Stavrakijev v Ready Workforce - [2018] VSC 690

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2016 00797

ICO STAVRAKIJEV	Plaintiff
v
READY WORKFORCE (a division of CHANDLER MACLEOD PTY LTD) and HOLCIM (AUSTRALIA) PTY LTD	Defendants

---

JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	12-16, 19-23, 26-28 February, 1, 2, 5, 6 March 2018
DATE OF JUDGMENT:	13 November 2018
CASE MAY BE CITED AS:	Stavrakijev v Ready Workforce & Anor
MEDIUM NEUTRAL CITATION:	[2018] VSC 690

---

NEGLIGENCE – Workplace injury – Plaintiff injured at work when he fell down a set of stairs leading from a raised section of plant to the factory floor – Whether labour hire employer breached its duty of care – Whether host employer breached its duty of care – Contributory negligence not found – Contribution – Wrongs Act 1958 (Vic) s 24(2) – Zealley v Liquorland (Aust) Pty Ltd & Anor [2015] VSC 62 (5 March 2015) – Papadopoulos v MC Labour Hire Services Pty Ltd (No 4) (2009) 24 VR 655.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M Hartley QC with L Allan	Shine
For the First Defendant	R Middleton QC with N Dunstan	Lander & Rogers
For the Second Defendant	A Ingram with G Worth	Sparke Helmore

HIS HONOUR:

Introduction

In 2011 the plaintiff, Ico Stavrakijev, was injured at work when he fell down a set of stairs leading from a raised section of plant to the factory floor. Mr Stavrakijev worked as a labourer at a concrete pipe manufacturing plant operated by the second defendant, Holcim (Australia) Pty Ltd (‘Holcim’). He was employed by the first defendant, Ready Workforce Pty Ltd (‘Ready Workforce’), which was a labour hire firm. He brings this action alleging there was negligence by each defendant, and breach of duty as occupier by Holcim, which was a cause of the fall and his injuries.

The stairs which Mr Stavrakijev fell down were made of checker plate steel and comprised of a landing at the top, with three steps leading to the concrete factory floor below. Mr Stavrakijev claimed that as he stepped onto the landing to go down the stairs he slipped and fell. He says there was water, debris and oil from the manufacturing process on the landing surface. He alleges water, debris and oil on the landing, the frequency with which he had to go up and down the stairs, the speed at which he had to work, and the lack of a handrail on the right side of the stairs all contributed to him slipping and falling.

Ready Workforce denied liability for the fall and Mr Stavrakijev’s injuries. It submitted it took reasonable steps to identify and respond to risks to its employees at Holcim’s workplace, nothing more was required to discharge its duty to Mr Stavrakijev, the work place and systems were under the direction and control of Holcim, and any recommendations which it might have made in relation to the stairs or the work process were unlikely to have been implemented by Holcim.

Holcim argued that Mr Stavrakijev had failed to prove that there was water, debris or oil on the landing when he fell, that he slipped on the landing as he said, or that the condition of the landing or the system of work was a cause of his fall. Holcim submitted the stairs were constructed in compliance with relevant standards, were safe and did not represent a slipping risk to workers traversing them.

Both defendants alleged contributory negligence by Mr Stavrakijev because he was moving too quickly and failed to hold the available handrail as he descended the stairs.

In relation to the assessment of damages the significant issues between the parties related to the nature and extent of injuries sustained by Mr Stavrakijev and the impact of those injuries on his earning capacity.

Background

Mr Stavrakijev said he joined Ready Workforce in order to work at Holcim’s Laverton North plant, a job recommended to him by a friend. He started work as a labourer in the RORO plant at Holcim on 3 September 2010.

The RORO plant

The RORO plant produces concrete pipes ranging in diameter from 300 mm to 750 mm. The production process involves injecting concrete into steel moulds, which are then cured in steam chambers. RORO is an acronym for ‘Roll On Roll Off’, a reference to moulds being rolled through the plant on rails during the production process.

A view of the RORO plant was conducted on the second day of the trial. The plant is located inside a factory building and is elevated above the concrete factory floor. It is roughly set out in a square. Production starts and finishes at a bench located at one corner of the square (the ‘demoulding bench’). An overhead crane is operated to lift steel pipe moulds containing cured pipes onto the demoulding bench. Two workers operate rattle guns to undo each mould. A second overhead crane is used to remove the cured concrete pipe from inside the mould. Oil is sprayed inside the mould, it is then reassembled and a cylindrical steel reinforcement cage is placed inside.

When a mould is ready for production it is rolled from the demoulding bench onto rails which run along one side of the square formed by the RORO plant, leading at the other end to the traverse trolley (the ‘moulding rails’). The moulding plant is located partway along the moulding rails. Two moulds at a time are rolled automatically from the rails onto rollers in the moulding plant, which spin while concrete is injected into the moulds, acting as a centrifuge resulting in the concrete forming into the shape of a pipe within the moulds. The injection process is controlled by the machine operator from a console adjacent to the moulding plant. The cycle time in the moulding plant depends on the size of the pipe being produced. The cycle time for 300 mm pipes is 3 minutes 35 seconds. An additional 40 seconds is allowed to eject the completed pipe moulds from the moulding plant, and reload with two empty moulds. The cycle time for larger pipes is longer. The filled moulds are rolled automatically back onto the moulding rails, to the traverse trolley, which carries two filled moulds at a time across to the steam chamber section of the RORO plant.

The four steam chambers sit side by side and are parallel to the moulding rails. The moulding rails and the steam chambers are elevated above the factory floor, and are separated by a walkway on the factory floor. The operator console for the moulding plant is located within this walkway. The walkway ends at a wire fence beyond which are rails on which the traverse trolley runs. On one side of the walkway stairs lead from the factory floor to a platform at the end of the moulding rails close to the traverse trolley (the ‘traverse trolley stairs’). On the other side of the walkway stairs lead to an apron in front of the entrance to the steam chambers (the ‘steam chamber stairs’). Sets of rails run from the outer edge of the apron into and through each of the four steam chambers. When two filled moulds have been moved onto the traverse trolley, a control is operated to move the trolley to a point adjacent to a set of rails leading to one of the steam chambers. The moulds are then moved off the traverse trolley onto the rails, and are stopped by a buffer on the apron in front of the steam chamber. A worker then lowers the buffer and rolls each mould in turn into the steam chamber. There is a downward gradient from the apron to the steam chamber exit which assists with movement of the moulds along the rails.

Apart from the entrance and exit doorways, each steam chamber is fully enclosed. When a steam chamber has been filled with uncured pipe moulds, heavy plastic curtains are used to close each doorway and steam is directed into the chamber in order to cure the pipes within the moulds. The curing process lasts several hours. After it is completed, the chamber doorways are opened, and the cured pipe moulds are rolled through the exit where a worker to operates an overhead crane to lift each mould onto the demoulding bench where the completed pipe is removed as earlier described.

There were five work positions in the RORO plant. During the period Mr Stavrakijev worked there, Damian Cavka was the moulding plant operator and leading hand. Four workers rotated through the other RORO positions, which were crane operator, two positions at the demoulding bench, and the offsider who worked at the steam chambers. Rotation occurred when a steam chamber was filled with uncured moulds, which occurred approximately every 90 minutes.

The RORO shift commenced at 6.00 am. The first 15 minutes of the day were spent at a toolbox meeting. The plant operated for a shift of about 10 hours. At the end of the shift the plant was hosed down in preparation for work the following day.

The stairs

On 15 November 2011, while he was working as offsider, Mr Stavrakijev fell down the steam chamber stairs.

The steam chamber stairs are located to the side of the steam chamber apron immediately in front of steam chamber 1, and lead down to the walkway between the steam chambers and the moulding rails. They consist of a landing at the top, which is level with the apron, and three steps leading to the concrete walkway floor. The landing, and each step, is made of checker plate steel, which is solid steel plate with raised sections. The stairs are parallel to, and run along the side wall of steam chamber 1. There is a handrail across the back of the landing from the point it joins the steam chamber apron, and down the left side of the landing and the stairs. There is no handrail on the right side of the stairs.

When viewed at the start of the trial, the front edge of the landing and each step was covered by a metal nosing strip. The nosing strips were added to the stairs the day after Mr Stavrakijev fell.

The traverse trolley stairs are tread mesh, which is an open steel mesh or grille. The traverse trolley stairs are perpendicular to the moulding rails and have a handrail on each side.

Water, debris and oil in the RORO plant
Water

There were two main reasons for water being present in the RORO plant. First, hoses were used to clean parts of the plant and the factory floor during, and at the end of, each shift. Second, operation of the steam chambers produced steam and condensation.

Waste concrete accumulated on the moulding plant and on the factory floor beneath the plant. Approximately twice an hour it was necessary for the offsider to cross to the far side of the moulding plant from the steam chambers and use a hose to wash concrete waste and slurry from the moulding plant and to push the waste towards a drainage channel, which ran on the steam chamber side and parallel to the moulding rails. The machine operator also regularly used a hose to clean his side of the moulding plant and factory floor. Mr Stavrakijev said the machine operator also hosed down the walkway area between the two sets of stairs to keep it clean. He said that area was always wet. Mr Stavrakijev said the steam chambers were operated at night, and in the morning when they came in for work there was water everywhere. He said there was always water in the steam chambers, on the steam chamber apron and on the steam chamber stairs.

Billy Rutter worked in RORO from March 2011 to just before Christmas 2012. He said generally there was water inside the steam chambers, and when the steam chamber doors were opened condensation fell off the curtains, and it did not take long for the water to run down the stairs. He said the checker plate near the steam chambers was never dry and that the steam chambers did not seal properly so steam came out and caused condensation on steel.

Kevin Keogh worked for Holcim as Occupational Health and Safety Officer for about two years from early November 2011, then as a maintenance supervisor for about another two years. Mr Keogh said the walkway area between the two sets of stairs was constantly wet because of the wash down method used by Holcim. He said the hosing down of the plant commenced very close to the start of the shift. Mr Keogh completed an incident investigation worksheet on 16 November 2011, the day after Mr Stavrakijev’s fall (the ‘worksheet’). He recorded in the worksheet:

The cleaning process includes firstly hosing the pits and then cleaning the remainder with a shovel. This creates wet work areas and in the case of steps in question creates slippery steps during the course of the day.

A photograph taken by Mr Keogh, included in the worksheet, shows areas of water on the walkway. When asked about housekeeping, Mr Keogh said he formed the view that the floor was always wet. He said workers could transfer water on their boots from the steam chambers or the walkway onto the stairs. During the time he worked as Occupational Health and Safety Officer Mr Keogh performed a number of risk assessments of RORO tasks. On 9 December 2011 he and factory supervisor, Matthew Craig, completed a risk assessment worksheet in relation to the task of rolling moulds into the traverse trolley and into steam chambers. He said one of the hazards they identified was the constantly wet floors in the walkway area. He agreed workers could carry water on their boots from that area straight onto the checker plate stairs.

Benjamin Jones was Holcim’s Occupational Health and Safety Officer from 2007 until about late October 2011, when he was replaced by Mr Keogh. The worksheet completed by Mr Keogh was put to Mr Jones, and he agreed the floors in the walkway and steam chamber area were wet for most of the shift. He said water was often on the steam chamber stairs, there was leakage of condensation from the steam chambers during and shortly after the steaming process, and water could be walked onto the stairs from the steam chambers. Mr Jones said at some stage a decision was made to change the materials that were used to construct all the stairs in the RORO area from checker plate to tread mesh, and the reason for this change was because of water and debris, and that it was only the steam chamber stairs that had not been changed.

Garry Pirie worked as production manager at Holcim’s Laverton plant between 2006 and 2008. He said it was unlikely there would be water on the walkway area at around 6.45 am or 7.00 am. He agreed he could not say what the factory floor conditions were like between 2008 and 2011. He said during his tenure the floor between the apron of the steam chambers and the moulding machine was not hosed nor wet, and that the hosing occurred on the other side of a moulding panel and ran into the floor drain. I asked Mr Pirie about my observation of pooling of water on the walkway during the view, and he said when he visited the plant late in 2017 he noticed ‘… that the entire moulding panel guarding system had been changed from the time that [he] was there.’ He said flushing the slurry traps should not wet the floor behind the console because the hose was placed in a steel bracket that was on the side wall of the drain below floor level. He said the other source of water was condensation from the steam chambers. He agreed workers could track water out of the steam chambers on their boots, but did not think a significant amount of water would be tracked out of the steam chambers onto the stairs.

