Sang, George v E Brockman and Sons Pty Ltd and Shell Refinery (Aust) Pty Ltd and VWA v Shell Refinery (Aust) Pty Ltd
[2009] VCC 1486
•21 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES – COMPENSATION
GENERAL DIVISION
Case No. CI-07-02594
| GEORGE SANG | Plaintiff |
| v | |
| E BROCKMAN & SONS PTY LTD | Defendant |
| and | |
| SHELL REFINING (AUSTRALIA)PTY LTD | Third Party |
| AND |
Case No. CI-08-00384
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| SHELL REFINING (AUSTRALIA) PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19 August 2009 |
| DATE OF JUDGMENT: | 21 August 2009 |
CASE MAY BE CITED AS: | Sang, George v E Brockman & Sons Pty Ltd & Shell Refinery (Aust) Pty Ltd and VWA v Shell Refinery (Aust) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1486 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – third party proceedings – s.138 Accident Compensation Act recovery action – nature and extent of liability of owner and occupier of petroleum refinery in respect of injury to worker employed by contract company – occupiers’ liability – application of the Occupational Health and Safety Act 1985 and regulations – nature and extent of duty of care.
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| APPEARANCES: | Counsel | Solicitors |
| For the Defendant | Mr J H Tebbutt with | Wisewould Mahony |
| Ms A M Magee | ||
| For the Third Party | Mr I D McDonald | Ebsworth & Ebsworth |
| For the Plaintiff | Mr J C Simpson | Russell Kennedy |
| (recovery action) | ||
| For the Defendant | Mr I D McDonald | Ebsworth & Ebsworth |
| (recovery action) HIS HONOUR: |
Preliminary
1 On 27 July 2001, Mr George Sang (“the worker”) claimed to have suffered significant injury to his lumbar spine and right shoulder when he stumbled while carrying a 12-metre long steel pipe over sloping and rough ground in the vicinity of tank 7 (“the tank”) at the Shell Corio Refinery, near Geelong (“the refinery”).
2 At the time, the worker was employed by E Brockman & Son Pty Ltd (“Brockman”), a company specialising in the fabrication and maintenance of large container tanks. Brockman had contracted with Shell Refining (Australia) Pty Ltd (“Shell”) to provide specialised labour and services at the refinery. Shell was the owner and occupier of the refinery.
3 The worker brought proceedings initially against Brockman and Shell at common law, seeking damages for the injuries suffered in the incident (“the principal proceeding”). The worker later discontinued against Shell. Brockman joined Shell as a third party (“the contribution proceeding”). The principal proceeding was due to be heard before a jury commencing on 3 August 2009, but was resolved, I am told, on the basis of payment to the worker of the sum of $225,000 plus retention of payments made pursuant to the provisions of the Accident Compensation Act (1985) (“the Act”), in the order of $60,000 plus legal costs. The contribution proceeding remained unresolved.
4 By proceeding number CI-08-00384, the Victorian WorkCover Authority (“VWA”) brought a proceeding against Shell pursuant to s.138 of the Act seeking an indemnity against Shell on the basis that Shell had a liability to pay damages for the worker’s injury (“the recovery proceeding”). S.138(1) of the Act provides:
1 JUDGMENT
“(1)
Where an injury or a death for which compensation has been paid, or is or may be payable, by the Authority … was caused under circumstances creating a liability in a third party to pay damages … in respect of the injury or death, the Authority … is entitled to be indemnified by the third party in accordance with this section.”
5 In the recovery proceeding, the VWA alleges it is entitled to recover from Shell, the lesser of the compensation paid by the VWA for various benefits paid pursuant to the Act, which is the sum of $142,768.60 (“the compensation amount”)[1] and the amount calculated in accordance with the formula prescribed by s.138(3)(b). In that formula, factor B is irrelevant. There is no amount paid by Shell and therefore factor C is irrelevant. Therefore, the two issues which I am required to determine in the recovery proceeding are:
[1] Exhibit D in recovery proceeding
[2] S138(3)(b) of the Act
(a) The amount of damages for pecuniary loss and non-pecuniary loss to which the worker is entitled at common law; and (b) The extent to which (expressed as a percentage) the act, default or negligence of Shell caused or contributed to the worker’s injury[2]. 6 The issue which I am required to determine in the contribution proceeding is the extent to which, if at all, it is just and equitable for Shell to contribute to the damages paid by Brockman to the worker in the principal proceeding.[3]
[3] See s.24 Wrongs Act 1958
7 There is little, if any, difference between the proportionate liability issues to be determined on the one hand in the contribution proceeding, and on the other hand in the recovery proceeding. In respect of that liability, the issue is essentially the same, that is the proportionate liability of Brockman, Shell, and, if applicable, the worker himself, for the incident. The issue of damages is relevant only to the recovery proceeding.
The Proceedings
8 By its Notice of Contribution filed 7 February 2008, Brockman alleged against Shell to be entitled to indemnity or contribution in respect of any sum paid to the worker found by the Court to be just and equitable having regard to Brockman’s responsibility for such damages as a result of the negligence of Shell as particularised in the worker’s Statement of Claim.
9 By his Amended Statement of Claim, the worker alleged against Shell (which was then the second defendant to the principal proceeding) as follows:
•
That Shell was the occupier of, and responsible for the care, control and management, of the refinery.
•
That the worker was subject to the supervision, direction and control of Shell.
•
Shell owed the worker a duty to take reasonable care to avoid exposing him to the unnecessary risk of injury.
•
Shell owed the worker an occupier’s duty pursuant to s.14B of the Wrongs Act 1958.
•
The incident and injury was caused as a result of the negligence of Shell, its servants or agents and in particular:
ƒ failing to provide a safe system and place of work; ƒ failing to provide adequate plant and equipment; ƒ failing to provide adequate training; ƒ failing to provide sufficient manual or mechanical assistance; ƒ requiring the worker to perform a manual handling task which was
excessively heavy, awkward and dangerous;ƒ requiring the worker to walk backwards on rough, loose and uneven 3 JUDGMENT
ground whilst carrying a heavy and awkward pipe;
ƒ requiring the worker to carry heavy and/or awkward objects over
ground which was rough, uneven and/or covered with debris;
ƒ failing to maintain the worksite around the tank in a safe manner; ƒ
failing to comply with the provisions of the Occupational Health and Safety Act 1985 (“the OH&S Act”) and/or the Regulations and Codes of Practice made thereunder;
[4] In submission, Mr Tebbutt, on behalf of Brockman, specifically abandoned a breach of the OH&S Act and Regulations as constituting an independent cause of action (see s.28(a) of OH&S Act), however, he maintained a breach of the Regulations as a particular or measure of negligence (see s.28(c) of the OH&S Act)
• Alternatively, the incident and injury were caused by the breach by Shell of the occupier’s liability duty, particulars of which were as pleaded in respect of breach of duty. • Alternatively, the incident and injury were caused by the failure of Shell to comply with the provisions of the OH&S Act and/or the Regulations and Codes of Practice made thereunder.[4] 10 By its Defence filed 22 October 2007 to the worker’s Statement of Claim, Shell:
• Admitted it was the occupier of the refinery. •
Admitted that it owned and operated its business from the refinery but did not admit the refinery was under its care, control and management.
•
Did not admit the worker was under its supervision, direction and control, nor that it owed the worker a duty of care.
•
Admitted it owed a duty as occupier of the premises pursuant to s.14B of the Wrongs Act 1958.
•
Denied negligence, breach of occupier’s duty and breach of the OH&S Act and the Regulations and Codes of Practice made thereunder.
11 By its Notice of Contribution filed 24 January 2008, Shell (then second defendant in the principal proceeding) alleged against Brockman that it was entitled to contribution in respect of any sum which the worker may recover against Shell which was found to be just and equitable by the Court to the extent of Brockman’s responsibility on the grounds of Brockman’s negligence. Particulars of such negligence were as alleged by the worker against Brockman in his Statement of Claim.
12 The allegations made by the worker against Brockman in his Statement of Claim were essentially the same as those made by the worker against Shell.
13 By its Statement of Claim in the recovery proceeding, the VWA alleged:
•
Shell was the owner, occupier and responsible for the care, conduct and management of the refinery.
• The worker was subject to the supervision, direction and control by Shell. •
Shell owed the worker a duty to take reasonable care in relation to the management, condition, maintenance and safety at the refinery.
•
The incident and injury arose as a result of the negligence of Shell, its servants or agents, particulars of which included:
ƒ failing to provide a safe workplace; ƒ failing to provide adequate training and instructions; ƒ failing to provide the worker with sufficient manual and mechanical
assistance;ƒ failing to undertake an adequate risk assessment; 5 JUDGMENT
ƒ requiring the worker to walk backwards on rough, loose and uneven
ground whilst carrying a heavy and awkward pipe;ƒ failing to comply with the requirements of s.23 of the OH&S Act and
the Regulations and Codes of Practice made thereunder;ƒ failing to maintain the area around the tank in a safe condition; ƒ exposing the worker to a sudden and dramatic change in the
surface from the narrow bitumen pathway around the tank to rough,
loose and uneven ground;
ƒ
causing or permitting the worker to engage in manual handling of the pipe around the perimeter of the tank, notwithstanding the surface change;
ƒ
failing to adequately or at all warn the worker of the risk of injury from the surface change during Shell’s site safety induction of the worker, or otherwise.
