Velkovski v SRG Limited
[2018] VCC 804
•27 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-03699
| ANGEL VELKOVSKI | Plaintiff |
| v | |
| SRG LIMITED (FORMERLY STRUCTURAL SYSTEMS LTD) | First Defendant |
| and | |
| BECON CONSTRUCTIONS (AUSTRALIA) PTY LTD | Second Defendant |
| and | |
| AV19 PTY LTD | Third Party |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 10, 11, 14, 15 and 16 May 2018 | |
DATE OF JUDGMENT: | 27 July 2018 | |
CASE MAY BE CITED AS: | Velkovski v SRG Limited & Ors | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 804 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Torts – Industrial Accident – Contribution – Third party proceedings
Legislation Cited: Accident Compensation Act 1985; Wrongs Act 1958
Cases Cited:Andar Transport Pty Ltd v Brambles Limited [2004] HCA 28; Podrebersek v Australian Iron & Steel Pty Ltd [1985] 59 ALJR 492; Hoad v Peel Valley Exporters Pty Ltd [2008] NSWSC 981; Papadopoulos v MC Labour Hire Services Pty Ltd and Concept Hire Limited (2009) 24 VR 665; Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; Leighton Contractors Pty Ltd v Fox & Ors [2009] HCA 35; Papadopoulos v MC Labour Hire Services (No.4) (2009) 24 VR 655
Judgment: Application against the third party unsuccessful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC with Mr R Stanley | Patrick Robinson & Co |
| For the First Defendant | Mr S Smith | Terrill & Holmes Pty Ltd |
| For the Second Defendant | Mr D Masel SC with Ms F Crock | Moray & Agnew |
| For the Third Party | Mr S O’Meara QC with Ms K Manning | Wisewould Mahony |
HER HONOUR:
Preliminary
1 On 8 April 2013, Mr Velkovski suffered an injury to his lower back, whilst collecting bundles of steel dowel bars, from a confined space, at a building site in Glenferrie Road, Hawthorn. The second defendant, Becon Constructions (Australia) Pty Ltd (“Becon”), was the principal contractor of the site, upon which the Emblem Apartments, a six-storey apartment complex was being constructed. To assist in the completion of this project, Becon had sub-contracted with numerous entities, including the first defendant, SRG Limited (“SRG”), who was responsible for the performance of concrete reinforcement and post-tension concreting work throughout the apartment complex. As part of that sub-contract, SRG had purchased supplies from Mesh & Bar Pty Ltd (“Mesh & Bar”), including the steel dowel bars, which Mr Velkovski was moving at the time he suffered his injury.
2 Mr Velkovski was employed by, and was the sole director of AV19, the third party to the proceedings. AV19 had been contracted by Mesh & Bar, to deliver and collect its products from different building sites around Victoria, including the Emblem Apartments site.
3 On the day he suffered his injury, Mr Velkovski said that he had been required to collect and return some dowel bars, from the Emblem Apartments site to the Mesh & Bar depot. He said there were about 12 bundles of dowel bars, each weighing approximately 25-30 kilograms, which were located under a low lying scaffold. Mr Velkovski said that the first 10 bundles were relatively easy to remove, but that the last two had been more difficult, as they were located further back. In order to collect these bundles, Mr Velkovski said that he had to get down on either one or two knees, and lean forward about a metre to pull the bundles towards him. Whilst pulling the bundles, Mr Velkovski said that he experienced a sudden onset of pain in his lower back.
4 Mr Velkovski claimed that the first and/or second defendants were negligent for having positioned the dowel bars in an unsafe place and for failing to have provided him with assistance for their safe removal. The first and second defendants denied negligence, and in the alternative, claimed that Mr Velkovski was contributorily negligent.
5 Further, the first and second defendants joined AV19 as a third party to the proceedings, from whom they sought contribution, on the basis that it was just and equitable for AV19, as the employer of Mr Velkovski, to contribute to any damages awarded.
6 In addition, there was a related proceeding under s138 of the Accident Compensation Act 1985 (Vic), in which the VWA sought recovery from the first and second defendants.
7 At the commencement of the trial, all the above matters were in issue. However, on the fourth day of the hearing, whilst Mr Velkovski was still under re-examination, the primary proceeding between Mr Velkovski and the first and second defendants resolved.[1]
[1]The defendants agreed that there was no issue that the settlement amount was excessive
8 The s138 recovery proceeding was then adjourned until the resolution of the third party claim, on the basis that the parties could not adduce any further evidence in respect of the issue of liability, and in particular, Factor X of the formula in s138 of the Accident Compensation Act.
9 The contribution and third party proceedings then continued.
10 For the reasons which follow, I am satisfied that SRG and Becon were each liable for the injury Mr Velkovski suffered at the Emblem Apartments site. Responsibility between those two parties should be apportioned 40 per cent to SRG and 60 per cent to Becon. I am not satisfied that AV19 was liable for the injury Mr Velkovski suffered.
Mr Velkovski’s work arrangements, and how he came to be injured
11 Mr Velkovski was born in Macedonia, and is currently 53 years of age. He completed his secondary schooling, before then undertaking training as a fitter and turner.
12 Mr Velkovski migrated to Australia in 1997, and subsequently undertook a variety of jobs, including taxi driving, coach driving and some factory work.
13 After driving coaches on the Gold Coast for a period of time, Mr Velkovski set up his own trucking business, with his then wife. He divorced his wife in 2009, at which time their trucking company had approximately 15 trucks, including both crane trucks and prime movers. At this time, one of their clients was Mesh & Bar, a company that manufactured steel products used in concreting and formwork on building sites.
14 In June 2009, following his divorce, Mr Velkovski formed a new company, AV19 Pty Ltd (“AV19”), of which he is the sole director.
15 AV19 initially undertook delivery work for Mesh & Bar, with the use of its three crane trucks, as well as for Linfox, with the use of its two prime movers. In approximately 2012, however, Mr Velkovski sold the prime movers, such that AV19 thereafter undertook delivery work exclusively for Mesh & Bar with its three crane trucks.
16 At the time he suffered his injury, AV19 owned two of the crane trucks, one of which was driven by Mr Velkovski, and one of which was driven by another employee of AV19. The third crane truck was owned by a sub-contracting driver.
17 In addition to driving the truck on a daily basis, Mr Velkovski said that he also managed AV19’s business, including its relationship with Mesh & Bar, save for the bookkeeping and the payment of wages, which was managed by his second wife, following their marriage.
18 AV19’s trucks were kept at the Mesh & Bar depot each night. Each morning, Mesh & Bar would then provide the AV19 drivers with details of the deliveries or pick-ups they were required to complete that day. Mr Velkovski said that such information was recorded on a delivery docket, which included the name and number of a contact person, as well as the site from which the goods were to be delivered or collected. Mr Velkovski said that his usual procedure was to call the contact person at the site, to confirm the intended delivery, and to ascertain the specific time and location.
19 In addition, AV19 employees also completed a daily running sheet, on which they recorded the name of the customer, the suburb for delivery, the time at which the AV19 driver arrived at and departed from the delivery site, a signature from the recipient of the goods, and the time at which the driver returned to the Mesh & Bar depot.
20 In the first few months of 2013, Mr Velkovski said that he was required to complete some deliveries for Mesh & Bar, to their customer, SRG, at the Emblem Apartments site, located at 860-868 Glenferrie Road, Hawthorn. In addition, Mr Velkovski said that he had been asked by Mesh & Bar to collect some dowel bars from the site, which he understood were to be returned to the Mesh & Bar depot. Mr Velkovski recalled having made enquiries as to the collection of dowel bars on numerous occasions in the period approximately 4‑6 weeks prior to the incident, but having been told that the dowel bars were under timber, and could not be accessed. Mr Velkovski could not recall who told him this. He also recalled that AV19’s other drivers had attempted to collect the bars whilst they were making other deliveries to the Emblem Apartments site, but said he was unsure what they had been told in relation to not having been able to collect the bars.
