which were damaged. Several had labels which had been screwed in with bolts which were too long and compressed the bin into its surrounding, gripping the bin. A number of them show only one internal handle, some have no handle but holes cut into the side of the bin for handling, others are plainly too big for the cradle and also show distortion of the base, one shows the cradle has been hit or struck so that steel frame has been jammed inward against the bin.
Mr Walsh dismissed the significance of these photographs. Two of the photographs are of undamaged bins, three are bins which are not damaged but were designed with internal cut out handles and seem to be photographed twice. Two photographs showed the litter sign on the one bin. Nine bins have one handle, two no handles. Six photographs show dented bins and three bin liners two large for their cradles. Mr Walsh points out that these photographs were taken almost a year and half after the plaintiff's last day on the job and submits they are not evidence of the state of the bins at the time the plaintiff was employed. Moreover, they were only a small proportion of the total number of bins on the run. The plaintiff did not say that he photographed all the damaged bins in the entire run, only those he remembered having been damaged when he was working. The plaintiff said they reflected the kind of problems which he had at the time of his employment. Furthermore, the reaction of the Council staff who gave evidence was, in substance, that the photographs were markedly inconsistent with the state of the bins as they thought they were, as I understand their evidence, either whilst the plaintiff was employed or at the time they were taken. It is true that one could not infer from the photographs how long the damaged bins had been in that state, nor when they may have been repaired, if ever. However, the photographs should not be looked at in isolation. They tend to support the plaintiff's evidence rather than that of Mr Pell and the Council employees.
Plaintiff's witnesses
Mr Robert Sammit was a street sweeper driver employed by Penrith City Council from 1986 to April 2012. Mr Zammit came to know the plaintiff when he was working on night shifts. He said that, from his observation of the plaintiff's work, it was very hard, he had to empty all the bins himself so that he had to get in and out of the truck hundreds of time every night and Council rubbish bins had "all sorts of rubbish in them because shopkeepers used to put their waste into those bins". He said that he would often stop and talk to Ralph for a minute or two when he ran into him on his rounds. He recalled on one night meeting him in High Street Penrith when he said that he had hurt himself emptying one of the bins. Mr Zammit understood that it was claimed the injury occurred in Station Street but said this would make sense because High Street and Station Street run into each other. He said that he did not remember the date of this conversation but he saw the plaintiff for a while after that and then he stopped doing the bin collections.
The plaintiff also called Mr Graham Blacklock whom he had known since 1999. When the plaintiff started working for Usshers, Mr Blacklock said, he was doing some casual concreting work although he had previously done garbage collection work. The plaintiff asked him if he was interested in doing relief work collecting on Saturday nights and Mr Blacklock started work with Usshers in 2000. He had worked a few shifts before he met any of the management because he worked only on Saturday nights. Mr Blacklock said that his run involved collecting from street bins in Penrith and St Marys of which there was something over 500. He said that the bins were often stuck in the cradles because they were damaged and sometimes the handles were missing. Sometimes bricks or other building rubble had been dropped into the bins which made them very hard to lift and you would not know what was inside each bin before you lifted it because the work was done at night and often with bad lighting. He said that it was his job to empty all of the bins and he did that to the best of his ability. Mr Blacklock said that he never had a run where all the bins were undamaged. He said that probably at least 40 were damaged out of the over 500 bins he needed to empty on his run. The damage was of different kinds. Sometimes they had been run over or smashed against the cradle and these were hard to get in and to get out. As to the 40 bins or so that were damaged, some of them had been in that state for months. Although some of them were repaired most of them remained unrepaired. He said that where the cradle had been smashed against the bin making it hard to take the bin out and return it, these never got repaired. He thought that it was "easy over 30 of the bins which had been damaged which were difficult either to remove or return". This was a "pretty accurate" assessment.
He was never given any form of training by Usshers and never told that he could simply choose not to empty a bin if it was too heavy. He understood that all bins were to be emptied. He suffered an injury on 6 January 2001 doing the run when he had to swerve the truck to avoid a head on collision and his truck collided with a telegraph pole. He suffered injuries to his neck and back and made a workers compensation claim. He said that Usshers' attitude changed after that accident. He said that he was no longer able to lift a lot of the heavy bins "and once I couldn't do the run without complaining they didn't want to know about me". He said that, at first, he did not realise that he had to report damaged bins but, after his accident when he could not lift them he started to report the bins that were too heavy, sometimes having different building materials like pavers or bricks in them. He stopped working for Usshers in March or April 2003.
