Victorian WorkCover Authority v Centro Property Management (Vic) Pty Limited

5IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA
COMMON LAW DIVISION

MAJOR TORTS LIST

No. S CI 2011 02734

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
CENTRO PROPERTY MANAGEMENT (VIC) PTY LIMITED (ACN 054 494 352)	Defendant

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JUDGE:	BELL J
WHERE HELD:	MILDURA and MELBOURNE
DATES OF HEARING:	23 and 24 JULY 2013 (Mildura), 29 and 30 JULY 2013 (Melbourne)
DATE OF JUDGMENT:	1 NOVEMBER 2013 (Melbourne)
CASE MAY BE CITED AS:	Victorian Workcover Authority v Centro Property Management (Vic) Pty Limited
MEDIUM NEUTRAL CITATION:	[2013] VSC 587

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NEGLIGENCE – workplace injury – employee of security company performing guard duties at shopping centre – third party statutory indemnity sought against centre operator for compensation paid in respect of injuries – scope of duty of care owed by centre operator to security company’s employee – whether relationship analogous to employment – centre operator in control of system of work – whether unsafe – whether centre operator liable to pay damages to security company’s employee in respect of injuries – proportionate liability – assessment of contributions of centre operator and security company – Accident Compensation Act 1985 (Vic) s 138(1), (3).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr C Blanden SC with Ms E Hill	Ms C Cunningham, Wisewould Mahony Lawyers
For the defendant	Mr A Donald	Ms K Dell’Oro, Meridian Lawyers

HIS HONOUR:

INTRODUCTION

Amanda Taylor was employed by Steve Dornan Pty Ltd (trading as Superior Detection) as a security guard. Superior Detection was engaged by Centro Property Management (Vic) Pty Limited to provide security services at its shopping centre in Mildura. It assigned her to that work. On 1 March 2009 and during the course of her employment for Superior Detection, she was injured when removing alone a large barrier which Centro used across a concourse at the centre.

The Victorian Workcover Authority has paid, and continues to pay, compensation under the Accident Compensation Act 1985 (Vic) to Ms Taylor in respect of her injuries. In this recovery proceeding under s 138(1) of that Act, it claims indemnity against Centro as a third party in respect of the amount of that compensation.

Under that provision, Centro will have to indemnify the VWA only if Ms Taylor’s injuries were caused in circumstances creating a liability in Centro to pay damages. The VWA contends, and Centro disputes, that Centro is liable to pay damages under the common law because the injuries were caused by its negligence towards Ms Taylor or, alternatively, under pt IIA of the Wrongs Act 1958 (Vic) because it failed to take reasonable care of her as an occupier. This is the first of two questions which require determination.

If Centro is so liable, the amount of the indemnity which must be paid to the VWA by Centro as a third party is set out in the formula specified in s 138(3)(b). By that formula, the amount turns critically on factor ‘X’, which is:

the extent, expressed as a percentage, whereby the third party’s act, default or negligence caused or contributed to the injury …

The VWA contends that Centro’s contribution should be assessed as 80 per centum, and that is factor X, because Centro designed the system of work and controlled and managed the workplace. Centro denies any contribution and, in the alternative, contends that contribution should be assessed as 50/50 between it and Superior Detection. This is the second question.

EVIDENCE

VWA

Amanda Taylor

Ms Taylor began working as a security guard for Superior Detection on 3 October 2008. She was regularly deployed at Centro. As part of her duties, she was required to remove and erect two security barriers that folded across a concourse at the centre to prevent afterhours public access to the area behind. The barriers were identical, each comprising four panels, one of which locked on one side of the concourse to a wall near a shop known as Noni B and the other on the other side of the concourse to a wall near Woolworths. The free ends of the barriers were locked together in the middle of the concourse.

Ms Taylor stated that she was shown once how to install and remove the barriers by other guards employed by Superior Detection: for installing them, by a guard named Muttiy; for removing them, by the team leader Robert Goldrick. She was not given any other instruction, either written or verbal, by Superior Detection or Centro, about how to use them. I accept this evidence.

In an affidavit dated 14 December 2009 (nine months after the accident), Ms Taylor gave this description of the removal process:

Each morning I had to unlock the two steel mesh barriers, which were locked together at the point at which they met, then fold them inwards in a concertina folding movement, then unlock the other end of the steel mesh barrier from the wall and then wheel the folded mesh barrier to a different part of the premises where it was not in the way of customers.

In an account given on 31 October 2012 (three and a half years after the accident) to VWA’s consultant engineer and ergonomist, Mark Dohrmann, Ms Taylor said that, on the day of the accident, she progressively folded the panels of the barrier towards the wall, fastening one panel to the other with T-bar latches as she went along. The accident happened when she was drawing the last of the four panels in – the one which needed to be secured against the third.

In examination in chief in this court on 29 July 2013 (nearly four and a half years after the accident), Ms Taylor gave this description of the process which she usually followed to remove the barriers: unlock the Noni B-side barrier from the wall, partially concertina the barrier to the middle, unlock the middle, unlock the Woolworths-side barrier from the wall and then return fully to concertina each barrier together before moving them to the storage site. In concertinaing the barriers, Ms Taylor used her right hand to push each panel and her left to stabilise the structure.

Under cross-examination on the same day, Ms Taylor gave a slightly different version of the process which she usually followed. She said she would unlock the Noni B-side barrier from the wall, then she would detach the Woolworths-side barrier before concertinaing the panels together and unlocking the middle. However, she later reverted to her initial description (ie, unlocking the middle before unlocking the Woolworths side). Both descriptions had Ms Taylor unlocking the Noni B-side first and then concertinaing the barrier to the middle.

Ms Taylor said in oral evidence that the accident happened on a morning shift as she was removing the barriers. She recalled trying to fold the Noni B barrier into the concertinaed position. She said that, to her memory, she had not fastened any of the T-bar latches, but immediately before the barrier fell she was trying ‘to actually interlock the barriers’. She described the panels as being semi-folded. The barrier fell away from her onto the folds of the partially concertinaed barrier where the hinges are (as opposed to landing flat on its mesh face). Her hand was caught between two of the panels, but she managed to pull it out before she was dragged to the ground. She suffered a laceration to her right hand and subsequent shoulder and psychological issues.

Ms Taylor’s in-court descriptions of removing the barriers differed from those given in her affidavit and recounted in Mr Dohrmann’s report. The previous statements indicated that the first thing she did was to unlock the barriers from the middle, then concertina each one inwards towards, and unlock them from, the wall. That was not her in-court evidence. Ms Taylor said she could not explain the differences between her in-court evidence and previous statements. However, she maintained that her in-court evidence was accurate and that the accident happened in the middle of the concourse, after she had detached the Noni B barrier from the wall. She also maintained her evidence that the accident happened before she had fastened all of the four panels together.

I do not accept Centro’s submission that, in view of the inconsistencies in Ms Taylor’s evidence about the process that was followed and the latching of the panels together, she should be regarded as an unreliable witness. She impressed me in the witness box. I thought she was honestly trying to assist the court. Some years have passed since the accident happened. The inconsistencies concern the details of the process which she followed. They have assumed great significance in this trial. The issues had not been put to her at this level of detail previously when her memory would have been fresher. I do not accept that she would be likely to remember these details now. She was injured in the accident, and she was the only person present. I think it is very understandable that her memory is a little hazy about what precisely occurred.

On Ms Taylor’s evidence, the accident happened at a point in the removal process when the barrier was free-standing on the concourse at both ends. At least the fourth panel was unfolded and unfastened when the accident happened. The barrier was not fully fastened or in a locked position at that time. This much of her evidence about what happened was clear and compelling.

Ms Taylor gave evidence of making a verbal complaint to her employer, Mr Dornan, and Centro’s Operations Manager, Mr Clark, in late 2008 or early 2009 about the barriers being bent and buckled. She could not remember whether there were one or two separate complaints, or whether the complaints included mention of the missing wheel. According to Ms Taylor, Mr Clark inspected the barriers and asked her to demonstrate the difficulties she was having with the barriers, which she did. No changes were made. She could not remember whether she made a written complaint. Mr Clark refuted this evidence and I have no rational way of resolving the conflict. I will find that this complaint and meeting have not been proven.