21 Mr Velkovski provided six daily running sheets from Mesh & Bar, three of which confirmed his attendance at the Emblem Apartments site on each of 4 February, 20 February and 22 March 2013, the fourth of which showed that he may have attended on 28 March 2013, and the fifth and sixth of which confirmed the attendance of another AV19 driver on 15 January and 12 February 2013.
22 On 8 April 2013, Mr Velkovski was required to attend the Emblem Apartments site, to deliver some products from Mesh & Bar and to collect the dowel bars. The daily running sheet from Mesh & Bar indicated that Mr Velkovski left the Mesh & Bar depot at 6.25am, and arrived at the site at 7.05am.
23 Before arriving, Mr Velkovski said that he had called the person whose name appeared on the delivery docket. He was unable to recall whose name appeared on the delivery docket, or for which company that person worked.[2] On arriving at the site, Mr Velkovski was directed to park his truck in an allocated parking bay, at the 7‑Eleven petrol store next door to the site. Becon had rented four car spaces at this site to enable trucks to be unloaded with the use of its crane, as and when required.
[2] The delivery docket was not tendered in the proceedings
24 Soon after parking his truck at 7‑Eleven, Mr Velkovski said that he was met by a dogman, who then assisted him to remove the Mesh & Bar goods which he had delivered to the site. Mr Velkovski said that he was not involved in chaining the goods, or arranging for their removal from his truck, as this was completed by Becon’s onsite cranage services. Instead, Mr Velkovski said that he went to the site office, where he produced the delivery docket in respect of the goods to be unloaded from his truck, and the pick-up docket in respect of the dowel bars to be collected from the site.
25 Mr Velkovski said he was directed by someone at the site office to walk along Glenferrie Road, before entering through a small door in order to access the dowel bars, which he described as being located under a scaffold. He said that to access the bars he was required to reach under the scaffold and that, due to uneven ground, the access to the area in which the dowel bars had been placed varied from 800–1200 millimetres.
26 Mr Velkovski described the dowel bars as being approximately 400 millimetres long, and 12–20 millimetres thick. He said that when these products are delivered to a construction site, most of them are shrink-wrapped, put on a pallet and moved with a forklift or crane.
27 Mr Velkovski said that the bundles of dowel bars had not been stacked properly, and it appeared that someone had tipped them from a wheelbarrow. He said that some were closer to the edge of the scaffold than others which had been placed further back, and were thus harder to access.
28 After observing the bundles of dowel bars, Mr Velkovski said that he went back to the site office in order to ask for some assistance with their removal. He recalled having been told by the person at the office that nobody was available at that time, and having been given a two wheeled hand trolley in order to assist him in the removal task. Mr Velkovski said that he did not say anything further to the person at the site office, but that he simply took the trolley back to the dowel bars, and commenced loading them.
29 Mr Velkovski said that whilst he did not count the bundles he loaded, he believed there were about 12. He proceeded to load about half of those bundles onto the trolley, and, owing to their location close to the edge of the area under the scaffold, was able to do so by bending his knees and lifting the bars with a straight back.
30 After having loaded the trolley with half the bundles, Mr Velkovski then took them to his truck, and loaded them into the truck, before returning to load the remaining bundles. In order to access the last one or two bundles, Mr Velkovski said that it was necessary for him to go down on one or both knees, lean in approximately one metre and pull the bundle towards him. As he pulled one of the bundles towards him, Mr Velkovski said that he felt a sharp stabbing pain in his lower back.
31 Mr Velkovski continued to put the last bundles on the trolley and then proceeded to pull the trolley across to the truck. He said that his pain at that stage was such that he could not load the bundles onto the truck himself, so he asked the dogman for assistance.
32 After the bundles of dowel bars had been loaded onto his truck, Mr Velkovski said that he collected the necessary paperwork, strapped the load to his truck and returned to the Mesh & Bar depot. The records indicate that Mr Velkovski departed from the construction site at 8.10am, and arrived at the Mesh & Bar depot at 8.40am.
33 Mr Velkovski said that he then completed two subsequent trips to Dandenong during the course of that day, before arriving back at the Mesh & Bar depot at 4.20pm. At this time, Mr Velkovski said that he did not think he had done anything serious to his back, and hoped that it was just a strain, such that he would be okay within a short period of time. However, Mr Velkovski said that his pain was so bad the following day that he made arrangements for someone else to drive his truck.
34 Save for a brief attempt to drive his truck on 30 April 2013, during which time he experienced difficulties climbing onto the truck to position the straps, Mr Velkovski has otherwise not returned to work.
Mr Velkovski’s evidence
35 Mr Velkovski was the first witness to give evidence in the proceeding and I considered him to be a creditworthy witness, who gave frank evidence, on many occasions against his own interests, or against the interests of AV19.
36 Despite English being his second language, and his occasional reliance on the interpreter, Mr Velkovski gave the majority of his evidence in English. He impressed me as being a very honest and reliable man, who was proud of his work and that of his business. Mr Velkovski conceded that there were numerous ways in which his injury could have been avoided, but repeatedly emphasised that he did not want to let down Mesh & Bar nor create any difficulties on the site, after having been told there was no one available to assist him at that time with the removal of the bars.
37 As a hardworking employee and business owner, I accept that Mr Velkovski just wanted to get the job done, but that, unfortunately for him, in so doing, he exposed himself to a foreseeable risk of injury, which then eventuated and for which he has now suffered ongoing lower back pain, together with psychiatric upset.
38 Mr Velkovski was cross-examined at length as to the exact location of the dowel bars. He was shown photographs of the construction site, taken on the day he suffered his injury, as well as more detailed photographs taken by Google Earth in May 2013. Mr Velkovski was not able to identify the small door through which he said he was told to walk.
39 Mr Velkovski was also taken to his Answers to Interrogatories, which referred to the dowel bars as being located in “a position under a walkway near another entrance to the site on Glenferrie Road”. It was put to Mr Velkovski that such an answer was inconsistent with the answer he gave in his evidence in chief, that he was directed to go through a small door.
40 However, I am satisfied, when the totality of Mr Velkovski’s answers are taken into account, that his reference to a walkway was used interchangeably with the term scaffold.
41 It was also suggested to Mr Velkovski in cross-examination that the dowel bars had been located on the footpath, under a gantry. Mr Velkovski denied this suggestion, and I accept his evidence.
42 In circumstances where English is his second language, and where he is not a qualified builder, I accept that Mr Velkovski did not understand the term gantry. He was firm, however, in his recollection that the dowel bars had been located on the construction site and not on the footpath.
43 Mr Velkovski was also cross-examined regarding his description of the area in which the dowel bars had been stored, and in particular, the nature of the structure above them. Mr Velkovski referred to it as scaffolding. He stated that the landing on the scaffold was level, but that the footings were at different heights, and followed the slope of the land.
44 However, the witnesses called by SRG and Becon, were not able to reconcile Mr Velkovski’s description of the scaffolding structure with their memory of the particular building site. It was not until the last witness, Mr Scott Hubery, gave evidence, and drew a diagram of cross bracing and side bracing, that it became apparent that Mr Velkovski may have confused scaffolding with formwork.
45 In my opinion, nothing of significance turns on whether the dowel bars were stored under scaffolding or formwork, or some other such structure. Despite the lengthy cross-examination of Mr Velkovski, it was not put to him that he did not suffer his injury whilst moving the dowel bars out from a confined space. In such circumstances, I am satisfied that the dowel bars were stored in a confined space on the construction site where they were not easily accessible.
46 Mr Velkovski said that he thought it would be safer to move the dowel bars with another person, as he considered that would mean “you halve the weight” that had to be lifted. It was for that reason that he said he asked for assistance at the site office.
47 Mr Velkovski said that, after he had moved the first half of the bundles, he did not think to go back to the office to enquire as to whether or not someone had become available to help him.
48 Mr Velkovski accepted that the bundle of dowel bars could have been cut with pliers or a small bolt cutter so as to reduce the weight to be handled, and that he had equipment of that type in his truck.
49 Mr Velkovski said :
“There's options always but at the time you think that's the best you can do and you never think you will hurt yourself.”
