Jack Bishop Pty Ltd v Trespa Holdings Pty Ltd
[2021] VSCA 275
•5 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2021 0021
| JACK BISHOP PTY LTD (ACN 133 057 048) | Applicant |
| v | |
| TRESPA HOLDINGS PTY LTD (ACN 006 612 782) | Respondent |
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| JUDGES: | MAXWELL P, SIFRIS and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 July 2021 |
| DATE OF JUDGMENT: | 5 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 275 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1965 |
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NEGLIGENCE – Duties of employer and occupier – Safe system of work – Duty to warn – Apportionment of responsibility – Plaintiff was employee of respondent working on vehicle at applicant’s premises – Risk of injury because vice grips clamped onto defective gas strut supporting bonnet – Bonnet closed suddenly and caught employee’s arm – Injury to shoulder – Employee not warned about risk by applicant or respondent – Damages reduced by 40 per cent because of employee’s contributory negligence – Responsibility apportioned 80 per cent to applicant and 20 per cent to respondent – Whether judge erred in finding plaintiff working under control and supervision of applicant – Whether apportionment of 80 per cent to applicant manifestly excessive – Different levels of awareness of likelihood of harm – Apportionment reasonably open – House v The King (1936) 55 CLR 499; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; Central Darling Shire Council v Greeney [2015] NSWCA 51, considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Ruskin QC with Mr R Kumar | Meridian Lawyers |
| For the Respondent | Mr S E Gladman with Ms A Bannon | IDP Lawyers |
MAXWELL P
SIFRIS JA
WALKER JA:
Introduction
On 25 April 2012, Jason Cross (‘Cross’), an employee of the respondent, Trespa Holdings Pty Ltd (trading as ‘Windscreen Power’), suffered an injury to his right shoulder. This occurred when he removed vice grips attached to a defective supporting gas strut, causing the bonnet of the vehicle he was working on to close suddenly. It caught his right arm and dragged it down. At the time, Cross was working at the premises of the applicant, Jack Bishop Pty Ltd (trading as ‘Duo Mobile’).
Duo Mobile conducts a motor mechanic and repair business and from time to time engaged Windscreen Power to attend to windscreen repairs and installations. Cross is a windscreen fitter and at the time of the accident had worked for Windscreen Power for over 25 years. Duo Mobile had engaged Windscreen Power to replace the windscreen on a Ford Falcon XF at its premises. That was the work Cross was undertaking when he was injured.
On 8 April 2019, Cross commenced proceedings in the County Court of Victoria at Ballarat, against Windscreen Power and Duo Mobile. The trial judge held that both Windscreen Power and Duo Mobile were negligent and that the negligence of each was causative of the injury suffered by Cross.[1] Damages were, however, reduced by 40 per cent on account of Cross’s contributory negligence.
[1]Cross v Trespa Holdings Pty Ltd (ACN 006 612 782) [2020] VCC 1965 (‘Reasons’).
This application for leave to appeal concerns only the trial judge’s apportionment of responsibility between the two defendants. Her Honour concluded that ‘the majority’ of the responsibility for the injury rested with Duo Mobile, under whose supervision and control Cross was working while doing the windscreen installation. She held that responsibility should be apportioned as to 80 per cent to Duo Mobile and as to 20 per cent to Windscreen Power.
On 20 January 2021, judgment was entered in favour of Cross, against both Windscreen Power and Duo Mobile, in the sum of $116,597.40. Orders were also made which reflected the trial judge’s conclusion on apportionment, as follows:
(a) Windscreen Power indemnify Duo Mobile to the extent of 20 per cent of the judgment sum set out and to the extent of 20 per cent of [Cross’s] costs as ordered.
(b) Duo Mobile indemnify Windscreen Power to the extent of 80 per cent of the judgment sum.
Duo Mobile contends that, in arriving at the 80/20 apportionment, the trial judge fell into specific error in two critical respects, as set out below, and that in any event an apportionment of responsibility of 80 per cent to Duo Mobile is ‘manifestly excessive, that is, not reasonably open’.
Duo Mobile’s principal submission is that it and Windscreen Power were equally responsible for Cross’s injury, such that a 50/50 apportionment would have been appropriate; however, at the hearing, Due Mobile appeared to accept that a 60/40 apportionment (as between it and Windscreen Power, respectively) would have been open.
In our opinion, for the reasons set out below, the trial judge did not fall into specific error and, moreover, it was reasonably open to her Honour to apportion 80 per cent of the responsibility to Duo Mobile.[2] As the trial judge carefully explained, the apportionment reflected the fact that Duo Mobile had created the risk of injury, by propping up the bonnet of the vehicle by attaching vice grips to the defective supporting gas strut, and had both knowledge of and control over the risk, which Windscreen Power did not have. The negligence of Duo Mobile, in failing to warn Cross and to stop him from working on the vehicle, was both more culpable and more causally potent than Windscreen Power’s failure to warn Cross that this was the kind of risk he might encounter.
The relevant facts[3]
[2]The difference between 80 per cent and 50 per cent is $34,979.22. The difference between 80 per cent and 60 per cent is $23,319.48.