Workers at the centre were required to fill out daily inspection sheets. Ms Taylor was shown some of the daily inspection sheets which she had filled out. These contained a checklist of the duties to be completed during each shift and a section in which to report incidents. On the particular sheets shown to her, Ms Taylor had recorded, among other things, a leaking hose and blown light bulbs. She agreed this was indicative of the level of detail which she saw fit to report. She also agreed that, if a castor wheel were missing, one would expect it to be recorded in the daily inspection sheets. It was not.

Ms Taylor said the barriers were difficult to use because they were bent and twisted and the Noni B barrier had a castor wheel missing. There was insufficient evidence of this damage and the missing wheel and Ms Taylor could well have been mistaken in this respect. She said the barriers were difficult to manoeuvre because of their height in relation to the wheels. I accept this evidence. It is consistent with the size, weight and design of the barriers, including the relatively small (and not offset) wheels. Under cross examination, Ms Taylor agreed with a proposition put to her that the accident was caused by the barriers being damaged. I do not accept that the accident was caused by the barriers being damaged. For reasons which I will later give, it was caused by Centro’s unsafe system of work.

Geoffrey Pemberthy

Mr Pemberthy was an employee of Superior Detection in the years 2009 and 2010. When it ran into financial difficulties in 2010, he formed a company called Verpen Security Pty Ltd which took over the contract to provide security personnel at the shopping centre and it did so until June 2013.

Mr Pemberthy described the barriers and the process of installing them at night and removing them in the morning. When asked whether there were any difficulties associated with performing these tasks, specifically in 2009, he said that he ‘always found them awkward’. As to the concertinaing process, he said ‘[i]f you were careful they wouldn’t fall over. You just had to make sure you concertina[ed] them up together because if you stretched them out too far they would fall over’. He said the risk of the panels falling over ‘was always there’ and for the reason that ‘[t]hey were just unstable’. When asked whether there was any way to stop the barriers from falling over, he said there was not. When his company later took over from Superior Detection, he ‘always told [his] guards if they were going to fall over, let them go’. The only way to minimise the risk of the barriers falling over was ‘to be very, very careful’. He also said that the security personnel were only given 10 minutes to remove the barriers in the morning ‘and it took every bit of it’.

Mr Pemberthy said he was aware he was aware of ‘only one’ incident in which the barriers had fallen over. It involved ‘[o]ne of the male guards [who] was putting [the barriers] away [when] they toppled over’. As to Ms Taylor’s accident, he was not present when it happened but became aware of it the following day.

Mr Pemberthy said that complaints about the barriers had been made to Centro. These related to ‘[l]oose screws and a guard cutting his hand on the loose screws’. The subject of the barriers was also brought up at weekly security meetings and monthly occupational health and safety meetings. The issue was raised ‘in the early stages’ but less and less as time went by.

Mr Pemberthy said that, when his company took over the contract, the barriers remained the same and the system of work was not changed. When asked whether Centro had provided any training, direction or instruction in respect of the barriers when Mr Pemberthy’s company took over the security contract, he said he ‘already knew about it so [he] went around and showed the guards exactly what had to be done’. In the last six months of Verpen Security’s contract, Mr Pemberthy refused to use the barriers because ‘one of the brackets broke’. Thereafter new barriers were brought in which were more stable because they had ‘wider feet’. In cross-examination, it was put to Mr Pemberthy that the true reason why the barriers were replaced was that their configuration needed to be changed to allow access to public lavatories afterhours. Mr Pemberthy agreed, but maintained that it was also because of the broken bracket.

It was put to Mr Pemberthy that, for a period of two and a half years after his company took over the security contract, he had regarded the barriers and the system for their installation and removal as safe because otherwise he would have instructed his employees not to perform the task. He said he had discussed safety issues with Centro but agreed he had not instructed his staff to desist from performing the task.

Mr Pemberthy was taken to a daily inspection sheet in which he had recorded in early 2009 that the barriers’ locks needed attention. He agreed that this example was indicative of the level of detail which Centro required in the daily inspection sheet to alert them to problems with the plant and equipment. He said that ‘nothing would be done if [he] didn’t record it’.

Mr Pemberthy could not recall making a verbal or written complaint before 1 March 2009 to either Mr Clark or Mr Dornan about the use or manoeuvrability of the barriers. He agreed that, if he had a complaint about the barriers’ use or manoeuvrability, the first person he would have complained to was Mr Dornan because he regarded him as responsible for the system of work. He ‘didn’t think it was [his] position to go complaining on [Mr Dornan’s] behalf’.

It was suggested to Mr Pemberthy that, in May 2010, he told a loss assessor that he could not recall any problem with the use or manoeuvrability of the barriers. He said he could not remember saying that and the barriers had ‘always been a problem’ and ‘unstable’.

Contrary to the submissions of Centro, I do not consider Mr Pemberthy’s evidence to be unreliable.

Nathan Collins

Mr Collins was a Superior Detection security guard at the shopping centre from approximately August 2008 to April 2010. He had also worked for the previous security contractor, Fort Security.

In regard to removing the barriers, Mr Collins described unlocking them from the middle, concertinaing them to the walls, unlocking them from the walls and then moving them to the storage site. He could not remember who told him to follow this process. He said that someone might have shown him when he started with Fort Security, but he could not remember if he was shown during the Superior Detection induction. He said ‘if there was a new staff member on you would have to sort of show them yourself’.

When asked whether there were any difficulties in dealing with the barriers, Mr Collins said that at first there was not, but as time went on they became difficult to move. He said that a castor wheel did not move properly so that ‘when you would go to turn it it would feel uneasy’. There were also problems with the T-bar latches which made the barriers unstable. The middle lock and the Woolworths-side wall lock were damaged. He recalled an incident where one of the barriers tipped over as he was trying to move it from the storage site. He had trouble with one of the T-bar latches before the barrier tipped. He could not recall when this incident occurred, other than that it was on a night shift, and conceded that it may have been after 1 March 2009. He could not recall making a written report about the incident because he thought it was the result of his ‘own stupidity’.

When asked whether he made any complaints or reports about the barriers, Mr Collins said he had recorded that the locks were damaged in the daily inspection sheet and saw Mr Clark personally about the locks. Mr Collins agreed this was ‘the level of detail that [he] either chose to, or [was] required to’ use in the daily inspection sheets. However, he could not remember making any verbal or written complaints about the instability of the barriers to either his employer or Centro. He agreed that at no time before 1 March 2009 did he make a verbal or written complaint to Mr Dornan about the use or manoeuvrability of the barriers. Mr Collins said that he did not recall the barriers being bent or buckled.

William Bolitho

Mr Bolitho was employed as a security guard by Superior Detection in 2008 and 2009 and later by Verpen Security. Due to undergoing electroconvulsive therapy, his memory of the period between 2008 and early 2009 was ‘very vague’.

Mr Bolitho described the barriers as ‘unstable’ and ‘difficult to deal with’. He said that ‘[t]he issue was when you unlock[ed] them of a morning and you concertinaed them, you had to be careful handling them because of their height and small castor wheels’. In addition, when transporting the barriers, the vibration from the castor wheels would cause the T-bar (or ‘T-piece’ as he called it) to become unlatched and the screens would open out. On one occasion, when he was transporting the barriers to the storage site, he tried to turn one and it toppled over.

Because of his defective memory, Mr Bolitho was unable to recall whether he had received any instructions while working for Superior Detection on how to concertina the barriers. When he began working for Verpen Security, because of his memory loss, Mr Pemberthy showed him ‘how to do everything in Centro’.

During the period that Mr Bolitho worked for Verpen Security, he said that the movement of the barriers and their stability was the subject of discussion between the security guards and Mr Pemberthy, but he was unable to recall whether it had been discussed in 2008 and early 2009.

In cross-examination, Mr Bolitho agreed that even minor issues, such as blown light bulbs, were recorded in the daily inspection sheets. He agreed that he did not make any written or verbal complaint in relation to the use and manoeuvrability of the barriers to either Mr Dornan or Mr Clark prior to 1 March 2009.