• Alternatively, the incident and injury to the worker was caused by the breach by Shell of its duty pursuant to Part II of the Wrongs Act 1958, particulars of which were as pleaded in respect of the breach of duty. 14 By its Defence filed 24 April 2008 to the Statement of Claim in the recovery proceeding, Shell:
• Admitted it was the owner and occupier of the refinery and that it was responsible for the care, conduct and management of its employees and business at the refinery, but not otherwise; • Did not admit that the worker was subject to its supervision, direction and control while at the refinery; 6 JUDGMENT
• Denied it owed the worker a duty of care; • Denied a breach of duty of care; •
Admitted it was the occupier of the premises within the meaning of Part IIA of the Wrongs Act 1958, but denied breach of that duty;
•
Alternatively, if it was negligent, or in breach of statutory duty, then there was negligence or breach of statutory duty by the worker by:
ƒ stepping backwards on uneven ground whilst carrying a heavy pipe
without first checking where he would be stepping;ƒ failing to keep a proper lookout; ƒ failing to take adequate care for his safety.
•
If there was negligence or breach of statutory duty by Shell, there was also negligence or breach of statutory duty by Brockman, particulars of which were:
ƒ failing to provide a safe system and place of work; ƒ failing to provide adequate plant and equipment and assistance; ƒ failing to provide adequate training and instructions; ƒ failing to provide adequate supervision; ƒ failing to provide sufficient manual and/or mechanical assistance; ƒ failing to undertake any adequate risk assessment; ƒ requiring or permitting the worker to perform a manual handling task
which was excessively heavy, awkward and dangerous;ƒ failing to comply with the provisions of the OH&S Act and/or the
Regulations and Codes of Practice made thereunder.7 JUDGMENT
The Evidence of the Worker
15 On 4 August 2009, I had the benefit of a view at the refinery and in particular the area around the tank. While the view was not of itself evidence, it assisted in understanding the evidence which was subsequently given. In the course of the view, which was also attended by the worker, he pointed to the area he was working in at the time and in particular to the area where he alleged he slipped while carrying the pipe.
16 The worker gave evidence that he had spent all his working life as a welder and boilermaker. He had worked for various companies throughout Australia and overseas and had, for a period, conducted his own business as a welder and boilermaker. He had first worked at the refinery in 1976, but had never been employed by Shell. He had worked at the refinery on and off from that time through until his injury in 2001, and in total he had worked for five or so years at the refinery.
17 In 1999, he commenced as an employee of Brockman, which was a company specialising in the fabrication and maintenance of large container tanks.
18 He worked continuously from that time, until the incident on 27 July 2001, save for a period of approximately six weeks when he was at another site. Throughout that period Brockman had about forty to fifty personnel on site, although he and another employee were the only specialist pipe welders.
19 From 1999 his work was to carry out tank refurbishment. There were a large number of tanks at the refinery which were used to hold various types of petroleum product. The refurbishment of these tanks was undertaken exclusively by Brockman’s employees. In addition to himself, there were boilermakers, riggers, mechanical fitters and trades assistants working at the refinery, all employed by Brockman.
20 Amongst the Brockman’s employees was Jim Greenslade (“Greenslade”) who
8 JUDGMENT
was the managing supervisor of all Brockman’s employees at the refinery. He held a senior management position with Brockman and, according to the worker, was a “five per cent partner”. There was an hierarchy of workers at the tank. Amongst the leading hands was Dick Hammond (“Hammond”) who was responsible for other areas aside from the tank. The leading hand in respect of the tank was Randell Milton (“Milton”). In addition, Brockman had an occupational health and safety officer, Mr Milenko Bosnjak (“Bosnjak”). In the course of his time at the refinery, the worker underwent a range of safety induction and awareness programs, conducted by Shell.[5] Safety training was an important aspect for workers, be they Shell employees or contractors, while at the refinery. The safety induction course was a standard procedure, and involved hazard identification, fire awareness, working within confined spaces, such as tanks, and a range of other safety requirements. There was reference to manual handling in the induction handbook.[6] The initial safety induction course undertaken by the worker was in May 1999, and was repeated in May 2001. While some aspects of the induction course touched upon manual handling, there was nothing specific about walking on uneven ground while carrying a load. There was no safety induction course provided by Brockman.
[5] Exhibit C in the contribution proceeding
[6] Exhibit 2 in the contribution proceeding
21 The worker was required to wear protective clothing while at the refinery, including steel-capped safety boots, a boilersuit, a leather jacket to protect against welding sparks, a hard helmet, safety glasses and leather gloves. All of the safety clothing was provided by Brockman.
22 There were other contractors on site, including Dimac Construction (“Dimac”) which was an earthmoving company, and was responsible at the refinery for any earthworks undertaken. Various photographs of the site where the incident occurred were tendered into evidence[7] which depict the tank, and its surrounds, including the general area where the incident occurred.[8] In Photographs 1 and 2 can be seen an area covered by blue metal rock.[9] It is best seen in the middle of Photograph 2. This was said to be a temporary roadway constructed by Dimac to facilitate the transport of heavy equipment and materials to the tank to enable Brockman’s employees to carry out the refurbishment. To the right of Photograph 1 can be seen an asphalt walkway which was an extension of the floor of the tank, and a drain for excess runoff water. The worker was uncertain whether the asphalt walkway was the same in the photograph as when the incident occurred in 2001, as the photographs were taken in 2008. However, he said that the blue metal roadway was in approximately the same condition, although he thought that the roadway had sunk somewhat over the years. The area between the roadway and the drain was a sloping area (“the shoulder”) which was uneven and contained loose pieces of rock and blue metal, some of significant size. Also, the area was indented because of foot and vehicular traffic. Importantly, the shoulder sloped from the left to the right. Approximately one pace into this shoulder area was where the worker stumbled as his foot struck a large rock or piece of metal. He thought the slope at that point was 30 to 40 degrees.
[7] Exhibit B in the contribution proceeding
[8] Photograph 1
[9] JUDGMENT
23 Photograph 3 was taken from approximately where the incident occurred, looking in a south-westerly direction. With the exception of the dark coloured vertical pipe at the top right of the photograph, none of the other pipework was present at the time of the incident. The same perspective is shown in Photograph 6 with the vertical dark coloured pipe being present at the time of the incident, but the other pipework absent. There is shown in approximately the middle of the photograph a “head” coming out from the side of the tank and to which silver pipes are attached. That head was present at the time of the incident but the pipework was not attached. Photograph 9 shows the heads, both of which were present. Various of the other photographs show the ground in the area of the tank where the incident occurred.
24 The worker prepared a plan of the area around the tank, and included a diagrammatical description of the task being undertaken.[10] Marked in red pen on the plan are the positions of two power boxes which the worker said provided an impediment to moving the pipe around the tank.
[10] JUDGMENT
25 In the course of the refurbishment of the tank, it was necessary to construct and install large, curved steel pipes, approximately 12-metres in length, 50- millimetres in diameter and weighing more than 80 kilograms. The pipes were bent or rolled at Brockman’s factory to reflect the circumference of the tank. It was intended various of these pipes be installed in the tank to provide steam to the petroleum product which the tank was intended to house.
26 Work inside this and other tanks at the refinery was strictly controlled by Shell. Each morning, before work started at 7.30 am, an inspection and assessment of the air inside the tank was made by Shell’s employees to ensure it was safe. Specific permits were issued allowing certain employees and contractors to enter tanks to perform some duties. Most of the worker’s duties were related to the tank and a significant proportion of his time was spent in or around the tank. There was a workshop some kilometre or so distant, and a “toolshed” in the form of a container located nearby.
27 In the course of the induction, the worker was provided with an induction handbook by Shell[11] and stated that he read the same.
[11] Exhibit 2 in the contribution proceeding
28 The worker was asked who he would contact if he had a problem with manual handling while working at the refinery. He said a person, George Fomin (“Fomin”) was another contractor on site, although the worker did not think he was an employee of Shell, and whose duties included co-ordination of the various contractors. The worker considered he would not make a report of a manual handling problem to Fomin as he would have to “stand on a few toes” to do so. The chief safety co-ordinator on site was Peter Wright (“Wright”) but the worker was not really able to contact him. He thought there was some lifting restriction of greater than 20 kilograms.
29 All of the workmen working on the tank were employed by Brockman. There were no Shell employees. Fomin gave instructions to the Brockman employees at the tank as to what was to be done. Another person, David May (“May”) was contracted by Shell to do onsite inspections.[12]
[12] T 108
30 The worker commenced work in and around the tank about four weeks prior to the incident. When he first inspected the area around the tank, he said he was not happy with the surface of the ground and the fact that there were materials laying and stacked around the tank.[13] He said he would have expected the area to be a lot cleaner. The materials included pieces of steel plate and the power boxes. He had worked on another tank in the area and that site was much cleaner.[14] Supervision of the Brockman’s employees working on the tank was undertaken by the site supervisor, also employed by Brockman.[15]
[13] T 110-112
[14] T 112
[15] T 118
31 After the worker had concerns about the state of the site, he complained to Greenslade and Milton, who was the leading hand.[16] These gentlemen acknowledged the complaint but did nothing about it and appeared not particularly interested.[17] The worker went further and said to the occupational health and safety officer, Bosnjak:
“It looks like a dog’s breakfast down there.”[18]
[16] T 119
[17] T 119
[18] T 120
32 The worker considered it was appropriate to raise the matter with these Brockman employees. He considered the ground could be cleared of the debris, and “evened up”. His concern about the rough surface was that someone could trip over and that it would be difficult to get equipment on a trolley around the tank on the outside.[19] The worker said:
“There was an undulation in the ground where the wheel tracks had – had left an impression of a nature of - you know, up to 100-millimetres deep and I just thought that the ground could have been pretty much dead level.”[20]
[19] T 121
[20] T 122
33 Nothing was done about these complaints. There was no evidence the complaints were brought to the attention of Shell.
34 So far as the worker was aware, there was no risk assessment undertaken in respect of the task which caused injury.
35 On 27 July 2001, the worker arrived at work to be advised by the leading hand, Milton, that a number of pipes which had been placed on the outside of the tank, on the bitumen area, had to be moved inside the tank. He advised a number of employees[21] that the pipes were to be slid around the exterior circumference of the tank to a certain position and then lifted by a team of four or so Brockman employees and carried around to the entrance to the tank as depicted in the plan[22] and placed inside the tank. This was normally a task carried out by riggers or trades assistants. There was some discussion amongst these employees as to how the task was to be done, but it was undertaken under the direction and at the behest of Milton.