Damian Cavka started work for Holcim in the RORO plant in 2008, and in 2011 worked as the machine operator and leading hand in RORO. He is still employed by Holcim. He said water was only used to occasionally wash down the moulding plant, and there was no water from that wash down process that went into the RORO area, the steps or the platform. He said water did not spread across the concrete floor of the walkway between the two sets of stairs, and there was no pooling of water in this area. He said usually the concrete walkway was dry, and if there was any water on it, it would be tiny amount. Mr Cavka said there might be ‘a fraction of water’ from condensation on the apron in front of the steam chambers. In cross-examination Mr Cavka was taken to the risk assessment worksheet completed by Mr Keogh and Mr Craig in November 2011 that identified wet floors as a hazard and he said, in apparent contradiction to his earlier evidence, that you get water on the floor from hosing.

Consulting engineer, Geoffrey Waddell, inspected the RORO plant on 11 May 2017. He said at the time of inspection he saw water on the floor outside the steam chambers, on the steam chamber stair landing, and on the concrete walkway including at the bottom of both flights of stairs. He said a channel running under the traverse trolley stairs was full of water and slurry. A photo taken by Mr Waddell showed water on the steam chamber apron in front of steam chamber 1, which had flowed onto the landing.

Consultant engineer, Dr John Culvenor, inspected the RORO plant in August 2017. A photograph and videos taken by him show the walkway area to be damp or wet, with areas of pooling water. The steam chamber stairs and apron appear dry. In one video the offsider and machine operator are seen hosing the moulding plant.

At the time of the view the concrete walkway was wet and there was pooling of water.

I have reached the following conclusions in relation to water in the RORO plant in November 2011:

(a) The moulding plant, the floor beneath the plant and the walkway area were regularly hosed during each working day and the RORO plant was hosed at the end of each shift.

(b) Changes to the moulding panel guarding system and to the housekeeping system in RORO, which occurred after Mr Pirie left in 2008, resulted in a substantial increase in water in the walkway area.

(c) I accept Mr Keogh’s evidence that at the time of the fall the walkway was always wet.

(d) Steam and condensation was produced by the steam chambers. When steam chamber 1 was opened, condensation dripped from the curtains onto the steam chamber apron and ran onto the landing.

(e) Water accumulated on the steam chamber walkways.

(f) Water was transferred on workers’ boots to the steam chamber stairs by them walking in and out of the steam chambers, across the walkway and around the moulding plant.

In reaching these conclusions I have placed particular weight on the evidence of Mr Keogh, the worksheet he completed a day after Mr Stavrakijev’s fall, and the risk assessment worksheet completed by him and Mr Craig in December 2011. In most respects that evidence is consistent with the evidence given by the other witnesses, save for Mr Cavka and Mr Pirie. Mr Cavka’s evidence was not credible. He was not a reliable witness. Mr Pirie left the Laverton plant in 2008 and could not give evidence about conditions in 2011.
Debris

Mr Stavrakijev said sand, small black rocks, and wet and dry concrete were present in the RORO plant. He said he would get small pieces of concrete and rocks stuck in his boots when walking around the plant. He was shown two photographs of steam chamber 3 taken in April 2012 which showed rubble and water on the steam chamber walkway and he said that was what the steam chambers looked like when he worked at Holcim. Mr Stavrakijev said the steam chambers were cleaned once a year around holiday time. He said concrete stuck to your shoes in the steam chambers and that there was always concrete and rocks on the steam chamber stairs and platform. Sometimes the stairs got hosed with the daily clean, and sometimes they did not. He said by 7.30 am on a normal day there was sand, little rocks, wet concrete and dry concrete on the floor in front of the steam chambers. He said the machine operator was always hosing the walkway area to clean away little rocks. After hosing down the moulding plant and the factory floor the offsider was required to shovel waste concrete into a bucket.

Mr Rutter said there was generally rubble on the floor of the steam chambers, a lot more than was shown in the photographs of steam chamber 3. He described a flat section at the front of the moulds where a layer of concrete is deposited in the moulding process, and said when the new pipes hit the old pipes in the steam chamber it breaks off and lands on the floor. Mr Rutter said the steam chambers were thoroughly cleaned maybe once every two months. He said the steam chamber stairs might get hosed down at the end of the day, but that was about it. He said the rubble and rocks would stick between the grooves of your shoes ‘… and if you step on another bit of concrete on a wet floor it just comes out from underneath you’.

Mr Keogh said workers walking through the steam chambers could pick up debris on their boots and transfer it to the steam chamber stairs. He said the steam chambers often had rubble and debris which came off the end of the moulds and was picked up by workers on their boots and transferred to other areas. He said quite quickly after the shift started bits of rubble and concrete chips might be tracked from the steam chambers to the steam chamber stairs on the offsider’s boots.

In examination in chief Mr Jones said he would find it difficult to believe that there was frequently debris or slurry in the vicinity of the steam chamber stairs and the platform. However, in cross-examination he said RORO was a dirty workplace, workers may have carried debris from the steam chambers onto the platform and it was commonplace for people to transfer dirt, oil and concrete chips on their boots. Mr Jones said that in 2011 the steam chambers were cleaned from time to time on a needs basis, and sometimes there was debris in the steam chambers and the water did not drain correctly. He said it was quite possible that on 15 November 2011 the steam chambers were in a worse condition than shown in the April 2012 photograph of steam chamber 3. He agreed the safe operating procedures for the RORO plant did not specify cleaning and housekeeping procedures for the steam chambers.

Mr Pirie agreed chips of concrete could come off the moulds in the steam chambers. He agreed workers might track concrete chips or debris on their boots out of the steam chambers. Mr Pirie said the steam chambers were definitely cleaned at Christmas as part of the annual shutdown. He said the steam chamber walkways were a constant housekeeping issue. Mr Pirie agreed the April 2012 photograph of steam chamber 3 showed a lot of rubble and water. He said during his time at Holcim people came in on a Saturday to clean the pedestrian areas of the steam chambers and therefor would not have expected to see what was shown in the photograph when he was a manager, and had he seen it ‘… [he] would have asked the fella that [he] was paying on Saturday what he was doing all day’.

Mr Cavka said it took about an hour and a half to fill a chamber with moulds, and that two or three times per chamber cycle the offsider hosed excess concrete from the moulding machine, pushing it with the hose across the floor into the drain to the edge of the fence. The offsider would then shovel the excess concrete into a wheelbarrow. Mr Cavka agreed if there was debris in steam chamber 1 it could be tracked from the steam chamber onto the platform of the steam chamber stairs. He agreed that the process of having cleaners clean the steam chambers on Saturdays had been abandoned by 2011, and to cut costs two workers stayed back on Fridays to clean instead. He agreed that towards the end of the week the steam chamber floors had a lot more rubble than was shown in the photographs of steam chamber 3 taken in April 2012. He agreed that workers could get bits of concrete or pebbles stuck in the tread of their shoes when walking around the factory. He said there was less mess in steam chamber 1 than in the other steam chambers where the larger moulds were cured.

A Holcim report titled ‘RORO Steam Chamber Incident 5-4-2012’ records the following:

The conditions of the steam chamber walkway were quite heavily littered with concrete waste accumulated over a period of time. This highlights that the area hazard inspections are not being completed effectively.
The safe work procedures for RORO offsiding do not specify that cleaning and housekeeping activities are to be performed as part of this task.

Corrective actions listed in the report included ‘clean all steam chamber walkways’ and ‘add steam chamber clean-ups to the SHE Schedule as a monthly action item’.

I have reached the following conclusions in relation to debris in the RORO plant in November 2011:

(a) Regular cleaning of the steam chamber walkways undertaken each Saturday while Mr Pirie was the production manager at the plant, ceased sometime after 2008.

(b) In the period Mr Stavrakijev and Mr Rutter were working in the RORO plant, cleaning of the steam chamber walkways was irregular and infrequent, and the walkways were typically heavily littered with concrete rubble and debris.

(c) As a consequence of the accumulation of rubble and debris, water did not drain from the steam chamber walkways as it should, and the walkways were often wet.

(d) Debris was transferred on workers’ boots from the steam chambers through the plant, and in particular to the landing and steam chamber stairs. The debris consisted of concrete, stones and sand.

(e) Stones and concrete debris often became stuck in the tread of workers’ boots.

(f) The offsider regularly shovelled wet waste concrete from the factory floor into a bin or wheelbarrow. There were often stones from the waste concrete on the walkway. Wet concrete, stones and slurry were transported on the offsider’s boots to the steam chamber stairs.

(g) The steam chamber stairs were not always hosed at the end of every day during cleaning of the RORO plant.

Oil

Mr Stavrakijev said excess oil sprayed inside the moulds at the demoulding bench dripped on the workers’ pants and shoes. He said oil on your shoes would mix with water from the steam chamber area and on the stairs.

Mr Rutter said the steel floor around the demoulding bench was coated with oil all the time. He described conditions in the steam chambers as ‘rubble, oil, water’.

Mr Keogh said there was overspray of oil around the demoulding bench, and that coconut fibre was put on the ground to control the oil. He did not think oil would be picked up on workers’ boots and transferred to the steam chamber stairs at 6.45 am. In July 2013 Mr Keogh completed a risk assessment worksheet for the demoulding bench area in which he identified the risk of slips caused by the oil overspray. He said the coconut fibre was effective when it was there, but it was not always there.

Mr Jones said there was no trail of oil or build-up of oil to the steam chamber area. However, Mr Jones also said there was a concern that if nosing strips were installed on the steam chamber stairs they may become slippery because of a build-up in dirt and oil from workers’ boots.

Mr Pirie said coconut fibre spread on the floor around the demoulding bench was designed to absorb oil overspray. He agreed that if the coconut fibre was not spread there was a risk workers would stand in the oil and track it to other parts of the facility. He said he did not see how oil could be tracked to the steam chamber area by 6.45 or 7.00 in the morning. In the first 45 minutes after the shift started probably the only person to use the steam chamber stairs was the offsider, and the oil sprayer would not have started by the time he walked through the demoulding bench area, so oil could not get to the steam chamber stairs at that time.

Mr Cavka said ‘we do get a fraction of overspray’ of oil at the demoulding bench, which is absorbed by coconut dust which is ‘absolutely sensational’. He said when coconut dust was not available they used patching sand.

In two of the photographs taken by Dr Culvenor the floor around the demoulding bench is seen to be wet, possibly with oil. There does not appear to be any coconut fibre on the floor. No witness was asked about what was seen in these photographs.

I have reached the following conclusions in relation to oil in the RORO plant in November 2011:

(a) Overspray of oil at the demoulding bench could fall directly onto workers’ boots or transfer onto workers’ boots from the floor.

(b) Coconut fibre was effective in soaking up oil overspray, but was not always spread around the demoulding bench.

(c) When coconut fibre was not used oil may have been transported on workers’ boots to the steam chamber area.

The traverse trolley system

When the RORO plant commenced production there was an automated system to move the filled moulds off the moulding rails onto the traverse trolley. Some years before Mr Stavrakijev’s fall, in circumstances not fully explained, the automated system fell into disuse or disrepair or was changed, so that with each set of moulds that were produced it was necessary for the offsider to cross from the steam chambers to the end of the moulding rails to push the moulds onto the traverse trolley.

In the worksheet Mr Keogh recorded the following:

Worker was following routine procedure as defined in RORO procedure LAV-SWP-offsiding RORO. This involves managing his way up and down steps at regular 3 minute intervals when manufacturing 300mm pipes.
His task is to roll mouldings onto and off traverse trolley and cleaning slurry pits. This involves managing his way up and down steps at regular 3 minute intervals when manufacturing 300mm pipes.
There appears to be an unnecessary amount of manual labour involved in placing moulds onto and off traverse trolley.

In the worksheet under ‘Corrective actions’ Mr Keogh recorded:
Revise work layout to minimise use of steps.

On 22 February 2012 Mr Keogh and Mr Cavka completed a risk assessment worksheet in relation to the task ‘Pipe mould transfer from Moulding machine onto Traverse trolley. Manually handling pipe moulds.’ In that document they recorded as a hazard:

Walking up and down wet stairs. 1000 steps per day.

The current control in relation to that hazard was recorded as nil. The selected control recorded was:
Eliminate requirement by repairing existing Lift tables.