Mark Dohrmann

Mr Dohrmann is a consulting engineer and ergonomist who gave evidence in court and by way of a report dated 29 November 2012 and a letter dated 6 June 2013.

Mr Dohrmann inspected the barriers and interviewed Ms Taylor in Mildura on 31 October 2012. According to his report, Ms Taylor described the system of dismantling the barriers as being first to unlock them where they met in the middle of the concourse and then to fold each inwards in a concertina fashion towards each respective wall. Each of the barriers would then be disconnected from the walls and wheeled to where they were stored. In cross-examination, Mr Dohrmann said that he simply recorded what Ms Taylor had told him. In relation to the system of work actually employed by Ms Taylor, he said that that he ‘had the distinct impression that [the barriers were] free-standing entirely’ and not attached to the wall at the time of the incident.

Mr Dohrmann said this in his report:

When the panels are folded together, with each panel secured with its hook, it is still not a very stable structure. It would not be difficult to tip over if, when pushing it, it struck a small obstruction, or if a castor became stuck, or even if the castors provided some resistance to movement, as most castors do. Its centre of mass is quite high – at least halfway up the height of the panel set. The structure is approximately 1.99 m tall, resting on wheels on a ‘base’ which is trapezoidal – … about 360 mm (long edge) and 200 mm (short edge), and about 910 mm wide. On those dimensions, it could be tipped over by applying a horizontal push at the middle of the closed end panel of only about one fifth of the total weight of the structure (up to about 8 kg, and assuming it did not roll). This would be very easy to do, and inadvertently. Further, a person of Ms Taylor’s height would be likely to push at a point well above the midpoint of the structure (emphasis added).

In his evidence in court, Mr Dohrmann adopted this analysis but said that the barriers could ‘[r]easonably readily’ tip over. When asked why he was not now saying ‘very easy’ as he had written in his report, he said that he had since had an opportunity to read Dr Culvenor’s report and had recalculated the amount of force required to tip the barriers over using the figures for the position of the castor wheels contained therein. Also, he took into account that the barriers were installed in an area with a flat tiled floor, an even gradient and with no wind. Accordingly he had ‘moderate[d]’ his words. He still held to his opinion that a barrier has ‘a propensity to fall over given its design’. He said that a barrier was at its most unstable in a free-standing position when it was in the course of being closed, one panel against the other. But even when fully closed and locked, it was ‘not what I regard as an adequately stable structure to be used in the way I believe it was’.

In regards to the impact of the castor wheels on the force required to tip the barriers over, Mr Dohrmann acknowledged that the surface upon which they rested was flat, tiled and polished. However, whether the castors rolled smoothly also depended on the direction they faced. He noted that ‘[i]f the castors happen to be turned to the disadvantage of rolling the [barrier] might just stay still and make it pretty easy to tip over. If they are turned favourably then you would wheel it away [without incident] … But you can’t guarantee that’.

Mr Dohrmann ‘had no doubt at all’ that the nature and design of the barriers ‘warranted a prescribed and safe system for folding [them] up’. It was unsatisfactory to leave the system of dismantling up to the person performing the task because the stability of the structure varied by as much as three to one depending on the sequence employed to remove them. There was a risk that ‘inadvertence’ could result in the barriers tipping over, especially because there were different ways of performing the task and the operator could adopt an inappropriate method for one reason or another. Things could have been done to minimise the risk of toppling over, such as placing the castor wheels on extended legs, deploying a second person to stabilise the structure, ensuring that the castors were in perfect running condition and providing specific training.

Overall, Mr Dohrmann considered it was ‘more likely than not that there would ultimately be a fall of the panels … in the state [he] saw them in … almost as a matter of inevitability’. Mr Dohrmann said the barriers had a design defect in that they were top-heavy. They were capable of being stood up and remaining upright but, given their design, they had a propensity to fall over. It was put to Mr Dohrmann that, in a period of over three years, the barriers had been removed and installed over 4000 times without incident. He said that, if that were true, this would lend some weight to a conclusion that was contrary to his. But he stood by his conclusion on the basis of the simple physics involved. Further, the fact was that the barrier did fall over and injure Ms Taylor.

Centro
David Clark

Mr Clark is the Operations Manager for Centro in Mildura. He has been in that position for almost 14 years. His evidence was that Superior Detection had been Centro’s security controller from 2008 and Mr Dornan was its principal.

Mr Clark said that the barriers were used every day at the shopping centre from 1 January 2006 to 31 December 2012. When a new security contractor began at Centro it was his practice to conduct a demonstration for the staff as to the barriers’ use. He did this when the new contractor commenced and that was it. If Ms Taylor had been employed by Superior Detection when it took over the contract in 2008, she would have attended such a demonstration. However, when confronted with the fact that Ms Taylor did not start working for Superior Detection until October 2008, Mr Clark admitted that she might not have had any instruction from him about using the barriers. In response to being told that Ms Taylor asserted the extent of the instruction she received was being told to follow another guard around and observe what they did, Mr Clark said ‘[i]f that’s how Steve Dornan wanted to do it, yes, by all means’.

Mr Clark said he personally instructed security guards on how to install and remove the barriers. He did this personally so that everybody would follow the same process. The first step in installing the barriers was to attach them at one end to the Woolworths and Noni B walls, then open them up to be locked in the middle. To remove the barriers, Mr Clark instructed the security guards first to unlock the barriers in the middle, concertina each of them to their respective wall, latch them into position, unlock them from the walls, and then move them to the storage site. The system was based on what he viewed to be common sense. Mr Clark stated that as long as his method was followed exactly, the barriers were safe and stable. He also said that even if one of the T-bar latches came undone, the others would still be in place to provide stability.

In cross-examination, Mr Clark said the barriers were not at risk of toppling over if handled correctly. He agreed that ‘essentially the system … depended on everybody being assiduous in the job that they did and making sure they did absolutely everything correctly’. He also agreed that the system of work ‘made no allowance … for some inadvertence on the part of the worker or … that they might have to hurry one morning’.

Mr Clark said he did not put the method for dealing with the barriers in writing and he did not monitor how they were actually being used. There was no follow up to ensure that the right method was being followed. From time to time, however, he had to remove the barriers himself if one of the security guards was running late to work.

Mr Clark explained that there was a reporting system requiring security staff to fill out forms every day specifying that all tasks had been completed and whether any maintenance was needed. A certain level of detail was required and he referred to examples.

Mr Clark stated that before 1 March 2009 there had been no written or verbal complaints made about the use or manoeuvrability of the barriers or that they were bent and buckled. None of the security guards (including Mr Pemberthy, Mr Collins and Ms Taylor) had complained to him on that account. Mr Dornan made no such complaints. He was not aware of any toppling incidents during that period. He denied inspecting the barriers with Ms Taylor. He said there ‘was never an issue with the barriers’. In the three years prior to 1 March 2009, he was never aware of any incident making him aware of the potential instability of the barriers.

Mr Clark confirmed that, approximately four to six weeks after Ms Taylor’s accident, there was a complaint about one of the barriers being bent or buckled. He addressed that complaint by putting the barrier on the ground and standing on it to bend it back into shape. Mr Clark admitted that, as the barriers weighed 30-40 kg, the likely cause of the bending or buckling was the barrier falling over.

Mr Clark was advised of Ms Taylor’s accident the day after it happened. In response, he inspected the barriers and found them to be in working order.

Mr Clark could not say from whom the original barriers had been purchased. Centro stopped using the barriers because a decision was made to allow access to the public lavatories after hours. This required a different and wider section of the shopping centre to be cordoned off and so a new set of barriers were procured with a longer span.

Steven Dornan

Between 2001 and 2011, Mr Dornan was the managing director of Steve Dornan Pty Ltd, trading as Superior Detection. In 2008 and 2009, Superior Detection provided security services to Centro in Mildura. He was the person in effective control of the company. At the time, the company employed about 15 crowd controllers/security guards of whom six to 10 were employed at Centro, including Ms Taylor.

