Popovic v Rodevan Pty Ltd
[2010] VSC 191
•12 May 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2009 06532
| MICHAEL POPOVIC | Plaintiff |
| v | |
| RODEVAN PTY LTD | First Defendant |
| and | |
| AUSTRALIAN AIR EXPRESS PTY LTD | Second Defendant |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 27-28 April 2010 | |
DATE OF JUDGMENT: | 12 May 2010 | |
CASE MAY BE CITED AS: | Popovic v Rodevan Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 191 | |
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ACCIDENT COMPENSATION – Industrial accident – Contribution between defendants –Negligence - Breach of statutory duty – Occupational Health and Safety (Manual Handling) Regulations 1999 – Labour hire agreement – Basis of liability – Liability under settlement agreement - Extent of contribution - s 23B, s 24 Wrongs Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with Mr A Ingram | Clark Toop & Taylor |
| For the First Defendant | Mr R Stanley QC with Mr N Rattray | Lander & Rogers |
| For the Second Defendant | Mr M Stiffe | Clarke Legal |
HER HONOUR:
The applications
From about 12 November 2003, the first defendant (‘Rodevan’) hired out the services of the plaintiff, Mr Popovic, as a freight handler, to the second defendant (‘AaE’). Mr Popovic injured his back whilst unloading a heavy item of freight at AaE’s East Street site at Tullamarine Airport on 26 May 2004 (‘the incident’). He brought this proceeding seeking damages from each of the defendants. He alleged that they were liable to him in negligence and for breaches of their statutory duties under regs 12, 13, 14 and 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999 (‘the regulations). He has settled his claims with them. Each of the two defendants now claims contribution from the other in relation to its liability under the settlement agreement under s 24(2) of the Wrongs Act 1958 (‘the Act’). Each relies upon the other’s alleged negligence and breach of statutory duty.
The issues
AaE submits that it negligently failed to provide Mr Popovic with a safe system of work to deal with a manual handling hazard represented by unmarked heavy items of freight to be unloaded. AaE accepts that it is liable, accordingly, in negligence and for breach of its statutory duty under regs 13 to 15 of the regulations in respect of Mr Popovic’s damage. (I note that there was no issue raised as to whether AaE could be liable for breach of statutory duty.)
Rodevan, on the other hand, argues that AaE is only liable vicariously for a casual or collateral act of negligence on the part of one of its employees. It maintains that AaE was not negligent and did not breach its statutory duty to Mr Popovic. Rodevan contends that its own relevant liability to Mr Popovic arises only under the settlement agreement which requires it to make a payment to him.
The issues for the Court are as to the basis of each defendant’s liability to Mr Popovic and the extent to which any contribution should be made.
The Act
It is not necessary that the defendants each be liable to Mr Popovic as tort-feasors before contribution can be ordered. Section 23B(4) of the Act makes it clear that relevant liability may arise under a settlement agreement.
The evidence
Evidence was given in the applications by Mr Popovic, Mr Nathan Croughan, the State Operations Manager employed by Rodevan in May 2004, and Mr Mark Canavan, who was AaE’s State Operations Manager at the same time.
The facts
I am satisfied of the following facts.
Rodevan conducted a blue collar labour hire business under the name ‘Temporarily Yours’. Mr Croughan had started working with Rodevan in its Temporarily Yours business in July 2001. From that date up to 26 May 2004, Rodevan had supplied freight sorting personnel to work at AaE’s various depots. This arrangement continued on an informal basis until about 2007 when a ‘preferred supplier agreement’ was entered into.
Between 2001 and 2004, after the demise of Ansett Airlines, Rodevan was supplying some 30 or 40 staff to work various shifts at AaE’s Tullamarine Airport facilities. By 2004, the numbers had fallen to between a minimum of three and about 20. As I have noted, Mr Popovic commenced work at AaE’s East Street premises at Tullamarine Airport in November 2003.
Mr Croughan of Rodevan dealt primarily with Mr Peter Aqualina, the AaE night shift duty manager. Mr Aqualina dealt with shift filling and incidents which occurred during the night shift. Mr Croughan also had dealings with a Mr Darren Cassar and, when necessary, with AaE’s State Operations Manager, Mr Canavan. Mr Aqualina reported to Mr Canavan.
Mr Canavan had been AaE’s State Operations Manager for some four years by May 2004. His contact with Mr Croughan had related to what he described as ‘our contractual arrangements and our business relationships’. During Mr Canavan’s four years as AaE’s State Operation Manager, he had worked on the night shift periodically and had spoken daily with the night operations manager.