[3]The facts, which for the most parts are uncontentious, are taken from the Reasons and the Agreed Summary.
On 25 April 2015, Cross and his workmate, Paul McKay (‘McKay’), commenced their work day. McKay was driving, as always, mainly because Cross could not read. Their first job for the day was at Duo Mobile. When they arrived at the Duo Mobile workshop, an employee of Duo Mobile directed them to the vehicle and told them it was ‘right to go’.
Crucially, the bonnet on the vehicle was up. Because the gas strut which should have supported the bonnet was defective, the bonnet was being held in place by vice grips attached to the strut. But no-one at the premises warned Cross or McKay that there was any danger or potential risk that they should be aware of while working on the vehicle. In particular, Cross was not told anything about a defective gas strut on the vehicle, or that the defective gas strut was being supported and fastened with vice grips, or that he needed to be careful. He was given no guidance as to how to work on the vehicle, as presented.
Before leaving the premises of Windscreen Power to do the job at Duo Mobile, Cross was not given any instruction or guidance by Windscreen Power about how to do the job. He went about the job in the usual way, that is, in accordance with his substantial experience and the instructions and training given, from time to time, by his employer of over 25 years.
On arriving at the vehicle, Cross slid the side door of the van open, got out his tool box, walked over and got a screw driver out. To remove the windscreen they first had to take the screws off the side moulds while sitting in the vehicle. Cross worked on the left mould and McKay worked on the right.
Having got off the right side mould, Cross walked around to the front of the vehicle because the bonnet was up and in the way. Cross needed to shut the bonnet to get the windscreen wipers off so that he could then get the bottom mould off. He went to pull the bonnet down but it would not go down. The bonnet was at about head height. He looked under it on the front side of the vehicle, near the side driver’s wheel. He saw the vice grips on the strut and thought that this was the reason why the bonnet was not going down. Prior to this day, Cross had not been involved in a similar situation where vice grips were attached to a gas strut.
After seeing the gas strut with the vice grips on it, Cross ‘just released the vice grips to get em [sic] out of the way’ and then the bonnet dropped and pulled his arm in. He got his head out of the way but the bonnet caught his right arm, which was guarding his face, and dragged it down.
The bonnet went all the way down until Cross was nearly on his knees with his arm stuck underneath it and on top of the guard. It went very fast. Cross did not know the bonnet was coming down. He yelled out to McKay, who was still in the driver’s side of the vehicle, to get the bonnet off him. McKay then lifted it off him.
Cross’s shoulder was then in pain. He wandered around the workshop for a while and then went back to the van and had a seat for a second. He thought he had ‘just pulled a muscle or something, it will be alright’.
Cross helped McKay finish off the job. They went to do another two windscreens elsewhere and then went back to Windscreen Power for lunch. Cross told Sue in the Windscreen Power office that he had just hurt his shoulder. He told her that when they were at Duo Mobile — ‘I released some vice grips on this bonnet and the ... bonnet fell on me’. Cross did not tell anyone at Duo Mobile what had happened.
Evidence of Jack Bishop
Jack Bishop (‘Bishop’), effectively the owner of Duo Mobile, gave evidence that workplace safety was the most important thing that his apprentices were taught. Although he had no personal knowledge of the incident, he said that it was a safety protocol that, if a strut was low on gas, it was necessary to warn the person working on the car. He said that, had he known that the strut was low on gas, he would have not have permitted work to be done on the car without a warning and would probably not have invited the two men in the first place. His evidence is referred to in more detail below in relation to proposed ground of appeal 2.
Answers to interrogatories
At the trial, Duo Mobile tendered Windscreen Power’s answers to interrogatories which had been served by Cross. The deponent was Rick Woodruff (‘Woodruff’), manager of Windscreen Power. Woodruff did not give evidence at the trial. Relevantly, the interrogatories and answers included:
4. At the time of the incident did [Cross] perform his duties contrary to:
…
ii. the instructions, training or directions of [Windscreen Power] and/or [Duo Mobile]?
Yes. [Cross] had been instructed not to remove vice grips from a strut unless someone was holding the bonnet.
6. Prior to the incident did [Windscreen Power] provide any instructions or training to [Cross] as to what he should do before installing the windscreen if a vehicle:
i. had the bonnet held up by multi-grips; ii. was otherwise not ready for the windscreen replacement?
Yes. [Cross] was instructed not to remove multi-grips unless someone was holding the bonnet. Two workers were sent out for the job. He was furthermore instructed that if a car was not ready for windscreen replacement, to move onto the next job and to return to do the first job when the car was ready.
…
12. Prior to the incident did [Windscreen Power] make any enquiries of [Duo Mobile] as to the vehicle’s readiness to have its windscreen replaced before [Cross] was instructed to attend at the premises of the second defendant on the day of the incident?
[Duo Mobile] requested that [Windscreen Power] attend [Duo Mobile’s] premises to replace the windscreen on the car. In almost all instances, clients including [Duo Mobile] called [Windscreen Power] when the windscreen was ready to be replaced. In the unlikely event that the car was not ready for windscreen replacement when [Cross] attended at a job, he was to move onto the next job and to return to do the first job when the car was ready.