Mr Dornan said that Centro prepared the daily roster for the security guards and essentially directed what every one of them did in the course of their shift at the shopping centre. In a nutshell, everything to do with the premises and the equipment was Mr Clark’s domain. Superior Detection provided the people who went along on a daily basis to fulfil the shifts.

Referring to the daily inspection sheets which Centro provided, Mr Dornan said the contents of these were largely dictated by Centro. The sheets were submitted to Centro at the end of each shift after being completed by the worker. He did not read the completed sheets.

Mr Dornan gave evidence that, prior to 1 March 2009, he did not receive any verbal or written complaint about the use or manoeuvrability of the barriers, that they were bent or buckled, that a castor wheel was missing or that they had toppled over. Neither, to his knowledge, were any of these issues noted in the diary that his company kept on the premises. More specifically, he denied ever receiving a complaint from Ms Taylor prior to 1 March 2009.

Mr Dornan did not accept that any equipment issues raised by his employees were to be directed to Centro rather than himself. He said that ‘employees knew if there was a serious issue with any of the equipment, [he] was to be notified ASAP’ or they were to note it in a diary kept on the premises which he checked weekly. He denied that he would have told Ms Taylor to refer a complaint to Mr Clark if she had one. He would have contacted Mr Clark directly to ‘ensure that something was done immediately’. He might have told Ms Taylor to speak to Mr Clark directly only if he had been unable to contact Mr Clark himself, which would have been ‘very rare’.

Mr Dornan said that before a security guard could commence working at the shopping centre, it was a requirement that he or she be taken through an induction process by Mr Clark (of Centro) in the presence of Mr Goldrick (Superior Detection’s team leader). Inductions were carried out by Mr Clark because it was Centro’s ‘equipment, he [Mr Clark] was familiar with it and he was the man on the ground on a day to day basis’. It was Mr Clark’s ‘responsibility’. With respect to Ms Taylor specifically, Mr Dornan did not induct her personally but ‘assum[ed] that [Mr Clark], with [Mr Goldrick], did an induction course’. He had no personal knowledge of whether Ms Taylor was given specific instructions about the barriers. In other evidence, Mr Dornan said he left inductions to Mr Clark because he (Mr Dornan) was not trained in that role and he did not know how to operate the centre and its equipment. Also, Mr Clark wanted to ensure that the centre would run like clockwork. In relation to the operation of the equipment, it was therefore agreed between the two of them that Mr Clark was the best person to perform the induction role.

Mr Dornan said Centro owned and provided the premises, including the equipment, such as the barriers. It dictated the system of removing them in the morning and installing them in the evening. This was just one aspect of the work that his employees did at the premises which was guided and directed by Centro. The system for installing and removing the barriers was Centro’s. Mr Dornan simply ‘took over a system that pre-existed [his] company coming on the scene’. He looked at the system when Superior Detection first won the contract. He did not see any fault in it so he left it in place. However, Mr Clark did not tell him the specifics of how the barriers were to be folded and unfolded in the installation and removal process.

Mr Dornan said that he did not know whether, on the day of the accident, Ms Taylor was operating the barriers in accordance with the method specified by Mr Clark.

John Culvenor

Dr Culvenor is a consultant engineer. He inspected the barriers at the Centro shopping centre on 2 and 3 April 2012. He measured and handled them himself and observed a re-enactment of the incident involving Ms Taylor which was conducted by others. He gave written evidence in a report and oral evidence in court.

Dr Culvenor said that the stability of the barriers was ‘adequate’. Remembering that the barriers were mobile, the barriers raised ‘no stability issues’ in his mind. The centre of gravity of the barriers was in the middle. The barriers’ base of support, concertina design and the presence of wheels made them not particularly easy to push over, whether unfolded or folded. If the barriers were pushed, they would roll rather than fall. When asked what would happen if the wheels did not roll, Dr Culvenor said that scenario would be ‘more like tipping over a bookcase’. He would not comment on the fact that a number of people had given evidence that the barriers were difficult to manoeuvre. When asked whether reports of the barriers’ tipping over would change his assessment, he said ‘[i]f someone has concerns about something then that would add to the ingredients in the cake mix … but I would still need to make a judgment about it myself’.

In relation to the system of work, Mr Culvenor said it was ‘appropriate’, ‘intuitive’ and ‘obvious’. Assuming that the barriers were folded and unfolded in a free-standing position, there was no real difference between the various ways of doing so. He observed on-site a security guard moving a folded barrier as if it were being unfolded and folded again. He understood that this re-enactment was carried out according to the normal routine. He was not told that there was a particular method of opening and folding the barriers. He did not think that there was a set system and could not imagine that there would be one. He did not know whether the re-enactment was carried out according to the method which Ms Taylor used on the day.

Mr Culvenor said the stability of the barriers was enhanced by a design which used a hinge that could not be fully straightened. Even at full extension, the barriers would have a zig-zag pattern. Therefore, both extended and fully closed, the barriers were pretty difficult to push over.

Mr Culvenor said he could not be clear from the accounts given by Ms Taylor how the accident happened precisely.

FINDINGS

On this evidence, Ms Taylor was employed by Superior Detection as a security guard. Their relationship was one of employer and employee.

Centro engaged Superior Detection to provide security services at the shopping centre. Their relationship was one of principal and contractor.

Ms Taylor was assigned to the centre by Superior Detection for the purpose of performing the security services which it had contracted with Centro to provide. In purely formal terms, the relationship between Centro and Ms Taylor was one of occupier and visitor or invitee. Because she was working at the centre, their relationship had particular features which require consideration.

Although Ms Taylor always remained Superior Detection’s employee, the work which she did at the centre was very much under Centro’s practical management and control. Centro owned and managed the centre and its equipment, including the barriers. Centro designed and controlled the system for installing and removing the barriers and was responsible for ensuring that the system was actually employed by Superior Detection’s guards, including Ms Taylor.

Although the security work was performed under Centro’s practical management and control, Superior Detection was not wholly removed from the centre and remained actively engaged with its employees. Understandably, this engagement did not extend to monitoring every detail of the work which they performed. Under the contractual arrangements, Centro could and did specify the actual content of the work which had to be done. The inspection sheets were one way by which it did so.

Centro accepted responsibility for playing the leading role in the induction, training and supervision of Superior Detection’s employees in relation to the installation and removal of the barriers. It was agreed between Centro and Superior Detection that Centro was in the best position to do so. The safety of the installation and removal process depended on the method stipulated by Centro being followed. According to that method, the panels were not to be locked together when the barrier was in a free-standing position. The barriers had to be unlocked from the walls of the concourse as the last removal step.

Ms Taylor was shown how to install and remove the barriers by other Superior Detection guards working at Centro when she was assigned to the centre. She was never given any induction or training by Centro. She was never shown by anybody what Centro’s specified method for installing and removing the barriers was. Her actual practice was never monitored by Centro to ensure that she followed the specified method, or at all. She was left to carry out the task as she best could.

Ms Taylor’s actual method on the day of the accident differed from Centro’s specified method. When the barriers fell over, the panels were not all locked together and the barrier as a whole was in a free-standing position on the concourse. It was not locked at one end to the wall. Centro did not know that, at the time, Ms Taylor was employing this method, which (I infer) was the method which she usually employed. With even modest oversight, Centro could have discovered that she was employing a method other than a specified method.

The barriers were four panels wide and made of steel mesh. The panels immediately next to each other could be locked together and the four of them could be locked together as a whole. The barriers had four relatively small castor wheels which were located on the bottom of the narrow frame of the first, second and fourth panels, not on an off-set base. According to Mr Dohrmann’s report, the panels were 1.92 metres in height and 0.93 metres in width. The barriers weighed 30-40 kilograms each. They were nearly four metres in length, fully extended. For a woman of average build, which Ms Taylor was, the barriers were large and difficult to manoeuvre.

It was Dr Culvenor’s opinion that the stability of the barriers was adequate and they could not easily be pushed over. Both extended and fully closed, they were pretty difficult to push over. I do not accept this opinion.