[21] T 95
[22] Exhibit A in the contribution proceeding
36 The worker believed there were four employees engaged in the manoeuvring task, including himself, Milton and two others. After the pipes had been slid some distance around the circumference, they could not proceed further because of the impediment of the heads. Thus at a point near the north-east side of the tank, the four employees lifted the pipes, firstly, to waist level, and then to shoulder level, and then moved around the tank to the entrance where the pipes were laid inside.
37 Two or three of the pipes were manoeuvred and laid in this manner. On the third of fourth occasion, the worker was stationed in the middle and to the eastern end of the pipe with the other three employees, and lifted the pipe to waist height. It was then necessary for the group to walk backwards and away from the tank to enable them to manoeuvre the pipe without the ends striking the tank. In order to achieve this, the group walked backwards three or four paces away from the tank to clear it. They moved from the bitumen area, across the drainage ditch, and the worker stated that he had taken about one three-quarter pace up the shoulder when his right heel came into contact with a large piece of blue metal. The worker gave the following evidence:
“The pipe was still at waist height when I apparently placed my rear right heel upon a round object which was a piece of this bluestone rock. My right knee started to falter under me causing me to stumble, but the other employees at that stage had taken another step, and as I was in the process of falling backwards, or stumbling backwards, I still had a hold of the pipe in my left hand and I twisted my body around to the right and extended my arm – right arm violently thinking I was going to make contact with the ground, but I did not. I then managed to gain my footing again and hang onto the pipe. … I experienced a sharp pain in the lower region of my back, whether it was only a click and a pinch – pinching pain in my right shoulder.”[23]
[23] T 81
38 The worker was able to continue to manoeuvre the pipe inside the tank without dropping it. The incident occurred at approximately 11.45 am.
39 The worker stated it would have been difficult to get mechanical assistance in the area because of the power boxes.
40 No one from Shell was involved in the planning, supervision or consultation concerning the moving of the pipe.
41 The worker kept working on the day of the incident, which was a Friday, and then had the weekend off. Monday was a rostered day off. On Tuesday, at the suggestion of a Brockman employee, he consulted the nurse onsite at the refinery, and an Incident Report was completed.[24] The report contained a section:
“Outcomes – to be completed by investigation co-ordinator.”
[24] Exhibit E in the contribution proceeding
42 It is there stated:
“Supervisor should of (sic) planned ahead and made a crane available to lift in the work. If this is not possible the spool could have been made in a number of sections.”
43 The worker did not recall providing this statement to the first aid nurse.
44 The Brockman’s employees at the tank would have “toolbox” meetings most mornings to discuss a range of issues relating to the site. These issues included safety matters. He did not recall the uneven ground and debris being raised at a toolbox meeting.
45 The ground in the area of the shoulder was in a similar state in 2001 when the incident occurred, as compared to the present time and as shown in the various photographs.
46 He gave evidence as to injury and damages for the purpose of the formula prescribed by s.138(3)(b) of the Act. He had a number of health issues prior to the incident. He has had a longstanding heart condition and in 1983 suffered a minor infarction. He has been on medication for the heart condition over the years. He also suffered hypertension and had required medication since before the incident.
47 In 1994, he injured his back whilst assisting to lift a trailer, and as a result underwent a laminectomy. He was off work because of this back surgery, but returned to work after three or four months. At that time he was working in his own business.
48 Over the years 1996 to 1998, he was in receipt of a part Commonwealth disability pension as a result of his heart condition, and low-back problem. While he was able to work, he was not able to work in the same manner as he had previously enjoyed. He continued to operate his own business until he commenced work with Brockman in approximately 1999.
49 Prior to the incident, he enjoyed a range of recreational activities, including playing guitar at his local church each week, playing golf once a month or so and bushwalking. He was a keen fisherman, had his own boat and would go fishing each week. Notwithstanding his earlier back injury, the worker was able to work at Brockman, which was generally heavy work, and was able to lift 20 or 30 kilograms without discomfort.
50 At home, he assisted his wife with a range of domestic chores, collected and split firewood, and undertook work in a large garden.
51 Immediately after the incident, he felt a sharp pain in his lower back. There was a pinching sensation in his shoulder but that was not a major problem initially. Over the weekend the pain in his back went down his right leg.
52 He was treated by his general practitioner, Dr Unkenstein, initially including physiotherapy.
53 He remained at work in order to finish the job, but the pain in his back and right leg became more severe. He had what he described as a “palsy” in his
16 JUDGMENT
right foot. He was on a range of lighter duties at Brockman but was unable to continue in September 2001 and ceased work. He had surgery to his lower back performed by Mr Carey in March 2002 in the nature of a laminectomy. This was successful in that it removed his sciatic pain but did not improve the palsy in his right foot and instability problems with his right ankle.
54 Because of the pain and problems in his lower back, the right shoulder did initially not present as a significant issue. He started to feel more symptoms when he commenced to lift weights at work. He returned to work with Brockman under a return to work program between August 2002 and August 2003. On that later date he was advised there was no work available to him, despite his belief that he had the capacity to undertake certain work, and left employment.
55 In March 2002, Mr Carey performed an intervertebral discectomy which led to improvement, at least in relation to his leg pain. In 2008, he had a rotator cuff repair to the right shoulder. That led to significant improvement. In 2004, he began to experience pain in his left shoulder which he was advised was because of the added strain taken on the left side as he was not using his right shoulder. He had cortisone injections into the left shoulder.
56 As a result of his injuries to his back and right shoulder, he has had to give up playing guitar. Driving for more than 45 minutes gives him increased pain in both arms and shoulders. He has pain and stiffness in his back. He has not resumed golf, and has not fished in two years as the motion of the boat aggravates his back pain.
57 He feels very limited in what he can do and his quality of life has suffered. He has been treated by Dr Unkenstein for depression. His injuries have had an effect upon the personal relationship with his wife. He claims to have become impotent.
17 JUDGMENT
58 It is difficult for him to use his right arm above head height and he can do so only by supporting it with the other arm.
59 He has, over the years, obtained assistance from his wife in matters such as washing, tying buttons and ties, and she now does various chores, including hanging out the washing, gardening and mowing the lawn that he previously undertook. He estimated that about two hours per week of his wife’s time was spent in that regard.
60 He has not worked since August 2003. He believes he now does not have the capacity to work in his area of welding and boilermaking. He has made enquiries of employers, but has been told that with his medical history employment would be very difficult. He doubts he would be able to obtain any employment over the next four years. He had intended to work to sixty-five.
61 He had heart bypass surgery in 2006. That was successful and he has no problems with his heart now save for some occasional angina. He is still on medication.
62 He estimates he would have spent approximately $2,000 or so purchasing wood which he would not otherwise have had to do. He finds it difficult to play with his grandchildren.
63 At the present time, he is on medication for his blood pressure and cardiac problems. He also takes Celebrex, an anti-inflammatory, for his shoulders and back. He takes one to two OxyContin tablets per day for pain. He further takes Gabapentin for nerve pain in his back. He takes two of these tablets approximately three times a day, depending upon need. The medication causes some drowsiness.
64 He undertakes an exercise program and hydrotherapy. He is currently seeing a physiotherapist.
18 JUDGMENT
65 Over twelve months in 2002 and 2003 when he was under a return to work program, he was undertaking full-time modified duties. Because of site allowances and the like, he lost approximately $200 to $300 per week net in this employment.
Medical and Pecuniary Loss Evidence
66 Evidence was given by Mr Hugh Sarjeant, actuary, and his report of 8 February 2008[25] was tendered.
[25] Exhibit B in the recovery proceeding
67 Mr Sarjeant’s evidence concerned his calculations as to the loss of earnings and earning capacity, and loss of superannuation benefits alleged to have been suffered by the worker as a result of his injury. In his report, under the summary on the first page, Mr Sarjeant set forth various figures as to economic loss. In his evidence, he provided an update of those figures as follows:
Loss of earnings to 7 August 2009 - $472,454.00 Less earnings actually received - $52,297.00
__________
Nett loss - $420,157.00 __________ Future economic loss (based on a multiplier of 3 per cent) - $223,496.00 __________ Total loss of earnings and earning capacity - $643,653.00 ========= Loss of past superannuation contributions - $72,723.00 Loss of future superannuation benefits - $31,145.00 Less superannuation contributions actually paid - $2,654.00 68 The net loss was said to be $742,221.00.
69 These figures made no allowance for the vicissitudes of life.
70 In cross-examination, Mr Sarjeant conceded that his calculations as to economic loss were based upon the worker’s taxation figures for the year ended June 2001.[26] In fact in the two previous years, the worker had earned considerably less, $41,231.00 for the year ended June 2000, and something in the order of $5,000.00 for the year ended June 1999. Further, the increases in earnings for each year[27] presumed an increase in accordance with the cost of living of four per cent.