Defendants' witnesses
Mr Jeffrey Brown was the Council's waste management and contract co-ordinator, a position which, in substance, he had occupied since 1990. From 2000 to 2006 he was in charge of the street litter bin waste collection contract with Usshers. His role was limited to managing the emptying of bins and the liaising with Usshers about that task. Maintenance or replacement was managed by another department which had an outdoor crew. He said that the system was that if he was advised by Usshers of a problem with a bin, such as being unserviceable, too heavy, damaged and in need of repair or problems with chains or padlocks, that information was passed onto that department, usually to Mr Ian Pell whose job was to co-ordinate the work of the outdoor maintenance staff. Mr Brown said that the litter bins were designed to allow pedestrians to dispose of small quantities of litter as distinct from any commercial, industrial or construction rubbish such as discarded building materials. Nevertheless each litter bin was to be emptied each night whether or not it contained this material except where the bin was rendered unserviceable because it was too heavy to lift. Mr Brown agreed that the tender which became part of the contract with the council provided for bins to be emptied by two employees and a casual but he did not ever check whether this actually occurred. He said that, after the plaintiff's accident, he discovered only one driver was used during a conversation with Ms McBurney about workers compensation. (As I have already said, I do not think this evidence is correct: he in fact discovered that only one driver was used during his conversation with Mr Healey in 2000 or 2001.)
Mr Brown said, during the last two years of the contract, 2004 to 2006, there had been frequent meetings with Ms McBurney regarding compliance with the terms of the contract and there had been regular phone communications with her and others at Usshers. The "regularly" (by which I think he meant "frequently") recurring issues in the meetings and phone calls were daily complaints about missed bins, allegations of waste being removed from litter bins by Usshers' staff and placing the waste at the front door of shops suspected of putting shop waste in the litter bins, reporting of bins containing waste alleged to be too heavy to lift and reporting damaged bins. When Usshers notified the Council of heavy bins, he would arrange for Council staff to empty them. Mr Brown said, when he learnt that bins were not being emptied, he contacted Usshers by telephone and wrote letters to confirm his instructions that all bins were to be emptied. He also instructed that the bins were not to be emptied onto shopkeepers' front doors. In respect of heavy bins he advised Usshers' staff, he said, that he should be contacted and would organise for Council staff to empty them.
I should mention that it is no part of this action to consider let alone determine the rights and wrongs of the issue concerning collection of commercial waste, whether placed in the bins or collected around them. The complaints are necessarily hearsay at all events. Nor is it relevant to determine how many bins might have been left unemptied by the plaintiff. The question here concerns the bins that the plaintiff did empty, not those that he did not.
Mr Brown said that, in late 2004 and for a period in 2005, when complaints about this matter were frequent, he personally checked the contents of some bins and returned the following day to find them not emptied but the refuse in the bin the same as he had observed, leaving him to infer that the bin had not been emptied as distinct from emptied than immediately refilled. I have referred to the plaintiff's evidence in this regard. I accept the plaintiff as telling the truth to the best of his recollection and that he may simply be mistaken about having emptied all of the bins. At this remove it scarcely surprising that his recollection may have failed and, at all events, it is impossible to tell from Mr Brown's evidence how many of these bins were involved, even if I were disposed to accept that his recollection about this matter is complete.
Mr Brown's evidence that Usshers' management and administrative staff "were told repeatedly, in meetings and phone calls from me, that their staff were to report unserviceable bins including heavy bins so that arrangements could be made for Council staff to service [them]" suggests that this was a continuing problem on a substantial scale. Mr Brown also said that Usshers staff were not expected to lift bins out without handles and expected to be notified of this so that they could be repaired by Council staff. However, it is obvious that the issue of handles was seen simply as one of maintenance and not of safety. He said he received spasmodic reports of overweight bins, which he understood would be reported as "unserviceable bins", and arrangements would be made for Council staff to empty them. He was taken to the survey conducted by the plaintiff on 29 April 2005 listing 53 damaged bins on his run and agreed that it would "come as extraordinary shock ... that on any one day there would be 53 damaged bins on this run" and that "had it come to his attention he would have taken it up promptly with Mr Pell". He was also shown the photographs taken by the plaintiff towards the end of 2006 which showed a number of damaged bins and said that he would not have expected that number of bins to be in that condition at the one time.