On Mr Dohrmann’s evidence, which I prefer, the panels were not very stable, extended or fully closed. They could be tipped over reasonably readily. In my view, that was not due to any fault of manufacture but simply to the physical features of the barriers. I prefer Mr Dohrmann’s evidence because it was more consistent with the whole of the evidence, the established facts of the circumstances of the accident, the physical features of the barriers and the difficulties involved in moving them.

I therefore find that the barriers represented a significant risk of injury to workers, including Ms Taylor, unless the method stipulated by Centro was employed in the installation and removal process. In the long run, with so many occasions of installation and removal, there was a real possibility of that method not being employed unless Centro enforced it with appropriate rigour. It did not enforce it at all and it was not followed by Ms Taylor on the day of the accident. Unfortunately, on that day, the risk eventuated and she was injured in consequence.

I accept Mr Dohrmann’s evidence that there were things which Centro could readily and practicably have done to ameliorate the risk. For example, it could have enforced the preferred method of removal with appropriate training and follow up or required two persons for the job. It did not do so.

The barriers were installed and in daily use at least from 1 January 2006 to 1 March 2009, during which time they were installed and removed every day, seven days a week, including by Superior Detection’s employees. This represented at least 4,600 occasions. The evidence was conflicting but, on the whole of the evidence, it has been not been established by the VWA that a barrier had toppled over on any occasion prior to 1 March 2009. One did so afterwards.

The evidence was also conflicting about the absence of complaint in respect of the use and manoeuvrability of the barriers. As a whole, it does not support a finding that such a complaint was made to Centro prior to 1 March 2009. Centro had a system in place for receiving complaints or comments about operational issues which was readily used by Ms Taylor and other employees, including in relation to the barriers, but nothing was ever written about their use or manoeuvrability.

I accept Mr Clark’s evidence that, four to six weeks after Ms Taylor’s accident, there was a complaint about one of the barriers being bent or buckled. That was probably because it had fallen over. He straightened it out by standing on it. I am unable to find whether Ms Taylor had any involvement in this complaint or any other relating to the barriers being bent or buckled. I do find that there was no complaint about the barriers being bent, buckled or otherwise damaged prior to 1 March 2009.

I also accept Centro’s submission that, on the whole of the evidence, the VWA did not establish that Centro’s system of work for installing and removing the barriers ever failed between 1 January 2006 to 1 March 2009, the system having been implemented in that period by workers, including the six to 10 security guards who were employed by Superior Detection.

It follows that I accept Centro’s submission that its position on 1 March 2009 was that the system of work for installing and removing the barriers had been in place for some three years without incident or relevant complaint. The company was therefore not on express or actual notice that the system might fail. I do not accept that a reasonable person in that position would not have foreseen that the system of work which Centro designed and controlled involved a significant risk of injury to a worker. It was an accident waiting to happen.

LIABILITY

Those being the facts of the case, the first question to determine is whether Centro is liable under the common law to pay damages because Ms Taylor’s injuries were caused by its negligence at common law or, alternatively, under the Wrongs Act because of its failure to take reasonable care of her as an occupier.

In my view, the liability question can be wholly answered by reference to the common law claim based on negligence. It is not necessary to consider the statutory claim based on occupier’s liability.

The relationship between Centro and Ms Taylor was clearly such that the company owed her a duty of care when she was present in the centre performing security services during the course of her employment with Superior Detection. The dispute in this case was confined to the scope of that duty and whether it had been breached.

Centro submitted that I should identify the scope of its duty of care towards Ms Taylor narrowly. It emphasised that Superior Detection was not a labour hire company but an independent contractor in the true sense. At all times it remained responsible for Ms Taylor as her employer and she was not hired out to Centro. It would not be accurate to describe Centro as Ms Taylor’s ‘host employer’ or ‘de facto employer’. In consequence, authorities like TNT Australia Pty Ltd v Christie[1] and Roche Mining Pty Ltd v Jeffs[2] had to be distinguished. The security service function was not being performed by Centro at all but by Superior Detection as a subcontractor. Moreover, unlike the workers in Stevens v Brodribb Sawmilling Co Pty Ltd,[3] Ms Taylor was not a self-employed independent contractor for whom no employer was responsible.
[1](2003) 65 NSWLR 1 (Mason P, Davies and Foster A-JJA) (‘TNT Australia’).
[2][2012] Aust Torts Reports ¶82-110 (New South Wales Court of Appeal) (McColl and Basten JJA, Tobias AJA) (‘Roche’).
[3](1986) 160 CLR 16 (Mason, Wilson, Brennan, Deane and Dawson JJ) (‘Stevens’).

In this connection, reliance was placed on evidence showing that Superior Detection, not Centro, was responsible for paying Ms Taylor’s wages. Moreover, Superior Detection had weekly meetings with its employees working at Centro and significant involvement in the activities which they performed. Superior Detection behaved like an independent contractor, not a labour hire provider. As an independent contractor, it was paid a fee for the provision of security services to Centro.

In Centro’s submission, it followed that the duty of care which it owed to Ms Taylor was not that standard of care which was owed by an employer to an employee or anything analogous. It was a lower standard of care, as stipulated in Leighton Contractors Pty Ltd v Fox.[4] Judged against the appropriate standard of care, Centro had not breached its duty to Ms Taylor and was not liable to pay damages in respect of her injuries.
[4](2009) 240 CLR 1, 12 [21] (French CJ, Gummow, Hayne, Heydon and Bell JJ) (‘Leighton’).

For the following reasons, I find that Centro did breach its duty of care to Ms Taylor and cause her injuries for which it is liable to pay damages.

The scope of the duty and whether it was breached turns critically in the present case on the control and management which Centro exercised over the system of work and use of the equipment at the centre, including the barriers. The onus rests upon the VWA to establish that Centro was negligent in the way in which it exercised that control and management. That onus was well described by Windeyer J in Vozza v Tooth & Co Ltd:[5]

For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, ‘What is “a proper system of work” is a matter for evidence, not for law books’: per Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes.[6]

[5](1964) 112 CLR 316, 319.

[6][1959] AC 743, 760.

Centro had to take reasonable steps to minimise foreseeable risks. In determining whether it did, it is important that the standard not be set too high or applied loosely. As Windeyer J also explained in the later case of Mount Isa Mines Ltd v Pusey,[7] the standard is reasonableness not perfection, and one must not simply reason back from the circumstances of the accident:

Foreseeability here predicates the foresight of a reasonable man. The reasonable man is not here anyone on the Clapham omnibus. He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v Young,[8] ‘a reasonable hypothetical observer’. He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot shew that the event was foreseeable. Fullagar J. spoke of this in Rae v Broken Hill Pty Co Ltd:[9]
‘The fact of the happening of the accident is, of course, itself a relevant consideration, but, in considering whether it ought to have been foreseen, it is wrong to take as the standard of comparison a person of “infinite-resource-and-sagacity”.’

[7](1970) 125 CLR 383, 397.

[8][1943] AC 92, 111.

[9](1957) 97 CLR 419, 422.

Guidance can be obtained from the authorities about the application of these general principles in factual settings like the present.

In Alcoa Portland Aluminium Pty Ltd v Husson,[10] the Court of Appeal dismissed an appeal against an award of damages made in favour of the employee of a contract rigging company who was injured by a hazardous protrusion when performing work at Alcoa’s mill for his employer. In upholding the decision of the trial judge that Alcoa had breached its duty of care to the worker, Chernov JA (Neave JA agreeing; Maxwell ACJ dissenting in the result) took into account the particular circumstance that the contractual arrangements between Alcoa and the rigging company ‘envisaged that Alcoa would retain overall operational control of the mill’.[11] The presence of the hazard fell within that operational control. The circumstances were not such that the company could reasonably have been expected to identify it before the worker’s attendance.[12]
[10](2007) 18 VR 112 (Maxwell ACJ, Chernov and Neave JJA) (‘Alcoa’).
[11]Ibid 135 [80].
[12]Ibid.

In Roche, the New South Wales Court of Appeal dismissed an appeal against an award of damages made in favour of the employee of a labour hire company who was working in the mine which Roche operated. Roche owned the plant and equipment which was used at the mine, including the large truck from which the employee fell.