[26] Paragraph 2.2 of the report
[27] see paragraph 2.3 of the report
71 Evidence was given by Dr Alan Appelbe, cardiologist. His report of 27 January 2009 was tendered.[28]
[28] Exhibit C in the recovery proceeding
72 He has been the worker’s treating cardiologist for eighteen years. He commenced treating the worker in 1993, noting that he had a heart attack in 1983, and in 2006, had a quadruple bypass operation undertaken by a surgeon, Mr Bo Zang.
73 Dr Appelbe said that despite the worker’s heart disease over the years, his prognosis was good. He said there was a patent blood supply to the area through the grafts, and that was likely to continue over the next ten years. Some of the worker’s previous risk factors, including smoking and cholesterol were under control. He considered that the worker’s heart muscle was in good condition and absent his back injury, he would have been able to continue work. He acknowledged the worker had angina from time to time, and while he was uncertain of the source, this did not constitute an adverse indicator for the future. The ongoing risk of heart disease worsening was one to two per cent per year, not much higher than for the general population.
74 Dr Unkenstein, general practitioner, gave evidence, and his three reports of 2003, 2006 and 2009 were tendered.[29]
[29] Exhibit E in the recovery proceeding
75 He had treated the worker since 1996. When he first saw the worker after the incident, on 29 July 2001, he stated that a complaint of right shoulder problems was not part of the worker’s presentation. At the time the complaints were of low-back pain. The problem with the right shoulder came on a month or so after the first consultation. According to the history provided by the worker, he attributed the right shoulder pain to throwing his arm out in the course of the incident, and Dr Unkenstein considered that in that movement, the shoulder could have been externally rotated and abducted. He thought it was a plausible cause for the subsequently determined tear in the supraspinatus tendon. An ultrasound of the shoulder taken in 2003 showed a full thickness tear to the tendon with some degenerative changes. Subsequently in 2006, there was a tear measuring 9-millimetres in the right shoulder, and examination of the left shoulder at that time showed a further 7- millimetre tear. Surgery was performed to the right shoulder in 2008 and the worker recovered uneventfully.
76 In terms of the relationship between the left shoulder, and the incident, Dr Unkenstein stated that it is not uncommon for people to suffer overuse injuries in a good shoulder, after injury to the other shoulder.
77 At the present time, the worker takes a range of medication for heart and blood pressure problems, which pre-existed the accident. These include Asterix, a form of aspirin for blood-thinning, Atenolol, for blood pressure, and Ramipril, again for blood pressure. The worker takes Vytorin to control his cholesterol, and Actonel to stimulate bone generation, related to his lower back injury. He further takes Celebrex, an anti-inflammatory for the back and shoulder, Neurontin for chronic pain and OxyContin, a slow-release opioid as a painkiller.
78 Dr Unkenstein described the worker as, at the current time, being in “pretty good shape”. He said that his back pain was controlled generally by the medication, and there was a twenty per cent reduction in global movement of the spine. After surgery in 2008 to the right shoulder, the worker had a twenty per cent reduction in range of movement of that shoulder.
79 He considered there was no prospect of the worker returning to work in his previous job as a boilermaker and welder. He considered there would be a slow decline in the condition of his back and right shoulder.
80 In cross-examination, when questioned about his first attendance upon the worker after the incident, Dr Unkenstein obtained a history on 29 July 2001 of an exacerbation of the pre-existing disc prolapse. He prescribed medication. There was no reference on the entry in the clinical notes of that day to any problem with the right shoulder. In fact the first reference to any right shoulder problems was not until June 2003, some two years later. On that date, the entry in the clinical notes described twelve months of right shoulder pain, suggestive of tendonitis. There was no reference on that clinical note to the pain being related to the incident of 2001. Generally speaking, Dr Unkenstein said that he would make a note, particularly where there was a WorkCover matter, of the relationship between pain and a specific injury, but had not done so on this occasion. He was not able to satisfactorily answer why that was the case. He stated that although his first clinical note was not until 2003, he recalled having obtained a history from the worker of the association between the right shoulder pain and the incident on previous occasions. There was nothing in his notes to that effect.
81 He agreed that the pathology in respect of the right and left shoulder was consistent with the development over a period of time, of age-related wear and tear. He confirmed that any association between the left shoulder, and the overuse caused by the right shoulder injury was speculative.
22 JUDGMENT
82 He accepted that amongst the various WorkCover certificates which he had provided to the worker over the years, there was little if any reference to the right shoulder, save for May 2006. The mechanics of the right shoulder injury as had been conveyed to him was that the worker’s right arm had hit the ground. He conceded that an injury to the tendon may or may not have occurred when the worker’s evidence of the incident was read to him.
83 He accepted that in the last eighteen months, he had seen the worker for consultations related to the injuries in the incident on ten occasions, and a further seven occasions for the prescription of medication. The cost of the consultations was $45 to $50 each.
84 In his report of 4 September 2003,[30] he noted that with the stabilisation of the back problem, his attention had been turned to the worker’s chronic right shoulder problem and that the ache in the shoulder was becoming more evident with the reduction in anti-inflammatory and analgesic medication.
[30] page 2, paragraph 3
85 Evidence was given by Mr Rodney Brink, orthopaedic surgeon, and his letters and reports of 16 September 2003, 10 February 2004, 10 March 2005, 5 July 2005 and 8 January 2009 were tendered into evidence.[31] Mr Brink first saw the worker upon the referral of Mr Carey on 16 September 2003. He obtained a history that the worker had been carrying the heavy pipe when he fell to the ground, wrenching his shoulder, producing immediate pain. According to the history, the worker’s right arm had struck the ground. Mr Brink received a further history that the pain which had commenced in the right shoulder on the date of the incident had continued through until 2003 when he first saw the worker. An ultrasound of the right shoulder was undertaken which showed a tear of the rotator cuff.
[31] Exhibit F in the recovery proceeding
86 The evidence of the worker in relation to the manner in which the incident occurred was read to Mr Brink.[32] Mr Brink stated that if the worker did not strike his right arm to the ground, it was still likely that there was a very sudden movement capable of placing tension upon the rotator cuff and leading either to the initiation of a tear, or the aggravation of a pre-existing asymptomatic tear. He further stated that even though the worker did not make immediate complaints of a right shoulder problem, the problem may well have been overshadowed by his back pain and it was plausible the worker’s attention was focussed on the back.
[32] as per T 81
87 He described the surgery undertaken,[33] which he said was reasonably successful. In relation to the left shoulder, Mr Brink thought it was possible there was some trauma to the left shoulder at the time of the incident and that this aggravated an underlying degenerative condition, although pain did not develop until a later time. In terms of surgery to the left shoulder, he had advised the worker not to undertake the surgery unless the pain in the area became unbearable or if there was radiological evidence that the tear to the left shoulder was increasing.
[33] noting the surgical and hospital care costs at $11,566.75
88 In cross-examination, Mr Brink accepted that the condition in the worker’s left and right shoulders was not uncommon in a man of his age, and with his work history. While it was usual that a tear to the tendon in the rotator cuff would cause immediate pain, that was not always the case. There was a natural history in such shoulder conditions for ongoing progression although he considered that the condition in the right shoulder was stable and likely to remain so. Mr Brink noted that he was reliant upon the accuracy of the history of the worker stating that the pain had come on in the right shoulder as at the time of the incident. He considered that the worker would be unable to do any work which would involve heavy lifting or overhead work or strenuously pulling or repeatedly using the right shoulder. Further, the worker was unable to participate in fishing, but was able to play his guitar.
89 Evidence was given Mr Paul Fargher, physiotherapist of Geelong. The worker first attended him on 22 May 2002 for physiotherapy treatment for low-back pain. On 19 June 2002, there was reference in Mr Fargher’s clinical notes to a flare-up of shoulder pain as a result of exercises for the back. From that time on there were occasional treatments by Mr Fargher for shoulder problems, including strengthening exercises. The bulk of the treatment over the years appears to have been in respect of the back. A medical report dated 25 May 2003 was tendered into evidence.[34]
[34] Exhibit G in the recovery proceeding
90 Mr Fargher conceded that the first reference to any history of the shoulder pain being linked to the incident was not until September 2003. A more prominent feature of the worker’s complaints of shoulder pain occurred after June 2003. He said that the tears to the left and right shoulder could have been a consequence of the degeneration in the rotator cuff group, or may have been as a result of trauma. He stated that it was possible the left shoulder pain could have developed as a result of favouring the left shoulder because of the restricted ability to use the right shoulder, particularly above shoulder level. Mr Fargher had seen the worker on approximately twelve occasions in 2009.
91 A number of further medical reports were tendered into evidence. In his report of 11 April 2003,[35] Mr Carey, orthopaedic surgeon, first saw the worker on 15 January 2002. He gave a history of the onset of back pain at the time of the incident, but there was no reference to any shoulder pain. He considered the worker had suffered an L4-5 disc herniation which produced right sciatica. He undertook a laminectomy on 7 March 2002. The worker recovered well following the surgery. Mr Carey considered that the worker was not fit to resume any heavy or physical work that he was previously doing, but was able to undertake the modified duties he was then doing with Brockman. His further report of 17 August 2005 did not significantly change the situation.