…
18. Before the incident was any risk assessment carried out by or on behalf of:
(a) [Windscreen Power];
Yes. The risks associated with replacing a windscreen had been assessed prior to the incident and [Cross] had received instruction and direction over 25 years in relation to this task.
Trial judge’s findings
The trial judge identified the relevant risk of injury as ‘[t]he risk ... that a worker carrying out his duties under a car bonnet may suffer serious injury if the bonnet falls when he removes vice grips from a supporting strut which is low on gas’.[4]
[4]Reasons [216].
In relation to Cross’s claim in negligence against his employer, Windscreen Power, the trial judge made the following findings:
(c) ‘[I]t was not reasonably practicable for [Windscreen Power] to attend the premises and inspect the vehicle [Cross], an experienced windscreen fitter of twenty-five years, was to work on.’[5]
[5]Ibid [264].
(d) There was no evidence of any previous problems or complaints in relation to Duo Mobile’s presentation of vehicles at its premises when Windscreen Power’s employees attended to install windscreens.[6]
[6]Ibid [265].
(e) There was little evidence to support the allegation that Cross had received inadequate training.[7]
[7]Ibid [266].
(f) ‘[Windscreen Power] failed to warn [Cross] of the dangers to which he was exposed in the circumstances’.[8] By its answers to interrogatories, Windscreen Power was clearly ‘aware of the risk involved in [Cross] performing the task on the said date and, according to [Windscreen Power], had instructed him to take care and seek assistance in performing the task and also to go on to another job if the car was being worked on.’[9]
(g) Cross denied that he had received any warning from Windscreen Power.[10]
(h) Windscreen Power took no precautions to protect Cross against the risk of injury, having failed ‘to take the simple, cost-free step of warning him of it’.[11]
[8]Ibid [267].
[9]Ibid [271].
[10]Ibid [273].
[11]Ibid [275].
In relation to Cross’s claim in negligence against Duo Mobile, the trial judge made the following findings :
(i) Bishop stated in cross-examination that at Duo Mobile ‘it was a number one safety protocol if a strut was low on gas, to advise the person working on the car.’[12] Bishop’s evidence clearly showed he ‘felt a need to warn [Cross] in these circumstances’, and it was likely he ‘would have given his staff similar instructions and they would not have permitted the work to be done on the vehicle without giving that warning.’[13]
[12]Ibid [278].
[13]Ibid [279].
(j) There was no such warning given to Cross by any employees of Duo Mobile who were working at the premises on that day.[14]
[14]Ibid [280].
(k) Cross had been told by an employee of Duo Mobile ‘where the vehicle was and that it was right to work on’.[15]
[15]Ibid [281].
(l) ‘Duo Mobile had the ability to ascertain and determine the nature of the risk of injury to [Cross], as it had control over the premises and the system of work, but it did nothing. Not only did no one tell [Cross] the strut was low on gas or being propped up by vice grips, but he was directed to the vehicle to work on and allowed to complete the job.’[16]
[16]Ibid [284].
(m) Phillip Dunn, a professional mechanical engineer, gave evidence that Cross should have been warned that the bonnet was being held up by a pair of vice grips, that the vice grips would be difficult to release, that it took two people to apply the vice grips, and that the bonnet needed to be held up by a second person while the vice grips were released.[17]
(n) ‘Duo Mobile was negligent in its failure to warn or stop [Cross] working on the vehicle without assistance.’[18]
(o) Giving [Cross] the warning or advice ‘would have been a simple, costless procedure’.[19]
[17]Ibid [285].
[18]Ibid [286].
[19]Ibid [287].
In relation to the contribution claims against Duo Mobile and Windscreen Power, the trial judge concluded:
In my assessment, while [Windscreen Power] as the employer owed a non-delegable duty to [Cross] to take reasonable care for his safety, the majority of the responsibility for [Cross’s] injury rests with Duo Mobile.
Although, I found that [Windscreen Power] should have given [Cross] a warning of the dangers involved in the task performed at the premises on the said date and did not, while doing the installation at the premises, [Cross] was working under the control and supervision of Duo Mobile. Its owner, Jack Bishop, gave evidence of the appropriate safety protocols and of warning a person in [Cross’s] position of the danger of working on the vehicle in that condition.
Not only was [Cross] not warned about the risk of injury when performing that task by any Duo Mobile employee, he was directed to the specific vehicle to work on. Further, he was not told at any time during the three-quarters of an hour that the installation job took, to stop working on the vehicle. Bearing all those matters in mind, 80% of the responsibility for [Cross’s] injury should be apportioned to Duo Mobile and 20 per cent to [Windscreen Power].[20]
[20]Ibid [636]–[639].
In relation to the contributory negligence of Cross, the trial judge said:
While I accept there was a failure to warn by both defendants, and [Cross] was directed to work under the particular vehicle by Duo Mobile, he was under an obligation to care for his own safety and simply ‘assuming’ the bonnet would come down in a slow manner when he removed the vice grips was more than mere inadvertence, inattention or misjudgement and, in my view, was a disregard for his own safety.