Freight was shipped by AaE in aircraft freight containers known as ‘cans’. They were of various heights and were often low enough to require most freight handlers to stoop when inside them. When working at the AaE East Street premises, Mr Canavan had had the opportunity to observe the unloading of the cans.
Most of the cans came through major ports and Mr Canavan’s view was that ‘the majority’ of the freight in the cans would have been weighed at a major port. Cans could, however, have been ‘topped up’ with freight from other sources which might not have been weighed. Freight which had already been packed into a freight cage known as a ‘stillage bin’ could also have arrived for loading directly into a can at a major port, having bypassed the port’s weighing facility under the AaE process in place at the time of the incident in May 2004. Mr Croughan was aware that freight loaded by a customer into a stillage bin might be unloaded directly into a can before transportation. As far as Mr Canavan was aware, the ‘overwhelming majority’ of freight was handled by an AaE employee or contract labourer before it was loaded into a can by another such person.
In light of aircraft carrying capacities, AaE was concerned about the total weight of a can. As it was selling space on an aircraft, AaE required its customers to state the weight of items consigned for the purpose of calculating the charges with reference to the weight and cubic dimensions of the items. The weight was noted in writing on the item, in what was described as ‘normal type’ sized font. AaE also required that the item’s weight be recorded in the consignment note.
Rodevan conducted its own induction interview process for workers like Mr Popovic whose services were to be hired out to AaE. Mr Croughan provided such candidates with hard copy slide presentation materials supplied by AaE and took them through the document during the induction interview. The document described manual handling procedures, giving instructions for warm-up stretching, as well as the following warning and instruction:
Common causes of injury …
SUDDEN UNEXPECTED MOVEMENTS
· Risk of injury when freight is overloaded or has moved during transport and becomes unstable. Also when item is much lighter or heavier than expected. Therefore, need to check weight before lifting. Do this by pushing with hand/foot to judge weight and/or looking for caution sticker.
AaE itself also provided an induction for the workers supplied by Rodevan. Mr Croughan had witnessed and experienced the AaE process. In his opinion, AaE was extremely conscious of safety and he described its approach to the issue as being ‘borderline over the top.’
AaE Standard Operating Procedure
By May 2004, Mr Croughan had received from AaE its ‘Standard Operating Procedure SOP 32A’ document effective from December 2003 (‘the SOP’).
The SOP had a sub-heading ‘Use of Freight CAUTION Label’. The document referred to Commonwealth and State occupational health and safety legislation and manual handling regulations, as well as the WorkSafe Australia Manual Handling National Standard and Code of Practice and AaE’s own Manual Handling Procedure.
The SOP stated:
1. Background
In keeping with AaE manual handling procedures and guidelines as well as commonwealth and state legislation, this procedure outlines AaE requirement to identify and label individual freight items that weigh 25 kg or freight that is difficult or awkward to lift. The label used to identify the freight is a green “CAUTION” ….
The SOP’s stated purpose was to give ‘AaE employees, contractors or customers handling freight a visual identification of freight items weighing 25kg or difficult or awkward to lift and ensure health & safety of all persons handling AaE freight.’
The SOP also stated under ‘General Requirements’ that all freight identified as 25kgs or difficult or awkward to lift ‘MUST’ have a CAUTION sticker attached with the weight noted on the sticker itself.
The SOP allocated ‘Responsibilities’ in relation to the marking of heavy freight with the caution sticker. Sales executives were ‘responsible to identify customers who potentially will consign freight in excess of 25kgs.’ Customers were to be supplied with caution stickers to identify such items and those difficult or awkward to lift. Drivers (who might not be employed by AaE) were to attach stickers to freight received from customers which was of that type. The actual weight was to be recorded on the sticker if the item was weighed at a depot. ‘Acceptance personnel’ were required to attach stickers. Finally, ‘All AaE Employees’ were required to do the same at any stage during freight handling. Identified non-compliance was to be reported.
In Mr Canavan’s opinion, AaE had developed the SOP to avoid, as far as possible, the risk of injury to its workers from lifting heavy freight items. AaE knew that injury might result from someone lifting an item that was unexpectedly heavy.