Mr Ian Pell was employed by the Council as the co-coordinator in charge of approximately 42 outdoor maintenance staff until late 2006 when he retired. He held this position from sometime well prior to 2000. He said that Mr Brown would periodically call him to tell him about damaged bins or bins full of restaurant refuse or overfull or too heavy (for example with builders' waste). Mr Pell would then delegate to his staff the task of fixing the problem. There were a number of problems with padlocks jamming and they also were fixed when Mr Pell became aware of it. He said that, in the late 1990s or early 2000s the Council started to chain the bins to the cradles because bins were being removed and used to smash shop windows. The chains were between 1.5 and 1.8 metres long designed to allow the bins to be emptied into another bin and not intended to be long enough to go from the footpath to the garbage trucks. He said, from about 2000 the Council started replacing the older style cradles with a newer style which did not require a chain because they had a locking system to secure the bin. This process had been almost completed by about 2006. He said that between 2000 and mid 2005 he would spend about one full day each week inspecting the work undertaken by council staff, walking around the shopping centres to check that the surrounding areas had been swept and weeded and, as he did this, looking at the bins. He said that he could not recall an occasion when a bin that he had asked to be fixed had not been attended to. From time to time damaged bins would be hammered out with a sledge hammer carried by staff. The Council rangers who patrolled during the daytime looking at the bins to check for damage simply drove past. It seems reasonable to infer that the damage to a bin which caused it to be jammed in the cradle or difficult to remove from the cradle might not be noticed. Mr Pell's inspections were also done whilst driving past. Mr Pell did not accept that, on any one day, perhaps as many as 40 bins were damaged. Mr Pell was shown the photographs taken by the plaintiff and agreed that they showed many damaged bins. He said that many of the bins only had one handle but they were designed in that way. He agreed that, even leaving out the bins with internal handles and one handle, on the assumption that the photographs were taken on the same day, "maintenance was not what it should have been". He was taken to the list prepared by the plaintiff on 29 April 2004 and, accepting its correctness, he said that he would not infer his subordinates had not attended properly to their work. He said that there were hundreds of bins and "to check every bin everyday is virtually impossible". So the number listed was a margin of error which he would accept as reasonable because of staff limitations.
Aside from the evidence of Mr McCallef (set out below) to the opposite effect, it is clearly wrong that these bins were designed to have only one handle. Replacement of missing handles was a continuous task of which Mr Pell must have been aware. I reject Mr Pell's evidence on this matter.
Mr Charles McCallef worked for the Council from 1977 to January 2006. Between 2000 and 2004 he worked in the Penrith and St Marys area carrying out street sweeping duties. This involved walking around about 15 shopping centres each day collecting rubbish with a broom and scoop and, he said, inspecting the litter bins. There were two men in his team who walked along High Street Penrith and Queen Street St Marys, the major commercial thoroughfares, each day collecting rubbish and tidying up the streets. The procedure was that he would meet the two men at lunch time each day to check if there were any problems. These included problems with the litter bins, for example, broken chains or concrete in a bin. He said that if he was informed about a problem he would inspect the bin in the afternoon and try to fix the problem himself. Many of the bins had handles welded onto the side but, if a handle were missing, the bin would be replaced rather than attempting to weld on a handle. Missing handles were replaced by riveting a new handle onto the bin. Mr McCallef also confirmed that all of the bins were supposed to have two handles. If it came to Mr McCallef's attention that a bin was out of shape he would use a sledgehammer which he carried in the back of his vehicle to knock it back into shape if it could be fixed. If damaged beyond repair, the bin would be replaced. He said he collected, in alternate weeks, 15 bins in each of the Penrith and St Marys areas to be taken to the Council depot, washed and painted, replacing the bins when they were removed. The bins in questions were in three streets in the CBD of Penrith and, in St Marys from the highway to the station and one or two bins in the side streets. (Given that the number of bins was about 530, this maintenance program in each month would have covered only a very small proportion of the total. The total number of bins in the relevant areas was not disclosed, so that, although not insignificant, the extent to which this process - if it were actually undertaken in accordance with the stipulated timetable - reduced, if it did not overcome, the problems described by the plaintiff is difficult to assess.)
In about 2004, the Council split the work areas into two separate parts and Mr McCallef became responsible for the team working in the St Marys area whilst a Ms Veronica Vincent became responsible for the team working in the Penrith area. The nature of his work, however, did not change. Mr McCallef, as I understand his evidence, would clean what he described as "the little shopping centres" away from the main streets of the CBD. There were areas outside the shopping areas where neither Mr McCallif nor his staff went and relied on communications from Mr Brown and other Council staff if something was wrong. The streets of Penrith and St Marys were cleaned in this way nine days a fortnight.