As in the present case, it was not disputed in Roche that the mine operator owed the employee of the labour hire company a duty of care. McColl JA (Basten JA and Tobias AJA agreeing)[13] endorsed the decision of the trial judge that the general scope of that duty was to be ascertained by reference to the statement of Brennan J in Stevens[14] that the duty was ‘to take reasonable care to avoid unnecessary risks of injury and to minimise other risks of injury’.
[13](2012) Aust Torts Reports ¶82-110, 66,330 [62].
[14](1986) 160 CLR 16, 47.

Applying the judgment of Hayne J in Modbury Triangle Shopping Centre Pty Ltd v Anzil,[15] McColl JA also agreed with the trial judge that the scope of the duty ‘had to be determined by reference to the facts’.[16] Her Honour cautioned against allowing the cause of the injury to determine the scope of the duty.[17]
[15](2005) 205 CLR 254, 289 [103] (‘Modbury’).
[16](2012) Aust Torts Reports ¶82-110, 66,330 [63].
[17]Ibid.

The point made by Hayne J in Modbury is equally apposite in the present case. His Honour said that, except in a case falling within simple and well-known categories, the extent of the duty of care was determined ‘from the facts which give rise to [the] claim’.[18] Hayne J endorsed[19] the remarks of McHugh J in Perre v Apand Pty Ltd[20] that it fell for determination in relation to ‘concrete facts arising from real life activities’.
[18](2005) 205 CLR 254, 290 [103].
[19]Ibid 289 [103].
[20](1999) 198 CLR 180, 211 [80].

Bearing these principles in mind, McColl JA in Roche also agreed with the trial judge that the content of Roche’s duty of care was to provide the worker ‘with a safe system of work and safe plant with which to carry out his work’.[21] In this connection, her Honour had regard to the particular facts that Roche was responsible for operating the mine, was in control of the system of work and owned the plant and equipment concerned.[22]
[21](2012) Aust Torts Reports ¶82-110, 66,330 [63].
[22]Ibid 66,330 [62].

The evidence demands that similar findings be made in the present case about the control and management which was exercised by Centro over the system of work and the equipment of the centre.

It can be seen that the identification of the content of the duty does not proceed simply from the categorisation of the relationship between the alleged tortfeasor and the worker as analogous to employment. It looks to the incidents of the relationship in terms of the actual exposure (if any) of the worker to a risk of injury in the performance of the work and such considerations as who was responsible for the design and implementation of the system of that work. So, in Stevens, the timber company organised a dangerous log making activity which the independent contractors were required to carry out. The company was found to owe the contractors a duty of care to minimise the risks because they were endangered by the activity, not simply that they were in a relationship of principal and contractor. Explaining that conclusion,[23] Brennan J referred to Sutherland Shire Council v Heyman[24] where his Honour said:

a duty to act to prevent foreseeable injury to another may arise when a transaction – which may be no more than a single act – has been undertaken by the alleged wrongdoer and that transaction – or act – has created or increased the risk of that injury occurring. Such a case falls literally within Lord Atkin's principle in Donoghue v Stevenson.[25] Where a person, whether a public authority or not, and whether acting in exercise of a statutory power or not, does something which creates or increases the risk of injury to another, he brings himself into such a relationship with the other that he is bound to do what is reasonable to prevent the occurrence of that injury unless statute excludes the duty. An omission to do what is reasonable in such a case is negligent …[26]

[23](1986) 160 CLR 16, 47.

[24](1985) 157 CLR 424.

[25][1932] AC 562.

[26](1985) 157 CLR 424, 479.

The necessity of attending to the relevant factual circumstances was stressed in Leighton,[27] a case involving the duty of care owed by Leighton (the principal contractor at a building site) to an independent contractor employed by a subcontractor. The independent contractor was injured during a clean-up operation after a concrete pour. The question was whether Leighton owed the independent contractor a duty to organise the work so as to minimise that risk.
[27](2009) 240 CLR 1.

French CJ, Gummow, Hayne, Heydon and Bell JJ proceeded on the basis ‘that Leighton, as the occupier of the site, owed a duty to persons coming on it to use reasonable care to avoid physical injury to them’.[28] That is the general duty which applies to Centro in the present case. The court held that Leighton did not have a duty to provide training in the safe method of cleaning up after a concrete pour because that fell within the ordinary scope of the work of the subcontractor and independent contractor concerned.[29]
[28]Ibid 21 [48].
[29]Ibid 23 [52].

The decision in Leighton is to be distinguished from the present case. The scope of the duty which Centro owed to Ms Taylor has to take into account the practical control and management which Centro exercised over the design and implementation of the system of work and the equipment of the centre. That particular feature of the facts of the present case was absent from the facts in Leighton.

One of the factual circumstances which is important in the present case is that Ms Taylor was present in the shopping centre for the provision of security services to Centro on behalf of her employer, Superior Detection. As was held by Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ in Thompson v Woolworths (Q’land) Pty Ltd,[30] ‘the purpose for which, and the circumstances in which, the [worker] was on the [occupier’s] land, [constitutes] a significant aspect of the relationship between them’.[31] In that case, to the knowledge of the operator, contractors delivering goods to a supermarket fell into the habit of moving heavy industrial waste bins so as to facilitate deliveries, exposing them to risk of injury. As delivery contractors were regular visitors to the premises, the court held that ‘it was reasonable to require [the operator] to have them in contemplation as people who might be put at risk by [its] choice of facilities and procedures for delivery’.[32]
[30](2005) 221 CLR 234 (‘Thompson’).
[31]Ibid 244 [26].
[32]Ibid 244 [27].

In relation to the risks associated with the installation and removal of the barriers, Ms Taylor regularly attended Centro’s premises as a worker engaged in that and other security-related tasks. In my view, she fell within the reasonable contemplation of Centro as someone whose safety was endangered by those risks. It is true that, by contrast with the supermarket operator in Thompson, Centro was not aware that Ms Taylor was not following its prescribed system of work. But it should have been and, with modest oversight of her work, would have been. It should also have provided her with proper training in the task, which it did not.

Another of the factual circumstances which must be taken into account in the present case is that, at all times, Ms Taylor remained the employee of Superior Detection. Therefore Superior Detection, at all times, owed Ms Taylor a non-delegable duty to take reasonable care of her safety in the performance of her work at Centro. The reasons for firmly insisting on the application of this duty were cogently explained by Mason P in TNT Australia[33] in the related context of labour hire:

it would be contrary to principle to enable or even to encourage an employer that operates a labour hire business to treat the normal incidents of the employment relationship as modified simply because its employees are sent off to work for a client. Indeed, the very fact that employees are dispatched to external venues and placed under the de facto management of outsiders will, in some cases, have the practical effect of requiring the employer to adopt additional measures by way of warning or training in order to discharge its continuing common law duty of care to its employees.[34]

[33](2003) 65 NSWLR 1.

[34]Ibid 15 [67].

In the facts and circumstances of TNT Australia, both the actual employer and the operator of the workplace were held to be liable in negligence for the injury to the worker. In the facts and circumstances of the present case, both Centro and Superior Detection should be found liable in negligence for the injury to Ms Taylor. The liability of Centro arises out of the risk of injury which the barriers presented to Ms Taylor and other workers and the practical control and management which it exercised over the system of work and the equipment of the centre. In respect of her work in relation to the barriers, Centro did not owe the same duty of care to Ms Taylor as an employer would have owed[35] but, by reason of those facts and circumstances, it owed to her a comparable standard of care. The liability of Superior Detection arises out of its non-delegable duty of care towards Ms Taylor as her employer.
[35]Stevens (1986) 160 CLR 16, 47 (Mason, Wilson, Brennan, Deane and Dawson JJ).

Returning to Roche, McColl JA agreed with the trial judge in relation to the principle that:

a person in Roche’s position is required, when devising a system of work, to take into account inadvertence or miscalculation on the part of those who have to implement that system, especially when it is known, or ought to be known, by that party that the system as designed involves a real risk of injury …[36]

[36](2012) Aust Torts Reports ¶82-110, 66,332 [77].