50 Mr Velkovski said that, at previous construction sites, whilst delivering items for Mesh & Bar, he would sometimes follow the direction of a customer, notwithstanding that he believed it to be unsafe, as he felt that it was easier to just do the job, and to avoid the customer subsequently complaining about him to Mesh & Bar. He said:
“And that will be affecting my business and maybe Mesh & Bar will get rid of me, so I don't like any complaints towards me at all and at the end of the day I want the job to be done.”
51 On several occasions in his oral evidence, Mr Velkovski said that he did not want to escalate things on site, by refusing to collect the dowel bars. He said that he did not want to let down Mesh & Bar, Becon or SRG, and that he was also concerned not to damage his company’s business relationship with Mesh & Bar. He did say that with retrospect, however, he now understood that Mesh & Bar would not have been upset with him, had he informed them that the bars were in too unsafe a position to be removed without assistance.
52 In determining the responsibility for Mr Velkovski’s injuries, it is necessary to consider the contractual arrangements in existence on the Emblem Apartments site, as well as who was responsible for the dowel bars and the circumstances in which they were to be returned to Mesh & Bar.
Contractual arrangements relating to the construction of the Emblem Apartments
53 The Emblem Apartments complex comprised a two level basement, a ground floor and then six subsequent levels, including a roof on level 6. Photographs taken from an adjacent building site on the day Mr Velkovski suffered his injury showed that construction had proceeded to level 3 of the apartment complex.
54 Becon was the principal building contractor responsible for the Emblem Apartments, and it entered into sub-contracting arrangements with numerous companies to assist in the completion of the building works. One such sub-contract was entered into with SRG on 22 May 2012.
55 Becon required SRG to provide works which included, but were not limited to, “the structural design and documentation of the post tensioned areas” within the apartment complex, and “the supply of all materials and labour for the installation, stressing and grouting of post tensioning tendons” within the basement, ground level and level 6 roof. In addition to performing this specialised post tensioning work, SRG also agreed to “supply and fix reinforcement to all horizontal elements” from the basement to level 6.
56 Becon’s sub-contract with SRG required SRG to liaise with Becon’s site foreman in respect of site attendance and the scheduling of works, and to ensure that all work and employee rubbish was removed from the site. Further, SRG was required to ensure that its employees, sub-contractors and suppliers complied with Becon’s occupational health and safety requirements and quality procedures, as well as its obligations under the relevant Acts and Regulations. As part of this obligation, SRG was also required to provide Becon with an OH&S and quality assurance plan.
57 In addition, SRG agreed that it would, at all times, keep upon the site a competent supervisor, acceptable to Becon, during the execution of the sub-contract work.
58 As one of Becon’s pre-commencement requirements, SRG was also required to provide a copy of safe work procedures for all works to be undertaken on the site.
59 Becon had its own occupational health and safety management plan (“OHSMP”), which it prepared in respect of the Emblem Apartments site. The purpose of that OHSMP was to set out the manner in which Becon would manage and control the safety aspects of the works performed at the site.
60 The OHSMP stated that the objectives of Becon included the following:
·Give due consideration to issues of health and safety in all stages of planning, design and construction to incorporate systems to eliminate or control hazards;
·Commit sufficient resources to the effective implementation of OH&S management systems in all areas of operation.
61 As part of Becon’s OHSMP, it provided resources to implement and maintain the safety system. Further, it stated that all personnel had an obligation to maintain safe work practices and a safe and healthy work environment for themselves, as well as others in the workplace.
62 As part of this OHSMP, a project organisational structure was established, which involved Becon’s OH&S manager, project manager, site supervisor, OH&S representative and employees, as well as Becon’s sub-contractors.
63 Becon’s OH&S manager was responsible for, amongst other things, monitoring project activities for compliance with OH&S legislative requirements and ensuring sub-contractors complied with nominated OH&S requirements.
64 Becon’s project manager was responsible for, amongst other things, providing sufficient funds, material and equipment to implement the requirements of the OHSMP, to participate in site safety walks/inspections, and to ensure the initiation of any action that was required.
65 Becon’s site supervisor at the Emblem Apartments site, was Mr Paul Kerekes. He was responsible for, amongst other things, “directing and coordinating the project labour force, including sub-contractors, in the daily execution of the work in a safe, workmanlike manner that maximises productivity”.[3] He was also responsible for implementing and assisting with the preparation of safe work method statements (“SWMS”), planning to ensure that all work was performed in a safe manner, ensuring hazard identification and reporting occurred, and reviewing SWMS.
[3]DCB 36
66 Becon’s OHSMP also required the following:
· sub-contractors had to participate in all relevant elements of the OHSMP, and were to be provided with a copy of it;
· prior to commencement on site, all project personnel had to undergo a site induction covering quality, safety and other matters;
· all visitors to the site were required to sign in at the site office area by a respective member of Becon staff.
67 Under the OHSMP, Becon recognised that its primary legal obligation was to ensure OH&S best practice, and to “ensure persons at the site and the public are not exposed to risks from products and substances that have been incorporated into the works and/or are stored and provided for use during work activities”; and “ensure site activities do not put at risk the health and safety of members of the public at or near the site”.
68 The OHSMP referred to obligations in respect of hazardous substances and set out the need for both informal and formal hazard identification.
69 In respect of the SWMS, it was noted that Becon’s supervisor was responsible for the planned work activity and, with the assistance of the OH&S representative as appropriate, was required to complete an SWMS worksheet form.
70 Becon’s health and safety policy statement formed an appendix to the OHSMP, and stated that Becon :
“will provide a safe and healthy workplace for all staff, sub-contractors and others by … identify and controlling all health and safety hazards and associated risks; … continually reviewing and improving the health and safety aspects of the management system to eliminate workplace injury and illness”.
71 Becon’s health and safety policy statement further recognised the company’s duty of care to all persons in the workplace, including its duty to develop and maintain processes to “identify and assess OH&S hazards in the workplace; control of these hazards; and residual risk evaluation within the guidelines … and to develop contractor management systems”.
72 SGR, in accepting the sub-contract, agreed to such terms. SRG provided Becon with a Statement of Commitment dated February 2012, which identified health and safety obligations to which it was committed. In particular, the statement detailed that :
“…everyone at… (SRG) is required to do all they can to ensure their own safety and health, and to protect the safety and health of others… All are expected to remain conscious of safety, and to direct their intelligence, initiatives and energy towards its improvement.”[4]
[4]DCB 96
73 Notwithstanding that neither Mr Velkovski nor AV19 were a party to this contract, it was agreed between the parties that the terms of the contract could inform the standard of care to be expected of Becon and SRG in their dealings with people on site, including Mr Velkovski.
The “mystery” surrounding the dowel bars – who purchased them, who handled them, where were they stored, and who arranged their collection?
74 SRG’s onsite supervisor at the Emblem Apartments site was Mr Heath Cant, and its leading hand was Mr Simon Marcus. Both have been employed with SRG for approximately 20 years, and were in such employment at the time they gave their evidence. Neither could recall the day on which Mr Velkovski suffered his injury, nor that SRG had been using dowel bars on this construction site.
75 In giving his evidence, Mr Marcus appeared vague and unreliable in respect of numerous aspects of the work SRG performed at the Emblem Apartments site. He was adamant that all the products and equipment used by SRG at the site had come directly from SRG’s depot in South Melbourne, and he offered no insight as to who had arranged for the collection of the dowel bars, nor who had placed them in the location from which Mr Velkovski collected them.
76 In giving his evidence, I considered Mr Cant to be at times uncooperative. He appeared reluctant to identify the circumstances in which the dowel bars were used on the site, and, when questioned about deliveries, was quick to answer that such deliveries were ordinarily coordinated through the principal contractor, rather than through the sub-contractors.
77 Becon’s onsite supervisor was Mr Paul Kerekes and its leading hand was Mr Scott Hubery. Both have been employed by Becon for many years, and were in such employment at the time they gave their evidence. Neither could recall the date on which Mr Velkovski suffered his injury. Further, neither had knowledge of the location of the dowel bars at the time Mr Velkovski removed them, or the need for the dowel bars to have been removed from the site.