If he was unsure why the vice grips were on the strut as he claimed, it was reasonable for him to seek assistance from [McKay] or another worker at the premises to hold the bonnet while he undid the vice grips, as Mr Dunn confirmed. It was a two-man job for a reason. [McKay] was there to help the [Cross].
I also accept that [Cross] would have had an easier task and exposed himself to less risk of injury when removing the vice grips if he had tried to do so from the front of the vehicle rather than from the driver’s side wheel area where the weight of the bonnet was much heavier. While [Cross] said it was impossible to do so, Mr Bishop thought this was an easy task. Mr Dunn said it was possible.
In all the circumstances, [Cross] ought reasonably to have foreseen his actions and failure to seek assistance, when it was available, would expose him to risk of injury and I reduce his entitlement to damages by 40 per cent.[21]
[21]Ibid [299]–[302].
Proposed grounds of appeal
The proposed grounds of appeal, directed to the apportionment of responsibility between the two tortfeasors, are as follows:
1.In concluding that 80 per cent of the responsibility for [Cross’s] injury should be apportioned to [Duo Mobile], and 20 per cent to [Windscreen Power], the primary judge erred in finding at [637] that, whilst working at the [Duo Mobile’s] premises, [Cross] was working under the control and supervision of the [Duo Mobile].
2.In concluding that 80 per cent of the responsibility for [Cross’s] injury should be apportioned to [Duo Mobile], and 20 per cent to [Windscreen Power], the primary judge erred in finding at [637] that there was evidence given by [Duo Mobile’s] owner ‘of the appropriate safety protocols and of warning a person in [Cross’s] position of working on the vehicle in that condition’.
3.The apportionment of 80 per cent of the responsibility for the [Cross’s] injury to [Duo Mobile] was manifestly excessive.
Apportionment of responsibility — review by appellate court
In Podrebersek v Australian Iron & Steel Pty Ltd, the High Court stated:
A finding on a question of apportionment is a finding upon a ‘question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds’ … Such a finding, if made by a judge, is not lightly reviewed …
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative analysis.[22]
[22][1985] HCA 34, [8], [10] (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ) (citations omitted).
Since a finding on a question of apportionment involves an evaluative determination and the exercise of a judicial discretion, appellate intervention is governed by the principles set out in House v The King.[23] Accordingly, Duo Mobile seeks to advance two grounds of specific error and a third ground which relies on the ‘residuary ground’ of error enunciated in House v The King. Under that ground, Duo Mobile contends that the apportionment to it of 80 per cent responsibility was ‘manifestly excessive’. As noted earlier, counsel for Duo Mobile advanced this contention using the expression ‘not reasonably open’, which accords with this Court’s jurisprudence on the residual ground.[24]
[23](1936) 55 CLR 499.
[24]See National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) [2015] VSCA 260, [45]; Littore v Rabobank Australia Ltd [2016] VSCA 258, [32]; Chaarani v DPP (Cth) [2018] VSCA 299, [36]–[37]; Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
We note also the doctrine of judicial restraint endorsed by the New South Wales Court of Appeal in Central Darling Shire Council v Greeney (‘Greeney’).[25] The Court there referred to an unreported decision of Kirby P in relation to evaluative determinations, albeit in a different context. Macfarlan JA said:[26]
The following comments of Kirby P, made in an unreported decision of this Court and adopted by the plurality in Singer v Berghouse [1994] HCA 40; 181 CLR 201 at 212, may be applied by analogy to an evaluative decision such as that presently under consideration:
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.
[25][2015] NSWCA 51 (‘Greeney’).
[26]Ibid [65] (Sackville AJA agreeing at [88], Beech-Jones J agreeing at [91]).
Apportionment of responsibility — specific errors
The two specific errors alleged by Duo Mobile arise out of the following findings made by the trial judge:
Although, I found that [Windscreen Power] should have given [Cross] a warning of the dangers involved in the task performed at the premises on the said date and did not, while doing the installation at the premises, [Cross] was working under the control and supervision of Duo Mobile. Its owner, Jack Bishop, gave evidence of the appropriate safety protocols and of warning a person in [Cross’s] position of the danger of working on the vehicle in that condition.
Proposed ground 1 challenges the finding that Cross was working under the control and supervision of Duo Mobile.
Proposed ground 2 challenges the finding that Bishop gave evidence of the appropriate safety protocols and required warning.
In our opinion, for reasons which follow, the findings to which proposed grounds 1 and 2 relate are entirely supported by the evidence, much of which was not contested. No specific error is made out in relation to these grounds and we would refuse leave to appeal.
Proposed ground 1: control and supervision by Duo Mobile
The finding in relation to control and supervision must be viewed in context. Read as a whole, the Reasons do not convey a finding of control and supervision in the broader employer/employee context. The finding was far more restricted, being confined to control and supervision directly associated with the workplace of Duo Mobile, the vehicle in question and, in particular, the use of vice grips clamped onto a supporting gas strut. It should be recalled that the trial judge assessed the relevant risk as being ‘[t]he risk … that a worker carrying out his duties under a car bonnet may suffer serious injury if the bonnet falls when he removes vice grips from a supporting strut which is low on gas’.[27] These were matters within the control of Duo Mobile.
[27]Reasons [216].