Mr McCallef agreed that he had seen bins pushed out of shape so that they were stuck in the cradle but said that he would either fix it or change the bin. He denied that there were damaged bins in the area he and his team supervised which were not repaired for months or years. It seems, however, when in 2004 he got the job as supervisor working in the St Marys area, he was not responsible for fixing bins, just cleaning the streets. He said that it was not uncommon for the bins to remain unemptied when they were too heavy for the Usshers' collector. He said, when he was working in the St Marys area he thought he replaced about 10 handles a month. He was asked whether, in the area for which he was responsible before the changeover in 2004, it would have been possible that on one day there might be 53 bins which only had one handle or no handles or were jammed into the cradles and he said that it was not possible. He was taken through the photographs which, he agreed, showed 25 damaged bins. He said that there would not be so many bins damaged in one day. Since I accept the correctness of these compilations as reflecting the actual position both at the time they were made as well as, broadly speaking, over the entire period from 2000, it follows that Mr Micallef's recollection in this regard is incorrect.
Ms Veronica Vincent was employed by the Council as a labourer in October 2001 and remained in that role until 2004 when she was made team leader of the cleaners in the Penrith area following its separation from St Marys. She was in charge of a crew of three who cleaned the main streets in Penrith. They were expected to check the bins as they cleaned and repaired or replaced damaged bins. Once a week or fortnight bins were cleaned and replaced as previously described. If, during this process, broken or damaged bins were noticed they would be fixed or replaced. Ms Vincent thought that her team "stayed on top of fixing the bins". She said if she was told by Mr Pell that there was an issue with a bin she would always check the problem and fix it as soon as possible, if not immediately then the next day. Occasionally the bin cradle was damaged and needed to be replaced. This was the task of Ms Vincent or her team. The team cleaned only the CBD in Penrith but occasionally went to the outskirts. In cross-examination Ms Vincent was taken to the plaintiff's list of 29 November 2004 and was asked to note the list of 26 damaged bins. Ms Vincent said that she would be surprised that if at the end of the day when her team had been working in the area there were still 26 bins damaged. She would have expected that, at the end of the shift, there would be no damaged bins left in those areas. Ms Vincent was shown the email from Mr Brown to Mr Pell which listed, on an occasion in May 2005, 13 bins in the Penrith business area with no handles or only one handle. Ms Vincent said that she could not explain this number of broken or missing handles although she said it was possible that 13 might be broken in a day because occasionally, people leaving the pubs in the area would go around damaging bins. She denied that either her or her team were indifferent to damaged bins.
The recollections of either Mr Micallef of Ms Vincent as to the extent to which damaged bins were noticed or, when noticed, repaired do not lead me to doubt the essential reliability of the evidence of the plaintiff and Mr Blacklock as to this matter. This follows from my view of them as witnesses, the compilations and the (incomplete) documentary material as well as the, admittedly irregular, contemporaneous complaints made by the plaintiff to his employers.
Mr McBurney Jnr, the grandson of Robert Williams Ussher Snr (one of the founders of the business) commenced working for Usshers when he left school in 1996, doing general maintenance on the trucks as an apprentice yard hand. He reported to his father, who was one of the managers. Although he knew the plaintiff, he did not recall when he commenced working for Usshers. In about December 2000 or January 2001 Mr McBurney became operations manager of the company, overseeing bookings and run allocation and dealing with issues concerning drivers, trucks and customers. In relation to the drivers he needed to ensure that they had personal protective equipment, knew what the customer concerns were, maintenance issues, start and finish times and any other issues that drivers had on the job. Each driver was expected to report to Mr McBurney at some time during the day. He had day to day contact with the plaintiff whom he would generally see each morning at the end of the plaintiff's shift when he would hand in his run sheet. One of the other staff would take the plaintiff's paperwork out of his tray each morning and, if there was a report of a broken bin or a bin that was too heavy to lift, he understood that one or other of those staff members would report it to the Council. If he became aware of a report that a bin was not emptied he would ask the yard hand or find a spare driver to go out and empty the bin. He said that he repeatedly told the drivers, including the plaintiff, that he could be called at any time of the day if there was a problem and he was contactable all night on his mobile. He said that he expected to be contacted if there was an issue with doing the run and did not recall any call from the plaintiff whilst he was doing the run reporting problems with the bins. He said that he told the plaintiff on more than one occasion that he had to empty every bin every night. Every now and then he said that he would tell the plaintiff not to lift heavy bins. He said the plaintiff was expected to use his common sense to work out what was an acceptable weight to lift and what was too heavy. He said that he never reprimanded the plaintiff for not collecting a bin that was too heavy. He recollected the occasion upon which he was sent out with the plaintiff to do a night run with him for the week. This was done at the direction of his sister, Ms Susie McBurney, who was the general manager. He disagreed with the plaintiff about the way he worked on this run. (Although I am minded to accept the plaintiff's evidence about this simply because I found him an impressive witness this is an issue which, as I have already mentioned, I do not need to resolve. It is not relevant in any real sense to the issues in this case.) Mr McBurney said that on many occasions he saw the plaintiff at the end of his shift with weights strapped to both ankles saying, "I am trying to add some fitness". (The plaintiff has denied ever wearing weights on his ankles. Again, I am minded to accept the plaintiff's evidence on this point but the issue is essentially irresolvable and I do not propose to determine it. It is, so far as I can see, not relevant to any issue in the case.)