As far as Mr Croughan was aware in May 2004, Mr Popovic frequently had to lift items from the floor of the can which varied in weight from about half a kilogram to 25kgs or more. Rodevan instructed its employees not to lift any item weighing more than 25kgs without assistance and Mr Croughan was ‘fairly confident’ at the time of his evidence in the applications that AaE ‘supported the same view’. Mr Croughan was, nevertheless, aware that freight handlers at the AaE East Street site might, from time to time, be obliged to lift weights of in excess of 25kgs unassisted. He was also aware that an AaE can might be one of three sizes, one of which was 194cms high.
Mr Croughan said that he had never had any reason to be concerned about safety issues with regard to Rodevan’s employees working with AaE. He said that he could not recall one of those employees suffering a back injury.
Under the AaE system of work, only AaE staff would load a can of freight. If a heavy item had not had a caution sticker placed on it by the customer, collecting driver or acceptance personnel, the AaE worker loading the can might not examine the weight information unless the item looked heavy. According to Mr Canavan, if an item were small, there was a chance that this would not be done and, indeed, he was aware at the time he gave his evidence that AaE loading personnel would not look at the weight of every item before putting it into the can.
Mr Popovic was aware that the AaE system provided that items weighing 25kgs or more would have a ‘heavy caution’ sticker on them. In his experience, however, an item might have to be unloaded under pressure during the early hours of the morning and he would not stop to think about its weight. During most shifts there were times when he and his colleagues were working under the pressure of time constraints as a result of the arrival or departure of trucks picking up freight.
On 26 May 2004, Mr Popovic was both employed by Rodevan and working as a freight handler for AaE at its East Street site. Since Mr Popovic had commenced with AaE in November 2003, Mr Croughan had received feedback to the effect that he was a very good and capable employee who, amongst other things undertook his duties well.
As far as lifting heavy items was concerned, Mr Popovic would ask for assistance when lifting anything marked ‘heavier’. He and others had been told never to lift anything weighing more than 25kgs unassisted, especially if the item was marked as heavy. It was his impression that sometimes heavy items were marked that way and that sometimes they were not. In his experience, the weight was normally written on a caution sticker.
Mr Popovic always sought assistance to lift items weighing more than 25kgs. He had frequently lifted items weighing 30 or 40kgs with assistance in the past and had done so, bent over, within the confines of a can. Occasionally, he had lifted an item weighing more than 25kgs unassisted when he had sought assistance and failed to obtain it. He was aware of the instructions to lift any item with a straight back and bent legs where possible.
An unloading team could be working under pressure at night, as a result of the volume of freight coming into the warehouse at any one time and the times at which trucks would arrive to pick up freight for delivery.
It appears that Mr Croughan had access to AaE sites on occasions. He attended the East Street premises where Mr Popovic worked at least twice a month. When there, he had also attended ‘toolbox meetings’. These were generally informal meetings at which personnel were informed about the expected volume of work and other operational matters such as freighter delays. Mr Croughan explained that he maintained this presence to let Rodevan personnel working on the AaE site know that the company was concerned about the nature of their tasks and to maintain personal relationships with them. He thought that the Rodevan workers were aware that any safety issues were to be raised immediately and that they could have been raised during his visits. Mr Popovic had never seen Mr Croughan at AaE’s premises at night. They had only met once, when Mr Popovic was interviewed for the AaE job. He had, however, had weekly telephone contact with Mr Croughan in relation to the days and hours he would be working.
Mr Croughan conducted site risk assessments at AaE’s East Street site. He recorded his findings as answers to questions in a ‘Site Assessment Form’. One such form, dated 5 July 2005, is in evidence. Mr Croughan said that the same questions would have appeared in a similar document which would have been completed in 2004, although Rodevan was unable to produce any document relating to an assessment of the site at the relevant time.
There was a ‘Manual Handling Checklist’ in the Site Assessment Form with a ‘Task & Load’ section. That section referred to such matters as whether loads were difficult or awkward to handle, but contained no questions as to the weight of the freight items to be handled.
Mr Croughan also completed a ‘Blue Collar OHS Questionnaire & Walkthrough Checklist’ when he attended AaE premises. He produced a document completed on 11 July 2006, but not a version covering 2004. The checklist contained a number of questions which would appear to have been asked of an AaE representative. They were directed generally at matters such as induction and job training, hazard identification and risk assessment. The checklist also addressed staff exposure to ‘hazardous manual handling activities’, excessive noise and adverse environmental conditions, as well as their involvement in work at heights. It canvassed the existence of a manual handling policy and the promotion of safe manual handling techniques and risk assessment relating to specific manual handling tasks. Mr Croughan had noted that manual handling induction was undertaken.
