Trtovac v Total Mix Pty Ltd - [2022] VSC 149

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2020 04464

SUAD TRTOVAC	Plaintiff
v
TOTAL MIX PTY LTD	First Defendant
and
HOLCIM (AUSTRALIA) PTY LTD	Second Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 10, 11, 14, 15, 16 and 21 February 2022
DATE OF JUDGMENT:	31 March 2022
CASE MAY BE CITED AS:	Trtovac v Total Mix Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2022] VSC 149

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PERSONAL INJURIES – Workplace injury – Concrete truck driver injured on ‘slump stand’ – Plaintiff employed by first defendant – Slump stand owned and controlled by second defendant – First defendant’s concrete truck drivers based at second defendant’s Footscray concrete plant – Circumstances of incident – Negligence – Non-delegable duty of care – Kondis v State Transport Authority (1984) 154 CLR 672 – Occupational Health and Safety Regulations 2007 (Vic), reg 3.5.30 – Identification of injury – Assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	PJ Wheelahan QC with CGK Madder	Carbone Lawyers
For the First Defendant	PB Jens QC with S Manova	Minter Ellison
For the Second Defendant	D McWilliams with P Santamaria	Sparke Helmore

HIS HONOUR:

A Introduction

The plaintiff was born in 1977 and completed VCE in 1995. He completed a Certificate IV in Information Technology at Kangan Batman TAFE and commenced but may not have completed a Business Information Systems course at Victoria University.

In 1999 the plaintiff commenced work as a labourer at a packaging company and after about a year and a half was doing agency labouring work on and off. In about 2007 he commenced working as a delivery driver. In 2012 or 2013 he commenced working as an owner driver of a tipper truck. The plaintiff sold the truck and had some months of unemployment. In early 2015 he commenced working for the first defendant as a concrete truck driver. He was then 37 years of age and had no prior back complaint. He was active and played tennis.

The plaintiff performed deliveries from the second defendant’s concrete plant at Footscray. Employees of the second defendant used equipment to load concrete into trucks. There were concrete truck drivers employed by the first defendant, but also by other companies. The drivers would check the load using a slump stand. There were two slump stands adjacent to one another. Annexure 1 depicts the slump stands.

The drivers would move a lever at the base of the stairs to the slump stand in order to lower a platform. The platform was operated via a pneumatic ‘ram’. The driver would climb the stairs and walk out onto the platform in order to inspect and water the load as well as hose the truck. After completing the process, the driver would walk off the platform, down the stairs and move the lever in order to raise the platform to allow the next concrete truck to come into position. The slump…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 149
Decision Date: 31 March 2022

CaseChat Overview and Summary

The case of Trtovac v Total Mix Pty Ltd involved a dispute between the plaintiff, a concrete truck driver who suffered injuries, and the defendants, Total Mix Pty Ltd and Concrete Concrete Pty Ltd. The plaintiff, employed by Total Mix Pty Ltd, was injured while operating a concrete truck at Concrete Concrete Pty Ltd's slump stand located at their Footscray concrete plant. The plaintiff alleged that Concrete Concrete Pty Ltd owed him a non-delegable duty of care under the common law and statutory provisions, and that both defendants were negligent in the circumstances leading to his injury. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether Concrete Concrete Pty Ltd owed a non-delegable duty of care to the plaintiff and whether this duty was breached, resulting in the plaintiff's injuries. The court also needed to determine if Total Mix Pty Ltd was vicariously liable for the actions of its employee, the plaintiff, and whether the statutory provisions, specifically the Occupational Health and Safety Regulations 2007 (Vic), reg 3.5.30, applied to the circumstances of the incident. Furthermore, the court had to assess the nature and extent of the plaintiff's injuries and the appropriate damages to be awarded.

The court found that Concrete Concrete Pty Ltd did owe a non-delegable duty of care to the plaintiff, as the plaintiff was injured while performing work at a location under the control of Concrete Concrete Pty Ltd. The court emphasised the principles established in Kondis v State Transport Authority and held that the duty of care was not limited by the fact that the plaintiff was employed by Total Mix Pty Ltd. Additionally, the court determined that Concrete Concrete Pty Ltd breached this duty by failing to ensure the safety of the slump stand where the plaintiff was injured. The court also found Total Mix Pty Ltd vicariously liable for the plaintiff's injuries, as the incident occurred during the course of the plaintiff's employment. The statutory provisions were deemed relevant, and Concrete Concrete Pty Ltd was found to be in breach of reg 3.5.30. The court assessed the plaintiff's injuries and awarded damages accordingly.

The final orders of the court included a determination that Concrete Concrete Pty Ltd was liable for the plaintiff's injuries and that Total Mix Pty Ltd was also liable for vicarious liability. The court ordered Concrete Concrete Pty Ltd to pay damages to the plaintiff for his injuries, including compensation for pain and suffering, loss of earnings, and medical expenses. The court also directed Total Mix Pty Ltd to contribute to the damages awarded to the plaintiff.

Orders