[35] Exhibit H in the recovery proceeding
92 In his report of 7 July 2005, Mr Huffam, orthopaedic surgeon, assessed the worker on behalf of his solicitors.[36] He obtained a history according, generally, to the evidence given by the worker. Mr Huffam noted that the worker had had a good result from the laminectomy performed in 1994 at the L5-S1 level. He noted the surgery by Mr Carey in 2002 to perform a laminectomy at the L4-5 level. He considered that the right shoulder injury was related to employment, but this was based upon a history of ongoing continual pain in the right shoulder following the incident. Mr Huffam considered that the worker would only be fit to perform work which would not require him to work in a bended position, or with his right arm elevated. He would be unable to perform his former work as a boilermaker/welder. That left the worker able to perform only very limited employment in the general labour market.
[36] Exhibit J in the recovery proceeding
93 The worker was examined by Mr Kevin King, orthopaedic specialist, in November 2006.[37] Mr King obtained a history that the worker suffered a jolting strain not only to his back but to his right shoulder in the incident. At the time he suffered severe low-back pain and pain in his right shoulder which was a lesser problem. The worker told Mr King that after Mr Carey’s back surgery there was a 50 to 60 per cent improvement but since that time, he had continued to suffer ongoing low-back pain, fluctuating in intensity, of mild to moderate severity. There was, in addition, ongoing pain in the right shoulder. From a practical point of view, he considered the worker incapable of returning to any form of employment. He considered the shoulder injury as related to the incident, but upon the basis of the history of pain from that time.
[37] Exhibit K in the recovery proceeding
94 In his report of 14 May 2009, obtained at the request of the worker’s solicitors, Dr Castle, occupational physician,[38] obtained a history of the incident and noted that the worker underwent physiotherapy for the right shoulder in May 2002. Dr Castle considered that the worker had made a good recovery from the laminectomy of 1994 given that he had returned to active heavy employment. He noted a range of restrictions in relation to the right shoulder injury. He considered a significant restriction in employment given both the back and the right shoulder problems and the worker’s history of manual work over the years. He thought that there was no realistic prospect that he would return to any suitable employment. The prognosis for both the right shoulder and the back were guarded but that he would not expect any improvement in either.
[38] Exhibit L in the recovery proceeding
Evidence Called by Shell
95 Evidence was then called on behalf of Shell. Bosnjak was and is a fitter and turner employed by Brockman. He commenced at that company in 1997 or 1998 and worked at the Shell refinery from 1999 or 2000. He was amongst groups of Brockman’s employees, sometimes as many as forty or forty-five who worked at the refinery. Those workers included boilermakers, welders, fitters and turners, riggers and trades assistants.
96 Also, he was the occupational health and safety representative for Brockman from 1995 until 2003. He was one of two occupational health and safety representatives at the refinery on the day of the incident. His role was to liaise between the workers and management in relation to safety issues. He would first consult the leading hand on a site, and then, if necessary, take a safety matter to Brockman’s management. If an urgent safety issue arose, he would arrange for work to be stopped immediately.
97 Shell employed a supervisor, Fomin, who would also assist in relation to safety issues. Shell’s philosophy was to deal with safety issues promptly. There was a culture of reporting and dealing with safety issues at Shell.
98 When Brockman employees were working on a tank, Shell would arrange for Dimac to clear a site and a road to enable equipment of various types to be moved to the site. He said the area around the tanks would always be cleaned up as it was necessary to have the area clear before work could commence.
99 Material around the site would include off-cuts of metal which were used by Brockman in repair work to the tanks. These would be placed in designated areas and the site kept clear. If there was a problem with the surface area of a site, Bosnjak would go to Brockman’s management. In 2001, he worked at the tank but did not believe he was at the tank on the day of the incident. To his recollection, in 2001 the surface around the tank was always kept clean and there were no issues in that regard. He said the main hazards were working with a combination of open flame and fumes, and great care needed to be taken. When shown photographs,[39] he said the temporary road depicted in Photograph 1 had changed considerably over the years since 2001. There was not the black rock (or blue metal) exposed as shown in Photograph 1, back in July 2001. Star pegs and flags were used to delineate the edge between the road and the shoulder. The shoulder of the road as depicted in Photograph 1 was different. Rain had washed away much of the dirt used to bind the shoulder, and he stated that in 2001 the area was reasonably smooth, and without the black rocks protruding. When shown Photograph 3, he said:[40]
[39] Exhibit B in the contribution proceeding
[40] T 382
“Q: What do you say as to what’s depicted on that photograph as to
the state of that part of the site as at July 2001?---A: Well, we wouldn’t be working on something like this. Q: You simply wouldn’t work on it?--- A: No, that would be cleaned up. Q: Well, did the site look like that as at – or that part of the site look
like that as at July 2001 as best you can recall?---A: The best I can recall from experience there’s no way known that
we would accept something like that.”
100 He could not recall the placement of pipes on the outside of the tank as depicted in Exhibit A[41], the worker’s diagram. He was not involved in the lifting and movement of the pipes around that time. Had he been consulted about the manoeuvre which was proposed, he would have suggested that the pipe simply be lifted with the left hand and moved round the bitumen apron of the tank rather than moving it outwards from the tank. Alternatively, a trolley or a lifting device could have been used. He considered the bitumen apron shown in the photographs was more newly laid but the old apron would not have been very much different.[42]
[41] In the Contribution proceedings
[42] T 385-386
101 Shell employees, including Fomin, would have been in the area of the tank twice a day or so. They were involved in looking around the tank to ensure that the job was progressing satisfactorily, and to keep alert for any safety issues. Shell employees audited the site for safety once a month or so.
102 In 2001, he did not recall any complaints by Brockman’s employees as to safety issues. If that had occurred, he would have dealt with them.
103 In cross-examination, he thought that the work he undertook at the tank had been earlier in the 2001 year, possibly January or February, and then later in the year to reconnect the various pipes. He noted that there would always be power boxes in the vicinity of the tank although he could not recall seeing them in 2001.
104 “Clearances” were issued by Shell each day. These were permits to ensure the air in the tank was safe from ignition. In addition to these clearances, “permits” were issued at the commencement of each job in relation to various aspects of the job for which permission was needed. Insofar as the Brockman’s employees undertook the work on the tank, it was necessary to obtain a “hot works” permit, and a “confined space” permit. The former was to obtain permission for the use of welding equipment, oxyacetylene torches and the like, and the latter to permit admission into the tanks by Brockman’s employees.
105 In addition, safety audits were conducted by a Shell safety officer once a month or so to ensure proper observance of safety procedures at a particular site.
106 A comprehensive safety induction program was undertaken by all new employees, and then renewed each two to three years relating to safety while at the refinery. In addition to risks of explosion, the Safety Induction Manual dealt with manual handling.[43]
[43] Exhibit 2 in the contribution proceeding
107 At the site, a Brockman’s crane could gain access to the area surrounding the tank to lift pipes such as the worker was lifting on the day of the incident. The crane would have to be careful of the temporary power outlets and generators, but they would not impede the use of the crane. If, however, there was any impediment to the movement of the pipes around the outside circumference of the tank, a crane may not have been appropriate, and it may have been appropriate to walk backwards as the worker and his gang had done on the day.
108 Bosnjak did not recall any complaint to him by the worker in April 2001 about the state of the site.
109 Brockman provided no manual handling training for employees while working at the Shell refinery. The procedure if there was a concern about manual handling was to raise it at onsite meetings.
110 There was a drop of about 100 millimetres from the asphalt surround of the tank to the ground below, and a further drop of 100 to 150 millimetres to the drain area. The shoulder of the road was a bit steeper in 2001 than in the photograph. Bosnjak could not recall any manual handling assessment of the work occurring on the date of the incident either by Brockman or Shell.
111 Mr Rodney Simm, orthopaedic surgeon, attended Court to give evidence and be cross-examined. In addition, his report of 30 May 2007 was tendered into evidence.[44] In that report, Mr Simm had presumed that the worker had commenced physiotherapy some short time after the incident and had received right shoulder treatment. When informed that in fact the first reference in the physiotherapist’s clinical notes to treatment of the right shoulder was 19 June 2002, and then sporadically thereafter, and that the first reference in the general practitioner’s clinical notes was on 4 June 2003, Mr Simm said that his view that neither the right nor the left shoulders were related to the incident was confirmed.
[44] Exhibit 1 in the recovery proceeding
112 He stated that the mechanism of injury, that is the throwing out of the worker’s right arm, but without contact with the ground, was unlikely to have caused any tear to the supraspinatus tendon. He said that 20 to 30 per cent of the population have a full thickness rotator cuff tear by the age of sixty. Approximately 80 per cent of the population have a full thickness tear by age eighty.
113 He said that given the complete lack of complaint to the treating
physiotherapist and general practitioner, that it was extremely unlikely that the
right shoulder problem was related to the incident.114 He further denied that the left shoulder problem could have arisen as a result of overuse by favouring the left arm with a disabled right arm. He said that the signs were classically those of degeneration in both rotator cuffs which were an age-related condition, and unrelated to trauma or injury.
115 He stated that had surgery not been successful, then it was likely that any ongoing problems were related to a pain disorder, and not physical symptoms.
116 He did not accept the proposition that the failure to make complaint shortly after injury was because the worker’s focus was upon his back problems. He said that even in the circumstances of a predominant injury, generally persons would complain of injury to other parts of their body. He said there was a distinct correlation in the development of the degenerative condition in each shoulder given the findings upon radiology. He disagreed with the views of the general practitioner and Mr Brink.