Mr McBurney said that he did not think the plaintiff ever told him he had been injured and does not recall a complaint between November 2004 and May 2005 that he had any health issues, despite talking to him nearly every day after his shift. He said that the plaintiff had not complained to him at the end of his last shift in May 2005 about any problem. Mr McBurney agreed that over 500 bins needed to be emptied on the run and that the distance to be travelled in the truck was about 150 kilometres or so. He agreed that the plaintiff probably went over the eight hour shift time twice or three times a week. He said he would expect most drivers to do a 10 to 12 hour shift every day. He said that he would see the plaintiff at the end of his shift at the operations window and, if there were any issues, the plaintiff would go up to see his sister.
Given my view of the likely retirement of the plaintiff, there is no allowance for loss of future earnings.
Past gratuitous care is allowed at 7 hours a week for 6 years at $24 per hour, yielding $52,416.
Future gratuitous [this was a mistaken expression: "commercial" was intended - see the subsequent judgment] care is allowed at 7 hours per week for 19.3 years. Loss of superannuation for past earnings must be allowed together with the Fox v Wood component.
It is necessary to consider the effect of s 151Z(2) of the Workers Compensation Act, which requires a notional apportionment of responsibility. It is submitted for the defendants that, in light of Usshers' responsibility for the system of work, the number of workers on the run, the plaintiff's hours of work and the facts that the Council had no responsibility for these matters and repaired unserviceable bins when notified of them and emptying bins too heavy to lift when it was informed of them, a notional apportionment of 75% to the employer is appropriate. This understates the responsibility of the Council. It did not repair unserviceable bins when it knew of them. It insisted on the performance by the plaintiff of the run, knowing he was alone, requiring the emptying of bins it knew or ought to have known exposed the plaintiff to a risk of injury and generally was aware of the fact of heavy bins which the plaintiff ought not to have been required to lift. I assess the responsibility of the Council at 50%.
So far as GIO is concerned, it is submitted by Mr McManus on its behalf that I should act on the basis of Dr Giblin's opinion attributing 80% of the plaintiff's impairment as attributable to the incident of 29 November, 15% due to the nature and conditions of his work from 1 December 2004 and 5% to 12 May 2005. It is suggested there was no evidence of continuing injury after 1 December 2004. Given the repetitive and continuing strains caused by the nature and conditions of the plaintiff's work up to the time he could work no longer, I reject the latter submission. I agree that Dr Giblin's opinion is material to the issue of apportionment, but I do not accept the contended for consequence, namely that 92% of the injury to the plaintiff occurred prior to his commencement of employment with Solid Waste. This is to attribute to the period following 29 November insufficient significance to the plaintiff's continuing to work unsafely when he had suffered a substantial injury, which is not a purely medical question. So far as causation is concerned, I would attribute to the period the plaintiff worked for Solid Waste 15% responsibility, arising from its requiring him to work dangerously when he was already significantly injured.
I direct the parties to bring in draft orders relating to the calculation of future gratuitous care, loss of superannuation, Fox v Wood, and in relation to the apportionment required by s 151Z and costs. In the absence of agreement on any aspect, further submissions will be received and, if necessary, a further hearing conducted.
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Decision last updated: 24 December 2014
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