Mr Keogh explained the lift tables were part of the automated system used to move the filled moulds from the moulding rails onto the traverse trolley, and for some reason that system had been decommissioned. Mr Keogh said he thought at the time of Mr Stavrakijev’s fall that the layout of the system was incorrect, he could not see the need for people to go up and down the stairs so often, and there was no ‘validity’ in the role of manually pushing the moulds onto the traverse trolley. He recommended the automated system be reintroduced to reduce the number of times the offsider had to go up and down the stairs, which he said reduced the risk of slipping on the stairs. He said his recommendation was implemented after he became maintenance supervisor, which happened about two years after he started at Holcim in November 2011. After the automated system was reintroduced, the offsider could remain on the steam chamber apron rather than having to cross to the moulding rails each time moulds were produced.

Initially Mr Cavka was adamant an automatic system for transfer of moulds onto the traverse trolley was in place at all times. Later he accepted the automatic system was only re-introduced in recent years. Mr Cavka participated in the February 2012 risk assessment, yet disclaimed involvement in, or agreement with, identification and assessment of risks recorded in the report which bore his name. Later he said the report was exaggerated to achieve the system change they wanted. I again find Mr Cavka’s evidence unconvincing.

How fast was the offsider required to work?

The offsider’s work involved going to the end of the moulding rails to push each set of completed moulds onto the traverse trolley, returning to the steam chamber apron to position the moulds on the apron after they rolled off the traverse trolley, pushing the moulds from the apron into the steam chamber, pushing cured moulds out of the steam chamber, hosing the moulding plant and the floor beneath the plant, and shovelling waste concrete into a bin or wheelbarrow. Mr Stavrakijev said this involved going up and down the steam chamber stairs up to 40 times an hour. He said it was necessary to work fast, and that he was often rushing around to complete the work. He said you had to keep up with the job, and everyone worked at that pace. He disagreed that he had been warned by Mr Cavka about working too fast in the RORO area.

Mr Rutter said it was flat out all day in the steam chambers. He said the work was fast paced, depending on the chamber you were working in. Mr Rutter said people got a talking to from Mr Cavka if they fell behind and he had to help them.

Mr Cavka said there was no need to hurry when working in the offsider position. He was asked whether some workers did not keep up with the timing of the production cycle, and he agreed they had workers who were not quick enough for RORO. Mr Cavka disagreed that he would give people a talking to if they fell behind, but said he would say ‘Come on, boys, you know — let’s, you know, fire up a bit more’. He described Mr Stavrakijev as one of the best workers, but said he worked too fast and ‘… on a few occasions I actually asked him to slow down because he was an accident waiting to happen.’ He said Mr Stavrakijev was normally working as offsider when he told him to slow down, and he did this three or four times. Mr Cavka said he did not formally take up the matter of Mr Stavrakijev working too fast, and he did not report the matter to the supervisor, Mr Craig.

I conclude that the lack of automation of the process of moving the filled moulds onto the traverse trolley added significantly to the work requirements of the steam chamber worker, and resulted in the need for that worker to go up and down the stairs many times each hour. I accept the evidence of Mr Stavrakijev and Mr Rutter that the offsider was required to work at a fast pace, particularly when the 300 mm pipes were being produced.

The evidence of Mr Cavka was inconsistent and unreliable. On the one hand he said there was no need to work quickly or to rush while working in offsiding. On the other, he agreed some workers found it difficult to keep up, and that Mr Stavrakijev did rush. He disagreed that he had ever admonished workers for not keeping up, yet he said he had admonished Mr Stavrakijev on three or four occasions for working too quickly.

How fast was Mr Stavrakijev walking as he approached the steam chamber stairs?

The defendants submitted that Mr Stavrakijev was moving too quickly, and that this was the reason for the fall.

It was put to Mr Stavrakijev that he was ‘moving beyond a normal walking pace’, and that was the reason he was unable to control his movements when he fell, and he said that was not true, and that he was going down the stairs like he did every day. Mr Stavrakijev was cross-examined on a history contained in Mr Waddell’s report, ‘As he slowed his pace at the top of the stairs his foot slipped forwards, and he fell down the stairs’, and it was put to him this indicated he was moving at a fast pace and he said, ‘Like I always go there. It was the same’. Mr Stavrakijev said he frequently had to rush to complete his work, he did not run, but you had to keep up, and everyone works at that pace.

Before preparing an addendum report on 8 February 2018, Mr Waddell telephoned Mr Stavrakijev to ask him how quickly he was moving at the time of the fall, and said he could not remember. Mr Stavrakijev explained that a gentleman called him on a Sunday, he was not sure who he was, that he was a bit reluctant to give him information, but that he told him something because he did not want to hang up on him. I accept Mr Stavrakijev’s explanation for the manner of his response to Mr Waddell.

Mr Cavka said when he spoke to Mr Keogh the day after the fall, he told him Mr Stavrakijev was going too fast and that was a cause of his fall. Mr Cavka had his back to Mr Stavrakijev, did not see him before he fell and only saw a reflection in the control panel of Mr Stavrakijev falling. He did not give evidence of any observation he made that indicates Mr Stavrakijev was going too fast and this was a cause of his fall. Mr Keogh said, had Mr Cavka told him something about the cause of the fall, he would have recorded it in the worksheet. There is nothing in the worksheet to indicate that Mr Stavrakijev was going too fast. I do not accept the evidence given by Mr Cavka.

I conclude that immediately before he fell, Mr Stavrakijev was walking quickly from the steam chamber apron to the steam chamber stairs, and that this was the usual pace at which he worked.

The time of the fall

Mr Stavrakijev said that he fell at about 8.30 am. Holcim submitted the fall probably occurred at 6.45 am, and certainly no later than 7.30 am. The time of the fall was said to be relevant in two ways. First, Mr Stavrakijev maintained that when he started work that morning he was stationed first in the demoulding bench before transferring to the offsider position. It was submitted by Mr Stavrakijev this meant it was likely oil overspray was transported on his boots to the steam chamber area, and was a contributing cause of him slipping and falling. Second, Holcim submitted:

(a) there was no direct evidence of water or debris on the steam chamber stairs when Mr Stavrakijev fell;

(b) it was integral to Mr Stavrakijev’s case that the fall occurred at 8.30 am in order to allow more time for water and debris to be transferred onto the steam chamber stairs, and to be a contributing cause of the fall; and

(c) because the fall occurred at 6.45 am, or at latest 7.30 am, the RORO plant was not in full production. Mr Stavrakijev’s case was undermined because it became speculative to suggest there was water or debris on the steam chamber stairs at the time he fell.

Mr Stavrakijev said he started work at 6.00 am on the morning of the fall, worked between one and one and a half hours on the demoulding bench before transferring to offsiding between 7.00 am and 7.30 am. He said the fall occurred at about 8.30 am.

In the worksheet Mr Keogh recorded that he interviewed Mr Stavrakijev and Mr Cavka. Mr Keogh said no written statements were prepared, that he could not recall speaking to Mr Stavrakijev, but he did speak to Mr Cavka. The worksheet records the following question and answer:

Hours worked prior to the incident .75

Mr Keogh said it was more likely this information came from Mr Cavka.

Mr Cavka was working at the moulding control panel when Mr Stavrakijev fell, and went to his aid immediately after the fall. He said the fall occurred at 6.45 am. In cross-examination Mr Cavka was taken to the worksheet, which he said he saw when he was conferring with lawyers the day before giving evidence. By the time Mr Cavka completed his evidence it became clear he had no independent memory of the time of the fall, but was relying on the accuracy of what was recorded in the worksheet. He said on the day of the fall he completed a first aid report in which he recorded the time of the fall, and, later the same day, an investigation report. The plaintiff made a call for both reports, but they were not produced. Counsel for Holcim said an archive room of documents, which may have included documents relevant to the proceeding, was inadvertently cleaned out and the documents destroyed. Mr Cavka said the first aid report would have gone to Mr Keogh and that the information about the time of the fall would have been transferred from the first aid report to the worksheet.

If a first aid report or investigation report was completed by Mr Cavka on the day of the fall it cannot now be produced. It is uncertain whether the time of the fall was accurately recorded by Mr Cavka in a first aid or investigation report, or whether that information was accurately transposed to the worksheet in response to the question ‘Hours worked prior to the incident’. In my view evidence that the fall occurred at 6.45 am is not reliable.

In the worker’s incident claim form signed by Mr Stavrakijev on 24 January 2012 the time of the fall is recorded as 8.30 am. In the employer injury claim report the fall is recorded as occurring at 7.30 am.

Mr Stavrakijev was interviewed by Mr Waddell on 11 May 2017 for the purpose of preparation of a report in relation to the fall. Mr Waddell recorded that the fall occurred at ‘about 7.00 am or 8.00 am’. Mr Stavrakijev accepted he may have told Mr Waddell that.

Mr Stavrakijev rang Ready Workforce very early on the morning after the fall and reported the incident. He spoke to Tania Jessup, who at that time worked as a supervisor in National Recruitment and Labour. Ms Jessup could not recall speaking to Mr Stavrakijev, but said her process was to complete an incident report form on the computer in real time as she received a report.

Mary Stojanovska, Mr Stavrakijev’s wife, said she rang Ready Workforce on the morning after the fall to advise that her husband was not able to attend work. She accepted Mr Stavrakijev may have spoken to Ready Workforce during that call, or that he may have rung independently of her. She believed her husband fell at 8.30 am, and did not recall ever saying it occurred at 7.30 am.

The incident report form was completed by Ms Jessup at 5.05 am on 16 November 2011, and printed at 5.24 am. The description of the incident reads:

Walking down some metal stairs and has slipped and landed on his bottom and back. Shoes may have been wet from moisture on the ground.

The time and date of the incident is recorded as 7.30 am on 15 November 2011. The incident is recorded as being reported at the workplace at 7.35 am. Description of injury reads:
Entire bottom cheek is bruised/purple and swollen. Has also got a little pain in right ankle.

The task being performed was:
Walking down some stairs.

The description of treatment provided was:
Ice pack was provided on site.

Ms Jessup said she was known in the office as the one who was best able to understand callers who had a language barrier, and she could only recall one occasion when she was unable to understand a caller from a non-English-speaking background. She agreed it was possible she spoke to Mr Stavrakijev’s wife, who might have been the person that told her the time Mr Stavrakijev fell. However, it is more likely that when he spoke to Ms Jessup early on the morning of 16 November Mr Stavrakijev told her details of the fall, including the time at which he fell. Ms Jessup gave a very clear account of her work process. I am confident she accurately recorded what Mr Stavrakijev told her. I conclude the fall happened at 7.30 am.

I have reached this conclusion with some hesitation. I regard Mr Stavrakijev as an honest and reliable witness. However, the first mention of the fall occurring at 8.30 am is the record in the worker’s injury claim form completed over two months after the fall. Mr Stavrakijev told Mr Waddell the fall occurred between 7.00 am and 8.00 am, which is an indication that his memory of the time at which he fell is not clear. In relation to this issue I conclude Mr Stavrakijev’s memory is inaccurate, and that the fall occurred at the earlier time of 7.30 am.

Was there water, debris and oil on the landing when Mr Stavrakijev fell?
Water and debris

I conclude the fall occurred at about 7.30am. Production commenced at 6.15am, about 75 minutes before the fall. It is most likely Mr Stavrakijev was working as offsider during this period.

Steam chamber 1 was operated at the end of the previous day’s shift. I conclude that when the curtains to the steam chamber were opened on the morning of 15 November 2011, condensation ran off the curtains onto the steam chamber apron and, most likely, from there onto the landing of the steam chamber stairs.

In the 75 minutes before the fall about 16 sets of 300mm moulds were produced. This means before the fall, Mr Stavrakijev walked in and out of steam chamber 1 on at least 16 occasions to push out completed moulds and push in the new moulds. He also walked from the steam chamber apron, down the steam chamber stairs, across to the traverse trolley stairs to the end of the moulding rails, and returned to the steam chambers at least 16 times.

It is likely in the same period Mr Stavrakijev hosed down the moulding plant two or three times and shovelled waste concrete into the bin, and Mr Cavka hosed excess concrete from the moulding plant and the walkway floor. I conclude that as a consequence, the concrete walkway was wet and there was pooling of water.