In a ‘Job Safety Assessment’ form also completed on 11 July 2006, Mr Croughan identified manual handling at the East Street site as a ‘medium’ rated ‘Potential Hazard’. He identified as ‘Controls’, ‘Warm Up Before Wk’, ‘Don’t lift over 20 kg’ and ‘Two Person Lift’. The description of a ‘medium’ rating was ‘[p]otential to cause one or more lost time injuries. If unsatisfactory controls are observed then the hazard needs to be reported to Temporarily Yours to determine appropriate action.’
The incident
On 26 May 2004, Mr Popovic was a member of a night shift team unloading a can. He was inside the can. He was bent at the waist when he attempted to lift a box with the dimensions of 45 x 45 x 30cms. There was nothing on the box or anything about its appearance to indicate its weight to Mr Popovic and he did not expect it to be heavy. He lifted it with both hands, placing one on one side and the other on the opposite side. He had no time to assess its weight before lifting it. He estimated that the box in fact weighed about 30-40kgs. Mr Popovic would not have attempted to lift the item without seeking assistance, if it had borne a caution sticker.
Mr Popovic is six foot eight inches tall and some of the cans (which came in three sizes) were 194cms high. That night, not only had he been forced to stoop inside the can, but he had also needed to pay attention to the whereabouts of his head to avoid injury from the can’s sharp edges since he was not wearing protective headgear. After picking up the heavy item, he immediately felt severe pain in his back, all the way down his right leg and part of the way down his left. This was the back injury the subject of this claim in the proceeding. He had never had any relevant problems with his back.
Post incident
I note that the Job Safety Assessment Form completed by Mr Croughan on 11 July 2006 itself identifies the AaE restriction against lifting more than 20kgs without assistance as one of the ‘Controls’ in relation to the identified ‘medium’ rated hazard of manual handling by freight sorters.
Submissions
It is common ground for the purposes of these applications that Mr Popovic was injured on 24 May 2004 when he lifted the offending heavy item. It is also common ground that each of Rodevan and AaE owed him the alleged statutory duties under the regulations[1] and a duty to take reasonable care to provide him with a safe system of work. That duty was non-delegable in the sense that it would continue to exist even if the system of work were actually to be provided by another. The party with the non-delegable duty would be liable for the negligence of the person to whom the performance of its obligation was delegated.
[1]See Papadopoulos v MC Labour Hire Services Pty Ltd & Anor (Ruling No 1) [2009] VSC 175.
As I have noted, AaE submits that its negligence was a cause of the injury to Mr Popovic. AaE maintains that both defendants should be found negligent. A proper system of work would have ensured that a caution sticker would be applied to an item weighing in excess of 25kgs because such an item constituted a hazard in terms of the risk of injury to a worker lifting it unaware of its heavy weight.
Counsel for AaE contends that the evidence establishes that not all items were weighed under its supervision or control and that items heavier than 25kgs sometimes appeared in cans without caution stickers attached. The system of work did not involve the weighing of all items which might end up in a can. There was no written document which required there to be a point at which every freight item was weighed and a sticker applied. Unmarked heavy items could then be picked up by workers in stooped positions. Counsel for AaE relies upon Mr Popovic’s evidence that he at times lifted weights of up to 30kgs by himself.
In relation to the issue of apportionment, counsel for AaE argues that Rodevan should have been aware of the flaws in the system because appropriate enquiries would have revealed them. Rodevan should have asked what weights were being lifted and how frequently heavier items were being lifted. In effect, it turned a blind eye to the reality that items weighing 25kgs or more were being loaded into cans without appropriate caution stickers, with sufficient regularity to raise a concern.
Counsel for Rodevan submit that AaE should be regarded as only vicariously liable for a casual or collateral act of negligence on the part of an employee or other person who failed to put a caution sticker on the item lifted by Mr Popovic. AaE did not breach its obligation to provide a safe system of work. In the circumstances, Rodevan did not breach its own non-delegable duty of care to Mr Popovic.
Counsel for Rodevan remind the Court that the obligation to take reasonable care to provide a safe system of work does not amount to one of strict liability or require that a worker be kept safe from all harm. Rodevan contends that it did take reasonable care to provide Mr Popovic with a safe system of work. It says that AaE had a safe system of work and that Rodevan knew of it and relied upon it.