The short point and critical issue is that, although Duo Mobile had no relevant control or supervision over the manner in which Cross and Windscreen Power, an independent specialist operator with the relevant experience, undertook and performed its specialised work, Duo Mobile had control over the workshop and its facilities and equipment. It had control over the particular vehicle on which Cross was to work. As senior counsel for Duo Mobile properly conceded, the risk factors ‘at an immediate level’ were under its control.
The following matters are not in dispute, namely that:
·the bonnet of the vehicle was held up by a pair of vice grips clamped onto the supporting gas strut and that the strut was low in gas;
·Cross was told by an employee of Duo Mobile that the vehicle was ‘right to go’;
·Cross worked on the vehicle for an extended period of time and was not given any warning of the relevant risk by anyone at Duo Mobile; and
·Duo Mobile was aware of the relevant risk and its usual practice was to give such a warning.
Each of the matters referred to in the preceding paragraph was found by the trial judge based on the largely uncontested evidence in relation to these matters. Indeed, based on and underpinned by these facts, Duo Mobile does not contest that it was negligent. It does, however, contend that it was not more negligent (or, at least, not four times more negligent) than Windscreen Power, the employer with a non-delegable duty.
For present purposes, it is beyond dispute and sufficient that Duo Mobile had exclusive control and supervision over the relevant risk factors in the premises that Cross was working in. In relation to these risk factors, being the very factors that gave rise to the uncontested duty and breach, Duo Mobile was able to give directions to Cross to eliminate or reduce risk and — more importantly — directions to stop work. To this extent and in this specific context, Duo Mobile had control and supervision over Cross and McKay. This is all that is required and indeed all that was found by the trial judge. Read as a whole and in context, we do not consider that the Reasons were intended to or do convey any more, a position accepted by Duo Mobile during oral argument.
This conclusion is on all fours with the conclusion reached in Greeney. In that case, too, an employer under contract to a third party (the ‘Council’) sent its employee (‘Greeney’) to work at a site under the other party’s control. The employer had ample notice of a defect in the machinery which it provided to Greeney. Having chosen not to remedy the defect, the employer was held to be in breach of its non-delegable duty to Greeney. It was held responsible to the extent of 40 per cent. The employer was not on site. The Council was, however, represented on site and its officer gave Greeney a direction that led to the injury. It was held responsible to the extent of 60 per cent.
The Council’s appeal was dismissed. An issue in the case and on appeal was whether the Council had control and supervision over the employee. Macfarlan JA said:[28]
The Council further submitted that the primary judge erred in describing the Council as having ‘day-to-day control of, and supervision of, [Greeney]’ ... It asserted that the Council had no such control at the campsite. However, all that is material in this context is that [the Council’s site manager] had control of the location of the campsite and was in a position to, and did, give the direction for movement to Mr Greeney (at a time when [the manager] should have appreciated that compliance would involve a not insignificant risk of injury to Mr Greeney).
[28]Greeney [2015] NSWCA 51, [60] (Sackville AJA agreeing at [88], Beech-Jones J agreeing at [91]). At [89], Sackville AJA considered that the employer had ‘a high level of culpability’ but at [90] said ‘in the absence of an error of principle by the primary Judge, this Court should not interfere with the primary Judge’s apportionment’.
For these reasons, leave to appeal on this proposed ground is refused.
Proposed ground 2: Duo Mobile’s safety protocols
In our view, Bishop’s evidence concerning Duo Mobile’s safety protocols was sufficiently clear and unequivocal. In cross-examination, the following exchange took place:
[Counsel for Cross]: Yes. But if you were inviting into your workshop other trades including windscreen replacement people, the likes of Mr Cross and his colleague — [Bishop:] Yep.
And you were aware of a defective strut or a strut that was potentially low on gas, I take it as part of your safety protocol, that you would bring it to your [sic] attention and say ‘Be careful’? — Yeah – – –
‘It’s not flash’? — I can’t – I – I would definitely. Like I said, my majority, at the end of the day everyone’s got to go home. It can be a bit of a horrible job cutting your hands and hitting your head and lifting tyres off, and, um, but we all want to go home safe so anything, I think, is a risk, I probably wouldn’t invite them in the first place.
Yes? — Um, I’m not sure, on a lot of cars you have to lift bonnets to do windscreens, so to know if a bonnet needs to be up or down to do a windscreen I’m not sure. They’ve got to remove so many different panels on different cars. That’s something Windscreen Power would lift a bonnet or shut a bonnet if they needed to. Knowing things hold stuff up, oh look, they only have to ask, there’s always someone around. My blokes know if they go inside, if they’re not confident with something, leave it, walk away.
Yes, but are you aware of any instruction given by any member of your staff to Mr Cross and his colleague from Windscreen Power on 25 May 2012 to look out, be aware of the danger with this defective, that is low in gas, gas strut? — I can’t recall the car so I definitely can’t recall any of that, no.[29]
[29]Emphasis added.
When Bishop was asked whether, as part of its safety protocols, Duo Mobile would have warned a worker in Cross’s position about the defective gas strut, he answered: ‘Yeah’. He then immediately confirmed his affirmative answer with the words: ‘I would definitely’.