The evidence of Mr Stavrakijev, Mr Rutter, Mr Keogh and Mr Jones, which I accept, leads to the conclusion that the steam chamber and moulding plant area of RORO was a wet and dirty environment.

It is likely that by 7.30 am on 15 November 2011 water, concrete and stones had been transferred from the steam chamber, the walkway and around the moulding plant onto the steam chamber stairs, on Mr Stavrakijev’s boots and possibly on the boots of other workers. It is likely that when he fell there was concrete debris and stones on Mr Stavrakijev’s boots, and they were wet.

Mr Stavrakijev said there was water, dry concrete, wet concrete and small rocks on the landing when he fell. Mr Stavrakijev was asked a number of times in cross-examination whether he had a specific memory of the condition of the landing when he fell. The following exchange illustrates the line of questioning:

Do you have a specific recollection as to the condition of the checker plate in the vicinity of the curing area that we saw as at 15 November 2011 when you were on it and immediately before you fell?---Like always it was dirty, water.
Doesn't answer my question. Do you have a specific recollection of the condition of that checker plate immediately before you fell on 15 November 2011?---Like always with water, sand, rocks.
Are you able to answer my question? I'll put it again and listen carefully. Do you have a recollection of the condition of the checker plate that you say you slipped and fell from on 15 November 2011 immediately before you slipped on it?---Look like I said you know like it's always been like that, I slipped. I mean you know there was water on it.

Holcim submitted this was evidence of Mr Stavrakijev’s belief that there was always water and debris on the stairs, and not evidence based on observation that there was actually water and debris on the landing at the time he fell. I disagree. I understand the thrust of Mr Stavrakijev’s evidence to be that when he fell, there was water and debris on the landing, which was the condition it was always in. However, I add that, disregarding evidence of Mr Stavrakijev as to his observations of the landing when he fell, I would still reach the conclusion that there was water and debris on the landing at the time of the fall. In my view, the evidence which I have summarised overwhelmingly leads to that conclusion.

Mr Cavka said in examination in chief that at the time of the fall the steam chamber apron was dry and there was no debris on the steam chamber stair landing. In cross-examination Mr Cavka agreed he had not inspected the floor before the fall, and that he was operating on his belief about the state of the floor at 6.45 am. He was asked:

Again I suggest you had done no inspection for whether there was any debris on the steps that morning?---What we do the night before is we wash everything out so in the morning everything is spotless. It's been the same protocol system since well before I started.
What you're doing I suggest is relying on that practice and your understanding of the usual practice that morning to say there was no debris on the checker plate?---Correct.

Mr Cavka then said he ‘would have had to’ check the landing after the fall to see if there was water or debris, and that it ‘would have been in a report’. Mr Cavka could not say when he inspected the landing or what he recorded in the report. No report was produced. Mr Cavka’s evidence was unconvincing.

Oil

There is little evidence to suggest that oil was regularly transferred from around the demoulding bench to the steam chamber stairs. Coconut fibre spread around the demoulding bench was effective in soaking up oil overspray, and significantly reduced the possibility of oil being transferred on workers’ boots. There is no evidence as to whether coconut fibre was used on the morning of 15 November 2011 or over preceding days. Mr Stavrakijev worked as offsider from the start of the shift. Because he did not work around the demoulding bench that morning there was little chance oil was transferred on his boots to the steam chamber stairs, even if coconut fibre was not being used. Mr Stavrakijev did not say he saw oil on his boots or on the landing when he fell. I am not satisfied there was oil on the landing or Mr Stavrakijev’s boots when he fell.

The evidence of Mr Waddell and Dr Culvenor

Both Mr Waddell and Dr Culvenor assessed the geometry and construction of the steam chamber stairs and concluded they were compliant with relevant standards.

The dynamics of the fall

There was no dispute that Mr Stavrakijev fell down the steam chamber stairs. However, Mr Stavrakijev was challenged by Holcim on the basis that he did not slip on the landing, but more likely missed his step as he descended the stairs.

Mr Stavrakijev said when he stepped on the landing to go down the steam chamber stairs he slipped and fell backwards onto his right side, and that his lower back and right side made contact on the stairs but he could not say where that occurred. He said when he came to a stop his legs were on the concrete floor and his bottom was on one of the steps, either the first or second step from the concrete floor.

Dr Culvenor analysed the dynamics of a slip on the landing. He said that had Mr Stavrakijev slipped as he said he would have landed on the landing, and not at the bottom of the stairs. He concluded:

But loss of control by slipping on the upper level cannot lead to an impact on the lower level. A leg may extend across the steps toward the lower level. The contact point though of the fall proper if losing control of footing by way of a slip on the upper level would remain on the upper level.
A misplacement of the foot so that it tipped over the nose or a misjudgement perhaps taking two steps at a time would not involve the same lack of feasibility.

Dr Culvenor reasoned that a slip would most likely occur when the heel of the forward foot landed on the platform. He estimated that at that point the centre of mass position of the body was about 0.61m rearward of the forward toe. Dr Culvenor said Mr Stavrakijev’s body would move forward 0.40m during the fall until his buttocks contacted the landing. He said if Mr Stavrakijev’s forward toe was at the edge of the landing when the slip commenced he would fall to a point about 20cm back from the edge and he would remain on the landing. Holcim relied on Dr Culvenor’s analysis to submit it was unlikely Mr Stavrakijev slipped on the landing as he alleged, and that it was more likely he misplaced his foot or misjudged a step, and this was the cause of the fall.

Dr Culvenor’s analysis is based on a number of assumptions. In his report he records:

The speed of walking is modelled for example as one m/s; a slow steady pace as Mr Stavrakijev describes.

Dr Culvenor described casual walking speed as 4km to 5km per hour. The speed he assumes for the purposes of the analysis is 3.6km per hour. In fact there is no history of Mr Stavrakijev describing walking at ‘a slow steady pace’. I have accepted the evidence of Mr Stavrakijev that he was walking at a fast pace when he approached the steam chamber stairs. It is likely, as both Dr Culvenor and Mr Waddell observed, that Mr Stavrakijev’s pace would slow somewhat as he moved down the stairs. However, in my view it is likely that when he lost control Mr Stavrakijev was moving significantly faster than Dr Culvenor assumed. Had he been walking at 5km per hour, still only a casual walking speed, then on Dr Culvenor’s analysis Mr Stavrakijev’s buttocks would have contacted the landing just 4cm or 5cm from the front edge.

A second assumption Dr Culvenor makes, which is obvious from the terms in which he expressed his opinion, was that after he fell Mr Stavrakijev’s body first made contact with the stairs at the lower level. Mr Stavrakijev said that when he came to a stop after falling his buttocks were on the lowest or second-lowest step, and his legs were in front of him on the walkway floor. However, he was unable to say whether or not his body made contact with the landing or other steps as he fell. Mr Waddell said that the combination of the forward momentum of Mr Stavrakijev’s body, the relatively steep slope of the stairs, gravity, and the fact that his feet and body may act like a ski on the stairs, meant it was likely, if he fell close to the edge of the landing, Mr Stavrakijev would end where he did, at the bottom of the stairs.

Mr Waddell raised further issues in relation to Dr Culvenor’s dynamics analysis. First, he said it was more usual when a person slipped that at least one foot remained in contact with the supporting surface, which had the effect of slowing the fall because the person did not fall as a totally unsupported dead weight. This allowed for the possibility, Mr Waddell said, that during the fall Mr Stavrakijev’s momentum carried him further forward than Dr Culvenor concluded, and thus closer to or over the landing edge. Second, Mr Waddell said it was possible the slip initiated when Mr Stavrakijev was further forward in his stride than assumed by Dr Culvenor, so that his centre of mass was significantly closer to the front edge of the landing. The experts agreed most slips occur when the heel of the leading foot strikes the surface or the toe of the following foot leaves the surface. Mr Waddell said slips also occur when a person is decelerating while bringing their trailing foot forward. This results in the need for sufficient friction between the foot on the ground and the surface to counter the force associated with the deceleration. Mr Waddell said a foot flat on the checker plate surface does not gain the benefit of additional friction associated with the raised sections of the surface, and that friction would be further reduced if the checker plate was wet and contaminated with debris and oil. Third, Mr Waddell noted Mr Stavrakijev was not walking straight forward but was turning on the landing to go down the stairs, which increased the need for friction and gave support to the possibility the slip initiated when Mr Stavrakijev was further forward in his stride.

I do not accept Dr Culvenor’s opinion that the mechanism of fall described by Mr Stavrakijev was not feasible or was inconsistent with the principles of physics. That analysis places no weight on the evidence of Mr Stavrakijev that he slipped on the landing, assumes incorrectly that Mr Stavrakijev was moving slowly at 3.6km per hour, and that after he fell Mr Stavrakijev’s body first struck the surface on the lowest or second lowest step, and takes no account of the further factors raised by Mr Waddell to which I have referred.

The steam chamber stairs

Dr Culvenor said the checker plate steps were safe to walk on and posed no slipping risk. He explained as the heel of the forward foot strikes the ground, it imparts a forward force decelerating the foot. If there is insufficient friction to decelerate the foot there is a loss of traction and an out-of-control slip occurs, which usually results in a fall on the buttocks or back. Relying on two studies to which he referred he said optimum friction levels for walking were in the range 0.25–0.55, and the coefficient of friction utilised in walking with a mid-length stride was in the area of 0.15. He said:

In the case of walking on the platform a coefficient of friction of the order of 0.1–0.2 is indicated as what would be needed. Long strides and fast movement in the main are not consistent with the activity nor is it what the plaintiff describes. He describes a pace of steady walking. It is a usage context most likely characterised by relatively steady motion generally speaking versus energetic acceleration.

Dr Culvenor performed a friction test on the landing using a pendulum instrument with a 76mm wide rubber slide. He performed the test at four different locations, first with the landing dry and dusty, and then with the landing wet. The coefficient of friction test results were an average of 0.57 when the landing was dry and 0.38 when the landing was wet. Dr Culvenor said:
Both these conditions will by some margin provide sufficient friction for safe walking in this environment.

Again, there are a number of other factors which require consideration. First are two factors already identified by Dr Culvenor, being the length of stride and speed of movement. The friction required for safe movement increases with speed and stride length. As I have already stated, Dr Culvenor was acting on the inaccurate assumption that Mr Stavrakijev was moving at the slow steady pace of 3.6km per hour. It appears he also assumed Mr Stavrakijev did not take a long stride onto the landing, though this is uncertain.

Mr Waddell said the friction required for safe movement increased with changes in speed and direction. This accords with common sense. Both experts agree it was likely Mr Stavrakijev was slowing as he stepped onto the landing to descend the stairs. At the same time, Mr Stavrakijev was turning 90 degrees to the right. Dr Culvenor agreed changes in speed and direction would create an incremental increase in the need for friction, though he said this would not come as a surprise to somebody walking to descend the stairs as Mr Stavrakijev was doing. Mr Waddell said that as a person is turning, something has to stop them slipping sideways. If a foot on the floor twists to create the turn, the available friction is reduced. The faster the person is moving the more friction is required. He said:

I should add that twisting — if the foot twists there are two types of friction, static and dynamic. Static is where two surfaces are in contact with each other and not moving across each other. The other is dynamic where one — where the two surfaces are in movement against each other. You usually get more friction in a static situation if two surfaces are still and it takes more to move them than if they’re already moving. If they’re already moving you get less friction available. That’s the dynamic friction aspect. And if a person’s foot twists, they lose their static friction and get into a dynamic situation which can result in an easier slip occurring.

He said the heavier a person is the higher their momentum, and the more difficult it will be for them to change direction.

Mr Waddell said the rubber slider of the pendulum instrument will bump across the raised sections of the checker plate surface, which could replicate what occurs with the heel strike of the forward foot, but will not measure the available coefficient of friction when the foot is flat on the checker plate surface. Dr Culvenor disagreed, and said the slider is sufficiently wide that it does not fall between the stipples, and when the foot is flat on the checker plate surface the stipples act to create a tread on the ground, similar to a tread on a shoe. Dr Culvenor did say in his report:

There is some caution about using the standard means of floor testing for profiled surfaces like this one but there is no better alternative in the standard. The values found are generally of the right order in my opinion.