As her Honour said,[37] that principle was applied in McLean v Tedman[38] which held an employer liable in negligence for allowing an employee to adopt a practicable but unsafe system of work. In that case, Mason, Wilson, Brennan and Dawson JJ said:
[37]Ibid.
[38](1984) 155 CLR 306 (‘McLean’).

There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.[39]

Their Honours went on to say:
The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming, Law of Torts, 6th ed. (1983), pp.480-481). And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.[40]

Applying these principles to the case before the court, their Honours said:
The circumstance that the system of work … was not prescribed by the management of Brambles but seems to have evolved as a matter of choice by the men carrying out the work does not absolve the employer from what otherwise would amount to a breach of duty. It means either that [the employer] failed to establish a system of work or that it was content to acquiesce in the system of work adopted by the employees. [41]

[39]Ibid 312.

[40]Ibid 313. On the importance of accident prevention to the duty to provide a safe system of work, see also Schellenberg v Tunnel Holdings Pty Ltd (1999) 200 CLR 121, 159-61 [101]-[102] (Kirby J).

[41](1984) 155 CLR 306, 313. The principles enunciated in McLean were recently applied by Hansen and Tate JJA and Beach AJA in Duffy v Salvation Army (Victoria) Property Trust [2013] VSCA 253 (20 September 2013) [51]-[54], [56] (‘Duffy’), a case concerning the liability of occupiers under pt IIA of the Wrongs Act.

McLean was a case in which the duty arose between employer and employee in circumstances in which the employer was responsible for the system of work. Roche was a case in which the duty arose between the employee of a contractor and the operator of a mine. McColl JA had regard to the control which the operator exercised over the system of work and held that the same principles applied. In the present case the duty arises between Ms Taylor, the employee of the contractor, and Centro, the operator of the shopping centre. Having regard to Centro’s control and management of the system of work and the equipment, these principles apply here also.

It is not at all clear to me that Ms Taylor was inadvertent in performing the removal task on the day of the accident. She certainly was not negligent. I would prefer to put it that she was doing her reasonable best when the barrier toppled over and injured her. Centro should have had a system of work in place which addressed the foreseeable risk of that kind of thing happening. If Ms Taylor was inadvertent, that too was entirely foreseeable. Avoidance of that risk should have been built into the system of work which Centro controlled and managed.

In determining the scope of the duty of care and whether it has been breached, it is necessary to take into account that, in the three year period leading up to the accident, the barriers had not previously toppled over and no complaints about their use or manoeuvrability had been made to Centro.

As Heydon, Crennan and Bell J said in Kuhl v Zurich Financial Services Australia Ltd,[42] the ‘incident-free history of … equipment is not irrelevant’. But their Honours also said that it was ‘not determinative’.[43] In that case, it was held that the external supplier of equipment used by a company’s workers owed to them a duty of care to minimise avoidable risk of injury by issuing the appropriate instructions on which the safe operation of the equipment depended. The court reached that conclusion even though the equipment had been used for months without incident and the employing company had every opportunity to examine it and the way it was being used. In doing so, the court had particular regard to the practical control which the supplier had over the system of work.[44]
[42](2011) 243 CLR 361, 391 [82].
[43]Ibid.
[44]Ibid.

In the present case, I give as much weight as I can to the lack of previous incident or complaint in relation to the use and manoeuvrability of the barriers. But, on the evidence, the objective physical features of the barriers and the way Centro allowed Ms Taylor and other workers to install and remove them gave rise to a significant risk of injury. The barriers were aptly described for the VWA as an accident waiting to happen. It was entirely fortuitous that, on the evidence, the process of installation and removal went for three years without that happening. The numerical analysis to the question of the defendant’s alleged breach of the duty of care which was adopted by Priestly JA in Makita (Australia) Pty Ltd v Sprowles[45] is not persuasive when considered in the context of the whole of the facts of the present case.
[45](2001) 52 NSWLR 705, 707 [5].

As submitted for Centro, the duty of care which it owed to Ms Taylor was, in the words of Kirby J in Schellenberg v Tunnel Holdings Pty Ltd,[46] a duty ‘to take reasonable care to avoid exposing [the worker] to unnecessary risk of injury’.[47] This is not a duty of strict liability. While workers’ compensation is available under legislation in cases of injury in defined circumstances, damages for negligence at common law are available only if want of reasonable care is established.[48]
[46](1999) 200 CLR 121.
[47]Ibid 159 [101] (footnote omitted).
[48]Ibid.

Applying the principles which I have here set out, I conclude that want of reasonable care has been established. I find that Centro exercised control and management over the systems of work and equipment at the centre, including in relation to the barriers. To a woman of average build like Ms Taylor, they were large and difficult to manoeuvre. They were liable to topple over reasonably readily and represented a significant risk of injury to Ms Taylor. As a worker at the centre who was responsible for installing and removing the barriers, that risk of injury to her was reasonably foreseeable by Centro. It owed her a duty of care to design, maintain and implement a safe system of work for installing and removing the barriers. It did not do so. The fault was not in the manufacture and design of the barriers but in the way that Centro allowed them to be installed and removed. Centro could have taken but did not take reasonably practicable steps to ameliorate the risk. It did not provide any training to Ms Taylor on the proper method for carrying out the removal and installation process and did not monitor the way in which the task was actually carried out by her. Centro thereby breached its duty of care to Ms Taylor and is liable in negligence to pay damages in respect of her injuries. The first question will be answered accordingly.

CONTRIBUTION

As we have seen, the amount of the indemnity in favour of the VWA takes into account factor X, being ‘the extent, expressed as a percentage, whereby the third party’s act, default or negligence, caused or contributed to the injury or death’ (s 138(3)(b) of the Accident Compensation Act).

The extent of Centro’s contribution to Ms Taylor’s injuries which is represented by its negligence falls to be determined by the principles of proportionate liability which have been laid down in the authorities. There was no dispute between the parties as to the applicable principles.

In Goddard Elliot v Fritsch,[49] I discussed the principles of proportionate liability which are applied in this court.[50] As was common ground in this case, those principles were stated by Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Podrebersek v Australian Iron & Steel Pty Ltd:

A finding on a question of apportionment is a finding upon a ‘question, not of principle 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 differences of opinion by different minds’[51] … Such a finding, if made by a judge, is not lightly reviewed … The task of an appellant is even more difficult when the apportionment has been made by a jury[52] … In the circumstances to which reference has been made, it is not possible to say that it was unreasonable for the jury to place almost the entire responsibility for the damage on the appellant himself, and to make the apportionment that they did.[53]

Their Honours went on to say:
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man[54] … and of the relative importance of the acts of the parties in causing the damage[55] … 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, if any, importance.[56]

[49][2012] VSC 87 (14 March 2012) [1115]-[1118].

[50]See Moore v Scolaro’s Concrete Constructions Pty Ltd [2004] VSCA 152 (1 September 2004) [8]-[9] (Callaway JA, Buchanan JA and Dodds-Streeton AJA agreeing) (‘Moore’); Kingswood Golf Club Ltd v Smith [2005] VSCA 224 (16 September 2005) [25] (Callaway JA, Maxwell P agreeing), [51] (Ashley JA); Alcoa (2007) 18 VR 112, 136 [86] (Chernov JA, Neave JA agreeing); Metzke v Sali [2010] VSCA 267 (15 October 2010) [64] ff (Warren CJ, Neave JA and Beach AJA).

[51]British Fame (Owners) v Macgregor (Owners) [1943] AC 197, 201 (Lord Wright).

[52]Zoukra v Lowenstern [1958] VR 594 (Herring CJ, O’Bryan and Dean JJ).

[53](1985) 59 ALJR 492, 493-4 (‘Podrebersek’).

[54]Pennington v Norris (1956) 96 CLR 10, 16 (Dixon CJ, Webb, Fullagar and Kitto JJ) (‘Pennington’).

[55]Stapley v Gypsum Mines Ltd [1953] AC 663, 682 (‘Stapley’); Smith v McIntyre [1958] Tas SR 36, 42-9 (Burbury CJ, Gibson and Crisp JJ) (‘Smith’); Broadhurst v Millman [1976] VR 208, 219 (Gowans and Menhennit JJ, Dunn J agreeing).

[56]Podrebersek (1985) 59 ALJR 492, 494 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).