Based on Bishop’s evidence and, importantly, on her own observations of him giving evidence, the trial judge made the following findings:
Jack Bishop was a straightforward and truthful witness. While he knew nothing of the incident circumstances, he seemed to have a genuine concern for the safety of those working on the premises, explaining the safety protocols he had in operation on the said date.
…
As [Duo Mobile’s] manager, Mr Bishop, stated in cross-examination, it was a number one safety protocol if a strut was low on gas, to advise the person working on the car. There was a risk and he ‘probably would not invite them in the first place’.
While he has no knowledge of the incident being made aware [of it] six years later, these comments clearly show Mr Bishop felt a need to warn [Cross] in these circumstances, with no qualification by him based on [Cross’s] lengthy experience working on cars. The likelihood is that Mr Bishop would have given his staff similar instructions and they would not have permitted work to be done on the vehicle without giving that warning.[30]
[30]Reasons [201], [278]–[279].
In our opinion these findings were entirely open to her Honour on the evidence and on the observations she made. They are a fair summary of Bishop’s evidence, albeit a somewhat compressed one.
Duo Mobile submitted that the more general evidence given by Bishop — in particular, the emphasised passage above about going home safe and if ‘anything is a risk’, he ‘wouldn’t invite them in in the first place’ — should be understood as qualifying his earlier answers. This passage meant, it was said, that ‘everything is a risk in life, and if that’s what I thought I wouldn’t let them in’. It didn’t mean, as her Honour found, that in relation to this specific risk, Bishop would not have let a person in Cross’s position in the workplace. Duo Mobile submitted that the trial judge had ‘overstated’ this aspect of Bishop’s evidence.
We accept that the passage of evidence highlighted in the quoted extract at [41], above, is somewhat ambiguous, particularly when simply read on the page, rather than seen and heard. In that regard the trial judge had a considerable advantage over us, sitting as an appellate court. We see no basis to disturb the trial judge’s finding that Bishop’s evidence was to the effect that, although he was personally unaware of the risk, had he known of the risk he probably would not have invited Cross onto the premises.
In any event, in our opinion, Bishop’s general remarks about risk did not in any way qualify or detract from his specific evidence that, as part of the safety protocol, ‘windscreen replacement people’ like Cross ‘would definitely’ be told to be careful in the event ‘of a defective strut or a strut that was potentially low on gas’. He was merely emphatically confirming his answer to a specific question.
We refuse leave to appeal on this proposed ground.
Apportionment of responsibility: was it reasonably open to allocate 80 per cent of the responsibility to Duo Mobile?
Having rejected proposed grounds 1 and 2, alleging specific error, the final issue is whether the applicant has succeeded in establishing that the apportionment of responsibility as to 80 per cent to Duo Mobile was not reasonably open in the circumstances of the case. A finding on apportionment involves a weighing of a number of considerations. As the High Court said in Podrebersek, the apportionment of responsibility ‘involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage’.[31] The latter notion of the causal importance of a breach of duty is often referred to in this context as its ‘causal potency’.[32]
[31][1985] HCA 85, [10] (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).
[32]See, eg, Papadopoulos v MC Labour Hire Services Pty Ltd [No 4] [2009] VSC 193, [76].
As noted earlier, Duo Mobile submitted that its contribution to the loss was not four times as much as Windscreen Power.[33] It submitted that, on a proper consideration of the whole of the evidence, the contribution to loss was equal (or possibly 60/40) and that an evaluation of 80/20 was therefore manifestly excessive. It submitted that the evaluative process had miscarried.
[33]Duo Mobile referred to Moore v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2004] VSCA 152, in which this Court did not accept that the liability of certain parties was five times greater than other parties. Of course, as that case illustrates, each case must be considered on its own peculiar facts and circumstances. The principles concerning appellate intervention were accepted and applied.
Duo Mobile identified a number of matters as demonstrating that Windscreen Power’s share of responsibility had been seriously understated. First, Windscreen Power’s duty of care as the employer of Cross was non-delegable. Secondly, by the answers to interrogatories, Windscreen Power was aware of the precise risk and, over a period of 25 years, gave no specific warning. Its knowledge of the relevant risk was, it was submitted, equal to that of Duo Mobile. Thirdly, it had the specialised knowledge of the work which its employee was to undertake.
For its part, Windscreen Power sought to justify the higher apportionment of liability to Duo Mobile on the basis of the following eight factors:
·Duo Mobile had possession of the vehicle and therefore had control over the state in which the vehicle was presented to Cross.
·Duo Mobile was responsible for clamping the vice grips onto the low gas strut in order to hold up the bonnet, and was therefore responsible for creating the physical risk of injury.
·Duo Mobile knew or should have known that the strut was low on gas.
·Windscreen Power had no knowledge at all about the state of the vehicle on the premises, including that the gas strut was defective and that the bonnet was entirely supported by vice grips.
·It was not reasonably practicable for Windscreen Power to attend the premises and inspect every vehicle Cross had to work on.
·When Cross arrived at Duo Mobile, one of Duo Mobile’s employees guided or directed him to the vehicle, which Duo Mobile had left with the bonnet open, and told him it was ‘right to go’.