78 I considered Mr Kerekes to be a very impressive and reliable witness. He gave considered answers and made appropriate concessions in respect of that for which he was responsible onsite. I also considered Mr Hubery to be a reliable witness, who endeavoured to recall the work he performed at the Emblem Apartments site, and who readily conceded those matters of which he had no specific recollection.
79 Mr Kerekes spoke of the importance of safety and communication on the site, and explained that it was Becon’s responsibility to ensure that each of the sub-contractors took responsibility for the occupational health and safety of the work they were performing. Mr Kerekes said that Becon monitored activity on the site through general observations, and more specifically, that he conducted weekly safety walks. Where necessary, Mr Kerekes said that he would immediately attend to and act upon any potential risks that were brought to his attention or the attention of his employees whilst on the site. Mr Kerekes agreed that Becon was required to ensure that any potentially dangerous work was carried out in a safe manner, and that any appropriate assistance was provided, whether by Becon itself or the specific subcontractor for whom the work was to be performed.
80 Mr Cant explained that SRG performed the specialised reinforcing work on site, but that it subcontracted to an entity, known as J & S,[5] to perform the more basic horizontal formwork. Mr Cant ultimately accepted that the dowel bars could have been used by J & S for the reinforcement of horizontal elements within the building. He also confirmed that each floor of the Emblem Apartments site had more than one concrete slab, and that dowel bars were often used to join such slabs.
[5]Also known as Simos Steel Fixers Pty Ltd
81 Mr Kerekes also said that each floor at the Emblem Apartments site had more than one concrete horizontal slab, and that dowel bars would probably be used for the joinder of such slabs within a level.
82 Whilst Mr Cant and Mr Marcus both said that they could not recall having used dowel bars from Mesh & Bar on this site, documents were tendered which demonstrated that Mesh & Bar had supplied goods to SRG for use at the construction site. The list of product prices, which included dowel bars, was sent to SRG’s design manager, Mr Michael Losinski. Mr Cant said that Mr Losinski was responsible for ordering the requisite materials from Mesh & Bar, based upon his drawings for the job.
83 Becon had no sub-contract arrangements with J & S, although in May 2013, it had entered into a labour hire arrangement with Mr Simos, the owner of J & S. Further, on 13 November 2012, Becon had inducted Mr Toli Sarris, an employee of J & S, to the Emblem Apartments site. On 20 February 2013, Mr Sarris signed for the delivery of products from Mesh & Bar.
84 In addition to the evidence referred to above, it was common ground between the parties that the dowel bars Mr Velkovski was collecting at the time he was injured were products which had been ordered by SRG, and which were being returned to Mesh & Bar. It is unknown who made the request for their return, or for what reason.
85 It is also unknown when their return was first requested, however, in accepting Mr Velkovski’s evidence, I consider it was likely to have been sometime in January or February 2013. There was no evidence as to whether or not there were repeated requests or communications of any kind between Mesh & Bar, SRG and Becon, regarding the collection of the dowel bars.
86 As SRG’s design manager, Mr Losinski would have been responsible for ordering the dowel bars. Mr Cant understood that he was still employed by SRG at the commencement of the trial. Mr Losinski was not called to give evidence. Although I cannot speculate as to the evidence that Mr Losinski would have given regarding the collection of the dowel bars, I can infer that it would not have assisted SRG’s case.
87 I am satisfied that Becon, as the principal contractor on site, directed the placement and storage of goods onsite. Mr Kerekes acknowledged this in his evidence, and stated that, as part of Becon’s control, his role was to ensure that the construction site was maintained in a way consistent with Becon’s commitment to safety. He also acknowledged Becon encouraged its staff to identify and control hazards on site.
88 Mr Hubery agreed to a “certain degree” that subcontractors were required to place materials only as directed by Becon.
89 Mr Cant also agreed that the storage of materials on site was at the direction of either Becon or the crane crew.
90 Mr Marcus confirmed that it was Becon’s decision as to where material was stored on site, and stated that, if material was required to be stored on site prior to its removal, it would be stored at the direction of Becon.
91 I therefore consider it probable that SGR, as the sub-contractor responsible for having purchased the dowel bars, was directed by Becon to place the dowel bars in the location from which Mr Velkovski collected them.
92 If, contrary to my finding above, SRG had positioned the dowel bars in the new location, independent of Becon’s direction, as part of its control and supervision of the site, I consider it probable that Becon was aware of the location of the dowel bars. Mr Kerekes and Mr Hubery were on site on a permanent basis, and I consider it improbable that both could have failed to notice a dozen bundles of dowel bars, even for a short period of time. Their full-time presence and frequent movement around the site makes it probable that both were aware of the location of the dowel bars.
93 Mr Kerekes said that it would be unusual for materials to be off loaded from the site, but that, in the event this was required, it would be up to the particular subcontractor responsible for the material to arrange for its removal.
94 Mr Marcus also said that there were occasions in which there was a requirement for materials to be returned to the SRG yard. In such circumstances, he said that he would contact Becon’s management in order to arrange for their truck to come and off load the materials from the site.
95 Mr Cant agreed that, from time to time, there would be adjustments needed with the suppliers where materials had been delivered in error or were faulty. He then agreed that, as a matter of ordinary course, SRG would contact Mesh & Bar in relation to the delivery in order to have the goods collected.
96 I am therefore satisfied that SRG arranged with Mesh & Bar for the collection of the dowel bars.
97 As part of its management of the site, Becon produced a daily report, which recorded the number of people on site each day, and from what entities. Mr Kerekes said that he usually completed this report at the end of each day, or the following morning.
98 On 8 April 2013, Becon had five employees on site: Mr Kerekes and Mr Hubery, together with Becon’s OH&S representative, Mr Phillip Darcy, and two labourers. In addition, there were approximately 38 sub-contractors, including two employees from SRG, who were noted to have worked on the final stress in the south part of level 2.
99 There were also two sub-contractors on site, from a labour hire company, who were retained by Becon to help keep the site tidy. Mr Kerekes said that the main duties of these labourers included sweeping and cleaning up general rubbish. He said that whilst there was nothing prohibiting the labourers from assisting with lifting on the site, it was more important that they completed their cleaning duties, which formed part of Becon’s first OH&S objective. However, Mr Kerekes conceded that the labourers were on site at the time of the incident, and should have been called upon to assist Mr Velkovski when he came to the site office seeking help to lift the bars.
100 Becon also used a whiteboard, located outside the site office, to monitor scheduled deliveries to the site, specifically those requiring use of the crane. Mr Kerekes explained that either the leading hand or the foreman of a particular sub-contractor would contact himself or Mr Hubery, who would then place the time of the intended delivery on the whiteboard, thereby effectively booking this time in the loading dock. He said that this process was usually completed, at the latest, the day before the intended delivery took place, and that the purpose of such advance notice was to ensure communication on the site and the most appropriate and effective use of the crane.
101 Mr Kerekes could not recall whether or not he had been notified in advance of a delivery from Mesh & Bar on 8 April 2013, and there is no evidence as to whether or not the collection of the bars was recorded on the whiteboard.
102 Mr Kerekes noted that the delivery of dowel bars from Mesh & Bar to the construction site on 8 April 2013 should have been recorded on the whiteboard, but said that, irrespective of whether or not it had been, the delivery would not have been recorded on the Becon daily running sheet or daily report. He said that deliveries arranged by sub-contractors were not recorded on the paper work Becon kept.
103 On the morning he suffered his injury, Mr Velkovski said that he called the number given to him by Mesh & Bar to confirm his expected arrival at the Emblem Apartments site, but that he could not recall the person with whom he spoke.
104 Mr Velkovski stated that, on numerous occasions prior to 8 April 2013, he had been told that the dowel bars were in an inaccessible position under timber or that they were not ready to be collected. In circumstances where Mr Velkovski was the only person to have given direct evidence in relation to the location of the bars, and where I accept Mr Velkovski as a reliable and credible witness, I am satisfied that, for whatever reason, and for an unknown period of time, the dowel bars were probably stored under timber.