Dr Culvenor agreed that if the platform were covered with stones or debris that might affect the friction available to a person stepping on the landing. He said he had not considered that possibility, and that if someone wanted him to consider such a situation ‘[He] would have liked to have known before and made more investigations’. That answer was surprising. In his report Dr Culvenor records that in his answers to interrogatories Mr Stavrakijev suggested the fall may be due to encountering moisture and debris. However, the fact remains Dr Culvenor did not test the coefficient of friction available on the landing in the presence of debris alone, or debris in combination with water. Mr Waddell said debris on the landing could increase the risk of a slip because it would usually disturb a person’s gait and could precipitate a slip if the foot rolled across it.

I have reached the following conclusions in relation to the test performed by Dr Culvenor and his conclusions:

(a) Dr Culvenor expressed caution about using the standard means of floor testing for profiled surfaces. I do not accept that the results of testing undertaken by Dr Culvenor accurately reflect the coefficient of friction experienced by a person walking on the checker plate surface of the landing. I accept there is some substance to the criticisms made by Mr Waddell of the use of the pendulum instrument to test for the coefficient of friction on the checker plate surface of the landing.

(b) Critically, Dr Culvenor did not test for the effect of debris on the landing and/or on the shoes of a person walking on the landing. It is common sense that the presence of debris is likely to affect the friction available to a person stepping on the landing, and as Mr Waddell said may affect the person’s gait.

(c) The friction required for Mr Stavrakijev to safely negotiate the landing was likely to be greater than assumed by Dr Culvenor because Mr Stavrakijev was walking faster than Dr Culvenor assumed, may have been using a longer stride than Dr Culvenor assumed, and was decelerating and turning.

For these reasons, I do not accept that Dr Culvenor’s evidence establishes that, in the circumstances prevailing at the time Mr Stavrakijev fell, the landing surface provided sufficient friction for him to safely negotiate the landing and the stairs.

The fall

Counsel for Ready Workforce cross-examined Mr Stavrakijev as follows:

Q:And it is your evidence, is it not, that you slipped when you put your foot on that platform?
A:Yes.
Q:So you hadn’t descended the stairs and you hadn’t engaged the first step at the time you fell?
A:(Through Interpreter) Yes, I was on the platform.

And later Mr Stavrakijev was asked:
Q:So you put your foot on the platform. Was it your first step onto the platform or your second step or your third step or what?
A:I can’t remember. It happened on the platform.
Q:Do you know which foot stepped? Was it your left or right?
A:I think the right, but I’m not sure.

It was put to Mr Stavrakijev that the position from which he slipped on the landing was more towards the centre than the front edge of the landing, and he said he could not remember.

Counsel for Holcim cross-examined Mr Stavrakijev on an affidavit he had sworn relating in part to the circumstances of the fall, certain answers to interrogatories which he gave and histories recorded in other documents to show inconsistency and establish the unreliability of Mr Stavrakijev’s account. In an affidavit sworn on 22 June 2015, Mr Stavrakijev said:

On 15 November 2011 I was walking down some stairs when I slipped and fell. I fell down a flight of approximately five stairs.

Mr Stavrakijev made similar statements in answers to interrogatories, and he said that he ‘fell from top of the steps’. Mr Stavrakijev was challenged on the basis that there was no suggestion in those statements that he slipped and fell on the platform, and he said the platform is part of the stairs, and that the platform and the stairs are ‘altogether, one thing’. Later Mr Stavrakijev was asked:
Q:What foot slipped at what part of the platform?
A:I don’t remember. It was a split second.
Q:You don’t even know what foot you took off from the platform surface with?
A:I don’t remember. I slipped. I slipped at the top.
Q:Do you know if your next foot caught the second step?
A:Don’t remember.
Q:So your second foot may well not have caught the second step at all?
A:I don’t remember. I slipped from the platform and ended up on the bottom of the stairs.
Q:Your second foot may not have caught the second step in the flight of steps at all?
A:I can’t guess.
Q:You can’t guess?
A:I fell.
Q:Did any foot hit the third step on the step - the flight of steps?
A:I don’t know. I slipped on the platform.
Q:So you cannot say to this jury whether either of your feet hit either the second step or the third step on the flight of steps down from the platform. Is that correct?
A:All I can remember is my feet were on the ground.

Mr Stavrakijev said that he turned right on the platform to go down the stairs, but he could not be precise about where on the platform he did this.

In examination in chief Mr Cavka was asked:

Q:Now from what you saw did you form any impression as to what had occurred?
A:He missed a step on the way down.

When in cross-examination Mr Cavka was asked in more detail about the fall, it became clear his ‘impression’ was not based on anything he observed. In cross-examination the following exchange occurred:
Q:And that is, you did give some evidence that he missed a step?
A:My assumption.

Q:       That’s it, yes, that’s it?
A:       Correct.
Q:       Not from what you observed?
A:       No.
Q:       But you know he’s fallen?
A:       Yes.
Q:And that’s your best guest or assumption about what might’ve caused him to fall?
A:Correct.

Mr Cavka said he did not see Mr Stavrakijev turning on the platform to go down the stairs, he did not see where Mr Stavrakijev fell from, and when he first caught sight of Mr Stavrakijev he was on his way down. Mr Cavka agreed the most he saw was a vision of a body moving down the stairs, which was just a fleeting glance, that it happened very quickly, and that it was difficult for him to say anything about the way in which the fall occurred or where it started.

Mr Cavka’s ‘impression’ or ‘assumption’ that Mr Stavrakijev fell because he missed a step was not based on anything he observed and is evidence without weight. There is nothing in Mr Cavka’s observations which is inconsistent with the evidence of Mr Stavrakijev that he slipped on the platform and fell down the stairs.

On the morning after the fall Mr Stavrakijev told Ms Jessup that he slipped. In the worksheet, Mr Keogh recorded that the cleaning process left the stairs wet and slippery and that a root cause of the fall was ‘slippery floors and walkways’. The clinical note of the general practitioner Mr Stavrakijev saw on the day after the fall includes the history that Mr Stavrakijev slipped on a step and fell backwards onto his back.

I conclude that as he stepped onto the landing to turn and descend the stairs Mr Stavrakijev slipped and fell as he described.

Were the steam chamber stairs ‘slippery’?

Mr Stavrakijev agreed that in the 14 months he worked at Holcim prior to the fall he walked up and down the steam chamber stairs about 80 times a day. He said until 15 November 2011 he had never slipped, tripped or fallen on the stairs. He was asked:

And I gather when you would go up and down those stairs you’d be very careful because of the presence of water and all the debris?---(Through Interpreter) You’re always trying to be careful but, you know, sometimes it happens.
Sometimes what happens?---You slip, fall, accidents.

Mr Rutter described the condition of the steam chamber stairs at 8.30 am as, ‘wet, slippery, rubble.’

In the brief period he had worked at Holcim before the fall Mr Keogh formed the view the stairs were always wet and were a slip hazard. In the worksheet he prepared the day after the fall he recommended grit toe plates be installed immediately, and that the checker plate landing and steps be replaced with tread mesh. He said this would allow water and debris to fall through the mesh, rather than accumulate on the service on the landing and steps. Mr Keogh said he thought the steam chamber stairs were an accident waiting to happen.

Mr Pirie, Mr Jones and Mr Cavka gave evidence that they could not recall any incidents where a worker slipped on the stairs occurring before, or in Mr Cavka’s case, after Mr Stavrakijev fell. However, in the worksheet assessment completed by them on 9 December 2011 Mr Craig and Mr Keogh record a history of ‘slips and trips on steps’. No further detail was given. The entry is expressed in the plural, which indicates at least one other incident in addition to Mr Stavrakijev’s fall. Similarly, in the risk assessment worksheet completed by Mr Cavka and Mr Keogh on 22 February 2012 they record ‘trips and falls. Near miss struck against.’ No incident reports or similar documents were produced detailing previous slips, trips or falls on the steam chamber stairs, however, relevant documents had been inadvertently destroyed by Holcim. Given the entries recorded in the risk assessment worksheets it is likely there had been one or more other incidents on the stairs.

Mr Jones conceded checker plate was not suitable for construction of stairs that were often wet, and said a decision had been made to change the steam chamber stairs to tread mesh because of water and debris. He agreed workers transferring debris and water on their shoes from the steam chambers to the stairs constituted a safety risk, and that if the steps were wet and had debris on them it would constitute a slip and fall risk. He said the appropriate response to that risk was to replace the stairs with tread mesh, which he agreed was not overly expensive.

Mr Pirie said he was uncertain why checker plate was selected for the stairs, but that it was a perfectly acceptable material to use. He agreed that one of the advantages of tread mesh was that water and debris can fall through, and that tread mesh is a better option than checker plate, but he did not concede checker plate was inappropriate. He said checker plate was a non-slip plate, but was not as good as tread mesh. He agreed tread mesh was less likely than checker plate to be slippery when exposed to water, but said checker plate was still not slippery with just water. He was asked:

So does it depend on other circumstances, apart from the amount of water?---Sure. Sure. If you, ah - if you put a coating of, ah - of dirt or dust or mud on a - on a checker plate stair, then - then - and it's higher than the, ah - the level of the protrusions, then - then that would certainly be - I could see how that would be slippery.

There were three changes to the system in the RORO plant which I conclude were relevant to Mr Stavrakijev’s fall. Two of these changes occurred after Mr Pirie left the plant in 2008. First, less attention was paid to housekeeping. The steam chamber walkways were no longer cleaned each Saturday, and were only cleaned infrequently and irregularly. As a consequence, the steam chamber walkways were littered with rubble and were most often wet because the drains were blocked. Water and debris was transferred from the steam chambers onto the platform of the steam chamber stairs. Second, there was more water on the walkway area because of a change to the moulding panel guarding system and because that area was regularly hosed. This meant there was a far greater opportunity for water on the walkway and around the moulding plant to be tracked on workers’ shoes onto the steam chamber stairs. Third, the automated system for transfer of the filled moulds onto the traverse trolley fell into disrepair. The fact that this task had to be performed manually increased the time pressure on the offsider to complete the allocated tasks, and significantly increased the number of times the offsider had to go up and down the stairs in the course of their work.

I conclude that water and debris on the platform reduced the friction available on the checker plate surface, and the speed of work and the need to change direction when moving from the platform to descend the stairs, increased the need for friction. In combination with the frequency of use of the stairs those matters resulted in there being a risk of slipping on the platform when descending the stairs.

The three points of contact policy: was Mr Stavrakijev holding the handrail?

Holcim’s policy was that three points of contact should be maintained on the stairs. Mr Stavrakijev submitted three points of contact could only be maintained with each hand on a handrail, and one foot on a step, so that each set of stairs required two handrails. Mr Stavrakijev alleged Holcim was negligent in failing to install a handrail on both sides of the steam chamber stairs. The defendants submitted the policy was satisfied by having each foot on a step and one hand on a handrail, and that Mr Stavrakijev was guilty of contributory negligence because he failed to hold the hand rail while descending the steam chamber stairs.

Mr Stavrakijev said he could not recall being instructed to maintain three points of contact, but that he knew that if you were going down stairs, you had to hold on to the handrail. He said the fall happened in a split second. He was asked:

You have no recollection of using the handrail to secure yourself when you’re on the flight of steps?---Look, like I said, I always use the handrail. At that time, I don’t know if I got to it.

As Mr Stavrakijev stepped onto the platform, the handrail at the back of the platform would have been on his left, and the handrail running down the left hand side of the platform and stairs was in front of him. Mr Stavrakijev said as he stepped onto the platform and turned to his right to descend he slipped and fell. I am uncertain whether, at the time he slipped, Mr Stavrakijev had reached a position where he was able to reach the handrail on the left hand side of the stairs with his left hand easily. I am unable to say on the evidence whether or not Mr Stavrakijev was holding the handrail at the time he fell.

The witnesses disagreed as to whether a handrail was needed on each side of the stairs to allow a worker to comply with the policy.

In my view the three points of contact policy or guideline was an appropriate direction to employees of the need to take care when using stairs or ladders, and to use available handrails. I do not interpret the policy as mandating that two handrails be available in every circumstance, and I do not consider there was a lack of reasonable care by Holcim in failing to provide a second handrail on the steam chamber stairs. I doubt whether the lack of a second handrail was causative of the fall and Mr Stavrakijev’s injuries.