117 Evidence was given by Mr Peter Wright (“Wright”), a safety advisor employed by Shell at the refinery. I found Wright to be an impressive witness. He was well experienced in safety issues generally and the operation, particularly of outside contractors at the refinery. Wright has been the safety officer for about ten years at the refinery. He is one of now three safety “coaches”, although in July 2001 he was the only safety coach.
118 His role was generally to ensure compliance with the safety rules and procedures within the refinery. He stated Shell had a careful selection process for appointment of contractors who work on the refinery. It was a requirement that those contractors provide a high level of expertise in the particular area in which they were engaged and that wherever possible a long relationship with the contractors was sought so as to ensure they were
32 JUDGMENT
reliable, and adhered to the safety policy. He said that an oil refinery is a very specialised environment, with significant risk of major disaster, particularly in the area of fire and explosion and as such required very specialised safety operation and procedures.
119 He recalled Brockman commenced working on the refinery approximately ten years ago. At the outset any contractor, including Brockman, would be required to obtain a permit to carry out work in the area of tank repair or maintenance. Brockman were one of only two tank contractors within Australia with sufficient expertise to undertake this work at the refinery. Brockman would be required to apply for a permit for the work to be undertaken, and as part of that permit were required to provide a Job Hazard Analysis (“JHA”)[45] which was a document assessing hazards or risks at the job site and means by which such could be safely controlled. In addition, they would provide a work method plan, that is a plan as to how the job was to be undertaken and completed. In addition to the main permit, it may have been necessary to obtain permits including a “hot work” permit which would set out the conditions for performing work involving flames or sparks. They may have also required a “confined space” permit. A clearance certificate, issued daily, would be required to ensure the air in and around the tank being worked upon provided sufficient oxygen and was non-combustible. The general permit would refer to the area where the work was to be conducted, and the type of equipment to be used.
[45] Also referred to in the evidence as a Job Safety Analysis
120 The permits did not refer to routine manual handling tasks. That was a matter to be considered in the JHA prepared by the contractor.
121 The next point in the work process was for Brockman to confer with the employees of the earthmoving contractor, Dimac, at the site and to prepare a plan of the area showing the access needed by Brockman to the area around the tank, the road which would need to be installed to enable the equipment to be transported to the site, and an area where the work was to be carried out. Dimac would then proceed to put in a gravel road, and prepare the surface area to provide a firm base for the work. The road area would be bounded by star pickets with flags.
122 When that process was complete the site was “handed over” to Brockman.
123 Wright and other Shell employees would regularly inspect sites where contractors were undertaking works. He would be on the site at the tank during Brockman’s work each two to three days. He would look to ensure that there was compliance with safety procedures, particularly as to fire risk, and to ensure the work was being conducted in accordance with the permits granted. In particular, it was Shell’s policy to engender a culture of safety with the contractors and their employees. It was impossible, he said, for each and every aspect of the task undertaken by contractors to be supervised by himself or other Shell employees. If he saw some aspect of work which breached the safety protocols, then he would immediately speak to the supervisor and prevent the offensive practice. In terms of manual handling tasks, if he saw something which he perceived to be a breach of appropriate safety procedures for manual handling, he would immediately contact the supervisor and take steps to have the task changed. In relation to manual handling, again, Shell instructed its contractors to develop a culture of safety so as both the employees of the contractor, and its supervisors developed its own safety programs.
124 Fomin was a liaison officer between Brockman and Shell as at 2001. He is not now employed by Shell, and left approximately two years ago. His role was more involved with the scheduling of work to ensure sites were prepared and tanks evacuated to enable works to be done in accordance with Shell’s timetable.
34 JUDGMENT
125 Wright was shown the various photographs[46] and stated that the road depicted to the left of Photograph 1 had changed considerably since July 2001. In fact works had been carried out to the area shown in the photograph approximately four years ago, and a significant portion of the road under the horizontal pipe shown in the picture had been cut away to enable access under that pipe by vehicles. In 2001, the area of the road would have been a smooth, compacted surface, and capable of carrying large vehicles. In relation to Photograph 3, he noted that the shoulder of the road as shown in that photograph was not designed to carry any traffic, and was not compacted nor prepared for persons to work in the area. He noted there would have been some loss of clay material from the shoulder because of water drainage over the years. He did not believe there would be the large rocks as shown in the photograph on the road shoulder in 2001. He had received no complaints from anyone about the surface area around the tank, nor the state of the site generally at that time.
[46] Exhibit B in the contribution proceeding
126 He said it was not difficult to get Dimac to return to the site and undertake earthworks. They were at the refinery every day and it was a simple matter to have them return and carry out more works to prepare a particular area.
127 He noted that the contractors had weekly toolbox meetings in the lunchroom which were attended by all Brockman contractors. In addition, the contractors had daily job start meetings which were informal gatherings in the area of the tank with the eight or ten Brockman employees to talk about risk assessments. For example, the weather might change on a particular day bringing new or different hazards and risks which needed to be reassessed. He, or other Shell employees would occasionally go to those meetings, but it was not a usual occurrence.
128 At the conclusion of a job, steel plates and other materials left around the site would be cleaned up, and the site reinstated. At that point, it was handed back over to Shell.
129 Wright confirmed that pieces of rock might be used on the road construction, and be up to 70-millimetres in diameter. The larger rocks were generally under the surface and the surface itself was a smooth area.
130 Wright confirmed that he investigated the incident after he was notified in July 2001. He spoke to Hammond, a Brockman’s supervisor, and to Helen Jager, the nurse who treated the worker. Having made his investigations, he was given the impression by Brockman’s employees that they suspected the incident had not occurred. When he inspected the area where the worker was said to have been injured, he immediately realised that it was unsuitable for the task of carrying a 12-metre length of pipe, because of the ground surface. He said the Brockman’s employees should never have worked in that area. He noted the surface, particularly in the area of the drain was muddy. The proper area where works such as the lifting of a pipe was to be undertaken was only on the asphalt around the tank, the smooth surface of the road, or the area which had been prepared for Dimac’s work as shown in the foreground of Photograph 11.[47]
[47] Exhibit B in the contribution proceeding
131 He noted the shoulder of the road area as depicted in Photographs 1 and 3 would have been approximately the same configuration as in 2001 although some of the dirt and clay had been washed away.
132 Wright was questioned about his, or Shell’s capacity to regulate works of a manual handling nature. He stated:[48]
[48] T 512
“Q: And the fact that that didn’t occur, are you saying that’s because
you weren’t physically there on that particular occasion?---A:
What I’m saying is, that that – it’s – it’s a large site with 1,000 people working on it, you know, in hundreds of work groups doing similar work and yes, we’re not – our – our model is not to supervise a contractor, our model is to select the best contractors in the – in the land, pay them the right price and – and let them do their – their level of expertise with their work. We’ve there – I know it’s a bit corny, I’ve said it a few times – but to help them develop a strong safety culture for doing their work in an oil refinery.
Q: Mr Wright, could you please go to the - - -? A: ---Just to finish that - - - Q: Yes?--- A:
I mean maybe I’m not making this clear but could you imagine a – a job like rebuilding a tank that nothing could happen until a Shell safety advisor came and approved every step. You’re talking about men doing a – potentially a ten minute job, and deciding to do that that way amongst themselves probably in the spur of a moment. No – no work could ever take place in an oil refinery if – if you took your model that you were aiming at. …”
133 He said it was not his, nor other Shell employees’ practice to enter the worksite around the tank and it was necessary to obtain permission from the contractor’s supervisor to do so. It was not his practice to go on to such a site and supervise manual handling tasks, and said that Brockman would have been insulted had he done so. In his investigations after the incident, he did not speak to the worker and did not know that he had subsequently had spinal surgery.
134 He had not seen the worker and the other workers lift the pipe on 27 July, nor on any other previous occasion. He thought he may have seen other workers do a similar lift on one earlier occasion. Generally, he said that a lift of a pipe such as this across the ground ought not to have been undertaken. He said he was surprised for the 12-metre length of pipe to be placed against the outside of the tank and for it to be moved manually to the tank. He said there are a number of other methods which could have been undertaken to move the pipe. He confirmed there was no risk assessment undertaken by Shell of the particular task as he did not know that such a task was being undertaken. Had he seen such a task, he said he would have approached the supervisor
37 JUDGMENT
and told the workers to find a different way to do it. He said it would be impossible for Shell to supervise every manual handling task undertaken at the refinery as there would be very many such tasks undertaken at any one point in time. He agreed that given the surface of the shoulder was uneven, rough and sloping, it was a recipe for an injury to occur. He agreed that it would be possible for the drain area to be covered, by a steel plate, and for other works to be carried out in the area of the shoulder to make it appropriate for a lifting task. A bobcat may have been employed to that end.
135 Mr Ian Bridgland (“Bridgland”) has, since 2001, been the health, safety and security manager for the refinery. He has worked for Shell for thirty four years and has qualifications as a chemical engineer. Again, I found Bridgland an impressive witness with a comprehensive knowledge of the refinery, its procedures, and in particular safety issues. He gave evidence generally about the safety protocols and procedures, induction training and the permit system in existence. The initial induction training, carried out over half a day focussed upon sources of ignition, and gas in the atmosphere and the risks generated in a refinery as a result.