105 Although not aware of the actual circumstances of the storage of the dowel bars on site prior to 8 April 2013, Mr Kerekes and Mr Marcus accepted that one such possible explanation for the bars to have been placed under timber was that such timber had probably been associated with the formwork. However, such supposition is not critical to my findings in this matter, as I accept Mr Velkovski’s evidence that, as at the time of his accident, the dowel bars had been moved to a new location on site. The issue for me to determine is who, if anyone, directed that the dowel bars be moved, who placed them in the confined space in which Mr Velkovski found them, as well as who knew about their position and their intended collection.
106 Mr Velkovski suffered his injuries on a Monday morning, sometime between 7.05am and 8.10am. It is unknown when the dowel bars were moved to the location from which Mr Velkovski collected them. Mr Marcus and Mr Kerekes both agreed that, had they seen the bundles of dowel bars in the confined space as described by Mr Velkovski, they would each have recognised that there might be a risk of injury to any person who sought to get in underneath to remove them.
107 Mr Hubery signed the running sheet that Mr Velkovski completed on behalf of Mesh & Bar. I therefore consider it probable that Mr Hubery was the person on site who informed Mr Velkovski of the location from which the dowel bars could be collected.
108 As Mr Hubery could not recall the events of 8 April 2013, he was unsure as to how he came to know of the location of the dowel bars, so as to be able to inform Mr Velkovski. In closing submissions, Mr Masel suggested that, on the morning of 8 April 2013, the two SRG employees on site may simply have told Mr Hubery of their location, such that he was able to pass this information to Mr Velkovski when he arrived at the site office enquiring as to their location. Although possible, I consider this explanation to be unlikely. As stated above, I consider it probable that Mr Hubery had actual knowledge of the location of the dowel bars at the time he spoke with Mr Velkovski on this day.
109 From at least the time Mr Velkovski spoke to Mr Hubery about the location of the dowel bars, and soon after, when he asked for assistance in their removal, I am satisfied that Becon had knowledge of the imminent need to move the dowel bars from their confined location.
110 In cross-examination, Mr Hubery accepted that, whilst Monday mornings were a busy time on site, Mr Kerekes, Mr Darcy, Becon’s other employees, as well as the two labourers from the labour hire agency, would all have been on site and possibly available to help Mr Velkovski move the dowel bars. Mr Hubery said that he would usually go and find the labourers if he sought their assistance, but that he could sometimes call them on their walkie-talkies.
111 Mr Hubery was then asked what he would do if people were unavailable to assist at that time, and, specifically, whether or not he would want to stop a person from proceeding to put themselves in harm’s way. Mr Hubery answered “Yeah, you might.”
Did SRG contribute to Mr Velkovski’s injuries?
112 The dowel bars had been purchased by SRG, and, for reasons unknown, were to be returned to Mesh & Bar.
113 It is unknown when the return was first requested, and how often, prior to 8 April 2013, SRG communicated with Mesh & Bar regarding their collection. No written documents were tendered regarding their collection, and Mr Losinski was not called to give evidence. Further, Mr Cant and Mr Marcus could not recall having used the dowel bars on the Emblem Apartments site.
114 Despite such uncertainty, I am satisfied that, under Becon’s direction or with its knowledge, it is probable that SRG moved the dowel bars to the location from which Mr Velkovski collected them. SRG knew, by that time, that the dowel bars were to be returned. SRG also knew that the dowel bars were in bundles, weighing approximately 25-30 kilograms.
115 SRG’s contractual obligations were to execute and complete the sub-contract work on site, including the safe return of items for which it was responsible. In anticipation of their imminent collection, SRG should have arranged for the dowel bars to be in an accessible area, so as to enable them to be moved safely by the person who arrived on site to collect them.
116 SRG’s failure to ensure this was done meant that, when Mr Velkovski arrived on site, the dowel bars had been placed in a location, where accessing them carried a risk of injury. Accepting it is probable that Becon directed the dowel bars to be stored in that location did not absolve SRG from its responsibility to ensure the dowel bars were in a state and location to be safely collected.
117 When the dowel bars arrived on site, Mr Velkovski said that they were usually on a pallet and shrink wrapped. He said this was for safety reasons, to ensure there was no movement of the bars whilst travelling, and to ensure they were lifted safely with the crane.
118 At the time of their return, I consider it reasonable to expect that SRG would have ensured the goods were in a location on site, from which they could be safely collected. This would have involved co-ordination between SRG, Becon and Mesh & Bar to ensure that the bars were in a position which would have enabled Mesh & Bar’s delivery person to readily and safely access them. This may have included placing the dowel bars on a pallet, secured with tines or shrink lift, for loading mechanically with a crane, or having placed them in an area from which they could be manually lifted by a person exercising safe lifting techniques.
119 It was not acceptable for SRG to simply wipe its hands clean of any responsibility regarding the safe return of the dowel bars. In closing submissions, Mr Smith suggested that SRG had informed Mesh & Bar of the need for the dowel bars to be collected weeks earlier, and said that the state of the bars had changed over time, such that by 8 April 2013, SRG could not have been expected to know the state of those bars. I do not accept this submission. SRG was responsible for the safe return of the dowel bars, and its failure to safely co-ordinate their return, contributed to Mr Velkovski suffering his injury.
Did Becon contribute to Mr Velkovski’s injuries?
120 As principal contractor of the Emblem Apartments site, Becon was responsible for co-ordinating a number of sub-contractors on site, as well as its own employees. Its priority was to ensure the apartment complex was constructed in a timely and cost efficient manner, whilst maintaining a safe working environment. Mr Kerekes confirmed that safety was a priority for Becon.
121 Health and safety was not something that Becon sought to delegate. Under its sub-contract, Becon expected a range of safety commitments from SRG, but it also offered its own commitments in its OHSMP. Such commitments were wide-ranging, and recognised the importance of co-operation by all entities on site to ensure a safe work environment for Becon’s employees, the subcontractors on site and other members of the public.
122 This commitment was demonstrated in part by the presence of a permanent OH&S representative from Becon on site, as well as two labourers, who were responsible for ensuring the worksite was kept in a clean and safe state.
123 Mr Velkovski was not a sub-contractor to either Becon or SRG, however, his presence on site was contemplated in the OHSMP. Mr Kerekes explained that any person who attended on site was required to register their attendance at Beacon’s site office. Induction was not required, however, for non sub-contractors such as Mr Velkovski, who were only on site for a short-term to deliver or collect supplies.
124 For the reasons explained above, I am satisfied of the probability that Becon directed, or at least permitted, the dowel bars to be stored in a confined space.
125 It is uncertain when Becon first became aware of the intended collection of the dowel bars. At the latest, it was on the morning of 8 April 2013, at which time Mr Hubery informed Mr Velkovski of the location of the bars. In circumstances where Mr Hubery was, at that point, aware that the bars were stored in a confined space, I consider this to have been his first opportunity to offer Mr Velkovski assistance with their collection. Such assistance could have been provided by the two labourers who were on site, at Becon’s direction, to assist in keeping the worksite clean and safe. These labourers could have assisted Mr Velkovski to cut the bundles, so that individual dowel bars could have been removed in a safer manner and with a reduced risk of injury.
126 The second opportunity for Mr Hubery to have offered Mr Velkovski assistance was the point at which he returned to the site office to ask for help. I consider that Mr Hubery ought to have known that the trolley would assist in conveying the dowel rods to Mr Velkovski’s truck, but that such a trolley would be of no assistance in the safe removal of the dowel bars from the confined space. This was a further opportunity for Mr Hubery to have offered practical assistance to Mr Velkovski, which would likely have reduced his risk of injury. In cross-examination, Mr Hubery said that he might have stopped a person putting themselves in harm’s way, but it is apparent that, on this occasion, he did not. Given Becon’s commitment to safety on its site, I consider Mr Hubery ought to have done more to minimise the risk of injury to Mr Velkovski.
127 Despite the failure by SRG to co-ordinate the safe collection of the dowel bars, it was Becon who had the immediate ability to require the dowel bars to be placed in a safe and accessible area, or assisted in, or delayed, the collection of the dowel bars until they were in a safe state to be moved. Such failure also contributed to Mr Velkovski suffering his injuries.