·Duo Mobile knew that a worker in Cross’s position should have been warned about the risk associated with the low gas strut.
·Duo Mobile nonetheless permitted Cross to work on the vehicle for 45 minutes without stopping him and without providing him with any warning as to the risk of injury presented by the state of the vehicle.
At the hearing of the appeal Due Mobile did not dispute any of these propositions, although it contended that some were ‘overstated’.
In our opinion the 80/20 apportionment was reasonably open to the trial judge in the circumstances of the case. For the reasons given below, her Honour was entitled to view both the culpability of Duo Mobile — that is, the extent of its negligence — and the ‘causal potency’ of its safety breaches as being substantially greater than (respectively) the culpability of Windscreen Power and the causal potency of its failure to warn Cross of the risk. What is, in our opinion, of very great importance is that it was Duo Mobile which had created the risk of injury, by propping up the bonnet with vice grips. It therefore had knowledge of the existence of an immediate risk attaching to the vehicle which, as it knew, was to be worked on that day by Windscreen Power employees. Windscreen Power had no such knowledge. And this was a very serious risk, as Bishop candidly acknowledged.
The second — and related — matter of real significance is the trial judge’s unchallenged finding that Duo Mobile was negligent in two distinct ways: it failed to warn Cross, then and there, of the risk with the bonnet, and it failed to tell him to stop work on the vehicle. Given Bishop’s evidence about the applicable safety protocols, these were serious breaches of its duty of care and, self-evidently, both breaches were of high causal potency. Had Duo Mobile done either of those things, the accident would not have occurred.
By contrast, her Honour found that Windscreen Power’s duty of care to Cross did not require either that it should have attended at the Duo Mobile premises that day or that it should have given Cross a warning that morning of the risk which might arise if the vehicle had its bonnet propped up in that way. This analysis exposes the stark difference in culpability, and in causal potency, between the respective breaches of duty. As her Honour correctly concluded, the causal potency of Windscreen Power’s breach was ‘insignificant compared to Duo Mobile’.[34]
[34]Reasons [633(b)].
Once it is accepted that the culpability and causal potency of the two parties was not equal, the critical question becomes whether it was open to the judge to conclude that the conduct or contribution to loss was four times greater; that is, whether the percentages of 80 per cent and 20 per cent were not open.
Although we might have selected a slightly different division as between the two tortfeasors, in our opinion the trial judge did not err in her attribution of 20 per cent of the causative effect to the breach by Windscreen Power and 80 per cent of the causative effect of the breach to Duo Mobile. The attribution of 80 per cent to Duo Mobile was not manifestly excessive in the sense necessary to permit appellate intervention.
We now refer briefly to key aspects of the evidence. The expert evidence of Phillip Dunn, a mechanical engineer operating his own motor repair business, dealt with a number of important matters relating to the relevant risk, as follows:
·The car should not have been presented to Cross with the bonnet up. Usually, a vehicle was not presented with the bonnet up.
·Unlike a mechanic who needs to open the bonnet of every car to work on, a windscreen fitter would be less likely to be aware of a failing gas strut and would not use vice grips, which would not be a part of his toolkit.
·Most motor mechanics would have encountered soft gas struts and this condition would be obvious when someone attempted to open the bonnet because of the force required to open it, as it would not stay open on its own. Once the bonnet got past 10 or 15 degrees, the strut should start to assist with lifting the bonnet. If this did not occur, it would be immediately apparent because the bonnet would be hard to lift.
·The use of a pair of vice grips on a strut is an unreliable way to secure or hold up the bonnet. He would not recommend it to anyone and would never use it. If vice grips were used they would need to be very tightly applied and would consequently be very difficult to release.
·The workplace was unsafe. Cross should have been warned to be careful of the bonnet because the strut was faulty and the bonnet was being held up by a pair of vice grips. The grips were very tightly applied and would be difficult to release. When they were to be released, there would be a need for the help of an assistant to hold up the bonnet while the vice grips were released. This was not a matter relating to the repair or replacement of a windscreen, but rather an unsafe workplace.
We referred earlier to Bishop’s evidence in relation to Duo Mobile’s safety protocols. Bishop, who was regarded as ‘a straightforward and truthful witness’ by the trial judge, confirmed in unequivocal terms that he would have advised a worker in Cross’s position about the defective gas strut. As we have said, there was a risk in the workshop, presenting on the day and known by the operator of the workshop, who nonetheless said nothing in circumstances when the operator should have given a warning, in accordance with its own safety protocol.
The evidence of Cross was to the following effect:
·He had never seen vice grips holding a bonnet up.
·A bonnet being up was ‘pretty rare’.
·He had dealt with many XF Falcons before, but never had to shut a bonnet on one when dealing with the windscreen and never dealt with an XF with a bad strut.
Windscreen Power failed to warn Cross about a risk of injury that he might potentially encounter at some unspecified time in the future. As the trial judge found, it was negligent in that regard. However, it was accepted that this warning need not have been given each time a worker attended at another entity’s premises to work on a windscreen. It could have been given many months prior to the accident.