136 With its contractor, Brockman, Shell had a series of contracts for work to be undertaken. He had been unable to locate the contract for the work carried out at the tank in 2001. Amongst the contracts between Shell and Brockman, was a contract containing terms and conditions as to health and safety.[49] In that contract there was a reference to a health, safety and environment management plan (“HSE plan”). It was necessary for Brockman to develop and implement an HSE plan to address health, safety and environmental risks in respect of the work carried on at the tank. The contractor was required to describe such risks and address how they were to be managed, in consultation with its workforce. That consultation involved toolbox meetings. The HSE plan required statements and procedures as to manual handling and in particular identification of risk factors in accordance with national and state standards expressed in Codes of Practice. The HSE plan required a job safety analysis (“JSA”) to be completed.
[49] Exhibit 3 in the contribution proceeding
137 Bridgland had made investigations to attempt to locate the permit issued to Brockman for work at the tank. Generally such permits were destroyed after seven years, and he was unable to locate the one used for the work. He did, however provide a sample permit, which would have been similar to that completed to enable Brockman to undertake the work.[50] Brockman would have been required to provide the JHA for the work to enable a permit to be granted. The permit made provision for a clearance to be undertaken of the air in and around the tank by an authorised gas safety tester. Then the permit, JHA and daily clearance would be handed to Brockman each day it was undertaking its work. The permits made no reference to any manual handling tasks. Bridgland was uncertain whether Fomin was an employee of Shell, but he was on site regularly over a considerable period and was regarded as part of the wider Shell team. He worked with the tank maintenance teams to ensure work flowed and the site activities were performed efficiently.
[50] Exhibit 4 in the contribution proceeding
138 He agreed that Fomin was the “go to man” for Brockman in relation to the performance of its work at the tank, however if a contractor wanted to undertake some manual lifting process, it was not a matter to consult with Fomin about.
139 Bridgland agreed that any person, be they a contractor, a contractor’s employee or a Shell employee had the power to stop work if a hazardous task was involved. There was no process to require any clearance or permit for any manual handling task. He agreed that had he been aware that work was being carried out outside a designated area, which area had not been prepared and was muddy or unsuitable for work he, or other Shell employees would have stepped in if they were concerned. However, he said it was a matter for Brockman to specify where the work carried out was to be performed.
140 He was not aware of any steps being taken to the shoulder area of the road after the incident, including to change the area or cordon it off. He agreed that part of Wright’s responsibility was to check the permits were being complied with, but it was Brockman who was responsible for undertaking the work, and the manner it was undertaken. Part of the role of Wright was to intervene if he saw anything which was in any way hazardous.
141 Neither the permit nor the JHA would detail what work was to be done on any one day. Those documents were related to the managing of hazards and risks. He said it was usual practice to obtain permission from the operator (or contractor) to go onto the site which was under work.
142 As part of the safety induction, manual handling was not included. He believed Brockman adopted the HSE plan. He agreed that Shell was concerned to monitor manual handling activities conducted on the site if they were hazardous to employees. The same applied to Shell employees or even visitors.
143 Bridgland was involved in the development of safety policies. He accepted that to his knowledge neither he nor other Shell employees consulted with the Brockman health and safety officer, Bosnjak in accordance with Regulation 12 of the Manual Handling Regulations. Likewise he had not, and to his knowledge other Shell employees had not undertaken a hazard assessment in accordance with Regulation 13,[51] nor a risk assessment in accordance with Regulation 14. Likewise a risk control had not been undertaken in accordance with Regulation 15. He was not aware of any such assessments in accordance with the Regulations being undertaken by Brockman or its employees.
[51] Of the Occupational Health and Safety (Manual Handling Regulations 1999 (“the Regulations”)
144 While the bitumen apron was not designed as a pathway, it was used as a form of access to the tank by the contractors working on the tank. It was necessary to move safely around the tank as some of the ground in the area was muddy. He made reference to a system known as “Take 5” which was a five-step process introduced by Shell to encourage persons at the refinery in safety and risk hazard identification. The process required those persons to, when there was a change in the circumstances in the work that was being carried out, to stop work, identify any hazards, control those hazards and communicate with others in the workforce. He described this as a very significant initiative.
145 Mr Gino Macula (“Macula”) gave evidence. He is the manager of Dimac and had worked with the company for twenty-three years. Dimac provided a range of services to Shell at the refinery, including earthworks involving excavators and other heavy machinery, concreting works, the provision of holes, trenches, formwork and excavation. His principal role in the company was to work at Shell.
146 Dimac was the principal contractor retained by Shell to undertake this work. The process in respect of any particular job was that Shell would contact him and describe the works which were envisaged. He would then attend on site with a Shell representative and observe the area where the works were to be undertaken. Sometimes there was communication with a contractor to ensure the works being carried out were appropriate. A copy of the plan prepared by the worker[52] was provided to Macula, and he indicated by markings the area around the site where his company carried out work in 2001. That involved the provision of a road, and a “lay down” area of approximately 10 by 8 metres around the entrance to the tank.[53] The spoon drain shown in Photograph 1 was existing before the works were carried out. Before the road was installed, the area was relatively flat. Various sizes of rock[54] was used. It was likely rock of approximately 50-millimetre diameter was used at the bottom of the road. Then 40-millimetre rock, and finally on the top 20-millimetre rock was used with “fines” that is fine material to bind the rock together. The surface on top was relatively smooth and able to be used for vehicular traffic and pedestrians. The black rocks shown on the shoulder in Photograph 3 were likely to have been the 40-millimetre rock used in the road construction, overflowing onto the shoulder, although the shoulder area had deteriorated with water flowing over it. The lighter coloured rocks depicted in Photograph 3 had not come from Dimac’s construction work, but rather had come from the surrounding ground.
[52] Exhibit A in the contribution proceeding
216 It is clear, particularly from the evidence of Wright that Shell by its employees could have intervened in some task being performed by a contractor if it determined that task was a hazard or constituted a risk of injury. I am satisfied from the evidence that that intervention related not only to some aspect of work which could give rise to fire or explosion, or a manual handling task. Does this mean that Shell had “control” over the task being performed?
217 In Stratton,[99] Byrne J referred to the definition of “control” in the Oxford Dictionary as:
[99] (supra) at paragraph 17
“The fact of controlling, or of checking and directing action; the function or
power of directing and regulating; domination, command, sway.”
218 He concluded that in the circumstances of the prosecution under the OH&S Act with which he was concerned, ‘control’ had two aspects:
“Where it [the occupier] had a legal right to direct that Mr Baum [the worker] not perform the work in that way. The second is where, notwithstanding that the person has no right to give it, the employer saw it as within its area of authority to give such a direction and, importantly, the worker would accept it and act upon it. It matters not in either situation that other persons might also have control over the same activity.”
219 It is of note that this concept of control was in the context of a prosecution under the OH&S Act rather than a civil proceeding. Further, in my view, His Honour qualified this definition by[100] the following:
[100] paragraph 19
“Given the great variety of circumstances in which s.21(3) may apply, it is neither desirable nor profitable for me to attempt anything like an exhaustive analysis of the word ‘control’ or the expression ‘have control over’ and I do not do so.”
220 Thus, each particular situation must be assessed upon its own facts. In
Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd and
Henry,[101] the South Australian Full Court dealt with a factual scenario not dissimilar to the present case. A worker fell from defective scaffolding erected by a contractor upon an occupier’s premises. The fall could only have been prevented by the occupier ensuring such scaffolding was not erected, or by on the spot supervision directed as to the manner in which the scaffolders did their work. It was found that the scaffolders were competent, specialist contractors and that the occupier was entitled to rely on that competence without supervising the work. It was accepted that the occupier owed a duty to take reasonable care for the safety of persons entering the premises, such as the worker. The Court said:[102]
[101] [2001] SASC 199
[102] paragraph 37
“… the main focus of the duty of an occupier relates to the state of the premises, rather than to activities taking place on the premises. The duty of ABC as occupier of the premises would not usually extend to a duty to protect a person on the premises, not being an employee of ABC but an employee of a contractor working on the premises, from harm that resulted from the carelessness of the worker's own employer, or from harm that resulted from the manner in which another contractor carried out its work.”
221 I should say at this point that there is no issue as to Brockman’s negligence. Mr Tebbutt freely conceded that it was negligent and in breach of its duty as employer to the worker.
222 Further:[103]
[103] paragraph 38
“… ABC was not under a duty to supervise the manner in which workers employed by Scaffolding went about the task of erecting scaffolding. And it was the manner in which they did that that led to Mr Henry's injury. Putting it a little differently, ABC as occupier was under no duty to protect Mr Henry against the risk of harm as a result of workers employed by Scaffolding erecting a scaffold that was not safe. ….”
223 The Court further concluded that the activity was not inherently hazardous nor was there any special vulnerability on the part of the worker. Further, it was not a task over which the occupier exercised control. The Court found there was no duty owed.
224 The Court went on to consider whether, under the provision of the equivalent OH&S Act whether the occupier had “control”. The relevant provision contained a definition of control not dissimilar to that prescribed in the OH&S Act and the Regulations. The Court determined that “control” meant actual control, that is pertaining to matters which the occupier was managing or organising, otherwise, said the Court, the relevant provision would have very great reach.
225 This interpretation of control was followed in Reilly v Devcon Australia Pty Ltd.[104] The equivalent provision of the Western Australian legislation, concluded the Court, as meaning actual control over a particular matter affecting safety, rather than general responsibility for, or control over, the workplace. The Court said:
[104] [2008] WASCA 84, at paragraphs 35, 36 and 39
“…That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work): …a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.”
226 Further:
“A construction that imposed such a far-reaching obligation on a principal would produce unworkable consequences. There is no real scope for a principal (lacking the requisite expertise) to exercise actual control over the detailed manner of performance of work by a specialist subcontractor. If it endeavoured to do so, this would be more likely to lead to hazards than to avoid them. …”
227 That reference complements the evidence of Wright where he stated that it would be impossible for Shell to supervise every manual handling task of every contractor at the refinery on any day.