Did AV19 contribute to Mr Velkovski’s injuries?
128 As Mr Velkovski’s employer, AV19 had a common law duty to take reasonable care for the safety of its employees, including Mr Velkovski. Such a duty is non-delegable.
129 Further, a statutory duty was imposed on AV19 pursuant to regulations 3.1.1, 3.1.2, and 3.1.3 of the Manual Handling Regulations contained within the Occupational Health and Safety Regulations 2007. These regulations require an employer to:
(i) so far as is reasonably practicable, identify any task by an employee involving hazardous manual handling;[6] and
[6]Regulation 3.1.1
(ii) either:
(a) eliminate the risk or, if that is not reasonably practicable, then to
(b) reduce the risk so far as is reasonably practicable.[7]
[7]Regulation 3.1.2
130 Further, an employer must ensure that any measures implemented to control manual handling risks are reviewed and, if necessary, revised.[8]
[8]Regulation 3.1.3
131 As a truck driver, Mr Velkovski said that most of the work he performed was the delivery of goods, which were generally loaded or unloaded by either a crane or a forklift. However, he said there were also times where he was required to manually handle items. Although such items were usually light, Mr Velkovski said that it was not out of the ordinary for him to lift items weighing approximately 25-30 kilograms. Mr Velkovski also accepted it was probable that he had manually handled bundles of dowel bars prior to 8 April 2013.
132 As director of AV19, Mr Velkovski accepted, and was aware, that he had an obligation under the Occupational Health & Safety regulations, to assess manual handling risks, and to ensure a safe system of work for his employees.
133 Mr Velkovski said that AV19’s employees were educated in safety, but he could not then identify any formal training provided to his employees in the two years prior to 8 April 2013. He said that no written documents or policies were provided to employees in relation to the procedure to be followed if there was a problem on site. Instead, Mr Velkovski, as director of AV 19, told his employees to call Mesh & Bar if they experienced any problems.
134 Mr Velkovski said that, when he left the Mesh & Bar depot on the morning of 8 April 2013, as an AV19 employee, he had no knowledge as to the state of the dowel bars. In cross-examination, Mr Velkovski accepted that, when AV19 sent an employee to a work site, it could not just assume that the site would be safe for its employee. Further, Mr Velkovski accepted that, on 8 April 2013, AV19 did not provide him with any co-workers or mechanical assistance to enable the dowel bars to be moved safely.
135 Mr Velkovski openly conceded that he decided to move the dowel bars himself, upon being told that no one was available at that time to assist him. In so doing, he recognised this activity carried with it a risk that he would suffer injury, but said that he just wanted to get the job done. Mr Velkovski conceded that he could have called Mesh & Bar to inform them that the bars could not be safely collected, but that he failed to do so.
136 The very open and honest concessions made by Mr Velkovski clearly raised the issue of contributory negligence by Mr Velkovski in the course of his injury. However, as the High Court enunciated in Andar Transport Pty Ltd v Brambles Limited,[9] the question as to whether or not there is contributory negligence by an employee of a company, where that employee is also the director of the company, is separate to and distinct from the question as to whether or not there is also negligence by the company in exercising its duty of care towards the employee. If both are found to have been negligent, the question is then to what extent is it just and reasonable to apportion liability.
[9][2004] HCA 28
137 Andar involved a worker who was injured whilst delivering a trolley of clean linen to a hospital in Kew. The worker suffered an injury to his lower back when he attempted to pull a trolley from the back of his truck, which had become jammed against another trolley. The trolley had been loaded at the respondent, Bramble’s laundry. The worker was employed by the appellant, Andar. He was one of two directors of that company, and, in that role, was responsible for the day-to-day operations of the company. Andar had a contract with Brambles for the supply of its linen to hospitals around Melbourne.
138 The worker succeeded in a negligence claim against Brambles, but was held to be 35 per cent contributorily negligent. Brambles had joined Andar as a third party to that claim. One of the issues for determination in the High Court was whether or not Andar could be held liable to the worker, in his capacity as an employee, for a breach of duty committed by him in his capacity as a director.
139 The High Court held that Andar had failed to take reasonable steps to develop and maintain a safe system of work for its employees in relation to the loading and unloading of line trolleys.
140 The High Court then went on to consider Andar’s submission that it should avoid paying contribution on the basis that the “causative fault” of the worker was “precisely equivalent” to the fault of Andar, and that, as there had been a finding of contributory negligence against the worker at trial, Andar should not be required to make any further contribution. This argument was rejected. The Court held that the liability of the worker, in his capacity as an employee of Andar, did not exempt Andar from liability in its capacity as an employer, as they were distinct and separate legal entities.
141 Kirby J observed that Andar owed a duty to the worker, which was separate to and distinct from the duty owed to him by Brambles. Further, the worker had obligations in respect of his own safety. It was noted that :
“Obviously, such responsibilities overlapped in factual and evidentiary terms. But in law they are distinct and must be kept so.”[10]
[10]Andar at [74]
142 The High Court also held that Andar could not avoid liability on the basis that it had inherited a defective system of work. The Court then referred the matter to the Victorian Court of Appeal for it to apportion contribution between the parties.
143 I note that the facts in Andar’s case are distinguishable from those in the present case, on the basis that the negligence there related to an established system of work to which the worker was exposed on a daily basis. In those circumstances, it was clear that Andar, at any time, could have assessed the process of unloading trolleys, and taken steps to ensure that a safe system of work was established and maintained for its employees.
144 In this case, whilst being cross-examined, Mr Velkovski became very confused as to what was for him an artificial distinction between his role in this case as the plaintiff, and his position as sole director of the third party to the proceedings. Notwithstanding that confusion, the difference between the facts in this case and those in Andar is highlighted by the following passage in his evidence :
Q:“And is it correct to say that AV19 did nothing in relation to any of those matters concerning this lift that you did?---
A:I don't know what - what to say, how to answer this.
Q:Okay. Well, AV19, the company, did not assess the risk of lifting these bars, didn't do anything to eliminate the risk of lifting these bars?---
A:Well, look at it like this, AV19 wasn't present when this was happening.”
145 Although Mr Velkovski had obvious difficulties grasping the somewhat artificial distinction between the two roles, such a distinction is necessary for the determination of AV19’s responsibility for Mr Velkovski’s injuries.
146 AV19 was under a duty to take reasonable care to provide a safe system of work and safe conditions of work. This duty is imposed upon AV19 by virtue of its status as an employer. This duty is imposed on all employers, however the business is formed or structured.[11] The duty is not imposed on the directors, but the company itself.
[11]Andar at [34]
147 Mr O’Meara submitted that, whilst AV19 is legally separate from the plaintiff, AV19 is, in a factual and evidentiary sense, the plaintiff. He submitted that, absent the plaintiff, AV19 is a piece of paper that cannot do anything, as it acts, and can only act through the plaintiff, which in this case is Mr Velkovski.
148 Mr O’Meara submitted that it is not a case where the law has become so divorced from reality that the status of Mr Velkovski and AV19 as separate legal personalities:
i. is such that they could each do whatever they like independently of the other;
ii. and that anything done in this case, was done only by Mr Velkovski.
149 In contrast to this submission, Mr Smith and Mr Masel submitted that Mr Velkovski, as the sole director of AV19 on site, was able to see the confined area in which the dowel bars were located and, in those circumstances, AV19 had a non-delegable duty to protect its employee from suffering injury.
150 It submitted that, in such circumstances, AV19 had an obligation to perform a hazardous manual handling risk assessment, and ought to have eliminated the risk of injury by either directing its employee to wait for assistance, by breaking up the bundles of dowel bars with pliers and moving them piece by piece, or by contacting Mesh & Bar to advise them that the dowel bars could not be safely accessed.
151 I consider the appropriate balance to be somewhere between these two positions. To assist in apportioning responsibility as between AV19 and Mr Velkovski in his capacity as employee, it is helpful to consider what AV19 should have done had another of its employees been sent to the Emblem Apartments site on 8 April 2013 instead of Mr Velkovski.