Rodevan argues that there was no way, in the circumstances, that it could have guarded against or avoided what was the breakdown of the safe system of work. Counsel for Rodevan argue that it took an active interest in whether AaE had set up a proper and safe system and made appropriate enquiries. Rodevan relies in this regard upon Mr Croughan’s evidence about his visits to AaE’s premises and his discussions with not only Rodevan’s employees but also AaE’s managers and other staff during his visits. They submit that Rodevan had no reason to believe that the system of work was not operating safely.
Senior counsel refers to Wodak J’s decision to a similar effect in Frank Krasser v Adecco Holdings Pty Limited & Onesteel Trading Pty Ltd.[2]In Krasser, his Honour was not prepared to infer that there was any defect in the system of work where there was no evidentiary basis for the inference.[3] The plaintiff had not satisfied his burden of establishing that his employer was in breach of its non-delegable duty of care.
[2](Unreported, County Court of Victoria, Judge Wodak, 10 October 2003).
[3]Ibid, 188.
Counsel for Rodevan then submit that, even if the Court were to reject their argument that Mr Popovic’s injury was attributable to a casual act of negligence, it should, nevertheless, go so far as to require AaE to grant their client a complete indemnity or, alternatively, to order that it contribute only between zero and
10 per cent of the amount payable to Mr Popovic in all the circumstances.
Discussion and conclusions
Liability
Each of the defendants had a duty at common law to take reasonable care to provide Mr Popovic with a safe system of work, although the obligation was not one to ensure that no harm came to him. The duty owed by each defendant was that of a reasonably prudent employer or provider of a system of work to take reasonable care not to expose a worker such as Mr Popovic to unnecessary risk of injury; it was not absolute.[4]
[4]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 98, (Hayne J).
Rodevan was Mr Popovic’s employer. AaE’s duties arose because of the nature of its relationship with Mr Popovic who had been working at its premises for some five months. It controlled his work and the manner in which it was carried out. Neither defendant could escape responsibility for the failure of another person to whom the performance of its duty had been entrusted.[5]
[5]Kondis v State Transport Authority (1984) 154 CLR 672, 687-8 (Mason J).
I am not persuaded by reference to Krasser that AaE is only vicariously liable for a casual act of negligence of an employee in this case, even though such a conclusion would be open to me despite AaE’s purported concession of a breach of its duty to provide Mr Popovic with a safe system of work.
I do conclude that AaE breached its duty of care and its statutory duties under the regulations as alleged. I note that I am persuaded that this conclusion is open to me on the evidence despite the absence of relevant expert testimony and despite my taking into account AaE’s failure to call Mr Aqualina to give evidence.
Under AaE’s SOP, the obligation to assess whether an item weighed 25kgs or more was, in effect, spread amongst a number of people, including ‘all AaE employees’. But the system did not provide for individual items to be weighed and marked with a caution sticker at any specific designated point in the process. Even goods accepted at major airports might arrive at the can for loading in stillage bins and avoid the general weighing process. Mr Canavan knew or ought to have known at relevant times that the system allowed heavy items to come through to be unloaded from cans without caution stickers attached.
Mr Canavan also reasonably ought to have known that cans would at times be unloaded under time constraints which would put pressure on a freight handler and reduce the likelihood of the weight on the consignment document on an unmarked heavy item being noticed, particularly if the size or shape of the item did not suggest that it might be too heavy to be lifted without assistance.
In the circumstances, the presence of an unmarked heavy item created a manual handling hazard and it was reasonably foreseeable that someone unloading a can might be injured as a result.
In my opinion, in the exercise of its obligation to take reasonable care for the safety of Mr Popovic, AaE ought reasonably have provided him with a system of work under which there was a process for the weighing and, where necessary, the labelling with caution stickers of individual freight items at some designated point before the items were unloaded from the cans. There was evidence that AaE had the means to weigh those items which it did send through a weighing device at a major port.
I am satisfied that Rodevan too breached its non-delegable duty of care to provide Mr Popovic with a safe system of work and is liable to Mr Popovic in negligence and for the breach of it statutory duties under the regulations. Further, Rodevan reasonably ought to have known of the hazard presented by the unmarked heavy items which Mr Popovic and his co-workers would unload from cans and, acting reasonably, it ought to have brought the hazard to the attention of AaE for it to be addressed by a change in the system of work.
Apportionment
As far as responsibility for contribution is concerned, the amounts recoverable shall be those which are just and equitable having regard to the defendants’ responsibility for the damage suffered by Mr Popovic, according to s 24(2) of the Act. I must consider the extent to which each defendant fell below the requisite standard and the causal potency of their acts or omissions in terms of Mr Popovic’s injury.