Breach of duty

Ready Workforce and Holcim each owed a duty to take reasonable care to provide Mr Stavrakijev with a safe place of work, and a safe system of work. Holcim accepted that its duty as host employer was akin to that of an employer. In addition Holcim, owed a duty as occupier of the Laverton premises. The scope of an occupier’s duty and the matters to be taken into account in determining whether it has been discharged are set out in s 14B of the Wrongs Act 1958 (Vic).

Before the fall Mr Keogh’s view was that as a consequence of the RORO systems the steam chamber stairs were wet and slippery, and the risk of slipping was increased by the frequency of use of the stairs. Mr Keogh said checker plate does not allow water or debris to fall through, so that it builds up. He said his recollection was the steam chamber stairs were the only checker plate stairs in the whole factory.

Mr Jones said tread mesh is a more appropriate material than checker plate for platforms and stairs that are wet. He said there had been a plan to change all the stairs in RORO to tread mesh, because water and debris would fall through tread mesh, and the steam chamber stairs were the only ones that had not been replaced. He said workers transferring water or debris on their boots from the steam chamber to the stairs was a slip and fall risk. The following exchange took place during the cross-examination of Mr Jones:

Something that would have been pretty easy to do, to make the stairs safer would have been put on nosing strips. You're familiar with what I mean by those?---Yes, I'm in the field, yes.
They would have redressed the risk of the checker plate stairs when wet being a slip risk?---Quite possibly, unless they got oil on them and became slippery themselves which we actually considered installing those but we were worried about the - the tread nosings themselves from becoming increasing build-up onto those stairs and making it more unsafe than it previously was.
What sort of build-up were you worried about?---Sorry?
What sort of build-up were you worried about?---Dirt - dirt, oil.
Where was that coming from?---From boots.
Where had those people been?---Throughout the facility, sir.
So it was pretty commonplace that people would track around dirt, oil, concrete chips on their boots?---Yes, it was a dirty - it's a concrete facility so it's a dirty workplace.
When you say we considered installing the toeplates and nosing, who is we?---Myself and the operations manager at the time which I can't recall who that was.

Mr Jones’ evidence relates to the period he was Occupational Health and Safety Officer at Holcim’s plant between 2008 and October 2011, and predates Mr Stavrakijev’s fall.

The hazard inspections completed by Mr Keogh after the fall indicate other slip or trip incidents occurred on the steam chamber stairs.

The first risk assessment in relation to the stairs was performed by Mr Keogh and Mr Craig in early December 2011. They rated the risk of slipping on the stairs because of the constantly wet environment as medium, both in terms of likelihood and consequence, and recommended the checker plate be replaced with tread mesh. In February 2012 Mr Cavka and Mr Keogh performed a risk assessment in which they recommended re-introduction of the automated system for transferring the moulds into the traverse trolley. Mr Keogh and Mr Cavka assessed the risk in relation to ‘walking up and down wet stairs 1000 steps per day’ as high both in terms of likelihood and consequence. The facts on which the December 2011 and February 2012 risk assessments were based were known to Holcim before Mr Stavrakijev’s fall.

In November 2011 there was a foreseeable risk that a worker would slip and fall on the steam chamber stairs, which was known to Holcim. Matters relevant to the likelihood of a worker slipping include the presence of debris and water on the stairs, the frequency of use of the stairs, and the speed of work. The likelihood that a worker would slip and suffer injury was low on any single occasion the stairs were used. However, the work system required that the offsider go up and down the stairs many times each day and the likelihood of a slip injury must be viewed in that context. In my view, the likelihood of a worker slipping and suffering injury was not insignificant. It was foreseeable that a worker who slipped and fell on the stairs might suffer serious musculoskeletal injury.

Precautions were available to eliminate or reduce the risk of slipping and falling down the stairs. Had the stairs been changed from checker plate to tread mesh, as both Mr Keogh and Mr Jones thought should occur, water and debris would not have accumulated on the platform, and Mr Stavrakijev is unlikely to have slipped. Improved housekeeping would have greatly reduced water from accumulating on the walkway and in the steam chambers, and being transferred to the steam chamber stairs. Regular cleaning of the steam chamber walkways would have reduced the transfer of debris to the stairs. Maintaining and re-introducing the automated system for transferring moulds onto the traverse trolley would have very significantly reduced the frequency of use of the stairs, and the speed at which the offsider had to work. Had Holcim taken reasonable care to devise and enforce an appropriate system of housekeeping, and to re-introduce the automated traverse trolley system, it is unlikely Mr Stavrakijev would have slipped and fallen. I conclude a host employer or occupier in Holcim’s position, acting reasonably, would have taken each precaution to which I have referred.

Breach and causation are made out against Holcim.

The duty owed by Ready Workforce to Mr Stavrakijev was non-delegable, and it was liable to him for the failure of Holcim to provide a safe place and system of work.[1]
[1]Kondis v State Transport Authority (formerly Victorian Railways Board) (1984) 154 CLR 672.

Further, Ready Workforce attended the Laverton factory and had contact with Holcim representatives frequently, and conducted risk assessments of various processes at the factory. Ready Workforce submitted this demonstrated it acted as a reasonable employer and reasonableness did not require it to discover every risk which its employees may encounter at a large workplace such as Holcim’s Laverton plant. In respect of the risk encountered by Mr Stavrakijev, I disagree. Ready Workforce had the opportunity to observe the steam chamber stairs, the state of housekeeping and the wet environment in RORO, the speed at which the offsider had to work, and the frequency of use of the stairs, which resulted in there being a foreseeable risk of slipping and suffering injury. Whilst control of the workplace and the work systems at all times remained with Holcim, Ready Workforce had the opportunity to interact with Holcim in relation to workplace risk and to make suggestions and recommendations informally and as part of a formal risk assessment process. I conclude Ready Workforce breached its duty to Mr Stavrakijev by failing to recommend that the precautions to which I have referred be taken to reduce or eliminate the risk of a slip resulting in injury on the steam chamber stairs.

Contributory negligence

The defendants allege contributory negligence, first, because Mr Stavrakijev knew there was water and debris on the platform and was rushing; second, Mr Stavrakijev failed to hold the handrail; and third, he failed to clean the platform or to complain about the state of the steam chamber stairs.

I conclude that immediately before he fell Mr Stavrakijev was walking quickly. The pace at which Mr Stavrakijev was moving was a product of Holcim’s system of work, which I have concluded was unsafe. I reject the allegation that Mr Stavrakijev was guilty of contributory negligence because he was rushing when he fell.

Mr Stavrakijev was aware that there was water and debris on the landing, and that he should use the handrail when descending the steam chamber stairs. Failure to use an accessible handrail would, in those circumstances, lead to a finding of contributory negligence. However, I have been unable to reach a conclusion as to whether Mr Stavrakijev was holding the handrail when he slipped and fell, or whether he had reached a position where he was readily able to take hold of the handrail. Accordingly this allegation fails.

The risk posed by the steam chamber stairs related to the presence of water and debris, the frequency of use of the stairs and the speed at which the offsider needed to work. There was almost always water and debris on the stairs because of poor housekeeping in the steam chambers, condensation from the steam chambers, the wash down system and the general nature of the RORO plant. The Holcim system provided for cleaning of the RORO plant at the end of each shift. The offsider was not directed to clean the steam chamber stairs periodically during each shift. Given the work requirements, there was no reasonable opportunity for him to do so. I reject the allegation that Mr Stavrakijev was guilty of contributory negligence because he did not clean the stairs.

Mr Stavrakijev was required to work in the circumstances and conditions created by the systems devised and implemented by Holcim. Risk assessments performed after the fall by Mr Keogh and others identified various risks associated with Holcim’s systems, and made recommendations to reduce or eliminate risks. The recommendation to re-introduce the automated traverse trolley system was not implemented for some years. The stairs have not yet been changed to tread mesh. Whilst he was aware of the need to be careful, Mr Stavrakijev had not previously slipped on the stairs. There was no other reason for him to complain about or report the state of the steam chamber stairs than the wet and dirty steam chambers, the wet walkway or overspray of oil at the demoulding bench. In my view reasonableness did not require that Mr Stavrakijev report that there was almost always water and debris on the stairs. Further, I would not infer that, had Mr Stavrakijev reported the state of the stairs, it would have resulted in Holcim implementing changes to the stairs or its work systems to reduce the risk of slipping on the stairs.

The defendants have not established there was contributory negligence by Mr Stavrakijev which was a cause of the fall and his injuries.

Contribution

Section 24(2) of the Wrongs Act 1958 (Vic) requires a determination as to what is ‘just and equitable’ as between the defendants. In Zealley v Liquorland (Aust) Pty Ltd & Anor,[2] J Forrest J summarised certain principles stated by Beach J in Papadopoulos v MC Labour Hire Services Pty Ltd (No 4):[3]

In determining what is just and equitable contribution under the statutory provision it is established that there are two relevant considerations:
(a) the degree to which each of the parties has departed from the standard of conduct required of them; and
(b) the relative causal potency of each of the defendant’s acts in relation to the injuries sustained…
It is also accepted that in analysing the relevant factors the Court must eschew the application of a formulaically mathematical approach. As Beach J put it in Papadopoulos:
Questions of apportionment involve questions of balance and relative emphasis. They involve the weighing of different considerations. Value judgments upon which reasonable minds might differ are involved. Some of these do not readily admit of articulation.

[2][2015] VSC 62 (5 March 2015).

[3](2009) 24 VR 665 (Papadopoulos).

In Papadopoulos,[4] Beach J referred with approval to the following questions identified in Hoad v Peel Valley Exporters Pty Ltd[5] by Harrison J as being relevant when considering apportionment of contribution between an employer such as Ready Workforce and a host employer and occupier such as Holcim:
[4]Ibid.
[5][2008] NSWSC 981 (29 September 2008).

1.What were the respective degrees of access to the premises as between the employer and the occupier and what was the employer’s opportunity to inspect them?
2.What were the employer and occupier’s respective states of knowledge of the hazard?
3.Was the employee located on the occupier’s premises for a short time or indefinitely or was she moved around?
4.Did the employer have an ability independently of the occupier to avert the hazard by itself or only with the consent or approval of, or in consultation with, the occupier, sometimes called the employers [sic] capacity to “shield” the employee?
5.How long had the relevant hazard been in existence?
6.Had any prior injury been caused by the hazard to anyone else apart from the employee?
7.Did the relevant hazardous conditions at the occupier’s premises vary from day to day or were they constant?
8.Was the employee injured in the course of her normal duties or were those duties relevantly different to what was usual for that employee?
9.Was there any dissimilarity in the employee’s ability to draw the hazard to the attention of the occupier as compared to the employer?
10.Who was responsible for the employee’s training?
11.Was the non-delegable duty of care owed by the employer one that could be discharged in the circumstances by doing nothing at all, such as (arguably) a casual and unforeseeable act of negligence on the part of the occupier?
12.What were the respective roles played by the employer and the occupier in devising, instituting and maintaining the system of work that was found to be unsafe?
13.Who controlled the premises?
14.Who supplied any plant and equipment to the employee required for use in carrying out the work?

Mr Stavrakijev worked exclusively for Holcim in the RORO plant for over a year before the fall. Ready Workforce attended the Laverton factory regularly and conducted risk assessments periodically. The evidence of Mr Keogh and Mr Jones indicates Holcim was aware of the risk of slipping posed by water and debris on the stairs. There is nothing to indicate Ready Workforce was aware of the risk. Ready Workforce could only avert the risk with consent or approval by Holcim. Given that it took approximately two years for Holcim to respond to the recommendation of Mr Keogh and Mr Cavka to reintroduce the automated traverse trolley system, and that the recommendation to replace the checker plate stairs with tread mesh has never been actioned by Holcim, there is doubt any recommendation made by Ready Workforce would have been actioned by Holcim. The hazard to which Mr Stavrakijev was exposed varied from time to time, but had been in existence for a considerable period. Holcim controlled the premises, the system of work, and the plant and equipment.

Ready workforce submitted in those circumstances its contribution should be between 0 per cent and 15 per cent. Holcim submitted Ready Workforce should be responsible for 30 per cent. The negligence of Holcim was more prolonged and significant, and of greater causal potency than that of Ready Workforce. In my view an appropriate apportionment is 80 per cent to Holcim and 20 per cent to Ready Workforce.

Damages
Background

Mr Stavrakijev was born in Melbourne in 1974 and was 43 years old at the time of trial. He moved to Macedonia with his family when he was 6 and returned to Australia when he was 20 years old. Mr Stavrakijev learnt to speak English after returning to Australia. He lives with Mary Stojanovska and their daughters, Monika, who is aged 19, and Alana, aged 9.