152 Mr Velkovski accepted that AV19 had an obligation to keep its employees safe, and said that he discussed such health and safety issues with his employees in person, rather than providing them with an actual written policy. I consider this to be understandable, in circumstances where English is Mr Velkovski’s second language.
153 In relation to safety training, Mr Velkovski said that “all the drivers are educated in safety, in the safest way in order to execute their jobs.” He was not asked how often this training was given and in what form it took. In the absence of any such evidence, I am not satisfied I should make a finding that the safety training of AV19 was inadequate.
154 Mr Velkovski said that he had meetings with his staff, at which time he instructed them in relation to manual handling. Mr Velkovski was not cross-examined as to the frequency of these meetings, their duration, or their content. In the absence of any such evidence, I am not satisfied I should make a finding as to the inadequacy of the information or instruction provided in the course of these meetings.
155 Mr Velkovski said that he orally instructed AV19’s drivers to call Mesh & Bar if they experienced any problems with a delivery or a collection.
156 Mr Velkovski said that whilst all reasonable requests of the customer would be accommodated, AV19 drivers were aware that the discretion to accept or refuse a request ultimately lay with the driver, such that, if the driver considered a request to be unsafe, they could simply refuse the request.
157 Mr Velkovski said that, if another AV19 driver had refused to move the last dowel bars on the basis they considered the task to be unsafe, and had subsequently called Mesh & Bar to inform them, it would not have been a problem, as such a task could have waited until the next time.
158 In closing submissions, Mr Masel submitted that AV19 had failed to devise a hierarchical process to assess or deal with risk and so failed to instruct its drivers accordingly.
159 I do not accept this submission. I am satisfied that AV19 trained its employees in safe manual handling and the importance of safety.
160 I am also satisfied that AV19 drivers were instructed to contact Mesh & Bar in the event they experienced a problem in relation to a delivery.
161 Finally, I am satisfied that it was ultimately Mr Velkovksi who failed to take care for his own safety, despite AV19 having educated him as to the importance of safe manual handling, and having instructed him to call Mesh & Bar if there was a problem with a pick up. In the circumstances of this case, I am not satisfied that AV19 failed to exercise reasonable care for its employees. Accordingly, it has not been established that AV19 breached any common law duty owed by it to Mr Velkovski.
162 In addition to AV19’s duty at common law, it also had obligations under the manual handling regulations. There is no evidence that the situation with which Mr Velkovski was confronted in this instance had arisen before, and, for that reason, I accept the position put on behalf of AV19 that the placement of the dowel bars in the particular confined space at the Emblem Apartments site was somewhat unique.
163 However, whilst not an everyday task, it was not unique for AV19 employees to manually handle weights of up to 25-30 kilograms. As such, AV19 had a statutory obligation to identify that activity as a hazardous manual handling task, and to then seek to control the task by either eliminating the risk or by reducing the risk so far as was reasonably practicable.
164 The defendants submitted that AV19 breached the manual handling regulations, on the basis that AV19 effectively stood beside Mr Velkovski at the time he saw the dowel bars in the confined space, yet did not perform a manual handling risk assessment specific to the task.
165 I do not accept this submission. I consider it to be unrealistic, and beyond that which was contemplated by the High Court in Andar. As stated above, I consider that AV19’s obligations should be assessed as if Mr Velkovski was another of its employees, who attended the Emblem Apartments site, and was confronted with the situation Mr Velkovski faced.
166 To satisfy its statutory obligations, AV19 was required to identify the potential manual handling hazard of moving Mesh & Bar products in the event that mechanical lifting aids were unavailable. In considering all of the evidence, I am not satisfied that AV19 specifically considered this manual handling task, nor did it take measures to control such a task. As such, I am satisfied that AV19 breached the statutory obligations it owed to Mr Velkovski.
167 The next matter for consideration is whether or not that breach of AV19’s statutory duty was a cause of Mr Velkovski’s injury. It is apparent from his evidence that Mr Velkovski decided for himself that he did not want to cause any trouble on site, as he simply wanted to complete the job. In the event that AV19 had conducted a risk assessment, I am not satisfied, having regard to Mr Velkovski’s concessions,[12] that he would have acted any differently when faced with those particular circumstances. Put simply, it would not have made a difference to what Mr Velkovski actually did. As such, I am therefore not satisfied that the breach of the regulations was a cause of Mr Velkovski’s injury.
[12]As detailed in paragraph 135 above
Apportionment between the parties and the relevant authorities
168 Having been satisfied that SRG and Becon were each responsible, in part, for the damages suffered by Mr Velkovski, it is now necessary for me to apportion contribution between those two entities.
169 Section 23B (1) of the Wrongs Act 1958 permits a tortfeasor liable in respect of any damage suffered by another person to recover contribution from another person liable in respect of the same damage.
170 Section 24(2) of Wrongs Act provides that the amount of contribution recoverable from any such persons will be the amount which the court determines is just and equitable, having regard to the extent of that person’s responsibility for the damage.
171 In considering contribution, the court has a power “to exempt any person from liability to make contribution.”[13]
[13]Andar at [61]
172 Further, it is recognised that in determining what is just and equitable, a court shall not lightly be constrained by judicial pronouncement.[14]
[14]Andar at [61]
173 In considering apportionment between two or more parties, it is necessary to make a comparison between their degrees of culpability. Such a task is not to be approached with a mathematical calculation, or formula. Rather, it involves questions of balance and relative emphasis.[15]
[15]Papadopoulos v MC Labour Hire Services (No.4) (2009) 24 VR 655 at [79]
174 In a unanimous judgment of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd,[16] it was said that when considering apportionment between parties in a work accident claim:
“A finding on a question of apportionment is a finding upon a question, not of principal or of positive findings of fact or law, but of proportion of balance and relative emphasis and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be difference of opinion by different minds.”[17]
[16][1985] 59 ALJR 492
[17]Ibid at [493]-[495] (citations removed)
175 It further stated that:
“It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, importance.”[18]
[18]Ibid at [494]
176 In Hoad v Peel Valley Exporters Pty Ltd,[19] Harrison J, in the New South Wales Supreme Court, considered what, if any, contribution should be ordered against an employer whose employee worked for an occupier, whose negligence resulted in injury to the worker. Mrs Hoad sustained an injury to her back whilst lifting a box containing meat products that she was required to place on a conveyor belt, located under a bench. At the time of the incident, Mrs Hoad was working at an abattoir, whose premises were occupied by the defendant. Mrs Hoad had been sent to work at the abattoir by her employer, a company related to the defendant.
[19][2008] NSWSC 981
177 Harrison J was satisfied that Mrs Hoad had suffered her injury as a result of an unsafe system of work, which required her to repetitively lift boxes of meat weighing as much as 27 kilograms.[20]
[20]Hoad at [111]
178 Having found the system of work to be unsafe, Harrison J then turned to the apportionment of contribution as between the defendant and Mrs Hoad’s employer. In comparing the respective liabilities of an employer and an occupier of premises at which the employee is required to work, Harrison J identified the following factors as offering some guidance:
“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 employer’s 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?”
179 In considering these matters, Harrison J noted that, unlike other labour-hire company cases, the facts of this case were such that the employer was not “wholly independent and at arm’s length from the occupier”.[21] In particular, he considered that whilst working at the defendant’s premises, Mrs Hoad was surrounded by employees of her employer, some of whom had a supervisory role or had the authority to tell Mrs Hoad and her co-workers what to do.[22] As a result, Harrison J expressed the opinion that on any given day during her employment, Mrs Hoad would have had great difficulty “locating any person who was solely identifiable as a representative of the defendant alone”.[23] It was for this reason that Harrison J held that “the application of the factors enumerated above is to some extent artificial and not productive of a meaningful or informative conclusion”.[24]
[21]Ibid para 153
[22]Ibid para 137
[23]Ibid para 154
[24]Ibid para 154
180 Harrison J also held that, despite the employer being ultimately responsible for the unsafe system of work that had caused Mrs Hoad’s injuries by virtue of its non-delegable duty of care, it was the defendant who had actual control over that system of work, and not the employer. Furthermore, Harrison J considered that the employer had a very limited ability to implement or demand changes to the defendant’s system of work.[25]
[25]Ibid para 156
181 Noting that the relationship between the employer and the defendant had “all the hallmarks of a convenient arrangement”, Harrison J ultimately held that the defendant was primarily liable for the plaintiff’s injury, and found that a just and equitable apportionment of responsibility for Mrs Hoad’s damages was 75 per cent to the defendant and 25 per cent to the employer.[26]
[26]Ibid para 159
182 I note that, similar to Andar, the negligence alleged in Hoad related to a system of work, rather than a one off incident.