After referring to those principles, in Goddard Elliott I said:[57]

So, what is required is a consideration of both the culpability of the departure from the standard of reasonable care and the relative importance of the acts of the parties which caused the damage. An apportionment which has been ‘driven by causation’[58] will not be in conformity with the principles. The concept of culpability which is applied is not ‘moral blameworthiness but [the] degree of departure from the standard of care of the reasonable man’.[59] It is accepted that there may be ‘some merger or overlap of the questions of culpability and importance of the wrongful acts to the injury’.[60]

[57][2012] VSC 87 (14 March 2012) [1116].

[58]Moore [2004] VSCA 152 (1 September 2004) [15] (Callaway JA, Buchanan JA and Dodds-Streeton AJA agreeing).

[59]Pennington (1956) 96 CLR 10, 16 (Dixon CJ, Webb, Fullagar and Kitto JJ); Kakouris v Gibbs Burge & Co Pty Ltd [1970] VR 502, 512 (Winneke CJ, Pape and Adam JJ); Broadhurst v Millman [1976] VR 208, 219 (Gowans and Menhennitt JJ, Dunn J agreeing).

[60]Alcoa (2007) 18 VR 112, 137 [87] (Chernov JA, Neave JA agreeing).

I then went on to make these remarks about the issue of culpability:[61]

In relation to culpability, Podrebersek cited Pennington v Norris.[62] There the appeal was allowed because the apportionment did not take sufficient account of negligence which was ‘in a high degree more culpable, more gross, than that of the plaintiff’.[63] Podrebersek also referred to the judgment in Smith v McIntyre.[64] The relevant passage contains an extensive analysis of the culpability aspect of the principle. Burbury CJ, Gibson and Crisp JJ discussed the considerations which might influence a finding of apportionment, including who created the hazard which ultimately caused the injury,[65] the age, role and position of the person causing the damage[66] and failing to take an obvious and available last opportunity to avoid the damage.[67] In a concluding passage which brought the strands of the analysis together, Burbury CJ, Gibson and Crisp JJ said a combined consideration of all the circumstances was required:

We think the true view is that there is no dichotomy between culpability and causation. A comparison of degrees of fault between two negligent actors requires an examination of the whole conduct of each in relation to the circumstances of the accident. The degree of departure from the standard of the reasonable man on the part of either should not be assessed without considering the extent to which that departure was a contributing cause of the accident. A variety of factors may enter into a judicial determination as to which party has the greater share in the responsibility for the accident. There is no single touchstone of responsibility. In one case the emphasis may be on comparative degrees of negligent conduct: it may be found that the negligence of one party is much more culpable than that of another – approaching the criminal standard of negligence – as against slight negligence on the part of the other. In another case the emphasis may be on the greater importance to be attached to the conduct of one party as a causative factor. In another case there may be little to distinguish between the conduct of each party in his departure from the standard of the reasonable man, but the negligence of one party may have brought about a hazardous situation and the negligence of the other party may have consisted in failing to avoid the consequences of that negligence. It is the whole conduct of each negligent actor in relation to the circumstances of the accident which must be subjected to comparative examination.[68]

[61][2012] VSC 87 (14 March 2012) [1117].

[62](1956) 96 CLR 10 (Dixon CJ, Webb, Fullagar and Kitto JJ).

[63]Ibid 16.

[64][1958] Tas SR 36 (Burbury CJ, Gibson and Crisp JJ).

[65]AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100, 103 (Dixon CJ, Webb and Kitto JJ); McFarlane v Neshausen [1952] NZLR 292, 295 (Hutchison J); and Smith itself [1958] Tas SR 36, 50 (Burbury CJ, Gibson and Crisp JJ).

[66]Davies v Swan Motor Co (Swansea) Ltd [1949] 2 KB 291, 326 (Lord Denning).

[67]Smith [1958] Tas SR 36, 48 (Burbury CJ, Gibson and Crisp JJ).

[68]Ibid 46-7.

Finally I said:[69]

In relation to the relative importance of the acts of the parties, Podrebersek cited Stapley v Gypsum Mines Ltd.[70] There the much greater immediate contribution to the cause of the damage by the acts of the negligent party brought onto it a much greater responsibility for the loss.[71]

[69][2012] VSC 87 (14 March 2012) [1118].

[70][1953] AC 663 (Lord Reid).

[71]Ibid, 682.

On the basis of these principles, it was submitted for the VWA that a proportionate liability assessment of 80/20 against Centro was justified in view of its higher moral culpability for Ms Taylor’s accident and injuries and the greater importance of its contribution to the cause of the accident.

It was submitted for Centro that the contribution as between it and Superior Detection should be 50/50 not 80/20. Superior Detection was an independent contractor who had placed Ms Taylor on site and remained responsible for her as the employer. Its duty was non-delegable. The company maintained regular contact with its employees and Centro. It was for Superior Detection to satisfy itself that the system of work in place was safe. Superior Detection’s team leader, Mr Goldrick, was involved in training and induction, including in relation to Ms Taylor.

In my view, a comparison of both the moral culpability of Centro for departing from the standard of care expected of a reasonable person and the relative importance of its contribution to causing injury to Ms Taylor reveals that it should be assessed as having made a significantly greater contribution than Superior Detection.

In relation to both moral culpability and relative importance of contribution, the critical consideration is that, under the contractual arrangements between Centro and Superior Detection, Centro maintained control and management of the systems of work and the equipment of the centre, including the installation and removal of the barriers. It was primarily responsible for training Superior Detection’s employees, including Ms Taylor, in the proper use of the barriers. Superior Detection was in a secondary position in that regard. This was to be expected. Superior Detection was an external security company providing workers on-site to a shopping centre. The actual tasks to be performed were specified by Centro. In relation to the actual manner in which the work was to be performed, Centro was the dominant partner in the relationship with Superior Detection.

By reason of the control and management which was exercised by Centro, it was in a position of immediate responsibility for the safety of those workers, including Ms Taylor, who operated within the zone of risk which the deficient systems of work created. That zone of risk was not created by Superior Detection because it was not responsible for specifying the tasks which the workers had to perform, designing the systems of work or supplying the equipment. Superior Detection was not in a position of immediate responsibility for the safety of the workers, except in the sense that it had a non-delegable duty for their care. For causing the accident which happened and Ms Taylor’s injuries, the greater moral failing and material contribution was that of Centro.

However, I accept Centro’s submission that Superior Detection remained at all times the employer of Ms Taylor. As I have emphasised already, it had a non-delegable duty of care towards her. It did remain engaged with the employees at the centre and participated in training them, even though the main responsibility in that regard was exercised by Centro. In my view, it should have been clear to Superior Detection that the system of work for installing and removing the barriers was deficient. When Ms Taylor was assigned to the centre, it should have satisfied itself that she had received training from Centro in the method to be employed for installing and removing the barriers. If due inquiries had been made, they would have revealed that she had not received that training. Superior Detection placed Ms Taylor in a position of vulnerability and at risk of injury in an accident that was waiting to happen. It therefore made a material contribution to the cause of the accident and does share significant moral blame for what occurred.

In my view, in all of the facts and circumstances the appropriate proportionate liability assessment is that Centro’s negligence caused or contributed to Ms Taylor’s injuries to the extent of 75 per centum and Superior Detection’s contribution was 25 per centum.

CONCLUSION

The Victoria Workcover Authority has succeeded in establishing that Centro Property Management (Vic) Pty Limited is liable to pay damages to Amanda Taylor because her injuries were caused by its negligence. Centro is therefore liable to indemnify the VWA under s 138(1) of the Accident Compensation Act for the compensation paid to Ms Taylor in respect of her injuries.

The extent, expressed as a percentage, whereby Centro’s negligence contributed to Ms Taylor’s injuries is 75 per centum. That is factor X in the formula specified in s 138(3)(b). Centro is liable to indemnify the VWA in an amount to be calculated according to the formula on that basis.

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Victorian WorkCover Authority v Centro Property Management (Vic) Pty Limited [2013] VSC 587

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[2013] VSC 587

1 NOVEMBER 2013 (Melbourne)