228 I conclude that the concept of control, when assessing the nature and extent of any duty of care and in the circumstances of this case, means actual control over the task being performed. That finding, in my view, is not in conflict with the conclusion of Byrne J in Stratton.[105] In that case His Honour specifically did not attempt to confine his meaning of control to every circumstance.
[105] (supra) – See further, Reilly (supra) at paragraph 38
229 Bearing in mind the expertise of Brockman and particularly the almost impossible task of supervising each and every manual handling manoeuvre performed at the refinery, I am of the view Shell did not “control” the task being undertaken.
230 In Stevens,[106] the Court was concerned with the interdependence of activities carried out by various contractors in a sawmilling operation. Brennan J stated:[107]
[106] (supra)
[107] at page 47
“… The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. …”
231 In Blackwood,[108] the New South Wales Court of Appeal was concerned with an injury suffered to a truck driver who was standing upon a load of steel upon his truck, tightening a chain. The steel moved and the driver fell, suffering injury. Blackwood was the steel manufacturer at whose premises the injury occurred. That company had contracted with the driver’s employer, a transport organisation, to transport the steel from the factory. The driver alleged negligence against Blackwood for failing to provide an alternative safe platform from which to tension the chain. The steel was loaded onto the truck via Blackwood’s employee. Tobias JA said:[109]
[108] (supra)
[109] at paragraph 64
“This lack of any control, let alone day-to-day control, over the task of securing the loads of the drivers of contractor vehicles takes the present case not only outside of the principle expounded in Christie, but also of that articulated by Mason P in Chalker …. This being so, the primary judge’s finding that the appellant ‘was in a position to control the loading procedures on its site even where drivers such as the [first respondent] were involved’ could not [give] rise to a non-delegable duty of care or, for that matter, any duty of care with respect to the securing of the first respondent’s load. The fact that it ‘was in a position’ to do so is irrelevant absent an actual exercise of control by the appellant over that activity by the giving of information and directions or in some other way. However, it was not under a duty to exercise any such control over the undertaking by the first respondent as an independent contractor of the task of securing his load. …”
232 The Court concluded there was no duty of care owed in those circumstances.
233 The matter of whether or not a duty of care was owed was considered recently in Bostik.[110] In that case a worker (Liddiard) injured his back when lifting a substantial weight upon premises occupied by Bostik. The worker was employed by Brolton who also occupied a small part of the premises. The incident occurred as part of the worker’s duties of cleaning up an area which Brolton had contracted with Bostik to undertake. The Court found that while Bostik was in control of the site where the incident occurred, that control was theoretical rather than actual. The Court said:[111]
[110] (supra)
[111] at paragraph 139
“The fact that an employer may be obliged to take reasonable steps to provide a worker with a safe system of work, does not preclude the existence of a duty owed by others to take reasonable care in their dealings with the worker, whether they be other employees, independent contractors, the occupier of premises which the worker is required to attend in the course of employment or other road users encountered in the course of travel. Where work is undertaken on the premises of a third party, that party may have a duty, which commonly arises from:
(a)
the degree of control or direction exercised or which the third party is entitled to exercise over the worker;
(b)
the condition of plant or premises under the control of the third party, or
(c)
the activities of others on the site, generally for the purposes of the third party’s undertaking or business.”
234 In considering the various aspects which I deem relevant in determining whether there was a duty of care owed, that is:
(a) The expertise of Brockman and the manner in which it conducted its work; (b) The lack of knowledge by Shell of the task being undertaken; (c) The fact that Shell had no effective control over the task, I conclude that Shell did not owe a duty to the worker in the circumstances of this case. It was entitled to rely upon the expertise and experience of Brockman and its leading hands as to the manner in which the work was carried out and the supervision of that work.
235 If I am wrong in this conclusion, I will go on to consider whether Shell breached a duty of care, either upon general principles or as an occupier pursuant to the provisions of the Wrongs Act.
Breach of Duty of Care
236 It was conceded by Mr McDonald that Shell owed a duty as occupier pursuant to Part IIA of the Wrongs Act 1958. That section provides:
“S.14B(3) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.” 69 JUDGMENT
237 In considering whether this duty has been breached, I should have regard to the various matters referred to in s.14B(4).
238 As earlier stated, the reason the worker suffered injury was a combination of two aspects. Firstly, there was the lifting of a heavy weight and carrying it in combination with other workers in a backwards direction for three or four paces. Secondly, the ground upon which the worker trekked was sloping uneven ground containing pieces of rock. It is artificial to separate out the two components. It was a combination of the two elements which led to injury. It is not appropriate to say merely because the shoulder was uneven and studded with rocks that therefore there was a breach of the occupier’s duty. The ground can only be assessed in the context of the task which was being undertaken. In another context, Gleeson CJ, in Neindorf v Junkovic,[112] said:
[112] [2005] HCA 75
“… Ordinary dwelling houses contain many hazards which give rise to a real risk of injury. Most householders do not attempt to eliminate, or warn against, all such hazards.
… Not all people live, or can afford to live, in premises that are completely free of hazards. In fact, nobody lives in premises that are risk-free. Concrete pathways crack. Unpaved surfaces become slippery, or uneven. Many objects in dwelling houses could be a cause of injury. …
The expression ‘reasonable response in the circumstances’ raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve … The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. …”
239 No doubt a worksite such as the refinery is very different from residential premises. Nonetheless, there would be many areas within the refinery which could become a risk of injury depending upon the activity which was conducted upon the premises. Sloping ground may be completely innocuous unless it is walked upon in a backwards direction. Likewise an impediment protruding from a tank would be seen as safe, unless approached by someone unable, because of the task being undertaken, to see the object.
240 It is clear that Shell could have taken steps to provide a smooth, flat surface upon which the pipe was to be carried. The evidence is clear that would not be a particularly difficult task nor overly expensive. It could be achieved by the contractor, Dimac, either flattening an area or putting in a steel plate. However, I am satisfied Shell did not know of the activity nor could it be said that it ought to have known. Its obligation as occupier of the site did not require it to observe each and every task which its experienced contractors was carrying out. That would be practically impossible. It was entitled to leave those tasks up to the control and supervision of Brockman. While the worker did complain about the site and about debris upon it, the complaint was not made to Shell.
241 The duty as occupier imposed upon Shell could not, in the context of this case, extend to protect the worker from harm which essentially resulted from the negligence of his own employer in relation to the manner in which that work was carried out.[113]
[113] See Complete Scaffold (supra), at paragraph 37
242 In those circumstances, I am satisfied that if Shell owed a duty at common law to take reasonable care against the foreseeable risk of injury, that duty was not breached. Further, I am satisfied that there was no breach of Shell’s duty as occupier pursuant to the Wrongs Act.
Breach of the Regulations as Evidence of Negligence
243 Both Brockman and the VWA allege that Shell was a deemed employer pursuant to the Regulations and as such was in breach in particular of Regulations 12, 13, 14 and 15. That breach, it is said, is a measure of the standard imposed and expected of a deemed employer and thus constitutes negligence by Shell.
244 There is no issue that neither Brockman nor Shell carried out a procedure to identify tasks involving hazardous manual handling as required by Regulation 13, undertook a risk assessment of those tasks as required by Regulation 14, nor carried out risk control as required by Regulation 15.
245 There is further no issue that Shell is a deemed employer of the worker pursuant to Regulation 11. Regulation 11 further provides:
“11(b) The duties of an employer under this part extend to such an independent contractor and employees of the independent contractor, in relation to matters over which the employer –
(i) has control; or
(ii) would have had control but for any agreement between the employer and the independent contractor to the contrary.”
246 That is, in order for Shell to be found in breach of Regulations 12 to 15, it must be said to have ‘control’ within the meaning of Regulation 11(b).
247 The objects of the OH&S Act include:[114]
[114] s.6
“(a) to secure the health, safety and welfare of persons at work; (b) to protect persons at work against risks to health and safety; (c) to assist in securing safe and healthy work environments. …”
248 Pursuant to the Regulations, it is clear that the obligations imposed upon Shell as a deemed employer prevail notwithstanding other persons may also owe such a duty.[115]
[115] Regulation 6
249 Again taking into account the matters considered above in respect of “control” I am of the view that Shell, in relation to the lifting incident, did not have control over the worker nor the task he was performing. In the specific circumstances of the facts of this case, in my view, control means actual control over what occurred, that is control by a person directly responsible for the safety of the worker in the task that was being undertaken. It is a concept, in my view, which imports a requirement to check, direct or regulate. In the context of the specialist independent contractor, it would be unreasonable to impose such a requirement.
250 In my view, there was no breach of the Regulations, and it cannot be said therefor that any such breach was a measure of the negligence of Shell.
Conclusion
251 For all of the reasons set forth above, I am of the view that it is not just and equitable to apportion any responsibility to Shell for the injury sustained by the worker, and it therefore ought not to bear any contribution to the damages paid by Brockman as sought in the contribution proceeding.
252 Further, I am of the view that no act, default or negligence on the part of Shell caused or contributed to the injury to the worker and thus find there is no basis upon which it ought indemnify the VWA pursuant to s.138 of the Act.
253 In those circumstances, I am not required to consider the amount of damages required to be calculated as Factor A in the formula in s.138(b) of the Act.
254 I shall make orders after consultation with counsel.
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Also described in the evidence as scoria, and blue metal
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