Prior to working for Holcim Mr Stavrakijev worked for a company which powder coated aluminium for sixteen years. In the years 2007 to 2010 he earned between $37,000 and $38,000 gross per year. He said his life was happy, he enjoyed holidays, socialising with friends, spending time with his family and fishing. In September 2010 Mr Stavrakijev began employment with Ready Workforce at Holcim’s factory. He said he was employed as a concrete worker/labourer, working 60 hours a week. In the 2011 financial year his gross earnings increased to $79,994. He said he changed his job to earn more money.

History of injury and treatment

Mr Stavrakijev said when he slipped and fell on the steam chamber stairs he landed mainly on the right side of his body, on his lower back, leg and shoulder. He finished work early that day, and had pain in his lower back, right side and ankle. Photographs taken that night show gross bruising to his right buttock and some marks to the right side of his upper back.

The day after the fall Mr Stavrakijev attended with a general practitioner at Medibank Health Solutions. He said he told the doctor he had pain in the whole of his right side, including his right shoulder, back and right leg. The notes of the clinic record complaints in relation to Mr Stavrakijev’s back, bruising to the right buttock and tenderness of the right Achilles tendon.

Mr Stavrakijev commenced physiotherapy treatment. He said he continued to limp and his right ankle was very painful when walking, and he continued to have problems with his lower back and right shoulder. He said an x-ray was taken of his back on 22 November 2011 because he had pain. He remained at work on light duties.

In January 2012 Mr Stavrakijev was referred to orthopaedic surgeon, Associate Professor Goldwasser, who diagnosed a partial thickness tear of the right Achilles tendon with associated tendinosis, and advised conservative treatment. Mr Stavrakijev did not improve, and surgery was performed by Associate Professor Goldwasser on 19 March 2012.

Mr Stavrakijev made a good recovery following the Achilles tendon surgery. He said he continues to experience some stiffness in his right Achilles tendon in the mornings and swelling when the weather is hot or if he has been standing for a long time, and has difficulty going up and down stairs. In early June 2012 Mr Stavrakijev returned to part-time light duties work. By late August he reported to Associate Professor Goldwasser that he was working four days a week, three hours a day, doing office duties, and had been offered full-time work closer to home which he said he could not manage because of problems with his right shoulder and back. Mr Stavrakijev said that part-time work finished in September 2012 because no further light work was provided for him.

In May 2012 Mr Stavrakijev had started to attend with general practitioner, Dr Dzartov for treatment of his work injuries. In August he was referred to a second orthopaedic surgeon, Mr Owen, for review of his right shoulder and was advised to have an injection into the shoulder joint. Later he was referred to a third orthopaedic surgeon, Mr Holland, whom he first saw on 24 June 2013. Mr Holland diagnosed a subluxating right bicep tendon, a partial tear of the supraspinatus tendon with some inflammation, and adhesive capsulitis. He referred Mr Stavrakijev for physiotherapy and requested a hydrodilatation, which he described as a guided injection into the shoulder joint with saline and cortisone. When Mr Stavrakijev returned three months after the hydrodilatation injection Mr Holland recommended surgery which involved reattachment of the biceps tendon within its groove, a capsular release and manipulation of the shoulder. Mr Holland arranged for a second hydrodilatation to be performed in early April 2014 because the shoulder was becoming stiff. Mr Stavrakijev made a good recovery from shoulder surgery, and was last reviewed by Mr Holland on 10 May 2016. He said he continues to suffer some restriction with lifting and pulling with his right arm and that his right shoulder feels tight.

In 2013 Mr Stavrakijev started to experience some emotional difficulties related to the fall and his injuries. Dr Dzartov referred him to psychologist, Dr Berberovic, and in June 2013 commenced him on the antidepressant Avanza. Mr Stavrakijev described symptoms including flashbacks, nightmares, not socialising, feeling depressed and lacking motivation. He said because of his depression he no longer sleeps with his wife, or interacts with his daughters as he once did, and that he feels embarrassment and shame because he is not working. Since mid-2013 he has continued to attend with Dr Berberovic and to take antidepressant medication prescribed by Dr Dzartov.

Mr Stavrakijev said he gained considerable weight following the fall, much of which he has been able to lose with the assistance of a dietician.

Mr Stavrakijev complained of continuing pain in the low back, mainly on the left side, with pain into his left thigh and calf, and right hip. He said his sitting and standing is restricted, and that he is woken regularly by back pain. He takes Mobic or Panadol daily for the pain.

Mr Stavrakijev said he would like to go back to work, and had looked for light duties work with the help of his wife, but did not remember what the jobs were. He said both his Achilles tendon and right shoulder cause him some restrictions, but would not prevent him from working, but he did not think he could work now because of his lower back and his depressive state. He said he had no computer skills, and had difficulty reading and writing in English.

Ms Stojanovska said Mr Stavrakijev’s ankle is stiff in the morning and he has restriction when standing for long periods, because of his right shoulder he struggles lifting heavy weights or reaching to high cupboards, and that his back causes him the most pain. She described him as having little social activity, and said that he is withdrawn and does not engage. She described Mr Stavrakijev as being like a prisoner in his own house. She tried to encourage him by doing job applications for him in 2016, but did not continue because his depression and anxiety became worse over time. She said in 2016 he was picking his daughter up from school daily.

Ms Stojanovska said she works as an office manager and her annual income was generally over $80,000 gross, and most recently was $95,000 gross.

Treating doctors
Dr Phang

Mr Stavrakijev was treated at Dr Phang’s clinic from 16 November 2011 until 24 May 2012. Dr Phang said the early focus of treatment was the right buttock and heel, and the right shoulder developed a little later. Clinical notes of Dr Phang’s practice indicate developing right shoulder ache and low back pain associated with the use of crutches in the period following right Achilles surgery performed by Associate Professor Goldwasser.

Dr Dzartov

Dr Dzartov said in the fall Mr Stavrakijev suffered a partial tear to the right Achilles tendon, chronic low back pain caused by aggravation of pre-existing degenerative changes, a right shoulder injury, post-traumatic stress disorder, adjustment disorder with major depression, soft tissue injury to the right hip and chronic pain syndrome. He said that Mr Stavrakijev complained of feeling helpless, hopeless, worthless and guilty, that he suffered flashbacks most mornings and had suicidal thoughts. He said in 2013 Mr Stavrakijev was feeling disappointed because he used to work 60 hours a week and provided for his family, and could no longer do this. He said Mr Stavrakijev responded well when he was placed on Avanza, and was sleeping better, but he experienced some weight gain as a side effect. He referred Mr Stavrakijev to a psychiatrist, but he did not attend because, Dr Dzartov said, there were some financial issues at the time. He said Medicare would pay for one visit to a psychiatrist a year, but otherwise most psychiatrists charge $350 for the first consultation.

Dr Dzartov said Mr Stavrakijev had made a very good recovery, particularly with his right Achilles tendon, right shoulder injury and post-traumatic stress disorder symptoms. He said Mr Stavrakijev continued to complain of ongoing pain in his low back radiating to the left leg, had some pain in his right shoulder at night and when elevating his arm over shoulder level, and reported pain and swelling in his ankle if he stood for too long. Dr Dzartov said Mr Stavrakijev’s back pain was intermittent. He agreed that in 2016 his opinion was Mr Stavrakijev had capacity for full-time manual work with some restrictions, but there had since been a little bit of deterioration when he stopped physiotherapy. He said the improvement in Mr Stavrakijev’s mental state continued with the antidepressant medication and psychological treatment. He said he left Mr Stavrakijev on 30mg of Avanza because he was doing well and improving. Dr Dzartov said that he spoke to Mr Stavrakijev about going to a private psychiatrist and about increasing his antidepressant medication, and he was not keen to do either. He said at one point Mr Stavrakijev looked for light work, but his English was limited, he had WorkCover issues, he was unable to do a full-time or normal job, and he had difficulty finding a job, which was disappointing for him and probably caused a relapse in his mood. He said he thought Mr Stavrakijev could do some light duty work probably starting part-time.

Dr Berberovic

Mr Stavrakijev started psychological treatment with Dr Berberovic in 2013. She took a history from Mr Stavrakijev of a very positive life before the fall where he worked hard, 60 hours a week, provided for his family and paid the mortgage, and had a happy family and social life. She said the injuries and his inability to work had caused Mr Stavrakijev to suffer a loss of identity.

Dr Berberovic diagnosed Mr Stavrakijev as currently suffering major depressive disorder and anxiety disorder. She said his symptoms had become entrenched, and because he did not see things will change, his hopelessness and helplessness had become greater. He continued to suffer post-traumatic stress disorder, and found it difficult to discuss the traumatic event or anything related to it. She considered Mr Stavrakijev as being not ready to return to work, and said then that in the long run the chance of him returning to work is slim because of his chronic injuries, limited command of English and limited education.

Dr Berberovic said she had seen Mr Stavrakijev 66 times in total over a period of nearly five years. She described very limited improvement from treatment.

Dr Berberovic agreed that in late 2013 her opinion was that the option of returning to work was high, and would be dependent on the pace of Mr Stavrakijev’s physical and mental health recovery. She said with treatment since, Mr Stavrakijev was only ‘a tiny bit closer’ to work, but that left untreated he would have been in a much worse condition. One improvement Dr Berberovic noted was a reduction in flashback symptoms from 10 out of 10 to 8 out of 10 in intensity.

Associate Professor Goldwasser

Associate Professor Goldwasser described the surgery he performed on Mr Stavrakijev’s right Achilles tendon on 19 March 2012 following which Mr Stavrakijev’s leg was put in a cast, and he was unable to weight bear for an extended period. By late May 2012 Associate Professor Goldwasser noted Mr Stavrakijev has problems with back pain and right shoulder pain which the physiotherapist had reported were related to his altered gait pattern following surgery. He found by August 2012 that Mr Stavrakijev’s ankle had improved and, although not perfect should not stop him doing full-time office work where he did not have to use stairs frequently and was allowed to change posture. His final review was March 2013 when he found there was good progress with the Achilles tendon, with residual mild discomfort at times and thickening in the area of the repair. He again noted complaints of right shoulder and low back pain. He said when he last saw Mr Stavrakijev he did not think he was fit to return to his pre-injury work. The opinions of Mr Simm and Dr Clayton Thomas following examinations in mid-2016, and the description of current symptoms in relation to the right ankle given by Mr Stavrakijev, were put to Associate Professor Goldwasser and he agreed, on the basis of that material, that in terms of his right ankle Mr Stavrakijev would have been able to return to his pre-injury work at some time after his last examination in March 2013.

Mr Holland

Mr Holland said he last saw Mr Stavrakijev in May 2016 and at that time his shoulder was comfortable, not troubling him at night, and he could manage with his arm above shoulder height. Mr Holland said it was hard to know how Mr Stavrakijev would manage any possible work opportunities that were available to him, but he thought duties requiring repetitive use of his arm above shoulder height may cause Mr Stavrakijev some difficulties. He said the current complaints made by Mr Stavrakijev in relation to his right shoulder were expected. He said the most important thing was that any return to work was graduated so that he could report if any activities were troubling his shoulder. He thought Mr Stavrakijev could cope with retail work, such as handling spare parts, provided he did not have to work with his arm above shoulder height on a regular basis, and there would be a lifting weight restriction which he suggested should be five kilograms.

Mr Dooley

In August 2014 Mr Stavrakijev attended with orthopaedic surgeon Mr Dooley for review of his low back condition. Mr Dooley found moderate restriction of lumbar spine motion and no signs of nerve irritation. He concluded there was no evidence of major disc prolapse or nerve root entrapment, and no indication for surgery. He advised it was important that Mr Stavrakijev remain active and undertake low impact exercise.

Medico-legal doctors

Evidence was given by physician Dr Blomberry, occupational physician Dr Slesenger, and consultant in rehabilitation and pain medicine Dr Thomas. Medico-legal reports of orthopaedic surgeons Mr Simm and Mr Barmare, and occupational physician Dr Fish, were tendered. There was little controversy among the doctors as to diagnosis. Where there was any difference of opinion in relation to the right Achilles tendon and the right shoulder, I prefer the opinions of Associate Professor Goldwasser and Mr Holland respectively. Holcim challenged Mr Stavrakijev on the basis he did not suffer injury to his right shoulder or low back in the fall. The evidence did suggest Mr Stavrakijev suffered symptoms in the right shoulder and low back when he was non-ambulant and on crutches for an extended period following the right Achilles surgery. No cause other than the fall and the period of recovery following Achilles surgery was identified for the right shoulder and low back condition. In the circumstances, controversy as to causation of those conditions amounted to nothing.