183 In this current proceeding, I gain little assistance from the questions posed in Hoad. This is not a case in which a labour hire agency has sent its employee to work at an occupier’s premises. The questions posed in Hoad do not contemplate the involvement of a party such as SRG, who was responsible for Mr Velkovski coming on to Becon’s site to collect its goods.
184 The 14 factors posed in Hoad were considered by Beach J in Papadopoulos v MC Labour Hire Services Pty Ltd and Concept Hire Limited.[27] In that case, Mr Papadopoulos’ employer, the first defendant, was a labour hire firm, who had employed Mr Papadopoulos at different periods of time, including one occasion in which he injured his right knee in the course of his employment whilst climbing down a ladder. The first defendant discouraged Mr Papadopoulos from lodging a WorkCover claim in respect of that knee injury, and was aware that Mr Papadopoulos had suffered this prior knee injury, as well as a pre-existing lower back condition.
[27](2009) 24 VR 665
185 The first defendant then hired Mr Papadopoulos to perform work for the second defendant at a building site in St Kilda Road, Melbourne. During the course of such employment, Mr Papadopoulos suffered injury to his lower back, whilst carrying heavy rolls of waterproofing membrane.
186 Mr Papadopoulos alleged negligence and breach of the manual handling regulations against the second defendant, on the basis that it had required him to lift the heavy roll and had failed to provide him with a trolley. He made similar allegations in respect of his employer, but, in addition, alleged that his employer had failed to prepare a return to work plan following his knee surgery, in accordance with its statutory obligations.
187 At the damages trial, the jury delivered a verdict in favour of Mr Papadopoulos on the basis that the first and second defendants had been negligent and/or breached their statutory duty.
188 Each defendant claimed contribution from the other pursuant to Part IV of the Wrongs Act. As such, it was necessary for Beach J to consider what proportion of contribution was just and equitable, having regard to the extent to which responsibility could be attributed to each defendant for the damage. He summarised the task as follows:
“The two principal factors are the degree to which each has departed from the standard of conduct required of them and the relative causal potency of each defendant’s acts.”[28]
[28]Ibid [76]
189 Beach J held that the causal potency of the second defendant’s acts were much greater than the causal potency of Mr Papadopoulos’ employer. However, he noted that the departure from the standard of care expected of the first defendant, as Mr Papadopoulos’ employer, was greater than that of the second defendant, as it was a departure that occurred over a protracted period of time. Beach J then noted that the first defendant had very limited responsibility in respect of the actual events that occurred on the day that Mr Papadopoulos was injured lifting a heavy roll.
190 To assist in assessing contribution, Beach J then considered the 14 questions posed by Harrison J in Hoad. In so doing, Beach J noted that the second defendant controlled the premises and supplied the equipment which Mr Papadopoulos was required to use in performing his work, as well as being wholly responsible for devising and maintaining the system of work. Therefore, the act of negligence of the second defendant was a causal one. However, Beach J noted that both defendants bore a responsibility for Mr Papadopoulos’ training. He then noted that the first defendant did not have an ability, independent of the second defendant, to avert the hazard caused by lifting the roll.
191 Beach J commented that, if not for the first defendant’s significant negligence over a prolonged period prior to the date Mr Papadopoulos injured his back lifting the roll, contribution might have been assessed in the range of 0 per cent to 15 per cent. However, Beach J considered that, in such circumstances, it was appropriate to apportion contribution between the defendants at 50/50.
192 In closing submissions, Becon referred me to the decisions of Stevens v Brodribb Sawmilling,[29]and Leighton Contractors Pty Ltd v Fox & Ors.[30]
[29](1986) 160 CLR 16
[30][2009] HCA 35
193 In Stevens v Brodribb Sawmilling, Brennan J described the obligations imposed on principals, in respect of independent contractors. He stated that :
“An entrepreneur who organizes an activity involving a risk of injury to those engaged in it is under a duty to use reasonable care in organizing the activity to avoid or minimize that risk, and that duty is imposed whether or not the entrepreneur is under a further duty of care to servants employed by him to carry out that activity. The entrepreneur's duty arises simply because he is creating the risk and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors' respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”[31]
[31]Ibid [2]
194 In Leighton Contractors, the High Court considered the responsibility of parties involved in the construction of the Hilton Hotel in Sydney, in circumstances where Mr Fox suffered an injury whilst working on-site. Leighton Contractors was the principal contractor on the building site. It had contracted with Downview Pty Ltd (“Downview”) to perform concreting work on site. Downview had then sub-contracted with Mr Fox’s employer to perform the concrete pumping. Whilst cleaning out the concrete pipes with compressed air, the end pipe swung around and struck Mr Fox in the head.
195 Mr Fox claimed damages against his employer, as well as Leighton Contractors and Downview. It was alleged that the concrete pipe should have been secured to the waste bin before the pipe cleaning process commenced. Mr Fox’s employer was in charge of the concrete pumping operation and it was accepted that no person associated with Leighton Contractors or Downview gave any directions in connection with the operation.
196 The High Court observed that, in the construction industry, it is common for the principal contractor to arrange for works to be carried out by sub-contractors, rather than by employing its own labour force, one advantage being that the principal contractor does not incur obligations that the law imposes on employers.
197 The High Court held that Leighton Contractors and Downview were not liable for the negligent acts of its independent contractor. It specifically held that Leighton Contractors was not obliged to provide OHS training to Mr Fox, who had attended on-site to perform a specialised activity which Leighton Contractors had contracted with Downview to perform.
198 The High Court held that Downview was also not liable for Mr Fox’s injuries, in circumstances where it had engaged a competent contractor, and had placed the activity of concrete pumping in the hands of that contractor. It was a specialised, self-contained operation which did not require co-ordination with other activities on site.
199 I consider that Leighton Contractors is of limited assistance to me in considering apportionment between the parties in this case, as neither Mr Velkovski nor AV19 had any contractual relationship with either Becon or SRG. Further, the collection of the dowel bars, was not a specialised activity, but was instead a manual handling task, for which both Becon and SRG were, in part, responsible for the co-ordination.
Conclusions on contribution
200 Becon sought to establish a collaborative worksite, and, in considering the structures and policies it had in place, it was reasonable for Becon to have expected that SRG would safely co-ordinate the safe collection of the goods for which it was responsible on-site, and to have communicated with Becon regarding the collection of such goods. It was also to have been expected that Becon would direct and coordinate work in a safe manner, including in respect to the safe removal of goods from the site.
201 SRG knew that the dowel bars were to be collected, and I am satisfied that it was aware the bars were in an unsafe state for removal.
202 Becon also knew, on the morning of 8 April 2013, at the latest, that the dowel bars were to be collected, and I am also satisfied that it was aware the bars were in an unsafe state for removal.
203 Despite such knowledge, neither assessed the potential risk presented by the removal of the dowel bars from that site. Nothing was done to ensure that the dowel bars were packaged and available at the loading dock in order to be loaded mechanically with the crane. I consider the causal potency of both Becon and SRG in respect of such a failing to be significant.
204 The situation was made worse when Mr Velkovski sought assistance from Becon to remove the dowel bars, and the response was the inadequate provision of a trolley. This failing heightened Becon’s responsibility for Mr Velkovski’s injuries.
205 In all the circumstances of the case, I consider it just and equitable to apportion responsibility for Mr Velkovski’s damages as follows: SRG – 40 per cent and Becon – 60 per cent.
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