The culpability attaching to a failure to warn of a risk depends on what the duty holder knows (or ought to know) about both the likelihood of the risk eventuating and the degree of harm which will result if it does.[35] In this case, the two defendants had the same appreciation of the harm which would result if the risk eventuated but had quite different levels of awareness of the likelihood of that happening on that day.
[35]Wyong Shire Council v Shirt (1980) 146 CLR 40, 47; [1980] HCA 12.
As far as Windscreen Power was aware, an incident of this type had never happened before in relation to its workers. From its perspective, therefore, the likelihood of a risk eventuating specifically with respect to the clamping of vice grips on a low gas strut — workshop and workplace type matters — was remote (albeit foreseeable). There was, from its perspective, a very limited chance of that occurring. Duo Mobile, on the other hand, had specific knowledge in relation to the actual risk of injury as it manifested on the day, a risk which it had itself created.
There was discussion on the appeal about the respective obligations of Duo Mobile and Windscreen Power to provide a safe system of work. It was, of course, part of Windscreen Power’s non-delegable duty of care to Cross to devise a safe system of work for the installation of windscreens. But Duo Mobile had engaged Windscreen Power as an independent operator to do work at its premises, in order for Duo Mobile to fulfil its contract to provide car repair services to its customer. In the circumstances, as discussed under proposed ground 1, the trial judge’s finding that Duo Mobile ‘had control over the premises and the system of work’ was plainly correct. It owed Cross a duty to ensure that the system of work which it set up for the repair of cars was safe for him to participate in.[36]
[36]See, eg, Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, 30–31; [1986] HCA 1.
As Cross’s employer, Windscreen Power likewise had a duty to take reasonable care to ensure that the work practices and systems were reasonably safe.[37] This duty includes the requirement to provide instructions in the performance of the work where this might reasonably be thought necessary to protect workers from the risk of injury.[38] There are a number of factors that are relevant to a consideration of the extent of the duty and an assessment of any breach. First, the greater the danger, and the easier the precautions, the greater the burden on the employer to warn and provide instructions in relation to the relevant risk. Where an employee knows of the danger the position may be different. Secondly, the more inexperienced and less skilled the worker, the more instruction or support the employer must provide. By contrast, the more experienced the worker the more the worker can be left to get on with the job.[39] Of course, an employee must also take care for their own safety. Thirdly, the precautions that need to be taken are against a foreseeable risk. Fourthly, there is no duty of constant or continuous supervision of employees in the workplace to guard against any dangers they may face. An employer is entitled to assume that an employee will not take unnecessary risks.
[37]Karatzidis v Victorian Railways Commissioners [1971] VR 360.
[38]O’Connor v Commissioner for Government Transport (1954) 100 CLR 225; [1954] HCA 11.
[39]Akkari v Western Australian Government Railways Commission [1968] WAR 182.
When assessing the negligence of Windscreen Power (that is, the content and extent of the duty and its breach), the following matters are relevant. First, Cross was a very experienced worker. He had never come across this situation in over 25 years. It was not a situation or risk of any frequency. Secondly, Windscreen Power sent a second worker (McKay) specifically to assist Cross. It was not required to supervise this assistance. The on the spot decision by Cross not to call for assistance from McKay — which assistance provided by Windscreen Power would have avoided the accident — not only rendered Cross a substantial contributor to his loss and damage, but also places the contribution and responsibility of Windscreen Power in context and degree. On appeal, it accepted that a warning about this kind of risk should have been given at some stage. For this failure it bears the appropriate responsibility. But no more.
Although the answers to interrogatories, heavily relied on by Duo Mobile, provide, as contended, an evidential foundation for a finding that Windscreen Power was fully aware of the relevant risk, reliance on the answers is problematic. They were tendered by consent but Woodruff did not give viva voce evidence. The trial judge rejected the evidence in the interrogatories comprising the answers relating to directions and instructions given to Cross about the relevant risk, because Cross denied receiving such instructions and Woodruff was not called. The trial judge accepted that Cross had received instruction and direction, from Windscreen Power, in relation to his craft, over the previous 25 years. Cross gave evidence to such effect. But the trial judge found that Windscreen Power had not warned Cross of the dangers of working on a vehicle where the bonnet was supported by a strut low on gas, with the addition of vice grips.
In our opinion the submission that the knowledge of Duo Mobile and Windscreen Power was equal is an oversimplification and a distraction from the critical practical issue of comparative responsibility. It is one thing to know about a future potential risk that might occur at another person’s premises. It is another to create the risk and know that it is present and workers are (presently) exposed. The knowledge is in one sense the same — there is a risk — but the circumstances which give rise to the breach and its causative effect are markedly different.
Her Honour’s conclusion that Cross bore 40 per cent responsibility meant that Windscreen Power bore 12 per cent responsibility (20 per cent of the remaining 60 per cent) and Duo Mobile bore 48 per cent responsibility (80 per cent of the remaining 60 per cent). Thus, employer and employee together bore 52 per cent and the operator of the workshop bore 48 per cent of the responsibility. For the reasons we have given, it was reasonably open to her Honour to arrive at that apportionment.
We grant leave to appeal on proposed ground 3 but dismiss the appeal.
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