Right Achilles

I conclude that in the fall Mr Stavrakijev suffered injury to his right Achilles tendon, described by Associate Professor Goldwasser as an aggravation of pre-existing degenerative changes with an intrasubstance tear. I conclude Mr Stavrakijev recovered well following surgery and that he has been left with mild symptoms, including some stiffness and swelling in the mornings and after standing for extended periods.

Right shoulder

I conclude when he fell Mr Stavrakijev suffered injury to his right shoulder which was further aggravated when he was non-ambulant and on crutches following surgery of the right Achilles, and that the injury is as described by Mr Holland, being subluxation of the biceps tendon, degenerative partial thickness tear of the supraspinatus and adhesive capsulitis. I conclude Mr Stavrakijev made a good recovery following surgery and continues to suffer mild symptoms with some restriction on lifting and pulling with the right arm, and use of the arm above shoulder height.

Low back

Dr Thomas said in terms of pathology the underlying structure of Mr Stavrakijev’s back was quite sound, and he was probably suffering facet joint pain. Mr Simm said the MRI of Mr Stavrakijev’s spine was essentially normal and that he was suffering non-specific mechanical lumbar pain. Dr Blomberry and Dr Slesenger both thought Mr Stavrakijev suffered aggravation of previously asymptomatic degenerative changes, and Dr Fish diagnosed a persistent soft tissue injury.

Mr Barmare’s diagnosis of L5/S1 lumbar canal and left sided foraminal stenosis was not supported by radiological findings or the opinions of other doctors. Dr Blomberry was alone in the view that Mr Stavrakijev’s pain was being contributed to by a pain syndrome involving sensitisation of pain pathways. I do not accept either opinion.

I conclude that in the fall Mr Stavrakijev suffered an aggravation to mild degenerative changes affecting his lumbar spine, and further aggravation when he was non-ambulant and on crutches following the right Achilles surgery. I conclude the injury results in Mr Stavrakijev suffering intermittent pain in the low back and some referred symptoms into the left leg, and causes some functional restriction with sitting, standing and lifting.

Dr Thomas said from a physical perspective Mr Stavrakijev was unable to perform unrestricted work, but could work full-time with restrictions. He said the compromise in function of the right achilles, right shoulder and low back meant care would be needed to select a suitable job for Mr Stavrakijev; it was a matter of testing how he responded to work, and the level of restriction may need adjustment. Dr Thomas said, taking account of other factors such as Mr Stavrakijev’s non-English speaking background, history of labouring work his whole life, and lack of IT skills, in the real world Mr Stavrakijev’s employability was substantially limited compared to before the injury. He said that it does not mean Mr Stavrakijev cannot successfully return to work, but he will need to be aware of his restrictions over the long-term, and that he has to start somewhere. I accept the opinion of Dr Thomas.

Psychiatric injury

Evidence was given by psychiatrists Dr Adlard, Dr Paoletti and Associate Professor Mendelson, and the reports of Dr Epstein and Dr Stern were tendered.

There was a general consensus that Mr Stavrakijev suffered a depressive disorder in response to the physical injuries and restrictions caused by the fall, and his changed circumstances including loss of employment. Dr Adlard diagnosed major depressive disorder, Dr Paoletti unspecified depressive and anxiety disorders, Dr Epstein, Dr Stern and Associate Professor Mendelson an adjustment disorder with mixed anxiety and depressed mood. One explanation for the difference in diagnosis is that Dr Adlard’s assessment is the most recent in time, and might reflect a worsening of Mr Stavrakijev’s psychiatric condition. I note Dr Adlard’s opinion is relatively consistent with that of treating psychologist Dr Berberovic. On the other hand I note Dr Dzartov’s opinion that Mr Stavrakijev’s mental health had improved with antidepressant medication and psychological treatment. Mr Stavrakijev has been reluctant to increase to a more therapeutic dose of antidepressant, and to attend a treating psychiatrist for review. Mr Stavrakijev’s evidence that his psychological condition was becoming worse is at odds with his reluctance to access additional treatments, and with his evidence that with the assistance of a dietitian he had successfully lost weight which he had gained he said in response to depression. The strength of Dr Berberovic’s evidence in support of Mr Stavrakijev reflected the supportive role she filled in his care. I felt her opinion lacked a degree of objectivity and independence. To my observation Mr Stavrakijev was not as severely affected by psychological symptoms as Dr Berberovic, Dr Adlard and Dr Paoletti thought, though I accept there are limits to the utility of observation during trial when judging the severity of a psychiatric condition. Dr Adlard and Dr Paoletti both considered Mr Stavrakijev’s medication should be increased and adjusted, he should attend with a psychiatrist, and this may improve his condition. Dr Dzartov agreed. Dr Mendelson was alone in his view that Mr Stavrakijev is not incapacitated by his depressive condition. I have reached the following conclusions:

(a) Mr Stavrakijev suffers a depressive disorder of moderate severity which incapacitates him for employment;

(b) Antidepressant medication and psychological treatment has resulted in some improvement; and

(c) Further improvement is likely, with an adjustment of treatment.

Dr Berberovic and Dr Epstein expressed the view that Mr Stavrakijev also suffers a post-traumatic stress disorder caused by the fall. On that issue I prefer the opinions of Dr Adlard, Dr Paoletti and Associate Professor Mendelson that Mr Stavrakijev does not meet the criteria for diagnosis of post-traumatic stress disorder.

Pain and suffering damages

The plaintiff submitted a reasonable assessment for pain and suffering damages was $350,000. Ready Workforce submitted general damages should be allowed at no more than $150,000, and Holcim submitted a range of $100,000 to $125,000 was appropriate.

Mr Stavrakijev required surgery to his right achilles and right shoulder, the results of which have been good. I accept the evidence of Dr Thomas that the prognosis is for ongoing intermittent lower back ache, and mild symptoms affecting the right Achilles tendon and in the right shoulder, with no substantial change and no worsening with time. I accept the evidence of Dr Thomas that Mr Stavrakijev should limit lifting between waist and chest height to 10 kilograms infrequently and 5 kilograms frequently and lifting above shoulder height, that he should avoid bending, twisting and stooping, and that in practical terms Mr Stavrakijev’s employment is substantially limited.

I take into account the currently incapacitating depressive injury, and the probability of future improvement in that condition with an altered treatment regime.

By the time of trial Mr Stavrakijev had suffered the physical conditions for six years, and the psychological condition for almost as long. It is likely he will continue to suffer symptoms from each condition indefinitely into the future. The injuries have caused incapacity for employment and a substantial inference to Mr Stavrakijev’s enjoyment of life. I conclude a reasonable allowance for pain and suffering damages is $220,000.

Pecuniary damages

I conclude that Mr Stavrakijev was partially incapacitated for work until September 2012 and since that time he has been totally incapacitated.

Ready Workforce lost the contract to supply casual labour to Holcim in July 2012. Mr Stavrakijev took up the position with Ready Workforce in order to work at Holcim because the job paid far more than his previous employment. Both Mr Keogh and Mr Cavka said Mr Stavrakijev was a hard worker and a good employee. Mr Jones said, in effect, that Holcim tried to keep good workers. I conclude that had he not been injured Mr Stavrakijev would have tried to remain working at Holcim either as a direct employee or as an employee of the current labour hire firm.

At the time he suffered injury Mr Stavrakijev was working an average of 60 hours per week and was being paid $1,767 gross as a casual employee. Calculations of past loss of earnings were prepared by consulting actuary, Mr Heath. Assuming:

(a) transfer to casual employment with Holcim in July 2012;

(b) continued work at 60 hours per week;

(c) salary increases provided for in relevant Holcim agreements; and

(d) four weeks unpaid leave per year

Mr Heath calculated past but for injury earnings to 26 February 2018 at $424,497, together with superannuation contributions of approximately $35,000. At a current net rate of pay of $1,396 per week and superannuation contributions of $108 per week the past figure to 13 November 2018 increases to approximately $475,000 for earnings and approximately $40,000 for superannuation contributions, being a total of $515,000. Past with injury earnings and superannuation total $47,192, resulting in a past loss of $470,000.

For a number of reasons the above figure represents an overly generous assessment of past loss of earnings. Without injury earnings have not been reduced for public holidays, and there is no allowance for sick leave. In my view it is unrealistic to assume that Mr Stavrakijev would work 60 hours per week long term, or that these hours of work would always be available to him. There were risks to employment because it was casual, and because Mr Stavrakijev would have had to transfer to Holcim in order to sustain employment. Given that Mr Stavrakijev’s long-term employment prior to commencing with Ready Workforce paid only about $37,000 gross per annum, the vicissitudes associated with loss of his high paid employment with Holcim were considerable.

The after-tax rate of pay and superannuation contributions on which Mr Heath’s calculations were based were approximately $1,200 and $95 per week in 2011, and approximately $1,400 and $110 per week in $2018. Taking account of a reduction for unpaid public holidays and sick leave, vicissitudes associated with a reduction in hours of employment and loss of casual employment, and Mr Stavrakijev’s earnings history, it is reasonable to allow $1,000 net per week including superannuation contributions for without work injury earnings. The past period from 15 November 2011 is 364 weeks which results in total past but for injury earnings of $364,000. That figure must be reduced by $47,192 for past earnings. I allow past loss at $315,000.

Currently Mr Stavrakijev is totally incapacitated by his psychological condition. His English is limited and he has no transferable skills for non-physical employment. He has been out of the workforce for six years. Even allowing for future improvement of his psychological condition, his future prospects of sustained, full-time employment are poor.

Ready Workforce submitted future loss should be calculated on the basis Mr Stavrakijev would regain full capacity in four years. Holcim submitted only two years of future loss of earning capacity should be allowed. Those submissions are not supported by the evidence.

Counsel for Mr Stavrakijev accepted there should be some allowance for residual earning capacity, and submitted it was appropriate to allow a global figure of $100,000. It is reasonable to allow some time for Mr Stavrakijev’s condition to improve to the point he has a capacity for employment. The assessment of residual capacity should take into account Mr Stavrakijev’s modest earnings history pre-Holcim, the difficulties he is likely to experience obtaining and retaining suitable employment, and his limited capacity to acquire new work skills. I conclude his capacity will likely be limited to part-time employment, at least initially. A figure of $450 net per week including superannuation, which represents annual earnings of about $22,500, is a reasonable estimate of a 50 per cent retained capacity for Mr Stavrakijev in the sort of lower paid employment in which he was engaged prior to commencing at Holcim, and to which he is likely to be limited when he regains some capacity. It is reasonable to allow a further three years for Mr Stavrakijev to regain capacity for work and obtain employment, and to project that capacity to age 60. The 6 per cent multiplier from age 47 to age 60 is 475.7, and the three year deferral factor is 0.84, which results in a value for retained capacity of $180,000.

In my view it is reasonable to calculate future but for injury earnings at the rate of $1,000 net per week including superannuation, which represents average gross annual earnings of a little less than $60,000. The 6 per cent multiplier to age 60 is 542.9 and to 67 is 660.9. Total future but for injury earnings calculates at $660,9000 to age 67 and $542,900 to age 60. After reduction for residual earning future loss is $480,000 if but for injury earnings are calculated to age 67, and $362,000 to age 60. I adopt a figure in the mid-point to take account of increasing risks associated with casual employment and hours of work the longer the period of earnings are projected and the older Mr Stavrakijev becomes, and the relatively low skilled and physical nature of the employment. I will reduce future loss of earning capacity by 15 per cent for the usual vicissitudes, and allow a figure of $355,000.

In summary, I award Mr Stavrakijev damages as follows:

(a) Pain and suffering $ 220,000

(b) Past loss of earnings $ 315,000

(c) Future loss of earning capacity $ 355,000

(d) Total $ 890,000

The damages award will require adjustment in accordance with s 134AB(25) of the Accident Compensation Act 1985 (Vic), and to take account of tax paid on compensation for loss of earnings. I will hear from the parties in relation to the form of the orders and as to costs.