There is no evidence that Rodevan knew of the actual instances, to which Mr Popovic and Mr Canavan referred, of unmarked heavy items reaching the cans. Further, the SOP of which Mr Croughan was aware did set out a process for identifying and marking such items, imposing a general responsibility for doing so on all AaE employees. In addition, the AaE induction materials referred to the risk of injury associated with lifting items when their weight was unexpectedly heavy or light. They suggested that the weight of an item be tested by pushing it, or as an alternative, that the item be checked for a caution label.
Mr Croughan did frequently visit the AaE freight handling sites. He observed AaE’s induction process and he made himself accessible to Rodevan staff who might want to raise work related issues. There is no evidence that, during his site visits or at other times when they spoke, Mr Croughan asked AaE or Rodevan employees whether unmarked heavy items were reaching the cans for unloading or that the issue had ever been raised with him by them. There was no evidence of any report to Mr Croughan or Rodevan of any injury resulting from heavy item lifting. Although Mr Croughan knew that freight handlers might sometimes lift a heavy item unassisted, there was no evidence as to whether those items bore a caution sticker.
Mr Canavan, on the other hand, was or reasonably ought to have been aware that not all heavy items to be unloaded would be labelled, despite the requirements of the SOP. He knew that if an item came from a major port (as did the majority of items unloaded from cans) then the system provided for it to be weighed unless it arrived pre-packed in a stillage bin and may have bypassed the weighing process. AaE’s induction materials also show that it was conscious of and had identified the hazard to a freight handler constituted by the lifting of items weighing 25kgs or more, without assistance. The SOP was designed to avoid, as far as was possible, in Mr Canavan’s view, the risk associated with the manual handling of heavy items of freight.
In Papadopoulos v MC Labour Hire Services Pty Ltd and Anor (No 4)[6] Beach J referred to a series of questions identified by Harrison J in Hoad v Peel Valley Exporters Pty Ltd[7] relevant to the apportionment of contribution. They address such relevant matters as:
[6][2009] VSC 193, [77].
[7][2008] NSWSC 981, [152].
· the respective degrees of access to the premises where an employee is working;
· the control of the premises;
· the period during which the employee was working at the premises;
· the responsibility for the employee’s training;
· who supplied any plant and equipment to the employee required for use in carrying out the work;
· the parties’ respective roles in devising, instating and maintaining a system of work that was bound to be unsafe;
· whether the employee was injured in the course of their normal duties or when performing different ones;
· the parties’ respective states of knowledge of a hazard;
· the employer’s capacity to act independently to avert the hazard and ‘shield the employee’ from it;
· the period of time during which the hazard had been in existence;
· whether the hazard had caused any prior injury to the employee or anyone else;
· whether the hazardous conditions were constant or varied day by day; and
· whether there was any dissimilarity in the employee’s ability to draw the hazard to the attention of one party or another.
AaE controlled its East Street site where Mr Popovic sustained his injury. It devised, instituted and maintained the system of work under which he was working on 26 May 2004. It supplied the plant and equipment. Each of the defendants were involved in Mr Popovic’s induction and training. AaE was or reasonably ought to have been aware that a constant hazard existed because Mr Canavan knew that the weight of every item going into a can might not be checked.
Rodevan had some access to the AaE site, but there is no evidence of it having any control over other parts of the system of work relating to the acceptance of freight and its handling thereafter. Although Mr Croughan did not ask about unmarked heavy items in cans and I conclude that he or someone else from Rodevan ought reasonably have done so, I bear in mind that AaE’s induction and training process and materials appeared to address the issue of the identification and manual handling of heavy goods and there is no evidence of any report to Mr Croughan or Rodevan of any back or other injury from heavy lifting at the AaE site. Further, Mr Popovic had very frequent opportunities to report any unmarked heavy items to Mr Croughan during their telephone conversations and he did not do so. As senior counsel for Rodevan submits, it took an active interest in matters of safety at the AaE site.
In all the circumstances, in my view, AaE is principally responsible for Mr Popovic’s damage but Rodevan should not be exempted from liability to contribute under
s 24(4) of the Act. Taking into account the extent to which I consider each defendant has departed from the requisite standard of conduct as well as the causal potency of its breach, I consider that it is just and equitable that AaE should contribute 85 per cent in respect of Mr Popovic’s damage and Rodevan 15 per cent.
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